exv10w1



 






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.



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	1.	 	DEFINITIONS	 	 	1	 
	2.	 	PURCHASE AND SALE OF VISUALE ASSETS AND SOFTWORKS ASSETS	 	 	6	 
	 	 	2.1	 	Visuale Assets and Softworks Assets	 	 	6	 
	 	 	2.2	 	Excluded Liabilities	 	 	7	 
	 	 	2.3	 	Instruments of Sale and Transfer	 	 	7	 
	3.	 	PURCHASE PRICE	 	 	7	 
	 	 	3.1	 	Purchase Price	 	 	7	 
	 
	 	 	 	3.1.1	 	Initial Payment	 	 	7	 
	 
	 	 	 	3.1.2	 	Subsequent Payment	 	 	8	 
	 
	 	 	 	3.1.3	 	No Fractional Shares; Limitation on Issuance	 	 	8	 
	 	 	3.2	 	Contingent Payments	 	 	8	 
	 
	 	 	 	3.2.1	 	Contingent Payments	 	 	8	 
	 
	 	 	 	3.2.2	 	Payment of Contingent Payments	 	 	8	 
	 
	 	 	 	3.2.3	 	Minimum Contingent Payment Amounts	 	 	8	 
	 
	 	 	 	3.2.4	 	Verification of Contingent Payment Calculations	 	 	9	 
	 
	 	 	 	3.2.5	 	Applicable Currency	 	 	9	 
	 	 	3.3	 	Allocation of Purchase Price	 	 	9	 
	 	 	3.4	 	Seller to pay Softworks	 	 	10	 
	4.	 	REPRESENTATIONS AND WARRANTIES OF SELLER, THE STOCKHOLDERS AND SOFTWORKS	 	 	10	 
	 	 	4.1	 	Organization; Good Standing; Power	 	 	10	 
	 	 	4.2	 	Authority; Authorization; Enforceability	 	 	10	 
	 	 	4.3	 	No Conflicts	 	 	10	 
	 	 	4.4	 	Consents and Approvals	 	 	11	 
	 	 	4.5	 	Title to Assets; Assets Complete	 	 	11	 
	 	 	4.6	 	Contracts	 	 	12	 
	 	 	4.7	 	Claims and Legal Proceedings	 	 	12	 
	 	 	4.8	 	Taxes	 	 	12	 
	 	 	4.9	 	Intellectual Property	 	 	13	 
	 
	 	 	 	4.9.1	 	Original Work	 	 	13	 
	 
	 	 	 	4.9.2	 	Reserved	 	 	13	 
	 
	 	 	 	4.9.3	 	Source Code	 	 	13	 
	 
	 	 	 	4.9.4	 	Licenses and Agreements	 	 	14	 
	 
	 	 	 	4.9.5	 	No Infringement	 	 	14	 
	 
	 	 	 	4.9.6	 	Valid and Subsisting; Applications and Registrations	 	 	14	 
	 
	 	 	 	4.9.7	 	No Government Funding	 	 	15	 
	 
	 	 	 	4.9.8	 	No Open Source	 	 	15	 
	 
	 	 	 	4.9.9	 	Documentation	 	 	15	 
	 
	 	 	 	4.9.10	 	Participating Developers	 	 	15	 






	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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	 	 	 	4.9.11	 	No Impairment	 	 	15	 
	 	 	4.10	 	Compliance With Laws	 	 	15	 
	 	 	4.11	 	Insurance	 	 	16	 
	 	 	4.12	 	Brokerage	 	 	16	 
	 	 	4.13	 	Seller Liabilities; Fair Consideration; No Fraudulent Conveyance	 	 	16	 
	 	 	4.14	 	Proxy/Information Statement	 	 	16	 
	 	 	4.15	 	Questionnaire	 	 	17	 
	 	 	4.16	 	Investment for Own Account	 	 	17	 
	 	 	4.17	 	Legends	 	 	17	 
	 	 	4.18	 	Full Disclosure	 	 	18	 
	 	 	4.19	 	Employees	 	 	18	 
	 	 	4.20	 	Softworks Assets	 	 	19	 
	 	 	4.21	 	Trading in Onyx Common Stock	 	 	19	 
	 	 	4.22	 	No Other Representations and Warranties	 	 	19	 
	5.	 	REPRESENTATIONS AND WARRANTIES OF BUYER	 	 	19	 
	 	 	5.1	 	Organization; Corporate Power	 	 	20	 
	 	 	5.2	 	Authority; Authorization; Enforceability	 	 	20	 
	 	 	5.3	 	Valid Issuance of Stock	 	 	20	 
	 	 	5.4	 	No Conflicts	 	 	20	 
	 	 	5.5	 	Brokerage	 	 	20	 
	 	 	5.6	 	Buyer Information	 	 	21	 
	 	 	5.7	 	Full Disclosure	 	 	21	 
	6.	 	DELIVERIES	 	 	21	 
	 	 	6.1	 	Deliveries by Seller and Softworks	 	 	21	 
	 	 	6.2	 	Deliveries by Buyer	 	 	22	 
	7.	 	COVENANTS	 	 	23	 
	 	 	7.1	 	Further Assurances	 	 	23	 
	 	 	7.2	 	Continued Existence	 	 	23	 
	 	 	7.3	 	Employees	 	 	23	 
	 	 	7.4	 	Pennystream Confidentiality Acknowledgement	 	 	24	 
	 	 	7.5	 	Certain Waivers; Covenant Not to Sue	 	 	24	 
	 	 	7.6	 	Distribution of Onyx Common Stock to Stockholders	 	 	25	 
	 	 	7.7	 	Promotional Materials	 	 	25	 
	 	 	7.8	 	Post-Closing Cooperation	 	 	25	 
	 	 	7.9	 	Publicity	 	 	25	 
	 	 	7.10	 	Initial Product Build	 	 	25	 
	 	 	7.11	 	Bulk Transfer Laws	 	 	26	 
	 	 	7.12	 	Seller Liabilities and nFormed Payments	 	 	26	 
	 	 	7.13	 	Physical Delivery of Assets	 	 	26	 
	 	 	7.14	 	Transactions in Buyer Common Stock	 	 	26	 
	8.	 	TAXES AND COSTS; APPORTIONMENTS	 	 	27	 






	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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	 	 	8.1	 	Transfer Taxes	 	 	27	 
	 	 	8.2	 	Transaction Costs	 	 	27	 
	 	 	8.3	 	Apportionments	 	 	27	 
	 	 	8.4	 	Cooperation and Records Retention	 	 	27	 
	 	 	8.5	 	Control of Tax Proceedings	 	 	28	 
	9.	 	COVENANTS NOT TO COMPETE	 	 	28	 
	 	 	9.1	 	Non-Competition Covenants by Seller, the Stockholders, and Softworks	 	 	28	 
	 	 	9.2	 	Minor Investments	 	 	28	 
	 	 	9.3	 	Multiple Divisions	 	 	28	 
	 	 	9.4	 	Remedies	 	 	29	 
	10.	 	SURVIVAL AND INDEMNIFICATION
	 	 	29	 
	 	 	10.1	 	Survival	 	 	29	 
	 	 	10.2	 	Indemnification by Seller, the Stockholders, and Softworks	 	 	29	 
	 	 	10.3	 	Indemnification by Buyer	 	 	31	 
	 	 	10.4	 	Time Limitations	 	 	32	 
	 	 	10.5	 	Procedure for Indemnification	 	 	32	 
	 	 	10.6	 	Set-Off	 	 	33	 
	 	 	10.7	 	Right to Cancel Shares	 	 	34	 
	 	 	10.8	 	Payment by Set-Off or Cancellation of Indemnification Shares	 	 	34	 
	 	 	10.9	 	Stop Transfer Order	 	 	35	 
	 	 	10.10	 	Election of Remedies	 	 	35	 
	 	 	10.11	 	Specific Performance	 	 	35	 
	 	 	10.12	 	Stockholder Representative	 	 	36	 
	11.	 	MISCELLANEOUS	 	 	36	 
	 	 	11.1	 	Confidentiality Obligations of Seller and the Stockholders and Softworks Following the Closing	 	 	36	 
	 	 	11.2	 	Severability	 	 	37	 
	 	 	11.3	 	Modification and Waiver	 	 	37	 
	 	 	11.4	 	Notices	 	 	37	 
	 	 	11.5	 	Assignment	 	 	39	 
	 	 	11.6	 	Captions	 	 	39	 
	 	 	11.7	 	Entire Agreement	 	 	39	 
	 	 	11.8	 	No Third-Party Rights	 	 	39	 
	 	 	11.9	 	Counterparts	 	 	39	 
	 	 	11.10	 	Governing Law	 	 	40	 
	 	 	11.11	 	Waiver of Conflicts	 	 	40	 






	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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Exhibits




	 	 	 
	Exhibit 1.38

	 	Softworks Assets
	 
	Exhibit 1.47

	 	Transferring Employees
	 
	Exhibit 6.1(a)

	 	Visuale Bill of Sale
	 
	Exhibit 6.1(b)

	 	Softworks Bill of Sale
	 
	Exhibit 6.1(k)

	 	Investor Questionnaire
	 
	Exhibit 6.1(l)

	 	Registration Rights Agreement
	 
	Exhibit 6.1(m)

	 	Reseller Agreement
	 
	Exhibit 6.1(p)

	 	Assets to Be Delivered by Electronic Delivery
	 
	Exhibit 6.2(e)

	 	Resale Certificate






	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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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:




	1.	 	Definitions





     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.



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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.




	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION





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     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.




	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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).



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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.



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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.	 	Purchase and Sale of Visuale Assets and Softworks 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



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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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.	 	Purchase Price





     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”).



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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          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:




	 	(a)	 	[*] Sales from Stand-Alone-Product Licenses; plus
	 
	 	(b)	 	[*] Sales from Derived-Product Licenses.





          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




	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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          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




	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION





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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.




	4.	 	Representations and Warranties of Seller, the Stockholders and Softworks





     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



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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:




	 	(a)	 	the Visuale Assets to be transferred to Acquiror at Closing
include all rights of Seller, its Affiliates and Softworks, whether,
statutory, equitable, or otherwise, with respect to the protection
of confidentiality or trade secrecy in or to any of the Visuale
Assets, including without limitation under any obligations of any of
the Transferring Employees, and the rights to waive, release or
otherwise end or lessen any such obligations;
	 
	 	(b)	 	the Visuale Assets are not based upon, do not now contain,
incorporate, or use in any way, and never have contained,
incorporated, or used in any way, any of the “Software” licensed to
Seller by Softworks under that certain Visual Enterprise License
Agreement dated as of November [   ], 2000, by and among Softworks,
Pennystream, Craig Sproule, and Kim Riley (as the “Licensors”) and
Visual





	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION





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	 	 	 	Enterprise, LLC (the Seller’s predecessor in interest), nor has any
of such Software been used in any way in the development or
modification of any of the Visuale Assets. The Licensors under
such Visual Enterprise License Agreement never delivered any list
of major elements of Software incorporated or used in any way in
the Visuale Assets, as referenced in Schedule I of such Visual
Enterprise License Agreement; and
	 
	 	(c)	 	the Visuale Assets are not in whole or in part based upon,
and do not now contain, incorporate, or use in any way, and never
have contained, incorporated, or used in any way, any preexisting or
other legally-protectable works or other matter or materials, in
which or to which any of Seller, its Affiliates, the Stockholders or
Softworks claims or has any right to claim, or (except as to the
rights and properties transferred by Pennystream under that certain
Pennystream Assignment dated as of November 15, 2000, between
Pennystream and Visual Enterprise, LLC (the Seller’s predecessor in
interest) (the “Pennystream Assignment”)) ever has claimed or had
any right to claim, any ownership or right to control, protect, or
to exploit (whether or not licensed explicitly or by implication or
course of practice to Seller), other than Softworks’ rights as
explicitly provided in the Reseller Agreement entered at Closing
between Buyer and Softworks.





     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



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     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-



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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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 licensee, as a condition to the
licensee’s rights to copy or distribute such software or materials, any
obligation to disclose source codes of, or to permit or authorize further

reproduction, distribution or modification of, the materials combined with,
derived from, or distributed with the software or materials so licensed.



          4.9.9 Documentation



     The Books and Records and any other embodiments and documentation of the
Assets delivered to Buyer will be complete, fully disclose the Assets and be
sufficient to enable Buyer to fully exercise and exploit the rights acquired by
Buyer under this Agreement.



          4.9.10 Participating Developers



     Schedule 4.9.10 to the Disclosure Memorandum contains a complete list of
all Participating Developers, specifying for each any relationship between the
Participating Developer and Seller, any Stockholder or Softworks (e.g.,
employee, contractor, etc.), the general timeframe during which such
relationship was in effect and a list of any agreements relating to such
relationship. Seller has furnished to Buyer full and complete copies of such
agreements and other items identified therein. To the knowledge of Seller, the
Stockholders, and Softworks, none of the Participating Developers, by or in the
course of activities in such relationship, violated any noncompetition or
nondisclosure agreement or other right or property of any third party.



          4.9.11 No Impairment



     The consummation of the transactions contemplated by this Agreement and
the Transaction Documents will not alter or impair any of the Intellectual
Property, and the Assets may be transferred to Buyer hereunder without the
consent or approval of any other party or Governmental Body.



     4.10 Compliance With Laws



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     Each of Seller, the Stockholders and Softworks is and has been in
compliance in all material respects with all laws, statutes, rules, ordinances
and regulations promulgated by any Governmental Body and all Judgments
applicable to the ownership or operation of the Assets or the sale of the
Product. None of Seller, any Shareholder and Softworks has received any notice
of any alleged violation (whether past or present and whether remedied or not),
nor is Seller, any Shareholder or Softworks aware of any basis for any claim of
any such violation, of any such law, statute, rule, ordinance, regulation or
Judgment. To Seller’s, any Stockholder’s or Softworks’ knowledge, there is no
law, statute, rule, ordinance or regulation promulgated by any Governmental
Body or any Judgment that materially and adversely affects or is reasonably
expected to materially and adversely affect the ability of Buyer to own or
operate the Assets or to manufacture, use, market, promote, sell or distribute
the Product from and after the Closing.



     4.11 Insurance



     Seller has maintained adequate insurance protection against all
liabilities, Claims and risks against which it is customary for companies
engaged in the same or a similar business similarly situated to insure.



     4.12 Brokerage



     Except for Ridgecrest Capital Partners Incorporated, none of Seller, the
Stockholders, and Softworks has retained any broker or finder in connection
with the transactions contemplated by this Agreement. Any brokerage or
finder’s fee due to Ridgecrest Capital Partners Incorporated or due to any
broker or finder in violation of the foregoing representation shall be paid by
Seller.



     4.13 Seller Liabilities; Fair Consideration; No Fraudulent Conveyance.



     Schedule 4.13 to the Disclosure Memorandum sets forth all Liabilities and
all creditors of Seller as of the date hereof (the “Seller Liabilities”). The
sale of the Assets pursuant to this Agreement is made in exchange for fair and
equivalent consideration. Neither Seller nor Softworks is now insolvent, nor
will either of them be rendered insolvent by the sale, transfer and assignment
of the Assets pursuant to the terms of this Agreement. Neither Seller nor
Softworks is entering into this Agreement or any of the other agreements
referenced in this Agreement with the intent to defraud, delay or hinder its
creditors, and the consummation of the transactions contemplated by this
Agreement, and the other agreements referenced by this Agreement, will not have
any such effect. The transactions contemplated in this Agreement or any
agreements referenced in this Agreement will not constitute a fraudulent
conveyance, or otherwise give rise to any right of any creditor of Seller or
Softworks to any of the Assets after the Closing.



     4.14 Proxy/Information Statement



     Seller acknowledges that the Onyx Common Stock has not been and will not
prior to issuance be registered under the Securities Act and will be issued in
reliance on the private offering exemptions contained in Section 4(2) of the
Securities Act and Rule 506 of Regulation D promulgated thereunder. In
connection with the transactions contemplated hereby, Seller has distributed to
its stockholders a consent solicitation statement (the



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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"Proxy/Information Statement”) for the purpose of soliciting the requisite
approval of the transactions contemplated hereunder. The Proxy/Information
Statement does not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.



     4.15 Questionnaire



     Each Stockholder has delivered at the Closing a complete executed Investor
Questionnaire in the form attached hereto as Exhibit 6.1(j). Each
Stockholder’s responses to the questions contained in the Investor
Questionnaire are true and complete as of the date of this Agreement as if made
on the date hereof. Each Stockholder and each stockholder of Seller is an
“accredited investor” within the meaning of Rule 501 of the Securities Act.



     4.16 Investment for Own Account



     The Onyx Common Stock is being acquired by Seller for investment for its
own account, not as a nominee or agent, and not with a view to distribution of
any part thereof; Seller has no present intention of selling, granting any
participation in or otherwise distributing any of the Onyx Common Stock in a
manner contrary to the Securities Act or to any applicable state securities or
blue sky law, nor does Seller have any contract, undertaking agreement or
arrangement with any person or entity to sell, transfer or grant a
participation to such person or entity with respect to any of the Onyx Common
Stock.



     4.17 Legends



     Seller understands that, prior to the effectiveness of a registration
statement registering the shares of Onyx Common Stock, certificates or other
instruments representing such shares of Onyx Common Stock will bear legends
substantially similar to the following, in addition to any other legends
required by federal or state laws:




The securities evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended (the “Act”), or any
applicable state law, and no interest therein may be sold, distributed,
assigned, offered, pledged or otherwise transferred unless (a) there is
an effective registration statement under the Act and applicable state
securities laws covering any such transaction involving these securities
or (b) the corporation receives an opinion of legal counsel for the
holder of these securities (concurred in by legal counsel for the
corporation) stating that such transaction is exempt from registration or
the corporation otherwise satisfies itself that such transaction is
exempt from registration.



     Seller agrees that, in order to ensure and enforce compliance with the
restrictions imposed by applicable law and those referred to in the foregoing
legend, Buyer may, prior to the effectiveness of any registration statement,
issue appropriate “stop transfer” instructions to its transfer agent, if any,
with respect to any certificate representing shares of the Onyx Common Stock
issued pursuant to Section 3.1 or, if Buyer transfers its own securities, that
it may make appropriate notation to the same effect in Buyer’s records.



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     4.18 Full Disclosure



     To the knowledge of Seller, the Stockholders and Softworks, no information
furnished to Buyer in connection with this Agreement (including, but not
limited to, information in the Schedules to the Disclosure Memorandum) is false
or misleading in any material respect. In connection with such information and
with this Agreement and the transactions contemplated hereby, none of Seller,
the Stockholders, and Softworks has made any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements made or information delivered, in light of the circumstances under
which they were made, not materially misleading.



     4.19 Employees



     (a) The Seller, Softworks and Pennystream have supplied to the Buyer true
and correct details as at Closing in respect of each Transferring Employee and
all terms and conditions that apply to, or that have applied to, the any of
Transferring Employees. None of Seller, the Stockholders, Softworks and their
Affiliates has made any representations to any Employee in respect of future
employment with the Buyer. Except for amounts listed on Schedule 4.19(e) of
the Disclosure Memorandum, all termination payments have been made to the
Transferring Employees, or shall be made at or before Closing, to effect lawful
terminations of employment for all Transferring Employees.



     (b) None of Seller, Softworks, Pennystream and their Affiliates has
violated any applicable law or regulation relating to employment of labor,
including without limitation Occupational Health and Safety legislation, Equal
Opportunity legislation and all other laws or regulations relating to labor
relations, labor standards or employment practices and any regulations
thereunder, or engaged in any conduct with respect to the Employees which will
or may result in any liability to the Seller, Softworks, Pennystream, their
Affiliates, or the Buyer.



     (c) Softworks, Pennystream and their Affiliates have made timely payments
of any taxes required to be deducted and withheld from the wages and salaries
paid to the Transferring Employees, and have paid all Transferring Employees in
accordance with all applicable awards, legislation or agreements whether
registered or otherwise.



     (d) Subject to Section 4.19(e) and the matters described in Schedule
4.19(e) to the Disclosure Memorandum, to the knowledge of Seller, there are no
facts which could result in any Employee having any valid claim against the
Seller, Softworks, Pennystream, their Affiliates, or the Buyer, whether under
law or any employment agreement or otherwise on account of or for:




	 	(i)	 	overtime;
	 
	 	(ii)	 	wages or salaries;
	 
	 	(iii)	 	any statute, ordinance, regulation or award
relating to minimum wages or other working conditions;
	 
	 	(iv)	 	redundancy pay or payment in lieu of notice;





	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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	 	(v)	 	workers’ compensation claims or common law claims
for injury or any kind of disease;
	 
	 	(vi)	 	discrimination, sexual harassment, or workplace bullying;
	 
	 	(vii)	 	sick leave; or
	 
	 	(viii)	 	superannuation.





     (e) Except for sick leave and long service leave accruals and for annual
leave entitlements (including any pro-rata entitlements for part years of
employment) as stated in Schedule 4.19(e) of the Disclosure Memorandum with
respect to each of the Transferring Employees, there are no facts which could
result in any Transferring Employee having any valid claim against the Seller,
Softworks, Pennystream, their Affiliates, or the Buyer, whether under law or
any employment agreement or otherwise, on account of or for sick leave, long
service leave accruals, or annual leave entitlements attributable to periods
prior to Closing.



     (f) There is no enterprise agreement or agreement, arrangement or
understanding between the Seller, Softworks, Pennystream, or their Affiliates,
on the one hand, and any trade union or any representatives thereof on the
other, in respect of the Transferring Employees.



     4.20 Softworks Assets



     The Softworks Assets are in good operating condition and repair, normal
wear and tear excepted, and are adequate for the uses to which they are being
put.



     4.21 Trading in Onyx Common Stock



     Since January 1, 2004, except pursuant to this Agreement, neither Seller
nor any of the Stockholders has sold, bought, made any short sale of, loaned,
granted or received any option for the purchase or sale of, or otherwise
acquired or disposed of any securities of Buyer, whether on the Nasdaq National
Market or otherwise.



     4.22 No Other Representations and Warranties



     EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS
AGREEMENT, SELLER DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS
OR IMPLIED, WITH REGARD TO THE ASSETS, INCLUDING WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.




	5.	 	Representations and Warranties of Buyer





     To induce Seller to enter into this Agreement, Buyer represents and
warrants to Seller (which representations and warranties shall survive the
Closing as provided in Section 10) as follows in this Section 5:



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     5.1 Organization; Corporate Power



     Buyer is a corporation duly organized and validly existing under the laws
of the State of Washington.



     5.2 Authority; Authorization; Enforceability



     Buyer has full corporate 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 Buyer of
this Agreement and the Transaction Documents to which it is a party, the
performance by Buyer of its obligations hereunder and thereunder and the
consummation by Buyer 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 Buyer, enforceable against Buyer
in accordance with its terms, and the Transaction Documents to which Buyer is a
party, when executed and delivered by Buyer, will constitute valid and binding
obligations of Buyer, enforceable against Buyer in accordance with their terms.



     5.3 Valid Issuance of Stock



     The shares of Onyx Common Stock to be issued pursuant to Section 3.1 have
been duly authorized for issuance, and when issued, shall be validly issued,
fully paid, nonassessable and free and clear of any Encumbrance except as set
forth in Section 10.6.1. Subject in part to the truth and accuracy of the
representations set forth in Sections 4.14, 4.15 and 4.16 of this Agreement,
the offer, sale and issuance of the shares of Onyx Common Stock as contemplated
by this Agreement are exempt from the registration requirements of any
applicable state and federal securities laws.



     5.4 No Conflicts



     Neither the execution and delivery by Buyer of this Agreement or the
Transaction Documents to which Buyer is a party, the performance by Buyer of
its obligations hereunder or thereunder, nor the consummation of the
transactions contemplated hereby or thereby will (a) violate, conflict with or
result in any breach of any provision of Buyer’s articles of incorporation or
bylaws; or (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 Buyer is party or
by which it is bound; or (c) violate any applicable law, statute, rule,
ordinance or regulation of any Governmental Body.



     5.5 Brokerage



     Buyer has not retained any broker or finder in connection with the
transactions contemplated by this Agreement. Any brokerage or finder’s fee due
to any broker or finder in violation of the foregoing representation shall be
paid by Buyer.



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     5.6 Buyer Information



     Buyer has furnished Seller with true and complete copies of (a) its Annual
Report on Form 10-K for the year ended December 31, 2003 and (b) all of its
Current Reports on Form 8-K filed with the Securities and Exchange Commission
(the “SEC”) after December 31, 2003, if any (collectively, the “Buyer
Information”). As of their respective filing dates, the Buyer Information
complied in all material respects with the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the SEC
promulgated thereunder.



     5.7 Full Disclosure



     To the knowledge of Buyer, none of the information furnished by Buyer to
Seller in connection with this Agreement (including the Buyer Information), at
the date such information was supplied, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not materially misleading.




	6.	 	Deliveries





     6.1 Deliveries by Seller and Softworks



     Seller shall deliver the following documents, agreements and supporting
papers to Buyer at the Closing, and the delivery of each shall be a condition
to Buyer’s performance of its obligations to be performed at the Closing:



     (a) an executed Bill of Sale with respect to the Visuale Assets
substantially in the form attached hereto as Exhibit 6.1(a) (the “Visuale Bill
of Sale”);



     (b) an executed Bill of Sale with respect to the Softworks Assets
substantially in the form attached hereto as Exhibit 6.1(b) (the “Softworks
Bill of Sale”);



     (c) executed assignments covering each of the Patents described in
Schedule 1.23 to the Disclosure Memorandum, in due form for recordation with
the appropriate Governmental Body (the “Assignments of Patents”);



     (d) executed assignments or transfer instructions covering each of the
domain names described in Schedule 1.23 to the Disclosure Memorandum, in due
form for recordation with the appropriate registrar (the “Assignments of Domain
Names”);



     (e) executed assignments covering each of the trademarks described in
Schedule 1.23 to the Disclosure Memorandum, in due form for recordation with
the appropriate Governmental Body (the “Assignments of Trademarks”);



     (f) an executed nonforeign certificate in accordance with Section 1445 of
the Code and the regulations issued thereunder;



     (g) in a form approved by Buyer, an executed Consulting Agreement between
Craig Sproule and Seller confirming and memorializing agreements with respect
to the Visuale Assets;



	 	 	 
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     (h) in a form approved by Buyer, an executed Consulting Agreement between
Softworks and Seller confirming and memorializing agreements with respect to
the Visuale Assets;



     (i) a certificate of the Secretary of Seller in form and substance
reasonably satisfactory to Buyer, as to the authenticity and effectiveness of
the actions of the board of directors and stockholders of Seller authorizing
the transactions contemplated by this Agreement, and as to Seller’s certificate
of incorporation, bylaws and such other documents as are reasonably specified
by Buyer’s counsel;



     (j) a certificate of the Secretary of State of the state of Delaware to
the effect that Seller is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware;



     (k) the investor questionnaire substantially in the form attached hereto
as Exhibit 6.1(k) (the “Investor Questionnaire”), completed and duly executed
by each of the Stockholders;



     (l) the Registration Rights Agreement (the “Registration Rights
Agreement”) in the form attached hereto as Exhibit 6.1(l), duly executed by
Seller;



     (m) the Reseller Agreement (the “Reseller Agreement”) in the form attached
hereto as Exhibit 6.1(m), duly executed by Softworks;



     (n) in a form approved by Buyer, an agreement terminating that certain
Project Agreement dated as of November 20, 2002, by and among Seller, nFormed,
and Softworks (the “nFormed Amendment”), including provisions whereby Buyer
shall have the right to notice and a chance to cure any failure of Seller to
make certain payments thereunder to nFormed (the “nFormed Payments”);



     (o) written letter satisfactory to Buyer from InProcess AS clarifying
certain aspects of certain agreements between InProcess AS and Softworks;



     (p) a complete copy of the object code and source code for the Product as
of the Closing, and the other Assets listed on Exhibit 6.1(p), to be delivered
by electronic delivery; and



     (q) Subject to Section 7.7, all of the materials described in Section 7.7.



     6.2 Deliveries by Buyer



     Buyer shall deliver the following documents, agreements and supporting
papers to Seller at the Closing, and the delivery of each shall be a condition
to Seller’s performance of its obligations to be performed at the Closing:



     (a) an executed irrevocable instruction letter to Buyer’s transfer agent,
Mellon Investor Services, LLC, instructing the transfer agent to issue stock
certificates representing the applicable portion of the Purchase Price;



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     (b) any cash payable under Section 3.1.1 by Buyer company check or wire
transfer of immediately available funds;



     (c) a certificate of the Secretary of State of the State of Washington to
the effect that Buyer is a corporation duly organized and validly existing
under the laws of the State of Washington;



     (d) a certificate of the Secretary of Buyer in form and substance
reasonably satisfactory to Seller, as to the authenticity and effectiveness of
the actions of the board of directors of Buyer authorizing the transactions
contemplated by this Agreement;



     (e) a resale certificate in substantially the form attached hereto as
Exhibit 6.2(e), duly executed by Buyer;



     (f) the Registration Rights Agreement, duly executed by Buyer; and



     (g) the Reseller Agreement, duly executed by Buyer.




	7.	 	Covenants





     7.1 Further Assurances



     After the Closing, Seller, the Stockholders, and Softworks shall from time
to time at Buyer’s request execute and deliver, or cause to be executed and
delivered, such further instruments of conveyance, assignment and transfer or
other documents, and perform such further acts and obtain such further
consents, approvals and authorizations, as Buyer may reasonably require in
order to fully effect the conveyance and transfer to Buyer of, or perfect
Buyer’s right, title and interest in, any of the Assets, to assist Buyer in
obtaining possession of any of the Assets, or to otherwise comply with the
provisions of this Agreement and consummate the transactions contemplated by
this Agreement and the Transaction Documents.



     7.2 Continued Existence



     Except with Buyer’s consent (not to be unreasonably withheld), from the
date hereof and continuing for the duration of the Contingent Payment Term,
Seller will do or cause to be done all things reasonably necessary to preserve,
renew and keep in full force and effect Seller’s legal existence and good
standing in its jurisdiction of formation.



     7.3 Employees



     (a) The Seller, Softworks, Pennystream or their Affiliates, as applicable,
will terminate the employment of each Transferring Employee from employment
with Softworks to take effect at or before Closing. The Seller, Softworks,
Pennystream and their Affiliates, as applicable, hereby irrevocably waive any
right or claim it may have, whether known or unknown, matured or contingent,
and whether based on statute, case law, express or implied agreement, doctrine
of fiduciary or other duties, or otherwise, to prevent any Transferring
Employee from competing with any of Seller, Softworks, Pennystream and/or their
Affiliates.



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION





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     (b) The Seller, Softworks, Pennystream or their Affiliates, as applicable,
will pay to each Transferring Employee the amount of his or her accumulated
wages and salary entitlements (including superannuation contributions) for all
work performed by the Transferring Employees as at Closing and will indemnify
the Buyer and cause Softworks to indemnify the Buyer from and against all
claims made after Closing by any Transferring Employee against the Buyer for
payment of such work performed up to and as at Closing.



     (c) Subject to the Seller’s and Softworks’ warranty in Section 4.19(e),
the Buyer shall be responsible for all claims, costs and expenses, if any,
arising after Closing (including those accruing with respect to periods prior
to Closing) from annual leave, sick leave, and long service leave entitlements
of Transferring Employees.



     7.4 Pennystream Confidentiality Acknowledgement



     Seller and Pennystream hereby acknowledge and agree that under the
Pennystream Assignment, Seller obtained and has all property rights with
respect to the protection of confidentiality or trade secrecy of the “VE
Software” defined in such Pennystream Assignment, and that such VE Software was
intended to be, and has been and continues to be, the confidential information
of Seller and its predecessor in interest under such Pennystream Assignment,
and not of Pennystream.



     7.5 Certain Waivers; Covenant Not to Sue



     With the exception of Softworks’ rights as explicitly provided in the
Reseller Agreement entered at Closing between Buyer and Seller, each of Seller,
the Stockholders, and Softworks, for himself or itself and his or its
Affiliates, successors and assigns, and for the benefit of Buyer, its
Affiliates, successors, assigns and its and their customers in any tier of
distribution, hereby entirely and irrevocably waives and releases any and all
rights he or it may have, whether known or unknown, matured or contingent, to
claim or assert that any Visuale Assets contain, incorporate, or use in any way
any works or other matter or materials in which or to which any of Seller, its
Affiliates, the Stockholders or Softworks has, or (except as to the rights and
properties transferred by Pennystream under the Pennystream Assignment) ever
has had, any right of ownership or right to control, protect, or to exploit or
to claim or assert that Buyer or anyone else requires any right, license or
other permission (whether continuing or newly granted) to practice, exploit, or
otherwise use or benefit from any of the Visuale Assets. Each of Seller, the
Stockholders, and Softworks, for himself or itself and his or its Affiliates,
successors and assigns, and for the benefit of Buyer, its Affiliates,
successors, assigns and its and their customers in any tier of distribution
hereby irrevocably agrees and covenants not to sue or to bring or assert any
claim to the contrary, nor will it assist or purport to authorize others to do
so. Although the parties hereby affirm their understanding and belief that the
Visuale Assets conform to the warranties stated in Sections 4.5, 4.9.1, and
4.9.2, and that, accordingly, no rights or properties need be transferred under
this sentence, the Stockholders and Softworks, for the avoidance of doubt,
hereby assign and transfer to Buyer any and all right, title and interest any
of them may have in and to any and all works, matter or materials to the extent
contained, embodied or incorporated into the Visuale Assets, including without
limitation all Copyrights, Trademarks, Patents and other rights or properties
of whatever nature, worldwide.



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     7.6 Distribution of Onyx Common Stock to Stockholders



     No shares of Onyx Common Stock issued to Seller pursuant to this Agreement
may be transferred or distributed to Stockholders at any time without Buyer’s
prior written consent.



     7.7 Promotional Materials



     Seller hereby authorizes Buyer to use Seller’s promotional materials
relating to the Product, if Buyer so elects, provided Buyer identifies itself
as the vendor of the Product referred to by such materials subsequent to the
date hereof.



     7.8 Post-Closing Cooperation



     After the date hereof, each party shall provide the other parties with
such reasonable assistance (without charge) as may be requested by the other
parties in connection with any Claim or audit of any kind or nature whatsoever
or the preparation of any response, demand, inquiry, filing, disclosure or the
like (including, but not limited to, any tax return or form) relating to the
Assets. Such assistance shall include, but not be limited to, permitting the
party requesting assistance to have reasonable access to the employees, books
and records of the other party related to the Assets.



     7.9 Publicity



     Seller agrees not to make any public announcement in regard to the
transactions contemplated by this Agreement and the Transaction Documents
without Buyer’s prior consent, except as may be required be law, in which case
the parties shall use reasonable efforts to coordinate with each other with
respect to the timing, form and content of such required disclosure. Buyer
agrees that, prior to making any public announcement in regard to the
transactions contemplated by this Agreement and the Transaction Documents, it
will, unless otherwise required by law, provide a draft of the same to Seller,
Softworks and Pennystream and afford Seller, Softworks and Pennystream a
reasonable opportunity to comment thereon.



     7.10 Initial Product Build



     The Parties anticipate that Buyer, with the involvement of the
Transferring Employees, will not require in the aggregate more than three (3)
person-days to perform the initial “build” of the Stand-Alone Product, which
“build” is understood to include, without limitation, the preparation and
documentation, in a supportable format, of such Stand-Alone Product, the
compilation and linking of the Product as appropriate, and the creation of
end-user-format CDs and packaging in shippable form. If such initial build
requires additional time beyond such three person-days, Buyer shall so notify
Seller, and Buyer shall be entitled to reduce the Subsequent Payment by an
amount equal to the value of the additional time so required, measured at
Buyer’s standard hourly fees for the support personnel involved.



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     7.11 Bulk Transfer Laws



     Buyer hereby waives compliance by Seller with any applicable bulk sale or
bulk transfer laws of any jurisdiction in connection with the sale of the
Assets to Buyer (other than any obligations with respect to the application of
the proceeds herefrom).



     7.12 Seller Liabilities and nFormed Payments



     Provided Buyer shall have paid Seller the Subsequent Payment, Seller shall
satisfy and pay all Seller Liabilities and the nFormed Payments when due, but
in any event no later than thirty (30) days after the payment of the Subsequent
Payment, unless, with respect to any Seller Liability or nFormed Payment, such
Seller Liability or nFormed Payment is due at a later time (the “Outside
Payment Date”). Schedule 4.13 to the Disclosure Memorandum sets forth the
approximate payment timing of each of the Seller Liabilities. As to those
Seller Liabilities that are scheduled for payment at generally the same time,
Seller and each Stockholder agree that all Seller Liabilities payable to any
third party at that time shall be paid before any debts, accrued salary,
bonuses or other accounts are paid to any Stockholder or any Affiliate of a
Stockholder. On or before the Outside Payment Date, Seller shall deliver to
Buyer written evidence of the repayment of each Seller Liability and the
nFormed Payments and a release from each applicable creditor of such Seller
Liability and nFormed Payments. In the event that Seller does not deliver such
evidence to Buyer with respect to any Seller Liability, or the nFormed
Payments, Buyer shall have the right, in its sole discretion, to pay such
Seller Liability or nFormed Payments, in which event, Buyer shall have the
right to seek recovery of such amount pursuant to Section 10.2(iii).



     7.13 Physical Delivery of Assets



     No later than three (3) days after the closing, Seller shall deliver to
Buyer (i) two physical copies embodying a complete copy of the object code and
source code for the product as of the Closing (the “Touchstone Copies”) (one of
which shall be retained by Seller and one of which shall be delivered as
provided below), (ii) the Books and Records and (iii) the remainder of the
Visuale Assets in physical form, in each case by placement of the Visuale
Assets with a common carrier for delivery to Buyer and Buyer’s primary place of
business, with title passing within the state of Washington (F.O.B.
Destination).



     7.14 Transactions in Buyer Common Stock



     Between the date of this Agreement and the first anniversary of the
Closing Date, except for sales pursuant to a registration statement
contemplated by the Registration Rights Agreement, neither Seller, nor any
Stockholder shall, without Buyer’s prior written consent, in any manner (a)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of, directly or indirectly, any
shares of Onyx Common Stock or any securities convertible into or exercisable
or exchangeable for Onyx Common Stock (including without limitation, any short
sale) or (b) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
Onyx Common Stock. Notwithstanding the foregoing, any Stockholder who is also
an employee of Buyer may



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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sell any shares of Onyx Common Stock acquired by such Stockholder upon
exercise of stock options granted to such Stockholder by Buyer without any
restriction under this Section 7.14 (subject to the terms of such Stockholder’s
stock option letter agreement and Buyer’s generally applicable insider trading
policies).




	8.	 	Taxes and Costs; Apportionments





     8.1 Transfer Taxes



     Seller and/or Softworks shall be responsible for the payment of all
transfer, conveyance, excise, sales and use and documentary taxes, filing and
recordation fees and similar charges relating to the sale or transfer of the
Assets hereunder other than any such taxes, fees or charges required to be paid
under the laws of the state of Washington, or any subdivision thereof. Buyer
shall be responsible for the payment of all transfer, conveyance, excise, sales
and use and documentary taxes, filing and recordation fees and similar charges
relating to the sale or transfer of the Assets hereunder to the extent that
such taxes, fees or other charges are required to be paid under the laws of the
state of Washington, or any subdivision thereof. Each of Seller, Softworks,
and Buyer agrees to take all actions reasonably requested by any other party to
minimize any sales, use and other transfer taxes and fees incurred in
connection with the assignment, conveyance, transfer and/or delivery of the
Assets hereunder.



     8.2 Transaction Costs



     Each party shall be responsible for its own costs and expenses incurred in
connection with the preparation, negotiation and delivery of this Agreement and
the Transaction Documents, including but not limited to attorneys’ and
accountants’ fees and expenses.



     8.3 Apportionments



     With respect to state and local ad valorem taxes on the Assets (whether
personal or real, owned or leased) for the current Tax year, Seller shall be
responsible for the payment of all such Taxes for the period prior to and
including the Closing and Buyer shall be responsible for all such Taxes for the
period after the Closing. All such Taxes assessed on an annual basis shall be
prorated on the assumption that an equal amount of Tax applies to each day of
the year, regardless of how installment payments are billed or made and any
supplemental property Taxes or assessments which arise out of a revaluation of
an Asset which revaluation would not have occurred except for the change in
ownership of the Asset shall be allocated to periods after the Closing Date and
shall accordingly be borne by Buyer. Any payment of Taxes due from one party
to the other pursuant to the foregoing provisions of this Section 8.3 shall be
paid at the Closing Date, or prior to the date on which the Tax is due taking
into account applicable extensions of time.



     8.4 Cooperation and Records Retention



     Seller and Buyer shall (i) each provide the other with such assistance as
may reasonably be requested by them in connection with the preparation of any
Tax Returns, or in connection with any audit or other examination by any taxing
authority or any judicial or administrative




	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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proceedings relating to liability for Taxes, (ii) each retain and provide
the other, with any records or other information which may be relevant to any
such Tax Return, audit or examination, proceeding or determination, and (iii)
each provide the other with any final determination of any such audit or
examination, proceeding or determination that affects any amount required by be
shown on any Tax Return of the other for any period. Without limiting the
generality of the foregoing, Seller and Buyer shall retain, until the
applicable statute of limitations (including any extensions) have expired,
copies of all Tax Returns, supporting work schedules and other records or
information which may be relevant to such Tax Returns for all tax periods or
portions thereof ending before or including the Closing and shall not destroy
or otherwise dispose of any such records without first providing the other
party with a reasonable opportunity to review and copy the same.



     8.5 Control of Tax Proceedings



     If any claim, suit or proceeding shall be made by any taxing authority
that could give rise to an additional payment of Taxes related to the Assets,
the party responsible for the payment of such taxes shall control all
proceedings arising in connection with such claim suit or proceeding; provided,
however, that consent of the other party shall be required prior to the
settlement of any such claim, suit or proceeding in the event that settlement
of the matter could affect the Tax liability of the other party, which consent
shall not be unreasonably withheld.




	9.	 	Covenants Not to Compete





     9.1 Non-Competition Covenants by Seller, the Stockholders, and Softworks



     During the two-year period commencing on the date hereof, none of Seller,
any Stockholder, nor Softworks, shall engage in any Restricted Activities,
whether directly or indirectly, for its account or otherwise, or as a member,
shareholder, owner, partner, principal, agent, joint venturer, employee,
consultant, advisor, franchisor or franchisee, independent contractor or
otherwise, in, with or of any Person that engages directly or indirectly in any
Restricted Activities.



     9.2 Minor Investments



     Notwithstanding the provisions of Section 9.1 above and the noncompetition
provisions of the Employment Agreements, Seller, Softworks and the Stockholders
may at any time own in the aggregate, directly or indirectly, for investment
purposes only, 1% or less of any class of securities of any entity traded on
any national securities exchange or quoted on the Nasdaq National Market.



     9.3 Multiple Divisions



     Notwithstanding the provisions of Section 9.1 above, nothing herein shall
be construed to prevent Seller, Softworks or any Stockholder from serving as a
member, shareholder, owner, partner, principal, agent, joint venturer,
employee, consultant, advisor, franchisor or franchisee, independent contractor
or otherwise of a business which has multiple divisions, only some of which
engage in Restricted Activities, provided that any activity of Seller,
Softworks or such



	 	 	 
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Stockholder is performed solely for one of the divisions that does not
engage in Restricted Activities.



     9.4 Remedies



     Seller, Softworks, and the Stockholders acknowledge that compliance with
the provisions of this Section 9 is necessary and proper to preserve and
protect the Assets acquired by Buyer under this Agreement and to assure that
the parties receive the benefits intended to be conveyed pursuant to this
Section 9. Seller, Softworks and the Stockholders agree that any failure to
comply with the provisions of this Section 9 shall entitle Buyer, in addition
to such other relief and remedies as may be available, to equitable relief,
including, but not limited to, the remedy of injunction. Resort to any remedy
shall not prevent the concurrent or subsequent employment of any other remedy,
or preclude the recovery by Buyer of monetary damages and compensation.




	10.	 	Survival and Indemnification





     10.1 Survival



     All representations, warranties and indemnities of Seller, the
Stockholders, Softworks, and Buyer contained in this Agreement or in the
Transaction Documents or in any certificate delivered pursuant hereto or
thereto shall survive the Closing for a period of time after the Closing
described in subsections (a)-(d) below (the “Survival Period”), and shall not
be deemed waived or otherwise affected by any investigation made or any
knowledge acquired with respect thereto. The covenants and agreements of
Seller, the Stockholders, Softworks, and Buyer contained in this Agreement or
in the Transaction Documents shall survive the Closing and shall continue until
all obligations with respect thereto shall have been performed or satisfied or
shall have been terminated in accordance with their terms.



     (a) The representations and warranties of Seller, the Stockholders, and
Softworks in Section 4.1 (Organization; Power), Section 4.2 (Authority;
Authorization; Enforceability), and Section 4.9 (Intellectual Property), and
the indemnities of Seller under Section 10.2, and the representations and
warranties of Buyer in Section 5.1 (Organization; Corporate Power) and Section
5.2 (Authority; Authorization; Enforceability), and the indemnities of Buyer
under Section 10.3, shall survive the Closing until ninety (90) days following
the end of the Contingent Payment Term.



     (b) The representations and warranties of Seller, the Stockholders, and
Softworks in Section 4.8 (Taxes) shall survive the Closing for the longer of
(i) three (3) years or (ii) until 30 days after the expiration of the
applicable statute of limitations periods for the matters addressed in such
representation and warranty.



     (c) Any claims based on or arising from fraud shall survive indefinitely.



     (d) All other representations and warranties of Seller, the Stockholders,
Softworks, and Buyer in this Agreement or the Transaction Documents shall
survive the Closing for a period of twenty-four (24) months.



     10.2 Indemnification by Seller, the Stockholders, and Softworks



	 	 	 
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     (i) From and after the Closing, Seller and each Stockholder and Softworks
(jointly and severally) shall indemnify and hold Buyer and its Affiliates
harmless from and against, and shall reimburse Buyer and its Affiliates for,
any and all Losses arising out of or in connection with:



          (a) any inaccuracy in any representation or warranty made by Seller, any
Stockholder, or Softworks in this Agreement or in the Transaction Documents or
in any certificate delivered pursuant hereto or thereto;



          (b) any failure by Seller, any Stockholder, or Softworks to perform or
comply with any covenant or agreement in this Agreement or in the Transaction
Documents;



          (c) any Excluded Liabilities;



          (d) any claim by any person or entity for brokerage or finder’s fees or
commissions; or similar payments based upon any agreement or understanding
alleged to have been made by such person or entity directly or indirectly with
Seller or Softworks or any of their officers, directors or authorized agents in
connection with any of the transactions contemplated by this Agreement or the
Transaction Documents;



          (e) any Claim relating to any business or assets of Seller, Softworks, or
their Affiliates not acquired by Buyer hereunder;



          (f) any claims made by Non-Transferring Employees for:




	 	(i)	 	all wages and salary (including
superannuation contributions);
	 
	 	(ii)	 	all annual leave, leave loading and
long service leave entitlements;
	 
	 	(iii)	 	all payments in lieu of notice,
redundancy and severance payments (howsoever described);
and
	 
	 	(iv)	 	any other claims, arising out of
their employment with the Seller, Softworks, Pennystream
or their Affiliates or the termination of their
employment, whether under any agreement, statute,
industrial award or in any other way; and





          (g) any workers’ compensation claim lodged by any Employee, whether lodged
prior or subsequent to Closing, where, and to the extent that, such claim is
founded upon an event or circumstance alleged to have occurred before Closing.



     (ii) (a) Notwithstanding anything to the contrary contained in this
Agreement, other than with respect to claims based on or arising from fraud:
(1) Seller, the Stockholders, Softworks shall have no liability for
indemnification for Claims made solely under clauses 10.2(i)(a) or 10.2(i)(b)
(and not in whole or in part under any of clauses 10.2(i)(c) – (g)) in an
amount in excess of $4,000,000; and (2) the right to set-off against the
Subsequent Payment and Contingent Payments pursuant to Section 10.6, the right
to cancel Indemnification Shares pursuant to Section 10.7 and the remedy of
specific performance provided in Sections 9.4 and



	 	 	 
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10.10 shall be the sole and exclusive rights and remedies of Buyer and its
Affiliates for any Losses arising out of any and all claims for indemnification
made solely under Section 10.2(i)(a) or (b) (and not in whole or in part under
any of clauses 10.2(i)(c) – (g)); and



          (b) No Losses otherwise payable under Sections 10.2(i)(a) and (b) and
arising solely out of or solely resulting from the causes enumerated in
Sections 10.2(i)(a) and (b) shall be payable until such time as all such Losses
shall aggregate to more than $15,000, after which time Seller, the Stockholders
and Softworks shall be liable in full for all indemnifiable Losses (including
the first $15,000).



     (iii) In the event that Buyer satisfies any Seller Liability or nFormed
Payment on behalf of Seller under Section 7.12, or as a result of the
application of any bulk sales law in connection with the sale of the Assets to
Buyer, Seller shall pay to Buyer, in addition to any indemnification under
Section 10.2(i)(c) otherwise available to Buyer for satisfaction of such Seller
Liability or nFormed Payment, as liquidated damages and not as a penalty, an
amount equal to [*] the amount of such Seller Liability or nFormed Payment paid
by Buyer; provided, however, that in the event that Buyer satisfies an nFormed
Payment and, at the time of such satisfaction, the registration statement to be
filed pursuant to the Registration Rights Agreement relating to the resale of
shares of Onyx Common Stock issued hereunder has not been effective for at
least ten (10) trading days prior to such satisfaction, Seller shall have no
obligation to pay any liquidated damages under this Section 10.2(iii) in
respect of such nFormed Payment. Any such liquidated damages shall constitute
Losses and may be recovered by Buyer through the procedures set forth in
Sections 10.5, 10.6 and 10.7. The parties acknowledge and agree that the
damages suffered by Buyer in the event that it satisfies any Seller Liability
or nFormed Payment on behalf of Seller are difficult to determine and that the
parties have set the liquidated damages to be an amount that they believe
reasonably estimates such damages.



     10.3 Indemnification by Buyer



     (i) From and after the date hereof, Buyer shall indemnify and hold
harmless Seller, its Affiliates, and the Stockholders from and against, and
shall reimburse Seller, its Affiliates, and the Stockholders for, any and all
Losses arising out of or in connection with:



          (a) any inaccuracy in any representation or warranty made by Buyer in this
Agreement or in the Transaction Documents or in any certificate delivered
pursuant hereto or thereto;



          (b) any failure by Buyer to perform or comply with any covenant or
agreement in this Agreement or the Transaction Documents; and



          (c) any claim by any person or entity for brokerage or finder’s fees or
commissions; or similar payments based upon any agreement or understanding
alleged to have been made by such person or entity directly or indirectly with
Buyer or any of its officers, directors or authorized agents in connection with
any of the transactions contemplated by this Agreement or the Transaction
Documents.



*Confidential Treatment Requested




	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     (ii) (a) Notwithstanding anything to the contrary contained in this
Agreement, other than with respect to claims based on or arising from fraud, no
payment with respect to any Losses otherwise payable under Sections 10.3(i)(a)
and (b) and arising solely out of or solely resulting from the causes
enumerated in Section 10.3(i)(a) and (b) shall be payable until such time as
all such Losses shall aggregate to more than $15,000, after which time Buyer
shall be liable in full for all indemnifiable Losses (including the first
$15,000).



          (b) Notwithstanding anything to the contrary contained in this Agreement,
other than with respect to claims based on or arising from fraud: (1) Buyer
and its Affiliates shall have no liability for indemnification for Claims made
solely under clauses 10.3(i)(a) or 10.3(i)(b) (and not in whole or in part
under clause 10.3(i)(c)) in an amount in excess of $4,000,000; and (2) the
right of indemnification under Section 10.3 and the remedy of specific
performance provided in Section 10.10 shall be the sole and exclusive rights
and remedies of Buyer and its Affiliates for any Losses arising out of any and
all claims for indemnification made solely under Section 10.3(i)(a) or (b) (and
not in whole or in part under clause 10.2(i)(c)).



     10.4 Time Limitations



     No party or its Affiliates shall be entitled to assert any right of
indemnification with respect to any claim for indemnification made under
Section 10.2 or 10.3, as the case may be (a “Indemnification Claim”), of which
neither such party or its Affiliates have given written notice to the other
party on or prior to the end of the applicable Survival Period (if any) set
forth in Section 10.1 above, except that if such party or its Affiliates have
given written notice of any Indemnification Claim to the other party on or
prior to the end of such Survival Period, then they shall continue to have the
right to be indemnified with respect to such pending Indemnification Claim,
notwithstanding the expiration of such Survival Period.



     10.5 Procedure for Indemnification



     (a) Any party hereto or any of its Affiliates seeking indemnification
hereunder (in this context, the “Indemnified Party”) shall give written notice
(the “Claim Notice”) of any claim for indemnification under this Section 10 to
the other party (with the Stockholder Representative (as defined below) acting
on behalf of, and receiving all notices on behalf of, Seller, the Stockholders
and Softworks for purposes of this Section 10.5) (the “Indemnifying Party”) as
promptly as practicable, but in any event: (i) if such Indemnification Claim
relates to the assertion against an Indemnified Party of any claim by a third
party (a “Third-Party Claim”), within 30 days after the assertion of such
Third-Party Claim, or (ii) if such Indemnification Claim is not in respect of a
Third-Party Claim, within 30 days after the discovery of facts upon which the
Indemnified Party intends to base an Indemnification Claim for indemnification
pursuant to Section 10 hereof; provided, however, that the failure or delay to
so notify the Indemnifying Party shall not relieve the Indemnifying Party of
any obligation or liability that the Indemnifying Party may have to the
Indemnified Party except to the extent that the Indemnifying Party demonstrates
that the Indemnifying Party’s ability to defend or resolve such Indemnification
Claim is actually prejudiced thereby. Any such Claim Notice shall describe the
facts and circumstances on which the asserted Indemnification Claim is based,
the amount thereof, if then ascertainable, and, if not then ascertainable, the
estimated maximum amount thereof, and the provisions in the Agreement on which
the Indemnification Claim is based.




	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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     (b) (i) Subject to the rights of or duties to any insurer or other third
party having potential liability therefor, the Indemnifying Party shall have
the right, upon written notice given to the Indemnified Party within 30 days
after receipt of the Claim Notice from the Indemnified Party of any Third-Party
Claim, to assume the defense or handling of such Third-Party Claim, at the
Indemnifying Party’s sole expense, in which case the provisions of Section
10.5(b)(ii) hereof shall govern.



          (ii) The Indemnifying Party shall select counsel reasonably acceptable to
the Indemnified Party in connection with conducting the defense or handling of
such Third-Party Claim, and the Indemnifying Party shall defend or handle the
same in consultation with the Indemnified Party and shall keep the Indemnified
Party timely apprised of the status of such Third-Party Claim. The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party (not to be unreasonably withheld), agree to a settlement of
any Third-Party Claim, unless (A) the settlement provides an unconditional
release and discharge of the Indemnified Party and the Indemnified Party is
reasonably satisfied with such discharge and release and (B) the Indemnified
Party shall not have reasonably objected to any such settlement on the ground
that the circumstances surrounding the settlement could result in a material
and adverse impact on the business, operations, assets, liabilities (absolute,
accrued, contingent or otherwise), condition (financial or otherwise) or
prospects of the Indemnified Party. The Indemnified Party shall cooperate with
the Indemnifying Party and shall be entitled to participate in the defense or
handling of such Third-Party Claim with its own counsel and at its own expense.



     (c) (i) If the Indemnifying Party does not give written notice to the
Indemnified Party within 30 days after receipt of the notice from the
Indemnified Party of any Third-Party Claim of the Indemnifying Party’s election
to assume the defense or handling of such Third-Party Claim, the provisions of
Section 10.5(c)(ii) hereof shall govern.



          (i) The Indemnified Party may select counsel in connection with conducting
the defense or handling of such Third-Party Claim and defend or handle such
Third-Party Claim in such manner as it may deem appropriate; provided, however,
that the Indemnified Party shall keep the Indemnifying Party timely apprised of
the status of such Third-Party Claim and shall not settle such Third-Party
Claim without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld. If the Indemnified Party defends
or handles such Third-Party Claim, the Indemnifying Party shall cooperate with
the Indemnified Party and shall be entitled to participate in the defense or
handling of such Third-Party Claim with its own counsel and at its own expense.



     (d) An Indemnified Party shall take all reasonable steps to mitigate all
Losses upon and after becoming aware of any event that could reasonably be
expected to give rise to any Losses.



     10.6 Set-Off



     The procedure for set-off against the Subsequent Payment or Contingent
Payments in satisfaction of Indemnification Claims shall be as follows:



	 	 	 
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     (a) From time to time as Buyer determines that it or its Affiliate is
entitled to a set-off payment from the Subsequent Payment or Contingent
Payments for an Indemnification Claim under this Section 10, Buyer shall give a
Claim Notice in accordance with Section 10.5 and a statement of the amounts (i)
to be set-off by Buyer from the Subsequent Payment or Contingent Payments and
(ii) to be held in reserve by Buyer pending the resolution of an asserted but
then unresolved Third Party Claim.



     (b) After the resolution of any Third Party Claim for which a portion of
the Subsequent Payment or Contingent Payments was reserved pursuant to Section
10.6(a)(ii), Buyer shall give an additional Claim Notice in accordance with
Section 10.5 and the amount properly to be set-off, if any, shall be so set-off
from the Subsequent Payment or Contingent Payments. The portion, if any, of
such reserved amounts remaining after such set-off shall be promptly paid to
Seller if then due as part of the Subsequent Payment or Contingent Payments, or
if not then so due, shall be paid when due pursuant to Section 3.



     10.7 Right to Cancel Shares



     The procedure for cancellation of Indemnification Shares in satisfaction
of Indemnification Claims shall be as follows:



     (a) From time to time as Buyer determines that it or its Affiliate is
entitled to cancel shares of Onyx Common Stock issued as part of the Initial
Stock Portion or the Subsequent Stock Portion and then held by the Seller or
its Affiliates for an Indemnification Claim under this Section 10, Buyer shall
give a Claim Notice in accordance with Section 10.5 and a statement of the
number of Indemnification Shares (i) to be transferred to and cancelled by
Buyer and (ii) to be transferred to Buyer and held in reserve by Buyer pending
the resolution of an asserted but then unresolved Third Party Claim.



     10.8 Payment by Set-Off or Cancellation of Indemnification Shares



     (a) If Buyer has not received from the Indemnifying Party (whether Seller,
its Affiliates or the Stockholders) within 30 days after receipt of the Claim
Notice to which it relates (the “Response Period”) a written objection to an
Indemnification Claim stating the facts and circumstances on which the
objection is based, the Indemnification Claim stated in such Claim Notice shall
be conclusively deemed to be approved by Seller, its Affiliates and the
Stockholders and Seller shall promptly thereafter transfer to the Buyer or its
Affiliate, as the case may be, (i) from the Indemnification Shares or (ii)
pursuant to Section 10.6 an amount equal in value to the amount of such
Indemnification Claim; provided, however, that at the election of Seller the
Indemnification Claim may be paid in cash, in whole or in part. If Buyer
elects to receive payment via transfer of Indemnification Shares, the number of
Indemnification Shares to be transferred shall be determined by dividing the
amount of the Indemnification Claim by the Fair Market Value as of the date on
which such Indemnification Shares were first issued and shall be rounded to the
nearest whole share, with .5 being rounded up.



     (b) If, within the Response Period, Buyer shall have received from Seller,
its Affiliates or the Stockholders a written objection to the Claim Notice
specifying the nature of and grounds for such objection, then such
Indemnification Claim shall be deemed to be a “Buyer




	 	 	 
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Open Claim,” and, if Seller holds any Indemnification Shares, Seller
shall retain and preserve a number of Indemnification Shares equal in value to
the amount of such Buyer Open Claim (which amount designated for each Buyer
Open Claim is referred to herein as the “Claim Reserve Amount”). The number of
Indemnification Shares to be retained and preserved shall be determined by
dividing the amount of the Buyer Open Claim by the Fair Market Value as of the
date on which such Indemnification Shares were first issues and shall be
rounded to the nearest whole share, with .5 being rounded up.



     (c) The Claim Reserve Amount for each Buyer Open Claim shall be paid to
Buyer or its Affiliate, as the case may be, (i) from the Indemnification Shares
or (ii) pursuant to Buyer’s right to set-off payment only in accordance with
either (x) a mutual agreement between Buyer and Seller (on behalf of itself,
its Affiliates and the Stockholders), which shall be memorialized in writing,
or (y) a court order from any competent court having jurisdiction over the
parties or a final and binding arbitration decision pertaining to the Buyer
Open Claim.



     (d) When a final determination is made with respect to any Buyer Open
Claim, if indemnification is made by cancellation of Indemnification Shares,
the number of Indemnification Shares transferable to Buyer or its Affiliate
shall be transferred to Buyer or its Affiliate, as the case may be, from the
Claim Reserve Amount for such Buyer Open Claim. The Indemnification Shares
included in such Claim Reserve Amount remaining after such transfer, and any
remaining Indemnification Shares not subject to a Buyer Open Claim, shall be
released to Seller free of any restrictions under this Section 10.



     10.9 Stop Transfer Order



     Each of the Seller and each Stockholder acknowledges and agrees that any
Indemnification Shares comprising a Claim Reserve Amount shall be subject to a
stop transfer order imposed by Buyer during the period of the applicable Buyer
Open Claim.



     10.10 Election of Remedies



     In the event that any party or any of its Affiliates alleges that it is
entitled to indemnification hereunder, and that its Indemnification Claim is
covered under more than one provision of this Section 10, such party or
Affiliate shall be entitled to elect the provision or provisions under which it
may bring an Indemnification Claim; provided, however, that Buyer shall
exercise its rights to set-off under Section 10.6 as to the Subsequent Payment
and any Contingent Payments to be made no later than 30 days after such
Indemnification Claim, prior to exercising its right to cancel Indemnification
Shares pursuant to Section 10.7.



     10.11 Specific Performance



     The parties to this Agreement acknowledge that it may be impossible to
measure in money the damages that a party would incur if any covenant or
agreement contained in this Agreement were not performed in accordance with its
terms and agree that each of the parties hereto shall be entitled to obtain an
injunction to require specific performance of, and prevent any violation of the
terms of, this Agreement, in addition to any other remedy available hereunder.
In any such action specifically to enforce any provision of this Agreement,
each



	 	 	 
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	 	ONYX SOFTWARE CORPORATION






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party hereby waives any claim or defense therein that an adequate remedy
at law or in damages exists.



     10.12 Stockholder Representative



     (a) Each Stockholder and Softworks hereby irrevocably authorizes and
appoints Seller (the “Stockholder Representative”), with full power of
substitution and resubstitution, as his, her or its representative and true and
lawful attorney-in-fact and agent to act in his, her or its name, place and
stead as contemplated by this Article 10 and to execute in the name and on
behalf of such Person any agreement, certificate, instrument or document to be
delivered by such Person in connection with this Article 10.



     (b) Upon any dissolution of Seller in accordance with Section 7.2, Seller
shall appoint a new Stockholder Representative to replace Seller with the same
powers and duties as Seller as the Stockholder Representative, provided that
such newly appointed Stockholder Representative shall be subject to the
reasonable approval of Buyer.



     (c) Any Stockholder Representative appointed pursuant to Section 10.11(b)
or this Section 10.11(c) may resign at any time. Upon such resignation, the
Stockholder Representative shall appoint a new Stockholder Representative to
replace such resigning Stockholder Representative with the same powers and
duties as such resigning Stockholder Representative, provided that such newly
appointed Stockholder Representative shall be subject to the reasonable
approval of Buyer.



     (d) If the Stockholder Representative or any successor shall die, or
become unable to act as the Stockholder Representative, a replacement shall
promptly be appointed by a writing signed by Stockholders who, as of the date
hereof, hold a majority in interest in Seller, provided that such newly
appointed Stockholder Representative shall be subject to the reasonable
approval of Buyer.




	11.	 	Miscellaneous





     11.1 Confidentiality Obligations of Seller and the Stockholders and
Softworks Following the Closing



     From and after the Closing, Seller, the Stockholders and Softworks shall
keep confidential and not use or disclose to any party any confidential
information relating to the assets, business or affairs of Buyer or the Assets.
The confidentiality and non-use obligations set forth in this Section 11.1
shall not apply to any information that is available to the public through no
breach of this Agreement by Seller, the Stockholders, or Softworks, or is
disclosed to Seller, the Stockholders or Softworks by third parties who are not
under any duty of confidentiality with respect thereto, or is required to be
disclosed by Seller, the Stockholders, or Softworks in connection with pending
litigation or investigation; provided, however, that in the event Seller any
Stockholder or Softworks becomes required in connection with pending litigation
or investigation to disclose any of the confidential information relating to
the assets, business or affairs of Buyer or the Assets, then Seller, the
Stockholder(s), or Softworks, as applicable, shall provide Buyer with
reasonable notice so that Buyer may seek a court order protecting against or

 

	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION





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limiting such disclosure or any other appropriate remedy. In the event
such protective order or other remedy is not sought, or is sought but not
obtained, Seller, the Stockholder(s), or Softworks, as applicable, shall
furnish only that portion of the information that is required and shall
endeavor, at Buyer’s expense, to obtain a protective order or other assurance
that the portion of the information furnished by Seller, the Stockholder(s) or
Softworks will be accorded confidential treatment.



     11.2 Severability



     If any court determines that any part or provision of this Agreement is
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby and shall be given full force and effect and remain binding upon the
parties. Furthermore the court shall have the power to replace the invalid or
unenforceable part or provision with a provision that accomplishes, to the
extent possible, the original business purpose of such part or provision in a
valid and enforceable manner. Such replacement shall apply only with respect
to the particular jurisdiction in which the adjudication is made. Without in
any way limiting the generality of the foregoing, it is understood and agreed
that this Section 11.2 shall apply to the provisions of Section 9 and that the
provisions of Section 9, as they relate to each jurisdiction within their
geographical scope, constitute separate and distinct covenants.



     11.3 Modification and Waiver



     This Agreement may not be amended or modified in any manner, except by an
instrument in writing signed by each of the parties hereto. The failure of any
party to enforce at any time any of the provisions of this Agreement shall in
no way be construed to be a waiver of any such provision, or in any way affect
the right of such party thereafter to enforce each and every such provision.
No waiver of any breach of this Agreement shall be deemed to be a waiver of any
other or subsequent breach.



     11.4 Notices



     All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be sent by facsimile
transmission, or mailed postage prepaid by first-class certified or registered
mail, or mailed by a nationally recognized express courier service, or
hand-delivered, addressed as follows:



	 	 	 
	if to Buyer:
	

	 	Onyx Software Corporation
	

	 	1100 112th Avenue N.E., Suite 100
	

	 	Bellevue, Washington 98004-4504
	

	 	Attention: Chief Legal Officer







	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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	with a copy (not constituting notice) to:
	 
	 	 
	

	 	Orrick, Herrington & Sutcliffe LLP
	

	 	719 2nd Avenue, Suite 900
	

	 	Seattle, WA 98104
	

	 	Attention: Alan C. Smith
	 
	 	 
	if to Seller:
	

	 	Visuale, Inc.
	

	 	c/o Scott Broomfield
	

	 	19580 Montevina Rd
	

	 	Los Gatos, CA 95033
	 
	 	 
	with a copy (not constituting notice) to:
	 
	 	 
	

	 	Gunderson Dettmer Stough Villeneuve
	

	 	Franklin & Hachigian, LLP
	

	 	155 Constitution Drive
	

	 	Menlo Park, CA 94025
	

	 	Attention: Christopher D. Dillon
	

	 	                   David W. Van Horne, Jr.
	 
	 	 
	if to Softworks:
	

	 	c/o Kim Riley
	

	 	129 Roghan Road
	

	 	Taigum
	

	 	Queensland, Australia 4018
	 
	 	 
	

	 	Attention: Kim Riley
	 
	 	 
	if to Pennystream:
	 
	 	 
	

	 	c/o Kim Riley
	

	 	129 Roghan Road
	

	 	Taigum
	

	 	Queensland, Australia 4018
	

	 	Attention: Kim Riley
	 
	 	 
	if to Scott Broomfield:
	 
	 	 
	

	 	Scott Broomfield
	

	 	19580 Montevina Rd
	

	 	Los Gatos, CA 95033
	 
	 	 
	if to Craig Sproule:
	 
	 	 
	

	 	Craig Sproule
	

	 	67 Boundary Road
	

	 	Thornlands QLD 4164 Australia
	 
	 	 







	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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	if to Kim Riley:
	

	 	129 Roghan Road
	

	 	Taigum
	

	 	Queensland, Australia 4018







     Any party may change the persons or addresses to which any notices or
other communications to it should be addressed by notifying the other parties
as provided above. Any notice or other communication, if addressed and sent,
mailed or delivered as provided above, shall be deemed given or received three
days after the date of mailing as indicated on the certified or registered mail
receipt, or on the next business day if mailed by express courier service, or
on the date of delivery or transmission if hand-delivered or sent by facsimile
transmission.



     11.5 Assignment



     None of the parties may assign any of its rights or obligations hereunder
without the prior written consent of the other parties. Notwithstanding the
foregoing, Buyer may assign its rights and obligations under this Agreement to
any Affiliate of Buyer; provided, however, that any such assignment by Buyer
shall not relieve Buyer from its obligations hereunder. Furthermore, Buyer may
assign its rights and obligations hereunder to any successor of Buyer that
acquires the Product after the Closing; provided, however, that any such
assignment by Buyer shall not relieve Buyer from its obligations hereunder.
This Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and assigns.



     11.6 Captions



     The captions and headings used in this Agreement have been inserted for
convenience of reference only and shall not be considered part of this
Agreement or be used in the interpretation thereof.



     11.7 Entire Agreement



     This Agreement and the documents referred to herein constitute the entire
agreement and understanding between the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings,
negotiations, representations and statements, whether oral, written, implied or
expressed, relating to such subject matter.



     11.8 No Third-Party Rights



     Nothing in this Agreement is intended, nor shall be construed, to confer
upon any person or entity other than the parties hereto (and only to the extent
expressly provided herein, their respective Affiliates) any right or remedy
under or by reason of this Agreement.



     11.9 Counterparts



     This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall constitute one
agreement.



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     11.10 Governing Law



     This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Washington, as though made and to be fully performed in
that State. In any action between the parties arising out of or relating to
this Agreement or any of the transactions contemplated by this Agreement: (a)
each of the parties irrevocably and unconditionally consents and submits to the
exclusive jurisdiction and venue of the state and federal courts located in the
King County, Washington; (b) if any such action is commenced in a state court,
then, subject to applicable law, no party shall object to the removal of such
action to any federal court located in King County, Washington; (c) each of the
parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such
party is to receive notice in accordance with Section 11.4.



     11.11 Waiver of Conflicts



     Each party to this Agreement acknowledges that Orrick, Herrington &
Sutcliffe LLP, counsel for Buyer, has in the past performed legal services for
Seller and certain of the Stockholders in matters unrelated to the transactions
described in this Agreement. Accordingly, each party to this Agreement hereby
(a) acknowledges that it has had an opportunity to ask for information relevant
to this disclosure and (b) gives its informed consent to Orrick, Herrington &
Sutcliffe LLP’s representation of Buyer in connection with this Agreement and
the transactions contemplated hereby.



	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective representatives hereunto authorized as of the day
and year first above written.



	 	 	 	 	 
	 	 	VISUALE, INC.
	 
	 	 	 	 
	

	 	By
	 	/s/ Scott Broomfield
	

	 	 	 	
 
	

	 	 	 	Scott Broomfield, CEO
	 
	 	 	 	 
	 	 	ONYX SOFTWARE CORPORATION
	 
	 	 	 	 
	

	 	By
	 	/s/ Brent Frei
	

	 	 	 	
 
	

	 	Name
	 	Brent Frei
	

	 	Title
	 	Chief Executive Officer
	 
	 	 	 	 
	 	 	SOFTWORKS AUSTRALIA PTY LTD.
	 
	 	 	 	 
	

	 	By
	 	/s/ Craig Sproule
	

	 	 	 	
 
	

	 	Name
	 	Craig Sproule
	

	 	Title
	 	Chief Executive Officer
	 
	 	 	 	 
	 	 	STOCKHOLDERS:
	 
	 	 	 	 
	 	 	/s/ Scott Broomfield
	 	 	
 
	 	 	Scott Broomfield
	 
	 	 	 	 
	 	 	/s/ Craig Sproule
	 	 	
 
	 	 	Craig Sproule
	 
	 	 	 	 
	 	 	/s/ Kim Riley
	 	 	
 
	 	 	Kim Riley







	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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	 	 	PENNYSTREAM VENTURES, LLC
	 
	 	 	 	 
	

	 	By
	 	/s/ Kim Riley
	

	 	 	 	
 
	

	 	Name
	 	Kim Riley
	

	 	Title
	 	Manager







	 	 	 
	ASSET PURCHASE AGREEMENT

	 	ONYX SOFTWARE CORPORATION






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