MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT

 

(j)     "Indebtedness" shall mean, with respect  to any Entity,  (i) every liability of such Entity (excluding,  in the case of a  consolidating  Entity, Intercompany  accounts)  for borrowed money,  for reimbursement  of amounts drawn under letters  of credit, bankers'  acceptances or similar  facilities issued  for the  account  of such   Entity,  for  notes  issued  or assumed  as the deferred purchase price  of property or services (excluding  accounts payable), for debts  relating to a capitalized lease obligation, for all debt attributable to sale/leaseback  transactions of such Entity; and (ii) every liability of  others of the kind described in the preceding clause (i) that such  Entity has guaranteed or which Is otherwise a legal liability of  that Entity.

 

 

(k)    "Intellectual Property" shall mean all domestic or foreign rights in, to and concerning: (i) inventions and discoveries (whether patented, patentable or unpatentable and whether or not reduced to practice), including ideas, research and  techniques, technical designs, and specifications (written or otherwise), improvements, modifications, adaptations, and derivations there to, and patents, patent applications, inventor's certificates, and patent disclosures, together with divisions, continuations, continuations-in-part, revisions, reissuances and reexaminations thereof; (ii) trademarks, service marks, brand names, certification marks, collective marks, d/b/a's, trade dress, logos, symbols, trade names, assumed names, fictitious names, corporate names and other  indications or indicia of origin, including translations, adaptations, derivations, modifications, combinations and renewals thereof; (iii) published and unpublished works of authorship, whether copyrightable or not (including databases and other compilations of data  or information), copyrights therein and thereto, moral rights, and rights equivalent thereto, including but not limited to, the rights of attribution, assignation and integrity; (iv) trade  secrets, confidential and/or proprietary information, including Ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, schematics, designs, discoveries, drawings, prototypes, specifications, hardware  configurations, customer and supplier lists, financial information, pricing and cost information, financial projections, and business and marketing methods plans and proposals;(v) computer software, including programs, applications, source and object code, data bases, data, models, algorithms, flowcharts, tables and documentation related to the foregoing; (vi) other similar tangible or intangible intellectual property or proprietary rights, information and technology and copies and tangible embodiments thereof (in whatever form or medium); (vii) all applications to register, registrations, restorations, reversions and renewals or extensions of the foregoing; (viii) Internet domain names; and (ix) all the goodwill associated with each of the foregoing and symbolized thereby;(x) URL's; (xi) toll free numbers; and (xii) all other intellectual property or proprietary rights and claims or causes of action arising out of or related to any infringement, misappropriation or other violation of any of the foregoing, including rights to recover for past, present and future violations thereof.

 

(l)     "Legal   Proceeding"  shall   mean  any   private   or  governmental  action,  suit, complaint, arbitration, mediation, legal or administrative proceeding or investigation pending or threatened, whether prior to or post closing and whether or not a contingent liability, arising or accruing from actions or activities prior to the Closing Date.

 

 

(o)    "Business Material Adverse Effect" shall mean a Material Adverse Effect on the Business of NBS and ISG, taken as a whole, or a Material Adverse Effect on the ability of NBS and/or ISG to perform its obligations under, and to consummate the transactions contemplated by, this Agreement and the ISG Purchase Agreement, as the case may be.

 

(p)    "Purchase Price" shall mean the consideration payable to the Members pursuant to Section 2.2 hereof.

The purchase price ("Purchase Price") to be paid to the Members by Purchasers for the Members' Interests to be acquired at Closing shall be equal to the difference between twenty million dollars ($20,000,000) and the purchase price for the ISG Assets under the ISG Purchase Agreement (the MISG Purchase Price"), subject to the provisions of Sections 2.4 and 2.5, below; provided that the allocation of the Purchase Price does not have a material adverse impact on Purchaser's results of operations or liquidity. The Purchase Price shall consist of:

Each of the Sellers has all requisite power and authority to enter into this Agreement and to perform its  obligations hereunder and to consummate the Transactions. The execution, delivery and performance by each of the Sellers of this Agreement and the consummation by each of the Sellers of the Transactions have been duly and validly authorized by all necessary actions on the part of the Sellers and/or its members. This Agreement has been duly executed and delivered by each of the Sellers, and is a legal, valid and binding obligation of each of the Sellers, enforceable against each of them in accordance with its terms, except (a) as limited by applicable  bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors' rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by applicable federal or state securities laws.

Kaufman and LK are the sole record and beneficial owners of NBS. Other than Purchasers and Sellers, there  are no other beneficiaries, third party or otherwise, to this Agreement or to the transactions described in this Agreement.

NBS has delivered to Fusion copies of the unaudited combined balance sheets of the Business (NBS and ISG) at December 31, 2009, December 31, 2010 and November 30, 2011, as well as the unaudited income statements  for the years ended December 31,2009 and 2010, and the period ended November 30, 2011 (collectively the ·unaudited Financial Statements ). The Unaudited Financial Statements have been prepared In accordance with past practices and GAAP, and such Unaudited Financial Statements are true, correct and complete, and present fairly and accurately the financial condition and position of NBS, ISG and the Business as of the dates indicated. NBS and ISG maintain books and records sufficient to permit the preparation of accurate and complete financial statements for NBS, ISG and the Business; and the Unaudited Financial Statements have  been prepared from the books and records of NBS, ISG and the Business. NBS and ISG maintain controls and procedures that are sufficient to enable accurate and complete financial statements to be prepared from such books and records. Sellers have no reason to believe that the Unaudited Financial Statements cannot be audited in accordance with GAAP and the rules and regulations of the SEC.

 

4.5   Absence of Undisclosed Liabilities

Except as set forth in Schedule 4.5 or (a) as reflected or reserved against In Unaudited Financial Statements  and (b) for liabilities and obligations incurred since the date of the most recent balance sheet included in the Unaudited Financial Statements in the ordinary course of business consistent with past practice, NBS has no  liabilities or obligations of any nature, whether or not accrued, absolute, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance sheet of NBS (or in the notes thereto) other than those which would not reasonably be expected to have, individually or in the aggregate, a Business Material  Adverse Effect. There is no existing condition, situation or set of circumstances (excluding possible changes in  the Tax laws of any jurisdiction) that could reasonably be expected to result in any such liability, other than liabilities fully and adequately reflected or reserved against on the Unaudited Financial Statements, or incurred since the date of the most recent balance sheet included in the Unaudited Financial Statements in the ordinary course of business consistent with past practice, which in the aggregate are not material to NBS or the Business.   For purposes of this Section 4.5, "material" shall mean any amount in excess of $10,000.

4.6    No Material Adverse Change

Since the date of the Unaudited Financial Statements, there have been no material changes in the assets, properties, business, operations, prospects or condition (financial or otherwise) of NBS or the Business that could reasonably be foreseen to have a Business Material Adverse Effect, nor do any of the Sellers know of any such change that is reasonably likely to occur, nor has there been any damage, destruction or loss materially and adversely affecting the assets, properties, business, operations, prospects or condition of NBS or the Business, whether or not covered by insurance.

4.7    Accounts and Notes Receivable

All accounts and notes receivable reflected in the Unaudited Financial Statements and all accounts receivable arising after the date of the most recent balance sheet included in the Unaudited Financial Statements  (collectively, the "Post Balance Sheet Accounts Receivable") have arisen In the ordinary course of business, represent valid and enforceable obligations due to NBS or the Business, and are not subject to any discount, set-off or counter-claim. All such Post Balance Sheet Accounts Receivable have been collected or, to the best  knowledge of Sellers, are fully collectible in the ordinary course of business in the aggregate recorded amounts thereof, except as reserved in the most recent balance sheet Included in the Unaudited Financial Statements.

4.8    Tax Matters

(a)    NBS has timely filed or caused to be filed (taking into account any extension of time within which to file) since its inception all material Tax Returns required to have been filed by it and all such Tax Returns are true, correct and complete. NBS has paid all Taxes that have or may have become due pursuant to those Tax Returns or otherwise or pursuant to any assessment received by NBS.

(b)    For federal and state Income tax purposes, NBS is an LLC which is treated as a partnership, and its income  or loss is included in the income tax returns of the Members, according to their respective interests. The United States federal and state income tax returns of the Members have never been audited by the IRS or relevant  state tax authorities, insofar as they include income or loss attributed to NBS, nor are they the subject of any pending audit.

(c)    All material amounts of Taxes that NBS is required by law to withhold or collect have been duly withheld   or collected, and have been timely paid over to the proper governmental authorities to the extent due and payable.

(d)    NBS has not been delinquent in the payment of any material Tax that has not been accrued for In the  Unaudited Financial Statements for the period for which such Tax relates nor is there any material Tax deficiency outstanding, proposed, or assessed against NBS or the Business, nor has NBS executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.

(e)    NBS has not incurred any liability for Taxes since the date of the most recent balance sheet included in the Unaudited Financial Statements other than in the ordinary course of business consistent with past practice.

(f)     NBS has not received written notice from any Governmental Entity that a deficiency, delinquency, claim, audit, suit, proceeding, request for information or investigation is now pending, outstanding or, to the knowledge of any Seller, threatened against or with respect to NBS, the Business or Taxes. There are no Liens for Taxes on any of the assets of NBS. Within the preceding four years, no claim has been made in writing by a Governmental Entity of a jurisdiction where NBS has not filed Tax Returns that NBS is or may be subject to taxation by that jurisdiction.

(g)    NBS (i) is not a party to or bound by any Tax allocation, indemnification, sharing or similar agreement or owes any amount under any such agreement or arrangement (excluding customary agreements to indemnify  lenders in respect of Taxes and customary indemnity provisions in agreements for the acquisition or divestiture of assets) or (ii) is or could be liable for any Tax of any person under Section 1.1502-6 of the Treasury  regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code") (or any similar provision of state, local or foreign Law) by virtue of membership in any affiliated, consolidated, combined or unitary group (other than a group the common parent of which was Parent), or as a transferee or successor, or by contract.

(h)    NBS (i) has not filed any extension of time within which to file any Tax Returns that have not been filed (except for extensions of time to file Tax Returns other than income Tax Returns or gross receipts Tax Returns, which extensions were obtained in the ordinary course), (ii) has not granted any power of attorney that is in force with respect to any matters relating to any Taxes, (iii) has not proposed to enter into an agreement   relating to Taxes with a Governmental Entity, which proposals pending or (iv) has not, since December 31, 2007, been issued any private letter ruling, technical advice memorandum or other similar agreement or ruling from a Governmental Entity with respect to Taxes.

(c)    To the knowledge of the Sellers, in the past three years, (I) no Governmental Entity has threatened or initiated any material complaints, charges, lawsuits, grievances, claims, arbitrations, administrative proceedings or other proceeding(s) or investigation(s) with respect to NBS or the Business arising out of, in connection with, or otherwise relating to any Company Employees or any Laws governing labor or employment and (ii) no Governmental Entity has issued or, to the Sellers' knowledge, threatened to issue any significant citation,  order, judgment, fine or decree against NBS or the Business with respect to any Company Employees or any Laws governing labor or employment.

(d)    The execution of this Agreement and the consummation of the Transactions will not result in any material breach or violation of, or cause any payment to be made under, any collective bargaining agreement, employment agreement, consulting agreement or any other employment-related agreement to which the Company or the Business is a party.

4.21         Environmental Laws and Regulations

(a)    Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect:

(i)     there is no pending or, to the knowledge of the Sellers, threatened in writing, claim, lawsuit, investigation or administrative proceeding against NBS or the Business, under or pursuant to any Environmental Law, and neither NBS nor the Business has received written notice from any person, including any Governmental Entity, (A) alleging that NBS or the Business has been or is in violation or potentially in violation of any applicable  Environmental Law or otherwise may be liable under any applicable Environmental Law, which violation or liability is unresolved or (B) requesting information with respect to matters that could result In a claim of liability pursuant to applicable Environmental Law;

(ii)    NBS and the Business are and have been in compliance with all applicable Environmental Laws and with all permits, licenses and approvals required under Environmental Laws for the conduct of their business or the operation of their facilities;

(iii)   NBS and the Business have all permits, licenses and approvals required for the operation of the businesses  and the operation of their facilities pursuant to applicable Environmental Law, all such permits, licenses and  approvals are in effect and, to the knowledge of the Sellers, there is no actual or alleged proceeding to revoke, modify or terminate such permits, licenses and approvals;

(iv)  to the knowledge of the Sellers, there has been no release of Hazardous Materials at any real property  currently or formerly owned, leased or operated by NBS or the Business in concentrations or under conditions or circumstances that (A) would reasonably be expected to result in liability to the NBS or the Business under any Environmental Laws or (B) would require reporting, investigation, remediation or other corrective  or  response action by NBS or the Business under any Environmental Law and that has not otherwise been addressed through such reporting, investigation, remediation or other corrective or responsive action by NBS or the Business; and

(v)    Neither NBS nor the Business is party to any order, judgment or decree that imposes any obligations under  any Environmental Law and, to the knowledge of the Sellers, has not, either expressly or by operation of Law, undertaken any such obligations, including any obligation for corrective or remedial action, of any other person.

 

(b)    As used In this Agreement:

(i)     "Environment" means the indoor and outdoor environment, including any ambient air, surface water, drinking water, groundwater, land surface (whether below or above water), subsurface strata, sediment, building, surface, plant or animal life and natural resources.

(ii)    "Environmental Law" means any Law or any binding agreement issued or entered by or with any Governmental Entity relating to; (A) the protection of the Environment, including pollution, contamination, cleanup, preservation, protection and reclamation of the Environment; (B) any exposure to or release or threatened release of any Hazardous Materials, including investigation. assessment, testing, monitoring, containment, removal, remediation and cleanup of any such release or threatened release; (C) the management of any Hazardous Materials, including the use, labeling, processing, disposal, storage, treatment, transport or recycling of any Hazardous Materials and recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Materials; or (D) the presence of Hazardous Materials in any building, physical structure, product or fixture.

(iii)   “Hazardous  Materials" means all substances defined as Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.5,  or defined as such by, or regulated as such under, any Environmental Law, including any regulated pollutant or contaminant (including any constituent, product or by-product thereof), petroleum, asbestos or  asbestos-containing material, polychlorinated biphenyls, lead paint, any hazardous, Industrial or solid waste, and any toxic, radioactive, infectious or hazardous substance, material or agent.

4.22   Personal Property

Except as set forth on Schedule 4.22 and as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, NBS has good title to, or a valid and binding leasehold interest in, all the personal property owned or leased by it, free and clear of all Liens.

4.23   Insurance

Except for failures to maintain insurance that, individually or In the aggregate, have not had and would not reasonably be expected to have a Business Material Adverse Effect;

(a)    NBS maintains insurance coverage with reputable and financially sound insurers. or maintains self-insurance practices, in such amounts and covering such risks associated with the Business as are in accordance with customary industry practice for companies engaged in businesses similar to that of NBS and the Business; and

(b)    each of the insurance policies covering NBS and/or the Business (the "Insurance Policies") is in full force and effect, all premiums due thereon have been paid in full and NBS is in compliance in all material respect with the terms and conditions of such Insurance policies.

 

4.24   Intellectual Property

(a)    Schedule 4.24 contains a true and complete list, as of the date hereof, of all Intellectual Property rights to which NBS or the Business has an interest that are the subject of any issuance, registration, certificate, application or other filing by, to, or with any governmental Authority or authorized private registrar, including registered trademarks. registered copyrights. issued patents, domain  name registrations, and pending  applications for any of the property rights described in the first sentence of the following subsection ("Company Intellectual Property Rights"), and any material unregistered Company Intellectual Property Rights.

(b)    Except as would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect, NBS owns or has a valid right to use all patents, trademarks, trade names, service marks, domain names, copyrights and any applications and registrations therefor, trade secrets, know-how and computer software (collectively, "Intellectual Property Rights") used in connection with and reasonably   necessary for the Business as currently conducted. To the knowledge of the Sellers, neither NBS nor the  Business has infringed, misappropriated or violated in any material respect any Intellectual Property Rights of any third party except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect. To the knowledge of the Sellers, no third party is infringing, misappropriating or violating any Intellectual Property Rights owned or exclusively licensed by NBS or the Business.

4.25   Material Contracts

Except as set forth in Schedule 4.25, as of the date hereof and the Closing Date, neither NBS nor the Business is a party to or bound by any Contract that (i) is a material contract(as such term is defined in Item 601(bX10) of Regulation S-K promulgated by the SEC), (ii) would, after giving effect to the Transactions, limit or restrict NBS or the Business or any successor thereto, from engaging or competing in any line of business or in any geographic area that it currently engages in or that contains exclusivity or non-solicitation provisions with respect to customers, (iii) limits or otherwise restricts the ability of NBS to pay dividends or make distributions  to its stockholders or (iv) provides for the operation or management of any operating assets of NBS or the Business by any person other than NBS or ISG (except as contemplated by this Agreement). Each Contract of the type described in this Section 4.25, whether or not set forth on Schedule 4.25 is referred to herein as a  “Company Material Contract." In addition, any Contract that provides for the payment of $10,000 or more, over the term of the Contract, shall be considered a Company Material Contract. Each Company Material Contract is a valid and binding obligation of NBS or the Business enforceable against it and, to the knowledge of the Sellers, each other party thereto, in accordance with its terms (except that (i) such enforcement may be subject  to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors' rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) and, is in full force and effect, and NBS has performed in all material respects all obligations required to be performed by it to the date hereof under each Company  Material Contract and, to the knowledge of the Sellers, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect. None of the Sellers has knowledge of, or has received written notice of, any violation of or default under (or any condition which with the passage of time or the giving of written notice would cause such a violation of or default under) any Company Material Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that would not, individually  or in the aggregate, reasonably be expected to have a Business Material Adverse Effect.

 

4.26         Provided Information

All written information concerning NBS and the Business that has been prepared by or on behalf of NBS and that has been or will be provided to Purchasers in connection with this Agreement or the Transactions, was or will be, at the time made available, correct in all material respects and did not, at the time made available, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were made.

4.27         Accuracy of Disclosure

As of the date hereof and as of the date of Closing, the representations and warranties of each of the Sellers  herein, the Schedules hereto, all documents and other papers listed therein or required to be delivered pursuant to this Agreement, and all due diligence materials provided by or on behalf of any or all of the Sellers are and shall be true, complete, correct and authentic. No representation or warranty of any of the Sellers contained in this Agreement, and, no document furnished by or on behalf of any of the Sellers pursuant to this Agreement or in connection with the Transactions, contains or will contain an untrue statement of a material fact or omits or will omit to state a material fact required to be stated therein or necessary to make the statements made, in the context in which made, not false or misleading.

Each of the Purchasers is a corporation duly Incorporated, validly existing and in good standing under the laws  of the State of Delaware, has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified or licensed and is in good standing to do business in each jurisdiction in which the properties owned, leased or operated by it or the nature of its activities makes such qualification necessary, except where the failure to so register would not have a Fusion Material Adverse Effect.

Each of the Purchasers has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance by each of the Purchasers of this Agreement and the consummation of the Transactions have been duly and validly authorized by all necessary corporate action on the part of each of the Purchasers. This  Agreement has been duly executed and delivered by each of the Purchasers and is a legal, valid and binding obligation of each of the Purchasers enforceable against it in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors' rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by applicable federal or state securities laws.

 

No agent, broker, investment banker, financial advisor or other entity is or will be entitled, by reason of any agreement, act or statement by Purchasers or their respective officers, employees, consultants or agents, to any financial advisory, broker's, finder's or similar fee or commission, to reimbursement of expenses or to indemnification or contribution in connection with any of the Transactions, and each of the Purchasers hereby indemnify and hold each of the Sellers harmless from and against any and all claims, liabilities or obligations with respect to any such fees, commissions, expenses or claims for indemnification or contribution asserted by any entity on the basis of any act or statement made or alleged to have been made by the Purchasers or their respective officers, employees, consultants or agents.

5.4           No Approvals or Notices Required; No Conflict with Instruments

The execution, delivery and performance of this Agreement and the related agreements by each of the Purchasers will not contravene or violate (a) any existing law, rule or regulation to which either of them is subject, (b) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which Is applicable to either of  the Purchasers, or (c) the Certificate of Incorporation or Bylaws of either of the Purchasers; nor will such execution, delivery or performance violate, be In conflict with or result in the breach (with or without the giving of notice or lapse of time, or both) of any term, condition or provision of, or require the consent of any other party to, any mortgage, Indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which either of the Purchasers is a party or by which either of the Purchasers is otherwise bound. Except as set forth on Schedule 5.4, no authorization, approval or consent, and no registration or filing with, any governmental or regulatory official, body or authority is required in connection with the execution, delivery and performance of this Agreement by either of the Purchasers.

Except as set forth in Schedule 5.5, there is no (a) Legal Proceeding pending or threatened, against, involving or affecting either of the Purchasers or any of their respective assets or rights; (b) judgment, decree, injunction, rule, or order of any Governmental Entity applicable to the that has had or is reasonably likely to have, either Individually or in the aggregate, a Fusion Material Adverse Effect; (c) legal Proceeding pending or threatened against either of the Purchasers that seeks to restrain, enjoin or delay the consummation of this Agreement or any of the other Transactions or that seeks damages in connection there with; or (d) injunction, of any type. For the avoidance of any doubt, each of the Sellers and each of their respective shareholders, board of directors, officers, employees, agents or attorneys (each an "Indemnified Party"), are hereby indemnified by each of the Purchasers from and against any and all claims, liabilities, obligations, costs and attorneys' fees and held harmless in the event a Legal Proceeding is pending or threatened against any Indemnified Party. This section shall survive Closing for a period of two (2) years.

 

The Fusion Stock to be issued to the Members pursuant to the terms of this Agreement has been duly authorized, and when issued upon payment of the agreed upon consideration therefore, will be duly and validly issued, fully paid and non-assessable, and will not be issued in violation of the preemptive or similar rights of any stockholder.

Fusion has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended  (the "Exchange Act"), and accordingly, files quarterly, annual and current reports and other information with the SEC under the Exchange Act (such reports and Information filed by Fusion with the EC for the preceding 12 months being hereinafter referred to as the "SEC Reports"). Copies of all information filed by Fusion with the SEC, including the SEC Reports, may be examined at the website of the SEC at www.sec.gov. Fusion has filed all reports required to be filed by it under the Exchange Act and the SEC Reports do not contain a misstatement of a material fact, omit to state a material fact or omit to state any fact necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading.

As of the date hereof and as of the date of Closing, the representations and warranties of each of the Purchasers herein, the Schedules hereto, all documents and other papers listed therein or required to be delivered pursuant to this Agreement, and all due diligence ma1erials provided by or on behalf of each of the Purchasers are and shall be true, complete, correct and authentic. No representation or warranty of Purchasers contained in this Agreement, and, no document furnished by or on behalf of either or both of them pursuant to this Agreement or in connection with the Transactions, contains or will contain an untrue statement of a material fact or omits or will omit to state a material fact required to be stated therein or necessary to make the statements made, in the context in which made, not false or misleading.

(a)    Unless otherwise agreed to in writing by the Party disclosing the same (a "Disclosing Party"), each party (a “Receiving Party”) will, and will cause its officers, directors, employees, and agents (collectively referred to as such party's "Representatives") to, (I) keep all Confidential Information (as defined below) of the disclosing  party in strict confidence and not disclose or reveal any such Confidential Information to any person or Entity other than those Representatives of the receiving party who are participating in effecting the Transactions or who otherwise need to know such Confidential Information, (ii) use such Confidential Information only in  connection with consummating the Transactions and enforcing the Receiving Party's rights hereunder, and (iii) not use Confidential Information in any manner detrimental to the Disclosing Party. In the event that a Receiving Party is requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing  Party with prompt notice of such request(s) to enable the Disclosing Party to seek an appropriate protective order.

 

(b)    A Party's obligations hereunder will not apply with respect to Confidential Information that (i) is disclosed to a third party with the Disclosing Party's written approval, (ii) is required to be produced under order of a  court of competent jurisdiction or other similar requirements of a governmental agency, or (iii) is required to be disclosed by applicable law or regulation. If a receiving party uses a degree of care to prevent disclosure of the Confidential Information that is at least as great as the care it normally takes to preserve its own information of a similar nature, it will not be liable for any disclosure that occurs despite the exercise of that degree of care, and in no event will a Receiving Party be liable for any indirect, punitive, special or consequential damages. In the event this Agreement is terminated, each party will, if so requested by the other party, promptly return or destroy all of the Confidential Information of such other party, including all copies, reproductions, summaries, analyses or extracts thereof or based thereon in the possession of the receiving party or its Representatives.

(c)    For purposes of this Section 6.1, “confidential Information" of a party means all confidential or   proprietary information about such party that is furnished by it or its Representatives to the other party or the  other party's Representatives, regardless of the manner in which it is furnished. Confidential Information does not include, however, information which (i) has been or in the future is published or is now or in the future is otherwise in the public domain through no fault of the Receiving Party or its Representatives or is otherwise required to be disclosed by law; (ii) was available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the Disclosing Party; (iii) becomes available to the Receiving Party or its Representatives on a non-confidential basis from a person or Entity other than the Disclosing Party  or its Representatives who is not otherwise bound by a confidentiality agreement with the Disclosing Party or its Representatives, or is not otherwise prohibited from transmitting the information to the Receiving Party or its Representatives, or (iv) is independently developed by the Receiving Party or its Representatives through persons who have not had, either directly or indirectly, access to or knowledge of such information. Nothing contained in this Section 6.1 shall be construed to limit a Receiving Party's right to independently develop or acquire products without use of the Disclosing Party's Confidential Information.

(d)   Except as contemplated herein, or as may be required by applicable law, no announcement or disclosure of this transaction, or matters related to this transaction, shall be made by either Party without the prior written approval of the other Party; provided, however, that nothing in the foregoing shall restrict Fusion from making such disclosures as it reasonably deems necessary to comply with its reporting obligations under the Exchange Act.

(e)    All prior agreements between the parties concerning or relating to non-disclosure, confidentiality, or non-solicitation, including but not limited to the Non-Disclosure Agreement previously signed by the Parties, shall remain in full force and effect.

From the Effective Date of this Agreement through the Closing, and with a view towards consummation of the  Transactions and a smooth transition of managerial and supervisory functions following the Closing, Sellers  agree to (a) discuss with Purchasers material operational decisions relating to the Business, (b) consider the advice and recommendations of Purchasers with respect to those decisions, (c) allow Purchasers and their representatives access to the Business with a view towards familiarizing themselves with day-to-day operations, (d) maintain books and records of the Business in accordance with GAAP, (e) provide Purchasers with regular  financial statements and access to the books and records of the Business, and (f) provide Purchasers with operational and managerial reports  concerning  the Business as may reasonably be requested by Purchasers.

6.3           Operation of the Business

Notwithstanding the preceding Section 6.2, and except as provided otherwise herein, during the period between the Effective Date and Closing, or if applicable the termination of this Agreement as provided herein, NBS shall at a minimum continue to operate its Business in the ordinary course consistent with past practice and shall not, without the prior written consent of Purchasers:

(a)    Sell lease, assign, transfer or otherwise dispose of any of its material assets.

(b)    Make any material capital business expenditures.

(c)    Create, incur, assume or suffer to exist, any business related mortgage, pledge, lien, charge, security interest or encumbrance of any kind upon any of its property, assets, income, or profits, whether now owned or hereafter acquired.

(d)    Borrow funds.

(e)    Sell, assign, convey or transfer any assets material to NBS or the Business other than inventory or other assets held for resale in the ordinary course of business.

(f)     Issue, redeem. or repurchase any equity or debt securities.

(g)    Amend its Articles of Organization or Operating Agreement.

(h)    Enter into any agreement to do any of the foregoing.

(i)     Take any action that could reasonably be foreseen to diminish the value of the Business, or could result in a Business Material Adverse Effect.

6.4           Organizational Integration

Following the Effective Date and prior to Closing, the Parties shall work together in good faith to develop effective plans for the integration of the organizations of NBS, the Business, and Purchasers into a common organization (the "Integration Plan"), which Integration Plan shall not be implemented until Closing, unless  otherwise agreed to by the Parties. Furthermore, the Integration Plan shall be considered Confidential Information within the meaning of Section 6.1 above. Immediately after Closing, all personnel included in the Integration Plan shall become direct or indirect employees of Fusion, and shall thereafter be entitled to such compensation and benefits as are typically accorded to similarly situated employees of Fusion or as may otherwise be dictated by this Agreement Purchasers shall advise Sellers at least 30 days prior to Closing or any employee(s) of the Business who are not included in the Integration Plan and who, therefore, will not be retained following Closing. Nothing in the foregoing shall guarantee any employee of the Business continued employment following the Closing, and Purchasers reserve the right to make all decisions affecting personnel of the Business from and after the Closing.

6.5           Employment of Kaufman

At the Closing, Kaufman shall enter into an Employment Agreement in form and substance reasonably acceptable to Purchasers and Kaufman which Employment Agreement shall define the role and responsibilities of Kaufman and shall Include those terms of employment described on Schedule 6.5, and, to the extent not described on such schedule, compensation and benefits not to exceed Fusion's current compensation and benefits structure for its executive officers.

6.6           No Solicitation or Acceptance of Proposals

Commencing upon the Effective Date and continuing until the Closing of the transaction, none of the Sellers, including their respective directors, officers, employees, representatives, members, managers, or other agents, shall, directly or indirectly, enter into any discussion with, solicit or entertain offers from, negotiate with or in any manner encourage, discuss, accept or consider any proposal from any person or Entity other than Purchasers relating to the purchase or sale of the Business, the equity or assets of NBS or ISG and/or any interest therein (a "Proposal"). Each of the Sellers shall immediately cease and suspend any existing activities, discussions, or negotiations with any person or Entity (other than Purchasers) conducted heretofore with respect to any Proposal. Sellers shall immediately advise Fusion of the identity of any person or Entity who submits any Proposal or other communication regarding a Proposal, and provide Fusion with a copy of the submission.

Closing of the transaction shall be subject to the satisfactory completion of due diligence by Purchasers. Purchasers shall commence its due diligence promptly following execution of this Agreement. Sellers shall provide Purchasers and their representatives with access to the facilities, management, books and records of NBS and the Business at all reasonable times upon reasonable notice; and Purchasers agree to conduct due diligence in such a manner as to cause as little interference with the operation of the Business as is practicable. In the event that Purchasers determine not to proceed with the Transactions, and therefore to terminate this Purchase Agreement based upon its due diligence review, Purchasers shall so notify Sellers within three (3) business days of any such determination, whereupon this Purchase Agreement shall cease to be of further force or effect except as hereinafter set forth. In the event Purchasers have not terminated this Agreement under this Section 6.7 prior to the later of April 30, 2012 or delivery of the Audit (as hereinafter defined) (such later date being referred to as the (“Outside Date"), Purchasers shall have no further right to terminate this Agreement under this Section 6.7; it being understood, however, that this provision shall not alter Purchaser's right to terminate this Agreement in the event of a Business Material Adverse Effect or otherwise under Section 9.1.

 

Closing of the Transactions shall be subject to the completion and delivery to Purchasers of an audit (the "Audit") of the financial statements of NBS, ISG and the Business, to the extent required by and under the applicable rules and regulations of the SEC (the "Audited Financial Statements"), by an audit firm acceptable to  Purchasers and their professional advisors, in their sole discretion. Sellers shall use their best efforts to reasonably cooperate with its audit firm and Purchasers in the conduct of the Audit. The Parties agree to use their best efforts to cause the Audit to be completed on or before April 30, 2012, subject to an automatic extension to May 31, 2012, if necessary (as may be further extended by mutual consent of the Parties, the "Audit Due Date"). Purchasers may terminate this Agreement within ten (10) business days following receipt of the Audited Financial Statements in the event that (a) the Audited Financial Statements are determined by Fusion's auditors not to be in compliance with GAAP and/or the rules and regulations of the SEC applicable to Fusion, (b) the filing of such Audited Financial Statements with the SEC could cause Fusion to be out of compliance with its obligations under Federal securities laws and/or (c) the financial condition and results of operations reported in the Audited Financial Statements are materially and adversely different from the  financial condition or results of operations reported in the Unaudited Financial Statements. The Parties' obligations to pay the fees and expenses of the Audit are set forth in Section 10.2 below.

Closing of the Transactions shall be subject to the Parties obtaining all required regulatory approvals to enable Purchasers to own and operate the Business post-Closing. The Parties shall cooperate and work together to obtain such regulatory approvals and to transfer all transferable licenses to Fusion and/or Newco or their affiliates, as appropriate. Each Party shall comply with all reasonable requests of the other Party that are necessary to obtain such regulatory approvals and/or to transfer licenses. The Parties' obligations to pay the fees and expenses of the regulatory approvals process are set forth in Section 10.2 below.

Closing of the Transactions shall be subject to the Parties' obtaining all required approvals for the assignment to Newco and/or Fusion, as necessary, of agreements, contracts, commitments, leases, licenses, permits, or other authorizations that may not be assigned without the consent of a third party (“Third Party Consents"). Each Party shall comply with all reasonable requests of the other Party, which are necessary to obtain such Third-Party Consents.

Each Party shall use its respective commercially reasonable efforts to satisfy all conditions necessary for the completion of due diligence, the completion of the Audit, the obtaining of the regulatory approvals, the obtaining of third-party consents, satisfaction of all condition precedents to Closing, and the Closing of the Transactions.

Each of the Sellers, from time to time after the Closing, at Purchasers' request, shall execute, acknowledge and deliver to Purchasers such other instruments of conveyance and transfer, and will take such other actions and execute and deliver such other documents, certifications and further assurances as Purchasers may reasonably request in order to vest more effectively in Purchasers, or to put Purchasers more fully in possession of the Interests and the Business.

 

Commencing on the Effective Date and continuing until the Closing or, in the event the contemplated transaction is not closed, one (1) year following termination of this Agreement, no Party to this Agreement shall, directly or indirectly, solicit or advise an employee or agent of the other Party to terminate his employment or agency with the other Party, or solicit or employ said employee or agent to work in any capacity for that Party.

(a)    For three (3) years following Closing, none of the Sellers, including any of their respective directors, officers, employees and agents, will, directly or indirectly, on behalf of any other person or Entity, in any way or in any other capacity, solicit any customer of NBS, ISG or the Business, including without limitation calling  upon any such customer for the purpose of soliciting or providing to such customer any products or services  which are the same as or similar to those provided or intended to be provided by Fusion or its affiliates.

(b)   As partial consideration for payment of the Purchase Price hereunder and as a material inducement to Purchasers to consummate the Transactions, on or before the Closing, Kaufman agrees to enter into a restrictive covenant agreement with Purchasers on terms that are mutually agreeable to Purchasers and Kaufman providing  that, for a period of three (3) years from Closing, he (i) will not engage in or conduct. directly or indirectly, in any capacity, any business activities that compete with the business of Fusion or its affiliates within those states in which the Business is conducted or in which Fusion or its affiliates currently or In the future have customers; and will not, directly or indirectly, deliver service in any such state; and (ii) will not solicit employees or agents of NBS, ISG, the Business or Fusion to leave the service of NBS, ISG, the Business or Fusion, as the case may be; and (iii) will not solicit customers of NBS, ISG, the Business or Fusion to divert their business away from, or to reduce their level of business with, NBS, ISG, the Business or Fusion.

The Parties understand and acknowledge that Purchasers' consummation of the Transactions is subject to and dependent upon its ability to secure adequate financing to pay the Purchase Price under this Agreement and the ISG Asset Purchase Agreement, and provide for reasonable working capital needs following the Closing, as  determined by Purchasers, through debt and/or equity financing ("Necessary  Funding"). Accordingly,   Closing of the Transactions shall, at all times, be contingent upon Purchasers securing Necessary Funding; provided, however, that in the event Purchasers have not secured commitments for Necessary Funding prior to the expiration of 60 days following the Audit Due Date, any Party may terminate this Agreement.

Fusion hereby agrees that, in the event it files a registration statement under the Securities Act (other than on Form S-4, S-8 or any successor form) whereby it seeks to register shares of its common stock on behalf of one or more third parties, for resale, Fusion will include such of the Fusion Stock as Sellers request for registration  in such registration  tatement; provided, however, (a) the number of shares of Fusion Stock to be registered shall be subject to cutback to the extent required by the SEC or a placement agent, (b) the costs and expenses of such registration shall be borne by Fusion to the same extent as Fusion bears the costs an, expenses of registration on behalf of other selling shareholders, (c) Fusion shall have the right to withdraw any registration statement referred to in this Section in its sole discretion, (d) the registration rights provided herein shall not apply to the extent that the Fusion Stock to be registered may be resold without registration and without legend in accordance with the applicable requirements of the SEC, and (e) Sellers' entitlement to the registration rights set forth in this Section shall be subject to Sellers providing such Information as may reasonably be requested by Fusion to enable Fusion to comply with its regulatory obligations in connection with the registration for resale of the Fusion Stock.