3.1.(a)        Organization. Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana.

    3.1.(b)        Corporate Power. Company has all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as and where such is now being conducted.

    3.1.(c)        Qualification. Company is duly qualified to do business as a foreign corporation, and is in good standing, in each jurisdiction wherein the character of the properties owned or leased by it, or the nature of its business, makes such qualification necessary. The states in which Company is qualified to do business are listed in Schedule 3.1.(c).

    3.1.(d)        Subsidiaries.

    3.1.(e)       Corporate Documents, etc. The copies of the Articles of Incorporation and By-Laws of the Company, including any amendments thereto, which have been delivered by Shareholder or made available to Buyer are true, correct and complete copies of such instruments. The corporate minute book and stock records of the Company which have been made available for inspection are true, correct and complete in all material respects. The directors and officers of the Company are listed in Schedule 3.1.(e).

    3.1.(f)       Capitalization of the Company. The authorized capital stock of the Company consists entirely of one thousand (1,000) shares of common stock, no par value. No shares of such capital stock are issued and outstanding except for two hundred (200) shares of common stock of the Company: (a) one hundred fifty (150) shares are owned of record and beneficially by Shareholder; (b) fifty (50) shares are owned of record by the other shareholders of the Company in the respective numbers set forth in Schedule 3.1.(f); and (c) twenty-five (25) shares of common stock are held in the treasury of the Company. All such shares of capital stock of the Company are validly issued, fully paid and nonassessable. Except as set forth in Schedule 3.1.(f), there are no (a) securities convertible into or exchangeable for any of the Company’s capital stock or other securities, (b) options, warrants or other rights to purchase or subscribe to capital stock or other securities of the Company or securities which are convertible into or exchangeable for capital stock or other securities of the Company, or (c) to the knowledge of any of the individuals listed in Schedule 3.1(f) (“Shareholder’s Knowledge”), contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance, sale or transfer of any capital stock or other equity securities of the Company, any such convertible or exchangeable securities or any such options, warrants or other rights.

    3.2.(a)       Power. Shareholder has the limited liability company power and authority to enter into, execute and deliver this Agreement and the other agreements, instruments and documents to be delivered at the Closing (such other documents sometimes referred to herein as “Ancillary Instruments”), and to carry out the transactions contemplated hereby.

    3.2.(b)       Authorization. The execution and delivery of this Agreement and the Ancillary Instruments, and performance thereunder, have been duly authorized by Shareholder, and no other or further limited liability act on the part of Shareholder is necessary therefor.

    3.2.(c)       Validity. This Agreement has been duly and validly executed and delivered by Shareholder and is, and when executed and delivered each Ancillary Instrument will be, the legal, valid and binding obligation of Shareholder, enforceable in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally, and by general equitable principles.

    3.2.(d)       Title. Shareholder has, and at Closing Buyer will receive, title to the Shares to be sold hereunder, free and clear of all pledges, claims, charges, mortgages, or security interests or other liens, including, without limitation, voting trusts or agreements, proxies, or any other agreement.

    3.5.(a)       Provision For Taxes. Except for matters disclosed in Schedule 3.5.(a), the payables set forth for sales, property, federal income, and state income Taxes totaling $754,484.85 (such amount does not include any reserves and/or liabilities for deferred Taxes established to reflect timing differences between book and Tax income) on the Recent Balance Sheet in the aggregate is sufficient for the payment of all unpaid Taxes of the Company for (i) all Tax years and periods beginning before and ending on or before the date of the Recent Balance Sheet and (ii) with respect to all Tax periods beginning before and ending after the date of the Recent Balance Sheet, the portion of any such Tax period prior to and including the date of the Recent Balance Sheet. For purposes of determining the amount of Taxes of the Company for the period described in (ii) of the immediately preceding sentence, such amount shall (i) in the case of any Taxes based upon or related to income or receipts, be deemed equal to the amount that would be payable if the relevant Tax period ended on the date of the Recent Balance Sheet, using the “closing of the books” method of accounting, and (ii) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Taxes for the entire Tax period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on and including the date of the Recent Balance Sheet, and the denominator of which is the number of days in the entire Tax period. Since the date of the Recent Balance Sheet, the Company has not incurred any Taxes other than Taxes incurred in the ordinary course of business consistent in type and amount with past practices of the Company. As used herein, “Tax” or “Taxes” means any federal, state, county, local, territorial, provincial, or foreign income, net income, gross receipts, single business, unincorporated business, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code § 59A), customs duties, capital stock, franchise, profits, gains, withholding, FICA, social security (or similar), payroll, unemployment, disability, workers compensation, real property, personal property, ad valorem, replacement, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition.

    3.5.(b)       Tax Returns Filed. All material Tax Returns required to be filed by or on behalf of Company have been timely filed. Except as disclosed in Schedule 3.5.(a), all Taxes owed by the Company for the period up to and including the date of the Recent Balance Sheet have been timely paid or adequately reserved on the Recent Balance Sheet. The Company is currently not the beneficiary of any extension of time within which to file any Tax Return. As used herein, “Tax Return” means any return, declaration, report, estimate, claim for refund, or information return or statement relating to, or required to be filed in connection with, any Tax, including any schedule, form, attachment or amendment.

    3.5.(c)       Withholding. To Shareholder’s Knowledge, Company has duly withheld and paid all Taxes which it is required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party of Company.

    3.5.(d)       Tax Audits. To Shareholder’s Knowledge, (i) No claim has ever been made by any Tax authority in a jurisdiction in which Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction or authority, (ii) except for the audit of Company’s Louisiana franchise Tax Returns for the Tax years 2000, 2001, and 2002, none of the Tax Returns of Company have been audited by the Internal Revenue Service or other applicable Tax authorities, (iii) there are no powers of attorney granted by the Company with respect to any Tax matter currently in force, (iv) Company has not received from the Internal Revenue Service or from any other applicable Tax authority any notice or claim of underpayment or assessment of Taxes or other deficiency which has not been paid nor any written objection to any Tax Return filed by Company, (v) Company has delivered or made available to Buyer true, correct, and complete copies of all Tax Returns, examination and audit reports, IRS Forms 3115, proposed and final assessments and statements of deficiencies assessed against or agreed to by Company since January 1, 1999, and (vi) there are no outstanding agreements or waivers extending the statutory period of limitations applicable to any Tax Return.

    3.5.(e)       Consolidated Group. Company has never been a member of an affiliated group of corporations that filed a consolidated Tax Return.

    3.5.(f)       No Tax Liens. To Shareholder’s Knowledge, Company is not subject to any liens for Taxes, other than for Taxes not yet due and payable.

    3.5.(g)       Tax Positions. To Shareholder’s Knowledge, (i) Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Internal Revenue Code of 1986, as amended (the “Code”), (ii) Company has not received a Tax opinion with respect to any transaction relating to Company other than a transaction in the ordinary course of business, (iii) Company is not the direct or indirect beneficiary of a guarantee of Tax benefits or any other arrangement that has the same economic effect with respect to any transaction or Tax opinion relating to Company, (iv) Company is not a party to an understanding or arrangement described in Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code, and (v) Company is not a party to a lease arrangement involving a defeasance of rent, interest or principal.

    3.5.(h)       Consents and Rulings. To Shareholder’s Knowledge, Company has not (i) filed any consent or agreement under Section 341(f) of the Code, (ii) applied for any Tax ruling, (iii) entered into a closing agreement as described in Section 7121 of the Code or otherwise (or any corresponding or similar provision of state, local, or foreign Tax law) or any other agreement with any Tax authority, (iv) filed an election under Section 338(g) or Section 338(h)(10) of the Code (nor has a deemed election under Section 338(e) of the Code occurred), (v) made any payments, or been a party to an agreement (including this Agreement) that under any circumstances could obligate it to make payments (either before or after the Closing Date) that will not be deductible because of Section 162(m) or Section 280G of the Code, or (vi) filed or made any election for federal income Tax purposes under Sections 108, 1017, or 1033 of the Code.

    3.5.(i)       Accounting Methods. To Shareholder’s Knowledge, Company has not agreed, nor is it required to make, any adjustment under Section 263A, Section 481, or Section 482 of the Code (or any corresponding or similar provision of state, local or foreign law) by reason of a change in accounting method or otherwise.

    3.5.(j)       Code Section 355 Transactions. To Shareholder’s Knowledge, Company has not been the “distributing corporation” or a “controlled corporation” (within the meaning of Section 355 of the Code) with respect to a transaction described in Section 355 of the Code.

    3.5.(k)       Foreign Tax Matters. Company does not have a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the United States of America and such foreign country. Company has not participated in an international boycott as defined in Section 999 of the Code.

    3.5.(l)       Tax Agreements and Arrangements. Company is not currently a party to any Tax allocation, Tax sharing, or Tax indemnification agreement with Shareholder or any parent corporation or entity or subsidiary corporation or entity thereof. To Shareholder’s Knowledge, (i) Company is not currently a party to any other Tax sharing, Tax allocation, or Tax indemnity agreement, (ii) Company is in compliance with the terms, conditions and requirements of any Tax exemptions specifically granted to Company by any Tax authority, and the transactions contemplated by this Agreement will not have any adverse effect on such compliance. To Shareholder’s Knowledge, no property of Company (i) is subject to a tax benefit transfer lease subject to the provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, (ii) is “tax-exempt use property” within the meaning of Section 168(h) of the Code, or (iii) secures any debt the interest on which is exempt from Tax under Section 103 of the Code.

    3.6.(a)       No Material Adverse Change. Any change in the financial condition, assets, liabilities, business or operations of Company that has had, or could reasonably be expected to have, a Material Adverse Effect;

    3.6.(b)       No Damage. Any material loss, damage or destruction to physical assets exceeding $10,000, whether covered by insurance or not, affecting Company’s business or properties;

    3.6.(c)       No Increase in Compensation. Any material increase in the compensation, salaries or wages payable or to become payable to any employee or agent of Company (including, without limitation, any increase or change pursuant to any bonus, pension, profit sharing, retirement or other plan or commitment), or any bonus or other employee benefit granted, made or accrued, other than increases to employees who are not shareholders of the Company in the ordinary course of business, reasonably consistent with past practices;

    3.6.(d)       No Labor Disputes. Any labor dispute or disturbance, other than routine individual grievances which are not material to the business, financial condition or results of operations of Company.

    3.6.(e)       No Commitments. Any commitment or transaction by Company (including, without limitation, any borrowing or capital expenditure) the liability under which exceeds $25,000 other than in the ordinary course of business consistent with past practice;

    3.6.(f)       No Dividends. Any declaration, setting aside, or payment of any dividend or any other distribution in respect of Company’s capital stock; any redemption, purchase or other acquisition by Company of any capital stock of Company, or any security relating thereto; or any other payment to any shareholder of Company as such a shareholder;

    3.6.(g)       No Disposition of Property. Any sale, lease or other transfer or disposition of any properties or assets of Company with a value of more than $25,000 in the aggregate, except for the sale of inventory items in the ordinary course of business;

    3.6.(h)       No Indebtedness. Any indebtedness for borrowed money incurred, assumed or guaranteed by Company that, individually or in the aggregate, exceeds $25,000;

    3.6.(i)       No Liens. Except for liens for taxes not yet delinquent or liens for delinquent Taxes that Company is contesting in good faith, any mortgage, pledge, lien or encumbrance made on any of the properties or assets of Company;

    3.6.(j)       No Amendment of Contracts. Any entering into, amendment or termination by Company of any material contract, or any waiver of material rights thereunder, other than in the ordinary course of business; and

    3.6.(k)       Loans and Advances. Any loan or advance (other than advances to employees in the ordinary course of business for travel and entertainment in accordance with past practice) to any person including, but not limited to, any Affiliate (for purposes of this Agreement, the term “Affiliate” shall mean and include all shareholders, directors and officers of Company; the spouse of any such person; any person who would be the heir or descendant of any such person if he or she were not living; and any entity in which any of the foregoing has a direct or indirect interest, except through ownership of less than 5% of the outstanding shares of any entity whose securities are listed on a national securities exchange or traded in the national over-the-counter market).

    3.9.(d)       No Condemnation or Expropriation. To Shareholder’s Knowledge, neither the whole nor any portion of the property or any other assets of Company is subject to any Order to be sold or is being condemned, expropriated or otherwise taken by any Government Entity with or without payment of compensation therefor, nor to Shareholder’s knowledge has any such condemnation, expropriation or taking been proposed.

    3.11.(a)       Real Property Leases. Company has no leases of real property.

    3.11.(b)       Contracts With Affiliates and Certain Others. Company has no written agreement, understanding, contract or commitment with any Affiliate, employee, agent, consultant, distributor, dealer or franchisee that is not cancelable by Company on notice of not longer than 30 days without liability, penalty or premium of any nature or kind whatsoever.

    3.11.(c)       Powers of Attorney. Company has not given a power of attorney, which is currently in effect, to any person, firm or corporation for any purpose whatsoever.

    3.11.(d)       Collective Bargaining Agreements. Company is not a party to any collective bargaining agreements with any unions, guilds, shop committees or other collective bargaining groups.

    3.11.(e)       Loan Agreements. Company is not obligated under any loan agreement, promissory note, letter of credit, or other evidence of indebtedness for borrowed money as a signatory, guarantor or otherwise.

    3.11.(f)       Guarantees. Company has not guaranteed the payment or performance of any person, firm or corporation, agreed to indemnify any person or act as a surety, or otherwise agreed to be contingently or secondarily liable for the obligations of any person in excess of $10,000.

    3.11.(g)       Other Material Contracts. Company has no lease, contract or commitment of any nature involving consideration or other expenditure in excess of $25,000, or involving performance over a period of more than twelve (12) months, or which is otherwise individually material to the operations of Company.

    3.13.(a)        Disclosure. To Shareholder’s Knowledge, Schedule 3.13.(a) sets forth all material pension, thrift, savings, profit sharing, retirement, incentive bonus or other bonus, medical, dental, life, accident insurance, benefit, employee welfare, disability, group insurance, stock purchase, stock option, stock appreciation, stock bonus, executive or deferred compensation, hospitalization and other similar material fringe or employee benefit plans, programs and arrangements, and any employment or consulting contracts, “golden parachutes,” collective bargaining agreements, severance agreements or plans, vacation and sick leave plans, programs, arrangements and policies, including, without limitation, all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all employee manuals which are provided to, for the benefit of, or relate to, any persons (“Company Employees”) employed by Company. The items described in the foregoing sentence are hereinafter sometimes referred to collectively as “Employee Plans/Agreements,” and each individually as an “Employee Plan/Agreement.” To Shareholder’s Knowledge, true and correct copies of all the Employee Plans/Agreements, including all amendments thereto, have heretofore been provided or made available to Buyer.

    3.13.(b)        Terminations, Proceedings, Penalties, etc. With respect to each Employee Plan/Agreement that is subject to the provisions of Title IV of ERISA and with respect to which the Company or any of its assets may, directly or indirectly, be subject to any Liability, contingent or otherwise, or the imposition of any Lien (whether by reason of the complete or partial termination of any such plan, the funded status of any such plan, any “complete withdrawal” (as defined in Section 4203 of ERISA) or “partial withdrawal” (as defined in Section 4205 of ERISA) by any person from any such plan, or otherwise), to Shareholder’s Knowledge:

    (i)               no such plan has been terminated so as to subject, directly or indirectly, any assets of Company to any liability, contingent or otherwise, or the imposition of any lien under Title IV of ERISA;

    (ii)        no proceeding has been initiated or threatened by any person (including the Pension Benefit Guaranty Corporation (“PBGC”)) to terminate any such plan;

    (iii)        no condition or event currently exists or currently is expected to occur that could subject, directly or indirectly, any assets of Company to any liability, contingent or otherwise, or the imposition of any lien under Title IV of ERISA, whether to the PBGC or to any other person or otherwise on account of the termination of any such plan;

    (iv)        if any such plan were to be terminated as of the Closing Date, no assets of Company would be subject, directly or indirectly, to any liability, contingent or otherwise, or the imposition of any lien under Title IV of ERISA;

    (v)        no “reportable event” (as defined in Section 4043 of ERISA) has occurred with respect to any such plan;

    (vi)        no such plan which is subject to Section 302 of ERISA or Section 412 of the Code has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code, respectively), whether or not waived; and

    (vii)        no such plan is a multiemployer plan (as defined in Section 4001 of ERISA) or a plan described in Section 4064 of ERISA.

    3.13.(c)        Prohibited Transactions, etc. To Shareholder’s Knowledge, there have been no “prohibited transactions” within the meaning of Section 406 or 407 of ERISA or Section 4975 of the Code for which a statutory or administrative exemption does not exist with respect to any Employee Plan/Agreement, and no event or omission has occurred in connection with which the Company or any of its assets or any Employee Plan/Agreement, directly or indirectly, could be subject to any liability under ERISA, the Code or any other Law or Order applicable to any Employee Plan/Agreement, or under any agreement, instrument, Law or Order pursuant to or under which Company has agreed to indemnify or is required to indemnify any person against liability incurred under any such Law or Order.

    3.13.(d)        Full Funding. To Shareholder’s Knowledge, except as described in Schedule 3.13.(d), the funds available under each Employee Plan/Agreement which is intended to be a funded plan exceed the amounts required to be paid, or which would be required to be paid if such Employee Plan/Agreement were terminated, on account of rights vested or accrued as of the Closing Date (using the actuarial methods and assumptions then used by Company’s actuaries in connection with the funding of such Employee Plan/Agreement).

    3.13.(e)        Leased Employees. To Shareholder’s Knowledge, there are not and never have been any leased employees within the meaning of Section 414(n) of the Code who perform services for the Company.

    3.13.(f)        Payments and Compliance. With respect to each Employee Plan/Agreement, to Shareholder’s Knowledge (i) all material payments due from Company to date have been made and all amounts properly accrued to date as liabilities of Company which have not been paid have been properly recorded on the books of Company and are reflected in the Recent Balance Sheet; (ii) Company has complied with, and each such Employee Plan/Agreement conforms in form and operation to, all applicable laws and regulations, including but not limited to ERISA and the Code, in all material respects and all reports and information relating to such Employee Plan/Agreement required to be filed with any governmental entity have been timely filed; (iii) all reports and information relating to each such Employee Plan/Agreement required to be disclosed or provided to participants or their beneficiaries have been timely disclosed or provided; (iv) each such Employee Plan/Agreement which is intended to qualify under Section 401 of the Code has received a favorable determination letter from the Internal Revenue Service with respect to such qualification, its related trust has been determined to be exempt from taxation under Section 501(a) of the Code, and nothing has occurred since the date of such letter that has or is likely to adversely affect such qualification or exemption; (iv) there are no actions, suits or claims pending (other than routine claims for benefits) or threatened with respect to such Employee Plan/Agreement or against the assets of such Employee Plan/Agreement; and (v) no Employee Plan/Agreement is a plan which is established and maintained outside the United States primarily for the benefit of individuals substantially all of whom are nonresident aliens. The Company’s 401(k) Plan has at all times been in compliance with Internal Revenue Code Sections 410(b) and 401(c)(4).

    3.13.(g)        Post-Retirement Benefits. To Shareholder’s Knowledge, no Employment Plan/Agreement provides benefits, including, without limitation, death or medical benefits (whether or not insured) with respect to current or former Company employees beyond their retirement or other termination of service other than (i) coverage mandated by applicable law, (ii) death or retirement benefits under any Employee Plan/Agreement that is an employee pension benefit plan, (iii) deferred compensation benefits accrued as liabilities on the books of Company (including the Recent Balance Sheet), (iv) disability benefits under any Employee Plan/ Agreement that is an employee welfare benefit plan and which have been fully provided for by insurance or otherwise or (v) benefits in the nature of severance pay.

    3.13.(h)        No Triggering of Obligations. To Shareholder’s Knowledge, except as described in Schedule 3.13.(h), the consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of Company to severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any such employee or former employee or (iii) result in any prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.

    3.13.(i)        Delivery of Documents. To Shareholder’s Knowledge, there has been delivered or made available to Buyer, with respect to each Employee Plan/Agreement:

    (i)        a copy of the annual report, if required under ERISA, with respect to each such Employee Plan/Agreement for the last two years;

    (ii)        a copy of the summary plan description, together with each summary of material modifications, required under ERISA with respect to such Employee Plan/Agreement, all material employee communications relating to such Employee Plan/Agreement, and, unless the Employee Plan/Agreement is embodied entirely in an insurance policy to which Company is a party, a true and complete copy of such Employee Plan/Agreement;

    (iii)        if the Employee Plan/Agreement is funded through a trust or any third party funding vehicle (other than an insurance policy), a copy of the trust or other funding agreement and the latest financial statements thereof; and

    (iv)        the most recent determination letter received from the Internal Revenue Service with respect to each Employee Plan/Agreement that is intended to be a “qualified plan” under Section 401 of the Code.

    4.1.(a)       Organization. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Iowa.

    4.1.(b)       Corporate Power. Buyer has all requisite corporate power to enter into this Agreement and the other documents and instruments to be executed and delivered by Buyer and to carry out the transactions contemplated hereby and thereby.

    5.2.(a)       Covenant of Confidentiality. Shareholder shall not, for a period of three (3) years from and after the Closing, except as requested by Buyer, and except pursuant to and as permitted by the Supply Agreement, (i) use for any purpose, (ii) disclose to any person, or (iii) make copies of documents, tapes, discs or programs containing, any confidential information concerning Company. For purposes hereof, “confidential information” shall mean and include, without limitation, all Trade Rights in which Company has an interest, all customer lists and customer information, and all other information concerning Company’s processes, apparatus, equipment, packaging, products, marketing and distribution methods, not previously disclosed to the public directly by Company. Notwithstanding anything herein to the contrary, but without modifying the obligations under this Section 5.2, the parties acknowledge and agree that Shareholder and its affiliates, joint ventures, distributors and franchisees, shall have the right to freely compete with Company and its affiliates in any line of business, including the Company’s current business, and in any geographic area.

    5.2.(b)       Equitable Relief for Violations. Shareholder agrees that the provisions contained in this Section 5.2 are necessary to protect the legitimate continuing interests of Buyer in acquiring the Shares, and that any violation or breach of these provisions will result in irreparable injury to Buyer for which a remedy at law would be inadequate and that, in addition to any relief at law which may be available to Buyer for such violation or breach and regardless of any other provision contained in this Agreement, Buyer shall be entitled to injunctive and other equitable relief as a court may grant after considering the intent of this Section 5.2.(b).

    5.3.(a)       Release of Buyer and Company. Shareholder shall deliver general releases to Buyer and Company, in form and substance satisfactory to Buyer and its counsel, releasing Buyer and the directors, officers, agents and employees of Buyer and releasing Company and the directors of Company from all claims, causes of action, or controversies, at law or in equity, known or unknown, fixed or contingent, suspected or unsuspected, arising from or in connection with the Company’s business, employment agreements, compensation disputes, operations of the Company and all related matters, to the Closing except (i) as may be described in written contracts described in the Disclosure Schedule and expressly described and excepted from such release, and (ii) any claims or causes of action arising out of this Agreement.

    5.3.(b)       Release of Shareholder. Buyer and Company shall deliver general releases to Shareholder, in form and substance satisfactory to Shareholder and its counsel, releasing Shareholder and the directors, officers, agents and employees of Shareholder from all claims, causes of action, or controversies, at law or in equity, known or unknown, fixed or contingent, suspected or unsuspected, arising from or in connection with the Company’s business, employment agreements, compensation disputes, operations of the Company and all related matters, to the Closing Date except (i) as may be described in written contracts described in the Disclosure Schedule and expressly described and excepted from such release, and (ii) any claims or causes of action arising out of this Agreement.

    5.4.(a)       Cooperation on Tax Matters.

    (i)       With respect to Tax Returns of the Company for Tax periods ending on or prior to December 31, 2003, which are filed after the Closing Date, Shareholder shall have the right to review and approve such Tax Returns, which approval shall not be unreasonably withheld. To facilitate Shareholder’s review, Buyer shall deliver such Tax Returns to Shareholder not later than 15 days prior to the relevant due date (including extensions) for filing such Tax Returns. Shareholder shall review and approve (or deliver to Buyer its written objections to) such Tax Returns on or before 5 days prior to the relevant due date. Shareholder and Buyer shall work in good faith to resolve any objections such that Shareholder’s approval may be given. If Shareholder does not object to any such Tax Return by said time, such Tax Return shall be deemed approved. Buyer shall cause the Company to file such Tax Returns and pay any Taxes owed with respect to such Tax Returns.

    (ii)       Buyer and Shareholder shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the performance of certain discrimination tests applicable to qualified plans maintained by Shareholder or the Company, the filing of Tax Returns and any audit, appeal, hearing, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such audit, appeal, hearing, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

    (iii)       Buyer and Shareholder further agree, upon request, to use reasonable efforts to obtain any certificate or other document from any governmental authority or any other person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including, but not limited to, with respect to the transactions contemplated hereby).

    (iv)       Buyer and Shareholder agree to cooperate with each other to the extent necessary to comply with any reporting requirements imposed under Section 6043 and the Treasury Regulations thereunder with respect to the transactions contemplated by this Agreement.

    (v)       Notwithstanding anything herein to the contrary, Shareholder or its designee, at Shareholder’s cost and expense, shall have the right to participate in any audit of any Taxes or Tax Returns of the Company for Tax periods ending on or before December 31, 2003. Such participation shall include, but not be limited to, reviewing any communications and information to be provided to, and attending or participating in meetings or conferences with, the relevant Tax authorities. Buyer and the Company shall not settle any issues related to such audits without the prior written consent of Shareholder, which consent shall not be unreasonably withheld. Any indemnification obligation arising out of such a settlement shall be subject to the provisions of Article 6 of this Agreement.

    5.4.(b)       Tax Sharing Agreement. All Tax sharing agreements or similar agreements with respect to or involving Company shall be terminated as of the Closing Date and, after the Closing Date, Company shall not be bound thereby or have any liability thereunder, and such agreements shall have no further effect for any Tax year (whether the current year, a future year, or a past year).

    5.4.(c)       Amended Tax Returns and Audits. Except for amended Indiana Corporate Income Tax Returns which Buyer and Shareholder agree will be filed as set forth in Section 5.4(e), Buyer shall not, and shall not permit the Company to (i) amend any Tax Return filed by or with respect to the Company for a taxable period ending on or before December 31, 2003, without the express written consent of Shareholder, or (ii) initiate any voluntary audit by a Tax authority for a taxable period ending on or prior to December 31, 2003, without the express written consent of Shareholder.

    5.4.(d)       Tax Refunds. Except for Tax refunds received by the Company due to a carry back of a net operating loss, credit, or other Tax attributable to a Tax period beginning after the date of the Recent Balance Sheet, if, after the Closing Date, Company receives a Tax refund or credit against any Tax of the Company for a Tax period (or portion thereof) ending on or before the date of the Recent Balance Sheet that the Company is not obligated to pay to or reimburse a third party, Buyer shall pay to Shareholder within fifteen calendar days after such receipt an amount equal to 75% of such refund received or credit, together with any interest received or credited thereon and net of any Taxes payable thereon, but only if and to the extent such amount exceeds the amount set forth on the Recent Balance Sheet as an asset or the amount that reduced any liabilities for Taxes set forth on the Recent Balance Sheet.

    5.4.(e)       Indiana Corporate Income Tax. Buyer shall cause the Company to prepare and file amended Indiana Corporate Income Tax Returns for the 2000, 2001 and 2002 Tax periods of the Company. Company shall pay any Taxes (including interest and any penalties or additions thereto) owed with respect to such Tax Returns. Notwithstanding anything to the contrary in this Agreement, Shareholder shall have no liability for any Taxes owed by the Company with respect to the Tax periods covered by such Tax Returns.

    5.4.(f)       Indemnification Payments. Any indemnification payment made pursuant to Article 6 shall be treated for Tax purposes as an adjustment to the Purchase Price.

    6.3.(a)       Notice and Defense. The party or parties to be indemnified (whether one or more, the “Indemnified Party”) will give the party from whom indemnification is sought (the “Indemnifying Party”) written notice of any such Claim (the “Claim Notice”). Failure to give such notice shall not affect the Indemnifying Party’s duty or obligations under this Article 6, except to the extent the Indemnifying Party is prejudiced thereby. The Indemnifying Party shall have thirty (30) calendar days from receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not the Indemnifying Party disputes the Indemnifying Party’s liability to the Indemnified Party hereunder with respect to the Claim and (ii) whether or not the Indemnifying Party desires to undertake the defense of the Claim, provided that the Indemnified Party is authorized (but not obligated) prior to and during the Notice Period to file any motion, answer or other pleading and to take any other action that the Indemnified Party shall deem reasonably necessary or appropriate to protect the Indemnified Party’s interests. If the Indemnifying Party does not respond within the Notice Period, then the Indemnifying Party shall be deemed to have disputed its liability with respect to its obligation to indemnify the Indemnified Party hereunder with respect to the Claim and to have elected not to undertake the defense of the Claim. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that, based on the facts then known to it, the Indemnifying Party does not dispute such Indemnifying Party’s obligation to indemnify hereunder and desires to defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the right to defend (with counsel reasonably satisfactory to the Indemnified Party) by appropriate proceedings; provided that, unless the Indemnified Party otherwise agrees in writing, the Indemnifying Party may not settle any matter (in whole or in part) unless such settlement includes a complete and unconditional release of the Indemnified Party with respect to the Claim. The Indemnified Party shall make available to the Indemnifying Party or its representatives all records and other materials required by them and in the possession or under the control of the Indemnified Party, for the use of the Indemnifying Party and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense.

    6.3.(b)       Failure to Defend. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the Indemnified Party, without waiving any rights against such Indemnifying Party, may settle or defend against any such claim in the Indemnified Party’s sole discretion and, if it is ultimately determined that the Indemnifying Party is responsible therefor under this Article 6, then, subject to the other provisions of this Article 6, the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment.

    6.3.(c)       Indemnified Party’s Rights. Anything in this Section 6.3 to the contrary notwithstanding, if there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, the Indemnified Party shall have the right, at its own expense, to participate in the defense, compromise or settlement of such Claim.

    6.5.(a)       Time Limitation. No claim or action shall be brought under this Article 6 for breach of a representation or warranty after the lapse of eighteen (18) months following the Closing. Regardless of the foregoing, however, or any other provision of this Agreement:

    (i)              There shall be no time limitation on claims on actions brought for breach of any representation or warranty made by Shareholder in or pursuant to Sections 3.2 and Shareholder hereby waives all applicable statutory limitation periods with respect thereto.

    (ii)              Any claim or action brought for breach of any representation or warranty made by Shareholder in or pursuant to Section 3.5 may be brought at any time until the underlying Tax obligation is barred by the applicable period of limitation under federal and state laws relating thereto (as such period may be extended by extension, agreement, waiver, or otherwise).

    (iii)       Any claim or action brought for breach of any representation or warranty made by Shareholder in or pursuant to Section 3.9.(c) may be brought at any time until the fifth anniversary of the Closing.

    (iv)       Any claim made by a party hereunder by a demand for arbitration in accordance with Article 8 hereof for breach of a representation or warranty prior to the termination of the survival period for such claim shall be preserved despite the subsequent termination of such survival period.

    6.5.(b)       Amount Limitation. Except with respect to claims for breaches of representations or warranties contained in Section 3.2, notwithstanding any provision of this Agreement to the contrary, (i) an Indemnified Party shall not be entitled to indemnification under this Article 6 for breach of a representation or warranty (other than for breach of a representation or warranty contained in Section 3.5, for which an Indemnified Party shall be entitled to indemnification under this Article 6 unless the Buyer subsequent to the Closing breaches its covenant in Section 5.4(c) (a “Tax Claim”)) unless the amount of the Claim exceeds $10,000, and if the amount of the Claim exceeds $10,000 (a “Qualified Claim”), Indemnified Party shall not be entitled to indemnification under this Article 6 for breach of a representation or warranty unless the aggregate of the Indemnifying Party’s indemnification obligations to the Indemnified Party pursuant to this Article 6 for Qualified Claims (but for this Section 6.5.(b)) exceeds $100,000, and then only to the extent of such excess, and in no event shall the aggregate liability of the Indemnifying Party under this Agreement for Qualified Claims or Tax Claims exceed 50% of the Purchase Price, (the “Aggregate Limit”)(provided, however, that the aggregate liability of the Indemnifying Party under this Agreement for breach of a representation or warranty contained in Section 3.9(c) (an “Environmental Claim”) shall not exceed $7,000,000, which amount shall count against, and not be in addition to, the Aggregate Limit, and provided, further, that an Indemnified Party shall not be entitled to indemnification under this Article 6 for an Environmental Claim if (I) the Environmental Claim is made with respect to a property at which there has been a material change in the use of such property subsequent to the Closing, from its existing industrial use to a use that requires a more stringent application of the applicable Environmental Laws), or (II) if the event or condition giving rise to the Environmental Claim was known to the Buyer or the other shareholders of the Company prior to the Closing; and (ii), Shareholder shall be liable hereunder only for an amount equal to seventy-five percent (75%) of any Claim with respect to a particular matter.

    7.1.(a)       Stock Certificate(s). A stock certificate or certificates representing the Shares, duly endorsed for transfer or with duly executed stock powers attached.

    7.1.(b)       Supply Agreement. Evidence of the cancellation of the existing “Marketing, Supply and Co-Borrowing Agreement,” dated April 24, 1996, and executed originals of a new Supply Agreement between Shareholder and Company in the form attached hereto as Exhibit A.

    7.1.(c)       Cancellation of Amended and Restated Stock Retirement and Purchase Agreement. Evidence of the cancellation of that certain “Amended and Restated Stock Retirement and Purchase Agreement,” as amended, dated April 24, 1996, as amended, by and among the Company, Shell Oil Company and the other stockholders of the Company.

    7.1.(d)       General Releases. The General Releases referred to in Section 5.3.(a), duly executed by Shareholder.

    7.1.(e)       Resignations. The resignations of ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ as directors of the Company, and the resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as an officer of the Company, effective as of the Closing Date.

    7.1.(f)       FIRPTA Affidavit. An affidavit or affidavits from Shareholder in form and substance satisfactory to Buyer complying with the Treasury Regulations issued pursuant to Section 1445 of the Code so that Buyer is exempt from withholding any portion of the Purchase Price thereunder.

    7.1.(g)       Loan Repayment Amount. Written acknowledgement of Shareholder of the payment of the Loan Repayment Amount in a form reasonably acceptable to Buyer’s counsel.

    7.1.(h)       Amended and Restated By-Laws. A copy of the Amended and Restated By-laws of Company in the form attached hereto as Exhibit B, certified by the Secretary of the Company.

    7.2.(a)       Wire Transfers. The Purchase Price and Loan Repayment Amount, in each case, by wire transfer as required by Section 2.2 hereof.

    7.2.(b)       General Releases. The General Releases referred to in Section 5.3.(b), duly executed by Buyer and Company.

    9.7.(a)       Assignment. Except as expressly provided herein, the rights and obligations of a party hereunder may not be assigned, or otherwise transferred or encumbered directly or indirectly and including transfers by operation of law, without the prior written consent of the other party. Notwithstanding the foregoing, Buyer may, without consent of any other party, cause one or more wholly-owned affiliates of Buyer to carry out all or part of the transactions contemplated hereby; provided, however, that Buyer shall, nevertheless, remain liable for all of its obligations, and those of any such affiliate, to Shareholder hereunder.

    9.7.(b)       Parties in Interest. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties hereto. Nothing contained herein shall be deemed to confer upon any other person any right or remedy under or by reason of this Agreement.

    9.11.(a)       Brokerage. Except as to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. who shall be compensated by Buyer, Shareholder and Buyer each represent and warrant to each other that there is no broker involved or in any way connected with the transfer provided for herein on their behalf respectively (and Shareholder represents and warrants that, to Shareholder’s Knowledge, there is no broker involved on behalf of Company) and each party agrees to hold the other party harmless from and against all other claims for brokerage commissions or finder’s fees incurred by such first party in connection with the execution of this Agreement or the transactions provided for herein. Each party shall be responsible for any and all other costs and expenses incurred by it in connection with this Agreement.

    9.11.(b)       Costs of Litigation or Arbitration. The parties agree that (subject to the discretion, in an arbitration proceeding, of the arbitrator as set forth in Section 8.4) the prevailing party in any action brought with respect to or to enforce any right or remedy under this Agreement shall be entitled to recover from the other party or parties all reasonable costs and expenses of any nature whatsoever incurred by the prevailing party in connection with such action, including without limitation attorneys’ fees and prejudgment interest.