**EXHIBIT10(b)**

**ASSET PURCHASE AGREEMENT**

 

             THIS ASSET PURCHASE AGREEMENT (this"Agreement"), dated as of April 27, 2001, is made andentered into by and between HYPERFEED TECHNOLOGIES CORPORATION, a Delawarecorporation, or its nominee ("Purchaser"), and LASDORF CORPORATESERVICES, INC, a California corporation, ("Seller") and AndrewYasinsky (the “Principal”).

**WITNESSETH:**

             WHEREAS, concurrently with theexecution of this Agreement, Purchaser, Marketscreen.com, Inc. (an affiliate ofSeller) and certain stockholders of Marketscreen.com, Inc. have entered intothat certain Asset Purchase Agreement and Plan of Reorganization (the“Marketscreen APA”) pursuant to which Purchaser is acquiring all of the assets,business and operations of Marketscreen.com, Inc.

             WHEREAS, the parties heretoacknowledge that the purpose of this Agreement is to allow Purchaser to acquireownership of the assets necessary for Purchaser to own and operate theMarketscreen.com web site offerings.

             WHEREAS, Seller desires to sell allof Seller's assets, whether tangible or intangible, licenses and other propertyrights of any kind or nature necessary to own, develop, market support, enhanceor otherwise commercially develop the offerings of the markestreen.com web siteas currently offered on such site.  SeeExhibit A for a representative description of offerings of the marketscreen.comweb site (the "Business Segment"), and Purchaser desires to purchasesuch assets and assume certain of Seller's liabilities;

             WHEREAS, Seller is not selling andPurchaser is not purchasing any of Seller’s assets not specified herein;

             WHEREAS, the Principal is Seller'ssole stockholder.

             NOW, THEREFORE, in consideration ofthe mutual representations, warranties and covenants herein contained, and onthe terms and subject to the conditions herein set forth, the parties hereto,intending to be legally bound, hereby covenant and agree as follows:

 

**ARTICLE I**Purchase and Sale

             Section 1.1       Sale and Purchase of Assets.  Subject to and upon the terms and conditions contained herein, atthe Closing (as hereinafter defined) Seller shall sell, transfer, assign,convey and deliver to Purchaser, and Purchaser shall purchase, accept andacquire from Seller the assets of Seller relating to the Business Segment asspecified in Section 1.1 hereto which assets shall be free and clear of allliens, liabilities, security interests, claims, and encumbrances, except asotherwise expressly provided herein. All such assets to be acquired as provided herein are sometimescollectively referred to as the "Purchased Assets".  All assets of Seller of whatever natureother than the Purchased Assets are expressly excluded from this sale.  The Purchased Assets shall include thefollowing specified assets:

             (a)         Inventory.  None;

             (b)        Equipment.  None;

             (c)         Intangibles and IntellectualProperty.  All of the right, title andinterest Seller may possess in and to the items set forth on Schedule 3.12whether owned or licensed by Seller (collectively, the “Intangible Assets”);

             (d)        Records.  Copies of all books, documents and records of, or relating to anymaterial necessary to the operation of the Business Segment (including allfinancial and business records, customer lists and files, supplier records,insurance polices and any claims or credits thereunder relating to the BusinessSegment);

             (e)         Employee Records.  Copies of all personnel records and payrollrecords for the current and last two calendar years for all employees of Sellerrelating to the Business Segment, if any;

             (f)         Contract Rights.  All rights, privileges and interest ofSeller arising from any contract, agreement, purchase orders, deposits andother contractual rights to the extent set forth on Schedule 1.1(f) (the“Assigned Contracts”);

             (g)        Computer Software.  All computer applications and operatingprograms which are used in the operation of the Business  Segment (including third party packagedsoftware products and custom programs developed and written in house or bythird party consultants);

             (h)        Licenses andPermits.  All right, title and interestin any assignable licenses and permits relating to the Business Segment, ifany;

             (i)          Supplies.  None;

             (j)          Prepaid Expenses.  None;

             (k)         Securities.  None; and

             (l)          AccountsReceivable.  None.

             Section 1.2       Closing.  Theclosing of the transactions contemplated hereby (the "Closing") shalloccur on the date hereof (the "Closing Date") concurrently with theexecution of this Agreement in the offices of Wildman, Harrold,Allen & Dixon, 225 West Wacker Drive, Chicago, Illinois 60606.

             Section 1.3       Purchase Price. The aggregate consideration (the "Purchase Price"), to be paidto Seller for the Purchased Assets and the non-compete agreements described inSection 1.7 hereof shall payable as follows:

             (a)         $300,000will be payable at the Closing by Purchaser’s company check or, at Purchaser’soption, by wire transfer to a U.S. bank designated by Seller to Purchaser inwriting at least two (2) business days prior to the Closing.; and

             (b)        theAssumed Liabilities will be assumed and paid by Purchaser as provided inSection 1.4 hereof.

             Section 1.4       Assumed Liabilities.

             (a)         Commencingfrom and after the Closing Date, Purchaser shall assume and agree to pay,perform and discharge, promptly when due all duties, liabilities andobligations under the Assigned Contracts arising after the Closing (the"Assumed Liabilities").

             (b)        Purchaserdoes not assume or agree to pay, perform or discharge any liability orobligation of Seller, whether known or unknown, arising out of, incurred inconnection with, or related to: (i) liabilities or obligations of Seller arising prior the ClosingDate which are not specifically included within the definition of "AssumedLiabilities" hereunder; (ii) liabilities or obligations of Sellerincurred on or after the Closing Date; (iii) any product liability claimsarising from defects in products manufactured or sold by Seller; (iv) anypension or other benefit liability relating to Seller's employees; or(v) any warranty claims relating to products sold by Seller prior toClosing.

             Section 1.5       Allocation of Purchase Price.  Intentionally Deleted..

             Section 1.6       Intentionally Deleted.

             Section 1.7       Employee Relation Issues.  At the Closing, Seller and the Principal will each execute aNon-Compete Agreement in the form attached hereto as Exhibit B (the"Non-Compete Agreements").

             Section 1.8       Closing Deliveries. In order to consummate the transactions contemplated hereby, thefollowing documents shall be executed and/or delivered at the Closing, asappropriate:

             (a)         Sellershall deliver to Purchaser each of the following items executed by Sellerand/or the Principal as appropriate:

             (i)          aBill of Sale and Assignment in form and substance acceptable to Purchaser;

             (ii)         the Non-Compete Agreements;
             (iii)        all documentation reasonably required by Purchaser to effectthe transfer of any trademarks, service marks, domain names or otherintellectual property included in the Purchased Assets;

             (iv)       a Certificate of Good Standing for Seller from the CaliforniaSecretary of State dated within twenty (20) days of the Closing;

             (v)        acopy of Seller’s charter documents certified by the California Secretary ofState dated within twenty (20) days of the Closing;

             (vi)       and a duly executed Secretary’s Certificate as to Seller’sBylaws, incumbent officers and directors and resolutions adopted by Seller’sboard of directors and shareholders authorizing the execution of thisAgreement, confirmation of the sale provided for herein and performance bySeller of all its obligations hereunder;

             (vii)      an opinion of legal counsel for Seller in form an substanceacceptable to Purchaser;

             (viii)     search results of the public records of the California Secretaryof State and the Recorder's Office of San Mateo County, California confirmingthe absence of security interests, judgments, tax liens and bankruptcyproceedings which affect or could affect the Purchased Assets;

             (ix)        an officer’s certificate dated as of the Closing confirmingthat the representations and warranties of Seller are true and correct as ofthe Closing;

             (x)         copiesof all third party and governmental consents, approvals and filings required inconnection with the consummation of the transactions hereunder, if any;

             (xi)        copies of the fully-executed assignments form each of AndewYasinsky, Neil Waldo and James Wilson in the form attached hereto as Exhibit C;and

Fromtime-to-time after the Closing, at Purchaser’s request and without furtherconsideration from Buyer, Seller shall execute and deliver such otherinstruments of conveyance and transfer and take such other action as Buyerreasonably may require to convey, transfer to and vest in Buyer and to putBuyer in possession of Purchased Assets with customary warranties of title.

Atthe Closing, and at all times thereafter as may be necessary, Seller shallexecute and deliver to Purchaser such other instruments as shall be reasonablynecessary or appropriate (i) to vest in Purchaser good and indefeasible titleto the Purchased Assets and (ii) to vest in Purchaser all rights of Sellerunder the Assigned Contracts and to comply with the purposes and intent of thisAgreement.

             (b)        Purchasershall deliver to Seller each of the following items executed by Purchaser asappropriate:

             (i)          anAssumption of Liabilities and Assumed Contracts Agreement in a form acceptableto Seller and Purchaser;
             (ii)         the Non-Compete Agreements; and

             (iii)        a copy of the resolutions of Purchaser’s Board of Directorsapproving the Agreement and its related exhibits.

Atthe Closing, and at all times thereafter as may be necessary, Purchaser shallexecute and deliver to Seller such other instruments as shall be reasonablynecessary or appropriate to evidence the assumption by Purchaser of the AssumedLiabilities, including without limitation those arising under the AssignedContracts, and to comply with the purposes and intent of this Agreement.

**ARTICLE II**Purchaser's Representations and Warranties

             Purchaser represents and warrantsthat the following are true and correct as of this date and will be true andcorrect through the Closing Date as if made on that date:

             Section 2.1       Organization and Good Standing.  Purchaser is a corporation duly organized,validly existing and in good standing under the laws of the State of Delawareand validly qualified to transact business in the State of Illinois, with allrequisite power and authority to carry on the business and in good standing inwhich it is engaged, to own the properties it owns and to execute and deliverthis Agreement and to consummate the transactions contemplated hereby.

             Section 2.2       Authorization and Validity.  The execution, delivery and performance of this Agreement and theother agreements contemplated hereby by Purchaser, and the consummation of thetransactions contemplated hereby and thereby, have been duly authorized byPurchaser.  This Agreement and eachother agreement contemplated hereby have been or will be prior to Closing dulyexecuted and delivered by Purchaser and constitute or will constitute as of theClosing, legal, valid and binding obligations of Purchaser, enforceable againstPurchaser in accordance with their respective terms, except as may be limitedby applicable bankruptcy, insolvency or similar laws affecting creditors'rights generally or the availability of equitable remedies.

             Section 2.3       Violation. Neither the execution and performance of this Agreement or the otheragreements contemplated hereby, nor the consummation of the transactionscontemplated hereby or thereby, will (a) conflict with, or result in a breachof the terms, conditions and provisions of, or constitute a default under, theArticles of Incorporation or Bylaws of Purchaser or of any agreement, indentureor other instrument under which Purchaser is bound, or (b) violate or conflictwith any judgment, decree, order, statute, rule or regulation of any court orany public, governmental or regulatory agency or body having jurisdiction overPurchaser or the properties or assets of Purchaser.

             Section 2.4       Finder's Fee. Purchaser has not incurred any obligation for any finder's, broker's oragent's fee in connection with the transactions contemplated hereby for whichSeller or any Principal may be liable.

 

**ARTICLE III**Representations and Warranties of Seller

             Except as set forth on theDisclosure Schedules attached to this Agreement, Seller and the Principal, andeach of them, hereby jointly and severally represent and warrant that thefollowing are true and correct as of this date and will be true and correctthrough the Closing Date as if made on that date.  Whenever any representation or warranty is qualified “to Seller’sknowledge,” that phrase shall mean to the actual knowledge of the Principal.

             Section 3.1       Organization and Good Standing.  Seller is a corporation duly organized,validly existing and in good standing under the laws of California, with allrequisite power and authority to carry on the business in which it is engagedand to own the properties it owns. Seller is duly qualified to do business in California and every otherjurisdiction where Seller is required by law to be qualified to transactbusiness.  Except as set forth in Schedule3.1 hereto, Seller does not have any assets, employees or offices in anystate other than in San Mateo County, California.  Seller does not own, directly or indirectly, any of the capitalstock of any other corporation or any equity, profit sharing, participation, orother interest in any corporation, partnership, limited partnership, limitedliability partnership, limited liability company, joint venture or otherentity.

             Section 3.2       Capitalization.  The authorized, issued and outstanding capital stock of Seller,and the record and beneficial shareholders of all issued and outstandingcapital stock of Seller, is set forth in Schedule 3.2 hereto.  The Principal owns all such capital stock ofSeller, free and clear of all liens, liabilities, claims, encumbrances,equities, voting agreements, voting trust agreements, and proxies.  Each outstanding share of capital stock ofSeller has been legally and validly issued and is fully paid andnonassessable.  There exist no options,warrants, subscriptions or other rights to purchase, or securities convertibleinto or exchangeable for, any of the authorized or outstanding securities ofSeller.  No shares of capital stock ofSeller are owned by Seller in treasury or otherwise or have been issued ordisposed of in violation of the preemptive rights of any of Seller'sshareholders.

             Section 3.3       Corporate Records. Copies of Seller's Articles of Incorporation and all amendments thereto,and its Bylaws of Seller and all amendments thereto have been delivered toPurchaser and are full and complete copies thereof.

             Section 3.4       Authorization and Validity.  The execution, delivery and performance of this Agreement and theother agreements contemplated hereby by Seller and the Principal, and theconsummation of the transactions contemplated hereby and thereby, have beenunanimously approved and duly authorized by the Board of Directors of Sellerand shareholders of Seller.  This Agreementand each other agreement contemplated hereby have been or will be duly executedand delivered by Seller and the Principal, as the case may be, and constitute,or will constitute as of the Closing, legal, valid and binding obligations ofSeller and the Principal, enforceable against each of them in accordance withtheir respective terms, except as may be limited by applicable bankruptcy,insolvency or similar laws affecting creditors' rights generally or theavailability of equitable remedies.

             Section 3.5       Financial Statements. Intentionally Deleted.

             Section 3.6       Liabilities and Obligations.  To Seller’s knowledge, Schedule 3.6 provides a listing ofall liabilities and obligations of Seller, accrued, contingent or otherwise(known or unknown and asserted or unasserted), arising out of transactionseffected or events occurring on or prior to the date hereof and prior to theClosing and related to the Purchased Assets or the Business Segment. Except asset forth on Schedule 3.6, Seller is not liable, upon or with respect to, orobligated in any other way to provide funds in respect of or to guarantee orassume in any manner, any debt, obligation or dividend of any person,corporation, association, partnership, joint venture, trust or other entitythat in any way affects the Purchased Assets or the Business Segment.  Seller knows of no basis for the assertionof any other claims or liabilities of any nature or in any amount that in anyway affects the Purchased Assets or the Business Segment.

             Section 3.7       Employee Benefits. Seller does not sponsor, maintain,or otherwise is a party to, or is in default under, or has any accruedobligations under any pension, deferred compensation, bonus or other incentiveplan, severance plan, health, group insurance or other welfare plan, employeebenefit plan or other similar plan, agreement, policy or understanding.

             Section 3.8       Absence of Certain Changes.  Except as disclosed on Schedule 3.6, in relation only to thePurchased Assets or the Business Segment Seller has not (a) suffered anymaterial adverse change in its financial condition, assets, liabilities orbusiness; (b) contracted for or paid any capital expenditure in excess of$10,000 or contracted for or paid more than $50,000 for all capitalexpenditures to any person, entity, and/or any affiliates of any such person orentity, (c) incurred any indebtedness for borrowed money, issued or sold anydebt securities or, other than in the ordinary course of business consistentwith prior practices, discharged any liabilities or obligations, or agreed todo any of the foregoing; (d) mortgaged, pledged or subjected to any lien,lease, security interest or other charge or encumbrance any of Seller'sproperties or assets or agreed to do any of the foregoing; (e) paid any amounton any indebtedness for borrowed money prior to the due date, forgiven orcanceled any material debts or claims or released or waived any material rightsor claims or agreed to do any of the foregoing; (f) suffered any damage ordestruction to or loss of any assets (whether or not covered by insurance) thatcould or does materially and adversely affect its business; (g) acquired ordisposed of any assets or incurred any liabilities or obligations or agreed todo any of the foregoing, except in the ordinary course of business consistentwith prior practice; (h) written up or written down the carrying value of anyof its assets; (i) changed the costing system or depreciation methods ofaccounting for its assets or otherwise changed any method of accounting oradopted any new method of accounting or agreed to do any of the foregoing; (j)accelerated any item of income or gain into the period prior to the Closing, ordeferred any item of expense or loss into the period after Closing, and suchacceleration or deferral is not made in the ordinary course of Seller'sbusiness consistent with Seller's treatment of such items in prior periods; (k)lost or terminated employees, consultants, agents, representatives, customersor suppliers that could or does materially and adversely affect its business orassets; (l) increased or agreed to increase the compensation of any consultant,agent, representative or employee, except in the ordinary course of businessconsistent with prior practices; (m) formed or acquired or disposed of anyinterest in any corporation, partnership, joint venture or other entity; (n)redeemed, purchased or otherwise acquired, or sold, granted or otherwisedisposed of, directly or indirectly, any of its capital stock or securities orany rights to acquire such capital stock or securities, or agreed to changeterms and conditions of any such rights; or (o) entered into any employment,compensation, consulting or collective bargaining agreement with any person orgroup, or modified or amended the terms of any such existing agreement or agreedto do any of the foregoing.

             Section 3.9       Title; Leased Assets.

             (a)         Sellerowns the Purchased Assets free and clear of all liens, liabilities, claims, andencumbrances.  The Purchased Assets arethe only ones necessary for the conduct of the Business Segment other thanthose assets to be acquired by Purchaser from Marketscreen.com, Inc.concurrently with the Closing pursuant to a separate agreement.  Schedule 3.9 also contains a listingof which Purchased Assets are leased. Upon consummation of the transactions contemplated hereby, Purchasershall receive good, valid, and marketable title to the Purchased Assets, andwill be entitled to, subject to the receipt of all appropriate consents, use aslessee all leased assets which are material to the operation of the BusinessSegment.

             (b)        Except as set forth on Schedule 3.9,all tangible properties and assets material to the Business Segment, other thanthose assets to be acquired by Purchaser from Marketscreen.com, Inc.concurrently with the Closing pursuant to a separate agreement, are included inthe Purchased Assets.  Seller owns orleases or otherwise possesses a transferable right to use all Purchased Assetswhich are material to the operation of the Business Segment as conductedimmediately before the date of this Agreement.

             Section 3.10     Material Agreements. Except as set forth in Schedule 3.10 hereto, Seller has notentered into, nor are the Purchased Assets or the Business Segment bound by,whether or not in writing, any (i) partnership or joint venture agreement;(ii) deed of trust or other security agreement; (iii) guaranty orsuretyship, indemnification or contribution agreement or performance bond; (iv)employment, consulting or compensation agreement or arrangement, including theelection or retention in office of any director or officer; (v) labor orcollective bargaining agreement; (vi) debt instrument, loan agreement or otherobligation relating to indebtedness for borrowed money or money lent toanother; (vii) deed or other document evidencing an interest in or contract topurchase or sell real property; (viii) agreement with dealers or sales orcommission agents, public relations or advertising agencies, accountants orattorneys; (ix) lease of real or personal property, whether as lessor, lessee,sublessor or sublessee; (x) powers of attorney; (xi) agreement for theacquisition of services, supplies, equipment or other personal property enteredinto other than in the ordinary course of business consistent with priorpractices and involving more than $10,000; (xii) contract containingnoncompetition covenants; (xiii) agreement relating to any matter ortransaction in which an interest is held by a person or entity which is an"affiliate" of Seller or any Principal (as the term "affiliate"is defined in Rule 144(a)(i) of the Securities and Exchange Commissionpromulgated under the Securities Act of 1933), or any "associate" ofany such affiliate (as the term "associate" is defined in Regulation14A of the general rules and regulations under the Securities Exchange Act of1934); or (xiv) other agreement or commitment not made in the ordinary courseof business consistent with prior practices, that is material to the BusinessSegment or financial condition of Seller (all of the foregoing are hereinaftercollectively referred to as the "Material Agreements").  True, correct and complete copies of thewritten Material Agreements, and true, correct and complete writtendescriptions of the oral Material Agreements, have heretofore been delivered toPurchaser.  There are no existingdefaults, events of default or events, occurrences or acts that, with thegiving of notice or lapse of time or both, would constitute defaults, and nopenalties have been incurred nor are amendments pending, with respect to the MaterialAgreements, except as set forth in Schedule 3.10.  The Material Agreements are in full forceand effect and are valid and enforceable obligations of the parties thereto inaccordance with their terms, and no defenses, off-sets or counterclaims have beenasserted or may be made by any party thereto, nor has Seller waived any rightsthereunder, except as set forth in Schedule 3.10.  Seller is not a party to, and none of thePurchased Assets are subject to or otherwise affected by, any agreement or instrument,or any charter or other restriction, or any judgment, order, writ, injunction,decree, rule or regulation, that could or does materially and adversely affectthe Purchased Assets or Business Segment.

 

Section3.11     Insurance.  Intentionally Deleted.

             Section 3.12     Patents, Trademarks and Copyrights.

             (a)         Otherthan the intellectual property rights to be acquired by Purchaser fromMarketscreen.com, Inc. concurrently with the Closing pursuant to a separateagreement, Seller owns all patents, trademarks, copyrights, and otherintellectual property rights if any, necessary to conduct the Business Segment,or possesses adequate licenses or other rights, if any, therefor, withoutconflict with the rights of others.  Setforth in Schedule 3.12 hereto is a true and correct description of thefollowing ("Proprietary Rights"):

             (i)          Alltrademarks, trade names, service marks, domain names, product labels, tradedress, and other trade designations, including common-law rights, registrationsand applications therefor, and all patents, copyrights and applicationscurrently owned, in whole or in part, by Seller, and all licenses, royalties,assignments and other similar agreements relating to the foregoing to whichSeller is a party (including expiration dates if applicable) related to theBusiness Segment; and

             (ii)         All agreements relating to technology, know-how, processesor web site development and hosting (including but not limited to allagreements covering application software and/or operating system software) relatedto the Business Segment that Seller is licensed or authorized to use by others,or which it licenses or authorizes others to use.

             (b)        Exceptas set forth in Schedule 3.12, Seller has the sole and exclusive rightto use the Proprietary Rights identified in Schedule 3.12 withoutinfringing or violating the rights of any third parties.  Except as set forth in Schedule 3.12,no consent of third parties will be required for the use thereof by Purchaserupon consummation of the transactions contemplated by this Agreement.  No claim has been asserted by any person tothe ownership of or right to use any Proprietary Right or challenging orquestioning the validity or effectiveness of any such license or agreement, andneither Seller nor any Principal knows of any valid basis for any suchclaim.  Each of the Proprietary Rightsis valid and subsisting, has not been canceled, abandoned or otherwiseterminated and, if applicable, has been duly issued or filed.

             (c)         Tothe best of Seller's knowledge, no product, activity or operation of Sellerinfringes upon or involves, or has resulted in the infringement of, anyProprietary Right of any other person, corporation or other entity.  No proceedings have been instituted, are pendingor, to the best knowledge of Seller and the Principal, are threatened whichchallenge the rights of Seller with respect thereto.  Seller has not given and is not bound by any agreement ofindemnification for or regarding any Proprietary Right.

             Section 3.13     No Violation. Neither the execution and performance of this Agreement or theagreements contemplated hereby nor the consummation of the transactionscontemplated hereby or thereby will (a) result in a violation or breach of theArticles of Incorporation or Bylaws of Seller or any agreement or otherinstrument under which Seller is bound or to which any of the Purchased Assetsare subject, or result in the creation or imposition of any lien, charge orencumbrance upon any of the Purchased Assets except as described in Schedule3.13 or (b) violate any applicable law or regulation or any judgmentor order of any court or governmental agency.

             Section 3.14     Taxes.    Sellerhas filed or will file prior to applicable deadlines all income, excise,corporate, franchise, property, sales, payroll, withholding and other taxreturns and reports required to be filed by it as of the date hereof by theUnited States of America or any state or any political subdivision thereof andhas paid or established adequate reserves for all taxes (including penaltiesand interest) which have or may become due pursuant to such returns and anyassessments which have been received by it or otherwise.  All such tax returns or reports fairly andaccurately reflect the taxes of Seller for the periods covered thereby.  Seller is not delinquent in the payment ofany tax, assessment or governmental charge, there is no tax deficiency ordelinquency asserted against Seller and there is no unpaid assessment, proposalfor additional taxes, deficiency or delinquency in the payment of any of thetaxes of Seller that could be asserted by any taxing authority, nor of anyviolation of any federal, state, local or foreign tax law.  No Internal Revenue Service or other taxaudit of Seller is pending or, to Seller's actual knowledge, threatened.  No Internal Revenue Service or other taxaudit of Seller has occurred during the last five (5) years. Seller has notgranted any extension to any taxing authority of the limitation period duringwhich any tax liability may be asserted. Seller has not committed a violationof any federal, state, local or foreign tax laws.  All monies required to be withheld by Seller from employees orother payees, including amounts attributable to tips or gratuities received byemployees, or collected from customers or other payees for income taxes, socialsecurity and unemployment insurance taxes and sales, excise and use taxes,including but not limited to penalties and interest thereon, have beencollected or withheld and either paid to the respective governmental agenciesor set aside in accounts for such purpose. Seller has furnished to Purchasertrue and accurate copies the tax returns for the years 1998 through 2000.

             Section 3.15     Consents.  Exceptas set forth in Schedule 3.15 hereto, no authorization, consent,approval, permit or license of, or filing with, any governmental or public bodyor authority, any lender or lessor or any other person or entity is required(i) to authorize, or is required in connection with, the execution, deliveryand performance of this Agreement or the agreements contemplated hereby on thepart of Seller or the Principal or (ii) in connection with the transfer of anyPurchased Assets from Seller to Purchaser, including but not limited to theassignment of the Assigned Contracts.  Schedulel.1(f) contains a complete and accurate list and description of theAssigned Contracts.

             Section 3.16     Compliance with Laws and Agreements.

             (a)         Selleris not in violation of any term or provision of any charter, bylaw, mortgage,indenture, contract, agreement, instrument, judgment, decree, order, or toSeller’s knowledge, any law, statute, rule, regulation or judicial oradministrative decision applicable to, or which could materially affect,Seller, the Purchased Assets or the Business Segment.

             (b)        NeitherSeller nor the Principal has (i) made any payment to any person (an"Official") employed by or affiliated with any customer, supplier, orgovernmental entity or agency charged with reviewing, monitoring, or regulatingany activities of Seller or the Principal, (ii) given any personal property orreal property to any Official, (iii) sold any personal property or realproperty to any Official at less than fair market value, (iv) made a politicalcontribution to any governmental official in violation of applicable law, or(v) otherwise taken any action in violation of any statute, rule, or regulationprohibiting bribes, kickbacks, or other activities that seek to wrongfullyinfluence any Official.

 

             (c)         Exceptas set forth in Schedule 3.16(c) hereto, to Seller’s knowledge, neitherSeller nor the Principal has (i) committed any act, (ii) violated any law, or(iii) been charged with violating any law that has restricted or impaired, orcould restrict or impair, the ability of Seller or the Principal (or followingthe Closing, Purchaser) to conduct business.

             Section 3.17     Finder's Fee. Seller and the Principal have not incurred any obligation for anyfinder's, broker's or agent's fee in connection with the transactionscontemplated hereby for which Purchaser may be liable or for which a claimcould be asserted against the Purchased Assets.

             Section 3.18     Claims and Proceeding. Schedule 3.18 is a complete and accurate list and description ofall claims, actions, suits, proceedings and investigations currently pendingor, to the best knowledge of Seller, threatened against or affecting Seller,the Principal or the Business Segment or any of the properties, PurchasedAssets, at law or in equity, or before or by any court, municipal or othergovernmental department, commission, board, agency or instrumentality.  Except as set forth in Schedule 3.18,none of such claims, actions, suits, proceedings or investigations will resultin any liability or loss to Seller, the Purchased Assets or the BusinessSegment which (individually or in the aggregate) is material to Seller, thePurchased Assets, or the Business Segment and Seller has not been, and is notnow, subject to any order, judgment, decree, stipulation or consent of anycourt, governmental body or agency.  Noinquiry, action or proceeding has been asserted, instituted or, to the bestknowledge of Seller, threatened to restrain or prohibit the carrying out of thetransactions contemplated by this Agreement or to challenge the validity ofsuch transactions or any part thereof or seeking damages on accountthereof.  To the best knowledge ofSeller, there is no basis for any claim or action which would, or couldreasonably be expected to (individually or in the aggregate), have a materialadverse effect on the Business Segment or financial condition of Seller.  Except as set forth in Schedule 3.18,no claim, complaint, suit, action, proceeding or investigation is pending or,to Seller's actual knowledge, threatened against the Principal or to any otherperson or entity having an ownership interest in, or who was an officer,director, or agent of Seller, which may result in any restraint, prohibition orthe obtaining of damages or any other relief.

             Section 3.19     Employees and Consultants.  Set forth in Schedule 3.19 hereto is a complete andaccurate list of all employees and consultants of Seller related to theBusiness Segment.  Seller has notgranted or become obligated to grant any increases in the wages or salary of,or paid or become obligated to pay any bonus or made or become obligated tomake any similar payment to or grant any benefit to or on behalf of any of suchindividuals.   Seller has no direct orindirect, express or implied, obligation to pay severance or termination pay toany such individuals or to pay any amounts to any consultant in relation to theBusiness Segment other than the individuals set forth on Schedule 3.19.  Seller and the Principal have no actualknowledge of any facts which would indicate that any employee or consultant ofSeller listed on Schedule 3.19 will not accept employment or a consultingrelationship with Purchaser on a basis no less favorable than such employee orconsultant’s current relationship with Seller.

             Section 3.20     Other Employee Matters. To Seller's actual knowledge, Selleris in compliance with all federal and state laws respecting employment andemployment practices, terms and conditions of employment and wages and hoursand is not engaged in, nor has it committed, any unfair labor practice asdefined in the National Labor Relations Act of 1947, as amended. There is nounfair labor practice claim against Seller before the National Labor RelationsBoard.

             Section 3.21     Overtime. Back Wages. Vacation and Minimum Wages.  No present or former employee of Seller has,or will as of the Closing Date have, any claim against Seller (whether underfederal, state or local law, any employment agreement, or otherwise) on accountof or for (a) overtime pay, other than overtime pay for the then currentpayroll period, (b) wages or salary for any period other than the currentpayroll period, (c) vacation, time off or pay in lieu of vacation or time off,other than that earned in respect of the current fiscal year or accrued onSeller's books and records, or (d) any violation of any statute, ordinance orregulation relating to minimum wages or maximum hours of work.  All amounts required to be withheld bySeller from its employees have been properly withheld and will be timelydeposited and all contributions required to be paid by Seller in respect of itsemployees have been paid in accordance with the applicable provisions offederal, state and local laws regarding income tax withholding and socialsecurity, workers compensation, unemployment compensation or similar taxes orcontributions.

             Section 3.22     Discrimination and Occupational Safety and Health.  No person or party (including, but notlimited to, governmental agencies of any kind) has any claim, or basis for anyaction or proceeding, against Seller arising out of any statute, ordinance orregulation relating to discrimination in employment or employment practices oroccupational safety and health standards. Seller has not received any notice from any federal, state or localentity alleging a violation of occupational safety or health standards.

             Section 3.23     ADA.  Seller hasnot received notice from any individual, entity or federal, state, localgovernmental agency or official notifying it that Seller or any property orasset of Seller is in violation of, or in noncompliance with, the Americanswith Disabilities Act (the "ADA"). Seller has not received any notice of a claim or potential claim underthe Civil Rights Act of 1991 for any violation of the ADA.

             Section 3.24     Condition of Fixed Assets.  Intentionally Deleted.

             Section 3.25     Books of Account and Records.  The books of account of Seller have been kept accurately in theordinary course of its business, the transactions entered therein representbona fide transactions and the revenues, expenses, assets and liabilities ofSeller have been properly recorded in such books.  The Records are in good order, are complete, and have beenmaintained in accordance with sound business practices.

             Section 3.26     Corporate Name. Intentionally Deleted.

             Section 3.27     Investments in Competitors.  Except for the ownership of non-controlling interests insecurities of corporations the shares of which are listed on generallyrecognized stock exchanges, the Principal does not own directly or indirectlyany interest or has any investment in any corporation, business or other personwhich is a competitor of the Business Segment, or which otherwise directly doesbusiness with Seller in relation to the Business Segment.

             Section 3.28     Contracts and Transactions with Affiliates and Others.  Except as set forth on Schedule 3.28,no Principal, director or officer of Seller, nor any person who is a spouse ordescendant of such Principal, director or officer, has any direct or indirectrelationship with any customer or supplier of, or other contracting party with,Seller.  Except as set forth on Schedule 3.28and except for salaries and benefits paid in the ordinary course of Seller’sbusiness, Seller has not paid any sum, assumed any debt or distributed anyassets to the  Principal or any directoror officer of Seller, or any person who is a spouse or descendant of thePrincipal, director or officer

             Section 3.29     Real Property.  Schedule3.29 describes all real estate owned or leased by Seller or otherwiseoccupied by Seller in the Business Segment (the "Real Property").  Except as set forth on Schedule 3.29,Seller's use and operation of the Real Property and Purchaser's use of suchpremises in the same manner as used by Seller are, and at the Closing Date willbe, valid and permitted uses of such premises which in no way violate any Laws(as hereinafter defined) or any agreement, document or instrument respectingsuch premises and do not constitute non-conforming use.  All uses of the Real Property and all usesmade thereby by Seller have been, and as of the Closing Date will be, incompliance with all federal, state, county and local laws, rules, orders,regulations and ordinances, including without limitation, all applicableplanning and zoning laws, rules, regulations and ordinances (collectively,"Laws"), except for minor violations which do not and will not have amaterial adverse effect on the operation of the Business Segment.  Neither Seller, the Principal, nor anyone onits or their behalf, has received any notices of any violations of any Lawsregarding the Real Property.

             Section 3.30     Business Relations with Suppliers.  Except as set forth in Schedule 3.30hereto, neither Seller nor any Principal has received actual notice, that anysupplier of Seller will, cease or refuse to do business with Purchaser afterthe consummation of the transactions contemplated hereby.  Except as set forth in Schedule 3.30,neither Seller nor any Principal has received any actual notice of anydisruption (including delayed deliveries or allocations by suppliers or serviceproviders) in the availability of the materials, products, supplies or servicesused by Seller, nor is Seller aware of any facts which could lead Seller tobelieve that the Business Segment (whether before or after the Closing) will besubject to any such material disruption. Seller is not aware of any condition (financial or otherwise) affectingany of Seller's major suppliers that is likely to reduce each such supplier'sability to do business with Purchaser in a similar manner that each suchsupplier has done business with Seller during the period preceding thisAgreement.

             Section 3.31     Agents.  Sellerhas not designated or appointed any person or other entity to act for it or onits behalf pursuant to any power of attorney or any agency which is presentlyin effect.

             Section 3.32     Permits.  Setforth in Schedule 3.32 hereto is a list of all permits, licenses andapprovals from federal, state, county, local and foreign governmental andregulatory bodies (collectively, "Permits") held, utilized or appliedfor by Seller, including, without limitation, all state licenses required to beissued in those states in which Seller does business, and the Permits are validand in full force and effect.  Except asset forth in Schedule 3.32, no other or additional licenses, permits orapprovals are required of or from any governmental authority or agency inconnection with the conduct of the Business Segment which, if not obtained,could materially and adversely affect the Business Segment or the PurchasedAssets.  Seller and the Business Segmenthave complied and are in compliance, in all material respects, with the termsand conditions of the Permits and no violation of any of the Permits or thelaws or rules governing the issuance or continued validity thereof has occurred.  Seller has not received any claim or notice,have no knowledge indicating, that Seller or the Business Segment  is not in compliance with the terms of anysuch Permits or with any of the requirements, standards and procedures of thefederal, state, county, local and foreign governmental regulatory bodies whichissued them.  To Seller’s knowledge,Seller is in material compliance with all federal, state, county and locallaws, ordinances, codes, regulations, orders, requirements, standards andprocedures which are applicable to Seller, the Business Segment or thePurchased Assets.

             Section 3.33     Proprietary Information. Neither Seller, nor any Principal (nor to the best knowledge of Seller,any employee of Seller) has disclosed any confidential information purported tobe transferred hereunder (including, but not limited to, current or prospectivecustomer lists, financial statements, trade secrets, methods by which thebusiness of Seller is or has been conducted, and methods by which the customersor business of Seller are or have been obtained) which does not exist in thepublic domain to any third party except (i) in the ordinary course of businessand then under appropriate confidentiality covenants or agreements sufficientto protect and maintain the confidentiality and proprietary nature of suchinformation, (ii) to prospective buyers of the Business Segment underappropriate confidentiality covenants or agreements sufficient to protect andmaintain the confidentiality and proprietary nature of such information, and(iii) to Purchaser or its agents or representatives.

             Section 3.34     Necessary Property. The Purchased Assets (including the Assigned Contracts) constitute allof the property, rights and agreements now used, necessary or advisable for theconduct and operation of the Business Segment in the manner and to the extentpresently conducted or currently proposed to be conducted by Seller.  Each Assigned Contract is valid, binding,and in full force and effect and has not been amended, rescinded, or modified,will not be breached or violated as a result of its assignment to Purchaser(except for the obtaining of the appropriate consents for the AssignedContracts which are listed on Schedule 3.15 as requiring consents) and will befully enforceable by Purchaser in accordance with its terms.  To the best of Seller's and Principal'sknowledge, no party to any of the Assigned Contracts is in default or allegedto be in default thereunder and there exists no condition or event which, afternotice or lapse of time or both, would constitute a default by any party andSeller is not aware of any cancellation, or threat to cancel or not to renew orextend any of the Assigned Contracts by any party thereto.  A list of all the Assigned Contracts isattached as Schedule l.l(f) and Seller has furnished Purchaser completeand accurate copies of the Assigned Contracts. Except for the Assigned Contracts, Seller has no oral or writtenagreement, contract or understanding with any person or entity

 

Section3.35     Environmental Matters.

             (a)         Thefollowing terms shall have the following meanings:

             (i)          "ApplicableEnvironmental Laws" means all federal, state and local or municipal,statutory, regulatory and common law requirements relating to the protection ofhuman health and safety or the environment, including, without limitation, theComprehensive Environmental Response Compensation and Liability Act (42 U.S.C.§ 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Clean Water Act, (33 U.S.C. § 1251 et seq.), the Clean AirAct, (42 U.S.C. § 7401 et seq.), the Toxic Substance Control Act (15 U.S.C. §2601 et seq.), Federal Insecticide Fungicide Rodenticide Act (7 U.S.C. § 136 etseq.), Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), and allapplicable judicial, administrative, and regulatory decrees, judgments, andorders.

             (ii)         "Hazardous Materials" means any chemicalsubstances, pollutants, contaminants, materials, industrial solid wastes orother wastes, or combinations thereof, whether solid, liquid or gaseous innature which poses or may pose a hazard to the health or safety of persons orthe environment or the presence of which may require investigation orremediation under any Applicable Environmental Laws, including, withoutlimitation, material which is or becomes defined as a "hazardouswaste" or "hazardous substance" under the ComprehensiveEnvironmental Response Compensation and Liability Act (42 U.S.C. § 9601 etseq.) and/or the Resource Conservation and Recovery Act (42 U.S.C. § 6901 etseq.) or which contains gasoline, diesel fuel or other petroleum hydrocarbons,polychlorinated biphenyls (PCBs), asbestos, urea formaldehyde foam insulation,or radon gas.

             (b)        Tothe best of Seller's and Principal's knowledge, Seller is and has been incompliance with all Applicable Environmental Laws.

             (c)         Tothe best of Seller's and Principal's knowledge, there has been no past orpresent spill, discharge, disposal or release of Hazardous Materials onto orfrom the Real Property or other property occupied by Seller, nor are anyHazardous Materials presently deposited, stored, or otherwise located on,under, in or about the Real Property or such other property (except in strictcompliance with applicable laws), nor have any Hazardous Materials migratedfrom the Real Property or such other property upon or beneath other properties.

             (d)        Schedule3.35(d) contains a list of all applicable permits, licenses, approvalsand/or registrations required to be issued to it under Applicable EnvironmentalLaws on account of any or all of its activities and is in full compliance withthe terms and conditions of each permit, license, approval andregistration.  No material change in thefacts or circumstances reported or assumed in the application for or grantingof such permit, license, approval or registration exists.  Each such permit, license, approval, orregistration is in full force and effect, and following consummation of thetransactions contemplated herein, will continue to be in full force and effectwithout any consent or approval, or may be modified, transferred or replaced byPurchaser in the ordinary course of business without any interruption of theconduct of its business, assuming timely application therefor and reasonablediligence in pursuit thereof by Purchaser.

             (e)         Seller has not received any notice orother communication concerning any alleged violation of any ApplicableEnvironmental Law, whether or not corrected to the satisfaction of theappropriate authority, or notice or other communication concerning allegedliability for any response costs or remedial action in connection with: (i) theReal Property or any other property occupied by Seller, or (ii) any activitiesof Seller, or for which Seller is alleged to be liable under any ApplicableEnvironmental Law. There exists no writ, injunction, decree, order, judgment,or lien outstanding, nor any lawsuit, claim, proceeding, citation, directive,summons or investigation, pending or, to the Seller's actual knowledge,threatened, relating to: (i) the occupancy, use, maintenance or operation ofthe Real Property or other property occupied by Seller, or (ii) conduct of theBusiness Segment or other operations by Seller, or (iii) any alleged violationof Applicable Environmental Law by Seller or (iv) the suspected presence ofHazardous Materials on the Real Property or other property occupied by Seller(other than those stored or utilized by Seller in the conduct of the BusinessSegment which storage and usage has been and is in conformity with applicablelaws including but not limited to Applicable Environmental Laws).

             (f)         Noclaim has been asserted, and Seller has no actual knowledge of any unassertedclaims arising out of violations of any Applicable Environmental Laws or thehandling, treatment, storage, transportation, disposal (or the arrangingtherefor) or the discharge into the environment of any Hazardous Materials,including, without limitation, claims for penalties, natural resource damage,personal injury, property damage or response or remedial costs.

             (g)        Nounderground storage tanks for petroleum or any other substance, or undergroundpiping or conduits associated with such tanks, are or have previously beenlocated on the Real Property or any other property occupied by Seller.

             (h)        NoHazardous Materials, including without limitation, asbestos-containingmaterials or PCB-containing materials, are installed, contained in buildingmaterial, contained in transformers or other electrical equipment, or areotherwise present on the Real Property nor any other property occupied bySeller (other than those stored or utilized on the Real Property by Seller inthe conduct of the Business Segment which storage and usage has been and is inconformity with Applicable Environmental Laws).

             (i)          Sellerhas not been refused insurance coverage, nor has insurance coverage ever beencanceled, as a result of the presence of Hazardous Materials on the RealProperty or other property occupied by Seller, or violations of ApplicableEnvironmental Laws, or due to other concerns relating to matters affectinghuman health or the environment.

             (j)          Thereare no activities on the Real Property or any other property occupied bySeller, or any type of material, including but not limited to Hazardous Materials,on the Real Property or other property occupied by Seller that would currentlyrequire deed recordation of such activities by Seller.

             (k)         Thereare no active or inactive solid waste management units or hazardous wastemanagement units on the Real Property or any other property occupied by Seller.

             (l)          There are no plans or documents,whether or not government approved, including, but not limited to, contingencyplans, closure and post-closure plans or consent decrees or settlementagreements which impose environmental obligations on Seller or against the RealProperty.  There are no requirements,whether by regulation, agreement or otherwise, imposing financial obligationson Seller or on the Real Property with respect to environmental conditions or activitieswhich exist, have existed, are occurring or have occurred on the Real Propertyor in connection with or resulting from the conduct of the Business Segment bySeller or other activities of Seller.

             (m)        Sellerhas provided Purchaser with all environmental studies and reports in itspossession or control by whomsoever conducted, all environmental records ofSeller, and all documents of Seller concerning environmental conditions of theReal Property or other property occupied by Seller, or which identifyunderground tanks, or otherwise relate to actual or potential contamination ofthe soil or groundwater.

             (n)        NoHazardous Materials have been disposed of by Seller on the Real Property orother property occupied by it or have been transported to any off-site disposalarea other than those identified in Schedule 3.35(n) and, to the actualknowledge of Seller, none of those sites have been designated or are beingconsidered for designation as a site requiring clean-up pursuant to anyEnvironmental Law.

             Section 3.36     Investment Representations.  Intentionally Deleted.

             Section 3.37     Accuracy of Information Furnished.  To Seller's best knowledge, all informationfurnished to Purchaser by Seller, as an Exhibit or Schedule hereto, is true,correct and complete in all material respects. Such information states all material facts required to be stated thereinor necessary to make the statements therein, in light of the circumstancesunder which such statements are made, true, correct and complete in allmaterial respects.  Seller has made dueinquiry and investigation concerning the matters to which representations andwarranties of Seller under this Agreement pertain and Seller is not unaware ofany facts, events or circumstances which have not been disclosed to Purchaserwhich are material to the Purchased Assets, the Business Segment or Seller.

**ARTICLE IV**Cross Default

             Section 4.1       Any breach or default under any covenant or any inaccuracy inany representation made by Seller’s Affiliate, Lasdorf Corporate Services,Inc., in that certain Asset Purchase Agreement of even date herewith amongPurchaser, Lasdorf Corporate Services, Inc. and Andrew Yasinsky, the soleshareholder of Lasdorf Corporate Services, Inc., including any exhibits andschedules thereto or in any certificate, document or other instrument deliveredin connection with the transfer or other transactions contemplated by this suchagreement shall be deemed a breach and default under this Agreement by Sellerand the Principal.  In that event,Purchaser shall have the right to any and all legal remedies available to itfor a breach/violation of both Asset Purchase Agreements

**ARTICLE V**Indemnification

             Section 5.1       Seller's Indemnity. Subject to the terms and conditions of this Article V, Seller and thePrincipal, and each of them hereby jointly and severally agree to indemnify,defend and hold Purchaser and its shareholders, officers, directors, agents,attorneys and affiliates (defined as Purchaser and any person or entitycontrolling, controlled by, or under common control with, Purchaser) harmlessfrom and against all losses, claims, obligations, demands, assessments,penalties, liabilities, costs, damages, reasonable attorneys' fees and expenses(collectively, "Damages"), incurred by any or all of them or assessedagainst the Purchased Assets by reason of or resulting from or based upon:

             (a)         Theinaccuracy of any representation or breach or default of or under any warranty,covenant or agreement made by Seller and/or the Principal in this Agreement,including, the Exhibits and Schedules or in any certificate, document or otherinstrument delivered in connection with the transfer or other transactionscontemplated by this Agreement including the Non-Compete Agreements;

             (b)        Anyproduct liability claims relating to products sold and/or leased by Seller;

             (c)         Anygeneral liability claims arising out of or relating to occurrences of anynature relating to the Business Segment or the conduct thereof, prior to theClosing, whether any such claims are asserted prior to or after the Closing;

             (d)        Anyobligation or liability under or related to any Plan or the terminationthereof;

             (e)         Anyfailure to comply with all applicable bulk transfer laws;

             (f)         Anysales, use, or similar taxes in connection with the purchase and saletransaction contemplated by this Agreement; or

             (g)        Anygeneral liability claims arising out of or relating to occurrences of anynature relating to Seller's conduct from and after the Closing.

             Section 5.2       Purchaser's Indemnity. Subject to the terms and conditions of this Article V, Purchaserhereby agrees to indemnify, defend and hold Seller and its shareholders,officers, directors, agents, attorneys and affiliates (defined as Seller and anyperson or entity controlling, controlled by, or under common control with,Seller), and Principal harmless from and against all Damages asserted againstor incurred by any or all of them by reason of or resulting from or based on:

             (a)         Theinaccuracy of any representation or breach or default of or under any warranty,covenant or agreement made by Purchaser in this Agreement, including Exhibitsand Schedules, or in any certificate, document, or other instrument deliveredin connection herewith or with the transfer or other transactions contemplatedby this Agreement;

             (b)        Thefailure of Purchaser to pay, perform and discharge when due any AssumedLiabilities;

             (c)         Anyproduct liability claims relating to products sold by Purchaser; or
             (d)        Anygeneral liability claims arising out of or relating to occurrences of anynature relating to the conduct of the Business Segment after the Closing.

             Section 5.3       Conditions of Indemnification.  The respective obligations and liabilitiesof Seller and Purchaser (the "indemnifying party") to the other (the"party to be indemnified") under Sections 5.1 and 5.2 hereof withrespect to claims resulting from the assertion of liability by third partiesshall be subject to the following terms and conditions:

             (a)         Within20 days (or such earlier time as might be required to avoid prejudicing theindemnifying party's position) after receipt of notice of commencement of anylegal action evidenced by service of process or other legal pleading, or withreasonable promptness after the assertion in writing of any claim by a thirdparty, the party to be indemnified shall give the indemnifying party writtennotice thereof together with a copy of such claim, process or other legalpleading, and the indemnifying party shall have the right to undertake thedefense thereof by representatives of its own choosing (but subject to theapproval of the indemnified party which approval will not be unreasonablywithheld or delayed) and at its own expense; provided, however, that the partyto be indemnified may participate in the defense with counsel of its own choiceand at its own expense and, provided further, that the failure of the party tobe indemnified to give timely notice shall not affect the right toindemnification hereunder except to the extent (and then only to the extent)the indemnifying party proves actual damages caused by such failure.

             (b)        Inthe event that the indemnifying party, by the 30th day after receipt of noticeof any such claim (or, if earlier, by the 10th day preceding the day on whichan answer or other pleading must be served in order to prevent judgment bydefault in favor of the person asserting such claim), does not elect to defendagainst such claim, the party to be indemnified will (upon further notice tothe indemnifying party) have the right to undertake the defense, compromise orsettlement of such claim on behalf of and for the account and risk of theindemnifying party and at the indemnifying party's expense, subject to theright of the indemnifying party to assume the defense of such claims inaccordance with this Section 5.3(b) at any time prior to settlement, compromiseor final determination thereof.

             (c)         Anythingin this Section 5.3 to the contrary notwithstanding, the indemnifying partyshall not settle any claim without the consent of the party to be indemnifiedunless such settlement involves only the payment of money and the claimantprovides to the party to be indemnified a release from all liability in respectof such claim.  If the settlement of theclaim involves more than the payment of money, the indemnifying party shall notsettle the claim without the prior consent of the party to be indemnified,which consent shall not be unreasonably withheld.

             (d)        Theparty to be indemnified and the indemnifying party will each cooperate with allreasonable requests of the other.

             Section 5.4       Remedies Not Exclusive.  The remedies provided in this Article V shall not be exclusive ofany other rights or remedies available by one party against the other, eitherat law or in equity.

             Section 5.5       Actions to Minimize Losses.  Notwithstanding any provision of this Article V to the contrary,any party to this Agreement shall be entitled, without first complying with theprovisions of Sections 5.1, 5.2 or 5.3 hereof, to (c) pay to and/or compromiseor settle with the claimant any claim for which such party is entitled toindemnification under Section 5.1 or 5.2 hereof, if delay in the resolution ofsuch claim could reasonably be expected to have an immediate and material adverseeffect on such party or on the conduct of the Business Segment and(d) compromise and settle any lawsuit, enforcement action oradministrative proceeding for which indemnification is provided to such party,or with respect to which such party has the right to control the defense andinvestigation under Section 5.3 hereof, if the pendency of such lawsuit,enforcement action or administrative proceeding or delay in the resolution ofthe claim to which it relates could reasonably be expected to have an immediateand material adverse effect on the conduct of the Business Segment; provided,however, such party shall, prior to exercising its rights pursuant to thisSection 5.6, give at least ten (10) days prior written notice to the otherparty(ies) of the intent to exercise the rights granted hereunder, theoccurrence causing such intended exercise, the action requested of the otherparty(ies) and the time within which such action by the other party(ies) mustbe taken to avoid the exercise of rights pursuant to this Section 5.5.

             Section 5.6       Restrictions on Indemnification.  Neither party shall have liability underthis Article V arising from any breach of warranty, misrepresentation oromission unless the aggregate amount of all Damages finally determined to arisefrom such breaches, misrepresentations or omissions exceeds Fifty ThousandDollars ($50,000), and, in such event the indemnifying party shall be requiredto pay the full amount of such Damages including the first Fifty ThousandDollars ($50,000) of such Damages.

**ARTICLE VI**

Miscellaneous

             Section 6.1       Amendment and Waiver. No provision of this Agreement may be amended, modified, supplemented orwaived except by an instrument in writing executed by all of the parties heretoor, in the case of an asserted waiver, executed by the party against whichenforcement of the waiver is sought.

             Section 6.2       Assignment. Neither this Agreement nor any right created hereby shall be assignableby any party hereto, except by Purchaser to an affiliate.

             Section 6.3       Notice.  Anynotice or communication must be in writing and given by depositing the same inthe United States mail, addressed to the party to be notified, postage prepaidand registered or certified with return receipt requested, or by delivering thesame in person or by fax.  Such noticeshall be deemed received on the date on which it is hand-delivered or faxed(with confirmation received) or on the third business day following the date onwhich it is so mailed.  For purposes ofnotice, the addresses of the parties shall be:
If to Purchaser:HyperFeed  Technologies, Inc.   300 South Wacker Drive  Suite 300  Chicago, IL 60606  Attn: John Juska  Fax: 312-913-2900  with a copy to:Craig M. White, Esq.  Wildman, Harrold, Allen & Dixon  225 West Wacker Drive,  Suite 3000  Chicago, IL 60606  Fax: 312-201-2555  If to Seller:Lasdorf Corporate  Services, Inc.  c/o Andrew Yasinsky  512 Davey Glen Rd.  Belmont, CA 94002  Fax: (650)654-3354with a copy to:David C. Longinotti  Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP.  333 Market Street, Suite 2300  San Francisco, CA 94105  FAX:  (415)541-9366
Anyparty may change its address for notice by written notice given to the otherparties in accordance with this Section 6.3.

             Section 6.4       Confidentiality. Until the Closing, the parties shall keep this Agreement and its termsconfidential, but after the Closing (i) any party may make such disclosuresafter the Closing as it reasonably considers are required by law, but eachparty will notify the other parties in advance of any such disclosure and (ii)the parties may disclose this Agreement, but not its terms, in such manner assuch party deems in the exercise of good faith necessary or appropriate.  In the event that the transactionscontemplated by this Agreement are not consummated for any reason whatsoever,the parties hereto agree not to disclose or use any confidential informationthey may have concerning the affairs of the other parties, except forinformation which is required by law to be disclosed.  Confidential information includes, but is not limited to:customer lists and files, prices and costs, business and financial records,valuations, surveys, reports, plans, proposals, financial information,information relating to personnel contracts, stock ownership, liabilities andlitigation.  Should the transactionscontemplated hereby not be consummated, nothing contained in this section shallbe construed to prohibit a party hereto from operating a business incompetition with the other party.

             Section 6.5       Entire Agreement. This Agreement and the exhibits hereto supersede all prior agreementsand understandings relating to the subject matter hereof, except that theobligations of any party under any agreement executed pursuant to thisAgreement shall not be affected by this Section.

             Section 6.6       Transactional Expenses.

             (a)         Exceptas otherwise provided in this Agreement, Purchaser and Seller shall each beartheir respective costs and expenses of the transactions contemplated hereby,including without limitation, the fees and expenses of their attorneys,accountants and other advisors. The prevailing party in any arbitration orother legal proceeding hereunder or under any agreement executed pursuanthereto will, however, be entitled to recover its reasonable attorneys' fees andexpenses.

             (b)        Sellershall pay out of the proceeds of the purchase and sale transaction contemplatedby this Agreement all sales, use, and similar taxes, if any, in connection withsuch purchase and sale of the Purchased Assets.

             Section 6.7       Severability. If any provision of this Agreement is held to be illegal, invalid orunenforceable under present or future laws effective during the term hereof,such provision shall be fully severable and this Agreement shall be construedand enforced as if such illegal, invalid or unenforceable provision nevercomprised a part hereof; and the remaining provisions hereof shall remain infull force and effect and shall not be affected by the illegal, invalid orunenforceable provision or by its severance herefrom.  Furthermore, in lieu of such illegal, invalid or unenforceableprovision, there shall be added automatically as part of this Agreement, aprovision as similar in its terms to such illegal, invalid or unenforceableprovision as may be possible and be legal, valid and enforceable.

             Section 6.8       Specific Performance. Each party to this Agreement acknowledges that a refusal by the otherparty to consummate the transactions contemplated hereby will cause irrevocableharm to the non-refusing party, for which there may be no adequate remedy atlaw and for which the ascertainment of damages would be difficult.  Therefore, the non-refusing party shall beentitled, in addition to, and without having to prove the inadequacy of, otherremedies at law, to specific performance of this Agreement, as well asinjunctive relief.

             Section 6.9       Survival of Representations.  Warranties and Covenants. Except as otherwise set forth in thisSection 6.9, all representations and warranties of the parties hereunder shallsurvive for three (3) years after the Closing Date; provided that there shallbe no termination of any such representation or warranty as to which a claimhas been asserted prior to the termination of such survival period.  All representations and warranties of Sellerset forth in Sections 3.4, 3.9 and 3.35 shall survive indefinitely.  All representations and warranties of Sellerset forth in Section 3.14 shall survive the Closing and remain effective untilone year after the expiration of the applicable statute of limitations for claimsthat might be asserted for matters related thereto.

             Section 6.10     Governing Law. This Agreement shall be governed by, and construed in accordance with,the substantive laws of the State of Illinois without reference or regard tothe conflicts of law rules of said state. In the event a dispute arises under this Agreement, the parties agreethat the exclusive jurisdiction and venue for the resolution of any disputeshall be state and Federal courts located in Cook County, Illinois.  Each party irrevocably submits to thejurisdiction of the State of Illinois and waives any objection, which it mayhave based upon improper venue or forum non conveniens to the conduct of anyproceeding in any such court.  Both partieswaive personal service of any process upon it and consents to service ofprocess by mail.

             Section 6.11     Captions.  Thecaptions in this Agreement are for convenience of reference only and shall notlimit or otherwise affect any of the terms or provisions hereof.

             Section 6.12     Counterparts.  ThisAgreement may be executed in counterparts, each of which shall be deemed anoriginal, and all of which together shall constitute one and the sameinstrument.

             Section 6.13     Number and Gender. Whenever the context requires, references in this Agreement to thesingular number shall include the plural, the plural number shall include thesingular and words denoting gender shall include the masculine, feminine andneuter.

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             IN WITNESS WHEREOF, the partieshereto, intending to be legally bound, have executed this Agreement as of thedate first above written.

 
 PURCHASER:       HyperFeed Technologies  Corporation,  a Delaware corporation   By:    Name:    Its:          SELLER:       Lasdorf Corporate Services,  Inc.,   a California corporation   By:    Name:    Its:          PRINCIPAL:                Name:Andrew Yasinsky 
 

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Attorney  Name:  Geoffrey CockrellDocs  Open No.:  **644370v1**Extension:  2422Client ID:  C5950-00001 (N/B)Secretary  Extension:  2466Billing  Attorney:  Floor:  26Duplicate  Document No.:  Document Title:  HF – APA TIME  IN                                                                                DUE  DATE/TIME                                                                     COMPARE  TO                                                                                              ________________                                                          _______________   DRAFT                                                                             MAKE  NEW VERSION                                                                               FINAL(for compare purposes)MAKE NEW DOCUMENT
 

 

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