{"id":42996,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-24-7-media-inc-sabela-media.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-24-7-media-inc-sabela-media","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-24-7-media-inc-sabela-media.html","title":{"rendered":"Agreement and Plan of Merger &#8211; 24\/7 Media Inc., Sabela Media Inc., James Green, Freshwater Consulting Ltd. and Galmos Holdings Ltd."},"content":{"rendered":"<pre>\n                          AGREEMENT AND PLAN OF MERGER\n\n\n                                  By and Among\n\n                                24\/7 Media, Inc.,\n\n                            Killer-App Holding Corp.\n\n                               Sabela Media, Inc.\n\n                                       and\n\n        James Green, Freshwater Consulting Ltd. and Galmos Holdings Ltd.\n\n\n                           Dated as of January 9, 2000\n\n\n\n\n\n\n\n\n\n\n\n\n                                       1\n\n\n\n\n\n     AGREEMENT AND PLAN OF MERGER, dated as of January 9, 2000 (this\n\"Agreement\"), by and among 24\/7 Media, Inc., a Delaware corporation (\"24\/7\"),\nKiller-App Holding Corp., a Delaware corporation and a wholly-owned subsidiary\nof 24\/7 (the \"Subsidiary\"), Sabela Media, Inc., a Delaware corporation (the\n\"Company\"), James Green (\"Green\"), Freshwater Consulting Ltd. (\"Freshwater\") and\nGalmos Holdings Ltd. (\"Galmos,\" and Green, Freshwater and Galmos are referred to\ncollectively as the \"Stockholders\").\n\n     WHEREAS, upon the terms and subject to the conditions of this\nAgreement and in accordance with the General Corporation Law of the State of\nDelaware (\"Delaware Law\"), 24\/7, Subsidiary and the Company intend to enter into\na business combination transaction;\n\n     WHEREAS, the Board of Directors of the Company (i) has determined that the\nMerger (as defined below) is fair to, and in the best interest of, the Company\nand its stockholders, and (ii) has approved this Agreement, the Merger and the\nother transactions contemplated by this Agreement;\n\n     WHEREAS, the holders of a majority of the outstanding shares of the capital\nstock of the Company have authorized, approved and adopted this Agreement, the\nMerger and the other transactions contemplated by this Agreement;\n\n     WHEREAS, the Boards of Directors of 24\/7 and the Subsidiary (i) have\ndetermined that the Merger is fair to, and in the best interest of, 24\/7, the\nSubsidiary and their stockholders, and (ii) have approved this Agreement, the\nMerger and the other transactions contemplated by this Agreement;\n\n     WHEREAS, each Stockholder is the owner of such number of shares of capital\nstock (the \"Shares\") of the Company as is set forth in Schedule 1 hereto (the\n\"Ownership Table\");\n\n     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants\nand agreements herein contained, and intending to be legally bound hereby, 24\/7,\nthe Subsidiary and the Company hereby agree as follows:\n\n\n                                       2\n\n\n\n                                    ARTICLE I\n                                   THE MERGER\n\n     1.1    The Merger. At the Effective Time (as defined in Section 1.2(a))\nand subject to and upon the terms and conditions of this Agreement and the\napplicable provisions of Delaware Law, the Subsidiary shall be merged with and\ninto the Company (the \"Merger\"), the separate corporate existence of the\nSubsidiary shall cease, and the Company shall continue as the surviving\ncorporation. The Company as the surviving corporation after the Merger is\nhereinafter sometimes referred to as the \"Surviving Corporation.\"\n\n     1.2    Effective Time; Closing.\n            -----------------------\n\n            (a)    As promptly as practicable after the Closing (as defined in\nSection 1.2(b)), the parties hereto shall cause the Merger to be consummated by\nfiling a certificate of merger with the Secretary of State of the State of\nDelaware, in such form as required by, and executed in accordance with the\nrelevant provisions of, Delaware Law (the \"Certificate of Merger\"). When used in\nthis Agreement, the term \"Effective Time\" shall mean the date and time at which\nthe Merger shall become effective under Delaware Law.\n\n            (b)    The closing of the transactions contemplated by this\nAgreement (the \"Closing\") shall be held at the offices of Proskauer Rose LLP,\n1585 Broadway, New York, New York 10036, on the date hereof, or at another time\nand date to be specified by the parties, which shall be no later than the second\nbusiness day after the satisfaction or waiver, as the case may be, of the\nconditions set forth in Article VI, or at such other time, date and location as\nthe parties hereto agree in writing (the \"Closing Date\").\n\n     1.3    Effect of the Merger. At the Effective Time, the effect of the\nMerger shall be as provided in this Agreement and the applicable provisions of\nDelaware Law. Without limiting the generality of the foregoing, and subject\nthereto, at the Effective Time all the rights, privileges, powers, franchises\nand property of the Subsidiary and the Company shall vest in the Surviving\nCorporation, and all restrictions, disabilities, duties, debts and liabilities\nof the Subsidiary and the Company shall become the restrictions, disabilities,\nduties, debts and liabilities of the Surviving Corporation.\n\n     1.4    Certificate of Incorporation; By-Laws.\n            -------------------------------------\n\n            (a)    At the Effective Time, the Certificate of Incorporation of\nthe Subsidiary, as in effect immediately prior to the Effective Time, shall be\nthe Certificate of Incorporation of the Surviving Corporation, and shall\ncontinue in full force and effect until thereafter amended; provided, however,\nthat at the Effective Time Article I of the Certificate of Incorporation of the\nSurviving Corporation shall be amended to read: \"The name of the corporation is\nSabela Media, Inc.\"\n\n                                       3\n\n\n\n            (b)    At the Effective Time, the Bylaws of the Subsidiary, as in\neffect immediately prior to the Effective Time, shall be the bylaws of the\nSurviving Corporation until thereafter amended.\n\n     1.5    Directors and Officers. The directors and officers of the\nSubsidiary shall be the directors and officers of the Surviving Corporation, in\neach case until their respective successors are duly elected or appointed and\nqualified.\n\n     1.6    Effect on Capital Stock. At the Effective Time, by virtue of the\nMerger and without any action on the part of the Subsidiary, the Company or the\nholders of any of the following securities:\n\n            (a)    Conversion of Company Common Stock. Each share of common\nstock, par value $0.001 per share, of the Company (\"Company Common Stock\")\nissued and outstanding immediately prior to the Effective Time, other than any\nshares of Company Common Stock to be canceled pursuant to Section 1.6(c), will\nbe canceled and extinguished and automatically converted (subject to Sections\n1.6(e) and (f)) into the right to receive (the \"Exchange Ratio\") (i) 0.1104 of a\nshare of validly issued, fully paid and nonassessable common stock, par value\n$0.01 per share, of 24\/7 (the \"24\/7 Common Stock\"), and (ii) U.S. $0.2051, upon\nsurrender of the certificates representing such shares of Company Common Stock.\n\n            (b)    (i)    The Company's obligations with respect to each\noutstanding option, as set forth on Schedule 1.6(b) hereto (the \"Assumed\nOptions\") other than those options designated on such schedule as \"non-assumed\noptions\" (the \"Non-assumed Options\"), to purchase shares of common stock of the\nCompany issued pursuant to the Company's 1999 Stock Option\/Stock Issuance Plan\n(the \"Company Option Plan\"), whether vested or unvested, shall, by virtue of\nthis Agreement and without any further action of the Company, 24\/7 or the holder\nof any Assumed Option, be assumed by 24\/7 under its 1998 Stock Incentive Plan.\nUnless otherwise elected by 24\/7 prior to the Effective Time, 24\/7 shall make\nsuch assumption in such manner that (i) 24\/7 is a corporation \"assuming a stock\noption in a transaction to which Section 424(a) applies\" within the meaning of\nSection 424 of the Code or (ii) to the extent that Section 424 of the Code does\nnot apply to such Assumed Option, 24\/7 would be such a corporation were Section\n424 of the Code applicable to such Assumed Option; and, if not so otherwise\nelected, after the Effective Time, all references to the Company Option Plan\nshall be deemed to refer to 24\/7's 1998 Stock Incentive Plan as of the Effective\nTime by virtue of this Agreement and without any further action. In connection\ntherewith, the Company shall, and hereby does, assign to 24\/7 effective at the\nClosing any and all \"repurchase rights\" of the Company with respect to the\nAssumed Options and Option Shares. \"Option Shares\" means shares of Company\nCommon Stock purchased upon exercise of options under the Company Option Plan\nprior to vesting of such options.\n\n                   (ii)   Each Assumed Option so assumed by 24\/7 under this\nAgreement shall continue to have, and be subject to, similar terms and\nconditions set forth in the Company Option Plan as in effect immediately prior \nto the Effective Time, except that (i) such \n\n\n                                       4\n\n\n\n\n\nAssumed Option shall be governed by 24\/7's 1998 Stock Incentive Plan, (ii) such\nAssumed Option will be exercisable for that number of shares of 24\/7 Common\nStock equal to the product of the number of shares of common stock of the\nCompany that were purchasable under such Assumed Option immediately prior to the\nEffective Time multiplied by 0.1146 (the \"Option Ratio\"), rounded to the nearest\nwhole number of shares of 24\/7 Common Stock, and (iii) the per share exercise\nprice for the shares of 24\/7 Common Stock issuable upon exercise of such Assumed\nOption will be equal to the exercise price per share of common stock of the\nCompany at which such Assumed Option was exercisable immediately prior to the\nEffective Time divided by the Option Ratio, and rounding the resulting exercise\nprice up to the nearest whole cent.\n\n                   (iii)  As soon as reasonably practicable after the Effective \nTime, the Company will deliver to Assumed Option holders appropriate notices\nsetting forth such holders' rights pursuant to 24\/7's 1998 Stock Incentive Plan\nand confirming that the Assumed Options have been assumed by 24\/7 under its 1998\nStock Incentive Plan in accordance with the terms and conditions required by\nthis Section 1.6(b).\n\n                   (iv)   24\/7 shall not assume any obligations of the Company \nwith respect to the Non-assumed Options. Each holder of Non-assumed Options\nshall be given the opportunity to exercise such Non-assumed Option effective\nimmediately prior to the Effective Time.\n\n            (c)    Cancellation of Company-Owned Stock. Each share of Company\nCommon Stock held by the Company immediately prior to the Effective Time shall\nbe canceled and extinguished without any conversion thereof.\n\n            (d)    Capital Stock of the Subsidiary. Each share of common stock, \npar value $0.01 per share, of the Subsidiary issued and outstanding immediately\nprior to the Effective Time shall be exchanged for and converted into one\nvalidly issued, fully paid and non-assessable share of common stock, par value\n$0.01 per share, of the Surviving Corporation. Each stock certificate of the\nSubsidiary evidencing ownership of any such shares shall evidence ownership of\nsuch shares of capital stock of the Surviving Corporation.\n\n            (e)    Fractional Shares.  No fraction of a share of 24\/7 Common \nStock shall be issued by virtue of the Merger, but in lieu thereof each holder\nof a share of Company Common Stock who would otherwise be entitled to a fraction\nof a share of 24\/7 Common Stock (after aggregating all fractional shares of 24\/7\nCommon Stock that otherwise would be received by such holder) shall receive from\n24\/7 an amount of cash (rounded to the nearest whole cent) equal to the product\nof (i) such fraction, multiplied by (ii) the average closing price of one share\nof 24\/7 Common Stock for the ten (10) most recent days that 24\/7 Common Stock\nhas traded ending on the trading day immediately prior to the Effective Time, as\nreported on the Nasdaq National Market System (\"Nasdaq\").\n\n            (f)    Adjustments to Exchange Ratio.  The Exchange Ratio shall be \nadjusted to reflect fully the appropriate effect of any stock split, reverse \nstock split, stock \n\n                                       5\n\n\n\ndividend (including any dividend or distribution of securities convertible into\n24\/7 Common Stock), reorganization, recapitalization, reclassification or other\nlike change with respect to 24\/7 Common Stock occurring on or after the date\nhereof and prior to the Effective Time.\n\n            (g)    All Other Capital Stock of the Company.  All other capital \nstock of the Company shall be canceled and retired and shall cease to exist, and\nno consideration shall be issued or delivered in exchange therefor.\n\n     1.7    Surrender and Payment.\n            ---------------------\n\n            (a)    The Merger Consideration delivered upon the surrender for \nexchange of the shares of Company Common Stock in accordance with the terms\nhereof shall be deemed to have been issued in full satisfaction of all rights\npertaining to such shares, and after the Effective Time, there shall be no\nfurther registration or transfers of shares of Company Common Stock outstanding\nprior to the Closing Date. If after the Effective Time certificates which\nimmediately prior to the Effective Time represented outstanding shares of\nCompany Common Stock (the \"Certificates\") are presented to the Surviving\nCorporation for any reason, they shall be canceled and exchanged as provided in\nthis Article I.\n\n            (b)    If certificates for shares of 24\/7 Common Stock are to be \nissued in the name of a person other than the person in whose name the\nsurrendered Certificate is registered, it shall be a condition of the issuance\nthereof that the Certificates so surrendered shall be properly endorsed or shall\nbe otherwise in proper form for transfer and that the person requesting such\nexchange shall have paid to 24\/7 or any agent designated by it any transfer or\nother taxes required by reason of the issuance of certificates for shares of\n24\/7 Common Stock in the name of a person other than the registered holder of\nthe Certificate surrendered or shall have established to the satisfaction of\n24\/7 or any agent designated by it that such tax either has been paid or is not\napplicable.\n\n     1.8    Escrow Indemnity Account. Promptly after the Closing Date, 24\/7 \nshall deliver to the escrow agent (the \"Escrow Agent\") under the escrow\nagreement dated the Closing Date, substantially in the form of Exhibit A hereto\n(the \"Escrow Indemnity Agreement\"), a certificate representing 312,588 shares of\n24\/7 Common Stock otherwise deliverable to the Stockholders, to be held pursuant\nto the provisions of the Escrow Indemnity Agreement to be held in an escrow\naccount (the \"Escrow Indemnity Account\") pursuant to the terms of the Escrow\nIndemnity Agreement.\n\n     1.9    Dissenters' Rights. The holders of shares of Company Common Stock as\nto which dissenters' rights shall have been duly demanded under applicable law\n(\"Dissenting Shares\"), if any, shall be entitled to payment by the Surviving\nCorporation only of the fair value of such shares plus accrued interest to the\nextent permitted by and in accordance with the provisions of applicable law;\nprovided, however, that (i) if any holder of the Dissenting Shares shall, under\nthe circumstances permitted by applicable law, subsequently deliver a written\nwithdrawal of such holder's demand or (ii) if any holder fails to establish such\nholder's \n\n                                       6\n\n\n\n\nentitlement to rights to payment as provided under applicable law, such holder\nor holders (as the case may be) shall forfeit such right to payment for such\nshares and such shares shall thereupon be deemed to have been converted into\n24\/7 Common Stock as of the Effective Time.\n\n     1.10   Lost, Stolen or Destroyed Certificates. If any Certificates shall\nhave been lost, stolen or destroyed, 24\/7 shall issue in exchange for such lost,\nstolen or destroyed Certificates, upon the making of an affidavit of that fact\nby the holder thereof, the Merger Consideration; provided, however, that 24\/7\nmay, in its discretion and as a condition precedent to the issuance and delivery\nthereof, require the owner of such lost, stolen or destroyed Certificates to\ndeliver a bond in such sum as it may reasonably direct as indemnity against any\nclaim that may be made against 24\/7 or the Company with respect to the\nCertificates alleged to have been lost, stolen or destroyed.\n\n     1.11   Taking of Necessary Action; Further Action. If, at any time after \nthe Effective Time, any such further action is necessary or desirable to carry\nout the purposes of this Agreement and to vest the Surviving Corporation with\nfull right, title and possession to all assets, property, rights, privileges,\npowers and franchises of the Company and the Subsidiary, the officers and\ndirectors of the Company and the Subsidiary are fully authorized in the name of\ntheir respective corporations or otherwise to take, and will take, all such\nlawful and necessary action. 24\/7 shall cause the Subsidiary to perform all of\nits obligations relating to this Agreement and the transactions contemplated\nhereby.\n\n\n                                   ARTICLE II\n                  REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\n     Except as disclosed in that section of the document of even date herewith\ndelivered by the Company to 24\/7 prior to the execution and delivery of this\nAgreement (the \"Company Disclosure Schedule\") corresponding to the section of\nthis Agreement to which any of the representations and warranties specifically\nrelate or as disclosed in another section of the Company Disclosure Schedule if\nit is reasonably apparent on the face of the disclosure that it is applicable to\nanother section of this Agreement, the Company and the Stockholder represent and\nwarrant to 24\/7 as follows:\n\n     2.1    Organization and Qualification; Subsidiaries. The Company and each \nof its subsidiaries is a corporation or other legal entity duly organized,\nvalidly existing and in good standing under the laws of the jurisdiction of its\nincorporation and has the requisite power and authority to own, lease and\noperate the properties it purports to own, operate or lease and to carry on its\nbusiness as it is now being conducted and as currently proposed to be conducted,\nexcept where the failure to be so organized, existing and in good standing or to\nhave such power and authority would not reasonably be expected to have a\nmaterial adverse effect on the business, results of operations or financial\ncondition of the Company, taken as a whole, or on the ability of the parties to\nconsummate the transactions contemplated by this Agreement (\"Company Material\nAdverse Effect\"). The Company and each of its subsidiaries is duly qualified or\nlicensed \n\n\n                                       7\n\n\n\nas a foreign corporation or other legal entity to do business, and is in good\nstanding, in each jurisdiction where the character of its properties owned,\nleased or operated by it or the nature of its activities makes such\nqualification or licensing necessary, except for such failures to be so duly\nqualified or licensed and in good standing that would not reasonably be expected\nto have a Company Material Adverse Effect. A true and complete list of all of\nthe Company's subsidiaries, together with the jurisdiction of incorporation of\neach subsidiary and the percentage of each subsidiary's outstanding capital\nstock owned by the Company or another subsidiary, is set forth in Section 2.1 of\nthe Company Disclosure Schedule. Except as set forth in Section 2.1 of the\nCompany Disclosure Schedule, the Company does not, directly or indirectly, own\nany equity or similar interest in, or any interest convertible into or\nexchangeable or exercisable for, any equity or similar interest in, any\ncorporation, partnership, joint venture or other business association or entity.\n\n     2.2    Certificate of Incorporation and By-Laws. The Company has heretofore\nfurnished to 24\/7 a complete and correct copy of its Certificate of\nIncorporation (certified by the Secretary of State of the State of Delaware) and\nBy-Laws, as amended to date, and a complete and correct copy of the equivalent\norganizational documents of each of its subsidiaries. Such Certificate of\nIncorporation, By-Laws and equivalent organizational documents of the Company\nand each of its subsidiaries are in full force and effect. Neither the Company\nnor any of its subsidiaries is in violation of any of the provisions of its\nrespective Certificate of Incorporation or By-Laws or equivalent organizational\ndocuments.\n\n     2.3    Company Capital Structure.\n            -------------------------\n\n            (a)    The authorized capital stock of the Company consists of\n96,000,000 shares of Company Common Stock, of which there were 10,335,233 shares\nissued and outstanding as of date hereof. All of the outstanding shares of\nCompany Common Stock and preferred stock and all of the outstanding shares of\ncapital stock of each of the Company's subsidiaries are duly authorized, validly\nissued, fully paid and nonassessable and are not subject to preemptive or\nsimilar rights created by statue, the Certificate of Incorporation or Bylaws of\nthe Company or any of its subsidiaries or any agreement or document to which the\nCompany or any subsidiary is a party or by which any of them is bound. As of the\ndate of this Agreement there were no shares of Company Common Stock held in\ntreasury by the Company.\n\n            (b)    Immediately prior to the execution of this Agreement\n1,329,910 shares of Company Common Stock are issuable pursuant to outstanding\noptions (whether or not currently exercisable) to purchase Company Common Stock\ngranted under the Company stock option plans for an aggregate exercise price of\n$1,329,901, all of which shares of Company Common Stock were reserved for\nissuance pursuant to the Company Option Plan.\n\n            (c)    As of the date of this Agreement 952,414 shares of Company \nCommon Stock are issuable pursuant to outstanding warrants (whether or not\ncurrently exercisable) to purchase Company Common Stock for an aggregate\nexercise price of $1,047,655.\n\n                                       8\n\n\n\n\n     2.4    Obligations with Respect to Capital Stock. Except as set forth in \nSection 2.3 of this Agreement, there are no equity securities, partnership\ninterests or similar ownership interests of any class of any Company equity\nsecurity, or any securities exchangeable or convertible into or exercisable for\nsuch equity securities, partnership interests or similar ownership interests,\nissued, reserved for issuance or outstanding. Except for securities which the\nCompany owns free and clear of all claims and Encumbrances (as defined below),\ndirectly or indirectly through one or more subsidiaries, there are no equity\nsecurities, partnership interests or similar ownership interests of any class of\nequity security of any subsidiary of the Company, or any security exchangeable\nor convertible into or exercisable for such equity securities, partnership\ninterests or similar ownership interests, issued, reserved for issuance or\noutstanding. For the purposes of this Agreement \"Encumbrances\" means any lien,\npledge, hypothecation, charge, mortgage, security interest, encumbrance, claim,\ninfringement, interference, option, right of first refusal, preemptive right,\ncommunity property interest or restriction of any nature (including any\nrestriction on the voting of any security, any restriction on the transfer of\nany security or other asset, any restriction on the receipt of any income\nderived from any asset, any restriction on the use of any asset and any\nrestriction on the possession, exercise or transfer of any other attribute of\nownership of any asset) but does not include liens imposed by law in respect of\nobligations not yet due which are owed in respect of taxes or which otherwise\nare owed to carriers, warehousepersons or laborers. Except as set forth in\nSection 2.3 of this Agreement, there are no subscriptions, options, warrants,\nequity securities, partnership interests or similar ownership interests, calls,\nrights (including preemptive rights), commitments or agreements of any character\n(contingent or otherwise) to which the Company or any of its subsidiaries is a\nparty or by which any of them is bound obligating the Company or any of its\nsubsidiaries to (i) issue, deliver or sell, or cause to be issued, delivered or\nsold, or repurchase, redeem or otherwise acquire, or cause the repurchase,\nredemption or acquisition of, any shares of capital stock, partnership interests\nor similar ownership interests of the Company or any of its subsidiaries; (ii)\ngrant, extend, accelerate the vesting of or enter into any such subscription,\noption, warrant, equity security, call, right, commitment or agreement; or (iii)\nprovide funds to or make any investment (in the form of a loan, capital\ncontribution or otherwise) in any subsidiary or any other entity other than\nguarantees of bank obligations of subsidiaries entered in the ordinary course of\nbusiness. As of the date of this Agreement, there is no voting trust, proxy or\nother agreement or understanding to which the Company is a party or by which it\nis bound with respect to any equity security of any class of the Company or with\nrespect to any equity security, partnership interest or similar ownership\ninterest of any class of any of its subsidiaries.\n\n     2.5    Authority Relative to this Agreement; Ownership.\n            -----------------------------------------------\n\n            (a)    The Company has all requisite power and authority to execute\nand deliver this Agreement and to perform its obligations hereunder and to\nconsummate the transactions contemplated hereby, as well as all other\nagreements, certificates and documents executed or delivered, or to be executed\nor delivered, by the Company in connection herewith (collectively, with this\nAgreement, the \"Company Documents\"). The execution and delivery of this\nAgreement by the Company and the consummation by the Company of the transactions\ncontemplated hereby have been duly and validly authorized by all necessary\naction on the part of \n\n\n\n                                       9\n\n\n\n\nthe Company, and no other proceedings are necessary to authorize this Agreement\nor to consummate the transactions contemplated hereby, except for the filing of\nthe Certificate of Merger pursuant to Delaware Law. Each of the Company\nDocuments to which the Company is, or will be, a party has been, or will be,\nduly and validly executed and delivered by the Company, and, assuming the due\nauthorization, execution and delivery of the Company Documents by 24\/7 and\/or\nthe Subsidiary, as applicable, are (or when executed and delivered will be)\nlegal, valid and binding obligations of the Company, enforceable against the\nCompany in accordance with their respective terms, except as limited by (i)\napplicable bankruptcy, insolvency, reorganization, moratorium and other laws of\ngeneral application affecting the enforcement of creditors' rights generally and\n(ii) general principles of equity, regardless of whether asserted in a\nproceeding in equity or at law.\n\n            (b)    The Board of Directors of the Company (including any required\ncommittee or subgroup of the Board of Directors of the Company) at a meeting\nduly called at which all members were present has (a) unanimously declared that\nthis Agreement, the Merger and the other transactions contemplated hereby are\nfair to, and in the best interests of, the Company and its stockholders; (B)\nauthorized, approved and adopted this Agreement, the Merger and the other\ntransactions contemplated hereby; and (C) as of the date hereof, determined to\nrecommend that the stockholders of the Company approve and adopt this Agreement\nand approve the Merger. None of the aforesaid actions by the Board of Directors\nof the Company has been amended, rescinded or modified.\n\n            (c)    The holders of at least a majority of the outstanding shares \nof the Company Common Stock have authorized, approved and adopted this\nAgreement, the Merger and the other transactions contemplated hereby and have\nauthorized the taking of all appropriate action pursuant to Delaware Law to\ncause the Merger to be effective at the Effective Time. No other vote of the\nholders of any class or series of the Company's capital stock is necessary to\nauthorize, approve and adopt this Agreement and the Merger.\n\n            (d)    Each Stockholder is, and immediately prior to the Closing\nwill be, the record and beneficial owner of the number and class(es) of Shares\nset forth next to such Stockholder's name on the Ownership Table, free and clear\nof any and all liens, pledges, security interests, options, encumbrances,\ncharges, agreements or claims of any kind whatsoever. On the Closing Date, each\nStockholder will have the full right, power and authority to assign, transfer\nand deliver such Stockholder's Shares as provided in this Agreement, and such\ndelivery will convey to 24\/7 lawful, valid and marketable title to such Shares,\nfree and clear of any and all liens, pledges, security interests, options,\nencumbrances, charges, agreements or claims of any kind whatsoever.\n\n\n                                       10\n\n\n\n     2.6    No Conflicts, Required Filings and Consents.\n            -------------------------------------------\n\n            (a)    The execution and delivery of this Agreement by the Company \ndo not, and the performance of this Agreement by the Company will not, (i)\nconflict with or violate the Certificate of Incorporation or By-Laws of the\nCompany or equivalent organizational documents of any of its subsidiaries; (ii)\nsubject to compliance with the requirements set forth in Section 2.6(b) below,\nconflict with or violate any law, rule, regulation, order, judgment or decree\napplicable to the Company or any of its subsidiaries or by which the Company or\nits subsidiaries or any of their respective properties is bound or affected; or\n(iii) except as set forth in Section 2.6 of the Company Disclosure Schedule,\nresult in any breach of or constitute a default (or an event which with notice\nor lapse of time or both would become a default) under, or impair the Company's\nrights or alter the rights or obligations of any third party under, or give to\nothers any rights of termination, amendment, acceleration or cancellation of, or\nresult in the creation of an Encumbrance on any of the properties or assets of\nthe Company or any of its subsidiaries pursuant to, any note, bond, mortgage,\nindenture, contract, agreement, lease, license, permit, franchise or other\ninstrument or obligation to which the Company or any of the subsidiaries is a\nparty or by which the Company or any of its subsidiaries or any of their\nrespective properties is bound or affected, except, in the case of clauses (ii)\nand (iii), for such breaches, violations or defaults that would not have a\nCompany Material Adverse Effect.\n\n            (b)    The execution and delivery of this Agreement by the Company \ndoes not, and the performance of this Agreement by the Company will not, require\nany consent, approval, authorization or permit of, or declaration, registration\nor filing with or notification to, any court, administrative agency or\ncommission or other governmental authority or instrumentality, foreign or\ndomestic (a \"Governmental Entity\") except (i) such consents, approvals, orders,\nauthorizations, registrations and declarations and filings as may be required\nunder applicable federal and state securities (or related) laws, and (ii) such\nconsents, approvals, authorizations, filings and registrations which if not\nobtained or made, would not prevent or delay consummation of the Merger or\notherwise prevent the Company from performing its obligations under this\nAgreement.\n\n     2.7    Financial Statements. The Company has delivered to 24\/7 a\nconsolidated balance sheet as at June 30, 1999, and as at each month-end\nthereafter through December 31, 1999, and consolidated statements of income and\ncash flow for the period from inception through June 30, 1999 and for each month\nthereafter through December 31, 1999 (the \"Company Financial Statements\"). The\nCompany Financial Statements are in accordance with the books and records of the\nCompany, and reflect accurately in all material respects the financial position,\nresults of operations and changes in financial position of the Company as at the\ndates and for the periods indicated. The Company maintains and will continue to\nmaintain an adequate system of internal financial and accounting controls. The\naccounts receivable of the Company (i) arose in the ordinary course of business\nfor goods or services delivered or rendered, (ii) constitute only valid,\nundisputed claims and are not subject to counterclaims or setoffs, (iii) except\nas is disclosed in Section 2.7 of the Company Disclosure Schedule, are good and\ncollectible in full \n\n\n\n                                       11\n\n\n\n\nwithin 90 days of the date they were created at the aggregate recorded amounts\nthereof net of the reserve therefor and (iv) have not been extended or rolled\nover in order to make them current.\n\n     2.8    No Undisclosed Liabilities. Except as is disclosed in Section 2.8 of\nthe Company Disclosure Schedule, neither the Company nor any of its subsidiaries\nhas any liabilities (absolute, accrued, contingent or otherwise) of the type\nthat are required to be disclosed in financial statements, including the notes\nthereto, prepared in accordance with GAAP which are, individually or in the\naggregate, material to the business, operations or financial condition of the\nCompany and its subsidiaries taken as a whole, except liabilities (i) adequately\nprovided for or referred to in the Company's balance sheet and the related notes\nthereto as of June 30, 1999 included in the Company Financial Statements (the\n\"Company Balance Sheet\"), (ii) incurred since the date of the Company Balance\nSheet in the ordinary course of business and consistent with past practice and\n(iii) incurred in connection with the transactions contemplated by this\nAgreement. The Company does not know of any basis for the assertion against the\nCompany of any other liability or loss contingency for which a reserve is\nrequired to be disclosed in the Company Financial Statements or the notes\nthereto, in accordance with GAAP.\n\n     2.9    Absence of Certain Changes or Events. Except as se forth in Section \n2.9 of the Company Disclosure Schedule, since June 30, 1999, the Company has\nconducted its business in the ordinary course and there has not occurred: (i)\nany Company Material Adverse Effect, (ii) any declaration, setting aside or\npayment of any dividend on, or other distribution (whether in cash, stock or\nproperty) in respect of any of the Company's capital stock, or any purchase,\nredemption or other acquisition by the Company of any of its capital stock or\nany other securities of the Company, (iii) any split, combination or\nreclassification of any of the Company's capital stock, (iv) any amendments or\nchanges in the Certificate of Incorporation or By-Laws of the Company or any of\nits subsidiaries; (v) any change by the Company in its accounting methods,\nprinciples or practices except as required by GAAP; (vi) any revaluation by the\nCompany of any of its assets, including, without limitation, writing down the\nvalue of capitalized software or inventory or writing off notes or accounts\nreceivable other than in the ordinary course of business; or (vii) any sale or\ntransfer of a material amount of assets of the Company or any subsidiary.\n\n     2.10   Absence of Litigation. Section 2.10 of the Company Disclosure \nSchedule contains a complete and correct list of all actions, suits,\nproceedings, claims or investigations pending or, to the knowledge of the\nCompany, threatened against the Company, any of its subsidiaries or any of their\nrespective assets or, in connection with the Company's business, any of the\nCompany's or its subsidiaries' officers, directors or employees before any\nGovernmental Entity. Except as set forth in Section 2.10 of the Company\nDisclosure Schedule, neither the Company nor, in connection with the Company's\nbusiness, any of the Company's or its subsidiaries' officers, directors or\nemployees is subject or party to any judgment, order, decree or other direction\nof, or stipulation with, any Governmental Entity. As of the date hereof, there\nare no actions, suits or proceedings pending or, to the knowledge of the\nCompany, threatened against the Company or any of the stockholders that seek to\nprevent or challenge, or seek damages in\n\n\n                                       12\n\n\n\nconnection with, the transactions contemplated by any of the Company Documents\nor otherwise arising out of or in any way related to any of the Company\nDocuments.\n\n     2.11   Employee Benefit Plans.\n            ----------------------\n\n(a) Neither the Company nor any entity that would be deemed a \"single employer\"\nwith the Company under Section 414(b), (c), (m) or (o) of the Internal Revenue\nCode (the \"Code\") or Section 4001 of the Employee Retirement Income Security Act\nof 1974, as amended (\"ERISA\") (an \"ERISA Affiliate\"), maintains, sponsors,\ncontributes to, or has or has had an obligation to, or otherwise participated in\nor participates in, or in any way, directly or indirectly, has or has had any\nliability with respect to, any \"employee benefit plan,\" as defined in Section\n3(3) of ERISA, or any other bonus, profit sharing, pension, deferred\ncompensation, incentive, stock option, fringe benefit, health, welfare, change\nin control, severance or other similar plan, policy, or arrangement, whether\nwritten or unwritten, insured or self-insured (each, a \"Plan\"). None of the\nCompany, any ERISA Affiliate or any of their respective predecessors has ever\ncontributed to, contributes to, has ever been required to contribute to, or\notherwise participated in or participates in, or in any way, directly or\nindirectly, has any liability with respect to, any plan subject to Section 412\nof the Code, Section 302 of ERISA or Title IV of ERISA, including, without\nlimitation, any \"multiemployer plan\" (within the meaning of Sections (3)(37) or\n4001(a)(3) of ERISA or Section 414(f) of the Code) or any single employer\npension plan (within the meaning of Section 4001(a)(15) of ERISA). The\nconsummation of the transactions contemplated by this Agreement will not give\nrise to any liability of the Company for severance pay or termination pay or\naccelerate the time of payment or vesting or increase the amount of compensation\nor benefits due to any employee, director, stockholder or beneficiary of the\nCompany (whether current, former or restricted) or their beneficiaries solely by\nreason of such transactions or by reason of a termination of employment\nfollowing such transactions. Section 2.11(a) of the Company Disclosure Schedule\ncontains a list of all Plans. A copy of each such Plan has previously been\ndelivered by the Company to 24\/7.\n\n            (b)    With respect to each of the Plans listed in Section 2.11(a)\nof the Company Disclosure Schedule:\n\n                   (i)    each Plan (or, if applicable, the underlying prototype\nplan document) intended to qualify under Section 401(a) of the Code has received\na determination letter from the Internal Revenue Service (\"IRS\") to the effect\nthat the Plan is qualified under Section 401 of the Code, any trust maintained\npursuant thereto is exempt from federal income taxation under Section 501 of the\nCode and to the knowledge of the Company, nothing has occurred or is expected to\noccur through the Closing Date that caused or could cause the loss of such\nqualification or exemption or the imposition of any penalty or tax liability;\n\n                   (ii)   all payments required by any Plan or by law \n(including, without limitation, all contributions, insurance premiums or\nintercompany charges) with respect to all periods through the Closing Date shall\nhave been made prior to the Closing (on a pro rata basis where such payments are\notherwise discretionary at year end) or provided for by the Company, \n\n\n\n                                       13\n\n\n\nas applicable, by full accruals as if all targets required by such Plan had been\nor will be met at maximum levels on its financial statements;\n\n                   (iii)  no claim, lawsuit, arbitration or other action has \nbeen asserted or instituted, or to the knowledge of the Company, threatened or\nanticipated against the Plans (other than non-material routine claims for\nbenefits and appeals of such claims), any trustee or fiduciaries thereof, the\nCompany, any ERISA Affiliate, any director, officer or employee thereof, or any\nof the assets of any trust of the Plans;\n\n                   (iv)   each Plan complies in all material respects and has \nbeen maintained and administered at all times in all material respects in\naccordance with its terms and all applicable laws, rules and regulations,\nincluding, without limitation, ERISA and the Code;\n\n                   (v)    to the knowledge of the Company, no \"prohibited \ntransaction,\" within the meaning of Section 4975 of the Code and Section 406 of\nERISA, has occurred or is expected to occur with respect to each Plan for which\nno exemption exists under Section 408 of ERISA or Section 4975 of the Code (and\nthe consummation of the transactions contemplated by this Agreement will not\nconstitute or directly or indirectly result in such a \"prohibited transaction\");\nand\n\n                   (vi)   no Plan is  under audit or to the knowledge of the\nCompany, investigation by the IRS, Department of Labor or any other governmental\nauthority and no such completed audit, if any, has resulted in the imposition of\nany material tax or penalty.\n\n            (c)    Neither the Company nor any ERISA Affiliate maintains,\ncontributes to or in any way provides for any benefits of any kind whatsoever\n(other than under Section 4980B of the Code, the Federal Social Security Act or\na plan qualified under Section 401(a) of the Code) to any current or future\nretiree or terminee. Neither the Company nor any ERISA Affiliate has any\nunfunded liabilities pursuant to any Plan that is not intended to be qualified\nunder Section 401(a) of the Code.\n\n     2.12   Labor Matters. Section 2.12 of the Company Disclosure Schedule \ncontains a list of the names, office locations, compensation and years of\ncredited service for severance, vacation and pension plan purposes of all full-\nand part-time employees of the Company as at December 31, 1999. The Company is\nnot a party to a collective bargaining agreement and does not know of any\nefforts within the last three years to attempt to organize the Company's\nemployees, and no strike or labor dispute involving the Company has occurred\nduring the last three years or, to the knowledge of the Company, is threatened.\nTo the knowledge of the Company, no key employee of the Company has indicated\nthat he is considering terminating his employment. The Company has complied with\nall material applicable wage and hour, equal employment, safety and other legal\nrequirements relating to its employees.\n\n     2.13   Taxes. Except as disclosed in Section 2.13 of the Company Disclosure\nSchedule, (A) the Company has timely and properly filed all federal, foreign,\nstate, local and \n\n\n                                       14\n\n\n\nother tax returns and reports which are required to be filed by it; (B) all such\ntax returns were true, correct and complete in all material respects, and all\ntaxes, interest and penalties due and payable as shown on such returns or\nclaimed to be due by any taxing authority have been timely paid; (C) all unpaid\nfederal, foreign, state, local and other taxes, fees, assessments, duties and\nother similar governmental charges payable by the Company or which will, with\nthe passage of time, become payable by the Company (including interest and\npenalties), whether or not disputed, with respect to any period or a portion\nthereof ending at, on or prior to and including September 30, 1999, have been\nadequately reserved against in accordance with GAAP on the face of the Company\nBalance Sheet; (D) there are no outstanding waivers or extensions of time with\nrespect to the assessment or audit of any tax or tax return of the Company or\naudits, examinations or claims now pending or matters under discussion with any\ntaxing authority in respect of any tax of the Company; (E) the Company has not\nat any time consented to have the provisions of Section 341(f)(2) of the Code\napply to it; (F) all taxes to be collected or withheld by the Company have been\nduly collected or withheld and any such amounts that were required to be\nremitted to any taxing authority have been duly remitted; (G) there are no tax\nrulings, requests for rulings, closing agreements or changes of accounting\nmethod relating to the Company that could affect its tax liability for any\nperiod after the Effective Time. The Company has not used any of the following\nmethods of accounting: installment, completed contract, or long-term contract.\nFor purposes of this Agreement, \"tax\" or \"taxes\" means taxes of any kind, levies\nor other like assessments, customs, duties, imposts, charges and including,\nwithout limitation, income, gross receipts, ad valorem, value added, excise,\nreal and personal property, asset, sales, use, license, payroll, transaction,\ncapital, net worth and franchise taxes, estimated taxes, withholding,\nemployment, social security, workers compensation, occupation and other\ngovernmental taxes imposed or payable to the United States, or any state, local\nor foreign government or subdivision or agency thereof, and in each instance\nsuch term shall include any interest, penalties or additions to tax attributable\nto any such tax.\n\n     2.14   Intellectual Property.  For the purposes of this Agreement, the \nfollowing terms have the following definitions:\n\n            \"Intellectual Property\" shall mean any or all of the following and \nall rights in, arising out of, or associated therewith: (i) all United States,\ninternational and foreign patents and applications therefor and all reissues,\ndivisions, renewals, extensions, provisionals, continuations and\ncontinuations-in-part thereof; (ii) all inventions (whether patentable or not),\ninvention disclosures, improvements, trade secrets, proprietary information,\nknow how, technology, technical data and customer lists, and all documentation\nrelating to any of the foregoing; (iii) all copyrights, copyright registrations\nand applications therefor, and all other rights corresponding thereto throughout\nthe world; (iv) all industrial designs and any registrations and applications\ntherefor throughout the world; (v) all trade names, logos, URLs, common law\ntrademarks and service marks, trademark and service mark registrations and\napplications therefor throughout the world (collectively, the \"Trademarks\");\n(vi) all databases and data collections and all rights therein throughout the\nworld; (vii) all moral and economic rights of authors and inventors, however\ndenominated, throughout the world, and (viii) any similar or equivalent rights\nto any of the foregoing anywhere in the world.\n\n                                       15\n\n\n\n\n            \"Company Intellectual Property\" shall mean any Intellectual\nProperty, including, without limitation, all Registered Intellectual Property,\nthat is owned by, or exclusively licensed to, the Company.\n\n            \"Registered Intellectual Property\" means all United States, \ninternational and foreign: (i) patents and patent applications (including\nprovisional applications); (ii) registered trademarks, applications to register\ntrademarks, intent-to-use applications, or other registrations or applications\nrelated to trademarks; (iii) registered copyrights and applications for\ncopyright registration; and (iv) any other Intellectual Property that is the\nsubject of an application, certificate, filing, registration or other document\nissued, filed with, or recorded by any state, government or other public legal\nauthority.\n\n            \"Company Registered Intellectual Property\" means all of the \nRegistered Intellectual Property owned by, or filed in the name of, the Company.\n\n            (a)    A list and brief description of the Company Registered \nIntellectual Property, and all contracts, licenses and agreements to which the\nCompany is a party (i) with respect to Company Intellectual Property licensed or\ntransferred to any third party; or (ii) pursuant to which a third party has\nlicensed or transferred any Intellectual Property to the Company is set forth in\nSection 2.14(a) of the Company Disclosure Schedule.\n\n            (b)    No Company Intellectual Property owned or developed by the \nCompany or product or service of the Company is subject to any proceeding or\noutstanding decree, order, judgment, agreement, or stipulation of any\nGovernmental Entity restricting in any manner the use, transfer, or licensing\nthereof by the Company, or which may affect the validity, use or enforceability\nof such Company Intellectual Property.\n\n            (c)    Each item of Company Registered Intellectual Property is \nvalid and subsisting, all necessary registration, maintenance and renewal fees\ncurrently due in connection with such Registered Intellectual Property have been\nmade and all necessary documents, recordations and certificates in connection\nwith such Company Registered Intellectual Property have been filed with the\nrelevant patent, copyright, trademark or other authorities in the United States\nor foreign jurisdictions, as the case may be, for the purposes of maintaining\nsuch Registered Intellectual Property.\n\n            (d)    The Company owns and has good and exclusive title to, or has \njoint ownership or license (sufficient for the conduct of its business as\ncurrently conducted) to, each item of Company Intellectual Property free and\nclear of any Encumbrance (excluding licenses and related restrictions); and the\nCompany is the exclusive owner of all Trademarks currently used in connection\nwith the operation or conduct of the business of the Company, including the sale\nof any products or the provision of any services by the Company.\n\n\n                                       16\n\n\n\n\n            (e)    The Company owns, and has good title to, or has valid and \nsufficient licenses for all copyrightable works currently used in its business.\n\n            (f)    Except as set forth in Section 2.14(f) of the Company \nDisclosure Schedule, to the extent that any Intellectual Property currently used\nin the Company's business has been developed or created by a third party for the\nCompany, the Company (or subsidiaries) has a written agreement with such third\nparty with respect thereto and the Company (or subsidiaries) either (i) has\nobtained ownership of, and is the exclusive owner of all such third party\nIntellectual Property, or (ii) has obtained a license (sufficient for the\nconduct of its business as currently conducted) to all such third parties'\nIntellectual Property by operation of law or by valid assignment or license, to\nthe fullest extent it is legally possible to do so.\n\n            (g)    The Company has not transferred ownership of, or granted any\nexclusive license with respect to, any Intellectual Property currently used in\nthe Company's business that is or was the Company Intellectual Property, to any\nthird party.\n\n            (h)    All contracts, licenses and agreements relating to the\nCompany Intellectual Property currently used in the Company's business are in\nfull force and effect. The consummation of the transactions contemplated by this\nAgreement will neither violate nor result in the breach, modification,\ncancellation, termination, or suspension of such contracts, licenses and\nagreements. The Company is in compliance with, and has not breached any material\nterm of any such contracts, licenses and agreements and, to the knowledge of the\nCompany, all other parties to such contracts, licenses and agreements are in\ncompliance with, and have not breached any term of, such contracts, licenses and\nagreements. Following the Closing Date, the Surviving Corporation will be\npermitted to exercise all of the Company's rights under such contracts, licenses\nand agreements to the same extent the Company would have been able to had the\ntransactions contemplated by this Agreement not occurred and without the payment\nof any additional amounts or consideration other than ongoing fees, royalties or\npayments which the Company would otherwise be required to pay.\n\n            (i)    The operation of the business of the Company as such \nbusiness is currently conducted, including the Company's design, development,\nmarketing and sale of the products or services of the Company (including with\nrespect to products currently under development) and the Company's use of the\nCompany Intellectual Property, to the knowledge of the Company, has not, does\nnot and will not infringe, dilute or misappropriate the Intellectual Property of\nany third party or constitute unfair competition or trade practices under the\nlaws of any jurisdiction.\n\n            (j)    Except as provided in Section 2.14(j) of the Company \nDisclosure Schedule, the Company has not received actual notice from any third\nparty and, to the knowledge of the Company, the Company has not received any\nthreat, that the operation of the business of the Company or any act, product or\nservice of the Company, infringes, dilutes or misappropriates the Intellectual\nProperty of any third party or constitutes unfair competition or trade practices\nunder the laws of any jurisdiction.\n\n\n                                       17\n\n\n\n\n            (k)    To the knowledge of the Company, no person has or is\ninfringing, diluting or misappropriating any Company Intellectual Property or\nunfairly competing with the Company.\n\n            (l)    Except for the failure to require employees to execute a \nproprietary information\/confidentiality agreement, the Company has taken\nreasonable steps to protect the Company's rights in the Company's confidential\ninformation and trade secrets that it wishes to protect or any trade secrets or\nconfidential information of third parties provided to the Company or its\nsubsidiaries. Except under confidentiality obligations, there has not been\ndisclosure by the Company of any such trade secrets or confidential information.\n\n     2.15   Compliance; Permits; Restrictions.\n            ---------------------------------\n\n            (a)    Neither the Company nor any of its subsidiaries is in \nconflict with, or in default or in violation of (i) any law, rule, regulation,\norder, judgement or decree applicable to the Company or any of its subsidiaries\nor by which the Company or any of its subsidiaries or any of their respective\nbusiness or properties is, or the Company believes is reasonably likely to be,\nbound or affected, or (ii) any note, bond, mortgage, indenture, contract,\nagreement, lease, license, permit, franchise or other instrument or obligation\nto which the Company or any of its subsidiaries is a party or by which the\nCompany or any of its subsidiaries or its or any of their respective properties\nis bound or affected, except for conflicts, violations and defaults that\n(individually or in the aggregate) would not reasonably be expected to have a\nCompany Material Adverse Effect. No investigation or review by any Governmental\nEntity is pending or, to the Company's knowledge, has been threatened in a\nwriting delivered to the Company, against the Company or any of its\nsubsidiaries, nor, to the Company's knowledge, has any Governmental Entity\nindicated an intention to conduct an investigation of the Company or any of its\nsubsidiaries. There is no agreement, judgment, injunction, order or decree\nbinding upon the Company or any of its subsidiaries which has or could\nreasonably be expected to have (after giving effect to the Merger) the effect of\nprohibiting or impairing any current or future business practice of the Company\nor any of its subsidiaries, any acquisition of property by the Company or any of\nits subsidiaries or the conduct of business by the Company or any of its\nsubsidiaries as currently conducted or as currently proposed to be conducted.\n\n            (b)    The Company and its subsidiaries hold, to the extent legally \nrequired, all permits, licenses, variances, exemptions, orders and approvals\nfrom Government Entities that are required for the operation of the business of\nthe Company as currently conducted (collectively, the \"Company Permits\") except\nfor such permits, the failure of which to hold would not reasonably be expected\nto have a Company Material Adverse Effect. The Company and its subsidiaries are\nin compliance in all respects with the terms of the Company Permits, except\nwhere the failure to be in compliance with the terms of the Company Permits\nwould not reasonably be expected to have a Company\nMaterial Adverse Effect.\n\n\n                                       18\n\n\n\n\n\n     2.16   Agreements, Contracts and Commitments. Except as otherwise set forth\nin Section 2.16 of the Company Disclosure Schedule, as of the date hereof\nneither the Company nor any of its subsidiaries is a party to or is bound by:\n\n            (a)    any employment or consulting agreement, contract or \ncommitment with any officer or director or higher level employee or member of\nthe Company's Board of Directors, other than those that are terminable by the\nCompany or any of its subsidiaries on no more than 30 days notice without\nliability or financial obligation, except to the extent general principles of\nwrongful termination law may limit the Company's or any of its subsidiaries'\nability to terminate employees at will;\n\n            (b)    any agreement of indemnification outside the ordinary course\nof the Company's business or any guaranty;\n\n            (c)    any agreement, contract or commitment containing any covenant\nlimiting the right of the Company or any of its subsidiaries to engage in any\nline of business or to compete with any person or granting any exclusive\ndistribution rights;\n\n            (d)    any agreement, contract or commitment currently in force \nrelating to the disposition or acquisition by the Company or any of its\nsubsidiaries after the date of this Agreement of assets not in the ordinary\ncourse of business or pursuant to which the Company or any of its subsidiaries\nhas any material ownership interest in any corporation, partnership, joint\nventure or other business enterprise other than the Company's subsidiaries;\n\n            (e)    any agreement, contract or commitment currently in force to \nprovide source code to any third party for any product or technology; or\n\n            (f)    any other agreement, contract or commitment currently in \neffect that is expected to represent more than 10% of the Company's revenue for\nthe calendar year 2000 or that requires the Company to make payments of greater\nthan $500,000 per year or more than $1,500,000 in the aggregate.\n\n     Neither the Company nor any of its subsidiaries, nor to the Company's \nknowledge any other party to a Company Contract (as defined below) is in breach,\nviolation or default under, and neither the Company nor any of its subsidiaries\nhas received written notice that it has breached, violated or defaulted under,\nany of the material terms or conditions of any of the agreements, contracts or\ncommitments to which the Company or any of its subsidiaries is a party or by\nwhich it is bound that are required to be disclosed in the Company Disclosure\nSchedule pursuant to clauses (a) through (f) above or pursuant to Section 2.14\nhereof (any such agreement, contract or commitment, a \"Company Contract\") in\nsuch a manner as would permit any other party to cancel or terminate any such\nCompany Contract, or would permit any other party to seek damages or other\nremedies which would have a Company Material Adverse Effect. The Company\nContracts are in full force and effect and the Company and its subsidiaries have\n\n\n                                       19\n\n\n\nperformed all of the material obligations required to be performed by them and\nare entitled to all accrued benefits under all the Company Contracts.\n\n     2.17   Title to Properties; Absence of Liens and Encumbrances.\n            ------------------------------------------------------\n\n            (a)    The Company owns no real property interests.  Section 2.17(a)\nof the Company Disclosure Schedule lists all real property leases to which the\nCompany is a party and each amendment thereto that is in effect as of the date\nof this Agreement. All such current leases are in full force and effect, are\nvalid and effective in accordance with their respective terms, and there is not,\nunder any of such leases, any existing default or event of default (or event\nwhich with notice or the lapse of time, or both, would constitute a default)\nthat would give rise to a material claim.\n\n            (b)    The Company and each of its subsidiaries has good and valid \ntitle to, or in the case of leased properties and assets, valid leasehold\ninterests in, all of its tangible properties and assets, real, personal and\nmixed, used or held for use in its business, free and clear of any Encumbrances,\nexcept as reflected in the Company Financials. The Company's equipment and\nassets (whether owned or leased) are in good operating condition and repair,\nsubject to ordinary wear and tear. All assets, properties and rights relating to\nthe Company's business will, at the Closing, be held by, and all agreements,\nobligations and transactions relating to the Company's business will, at the\nClosing, be entered into, incurred and conducted by, the Company or its\nsubsidiaries.\n\n     2.18   Environmental Matters.\n            ---------------------\n\n            (a)    To the knowledge of the Company, all of the current \noperations of the Company and each of its subsidiaries and their respective\nassets, businesses and real property, including any operations at or from any\nreal property presently or formerly owned, used, leased, occupied, managed or\noperated by the Company or any of its subsidiaries (collectively, the \"Real\nProperty\"), comply in all material respects and have at all times complied in\nall material respects with all applicable Environmental Laws.\n\n            (b)    To the knowledge of the Company, none of the assets of the \nCompany or any of its subsidiaries, nor any of the Real Property, contains any\nHazardous Substances in, on, over, under or at it, in concentrations which would\nviolate in any material respect any applicable Environmental Laws or reasonably\nwould be likely to result in the imposition of material liability or obligations\non the Company or any of its subsidiaries under any applicable Environmental\nLaws, including any material liability or obligations for the investigation,\ncorrective action, remediation or monitoring of Hazardous Substances in, on,\nover, under or at the Real Property. Neither the Company nor any of its\nsubsidiaries has received any written notice from any Governmental Entity or\nthird party of any actual or threatened Environmental Liabilities.\n\n\n                                       20\n\n\n\n\n            (c)    To the knowledge of the Company, each of the Company and its\nsubsidiaries has all the permits, licenses, authorizations and approvals\nnecessary for the conduct of their businesses and for the operations on, in or\nat the Real Property which are required under applicable Environmental Laws (the\n\"Environmental Permits\") and they are in compliance in all material respects\nwith the terms and conditions of all such Environmental Permits. To the\nknowledge of the Company, no reason exists why the Company would not be capable\nof continued operation of its business in compliance in all material respects\nwith the Environmental Permits and the applicable Environmental Laws.\n\n            (d)    To the knowledge of the Company, neither the Company nor any\nof its subsidiaries has contractually, by operation of law, by the Environmental\nLaws, by common law or otherwise assumed or succeeded to any Environmental\nLiabilities of any predecessors or any other person or entity.\n\n     2.19   Insurance. The Company and its subsidiaries have, as of January 1,\n2000, policies of insurance and bonds of the type and in amounts customarily\ncarried by persons conducting businesses or owning assets similar to those of\nthe Company and its subsidiaries. There is no material claim pending under any\nof such policies or bonds as to which coverage had been questioned, denied or\ndisputed by the underwriters of such policies or bonds. All premiums due and\npayable under all such policies and bonds have been paid and the Company and its\nsubsidiaries are otherwise in compliance with the terms of such policies and\nbonds. The Company has no knowledge of any threatened termination of, or\nmaterial premium increase with respect to, any such policies.\n\n     2.20   Change of Control Payments. Section 2.20 of the Company Disclosure\nSchedule sets forth each plan or agreement pursuant to which any amounts may\nbecome payable (whether currently or in the future) to current or former\nofficers and directors of the Company as a result of the Merger.\n\n     2.21   Interested Party Transactions. Except as provided in Section 2.21 of\nthe Company Disclosure Schedule, neither the Company nor any of its subsidiaries\nare indebted to any director, officer, employee or agent of the Company or any\nof its subsidiaries (except for amounts due as normal salaries and bonuses and\nin reimbursement of ordinary expenses), and no such person is indebted to the\nCompany and its subsidiaries.\n\n     2.22   Books and Records. The minute books and records of the Company and \nits subsidiaries made available to 24\/7 have been maintained in accordance with\ngood business practices, contain a complete and accurate summary of all meetings\nof the directors or actions by written consent since the time of organization of\nthe Company and its subsidiaries, and reflect all transactions referred to in\nsuch minutes accurately in all material respects.\n\n     2.23 Improper Payments. The Company and its officers and agents have not \nmade any illegal or improper payments to, or provided any illegal or improper\nbenefit or \n\n\n                                       21\n\n\n\ninducement for, any governmental official, supplier, customer or other person in\nan attempt to influence any such person to take or to refrain from taking any\naction relating to the Company.\n\n     2.24   Year 2000.\n            ---------\n\n            (a)    The computer systems of the Company (including, without \nlimitation, all software, hardware, workstations and related components,\nautomated devices, products consisting of or containing one or more thereof, and\nany and all enhancements, upgrades, customizations, modifications or\nmaintenance, embedded chips and other date sensitive equipment such as security\nsystems, alarms, elevators and other systems) (\"Computer Systems\") are Year 2000\nCompliant (as defined below), except to the extent that such Computer Systems\nreceive data from third party computer systems that are not Year 2000 Compliant.\n\n            (b)    The Company's supply of services through its Computer Systems\nhas not been and shall not be interrupted, delayed, decreased or otherwise\naffected in any material respect by the failure of its Computer Systems to be\nYear 2000 Compliant.\n\n            (c)    To the knowledge of the Company, the Company's Computer \nSystems have the ability to properly interface and will continue to properly\ninterface with internal and external applications and systems of third parties\nwith whom the Company exchanges data electronically (including, without\nlimitation, customers, clients, suppliers, service providers, subcontractors,\nprocessors, converters, shippers, warehousemen, outsourcers, data processors,\nregulatory agencies and banks), whether or not their Computer Systems are Year\n2000 Compliant.\n\n     For purposes of this Agreement, \"Year 2000 Compliant\" means that the\nCompany's Computer Systems (1) are capable of recognizing, processing, managing,\nrepresenting, interpreting and manipulating correctly date-related data for\ndates earlier and later than January 1, 2000, including, but not limited to,\ncalculating, comparing, sorting, storing, tagging and sequencing, without\nresulting in or causing logical or mathematical errors or inconsistencies in any\nuser-interface functionalities or otherwise, including data input and retrieval,\ndata storage, data fields, calculations, reports, processing or any other input\nor output, (2) have the ability to provide date recognition for any data element\nwithout limitation (including, but not limited to, date-related data represented\nwithout a century designation, date-related data whose year is represented by\nonly two digits and date fields assigned special values), (3) have the ability\nto automatically function into and beyond the year 2000 without an abnormal\nending or a termination of such function resulting from the advent of the year\n2000, (4) have the ability to correctly interpret data, dates and time into and\nbeyond the year 2000, (5) have the ability not to corrupt such data into and\nbeyond the year 2000, (6) have the ability to correctly process after January 1,\n2000 data containing dates before that date, (7) have the ability to recognize\nall \"leap years,\" including February 29, 2000.\n\n     2.25   Disclosure. No representation, warranty or other written statement \nby the Company herein contains or will contain an untrue statement of a material\nfact or omits or will \n\n\n                                       22\n\n\n\n\nomit to state a material fact necessary to make the statements contained herein\nor therein not misleading.\n\n     2.26   Condition and Sufficiency of Assets. The Company owns or has the \nright to use without payment of royalty all the tangible and intangible assets\nnecessary for the conduct of its business as conducted prior to the date hereof.\nThe buildings, plants, structures, and equipment of the Company are structurally\nsound, are in good operating condition and repair, and are adequate for the uses\nto which they are being put and are sufficient for the continued conduct of the\nCompany's businesses after the Closing in substantially the same manner as\nconducted prior to the Closing, and the Company has conducted, and continues to\nconduct, its business only through the Company.\n\n     2.27   Hart-Scott Rodino. The Company has no other ultimate parent entity\nand does not meet the \"size-of-the-parties\" jurisdiction test imposed by Section\n201(a)(2) of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as\namended (the \"Act\"), and the regulations promulgated thereunder, and no filing\nunder such Act is required in connection with the transactions contemplated by\nthis Agreement.\n\n     2.28   Brokers. No broker, finder or investment banker, other than \nPrudential Securities and Erland &amp; Company, Inc., is entitled to any brokerage,\nfinder's or other fee or commission in connection with the transactions\ncontemplated by this Agreement based upon arrangements made by or on behalf of\nthe Company.\n\n     2.29   Section 203 of the Delaware Law. The Board of Directors of the \nCompany has taken all actions so that the restrictions contained in Section 203\nof the Delaware Law applicable to a \"business combination\" (as defined in such\nSection 203) will not apply to the execution, delivery or performance of this\nAgreement or to the consummation of the Merger or the other transactions\ncontemplated by this Agreement.\n\n     2.30   Expenses. The Company's expenses in connection with the negotiation \nof this Agreement and the transactions contemplated hereby, including any fees\nto Prudential Securities, shall not exceed $2.5 million, in the aggregate, and\nan estimate thereof is set forth in Section 2.30 of the Company Disclosure\nSchedule.\n\n\n                                       23\n\n\n\n\n     2.31   Acquisition of Stock for Investment . Each of the Stockholders that \nreceives 24\/7 Common Stock as part of the Merger Consideration hereunder\nacknowledges that such shares of 24\/7 Common Stock may not be sold, transferred,\noffered for sale, pledged, hypothecated, lent, or otherwise disposed of by him\nor it without registration under the Securities Act, except pursuant to\nRegulation S under the Securities Act or pursuant to another exemption from\nregistration under the Securities Act, and without compliance with applicable\nBlue Sky Laws. Each Stockholder is an \"accredited investor\" as that term is\ndefined in Rule 501 promulgated under the Securities Act. Each Stockholder has\nreceived all requested documents and other information from 24\/7, and has had an\nopportunity to ask questions of and to receive answers from the officers of 24\/7\nwith respect to the business, results of operations, financial conditions and\nprospects of 24\/7.\n\n\n                                   ARTICLE III\n            REPRESENTATIONS AND WARRANTIES OF 24\/7 AND THE SUBSIDIARY\n\n     24\/7 and the Subsidiary hereby represent and warrant to the Company subject\nto the exceptions specifically disclosed in writing in the disclosure letter\ndelivered by 24\/7 to the Company dated as of the date hereof and certified by a\nduly authorized officer of 24\/7 (the \"24\/7 Disclosure Schedule\"), as follows:\n\n     3.1    Organization and Qualification; Organizational Documents.\n            --------------------------------------------------------\n\n            (a)    Each of 24\/7 and the Subsidiary is a corporation duly \norganized, validly existing and in good standing under the laws of the State of\nDelaware and has the requisite power and authority to own, lease and operate the\nproperties it purports to own, operate or lease and to carry on its business as\nit is now being conducted, except where the failure to be so organized, existing\nand in good standing or to have such power and authority would not reasonably be\nexpected to have a material adverse effect on the business, results of\noperations or financial condition of 24\/7, taken as a whole, or on the ability\nof the parties to consummate the transactions contemplated by this Agreement\n(\"24\/7 Material Adverse Effect\"). Each of 24\/7 and the Subsidiary is duly\nqualified or licensed as a foreign corporation to do business, and is in good\nstanding, in each jurisdiction where the character of its properties owned,\nleased or operated by it or the nature of its activities makes such\nqualification or licensing necessary, except for such failures to be so duly\nqualified or licensed and in good standing that would not reasonably be expected\nto have a 24\/7 Material Adverse Effect.\n\n            (b)    24\/7 has made available to the Company a complete and correct\ncopy of 24\/7's and the Subsidiary's Certificate of Incorporation (certified by\nthe Secretary of State of the State of Delaware) and By-Laws, each as amended to\ndate. Such Certificates of Incorporation and By-Laws are in full force and\neffect. Neither 24\/7 nor the Subsidiary is in violation of any of the provisions\nof its respective Certificate of Incorporation or By-Laws.\n\n\n                                       24\n\n\n\n\n     3.2    Capitalization.\n            --------------\n\n            (a)    The authorized capital stock of 24\/7 as of December 31, 1999 \nconsisted of: (i) 70,000,000 shares of 24\/7 Common Stock, of which 22,421,516\nshares were issued and outstanding; and (ii) 10,000,000 shares of preferred\nstock, par value $.01 per share, none of which were issued and outstanding,\nsubject to the issuance of capital stock in connection with the acquisition of\nIMAKE Software &amp; Services, Inc. All of the outstanding shares of 24\/7 Common\nStock are duly authorized, validly issued and are fully paid and nonassessable\nand are not subject to preemptive or similar rights created by statute, the\nCertificate of Incorporation or By-Laws of 24\/7 or any agreement or document to\nwhich 24\/7 is a party or by which it is bound. As of December 31, 1999, there\nwere options outstanding to purchase an aggregate of 3,235,538 shares of 24\/7\nCommon Stock under 24\/7's stock option plans. The authorized capital stock of\nthe Subsidiary consists of 1,000 shares of common stock, par value $.01 per\nshare, 100 shares of which are issued and outstanding, and wholly owned by 24\/7.\nThe Subsidiary was formed for the purpose of consummating the Merger and has no\nmaterial assets or liabilities except as necessary for such purpose.\n\n            (b)    The shares of 24\/7 Common Stock to be issued in the Merger \nhave been duly authorized and, when so issued in accordance with the terms\nhereof, such shares will be validly issued, fully paid and nonassessable\n\n     3.3    Authority Relative to this Agreement.\n            ------------------------------------\n\n            (a)    Each of 24\/7 and the Subsidiary has all necessary corporate \npower and authority to execute and deliver this Agreement and to perform its\nobligations hereunder and to consummate the transactions contemplated hereby, as\nwell as all other agreements, certificates and documents executed or delivered,\nor to be executed or delivered, by 24\/7 and\/or the Subsidiary in connection\nherewith (collectively, with this Agreement, the \"24\/7 Documents\"). The\nexecution and delivery of this Agreement by 24\/7 and the Subsidiary and the\nconsummation by 24\/7 and the Subsidiary of the transactions contemplated hereby\nhave been duly and validly authorized by all necessary corporate action on the\npart of 24\/7 and the Subsidiary, and no other corporate proceedings on the part\nof 24\/7 or the Subsidiary are necessary to authorize this Agreement or to\nconsummate the transactions so contemplated hereby, except for the filing of the\nCertificate of Merger pursuant to Delaware Law. Each of the 24\/7 Documents to\nwhich 24\/7 and\/or the Subsidiary is, or will be, a party has been, or will be,\nduly and validly executed and delivered by 24\/7 and\/or the Subsidiary, and,\nassuming the due authorization, execution and delivery of the 24\/7 Documents by\nthe Company are (or when executed and delivered will be) legal, valid and\nbinding obligations of 24\/7 and\/or the Subsidiary, enforceable against 24\/7\nand\/or the Subsidiary in accordance with their respective terms, except as\nlimited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and\nother laws of general application affecting the enforcement of creditors' rights\ngenerally and (ii) general principles of equity, regardless of whether asserted\nin a proceeding in equity or at law.\n\n\n                                       25\n\n\n\n\n\n            (b)    The Board of Directors of 24\/7 (and the Board of Directors of\nthe Subsidiary, as necessary) at a meeting duly called at which all members were\npresent has (i) unanimously declared that this Agreement, the Merger and the\nother transactions contemplated hereby are fair to and in the best interests of\n24\/7 and its stockholders; and (ii) authorized, approved and adopted this\nAgreement, the Merger and the other transactions contemplated hereby. None of\nthe aforesaid actions by the Board of Directors of 24\/7 has been amended,\nrescinded or modified.\n\n     3.4    No Conflict, Required Filings and Consents.\n            ------------------------------------------\n\n            (a)    The execution and delivery of this Agreement by 24\/7 and the \nSubsidiary do not, and the performance of this Agreement by 24\/7 and the\nSubsidiary will not, (i) conflict with or violate the Certificate of\nIncorporation or By-Laws of 24\/7 or the Subsidiary; (ii) subject to compliance\nwith the requirements of Section 3.4(b) conflict with or violate any law, rule,\nregulation, order, judgment or decree applicable to 24\/7 or the Subsidiary or by\nwhich any of 24\/7's or the Subsidiary's respective properties is bound or\naffected; or (iii) result in any breach of or constitute a default (or an event\nwhich with notice or lapse of time or both would become a default) under, or\nimpair 24\/7's or the Subsidiary's rights or alter the rights or obligations of\nany third party under, or give to others any rights of termination, amendment,\nacceleration or cancellation of, or result in the creation of an Encumbrance on\nany of the properties or assets of 24\/7 or the Subsidiary pursuant to, any note,\nbond, mortgage, indenture, contract, agreement, lease, license, permit,\nfranchise or other instrument or obligation to which 24\/7 or the Subsidiary is a\nparty or by which 24\/7 or the Subsidiary or any of their respective properties\nis bound or affected, except in any such case for any such breaches, violations\nor defaults that would not have a 24\/7 Material Adverse Effect.\n\n            (b)    The execution and delivery of this Agreement by 24\/7 and the \nSubsidiary does not, and the performance of this Agreement by 24\/7 and the\nSubsidiary will not, require any consent, approval, authorization or permit of,\nor declaration, registration or filing with or notification to, any Governmental\nEntity, (i) such consents, approvals, orders, authorizations, registrations and\ndeclarations and filings as may be required under applicable federal and state\nsecurities (or related) laws; and (ii) such consents, approvals, authorizations,\nfilings and registrations which if not obtained or made, would not prevent or\ndelay consummation of the Merger or otherwise prevent 24\/7 from performing its\nobligations under this Agreement.\n\n\n\n                                       26\n\n\n\n\n     3.5    SEC Filings, 24\/7 Financial Statements.\n            --------------------------------------\n\n            (a)    24\/7 has filed all forms, reports and documents required to\nbe filed by it with the SEC since December 31, 1998 and has delivered or made\navailable to the Company, in the form filed with the SEC, such forms, reports\nand documents. All such required forms, reports and documents (including those\nthat 24\/7 may file subsequent to the date hereof), as amended, are referred to\nherein as the \"24\/7 SEC Reports.\" The 24\/7 SEC Reports (including any financial\nstatements or schedules included therein) (i) were prepared in accordance with\nthe requirements of the Securities Act or the Exchange Act, as the case may be,\nand the rules and regulations of the SEC thereunder applicable to such 24\/7 SEC\nReports, and (ii) did not at the time they were filed (or if amended or\nsuperseded by a filing prior to the date of this Agreement, then on the date of\nsuch filing) contain any untrue statement of a material fact or omit to state a\nmaterial fact required to be stated therein or necessary in order to make the\nstatements therein, in the light of the circumstances under which they were\nmade, not misleading. None of 24\/7's subsidiaries is required to file any forms,\nreports or other documents with the SEC.\n\n            (b)    Each of the consolidated financial statements (including, in \neach case, any related notes thereto) contained in the 24\/7 SEC Reports (the\n\"24\/7 Financials\"), including each 24\/7 SEC Report filed after the date hereof\nuntil Closing: (i) complied (or will comply) as to form in all material respects\nwith the rules and regulations of the SEC with respect thereto, (ii) was (or\nwill be) prepared in accordance with GAAP applied on a consistent basis\nthroughout the periods involved (except as may be indicated therein or in the\nnotes thereto or, in the case of unaudited interim financial statements, as may\nbe permitted by the SEC on Form 10-Q under the Exchange Act) and (iii) fairly\npresented (or will fairly present) in all material respects the consolidated\nfinancial position of 24\/7 and its consolidated subsidiaries as at the\nrespective dates thereof and the consolidated results of its operations and cash\nflows for the periods indicated, except that the unaudited interim financial\nstatements were or are subject to normal and recurring year-end adjustments and\nsuch statements do not contain notes thereto.\n\n            (c)    24\/7 has heretofore furnished to the Company a complete and \ncorrect copy of any amendments or modifications, which have not yet been filed\nwith the SEC but which are required to be filed, to agreements, documents or\nother instruments which previously had been filed by 24\/7 with the SEC pursuant\nto the Securities Act or the Exchange Act.\n\n     3.6    No Undisclosed Liabilities. Except as is disclosed in Section 3.6 \nof the 24\/7 Disclosure Schedule or in the 24\/7 Financials, neither 24\/7 nor any\nof its subsidiaries has any liabilities (absolute, accrued, contingent or\notherwise) of the type that are required to be disclosed in financial\nstatements, including the notes thereto, prepared in accordance with GAAP which\nare, individually or in the aggregate, material to the business, operations or\nfinancial condition of 24\/7 and its subsidiaries taken as a whole, except\nliabilities (i) adequately provided for or referred to in the Company's balance\nsheet and the related notes thereto as of September 30, 1999 included in 24\/7's\nForm 10-Q for the quarter ended September 30, 1999 (which is part of the 24\/7\nSEC Reports) (the \"24\/7 Balance Sheet\"), (ii) incurred since the date of\n\n\n                                       27\n\n\n\n\nthe 24\/7 Balance Sheet in the ordinary course of business and consistent with\npast practice and (iii) incurred in connection with the transactions\ncontemplated by this Agreement.\n\n     3.7    No Adverse Change. Since the date of the 24\/7 Balance Sheet, 24\/7 \nhas conducted its business in the ordinary course and there has not occurred any\nmaterial adverse change in the business, properties, assets, liabilities,\ncommitments, earnings or financial condition of 24\/7 and its subsidiaries, taken\nas a whole.\n\n     3.8    Litigation. There are no claims, actions, suits or proceedings\npending or, to the knowledge of 24\/7, threatened relating to or affecting 24\/7\nor any of its subsidiaries before any Governmental Entity that seek to restrain\nor enjoin the consummation of the transactions contemplated by this Agreement.\n\n\n                                  ARTICLE IV\n\n                            COVENANTS OF THE COMPANY\n\n     The Company covenants and agrees that between the date hereof and the \nEffective Time:\n\n     4.1    Actions. The Company will not take any action that would cause any\nof the representations and warranties made by it in any of the Company Documents\nnot to be true and correct in all material respects on and as of the Closing\nDate with the same force and effect as if such representations and warranties\nhad been made on and as of the Closing Date.\n\n     4.2    Access by 24\/7. 24\/7 and its representatives and advisors shall,\nupon prior written notice to the Company, have reasonable access during normal\nbusiness hours to the Company's assets, premises, books and records, key\nemployees and accountants, including the work papers of the Company's\naccountants relating to the Unaudited Financials, and the Company shall furnish\n24\/7 with such information and copies of such documents as 24\/7 may reasonably\nrequest. The Company shall promptly furnish to 24\/7 all financial statements of\nthe Company that are prepared in the ordinary course of business, including,\nwithout limitation, monthly reports of sales, revenue and cash flow and balance\nsheets, if any are prepared.\n\n     4.3    Conduct of Business. The business of the Company shall be conducted\nin all material respects in the ordinary course, consistent with the present\nconduct of its business, and the Company shall use commercially reasonable\nefforts to maintain, preserve and protect the assets and goodwill of the\nCompany. Without limiting the generality of the foregoing, the Company shall\nnot, without the prior written consent of 24\/7, take or commit to take any of\nfollowing actions:\n\n\n                                       28\n\n\n\n            (a)    amend its By-Laws or Certificate of Incorporation;\n\n            (b)    issue any additional shares of capital stock, or issue,\nsell or grant any option or right to acquire or otherwise dispose of any of its\nauthorized but unissued capital stock or other equity or debt securities;\n\n            (c)    declare or pay any dividends or make any other\ndistribution in cash, property or securities on its capital stock;\n\n            (d)    repurchase or redeem any shares of its capital stock;\n\n            (e)    incur, or perform, pay or otherwise discharge, any material \nobligation or liability (absolute or contingent), except for\nobligations and liabilities incurred in the ordinary course of business\nconsistent with past practice;\n\n            (f)    enter into any employment agreement with or increase the\ncompensation or benefits of any of its officers or employees, or grant any\nseverance pay or termination or establish, adopt or enter into any Plan;\n\n            (g)    sell, lease, transfer or otherwise dispose of, or acquire,\nany material properties or assets, tangible or intangible, other than in the\nordinary course of business;\n\n            (h)    make any material changes in its customary method of\noperations, including marketing, selling and pricing policies and maintenance of\nbusiness premises, fixtures, furniture and equipment;\n\n            (i)    modify, amend or cancel any of its existing leases or enter \ninto any material contracts, agreements, leases or understandings other than \nin the ordinary course of business or enter into any loan agreements;\n\n            (j)    make any material investments other than in certificates of \ndeposit or short-term commercial paper; or\n\n            (k)    change any of the accounting principles or practices used by \nit, except to come into compliance with, or as required by GAAP.\n\n     4.4    Notification of Certain Matters. The Company shall give prompt\nnotice to 24\/7 of (i) the occurrence, or non-occurrence, of any event the\noccurrence, or non-occurrence, of which would be likely to cause any\nrepresentation or warranty contained in any of the Company Documents that is\nqualified as to materiality to be untrue or inaccurate or any such\nrepresentation or warranty that is not so qualified to be untrue or inaccurate\nin any material respect and (ii) any failure of the Company materially to comply\nwith or satisfy any covenant, condition or agreement to be complied with or\nsatisfied by it hereunder; provided, however, that the delivery\n\n\n                                       29\n\n\n\n\nof any notice pursuant to this Section 4.4 shall not limit or otherwise affect\nthe remedies available hereunder to the party receiving such notice.\n\n     4.5    Further Action. Upon the terms and subject to the conditions hereof,\nthe Company shall use all commercially reasonable efforts to take, or cause to\nbe taken, all actions and to do, or cause to be done, all other things\nnecessary, proper or advisable to consummate and make effective as promptly as\npracticable the transactions contemplated by this Agreement and to obtain in a\ntimely manner all necessary waivers, consents and approvals and to effect all\nnecessary registrations and filings.\n\n     4.6    Public Announcements. The Company shall consult with 24\/7 before\nissuing any press release or otherwise making any public statement with respect\nto the Merger and shall not issue any such press release or make any such public\nstatement, except as may be required by law, without the prior written consent\nof 24\/7, which may not be unreasonably withheld or delayed.\n\n     4.7    Government Compliance. The Company agrees promptly to effect all\nnecessary registrations, filings, applications and submissions of information\nrequired or requested by governmental authorities.\n\n                                    ARTICLE V\n\n                      COVENANTS OF 24\/7 AND THE SUBSIDIARY.\n\n     24\/7 and the Subsidiary covenant and agree that between the date hereof\nand the Effective Time:\n\n     5.1    Actions. Neither 24\/7 nor the Subsidiary will take any action that\nwould cause any of the representations and warranties made by it in any of\nthe 24\/7 Documents not to be true and correct in all material respects on and as\nof the Closing Date with the same force and effect as if such representations\nand warranties had been made on and as of the Closing Date.\n\n     5.2    Notification of Certain Matters. 24\/7 shall give prompt notice to \nthe Company of (i) the occurrence, or non-occurrence, of any event the\noccurrence, or non-occurrence, of which would be likely to cause any\nrepresentation or warranty contained in any of the 24\/7 Documents to be untrue\nor inaccurate and (ii) any failure of 24\/7 or the Subsidiary materially to\ncomply with or satisfy any covenant, condition or agreement to be complied with\nor satisfied by it hereunder; provided, however, that the delivery of any notice\npursuant to this Section 5.2 shall not limit or otherwise affect the remedies\navailable hereunder to the party receiving such notice.\n\n     5.3    Further Action. Upon the terms and subject to the conditions hereof,\n24\/7 and the Subsidiary shall use all commercially reasonable efforts to take,\nor cause to be taken, all actions and to do, or cause to be done, all other\nthings necessary, proper or advisable to \n\n\n                                       30\n\n\n\n\n\nconsummate and make effective as promptly as practicable the transactions\ncontemplated by this Agreement and to obtain in a timely manner all necessary\nwaivers, consents and approvals and to effect all necessary registrations and\nfilings.\n\n     5.4    Public Announcements. 24\/7 and the Subsidiary shall consult with\nthe Company before issuing any press release or otherwise making any public\nstatement with respect to the Merger and shall not issue any such press release\nor make any such public statement, except as may be required by law, without the\nprior written consent of the Company, which may not be unreasonably withheld or\ndelayed.\n\n     5.5    Government Compliance. 24\/7 and the Subsidiary agree promptly to \neffect all necessary registrations, filings, applications and submissions of\ninformation required or requested by governmental authorities and to use\ncommercially reasonable efforts to obtain any necessary approvals and early\ntermination of any applicable waiting period.\n\n\n                                   ARTICLE VI\n\n        CONDITIONS PRECEDENT TO OBLIGATIONS OF 24\/7 AND THE SUBSIDIARY\n\n     The obligations of 24\/7 and the Subsidiary to consummate the transactions \ncontemplated by the 24\/7 Documents are subject to the fulfillment, at or before\nthe Effective Time, of each of the following conditions, any of which may be\nwaived by 24\/7 and the Subsidiary in writing, and the Company shall use\ncommercially reasonable efforts to cause such conditions to be fulfilled:\n\n     6.1    Representations and Warranties. Each of the representations and\nwarranties of the Company in the Company Documents shall be true and correct in\nall material respects on and as of the Effective Time as if made on and as of\nthe Effective Time, except to the extent that any such representation or\nwarranty is made as of a specified date, in which case such representation or\nwarranty shall have been true and correct in all material respects as of such\ndate.\n\n     6.2    Performance by the Company. The Company shall have performed and\ncomplied in all material respects with all agreements, covenants and conditions\nrequired by the Company Documents to be performed or complied with by the\nCompany at or before the Effective Time.\n\n     6.3    Certificate. 24\/7 shall have received a certificate executed by the\nCompany, dated the Closing Date, certifying, in such detail as 24\/7 may\nreasonably request, as to the fulfillment of the conditions set forth in\nSections 6.1 and 6.2.\n\n     6.4    Employment Agreement. James Green, David Turner and Gour Lentell\nshall have each entered into an Employment Agreement with 24\/7 in the form\nattached hereto \n\n\n                                       31\n\n\n\n\nas Exhibit B and a Non-Competition and Non-Disclosure Agreement with 24\/7 in the\nform attached hereto as Exhibit C (collectively, the \"Employment Agreements\").\n\n     6.5    Registration Rights Agreement. The Company and the Stockholders\nshall have entered into a Registration Rights Agreement with 24\/7 in the form\nattached hereto as Exhibit D (the \"Registration Rights Agreements\").\n\n     6.6    Opinion of Counsel to the Company. The Company shall have delivered\nto 24\/7 an opinion of Brobeck, Phleger &amp; Harrison LLP, counsel to the Company,\ndated the Closing Date, covering, in substance, the legal matters described in\nSections 2.1 (as relates to Company only), 2.5 (a), (b), (c) and (d), and 2.6\n(a) (i) and (ii) and (b).\n\n     6.7    Consents. The Company shall have obtained, or to the reasonable\nsatisfaction of 24\/7 obviated the need to obtain, all consents, approvals and\nwaivers from governmental and regulatory authorities and third parties necessary\nfor the execution, delivery and performance of the Company Documents and the\ntransactions contemplated thereby, without any material cost or adverse\nconsequences to the Company.\n\n     6.8    Litigation. No action or proceeding shall be pending before any\ncourt, tribunal or governmental entity, and no claim or demand shall have been\nmade against 24\/7, the Subsidiary, any Stockholder or the Company, seeking to\nrestrain or prohibit the consummation of the transactions contemplated by any of\nthe Company Documents, which in the reasonably exercised opinion of 24\/7 makes\nit inadvisable to consummate such transactions.\n\n     6.9    No Violation. There shall not have been any action taken, or any\nstatute, rule, regulation or order enacted, promulgated, issued or deemed\napplicable to the Merger by any federal or state government or governmental or\nregulatory authority or court, which would: (i) prohibit the Surviving\nCorporation's ownership or operation of all or a material portion of the\nCompany's business or assets, or compel the Surviving Corporation to dispose of\nor hold separate all or a material portion of the Company's business or assets,\nas a result of the Merger; (ii) render any party hereto unable to consummate the\nMerger; (iii) make such consummation illegal; or (iv) impose or confirm material\nlimitations on the ability of 24\/7 effectively to exercise full rights of\nownership of shares of the capital stock of the Surviving Corporation,\nincluding, without limitation, the right to vote any such shares on all matters\nproperly presented to the stockholders of the Surviving Corporation, and no such\naction shall have been taken or any such statute, rule, regulation or order\nenacted, promulgated, issued or deemed applicable to the Merger which is\nreasonably likely to produce such result.\n\n\n\n                                       32\n\n\n                                   ARTICLE VII\n\n              CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY\n\n     The obligations of the Company to consummate the transactions contemplated \nby the Company Documents are subject to the fulfillment, at or before the\nEffective Time, of each of the following conditions, any of which may be waived\nby the Company in writing, and 24\/7 and the Subsidiary shall use commercially\nreasonable efforts to cause such conditions to be fulfilled:\n\n     7.1    Representations and Warranties. Each of the representations and \nwarranties of 24\/7 and\/or the Subsidiary in the 24\/7 Documents shall be true and\ncorrect in all material respects on and as of the Effective Time as if made on\nand as of the Effective Time, except to the extent that any such representation\nor warranty is made as of a specified date, in which case such representation or\nwarranty shall have been true and correct in all material respects as of such\ndate.\n\n     7.2    Performance by 24\/7 and the Subsidiary. 24\/7 and the Subsidiary\nshall have performed and complied in all material respects with all agreements,\ncovenants and conditions required by the 24\/7 Documents to be performed or\ncomplied with by 24\/7 and\/or the Subsidiary at or before the Effective Time.\n\n     7.3    Certificate. The Company shall have received a certificate executed\nby 24\/7, dated the Closing Date, certifying, in such detail as the Company may\nreasonably request, as to the fulfillment of the conditions set forth in\nSections 7.1 and 7.2.\n\n     7.4    Employment Agreement.  24\/7 shall have entered into the Employment\nAgreements and the Non-Disclosure Agreements.\n\n     7.5    Registration Rights Agreement.  24\/7 shall have entered into the \nRegistration Rights Agreement.\n\n     7.6    Opinion of Counsel to 24\/7 and the Subsidiary. 24\/7 and the\nSubsidiary shall have delivered to the Company an opinion of Proskauer Rose LLP,\ncounsel to 24\/7 and the Subsidiary, dated the Closing Date, covering, in\nsubstance, the legal matters described in Sections 3.1(a), 3.2(b), 3.3(a),\n3.4(a)(i) and (ii) and (b).\n\n     7.7    No Violation. There shall not have been any action taken, or any\nstatute, rule, regulation or order enacted, promulgated, issued or deemed\napplicable to the Merger by any federal or state governmental or regulatory\nauthority or court, which would (i) render any party hereto unable to consummate\nthe Merger or (ii) make such consummation illegal.\n\n\n\n\n                                  ARTICLE VIII\n\n                               CLOSING DELIVERIES\n\n     8.1    Deliveries of the Company. At the Closing (or as provided below), \nthe Company and the Stockholders shall deliver, or shall cause to be delivered,\nto 24\/7 and the Subsidiary the following:\n\n            (a)    Certificates representing the Shares, together with properly \nexecuted stock powers and any required stock transfer tax stamps affixed thereto\nand all taxes on such transfer, if any, paid in full, all at the expense of the\nholders of such Shares;\n\n            (b)    The Employment Agreements;\n\n            (c)    The Registration Rights Agreement;\n\n            (d)    The opinion of Brobeck, Phleger &amp; Harrison LLP, counsel to\nthe Company;\n\n            (e)    The certificate referred to in Section 6.3, duly executed;\n\n            (f)    The Escrow Indemnity Agreement;\n\n            (g)    The minute books of the Company; and\n\n            (h)    Duly executed resignations of all directors, officers and\nfiduciaries of the Company.\n\n     8.2    24\/7 and Subsidiary Deliveries. At the Closing (or as provided\nbelow), 24\/7 and the Subsidiary shall deliver, or shall cause to be delivered,\nto the Company and the Stockholders, as the case may be, the following:\n\n            (a)    As promptly as practicable after the Closing, in accordance \nwith instructions received from the Company and the Stockholders, the\nMerger Consideration, including Certificates representing shares of 24\/7 Common\nStock in payment of the Merger Consideration, registered in the name of each of\nthe holders of Capital Shares, subject to Section 1.8;\n\n            (b)    The Employment Agreements;\n\n            (c)    The Registration Rights Agreement;\n\n            (d)    The opinion of Proskauer Rose LLP, counsel to 24\/7 and the\nSubsidiary;\n\n\n                                       34\n\n\n\n\n            (e)    The Escrow Indemnity Agreement; and\n\n            (f)    The certificate referred to in Section 7.3 hereof, duly\nexecuted.\n\n\n                                   ARTICLE IX\n\n                                 INDEMNIFICATION\n\n     9.1    Indemnification by Sabela and the Stockholders. Subject to the\nlimitations set forth in Article X below, Sabela and the Stockholders shall\njointly and severally, indemnify, defend and hold harmless 24\/7 and its\naffiliates (including the Subsidiary and the Surviving Corporation), promptly\nupon demand at any time and from time to time, against any and all losses,\nliabilities, claims, actions, damages and expenses (including without\nlimitation, reasonable attorneys' fees and disbursements) (collectively,\n\"Losses\"), arising out of or in connection with any of the following: (i) any\nmisrepresentation or breach of any warranty made by the Company or the\nStockholders in any of the Company Documents; provided, however, that with\nrespect to the representations and warranties in 2.5(d), each Stockholder shall\nbe solely and entirely responsible for such misrepresentations or breaches that\nrelate to such Stockholder's ownership of his or its Shares as set forth in the\nOwnership Table; (ii) any breach or nonfulfillment of any covenant or agreement\nmade by the Company or the Stockholders in any of the Company Documents; or\n(iii) the claims of any broker or finder engaged by the Company other than\nPrudential Securities and Erland &amp; Company, Inc.\n\n     9.2    Indemnification by 24\/7. 24\/7 shall indemnify, defend and hold\nharmless the Stockholders and Sabela, promptly upon demand at any time and from\ntime to time, against any and all Losses arising out of or in connection with\nany of the following: (i) any misrepresentation or breach of any warranty made\nby 24\/7 or the Subsidiary in this Agreement; (ii) any breach or nonfulfillment\nof any covenant or agreement made by 24\/7 or the Subsidiary in this Agreement;\nor (iii) the claims of any broker or finder engaged by 24\/7 or the Subsidiary.\n\n                                    ARTICLE X\n\n                 FURTHER PROVISIONS REGARDING INDEMNIFICATION\n\n     10.1   Survival. All representations and warranties made by the Company or \nthe Stockholders in the Company Documents or by 24\/7 or the Subsidiary in this\nAgreement shall survive the Closing until April 30, 2001, notwithstanding any\nexamination or investigation made by or for any party.\n\n\n                                       35\n\n\n\n\n     10.2   Limitations.  Notwithstanding the foregoing,\n\n            (a)    The indemnification in Sections 9.1 and 9.2, as the case\nmay be, shall be the exclusive remedy of the Stockholders, Sabela and of 24\/7\nand its affiliates with respect to claims for Losses;\n\n            (b)    The indemnification provided for in Section 9.1(i) or 9.2(i) \nabove shall not be required unless and until, at the time of any such\ndetermination, the total amount of Losses otherwise subject to indemnification\nunder such section exceeds $500,000, in which event the indemnified party or\nparties will be entitled to indemnification for the full amount of their Losses;\n\n            (c)    The total amount of indemnification provided by the\nStockholders pursuant to Section 9.1(i) shall in no event exceed an aggregate\namount equal to $15,100,000;\n\n            (d)    Neither any Stockholder of the Company, on the one hand,\nnor 24\/7 or any of its affiliates, on the other, shall be entitled to\nindemnification for Losses arising out of matters referred to in Section 9.1(i)\nor 9.2(i), as applicable, unless it shall have given written notice to the\nindemnifying party, setting forth its claim for indemnification in reasonable\ndetail, within the period from the Closing Date until April 30, 2001;\n\n            (e)    An indemnified party shall promptly give written notice to\nthe indemnifying party after the indemnified party has knowledge that any legal\nproceeding has been instituted or any claim has been asserted in respect of\nwhich indemnification may be sought under the provisions of Sections 9.1 or 9.2.\nIf the indemnifying party, within 30 days after the indemnified party has given\nsuch notice (or within such shorter period of time as an answer or other\nresponsive motion may be required), shall have acknowledged in writing his or\nits obligation to indemnify, then the indemnifying party shall have the right to\ncontrol the defense of such claim or proceeding, and the indemnifying party\nshall not settle or compromise such claim or proceeding without the written\nconsent of the indemnified party. The indemnified party may in any event \nparticipate in any such defense with his or its own counsel and at his or its \nown expense; and\n\n            (f)    The indemnified party shall be kept fully informed by the\nindemnifying party of such action, suit or proceeding at all stages thereof,\nwhether or not he or it is represented by counsel. The indemnifying party shall,\nat the indemnifying party's expense, make available to the indemnified party and\nits attorneys and accountants all books and records of the indemnifying party\nrelating to such action, suit or proceeding, and the parties hereto agree to\nrender to each other such assistance as they may reasonably require of each\nother in order to ensure the proper and adequate defense of any such action,\nsuit or proceeding.\n\n     10.3   Exclusive Remedy. In accordance with the provisions of the Escrow \nIndemnity Agreement, 24\/7 shall be entitled, from time to time, to receive from\nthe Escrow Agent the number of shares of 24\/7 Common Stock having a value equal\nto the Losses of 24\/7 as \n\n\n\n                                       36\n\n\n\n\n\nto which 24\/7 is entitled to be indemnified pursuant to 9.1 above, subject to\nthe provisions of Section 10.2(c). For purposes of this Section 10.3 and the\nEscrow Agreement, the value of 24\/7 Common Stock to be delivered to cover Losses\nshall be the average of the closing prices of the 24\/7 Common Stock on the five\ntrading days preceding the delivery of the shares to 24\/7 in accordance with the\nprovisions of the Escrow Agreement. The right to receive such shares in\naccordance with the provisions of this Article X shall be 24\/7's sole remedy for\nLosses that it is entitled to recover under Section 9.1.\n\n     10.4   Delivery of Notice. 24\/7 shall deliver such written notices to such \nparties and at such times as required by the provisions of the Escrow Agreement,\nand the releases of shares provided for in Sections 9.1 or 9.3 shall be governed\nby the provisions of the Escrow Agreement. 24\/7 and the Company agree to\npromptly deliver a written notice to the Stockholders upon any determination\nthat a claim for Losses under Section 9.1 or 9.2 is reasonably likely to exist.\n\n     10.5   Indemnification of Directors and Officers of the Company. 24\/7\n(A) will not take or knowingly permit to be taken any action to alter or impair\nany exculpatory or indemnification provisions now existing in the Charter or\nBylaws of the Company for the benefit of any individual who served as officer of\nthe Company at any time prior to the Effective Time, and (B) shall cause the\nSurviving Corporation to honor and fulfill such provisions until the date which\nis two years from the Effective Time; provided, however, in the event any claim\nis commenced within such two-year period, such indemnification provisions shall\ncontinue in effect until the final disposition thereof.\n\n\n                                   ARTICLE XI\n\n                                  MISCELLANEOUS\n\n     11.1   Notices. All notices or other communications in connection with this\nAgreement shall be in writing and shall be considered given when personally\ndelivered or three days after when mailed by registered or certified mail,\npostage prepaid, return receipt requested, or by overnight courier as follows:\n\n     If to the Company or the Stockholders:\n\n                          Sabela Media, Inc.\n                          73 Spring Street, Suite 205\n                          New York, NY 10012\n                          Attn: James Green\n\n\n\n                                       37\n\n\n\n     with a copy to:\n\n                          Brobeck Phleger &amp; Harrison LLP\n                          550 South Hope Street\n                          Los Angeles, CA 90071-2604\n                          Attn: Kenneth R. Bender, Esq.\n\n     If to 24\/7 or the Subsidiary:\n\n                          24\/7 Media, Inc.\n                          1250 Broadway, 28th Floor\n                          New York, NY 10001\n                          Attn: General Counsel\n\n     with a copy to:\n\n                          Proskauer Rose LLP\n                          1585 Broadway\n                          New York, NY  10036\n                          Attn:  Ronald R. Papa, Esq.\n\nAny party may send any notice, request, demand, claim or other communication\nhereunder to the intended recipient at the address set forth above using any\nother means (including personal delivery, expedited courier, messenger service,\ntelecopy, telex, ordinary mail or electronic mail), but no such notice, request,\ndemand, claim or other communication shall be deemed to have been duly given\nunless and until it actually is received by the intended recipient. Any party\nmay change the address to which notices, requests, demands, claims and other\ncommunications hereunder are to be delivered by giving the other party notice in\nthe manner set forth in this Section 11.1.\n\n     11.2   Termination. This Agreement shall terminate if the Merger shall\nhave not been declared effective and consummated by March 31, 2000.\n\n     11.3   Entire Agreement. This Agreement (which includes the schedules and \nexhibits hereto) sets forth the parties' final and entire agreement with respect\nto its subject matter and supersedes any and all prior and contemporaneous\nunderstandings, representations, warranties and agreements (whether oral or\nwritten) with respect to the subject matter herein. This Agreement can be\namended, supplemented or changed, and any provision hereof can be waived, only\nby a written instrument making specific reference to this Agreement signed by\nthe party against whom enforcement of any such amendment, supplement, change or\nwaiver is sought.\n\n     11.4   Successors. This Agreement shall be binding upon and shall inure to\nthe benefit of the parties hereto and their respective heirs, executors,\nadministrators, personal \n\n\n                                       38\n\n\n\n\nrepresentatives, successors and assigns; provided, however, that neither this\nAgreement nor any right or obligation hereunder may be assigned or transferred,\nexcept that 24\/7 or the Subsidiary may assign this Agreement and its rights\nhereunder to any direct or indirect wholly-owned subsidiary of 24\/7.\n\n     11.5   Paragraph Headings. The paragraph and section headings in this\nAgreement are for reference purposes only and shall not affect in any way the\nmeaning or interpretation of this Agreement.\n\n     11.6   Other Discussions. Unless this Agreement shall have been terminated,\nthe Company (and any representatives of the Company) shall not, directly or \nindirectly, initiate, solicit, encourage, consider, entertain or otherwise\nconsider any other offers for or inquiries about, or hold discussions with any\nperson regarding, the acquisition of any assets or capital stock of the Company.\nThe Company (and any representatives of the Company) will not, directly or\nindirectly, engage in any negotiations concerning, provide any confidential\ninformation or data to, or have any discussions with, any person relating to the\nacquisition of any assets or capital stock of the Company, whether initiated\nbefore or after this Agreement. The Company (and any representatives of the\nCompany) will immediately cease and cause to be terminated any existing\nactivities, discussions or negotiations with any parties conducted heretofore\nwith respect to the acquisition of any assets or capital stock of the Company. \nThe Company will notify 24\/7 immediately of any inquiries or proposals received\nby the Company and the name of such person and the material terms and conditions\nof any proposals or offers.\n\n     11.7   Fees and Expenses. Each party hereto will pay its own fees and\nexpenses, including, without limitation, legal, accounting and other\nprofessional fees and expenses, incurred in connection with the execution,\ndelivery and performance of this Agreement, whether or not the Merger is\nconsummated.\n\n     11.8   Severability. If any provision of this Agreement shall be held by \nany court of competent jurisdiction to be illegal, invalid or unenforceable,\nsuch provision shall be construed and enforced as if it had been more narrowly\ndrawn so as not to be illegal, invalid or unenforceable, and such illegality,\ninvalidity or unenforceability shall have no effect upon and shall not impair\nthe enforceability of any other provision of this Agreement.\n\n     11.9   Governing Law and Consent to Jurisdiction. This Agreement shall be \ngoverned by and construed and interpreted in accordance with the internal laws\nof the State of New York. The state courts of the State of New York in New York\nCounty and, if the jurisdictional prerequisites exist at the time, the United\nStates District Court for the Southern District of New York, shall have sole and\nexclusive jurisdiction to hear and determine any dispute or controversy arising\nunder or concerning this Agreement. In any action or proceeding concerning such\ndispute or controversy, the parties consent to such jurisdiction and waive\npersonal service of any summons, complaint or other process; a summons or\ncomplaint in any such action or proceeding may be served by mail in accordance\nwith Section 11.1.\n\n\n                                       39\n\n\n\n     11.10  Counterparts. This Agreement may be executed by facsimile and in one\nor more counterparts, each of which shall be deemed an original, but all of \nwhich taken together shall constitute one and the same instrument.\n\n     11.11  Definition of Knowledge. As used herein, the words \"knowledge\", \n\"knowledge\" or \"known\" shall, (i) with respect to the Company or Company\nmanagement, mean the actual knowledge of the executive officers of the Company,\n(ii) with respect to 24\/7 or 24\/7 management, mean the actual knowledge of the\nexecutive officers of 24\/7, and (iii) with respect to the Subsidiary or the\nSubsidiary management, mean the actual knowledge of the corporate executive\nofficers of 24\/7 or the Subsidiary.\n\n     11.12 No Third-Party Beneficiaries. This Agreement shall not confer any \nrights or remedies upon any person or entity other than the parties and their\nrespective successors and permitted assigns; provided, however, that the\nprovisions in Sections 9.1 and 9.2 above concerning indemnification are intended\nfor the benefit of the individuals specified therein and their respective legal\nrepresentatives.\n\n\n                            [Signature pages follow]\n\n\n                                       40\n\n\n\n\n                     [SIGNATURE PAGE TO MERGER AGREEMENT]\n\n     IN WITNESS WHEREOF, each of the parties has caused this Merger Agreement to\nbe executed by a duly authorized officer as of the day and year first written\nabove.\n\n\nSABELA MEDIA, INC.                          24\/7 MEDIA, INC.\n\n\nBy: \/s\/ James Green                         By: \/s\/ David J. Moore\n    ---------------                             --------------------\n      Name:  James Green                          Name:  David J. Moore\n      Title: President and Chief                  Title: President and Chief\n               Executive Officer                           Executive Officer\n\n\nSTOCKHOLDERS:                               KILLER-APP HOLDING CORP.\n\n\nBy: \/s\/ James Green                         By: \/s\/ David J. More\n    ---------------                             -------------------\n      Name:  James Green                          Name:  David J. Moore\n                                                  Title: President and Chief\n\n\nFRESHWATER CONSULTING LTD.\n\n\nBy: \/s\/ David Turner\n    ----------------\n      Name: David Turner\n\n\nGALMOS HOLDINGS LTD.\n\n\nBy: \/s\/ Gour Lentell\n    ----------------\n      Name: Gour Lentell\n\n\n\n                                       41\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9622,9626],"class_list":["post-42996","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_industries-services__advertising","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42996","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42996"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42996"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42996"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42996"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}