Common use of Conditions to the Obligations of Parent and Merger Sub Clause in Contracts

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company Shares.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger are subject to the satisfaction (or, to the extent legally permissible, waiveror waiver by Parent in its sole discretion) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the The representations and warranties of the Company contained set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date with the same force and effect as if made on at and as of such date (except to the Closing Date except (y) those extent that such representations and warranties that address matters only as of a particular date refer specifically to an earlier date, in which case such representations and warranties shall remain have been true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to earlier date), except where the extent that failure of the representations and warranties to be so true and correct could not reasonably be expectedcorrect, individually or in the aggregate, aggregate has not had and would not reasonably be expected to have a Company Material Adverse Effect Effect; provided, that the representations and (iii) warranties set forth in Sections 3.1, 3.2 and 3.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the foregoing effect;effect of the foregoing. (b) the The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received all consents, waivers and approvals required in connection with a certificate dated the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 Closing Date signed on behalf of the Company Disclosure Scheduleby the chief executive officer or the chief financial officer of the Company to the effect of the foregoing. (c) There shall not have occurred any event, except those consentsoccurrence or change that has had, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have have, a Company Material Adverse Effect on the Company;Effect. (cd) there No Action shall not be pending any suit, proceeding or investigation: by a Governmental Entity (i) challenging seeking to prevent consummation of the Merger, (ii) seeking to impose any limitation on the right of Parent to control the Company and its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the consummation Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the Merger business or any assets of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or Parent or any of their respective Subsidiaries any damages that may be material or Affiliates, or to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on compel the Company or Parent; (d) there shall have not occurred Parent or any event of their respective Subsidiaries or change since the date Affiliates to dispose of or hold separate any portion of the Agreement that has had business or could reasonably be expected to have a Material Adverse Effect on assets of the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) or Parent or any of the issued and outstanding Company Sharestheir respective Subsidiaries or Affiliates.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Merger are is subject to the satisfaction (or, at or prior to the extent legally permissible, waiver) Effective Time of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder under this Agreement required to be performed by it at or prior to the Effective Time, and Parent shall have received a certificate signed on behalf of Company by a duly authorized officer of the Company to such effect. (iib) Each of the representations and warranties of the Company contained in this Agreement (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect), shall be true and correct correct, in all material respects each case as of the date of this Agreement and the Closing Date with the same force and effect Effective Time as if though made on and as of the Closing Date Effective Time, except (yi) for such failures, individually or in the aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) date, subject to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or qualifications in the aggregate, to have a Material Adverse Effect (i) above; and (iii) for changes expressly permitted as contemplated by the terms of this Agreement, and Parent shall have received a certificate signed on behalf of Company by the chief executive a duly authorized officer of the Company to the foregoing such effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company;. (c) From the date of this Agreement through the Effective Time, there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could shall not have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event change in the financial condition, business or change since the date operations of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and, that would constitute a Company Material Adverse Effect and (ii) shall not have occurred any change in the capitalization of the Company from that set forth in Section 4.2, other than as required by the terms of this Agreement. (d) Company shall have provided to Parent on the Closing Date, documentation evidencing Company’s compliance with its obligations set forth under Section 6.1(n). (e) Dissenting Shares The number of shares of Company Common Stock held by holders who either (i) have exercised their right to dissent and obtain payment for their shares or (ii) retain the ability to exercise such right to dissent and obtain payment shall comprise no more than fifteen percent (15%) not exceed 1.0% of the issued and outstanding shares of Company SharesCommon Stock.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions, any of which may be waived, in writing, exclusively by Parent: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the The representations and warranties of the Company contained and the Company Subsidiary set forth in this Agreement Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification, shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Mandatory Approvals Receipt Date with the same force and effect as if made on the Closing Date at and as of such date (except (y) those for representations and warranties that which address matters only as of a particular date specified date, which representations and warranties shall remain be true and correct as with respect to the specified date), except where the failure of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company;Company or the Company Subsidiary. Parent and Merger Sub shall have received a certificate dated as of the Mandatory Approvals Receipt Date signed by the Chief Executive Officer and Chief Financial Officer of the Company to the foregoing effect. (b) The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to the foregoing effect. (c) there Parent shall not have received opinions of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP and Meitar Liquornik Geva & Leshem ▇▇▇▇▇▇▇▇▇, counsel to the Company, dated the Effective Date in substantially the forms attached hereto as Exhibits E-1 and E-2, respectively. (d) The Company or the Company Subsidiary, as the case may be, shall have received all consents, authorizations or approvals from the governmental agencies referred to in Section 4.03 and Section 6.07, in each case in form and substance reasonably satisfactory to Parent, and no such consent, authorization or approval shall have been revoked. (e) The Stockholder Consents shall have been executed and delivered by the Stockholders listed on Annex A hereto and shall be pending in full force and effect. (f) Each of the Non-Competition and Non-Solicitation Agreements executed and delivered to Parent by the individuals listed on Annexes B-1 and B-2 on the date of this Agreement hereto shall be in full force and effect, and without any suitamendment thereto, proceeding or investigation: immediately prior to the Effective Time. (g) (i) challenging or seeking to restrain or prohibit the consummation At least 17 of the Merger or any total number of employees of the other transactions contemplated Company Subsidiary as of the date hereof shall continue to be employed by this Agreement; the Company Subsidiary in their respective positions as of the date hereof, including without limitation, (A) each of the individuals listed on Annex B-2 hereto that are employed by the Company Subsidiary and (B) ▇▇▇ ▇▇▇▇, and (ii) relating the individuals listed on Annex B-1 hereto employed by the Company shall continue to be employed by the Company in their respective positions as of the date hereof, and Parent shall have received a certificate signed by an officer of the Company to the Merger foregoing effect. (h) Parent shall have received certified certificates of incorporation and seeking to obtain from Parentbylaws, and good standing certificates in respect of the Company or any and the Company Subsidiary and certified board resolutions in respect of their respective Subsidiaries any damages that may be material the transactions contemplated hereby, all in form and substance reasonably satisfactory to Parent or Parent. (i) The amendments to the Company’s certificate of incorporation as set forth in Schedule 4.01(b) shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect. (j) The Company shall have delivered a certification pursuant to Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c), as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect signed by the Company and dated not more than 30 days prior to the stock Effective Time to the effect that the Company is not nor has it been within 5 years of the Surviving Corporation; or date of the certification a “United States real property holding corporation” as defined in Section 897 of the Code. (ivk) which, if adversely determined could have a No Material Adverse Effect on the Company or Parent;the Company Subsidiary shall have occurred prior to the Mandatory Approvals Receipt Date and be continuing. (dl) there The Company shall have not occurred any event or change since taken all actions required by Section 6.13(a) and Section 6.13(b). (m) Parent shall have received a certificate signed by the date Chief Financial Officer of the Company setting forth the Estimated Company Cash Amount pursuant to Section 6.08. (n) The Company shall have paid all Transaction Expenses. Parent shall have received a certificate signed by the Chief Financial Officer of the Company setting forth the Transaction Expenses incurred with respect to this Agreement and the transactions contemplated hereby. The Company and Company’s legal counsel, auditors, investment bankers and financial advisors shall have agreed to the amounts set forth in such certificate. Any additional Transaction Expenses exceeding the amounts set forth in such certificate shall be considered a Loss pursuant to Section 10.02 and shall be paid out of the Escrow Fund in accordance with the provisions set forth in Section 10.02; provided that has had or could reasonably such Transaction Expenses shall be expected recoverable from the first dollar and shall not be subject to the Basket Amount. (o) The Company shall have a Material Adverse Effect on obtained the written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated to the Merger pursuant to Section 18.5 of the Software License and Development Agreement entered into as of June 30, 2003 by and between the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company Shares▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger under this Agreement are subject to the satisfaction (orsatisfaction, to at or before the extent legally permissibleClosing, waiver) of each of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the The representations and warranties of the Company United, Promark and a Majority of United Stockholders contained in this Agreement herein that are qualified as to materiality shall be true and correct in all material respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date date, and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure each of the representations and warranties to of United, Promark and a Majority of United Stockholders that are not so qualified shall be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect;all material respects. (b) the Company United, Promark and a Majority of United Stockholders shall have received performed and complied in all consentsmaterial respects with all covenants, waivers agreements, obligations and approvals conditions required in connection by this Agreement to be performed or complied with by United, Promark and a Majority of United Stockholders at or prior to the Closing. (c) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the transactions contemplated hereby in connection with the agreementsMerger, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (cb) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on Parent’s ability to exercise control over or manage United and Promark after the Company Closing or Parent; (dc) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on United or Promark. (d) On the Company and its SubsidiariesClosing Date, taken as there shall be no effective Order issued by a whole; andcourt of competent jurisdiction restraining or prohibiting the consummation of the Merger. (e) Dissenting Shares United, Promark and a Majority of United Stockholders shall comprise no more than fifteen percent (15%) have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized officer of United and Promark and by each of said United Stockholders certifying the fulfillment of the issued conditions specified in Sections 10.2(a), (b) and outstanding Company Shares(c). (f) United shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of United, certifying as to (i) United’s Governing Documents, (ii) resolutions with respect to the Merger adopted by United’s board of directors and shareholders attached thereto, and (iii) incumbency and signatures of the persons who have executed this Agreement and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement. (g) All documents to be delivered by United and to be delivered by the United Stockholders to Parent at the Closing shall be satisfactory in form and substance to Parent. (h) All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Parent counsel, in connection with (a) the execution and delivery by United, Promark and the United Stockholders of this Agreement or (b) the consummation by United and the United Stockholders of the Merger, and copies of all such Consents shall have been delivered to Parent. (i) Escrow Agent and the United Stockholders shall have executed and delivered triplicate originals of the Escrow Agreement to Parent. (j) The United Stockholders shall have delivered the Certificates and the United Optionholders shall have delivered the United Option Letters to the Escrow Agent. (k) Parent shall have completed the Merger Financing and received the proceeds thereof to enable Parent to deliver the Merger Consideration to the Escrow Agent.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: : (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (iib) the representations and warranties of the Company contained in this Agreement (i) that are qualified by materiality or Company Material Adverse Effect shall be true and correct at and as of the Effective Time as if made at and as of such time (except to the extent expressly made at and as of another specific date, in which case at and as of such specific date), and (ii) that are not qualified by materiality or Company Material Adverse Effect shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date with the same force and effect Effective Time as if made on the Closing Date except (y) those representations at and warranties that address matters only as of a particular date shall remain true and correct as of such date and time (z) (other than those in Section 4.2 of this Agreement) except to the extent that failure expressly made at and as of the representations another specific date, in which case at and warranties to be so true and correct could not reasonably be expectedas of such specific date), individually or in the aggregate, to have a Material Adverse Effect and (iiic) Parent shall have received a certificate signed by the chief an executive officer of the Company to the foregoing effect; , (bd) Parent or Merger Sub shall have received the proceeds from the Debt Financing, or alternative financing sufficient to consummate the Merger, (e) Holders of not more than 10% of the outstanding shares of Company Stock shall have exercised dissenters’ rights in accordance with Minnesota Law (excluding any holders who have exercised but have failed to properly perfect, or have otherwise lost, such rights prior to the Effective Time in accordance with Minnesota Law), (f) the Company shall have received all consents, waivers and approvals required in connection with delivered to Parent certified copies of (i) the consummation resolutions duly adopted by the Board of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 Directors of the Company Disclosure Scheduleauthorizing the execution, except those consentsdelivery and performance of this Agreement and the Merger and (ii) the resolutions duly adopted by the Company’s shareholders adopting this Agreement, waivers or approvals (g) the failure Company shall have delivered to obtain would not, individually or Parent a certificate of the Company to the effect that the Company is not a U.S. real property holding company substantially in the aggregateform attached hereto as Exhibit B hereto, reasonably be expected to have a and (h) no Company Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably and be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company Sharescontinuing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger Contemplated Transactions are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it fulfillment at or prior to the Effective TimeTime of each of the following additional conditions, any or all of which may be waived in writing in whole or part by Parent or Merger Sub to the extent permitted by applicable Law: (iia) the The representations and warranties of each of the Companies and the Shareholders contained herein qualified as to materiality or Company contained Material Adverse Effect shall be true and correct in this Agreement all respects and those not so qualified shall be true and correct in all material respects as of the date hereof and at and as of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those though such representations and warranties that address matters only as of a particular date shall remain true were made at and correct as of such date (except for representations and warranties made as of a specified date, which shall speak only as of the specified date). (zb) Each of the Companies and the Shareholders shall have performed or complied with in all material respects all agreements, covenants and conditions contained herein required to be performed or complied with by it prior to or at the time of the Closing. (other than those in Section 4.2 c) Since the date of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could , there shall not reasonably be expectedhave been any event, change, effect, occurrence or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect Effect. (d) The Companies and (iii) Parent the Shareholders shall have received a certificate delivered to Parent and Merger Sub certificates, dated the date of the Closing, signed by the chief an executive officer of each of the Companies and by the Shareholders, certifying as to the fulfillment of the conditions specified in Section 8.2(a), Section 8.2(b) and Section 8.2(c). (e) All of the Company to Consents set forth on Section 8.2(e) of the foregoing effect;Company Disclosure Schedule shall have been obtained. (bf) All proceedings of the Company shall have received all consents, waivers Companies and approvals the Shareholders that are required in connection with the consummation Contemplated Transactions shall be reasonably satisfactory in form and substance to Parent and its counsel, and Parent and its counsel shall have received such evidence of any such proceedings, good standing certificates (if applicable), organizational and governing documents, certified if requested, as may be reasonably requested and is customary in transactions such as this one. (g) All shareholders agreements, voting agreements, registration rights agreements and similar agreements between or among any of the transactions contemplated hereby in connection with Companies, the agreementsSubsidiaries and/or the Shareholders (other than the Registration Rights Agreement), contracts, licenses or leases and all other agreements set forth in on Section 4.5 8.2(g) of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event been terminated and shall cease to be of force or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company Shareseffect.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Merger are is subject to the satisfaction (orsatisfaction, at or prior to the extent legally permissibleClosing, waiver) of the following further conditions: (a) the Company Stock Option Redemption shall have performed been completed; (b) (i) each of the Specified Company Representations, to the extent not qualified as to materiality or “Company Material Adverse Effect,” shall be true in all material respects respects, and to the extent so qualified shall be true in all respects, when made and as of its obligations and covenants hereunder required to be performed by it at or immediately prior to the Effective TimeTime as if made at and as of such time (other than any Specified Company Representation that is made only as of a specified date, (ii) the representations and warranties of the Company contained in this Agreement shall which need only to be true and correct in all material respects as of such specified date), (ii) the date Other Company Representations, disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of this Agreement and immediately prior to the Closing Date with the same force and effect Effective Time as if made on the Closing Date except at and as of such time (y) those representations and warranties other than any Other Company Representations that address matters are made only as of a particular date shall remain specified date, which need only to be true and correct as of such date and specified date); provided that the Other Company Representations as modified in clause (zii) (other than those in Section 4.2 of this Agreement) to shall be deemed true at any time unless the extent that failure individual or aggregate impact of the representations and warranties failure to be so true and correct of the Other Company Representations could not reasonably be expected, individually or in the aggregate, expected to have a Company Material Adverse Effect Effect; and (iii) Parent shall have received a certificate signed on behalf of the Company by the chief a senior executive officer of the Company to the foregoing effect; (bc) the Company shall have performed in all material respects its obligations under the Agreement, and Parent shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 a certificate signed on behalf of the Company Disclosure Scheduleby a senior executive officer of the Company to the foregoing effect; provided, except those consentshowever, waivers or approvals that Parent and Merger Sub shall not be relieved of their obligations to consummate the Merger pursuant to this Section 7.02(c) solely as a result of a failure by the Company to obtain would not, individually or perform its obligations under this Agreement that has been primarily and proximately caused by the actions of ▇▇▇▇ ▇. ▇▇▇▇▇ in the aggregate, reasonably be expected to have a Material Adverse Effect on his capacity as an executive officer of the Company; (cd) Merger Sub shall have received gross proceeds of at least $15,000,000 on terms and conditions as set forth in the Debt Financing Letter or upon terms that are, in the reasonable judgment of Merger Sub, at least as favorable to Merger Sub as those set forth in the Debt Financing Letter; (e) there shall not be instituted or pending any suit, proceeding or investigation: Proceeding by any Governmental Authority (i) challenging or seeking to restrain or prohibit the consummation Parent’s ownership or operation (or that of its Affiliates) of all or any material portion of the Merger business, assets or any products of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel Parent or any of its Affiliates to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, (ii) seeking, directly or indirectly, to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of Company Common Stock or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to the Company’s shareholders, or (iii) seeking to require divestiture by, Parent, Merger Sub, or any of Parent’s other Affiliates of any equity interests; (f) there shall not be in effect any Order that could reasonably be expected to result, directly or indirectly, in any of the effects referred to in clauses (i) through (iv) of Section 7.02(e); and (eg) Dissenting Shares there shall comprise no more than fifteen percent (15%) not have been any fact, event, change, development or set of circumstances that has had, individually or in the issued and outstanding aggregate, a Company SharesMaterial Adverse Effect.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissibleif permitted by applicable Legal Requirements, waiver) waiver of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, ; (ii) each of the representations and warranties of the Company contained in this Agreement which is qualified as to materiality shall be true and correct and each such representation and warranty that is not so qualified shall be true and correct in all material respects respects, in each case as of the date hereof and at and as of this Agreement and the Closing Date with the same force and effect Effective Time as if made on the Closing Date at and as of such time, except (y) that those representations and warranties that which address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect date; and (iii) Parent shall have received a certificate signed by the chief an executive officer of the Company Company, respectively, to the foregoing effect; (b) there shall not have been instituted or be pending any action or proceeding having a reasonable likelihood of success by or before any Governmental Authority or a court of competent jurisdiction, nor shall there be in effect any judgment, decree or order of any Governmental Authority or court of competent jurisdiction, in either case, seeking to make materially more costly the Company shall have received all consentsMerger, waivers and approvals required or seeking to obtain material damages in connection with the consummation Merger, or seeking to prohibit or limit materially Parent at any time after the Effective Time from exercising all material rights and privileges pertaining to its ownership of the transactions contemplated hereby in connection with Surviving Corporation to the agreements, contracts, licenses full extent permitted by applicable Legal Requirements or leases set forth in Section 4.5 the ownership or operation by Parent or any of its subsidiaries of all or any portion of the Company Disclosure Schedulebusiness or assets of the Surviving Corporation, except those consentsParent or any of their subsidiaries, waivers or approvals seeking to compel the failure Surviving Corporation, Parent or any of their subsidiaries to obtain would notdispose of or hold separate all or any portion of the business or assets of the Surviving Corporation, individually Parent or in any of their subsidiaries, as a result of the aggregate, reasonably be expected to have a Material Adverse Effect on the CompanyMerger; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation documents providing for the Redemption and the exercise of the Merger or options described in Section 2.01 shall be reasonably satisfactory to Parent and its counsel and shall in any event include an acknowledgement of the other transactions contemplated by this Agreement; (ii) relating to the Merger deduction and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit withholding described in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or ParentSection 2.07; (d) there the Parent shall have not occurred any event or change since received an opinion of Reinman, Matheson, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, PA, counsel to the date Company, covering such matters as are listed in Exhibit 7.02(d); (e) the Parent shall have received an opinion of ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., counsel to the Agreement that has had or could reasonably be expected to ESOP, covering such matters as are listed in Exhibit 7.02(e); (f) Parent and each of ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Day, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Shverak, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have a Material Adverse Effect on the Company and its Subsidiaries, taken as a wholeentered into mutually acceptable employment agreements; and (eg) Dissenting Shares The Company shall comprise no more than fifteen percent have furnished to Parent (15%i) certification in the form required by Treasury Regulation Section 1.1445-2(c)(3) that the capital stock of the issued Company is not a "United States real property interest"; and outstanding (ii) as agent for the Company, a form of notice to the Internal Revenue Service in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2) along with written authorization for Parent to deliver such notice form to the Internal Revenue Service on behalf of the Company Sharesupon the Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions:conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof): (a) (i) the Company shall have performed in all material respects all of its material obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, ; and (ii) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief an executive officer of the Company to the foregoing effect; (b) (i) each of the representations and warranties of the Company contained in this Agreement shall have been true and correct in all material respects at the time originally made (as qualified by the Company Disclosure Schedule) and shall be true and correct as of the Effective Time (as qualified by the Updated Company Disclosure Schedule delivered by the Company most recently prior to the delivery of the Merger Election Notice by Parent); and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect; (c) each of the officers or employees of the Company responsible for oversight of the (i) research and development, (ii) operations, (iii) clinical, and (iv) general management functions of the Company shall have received executed and delivered non-competition agreements with Parent in the form attached hereto as Exhibit F; (d) except in the case of such person’s death or permanent disability, the persons identified by Parent at the time of delivery of a Merger Election Notice shall have executed and delivered an employment agreement or a consulting agreement with Parent in form and substance satisfactory to Parent and such person; (e) no Material Adverse Effect with respect to the Company’s business shall have occurred or been discovered by Parent since the date of delivery of the Merger Election Notice; (f) no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Contingent Payment Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property); (g) Heller, Ehrman, White & ▇▇▇▇▇▇▇▇▇ LLP or other legal counsel to the Company approved by Parent in its sole discretion will have issued a legal opinion in the form attached hereto as Exhibit G; (h) the Company shall have delivered a properly executed statement, dated as of the Closing Date, in a form reasonably acceptable to Parent conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3); (i) the Company shall have delivered to Parent and Merger Sub a certificate that (x) incorporates by reference the representations and warranties set forth in Section 3.2 and sets forth the information required to be set forth on Section 3.2 of the Company Disclosure Schedule as of the Effective Time, (y) sets forth a description of all consentsStockholder Debt to be outstanding immediately prior to the Effective Time, waivers including the current holder thereof and approvals the maximum amount required to discharge such Stockholder Debt in full (including any accrued interest, prepayment fees or costs, and any increases or multiples of the principal amount thereof), and (y) sets forth a description of all Merger-Triggered Fees, including the persons to whom they are payable, and the respective maximum amounts thereof (the “Capitalization and Fee Certificate”), which Capitalization and Fee Certificate shall be deemed to be a representation and warranty of the Company hereunder; (j) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and other instruments or obligations to which it is a party, other than consents or approvals which, if not obtained, would not have a Parent Impairment either prior to or following the Closing; (k) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options and Company Warrants, which shall be converted into the right to receive a portion of the Merger Consideration in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have been exercised or terminated, and, except for the Stockholder Debt set forth on the Capitalization and Fee Certificate which shall be paid by Parent at the Closing in accordance with Section 1.5(a), all outstanding convertible notes shall have been cancelled without repayment or converted into capital stock of the Company; (l) if requested by Parent, the Company shall have held a Stockholders Meeting and the Company Stockholders shall have approved the entrance by the Company into this Agreement and the consummation of the transactions contemplated hereby in connection with hereby, including the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a wholeMerger; and (em) Dissenting Shares shall comprise holders of no more than fifteen percent (15%) 5.0% of the issued and aggregate outstanding Company SharesCommon Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall have elected to, or continue to have contingent rights to, exercise dissenters’, appraisal or similar rights under California Law with respect to such shares.

Conditions to the Obligations of Parent and Merger Sub. The ------------------------------------------------------ obligations of Parent and Merger Sub to consummate effect the Merger are also subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it fulfillment at or prior to the Effective Time, (ii) the representations and warranties Time of the Company contained following conditions unless waived in writing by Parent and Merger Sub: (a) this Agreement, the Merger and the consummation of the transactions contemplated in this Agreement shall be true have been approved and correct in all material respects as adopted by the requisite vote of the date of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer stockholders of the Company to the foregoing effectrequired by Colorado Law; (b) the Company shall have performed each obligation and agreement and complied with each covenant to be performed and complied with by it hereunder at or prior to the Effective Time, except for such failures to comply which would not constitute a Company Material Adverse Effect and which would not otherwise materially adversely affect the consummation of the transactions contemplated hereby, and Parent shall have received a certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company to such effect; (c) the representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Date, as though made on and as of the Effective Date, and Parent shall have received a certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company to such effect with respect to the Company's representations and warranties; (d) the Company shall have taken all actions, if any, that are necessary to assure that upon consummation of the Merger all of the options, warrants, and other agreements to acquire any shares of Company Common Stock (excluding agreements with Parent) outstanding immediately prior to the Merger (and not exercised prior to the Merger) shall, effective upon the Merger, have been cancelled and shall have provided evidence thereof to Parent satisfactory to it; (e) the Company shall have delivered to Parent and Merger Sub all necessary consents, waivers waivers, authorizations and approvals required in connection with approvals, such that neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in connection the acceleration, termination, modification or cancellation of, or the creation in any party of the right to accelerate, terminate, modify or cancel, any indenture, contract, lease, sublease, loan, agreement, note or other similar obligation or liability to which the Company or any of the Company Subsidiaries is a party or is bound or to which any of their respective assets are subject, (ii) conflict with, violate or result in a breach of any provision of the charter documents or bylaws of the Company or any of the Company Subsidiaries, (iii) conflict with or violate any law, rule, regulation, ordinance, order, writ, injunction or decree applicable to the agreementsCompany or any of the Company Subsidiaries or by which any of their respective properties or assets is bound or affected or (iv) conflict with or result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, contractsor result in the creation of any lien, licenses charge or leases encumbrance on any of the properties or assets of the Company or any of the Company Subsidiaries pursuant to any of the terms, conditions or provisions of any indenture, contract, lease, sublease, loan, agreement, note, permit, license, franchise, agreement or other instrument, obligation or liability to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries or any of their assets is bound or affected, unless the failure to obtain such consents, waivers, authorizations and approvals would not (x) prevent the consummation of the transactions contemplated hereby, or (y) be reasonably likely to have a Company Material Adverse Effect; (f) the Company shall have delivered to each of Parent and Merger Sub a certificate of the Secretary of the Company dated the Effective Date, certifying as to (i) a copy (to be attached to such certificate) of the Articles of Incorporation of the Company, together with all amendments thereto, and a copy of the By-laws of the Company and further certifying that no action has been taken to amend, modify or repeal such documents, the same being in full force and effect in such form on the Effective Date, (ii) a copy (to be attached to such certificate) of the resolutions of the board of directors and stockholders of the Company authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and further certifying that such resolutions have not been amended, modified, revoked or rescinded as of the date of such certificate and (iii) the incumbency and signature of the officers of the Company executing this Agreement on behalf of the Company and any certificate, agreement or other documents to be delivered by the Company pursuant hereto, together with evidence of the incumbency of such Secretary; (g) the Company shall have delivered to each of Parent and Merger Sub the favorable opinion of counsel to the Company, dated the Effective Date, in form and substance reasonably satisfactory to counsel to Parent and Merger Sub, to the following effect: (i) the organization, existence, and good standing of the Company and the Company Subsidiaries are as stated in this Agreement; (ii) the Company has full power and authority to execute and deliver this Agreement and the Company has full power and authority to perform this Agreement; (iii) this Agreement has been duly authorized by all requisite action of the Board of Directors and shareholders of the Company, and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting creditors' rights generally and to general equitable principles; (iv) the execution and performance by the Company of this Agreement will not violate the Articles of Incorporation or By-laws of the Company and will not violate, result in a breach of or constitute a default under, any lease, mortgage, agreement, instrument, judgment, order or decree known to such counsel to which the Company or any Company Subsidiary are parties or to which they or any of their properties may be subject; (v) the Articles of Merger have been duly executed by the Company and, upon filing, will be sufficient to lawfully effect the Merger; (vi) the Mining Venture Agreement is in full force and effect and is valid, binding and enforceable by the Company, except as disclosed in Section 2.16(a) of the Company --------------- Disclosure Letter; (vii) the Company owns and has good title to the Project, the Properties and all of the assets and properties of the Company referenced in Section 2.17 of this Agreement, except as set ------------ forth in Section 4.5 2.17 of the Company Disclosure ScheduleLetter; and (viii) to ------------ the knowledge of such counsel, except those consentsno consent, waivers approval, authorization or approvals order of any court or governmental agency or body not previously obtained is required for the failure to obtain would notconsummation of the Agreement. (h) since the date of this Agreement, individually or there shall not have occurred any material adverse change in the aggregatecondition (financial or otherwise), reasonably business, operations, prospects or assets of the Company and the Company Subsidiaries considered as one enterprise; (i) Parent shall have completed, and in its sole discretion be expected to have a Material Adverse Effect on satisfied with the results of, its due diligence investigation of the Company; (cj) except for the filing of the Articles of Merger with the Secretary of State of the State of Colorado, all waivers, consents, approvals and actions or non-actions of any governmental authority, commission, board or other regulatory body required to consummate the transactions contemplated by this Agreement shall have been obtained and shall not have been reversed, stayed, enjoined, set aside, annulled or suspended; (k) there shall not be threatened or pending any suit, action or proceeding by any Governmental Entity or investigation: any other person, or before any court or governmental authority, agency or tribunal, domestic or foreign, in each case that has a reasonable likelihood of success, (i) challenging the acquisition by Parent or Merger Sub of any shares of Company Common Stock, seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and , or seeking to obtain from Parentthe Company, the Company Parent or any of their respective Subsidiaries Merger Sub any damages that may be are material in relation to Parent or the CompanyCompany and the Company Subsidiaries taken as a whole, as applicable; (iiiii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, or to compel the Company, Parent or any of their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, (iii) seeking to impose limitations on the ability of Parent or Merger Sub to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock, including, without limitation, the right to vote the Company Common Stock purchased by it on all matters properly presented to the stockholders of the Company, (iv) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect Parent’s ability to vote, receive dividends with respect to the business or otherwise exercise ownership rights with respect to the stock operations of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parentthe Company Subsidiaries or (v) which otherwise is reasonably likely to have a Company Material Adverse Effect; (dl) there the Company's Board of Directors shall have approved the Globex Loan Agreement, and the Company shall not occurred be in default under that agreement; (m) all funds which the Company borrows are used for the purpose required by any event loan agreement or change since related documentation associated with such borrowing; (n) U.S. Gold shall have duly executed the date Stock Option Agreement, and all related agreements and documents and such agreements are in full force and effect and U.S. Gold shall not be in default thereof; (o) Royalstar shall have duly executed a Stock Purchase Agreement providing for the purchase by Parent of 4,419,110 shares of Company Common Stock at $0.80 per share, all related agreements and documents and such agreements are in full force and effect, Royalstar shall not be in default thereof, and Parent shall have acquired such shares prior to or substantially contemporaneous with the Merger; (p) The Company shall have caused any of its employees, officers, directors or any Company Subsidiary which owns any interest in any real property, or any mineral interest or estate therein, within one aerial mile of the Agreement that has had Lands or could reasonably be expected the Project, to have convey such interest, without any additional compensation to such person, to the Company by a Material Adverse Effect on document of transfer satisfactory to Parent and its counsel; (q) the Company and its SubsidiariesTSVLP shall have executed and delivered a document, taken as a wholesatisfactory to Parent, amending the terms and provisions of the Mining Venture Agreement; and (er) Dissenting Shares Parent shall comprise have successfully raised financing of no more less than fifteen percent (15%) of the issued and outstanding Company Shares$10,000,000.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger under this Agreement are subject to the satisfaction (orsatisfaction, to at or before the extent legally permissibleClosing, waiver) of each of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the The representations and warranties of the Company Money Centers contained in this Agreement herein that are qualified as to materiality shall be true and correct in all material respects on and as of the date of this Agreement and the Closing Date with the same force and effect as if though made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date date, and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure each of the representations and warranties to of Money Centers that are not so qualified shall be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect;all material respects. (b) the Company Money Centers shall have received performed and complied in all consentsmaterial respects with all covenants, waivers agreements, obligations and approvals conditions required in connection by this Agreement to be performed or complied with by Money Centers at or prior to the Closing. (c) There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the transactions contemplated hereby in connection with the agreementsMerger, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (cb) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on Parent's ability to exercise control over or manage Money Centers after the Company Closing or Parent; (dc) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on Money Centers. (d) On the Company and its SubsidiariesClosing Date, taken as there shall be no effective Order issued by a whole; andcourt of competent jurisdiction restraining or prohibiting the consummation of the Merger. (e) Dissenting Shares Money Centers shall comprise no more than fifteen percent (15%) have delivered to Parent a certificate, dated the Closing Date, executed by a duly authorized officer of Money Centers certifying the fulfillment of the issued conditions specified in Sections 8.2(a), (b) and outstanding Company Shares(c). (f) Money Centers shall have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of Money Centers, certifying as to (i) Money Centers' Governing Documents, (ii) resolutions with respect to the Merger adopted by Money Centers' board of directors and shareholders attached thereto, and (iii) incumbency and signatures of the persons who have executed this Agreement, the Related Agreements to which it is a Party and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement or any of the Related Agreements to which it is a party on behalf of Money Centers. (g) Parent shall have received an opinion of Klehr, Harrison, Branzburg & Ellers LLP, counsel to Money Centers, dated the Closing Date, in form ▇▇▇ ▇ubstance reasonably satisfactory to Parent. (h) Shareholder shall have entered into an employment agreement with Parent on terms and conditions reasonably acceptable to Parent. (i) The Related Agreements to which Money Centers is a party and all other documents to be delivered by Money Centers to Parent at the Closing shall be satisfactory in form and substance to Parent. (j) All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Parent Counsel, in connection with (a) the execution and delivery by Money Centers of this Agreement and the Related Agreements to which it is a Party or (b) the consummation by Money Centers of the Merger and copies of all such Consents shall have been delivered to Parent. (k) Parent shall have completed a business and legal due diligence investigation of Money Centers, its assets and properties and the Business, the results of which shall be satisfactory to Parent in its sole discretion. (l) Parent shall receive possession of the Certificates. (m) Parent shall receive from Money Centers audited consolidated and consolidating balance sheets and statements of income, change in stockholders' equity and cash flow as of and for the twelve months ended September 30, 2003. (n) Money Centers shall deliver an industry-standard commitment letter to Parent providing for the refinancing of its existing vault cash and, upon consummation of the acquisition of Chex Services, Inc. by iGames Entertainment, Inc., the existing vault cash of Chex Services, Inc. Such commitment letter shall be subject to the standard contingencies for commitment letters in this area of financing.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (orfulfillment at or prior to the Closing Date of each of the following additional conditions, any or all of which may be waived in whole or in part by Parent and Merger Sub, as the case may be, to the extent legally permissible, waiver) of the following further conditionspermitted by applicable Law: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the The representations and warranties of the Company contained in this Agreement herein shall be have been true and correct in all material respects when made and on and as of the date Closing Date as though made on and as of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date (except (y) those for representations and warranties that address matters made as of a specified date, which shall speak only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that specified date), except where the failure of the representations and warranties to be so true and correct could not reasonably be expectedtrue, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall has not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could is not reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, subsidiaries taken as a whole. (b) The Company shall have performed or complied in all material respects with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the time of the Closing. (c) The Company shall have delivered to Parent a certificate, dated the Closing Date, signed by the President or any Vice President of the Company certifying as to the fulfillment of the conditions specified in Sections 7.2(a) and 7.2(b). (d) Parent shall have received an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, dated the Closing Date, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code; andand (ii) each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. The issuance of such opinion shall be conditioned on the receipt by such counsel of representation letters from each of Parent, Merger Sub and the Company, substantially in the forms attached hereto as EXHIBITS C and D in each case, in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect. (e) Dissenting Shares All authorizations, consents or approvals of any Governmental Entity (other than those specified in Section 7.1(b)) required in connection with the execution and delivery of this Agreement and the performance of the obligations hereunder shall comprise have been obtained, without any limitation, restriction or condition that is reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or, were such effect applied to the Surviving Corporation and its subsidiaries, is reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole), except for such authorizations, consents or approvals, the failure of which to have been obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or, were such effect applied to the Surviving Corporation and its subsidiaries, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole). (f) All authorizations, consents or approvals of any third parties (other than those specified in Section 7.2(e)) identified in the Company Disclosure Schedule required for the Company to consummate the Merger and the other transactions contemplated hereby shall have been obtained, except for such authorizations, consents or approvals, the failure of which to have been made or obtained is not reasonably expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole (or, were such effect applied to the Surviving Corporation and its subsidiaries, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole). (g) Parent shall have received a Lock-Up Agreement executed by each Company Insider and Parent Insider. (h) Stockholders of the Company holding no more than fifteen five percent (155%) of the issued Company Common Stock shall have elected any appraisal rights or associated payments under Sections 92A-420 and outstanding 92A-440 of the NGCL. (i) Parent shall have received an opinion, dated the Closing Date, from ▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to the Company, in the form reasonably acceptable to Parent and its legal counsel regarding the due authorization of the Company Sharesentering and performing this Agreement and the Merger, enforceability of this Agreement and the Merger, and no conflicts with the articles of incorporation or bylaws of the Company. (j) All consents, waivers and other actions referred to in Section 6.19 shall have been obtained and/or taken as provided therein.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions:conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof): (a) (i) the Company shall have performed in all material respects all of its material obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, ; and (ii) Parent shall have received a certificate dated as of the Closing Date and signed by the Company’s President or Chief Executive Officer, certifying to the foregoing effect; (b) (i) each of the representations and warranties of the Company contained in this Agreement shall be have been true and correct in all material respects (without regard to any qualifications to such representations and warranties as to materiality, Material Adverse Effect of similar expressions) at the time originally made (as qualified by the Company Disclosure Schedule) and the representations and warranties made as of the date of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain be true and correct as of the Effective Time (as qualified by the Company Disclosure Schedule delivered on the Agreement Date), except for breaches of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expectedthat, individually or in the aggregate, would not and could not reasonably be expected to have result in a Material Adverse Effect Effect; and (iiiii) the Company shall deliver to Parent shall have received at the Closing a certificate certificate, dated as of the date of the Closing and signed by the chief executive officer of the Company Company’s President or Chief Executive Officer, certifying to the foregoing that effect; (bc) no Material Adverse Effect with respect to the Company shall have occurred or been discovered by Parent since the Agreement Date; (d) no injunction or other decree shall have been issued by any court of competent jurisdiction prohibiting the sale of the Company Products by the Company or Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property); (e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ will have issued a legal opinion addressed to Parent in the form attached hereto as Exhibit E; (f) the Company shall have received all consentsdelivered a properly executed statement, waivers and approvals required in connection with the consummation dated as of the transactions contemplated hereby Closing Date, in connection with a form reasonably acceptable to Parent conforming to the agreements, contracts, licenses or leases requirements of Treasury Regulation Section 1.1445-2(c)(3); (g) the Company shall have delivered to Parent and Merger Sub a certificate that sets forth (i) the information required to be set forth in on Section 4.5 3.2 of the Company Disclosure Schedule, except those consentsupdated to reflect capitalization as of immediately prior to the Effective Time (giving effect to any conversion of shares of Company Preferred Stock to Company Common Stock that is made contingent upon the Closing), waivers or approvals (ii) the failure Fully-Diluted Common Stock Number and the calculation thereof, and (iii) the aggregate exercise price for all Company Options and Company Warrants outstanding as of the Agreement Date (the “Capitalization Certificate”), which Capitalization Certificate shall be deemed to obtain would not, individually or in be representations and warranties of the aggregate, reasonably be expected to have a Material Adverse Effect on the CompanyCompany hereunder; (ch) there the Company shall not be pending any suit, proceeding have obtained those consents or investigation: (i) challenging or seeking approvals with respect to restrain or prohibit the consummation of the Merger of each person listed on Schedule 7.2(h); (i) any and all rights, warrants, options or any other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options and Company Warrants, which shall be converted into the right to receive a portion of the other transactions contemplated by this Agreement; (iiClosing Payment Amount in accordance with Section 2.1) relating outstanding immediately prior to the Merger Closing, whether or not exercisable, whether or not vested, and seeking whether or not performance based, shall have been exercised or terminated (j) holders of no more than 5.0% of the aggregate outstanding Company Common Stock and Company Preferred Stock (calculated on an as-converted to obtain from Company Common Stock basis) as of the Effective Time shall have elected to, or continue to have contingent rights to, exercise dissenters’, appraisal or similar rights under California Law with respect to such shares; and (k) the Company shall have delivered a certification to Parent, in form and substance (other than with respect to any amounts set forth thereon) satisfactory to Parent, setting forth the maximum amount of fees and expenses that each professional advisor engaged by the Company or any its Board of their respective Subsidiaries any damages that may be material to Parent Directors in connection with this Agreement or the Company’s efforts to consummate an initial public offering of the Company Common Stock, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to voteconsisting of ▇▇▇▇▇ ▇▇▇▇▇▇▇, receive dividends with respect to or otherwise exercise ownership rights ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ charge with respect to the stock transactions contemplated hereby or the Company’s efforts to consummate an initial public offering of the Surviving Corporation; Company Common Stock (regardless of whether or not such fees and expenses have been billed to, or collected from, the Company) (iv) whicheach a “Transaction Cost Certificate”), if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there and Parent shall have not occurred any event or change since the date of the Agreement that has had or could received such written assurances with respect to such amounts from ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ as it shall reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a wholerequest; and (el) Dissenting Shares each holder of Company Warrants shall comprise no more than fifteen percent (15%) have executed and delivered a amendment, in form and substance reasonably satisfactory to Parent, to the Company Warrants held by such holder acknowledging such holder will receive the portion of the issued and outstanding Closing Payment Amount calculated pursuant Section 2.1(c)(ii) in exchange for such Company SharesWarrants; or, alternatively, for any holders who have not delivered such amendment, the Company Warrants held by such holders shall terminate no later than the Effective Time.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger Transactions are subject to the satisfaction (or, to the extent legally permissible, waiver) or waiver of the following further conditionsconditions on or before the Closing Date: (a) the representations and warranties of the Company contained in Article 3 will be true and correct at and as of the time of the Closing as if made on the Closing Date and the Closing Date were substituted for the date of this Agreement throughout such representations and warranties, except (i) to the extent that the failure of such representations and warranties to be true and correct has not caused a Material Adverse Effect, and (ii) for those representations and warranties that address matters as of any other particular date (in which case such representations and warranties shall have been true and correct as of such particular date, except to the extent that the failure of such representations and warranties to have been true and correct as of such particular date has not caused a Material Adverse Effect), it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other qualifications based on the word “material” or similar phrases contained in such representations and warranties shall be disregarded (except for purposes of the representations set forth in Sections 3.12, 3.16(g) and 3.16(1)); (b) the Company shall have performed in all material respects all of its obligations the covenants and covenants hereunder agreements required to be performed by it under this Agreement at or prior to the Effective Time, (ii) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effectClosing; (bc) the Company shall have received all consents, waivers and approvals required in connection with obtained the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or ParentRequisite Stockholder Approval; (d) there the applicable waiting periods, if any, under the HSR Act shall have not occurred any event expired or change since been terminated; (e) no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court or agency of competent jurisdiction or other Law shall be threatened, pending, shall have been issued or shall be in effect which prohibits, restrains or renders illegal the date consummation of the Agreement Transactions or would cause the Transactions to be rescinded; (f) the Stockholders’ Representative and the Paying Agent shall have executed and delivered the Paying Agent Agreement; (g) the Company shall have delivered the Payout Spreadsheet to Parent and the Paying Agent; (h) the Stockholders’ Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement; (i) the Company shall have delivered to Parent a certificate, dated the Closing Date, stating that has had or could reasonably be expected the preconditions specified in Sections 8.0l(a), 8.01(b), and 8.01(1) as they relate to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; andhave been satisfied; (ej) the number of Dissenting Shares shall comprise no more than fifteen percent not exceed 2.0% of the sum of Total Outstanding Series A Preferred Shares and total outstanding shares of Company Common Stock as of the date hereof; (15%k) the Company shall have obtained the third-party consents set forth in Section 8.01(k) of the issued and outstanding Company Shares.Disclosure Schedule; (1) since the date of this Agreement, no event shall have occurred which has had a Material Adverse Effect;

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger under this Agreement are subject to the satisfaction (orsatisfaction, to at or before the extent legally permissibleClosing, waiver) of each of the following further conditions: (a) the Company The representations and warranties of BBT contained herein that are qualified as to materiality shall have performed be true in all material respects all on and as of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, Closing Date (ii) except for the representations and warranties made as of the Company contained in this Agreement a specific date which shall be true and correct in all material respects as of the date of this Agreement and the Closing Date such date) with the same force and effect as if though made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date date, and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure each of the representations and warranties to of BBT that are not so qualified shall be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect;all material respects. (b) the Company BBT shall have received performed and complied in all consentsmaterial respects with all covenants, waivers agreements, obligations and approvals conditions required in connection by this Agreement to be performed or complied with by BBT at or prior to the Closing. (c) There shall not be threatened, instituted or pending any suit, action, investigation, inquiry or other proceeding by or before any court or governmental or other regulatory or administrative agency or commission requesting or looking toward an order, judgment or decree that (a) restrains or prohibits the consummation of the transactions contemplated hereby in connection with the agreementshereby, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (cb) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect material adverse effect on Parent's ability to exercise control over or manage BBT after the Closing or (c) could reasonably be expected to have a material adverse effect on the Company and its SubsidiariesBusiness or BBT. (d) On the Closing Date, taken as there shall be no effective injunction, writ, preliminary restraining order or other order issued by a whole; andcourt of competent jurisdiction restraining or prohibiting the consummation of the transactions contemplated hereby. (e) Dissenting Shares BBT shall comprise no more than fifteen percent have delivered to Parent a certificate, dated the Closing Date, executed by the Secretary of BBT, certifying as to (15%a) BBT's certificate of incorporation, (b) BBT's by-laws, (c) resolutions with respect to the transactions contemplated by this Agreement adopted by BBT's board of directors and shareholders and attached to such certificate, and (d) incumbency and signatures of the issued persons who have executed this Agreement, the Related Agreements and outstanding Company any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement or any of the Related Agreements on behalf of BBT. (f) Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have entered into an employment agreement with the Surviving Corporation (collectively, the "EMPLOYMENT AGREEMENTS"), substantially in the form of EXHIBIT B. (g) Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have entered into a lock-up agreement with Parent (collectively, the "LOCK-UP AGREEMENTS"), substantially in the form of EXHIBIT C. (h) BBT shall have furnished Parent with copies of the Ownership and Nondisclosure Agreements signed by each employee, officer, consultant or contractor of BBT identified on SCHEDULE 4.16(G). (i) Parent shall have received stock certificates representing the Shares. (j) No material adverse change affecting BBT shall have occurred.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (or, to the extent legally where permissible, waiver) of the following further additional conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the The representations and warranties of the Company contained in this Agreement shall be true and correct in (disregarding all material respects qualifications or limitations as to “materiality” or “Company Material Adverse Effect” or other similar qualifiers set forth therein) as of the date of this Agreement and the Closing Date with the same force and effect Effective Time as if though made on the Closing Date except and as of such date (y) those representations and warranties that address matters unless any such representation or warranty is made only as of a particular date shall remain true and correct specific date, in which case as of such date and (z) (other than those in Section 4.2 of this Agreement) to date), except where the extent that failure of the any such representations and warranties to be so true and correct could has not reasonably had, and would not have, a Company Material Adverse Effect. (b) The Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be expectedperformed by, individually or in complied with by, it under this Agreement at or prior to the aggregate, to have a Effective Time. (c) No Company Material Adverse Effect and (iii) Parent shall have received occurred since the date of this Agreement. (d) The Company shall have delivered to Parent a certificate certificate, signed on behalf of the Company by the chief executive Chief Executive Officer and Chief Financial Officer of the Company (solely in his capacity as an officer of the Company without personal liability), certifying as to the foregoing effect;satisfaction of the conditions specified in Sections 6.2(a), 6.2(b), and 6.2(c). (be) the The Company shall have received all consentsreceived, waivers and approvals required on or prior to the Effective Time, an agreement acceptable to Parent which shall waive, for a period of not less than sixty days from the Effective Time, any rights the lenders under the Credit Agreement may have (whether of acceleration or otherwise) as a result of a Change of Control Event (as defined in connection with the consummation Credit Agreement) being deemed to have occurred as a result of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement. (f) The Contribution shall have been consummated and DLJ shall have otherwise complied with each of its obligations under the Contribution Agreement; provided, however, that Parent’s obligation to consummate the Merger shall not be conditioned on the matters described in this clause (iif) relating to the Merger and seeking to obtain from Parentextent any breach by Parent under the Contribution Agreement or this Agreement has been the cause of, or resulted in, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock failure of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date consummation of the Agreement that has had Contribution or could reasonably be expected DLJ’s failure to have a Material Adverse Effect on comply with its obligations under the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company SharesContribution Agreement.

Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Merger are is also subject to the satisfaction (oror waiver in writing if permissible under applicable Law), to the extent legally permissible, waiver) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, of the following conditions: (a) (i) The representations and warranties of the Company contained in Section 3.2 (Capitalization) shall be true and correct as of the date of this Agreement and on and as of the Closing Date as if made on and as of such date; (ii) the representations and warranties of the Company contained in this Agreement Section 3.1 (Corporate Organization), Section 3.3 (Authority), Section 3.9 (Broker’s Fees), Section 3.18 (State Takeover Laws) and Section 3.25 (Disclosure Documents) shall be true and correct in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if though made on the Closing Date (except (y) those to the extent such representations and warranties that address matters only expressly relate to a specific date or as of the date hereof, in which case such representations and warranties shall be true and correct in all material respects as of such date); and (iii) each of the representations and warranties of the Company contained in this Agreement (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or similar terms set forth therein) (other than those contained in the preceding clauses (i) and (ii)) shall be true and correct as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to a particular specific date or as of the date hereof, in which case such representations and warranties shall remain be true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to date), except where the extent that failure of the representations and warranties to be so true and correct could does not have, and would not reasonably be expectedexpected to have, individually or in the aggregateaggregate with respect to all such failures, to have a Company Material Adverse Effect Effect. Parent and (iii) Parent Merger Sub shall have received a certificate signed by the chief executive officer Chief Executive Officer or President and the Chief Financial Officer of the Company to the foregoing such effect;. (b) the The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Parent and Merger Sub shall have received all consents, waivers a certificate signed by the Chief Executive Officer or President and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 Chief Financial Officer of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company;such effect. (c) there There shall not be pending or threatened any suit, proceeding action or investigation: (i) challenging proceeding, in each case, by any Governmental Authority or any third party, including any actions by one or more Company Stockholders, seeking damages or other amounts in connection with, or to restrain restrain, preclude, enjoin or prohibit the consummation of prohibit, the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since Between the date of this Agreement and the Agreement that Closing Date, there shall not have occurred any Circumstance which individually or in the aggregate with all other Circumstances has had or could would reasonably be expected to have a Company Material Adverse Effect Effect. Parent and Merger Sub shall have received a certificate signed by the Chief Executive Officer or President and Chief Financial Officer of Company to such effect; (e) The Company shall have redeemed the Series B Preferred Stock in accordance with Section 1.5; (f) There shall not have occurred and be continuing any general suspension of, or limitation on the Company and its Subsidiaries, taken trading in securities on NASDAQ (other than a shortening of trading hours or any coordinated trading halt triggered solely as a wholeresult of a specified increase or decrease in a market index); and (eg) Dissenting Shares Parent shall comprise have received the opinion of King & Spalding LLP, counsel to Parent, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon customary assumptions and representations provided by Parent and the Company that counsel to Parent reasonably deems relevant. (h) Parent shall have received the Mayo Non-Compete and Non-Solicit Agreement. (i) There shall not have occurred (i) a Security Breach which, either individually or collectively with all related breaches, has resulted in, or would reasonably be expected to result in, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties to the Company of more than $1,000,000 (a “Material Security Breach”) or (ii) any facts, circumstances or events that would reasonably be expected to result in a Material Security Breach. (j) Parent shall have received a properly executed statement, issued by the Company pursuant to Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) dated no more than fifteen thirty (30) days prior to the Closing Date and signed by an officer of the Company, and in form and substance reasonably satisfactory to Parent, certifying that interests in the Company, including shares of Company Common Stock, do not constitute “United States real property interests” under Section 897(c) of the Code, and the Company shall have provided notice to the IRS in accordance with the provisions of Treasury Regulation Section 1.897-2(h)(2). (k) Parent shall have acquired one hundred percent (15100%) of the issued Start Media Joint Venture pursuant to the terms and conditions set forth in the Start Media Purchase Agreement. (l) The Company shall have obtained, in form and substance satisfactory to Parent, the third party consents set forth on Schedule 7.2(l), and all such consents shall be in full force and effect at the Closing. (m) The Company shall have cancelled and terminated, in form and substance satisfactory to Parent, the third party agreements set forth on Schedule 7.2(m). (n) There shall not have occurred a material adverse change to the net debt or working capital amounts set forth in the Company Balance Sheet (except for changes related to (i) the Pipeline Transactions, (ii) payments by the Company under outstanding loan agreements, (iii) the redemption of the Series B Preferred Stock in accordance with this Agreement and (iv) the occurrence of capital expenditures by the Company, in each case, to the extent permitted by this Agreement). (o) The Company SharesBoard shall have adopted resolutions terminating, effective immediately prior to the Closing, the pension plan sponsored by the Company that is intended to meet the requirements of Section 401(k) of the Code (the “401(k) Plan”), and the Company shall have (i) taken all actions reasonably requested by Parent to ensure that the 401(k) Plan is in compliance with all applicable requirements of the Code and regulations thereunder for all periods through the date of its termination and is eligible to receive a favorable determination letter from the IRS with respect to its termination and (ii) submitted an application to the IRS under the Voluntary Compliance Program, following Parent’s review and approval of such application, to correct any operational failures identified by Parent with respect to the 401(k) Plan.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions:conditions (any one of which may be waived in whole or part by Parent in its sole discretion by giving written notice to the Company in compliance with Section 10.1 hereof): (a) (i) the Company shall have performed in all material respects all of its material obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, ; and (ii) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date except (y) those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief an executive officer of the Company to the foregoing effect; (b) (i) each of the representations and warranties of the Company contained in this Agreement shall have received been true and correct in all consents, waivers and approvals required in connection with material respects at the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of time originally made (as qualified by the Company Disclosure Schedule), or an earlier date if such representation or warranty refers expressly to an earlier date (without giving effect to any qualifications as to materiality or lack of Material Adverse Effect contained therein), and shall be true and correct in all material respects (without giving effect to any qualifications as to materiality or lack of Material Adverse Effect contained therein) as of the Effective Time, with the same force and effect as if such representations and warranties had been made at and as of the Effective Time, or an earlier date if such representation or warranty refers expressly to an earlier date, except those consentswith respect to the representations and warranties deemed to be made as of the Closing Date, waivers or approvals the failure where any failures to obtain would notbe true and correct, individually or in the aggregate, could not reasonably be expected to have constitute a Material Adverse Effect on with respect to the Company and (ii) the Company shall deliver to Parent at the Closing a certificate, dated as of the date of the Closing and signed by the Company’s President or Chief Executive Officer, certifying to that effect; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation each of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger individuals identified on Schedule 7.2 hereto shall have executed and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material delivered a non-competition agreement with Parent in form and substance satisfactory to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parentand such person; (d) there no Material Adverse Effect with respect to the Company shall have not occurred or been discovered by Parent since the Agreement Date; (e) no injunction or other decree shall have been issued by any event court of competent jurisdiction prohibiting the sale of the Contingent Payment Products by the Company or change since Parent on the basis of any rights held by a third party (including without limitation any rights of any third party in any Intellectual Property); (f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ will have issued a legal opinion in the form attached hereto as Exhibit D; (g) the Company shall have delivered a properly executed statement, dated as of the Closing Date, in a form reasonably acceptable to Parent conforming to the requirements of Treasury Regulation Section 1.1445-2(c)(3); (h) the Company shall have delivered to Parent and Merger Sub the Capitalization and Closing Payment Amount Certificate; (i) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and other instruments or obligations to which it is a party; (j) the Company shall have delivered to Parent a certificate at any one time following the date hereof but prior to the Closing Date, setting forth the following information as to each share of the Company’s stock (as defined in Treas. Reg. § 1.382-2(a)(3)), as of the date of such certificate (which date may be any day after the date of this Agreement and prior to the Effective Time): (i) the date of issuance, (ii) the holder at issuance, (iii) the issue price and (if different) fair market value, (iv) the date(s) of any transfer(s), (v) the fair market value at the time of transfer, (vi) any information as to the holder of that has had share from time to time that is described in Treas. Reg. §§ 1.382-2T(h)(6) and/or 1.382-2T(k) and is actually known to the Company, and (vii) a summary of any written materials indicative of, or could reasonably other information or estimates as to, the fair market value of that share from time to time (including, e.g., the exercise price of any incentive stock options granted at any time at or following the issuance date of that share to acquire shares of the same class of stock); (k) any and all rights, warrants, options or other instruments or rights to purchase shares of Company Common Stock or Company Preferred Stock (other than Company Options, which shall be expected converted into the right to receive a portion of the Merger Consideration in accordance with Section 2.1) outstanding immediately prior to the Closing, whether or not exercisable, whether or not vested, and whether or not performance based, shall have a Material Adverse Effect on been exercised or terminated, and all outstanding convertible notes shall have been cancelled or converted into capital stock of the Company and its Subsidiaries, taken as a wholeCompany; and (el) Dissenting Shares shall comprise holders of no more than fifteen five percent (155%) of the issued and aggregate outstanding Company SharesCommon Stock and Company Preferred Stock (calculated on an as-converted to Company Common Stock basis) as of the Effective Time shall have elected to, or continue to have contingent rights to, exercise dissenters’, appraisal or similar rights under Delaware Law or California Law, if any, with respect to such shares.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) or waiver of the following further conditions: (a) the Company shall have performed in all material respects all Each of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company contained in this Agreement shall be true true, complete and correct in all material respects both when made and on and as of the date of this Agreement and the Closing Date with the same force and effect Effective Time as if made on at and as of the Closing Date except Effective Time (y) those other than representations and warranties that which address matters only as of a particular certain date which shall remain true be true, complete and correct as of such date certain date) and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure Parent shall have received a certificate of the representations Chief Executive Officer and warranties Chief Financial Officer of Company to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and such effect. (iiib) Parent shall have received a certificate signed by the chief executive officer of the Chief Executive Officer and Chief Financial Officer of Company setting forth the number of shares of Parent Common Stock that each stockholder of Company is to receive upon consummation of the foregoing effect;Merger and the number of shares of Parent Common Stock issuable upon the exercise of options to purchase Company Common Stock. (bc) the Company shall have performed or complied in all material respects with all covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time and Parent shall have received all consentsa certificate of the Chief Executive Officer and Chief Financial Officer of Company to that effect. (d) Parent shall have raised sufficient funds in order to meet its $14 million cash obligation (U.S. Dollars), waivers plus the amount of the aggregate capital paid in to the Company upon the exercise of Company Stock Options and approvals required in connection with Warrants from and after the consummation date hereof until Closing, to Company shareholders at Closing. (e) There shall have been no Company Material Adverse Effect since the date of this Agreement. (f) No actions by any Governmental Entity or any other Person shall have been instituted for the purpose of enjoining or preventing, or which question the validity or legality of, the transactions contemplated hereby in connection with and which would reasonably be expected to materially damage Merger Sub or Parent or materially adversely affect the agreementsvalue of the Company Common Stock or its assets, contractsor the business or operations of the Company or Parent's ability to own and operate the assets, business or operations of the Company if the transactions contemplated hereby are consummated. (g) All consents, approvals and licenses of any Governmental Entity or leases set forth in Section any third party (including, without limitation, any consent listed on Schedule 4.5 of the Company Disclosure Schedule) required in connection with the execution, except those consentsdelivery and performance of this Agreement and for the Surviving Corporation to conduct the business of the Company in substantially the manner now conducted, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to shall have a Material Adverse Effect on the Company;been obtained. (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (eh) Dissenting Shares shall comprise no constitute not more than fifteen ten percent (1510%) of the issued shares of the Company Common Stock outstanding immediately prior to the Effective Time. (i) Parent shall have received shareholder agreements from all holders of 5,000 or more shares of Company Common Stock, as set forth in Annex A hereto, as applicable to their individual status, not to sell, transfer or otherwise dispose of their Parent stock for a period of six (6) months after the Closing in the case of non-employees and outstanding twelve (12) months in the case of employees. Notwithstanding such shareholder agreements, Parent may in certain limited circumstances allow sales of its stock prior to the expiration of the aforesaid lockup periods, but there is no requirement that it do so. The holders of 5,000 or more shares of Company SharesCommon Stock shall also agree after the expiration of the lockup agreement not to dispose of their Parent stock other than through a broker specified by Parent or after full consultation with such broker.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and the Merger Sub to consummate effect the Merger are is subject to the satisfaction (or, to the extent legally permissiblepermitted under applicable law, waiverwaiver by Parent and the Merger Sub) on or prior to the Closing Date of the following further conditions: (a) the Company shall have performed in all material respects all Each of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company CASH contained in this Agreement shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or CASH Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or CASH Material Adverse Effect) on and as of the date hereof and on and as of this Agreement and the Closing Date with the same force and effect as if though made on the Closing Date at and as of such date (except (y) those representations and warranties that address matters only as of a particular date specified date, the accuracy of which shall remain true and correct be determined as of such that specified date in all respects), and the contents of all Schedules shall be reasonably acceptable. (zb) CASH shall have performed in all material respects all agreements, obligations and covenants required to be performed by CASH under this Agreement at or prior to Closing. (other than those c) The approval of the Merger, in Section 4.2 compliance with the CASH Charter Documents, and the DGCL, by CASH’s board of this Agreementdirectors and holders of a majority of CASH Common Stock shall have been obtained at or prior to Closing and no holders shall have exercised any appraisal rights. (d) A certificate of good standing of CASH from its jurisdiction of incorporation dated a date reasonably proximate to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and Closing Date. (iiie) Parent shall have received a certificate signed such other certificates, instruments and documents as may reasonably be requested by the chief executive officer Parent. (f) CASH shall not have filed for protection under any applicable bankruptcy laws nor has any 3rd party commenced such an action against CASH. (g) CASH shall have executed and delivered this Agreement and each of the Company shareholders listed on Schedule 4.8(i) shall have signed and delivered this Agreement acknowledging their duties and restrictions pursuant to the foregoing effect;Section 4.8. (bh) the Company All liabilities aside from those listed on Schedule 5.1(l) shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure been satisfied prior to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company SharesClosing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or, to the extent legally permissible, waiver) or waiver of the following further conditions: (a) the Company shall have performed in all material respects all Each of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company contained in this Agreement shall be true true, complete and correct in all material respects (other than representations and warranties subject to "materiality" or "material adverse effect" qualifiers, which shall be true, complete and correct in all respects) both when made and on and as of the date of this Agreement and the Closing Date with the same force and effect Effective Time as if made on at and as of the Closing Date except Effective Time (y) those other than representations and warranties that which address matters only as of a particular certain date which shall remain true be so true, complete and correct as of such date and certain date); (zb) (other than those The Company shall have performed or complied in Section 4.2 of all material respects with all covenants required by this Agreement) Agreement to be performed or complied with by it on or prior to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and Effective Time; (iiic) Parent shall have received a certificate signed by the chief executive officer of the Company legal opinion from Hill & ▇▇▇▇▇▇, P.C., counsel to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit substantially in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock form of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or ParentANNEX B hereto; (d) there There shall have not occurred any event or change been no Company Material Adverse Effect since the date of this Agreement; (e) All consents of third parties required pursuant to the terms of any Material Contract as a result of the Merger shall have been obtained; (f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have accepted employment with Parent and shall have entered into noncompetition agreements substantially in the forms attached hereto as ANNEX C; (g) No holders of Company Stock as of the Effective Date shall have perfected dissenting rights in accordance with the DGCL; (h) Holders of the requisite number of shares of (i) Company Common Stock and (ii) Company Preferred Stock shall have approved this Agreement that has had or could reasonably be expected to and the transactions contemplated hereby; (i) Each Founder shall have entered into a Material Adverse Effect on founder lockup agreement substantially in the form attached hereto as Annex D; (j) Each holder of options under the Company Stock Plan being assumed by Parent shall have entered into an optionholder lockup agreement, substantially in the form attached hereto as Annex E. For purposes of clarification, any warrants issued by the Company shall not be deemed to be options issued under the Company Stock Plan; (k) The Company shall have provided Parent with documentation sufficient to ensure that Parent shall receive credit from Media Metrix for all visits to all websites owned by the Company during the month of March and its Subsidiariesthereafter, taken a form of which is attached hereto as Annex F; (l) Each Stockholder shall have delivered to Parent a wholestockholder representation letter substantially in the form attached hereto as Annex G; (m) Prior to the Effective Time, all outstanding shares of Company Preferred Stock shall have been cancelled and converted into shares of Company Common Stock and all warrants of the Company shall have been exercised, cancelled and converted into shares of Company Common stock; (n) Parent, the Company, the Escrow Agent and each Founder shall have executed and delivered a Founders Escrow Agreement and Founders Agreement Amendment substantially in the form attached hereto as Annex H; (o) All of the directors of the Company as of the date hereof, except for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, shall have resigned as directors; and (ep) Dissenting Shares shall comprise no more than fifteen percent (15%) Each of the issued and outstanding Company SharesStockholder Party Agreements shall have been terminated by all of the parties thereto.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective TimeTime of each of the following additional conditions, any or all of which may be waived in whole or part by Parent and Merger Sub, as the case may be, to the extent permitted by applicable Law: (iia) Each of the representations and warranties of the Company contained in this Agreement herein, shall be true and correct in all material respects respects, in each case, when made and on and as of the date Closing Date as though made on and as of this Agreement and the Closing Date with the same force and effect as if made on the Closing Date (except (y) those for representations and warranties that address matters only made as of a particular date specified date, which shall remain be true and correct in all material respects, as the case may be, as of the specified date), except where any such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could would not reasonably be expectedexpected to result in a Company Material Adverse Effect. (b) The Company shall have performed or complied in all material respects with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the time of the Closing. (c) The Company shall have delivered to Parent (i) a certificate, individually or dated the date of the Closing, signed by an officer of the Company, certifying as to the satisfaction of the conditions specified in Sections 7.2(a) and 7.2(b), and (ii) a certificate of good standing for the Company in the aggregateState of Delaware and of its Subsidiaries (where applicable) in their jurisdiction of incorporation, dated as of a date reasonably close to have a Material Adverse Effect and the Closing Date. (iiid) Parent shall have received a certificate signed counterparts to the Escrow Agreement executed by the chief executive officer of Principal Shareholders and the Company to the foregoing effect;Escrow Agent. (be) the The Company shall have received all consentsobtained, waivers or caused to be obtained, each consent described on Schedule 7.2(e). (f) The Company shall have delivered to Parent a non-compete and approvals required non-solicitation agreement substantially in connection the form of Exhibit B executed by each of the Principal Stockholders. (g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have entered into an employment arrangement with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses Company or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or Parent substantially in the aggregate, reasonably be expected to form of Exhibit C. (h) There shall not have been a Company Material Adverse Effect on the Company;Effect. (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation The number of shares of Company Common Stock held by Dissenting Stockholders shall not comprise more than 1% of the Merger or any total outstanding shares of the other transactions contemplated by this Agreement; Company Common Stock. (iij) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights A pay off letter with respect to the stock of Company’s loans from Citizens Bank and a release with respect to the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there Company’s loan from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have not occurred any event or change since been received by the date of the Agreement that has had or could Company, each in form and substance reasonably be expected acceptable to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company SharesParent.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (oror waiver by Parent, if permissible under Applicable Law), at or prior to the extent legally permissibleClosing, waiver) of the following further conditions: (a) Representations and Warranties. (i) Other than the Company shall have performed representations and warranties listed in all material respects all of its obligations Section 8.02(a)(ii) and covenants hereunder required to be performed by it at or prior to the Effective TimeSection 8.02(a)(iii), (ii) the representations and warranties of the Company contained set forth in this Agreement shall will be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except for such failures to be true and correct that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (ii) The representations and warranties set forth in Section 4.01(a), Section 4.02, the last sentence of Section 4.05(a) and Section 4.22 that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all material respects as of the date hereof and as of this Agreement and the Closing Date with the same force and effect as if made on at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such earlier date); and (yB) those are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date). (iii) The representations and warranties that address matters only set forth in the first sentence of Section 4.05(a), the first sentence of Section 4.05(b) and the first sentence of Section 4.05(c) will be true and correct in all respects as of a particular the date shall remain hereof and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Scheduleearlier date), except those consents, waivers or approvals the failure to obtain would not, individually or for any inaccuracies that are de minimis in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger nature and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company Sharesamount.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it fulfillment at or prior to the Effective TimeTime of the following conditions, any or all of which may be waived in whole or in part by Parent and Merger Sub to the extent permitted by applicable law: (iia) The Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 6.1 that are reasonably deemed necessary by Parent to consummate the Merger; (b) The representations and warranties of the Company contained set forth in this Agreement Section 6.2 shall be true and correct in all material respects (except for representations qualified by materiality or Material Adverse Effect which shall be correct in all respects) as of the date of this Agreement and the Closing Date Effective Time, with the same force and effect as if made on and as of the Closing Date Effective Time, except (y) those for representations and warranties that address matters only made as of a particular date specific date, which shall remain be true and correct in all material respects (except for representations qualified by materiality or Material Adverse Effect which shall be correct in all respects) as of such date and (z) (other than those in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and (iii) Parent shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Companyspecific date; (c) The Company shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; and (d) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company, nor shall there have occurred any event or development which could reasonably be pending any suitlikely to result in a Material Adverse Effect upon the business of the Company in the future. (e) A final draft of a Current Report on Form 8-K (the “Super 8-K”), proceeding or investigation: (i) challenging or seeking to restrain or prohibit which discloses the consummation of the Merger or any of the other transactions contemplated by this Agreement; (ii) relating Merger, and which also includes all information required to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends reported with respect to a “reverse merger” transaction with a public “shell company” including, without limitation, the information required pursuant to Item 2.01(f) – Completion of Acquisition or otherwise exercise ownership rights with respect to the stock Disposition of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Assets and Item 5.06 – Change in Shell Company or Parent; (d) there Status - shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on been prepared by the Company and its Subsidiariesapproved by Parent and their respective legal advisors, taken as a whole; andto be filed with the SEC within four (4) business days after the Closing. (ef) Dissenting Shares Parent shall comprise no more than fifteen percent (15%be satisfied that the issuance of the Parent Common and the assumption of the Company Options in connection with the Merger shall be exempt from registration under Regulation D of the Securities Act and Section 4(2) of the issued Securities Act, or Regulation S promulgated by the SEC, and outstanding all applicable state securities laws. (g) Company Sharesshall prepare and, subject to Parent’s approval of the form and substance thereof (which approval shall not be unreasonably withheld or delayed), Parent shall file with the SEC the information required by Rule 14f-1 promulgated under the Exchange Act, in connection with the proposed change in the directors serving on the Board of Directors of Parent after the Merger, and shall mail such information as required, to each of Company’s stockholders prior to the Closing.

Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (or, where permissible) on or prior to the extent legally permissible, waiver) Closing Date by Parent of the following further additional conditions: (a) the Company shall have performed in all material respects all each of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company contained in this Agreement (without giving effect to any materiality qualifications or limitations therein or any references therein to Company Material Adverse Effect) shall be true and correct correct, in all material respects each case as of the date of this Agreement and the Closing Date with the same force and effect Effective Time as if though made on and as of the Closing Date Effective Time, except (yi) for such failures, individually or in the aggregate, to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect; (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date and (z) (other than those in Section 4.2 of this Agreement) date, subject to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expected, individually or qualifications in the aggregate, to have a Material Adverse Effect (i) above; and (iii) for changes expressly permitted or contemplated by the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by the chief executive a duly authorized officer of the Company to the foregoing such effect; (b) the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by the Company on or prior to the Effective Time, and Parent shall have received all consents, waivers and approvals required in connection with the consummation of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 a certificate signed on behalf of the Company Disclosure Scheduleby a duly authorized officer of the Company to that effect; (c) the Company shall have received, except those consentseach in form and substance reasonably satisfactory to Parent, waivers or approvals all third party consents necessary to consummate the Transactions, the failure of which to obtain would notreasonably be expected to have a Company Material Adverse Effect; (d) no event or events shall have occurred, which, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect; (ce) the Company shall have executed the Certificate of Merger for filing pursuant to SECTION 1.02 hereof with the Secretary of State of the State of Delaware; (f) the Company shall have delivered to Parent the fully executed Board Resignations and Officer Resignations; (g) there shall not be pending or threatened any suit, action, investigation or proceeding or investigation: to which a Governmental Authority is a party (i) challenging or seeking to restrain or prohibit the 52 consummation of the Merger Transactions or any of the other transactions contemplated by this Agreement; (ii) relating to the Merger and seeking to obtain from Parent, Parent or the Company or any of their respective Subsidiaries any damages that may be are material to Parent or the Company, as applicable; (iiiii) seeking to prohibit or limit in the ownership or operation by Parent or the Company of any material respect Parent’s ability to vote, receive dividends with respect to portion of their respective businesses or otherwise exercise ownership rights with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parentassets; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (eh) Dissenting Shares shall comprise no not more than fifteen percent (15%) 10% of the issued Company Common Stock outstanding immediately prior to the Effective Time; and (i) the Company shall have amended that certain Product Purchase Agreement by and outstanding between the Company Sharesand Alpharma to (i) provide that the assignment and assumption of certain GPO contracts from the Company to Alpharma was in part and not in whole and (ii) obtain all third party consents associated with consummation of the transactions contemplated by the Product Purchase Agreement.

Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate effect the Merger are subject to the satisfaction (or, at or prior to the extent legally permissible, waiver) Effective Time of the following further conditions: (a) the Company shall have performed in all material respects all of its obligations and covenants hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of the Company contained in this Agreement Article III shall be true and correct in all material respects as of the date of this Agreement and the Closing Date with the same force and effect as if made on at and as of the Closing Date Effective Time (except (y) those for representations and warranties that address matters expressly relate to a specific date prior to the Effective Time which need only as of a particular date shall remain be true and correct as of such date earlier date); provided, however, that this condition shall be deemed satisfied unless any and (z) (other than those all inaccuracies in Section 4.2 of this Agreement) to the extent that failure of the representations and warranties to be so true and correct could not reasonably be expectedcontained in Article III, individually or in the aggregate, to have result in a Material Adverse Effect on the Company (ignoring for the purposes of this Section any qualifications by Material Adverse Effect or otherwise by material adversity and any materiality qualification or words of similar import contained in such representations or warranties), and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (iiib) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (c) no Material Adverse Effect on the Company shall have occurred since the date of this Agreement, and, at the Closing, the Company shall have delivered to Parent a certificate signed by its chief executive officer and chief financial officer to that effect; (d) the Escrow Agreement substantially in the form of Exhibit A hereto, shall have been duly executed and delivered by the Holder Representative and the Escrow Agent; (e) the holders of not more than 5% of the outstanding shares of Common Stock and Preferred Stock (calculated, with respect to the Preferred Stock, on an as-converted basis) in the aggregate shall have exercised their appraisal rights in accordance with Section 262 of the DGCL; (f) Intentionally omitted; (g) the employees of the Company listed in Section 6.2(g) of the Disclosure Schedule shall have signed (as indicated on the Section 6.2(g) of the Disclosure Schedule) employment agreements in the form attached hereto as Exhibit G or employment continuation letters; (h) the Company shall have delivered to Parent the Company Transaction Expense Notice, pursuant to Section 2.12(b) and the updated Merger Consideration Schedule pursuant to Section 2.12(c); (i) the Company shall have delivered to Parent the payoff letters and Encumbrance-release documentation pursuant to Section 2.12(f); (j) holders of eighty-five percent (85%) of the outstanding shares of Preferred Stock and holders of eighty-five percent (85%) of the outstanding Common Stock shall have executed the written consent in the form attached as Exhibit F hereto approving, among other things, a schedule identical to the Merger Consideration Schedule setting forth the estimated payments to be made by Parent with respect to the Preferred Stock, Common Stock, In-the-Money Options and In-the-Money Warrants in accordance with the terms hereof; (k) Parent shall have received legal opinions from P▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Meitar, Liquornik, Geva & Leshem B▇▇▇▇▇▇▇▇ and O▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the forms attached hereto as Exhibit H; and (l) Parent shall have received a certificate signed executed by the chief executive officer Secretary of the Company to the foregoing effect; (b) the Company shall have received all consents, waivers and approvals required in connection with the consummation certifying as of the transactions contemplated hereby in connection with the agreements, contracts, licenses or leases set forth in Section 4.5 Closing Date (i) a true and complete copy of the Company Disclosure Schedule, except those consents, waivers or approvals the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; (c) there shall not be pending any suit, proceeding or investigation: (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement; Charter and Company By-Laws and (ii) relating to the Merger and seeking to obtain from Parent, the Company or any of their respective Subsidiaries any damages that may be material to Parent or the Company, as applicable; (iii) seeking to prohibit or limit in any material respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights incumbency matters with respect to the stock of the Surviving Corporation; or (iv) which, if adversely determined could have a Material Adverse Effect on the Company or Parent; (d) there shall have not occurred any event or change since the date of the Agreement that has had or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and (e) Dissenting Shares shall comprise no more than fifteen percent (15%) of the issued and outstanding Company SharesCompany.