ASSET PURCHASE AGREEMENT BY AND AMONG BERLINER COMMUNICATIONS, INC. (a Delaware corporation) Seller, BCI COMMUNICATIONS, INC. (a Delaware corporation) Purchaser and NOVO NETWORKS, INC. (a Delaware corporation) Parent of Purchaser Dated as of February 18, 2005

EXHIBIT 2.3

ASSET PURCHASE AGREEMENT

BY AND AMONG

BERLINER COMMUNICATIONS, INC.
(a Delaware corporation)
Seller,

BCI COMMUNICATIONS, INC.
(a Delaware corporation)
Purchaser

and

NOVO NETWORKS, INC.
(a Delaware corporation)
Parent of Purchaser

Dated as of February 18, 2005

TABLE OF CONTENTS

i 

ii 

LIST OF EXHIBITS

SCHEDULES

SELLER DISCLOSURE SCHEDULES

PARENT DISCLOSURE SCHEDULES

iii 

ASSET PURCHASE AGREEMENT

     This ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of February 18, 2005, by and among BCI COMMUNICATIONS, INC. a Delaware corporation (the “Purchaser”), NOVO NETWORKS, INC., a Delaware corporation and parent of the Purchaser (“Parent”), and BERLINER COMMUNICATIONS, INC., a Delaware corporation (the “Seller”). The parties hereto may sometimes be referred to collectively as the “Parties” or individually as a “Party.”

     In consideration of the mutual covenants and agreements contained herein, the Parties covenant and agree as follows:

ARTICLE 1.
DEFINITIONS

     Section 1.1 General Definitions. Unless otherwise stated in this Agreement, the following terms shall have the following meanings:

     “Affiliate” shall mean any Person that, directly or indirectly, controls, or is controlled by, or under common control with, another Person. For the purposes of this definition, “control” (including the terms “controlled by” and “under common control with”), as used with respect to any Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities or by contract or otherwise.

     “Applicable Law” shall mean all applicable provisions (domestic or foreign) of all (i) constitutions, treaties, statutes, laws (including the common law), rules, regulations, ordinances, codes and Orders of or with any Governmental Body and (ii) Governmental Approvals.

     “Assets” shall have the meaning set forth in Section 2.1.

     “Bill of Sale” shall mean the Bill of Sale substantially in the form of Exhibit A attached hereto.

     “Business” shall mean all of the business operations acquired or to be acquired by the Purchaser pursuant to the Operative Documents, consisting of the Assets, involving generally the telecommunications business of the Seller, including all business operations currently being conducted by the Seller at any location.

     “Certificate of Designation” shall mean the Certificate of Designation with respect to the Parent’s issuance of Series E Convertible Preferred Stock, the form of such Certificate of Designation being attached hereto as Exhibit B.

     “Claims” shall have the meaning set forth in Section 3.10.

     “Closing” shall mean the consummation of the Transactions as provided in Article 6.

     “Closing Date” shall mean the date on which the Closing occurs.

ASSET PURCHASE AGREEMENT — Page 1

     “Code” shall mean the Internal Revenue Code of 1986, as amended.

     “Common Stock Consideration” shall mean those shares of Parent Common Stock issued to the Seller as part of the Purchase Price pursuant to Section 2.3.

     “Consent” shall mean any consent, approval, authorization, action, waiver, permit, grant, franchise, concession, agreement, license, exemption or Order of, registration, certificate, declaration or filing with, or report or notice to, any Person (including foreign Persons), including any Governmental Body.

     “Customer Data” shall mean all of the Seller’s customer lists, lists of potential customers, sales records (including pricing information and customer contractual status), other records, telephone and fax numbers, email addresses and other customer data (including credit data).

     “Environmental Laws” shall mean all Applicable Laws and any judicial or administrative interpretations thereof relating to the protection of the environment, to human health and safety, or relating to the emission, discharge, generation, processing, storage, holding, abatement, existence, release, threatened release or transportation of any Hazardous Materials or waste, including (i) the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Toxic Substances Control Act, the Federal Water Pollution Control Act, the Endangered Species Act and the Occupational Safety and Health Act, (ii) all other requirements pertaining to the reporting, licensing, permitting, investigation or remediation of emissions, discharges, releases or threatened releases of Hazardous Materials or Solid Waste into the air, surface water, ground water or land, or relating to the manufacture, processing, distribution, use, sale, treatment, receipt, storage, disposal, transport or handling of Hazardous Materials or Solid Waste, and (iii) all other requirements pertaining to the protection of the health and safety of employees or the public.

     “Exchange Act” means the Securities Exchange Act of 1934, as amended.

     “GAAP” shall have the meaning set forth in Section 1.2.

     “Governmental Approval” shall mean any Consent of, from or with any Governmental Body.

     “Governmental Body” shall mean any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency, authority or instrumentality, domestic or foreign.

     “Hazardous Materials” shall mean any waste, substance, material, smoke, gas or particulate matter that: (i) is or contains asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum or petroleum-derived substances or wastes, radon gas or related materials, (ii) requires investigation, removal, regulation or remediation under any Environmental Law, or is defined, listed or identified as a “hazardous waste” or “hazardous substance” thereunder, or (iii) is toxic, explosive, corrosive, flammable, infectious, radioactive,

ASSET PURCHASE AGREEMENT — Page 2

carcinogenic, mutagenic, or otherwise hazardous or dangerous or is regulated by any Governmental Body or Environmental Law.

     “Including” or “Includes” shall, whether capitalized or not, mean including, without limitation, or includes, without limitation.

     “IRS” shall mean the Internal Revenue Service.

     “Issued Securities” shall mean, collectively, the shares of Parent Common Stock and shares of Series E Preferred Stock issued to Seller pursuant to Section 2.3 of this Agreement.

     “Knowledge” shall mean the terms “knowledge,” “awareness” and “belief” and any similar term or words of like import shall mean the Party’s actual knowledge, awareness or belief, as the case may be, following reasonable inquiry of the individuals identified on the Disclosure Schedule of such Party.

     “Liability” (and with correlative meaning, “Liabilities”) shall mean any commitments, debts, liabilities, guarantees, obligations (including contract and capitalization lease obligations), indebtedness, accounts payable and accrued expenses of any nature whatsoever (whether any of the foregoing are known or unknown, secured or unsecured, asserted or unasserted, absolute or contingent, direct or indirect, accrued or unaccrued, liquidated or unliquidated and/or due or to become due), including any liability or obligation for Taxes.

     “Lien” shall mean all liens, claims, charges, adverse claims, security interests, pledges, mortgages, title restrictions, encumbrances or other restrictions on use, except and excluding Permitted Encumbrances.

     “Material Adverse Effect” shall mean, when used with respect to any of Seller, Purchaser, or the Parent, as the case may be, any event, change or effect that individually or when taken together with all other such events, changes or effects is or is reasonably expected to be materially adverse to the business, assets, liabilities, financial condition, or results of operations of such party and its Subsidiaries, taken as a whole.

     “Operative Documents” shall mean this Agreement, and all other agreements, instruments, documents, exhibits, schedules and certificates executed and delivered by or on behalf of the Seller, the Purchaser or the Parent at or before the Closing pursuant to this Agreement.

     “Order” shall mean any order, writ, injunction, decree, judgment, award, decision or determination of, or agreement with, any Governmental Body.

     “Parent” shall not include any subsidiaries of the Parent which have filed petitions for protection under Title 7 or Title 11 of the United States Bankruptcy Code.

     “Parent Common Stock” shall mean the Parent’s common stock, par value $0.00002 per share.

ASSET PURCHASE AGREEMENT — Page 3

     “Parent Disclosure Schedule” shall mean the disclosure schedule delivered by the Parent and the Purchaser pursuant to the provisions of this Agreement prior to or on the date hereof, as subsequently supplemented and amended (which supplements and amendments are approved by the Seller).

     “Parent Preferred Stock” shall mean the Series B Preferred Stock, Series D Preferred Stock and Series E Preferred Stock.

     “Parent’s Net Cash Assets” means, as of the February 18, 2005, the aggregate amount of the Parent’s cash and cash equivalents in excess of (i.e., net of) all operating Liabilities and contractual commitments of the Parent.

     “Permits” shall mean all permits, authorizations, certificates, approvals, registrations, variances, exemptions, rights-of-way, franchises, privileges, immunities, grants, ordinances, licenses and other rights of every kind and character (a) under any (i) Applicable Law, (ii) Order or (iii) contract with any Governmental Body or (b) granted by any Governmental Body.

     “Permitted Encumbrances” shall mean (i) Liens for Taxes and assessments not yet due and payable or which are being challenged in good faith, (ii) informational filings made by equipment lessors under the Uniform Commercial Code, (iii) minor imperfections of title not material in nature or amount and not materially detracting from the value or impairing the use of the Assets thereto or impairing the operations of the Seller and (iv) in the case of the Seller, the Liens set forth on the Seller Disclosure Schedule.

     “Person” shall mean an individual, partnership, joint venture, corporation, company, limited liability company, bank, trust, unincorporated organization, Governmental Body or other entity or group.

     “Preferred Stock Consideration” shall mean those shares of Series E Preferred Stock issued to Seller as part of the Purchase Price pursuant to Section 2.3.

“Premises” shall mean all Business locations of the Seller, set forth on Schedule 1.1.

     “Proceeding” shall mean any action, claim, suit, proceeding, litigation, arbitration, mediation, investigation, inquiry, grievance, review or notice.

     “Products” shall mean all products manufactured, produced, licensed, marketed or distributed by the Seller as a part of the Business.

     “Purchase Price” shall have the meaning set forth in Section 2.3.

     “SEC” means the Securities and Exchange Commission.

     “SEC Reports” shall have the meaning set forth in Section 4.7.

     “Securities Act” means the Securities Act of 1933, as amended.

ASSET PURCHASE AGREEMENT — Page 4

     “Seller Disclosure Schedule” shall mean the disclosure schedule delivered by the Seller pursuant to the provisions of this Agreement prior to or on the date hereof, as subsequently supplemented and amended (which supplements and amendments are approved by the Parent).

     “Seller Financial Statements” shall have the meaning set forth in Section 3.7.

     “Series B Preferred Stock” shall mean the Parent’s Series B Convertible Preferred Stock, par value $0.00002 per share.

     “Series D Preferred Stock” shall mean the Parent’s Series D Convertible Preferred Stock, par value $0.00002 per share.

     “Series E Preferred Stock” shall mean the Parent’s Series E Convertible Preferred Stock, par value $0.00002 per share, as more particularly described in the Certificate of Designation.

     “Solid Waste” shall mean any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, including air emissions discharged into the environment whether pursuant to a permit or exemption from a Governmental Body or pursuant to any Environmental Law, and other discarded material, including solid, liquid, semi-solid, or contained or fugitive gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities.

     “Special Stockholders Meeting” shall have the meaning set forth in Section 8.1(a).

     “Subsidiaries” when used with reference to a Person, shall mean any entity (i) the accounts of which would be consolidated with those of such Person in such Person’s current financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests or more than 50% of the profits or losses are owned, controlled or held by such Person and/or one or more subsidiaries of such Person.

     “Supplier Data” shall mean all of the Seller’s supplier and vendor lists, records, telephone and fax numbers, email addresses and publications and marketing material relating to the purchase of goods or the provision of services to the Seller in connection with the Business.

     “Tax” (and with correlative meaning, “Taxes” and “Taxable”) shall mean any of the following charges imposed by or payable to any Governmental Authority: any income, gross receipts, license, payroll, employment, excise, severance, stamp, business, occupation, premium, windfall profits, environmental (including taxes under section 59A of the Internal Revenue Code of 1986, as amended), capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, production, sales, use, transfer, registration, ad valorem, or value added tax, any alternative or add-on minimum tax, any estimated tax, and any levy, impost, duty, assessment or withholding, in each case including any interest, penalty, or addition thereto, whether disputed or not.

ASSET PURCHASE AGREEMENT — Page 5

     “Tax Return” shall mean any return, declaration, report, claim for refund, information return or statement relating to Taxes, including any schedule or attachment thereto, and any amendment thereof, to be filed (whether on a mandatory or elective basis) with any Governmental Authority responsible for the imposition or collection of Taxes.

     “Threatened” shall mean, with respect to any Party, that Party’s notification from the Person to whom the threat is attributable or such Person’s agents, which notification makes specific reference to and clearly identifies the matter or thing being threatened or that Party observes an action by the Person to whom the threat is attributable or such Person’s agents that in the exercise of reasonable and prudent business judgment would cause such Party to believe that the matter or thing is being threatened.

     “Transaction” or “Transactions” shall mean the acquisition of the Assets and the performance of the other covenants and the transactions described in this Agreement, including the consummation or closing of the foregoing.

     “Voting Agreement” shall mean the voting agreement, substantially in the form attached hereto as Exhibit C, which is to, among other things, authorize the amendment of the Certificate of Designation, Preference and Rights of the Series B Preferred Stock and Series D Preferred Stock to reduce the conversion rate to $1.1250 per share and thereby increase the number of shares issuable upon conversion to 4,000,000 shares in the case of a share of the Series B Preferred Stock; reduce the conversion rate to $0.5706 per share and thereby increase the number of shares issuable upon conversion to 16,600,305 shares in the case of a share of the Series D Preferred Stock; and to cause all shares of Parent Preferred Stock, including the newly issued shares of Series E Preferred Stock, to be converted into Parent Common Stock.

     Other terms shall have the meanings ascribed to them elsewhere herein.

     Section 1.2 Accounting Terms and Definitions. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with generally accepted accounting principles published by the Financial Accounting Standards Board as in effect from time to time, applied on a consistent basis (“GAAP”), except that the financial statements as of September 30, 2003, and 2004, do not include and will not include statements of cash flows or the notes required by GAAP to accompany the balance sheets and accompanying statements of operations and cash flows required under GAAP.

ARTICLE 2.
SALE OF ASSETS

     Section 2.1 Agreement to Purchase and Sell. Subject to the applicable terms and conditions of this Agreement, at the Closing, the Seller shall sell, transfer, assign, convey and deliver to the Purchaser, and the Purchaser shall purchase, all of the assets that are owned by the Seller other than the Excluded Assets whether such assets are now owned or controlled by the Seller, including the following assets (such assets, being collectively referred to as the “Assets”), free and clear of all Liens, other than the Permitted Encumbrances:

ASSET PURCHASE AGREEMENT — Page 6

     (a) Equipment. All office furniture, space dividers and work cubicles, manufacturing, fabricating, demo and other equipment, machinery, apparatus, tools, appliances, computers and computer components, samples, implements, spare parts, supplies and all other tangible personal property of every kind and description whether located on the Premises or elsewhere.

     (b) Computer Equipment/Software. All computer equipment, hardware and software owned by the Seller, including all central processing units, terminals, disk drives, tape drives, electronic memory units, printers, keyboards, servers, screens, peripherals (and other input/output devices), modems and other communication controllers, embedded devices and any and all parts and appurtenances thereto, together with all right, title and interest of the Seller in, to and under all intellectual property, including all source code, instruction set, object code, title to software, all data files, all licenses related to the Seller’s use of such Computer Equipment/Software and all leases pursuant to which the Seller leases any Computer Equipment/Software.

     (c) Contracts. All right, title and interest of the Seller in, to and under all contracts, arrangements, licenses, leases (including capital leases), purchase orders and agreements (whether written or oral) as of the Closing Date, including deposits, prepaid services, and sums of money due from billings after the Closing Date.

     (d) Intangible Assets. All right, title and interest of the Seller in, to and under the name “Berliner Communications, Inc.” and any derivative of such name, all trademarks, trade names, service marks, labels, logos, copyrights, designs, trade secrets, technology, know-how, patents, data, licenses, franchises, distributorships, covenants by others not to compete, rights to telephone, facsimile, cellular telephone, pager, ISDN, email addresses, Internet domain names, web sites, and computer passwords, rights, other intellectual property created by, licensed by and/or used by the Seller in the Business, privileges and any registrations or applications for registrations of the foregoing used in the conduct of the Business, and any right to recovery for infringement thereof (including past infringement) and any and all goodwill associated therewith or connected with the use thereof and symbolized thereby.

     (e) Non-Competition, Non-Solicitation and Confidentiality Arrangements. All of the Seller’s right, title and interest to the benefits it holds under any and all agreements, which provide for employees, consultants, associates, customers, suppliers and vendors of the Seller and other individuals, entities and third parties (i) to refrain from engaging in activities which may directly or indirectly compete with the Business, (ii) to refrain from soliciting the employees, consultants, customers, suppliers or vendors from the Seller, or (iii) to keep and hold confidential proprietary, trade secret, or other confidential information of the Seller.

     (f) Customer Data and Supplier Data. All of the Customer Data and Supplier Data.

     (g) Insurance Proceeds and Warranty Rights. All insurance proceeds and insurance claims of the Seller relating to all or any part of the Assets and, to the extent transferable, the benefit of and the right to enforce the covenants and warranties, if any, that the Seller is entitled to enforce with respect to the Assets or the Business against the Seller’s predecessors in title to the Assets.

ASSET PURCHASE AGREEMENT — Page 7

     (h) Goodwill. The goodwill of the Business of the Seller associated with the Intangible Assets or which is connected with the use of and symbolized by any of the Intangible Assets.

     (i) Permits. All of the Seller’s Permits relating to the Business or all or any part of the Assets.

     (j) Books and Records. All of the Seller’s books, records, papers, files and instruments of whatever nature and wherever located in the manner in which it is presently being conducted, including accounting and financial records, maintenance and production records, media, personnel and labor relations records, Computer Equipment/Software, environmental records and reports, sales and marketing literature, brochures or other sales aids, catalogs, price lists, mailing lists, sales and property Tax records and returns, graphic materials, specifications, surveys, building and machinery diagrams, and warranties.

     (k) Other Intangibles. All right, title and interest of the Seller in, to and under all rights, privileges, claims and causes of action.

     (l) Seller’s Cash, Bank Accounts, Accounts Receivable, Prepaid Expenses and Other Current Assets. All right, title and interest of the Seller in and to all cash, accounts receivable, bank accounts, prepaid rentals, lease payments, refunds, Taxes, clearing accounts, other prepaid expenses, bonds, deposits and financial assurance requirements and other current assets relating to any of the Assets or the Business.

     (m) Vehicles. All automobiles, trucks, trailers, vans, forklifts, rolling stock and other certificated vehicles of the Seller as of the Closing Date.

     (n) Real Property. All the real property that the Seller owns, leases, has agreed (or has an option) to purchase, sell or lease, or may be obligated to purchase, sell or lease (“Real Property”).

     (o) Personal Property. All of the personal property that the Seller owns or leases, has agreed (or has an option) to purchase, sell or lease, or may be obligated to purchase, sell or lease ( “Personal Property”).

     (p) Other Property. All other or additional privileges, rights, interests, properties and assets of the Seller of every kind and description and wherever located, including property that is used or intended for use in connection with, or that are required or necessary to the continued conduct of, the Business as presently being conducted.

     Notwithstanding the foregoing, to the extent that the Seller’s rights under any agreement, contract, commitment, lease or other item otherwise included in the Assets to be assigned to the Purchaser hereunder may not be assigned without the consent of another Person that has not been obtained, this Agreement shall not constitute an agreement to assign the same if the attempted assignment would constitute a breach thereof or be unlawful.

ASSET PURCHASE AGREEMENT — Page 8

     Section 2.2 Excluded Assets. Notwithstanding those assets listed in Section 2.1 hereto, the foregoing definition of Assets shall specifically exclude those assets identified in Schedule 2.2 hereto (the “Excluded Assets”).

     Section 2.3 Purchase Price. Subject to the terms and conditions of this Agreement, and subject to any adjustments set forth in this Agreement, the aggregate consideration to be paid by the Purchaser to the Seller for the Assets shall be the issuance of the Parent’s capital stock to the Seller, the number and class of shares of which shall be as follows (“Purchase Price”):

     (i) 147,676,299 shares of newly issued, non-assessable shares of Parent Common Stock, which shares shall not exceed the maximum number of shares of Parent Common Stock then available for issuance under the Parent’s certificate of incorporation, and

     (ii) 3,913,669 shares of newly issued, non-assessable shares of Series E Preferred Stock.

     Section 2.4 Assumption of Liabilities. (a) It is understood and agreed that other than (a) state and federal income Tax obligations of the Seller and (b) any obligations of the seller to employees of the Seller for compensation prior to the closing date, the Purchaser shall assume and become liable for the payment of all debts, liabilities, losses, accounts payable, or other obligations of the Seller, whether absolute or contingent, liquidated or disputed.

     Section 2.5 Payment of the Purchase Price. On the Closing Date, the Parent shall issue to the Seller the Common Stock Consideration and the Preferred Stock Consideration.

     Section 2.6 Allocation of Purchase Price.

     (a) The Purchase Price for the Assets shall be allocated on the Closing Date (or within 30 days thereafter) among the Assets in accordance with an allocation schedule to be prepared by the Purchaser and consented to by the Seller, which consent shall not be unreasonably withheld. Such allocation schedule shall be prepared in accordance with Section 1060 of the Code.

     (b) In connection with a determination of the allocation schedule contemplated in Section 2.5(a) above, the Parties shall cooperate with each other and provide such information as any of them shall reasonably request. The Parties shall each report the federal, state and local and other Tax consequences of the purchase and sale contemplated hereby (including the filing of IRS Forms 8594) in a manner consistent with such allocation schedule and shall not make any inconsistent written statement or take any inconsistent position on any Tax Returns during the course of any IRS or other Tax audit, for any financial or regulatory purpose, in any litigation or investigation or otherwise.

     (c) Each Party shall promptly notify the other Party if it receives notice that the IRS proposes any allocation different from the allocation agreed upon in accordance with this Section 2.5.

     Section 2.7 Instruments of Transfer; Consents. At the Closing or as promptly thereafter as is reasonably practicable, the Seller shall deliver to the Purchaser (i) the Bill of Sale, (ii) all necessary Consents to consummate the Transactions, and all necessary instruments to

ASSET PURCHASE AGREEMENT — Page 9

transfer the Real Property and the Personal Property and to vest title in such property in the Purchaser.

     Section 2.8 Further Assurances. At the Closing, and at all times thereafter as may be reasonably necessary, the Seller shall execute and deliver to the Purchaser and/or the Parent (i) such instruments of transfer as shall be reasonably necessary or appropriate to vest in the Purchaser good and indefeasible title to the Assets and to otherwise comply with the terms, purposes and intent of this Agreement and (ii) such other instruments as shall be reasonably necessary or appropriate to evidence the assignment by the Seller to the Purchaser of the Assets. At the Closing, and at all times thereafter as may be reasonably necessary, the Purchaser and Parent shall execute and deliver to the Seller such instruments of assumption of liabilities, consistent with the terms of this Agreement, as the Seller shall reasonably request.

     Section 2.9 Series E Liquidation Preference. For purposes of the Voting Agreement, the liquidation value per share of the Series E Preferred Stock shall be equal to the Liquidation Preference as defined in the Certificate of Designation.

ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE SELLER

     The Seller hereby represents and warrants to the Purchaser and to the Parent that the following is true, correct and complete as of the date of this Agreement regardless of what investigations, if any, the Purchaser or the Parent shall have made prior hereto:

     Section 3.1 Organization; Qualification. The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Seller has full corporate power and authority to own and lease all of the properties and assets it now owns and leases and to carry on its business as now being conducted. Each of the Seller and its Subsidiaries is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease by it or the nature of the business transacted by it makes such qualification necessary, except where the failure to qualify would not have a Material Adverse Effect on Seller.

     Section 3.2 Capitalization. The authorized capital stock of the Seller consists of 30,000,000 shares of Seller common stock, and 3,000,000 shares of preferred stock, par value $.01 per share. As of December 31, 2004, 20,224,321.99 shares of such common stock and no shares of such preferred stock were issued and outstanding. Except as set forth in the Seller Disclosure Schedule, there are no options, warrants or other securities, rights or agreements outstanding that entitle any Person to acquire (either currently or upon the passage of time or the occurrence of any condition or event) any shares of the Seller’s common stock or any other security convertible into or exchangeable or exercisable for the Seller’s common stock. Except as described in the Seller Disclosure Schedule, since December 31, 2004, the Seller has not issued any shares of capital stock or any other options or warrants, and has not repurchased or redeemed any such shares or options or warrants. All issued and outstanding shares of the Seller’s capital stock are validly issued, fully paid, non-assessable and free of preemptive rights.

ASSET PURCHASE AGREEMENT — Page 10

     Section 3.3 Authority Relative to this Agreement. The Seller has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall, as of the Closing, have been duly and validly authorized by the Seller’s Board of Directors and the Seller’s stockholders, and no other corporate proceedings on the part of the Seller are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement has been duly and validly executed and delivered by the Seller and, assuming this Agreement constitutes a legal, valid and binding obligation of each of the Parent and the Purchaser, this Agreement constitutes a legal, valid and binding agreement of the Seller, enforceable against the Seller in accordance with and subject to its terms and conditions, except insofar as its enforcement may be limited by (a) bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (b) equitable principles limiting the availability of equitable remedies.

     Section 3.4 Consents and Approvals. Except as otherwise required by this Agreement or the Operative Documents or as set forth on the Seller Disclosure Schedule, the execution, delivery and performance by the Seller of this Agreement and the Operative Documents and the consummation of the Transactions by Seller requires no Consent or Order by, from or with any Governmental Body or other Person not otherwise obtained and available for delivery to the Purchaser and the Parent as of the Closing Date, except where the failure to obtain such consent or approval would not have a Material Adverse Effect on the Business or the Assets.

     Section 3.5 Licenses; Permits. The Seller possesses all of the Permits required by Applicable Law, and these Permits constitute all of the Permits necessary for the Seller to own, use, operate and lease the property of the Business and the Assets and to carry on the Business as it is now being conducted.

     Section 3.6 No Violations. Neither the execution, delivery or performance of this Agreement or the Operative Documents by the Seller, nor the consummation by the Seller of the Transactions will (a) conflict with or result in any breach or violation of any provision of the certificate of incorporation or bylaws of the Seller, (b) result in a default, or give rise to any right of termination, cancellation or acceleration or loss of any material benefit under any of the provisions of any note, bond, mortgage, indenture, license, trust, agreement, lease or other instrument or obligation to which the Seller is a party or by which the Seller may be bound, (c) result in the creation or imposition of any Lien on any of the property of the Seller, including any Lien (except for the Permitted Encumbrances) on any of the Assets, (d) violate any Order, Applicable Law or Permit applicable to the Seller, the Business or the Assets or (e) violate any territorial restriction on the Business or any noncompetition or similar arrangement.

     Section 3.7 Compliance with Law. The Seller has owned and operated its Business and the Assets in compliance with the provisions and requirements of all laws, orders, regulations, rules and ordinances issued or promulgated by all Governmental Authorities having jurisdiction with respect thereto, except where the failure to own and operate such properties and assets in compliance with such provisions and requirements would not reasonably be expected to have a Material Adverse Effect on Seller. All Governmental Approvals with regard to the ownership or operation by the Seller and its Subsidiaries of their respective property and assets

ASSET PURCHASE AGREEMENT — Page 11

have been obtained, except such Governmental Approvals that, if not obtained, would not, either individually or in the aggregate, have a Material Adverse Effect. No violation exists in respect of such Governmental Approvals, except for any violations thereof by the Seller that would not, either individually or in the aggregate, have a Material Adverse Effect.

     Section 3.8 Financial Information. The Seller has provided the Parent with copies of the Seller’s balance sheet as of December 31, 2003, and September 30, 2004, and statements of operations, cash flow and stockholders’ equity for the years ended December 31, 2002, and 2003, and the Seller’s balance sheets as of September 30, 2003 and 2004, and statements of operations for the nine months ended September 30, 2003, and 2004 (the “Seller Financial Statements”). The Seller Financial Statements (including, in each case, any notes thereto) were prepared in accordance with GAAP (except, in the case of unaudited statements), applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto) and fairly presented in all material respects the consolidated results of their operations and their consolidated cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year end audit adjustments and to any other adjustments described therein). The Seller has not, since December 31, 2002, made any material change in the accounting practices or policies applied in the preparation of its financial statements.

     Section 3.9 Absence of Undisclosed Liabilities. The Seller and its Subsidiaries are not liable for or subject to any Liability, except (a) Liabilities adequately disclosed or reserved for in the most recent Seller Financial Statements (including the footnotes thereto) and not heretofore paid or discharged, (b) Liabilities under any contract, commitment or agreement specifically disclosed on the Seller Disclosure Schedule or (c) Liabilities incurred, consistent with past practice, in or as a result of the ordinary course of business of the Seller since the date of the most recent Seller Financial Statements and which would not have a Material Adverse Effect on the Seller.

     Section 3.10 Title to the Assets. Except as set forth in the Seller Disclosure Schedule or as would not have a Material Adverse Effect on the Seller, (a) the Seller and each of its Subsidiaries has good title to, or a valid leasehold interest in or license to use, the Assets and the property of the Business (real, personal, mixed, tangible and intangible) reflected on the most recent balance sheet contained in the Seller Financial Statements or acquired since the date thereof (other than cash and cash equivalents), free and clear of all Liens, except for Permitted Encumbrances, (b) with respect to the property and Assets it leases, the Seller is in compliance with such leases and all leases to which the Seller is a party are in full force and effect and constitute valid and binding obligations of the Seller and (c) the Assets, together with the Excluded Assets, constitute all of the properties, interests, assets and rights (real, personal, mixed, tangible and intangible) held for use or used in connection with the Business.

     Section 3.11 Actions and Proceedings. Except as set forth in the Seller Disclosure Schedule, there are no outstanding and unsatisfied orders, judgments, injunctions, awards or decrees issued by any Governmental Authority against or involving the Assets or the Business that, individually or in the aggregate, (i) would have a Material Adverse Effect on the Assets or the Business or involve the potential for loss in the aggregate in excess of $50,000 or (ii) materially impair the ability of the Seller to perform its obligations hereunder. Except as set forth in the Seller Disclosure Schedule, there are no actions, suits, claims, litigation or legal,

ASSET PURCHASE AGREEMENT — Page 12

administrative or arbitration proceedings or investigations (the “Claims”) pending or, to the Knowledge of the Seller, Threatened against or involving the Assets, the Business, or the Transactions that, individually or in the aggregate, would have a Material Adverse Effect on the Assets or the Business or materially impair the ability of the Seller to perform its obligations hereunder or consummate the Transactions.

     Section 3.12 Absence of Certain Changes. Except as disclosed in the Seller Disclosure Schedule, since December 31, 2003: (a) the Seller and its Subsidiaries have not incurred any material liability or obligation (indirect, direct or contingent) that would result in a Material Adverse Effect on the Seller, (b) the Seller and its Subsidiaries have not sustained any loss or interference with its business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Seller, (c) there has been no dividend or distribution of any kind declared, paid or made by the Seller on any class of its stock and (d) there has been no other Material Adverse Effect with respect to the Seller.

     Section 3.13 Environmental Matters. There are no Claims or remediation activities of any nature by any Governmental Authority or any other Person seeking to impose, or that could reasonably result in the imposition on the Seller or any of its Subsidiaries of any material liability or obligation arising or under any Environmental Laws pending, or to the Knowledge of the Seller, Threatened against the Seller or any of its Subsidiaries. To the Knowledge of the Seller, there is no reasonable basis for any such Claim or remediation activity that would impose any material liability or obligation on the Seller or any of its Subsidiaries.

     Section 3.14 Insurance. The Seller has delivered to the Parent true and complete copies of all insurance policies to which the Seller is a Party. All of such policies are valid, outstanding and enforceable and, taken together, provide adequate insurance coverage for the Assets and Business of the Seller, and there are no unpaid claims thereunder. All premiums due and payable under all such policies have been paid, and to the Knowledge of the Seller, Seller is in compliance in all material respects with the terms and conditions of all such policies.

     Section 3.15 No Brokers. Except as set forth on the Seller Disclosure Schedule, the Seller has incurred no obligation to any broker, investment banker or other Person for any brokerage fees, commissions or finders’ or similar fees in connection with the Transactions.

     Section 3.16 Investment Representations.

     (a) The Issued Securities are being acquired by the Seller for investment and for its own account and not with a view to the resale or distribution of any part thereof, and the Seller has no present intention of selling, granting any participation in, or otherwise distributing the Issued Securities, and has no contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third person, with respect to any of the Issued Securities, that in either case would result in a violation of state and federal securities laws.

     (b) The Seller understands that the Issued Securities are not registered under the Securities Act, and that the issuance of the Issued Securities by the Purchaser in reliance upon

ASSET PURCHASE AGREEMENT — Page 13

one or more exemptions from registration under the Securities Act and under exemptions from registration under the securities laws of the various states. The Seller understands that the Purchaser’s reliance on such exemptions will be based, in part, on the Seller’s representations in this Section 3.15.

     (c) The Seller understands that the issuance of the Issued Securities involves substantial risk. The Seller has experience as an investor in securities of the type and nature of the Issued Securities and acknowledges that the Seller is able to fend for itself, can bear the economic risk of its investment in the Issued Securities and has such knowledge and experience in financial or business matters that the Seller is capable of evaluating the merits and risks of this investment in the Issued Securities and protecting its own interests in connection with this investment.

     (d) The Seller is an institutional “accredited investor” within the meaning of Regulation D promulgated under the Securities Act. The Seller has received a copy of this Agreement and all documents and instruments contemplated hereby and has read and understands the respective contents thereof. The Seller has had the opportunity to ask questions of the Purchaser and has received answers to such questions from the Purchaser. The Seller has carefully reviewed and evaluated these documents and understands the risks and other considerations relating to the issuance of the Issued Securities to Seller.

     Section 3.17 Taxes, Tax Returns.

     (a) The Seller has delivered to the Parent copies of the federal income Tax Returns of the Seller for each of the last three fiscal years and all schedules and exhibits thereto. Except as set forth on the Seller Disclosure Schedule, the Seller has duly and timely filed in correct form all federal, state and local Tax Returns required to be filed by it on or prior to the date hereof (all such returns to the Knowledge of the Seller being accurate and complete in all material respects) and, to the Knowledge of the Seller, has duly paid or made provision for the payment of all Taxes and other governmental charges that have been incurred or are due or claimed to be due from them by any Governmental Body (including those due in respect of their properties, income, business, capital stock, franchises, licenses, sales and payrolls) other than Taxes or other charges (i) which are not yet delinquent or are being contested in good faith and set forth in the Seller Disclosure Schedule, (ii) have not been finally determined or (iii) that would not have a Material Adverse Effect on the Seller. The liabilities and reserves for Taxes in the Seller Financial Statements are sufficient to the Knowledge of the Seller, in the aggregate for the payment of all unpaid federal, state and local Taxes, whether or not disputed or accrued, for the period ended September 30, 2004, or for any year or period prior thereto, and for which the Seller may be liable in its own right or as transferee of the assets of, or successor to, any corporation, person, association, partnership, joint venture or other entity.

     (b) To the Knowledge of the Seller, (i) proper and accurate amounts have been withheld by the Seller from its employees and others for all prior periods in compliance in all material respects with the tax withholding provisions of applicable federal, state and local laws and regulations, and proper due diligence steps have been taken in connection with back-up withholding, (ii) federal, state and local Tax Returns which are accurate and complete in all material respects have been filed by the Seller for all periods for which Tax Returns were due

ASSET PURCHASE AGREEMENT — Page 14

with respect to income tax withholding, Social Security and unemployment Taxes and (iii) the amounts shown on such Tax Returns to be due and payable have been paid in full, or adequate provision therefore has been included by the Seller in the most recent Seller Financial Statements.

     Section 3.18 Real Property.

     (a) The Seller Disclosure Schedule sets forth a complete and accurate list and description of all of the Real Property. With respect to each parcel of Real Property, the Seller has made available to the Parent true, correct and complete copies of each mortgage or other encumbrance thereon reflected in a written instrument, and any title policies or commitments and surveys in the Seller’s possession with respect to such parcel.

     (b) The Seller (i) has fee simple title to all of the Real Property owned by the Seller and (ii) the Seller occupies, uses and enjoys such owned Real Property free and clear of all liens, restrictions, claims, charges, security interests, easements or other encumbrances of any nature whatsoever, including any mortgages, leases, chattel mortgages, conditional sales contracts, collateral security arrangements and other title or interest retention arrangements, subject only to the exceptions set forth on the Seller Disclosure Schedule.

     (c) Except as set forth on the Seller Disclosure Schedule, no owned Real Property is presently subject to (i) any governmental decree or order (or Threatened or proposed order known to the Seller) to be sold or taken by public authority or (ii) any rights of way, building use restrictions, exceptions, variances, reservations or limitations of any nature whatsoever, not of record.

     Section 3.19 Personal Property.

     (a) The Seller Disclosure Schedule sets forth a complete and accurate list and description of all the Seller’s Personal Property, the net book value of which, as properly reflected in the books and records of the Seller, on an individual, item-by-item basis, exceeds $10,000.

     (b) The Seller (i) has good and valid title to all the personal and mixed, tangible and intangible properties and assets that it purports to own, and all the personal properties and assets reflected, but not shown as leased or encumbered, on the most recent balance sheet contained in the Seller Financial Statements and (ii) except as set forth on the Seller Disclosure Schedule, owns such personal property free and clear of all title defects or objections, liens, restrictions, claims, charges, security interests, easements, or other encumbrances of any nature whatsoever, including any mortgages, leases, chattel mortgages, conditional sales contracts, collateral, security arrangements and other title or interest retention arrangements.

     (c) The Seller Disclosure Schedule sets forth a complete and accurate list of all leases (including any capital leases) and lease-purchase arrangements (other than Real Property leases) pursuant to which the Seller leases personal property from others and which (i) require the Seller to pay, for rent and any obligatory improvements, more than $5,000 in any single year or $5,000 during the entire term of such lease or lease-purchase arrangement (including any

ASSET PURCHASE AGREEMENT — Page 15

renewal term that the Seller may not avoid by refusing to renew in its sole discretion) or (ii) provide for a purchase option for a price of more than $5,000.

     Section 3.20 Employees; Employee Benefits.

     (a) The Seller Disclosure Schedule sets forth the names, job titles and current base compensation (broken down by category, e.g., salary, bonus, commission) of all employees of the Seller (the “Employees”).

     (b) Except as set forth on the Seller Disclosure Schedule, the Seller is in material compliance with all federal and state laws respecting employment and employment practices, terms and conditions of employment, wages and hours. To the Knowledge of the Seller, Seller is not and has not been engaged in any unfair labor practice, and no unfair labor practice complaint against the Seller is pending before the National Labor Relations Board. To the Knowledge of the Seller, there is no labor strike or other labor trouble pending, being Threatened against, or affecting the Seller. To the Knowledge of the Seller, there are presently no attempts to organize non-union employees.

     (c) The Seller Disclosure Schedule sets forth a complete and accurate list of all, to the extent presently in effect, plans, agreements, arrangements, commitments, policies or understandings of any kind (whether written or oral) (i) which relate to employee benefits, (ii) which pertain to or cover present or former employees, retirees, directors, managers or independent contractors (or their beneficiaries, dependents or spouses) of the Seller or its predecessors in interest and (iii) which are currently or expected to be adopted, maintained by, sponsored by, or contributed to by the Seller or any employer which, under Section 414 of the Code, would constitute a single employer with the Seller (a “Seller Affiliate”) or as to which the Seller has any ongoing liability or obligation whatsoever (collectively, “Employee Benefit Plans”), including all: (1) employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) all other deferred compensation, early retirement, incentive, profit-sharing, thrift, stock ownership, stock appreciation rights, bonus, stock option, stock purchase, welfare or vacation, or other nonqualified benefit plans or arrangements and (3) trusts, group annuity contracts, insurance policies or other funding media for the plans and arrangements described hereinabove. For purposes of this Agreement, the terms “ERISA” and the “Code” shall include reference to the appropriate regulations promulgated thereunder, all as amended from time to time.

     (d) Except as set forth on the Seller Disclosure Schedule, the Seller, its predecessors in interest and all Seller Affiliates have complied in all material respects with all of their respective obligations with respect to each Employee Benefit Plan (including filing or distributing all reports or notices required by ERISA or the Code and complying with all requirements of Part 6 of ERISA and Code Section 4980B) and have maintained each Employee Benefit Plan in material compliance with all applicable laws and regulations (including ERISA and the Code). Each Employee Benefit Plan, which is an “employee pension benefit plan” as defined in Section 3(2) of ERISA and intended to qualify under Code Sections 401(a) and 501(a) (“Retirement Plans”), has received a favorable determination letter from the Internal Revenue Service, and the Internal Revenue Service has not Threatened or taken any action to revoke any favorable determination letter issued with respect to any such Retirement Plan. No amendment

ASSET PURCHASE AGREEMENT — Page 16

to any Retirement Plan or related trust has been adopted since receipt of the most recent determination letter issued with respect to the Retirement Plan or related trust that would cause disqualification of the Retirement Plan or related trust, and no failure to adopt timely amendments to any Retirement Plan as required under ERISA or the Code would cause such disqualification. For purposes of this Section any failure to comply with the tax qualification standards of Code Section 401(a) with respect to any Retirement Plan shall be deemed to be “material”.

     (e) Neither the Seller, its predecessors in interest nor any Seller Affiliate has at any time maintained, sponsored or contributed to any “pension plan” as defined in ERISA Section 3(2) which is subject to Title IV of ERISA or contributed to any such pension plan which is a multiemployer plan as defined in ERISA Section 3(37)(A) and 4001(a)(3).

     Section 3.21 Ongoing Negotiations. Seller is currently in negotiations with and is using, and will continue to use, commercially reasonable efforts to enter into agreements to perform construction and set-up services for Third Generation Wireless Systems to be installed as a contractor for Sprint Corp. and as a subcontractor for Nextel Communications, Inc.

     Section 3.22 Material Contracts. Except as set forth in the list of material contracts set forth in the Seller Disclosure Schedule, Seller is not a party to or bound by any:

     (a) employment agreement (other than those that are terminable by the Seller without cost or penalty upon 60 days’ or less notice);

     (b) operating or capital lease, whether as lessor or lessee, with respect to any real property;

     (c) contract, whether as licensor or licensee, for the license of any patent, know-how, trademark, trade name, service mark, copyright or other intangible asset (other than mass-market software);

     (d) loan or guaranty agreement, indenture or other instrument, contract or agreement under which any money has been borrowed or loaned or any note, bond or other evidence of indebtedness has been issued;

     (e) mortgage, security agreement, conditional sales contract, capital lease or similar agreement which effectively creates a lien on any assets of the Seller;

     (f) contract restricting the Seller in any material respect from engaging in business or from competing with any other parties;

     (g) plan of reorganization;

     (h) partnership, joint venture or similar agreement;

     (i) collective bargaining agreement;

     (j) “material contract” (as defined in Item 601(b)(10) of Regulation S-K of the SEC);

ASSET PURCHASE AGREEMENT — Page 17

     (k) contract or commitment (whether written or oral) which continues for a period of more than six months from the date hereof or requires payments, in the aggregate, in excess of $50,000;

     (l) investment banking or other professional service agreement;

     (m) agreement regarding acquisitions or dispositions of a material portion of the Parent’s assets other than in the ordinary course of the Seller’s business;

     (n) outstanding loan or loan commitment to any Person or any factoring, credit line or subordination agreement; or

     (o) any power of attorney outstanding or any contract, commitment or Liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, cosigner, endorser, co-maker, indemnitor in respect of the contract or commitment of any other Person.

All of the foregoing are collectively referred to as the “Seller Material Contracts.” To the extent Seller Material Contracts are evidenced by documents, true and complete copies thereof (and summaries of oral Seller Material Contracts) have been delivered or made available to the Parent. Each Material Contract is in full force and effect. The Seller and, to the best of the Seller’s Knowledge, each other party thereto have in all material respects performed all of the obligations required to be performed by them to date, have received no notice of default and are not in default (with due notice or lapse of time or both) under any Seller Material Contract.

     Section 3.23 Full Disclosure. No representation or warranty made in this Article 3, and no certification furnished or to be furnished by the Seller pursuant to this Agreement contains or will contain any untrue statement of a material fact or omits, or will omit, to state a material fact necessary to make the statements contained herein or therein not misleading.

ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PARENT

     The Purchaser and the Parent, jointly and severally, hereby represent and warrant to the Seller that the following are true, correct and complete as of the Closing hereof regardless of what investigations, if any, the Seller shall have made prior hereto:

     Section 4.1 Organization. Each of the Parent and the Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Purchaser has the full corporate power and authority to own and lease all of the properties and assets it now owns and leases and to carry on its business as now being conducted. Each of the Parent and the Purchaser is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease by it or the nature of the business transacted by it makes such qualification necessary, except where the failure to qualify would not have a Material Adverse Effect.

     Section 4.2 Capitalization. (a) The authorized capital stock of the Parent consists of (i) 200,000,000 shares of Parent Common Stock, par value $0.00002, and (ii) 25,000,000 shares of

ASSET PURCHASE AGREEMENT — Page 18

Parent Preferred Stock, par value $0.00002, of which (A) 1,200 shares have been designated as Series A Convertible Preferred Stock, (B) 25,000 shares have been designated as Series B Convertible Preferred Stock, (C) 30,000 shares have been designated as Series C Convertible Preferred Stock, and (D) 50,000 shares have been designated as Series D Convertible Preferred Stock. As of December 31, 2004, (i) 52,323,701 shares of Parent Common Stock, (ii) 0 shares of Parent Series A Convertible Preferred Stock, (iii) 4,500 shares of Parent Series B Convertible Preferred Stock, (iv) 0 shares of Parent Series C Convertible Preferred Stock, (v) 9,287 shares of Parent Series D Convertible Preferred Stock, (vi) options to purchase an aggregate of 12,998,125 shares of Parent Common Stock (the “Parent Options”) (vii) and warrants to purchase an aggregate of 110,121 shares of Parent Common Stock (the “Parent Warrants”) were issued and outstanding. As of December 31, 2004, an aggregate of 1,679,373 shares of Parent Common Stock are issuable upon the conversion of the outstanding shares of Parent Preferred Stock and the exercise of the Parent Options and the Parent Warrants (the “Reserved Parent Common Stock”). The Parent Disclosure Schedule contains a schedule of all Parent Options and Parent Warrants detailing (i) the holders thereof, (ii) the number of shares of Parent Common Stock subject thereto, (iii) the exercise prices thereof and (iv) the expiration dates thereof. Except as described in the Parent Disclosure Schedule, since December 31, 2004, the Parent has not issued any shares of its capital stock or any additional options or warrants, and has not repurchased or redeemed any shares of its capital stock or any Parent Options or Parent Warrants. All issued and outstanding shares of capital stock of the Parent have been duly authorized and validly issued and are fully paid and non-assessable. All of the Reserved Parent Common Stock, when issued upon the conversion of the Parent Preferred Stock and the exercise of the Parent Options and the Parent Warrants, will be duly and validly authorized and issued and fully paid and nonassessable. None of (i) the outstanding shares of Parent Common Stock and Parent Preferred Stock, (ii) the Parent Options and (iii) the Parent Warrants has been issued, and none of the Reserved Parent Common Stock and the Issued Securities will be issued, in violation of the rights of first refusal, preemptive rights or other comparable rights of any Person. The outstanding shares of Parent Common Stock and Parent Preferred Stock have been issued, and any shares of Reserved Parent Common Stock which may be issued upon the conversion of the Parent Preferred Stock or the exercise of Parent Stock Options and Parent Warrants and the Issued Securities, will be issued, in compliance in all material respects with all applicable Federal and state laws and regulations, including securities laws and regulations.

     (b) Except as described in the Parent Disclosure Schedule, there are no existing agreements, subscriptions, options, warrants, calls, commitments, trusts (voting or otherwise), or rights of any kind whatsoever granting to any Person any interest in or the right to purchase or otherwise acquire from the Parent or granting to the Parent any interest in or the right to purchase or otherwise acquire from any Person, at any time, or upon the occurrence of any stated event, any securities of the Parent, whether or not presently issued or outstanding, nor are there any outstanding securities of the Parent or any other entity which are convertible into or exchangeable for other securities of the Parent, nor are there any agreements, subscriptions, options, warrants, calls, commitments or rights of any kind granting to any Person any interest in or the right to purchase or otherwise acquire from the Parent or any other Person any securities so convertible or exchangeable, nor, to the Knowledge of the Parent, are there any proxies, agreements or understandings with respect to the voting of any voting securities of the Parent or the direction of the business operations or conduct of the Parent or any of its Subsidiaries.

ASSET PURCHASE AGREEMENT — Page 19

     Section 4.3 Authority Relative to this Agreement. Each of the Purchaser and the Parent has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall, as of the Closing, have been duly and validly authorized by the respective Boards of Directors of the Parent and the Purchaser and the stockholder of the Purchaser, and no other corporate proceedings on the part of the Parent or the Purchaser are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement has been duly and validly executed and delivered by the Parent and the Purchaser and, assuming this Agreement constitutes a legal, valid and binding obligation of the Seller, this Agreement constitutes a legal, valid and binding agreement of the Parent and the Purchaser, enforceable against each of the Parent and the Purchaser in accordance with and subject to its terms and conditions, except insofar as its enforcement may be limited by (a) bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (b) equitable principles limiting the availability of equitable remedies.

     Section 4.4 Consents and Approvals. Except as otherwise required by this Agreement or the Operative Documents, the execution, delivery and performance by the Purchaser and the Parent of this Agreement and the Operative Documents and the consummation of the Transactions by it requires no Consent or Order of, by or in respect of, any Governmental Body or other Person, except as has been received by the Purchaser or the Parent on or prior to the Closing.

     Section 4.5 Licenses; Permits. The Parent possesses all of the Permits required by Applicable Law, and these Permits constitute all of the Permits necessary for the Parent to own, use, operate and lease its property and assets and to carry on its business as it is now being conducted.

     Section 4.6 No Violations. Neither the execution, delivery or performance of this Agreement or the Operative Documents by the Purchaser or by the Parent, nor the consummation by the Purchaser or the Parent of the Transactions will (a) conflict with or result in any breach or violation of any provision of the Certificate of Incorporation or Bylaws of the Purchaser or the Certificate of Incorporation or Bylaws of the Parent, (b) result in a default, or give rise to any right of termination, cancellation or acceleration or loss of any material benefit under any of the provisions of any note, bond, mortgage, indenture, license, trust, agreement, lease or other instrument or obligation to which the Purchaser or the Parent is a party or by which the Purchaser or the Parent may be bound, (c) violate any Order, Applicable Law or Permit applicable to the Purchaser or to the Parent or (d) violate any noncompetition or similar arrangement.

     Section 4.7 Compliance with Law. The Parent has owned and operated its property and assets in compliance with the provisions and requirements of all laws, orders, regulations, rules and ordinances issued or promulgated by all Governmental Authorities having jurisdiction with respect thereto, except where the failure to own and operate such properties and assets in compliance with such provisions and requirements would not reasonably be expected to have a Material Adverse Effect on the Parent or the Purchaser. All Governmental Approvals with regard to the ownership or operation by the Parent and its Subsidiaries of their respective

ASSET PURCHASE AGREEMENT — Page 20

property and assets have been obtained, except such Governmental Approvals that, if not obtained, would not, either individually or in the aggregate, have a Material Adverse Effect. No violation exists in respect of such Governmental Approvals, except for any violations thereof by the Parent that would not, either individually or in the aggregate, have a Material Adverse Effect.

     Section 4.8 SEC Reports. Since January 1, 2003, the Parent has timely filed all required forms, reports and documents (the “SEC Reports”) with the SEC required to be filed by it pursuant to the federal securities laws and the SEC rules and regulations thereunder. The Parent’s SEC Reports, including any financial statements or schedules included therein, after giving effect to any amendment or restatement thereof (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (b) complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, and the rules and interpretive releases promulgated thereunder. The audited consolidated financial statements and unaudited consolidated interim financial statements of the Parent and its consolidated Subsidiaries included or incorporated by reference in the Parent’s SEC Reports at the time (a) filed complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, (b) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), and (c) fairly present (subject, in the case of unaudited interim statements, to normal, year-end adjustments) the consolidated financial position of the Parent and its consolidated Subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended in conformity with GAAP. The Parent has not, since June 30, 2002, made any material change in the accounting practices or policies applied in the preparation of its financial statements.

     Section 4.9 Undisclosed Liabilities. The Parent and its Subsidiaries are not liable for or subject to any Liability, except (a) Liability adequately disclosed or reserved for in the most recent consolidated balance sheet of the Parent and its Subsidiaries contained in the Parent’s SEC Reports and not heretofore paid or discharged, (b) Liability under any contract, commitment or agreement specifically disclosed on the Parent Disclosure Schedule or (c) Liability incurred, consistent with past practice, in or as a result of the ordinary course of business of the Parent and its Subsidiaries since the date of its most recent SEC Reports and which would not have Material Adverse Effect on the Parent.

     Section 4.10 Title to the Parent’s Assets. Except as set forth in the Parent Disclosure Schedule or as would not have a Material Adverse Effect on the Parent, the Parent and each of its Subsidiaries has good title to or a valid leasehold interest in or a license to use its respective assets and property reflected on the most recent balance sheet contained in the Parent’s SEC Reports or acquired since the date thereof (other than cash and cash equivalents) free and clear of all Liens, except for Permitted Encumbrances.

     Section 4.11 Actions and Proceedings. Except as set forth in the Parent Disclosure Schedule, there are no outstanding and unsatisfied orders, judgments, injunctions, awards or decrees issued by any Governmental Authority against or involving the Parent that, individually

ASSET PURCHASE AGREEMENT — Page 21

or in the aggregate, (i) would have a Material Adverse Effect on the Parent or the Purchaser or involve the potential for loss in the aggregate in excess of $50,000 or (ii) materially impair the ability of the Parent to perform its obligations hereunder. Except as set forth in the Parent Disclosure Schedule, there are no Claims pending or, to the Knowledge of the Parent, Threatened against or involving the Parent, the Purchaser or the Transactions that, individually or in the aggregate, would have a Material Adverse Effect on the Parent or the Purchaser or materially impair the ability of the Parent or the Purchaser to perform its respective obligations hereunder or consummate the Transactions. The Parent SEC Reports set forth a list of all outstanding actions, suits, litigation or legal, administrative, governmental or arbitration proceedings or formal investigations to which the Parent or any of its Subsidiaries is a party, excluding bankruptcies and deficiency collection matters to which any of the Parent Subsidiaries is a party and which are set forth on the Parent Disclosure Schedule.

     Section 4.12 Absence of Certain Changes. Except as disclosed in the Parent Disclosure Schedule and the Parent’s SEC Reports, since December 31, 2003: (a) the Parent and its Subsidiaries have not incurred any material liability or obligation (indirect, direct or contingent) that, individually or in the aggregate, would result in a Material Adverse Effect on the Parent, (b) the Parent and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Parent, (c) there has been no dividend or distribution of any kind declared, paid or made by the Parent on any class of its stock except for the dividends to stockholders of the Parent paid during 2004 and disclosed in the Parent’s SEC Reports and prior to the date of this Agreement and (d) there has been no other Material Adverse Effect with respect to the Parent.

     Section 4.13 Environmental Matters. There are no Claims or remediation activities of any nature by any Governmental Authority or any other Person seeking to impose, or that could reasonably result in the imposition on the Parent or any of its Subsidiaries of any material liability or obligation arising under any Environmental Laws, pending or, to the Knowledge of the Parent, Threatened against the Parent or any of its Subsidiaries. To the Knowledge of the Parent, there is no reasonable basis for any such Claim or remediation activity that would impose any material liability or obligation on the Parent or any of its Subsidiaries.

     Section 4.14 Insurance. The Parent has delivered to the Seller true and complete copies of all insurance policies to which the Parent is a Party. All of such policies are valid, outstanding and enforceable and, taken together, provide adequate insurance coverage for the assets and property of the Parent, and there are no unpaid claims thereunder. All premiums due and payable under all such policies have been paid, and to the Knowledge of the Parent, the Parent is in compliance in all material respects with the terms and conditions of all such policies.

     Section 4.15 Brokers. No broker, investment banker or other Person, other than Oasis Capital Partners, LLC (“Oasis”), the fees and expenses of which have been paid by the Parent, is entitled to any broker’s, finder’s or other similar fee or commission in connection with the Transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Parent or the Purchaser. However, Oasis is also entitled to receive, as a success fee, two-year warrants to purchase up to 1% of the Parent Common Stock issued and outstanding after the consummation of the Transactions at an exercise price equal to the average of the mean between

ASSET PURCHASE AGREEMENT — Page 22

the closing bid and ask prices for the Parent’s common stock for the fifteen business days immediately subsequent to the closing date of the Transactions. There is no agreement executed by the Parent or the Purchaser which will obligate the Parent or the Purchaser or any of their successors or Affiliates to pay any brokerage or finder’s fee in the future with respect to any type of commercial, corporate, financial, acquisition, banking, borrowing or other business transaction.

     Section 4.16 Funded Debt. Except as set forth in (a) the consolidated balance sheet of the Parent and its consolidated Subsidiaries as of September 30, 2004, and the footnotes thereto set forth in the Parent’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2004, or (b) the Parent Disclosure Schedule, neither the Parent nor any of its Subsidiaries has any term or funded debt, debt to banks or debt to Affiliates. No event has occurred that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default by the Parent or any of its Subsidiaries, which has not been cured or waived under any agreement or other instrument relating to any funded debt, bank loan or debt to Affiliates.

     Section 4.17 Taxes, Tax Returns. (a) The Parent has delivered to the Seller copies of the federal income Tax Returns of the Parent for each of the last three fiscal years and all schedules and exhibits thereto. Except as set forth on the Parent Disclosure Schedule, the Parent has duly and timely filed in correct form all federal, state and local Tax Returns required to be filed by it on or prior to the date hereof (all such Tax Returns to the Knowledge of the Parent being accurate and complete in all material respects) and, to the Knowledge of the Parent, has duly paid or made provision for the payment of all Taxes and other governmental charges that have been incurred or are due or claimed to be due from them by any Governmental Body (including those due in respect of their properties, income, business, capital stock, franchises, licenses, sales and payrolls) other than Taxes or other charges (i) which are not yet delinquent or are being contested in good faith and set forth in the Parent Disclosure Schedule, (ii) have not been finally determined or (iii) that would not have a Material Adverse Effect on the Parent. The liabilities and reserves for Taxes in the Parent’s financial statements contained in the Parent SEC Reports are sufficient to the Knowledge of the Parent in the aggregate for the payment of all unpaid federal, state and local Taxes, whether or not disputed or accrued, for the period ended September 30, 2004, or for any year or period prior thereto, and for which the Parent may be liable in its own right or as transferee of the assets of, or successor to, any corporation, person, association, partnership, joint venture or other entity.

     (b) To the Knowledge of the Parent, (i) proper and accurate amounts have been withheld by the Parent from its employees and others for all prior periods in compliance in all material respects with the tax withholding provisions of applicable federal, state and local laws and regulations, and proper due diligence steps have been taken in connection with back-up withholding, (ii) federal, state and local Tax Returns which are accurate and complete in all material respects have been filed by the Parent for all periods for which Tax Returns were due with respect to income tax withholding, Social Security and unemployment Taxes and (iii) the amounts shown on such Tax Returns to be due and payable have been paid in full, or adequate provision therefore has been included by the Parent in the most recent Parent SEC Reports.

ASSET PURCHASE AGREEMENT — Page 23

     Section 4.18 Parent’s Net Cash Assets. The Parent’s Net Cash Assets are as reflected on the Parent Disclosure Schedule.

     Section 4.19 Employee; Employee Benefits.

     (a) The Parent Disclosure Schedule sets forth the names, job titles and current base compensation (broken down by category, e.g., salary, bonus, commission) of all employees of the Parent (the “Parent Employees”).

     (b) Except as set forth on the Parent Disclosure Schedule, the Parent is in material compliance with all federal and state laws respecting employment and employment practices, terms and conditions of employment, wages and hours. To the Knowledge of the Parent, the Parent is not and has not been engaged in any unfair labor practice, and no unfair labor practice complaint against the Parent is pending before the National Labor Relations Board. To the Knowledge of the Parent, there is no labor strike or other labor trouble pending, being Threatened against, or affecting the Parent. To the Knowledge of the Parent, there are presently no attempts to organize non-union employees.

     (c) The Parent Disclosure Schedule sets forth a complete and accurate list of all, to the extent presently in effect, plans, agreements, arrangements, commitments, policies or understandings of any kind (whether written or oral) (i) which relate to employee benefits, (ii) which pertain to or cover present or former employees, retirees, directors, managers or independent contractors (or their beneficiaries, dependents or spouses) of the Parent or its predecessors in interest and (iii) which are currently or expected to be adopted, maintained by, sponsored by, or contributed to by the Parent or any employer which, under Section 414 of the Code, would constitute a single employer with the Parent (a “Parent Affiliate”) or as to which the Parent has any ongoing liability or obligation whatsoever (collectively, “Parent Employee Benefit Plans”), including all: (1) employee benefit plans as defined in Section 3(3) of ERISA, (2) all other deferred compensation, early retirement, incentive, profit-sharing, thrift, stock ownership, stock appreciation rights, bonus, stock option, stock purchase, welfare or vacation, or other nonqualified benefit plans or arrangements and (3) trusts, group annuity contracts, insurance policies or other funding media for the plans and arrangements described hereinabove.

     (d) Except as set forth on the Parent Disclosure Schedule, the Parent, its predecessors in interest and all Parent Affiliates have complied in all material respects with all of their respective obligations with respect to each Parent Employee Benefit Plan (including filing or distributing all reports or notices required by ERISA or the Code and complying with all requirements of Part 6 of ERISA and Code Section 4980B) and have maintained each Parent Employee Benefit Plan in material compliance with all applicable laws and regulations (including ERISA and the Code). Each Parent Employee Benefit Plan, which is an “employee pension benefit plan” as defined in Section 3(2) of ERISA and intended to qualify under Code Sections 401(a) and 501(a) (“Parent Retirement Plans”), has received a favorable determination letter from the Internal Revenue Service, and the Internal Revenue Service has not Threatened or taken any action to revoke any favorable determination letter issued with respect to any such Parent Retirement Plan. No amendment to any Parent Retirement Plan or related trust has been adopted since receipt of the most recent determination letter issued with respect to the Parent Retirement Plan or related trust that would cause disqualification of the Parent Retirement Plan

ASSET PURCHASE AGREEMENT — Page 24

or related trust, and no failure to adopt timely amendments to any Parent Retirement Plan as required under ERISA or the Code would cause such disqualification. For purposes of this Section any failure to comply with the tax qualification standards of Code Section 401(a) with respect to any Parent Retirement Plan shall be deemed to be “material”.

     (e) Neither the Parent, its predecessors in interest nor any Parent Affiliate has at any time maintained, sponsored or contributed to any “pension plan” as defined in ERISA Section 3(2) which is subject to Title IV of ERISA or contributed to any such pension plan which is a multiemployer plan as defined in ERISA Section 3(37)(A) and 4001(a)(3).

     Section 4.20 Material Contracts. Except as set forth in the list of material contracts in Part IV, Item 15 of the Parent’s most recent Form 10-K or the Parent Disclosure Schedule, Parent is not a party to or bound by any:

     (a) employment agreement (other than those that are terminable by the Parent without cost or penalty upon 60 days’ or less notice);

     (b) operating or capital lease, whether as lessor or lessee, with respect to any real property;

     (c) contract, whether as licensor or licensee, for the license of any patent, know-how, trademark, trade name, service mark, copyright or other intangible asset (other than mass-market software);

     (d) loan or guaranty agreement, indenture or other instrument, contract or agreement under which any money has been borrowed or loaned or any note, bond or other evidence of indebtedness has been issued;

     (e) mortgage, security agreement, conditional sales contract, capital lease or similar agreement which effectively creates a lien on any assets of the Parent;

     (f) contract restricting the Parent in any material respect from engaging in business or from competing with any other parties;

     (g) plan of reorganization;

     (h) partnership, joint venture or similar agreement;

     (i) collective bargaining agreement;

     (j) “material contract” (as defined in Item 601(b)(10) of Regulation S-K of the SEC);

     (k) contract or commitment (whether written or oral) which continues for a period of more than six months from the date hereof or requires payments, in the aggregate, in excess of $50,000;

     (l) investment banking or other professional service agreement;

ASSET PURCHASE AGREEMENT — Page 25

     (m) agreement regarding acquisitions or dispositions of a material portion of the Parent’s assets other than in the ordinary course of the Parent’s business;

     (n) outstanding loan or loan commitment to any Person or any factoring, credit line or subordination agreement; or

     (o) any power of attorney outstanding or any contract, commitment or Liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, cosigner, endorser, co-maker, indemnitor in respect of the contract or commitment of any other Person.

     All of the foregoing are collectively referred to as the “Parent Material Contracts.” To the extent Parent Material Contracts are evidenced by documents, true and complete copies thereof (and summaries of oral Parent Material Contracts) have been delivered or made available to the Seller. Each Material Contract is in full force and effect. The Parent and, to the best of the Parent’s Knowledge, each other party thereto have in all material respects performed all of the obligations required to be performed by them to date, have received no notice of default and are not in default (with due notice or lapse of time or both) under any Parent Material Contract.

     Section 4.21 Full Disclosure. When taken together with the Parent’s SEC Reports, no representation or warranty made in this Article 4, and no certification furnished or to be furnished by the Parent or the Purchaser pursuant to this Agreement contains or will contain any untrue statement of a material fact or omits, or will omit, to state a material fact necessary to make the statements contained herein or therein not misleading.

ARTICLE 5.
SELLER CLOSING OBLIGATIONS

     At the Closing, the Seller shall deliver to the Parent or otherwise take the following actions, any of which may be waived by the Parent in the Parent’s sole discretion.

     Section 5.1 Closing Documents.

     (a) This Agreement, fully executed by the Seller.

     (b) The Bill of Sale.

     (c) The Consents set forth on Section 5.1(c) of the Seller Disclosure Schedule.

     (d) The Seller’s Disclosure Schedule.

     (e) The Voting Agreement, fully executed by the Seller.

     (f) A certificate of its Secretary certifying true and correct copies of the Seller’s certificate of incorporation (as amended), bylaws (as amended), resolutions of its Board of Directors and stockholders authorizing this Agreement, and a Certificate of Good Standing from the Secretary of State of Delaware.

ASSET PURCHASE AGREEMENT — Page 26

     (h) An assignment and assumption agreement, in the form attached as Exhibit E (the “Assignment and Assumption Agreement”).

     Section 5.2 Other Actions. The Seller shall provide the names and all pertinent information to identify those individuals nominated by the Seller to the Parent’s Board of Directors, and the Parent’s Board of Directors shall take all action to appoint those individuals to the Parent’s Board of Directors as soon as practicable following the Closing.

ARTICLE 6.
PARENT AND PURCHASER CLOSING OBLIGATIONS

     At the Closing, the Parent and, where applicable, the Purchaser, shall deliver to the Seller or otherwise take the following actions, any of which may be waived by the Seller in the Seller’s sole discretion:

     Section 6.1 Closing Documents.

     (a) This Agreement, fully executed by each of the Parent and the Purchaser.

     (b) A written resignation, in form and substance reasonably satisfactory to the Seller, form each of the individuals serving as directors of the Parent as of the Closing Date, specifying that such director shall resign, as of the date of the filing of the Certificate of Amendment, as hereafter defined.

     (c) The Parent’s Disclosure Schedule.

     (d) The Voting Agreement, fully executed by all of the holders of the Series B Preferred Stock and Series D Preferred Stock and the Parent.

     (e) A certificate of the Secretary of the Parent certifying true and correct copies of the Parent’s certificate of incorporation (as amended), bylaws (as amended), resolutions of its Board of Directors authorizing this Agreement, and a Certificate of Good Standing from the Secretary of State of each of Delaware and Texas.

     (f) A certificate of the Secretary of the Purchaser certifying true and correct copies of the Purchaser’s certificate of incorporation( as amended), bylaws (as amended), resolutions of its Board of Directors and stockholders authorizing this Agreement, and a Certificate of Good Standing from the Secretary of State of Delaware.

     (g) The Assignment and Assumption Agreement.

     (h) Any consents required for the Parent to register shares of its Common Stock pursuant to Section 8.1(d), below.

     Section 6.2 Other Actions.

ASSET PURCHASE AGREEMENT — Page 27

     (a) The Parent shall file the Certificate of Designation for the Parent’s Series E Preferred Stock with the Delaware Secretary of State, and provide evidence to the Seller regarding same.

     (b) The Parent shall issue the Common Stock Consideration and the Preferred Stock Consideration to the Seller and provide stock certificates or book entries evidencing same.

     (c) The Parent or the Purchaser shall have entered into employment arrangements with Seller’s employees on terms acceptable to the Seller.

ARTICLE 7.
AMENDMENTS; WAIVER

     Section 7.1 Amendment. This Agreement may be amended only by means of an instrument in writing signed on behalf of all the Parties.

     Section 7.2 Extension; Waiver. The Parties hereto, by action taken by or on behalf of the respective Boards of Directors of the Seller, the Parent and the Purchaser, may (a) extend the time for the performance of any of the obligations or other acts of any other applicable Party hereto, (b) waive any inaccuracies in the representations and warranties contained herein by any other applicable Party or in any document, certificate or writing delivered pursuant hereto by an other applicable Party or (c) waive compliance with any of the agreements of any other applicable Party or with any conditions to its own obligations. Any agreement on the part of any other applicable Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party.

ARTICLE 8.
POST-CLOSING COVENANTS

     Section 8.1 Further Actions Required. The Parties agree to take the following actions at or following the Closing of the Transactions:

     (a) The Parent’s Board of Directors shall, as of the Closing, take all action necessary to appoint the three individuals listed on Schedule 8.1 to the offices set forth opposite their name and to authorize six (6) director places for the Parent’s Board of Directors.

     (b) The Parent shall file (i) a Form 8-K to report the change of control and material acquisition represented by the Transactions within four business days after the Closing, and (ii) a Form 8-K/A within 75 days after the Closing containing the audited financial statements of the Seller as required by such Form 8-K. The Seller shall cooperate fully in these filings, and shall provide, in consultation with legal counsel, adequate and accurate information about the Seller to enable the Parent to include in these filings the equivalent of Form 10 disclosure information about the consolidated operations of the Parent and the Seller.

     (c) The Parent shall file a Schedule 14A or 14C with the SEC as promptly as practicable after the Closing in connection with the Special Stockholders Meeting to approve the amendment to the Parent’s Certificate of Incorporation, in substantially the form attached hereto as Exhibit D (the “Certificate of Amendment”).

ASSET PURCHASE AGREEMENT — Page 28

     (d) At the Seller’s request, the Parent shall take, at its expense, all reasonably appropriate actions necessary to register as promptly as practicable the shares of the Parent’s common stock that is represented by the (i) Common Stock Consideration and (ii) the common stock for which the Preferred Stock Consideration shall be convertible into (the “Registrable Shares”) under the Securities Act; provided, if such action would cause the Parent to breach any obligation under any agreement which is in force and effect as of the Closing Date, the Parent shall use its best reasonable efforts to obtain any necessary waivers or consents or take any other action necessary to avoid such a breach, including registering the shares of the Parent capital stock held by the parties to such agreement, but shall not otherwise be obligated to register the Registrable Shares if such consents, waivers, or accommodations cannot be reasonably obtained.

ARTICLE 9.
MISCELLANEOUS

     Section 9.1 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person or Persons any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.

     Section 9.2 Survival. The representations and warranties in Articles 3 and 4 shall not survive the Closing. All covenants and other agreements set forth herein shall survive the Closing for a period of two years.

     Section 9.3 Entire Agreement; Assignment. This Agreement (a) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties or any of them with respect to the subject matter hereof and (b) shall not be assigned by operation of law or otherwise.

     Section 9.4 Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, each of which shall remain in full force and effect.

     Section 9.5 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be delivered personally, by telecopy, by overnight courier or sent by certified or registered mail, postage prepaid, and shall be deemed given when so delivered personally, or when so received by facsimile or courier, or if mailed, three calendar days after the date of mailing, as follows (or at such other address for a Party as shall be specified by like notice):

ASSET PURCHASE AGREEMENT — Page 29

     Section 9.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. All actions and Proceedings arising out of or relating to this Agreement shall be heard and determined in any state or federal court sitting in the State of Delaware.

     Section 9.7 Consent to Jurisdiction; Venue; No Trial by Jury. Each of the Parties irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, for the purpose of any action or Proceeding arising out of or relating to this Agreement, and each of the Parties irrevocably agrees that all claims in respect to such action or Proceeding shall be heard and determined exclusively in any Delaware state or federal court. Each of the Parties agrees that a final judgment in any action or Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the Parties irrevocably consents to the service of any summons and complaint and any other process in any action or Proceeding relating to the Transactions, on behalf of itself or its property, by the delivery of copies of such process to such Party in the same manner as notice is to be provided pursuant to Section 9.5. Nothing in this Section 9.7 shall affect the right of any Party hereto to serve legal process in any other manner permitted by law. Each Party acknowledges and agrees that any controversy, which may arise under this Agreement, is likely to involve complicated and difficult issues, and therefore, each Party hereby irrevocably and unconditionally waives any right such Party may have to a trial by jury in respect to any litigation directly or indirectly arising out of or relating to this Agreement or the transactions contemplated by this Agreement. Each Party certifies and acknowledges that (i) no Representative, agent or attorney of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each such Party understands and has considered the implications of this waiver, (iii) each such Party makes this waiver voluntarily and (iv) each such Party has been induced to enter into this Agreement by, among other things, the waivers and certifications in this Section 9.7.

ASSET PURCHASE AGREEMENT — Page 30

     Section 9.8 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

     Section 9.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement. A signed signature page telecopied by one Party to another Party shall be deemed to constitute an original.

     Section 9.10 Expenses. Except as otherwise provided herein, the Parent, the Purchaser and Seller shall bear and pay all costs and expenses incurred by it or on its behalf in connection with the transactions contemplated hereunder, including fees and expenses of its own financial or other consultants, investment bankers, accountants and counsel.

     Section 9.11 Performance by the Purchaser. The Parent agrees to cause the Purchaser to comply with its obligations hereunder and to cause the Purchaser to consummate the Transactions as contemplated herein.

     Section 9.12 Public Announcements. The Parent and the Seller will consult with each other before issuing any press release or otherwise making any public statements with respect to the existence of this Agreement or the Transactions and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by law or applicable regulation.

[signature page follows]

ASSET PURCHASE AGREEMENT — Page 31

     IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers as of the date first above written.

ASSET PURCHASE AGREEMENT — Page 32