ASSET PURCHASE AGREEMENT

 

TABLE OF CONTENTS

				Page
		ARTICLE I
		CONSTRUCTION
Section 1.01.		Construction and Interpretation		1
		ARTICLE II
		TRANSFER OF ASSETS AND RIGHTS
Section 2.01.		Purchase and Sale of Assets		1
Section 2.02.		Excluded Assets		3
Section 2.03.		Assumed Forward Looking Obligations; Excluded Liabilities		4
Section 2.04.		Purchase Price		4
Section 2.05.		Closing		4
Section 2.06.		Payment of Purchase Price		4
Section 2.07.		Purchase Price Adjustment		5
Section 2.08.		Allocation of Purchase Price		6
		ARTICLE III
		REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01.		Organization		6
Section 3.02.		Authorization		6
Section 3.03.		Noncontravention		7
Section 3.04.		Litigation		7
Section 3.05.		Assumed Agreements		7
Section 3.06.		Customers		8
Section 3.07.		Hardware and Other Equipment		9
Section 3.08.		Software, Licenses and Data Bases		9
Section 3.09.		Intellectual Property		10
Section 3.10.		Supplies		11
Section 3.11.		St. Louis Facility		11
Section 3.12.		Compliance With Laws		11
Section 3.13.		Tax Matters		11
Section 3.14.		Financial Statements		11
Section 3.15.		Absence of Specified Changes		12
Section 3.16.		Title		13
Section 3.17.		Licenses and Permits		13
Section 3.18.		Consents and Approvals		14
Section 3.19.		Broker or Finders’ Fees		14
Section 3.20.		Employees; Compensation; Labor		14
Section 3.21.		Employee Benefit Plans		15

 

 

 

Section 3.22.		Insurance		15
Section 3.23.		Fair Value		15
Section 3.24.		Solvency		15
Section 3.25.		Disclosure		16
		ARTICLE IV
		REPRESENTATIONS AND WARRANTIES OF BUYER
Section 4.01.		Organization		17
Section 4.02.		Authorization		17
Section 4.03.		Noncontravention		17
Section 4.04.		Litigation		17
Section 4.05.		Broker or Finders’ Fees		17
		ARTICLE V
		ADDITIONAL AGREEMENTS
Section 5.01.		Conduct of Business		17
Section 5.02.		Employee Leasing Agreement		18
Section 5.03.		Product Marketing Agreement		18
Section 5.04.		Subcontract		18
Section 5.05.		Public Announcements		18
Section 5.06.		No Solicitation		19
Section 5.07.		Representations and Warranties		19
Section 5.08.		Disclosure Schedules		19
Section 5.09.		Due Diligence		20
		ARTICLE VI
		POST-CLOSING COVENANTS
Section 6.01.		Further Action		20
Section 6.02.		Consents and Authorizations		20
Section 6.03.		Litigation Support		20
Section 6.04.		Transition		21
Section 6.05.		Confidentiality		20
Section 6.06.		Noncompetition/Nonsolicitation Agreement		22
Section 6.07.		Access to Records After the Closing		22
Section 6.08.		RWIS Data Access		23
		ARTICLE VII
		CONDITIONS TO CLOSING
Section 7.01.		Conditions to Obligation of Buyer		23

 

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Section 7.02.		Conditions to Obligation of Seller		25
		ARTICLE VIII
		SURVIVAL AND INDEMNIFICATION
Section 8.01.		Survival		26
Section 8.02.		Indemnification		27
Section 8.03.		Time Limitation on Indemnification		28
Section 8.04.		Third Party Claims, Etc		28
Section 8.05.		Certain Other Indemnity Matters		28
		ARTICLE IX
		TERMINATION
Section 9.01.		Termination Events		29
Section 9.02.		Effect of Termination		30
		ARTICLE X
		MISCELLANEOUS
Section 10.01.		Notices		30
Section 10.02.		Amendments and Waivers		31
Section 10.03.		Expenses		31
Section 10.04.		Successors and Assigns; Assignment		31
Section 10.05.		Governing Law		31
Section 10.06.		Counterparts; Effectiveness		31
Section 10.07.		Entire Agreement; Third Party Beneficiaries		32
Section 10.08.		Severability		32
		ARTICLE XI
		DEFINITIONS
Section 11.01.		Definitions		32

 

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Exhibit A:		Employee Leasing Agreement
Exhibit B:		Product Marketing Agreement
Exhibit C:		Form of Subcontract
Exhibit D:		Opinion of Seller’s Counsel
Exhibit E:		Bill of Sale, Assignment and Assumption Agreement
Schedule 2.01(a):		Customer Contracts and Customers
Schedule 2.01(b):		Software and Licenses
Schedule 2.01(c):		Data Bases
Schedule 2.01(d):		IP Rights
Schedule 2.01(e):		Hardware
Schedule 2.01(f):		Other Equipment
Schedule 2.01(g):		Supplies
Schedule 2.01(h):		Other Agreements
Schedule 2.02(c):		Storm Beacon Customers
Schedule 2.02(d):		Excluded Hardware
Schedule 2.02(h):		Unrelated Assets
Schedule 2.07:		Customers Contracts Requiring Consent
Schedule 3.04:		Litigation
Schedule 3.06(b):		Customer Disputes
Schedule 3.06(c):		Customer Bankruptcies
Schedule 3.09:		Non-Exclusive IP Rights
Schedule 3.13:		Tax Matters
Schedule 3.14:		Financial Statements
Schedule 3.15:		Absence of Specified Changes
Schedule 3.16(a):		Title
Schedule 3.17:		Licenses and Permits
Schedule 3.18:		Consents and Approvals
Schedule 3.20:		Employment Matters
Schedule 3.21:		Employee Benefit Plans
Schedule 3.22:		Insurance
Schedule 5.04:		Subcontract Customers

 

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ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into this         day of June, 2006 by and between DATA TRANSMISSION NETWORK CORPORATION , a Delaware corporation (“Buyer”), and SURFACE SYSTEMS, INC. , a Missouri corporation (“Seller”).  Buyer and Seller are jointly referred to herein as the “Parties.”

W I T N E S S E T H :

WHEREAS, Seller is engaged in the business of selling information, software and other products related to the weather forecasting business and providing services related thereto (the “Business”); and

WHEREAS, Buyer desires to purchase substantially all of Seller’s assets associated with the Business, and Seller desires to sell such assets to Buyer.

NOW, THEREFORE, in consideration of the promises and the mutual representations, promises and covenants herein contained and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

ARTICLE I

CONSTRUCTION

Section 1.01.  Construction and Interpretation .  All capitalized words or terms herein have the meaning ascribed to them as immediately thereafter defined or as defined in Article XI hereof.  The captions or headings in this Agreement are for convenience of reference only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Agreement.  All references in this Agreement to particular Articles or Sections are references to the Articles or Sections of this Agreement, unless some other references are clearly indicated.  All accounting terms not specifically defined in this Agreement shall be construed in accordance with United States generally accepted accounting principles as in effect on the date hereof.  In this Agreement, unless the context otherwise requires, (a) words describing the singular number shall include the plural and vice versa, (b) words denoting any gender shall include all genders and (c) the word “including” shall mean “including, without limitation.”  This Agreement and the other instruments and documents to be delivered pursuant hereto shall not be construed more favorably against one Party than the other based on who drafted the same, it being acknowledged that all Parties hereto contributed meaningfully to the drafting of this Agreement.

ARTICLE II

TRANSFER OF ASSETS AND RIGHTS

Section 2.01.  Purchase and Sale of Assets .  Subject to the terms and conditions of this Agreement, Seller agrees to sell, convey, assign, transfer and deliver to Buyer as of the Effective Time, free and clear of any and all liabilities, claims, liens, restrictions on transfer and

 

encumbrances (except for the Forward Looking Obligations and Permitted Liens, if any), and Buyer agrees to purchase from Seller, all of the assets listed below, whether tangible, intangible, real, personal or mixed, and wherever located, all of which are sometimes collectively referred to in this Agreement as the “Purchased Assets”:

(a)           All rights of Seller in and to the customer agreements identified on Schedule 2.01(a) (the “Customer Contracts”), all rights of Seller to provide products and services to the customers who are parties to such agreements or customers who otherwise receive products and services related to the Business from Seller, each of whom is also identified on Schedule 2.01(a) (the “Customers”) and all rights to provide products and services to the prospective customers to whom proposals have been presented by Seller as of the Effective Time (the “Proposals”), a list of which shall be provided by Seller to Buyer as soon as reasonably practicable following the Closing;

(b)           All computer software systems and computer software licenses used and/or held by Seller in connection with or otherwise related to the Business, including but not limited to those identified on Schedule 2.01(b) (the “Software and Licenses”);

(c)           All data bases, including those storing weather graphics and related content, used in connection with or otherwise related to the Business, including but not limited to those identified on Schedule 2.01(c) (the “Data Bases”);

(d)           All intellectual property rights (e.g., trade names, trademarks, service marks, copyrights, patents, website addresses, website content, domain names, e-mail addresses, patent rights, licenses, brand names, trade secrets and trade dress) owned or used by Seller in the operation of the Business, including but not limited to those identified on Schedule 2.01(d) (the “IP Rights”);

(e)           All computer hardware owned by Seller and used in connection with or otherwise related to the Business, including but not limited to the computer hardware identified on Schedule 2.01(e) (the “Hardware”);

(f)            All other equipment, furniture and appurtenances owned by Seller and used in connection with or otherwise related to the Business, including but not limited to the equipment, furniture and appurtenances identified on Schedule 2.01(f) (the “Other Equipment”);

(g)           All inventory, supplies and expendable assets specifically related to the Business, including but not limited to those identified on Schedule 2.01(g) (the “Supplies”);

(h)           All rights of Seller under the contracts, commitments, leases, licenses and other agreements related to the Business (other than Customer Contracts) which are specifically identified on Schedule 2.01(h) (the “Other Agreements”);

(j)            All permits, licenses, franchises, consents or authorizations issued by, and all registrations and filings with, any Governmental Authority solely in connection with

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the Business, whenever issued or filed, excepting only those which by law or by their terms are non-transferable and those which have expired (the “Permits”);

(k)           All warranties and guarantees of manufacturers, contractors or suppliers which pertain to the Business (the “Warranties”);

(l)            All claims of Seller against third parties related to the Business, whether known or unknown, fixed or continent (the “Claims”);

(m)          All of Seller’s goodwill and other intangibles associated with the Business and the operation thereof, including but not limited to any goodwill associated with any Customers; and

(n)           All papers, documents, files and records in Seller’s care, custody or control, whether paper or electronic, relating to any or all of the above-described Purchased Assets, including but not limited to all Customer lists, contracts, logs, correspondence, billing records, files and sales records.

Section 2.02.  Excluded Assets .  Seller shall retain and not sell, convey, assign or deliver to Buyer, and Buyer shall not purchase or accept from Seller, any and all other assets not specifically identified as the Purchased Assets, including, without limitation, the following properties and assets of Seller (the “Excluded Assets”):

(a)           All cash and accounts receivable;

(b)           All rights of Seller pursuant to any real estate leases, vehicle leases and equipment leases;

(c)           All customers of Seller’s “Storm Beacon” product, including but not limited to those identified on Schedule 2.02(c) (the “Storm Beacon Customers”);

(d)           All computer hardware and related items not specifically listed on Schedule 2.01(e) that have a shared use, including but not limited to those identified on Schedule 2.02(d) (“Excluded Hardware”);

(e)           All general office equipment not specifically listed on Schedule 2.01(f), including, but not limited to copy machines, telephones, facsimile machines and office furniture;

(f)            All rights and interests under any Employee Benefit Plan;

(g)           Except as provided in Section 3.14, all financial and business records of Seller which do not directly and solely relate to the Purchased Assets;

(h)           Any assets not related to the Business, including but not limited to those identified on Schedule 2.02(h) (the “Unrelated Assets”);

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(i)            All other assets and properties of Seller of every kind, character or description, other than the Purchased Assets, which are owned, used or held for use (whether or not exclusively) by Seller, wherever located, whether or not similar to the items detailed under the Purchased Assets; and

(j)            All consideration to be received by Seller under this Agreement and all other rights of Seller hereunder.

Section 2.03.  Assumed Forward Looking Obligations; Excluded Liabilities .  Buyer shall assume all obligations incurred after the Effective Time or accruing after the Effective Time related to the Customer Contracts and Other Agreements purchased by Buyer pursuant to Section 2.01 hereof (the “Forward Looking Obligations”).  Buyer shall not assume any other Liabilities, obligations, contracts, leases and/or commitments of Seller of any nature, and nothing contained or described in this Agreement shall obligate Buyer to assume any other Liabilities, obligations, contracts or commitments of Seller, it being agreed that Buyer shall not assume nor in any manner be liable for, and Seller shall remain liable for and discharge and shall indemnify Buyer against and hold Buyer harmless from, all other debts, Liabilities and obligations of Seller incurred prior to or as of the Effective Time or arising prior to or as of the Effective Time, or incurred after the Effective Time or arising after the Effective Time in connection with or relating to the Business prior to the Effective Time.  Without limiting the foregoing, the Parties agree that Seller shall be solely responsible and liable for, among other things, all Liabilities for Taxes and similar items however designated, and all interest, penalties and additions to Tax, including Income Taxes and all accrued real property, personal property, sales, use and payroll Taxes incurred or arising prior to or as of the Effective Time, or incurred or accrued after the Effective Time in connection with or relating to the operation of the Business prior to the Effective Time.

Section 2.04.  Purchase Price .  Subject to adjustment as provided in Section 2.07, the total purchase price to be paid for the Purchased Assets and the other covenants and agreements of Seller set forth herein (the “Purchase Price”) shall be $1,900,000, less the amount of any fees or other amounts paid by Customers to Seller prior to the Effective Time on account of products or services to be provided to Customers after the Effective Time (the “Prepaid Fees”), with the amount of such Prepaid Fees to be determined by the Parties prior to Closing.  The Purchase Price shall be payable to Seller as set forth in Section 2.06.

Section 2.05.  Closing .  Subject to the satisfaction or waiver of the conditions set forth in Article VII hereof, the closing with respect to the transactions contemplated herein (the “Closing”) shall take place on June 30, 2006 or at such other time as Buyer and Seller may mutually agree in writing (the “Closing Date”) and shall become effective at 11:59:59 p.m. Central Daylight Savings Time on June 30, 2006 or at such other time as Buyer and Seller may mutually agree in writing (the “Effective Time”).  All Purchased Assets and related revenue, expenses, responsibility and risk of loss shall pass to Buyer as of the Effective Time.

Section 2.06.  Payment of Purchase Price .  Subject to adjustment as provided in Section 2.07 and set off for any indemnification claims of Buyer pursuant to Section 8.02(a), the Purchase Price shall be paid as follows:

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(a)           Closing Payment .  At Closing, Buyer shall pay to Seller (or its designee(s)) the sum of $1,566,137.39 (the “Closing Payment”), in immediately available funds via wire transfer pursuant to wiring instructions provided by Seller to Buyer at least three (3) Business Days prior to Closing.

(b)           Consent Holdback.   The amount of $285,000 (the “Consent Holdback”) shall be withheld from payment at Closing and shall be payable as follows:

(i)            On the date which is three (3) months following the Closing Date (the “First Consent Date”), Buyer shall pay to Seller the amount of the Consent Holdback which is in excess of the total of all Consent Revenue associated with all Non-Consenting Customers as of the First Consent Date.

(ii)           On the date which is six (6) months following the Closing Date (the “Second Consent Date”), Buyer shall pay to Seller the amount of the Consent Holdback which is in excess of the total of all Consent Revenue associated with all Non-Consenting Customers as of the Second Consent Date.

(iii)          On the date which is nine (9) months following the Closing Date (the “Third Consent Date”), Buyer shall pay to Seller the amount of the Consent Holdback which is in excess of the total of all Consent Revenue associated with all Non-Consenting Customers as of the Third Consent Date.

(iv)          On June 30, 2007 (the “Final Consent Date”), Buyer shall pay to Seller the amount of the Consent Holdback which is in excess of the total of all Consent Revenue associated with all Non-Consenting Customers as of the Final Consent Date

All amounts due pursuant to this Section 2.06(b) shall be paid in immediately available funds via wire transfer pursuant to wiring instructions provided by Seller to Buyer at least three (3) Business Days prior to the date on which such payment is due.

Section 2.07.  Purchase Price Adjustment.  Schedule 2.07 sets forth each Customer Contract for which consent to assignment is required (each an “Assignment Consent Customer”) and each Customer of Seller for which Buyer shall provide services pursuant to a Subcontract for which consent to subcontract is required (each a “Subcontract Consent Customer” and together with the Assignment Consent Customers, the “Consent Customers”) and for which such consent to assignment or subcontract has not been delivered to Buyer as of the date hereof, together with the estimated 2006 fiscal year annual revenues of each such Consent Customer (the “Consent Revenue”).  If Seller fails to deliver to Buyer the Consent of any Consent Customer to the assignment to Buyer of the Customer Contract of such Consent Customer or to the subcontracting of services to be provided by Buyer to such Consent Customer, as applicable (each a “Non-Consenting Customer”), on or prior to the Final Consent Date, then the Purchase Price shall be reduced by an amount equal to the total of all Consent Revenue associated with such Non-Consenting Customers.  For the purpose of this Section 2.07, (a) with respect to any Assignment Consent Customer, Consent shall mean: (i)  the receipt by Buyer of payment for services rendered from an Assignment Consent Customer pursuant to a Customer Contract, (ii)

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the written acknowledgement by an Assignment Consent Customer, in a form reasonably acceptable to Buyer (which may include e-mail or other form of electronic communication), whereby such Assignment Consent Customer agrees to the assignment of the Customer Contract, (iii) any subsequent award to Buyer of a contract put out to bid by an Assignment Consent Customer pursuant to which Buyer shall perform services substantially similar to services provided pursuant to the applicable Customer Contract, or (iv) the Consent by an Assignment Consent Customer to the subcontracting of such Customer Contract to Buyer (in the manner provided for in subparagraph (b) below) and the execution of a Subcontract by the parties hereto, and (b) with respect to any Subcontract Consent Customer, Consent shall mean the consent of a Subcontract Consent Customer in the form required pursuant to the applicable contract.  The amount of the Purchase Price reduction pursuant to this Section 2.07 shall be withheld from the payment of the Consent Holdback as provided in Section 2.06(b) and in no event shall the amount of such Purchase Price reduction exceed the amount of the Consent Holdback.

Section 2.08.  Allocation of Purchase Price .   The Purchase Price shall be allocated among the Purchased Assets as mutually agreed by Buyer and Seller within ninety (90) days following the Effective Time.  Buyer and Seller agree to use such allocation for all tax and reporting purposes and not to take any contrary position with respect thereto.  In the event that the Purchase Price is adjusted as the result of the operation of Section 2.07 or any indemnification obligation pursuant to Section 8.02(a), the allocation of the Purchase Price shall be revised accordingly as soon as reasonably practicable.  Buyer and Seller shall take all actions and file all Tax Returns (including but not limited to Internal Revenue Service Form 8594) consistent with such allocation unless required to do otherwise by law.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Buyer that the statements contained in this Article III are correct and complete as of the date of this Agreement and will be correct and complete as of the Effective Time, except as set forth in the Disclosure Schedules attached hereto and incorporated herein by this reference (the “Disclosure Schedules”).  The Disclosure Schedules will be arranged in paragraphs corresponding to numbered Sections contained in this Article   III.

Section 3.01.  Organization .  Seller has been duly organized and is a validly existing corporation in good standing under the laws of the State of Missouri.  Seller has all corporate power required to carry on the Business as now conducted and to sell, transfer and assign the Purchased Assets to Buyer.  Quixote Corporation, a Delaware corporation (“Quixote”) is the sole legal and beneficial owner of all of the outstanding capital stock of Quixote Transportation Safety, Inc., a Delaware corporation, which is the sole legal and beneficial owner of all of the outstanding capital stock of Seller.  There are no outstanding agreements for the purchase or acquisition of any of the shares of Seller’s capital stock from Seller or Quixote.  There are no outstanding securities exercisable for or convertible into any capital stock of Seller.

Section 3.02.  Authorization .  The execution, delivery and performance of this Agreement by Seller is within Seller’s corporate power, has been duly authorized by all necessary action on the part of Seller and, when executed and delivered in accordance with the

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terms hereof, will constitute a valid and legally binding obligation of Seller enforceable in accordance with its terms.

Section 3.03.  Noncontravention.   Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (a) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency or court to which Seller is subject or any provision of the articles of incorporation or bylaws of Seller or (b) conflict with, result in a breach of, constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any material agreement, contract, lease, license, instrument or other arrangement to which Seller is a party or by which Seller is bound or to which any of the Purchased Assets are subject (or result in the imposition of any Security Interest upon any of the Purchased Assets).

Section 3.04.  Litigation .  Except as disclosed in Schedule 3.04, there is no action, order, writ, judgment or decree outstanding or suit, litigation or proceeding pending or, to the Knowledge of Seller, threatened, against Seller with respect to the Business, the Purchased Assets or the execution of this Agreement or the consummation of the transaction contemplated thereby, nor has any such action, order, writ, judgment or decree been outstanding or suit, litigation or proceeding been pending against Seller during the past three (3) years.

Section 3.05.  Assumed Agreements .

(a)           Schedule 2.01(a) identifies all of the contracts, agreements or other relationships, whether written or oral, which are in effect as of the date of this Agreement and pursuant to which Seller sells, licenses or otherwise provides products or services of the Business to third parties.  Seller has no contracts, agreements or other relationships pursuant to which Seller sells, licenses or otherwise provides products or services of the Business to third parties other than the Customer Contracts.

(b)           Current, correct and complete copies of all written agreements included within the Purchased Assets (including but not limited to written Customer Contracts and Other Agreements), and summaries of all oral agreements included within the Purchased Assets (including but not limited to oral Customer Contracts and Other Agreements), have been provided to or made available for inspection by Buyer.

(c)           Each written agreement included within the Purchased Assets was duly executed and delivered by, and constitutes a valid and binding obligation of, Seller, enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(d)           Each written agreement included within the Purchased Assets was duly executed and delivered by, and to the Knowledge of Seller, as of the Effective Time will constitute a valid and binding obligation of, the other party to the agreement, enforceable against the other party to the agreement in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws

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of general applicability relating to or affecting creditors’ rights and to general equity principles.

(e)           Each agreement included within the Purchased Assets constitutes the entire agreement to which Seller is a party with respect to the products and/or services being sold, licensed, acquired or retained to or from the other party thereto.

(f)            There has been no material breach of the terms of any agreement included within the Purchased Assets by Buyer or, to Seller’s Knowledge, by any other party to such agreement.

(g)           As of the Effective Time, each agreement included within the Purchased Assets will be legal, valid, binding and enforceable by Buyer, and in full force and effect on identical terms.

(h)           Seller has not received any notice and has no Knowledge of any actual or threatened termination of any agreement included within the Purchased Assets.

(i)            Except as set forth on Schedule 3.18, each agreement included within the Purchased Assets is assignable to Buyer without any consent or approval of any person.

Section 3.06.  Customers .

(a)           Except for customers of Seller’s “Storm Beacon” product which will be terminated by Seller under their agreements or as soon as otherwise practicable, Schedule 2.01(a) sets forth a complete and correct list of all customers of the Business, together with the estimated 2006 fiscal year annual revenues of each such customer identified therein.  Seller provides no products or services of the Business to any third-parties other than the Customers.

(b)           Except as set forth in Schedule 3.06(b), Seller is not and has not been engaged in any material dispute with any of its Customers since June 30, 2005.  Seller has not received any actual notice and does not have any reason to believe that any of its Customers has ceased, or after the Effective Time will cease, to use the products or services of the Business or that any of its Customers has substantially reduced, or after the Effective Time will substantially reduce, the use of such products or services at any time.

(c)           Except as set forth in Schedule 3.06(c), to the Knowledge of Seller, none of the Customers have filed a petition in bankruptcy or voluntary reorganization, commenced any case or proceeding under applicable bankruptcy laws or other similar laws, or had commenced against them any case or proceeding under any applicable bankruptcy or other similar laws, other than any petitions, cases or proceedings which have been dismissed prior to the date of this Agreement.

(d)           Seller has provided Buyer with true, accurate and complete Customer information, including but not limited to contracts, pricing and addresses, as requested by Buyer.

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Section 3.07.  Hardware and Other Equipment .  Schedules 2.01(e) and 2.01(f) set forth an accurate and complete list of all Hardware and Other Equipment owned by Seller and used in connection with or otherwise related to the Business, and all of such Hardware and Other Equipment is in good operating condition (reasonable wear and tear excepted).

Section 3.08.  Software, Licenses and Data Bases .

(a)           Schedule 2.01(b) sets forth a list of all of the software and licenses which are used by Seller in connection with or otherwise related to the Business and are material to the operations thereof, including all computer software programs and related documentation and materials, other than any computer software programs and related documentation and materials subject to “shrink wrap” and/or “click wrap” licenses.  Schedule 2.01(c) sets forth a list of all data bases which are used by Seller in connection with or otherwise related to the Business and are material to the operations thereof.

(b)           As specified on Schedules 2.01(b) and (c), Seller either owns, free and clear of any liens, all right, title and interest in all Software and Licenses and Data Bases and the media included in the Purchased Assets on which such Software and Licenses and Data Bases owned by Seller is contained, or has a valid license to use such Software and Licenses and Data Bases contained on such media included in the Purchased Assets and licensed or otherwise made available for use to it.

(c)           The use by Seller of any Software and Licenses and Data Bases that are proprietary to Seller does not conflict with, misappropriate or infringe upon the rights or ownership interests of any other Person and, to the Knowledge of Seller, the use by Seller of any third-party Software and Licenses and Data Bases does not conflict with, misappropriate or infringe upon the rights or ownership interests of any other Person.

(d)           No claims (i) challenging the validity, effectiveness or, other than with respect to any licensed Software and Licenses and Data Bases, ownership by Seller of any of the Software and Licenses and Data Bases or (ii) to the effect that the use, distribution, licensing, sublicensing, sale or any other exercise of rights in the Software and Licenses and Data Bases by Seller or its agents or use by its customers infringes or will infringe on any rights or interests of any Person, have been asserted or, to the Knowledge of Seller, are threatened by any Person, and Seller has no Knowledge of the existence of any facts which could reasonably support such a claim.

(e)           None of the Software and Licenses or Data Bases contain any Self-Help Code or any Unauthorized Code.

(f)            The Software and Licenses and Data Bases and the transferred rights and licenses thereto are sufficient to operate the Business after Closing in the manner it was operated prior to Closing and will not result in any additional license fees or charges after Closing in the operation of the Business other than any license fees required to be paid pursuant to the licenses identified on Schedules 2.01(b) and (c).

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Section 3.09.  Intellectual Property .

(a)           Schedule 2.01(d) sets forth a true and complete list of (i) all United States, state and foreign registrations of and applications for patents, trademarks, service marks, trade names and copyrights owned by Seller, (ii) all patent licenses, trademark licenses, service mark licenses, trade name licenses, trade secret licenses and copyright licenses held by Seller, and (iii) all other intellectual property rights, owned, held or used by Seller in connection with the Business.

(b)           Except as set forth on Schedule 3.09, Seller is the sole and exclusive owner of the entire right, title, and interest in and to all IP Rights listed on Schedule 2.01(d).

(c)           All IP Rights are subsisting and have not been adjudged invalid or unenforceable, in whole or in part, and Seller has performed all acts and has paid all renewal, maintenance, and other fees and taxes required to maintain each and every registration and application of patents, trademarks, service marks, trade names and copyrights in full force and effect.

(d)           Except as set forth on Schedule 3.09, all of the IP Rights are valid and enforceable; no holding, decision, or judgment has been rendered in any action or proceeding before any court or administrative authority challenging the validity of, Seller’s right to register, or Seller’s rights to own or use, any IP Rights and no such action or proceeding is pending or, to the Knowledge of Seller, threatened.

(e)           All registrations and applications for patents, trademarks, service marks, trade names and copyrights are standing in the name of Seller, and none of the patents, trademarks, service marks, trade names, copyrights or trade secrets has been licensed by Seller to any Affiliate or third party.

(f)            Seller has been using appropriate statutory notice of registration in connection with its use of registered trademarks and service marks, proper marking practices in connection with the use of patents, and appropriate notice of copyright in connection with the publication of copyrights.

(g)           Except as set forth on Schedule 3.09, Seller’s operation of the Business does not infringe upon or otherwise violate any trademark, service mark, trade name, patent, copyright, trade secret or other intellectual property right owned or controlled by a third party; no claim has been made that the use of any IP Rights owned or used by Seller (or any of its respective licensees) violates the asserted rights of any third party.

(h)           To the Knowledge of Seller, no third party is infringing upon or otherwise violating any rights in any IP Rights owned or used by Seller, or any of its licensees.

(i)            No settlement or consents, covenants not to sue, nonassertion assurances, or releases have been entered into by  or otherwise binding upon Seller that adversely affect Seller’s rights to own or use any IP Rights.

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(j)            Seller has not made a previous assignment, sale, transfer or agreement constituting a present or future assignment, sale, transfer or agreement related to any IP Rights that has not been terminated or released.

(k)           The IP Rights are sufficient to operate the Business after Closing in the manner in which it was operated prior to Closing and will not result in any additional license fees or charges after Closing in the operation of the Business, other than those regularly paid by Seller in the ordinary course of business prior to Closing.

Section 3.10.  Supplies .  Schedule 2.01(g) sets forth an accurate and complete list of all of the inventory, supplies and expendable assets which are used by Seller in connection with the Business.

Section 3.11.  St. Louis Facility.  A correct and complete copy of the real estate lease pertaining to Seller’s facility located at 11612 Lilburn Park Road, St. Louis, Missouri (such facility being referred to herein as the “St. Louis Facility,” and such real estate lease being referred to herein as the “St. Louis Real Estate Lease”) has been provided to or made available for inspection by Buyer.  The employees to be leased under the Employee Leasing Agreement will continue to have access to the St. Louis Facility and while there will have the use of all of the tools and equipment necessary for them to provide the same services for Buyer that they have provided to Seller prior to the Closing.

Section 3.12.  Compliance With Laws .  Seller is in compliance with, is not in violation of and, to Seller’s Knowledge, is not under investigation with respect to any suspected or alleged violation of, any laws applicable to the Purchased Assets and/or conduct of the Business.

Section 3.13.  Tax Matters .  Except as set forth on Schedule 3.13, all Tax Returns for all periods ending on or before the Effective Time that are, were or may in the future be required to be filed by or with respect to the Business or the Purchased Assets, either separately or as a member of an affiliated group of entities, have been filed or will be filed on a timely basis, and in accordance in all material respects with the laws, regulations and administrative requirements of any applicable Taxing Authority.  All such Tax Returns that have been filed on or before the Effective Time or will be filed after the Effective Time relating to the Business or Purchased Assets prior to the Effective Time, were and continue to be or, when filed, will be true, correct and complete in all material respects; and, except as set forth on Schedule 3.13, Seller has paid, or will pay when due, all Taxes relating to the Business or the Purchased Assets, including personal property taxes and payroll taxes, that have or may become due for all periods (or portions thereof) ending on or before the Effective Time.  There are no liens with respect to Taxes upon any of the Purchased Assets (except for Taxes not yet due).

Section 3.14.  Financial Statements .

(a)           Schedule 3.14 to this Agreement sets forth the unaudited balance sheets and statements of income pertaining to the Business for the twelve (12) month periods ending June 30, 2005 and 2004, certified by an officer of Seller (the “Financial Statements”).  The revenue set forth in the income statement for the Business has been recognized in accordance with generally accepted accounting principles in the United

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States in all material respects.  The Financial Statements have been prepared in accordance with accepted accounting principles in the United States, applied on a consistent basis through the periods indicated and with each other, are complete and correct in all material respects, are consistent with the books and records of Seller, and accurately and fairly present the financial position of the Business as of the date of the Financial Statements, as well as the results of Seller’s Business operations for the periods indicated.

(b)           The books and records of Seller (i) accurately reflect all material items of income and expense and all assets and Liabilities of Seller, (ii) are in all material respects complete and correct and do not contain any material inaccuracies or discrepancies, (iii) have been maintained in accordance with good business and accounting practices, and (iv) have been made available to Buyer for its inspection.

(c)           Seller has no Liability (and there is no basis for any present or future proceeding against Seller giving rise to any Liability), other than (i) Liabilities set forth on the face of the Financial Statements (rather than the notes thereto), (ii) Liabilities incurred in the Ordinary Course of Business consistent with past practice subsequent to December 31, 2005 and (iii) obligations under Customer Contracts and Other Agreements incurred in the Ordinary Course of Business consistent with past practice subsequent to December 31, 2005, all of which Liabilities and obligations referred to in the foregoing clauses (i) through (iii), individually or in the aggregate, are not material to the financial condition or operating results, assets or prospects of Seller.

Section 3.15.  Absence of Specified Changes .  Except as listed on Schedule 3.15, since December 31, 2005, there has not been any:

(a)           Material Adverse Effect on the financial condition, Liabilities, assets, business, operating results or prospects of the Business and/or the Purchased Assets;

(b)           destruction, damage to or loss of any Business assets of Seller (whether or not covered by insurance) that has had or may have a Material Adverse Effect on the assets, financial condition, business, operating results or prospects of the Business;

(c)           labor disputes, preliminary union organization or requests for union representation concerning the Business;

(d)           increase in the salary or other compensation or benefits payable or to become payable to any of the employees of Seller whose duties relate to the Business (“Employees”), other than those increases provided to Employees in the Ordinary Course of Business;

(e)           sale or transfer of any Business asset of Seller;

(f)            execution, creation, amendment, nonrenewal or termination of any contract, agreement or license pertaining to the Business;

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(g)           additional indebtedness for borrowed money involving or relating to the Business or any of the Purchased Assets;

(h)           creation or assumption by Seller of any mortgage, lien, Security Interest, pledge or other encumbrance on any of the Purchased Assets;

(i)            waiver of any rights or cancellation or forgiveness of any claims or indebtedness related to any Purchased Asset or that would otherwise be a Purchased Assets;

(j)            any receipt by Seller of (i) notice of any loss of, (ii) material order cancellation by, (iii) material pricing or other contract changes with respect to, (iv) material dispute with or (v) material complaints from, any Customers;

(k)           initiation, receipt or settlement of any action, arbitration, audit, hearing, investigation, litigation, lawsuit or other similar proceeding affecting the Business or the Purchased Assets;

(l)            other event or condition of any character that has or might reasonably have a Material Adverse Effect on the financial condition, business, assets, operating results or prospects of the Business and/or the Purchased Assets;

(m)          conduct or activity concerning the Business and/or the Purchased Assets which has not been in the Ordinary Course of Business; or

(n)           agreement by Seller to do any of the things described in the preceding clauses (a) through (m).

Section 3.16.  Title .

(a)           Except as identified on Schedule 3.16(a), Seller is the owner of good and valid title to all of the Purchased Assets, free and clear of all liabilities, liens, charges, claims, licenses, rights, encumbrances and restrictions on transfers other than the Forward Looking Obligations and Permitted Liens, if any; and, no financing statement covering all or any portion of the Purchased Assets and naming Seller as debtor has been filed in any public office which has not been released, and Seller has not signed any financing statement or security agreement as debtor or borrower which financing statement or security agreement covers all or any portion of the Purchased Assets which has not been released.

(b)           As of the Effective Time, Buyer will acquire the Purchased Assets for its exclusive use free and clear of all liabilities, liens, charges, claims, licenses, rights, encumbrances and restrictions on transfers, except those that may arise from acts of Buyer, the Forward Looking Obligations or any Permitted Liens.  As of the Effective Time, Seller shall have no right, title or interest in the Purchased Assets.

Section 3.17.  Licenses and Permits .  Schedule 3.17 hereto contains a list and description of all licenses, authorizations and permits required by any Governmental Authority in

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connection with the operation of the Business as presently being conducted, including but not limited to the Permits.  Seller has all governmental licenses, authorizations and permits required to carry on the Business as now conducted and to sell, transfer and assign the Purchased Assets to Buyer, and all such licenses, authorizations and permits are in full force and effect, except for any licenses, authorizations and permits the absence of which, individually or in the aggregate, would not have a Material Adverse Effect.  Seller is, and at all times during the past two (2) years has been, in full compliance with all of the terms and requirements of each of the licenses, authorizations and permits listed on Schedule 3.17.  No event has occurred or circumstance exists that may (with or without notice or lapse of time): (a) constitute or result directly or indirectly in a violation of, or a failure to comply with, any term or requirement of any license, authorization or permit listed on Schedule 3.17, or (b) result directly or indirectly in the revocation, withdrawal, suspension, cancellation or termination of, or any modification to, any license, authorization or permit listed on Schedule 3.17.

Section 3.18.  Consents and Approvals.   Schedule 3.18 hereto contains a list and description of all notices or filings to and consents or approvals of any third parties, including but not limited to any Governmental Authorities, customers, suppliers, lessors or lenders, which may be necessary in order to effectively and legally transfer all of the Purchased Assets to Buyer or to o