Filed by Bowne Pure Compliance





Exhibit 10.1




ASSET PURCHASE AGREEMENT




BETWEEN




VALKRE SOLUTIONS, INC.




AND




TECHNOLOGY SOLUTIONS COMPANY




Effective as of December 31st, 2008



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I. PURCHASE AND SALE OF ASSETS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Conveyance and Transfer of Assets
	 	 	 1	 
	Section 1.2 Assumption of Liabilities and Obligations
	 	 	 2	 
	Section 1.3 Prorations
	 	 	 3	 
	Section 1.4 Purchase Price
	 	 	 3	 
	Section 1.5 Payment of Cash Purchase Price
	 	 	 4	 
	Section 1.6 Allocation of Purchase Price
	 	 	 4	 
	 
	 	 	 	 
	ARTICLE II. THE CLOSING
	 	 	4	 
	 
	 	 	 	 
	Section 2.1 Date and Place
	 	 	 4	 
	Section 2.2 Delivery of Documents
	 	 	 4	 
	 
	 	 	 	 
	ARTICLE III. RELATED TRANSACTIONS
	 	 	4	 
	 
	 	 	 	 
	Section 3.1 Employment Releases
	 	 	 4	 
	 
	 	 	 	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER
	 	 	5	 
	 
	 	 	 	 
	Section 4.1 Corporate Organization
	 	 	 5	 
	Section 4.2 Corporate Authority; Authorization of Agreement
	 	 	 5	 
	Section 4.3 No Violation
	 	 	 5	 
	Section 4.4 No Undisclosed Liabilities
	 	 	 5	 
	Section 4.5 Absence of Changes
	 	 	 6	 
	Section 4.6 Title to Properties; Encumbrances
	 	 	 7	 
	Section 4.7 Sufficiency of Assets
	 	 	 7	 
	Section 4.8 Real Property
	 	 	 7	 
	Section 4.9 Leases
	 	 	 7	 
	Section 4.10 Condition of Tangible Assets
	 	 	 7	 
	Section 4.11 Accounts Receivable
	 	 	 8	 
	Section 4.12 Intellectual Property Matters
	 	 	 8	 
	Section 4.13 Contracts and Commitments
	 	 	 8	 
	Section 4.14 Insurance
	 	 	 9	 
	Section 4.15 Compliance with Laws
	 	 	 9	 
	Section 4.16 Employment Matters
	 	 	10	 
	Section 4.17 Employee Benefit Plans and Arrangements
	 	 	10	 
	Section 4.18 Litigation
	 	 	11	 
	Section 4.19 Governmental Consents
	 	 	11	 
	Section 4.20 Other Consents
	 	 	11	 
	Section 4.21 Product and Service Warranty
	 	 	11	 
	Section 4.22 Product and Service Liability
	 	 	11	 
	Section 4.23 Customers, Suppliers and Sales Representatives
	 	 	11	 
	Section 4.24 Guarantees
	 	 	12	 
	Section 4.25 Brokers or Finders
	 	 	12	 
	Section 4.26 Taxes
	 	 	12	 
	Section 4.27 Full Disclosure
	 	 	12	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PURCHASER
	 	 	12	 
	 
	 	 	 	 
	Section 5.1 Organization
	 	 	12	 
	Section 5.2 Authorization
	 	 	13	 
	Section 5.3 No Violation
	 	 	13	 
	Section 5.4 Governmental Consents
	 	 	13	 
	Section 5.5 Other Consents
	 	 	13	 
	Section 5.6 No Brokers
	 	 	13	 
	Section 5.7 Insurance
	 	 	13	 
	Section 5.8 Compliance With the Law
	 	 	14	 
	Section 5.9 Litigation
	 	 	14	 
	Section 5.10 Full Disclosure
	 	 	14	 






 


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	ARTICLE VI. CERTAIN COVENANTS OF SELLER
	 	 	14	 
	 
	 	 	 	 
	Section 6.1 Satisfaction of Conditions
	 	 	14	 
	 
	 	 	 	 
	ARTICLE VII. CERTAIN COVENANTS OF PURCHASER
	 	 	15	 
	 
	 	 	 	 
	Section 7.1 Satisfaction of Conditions
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VIII. ADDITIONAL COVENANTS AND AGREEMENTS
	 	 	15	 
	 
	 	 	 	 
	Section 8.1 Payment of Taxes and Certain Expenses
	 	 	15	 
	Section 8.2 Noncompetition; Nonsolicitation; Nondisclosure
	 	 	15	 
	Section 8.3 Mail Received After Closing
	 	 	16	 
	Section 8.4 Cooperation and Records Retention
	 	 	16	 
	Section 8.5 Offers of Employment
	 	 	17	 
	Section 8.6 Further Assurances
	 	 	17	 
	 
	 	 	 	 
	ARTICLE IX. CONDITIONS TO THE OBLIGATIONS OF PURCHASER
	 	 	17	 
	 
	 	 	 	 
	Section 9.1 Representations and Warranties True
	 	 	17	 
	Section 9.2 Compliance with this Agreement
	 	 	17	 
	Section 9.3 Documents to be Delivered
	 	 	17	 
	Section 9.4 Consents, Releases and Approvals
	 	 	18	 
	Section 9.5 No Injunctions
	 	 	18	 
	Section 9.6 Material Adverse Changes
	 	 	18	 
	 
	 	 	 	 
	ARTICLE X. CONDITIONS TO THE OBLIGATIONS OF SELLER
	 	 	19	 
	 
	 	 	 	 
	Section 10.1 Representations and Warranties True
	 	 	19	 
	Section 10.2 Compliance with this Agreement
	 	 	19	 
	Section 10.3 Payment of Purchase Price
	 	 	19	 
	Section 10.4 Documents to be Delivered
	 	 	19	 
	Section 10.5 No Injunction
	 	 	19	 
	 
	 	 	 	 
	ARTICLE XI. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
	 	 	20	 
	 
	 	 	 	 
	Section 11.1 Survival of Representations and Warranties
	 	 	20	 
	Section 11.2 Indemnification by Seller
	 	 	20	 
	Section 11.3 Indemnification by Purchaser
	 	 	21	 
	Section 11.4 Limitation on Amount
	 	 	21	 
	Section 11.5 Notice of Claims
	 	 	22	 
	 
	 	 	 	 
	ARTICLE XII. MISCELLANEOUS PROVISIONS
	 	 	22	 
	 
	 	 	 	 
	Section 12.1 Amendment
	 	 	22	 
	Section 12.2 Waiver of Compliance
	 	 	22	 
	Section 12.3 Notices
	 	 	23	 
	Section 12.4 Specific Performance
	 	 	23	 
	Section 12.5 Expenses
	 	 	23	 
	Section 12.6 Severability
	 	 	23	 
	Section 12.7 Assignment
	 	 	24	 
	Section 12.8 Dispute Resolution
	 	 	24	 
	Section 12.9 Governing Law
	 	 	24	 
	Section 12.10 Counterparts
	 	 	24	 
	Section 12.11 Headings
	 	 	24	 
	Section 12.12 Entire Agreement
	 	 	24	 
	Section 12.13 Third Parties
	 	 	25	 
	Section 12.14 Performance Following Closing
	 	 	25	 
	Section 12.15 Certain Definitions
	 	 	25	 
	Section 12.16 Source Code Escrow
	 	 	25	 





 


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ASSET PURCHASE AGREEMENT




THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into this 31st day of December,
2008 by and between TECHNOLOGY SOLUTIONS COMPANY, a Delaware corporation (the “Seller”), and VALKRE
SOLUTIONS, INC, a Delaware corporation (“Purchaser”).



WITNESSETH:




WHEREAS, Seller desires to sell to Purchaser substantially all of the assets, certain
liabilities, properties, operations and business relating to its Customer Value Creation Consulting
Practice (the “CVC Practice”), which is engaged in the business of providing software and services
related to assisting customers indentify, measure and improve the value they create for their
clients; and Purchaser desires to purchase from Seller such assets, liabilities, properties and
business, as set forth below and in the attached schedules, upon the terms and subject to the
conditions hereinafter set forth.



NOW, THEREFORE, in consideration of the premises and of the respective representations,
warranties, covenants, agreements and conditions contained herein, the parties hereto, intending to
be legally bound, hereby agree as follows:



ARTICLE I.




PURCHASE AND SALE OF ASSETS




Section 1.1 Conveyance and Transfer of Assets Upon the terms and subject to all of the
conditions contained herein and the performance by each of the parties hereto of their respective
obligations hereunder, Purchaser hereby agrees to purchase from Seller, and Seller hereby agrees to
sell and deliver to Purchaser at the Closing (hereinafter defined) the assets of the Seller’s CVC
Practice set forth in Schedule 1.1(a) hereto (the “Assets”); assign the services agreements set
forth in Schedule 1.1(b) hereto (the “Services Agreements”) and transfer other properties of the
business which are set forth in this section, Section 1.1 (i) through (viii); all of which shall
constitute “Transferred Assets” as defined in this Agreement free and clear of all liens, claims,
encumbrances, charges, security interests or restrictions of any type whatsoever (“Encumbrances”),
other than the Assumed Liabilities (as defined in Section 1.2 hereof) to be assumed by Purchaser as
set forth in Section 1.2 hereof:




(i) all of the intangible rights and property of the CVC Practice utilized exclusively
in the CVC Practice, including all such trademarks, trade names, service marks, inventions,
patents, patent rights, applications for patents, similar rights, trade secrets, know-how,
processes, product mixes, software, licenses, including software licenses, designs, going
concern value and goodwill, and website content directly related to the CVC Practice;


 


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(ii) all marketing studies, customer lists, files, supplier files, sales agent and
manufacturers’ representatives’ files, credit files, credit data, appraisals, valuations,
and consulting studies used by the CVC Practice and all other records and reports used
exclusively by the CVC Practice and all computers, computer programs, computer software,
computer manuals, flowcharts, printouts, data files, program documentation and related
materials and copies used exclusively by the CVC Practice, excluding any like items
previously mentioned, which are used to run the daily operations of Seller’s other
businesses;




(iii) all deposits (other than income tax deposits) and the appropriate amount of all
expenses and deferred charges that have been prepaid or paid in advance by Seller prior to
the Closing that directly relate to the CVC Practice (“Pre-Paid Obligations”);




(iv) all accounts receivable of the CVC Practice, other than those excluded pursuant to
Section 1.6 hereof (the “Accounts Receivable”);




(v) all of Seller’s right, title and interest in and to all contracts, licenses and
agreements of Seller exclusively relating to the CVC Practice that are transferable,
including personal property leases, all contracts and agreements with customers and
suppliers of Seller relating to the CVC Practice entered into in the ordinary course of
business, including open orders (the “Contracts”), including those described on Schedules
4.10 and 4.14 hereto;




(vi) all stationery and other printed material, office supplies, catalogs and
circulars, telephone, telecopy and email addresses and listings exclusively related to the
CVC Practice, and the right to receive mail and other communications and shipments of
merchandise addressed to the CVC Practice;




(vii) all files, records and documentation relating to the CVC Practice; and




(viii) all of Seller’s right, title and interest in and to all of the CVC Practice’s
service agreements, maintenance agreements and express and implied warranties of third
parties that continue in effect after the Closing.



Section 1.2 Assumption of Liabilities and Obligations




(a) As of the Closing Date and subject to the limitations set forth in this Section and
Section 1.3 below, Purchaser shall assume and pay, discharge and perform all of the liabilities set
forth in Schedule 1.2(a) hereto (the “Assumed Liabilities”) which shall include the following:




(i) all obligations and liabilities of Seller under any service agreements and other
Contracts, relating to the time period after the Closing (the “Assumed Contract
Liabilities”); and




(ii) the CVC Current Liabilities (as defined in Section 1.6); and




(iii) those obligations and liabilities specifically set forth in Schedule 1.2(a)
hereto.


 


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(b) Except for the Assumed Liabilities, Purchaser shall not assume or otherwise agree to pay,
discharge or perform any other liabilities or obligations of Seller in respect of the CVC Practice
of Seller (whether accrued, absolute, contingent or otherwise, whether or not disputed, or whether
or not disclosed to Purchaser), and the Transferred Assets shall be transferred, assigned and
conveyed to Purchaser free and clear of all Encumbrances (other than the Assumed Liabilities).



(c) Seller shall remain responsible for the payment of those liabilities and obligations of
Seller which relate to the CVC Practice other than Assumed Liabilities.



(d) Except as set forth in Schedule 1.2(b) Purchaser shall assume all warranty claims related
to the CVC Practice.



Section 1.3 Prorations Except as otherwise specifically provided in this Agreement, real
and personal property taxes and assessments levied against the Transferred Assets, property and
equipment rentals, and similar prepaid and deferred items shall be prorated between Purchaser and
Seller in accordance with the principle that Seller shall be responsible for such liabilities
allocable to the conduct of the CVC Practice for the period prior to the Closing, and Purchaser
shall be responsible only for such liabilities allocable to the conduct of the Business by
Purchaser following the Closing. Seller and Purchaser shall deliver a statement setting forth such
prorations at the time of making any such proration payment. Any prorations will, insofar as
feasible, be determined and paid on the Closing Date, with final settlement and payment by the
appropriate party occurring no later than 30 days after the actual amount becomes known.



Section 1.4 Purchase Price Subject to the terms and conditions hereof, in consideration of
the sale, transfer, conveyance, assignment and delivery of the Transferred Assets and for the
rights to receive and rely upon the representations, warranties, covenants and agreements of
Seller, the Purchaser (a) shall pay Four Hundred Thousand and No/100 Dollars ($400,000.00) and (b)
shall assume the Assumed Liabilities (the “Purchase Price”); and



(a) Other Consideration Subject to the terms and conditions hereof, in consideration of the sale,
transfer, conveyance, assignment and delivery of the Transferred Assets and for the rights to
receive and rely upon the representations, warranties, covenants and agreements of Seller, the
Purchaser (a) shall pay a seven percent (7%) commission on all signed contracts exceeding One
Million Two Hundred and Fifty Thousand and No/100 Dollars ($1,250,000) for a period of twelve
months from the date hereof and (b) shall make such payments to Seller when invoiced to its
clients regardless of the twelve month period of time. For the purposes of this Section 1.4(a),
the Parties agree that contract executed between Purchaser and Owens Corning Sales, LLC, dated
December 19th, 2008, and indentified in Schedule 1.1(b), for One Million and No/100
Dollars ($1,000,000) will be applied to the threshold requirements One Million Two Hundred and
Fifty Thousand and No/100 Dollars ($1,250,000) identified above.



(b) Disclosure of Records Purchaser shall make available, upon request by Seller the books,
documents, and records of Purchaser necessary to certify and fulfill the nature and extent of this
Section 1.4.


 


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Section 1.5 Payment of Cash Purchase Price The Cash Purchase Price payable at Closing shall
be paid in the following manner:



(a) At the Closing, Purchaser shall pay to Seller an amount equal to the Cash Purchase Price
(as defined in Section 1.4 above) minus Two Hundred and Seventy Thousand Dollars ($270,000.00) by
wire transfer of immediately available funds to an account designated by Seller in writing prior to
Closing; and



(b) At the Closing, Purchaser shall execute a promissory note in form attached hereto as
EXHIBIT A (the “Promissory Note”) evidencing Purchaser’s senior obligation to pay Two Hundred and
Seventy Thousand Dollars ($270,000.00) to Seller under the terms thereof.



Section 1.6 Allocation of Purchase Price The parties agree that the Purchase Price shall
be allocated among the Transferred Assets as determined by Purchaser in accordance with Section
1060 of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder.
Purchaser and Seller shall prepare and submit Internal Revenue Form 8594 prepared in accordance
with such allocation and this Section 1.6, and Seller and Purchaser shall file all tax returns
consistent with this Section 1.6. A tentative allocation is attached hereto as Schedule 1.6,
subject to adjustment pursuant to Section 1.5.



ARTICLE II.




THE CLOSING




Section 2.1 Date and Place The closing of the transaction contemplated hereby (the
“Closing”) shall take place on December 31, 2008 at the offices of Seller in Chicago, Illinois, or
at such other time and place as the parties mutually agree. The transactions contemplated by this
Agreement shall be deemed to be effective for all purposes as of 12:01 a.m. on the Effective Date.




Section 2.2 Delivery of Documents



(a) At Closing, Seller shall execute and deliver to Purchaser such assignments, bills of sale
and any other instruments of transfer necessary to convey to or perfect in Purchaser all of
Seller’s right, title and interest in and to the Transferred Assets.



(b) At Closing, Seller shall deliver to Purchaser those other items specified in Section 9.3
and Purchaser shall deliver to Seller those items specified in Section 10.4.



ARTICLE III.




RELATED TRANSACTIONS




Section 3.1 Employment Releases At Closing, Purchaser and Jerry Alderman, Brian Kiep, Alex
Monacelli, Gbenga Babarinde, Jamal Austin, and Matthew Cobb shall execute a Resignation and Release
Agreement in the form attached here as Exhibit B (the “Releases”).


 


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ARTICLE IV.




REPRESENTATIONS AND WARRANTIES OF SELLER





Seller hereby represents, warrants and covenants to Purchaser that:



Section 4.1 Corporate Organization Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware; Seller has full power and
authority to carry on its business as it is now being conducted and to own the properties and
assets it now owns; and Seller is duly licensed and qualified to do business in any state or other
jurisdiction or any foreign country or subdivision thereof where the nature of the CVC Practice or
the character and location of any properties and assets owned or leased by the Seller for the CVC
Practice make such qualification necessary (each of which are set forth in Schedule 4.1), except
where the failure to so qualify could not reasonably be expected to have a material adverse effect
on the CVC Practice or the Transferred Assets.



Section 4.2 Corporate Authority; Authorization of Agreement Seller has all requisite power
and authority to execute and deliver this Agreement, to consummate the transactions contemplated
hereby, and to perform all the terms and conditions hereof to be performed by it. The execution
and delivery of this Agreement, the performance of all the terms and conditions hereof to be
performed by Seller, and the consummation of the transactions contemplated hereby have been duly
authorized and approved by the Seller. This Agreement has been duly executed and delivered by
Seller and constitutes the valid and binding obligation of Seller enforceable against it in
accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency
or other laws relating to or affecting the enforcement of creditors’ rights generally and general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).



Section 4.3 No Violation Except as set forth in Schedule 4.3, neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated hereby will: (a)
conflict with or violate any provision of the Certificate of Incorporation or Bylaws of Seller; (b)
violate, conflict with, constitute a default (or an event which, with or without notice, lapse of
time or both, or the occurrence of any other event, would constitute a default) under, result in
the termination of, accelerate the performance required by, cause the acceleration of the maturity
of any debt or obligation pursuant to, or result in the creation or imposition of any security
interest, lien or other encumbrance upon any of the Transferred Assets under any agreement or
commitment to which Seller is a party or by which Seller is bound, or to which the Transferred
Assets are subject; or (c) violate any federal, state or local law or any judgment, decree, order,
regulation or rule of any court or governmental authority.



Section 4.4 No Undisclosed Liabilities Seller has no material liabilities or obligations
of any nature (whether absolute, accrued, contingent or otherwise, and whether due or to become
due) relating to the CVC Practice, the Transferred Assets or otherwise that are not fully
reflected or reserved against in the Interim Financial Statements of Seller, except for
(a) liabilities and obligations identified in Schedule 4.4 and (b) liabilities and obligations
incurred in the ordinary course of business and consistent with past business practice since the
date of the Interim Financial Statements.


 


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Section 4.5 Absence of Changes Except as set forth in Schedule 4.5 hereto, since December
31, 2007, the Seller has conducted the CVC Practice in all material respects only in the ordinary
course, including employee terminations for cost reduction and performance reasons, and during such
period there has been no:




(i) transactions by the CVC Practice or affecting the CVC Practice except in the
ordinary course of business that individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect on the CVC Practice;




(ii) destruction of, damage to, or loss of any of the assets to be included in the
Transferred Assets (whether or not covered by insurance) that could reasonably be expected
to have a Material Adverse Effect;




(iii) sale or transfer of any material asset which would otherwise be included in the
Transferred Assets except in the ordinary course of business;




(iv) amendment or termination of any material contract, agreement or license to which
Seller is a party in connection with the operation of the CVC Practice except for such
normal closure of service engagements with customers and suppliers;




(v) waiver of any right of material value with respect to the Transferred Assets;




(vi) mortgage, pledge or other encumbrance of any of the Transferred Assets;




(vii) waiver or release of any Transferred Asset, except in the ordinary course of
business;




(viii) any capital expenditure by the CVC Practice (or series of related capital
expenditures) involving more than $10,000 in the aggregate;




(ix) creation, incurrence, assumption, or guarantee by Seller of any indebtedness of
the CVC Practice, other than those included in the Assumed Liabilities impacting, affecting
or that could form an Encumbrance on the Transferred Assets;




(x) delay or postponement by Seller, beyond its normal practice, of the payment of
accounts payable and other liabilities of the CVC Practice which are being assumed by the
Purchaser and Seller has not instituted any unusual or accelerated collection efforts with
respect to its accounts receivable;




(xi) loan made by Seller to, or any other transaction with, any of the CVC Practice’s
officers, and employees which could give rise to any claim or right on Seller’s part against
any such person, or on the part of any such person against Seller, which exceeds $1,000,
other than reflected on the financial statements of Seller;




(xii) new employment contract or collective bargaining agreement involving the CVC
Practice or any of its employees, whether written or oral, or the substantial
modification of the terms of any existing such contract or agreement (other than wage
or salary increases in the ordinary course of business); or




(xiii) other event or condition of any character that has or might reasonably have a
material, adverse effect on the financial condition, business, assets or prospects of the
CVC Practice as it is being purchased by the Purchaser.


 


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Section 4.6 Title to Properties; Encumbrances Except as set forth on Schedule 4.6, Seller
has complete and unrestricted power and authority and the unqualified right to sell, transfer,
convey, assign, and deliver to Purchaser, and upon consummation of the transactions contemplated by
this Agreement, Purchaser will acquire good, valid and marketable title to, all the Transferred
Assets, free and clear of all title defects or other Encumbrances, including, without limitation,
leases, chattel mortgages, pledges, conditional sales contracts, collateral security arrangements
and other title or interest retention arrangements. The bills of sale, deeds, assignments and
other instruments to be executed and delivered to Purchaser by Seller at the Closing will be valid
and binding obligations of Seller enforceable in accordance with their terms, and will vest in
Purchaser good, valid and marketable title to all the Transferred Assets, free and clear of all
Encumbrances, including, without limitation, leases, chattel mortgages, pledges, conditional sales
contracts, collateral security arrangements and other title or interest retention arrangements.



Section 4.7 Sufficiency of Assets The Transferred Assets include all assets, properties
and rights currently being used by Seller in the operation of the CVC Practice, and all assets,
properties and rights necessary to permit Purchaser to conduct the CVC Practice in all material
respects in the same manner as Seller has conducted it to date.



Section 4.8 Real Property The Transferred Assets do not include any interest in real
property, neither fee nor leasehold.



Section 4.9 Leases Schedule 4.9 contains an accurate and complete list of all leases and
subleases pursuant to which Seller leases personal property used in or relating to the CVC Practice
and which are being assumed by the Purchaser as part of the transaction contemplated hereby.
Except as set forth in Schedule 4.9, all such leases are valid, binding and enforceable in
accordance with their terms, except to the extent that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’
rights and remedies generally, and are in full force and effect; there are no existing defaults by
Seller or lessor thereunder; and no event of default has occurred which (whether with or without
notice, lapse of time or the happening or occurrence of any other event) would constitute a
material default thereunder by any party thereto.



Section 4.10 Condition of Tangible Assets Except as set forth in Schedule 4.10 hereto, all
material items of tangible property and assets which comprise the Transferred Assets contain no
material defects and are in good operating condition and repair, subject to normal routine wear and
maintenance, are usable in the regular and ordinary course of business, and conform in their
current condition to all applicable laws, ordinances, codes, rules and regulations, and
authorizations relating to their construction, use and operation, without any need for capital
improvements or other modification or alteration. Except for leased property identified in
Schedule 4.9, no person other than Seller owns any equipment or other tangible assets or properties
necessary to the operation of the Business.


 


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Section 4.11 Accounts Receivable Each of the Accounts Receivables of the CVC Practice
included in the Transferred Assets represents a valid obligation arising from services rendered or
products sold in the ordinary course of business of Seller and was created in compliance with
applicable law. Unless paid prior to Closing, the Accounts Receivables are or will be as of
Closing current and collectible net of the reserves shown on the Interim Balance Sheet. Seller and
all of its collection agents have complied with all laws, rules and regulations with respect to the
Accounts Receivables. None of the Accounts Receivables is subject to any right of offset or
reduction and Seller is the sole beneficial and legal owner of all Accounts Receivables and none
have been assigned to collection agents or otherwise. The Transferred Assets include sufficient
records with respect to the receivables to determine the status of collection efforts and to
enforce collection thereof. Any liabilities arising in connection with the creation of the
receivables or the collection by Seller or its agents of the receivables which arose because of an
act of the Seller or its agents prior to Closing shall remain the liability of Seller.



Section 4.12 Intellectual Property Matters Seller owns trademarks, service marks, trade
names, copyrights, inventions, patents, patent rights, applications for patent rights, similar
rights, trade secrets, know-how, processes, formulas, and designs (“Intellectual Property”) used or
relied upon by the CVC Practice in the conduct of its business and which are included in the
Transferred Assets, each of which are described and set forth with particularity in Schedule 4.12,
other than licensed rights to software identified in such schedule, to which Seller has a valid
licensed interest. Seller has the right to use and holds good and marketable title, free and clear
of all Encumbrances, to each of such items of Intellectual Property described above in this
Section 4.12. Seller has no knowledge of the infringement by any person, firm, associate,
partnership or corporation of any such right of Seller. There is no claim pending or, to Seller’s
knowledge, threatened against Seller with respect to alleged infringement of any trademark, service
mark, trade name or copyright owned by any person related to the CVC Practice. No such Intellectual
Property consisting of trademarks, service marks, trade names and copyrights have been registered
with the United States Patent and Trademark Office or the United States Copyrights Office except as
described on Schedule 4.12, and Seller is currently in compliance with all formal legal
requirements (including the timely post-registration filing of affidavits of use and
incontestability and renewal applications) with respect to such registered Intellectual Property.



Section 4.13 Contracts and Commitments Schedules 1.1(b) and 4.13 list all of the written
or oral Contracts which are included in the Transferred Assets, other than the leases which are
identified on Schedule 4.9. The Contracts include all service agreements, contracts, licenses or
commitments which are material to the business and operations of the CVC Practice, other than the
leases identified on Schedule 4.9. Except as set forth in Schedule 4.13:




(i) All Contracts are valid and in full force and effect, and are transferable and
assignable to Purchaser, which assignment or transfer will not result in any additional cost
or expense on the part of Purchaser;




(ii) Seller is not in material breach or default under or in violation of any Contract;


 


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(iii) Seller is not a party to any written or oral agreement, contract or commitment
with any present or former employee or consultant or for the employment of any person,
including any consultant, who is engaged in the conduct of the CVC Practice;




(iv) Seller is not a party to any written or oral commitment or agreement for any
capital expenditure or leasehold improvement in excess of $10,000 relating to the CVC
Practice, except for such normal operating expenditures of the CVC Practice; and



Seller is not a party to any written or oral agreement, contract or commitment limiting or
restraining the CVC Practice, or any successor thereto from engaging or competing in any manner or
in any business, nor, to Seller’s knowledge, is any employee of the CVC Practice engaged in the
conduct of the CVC Practice subject to any such agreement, contract or commitment.



Section 4.14 Insurance




(a) Seller maintains insurance policies insuring the CVC Practice with financially sound
insurance companies of such types (including, but not limited to, public liability, product and
service liability, worker’s compensation and property damage) and such amounts as are adequate for
the CVC Practice as currently conducted (and as conducted heretofore).



(b) Schedule 4.14 contains (i) an accurate and complete list of all policies of insurance
providing coverage for the CVC Practice, and (ii) a schedule setting forth the aggregate claims and
all individual claims made under each such policy (or any predecessor policy) during the last two
years.



(c) No notice of cancellation (except for those received during renewal periods), termination
or reduction in coverage has been received with respect to any policy listed in Schedule 4.14.
Seller has not been refused any insurance with respect to its assets or operations, nor has its
coverage been limited, by any insurance carrier to which it has applied for any such insurance or
with which it has carried insurance during the last two years that has had or would reasonable be
expected to have a Material Adverse Effect on the CVC Practice.



Section 4.15 Compliance with Laws Except as set forth in Schedule 4.15:




(i) Seller has conducted the CVC Practice and any other activities in accordance in all
material respects with all applicable laws, rules, regulations, judgments, orders and other
requirements of all courts, administrative agencies, or governmental authorities having
jurisdiction over Seller, including, without limitation, applicable laws, rules, regulations
and requirements relating to antitrust, consumer protection, equal opportunity, occupational
safety and health (OSHA), ERISA, Americans with Disabilities Act, employment, Environmental
Law, clean air, labor, wage and hour, pension, welfare and securities matters;




(ii) Seller has not received within the last two years any notification of any asserted
present or past failure by Seller to comply with such laws, rules or regulations that
relates in any way to the CVC Practice;


 


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(iii) Seller has all licenses, certificates of occupancy, permits and other
governmental authorizations or approvals (collectively, “Licenses”) required for the
operation of the CVC Practice and the current use of the properties of the CVC Practice,
each of which are described on Schedule 4.15 hereto, and all such Licenses are valid and in
effect; and




(iv) Seller is not materially in violation of any License, and the consummation of the
transactions contemplated by this Agreement will not result in a violation or termination of
any License.



Section 4.16 Employment Matters




(a) Seller is in compliance with all federal, state and local laws, ordinances and regulations
respecting employment practices, terms and conditions of employment and wages and hours and is not
and has not engaged in any unfair labor practice in respect of the operations of the CVC Practice.
Other than as set forth in Schedule 4.16(a), there is no unfair practice complaint against Seller
pending or, to Seller’s knowledge, threatened, in respect of the operations of the CVC Practice.
Seller does not have any contracts, agreements, pension plans, profit sharing plans, bonus plans,
undertakings or arrangements, whether oral, written or implied with lessees, licensees, employees,
managers, accountants, suppliers, agents, officers, distributors, directors, lawyers, or others
relating to the CVC Practice which cannot be terminated on ninety day’s notice other than those
listed in Schedule 4.16(a).



(b) Schedule 4.16(b) hereto contains a list of all employees of the CVC Practice, their wages,
accrued vacation, and other remuneration of every kind.



(c) Seller is not a party to any collective bargaining agreement with any labor union or other
association of employees and, to the best of Seller’s knowledge, no attempt has been made to
organize or certify the employees of Seller as a bargaining unit affecting the CVC Practice.



(d) Since January 1, 2005, Seller has not been the subject of any inspection or investigation
relating to its compliance with or violation of the Immigration Reform and Control Act of 1986, and
the rules and regulations promulgated thereunder (the “Immigration Laws”), nor has it been fined or
otherwise penalized by reason of any failure to comply with the Immigration Laws, nor, to the
knowledge of Seller, is any such proceeding pending or threatened all in respect of the CVC
Practice.



Section 4.17 Employee Benefit Plans and Arrangements. Schedule 4.17 hereto contains a
complete list of all employee benefit plans, whether formal or informal, whether or not set forth
in writing, and whether covering one person or more than one person, sponsored or maintained by
Seller for the benefit of, or covering the CVC Practice and its employees (“Benefit Plans”). For
the purposes hereof, the term “Benefit Plans” includes all plans, funds, programs, policies,
arrangements, practices, customs and understandings in existence as of the date of the Closing,
for providing ongoing or future benefits of economic value to any employee, former employee, or
present or former beneficiary, dependent or assignee of any such employee or former employee other
than regular salary, wages or commissions paid substantially concurrently with the performance of
the services for which paid. Seller hereby represents to Purchaser that Purchaser shall not assume
any obligations under any Benefit Plan of Seller and shall not incur any liabilities under such
Benefit Plan pursuant to applicable law.


 


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Section 4.18 Litigation Except as set forth in Schedule 4.18, there is no action, suit,
claim, inquiry, proceeding or investigation pending or involving or, to the knowledge of Seller,
threatened against Seller which affects the CVC Practice, or the Transferred Assets, or which
questions or challenges the validity of this Agreement or any action taken or to be taken pursuant
to this Agreement or in connection with the transactions contemplated hereby, and Seller has no
knowledge or reasonable grounds for believing that there is any basis for any such action, suit,
claim, inquiry, proceeding or investigation. Seller is not subject to any judgment, order or
decree entered in any proceeding or investigation which may materially affect the CVC Practice.



Section 4.19 Governmental Consents Except as set forth in Schedule 4.19, no consent,
approval or authorization of, notice to, or declaration, filing or registration with, any
governmental or regulatory authority, domestic or foreign, is required in connection with the
execution, delivery and performance of this Agreement or the consummation of the transactions
contemplated hereby.



Section 4.20 Other Consents Except as set forth in Schedule 4.20, no consent, approval or
authorization of, or notice to, any other person or entity, including, without limitation, parties
to loans, contracts, leases or other agreements, is required in connection with the execution,
delivery and performance of this Agreement by Seller or the consummation by it of the transactions
contemplated hereby.



Section 4.21 Product and Service Warranty Except as set forth on Schedule 4.21 hereto,
each product or service manufactured, sold, leased, provided or delivered, as the case may be, by
the CVC Practice has been in conformity in all material respects with all applicable commitments
and all express and implied warranties. No product or service manufactured, sold, leased, provided
or delivered by the CVC Practice is subject to any express written guaranty, warranty, or other
indemnity which exposes the CVC Practice or Seller to material liability beyond the standard terms
and conditions of sale or lease generally used by the CVC Practice.



Section 4.22 Product and Service Liability Seller has no knowledge of any facts which they
believe could reasonably give rise to any liability arising out of any death or injury to persons
or damage to property as a result of the ownership, possession, maintenance, or use of any product
designed, manufactured, sold, leased, or delivered by the CVC Practice or as a result of any
service provided by the CVC Practice. Seller has errors and omissions insurance coverage, subject
to customary deductions and exclusions as provided in the policies made available to Purchaser, for
error and omission exposure which occur prior to or on the date of Closing.



Section 4.23 Customers, Suppliers and Sales Representatives Schedule 4.23 hereto sets
forth a list of (a) the 5 largest customers of the CVC Practice in terms of gross sales (and
percentages) during the years ended December 31, 2007 and 2008.


 


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Section 4.24 Guarantees Except as set forth on Schedule 4.24, Seller is not a guarantor or
indemnitor for any liability (including indebtedness) of an affiliate or any other person.



Section 4.25 Brokers or Finders Except as set forth in Schedule 4.25, no agent,
broker, investment banker or other financial firm is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee in connection with the Closing based on
arrangements made by or on behalf of Seller.



Section 4.26 Taxes Except as set forth on Schedule 4.26, all federal, state, county and
local taxes, including, without limitation, income, gross receipts, corporate franchise, stamp,
transfer, sales and use, license, severance, excise, employment (including unemployment
compensation contributions), withholding, ad valorem, or any other similar taxes, special charges
or levies, together with any interest, additions or penalties with respect thereto and any interest
in respect of such additions or penalties (“Taxes”) due and payable by Seller with respect to the
CVC Practice on or before the date hereof have been paid (or Seller has provided for), and Seller
has filed all tax returns and reports required to be filed by Seller with all applicable taxing
authorities (“Tax Returns”) that could affect the CVC Practice or the Business or the Transferred
Assets. The provisions for Taxes included in the Interim Financial Statements represent adequate
provision for the payment of all accrued and unpaid Taxes of Seller that could affect the CVC
Practice or the Business or the Transferred Assets, whether or not disputed. Seller has paid (or
has made provision for the payment of) all Taxes that could form a charge or encumbrance on the
Transferred Assets or the CVC Practice that could become payable by Purchaser as a result of or in
connection with any event relating to Seller occurring before the Closing Date. Seller has no
outstanding or unsatisfied deficiency assessments with respect to any material Taxes, and there are
no current audits or investigations by or disputes with any authority with respect to any Taxes
that may affect Seller or form an Encumbrance on any of the Transferred Assets. Seller has not
received notice that an examination of or proceeding concerning any Tax Return of Seller is pending
or threatened that may affect Seller or form an Encumbrance on any of the Transferred Assets.



Section 4.27 Full Disclosure The representations and warranties of Seller in this
Agreement and in the Schedules hereto are true, complete and correct, and no such representation or
warranty contains any untrue statement of material fact or omits to state any material fact
necessary to make the statements made not misleading.



ARTICLE V.




REPRESENTATIONS AND WARRANTIES OF PURCHASER





Purchaser hereby represents, warrants and covenants to Seller as follows:



Section 5.1 Organization Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.


 


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Section 5.2 Authorization Purchaser has all requisite corporate power and authority
to execute and deliver this Agreement, to consummate the transactions contemplated hereby, and to
perform all the terms and conditions hereof to be performed by it. The execution and delivery of
this Agreement, the performance of all the terms and conditions hereof to be performed by
Purchaser, and the consummation of the transactions contemplated hereby have been duly authorized
and approved by the shareholders of Purchaser. This Agreement has been duly executed and delivered
by Purchaser and constitutes the valid and binding obligation of Purchaser enforceable against it
in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other laws relating to or affecting the enforcement of creditors’ rights generally
and general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).



Section 5.3 No Violation Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (a) violate any provision of the
Certificate of Formation or Articles of Incorporation of Purchaser; (b) violate, conflict with,
constitute a default (or an event which, with or without notice, lapse of time or both, or the
occurrence of any other event, would constitute a default) under, result in the termination of,
accelerate the performance required by, cause the acceleration of the maturity of any debt or
obligation pursuant to any agreement or commitment to which Purchaser is a party or by which
Purchaser is bound, or to which the property of Purchaser is subject, or (c) violate any statute or
law or any judgment, decree, order, regulation or rule of any court or governmental authority.



Section 5.4 Governmental Consents Except as set forth in Schedule 5.4, no consent,
approval or authorization of, notice to, or declaration, filing or registration with, any
governmental or regulatory authority, domestic or foreign, is required in connection with the
execution, delivery and performance of this Agreement by Purchaser or the consummation of the
transactions contemplated hereby by Purchaser.



Section 5.5 Other Consents Except as set forth in Schedule 5.5, no consent, approval or
authorization of, or notice to, any other person or entity, including, without limitation, parties
to loans, contracts, leases or other agreements, is required in connection with the execution,
delivery and performance of this Agreement by Purchaser or the consummation by Purchaser of the
transactions contemplated hereby.



Section 5.6 No Brokers No agent, broker, investment banker or other firm or person is or
will be entitled to any broker’s or finder’s fee or any other commission or similar fee in
connection with the Closing based on arrangements made by or on behalf of Purchaser.



Section 5.7 Insurance




(a) Purchaser maintains insurance policies insuring Purchaser with financially sound insurance
companies of such types (including, but not limited to, errors and omission, director and officers,
public liability, product and service liability, worker’s compensation and property damage) and for
such amounts in Purchaser’s management’s opinion are sufficient and adequate for the operations of
its business as currently conducted and as will be conducted following the Closing of the
transaction contemplated by this Agreement.



(b) Schedule 5.7 contains (i) an accurate and complete list of all policies of insurance
providing coverage for the Purchaser and the amount of coverage of each policy, and (ii) a
schedule setting forth the aggregate claims and all individual claims made under each such
policy (or any predecessor policy) during the last two years.


 


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(c) No notice of cancellation, termination or reduction in coverage has been received with
respect to any policy listed in Schedule 5.7. Purchaser has not been refused any insurance with
respect to its assets or operations, nor has its coverage been limited, by any insurance carrier to
which it has applied for any such insurance or with which it has carried insurance during the last
two years.



Section 5.8 Compliance With the Law




(a) Purchaser has conducted its business in accordance in all material respects with all
applicable laws, rules, regulations, judgments, orders and other requirements of all courts,
administrative agencies, or governmental authorities having jurisdiction over Purchaser, including,
without limitation, applicable laws, rules, regulations and requirements relating to antitrust,
consumer protection, equal opportunity, occupational safety and health (OSHA), ERISA, Americans
with Disabilities Act, employment, labor, wage and hour, pension, welfare and securities matters;



(b) Purchaser has not received within the last two years any notification of any asserted
present or past failure by Purchaser to comply with such laws, rules or regulations that relates in
any way to its business.



Section 5.9 Litigation Except as set forth in Schedule 5.9, there is no action, suit,
claim, inquiry, proceeding or investigation pending or involving or, to the knowledge of Purchaser,
threatened against Purchaser which affects Purchaser’s business, or which questions or challenges
or could question or challenge the validity of this Agreement or any action taken or to be taken
pursuant to this Agreement or in connection with the transactions contemplated hereby, and
Purchaser has no knowledge or reasonable grounds for believing that there is any basis for any such
action, suit, claim, inquiry, proceeding or, to Purchaser’s knowledge, investigation. Purchaser is
not subject to any judgment, order or decree entered in any proceeding or investigation which may
materially adversely affect its business as being conducted or as will be conducted following the
Closing of the transactions contemplated by this Agreement.



Section 5.10 Full Disclosure The representations and warranties of Purchaser in this
Agreement and in the Schedules hereto are true, complete and correct, and no such representation or
warranty contains any untrue statement of material fact or omits to state any material fact
necessary to make the statements made not misleading.



ARTICLE VI.


CERTAIN COVENANTS OF SELLER





Seller hereby covenants to and agrees with Purchaser as follows:



Section 6.1 Satisfaction of Conditions Seller shall use reasonable good faith efforts to
satisfy or cause the satisfaction of the conditions specified in Article IX hereof.


 


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ARTICLE VII.




CERTAIN COVENANTS OF PURCHASER





Purchaser hereby covenants to and agrees with Seller as follows:



Section 7.1 Satisfaction of Conditions Purchaser shall use reasonable good faith efforts
to satisfy or cause the satisfaction of the conditions specified in Article X hereof.



ARTICLE VIII.




ADDITIONAL COVENANTS AND AGREEMENTS




Section 8.1 Payment of Taxes and Certain Expenses




(a) Purchaser shall pay any sales, use, recording costs or similar fees payable in connection
with the conveyance of the Transferred Assets contemplated by this Agreement.



(b) Except as otherwise explicitly provided herein, whether or not the transactions
contemplated by this Agreement are consummated, each of the parties hereto shall pay its own
expenses and costs, including legal and accounting fees, incurred by it in connection with the
negotiation, execution and performance of this Agreement.



Section 8.2 Noncompetition; Nonsolicitation; Nondisclosure




(a) Seller agrees that for a period of three (3) years after the date of Closing, neither it
nor any of its affiliated entities will, directly or indirectly, (i) own, manage, operate, join,
control or participate in the ownership, management, operation or control of, or render service to,
any business, whether in corporate, proprietorship or partnership form or otherwise, which is
competitive with the CVC Practice within the “Restricted Territory” (defined below); (ii) either
for its own benefit or for the benefit or purposes of any other person or entity, solicit, call on,
interfere with, attempt to divert, entice away or accept any business from any person or entity who
is a customer of the CVC Practice or who was a customer of the CVC Practice within the two (2)
years preceding the date of Closing; or (iii) take any action that may cause Purchaser to lose any
of its officers, employees, agents, customers or suppliers or any of its business relationships;
provided that nothing herein shall be construed to prevent Seller from purchasing or otherwise
acquiring up to five percent (5%) of the securities of any enterprise if such securities are listed
on any national or regional securities exchange. For purposes of this Section 5.3(a), “Restricted
Territory” means the geographic area encompassing the United States and any other country in which
Seller has distributed or sold CVC Practice products or services within two (2) years preceding the
date of the Closing.



(b) Each Party agrees that for a period of two (2) years after the date of Closing neither it
nor any of their affiliated entities will, with the intent of securing any business from the
customers described in this Section 8.2(b) that materially competes with the other Party’s primary
business, directly or indirectly, either for its own benefit or for the benefit or purposes of any
other person or entity, solicit, call on, interfere with, attempt to divert, entice away or accept
any competitive business from any person or entity who is a customer of the other Party or who
was a customer of the other Party within the two (2) years preceding the date of Closing; or
take any action that may cause the other Party to lose any of its officers, employees, agents,
customers or suppliers or any of its business relationships.


 


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(c) From and after the date of Closing, Seller will not, directly or indirectly, disclose to
any other party or in any way utilize for itself or any other party any information, data,
proprietary information, intellectual property, trade secrets, customer lists, subscriber lists,
pricing information or any other proprietary information purchased pursuant to this Agreement, used
in the operation of the CVC Practice, or otherwise relating to it.



(d) The parties hereto specifically acknowledge and agree that the remedy at law for any
breach of the foregoing will be inadequate and that Purchaser, in addition to any other relief
available to it, shall be entitled to temporary and permanent injunctive relief without the
necessity of proving actual damage.



(e) In the event that the provisions of this Section 8.2 should ever be deemed to exceed the
limitation provided by applicable law, then the parties hereto agree that such provisions shall be
reformed to set forth the maximum limitations permitted.



Section 8.3 Mail Received After Closing Following the Closing, Purchaser may receive and
open all mail or other communications addressed to Seller relating to the CVC Practice and deal
with the contents thereof in its discretion to the extent that such mail relates to the CVC
Practice; provided that (a) Purchaser shall have no right to deal with the contents of any other
such material which relates to the business of Seller not being purchased and/or assumed by
Purchaser under this Agreement, and (b) Purchaser shall promptly notify Seller as to the receipt
thereof and make appropriate arrangements to deliver such materials promptly to Seller.



Section 8.4 Cooperation and Records Retention




(a) Purchaser and Seller shall in a timely manner (i) each provide the other with such
assistance as may reasonably be requested by any of them in connection with the preparation of any
return, audit or other examination by any taxing authority or judicial or administrative proceeding
relating to liability for taxes, (ii) each retain and provide the other any records or other
information that may be relevant to such return, audit or examination, proceeding, or
determination, and (iii) each provide the other with any final determination of any such audit or
examination proceeding, or determination that affects any amount required to be shown on any return
of the other for any period. Without limiting the generality of the foregoing, Seller and
Purchaser shall retain, until the applicable statutes of limitations (including any extensions)
have expired, but in no event later than the seventh anniversary of the date of Closing, copies of
all returns, supporting work schedules, and other records or information that may be relevant to
such returns for all tax periods or portions thereof ending before or including the date of Closing
and shall not destroy or otherwise dispose of any such records, prior to such periods, without
first providing the other party with a reasonable opportunity to review and copy the same.


 


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(b) Purchaser agrees that for a period of two (2) year from the date of Closing, it will
maintain Seller’s books, records, manuals, ledgers and other documentation used or maintained in
the operation of the CVC Practice which are being transferred to Purchaser pursuant to this
Agreement and, during such period, will afford to Seller and its authorized representatives,
at Seller’s sole expense, risk and cost and upon reasonable notice to Purchaser, reasonable access
during normal business hours and under Purchaser’s supervision, to such books, records, etc. on
Purchaser’s premises, to the extent that such access and disclosure would not unreasonably
interfere with the normal operation of the business of Purchaser or violate the terms of any
agreement to which Purchaser is bound or any applicable laws or regulations. Thereafter, in the
event Purchaser chooses not to keep such books and records, it will give Seller reasonable
opportunity to take delivery of such books and records.



Section 8.5 Offers of Employment After the Closing, Purchaser may, in its sole discretion,
make an offer of employment to any or all of the employees of the CVC Practice. Nothing in this
section shall be deemed to guarantee a right of employment to any particular individual or upon any
specific terms or conditions of employment. Seller agrees to terminate all employment contracts
with employees of the CVC Practice that are to be hired by Purchaser after the CVC Practice has
been notified that the employee has accepted Purchaser’s offer of employment pursuant to the terms
thereof.



Section 8.6 Further Assurances After the Closing, each of Seller and Purchaser will from
time to time, at the request of the other and without further cost or expense to requesting party,
execute, acknowledge, deliver and perform such other instruments of conveyance and transfer, and
take such other actions as the other party may reasonably request, to implement the transactions
contemplated hereby and to vest in Purchaser good and marketable title to the Transferred Assets
(including, without limitation, assistance in the collection or reduction to possession of any of
such Transferred Assets).



ARTICLE IX.




CONDITIONS TO THE OBLIGATIONS OF PURCHASER




All obligations of Purchaser under this Agreement are subject to the fulfillment or
satisfaction, prior to or at the Closing, of each of the following conditions precedent:



Section 9.1 Representations and Warranties True The representations and warranties of
Seller contained in this Agreement and the Schedules hereto shall be true and accurate in all
material respects as of the date hereof and as of Closing.



Section 9.2 Compliance with this Agreement Seller shall have performed and complied with
all agreements and conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing.



Section 9.3 Documents to be Delivered





(a) At or prior to Closing, Purchaser shall have received from Seller:




(i) a certificate of Seller, dated as of the date of Closing, certifying in such detail
as Purchaser may reasonably request that the conditions specified in Sections 9.1 and 9.2
hereof have been fulfilled and certifying that Seller has obtained all consents and
approvals required with respect to it, the Business or the transactions contemplated
hereby, including those which are listed on Schedules 4.19 and 4.20 hereof;


 


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(ii) all deeds, bills of sale, assignments and assumptions and other documents of
conveyance, in form and substance satisfactory to Purchaser and its counsel, necessary to
convey the Transferred Assets and assume the Assumed Liabilities;




(iii) except with respect to the Assumed Liabilities, to the extent any of the
Transferred Assets are encumbered, Seller shall have obtained releases of such encumbrances,
which releases shall be in form and substance acceptable to Purchaser and its counsel; and




(iv) a certificate of Seller, dated as of the date of Closing, certifying as to
resolutions adopted by Seller’s Board of Directors approving of the Agreement and this
transaction, the encumbancy of those persons signing on behalf of Seller and the
organization of Seller;




(v) all other previously undelivered items required to be delivered by Seller to
Purchaser at or prior to Closing pursuant to this Agreement or otherwise.




(b) Purchaser shall have received the executed and delivered Transition Services Agreement.



(c) Purchaser shall have received acceptable written evidence of termination of all employment
contracts with employees that Purchaser has offered employment to and who have notified Purchaser
that they will be accepting their offer of employment.



Section 9.4 Consents, Releases and Approvals The holders of any indebtedness of Seller,
the lessors or lessees of any real or personal property or assets leased by Seller, the parties
(other than Seller) to any contract, commitment or agreement to which Seller is a party or subject,
and any governmental, judicial or regulatory official, body or authority having jurisdiction over
Seller or Purchaser to the extent that their consent or approval is required or necessary under the
pertinent debt, lease, contract, commitment or agreement or other document or instrument or under
applicable orders, laws, rules or regulations, for the consummation of the transactions
contemplated hereby in the manner herein provided, shall have granted such consent or approval,
including those which are listed on Schedules 4.19 and 4.20 hereof.



Section 9.5 No Injunctions There shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court of competent jurisdiction
prohibiting or imposing any condition on the consummation of any of the transactions contemplated
hereby.



Section 9.6 Material Adverse Changes The business, operations, assets, properties or
prospects of the Business shall not have been and shall not be threatened to be materially
adversely affected in any way as a result of any event or occurrence after the date of this
Agreement.


 


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ARTICLE X.




CONDITIONS TO THE OBLIGATIONS OF SELLER




All obligations of Seller under this Agreement are subject to the fulfillment or satisfaction,
prior to or at the Closing, of each of the following conditions precedent:



Section 10.1 Representations and Warranties True The representations and warranties of
Purchaser contained in this Agreement shall be true and accurate in all material respects as of the
date hereof and as of Closing.



Section 10.2 Compliance with this Agreement Purchaser shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or complied with by
it prior to or at the Closing.



Section 10.3 Payment of Purchase Price Purchaser shall pay the Purchase Price in
accordance to the terms of Section 1.5.



Section 10.4 Documents to be Delivered At or prior to Closing, Seller shall have received
from Purchaser:




(i) a certificate of Purchaser, dated as of the date of Closing, certifying in such
detail as Seller may reasonably request that the conditions specified in Sections 10.1, 10.2
and 10.3 hereof have been fulfilled and certifying that Purchaser has obtained all consents
and approvals required with respect to the transactions contemplated hereby which are listed
on Schedules 5.4 and 5.5 hereof;




(ii) a certificate of Purchaser, dated as of the date of Closing, certifying: that the
Agreement has been adopted pursuant to the Company’s Operating Agreement; the resolutions
adopted by Purchaser’s members approving of the Agreement and this transaction; the
encumbancy of those persons signing on behalf of Purchaser and the organization of
Purchaser; and




(iii) a waiver release from Owens Corning, a CVC Practice client; and




(iv) all other previously undelivered items required to be delivered by Purchaser at or
prior to Closing pursuant to this Agreement or otherwise.



Section 10.5 No Injunction There shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court of competent jurisdiction
prohibiting or imposing any condition on the consummation of any of the transactions contemplated
hereby.


 


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ARTICLE XI.




SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION




Section 11.1 Survival of Representations and Warranties All representations and warranties
made by the parties in this Agreement or in any certificate, schedule, statement, document or
instrument furnished hereunder or in connection with the negotiation, execution and performance of
this Agreement shall survive the Closing for a period of three (3) years, except that any
representation or warranty relating to fraud, title to the Transferred Assets, environmental
matters and Environmental Laws or taxes shall extend until the expiration of the applicable statute
of limitations. Notwithstanding any investigation or audit conducted before or after the date of
Closing or the decision of any party to complete the Closing, each party shall be entitled to rely
upon the representations and warranties set forth herein and therein.



Section 11.2 Indemnification by Seller From and after the Closing, Seller jointly and
severally, will reimburse, indemnify and hold harmless Purchaser and its successors, assigns,
shareholders, officers, directors, employees or agents (the “Indemnified Purchaser Parties”)
against and in respect of:




(i) any and all damages, losses, deficiencies, liabilities, costs and expenses incurred
or suffered by the Indemnified Purchaser Parties that result from, relate to or arise out
of:




(A) any and all liabilities and obligations of Seller of any nature whatsoever,
except for the Assumed Liabilities;




(B) any and all actions, suits, claims, or legal, administrative, arbitration,
governmental or other proceedings or investigations against any Indemnified
Purchaser Parties or any affiliate of Purchaser that relate to Seller or the
Business in which the principal event giving rise thereto occurred prior to the date
of Closing or which result from or arise out of any action or inaction occurring
prior to the date of Closing of Seller by any director, officer, employee, agent,
representative or subcontractor of Seller, including without limitation those
matters set forth on Schedule 4.18, but not including the Assumed Liabilities; or




(C) any misrepresentations, breach of warranty or nonfulfillment of any
agreement or covenant on the part of Seller under this Agreement, or from any
misrepresentation in or omission from any certificate, schedule, statement, document
or instrument furnished to Purchaser pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement; and


 


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(ii) any and all actions, suits, claims, proceedings, investigations, demands,
assessments, audits, fines, judgments, costs and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to any of the foregoing or to the
enforcement of this Section 11.2.



Section 11.3 Indemnification by Purchaser From and after the Closing, Purchaser will
reimburse, indemnify and hold harmless Seller and its successors, assigns, officers, directors,
employees and agents and their heirs and representatives (the “Indemnified Seller Parties”) against
and in respect of:




(i) any and all damages, losses, deficiencies, liabilities, costs and expenses incurred
or suffered by the Indemnified Seller Parties that result from, relate to or arise out of:




(A) any and all obligations of the Purchaser of any nature whatsoever,
including the Assumed Liabilities;




(B) any and all actions, suits, claims, or legal, administrative, arbitration,
governmental or other proceedings or investigations against any of the indemnified
Seller Parties that relate to Purchaser in which the principal event giving rise
thereto occurred on or after the date of Closing or which result from or arise out
of any action or inaction on or after the date of Closing of Purchaser by any
director, officer, employee, agent, representative or subcontractor of Purchaser; or




(C) any misrepresentation, breach of warranty or nonfulfillment of any
agreement or covenant on the part of Purchaser under this Agreement, or from any
misrepresentation in or omission from any certificate, schedule, statement, document
or instrument furnished to Seller pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement; and




(ii) any and all actions, suits, claims, proceedings, investigations, demands,
assessments, audits, fines, judgments, costs and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to any of the foregoing or to the
enforcement of this Section 11.3.



Section 11.4 Limitation on Amount




(a) In no event shall Seller be liable for aggregate amounts for which indemnification is
claimed by Purchaser in accordance with Section 11.2 (including attorneys’ fees) of more than the
Purchase Price.



(b) In no event shall Purchaser be liable for aggregate amounts for which indemnification is
claimed by Seller in accordance with Section 11.3 (including attorneys’ fees) of more than the
Purchase Price.


 


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Section 11.5 Notice of Claims




(a) Claims by Third Parties Promptly after receipt by an indemnified party of written
notice of the commencement of any investigation, claim, proceeding or other action in respect of
which indemnity may be sought from the indemnitor under either Section 11.2 or 11.3 (each, an
“Action”), such indemnified party shall immediately notify the indemnitor in writing of the
commencement of such Action; but the omission to so notify the indemnitor shall not relieve it from
any liability that it may otherwise have to such indemnified party, except to the extent that the
indemnitor is materially prejudiced or forfeits substantive rights or defenses as a result of
such failure. In connection with any Action in which the indemnitor and any indemnified party
are parties, the indemnitor shall be entitled to participate therein, and may assume the defense
thereof. Notwithstanding the assumption of the defense of any such Action by the indemnitor, each
indemnified party shall have the right to employ separate counsel and to participate in the defense
of such Action, and the indemnitor shall bear the reasonable fees, costs and expenses of such
separate counsel to such indemnified party if: (i) the indemnitor shall have agreed to the
retention of such separate counsel, (ii) the defendants in, or target of, any such Action include
more than one indemnified party or both an indemnified party and the indemnitor shall have
concluded that representation of such indemnified party by the same counsel would be inappropriate
due to actual or, as reasonably determined by such indemnified party’s counsel, potential differing
interests between them in the conduct of the defense of such Action, or if there may be legal
defenses available to such indemnified party that are different from or additional to those
available to the other indemnified party or to the indemnitor, or (iii) the indemnitor shall have
failed to employ counsel reasonably satisfactory to such indemnified party within a reasonable
period of time after notice of the institution of such Action. If such indemnified party retains
separate counsel in cases other than as described in clauses (i), (ii), or (iii) above, such
counsel shall be retained at the expenses of such indemnified party. Except as provided above, it
is hereby agreed and understood that the indemnitor shall not, in connection with any Action in the
same jurisdiction, be liable for the fees and expenses of more than one counsel for all such
indemnified parties (together with appropriate local counsel). The party from whom indemnification
is sought shall not, without the written consent of the party seeking indemnification (which
consent shall not be unreasonably withheld), settle or compromise any claim or consent to entry of
any judgment that does not include an unconditional release of the party seeking indemnification
from all liabilities with respect to such claim.



(b) Other Claims In the event one party hereunder should have a claim for
indemnification that does not involve a claim or demand being asserted by a third party, the party
seeking indemnification shall promptly send notice of such claim to the party from whom
indemnification is sought.



ARTICLE XII.




MISCELLANEOUS PROVISIONS




Section 12.1 Amendment This Agreement may be amended only by a written agreement signed by
the parties.



Section 12.2 Waiver of Compliance Any waiver of any failure to comply with any obligation,
covenant, agreement or condition under this Agreement must be in writing and signed by the parties.
Any waiver or failure to insist upon strict compliance with any obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.


 


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Section 12.3 Notices All notices, requests, demands and other communications required or
permitted hereunder shall be provided in writing and shall be deemed to have been duly given if
delivered by hand or sent by telefacsimile (with confirmation by telefacsimile answerback) or
certified or registered mail, with postage prepaid:




	 	(i)	 	If to Seller, to:



Technology Solutions Company

Attn: Chief Financial Officer

55 E. Monroe Street, #2600

Chicago, IL 60603

	 
	 	 	 	with a copy to:

	 
	 	 	 	Technology Solutions Company

Attn: Chief Executive Officer

55 E. Monroe Street, #2600

Chicago, IL 60603






or to such other person or address as Seller shall furnish to Purchaser in writing.




	 	(ii)	 	If to Purchaser, to:

	 
	 	 	 	Valkre Solutions, Inc.

Attention: Jerry Alderman

Chief Executive Officer

55 E. Monroe Street, #2600

Chicago, IL 60603






or to such other person or address as Purchaser shall notify all other parties in writing.



Section 12.4 Specific Performance Each of the parties acknowledges that money damages
would not be a sufficient remedy for any breach of this Agreement and that irreparable harm would
result if this Agreement were not specifically enforced. Therefore, the rights and obligations of
the parties under this Agreement shall be enforceable by a decree of specific performance issued by
any court of competent jurisdiction, and appropriate injunctive relief may be applied for and
granted in connection therewith. A party’s right to specific performance shall be in addition to
all other legal or equitable remedies available to such party.



Section 12.5 Expenses Except as otherwise expressly provided herein, whether or not the
transactions contemplated by this Agreement shall be consummated, all fees and expenses (including
all fees of counsel and accountants) incurred by any party in connection with the negotiation and
execution of this Agreement shall be borne by such party.



Section 12.6 Severability If any one or more provisions contained in this Agreement shall,
for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision of this Agreement, but this
Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.


 


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Section 12.7 Assignment Neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by any of the parties hereto without the prior written
consent of the other parties. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns.



Section 12.8 Dispute Resolution Intent The parties shall resolve their disputes
informally to the maximum extent possible. The parties shall negotiate all matters of joint
concern in good faith, with the intention of resolving issues between them in a mutually
satisfactory manner. Only disputes within the scope of this Agreement are subject to this Section.
The cost of any such dispute resolution, whether formal or informal, incurred by either party
shall be borne by such party.



(a) Informal Resolution If a dispute arises under this Agreement, then within five (5)
business days after request by either party, the Parties’ executive officer shall promptly confer
to resolve the dispute. If these representatives are unable to resolve the dispute within fourteen
(14) calendar days after the parties have commenced such discussion or thirty (30) calendar days
have passed since the initial request, then the parties may mutually agree to resolve the issues by
Formal Resolution.



(b) Formal Resolution Purchaser and Seller agree that the unresolved disputes will be
resolved by an arbitrator selected from the American Arbitration Association (“AAA”) utilizing AAA
rules (including AAA rules for the selection of the arbitrator should the parties fail to agree on
the arbitrator within fifteen (15) days after the ten (10) day period set forth above). The
arbitration session shall occur in Chicago, Illinois. Statements, discussions, representations and
offers made at the arbitration session shall not be admissible in any later proceeding. The
decision of the arbitrator shall be final and binding upon the parties both as to law and fact.



Section 12.9 Governing Law This Agreement and the legal relations among the parties hereto
shall be governed by and construed in accordance with the laws of the State of Illinois.



Section 12.10 Counterparts This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.



Section 12.11 Headings The headings of the Articles and Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect in any way the
meaning or interpretation of this Agreement.



Section 12.12 Entire Agreement This Agreement, including the Schedules hereto, as well as
the other documents and certificates delivered pursuant hereto set forth the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof, and supersede all
prior agreements, promises, covenants, arrangements, communications, representations or warranties,
whether oral or written, by any officer, employee or representative of any party hereto.


 


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Section 12.13 Third Parties Except as specifically set forth or referred to herein,
nothing expressed or implied herein is intended or shall be construed to confer upon or give to any
person or entity other than the parties hereto, and their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.



Section 12.14 Performance Following Closing Nothing in this Agreement shall be construed
to limit any covenant or agreement of the parties hereto which by its terms contemplates
performance after the Closing.



Section 12.15 Certain Definitions




(a) “Seller’s Knowledge” and similar phrases mean all information actually known by
Seller’s executive officers directly.



(b) “Material Adverse Effect” means any change in or effect on the business that,
individually or in the aggregate (taking into account all other such changes or effects), is
materially adverse to the business, assets, liabilities, condition (financial or otherwise) or
results of operations of the business.



Section 12.16 Source Code Escrow If Purchaser or its successor corporation which assumes
its obligations under this Agreement fails to meet its payment obligations in accordance with
Section 1.5 or ceases to transact business prior to fulfilling its payment obligation in accordance
with Section 1.5 then Purchaser, its trustees, receivers, or agents shall deliver to Seller
promptly upon Seller’s demand all program source codes, documentation, and descriptions of the
Software assets indentified in Schedule 1.1(a) (“Source Code”). Delivery shall in no case occur
more than fourteen (14) days after receipt of Seller’s written demand. Notwithstanding any other
terms to the contrary within the Agreement, in the event of a release of the Source Code to Seller,
Seller shall have complete ownership rights in such Source Code and Purchaser shall forego any
rights and claims whatsoever to such Source Code, until such obligation is fulfilled. Purchaser
represent, within forty-five (45) days of this Agreement, that it has executed a written escrow
agreement (“Escrow Agreement”) with an independent escrow agent (“Escrow Agent”) regarding escrow
of the Source Code. Upon execution of such escrow agreement, Purchaser will, at Purchaser’s sole
expense, deposit the Source Code with the Escrow Agent, and Purchaser shall maintain such Source
Code, and update the Source Code escrow deposits, until such time as Purchaser’s obligations are
met with Section 1.5. Purchaser’s agreement to maintain and update the escrow is a material
provision of this Agreement. Additionally, Purchaser shall take those steps necessary to add
Seller as a beneficiary to the Escrow Agreement. Purchaser shall be responsible for payment of the
fees applicable to adding and maintaining Seller as a beneficiary. This Section 12.16 alone shall
expire upon Purchaser’s fulfillment of its payment obligation in accordance with Section 1.5.


 


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



	 	 	 	 	 
	SELLER:	 	 
	 
	 	 	 	 
	TECHNOLOGY SOLUTIONS COMPANY	 	 
	 
	 	 	 	 
	By:  
	 	 	 	 
	 	Name:  

	 

	 	 
	 	Title:

	 

	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	PURCHASER:	 	 
	 
	 	 	 	 
	VALKRE SOLUTIONS,
INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 	Name:

	 

	 	 
	 	Title:

	 

	 	 
	 

	 	 	 	 







 


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