**TABLE OF CONTENTS**               Page          1. Transfer of Assets  4   1.01 Intangible Assets  4   1.02 Contracts  4   1.03 Personal Property  5   1.04 Software, Records and Documents  5   1.05 Rights of Action  5   1.06 [Intentionally Omitted]  5   1.07 Non-Assignable Assets  5   1.08 Transfer  6          2. Excluded Assets  6          3. Liabilities  6   3.01 Excluded Liabilities  6   3.02 Assumed Liabilities  6          4. Purchase Price  7   4.01 Amount  7   4.02 Purchase Price  8   4.03 Allocation of Purchase Price  8   4.04 Payments of Transfer Tax  8   4.05 [Intentionally Omitted]  9   4.06 [Intentionally Omitted]  9          5. Noncompetition Agreement  9          6. Closing  9          7. Representations and Warranties of Seller  9   7.01 Corporate Organization  9   7.02 Authorization of Agreement  9   7.03 Absence of Undisclosed Liabilities  10   7.04 Absence of Certain Changes  10   7.05 No Licenses and Permits  11   7.06 Title to Purchased Assets  11   7.07 Sufficiency and Condition of Purchased Assets  11   7.08 Assumed Contracts  11   7.09 Litigation and proceedings; Product Liability  12   7.10 Taxes  12   7.11 Employee Benefit Matters  12   7.12 Intellectual Property  13   7.13 Compliance with Law  15 
 

 
               Page            7.14 Customers and Suppliers  16   7.15 Warranties  16   7.16 Brokerage and Finders Fees  17   7.17 Internal Control Over Financial Reporting  17   7.18 Accounts Receivable  17   7.19 Consents  17   7.20 Information Technology Security  17   7.21 Disclosure  17          8. Representations and Warranties of Purchaser  17   8.01 Corporate Organization  17   8.02 Authorization of Agreement; No Conflict  18   8.08 Disclosure  18          9. Post-Closing Covenants and Agreements of Purchaser  18   9.01 Cooperation in Obtaining Consents  18   9.02 Employees  18   9.03 Efforts to Perform  19          10. [Intentionally Omitted]  19          11. Post-Closing Covenants of Both Parties  19   11.01 Confidentiality  19   11.02 Announcement  20          12. Conditions Precedent to Seller’s Obligations  20   12.01 Accuracy of Representations and Warranties  20   12.02 Officer’s Certificate  20   12.03 Deliveries to Seller on or Prior to Closing  20          13. Conditions Precedent to Purchaser’s Obligations  21   13.01 Accuracy of Representations and Warranties  21   13.02 Officer’s Certificate  21   13.03 Due Diligence  21   13.04 Deliveries on or Prior to Closing  21   13.05 Approvals and Permits; No Violation of Law  22   13.06 Operation in Ordinary Course  23          14. Indemnification by Purchaser  23   14.01 Indemnification  23   14.02 Procedures  23   14.03 Survival of Indemnification  24   14.04 Indemnification Threshold  24   14.05 Remedies Cumulative  25   14.06 Materiality  25 
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               Page          15. Indemnification by Seller  25   15.01 Indemnification  25   15.02 Procedures  25   15.03 Survival of Indemnification  27   15.04 Indemnification Threshold  27   15.05 Remedies Cumulative  27   15.06 Materiality  27   15.07 Off-Set  27          16. Termination and Waiver  27   16.01 Termination  27   16.02 Effect of Termination  28   16.03 Remedies  28   16.04 Extension; Waiver  29          17. Miscellaneous  29   17.01 Amendment and Severability  29   17.02 Waiver  29   17.03 Notices  29   17.04 Benefit  30   17.05 Expenses  30   17.06 Warranty Claims  30   17.07 Specific Performance  31   17.08 Dispute Resolution  31   17.09 Counterparts  31   17.10 Entire Agreement  31   17.11 Post-Closing Matters  31   17.12 Captions  31   17.13 Construction  32 
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   **Exhibit List:**     Exhibit A Form of Noncompetition Agreement — SellerExhibit B Form of Assignment and Assumption AgreementExhibit C [intentionally omitted]Exhibit D Form of Warranty Bill of SaleExhibit E Form of Patent AssignmentExhibit F Form of Trademark Assignment   **Schedule List:**     Schedule 1.01 Intangible AssetsSchedule 1.02 Assumed ContractsSchedule 1.03 Personal PropertySchedule 2.06 Excluded AssetsSchedule 3.02 Assumed LiabilitiesSchedule 4.01(b) CapMed ProspectsSchedule 4.03 Purchase Price AllocationSchedule 9.02(a) List of CapMed employees who are not Transferred Employees   Disclosure Schedules     7.03  7.04  7.06  7.08  7.09  7.11  7.12(b)  7.12(e)  7.12(g)  7.15  7.18  7.19  
 

 
ASSET PURCHASE AGREEMENT     THIS ASSET PURCHASE AGREEMENT is made this 7th day of January, 2009 by and between BIO-IMAGINGTECHNOLOGIES, INC., a Delaware corporation (“Seller”) and MBI BENEFITS, INC., a Michigancorporation (“Purchaser).RECITALS     A. WHEREAS, Seller, through its “CapMed” Division (“CapMed”), is engaged in the business ofproviding software, capable of being operated by consumers across database platforms, to helpconsumers manage their health and wellness information using personal health records (the “CapMedBusiness”).     B. WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to buy from Sellercertain assets, rights, and claims used or useful in the operation of the CapMed Business, on theterms and conditions set forth in this Agreement.     C. WHEREAS, each of the board of directors of Purchaser and Seller have authorized andapproved the transactions contemplated hereby on the terms set forth in this Agreement.AGREEMENTS     In consideration of the Recitals and the mutual promises, covenants and agreements containedin this Agreement, the parties, intending to be legally bound, hereby agree as follows:     1. Transfer of Assets. Subject to the terms and conditions of this Agreement andexcept for the Excluded Assets (as defined in section 2), Seller agrees to sell and deliver toPurchaser and Purchaser agrees to purchase from Seller as of the Closing Date (as defined insection 6 below) only the assets owned, utilized, or held for use by Seller that are directly andexclusively related to the CapMed Business (such assets, the “Purchased Assets”). The PurchasedAssets shall include, without limitation, the following:          1.01 Intangible Assets. All of Seller’s rights, title and interest in and to allgoodwill, patents, licenses, trade names, domain names, assumed names, trade dress, businessidentifiers, trademarks, service marks, copyrights, applications and registrations for theforegoing, trade secrets, confidential information, processes, systems, techniques, know-how,development plans, other intellectual property, employee agreements and covenants respectingintellectual property, causes of action (including all claims for infringement), uniform resourcelocators (including the uniform resource locators listed on Schedule 1.01), and all otherintangible assets of Seller, in each case which are necessary for the operation of the CapMedBusiness (the “Intangible Assets”), including the Intangible Assets listed on Schedule 1.01.          1.02 Contracts. All rights of Seller under the contracts listed in Schedule 1.02 (the“Assumed Contracts”) together with any and all accounts receivable of the Seller under the AssumedContracts (the “Accounts Receivable”).
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          1.03 Personal Property. All computer hardware, equipment, specifications and spareparts utilized or held for use by Seller that is directly related to the operation of the CapMedBusiness, including the equipment listed on Schedule 1.03 (the “Personal Property”).          1.04 Software, Records and Documents.               (a) All computer software whether in object code or source code, electronic data processingsystems, processing techniques, formulae, algorithms, flow charts, and all documentation and workpapers related thereto, whether in digital or hard copy format, whether relating to finishedproducts, products under development or research, that is necessary for the operation of the CapMedBusiness (the “Software”); and               (b) All books and records, vendor lists, dealer and customer lists, work orders, creditinformation and correspondence, operating data, drawings, blueprints, financial information and allother records and documents used by Seller in connection with its operation of the CapMed Business(the “Documents”).          1.05 Rights of Action. All refunds, claims, causes of action (including claims forinfringement), choses in action, rights of recovery, rights of set off, and rights of recoupmentrelated to the Purchased Assets.          1.06 [Intentionally Omitted]          1.07 Non-Assignable Assets. In those cases where any of the Purchased Assets are notby their terms assignable or which require the consent of a third party in connection with thetransactions contemplated by this Agreement, Seller shall, after the Closing Date, use itsreasonable best efforts, and Purchaser shall cooperate in all reasonable respects with Seller, toobtain all consents and waivers and to effect assignments and transfers necessary to convey suchPurchased Assets to Purchaser. Anything contained herein to the contrary notwithstanding, thisAgreement shall not constitute an agreement to assign any of the Purchased Assets if any actual orattempted assignment or transfer thereof, without the consent of any party thereto other thanSeller, would (i) constitute a breach thereof or otherwise not be permitted under applicable law,(ii) increase any obligation of Seller thereunder, or (iii) create any additional materialobligation of Seller thereunder (collectively (i), (ii) and (iii) above shall be referred to as the“Non-Assignable Assets”). If any such Non-Assignable Assets are not able to be assigned ortransferred, Seller shall use its reasonable best efforts to provide or cause to be provided toPurchaser, to the extent permitted by applicable law, the benefits of any such Non-AssignableAssets. If Purchaser receives the benefit of any such Non-Assignable Asset, Purchaser shallperform and discharge on behalf of Seller all of Seller’s liabilities, obligations or commitments,if any, thereunder relating to the period following the Closing Date, in accordance with theprovisions thereof other than those arising by reason of a breach or nonperformance by Seller withrespect to such Non-Assignable Asset. The provisions of this paragraph shall not affect the rightof Purchaser to elect either to not consummate the transactions contemplated by this Agreement ifthe conditions to its obligations contained in section 13 have not otherwise been fulfilled, or toconsummate the transactions contemplated by this Agreement.
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          1.08 Transfer. Seller shall transfer the Purchased Assets free and clear of allliabilities, obligations and Liens (as defined in section 7.06 below) of any kind.     2. Excluded Assets. Notwithstanding anything herein to the contrary, except for thePurchased Assets, from and after the Closing Date, Seller shall retain all of its respective right,title and interest in and to, and there shall be excluded from the sale, conveyance, assignment ortransfer to Purchaser hereunder, and the Purchased Assets shall not include, the following assetsand properties (such retained assets and properties being the “Excluded Assets”):          2.01 all assets of Seller which are not directly related to the Cap Med Business and allassets and services otherwise shared by the CapMed Business and Seller;          2.02 all of Seller’s rights under leases for real property used in connection with the CapMedBusiness;          2.03 all of Seller’s furniture and fixtures used in connection with the business of the CapMedBusiness;          2.04 all corporate seals, charter documents, minute books and other organizational documentsrelated to the CapMed Business;          2.05 the assets, properties and rights specifically set forth on Schedule 2.05; and          2.06 all rights of Sellers under this Agreement.     3. Liabilities.          3.01 Excluded Liabilities. Except as specifically provided in this section 3 and asset forth on Schedule 3.02, Purchaser shall not assume, and shall not be obligated to pay, performor discharge any debts, liabilities or obligations of Seller, whether actual, contingent oraccrued, known or unknown, which liabilities shall be retained by Seller and shall hereafter bereferred to as the “Excluded Liabilities.”          3.02 Assumed Liabilities.               (a) Subject to the terms and conditions of this Agreement, Purchaser shall, at Closing (asdefined in section 6 below), assume and pay, perform and discharge in accordance with their termsonly, the debts, liabilities and obligations of Seller as set forth in Schedule 3.02, or arisingafter the Closing, of the CapMed Business, including liabilities and obligations arising after theClosing under the Assumed Contracts (to the extent such contracts are properly and effectivelyassigned to Purchaser before or after the Closing), but not including any liability or obligationarising out of the breach, nonperformance or defective performance by Seller of any of the AssumedContracts or out of any other event or circumstance occurring on or prior to the Closing(collectively, the “Assumed Liabilities”).
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               (b) Purchaser shall not be liable for any other matter, event or circumstance occurring priorto the close of business on the Closing Date, including items which would not constitute a breachof a representation and warranty in this Agreement, items disclosed in section 7 or the Schedulesto section 7 of this Agreement or items otherwise known to Purchaser unless such items areotherwise Assumed Liabilities under this section 3.     4. Purchase Price.          4.01 Amount. In consideration of Seller’s sale, assignment and transfer of thePurchased Assets and the performance by it of all of the terms, covenants and provisions of thisAgreement, Purchaser shall assume the Assumed Liabilities and pay Seller as follows:               (a) Closing Payment. At the Closing, Purchaser shall pay Seller the sum of FiveHundred Thousand Dollars ($500,000) in cash via wire transfer to an account or accounts designatedin writing by the Seller (the “Closing Payment”).               (b) Earnout. If Purchaser or any of Purchaser’s affiliates enter into any contract(s)with any of the “prospects” set forth on Schedule 4.01(b) (the “CapMed Prospects”) during thefirst six months of 2009 (each a “First Earnout Contract”) then, subject to section 4.01(c),Purchaser shall pay to Seller an amount equal to 25% of the gross revenues recognized by Purchaserduring any period ending on or prior to December 31, 2010 from the sale pursuant to such FirstEarnout Contract of CapMed Products, as defined below (the “First Earnout”). If Purchaser or anyof Purchaser’s affiliates enter into any contract(s) with any of the CapMed Prospects during theperiod commencing on July 1, 2009 and ending on December 31, 2010 (each a “Second EarnoutContract”) then, subject to section 4.01(c), Purchaser shall pay to Seller an amount equal to 15%of the gross revenues recognized by Purchaser on or prior to December 31, 2010 from the salepursuant to such Second Earnout Contract of CapMed Products (the “Second Earnout” and together withthe First Earnout, the “Earnout”). For the purposes of this Agreement, (i) “CapMed Products” shallmean the CapMed Personal Heath Management Platform, Personal HealthKey, Personal Health RecordCD-ROM, Online PHR, and ICE First; and (ii) “gross revenues recognized” shall mean revenuesrecognized from the sale of CapMed Products, net of any discounts, returns, allowances and thelike, calculated in accordance with United States Generally Accepted Accounting Principles(“GAAP”).               (c) Earnout Statement; Payment. Not later than January 25 of 2010 and 2011, Purchasershall prepare and deliver to Seller a statement (the “Earnout Statement”) setting forth inreasonable detail Purchaser’s determination of the Earnout for the calendar year just ended.Subject to any delay incurred for the resolution of disputes pursuant to section 4.01(e), anyEarnout payable with respect to 2009 gross revenues recognized shall be paid not later than March1, 2010, and any Earnout payable with respect to 2010 gross revenues recognized shall be paid notlater than March 1, 2011.               (d) Seller’s Audit. During the 30-calendar day period following receipt of an EarnoutStatement, Seller, or its designated agents, shall have the right at any time during normalbusiness hours and with prior notice to Purchaser to inspect that portion of Purchaser’s books andrecords applicable to the calculation of the Earnout for purposes of
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verifying the accuracy of the Earnout determination (the “Seller’s Audit”). Any and allexpenses relating to the Seller’s Audit shall be borne solely and exclusively by Seller.               (e) Disputes. If Seller delivers to Purchaser, within thirty (30) calendar daysfollowing receipt of the Earnout Statement, written notice disagreeing with the determination ofthe Earnout Statement (with the failure of Seller to deliver such written notice within theforegoing 30-calendar day period being deemed to be conclusive acceptance of such calculations),Purchaser and Seller shall attempt to resolve such dispute and if they have not done so withinthirty (30) calendar days after Seller provides notice of such dispute then the parties agree thatthey shall jointly refer such dispute to Grant Thornton, LLP or such other accounting firm mutuallyagreed by Purchaser and Seller (the “Accountant”). Such written notice of disagreement shall setforth in reasonable detail the basis of Seller’s disagreement with the calculation of the EarnoutStatement and Seller’s calculation of what it believes is the Earnout Statement. The Accountantshall, acting as a certified public accountant and not as an arbitrator, issue a report settingforth its determination of the disputed item(s) of the Earnout Statement, within sixty (60)calendar days after such dispute is referred to it, and such determination shall be final andbinding upon the parties. Purchaser and Seller shall provide the Accountant with all financialinformation concerning the CapMed Business and the relevant contracts that is reasonably requestedby the Accountant for purposes of making the determination required by this Section 4.01(e). Thisprovision for dispute resolution shall, notwithstanding any other provision set forth in thisAgreement, be specifically enforceable by the parties. Any and all expenses relating to theengagement of, and the calculation of the Earnout Statement by, the Accountants shall be borneequally by Purchaser and Seller (i.e., fifty percent (50%) by Purchaser and fifty percent (50%) bySeller). The portion of such expenses payable by Seller may be deducted from any Earnout due toSeller. In the event of a dispute pursuant to this section 4.01(e), the Earnout shall be paidwithin five (5) business days after the earlier of (i) the joint written agreement of Purchaser andSeller, or (ii) the issuance of the Accountant’s report pursuant to this section 4.01(e).          4.02 Purchase Price. The Closing Payment together with the Earnout (if any) shall becalled the “Purchase Price”.          4.03 Allocation of Purchase Price. The Purchase Price shall be assigned and allocatedto the Purchased Assets in the manner mutually agreed upon by the parties post-Closing and inaccordance with the priority of allocation described on Schedule 4.03. The parties shall file allTax Returns (including amended returns and claims for refund) and information reports in a mannerconsistent with such allocation, and shall use their reasonable best efforts to sustain suchallocation in any subsequent tax audit or tax dispute.          4.04 Payments of Transfer Tax. All taxes imposed, arising out of, in connection withor attributable to the sale and transfer of the Purchased Assets to Purchaser on or prior toClosing shall be borne by Seller, including, without limitation, all sales, use, value added,stamp, gross receipts, registration, transfer, excise, conveyance and other similar taxes. Sellershall prepare and timely file all returns in connection with such taxes required to be filed inrespect of such taxes. Seller shall indemnify and hold Purchaser harmless with respect to any suchtax which might be levied on or collected from Purchaser.
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     5. Noncompetition Agreement. At Closing, Seller shall enter into a NoncompetitionAgreement with Purchaser in the form attached hereto as Exhibit A (the “Seller NoncompetitionAgreement”).     6. Closing. The closing (the “Closing”) of the transactions pursuant to thisAgreement shall take place at the offices of Reinhart Boerner Van Deuren s.c., 1000 North WaterStreet, Suite 2100, Milwaukee, Wisconsin, on such date as is mutually acceptable to Purchaser andSeller (provided that the conditions to Closing contained in sections 12 and 13, below, have beenmet or waived), but not later than five (5) business days following the receipt by Purchaser orPurchaser’s affiliates of all Required Approvals) as defined in section 13.05 below (the “ClosingDate”), or such other time and place as Seller and Purchaser may agree.     7. Representations and Warranties of Seller. Seller represents and warrants toPurchaser and its affiliates as of the date hereof and as of the Closing Date that:          7.01 Corporate Organization. Seller is a corporation duly incorporated and validlyexisting under the laws of the State of Delaware. Seller has filed all reports required to befiled with the Secretary of State of the State of Delaware. Seller has all requisite power andauthority to own, operate and lease its properties and carry on the CapMed Business as it is nowconducted. Seller is duly licensed and qualified to do business in and is in good standing underthe laws of each state or other jurisdiction where the failure to do so would have a materialadverse effect on the CapMed Business.          7.02 Authorization of Agreement. Seller has all necessary corporate power andauthority to execute and deliver this Agreement and to consummate the transactions provided forherein. The execution and delivery of this Agreement by Seller and the performance by it of theobligations to be performed hereunder have been duly authorized by all necessary and appropriateaction by its Board of Directors. The execution and delivery of this Agreement and the otheragreements to be executed and delivered pursuant to this Agreement and the consummation of thetransactions contemplated hereby and thereby do not and will not, with or without the giving ofnotice or the passage of time, conflict with, result in or constitute a breach, default, right toaccelerate or loss of rights under, or result in the creation of any Lien (as defined below)pursuant to, the terms or conditions of Seller’s Certificate of Incorporation and By-Laws, any law,rule, regulation, statute, order, judgment or decree or any contract, agreement, lease, license orinstrument to which Seller is a party or by which Seller, the CapMed Business, or the PurchasedAssets are bound or affected. This Agreement is, and each other agreement and document to beexecuted by Seller pursuant hereto will be when so executed, a valid and binding obligation ofSeller and enforceable in accordance with its terms, except that enforcement may be limited bybankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’rights generally and by general equitable principles.          7.03 Absence of Undisclosed Liabilities. Except as set forth on Schedule 7.03, thereare no liabilities or obligations, direct or indirect, absolute or contingent, known or unknown, orany outstanding evidence of indebtedness arising out of or relating to the CapMed Business or thePurchased Assets. There are no post-Closing liabilities or current obligations relating to theAssumed Contracts, nor are there any liabilities or obligations arising out of any breach,nonperformance or defective performance by Seller of any Assumed Contract.
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          7.04 Absence of Certain Changes. Except as set forth in Schedule 7.04, since October31, 2008 Seller has conducted the CapMed Business only in the ordinary course and in a mannerconsistent with past practice and there has been no change or event that would have or has had amaterial adverse effect on the CapMed Business. Without limiting the generality of the foregoing,except as set forth in Schedule 7.04, Seller has not:               (a) placed or permitted any Lien (as defined in section 7.06 below) on any of the PurchasedAssets;               (b) sold, leased, licensed, abandoned or transferred any of its other assets, tangible orintangible, that are necessary for the operation of the CapMed Business except in the ordinarycourse of business;               (c) terminated, amended or instituted any employment contract, bonus plan, option plan,incentive plan, profit sharing plan, pension plan, retirement plan or other similar arrangement orplan directly related to the CapMed Business;               (d) made any commitments for capital expenditures related to the CapMed Business, except forcapital expenditures made in the ordinary course of business not in excess of Twenty-five ThousandDollars ($25,000) in the aggregate;               (e) with respect to the Assumed Contracts, changed its credit policies or practices oraccelerated the collection of accounts receivable whether by offering discounts or incentives orotherwise, or delayed the payment of accounts payable, except as necessary with respect to specificcustomers or vendors in the ordinary course of business consistent with past practices, or asrequired by applicable law;               (f) with respect to the CapMed Business, materially increased the rate or terms ofcompensation (including termination and severance pay) payable or to become payable by Seller toits employees or agents, or materially increased the rate or terms of any bonus, insurance, pensionor other employee benefit plan, program or arrangement made to, for or with any such employees oragents, except increases occurring in the ordinary course of business consistent with past practiceor as required by applicable law;               (g) experienced any damage to or destruction or loss of any asset or property of Seller,whether or not covered by insurance, which had a material adverse effect on the CapMed Business;               (h) materially changed its accounting principles or methods with respect to CapMed;               (i) made any material changes in policies or practices relating to the sale, licensing ormaintenance of products or services related to the CapMed Business or the terms of accountingtherefor; or               (j) entered into any agreement or commitment (whether written or oral) to do any of theforegoing.
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          7.05 No Licenses and Permits. There are no rights in government licenses, approvals,permits and authorizations (nor are there any applications for the foregoing) necessary ordesirable for the ownership and operation of the CapMed Business (the “Licenses and Permits”).          7.06 Title to Purchased Assets. Seller has good and marketable title to all of thePurchased Assets, free and clear of all mortgages, security interests, title retention agreements,options to purchase, rights of first refusal, liens, easements, encumbrances, restrictions andother burdens of any nature whatsoever (“Liens”), except for those Liens described on Schedule7.06. Except as set forth in Schedule 7.06, none of the Purchased Assets are subject to anyrestrictions with respect to the transferability thereof and Seller has complete and nonrestrictedpower and right to sell, assign, convey and deliver the Purchased Assets to Purchaser ascontemplated hereby. At Closing, Purchaser will receive good and marketable title to all thePurchased Assets, free and clear of all Liens.          7.07 Sufficiency and Condition of Purchased Assets. The Purchased Assets include allassets (including intangible assets) that are material to the operation of the CapMed Business. Nomaintenance outside the ordinary course of business is needed with respect to the Purchased Assets.None of the Purchased Assets, or the ownership or operation thereof, is in material violation ofany law or other ordinance, code, rule or regulation. The Purchased Assets are in all respects ingood condition and working order (reasonable wear and tear excepted).          7.08 Assumed Contracts.               (a) There are no amounts due and owing by the Seller in connection with any of the AssumedContracts, except as set forth on Schedule 7.08. The Assumed Contracts are legally valid andbinding and in full force and effect with respect to the parties thereto. Seller is not in defaultor breach of any Assumed Contract, and Seller has no notice or knowledge of any claimed breach, orof the occurrence of any event which after the passage of time or the giving of notice or bothwould constitute a breach by any party to any Assumed Contract. Seller has not received any noticeof termination of any Assumed Contract, nor has Seller any knowledge of and has not received anynotice of any facts or events which could result in any such termination.               (b) None of the rights of Seller under the Assumed Contracts have been or will be impaired inany respect by the execution and delivery of this Agreement or the consummation of the transactionscontemplated by this Agreement nor will the assignment of any Assumed Contract to Purchaserconstitute a breach of such Assumed Contract. All of the rights of Seller under the AssumedContracts will be enforceable by Purchaser after Closing without the consent or agreement of anyother party, except for such consents listed on Schedule 7.08.               (c) Seller has made no performance guarantee, nor has Seller any minimum production or minimumpurchase obligations, nor is Seller otherwise subject to any penalty or liquidated damages based onperformance or purchase requirements (“Performance Requirements”) that relate to the CapMedBusiness in any way. Seller is in material compliance with and is not delinquent nor behindschedule with respect to any Performance Requirements.
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          7.09 Litigation and Proceedings; Product Liability. Except as described on Schedule7.09, there is no claim (including any product liability, malpractice or errors or omission claim),demand, cause of action, investigation, inquiry, suit, action or legal, administrative, arbitrativeor other proceeding (“Claim”) pending or to Seller’s knowledge threatened against Seller affectingthe Purchased Assets, and, to Seller’s knowledge, Seller is not under investigation with respect toany charge concerning violation of any law or administrative regulation, federal, local or state,in respect to its ownership and operation of the CapMed Business or the Purchased Assets. Setforth on Schedule 7.09 is a summary of all Claims that were made against the Seller within thethree years prior to the date of this Agreement relating to the Purchased Assets or the operationof the CapMed Business, including a brief description of each such Claim, the amount or value ofeach such Claim and a brief description of the current status or final resolution of each suchClaim.          7.10 Taxes.               (a) There are no Liens on any of the Purchased Assets that have arisen in connection with anyfailure (or alleged failure) to pay any Taxes and all Taxes related to the CapMed Business (i) thatare required to be withheld by Seller have been withheld and (ii) have been (or will be) duly andtimely paid to the proper taxing authority.               (b) Seller has duly filed or caused to be filed, in a timely manner, with the appropriatetaxing authorities, all Tax Returns related to the CapMed Business that are required to be filed(determined with regard to any timely extensions) by it on or before the Closing Date, (ii) eachsuch Tax Return (including any amendment thereto) is true, correct, and complete in all respects,(iii) all Taxes due with respect to, or shown to be due on, such Tax Returns (or in respect ofsubsequent assessments with regard thereto), have been timely paid, or an adequate reserve has beenestablished therefor on the Interim Balance Sheet (as defined below), and (iv) there are noextensions of time to file any Tax Returns that are pending;               (c) As used in this Agreement, the term “Tax” or “Taxes” shall mean all federal, state, localor foreign taxes, charges, fees, imposts, levies or other assessments, including, withoutlimitation, all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer,franchise, profits, inventory, capital stock, license, withholding, payroll, employment, socialsecurity, unemployment, excise, severance, stamp, occupation, property and estimated taxes, customsduties, fees, assessments and charges of any kind whatsoever, and all interest, penalties, fines oradditions to tax imposed by any taxing authority in respect thereof. The term “Tax Return” shallmean all returns, declarations, reports, estimates, information returns and statements required tobe filed in respect of any Taxes including any schedule or attachment thereto, and including anyamendment thereof. The term “Code” shall mean the Internal Revenue Code of 1986, as amended.          7.11 Employee Benefit Matters**.**               (a) Seller maintains or contributes to one or more “pension plans” (as defined under Section3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (the “PensionPlans”), “welfare plans” (as defined under Section 3(1) of
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ERISA) (the “Welfare Plans”) and/or certain other employee benefit plans, policies orarrangements, including, without limitation, those relating to bonus or other incentivecompensation, stock option or similar plan, vacation pay, sick leave, deferred compensation,severance pay, salary continuation, dependent care plan, cafeteria plan, employee assistanceprogram, scholarship program or awards and workers’ compensation (the “Benefit Plans”). ThePension Plans, Welfare Plans and Benefit Plans are collectively referred to as the “Plan” or“Plans.”               (b) With respect to each Plan maintained by Seller, Seller has maintained and operated suchPlan in compliance with the Plan documents and all laws relating to such Plan (including, withoutlimitation, the Code, as defined in section 7.14 above, ERISA, the Health Insurance Portability andAccountability Act of 1996, the Americans with Disabilities Act, the Family and Medical Leave Actand the Uniformed Services Employment and Reemployment Rights Act of 1994. A person who is coveredby each Plan and may be employed by Purchaser will incur no loss or adverse tax consequence as aresult of Seller’s failure to comply with the Plan documents, legal requirements or the payment ofpremiums or other costs during such person’s employment by the Seller. There is no action, (otherthan claims for benefits in the ordinary course) that is pending, or threatened in writing, withrespect to any Plan that may impact a person who may be employed by Seller.               (c) Except as set forth in Schedule 7.11, Seller has never maintained a Pension Plan which isa defined benefit plan (as defined under section 3(35) of ERISA); has not participated in amultiple employer welfare arrangement as defined under ERISA; has not established or maintained anyarrangement which could be deemed to qualify as a funded welfare plan; and has never participatedin a multiemployer plan within the meaning of ERISA section 3(37) which could result in liabilityof any kind to Purchaser.               (d) Seller does not have any Plan subject to Code Section 409A applicable to any personinvolved in the CapMed Business and who may be employed by Purchaser that fails to meet therequirements of paragraphs (2), (3) or (4) of Code section 409A(a) or that was not operated inaccordance with such requirements, and the transactions contemplated by this Agreement will notcause the provisions under any such Plan to violate the provisions of Code section 409A, ordirectly or in combination with other events, result in the payment, acceleration or enhancement ofany benefit. Seller, with respect to the CapMed Business, is not a party to any agreement,contract, arrangement or Plan that has resulted or could result, separately or in the aggregate, inthe payment of any “excess parachute payment” within the meaning of Code section 280G (or anycorresponding provision of state, local or foreign law) to any person who may be employed byPurchaser.          7.12 Intellectual Property.               (a) For purposes of this Agreement, “Intellectual Property” shall mean all of the rights,whether owned, held for use under license, or otherwise used, whether registered or unregistered,arising from or in respect of the following: (i) patents; (ii) trademarks, service marks, tradedress, trade names, brand names, Internet domain names and goodwill associated therewith; (iii)copyrights; (iv) trade secrets; (v) all inventions, technology, formulas, know-how, confidentialinformation, computer software programs and applications, tangible and intangible
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proprietary information or materials; (vi) all applications filed, applications to be filed,and registrations relating to any of the foregoing clauses (i)-(v) above; and (vii) all rights toenforce any of the foregoing.               (b) All of the Intellectual Property material to the operation of the CapMed Business ascurrently conducted or as currently planned to be conducted that is owned by Seller, licensed toSeller by a third party, and/or licensed by Seller to any third party is separately set forth onSchedule 7.12(b), other than off-the-shelf consumer software which is licensed to Purchaser by anenterprise license agreement between Purchaser and the licensor(s) of such software.               (c) Seller owns, is properly licensed under, or otherwise possesses the valid and enforceableright to use all Intellectual Property that is material to the operation of the CapMed Business ascurrently conducted or as currently planned to be conducted. The transactions contemplated by thisAgreement would not result in the imposition of any Lien on any Intellectual Property of Sellerused in the CapMed Business as currently conducted or as currently planned to be conducted. Thereare no Claims challenging or threatening to challenge Seller’s right, title, and interest withrespect to its continued use and its right to preclude others from using any Intellectual Propertyused in the CapMed Business as currently conducted or as currently planned to be conducted.               (d) (i) Seller is not, nor will it be as a result of the execution and delivery of thisAgreement or the performance of its obligations hereunder, in violation of any licenses,sublicenses or other agreements used in the CapMed Business as currently conducted or as currentlyplanned to be conducted to which Seller is a party and pursuant to which Seller is authorized touse any “Third-Party Intellectual Property Rights.” For purposes of this Agreement, “Third-PartyIntellectual Property Rights” means any and all rights in Intellectual Property which are notwholly owned by Seller;                    (ii) To Seller’s knowledge, no third party is infringing upon, misappropriating, or otherwiseviolating any of Seller’s Intellectual Property used in the CapMed Business as currently conductedor as currently planned to be conducted in any material respect, nor has any third party infringedupon, misappropriated, or otherwise violated any of Seller’s Intellectual Property used in theCapMed Business as currently conducted or as currently planned to be conducted in any materialrespect in the past;                    (iii) Seller, in its operation of the CapMed Business, has not infringed upon,misappropriated, or otherwise violated any Third-Party Intellectual Property Rights, and the use ofits products by customers have not involved any such infringement, misappropriation, or otherviolation of any Third-Party Intellectual Property Rights, and to Seller’s knowledge there existsno reasonable basis for any claim of such infringement, misappropriation, or other violation of anyThird-Party Intellectual Property Rights;                    (iv) Seller has not received from any third party any notice or Claim that Seller, in itsoperation of the CapMed Business, has infringed upon, misappropriated, or otherwise violated anyThird-Party Intellectual Property Rights; and
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                    (v) No Intellectual Property right of Seller used in the CapMed Business as currentlyconducted or as currently planned to be conducted is or has been judicially determined to beinvalid or unenforceable and there are no equitable defenses to enforcement based on any act oromission of Seller. No judicial, regulatory, or administrative proceeding is currently pending or,to Seller’s Knowledge, threatened which challenges the validity or enforceability of anyIntellectual Property right of Seller used in the CapMed Business as currently conducted or ascurrently planned to be conducted. To the knowledge of Seller, Seller has the right to bring anaction against any person that is infringing on any Intellectual Property rights of Seller used inthe CapMed Business as currently conducted or as currently planned to be conducted.               (e) Except as specifically set forth on Schedule 7.12(e), Seller owns all right, title andinterest in and to the Intellectual Property identified on Schedule 7.12(b), free and clear of anyLien or license.               (f) Seller possesses all rights and licenses required for Seller’s use of all Software used bySeller in the CapMed Business. Except for such Software licensed from third parties pursuant to alicense included in the Assumed Contracts, all work performed to create such Software was either(i) performed by a person who was employed by the Seller at the time the work was performed or whovalidly and irrevocably assigned such software to the Seller pursuant to a written agreementincluded in the Assumed Contracts or (ii) performed by a third party pursuant to a writtenagreement included in the Assumed Contracts expressly providing that the product of such work isowned by the Seller or was validly and irrevocably assigned to Seller.               (g) All software which has been or is currently used by Seller in its operation of the CapMedBusiness, incorporated into CapMed Products, or distributed by Seller in connection with the CapMedBusiness, which is free, open source, public source, shareware, freeware, or any modificationthereof, including software subject to any general or public license (“Open Source Software”), islisted on Schedule 7.12(g), including (i) its name and version or release number, (ii) the date onwhich such Open Source Software was downloaded, licensed or otherwise obtained by Seller, (iii) thewebsite address from which such Open Source Software was obtained, (iv) the name, date and versionor release number of the general or public license to which such Open Source Software is subjectand the website address at which the text of such general or public license can be obtained, (v) adescription of how such Open Source Software is and has been used or distributed by Seller inconnection with the CapMed Business, and (vi) a description of how such Open Source Software hasbeen modified by the Seller. Seller has complied with and currently is in compliance with theterms of all licenses applicable to such Open Source Software, and Seller has not used, modified,incorporated or distributed such Open Source Software in any way which could require Seller to makeavailable any of Seller’s other software or Intellectual Property used in the CapMed Business ascurrently conducted or as currently planned to be conducted to third parties or which could makeany general or public license applicable to any of Seller’s Intellectual Property used in theCapMed Business as currently conducted or as currently planned to be conducted.          7.13 Compliance with Law.
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               (a) The operation of the CapMed Business and Seller’s use and ownership of the PurchasedAssets is in compliance with all applicable federal, state, local and international laws orordinances and any other rule or regulation of any international, federal, state or local agency orbody, including all energy, safety, environmental, zoning, health, export, import, trade practice,antidiscrimination, antitrust, wage, hour and price control laws, orders, rules, regulations orordinances, and including all confidentiality, privacy and security laws, orders, rules,regulations or ordinances relating to the use or disclosure of personally identifiable information.No notice from any governmental body or other person has been served upon Seller with respect tothe CapMed Business or upon any of the Purchased Assets claiming any violation or alleged violationof any law, ordinance, code, rule or regulation or requiring, or calling attention to the need for,any work, repairs, construction, alterations or installation on or in connection with the PurchasedAssets or the CapMed Business with which Seller has not complied. Seller has no liability(whether accrued, absolute, contingent, direct or indirect) for past or continuing violations ofany law, ordinance, code, rule or regulation with respect to the CapMed Business. All reports andreturns required to be filed by Seller with respect to the CapMed Business with any governmentalauthority have been filed and were accurate and complete when filed.               (b) With respect to the CapMed Business, no payments of cash or other consideration have beenmade to any person, entity or government by Seller or by any agent, employee, officer, director,shareholder or other person or entity on behalf of Seller which were unlawful under the laws of theUnited States or any state or other governmental authority.               (c) To Seller’s Knowledge, there has not been any unauthorized use, disclosure or accessing ofinformation contained on any database used in the operation of the CapMed Business, by any employeeor agent of the Seller, or by any third party.          7.14 Customers and Suppliers. No customer of the CapMed Business has any right to setoff any outstanding claims or amounts against any current or future receivables or fees forproducts or services. No customer or supplier of the CapMed Business is, or has been within thetwelve-month period prior to the date of this Agreement, involved in a material dispute withSeller, nor has any customer or supplier provided notice to Seller within such twelve month periodof its intent to cease to do business with Seller or materially reduce the amount of business itdoes with Seller.          7.15 Warranties. Schedule 7.15 sets forth a description of all product warranties andother warranties provided by Seller related to the CapMed Business other than warranties made inthe Assumed Contracts. The reserve for warranty claims reflected on the unaudited and combinedbalance sheet of the CapMed Business as of October 31, 2008 (the “Interim Balance Sheet”) isadequate to cover the anticipated warranty obligations of the CapMed Business in the normal andordinary course of the CapMed Business. Since December 31, 2007, no single warranty claim has beenmade that exceeded $25,000. There are no material warranty claims pending or, to Seller’sknowledge, threatened with respect to the CapMed Business.
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          7.16 Brokerage and Finders Fees. The Seller has not or will not have incurred anybusiness brokerage fee, finders’ fee, or similar obligation in connection with the transactionscontemplated hereby, other than such fees required to be paid by Seller to Excel Partners.          7.17 Internal Control Over Financial Reporting. Seller has made available toPurchaser copies of all documents reflecting Seller’s internal controls over financial reportingdirectly connected to any aspect of the CapMed Business. To Seller’s knowledge there is no fraud,whether or not material, that involves management or other employees who have a significant role inSeller’s internal controls over financial reporting related to any aspect of the CapMed Business.          7.18 Accounts Receivable. Except as set forth on Schedule 7.18, as of the ClosingDate there will be no Accounts Receivable. The Accounts Receivable existing as of the Closing Daterepresent valid claims for bona fide, arms length sales of goods and services actually made bySeller in the ordinary course of the CapMed Business and none of such accounts or notes receivableare subject to any set off or counterclaim or is in dispute. All such accounts and notesreceivable are collectible within 180 days of the Closing Date in the ordinary course of Seller’soperation of the CapMed Business using normal collection practices at the aggregate recordedamounts thereof, net of the allowance for doubtful accounts set forth on the Interim Balance Sheet.          7.19 Consents. Except as set forth on Schedule 7.19, the execution, delivery, andperformance by Seller of this Agreement and any additional agreements to which it is a party, andthe consummation of the transactions contemplated hereby, do not require any consent, waiver,authorization or approval of, or filing with, any governmental entity or any other person.          7.20 Information Technology Security. Seller has taken all commercially reasonableprecautions consistent with best practices in Seller’s industry against, viruses, worms, spyware,attacks, hackers, intruders, or other unauthorized access or use.          7.21 Disclosure. No warranty or representation by Seller contained, or deemed to bemade by Seller, in this Agreement or in any writing to be furnished pursuant hereto or previouslyfurnished to Purchaser contains or will contain any untrue statement of material fact or omits orwill omit to state any fact required to make the statements therein contained not misleading. Allstatements and information contained in any certificate, instrument, disclosure schedule ordocuments delivered by or on behalf of Seller to Purchaser or its representatives pursuant heretoshall be deemed representations and warranties made by Seller.     8. Representations and Warranties of Purchaser. Purchaser represents and warrants toSeller as of this date and as of the Closing Date that:          8.01 Corporate Organization. Purchaser is a corporation duly organized and validlyexisting under the laws of the State of Michigan. Purchaser has filed all reports required to befiled with the Secretary of State of the State of Michigan. Purchaser has all corporate power andauthority to own, operate and lease its respective properties and carry on its respectivebusinesses as now conducted. Purchaser is duly licensed and qualified to do business in and is in
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good standing under the laws of each state where the failure to do so would adversely affectthe business of Purchaser.          8.02 Authorization of Agreement; No Conflict. Purchaser has all necessary corporatepower and authority to execute and deliver this Agreement and, subject to section 13.05, toconsummate the transactions provided for herein. The execution and delivery of this Agreement byPurchaser and the performance by it of the obligations to be performed hereunder have been dulyauthorized by all necessary and appropriate action by the Board of Directors of Purchaser. Theexecution and delivery of this Agreement and the other agreements to be executed and deliveredpursuant to this Agreement and the consummation of the transactions contemplated hereby and therebydo not and will not, with or without the giving of notice or the passage of time, conflict with,result in or constitute a breach, default right to accelerate or loss of rights under, or result inthe creation of any Lien pursuant to, the terms or conditions of Purchaser’s Certificate ofIncorporation or By-Laws, any law, rule, regulation, statute, order, judgment or decree or anycontract, agreement, lease, license or instrument to which Purchaser is a party or by whichPurchaser or its business or assets are bound or affected. This Agreement is, and each otheragreement and document to be executed by Purchaser pursuant hereto will be when so executed, avalid and binding obligation of Purchaser enforceable in accordance with its terms except thatenforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similarlaws affecting creditors’ rights generally and by general equitable principles.          8.03 Disclosure. No warranty or representation by Purchaser contained, or deemed tobe made by Purchaser, in this Agreement or in any writing to be furnished pursuant hereto orpreviously furnished to Seller contains or will contain any untrue statement of material fact oromits or will omit to state any fact required to make the statements therein contained notmisleading. All statements and information contained in any certificate, instrument, disclosureschedule or documents delivered by or on behalf of Purchaser to Seller or its representativespursuant hereto shall be deemed representations and warranties made by Purchaser.     9. Post-Closing Covenants and Agreements of Purchaser. Purchaser hereby covenants andagrees that after the Closing Date:          9.01 Cooperation in Obtaining Consents. Purchaser shall use its reasonable bestefforts in response to any reasonable request of Seller to assist Seller in obtaining any consents,approvals, authorizations, exemptions and waivers of third parties necessary for the consummationof the transactions contemplated by this Agreement.          9.02 Employees.               (a) Offer to Hire. Purchaser shall offer to hire, effective at the Closing Date, onterms determined by Purchaser, the persons listed below who are employed by Seller in the CapMedBusiness as of the Closing Date (each a “Transferred Employee.”) The Transferred Employees shallbe Ms. Mary Ellen Zipper, Ms. Wendy Angst, Ms. Beth Hurter**,**and Mr. Dmitri Shalimov; provided, thatif the Purchaser offers employment to Stephen Keeler within seven (7) days after the Closing Date,then he shall also be a Transferred Employee. If Purchaser, within one hundred eighty (180) daysafter the Closing Date, hires to work in the CapMed Business any
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employee of Seller who was employed in the CapMed Business as of the Closing Date (all of whomare listed on Schedule 9.02(a)) who is not a Transferred Employee, then Purchaser shall reimburseSeller for any severance amount which Seller is obligated to pay to such employee as a result ofthe termination of such employee’s employment with Seller.               (b) Wages and Benefits through the Closing Date. Seller shall pay all wages of allSeller’s employees earned or accrued through and including the Closing Date, including any bonuses,severance payments and commissions earned (or earned subject only to the passage of time). Sellershall be responsible for and shall pay, in accordance with the terms and conditions of applicablePlans of Seller, all employee benefits of all of Seller’s employees earned or accrued through theClosing Date, including but not limited to accrued sick time, personal time and vacation.               (c) Seller’s Plans. Nothing in this Agreement shall obligate Purchaser to continuethe employment or benefits of any employee after the Closing Date, and Purchaser shall not assumeor be obligated to pay, perform or discharge any obligations under any Plan or other employeebenefit plan, contract or arrangement of Seller existing on or prior to the Closing Date (all ofwhich shall be deemed Excluded Liabilities).               (d) Purchaser’s Plans. Purchaser will make available to the Transferred Employees whoaccept employment with Purchaser such benefits as Purchaser determines in its sole discretion,subject to such eligibility requirements as are determined by Purchaser to be applicable to suchbenefits. Nothing contained in this Agreement shall limit the right of Purchaser or itsaffiliates, at any time and from time to time, to amend, modify or terminate, in whole or in part,any of the employee benefits plans of Purchaser, except to the extent otherwise specificallyprovided by law, and Purchaser hereby reserves such right.               (e) No Third Party Rights. No employee of Seller or Transferred Employee shall beentitled to any rights of enforcement or otherwise under this section 9.02.          9.03 Efforts to Perform. Purchaser shall use all commercially reasonable efforts tosatisfy the foregoing covenants and the conditions precedent set forth in section 12 in a timelyand expeditious manner.     10. **[Intentionally Omitted]**     11. Post-Closing Covenants of Both Parties. Each party hereby covenants and agreesthat after the Closing Date:          11.01 Confidentiality. Subject to the confidentiality restrictions set forth insection 11.02, each of the parties hereto hereby agrees to (and shall cause each of itsrepresentatives to) keep the information or knowledge obtained in any due diligence investigationor pursuant to the negotiation and execution of this Agreement or the effectuation of thetransactions contemplated hereby, confidential; provided, however, that the foregoing shall notapply to information or knowledge which (a) a party can demonstrate was already lawfully in itspossession prior to the disclosure thereof by the other party, (b) is generally known to the publicand did not become so known through any violation of law, or a confidentiality agreement
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or other contractual, legal or fiduciary obligation of confidentiality of the disclosing partyor any other party with respect to such information, (c) became known to the public through nofault of such party, (d) is later lawfully acquired by such party without confidentialityrestrictions from other sources not bound by applicable confidentiality restrictions, (e) isrequired to be disclosed by order of court or governmental or regulatory authority with subpoenapowers (provided that such party shall have provided the other party with prior notice of suchorder and an opportunity to object or seek a protective order and take any other available actionand; provided, further that any disclosure pursuant to such order shall be limited to the amount ofinformation necessary to comply with the order) or (f) which is disclosed without obligation ofconfidentiality in the course of any action between any of the parties hereto.          11.02 Announcement. Neither party to this Agreement will issue any press release ormake any other public disclosures concerning the transactions contemplated hereby or the terms ofthis Agreement without the prior written consent of the other party. Notwithstanding the above,nothing in this section 11.02 will preclude any party from making any disclosures required by lawor necessary and proper in conjunction with the filing of any tax return or other document requiredto be filed with any governmental entity; provided, that the party required to make the release orstatement shall allow the other party reasonable time to review and comment on such release orstatement in advance of such issuance; and provided, further, that either Purchaser or Seller ortheir respective affiliates may make such disclosures or announcements, filings and applicationsrequired by any applicable law or regulation (including federal and state securities laws andregulations) or otherwise consistent with the past practices of Metavante Technologies, Inc.(“Metavante Technologies”) and Securities and Exchange Commission guidance regarding transactiondisclosures.     12. Conditions Precedent to Seller’s Obligations. The obligations of Seller underthis Agreement are, at the option of Seller, subject to the fulfillment at Closing of each of thefollowing conditions:          12.01 Accuracy of Representations and Warranties. All representations and warrantiesof Purchaser contained in this Agreement shall be true and correct in all respects and Purchasershall have performed and satisfied all of its covenants, conditions and agreements and shall havedelivered to Seller all documents and agreements required by this Agreement to be performed,satisfied or delivered by Purchaser prior to Closing.          12.02 Officer’s Certificate. An authorized officer of Purchaser shall execute anddeliver at Closing a certificate that all conditions in section 12.01 have been fulfilled.          12.03 Deliveries to Seller on or Prior to Closing. Purchaser shall have delivered orcause to be delivered to Seller the following at or prior to Closing:               (a) The Closing Payment, by wire transfer of immediately available funds to an account oraccounts designated by Seller.               (b) The Seller Noncompetition Agreement, duly executed by Purchaser.
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               (c) The Assignment and Assumption Agreement in the form of Exhibit B attached hereto (the“Assignment and Assumption Agreement”), duly executed by Purchaser.     13. Conditions Precedent to Purchaser’s Obligations. The obligations of Purchaserunder this Agreement are, at the option of Purchaser, subject to the fulfillment at Closing of eachof the following conditions:          13.01 Accuracy of Representations and Warranties. All representations and warrantiesof Seller contained in this Agreement that are qualified by materiality (considered collectivelyand individually) shall have been true and correct in all respects at and as of the date hereof andshall be true and correct at and as of the Closing Date as if made at and as of the Closing Date,and the representations and warranties that are not so qualified (considered collectively andindividually) shall have been true and correct in all material respects at and as of the datehereof and shall be true and correct in all material respects at and as of the Closing Date as ifmade at and as of the Closing Date, except to the extent such representations and warranties referspecifically to an earlier date, in which case such representations and warranties shall have beentrue and correct as of such earlier date. Seller shall have performed and satisfied all of theircovenants, conditions and agreements and shall have delivered to Purchaser all documents andagreements required by this Agreement to be performed, satisfied or delivered by Seller prior toClosing.          13.02 Officer’s Certificate. An authorized officer of Seller shall execute anddeliver at Closing a certification that all of the conditions in section 13.01 have been fulfilled.          13.03 Due Diligence. Purchaser shall have completed its due diligence review of thefinancial, commercial and legal condition of Seller, including post-Closing management continuity,which review shall have been satisfactory to Purchaser in its sole discretion.          13.04 Deliveries on or Prior to Closing. Seller shall have delivered or cause to bedelivered to Purchaser the following documents at or prior to Closing:               (a) A Warranty Bill of Sale duly executed by Seller, in the form attached hereto as Exhibit D(the “Warranty Bill of Sale”).               (b) With respect to each Purchased Asset, except Assumed Contracts, for which written consentfrom a third party to the transfer or assignment to Purchaser of such Purchased Assets is required,the written consent of such third party to such transfer or assignment.               (c) A Tax Lien Certificate issued by the Department of Revenue of the Commonwealth ofPennsylvania dated as of within fifteen (15) days of Closing evidencing that there are no Liens onany of the Purchased Assets that have arisen in connection with any failure (or alleged failure) topay any Taxes related to the CapMed Business.
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               (d) Certified copies of resolutions adopted by the Board of Directors of Seller authorizingthe execution of this Agreement and the sale of the Purchased Assets to Purchaser in accordancewith the terms hereof.               (e) The Assignment and Assumption Agreement, duly executed by Seller.               (f) The Seller Noncompetition Agreement, duly executed by Seller.               (g) Notice from Seller, executed by Seller, addressed to all parties under each AssumedContract designated by Purchaser, in the form prepared by Purchaser, advising of the sale of thePurchased Assets and the transfer of such Assumed Contracts.               (h) All necessary governmental approvals, permits and licenses required for the performance bySeller for the Closing of the transactions contemplated by this Agreement, and valid assignments ofthe Licenses and Permits.               (i) Such other documents as Purchaser reasonably deems necessary or appropriate to vest in itgood and marketable title to all or any part of the Purchased Assets, free and clear of all liens,encumbrances and other rights as provided in this Agreement.               (j) An indexed digital copy, in duplicate, in a form reasonably requested by Purchaser, of allcomputer code owned by Seller used or useful in the CapMed Business.               (k) Executed assignments or other documents reasonably requested by Purchaser to transfer toPurchaser any of Seller’s rights of registration and/or ownership of each uniform resource locatorused or held for use in the CapMed Business.               (l) A Patent Assignment duly executed by Seller, in the form attached hereto as Exhibit E (the“Patent Assignment”).               (m) A Trademark Assignment duly executed by Seller, in the form attached hereto as Exhibit F(the “Trademark Assignment”).          13.05 Approvals and Permits; No Violation of Law. Purchaser and Purchaser’saffiliates shall have received all government approvals or permits required by law or regulation tohave been issued or obtained in order for the transactions contemplated hereby to be lawfullyconsummated, and any required waiting periods shall have expired or shall have been terminated(together, the “Required Approvals”).          13.06 Operation in Ordinary Course. Seller shall have operated the CapMed Business inthe ordinary course since the date hereof and shall not have performed or suffered to occur any actor condition which would constitute a breach of section 7.04.     14. Indemnification by Purchaser.
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          14.01 Indemnification. Notwithstanding the Closing, and regardless of anyinvestigation made at any time by or on behalf of Seller or any information Seller may have,Purchaser hereby covenants and agrees to indemnify, defend and hold Seller harmless from andagainst any demand, claim, damage, liability, loss (which will include any diminution in value),cost or deficiency (including, but not limited to, interest, penalties, costs of preparation andinvestigation and the reasonable fees, disbursements and expenses of attorneys, accountants andother professional advisors) (collectively, “Losses”), imposed on or incurred by Seller, directlyor indirectly,arising out of, resulting from or relating to:               (a) any inaccuracy in or breach of any representation or warranty of Purchaser pursuant tothis Agreement, whether or not Seller relied thereon or had knowledge thereof, including schedules,certificates, and documents delivered pursuant hereto;               (b) any failure of Purchaser to duly perform or observe any term, provision, covenant oragreement to be performed or observed by Purchaser pursuant to this Agreement; or               (c) any failure by Purchaser to perform or pay as and when due the Assumed Liabilities.               The obligations of Purchaser to indemnify and hold Seller harmless as described herein shallsurvive Closing and the consummation of the transactions contemplated by this Agreement, asprovided in section 14.03.          14.02 Procedures.               (a) Seller shall give Purchaser prompt notice of any written claim, demand, assessment,action, suit or proceeding to which the indemnity set forth in this section 14 applies. If thedocument evidencing such claim or demand is a court pleading, Seller shall give such notice,including a copy of such pleading, within fifteen (15) days of receipt of such pleading, otherwise,Seller shall give such notice within thirty (30) days of the date it receives written notice ofsuch claim. Failure to give timely notice of a matter which may give rise to an indemnificationclaim shall not affect the rights of Seller to collect such Losses from Purchaser so long as suchfailure to so notify does not materially adversely affect Purchaser’s ability to defend such Lossesagainst a third party, and then only to the extent of such adverse affect.               (b) If Seller’s request for indemnification arises from the claim of a third party, Purchasermay elect to assume control of the defense of any such claim, and any litigation resulting fromsuch claim, by notice to Seller. Failure by Purchaser to so notify Seller of their election todefend a complaint by a third party within five (5) days after notice thereof shall be deemed anelection by Purchaser not to respond to such complaint and a waiver by Purchaser of any right torespond to such complaint, and within twenty (20) days after notice thereof shall be deemed anelection by Purchaser not to assume control of the defense of such claim or action and a waiver byPurchaser of any right to defend such claim or action. If Purchaser timely notifies Seller thatPurchaser elects to assume control of the defense of such claim or litigation resulting therefrom,Purchaser shall take all reasonable steps necessary in the defense or settlement of such claim orlitigation resulting therefrom and Purchaser shall hold
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Seller, to the extent provided in this section 14, harmless from and against all Lossesarising out of or resulting from any settlement approved by Purchaser or any judgment in connectionwith such claim or litigation. Notwithstanding Purchaser’s assumption of the defense of suchthird-party claim or demand, Seller shall have the right to participate in the defense of suchthird-party claim or demand at their own expense. Purchaser shall not, in the defense of suchclaim or litigation, consent to entry of any judgment against Seller or enter into any settlementinvolving Seller, which either (i) grants the plaintiff or claimant any form of relief other thanmonetary damages which will be satisfied by Purchaser, or (ii) fails to include a provision wherebythe plaintiff or claimant releases Seller from all liability with respect thereto, except with thewritten consent of Seller. Seller shall furnish Purchaser in reasonable detail all informationSeller may have with respect to any such third-party claim and shall make available to Purchaserand its representatives all records and other similar materials which are reasonably required inthe defense of such third-party claim and shall otherwise cooperate with and assist Purchaser inthe defense of such third-party claim.               (c) If Purchaser does not assume control of the defense of any such third-party claim orlitigation resulting therefrom, Seller may defend against such claim or litigation in such manneras it may reasonably deem appropriate, and Purchaser shall indemnify Seller from any Lossesindemnifiable under section 14.01 incurred in connection therewith.               (d) Notwithstanding anything to the contrary in the foregoing, if (y) defendants in any actioninclude Seller and Purchaser, and if Seller shall have been advised by counsel that there may bematerial legal defenses available to Seller, or (z) if a conflict of interest exists between Sellerand Purchaser with respect to such claim or the defense thereof, then in either case, Seller shallhave the right to employ their own counsel in such action, and in such case (or in the event thatthe Purchaser does not timely assume the defense of such matter as provided above), the reasonablefees and expenses of Seller’s counsel shall be borne by the Purchaser and shall be paid by thePurchaser from time to time within twenty (20) days of receipt of appropriate invoices therefor.          14.03 Survival of Indemnification. Except in the case of fraud, no demand or claimfor indemnification pursuant to section 14.01(a) shall be made after March 31, 2010.          14.04 Indemnification Threshold. No indemnification shall be payable by Purchaserpursuant to section 14.01(a):               (a) unless the aggregate Losses incurred by Seller exceeds FortyThousand and 00/100 dollars($40,000) (the “Seller Threshold”), provided, that if such aggregate Losses exceed the SellerThreshold, indemnification for all Losses incurred shall be fully payable from the first dollar ofLosses without any setoff or deductible; or               (b) in excess of one-half of the Closing Payment.          14.05 Remedies Cumulative. The remedies provided by this section 14 shall becumulative and shall not preclude the assertion by Seller of any other rights or the seeking of anyother remedies against Purchaser.
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          14.06 Materiality. For the purposes of calculating “Losses” under this section 14 forany breach of any representation, warranty or covenant, any qualification contained in suchrepresentation, warranty or covenant using words “material,” “materially” or “material adverseeffect” shall be disregarded and deemed not to include such words.     15. Indemnification by Seller.          15.01 Indemnification. Notwithstanding the Closing, and regardless of anyinvestigation made at any time by or on behalf of Purchaser or any information or knowledgePurchaser may have, Seller and its successors hereby agree to indemnify, defend and hold Purchaser,and each of Purchaser’s subsidiaries, assignees, shareholders, affiliates, officers, directors,employees, agents, successors and assigns (Purchaser and such persons, collectively, “Purchaser’sIndemnified Persons”) harmless from and against any Losses imposed on or incurred by Purchaser’sIndemnified Persons, directly or indirectly, arising out of, resulting from or relating to:               (a) any misrepresentation or breach of any representation or warranty of Seller pursuant tothis Agreement in any respect, whether or not Purchaser’s Indemnified Persons relied thereon or hadknowledge thereof, including schedules, certificates, and documents delivered pursuant hereto;               (b) any failure of Seller to duly perform or observe any term, provision, covenant oragreement to be performed or observed by Seller pursuant to this Agreement, any documentscontemplated by this Agreement, or any agreement delivered pursuant to this Agreement; or               (c) any Excluded Liability.               The obligations of Seller and its successors to indemnify, defend, and hold Purchaser’sIndemnified Persons harmless as described herein shall survive Closing and the consummation of thetransactions contemplated by this Agreement, as provided in section 15.03.          15.02 Procedures.               (a) Purchaser’s Indemnified Persons shall give Seller prompt notice of any written claim,demand, assessment, action, suit or proceeding to which the indemnity set forth in this section 15applies. If the document evidencing such claim or demand is a court pleading, Purchaser shall givesuch notice, including a copy of such pleading, within fifteen (15) days of receipt of suchpleading, otherwise, Purchaser shall give such notice within thirty (30) days of the date itreceives written notice of such claim. Failure to give timely notice of a matter which may giverise to an indemnification claim shall not affect the rights of Purchaser’s Indemnified Persons tocollect such Losses from Seller so long as such failure to so notify does not materially adverselyaffect Seller’s ability to defend such Losses against a third party, and then only to the extent ofsuch adverse affect.               (b) If Purchaser’s Indemnified Persons request for indemnification arises from the claim of athird party, Seller may elect to assume control of the defense of any
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such claim, and any litigation resulting from such claim, by notice to Purchaser. Failure bySeller to so notify Purchaser’s Indemnified Persons of their election to defend a complaint by athird party within five (5) days after notice thereof shall be deemed an election by Seller not torespond to such complaint and a waiver by Seller of any right to respond to such complaint, andwithin twenty (20) days after notice thereof shall be deemed an election by Seller not to assumecontrol of the defense of such claim or action and a waiver by Seller of any right to defend suchclaim or action. If Seller timely notifies Purchaser that Seller elects to assume control of thedefense of such claim or litigation resulting therefrom, Seller shall take all reasonable stepsnecessary in the defense or settlement of such claim or litigation resulting therefrom and Sellershall hold Purchaser’s Indemnified Persons, to the extent provided in this section 15, harmlessfrom and against all Losses arising out of or resulting from any settlement approved by Seller orany judgment in connection with such claim or litigation. Notwithstanding Seller’s assumption ofthe defense of such third-party claim or demand, Purchaser’s Indemnified Persons shall have theright to participate in the defense of such third-party claim or demand at their own expense.Seller shall not, in the defense of such claim or litigation, consent to entry of any judgmentagainst any of Purchaser’s Indemnified Persons or enter into any settlement, involving any ofPurchaser’s Indemnified Persons, which either (a) grants the plaintiff or claimant any form ofrelief other than monetary damages which will be satisfied by Seller, or (b) fails to include aprovision whereby the plaintiff or claimant releases Purchaser’s Indemnified Persons from allliability with respect thereto, except with the written consent of Purchaser’s Indemnified Persons.Purchaser’s Indemnified Persons shall furnish Seller in reasonable detail all informationPurchaser’s Indemnified Persons may have with respect to any such third-party claim and shall makeavailable to Seller and its representatives all records and other similar materials which arereasonably required in the defense of such third-party claim and shall otherwise cooperate with andassist Seller in the defense of such third-party claim.               (c) If Seller does not assume control of the defense of any such third-party claim orlitigation resulting therefrom, Purchaser’s Indemnified Persons may defend against such claim orlitigation in such manner as they may reasonably deem appropriate, and Seller shall indemnifyPurchaser’s Indemnified Persons from any Losses indemnifiable under section 15.01 incurred inconnection therewith.               (d) Notwithstanding anything to the contrary in the foregoing, if (y) defendants in any actioninclude any of Purchaser’s Indemnified Persons and Seller, and if any of Purchaser’s IndemnifiedPersons shall have been advised by counsel that there may be material legal defenses available tosuch Purchaser’s Indemnified Person, or (z) if a conflict of interest exists between anyPurchaser’s Indemnified Person and Seller with respect to such claim or the defense thereof, thenin either case, such Purchaser’s Indemnified Persons shall have the right to employ their owncounsel in such action, and in such case (or in the event that Seller does not timely assume thedefense of such matter as provided above), the reasonable fees and expenses of Purchaser’sIndemnified Person’s counsel shall be borne by Seller and shall be paid by Seller from time to timewithin twenty (20) days of receipt of appropriate invoices therefor.          15.03 Survival of Indemnification. Except in the case of fraud, no demand or claimfor indemnification pursuant to section 15.01(a) shall be made after March 31, 2010, except asfollows: (a) claims for indemnification for representations and warranties contained in
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sections 7.01, 7.02 and 7.06 may be made at any time; (b) claims for indemnification forrepresentations and warranties contained in section 7.12 may be made up to the third anniversary ofthe Closing Date; and (c) claims for indemnification for representations and warranties containedin sections 7.10 may be brought at any time until the underlying tax obligation is barred by theapplicable period of limitation under federal and state laws relating thereto (as such may beextended by waiver).          15.04 Indemnification Threshold. No indemnification shall be payable by Sellerpursuant to section 15.01(a):               (a) unless the aggregate Losses incurred by all of Purchaser’s Indemnified Persons exceedForty Thousand and 00/100 Dollars ($40,000) (the “Purchaser Threshold”), provided, that if suchaggregate Losses exceed the Purchaser Threshold, indemnification for all Losses incurred shall befully payable from the first dollar of Losses without any setoff or deductible; and provided,further, that Losses arising out of a breach of any of sections 7.01, 7.02, 7.10, or 7.16 shall notbe subject to the Purchaser Threshold; or               (b) in excess of one-half of the Closing Payment.          15.05 Remedies Cumulative. The remedies provided by this section 15 shall becumulative and shall not preclude the assertion by Purchaser’s Indemnified Persons of any otherrights or the seeking of any other remedies against Seller.          15.06 Materiality. For the purposes of calculating “Losses” under this section 15 forany breach of any representation, warranty or covenant, any qualification contained in suchrepresentation, warranty or covenant using words “material,” “materially” or “material adverseeffect” shall be disregarded and deemed not to include such words.          15.07 Set-Off. Purchaser shall be entitled to recover any Losses actually incurred byany Purchaser Indemnified Persons, and for which any Purchaser Indemnified Person is entitled to beindemnified under this section 15 and for which any notice or procedures required under section15.02(a) has been given or performed, by means of set off of any such Losses against any paymentsof any Earn Out payable pursuant to section 4.01(b) above.     16. Termination and Waiver.          16.01 Termination. This Agreement may be terminated at any time prior to the date ofClosing:               (a) by mutual written consent of Seller and Purchaser;               (b) by Purchaser (i) if there has been a violation or breach by Seller of any covenant,agreement, representation or warranty contained in this Agreement which has rendered thesatisfaction of any condition to the obligations of Purchaser impossible and such violation orbreach has not been waived by Purchaser, or (ii) if there has been a failure of any of theconditions to Purchaser’s obligations set forth in section 13 hereof (unless such failure results
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primarily from a material breach by Purchaser of any covenant, agreement, representation orwarranty contained in this Agreement);               (c) by Seller (i) if there has been a violation or breach by Purchaser of any covenant,agreement, representation or warranty contained in this Agreement which has rendered thesatisfaction of any condition to the obligations of Seller impossible and such violation or breachhas not been waived by Seller, or (ii) if there has been a failure of any of the conditions toSeller’s obligations set forth in section 12 hereof (unless such failure results primarily from abreach by Seller of any covenant, agreement, representation or warranty contained in thisAgreement);               (d) by Seller or by Purchaser if the Closing has not occurred on or before forty-five (45)days from the date of this Agreement unless extended by written agreement of the parties hereto;provided, that such right to terminate shall not be available to any party whose failure to fulfillany obligation under this Agreement has been the cause of or resulted in the failure of the Closingto occur by such date; or               (e) By either Seller or Purchaser if a governmental entity shall have issued an order or takenany action in any case having the effect of permanently restraining, enjoining or otherwiseprohibiting the transactions contemplated by this Agreement, which order or other action is finaland non-appealable.          16.02 Effect of Termination. In the event of a valid termination of this Agreement asprovided in section 16.01, this Agreement shall forthwith become void and there shall be noobligation on the part of Purchaser or Seller, or their respective officers, directors or owners oraffiliates; provided, however, that the provisions of sections 11.01, 11.02, this section 16.02 andsection 17 shall remain in full force and effect and shall survive any termination of thisAgreement pursuant to this section 16; and provided, further, that nothing herein shall relieve aparty from liability for a breach of this Agreement prior to such termination.          16.03 Remedies*.*Any party terminating this Agreement pursuant to section 16.01 shallhave the right to recover damages sustained by such party as a result of any breach by the otherparty of any representation, warranty, covenant or agreement contained in this Agreement or fraudor willful misrepresentation; provided, however, that the party seeking relief is not in breach ofany representation, warranty, covenant or agreement contained in this Agreement under circumstanceswhich would have permitted the other party to terminate the Agreement under section 16.01.          16.04 Extension; Waiver. At any time prior to the Closing, Purchaser or Seller may,to the extent legally allowed, (a) extend the time for the performance of any of the obligations ofthe other party hereto, (b) waive any inaccuracies in the representations and warranties made tosuch party contained herein or in any document delivered pursuant hereto, and (c) waive compliancewith any of the agreements, covenants or conditions for the benefit of such party contained herein.Any agreement on the part of a party hereto to any such extension or waiver shall be valid only ifset forth in an instrument in writing signed on behalf of such party. At any time on or after theClosing, Purchaser, on the one hand, and Seller, on the other
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hand, may, to the extent legallyallowed, (i) extend the time for the performance of any of theobligations of the other party hereto, (ii) waive any inaccuracies in the representations andwarranties made to such party contained herein or in any document delivered pursuant hereto, and(iii) waive compliance with any of the agreements or conditions for the benefit of such partycontained herein.     17. Miscellaneous.          17.01 Amendment and Severability. This Agreement may be amended only by a writtenagreement of the parties hereto. If any provision, clause or part of this Agreement or theapplication thereof under certain circumstances, is held invalid, the remainder of this Agreement,or the applications of each provision, clause or part under other circumstances, shall not beaffected thereby.          17.02 Waiver. The failure of Seller or Purchaser to insist, in any one or moreinstances, upon performance of any of the terms or conditions of this Agreement, shall not beconstrued as a waiver or relinquishment of any rights granted hereunder or the future performanceof any such term, covenant or condition. Moreover, Purchaser’s decision to close this transactionnotwithstanding its constructive or actual knowledge of the breach by Seller of one or more of itsrepresentations, warranties or obligations hereunder shall not relieve Seller of itsindemnification obligations hereunder with respect to such breach; in such case, Purchaserspecifically is relying upon Seller’s indemnification obligation, as well as the underlyingrepresentation, warranty or contractual obligation. All rights and remedies granted in thisAgreement to Purchaser shall be cumulative and nonexclusive of all other rights and remedies thatPurchaser may have.          17.03 Notices. Any notice to be given hereunder shall be deemed given and sufficientif in writing, when personally delivered, or three days after being deposited in the U.S. mail,postage prepaid, by Registered or Certified mail, or when deposited with Federal Express, UnitedParcel Service, or Airborne Express for delivery by overnight mail, or when sent by facsimileactually received by the receiving facsimile machine, in the case of Seller, to:Bio-Imaging Technologies, Inc.