ASSET PURCHASE AGREEMENT BY AND BETWEEN PROGRESS DEVELOPMENT CORPORATION, EASYASK, INC., AND SIGMA PARTNERS LLP, AS INDEMNIFICATION REPRESENTATIVE DATED AS OF APRIL 29, 2005

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Title: ASSET PURCHASE AGREEMENT BY AND BETWEEN PROGRESS DEVELOPMENT CORPORATION, EASYASK, INC., AND SIGMA PARTNERS LLP, AS INDEMNIFICATION REPRESENTATIVE DATED AS OF APRIL 29, 2005
Governing Law: Massachusetts Date: 5/5/2005
Industry: Software and Programming Law Firm: Mintz Levin Sector: Technology

ASSET PURCHASE AGREEMENT BY AND BETWEEN PROGRESS DEVELOPMENT CORPORATION, EASYASK, INC., AND SIGMA PARTNERS LLP, AS INDEMNIFICATION REPRESENTATIVE DATED AS OF APRIL 29, 2005, Parties: easyask inc , progress development corporation

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EXHIBIT 99.1

EXECUTION COPY

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ASSET PURCHASE AGREEMENT

BY AND BETWEEN

PROGRESS DEVELOPMENT CORPORATION,

EASYASK, INC., AND

SIGMA PARTNERS LLP,

AS INDEMNIFICATION REPRESENTATIVE

DATED AS OF APRIL 29, 2005

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TABLE OF CONTENTS

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ARTICLE I PURCHASE AND SALE OF ASSETS; CLOSING................................................... 1

1.1 PURCHASE AND SALE OF ACQUIRED ASSETS........................................................... 1

1.2 EXCLUDED ASSETS................................................................................ 1

1.3 ASSUMPTION OF LIABILITIES...................................................................... 2

1.4 EXCLUDED LIABILITIES........................................................................... 2

1.5 CONTINUING LIABILITIES......................................................................... 4

1.6 CLOSING........................................................................................ 4

1.7 CLOSING DELIVERIES............................................................................. 4

1.8 FURTHER ASSURANCES............................................................................. 5

1.9 AUTHORIZATION OF THIS AGREEMENT, THE ESCROW AGREEMENT AND THE ESCROW AGENT..................... 6

1.10 ALLOCATION OF PURCHASE PRICE................................................................... 6

ARTICLE II PURCHASE PRICE......................................................................... 6

2.1 PURCHASE PRICE................................................................................. 6

2.2 ESCROW DEPOSIT; DELIVERY OF PURCHASE PRICE..................................................... 6

(a) Escrow Agreement.......................................................................... 6

(b) Escrow Deposit............................................................................ 7

(d) Payment of Transaction Liabilities........................................................ 7

ARTICLE III REPRESENTATIONS AND WARRANTIES......................................................... 7

3.1 REPRESENTATIONS AND WARRANTIES OF SELLER....................................................... 7

(a) Organization; Good Standing; Qualification and Power...................................... 7

(b) Subsidiaries; Equity Investments.......................................................... 8

(d) Authority; No Consents.................................................................... 8

(e) Financial Information..................................................................... 9

(f) Absence of Undisclosed Liabilities........................................................ 9

(g) Absence of Changes........................................................................ 10

(h) Tax Matters............................................................................... 11

(i) Title to Assets, Properties and Rights and Related Matters................................ 12

(j) Real Property - Owned or Leased........................................................... 13

(k) Intellectual Property..................................................................... 13

(l) Software.................................................................................. 16

(m) Agreements, Etc........................................................................... 16

(n) No Defaults............................................................................... 18

(o) Litigation, Etc........................................................................... 18

(p) Accounts and Notes Receivable............................................................. 19

(q) Accounts and Notes Payable................................................................ 19

(r) Compliance; Governmental Authorizations and Consents...................................... 19

(s) Environmental Matters..................................................................... 19

(t) Employees................................................................................. 20

(u) Employee Benefit Plans and Contracts...................................................... 21

(v) Insurance................................................................................. 24

(w) Brokers................................................................................... 24

(x) Related Transactions...................................................................... 24

(y) Minute Books.............................................................................. 24

(z) Certain Practices......................................................................... 24

(aa) Projections.............................................................................. 24

(bb) Business Generally....................................................................... 25

(cc) Disclosure............................................................................... 25

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3.2 REPRESENTATIONS AND WARRANTIES OF BUYER........................................................ 25

(a) Organization; Good Standing; Qualification and Power...................................... 25

(b) Authority................................................................................. 25

(d) Brokers................................................................................... 25

ARTICLE IV CONDITIONS PRECEDENT................................................................... 25

4.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS......................................................... 25

(a) Approvals................................................................................. 26

(b) Legal Action.............................................................................. 26

4.2 ESCROW AGREEMENT............................................................................... 26

4.3 ASSIGNMENT OF REAL ESTATE LEASE/KEY LICENSES REQUIRING CONSENT TO ASSIGNMENT................... 26

4.4 CONDITIONS TO OBLIGATIONS OF BUYER............................................................. 26

(a) Representations and Warranties of Seller.................................................. 26

(b) Performance of Obligations of Seller...................................................... 26

(d) Acceptance by Counsel to Buyer............................................................ 27

(e) Consents and Approvals.................................................................... 27

(f) Agreements................................................................................ 27

(g) Default Under Agreements.................................................................. 27

(h) Approval by Board of Directors of Buyer................................................... 27

(i) Evidence of Corporate Authority........................................................... 27

(j) Key Employees and Other Transferred Employees............................................. 27

(k) Change of Name............................................................................ 28

(l) Completion of Investigation............................................................... 28

(m) No Adverse Change......................................................................... 28

(n) Stockholder Voting Agreements............................................................. 28

4.5 CONDITIONS TO OBLIGATIONS OF SELLER............................................................ 28

(a) Representations and Warranties of Buyer................................................... 28

(b) Performance of Obligations of Buyer....................................................... 28

(d) Closing Cash Payment...................................................................... 28

(e) Evidence of Corporate Authority........................................................... 29

(f) Acceptance by Counsel to Seller........................................................... 29

(g) Authorization of Agreement................................................................ 29

(h) Approval by Board of Directors of Buyer................................................... 29

(i) Key Employees and Other Transferred Employees............................................. 29

ARTICLE V ADDITIONAL AGREEMENTS.................................................................. 29

5.1 CONDUCT OF BUSINESS OF SELLER.................................................................. 29

(a) Charter Documents......................................................................... 30

(b) Dividends; Changes in Capital Stock....................................................... 30

(d) Material Contracts........................................................................ 30

(e) Issuance of Securities.................................................................... 30

(f) Intellectual Property..................................................................... 30

(g) Dispositions.............................................................................. 30

(h) Indebtedness.............................................................................. 30

(i) Leases.................................................................................... 30

(j) Capital Expenditures...................................................................... 30

(k) Insurance................................................................................. 31

(l) Termination or Waiver..................................................................... 31

(m) Employee Benefit Plans; New Hires; Pay Increases.......................................... 31

(n) Severance Agreement....................................................................... 31

(o) Lawsuits.................................................................................. 31

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EXECUTION COPY - APRIL 29, 2005 2

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(p) Acquisitions.............................................................................. 31

(q) Taxes..................................................................................... 31

(r) Notices................................................................................... 31

(s) Revaluation............................................................................... 31

(t) Other Transactions........................................................................ 31

(u) Confidentiality Agreements................................................................ 31

(v) Related Party Transactions................................................................ 32

(w) Subsidiaries.............................................................................. 32

(x) Principal Business........................................................................ 32

(y) General................................................................................... 32

5.2 COOPERATION.................................................................................... 32

5.3 EXCLUSIVITY; STANDSTILL........................................................................ 32

5.4 CERTAIN INFORMATION REQUIRED BY THE CODE....................................................... 33

5.5 LITIGATION COOPERATION......................................................................... 33

5.6 RECORD MAINTENANCE............................................................................. 33

5.7 SELLER STOCKHOLDER APPROVAL; EFFORTS TO CONSUMMATE............................................. 33

5.8 PUBLIC ANNOUNCEMENTS........................................................................... 34

5.9 EMPLOYMENT MATTERS............................................................................. 34

5.10 TRANSFER TAXES................................................................................. 34

5.11 REQUIRED CONSENTS; SUBSEQUENT EVENTS........................................................... 34

ARTICLE VI INDEMNIFICATION........................................................................ 35

6.1 DEFINITIONS.................................................................................... 35

6.2 INDEMNIFICATION GENERALLY...................................................................... 36

6.3 ASSERTION OF CLAIMS............................................................................ 37

6.4 NOTICE AND DEFENSE OF THIRD PARTY CLAIMS....................................................... 38

6.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES..................................................... 39

6.6 INDEMNIFICATION REPRESENTATIVE................................................................. 39

6.7 REMEDIES AVAILABLE............................................................................. 40

ARTICLE VII TERMINATION............................................................................ 40

7.1 TERMINATION.................................................................................... 40

7.2 EFFECT OF TERMINATION; SURVIVAL................................................................ 41

ARTICLE VIII MISCELLANEOUS.......................................................................... 41

8.1 EXPENSES....................................................................................... 41

8.2 ENTIRE AGREEMENT............................................................................... 41

8.3 INTERPRETATION................................................................................. 41

8.4 KNOWLEDGE DEFINITION........................................................................... 42

8.5 NOTICES........................................................................................ 42

8.6 COUNTERPARTS................................................................................... 43

8.7 GOVERNING LAW.................................................................................. 44

8.8 BENEFITS OF AGREEMENT.......................................................................... 44

8.9 PRONOUNS....................................................................................... 44

8.10 AMENDMENT, MODIFICATION AND WAIVER............................................................. 44

8.11 NO THIRD PARTY BENEFICIARIES................................................................... 44

8.12 CONSENTS....................................................................................... 44

8.13 INTERPRETATION................................................................................. 44

8.14 NO JOINT VENTURE............................................................................... 44

8.15 SPECIFIC PERFORMANCE........................................................................... 45

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EXECUTION COPY - APRIL 29, 2005 3

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INDEX TO DEFINED TERMS

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ACQUIRED ASSETS.......................................... 1.1

ACTIONS.................................................. 3.1(o)

AFFILIATE................................................ 1.4(a)

AGREEMENT................................................ Preamble

ALLOCATION STATEMENT..................................... 1.10(a)

ARTICLES OF ORGANIZATION................................. 3.1(a)

ASSUMED CONTRACTS........................................ 2

ASSUMED LIABILITIES...................................... 1.3

BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT........ 1.7(a)

BUSINESS................................................. Preamble

BUYER.................................................... Preamble

BUYER AFFILIATE.......................................... 8.8

BUYER EVENT OF INDEMNIFICATION........................... 6.1(a)(i)

BUYER INDEMNIFIED PERSONS................................ 6.1(b)(i)

BUYER INDEMNIFYING PERSONS............................... 6.1(c)(ii)

CLOSING.................................................. 1.6

CLOSING CASH PAYMENT..................................... 2.1

CLOSING DATE............................................. 1.6

COBRA COVERAGE........................................... 3.1(u)(iv)

CODE..................................................... 3.1(h)(iii)

COPYRIGHTS............................................... 3.1(k)

CURRENT EMPLOYEE......................................... 3.1(m)(vii)

DESIGNATED PERSONS....................................... 3.1(o)

DISCLOSURE SCHEDULE...................................... 3.1

EFFECTIVE TIME........................................... 1.6

EMPLOYEE................................................. 3.1(u)

EMPLOYEE PLANS........................................... 3.1(u)

ENCUMBRANCES............................................. 1.1

ENVIRONMENTAL LAWS....................................... 3.1(s)(i)

ERISA.................................................... 3.1(u)(i)

ERISA AFFILIATE.......................................... 3.1(u)

ESCROW AGENT............................................. 2.2(a)

ESCROW AGREEMENT......................................... 2.2(a)

ESCROW FUNDS............................................. 2.2(b)

EVENT OF INDEMNIFICATION................................. 6.1(a)

EXCESS TRANSACTION LIABILITIES........................... 2.1(b)

EXCLUDED ASSETS.......................................... 1

EXCLUDED LIABILITIES..................................... 1.4

FAS NO. 5................................................ 3.1(f)

FRAUD CLAIMS............................................. 6.2(e)

GAAP..................................................... 3.1(e)(ii)

GOVERNMENTAL AUTHORITY................................... 3.1(d)

INDEMNIFIED PERSONS...................................... 6.1(b)

INDEMNIFYING PERSONS..................................... 6.1(c)

IP RIGHTS................................................ 3.1(k)

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EXECUTION COPY - APRIL 29, 2005 4

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IRS...................................................... 3.1(h)(iii)

KEY EMPLOYEE............................................. 28

KEY EMPLOYEE AGREEMENT................................... 1.7(d)

LEASED REAL PROPERTY..................................... 3.1(j)

LEASES................................................... 3.1(j)

LIABILITY................................................ 1.4(a)

LICENSE AGREEMENTS....................................... 3.1(k)

LICENSED SOFTWARE........................................ 3.1(l)

LOSSES................................................... 6.2(a)

MATERIAL ADVERSE EFFECT.................................. 3.1(a)

MULTIEMPLOYER PLAN....................................... 3.1(u)

NOTICE OF CLAIM.......................................... 6.3

OPEN SOURCE MATERIALS.................................... 3.1(c)(i)

ORDINARY COURSE OF BUSINESS.............................. 1.3

OTHER ASSIGNMENTS........................................ 1.7(d)

PATENT ASSIGNMENT........................................ 1.7(b)

PATENTS.................................................. 3.1(k)

PENSION PLANS............................................ 3.1(u)

PRINCIPAL STOCKHOLDERS................................... 4.2

PROJECTIONS.............................................. 3.1(aa)

PROPOSED SETTLEMENT...................................... 6.4(d)

PURCHASE PRICE........................................... 2.1

RELATED AGREEMENT........................................ 1.7(e)

REPRESENTATIVES.......................................... 5.3

SELLER................................................... Preamble

SELLER EVENT OF INDEMNIFICATION.......................... 6.1(a)(ii)

SELLER FINANCIAL STATEMENTS.............................. 3.1(e)

SELLER INDEMNIFIED PERSONS............................... 6.1(b)(ii)

SELLER INDEMNIFYING PERSONS.............................. 6.1(c)(i)

SELLER INTERIM FINANCIAL STATEMENTS...................... 3.1(e)

SELLER STOCK............................................. 3.1(c)(i)

STOCKHOLDER VOTING AGREEMENT............................. 4.4(n)

SURVIVAL DATE............................................ 6.5

TAX RETURNS.............................................. 3.1(h)(i)

TAXES.................................................... 3.1(h)(i)

THIRD PARTY CLAIM........................................ 6.4

TRADE SECRETS............................................ 3.1(k)

TRADEMARK ASSIGNMENT..................................... 1.7(c)

TRADEMARKS............................................... 3.1(k)

TRANSACTION LIABILITIES.................................. 2,1(b)

TRANSFERRED EMPLOYEE..................................... 3.1(g)(ix)

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EXECUTION COPY - APRIL 29, 2005 2

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ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT (this "AGREEMENT") dated as of April 29, 2005, by

and among PROGRESS DEVELOPMENT CORPORATION, a Massachusetts corporation

("BUYER"), EASYASK, INC., a Massachusetts corporation ("SELLER"), and SIGMA

PARTNERS LLP, as the Indemnification Representative (the "INDEMNIFICATION

REPRESENTATIVE").

WHEREAS, Seller is in the business of providing search, navigation and

information retrieval solutions, which provide access and insight into critical

content through products for enterprise, e-commerce and independent software

vendors (the "BUSINESS");

WHEREAS, subject to the terms and conditions set forth in this Agreement,

Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller,

substantially all of the assets of Seller and Seller wishes to transfer to

Buyer, and Buyer has agreed to assume, certain of Seller's obligations and

liabilities associated with the Business, and in connection therewith the

parties hereto wish to make certain agreements related to such purchase, sale,

assignment and assumption;

WHEREAS, as a condition to the willingness of, and as an inducement to,

Buyer and Seller to enter into this Agreement, contemporaneously with the

execution and delivery of this Agreement, Seller, Buyer and certain other

parties are entering into the Related Agreements (as defined below).

NOW, THEREFORE, in consideration of the mutual benefits to be derived from

this Agreement and the representations, warranties, covenants, agreements,

conditions and promises contained herein and therein, the parties hereby agree

as follows:

ARTICLE I

PURCHASE AND SALE OF ASSETS; CLOSING

1.1 PURCHASE AND SALE OF ACQUIRED ASSETS. Upon the terms and subject to

the conditions set forth in this Agreement, at the Closing, Seller shall sell,

transfer, assign and deliver to Buyer, and relinquish to Buyer in perpetuity,

free and clear of any security interests, mortgages, liens, pledges, guarantees,

charges, easements, reservations, restrictions, clouds, equities, rights of way,

options, rights of first refusal, and all other encumbrances, whether or not

relating to the extension of credit or the borrowing of money (collectively

"ENCUMBRANCES"), all right, title and interest in and to all of the assets,

properties, good will and rights of Seller of every kind and nature, real,

personal or mixed, tangible or intangible, owned, used or held for use by Seller

(the "ACQUIRED ASSETS").

1.2 EXCLUDED ASSETS. All rights of Seller under this Agreement and the

agreements and instruments executed and delivered to Seller by Buyer pursuant to

this Agreement shall not constitute Acquired Assets. Seller represents and

warrants that the assets set forth in Section 1.2 of the Disclosure Schedule is

a complete list of excluded assets (the "EXCLUDED ASSETS").

EXECUTION COPY - APRIL 29, 2005

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1.3 ASSUMPTION OF LIABILITIES. Buyer shall not assume, discharge or

perform any liability other than the following Liabilities of Seller

(collectively, the "ASSUMED LIABILITIES"), all of which Buyer will assume and

pay, discharge or perform, as appropriate, from and after the Effective Time in

accordance with the provisions of the Bill of Sale, Assignment and Assumption

Agreement:

(a) Liabilities arising under the contracts disclosed in Schedules

3.1(j)(i)-(ii), 3.1(k)(vi) and (vii), 3.1(m)(i), 3.1(m)(ii), 3.1(m)(vi),

3.1(m)(ix) - 3.1(m)(xi), 3.1(m)(xvi), 3.1(m)(xvi) - (xix) of the Seller

Disclosure Schedule (the "ASSUMED CONTRACTS"), except to the extent, in respect

of each contract so assumed, the representations of Seller contained in Sections

3.1(j), (k) and (m) in respect of each such contract so assumed are untrue in

any material respect at the Closing; provided, that Buyer shall not assume, and

does not hereby agree to pay, discharge or perform any damages relating in any

manner to or arising from any breach or default of Seller or any of its

Affiliates thereof occurring on or prior to the Closing Date;

(b) Accounts payable and accrued liabilities of Seller consisting of

(i) those liabilities at March 31, 2005 as set forth on Schedule 1.3(b) hereto,

and (ii) liabilities incurred thereafter through the Closing Date, provided that

all such liabilities (i) relate to the Business, (ii) arise in the operation of

the Business consistent with Seller's usual and customary practices in managing

and operating the Business as they existed on March 31, 2005 and (iii) are

necessary to maintain the ongoing operation of the Business without regard to

the transactions contemplated hereby ("ORDINARY COURSE OF BUSINESS"); provided,

however, that such assumed liabilities shall not include Excluded Liabilities

and any obligations which would constitute Excess Transaction Liabilities; and

Seller's Disclosure Schedule.

1.4 EXCLUDED LIABILITIES. Buyer is not assuming any Liabilities of Seller

or any of its Stockholders except as expressly provided in Section 1.3. Buyer

shall have no liability whatsoever for any Liabilities of Seller which are not

specifically assumed under Section 1.3, and, without limiting the generality of

the foregoing, Buyer shall not be deemed to assume, nor shall it assume the

following Liabilities, unless such Liabilities are disclosed on the Disclosure

Schedule, the Seller Interim Financial Statements or arise in the Ordinary

Course of Business after March 31, 2005 (the "EXCLUDED LIABILITIES"):

(a) any and all Liabilities arising under or relating to any written

or oral contracts, agreements, guaranties, understandings, deeds, mortgages,

indentures, leases, licenses, commitments, undertakings or other documents or

instruments to which Seller or any entity, directly or indirectly, through one

or more intermediaries, controlling, controlled by or under common control with

such person ("AFFILIATE"), liability or obligation of any nature whether matured

or unmatured, fixed or contingent, secured or unsecured, accrued, absolute or

otherwise ("LIABILITY") hereof is a party, other than the Assumed Contracts to

the extent specifically set forth in Section 1.3(a);

(b) any and all Liabilities of Seller or any of its Affiliates in

respect of any indebtedness for or guarantees of borrowed money;

EXECUTION COPY - APRIL 29, 2005 2

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(d) any and all Liabilities of Seller or any of its Affiliates for

or in respect of Taxes that relate to the period ending with the close of

business on the Closing Date , including any Taxes based on the transactions

contemplated by this Agreement, all of which shall be paid by Seller;

(e) any and all Liabilities of Seller or any of its Affiliates

arising out of or relating, directly or indirectly, to any property of which

Seller or such Affiliate has disposed or proposed to dispose, including any and

all Liabilities to any other person or entity incurred in connection with any

sale or proposed sale of (i) all or any substantial part of Seller or any

Affiliate, or any other business combination or proposed business combination,

(ii) any real property of Seller or any Affiliate, (iii) any other business or

(iv) any securities of Seller, any Affiliate or any other entity;

(f) any and all Liabilities arising out of or relating, directly or

indirectly, to any Employee Plan, the Management Bonus Plan or the termination

thereof ;

(g) any and all Liabilities with respect to fees and expenses

incurred by Seller or any of its Affiliates in connection with the sale or

proposed sale or other disposition or proposed disposition of all or part of the

assets or capital stock of Seller or any Affiliate (excluding the Transaction

Liabilities);

(h) any and all Liabilities of Seller or any of its Affiliates to

any present or former employee or independent contractor of Seller or any

Affiliate thereof, including any Liabilities arising out of the transactions

contemplated by this Agreement such as accrued vacation time (including the

Transaction Liabilities and excluding accrued vacation time for Transferred

Employees);

(i) any and all Liabilities of Seller or any of its Affiliates for

any Actions against Seller or any Affiliate, including any Actions pending or

threatened against Seller as of the Closing Date;

(j) any and all Liabilities of Seller or any of its Affiliates for

damage or injury to person or property including, without limitation, those

resulting from or arising out of environmental claims;

(k) any and all Liabilities of Seller or any of its Affiliates

arising out of or resulting from non-compliance with any Federal, state, local

or foreign laws, ordinances, regulations or orders;

(l) any and all Liabilities of Seller or any of its Affiliates

arising out of, relating to or resulting from any obligation to indemnify any

person or entity (including officers and directors of Seller), other than

indemnification obligations to customers as specifically set forth in any of the

Assumed Contracts;

EXECUTION COPY - APRIL 29, 2005 3

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(m) any and all Liabilities of Seller or any of its Affiliates

arising under this Agreement or any of the Related Agreements, including the

Transaction Liabilities and Excess Transaction Liabilities;

(n) any and all other Liabilities attributable in any manner to the

Excluded Assets;

(o) any and all Liabilities of Seller's stockholders;

(p) any and all other Liabilities of Seller or any of its Affiliates

that are not Assumed Liabilities; and

(q) any and all Liabilities of Seller to Stockholders, whether such

Liabilities constitute debt, equity or fees.

1.5 CONTINUING LIABILITIES. Notwithstanding anything contained herein to

the contrary, to the extent that any damages imposed on Buyer by operation of

law or otherwise in connection with, or which otherwise arises out of or in

relation to, the transactions contemplated hereby (other than Buyer's assumption

of the Assumed Liabilities assumed by it pursuant to Section 1.3), results from

or arises out of an event or condition which is continuing or continuous in

nature, Buyer shall assume and discharge only that portion of such damage that

results from or arises out of that part of the event which occurs or condition

which exists after the Closing, without, however, releasing Seller from its

obligation to discharge that portion of such damage that results from that part

of the event which occurs or condition which exists prior to the Closing;

provided, however, that Seller shall discharge all of such continuing or

continuous damages, including, without limitation, those Assumed Liabilities

assumed by Buyer pursuant to Section 1.3 if and to the extent they result from a

breach by Seller of any of its representations, warranties or covenants

hereunder.

1.6 CLOSING. The closing of the transactions contemplated by this

Agreement (the "CLOSING") will take place at 10:00 a.m. (Eastern time) on May 6,

2005 (the "CLOSING DATE"), unless another date is agreed to in writing by the

parties. The Closing shall take place at the offices of Mintz, Levin, Cohn,

Ferris, Glovsky and Popeo, P.C., One Financial Center, Boston, Massachusetts,

unless another time or place is agreed to in writing by the parties. All

transactions contemplated to take place at the Closing shall be deemed to be

effective as of 10:00 a.m. on the Closing Date (the "EFFECTIVE TIME") and events

taking place, and periods ending after the Effective Time shall be deemed to

have taken place, or ended, after the Closing.

1.7 CLOSING DELIVERIES. At the Closing, in addition to the agreements set

forth in Article IV, the parties shall execute and deliver the following

documents:

(a) Seller and Buyer shall execute and deliver the Bill of Sale,

Assignment and Assumption Agreement in the form of EXHIBIT A attached hereto

(the "BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT") pursuant to which

Seller will transfer and assign to Buyer all of the Acquired Assets and Buyer

will assume the Assumed Liabilities;

EXECUTION COPY - APRIL 29, 2005 4

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(b) Seller will execute and deliver the Patent Assignment in the

form of EXHIBIT B, attached hereto (the "PATENT ASSIGNMENT") pursuant to which

Seller will transfer and assign to Buyer the Patents being acquired by Buyer

pursuant to this Agreement;

form of EXHIBIT C attached hereto (the "TRADEMARK ASSIGNMENT") pursuant to which

Seller will transfer and assign to Buyer the Trademarks being acquired by Buyer

pursuant to this Agreement;

(d) Seller will deliver Non-Competition, Confidentiality and

Assignment of Inventions Agreements executed by each of the Key Employees in the

form of EXHIBIT D attached hereto (the "KEY EMPLOYEE AGREEMENTS"); and

(e) All such other bills of sale, assignment and assumption

agreements, endorsements, copyright or other intellectual property right

assignments, consents and other good and sufficient instruments and documents of

conveyance and transfer, all dated the Closing Date and in a form reasonably

satisfactory to Buyer, as Buyer reasonably shall deem necessary or appropriate

to vest in or confirm to Buyer full and complete right, title and interest in

and to all of the Acquired Assets (collectively, the "OTHER ASSIGNMENTS")(all

documents in this Section 1.7, together with the Escrow Agreement and the

Stockholders Voting Agreement defined herein, being collectively referred to as

the "RELATED AGREEMENTS").

On the Closing Date, Seller shall transfer all of the Acquired Assets,

including the IP Rights, to such location or locations as Buyer reasonably may

request.

1.8 FURTHER ASSURANCES. At any time and from time to time after the

Closing, at the request of Buyer and without further consideration, Seller will

execute and deliver such other instruments of sale, transfer, conveyance,

assignment and confirmation, and will take such further action, as may be

requested in order to more effectively transfer, convey and assign to Buyer, and

to confirm Buyer's title to, the Acquired Assets, and each of the parties shall

execute such other documents and take such further action as may be required or

desirable to carry out the provisions of this Agreement and the transactions

contemplated hereby. Without limiting the generality of the foregoing, Seller

shall, from time to time and at no cost to Buyer, cooperate with, and take all

action requested by, Buyer to effectively transition the Acquired Assets and the

operation and ownership of the Business, including, without limitation, all

financial information relating to the Business, all clients, suppliers and

vendors of the Business and employees, independent contractors and agents of

Seller who perform services in connection with the operation of the Business (it

being understood that Seller shall assist Buyer in identifying such employees,

independent contractors and agents) and all technology (including software

licenses), infrastructure and infrastructure-related systems used in connection

with the operation of the Business, from Seller to Buyer, and shall make its

officers, employees and agents available to, and direct such officers, employees

and agents to cooperate with, Buyer for such purposes. In addition, Seller shall

provide Buyer with a minimum of ten (10) business days notice that Seller is

terminating a group health plan (as that term is defined in Section 5000(b)(1)

of the Code) and the name, address and telephone number of any current or

potential COBRA covered beneficiary.

EXECUTION COPY - APRIL 29, 2005 5

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1.9 AUTHORIZATION OF THIS AGREEMENT, THE ESCROW AGREEMENT AND THE ESCROW

AGENT. Approval of this Agreement by the stockholders of Seller shall constitute

approval and ratification by Seller of (i) the provisions of this Agreement and

(ii) the designation of the Escrow Agent and the terms and provisions of the

Escrow Agreement.

1.10 ALLOCATION OF PURCHASE PRICE. The parties, as a condition to Closing,

shall agree on the allocation of the Purchase Price for tax purposes on mutually

agreeable terms, which allocation shall be binding upon Buyer and Seller. Buyer,

the Seller and their respective Affiliates shall report, act and file Tax

Returns (including, but not limited to, Internal Revenue Service Form 8594) in

all respects and for all purposes consistent with such allocation, except as may

be required by law.

ARTICLE II

PURCHASE PRICE

2.1 PURCHASE PRICE.

(a) The entire consideration (the "PURCHASE PRICE") payable by Buyer

for the Acquired Assets shall be an aggregate of $9,250,000 in cash (the

"CLOSING CASH PAYMENT").

(b) Those transaction costs and employee severance payments due to

the individuals and in the amounts set forth on Schedule 2.1(b) (the

"TRANSACTION LIABILITIES"), in any event not to exceed $600,000 shall be paid

(such $600,000 limit to be reduced by the amount of severance pay for those

employees continuing on a temporary basis with Buyer after the Closing as

indicated on Schedule 2.1(b)) at the Closing from Seller's existing cash and

cash equivalent accounts otherwise due to Buyer.

aggregate or exceeding the individual limits set forth on Schedule 2.1.(b) (the

"EXCESS TRANSACTION LIABILITIES") shall be the sole and exclusive responsibility

of the Seller to be paid after the Closing and shall not be paid from cash and

cash equivalent accounts otherwise due to Buyer, and (ii) as consideration for

payment by Buyer through Seller of the Transaction Liabilities, simultaneously

with the receipt of payment by each individual or entity named therein, such

individual or entity shall execute a general release running in favor of each of

Seller and Buyer, and their officers, directors and affiliates, in such form as

reasonably requested by Buyer.

(d) At the Closing, Seller shall deliver a certificate of Seller's

President or Chief Executive Officer to Buyer setting forth the actual amount of

Transaction Liabilities and Excess Transaction Liabilities, if any

2.2 ESCROW DEPOSIT; DELIVERY OF PURCHASE PRICE.

(a) ESCROW AGREEMENT. Reference is made to the escrow agreement

dated as of the Closing Date between Seller, Buyer, the Indemnification

Representative, the Principal Stockholders and U.S. Bank Portfolio Services,

Inc. (the "ESCROW AGENT") in the form of EXHIBIT E attached hereto (the "ESCROW

AGREEMENT"), for the purpose of, among other things,

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<PAGE>

securing the indemnification obligations of the Seller Indemnifying Parties

pursuant to Article VI hereof.

(b) ESCROW DEPOSIT. At the Closing, Buyer shall cause to be

deposited with the Escrow Agent, and Seller, by its execution and delivery of

this Agreement, hereby authorizes and directs Buyer to make such deposit on its

behalf in the amount of $1,387,500 in cash (the "ESCROW FUNDS"), to be held by

the Escrow Agent in accordance with the provisions of the Escrow Agreement.

to Seller the Closing Cash Payment (net of the Escrow Funds).

(d) PAYMENT OF TRANSACTION LIABILITIES. At the Closing, Seller shall

pay the costs of the Transaction Liabilities and, after the Closing, shall pay

from its own accounts any Excess Transaction Liabilities to those entities and

individuals set forth on Schedule 2.1(b). Buyer shall have no obligation to pay

any Transaction Liabilities (other than to allow Seller to use cash and cash

equivalent accounts outstanding at the Closing to pay up to the amount of the

Transaction Liabilities) and the parties acknowledge and agree that none of the

Transaction Liabilities are being assumed by Buyer.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and

warrants to Buyer that, except as disclosed in the disclosure schedule dated the

date hereof, certified by Seller and delivered to Buyer simultaneously herewith

(which disclosure schedule shall contain specific references to the

representations and warranties to which the disclosures contained therein relate

provided that Seller will be deemed to have adequately disclosed with respect to

any section or subsection any matters that are clearly described elsewhere in

the disclosure schedule and which a person could reasonably infer relate to such

other representations and warranties) (the "DISCLOSURE SCHEDULE").

(a) ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER. Seller (i)

is a corporation duly organized, validly existing and in good standing under the

laws of the Commonwealth of Massachusetts, (ii) has all requisite corporate

power and authority to own, lease and operate its properties and assets and to

carry on its business as now being conducted, and as proposed to be conducted,

to enter into this Agreement and the Related Agreements to which Seller is a

party, to perform its obligations hereunder and thereunder, and to consummate

the transactions contemplated hereby and thereby and (iii) is duly qualified and

in good standing to do business in those jurisdictions where the failure to be

so qualified and in good standing could be reasonably likely to have a material

adverse effect on Seller, the Business (on a going-forward basis) or the

business, properties, condition (financial or otherwise), assets, liabilities,

operations, results of operations, prospects or affairs of Seller or of the

Business (on a going-forward basis)(a "MATERIAL ADVERSE EFFECT"). Seller has

delivered to Buyer true and complete copies of the Articles of Organization, and

all amendments thereto, as the same may have been restated (the "ARTICLES OF

ORGANIZATION") and by-laws of Seller, in each case as amended to the date

hereof.

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(b) SUBSIDIARIES; EQUITY INVESTMENTS. Seller does not currently have

nor has it ever had, any subsidiaries, nor does it currently own, or, has it

ever owned, any capital stock or other proprietary interest, directly or

indirectly, in any corporation, limited liability company, association, trust,

partnership, joint venture or other entity.

(i) The authorized capital stock of Seller consists of

18,813,788 shares of Seller common stock, par value $.01 and 433,000

shares of Seller's Series A Preferred Stock, $.01 par value, 1,823,805

shares of Seller's Series B Preferred Stock, $.01 par value, 3,965,937

shares of Seller's Series C Preferred Stock, $.01 par value, 8,003,447

shares of Seller's Series D Preferred Stock, $.01 par value, and 3,760,341

shares of Seller's Series E Preferred Stock, $.01 par value, (collectively

the "SELLER STOCK"). All outstanding shares of Seller Stock are as

described in Section 3.1(c) of the Disclosure Schedule. All outstanding

shares of Seller Stock are duly authorized, validly issued and

outstanding, fully paid and non-assessable, are owned beneficially and of

record by the stockholders as set forth in Section 3.1(c) of the

Disclosure Schedule and are not subject to preemptive rights created by

statute, the Articles of Organization or by-laws of Seller or any

agreement to which Seller is a party or by which it is bound. All

outstanding shares of Seller Stock were issued in compliance with

applicable Federal and state securities laws.

(ii) Except as set forth in Section 3.1(c) of the Disclosure

Schedule, there are no convertible securities or any security exchangeable

into or exercisable for such convertible securities, issued, reserved for

issuance or outstanding. There are no transfer restrictions or agreements,

instruments or understandings (whether written or oral, formal or

informal) of any character to which Seller or any stockholder is a party

or by which it, he or she is bound obligating Seller or any stockholder to

issue, deliver or sell, or cause to be issued, delivered or sold,

additional shares of Seller Stock or any convertible securities or

obligating Seller or any stockholder to grant, extend, accelerate the

vesting of or enter into any such option, warrant, equity security, call,

right, commitment, instrument, restriction, understanding or agreement.

There are no voting trusts, proxies or other agreements or understandings

with respect to the voting, transfer or disposition of the shares of

Seller Stock.

(d) AUTHORITY; NO CONSENTS. The execution, delivery and performance

by Seller of this Agreement and the Related Agreements to which it is a party

and the consummation of the transactions contemplated hereby and thereby have

been duly and validly authorized by all necessary corporate action on the part

of the Board of Directors of the Seller; and this Agreement has been, and the

Related Agreements to which it is a party when executed and delivered by Seller

will be, duly and validly executed and delivered and the valid and binding

obligations of Seller, enforceable against it in accordance with their

respective terms. The execution, delivery and performance of this Agreement or

the Related Agreements to which it is a party, the consummation by Seller of the

transactions contemplated hereby or thereby, nor compliance by Seller with any

provision hereof or thereof will (A) conflict with, (B) result in any violation

of, (C) cause a default under (with or without due notice, lapse of time or

both), (D) give rise to any right of termination, amendment, cancellation or

acceleration of any obligation

EXECUTION COPY - APRIL 29, 2005 8

<PAGE>

contained in or the loss of any benefit under or (E) result in the creation of

any Encumbrance on or against any assets, rights or property of Seller under any

term, condition or provision of (x) any instrument or agreement to which Seller

is a party, or by which Seller or any of its properties, assets or rights may be

bound or (y) any law, statute, rule, regulation, order, writ, injunction,

decree, permit, concession, license or franchise of any Federal, state,

municipal, foreign or other governmental court, department, commission, board,

bureau, agency or instrumentality ("GOVERNMENTAL AUTHORITY") applicable to

Seller or any of its properties, assets or rights or conflict with or result in

any violation of Seller's Articles of Organization or by-laws. No permit,

authorization, consent or approval of or by, or any notification of or filing

with, any Governmental Authority or other person or entity is required in

connection with the execution, delivery and performance by Seller of this

Agreement or the Related Agreements or the consummation by Seller of the

transactions contemplated hereby or thereby, except for the consents listed in

Section 3.1(d) of the Disclosure Schedule.

(e) FINANCIAL INFORMATION.

(i) Seller has previously delivered to Buyer the following

financial statements (collectively, the "SELLER FINANCIAL STATEMENTS"):

(1) unaudited balance sheets of Seller as of December

31, 2004 and March 31, 2005 and the related statements of

income, cash flow and shareholders' equity for the three-month

period then ended (the "SELLER INTERIM FINANCIAL STATEMENTS");

and

(2) the audited balance sheets of Seller as of December

31, 2002, and December 31, 2003 and the related audited

statements of income, cash flow and shareholders' equity for

the periods then ended (including complete footnotes thereto),

certified by Seller's independent public accountants, and

accompanied by a copy of such auditor's report.

(ii) The Seller Financial Statements are in accordance with

the books and records of Seller, fairly present, in all respects, the

financial condition of Seller as of the dates indicated and the results of

operations of Seller for the respective periods indicated, and have been

prepared consistent with the past practices of Seller or in accordance

with generally accepted accounting principals ("GAAP") except, in the case

of the Seller Interim Financial Statements for the absence of complete

footnote disclosure as required by GAAP and subject to changes resulting

from normal year-end audit adjustments, which for purposes of this Section

3.1(e) shall not exceed $20,000.

(f) ABSENCE OF UNDISCLOSED LIABILITIES. At March 31, 2005, with

respect to the balance sheet dated that date set forth in the Seller Financial

Statements, Seller had no Liability required to be set forth therein in order

for such balance sheets to accurately present the financial condition of Seller

which was not provided for or disclosed thereon. There were no material loss

contingencies (as such term is used in Statement of Financial Accounting

Standard No. 5, issued by the Financial Accounting Standards Board in March

1975, as amended ("FAS NO. 5") which were not adequately provided for on such

balance sheets, respectively, as required by FAS No. 5.

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(g) ABSENCE OF CHANGES. Since December 31, 2003 or such other date

as is specifically provided below, except as set forth in Section 3.1(g) of the

Disclosure Schedule, Seller has been operated in the Ordinary Course of

Business, and there has not been:

(i) since December 31, 2004, any event or other Action (or

inaction) that has occurred that could have or could reasonably be

expected to have a Material Adverse Effect;

(ii) any damage, destruction or loss to any of the Acquired

Assets, whether or not covered by insurance, having or which could have a

Seller Material Adverse Effect;

(iii) any Liability created, assumed, guaranteed or incurred,

or any transaction, contract or commitment entered into by Seller other

than in the Ordinary Course of Business and consistent with past practice

and not otherwise reflected in the Seller Interim Financial Statements;

(iv) any payment, discharge or satisfaction of any Encumbrance

on any of the Acquired Assets or Liability by Seller or any cancellation

by Seller of any debts or claims or any amendment, termination or waiver

of any rights of value to Seller other than in the Ordinary Course of

Business and consistent with past practice;

(v) any declaration, setting aside or payment of any dividend

or other distribution of any assets of any kind whatsoever with respect to

any shares of the capital stock of Seller or any direct or indirect

redemption, purchase or other acquisition of any such shares of the

capital stock of Seller;

(vi) any license, sale, transfer, pledge, mortgage or other

disposition of any tangible or intangible asset (including any IP Rights

of Seller) other than in the Ordinary Course of Business and consistent

with past practice;

(vii) any termination of, or written indication of an

intention to terminate or not renew, any contract, license, commitment or

other agreement between Seller and any other person;

(viii) Since December 31, 2004, any write-down or write-up of

the value of any asset of Seller, or any write-off of any accounts

receivable or notes receivable of Seller or any portion thereof in any

event in excess of $10,000 in the aggregate;

(ix) any increase in or modification of compensation payable

or to become payable to any Seller Employee to be offered employment by

Buyer (a "TRANSFERRED EMPLOYEE") other than in the Ordinary Course of

Business and consistent with past practice, or the entering into of any

employment contract with any officer or Transferred Employee;

(x) any increase in or modification or acceleration of any

benefits payable or to become payable under any bonus, pension, severance,

insurance or other benefit plan, payment or arrangement (including, but

not limited to, the granting of stock

EXECUTION COPY - APRIL 29, 2005 10

<PAGE>

options, restricted stock awards or stock appreciation rights) made to,

for or with any Transferred Employee of Seller;

(xi) since December 31, 2004, any change in the manner in

which Seller extends discounts or credit to customers or offers any

incentives to customers other than in the Ordinary Course of Business

consistent with past practice;

(xii) any termination of employment of any officer or

Transferred Employee of Seller or any expression of intention by any

officer or Transferred Employee of Seller to resign from such office or

employment with Seller;

(xiii) since December 31, 2004, any amendments or changes in

Seller's governing instruments, including Seller's Articles of

Organization or by-laws;

(xiv) any labor dispute or any union organizing campaign;

(xv) the commencement of any litigation or other Action by or

against Seller relating in any manner to Seller;

(xvi) except as set forth in the Seller Interim Financial

Statements, any entry by Seller into any agreement, understanding,

commitment or transaction involving any expense (other than payments of

salaries and normal recurring operating lease and equipment lease payments

and other operating expenses incurred in the Ordinary Course of Business

consistent with past practice) or capital expenditure (since December 31,

2004 as to such capital expenditure), in excess of $25,000 individually or

any series of related agreements, understandings, commitments or

transactions involving expenses or capital expenditures of Seller in

excess of $50,000 in the aggregate; or

(xvii) any agreement, understanding, authorization or

proposal, whether in writing or otherwise, for Seller to take any of the

actions specified in items (i) through (xvi) above.

(h) TAX MATTERS.

(i) Seller and each other corporation or entity (if any)

included in any consolidated or combined tax return in which Seller has

been included (A) have filed in a timely and proper manner, consistent

with applicable laws, all Federal, state and local consolidated or

combined tax returns in which Seller has been included and will file, in a

timely and proper manner, consistent with applicable laws, all Federal,

state and local tax returns and tax reports required to be filed by them

("TAX RETURNS")"with the appropriate governmental agencies in all

jurisdictions in which Tax Returns are required to be filed and have

timely paid all amounts shown thereon to be due; (B) have paid all Taxes

of Seller (or such other corporation or entity) required to have been paid

thereby (or such other corporation or entity) before the Effective Time;

and (C) currently are not the beneficiary of an extension of time within

which to file any Tax Return. "TAXES" mean, with respect to any entity,

(A) all income taxes (including any tax on or based upon net income, gross

income, income as specially defined, earnings, profits or selected items

of income, earnings or profits) and all gross receipts, sales, use, ad

valorem,

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transfer, franchise, license, withholding, payroll, employment, excise,

severance, stamp, occupation, premium, property or windfall profits taxes,

alternative or add-on minimum taxes, customs duties and other taxes, fees,

assessments or charges of any kind whatsoever, together with all interest

and penalties, additions to tax and other additional amounts imposed by

any taxing authority (domestic or foreign) on such entity and (B) any

liability for the payment of any amount of the type described in the

immediately preceding clause (A) as a result of being a "transferee"

(within the meaning of Section 6901 of the Code or any other applicable

law) of another entity or a member of an affiliated or combined group.

(ii) All such Tax Returns were correct and complete at the

time of filing. . All Taxes of Seller attributable to all taxable periods

ending before the Effective Time, to the extent not required to have been

previously paid, have been adequately provided for on the Seller Interim

Financial Statements and on the books and records of Seller for the period

following the date of the Seller Interim Financial Statements to, but not

including, the Effective Time. Seller has not been notified by the

Internal Revenue Service or any state, local or foreign taxing authority

that any issues have been raised (and are currently pending) in connection

with any Tax Return, and no waivers of statutes of limitations have been

given with respect to Seller that are still in effect.

(iii) Except as contested by Seller in good faith and

disclosed in Section 3.1(h) of the Disclosure Schedule, any deficiencies

asserted or assessments (including interest and penalties) made as a

result of any examination by the INTERNAL REVENUE SERVICE" ("IRS") or by

any other taxing authorities of any Tax Return have been fully paid or are

adequately provided for on the Seller Interim Financial Statements, and on

the books and records of Seller for the period following the date of the

Seller Interim Financial Statements to, but not including, the Effective

Time, and Seller has not received notification that any proposed

additional Taxes have been asserted. Seller (i) has not made an election

to be treated as a "consenting corporation" under Section 341(f) of the

Internal Revenue Code of 1986, as amended, and all rules and regulations

promulgated thereunder (the "CODE") or a Subchapter "S" corporation under

Section 1362 of the Code, (ii) is not a "personal holding company" within

the meaning of Section 542 of the Code and (iii) has not been a United

States real property holding corporation within the meaning of Section

897(c) of the Code during the applicable period specified in Section

897(c)(1)(A)(ii) of the Code. Seller has not agreed to, nor is it required

to, make any adjustment under Section 481(a) of the Code by reason of a

change in accounting method or otherwise. Seller will not incur a Tax

Liability resulting from Seller ceasing to be a member of a consolidated

or combined group that had previously filed consolidated, combined or

unitary Tax returns.

(i) TITLE TO ASSETS, PROPERTIES AND RIGHTS AND RELATED MATTERS.

Seller has good and valid title to all of the Acquired Assets free and clear of

all Encumbrances of any kind or character. The Acquired Assets are in good

operating condition and repair (ordinary wear and tear excepted). The Acquired

Assets include all assets, properties and interests in properties (real,

personal and mixed, tangible and intangible) and all rights, leases, licenses

and other agreements necessary or desirable to enable Buyer to carry on the

Business in the manner as

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presently conducted by Seller. None of the assets, properties or rights being

retained by Seller is used in, or necessary or desirable for, the operation of

the Business as currently conducted.

(j) REAL PROPERTY - OWNED OR LEASED. Seller does not currently own,

nor has it or any of its predecessors ever owned, any real property. Section

3.1(j) of the Disclosure Schedule contains a list and brief description of (i)

all real property leased by Seller together with all buildings and other

structures and improvements located on such real property used in any way in

connection with the operation of the Business (the "LEASED REAL PROPERTY") and

(ii) with respect to each lease covering the Leased Real Property (collectively,

the "LEASES"), (A) the name of the lessor, (B) any requirement of consent of the

lessor to assignment (including assignment by way of merger or change of

control), (C) the termination date of the Lease, (D) notice requirements with

respect to termination, (E) the annual rental payment thereunder, and (F) any

renewal or purchase terms thereof. Seller is the owner and holder of all the

leasehold estates purported to be granted by each Lease, and all Leases are in

full force and effect and constitute valid and binding obligations of Seller.

Seller has made available to Buyer true and complete copies of all Leases. All

improvements included in the Leased Real Property are in good operating

condition and repair (ordinary wear and tear excepted) and there does not exist

any condition that interferes with the economic value or use of such property

and improvements.

(k) INTELLECTUAL PROPERTY.

(i) Set forth in Section 3.1(k)(i) of the Disclosure Schedule

is a true and complete list of all of Seller's IP Rights. Seller has good

and valid title to, and owns free and clear of all Encumbrances, has the

exclusive right to use, sell, transfer, license (or sublicense), transmit,

broadcast, deliver (electronically or otherwise) and dispose of, and has

the right to bring actions for the infringement of, all IP Rights. For the

avoidance of doubt, the IP Rights are not subject to any rights or claim

of any third party arising out of services provided by Seller in the

conduct of the Business or out of any co-development or other joint

development agreement between Seller and a third party. The IP Rights

include all Intellectual Property Rights necessary or desirable for the

conduct of the Business as proposed by Seller to be conducted after the

Closing Date;

(ii) The execution, delivery and performance of this Agreement

and the Related Agreements and the consummation of the other transactions

contemplated hereby or thereby, will not breach, violate or conflict with

any instrument or agreement governing any IP Rights, will not cause the

forfeiture or termination or give rise to a right of forfeiture or

termination of any IP Right or impair the right of Seller or Buyer to use,

sell, license (or sublicense), transmit, broadcast, deliver

(electronically or otherwise) or dispose of, or to bring any action for

the infringement of, any IP Right or portion thereof;

(iii) There are no royalties, honoraria, fees or other

payments payable by Seller to any person by reason of the ownership, use,

license (or sublicense), transmission, broadcast, delivery (electronically

or otherwise), sale, or disposition of IP Rights;

(iv) Except as set forth in Section 3.1.(k)(iv) of the

Disclosure Schedule, neither the manufacture, marketing, license (or

sublicense), sale, transmission,

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delivery (electronically or otherwise), or use of any product or service

currently or proposed to be licensed, sold, marketed, transmitted,

broadcast, delivered (electronically or otherwise) or used by Seller or

currently under development by Seller violates any license (or sublicense)

or agreement of Seller with any third party or infringes any common law or

statutory rights of any other party, including, without limitation, rights

relating to defamation, contractual rights, IP Rights and rights of

privacy or publicity; nor, to the knowledge of Seller, is any third party

infringing upon, or violating any license (or sublicense), transmission,

broadcast, delivery, (electronically or otherwise) or agreement with

Seller relating to, any IP Right; and, except as set forth in Section

3.1(k)(iv) of the Disclosure Schedule, there is no pending or threatened

claim or litigation contesting the validity, ownership or right to use,

manufacture, sell, license (or sublicense), transmit, broadcast, deliver

(electronically or otherwise) or dispose of any IP Right, nor is there any

basis for any such claim. Except as set forth in Section 3.1(k)(iv) of the

Disclosure Schedule, Seller has not received any notice asserting that any

IP Right or the proposed use, manufacture, sale, license (or sublicense),

transmission, broadcast, delivery (electronically or otherwise) or

disposition thereof conflicts or will conflict with the rights of any

other party, nor is there any basis for any such assertion;

(v) Except as set forth in Section 3.1(k)(v) of the Disclosure

Schedule, all works that were created, prepared or delivered by

consultants, independent contractors or other third parties for, in

partnership with, or on behalf of Seller (including any materials and

elements created, prepared or delive

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