Unassociated Document


    ASSET
PURCHASE AGREEMENT

    


    This
ASSET PURCHASE AGREEMENT (this “Agreement”) is made
and entered into as of December 21, 2009 by and among RUBICON INTEGRATION, LLC,
a Delaware limited liability company (“Seller”), FORTRESS
INTERNATIONAL GROUP, INC., a Delaware corporation (“Parent”), and RUBICON
ACQUISITION COMPANY, LLC, a Delaware limited liability company (“Buyer”).

     

    RECITALS

     

    A.           Seller
desires to sell, assign, transfer, convey and deliver to Buyer, and Buyer
desires to purchase and acquire from Seller, substantially all of the assets of
Seller, and Buyer has agreed to assume the Assumed Liabilities (as defined
below) in accordance with the provisions of this Agreement.

     

    B.           Seller
is a wholly-owned subsidiary of Parent.

     

    NOW,
THEREFORE, in consideration of the mutual promises, covenants and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:

     

    ARTICLE
I

    DEFINITIONS

     

    1.1   Definitions.  As
used in this Agreement, the following terms have the following
meanings:

     

    “2007 Employment
Agreements” means those certain Employment Agreements between Seller and
each of James Embley, Eric Holzworth and William Pirrone each dated November 30,
2007, as amended.

     

    “2008 Earn-Out Note”
means that certain promissory note made by Parent to Berkowitz, Trager &
Trager, Trustee dated May 22, 2009 in the original principal amount of $550,000
(which as of the date hereof has an outstanding principal balance of
$235,714.32).

     

    “AAA” has the meaning
set forth in Section 8.6.

     

    “Affiliate” of any
Person means any other Person that directly or indirectly, through one or more
intermediaries, Controls, is Controlled by, or is under Common Control with,
such first Person.

     

    “Agreement” has the
meaning set forth in the preamble to this Agreement.

     

    “Assumed Bonus
Obligations” means the amount of any and all monetary bonuses earned by
James Embley, William Pirrone and Eric Holzworth pursuant to the 2007 Employment
Agreements through date hereof.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    “Assumed Earn-Out
Payments” means those certain earn-out payments set forth in Section 2.4
of the Original Acquisition Agreement.

     

    “Assumed Liabilities”
means (i) all Current Liabilities of Seller as of the Closing Date as finally
determined pursuant to Section 2.6, (ii) all Liabilities arising after the
Closing under the Contracts and leases included in the Purchased Assets as set
forth on Schedules 2.1(a)(iii) and 2.1(a)(iv), (iii) all Liabilities relating to
the Assumed Bonus Obligations, (iv) all Liabilities relating to the Assumed
Earn-Out Payments, (v) all Liabilities relating to the 2007 Employment
Agreements, (vi) all Liabilities relating to the 2008 Earn-Out Note, and (vii)
all Liabilities to Hired Employees arising after the Closing Date.

     

    “Business” has the
meaning set forth in Section 6.6(b).

     

    “Business Day” means
any day other than a Saturday or Sunday or any day banks in the State of New
York are authorized or required to be closed.

     

    “Buyer” has the
meaning set forth in the preamble to this Agreement.

     

    “Buyer Indemnified
Parties” has the meaning set forth in Section 8.2.

     

    “Cash Consideration”
has the meaning set forth in Section 2.2(a).

     

    “Change of Control
Payments” has the meaning set forth in Section 3.8.

     

    “Closing” has the
meaning set forth in Section 2.3.

     

    “Closing Date” has the
meaning set forth in Section 2.3.

     

    “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder.

     

    “Consent” has the
meaning set forth in Section 3.4.

     

    “Contract” means any
contract, agreement, lease, license, commitment, understanding, franchise,
warranty, guaranty, mortgage, note, bond, option, warrant, right or other
instrument or consensual obligation, whether written or oral.

     

    “Control” (including,
with correlative meanings, the terms “Controlled by”, “Controlling” and “under
common Control with”) shall mean the possession, directly or indirectly, through
one or more intermediaries or otherwise, of any one or more of the following:
(i) in the case of a corporation, more than fifty percent (50%) of the
outstanding voting securities thereof; (ii) in the case of a partnership,
limited partnership, limited liability company or joint venture, the right to
more than fifty percent (50%) of the distributions therefrom (including
liquidating distributions); (iii) in the case of a trust or estate, more than
fifty percent (50%) of the beneficial interest therein; (iv) in the case of any
entity, more than fifty percent (50%) of the economic or beneficial interest
therein; or (v) in the case of any entity, the power or authority, through
ownership of voting securities, by contract or otherwise, to direct or cause the
direction of the management, activities or policies of the
entity.


    
      
         


      

      
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    “Current Assets” shall
mean all Purchased Assets of Seller, calculated under GAAP as historically
applied to the operations of the Seller, including all assets that comprise
contract and other receivables, work in progress and prepaid expenses, each as
set forth in reasonable detail on a schedule to be delivered to Buyer and dated
at least two business days prior to the date of this Agreement.

     

    “Current Liabilities”
shall mean those notes and accounts payable, accounts payable retainage, accrued
expenses and deferred revenue of Seller (but excluding the 2007 Employment
Agreements, the 2008 Earn-Out Note, the Assumed Bonus Obligations and the
Assumed Earn-Out Payments), calculated under GAAP as historically applied to the
operations of the Seller, as set forth in reasonable detail on a schedule to be
delivered to Buyer and dated at least two business days prior to the date of
this Agreement.

     

    “Damages” means any
and all claims, lawsuits, liabilities, losses, damages, costs and expenses,
including the reasonable fees and disbursements of counsel (including fees of
attorneys and paralegals, whether at the pre-trial, trial, or appellate level,
or in arbitration) and all amounts reasonably paid in investigation, defense, or
settlement of any of the foregoing. Damages shall be limited to the actual
damages suffered or incurred by a Party and in no event will any party hereto
have any liability to another party for any punitive, special, consequential,
indirect or incidental damages of any kind or nature including, but not limited
to, lost profits.

     

    “Designated Projects”
means (i) the Existing Projects, and (ii) any of the projects listed in the
Schedule of Sales Pipeline Projects, attached hereto as Schedule
I, for which Buyer is engaged to perform services pursuant to written
contracts entered into by Buyer within ninety (90) days after the Closing
Date.

     

    “Direct Claim” has the
meaning set forth in Section 8.3.

     

    “Direct Claim Counter
Notice” has the meaning set forth in Section 8.4.

     

    “Earn-Out Payment” has
the meaning set forth in Section 2.5.

     

    “Earn-Out Period” has
the meaning set forth in Section 2.5(c).

     

    “Earn-Out Worksheet”
has the meaning set forth in Section 2.5(a).

     

    “Encumbrance” means
any charge, claim, lien, pledge, security interest, voting agreement, option to
purchase, right of first refusal to purchase, and, in the case of real property,
easement, servitude, right of way, or similar restriction.

     

    “ERISA” has the
meaning set forth in Section 3.7.

     

     “Existing Projects”
mean those Contracts for the performance of services by Seller which are listed
in Schedule of Existing Projects attached hereto as Schedule
II.

     

    “Filing” has the
meaning set forth in Section 3.4.

     

    “Financial Statements”
has the meaning set forth in Section 3.5.


    
      
         


      

      
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    “GAAP” means United
States generally accepted accounting principles.

     

    “Governmental Entity”
means any U.S. or foreign federal, state, provincial or local governmental
authority, court, government or self-regulatory organization, commission,
tribunal or organization or any regulatory, administrative or other agency, or
any political or other subdivision, department or branch of any of the
foregoing.

     

    “Gross Profit” means
“Gross Profits” calculated under GAAP determined by using the Income Recognition
Method.

     

    “Income Recognition
Method” means the Percentage of Completion Method based on Costs Incurred
(calculated under GAAP).

     

    “Indemnifying Party”
has the meaning set forth in Section 8.3.

     

    “Intellectual
Property” means all U.S. and foreign intellectual property rights,
including patents, inventions, technology, discoveries, processes, know-how,
trademarks, service marks, trade names, brand names, domain names, corporate
names, logos, copyrights, and copyrightable works (including software and
related items), and trade secrets, and all registrations, applications,
continuations, continuations-in-part, divisions, provisionals, reissues,
re-examinations and similar protections relating thereto.

     

    “Knowledge” means (i)
with respect to Seller, the actual knowledge of Thomas Rosato and Timothy Dec,
after reasonable investigation by such persons, and (ii) with respect to Buyer,
the actual knowledge of James Embley, Eric Holzworth and William Pirrone, after
reasonable investigation by such persons.

     

    “Law” means any
domestic or foreign, federal, state, provincial or local statute, law,
ordinance, rule, regulation, order, writ, injunction, directive, judgment,
decree or other requirement of any Governmental Entity.

     

     “Legal Proceeding”
means any action, claim, lawsuit, arbitration, proceeding or
investigation.

     

    “Liability” includes
liabilities, debts or other obligations of any nature, whether known or unknown,
absolute, accrued, contingent, liquidated, unliquidated or otherwise, due or to
become due or otherwise, and whether or not required to be reflected on a
balance sheet prepared in accordance with GAAP.

     

    “Material Adverse
Effect” means a material adverse effect on the business, assets,
financial condition, results of operations or prospects of Seller, taken as a
whole; provided, however, that in no event shall any of the following be deemed,
either alone or in combination, to constitute, nor shall any of the following be
taken into account in determining whether there has been, a Material Adverse
Effect:  (i) any effect that results from changes in general economic
conditions or changes in securities markets in general, (ii) any effect that
results from general changes in the industries in which Seller operates, (iii)
any effect related to the public announcement or pendency of the transactions
contemplated by this Agreement, including, without limitation, (A) any actions
of competitors, or (B) any actions taken by or losses of employees, (iv) any
effect that results from any action taken pursuant to or in accordance with this
Agreement, or (v) any issue or condition otherwise known to the other party
prior to the date of this Agreement.


    
      
         


      

      
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    “Note” has the meaning
set forth in Section 2.2(e).

     

    “Notice of Claim” has
the meaning set forth in Section 8.3.

     

    “Ordinary Course of
Business” shall mean, with respect to the applicable Person, the specific
action is consistent with the past practices of the Person and is taken in the
ordinary course of the normal day-to-day operations of such Person.

     

    “Original Acquisition
Agreement” means that certain Membership Interest Purchase Agreement made
and entered into as of November 30, 2007 by and among Parent, as Buyer, Seller
and the original owners of Seller.

     

     “Parent” has the
meaning set forth in the preamble to this Agreement.

     

    “Parties” means the
parties to this Agreement, and “Party” means any of the Parties.

     

    “Permit” means any
permit, licenses, registrations or other authorization by any Governmental
Authority.

     

    “Permitted
Encumbrances” means (i) liens for taxes, assessments and other
governmental charges not yet due and payable or, if due, (A) not delinquent or
(B) being contested in good faith by appropriate proceedings; (ii) mechanics’,
workmen’s, repairmen’s, warehousemen’s, carriers’ or other liens arising or
incurred in the ordinary course of business; (iii) liens or title retention
arrangements arising under original purchase price conditional sales contracts
or equipment leases with third parties entered into in the ordinary course of
business; (v) with respect to real property, (A) easements, licenses, covenants,
rights-of-way and other similar restrictions, including, without limitation, any
other agreements or restrictions which would be shown by an investigation of
title to the extent and nature which a prudent buyer of property in the relevant
jurisdiction would carry out, (B) any conditions that may be shown by survey,
title report or physical inspection (whether or not made) and (C) zoning,
building and other similar restrictions, so long as none of (A) or (B) or (C)
prevent the use of such real property substantially as currently used by Seller
or materially affect the value of any such property.

     

    “Person” means any
individual, corporation, limited liability company, limited partnership, general
partnership, joint venture, trust, association, Governmental Entity or other
organization or entity.

     

     “Purchase Price” has
the meaning set forth in Section 2.2.

     

     “Revenue” means the
gross revenue of Buyer recognized using the Income Recognition Method determined
in accordance with GAAP.

     

     “Section 2.5(b)
Accountants” has the meaning set forth in Section
2.5(b).


    
      
         


      

      
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    “Section 2.5(b)
Notice” has the meaning set forth in Section 2.5(b).

     

    “SEC” means the
Securities Exchange Commission of the United States.

     

    “Seller” has the
meaning set forth in the preamble to this Agreement.

    


    “Seller Indemnified
Parties” has the meaning set forth in Section 8.2.

     

    “Seller Plan” has the
meaning set forth in Section 3.7.

     

    “Tax” or “Taxes” means all
United States federal, state, local and foreign income, profits, franchise,
gross receipts, payroll, sales, employment, use, property, real estate, excise,
value added, estimated, stamp, alternative or add-on minimum, environmental,
withholding and any other taxes, duties or assessments, together with all
interest, penalties and additions imposed with respect to such
amounts.

     

    “Tax Authority” means
any domestic, foreign, federal, national, state, county or municipal or other
local government, any subdivision, agency, commission or authority thereof, or
any quasi-governmental body exercising any taxing authority or any other
authority exercising Tax regulatory authority.

     

    “Tax Return” means any
return, report, information return or other document (including any related or
supporting information) required to be filed with any Tax Authority with respect
to Taxes, including information returns, claims for refunds of Taxes and any
amendments or supplements to any of the foregoing.

     

    “Third Party Claim”
has the meaning set forth in Section 8.3.

     

    ARTICLE
II

    PURCHASE
AND SALE OF THE PURCHASED ASSETS; EARN-OUT

     

    2.1  Purchased Assets and
Excluded Assets.

     

    (a)           Subject
to the terms and conditions hereof, at the Closing, Seller shall sell, transfer,
assign and deliver to Buyer, and Buyer shall purchase and accept from Seller,
all of Seller’s right, title and interests in and to the Purchased Assets, free
and clear of Encumbrances of any kind.  As used in this Agreement, the
“Purchased
Assets” means all of the following Seller’s properties and assets, but
excluding the Excluded Assets:

     

    (i)           the
tangible personal property (including, without limitation, machinery, equipment,
inventories of raw materials and supplies, manufactured and purchased parts,
goods in process and finished goods, furniture, automobiles, trucks, tractors,
trailers, tools, jigs, and dies, if any) set forth on Schedule
2.1(a)(i);

     

    (ii)          the
Intellectual Property set forth on Schedule
2.1(a)(ii);


    
      
         


      

      
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    (iii)        leases,
subleases, and rights thereunder set forth on Schedule
2.1(a)(iii);

     

    (iv)        the
Contracts set forth on Schedule
2.1(a)(iv) attached hereto;

     

    (v)         accounts
receivable, claims, deposits, prepayments, refunds, causes of action, choses in
action, rights of recovery, rights of set off, and rights of recoupment relating
to the Contracts set forth on Schedule
2.1(a)(iv); and

     

    (vi)        books,
records, ledgers, files, documents, correspondence, lists, plats, architectural
plans, drawings, and specifications, creative materials, advertising and
promotional materials, studies, reports, and other printed or written
materials.

     

    (b)           Notwithstanding
the provisions of Section 2.1(a), the following assets and properties are to be
retained by Seller and shall not constitute Purchased Assets (collectively, the
“Excluded
Assets”):

     

    (i)           cash
and cash equivalents (including marketable securities and short term
investments);

     

    (ii)          Seller’s
governing documents, qualifications to conduct business as a foreign
corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute books,
stock transfer books, blank stock certificates, and other documents relating to
the organization, maintenance, and existence of Seller as a limited liability
company;

     

    (iii)       
any of the rights of Seller under this Agreement;

     

    (iv)        
all right, title and interest to all insurance policies of Seller and all rights
of Seller to any insurance claims, refunds and proceeds thereunder;
and

     

    (v)          all
other assets of Seller.

    


    (c)           Notwithstanding
any other provision of this Agreement or any other writing to the contrary,
Buyer does not assume and has no responsibility for any Liabilities of Seller or
Parent of any kind other than the Assumed Liabilities (all such Liabilities
which are not being assumed by Buyer being referred to as the “Excluded
Liabilities”).

     

    2.2   The
aggregate purchase price to be paid to Seller for the Purchased Assets and the
Assumed Liabilities (the “Purchase Price”),
shall consist of the following:

     

     (a)           $1,000,000
in cash at the Closing, subject to adjustment as set forth below (the “Cash
Consideration”);

     

     (b)           $235,714.32
by means of Buyer’s assumption of Parent’s obligation for payment of the 2008
Earn-Out Note;


    
      
         


      

      
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    (c)           $104,711
by means of Buyer’s assumption of Seller’s obligation for payment of the Assumed
Bonus Obligations;

     

    (d)          $0
by means of Buyer’s assumption of Seller’s obligation for payment of the Assumed
Earn-Out Payments;

     

    (e)           $534,574.69
by the issuance by Buyer to Seller of a promissory note payable in equal monthly
installments over  an eighteen month period (commencing four (4)
months after the Closing) with interest at the rate of 4.0% per annum in the
form of Exhibit
A (the “Note”), which Note
shall be guaranteed by each of James Embley, William Pirrone and Eric Holzworth
by guaranty in the form of Exhibit A-1 (the
“Guaranty”);
and

     

    (f)           the
Earn-Out Payments, if any, determined and payable in accordance with the
provisions of Section 2.5.

     

    2.3  Closing.  The
closing of the purchase and sale of the Purchased Assets (the “Closing”) will take
place on the third Business Day following the satisfaction or waiver of the
conditions set forth in Article VII, or on such other date as may be agreed upon
by the Parties (the date on which the closing occurs being referred to as the
“Closing
Date”).

     

    2.4  Deliveries and Payments at
the Closing.

     

    (a)          At
the Closing, Buyer shall deliver or cause to be delivered to
Seller:

     

    (i)           the
Cash Consideration, by wire transfer of immediately available funds to such
account as shall have been designated by Seller;

     

    (ii)          the
amount set forth in Section 6.4(f), by wire transfer of immediately available
funds to such account as shall have been designated by Seller;

     

    (iii)         the
Note and Guaranty referred to in Section 2.2(e);

     

    (iv)         a
release from the Buyer and its Affiliates respecting the Assumed Earn-Out
Payments substantially in the form of Exhibit
B;

     

    (v)    
      resolutions of the Managers of Buyer
relating to this Agreement and the transactions contemplated by this
Agreement;

     

    (vi)   
     an assignment and assumption of the 2008 Earn-Out
Note;

     

    (vii) 
      consent to and waiver of the assignment of
the 2008 Earn-Out Note;

     

    (viii) 
     a separation and release agreement signed by each
of James Embley, Eric Holzworth and William Pirrone in the form of Exhibit H (each, a
“Separation
Agreement”); and


    
      
         


      

      
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    (ix)        
such other documents as Seller may reasonably request.

     

    (b)          At
Closing, Seller and Parent shall deliver or cause to be delivered to
Buyer:

     

    (i)           a
receipt for the payment of the Cash Consideration;

     

    (ii)          a
bill of sale in the form of Exhibit C-1 (the
“Bill of Sale”)
executed by Seller;

     

    (iii)         an
assignment and assumption agreement in the form of Exhibit C-2 (the
“Assignment and
Assumption Agreement”) executed by Seller;

     

    (iv) 
       assignments of all Intellectual
Property included in the Purchased Assets in the form of Exhibits D-1 and D-2
(collectively, the “IP
Assignment”) executed by Seller;

     

    (v)    
     an assignment of Seller’s rights under the Lease
in the form of Exhibits E-1 and E-1
(collectively, the “Lease Assignment”)
executed by Seller and consented to by Seller’s landlord;

     

    (vi)   
      a certificate in the form of Exhibit F of the
Chief Financial Officer of Parent, dated as of the Closing Date and attaching
(A) Seller’s formation documents and all amendments thereto, certified by the
Secretary of State of the jurisdiction of Seller’s formation; (B) a recent
certificate of good standing of Seller certified by the Secretary of State of
the jurisdiction of Seller’s formation and each other jurisdiction where Seller
is authorized to do business; and (C) resolutions of Parent’s board of directors
relating to this Agreement and the transactions contemplated by this
Agreement;

     

    (vii)   
    assignments of all 2007 Employment Agreements in the
form of Exhibit
G;

     

    (viii)  
    the third party consents set forth on Schedule ‎7.1(d);

     

    (ix)     
    releases of any Encumbrances affecting any of the
Purchased Assets;

     

    (x)   original stock
certificates for the stock in Parent to be issued to Messrs. Embley, Holzworth
and Pirrone, which certificates shall be free of any legends (except that such
stock has not been registered); and

     

    (xi)    
     such other documents, instruments and agreements
as Buyer reasonably requests for the purpose of consummating the transactions
contemplated by this Agreement.



    
      
         


      

      
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    2.5  Earn-Out
Payments.

     

    (a)           Delivery of Financial
Information.  Within thirty (30) days following the end of each
calendar quarter during the Earn-Out Period (as defined below), Buyer shall
deliver to Seller and Parent a work sheet (the “Earn-Out Worksheet”)
prepared in good faith by Buyer’s independent public accountants and certified
by the Buyer’s Chief Financial Officer, setting forth Buyer’s determination of
Gross Profit from the Designated Projects for the applicable portion of the
Earn-Out Period, together with all of the material elements of such calculation
and such other information and documentation as Seller may reasonably request to
assess the accuracy of the calculation.  Seller shall have the right,
at Seller’s expense, at reasonable times and upon reasonable notice, to examine,
and to have one representative, who shall initially be the Chief Financial
Officer of Parent, (the “Seller
Representative”) or Seller’s accountants examine, the books and records
of Buyer and Buyer’s accountants workpapers to determine whether the calculation
and payment of the Earn-Out Payment are in accordance with the provisions of
this Agreement.

     

    (b)           Disputes Regarding Earn-Out
Worksheet.  In the event that Seller disputes any amounts
reflected on any Earn-Out Worksheet, Seller shall notify Buyer in writing (such
notice, a “Section
2.5(b) Notice”), within 30 days after the delivery of the Earn-Out
Worksheet (the “Dispute Deadline”),
setting forth the amount, nature and basis of the dispute.  Within the
following 10 days, the parties shall use their reasonable best efforts to
resolve in good faith such dispute.  Upon their failure to do so,
Seller’s Representative and Buyer shall within 10 days from the end of such 10
day period jointly engage an independent accountant (one who has not had any
prior relationship with any of the Parties) (the “Section 2.5(b)
Accountants”).  The Section 2.5(b) Accountants shall be engaged
jointly by Buyer and Seller to decide the dispute with respect to the Earn-Out
Worksheet within 30 days from its appointment; such decision to be communicated
to both parties in writing. The Section 2.5(b) Accountants shall resolve the
dispute based solely on presentations by Buyer and Seller, and not by independent review
and shall render its decision (together with a brief explanation of the basis
therefor) to Buyer and Seller, as soon as reasonably practicable but in any
event not later than forty-five (45) business days following submission of the
dispute to it. The fee of the Section 2.5(b) Accountants shall be borne fifty
percent (50%) by Seller and fifty percent (50%) by Buyer unless the Section
2.5(b) Accountants decide, based on its determination with respect to the
reasonableness of the respective positions of Buyer and Seller that the fee
shall be borne in unequal proportions.  The Section 2.5(b) Accountants
shall have exclusive jurisdiction over, and resort to the Section 2.5(b)
Accountants as provided in this Section 2.5 shall be the sole recourse and
remedy of the parties against one another or any other Person with respect to,
any disputes arising out of or relating to the Earn-Out.  The decision
of the Section 2.5(b) Accountants shall be final and binding upon the parties
and accordingly a declaratory judgment by a court of competent jurisdiction may
be entered in accordance therewith.

     

    (c)           Earn-Out
Payment.  Buyer shall, on a quarterly basis, pay Seller an
earn-out payment (the “Earn-Out Payment”)
equal to seven and 50/100 (7.50%) percent of the Gross Profit from the
Designated Projects earned during the one-year period commencing on the Closing
Date and ending twelve months from the Closing Date (the “Earn-Out
Period”).  Such Earn-Out Payment shall be made within 15 days
of the earlier of the expiration of the Dispute Deadline without the delivery of
a Section 2.5(b) Notice or the decision of the Section 2.5(b) Accountants, as
applicable.  Such payments shall also include interest on the Earn-Out
Payment accruing from the expiration of the Dispute Deadline until and including
the date of payment, at a rate equal to two (2) percentage points over the Wall
Street Journal “Prime Rate”, as the same may be announced from time to time,
until the applicable payment has been paid in full.  Interest shall be
calculated based upon a 360-day year and based upon the unpaid balance of the
payment, as the same may be from time to time.


    
      
         


      

      
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    (d)          Right of
Set-Off.  Buyer’s obligation to make the Earn-Out Payments is
subject to reduction or non-payment due to any claim for Damages that a Buyer
Indemnified Party may have against Seller in accordance with Article VIII,
subject to the provisions of Section 8.2 hereof.  In the event that
Buyer determines to exercise its right of set-off pursuant to this Section 2.5,
Buyer shall comply with the provisions of this Section 2.5 in determining the
Earn-Out Payment and shall pay the amount, if any, by which the Earn-Out Payment
exceeds the amount set-off by Buyer.

     

    (e)           Conduct during Earn-Out
Term.  Buyer acknowledges that the possibility of receiving the
Earn-Out Payments comprises a material inducement for Seller to enter into this
Agreement. During the Earn-Out Period, Buyer shall (i) operate its business in
the ordinary course, reasonably consistent with past practices of Seller, (ii)
not change the operations of its business in any material way that would have a
material adverse effect on either Gross Profit or the ability to make Earn-Out
Payments to Seller hereunder, and (iii) conduct the Business post Closing in
such a manner as to be able to track Gross Profit on a job by job basis, and all
other financial matters and related items necessary for calculating the Earn-Out
Payment due hereunder, and, in connection therewith, shall keep true, complete
and accurate books of account and records, covering all transactions relating to
the subject matter of this Section 2.5.

     

    2.6  Working Capital
Adjustment.

     

    (a)           Preparation of Preliminary Statement of
Working Capital. As soon as reasonably possible after the Closing Date
(but not later than 60 days thereafter), Buyer will prepare, or cause to be
prepared by its independent accountant, a preliminary statement of working
capital (the “Preliminary Statement of
Working Capital”) setting forth (i) the Current Assets and Current
Liabilities of the Seller updated to the Closing Date and (ii) the Net Working
Capital of the Company, in each case as of the Closing Date.  For
purposes of this Agreement, ( “Net Working Capital”
shall mean Current Assets minus Current Liabilities in
each case updated to the Closing Date. The Preliminary Statement of Working
Capital shall be prepared in accordance with GAAP. In connection with the
preparation of the Preliminary Statement of Working Capital, the parties agree
that the following principles shall be applied:

     

    With
respect to Work-in-Process (“WIP”), that parties
will insure that to the extent a job is carried in WIP,  the percentage of
costs that have been booked will be consistent with the percentage of revenue
that has been recognized. For example, if Seller recognizes 30% of the gross
profit on a job then there should be billings equal to 30% of the total revenue
and there should be corresponding expenses equal to 30% of the total project
expense budget.  So if Seller has only booked 20% of the total expenses for
the job, the Seller will accrue the additional 10% of the expenses so the
expenses are equivalent on a 30% of completion basis.


    
      
         


      

      
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    (b)          Review of Preliminary
Statement of Working Capital. On or prior to the date on which the
Preliminary Statement of Working Capital is due (as contemplated by Section
2.6(a)), Buyer shall deliver to Seller the Preliminary Statement of Working
Capital.  The Seller and its independent accountant may review the
Preliminary Statement of Working Capital and may make inquiry of Buyer and its
representatives, and Buyer will make available to Seller and its
representatives, as reasonably requested, all books and records relating to the
Preliminary Statement of Working Capital within its possession.  The
Preliminary Statement of Working Capital shall be binding and conclusive upon,
and deemed accepted by, Seller unless the Seller shall have notified Buyer in
writing of any objections thereto consistent with the provisions of this Section
2.6 within thirty (30) days after receipt thereof.  The written notice
delivered by Seller to Buyer under this Section 2.6(b) shall specify in
reasonable detail each item on the Preliminary Statement of Working Capital that
Seller disputes, a summary of the reasons for such dispute and the portion of
the Preliminary Statement of Working Capital, if any, which Seller does not
dispute.

     

    (c)          Disputes.  Disputes
between Buyer and Seller relating to the Preliminary Statement of Working
Capital that cannot be resolved by Buyer and Seller within thirty (30) days
after receipt by Buyer of the notice referred to in Section 2.6(b) shall be
resolved in the manner set forth in Section 2.5(b) above. The Section 2.5(b)
Accountants shall
have exclusive jurisdiction over, and resort to the Section 2.5(b)
Accountants as
provided in this Section 2.6(c) shall be the sole recourse and remedy of the
parties against one another or any other Person with respect to, any disputes
arising out of or relating to the Net Working Capital.  The
decision of the Section 2.5(b) Accountants shall be final and binding upon the
parties and accordingly a declaratory judgment by a court of competent
jurisdiction may be entered in accordance therewith.

     

    (d)          Final Statement of Working
Capital.

     

    The
Preliminary Statement of Working Capital shall become final and binding upon the
parties hereto upon the earlier of (i) the failure by Seller to object thereto
within the period permitted under, and otherwise in accordance with the
requirements of, Section 2.6(b), (ii) the written agreement between Buyer and
Seller with respect thereto and (iii) the decision by the Section 2.5(b)
Accountant with respect to disputes under Section 2.6(c).  The
Preliminary Statement of Working Capital, as deemed to be agreed pursuant to
clause (i) above, or as adjusted pursuant to the written agreement of the
parties hereto or the decision of the Section 2.5(b) Accountants, when final and
binding, is referred to herein as the “Final Statement of Working
Capital”.

     

    (e)          Adjustment to the Purchase
Price.

     

    As soon as practicable (but not more
than five (5) Business Days) after the determination and delivery of the Final
Statement of Working Capital in accordance with this Section 2.6 the amount, if
any, by which the Net Working Capital at the Closing Date as reflected in the
Final Statement of Working Capital is (i) greater than $500,000, shall result in
an immediate upward adjustment of the Purchase Price in such amount as the Net
Working Capital varies from $500,000, which amount shall be payable by Buyer by
means of an increase in the principal amount of the Note, or (ii) less than
$500,000, shall result in an immediate downward adjustment of the Purchase Price
in such amount as the Net Working Capital varies from $500,000, which amount
shall decrease the principal amount of the Note.  All such changes to
the Note shall be effective as of the Closing Date.   In the
event of an adjustment to the Purchase Price pursuant to this Section 2.6(e),
upon surrender and cancellation of the Note, Buyer shall make and deliver a new
Note of like tenor in the principal amount as adjusted pursuant to this Section
2.6(e), or perform such further actions as the Seller may reasonably request, in
order to carry out the purposes and intent of this Section
2.6(e).


    
      
         


      

      
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    2.7           Allocation of Purchase Price
and Assumed Liabilities.  Within seventy-five (75) days of the
Closing Date, Seller shall, in good faith, allocate and set forth in a schedule
the Purchase Price among the Purchased Assets and submit the schedule to Buyer
for review and acceptance, such acceptance not to be unreasonably withheld (the
“Allocation
Schedule”).  The parties shall use the allocations set forth in
the Allocation Schedule (as reasonably adjusted to account for events occurring
after the determination of the Allocation Schedule) for all Tax purposes, file
all Tax Returns in a manner consistent with the Allocation Schedule (as
adjusted) and take no tax position contrary thereto unless required to do so by
a change in applicable Tax Laws or a good faith resolution of a Tax
contest.  The parties shall cooperate with each other in connection
with the preparation, execution and filing of all Tax Returns related to such
allocation and they shall promptly advise each other regarding the existence of
any tax audit, controversy or litigation related to such
allocation.

    


    ARTICLE
III

    REPRESENTATIONS
AND WARRANTIES RELATING TO SELLER

     

    Seller
and Parent hereby jointly and severally represent and warrant to Buyer as
follows:

     

    3.1   Organization and
Standing.  Seller is a limited liability company, duly
organized, validly existing and in good standing under the Laws of the State of
Delaware and has all requisite limited liability company power and authority to
own, lease and operate its properties and assets and to carry on its business as
now being conducted.  Seller has made available to Buyer true,
complete and correct copies of the organizational documents of Seller, as
amended to the date of this Agreement, and has made available to Buyer any
ownership records.  Seller is not in violation of any provision of its
articles of organization.

     

    3.2   Authorization of
Seller.  The execution, delivery and performance by Seller of
this Agreement and the consummation by Seller of the transactions contemplated
hereby are within Seller’s power and have been duly authorized by all necessary
action on the part of the managers and/or members of Seller.  This
Agreement constitutes (assuming the due execution and delivery by each of the
other parties hereto) the legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar Laws relating to or affecting creditors’ rights generally and
general equitable principles (whether considered in a proceeding in equity or at
Law).


    
      
         


      

      
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    3.3   Noncontravention.  Except
as set forth in Schedule 3.3, the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby by Seller does not, and the consummation by Seller of the
transactions contemplated hereby will not, (i) contravene or violate any
material provision of the organizational documents of Seller, or (ii) contravene
or violate any material provision of, or result in the termination or
acceleration of, or entitle any party to accelerate any obligation or
indebtedness under, or result in the imposition of any Encumbrance (other than a
Permitted Encumbrance) on Seller pursuant to any mortgage, lease, franchise,
license, permit, agreement, instrument, Law, order, arbitration award, judgment
or decree to which Seller is a party or by which Seller is bound.

     

    3.4   Consents and
Filings.  Except as set forth in Schedule 3.4, no
consent, approval, license, permit, order or authorization (each, a “Consent”) of, or
registration, declaration or filing (each, a “Filing”) with, any
Governmental Entity is required for or in connection with the execution and
delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby.

     

    3.5   Financial
Statements.  Attached hereto as Schedule 3.5 are true
and correct copies of (i) the audited consolidated balance sheet as of December
31, 2008 and the related statements of operations, changes in  equity
and cash flows for the year then ended for Parent, and (ii) the unaudited
consolidated balance sheet as of November 30, 2009 (the “Balance Sheet Date”)
and the related statements of operations and cash flows of Seller for the eleven
month period then ended (collectively “Financial
Statements”). To the Knowledge of Parent, the Financial Statements have
been prepared in accordance with GAAP consistently applied (except for the
absence of footnote disclosures required by GAAP) during the periods involved
and fairly present in all material respects the financial position and the
results of operations and cash flow of Seller as of the dates and for the
periods presented therein.

     

    3.6   Litigation.  To
the Knowledge of Parent, except as set forth in Schedule 3.6, (i) there are no
Legal Proceedings by or before any Governmental Entity or arbitration tribunal
pending or threatened against Seller, and (ii) no injunction, writ, temporary
restraining order, decree or any order of any nature has been issued by any
court or other Governmental Entity relating to Seller or seeking or purporting
to enjoin or restrain the execution, delivery and performance by Seller of this
Agreement or the consummation of the transactions contemplated
hereby.

     

    3.7   Benefit
Plans.  To the Knowledge of Parent, Schedule 3.7 lists
each material “employee benefit
plan” within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), and each
material severance, change in control or employment plan, program or agreement,
and vacation, incentive, bonus, stock option, stock purchase and restricted
stock plan, program or policy sponsored or maintained by Seller for the benefit
of current and former employees of Seller (each, a “Seller
Plan”).  Seller does not contribute to any “multiemployer plan”
(within the meaning of Section 3(37) of ERISA) nor has it incurred any
withdrawal liability under any such multiemployer plan under Title IV of ERISA
which remains unsatisfied.

     

    3.8   Labor;
Employees.  To the Knowledge of Parent, Seller is neither a
party to or bound by any collective bargaining or similar labor agreement, nor
is one presently being negotiated, there are no existing or threatened strikes,
lockouts or other labor stoppages involving the employees of Seller, there is no
union organization campaign being conducted with respect to employees of Seller,
and there is no litigation relating to employment matters pending against
Seller. To the Knowledge of Parent, there are no change of control payments or
sale or transaction bonuses payable to employees, consultants or directors of
Seller as a result of the transactions contemplated by this Agreement (“Change of Control
Payments”).


    
      
         


      

      
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    3.9   Taxes.  Except
as set forth in Schedule 3.9, (i) all
Tax Returns required to be filed by Seller prior to the date hereof have been
filed (except those under valid extension), (ii) all Taxes which were shown to
be due on such Tax Returns have been paid (unless such Taxes are being contested
in good faith), (iii) there is no Legal Proceeding or audit now pending against,
or with respect to, Seller in respect of any Taxes or assessments, (iv) Seller
has never been a member of an affiliated group (other than a group the common
parent of which is Seller filing a consolidated Return, (v) Seller has no
liability for Taxes of any Person arising from the application of Treasury
Regulation Section 1.1502-6 or any analogous provision of state, local or
foreign Law, or as a transferee or successor, by contract, or otherwise, (vi)
Seller is not a party to any Tax sharing agreement or any agreement that
obligates it to make any payment computed by reference to the Taxes, taxable
income or taxable losses of any other Person, (vii) all Taxes required to be
withheld, collected or deposited prior to the date hereof by or with respect to
Seller have been timely withheld, collected or deposited as the case may be, and
to the extent required, have been paid to the relevant Tax Authority and (viii)
there are no liens with respect to Taxes upon the assets of Seller except for
statutory liens for Taxes not yet due and payable or liens for Taxes that are
being contested in good faith.

     

    3.10 Environmental
Matters.  To the Knowledge of Parent, except as disclosed in
Schedule 3.10
(i) Seller complies with all applicable Laws protecting the quality of the
ambient air, soil, surface water or groundwater or otherwise relating to
pollution, contamination or protection of the environment and possesses and
complies with all applicable Permits required under any such Laws to operate as
it currently operates; and (ii) there are no Legal Proceedings pending or
threatened, that seek to enforce or impose liability under any such Law against
Seller, or to revoke or modify any such Permit held by Seller.

     

    3.11 Assets.  Seller
has good and marketable title to, or in the case of leased properties and
assets, valid leasehold interests in, all of the Purchased Assets, free and
clear of any Encumbrances.  None of the properties or assets used in
or necessary to conduct Seller’s business as presently conducted are owned by
Parent or any Affiliate of Parent, or to Parent’s knowledge, being retained by
Parent or any Affiliate of Parent.

     

    3.12 Brokers.  Except
for Updata Advisors, Inc., neither Seller nor Parent has employed any investment
banker, broker or finder or incurred any liability for any investment banking
fees, brokerage fees, agent’s commissions or finders’ fees in connection with
the transactions contemplated by this Agreement for which Buyer, or Seller has,
will have or may have any liability. Seller shall be solely responsible for
paying all sums owing to Updata Advisors, Inc.

     

    3.13 Restrictions on Business
Activities.  To the Knowledge of Parent, except as set forth on
Schedule 3.13,
there is no agreement, judgment, injunction, order or decree binding upon Seller
which has the effect of prohibiting or materially impairing any current business
practice of Seller, any acquisition of property by Seller or the conduct of
business by Seller as currently conducted.


    
      
         


      

      
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    3.14 Solvency.  Seller
is not insolvent and will not be rendered insolvent by any of the transactions
contemplated by this Agreement.  As used in this Section, “insolvent”
means that the sum of the debts and other probable Liabilities of Seller exceeds
the present fair saleable value of Seller’s assets.

     

    3.15 Absence of Certain
Actions.  Except as set forth on Schedule ‎3.15, neither Parent
nor the Board of Managers of Seller has taken any action, with respect to the
day-to-day business operations of Seller that has not been discussed with James
Embley in his capacity as CEO of the Seller.

    


    3.16 Compliance with
Laws.  Seller has not received any written notice that Seller
is in violation of any Laws.

    


    3.17 Contracts.  Seller
has not received any written notice that Seller is in default of its obligations
under any of the Contracts listed on Schedule 2.1(a)(iv)
or any of the leases listed on Schedule
2.1(a)(iii).

    


    3.18 Intellectual
Property. Seller has not received any written notice or claim asserting
that any of the Intellectual Property listed on Schedule 2.1(a)(ii)
infringes upon, misappropriates, or violates any Intellectual Property of any
third party.

    


    EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT SET FORTH IN THIS
AGREEMENT, NEITHER SELLER, NOR PARENT, NOR ANY EMPLOYEES, AGENTS OR ANY OTHER
RELATED PERSONS, MAKES ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY
OR IMPLIED, AND SELLER AND PARENT HEREBY DISCLAIM ANY SUCH REPRESENTATION OR
WARRANTY NOT SET  FORTH  IN THIS AGREEMENT.

     

    ARTICLE
IV

    REPRESENTATIONS
AND WARRANTIES RELATING TO SELLER AND PARENT

     

    Seller
and Parent hereby jointly and severally represent and warrant to Buyer as
follows:

     

    4.1   Authorization.  The
execution, delivery and performance by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby and thereby are
within Parent’s powers and have been duly authorized by all necessary action on
the part of Parent.  This Agreement constitutes (assuming the due
execution and delivery by each of the other parties hereto) the legal, valid and
binding obligation of Parent, enforceable against Parent in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other Laws relating to or affecting creditors’
rights generally and general equitable principles (whether considered in a
proceeding in equity or at Law).

     

    4.2   The Membership
Interests.  Parent is the record and beneficial owner of all of
the membership interests in Seller.


    
      
         


      

      
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    4.3   Consents and
Filings.  No Consent or Filing with, any Governmental Entity is
required for or in connection with the execution and delivery of this Agreement
by Parent, and the consummation by Parent of the transactions contemplated
hereby, exclusive of any Filings which may be required by applicable securities
and blue sky laws, so-called.

     

    4.4   Noncontravention.  The
execution, delivery and performance of this Agreement by Parent does not, and
the consummation by Parent of the transactions contemplated hereby will not, (i)
contravene or violate any provision of the organizational documents of Parent,
or (ii) contravene or violate any provision of, or result in the termination or
acceleration of, or entitle any party to accelerate any obligation or
indebtedness under, or result in an adverse claim pursuant to any mortgage,
lease, franchise, license, permit, agreement, instrument, law, order,
arbitration award, judgment or decree to which Parent is a party or by which
Parent is bound.

     

    4.5   No Legal
Proceedings.  No Legal Proceedings are pending or to the
Knowledge of Parent are threatened against Parent relating to, or that could
reasonably be expected to prevent or delay the consummation of, the transactions
contemplated hereby.

     

    ARTICLE
V

    REPRESENTATIONS
AND WARRANTIES OF BUYER

     

    Buyer
hereby represents and warrants to Seller and Parent as follows:

     

    5.1   Organization and
Existence.  Buyer is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware and has
all requisite power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby.

     

    5.2   Authorization.  The
execution, delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby are within Buyer’s
powers and have been duly authorized by all necessary action on the part of
Buyer.  This Agreement constitutes (assuming the due execution and
delivery by each of the other parties hereto) the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar Laws relating to or affecting
creditors’ rights generally and general equitable principles (whether considered
in a proceeding in equity or at Law).

     

    5.3   Consents and
Filings.  No Consent of, or Filing with, any Governmental
Entity by Buyer is required for or in connection with the execution and delivery
of this Agreement and the consummation by Buyer of the transactions contemplated
hereby.

     

    5.4   Noncontravention.  The
execution, delivery and performance by Buyer of this Agreement do not, and the
consummation by Buyer of the transactions contemplated hereby and thereby will
not, (i) contravene or violate any provision of the organizational documents of
Buyer, or (ii) contravene or violate any provision of, or result in the
termination or acceleration of, or entitle any party to accelerate any
obligation or indebtedness under, any mortgage, lease, franchise, license,
permit, agreement, instrument, Law, order, arbitration award, judgment or decree
to which Buyer is a party or by which Buyer is bound, except in the case of
clause (ii) to the extent that any such events would not materially impair or
materially delay the ability of Buyer to effect the Closing.


    
      
         


      

      
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    5.5   No Legal
Proceedings.  There are no Legal Proceedings pending against
Buyer, and Buyer is not subject to any judgment, decree, injunction or order of
any Governmental Entity which, individually or in the aggregate would, enjoin,
rescind or materially delay the transactions contemplated by this Agreement or
otherwise prevent Buyer from complying in all material respects with the terms
and provisions hereof or thereof.

     

    5.6   Brokers.  Neither
Buyer nor any of Buyer’s directors, officers, employees or agents has employed
any investment banker, broker or finder or incurred any liability for any
investment banking fees, brokerage fees, commissions or finders’ fees or any
other fees or commissions to investment bankers, brokers or finders in
connection with the transactions contemplated by this Agreement for which
Parent, or, in the event the Closing does not occur, Seller, has, will have or
may have any liability.

     

    5.7   Independent
Investigation.  Buyer has conducted its own independent
investigation of the Purchased Assets.  Buyer acknowledges that it has
had access to Seller’s personnel and to any and all environmental and other
permit documents and information and has inspected the Purchased Assets and any
and all financial, operational and other documents and information that Buyer
has requested or otherwise determined is necessary as part of Buyer’s due
diligence review of the Purchased Assets and the Business.  Buyer has
been provided all information and documentation it has requested and has
received answers to all questions asked of Buyer and its representatives and
personnel.

     

    5.8   Closed
Projects.  Buyer and the members of Buyer have no Knowledge of
any outstanding asserted or unasserted claims or Liabilities from errors,
omissions, warranty or additional subcontractor costs relating to any closed
projects of Seller and no event has occurred or circumstances exists that may
give rise to or serve as a basis for any such claims or
Liabilities.

     

    5.9   Financial
Capability.  Buyer has and will have available to it on the
Closing Date sufficient funds to consummate the transactions contemplated
hereby.

     

    5.10 Signatures at
Closing.  To the Knowledge of Buyer, the Buyer will be able to
deliver at Closing all items requiring the signature of Buyer, James Embley,
Eric Holzworth, William Pirrone, Rudy Kraus, Steven Friedman or Ronald Croce,
including, but not limited to, the Releases.

    


    EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES OF BUYER SET FORTH IN THIS AGREEMENT,
NEITHER BUYER NOR ANY EMPLOYEES, AGENTS OR ANY OTHER RELATED PERSONS MAKES ANY
OTHER REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AND BUYER
HEREBY DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY NOT
SET  FORTH  IN THIS AGREEMENT.


    
      
         


      

      
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    ARTICLE
VI

    COVENANTS

     

    6.1  Conduct of the
Business.  From the date hereof until the Closing Date, Seller
shall (i) operate its business in the ordinary course in all material respects,
(ii) promptly advise Buyer of any material adverse change in Seller that has
occurred or that would reasonably be expected to occur, (iii) comply in all
material respects with all Laws applicable to Seller in the conduct of its
business, (iv) use reasonable efforts to maintain its assets and properties in
operating condition in all material respects (ordinary wear and tear excepted),
(v) use reasonable efforts to keep available the services of its officers and
employees, (vi) perform all of its material obligations under the Scheduled
Contracts, and (vii) make all Filings and pay any fees necessary to maintain in
good standing all Permits.

     

    6.2  Consents and
Approvals. Each of Buyer, Seller and Parent shall promptly apply for, and
take all reasonably necessary actions to obtain or make, as applicable, all
consents, approvals, orders and authorizations of, and all registrations,
declarations and filings with, any person or entity required to be obtained or
made by it for the consummation of the transactions contemplated by this
Agreement.  Each party shall cooperate with and promptly furnish
information to the other party necessary in connection with any requirements
imposed upon such other party in connection with the consummation of the
transactions contemplated hereby.

     

    6.3  Use of
Name.  From and after the Closing, Seller and Parent will not,
and will cause its Affiliates not to, directly or indirectly, use or do
business, or assist any third party in using or doing business under the name
“Rubicon” or by another name similar to such names and marks, except as
necessary to effect the change of Seller’s name or to evidence that such change
has occurred, or in connection with the filing of Tax Returns or for such other
non-commercial uses as may be required by Law. Promptly after the Closing,
Seller will file all documents with the appropriate Governmental Entities in the
state of its incorporation and any other jurisdictions in which it is qualified
or licensed to do business, to change the name of Seller to a name that it not
the same or confusingly similar to its name used prior to the
Closing.

     

    6.4  Employees and Employee
Benefits.

     

    (a)          Buyer
is not obligated to hire any employee of Seller but may interview and make
offers of employment to any, some, or all of Seller’s
employees.  Without limiting the generality of the foregoing, Seller
acknowledges that Buyer does not intend to offer (and shall have no obligation
to offer) employment to any of Messrs. Nuzzo, Kowenhoven or
O’Riordan.  Buyer has provided Seller with a list of Seller’s
employees to whom Buyer has made an offer of employment that has been accepted
to be effective on the Closing Date (collectively, the “Hired
Employees”).  Effective immediately before the Closing, Seller
is terminating the employment of all of the Hired Employees.  Buyer
will use its reasonable efforts to have each of the Hired Employees sign a
Separation Agreement prior to Closing.

     

    (b)          Buyer
will set its own initial terms and conditions of employment for the Hired
Employees and others it may hire, including work rules, benefits and salary and
wage structure, all as permitted by applicable Law.  Buyer is not
obligated to assume any collective bargaining agreements under this
Agreement.  Seller will be solely liable for any severance payments
required to be made to Seller’s employees, if any, as a result of the
transactions contemplated by this Agreement.


    
      
         


      

      
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    (c)          It
is understood and agreed that (i) Buyer’s extension of offers of employment as
set forth in this Section will not constitute a Contract (express or implied) on
the part of Buyer to a post-Closing employment relationship of any fixed term or
duration or upon any terms or conditions other than those that Buyer may
establish pursuant to individual offers of employment and (ii) employment
offered by Buyer is “at will” and may be terminated by Buyer or by an employee
at any time for any reason (subject to any written commitments to the contrary
made by Buyer or an employee and applicable Laws governing
employment).  Nothing in this Agreement will be deemed to prevent or
restrict in any way the right of Buyer to terminate, reassign, promote or demote
any of the Hired Employees after the Closing, or to change adversely or
favorably the title, powers, duties, responsibilities, functions, locations,
salaries, other compensation or terms or conditions of employment of such
employees.

     

    (d)          From
and after the Closing Seller will remain solely responsible for all Liabilities
that arise up until Closing, to or in respect of its employees and former
employees, including Hired Employees, and beneficiaries and dependents of any
such employee or former employee, relating to or arising in connection with or
as a result of (i) the employment of any such employee or former employee or the
actual or constructive termination of employment of any such employee or former
employee (including in connection with the consummation of the transactions
contemplated by this Agreement and including the payment of any termination or
severance payments and the provision of health plan continuation coverage in
accordance with the continuation coverage requirements of Sections 601 et seq. of ERISA and Section
4980B of the Code (“COBRA”), (ii) the
participation in or accrual of benefits or compensation under, or the failure to
participate in or to accrue compensation or benefits under, any Seller Plan or
other employee or retiree benefit or compensation plan, program, practice,
policy or other Contract of Seller, or (iii) accrued but unpaid salaries, wages,
bonuses, incentive compensation, vacation or sick pay or other compensation or
payroll items (including deferred compensation).  In addition, from
and after the Closing, Seller will remain solely responsible for all Liabilities
to or in respect of the Hired Employees and their beneficiaries or dependents
relating to or arising in connection with any claims, whether such claims are
asserted before, on or after the Closing Date, for life, disability, accidental
death or dismemberment, supplemental unemployment compensation, medical, dental,
hospitalization, other health or other welfare or fringe benefits or expense
reimbursements which claims relate to or are based upon an occurrence on or
before the Closing Date (including claims for continuing treatment in respect of
any illness, accident, disability, condition or confinement which occurs or
commences on or before the Closing Date).

     

    (e)          All
Hired Employees who are participants in Seller Plans that are pension plans as
defined in Section 3(2) of ERISA will retain their accrued benefits under such
Seller Plans as of the Closing Date. Seller (or the applicable Seller Plan) will
retain sole liability for the payment of such benefits as and when such Hired
Employees become eligible for them under such Seller Plans.  Seller
will cause the Hired Employees to be fully and immediately vested in their
accrued benefits under each such Seller Plan as of the Closing
Date.

     

    (f)           Seller
shall provide reimbursement of the premium costs for continued health insurance
coverage for each Hired Employee who elects to participate in COBRA through
January 31, 2010.  Buyer shall pay $6,500 to Seller at Closing as
reimbursement for the actual out-of-pocket expenses of continuing such
coverage.


    
      
         


      

      
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    6.5         Further
Actions.  Each Party shall use commercially reasonable efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable Law to consummate and
make effective the transactions contemplated by this Agreement.

     

    6.6  Nonsolicitation.

     

    (a)           Seller
and Parent acknowledge and agree that Buyer is relying on the covenants and
agreements in this Section 6.6 as a material inducement to consummate the
transactions contemplated by this Agreement and that Buyer would not enter into
this Agreement or consummate the transactions contemplated hereby but for the
agreements of Seller and Parent in this Section 6.5.  It is the
intention of Section 6.6 to provide a limited restrictive covenant to prevent
Seller and Parent, on the one hand, and Buyer, on the other hand, from
soliciting the other’s Clients (as hereinafter defined) with respect to Seller’s
business namely providing turn-key design, procurement, construction management,
installation services and facility management services for mission critical
facilities (the “Business”).

     

    (b)          For
a time period of two (2) years following the Closing Date (provided, that the
obligations hereunder of the Parties shall be extended by adding to such term
the length of time, if any, during which any of them and/or their respective
Affiliates shall be or remain in violation of their obligations under this
Section 6.6) (the “Nonsolicitation
Term”), neither Seller nor Parent, on the one hand, nor Buyer nor the
members of Buyer, on the other hand, shall, without the prior written consent of
the other Party, directly or indirectly, (i) with respect to the Business only,
divert, or in any way attempt to divert, any Client of the other Party from
engaging in business with such other Party, or (ii) solicit any Client of the
other Party for purpose or providing Business services to such
Client.  For purposes hereof, the term “Client” shall mean
(x) those clients of Buyer set forth on Schedule
6.6(b)(ii)(x) and (y) those clients of Seller and Parent set forth on
Schedule
6.6(b)(ii)(y), but shall exclude Powerloft.   In the case
of Powerloft, during the Nonsolicitation Term, the Buyer will limit its business
activities to the services historically provided to Powerloft by the
Seller.  The Parent and any Affiliate of the Parent will limit their
business activities to the services historically provided to Powerloft by the
Parent.

     

    (c)          If
at any time the provisions of this Section 6.6 shall be determined to be invalid
or unenforceable, by reason of being vague or unreasonable as to area, duration
or scope of activity, then this Section 6.6 shall be considered divisible and
shall become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and all of the parties hereto
agree that this Section 6.6 as so amended shall be valid and binding as though
any invalid or unenforceable provision had not been included
herein.


    
      
         


      

      
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    6.7           Non-disparagement.  Parent
and Seller, on the one hand, and Buyer and the members of Buyer, on the other
hand, agree that no party will make any statement that is professionally or
personally disparaging about, or adverse to, the interests of the other party
or, in the case of Seller and Parent, any Affiliate thereof, or any of their
respective officers, directors, stockholders, employees or representatives,
including, but not limited to, any statement that disparages any person,
product, service, finances, financial condition, capabilities or other aspect of
the business of such person or entity.  Parent and Seller, on the one
hand, and Buyer, on the other hand, further agree not to engage in any conduct
that is intended to or has the result of inflicting harm upon the professional
or personal reputation of the other or, in the case of Parent and Seller, any
Affiliate thereof, or any of their respective officers, directors, stockholders,
employees or representatives

     

    6.8           Public
Announcements. Neither the Buyer nor
any of its directors, officers, employees or agents, shall, prior to the filing
by Parent of its Form 8-K in connection with this transaction, issue or permit
to be issued any public announcement or statement or press release (“Public Announcement”)
pertaining to this Agreement or any transaction contemplated hereby without the
prior written consent of Parent.  Parent may in its sole discretion
issue any Public Announcement pertaining to this Agreement or any transaction
contemplated hereby without the consent of the Buyer; provided, however, that,
subject to any public disclosure and other legal obligations of the Parent and
regulatory obligations to which Parent may be subject and without limiting the
rights of Parent pursuant to this Section 6.8, Parent shall use commercially
reasonable efforts to provide the Buyer an opportunity to review and discuss
with Parent any press release proposed to be issued by Parent announcing the
consummation of the transactions contemplated hereby prior to issuing any such
press release.

     

    6.9           Litigation
Support.  In the event and for so long as any Party actively is
contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand in connection with (a) any
transaction contemplated under this Agreement or (b) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act or transaction on or prior to the Closing Date
involving any Party, each of the other Parties shall cooperate with him or it
and his or its counsel in the contest or defense and provide such testimony and
access to its books and records as shall be necessary in connection with the
contest or defense, provided that any reasonable actual, out-of-pocket costs
incurred as a result of such cooperation shall be reimbursed to the cooperating
party.

     

    6.10         Cooperation as to
Taxes.  After the Closing, upon reasonable written notice,
Buyer and Seller shall furnish or cause to be furnished to each other, as
promptly as practicable, such information and assistance (to the extent within
the control of such party) relating to Seller (including access to books and
records) as is reasonably necessary for the filing of all Tax returns, and the
making of any election related to Taxes, the preparation for any audit by any
Governmental Authority, and the prosecution or defense of any claim, suit or
proceeding related to any Tax return.  Seller and Buyer shall
reasonably cooperate with each other in the conduct of any audit or other
proceeding relating to Taxes involving Seller.  Buyer agrees that for
a period of four (4) years after the Closing Date, it will maintain and preserve
the books, records and files relating to Seller prior to Closing, and Seller and
its Affiliates (at their own expense) shall have the right after the Closing to
reasonably inspect and to make copies of the same upon reasonable prior notice
at a mutually agreed time during normal business hours for any purposes of this
Section.


    
      
         


      

      
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    6.11        Acceleration of
Vesting.  Parent agrees that, upon the Closing, there will be
full accelerated vesting of all Parent stock issuable to Messrs. Embley,
Holzworth and Pirrone in connection with the 2007 Employment Agreements which is
then unvested.

     

    6.12        Transition
Services.  Following the Closing, Seller and Parent shall
provide the transition services described on Schedule 6.12
attached.

    


    ARTICLE
VII

    CONDITIONS
TO CLOSING

     

    7.1  Conditions Precedent to
Buyer’s Obligations.  The obligation of Buyer to consummate the
Closing and the other transactions contemplated by this Agreement is expressly
subject to the fulfillment or express written waiver of the following conditions
on or prior to the Closing Date:

     

    (a)          Representations and
Warranties True.  Each of the representations and warranties
contained in Article III and Article IV shall be true and correct in all
material respects at and as of the Closing, except for those (x) representations
and warranties that are qualified by materiality, which representations and
warranties shall be true and correct in all respects, and (y) representations
and warranties that expressly relate to an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier
date.

     

    (b)          Covenants
Performed.  The Seller shall have performed, on or before the
Closing Date, all material obligations contained in this Agreement which by the
terms hereof are required to be performed by it on or before the Closing
Date.

     

    (c)          Compliance
Certificate.  Buyer shall have received the certificates signed
by an officer of the Seller, certifying as to the matters set forth in Sections
‎7.1(a) and
‎7.1(b)
above.

     

    (d)          Required Consents and
Approvals.  All of the approvals, consents and licenses listed
on Schedule
‎7.1(d) shall have
been obtained.

     

    (e)           No Injunction,
Etc.  There shall not be any order of any court or governmental
agency restraining or invalidating the material transactions which are the
subject of this Agreement.

     

    (f)           Balance
Sheet.  The Seller shall have delivered to Buyer the unaudited
balance sheet as of November 30, 2009 and the related statements of operations
and cash flows of Seller for the eleven month period then ended,
which  balance sheet shall be prepared with the assistance of Buyer
and the members of Buyer.

     

    (g)          Deliverables.  The
Seller shall have delivered the items set forth in Section 2.4(b).

     

    7.2  Conditions Precedent to
Seller’s and Parent’s Obligations.  The obligation of Seller
and Parent to consummate this Agreement and the other transactions contemplated
by this Agreement is expressly subject to the fulfillment or express written
waiver of the following conditions on or prior to the Closing
Date:


    
      
         


      

      
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    (a)          Representations and
Warranties True.  Each of the representations and warranties of
Buyer contained in Article V shall be true and correct in all material respects
at and as of the Closing.

     

    (b)          Obligations
Performed.  Buyer shall have performed in all material
respects, on or before the Closing Date, all obligations contained in this
Agreement which by the terms hereof are required to be performed by Buyer on or
before the Closing Date.

     

    (c)          Compliance
Certificate.  Seller shall have received a certificate signed
by an authorized officer of Buyer certifying as to the matters set forth in
Section ‎7.2(b).

     

    (d)          Deliverables.  Buyer
shall have delivered the items set forth in Section 2.4(a).

     

    (e)          No Injunction,
Etc.  There shall not be any order of any court or governmental
agency restraining or invalidating the material transactions which are the
subject of this Agreement.

     

    ARTICLE
VIII

    INDEMNIFICATION
OBLIGATIONS

     

    8.1   Survival.  Each
of the representations and warranties of Seller and Parent contained in Articles
III and IV of this Agreement shall survive the Closing and not terminate until
one year from the Closing Date, except that the representations and warranties
set forth in Sections 3.1, 3.2, 3.9, 3.11, 4.1, and 4.2  shall not
terminate and shall survive indefinitely subject to the applicable statute of
limitations.  Notwithstanding the foregoing, any representation or
warranty in respect of which indemnity may be sought under Article VIII of this
Agreement shall survive the time at which it would otherwise terminate pursuant
to this Section 8.1 if written notice of a good faith claim for indemnification
in respect of such representation or warranty shall have been duly given prior
to such time, in which event such representation or warranty shall survive
solely with respect to such claim until the final resolution
thereof.

     

    Notwithstanding
the foregoing, if Buyer has actual knowledge at or before the Closing of any
breach or non-fulfillment of a representation, warranty, covenant or agreement
herein by Seller or Parent and Buyer nevertheless proceeds to consummate the
transaction contemplated hereby, then without further act on the part of any
party hereto, Buyer shall be deemed to have waived its rights with respect to
such breach or non-fulfillment (but not without respect to any other breach or
non-fulfillment).

     

    8.2   Seller’s and Parent
Indemnification Obligations.  From and after the Closing,
Seller and Parent, jointly and severally, agree to indemnify and hold Buyer and
its Affiliates, and their respective officers, directors and shareholders, but
only in their capacities as such, (the “Buyer Indemnified
Parties”) harmless and shall reimburse Buyer Indemnified Parties first by
means of set-off against the Note and the Earn-Out Payments and then personally
for any Damages incurred or suffered by Buyer Indemnified Parties arising out of
any misrepresentation or breach of representation or warranty, covenant or
agreement made or to be performed by Seller or Parent under this Agreement or
any of the Excluded Liabilities.


    
      
         


      

      
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    Notwithstanding
anything contained in this Agreement to the contrary, (i) Seller and Parent
shall have no liability (for indemnification or otherwise) with respect to
claims under this Section 8.2 until the total of all Damages with respect to
such matters exceeds Fifty Thousand Dollars ($50,000) (the “Basket”) and then for
the amount of all Damages, including the Basket, and (ii) the aggregate
liability of Seller and Parent under this Article VIII shall in no event exceed
the sum of Seven Hundred Fifty Thousand ($750,000) Dollars (the “Cap”); provided,
however, that neither the Basket nor the Cap shall be taken into account if the
Damages relate to (x) any breach of a representation or warranty set forth in
Sections 3.1, 3.2, 3.9, 3.11, 4.1 or 4.2, or (y) any shortfall of the working
capital as set forth in the certificate delivered to Buyer at Closing or (z) any
of the Excluded Liabilities.

     

    For
purposes of this Article VIII, all “Damages” shall be computed net of any
insurance coverage with respect thereto that reduces the Damages that would
otherwise be sustained; provided, however, that in all cases, the timing of the
receipt or realization of insurance proceeds shall be taken into account in
determining the amount of reduction of Damages.

     

    8.3   Notice of
Claim.  If a claim is asserted against a Buyer Indemnified
Party by a third party (a “Third Party Claim”)
that could reasonably be expected to give such Buyer Indemnified Party the right
to be indemnified under this Article VIII, or if a Buyer Indemnified Party
believes that it is entitled to indemnification under this Article VIII on the
basis of a direct claim against such Buyer Indemnified Party under this
Agreement (a “Direct
Claim”), then Buyer Indemnified Party seeking indemnification hereunder
shall give written notice thereof (a “Notice of Claim”) to
Seller and Parent (collectively the “Indemnifying Party”)
as promptly as is practicable from the date on which Buyer Indemnified Party
obtains knowledge of such claim (but in no event later than the applicable
survival period set forth in Section 8.1 above), provided that a delay in
notifying the Indemnifying Party shall not relieve the Indemnifying Party of its
obligations under this Agreement except to the extent that (and only to the
extent that) the Indemnifying Party is materially prejudiced by such
delay.  The Notice of Claims shall specify whether the claim is a
Third Party Claim or a Direct Claim, and shall set forth in reasonable detail
the grounds and the amount or estimated amount of the claim.

     

    8.4   Direct
Claims.  The Indemnifying Party shall have 20 Business Days
from receipt of the Notice of Claim with respect to any Direct Claim to deliver
to Buyer Indemnified Party a written notice objecting to any item or amount set
forth in the Notice of Claim (a “Direct Claim Counter
Notice”).  If no such objection if given in a timely manner,
the Indemnifying Party shall be deemed to have consented and agreed to such item
or amount.  Should the Parties, within such 20 Business Days period
(subject to any possible extensions agreed between them), agree, in whole or in
part, upon the Indemnifying Party’s liability for Damages, the Indemnified Party
shall, pursuant to the terms of this Agreement, pay Buyer Indemnified Party for
the entire agreed upon amount of Damages.


    
      
         


      

      
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    8.5   Third Party
Claims.  Upon receipt by the Indemnifying Party of a Notice of
Claim with respect to a Third Party Claim, the Indemnifying Party shall have the
right to assume the defense of such Third Party Claim with counsel reasonably
satisfactory to Buyer Indemnified Party and Buyer Indemnified Party shall
cooperate to the extent reasonably requested by the Indemnifying Party in the
defense or prosecution thereof, provided that Buyer Indemnified Party is
reimbursed by the Indemnifying Party for its actual out-of-pocket costs in
connection therewith.  If the Indemnifying Party elects to assume the
defense of such claim, Buyer Indemnified Party shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of Buyer Indemnified Party, unless there is, under
applicable standards of conduct, a conflict on any significant issue between
Indemnifying Party and Buyer Indemnified Party, in which case the reasonable
fees and expenses of one such counsel shall be at the expense of the
Indemnifying Party.  Unless and until the Indemnifying Party assumes
the defense of a Third Party Claim, but in no event prior to 20 Business Days
from receipt by the Indemnifying Party of the Notice of Claim with respect to
any Third Party Claim, Buyer Indemnified Party may defend against the Third
Party Claim in any manner it may reasonably deem appropriate, the reasonable
costs and expenses of which shall be borne by the Indemnifying
Party.  If the Indemnifying Party has assumed the defense of any claim
against Buyer Indemnified Party, the Indemnifying Party shall not settle such
claim without the prior written consent of Buyer Indemnified Party, which
consent shall not be unreasonably withheld, delayed or
conditioned.  If the Indemnifying Party does not assume the defense of
a Third Party Claim, but does not dispute Buyer Indemnified Party’s right to
indemnification by delivering to Buyer Indemnified Party a written notice
objecting to any item or amount set forth in the Notice of Claim (a “Third Party Claim Counter
Notice” and collectively with the Direct Claim Counter Notice, a “Counter Notice”), the
Indemnifying Party shall have the right to participate in the defense of such
claim through counsel of its choice, at the Indemnifying Party’s expense, and
Buyer Indemnified Party shall not settle such claim without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld, delayed or conditioned.

     

    8.6   Disputes.  In
the event that Seller and Parent, on the one hand, or Buyer, on the other hand,
shall dispute any claim for indemnification made hereunder, Buyer and Seller’s
Representative will attempt to resolve such dispute through good faith
negotiation.  If Buyer and Seller’s Representative are unable to
resolve such dispute through good faith negotiation within 30 days after Seller
and Parent deliver the Counter Notice, the dispute will be settled by binding
arbitration conducted before a single arbitrator.  Either Buyer or
Seller’s Representative may submit the dispute to arbitration.  The
arbitration will be conducted in accordance with the then applicable Commercial
Arbitration Rules of the American Arbitration Association (“AAA”) and will be
held in the State of Maryland.  The arbitrator shall be mutually
agreed upon by Buyer and Seller, but if they are unable to agree on an
arbitrator, the arbitrator shall be appointed by AAA.  All arbitration
proceedings shall be closed to the public and confidential.  All
records relating thereto shall be permanently sealed, except as necessary to
obtain court confirmation of the arbitrator’s decision.  The
arbitrator will be bound by the terms and conditions of this Agreement and shall
have no power, in rendering his or her award, to alter or depart from any
express provision of these agreements, and his or her failure to observe this
limitation shall constitute grounds for vacating the award.  The award
of the arbitrator shall be final and binding upon the parties, and judgment upon
the award may be entered in any court having jurisdiction
thereof.


    
      
         


      

      
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    8.7  Buyer’s Indemnification
Obligations.  From and after the Closing, Buyer agrees to
indemnify and hold Seller and Parent and their successors and assigns, (the
“Seller Indemnified
Parties”) harmless and shall reimburse Seller Indemnified Parties for any
Damages incurred or suffered by Seller Indemnified Parties arising out of: (a)
any misrepresentation or breach of representation or warranty, covenant or
agreement made or to be performed by Buyer under this Agreement, (b) any of the
Assumed Liabilities, (c) the operation of the Business following the Closing.
Notwithstanding the foregoing, Buyer shall have no liability (for
indemnification or otherwise) with respect to claims under this Section 8.7
until the total of all Damages with respect to such matters exceeds Fifty
Thousand Dollars ($50,000) and then for the amount of all Damages up to the
Cap.  Notwithstanding the foregoing, if Seller or Parent has actual
knowledge at or before the Closing of any breach or non-fulfillment of a
representation, warranty, covenant or agreement herein by Buyer and Seller and
Parent nevertheless proceed to consummate the transaction contemplated hereby,
then without further act on the part of any party hereto, Seller and Parent
shall be deemed to have waived their rights with respect to such breach or
non-fulfillment (but not without respect to any other breach or
non-fulfillment).

     

    8.8  Exclusive
Remedy.  Notwithstanding anything contained in this Agreement
to the contrary, the Parties acknowledge and agree that the indemnities set
forth in this Article VIII will be the sole and exclusive remedy of the Parties
for any breach, default, inaccuracy or failure of any of the warranties,
representations, conditions, covenants or agreements by the other contained in
this Agreement, whether for Damages or other legal or equitable relief and
whether based upon contract, tort or upon any other theory of law and, with
respect to indemnification, where applicable, be subject to the limitations and
procedures contained in this Article VIII.

     

    ARTICLE
IX

    TERMINATION,
AMENDMENT AND WAIVER

     

    9.1  Termination.  This
Agreement may be terminated:

     

    (a)          at
any time prior to the Closing Date by mutual written agreement of Buyer, Seller
and Parent;

     

    (b)          by
Seller and Parent, by written notice to Buyer if any event or circumstance
occurs that makes it impossible to satisfy any condition precedent under Section
7.2 (unless the failure results primarily from any action or inaction of Seller
or Parent in violation of the terms of this Agreement);

     

    (c)          by
Seller and Parent, by written notice to Buyer if any of Buyer’s representations
and warranties made in Article V were materially inaccurate when
made;

     

    (d)          by
Buyer by written notice to Seller and Parent if any event or circumstance occurs
that makes it impossible to satisfy any condition precedent under Section 7.1
(unless the failure results primarily from any action or inaction of Buyer in
violation of the terms of this Agreement); or

     

    (e)          by
Buyer if any of the representations and warranties made in Article III or
Article IV were materially inaccurate when made.


    
      
         


      

      
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    9.2  Effect of
Termination.  If this Agreement is terminated as permitted by
Section 9.1, such termination shall be without liability of any Party to the
other Parties.  This Section ‎9.2 and the
provisions of Article X shall survive any termination hereof pursuant to Section
9.1.

     

    ARTICLE
X

    MISCELLANEOUS

     

    10.1 Expenses; Transfer
Taxes.  Except as otherwise provided in this Agreement, whether
or not the Closing takes place, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the Party incurring such costs and expenses.  For the avoidance of
doubt, Parent, and not Seller nor Buyer, shall be responsible for any and all
fees or other costs to any third party advisors to Seller or Parent incurred
prior to the Closing.  Notwithstanding any provision of this Agreement
to the contrary, any transfer, documentary, sales, use, registration and other
such Taxes incurred in connection with the consummation of the transactions
contemplated by this Agreement shall be borne equally by Seller and Parent, on
the one hand, and Buyer, on the other hand.

     

    10.2 Notices.  All
notices, requests and other communications hereunder shall be in writing and
shall be sent, delivered or mailed, addressed or sent by
telecopier:

     

    (a)          if
to Seller or Parent, to:

     

    Fortress
International Group, Inc.

    9841
Broken Land Parkway, Suite 100

    Columbia,
Maryland  21046

    Attention:
Thomas P. Rosato

    Fax:  410-312-9979

     

    with a
copy to:

     

    Mintz
Levin Cohn Ferris Glovsky & Popeo, P.C.

    666 Third
Avenue

    New York,
New York  10017

    Attention:  Kenneth
R. Koch, Esq.

    Fax:  212-983-3115

     

    (b)          if
to Buyer, to:

     

    Rubicon
Acquisition Company, LLC

    3350
Riverwood Parkway, Suite 1900

    Atlanta,
Georgia 30339

    Attention:
James Embley

    Fax:  _________________

     

    with a
copy to (which shall not constitute notice):


    
      
         


      

      
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    Paul
Berg, Esq.

    Berkowitz,
Trager & Trager, LLC

    8 Wright
Street

    Westport,
Connecticut  26880

    Fax:  203-226-3801

     

    Each such
notice, request or other communication shall be given (i) by mail (postage
prepaid, registered or certified mail, return receipt requested), (ii) by hand
delivery, (iii) by nationally recognized courier service or (iv) by telecopier,
receipt confirmed (with a confirmation copy to be sent by first class mail;
provided that the failure to send such confirmation copy shall not prevent such
telecopier notice from being effective).  Each such notice, request or
communication shall be effective (i) if mailed, three calendar days after
mailing at the address specified in this Section 10.2 (or in accordance with the
latest unrevoked written direction from such Party), (ii) if delivered by hand
or by nationally recognized courier service, when delivered at the address
specified in this Section 10.2 (or in accordance with the latest unrevoked
written direction from the receiving Party) and (iii) if sent by telecopier,
when such telecopy is transmitted to the fax number specified in this Section
10.2 (or in accordance with the latest unrevoked written direction from the
receiving Party), and the appropriate confirmation is received.

     

    10.3 Severability.  The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.  If any provision of
this Agreement, or the application thereof to any Person or any circumstance, is
found to be invalid or unenforceable in any jurisdiction, (i) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid or enforceable, such provision and (ii) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other
jurisdiction.

     

    10.4 Amendments and
Waivers.  This Agreement may not be amended, supplemented,
modified or terminated except by an instrument in writing signed on behalf of
Buyer, Seller and Parent.  The Parties hereto may, by an instrument in
writing signed on behalf of such Party, waive compliance by any other Party with
any term or provision of this Agreement that such other Party was or is
obligated to comply with or perform.  No failure or delay by any Party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.  No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision of this
Agreement, whether or not similar, nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.

     

    10.5 Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which shall, taken together, be considered one and
the same agreement. The execution of this Agreement by any of the Parties may be
evidenced by way of a facsimile transmission of such Party’s signature, or a
photocopy of such facsimile transmission, and such facsimile signature shall be
deemed to constitute the original signature of such Party
thereto.


    
      
         


      

      
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    10.6 Entire
Agreement.  This Agreement (together with the agreements,
Schedules and certificates referred to herein or delivered pursuant hereto)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.

     

    10.7 No Third Party
Beneficiaries.  Except for the rights of Buyer Indemnified
Parties under Article VIII, this Agreement is intended solely for the benefit of
the Parties hereto and is not intended to confer upon any other Person any
rights or remedies.

     

    10.8 Governing
Law.  This Agreement and all claims arising out of or relating
to it shall be governed by and construed in accordance with the Laws of the
State of Delaware, without regard to the conflicts of Laws rules
thereof.

     

    10.9 Consent to Jurisdiction;
Waiver of Jury Trial.  Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the District of Maryland, or if such court does not have jurisdiction, the
Howard County Circuit Court located in Ellicott City, Maryland, or if such court
does not have jurisdiction, the Howard County District Court, located in
Ellicott City, Maryland, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated
hereby.  Each of the parties hereto further agrees that service of any
process, summons, notice or document by U.S. certified mail to such Party’s
respective address set forth in Section 10.2 shall be effective service of
process for any Legal Proceeding in Maryland with respect to any matters to
which it has submitted to jurisdiction as set forth above in the immediately
preceding sentence.  Each of the parties hereto irrevocably and
unconditionally waives any objection to the laying of venue of any Legal
Proceeding arising out of this Agreement or the transactions contemplated hereby
in (i) the United States District Court for the District of Maryland or (ii) the
Howard County Circuit Court or Howard County District Court, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such Legal Proceeding brought in any such court has been
brought in an inconvenient forum.  EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.

     

    10.10    Publicity.  Subject
to its legal obligations (including requirements of stock exchanges and other
similar regulatory bodies), the Parties shall consult with each other with
respect to the timing and content of all announcements regarding this Agreement
or the transactions contemplated hereby and shall use reasonable efforts to
agree upon the text of any such announcement prior to its release; provided,
however, that, to the extent that any announcement regarding this Agreement or
the transactions contemplated hereby is made at any time, each Party may issue
further announcements (including press releases, tombstones and similar
announcements) without the consent of the other Party so long as such further
announcements are consistent with, and not broader in scope than, the previously
issued announcement.


    
      
         


      

      
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    10.11    Assignment.  Neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
by any of the Parties without the prior written consent of each of the other
Parties, except that Buyer may (i) assign any of its rights under this Agreement
to any one or more Affiliates, (ii) make a collateral assignment of any rights
or benefits hereunder to any lender, or (iii) assign any or all of its rights,
interests or obligations hereunder in connection with any sale of Buyer or of
all or substantially all of the assets of Buyer; provided, however, that
notwithstanding any such assignment, Buyer shall be and remain, jointly and
severally with such assignee, primarily liable for all of the obligation of the
“Buyer” under this Agreement.  Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the Parties and their respective successors and permitted
assigns.  Any attempted assignment in violation of the terms of this
10.11 shall be null and void, ab initio.  Assignment
by any Party in accordance with the terms of this 10.11 shall not relieve the
assignor of any liability.

     

    10.12    Construction.  The
parties have participated jointly in the negotiation and drafting of this
Agreement.  In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as of drafted jointly
by the parties and no presumption of burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.  References in this Agreement to any gender include
references to all genders, and references to the singular include references to
the plural and vice versa.  The words “include”, “includes” and
“including” when used in this Agreement shall be deemed to be followed by the
phrase “without limitation”.  Unless the context otherwise requires,
references in this Agreement to Articles, Sections, Exhibits and Schedules shall
be deemed references to Articles and Sections of, and Exhibits and Schedules to
this Agreement.  Unless the context otherwise requires, the words
“hereof”, “hereby”, “hereunder” and “herein” and words of similar meaning when
used in this Agreement refer to this Agreement in its entirety and not to any
particular Article, Section or provision of this Agreement.  All
references in this Agreement to “dollars” and “$” are to United States
dollars.  Any definition of or reference to any Law, agreement,
instrument or other document herein will be construed as referring to such Law,
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified.  Any definition of or reference to
any statute will be construed as referring also to any rules and regulations
promulgated thereunder.

     

    [SIGNATURE
PAGE FOLLOWS]


    
      
         


      

      
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    IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the day and year first above written.

     

    
      
        
          
            
              
                	
                        FORTRESS
      INTERNATIONAL GROUP, INC.

                      	 
      	
                        RUBICON
      INTEGRATION, LLC

                      
	 
      	 
      	 
      	 
      	 
      
	
                        By:

                      	
                        /s/ Thomas P. Rosato

                      	 
      	
                        By:

                      	
                        /s/ Timothy C. Dec

                      
	
                        Name:

                      	
                        Thomas P. Rosato

                      	 
      	
                        Name:

                      	
                        Timothy C. Dec

                      
	
                        Title:

                      	
                              
                          Chief Executive
      Officer

                        

                      	 
      	
                        Title:

                      	
                        Chief Financial Officer

                      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                        RUBICON
      ACQUISITION COMPANY,

                        LLC

                      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                        By:

                      	/s/
      James S. Embley
	 
      	 
      	 
      	
                        Name:

                      	James
      S. Embley
	 
      	 
      	 
      	
                        Title:

                      	Chief
      Executive
Officer


              

            

          

        

      

    

    


    Each of
undersigned members of Buyer agrees, on behalf of himself only, to be bound by
the provisions of Sections 6.6 and 6.7 of this Agreement on the condition that
such member shall be liable only for his own individual breach of said
Sections:

    


    
      
        	
                /s/
      James Embley

              
	
                  

              
	
                James
      Embley

              
	 
      
	
                /s/
      Eric Holzworth

              
	
                  

              
	
                Eric
      Holzworth

              
	 
      
	
                /s/
      William Pirrone

              
	
                  

              
	
                William
      Pirrone