**Exhibit 10(q)**

EXECUTION COPY

** **

**ASSETPURCHASE AGREEMENT**

between

**DATATRANSMISSION NETWORK CORPORATION**

**and**

**SURFACESYSTEMS, INC.**

 

Dated as of June30, 2006

 

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TABLE OF CONTENTS
|               | ** ** | ** **                                                 | ** ** | **Page** |
|---------------|------------|------------------------------------------------------------|------------|----------|
|          |       |                                                       |       |     |
|          |       | ARTICLE I                                                  |       |     |
|          |       |                                                       |       |     |
|          |       | CONSTRUCTION                                               |       |     |
|          |       |                                                       |       |     |
| Section 1.01. |       | Construction and Interpretation                            |       | 1        |
|          |       |                                                       |       |     |
|          |       | ARTICLE II                                                 |       |     |
|          |       |                                                       |       |     |
|          |       | TRANSFER OF  ASSETS AND RIGHTS                             |       |     |
|          |       |                                                       |       |     |
| Section 2.01. |       | Purchase and Sale of Assets                                |       | 1        |
| Section 2.02. |       | Excluded Assets                                            |       | 3        |
| Section 2.03. |       | Assumed Forward Looking Obligations; Excluded  Liabilities |       | 4        |
| Section 2.04. |       | Purchase Price                                             |       | 4        |
| Section 2.05. |       | Closing                                                    |       | 4        |
| Section 2.06. |       | Payment of Purchase Price                                  |       | 4        |
| Section 2.07. |       | Purchase Price Adjustment                                  |       | 5        |
| Section 2.08. |       | Allocation of Purchase Price                               |       | 6        |
|          |       |                                                       |       |     |
|          |       | ARTICLE III                                                |       |     |
|          |       |                                                       |       |     |
|          |       | REPRESENTATIONS  AND WARRANTIES OF SELLER                  |       |     |
|          |       |                                                       |       |     |
| Section 3.01. |       | Organization                                               |       | 6        |
| Section 3.02. |       | Authorization                                              |       | 6        |
| Section 3.03. |       | Noncontravention                                           |       | 7        |
| Section 3.04. |       | Litigation                                                 |       | 7        |
| Section 3.05. |       | Assumed Agreements                                         |       | 7        |
| Section 3.06. |       | Customers                                                  |       | 8        |
| Section 3.07. |       | Hardware and Other Equipment                               |       | 9        |
| Section 3.08. |       | Software, Licenses and Data Bases                          |       | 9        |
| Section 3.09. |       | Intellectual Property                                      |       | 10       |
| Section 3.10. |       | Supplies                                                   |       | 11       |
| Section 3.11. |       | St. Louis Facility                                         |       | 11       |
| Section 3.12. |       | Compliance With Laws                                       |       | 11       |
| Section 3.13. |       | Tax Matters                                                |       | 11       |
| Section 3.14. |       | Financial Statements                                       |       | 11       |
| Section 3.15. |       | Absence of Specified Changes                               |       | 12       |
| Section 3.16. |       | Title                                                      |       | 13       |
| Section 3.17. |       | Licenses and Permits                                       |       | 13       |
| Section 3.18. |       | Consents and Approvals                                     |       | 14       |
| Section 3.19. |       | Broker or Finders’ Fees                               |       | 14       |
| Section 3.20. |       | Employees; Compensation; Labor                             |       | 14       |
| Section 3.21. |       | Employee Benefit Plans                                     |       | 15       |

 

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| Section 3.22. |   | Insurance                                |   | 15     |
|---------------|--------|------------------------------------------|--------|--------|
| Section 3.23. |   | Fair Value                               |   | 15     |
| Section 3.24. |   | Solvency                                 |   | 15     |
| Section 3.25. |   | Disclosure                               |   | 16     |
|          |   |                                     |   |   |
|          |   | ARTICLE IV                               |   |   |
|          |   |                                     |   |   |
|          |   | REPRESENTATIONS  AND WARRANTIES OF BUYER |   |   |
|          |   |                                     |   |   |
| Section 4.01. |   | Organization                             |   | 17     |
| Section 4.02. |   | Authorization                            |   | 17     |
| Section 4.03. |   | Noncontravention                         |   | 17     |
| Section 4.04. |   | Litigation                               |   | 17     |
| Section 4.05. |   | Broker or Finders’ Fees             |   | 17     |
|          |   |                                     |   |   |
|          |   | ARTICLE V                                |   |   |
|          |   |                                     |   |   |
|          |   | ADDITIONAL  AGREEMENTS                   |   |   |
|          |   |                                     |   |   |
| Section 5.01. |   | Conduct of Business                      |   | 17     |
| Section 5.02. |   | Employee Leasing Agreement               |   | 18     |
| Section 5.03. |   | Product Marketing Agreement              |   | 18     |
| Section 5.04. |   | Subcontract                              |   | 18     |
| Section 5.05. |   | Public Announcements                     |   | 18     |
| Section 5.06. |   | No Solicitation                          |   | 19     |
| Section 5.07. |   | Representations and Warranties           |   | 19     |
| Section 5.08. |   | Disclosure Schedules                     |   | 19     |
| Section 5.09. |   | Due Diligence                            |   | 20     |
|          |   |                                     |   |   |
|          |   | ARTICLE VI                               |   |   |
|          |   |                                     |   |   |
|          |   | POST-CLOSING  COVENANTS                  |   |   |
|          |   |                                     |   |   |
| Section 6.01. |   | Further Action                           |   | 20     |
| Section 6.02. |   | Consents and Authorizations              |   | 20     |
| Section 6.03. |   | Litigation Support                       |   | 20     |
| Section 6.04. |   | Transition                               |   | 21     |
| Section 6.05. |   | Confidentiality                          |   | 20     |
| Section 6.06. |   | Noncompetition/Nonsolicitation Agreement |   | 22     |
| Section 6.07. |   | Access to Records After the Closing      |   | 22     |
| Section 6.08. |   | RWIS Data Access                         |   | 23     |
|          |   |                                     |   |   |
|          |   | ARTICLE VII                              |   |   |
|          |   |                                     |   |   |
|          |   | CONDITIONS TO  CLOSING                   |   |   |
|          |   |                                     |   |   |
| Section 7.01. |   | Conditions to Obligation of Buyer        |   | 23     |

 

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| Section 7.02.  |   | Conditions to Obligation of Seller          |   | 25     |
|----------------|--------|---------------------------------------------|--------|--------|
|           |   |                                        |   |   |
|           |   | ARTICLE VIII                                |   |   |
|           |   |                                        |   |   |
|           |   | SURVIVAL AND  INDEMNIFICATION               |   |   |
|           |   |                                        |   |   |
| Section 8.01.  |   | Survival                                    |   | 26     |
| Section 8.02.  |   | Indemnification                             |   | 27     |
| Section 8.03.  |   | Time Limitation on Indemnification          |   | 28     |
| Section 8.04.  |   | Third Party Claims, Etc                     |   | 28     |
| Section 8.05.  |   | Certain Other Indemnity Matters             |   | 28     |
|           |   |                                        |   |   |
|           |   | ARTICLE IX                                  |   |   |
|           |   |                                        |   |   |
|           |   | TERMINATION                                 |   |   |
|           |   |                                        |   |   |
| Section 9.01.  |   | Termination Events                          |   | 29     |
| Section 9.02.  |   | Effect of Termination                       |   | 30     |
|           |   |                                        |   |   |
|           |   | ARTICLE X                                   |   |   |
|           |   |                                        |   |   |
|           |   | MISCELLANEOUS                               |   |   |
|           |   |                                        |   |   |
| Section 10.01. |   | Notices                                     |   | 30     |
| Section 10.02. |   | Amendments and Waivers                      |   | 31     |
| Section 10.03. |   | Expenses                                    |   | 31     |
| Section 10.04. |   | Successors and Assigns; Assignment          |   | 31     |
| Section 10.05. |   | Governing Law                               |   | 31     |
| Section 10.06. |   | Counterparts; Effectiveness                 |   | 31     |
| Section 10.07. |   | Entire Agreement; Third Party Beneficiaries |   | 32     |
| Section 10.08. |   | Severability                                |   | 32     |
|           |   |                                        |   |   |
|           |   | ARTICLE XI                                  |   |   |
|           |   |                                        |   |   |
|           |   | DEFINITIONS                                 |   |   |
|           |   |                                        |   |   |
| Section 11.01. |   | Definitions                                 |   | 32     |

 

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| Exhibit  A:       |   | Employee Leasing Agreement                        |   |   |
|-------------------|--------|---------------------------------------------------|--------|--------|
| Exhibit B:        |   | Product Marketing Agreement                       |   |   |
| Exhibit C:        |   | Form of Subcontract                               |   |   |
| Exhibit D:        |   | Opinion of Seller’s Counsel                  |   |   |
| Exhibit E:        |   | Bill of Sale, Assignment and Assumption Agreement |   |   |
|              |   |                                              |   |   |
| Schedule 2.01(a): |   | Customer Contracts and Customers                  |   |   |
| Schedule 2.01(b): |   | Software and Licenses                             |   |   |
| Schedule 2.01(c): |   | Data Bases                                        |   |   |
| Schedule 2.01(d): |   | IP Rights                                         |   |   |
| Schedule 2.01(e): |   | Hardware                                          |   |   |
| Schedule 2.01(f): |   | Other Equipment                                   |   |   |
| Schedule 2.01(g): |   | Supplies                                          |   |   |
| Schedule 2.01(h): |   | Other Agreements                                  |   |   |
| Schedule 2.02(c): |   | Storm Beacon Customers                            |   |   |
| Schedule 2.02(d): |   | Excluded Hardware                                 |   |   |
| Schedule 2.02(h): |   | Unrelated Assets                                  |   |   |
| Schedule 2.07:    |   | Customers Contracts Requiring Consent             |   |   |
| Schedule 3.04:    |   | Litigation                                        |   |   |
| Schedule 3.06(b): |   | Customer Disputes                                 |   |   |
| Schedule 3.06(c): |   | Customer Bankruptcies                             |   |   |
| Schedule 3.09:    |   | Non-Exclusive IP Rights                           |   |   |
| Schedule 3.13:    |   | Tax Matters                                       |   |   |
| Schedule 3.14:    |   | Financial Statements                              |   |   |
| Schedule 3.15:    |   | Absence of Specified Changes                      |   |   |
| Schedule 3.16(a): |   | Title                                             |   |   |
| Schedule 3.17:    |   | Licenses and Permits                              |   |   |
| Schedule 3.18:    |   | Consents and Approvals                            |   |   |
| Schedule 3.20:    |   | Employment Matters                                |   |   |
| Schedule 3.21:    |   | Employee Benefit Plans                            |   |   |
| Schedule 3.22:    |   | Insurance                                         |   |   |
| Schedule 5.04:    |   | Subcontract Customers                             |   |   |

 

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**ASSETPURCHASE AGREEMENT**

This**ASSET PURCHASE AGREEMENT**(this “Agreement”) is made and entered into this        day of June, 2006 by and between **DATA TRANSMISSION NETWORKCORPORATION**, a Delaware corporation (“Buyer”), and **SURFACE SYSTEMS, INC.**, a Missouri corporation (“Seller”).  Buyer and Seller are jointly referred toherein as the “Parties.”

W I T N E S S E TH :

WHEREAS, Seller is engaged in the business of sellinginformation, software and other products related to the weather forecastingbusiness and providing services related thereto (the “Business”); and

WHEREAS, Buyer desires to purchase substantially allof Seller’s assets associated with the Business, and Seller desires to sellsuch assets to Buyer.

NOW, THEREFORE, in consideration of the promises andthe mutual representations, promises and covenants herein contained and forother good and valuable consideration, the receipt and legal sufficiency ofwhich are hereby acknowledged, the Parties hereto agree as follows:

**ARTICLEICONSTRUCTION**

**Section1.01.  Construction and Interpretation**.  All capitalized words or terms herein havethe meaning ascribed to them as immediately thereafter defined or as defined inArticle XI hereof.  The captions orheadings in this Agreement are for convenience of reference only and in no waydefine, limit or describe the scope or intent of any provisions or Sections ofthis Agreement.  All references in thisAgreement to particular Articles or Sections are references to the Articles orSections of this Agreement, unless some other references are clearlyindicated.  All accounting terms notspecifically defined in this Agreement shall be construed in accordance withUnited States generally accepted accounting principles as in effect on the datehereof.  In this Agreement, unless thecontext otherwise requires, (a) words describing the singular number shallinclude the plural and vice versa, (b) words denoting any gender shallinclude all genders and (c) the word “including” shall mean “including,without limitation.”  This Agreement andthe other instruments and documents to be delivered pursuant hereto shall notbe construed more favorably against one Party than the other based on whodrafted the same, it being acknowledged that all Parties hereto contributedmeaningfully to the drafting of this Agreement.

**ARTICLEIITRANSFER OF ASSETS AND RIGHTS**

**Section2.01.  Purchase and Sale of Assets**.  Subject to the terms and conditions of thisAgreement, Seller agrees to sell, convey, assign, transfer and deliver to Buyeras of the Effective Time, free and clear of any and all liabilities, claims,liens, restrictions on transfer and 

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encumbrances (except for the Forward LookingObligations and Permitted Liens, if any), and Buyer agrees to purchase fromSeller, all of the assets listed below, whether tangible, intangible, real,personal or mixed, and wherever located, all of which are sometimescollectively referred to in this Agreement as the “Purchased Assets”:

(a)           All rights of Seller in and to thecustomer agreements identified on Schedule 2.01(a) (the “CustomerContracts”), all rights of Seller to provide products and services to thecustomers who are parties to such agreements or customers who otherwise receiveproducts and services related to the Business from Seller, each of whom is alsoidentified on Schedule 2.01(a) (the “Customers”) and all rights to provideproducts and services to the prospective customers to whom proposals have beenpresented by Seller as of the Effective Time (the “Proposals”), a list of whichshall be provided by Seller to Buyer as soon as reasonably practicablefollowing the Closing;

(b)           All computer software systems andcomputer software licenses used and/or held by Seller in connection with orotherwise related to the Business, including but not limited to thoseidentified on Schedule 2.01(b) (the “Software and Licenses”);

(c)           All data bases, including thosestoring weather graphics and related content, used in connection with orotherwise related to the Business, including but not limited to those identifiedon Schedule 2.01(c) (the “Data Bases”);

(d)           All intellectual property rights(e.g., trade names, trademarks, service marks, copyrights, patents, websiteaddresses, website content, domain names, e-mail addresses, patent rights,licenses, brand names, trade secrets and trade dress) owned or used by Sellerin the operation of the Business, including but not limited to those identifiedon Schedule 2.01(d) (the “IP Rights”);

(e)           All computer hardware owned by Sellerand used in connection with or otherwise related to the Business, including butnot limited to the computer hardware identified on Schedule 2.01(e) (the “Hardware”);

(f)            All other equipment, furniture andappurtenances owned by Seller and used in connection with or otherwise relatedto the Business, including but not limited to the equipment, furniture andappurtenances identified on Schedule 2.01(f) (the “Other Equipment”);

(g)           All inventory, supplies andexpendable assets specifically related to the Business, including but notlimited to those identified on Schedule 2.01(g) (the “Supplies”);

(h)           All rights of Seller under thecontracts, commitments, leases, licenses and other agreements related to theBusiness (other than Customer Contracts) which are specifically identified onSchedule 2.01(h) (the “Other Agreements”);

(j)            All permits, licenses, franchises,consents or authorizations issued by, and all registrations and filings with,any Governmental Authority solely in connection with 

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the Business, wheneverissued or filed, excepting only those which by law or by their terms arenon-transferable and those which have expired (the “Permits”);

(k)           All warranties and guarantees ofmanufacturers, contractors or suppliers which pertain to the Business (the “Warranties”);

(l)            All claims of Seller against thirdparties related to the Business, whether known or unknown, fixed or continent(the “Claims”);

(m)          All of Seller’s goodwill and otherintangibles associated with the Business and the operation thereof, includingbut not limited to any goodwill associated with any Customers; and

(n)           All papers, documents, files andrecords in Seller’s care, custody or control, whether paper or electronic,relating to any or all of the above-described Purchased Assets, including butnot limited to all Customer lists, contracts, logs, correspondence, billingrecords, files and sales records.

**Section2.02.  Excluded Assets**.  Seller shall retain and not sell, convey,assign or deliver to Buyer, and Buyer shall not purchase or accept from Seller,any and all other assets not specifically identified as the Purchased Assets,including, without limitation, the following properties and assets of Seller(the “Excluded Assets”):

(a)           All cash and accounts receivable;

(b)           All rights of Seller pursuant to anyreal estate leases, vehicle leases and equipment leases;

(c)           All customers of Seller’s “StormBeacon” product, including but not limited to those identified on Schedule2.02(c) (the “Storm Beacon Customers”);

(d)           All computer hardware and relateditems not specifically listed on Schedule 2.01(e) that have a shared use,including but not limited to those identified on Schedule 2.02(d) (“ExcludedHardware”);

(e)           All general office equipment notspecifically listed on Schedule 2.01(f), including, but not limited to copymachines, telephones, facsimile machines and office furniture;

(f)            All rights and interests under anyEmployee Benefit Plan;

(g)           Except as provided inSection 3.14, all financial and business records of Seller which do notdirectly and solely relate to the Purchased Assets;

(h)           Any assets not related to theBusiness, including but not limited to those identified onSchedule 2.02(h) (the “Unrelated Assets”);

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(i)            All other assets and properties ofSeller of every kind, character or description, other than the PurchasedAssets, which are owned, used or held for use (whether or not exclusively) bySeller, wherever located, whether or not similar to the items detailed underthe Purchased Assets; and

(j)            All consideration to be received bySeller under this Agreement and all other rights of Seller hereunder.

**Section2.03.  Assumed Forward LookingObligations; Excluded Liabilities**.  Buyer shall assume all obligations incurredafter the Effective Time or accruing after the Effective Time related to theCustomer Contracts and Other Agreements purchased by Buyer pursuant toSection 2.01 hereof (the “Forward Looking Obligations”).  Buyer shall not assume any other Liabilities,obligations, contracts, leases and/or commitments of Seller of any nature, andnothing contained or described in this Agreement shall obligate Buyer to assumeany other Liabilities, obligations, contracts or commitments of Seller, itbeing agreed that Buyer shall not assume nor in any manner be liable for, andSeller shall remain liable for and discharge and shall indemnify Buyer againstand hold Buyer harmless from, all other debts, Liabilities and obligations ofSeller incurred prior to or as of the Effective Time or arising prior to or asof the Effective Time, or incurred after the Effective Time or arising afterthe Effective Time in connection with or relating to the Business prior to theEffective Time.  Without limiting theforegoing, the Parties agree that Seller shall be solely responsible and liablefor, among other things, all Liabilities for Taxes and similar items howeverdesignated, and all interest, penalties and additions to Tax, including IncomeTaxes and all accrued real property, personal property, sales, use and payrollTaxes incurred or arising prior to or as of the Effective Time, or incurred oraccrued after the Effective Time in connection with or relating to theoperation of the Business prior to the Effective Time.

**Section2.04.  Purchase Price**.  Subject to adjustment as provided in Section2.07, the total purchase price to be paid for the Purchased Assets and theother covenants and agreements of Seller set forth herein (the “Purchase Price”)shall be $1,900,000, less the amount of any fees or other amounts paid byCustomers to Seller prior to the Effective Time on account of products orservices to be provided to Customers after the Effective Time (the “PrepaidFees”), with the amount of such Prepaid Fees to be determined by the Partiesprior to Closing.  The Purchase Priceshall be payable to Seller as set forth in Section 2.06.

**Section2.05.  Closing**.  Subject to the satisfaction or waiver of theconditions set forth in Article VII hereof, the closing with respect tothe transactions contemplated herein (the “Closing”) shall take place on June30, 2006 or at such other time as Buyer and Seller may mutually agree inwriting (the “Closing Date”) and shall become effective at 11:59:59 p.m.Central Daylight Savings Time on June 30, 2006 or at such other time as Buyerand Seller may mutually agree in writing (the “Effective Time”).  All Purchased Assets and related revenue,expenses, responsibility and risk of loss shall pass to Buyer as of theEffective Time.

**Section2.06.  Payment of Purchase Price**.  Subject to adjustment as provided in Section2.07 and set off for any indemnification claims of Buyer pursuant to Section8.02(a), the Purchase Price shall be paid as follows:

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(a)           ***Closing Payment***.  At Closing, Buyer shall pay to Seller (or itsdesignee(s)) the sum of $1,566,137.39 (the “Closing Payment”), in immediatelyavailable funds via wire transfer pursuant to wiring instructions provided bySeller to Buyer at least three (3) Business Days prior to Closing.

(b)           ***Consent Holdback.***  The amount of $285,000 (the “Consent Holdback”)shall be withheld from payment at Closing and shall be payable as follows:

(i)            On the date which is three (3)months following the Closing Date (the “First Consent Date”), Buyer shall payto Seller the amount of the Consent Holdback which is in excess of the total ofall Consent Revenue associated with all Non-Consenting Customers as of theFirst Consent Date.

(ii)           On the date which is six (6) monthsfollowing the Closing Date (the “Second Consent Date”), Buyer shall pay toSeller the amount of the Consent Holdback which is in excess of the total ofall Consent Revenue associated with all Non-Consenting Customers as of theSecond Consent Date.

(iii)          On the date which is nine (9) monthsfollowing the Closing Date (the “Third Consent Date”), Buyer shall pay toSeller the amount of the Consent Holdback which is in excess of the total ofall Consent Revenue associated with all Non-Consenting Customers as of theThird Consent Date.

(iv)          On June 30, 2007 (the “Final ConsentDate”), Buyer shall pay to Seller the amount of the Consent Holdback which isin excess of the total of all Consent Revenue associated with allNon-Consenting Customers as of the Final Consent Date

All amounts due pursuantto this Section 2.06(b) shall be paid in immediately available funds via wiretransfer pursuant to wiring instructions provided by Seller to Buyer at leastthree (3) Business Days prior to the date on which such payment is due.

**Section 2.07. Purchase Price Adjustment. **Schedule2.07 sets forth each Customer Contract for which consent to assignment isrequired (each an “Assignment Consent Customer”) and each Customer of Sellerfor which Buyer shall provide services pursuant to a Subcontract for whichconsent to subcontract is required (each a “Subcontract Consent Customer” andtogether with the Assignment Consent Customers, the “Consent Customers”) andfor which such consent to assignment or subcontract has not been delivered toBuyer as of the date hereof, together with the estimated 2006 fiscal yearannual revenues of each such Consent Customer (the “Consent Revenue”).  If Seller fails to deliver to Buyer theConsent of any Consent Customer to the assignment to Buyer of the CustomerContract of such Consent Customer or to the subcontracting of services to beprovided by Buyer to such Consent Customer, as applicable (each a “Non-ConsentingCustomer”), on or prior to the Final Consent Date, then the Purchase Priceshall be reduced by an amount equal to the total of all Consent Revenueassociated with such Non-Consenting Customers. For the purpose of this Section 2.07, (a) with respect to any AssignmentConsent Customer, Consent shall mean: (i) the receipt by Buyer of payment for services rendered from an AssignmentConsent Customer pursuant to a Customer Contract, (ii) 

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the written acknowledgement by an Assignment ConsentCustomer, in a form reasonably acceptable to Buyer (which may include e-mail orother form of electronic communication), whereby such Assignment ConsentCustomer agrees to the assignment of the Customer Contract, (iii) anysubsequent award to Buyer of a contract put out to bid by an Assignment ConsentCustomer pursuant to which Buyer shall perform services substantially similarto services provided pursuant to the applicable Customer Contract, or (iv) theConsent by an Assignment Consent Customer to the subcontracting of suchCustomer Contract to Buyer (in the manner provided for in subparagraph (b)below) and the execution of a Subcontract by the parties hereto, and (b) withrespect to any Subcontract Consent Customer, Consent shall mean the consent ofa Subcontract Consent Customer in the form required pursuant to the applicablecontract.  The amount of the PurchasePrice reduction pursuant to this Section 2.07 shall be withheld from thepayment of the Consent Holdback as provided in Section 2.06(b) and in no eventshall the amount of such Purchase Price reduction exceed the amount of theConsent Holdback.

**Section 2.08.  Allocation of Purchase Price**.** **The Purchase Priceshall be allocated among the Purchased Assets as mutually agreed by Buyer andSeller within ninety (90) days following the Effective Time.  Buyer and Seller agree to use such allocationfor all tax and reporting purposes and not to take any contrary position withrespect thereto.  In the event that thePurchase Price is adjusted as the result of the operation of Section 2.07 orany indemnification obligation pursuant to Section 8.02(a), the allocation ofthe Purchase Price shall be revised accordingly as soon as reasonablypracticable.  Buyer and Seller shall takeall actions and file all Tax Returns (including but not limited to InternalRevenue Service Form 8594) consistent with such allocation unless required todo otherwise by law.

**ARTICLEIIIREPRESENTATIONS AND WARRANTIES OF SELLER**

Seller represents andwarrants to Buyer that the statements contained in this Article III arecorrect and complete as of the date of this Agreement and will be correct andcomplete as of the Effective Time, except as set forth in the DisclosureSchedules attached hereto and incorporated herein by this reference (the “DisclosureSchedules”).  The Disclosure Scheduleswill be arranged in paragraphs corresponding to numbered Sections contained inthis Article* *III.

**Section3.01.  Organization**.  Seller has been duly organized and is avalidly existing corporation in good standing under the laws of the State ofMissouri.  Seller has all corporate powerrequired to carry on the Business as now conducted and to sell, transfer andassign the Purchased Assets to Buyer. Quixote Corporation, a Delaware corporation (“Quixote”) is the sole legaland beneficial owner of all of the outstanding capital stock of QuixoteTransportation Safety, Inc., a Delaware corporation, which is the sole legaland beneficial owner of all of the outstanding capital stock of Seller.  There are no outstanding agreements for thepurchase or acquisition of any of the shares of Seller’s capital stock fromSeller or Quixote.  There are nooutstanding securities exercisable for or convertible into any capital stock ofSeller.

**Section3.02.  Authorization**.  The execution, delivery and performance ofthis Agreement by Seller is within Seller’s corporate power, has been dulyauthorized by all necessary action on the part of Seller and, when executed anddelivered in accordance with the 

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terms hereof, will constitute a valid and legallybinding obligation of Seller enforceable in accordance with its terms.

**Section3.03.  Noncontravention.**  Neither the execution and the delivery ofthis Agreement, nor the consummation of the transactions contemplated hereby,will (a) violate any constitution, statute, regulation, rule, injunction,judgment, order, decree, ruling, charge or other restriction of any government,governmental agency or court to which Seller is subject or any provision of thearticles of incorporation or bylaws of Seller or (b) conflict with, resultin a breach of, constitute a default under, result in the acceleration of orcreate in any party the right to accelerate, terminate, modify or cancel anymaterial agreement, contract, lease, license, instrument or other arrangementto which Seller is a party or by which Seller is bound or to which any of thePurchased Assets are subject (or result in the imposition of any SecurityInterest upon any of the Purchased Assets).

**Section3.04.  Litigation**.  Except as disclosed in Schedule 3.04, thereis no action, order, writ, judgment or decree outstanding or suit, litigationor proceeding pending or, to the Knowledge of Seller, threatened, againstSeller with respect to the Business, the Purchased Assets or the execution ofthis Agreement or the consummation of the transaction contemplated thereby, norhas any such action, order, writ, judgment or decree been outstanding or suit,litigation or proceeding been pending against Seller during the past three (3)years.

**Section3.05.  Assumed Agreements**.

(a)           Schedule 2.01(a) identifies allof the contracts, agreements or other relationships, whether written or oral,which are in effect as of the date of this Agreement and pursuant to whichSeller sells, licenses or otherwise provides products or services of theBusiness to third parties.  Seller has nocontracts, agreements or other relationships pursuant to which Seller sells,licenses or otherwise provides products or services of the Business to thirdparties other than the Customer Contracts.

(b)           Current, correct and complete copiesof all written agreements included within the Purchased Assets (including butnot limited to written Customer Contracts and Other Agreements), and summariesof all oral agreements included within the Purchased Assets (including but notlimited to oral Customer Contracts and Other Agreements), have been provided toor made available for inspection by Buyer.

(c)           Each written agreement includedwithin the Purchased Assets was duly executed and delivered by, and constitutesa valid and binding obligation of, Seller, enforceable against Seller inaccordance with its terms, subject to bankruptcy, insolvency, fraudulenttransfer, reorganization, moratorium and similar laws of general applicabilityrelating to or affecting creditors’ rights and to general equity principles.

(d)           Each written agreement includedwithin the Purchased Assets was duly executed and delivered by, and to theKnowledge of Seller, as of the Effective Time will constitute a valid andbinding obligation of, the other party to the agreement, enforceable againstthe other party to the agreement in accordance with its terms, subject tobankruptcy, insolvency, fraudulent transfer, reorganization, moratorium andsimilar laws 

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of general applicabilityrelating to or affecting creditors’ rights and to general equity principles.

(e)           Each agreement included within thePurchased Assets constitutes the entire agreement to which Seller is a partywith respect to the products and/or services being sold, licensed, acquired orretained to or from the other party thereto.

(f)            There has been no material breach ofthe terms of any agreement included within the Purchased Assets by Buyer or, toSeller’s Knowledge, by any other party to such agreement.

(g)           As of the Effective Time, eachagreement included within the Purchased Assets will be legal, valid, bindingand enforceable by Buyer, and in full force and effect on identical terms.

(h)           Seller has not received any noticeand has no Knowledge of any actual or threatened termination of any agreementincluded within the Purchased Assets.

(i)            Except as set forth onSchedule 3.18, each agreement included within the Purchased Assets isassignable to Buyer without any consent or approval of any person.

**Section 3.06. Customers**.

(a)           Except for customers of Seller’s “StormBeacon” product which will be terminated by Seller under their agreements or assoon as otherwise practicable, Schedule 2.01(a) sets forth a complete andcorrect list of all customers of the Business, together with the estimated 2006fiscal year annual revenues of each such customer identified therein.  Seller provides no products or services ofthe Business to any third-parties other than the Customers.

(b)           Except as set forth inSchedule 3.06(b), Seller is not and has not been engaged in any materialdispute with any of its Customers since June 30, 2005.  Seller has not received any actual notice anddoes not have any reason to believe that any of its Customers has ceased, orafter the Effective Time will cease, to use the products or services of theBusiness or that any of its Customers has substantially reduced, or after theEffective Time will substantially reduce, the use of such products or servicesat any time.

(c)           Except as set forth inSchedule 3.06(c), to the Knowledge of Seller, none of the Customers havefiled a petition in bankruptcy or voluntary reorganization, commenced any caseor proceeding under applicable bankruptcy laws or other similar laws, or hadcommenced against them any case or proceeding under any applicable bankruptcyor other similar laws, other than any petitions, cases or proceedings whichhave been dismissed prior to the date of this Agreement.

(d)           Seller has provided Buyer with true,accurate and complete Customer information, including but not limited tocontracts, pricing and addresses, as requested by Buyer.

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**Section3.07.  Hardware and Other Equipment**.  Schedules 2.01(e) and 2.01(f) set forth anaccurate and complete list of all Hardware and Other Equipment owned by Sellerand used in connection with or otherwise related to the Business, and all ofsuch Hardware and Other Equipment is in good operating condition (reasonablewear and tear excepted).

**Section3.08.  Software, Licenses and Data Bases**.

(a)           Schedule 2.01(b) sets forth alist of all of the software and licenses which are used by Seller in connectionwith or otherwise related to the Business and are material to the operationsthereof, including all computer software programs and related documentation andmaterials, other than any computer software programs and related documentationand materials subject to “shrink wrap” and/or “click wrap” licenses.  Schedule 2.01(c) sets forth a list ofall data bases which are used by Seller in connection with or otherwise relatedto the Business and are material to the operations thereof.

(b)           As specified on Schedules 2.01(b) and(c), Seller either owns, free and clear of any liens, all right, title andinterest in all Software and Licenses and Data Bases and the media included inthe Purchased Assets on which such Software and Licenses and Data Bases ownedby Seller is contained, or has a valid license to use such Software andLicenses and Data Bases contained on such media included in the PurchasedAssets and licensed or otherwise made available for use to it.

(c)           The use by Seller of any Software andLicenses and Data Bases that are proprietary to Seller does not conflict with,misappropriate or infringe upon the rights or ownership interests of any otherPerson and, to the Knowledge of Seller, the use by Seller of any third-partySoftware and Licenses and Data Bases does not conflict with, misappropriate orinfringe upon the rights or ownership interests of any other Person.

(d)           No claims (i) challenging thevalidity, effectiveness or, other than with respect to any licensed Softwareand Licenses and Data Bases, ownership by Seller of any of the Software andLicenses and Data Bases or (ii) to the effect that the use, distribution,licensing, sublicensing, sale or any other exercise of rights in the Softwareand Licenses and Data Bases by Seller or its agents or use by its customersinfringes or will infringe on any rights or interests of any Person, have beenasserted or, to the Knowledge of Seller, are threatened by any Person, and Sellerhas no Knowledge of the existence of any facts which could reasonably supportsuch a claim.

(e)           None of the Software and Licenses orData Bases contain any Self-Help Code or any Unauthorized Code.

(f)            The Software and Licenses and DataBases and the transferred rights and licenses thereto are sufficient to operatethe Business after Closing in the manner it was operated prior to Closing andwill not result in any additional license fees or charges after Closing in theoperation of the Business other than any license fees required to be paidpursuant to the licenses identified on Schedules 2.01(b) and (c).

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**Section 3.09. Intellectual Property**.

(a)           Schedule 2.01(d) sets forth atrue and complete list of (i) all United States, state and foreignregistrations of and applications for patents, trademarks, service marks, tradenames and copyrights owned by Seller, (ii) all patent licenses, trademarklicenses, service mark licenses, trade name licenses, trade secret licenses andcopyright licenses held by Seller, and (iii) all other intellectual propertyrights, owned, held or used by Seller in connection with the Business.

(b)           Except as set forth onSchedule 3.09, Seller is the sole and exclusive owner of the entire right,title, and interest in and to all IP Rights listed on Schedule 2.01(d).

(c)           All IP Rights are subsisting and havenot been adjudged invalid or unenforceable, in whole or in part, and Seller hasperformed all acts and has paid all renewal, maintenance, and other fees andtaxes required to maintain each and every registration and application ofpatents, trademarks, service marks, trade names and copyrights in full forceand effect.

(d)           Except as set forth on Schedule 3.09,all of the IP Rights are valid and enforceable; no holding, decision, orjudgment has been rendered in any action or proceeding before any court oradministrative authority challenging the validity of, Seller’s right toregister, or Seller’s rights to own or use, any IP Rights and no such action orproceeding is pending or, to the Knowledge of Seller, threatened.

(e)           All registrations and applicationsfor patents, trademarks, service marks, trade names and copyrights are standingin the name of Seller, and none of the patents, trademarks, service marks,trade names, copyrights or trade secrets has been licensed by Seller to anyAffiliate or third party.

(f)            Seller has been using appropriatestatutory notice of registration in connection with its use of registeredtrademarks and service marks, proper marking practices in connection with theuse of patents, and appropriate notice of copyright in connection with thepublication of copyrights.

(g)            Except as set forth on Schedule3.09, Seller’s operation of the Business does not infringe upon or otherwiseviolate any trademark, service mark, trade name, patent, copyright, tradesecret or other intellectual property right owned or controlled by a thirdparty; no claim has been made that the use of any IP Rights owned or used bySeller (or any of its respective licensees) violates the asserted rights of anythird party.

(h)           To the Knowledge of Seller, no thirdparty is infringing upon or otherwise violating any rights in any IP Rightsowned or used by Seller, or any of its licensees.

(i)            No settlement or consents, covenantsnot to sue, nonassertion assurances, or releases have been entered into by  or otherwise binding upon Seller thatadversely affect Seller’s rights to own or use any IP Rights.

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(j)            Seller has not made a previousassignment, sale, transfer or agreement constituting a present or futureassignment, sale, transfer or agreement related to any IP Rights that has notbeen terminated or released.

(k)           The IP Rights are sufficient tooperate the Business after Closing in the manner in which it was operated priorto Closing and will not result in any additional license fees or charges afterClosing in the operation of the Business, other than those regularly paid bySeller in the ordinary course of business prior to Closing.

**Section3.10.  Supplies**.  Schedule 2.01(g) sets forth an accurateand complete list of all of the inventory, supplies and expendable assets whichare used by Seller in connection with the Business.

**Section3.11.  St. Louis Facility. **A correct and complete copyof the real estate lease pertaining to Seller’s facility located at 11612Lilburn Park Road, St. Louis, Missouri (such facility being referred to hereinas the “St. Louis Facility,” and such real estate lease being referred toherein as the “St. Louis Real Estate Lease”) has been provided to or madeavailable for inspection by Buyer.  Theemployees to be leased under the Employee Leasing Agreement will continue tohave access to the St. Louis Facility and while there will have the use of allof the tools and equipment necessary for them to provide the same services forBuyer that they have provided to Seller prior to the Closing.

**Section3.12.  Compliance With Laws**.  Seller is in compliance with, is not inviolation of and, to Seller’s Knowledge, is not under investigation withrespect to any suspected or alleged violation of, any laws applicable to thePurchased Assets and/or conduct of the Business.

**Section3.13.  Tax Matters**.  Except as set forth on Schedule 3.13,all Tax Returns for all periods ending on or before the Effective Time thatare, were or may in the future be required to be filed by or with respect tothe Business or the Purchased Assets, either separately or as a member of anaffiliated group of entities, have been filed or will be filed on a timelybasis, and in accordance in all material respects with the laws, regulationsand administrative requirements of any applicable Taxing Authority.  All such Tax Returns that have been filed onor before the Effective Time or will be filed after the Effective Time relatingto the Business or Purchased Assets prior to the Effective Time, were andcontinue to be or, when filed, will be true, correct and complete in allmaterial respects; and, except as set forth on Schedule 3.13, Seller haspaid, or will pay when due, all Taxes relating to the Business or the PurchasedAssets, including personal property taxes and payroll taxes, that have or maybecome due for all periods (or portions thereof) ending on or before theEffective Time.  There are no liens withrespect to Taxes upon any of the Purchased Assets (except for Taxes not yetdue).

**Section 3.14. Financial Statements**.

(a)           Schedule 3.14 to this Agreementsets forth the unaudited balance sheets and statements of income pertaining tothe Business for the twelve (12) month periods ending June 30, 2005 and 2004,certified by an officer of Seller (the “Financial Statements”).  The revenue set forth in the income statementfor the Business has been recognized in accordance with generally acceptedaccounting principles in the United

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States in all materialrespects.  The Financial Statements havebeen prepared in accordance with accepted accounting principles in the UnitedStates, applied on a consistent basis through the periods indicated and witheach other, are complete and correct in all material respects, are consistentwith the books and records of Seller, and accurately and fairly present thefinancial position of the Business as of the date of the Financial Statements,as well as the results of Seller’s Business operations for the periodsindicated.

(b)           The books and records of Seller(i) accurately reflect all material items of income and expense and allassets and Liabilities of Seller, (ii) are in all material respectscomplete and correct and do not contain any material inaccuracies ordiscrepancies, (iii) have been maintained in accordance with good businessand accounting practices, and (iv) have been made available to Buyer forits inspection.

(c)           Seller has no Liability (and there isno basis for any present or future proceeding against Seller giving rise to anyLiability), other than (i) Liabilities set forth on the face of theFinancial Statements (rather than the notes thereto), (ii) Liabilitiesincurred in the Ordinary Course of Business consistent with past practicesubsequent to December 31, 2005 and (iii) obligations under CustomerContracts and Other Agreements incurred in the Ordinary Course of Businessconsistent with past practice subsequent to December 31, 2005, all ofwhich Liabilities and obligations referred to in the foregoing clauses (i)through (iii), individually or in the aggregate, are not material to thefinancial condition or operating results, assets or prospects of Seller.

**Section 3.15. Absence of Specified Changes**.  Except as listed on Schedule 3.15, sinceDecember 31, 2005, there has not been any:

(a)           Material Adverse Effect on thefinancial condition, Liabilities, assets, business, operating results orprospects of the Business and/or the Purchased Assets;

(b)           destruction, damage to or loss of anyBusiness assets of Seller (whether or not covered by insurance) that has had ormay have a Material Adverse Effect on the assets, financial condition,business, operating results or prospects of the Business;

(c)           labor disputes, preliminary unionorganization or requests for union representation concerning the Business;

(d)           increase in the salary or othercompensation or benefits payable or to become payable to any of the employeesof Seller whose duties relate to the Business (“Employees”), other than thoseincreases provided to Employees in the Ordinary Course of Business;

(e)           sale or transfer of any Businessasset of Seller;

(f)            execution, creation, amendment,nonrenewal or termination of any contract, agreement or license pertaining tothe Business;

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(g)           additional indebtedness for borrowedmoney involving or relating to the Business or any of the Purchased Assets;

(h)           creation or assumption by Seller ofany mortgage, lien, Security Interest, pledge or other encumbrance on any ofthe Purchased Assets;

(i)            waiver of any rights or cancellationor forgiveness of any claims or indebtedness related to any Purchased Asset orthat would otherwise be a Purchased Assets;

(j)            any receipt by Seller of(i) notice of any loss of, (ii) material order cancellation by,(iii) material pricing or other contract changes with respect to,(iv) material dispute with or (v) material complaints from, anyCustomers;

(k)           initiation, receipt or settlement ofany action, arbitration, audit, hearing, investigation, litigation, lawsuit orother similar proceeding affecting the Business or the Purchased Assets;

(l)            other event or condition of anycharacter that has or might reasonably have a Material Adverse Effect on thefinancial condition, business, assets, operating results or prospects of theBusiness and/or the Purchased Assets;

(m)          conduct or activity concerning theBusiness and/or the Purchased Assets which has not been in the Ordinary Courseof Business; or

(n)           agreement by Seller to do any of thethings described in the preceding clauses (a) through (m).

**Section 3.16. Title**.

(a)           Except as identified onSchedule 3.16(a), Seller is the owner of good and valid title to all ofthe Purchased Assets, free and clear of all liabilities, liens, charges,claims, licenses, rights, encumbrances and restrictions on transfers other thanthe Forward Looking Obligations and Permitted Liens, if any; and, no financingstatement covering all or any portion of the Purchased Assets and naming Selleras debtor has been filed in any public office which has not been released, andSeller has not signed any financing statement or security agreement as debtoror borrower which financing statement or security agreement covers all or anyportion of the Purchased Assets which has not been released.

(b)           As of the Effective Time, Buyer willacquire the Purchased Assets for its exclusive use free and clear of allliabilities, liens, charges, claims, licenses, rights, encumbrances andrestrictions on transfers, except those that may arise from acts of Buyer, theForward Looking Obligations or any Permitted Liens.  As of the Effective Time, Seller shall have noright, title or interest in the Purchased Assets.

**Section3.17.  Licenses and Permits**.  Schedule 3.17 hereto contains a list anddescription of all licenses, authorizations and permits required by anyGovernmental Authority in

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connection with the operation of the Business aspresently being conducted, including but not limited to the Permits.  Seller has all governmental licenses,authorizations and permits required to carry on the Business as now conductedand to sell, transfer and assign the Purchased Assets to Buyer, and all suchlicenses, authorizations and permits are in full force and effect, except forany licenses, authorizations and permits the absence of which, individually orin the aggregate, would not have a Material Adverse Effect.  Seller is, and at all times during the pasttwo (2) years has been, in full compliance with all of the terms andrequirements of each of the licenses, authorizations and permits listed onSchedule 3.17.  No event hasoccurred or circumstance exists that may (with or without notice or lapse oftime): (a) constitute or result directly or indirectly in a violation of, or afailure to comply with, any term or requirement of any license, authorizationor permit listed on Schedule 3.17, or (b) result directly or indirectly inthe revocation, withdrawal, suspension, cancellation or termination of, or anymodification to, any license, authorization or permit listed onSchedule 3.17.

**Section3.18.  Consents and Approvals.**  Schedule 3.18 hereto contains a list anddescription of all notices or filings to and consents or approvals of any thirdparties, including but not limited to any Governmental Authorities, customers,suppliers, lessors or lenders, which may be necessary in order to effectivelyand legally transfer all of the Purchased Assets to Buyer or to otherwisecomplete the transactions contemplated by this Agreement, except for anynotices, filings, consents or approvals the absence of which, individually orin the aggregate, would not have a Material Adverse Effect on the Business orthe Purchased Assets.

**Section3.19.  Broker or Finders’ Fees**.  There is no third party investment banker,broker, finder or other intermediary which has been retained by or isauthorized to act on behalf of Seller who would be entitled to any fee orcommission in connection with this Agreement or the transactions contemplatedhereby.

**Section 3.20. Employees; Compensation; Labor**.  Except as set forth on Schedule 3.20:

(a)           None of the Employees are subject toa written employment agreement or change of control agreement;

(b)           As of the date of this Agreement andas of the Closing Date, no general manager, operations manager, sales manageror, to the Knowledge of Seller, any other Employee has formally indicated hisor her intention to reject an offer of employment from Buyer;

(c)           There are no unions representing theinterests of any of the Employees and, to the Knowledge of Seller, there are noEmployees seeking or attempting to organize other union representation;

(d)           There are no agreements betweenSeller and any labor organizations representing any of the Employees;

(e)           There are neither pending nor, to theKnowledge of Seller, threatened any strikes, work stoppages, work disruptionsor employment disruptions by any of the Employees;

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(f)            There are not any pending or, to theKnowledge of Seller, threatened suits, actions, administrative proceedings,hearings, arbitrations or other proceedings between Seller and any of theEmployees;

(g)           Since June 30, 2004, Seller(i) has complied in all material respects with all laws and regulationsrelating to the employment of labor, including any provisions thereof relatingto wages, hours, collective bargaining and the payment of social security andsimilar Taxes, (ii) is not liable for any material arrearages of wages orany Taxes or penalties for failure to comply with any of the foregoing,(iii) has not committed any material unfair labor practices, and(iv) has complied in all material respects with all applicable provisionsof the Occupational Safety and Health Act of 1970 and regulations promulgatedpursuant thereto; and

(h)           To the Knowledge of Seller, sinceJune 30, 2004, none of the Employees has filed any complaint relating toSeller, the Business or the employment of such Employee with any governmentalor regulatory authority or brought any action in law or in equity with respectto.

**Section 3.21.  Employee BenefitPlans**.  Except as set forth on Schedule 3.21, eachEmployee Benefit Plan that covers Employees (and each related trust, insurancecontract, or fund) complies in form and in operation in all material respectswith the applicable requirements of ERISA, the Code, and other applicablelaws.  Buyer shall not incur anyliability with respect to any Employee Benefit Plan that covers Employees.

**Section3.22.  Insurance**.  Schedule 3.22 sets forth an accurate andcomplete list of all indemnity bonds for the Business. With respect to eachbond:  (a) all premiums with respectthereto are currently paid and the bond is legal, valid, binding and enforceablein accordance with its terms and is in full force and effect, (b) Selleris not in material breach or default of the bond and, to Seller’s Knowledge, noevent has occurred which, with notice or lapse of time, would constitute such abreach or default, or permit termination or modification of the bond,(c) Seller has not received any notice of cancellation or non-renewal ofthe bond, and (d) the consummation of the transactions contemplated bythis Agreement will not cause a breach, termination, modification oracceleration of the bond.

**Section3.23.  Fair Value**.  After due consideration, Seller’s Board ofDirectors has determined and represent to Buyer that the Purchase Priceconstitutes full and fair consideration and reasonably equivalent value for thesale of the Purchased Assets.

**Section 3.24. Solvency**.

(a)           Seller is not now insolvent and willnot be rendered insolvent by the execution and performance of this Agreement orany of the related agreements or the consummation of the transactionscontemplated by this Agreement or any of the related agreements.  As used in this Section 3.24, “insolvent”means that the sum of the debts and other probable liabilities of Seller exceedthe present fair saleable value of Seller’s assets.

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(b)           Immediately after giving effect tothe transactions contemplated by this Agreement:  (i) Seller will be able to pay itsliabilities as they become due in the usual course of its business;(ii) Seller will not have unreasonably small capital with which to conductits present or future business; (iii) Seller will have assets (calculatedat fair market value) that exceed its liabilities; and (iv) taking intoaccount all pending and threatened litigation, any final judgments againstSeller in actions for money damages are not reasonably anticipated to berendered at a time when, or in amounts such that, Seller will be unable tosatisfy any such judgments promptly in accordance with their terms (taking intoaccount the maximum probable amount of such judgments in any such actions andthe earliest reasonable time at which such judgments might be rendered) as wellas all other obligations of Seller.  Thecash available to Seller, after taking into account all other anticipated usesof the cash, will be sufficient to pay all such debts and judgments promptly inaccordance with their terms.

(c)           No action has been taken by or onbehalf of Seller for the termination, winding up, liquidation or dissolution ofit or to make any assignment for the benefit of creditors.  Seller is not unable to pay its debts as theymature.  Seller has not filed a petitionin voluntary liquidation or bankruptcy or under other similar laws and has notcommenced any case or proceeding under applicable insolvency or bankruptcy lawsor other similar laws.  Seller has notconsented to the appointment of a receiver, administrator, custodian,liquidator or trustee of all or any part of its assets.  Seller has not taken any action for thepurpose of effecting any of the foregoing. No order or decree has been rendered by any Governmental Authority withrespect to Seller regarding any of the foregoing.  Seller has not been adjudicated as bankruptor insolvent.  No petition for anyproceeding in bankruptcy, liquidation or insolvency or for the reorganizationor readjustment of indebtedness has been filed with respect to Seller.  No case or proceeding has been commencedunder any applicable bankruptcy or insolvency laws against Seller.  No receiver, administrator, custodian,liquidator or trustee has been appointed for Seller or any part of the assetsof Seller.

**Section3.25.  Disclosure**.  No representation or warranty of Seller inthis Agreement, nor any certificate, schedule, exhibit or written informationfurnished or to be furnished by Seller pursuant to this Agreement or therelated agreements, or any document or certificate delivered to Buyers by or onbehalf of Seller pursuant to this Agreement or the related agreements, containsor will contain, on the date of such statement, certificate, schedule, exhibitor document, any untrue statement of material fact, or omits or will omit, onsuch date, a material fact necessary to make the statements contained therein,in light of the circumstances in which they are made, not misleading.

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**ARTICLE IVREPRESENTATIONS AND WARRANTIES OF BUYER**

 

Buyer represents andwarrants to Seller that the statements contained in this Article IV are correctand complete as of the date of this Agreement, and will be correct and completeas of the Effective Time.

**Section4.01.  Organization**.  Buyer has been duly organized and is avalidly existing corporation in good standing under the laws of the State ofDelaware.  Buyer has all power requiredto purchase, acquire and assume the Purchased Assets from Seller.

**Section4.02.  Authorization**.  The execution, delivery and performance ofthis Agreement by Buyer is within Buyer’s power, has been duly authorized byall necessary action on the part of Buyer and, when executed and delivered inaccordance with the terms hereof, will constitute a valid and legally bindingobligation of Buyer enforceable in accordance with its terms.

**Section4.03.  Noncontravention**.  Neither the execution and the delivery ofthis Agreement, nor the consummation of the transactions contemplated hereby,will (a) violate any constitution, statute, regulation, rule, injunction,judgment, order, decree, ruling, charge or other restriction of any government,governmental agency or court to which Buyer is subject or any provision of thearticles of organization or operating agreement of Buyer or (b) conflict with,result in a breach of, constitute a default under, result in the accelerationof or create in any party the right to accelerate, terminate, modify or cancelany material agreement, contract, lease, license, instrument or otherarrangement to which Buyer is a party or by which Buyer is bound.

**Section4.04.  Litigation**.  There is no action, order, writ, judgment ordecree outstanding or suit, litigation or proceeding pending or, to theKnowledge of Buyer, threatened, against Buyer with respect to the execution ofthis Agreement or the consummation of the transaction contemplated thereby.

**Section4.05.  Broker or Finders’ Fees**.  There is no third party investment banker,broker, finder or other intermediary which has been retained by or isauthorized to act on behalf of Buyer who would be entitled to any fee orcommission in connection with this Agreement or the transactions contemplatedhereby.

**ARTICLEVADDITIONAL AGREEMENTS**

**Section5.01.  Conduct of Business**.  During the period from the date of thisAgreement to the Effective Time, Seller shall carry on the Business only in theOrdinary Course of Business and in the same manner as conducted prior to thedate of this Agreement.  To the extentconsistent therewith, Seller shall use its Best Efforts to perform and satisfyits obligations under the Customer Contracts and Other Agreements, preserveintact the current business organization of the Business, keep available theservices of the current Employees and preserve such business

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relationships and goodwill with Employees, agents,brokers, intermediaries, customers, suppliers, vendors and others havingbusiness relationships with or interests in such business.

**Section5.02.  Employee Leasing Agreement**.  Buyer and Seller shall, simultaneously withthe Closing, execute an employee leasing agreement with respect to the leasingand outsourcing of certain employees  ofSeller to Buyer and the use of the St. Louis Facility by such employees andBuyer (the “Employee Leasing Agreement”), substantially in the form of ExhibitA hereto, effective as of the Effective Time.

**Section5.03.  Product Marketing Agreement**.  Buyer and Quixote TransportationTechnologies, Inc., a Delaware corporation (“QTT”) shall, simultaneously withthe Closing, execute a product marketing agreement for the cross-sale andpromotion of the business services and products of Buyer and QTT (the “ProductMarketing Agreement”), substantially in the form of Exhibit B hereto, effectiveas of the Effective Time.

**Section5.04.  Subcontract**.

(a)           On or before July 7, 2006, Buyer andSeller shall execute a subcontract (each a “Subcontract”) substantially in theform of Exhibit C hereto, for the provision of services by Buyer for thecustomers of Seller identified on Schedule 5.04, each Subcontract to beeffective as of the Effective Time and to continue throughout the remainingduration of the contract being subcontracted. Promptly following the receipt of Consent, Buyer and Seller shallexecute a Subcontract with respect to all other contracts identified onSchedule 5.04, to be effective throughout the remaining duration of thecontract being subcontracted.  Notwithstanding the foregoing, the partiesagree that, effective upon the Effective Time, Buyer shall perform theforecasting requirements set forth in each of the contracts listed on Schedule5.04 and, in consideration of such services, Seller shall pay to Buyer thatshare of the payments received by Seller from the customer which are allocableto such forecasting services.

 (b)          Inthe event Seller enters into subsequent or additional contracts that includeforecasting services with those customers identified on Schedule 5.04, or anycustomers for which a Subcontract is entered into due to the inability tootherwise obtain a Consent pursuant to Section 2.07, then such forecastingservices shall also be subcontracted to Buyer.

**Section 5.05. Public Announcements**. Prior to July 6, 2006, Seller shall make no internal or externalannouncement to its Employees and shall make no public announcements relatingto the subject matter of this Agreement. Seller shall not issue any press release and shall direct and cause itsofficers, directors, employees, consultants and advisors not to issue any pressrelease relating to the subject matter of this Agreement without the priorwritten approval of Buyer.  Seller andBuyer will consult with each other concerning the means by which Seller’semployees, Customers, vendors and suppliers and others having dealings withSeller will be informed of the contemplated transactions for a reasonable timefollowing the Closing, and Buyer will have the right to be present for any suchcommunication.

 

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**Section5.06.  No Solicitation**.  From and after the date of this Agreement,until the earlier of the Effective Time or the termination of this Agreementpursuant to Article VIII, Seller shall not, and Seller shall cause itsofficers, directors, shareholders, employees, agents, representatives andadvisors not to:  (a) solicit,initiate or encourage (including by way of furnishing information), or take anyother action to facilitate the submission of, any inquiry, proposal or offerfrom any Person relating to (i) any purchase, pledge or other acquisitionof any material portion of the Business assets of Seller or of any of Seller’scapital stock or options of or for any such capital stock, options or equityinterests, whether by any merger, consolidation, business combination,amalgamation, asset sale, stock issuance, recapitalization, tender offer,exchange offer, liquidation, dissolution, license or any other similartransaction (other than the transaction contemplated by this Agreement), or(ii) any other similar transaction, the consummation of which couldreasonably be expected to impair, impede, interfere with, prevent or materiallydelay the transaction contemplated by this Agreement or could reasonably beexpected to dilute the benefits to Buyer of the transactions contemplated bythis Agreement (collectively, “Transaction Proposals”); (b) agree to orendorse any Transaction Proposal (whether such agreement or endorsement isoral, in writing, absolute, revocable, contingent or conditional); or(c) enter into or participate in any discussions or negotiations regardingany Transaction Proposal, or furnish to any other Person any information withrespect to Seller, the Purchased Assets or the Business in connection with anyTransaction Proposal, or otherwise cooperate in any way with, or assist,participate in, facilitate or encourage, any effort or attempt by any otherPerson to submit or otherwise act in furtherance of a TransactionProposal.  Without limiting any of theforegoing provisions of this Section 5.06, it is understood that anyviolation of the restrictions set forth in this Section 5.06 by anyinvestment banker, financial advisor, attorney, accountant or other agent orrepresentative of Seller shall be deemed a breach of this Section 5.06 bySeller.

**Section5.07.  Representations and Warranties**.  Each Party shall promptly notify the otherParty of any events or occurrences after the date hereof which cause or result,or may cause or result, in any of the representations or warranties set forthin this Agreement ceasing to be true and accurate in any material respect.

**Section5.08.  Disclosure Schedules**.** **Onor prior to the date hereof, Seller has delivered to Buyer all DisclosureSchedules required to be prepared and delivered by Seller hereunder anddelivered on the date hereof.  Sellershall be entitled to further supplement or amend any Disclosure Schedule onlyif doing so is required to update such Disclosure Schedule to reflect events oroccurrences after the date hereof, and Seller shall promptly provide to Buyerany such updates after such event or occurrence.  In the event that any item included on anysupplement or amendment to the Disclosure Schedules reveals any facts orcircumstances which, in the reasonable opinion of Buyer, would have, individuallyor in the aggregate, a Material Adverse Effect on the Purchased Assets or theForward Looking Obligations, or Buyer’s ability to conduct the Businessimmediately following the Closing substantially as such is presently conducted,Buyer and Seller shall immediately commence negotiations with respect to amutually agreeable adjustment to the Purchase Price and if Buyer and Seller areunable to mutually agree upon an adjustment to the Purchase Price within five(5) Business Days following the commencement of negotiations, Buyer may, bywritten notice to Seller, terminate this Agreement.

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**Section 5.09. Due Diligence**. During the period from the date of this Agreement to the Effective Time,Buyer shall have the right to inspect and review, and Seller agrees to makeavailable to Buyer or its representatives, any of the Purchased Assets and anydocuments, records, data, agreements, financial statements or other itemsrelated to the Purchased Assets or the Business which Buyer reasonably deemsnecessary in order to evaluate the Purchased Assets, the Business and/or thetransactions contemplated by this Agreement. Unless the Parties otherwise agree to the contrary, any inspection orreview to be conducted on Seller’s premises shall be conducted during normalbusiness hours and upon reasonable prior notice.  Seller shall use its Best Efforts tocooperate and assist with Buyer’s due diligence and to provide to Buyer alldocuments, records, data, agreements, financial statements and other itemsreasonably requested by Buyer in connection with its due diligence.

**ARTICLEVIPOST-CLOSING COVENANTS**

**Section6.01.  Further Action**.  The Parties agree that with respect to theperiod following the Closing, in case at any time after the Closing any furtheraction is necessary or desirable to carry out the purposes of this Agreement,each of the Parties will takesuch further action (including the execution and delivery of such furtherinstruments and documents) as any other Party reasonably may request, and allat the sole cost and expense of the requesting Party (unless the requestingParty is entitled to indemnification therefore under Section 8.02 hereof);provided that such cost and expense shall be limited to reasonableout-of-pocket expenses without any application of overhead or profit.

**Section6.02.  Consents and Authorizations**.  To the extent waived or otherwise notrequired as a condition of Closing, by the Final Consent Date with respect tothose consents identified on Schedule 2.07 and within thirty (30) daysfollowing the Closing with respect to all others, Seller shall deliver to Buyerwritten confirmation of all consents, approvals, authorizations or orders ofand all registrations, declarations or filings with third parties, includingcreditors, contract parties or Governmental Authorities, necessary for theauthorization, execution and delivery of this Agreement by Seller or theconsummation by Seller of the transactions contemplated by this Agreement,including but not limited to those referred to in Sections 3.17 and 3.18.  Between the Effective Time and the date anyconsent, approval, authorization or order is obtained as required by thisSection 6.02, subject to the terms of the applicable agreement and to the extentpermitted by law, the Parties will use their Best Efforts to (a) provideto Buyer the benefits of the applicable agreement, (b) relieve Seller ofthe performance obligations of the applicable agreement, to the extentpossible, (c) cooperate in any reasonable and lawful arrangement designedto provide the benefits to Buyer, including entering into subcontracts forperformance, and (d) enforce at the request and sole expense of Buyer andfor the account of Buyer any rights of Seller arising from any such agreement(including the right to elect to terminate such agreement in accordance withthe terms thereof upon the request of Buyer).

**Section6.03.  Litigation Agreement**.  In the event, and for so long as, any Partyactively is contesting or defending against any action, suit, proceeding,hearing, investigation, charge, complaint, claim or demand (other than againstthe other Party) in connection with (i) any

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transaction contemplated under this Agreement or(ii) any fact, situation, circumstance, status, condition, activity,practice, plan, occurrence, event, incident, action, failure to act ortransaction on or prior to the Effective Time involving the Business or any ofthe Purchased Assets, the other Party will cooperate with the contesting ordefending Party and its counsel in the contest or defense thereof, makeavailable its personnel and provide such testimony and access to its books andrecords as shall be reasonably necessary in connection with the contest ordefense thereof, all at the sole cost and expense of the contesting or defendingParty (unless the contesting or defending Party is entitled to indemnificationtherefor under Section 8.02 hereof).

**Section6.04.  Transition**.  Seller will not take any action that isdesigned or intended to have the effect of discouraging any licensor, customer,supplier or other business associate from maintaining the same businessrelationships with Buyer after the Effective Time as such party maintained withSeller prior to the Effective Time. Seller will refer all customer inquiries relating to the Business toBuyer from and after the Effective Time. Buyer and Seller shall each use their Best Efforts to cooperate with theother, and to cause their respective employees to act accordingly, in order tofulfill the intent and purpose of this Agreement.

**Section 6.05. Confidentiality**.

(a)           Seller will treat and hold asconfidential all of the Confidential Information, refrain from using any of theConfidential Information except in connection with this Agreement and deliverpromptly to Buyer or destroy, at the request and option of Buyer, all tangibleembodiments (and all copies) of the Confidential Information which are in itspossession.  In the event that Seller isrequested or required (by oral question or request for information or documentsin any legal proceeding, interrogatory, subpoena, civil investigative demand orsimilar process) to disclose any Confidential Information, Seller will notifyBuyer promptly of the request or requirement so that Buyer may seek anappropriate protective order or waive compliance with the provisions of thisSection 6.05.  If, in the absence of aprotective order or the receipt of a waiver hereunder, Seller is, on the adviceof counsel, compelled to disclose any Confidential Information, Seller maydisclose the Confidential Information; provided, however, that Seller shall useits Best Efforts to obtain, at the request and expense of Buyer, an order orother assurance that confidential treatment will be accorded to such portion ofthe Confidential Information required to be disclosed as Buyer shall designate.

(b)           Buyer and Seller each acknowledgethat: (i) they are not acting as an advisor to any other party and willnot receive any amount that could be construed as a “minimum fee” within themeaning of Treas. Reg. §1.6011-4(b)(3) (or any successor thereto); and(ii) notwithstanding any provision to the contrary set forth in thisAgreement or the Mutual Non-Disclosure Agreement between DTN Holding Company,LLC and its affiliates and Quixote, dated May 19, 2005, as amended (the “Non-DisclosureAgreement”), no Party is under any obligation to the other to keep confidentialthe tax treatment or tax structure of the transactions contemplated by thisAgreement.

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**Section 6.06. Noncompetition/Nonsolicitation.**

(a)           Except as set forth in the ProductMarketing Agreement and the Employee Leasing Agreement, in consideration of thepromises contained herein and the consideration to be received hereunder,Seller shall not, from and after the Closing until the date which is five (5)years from the Closing Date (the “Restricted Period”), directly or indirectly(including, but not limited to actions taken by or through its parent,Quixote), own, manage, control, participate in, consult with, or renderservices for, whether as an agent, employee, consultant, advisor, stockholder,member, partner or joint venturer, or in any manner engage in any business thatcompetes with the Business within the Restricted Territory or solicit, divert,take away or attempt to take away any of the customers of the Business orinterfere with or attempt to interfere with any then existing relationshipbetween Buyer and any of its customers, suppliers or other Persons with whom itdeals.  For purposes of this Section6.06, the “Restricted Territory” shall mean the United States and Canada.  Notwithstanding any provision of thisAgreement to the contrary, Seller may bid on and fulfill any projects thatinclude weather forecasting services when combined with equipment, software and/ormaintenance services to be provided by Seller, so long as Seller relies on athird-party provider for the weather forecasting portion of such contracts;provided, however, that Buyer shall have a first priority right to bid on andfulfill any such weather forecasting services to be provided under suchcontracts on terms and conditions no less favorable than those formally offeredby such prospective third-party provider. Buyer’s decision to bid on or fulfill such projects shall be madepromptly and in a timely fashion as determined by the nature of the procurementprocess for each such opportunity.

(b)           During the Restricted Period, Sellershall not, directly or indirectly, hire or solicit to hire any employee ofBuyer or induce or attempt to induce any such employee to leave his or heremployment with Buyer after the Closing.

(c)           It is the desire and intent of theparties that the provisions of this Section 6.06 be enforced to the fullestextent permissible under applicable laws and public policies applied in eachjurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Section 6.06 shall beadjudicated to be invalid or unenforceable, such provision shall be deemedamended to the extent necessary in order that such provision be valid andenforceable, such amendment to apply only with respect to the operation of suchprovision of this Section 6.06 in the particular jurisdiction in which suchadjudication is made.

**Section 6.07. Access to Records After the Closing**.

(a)           After the Closing, upon reasonableprior notice, Buyer and its representatives shall be permitted reasonableaccess, during normal business hours, to and to make inspection of Seller’sbooks and records regarding the Business and the Purchased Assets, so long assuch records are maintained by Seller in accordance with its customary recordsretention policy, and to make copies thereof as reasonably necessary to allowBuyer to obtain information in Seller’s possession regarding the Business andthe Purchased Assets (but excluding attorney work product or other privileged

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communications).  Buyer shall pay Seller’s reasonableout-of-pocket costs and expenses in connection with satisfying suchrequests.  Seller shall provide Buyerwith at least thirty (30) days written notice prior to the destruction ofany books and records pertaining to the Business and the Purchased Assets, andBuyer shall have the option of taking possession of any such books and records,at its sole expense, prior to the expiration of such thirty (30) dayperiod.

(b)           After the Closing, upon reasonableprior notice, Seller and its representatives shall be permitted reasonableaccess, during normal business hours, to and to make inspection of Buyer’sbooks and records regarding the Purchased Assets, so long as such records aremaintained by Buyer in accordance with its customary records retention policy,and to make copies thereof as reasonably necessary to allow Seller to obtaininformation in Buyer’s possession regarding the Purchased Assets (but excludingattorney work product or other privileged communications) for the limitedpurposes of preparing Seller’s books and records (including Tax Returns)relating to the Purchased Assets.  Sellershall pay Buyer’s reasonable out-of-pocket costs and expenses in connectionwith satisfying such requests.

**Section 6.08. RWIS Data Access**.  From the Closing Date and until April 30,2007, Seller will cooperate and assist Buyer in acquiring any roadwayinformation sensor data (“RWIS Data”) from any Customer or customer of Sellerbeing provided services by Buyer pursuant to a Subcontract (a “SubcontractCustomer”) that, despite its commercially reasonable efforts, Buyer is unableto obtain directly from such Customer or Subcontract Customer.  To the extent it is contractually or legallypermitted to do so, Seller will provide Buyer with access to the RWIS Data inthe most expedient manner possible. Buyer shall be responsible for payment of any reasonable transmission orhardware costs incurred in connection with the acquisition of such RWIS Data.

**ARTICLEVIICONDITIONS TO CLOSING**

**Section7.01.  Conditions to Obligation of Buyer**.  The obligation of Buyer to consummate theClosing under this Agreement is subject to the satisfaction of all of thefollowing conditions, compliance with which, or the occurrence of which, may bewaived in writing by Buyer in its sole discretion.

(a)           ***Accuracy ofRepresentations***.  All ofthe representations and warranties of Seller in this Agreement (consideredcollectively), and each of these representations and warranties (consideredindividually), shall have been accurate in all material respects as of the dateof this Agreement, and shall be accurate in all material respects as of thetime of the Closing as if then made, without giving effect to any supplement tothe Disclosure Schedules, except that those representations and warranties thatare qualified by terms such as “material” or “Material Adverse Effect” shall betrue and correct in all respects.  On theClosing Date, Seller shall have delivered to Buyer a certificate, dated as ofthe Closing Date and signed by an executive officer of Seller, as to thematters set forth in this Section.

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(b)           ***Seller’s Performance***.  All of the covenants and obligationsthat Seller is required to perform or to comply with pursuant to this Agreementat or prior to the Closing (considered collectively), and each of thesecovenants and obligations (considered individually), shall have been dulyperformed and complied with in all material respects.  On the Closing Date, Seller shall have deliveredto Buyer a certificate, dated as of the Closing Date and signed by an executiveofficer of Seller, as to the matters set forth in this Section.

(c)           [Intentionally omitted]

(d)           ***Officer’s Certificate***.  Seller shall have delivered to Buyer acertificate of an executive officer of Seller, dated as of the Closing Date,certifying as to the articles of incorporation and bylaws of Seller and to theresolutions of Seller’s Board of Directors and sole shareholder authorizing theexecution, delivery and performance of this Agreement and the relatedagreements.

(e)           ***Opinion of Counsel***.  Seller shall have delivered to Buyer anopinion of its General Counsel, substantially in the form attached hereto asExhibit D.

(f)            ***Delivery of FinancialStatements***.  Seller shallhave delivered to Buyer the Financial Statements referenced inSection 3.14.

(g)           ***Delivery of EmployeeLeasing Agreement***.  Sellershall have executed and delivered to Buyer the Employee Leasing Agreementreferred to in Section 5.02.

(h)           ***Delivery of Product MarketingAgreement***.  QTT shall haveexecuted and delivered to Buyer the Product Marketing Agreement referred to inSection 5.03.

(i)            [Intentionally omitted]

(j)            ***No Material Adverse Change***.  Since December 31, 2005, there shall nothave been adverse changes in the business, operations, financial position orassets of the Business which would have, individually or in the aggregate, aMaterial Adverse Effect.

(k)           ***Due Diligence***.  Buyer shall have completed its due diligenceas described in Section 5.09 hereof, and the results of such due diligenceshall be satisfactory to Buyer, in its sole discretion.

(l)            ***Legality; GovernmentalAuthorization***.  Theacquisition of the Purchased Assets and the consummation of the othertransactions contemplated hereby shall not be enjoined or prohibited by anyapplicable law.

(m)          ***Litigation***.  No action, suit or proceeding shall bepending before any court or quasi-judicial or administrative agency of anyfederal, state, local or foreign jurisdiction or before any arbitrator whereinan unfavorable injunction, judgment, order, decree, ruling or charge would(i) prevent consummation of any of the transactions contemplated by thisAgreement, (ii) cause any of the transactions contemplated by thisAgreement to be rescinded following consummation or (iii) affect adverselythe right of

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Buyer to own thePurchased Assets or assume the Customer Contracts and Other Agreements ascontemplated herein (and no such injunction, judgment, order, decree, ruling,or charge shall be in effect).

(n)           ***Certificate of GoodStanding***.  Seller shallhave delivered to Buyer a certificate of good standing for Seller issued by theSecretary of State of the State of Missouri as of a date reasonably close tothe Closing Date.

(o)           ***Board of DirectorsApproval.***  The acquisitionof the Purchased Assets and the consummation of the other transactionscontemplated hereby shall have been approved by the Board of Directors ofBuyer.

(p)           ***Bill of Sale, Assignmentsand Transfers; Lien Releases***. Seller shall have executed and delivered to Buyer a Bill of Sale,Assignment and Assumption Agreement (the “Bill of Sale”) with respect to thePurchased Assets, substantially in the form of Exhibit E hereto, effectiveas of the Effective Time, and such other good and sufficient bills of sale andother instruments of transfer as shall be necessary to assign and transfer toand vest in Buyer good and valid title to all of the Purchased Assets, free andclear of any and all liabilities, liens, claims, rights, restrictions ontransfer and encumbrances except any Permitted Liens, and shall have deliveredto Buyer a release of any encumbrances on the Purchased Assets, including butnot limited to those identified on Schedule 3.16 but excluding anyPermitted Liens, effective as of the Effective Time.

(q)           ***Other Documents***.  Seller shall have delivered to Buyer allother documents reasonably requested by Buyer and contemplated by thisAgreement or required to be delivered by Seller to Buyer pursuant to thisAgreement and not previously delivered.

**Section7.02.  Conditions to Obligation of Seller**.  The obligations of Seller to consummate theClosing under this Agreement are subject to the satisfaction of all of thefollowing conditions, compliance with which, or the occurrence of which, may bewaived in writing by Seller in its sole discretion.

(a)           ***Accuracy ofRepresentations***.  All ofBuyer’s representations and warranties in this Agreement (consideredcollectively), and each of these representations and warranties (consideredindividually), shall have been accurate in all material respects as of the dateof this Agreement, and shall be accurate in all material respects as of thetime of the Closing as if then made, except that those representations andwarranties that are qualified by terms such as “material” or “Material AdverseEffect” shall be true and correct in all respects.

(b)           ***Buyer’s Performance***.  All of the covenants and obligationsBuyer is required to perform or to comply with pursuant to this Agreement at orprior to the Closing (considered collectively), and each of these covenants andobligations (considered individually), shall have been duly performed andcomplied with in all material respects.

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(c)           ***Legality; GovernmentalAuthorization; Litigation***. The acquisition of the Purchased Assets and the consummation of theother transactions contemplated hereby shall not be enjoined or prohibited byany applicable law.  No action, suit orproceeding shall be pending before any court or quasi-judicial or administrativeagency of any federal, state, local or foreign jurisdiction or before anyarbitrator wherein an unfavorable injunction, judgment, order, decree, rulingor charge would (i) prevent consummation of any of the transactionscontemplated by this Agreement, (ii) cause any of the transactionscontemplated by this Agreement to be rescinded following consummation or(iii) affect adversely the right of Buyer to own the Purchased Assets orassume the Customer Contracts and Other Agreements as contemplated herein (andno such injunction, judgment, order, decree, ruling or charge shall be ineffect).

(d)           ***Delivery of EmployeeLeasing Agreement***.  Buyershall have executed and delivered to Seller the Employee Leasing Agreementreferred to in Section 5.02.

(e)           ***Delivery of ProductMarketing Agreement***.  Buyershall have executed and delivered to QTT the Product Marketing Agreementreferred to in Section 5.03.

(f)            [Intentionally omitted]

(g)           ***Bill of Sale***.  Buyer shall have delivered to Seller the Billof Sale referred to in Section 7.01(p), effective as of the EffectiveTime.

(h)           ***Purchase Price***.  Buyer shall have paid the Closing Payment toSeller pursuant to Section 2.06(a) hereof.

(i)            ***Other Documents***.  Buyer shall have delivered to Seller allother documents reasonably requested by Seller and contemplated by thisAgreement or required to be delivered by Buyer to Seller pursuant to thisAgreement and not previously delivered.

**ARTICLEVIIISURVIVAL AND INDEMNIFICATION**

**Section8.01.  Survival**.  The representations and warranties of theParties contained in this Agreement, any related agreement or in anycertificate delivered pursuant hereto, and any covenants and obligations of theParties contained in this Agreement, any related agreement or in anycertificate delivered pursuant hereto which are to be performed prior to theClosing, shall survive the Closing for a period of eighteen (18) months, exceptfor those relating to Sections 3.01, 3.02, 3.13, 3.16 and 3.21 which willsurvive until the one hundred eighty (180) days following the expirationof the applicable statute of limitation. The covenants and obligations of the Parties contained in thisAgreement, any related agreement or in any certificate delivered pursuanthereto which are to be performed after the Closing shall survive the Closingindefinitely.

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**Section 8.02. Indemnification.**

(a)           Subject to the limitations set forthherein, Seller hereby agrees to indemnify Buyer against, and agree to holdBuyer harmless from, any loss, liabilities, fines, penalties or assessmentsincurred or suffered by Buyer arising out of:

(i)            the failure of Seller to satisfy,discharge or pay any Liability related to the Purchased Assets or the Businesswhich was incurred or accrued prior to the Effective Time, or which wasincurred or accrued after the Effective Time in connection with or related tothe Purchased Assets or the Business prior to the Effective Time;

(ii)           Seller’s operation or conduct of theBusiness and/or ownership or use of the Purchased Assets prior to the EffectiveTime;

(iii)          any misrepresentation or breach ofwarranty by Seller in this Agreement or in any certificate delivered hereunderor any breach of covenant or agreement made or to be performed by Sellerpursuant to this Agreement;

(iv)          any claim or litigation involvingSeller that is pending as of the Effective Time with respect to the PurchasedAssets or the Business or that arises out of the conduct of the Business bySeller prior to the Effective Time; and

(v)           any claim or litigation related tothe employment practices of Seller prior to the Effective Time or anyindividual’s employment by or with Seller or the termination of such employmentby Seller;

(vi)          the failure to file any Tax Returnsand/or the failure to pay any Taxes incurred or arising prior to or as of theEffective Time or incurred or accrued after the Effective Time in connectionwith or relating to the Business and/or the Purchased Assets prior to theEffective Time, including but not limited to those identified on Schedule 3.13.

(b)           Buyerhereby indemnifies Seller against, and agrees to hold Seller harmless from, anyloss incurred or suffered by Seller arising out of:

(i)            the failure of Buyer to satisfy ordischarge any Forward Looking Obligation;

(ii)           any misrepresentation or breach ofwarranty by Buyer in this Agreement or in any certificate delivered hereunderor any breach of covenant or agreement made or to be performed by Buyerpursuant to this Agreement; and

(iii)          any claim or litigation arising out ofBuyer’s operation of the Business and/or ownership or use of the Purchased Assetsafter the Effective Time.

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**Section8.03.  Time Limitation on Indemnification**.  Except for claims relating toSections 3.01, 3.02, 3.13, 3.16 and 3.21 and claims relating to covenantsand obligations contained in this Agreement which are to be performed after theClosing, no claim may be made and no suit may be instituted by Buyer or Sellerunder Sections 8.02(a)(iii) or 8.02(b)(ii) of this Agreement after eighteen(18) months from the Effective Time.  Inregard to all other claims relating to this Agreement, including, but notlimited to claims relating to Sections 3.01, 3.02, 3.13, 3.16 and 3.21 andclaims relating to covenants and obligations contained in this Agreement, suchclaims may be made or suit instituted by Buyer or Seller only until one hundredeighty (180) days following the expiration of the applicable statute oflimitation.

**Section8.04.  Third Party Claims, Etc**.  Promptly after the receipt by any Indemniteeof a notice of the commencement of any action or other claim against anIndemnitee by a third party, an Indemnitee shall, if a claim with respectthereto is or may be made by the Indemnitee against any Indemnifying Partypursuant to this Article VIII, give such Indemnifying Party written noticeof the nature and basis of such claim, but the failure to notify anIndemnifying Party will not relieve the Indemnifying Party of any Liabilitythat it may have to any Indemnitee, except to the extent that the IndemnifyingParty demonstrates that the defense of such action is prejudiced by the Indemnitee’sfailure to give such notice.  Prior tothe assumption by the Indemnifying Party of the defense of such claim asdescribed in the next sentence, the Indemnitee will defend against such claim(provided that the Indemnitee may not settle such claim).  The Indemnifying Party shall have the rightto defend such claim, at the Indemnifying Party’s expense and with counsel ofits choice, which counsel is reasonably satisfactory to the Indemnitee.  So long as the Indemnifying Party isconducting the defense of such claim as provided in the immediately precedingsentence, the Indemnitee may retain separate co-counsel at its sole cost andexpense and may participate in defense of such claim.  Provided, however, if there is or may be aconflict of interest between the Indemnifying Party and the Indemnitee, theIndemnitee may retain separate counsel at the cost and expense of theIndemnifying Party.  In the event theIndemnifying Party does not assume defense of such claim as so provided, theIndemnitee may defend against such at the Indemnifying Party’s cost andexpense.  Regardless of which party shallassume the defense of such claim, each party shall provide to the other partyon request all information and documentation reasonably necessary to defendsuch claim and shall provide reasonable access to all books, records andpersonnel in its possession or under its control which would have a bearing onthe defense of such claim.  For purposesof this Section, “Indemnitee” shall mean the party seeking indemnificationunder this Article VIII, and “Indemnifying Party” shall mean the partyfrom whom indemnification is sought under this Article VIII.

**Section 8.05. Certain Other Indemnity Matters**.

(a)           Upon making any payment to anIndemnitee for any indemnification claim pursuant to this Article VIII,the Indemnifying Party shall be subrogated, to the extent of such payment, toany rights which the Indemnitee may have against other Persons with respect tothe subject matter underlying such indemnification claim.

(b)           If after an indemnification paymentis made hereunder, the Party to which such payment is made receives insuranceproceeds in respect of the loss, such amount shall promptly be remitted to theIndemnifying Party.

 

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(c)           Notwithstanding the foregoing, exceptas provided by Section 8.02(a)(i), 8.02(a)(iv), 8.02(a)(v) and 8.02(a)(vi), theSeller shall have no obligation to indemnify Buyer with respect to any breachof a representation or warranty contained herein or in any certificatedelivered by the Seller pursuant hereto unless and until, and only to theextent that, the aggregate of all such individual losses incurred or sustainedby all Buyer with respect to which Buyer is entitled to indemnification withrespect to such breach of a representation or warranty exceeds $20,000, inwhich case the Seller shall only be liable for the amount by which all suchlosses exceed such amount and (ii) the aggregate liability of the Seller toindemnify the Buyer for losses with respect to any breach of a representationor warranty contained herein or in any certificate delivered by the Sellerpursuant hereto shall in no event exceed the Purchase Price; provided,that for purposes of determining whether any breach of a representation orwarranty has occurred with respect to a claim for indemnification or for thepurposes of measuring losses, such representations and warranties shall bedeemed to have been made without any materiality, Material Adverse Effect orsimilar qualifications and without any dollar thresholds.

**ARTICLEIXTERMINATION**

**Section9.01.  Termination Events.**  Subject to the provisions ofSection 9.02, this Agreement may, by written notice given at or prior tothe Closing Date in the manner hereinafter provided, be terminated andabandoned only as follows:

(a)           By Seller upon written notice, if amaterial default or breach shall be made by Buyer with respect to the due andtimely performance of any of Buyer’s covenants and agreements contained herein,or with respect to the due compliance with any of Buyer’s representations andwarranties contained in Article IV, and such default cannot be cured prior tothe Closing Date and has not been waived;

(b)           By Buyer, upon written notice, if amaterial default or breach shall be made by Seller with respect to the due andtimely performance of any of its covenants and agreements contained herein, orwith respect to the due compliance with any of the representations andwarranties of Seller contained in Article III, and such default cannot becured prior to the Closing Date and has not been waived;

(c)           By Buyer, in the event that anyupdate, amendment or modification pursuant to the terms of Sections 5.07and 5.08 hereof reflects or results in a Material Adverse Effect;

(d)           By mutual written consent of Buyerand Seller; or

(e)           By any Party, without further actionof such Party, if the conditions to such Party’s obligation to consummate theClosing (as set forth in Article VII) shall not have been satisfied byclose of business on August 31, 2006.

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**Section 9.02. Effect of Termination**. In the event this Agreement is terminated pursuant to Section 9.01,all further rights and obligations of the Parties hereunder shall terminatewithout liability on the part of any Party, except that the obligations underthe Non-Disclosure Agreement, shall survive. Notwithstanding the foregoing, the rights of the terminating Party topursue all legal remedies for the breach of any representation, warranty,covenant or agreement set forth in this Agreement prior to such terminationshall survive such termination, and the breaching Party shall be fully liablefor any and all damages, costs and expenses sustained or incurred by theterminating Party as a result of such breach.

**ARTICLEXMISCELLANEOUS**

**Section10.01.  Notices**.  All notices, requests and othercommunications to any Party hereunder shall be in writing (including facsimiletransmission) and shall be given by registered or certified mail (postageprepaid, return receipt requested), nationally-recognized overnight deliveryservice, or personally delivered to the address provided below or sent byfacsimile transmission (with verification thereof by the sender) to thefacsimile number provided below:
| If to Seller:   |   | Surface Systems, Inc.                 |
|-----------------|--------|---------------------------------------|
|            |   | 4021 Stirrup  Creek Drive, Suite 100  |
|            |   | Durham, NC 27703                      |
|            |   | Attention: Mr.  Bruce Reimer          |
|            |   | Telephone:  919-433-8263              |
|            |   | Facsimile:  919-361-2948              |
|            |   |                                  |
| with a copy to: |   | Quixote Corporation                   |
|            |   | 35 East Wacker,  Suite 1100           |
|            |   | Chicago, IL  60601                    |
|            |   | Attention: Ms.  Joan Riley            |
|            |   | Telephone:  312-705-8410              |
|            |   | Facsimile:  312-467-0197              |
|            |   |                                  |
| If to Buyer:    |   | Data Transmission Network Corporation |
|            |   | 9110 West Dodge  Road, Suite 200      |
|            |   | Omaha, NE 68114                       |
|            |   | Attention: Mr.  Richard Halle         |
|            |   | Telephone: (402)  399-6468            |
|            |   | Facsimile: (402)  882-4500            |

 

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| with a copy to: |   | Kutak Rock LLP                 |
|-----------------|--------|--------------------------------|
|            |   | 1650 Farnam  Street            |
|            |   | Omaha, NE 68102                |
|            |   | Attention: Ms.  Lisa A. Sarver |
|            |   | Telephone: (402)  346-6000     |
|            |   | Facsimile: (402)  346-1148     |

 

Unless otherwise specified herein, such notices orother communications shall be deemed received (a) on the date delivered,if delivered personally, (b) two (2) Business Days after being sent byFederal Express or other overnight courier of national reputation for next daydelivery, (c) one (1) Business Day after being delivered, if delivered byfacsimile and (d) two (2) Business Days after being sent, if sent by registeredor certified mail.  Any of the Partiesidentified above shall be entitled to specify a different address by givingnotice as aforesaid to each of the other Parties identified above.

**Section 10.02. Amendments and Waivers**.

(a)           Any provision of this Agreement maybe amended or waived if, but only if, such amendment or waiver is in writingand is signed, in the case of an amendment, by each Party to this Agreement, orin the case of a waiver, by the Party against whom the waiver is to beeffective.

(b)           No failure or delay by any Party inexercising any right, power or privilege hereunder shall operate as a waiverthereof nor shall any single or partial exercise thereof preclude any other orfurther exercise thereof or the exercise of any other right, power orprivilege.

**Section10.03.  Expenses**.  All costs and expenses of whatsoever natureincurred in connection with this Agreement shall be paid by the Party incurringsuch cost or expense.  Seller shall beresponsible for the payment of the costs and expenses of all transfer,documentary, gross receipts, sales and use taxes and similar liabilities, ifany, resulting from the sale of the Purchased Assets to Buyer and theconsummation of the transactions contemplated by this Agreement, other thantaxes based on Buyer’s income, which taxes shall be the sole responsibility ofBuyer.

**Section10.04.  Successors and Assigns;Assignment**.  The provisionsof this Agreement shall be binding upon and inure to the benefit of the Partieshereto and their respective successors and assigns, provided that no Party mayassign, delegate or otherwise transfer any of its rights or obligations underthis Agreement without the prior written consent of the other Partieshereto.  Any other purported assignmentor delegation in contravention of the foregoing shall be null and void.

**Section10.05.  Governing Law**.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Delaware applicable tocontracts made and to be performed entirely within such state.

**Section10.06.  Counterparts; Effectiveness**.  This Agreement may be executed and deliveredin any number of counterparts, each of which shall be an original, but all ofwhich

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together shall constitute one and the sameinstrument.  This Agreement may beexecuted and delivered via facsimile. This Agreement shall become effective when each Party hereto shall havereceived a counterpart hereof signed by the other Parties hereto.

**Section10.07.  Entire Agreement; Third PartyBeneficiaries**.  ThisAgreement, those agreements referred to hereunder and the Non-DisclosureAgreement constitute the entire agreement between the Parties with respect tothe subject matter hereof and supersede all prior agreements andunderstandings, both written and oral, between the Parties with respect to thesubject matter of this Agreement.  Theexhibits and schedules hereto are in integral part hereof and are incorporatedby reference herein for all purposes. Where required by context, a reference to a schedule shall be deemed torefer to such schedule as amended or updated. Neither this Agreement nor any provision hereof shall confer upon anyPerson other than the Parties hereto any rights or remedies hereunder.

**Section10.08.  Severability**.  If any provision of this Agreement or theapplication of any such provision to any Person or circumstance shall be heldinvalid, illegal or unenforceable in any respect by a court of competentjurisdiction, such invalidity, illegality or unenforceability shall not affectany other provision hereof.

**ARTICLE XIDEFINITIONS**

**Section 11.01. Definitions**.

 “*Affiliate*” means, with respect to any Person, any otherPerson that, directly or indirectly through one or more intermediaries,Controls, is Controlled by or is under common Control with, such Person.  For purposes of this definition, “Control”(including, with correlative meanings, the terms “Controlled by” and “under commonControl with”) means the possession, directly or indirectly, of the power todirect or cause the direction of the management or policies of a Person,whether through Ownership of stock, by contract or credit arrangement orotherwise.

“*Agreement*” hasthe meaning set forth in the preface of this Agreement.

*“Assignment Consent Customer”* hasthe meaning set forth in Section 2.07 hereof.

“*Best Efforts*”are the commercially reasonable efforts that a prudent person desirous ofachieving a result would use in similar circumstances to achieve that result asexpeditiously as possible.

“*Bill of Sale*”has the meaning set forth in Section 7.01(p) hereof.

*“Business”*  has the meaning set forth in the preface ofthis Agreement.

“*Business Day*”means any day, other than a Saturday or Sunday or any other day on which banksare required or authorized to close in Omaha, Nebraska.

“*Buyer*” has themeaning set forth in the preface of this Agreement.

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*“Claims”* has the meaning setforth in Section 2.01(l) hereof.

“*Closing*” has themeaning set forth in Section 2.05 hereof.

“*Closing Date*”has the meaning set forth in Section 2.05 hereof.

“*Closing Payment*”has the meaning set forth in Section 2.06(a) hereof.

 “*Code*” means the Internal Revenue Code of 1986, as amended.

“*Confidential Information*”means any information that is not already generally available to the publicconcerning the business and operations of Buyer and Seller and their respectiveAffiliates insofar as such information relates to the Purchased Assets and/orthe Business or Seller’s use of such information in connection with thePurchased Assets and/or the Business, or otherwise relating to thistransaction.  Confidential Informationshall include, without limitation, information relating to business operations(including customers, suppliers, equipment, services of employees, financialinformation or methods of operation), know-how, trade secrets, technical andeconomic data, computer programs, systems documentation, designs, procedures,formulas, improvements, ideas (including patent information), copyrights orpublications of a confidential nature pertaining to a Party, its products andservices or its customers.  Confidential Information shall not includeinformation which (a) is now, or hereafter becomes, through no act or failureto act on the part of Seller, generally known or available to the public; (b)is furnished to others by Buyer without restriction on disclosure; or (c) ishereafter rightfully furnished to Seller by a third party without, to theKnowledge of Seller, any breach of any confidentiality obligation to Buyer.

*“Consent Customers”* has the meaning set forth in Section 2.07hereof.

*“Consent Holdback”* has themeaning set forth in Section 2.06(b) hereof.

*“Consent Revenue”* has the meaning set forth in Section 2.07hereof.

“*Customers*” hasthe meaning set forth in Section 2.01(a) hereof.

*“Customer Contracts”* has themeaning set forth in Section 2.01(a) hereof.

*“Data Bases”* has the meaning setforth in Section 2.01(c) hereof.

“*Disclosure Schedules*”has the meaning set forth in the preface to Article III herein.

 “*Effective Time*” has the meaning set forth inSection 2.05 hereof.

*“Employees”* has the meaning setforth in Section 3.15(d) hereof.

“*Employee Benefit Plan*” means any(a) nonqualified deferred compensation or retirement plan or arrangement,(b) qualified defined contribution retirement plan or arrangement which isan Employee Pension Benefit Plan, (c) qualified defined benefit retirementplan or arrangement which is an Employee Pension Benefit Plan (including anymultiemployer pension plan as defined in the Taft-Hartley Act of 1947), or

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(d) Employee WelfareBenefit Plan or material fringe benefit or other retirement, bonus or incentiveplan or program.

*“Employee Leasing Agreement”* hasthe meaning set forth in Section 5.02 hereof.

“*Employee PensionBenefit Plan*” has the meaning set forth in ERISA §3(2).

“*Employee WelfareBenefit Plan*” has the meaning set forth in ERISA §3(1).

“*ERISA*” meansthe Employee Retirement Income Security Act of 1974.

“*Excluded Assets*”has the meaning set forth in Section 2.02 herein.

*“Excluded Hardware”* has themeaning set forth in Section 2.02(d) hereof.

 “*Financial Statements*” has the meaning set forth inSection 3.14 hereof.

*“Final Consent Date”* has themeaning set forth in Section 2.06(b)(iv) hereof.

*“First Consent Date”* has themeaning set forth in Section 2.06(b)(i) hereof.

“*Forward LookingObligations*” has the meaning set forth in Section 2.03 herein.

“*Governmental Authority*”means any branch or agency of government, domestic or foreign, havingjurisdiction over the Parties or the subject matter of this Agreement.

*“Hardware”* has the meaning setforth in Section 2.01(e) hereof.

“*Income Taxes*”means any federal, state, local or foreign income or franchise taxes or othertaxes imposed on or with respect to net income or capital, together with anyinterest or penalties or additions to tax imposed with respect thereto, and anyobligations under any arrangements with respect to any Income Taxes.

“*Income Tax Returns*”means any federal, state, local or foreign Tax Returns required to be filedwith any Taxing Authority that pertains to Income Taxes.

“*Indemnifying Party*”has the meaning set forth in Section 8.04 hereof.

“*Indemnitee*” hasthe meaning set forth in Section 8.04 hereof.

*“IP Rights”* has the meaning setforth in Section 2.01(d) hereof.

“*Knowledge*”means the actual knowledge of such party or, in the case of an entity, theofficers of such party with responsibility for the matter in question afterreasonable investigation.

 “*Liability*” means any liability (whether known or unknown,whether asserted or unasserted, whether absolute or contingent, whether accruedor unaccrued, whether liquidated or unliquidated, and whether due or to becomedue), including but not limited to any liability for Taxes.

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“*Material Adverse Effect*”means any consequence, individually or in the aggregate, which has a materialand adverse impact on the financial position, assets, liabilities, business orresults of operations of Buyer, Seller, the Business and/or the PurchasedAssets or which materially affects the ability of either Party to perform itsobligations under this Agreement or to consummate the transactions contemplatedby this Agreement.  Without limiting thegenerality of the foregoing, any change in the financial position, assets,liabilities, business or results of operations which results in a loss inexcess of $10,000 shall be conclusively presumed to have a Material AdverseEffect.

*“Non-Consenting Customer”* has themeaning set forth in Section 2.07 hereof.

 “*Ordinary Course of Business*” means the ordinary course ofbusiness consistent with past custom and practice (including with respect toquantity and frequency).

*“Other Agreements”*has themeaning set forth in Section 2.01(h) hereof.

*“Other Equipment”* has the meaningset forth in Section 2.01(f) hereof.

 “*Party*” and “*Parties*” havethe meaning set forth in the preface to this Agreement.

*“Permits”* has the meaning setforth in Section 2.01(j) hereof.

“*Permitted Liens*”means liens for Taxes not yet due and payable.

“*Person*” meansan individual, a partnership, a corporation, a limited liability company, anassociation, a joint stock company, a trust, a joint venture, an unincorporatedorganization or a governmental entity (or any department, agency or politicalsubdivision thereof).

*“Prepaid Fees”* has the meaningset forth in Section 2.04 hereof.

*“Product Marketing Agreement”* hasthe meaning set forth in Section 5.03 hereof.

*“Proposals”* has the meaning setforth in Section 2.01(a) hereof.

 “*Purchased Assets*” has the meaning set forth inSection 2.01 hereof.  PurchasedAssets shall not include any other asset other that those described above and,specifically, shall not include (i) the Excluded Assets, (ii) theorganizational documents, qualifications to conduct business as a foreigncorporation, arrangements with registered agents relating to foreignqualifications, taxpayer and other identification numbers, seals, minute books,shareholder records, and other documents relating to the organization, maintenanceand existence of Seller as a corporation or (iii) any of the rights ofSeller under this Agreement.

“*Purchase Price*”has the meaning set forth in Section 2.04 hereof.

*“QTT”* has the meaning set forthin Section 5.03 hereof.

*“Quixote”* has the meaning setforth in Section 3.01 hereof.

* “RestrictedPeriod”* has the meaning set forth in Section 6.06(a) hereof.

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*“Restricted Territory”*has themeaning set forth in Section 6.06(a) hereof.

*“RWIS Data”* has the meaning setforth in Section 6.08 hereof.

*“Second Consent Date”* has themeaning set forth in Section 2.06(b)(ii) hereof.

 “*Security Interest*” means any lien, pledge, encumbrance,charge or other security interest, other than (a) mechanic’s, materialmen’s,and similar liens, (b) liens for Taxes not yet due and payable or forTaxes that the taxpayer is contesting in good faith through appropriateproceedings, and (c) other liens which secure the performance of ForwardLooking Obligations.

 “*Seller*” has the meaning set forth in the preface of thisAgreement.

*“Self-Help Code”* means any backdoor, time bomb, drop dead device, or other software routine designed todisable a computer program automatically with the passage of time or under thepositive control of a party other than the owner or authorized user of thesystem.

“*Software and Licenses*”has the meaning set forth in Section 2.01(b) hereof.

*“St. Louise Facility”* has themeaning set forth in Section 3.11 hereof.

*“St. Louis Real Estate Lease”* hasthe meaning set forth in Section 3.11 hereof.

*“Storm Beacon Customers”* has themeaning set forth in Section 2.02(c) hereof.

*“Subcontract”* has the meaning setforth in Section 5.04 hereof.

*“Subcontract Consent Customer”*has the meaning set forth in Section 2.07 hereof.

*“Subcontract Customer”* has themeaning set forth in Section 6.08 hereof.

*“Supplies”* has the meaning setforth in Section 2.01(g) hereof.

 “*Tax*” or “*Taxes*” meanswithout limitation, any federal, state, local, foreign or other net income,gross income, gross receipts, license, lease, payroll, employment, excise,severance, stamp, occupation, premium, ad valorem, windfall profits,environmental (including taxes under Section 59A of the Code), customsduties, capital stock, franchise, service, service use, profits, withholding,social security (or similar), unemployment, disability, real property, customsduties, personal property, sales, use, transfer, registration, value added,alternative or add-on minimum, estimated or other tax of any kind whatsoever,including any interest, penalty or addition thereto, whether disputed or not;and any obligations under any agreements or arrangements with respect to anyTaxes described herein.

“*Taxing Authority*”means any Governmental Authority, domestic or foreign, having jurisdiction overthe assessment, determination, collection or other imposition of Taxes.

“*Tax Returns*”means any returns, declarations, reports, information returns, claims forrefund, forms, statements or other documents (including any related orsupporting information or

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schedules and any amendment thereof) required to befiled with any Taxing Authority in respect of any Taxes.

*“Third Consent Date”* has themeaning set forth in Section 2.06(b)(iii) hereof.

“*Transaction Proposals*”has the meaning set forth in Section 5.06 hereof.

*“Unauthorized Code”* means anyvirus, Trojan horse, worm, or other software routines or hardware componentsdesigned to permit unauthorized access; to disable, erase, or otherwise harmsoftware, hardware, or data; or to perform any other similar actions.

*“Unrelated Assets”* has the meaningset forth in Section 2.02(h) hereof.

*“Warranties”*has the meaning setforth in Section 2.01(k) hereof.

{SIGNATURE PAGEFOLLOWS}

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IN WITNESS WHEREOF, the Parties hereto have causedthis Agreement to be duly executed as of the day and year first above written.
| ** ** | **BUYER:**                             |
|------------|----------------------------------------|
| ** ** |                                   |
|       | DATA TRANSMISSION NETWORK  CORPORATION |
|       |                                   |
|       |                                   |
|       | By                                     | /s/ Richard G. Halle |   |
|       |                                   | Richard G. Hallé, Chief Financial Officer |
|       |                                   |
|       |                                   |
| ** ** | **SELLER:**                            |
| ** ** |                                   |
|       | SURFACE SYSTEMS, INC.                  |
|       |                                   |
|       |                                   |
|       | By                                     | /s/ Bruce Reimer |   |
|       |                                   | Bruce Reimer, Executive Vice President |
|            |                                        |  |  |  |

 

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