ASSET PURCHASE AGREEMENT

Exhibit 2.1

ASSET PURCHASE AGREEMENT

BY AND AMONG

TELETECH HOLDINGS, INC. (solely with respect to
Sections 5.2, 5.4, 5.5, and 5.7 and ARTICLE X),

NEWGEN RESULTS CORPORATION,

CARABUNGA.COM, INC.,

NEWGEN RESULTS CANADA, LTD.,

ASPEN MARKETING SERVICES, INC.

AND

ASPEN ACQUISITION HOLDINGS LLC
(solely with respect to ARTICLE X)

DATED AS OF SEPTEMBER 27, 2007

ARTICLE I DEFINITIONS							2
		Section 1.1		Certain Defined Terms			2
ARTICLE II PURCHASE AND SALE OF STOCK AND ASSETS; CLOSING							8
		Section 2.1		Purchase and Sale of Assets			8
		Section 2.2		Assumed Liabilities			8
		Section 2.3		Closing			8
		Section 2.4		Purchase Price			8
		Section 2.5		Closing Deliveries by Seller			8
		Section 2.6		Closing Deliveries by Buyer			9
		Section 2.7		Allocation of Purchase Price			10
		Section 2.8		New Employees			10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER							11
		Section 3.1		Organization, Good Standing, Qualification and Authority			11
		Section 3.2		No Conflict or Violation			12
		Section 3.3		Consents and Approvals			12
		Section 3.4		Title to Assets; Sufficiency			12
		Section 3.5		Real Property			12
		Section 3.6		Financial Statements			12
		Section 3.7		Events Subsequent to Most Recent Fiscal Year End			13
		Section 3.8		Undisclosed Liabilities			14
		Section 3.9		Legal Compliance			14
		Section 3.10		Tax Matters			15
		Section 3.11		Insurance			16
		Section 3.12		Intellectual Property			16
		Section 3.13		Employees			20
		Section 3.14		Legal Compliance			20
		Section 3.15		Contracts			20
		Section 3.16		Litigation			21
		Section 3.17		Brokers’ and Finders’ Fees			21
		Section 3.18		Notes and Accounts Receivable			21
		Section 3.19		Employee Benefit Plans			21
		Section 3.20		Environmental, Health, and Safety Matters			22
		Section 3.21		Certain Business Relationships with Seller			22
		Section 3.22		Customers and Suppliers			22
		Section 3.23		Limitation of Representations and Warranties			22

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER							23
		Section 4.1		Organization of Buyer			23
		Section 4.2		Authorization; Validity			23
		Section 4.3		No Conflict or Violation			23
		Section 4.4		Consents and Approvals			23
		Section 4.5		No Brokers			24
		Section 4.6		Financing			24
		Section 4.7		Certain Litigation			24
ARTICLE V COVENANTS							24
		Section 5.1		Access to Information and Records			24
		Section 5.2		Confidentiality			24
		Section 5.3		Conduct of Business			25
		Section 5.4		Consents			25
		Section 5.5		Exclusivity			26
		Section 5.6		Notice of Developments			26
		Section 5.7		Covenant Not to Compete			26
ARTICLE VI TERMINATION							26
		Section 6.1		Termination			26
		Section 6.2		Effect of Termination			27
ARTICLE VII CONDITIONS TO SELLER’S OBLIGATIONS							27
		Section 7.1		Representations, Warranties			27
		Section 7.2		Performance by Buyer			27
		Section 7.3		No Injunction			27
		Section 7.4		Payments			27
		Section 7.5		Transaction Documents			27
		Section 7.6		Documents to be Delivered by Buyer			28
ARTICLE VIII CONDITIONS TO BUYER’S OBLIGATIONS							28
		Section 8.1		Representations, Warranties			28
		Section 8.2		Performance by Seller			28
		Section 8.3		No Injunction			29
		Section 8.4		Documents to be Delivered by Seller			29
		Section 8.5		Transaction Documents			29
		Section 8.6		Absence of Litigation			29
ARTICLE IX POST-CLOSING COVENANTS							30
		Section 9.1		Further Assurances			30

		Section 9.2		Transition			30
		Section 9.3		Wage Reporting			30
		Section 9.4		Cooperation			30
ARTICLE X INDEMNIFICATION							30
		Section 10.1		Indemnification			30
		Section 10.2		Limitations of Indemnity			31
		Section 10.3		Indemnification Procedures — Third Party Claims			31
		Section 10.4		Indemnification Procedures — Other Claims, Indemnification Generally			33
		Section 10.5		Exclusive Remedy			33
ARTICLE XI MISCELLANEOUS							33
		Section 11.1		Assignment			33
		Section 11.2		Notices			33
		Section 11.3		Choice of Law; Waiver of Jury Trial			34
		Section 11.4		Entire Agreement; Amendments and Waivers			34
		Section 11.5		Counterparts			34
		Section 11.6		Invalidity			34
		Section 11.7		Headings			35
		Section 11.8		Expenses			35
		Section 11.9		Interpretation			35
		Section 11.10		Incorporation of Exhibits and Schedules			35
		Section 11.11		Business Days			35
		Section 11.12		Bulk Transfer Laws			35

EXHIBITS

Exhibit A		Form of Assumption Agreement
Exhibit B		Form of Bill of Sale
Exhibit C		Form of Software License Agreement
Exhibit D		Form of Transition Services Agreement
Exhibit E		Form of Master Services Agreement
Exhibit F		Form of Trademark License Agreement
Exhibit G		Financial Statements
Exhibit H		Accounts Receivable Aging Report
Exhibit I		Form of Carabunga IP Assignment Agreement
Exhibit J		Form of Newgen IP Assignment Agreement

SCHEDULES

Schedule 1.1		Excluded Assets
Schedule 1.2		Excluded Liabilities
Schedule 1.3		Severance Liabilities Employees
Schedule 1.4		Commissions
Schedule 2.7		Purchase Price Allocation
Schedule 2.8		Seller’s Severance Policy
Schedule 3.1(a)		Capitalization
Schedule 3.5		Real Property
Schedule 3.7		Events Subsequent to Most Recent Fiscal Year End
Schedule 3.10		Taxes
Schedule 3.11		Insurance
Schedule 3.12(a)		Seller Intellectual Property
Schedule 3.12(b)		Parent Intellectual Property Used by Seller
Schedule 3.12(c)		Third Party Intellectual Property Previously Provided Through Parent to Seller
Schedule 3.12(f)(5)		Seller Intellectual Property Previously Provided Through Parent to Seller
Schedule 3.12(h)		Third Party IP
Schedule 3.12(f)		Patents
Schedule 3.13		Employees
Schedule 3.15		Contracts
Schedule 3.16		Litigation
Schedule 3.19		Employee Benefit Plan
Schedule 3.22		Customers and Suppliers
Schedule 5.4		Required Consents

ASSET PURCHASE AGREEMENT

      ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of September 27, 2007, by and among (i) Aspen Marketing Services, Inc., a Delaware corporation (“ Buyer ”), (ii) solely with respect to ARTICLE X, Aspen Acquisition Holdings LLC, a Delaware limited liability company (“Holdings”), (iii) Newgen Results Corporation, a Delaware corporation (“ Newgen ”), Carabunga.com, Inc., a Delaware corporation (“ Carabunga ”), and Newgen Results Canada, Ltd., a Canadian corporation (“ NG Canada ,” and together with Newgen and Carabunga, “ Seller ”) and, (iv) solely with respect to Section 5.2, Section 5.4, Section 5.5, Section 5.7, and ARTICLE X, Teletech Holdings, Inc., a Delaware corporation (“ Parent ”). Buyer, Holdings, Seller and Parent are referred to collectively as the “ Parties ” and individually as a “ Party .”

RECITALS

     A. Seller is engaged in the business of providing customer loyalty and satisfaction programs, direct marketing and promotions, service bay scheduling, sales lead management, and database and marketing services for automotive dealerships and manufacturers in the United States and Canada (the “ Business ”).

     B. Seller desires to sell, transfer and assign, and Buyer desires to purchase and acquire, all of the Transferred Assets (as defined herein), subject to the assumption by Buyer of the Assumed Liabilities (as defined herein) relating to the Business, on the terms and conditions set forth herein.

      NOW THEREFORE, in consideration of the mutual promises, covenants, representations, warranties, conditions and agreements contained herein, the Parties agree as follows:

ARTICLE I
DEFINITIONS

     Section 1.1 Certain Defined Terms . As used herein, the terms below shall have the following meanings:

     “ Accrued Vacation Amount ” has the meaning specified in Section 2.4.

     “ Action ” means any judicial or administrative action, claim, suit, investigation, hearing, demand or proceeding by or before any Governmental Authority.

     “ Affiliate ” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “ control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.

     “ Agreement ” has the meaning specified in the introduction of this Agreement.

     “ Allocation ” has the meaning specified in Section 2.7.

     “ Assumed Liabilities ” means (a) all liabilities of Seller set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto), (b) all liabilities of Seller of the type that would be required under GAAP to be set forth on the face of the balance sheet of Seller that have arisen after the Most Recent Fiscal Month End in the Ordinary Course of Business (including, without limitation, all trade payables incurred after the Most Recent Fiscal Month End in the Ordinary Course of Business through the Closing Date, whether or not invoiced as of the Closing Date but excluding any liability resulting from, arising out of, relating to, in the nature of, or caused by any breach of contract, breach of warranty, tort, infringement, violation of law, or environmental matter) (c) all obligations of Seller under the Contracts referred to in the definition of Transferred Assets arising after the Closing Date and relating to post-Closing Date matters or events, including, without limitation, all obligations to pay any commissions to employees or consultants as set forth on Schedule 1.4 due or payable after the Closing Date based on revenue generated after the Closing Date, and (d) accrued vacation obligations to Hired Employees; provided , however , that, notwithstanding the above, the following shall not be Assumed Liabilities: (i) any Liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) of Seller for Taxes (including all income Taxes incurred on, after, or before the Closing Date) that are unrelated to the Business, Transferred Assets, or Hired Employees (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Most Recent Balance Sheet), and any liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) of Seller for Taxes relating to or arising from the Business, Transferred Assets, or Hired Employees with respect to any period (or portion thereof) ending on or prior to the Closing Date (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Most Recent Balance Sheet), or Transfer Taxes (as defined in Section 11.8) arising in connection with the consummation of the transactions contemplated by this Agreement (including any income Taxes arising because Seller is transferring the Business or Transferred Assets), or any Liability of Seller for the unpaid Taxes of any Person under Reg. §1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise), (ii) except with respect to obligations arising after and relating to the period following the Closing Date relating to Transferred Assets, any Liability of Seller to any Person (in respect of indemnification or otherwise) by reason of the fact that such Person was a director, officer, employee, or agent of Seller or was serving at the request of any such entity as a partner, trustee, director, officer, employee, or agent of another entity (whether for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether pursuant to any statute, charter document, bylaw, agreement, or otherwise), (iii) any Liability of Seller for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, (iv) any Severance Liabilities, (v) any Liability of any Seller that arises with respect to Employee Benefit Plans (whether or not terminated) of Sellers or Sellers’ ERISA Affiliates (other than accrued vacation obligations for Hired Employees), (vi) any Liability under any Contract between Seller and any employee of Seller, (vii) any Liability or obligation of Seller under this Agreement, and (viii) the Excluded Liabilities.

     “ Assumption Agreement ” means that certain Assumption Agreement by and between Seller and Buyer in the form of Exhibit A hereto.

     “ Basket ” has the meaning specified in Section 10.2.

     “ Bill of Sale ” means that certain Bill of Sale from Seller to Buyer in the form of Exhibit B hereto.

     “ BofA ” means Bank of America.

     “ BofA Account ” means the account no. 86661-10670 maintained in the name of Newgen with BofA in Chicago, Illinois.

     “ Business ” has the meaning specified in the Recitals.

     “ Buyer ” has the meaning specified in the introduction of this Agreement.

     “ Buying Party Indemnitee ” has the meaning specified in Section 10.1(a).

     “ Cap ” has the meaning specified in Section 10.2.

     “ CA WARN ” has the meaning specified in Section 2.8(c).

     “ Carabunga ” has the meaning specified in the introduction of this Agreement.

     “ Carabunga IP Assignment Agreement ” means that certain Intellectual Property Assignment by and between Carabunga and Buyer in the form of Exhibit I hereto.

     “ Closing ” has the meaning specified in Section 2.3.

     “ Closing Date ” has the meaning specified in Section 2.3.

     “ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

     “ Confidential Information ” means any information concerning the businesses and affairs of a Party and its subsidiaries that is not already generally available to the public; provided , however , “Confidential Information” shall not include information that (a) becomes publicly available through no fault of the applicable Party, (b) is already in a third party’s possession prior to the Closing, or (c) is independently developed by a third party.

     “ Contract ” means any written contract, lease, license, purchase order, sales order or other agreement or binding commitment, whether written or oral.

     “ Employee Benefit Plan ” means any “employee benefit plan” (as such term is defined in ERISA Section 3(3)) and any other employee benefit plan, program or arrangement of any kind, whether or not subject to ERISA and whether or not funded.

     “ Encumbrance ” means any lien, charge, security interest, mortgage, pledge or other encumbrance of any nature whatsoever granted against specific property, whether real or personal.

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

     “ ERISA Affiliate ” means each entity that is treated as a single employer with Seller for purposes of Code Section 414.

     “ Excluded Assets ” means any assets of Seller which are not a Transferred Asset, including any Excluded Assets set forth on Schedule 1.2 hereof.

     “ Excluded Liabilities ” means those Liabilities not included in the definition of Assumed Liabilities and any Liabilities set forth on Schedule 1.1 hereof.

     “ Financial Statements ” has the meaning specified in Section 3.6.

     “ GAAP ” means generally accepted accounting principals as in effect in the United States on the date of this Agreement, applied on a consistent basis by Seller.

     “ GigaPop ” means Parent’s centralized data center which hosts all core service delivery center technologies such as the automatic call distributor, quality assurance, workforce management and reporting.

     “ Governmental Authority ” means any United States federal, state or local, or any foreign government, governmental authority, regulatory or administrative agency, governmental commission, court or tribunal (or any department, bureau or division thereof).

     “ Hired Employees ” has the meaning specified in Section 2.8(a).

     “ Indemnification Acknowledgement ” has the meaning specified in Section 10.3(a)(ii).

     “ Indemnitee ” has the meaning specified in Section 10.3(a).

     “ Indemnitor ” has the meaning specified in Section 10.3(a).

     “ Intellectual Property ” means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, divisionals, extensions, reexaminations, utility models, certificates of invention, industrial designs, and design patents, as well as the rights to file for, and to claim priority to, any such patent rights, (b) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet domain names, and rights in telephone numbers, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including source code, executable code, data, databases, and related documentation), (g) all advertising and promotional materials, (h) all other proprietary rights, (i) all copies and tangible embodiments thereof (in whatever form or medium); and (j) all income, royalties, damages and payments related to any of the foregoing (including damages and payments for past, present or future infringements, misappropriations or other conflicts with any intellectual property), and the right to sue and recover for past, present or future infringements, misappropriations or other conflict with any intellectual property.

     “ Knowledge ” means (i) in the case of Seller, the actual knowledge or awareness of Dan Powell, Chris Howie, Bob Kurilko, Dustin Gallegos, Tim Wilcox, Randy Salzer, Kristin Dixon and Tim Hall, (ii) in the case of Parent, the actual knowledge or awareness of Dustin Gallegos, and

(iii) in the case of Buyer, the actual knowledge or awareness of Patrick O’Rahilly or Fiore DiNovi.

     “ Laws ” means all laws, statutes, rules, regulations, codes, injunctions, judgments, orders, decrees, rulings, interpretations, constitutions, ordinances, or common law of any federal, state, local or municipal Governmental Authority.

     “ Liability(ies) ” means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether incurred directly or consequential and whether due or to become due), including any Tax or other liability arising out of applicable statutory, regulatory or common law, any contractual obligation and any obligation arising out of tort which liability or obligation relates directly to the Business or the Transferred Assets.

     “ Losses ” means any claims, Liabilities, losses, damages (excluding consequential damages, punitive damages and lost profits), deficiencies, assessments, judgments, remediations and costs or expenses (including out-of-pocket expenses for reasonable attorneys).

     “ Master Services Agreement ” means that certain Master Services Agreement by and between Buyer and Teletech Services Corporation in the form of Exhibit E hereto.

     “ Material Adverse Effect ” means any effect or change that would be (or could reasonably be expected to be) materially adverse to the Transferred Assets taken as a whole or, on each of Seller’s ability to consummate timely the transactions contemplated hereby (regardless of whether or not such adverse effect or change can be or has been cured at any time or whether Buyer has knowledge of such effect or change on the date hereof). Notwithstanding the foregoing, neither the continued decline of the financial condition and performance of Seller, as properly reflected on the Financial Statements, nor general economic conditions shall be considered a Material Adverse Effect for purposes of this Agreement.

     “ Most Recent Balance Sheet ” means the balance sheet contained within the Most Recent Financial Statements.

     “ Most Recent Financial Statements ” has the meaning specified in Section 3.6.

      “Most Recent Fiscal Month End ” has the meaning specified in Section 3.6.

     “ Most Recent Fiscal Year End ” has the meaning specified in Section 3.6.

     “ Newgen ” has the meaning specified in the introduction of this Agreement.

     “ Newgen IP Assignment Agreement ” means that certain Intellectual Property Assignment by and between Newgen and Buyer in the form of Exhibit J hereto.

     “ Non-Hired Employee ” has the meaning specified in Section 2.8(a).

     “ NG Canada ” has the meaning specified in the introduction of this Agreement.

     “ Notice Laws ” has the meaning specified in Section 2.8(c).

     “ Notice of Claim ” has the meaning specified in Section 10.3(a).

     “ Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice.

     “ Parent ” has the meaning specified in the introduction of this Agreement.

     “ Party(ies) ” has the meaning specified in the introduction of this Agreement.

     “ Percepta ” has the meaning specified in Section 5.7.

     “ Percepta Activities ” has the meaning specified in Section 5.7.

     “ Permitted Liens ” means (i) liens for Taxes, fees, levies, duties or other governmental charges of any kind which are not yet delinquent or are being contested in good faith by appropriate proceedings which suspend the collection thereof and for which appropriate reserves have been established in accordance with GAAP; and (ii) liens for mechanics, material, laborers, employees, suppliers or similar liens arising by operation of law for sums which are not yet delinquent or which are being contested in good faith by appropriate proceedings or with respect to which arrangements for payment or release have been made and for which appropriate reserves have been established in accordance with GAAP.

     “ Person ” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture, association or other organization, whether or not a legal entity, or a Governmental Authority.

     “ Prepaid Sales Tax Amount ” has the meaning specified in Section 2.4.

     “ Purchase Price ” has the meaning specified in Section 2.4.

     “ Schedule ” means the disclosure schedules delivered by one of the Parties to the other Party on the date hereof.

     “ Seller ” has the meaning specified in the introduction of this Agreement.

     “ Severance Liabilities ” means any pension, retirement, deferred compensation, profit sharing, incentive compensation, bonus, stock purchase, stock option, welfare, hospitalization or insurance plan or arrangement or any vacation pay, severance costs, COBRA benefit, obligations or responsibilities, or any other employee benefit arrangement relating to Seller’s employees listed on Schedule 1.3 hereto and all former employees of Seller.

     “ Seller ” has the meaning specified in the introduction of this Agreement.

     “ Seller Employee Benefit Plan ” has the meaning specified in Section 3.19(a).

     “ Software License Agreement ” means that certain Software License Agreement by and between Buyer and Parent in the form of Exhibit C hereto.

     “ Tax(es) ” means any taxes, charges, fees, duties, levies, or other assessments, including income, capital gains, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Code), custom duties, capital stock, franchise, profits, withholding, social security (or

similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other taxes, charges, or fees of any kind whatsoever assessed by any federal, state, local, or foreign governmental authority, including any interest, penalty, or addition thereto, whether disputed or not, and any amounts payable pursuant to the determination or settlement of an audit.

     “ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

     “ Termination Date ” has the meaning specified in Section 6.1(b).

     “ Trademark License Agreement ” means that certain Trademark License Agreement by and between Parent and Buyer in the form of Exhibit F hereto.

     “ Transaction Documents ” means this Agreement, the Bill of Sale, the Assumption Agreement, the Transition Services Agreement, the Software License Agreement, the Master Services Agreement, the Trademark License Agreement, the Carabunga IP Assignment Agreement, the Newgen IP Assignment Agreement and the other documents and instruments to be executed and delivered and as contemplated by this Agreement in connection with this transaction.

     “ Transfer Taxes ” has the meaning specified in Section 11.8.

     “ Transferred Assets ” means all right, title, and interest in and to all of the assets of the Seller, including all of its (a) tangible personal property (such as machinery, equipment, inventories of raw materials and supplies, manufactured and purchased parts, goods in process and finished goods, furniture, automobiles, trucks, tractors, trailers, tools, jigs, and dies), (b) Intellectual Property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, (c) Contracts, indentures, mortgages, instruments, Encumbrances, guaranties, other similar arrangements, and rights thereunder, (d) accounts, notes, and other receivables, (e) securities, (f) claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes), (g) franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies, (h) books, records, ledgers, files, documents, correspondence, lists, plats, architectural plans, drawings, and specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials; and (i) the BofA Account; provided, however, that the Transferred Assets shall not include (i) the corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, and other documents relating to the organization, maintenance, and existence of Seller as a corporation; (ii) any of the rights of Seller under this Agreement (or under any side agreement between Seller on the one hand and Buyer on the other hand entered into on or after the date of this Agreement); (iii) investments in any subsidiaries of Seller; (iv) any intercompany records and accounts receivable and payable; or (v) all equipment known as “GigaPop” owned by Parent located in San Diego, California.

     “ Transition Services Agreement ” means that certain Transition Services Agreement by and among Buyer, Newgen and Parent in the form of Exhibit D hereto.

     “ WARN ” has the meaning specified in Section 2.8(c).

ARTICLE II
PURCHASE AND SALE OF STOCK AND ASSETS; CLOSING

     Section 2.1 Purchase and Sale of Assets . Subject to the terms and conditions set forth in this Agreement, on the Closing Date, Seller agrees to sell, transfer, assign, and convey to Buyer, and Buyer agrees to purchase from Seller, all the Transferred Assets, free and clear of all Encumbrances except for Permitted Liens.

     Section 2.2 Assumed Liabilities . At the Closing, Buyer will assume and agree to pay or perform, as the case may be, the Assumed Liabilities. Notwithstanding the foregoing, Buyer will not assume or agree to pay or perform the Excluded Liabilities.

     Section 2.3 Closing . Subject to ARTICLES VII and VIII, the closing (the “ Closing ”) of the transactions contemplated herein shall be held at 10:00 a.m., Mountain time, on the later of (i) September 28, 2007 or (ii) three business days after the satisfaction or waiver of all conditions to Closing contained in ARTICLES VII and VIII, at the offices of Brownstein Hyatt Farber Schreck, P.C., located at 410 17 ^th Street, Suite 2200, Denver, Colorado 80202, or such other time or place as the Parties otherwise agree (the “ Closing Date ”).

     Section 2.4 Purchase Price . Upon the terms and subject to the conditions contained herein, as consideration for the purchase of the Transferred Assets and in consideration for the agreements contained herein, at the Closing, Buyer shall pay an aggregate of $2,775,000 in cash (the “ Purchase Price ”) in immediately available funds at Closing by wire transfer to Seller. In addition to the Purchase Price, Buyer agrees to pay to Seller (i) the amounts paid by Seller on its July 2007 and August 2007 sales tax returns, which Seller represents are $5,448.57 and $8,601.75 respectively (collectively, the “ Prepaid Sales Tax Amount ”), and (ii) the amount to be paid by Seller on the Closing Date for accrued vacation obligations due to Hired Employees, which Seller represents is approximately $432,000 (the “ Accrued Vacation Amount ”).

     Section 2.5 Closing Deliveries by Seller .

          (a) To effect the transfer referred to in Section 2.1 and the delivery of the consideration described in Section 2.4, at the Closing, subject to the satisfaction or waiver of the conditions specified in ARTICLE VII below, Seller shall deliver or cause to be delivered to Buyer, the following:

          (i) a Bill of Sale and such other instruments of transfer and conveyance as shall be effective to vest in Buyer good and marketable title to the tangible personal property included in the Transferred Assets held by Seller free and clear of all Encumbrances other than Permitted Liens;

          (ii) the Assumption Agreement;

          (iii) the Software License Agreement;

          (iv) the Transition Services Agreement;

          (v) the Master Services Agreement;

          (vi) the Trademark License Agreement;

          (vii) the Carabunga IP Assignment Agreement;

          (viii) the Newgen IP Assignment Agreement;

          (ix) all other documents required to be delivered pursuant to ARTICLE VII not specifically mentioned in this Section 2.5; and

          (x) such other documents as may be reasonably necessary to consummate the transactions contemplated hereby.

          (b) All instruments and documents executed and delivered to Buyer pursuant hereto shall be in form and substance, and shall be executed in a manner, reasonably satisfactory to Buyer and its counsel.

     Section 2.6 Closing Deliveries by Buyer .

          (a) To effect the transfer referred to in Section 2.1 and the delivery of the consideration described in Section 2.4, at the Closing, subject to the satisfaction or waiver of the conditions specified in ARTICLE VII, Buyer shall tender or cause to be tendered, the following:

          (i) the Purchase Price, the Prepaid Sales Tax Amount and the Accrued Vacation Amount, by wire transfer of immediately available funds;

          (ii) the Assumption Agreement;

          (iii) the Software License Agreement;

          (iv) the Transition Services Agreement;

          (v) the Master Services Agreement;

          (vi)the Trademark License Agreement;

          (vii) the Carabunga IP Assignment Agreement;

          (viii) the Newgen IP Assignment Agreement;

          (ix) all other documents required to be delivered pursuant to Article VIII and not specifically mentioned above in this Section 2.6; and

          (x) such other documents as may be reasonably necessary to consummate the transactions contemplated hereby.

          (b) All instruments and documents executed and delivered to Seller pursuant hereto shall be in form and substance, and shall be executed in a manner, reasonably satisfactory to Seller and their counsel.

     Section 2.7 Allocation of Purchase Price . No later than 30 days after the Closing Date, Seller shall prepare and deliver to Buyer for approval a schedule allocating the Purchase Price (and Assumed Liabilities and other relevant items) among the Transferred Assets and the Covenant Not to Compete set forth in Section 5.7 (the “ Allocation ”), which Allocation shall be prepared in accordance with the applicable provisions of the Code. Within 30 days after the day the Allocation is delivered to Buyer by Seller, Seller and Buyer agree to negotiate in good faith the resolution of any disagreement they may have on the Allocation. If Seller and Buyer cannot agree on the Allocation during such time, each Party shall not be obligated to report the transaction completed pursuant to this Agreement in accordance with the Allocation. If Seller and Buyer agree on the Allocation, each Party agrees for all tax reporting purposes to report the transaction completed pursuant to this Agreement in accordance with the Allocation and will file all returns and reports with respect to the transactions contemplated by this Agreement, including all federal, state and local Tax Returns, on a basis consistent with such Allocation and not take any position during the course of any audit or other proceeding inconsistent with such Allocation unless required by a determination of the applicable taxing authority that is final. The Parties shall make appropriate adjustments to the Allocation to reflect changes in the Purchase Price.

     Section 2.8 New Employees .

          (a) Offer to Employees . On the Closing Date, Buyer shall make an offer of employment to each current employee of Seller (other than those set forth on Schedule 1.3 hereto), on substantially the same terms and conditions provided by Seller taken as a whole, which offer shall remain open until the Closing Date. Each of Seller’s employees who receive and accept an offer of employment from Buyer (the “ Hired Employees ”) on or before the Closing Date shall become employed by Buyer effective as of the date immediately following the Closing Date. Each Hired Employee shall be an employee-at-will, and nothing in this Section 2.8 shall be construed to interfere with any rights of either Buyer or the Hired Employee to sever or alter the employment relationship at any time. Notwithstanding the foregoing, to the extent any Hired Employee’s employment with Buyer is subject to an employment agreement with Buyer, the terms of such employment agreement shall govern to the extent they conflict with the provisions of this Section 2.8. Any liability for severance pay to terminated employees under Seller’s informal severance policy more particularly described on Schedule 2.8 incurred in connection with any current employee of Seller who receives an offer of employment pursuant to this Section 2.8(a) and who does not become a Hired Employee (each, a “ Non-Hired Employee ”), shall be retained by Buyer, and Seller shall have no obligations with respect to such employee, including with respect to such liabilities. Buyer shall indemnify Seller for any Losses arising from or relating to any breach of this Section 2.8(a). Any liabilities incurred in connection with any employee of Seller listed on Schedule 1.3 hereto or any former employee of Seller shall be retained by Seller and Buyer shall have no obligations with respect to such employees, including Severance Liabilities. In addition, any severance obligations due to any Hired Employees for any periods on or prior to the Closing Date shall be retained by Seller, and Buyer shall have no obligation with respect to such severance obligations. Seller shall indemnify Buyer for any Losses arising from or relating to any breach of this Section 2.8(a). .

          (b) Non-Competition . Seller agrees to waive any and all rights under, and not to enforce, any agreement restricting disclosure, competition, and/or confidentiality entered into with any Hired Employee with respect to Hired Employee’s employment with Buyer to the extent it relates to the Business.

          (c) WARN and Notice Laws . Seller shall comply with any severance payment, notice period or other obligation required under the Worker Adjustment Retaining and Notification Act, 29 U.S.C. section 2101, et seq. (“ WARN ”), the California Worker Adjustment Retaining and Notification Act, Ch. 4, Pt. 4, section 1400, et seq., California Labor Code (“ CA WARN ”) and any other applicable state, local or other laws requiring notifications in advance of employment separations or similar actions (collectively, “ Notice Laws ”) to the extent required relative to any employment losses or other action relative to those individuals identified on Schedule 1.3 attached hereto and any other employees of Seller other than the Hired Employees, which actions take place on or prior to the Closing Date. Seller shall indemnify Buyer for any Losses arising from or relating to any breach of this Section 2.8(c). Buyer shall be responsible for providing timely notice under WARN, CA WARN and any other Notice Laws to the extent required relative to any employment loss or other actions which take place on or after the Closing (except with respect to any employee listed on Schedule 1.3 and any employee terminated prior to the Closing Date). In the event Buyer terminates the employment of any Hired Employee on or after the Closing Date, Buyer shall comply with any severance payment, notice period or other obligation required under WARN, CA WARN and any other Notice Laws, and Buyer shall indemnify Seller for any Losses arising from or relating to any breach of this Section 2.8(c).

          (d) No Hire . Buyer or any of its Affiliates shall not hire as an employee or a consultant any employee listed on Schedule 1.3 for a period of 90 days following the Closing Date, unless Buyer agrees in writing to indemnify Seller for any Severance Liabilities paid by Seller for such employee in accordance with this Agreement.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER

     As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated herein, Seller hereby represents and warrants to Buyer that, as of the date of this Agreement and as of the Closing, except as set forth on the Schedules attached hereto which exceptions shall be deemed to be incorporated by reference in the following representations and warranties as if set for herein. The Schedules will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this ARTICLE III and disclosures in the Schedule will be subject to the terms of Section 11.9.

     Section 3.1 Organization, Good Standing, Qualification and Authority . Schedule 3.1(a) sets forth for Seller and each subsidiary of Seller (i) its name and jurisdiction of incorporation, (ii) the number of shares of authorized capital stock of each class of its capital stock, (iii) the number of issued and outstanding shares of each class of its capital stock, the names of the holders thereof, and the number of shares held by each such holder, (iv) the number of shares of its capital stock held in treasury, and (v) its directors and officers. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware (or Canada, with respect to NG Canada), with all requisite corporate power and authority to own, lease and use the Transferred Assets as they are currently owned, leased and used and to conduct the Business as it is currently conducted. Seller is qualified to do business as a foreign corporation in each jurisdiction in which the character of the properties owned, leased or operated by the Business make such qualification necessary except where the absence of such qualification could not reasonably be expected to result in a Material Adverse Effect.

     Seller has the requisite corporate power and authority to execute, deliver and carry out the terms of this Agreement and the other Transaction Documents to which it is a party. The execution, delivery and consummation of this Agreement and the other Transaction Documents to which it is a party have been duly authorized by all necessary corporate action on the part of Seller. This Agreement and the other Transaction Documents to which it is a party, upon due execution and delivery thereof, shall constitute the valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.

     Section 3.2 No Conflict or Violation . Neither the execution and delivery of this Agreement or the other Transaction Document to which Seller is a party, nor the consummation of the transactions contemplated hereby or thereby, will result in:

          (a) a violation of or a conflict with any provision of the organizational documents of Seller;

          (b) a breach of, or a default under or result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any term or provision of, any Contract which would reasonably be expected to result in a Material Adverse Effect; or

          (c) a violation by Seller of any Law, which violation would reasonably be expected to result in a Material Adverse Effect.

     Section 3.3 Consents and Approvals . No consent, approval or authorization of, or declaration, filing or registration with, any Governmental Authority, or any other Person is required to be made or obtained by Seller in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, except for consents, approvals or authorizations, declarations, filings or registrations, the failure of which to obtain would not reasonably be expected to result in a Material Adverse Effect. Seller does not need to give any notice to, make any filing with any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to herein), except where the failure to give any such notice or make any such filing would reasonably be expected to result in a Material Adverse Effect.

     Section 3.4 Title to Assets; Sufficiency . Seller has good and marketable title to, or a valid leasehold interest in, the Transferred Assets owned, used and leased by it, free and clear of all Encumbrances. Except as provided in the Transition Services Agreement, the Transferred Assets are suitable for the purposes for which they are presently used and when taken together, are sufficient to operate the Business as currently operated.

     Section 3.5 Real Property . Schedule 3.5 sets forth a complete and correct list of all real properties or premises that the Seller leases or utilizes in whole or in part in connection with the Business. Seller does not own in whole or in part any real property or premises in connection with the Business.

     Section 3.6 Financial Statements . Attached hereto as Exhibit G are the following financial statements (collectively the “ Financial Statements ”): (i) balance sheets and statements of income as of and for the fiscal year ended December 31, 2006 of Seller (the “ Most Recent

Fiscal Year End ”) as included in the Parent’s audited financial statements for the same period, as a reportable segment; and (ii) unaudited balance sheets and statements of income (the “Most Recent Financial Statements”) as of and for the month ended August 31, 2007 of Seller (the “ Most Recent Fiscal Month End ”). The Financial Statements (including the notes thereto) have been prepared in all material respects in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, present fairly the financial condition of Seller as of such dates and the results of operations of Seller for such periods, are correct and complete, and are consistent with the books and records of Seller (which books and records are correct and complete). Seller maintains a separate cash account or accounts for the Business (into which Seller deposits all of the receipts of the Business and out of which Seller makes all of the disbursements of the Business).

     Section 3.7 Events Subsequent to Most Recent Fiscal Year End . Since the Most Recent Fiscal Year End, there has not been any Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.7 attached hereto, since that date:

          (a) Seller has not sold, leased, transferred, or assigned any of its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;

          (b) Seller has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $175,000 or outside the Ordinary Course of Business;

          (c) no party (including Seller) has accelerated, terminated, modified, or cancelled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than $100,000 to which Seller is a party or by which it is bound;

          (d) Seller has not imposed or permitted to exist any Encumbrance upon any of the Transferred Assets, tangible or intangible;

          (e) Seller has not made any capital expenditure (or series of related capital expenditures) either involving more than $100,000 or outside the Ordinary Course of Business;

          (f) Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions) either involving more than $100,000 or outside the Ordinary Course of Business;

          (g) Seller has not issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $50,000 singly or $100,000 in the aggregate;

          (h) Seller has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;

          (i) Seller has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $100,000 or outside the Ordinary Course of Business;

          (j) Except for the Intellectual Property covered under the Software License Agreement and the Trademark License Agreement, Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property;

          (k) there has been no change made or authorized in the charter or bylaws of Seller;

          (l) Seller has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property;

          (m) Seller has not made any loan to, or entered into any other transaction with, any of the directors, officers, and employees of Seller outside the Ordinary Course of Business;

          (n) Seller has not entered into any employment contract, written or oral, or modified the terms of any existing such contract or agreement for current employees paid in excess of $100,000 per year;

          (o) Seller has not granted any increase in the base compensation of any of the directors, officers, and employees of Seller outside the Ordinary Course of Business;

          (p) Seller has not made any other change in employment terms for any of the directors, officers, and employees of Seller outside the Ordinary Course of Business;

          (q) there has not been any other occurrence, event, incident, action, failure to act, or transaction (including payments to third parties) outside the Ordinary Course of Business involving Seller, except for occurrences, events, incidents, actions, failures to act, or transactions which would not reasonably be expected to result in a Material Adverse Effect;