-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MgY9humuC3LVpwQy2YWSPmVofVWKo0OEeegR5TG1hYWmtSM8vVKH6NxdEvKzLOQk drsISuEVlZ6bFLlSUEqZ1Q== 0000902277-96-000003.txt : 19970430 0000902277-96-000003.hdr.sgml : 19970430 ACCESSION NUMBER: 0000902277-96-000003 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19960520 ITEM INFORMATION: Acquisition or disposition of assets FILED AS OF DATE: 19960604 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELTA & PINE LAND CO CENTRAL INDEX KEY: 0000902277 STANDARD INDUSTRIAL CLASSIFICATION: 0100 IRS NUMBER: 621040440 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14136 FILM NUMBER: 96576682 BUSINESS ADDRESS: STREET 1: ONE COTTON ROW CITY: SCOTT STATE: MI ZIP: 38772 BUSINESS PHONE: 6017423351 MAIL ADDRESS: STREET 1: ONE COTTON ROW CITY: SCOTT STATE: MS ZIP: 38772 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): May 20, 1996 Exact name of registrant as specified in its charter: Delta and Pine Land Company State of Incorporation: Delaware Commission File Number: 000-21788 I.R.S. Employer Identification Number: 62-1040440 Address of Principal Executive Offices (including zip code) One Cotton Row, Scott, Mississippi 38772 Registrant's telephone number, including area code: (601) 742-3351 Item 2. Acquisition or Disposition of Assets: Merger of D&PL1, D&PL2 and D&PL3, wholly-owned subsidiaries of Delta and Pine Land Company (the "Company"), with and into Arizona Processing, Inc. ("API"), Ellis Brothers Seed, Inc. ("EBS") and Mississippi Seed, Inc. ("MSI"), respectively, separately and collectively known as The Sure Grow Companies, effective May 21, 1996, to be accounted for as a pooling of interests. 1. Agreement Between the D&PL Companies and The Sure Grow Companies, Sure Grow Shareholders and Sure Grow Principals. On May 21, 1996, pursuant to the Agreement between the D&PL Companies and The Sure Grow Companies, Sure Grow Shareholders and Sure Grow Principals dated May 20, 1996 (the "Agreement"), D&PL1, D&PL2, and D&PL3, wholly-owned subsidiaries of Delta and Pine Land Company (the "Company"), acquired by merger Arizona Processing, Inc. ("API"), Ellis Brothers Seed, Inc. ("EBS") and Mississippi Seed, Inc. ("MSI"), respectively. The Company exchanged 1,548,483 unregistered shares of its common stock for all of the issued and outstanding shares of API, EBS and MSI. The merger will be accounted for as a pooling of interests. API, EBS and MSI will continue to operate as separate subsidiaries of the Company. All current employees of the acquired companies are expected to continue their employment. Item 7. Financial Statements and Exhibits: (a) Financial statements of businesses acquired: To be filed by amendment (c) Exhibits: 10.27 Agreement between the D&PL Companies and The Sure Grow Companies, Sure Grow Shareholders and Sure Grow Principals dated May 20, 1996. SIGNATURES Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. DELTA AND PINE LAND COMPANY Date: June 4, 1996 By: /s/ W. Thomas Jagodinski ------------------------ W. Thomas Jagodinski, Vice President and Treasurer EX-1 2 AGREEMENT BETWEEN THE D&PL COMPANIES AND THE SURE GROW COMPANIES, SURE GROW SHAREHOLDERS AND SURE GROW PRINCIPALS Dated May 20, 1996 TABLE OF CONTENTS Page ARTICLE 1. DEFINITIONS 1.1 Agreement . . . . . . . . . . . . . . . . . . . 1.2 API . . . . . . . . . . . . . . . . . . . . . . 1.3 API Shareholders . . . . . . . . . . . . . . . . 1.4 Authorized Representatives . . . . . . . . . . . 1.5 Books and Records . . . . . . . . . . . . . . . 1.6 Breeder Seed . . . . . . . . . . . . . . . . . . 1.7 Breeding . . . . . . . . . . . . . . . . . . . . 1.8 Breeding Populations . . . . . . . . . . . . . . 1.9 CERCLA . . . . . . . . . . . . . . . . . . . . 1.10 CERCLIS . . . . . . . . . . . . . . . . . . . . 1.11 Certified Seed . . . . . . . . . . . . . . . . . 1.12 Closing Date . . . . . . . . . . . . . . . . . . 1.13 Code . . . . . . . . . . . . . . . . . . . . . 1.14 Conditioning or To Condition . . . . . . . . . . 1.15 Conditions Precedent . . . . . . . . . . . . . . 1.16 Confidentiality Agreement . . . . . . . . . . . 1.17 Consideration . . . . . . . . . . . . . . . . . 1.18 Contracts . . . . . . . . . . . . . . . . . . . 1.19 Cotton . . . . . . . . . . . . . . . . . . . . 1.20 Cotton Germplasm . . . . . . . . . . . . . . . . 1.21 Cotton Planting Seed . . . . . . . . . . . . . . 1.22 Delinting or To Delint . . . . . . . . . . . . . 1.23 D&PL . . . . . . . . . . . . . . . . . . . . . 1.24 D&PL Common Stock . . . . . . . . . . . . . . . 1.25 D&PL Companies . . . . . . . . . . . . . . . . 1.26 D&PL Entities . . . . . . . . . . . . . . . . . 1.27 D&PL's Products Liability . . . . . . . . . . . 1.28 D&PL Subs . . . . . . . . . . . . . . . . . . . 1.29 Discrimination Laws . . . . . . . . . . . . . . 1.30 EBS . . . . . . . . . . . . . . . . . . . . . . 1.31 EBS Shareholders . . . . . . . . . . . . . . . 1.32 Employee . . . . . . . . . . . . . . . . . . . 1.33 Environmental Claim . . . . . . . . . . . . . . 1.34 Environmental Law . . . . . . . . . . . . . . . 1.35 Environmental Site Assessment Report(s) . . . . 1.36 Equipment . . . . . . . . . . . . . . . . . . . 1.37 ERISA . . . . . . . . . . . . . . . . . . . . . 1.38 Experimental Lines and Strains . . . . . . . . . 1.39 Escrow Holder . . . . . . . . . . . . . . . . . 1.40 Financial Statements . . . . . . . . . . . . . . (a) Audited Separate Company Financial Statements . . . . . . . . . . . (b) Unaudited Separate Company Financial Statements . . . . . . . . . . . (c) (i) Audited Combined Financial Statements . . . . . . . . . . . . . . (ii) Unaudited Quarterly Combined Financial Statements . . . . . . . . . 1.41 Foundation Seed . . . . . . . . . . . . . . . . 1.42 GAAP . . . . . . . . . . . . . . . . . . . . . 1.43 GAAS . . . . . . . . . . . . . . . . . . . . . 1.44 Governmental Body . . . . . . . . . . . . . . . 1.45 Hazardous Materials . . . . . . . . . . . . . . 1.46 HSR Act . . . . . . . . . . . . . . . . . . . . 1.47 Indemnification Representative . . . . . . . . . 1.48 Indemnified Party . . . . . . . . . . . . . . . 1.49 Indemnified Taxes . . . . . . . . . . . . . . . 1.50 Indemnifying Party . . . . . . . . . . . . . . 1.51 Intellectual Property . . . . . . . . . . . . . 1.52 Inventory . . . . . . . . . . . . . . . . . . . 1.53 Legal Requirement . . . . . . . . . . . . . . . 1.54 License Agreements . . . . . . . . . . . . . . 1.55 Lien . . . . . . . . . . . . . . . . . . . . . 1.56 Marketing or To Market . . . . . . . . . . . . . 1.57 MSI . . . . . . . . . . . . . . . . . . . . . . 1.58 MSI Shareholders . . . . . . . . . . . . . . . 1.59 NPL . . . . . . . . . . . . . . . . . . . . . . 1.60 Official Seed Certifying Agency . . . . . . . . 1.61 Order . . . . . . . . . . . . . . . . . . . . . 1.62 Permits . . . . . . . . . . . . . . . . . . . . 1.63 Permitted Liens and Title Exceptions . . . . . . 1.64 Pooling-of-Interests . . . . . . . . . . . . . . 1.65 Production or To Produce . . . . . . . . . . . . 1.66 PVPA . . . . . . . . . . . . . . . . . . . . . 1.67 Quality Control . . . . . . . . . . . . . . . . 1.68 RCRA . . . . . . . . . . . . . . . . . . . . . 1.69 Real Property . . . . . . . . . . . . . . . . . 1.70 Registered Seed . . . . . . . . . . . . . . . . 1.71 Regulated Material . . . . . . . . . . . . . . . 1.72 Release . . . . . . . . . . . . . . . . . . . . 1.73 Research . . . . . . . . . . . . . . . . . . . 1.74 SEC . . . . . . . . . . . . . . . . . . . . . . 1.75 SGS . . . . . . . . . . . . . . . . . . . . . . 1.76 SGS Shareholders . . . . . . . . . . . . . . . 1.77 Storing or To Store . . . . . . . . . . . . . . 1.78 Sure Grow Affiliated Assts . . . . . . . . . . 1.79 Sure Grow Companies . . . . . . . . . . . . . . 1.80 Sure Grow Cotton Planting Seed Business . . . . 1.81 Sure Grow Cotton Varieties . . . . . . . . . . . 1.82 Sure Grow Principals . . . . . . . . . . . . . . 1.83 Sure Grow's Products Liability . . . . . . . . . 1.84 Sure Grow Shareholders. . . . . . . . . . . . . 1.85 Tax Contest . . . . . . . . . . . . . . . . . . 1.86 Taxes . . . . . . . . . . . . . . . . . . . . . 1.87 Tax Returns . . . . . . . . . . . . . . . . . . 1.88 Transaction . . . . . . . . . . . . . . . . . . 1.89 Transaction Costs . . . . . . . . . . . . . . . 1.90 Warehousing or To Warehouse . . . . . . . . . . ARTICLE 2. PLAN OF REORGANIZATION . . . . . . . . . . . . . . 2.1 Plan of Reorganization . . . . . . . . . . . . . 2.2 Merger, Consideration and Conversion or Cancellation of Shares . . . . . . . . . . . 2.3 Deposit and Endorsement of Certificates . . . . 2.4 Corporate Actions at Closing . . . . . . . . . . 2.5 Restriction on Transfer of D&PL Common Stock . . ARTICLE 3. CONDITIONS PRECEDENT TO CLOSING . . . . . . . . . . 3.1 Conditions Precedent to Participation by the D&PL Companies in Closing . . . . . . . . . 3.2 Conditions Precedent to Participation by Sure Grow Companies and Sure Grow Shareholders in Closing . . . . . . . . . . . . . . . . . . 3.3 Payment of Transaction Costs . . . . . . . . . . ARTICLE 4. PRE-CLOSING ACTIVITIES . . . . . . . . . . . . . . 4.1 Operation of Sure Grow Companies' Businesses . . 4.2 Access to Property and Records; Confidentiality . . . . . . . . . . . . . . . . 4.3 Environmental Conditions and Title . . . . . . . (a) Environmental Site Assessments . . . . . . (b) Title Commitments . . . . . . . . . . . . . (c) Cure of Title Exceptions . . . . . . . . . (d) Pre-Closing Casualty Damage . . . . . . . . 4.4 Audited and unaudited Financial Statements . . . 4.5 Acquisition of Sure Grow Affiliated Assets . . . ARTICLE 5. POST-CLOSING ACTIVITIES . . . . . . . . . . . . . . 5.1 Post-Closing Operations . . . . . . . . . . . . 5.2 Continued Employment of Senior Management of Sure Grow Companies . . . . . . . . . . . . 5.3 Filing of Tax Returns . . . . . . . . . . . . . 5.4 Pooling-of-Interests . . . . . . . . . . . . . 5.5 Cure of Environmental Conditions . . . . . . . . 5.6 Cooperation in the Event of Inquiry or Litigation . . . . . . . . . . . . . . . . . 5.7 Post-Closing Deliveries of Financial Statements . . . . . . . . . . . . . . . . . . . 5.8 Releases of Personal Guarantees . . . . . . . . ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF THE D&PL COMPANIES . . . . . . . . . . . . . . . . . . 6.1 Due Incorporation . . . . . . . . . . . . . . . 6.2 Power and Authority of the D&PL Companies; Legal and Authorized Transactions . . . . . . . 6.3 Capital Stock and Shareholders of the D&PL Companies . . . . . . . . . . . . . . . . 6.4 No Conflicts . . . . . . . . . . . . . . . . . 6.5 Full Disclosure . . . . . . . . . . . . . . . . 6.6 Authenticity of Documents . . . . . . . . . . . 6.7 Statements Made . . . . . . . . . . . . . . . . 6.8 No Material Adverse Change . . . . . . . . . . . 6.9 No Broker . . . . . . . . . . . . . . . . . . . 6.10 Additional Representations of the D&PL Companies . . . . . . . . . . . . . . . ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF THE SURE GROW COMPANIES 7.1 Due Incorporation . . . . . . . . . . . . . . . 7.2 Power and Authority of the Sure Grow Companies . . . . . . . . . . . . . . . . . . . 7.3 Capital Stock and Shareholders of the Sure Grow Companies . . . . . . . . . . . . . . 7.4 No Conflicts . . . . . . . . . . . . . . . . . 7.5 Real Property . . . . . . . . . . . . . . . . . 7.6 Environmental Claims . . . . . . . . . . . . . (a) Permits . . . . . . . . . . . . . . . . . (b) Handling of Hazardous Materials . . . . . . (c) Environmental Liens . . . . . . . . . . . . 7.7 Equipment . . . . . . . . . . . . . . . . . . . 7.8 Seed Rights . . . . . . . . . . . . . . . . . . 7.9 Inventory . . . . . . . . . . . . . . . . . . . 7.10 Compliance with Laws . . . . . . . . . . . . . . 7.11 Actions and Proceedings . . . . . . . . . . . . 7.12 Contracts and License Agreements . . . . . . . . 7.13 Full Disclosure . . . . . . . . . . . . . . . . 7.14 Authenticity of Documents . . . . . . . . . . . 7.15 Statements Made . . . . . . . . . . . . . . . . 7.16 Financial Statements . . . . . . . . . . . . . . 7.17 Liabilities . . . . . . . . . . . . . . . . . . 7.18 Cash Reserves . . . . . . . . . . . . . . . . . 7.19 No Material Adverse Change . . . . . . . . . . . 7.20 Taxes . . . . . . . . . . . . . . . . . . . . . 7.21 Employees . . . . . . . . . . . . . . . . . . . 7.22 Employee Benefit Plans . . . . . . . . . . . . . (a) ERISA . . . . . . . . . . . . . . . . . . (b) Pension and Profit Sharing Plan . . . . . . (c) Title IV Plans . . . . . . . . . . . . . . (d) Continuation Coverage Requirements of Health Plan . . . . . . . . . . . . . . (e) Fines and Penalties . . . . . . . . . . . . 7.23 Physical Damage . . . . . . . . . . . . . . . . 7.24 Insurance . . . . . . . . . . . . . . . . . . . 7.25 No Broker . . . . . . . . . . . . . . . . . . . 7.26 SURE GROW Name . . . . . . . . . . . . . . . . 7.27 Investment Intent . . . . . . . . . . . . . . . 7.28 Additional Representations of Sure Grow Companies and Sure Grow Shareholders . . . . . 7.29 Representations Relevant to Inapplic- ability of the HSR Act . . . . . . . . . . . . ARTICLE 8. INDEMNIFICATION 8.1 Obligation of Sure Grow Shareholders to Indemnify . . . . . . . . . . . . . . . . . (a) Indemnity Obligations . . . . . . . . . . . (b) Limitations on Indemnity Obligations . . . (c) Tax Indemnity . . . . . . . . . . . . . . (d) Tax Contest . . . . . . . . . . . . . . . . 8.2 Obligation of the D&PL Companies to Indemnify . . . . . . . . . . . . . . . . . (a) Indemnity Obligations . . . . . . . . . . . (b) Limitations on Indemnity Obligations . . . 8.3 Indemnification Representative . . . . . . . . . 8.4 Notice of Claim by Third Party . . . . . . . . . 8.5 Notice of Loss . . . . . . . . . . . . . . . . . 8.6 Escrow Fund . . . . . . . . . . . . . . . . . . 8.7 Limitations on Claims for Indemnity . . . . . . 8.8 Survival . . . . . . . . . . . . . . . . . . . 8.9 Exclusivity of Remedies . . . . . . . . . . . . ARTICLE 9. CLOSING 9.1 Place of Closing . . . . . . . . . . . . . . . . 9.2 Closing Date . . . . . . . . . . . . . . . . . ARTICLE 10. TERMINATION 10.1 Termination of Agreement . . . . . . . . . . . 10.2 Effect of Termination . . . . . . . . . . . . . ARTICLE 11. ADDITIONAL COVENANTS AND AGREEMENTS 11.1 Expenses of Transaction . . . . . . . . . . . . 11.2 Further Assistance . . . . . . . . . . . . . . 11.3 No Publicity . . . . . . . . . . . . . . . . . 11.4 Further Assurances . . . . . . . . . . . . . . . 11.5 Bulk Sales Laws . . . . . . . . . . . . . . . . 11.6 No Partnership, Joint Venture or Third Person Beneficiaries . . . . . . . . . . . . . 11.7 Confidentiality Obligations . . . . . . . . . . ARTICLE 12. MISCELLANEOUS 12.1 Risk of Loss . . . . . . . . . . . . . . . . . 12.2 Authorized Representatives and Notices . . . . . 12.3 Entire Agreement; Conflicting Provisions . . . . 12.4 Knowledge . . . . . . . . . . . . . . . . . . . 12.5 Waivers and Amendments . . . . . . . . . . . . . 12.6 Arbitration and Forum Selection . . . . . . . . 12.7 Governing Law . . . . . . . . . . . . . . . . . 12.8 Assignment . . . . . . . . . . . . . . . . . . 12.9 Invalidity of Particulr Provision . . . . . . . 12.10 Specific Enforcement . . . . . . . . . . . . . 12.11 Counterparts . . . . . . . . . . . . . . . . . 12.12 Schedules . . . . . . . . . . . . . . . . . . 12.13 Headings . . . . . . . . . . . . . . . . . . . 12.14 Gender and Number . . . . . . . . . . . . . . . Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . AGREEMENT This Agreement is made and entered into as of this the 20th day of May, 1996, among the following: DELTA AND PINE LAND COMPANY, a Delaware corporation, having its principal place of business at Scott, Mississippi ("D&PL"); D&PL1, Inc., a Delaware corporation and wholly-owned subsidiary of D&PL, having its principal place of business at Scott, Mississippi ("D&PL1"); D&PL2, Inc., a Delaware corporation and wholly-owned subsidiary of D&PL, having its principal place of business at Scott, Mississippi ("D&PL2"); D&PL3, Inc., a Delaware corporation and wholly-owned subsidiary of D&PL, having its principal place of business at Scott, Mississippi ("D&PL3"); SURE GROW SEED, INC., an Alabama corporation, having its principal place of business at Centre, Alabama ("SGS"); ARIZONA PROCESSING, INC., an Arizona corporation, having its principal place of business at Chandler, Arizona ("API"); ELLIS BROTHERS SEED, INC., an Alabama corporation, having its principal place of business at Centre, Alabama ("EBS"); MISSISSIPPI SEED, INC., a Mississippi corporation, having its principal place of business at Tunica, Mississippi ("MSI"); and The shareholders in API, EBS, and MSI who are identified collectively on Schedules 1.3, 1.31, and 1.58 ("Sure Grow Share holders") and certain other persons identified in Section 1.82 ("Sure Grow Principals"). The above-described entities and persons are hereinafter referred to collectively as "Parties" and singularly as a "Party" to- wit: R E C I T A L S: WHEREAS, the Parties desire to cause a transaction in which D&PL1, D&PL2 and D&PL3 will be merged with API, EBS and MSI, respectively, which shall each survive the merger and whose stock shall be owned by D&PL, subject to the Conditions Precedent and under the other terms and conditions set forth in this Agreement; and WHEREAS, the Parties intend that the Transaction will be recognized as a tax-free reorganization under Sec.368(a)(2)(E) of the Internal Revenue Code and will qualify for accounting purposes as a Pooling-of-Interests under Generally Accepted Accounting Princi ples; and WHEREAS, in connection with the Transaction, the Parties agree to make certain commitments to one another; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Parties agree as follows: ARTICLE 1. DEFINITIONS For purposes of this Agreement, the following terms shall be defined as follows: 1.1 "Agreement" means this Agreement, all attached exhibits and schedules, and all other documents to be executed pursuant to this Agreement. 1.2 "API" means Arizona Processing, Inc., an Arizona corporation, organized under the laws of the State of Arizona with its principal place of business at Chandler, Arizona. 1.3 "API Shareholders" mean those entities or persons listed on Schedule 1.3. 1.4 "Authorized Representatives" mean the persons designated to receive notices and to act on behalf of the respective Parties as provided in Section 12.2. 1.5 "Books and Records" mean all books, records (in whatever form stored) and other documents relating to the Sure Grow Cotton Planting Seed Business, including, but not limited to, trade secrets and proprietary information pertaining to the Sure Grow Cotton Planting Seed Business, technology, computer programs and other data of all types related to Research, Breeding, Production, Delinting, Conditioning, Quality Control and Marketing (including, without limitation, sales records, customer lists, and marketing programs) of Cotton Planting Seed and/or related to the Sure Grow Companies' business relationship with each other, and with their respective employees, shareholders, customers, claimants, Governmental Bodies, and any other persons or entities, and including all copyrights in and to Books and Records, but excluding, however, any such documents which contain only information pertaining to the personal business of one or more of the Sure Grow Shareholders and/or their families or which is subject to non-disclosure under an attorney-client privilege between one or more Sure Grow Shareholders and/or their families and their respective personal counsel, unless such records contain information about facts which have or could reasonably be construed to have a material affect on the Sure Grow Cotton Planting Seed Business. 1.6 "Breeder Seed" means that limited amount of Cotton seed used by the originating or sponsoring plant breeder in breeding or maintaining a strain or variety, which is maintained under the supervision and control of the originating or sponsoring plant breeder and has never intentionally been made available by any Party hereto, or, to the best knowledge of the Sure Grow Shareholders and the Sure Grow Principals by the breeder thereof, for sale to or use by the general public. Breeder Seed may be used or have been used for the production of Foundation Seed or Registered Seed. 1.7 "Breeding" means the Sure Grow Companies' entire activity of propagating plants and recombining genes for the purpose of improving the characteristics of the plants. Breeding also includes the multiplication, propagation, maintaining, and increase of Breeder Seed and Foundation Seed of parental lines in preparation for production of Cotton Planting Seed. 1.8 "Breeding Populations" mean all of the Sure Grow Companies' plant propagating materials, including but not limited to seed of Experimental Lines and Strains, used in Research or Breeding. 1.9 "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the rules and regulations promulgated thereunder. 1.10 "CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System as provided for by 40 C.F.R. Sec.300.5. 1.11 "Certified Seed" means the direct progeny of Breeder Seed, Foundation Seed, or Registered Seed produced and handled by the Sure Grow Companies or persons under contract with them in such way as to maintain satisfactory genetic identity and purity as approved by the Official Seed Certifying Agency for identification and sale as Certified Seed. 1.12 "Closing Date" shall have the meaning set forth in Section 9.2. 1.13 "Code" means the Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder. 1.14 "Conditioning" or "To Condition" means the entire activity of handling, delinting and treating delinted Cotton seed, including, but not limited to, treating such seed with seed coat chemicals and bagging of such seed. 1.15 "Conditions Precedent" mean the conditions, expressly set forth in Article 3, which must be fulfilled or waived by D&PL and the D&PL Subs and/or the Sure Grow Companies and the Sure Grow Principals, as applicable, as of the Closing Date as conditions precedent to the respective Parties' obligations to close the Transaction described in this Agreement. 1.16 "Confidentiality Agreement" means the Amended and Restated Confidentiality Agreement dated as of December 26, 1995, attached hereto as Schedule 1.16. 1.17 "Consideration" shall have the meaning set forth in Section 2.2. 1.18 "Contracts" mean those certain contracts listed on Schedule 1.18 and any other contracts or agreements, oral or written to which the Sure Grow Companies are a party or a third party beneficiary. 1.19 "Cotton" means plants of the genus Gossypium. 1.20 "Cotton Germplasm" means all genotypes of a species of Cotton, embodied in Cotton Planting Seed or otherwise. 1.21 "Cotton Planting Seed" means Cotton seed which is intended for and has been so produced and handled by or for the Sure Grow Companies as to be suitable for planting to produce Cotton plants in commercial agriculture. 1.22 "Delinting" or "To Delint" means the entire activity of separating lint fibers from ginned Cotton seed as a step in conditioning the Cotton seed for planting and/or for marketing as Cotton Planting Seed. 1.23 "D&PL" means Delta and Pine Land Company, a corporation organized under the laws of the State of Delaware with its principal place of business at Scott, Mississippi. 1.24 "D&PL Common Stock" means voting common stock, of the par value $.10 per share, as authorized by the Fourth Article of the Restated Certificate of Incorporation of D&PL, as the same may be amended from time to time, which shares of stock, except for the rights and restrictions referred to in Section 2.5, have the same rights and restrictions in all respects as all other authorized, issued, and outstanding common stock of D&PL. 1.25 "D&PL Companies" mean each and every one of D&PL and the D&PL Subs, separately and collectively. 1.26 "D&PL Entities" means each and every one of the D&PL Companies and any corporation or division thereof or other legal entity controlled by, controlling or under common control with the D&PL Companies, their successors or assigns. 1.27 "D&PL's Products Liability" shall mean any actual liability to which the D&PL Companies, any of the Sure Grow Companies (as may be in existence after the Closing Date) or the Sure Grow Shareholders or Sure Grow Principals may become subject insofar as such liability arises out of or otherwise relates to any express or implied representation, warranty, agreement or guaranty to a customer, user or purchaser made or claimed to have been made by the D&PL Companies or any of the Sure Grow Companies (as may be in existence after the Closing Date), or an employee with apparent authority of the D&PL Companies or any of the Sure Grow Companies (as may be in existence after the Closing Date), or arising out of or asserted to be arising out of negligence, strict liability or other rule of law in connection with Producing, Delinting, Conditioning, Storing or Marketing of such product by the D&PL Companies or the Sure Grow Companies after the Closing Date. 1.28 "D&PL Subs" means D&PL1, D&PL2 and D&PL3, Delaware corpora tions, which are wholly-owned subsidiaries of D&PL, with their principal places of business at Scott, Mississippi. 1.29 "Discrimination Laws" means all federal laws, rules and regulations relating to age, race, disability and sex discrimination and harassment set forth in Title VII of the Civil Rights Act of 1964 (42 U.S.C. Sec.2000e), the Americans with Disabilities Act (42 U.S.C. Sec.12102 et seq.), the Age Discrimination in Employment Act (29 U.S.C. Sec.621 et seq.), and 42 U.S.C. Sec.1981, all as amended, and any applicable state laws, rules and regulations, if any, on the same subjects. 1.30 "EBS" means Ellis Brothers Seed, Inc., a corporation organized under the laws of the State of Alabama, with its principal place of business at Centre, Alabama. 1.31 "EBS Shareholders" mean those entities or persons listed on Schedule 1.31. 1.32 "Employee" means any person who is employed by or works for the Sure Grow Companies full or part time as an officer or employee, and, in addition, means any person who is providing Breeding services for the Sure Grow Companies whether as an employee, independent contractor, or any other capacity. 1.33 "Environmental Claim" means any written claim, demand, or other communication by any person or Governmental Body alleging or asserting liability for investigatory costs, clean up costs, response costs, damages, personal injuries, fines, or penalties arising out of, based on, or resulting from (a) the presence or Release into the environment of any Hazardous Materials in excess of allowable limits under the Environmental Laws, or (b) circumstances forming a reasonable basis for any violation, or alleged violation, of any Environmental Law. 1.34 "Environmental Law" means (a) any applicable federal, state or local law, statute, ordinance, rule, regulation, code, license, permit, written authorization, written approval, written consent, legal doctrine, order, directive, executive or administra tive order, judgment, decree, injunction, requirement or agreement with any Governmental Body, (i) relating to the protection, preserva tion or restoration of the environment (which includes, without limitation, air, water vapor, surface water, ground water, drinking water supply, structures, soil, surface land, subsurface land, plant and animal life or any other natural resource), or to human health or safety, or (ii) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of, Hazardous Materials, in each case as amended and in effect on the date of this Agreement. The term Environmental Law includes, without limitation, CERCLA, the Superfund Amendments and Reauthorization Act, the federal Water Pollution Control Act of 1972, the federal Clean Air Act, the federal Clean Water Act, RCRA, the federal Solid Waste Disposal Act and the federal Toxic Substances Control Act, the federal Insecti cide, Fungicide and Rodenticide Act, the federal Occupational Safety and Health Act of 1970, the federal Hazardous Materials Transportation Act, or any other so-called "Super fund" or "Super lien" law, each as amended and in effect on the date of this Agreement and (b) any applicable common law or equitable doctrine (including, without limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations for injuries or damages due to, or threatened as a result of, the presence of or exposure to any Hazardous Materials in excess of allowable limits under the Environmental Laws and in existence as of Closing Date. 1.35 "Environmental Site Assessment Report(s)" means (a) Phase I Environmental Site Assessment Report, Ellis Brothers Seed, Inc., Route 1, Box 310, Ellisville, Alabama 35960, EnSafe Project Number 3005-128, dated January 11, 1996; (b) Phase I Environmental Site Assessment Report, Arizona Processing and Sure Grow Seed Company, Riggs and Maricopa Roads, Chandler, Arizona 85248, EnSafe Project Number 3005-129, dated November 30, 1995; (c) Phase I Environmental Site Assessment Report, Mississippi Seed, Inc., Highway 61, Tunica, Mississippi 38676, EnSafe Project Number 3005-130, dated December 18, 1995; and (d) Phase I Environmental Site Assessment Report, Mississippi Seed, Inc., Highway 61, Shelby, Mississippi 38774, EnSafe Project Number 3005-130, December 28, 1995. 1.36 "Equipment" means the fixtures, furniture, office equipment, research equipment, tools, devices, appurtenances, machinery, vehicles, equipment, materials, and other items of tangible personal property located at the Real Property, owned by any of the Sure Grow Companies, and/or regularly used in the Sure Grow Cotton Planting Seed Business, as listed in Schedule 1.36-A but expressly excluding those items listed on Schedule 1.36-B. Notwith standing the foregoing, any item of equipment or other tangible personal property (other than Inventory) not listed in Schedule 1.36- B that presently is owned by the Sure Grow Companies and/or being regularly used in the Sure Grow Cotton Planting Seed Business shall be included in Equipment. 1.37 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder. 1.38 "Experimental Lines and Strains" means all separate populations of cotton cultivars, developed by Sure Grow Companies' breeders or otherwise owned by or used in the Sure Grow Companies' Breeding program as of August 18, 1995, and at any time since that date, expressing similar and distinguishable agronomic characteris tics but which are at a research selection stage where the individual populations of cultivars have not yet been designated a Sure Grow Variety. 1.39 "Escrow Holder" shall mean Harris Trust and Savings Bank, a banking corporation with its principal place of business in Chicago, Illinois. 1.40 "Financial Statements" shall mean collectively: (a) "Audited Separate Company Financial Statements", which shall mean: (i) with respect to SGS: the independent auditor's report, dated October 20, 1995, audited balance sheets, income statements, statements of cash flow, statements of retained earnings, notes to the financial statements, Schedule I-operating and selling expenses and Schedule II-gross profit report, as of and for the years ended August 31, 1994 and August 31, 1995; and (ii) with respect to API: the independent auditor's report, dated August 15, 1995, audited balance sheets, income statements, statements of cash flow, statement of retained earnings, notes to the financial statements, and operating and selling expenses, as of and for the years ended June 30, 1994 and June 30, 1995; (iii) with respect to EBS: the independent auditor's report, dated August 11, 1995, audited balance sheets, income statements, statements of cash flow, statement of retained earnings, notes to the financial statements, and schedules to financial statements, as of and for the years ended June 30, 1994 and June 30, 1995; (iv) with respect to MSI: the independent auditor's report, dated November 30, 1995, audited balance sheets, income statements, statements of cash flow, statement of retained earnings, and notes to the financial statements, as of and for the years ended June 30, 1994 and June 30, 1995; such Audited Financial Statements for the separate Sure Grow Companies having been audited by Hughel Goodgame & Associates or Ellis & Hirsburg, Certified Public Accountants, as applicable; and (b) "Unaudited Separate Company Financial Statements", which shall mean: (i) with respect to SGS: (A) Unaudited balance sheets, income statements, and statements of cash flow as of and for the period from September 1, 1995, through the end of the month immediately prior to Closing Date; and (B) Unaudited balance sheets, income statements, statements of cash flow and statements of changes in stockholders' equity as of and for the three months ended November 30, 1995, and for the three and six-month periods ended February 29, 1996, and for the three and nine-month periods ending May 31, 1996; and (C) Unaudited balance sheet, income statement, statement of cash flow and statement of changes in stockholders' equity, as of the Closing Date and for the period from September 1, 1995 through the Closing Date; and (D) Unaudited balance sheets, income state ments, statements of cash flow and statements of changes in stockholders' equity as of and for each of the fiscal quarter ends in the two-year period ended August 31, 1995; and (ii) with respect to MSI, EBS and API separate unaudited financial statements for each of the respective companies consisting of: (A) Unaudited balance sheets, income statements, and statements of cash flow as of and for the period from July 1, 1995, through the end of the month immediately prior to Closing Date; and (B) Unaudited balance sheets, income statements, statements of cash flow and statements of changes in stockholders' equity as of and for the quarter ended September 30, 1995, and for the three and six-month periods ended December 31, 1995, and for the three and nine-month periods ended March 31, 1996; and (C) Unaudited balance sheets, income statements, statements of cash flow and statements of retained earnings as of the Closing Date and for the period from July 1, 1995 through the Closing Date; and (D) Unaudited balance sheets, income statements, statements of cash flow and statements of retained earnings, as of and for each of the fiscal quarter ends in the two-year period ended June 30, 1995; and (c) (i) "Audited Combined Financial Statements", which shall mean combined financial statements, together with the independent auditor's report, resulting from the combining of the Audited Separate Company Financial Statements as described in Section 1.40(a) for (A) the year ending August 31, 1995, and (B) the year ending August 31, 1994; Such Audited Combined Financial Statements shall be combined on the basis of fiscal years ending August 31 (i.e., June 30 balances will be combined with the August 31 balances). Such financial statements shall be designated as "Financial Statements for the Sure Grow Companies" as of and for the years ended August 31, 1995, and August 31, 1994, respectively, and are to be prepared in accordance with GAAP and Regulations SX and SK, with appropriate elimination of intercompany and related party transactions made, and shall be audited and opined on in accordance with GAAS by Hughel Goodgame & Associates; and (ii) "Unaudited Quarterly Cmbined Financial Statements", which shall mean unaudited combined financial statements resulting from the combining of the Unaudited Separate Company Financial Statements described in Section 1.40(b)(i)(B) and (D) and 1.40(b)(ii)(B) and (D) for the applicable corresponding quarter and period ends (for example, the MSI, API and EBS financial data for the quarter and period ending September 30, 1994, will be combined with the SGS financial data for the quarter and period ending November 30, 1994). Such combined Unaudited Quarterly Combined Financial Statements shall be prepared on a basis consistent with GAAP and Regulations SK and SX with appropriate elimination and accounting for intercompany and related party transactions. 1.41 "Foundation Seed" means the direct progeny of Breeder Seed and Foundation Seed of the Sure Grow Companies so handled as to most nearly maintain specific genetic identity and purity under conditions designated by the Official Seed Certifying Agency for identification and labeling as Foundation Seed. Foundation Seed includes only such seed as has been produced by or under the supervision of a breeder (a) on the breeding firm's headquarters farm, (b) on a farm organized as an official branch of the headquarters breeding firm with a breeder in charge of such production, or (c) on a farm operated under a contractual agreement with and under the supervision of the originating or sponsoring plant breeder. Foundation Seed may be used for the production of Foundation Seed, Registered Seed, or Certified Seed. 1.42 "GAAP" means generally accepted accounting principles promulgated by the Accounting Principles Board and/or its successor, the Financial Accounting Standards Board. 1.43 "GAAS" means generally accepted auditing standards promulgated by the American Institute of Certified Public Accoun tants, Committee on Auditing Procedure and/or its successors. 1.44 "Governmental Body" means any federal, state, municipal, or other governmental department, court, commission, Board, bureau authority, office, agency, or instrumentality of any nature whatsoever, provided such Governmental Body has jurisdiction over the referenced matter. 1.45 "Hazardous Materials" mean Regulated Material and any other substance which is or reasonably could be detrimental to human health or safety or to the environment, currently listed, defined, designated or classified as hazardous, toxic, radioactive or dangerous, or otherwise regulated, under any Environmental Law, whether by type or by quantity, including any substance containing any such substance as a component in excess of allowable limits under the Environmental Laws. Hazardous Materials include, without limitation, any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste, industrial substance, oil or petroleum or any derivative or by- product thereof, radon, radioactive material, asbestos, asbestos- containing material, urea formaldehyde foam insulation, lead and polychlorinated biphenyl. 1.46 "HSR Act" means the Hart-Scott-Rodino Antitrust Improve ments Act of 1976, as amended from time to time, and the rules and regulations promulgated thereunder. 1.47 "Indemnification Representative" shall have the meaning set forth in Section 8.3. 1.48 "Indemnified Party" shall have the meaning set forth in Sections 8.4 and 8.5. 1.49 "Indemnified Taxes" shall have the meaning set forth in Section 8.1(c). 1.50 "Indemnifying Party" shall have the meaning set forth in Sections 8.4 and 8.5. 1.51 "Intellectual Property" means all trademarks, tradenames, PVPA certificates, pending PVPA applications, and copyrights, if any, relating to the Sure Grow Cotton Planting Seed Business, including but not limited to the subject matter identified more specifically in Schedule 1.51 attached hereto, and including the goodwill of the Sure Grow Cotton Planting Seed Business symbolized by the Intellectual Property, if any, and all claims against any third party for violation of the Sure Grow Companies' rights protected under the PVPA or under other applicable laws or regulations protecting Intellectual Property, and any documents or tangible evidence relating to such claims. 1.52 "Inventory" means all Cotton Germplasm, Breeding Populations, Breeder Seed, Foundation Seed, Registered Seed, and Certified Seed, and any other Cotton Planting Seed owned by the Sure Grow Companies or of which the Sure Grow Companies have the right to acquire ownership, whether harvested or in production, delinted or undelinted, conditioned or unconditioned, bagged or in bulk, and all unused bags, packaging materials, and supplies dedicated to the Sure Grow Cotton Planting Seed Business. 1.53 "Legal Requirement" means any applicable law, statute, ordinance, or regulation of any Governmental Body. 1.54 "License Agreements" mean those certain license agreements listed on Schedule 1.54 and any and all other written license agreements pertaining to Sure Grow Cotton Varieties. 1.55 "Lien" means any recorded mortgage, lien, pledge, charge, security interest, judgment, or other encumbrance in or adverse claim against any asset, tangible or intangible, of the Sure Grow Companies. 1.56 "Marketing" or "To Market" means the entire activity of the Sure Grow Companies of selling Cotton Planting Seed, including but not limited to advertising, promoting, offering for sale, contracting for sale, selling, transporting, distributing, and delivering Cotton Planting Seed. 1.57 "MSI" means Mississippi Seed, Inc., a corporation organized under the laws of the State of Mississippi, with its principal place of business at Tunica, Mississippi. 1.58 "MSI Shareholders" mean those entities or persons listed on Schedule 1.58. 1.59 "NPL" means the National Priorities List under CERCLA. 1.60 "Official Seed Certifying Agency" means, with respect to any particular Cotton Planting Seed, the Governmental Body in the state in which such Cotton Planting Seed is produced that has jurisdiction over the production, classification, and certification of that Cotton Planting Seed. 1.61 "Order" means any written order, injunction, decree or judgment of any Governmental Body. 1.62 "Permits" mean Permits issued by any Governmental Body to the Sure Grow Companies, including, but not limited to, the Permits listed in Schedule 1.62. 1.63 "Permitted Liens and Title Exceptions" mean (a) any Lien for taxes, special assessments, charges, or levies of a Governmental Body not yet due (or (i) which are being contested in good faith by appropriate formal or informal proceedings and or (ii) are in good faith contemplated to be contested within the applicable time period permitted for such a contest and with respect to which reserves or other appropriate provisions are being maintained by the party liable therefor in accordance with GAAP and the enforcement (collection) of which is stayed at all times); and (b) standard ALTA title exceptions; (c) those Liens, title exceptions or other matters set forth in Schedule 1.63; (d) materialmen's, mechanics, carriers, warehouseman's, landlord's, workman's, repairman's, employee's, or other Liens which are not recorded, arising in the ordinary course of business and which would not typically have been discharged on or before the relevant date in the ordinary course of business; (e) Liens against deposits made in the ordinary course of business in connection with worker's compensation, unemployment compensation insurance, social security and other like laws or to secure the performance of leases; and (f) Liens and encumbrances the existence of which do not, individually or in the aggregate, have any material or adverse effect on the value, or in any way interfere with the present or reasonably contemplated use of the property encumbered thereby. 1.64 "Pooling-of-Interests" means that method of accounting prescribed in Accounting Principles Board Opinion No. 16 as issued and amended and interpreted by the APB and its successor entity, the Financial Accounting Standards Board, as well as Regulations SK and SX promulgated by the Securities and Exchange Commission. 1.65 "Production" or "To Produce", when used in connection with Cotton Planting Seed, means all activities (including harvesting and ginning) of the Sure Grow Companies involved in multiplication, propagation, and increase of seed to be used as planting seed in commercial agriculture, which production activities may be carried out directly by the party involved through its own employees or indirectly through growers under contract to the party. 1.66 "PVPA" means the United States Plant Variety Protection Act, 7 USC Sec.2321, et seq, as amended from time to time. 1.67 "Quality Control" means the entire activity of maintain ing, testing, and verifying the purity, germination, viability and other qualities of Cotton Planting Seed conducted by the Sure Grow Companies. 1.68 "RCRA" means the Resource Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments thereto), as amended from time to time. 1.69 "Real Property" means certain real property, including the land and buildings, facilities, structures, and improvements thereon, located in Cherokee County, Alabama, Maricopa County, Arizona, and Tunica County and Bolivar County, Mississippi, more particularly described in Schedule 1.69-A but excluding that certain real property described on Schedule 1.69-B. Notwithstanding the foregoing, any item of real property not described in Schedule 1.69- B that presently is owned by and/or being regularly used by the Sure Grow Companies in the Sure Grow Cotton Planting Seed Business shall be included in Real Property. 1.70 "Registered Seed" means the direct progeny of Breeder Seed or Foundation Seed which has been so produced and handled by the Sure Grow Companies or persons under contract with the Sure Grow Companies as to maintain genetic identity and purity as required by the Official Seed Certifying Agency for identification, labeling, and sale as Registered Seed. 1.71 "Regulated Material" means any hazardous substance, as defined by Section 101(14) of CERCLA, that is subject to regulation under any applicable Environmental Law. 1.72 "Release" shall have the meaning given that term by Section 101(22) of CERCLA. 1.73 "Research" means all forms of inquiry, study, investiga tion, observation, and experimentation, including genetic modifica tion and manipulation. 1.74 "SEC" means the Securities and Exchange Commission, an agency of the United States. 1.75 "SGS" means Sure Grow Seed, Inc., a corporation organized under the laws of the State of Alabama, with its principal place of business at Centre, Alabama. 1.76 "SGS Shareholders" mean those entities or persons listed on Schedule 1.76. 1.77 "Storing" or "To Store" means the activity of the Sure Grow Companies in the handling and storing of Cotton seed in bulk prior to Delinting and Conditioning. 1.78 "Sure Grow Affiliated Assets" mean those other assets, tangible or intangible, if any, regularly used in the Sure Grow Cotton Planting Seed Business, which are not owned by any of the Sure Grow Companies (including, without limitation, those assets, if any, owned or controlled by Sure Grow Research and Associates or Sure Grow Research & Development Company, a partnership), all of which are listed on Schedule 1.78-A, but excluding those items listed on Schedule 1.78-B. 1.79 "Sure Grow Companies" mean each and every one of SGS, API, EBS and MSI, separately and collectively. 1.80 "Sure Grow Cotton Planting Seed Business" means the entire activity of the Sure Grow Companies in Research, Breeding, Production, Storing, Delinting, Conditioning, Quality Control, Warehousing and Marketing of Cotton Planting Seed and of licensing other persons to produce, store, delint, condition, warehouse and market Cotton Planting Seed and all tangible and intangible assets owned by one or more of the Sure Grow Companies and/or any other assets, if any, regularly used in or related to such business activities, including, without limitation, production, delinting, conditioning and storage facilities, research equipment, Cotton Germplasm and Breeding Populations, Breeder Seed, Foundation Seed, Registered Seed, Certified Seed, and other Cotton Planting Seed, breeding rights, research data and documents, trade secrets, seed technology, licensing agreements, royalty agreements, and all other legal and contractual rights relating to Sure Grow's Cotton Planting Seed Business, and without limiting the generality of the foregoing, specifically including the following: the Real Property, Equipment, Inventory, Intellectual Property, License Agreements, Contracts, and Books and Records, and assets regularly used in the commercial ginning operation, the retail farm supply operation and the soybean processing plant of EBS. 1.81 "Sure Grow Cotton Varieties" mean all varieties or cultivars of Cotton, including, but not limited to, the varieties listed in Schedule 1.81, seed of which the Sure Grow Companies marketed in 1995 and/or 1996 in which the Sure Grow Companies have proprietary rights, and further including, without limitation, all varieties or cultivars with respect to which the Sure Grow Companies hold or have applied for PVPA certificates or certificates issued under similar laws of other nations. 1.82 "Sure Grow Principals" mean, collectively, Richard Flowers and D. C. ("Dutch") Parker, each an adult resident citizen of Tunica County, Mississippi. 1.83 "Sure Grow's Products Liability" shall mean any actual liability to which the Sure Grow Companies (or the D&PL Companies, or their successors or assigns, as successors to the Sure Grow Cotton Planting Seed Business) may become subject insofar as such liability arises out of or otherwise relates to any express or implied representation, warranty, agreement or guaranty to a customer, user, or purchaser made or claimed to have been made by the Sure Grow Companies or an employee with apparent authority of the Sure Grow Companies, or arising out of or due to, or asserted to be arising out of negligence, strict liability or other rule of law in connection with Producing, Delinting, Conditioning, Storing or Marketing of such product by the Sure Grow Companies prior to the Closing Date. 1.84 "Sure Grow Shareholders" mean, collectively, the API Shareholders, the EBS Shareholders and the MSI Shareholders. 1.85 "Tax Contest" shall have the meaning set forth in Section 8.1(d). 1.86 "Taxes" mean, solely with regard to the Sure Grow Companies, all taxes, charges, fees, levies, penalties or other assessments imposed by any United States federal, state, local or foreign taxing authority with applicable jurisdiction, including, but not limited to, income, excise, property, sales, transfer, franchise, payroll, gains, withholding, ad valorem, social security or other taxes, including any interest, penalties or additions attributable and actually and finally paid with respect to Taxes. Notwithstanding the foregoing, Taxes shall not include any tax, interest or penalties, incurred as a result of: (a) any action or inaction of the Sure Grow Companies or the D&PL entities after the Closing Date, including, without limitation, any subsequent merger or any other type of combination which is not a part of this Transaction; (b) any election or deemed election under any section of the Code or applicable state, local or other Tax laws and regula tions applicable to the type of Taxes referred to above in this Section; or (c) any other matter which would result in Taxes attributable to periods after the Closing Date. 1.87 "Tax Returns" shall mean any returns, reports, declara tions, forms, claims for refund or information returns or statements related to Taxes, including any schedule or attachment thereto, and including any amendments thereof. 1.88 "Transaction" means the entire transaction between the Parties hereto contemplated by this Agreement in which all sharehold ers of API, EBS and MSI will exchange all of the issued and outstanding stock of API, EBS and MSI for certain D&PL Common Stock, and D&PL1, D&PL2 and D&PL3 will be merged into API, EBS and MSI, respectively, as more particularly described in Article 2 hereof. 1.89 "Transaction Costs" means the total of the reasonable out- of-pocket expenses, (including, but not limited to, attorney's fees, accountant's fees and other reasonable costs and expenses) directly related to this Transaction, or the negotiations prior thereto, and the actions taken in connection herewith, and which are expended and/or incurred by the Sure Grow Companies, the Sure Grow Shareholders and/or the Sure Grow Principals commencing on January 10, 1996, and continuing through the execution of this Agreement on Closing Date, provided that, the foregoing notwithstanding, expenses incurred pursuant to Section 4.3 shall not be considered to be Transaction Costs. 1.90 "Warehousing" or "To Warehouse" means, with respect to Cotton Planting Seed, the activity of handling and storing of bulk undelinted cotton seed and bagged Cotton Planting Seed after Delinting, Conditioning and bagging. ARTICLE 2. PLAN OF REORGANIZATION 2.1 Plan of Reorganization. Subject to satisfaction of the Conditions Precedent, and on the terms and conditions set forth in this Agreement, as of the time of the closing on the Closing Date: (a) D&PL1, D&PL2 and D&PL3 shall be merged with and into API, EBS and MSI, respectively; (b) API, EBS and MSI, respectively, shall be the surviving corporations in the aforementioned mergers; (c) the separate corporate existence of API, EBS and MSI shall continue unaffected by the merger; and (d) at Closing, D&PL1 and API, D&PL2 and EBS and D&PL3 and MSI shall each execute a Certificate of Merger in substantially the form attached hereto as Schedule 2.1(d). The applicable Certifi cate of Merger shall be promptly filed with the Secretary of State in the state of incorporation of each corporation which is a participant in the Merger and wherever else may be required to formalize the aforementioned mergers as contemplated in this Agreement. 2.2 Merger, Consideration and Conversion or Cancellation of Shares. (a) At the time of the closing on Closing Date, the stock of API, EBS and MSI shall, by virtue of the merger and without action on part of the holder thereof, be converted into the right to receive One Million Five Hundred Forty-Eight Thousand Four Hundred Eighty-Three (1,548,483) shares of D&PL Common Stock (the "Consideration"); provided, further, that the D&PL Common Stock constituting the Consideration shall be allocated among the Sure Grow Shareholders as set forth in the Schedule attached hereto as Schedule 2.2(a), provided, however, that no fractional shares shall be issued and, in the event that the proportions of interest set forth in Schedule 2.2(a) might otherwise result in the issuance of a fractional share of D&PL Common Stock, the number of shares of D&PL Common Stock to be issued to the affected shareholder(s) shall be rounded up or down to the nearest whole share, as the case may be; (b) All such shares to be converted into D&PL Common Stock pursuant to Section 2.2(a) shall, by virtue of the mergers and without any action on the part of the holders thereof, cease to be outstanding, be cancelled and cease to exist, and each holder of a certificate representing such shares shall cease to have any rights with respect thereto, except the right to receive for such shares, upon surrender of the certificate, in accordance with Section 2.3, the amount of D&PL Common Stock allocated to such holder under Section 2.2(a); (c) Each share of common stock of each of D&PL1, D&PL2 and D&PL3 issued and outstanding immediately before the closing shall, by virtue of the mergers and without any action on part of the D&PL Subs, or the holder thereof, be converted into the same number of shares of common stock of the surviving corporation with and into which it was merged. Upon surrender of such certificates to the surviving corpora tions, new certificates representing shares of voting common stock of the surviving corporations shall be issued to D&PL; and (d) On or before Closing Date, D&PL have deposited or shall transmit for deposit with Escrow Holder, as exchange agent, for the benefit of the holders of stock that will be converted into D&PL Common Stock pursuant to Section 2.2(a), a sufficient number of certificates representing D&PL Common Stock required to effect the delivery of the aggregate Consideration. Upon receipt of the share certificates to be transmitted and upon receipt by Escrow Agent of the issuance notice provided for in the Irrevocable Instructions to exchange agent attached as Schedule 2.2(d) and subject to the provisions of Section 8.6 requiring the retention of stock in escrow, the Escrow Holder, as exchange agent, shall deliver the D&PL Common Stock contemplated to be issued pursuant to Section 2.2(a) out of this fund and pursuant to Irrevocable Instructions to exchange agent in the form attached as Schedule 2.2(d). 2.3 Deposit and Endorsement of Certificates. At closing on Closing Date, each Sure Grow Shareholder shall deliver to D&PL in exchange for D&PL Common Stock to be issued pursuant to Section 2.2(a), certificates representing all shares of stock of the Sure Grow Companies held by such Sure Grow Shareholder. Each certificate for shares of stock of API, EBS, and MSI which is surrendered for exchange has been properly endorsed and otherwise in a proper form for transfer and the Sure Grow Shareholder requesting such exchange has either (i) affixed any requisite stock transfer stamps to the certificates surren dered, or (ii) provided funds for their purchase, or (iii) established to the reasonable satisfaction of D&PL, that such stock transfer stamps are not due and payable. 2.4 Corporate Actions at Closing. (a) Effective upon closing on Closing Date, all members of the respective Boards of Directors of the Sure Grow Companies and all officers thereof as shown on Schedule 2.4(a)-A shall resign their positions and shall deliver to the D&PL Companies written confirmation of their resignations in the form attached as Schedule 2.4(a)-B. The foregoing notwithstanding, the particular officers of the Sure Grow Companies identified in Schedule 2.4(a)-C will be elected, effective immediately after closing, except in the case of such persons who are Sure Grow Shareholders whose election to such offices shall be effective immediately after the issuance of the D&PL Common Stock by the Escrow Agent to the Sure Grow Shareholders, to the corporate offices set forth on Schedule 2.4(a)-C. (b) Effective immediately after closing, D&PL, as sole direct or indirect stockholder of API, EBS, MSI and SGS, the surviving corporations, shall elect or cause to be elected persons of its choosing to be elected as directors of each of the Sure Grow Companies and may, subject to the provisions of Section 2.4(a), cause certain additional persons of its choosing to be elected as officers of the Sure Grow Companies. 2.5 Restriction on Transfer of D&PL Common Stock. (a) The D&PL Common Stock constituting Consideration acquired by the Sure Grow Shareholders, as a result of the Transaction, shall not be transferable by the Sure Grow Shareholders until it is registered by D&PL with the SEC under the Securities Act of 1933 as amended ("the Act") unless: (i) the transferring Sure Grow Sharehold er(s) has furnished D&PL with an opinion of counsel reasonably acceptable to D&PL that such transfer is exempt from the require ments of registration, or (ii) such transfer(s) is made after the passage of two (2) years following the Closing Date and satisfies any conditions set forth in the Rule 144 Memorandum drafted by Sam D. Chafetz, Esq., dated May 1, 1996, attached as Schedule 2.5- A, provided that such conditions set forth in said Memorandum remain applicable under then existing applicable laws and regulations upon expiration of such two (2) year period. All certificates representing D&PL Common Stock issued to the Sure Grow Shareholders, and any additional, reissued or replacement certificates subsequently issued with respect thereto, prior to the registration, shall bear such legends as set forth on Schedule 2.5-B to indicate such restrictions on transferability. D&PL shall use its best efforts to file a shelf Registration Statement under the Act with the SEC with respect to the sale and/or resale of such stock on the earliest practical date after September 1, 1996, after audited combined financial statements for the fiscal year ending August 31, 1996, are available and on which D&PL can file such a Registration Statement under the then applicable laws and rules of the SEC. Except as provided in Section 4.4 and Section 5.7, the costs of preparing, filing, printing and delivering such Registration Statement shall be borne by D&PL. Except for registration shares to be issued pursuant to any D&PL employee benefit plan, D&PL shall not, without the prior written consent of a majority in interest of the Sure Grow Shareholders, file a registration statement for the sale of any other stock of D&PL of any class prior to filing the registration statement for sale and/or resale of the D&PL Common Stock to be conveyed to the Sure Grow Shareholders pursuant to this Agreement, provided, however, D&PL shall be allowed to simultaneously register for sale other common stock of D&PL with the registration for sale of the D&PL Common Stock conveyed to Sure Grow Shareholders. ARTICLE 3. CONDITIONS PRECEDENT TO CLOSING 3.1 Conditions Precedent to Participation by the D&PL Companies in Closing. (a) The obligations of the D&PL Companies to close the Transaction described in Article 2 are subject to the fulfillment, upon execution of this Agreement on the Closing Date, of each of the conditions described in Subsections 3.1(a)(i) through 3.1(a)(viii) (or written waiver thereof by the D&PL Companies), to-wit: (i) All representations and warranties of the Sure Grow Companies and the Sure Grow Shareholders contained in this Agreement shall be true in all material respects at and as of the Closing Date and the Sure Grow Companies, the Sure Grow Shareholders, and the Sure Grow Principals shall have performed and complied with, in all material respects, the obligations under this Agreement which are to be performed or complied with by them under this Agreement prior to or on the Closing Date. (ii) As of the Closing Date, (A) none of the Sure Grow Companies and/or the Sure Grow Shareholders shall have taken (or agreed to take) any action identified in the letters, the forms of which are attached as Schedule 3.1(a)(ii)-A, 3.1(a)(ii)- B, and 3.1(a)(ii)-C, which causes Arthur Andersen LLP not to be able to deliver its written opinion in the form attached as Schedule 3.1(a)(ii)-D that, as of the Closing Date, there exists no impediment to the Transaction being accounted for as a Pooling- of-Interests under GAAP, unless Arthur Andersen LLP shall have delivered a prior written confirmation that such proposed action or proposed failure to act would not result in Arthur Andersen LLP's inability to deliver its opinion stating that it would still be proper to account for the Transaction as a Pooling-of- Interests, it being stipulated that the terms and conditions of this Agreement and matters expressly set forth in this Agreement and its Schedules, including, but not limited to, the actions identified in Schedule 3.1(a)(ii)-E have been disclosed to Arthur Andersen LLP and do not constitute such an impediment and (B) on the Closing Date, the API Shareholders shall have executed and delivered to Arthur Andersen LLP a representation letter in the form attached as Schedule 3.1(a)(ii)-A, the EBS Shareholders shall have executed and delivered to Arthur Andersen LLP a representation letter in the form attached as Schedule 3.1(a)(ii)- B, and the MSI Shareholders shall have executed and delivered to Arthur Andersen LLP a representation letter in the form attached as Schedule 3.1(a)(ii)-C, and Arthur Andersen LLP shall have issued its written opinion in the form attached as Schedule 3.1(a)(ii)-D, at and as of the Closing Date and based upon such representation letters, that the Transaction shall be treated as a Pooling-of-Interests in conformity with GAAP. (iii) At or before closing of the Transaction on the Closing Date, (a) each of those certain Sure Grow Shareholders and other key Employees of the Sure Grow Companies, whose names are listed on Schedule 3.1(a)(iii)-A, shall have entered into a contract with one or more of the Sure Grow Companies or the D&PL Companies, effective before or on the Closing Date, in the forms set forth as Schedules 3.1(a)(iii)-B through F, inclusive, and (b) each of the Sure Grow Shareholders not listed on Schedule 3.1(a) (iii)-A and each of the Sure Grow Principals shall have entered into a contract with the Sure Grow Companies and D&PL, effective before or on the Closing Date, in the form set forth as Schedule 3.1(a)(iii)-G. (iv) No environmental condition exists, and no event has occurred, at any of the Real Property which is not disclosed in the Environmental Site Assessment Report(s) which would, after Closing Date, materially and adversely affect the D&PL Companies or any of the Sure Grow Companies (as may be in existence after the Closing Date). For purposes of this Section 3.1(a)(iv) only, an environmental condition or event shall be deemed to have a material and adverse effect if, in the judgment of a licensed environmental engineer mutually selected by the D&PL Companies and the Sure Grow Companies (or if they cannot agree, as determined by a committee of three licensed environmental engineers, one selected by D&PL Companies, one selected by the Sure Grow Companies, and the third selected by the first two (2) such engineers), reasonably exer cised, there is a risk of liability under applicable Environmental Laws to any D&PL Company or any Sure Grow Company of One Million Dollars ($1,000,000.00) or more. Any provisions of this Article notwithstanding, closing of the Transaction shall not constitute a waiver by the D&PL Companies of any claims for indemnity under Article 8 with respect to Environmental Claims. (v) On or before the Closing Date, the Sure Grow Companies have delivered to D&PL all of the Financial Statements described in Section 1.40(a), Section 1.40(b)(i)(A), and Section 1.40(b)(ii)(A). (vi) D&PL Companies shall have received a written opinion of counsel, selected by D&PL, addressed to the D&PL Companies that, at and as of the Closing Date and based on the representations and warranties made by the Sure Grow Companies and the Sure Grow Shareholders in Section 7.29, no filing is required under the HSR Act with respect to the Transaction. (vii) There is no pending injunction, order, judgment or civil action prohibiting, restricting or placing conditions upon (or seeking to prohibit, restrain or place conditions upon the Transaction), provided, however, that none of the D&PL Companies shall have the right to give notice pursuant to Section 3.1(b) because of any injunction, order, judgment or civil action procured or initiated by one or more of the D&PL Companies. (viii) This Agreement has not been terminated as provided in Article 10. (b) In the event that the D&PL Companies, in their judgment reasonably exercised in good faith, determine that any one or more of the Conditions Precedent set forth in Section 3.1(a) have not been fulfilled as of the Closing Date unless the Parties, through their Authorized Representatives, mutually agree in writing to set a subsequent date as the new Closing Date, the D&PL Compa nies, or any one of them, may, by written notice to each of the other Parties to this Agreement, cancel the closing and thereupon all Parties shall be released from all obligations under this Agree ment. 3.2 Conditions Precedent to Participation by Sure Grow Companies and Sure Grow Shareholders in Closing. (a) The obligations of the Sure Grow Companies and Sure Grow Shareholders to close the Transaction described in Article 2 are subject to the fulfillment, upon execution of this Agreement on the Closing Date, of each of the conditions described in Subsec tions 3.2(a)(i) through 3.2(a)(v) (or written waiver thereof by the Sure Grow Companies and the Sure Grow Shareholders), to-wit: (i) All representations and warranties of the D&PL Companies contained in this Agreement shall be true in all material respects at and as of the Closing Date and the D&PL Companies shall have performed and complied with, in all material respects, their obligations under this Agreement which are to be performed or complied with by them prior to or on the Closing Date. (ii) Those persons listed on Schedule 3.1(a)(iii)-A shall have been offered employment agreements in the forms attached as Schedules 3.1(a)(iii)-B through F, inclusive. (iii) Sure Grow Companies shall have received a written opinion of counsel, selected by the Sure Grow Companies, addressed to the Sure Grow Companies and the Sure Grow Sharehold ers, that, at and as of the Closing Date and based on the represen tations and warranties made by the Sure Grow Companies and the Sure Grow Shareholders in Section 7.29, no filing is required under the HSR Act with respect to the Transaction. (iv) There is no pending injunction, order, judgment or civil action prohibiting, restricting or placing conditions upon (or seeking to prohibit, restrain or place conditions upon the Transaction), provided, however, that none of the Sure Grow Companies and/or the Sure Grow Shareholders shall have the right to give notice pursuant to Section 3.2(b) because of any injunction, order, judgment or civil action procured or initiated by one or more of the Sure Grow Companies and/or the Sure Grow Shareholders. (v) This Agreement has not been terminated as provided in Article 10. (b) In the event that the Sure Grow Companies and/or the Sure Grow Shareholders, in their judgment reasonably exercised in good faith, determine that any one or more of Conditions Precedent set forth in Section 3.2(a) have not been fulfilled as of the Closing Date unless the Parties, through their Authorized Represen tatives, have mutually agreed in writing to set a subsequent date as a new Closing Date, the Sure Grow Companies and/or the Sure Grow Shareholders, or any one of them, may, by written notice to each of the other Parties to this Agreement, cancel the closing and thereupon all Parties shall be released from all obligations under this Agreement. 3.3 Payment of Transaction Costs. In the event that this Agreement is executed but that, upon the Closing Date, all Conditions Precedent to participation by the D&PL Companies in closing, as contained in Section 3.1(a) above, are satisfied and in such event that performance of this Agreement is tendered by the Sure Grow Companies and the Sure Grow Shareholders and the D&PL Companies fail or refuse to consummate the Transaction through no fault of the Sure Grow Companies and/or the Sure Grow Shareholders, then, as liquidated damages, the D&PL Companies shall fully reimburse the Sure Grow Companies, the Sure Grow Principals and the Sure Grow Shareholders in an amount equal to the Transaction Costs. ARTICLE 4. PRE-CLOSING ACTIVITIES 4.1 Operation of Sure Grow Companies' Businesses. Except as disclosed on Schedule 4.1, through Closing Date, the Sure Grow Companies shall have used their good faith reasonable efforts to preserve their properties, businesses and relationships with customers, employees and other persons; and, specifically, except consistent with prior ordinary business practices or except with the prior written consent of D&PL, between the last day of the respective fiscal years of each of the Sure Grow Companies (which date was June 30, 1995, with respect to API, EBS and MSI, and August 31, 1995, with respect to SGS) and closing on Closing Date, none of the Sure Grow Companies shall have: (a) carried on its business other than in the usual and ordinary course in substantially the same manner as heretofore conducted; (b) declared, set aside, made or paid any dividend or other distribution with respect to its capital stock; (c) issued, sold, redeemed, repurchased or delivered any shares of its capital stock or permitted any treasury shares to become outstanding; (d) effected any recapitalization, reclassification, stock dividends, stock split or like change in capitalization or issued or sold any options or warrants to purchase or rights to subscribe to any shares of its capital stock; (e) amended its Certificate or Articles of Incorporation or By-Laws; (f) merged with any other corporation or permitted any other corporation to merge into it or consolidate with any other corporation; (g) acquired control over any other firm, corporation, or organization or created any subsidiary; (h) failed to comply in any material respect with any Legal Requirements applicable to it or the conduct of its business which failure would have a material adverse effect on the opera tions of the Sure Grow Companies; (i) waived or released any material right or claim or cancelled or compromised any material debt or claim; (j) liquidated or sold or disposed of any assets (other than in the ordinary course of business) or acquired any assets (other than in the ordinary course of business or as expressly required by Section 4.5) provided, however, that EBS shall have, prior to closing, conveyed to Bert Shattuck Ellis that certain real estate located in Cherokee County, Alabama, and more particularly described on Schedule 1.69-B, the record title to which had appeared to be in EBS but the equitable title to which had been vested in Bert Shattuck Ellis and provided further that EBS shall have, prior to closing, conveyed to W. A. Ellis, III, an easement as more particularly described on Schedule 3.1(a)(ii)-E; (k) established any new branches or similar facilities or entered into or modified any leases or other contracts relating thereto; (l) increased or agreed to increase the rate of compensa tion or pay to any officer, director, other Employee or independent contractor or paid or agreed to pay or provide any bonus or other benefit or incentives to any of its directors, officers or other Employees or independent contractors, other than bonuses and/or compensation increases as set forth on Schedule 4.1(l); (m) entered into, modified or extended any employment, collective bargaining or other contracts or agreements with any of its present or former officers or directors or other Employees (other than as required by Section 3.1(a)(iii)-A); (n) entered into (except as may be required by applica ble law) any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance incentive, or trust, plan, arrangement or contract related thereto with respect to any of its officers, directors or other Employees other than in this Agreement or in the Schedules thereto; (o) changed its borrowing, investment, asset/liability management or other material business practices (except as required by changes in applicable law); (p) changed its methods of accounting (except as required to conform to GAAP) or changed any of its methods of reporting income or deductions for federal or state income tax purposes, (except as required by changes in law or as required in connection with the Transaction); (q) taken any action or entered into any agreement to take any action identified in Schedules 3.1(a)(ii)-A, 3.1(a)(ii)-B or 3.1(a)(ii)-C which may cause Arthur Andersen LLP not to be able to deliver its opinion in the form attached as Schedule 3.1(a)(ii)- D that, as of the Closing Date, there exists no impediment to the Transaction being accounted for as a Pooling-of-Interests under GAAP, unless Arthur Andersen LLP shall have delivered a prior written confirmation that such proposed action or proposed failure to act will not result in Arthur Andersen LLP's inability to deliver its opinion stating that it would still be proper to account for the Transaction as a Pooling-of-Interests, it being stipulated that the terms and conditions of this Agreement and matters expressly set forth in this Agreement and its Schedules, including, but not limited to the actions identified in Schedule 3.1(a)(ii)-E have been disclosed to Arthur Andersen LLP and do not constitute such an impediment; and (r) agreed to do any of the foregoing (except as may be required by applicable law or judicial or administrative order). 4.2 Access to Property and Records; Confidentiality. During a period beginning at least fourteen (14) days prior to the Closing Date, upon reasonable written notice, during ordinary business hours and subject to applicable laws relating to exchange of information, the Sure Grow Companies have permitted the D&PL Companies and those of their representatives, agents, and indepen dent contractors who have agreed (in writing with a copy to the Sure Grow Companies) to be bound by the Confidentiality Agreement as if original parties thereto, reasonable access to the assets of the Sure Grow Companies and have disclosed and made available to the D&PL Companies all books, papers and records relating to assets, stock, ownership, properties, operations, obligations and liabilities of the Sure Grow Companies, including, but not limited to, all books of account (including the general ledger), tax records (including tax returns of the Sure Grow Companies and schedules thereof), minute books of directors and stockholders' meetings, organizational documents, By-Laws, contracts, license agreements, filings, and correspondence with and written notices or other documents from, any Governmental Body. Prior to closing, the Sure Grow Companies and/or the Sure Grow Shareholders shall not have been required to provide access to or disclose information where such access or disclosure would jeopardize the attor ney/client privilege of the Sure Grow Companies and/or the Sure Grow Shareholders (except where the subject of the communication is material to the Cotton Planting Seed Business of the Sure Grow Companies and could reasonably be expected to materially impact D&PL Companies' operation of the Sure Grow Companies after closing of the Transaction) or would contravene any law, rule, regulation, judgment, decree or order of any Governmental Body which is applicable to any of the Sure Grow Companies; provided, however, that the foregoing notwithstanding, during the due diligence examination prior to Closing Date, D&PL shall not have had any access whatsoever to: (i) plans affecting Employees or the business activities or prospects of the Sure Grow Companies, or (ii) the Sure Grow Cotton Varieties or the Sure Grow Companies' Cotton Germplasm and Breeding Populations in the development stage and all notes, books, and any other records pertaining thereto, but provided further that the Sure Grow Companies, and the Sure Grow Shareholders personally, warrant and guarantee that upon consumma tion of the Transaction on the Closing Date all Cotton Germplasm and Breeding Populations which were in the possession or control of breeders working for the Sure Grow Companies as of August 18, 1995, the progeny thereof, and all notes, books, and any other records pertaining thereto, will be exclusively in the possession of the Sure Grow Companies surviving the Transaction as contemplated in Article 2 and that, to the best of their knowledge, no such Cotton Germplasm or Breeding Populations have been delivered to or retained by any person or entity other than authorized Employees of the Sure Grow Companies, in their capacity as such. The Confidenti ality Agreement shall apply to all documents and other information exchanged pursuant to this Section, the provisions of which Confidentiality Agreement shall survive the closing of the Transaction or the cancellation of this Agreement, whichever may occur. The D&PL Companies and its representatives have conducted such investigations in a manner not to unreasonably interfere with the normal operations of the Sure Grow Companies. 4.3 Environmental Conditions and Title. (a) Environmental Site Assessments. During a period of not less than fourteen (14) days prior to the Closing Date, the Sure Grow Companies shall have permitted D&PL Companies and/or their consultants reasonable non-disruptive access during normal business hours and upon at least twenty-four (24) hours prior written notice (i) to all environmental records of the Sure Grow Companies pertaining to the Real Property (excluding those protected by attorney/client privilege unless such records contain information which has or could reasonably in good faith be construed to have a material adverse effect on the Sure Grow Cotton Planting Seed Business), (ii) to the Real Property to perform site assessments, and (iii) to any Employee of the Sure Grow Companies to ascertain compliance with Environmental Laws. The D&PL Companies have provided the Sure Grow Companies with copies of the Environmental Site Assessment Reports and a copy of any other environmental report, if any, created as the result of the D&PL Companies' investigation of the Sure Grow Cotton Planting Seed Business or the Real Property immediately upon receipt by the D&PL Companies and prior to the Closing Date (excluding documents protected by attorney/client privilege). (b) Title Commitments. Not less than fourteen (14) days prior to Closing Date, the Sure Grow Companies have, at their expense, provided to D&PL Companies commitments for an owner's title insurance policy (or a leasehold policy in the case of API) in the name of the Sure Grow Companies, subject to standard ALTA exceptions and other Permitted Liens and Title Exceptions described in Section 1.63, for the reasonable and estimated fair market value of each tract of Real Property as set forth on Schedule 4.3(b). (c) Cure of Title Exceptions. The Sure Grow Sharehold ers, at their sole expense and not at the expense of the Sure Grow Companies, have caused any exception to the title of any of the Real Property, other than Permitted Liens and Title Exceptions, to be bonded or insured against, or cleared or released and removed as exceptions to the applicable title commitment. Any such curative actions began as soon as practical after receipt by the Sure Grow Companies of the relevant title commitment and have continued without interruption until the matter was cured. (d) Pre-Closing Casualty Damage. The Sure Grow Companies have notified the D&PL Companies in writing of any damage or destruction of any material asset(s) of the Sure Grow Cotton Planting Seed Business by fire, windstorm or other casualty prior to closing on Closing Date, and the Sure Grow Companies have (unless otherwise agreed in writing with the D&PL Companies subsequent to such casualty) commenced the repair or replacement of such assets and continued such repair or replacement without interruption until such repair or replacement was completed, using insurance proceeds and/or other funds of the Sure Grow Companies as may be reasonably necessary. 4.4 Audited and Unaudited Financial Statements. The Sure Grow Shareholders, at the expense of the Sure Grow Companies, have caused the Financial Statements for each of the Sure Grow Companies described in Sections 1.40(a), 1.40(b)(i)(A), and 1.40(b)(ii)(A), all of which are to be delivered upon Closing Date, to be prepared in accordance with GAAP applied on a consistent basis, and with Regulations SK and SX promulgated by the SEC, so that the same are suitable for inclusion in SEC filings for the 1994 and 1995 fiscal years and as needed to meet the requirements of Regulations SK and SX regarding any stub period Financial Statements required in connection with this Transaction or the subsequent registration of the D&PL Common Stock issued to the Sure Grow Shareholders. 4.5 Acquisition of Sure Grow Affiliated Assets. Prior to Closing Date, the Sure Grow Shareholders, at their own expense and not at the expense of the Sure Grow Companies, have caused the Sure Grow Companies to acquire all Sure Grow Affiliated Assets listed on Schedule 1.78-A, free and clear of all liens, encumbrances or obligations (except Permitted Liens and Title Exceptions, if any) which Sure Grow Affiliated Assets shall, after such acquisition, be regarded as assets of the Sure Grow Cotton Planting Seed Business and shall be subject to all terms and conditions of this Agreement which are applicable to the assets of the Sure Grow Cotton Planting Seed Business. ARTICLE 5. POST-CLOSING ACTIVITIES 5.1 Post-Closing Operations. After the Closing Date, the Sure Grow Cotton Planting Seed Business shall be operated as one or more wholly-owned subsidiary(ies) or division(s) of D&PL for a period of not less than five (5) years, with the management personnel described in Schedule 3.1(a)(iii)-A, subject to compli ance with satisfactory performance and normal standards of fiscal responsibility and subject to the terms and conditions of the employment agreements in the forms attached as Schedules 3.1(a) (iii)-B through F, inclusive. As a wholly-owned subsidiary(ies) or division(s) of D&PL, the Sure Grow Cotton Planting Seed Business will be entitled to access all of the technologies pertaining to transgenic or genetically-engineered cotton plants (as well as all other technologies relating to the Cotton Planting Seed business) now owned by or, accessible to D&PL or any of D&PL's wholly-owned subsidiary companies (collectively the "D&PL Entities"), and/or available now or in the future to the D&PL Entities under terms of license agreements with third parties. D&PL will use all reason able efforts to cause transformation of Sure Grow Cotton Varieties to incorporate transgenic technologies as expeditiously as possible to carry out the intent contemplated by this Section 5.1. 5.2 Continued Employment of Senior Management of Sure Grow Companies. The senior management Employees of the Sure Grow Compa nies, whose names are listed on Schedule 3.1(a)(iii)-A, shall be offered employment by one or more of the Sure Grow Companies and/or the D&PL Companies on and after the Closing Date, on the terms and conditions of employment agreements in the forms attached as Schedules 3.1(a)(iii)-B through F, inclusive. Those who accept such offers and continue employment with the Sure Grow Companies and/or the D&PL Companies after closing shall, for the period of such employment, receive annual compensation, including bonuses and participation in D&PL's qualified and/or non-qualified stock option plans, as set forth in their respective employment agreements attached as Schedules 3.1(a)(iii)-B through F, inclusive, and comparable to that paid to persons in similar positions with D&PL and shall be subject to the same employment policies and rules, issued from time to time, applicable to other employees in similar positions with the D&PL Companies. All other employees of the Sure Grow Companies (excluding senior management Employees described above) who continue employment with the D&PL Companies or the Sure Grow Companies shall be subject to the same employment policies and rules, issued from time to time, applicable to other employees in similar positions with the D&PL Companies. This Agreement shall confer no rights upon any such Employees as employees, or the Sure Grow Companies or the D&PL Companies as employers; all rights of any such Employees and employers shall be contained in the said employment agreements attached as Schedules 3.1(a)(iii)-B through F, inclusive, as applicable to the above described senior manage ment employees, or in employment agreements entered into by other Employees and in applicable employment policies and rules of the D&PL Companies. 5.3 Filing of Tax Returns. The Sure Grow Companies will timely file or cause to be filed all federal and state income tax returns that are due after the closing on the Closing Date and that are required to be filed by, or with respect to, the Sure Grow Companies, either separately or as a member of an affiliated or combined group of corporations, for all periods ending on or before the Closing Date in accordance with applicable laws, regulations, and administrative requirements. Subject to the accuracy and completeness of accounting records supplied by the Sure Grow Companies and/or the Sure Grow Sharehold ers and their accountants for periods prior to closing, all such tax returns will be true, correct and complete in all material respects when filed. 5.4 Pooling-of-Interests. The Sure Grow Companies have not, prior to the execution of this Agreement, and shall not, at any time prior to closing, and the Sure Grow Shareholders have not, prior to the execution of this Agreement, and shall not, at any time prior to or subsequent to closing, take (or enter into any agreement to take) any action identified in any of the representa tion letters attached as Schedules 3.1(a)(ii)-A, 3.1(a)(ii)-B, and 3.1(a)(ii)-C, which causes an impediment to the Transaction being accounted for as a Pooling-of-Interests under GAAP, unless Arthur Andersen LLP shall have delivered a prior written opinion that such proposed action or proposed failure to act, or agreement to act or fail to take action, would not result in an impediment to the Transaction being accounted for as a Pooling-of-Interests, it being stipulated that the terms and conditions of this Agreement and matters expressly set forth in this Agreement and its Schedules, including, but not limited to, the actions identified in Schedule 3.1(a)(ii)-E have been disclosed to Arthur Andersen LLP and do not constitute such an impediment. Where the letter representation letters attached as Schedules 3.1(a)(ii)-A, 3.1(a)(ii)-B and 3.1(a)(ii)-C expressly specify a particular time frame, the covenants contained in this Section 5.4 shall apply to the time frame so specified. 5.5 Cure of Environmental Conditions. The Sure Grow Shareholders, at their sole expense and not at the expense of the Sure Grow Companies, shall cause to be remediated each condition pertaining to (a) any of the Real Property or (b) any site at which Hazardous Materials from the Sure Grow Companies' operations have been disposed of (specifically including at the site described in Schedule 7.6(b)), that any of the Environmental Site Assessment Reports shows to be in violation of applicable Environmental Laws, and, without limiting the generality of the foregoing, shall cause to be undertaken and completed the "Required Actions" on the Environmental Action List prepared by Environmental and Safety Designs, Inc., a copy of which is attached as Schedule 5.5, at a total cost not to exceed Five Hundred Thousand and no/100 Dollars ($500,000.00) and in accordance with plans approved by the applicable Governmental Body, and by the D&PL Companies and their representatives (which approval shall not be unreasonably with held). Such remediation actions may, at Sure Grow Shareholders' option, have been commenced prior to the Closing Date and in any event (if not commenced before Closing Date), shall be commenced as soon as practical after the Closing Date and, once commenced, shall continue without interruption until the subject conditions are remediated. Notwithstanding anything contained in this Agreement to the contrary, it is hereby understood and agreed by all Parties that the Sure Grow Shareholders' responsibility hereunder with regard to remediation of conditions shown in the Environmental Site Assessment Reports to be in violation of applicable Environmental Laws and/or shown on the Environmental Action List shall be based upon the minimum remediation acceptable to the applicable Govern mental Body with jurisdiction over such remediation. Notwithstand ing anything in this Agreement to the contrary, any amounts expended by the Sure Grow Shareholders after closing for the purpose of remediation of violation of Environmental Laws shall reduce the amount to remain in escrow pursuant to Section 8.6. 5.6 Cooperation in the Event of Inquiry or Litigation. In the event that any Government Body commences an inquiry or litigation, or any other person commences litigation, concerning the Transaction, each Party shall, at its own expense (except as may be otherwise provided in Section 3.3), cooperate with the other Parties and take all appropriate actions, including preparation of necessary filings, submissions, and responses, to defend the validity of the Transaction. Each Party shall keep the other Parties apprised of its actions with respect thereto and shall, in compliance with applicable laws, cooperate in all reasonable ways to assure the Transaction is sustained. 5.7 Post-Closing Deliveries of Financial Statements. (a) It is contemplated that Hughel Goodgame & Associates or Ellis & Hirsburg, Certified Public Accountants, as applicable, shall deliver to the Sure Grow Companies, at the expense of the Sure Grow Companies, and at their customary hourly rates (not less than $40/hour for Junior, $60/hour for Senior, $80/hour for Manager and $100/hour for Partner), the following Financial Statements on or before the dates set out below: (i) On or before July 1, 1996, those Unaudited Separate Company Financial Statements described in Sections 1.40(b)(i)(B), 1.40(b)(i)(C), 1.40(b)(ii)(B), and 1.40(b)(ii)(C); the Audited Combined Financial Statements described in Section 1.40(c)(i)(A) and the Unaudited Quarterly Combined Financial Statements described in Section 1.40(c)(ii) for the quarter and three and nine-month periods ending May 31, 1996 and May 31, 1995, resulting from the combining of the Unaudited Separate Company Financial Statement for SGS for the quarter and three and nine- month periods ending May 31, 1996 and May 31, 1995, respectively, with the Unaudited Separate Company Financial Statements for API, EBS, and MSI for the quarter and three and nine-month periods ending March 31, 1996 and March 31, 1995, respectively; and (ii) On or before July 31, 1996, those Unaudited Separate Company Financial Statements described in Sections 1.40(b)(i)(D) and 1.40(b)(ii)(D); the Audited Combined Financial Statements described in Section 1.40(c)(i)(B); and all Unaudited Quarterly Combined Financial Statements described in Section 1.40(c)(ii) except those delivered on or before July 1, 1996, pursuant to Section 5.7(a)(i). The Sure Grow Companies shall retain Hughel Goodgame & Associates or Ellis & Hirsburg, Certified Public Accountants, as applicable, to prepare and audit such Financial Statements and the Sure Grow Shareholders shall, at their expense, cooperate when and as requested with the Sure Grow Companies and said accountants in the preparation and auditing of such Financial Statements. (b) It is contemplated that Hughel Goodgame & Associates or Ellis & Hirsburg, Certified Public Accountants, as applicable, shall, at the expense of the Sure Grow Companies, and at their customary hourly rates (not less than $40/hour for Junior, $60/hour for Senior, $80/hour for Manager and $100/hour for Partner), cooperate when and as requested with the D&PL and the Sure Grow Companies and their accountants to prepare and audit on or before September 23, 1996, separate and combined financial statements for the quarters and three and twelve-month periods ending June 30, 1996 for API, EBS and MSI and ending August 31, 1996 for SGS and the combined Sure Grow Companies. The Sure Grow Shareholders shall, at their expense, cooperate when and as requested with the Sure Grow Companies and said accountants in the preparation and auditing of such Financial Statements. (c) In the event that Hughel Goodgame & Associates or Ellis & Hirsburg, Certified Public Accountants, as applicable, do not deliver any of the Financial Statements described in Section 5.7(a) on or before the due dates thereof, and/or do not cooperate with D&PL and the Sure Grow Companies and their accountants as required by Section 5.7(b), time being of the essence, D&PL may, at their sole option, have such Financial Statements prepared and audited by accountants selected by D&PL and the Sure Grow Companies at D&PL's accountants' customary rates for such professional services and, in such event, the Sure Grow Shareholders shall reimburse D&PL and the Sure Grow Companies the costs thus incurred, less an amount equal to reasonably anticipated cost for performance of the same services by Hughel Goodgame & Associates or Ellis & Hirsburg, Certified Public Accountants, as applicable, at the same rates for professional services as such accountants have customari ly charged the Sure Grow Companies prior to Closing Date. (d) After the Closing Date, and subject to timely delivery of Financial Statements, as provided for in Section 5.7(a), and cooperation, as provided for in Section 5.7(b), the Sure Grow Companies and the D&PL Companies will timely publicly release those post-merger combined financial results referenced in Paragraph 6 of Schedules 3.1(a)(ii)-A-C and, contemporaneously with such public release, will provide each of the Sure Grow Sharehold ers with written certification in that such financial results have been publicly released. 5.8 Releases of Personal Guarantees. As soon as reasonably practical after the Closing Date, the Sure Grow Companies and the D&PL Companies will cause all the Sure Grow Shareholders and the Sure Grow Principals to be completely released from any and all personal guarantees or other obligations entered into by the Sure Grow Shareholders and/or Sure Grow Principals in connection with debts or other obligations of the Sure Grow Companies in existence prior to the Closing Date which are listed in Schedule 5.8, including (a) the name of the guarantor, (b) the name and address of the beneficiary of the guarantee, and (c) the current balance of the obligations thus guaranteed. D&PL hereby acknowledges that, immediately after the Closing Date, the Sure Grow Shareholders and Sure Grow Principals intend to give written notification to all applicable parties regarding termination of such guarantees and/or other obligations. SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE D&PL COMPANIES The D&PL Companies represent and warrant to the Sure Grow Companies as of Closing Date, as follows: 6.1 Due Incorporation. (a) D&PL is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. D&PL has full power and authority to own, lease and operate its assets, properties and business and to carry on its business as now conducted, and is fully qualified and in good standing under the laws of Alabama, Arizona and Mississippi. (b) The D&PL Subs are corporations duly organized, validly existing and in good standing under the laws of the State of Delaware. The D&PL Subs have full power and authority to own, lease and operate their assets, properties and business and to carry on their business as now conducted, and are fully qualified and in good standing under the laws of Alabama, Arizona and Mississippi to the extent such qualification and good standing is required to consummate this Transaction. 6.2 Power and Authority of the D&PL Companies; Legal and Authorized Transactions. The D&PL Companies have the full corporate power and authority to enter into, execute and deliver this Agreement and all documents attached hereto and prepared in connection herewith or other such documents reasonably required to complete the transaction contemplated herein and to perform fully their obligations hereunder without, to the best knowledge of the D&PL Companies, the necessity of any act, approval, or consent of any person or entity whatsoever. The execution and delivery of this Agreement and all documents attached hereto and prepared in connection herewith by the D&PL Companies and the consummation of the Transaction contemplated hereby have been duly authorized by all necessary corporate action of the D&PL Companies (including without limitation the approval of the respective shareholders and Boards of Directors of the D&PL Companies). This Agreement, upon due execution and delivery of all documents attached hereto and/or prepared in connection herewith, constitutes the legal, valid and binding obligation of D&PL Companies, enforceable against the D&PL Companies in accordance with the respective terms thereof. All persons who have executed this Agreement and all documents attached hereto and prepared in connection herewith on behalf of the D&PL Companies have been duly authorized to do so by all necessary corporate action. To the best knowledge of the D&PL Companies, no approval, agreement or consent of any Governmental Body, and no approval, agreement, or consent of any other person, is required to be obtained by D&PL Companies in connection with the execution, delivery, consummation and performance by the D&PL Companies of their obligations under this Agreement or any documents attached hereto and prepared in connection herewith. The representations and warranties in this Section 6.2 shall not apply to any approvals which may be required under the HSR Act, with respect to which the Sure Grow Companies and Sure Grow Shareholders agree to rely upon the representations and warranties of Section 7.29 and the opinion of their own counsel described in Section 3.2(a)(iii). 6.3 Capital Stock and Shareholders of the D&PL Companies. (a) The capital stock of D&PL consists of one class of voting common stock of $.10 par value per share and one class of preferred stock of $.10 par value per share. The total number of authorized shares of common stock and preferred stock of D&PL and the total number of issued and outstanding shares of common stock and preferred stock of D&PL, as of the end of D&PL's last fiscal quarter before the date of this Agreement, are set forth in Schedule 6.3(a)-A. There have been no stock splits or stock dividends pertaining to the common stock of D&PL between March 29, 1996 (the record date of most recent stock dividend pertaining to the common stock of D&PL) and Closing Date. Except as disclosed in Schedule 6.3(a)-B, D&PL does not have nor is it bound by any outstanding agreements, options, warrants, calls, commitments, or other rights of any character calling for the sale, purchase or issuance of any shares of D&PL Common Stock, preferred stock, or other securities of D&PL. To the best of D&PL's knowledge, there are no voting trusts, proxies, or other agreements or understand ings with respect to voting of the common stock of D&PL. D&PL has entered into no voting trusts, proxies or other agreements or understandings with respect to voting of the common stock of D&PL. D&PL owns equity interests, directly or indirectly, in the corporat ions, partnerships, limited liability companies, joint ventures, or other entities listed in Schedule 6.3(a)-C. After registration of the D&PL Common Stock, and except as may be expressly provided for in this Agreement and in the Schedules thereto, or as may be required to comply with applicable laws and regulations, there will be no restrictions imposed by D&PL on the transferability of the D&PL Common Stock. (b) The capital stock of each of the D&PL Subs consists of the following stock: D&PL1 has one class of voting common stock of One Dollar ($1.00) par value per share; D&PL2 has one class of voting common stock of One Dollar ($1.00) par value per share; and D&PL3 has one class of voting common stock of One Dollar ($1.00) par value per share. The total number of authorized shares, the total number of issued and outstanding shares, and the name and address of each shareholder and the number of shares held by each shareholder of each of the D&PL Subs is set forth on Schedule 6.3(b). There is no preferred stock of the D&PL Subs nor any other securities of the D&PL Subs. D&PL Subs do not have nor are they bound by any outstanding agreements, options, warrants, calls, commitments, or other rights of any character calling for the sale, purchase or issuance of any shares of the common stock of D&PL Subs. There are no voting trusts, proxies, or other agreements or understandings with respect to voting of the common stock of D&PL Subs. D&PL Subs do not own any equity interest, directly or indirectly, in any other corporation, partnership, limited liability company, joint venture, or other entity. 6.4 No Conflicts. Neither the execution or delivery of this Agreement or any documents attached hereto and prepared in connection herewith nor the consummation of the Transaction contemplated hereby or by any documents attached hereto and/or prepared in connection herewith will: (a) violate or conflict with, or result in any breach of any of the terms, conditions, or provisions of this Agreement, documents attached hereto and/or prepared in connection herewith, or constitute a default under the provisions of the Articles of Incorporation or By-Laws of the D&PL Companies; (b) violate or conflict with any contract, instrument, arrangement, obligation, commitment, understanding, or agreement to which any of the D&PL Companies are parties or by which any property or assets of any of the D&PL Companies are bound; or (c) violate any judgment, order, injunction, decree or award of any Governmental Body or, to the best of the D&PL Companies' knowledge, violate any applicable laws or regulations to which any of the D&PL Companies are subject. The representations and warranties in this Section 6.4 shall not apply to any approvals which may be required under the HSR Act, with respect to which the D&PL Companies agree to rely upon the representations and warranties of Section 7.29 and the opinion of their own counsel described in Section 3.1(a)(vi). 6.5 Full Disclosure. The D&PL Companies have provided, not less than fourteen (14) days before Closing Date, to the Sure Grow Companies copies of, or the opportunity through their authorized representatives to examine upon their request, all of the annual reports on Form 10K, the quarterly reports on Form 10Q, and any 8K's or any amendments thereto since August 31, 1993 pertaining to D&PL and its business and financial affairs. 6.6 Authenticity of Documents. Each document delivered by or on behalf of the D&PL Companies in connection with this Agreement, the negotiations thereof, and the Transaction contemplated hereby is materially true, materially complete and authentic. The written information, including financial information, furnished by or on behalf of the D&PL Companies to the Sure Grow Companies and/or the Sure Grow Shareholders and/or their representatives in connection with this Agreement, the negotiations thereof, and the Transaction contemplated hereby, is materially true and correct and does not intentionally omit any material facts. 6.7 Statements Made. No representation, warranty, statement made or information or data provided by the D&PL Companies in this Agreement or in any Schedule, exhibit, written material, document, magnetic media, books and records or certificate furnished or to be furnished by or on behalf of the D&PL Companies in connection with the Transaction contemplated hereby knowingly contains or knowingly will contain any untrue statement of material fact or knowingly omi ts or knowingly will omit to state a material fact, in light of the circumstances under which it was or will be made, necessary to make the statements contained herein or therein not misleading; notwithstanding the foregoing Schedules and other documents may contain estimates (identified as such) which are made to the subject Parties' best knowledge. 6.8 No Material Adverse Change. Since August 31, 1995, there has not been any material adverse change in the business, condi tion, financial, or otherwise, or results of operations of the D&PL Companies, other than ordinary seasonal variations or as set forth in D&PL's public documents furnished to the Sure Grow Companies and Sure Grow Shareholders. 6.9 No Broker. No broker, finder, agent or similar interme diary has acted for or on behalf of the D&PL Companies in connec tion with this Agreement or the Transaction contemplated hereby, and no broker, finder, agent or similar intermediary is entitled to any broker's, finder's or similar fee or other commission in connection therewith based on any agreement, arrangement or understanding with the D&PL Companies. 6.10 Additional Representations of the D&PL Companies. The D&PL Companies represent, to the best knowledge of the D&PL Companies, that: (a) The fair market value of the D&PL stock and other consideration received by the Sure Grow Shareholders will be approximately equal to the aggregate fair market value of API, MSI and EBS stock surrendered in the Transaction. (b) There is no plan or intention by any of the D&PL Companies to sell, exchange, or otherwise dispose of a number of shares of stock of API, EBS and MSI received in the transaction that would reduce the D&PL Companies' aggregate ownership of stock of API, EBS and MSI to a number of shares having a value, as of the date of the Transaction, of less than fifty percent (50%) of the value of all of the formerly outstanding stock of API, MSI and EBS as of the same date. There will be no shares of D&PL stock exchanged for cash or other property, surrendered by dissenters, or exchanged for cash in lieu of fractional shares of D&PL stock. (c) Following the Transaction, API, MSI and EBS will hold at least ninety percent (90%) of the fair market value of their respective net assets and at least seventy percent (70%) of the fair market value of their respective gross assets and at least ninety percent (90%) of the fair market value of the net assets of D&PL1, D&PL2 and D&PL3, respectively, and at least seventy percent (70%) of the fair market value of gross assets of D&PL1, D&PL2 and D&PL3, respectively, held immediately prior to the Transaction. There will be no amounts paid by API, MSI and EBS or the D&PL Companies to dissenters nor any amounts paid by API, MSI or EBS or the D&PL Companies to Sure Grow Shareholders in cash or other property nor any redemptions or distributions by API, MSI or EBS or the D&PL Companies (except regular and normal dividends by D&PL). Amounts used by API, MSI or EBS or the D&PL Companies to pay reorganization expenses will be included as assets of API, MSI or EBS or the D&PL Companies, respectively, immediately prior to the Transaction. (d) Prior to the Transaction, D&PL will be in control of D&PL Subs within the meaning of Section 368(c)(1) of the Code. (e) D&PL, as the sole shareholder of API, MSI and EBS after the closing, has no plan or intention to cause API, MSI or EBS to issue additional shares of their stock that would result in D&PL losing control of API, MSI or EBS within the meaning of Section 368(c)(1) of the Code. (f) D&PL has no plan or intention to reacquire any of its stock issued in the Transaction. (g) D&PL has no plan or intention to liquidate API, MSI or EBS; to merge API, MSI or EBS with or into another corporation except D&PL1, D&PL2 and D&PL3; to sell or otherwise dispose of the stock of API, MSI or EBS except for transfers of stock to corpora tions controlled by D&PL; or to cause API, MSI or EBS to sell or otherwise dispose of any of their respective assets or of any of the assets acquired from the D&PL Subs, except for dispositions made in the ordinary course of business or transfers of assets to a corporation controlled by API, MSI or EBS. (h) The liabilities (if any) of the D&PL Subs assumed by API, MSI and EBS and the liabilities (if any) to which the transferred assets of the D&PL Subs are subject were incurred by the D&PL Subs in the ordinary course of its business. (i) Following the Transaction, API, MSI and EBS will each continue their historic businesses or use a significant portion of their historic business assets in a business. (j) D&PL and D&PL Subs will pay their respective expenses, if any, incurred in connection with the Transaction. (k) There is no intercorporate indebtedness existing between D&PL and any one or more of API, MSI or EBS or between the D&PL Subs and any one or more of API, MSI or EBS that was issued, acquired, or will be settled at a discount. (l) In the Transaction, shares of API, MSI and EBS stock representing control of API, MSI or EBS, as defined in Section 368(c)(1) of the Code, will be exchanged solely for voting D&PL Common Stock. There will be no shares of API, MSI and EBS stock exchanged for cash or other property originating with D&PL. (m) D&PL does not own, nor has it owned during the past five (5) years, any shares of the stock of API, MSI or EBS. (n) None of the compensation received by any shareholder- employees of API, MSI or EBS will be separate consideration for, or allocable to, any of their shares of API, MSI or EBS stock; none of the shares of D&PL stock received by any shareholder-employees will be separate consideration for, or allocable to, any employment agreement; and the compensation paid to any shareholder-employees will be for services actually rendered and will be commensurate with amounts paid to third parties bargaining at arm's-length for similar services. (o) None of D&PL or the D&PL Subs is an investment company as defined in Section 368(a)(2)(f)(iii) and (iv) of the Code. (p) The terms of the Escrow Agreement attached as Schedule 8.6 do not constitute an impediment to the Transaction being accounted for as a Pooling-of-Interests under GAAP nor the Transaction qualifying as one or more tax-free organizations under the Code. ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF THE SURE GROW COMPANIES The Sure Grow Companies and the Sure Grow Shareholders represent and warrant to the D&PL Companies as of the Closing Date, as follows: 7.1 Due Incorporation. (a) SGS is a corporation duly organized, validly existing and in good standing under the laws of the State of Alabama. SGS has full power and authority to own and operate the assets, properties and business owned and operated by SGS. SGS is qualified to transact business and is in good standing in the jurisdictions listed on Schedule 7.1(a), which, to the best of the Sure Grow Shareholders' knowledge, are the only jurisdictions where the failure to be so qualified could have a material adverse effect on SGS or its respective businesses or assets. (b) API is a corporation duly organized, validly existing and in good standing under the laws of the State of Arizona. API has full power and authority to own and operate the assets, properties and business owned and operated by API. API is qualified to transact business and is in good standing in the jurisdictions listed on Schedule 7.1(b), which, to the best of the Sure Grow Shareholders' knowledge, are the only jurisdictions where the failure to be so qualified could have a material adverse effect on API or its respective businesses or assets. (c) EBS is a corporation duly organized, validly existing and in good standing under the laws of the State of Alabama. EBS has full power and authority to own and operate the assets, properties and business owned and operated by EBS. EBS is qualified to transact business and is in good standing in the jurisdictions listed on Schedule 7.1(c), which, to the best of the Sure Grow Shareholders' knowledge, are the only jurisdictions where the failure to be so qualified could have a material adverse effect on EBS or its respective businesses or assets. (d) MSI is a corporation duly organized, validly existing and in good standing under the laws of the State of Mississippi. MSI has full power and authority to own and operate the assets, properties and business owned and operated by MSI. MSI is qualified to transact business and is in good standing in the jurisdictions listed on Schedule 7.1(d), which, to the best of the Sure Grow Shareholders' knowledge, are the only jurisdictions where the failure to be so qualified could have a material adverse effect on MSI or its respective businesses or assets. 7.2 Power and Authority of the Sure Grow Companies. The Sure Grow Companies have the full corporate power and authority to enter into, execute and deliver this Agreement and all documents attached hereto and prepared in connection herewith or other such documents reasonably required to complete the Transaction contemplated herein and to perform fully their obligations hereunder without, to the best knowledge of the Sure Grow Shareholders, the necessity of any act, approval, or consent of any person or entity whatsoever. The execution and delivery of this Agreement, and all documents attached hereto and prepared in connection, herewith by the Sure Grow Companies and the consummation of the Transaction contemplated hereby have been duly authorized by all necessary corporate action of the Sure Grow Companies (including without limitation the approval of the respective shareholders and Boards of Directors of Sure Grow Companies). This Agreement, and upon due execution and delivery of all documents attached hereto and/or prepared in connection herewith, constitutes the legal, valid and binding obligation of the Sure Grow Companies, Sure Grow Shareholders and the Sure Grow Principals, enforceable against each of the Sure Grow Companies, Sure Grow Shareholders and the Sure Grow Principals in accordance with the respective terms thereof. All persons who have executed this Agreement and all documents attached hereto and prepared in connection herewith on behalf of the Sure Grow Companies have been duly authorized to do so by all necessary corporate action. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, no approval, agreement, or consent of any Governmental Body, and no approval, agreement, or consent of any other person, is required to be obtained by the Sure Grow Companies in connection with the execution, delivery, consummation and performance by the Sure Grow Companies of their obligations under this Agreement or any documents attached hereto and prepared in connection herewith. The representations and warranties in this Section 7.2 shall not apply to any approvals which may be required under the HSR Act, with respect to which the D&PL Companies agree to rely upon the representations and warranties of Section 7.29 and the opinion of their own counsel described in Section 3.1(a)(vi). 7.3 Capital Stock and Shareholders of the Sure Grow Compa nies. (a) As of the date of this Agreement, the capital stock of SGS consists of one class of common stock of One Dollar ($1.00) par value per share. The total number of authorized shares, the total number of issued and outstanding shares, and the name and address of each shareholder and the number of shares held by each shareholder of SGS are set forth Schedule 1.76. Except as disclosed on Schedule 7.3(a), SGS does not have nor is it bound by any outstanding agreements, options, warrants, calls, commitments, or other rights of any character calling for the sale, purchase or issuance of any shares of the common stock of SGS or other securities of SGS. Except as disclosed on Schedule 7.3(a), there are no voting trusts, proxies, or other agreements or understand ings with respect to voting of the common stock of SGS. SGS does not own any equity interest, directly or indirectly, in any other corporation, partnership, limited liability company, joint venture, or other entity. (b) The capital stock of API consists of one class of common stock of One Dollar ($1.00) par value per share. The total number of authorized shares, the total number of issued and outstanding shares, and the name and address of each shareholder and the number of shares held by each shareholder of API are set forth on Schedule 1.3. Except as disclosed on Schedule 7.3(b), API does not have nor is it bound by any outstanding agreements, options, warrants, calls, commitments, or other rights of any character calling for the sale, purchase or issuance of any shares of the common stock of API or other securities of API. Except as disclosed on Schedule 7.3(b), there are no voting trusts, proxies, or other agreements or understandings with respect to voting of the common stock of API. API does not own any equity interest, directly or indirectly, in any other corporation, partnership, limited liability company, joint venture, or other entity other than a one-third (1/3) stock ownership interest in SGS. (c) The capital stock of EBS consists of one class of common stock of One Hundred Dollars ($100.00) par value per share. The total number of authorized shares, the total number of issued and outstanding shares, and the name and address of each sharehold er and the number of shares held by each shareholder of EBS are set forth on Schedule 1.31. Except as disclosed on Schedule 7.3(c), EBS does not have nor is it bound by any outstanding agreements, options, warrants, calls, commitments, or other rights of any character calling for the sale, purchase or issuance of any shares of the common stock of EBS or other securities of EBS. Except as disclosed on Schedule 7.3(c), there are no voting trusts, proxies, or other agreements or understandings with respect to voting of the common stock of EBS. EBS does not own any equity interest, directly or indirectly, in any other corporation, partnership, limited liability company, joint venture, or other entity other than a one-third (1/3) stock ownership interest in SGS. (d) The capital stock of MSI consists of one class of common stock of Fifty Dollars ($50.00) par value per share. The total number of authorized shares, the total number of issued and outstanding shares, and the name and address of each shareholder and the number of shares held by each shareholder of MSI are set forth on Schedule 1.58. Except as disclosed on Schedule 7.3(d), MSI does not have nor is it bound by any outstanding agreements, options, warrants, calls, commitments, or other rights of any character calling for the sale, purchase or issuance of any shares of the common stock of MSI or other securities of MSI. Except as disclosed on Schedule 7.3(d), there are no voting trusts, proxies, or other agreements or understandings with respect to voting of the common stock of MSI. MSI does not own any equity interest, directly or indirectly, in any other corporation, partnership, limited liability company, joint venture, or other entity other than a one-third (1/3) stock ownership interest in SGS. (e) As of closing on Closing Date, each of the Agree ments disclosed on Schedules 7.3(a), 7.3(b), 7.3(c) and 7.3(d) will be released and cancelled by each of the parties thereto. 7.4 No Conflicts. Neither the execution and delivery of this Agreement or any documents attached hereto and prepared in connec tion herewith nor the consummation of the Transaction contemplated hereby or by any documents attached hereto and/or prepared in connection herewith will (a) violate or conflict with or result in a breach of any of the terms, conditions, or provisions of this Agreement, documents attached hereto, and/or prepared in connection herewith or constitute a default under any provisions of the Articles of Incorporation or By-Laws of any of the Sure Grow Companies, (b) violate or conflict with any contract, instrument, arrangement, obligation, commitment, understanding, or agreement to which any of the Sure Grow Companies is a party or by which any property or assets of any of the Sure Grow Companies are bound, (c) result in the creation of any lien, charge or encumbrance upon any of the assets of the Sure Grow Cotton Planting Seed Business, or (d) violate any judgment, order, injunction, decree or award of any Governmental Body or, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, violate any applicable laws or regulations to which the Sure Grow Companies are subject. The representations and warranties in this Section 7.4 shall not apply to any approvals which may be required under the HSR Act, with respect to which the D&PL Companies agree to rely upon the representations and warranties of Section 7.29 and the opinion of their own counsel described in Section 3.1(a)(vi). 7.5 Real Property. Schedule 1.69-A contains a true and compl ete description of the Real Property. Upon the completion of the Transaction, the Sure Grow Companies shall have good and marketable title to all of the Real Property (other than the real estate listed on Schedule 1.69-B and the leased property listed and identified as such on Schedule 1.69-A), including leasehold inter ests, at no additional cost and without additional consents, free and clear of all Liens, except Permitted Liens and Title Exceptions described in Section 1.63. To the best of the Sure Grow Companies' knowledge, all structures, improvements and fixtures on the Real Property conform in all material respects to any and all applicable federal, state and local laws, ordinances, rules, and regulations, excluding Environmental Laws, environmental claims, and other environmental issues all of which are addressed in Section 7.6. Excluding Environmental Laws, environmental claims, and any other environmental issues, all of which are addressed in Section 7.6, and except as disclosed on the Environmental Site Assessment Reports the Sure Grow Companies have not received any written notice of, and the Sure Grow Companies are not presently aware of, any claim by any person, firm, corporation or other entity, either private or governmental alleging: (a) that any of the various purposes for which the Real Property is currently being used violates any applicable law, ordinance, rule or regulation of any Governmental Body, (b) that there exists in connection with the Real Property any material violation of any such law, ordinance, rule or regulation, or requiring any substantial work, repairs, construction, alterations or installation, or (c) that there is pending or threatened any proceeding for the taking of all or any portion of the Real Property by condemnation or eminent domain. 7.6 Environmental Claims. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, except as disclosed in the Environmental Site Assessment Reports and/or Schedule 7.6-B, within the ten (10) years immediately preceding the date of execution hereof by SGS, EBS, MSI, and API, the Sure Grow Companies and their predecessors in interest have complied in all material respects with all applicable Environmental Laws with respect to any of the Real Property and any other real property previously owned or used in any manner (including, without limitation, as a storage or disposal site) by the Sure Grow Companies. The records provided by the Sure Grow Companies to the D&PL Companies and/or to Environmental and Safety Designs, Inc., as agents of the D&PL Companies, include all material documents in the possession of the Sure Grow Companies relating to environmental conditions at the Real Property or any other such real property. Except as disclosed in the Environmental Site Assessment Reports and/or Schedule 7.6-A, no unremediated, unsatisfied, or otherwise currently pending written charge, complaint, action, suit, proceeding, investigation, claim, demand, inquiry or notice alleging any failure to comply with any applicable Environmental Law or asserting an Environmental Claim has been received by the Sure Grow Companies or the Sure Grow Shareholders from any person, firm, corporation, entity, or Govern mental Body with respect to any portion of the Real Property or the Sure Grow Companies' operations nor, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, is threatened. Without limiting the generality of the foregoing, the Sure Grow Companies specifically warrant as follows: (a) Permits. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders (and without the Sure Grow Companies and the Sure Grow Shareholders having made specific inquiry to applicable regulatory authorities, if any, concerning compliance with permit requirements), within the ten (10) years immediately preceding the date of execution hereof by SGS, EBS, MSI, and API, the Sure Grow Companies and their predecessors in interest have obtained and have listed on Schedule 1.62 all material Permits which are required under applicable Environmental Laws in connection with the conduct of the Sure Grow Cotton Planting Seed Business operations presently conducted, and conducted during such period, on the Real Property, specifically including, without limitation, any ponds, tanks, or other facili ties used for treatment and/or disposal, if any, of effluent from Delinting on the Real Property, and that to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, the Sure Grow Companies are in compliance in all material respects with the terms and conditions of all such Permits. (b) Handling of Hazardous Materials. Except as disclosed in the Environmental Site Assessment Reports and/or on Schedule 7.6-A, to the best knowledge of the Sure Grow Companies and Sure Grow Shareholders, no Hazardous Materials have been recycled, treated, stored, disposed of or released by the Sure Grow Companies on the Real Property or on any other real property (other than on that certain real estate located in Cherokee County, Alabama, owned by W. A. Ellis, III, more specifically described on Schedule 7.6(b)), except in compliance with applicable Environ mental Laws. Except as disclosed in the Environmental Site Assessment Reports and/or on Schedule 7.6-A, any Releases have been remediated in compliance with applicable Environmental Laws. No written notification of a Release of Hazardous Materials on the Real Property or on other real property by the Sure Grow Companies has been filed by or on behalf of the Sure Grow Companies. The Sure Grow Companies do not own or operate a storage, treatment or disposal facility on the Real Property requiring a permit under RCRA, or under any other comparable applicable state or local law, and, without limiting the foregoing, except as disclosed on the Environmental Site Assessments Reports and/or on Schedule 7.6-A, (i) no polychlorinated biphenyl is in use or stored at the Real Property, (ii) no friable asbestos or friable asbestos-containing material is present at the Real Property, and (iii) no underground storage tanks or surface impoundment for Hazardous Materials, active or abandoned, are present at the Real Property. The Real Property is not (i) listed on the NPL under CERCLA nor (ii) listed for possible inclusion on the NPL by the Environmental Protection Agency in the CERCLIS or any similar state or local list. (c) Environmental Liens. Except as disclosed in the Environmental Site Assessment Reports and/or on Schedule 7.6-A, to the best knowledge of Sure Grow Companies and the Sure Grow Shareholders, no Liens with respect to the Real Property exist under or pursuant to any Environmental Law and the Sure Grow Compan ies have received no written notice from any Governmental Body regarding any action to subject the Real Property to such a Lien. Environmental Laws in effect at the time this Agreement is signed will not require the Sure Grow Companies to place any notice or restriction related to the presence of Hazardous Materials on the Real Property in any deed to the Real Property. 7.7 Equipment. Schedule 1.36-A is a complete list of the Equipment owned by the Sure Grow Companies and/or regularly used in the Sure Grow Cotton Planting Seed Business. The Sure Grow Companies have good and marketable title to all of the Equipment, except such Equipment on Schedule 1.36-A which is designated as regularly used but not owned by the Sure Grow Companies, subject only to the Permitted Liens and Title Exceptions and the liens and encumbrances listed on Schedule 7.7. Upon the consummation of the Transaction, the Sure Grow Companies will have good and marketable title to all of the Equipment, in each case, free and clear of any Lien (except Permitted Liens and Title Exceptions described in Section 1.63 or the liens and encumbrances listed on Schedule 7.7). The Equipment is in good working order, ordinary wear and tear excepted and is adequate and sufficient for the operation of the Sure Grow Companies' business as presently conducted consistent with past practices. 7.8 Seed Rights. The Sure Grow Companies are the sole and exclusive owners of the Cotton Germplasm and Breeding Populations and upon the closing of the Transaction on the Closing Date, the Sure Grow Companies will continue to be the sole and exclusive owner of all rights to the Cotton Germplasm and Breeding Popula tions. The Sure Grow Companies do not use in their business including, without limitation, in their Cotton Research and Breeding programs, any know-how, trade secrets, inventions, patents, licenses or franchises pertaining thereto which requires consent of any owner thereof and which consent has not been obtained. All Breeder Seed, Foundation Seed, Registered Seed and Certified Seed included in the Inventory are seed of Sure Grow Cotton Varieties of which the Sure Grow Companies have exclusive ownership. Schedule 1.81 contains a complete list of Sure Grow Cotton Varieties. With respect to all Sure Grow Cotton Varieties listed in Schedule 1.81, the Sure Grow Companies are the exclusive owners of certificates of Plant Variety Protection properly issued pursuant to the PVPA, or the Sure Grow Companies have filed timely applications for protection under the PVPA, or the Sure Grow Companies have the right to file applications and obtain certifi cates of protection under the PVPA. True and correct copies of all PVPA certificates and applications pertaining to the Sure Grow Cott on Varieties have been provided to D&PL not less than fourteen (14) days before Closing Date. The Sure Grow Cotton Varieties are free and clear of all claims or other encumbrances except as expressly set forth in Schedule 7.8. The Sure Grow Companies have done no act which constitutes a breach of the rights of any third party with respect to Sure Grow Cotton Varieties or Cotton Germplasm or Breeding Populations used by the Sure Grow Companies and/or their Employees or which would prevent the Sure Grow Companies (and/or, after closing of the Transaction, the D&PL Companies) from Producing and Marketing, or licensing others to Produce and Market, Cotton Planting Seed of Sure Grow Cotton Varieties or of the progeny of Cotton Germplasm or Breeding Populations used by the Sure Grow Companies and/or their Employees, nor has any of the Sure Grow Companies been charged (in writing) with or notified (in writing) of any infringement or alleged claim of infringement of any adversely held know-how, trade secret, invention, patent, PVPA certificate, certificate issued under the plant variety protection laws of other nations, trademark, trade name, brand name or copyright relating to Sure Grow Cotton Planting Seed Business and the Sure Grow Companies and the Sure Grow Shareholders know of no reasonable basis for any such charge or claim. None of the Sure Grow Companies is a party to or the beneficiary of, or aware of, any agreements, consent or understanding which restricts the use by the Sure Grow Companies, or which will restrict the Sure Grow Com panies' (and/or, after Closing of the Transaction the D&PL Companies') Producing or Marketing, or licensing others to Produce and Market, after consummation of the Transaction on the Closing Date, seed of the Sure Grow Cotton Varieties or of the Cotton Germplasm and Breeding Populations, or the progeny thereof. Further, upon closing of the Transaction on the Closing Date, all Cotton Germplasm and Breeding Populations which were in the possession or control of breeders working for the Sure Grow Companies as of August 18, 1995, the progeny thereof, and all notes, books, and any other records pertaining thereto, will be exclusively in the possession of the Sure Grow Companies surviving the Transaction as contemplated in Article 2 and that, to the best of their knowledge, no such Cotton Germplasm or Breeding Popula tions have been delivered to or retained by any person or entity other than authorized Employees of the Sure Grow Companies, in their capacity as such. 7.9 Inventory. The Sure Grow Companies have good and marketable title to the Inventory, and upon the completion of the Transaction, they will have good and marketable title to all of the Inventory, free and clear of any Lien (except Permitted Liens and Title Exceptions and Liens disclosed on Schedule 7.9). Upon the Closing Date, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, the Inventory of Breeder Seed, Foundation Seed, Registered Seed and Certified Seed owned by the Sure Grow Companies and which has been delinted, conditioned and bagged will (subject to sampling procedures and statistical toleran ces permitted by applicable laws and regulations and generally accepted in the cotton planting seed industry) meet all applicable state and federal laws and regulations pertaining to Cotton Planting Seed of that particular class. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, all of the Sure Grow Companies' Breeder Seed, Foundation Seed, Registered Seed and Certified Seed which is in undelinted form upon the Closing Date is in material compliance (subject to sampling procedures and statistical tolerances permitted by applicable laws and regulations and generally accepted in the cotton planting seed industry) with all applicable state and federal laws and regulations which would allow it, when delinted and conditioned, consistent with past business practices and records to be certified for use and sale as seed of the subject class. 7.10 Compliance with Laws. Except as disclosed in the Environmental Site Assessment Reports and/or in Sections 7.1, 7.2, 7.6, and 7.20, and/or the Schedules referenced in those sections, the Sure Grow Companies have complied in all material respects with all Legal Requirements and orders of every Governmental Body, the non-compliance with which would have a material adverse effect upon the continued operation of the Sure Grow Companies' assets. Schedule 1.62 contains a complete list of all Permits held by the Sure Grow Companies for the conduct of operations of the Sure Grow Cotton Planting Seed Business. True and correct copies of all Permits have been provided to the D&PL Companies. Except as noted on Schedule 1.62, all such Permits are in full force and effect, and no material uncured violation of any Permit exists. The representations and warranties in this Section 7.10 shall not apply to any approvals which may be required under the HSR Act, with respect to which the D&PL Companies agree to rely upon the representations and warranties of Section 7.29 and the opinion of their own respective counsel described in Section 3.1(a)(vi). 7.11 Actions and Proceedings. Except as disclosed on the attached Schedule 7.11, there are no outstanding orders, judgments, injunctions, awards, writs, stays or decrees of any court, regulatory or Governmental Body or arbitration tribunal against any of the Sure Grow Companies or their assets. The Sure Grow Shareholders have received no actual notice of any actions, suits or claims or legal, administrative or arbitral proceedings or investigations pending or, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, threatened against any of the Sure Grow Companies or their assets. 7.12 Contracts and License Agreements. Schedule 1.18 contains a true and complete list of all material contracts to which any of the Sure Grow Companies is a party and/or which relate to the Sure Grow Cotton Planting Seed Business. Schedule 1.54 contains a true and complete list of all written License Agreements to which any of the Sure Grow Companies is a party. None of the Sure Grow Companies is a party to any non-written license agreement pertain ing to Cotton Germplasm, Cotton varieties or Cotton Planting Seed. True and correct copies of all such Contracts and License Agree ments listed on Schedule 1.18 and Schedule 1.54 have been provided to the D&PL Companies. All such Contracts and License Agreements are valid, binding, upon the particular Sure Grow Companies who are parties thereto, in accordance with their terms, and in full force and effect; the Sure Grow Companies have materially performed their obligations thereunder, and, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, the Sure Grow Companies are not in material default thereunder; and, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, no condition exists which with notice or lapse of time or both would constitute a material default thereunder. 7.13 Full Disclosure. The Sure Grow Companies have provided to the D&PL Companies copies of, or the opportunity through their authorized representatives to examine upon their request, all of the material documents within the Sure Grow Companies' possession pertaining to the Sure Grow Cotton Planting Seed Business, except (a) attorney/client privileged documents (unless such documents contain information which has or could reasonably be construed to have a material effect on the Sure Grow Cotton Planting Seed Business), (b) monthly unaudited financial statements, and (c) documents and records related to or pertaining to the Sure Grow Cotton Varieties or the Sure Grow Companies' Cotton Germplasm and Breeding Populations in the development stage. 7.14 Authenticity of Documents. Each document delivered by or on behalf of the Sure Grow Companies in connection with this Agreement, the negotiations thereof, and the Transaction contem plated hereby is materially true, materially complete and authen tic. The written information, including financial information, audited by or furnished by the Sure Grow Companies or by Hughel Goodgame & Associates or by Ellis & Hirsburg, Certified Public Accountants, on behalf of the Sure Grow Companies to the D&PL Companies and/or their representatives in connection with this Agreement, the negotiations thereof, and the Transaction contem plated hereby, is materially true and correct and does not intentionally omit any material facts. 7.15 Statements Made. No representation, warranty, statement made or information or data provided by the Sure Grow Companies in this Agreement or in any schedule, exhibit, written material, document, magnetic media, books and records or certificate furnished or to be furnished by or on behalf of the Sure Grow Companies in connection with the Transaction contemplated hereby knowingly contains or knowingly will contain any untrue statement of material fact or knowingly omits or knowingly will omit to state a material fact necessary to make the statements contained herein or therein not misleading; notwithstanding the foregoing Schedules and other documents may contain estimates (identified as such) which are made to the subject Parties' best knowledge. Notwith standing the foregoing (except as expressly set forth in Section 7.8 concerning rights pertaining to seed), the Sure Grow Companies make no representation with respect to the prospects of Sure Grow Companies' Cotton Planting Seed Business, including without limitation the performance of the Sure Grow Cotton Varieties or Cotton Germplasm and Breeding Populations in the development stage, subsequent to the closing, but only as to facts relating thereto at and prior to the Closing. 7.16 Financial Statements. The Audited Separate Company Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods presented and are materially accurate and fairly present in all material respects the financial position and results of the operations of the individ ual Sure Grow Companies as of the respective dates thereof. The Audited Combined Financial Statements shall be prepared in accordance with GAAP applied on a consistent basis throughout the periods presented and shall be materially accurate and fairly present in all material respects the financial position and results of the operations of the combined Sure Grow Companies as of the respective dates thereof. All Audited Separate Company Financial Statements and Audited Combined Financial Statements are (or shall be) derived from the books and records of the Sure Grow Companies and (a) have been (or shall be) prepared in accordance with GAAP applied on a consistent basis throughout the periods covered by such statements, (b) have been prepared in material accordance with Regulations SK and SX and (c) are (or shall be) materially accurate and fairly present in all material respects the financial position of the Sure Grow Companies on a combined basis as of the respective dates thereof and the results of their respective operations and the changes in their respective financial position for the respective periods covered thereby. The Unaudited Separate Company Financial Statements and the Unaudited Quarterly Combined Financial Statements shall, in all material respects, reflect the information recorded in the books and records of the Sure Grow Companies and present fairly in all material respects the financial position of the Sure Grow Companies on a combined basis as of the respective dates thereon, and present fairly in all material respects the results of operations and the changes in financial position for the periods indicated. In accordance with the standards relating to unaudited financial statements as promulgated by the American Institute of Certified Public Accountants, the Unaudited Separate Company Financial Statements and the Unaudited Quarterly Combined Financial Statements do not and shall not include footnotes and have not been reviewed by independent public accountants. 7.17 Liabilities. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, except as otherwise disclosed on Schedule 7.17 and/or the other Schedules attached here to and/or on the Financial Statements, the Sure Grow Companies have no material liabilities or material obligations of any nature, whether accrued, absolute, contingent, or otherwise, and whether or not required to be shown on a balance sheet prepared in accordance with GAAP, exclusive of normal and customary operating debt incurred in the normal and ordinary course of the Sure Grow Companies' Cotton Planting Seed Business, including but not limited to, that debt necessary to acquire current seed inventory and for routine plant maintenance. 7.18 Cash Reserves. The Sure Grow Companies shall, upon Closing Date, have sufficient cash, current seed Inventory or other liquid assets, including accounts receivable, to pay any current unsecured short term liabilities for normal and customary operating expenses incurred in the normal and ordinary course of business as provided for in Section 7.17 and to cover reserves for taxes and known contingencies. 7.19 No Material Adverse Change. Except as disclosed on Schedule 7.19, or on any Financial Statements prepared and delivered to the D&PL Companies, since the last date of the 1995 fiscal years of each of the respective Sure Grow Companies, other than seasonal changes occurring in the ordinary and normal course of business, there has not been any material adverse change in the business, condition, financial or otherwise, prospects or results of operations of the Sure Grow Companies. 7.20 Taxes. (a) Except as disclosed on the attached Schedule 7.20(a), the Sure Grow Companies have (i) duly filed (or there has been duly filed on their behalf) with the appropriate federal, state, local, and foreign taxing authorities all Tax Returns due and required to be filed (taking into account any extensions) by or with respect to the Sure Grow Companies on or before the date hereof, and (ii) paid in full on a timely basis (or there has been paid on their behalf) all Taxes shown to be due on such tax returns. The liability accrued on the Audited Financial Statements for API, EBS and MSI for fiscal years ending on or before June 30, 1995, and for SGS for fiscal years ending on or before August 31, 1995, for current Taxes for taxable years or periods ending on or before June 30, 1995 and August 31, 1995, respectively, have been determined in accordance with GAAP consistently applied. (b) Except as disclosed on the attached Schedule 7.20(b), the Sure Grow Companies have not received any written notice of a deficiency or assessment with respect to Taxes from any federal, state, local, or foreign taxing authority which has not been fully paid or finally settled. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, except as disclosed on Schedule 7.20(b), there are no ongoing audits or examination of any Tax Return of the Sure Grow Companies. Except as disclosed on Schedule 7.20(b), no written notice of audit or examination of any such tax returns has been received by the Sure Grow Companies. The Sure Grow Companies have not given, and there has not been given on behalf of the Sure Grow Companies, a waiver or extension of any statute of limitations relating to the payment of taxes. Except as disclosed on Schedule 7.20(b), the federal income tax returns of the Sure Grow Companies have been audited by the IRS or are closed by the applicable statute of limitations for all periods through June 30, 1992, for API, EBS and MSI and August 31, 1992, for SGS, and no issue has been raised in writing, or to the best knowledge of the Sure Grow Companies or any of the Sure Grow Shareholders, on audit, or in any other proceeding with respect to Taxes of the Sure Grow Companies by any federal, state, local, or foreign taxing authority. (c) The Sure Grow Companies have paid over to the proper Governmental Bodies all income or other Taxes and amounts required to be withheld and which are due with respect to salary and other compensation of directors, officers, and Employees of the Sure Grow Companies. (d) Except for Permitted Liens and Title Exceptions, or any other matters disclosed in this Agreement and/or on the Schedule attached hereto, there are no Liens with respect to Taxes upon any of the properties or assets, real or personal, tangible or intangible, of the Sure Grow Companies. 7.21 Employees. (a) Schedule 7.21(a) sets forth with respect to each regular, full-time salaried or hourly Employee of the Sure Grow Companies as of March 7, 1996, the Employee's name, job title, annual salary, hourly rate, hire date, and years of service. There has been no material change in the information on Schedule 7.21(a) from March 7, 1996, through Closing Date. (b) Schedule 7.21(b) sets forth (i) all written employ ment, consulting, severance, retention, termination and similar agreements and arrangements under which the Sure Grow Companies currently have any obligation to an Employee or to any former Employee of the Sure Grow Companies and (ii) all written incentive, bonus, performance and similar compensatory plans and arrangements in which Employees of the Sure Grow Companies are eligible to participate. The Sure Grow Companies have provided to the D&PL Companies true and complete copies of all plans, agreements, and arrangements listed on Schedule 7.21(b). There are no non-written plans, agreements, or arrangements which, if written, would have been required to be disclosed in accordance with this Section. (c) To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, and except as disclosed on Schedule 4.1, there are no suits, investigations, claims, or proceedings pending or threatened relating to or arising out of the employment of any Employee or former Employee. (d) None of the Sure Grow Companies is a party to any collective bargaining agreement. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, there is no organizing effort now underway among any Employees of the Sure Grow Companies and any labor organization. 7.22 Employee Benefit Plans. (a) ERISA. Except as set forth on Schedule 7.22, none of the Sure Grow Companies is a party to and does not participate or has not participated in any written or non-written (i) profit sharing, deferred compensation, bonus, stock retirement, welfare, or incentive plan or agreement, whether legally binding or not, (ii) plan providing for "fringe benefits" to its employees, including, but not limited to, vacation, sick leave, medical, hospitalization, life insurance, and other insurance plans, and related benefits, (iii) other "employee benefit plan" (within the meaning of Section 3(3) of ERISA or (iv) "multi-employer plan" (within the meaning of Section 3(37) of ERISA). True, correct and complete copies of the plan documents and agreements referred to in Schedule 7.22 and all related summary plan descriptions have been provided or will be provided to the D&PL Companies before Closing Date. The Sure Grow Companies are in material compliance with the applicable provisions of ERISA and the regulations and rulings issued thereunder with respect to each employee benefit plan subject thereto and listed on Schedule 7.22, and each has performed all of its obligations under such plans. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, there are no actions, suits or claims (other than routine claims for benefits) pending or threatened against such plans or the assets of such plans and no facts exist which could reasonably be expected to give rise to any actions, suits or claims (other than routine claims for benefits) against such plans or the assets of such plans. (b) Pension and Profit Sharing Plan. The "employee pension benefit plans" (within the meaning of Section 3(2) of ERISA), if any, described on Schedule 7.22 have been fully authorized by the Board of Directors of the Sure Grow Companies. To the best knowledge of the Sure Grow Companies and Sure Grow Shareholders: (1) each such plan in all material respects is qualified in form and operation under Section 401(a) and 501(a) of the Code to the extent the Code requires such qualification; (ii) no event has occurred which will or could reasonably be expected to subject the Sure Grow Companies or any such plans to tax under Sections 511, 4972, or 4975 of the Code; (iii) no prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA), or breach of fiduciary responsibili ty under Title I of the ERISA, which transaction is not exempt or for which exemption is not available under Section 4975 of the Code or Section 408 of ERISA, has occurred with respect to any such plan; (iv) no accumulated funding deficiency, whether or not waived, exists with respect to any such plan, no condition has occurred or exists which with the passage of time would be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such plan, and no employer maintaining the plan has failed to make full payment when due of all amounts which under the provisions of any such plan are required to be made as contributions thereto and no excise taxes are payable under the Code. The Sure Grow Companies have provided to the D&PL Companies for each of the employee pension benefit plans (i) a copy of any Form 5500 which was filed in each of the most recent three plan years (to the extent applicable), including, without limitation, all schedules thereto, (ii) a copy of any Form PBGC-1, if applica ble, which was filed in each of the most recent three (3) plan years, (iii) the most recent determination letter from the Internal Revenue Service if obtained prior to the date hereof, (iv) the consolidated statement of assets and liabilities of each of the employee pension benefit plans as of its most recent valuation date, (v) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under each of said plans for the most recently ended plan year, and (vi) with respect to any such plan which is subject to Title IV of ERISA, the actuarial report as of the last valuation date. To the best of the Sure Grow Companies' and the Sure Grow Shareholders' knowledge, such documents fairly present the financial condition of each said plan as at such dates and the results of operations of each of said plans, all on a consistent basis. (c) Title IV Plans. With respect to each employee pension benefit plan (excluding plans not subject to the provisions of title IV of ERISA), if any, listed on Schedule 7.22 (i) no employer maintaining the plan has completely or partially withdrawn from such a pension plan, (ii) there has been no notice of intent to terminate any such plan filed and no such plan has been terminated, (iii) to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, the Pension Benefit Guaranty Corporation ("PBGC") has not instituted proceedings to terminate any such plan, (iv) to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, no other event or condition has occurred which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan, and (v) to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, all required premium payments to the PBGC have paid when due, and (vi) to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, no other reportable event, as described in Section 4043 of ERISA and the regulations thereunder, has occurred with respect to said plans which event has been reported. (d) Continuation Coverage Requirements of Health Plan. All group health plans of the Sure Grow Companies (including any affiliates which must be taken into account under Section 4980b of the Code) have been operated in good faith, and substantially in compliance with the group health plan continuation coverage requirements of Section 4980B of the Code to the extent such requirements are applicable. (e) Fines and Penalties. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, there are no fines, penalties, taxes, or related charges under Sections 502(c) or (k) or (l) or 4071 of ERISA or Chapter 43 or Section 511 of the Code which are assessable against the Sure Grow Companies. 7.23 Physical Damage. Except as disclosed on Schedule 7.23, there exists no physical damage (ordinary wear and tear excepted) to any of the assets of the Sure Grow Cotton Planting Seed Business owned by the Sure Grow Companies, which physical damage is not insured against and which physical damage would cause any material ly adverse effect on the operation, value, or marketability of any such asset. 7.24 Insurance. Schedule 7.24 lists all of the insurance policies, binders, and bonds maintained by the Sure Grow Companies, all of which are in full force and effect except as otherwise indicated on Schedule 7.24; the Sure Grow Companies are not in default thereunder; all known claims thereunder have been filed in due and timely fashion; and to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, all such policies, binders and bonds will remain in full force and effect after the Closing Date, unaffected by the Transaction contemplated hereby. The Sure Grow Companies have provided or will provide before Closing Date to the D&PL Companies, true, correct and complete copies of all insurance policies, binders and bonds listed on Schedule 7.24. 7.25 No Broker. No broker, finder, agent or similar interme diary has acted for or on behalf of the Sure Grow Companies in connection with this Agreement or the Transaction contemplated hereby, and no broker, finder, agent or similar intermediary is entitled to any broker's, finder's or similar fee or other commission in connection therewith based on any agreement, arrangement or understanding with the Sure Grow Companies. 7.26 "SURE GROW" Name. The "SURE GROW" name as used by the Sure Grow Companies for Cotton Planting Seed is not a registered trademark or trade name. Except as disclosed on Schedule 7.26, to the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, the "SURE GROW" name is free and clear of any known encumbrances, restrictions, security interests, or third party rights which would in any way materially interfere with, prevent, or hinder the use by the Sure Grow Companies or the D&PL Companies of the name and mark "SURE GROW" for Cotton Planting Seed. To the best knowledge of the Sure Grow Companies and the Sure Grow Shareholders, no third party has any right or license to use the name or mark "SURE GROW" for Cotton Planting Seed. The Sure Grow Companies have not received any written notice or claim that their use of the name and mark "SURE GROW" for Cotton Planting Seed allegedly violates the rights of any third party. 7.27 Investment Intent. The Sure Grow Shareholders are acquiring the stock of D&PL for investment purposes only and not with a view to resale or distribution. 7.28 Additional Representations of Sure Grow Companies and Sure Grow Shareholders. The Sure Grow Companies and the Sure Grow Shareholders represent, to their best knowledge, that: (a) The fair market value of the D&PL Common Stock recei ved by the Sure Grow Shareholders will be approximately equal to the aggregate fair market value of the API, MSI and EBS stock surrendered in the Transaction. (b) Upon execution of this Agreement on Closing Date, there is no plan or intention by the Sure Grow Shareholders who own one percent (1%) or more of the stock of API, MSI or EBS, and to the best knowledge of the management of the Sure Grow Companies, there is no present plan or intention on the part of the remaining Sure Grow Shareholders (if any) to sell, exchange, or otherwise dispose of a number of shares of D&PL stock received in the Transaction that would reduce the Sure Grow Shareholders' aggregate ownership of D&PL stock to a number of shares having a value, as of the date of the Transaction, of less than fifty percent (50%) of the value of all of the formerly outstanding shares of API, MSI and EBS stock as of the same date. There will be no shares of API, MSI and EBS stock exchanged for cash or other property, surrendered by dissenters, or exchanged for cash in lieu of fractional shares of D&PL stock. Shares of API, MSI and EBS stock and shares of D&PL stock (if any) held by Sure Grow Shareholders and otherwise sold, redeemed, or disposed of prior or subsequent to the Transaction will be considered in making this representation. (c) Subject to Section 3.3, API, MSI and EBS, and the Sure Grow Shareholders will pay their respective expenses, if any, incurred in connection with the Transaction. (d) In the Transaction, shares of API, MSI or EBS stock representing control of API, MSI or EBS, as defined in Section 368(c)(1) of the Code, will be exchanged solely for voting D&PL Common Stock. There will be no shares of API, MSI and EBS stock exchanged for cash or other property originating with D&PL. (e) At the time of closing of the Transaction, API, MSI and EBS will not have outstanding any warrants, options, convert ible securities, or any other type of right pursuant to which any person could acquire stock in API, MSI or EBS that, if exercised, or converted, would affect D&PL's acquisition or retention of control of API, MSI or EBS, as defined in Section 368(c)(1) of the Code. (f) The Sure Grow Companies and the Sure Grow Sharehold ers are not investment companies as defined in Section 368(a)(2) (f)(iii) and (iv) of the Code. (g) On the closing of the Transaction, the fair market value of the assets of API, MSI and EBS will exceed the sum of their respective liabilities, plus the amount of liabilities, if any, to which the assets are subject. (h) API, MSI and EBS are not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(a) of the Code. (i) None of the compensation received by any shareholder- employee or API, MSI or EBS will be separate consideration for, or allocable to, any of their shares of API, MSI or EBS stock; none of the shares of D&PL stock received by any shareholder-employees will be separate consideration for, or allocable to, any employment agreement; and the compensation paid to any shareholder-employees will be for services actually rendered and will be commensurate with amounts paid to third parties bargaining at arm's-length for similar services. 7.29 Representations Relevant to Inapplicability of the HSR Act. As of the execution of this Agreement on Closing Date: (a) Each of API, MSI, and SGS is its own "ultimate parent entity" as that term is defined in Section 801.1(a)(3) of the Premerger Notification Rules. (b) W. A. Ellis, III, is the "ultimate parent entity" of EBS as that term is defined in Section 801.1(a)(3) of the Premerger Notification Rules. (c) The "annual net sales" and "total assets" of API, as defined in Section 801.11 of the Premerger Notification Rules, are each less than $10 million. (d) The "annual net sales" and "total assets" of EBS, as defined in Section 801.11 of the Premerger Notification Rules, are each less than $10 million. (e) The "annual net sales" and "total assets" of MSI, as defined in Section 801.11 of the Premerger Notification Rules, are each less than $10 million. (f) The "total assets" of SGS, as defined in Section 801.11 of the Premerger Notification Rules, are less than $10 million. (g) SGS is "not engaged in manufacturing" within the meaning of Section 7A.(a) of the Clayton Act, 15 U.S.C. 18A, and SGS does not presently and did not in 1995 derive any revenues classifiable in the 2-digit SIC major groups 20-39, as set forth in the 1987 edition of the Standard Industrial Classification Manual. (h) The "annual net sales" and "total assets" of W. A. Ellis, III, as defined in Section 801.11 of the Premerger Notifica tion Rules, are each less than $10,000,000. (i) True and complete copies of the most recent regularly prepared annual income statement and the most recent regularly prepared balance sheet, which are the financial state ments upon which the foregoing representations and warranties are based, have been delivered to the D&PL Companies. ARTICLE 8. INDEMNIFICATION 8.1 Obligation of Sure Grow Shareholders to Indemnify. (a) Indemnity Obligations. Subject to the provisions of Section 8.1(b), the Sure Grow Shareholders, severally in proportion to each of their respective aggregate interests shown on Schedule 8.1(a) and not jointly, shall indemnify, defend and hold harmless the D&PL Companies and/or any of the Sure Grow Companies (as may be in existence after the Closing Date), their officers, directors, employees, affiliates, successors and assigns from and against any actual losses, liabilities, damages or deficiencies (including, without limitation, interest, penalties, disbursements and reasonable, actual and necessary attorneys' fees and expenses), solely in accordance with claims timely and properly asserted in accordance with Section 8.4, and arising out of the operation of the Sure Grow Cotton Planting Seed Business as conducted on or before the Closing Date or otherwise arising out of this Agreement, solely with regard to claims based on or due to: (i) any breach of any representation or warranty or failure to perform any covenant or agreement (excluding represen tations, warranties, covenants and agreements regarding Taxes which are addressed in Sections 8.1(c) and 8.1(d) below and excluding those representations in Section 7.28 which pertain to matters within the knowledge or control of the D&PL Companies for which the Sure Grow Shareholders shall have no liability to the D&PL Companies and/or the Sure Grow Companies) of the Sure Grow Companies or the Sure Grow Shareholders contained in this Agreement or in any document or other writing delivered hereunder; (ii) except with regard to matters disclosed in Section 7.10 or the Schedule referenced therein, any liability to Employees of the Sure Grow Companies arising from their employment with the Sure Grow Companies, prior to the Closing Date, or the termination of such employment by the Sure Grow Companies prior to Closing, including, but not limited to, damages resulting from any failure by the Sure Grow Companies to comply with the Discrimina tion Laws prior to the Closing Date, provided, however, that if such damages result from the failure of the Sure Grow Companies to comply with Discrimination Laws prior to the Closing Date and such failure to comply with Discrimination Laws continues after the Closing Date, then the indemnification by the Sure Grow Sharehold ers shall be limited to an equitable proportion of the total liability to such Employee(s) which takes into account the responsibility of the Sure Grow Companies and/or the Sure Grow Shareholders for such failure to comply with Discrimination Laws prior to the Closing Date and the conduct of the Sure Grow Companies and/or the D&PL Companies with respect to such Employ ee(s) after the Closing Date; (iii) employee benefit plan obligations to Employees of the Sure Grow Companies referred to in Section 7.22, arising prior to the Closing Date, from such Employee's employment with the Sure Grow Companies, or the termination of such employment by the Sure Grow Companies, prior to the Closing Date; (iv) any Sure Grow Products Liability arising at any time with respect to any product sold by the Sure Grow Companies on or before Closing Date; (v) contamination by Hazardous Materials, if any, of soil or ground waters or other violations of applicable Environmen tal Laws arising from any conditions at the Real Property or activities of the Sure Grow Companies or their predecessors in interest on or before Closing Date other than the matters disclosed in Section 7.6, the Schedules referenced therein, and in the Environmental Site Assessments; and (vi) any other contract, tort or other claims pertaining to the Sure Grow Cotton Planting Seed Business arising from events on or before Closing Date, except as disclosed in this Agreement and/or on the Schedules attached hereto. (b) Limitations on Indemnity Obligations. Notwithstand ing anything contained in this Agreement to the contrary, the following limitations shall apply to the indemnification obliga tions of the Sure Grow Shareholders under Section 8.1(a): (i) The Sure Grow Shareholders shall not be liable for indemnification under Section 8.1 for breaches of represen tations and warranties or failures to perform covenants and agreements (excluding breaches of the representations and warran ties of Sections 7.3, 7.8, 7.20 and 7.29 or breaches by the Sure Grow Shareholders on or after the Closing Date of the agreements and covenants contained in Section 5.4), unless and until the aggregate of the actual expenses, losses and/or damages arising out of or attributable to all such breaches or failures exceeds, in the aggregate, $100,000.00 and then the Sure Grow Shareholders shall be liable for only those aggregate losses and/or damages which exceed $100,000.00 and, except with regard to breaches of the representa tions and warranties set forth in Sections 7.3, 7.8, 7.20 and 7.29 or breaches by the Sure Grow Shareholders on or after the Closing Date of the agreements and covenants contained in Section 5.4, are less than an amount equal to the value, as of the Closing Date, of ten percent (10%) of the shares of D&PL stock received by the Sure Grow Shareholders as Consideration hereunder; provided, however, that any indemnification by the Sure Grow Shareholders with regard to any breaches of the representations and warranties set forth in Sections 7.3, 7.8, 7.20 and 7.29 or breaches of agreements and covenants contained in Section 5.4 shall be limited to an amount equal to the closing bid price for a share of D&PL stock on the last business day prior to the Closing Date (which is stipulated to have been $48.25 per share) multiplied by the number of shares of D&PL Common Stock constituting the Consideration, less the sum of $5,000,000.00. (ii) The amount of any losses and/or damages otherwise payable to the D&PL Companies and/or any of the Sure Grow Companies (as may be in existence after the Closing Date), any of their officers, directors, employees, affiliates, successors and assigns, hereunder shall be reduced by the total of (a) the amount of any insurance proceeds actually received by the Sure Grow Companies, the D&PL Companies or any of their officers, directors, employees, affiliates, successors and assigns as compensation for the damage or loss caused by the act, omission, fact, or circum stances giving rise to such claim for indemnification, (b) the tax benefit received by the Sure Grow Companies and/or the D&PL Companies by virtue of the use of such loss and/or damages as a federal, state, or local tax deduction and (c) the amount of any recovery received in cash or in kind from any third party unrelated in ownership interest to the Sure Grow Companies and/or to the Sure Grow Shareholders as compensation for the damage or loss caused by the act, omission, fact, or circumstances giving rise to such claim for indemnification. (c) Tax Indemnity. The Sure Grow Shareholders, severally in proportion to their respective interests shown on Schedule 8.1(a) and not jointly, shall pay, indemnify, and hold harmless the D&PL Companies and any of the Sure Grow Companies (as may be in existence after the Closing Date) and their successors and assigns, from and against all liabilities (a) for all assessed and paid Taxes relating to taxable periods ending on or before June 30, 1995, for API, EBS and MSI and taxable periods ending on or before August 31, 1995, for SGS, but less all amounts accrued for Taxes in the Audited Financial Statements of API, EBS and MSI prepared as of June 30, 1995, and the Audited Financial Statements of SGS as of August 31, 1995, and (b) for any penalties and interest assessed and paid on account of breach of the representa tions and warranties set forth in Section 7.20(c) (the foregoing are hereinafter referred to as "Indemnified Taxes"). The foregoing notwithstanding, (i) the Sure Grow Shareholders shall have no liability for any Taxes, attributable to periods of the Sure Grow Companies beginning after August 31, 1995, for SGS and after June 30, 1995, for API, EBS and MSI, except as expressly provided for in subpart (b) of the immediately preceding sentence and (ii) the Sure Grow Shareholders shall have no obligation or liability hereunder for any increase in a Tax or Taxes reflected in a tax return of any of the Sure Grow Companies due on filings prior to Closing Date or for filing periods since the end of the respective 1995 fiscal years of each of the Sure Grow Companies that is (a) occasioned by an amendment by the D&PL or the Sure Grow Companies after the Closing Date (other than an amendment that is required by a federal, state, or local taxing agency or authority and with respect to which the Sure Grow Shareholders shall have been given all of the rights referred to in Section 8.1(d)), (b) by a change in the method of accounting or in the treatment of tax items caused by D&PL or the Sure Grow Companies after the Closing Date or (c) by elections or other affirmative actions by D&PL or the Sure Grow Companies, after Closing Date, pertaining to such tax returns of the Sure Grow Companies. Notwithstanding anything contained herein to the contrary, any federal, state, or local income tax, capital gain tax, excise, sales, transfer stamp, documentary and other similar taxes (together with any interest, additions to the tax, or penalties with respect thereto) resulting from the transfer and exchange of the shares of stock of EBS, API and MSI owned by the EBS Shareholders, the API Shareholders and the MSI Shareholders, respectively, to D&PL1, D&PL2 and D&PL3, pursuant to the terms and conditions of this Agreement, shall be borne by the respective EBS Shareholders, the API Shareholders and the MSI Shareholders. In the event any dispute between the Indemnified Party and the Sure Grow Shareholders concerning a claim under this Section 8.1(c) cannot be resolved after good faith negotiations not to exceed, in the aggregate and whether continuous or not, ninety (90) calendar days, the dispute shall be referred to Ernst & Young or another "Big Six" accounting firm (but not Arthur Andersen LLP or any other firm that any of the Sure Grow Shareholders, the Sure Grow Companies or the D&PL Companies have employed within the immediately preceding five (5) years) which is mutually acceptable to the D&PL Companies and to the Sure Grow Shareholders. The accounting firm thus engaged, acting as an arbitrator, shall determine the amount, if any, of Indemnified Taxes due from the Sure Grow Shareholders to the Sure Grow Companies and/or the D&PL Companies. Each party to such arbitration shall bear its own expenses and the parties shall share the cost of the arbitrator's services ratably according to the arbitrator's decision on the issues in dispute. For purposes of the calculation of any indemnity obligations of the Sure Grow Shareholders under this Section 8.1(c), interest, penalties, or additions to Taxes accruing after the Closing Date with respect to a liability for Indemnified Taxes for which the Sure Grow Shareholders shall indemnify the Sure Grow Companies or the D&PL Companies shall be deemed to be attributable to a taxable period ending on or before the Closing Date. (d) Tax Contest. Following the Closing Date, the D&PL Companies and/or the Sure Grow Companies shall give prompt written notice to the Indemnification Representative of all audits, examinations or proceedings (individually, a "Tax Contest") with respect to the Sure Grow Companies that are related to the liability for any Taxes for which the Sure Grow Shareholders could be required to indemnify the D&PL Companies and/or the Sure Grow Companies pursuant to Sections 8.1(c) and (d). The Sure Grow Shareholders, through the Indemnification Representative, shall be entitled but not required to control and conduct those specific aspects of a Tax Contest that involve Indemnified Taxes. Costs of any Tax Contest (or portion thereof) shall be borne by the party controlling such Tax Contest (or portion thereof). The Sure Grow Shareholders' right to control and conduct a Tax Contest (or portion thereof) shall be limited to amounts in dispute which would be paid by the Sure Grow Shareholders hereunder. With respect to a Tax Contest (or portion thereof) which the Sure Grow Shareholders are entitled to control, the Sure Grow Shareholders shall have the right (but only to the extent such right does not materially impair the rights of the Sure Grow Companies or the D&PL Companies with respect to aspects of any Tax Contest (or portion thereof) which the Sure Grow Companies or the D&PL Companies are entitled to control) to determine, in their sole discretion, (i) the forum, administrative or judicial, in which to contest any proposed adjustment, (ii) the attorney and/or accountant to represent the tax payer(s) in the Tax Contest, (iii) whether or not to appeal any decision of any administrative or judicial body, and (iv) whether to settle any such Tax Contest. The D&PL Companies shall deliver to the Sure Grow Shareholders any power of attorney required to allow the Sure Grow Shareholders and their counsel to represent the Sure Grow Companies and/or the D&PL Companies in connection with the Tax Contest and shall use their good faith reasonable efforts to provide the Sure Grow Shareholders with such assistance as may be reasonably requested by the Sure Grow Shareholders in connection with the Tax Contest. Notwithstanding the preceding, the Sure Grow Shareholders shall conduct such Tax Contest in a reasonable manner with respect to any liability for Indemnified Taxes for which the Sure Grow Companies and/or the D&PL Companies may be liable. The Sure Grow Shareholders and the D&PL Companies shall consult in good faith with each other with respect to the conduct of, and before entering into any settlement of, any Tax Contest, and neither the Sure Grow Shareholders nor the Sure Grow Companies and the D&PL Companies shall consent nor agree to the settlement of any Tax Contest that may have an adverse impact on the liability for Taxes of the opposite parties without the prior written consent of the opposite parties which consent shall not be unreasonably withheld (provided that this limitation shall, with respect to the Sure Grow Companies and the D&PL Companies, apply only to settlements of Tax Contests for which the Sure Grow Companies and the D&PL Companies are indemnified pursuant to Section 8.1(c)). Any provision of this Section 8.1(d) notwithstanding, the Sure Grow Shareholders shall have the right to control the tax contest only if there is sufficient stock in the escrow account pursuant to Section 8.6 at the assigned value thereof to pay any asserted tax, interest and penalty. 8.2 Obligation of the D&PL Companies to Indemnify. (a) Indemnity Obligations. The D&PL Companies shall indemnify, defend, and hold harmless each Sure Grow Shareholder and Sure Grow Principal, who prior to Closing was an officer, director or employee of one or more of the Sure Grow Companies, and his or her heirs, personal representatives, successors, and assigns, from and against any actual losses, liabilities, damages or deficiencies (including, without limitation, interest, penalties, disbursements and reasonable, actual and necessary attorneys' fees and expenses) incurred by such Sure Grow Shareholder or Sure Grow Principal solely in his or her capacity as an officer, director, or Employee of the Sure Grow Companies, and solely in accordance with claims timely and properly asserted in accordance with Section 8.4 and arising out of the operation by the Sure Grow Companies and/or the D&PL Companies of the Sure Grow Cotton Planting Seed Business as conducted after the Closing Date or otherwise arising out of this Agreement, solely with regard to, claims based on or due to: (i) any breach of any representation or warranty or failure to perform any covenant or agreement of the D&PL Companies (excluding those representations in Section 6.10 which pertain to matters with the knowledge or control of the Sure Grow Companies and/or the Sure Grow Shareholders for which the D&PL Companies shall have no liability to the Sure Grow Shareholders and excluding breach of any of the representations or warranties contained in Sections 6.10(d), (f), (g), (h), (i) and (m) with regard to which all Sure Grow Shareholders shall have any remedies available by law) contained in this Agreement or in any document or other writing delivered hereunder; (ii) any liability to then current or then former Employees of the Sure Grow Companies arising from their employment, after the Closing Date, by the Sure Grow Companies and/or the D&PL Companies, or the termination of such employment, after the Closing Date, by the Sure Grow Companies and/or the D&PL Companies, including but not limited to damages resulting from any failure by the Sure Grow Companies and/or the D&PL Companies to comply with the Discrimination Laws after the Closing Date, provided, however, that if such damages result, in part, from the failure of the Sure Grow Companies to comply with Discrimination Laws prior to the Closing Date and such failure to comply with Discrimination Laws continues after the Closing Date, then the indemnification by the D&PL Companies shall be limited to an equitable proportion of the total liability to such Employee(s) which takes into account the responsibility of the D&PL Companies and/or the Sure Grow Companies for such failure to comply with Discrimination Laws after the Closing Date and the conduct of the Sure Grow Companies with respect to such Employee(s) prior to the Closing Date; (iii) employee benefit plan obligations to Employees of the Sure Grow Companies arising from their employment, after the Closing Date, with the Sure Grow Companies and/or the D&PL Companies, or the termination of such employment; (iv) any Taxes, or other taxes, interest and penalties due for activities of the Sure Grow Companies after the Closing Date; (v) any D&PL Products Liability arising at any time with respect to any product sold, handled, conditioned and distributed by the Sure Grow Companies and/or the D&PL Companies after the Closing Date; (vi) infringement of a patent, PVPA certificate, unfair competition, or trade secret misappropriation, any of which arise, directly or indirectly, from acts or omissions of the D&PL Companies or the Sure Grow Companies occurring after the Closing Date; (vii) contamination by Hazardous Materials, if any, of the soil or ground waters or other violations of applicable Environmental Laws arising from conditions at the Real Property caused by activities of the D&PL Companies and/or Sure Grow Companies after Closing Date; and (viii) any other contract, tort or other claims arising solely from the operation by the Sure Grow Companies and/or the D&PL Companies of the Sure Grow Cotton Planting Seed Business arising from events or activities after Closing Date. (b) Limitation on Indemnity Obligations. Notwithstand ing anything contained in this Agreement to the contrary, the following limitations shall apply to the indemnification obliga tions of the D&PL Companies under Section 8.2(a): (i) The D&PL Companies shall not be liable for indemnification under Section 8.2(a) for breaches of representa tions and warranties or failures to perform covenants and agree ments, unless and until the aggregate of the actual expenses, losses and/or damages arising out of or attributable to all such breaches or failures (excluding breaches of the representations and warranties in Section 6.3) exceeds, in the aggregate, $100,000.00 and then the D&PL Companies shall be liable for only those aggregate losses and/or damages which exceed $100,000.00. (ii) The amount of any losses and/or damages otherwise payable to a Sure Grow Shareholder or Sure Grow Principal or any of his or her heirs, personal representatives, successors and assigns, hereunder shall be reduced by the total of (a) the amount of any insurance proceeds actually received by the subject Sure Grow Principal or his or her heirs, personal representatives, successors and assigns as compensation for the damage or loss caused by the act, omission, fact or circumstances giving rise to such claim for indemnification, (b) the tax refund or tax benefit as a federal, state, or local tax deduction received by the subject Sure Grow Shareholder or Sure Grow Principal by virtue of the use of such loss and/or damages as a federal, state, or local tax deduction, and (c) the amount of any recovery received in cash or in kind from any third party unrelated in ownership interest to the D&PL Companies, as compensation for damage or loss caused by the act, omission, fact, or circumstances giving rise to such claim for indemnification. 8.3 Indemnification Representative. (a) The Sure Grow Shareholders and the Sure Grow Principals shall be deemed to have appointed, as of the closing, Watt A. Ellis, III (the "Indemnification Representative") as their representative for purposes of the indemnification obligations set forth in this Article 8 and as attorney-in-fact and agent for and on behalf of each of the Sure Grow Shareholders and the Sure Grow Principals, with authority to take any and all actions and make any and all decisions required or permitted to be taken or made by them under this Article 8 (including the settling of claims). The Indemnification Representative shall have and is hereby granted by each of the Sure Grow Shareholders and the Sure Grow Principals full power and authority as agent of each of the Sure Grow Shareholders and the Sure Grow Principals to represent the Sure Grow Shareholders and the Sure Grow Principals, and their succes sors, heirs, representatives, and assigns with respect to all matters arising under this Article 8 and any other matters concerning the Transaction contemplated by this Agreement after the closing, and all actions taken by the Indemnification Representa tive in accordance with this Agreement shall be binding upon the Sure Grow Shareholders and the Sure Grow Principals, and their successors, heirs, representatives and assigns as if expressly confirmed and ratified in writing by each of them. (b) No Indemnification Representative shall incur any liability with respect to any action or inaction taken by him except those involving his own willful misconduct or gross negligence. The Indemnification Representative may, in all questions arising under this Article 8, rely on the advice of counsel or certified public accountant and for anything done, omitted or suffered in good faith by the Indemnification Represen tative based on such advice, the Indemnification Representative shall not be liable to anyone. Nothing set forth in this Section 8.3 shall in any way relieve the Sure Grow Shareholders and the Sure Grow Principals in their capacities as Sure Grow Shareholders or Sure Grow Principals of their obligations under this Article 8. (c) In the event of the death or permanent disability of the Indemnification Representative, or his resignation as Indem nification Representative, a successor Indemnification Representa tive shall be appointed, by the Sure Grow Shareholders, acting in the case of any disagreement among them, by a vote of Sure Grow Shareholders with an excess of 50% of the total indemnification liability as set forth in Schedule 8.1(a). Prompt written notice of such appointment shall be delivered to the D&PL Companies. Pending the appointment of a successor Indemnification Representa tive, the Sure Grow Shareholders with an excess of 50% of the indemnification liability as set forth in Schedule 8.1(a) shall have the power and authority to act as Indemnification Representa tive under this Article 8. (d) Any action taken or decision made by the Indemnifi cation Representative shall be deemed duly evidenced by a written instrument executed by the Indemnification Representative. 8.4 Notice of Claim by Third Party. Should any claim by a third party (including any Governmental Body) covered by the foregoing indemnities be asserted against any Party entitled to any indemnity under this Article 8 (the "Indemnified Party"), if the Indemnified Party is one of the D&PL Companies, the Sure Grow Companies, their officers, directors, employees, successors or assigns, it shall notify the Indemnification Representative and, if the Indemnified Party is anyone else, it shall notify one or more of the Parties having a duty to indemnify it under this Article 8 hereto (the "Indemnifying Party") in writing within not more than thirty (30) days after actual notice of such claim is first received, and shall give the Indemnifying Party, or the Indemnifi cation Representative in the case of the Sure Grow Shareholders or Indemnifying Party, an opportunity to defend the same, and the Indemnified Party shall extend reasonable cooperation to the Indemnifying Party, or the Indemnification Representative, as applicable, in connection with such defense. The Indemnified Party, or the Indemnification Representative, as applicable, may elect, by notice in writing, to continue to participate through its own counsel, at its expense, but the Indemnifying Party, or the Indemnification Representative, as applicable, shall have the right to control any litigation or settlement negotiations. However, the Indemnifying Party, or the Indemnification Representative, as applicable, may not settle any litigation or claim without the consent of the Indemnified Party, or the Indemnification Represen tative, as applicable, which shall not be unreasonably withheld, provided, however, that no consent shall be required if the settlement involves the payment of money, in an amount not in excess of the lesser of ten percent (10%) of the value of the Escrow Funds or Fifty Thousand and no/100 Dollars ($50,000.00), both with regard to any particular settlement payment and all settlement payments in the aggregate, by the Indemnifying Party only. In the event that the Indemnifying Party, or the Indemnifi cation Representative, as applicable, shall have negotiated a settlement of any litigation or claim, which proposed settlement is substantially final and unconditional as to the parties thereto, other than the consent of the Indemnified Party, or the Indemnifi cation Representative, as applicable, hereunder, and the Indemni fied Party, or the Indemnification Representative, as applicable, shall unreasonably refuse to consent to such settlement, the liability of the Indemnifying Party hereunder, upon ultimate disposition of such litigation or claim, shall be limited to the amount of the proposed settlement which was not accepted or rejected and any and all reasonable, actual and necessary expenses, including attorneys' fees, occurring subsequent to the date of such proposed settlement. Upon the request of the Indemnifying Party, or the Indemnification Representative, as applicable, said Indemnified Party shall post a bond sufficient to cover any award as a result of said litigation or claim. In the event that the Indemnifying Party, or the Indemnification Representative, as applicable, fails to defend a claim hereunder within a reasonable time, the Indemnified Party, or the Indemnification Representative, as applicable, shall be entitled to assume the defense thereof, and the Indemnifying Party shall be liable to repay the Indemnified Party for all of its reasonable, actual and necessary expenses incurred in connection with said defense (including reasonable attorneys' fees, court costs and authorized settlement payments or settlement payments not in excess of ten percent (10%) of the value of the Escrow Fund, both with regard to any particular settlement payment and all settlement payments in the aggregate). 8.5 Notice of Loss. Should any loss, other than a claim by a third party, covered by the foregoing indemnities be sustained by any party entitled to be indemnified against such loss under this Article 8, the Indemnified Party or the Indemnification Representa tive, as applicable, shall give written notice, in the same manner as provided with respect to notices of third party claims set forth in Section 8.4 within not more than sixty (60) days after the Indemnified Party verifies the existence of such loss. Within thirty (30) days thereafter, the Indemnifying Party, subject to receipt of reasonable verification of the existence and the amount of such loss, shall indemnify the Indemnified Party by paying the Indemnified Party the amount of money required to fully compensate the Indemnified Party for the amount of such loss. 8.6 Escrow Fund. (a) As security for their indemnity obligations under this Article 8, on Closing Date upon consummation of the Trans action, the Sure Grow Shareholders shall place into an escrow account with Escrow Holder, as escrow agent, One Hundred Fifty-Five Thouand Four Hundred Seventy (155,470) shares of D&PL Common Stock. Such shares shall be held on the terms and conditions and for such period(s) of time after the Closing Date, and disposed of, all as provided for in the Escrow Agreement attached as Schedule 8.6(a). The rights of the D&PL Companies, the Sure Grow Companies, and the Sure Grow Shareholders under the Escrow Agreement shall be cumulative with, and not in lieu of, all other rights and remedies of the D&PL Companies, the Sure Grow Companies, and the Sure Grow Shareholders. (b) Notwithstanding any other provisions of this Article 8, the obligations of EBS under that certain promissory note to Farm Credit Bank of Texas (the "Bank"), dated June 20, 1994 (the "FCB of Texas Note"), shall be satisfied as provided in Schedule 8.6(b) hereto prior to the invocation of any other remedies. 8.7 Limitations on Claims for Indemnity. (a) Any other provisions hereof notwithstanding, any claim for indemnity under this Article 8 must be asserted by written notice given not later than (i) in the case of claims involving Taxes, thirty (30) days after the latest date on which the statute of limitations applicable to the right of the applica ble taxing authority's right to assert a claim for such Taxes expires, (ii) with respect to claims for indemnity under Section 8.1(a)(ii) and Section 8.2(a)(ii), thirty (30) days after the date on which the statute of limitations applicable to the claim against the Indemnified Party expires, (iii) with respect to claims for indemnification for breach of representations and warranties under Sections 7.3 and 7.8, within the applicable statute of limitations on claims under written contracts, and (iv) with respect to all other claims for indemnity, within eighteen (18) months after Closing Date. (b) Notwithstanding anything contained in this Agreement to the contrary, in the event that any Indemnified Party asserts a claim in accordance with this Article 8 before incurring actual losses or damages with respect thereto or before receiving a written notice of claim demanding a payment or action that reasonably could constitute or result in a loss or damages, such claim asserted by the Indemnified Party shall be of no force and effect hereunder and shall not entitle such Indemnified Party, its successors and assigns to any indemnification rights under this Agreement unless, within three (3) months in the case of a claim not involving a Governmental Body, or six (6) months in the case of a claim involving a Governmental Body, such Indemnified Party either (i) gives subsequent notice of claim within the time period applicable to such claim or (ii) such Indemnified Party, or its successor or assigns, has either actually incurred a loss or damages related to such claim or has received a written notice or claim from a third party demanding payment or other action that would constitute or result in a loss or damages. (c) If written notice of a claim based on a breach of a representation or warranty or failure to perform a covenant or agreement or otherwise covered by this Article 8 is given in accordance with this Article 8 before expiration of the applicable period, then (notwithstanding the expiration of such time period) the representation, warranty, covenant or agreement applicable to such claim shall survive until final resolution of the claim, but only for the purposes of the resolution of the claim as to which notice was timely given. After expiration of the applicable time limits set forth above, no Indemnifying Party shall have any duty of indemnification other than for claims as to which proper written notice has been previously and timely given under this Agreement. 8.8 Survival. The representations and warranties of the Sure Grow Companies, the Sure Grow Shareholders and the D&PL Companies set forth in this Agreement shall survive the closing and the consummation of the Transaction contemplated hereby, provided that each such representation or warranty shall expire on the date that the time for asserting a claim for indemnification for breach of that certain representation or warranty as set forth in Section 8.7(a). 8.9 Exclusivity of Remedies. The indemnity provisions of this Article 8 shall be the exclusive remedy of the D&PL Companies and the Sure Grow Companies (after closing) against the Sure Grow Companies, the Sure Grow Shareholders and/or the Sure Grow Principals for breaches of the representations, warranties and covenants of the Sure Grow Companies, the Sure Grow Shareholders and/or the Sure Grow Principals contained in this Agreement and its Schedules for which remedies are granted under this Article 8. The indemnity provisions of this Article 8 shall be the exclusive remedy of the Sure Grow Companies (before closing), and the Sure Grow Shareholders and the Sure Grow Principals against the D&PL Companies for breaches of the representations, warranties and covenants of the D&PL Companies contained in this Agreement and its Schedules for which remedies are granted under this Article 8. This Section 8.9 shall not, however, apply to claims arising from fraud and/or fraudulent misrepresentation or concealment of material facts. ARTICLE 9. CLOSING 9.1 Place of Closing. The closing of the Transaction provided for by this Agreement shall be held at Memphis, Tennessee, or at such other place as may be mutually agreed upon by Authorized Representatives of the D&PL Companies and the Sure Grow Companies. 9.2 Closing Date. The Closing Date for the Transaction provided for by this Agreement shall be the same date on which each of the Parties has executed this Agreement, as soon as and provided that all Conditions Precedent as set forth in Section 3.1(a) and Section 3.2(a) (specifically including, but not limited to, the delivery of the opinions described in Section 3.1(a)(ii), Section 3.1(a)(vi) and Section 3.2(a)(iii)) have been fulfilled or the fulfillment thereof has been waived by the applicable Parties; provided that if on the Closing Date thus established (or any agreed extension thereof), the Conditions Precedent as specified in Article 3 are not then fulfilled or the fulfillment thereof has not been waived by the applicable Parties, the Closing Date may be delayed by mutual written agreement of the Authorized Representa tives of the D&PL Companies and the Sure Grow Companies until the first date on which such Conditions Precedent for closing have been fulfilled or the fulfillment thereof has been waived by the applicable Parties. ARTICLE 10. TERMINATION 10.1 Termination of Agreement. The Parties may terminate this Agreement prior to the closing as provided below: (a) The Parties may terminate this Agreement by mutual written consent. (b) Unless the Parties through their Authorized Representatives have mutually agreed to delay the Closing Date as provided in Section 9.2, the Sure Grow Companies and the Sure Grow Shareholders may terminate this Agreement by giving written notice to the D&PL Companies in the event that as of 5:00 p.m. on Closing Date any of the Conditions Precedent set forth in Section 3.2(a) has not been fulfilled or the fulfillment thereof has not been waived by the applicable Parties, and the D&PL Companies may terminate this Agreement by giving written notice to the Sure Grow Companies and the Sure Grow Shareholders in the event that as of 5:00 p.m. on Closing Date any of the Conditions Precedent set forth in Section 3.1(a) has not been fulfilled or the fulfillment thereof has not been waived by the application Parties; provided, however, that this right to terminate shall not apply to any Party who has caused or contributed to the failure of the Transaction to close on such date. 10.2 Effect of Termination. If this Agreement is terminated pursuant to Section 10.1, all obligations of the Parties hereunder shall terminate without any liability of any Party to any other Party (except for liability for breach of this Agreement arising before such termination); provided that the Confidentiality Agreement shall survive any such termination and provided further, if Section 3.3 is applicable, D&PL Companies shall reimburse the Sure Grow Companies, the Sure Grow Principals and the Sure Grow Shareholders an amount equal to the Transaction Costs. ARTICLE 11. ADDITIONAL COVENANTS AND AGREEMENTS The Parties covenant and agree as follows: 11.1 Expenses of Transaction. Except for the Transaction Costs which the D&PL Companies shall pay to the Sure Grow Companies and Sure Grow Shareholders in the event the Transaction contemplat ed by this Agreement does not close under conditions set forth in Section 3.3, D&PL shall be billed for and shall bear the direct and indirect expenses incurred by the D&PL Companies, and the Sure Grow Shareholders shall be billed for and shall bear the direct and indirect expenses incurred by the Sure Grow Shareholders and the Sure Grow Companies, in connection with the negotiation and preparation of this Agreement and the consummation and performance of the Transaction contemplated hereby, including, without limitation, attorneys' fees and expenses, accountants' fees and fees of other professionals conducting due diligence audits and inspections on behalf of the respective parties, except that the Sure Grow Companies shall be billed for and shall pay the costs of professional services rendered by Wilmer, Cutler & Pickering for legal advise (and reasonable expenses) in connection with this Transaction up to an aggregate amount of $10,000.00. Without regard to the provisions of Section 8.1, but subject, when applicable, to other limitations set forth in this Agreement, the Sure Grow Shareholders shall be responsible for their own income, capital gains, transfers, gross receipts, use and all other Taxes, if any, and as limited in this Agreement, in connection with the Transaction contemplated hereby; costs of remediating violations of Environmental Laws, if any; providing title insurance commitments and clearing title defects as set forth herein, if any; and any other expenses for which the Sure Grow Shareholders are responsible under the terms of this Agreement. Without regard to the provi sions of Section 8.2(b)(i), the D&PL Companies shall be responsible for all filing and recording fees of whatever kind, documentary transfer tax stamps, title insurance premiums, and other charges imposed by title insurers and title insurance company examining attorneys in connection with issuance of the policies of title insurance obtained by the D&PL Companies in connection with the Transaction contemplated hereby and all other costs and expenses of closing not specifically identified as that of the Sure Grow Shareholders. 11.2 Further Assistance. The Sure Grow Shareholders will assist the D&PL Companies in effecting the complete Transaction, including, without limitation, when reasonable and necessary, the transfer of title, if applicable, to Real Property, Equipment, and Inventory, and assignment of any Permits, Contracts, License Agree ments, certificates, applications, registrations, or other tangible or intangible property rights. The Sure Grow Shareholders who are employed by the Sure Grow Companies or the D&PL Companies after the closing will work with the Sure Grow Companies and the D&PL Companies in any reasonable manner and only while so employed, and on terms to be determined but consistent with the purpose and intent of this Agreement, to transfer and retain for the Sure Grow Companies and the D&PL Companies after the Transaction the patronage of customers of the Sure Grow Companies and any other advantageous business relationships of the Sure Grow Cotton Planting Seed Business. 11.3 No Publicity. No publicity release or announcement concerning this Agreement or the Transaction contemplated hereby shall be issued prior to closing, nor thereafter, without advance written approval of such issuance, and of the form and substance thereof, by each of the Parties hereto which approval, if requested for a post-closing release, shall not be unreasonably withheld; provided, however, that any Party may timely make any public disclosure it believes in good faith is required by law or regulation or is necessary or appropriate to facilitate the closing of the Transaction (in which case the disclosing party shall so advise the other Parties in writing and provide them with a copy of the proposed release as far in advance of disclosure as is reasonably possible). 11.4 Further Assurances. Each of the Parties shall execute such documents and other papers and perform such further acts as reasonably may be required or desirable to carry out the provisions hereof and the Transaction contemplated hereby. 11.5 Bulk Sales Laws. The Parties agree that no actions are necessary to comply with the bulk sales laws of any jurisdiction with respect to the Transaction contemplated by this Agreement. 11.6 No Partnership, Joint Venture or Third Person Beneficia ries. This Agreement shall not create any partnership, joint venture, or other similar arrangement between the Sure Grow Companies, the Sure Grow Shareholders and the D&PL Companies until and unless the Transaction is consummated. Until closing, the Sure Grow Companies and the D&PL Companies shall continue to conduct their existing business as they in their sole judgment and discretion deem advisable, subject only to specific covenants and agreements expressly set forth in this Agreement. No term or provision of this Agreement is for the benefit of any person who is not a named party hereto (including, without limitation, any Employee, lender or broker) and no such person shall have any right or cause of action hereunder. 11.7 Confidentiality Obligations. From and after the Closing Date, the Sure Grow Companies and the D&PL Companies shall cause their respective directors, officers, Employees, and advisors, to continue to treat all information or documents received from the other Party during the negotiation of this Agreement that concern such other Party's business, assets, operations and financial condition as confidential as provided in the Confidentiality Agreement. The Sure Grow Companies and the Sure Grow Shareholders and the D&PL Companies shall not use confidential information or documents obtained from any other Party for any purpose except in furtherance of the Transaction contemplated hereby. ARTICLE 12. MISCELLANEOUS 12.1 Risk of Loss. The risk of loss of any asset of the Sure Grow Cotton Planting Seed Business shall be borne by the Sure Grow Companies until closing on the Closing Date. In the event of destruction of any assets by fire or other casualty not fully covered by insurance, the Consideration shall be adjusted by the amount of the net uninsured loss resulting from such casualty (as determined by an independent appraiser selected by the Sure Grow Shareholders subject to the approval of the D&PL Companies, which approval will not be unreasonably withheld). 12.2 Authorized Representatives and Notices. Each of the Parties to this Agreement hereby authorize the person listed below (or his or her replacement designated as provided below) to act as its Authorized Representative to take all actions on such Party's behalf as specified in this Agreement and, except as may be otherwise provided in Section 8.4, to receive notices and other communications on behalf of such Party. Any notice or other communication required or which may be given hereunder shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, postage prepaid, or by overnight courier, or acknowledged electronic facsimile to the Authorized Representatives as follows: Authorized Representative for any or all of the D&PL Companies: Murray Robinson Delta and Pine Land Company One Cotton Row Scott, Mississippi 38772 with copy to: Jerome C. Hafter, Esq. Jenny M. Virden, Esq. Lake Tindall, LLP 127 South Poplar Street Post Office Box 918 Greenville, Mississippi 38701 Authorized Representative for any or all of the Sure Grow Companies, the Sure Grow Shareholders, or the Sure Grow Principals: W. A. Ellis, III Sure Grow Seed, Inc. Route 1, Box 310 Centre, Alabama 35930 with copy to: Bruce L. Gordon, Esq. Linda J. Peacock, Esq. Gordon, Silberman, Wiggins & Childs, P.C. 1400 South Trust Tower Birmingham, Alabama 35203 Each such Authorized Representative may designate a replacement Authorized Representative and/or change the address to which Notices shall be sent by notice given in according with this provision. 12.3 Entire Agreement; Conflicting Provisions. This Agreement (including the Schedules and Exhibits hereto) contains the entire agreement between the Parties with respect to the transaction contemplated herein and supersedes any prior and contemporaneous correspondence, discussions, negotiations, and agreements, written or oral, with respect thereto, except for the Confidentiality Agreement which shall remain in full force and effect. No representation or warranty is made by any of the Sure Grow Companies, the Sure Grow Shareholders or the D&PL Companies except as set forth in this Agreement and in the Confidentiality Agree ment. 12.4 Knowledge. The terms "knowledge" or "best knowledge" of a Party (or words or phrases of similar import) as used in this Agreement shall mean the actual knowledge of that Party, or in the case of a corporate entity of any of its officers and directors. Knowledge of the D&PL Companies means knowledge of any one or more of the D&PL Companies. Knowledge of the Sure Grow Companies means knowledge of any one or more of the Sure Grow Companies. Knowledge of the Sure Grow Shareholders means knowledge of any one of more of the Sure Grow Shareholders. Knowledge of the Sure Grow Companies and the Sure Grow Shareholders means knowledge of any one or more of the Sure Grow Companies or the Sure Grow Shareholders. 12.5 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument s igned by all Parties hereto or, in the case of a waiver, by each Party waiving compliance. No delay on the part of any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any waiver by any Party of any right, power, or privilege hereunder, nor any partial exercise of any right, power, or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 12.6 Arbitration and Forum Selection. Any claim or dispute arising out of or relating to this Agreement, excluding indemnity claims arising under Section 8.1(c) of this Agreement, which is not disposed of by agreement of the Parties shall be determined by three (3) arbitrators selected in accordance with the Rules of the American Arbitration Association. The arbitration shall be conducted in Memphis, Tennessee, and in accordance with the Rules of the American Arbitration Association. The findings of such arbitrators shall be final and binding on the Parties. The non- prevailing party shall pay the prevailing party's reasonable and actual attorney's fees and expenses as awarded by the arbitrators. The Parties agree that the federal and state courts sitting in Memphis, Tennessee, shall be the exclusive forum for enforcement of arbitration awards and/or litigation arising from this Agreement, its negotiation, execution or performance, to the exclusion of all other courts. All Parties agree to submit to the jurisdiction of arbitration panels and/or state or federal courts sitting in Memphi s, Tennessee. 12.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such State. 12.8 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, successors and assigns. No Party may assign any of its rights or obligations hereunder without the prior written consent of every other Party hereto, which consent may be unreason ably withheld. No assignment, if consented to, shall relieve the assigning Party of any of its obligations or liabilities hereunder unless expressly agreed to otherwise in writing by all Parties hereto. 12.9 Invalidity of Particular Provision. If any provision of this Agreement shall be held to be invalid, illegal, or unenforce able in any respect, the remainder of this Agreement shall not be affected thereby, and this Agreement shall be legal and valid and be enforced to the fullest extent permitted by law as if such invalid, illegal, or unenforceable provision had never been included herein, unless such invalidity, illegality or unenforce ability materially frustrates a major purpose of this Agreement, in which event this Agreement shall be voidable upon election by any adversely affected Party. 12.10 Specific Enforcement. This Agreement shall be binding upon each signatory hereto and shall be specifically enforceable, the Parties recognizing that monetary damages would be inadequate to compensate a Party injured by the breach thereof. 12.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 12.12 Schedules. The Schedules to this Agreement are hereby made a part of this Agreement as if set forth in full herein and any information contained herein or on any Schedule attached hereto shall be deemed to be constructively cross-referenced herein and listed on all Schedules. 12.13 Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation of this Agreement. 12.14 Gender and Number. When used herein the male, female and neuter gender shall include each other gender, the singular number shall include the plural, and the plural number shall include the singular. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. DELTA AND PINE LAND COMPANY By:___________________________ Its:__________________________ D&PL1 By:___________________________ Its:__________________________ D&PL2 By:___________________________ Its:__________________________ D&PL3 By:___________________________ Its:__________________________ ARIZONA PROCESSING COMPANY, INC. By:___________________________ Its:__________________________ ELLIS BROTHERS SEED, INC. By:___________________________ Its:__________________________ MISSISSIPPI SEED, INC. By:___________________________ Its:__________________________ SURE GROW SHAREHOLDERS ______________________________ W. A. ELLIS, JR. ______________________________ W. A. ELLIS, III ______________________________ JAMES E. ELLIS ______________________________ EARL E. DYKES ______________________________ RICHARD B. FLOWERS, JR. ______________________________ CARL R. RUSSELL ______________________________ BERT S. ELLIS ______________________________ JOE HALL ______________________________ SUSIE P. CARSON ______________________________ NANCY R. ARNOLD ______________________________ DAVID MATTSON FLOWERS ______________________________ JANET CAMPBELL FLOWERS MELTON SURE GROW PRINCIPALS: ______________________________ RICHARD B. FLOWERS ______________________________ D. C. PARKER -----END PRIVACY-ENHANCED MESSAGE-----