EXHIBIT 10.10 ASSET PURCHASE AGREEMENT

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Exhibit 10.10

ASSET PURCHASE AGREEMENT

        THIS ASSET PURCHASE AGREEMENT (this " Agreement ") is entered into as of January 31, 2006, by and between FortuneCity.com Inc., a Delaware corporation (" Seller "), and Hostopia.com Inc., a Delaware corporation (" Purchaser ").

RECITALS

        WHEREAS, Seller among its businesses is engaged in the business of providing paid website hosting services (the " Business ") through the URL http://www.fortunecity.com ; and

        WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, certain of the assets and rights of Seller relating to the Business (other than the Excluded Assets, as hereinafter defined), and for Purchaser to assume certain specified liabilities, upon the terms and subject to the conditions set forth in this Agreement.

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

ARTICLE I
DEFINITIONS

        Capitalized terms used but not otherwise defined in this Agreement shall have the meanings defined in Annex A  hereto.

ARTICLE II
PURCHASE AND SALE

        SECTION 2.1. Purchase and Sale of Acquired Assets .

        (a)    Purchase and Sale of Acquired Assets .    Upon the terms and subject to the conditions of this Agreement, Seller agrees to sell, assign, transfer, convey and deliver to Purchaser free and clear of all Encumbrances whatsoever (except Permitted Encumbrances), and Purchaser agrees to purchase and accept from Seller, at the Closing on the Closing Date, all of the right, title and interest of Seller, in, to and under the following assets of Seller insofar as they relate to or are used in the Business, whether tangible or intangible (collectively, the " Acquired Assets "):

        (i)    each contract or agreement of Seller with End-Users relating to the Business the form of which is set forth on Schedule 2.1(a)(i) or is otherwise, in the reasonable discretion of the Purchaser, essential to the provision by Seller's of paid web hosting services, (the " Contracts ");

        (ii)   the Books and Records relating exclusively to the Business, including (A) all Existing End-User information (e.g., all customer lists, email addresses, addresses, phone numbers, credit card information, user ID's and passwords) as well as any database or other document or record containing Existing End-User information, and (B) all marketing intelligence or strategies relating to the Business as well as any document or record containing such information to the extent that such marketing intelligence or strategies relating to the Business exist;

        (iii)  all causes of action, lawsuits, judgments, deposits, refunds, rebates, choses in action, rights of recovery, rights of set-off, rights of recoupment, claims and demands of any nature available to or being pursued by Seller with respect to the Business or ownership, use, function or value of any of the Acquired Assets or Assumed Liabilities; and

        (iv)  all right, title and interest of Seller in and to the goodwill incident to the Business, including the exclusive right of the Purchaser to hold itself out as carrying on the Business in succession to the Seller.

        (b)    Excluded Assets .    Notwithstanding the foregoing, the purchase and sale contemplated hereby shall not include any assets of Seller not included in the Acquired Assets and shall not include any computer or telephone (collectively, the " Excluded Assets "):

        SECTION 2.2. Liabilities Assumed by Purchaser; Excluded Liabilities .

        (a)   Subject to Section 2.2(b), in connection with its purchase of the Acquired Assets, as of the Closing, Purchaser shall assume and agree to pay, perform and discharge as they come due only, those obligations that are incident to the performance under the Contracts (other than the Excluded Liabilities) on or after the Closing Date (collectively, the " Assumed Liabilities "); provided, however, that Purchaser shall assume no liability or obligation relating to any act or omission by Seller relating to the Contracts that occurred prior to the Closing Date. Purchaser shall not assume any other Liabilities of Seller, or be obligated to pay, perform, or discharge any other Liabilities of Seller.

        (b)   Notwithstanding anything to the contrary set forth in this Agreement, (i) all Liabilities of Seller other than the Assumed Liabilities (the " Excluded Liabilities ") shall be retained by Seller, and (ii) Seller shall convey, transfer and assign the Acquired Assets to Purchaser, in each case free and clear of all Encumbrances (except Permitted Encumbrances) and without any assumption by Purchaser of any Liabilities of Seller whatsoever (other than the Assumed Liabilities). Excluded Liabilities shall include any liabilities or obligations not expressly included in the Assumed Liabilities including:

        (i)    any Liability for Taxes of Seller for any period;

        (ii)   any Liability for legal or other professional fees, costs, disbursements and expenses incurred by Seller or any Affiliate of Seller pursuant to or in connection with this Agreement and the consummation of the Acquisition;

        (iii)  any Liability arising out of any Action, product liability, breach of contract, warranty, tort, infringement or violation of Law or otherwise in connection with the operation of the Business or the ownership of the Acquired Assets prior to the Closing Date, whether known or unknown, and whether arising prior to, on or subsequent to the Closing Date;

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        (iv)  any Liability of Seller or any ERISA Affiliate to or in connection with any Employee or other current or former employee, director, stockholder, agent or independent contractor of Seller or any ERISA Affiliate arising, occurring or relating to any period up until the Closing Date, or with respect to any Employee Plan established, maintained, sponsored or contributed to by Seller or any ERISA Affiliate;

        (v)   any and all Liabilities related in any way to the operations, assets or properties of Seller which are not part of the Business or the Acquired Assets as of the Closing Date;

        (vi)  any Liability of Seller to indemnify any Person by reason of the fact that such person was a director, officer, employee, or agent of Seller or any of its Affiliates or was serving at the request of such entity as a partner, trustee, director, officer, employee, agent of Seller or in any other capacity with another entity;

        (vii) any Liabilities with respect to Indebtedness of Seller;

        (viii) any Liability with respect to any Excluded Asset; and

        (ix)  any other Liability of Seller arising under or in connection with any Contracts, leases, licenses, permits, commitments and other items of Personal Property or intangible personal property included in the Acquired Assets or otherwise relating to the operation of the Business, in each case arising, or otherwise relating to the period, prior to the Closing Date.

        SECTION 2.3. Purchase Price . Purchaser shall pay to Seller an amount of $1,132,000, subject to adjustment as provided in Section 8.5 (the " Purchase Price "): (a) $151,400 at the Closing, (b) subject to Section 8.5, within 25 days of the end of each calendar month beginning on or after the Closing Date (each, a " Payment Month "), an amount equal to the Purchase Price Payment Percentage applicable to such Payment Month multiplied by the Continuing End-User Revenue received by Purchaser during such Payment Month, such amount not to exceed the balance of the Purchase Price not previously paid by Purchaser to Seller (the " Unpaid Purchase Price ").

        SECTION 2.4. Allocation of Purchase Price . The parties agree that the Purchase Price shall be allocated among the Acquired Assets as described in Exhibit A , which allocation is intended to be in compliance with Section 1060 of the Code. As soon as reasonably practicable after the Closing Date, Purchaser shall prepare and deliver to Seller a final allocation schedule consistent with Exhibit A . The parties will file all Tax Returns (including amended returns and claims for refund) and information reports in a manner consistent with such final allocation schedule and none of them shall take any position inconsistent therewith.

        SECTION 2.5. Closing . Upon the terms and subject to the conditions of this Agreement, the sale and purchase of the Business and Acquired Assets contemplated by this Agreement shall close (the " Closing ") on the date set out in the first paragraph of this Agreement, referred to as the " Closing Date ". Notwithstanding the time of the Closing on the Closing Date, the parties agree that the Closing shall be deemed to have occurred on the opening of business on the Closing Date.

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        SECTION 2.6. Closing Deliveries by Seller . At the Closing, Seller shall deliver or cause to be delivered to Purchaser:

        (a)   a duly executed Bill of Sale (the " Bill of Sale ") substantially in the form of Exhibit B transferring to Purchaser good and marketable title to all of the Acquired Assets, free and clear of all Encumbrances (other than Permitted Encumbrances);

        (b)   a duly executed counterpart of an Assignment and Assumption Agreement substantially in the form of Exhibit C (the " Assignment and Assumption Agreement ") assigning to Purchaser all of Seller's right, title and interest in, to and under each of the contracts, and other items of assignable intangible personal property included in the Acquired Assets, together with the consents of any third parties which are required to make each such assignment effective as to such third parties;

        (c)   a duly executed counterpart of a Marketing and License Agreement substantially in the form of Exhibit D (the " Marketing and License Agreement ");

        (d)   a duly executed counterpart a Mutual Release substantially in the form of Exhibit E (the " Mutual Release "), releasing Seller and Purchaser from certain obligations under the paid web hosting and e-mail services agreements between them dated November 21, 2004;

        (e)   the certificates and other documents required to be delivered pursuant to Section 7.2;

        (f)    such other instruments of sale, transfer, conveyance and assignment as Purchaser and its counsel may request; and

        (g)   such other consents of any Person as may be required for the consummation of the Closing.

        SECTION 2.7. Closing Deliveries by Purchaser . At the Closing, Purchaser shall pay the amount pursuant to Section 2.3 and shall deliver or cause to be delivered to Seller:

        (a)   a duly executed counterpart of the Assignment and Assumption Agreement;

        (b)   a duly executed counterpart of the License Agreement;

        (c)   a duly executed counterpart of the Marketing and Licensing Agreement;

        (d)   a duly executed counterpart of the Mutual Release;

        (e)   the certificates and other documents required to be delivered pursuant to Section 7.1; and

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        (f)    such other instruments of sale, transfer, conveyance and assignment as Seller and its counsel may reasonably request.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER

        Seller represents and warrants to Purchaser as follows:

        SECTION 3.1. Organization, Authority and Qualification .

        (a)   Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all necessary power and authority to own, operate or lease the properties and assets which comprise the Acquired Assets and to carry on the Business as it has been and is currently conducted

        (b)   Seller has full power, authority and capacity to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents. All actions taken by Seller have been duly authorized and approved by Seller's Board of Directors. This Agreement has been, and upon Seller's execution the Transaction Documents shall have been, duly executed and delivered by Seller and this Agreement constitutes, and upon their execution, each of the Transaction Documents will constitute, a legal, valid and binding obligation of Seller enforceable against Seller in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy and insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally.

        (c)   None of the Acquired Assets and no part of the Business is owned or operated through any Subsidiary or Affiliate of Seller.

        (d)   No vote or other consent of any stockholders of Seller is required by Delaware law, other applicable law or the certificate of incorporation, bylaws or other organizational documents of Seller (as each such document has been amended) in connection with the Acquisition.

        SECTION 3.2. No Conflict . Assuming the making and obtaining of all filings, notifications, consents, approvals, authorizations and other actions if any, the execution, delivery and performance by Seller of this Agreement and the Transaction Documents do not and will not (a) violate, conflict with or result in the breach of any provision of the certificate of incorporation, bylaws or other organizational documents of Seller, (b) conflict with, or violate (or cause an event which is reasonably likely to have a Material Adverse Effect as a result of) any Law or Governmental Order applicable to Seller, the Business or any of the Acquired Assets, or (c) materially conflict with, result in any material breach of, constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the Acquired Assets pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which Seller is a party or by which any of the Acquired Assets or any assets or properties of Seller is bound or affected.

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        SECTION 3.3. Consents and Approvals . The execution, delivery and performance by Seller of this Agreement and the Transaction Documents do not and will not require any consent, approval, authorization or other order of, or action by, filing with or notification to (a) any Governmental Authority or (b) any other Person.

        SECTION 3.4. Financial Information, Books and Records and Operating Data . The amounts stated in the Financial Statements include only web hosting and domain registration revenues of the Business and no other amounts.

        SECTION 3.5. Conduct in the Ordinary Course; Absence of Certain Changes, Events and Conditions . Since June 30, 2005, the Business has been conducted in the ordinary course and consistent with past practice. As amplification and not in limitation of the foregoing, except in the ordinary course of the Business consistent with past practice of Seller, since June 30, 2005, Seller has not, with respect to the Business or any of the Acquired Assets:

        (a)   modified, amended or cancelled any of the provisions of any contract, lease or license listed on any Schedule hereto, or the rights thereunder or entered into any new contract that is not terminable on not more than 30 calendar days' notice;

        (b)   permitted or allowed any of the Acquired Assets to be subjected to any Encumbrance, other than Permitted Encumbrances and Encumbrances that will be released at or prior to the Closing;

        (c)   suffered any Material Adverse Effect or the occurrence of any event or events which, individually, or in the aggregate, has or have had, or could reasonably be expected to have, a Material Adverse Effect;

        (d)   made any material changes in the customary methods of operations of the Business;

        (e)   sold, transferred, leased, subleased, licensed or otherwise disposed of any properties or assets(including intangible assets), used in the Business;

        (f)    written down or written up (or failed to write down or write up in accordance with GAAP consistent with past practice) the value of any of the Acquired Assets;

        (g)   amended, terminated, canceled or compromised any claims or waived any other rights used in the Business;

        (h)   made any change in any method of accounting or accounting practice or policy of Seller in respect of the Business other than such changes as are required by GAAP;

        (i)    accelerated or discounted the collection of Receivables, nor delayed the payment of accounts payable or otherwise made any changes in the methods, practices or procedures relating to Receivables, accounts payable or credit policies, and collection and payment of such Receivables and accounts payable, respectively, have at all times been made in the ordinary course of the Business consistent with past practice;

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        (j)    failed to maintain the Acquired Assets in all material respects in accordance with Seller's past business practice and in good operating condition and repair, reasonable wear and tear excepted;

        (k)   allowed any Permit that was issued to Seller with respect to the Business or otherwise relates to the Business to lapse or terminate or failed to renew any such Permit that is scheduled to terminate or expire within 45 calendar days of the Closing Date;

        (l)    allowed any insurance policy that was issued to Seller with respect to the Business or otherwise relates to the Business to lapse or terminate or failed to renew any such insurance policy that is scheduled to terminate or expire within 45 calendar days of the Closing Date;

        (m)  disclosed any secret or confidential Intellectual Property (except by way of issuance of a patent) or permitted to lapse or become abandoned any Intellectual Property (or any registration or grant thereof or any application relating thereto) relating to the Business to which, or under which, Seller has any right, title, interest or license;

        (n)   suffered any Liability, casualty, loss, damage with respect to any of the Acquired Assets, regardless of whether such Liability, casualty, loss, damage was covered by insurance;

        (o)   entered into any transaction with respect to the Business outside the ordinary course of the Business and not consistent with Seller's past practice; or

        (p)   agreed, whether in writing or otherwise, to take any of the actions specified in this Section 3.5 or granted any options to purchase, rights of first refusal, rights of first offer or any other similar rights or commitments with respect to any of the actions specified in this Section 3.5, except as expressly contemplated by this Agreement.

        SECTION 3.6. Litigation . There are no Actions relating to the Business or affecting any of the Acquired Assets (including any Action relating to any product alleged to have been sold by the Business and alleged to have been defective, improperly designed or manufactured or improperly labeled), pending, before any Governmental Authority or arbitral tribunal or, to Seller's Knowledge, threatened to be brought by or before any Governmental Authority or arbitral tribunal. None of Seller, any Affiliate of Seller or any of the Acquired Assets is subject to any, Governmental Order (or order of any arbitral tribunal) (nor to Seller's Knowledge, is any such Governmental Order threatened to be imposed by any Governmental Authority (or arbitral tribunal)).

        SECTION 3.7. Certain Interests . Neither Seller nor any Affiliate thereof, nor any officer or director of Seller or any such Affiliate and, no relative or spouse (or relative of such spouse) or person who resides with, or is a dependent of, any such Person: (a) has any direct or indirect financial interest in any competitor, supplier or customer of Seller; (b) owns, directly or indirectly, in whole or in part, or has any other interest in any tangible or intangible property which Seller uses or has used in the conduct of the Business or otherwise; (c) has outstanding any Indebtedness to Seller other than the advances for Business expenses not exceeding $10,000 in the aggregate; or (d) is a party to any contract, agreement, or arrangement with Seller.

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        SECTION 3.8. Compliance with Laws; Permits .

        (a)   Seller and the Business are in compliance with, and the Business has been conducted and is currently being conducted and the Acquired Assets are being used in compliance with, all Laws and Governmental Orders applicable to the Business or Seller, and Seller has not received any notice that it is in breach of any thereof. No event has occurred which, with or without the passage of time or the giving of notice, or both, would constitute a non-compliance with or violation of applicable Law. Other than laws generally applicable to businesses in the industry in which the Business is operated, Seller is not subject to any Law, or, to Seller's Knowledge, any proposed Law, which individually or in the aggregate has had or is reasonably likely to have a Material Adverse Effect on the Business or the Acquired Assets or on Purchaser's ability to acquire any property or conduct Business in any area.

        (b)   Seller has all federal, state and local governmental licenses, permits, approvals, authorizations and consents (" Permits ") necessary for the conduct of the Business and the ownership of the Acquired Assets, and such Permits are in full force and effect, and no violations are or have been recorded in respect of any thereof, and no proceeding is pending or, to Seller's Knowledge, threatened to revoke or limit any thereof. Seller has not entered into any agreement with, had any material dispute with, or been investigated by, any governmental agency or authority, community group or other third party that could restrict the operation of the Business or adversely affect the ownership, use, operation or economic value of the Acquired Assets.

        SECTION 3.9. Material Contracts .

        (a)   Schedule 2.1(a)(i) lists each of the following contracts and agreements (including oral arrangements) of Seller relating to the Business:

        (i)    each contract or agreement involving payment or receipt by Seller of an amount equal to or in excess of $5,000 during the remaining term of such contract or agreement;

        (ii)   each purchase order or supply order in each case involving more than $5,000 in the aggregate from any one customer or supplier;

        (iii)  each contract or agreement which by its terms cannot be terminated without penalty within 30 calendar days;

        (iv)  all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements;

        (v)   all management contracts and contracts with independent contractors or consultants (or similar arrangements);

        (vi)  all contracts and agreements with any Governmental Authority;

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        (vii) any agreement for the employment of any individual by or for Seller on a full-time, consulting or other basis or for the retention of any person as a sales representative, commission agent or on any other basis;

        (viii) all contracts and agreements that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any geographic area or during any period of time and all non-solicitation or similar agreements;

        (ix)  all contracts, agreements and arrangements with any Employee, including any non-competition agreements, confidentiality agreements and any agreements relating to the Intellectual Property;

        (x)   all contracts and agreements between or among Seller and an Affiliate of Seller; and

        (xi)  all other contracts and agreements, whether or not made in the ordinary course of the Business, which are material to the conduct of the Business.

        For purposes of this Agreement, " Material Contracts " shall mean all contracts and agreements disclosed in Schedule 2.1(a)(i). Each Material Contract is a Contract.

        (b)   Each Material Contract (i) is valid and binding on Seller and, to Seller's Knowledge, on the other respective parties thereto and is in full force and effect, (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence, and (iii) may be assigned or transferred to Purchaser without any consent or approval from, or notification to, any Person. Neither Seller, nor any other party thereto to Seller's Knowledge, is in breach of, or default under, any Material Contract.

        (c)   There is no contract, agreement or other arrangement granting any Person any preferential right to purchase, other than in the ordinary course of the Business consistent with past practice, any of the Acquired Assets.

        (d)   Seller has heretofore delivered to Purchaser and its representatives true, correct and complete copies of each Material Contract and all ancillary documents pertaining thereto.

        SECTION 3.10. Intellectual Property .

        (a)   Schedule 3.10(a) sets forth a true and complete list of all patents, trademarks, tradenames, service marks and copyrights, and applications for any of the foregoing, and all other Intellectual Property, material to the Business (other than trade secrets, confidential business information and technical information that is not capable of being described in Schedule 3.10(a), but which shall nevertheless be considered part of Intellectual Property) and its owner and a true and complete list of all Licensed Intellectual Property, including any license or sublicense thereof. In each case where a registration or application for registration listed in Schedule 3.1(a) is held by assignment, the assignment has been duly recorded with the United States Patent and Trademark Office, or in the case of any foreign registration or application for registration, with the proper Governmental Authority in such foreign jurisdiction. To Seller's Knowledge, the rights of Seller in or to such Intellectual Property do not conflict with or infringe on the rights of any other Person, and Seller has not received any claim or notice from any Person, to such effect.

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        (b)   (i) all the Owned Intellectual Property is owned by Seller free and clear of any Encumbrance (other than Permitted Encumbrances), (ii) Seller has the right, pursuant to valid and enforceable licenses, to use the Licensed Intellectual Property in the manner in which the Licensed Intellectual Property is currently being used, and (iii) no Actions have been made or asserted or are pending (nor, to Seller's Knowledge has any such Action been threatened) against Seller either (A) based upon or challenging or seeking to deny or restrict the use of any of the Intellectual Property or (B) alleging that any services provided or products sold by Seller are being provided or sold in violation of any patents or trademarks, or any other similar rights of any Person. To Seller's Knowledge, no Person is using any patents, copyrights, trademarks, service marks, trade names, trade secrets or similar property that are confusingly similar to the Owned Intellectual Property or that infringe upon the Owned Intellectual Property or upon the rights of Seller therein. Seller has not granted any license or other right to any other Person with respect to the Owned Intellectual Property. The consummation of the transactions contemplated by this Agreement will not result in the termination or impairment of any of the Owned Intellectual Property or any of the rights of Seller in any of the Licensed Intellectual Property.

        (c)   The Intellectual Property described in Schedule 3.1(a), together with the Intellectual Property consisting of trade secrets and confidential technical and business information, constitutes all of the Intellectual Property used, held or currently intended to be used by Seller in the conduct of the Business.

        SECTION 3.11. Acquired Assets .

        (a)   Seller owns, leases or licenses or otherwise has the legal right to use all of the Acquired Assets,, and enjoys the right to the benefits of all of the Material Contracts. Seller has good and valid title to or, in the Acquired Assets, free and clear of all Encumbrances, except Permitted Encumbrances and Encumbrances which will be discharged at Closing. The Acquired Assets do not include any ownership, leasehold or other interest in any real property.

        (b)   Following the consummation of the transactions contemplated by this Agreement, Purchaser will own, pursuant to good and marketable title, or lease, under valid and subsisting leases, or otherwise maintain its respective interest in the Acquired Assets without incurring any penalty or other adverse consequence, including any increase in rentals, royalties, or licenses or other fees that may be imposed, as a result of, or arising from, the consummation of the transactions contemplated by this Agreement. Immediately following the Closing, Purchaser shall have possession of all documents, books, records, agreements and financial data of any sort necessary to conduct the Business.

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        SECTION 3.12. Employee Benefit Plans .

         (a)    Employee Plans — General .

        (i)    Schedule 3.12(a)(i) sets forth a true and complete list of all Seller Plans. True and complete copies of each of Seller Plans and related documents have been delivered to Purchaser.

        (ii)   There are no Pension Plans or Multiemployer Plans and none of the Acquired Assets is subject to a lien under ERISA or the Code.

        (iii)  Except as set forth on Schedule 3.12(a)(i), with respect to each of Seller Plans: (A) all payments required by any Seller Plan, any collective bargaining agreement or other agreement, or by law (including all contributions, insurance premiums, or intercompany charges) with respect to all periods through the Closing Date shall have been made prior to the Closing Date (on a pro rata basis where such payments are otherwise discretionary at year end) or provided for by Seller as applicable, by full accruals in accordance with GAAP as if all targets required by such Seller Plan had been or will be met at maximum levels on its financial statements; (B) no claim, lawsuit, arbitration or other action has been threatened, asserted, instituted, or, to Seller's Knowledge, is anticipated against Seller Plans (other than non-material routine claims for benefits, and appeals of such claims), any trustee or fiduciaries thereof, Seller, any ERISA Affiliate, any director, officer, or employee thereof, or any of the assets of any trust of Seller Plans; and (C) there has been no "prohibited transaction" as defined in Section 406 of ERISA or Section 4975 of the Code regarding any Seller Plan other than a transaction qualifying for a statutory or administrative exemption.

        (iv)  Neither Seller nor any ERISA Affiliate maintains, contributes to, or in any way provides for any benefits of any kind whatsoever (other than under Section 4980B of the Code, the Federal Social Security Act, or a Qualified Plan) to any current or future retiree or terminee. Neither Seller nor any ERISA Affiliate has any unfunded liabilities pursuant to any Seller Plan that is not intended to be qualified under Section 401(a) of the Code and is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA, a nonqualified deferred compensation plan or an excess benefit plan.

        (b)    Group Health Plans .    Each Seller Plan (i) if a group health plan within the meaning of Section 607(1) of ERISA and Section 5000(b)(1) of the Code, is in compliance with COBRA, and (ii) if a group health plan within the meaning of Section 733(a) of ERISA and Section 9832(a) of the Code, is in compliance with Sections 701 through 734 of ERISA and Sections 4980D and 9801 through 9833 of the Code. Seller shall be liable for the continuation of group health plan coverage in accordance with Sections 601 through 608 of ERISA and Section 4980B(f) of the Code for all Employees and other individuals whose loss of coverage occurred prior to or in connection with the Transaction. For purposes of this provision, "group health plan" has the same meaning as set forth in Section 607(1) of ERISA and Section 5000(b)(1) of the Code.

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        SECTION 3.13. Brokers . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller or any of its Affiliates.

        SECTION 3.14. Full Disclosure . No representation or warranty of Seller in this Agreement or any other Transaction Document, nor any statement or certificate furnished or to be furnished to Purchaser pursuant to this Agreement, any other Transaction Document or otherwise in connection with the transactions contemplated by this Agreement, contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading. There is no fact or circumstance (other than general economic conditions) known to Seller that could have a Material Adverse Effect or, in the future as now reasonably foreseeable, is likely to have a Material Adverse Effect that is not set forth in this Agreement.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER

        As an inducement to Seller to enter into this Agreement, Purchaser hereby represents and warrants to Seller as follows:

        SECTION 4.1. Organization and Authority of Purchaser .

        (a)   Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

        (b)   Purchaser has all necessary corporate power and authority to enter into this Agreement and the Transaction Documents to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Transaction Documents of which Purchaser is a signatory, the performance by Purchaser of its obligations hereunder and thereunder and the consummation by Purchaser of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of Purchaser. This Agreement has been, and upon their execution, the Transaction Documents of which Purchaser is a signatory will be, duly executed and delivered by Purchaser, and this Agreement constitutes, and upon execution the Transaction Documents of which Purchaser is a signatory will constitute, legal, valid and binding obligations of Purchaser enforceable against Purchaser in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy and insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally.

        SECTION 4.2. No Conflict . Assuming the making and obtaining of all filings, notifications, consents, approvals, authorizations and other actions referred to in Section 4.3, the execution, delivery and performance of this Agreement and the Transaction Documents of which Purchaser is a signatory do not and will not (a) violate, conflict with or result in the breach of any provision of the certificate of incorporation or bylaws of Purchaser, (b) conflict with or violate any Law or Governmental Order applicable to Purchaser or (c) materially conflict with, or result in any material breach of, constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation, or cancellation of, or result in the creation of any Encumbrance on any of the assets or properties of Purchaser pursuant to any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which Purchaser is a party or by which any of such assets or properties is bound or affected which could materially adversely affect or restrict Purchaser's ability to consummate the transactions contemplated hereby.

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        SECTION 4.3. Governmental Consents and Approvals . The execution, delivery and performance by Purchaser of this Agreement and the Transaction Documents of which Purchaser is a signatory do not and will not require any consent, approval, authorization or other order of, action by, filing with, or notification to any Governmental Authority.

        SECTION 4.4. Brokers . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser or any Affiliate of Purchaser.

ARTICLE V
ADDITIONAL AGREEMENTS

        SECTION 5.1. Conduct of Business Prior to the Closing .

        (a)   Seller hereby covenants and agrees that, except as contemplated by this Agreement, between the date hereof and the Closing Date, the Business shall be conducted in the ordinary course consistent with Seller's past practices. Without limiting the generality of the foregoing, Seller shall (i) continue its advertising and promotional activities, and pricing and purchasing policies in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for, or materially modify the terms of, any of its Receivables or payables, respectively; (iii) use its reasonable best efforts to preserve Seller's current relationships with the customers, suppliers and other Persons with which they have business relationships with respect to the Business; and (iv) exercise, but only after notice to and consent by Purchaser, any rights of renewal pursuant to the terms of any of the leases or subleases which by their terms would otherwise expire.

        (b)   Seller covenants and agrees that, between the date hereof and the Closing Date, without the prior written consent of Purchaser, it will not do, or permit to be done, any of the things enumerated in the second sentence of Section 3.6 (including clauses (a) through (s) thereof).

        SECTION 5.2. Access to Information .

        (a)   From the date hereof until the Closing, Seller shall and shall cause its officers, directors, employees, agents, representatives, accountants and counsel to (i) afford the officers, employees and authorized agents, accountants, counsel and representatives of Purchaser reasonable access, during normal business hours, to the offices, properties, warehouses, other facilities, books and records of Seller relating to the Business and to those officers, directors, management employees, agents, accountants and counsel of Seller who have any knowledge relating to the Business, (ii) furnish to the officers, employees and authorized agents, accountants, counsel and representatives of Purchaser such additional financial and operating data and other information regarding the Acquired Assets (or legible copies thereof) as Purchaser may from time to time reasonably request, and (iii) furnish to the officers, employees and authorized agents, accountants, counsel and representatives of Purchaser such financial or other information or other information necessary for the preparation by Purchaser of documents required for financing the purchase of the Acquired Assets to the extent such financial or other information currently exists or can be obtained without unreasonable effort and expense.

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        (b)   In order to facilitate the resolution of any claims made by or against or incurred by Purchaser or Seller after the Closing Date or for any other reasonable purpose, for a period of five years following the Closing, Seller and Purchaser shall each (i) retain the books and records in their possession which relate to the Acquired Assets and the Business for periods prior to the Closing, and (ii) upon reasonable notice, afford the officers, employees and authorized agents and representatives of the other party reasonable access (including the right to make photocopies), during normal business hours, to such books and records.

        SECTION 5.3. Confidentiality .

        (a)   Seller shall and shall cause its agents, representatives, Affiliates, employees, officers and directors to treat and hold as confidential (and not disclose or provide access to any Person to) all information relating to trade secrets, processes, patent and trademark applications, product development, price, customer and supplier lists, pricing and marketing plans, policies and strategies, details of client and consultant contracts, operations methods, product development techniques, business acquisition plans, new personnel acquisition plans and all other confidential information with respect to the Business. In the event tha