EXHIBIT 10.1 ASSET PURCHASE AGREEMENT AMONG VISUALE, INC. SOFTWORKS AUSTRALIA PTY LTD, CERTAIN STOCKHOLDERS OF VISUALE, INC., AND ONYX SOFTWARE CORPORATION DATED APRIL 6, 2004

EXHIBIT 10.1

ASSET PURCHASE AGREEMENT

AMONG

VISUALE, INC.

SOFTWORKS AUSTRALIA PTY LTD,

CERTAIN STOCKHOLDERS OF VISUALE, INC.,

AND

ONYX SOFTWARE CORPORATION

DATED APRIL 6, 2004

* Certain confidential information contained in this document, marked by brackets, has been omitted and filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

-i-

-i-

-ii-

-iii-

Exhibits

-iv-

Asset Purchase Agreement

     This Asset Purchase Agreement (this “ Agreement ”) is made as of the 6th day of April, 2004, by and among Visuale, Inc., a Delaware corporation (“ Seller ”), the stockholders of Seller listed on the signature pages hereto (the “ Stockholders ”), Softworks Australia Pty Ltd., a Queensland proprietary limited company (“ Softworks ”), and Onyx Software Corporation, a Washington corporation (“ Buyer ”).

RECITALS

     A. Seller desires to sell and Buyer desires to purchase certain software and related assets at the price and on the terms and conditions set forth herein.

     B. Buyer has entered into employment agreements (the “Employment Agreements”) with eight employees of Softworks who were involved in the development of certain of the assets. Softworks desires to sell and Buyer desires to purchase certain tangible assets and transferable third party licenses useful in the work performance of such employees.

AGREEMENT

     NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the parties hereby agree as follows:

     As used in this Agreement, the following capitalized terms shall have the meanings set forth below:

     1.1 “ Affiliate ”: of any person (the “ Subject ”) means any other person which, directly or indirectly, controls or is controlled by or is under common control with the Subject.

     1.2 “ Agreement ”: This Agreement and all Schedules and Exhibits hereto.

     1.3 “ Annual Period ”: Each of the periods covered by (i) the First Quarter through the fourth Quarter; (ii) the fifth through eighth Quarters; (iii) the ninth through twelfth Quarters (the “ Third Annual Period ”); and (iv) the first day of the thirteenth Quarter through the end of the Contingent Payment Term (the “ Fourth Annual Period ”).

     1.4 “ Assets ”: The Visuale Assets and the Softworks Assets.

     1.5 “ Books and Records ”: (a) All copies, print-outs, disks, hard drives, and other tangible manifestations in any form or format, electronic or otherwise, complete or partial, of the Product or any of it; and (b) all of Seller’s books and records (including all discs, tapes and other forms of media or data storage) relating to the Product as of the close of business on the date hereof, including, without limitation, all of Seller’s current and in-process marketing information and procedures, and advertising and promotional materials. The Books and Records include without limitation the records and articles described in Schedule 1.5 to the Disclosure Memorandum.

-5-

     1.6 “ Bundled License(s)”: Software licenses or other similar rights granted to any third party covering copies of one or more product(s) from at least two of the following three categories: (a) Stand-Alone Products; (b) Derived Products; and (c) other software products (the code for which is separately compiled) that are neither Stand-Alone Products nor Derived Products.

     1.7 “ Claim ”: Any claim, demand, cause of action, suit, proceeding, arbitration, hearing or investigation.

     1.8 “ Closing ”: The consummation of the purchase and sale of the Visuale Assets and the Softworks Assets under this Agreement on the date hereof.

     1.9 “ Code ”: The Internal Revenue Code of 1986, as amended, and all regulations promulgated thereunder, as in effect from time to time.

     1.10 “ Contract ”: Any contract, agreement, lease, license, grant of immunity from suit in regard to intellectual property rights, commitment, arrangement, purchase or sale order, or undertaking, whether written or oral.

     1.11 “ Copyright ”: Any original works of authorship or copyright, whether registered or unregistered, arising under the law of any nation, state or jurisdiction, together with any and all applications, registrations, certificates, renewals, extensions, goodwill, benefits, privileges, causes of action and remedies (including, without limitation, the right to sue and take action for any past, current or future infringement and the right to settle and retain proceeds from any such action) for any of the foregoing.

     1.12 “ Derived Products ”: A software product (other than a Stand-Alone Product) that incorporates, or is based on, or derived from the Product or any part thereof. Derived Products may be based on Buyer-branded end-user software products generally available both prior to and following Closing.

     1.13 “ Derived-Product License(s) ”: Software licenses or other similar rights granted to any third party covering copies of one or more Derived Products, whether or not as part of a Bundled License.

     1.14 “ Disclosure Memorandum ”: That certain Disclosure Memorandum dated as of the date hereof and delivered by Seller, the Stockholders, and Softworks to Buyer on the date hereof in connection with this Agreement.

     1.15 “ Employees ”: The current and former employees of Seller, Softworks, and/or Pennystream or their Affiliates.

     1.16 “ Encumbrance ”: Any security interest, mortgage, pledge, lien, charge, option, right of first refusal, right of possession, easement, license, adverse claim or restriction of any kind, including, but not limited to, any restriction on the use, transfer, voting, receipt of income or other exercise of any attributes of ownership.

     1.17 “ Exchange Act ”: The U.S. Securities Exchange Act of 1934, as amended.

-6-

     1.18 “ Excluded Assets ”: Cash or cash equivalents, accounts receivable, and contracts, whether or not used in or relating to the Product, and any other assets of Seller not used in or for, or otherwise relating to, the Product.

     1.19 “ Excluded Liabilities ”: Any Liabilities of Seller, including the Seller Liabilities, whether related to the Product or otherwise, and whether or not arising under or pursuant to any of the Contracts described in Schedule 4.6 to the Disclosure Memorandum.

     1.20 “ Fair Market Value ”: The average of the closing sale prices of the Onyx Common Stock as publicly reported on the Nasdaq National Market System for the fifteen (15) trading day period immediately preceding the date of issuance.

     1.21 “ Governmental Body ”: Any federal, state or other court or governmental body, any subdivision, agency, commission or authority thereof, or any quasi-governmental or private body exercising any regulatory or taxing authority thereunder, domestic or foreign.

     1.22 “ Indemnification Shares ”: Shares of Onyx Common Stock issued to Seller as part of the Initial Stock Portion or the Subsequent Stock Portion and that continue to be held by the Seller or its Affiliates.

     1.23 “ Intellectual Property ”: All works, work-in-progress, inventions, ideas, manufacturing processes, product names and symbols, data, and information (whether or not protectable by patent, copyright, trademark, or trade secret rights) employed as of the Closing by Seller or its Affiliates primarily or exclusively in connection with or in support of the Product or its use or distribution, together with all intellectual property rights and other legally-recognizable protections applicable in whole or in part thereto, including without limitation trade names, trademarks (including common-law trademarks) and service marks and all goodwill associated therewith, domain names, copyrights, and their registrations and applications, all domestic and foreign patents and patent applications, all technology, know-how, show-how, trade secrets, and rights to protect and require confidentiality. The Intellectual Property includes, without limitation, the Copyrights, Trademarks, domain names, Patents, and patent applications described in Schedule 1.23 to the Disclosure Memorandum.

     1.24 “ Judgment ”: Any judgment, order, award, writ, injunction or decree of any Governmental Body or arbitrator.

     1.25 “ Liabilities ” shall mean any and all debts, liabilities and obligations of any nature whatsoever, whether accrued or fixed, absolute or contingent, mature or unmatured or determined or determinable, including those arising under any law, those arising under any contract, agreement, commitment, instrument, permit, license, franchise or undertaking and those arising as a result of any act or omission.

     1.26 “ Loss ”: Any loss, damage, Judgment, debt, liability, obligation, fine, penalty, cost or expense (including, but not limited to, any reasonable legal and accounting fee or expense) incurred or paid, net of any related tax benefit or insurance or other third-party recovery.

-7-

     1.27 “ Net Sales ”: Cash or cash equivalents received by Buyer or its Affiliates for the grant of any and all Stand-Alone-Product Licenses or a Derived-Product Licenses, where such grant is made during the Contingent Payment Term. Amounts to be included in the calculation of Net Sales shall be those representing the net amount received (i.e., after taking into account applicable discounting in the licensing transaction, such discounting which may be done at Buyer’s sole discretion), less any credits, rebates, charge-backs, and/or adjustments by reason of rejections, returns, or non-payment of applicable license fees due from third parties to Buyer, such amounts to be limited to those actually allowed in amounts and for purposes customary in the trade or in the Buyer’s business generally; provided, however, that:

          (i) no Stand-Alone Products resold by Seller under the Reseller Agreement will be counted toward the calculation of Net Sales; and

          (ii) if the license transaction is a Bundled License and any of the products licensed thereunder is discounted (i.e., from Buyer’s suggested list prices when sold separately) more deeply on a percentage basis than any of the other products or services licensed thereunder, then, for purposes of calculating the net amounts received under such Bundled License, the aggregate discounts under such Bundled License (in dollar amounts, not percentages) shall be added together and the total shall be stated as a percentage (the “ Overall Discount Percentage ”) of the aggregate of Buyer’s suggested list prices for all products covered by such Bundled License. For example, if the total of all such suggested list prices were $100,000, and the total of all such discounts were $30,000, then the Overall Discount Percentage for that Bundled License would be 30%. In that situation, the net amount (i.e., after discounting) received for purposes of calculating Net Sales hereunder shall equal, for the respective Stand-Alone-Product License(s) and Derived-Product License(s) covered by such Bundled License, the suggested list prices thereof less the applicable 30% Overall Discount Percentage, regardless of any allocation of proceeds or prices stated by the parties in or in relation to such Bundled License.

     1.28 “ Non-Transferring Employees ”: The Employees other than the Transferring Employees.

     1.29 “ Participating Developer ”: Any person or entity that has, at any time and in any material way, participated in or contributed to the conception, design, reduction to practice, authorship or development of any of the Visuale Assets.

     1.30 “ Patent ”: Any domestic or foreign letters patent and any patent application arising under the laws of any nation, state or jurisdiction, together with any and all applications, registrations, certificates, renewals, extensions, goodwill, benefits, privileges, causes of action and remedies (including, without limitation, the right to sue and take action for any past, current or future infringement, misappropriation or violation and the right to settle and retain proceeds from any such action) for any of the foregoing.

     1.31 “ Permit ”: Any permit, license, approval, certification, endorsement or qualification of any Governmental Body or any other person or entity (including, but not limited to, any customer).

-8-

     1.32 “ Person ”: Any person, corporation, partnership, joint venture, association, organization, other entity or governmental or regulatory authority.

     1.33 “ Product ”: The program and product referred to generally by Seller as its “Visual Enterprise” product, together with all completed and in-progress end-user and internal manuals and documentation and all completed and in-progress software and codes in any and every format in which they currently exist, including without limitation source codes, programmers’ notes, object code, graphics, logic, techniques, software tools, formats, designs, concepts, methods, procedures, prototypes, formulae, drawings, designs, algorithms, structures, operations, user interfaces, “look and feel” and ideas associated with or used for or in connection with such product. The Product includes, without limitation, the elements listed in Schedule 1.33 to the Disclosure Memorandum, including the codes embodied in the Touchstone Copies.

     1.34 “ Quarter ”: (a) The period from the Closing until June 30, 2004 (which shall be the “ First Quarter ”); (b) each period of three full, contiguous calendar months during the Contingent Payment Term following the First Quarter; and (c) the period from the first day of the calendar month immediately following the last Quarter described in clause (b) until the end of the Contingent Payment Term.

     1.35 “ Restricted Activities ”: The research, development, manufacture, marketing, promotion, sale or distribution of either (i) any customer relationship management systems or (ii) business process automation systems, in each case on a worldwide basis, except for activities contemplated under the Reseller Agreement (as defined below) and other activities undertaken for the benefit of Buyer and with its prior written consent.

     1.36 “ Contingent Payment Term ”: the period starting on the Closing and ending on the fourth (4th) anniversary of the Closing.

     1.37 “ Securities Act ”: The U.S. Securities Act of 1933, as amended.

     1.38 “ Softworks Assets ”: those tangible items and transferable third party licenses listed in Exhibit 1.38 .

     1.39 “ Stand-Alone Products ”: Either

(a) the Product or

(b) any functional module thereof (e.g., the rules engine contained within the Product) if such module is offered by Buyer as a separate product (i.e., the code for which is to be separately compiled, whether or not offered as part of a Bundled License),

in either case in substantially similar form as it existed as of the Closing and as the same may be updated and corrected without the addition of substantial and material functional upgrades or enhancements, through a process of standard software maintenance.

-9-

     1.40 “ Stand-Alone-Product License(s) ”: Software licenses or other similar rights granted to any third party covering copies of one or more Stand-Alone Products, whether or not as part of a Bundled License.

     1.41 “ Tax ” or “ Taxes ”: All taxes, charges, fees, levies or other assessments, including, without limitation, income, excise, gross receipts, personal property, real property, sales, use, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment, severance, stamp, occupation, windfall profits, social security and unemployment or other taxes of any kind whatsoever imposed by the United States or any agency or instrumentality thereof, any state, county, local or foreign government, or any agency or instrumentality thereof, and any interest or fines, and any and all penalties or additions relating to such taxes, charges, fees, levies or other assessments.

     1.42 “ Tax Return ”: Any return, declaration, report, claim or refund, information return, statement or other similar document relating to Taxes, including any schedule or attachment thereto and any amendment thereof.

     1.43 “ Touchstone Copies ”: As defined in Section 7.13.

     1.44 “ Trademark ”: Any domain name and any common law or registered trademark, trade name or service mark, arising under the laws of any nation, state or jurisdiction, together with any and all applications, registrations, certificates, renewals, extensions, goodwill, benefits, privileges, causes of action and remedies (including, without limitation, the right to sue and take action for any past, current or future infringement, misappropriation or violation and the right to settle and retain proceeds from any such action) for any of the foregoing.

     1.45 “ Transaction Documents ”: Any and all of the agreements and documents referenced in Section 6.

     1.46 “ Transfer ” (or such conjugation thereof as the context may require): Sell, grant, transfer, convey, assign and deliver (or such conjugation thereof as the context may require).

     1.47 “ Transferring Employees ”: Such of the Employees who meet both of the following criteria: (a) they are listed in Exhibit 1.47 and (b) they have accepted the Buyer’s offer of employment, effective at Closing.

     1.48 “ Visuale Assets ”: The Product and all of the assets and rights of every type and description used in or relating to or covering the Product or otherwise embodying the Product in whole or in part, whether tangible or intangible, real, personal or mixed, wherever located, including, but not limited to, the Intellectual Property and the Books and Records, other than the Excluded Assets.

     2.1 Visuale Assets and Softworks Assets

     Subject to the terms and conditions of this Agreement, at the Closing, Seller shall Transfer, or cause to be Transferred, in the manner and at such times as are provided in Sections

-10-

6.1(q) and 7.13 hereof, to Buyer, free and clear of all Encumbrances, and Buyer shall purchase and acquire, all right, title and interest in and to the Visuale Assets. Subject to the terms and conditions of this Agreement, at the Closing, Softworks shall Transfer, or cause to be Transferred, to Buyer, free and clear of all Encumbrances, and Buyer shall purchase and acquire, all right, title and interest in and to the Softworks Assets.

     2.2 Excluded Liabilities

     Buyer shall not assume any Excluded Liabilities. All obligations or liabilities of Seller and Softworks shall remain obligations and liabilities of Seller and Softworks, respectively, and each of Seller and Softworks shall do all things reasonably necessary at or after the Closing to promptly discharge all such liabilities when they become due.

     2.3 Instruments of Sale and Transfer

     On or prior to the date hereof, Seller shall deliver to Buyer such instruments of sale and assignment as shall, in the reasonable judgment of Buyer and Seller, be effective to vest in Buyer on the date hereof all of Seller’s right, title and interest in and to the Visuale Assets, including, without limitation the Transaction Documents. Seller shall take all reasonable additional steps as may be necessary to put Buyer in possession and operating control of the Visuale Assets at the Closing. On or prior to the date hereof, Softworks shall deliver to Buyer such instruments of sale and assignment as shall, in the reasonable judgment of Buyer and Softworks, be effective to vest in Buyer on the date hereof all of Softworks’ right, title and interest in and to the Softworks Assets. Softworks shall take all reasonable additional steps as may be necessary to put Buyer in possession and operating control of the Softworks Assets at the Closing.

     3.1 Purchase Price

     In addition to the Contingent Payments (as defined below), Buyer will pay Seller (and Softworks with respect to the Softworks Assets, by payment through Seller, acting solely as agent for Softworks, of a portion of the Cash Component (as defined below) to be determined by Seller and Softworks) an aggregate purchase price (such amount, together with the Contingent Payments, the “ Purchase Price ” for the Visuale Assets and the Softworks Assets) of Three Million Dollars ($3,000,000), consisting of the following:

          3.1.1 Initial Payment

     The initial payment of the Purchase Price (the “ Initial Payment ”) shall be Two Million Dollars ($2,000,000), (a) $400,000 (the “ Cash Component ”) of which shall be paid to Seller at the Closing in cash by check or wire transfer of immediately available funds to such bank account of Seller as it may designate in writing prior to the Closing and (b) $1,600,000 of which shall be paid to Seller at the Closing in shares of unregistered Buyer common stock, par value $0.01 per share (the “ Onyx Common Stock ”), determined by dividing $1,600,000 by the Fair Market Value (the “ Initial Stock Portion ”).

-11-

          3.1.2 Subsequent Payment

     Subject to Section 10, Buyer shall pay to Seller an additional One Million Dollars ($1,000,000) (the “ Subsequent Payment ”), on the first anniversary of the Closing in, at Buyer’s election: (a) cash by check or wire transfer of immediately available funds to such bank account of Seller as it may designate in writing prior to the first anniversary of the Closing or (b) shares of Onyx Common Stock, determined by dividing $1,000,000 by the Fair Market Value of the Onyx Common Stock (the “ Subsequent Stock Portion ”), or a combination thereof.

          3.1.3 No Fractional Shares; Limitation on Issuance

     No fractional shares of Onyx Common Stock shall be issued. The aggregate number of shares Seller is entitled to receive pursuant to Section 3.1.1 or 3.1.2 shall be rounded to the nearest whole number, with .5 being rounded up. In no event shall Buyer issue shares of Onyx Common Stock pursuant to this Agreement which, in the aggregate, exceed 19.9% of Buyer’s outstanding shares as of the date hereof. In the event that Buyer is restricted in its ability to issue shares of Onyx Common Stock by reason of the preceding sentence, Buyer shall pay the Purchase Price by a combination of Onyx Common Stock and cash.

     3.2 Contingent Payments

          3.2.1 Contingent Payments

     In addition to the Closing Payment and the Subsequent Payment but subject to Section 10, Buyer shall, as an additional component of the Purchase Price, pay Seller, for a period of four (4) years commencing on the Closing, additional amounts (the “ Contingent Payments ”) equal to:

          3.2.2 Payment of Contingent Payments

     The Contingent Payments shall be calculated and reported to Seller within sixty (60) days following the end of each Quarter in respect of Net Sales received in such Quarter. Accrued Contingent Payments shall be due and paid in cash annually within sixty (60) days following each Annual Period. Each such quarterly report and annual payment shall be accompanied by a statement of Net Sales for such Quarter or Annual Period, as applicable, itemized by Stand-Alone-Product Licenses and Derived-Product Licenses, a calculation of Contingent Payments payable hereunder and a calculation of the amount of Contingent Payments accrued as liabilities in Buyer’s financial statements for such Quarter or Annual Period, as applicable.

*Confidential Treatment Requested

-12-

          3.2.3 Minimum Contingent Payment Amounts

     If the aggregate Contingent Payments payable under Section 3.2.1 above with respect to the Third Annual Period do not equal or exceed Five Hundred Thousand Dollars ($500,000), then the Contingent Payment due sixty (60) days following the Third Annual Period shall be increased by an amount equal to the difference between such aggregate Contingent Payments and $500,000. Similarly, if the aggregate Contingent Payments payable under Section 3.2.1 above with respect to the Fourth Annual Period do not equal or exceed Five Hundred Thousand Dollars ($500,000), then the Contingent Payment due sixty (60) days following the end of the Fourth Annual Period shall be increased by an amount equal to the difference between such aggregate Contingent Payments and $500,000.

          3.2.4 Verification of Contingent Payment Calculations

     Buyer shall keep, and shall cause its Affiliates and resellers to keep, complete, true and accurate records for the purpose of showing the derivation of all Contingent Payments payable to Seller under this Agreement. Seller shall have the right to cause a nationally recognized independent certified accountant selected by Seller to inspect, copy, and audit such records at any time during reasonable business hours upon ten (10) business days’ prior notice to Buyer. Information gathered during any such inspection or audit shall be held in confidence by such accountant, except for the conclusions reached by such accountant. Any such audit shall be at the expense of Seller, unless the inspection or audit properly reveals that, with respect to the period under audit, less than 95% of the Contingent Payments due to Seller hereunder were reported by Buyer to be due, in which event Buyer shall promptly remedy such underpayment and pay or reimburse Seller for the reasonable expenses of such inspection or audit, in addition to Seller’s other remedies for such underpayment.

          3.2.5 Applicable Currency

     All Contingent Payments shall be paid in United States Dollars to Seller. The rate of exchange to be used in converting foreign funds to United States Dollars shall be the actual rate at which Buyer, on the relevant date, purchases United States Dollars with such foreign funds.

     3.3 Allocation of Purchase Price

     The Purchase Price and other consideration paid by Buyer to the Seller for the Visuale Assets and to Softworks for the Softworks Assets together with the assumed liabilities shall be allocated among the Visuale Assets and the Softworks Assets in accordance with Section 1060 of the Code as determined by Buyer, subject to approval of such allocation by Seller and Softworks (not to be unreasonably withheld), and the parties agree that they will not take a position on any Tax Return before any governmental agency charged with the collection of any Tax or in any judicial proceeding that is in any way inconsistent with such allocation. If any amount set forth on IRS Form 8594 (as prepared by the Buyer and approved by the Seller and Softworks (not to be unreasonably withheld)) is increased or decreased after the date of the Closing, then the Buyer shall prepare an amended IRS Form 8594 as soon as reasonably practical after such increase or decrease, which such amended IRS Form 8594 shall be subject to the approval of the Seller and Softworks (not to be unreasonably withheld), and after obtaining such approval from Seller and

-13-

Softworks, Buyer shall provide a copy of such IRS Form 8594 to Seller and Softworks. Buyer, Seller and Softworks each agree to file IRS Form 8594, and any corresponding state Tax forms, on a timely basis.

     3.4 Seller to pay Softworks

     Softworks acknowledges and agrees that it will look solely to Seller as agent for Softworks for payment with respect to the sale of the Softworks Assets, and that it will have no right or remedy against Buyer therefor, provided Buyer has paid to Seller all amounts due hereunder. The parties hereby acknowledge and agree that (i) Buyer is purchasing the Softworks Assets directly from Softworks and Softworks is selling the Softworks Assets directly to Buyer, (ii) Seller is acting as the agent for Softworks for the purpose of receiving the portion of the Purchase Price allocable to the Softworks Assets on behalf of Softworks, and of ultimately transferring such proceeds to Softworks pursuant to such agency agreement, and (iii) no such party shall take any position, for Tax or accounting purposes or otherwise, inconsistent with the foregoing.

     To induce Buyer to enter into and perform this Agreement, Seller, the Stockholders and Softworks represent and warrant to Buyer, except as specifically set forth in the applicable section of the Disclosure Memorandum (which representations and warranties shall survive the Closing as provided in Section 10.1) as follows in this Section 4:

     4.1 Organization; Good Standing; Power

     Seller is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware. Softworks is a proprietary limited company duly organized, validly existing and in good standing under the laws of the state of Queensland, Australia.

     4.2 Authority; Authorization; Enforceability

     Each of Seller, each Stockholder, and Softworks has full power and authority to execute and deliver this Agreement and the Transaction Documents to which it is a party and perform its obligations hereunder and thereunder. The execution and delivery by Seller of this Agreement and each Transaction Document to which it is a party, the performance by Seller of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action. This Agreement constitutes a valid and binding obligation of Seller, each Stockholder, and Softworks, enforceable against Seller, such Stockholder and Softworks in accordance with its terms, and each Transaction Document to which each of Seller, such Stockholder, and Softworks is a party, when executed and delivered by Seller, such Stockholder, and Softworks will constitute a valid and binding obligation of Seller, such Stockholder, and Softworks enforceable against Seller, such Stockholder, and Softworks in accordance with its respective terms.

     4.3 No Conflicts

-14-

     The execution, delivery and performance of this Agreement and the Transaction Documents by Seller, each Stockholder, and Softworks, and the consummation of the transactions contemplated hereby or thereby will not (a) violate, conflict with, or result in any breach of, any provision of Seller’s or Softworks’ certificate of incorporation or bylaws; (b) violate, conflict with, result in any breach of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under any Contract or Judgment to which Seller or Softworks is a party or by which it is bound or which relates to the Assets or any of them; (c) result in the creation of any Encumbrance on any of the Assets; or (d) violate any applicable law, statute, rule, ordinance or regulation of any Governmental Body.

     4.4 Consents and Approvals

     No consent, approval or authorization of, or declaration, filing or registration with, any Person is required for the execution, delivery and performance by Seller, the Stockholders, and Softworks of this Agreement and the Transaction Documents to which they are a party and for the consummation by Seller, the Stockholders and Softworks of the transactions contemplated hereby and thereby.

     4.5 Title to Assets; Assets Complete

     Seller has good and marketable title to, and owns all right, title and interest in and to, the Visuale Assets free and clear of any Encumbrance, and there have been no claims made or, to Seller’s, any Stockholder’s or Softworks’ knowledge, threatened challenging such ownership. Softworks has good and marketable title to, and owns all right, title and interest in and to, the Softworks Assets free and clear of any Encumbrance, and there have been no claims made or, to Seller’s, any Stockholder’s or Softworks’ knowledge, threatened challenging such ownership the Softworks Assets. The Visuale Assets to be transferred to Buyer pursuant to this Agreement and the Transaction Documents include all the assets and rights used or held for use by Seller in or relating to the Product. The execution and delivery of the Transaction Documents by the parties and the payment by Buyer to Seller of the Purchase Price for the Assets set forth in Section 3.1 will result in Buyer’s immediate acquisition of good, valid and marketable title to the Assets, free and clear of any Encumbrance. For the avoidance of doubt and without limiting the generality of Seller’s, the Stockholders’, and Softworks’ other representations and warranties, Seller, the Stockholders, and Softworks represent and warrant that:

-15-

     4.6 Contracts

      Schedule 4.6 to the Disclosure Memorandum contains a complete and accurate list of all Contracts, oral or written, to which Seller, any Stockholder, or Softworks is a party or under which it is a beneficiary and that either contain obligations of the Seller, any Stockholder, or Softworks related to the Assets or provide for the Seller’s or Softworks’ obtaining any rights in or to any of the Assets. True and correct copies of all such Contracts have been delivered to Buyer. Seller has no reason to believe that any obligations that remain under any such Contract cannot be fulfilled by Seller such Stockholder, or Softworks or its designee. No Contract of Seller, any Stockholder, or Softworks will adversely affect the right of Buyer after the Closing to conduct the research, development, manufacture, use, marketing, promotion, sale and distribution of the Product.

     4.7 Claims and Legal Proceedings

     There are no Claims pending or, to Seller’s, Softworks’ or any Stockholder’s knowledge, threatened against Seller or Softworks, before or by any Governmental Body or nongovernmental department, commission, board, bureau, agency or instrumentality or any other person. To Seller’s, Softworks’ or any Stockholder’s knowledge, there is no valid basis for any Claim against Seller or Softworks by or before any Governmental Body or nongovernmental department, commission, board, bureau, agency or instrumentality, or any other person. There are no outstanding or unsatisfied judgments, orders, decrees or stipulations to which Seller or Softworks is a party.

     4.8 Taxes

-16-

     All Tax Returns required to be filed by or on behalf of Seller have been duly and timely filed, and all such Tax Returns are true, complete and correct. All Taxes owed by or with respect to Seller (whether or not shown on any Tax Return), or for which Seller could be currently liable, have been paid, except for any Taxes due as a result of the transactions contemplated by this Agreement. No deficiencies for any Taxes have been asserted or assessed against Seller that remain unpaid. Seller has not been granted an extension of time which is still in effect for the filing of any Tax Return that has not yet been filed. There are no agreements, waivers or arrangements providing for the extension of time with respect to the assessment of any Tax owed by Seller. There is no dispute, audit, investigation, proceeding or claim concerning any liability or obligation with respect to Taxes of Seller. There are no Tax liens upon any of the Assets (other than with respect to Taxes not yet due and payable). Seller is not a party to any Tax allocation or sharing agreement. Seller, the Stockholders, and/or Softworks have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any Employee, independent contractor, creditor, stockholder, or other third persons, except for any Taxes due as a result of the transactions contemplated by this Agreement. Seller has properly charged, collected and paid all applicable sales, use and other similar Taxes. Seller has not been a member of an affiliated, combined, consolidated or unitary group, and Seller does not have any liability for the Taxes of any person under Treasury Regulations Section 1.1502-6 (or similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.

     4.9 Intellectual Property

          4.9.1 Original Work

     The Visuale Assets have been developed entirely as the original work, discoveries, and creations of Softworks, Seller, and their respective Participating Developers. All of Softworks’ contributions to the Visuale Assets were made as “works made for hire” for Seller or Visual Enterprise, LLC, Seller’s predecessor in interest, or by assignments of all Softworks’ right, title and interest in and to the Visuale Assets or any portion thereof, duly and without condition or right of termination or reversion. Pennystream and all Participating Developers have duly and without condition or right of termination or reversion transferred, sold and assigned all of its or their right, title and interest in and to the Visuale Assets to Seller. The Visuale Assets do not contain or incorporate any intellectual property owned by any Stockholder or Softworks, nor owned by any third party (whether or not licensed to Seller), and none of the same is or will be required for the development, use, sale or other exploitation of the Visuale Assets, except, for avoidance of doubt, third party operating systems (e.g. Microsoft.net), database software (e.g. Microsoft SQL Server and Oracle 9i), email servers (e.g. Microsoft Exchange Server), report writer applications (e.g. Crystal Decisions), activeX controls (e.g. Microsoft Common Controls and Infragistics TreeViewX ActiveX 8.0) and zLib libraries, all of which are required for use of the Visuale Assets and which Buyer must procure itself (to the extent not included in the Softworks Assets).

          4.9.2 Reserved.

          4.9.3 Source Code

-17-

     No person or entity claiming by, through or under Seller has a copy, or the right to acquire or discover a copy, of any of the source code of or with respect to any of the Visuale Assets. Except as set forth in Schedule 4.9.3 to the Disclosure Memorandum, none of Seller, the Stockholders or Softworks has delivered copies of such source code to any person or entity outside of Seller, whether pursuant to an escrow arrangement or otherwise.

          4.9.4 Licenses and Agreements

      Schedule 4.9.4 to the Disclosure Memorandum lists all copies of all licenses, sublicenses and other agreements to which Seller, the Stockholders or Softworks is a party or pursuant to which any other person or entity is authorized to use any of the Assets. Copies of such licenses, sublicenses and other agreements have been delivered by Seller to Buyer. None of Seller, the Stockholders and Softworks is, or as a result of the execution and delivery of this Agreement or the performance of Seller’s and Softworks’ obligations hereunder will be, in violation of, or lose any rights pursuant to, any such license, sublicense or agreement. None of Seller, the Stockholders or Softworks has entered into any agreement granting any person or entity the right, contingent or otherwise, to bring or to control any infringement action with respect to, or otherwise to enforce, any of Seller’s, any Stockholder’s or Softworks’ present or prior rights relating to any of the Assets.

          4.9.5 No Infringement

     There has not been and there is not now any unauthorized use, infringement or misappropriation by Seller, the Stockholders or Softworks of any intellectual property of any third party related to any of the Assets. None of the Visuale Assets, nor the use or application thereof for their intended uses and applications, infringes or misappropriates any rights or intellectual property of any person or entity. There are and have been no claims asserted or, to Seller’s, any Stockholder’s or Softworks’ knowledge, threatened that any of the Visuale Assets or the exercise, use, distribution or application thereof by Seller or its customers has or would infringe or constitute a misappropriation of any of the rights or properties of any third party, nor, to the knowledge of Seller, the Stockholders or Softworks, is there any reasonable foundation for any such claim. To the knowledge of Seller, the Stockholders and Softworks, there has not been and there is not now any unauthorized use, infringement or misappropriation of any of the Visuale Assets by any third party, including, without limitation, any Employee.

          4.9.6 Valid and Subsisting; Applications and Registrations

      Schedule 4.9.6 to the Disclosure Memorandum lists all Patents, applications for Patents, Copyright registrations and applications therefor, and Trademark registrations and applications therefor of Seller, any Stockholder or Softworks, to the extent any of the same are included in or applicable in whole or in part to the Visuale Assets. All Patents, registered Trademarks and registered Copyrights included in the Visuale Assets are valid and subsisting. There are and have been no claims asserted or, to the Seller’s, any Stockholder’s or Softworks’ knowledge, threatened that any of the Visuale Assets are invalid, nor are there or have there been any interferences, re-examinations or oppositions brought or threatened to be brought involving any of the Patents or Trademarks included in the Visuale Assets, nor, to the knowledge of Seller, any Stockholder or Softworks, is there any foundation for any such claim, interference, re-

-18-

examination or opposition. Seller has the exclusive right to file, prosecute and maintain all applications and registrations with respect to the Patents set forth in the Schedule 4.9.6.

          4.9.7 No Government Funding

     No government funding, facilities, or resources of a university, or other educational institution or research center, was used in the development of any of the Visuale Assets.

          4.9.8 No Open Source

     The Visuale Assets do not contain and have not at any time contained any “open source” code or materials nor have any of the Visuale Assets been derived from any “open source” code or materials. None of Seller, the Stockholders and Softworks has distributed or authorized the distribution of any Visuale Assets with or in conjunction with “open source” code or materials. As used herein, “open source” refers to software or other materials licensed under agreements that impose, or purport to impose, on the lice