ASSET PURCHASE AND SALE AGREEMENT

(a)           All of the issued and outstanding shares or membership interests of another Entity to the extent of ISG's ownership interest therein such that following the Closing, Newco shall own all of the assets of such other Entity, including, but not limited to, cash, cash equivalents. accounts receivable, prepaid expenses, customers, agents, customer agreements, agent agreements, equipment, equipment leases, maintenance agreements, property, property leases, miscellaneous service agreements, and any and all other assets as may be necessary to the ongoing operations of the Business.

(b)           All of  the Assets, including, but not limited to prepaid expenses, customers, agents, customer agreements, agent agreements, supplier agreements, equipment, equipment leases, inventory, maintenance agreements, property, property leases, miscellaneous service agreements, and  any and all other  assets  as may  be  necessary  to the ongoing  business operations of the Business.

(c)           The Assets will specifically include all of the following scheduled items:

(i)            All items of personal property, including,but not limited to, office furniture, office equipment, office supplies, and other tangible personal property related to the administration of the Business as is,where is and as set forth on Schedule 2.2(c)(i).

(ii)           All items of switching equipment, networking equipment, and customer premise equipment as is, where is and as set forth on Schedule 2.2(c)(ii).

(iii)          All items of computer equipment, related peripherals, and software licenses (as are assignable) related  thereto as is, where is and as set forth on Schedule 2.2(c)(iii).

(iv)          All rights under any written or oral Contract. lease, agreement, plan, instrument, registration, license, certificate of occupancy, other permit, certification, authorization or approval  of any nature, or other document, commitment, arrangement, undertaking, practice or authorization set forth on Schedule 2.2(c)(lv).

(v)           All  licenses, permits, and authorizations (collectively,  "Licenses  and Permits"), subject to Fusion qualifying  for all of said Licenses and Permits, listed on Schedule 2.2(c)(v).

(vi)          All Intellectual Property, as previously defined, whether registered or unregistered, and any applications therefor utilized by or in any way associated with the Business or the products and services offered by the Business, as  set forth on Schedule 2.2(c)(vi).

(vii)         All Business Records [as hereinafter defined in Section 3.2(a)(ii)]. If there is  a  claim  made, the Company shall have the reasonable right of access to the Business Records post-Ciosing for the period of the applicable statute of limitations.

(viii)        The customer base and all customer information, files, records, data, plans and recorded knowledge, including customer records, customer contracts, customer lists and prospect lists forth on Schedule 2.2(c)(viii), as may be updated to an including the Closing Date, as  well as all customer agreements and contracts associated with the foregoing ("Customer Agreements"), except that customer agreements evidenced by ISG's standard form of customer agreement need not be identified on Schedule 2.2(c)(viii).

(ix)          The supplier lists and contracts with suppliers set forth  on Schedule 2.2(c){ix) ("Supplier Contracts"), as may be updated to an including the Closing Date.

 

(e)            ISG 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)            ISG  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 ISG, the Business  or Taxes.   There are no Liens for Taxes on any of the assets  of ISG. Within the preceding four years, no claim has been made in writing by a Governmental Entity of a jurisdiction  where ISG has not filed Tax Returns  that ISG is or may be subject to taxation by that jurisdiction.

 

 

 

(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 ISG or the Business, under  or pursuant  to any Environmental Law, and neither ISG nor the Business has received written notice from any person, including any Governmental  Entity, (A) alleging that ISG 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)    ISG  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)        ISG 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 approv ls;

 

(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 ISG or the Business in concentrations  or under conditions or circumstances  that  (A) would reasonably be expected to result in liability to the ISG or the Business under any Environmental Laws or (B) would require reporting, investigation, remediation or other corrective or response action.by ISG 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 ISG or the Business; and

 

(v)    Neither  ISG 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 animallife  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.

 

 

 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, ISG has good title to,or a valid and binding leasehold interest in, the Assets and all the personalproperty owned by it, free and clear of all Liens.

 

 

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)    ISG 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 ISG and the Business; and

 

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

 

 

(a)    Schedule  4.24 contains  a true and complete  list, as of the date hereof, of all Intellectual Property rights to which ISG 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 lntellectual 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, ISG 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 ISG 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 ISG or the Business.

 

 

Except as set forth in Schedule 4.25, as of the date hereof and the Closing Date, neither ISG 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(b)(10) of Regulation S-K promulgated by the SEC), (ii) would, after giving effect  to the Transactions,  limit  or restrict ISG 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  ISG  to  pay  dividends  or  make distributions  to  its  stockholders  or  (iv)  provides   for the  operation  or  management  of  any operating  assets  of ISG  or  the Business  by  any  person  other  than ISG 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 Contrace In addition, any Contract that provides for the payment of $10,000 or mpre, over the term of the Contract, shall be considered a Company Material Contract. Each Company Material Contract is a valid and binding obligation of ISG 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 ISG 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.

 

 

All written information concerning ISG and the Business that has been prepared by or on behalf  of  ISG  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.

 

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, jointly and severally, hereby represents and warrants to each of the Sellers as follows:

 

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.

 

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 By Laws 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 therewith; 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 Partyw), 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.

 

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 materials 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 omil to state a material fact required to be stated therein or necessary lo 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 wlI 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 ror any indirect, punitive, special or consequential damages. In the event this Agreement is tenninated, 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 conrldential 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 other Wise 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 conceming the Business as may reasonably be requested by Purchasers.

 

 

 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 his Agreement as provided herein, ISG 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 ISG or the Business other than inventory or other assets held for resale in lhe 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.

 

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 of 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.

 

At  the  Closing, Kaufman  shall  enter  into  an  Employment  Agreement  to the extent provided in the NBS Purchase Agreement.

 

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 identily 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 ISG  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 lhree (3) business days of any such determination, whereupon this Purchase Agreement shall  cease  to  be  of  further  force  or  effect  except  as  hereinafter  sal 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 or 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 Nawco 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, Kaufman agrees to enter into a restrictive covenant agreement with Purchasers on terms that are mutually  agreeable to Purchasers and Kaufman providing, 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 ils ability to secure adequate financing to pay the Purchase Price under this Agreement and the NBS 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.