STOCK PURCHASE AGREEMENT

This STOCK PURCHASE AGREEMENT (this “ Agreement ”) is dated as of January 16, 2006, by and among Appalachian Oil Company, Inc., a Tennessee corporation (the “ Company ”), the stockholders of the Company identified on the signature page hereto (collectively referred to herein as “ Sellers ” and each individually as a   “ Seller ”), NewGen Technologies, Inc., a Nevada corporation (“ Parent ”)   and   Refuel America Acquisition Corporation, a Delaware corporation (“ Acquisition Subsidiary ”) and a wholly-owned subsidiary of Parent.

Sellers desire to sell, and Buyer (as defined below) desires to purchase, in the aggregate, all of the issued and outstanding common stock, zero par value per share, of the Company (collectively, the “ Shares ”), for the consideration and on the terms and conditions set forth in this Agreement.

For purposes of this Agreement, the following terms have the meanings specified or referred to in this Article I:

“ Accounts Receivable ” means all of the Company’s trade accounts receivable, notes receivable, employee advances and other miscellaneous receivables.

“ Acquisition Proposal ” has the meaning set forth in Section 6.5(b).

“ Acquisition Subsidiary ” has the meaning set forth in the first paragraph of this Agreement.

“ Affiliate ” shall mean, with respect to any Person, any other Person which directly or indirectly controls, is controlled by, or is under common control with such Person. For the purposes of this definition, “control” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, by agreement or otherwise.

“ Affiliated Group ” means any affiliated group within the meaning of IRC §1504(a) or any similar group defined under a similar provision of state, local or foreign law.

“ Agreement ” has the meaning set forth in the first paragraph of this Agreement.

“ All Appropriate Inquiries ” has the meaning set forth in Section 6.10.

“ Basket ” has the meaning set forth in Section 12.4.

“ Benedict ” means Jeffrey H. Benedict.

“ Benedict Indebtedness ” means the indebtedness owed by Benedict to the Company as of June 7, 2006 and which was incurred in connection with certain services rendered by the Company to Benedict.

“ Benefit Obligation ” has the meaning set forth in Section 3.11(a).

“ Business Day ” means any day other than a Saturday, Sunday or public holiday under the laws of the State of New York.

“ Buyer ” means Parent and Acquisition Subsidiary, jointly and severally, unless this Agreement explicitly provides otherwise.

“ Buyer’s Accountants ” means Buyer’s independent, nationally recognized, certified public accountants.

“ Cap ” has the meaning set forth in Section 12.4.

“ Closing ” has the meaning set forth in Section 2.4.

“ Closing Date ” has the meaning set forth in Section 2.4.

“ Common Stock ” means the common stock of the Company, zero par value per share.

“ Company ” has the meaning set forth in the first paragraph of this Agreement.

“ Company Facility ” has the meaning set forth in Section 3.17(b).

“ Company Intellectual Property Assets ” means the Intellectual Property Assets owned or used by the Company.

“ Consent ” means any approval, consent, ratification, waiver, or other authorization (including any Governmental Authorization), including the satisfaction of any requirement to pay any fees or other amounts under any Contract or instrument, arising in connection with the transactions contemplated hereby.

“ Consent Fees ” means all fees and other amounts payable to contractual counter-parties, Governmental Bodies (except for any transfer taxes) and other third parties in connection with obtaining the Consents, other than the Consents that are or should have been set forth on Exhibit A hereto.

“ Contract ” means any written (or oral) agreement, contract, license, sublicense, lease, sublease or binding commitment or arrangement.

“ CPI ” shall have the meaning set forth in Section 8.16.

“ Current Company Facility ” has the meaning set forth in Section 3.17(c).

“ Damages ” means any and all losses, damages, liabilities, obligations, costs and expenses, including without limitation, reasonable fees and disbursements of counsel, sustained or incurred by the applicable Person.

“ Disclosure Schedules ” means, collectively, those schedules delivered by the Company and the Sellers and attached to this Agreement that set forth the facts and circumstances that qualify the representations and warranties of the Company and the Sellers in Articles III and IV of this Agreement, and “Schedule” means any individual schedule comprising part of the Disclosure Schedules.

“ Encumbrance ” means any mortgage, easement, right of way, charge, claim, equitable interest, lien, 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.

“ Environmental Claim ” has the meaning set forth in Section 3.17.

“ Environmental Laws ” has the meaning set forth in Section 3.17.

“ Environmental Permits ” has the meaning set forth in Section 3.17.

“ Equipment ” means all equipment used by the Company in its operations or otherwise held by the Company, whether owned, leased or licensed, and whether located at any Current Company Facility or not, including, without limitation, all fuel pumps, fuel tanks, trucks, cash registers, computers, telephones, printers and other related equipment.

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

“ ERISA Affiliate ” has the meaning set forth in Section 3.11(a).

“ Escrow Account ” has the meaning set forth in Section 2.5.

“ Escrow Agent ” has the meaning set forth in Section 2.5.

“ Escrow Agreement ” has the meaning set forth in Section 2.5.

“ Escrow Amount ” has the meaning set forth in Section 2.5.

“ FIRPTA Affidavit ” shall have the meaning set forth in Section 8.10.

“ Former Company Facility ” has the meaning set forth in Section 3.17(c).

“ Fundamental Representations ” has the meaning set forth in Section 11.1.

“ GAAP ” means United States generally accepted accounting principles as in effect at the relevant time.

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

“ Governmental Body ” means any:

(a)   nation, state, county, city, town, village, district, or other jurisdiction of any nature;

(b)   federal, state, local, county, municipal, foreign, or other government;

(c)   governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); or

(d)   body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.

“ Hazardous Materials ” has the meaning set forth in Section 3.17.

“ Indebtedness ” means at any particular time, without duplication, (i) any indebtedness for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money, (ii) any indebtedness evidenced by any note, bond, debenture or other debt security, (iii) any indebtedness for the deferred purchase price of property or services with respect to which a Person is liable, contingently or otherwise, as obligor or otherwise (other than trade payables and other current liabilities incurred in the ordinary course of business which are not more than three months past due), (iv) any banker’s acceptances that are not used to purchase Inventory, (v) any indebtedness guaranteed in any manner by a Person (including, without limitation, guarantees in the form of an agreement to repurchase or reimburse), (vi) any obligations under capitalized leases with respect to which a Person is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations a Person assures a creditor against loss, (vii) any indebtedness secured by an Encumbrance on a Person’s assets, and (viii) accrued interest in respect of any of the obligations described in the foregoing clauses (i) through (vii) of this definition and all premiums, penalties, charges, fees, expenses and other amounts which would become due in connection with the payment and satisfaction in full of such obligations on the Closing Date.

“ Insurance Claim ” means that certain claim to insurance proceeds as a result of the destruction of a building located on the land of one of the Company’s stores, to which the Company succeeded as a result of the Company’s acquisition of such store during its fiscal year 2003.

“ Intellectual Property Assets ” means all: (A) patents, patent applications and patent disclosures; (B) trademarks, service marks, trade dress, trade names, logos and slogans (and all translations, adaptations, derivations and combinations of the foregoing) and Internet domain names, together with all goodwill associated with each of the foregoing; (C) copyrightable works and copyrights; (D) registrations and applications related to any of the foregoing; (E) trade secrets, know-how, confidential information and inventions; (F) computer software (including but not limited to source code, executable code, data, databases and documentation); (G) rights of publicity and privacy relating to the use of the names, likenesses, voices, signatures and biographical information of real persons; and (H) other intellectual property.

“ Interim Financial Statements ” has the meaning set forth in Section 3.4.

“ Inventory ” means all inventory owned, used or held for sale by the Company, including, without limitation, fuel, fuel-derivative products and convenience store merchandise, and all raw materials, work in process, finished products, shipments in transit, and related items owned, used or held for use by the Company.

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

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

“ Knowledge ” with respect to the Company, means knowledge of any member of Management, in each case, assuming a reasonable inquiry.

“ Leased Real Property ” has the meaning set forth in Section 3.6(a).

“ Leases ” has the meaning set forth in Section 3.6(a).

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

“ Letter of Intent ” means that certain letter agreement, dated June 7, 2006, by and among Parent, the Company and each of the Sellers, which set forth the general terms pursuant to which the Buyer, the Company and the Sellers would attempt to consummate the transactions contemplated under this Agreement.

“ Management ” means each of Benedict, James R. MacLean, Ronald L. Prewitt and Ernestine Clark, in their respective roles in the management of the Company.

“ Marketing Agreements ” means the marketing agreements by and between the Company (or any of its Subsidiaries) and Exxon, BP, Marathon, Citgo and Sunoco, respectively, as may be supplemented by the Buyer prior to the Closing, subject to the approval of the Sellers, which approval shall not be unreasonably withheld.

“ Material Adverse Effect (or Change) ” means, with respect to a particular Person, any event, fact, circumstances or condition that, individually or in the aggregate with any other such events, facts, circumstances or conditions, has had or would be reasonably expected to have (a) a material adverse effect on the business, results of operations, assets or financial condition of such Person and its subsidiaries (if any), taken as a whole, or (b) a material impairment of such Person’s ability to consummate the transactions contemplated hereby; provided, however, that the term “Material Adverse Effect or (Change)” shall not include any event, fact, circumstances or condition to the extent resulting from an action affirmatively taken by Buyer or its Affiliates after the date hereof and prior to the Closing Date; general economic changes or changes in the general industry of the Company; acts of terrorism or war; or political or civil instability, disturbance or unrest.

“ Material Contracts ” has the meaning set forth in Section 3.15(a).

“ Multi-Employer Plan ” has the meaning set forth in Section 3.11(a).

“ Naelcam Indebtedness ” means the Company’s accounts receivable owed by Naelcam, LLC, which shall be cancelled effective as of the Closing.

“ Noncompete and Non-Solicitation Period ” has the meaning set forth in Section 7.5(a).

“ 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 certificate of organization or formation and limited liability company agreement of a limited liability company, including, without limitation, an operating agreement; (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 3.6(a).

“ Parent ” has the meaning set forth in the first paragraph of this Agreement. 

“ Pension Plan ” has the meaning set forth in Section 3.11(a).

“ Permitted Encumbrances ” has the meaning set forth in Section 3.6(b).

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

“ Phase I ” has the meaning set forth in Section 6.10.

“ Phase I assessment ” has the meaning set forth in Section 6.10.

“ Phase II ” has the meaning set forth in Section 6.10.

“ Phase II assessment ” has the meaning set forth in Section 6.10.

“ Plan ” has the meaning set forth in Section 3.11(a).

“ Potential 280G Benefits ” has the meaning set forth in Section 6.9.

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

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

“ Purchase Rights ” has the meaning set forth in Section 3.3(b).

“ Qualified Plan ” has the meaning set forth in Section 3.11(a).

“ Release ” has the meaning set forth in Section 3.17.

“ Released ” has the meaning set forth in Section 3.17. 

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

“ Sellers ” has the meaning set forth in the first paragraph of this Agreement.

“ Sellers’ Accountants ” means Blackburn, Childers & Steagall, PLC.

“ Sellers’ Representatives ” has the meaning set forth in Section 14.16.

“ Senior Lender ” means each of First Tennessee Bank, Lee Bank and Trust, Amsouth Bank, Powell Valley Bank and Elizabeth N. Graham.

“ Senior Lender Credit Agreements ” shall mean each of the credit agreements or loan agreements by and between (or among) the Company and the Senior Lenders under which the Senior Lender Obligations have arisen.

“ Senior Lender Obligations ” shall mean all indebtedness and obligations owed by the Company to the Senior Lenders arising under or in connection with the Senior Lender Credit Agreements, as secured by the security agreements entered into by the Company in connection therewith; provided that the Senior Lender Obligations shall not include any letters of credit or any banker’s acceptances issued in favor of vendors of the Company’s Inventory to procure such Inventory.

“ Shares ” has the meaning set forth in the Recital of this Agreement.

“ Subsidiary ” means each Person listed on Schedule 3.1(b).

“ Tax ” and “ Taxes ” means (a) all income, gross receipts, franchise, estimated, excise, transfer, severance, value added, ad valorem, fuel, sales, use, wage, payroll, workmen’s compensation, employment, withholding, social security, alternative minimum, add-on minimum, occupation, and real and personal property taxes; taxes measured by or imposed on capital; levies, imposts, duties, (license and legislation fees); other taxes imposed by any Governmental Body, including assessments in the nature of taxes; interest, penalties, fines, assessments and deficiencies relating to any tax or taxes; (b) liability for the payment of any amounts of the type described in clause (a) arising as a result of being (or ceasing to be) a member of any Affiliated Group (or being included (or required to be included) in any Tax Return relating thereto); and (c) liability for the payment of any amounts of the type described in clause (a) as a result of any express or implied obligation to indemnify or otherwise assume or succeed to the liability of any other person.

“ Tax Claim ” means any claim based upon, arising out of or otherwise in respect of, any inaccuracy in or any breach of any representation or warranty of any Seller or the Company contained in this Agreement related to Taxes, including, without limitation, Section 3.10, and any claim for Damages pursuant to Section 13.1. 

“ Tax 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) for Taxes.

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

“ Taxing Authority ” means any Governmental Body (whether federal, state, local, municipal, foreign or otherwise) responsible for the imposition, collection or administration of any Tax.

“ Third Party ” has the meaning set forth in Section 6.5(b).

“ Title IV Plan ” has the meaning set forth in Section 3.11(a).

“ Transfer Taxes ” has the meaning set forth in Section 13.6.

“ Year End Financial Statements ” has the meaning set forth in Section 3.4.

2.1   Shares. Subject to the terms and conditions of this Agreement, at the Closing, Sellers will sell and transfer the Shares to Acquisition Subsidiary, and Parent will purchase the Shares (on Acquisition Subsidiary’s behalf) from Sellers.

2.2   Purchase Price.

(a)   The purchase price for the Shares is $30,000,000 (such amount, the “ Base Purchase Price ”), subject to all amounts and adjustments contemplated by this Agreement (as so adjusted, the “ Purchase Price ”).

(b)   The Purchase Price shall be paid in immediately available funds at the Closing as follows:

(i)   first, to the Escrow Agent in the Escrow Amount, as provided by Section 2.5 hereof; and

(ii)   then, to each Seller as set forth on Schedule 3.3(a) hereto.

2.3   Closing. The purchase and sale (the “ Closing ”) provided for in this Agreement will take place in Charlotte, North Carolina at the offices of the Buyer, at 6000 Fairview Rd., 12th Floor, at 10:00 a.m. (local time) on the later of (the “ Closing Date ”): (a) December 29, 2006 or (b) the date that is five Business Days following the satisfaction of the closing conditions set forth in Articles VIII and IX (other than those conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), or at such other date, time and place as the parties may agree. Subject to the provisions of Article X, failure to consummate the purchase and sale provided for in this Agreement on the date and time and at the place determined pursuant to this Section 2.3 will not result in the termination of this Agreement and will not relieve any party of any obligation under this Agreement.

2.4   Closing Deliveries. At the Closing:

(a)   Sellers or the Company, as appropriate, will deliver or arrange to be delivered to Buyer:

(i)   certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) for transfer to Acquisition Subsidiary;

(ii)   a certificate executed by each of the Sellers certifying as to the satisfaction of the Closing conditions set forth in Sections 8.1 and 8.2 hereof with respect to such Seller;

(iii)    a certificate executed by the Company certifying as to the satisfaction of the Closing conditions set forth in Sections 8.1 and 8.2 hereof with respect to the Company;

(iv)    the Escrow Agreement, duly executed by the Sellers and by the Escrow Agent, and duly executed copies of all other agreements, certifications, and other documents required to be executed and delivered by the Company and Sellers hereunder at the Closing; and

(v)    written resignations of each of the directors and officers of the Company.

(b)   Buyer will deliver to:

(i)   the Sellers, the portion of the Purchase Price payable to such Persons in accordance with Section 2.2(b)(iii) hereof;

(ii)   the Escrow Agent, the Escrow Amount, in accordance with Sections 2.2(b)(ii) and 2.5;

(iii)   the Sellers, a certificate executed by Buyer certifying as to the satisfaction of the Closing conditions set forth in Sections 9.1 and 9.2 hereof; and

(iv)   the Sellers, the Escrow Agreement, duly executed by the Buyer, and duly executed copies of all other agreements, certifications, and other documents required to be executed and delivered by Buyer hereunder at the Closing.

2.5   Escrow. At the Closing, Buyer shall withhold an amount equal to $1,000,000 (the “ Escrow Amount ”), on a pro rata basis among all Sellers in proportion to the aggregate amount of the Purchase Price each Seller would otherwise be entitled to receive, and shall instead deliver the Escrow Amount to an escrow agent jointly selected by, and reasonably acceptable to each of, the Buyer and the Sellers’ Representatives (the “ Escrow Agent ”) for deposit into escrow (the “ Escrow Account ”). The Escrow Amount shall be held pursuant to the provisions of an escrow agreement in form and substance reasonably satisfactory to the Buyer and the Sellers (the “ Escrow Agreement ”) and will be available to compensate Buyer for Damages and Tax Claims as provided in Article XII and Section 13.1 hereof. To the extent that there is any portion, or all, of the Escrow Amount remaining in the Escrow Account which has not been reserved for claims under the Escrow Agreement on the date that is eighteen (18) months after the Closing Date, such portion, or all, of the Escrow Amount will be released.

(a)   The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Tennessee, with full corporate power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use. Schedule 3.1(a) sets forth the current directors and executive officers of Company. The Company is duly qualified and authorized to transact business as a foreign corporation and is in good standing in every jurisdiction where required except as disclosed on Schedule 3.1(a) hereto, such exceptions not giving rise, either individually or in the aggregate, to a Material Adverse Effect.

(b)    Schedule 3.1(b) sets forth, as of the date hereof, Company’s direct or indirect ownership interest in any subsidiary companies or any other Person, its percentage ownership interest therein (and the ownership interest of any other Person therein) and the jurisdiction in which each Subsidiary was organized. Each of the Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation. The Subsidiaries have all necessary corporate power and authority to own or lease their respective properties and assets, as applicable, and to carry on their respective businesses as now conducted and are duly qualified or licensed to do business as foreign corporations or other entities in good standing in all jurisdictions in which the ownership of their property or the conduct of their business requires such qualification. Schedule 3.1(b) sets forth the current directors and executive officers of each Subsidiary.

(c)    The Company has made available to Buyer prior to the execution of this Agreement, true and complete copies of the Organizational Documents of the Company and each Subsidiary, as currently in effect.

3.2   Authority; No Conflict.  

(a)   This Agreement constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Company has all corporate right, power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.

(b)   Except as set forth on Schedule 3.2(b), the execution, delivery and performance of this Agreement will not, directly or indirectly (with or without notice or lapse of time):

(i)   contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of the Company, or (B) any resolution of the Company adopted by its board of directors or stockholders;

(ii)   contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by the Company; or

(c)   Except as set forth on Schedule 3.2(c), the Company is not, and will not be, required to give any notice to or obtain any Consent from any Person in connection with the execution, delivery or performance of this Agreement.

3.3   Capitalization.

(a)    The total authorized capital stock of the Company consists of 500,000 shares of common stock, zero par value per share, of which 60,188 shares are issued and outstanding. The Shares have been duly authorized and are validly issued and are fully paid and nonassessable and, except as set forth on Schedule 3.3(a) hereto, are not subject to preemptive rights or any rights of first refusal or rights of rescission. Except as referenced on Schedule 3.3(a), there are no Contracts for the issuance, sale or transfer of any equity securities or other securities or interests of the Company. The Shares are held of record by the Persons with the addresses of record and in the amounts and pro rata percentages set forth on Schedule 3.3(a).

(b)    Schedule 3.3(b) contains a list of equity incentive plans that are currently in effect. Except for the transactions contemplated by this Agreement and except as otherwise set forth on Schedule 3.3(b), there are no options, warrants, calls, rights, exchangeable or convertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound (collectively, “ Purchase Rights ”) obligating the Company to (i) issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any equity or other security or interest in the Company or (ii) grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, exchangeable or convertible securities, commitment or agreement. All Shares and all issued and outstanding Purchase Rights have been offered, sold and delivered by the Company in material compliance with applicable federal and state securities laws.

3.4   Financial Statements. Attached hereto as Schedule 3.4(a) are: (a) the unaudited balance sheet of the Company as at September 30 in each of the years 2003 through 2005, and the related unaudited statements of income, changes in stockholders’ equity, and cash flow for each of the fiscal years then ended, together with the notes thereto, reviewed by Sellers’ Accountants (the September 30, 2005 balance sheet, the related unaudited statements of income, changes in stockholders’ equity, and cash flow for the fiscal year then ended, together with the notes thereto are referred to herein collectively as the “ Year End Financial Statements ”); and (b) the unaudited balance sheet of the Company as at May 31, 2006 and the related unaudited statement of income, change in stockholders’ equity, and cash flow for the eight months then ended (collectively, the “ Interim Financial Statements ”), reviewed by Sellers’ Accountants based upon an agreed-upon procedure engagement, the tests, procedures, and scope of which shall have been agreed with Buyer in writing prior to commencement thereof. (The unaudited balance sheet of the Company as at September 30, 2006 and related unaudited statements of income, changes in stockholders’ equity, and cash flow, together with the notes thereto, reviewed by Sellers’ Accountants, will be provided by the Company as soon as they are available, but, in any case, no later than December 22, 2006.) Such Year-End Financial Statements and Interim Financial Statements fairly present in all material respects the financial condition and the results of operations, changes in stockholders’ equity, and cash flow of the Company, as applicable, as at the dates of and for the periods referred to in such financial statements, all of which have been prepared in accordance with GAAP (except as set forth on Schedule 3.4(b)), subject, in the case of the Interim Financial Statements, to normal recurring year-end adjustments and the absence of notes. The Year-End Financial Statements referred to in this Section 3.4 reflect the consistent application of GAAP throughout the period involved, except as disclosed in the notes to such financial statements or on Schedule 3.4(b).

3.5   Books and Records. The books of account, minute books, stock record books, and other records of the Company, all of which have been made available to Buyer prior to the execution of this Agreement, are complete and correct in all material respects.

3.6   Title to Assets; Encumbrances. (a) Schedule 3.6(a) contains a complete and accurate list of all (x) land, buildings and real property owned by the Company (the “ Owned Real Property ”) and (y) all leases and other agreements (including all guaranties, assignments, amendments, extensions and renewals of such leases and other agreements) (the “ Leases ”) under which the Company holds any leasehold estates and other similar rights to use or occupy any land, buildings or other similar interest in real property (the “ Leased Real Property ”). The Company has delivered or made available to Parent copies of the deeds and other instruments (as recorded) by which the Company acquired its interest in the Owned Real Property, and copies of all title insurance policies, opinions, abstracts, and surveys in the possession of the Company and relating to such property or interest. Except as set forth on Schedule 3.6(a), the Company has not leased, subleased or granted the right to use or occupy any portion of the Owned Real Property or Leased Real Property to any Person. Except as set forth on Schedule 3.6(a), the Company owns or holds a valid and enforceable (i) title, in the case of Owned Real Property, and (ii) leasehold interest under the Leases, in the case of Leased Real Property, in each case free and clear of all Encumbrances other than (A) liens for real estate Taxes assessed with respect to the Owned Real Property or Leased Real Property for the current fiscal tax year but not yet due and payable; (B) with respect to Leased Real Property, monetary Encumbrances granted by a landlord under any financing to such landlord with regards to which the Company has been granted non-disturbance rights as tenant; and (iii) other defects in title or Encumbrances that do not materially restrict or impair the Company’s use of the Owned Real Property or Leased Real Property in the ordinary course of business.

(b)   Except as set forth on Schedule 3.6(b), the Company has good and marketable title to, or, in the case of leased properties and assets, a valid leasehold interest in, all its material properties and assets (whether real, personal, or mixed and whether tangible or intangible) used by the Company, located on any of the premises of the Company or reflected in the books and records of the Company, including all of the properties and assets reflected in the balance sheet portion of the Year End Financial Statements and the balance sheet portion of the Interim Financial Statements (except for Inventory sold since the date of the Year End Financial Statements and the Interim Financial Statements, as the case may be, to customers in the ordinary course of business). To the Knowledge of the Company, the buildings, plants, structures, and other material assets owned, leased or licensed by the Company are in reasonably good operating condition and repair, in all material respects, ordinary wear and tear excepted, and are reasonably fit for the purposes for which they are used by the Company, except for such conditions as would not have a materially adverse impact upon the use thereof. Except as set forth on Schedule 3.6(b), all material properties and assets reflected in the balance sheet portions of the Year End Financial Statements and the Interim Financial Statements are free and clear of all Encumbrances except:

(i)   the Senior Lender Obligations;

(ii)   mortgages or security interests incurred in connection with the purchase of property or assets and shown on the balance sheet portions of the Year End Financial Statements or the Interim Financial Statements as securing only such property or assets so purchased, with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists;

(iii)   mortgages or security interests incurred in connection with the purchase of property or assets after the date of the Interim Financial Statements (such mortgages and security interests being limited to the property or assets so acquired), with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists;

(iv)   liens for current Taxes not yet due;

(v)   the matters set forth on Schedule 3.6(b); and

(vi)   other defects of title or Encumbrances with respect to the Owned Real Property or Leased Real Property which do not, individually or in the aggregate, materially restrict or impair the Company’s use of its Owned Real Property or Leased Real Property.

The Encumbrances set forth in clauses (ii)-(vi) above are collectively referred to as the “ Permitted Encumbrances .”

(c)   Schedule 3.6(c) contains a complete and accurate list of all Equipment items owned, leased or licensed by the Company, grouped by category of Equipment and the nature of the Company’s interest (owned, leased or licensed) with respect thereto. To the Knowledge of the Company, each Equipment item is in reasonably good operating condition and repair, in all material respects, ordinary wear, tear, breakage and malfunctions excepted, and is reasonably fit for the purpose for which it is used by the Company in its ordinary course of business, except for such conditions as would not have a materially adverse impact upon the use thereof.

3.7   Intellectual Property Matters. Schedule 3.7(a) attached hereto sets forth a complete and correct list of all of the following that are owned by the Company: patents; patent applications; trademark applications; trademark registrations; Internet domain names; service mark applications; service mark registrations; copyright registrations and material unregistered trademarks, service marks and copyrights. Schedule 3.7(b) sets forth all agreements relating to the licensing of Intellectual Property Assets by the Company to a third party or by a third party to the Company, and all other agreements affecting the Company’s ability to use or disclose any Intellectual Property Assets, except for licenses for commercially available off-the-shelf computer software programs, applications or products purchased or licensed for less than a total cost of $25,000.

Except as set forth on Schedule 3.7(c) and except to the extent that the inaccuracy of any of the following, individually or in the aggregate, would not have a Material Adverse Effect on the Company:

(a)    the Company Intellectual Property Assets owned by the Company are not subject to any pending, or, to the Knowledge of the Company, threatened claim, judgment or dispute of any nature; 

(b)    the Company has not: (i) consented to or otherwise acquiesced in the use by another Person of the Company’s name or a name that is substantially similar to the Company’s name; or (ii) received any notice or claims from any third party alleging that the operation of the Company’s business infringes or misappropriates the Intellectual Property Assets of such third party;

(c)    to the Company’s Knowledge, no third party has infringed, misappropriated or otherwise conflicted with, any of the Company Intellectual Property Assets and the Company does not have Knowledge of any facts that indicate a likelihood of any of the foregoing;

(d)    the Company Intellectual Property Assets are subsisting and in full force and effect and, to the Knowledge of the Company, are valid and enforceable; and

(e)    the Company owns and possesses the entire right, title and interest in and to all material Intellectual Property Assets created or developed by, for or under the direction or supervision of the Company, including any of the foregoing created or developed by any employee, consultant or contractor, and all Persons who have participated in the creation or development of any such material Intellectual Property Assets, including, without limitation, the Intellectual Property Assets set forth on Schedule 3.7(a), have executed and delivered to the Company a valid and enforceable agreement (i) providing for the non-disclosure by such Person of any confidential information of the Company and (ii) providing for the assignment by such Person to the Company of any material Intellectual Property Assets arising out of such Person’s employment by, engagement by or contract with the Company.

3.8   Absence of Material Adverse Change . To the Knowledge of the Company, and except as set forth on Schedule 3.8, since the date of the Interim Financial Statements and, to the extent not fully reflected in the Interim Financial Statements, since the date of the Year End Financial Statements, there has not been any Material Adverse Change with respect to the Company.

3.9   No Undisclosed Liabilities. To the Knowledge of the Company, and except as set forth on Schedule 3.9, the Company has no material liabilities or obligations of any nature (whether absolute, accrued, contingent, known or otherwise), except for the Senior Lender Obligations, liabilities or obligations reflected in or reserved against in the balance sheet portion of the Interim Financial Statements, current liabilities incurred in the ordinary course of business since the date of the Interim Financial Statements (none of which is a liability resulting from non-compliance with any applicable law, the breach of any Contract, the commission of any tort or act of infringement, or any other Proceeding) and liabilities that do not or would not reasonably be expected to have a Material Adverse Effect.

(a)   The Company has filed or caused to be filed all Tax Returns required to have been filed by it pursuant to applicable Legal Requirements. All such Tax Returns are true, correct and complete in all material respects. Except as set forth in the Disclosure Schedules, the Company has paid all Taxes shown on all Tax Returns it has filed, except such Taxes, if any, as are listed on Schedule 3.10(a) and are being contested in good faith and as to which adequate reserves (determined in accordance with GAAP) have been provided on the face of the balance sheet portion of the Year End Financial Statements and the balance sheet portion of the Interim Financial Statements. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return.

(b)   Except as set forth on Schedule 3.10(b) there is no dispute or claim concerning any Tax Liability of the Company either (A) claimed or raised by any Taxing Authority in writing that has been received by the Company or (B) as to which any of the Sellers or the Company has Knowledge based upon personal contact with any agent of such Taxing Authority. Schedule 3.10 lists all federal, state, local, and foreign income Tax Returns filed with respect to the Company for taxable periods commencing January 1, 2001 and ended on or before December 31, 2005, indicates those Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject of audit. Except as set forth on Schedule 3.10(b), (x) no claim has been made by an authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction and (y) there are no Liens for Taxes (other than Taxes not yet due and payable) upon any of the assets of the Company. The Sellers and the Company have delivered or made available to the Buyer correct and complete copies of all such federal income Tax Returns, examination reports with respect to such income Tax Returns, and statements of income Taxes assessed against or agreed to by the Company since January 1, 2001 which were not shown on the face of such income Tax Return. Except as described on Schedule 3.10(b), the Company has withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, as shown on all Forms W-2 and 1099 filed by the Company, and all such Forms W-2 and 1099 have been properly filed.

(c)   Except as described on Schedule 3.10(c), the Company has not executed any agreement waiving any statute of limitations in respect of assessment or collection of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency that has continuing effect, or granted any power of attorney in respect to the Company with respect to any matter related to Taxes which is currently in force. Except as described on Schedule 3.10(c), there are no agreements currently in effect between the Company and any Taxing Authority with respect to the payment in installments of any Tax Liability after the Closing Date.

(d)   Subject to the provisions of Section 6.9 hereof, the Company has not made any payments and is not obligated to make any payments in connection with the transactions contemplated by this Agreement that would be excess parachute payments within the meaning of IRC § 280G. The Company has not been a United States real property holding corporation within the meaning of IRC §897(c)(2) during the applicable period specified in IRC §897(c)(1)(A)(ii). The Company (A) has never been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) and (B) does not have any Tax Liability for the Taxes of any Person (other than the Company) under Treasury Regulation §1.1502-6, as a transferee or successor, by contract, or otherwise.

(e)   The unpaid Taxes of the Company did not, as of July 31, 2006, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the balance sheet portion of the Interim Financial Statements (rather than in any notes thereto). The reserve for unpaid federal income taxes maintained by the Company is in accordance with the past custom and practice of the Company.

(f)   The Company will not be required to include any item of income in, nor will the Company exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any change in method of accounting for a taxable period ending on or prior to the Closing Date under IRC §481(c) (or any corresponding or similar provision of state, local or foreign income Tax law). The Company is not a party to any “closing agreement” as described in IRC §7121 (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date that would have continuing effect after the Closing Date. Except as set forth on Schedule 3.10(f), the Company is not a party to or bound by any Tax allocation, sharing, or similar agreement, and the Company has no (A) gain from any intercompany transaction which has been deferred pursuant to Treasury Regulations Section 1.1502-13 or any excess loss account described in Treasury Regulations Section 1.1502-13 (or any corresponding or similar provision of state, local or foreign income Tax law) arising in any taxable period or portion thereof ending before the Closing Date; (B) installment sale or open transaction disposition made on or prior to the Closing Date, income from which would be required to be reported by the Company after the Closing Date; or (C) prepaid income amount received on or prior to the Closing Date not required to have been reported in computing taxable income for periods ending on or before the Closing Date.

(g)   The Company has never made an election under Section 1362(a) of the IRC to be treated as an S corporation within the meaning of Section 1361 of the IRC, nor has it been treated in a similar manner for purposes of the income tax laws of any state in which it has been subject to taxation where analogous treatment is legally available. During the last seven years, the Company has not distributed stock of another Person, nor has had its stock distributed by another Person, in a transaction that was purported or intended to be governed by whole or in part by § 355 or § 361 of the IRC.

3.11   Employee Benefits.  

(a)   As used in this Section 3.11, the following terms have the meanings set forth below.

“ Benefit Obligations ” means all obligations, arrangements, or customary practices to provide benefits as compensation for services rendered, to present or former directors, employees, or agents, other than obligations, arrangements, and practices that are Plans.

“ ERISA Affiliate ” means, with respect to the Company, any other person that, together with the Company, would be treated as a single employer under IRC § 414.

“ Multi-Employer Plan ” has the meaning given in ERISA § 3(37)(A).

“ Pension Plan ” has the meaning given in ERISA § 3(2)(A).

“ Plan ” has the meaning given in ERISA § 3(3).

“ Qualified Plan ” means any Pension Plan that meets or purports to meet the requirements of IRC § 401(a).

“ Title IV Plans ” means all Pension Plans that are subject to Title IV of ERISA, 29 U.S.C. § 1301 et seq. , other than Multi-Employer Plans.

(b)   Schedule 3.11 contains a complete and accurate list of all Plans and material Benefit Obligations sponsored, maintained or contributed to by the Company on behalf of or for the benefit of its current or former employees, directors or independent contractors. The Company has delivered or made available to Buyer a true and correct copy of the governing plan document for each Plan (including all amendments thereto), its summary plan description and its most recent Form 5500 with all schedules and attachments (if applicable), and any trust agreement, insurance contract or other document under which Plan assets are held and invested or benefits provided. The Company has further delivered or made available to Buyer the material Benefit Obligations, and a copy of any document furnished to employees which summarizes or describes each material Benefit Obligation. Except as set forth on Schedule 3.11, each Plan and each Benefit Obligation complies in form and operation in all material respects with its terms and the applicable requirements of ERISA, the IRC and other applicable Legal Requirements. Except as set forth on Schedule 3.11, neither the Company nor any ERISA Affiliate has at any time during the six years preceding this Agreement and through the date hereof sponsored, maintained, contributed to or been obligated to contribute to any Qualified Plan, including without limitation any Title IV Plan or Multi-Employer Plan, and no facts or circumstances exist or are expected that could result in material liability or potential material liability to the Company or any ERISA Affiliate pursuant to Title IV or Section 302 of ERISA or IRC § 412. Neither the Company or, to the Knowledge of the Company, any fiduciary with respect to any Plan has engaged in any nonexempt prohibited transaction under ERISA § 406, or incurred any liability for breach of fiduciary duty or any other failure to comply with any Legal Requirement in connection with the administration or investment of assets of any Plan. Except as set forth on Schedule 3.11, no action, suit, Proceeding, hearing, audit or investigation with respect to the administration or investment of assets of any Plan or Benefit Obligation (other than routine claims for benefits) is pending or, to the Knowledge of the Company, threatened. Except as otherwise disclosed on Schedule 3.11, the Company does not provide health or other welfare benefits for any retired or former employee and is not obligated to provide health or welfare benefits to any active employee following such employee’s retirement or other termination of service (other than “COBRA” continuation coverage required under ERISA §§ 601 et seq . and IRC § 4980B). All contributions (including employer and employee contributions) or premium payments with respect to each Plan or Benefit Obligation for all periods ending on or prior to the Closing Date have been made or, to the extent not required to be made, have been made or properly accrued. Except as otherwise disclosed on Schedule 3.11, neither the execution of this Agreement, shareholder approval of this Agreement nor the consummation of the transactions contemplated hereby will accelerate the time of payment or vesting, result in any payment or funding of any benefits, or increase the amount payable or benefits provided under any Plan or Benefit Obligation. The Company has not granted to any Person an interest in a nonqualified deferred compensation plan or arrangement that is, or is reasonably likely to be, subject to the tax imposed by IRC § 409A(a)(1)(B) or (b)(4). All persons classified by the Company as independent contractors satisfy and have at all times satisfied the requirements of applicable law to be so classified; the Company has fully and accurately reported their compensation on IRS Forms 1099 when required to do so; and the Company has no obligations to provide benefits with respect to such persons under any Plan or Benefit Obligation. No individuals are currently providing, or have ever provided, services to the Company pursuant to a leasing agreement or similar type of arrangement, nor has the Company entered into any arrangement whereby services will be provided by such individuals.

3.12   Compliance with Legal Requirements; Governmental Authorizations.  

(a)   Except as set forth on Schedule 3.12 or Schedule 3.17 or except where any failure to comply or any violation would not have a Material Adverse Effect on the Company:

(i)   the Company is in material compliance with each Legal Requirement that is or was applicable to it or to the conduct or operation of its business or the ownership or use of any of its assets;

(ii)   no event has occurred or circumstance exists that (with or without notice or lapse of time) may constitute or result in a material violation by the Company of, or a material failure on the part of the Company to comply with, any Legal Requirement; and

(iii)   to the Company’s Knowledge, it has not received any written notice or communication from any Governmental Body regarding: (A) any actual or alleged violation of, or failure to comply with, any Legal Requirement, or (B) any actual or alleged obligation on the part of the Company to undertake, or to bear all or any portion of the cost of, any remedial action of any nature.

(b)   To the Knowledge of the Company, Schedule 3.12 and Schedule 3.17, taken together, contain a list that is complete and accurate in all material respects of each Governmental Authorization that is held by the Company or that otherwise relates to the business of, or to any of the assets owned or used by, the Company. To the Knowledge of the Company, the Company holds all Governmental Authorizations necessary to conduct the Company’s business as presently conducted without any material violation of any Legal Requirement. To the Knowledge of the Company, each Governmental Authorization listed on Schedule 3.12 or Schedule 3.17 is valid and in full force and effect. To the Knowledge of the Company, and except as set forth on Schedule 3.12 or Schedule 3.17, or except where any failure to comply, violation or other event or circumstances would not have a Material Adverse Effect on the Company:

(i)   the Company is in compliance with all of the terms and requirements of each Governmental Authorization identified or required to be identified on Schedule 3.12 or 3.17;

(ii)   no event has occurred or circumstance exists that may (with or without notice or lapse of time): (A) constitute or result directly or indirectly in a violation of or a failure to comply with any term or requirement of any Governmental Authorization listed on Schedule 3.12 or 3.17, or (B) result directly or indirectly in the revocation, withdrawal, suspension, cancellation, modification, or termination of, any material Governmental Authorization listed on Schedule 3.12 or 3.17;

(iii)   the Company has not received any written notice or communication from any Governmental Body regarding: (A) any actual, alleged or potential violation of or failure to comply with any term or requirement of any Governmental Authorization, or (B) any actual or threatened revocation, withdrawal, suspension, cancellation, modification or termination of any material Governmental Authorization; and

(iv)   all applications required to have been filed for the renewal of any material Governmental Authorizations listed or required to be listed on Schedule 3.12 or 3.17 have been duly filed on a timely basis with the appropriate Governmental Bodies, and all other filings required to have been made with respect to such Governmental Authorizations have been duly made on a timely basis with the appropriate Governmental Bodies.

3.13   Legal Proceedings. Except as set forth on Schedule 3.13, there is no pending Proceeding:

(a)   that has been commenced by or against the Company or any of the material assets owned or used by the Company; or

(b)   that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement.

Except as set forth on Schedule 3.13, to the Knowledge of the Company, no such Proceeding has been threatened. Except as set forth on Schedule 3.13, there is no judgment, decree, injunction, rule or order of any Governmental Body or arbitrator outstanding against the Company.

3.14   Absence of Certain Changes and Events. Except as set forth on Schedule 3.14, since the date of the Interim Financial Statements, and, to the extent not fully reflected in the Interim Financial Statements, since the date of the Year End Financial Statements, the Company has conducted its business only in the ordinary course of business consistent with past practices, and there has not been any:

(a)   change in the Company’s authorized or issued capital stock or the ownership thereof; grant of any stock option or right to purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock;

(b)   amendment to the Organizational Documents of the Company;

(c)   acquisition of any stock or business of, or merger or consolidation with, another Person, or any action with respect to liquidating, dissolving, recapitalizing, reorganizing or otherwise winding up the Company’s business;

(d)   payment or increase by the Company of any bonuses, salaries, or other compensation to any stockholder, director, officer, or employee (except, with respect to non-executive employees, in the ordinary course of business consistent with past practice) or entry into any new, or material amendment of any existing, employment, consulting, independent contractor, severance, change of control or similar Contract;

(e)   adoption of any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan;

(f)   damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, which has had, or would reasonably be expected to have, a Material Adverse Effect on the Company;

(g)   sale (other than sales of Inventory in the ordinary course of business), lease, license, distribution or other disposition of any material asset(s) or property of the Company, or any waiver, release, transfer or assignment of any right of material value, or any mortgage, pledge, or imposition of any lien or other Encumbrance on any material asset(s) or property of the Company except as noted on Schedule 3.6 or except as explicitly permitted under Section 6.2 or required under any other provision of this Agreement;

(h)   entry into any Contract or other agreement providing for payments by the Company in an aggregate amount exceeding $25,000 that is not terminable by the Company, without penalty, upon sixty (60) days notice, with the exception of agreements for the purchase of fuel entered into by the Company in the ordinary course of its business and consistent with past practice;

(i)   any capital expenditure in excess of $25,000;

(j)   change in any annual accounting period or accounting methods used by the Company;

(k)   any modification, termination or amendment to a Material Contract or waiver of any right or claim thereunder;

(l)   loss of use of any Company Intellectual Property Assets;

(m)   change in methods, practices, principles or timing regarding the purchase of inventory or the payment or accrual of operating expenses, including accounts payable; or

(n)   entry into any Contract, whether oral or written, by the Company to do any of the foregoing.

3.15   Material Contracts; No Defaults. To the Knowledge of the Company, after having made inquiry of all Company employees authorized to enter into Material Contracts on behalf of the Company:

(a)   Schedule 3.15(a) contains a complete and accurate list, and the Company has delivered or made available to Buyer prior to the execution of this Agreement true and complete copies, of the following Contracts (together with the Leases listed on Schedule 3.6 and the Contracts listed on Schedule 3.7(b), the “ Material Contracts ”):

(i)   each Contract that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of $250,000 either (A) during fiscal 2005 or (B) reasonably expected for fiscal 2006 or any fiscal year thereafter, except for purchase orders for fuel, fuel components or finished goods in the ordinary course of business, consistent with past practices;

(ii)   each Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $250,000 either (A) during fiscal 2005 or (B) reasonably expected for fiscal 2006 or any fiscal year thereafter, except for (y) Contracts for the purchase of fuel, fuel components or other finished goods in the ordinary course of business, consistent with past practices and (z) Contracts that are terminable by the Company without penalty or notice;

(iii)   each Contract entered into by the Company outside the ordinary course of business involving, or reasonably expected to involve, expenditures or receipts of the Company in excess of $25,000;

(iv)   each Lease, rental or occupancy agreement, license, installment or conditional sale agreement, or other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and/or conditional sales agreements involving aggregate payments of less than $25,000);

(v)   each joint venture, partnership, and other similar Contract (however named) involving (or reasonably expected to involve) a sharing of profits, losses, costs, or liabilities by the Company with any other Person;

(vi)   each Contract containing covenants that restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business or to compete with any Person;

(vii)   each Contract for capital expenditures in excess of $25,000;

(viii)   each indentu