{"id":43335,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/buy-com-buygolf-com-agreement-and-plan-of-merger.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"buy-com-buygolf-com-agreement-and-plan-of-merger","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/buy-com-buygolf-com-agreement-and-plan-of-merger.html","title":{"rendered":"Buy.com &#8211; BuyGolf.com: Agreement and Plan of Merger"},"content":{"rendered":"<pre>\n                AGREEMENT AND PLAN OF MERGER AND REORGANIZATION\n\n                                 by and among\n\n                                 BUY.COM INC.,\n\n                       BGLF Acquisition Corporation and\n\n                               BUYGOLF.COM INC.\n\n\n \n \n                               TABLE OF CONTENTS\n                               -----------------\n                                                                     Page\n                                                                     ----    \n                                                                  \n<c> \nARTICLE I THE MERGER...............................................     2\n     1.1    The Merger.............................................     2\n     1.2    Closing; Effective Time................................     2\n     1.3    Effect of the Merger...................................     2\n     1.4    Certificate of Incorporation; Bylaws...................     2\n     1.5    Directors and Officers.................................     2\n     1.6    Effect on Capital Stock................................     2\n     1.7    No Further Ownership Rights in BuyGolf Common Stock....     3\n     1.8    Options to Purchase BuyGolf Common Stock...............     3\n     1.9    Taking of Necessary Action; Further Action.............     4\n     1.10   Surrender of Certificates..............................     4\n     1.11   Consent to Merger; Waiver of Dissenters'Rights.........     5\n     1.12   Lost, Stolen or Destroyed Certificates.................     5\n     1.13   Minute Books, Stock Ledger and Other Corporate Records.     5\n     1.14   Legends on BC Stock....................................     5\n\nARTICLE II REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS......     6\n     2.1    Organization, Good Standing and Qualification..........     6\n     2.2    Capitalization; Voting Rights..........................     6\n     2.3    Authority; No Violation................................     7\n     2.4    Consents and Approvals.................................     8\n     2.5    Financial Statements...................................     8\n     2.6    Absence of Undisclosed Liabilities.....................     9\n     2.7    Agreements; Action.....................................     9\n     2.8    Obligations to Related Parties.........................     9\n     2.9    Title to Properties and Assets; Liens, Etc.............    10\n     2.10   Patents and Trademarks.................................    10\n     2.11   Compliance with Other Instruments......................    10\n     2.12   Litigation.............................................    11\n     2.13   Tax Returns and Payments...............................    11\n     2.14   Employees..............................................    11\n     2.15   Nondisclosure and Developments Agreements..............    12\n     2.16   Registration Rights....................................    12\n     2.17   Compliance with Laws; Permits..........................    12\n     2.18   Absence of Breaches or Defaults........................    12\n     2.19   Brokers................................................    12\n     2.20   No Misstatements.......................................    13\n     2.21   Environmental and Safety Laws..........................    13\n     2.22   Year 2000 Compliance...................................    13\n     2.23   Securities Law Exemption...............................    13\n\nARTICLE III REPRESENTATIONS AND WARRANTIES OF BC AND MERGER\n            SUB....................................................    14\n\n \n\n\n \n\n<table> \n                                                                    \n<c> \n     3.1    Organization, Good Standing and Qualification..........    14\n     3.2    Capitalization; Voting Rights..........................    15\n     3.3    Authority; No Violation................................    15\n     3.4    Consents and Approvals.................................    16\n     3.5    Financial Statements...................................    16\n     3.6    Absence of Undisclosed Liabilities.....................    16\n     3.7    Agreements; Action.....................................    16\n     3.8    Obligations to Related Parties.........................    17\n     3.9    Title to Properties and Assets; Liens, Etc.............    17\n     3.10   Patents and Trademarks.................................    18\n     3.11   Compliance with Other Instruments......................    18\n     3.12   Litigation.............................................    18\n     3.13   Tax Returns and Payments...............................    19\n     3.14   Employees..............................................    19\n     3.15   Nondisclosure and Developments Agreements..............    19\n     3.16   Registration Rights....................................    19\n     3.17   Compliance with Laws; Permits..........................    20\n     3.18   Absence of Breaches or Defaults........................    20\n     3.19   Brokers................................................    20\n     3.20   No Misstatements.......................................    20\n     3.21   Environmental and Safety Laws..........................    20\n     3.22   Year 2000 Compliance...................................    21\n     3.23   Tax-Free Organization..................................    21\n\nARTICLE IV ADDITIONAL AGREEMENTS...................................    21\n     4.1    Information Statement; Restricted Securities...........    21\n     4.2    Stockholder Approval...................................    22\n     4.3    Access to Information..................................    22\n     4.4    Expenses...............................................    23\n     4.5    Public Disclosure......................................    23\n     4.6    Approvals..............................................    23\n     4.7    Notification of Certain Matters........................    23\n     4.8    Additional Documents and Further Assurances............    23\n     4.9    Maintenance of Business................................    24\n     4.10   Conduct of Business....................................    24\n     4.11   Confidentiality........................................    25\n     4.12   \"Market Stand-Off\"Agreement............................    26\n     4.13   BuyGolf's 1998 Stock Option Plan.......................    26\n     4.14   Necessary Filings......................................    27\n\nARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF BC AND\n           MERGER SUB..............................................    27\n     5.1    Certificates for BuyGolf Common Stock..................    27\n     5.2    Representations and Warranties True....................    27\n     5.3    Covenants Performed....................................    27\n     5.4    Certificate............................................    27\n     5.5    No Violations; No Actions..............................    27\n\n<\/c><\/table> \n\n                                      ii\n\n\n \n\n<table> \n                                                                    \n<c> \n     5.6    Proceedings and Documents..............................    27\n     5.7    Delivery of Documents..................................    28\n     5.8    Required Consents......................................    28\n     5.9    Private Placement......................................    28\n     5.10   Tax-Free Reorganization................................    28\n     5.11   Limitation on Dissent..................................    28\n\nARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYGOLF AND THE\n            STOCKHOLDERS...........................................    28\n     6.1    Representations and Warranties True....................    28\n     6.2    Covenants Performed....................................    28\n     6.3    Certificate............................................    28\n     6.4    No Violations; No Actions..............................    28\n     6.5    Proceedings and Documents..............................    29\n     6.6    Delivery of Documents..................................    29\n     6.7    Required Consents......................................    29\n\nARTICLE VII CLOSING................................................    29\n     7.1    Time and Place.........................................    29\n     7.2    Deliveries of the Stockholders.........................    29\n     7.3    Deliveries of BC.......................................    31\n     7.4    Certificate of Merger..................................    32\n\nARTICLE VIII INDEMNIFICATION.......................................    32\n     8.1    Indemnification by the Stockholders....................    32\n     8.2    Indemnification by BC, Merger Sub and Surviving\n            Corporation............................................    32\n     8.3    Indemnification Procedure for Claims...................    33\n     8.4    Defense by Indemnifying Party..........................    33\n     8.5    Arbitration............................................    34\n     8.6    Limits on Indemnification..............................    34\n\nARTICLE IX GENERAL PROVISIONS......................................    34\n     9.1    Survival of Representations, Warranties and Agreements.    34\n     9.2    Notices................................................    35\n     9.3    Governing Law..........................................    35\n     9.4    Severability...........................................    36\n     9.5    Assignment; Binding Effect; Benefit....................    36\n     9.6    Headings...............................................    36\n     9.7    Entire Agreement.......................................    36\n     9.8    Counterparts...........................................    37\n     9.9    Waivers................................................    37\n     9.10   Third Parties..........................................    37\n     9.11   Publicity..............................................    37\n     9.12   Schedules..............................................    37\n\n<\/c><\/table> \n                                      iii\n\n\n \n                AGREEMENT AND PLAN OF MERGER AND REORGANIZATION\n                -----------------------------------------------\n\n          THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the \"Agreement\")\n                                                                     ---------  \nis entered into as of October 25, 1999, by and among BUY.COM INC., a Delaware\ncorporation (\"BC\"), BGLF Acquisition Corporation a Delaware corporation and\n              --                                                           \nwholly owned subsidiary of BC (\"Merger Sub\"), BuyGolf.com Inc., a Delaware\n                                ----------                                \ncorporation (\"BuyGolf\"), and each of BuyGolf's current stockholders listed on\n              -------                                                        \nSchedule A hereto (individually, a \"Stockholder,\" collectively, the\n----------                          -----------                    \n\"Stockholders\").\n ------------   \n\n                                   RECITALS\n\n          A.   The Boards of Directors of BC and BuyGolf believe it is in the\nbest interest of their respective companies and the stockholders of their\nrespective companies that BuyGolf and Merger Sub combine into a single company\nthrough the statutory merger of Merger Sub with and into BuyGolf (the \"Merger\")\n                                                                       ------  \nand, in furtherance thereof, have approved the Merger.\n\n          B.   BuyGolf is a duly incorporated Delaware corporation; its\nauthorized capital stock consists of: (i) 10,000,000 shares of common stock,\n$0.0001 par value, 8,367,166 of which are issued and outstanding; and (ii)\n5,000,000 shares of preferred stock, $0.0001 par value, none of which are issued\nand outstanding (collectively, the outstanding shares of Common Stock shall be\nreferred to as the \"BuyGolf Common Stock\").\n                    --------------------   \n\n          C.   Pursuant to the Merger, among other things, all BuyGolf Common\nStock owned by the Stockholders, as set forth on Schedule A hereto, shall be\n                                                 ----------                 \nconverted into the right to receive shares of BC Common Stock, $.0001 par value\n(\"BC Stock\"), at the rate set forth herein.\n  --------                                 \n\n          D.   There are currently outstanding options to purchase 449,000\nshares of Common Stock of BuyGolf (the \"Outstanding Options\"), and all of the\nOutstanding Options are owned by the optionholders as set forth on Schedule B\n                                                                   ----------\nattached hereto.\n\n          E.   BC shall assume the Outstanding Options to purchase shares of\nBuyGolf Common Stock.\n\n          F.   BuyGolf, BC and Merger Sub desire to make certain representations\nand warranties and other agreements in connection with the Merger.\n\n          G.   BC, Merger Sub and BuyGolf intend that the Merger shall\nconstitute a reorganization within the meaning of Section 368(a) of the Internal\nRevenue Code, and in furtherance thereof intend that this Agreement shall be a\n\"Plan of Reorganization\" within the meaning of Sections 354(a) and 361(a) of the\nInternal Revenue Code.\n\n          NOW, THEREFORE, in consideration of the covenants and representations\nset forth herein, and for other good and valuable consideration, the parties\nagree as follows:\n\n                                       1\n\n\n \n                                   ARTICLE I\n                                  THE MERGER\n                                  ----------\n\n          1.1  The Merger. At the Effective Time (as defined in Section 1.2) \n               ---------- \nand subject to and upon the terms and conditions of this Agreement, Merger Sub\nshall be merged with and into BuyGolf, the separate corporate existence of\nMerger Sub shall cease and BuyGolf shall continue as the surviving corporation.\nBuyGolf as the surviving corporation after the Merger is hereinafter sometimes\nreferred to as the \"Surviving Corporation.\"\n                    ---------------------  \n\n          1.2  Closing; Effective Time. The closing of the transactions \n               ----------------------- \ncontemplated hereby (the \"Closing\") shall take place as soon as practicable \n                          -------  \nafter the satisfaction or waiver of each of the conditions set forth in Articles\nV and VI hereof or at such other time as the parties hereto agree (the \n\"Closing Date\"). The Closing shall take place at the offices of Brobeck, \n ------------                                    \nPhleger &amp; Harrison LLP, 38 Technology Drive, Irvine, California 92618, or at\nsuch other location as the parties hereto agree. In connection with the Closing,\nthe parties hereto shall cause the Merger to be consummated by properly\nexecuting and filing the Certificate of Merger in the form attached hereto as\nExhibit A (the \"Certificate of Merger\") with the Delaware Secretary of State in\n---------       ---------------------           \naccordance with the applicable provisions of the Delaware General Corporation\nLaw (the \"Delaware Law\"). The Merger shall become effective upon the filing of\n          ------------                            \nthe Certificate of Merger with the Delaware Secretary of State (the time of such\nfiling being the \"Effective Time\").\n                  --------------   \n\n          1.3  Effect of the Merger. At the Effective Time, the effect of the\n               -------------------- \nMerger shall be as provided in this Agreement, the Certificate of Merger and the\napplicable provisions of Delaware Law. Without limiting the generality of the\nforegoing, and subject thereto, at the Effective Time, all the property, rights,\nprivileges, powers and franchises of BuyGolf and Merger Sub shall vest in the\nSurviving Corporation, and all debts, liabilities and duties of BuyGolf and\nMerger Sub shall become the debts, liabilities and duties of the Surviving\nCorporation.\n\n          1.4  Certificate of Incorporation; Bylaws.\n               ------------------------------------ \n\n               (a)  At the Effective Time, the Certificate of Incorporation of\nMerger Sub, as in effect immediately prior to the Effective Time, shall be the\nCertificate of Incorporation of the Surviving Corporation until thereafter\namended as provided by Delaware Law and such Certificate of Incorporation.\n\n               (b)  The Bylaws of Merger Sub, as in effect immediately prior to\nthe Effective Time, shall be the Bylaws of the Surviving Corporation until\nthereafter amended.\n\n          1.5  Directors and Officers. At the Effective Time, the directors and\n               ---------------------- \nofficers of the Merger Sub shall become the directors and officers of the\nSurviving Corporation, until their respective successors are duly elected or\nappointed and qualified.\n\n          1.6  Effect on Capital Stock. By virtue of the Merger and without any\n               ----------------------- \naction on the part of Merger Sub, BuyGolf or the holders of any of the following\nsecurities:\n\n               (a)  Conversion of BuyGolf Common Stock. At the Effective Time, \n                    ---------------------------------- \neach share of BuyGolf Common Stock issued and outstanding immediately prior to\nthe Effective Time (other than the Outstanding Options) will be canceled and\nextinguished and will be\n\n                                       2\n\n\n \nconverted automatically into the right to receive 0.520 validly issued, fully\npaid and non-assessable shares of BC Stock (the \"Exchange Ratio\").\n                                                 --------------   \n\n               (b)  Assumption of Outstanding Options. At the Effective Time,\n                    --------------------------------- \nBuyGolf's 1998 Stock Option Plan (the \"BuyGolf Stock Option Plan\") and all\nOutstanding Options to purchase BuyGolf Common Stock then outstanding under the\nBuyGolf Stock Option Plan shall be assumed by BC in accordance with Sections 1.8\nand 4.13 of this Agreement. Pursuant to this assumption of the Outstanding\nOptions, each optionholder of the Company shall after the Closing hold an option\nto purchase the number of shares of the BC's Common Stock set forth opposite\nsuch optionholder's name on Schedule B. Each optionholder shall enter into an\n                            ----------       \nOption Assumption Agreement which shall govern the assumption of options by BC.\n\n               (c)  Cancellation of BC-Owned and BuyGolf-Owned Stock. Each \n                    ------------------------------------------------ \nshare of BuyGolf Common Stock owned by BC or BuyGolf or any subsidiary of BC or\nBuyGolf immediately prior to the Effective Time shall be automatically canceled\nand extinguished without any conversion thereof and without any further action\non the part of BC, Merger Sub or BuyGolf.\n\n               (d)  Capital Stock of Merger Sub. At the Effective Time, each\n                    --------------------------- \nshare of Common Stock, $.0001 par value, of Merger Sub \n(\"Merger Sub Common Stock\") issued and outstanding immediately prior to the \n  -----------------------                                     \nEffective Time shall be converted into and exchanged for one validly issued,\nfully paid and nonassessable share of Common Stock of the Surviving Corporation.\nEach stock certificate of Merger Sub evidencing ownership of any such shares\nshall evidence ownership of such shares of capital stock of the Surviving\nCorporation.\n\n               (e)  Adjustments to Exchange Ratio. The Exchange Ratio shall be \n                    ----------------------------- \nadjusted to reflect fully the effect of any stock split, reverse split, stock\ndividend (including any dividend or distribution of securities convertible into\nBC Stock or BuyGolf Common Stock), reorganization, recapitalization or other\nlike change with respect to BC Stock or BuyGolf Common Stock occurring after the\ndate hereof and prior to the Effective Time.\n\n               (f)  Fractional Shares. No fraction of a share of BC Stock will \n                    ----------------- \nbe issued in the Merger and the number of shares of BC Stock issuable to a\nStockholder hereunder shall be rounded upward to the nearest whole share of BC\nStock.\n\n          1.7  No Further Ownership Rights in BuyGolf Common Stock. All shares \n               --------------------------------------------------- \nof BC Stock issued upon the surrender for exchange of shares of BuyGolf Common\nStock in accordance with the terms hereof shall be deemed to have been issued in\nfull satisfaction of all rights pertaining to such shares of BuyGolf Common\nStock, and there shall be no further registration of transfers on the records of\nthe Surviving Corporation of shares of BuyGolf Common Stock which were\noutstanding immediately prior to the Effective Time. If, after the Effective\nTime, Certificates (as defined below) are presented to the Surviving Corporation\nfor any reason, they shall be canceled and exchanged as provided in this Article\nI.\n\n          1.8  Options to Purchase BuyGolf Common Stock. At the Effective Time, \n               ---------------------------------------- \neach option granted by BuyGolf to purchase shares of BuyGolf Common Stock (each,\na \"BuyGolf Stock Option\") which is outstanding and unexercised immediately prior\n   --------------------           \nto the Effective Time shall be assumed by BC and converted into an option to\npurchase shares of BC\n\n                                       3\n\n\n \nStock in such number and at such exercise price as provided below and otherwise\nhaving the same terms and conditions as in effect immediately prior to the\nEffective Time (except to the extent that such terms, conditions and\nrestrictions may be altered in accordance with their terms as a result of the\nMerger):\n\n               (a)  the number of shares of BC Stock to be subject to the new\noption shall be equal to the product of (i) the number of shares of BuyGolf\nCommon Stock subject to the original option and (ii) the Exchange Ratio;\n\n               (b)  the exercise price per share of BC Stock under the new\noption shall be equal to the quotient of (i) the exercise price per share of\nBuyGolf Common Stock under the original option divided by (ii) the Exchange\nRatio; and\n\n               (c)  upon each exercise of options by a holder thereof, the\naggregate number of shares of BC Stock deliverable upon such exercise shall be\nrounded down, if necessary, to the nearest whole share and the aggregate\nexercise price shall be rounded up, if necessary, to the nearest cent.\n\nThe adjustments provided herein with respect to any options which are \"incentive\n                                                                       ---------\nstock options\" (as defined in Section 422 of the Code) shall be effected in a\n-------------                                                                \nmanner consistent with the requirements of Section 424(a) of the Code.\n\n          1.9  Taking of Necessary Action; Further Action. If, at any time after\n               ------------------------------------------ \nthe Effective Time, any further action is necessary or desirable to carry out\nthe purposes of this Agreement and to vest the Surviving Corporation with full\nright, title and possession to all assets, property, rights, privileges, powers\nand franchises of BuyGolf and Merger Sub, the officers and directors of BuyGolf\nand Merger Sub are fully authorized in the name of their respective corporations\nor otherwise to take, and will take, all such lawful and necessary action, so\nlong as such action is not inconsistent with this Agreement.\n\n          1.10 Surrender of Certificates.\n               ------------------------- \n     \n               (a)  Exchange Procedures. Promptly after the Effective Time, each\n                    ------------------- \nholder of record of a certificate or certificates (\"Certificates\") which\n                                                    ------------\nimmediately prior to the Effective Time represented outstanding shares of\nBuyGolf Common Stock, whose shares were converted into the right to receive\nshares of BC Stock, shall surrender such Certificates (duly endorsed in favor of\nBC or accompanied by stock powers duly executed in favor of and in a form\nreasonably acceptable to BC and its counsel, free from any charge, lien,\nencumbrance or adverse claim of any kind whatsoever) in exchange for\ncertificates representing shares of BC Stock (and cash in lieu of fractional\nshares). Upon surrender of a Certificate for cancellation to BC, the holder of\nsuch Certificate shall be entitled to receive in exchange therefor a certificate\nrepresenting the number of whole shares of BC Stock which such holder has the\nright to receive pursuant to Section 1.6 of this Agreement, and the Certificate\nso surrendered shall forthwith be canceled. Until so surrendered, each\noutstanding Certificate that, prior to the Effective Time, represented shares of\nBuyGolf Common Stock will be deemed from and after the Effective Time, for all\ncorporate purposes, other than the payment of dividends, to evidence the\nownership of the number of full shares of BC Stock into which such shares of\nBuyGolf Common Stock shall have been so converted in accordance with Article I\nhereof.\n\n                                       4\n\n\n \n               (b)  Distributions With Respect to Unexchanged Shares. No \n                    ------------------------------------------------ \ndividends or other distributions with respect to BC Stock with a record date\nafter the Effective Time will be paid to the holder of any unsurrendered\nCertificate with respect to the shares of BC Stock represented thereby until the\nholder of record of such Certificate shall surrender such Certificate. Subject\nto applicable law, following surrender of any such Certificate, there shall be\npaid to the record holder of the certificates representing whole shares of BC\nStock issued in exchange therefor, without interest, at the time of such\nsurrender, the amount of any such dividends or other distributions with a record\ndate after the Effective Time theretofore payable (but for the provisions of\nthis Section 1.10(b)) with respect to such shares of BC Stock.\n\n               (c)  Transfers of Ownership. If any certificate for shares of BC \n                    ---------------------- \nStock is to be issued in a name other than that in which the Certificate\nsurrendered in exchange therefor is registered, it will be a condition of the\nissuance thereof that the Certificate so surrendered will be properly endorsed\nand otherwise in proper form for transfer and that the person requesting such\nexchange will have paid to BC or any agent designated by it any transfer or\nother taxes required by reason of the issuance of a certificate for shares of BC\nStock in any name other than that of the registered holder of the Certificate\nsurrendered, or established to the satisfaction of BC or any agent designated by\nit that such tax has been paid or is not payable.\n\n               (d)  No Liability. Notwithstanding anything to the contrary in \n                    ------------ \nthis Section 1.10, neither the Surviving Corporation nor any party hereto shall\nbe liable to any person for any amount properly paid to a public official\npursuant to any applicable abandoned property, escheat or similar law.\n\n          1.11 Consent to Merger; Waiver of Dissenters' Rights. By their \n               ----------------------------------------------- \nexecution of this Agreement, each Stockholder (a) consents to the Merger and to\nthe taking of stockholder action to approve the Merger without a meeting; (b)\nacknowledges that he or it is aware of his or its right to dissent to the Merger\nand demand payment for shares of BuyGolf Common Stock in accordance with\nDelaware Law; and (c) waives such rights to dissent and demand payment with\nrespect to the Merger.\n\n          1.12 Lost, Stolen or Destroyed Certificates. In the event any \n               -------------------------------------- \nCertificates shall have been lost, stolen or destroyed, BC shall issue in\nexchange for such lost, stolen or destroyed Certificates, upon the making of an\naffidavit of that fact by the holder thereof, such shares of BC Stock as may be\nrequired pursuant to Section 1.6; provided, however, that BC may, in its\ndiscretion and as a condition precedent to the issuance thereof, require the\nowner of such lost, stolen or destroyed Certificates to deliver a bond in such\nsum as it may reasonably direct as indemnity against any claim that may be made\nagainst BC or the Surviving Corporation or with respect to the Certificates\nalleged to have been lost, stolen or destroyed.\n\n          1.13 Minute Books, Stock Ledger and Other Corporate Records. At the \n               ------------------------------------------------------ \nClosing, BuyGolf shall deliver to BC, in addition to those items set forth in\nSection 7.2, the minute books, stock ledger and other corporate records of\nBuyGolf.\n\n          1.14 Legends on BC Stock. In addition to any other legend that may be\n               ------------------- \nrequired by federal or state securities laws, each certificate for BC Stock that\nis issued hereunder shall bear a legend in substantially the following form:\n\n                                       5\n\n\n \n          \"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN\n          REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR\n          ANY STATE SECURITIES LAWS. THEY MAY NOT BE OFFERED, SOLD OR\n          OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE\n          ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT\n          TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL\n          REASONABLY SATISFACTORY TO THE ISSUER OF SUCH SECURITIES\n          THAT SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS\n          IN FULL COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS\n          AMENDED, OR UNLESS SOLD IN COMPLIANCE WITH RULE 144 UNDER\n          SUCH ACT.\"\n\n                                  ARTICLE II\n              REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS\n              --------------------------------------------------\n\n          Except as set forth on the Disclosure Schedule delivered to BC, which\nhas been executed by an officer of BuyGolf on behalf of the Stockholders (the\n\"BuyGolf Disclosure Schedule\"), each of the Stockholders jointly and severally\n ---------------------------                                                  \nrepresent and warrant to BC as follows:\n\n          2.1  Organization, Good Standing and Qualification. BuyGolf is a \n               --------------------------------------------- \ncorporation duly organized, validly existing and in good standing under the laws\nof the State of Delaware. BuyGolf has all requisite corporate power and\nauthority to own and operate its properties and assets, to execute and deliver\nthis Agreement and to carry out the provisions of this Agreement, and to carry\non its business as presently conducted and as presently proposed to be\nconducted. BuyGolf is duly qualified and is authorized to do business and is in\ngood standing as a foreign corporation in all jurisdictions in which the nature\nof its activities and of its properties (both owned and leased) make such\nqualifications necessary, except for those jurisdictions in which failure to do\nso would not have a material adverse effect on BuyGolf or its business. BuyGolf\nowns no equity securities of any other corporation, limited partnership or\nsimilar entity. BuyGolf is not a participant in any joint venture, partnership\nor similar arrangement. BuyGolf has made available to BC true, correct and\ncomplete copies of BuyGolf's Certificate of Incorporation and Bylaws, each as\namended to date and presently in effect.\n\n          2.2  Capitalization; Voting Rights.\n               ----------------------------- \n\n               (a)  The authorized capital stock of BuyGolf, immediately prior\nto the Closing, will consist of (a) 10,000,000 shares of Common Stock, 8,367,166\nof which are issued and outstanding, 499,000 shares of which are currently\nreserved for issuance pursuant to outstanding option agreements, and 401,000 of\nwhich will be reserved in the future for issuance to key employees, consultants\nand others affiliated with BuyGolf pursuant to stock grant, stock purchase\nand\/or option plans or any other stock incentive program, arrangement or\nagreement approved by BuyGolf's Board of Directors and (b) 5,000,000 shares of\nPreferred Stock (the \"Preferred Stock\"), none of which are issued and\n                      ---------------                 \noutstanding. All issued and outstanding shares of BuyGolf's Common Stock (i)\nhave been duly authorized and validly issued, (ii) are fully paid\n\n                                       6\n\n\n \nand nonassessable, (iii) are free of liens and encumbrances created by BuyGolf\nand (iv) were issued in compliance with all applicable state and federal laws\nconcerning the issuance of securities. The rights, preferences, privileges and\nrestrictions of the BuyGolf Common Stock are as stated in BuyGolf's Certificate\nof Incorporation. Except for BuyGolf's Outstanding Options, there are no\noutstanding options, warrants, puts, calls, rights (including conversion or\npreemptive rights and rights of first refusal), or agreements of any kind for\nthe purchase or acquisition from BuyGolf of any of its securities or other\nrestrictions on the incidents of ownership or transfer created by statute, the\ncharter documents of BuyGolf or any agreement to which BuyGolf is a party or by\nwhich it is bound. There are no amounts owed to any person by BuyGolf as a\nresult of any repurchase or redemption by BuyGolf of its Common Stock.\n\n               (b)  Stockholders own all the BuyGolf Common Stock free and clear\nof all liens, encumbrances, rights, charges and assessments of every nature and\nno shares of BuyGolf Common Stock are subject to any restriction on\ntransferability. Stockholders have not granted any option, warrant or right to\npurchase or acquire any of the BuyGolf Common Stock nor have Stockholders\nentered into any contract, agreement, commitment, understanding or arrangement\nrelating to the BuyGolf Common Stock, or by which Stockholders are or may be\nbound or obligated to transfer or dispose of any of the BuyGolf Common Stock. No\nStockholder has been married since formation of BuyGolf except to the persons\nsigning Spousal Consents to this Agreement, a form of which is attached hereto\nas Exhibit B.\n   --------- \n\n               (c)  Stockholders shall transfer to BC hereunder good and\nmarketable legal and beneficial title to the BuyGolf Common Stock, free and\nclear of all liens, encumbrances, rights, charges and assessments of any nature\nwhatsoever.\n\n               (d)  There are no outstanding proxies, stockholders' agreements,\nvoting trusts or other agreements of any kind whatsoever restricting,\ncontrolling, directing or otherwise affecting the voting of the BuyGolf Common\nStock.\n\n          2.3  Authority; No Violation.\n               ----------------------- \n\n               (a)  BuyGolf has full corporate power and authority to execute\nand deliver this Agreement, to perform its obligations hereunder and to\nconsummate the transactions contemplated hereby. The execution and delivery of\nthis Agreement and the consummation of the transactions contemplated hereby have\nbeen duly and validly approved by the Board of Directors of BuyGolf. The\nexecution and delivery of this Agreement and the consummation of the\ntransactions contemplated hereby have been duly and validly approved by\nstockholders representing one hundred percent of the outstanding shares of\nBuyGolf's capital stock. No other corporate proceeding on the part of BuyGolf is\nnecessary to approve this Agreement and to consummate the transactions\ncontemplated hereby. This Agreement and all other agreements and documents to be\nentered into in connection herewith have been duly and validly executed and\ndelivered by BuyGolf and each of the Stockholders and (assuming due\nauthorization, execution and delivery by BC) constitute valid and binding\nobligations of BuyGolf and each of the Stockholders, enforceable against BuyGolf\nand each of the Stockholders in accordance with their respective terms, except\nas enforcement may be limited by general principles of equity whether applied in\na court of law or a court of equity and by bankruptcy, insolvency and similar\nlaws affecting creditors' rights and remedies generally.\n\n                                       7\n\n\n \n               (b)  Stockholders have the power and authority to enter into this\nAgreement and to perform their obligations hereunder and to consummate the\ntransactions contemplated hereby. This Agreement has been duly executed and\ndelivered by the Stockholders and constitutes a legal, valid and binding\nobligation of the Stockholders, enforceable against the Stockholders in\naccordance with the terms hereof.\n\n               (c)  Neither the execution and delivery of this Agreement by\nBuyGolf and each of the Stockholders, nor the consummation by BuyGolf and each\nof the Stockholders of the transactions contemplated hereby, nor compliance by\nBuyGolf and each of the Stockholders with any of the terms or provisions hereof,\nwill (i) violate any provision of the Certificate of Incorporation or Bylaws of\nBuyGolf, or (ii) violate any statute, code, ordinance, rule, regulation,\njudgment, order, writ, decree or injunction applicable to BuyGolf or any of the\nStockholders or any of their respective properties or assets, or (iii) violate,\nconflict with, result in a breach of any provision of or the loss of any benefit\nunder, constitute a default (or an event which, with notice or lapse of time, or\nboth, would constitute a default) under, result in the termination of or a right\nof termination or cancellation under, accelerate the performance required by, or\nresult in the creation of any lien, pledge, security interest, charge or other\nencumbrance upon any of the properties or assets of BuyGolf or any of the\nStockholders under, any of the terms, conditions or provisions of any note,\nbond, mortgage, indenture, deed of trust, license, lease, agreement or other\ninstrument or obligation to which BuyGolf or any of the Stockholders is a party,\nor by which BuyGolf or any of the Stockholders or any of their respective\nproperties or assets may be bound or affected.\n\n          2.4  Consents and Approvals. No consents or approvals, orders or \n               ---------------------- \nauthorizations of or filings or registrations with any court, administrative\nagency or commission or other governmental authority or instrumentality (each a\n\"Governmental Entity\") or with any third party are necessary with respect to\n -------------------          \nBuyGolf or any of the Stockholders in connection with (1) the execution and\ndelivery of this Agreement and (2) the consummation of the Merger and the other\ntransactions contemplated hereby.\n\n          2.5  Financial Statements. BuyGolf has delivered true and correct \n               -------------------- \ncopies of its audited balance sheet as of December 31, 1998 and audited\nstatements of operations, stockholders equity and cash flows for the one month\nperiod from inception and ended December 31, 1998 and the unaudited balance\nsheet (\"Balance Sheet\") as of June 30, 1999 (the \"Balance Sheet Date\") and the\n        -------------                             ------------------\nunaudited statements of operations, stockholders' equity and cash flows for the\nsix-month period ended June 30, 1999 (collectively, the \"Financial Statements\").\n                                                         --------------------\nSuch Financial Statements have been prepared in accordance with generally\naccepted accounting principles (\"GAAP\") applied on a consistent basis throughout\n                                 ----  \nthe periods indicated and with each other (in the case of Financial Statements,\nsubject to normal year-end adjustments and the absence of footnote disclosures).\nThe Financial Statements (a) are complete and correct in all material respects,\n(b) are in accordance with BuyGolf's books and records, and (c) fairly present\nthe financial condition and operating results of BuyGolf as of the dates, and\nfor the periods indicated therein. Since the Balance Sheet Date, there has not\nbeen any material adverse change in the business, operations or financial\ncondition of BuyGolf. Except as disclosed in the Financial Statements, BuyGolf\nis not a guarantor or indemnitor of any indebtedness of any other person, firm\nor corporation. The books and records of BuyGolf have been, and are being,\nmaintained in accordance with GAAP and any other applicable legal and accounting\nrequirements.\n\n                                       8\n\n\n \n          2.6  Absence of Undisclosed Liabilities. BuyGolf has no material\n               ----------------------------------\nobligations or liabilities of any nature (matured or unmatured, fixed or\ncontingent) other than (i) those set forth or adequately provided for in the\nBalance Sheet, (ii) those incurred in the ordinary course of business and not\nrequired to be set forth in the Balance Sheet under GAAP, (iii) those incurred\nin the ordinary course of business since the Balance Sheet Date and consistent\nwith past practice, and (iv) those incurred in connection with the execution of\nthis Agreement.\n\n          2.7  Agreements; Action.\n               ------------------\n\n               (a)  Except for agreements explicitly contemplated hereby, there\nare no agreements, understandings or proposed transactions between BuyGolf and\nany of its officers, directors, affiliates or any affiliate thereof.\n\n               (b)  There are no agreements, understandings, instruments,\ncontracts, proposed transactions, judgments, orders, writs or decrees to which\nBuyGolf is a party or to its knowledge by which it is bound which may involve\n(i) obligations (contingent or otherwise) of, or payments to, BuyGolf (other\nthan obligations of, or payments to, BuyGolf arising in the ordinary course of\nbusiness), or (ii) the license of any patent, copyright, trade secret or other\nproprietary right to or from BuyGolf (other than licenses arising from the\npurchase of \"off the shelf\" or other standard products), or (iii) provisions\nrestricting or affecting the development, manufacture or distribution of\nBuyGolf's products or services, or (iv) indemnification by BuyGolf with respect\nto infringements of proprietary rights.\n\n               (c)  BuyGolf has not (i) declared or paid any dividends, or\nauthorized or made any distribution upon or with respect to any class or series\nof its capital stock, (ii) incurred any indebtedness for money borrowed or any\nother liabilities (other than with respect to dividend obligations,\ndistributions, indebtedness and other obligations incurred in the ordinary\ncourse of business or as disclosed in the Financial Statements), (iii) made any\nloans or advances to any person, other than ordinary advances for travel\nexpenses, (iv) sold, exchanged or otherwise disposed of any of its assets or\nrights, other than the sale of its inventory in the ordinary course of business,\n(v) entered into any material contract, other than in the ordinary course of\nbusiness and as provided to BC, and there has not occurred any amendment,\ntermination or default under any material contract to which BuyGolf is a party\nor by which it is bound, (vi) made any change in its accounting practices or\nmade any revaluation of its assets, (vii) made any purchase or other acquisition\nof, sale, lease, disposition, or other transfer of, or mortgage, pledge or\nsubjection to any material encumbrance or lien on any material asset, tangible\nor intangible, of BuyGolf, other than in the ordinary course of business, or\n(viii) made any sale, assignment, or transfer of any patents, trademarks,\ncopyrights, trade secrets or other intangible assets, other than in the ordinary\ncourse of business.\n\n          2.8  Obligations to Related Parties. There are no obligations of\n               ------------------------------    \nBuyGolf to officers, directors, stockholders, or employees of BuyGolf other than\n(a) for payment of salary for services rendered, (b) reimbursement for\nreasonable expenses incurred on behalf of BuyGolf and (c) for other standard\nemployee benefits made generally available to all employees (including stock\noption agreements outstanding under any stock option plan approved by the Board\nof Directors of BuyGolf). No officer, director or, to the best of BuyGolf's and\nthe Stockholders knowledge, stockholder, or any member of their immediate\nfamilies, are indebted to BuyGolf or have any direct or indirect ownership\ninterest in any firm or corporation with\n\n                                       9\n\n\n \nwhich BuyGolf is affiliated or with which BuyGolf has a business relationship,\nor any firm or corporation which competes with BuyGolf, except that officers,\ndirectors and\/or stockholders of BuyGolf may own stock in publicly traded\ncompanies which may compete with BuyGolf. No such officer, director or\nstockholder, or any member of their immediate families is, directly or\nindirectly, interested in any material contract with BuyGolf (other than such\ncontracts related to any such person's ownership of capital stock or other\nsecurities of BuyGolf).\n\n          2.9   Title to Properties and Assets; Liens, Etc. BuyGolf has good and\n                ------------------------------    \nmarketable title to its properties and assets, and good title to its leasehold\nestates, in each case subject to no mortgage, pledge, lien, lease, encumbrance\nor charge, other than (i) those resulting from taxes which have not yet become\ndelinquent, (ii) minor liens and encumbrances which do not materially detract\nfrom the value of the property subject thereto or materially impair the\noperations of BuyGolf and (iii) those that have otherwise arisen in the ordinary\ncourse of business. All facilities, machinery, equipment, fixtures, vehicles and\nother properties owned, leased or used by BuyGolf are in good operating\ncondition and repair and are reasonably fit and usable for the purposes for\nwhich they are being used. BuyGolf is in compliance with all material terms of\neach lease to which it is a party or is otherwise bound.\n\n          2.10  Patents and Trademarks. BuyGolf owns or possesses sufficient\n                ----------------------\nlegal rights to all patents, trademarks, service marks, trade names, copyrights,\ntrade secrets, information and other proprietary rights and processes necessary\nfor its business as now conducted and as proposed to be conducted, without any\nknown infringement of the rights of others. There are no outstanding options,\nlicenses or agreements of any kind relating to the foregoing, nor is BuyGolf\nbound by or a party to any options, licenses or agreements of any kind with\nrespect to the patents, trademarks, service marks, trade names, copyrights,\ntrade secrets, licenses, information and other proprietary rights and processes\nof any other person or entity other than such licenses or agreements arising\nfrom the purchase of \"off the shelf\" or standard products. BuyGolf has not\nreceived any communications alleging that BuyGolf has violated or, by conducting\nits business as proposed, would violate any of the patents, trademarks, service\nmarks, trade names, copyrights or trade secrets or other proprietary rights of\nany other person or entity. BuyGolf is not aware that any of its employees is\nobligated under any contract (including licenses, covenants or commitments or\nany nature) or other agreement, or subject to any judgment, decree or order of\nany court or administrative agency, that would interfere with their duties to\nBuyGolf's business by the employees of BuyGolf, nor the conduct of BuyGolf's\nbusiness as proposed, will, to BuyGolf's knowledge, conflict with or result in a\nbreach of the terms, conditions or provisions of, or constitute a default under,\nany contract, covenant or instrument under which any employee is now obligated.\nBuyGolf does not believe it is or will be necessary to utilize any inventions,\ntrade secrets or proprietary information of any of its employees made prior to\ntheir employment by BuyGolf, except for inventions, trade secrets or proprietary\ninformation that have been assigned to BuyGolf.\n\n          2.11  Compliance with Other Instruments. BuyGolf is not in violation\n                ---------------------------------    \nor default of any term of its Certificate of Incorporation or Bylaws, or of any\nprovision of any mortgage, indenture, contract, agreement, instrument or\ncontract to which it is party or by which it is bound or of any judgment,\ndecree, order, writ or, to its knowledge, any statute, rule or regulation\napplicable to BuyGolf which, individually or in the aggregate, would materially\nand adversely affect the business, assets, liabilities, financial condition,\noperations or prospects of BuyGolf. The execution, delivery, and performance of\nand compliance with this Agreement and the related \n\n                                      10\n\n\n \nagreements, and the Merger pursuant hereto, will not, with or without the\npassage of time or giving of notice, result in any such material violation, or\nbe in conflict with or constitute a default under any such term, or result in\nthe creation of any mortgage, pledge, lien, encumbrance or charge upon any of\nthe properties or assets of BuyGolf or the suspension, revocation, impairment,\nforfeiture or nonrenewal of any permit, license, authorization or approval\napplicable to BuyGolf, its business or operations or any of its assets or\nproperties.\n\n          2.12  Litigation. There is no action, suit, proceeding or\n                ----------\ninvestigation pending or to BuyGolf's knowledge currently threatened against\nBuyGolf that questions the validity of this Agreement, or the right of BuyGolf\nto enter into such agreement, or to consummate the transactions contemplated\nhereby, or which might result, either individually or in the aggregate, in any\nmaterial adverse change in the assets, condition, affairs or prospects of\nBuyGolf, financially or otherwise, or any change in the current equity ownership\nof BuyGolf, nor is BuyGolf aware that there is any basis for the foregoing. The\nforegoing includes, without limitation, actions pending or threatened (or any\nbasis therefor known to BuyGolf) involving the prior employment of any of\nBuyGolf's employees, their use in connection with BuyGolf's business of any\ninformation or techniques allegedly proprietary to any of their former\nemployers, or their obligations under any agreements with prior employers.\nBuyGolf is not a party or subject to the provisions of any order, writ,\ninjunction, judgment or decree of any court or government agency or\ninstrumentality. There is no action, suit, proceeding or investigation by\nBuyGolf currently pending or which BuyGolf intends to initiate.\n\n          2.13  Tax Returns and Payments. BuyGolf has timely filed all tax\n                ------------------------    \nreturns (federal, state and local) required to be filed by it. All taxes shown\nto be due and payable on such returns, any assessments imposed, and to BuyGolf's\nknowledge all other taxes due and payable by BuyGolf on or before the Closing\nhave been paid or will be paid prior to the time they become delinquent. BuyGolf\nhas not been advised (i) that any of its returns, federal, state or other, have\nbeen or are being audited as of the date hereof, or (ii) of any deficiency in\nassessment or proposed judgment to its federal, state or other taxes. BuyGolf\nhas no knowledge of any liability of any tax to be imposed upon its properties\nor assets as of the date of this Agreement that is not adequately provided for.\n\n          2.14  Employees. BuyGolf has no collective bargaining agreements with\n                ---------\nany of its employees. There is no labor union organizing activity pending or, to\nBuyGolf's knowledge, threatened with respect to BuyGolf. No employee has any\nagreement or contract, written or verbal, regarding his employment. To BuyGolf's\nknowledge, no employee of BuyGolf, nor any consultant with whom BuyGolf has\ncontracted, is in violation of any term of any employment contract, proprietary\ninformation agreement or any other agreement relating to the right of any such\nindividual to be employed by, or to contract with, BuyGolf because of the nature\nof the business to be conducted by BuyGolf; and to BuyGolf's knowledge the\ncontinued employment by BuyGolf of its present employees, and the performance of\nBuyGolf's contracts with its independent contractors, will not result in any\nsuch violation. BuyGolf has not received any notice alleging that any such\nviolation has occurred. No employee of BuyGolf has been granted the right to\ncontinued employment by BuyGolf or to any material compensation following\ntermination of employment with BuyGolf. BuyGolf is not aware that any officer or\nkey employee, or that any group of key employees, intends to terminate their\nemployment with BuyGolf, nor does BuyGolf have a present intention to terminate\nthe employment of any officer, key employee or group of key employees.\n\n                                      11\n\n\n \n          2.15  Nondisclosure and Developments Agreements. Each current employee\n                -----------------------------------------\nand officer of BuyGolf has executed, or will execute prior to or at Closing, a\nProprietary Information and Inventions Agreement in the form attached hereto as\nExhibit C. To BuyGolf's knowledge, no current employee, officer or consultant of\nBuyGolf has excluded works or inventions made prior to his or her employment\nwith BuyGolf from his or her assignment of inventions pursuant to such employee,\nofficer or consultant's agreement. BuyGolf, after reasonable investigation, is\nnot aware that any of its employees, officers or consultants is in violation\nthereof and BuyGolf will use its best efforts to prevent any such violation.\n\n          2.16  Registration Rights. BuyGolf is presently not under any\n                -------------------\nobligation, and has not granted any rights, to register any of BuyGolf's\npresently outstanding securities or any of its securities that may hereafter be\nissued.\n\n          2.17  Compliance with Laws; Permits. BuyGolf is not in violation of\n                -----------------------------\nany applicable statute, rule, regulation, order or restriction of any domestic\nor foreign government or any instrumentality or agency thereof in respect of the\nconduct of its business or the ownership of its properties which violation would\nmaterially and adversely affect the business, assets, liabilities, financial\ncondition, operations or prospects of BuyGolf. No governmental orders,\npermissions, consents, approvals or authorizations are required to be obtained\nand no registrations or declarations are required to be filed in connection with\nthe execution and delivery of this Agreement and the sale and delivery of the\nBuyGolf Common Stock, or the other transactions to be consummated at the\nClosing, as contemplated in this Agreement. BuyGolf has all franchises, permits,\nlicenses and any similar authority necessary for the conduct of its business as\nnow being conducted by it, the lack of which, individually or in the aggregate,\ncould materially and adversely affect the business, properties, prospects or\nfinancial condition of BuyGolf and believes it can obtain, without undue burden\nor expense, any similar authority for the conduct of its business as planned to\nbe conducted.\n\n          2.18  Absence of Breaches or Defaults. BuyGolf is not and, to the\n                -------------------------------       \nknowledge of BuyGolf, no other party is, in default under, or in breach or\nviolation of, any material contract and, to the knowledge of the Stockholders,\nno event has occurred which, with the giving of notice or passage of time or\nboth would constitute a default under any such material contract. Other than\ncontracts which have terminated or expired in accordance with their terms, each\nof BuyGolf's material contracts is valid, binding and enforceable in accordance\nwith its terms (subject to the effects of bankruptcy, insolvency, fraudulent\nconveyance, reorganization, moratorium and other similar laws relating to or\naffecting creditors' rights generally, general equitable principles (whether\nconsidered on a proceeding in equity or at law) and an implied covenant of good\nfaith and fair dealing) and is in full force and effect, and assuming all\nconsents required by the terms thereof or applicable law have been obtained,\nsuch contracts will continue to be valid, binding and enforceable in accordance\nwith their respective terms and in full force and effect immediately following\nthe consummation of the transactions contemplated hereby. No event has occurred\nwhich either entitles, or would, on notice or lapse of time or both, entitle the\nholder of any indebtedness for borrowed money affecting BuyGolf to accelerate,\nor which does accelerate, the maturity of any indebtedness affecting BuyGolf.\n\n          2.19  Brokers. Neither BuyGolf nor any of its officers or directors\n                ------- \nhas employed any broker or finder or incurred any liability for any broker's\nfees, commissions or finder's fees in connection with any of the transactions\ncontemplated by this Agreement.\n\n                                      12\n\n\n \n          2.20  No Misstatements. Neither this Agreement, nor any other\n                ----------------\ndocument, certificate or written statement prepared by BuyGolf and\/or the\nStockholders and furnished to BC in connection herewith, contain any untrue\nstatement of material fact or omits to state a material fact known to BuyGolf or\nany Stockholder necessary in order to make the statements contained herein and\ntherein not misleading as of the date thereof or hereof. There is no fact known\nto any Stockholder, in a Stockholder's individual capacity or in a Stockholder's\ncapacity as an officer and\/or director of BuyGolf, which adversely affects the\nbusiness or financial condition or operations of BuyGolf, which has not been set\nforth in this Agreement.\n\n          2.21  Environmental and Safety Laws. BuyGolf is not in violation of\n                -----------------------------\nany applicable statute, law or regulation relating to the environment or\noccupational health and safety, and to its knowledge, no material expenditures\nare or will be required in order to comply with any such existing statute, law\nor regulation.\n\n          2.22  Year 2000 Compliance. BuyGolf has reviewed the areas within its\n                --------------------    \nbusiness and operations which could be adversely affected by Year 2000 issues\nand evaluated the costs associated with modifying and testing its systems for\nthe Year 2000. BuyGolf does not believe that the cost of Year 2000 compliance\nfor its internal information systems will be material to BuyGolf or that it will\nhave a material adverse effect on BuyGolf's business, financial condition or\nresults of operations.\n\n          2.23  Securities Law Exemption. Each Stockholder as to itself\nseverally and not jointly hereby represents and warrants to BC that:\n\n                (a)  Purchase Entirely for Own Account. This Agreement is made\nwith each Stockholder in reliance upon such Stockholder's representation to BC,\nwhich by such execution of this Agreement such Stockholder hereby confirms, that\nthe BC Stock will be acquired for investment for its own account, not as a\nnominee or agent, and not with a view to the resale or distribution of any part\nthereof, and that such Stockholder has no present intention of selling, granting\nany participation in, or otherwise distributing the same. By executing this\nAgreement, each Stockholder further represents that such Stockholder does not\nhave any contract, undertaking, agreement or arrangement with any third party to\nsell, transfer or grant participations to such third party or to any third\nperson, with respect to any of the BC Stock .\n\n                (b)  Reliance Upon Stockholders' Representations. Each\n                     -------------------------------------------    \nStockholder understands that the BC Stock is not registered under the Securities\nAct of 1933 (the \"Securities Act\") on the ground that the sale provided for in\nthis Agreement and the issuance of securities hereunder is exempt from\nregistration under the Securities Act pursuant to section 4(2) thereof and\nRegulation D promulgated thereunder, and that BC's reliance on such exemption is\npredicated on the Stockholder's representations set forth herein.\n\n                (c)  Receipt of Information. Each Stockholder believes he\/she\nhas received all the information necessary or appropriate for deciding whether\nto acquire the BC Stock. Each Stockholder further represents that it has had an\nopportunity to ask questions and receive answers from BC regarding the terms and\nconditions of the acquisition of BuyGolf and the business, properties, prospects\nand financial condition of BC and to obtain additional information (to the\nextent BC possessed such information or could acquire it without unreasonable\neffort or expense) necessary to verify the accuracy of any information furnished\nto \n\n                                      13\n\n\n \nit or to which it had access.\n\n          (d)   Investment Experience. Each Stockholder acknowledges that his or\n                ---------------------  \nher investment in BC Stock involves a high degree of risk. Further, each\nStockholder represents that he\/she is experienced in evaluating and investing in\nsecurities of companies in the development stage and acknowledges that he\/she is\nable to fend for himself\/herself, can bear the economic risk of his\/her\ninvestment, and has such knowledge and experience in financial or business\nmatters that he\/she is capable of evaluating the merits and risks of the\ninvestment in the BC Stock.\n\n          (e)   Accredited Investor. Each Stockholder is an \"accredited\n                -------------------\ninvestor\" within the meaning of SEC Rule 501 of Regulation D, as presently in\neffect.\n\n          (f)   Restricted Securities. Each Stockholder understands that the BC\n                ---------------------\nStock may not be sold, transferred, or otherwise disposed of without\nregistration under the Securities Act or an exemption therefrom, and that in the\nabsence of an effective registration statement covering the BC Stock or an\navailable exemption from registration under the Securities Act, the BC Stock\nmust be held indefinitely. In particular, each Stockholder is aware that the BC\nStock may not be sold pursuant to Rule 144 promulgated under the Securities Act\nunless all of the conditions of that Rule are met. Among the conditions for use\nof Rule 144 is the availability of current information to the public about BC.\nSuch information is not now available.\n\n                                  ARTICLE III\n              REPRESENTATIONS AND WARRANTIES OF BC AND MERGER SUB\n              ---------------------------------------------------\n\n     Except as set forth on the BC Disclosure Schedule attached hereto (the \"BC\n                                                                             --\nDisclosure Schedule\") BC and Merger Sub, jointly and severally, represent and\n-------------------\nwarrant to BuyGolf and the Stockholders as follows:\n\n     3.1 Organization, Good Standing and Qualification. Each of BC and Merger\n         --------------------------------------------- \nSub is a duly organized corporation, validly existing and in good standing under\nthe laws of the State of Delaware. Prior to the date hereof, Merger Sub has not\nengaged in any activity other than the transactions contemplated by this\nAgreement. Each of BC and Merger Sub has all requisite corporate power and\nauthority to own and operate its properties and assets, to execute and deliver\nthis Agreement and to carry out the provisions of this Agreement, and to carry\non its business as presently conducted and as presently proposed to be\nconducted. Each of BC and Merger Sub is duly qualified and is authorized to do\nbusiness and is in good standing as a foreign corporation in all jurisdictions\nin which the nature of its activities and of its properties (both owned and\nleased) make such qualifications necessary, except for those jurisdictions in\nwhich failure to do so would not have a material adverse effect on BC, Merger\nSub or their businesses. Neither BC nor Merger Sub owns equity securities of any\nother corporation, limited partnership or similar entity. Neither BC nor Merger\nSub is a participant in any joint venture, partnership or similar arrangement.\nBC and Merger Sub have each made available to BuyGolf true, correct and complete\ncopies of their Certificates of Incorporation and Bylaws, each as amended to\ndate and presently in effect.\n\n                                      14\n\n\n \n          3.2  Capitalization; Voting Rights. The authorized capital stock of\n               -----------------------------\nBC, immediately prior to the Closing, will consist of (a) eight hundred fifty\nmillion (850,000,000) shares of Common Stock, one hundred forty-two million nine\nhundred twenty-two thousand eight hundred ten (142,922,810) shares of which are\nissued and outstanding, thirty million five hundred eighty-three thousand five\nhundred (30,583,500) shares of which are currently reserved for issuance\npursuant to outstanding option agreements, and seven hundred eighty-eight\nthousand four hundred sixty (788,460) shares of which will be reserved in the\nfuture for issuance to key employees, consultants and others affiliated with BC\npursuant to stock grant, stock purchase and\/or option plans or any other stock\nincentive program, arrangement or agreement approved by BC's Board of Directors\nand (b) one hundred fifty million (150,000,000) shares of Preferred Stock (the\n\"Preferred Stock\") , 19,481,130 of which are designated Series A Convertible\nParticipating Preferred Stock, all of which are issued and outstanding and\n15,877,249 of which are designated Series B Convertible Participating Preferred\nStock, all of which are issued and outstanding. The authorized capital stock of\nMerger Sub consists of one thousand (1,000) shares of common stock, $0.0001 par\nvalue, all of which are issued and outstanding and held by BC. All issued and\noutstanding shares of BC and Merger Sub capital stock (i) have been duly\nauthorized and validly issued, (ii) are fully paid and nonassessable, (iii) are\nfree of liens and encumbrances created by BC or Merger Sub and (iv) were issued\nin compliance with all applicable state and federal laws concerning the issuance\nof securities. Except as may be granted pursuant to this Agreement and except as\nset forth above, there are no outstanding options, warrants, puts, calls, rights\n(including conversion or preemptive rights and rights of first refusal), proxy\nor stockholder agreements, or agreements of any kind for the purchase or\nacquisition from BC or Merger Sub of any of their securities or other\nrestrictions on the incidents of ownership or transfer created by statute, the\ncharter documents of BC or Merger Sub or any agreement to which BC or Merger Sub\nis a party or by which they are bound.\n\n          3.3  Authority; No Violation.\n               -----------------------           \n\n               (a)  Each of BC and Merger Sub has full corporate power and\nauthority to execute and deliver this Agreement, to perform its obligations\nhereunder and to consummate the transactions contemplated hereby. The execution\nand delivery of this Agreement and the consummation of the transactions\ncontemplated hereby have been duly and validly approved by the Board of\nDirectors of BC. No other corporate proceedings on the part of BC or Merger Sub\nare necessary to approve this Agreement or to consummate the transactions\ncontemplated hereby. This Agreement and all other agreements and documents to be\nentered into in connection herewith have been duly and validly executed and\ndelivered by BC and Merger Sub, and (assuming due authorization, execution and\ndelivery by BuyGolf) constitute valid and binding obligations of BC and Merger\nSub, enforceable against BC and Merger Sub in accordance with their respective\nterms, except as enforcement may be limited by general principles of equity\nwhether applied in a court of law or a court of equity and by bankruptcy,\ninsolvency and similar laws affecting creditors' rights and remedies generally.\n\n               (b)  Neither the execution and delivery of this Agreement by BC\nor Merger Sub, nor the consummation by BC or Merger Sub of the transactions\ncontemplated hereby, nor compliance by BC or Merger Sub with any of the terms or\nprovisions hereof, will (i) violate any provision of the Certificate of\nIncorporation or Bylaws of BC or Merger Sub, or (ii) violate any statute, code,\nordinance, rule, regulation, judgment, order, writ, decree or injunction\napplicable to BC or Merger Sub or any of its respective properties or assets, or\n\n                                      15\n\n\n \n(iii) violate, conflict with, result in a breach of any provision of or the loss\nof any benefit under, constitute a default (or an event which, with notice or\nlapse of time, or both, would constitute a default) under, result in the\ntermination of or a right of termination or cancellation under, accelerate the\nperformance required by, or result in the creation of any lien, pledge, security\ninterest, charge or other encumbrance upon any of the properties or assets of BC\nor Merger Sub under, any of the terms, conditions or provisions of any note,\nbond, mortgage, indenture, deed of trust, license, lease, agreement or other\ninstrument or obligation to which BC or Merger Sub is a party, or by which BC or\nMerger Sub or any of their respective properties or assets may be bound or\naffected.\n\n               3.4  Consents and Approvals. No consents or approvals, orders or\n                    ----------------------\nauthorizations of or filings or registrations with any court, administrative\nagency or commission or other governmental authority or instrumentality or with\nany third party are necessary with respect to BC or Merger Sub in connection\nwith (1) the execution and delivery of this Agreement and (2) the consummation\nof the Merger and the other transactions contemplated hereby.\n\n               3.5  Financial Statements. BC's unaudited balance sheet as of\n                    --------------------\nDecember 31, 1998 and unaudited statements of operations and cash flows of BC\nfor the 12-month period ended December 31, 1998 and BC's unaudited balance sheet\nas of June 30, 1999 (the Latest Balance Sheet\") and unaudited statements of\noperations and cash flows of BC for the six-month period ending June 30, 1999\n(the \"BC Financial Statements\") delivered to the Stockholders in connection with\nthe investment contemplated hereby have been prepared in accordance with GAAP\nconsistently applied (in the case of BC Financial Statements, subject to normal\nyear-end adjustments and the absence of footnote disclosures) and fairly present\nin all material respects the financial position and the results of operations of\nBC for the periods covered thereby, and BC has no material liabilities or\nobligations of any nature (absolute, accrued, contingent or otherwise) that are\nnot either reflected or fully reserved against on the Latest Balance Sheet or\nincurred in the ordinary course of the business of BC subsequent to the date\nthereof. Since the date of the Latest Balance Sheet, there has not been any\nmaterial adverse change in the business, operations, financial condition or\nbusiness of BC.\n\n               3.6  Absence of Undisclosed Liabilities. Neither BC nor Merger\n                    ----------------------------------\nSub has any material obligations or liabilities of any nature (matured or\nunmatured, fixed or contingent) other than (i) those set forth or adequately\nprovided for in the Balance Sheet, (ii) those incurred in the ordinary course of\nbusiness and not required to be set forth in the Balance Sheet under GAAP, (iii)\nthose incurred in the ordinary course of business since the Balance Sheet Date\nand consistent with past practice, and (iv) those incurred in connection with\nthe execution of this Agreement.\n\n               3.7  Agreements; Action.\n                    ------------------\n\n                    (a)  Except for agreements explicitly contemplated hereby,\nthere are no agreements, understandings or proposed transactions between BC and\nany of its officers, directors, affiliates or any affiliate thereof.\n\n                    (b)  There are no agreements, understandings, instruments,\ncontracts, proposed transactions, judgments, orders, writs or decrees to which\nBC or Merger Sub is a party or to its knowledge by which it is bound which may\ninvolve (i) obligations (contingent or otherwise) of, or payments to, BC or\nMerger Sub (other than obligations of, or payments to, BC\n\n                                      16\n\n\n \nor Merger Sub arising in the ordinary course of business), or (ii) the license\nof any patent, copyright, trade secret or other proprietary right to or from BC\nor Merger Sub (other than licenses arising from the purchase of \"off the shelf\"\nor other standard products), or (iii) provisions restricting or affecting the\ndevelopment, manufacture or distribution of BC's or Merger Sub's products or\nservices, or (iv) indemnification by BC or Merger Sub with respect to\ninfringements of proprietary rights.\n\n               (c)  Neither BC nor Merger Sub has (i) declared or paid any\ndividends, or authorized or made any distribution upon or with respect to any\nclass or series of its capital stock, (ii) incurred any indebtedness for money\nborrowed or any other liabilities (other than with respect to dividend\nobligations, distributions, indebtedness and other obligations incurred in the\nordinary course of business or as disclosed in the BC Financial Statements),\n(iii) made any loans or advances to any person, other than ordinary advances for\ntravel expenses, (iv) sold, exchanged or otherwise disposed of any of its assets\nor rights, other than the sale of its inventory in the ordinary course of\nbusiness, (v) entered into any material contract, other than in the ordinary\ncourse of business, and there has not occurred any amendment, termination or\ndefault under any material contract to which BC or Merger Sub is a party or by\nwhich it is bound, (vi) made any change in its accounting practices or made any\nrevaluation of its assets, (vii) made any purchase or other acquisition of,\nsale, lease, disposition, or other transfer of, or mortgage, pledge or\nsubjection to any material encumbrance or lien on any material asset, tangible\nor intangible, of BC or Merger Sub, other than in the ordinary course of\nbusiness, or (viii) made any sale, assignment, or transfer of any patents,\ntrademarks, copyrights, trade secrets or other intangible assets, other than in\nthe ordinary course of business.\n\n          3.8  Obligations to Related Parties. There are no obligations of BC or\n               ------------------------------     \nMerger Sub to its officers, directors, stockholders, or employees other than (a)\nfor payment of salary for services rendered, (b) reimbursement for reasonable\nexpenses incurred on behalf of BC or Merger Sub and (c) for other standard\nemployee benefits made generally available to all employees (including stock\noption agreements outstanding under any stock option plan approved by the Board\nof Directors of BC). No officer, director or, to the best of BC's or Merger\nSub's knowledge, stockholder, or any member of their immediate families, are\nindebted to BC or Merger Sub or have any direct or indirect ownership interest\nin any firm or corporation with which BC or Merger Sub is affiliated or with\nwhich BC or Merger Sub has a business relationship, or any firm or corporation\nwhich competes with BC or Merger Sub, except that officers, directors and\/or\nstockholders of BC and Merger Sub may own stock in publicly traded companies\nwhich may compete with BC or Merger Sub. No such officer, director or\nstockholder, or any member of their immediate families is, directly or\nindirectly, interested in any material contract with BC or Merger Sub (other\nthan such contracts related to any such person's ownership of capital stock or\nother securities of BC).\n\n          3.9  Title to Properties and Assets; Liens, Etc. Each of BC and Merger\n               ------------------------------------------\nSub has good and marketable title to its properties and assets, and good title\nto its leasehold estates, in each case subject to no mortgage, pledge, lien,\nlease, encumbrance or charge, other than (i) those resulting from taxes which\nhave not yet become delinquent, (ii) minor liens and encumbrances which do not\nmaterially detract from the value of the property subject thereto or materially\nimpair the operations of BC or Merger Sub and (iii) those that have otherwise\narisen in the ordinary course of business. All facilities, machinery, equipment,\nfixtures, vehicles and other properties owned, leased or used by BC and Merger\nSub are in good operating condition and\n\n                                      17\n\n\n \nrepair and are reasonably fit and usable for the purposes for which they are\nbeing used. BC and Merger Sub are in compliance with all material terms of each\nlease to which it is a party or is otherwise bound.\n\n          3.10   Patents and Trademarks. Each of BC and Merger Sub owns or\n                 ----------------------\npossesses sufficient legal rights to all patents, trademarks, service marks,\ntrade names, copyrights, trade secrets, information and other proprietary rights\nand processes necessary for its business as now conducted and as proposed to be\nconducted, without any known infringement of the rights of others. There are no\noutstanding options, licenses or agreements of any kind relating to the\nforegoing, nor is BC or Merger Sub bound by or a party to any options, licenses\nor agreements of any kind with respect to the patents, trademarks, service\nmarks, trade names, copyrights, trade secrets, licenses, information and other\nproprietary rights and processes of any other person or entity other than such\nlicenses or agreements arising from the purchase of \"off the shelf\" or standard\nproducts. BC has not received any communications alleging that BC or Merger Sub\nhas violated or, by conducting its business as proposed, would violate any of\nthe patents, trademarks, service marks, trade names, copyrights or trade secrets\nor other proprietary rights of any other person or entity. BC is not aware that\nany of its employees is obligated under any contract (including licenses,\ncovenants or commitments or any nature) or other agreement, or subject to any\njudgment, decree or order of any court or administrative agency, that would\ninterfere with their duties to BC's business by the employees of BC, nor the\nconduct of BC's business as proposed, will, to BC's knowledge, conflict with or\nresult in a breach of the terms, conditions or provisions of, or constitute a\ndefault under, any contract, covenant or instrument under which any employee is\nnow obligated. BC does not believe it is or will be necessary to utilize any\ninventions, trade secrets or proprietary information of any of its employees\nmade prior to their employment by BC, except for inventions, trade secrets or\nproprietary information that have been assigned to BC.\n\n          3.11  Compliance with Other Instruments. Neither BC nor Merger Sub is\n                --------------------------------- \nin violation or default of any term of its Certificate of Incorporation or\nBylaws, or of any provision of any mortgage, indenture, contract, agreement,\ninstrument or contract to which it is party or by which it is bound or of any\njudgment, decree, order, writ or, to its knowledge, any statute, rule or\nregulation applicable to BC or Merger Sub which, individually or in the\naggregate, would materially and adversely affect the business, assets,\nliabilities, financial condition, operations or prospects of BC or Merger Sub.\nThe execution, delivery, and performance of and compliance with this Agreement\nand the related agreements, and the issuance of the BC Stock pursuant hereto,\nwill not, with or without the passage of time or giving of notice, result in any\nsuch material violation, or be in conflict with or constitute a default under\nany such term, or result in the creation of any mortgage, pledge, lien,\nencumbrance or charge upon any of the properties or assets of BC or Merger Sub\nor the suspension, revocation, impairment, forfeiture or nonrenewal of any\npermit, license, authorization or approval applicable to BC or Merger Sub, its\nbusiness or operations or any of its assets or properties.\n\n          3.12  Litigation. There is no action, suit, proceeding or\n                ----------\ninvestigation pending or to BC's or Merger Sub's knowledge currently threatened\nagainst BC or Merger Sub that questions the validity of this Agreement or the\nright of BC or Merger Sub to enter into such agreement, or to consummate the\ntransactions contemplated hereby, or which might result, either individually or\nin the aggregate, in any material adverse change in the assets, condition,\naffairs or prospects of BC or Merger Sub, financially or otherwise, or any\nchange in the current equity \n\n                                      18\n\n\n \nownership of BC or Merger Sub, nor is BC or Merger Sub aware that there is any\nbasis for the foregoing. The foregoing includes, without limitation, actions\npending or threatened (or any basis therefor known to BC or Merger Sub)\ninvolving the prior employment of any of BC's employees, their use in connection\nwith BC's business of any information or techniques allegedly proprietary to any\nof their former employers, or their obligations under any agreements with prior\nemployers. Neither BC nor Merger Sub is a party or subject to the provisions of\nany order, writ, injunction, judgment or decree of any court or government\nagency or instrumentality. There is no action, suit, proceeding or investigation\nby BC or Merger Sub currently pending or which BC or Merger Sub intends to\ninitiate.\n\n          3.13  Tax Returns and Payments. BC has timely filed all tax returns\n                ------------------------ \n(federal, state and local) required to be filed by it. All taxes shown to be due\nand payable on such returns, any assessments imposed, and to BC's knowledge all\nother taxes due and payable by BC on or before the Closing have been paid or\nwill be paid prior to the time they become delinquent. BC has not been advised\n(i) that any of its returns, federal, state or other, have been or are being\naudited as of the date hereof, or (ii) of any deficiency in assessment or\nproposed judgment to its federal, state or other taxes. BC has no knowledge of\nany liability of any tax to be imposed upon its properties or assets as of the\ndate of this Agreement that is not adequately provided for.\n\n          3.14  Employees. BC has no collective bargaining agreements with any\n                ---------\nof its employees. There is no labor union organizing activity pending or, to\nBC's knowledge, threatened with respect to BC. No employee has any agreement or\ncontract, written or verbal, regarding his employment. To BC's knowledge, no\nemployee of BC, nor any consultant with whom BC has contracted, is in violation\nof any term of any employment contract, proprietary information agreement or any\nother agreement relating to the right of any such individual to be employed by,\nor to contract with, BC because of the nature of the business to be conducted by\nBC; and to BC's knowledge the continued employment by BC of its present\nemployees, and the performance of BC's contracts with its independent\ncontractors, will not result in any such violation. BC has not received any\nnotice alleging that any such violation has occurred. No employee of BC has been\ngranted the right to continued employment by BC or to any material compensation\nfollowing termination of employment with BC. BC is not aware that any officer or\nkey employee, or that any group of key employees, intends to terminate their\nemployment with BC, nor does BC have a present intention to terminate the\nemployment of any officer, key employee or group of key employees.\n\n          3.15  Nondisclosure and Developments Agreements. Each current employee\n                -----------------------------------------\nand officer of BC has executed, or will execute prior to or at Closing, an\nEmployee Nondisclosure and Developments Agreement in the form attached hereto as\nExhibit D. To BC's knowledge, no current employee, officer or consultant of\n---------     \nBC has excluded works or inventions made prior to his or her employment with BC\nfrom his or her assignment of inventions pursuant to such employee, officer or\nconsultant's agreement. BC, after reasonable investigation, is not aware that\nany of its employees, officers or consultants is in violation thereof and BC\nwill use its best efforts to prevent any such violation.\n\n          3.16  Registration Rights. BC is presently not under any obligation,\n                -------------------\nand has not granted any rights, to register any of BC's presently outstanding\nsecurities or any of its securities that may hereafter be issued.\n\n                                      19\n\n\n \n          3.17  Compliance with Laws; Permits. Neither BC nor Merger Sub is in\n                -----------------------------\nviolation of any applicable statute, rule, regulation, order or restriction of\nany domestic or foreign government or any instrumentality or agency thereof in\nrespect of the conduct of its business or the ownership of its properties which\nviolation would materially and adversely affect its business, assets,\nliabilities, financial condition, operations or prospects. No governmental\norders, permissions, consents, approvals or authorizations are required to be\nobtained and no registrations or declarations are required to be filed in\nconnection with the execution and delivery of this Agreement and the offer,\nissuance, sale and delivery of the BC Stock, or the other transactions to be\nconsummated at the Closing, as contemplated in this Agreement. BC and Merger Sub\nhave all franchises, permits, licenses and any similar authority necessary for\nthe conduct of its business as now being conducted by it, the lack of which,\nindividually or in the aggregate, could materially and adversely affect the\nbusiness, properties, prospects or financial condition of BC or Merger Sub and\nbelieves it can obtain, without undue burden or expense, any similar authority\nfor the conduct of its business as planned to be conducted.\n\n          3.18  Absence of Breaches or Defaults. Neither BC nor Merger Sub is\n                ------------------------------- \nand, to the knowledge of BC and Merger Sub, no other party is, in default under,\nor in breach or violation of, any material contract and no event has occurred\nwhich, with the giving of notice or passage of time or both would constitute a\ndefault under any such material contract. Other than contracts which have\nterminated or expired in accordance with their terms, each of BC's and Merger\nSub's material contracts is valid, binding and enforceable in accordance with\nits terms (subject to the effects of bankruptcy, insolvency, fraudulent\nconveyance, reorganization, moratorium and other similar laws relating to or\naffecting creditors' rights generally, general equitable principles (whether\nconsidered on a proceeding in equity or at law) and an implied covenant of good\nfaith and fair dealing) and is in full force and effect, and assuming all\nconsents required by the terms thereof or applicable law have been obtained,\nsuch contracts will continue to be valid, binding and enforceable in accordance\nwith their respective terms and in full force and effect immediately following\nthe consummation of the transactions contemplated hereby. No event has occurred\nwhich either entitles, or would, on notice or lapse of time or both, entitle the\nholder of any indebtedness for borrowed money affecting BC or Merger Sub to\naccelerate, or which does accelerate, the maturity of any indebtedness affecting\nBC or Merger Sub.\n\n          3.19  Brokers. Neither BC nor any of its officers or directors has\n                -------\nemployed any broker or finder or incurred any liability for any broker's fees,\ncommissions or finder's fees in connection with any of the transactions\ncontemplated by this Agreement.\n\n          3.20  No Misstatements. Neither this Agreement, nor any other\n                ----------------\ndocument, certificate or written statement prepared by BC or Merger Sub and\nfurnished to BuyGolf in connection herewith, contain any untrue statement of\nmaterial fact or omits to state a material fact known to BC necessary in order\nto make the statements contained herein and therein not misleading as of the\ndate thereof or hereof.\n\n          3.21  Environmental and Safety Laws. BC is not in violation of any\n                -----------------------------\napplicable statute, law or regulation relating to the environment or\noccupational health and safety, and to its knowledge, no material expenditures\nare or will be required in order to comply with any such existing statute, law\nor regulation.\n\n                                      20\n\n\n \n          3.22  Year 2000 Compliance. BC has reviewed the areas within its\n                --------------------\nbusiness and operations which could be adversely affected by Year 2000 issues\nand evaluated the costs associated with modifying and testing its systems for\nthe Year 2000. BC does not believe that the cost of Year 2000 compliance for its\ninternal information systems will be material to BC or that it will have a\nmaterial adverse effect on BC's business, financial condition or results of\noperations.\n\n          3.23  Tax-Free Organization.\n                --------------------- \n\n                (a)  Prior to the Closing, all of the shares of capital stock of\nthe Merger Sub are owned by BC.\n\n                (b)  BC has no current plan or intention to (i) reacquire any of\nthe BC Stock issued in connection with the transactions contemplated by this\nAgreement such as would result in the BuyGolf stockholders not to satisfy the\ncontinuity of interest requirements of Treasury Regulation Section 1.368-1 and\n1.368-1T; (ii) liquidate the Surviving Corporation; (iii) merge the Surviving\nCorporation with or into another entity; (iv) sell a number of shares of BuyGolf\nCommon Stock which would cause BC to no longer have control of the Surviving\nCorporation within the meaning of Section 368(c) of the Code; (v) sell or\notherwise dispose of its assets following the Closing, except in the ordinary\ncourse of business; or (vi) cause the Surviving Corporation to issue any\nadditional stock or securities in amounts which would cause BC to no longer have\ncontrol of the Surviving Corporation within the meaning of Section 368(c) of the\nCode.\n\n                (c)  Other than the five percent (5%) ownership interest in\nBuyGolf held by BC immediately prior to the Closing, BC has never owned any\nBuyGolf Common Stock.\n\n          Neither Parent nor Merger Sub is an investment company subject to\nregulation under the Investment Company Act of 1940.\n\n                                  ARTICLE IV\n                             ADDITIONAL AGREEMENTS\n                             ---------------------\n\n          4.1   Information Statement; Restricted Securities.\n                -------------------------------------------- \n \n                (a)  BC and BuyGolf shall distribute the Information Statement\nfor the stockholders of BuyGolf to approve this Agreement and the transactions\ncontemplated hereby and thereby (the \"Information Statement\"). The Information\nStatement shall constitute a disclosure document for the offer and issuance of\nthe shares of BC Stock to be received by the holders of BuyGolf Common Stock in\nthe Merger. BC and BuyGolf shall each use reasonable commercial efforts to cause\nthe Information Statement to comply with applicable federal and state securities\nlaws requirements. Each of BC and BuyGolf agrees to provide promptly to the\nother such information concerning its business and financial statements and\naffairs as, in the reasonable judgment of the providing party or its counsel,\nmay be required or appropriate for inclusion in the Information Statement, or in\nany amendments or supplements thereto, and to cause its counsel and auditors to\ncooperate with the other's counsel and auditors in the preparation of the\nInformation Statement. BuyGolf will promptly advise BC, and BC will promptly\nadvise BuyGolf, in writing if at any time prior to the Effective Time either\nBuyGolf or BC shall obtain knowledge of any facts that might make it necessary\nor appropriate to amend or \n\n                                      21\n\n\n \nsupplement the Information Statement in order to make the statements contained\nor incorporated by reference therein not misleading or to comply with applicable\nlaw. Anything to the contrary contained herein notwithstanding, BuyGolf shall\nnot include in the Information Statement any information with respect to BC or\nits affiliates or associates, the form and content of which information shall\nnot have been approved by BC prior to such inclusion.\n\n          4.2  Stockholder Approval. BuyGolf shall promptly after the date\n               -------------------- \nhereof take all action necessary in accordance with Delaware Law and its\nCertificate of Incorporation and Bylaws to secure the written consent of its\nstockholders approving this Agreement and the transactions and ancillary\nagreements contemplated herein within five (5) days following the date of this\nAgreement. BuyGolf shall use all commercially reasonable efforts required to\nobtain from stockholders of BuyGolf executed actions by written consent\napproving the Merger. Any materials submitted to the stockholders of BuyGolf in\nconnection with the solicitation of their approval of the Merger shall have been\nsubject to prior review and comment by BC and shall include information\nregarding BuyGolf, the terms of the Merger and this Agreement, the unanimous\nrecommendation of the Board of Directors of BuyGolf in favor of the Merger, this\nAgreement and the transactions contemplated hereby and such other documents\n(including but not limited to the Stockholder Certificate) in order to satisfy\nthe requirements of Section 4(2) of the Securities Act and Rule 506 of\nRegulation D promulgated thereunder in connection with the issuance and sale of\nBC Stock in the Merger.\n\n          4.3  Access to Information. Between the date of this Agreement and the\n               ---------------------\nearlier of the Effective Time or the termination of this Agreement, upon\nreasonable notice, BuyGolf and BC shall, during normal business hours, (i) give\neach other and their respective officers, employees, accountants, counsel,\nfinancing sources and other agents and representatives full access to their\nbuildings, offices, and other facilities and to all their books and records,\nwhether located on their premises or at another location; (ii) permit the other\nparty to make such inspections as they may require; (iii) cause its officers to\nfurnish the other party such financial, operating, technical and product data\nand other information with respect to the business and assets and properties of\nBuyGolf as they from time to time may request, including financial statements\nand schedules; (iv) allow each other the opportunity to interview their\nemployees and other personnel and Affiliates (as defined below) with their prior\nwritten consent, which consent shall not be unreasonably withheld or delayed;\nand (v) assist and cooperate with BC and Merger Sub in the development of\nintegration plans for implementation by BC and the Surviving Corporation\nfollowing the Effective Time; provided, however, that no investigation pursuant\nto this Section 4.3 shall affect or be deemed to modify any representation or\nwarranty made by BuyGolf and BC herein. Materials furnished to BC and BuyGolf\npursuant to this Section 4.3 may be used by each party for strategic and\nintegration planning purposes relating to accomplishing the transactions\ncontemplated hereby. For purposes of this Agreement, \"Affiliate\" means, as\n                                                      ---------\napplied to any person or entity, (a) any other person or entity directly or\nindirectly controlling, controlled by or under common control with, that person\nor entity, (b) any other person or entity that owns or controls (i) 10% or more\nof any class of equity securities of that person or entity or any of its\nAffiliates or (ii) 10% or more of any class of equity securities (including any\nequity securities issuable upon the exercise of any option or convertible\nsecurity) of that person or entity or any of its Affiliates, or (c) any\ndirector, partner, officer, manager, agent, employee or relative of such person\nor entity. For the purposes of this definition, \"control\" (including with\ncorrelative meanings, the terms \"controlling\", \"controlled by\", and \"under\ncommon control with\") as applied to any person or entity, means the possession,\ndirectly\n\n                                      22\n\n\n \nor indirectly, of the power to direct or cause the direction of the management\nand policies of that person or entity, whether through ownership of voting\nsecurities or by contract or otherwise.\n\n          4.4  Expenses. Whether or not the Merger is consummated, all fees and\n               -------- \nexpenses incurred in connection with the Merger including all legal, accounting,\nfinancial advisory, consulting and all other fees and expenses of third parties\nincurred by a party in connection with the negotiation and effectuation of the\nterms and conditions of this Agreement and the transactions contemplated hereby,\nshall be the obligation of the respective party incurring such fees and\nexpenses; provided that if the Merger is consummated, BC shall be responsible\nfor the reasonable fees and expenses of Rutan &amp; Tucker, not to exceed $20,000,\nincurred by BuyGolf in the negotiation and preparation of this Agreement and the\nconsummation of the Merger.\n\n          4.5  Public Disclosure. Unless otherwise required by law (including\n               ----------------- \nfederal and state securities laws) prior to the Effective Time (in which case BC\nand BuyGolf shall have a prior opportunity to review and comment on the proposed\ndisclosure), no disclosure (whether or not in response to any inquiry) of the\nexistence of any subject matter of, or the terms and conditions of, this\nAgreement shall be made by any party hereto unless approved by BC and BuyGolf\nprior to release; provided, however, that such approval shall not be\nunreasonably withheld or delayed.\n\n          4.6  Approvals. BuyGolf shall use all commercially reasonable efforts\n               ---------\nrequired to obtain all approvals from governmental or regulatory authorities or\nunder any of the contracts or other agreements as may be required in connection\nwith the Merger (all of such approvals are set forth in the BuyGolf Disclosure\nSchedule) so as to preserve all rights of and benefits to BuyGolf thereunder and\nBC shall provide BuyGolf with such assistance and information as is reasonably\nrequired to obtain such approvals.\n\n          4.7  Notification of Certain Matters. BuyGolf shall give prompt notice\n               -------------------------------\nto BC, and BC shall give prompt notice to BuyGolf, of (i) the occurrence or non-\noccurrence of any event, the occurrence or non-occurrence of which is likely to\ncause any representation or warranty of BuyGolf, BC or Merger Sub, respectively,\ncontained in this Agreement to be untrue or inaccurate in any material respect\nat or prior to the Closing Date and (ii) any failure of BuyGolf, BC or Merger\nSub, as the case may be, to comply with or satisfy any covenant, condition or\nagreement to be complied with or satisfied by it hereunder; provided, however,\nthat the delivery of any notice pursuant to this Section 4.7 shall not limit or\notherwise affect any remedies available to the party receiving such notice.\n\n          4.8  Additional Documents and Further Assurances. Each party hereto,\n               -------------------------------------------  \nat the request of the other party hereto, shall execute and deliver such other\ninstruments and do and perform such other acts and things (including, but not\nlimited to, all action reasonably necessary to seek and obtain any and all\nconsents and approvals of any government or regulatory authority or person\nrequired in connection with the Merger; provided, however, that BC shall not be\nobligated to consent to any divestitures or operational limitations or\nactivities in connection therewith and no party shall be obligated to make a\npayment of money as a condition to obtaining any such condition or approval) as\nmay be necessary or desirable for effecting completely the consummation of this\nAgreement and the transactions contemplated hereby.\n\n                                      23\n\n\n \n          4.9   Maintenance of Business. From the date hereof until the Closing,\n                -----------------------\neach of the Stockholders and BuyGolf shall use its diligent, good faith efforts,\nto cause BuyGolf to carry on and preserve the business, goodwill and the\nrelationships of BuyGolf with suppliers, employees, agents and others in\nsubstantially the same manner as they have been prior to the date hereof. In\naddition, from the date hereof until the Closing, BC shall use its diligent,\ngood faith efforts to carry on and preserve the business, goodwill and the\nrelationships of BC with suppliers, employees, agents and others in\nsubstantially the same manner as they have been prior to the date hereof.\n\n          4.10  Conduct of Business.\n                ------------------- \n\n                (a)  From the date hereof until the Closing, except as expressly\npermitted hereby, BuyGolf shall not, and the Stockholders shall not permit\nBuyGolf to, without BC's prior express written consent:\n\n                     (i)    incur any additional indebtedness, or guarantee any\n     indebtedness or obligation of any other party, except in the ordinary\n     course of business, and which amount BuyGolf agrees to repay immediately\n     prior to the Closing;\n\n                     (ii)   issue, redeem, pledge, sell or repurchase any\n     capital stock of BuyGolf or securities convertible into its capital stock\n     or grant or issue any options, warrants or rights to subscribe for its\n     capital stock or securities convertible into its capital stock or commit to\n     do any of the foregoing;\n\n                     (iii)  enter into or terminate any material agreement or\n     arrangement;\n\n                     (iv)   increase the compensation or bonuses payable or to\n     become payable to any officers, employees or agents of BuyGolf, or adopt or\n     amend any employee benefit plan or arrangement;\n\n                     (v)    enter into any employment contract or agreement with\n     any existing or prospective employee which is not terminable at will;\n\n                     (vi)   pay any obligation or liability, fixed or\n     contingent, other than current liabilities or except as such payment\n     becomes due;\n\n                     (vii)  cancel, without full payment, any note, loan or\nother obligation owing to BuyGolf, or waive any rights of material value;\n\n                     (viii) acquire or dispose of any properties, assets or\nbusiness except in the ordinary course of its business;\n\n                     (ix)   create or suffer to be imposed any lien, mortgage,\n     security interest or other charge on or against the properties or assets of\n     BuyGolf, other than in the ordinary course of business consistent with\n     BuyGolf's past practices, or the BuyGolf Common Stock;\n\n                                      24\n\n\n \n                    (x)    engage in any activities or transactions outside the\n     ordinary course of BuyGolf's e-commerce business as conducted at the date\n     hereof;\n\n                    (xi)   make or adopt any change in the Charter or Bylaws of\n     BuyGolf as in force and effect on the date hereof;\n\n                    (xii)  declare or pay any dividends on or make any other\n     distributions in respect of any shares of its capital stock; or\n\n                    (xiii) pay, agree to pay or make any accrual or arrangement\n     for payment of any pension, retirement allowance or other employee benefit\n     pursuant to any plan, agreement or arrangement to any officer, director or\n     employee.\n\n               (b)  From the date hereof until the Closing, except as expressly\npermitted hereby, BuyGolf shall, and the Stockholders shall cause BuyGolf to,\nunless otherwise expressly consented to in writing by BC:\n\n                    (i)    maintain the existing insurance policies of BuyGolf,\n     unless comparable insurance is substituted therefor, and shall not take any\n     action to terminate or modify those insurance policies;\n\n                    (ii)   maintain the books and records of BuyGolf consistent\n     with past practices and policies and in accordance with GAAP;\n\n                    (iii)  maintain in good working condition, ordinary wear and\n     tear excepted, and in compliance in all material respects with all\n     applicable laws and regulations, all fixed assets owned, leased or\n     operated, as the case may be, by BuyGolf;\n\n                    (iv)   observe and perform, and remain in compliance with,\n     all obligations of BuyGolf in agreements and contracts the breach or\n     violation of which would have, individually or in the aggregate, a material\n     adverse effect and not enter into any agreements or contracts which would\n     require payments by BuyGolf of more than Fifty Thousand Dollars ($50,000)\n     over any period of twelve (12) months, except for inventory purchased in\n     the ordinary course of business and disclosed in advance to BC and customer\n     contracts and purchase orders entered in the ordinary course of business\n     consistent with BuyGolf's past practices; and\n\n                    (v)    maintain compliance with the terms and conditions of\n     all material contracts or licenses held by BuyGolf or under which it\n     operates or conducts its business and use best efforts to maintain all such\n     material contracts and licenses in full force and effect.\n\n          4.11 Confidentiality. Each party will cause its directors, affiliates,\n               ---------------\nofficers, employees or authorized representatives to hold in strict confidence,\nand not disclose to any third party, without prior written consent of the other\nparty, all confidential information received by it in connection with the\ntransactions contemplated hereby, except as may be required by applicable law or\nas otherwise contemplated herein. The parties acknowledge that BC and BuyGolf\nhave previously executed a non-disclosure agreement dated August 2, 1999 (the\n\n                                      25\n\n\n \n\"Confidentiality Agreement\"), which Confidentiality Agreement shall continue in\nfull force and effect in accordance with its terms.\n\n               4.12  \"Market Stand-Off\" Agreement. Each Stockholder hereby\n                      ---------------------------\nagrees that, during the period of duration specified by BC and an underwriter of\nCommon Stock or other securities of BC, it shall not, to the extent requested by\nBC and such underwriter, directly or indirectly sell, offer to sell, contract to\nsell (including, without limitation, any short sale), grant any option to\npurchase or otherwise transfer or dispose of (other than to donees who agree to\nbe similarly bound) any securities of BC held by it at any time during such\nperiod except Common Stock included in such registration; provided, however,\nthat:\n\n                     (a)  such market stand-off time period shall not exceed 180\n                          days;\n\n                     (b)  all officers and directors of BC enter into similar\n                          agreements.\n\n               In order to enforce the foregoing covenant, BC may impose stop-\ntransfer instructions with respect to any securities of BC held by any\nStockholder or his transferee until the end of such period. If requested to do\nso by BC, each Stockholder shall execute an underwriter's letter in the\ncustomary form prior to the registration of BC's initial public offering.\n\n               4.13  BuyGolf's 1998 Stock Option Plan. At the Effective Time,\n                     --------------------------------     \nthe BuyGolf Stock Option Plan and each outstanding option to purchase shares of\nBuyGolf Common Stock under such plan, whether vested or unvested, will be\nassumed by BC and any outstanding repurchase rights shall be assigned to BC.\nSection 4.13 of the BuyGolf Disclosure Schedule sets forth a true and complete\nlist as of the date hereof of all holders of outstanding options under the\nBuyGolf Stock Option Plan including the number of shares of BuyGolf Common Stock\nsubject to each such option, the date of grant of each such option, the exercise\nor vesting schedule, the exercise price per share and the term of each such\noption. On the Closing Date, BuyGolf shall deliver to BC an updated Section 4.13\nof the BuyGolf Disclosure Schedule current as of such date. Each such option so\nassumed by BC under this Agreement shall continue to have, and be subject to,\nthe same terms and conditions set forth in the BuyGolf Stock Option Plan\nimmediately prior to the Effective Time, except that (i) such option will be\nexercisable for that number of whole shares of BC Stock equal to the product of\nthe number of shares of BuyGolf Common Stock that were issuable upon exercise of\nsuch option immediately prior to the Effective Time multiplied by the Exchange\nRatio and rounded down to the nearest whole number of shares of BC Stock, and\n(ii) the per share exercise price for the shares of BC Stock issuable upon\nexercise of such assumed option will be equal to the quotient determined by\ndividing the exercise price per share of BuyGolf Common Stock at which such\noption was exercisable immediately prior to the Effective Time by the Exchange\nRatio, rounded up to the nearest whole cent. Consistent with the terms of the\nBuyGolf Stock Option Plan and the documents governing the outstanding options\nunder such plan, the Merger will not terminate any of the outstanding options\nunder the BuyGolf Stock Option Plan or accelerate the exercisability or vesting\nof such options. It is the intention of the parties that the options so assumed\nby BC qualify following the Effective Time as incentive stock options as defined\nin Section 422 of the Code to the extent such options qualified as incentive\nstock options prior to the Effective Time. Within ten (10) business days after\nthe Effective Time, BC will issue to each person who, immediately prior to the\nEffective Time was a holder of an outstanding option under the BuyGolf Stock\nOption Plan a\n\n                                      26\n\n\n \ndocument in form and substance satisfactory to BuyGolf evidencing the foregoing\nassumption of such option by BC.\n\n               4.14  Necessary Filings. BC, Merger Sub, and each of the\n                     -----------------\nStockholders of BuyGolf shall use all commercially reasonable efforts to\npromptly make all necessary filings required by the Internal Revenue Code or\notherwise and to take any reasonable actions to cause the Merger to be treated\nas a \"tax-free\" organization under the Internal Revenue Code.\n\n                                   ARTICLE V\n                            CONDITIONS PRECEDENT TO\n                            -----------------------\n                       OBLIGATIONS OF BC AND MERGER SUB\n                       --------------------------------\n\n\n               The obligation of each of BC and Merger Sub to consummate the\ntransactions contemplated by this Agreement is subject to the satisfaction, at\nor before the Closing, of all the following conditions, unless waived in writing\nby BC:\n\n               5.1  Certificates for BuyGolf Common Stock. BC shall have\n                    -------------------------------------\nreceived for cancellation in the Merger certificates for the BuyGolf Common\nStock, which shall constitute all of the issued and outstanding capital stock of\nBuyGolf.\n\n               5.2  Representations and Warranties True. All representations and\n                    -----------------------------------\nwarranties of the Stockholders and BuyGolf in this Agreement or the Schedules\nand Exhibits hereto, or in any written statement or certificate that shall be\ndelivered to BC by the Stockholders or BuyGolf under this Agreement, shall be\ntrue and correct on and as of the date made and as of the Closing Date as if\nmade on the date thereof (except to the extent such representation or warranty\nrelates to an earlier date).\n\n               5.3  Covenants Performed. The Stockholders and BuyGolf shall have\n                    -------------------\nperformed, satisfied, and complied in all material respects with all covenants,\nagreements, and conditions required by this Agreement to be performed or\ncomplied with by the Stockholders and BuyGolf on or before the Closing Date.\n\n               5.4  Certificate. BC shall have received from the Stockholders a\n                    -----------\ncertificate signed by the President of BuyGolf, dated the Closing Date,\ncertifying that the conditions specified in this Article V have been satisfied.\n\n               5.5  No Violations; No Actions. Consummation of the transactions\n                    -------------------------\ncontemplated by this Agreement shall not violate any order, decree or judgment\nof any court or governmental body having competent jurisdiction and no action or\nproceeding shall have been instituted or threatened by any person, entity or\ngovernmental agency which, in any such case, in the sole judgment of BC, has a\nreasonable probability of resulting in (i) the obtaining of material damages\nfrom BC or BuyGolf; (ii) an order, judgment or decree restraining, prohibiting\nor rendering unlawful the consummation of the transactions contemplated by this\nAgreement; or (iii) other relief in connection therewith.\n\n               5.6  Proceedings and Documents. All corporate and other\n                    -------------------------\nproceedings in connection with the transactions contemplated hereby and all\ndocuments and instruments incident to such transactions shall be in form and\nsubstance reasonably satisfactory to BC and its \n\n                                      27\n\n\n \ncounsel, and BC shall have received all such counterpart originals or certified\nor other copies of such documents as it may reasonably request.\n\n               5.7   Delivery of Documents. shall have received all documents\n                     ---------------------\nand other items to be delivered by the Stockholders under Section 7.2.\n\n               5.8   Required Consents. All consents, approvals and waivers from\n                     -----------------\nthird parties and governmental authorities necessary to the transactions as\ncontemplated by this Agreement.\n\n               5.9   Private Placement. The parties shall be reasonably\n                     -----------------\nsatisfied that the shares of BC Stock to be issued in connection with the Merger\npursuant to Section 1.6(a) are issuable without registration pursuant to Section\n4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.\n\n               5.10  Tax-Free Reorganization. The Merger will constitute a tax-\n                     -----------------------\nfree reorganization within the meaning of Section 368(a) of the Internal Revenue\nCode \n\n               5.11  Limitation on D issent. No holders of the outstanding\n                     ---------------------- \nshares of BuyGolf Common Stock shall have exercised, nor shall they have any\ncontinued right to exercise, appraisal, dissenters' or similar rights under\napplicable law with respect to their shares by virtue of the Merger.\n\n                                  ARTICLE VI\n                            CONDITIONS PRECEDENT TO\n                            -----------------------\n\n                  OBLIGATIONS OF BUYGOLF AND THE STOCKHOLDERS\n                  -------------------------------------------\n\n               The obligation of the Stockholders to consummate the transactions\ncontemplated by this Agreement is subject to BC's and\/or Merger Sub's\nsatisfaction, at or before the Closing, of all the following conditions, unless\nwaived in writing by a majority in interest of the Stockholders:\n     \n               6.1   Representations and Warranties True. All representations\n                     -----------------------------------\nand warranties by BC and Merger Sub in this Agreement or the Schedules and\nExhibits hereto, or in any written statement or certificate that shall be\ndelivered to the Stockholders by BC under this Agreement, shall be true and\ncorrect on and as of the date made and as of the Closing Date as if made on the\ndate thereof (except to the extent such representation or warranty relates to an\nearlier date).\n\n               6.2   Covenants Performed. BC and Merger Sub shall have\n                     -------------------\nperformed, satisfied, and complied in all material respects with all covenants,\nagreements, and conditions required by this Agreement to be performed or\ncomplied with by BC and Merger Sub in all material respects on or before the\nClosing Date.\n\n               6.3   Certificate. The Stockholders shall have received from BC a\n                     -----------\ncertificate signed by the Chief Executive Officer of BC, dated the Closing Date,\ncertifying that the conditions specified in this Article VI have been satisfied.\n\n               6.4   No Violations; No Actions. Consummation of the transactions\n                     -------------------------\ncontemplated by this Agreement shall not violate any order, decree or judgment\nof any court or governmental body having competent jurisdiction and no action or\nproceeding shall have been\n\n                                      28\n\n\n \ninstituted or threatened by any person, entity or governmental agency which, in\nany such case, in the sole judgment of the Stockholders, has a reasonable\nprobability of resulting in (i) the obtaining of material damages from the\nStockholders or BC, (ii) an order, judgment or decree restraining, prohibiting\nor rendering unlawful the consummation of the transactions contemplated by this\nAgreement, or (iii) other relief in connection therewith.\n\n               6.5   Proceedings and Documents. All corporate and other\n                     -------------------------\nproceedings in connection with the transactions contemplated hereby and all\ndocuments and instruments incident to such transactions shall be in form and\nsubstance reasonably satisfactory to the Stockholders and their counsel, and the\nStockholders shall have received all such counterpart originals or certified or\nother copies of such documents as they may reasonably request.\n\n               6.6   Delivery of Documents. The Stockholders shall have received\n                     ---------------------\nall documents and other items to be delivered by BC under Section 7.3.\n\n               6.7   Required Consents. All consents, approvals and waivers from\n                     -----------------\nthird parties and governmental authorities necessary to consummate the\ntransactions contemplated by this Agreement shall have been obtained.\n\n                                  ARTICLE VII\n                                    CLOSING\n                                    -------\n\n               7.1   Time and Place. The Closing shall occur at the time and\n                     --------------\nplace specified in Section 1.2 of this Agreement.\n\n               7.2   Deliveries of the Stockholders. At the Closing, the\n                     ------------------------------ \nStockholders will execute and deliver or cause to be executed and delivered to\nBC:\n\n                     (a)  Stock Certificates. Certificates representing the\n                          ------------------  \nBuyGolf Common Stock, presented to BC for conversion into BC Stock;\n\n                     (b)  Corporate Documents. The Charter of BuyGolf, certified\n                          -------------------\nby the Secretary of State of Delaware as of a recent date and the Bylaws of\nBuyGolf, certified by the Secretary of BuyGolf as in effect at the Closing;\n\n                     (c)  Certificates of Good Standing. Certificates of Good\n                          -----------------------------\nStanding, dated as of a recent date, with respect to BuyGolf, issued by the\nSecretary of State of California and Delaware;\n\n                     (d)  The Stockholders' Certificate. A certificate from the\n                          -----------------------------\nStockholders, dated the Closing Date, containing the information required\npursuant to Section 5.4;\n\n                     (e)  Representations and Warranties; Performance. At the\n                          -------------------------------------------\nClosing, Stockholders shall deliver to BC a certificate dated as of the Closing\nDate signed by the President of BuyGolf certifying (i) that each of the\nrepresentations and warranties made by the Stockholders herein are true and\ncorrect in all material respects on the Closing Date with the same effect as\nthough made on such date; (ii) that BuyGolf and the Stockholders have performed\nand complied with all agreements, covenants and conditions required by this\nAgreement to be performed and complied with by BuyGolf and the Stockholders\nprior to the Closing Date; and\n\n                                      29\n\n\n \n(iii) that there has been no material adverse change since the Balance Sheet\nDate in the business, condition (financial or otherwise) or operations of\nBuyGolf or its assets;\n\n                     (f)  Books and Records. At the Closing, the Stockholders\n                          -----------------\nshall deliver to BC (i) the stock books, minute books, corporate seals and other\ncorporate record-keeping documentation of BuyGolf; (ii) certificates\nrepresenting all outstanding BuyGolf Common Stock, free of any restrictive\nlegends, except for transfer restrictions which may be imposed by the Securities\nAct, all stock certificates to be duly endorsed and guaranteed for transfer to\nBC; (iii) such other instruments of transfer as in the opinion of BC's counsel\nshall be necessary or desirable to effectively vest in BC good and marketable\ntitle to the BuyGolf Common Stock; and (iv) all other opinions, instruments and\ndocuments contemplated by this Agreement;\n\n                     (g)  Release of Claims. At the Closing, each Stockholder\n                          -----------------\nand optionholder shall sign and deliver to BC a certificate of release\n(\"Release\") of all claims or rights of such Stockholder against BuyGolf, except\n  -------\nfor claims or rights arising pursuant to the agreements and documents executed\nand delivered in connection with the transactions contemplated herein, in the\nform attached hereto as Exhibit E;\n                        ---------  \n\n                     (h)  Board and Stockholder Approval. At the Closing,\n                          ------------------------------\nStockholders shall deliver to BC evidence that this Agreement and the\ntransactions contemplated hereby have been approved by BuyGolf's Board of\nDirectors and, if such approval is required under applicable law, BuyGolf's\nStockholders in form reasonably acceptable to BC's counsel;\n\n                     (i)  Resignation of Directors and Officers. At the Closing,\n                          -------------------------------------\nthe directors and officers of BuyGolf in office immediately prior to the Closing\nshall resign as directors and officers of BuyGolf effective immediately\nfollowing the Closing;\n\n                     (j)  Termination of Employment Agreements. Prior to or at\n                          ------------------------------------ \nthe Closing, BuyGolf shall have terminated the employment agreements and\nStockholder agreements with John Gilles, Greg Van Ginkel, Arti Dua, Steve Jess,\nBradley O'Hearne, Jack Souders, Lucy Wojskowicz, Miriam Price, Lori Stewart,\nMark Brown, Jeffrey Allen, C. Keith Allen, Steve Davis, and Donald Harris;\n\n                     (k)  Termination of Agreements with Ingram. Prior to or at\n                          -------------------------------------\nthe Closing, BuyGolf and Ingram Entertainment Holdings, Inc. shall have\nterminated that certain Common Stock Purchase Agreement, Voting Agreement and\nRegistration Rights Agreement, each dated August 5, 1999.\n\n                     (l)  Stock Restriction Agreement. A Stock Restriction\n                          ---------------------------\nAgreement, substantially in the form attached hereto as Exhibit F, shall have\n                                                        ---------  \nbeen executed and delivered by the parties named therein;\n\n                     (m)  Non-Competition Agreement. A Non-Competition\nAgreement, substantially in the form attached hereto as Exhibit G, shall have\n                                                        ---------\nbeen executed and delivered by the parties named therein;\n\n                     (n)  Proceedings and Documents. All corporate and other\n                          -------------------------\nproceedings in connection with the transactions contemplated at the Closing\nhereby, all documents and instruments incident to such transactions and all\ndocuments, instruments and proceedings related\n\n                                      30\n\n\n \nto BuyGolf's business, technical and legal due diligence shall be reasonably\nsatisfactory in substance and form to BC and its counsel, and BC and its counsel\nshall have received all such counterpart originals or certified or other copies\nof such documents as they may reasonably request;\n\n                     (o)  Consents, Permits and Waivers. BuyGolf shall have\n                          -----------------------------    \nobtained any and all consents, permits and waivers necessary or appropriate for\nconsummation of the transactions contemplated by the Agreement;\n\n                     (p)  Non-Disclosure Agreements. Non-disclosure agreements\n                          -------------------------\nbetween Merger Sub, on the one hand, and any person who accepts employment with\nthe Surviving Corporation as of the Closing on the other hand, substantially in\nthe form of Exhibit H attached hereto;\n            ---------        \n\n                     (q)  Option Assumption Agreements. An Option Assumption\n                          ----------------------------\nAgreement, substantially in the form attached hereto as Exhibit I, shall have\n                                                        ---------\nbeen executed and delivered by each optionholder listed on Schedule B hereto;\n                                                           ----------\n\n                     (r)  Optionholder Questionnaire. An Optionholder\n                          --------------------------\nQuestionnaire, substantially in the form attached hereto as Exhibit J shall have\n                                                            --------- \nbeen completed, executed and delivered by each optionholder listed on Schedule B\n                                                                      ----------\nhereto; and\n\n                     (s)  Other Documents. Such other documents and instruments\n                          ---------------\nas BC or its counsel reasonably shall deem necessary to consummate the\ntransactions contemplated hereby.\n\n               All documents delivered to BC shall be in form and substance\nreasonably satisfactory to BC and its counsel.\n\n               7.3   Deliveries of BC. At the Closing, BC and\/or Merger Sub will\n                     ----------------\nexecute and deliver or cause to be executed and delivered to the Stockholders\nsimultaneously with delivery of the items referred to in Section 7.2 above:\n\n                     (a)  BC Stock. Certificates representing the BC Stock to\n                          --------\neach Stockholder as set forth on Schedule A, issuable in accordance with Article\n                                 ----------  \nI hereof;\n\n                     (b)  Representations and Warranties; Performance. At the\n                          ------------------------------\nClosing, BC shall deliver to Stockholders a certificate dated as of the Closing\nDate signed by the Chief Executive Officer of BC certifying (i) that each of the\nrepresentations and warranties made by BC herein are true and correct in all\nmaterial respects on the Closing Date with the same effect as though made on\nsuch date; and (ii) that BC has performed and complied with all agreements,\ncovenants and conditions required by this Agreements to be performed and\ncomplied with by BC prior to the Closing Date;\n\n                     (c)  Board Approval. At the Closing, BC shall deliver to\n                          --------------\nStockholders evidence that this Agreement and the transactions contemplated\nhereby shall have been approved by the BC's Board of Directors;\n\n                                      31\n\n\n \n                     (d)  Consents, Permits and Waivers. BC shall have obtained\n                          -----------------------------\nany and all consents, permits and waivers necessary or appropriate for\nconsummation of the transactions contemplated by the Agreement;\n\n                     (e)  Corporate Documents. The Amended and Restated\n                          -------------------\nCertificate of Incorporation of BC and the Certificate of Incorporation of\nMerger Sub, certified by the Secretary of State of Delaware as of a recent date\nand the Bylaws of BC and Merger Sub, certified by the secretaries of BC and\nMerger Sub, respectively, as in effect at the Closing; and\n\n                     (f)  Officer's Certificate. A certificate dated the Closing\n                          ---------------------\nDate containing the information required pursuant to Section 6.3.\n\n               All documents delivered to the Stockholders shall be in form and\nsubstance reasonably satisfactory to the Stockholders and their counsel.\n\n               7.4   Certificate of Merger. At the Closing, the parties hereto\n                     ---------------------    \nshall cause to filed the Certificate of Merger with the Delaware Secretary of\nState in accordance with the Delaware Law.\n\n\n                                 ARTICLE VIII\n                                INDEMNIFICATION\n                                ---------------\n\n               8.1   Indemnification by the Stockholders. The Stockholders shall\n                     -----------------------------------\njointly and severally indemnify and hold harmless BC, Merger Sub and the\nSurviving Corporation and their respective officers, directors, employees,\nsuccessors and assigns in respect of any and all claims, actions, suits or other\nproceedings and any and all losses, costs, expenses, liabilities, fines,\npenalties, interest, and damages, whether or not arising out of any claim,\naction, suit or other proceeding (and including reasonable counsel and\naccountants' fees and expenses and all other reasonable costs and expenses of\ninvestigation, defense or settlement of claims and amounts paid in settlement)\nincurred by, imposed on or borne by BC, Merger Sub, the Surviving Corporation or\nsuch other parties (collectively \"Damages\") resulting from the breach of any of\n                                  -------  \nthe representations or warranties made by the Stockholders or BuyGolf in this\nAgreement. Notwithstanding the foregoing, each Stockholder's liability for\nDamages shall be determined by, and shall not exceed, each Stockholder's\npercentage ownership of BuyGolf held by the Stockholders immediately prior to\nthe Closing. For example, in the event Damages totaled $10,000,000, a\nStockholder that owns ten percent (10%) of BuyGolf prior to the Closing shall be\nliable for no more than $1,000,000 of the Damages.\n\n               8.2   Indemnification by BC, Merger Sub and Surviving\n                     -----------------------------------------------    \nCorporation. Each of BC, Merger Sub and the Surviving Corporation, jointly and\n----------- \nseverally, shall indemnify and hold harmless the Stockholders, in respect of any\nand all claims, actions, suits or other proceedings and any and all losses,\ncosts, expenses, liabilities, fines, penalties, interest, and damages, whether\nor not arising out of any claim, action, suit or other proceeding (and including\nreasonable counsel and accountants' fees and expenses and all other reasonable\ncosts and expenses of investigation, defense or settlement of claims and amounts\npaid in settlement) incurred by, imposed on or borne by the Stockholders\nresulting from the breach of any of the representations, warranties or\nagreements made by BC and Merger Sub in this Agreement.\n\n                                      32\n\n\n \n               8.3  Indemnification Procedure for Claims. Whenever any claim\n                    ------------------------------------ \nshall arise for indemnification hereunder, the party entitled to indemnification\n(the \"indemnified party\") shall promptly notify in writing the other party or\n      -----------------    \nparties (the \"indemnifying party\") of the claim and, when known, the facts\n              ------------------ \nconstituting the basis for such claim; provided, that the indemnified party's\nfailure to give such written notice shall not affect any rights or remedies of\nan indemnified party hereunder with respect to indemnification for damages\nexcept to the extent that the indemnifying party is materially prejudiced\nthereby. In the event of any claim for indemnification hereunder resulting from\nor in connection with any claim or legal proceedings by a third party, the\nwritten notice to the indemnifying party shall specify, if known, the amount or\nan estimate of the amount of the liability arising therefrom. The indemnified\nparty shall not settle or compromise any claim by a third party for which it is\nentitled to indemnification hereunder, without the prior written consent of the\nindemnifying party (which shall not be unreasonably withheld), unless suit shall\nhave been instituted against it and the indemnifying party shall not have taken\ncontrol of and conducted in a diligent manner the defense of such suit after\nnotification thereof as provided in Section 8.4 of this Agreement.\n\n               8.4  Defense by Indemnifying Party. In connection with any claim\n                    -----------------------------\ngiving rise to indemnity hereunder or resulting from or arising out of any claim\nor legal proceeding by a person who is not a party to this Agreement, the\nindemnifying party at its sole cost and expense may, upon written notice to the\nindemnified party, assume the defense of any such claim or legal proceeding if\nit acknowledges to the indemnified party in writing its obligations to indemnify\nthe indemnified party with respect to all elements of such claim, and thereafter\ndiligently conducts the defense thereof with counsel reasonably acceptable to\nthe indemnified party. If the indemnifying party acknowledges in writing as\nspecified above that it shall assume the defense of any such action, then the\nindemnifying party shall keep the indemnified party informed with respect to the\ndefense of such action and the indemnified party shall be entitled to\nparticipate in (but not control) the defense of such action, with its counsel\nand at its own expense. If (A) the indemnifying party does not acknowledge in\nwriting as specified above that it shall assume or fails to conduct in a\ndiligent manner the defense of any such claim or litigation resulting therefrom,\nor (B) the indemnified party shall have reasonably concluded that there may be\none or more legal defenses available to it which are different from, or,\nadditional to those available to the indemnifying party or other indemnified\nparties with respect to such claim or litigation, then, (i) the indemnified\nparty may defend against such claim or litigation, in such manner as it may deem\nappropriate, including, without limitation, settling such claim or litigation,\nafter giving notice of the same to the indemnifying party, on such terms as the\nindemnified party may deem appropriate, and (ii) the indemnifying party shall be\nentitled to participate in (but not control) the defense of such action, with\nits counsel and at its own expense. If the indemnifying party thereafter seeks\nto question the manner in which the indemnified party defended such third party\nclaim or the amount or nature of any such settlement, the indemnifying party\nshall have the burden to prove by a preponderance of the evidence that the\nindemnified party did not defend or settle such third party claim in a\nreasonably prudent manner. Each party agrees to cooperate fully with the other,\nsuch cooperation to include, without limitation, attendance at depositions and\nthe provisions of relevant documents as may be reasonably requested by the\nindemnifying party; provided, that the indemnifying party will hold the\nindemnified party harmless from all of its expenses, including reasonable\nattorneys' fees, incurred in connection with such cooperation by the indemnified\nparty.\n\n                                      33\n\n\n \n               8.5  Arbitration. The rights of the indemnified party to\n                    -----------\nindemnification and the estimated amount thereof, as set forth in the notice,\nshall be deemed objected to by the indemnifying party unless the indemnifying\nparty notified the indemnified party in writing as specified in Section 8.4\nabove that the indemnifying party accepts and agrees with the right of the\nindemnified party to indemnification or that the indemnifying party elects to\ndefend such claim. If the claim to indemnification is deemed objected to, the\nparties shall attempt to settle and compromise the same, or if unable to do so\nwithin sixty (60) days of receipt of the notice of the claim, such dispute shall\nbe submitted to and resolved by prompt binding arbitration in a mutually agreed\nlocation or, absent agreement in Orange County, California, and any rights of\nindemnification established by reason of such settlement, compromise or\narbitration shall promptly thereafter be paid and satisfied by the indemnifying\nparty. Arbitration shall be final and binding according to the Commercial\nArbitration Rules of the American Arbitration Association, and judgment upon the\naward rendered by the arbitrator(s) may be entered in any state or federal court\nin Orange County, California.\n\n               8.6  Limits on Indemnification.\n                    ------------------------- \n\n                    (a)  Notwithstanding any provision of this Agreement to the\ncontrary, the Stockholders shall have no obligation to indemnify any person\nentitled to indemnity under Section 8.1 unless the persons so entitled to\nindemnity thereunder have suffered Damages in an aggregate amount in excess of\nTwenty Five Thousand Dollars ($25,000) and then only to the extent of such\nexcess and (ii) the Stockholders' liability under Section 8.1 shall in no event\nexceed Ten Million Dollars ($10,000,000);\n\n                    (b)  Notwithstanding any provision of this Agreement to the\ncontrary, BC shall have no obligation to indemnify any person entitled to\nindemnity under Section 8.2, (i) unless the persons so entitled to indemnity\nthereunder have suffered Damages in an aggregate amount in excess of Twenty Five\nThousand Dollars ($25,000) and then only to the extent of such excess and (ii)\nBC's liability under Section 8.2 shall in no event exceed Ten Million Dollars\n($10,000,000).\n\n                                  ARTICLE IX\n                              GENERAL PROVISIONS\n                              ------------------\n\n               9.1  Survival of Representations, Warranties and Agreements. All\n                    ------------------------------------------------------  \nrepresentations, warranties, covenants and agreements in this Agreement or in\nany instrument delivered pursuant to this Agreement shall survive the Closing\nand shall terminate twenty-four (24) months after the Closing Date. No claim or\naction for indemnity pursuant to Sections 8.1 or 8.2 hereof shall be asserted or\nmaintained by any party hereto after the second anniversary of the Closing Date,\nexcept for claims made in writing prior to such date and actions (whether\nconstituted before or after such date) based on any claim made in writing prior\nto such date. Each party agrees that, except for the representations and\nwarranties contained in this Agreement and BC Disclosure Schedule and the\nBuyGolf Disclosure Schedule, no party hereto has made any other representations\nand warranties, and each party hereby disclaims any other representations and\nwarranties made by itself or any of its officers, directors, employees, agents,\nfinancial and legal advisors or other representatives, with respect to execution\nand delivery of this Agreement or the transactions contemplated herein,\nnotwithstanding the delivery or\n\n                                      34\n\n\n \ndisclosure to any other party or any party's representatives of any\ndocumentation or other information with respect to any one or more of the\nforegoing.\n\n               9.2  Notices. All notices and other communications hereunder\n                    -------\nshall be in writing and shall be deemed given if delivered personally,\ntelecopied (with confirmation), mailed by registered or certified mail (return\nreceipt requested) or delivered by an express courier (with confirmation) to the\nparties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n\n                          (a)     if to BC, to:\n \n                                  BUY.COM INC.\n                                  21 Brookline\n                                  Aliso Viejo, California 92656\n                                  Attention:  Gregory Hawkins\n\n                                  with a copy to:\n \n                                  Brobeck, Phleger &amp; Harrison LLP\n                                  38 Technology Drive\n                                  Irvine, California 92618\n                                  Attention:  Bruce R. Hallett, Esq.\n     \n                                  and\n\n                          (b)     if to BuyGolf, or the Stockholders, to:\n \n                                  BuyGolf, Com Inc.\n                                  1705 South Coast Highway\n                                  Laguna Beach, California 92651\n                                  Attention:  Bradford W. Allen\n\n                                  with a copy to:\n \n                                  Rutan &amp; Tucker\n                                  611 Anton Boulevard\n                                  Suite 1400\n                                  Costa Mesa, California 92626\n                                  Attention:  Natalie Sibbald Dundas, Esq.\n\n               9.3  Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND\n                    -------------\nCONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA\n(WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES OTHER THAN THOSE DIRECTING\nCALIFORNIA LAW) EXCEPT TO THE EXTENT MANDATORILY GOVERNED BY THE LAWS OF THE\nSTATE OF DELAWARE. BC AND EACH OF THE STOCKHOLDERS HEREBY IRREVOCABLY SUBMITS TO\nTHE JURISDICTION OF ANY CALIFORNIA STATE OR FEDERAL COURT SITTING IN ORANGE\nCOUNTY, CALIFORNIA, IN ANY ACTION OR PROCEEDING ARISING OUT\n\n                                      35\n\n\n \nOF OR RELATING TO THIS AGREEMENT, AND BUYER AND THE STOCKHOLDERS EACH HEREBY\nIRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY\nBE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR SUCH FEDERAL COURT. BC\nAND THE STOCKHOLDERS EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT\nMAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE\nOF SUCH ACTION OR PROCEEDING.\n\n          EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY\nIN ANY PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF\nOR RELATING TO THIS AGREEMENT OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED\nHEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION,\nPERFORMANCE OR ENFORCEMENT HEREOF.\n\n          9.4  Severability. If any term or other provision of this Agreement is\n               ------------\ninvalid, illegal or incapable of being enforced by any rule of law or public\npolicy, all other conditions and provisions of this Agreement shall nevertheless\nremain in full force and effect. Upon such determination that any term or other\nprovision is invalid, illegal or incapable of being enforced, the parties hereto\nshall negotiate in good faith to modify this Agreement so as to effect the\noriginal intent of the parties as closely as possible in a mutually acceptable\nmanner to the fullest extent permitted by applicable law in order that the\nMerger may be consummated as originally contemplated to the fullest extent\npossible.\n\n          9.5  Assignment; Binding Effect; Benefit. Neither this Agreement nor\n               ----------------------------------- \nany of the rights, interests or obligations hereunder shall be assigned by any\nof the parties hereto (whether by operation of law or otherwise) without the\nprior written consent of the other parties hereto. Subject to the preceding\nsentence, this Agreement shall be binding upon and shall inure to the benefit of\nthe parties hereto and their respective successors and permitted assigns.\nNotwithstanding anything contained in this Agreement to the contrary, nothing in\nthis Agreement, expressed or implied, is intended to confer on any person other\nthan the parties hereto or their respective successors and permitted assigns any\nrights or remedies under or by reason of this Agreement.\n\n          9.6  Headings. The descriptive headings contained in this Agreement\n               -------- \nare included for convenience of reference only and shall not affect in any way\n the meaning or interpretation of this Agreement.\n\n          9.7  Entire Agreement. This Agreement (including the Exhibits, the BC\n               ----------------\nDisclosure Schedule and the BuyGolf Disclosure Schedule and other Schedules\nreferenced herein) constitute the entire agreement among the parties with\nrespect to the subject matter hereof and supersede all prior agreements and\nunderstandings among the parties with respect thereto. No addition to or\nmodification of any provision of this Agreement shall be binding upon any party\nhereto unless made in writing and signed by all parties hereto.\n\n                                      36\n\n\n \n          9.8   Counterparts. This Agreement may be executed in one or more\n                ------------\ncounterparts, and by the different parties hereto in separate counterparts, each\nof which when executed shall be deemed to be an original but all of which taken\ntogether shall constitute one and the same agreement. Execution and delivery of\nthis Agreement by exchange of facsimile copies bearing the facsimile signature\nof a party hereto shall constitute a valid and binding execution and delivery of\nthis Agreement by such party.\n\n          9.9   Waivers. No waiver of any of the provisions of this Agreement\n                ------- \nshall be deemed, or shall constitute, a waiver of any other provisions, whether\nor not similar, nor shall any waiver constitute a continuing waiver. No waiver\nshall be binding unless executed in writing by the party making the waiver.\n\n          9.10  Third Parties. Nothing in this Agreement, whether express or\n                -------------\nimplied, is intended to confer any rights or remedies under or by reason of this\nAgreement on any persons other than the parties to it and their respective\nsuccessors and assigns, nor is anything in this Agreement intended to relieve or\ndischarge the obligation or liability of any third person to any party to this\nAgreement, nor shall any provision give any third persons any right of\nsubrogation or action over against any party to this Agreement.\n\n          9.11  Publicity. None of the Stockholders or BuyGolf shall issue or\n                ---------\nmake, or cause to have issued or made, any press release or announcement\nconcerning, or otherwise disclose to any third person, the terms of the\ntransactions contemplated hereby (including the existence of the transactions\ncontemplated hereby) without the advance approval in writing of the form and\nsubstance thereof by BC, unless otherwise required by applicable law, it being\nunderstood that the Stockholders and BuyGolf will use their best efforts not to\ndisclose the terms or existence of the transaction prior to the Closing.\nFurther, prior to and following the Closing none of the parties shall disclose\nthe material terms of this Agreement to any third party other than a third party\nwhich must have such information in rendering financial, business, legal or tax\nadvice to such party, as required by law or regulatory authority, or with the\nwritten consent (not, following the Closing, to be unreasonably withheld) of\neach other party hereto.\n\n          9.12  Schedules. All schedules, exhibits, appendices and documents\n                ---------\nreferred to in or attached to this Agreement are integral parts of this\nAgreement as if fully set forth herein, and all statements appearing therein\nshall be deemed disclosed for all purposes, and not only in connection with the\nspecific representation to which they are explicitly referenced.\n\n                          [Signature page to follow]\n\n                                      37\n\n\n \n          IN WITNESS WHEREOF, the parties have caused this Agreement to be\nexecuted and delivered by their respective officers thereunto duly authorized,\nall as of the date first written above.\n\n\nBC:                                        BUYGOLF:\n\n\nBUY.COM INC.                               BUYGOLF.COM INC.\n \n \nBy:______________________________          By:_______________________________\n  Name:  Gregory Hawkins                      Name:  Bradford W. Allen\n  Title: Chief Executive Officer              Title: Chief Executive Officer\n\n\nSTOCKHOLDERS:\n\n\nBradford W. Allen                          Scott A. Blum\n \n \nBy:______________________________          By:_______________________________\n\n\nThomas Monaco                              Joseph and April Kramer\n \n \nBy:______________________________          By:_______________________________\n\n\nSinocorp Investment Ltd.                   Las Vegas Golf &amp; Tennis, Inc.\n \n \nBy:______________________________          By:_______________________________\n   Name:                                      Name:\n   Title:                                     Title:\n\n\nWait 1999 Long-Term Trust                  Ingram Entertainment Holdings Inc.\n \n \nBy:______________________________          By:_______________________________\n   Name:  Younghee Waite                      Name:\n   Title: Trustee                             Title:\n\n\n\n          SIGNATURE PAGE  FOR AGREEMENT AND PLAN OF MERGER AND REORGANIZATION\n\n                                      38\n     \n\n\n \n                                  SCHEDULE A\n\n\n                           SCHEDULE OF STOCKHOLDERS\n                           ------------------------\n\n<table> \n \n<caption>                                                              Aggregate BUY.COM  \n                                                 Number of             Shares to be Issued and\n              Stockholder                    Shares of BuyGolf\/1\/       Delivered at Closing \n------------------------------------   --------------------------- --------------------------\n                                    \n<c>                         \n<c> \nBradford W. Allen                               5,188,219                    2,697,874                    \n                                                                                                          \nThomas Monaco                                     200,000                      104,000                    \n                                                                                                          \nJoseph and April Kramer                           400,000                      208,000                    \n                                                                                                          \nSinocorp Investment Ltd.                          400,000                      208,000                    \n                                                                                                          \nLas Vegas Golf &amp; Tennis, Inc.                     540,000                      280,800                    \n                                                                                                          \nScott A. Blum                                     400,000                      208,000                    \n                                                                                                          \nYounghee Wait, Trustee of the Wait 1999           400,000                      208,000                    \nLong-term Trust                                                                                          \n                                                                                                          \nIngram Entertainment Inc.                         438,947                      228,253 \n                                       --------------------------- --------------------------   \n     Total:                                     7,967,166                    4,142,927\n\n      Exchange Ratio: 0.520\n\n<\/c><\/c><\/caption><\/table> \n\n\n\n______________________\n\n     \/1\/ Buy.Com Inc. has a five percent (5%) ownership interest in BuyGolf\n         prior to the Merger.\n\n\n \n                                  SCHEDULE B\n\n\n                           SCHEDULE OF OPTIONHOLDERS\n                           -------------------------\n                                                     Aggregate BUY.COM Options \n                                 Number of          to be Issued Upon the \n                               BuyGolf Shares       Assumption and Replacement\n         Optionholders        Subject to Options    of the BuyGolf Options\n------------------------- ----------------------- ----------------------------\n \nDon Harris                        200,000                    104,000            \n                                                                                \nKeith Allen                       160,000                     83,200            \n                                                                                \nLucy Wojskowicz                    20,000                     10,400            \n                                                                                \nJack Souders                       35,000                     18,200            \n                                                                                \nSteve Jess                         40,000                     20,800            \n                                                                                \nJeff Allen                         25,000                     13,000            \n                                                                                \nArti Dua                            3,000                      1,560            \n                                                                                \nMiriam Price                        3,000                      1,560            \n                                                                                \nGreg Van Ginkel                     2,000                      1,040            \n                                                                                \nLori Stewart                        1,000                        520            \n                                                                                \nMark Brown                         10,000                      5,200            \n                        ------------------------- ---------------------------- \n            Total:                499,000                    259,480            \n\n\n \n                                   EXHIBITS\n                                   --------\n\nExhibit A   -    Certificate of Merger\nExhibit B   -    Form of Spousal Consent\nExhibit C   -    Form of Proprietary Information and Inventions Agreement\nExhibit D   -    Form of Employee Nondisclosure and Developments Agreement\nExhibit E   -    Form of Release Agreement\nExhibit F   -    Stock Restriction Agreement\nExhibit G   -    Form of Non-Competition Agreement\nExhibit H   -    Non-Disclosure Agreement\nExhibit I   -    Form of Option Assumption Agreement\nExhibit J   -    Form of Optionholder Questionnaire\n\n\n \n                                SPOUSAL CONSENT\n\n          The undersigned, the spouse of Stockholder, acknowledges that he\/she\nis familiar with the substance of the Agreement and Plan of Merger and\nReorganization, dated the date hereof, between BuyGolf.com Inc., BUY.COM INC.\nand the Stockholders (the \"Agreement\") that his\/her spouse has signed today.\nWithout modifying any rights between himself\/herself and his\/her spouse, the\nundersigned hereby (i) agrees to be bound by the Agreement; (ii) agrees that\nhis\/her spouse may enter into the Agreement and consummate the transactions\ncontemplated thereby; and (iii) agrees that his\/her spouse may amend or modify\nthe Agreement without further consent on his\/her part.\n\n\n\nDated:  October ___, 1999               ___________________________________\n                                        Print Name:________________________\n\n\n\n\n<type>EX-3.1\n\n<sequence>4\n\n<description>AMENDED AND RESTATED CERTIFICATE OF BUY.COM\n\n\n\n\n \n                                                                     EXHIBIT 3.1\n                                  AMENDED AND\n                     RESTATED CERTIFICATE OF INCORPORATION\n                                      OF\n                                 BUY.COM INC.\n\n          BUY.COM INC., a corporation organized and existing under the General\nCorporation Law of the State of Delaware DOES HEREBY CERTIFY:\n\n          FIRST: The original Certificate of Incorporation of Buy Corp. was\n          -----                                                            \nfiled with the Secretary of State of Delaware on August 3, 1998.\n\n          SECOND: The Amended and Restated Certificate of Incorporation of\n          ------                                                          \nBUY.COM INC. in the form attached hereto as Exhibit A has been duly adopted in\naccordance with the provisions of Sections 245 and 242 of the General\nCorporation Law of the State of Delaware by the directors and stockholders of\nthe Corporation.\n\n          THIRD: The Amended and Restated Certificate of Incorporation so\n          -----                                                          \nadopted reads in full as set forth in Exhibit A attached hereto and is hereby\nincorporated herein by this reference.\n\n          IN WITNESS WHEREOF, BUY.COM INC. has caused this Certificate to be\nsigned this 2nd day of September, 1999.\n\n\n                                    BUY.COM INC.\n\n\n                                    By  ____________________________\n                                        Murray Williams\n                                        Secretary\n\n\n \n                                    AMENDED\n                                      AND\n                     RESTATED CERTIFICATE OF INCORPORATION\n                                      OF\n                                 BUY.COM INC.\n\n\n          FIRST:  The name of the corporation (hereinafter called the\n          -----                                                      \n\"Corporation\") is BUY.COM INC.\n\n          SECOND:  The address of the registered office of the Corporation in\n          ------                                                             \nthe State of Delaware is 9 East Loockerman Street, City of Dover, County of\nKent, and the name of the registered agent of the Corporation in the State of\nDelaware at such address is National Registered Agents, Inc.\n\n          THIRD:  The purpose of the Corporation is to engage in any lawful act\n          -----                                                                \nor activity for which corporations may be organized under the General\nCorporation Law of the State of Delaware.\n\n          FOURTH:\n          ------ \n\n          A.  This Corporation is authorized to issue two classes of shares to\nbe designated respectively Preferred Stock (\"Preferred Stock\") and Common Stock\n(\"Common Stock\").  The total number of shares of capital stock that the\nCorporation is authorized to issue is One Billion (1,000,000,000).  The total\nnumber of shares of Preferred Stock this Corporation shall have authority to\nissue is One Hundred Fifty Million (150,000,000).  The total number of shares of\nCommon Stock this Corporation shall have authority to issue is Eight Hundred\nFifty Million (850,000,000).  The Preferred Stock shall have a par value of\n$.0001 per share and the Common Stock shall have a par value of $.0001 per\nshare.  The Preferred Stock shall be divided into series. The first series shall\nconsist of Nineteen Million Four Hundred Eighty-One Thousand One Hundred Thirty\n(19,481,130) shares and is designated \"Series A Convertible Participating\nPreferred Stock\" and the second series shall consist of Fifteen Million Eight\nHundred Seventy Seven Thousand Two Hundred Forty Nine (15,877,249) shares and is\ndesignated \"Series B Convertible Participating Preferred Stock.\"  The remaining\nshares of Preferred Stock may be issued from time to time in one or more series.\nThe Board of Directors of the Corporation (the \"Board of Directors\") is\nexpressly authorized to provide for the issue of all or any of the remaining\nshares of the Preferred Stock in one or more series, and to fix the number of\nshares and to determine or alter, for each such series, such voting powers, full\nor limited, or no voting powers, and such designations, preferences, and\nrelative, participating, optional, or other rights and such qualifications,\nlimitations, or restrictions thereof, as shall be stated and expressed in the\nresolution or resolutions adopted by the Board of Directors providing for the\nissue of such shares (a \"Preferred Stock Designation\") and as may be permitted\nby the General Corporation Law of the State of Delaware.  The Board of Directors\nis also expressly authorized to increase or decrease (but not below the number\nof shares of such series then outstanding) the number of shares of any series,\nother than the Series A Convertible Participating Preferred Stock and the Series\nB Convertible Participating Preferred Stock, subsequent to the issue of shares\nof that \n\n                                       2\n\n\n \nseries. In case the number of shares of such series shall be so decreased, the\nshares constituting such decrease shall resume the status that they had prior to\nthe adoption of the resolution originally fixing the number of shares of such\nseries.\n\n          B.  The powers, preferences, rights, restrictions, and other matters\nrelating to the Series A Convertible Participating Preferred Stock and the\nSeries B Convertible Participating Preferred Stock are as follows:\n\n     1.   Number of Shares. The series of Preferred Stock designated and known\n          ----------------\nas \"Series A Convertible Participating Preferred Stock\" shall consist of\n19,481,130 shares and the series of Preferred Stock designated and known as\n\"Series B Convertible Participating Preferred Stock\" shall consist of 15,877,249\nshares.\n\n     2.   Voting.\n          ------ \n\n          2A.  General. Except as may be otherwise provided in these terms of\n               -------\nthe Series A Convertible Participating Preferred Stock (the \"Series A Stock\")\nand the Series B Convertible Participating Preferred Stock (the \"Series B\nStock\") or by law, the Series A Stock and the Series B Stock shall vote together\nwith all other classes and series of stock of the Corporation as a single class\non all actions to be taken by the stockholders of the Corporation, including but\nnot limited to, actions amending the Certificate of Incorporation to increase\nthe number of authorized shares of Common Stock. Each share of Series A Stock\nand Series B Stock shall entitle the holder thereof to such number of votes per\nshare on each such action as shall equal the number of shares of Common Stock\n(including fractions of a share) into which each share of Series A Stock and\nSeries B Stock is then convertible.\n\n          2B.  Board Size. The Corporation shall not, without the written\n               ----------\nconsent or affirmative vote of the holders of at least two-thirds of the then\noutstanding shares of Series A Stock and Series B Stock, given in writing or by\nvote at a meeting, consenting or voting (as the case may be) together as a\nsingle class, increase the maximum number of directors constituting the Board of\nDirectors to a number in excess of nine (9).\n\n          2C.  Board Seats. So long as ten percent (10%) of the Series A Stock\n               -----------\nand the Series B Stock remains outstanding, the holders of the Series A Stock,\nvoting as a separate series, shall be entitled to elect one director of the\nCorporation and the holders of Series B Stock, voting as a separate series,\nshall be entitled to elect one director of the Corporation. The holders of the\nCommon Stock, voting as a separate class, shall be entitled to elect one\ndirector of the Corporation. The holders of the Series A Stock, the Series B\nStock and the Common Stock, voting together as a single class, shall be entitled\nto elect the remainder of the directors of the Corporation. At any meeting (or\nin a written consent in lieu thereof) held for the purpose of electing\ndirectors, (i) the presence in person or by proxy (or the written consent) of\nthe holders of a majority of the total shares of the Series A Stock then\noutstanding shall constitute a quorum of the Series A Stock for the election of\ndirectors to be elected solely by the holders of the Series A Stock, (ii) the\npresence in person or by proxy (or the written consent) of the holders of a\nmajority of the\n                                       3\n\n\n \ntotal shares of the Series B Stock then outstanding shall constitute a quorum of\nthe Series B stock for the election of directors to be elected solely by the\nholders of the Series B Stock, (iii) the presence in person or by proxy (or the\nwritten consent) of the holders of a majority of the total shares of Common\nStock then outstanding shall constitute a quorum of the Common Stock for the\nelection of directors to be elected solely by the holders of the Common Stock,\nand (iv) the presence in person or by proxy (or the written consent) of the\nholders of a majority of the total shares of Series A Stock, Series B Stock and\nCommon Stock, voting as a single class on an as-if converted basis, then\noutstanding shall constitute a quorum of the Series A Stock, Series B Stock and\nCommon Stock for the election of directors to be elected solely by the holders\nof Series A Stock, Series B Stock and Common Stock, voting as a single class. A\nvacancy in any directorship elected by the holders of the Series A Stock shall\nbe filled only by vote or written consent of the holders of the Series A Stock;\na vacancy in any directorship elected by the holders of the Series B Stock shall\nbe filled only by vote or written consent of the holders of the Series B Stock;\na vacancy in any directorship elected by the holders of the Common Stock shall\nbe filled only by vote or written consent of the holders of the Common Stock;\nand a vacancy in the directorship elected jointly by the holders of the Series A\nStock, the Series B Stock and the Common Stock shall be filled only by vote or\nwritten consent of the Series A Stock, the Series B Stock and the Common Stock\nas provided above.\n\n     3.   Dividends.  The holders of the Series A Stock and the Series B Stock\n          ---------                                                           \nshall be entitled to receive, out of funds legally available therefor, when and\nif declared by the Board of Directors, quarterly dividends at the rate per annum\nof $0.0616 per share (the \"Accruing Dividends\"), appropriately adjusted, for\nstock splits, recapitalizations and the like subsequent to the date of this\nAmended and Restated Certificate of Incorporation.  Accruing Dividends shall\naccrue from day to day, whether or not earned or declared, and shall be\ncumulative.\n\n     4.   Liquidation.  Upon any liquidation, dissolution or winding up of the\n          -----------                                                         \nCorporation resulting in aggregate proceeds of less than $340,000,000, whether\nvoluntary or involuntary, the holders of the shares of Series A Stock and Series\nB Stock shall first be entitled, before any distribution or payment is made upon\nliquidation on any stock ranking junior to the Series A Stock and the Series B\nStock, to be paid an amount equal to $1.0266 per share and $5.6685 per share,\nrespectively, plus, in the case of each share, an amount equal to all Accruing\nDividends unpaid thereon (whether or not declared) and any other dividends\ndeclared but unpaid thereon, computed to the date payment thereof is made\navailable, such amount payable with respect to one share of Series A Stock and\nSeries B Stock, respectively, being sometimes referred to as the \"Series A\nLiquidation Preference Payment\" or the \"Series B Liquidation Preference\nPayment,\" as applicable, and with respect to all shares of Series A Stock or\nSeries B Stock, being sometimes referred to as the \"Series A Liquidation\nPreference Payments\" and \"Series B Liquidation Preference Payments,\"\nrespectively.  If upon such liquidation, dissolution or winding up of the\nCorporation, whether voluntary or involuntary, the assets to be distributed\namong the holders of Series A Stock and Series B Stock shall be insufficient to\npermit payment in full to the holders of Series A Stock and Series B Stock of\nthe Series A Liquidation Preference Payments and the Series B Liquidation\nPreference Payments, respectively, then the entire assets of the Corporation to\nbe so distributed shall be distributed ratably among the holders of Series A\nStock and Series B Stock (with each share of Series A Stock and Series B Stock\nbeing deemed, for such purpose, to be equal to the number of shares of Common\nStock (including fractions of a share) into which such share of Series A Stock\nor Series B Stock is convertible immediately prior to the close of business on\nthe business day fixed for such distribution).  Upon any such liquidation,\ndissolution or winding up of the Corporation, immediately after the holders of\n\n                                       4\n\n\n \nSeries A Stock and Series B Stock shall have been paid in full the Series A\nLiquidation Preference Payments and the Series B Liquidation Preference\nPayments, respectively, the remaining net assets of the Corporation available\nfor distribution shall be distributed ratably among the holders of Series A\nStock, Series B Stock and Common Stock (with each share of Series A Stock and\nSeries B Stock being deemed, for such purpose, to be equal to the number of\nshares of Common Stock (including fractions of a share) into which such share of\nSeries A Stock or Series B Stock is convertible immediately prior to the close\nof business on the business day fixed for such distribution).  Written notice of\nsuch liquidation, dissolution or winding up, stating a payment date and the\nplace where said payments shall be made, shall be delivered in person, mailed by\ncertified or registered mail, return receipt requested, or sent by telecopier or\ntelex, not less than 20 days prior to the payment date stated therein, to the\nholders of record of Series A Stock and Series B Stock, such notice to be\naddressed to each such holder at its address as shown by the records of the\nCorporation.  The consolidation or merger of the Corporation into or with any\nother entity or entities which results in the exchange of outstanding shares of\nthe Corporation for securities or other consideration issued or paid or caused\nto be issued or paid by any such entity or affiliate thereof (other than a\nmerger to reincorporate the Corporation in a different jurisdiction), and the\nsale, lease, abandonment, transfer or other disposition by the Corporation of\nall or substantially all its assets, shall be deemed to be a liquidation,\ndissolution or winding up of the Corporation within the meaning of the\nprovisions of this paragraph 4.  For purposes hereof, the Common Stock shall\nrank junior to the Series A Stock and the Series B Stock in the event of\nliquidation.\n\n     5.   Restrictions. So long as ten percent (10%) of the Series A Stock and\n          ------------ \nthe Series B Stock remains outstanding, except where the vote or written consent\nof the holders of a greater number of shares of the Corporation is required by\nlaw or by the Certificate of Incorporation, and in addition to any other vote\nrequired by law or the Certificate of Incorporation, without the approval of the\nholders of at least a majority of the then outstanding total shares of each of\nthe Series A Stock and the Series B Stock, given in writing or by vote at a\nmeeting, consenting or voting (as the case may be), separately as series, the\nCorporation will not:\n\n          5A.  Create or authorize the creation of any additional class or\nseries of shares of stock unless the same ranks junior to the Series A Stock and\nthe Series B Stock as to the distribution of assets on the liquidation,\ndissolution or winding up of the Corporation, or increase the authorized amount\nof the Series A Stock or Series B Stock or increase the authorized amount of any\nadditional class or series of shares of stock unless the same ranks junior to\nthe Series A Stock and the Series B Stock as to the distribution of assets on\nthe liquidation, dissolution or winding up of the Corporation, or create or\nauthorize any obligation or security convertible into shares of Series A Stock\nor Series B Stock or into shares of any other class or series of stock unless\nthe same ranks junior to the Series A Stock and the Series B Stock as to the\ndistribution of assets on the liquidation, dissolution or winding up of the\nCorporation, whether any such creation, authorization or increase shall be by\nmeans of amendment to the Certificate of Incorporation or by merger,\nconsolidation or otherwise;\n\n          5B.  Consent to any liquidation, dissolution or winding up of the\nCorporation or consolidate or merge into or with any other entity or entities or\nsell, lease, abandon, transfer or \n\n                                       5\n\n\n \notherwise dispose of all or substantially all its assets if the Corporation's\nvaluation for purposes of such transaction is less than One Billion Dollars\n($1,000,000,000);\n\n     5C.  Amend, alter or repeal its Certificate of Incorporation or By-laws\nin a manner that would materially affect the Series A Stock or the Series B\nStock;\n\n     5D.  Purchase or set aside any sums for the purchase of, or pay any\ndividend or make any distribution on, any shares of stock other than the Series\nA Stock and the Series B Stock, except for dividends or other distributions\npayable on the Common Stock solely in the form of additional shares of Common\nStock and except for the purchase of shares of Common Stock from former\nemployees of the Corporation who acquired such shares directly from the\nCorporation, if each such purchase is made pursuant to contractual rights held\nby the Corporation relating to the termination of employment of such former\nemployee and the purchase price does not exceed the original issue price paid by\nsuch former employee to the Corporation for such shares; or\n\n     5E.  Redeem or otherwise acquire any shares of Series A Stock or Series B\nStock except as expressly authorized in paragraph 7 hereof or pursuant to a\npurchase offer made pro rata to all holders of the shares of Series A Stock and\nSeries B Stock on the basis of the aggregate number of outstanding shares of\nSeries A Stock and Series B Stock then held by each such holder.\n\nIn addition, the consent of the holders of a majority of the outstanding Series\nB Stock, voting as a separate class, shall be required for:  (i) any amendment\nor change of the rights, preferences or powers of the Series B Stock; (ii) any\naction that reclassifies any outstanding shares into shares having rights as to\ndividends or assets senior to or on a parity with the Series B Stock; (iii) any\namendment of the Company's Certificate of Incorporation that modifies the rights\nof the Series B Stock in an adverse manner; (iv) any material change in the\nCorporation's line of business provided that expanding into new markets and new\nproducts and services categories or expanding into other e-commerce activities\nshall not be deemed a material change; (v) any agreement between the Corporation\nand any officer or director other than in the ordinary course of business; (vi)\nany issuance of debt in excess of $100,000,000 in the aggregate.\n\nIn addition, the consent of the holders of a majority of the outstanding Series\nA Stock, voting as a separate class, shall be required for:  (i) any amendment\nor change of the rights, preferences or powers of the Series A Stock; (ii) any\naction that reclassifies any outstanding shares into shares having rights as to\ndividends or assets senior to or on a parity with the Series A Stock; (iii) any\namendment of the Company's Certificate of Incorporation that modifies the rights\nof the Series A Stock in an adverse manner.\n\n     6.   Conversions. The holders of shares of Series A Stock and Series B\n          -----------\nStock shall have the following conversion rights:\n\n     6A.  Right to Convert.  Subject to the terms and conditions of this\n          ----------------                                              \nparagraph 6, the holder of any share or shares of Series A Stock or Series B\nStock shall have the right, at its option at any time, to convert any such\nshares of Series A Stock or Series B Stock (except that\n\n                                       6\n\n\n \nupon any liquidation of the Corporation the right of conversion shall terminate\nat the close of business on the business day fixed for payment of the amount\ndistributable on the Series A Stock and Series B Stock) into such number of\nfully paid and nonassessable shares of Common Stock as is obtained by (i)\nmultiplying, in the case of the Series A Stock, the number of shares of Series A\nStock so to be converted by $1.0266 or, in the case of the Series B Stock, the\nnumber of shares of Series B Stock so to be converted by $5.6685 and (ii)\ndividing the result, in the case of the Series A Stock, by the conversion price\nof $1.0266 per share or, in the case of the Series B Stock, by the conversion\nprice of $5.6685 or, in case an adjustment of either such conversion price has\ntaken place pursuant to the further provisions of this paragraph 6, then by the\nconversion price as last adjusted and in effect at the date any share or shares\nof Series A Stock or Series B Stock are surrendered for conversion (such price,\nor such price as last adjusted, being referred to as the \"Series A Conversion\nPrice\" or the \"Series B Conversion Price\" as applicable). Such rights of\nconversion shall be exercised by the holder thereof by giving written notice\nthat the holder elects to convert a stated number of shares of Series A Stock\nand\/or Series B Stock into Common Stock and by surrender of a certificate or\ncertificates for the shares so to be converted to the Corporation at its\nprincipal office (or such other office or agency of the Corporation as the\nCorporation may designate by notice in writing to the holders of the Series A\nStock and the Series B Stock) at any time during its usual business hours on the\ndate set forth in such notice, together with a statement of the name or names\n(with address) in which the certificate or certificates for shares of Common\nStock shall be issued.\n\n     6B.  Issuance of Certificates; Time Conversion Effected.  Promptly after\n          --------------------------------------------------                 \nthe receipt of the written notice referred to in subparagraph 6A and surrender\nof the certificate or certificates for the share or shares of Series A Stock\nand\/or Series B Stock to be converted, the Corporation shall issue and deliver,\nor cause to be issued and delivered, to the holder, registered in such name or\nnames as such holder may direct, a certificate or certificates for the number of\nwhole shares of Common Stock issuable upon the conversion of such share or\nshares of Series A Stock and\/or Series B Stock.  To the extent permitted by law,\nsuch conversion shall be deemed to have been effected and the Series A\nConversion Price and\/or the Series B Conversion Price shall be determined as of\nthe close of business on the date on which such written notice shall have been\nreceived by the Corporation and the certificate or certificates for such share\nor shares shall have been surrendered as aforesaid, and at such time the rights\nof the holder of such share or shares of Series A Stock and\/or Series B Stock\nshall cease, and the person or persons in whose name or names any certificate or\ncertificates for shares of Common Stock shall be issuable upon such conversion\nshall be deemed to have become the holder or holders of record of the shares\nrepresented thereby.\n\n     6C.  Fractional Shares; Dividends; Partial Conversion.  No fractional\n            ------------------------------------------------                \nshares shall be issued upon conversion of Series A Stock or Series B Stock into\nCommon Stock, and no payment or adjustment shall be made upon any conversion on\naccount of any cash dividends on the Common Stock issued upon such conversion.\nAt the time of each conversion, the Corporation shall pay in cash an amount\nequal to all dividends, excluding Accruing Dividends, accrued and unpaid on the\nshares of Series A Stock and\/or Series B Stock surrendered for conversion to the\ndate upon which such conversion is deemed to take place as provided in\nsubparagraph 6B.  In case the number of shares of Series A Stock and\/or Series B\nStock represented by the certificate or certificates surrendered pursuant to\nsubparagraph 6A exceeds the\n\n                                       7\n\n\n \nnumber of shares converted, the Corporation shall, upon such conversion, execute\nand deliver to the holder, at the expense of the Corporation, a new certificate\nor certificates for the number of shares of Series A Stock and\/or Series B Stock\nrepresented by the certificate or certificates surrendered which are not to be\nconverted. If any fractional share of Common Stock would, except for the\nprovisions of the first sentence of this subparagraph 6C, be delivered upon such\nconversion, the Corporation, in lieu of delivering such fractional share, shall\npay to the holder surrendering the Series A Stock and\/or the Series B Stock for\nconversion an amount in cash equal to the current market price of such\nfractional share as determined in good faith by the Board of Directors of the\nCorporation.\n\n          6D.  Adjustment of Price Upon Issuance of Common Stock.  Except as\n               -------------------------------------------------            \nprovided in subparagraph 6E, if and whenever the Corporation shall issue or\nsell, or is, in accordance with subparagraphs 6D(1) through 6D(7), deemed to\nhave issued or sold, any shares of Common Stock for a consideration per share\nless than the Conversion Price with respect to any series of Preferred Stock in\neffect on the date of and immediately prior to such issuance or sale, then and\nin such event, the Conversion Price for such series of Preferred Stock shall be\nautomatically reduced, concurrently with such issuance or sale, to the price\ndetermined by dividing (i) an amount equal to the sum of (a) the number of\nshares of Common Stock outstanding immediately prior to such issuance or sale\nmultiplied by the then existing Conversion Price for such series of Preferred\nStock and (b) the consideration, if any, received by the Corporation upon such\nissuance or sale, by (ii) the total number of shares of Common Stock and Series\nA Stock or Series B Stock, as the case may be, outstanding immediately after\nsuch issuance or sale.\n\n     For purposes of this subparagraph 6D, the following subparagraphs 6D(1) to\n6D(7) shall also be applicable:\n\n              6D(1)  Issuance of Rights or Options.  In case at any time the\n                     -----------------------------                          \n     Corporation shall in any manner grant (whether directly or by assumption in\n     a merger or otherwise) any warrants or other rights to subscribe for or to\n     purchase, or any options for the purchase of, Common Stock or any stock or\n     security convertible into or exchangeable for Common Stock (such warrants,\n     rights or options being called \"Options\" and such convertible or\n     exchangeable stock or securities being called \"Convertible Securities\")\n     whether or not such Options or the right to convert or exchange any such\n     Convertible Securities are immediately exercisable, and the price per share\n     for which Common Stock is issuable upon the exercise of such Options or\n     upon the conversion or exchange of such Convertible Securities (determined\n     by dividing (i) the total amount, if any, received or receivable by the\n     Corporation as consideration for the granting of such Options, plus the\n     minimum aggregate amount of additional consideration payable to the\n     Corporation upon the exercise of all such Options, plus, in the case of\n     such Options which relate to Convertible Securities, the minimum aggregate\n     amount of additional consideration, if any, payable upon the issue or sale\n     of such Convertible Securities and upon the conversion or exchange thereof,\n     by (ii) the total maximum number of shares of Common Stock issuable upon\n     the exercise of such \n\n                                       8\n\n\n \n     Options or upon the conversion or exchange of all such Convertible\n     Securities issuable upon the exercise of such Options) shall be less than\n     the Conversion Price of any series of Preferred Stock in effect immediately\n     prior to the time of the granting of such Options, then the total maximum\n     number of shares of Common Stock issuable upon the exercise of such Options\n     or upon conversion or exchange of the total maximum amount of such\n     Convertible Securities issuable upon the exercise of such Options shall be\n     deemed to have been issued for such price per share as of the date of\n     granting of such Options or the issuance of such Convertible Securities and\n     thereafter shall be deemed to be outstanding. Except as otherwise provided\n     in subparagraph 6D(3), no adjustment of the Conversion Price of any series\n     of Preferred Stock shall be made upon the actual issuance of such Common\n     Stock or of such Convertible Securities upon exercise of such Options or\n     upon the actual issue of such Common Stock upon conversion or exchange of\n     such Convertible Securities.\n\n            6D(2)  Issuance of Convertible Securities. In case the\n                   ----------------------------------     \n     Corporation shall in any manner issue (whether directly or by assumption in\n     a merger or otherwise) or sell any Convertible Securities, whether or not\n     the rights to exchange or convert any such Convertible Securities are\n     immediately exercisable, and the price per share for which Common Stock is\n     issuable upon such conversion or exchange (determined by dividing (i) the\n     total amount received or receivable by the Corporation as consideration for\n     the issuance or sale of such Convertible Securities, plus the minimum\n     aggregate amount of additional consideration, if any, payable to the\n     Corporation upon the conversion or exchange thereof, by (ii) the total\n     maximum number of shares of Common Stock issuable upon the conversion or\n     exchange of all such Convertible Securities) shall be less than the\n     Conversion Price of any series of Preferred Stock in effect immediately\n     prior to the time of such issue or sale, then the total maximum number of\n     shares of Common Stock issuable upon conversion or exchange of all such\n     Convertible Securities shall be deemed to have been issued for such price\n     per share as of the date of the issue or sale of such Convertible\n     Securities and thereafter shall be deemed to be outstanding, provided that\n     (a) except as otherwise provided in subparagraph 6D(3), no adjustment of\n     the Conversion Price of any series of Preferred Stock shall be made upon\n     the actual issuance of such Common Stock upon conversion or exchange of\n     such Convertible Securities and (b) if any such issuance or sale of such\n     Convertible Securities is made upon exercise of any Options to purchase any\n     such Convertible Securities for which adjustments of the Conversion Price\n     of any Series of Preferred Stock have been or are to be made pursuant to\n     other provisions of this subparagraph 6D, no further adjustment of the\n     Conversion Price shall be made by reason of such issuance or sale.\n\n            6D(3)  Change in Option Price or Conversion Rate. Upon the happening\n                   -----------------------------------------                    \n     of any of the following events, namely, if the purchase price provided for\n     in any Option referred to in subparagraph 6D(1), the additional\n     consideration, if any, payable upon the conversion or exchange of any\n     Convertible Securities referred to in subparagraph 6D(1) or 6D(2), or the\n     rate at which Convertible Securities referred to in subparagraph 6D(1) or\n     6D(2) are convertible into or exchangeable for Common Stock shall change at\n     any time (including, but not limited to, changes under or by reason of\n     provisions designed to protect against dilution), the Conversion Price of\n     any series of Preferred Stock in effect at the time of such event shall\n     forthwith be readjusted to the Conversion Price which would have been in\n     effect at such time had such Options or Convertible Securitiesstill\n     outstanding provided for such changed purchase price, additional\n     consideration or conversion rate, as the case may be, at the time initially\n     granted, issued or sold, but only if as a result of such adjustment the\n     Conversion Price then in effect hereunder is thereby reduced; and on the\n     termination of any such Option or any such right to convert or exchange\n     such Convertible Securities, the\n\n                                       9\n\n\n \n     Conversion Price for such series of Preferred Stock then in effect\n     hereunder shall forthwith be increased to the Conversion Price for such\n     series of Preferred Sock which would have been in effect at the time of\n     such termination had such Option or Convertible Securities, to the extent\n     outstanding immediately prior to such termination, never been issued.\n\n          6D(4)  Stock Dividends.  In case the Corporation shall declare a\n                 ---------------                                          \n     dividend or make any other distribution upon any stock of the Corporation\n     payable in Common Stock (except for dividends or distributions upon the\n     Common Stock), Options or Convertible Securities, any Common Stock, Options\n     or Convertible Securities, as the case may be, issuable in payment of such\n     dividend or distribution shall be deemed to have been issued or sold\n     without consideration.\n\n          6D(5)  Consideration for Stock.  In case any shares of Common Stock,\n                 -----------------------                                      \n     Options or Convertible Securities shall be issued or sold for cash, the\n     consideration received therefor shall be deemed to be the amount received\n     by the Corporation therefor, without deduction therefrom of any expenses\n     incurred or any underwriting commissions or concessions paid or allowed by\n     the Corporation in connection therewith. In case any shares of Common\n     Stock, Options or Convertible Securities shall be issued or sold for a\n     consideration other than cash, the amount of the consideration other than\n     cash received by the Corporation shall be deemed to be the fair value of\n     such consideration as determined in good faith by the Board of Directors of\n     the Corporation, without deduction of any expenses incurred or any\n     underwriting commissions or concessions paid or allowed by the Corporation\n     in connection therewith. In case any Options shall be issued in connection\n     with the issue and sale of other securities of the Corporation, together\n     comprising one integral transaction in which no specific consideration is\n     allocated to such Options by the parties thereto, such Options shall be\n     deemed to have been issued for such consideration as determined in good\n     faith by the Board of Directors of the Corporation.\n\n          6D(6)  Record Date.  In case the Corporation shall take a record of\n                 -----------                                                 \n     the holders of its Common Stock for the purpose of entitling them (i) to\n     receive a dividend or other distribution payable in Common Stock, Options\n     or Convertible Securities or (ii) to subscribe for or purchase Common\n     Stock, Options or Convertible Securities, then such record date shall be\n     deemed to be the date of the issuance or sale of the shares of Common Stock\n     deemed to have been issued or sold upon the declaration of such dividend or\n     the making of such other distribution or the date of the granting of such\n     right of subscription or purchase, as the case may be.\n\n          6D(7)  Treasury Shares.  The number of shares of Common Stock\n                 ---------------                                       \n     outstanding at any given time shall not include shares owned or held by or\n     for the account of the Corporation, and the disposition of any such shares\n     shall be considered an issue or sale of Common Stock for the purpose of\n     this subparagraph 6D.\n\n       6E.  Certain Issues of Common Stock Excepted.  Anything herein to the\n            ---------------------------------------                         \ncontrary notwithstanding, the Corporation shall not be required to make any\nadjustment of the Conversion Price of any series of Preferred Stock in the case\nof the issuance from and after the date of filing of these terms of the Series A\nStock and the Series B Stock of (i) shares of Common Stock\n\n                                       10\n\n\n \nissuable upon exercise of options granted to directors, officers, employees or\nconsultants of the Corporation in connection with their service as directors of\nthe Corporation, their employment by the Corporation or their retention as\nconsultants by the Corporation, (ii) such number of shares of Common Stock which\nare repurchased by the Corporation from such persons after such date pursuant to\ncontractual rights held by the Corporation and at repurchase prices not\nexceeding the respective original purchase prices paid by such persons to the\nCorporation therefor, (iii) Common Stock or Common Stock Equivalents issued as\nconsideration in a merger, (iv) Common Stock or Common Stock Equivalents issued\npursuant to an adjustment in the Conversion Price of the Series B Stock pursuant\nto Section 6P, (v) Common Stock or Common Stock Equivalents issued or issuable\n(I) in a public offering before or in connection with which all outstanding\nshares of Preferred Stock will be converted to Common Stock or (II) upon the\nexercise of warrants or rights granted to underwriters in connection with such a\npublic offering, or (vi) Common Stock or Common Stock Equivalents issued to a\npotential or existing customer or supplier or other strategic relationship or\nissued in connection with a credit facility or equipment lease transaction,\nincluding without limitation, warrants previously issued to The Bank of Nova\nScotia and United Air Lines, Inc.\n\n       6F.  Subdivision or Combination of Common Stock.  In case the Corporation\n            ------------------------------------------                          \nshall at any time subdivide (by any stock split, stock dividend or otherwise\nsubsequent to the date of this Amended and Restated Certificate of\nIncorporation) its outstanding shares of Common Stock into a greater number of\nshares, the Conversion Price of any series of Preferred Stock in effect\nimmediately prior to such subdivision shall be proportionately reduced, and,\nconversely, in case the outstanding shares of Common Stock shall be combined\ninto a smaller number of shares, the Conversion Price of any series of Preferred\nStock in effect immediately prior to such combination shall be proportionately\nincreased.  In the case of any such subdivision, no further adjustment shall be\nmade pursuant to subparagraph 6D(4) by reason thereof.\n\n       6G.  Reorganization or Reclassification.  If any capital reorganization\n            ----------------------------------                                \nor reclassification of the capital stock of the Corporation shall be effected in\nsuch a way that holders of Common Stock shall be entitled to receive stock,\nsecurities or assets with respect to or in exchange for Common Stock, then, as a\ncondition of such reorganization or reclassification, lawful and adequate\nprovisions shall be made whereby each holder of a share or shares of Series A\nStock and Series B Stock shall thereupon have the right to receive, upon the\nbasis and upon the terms and conditions specified herein and in lieu of the\nshares of Common Stock immediately theretofore receivable upon the conversion of\nsuch share or shares of Series A Stock and Series B Stock, such shares of stock,\nsecurities or assets as may be issued or payable with respect to or in exchange\nfor a number of outstanding shares of such Common Stock equal to the number of\nshares of such Common Stock immediately theretofore receivable upon such\nconversion had such reorganization or reclassification not taken place, and in\nany such case appropriate provisions shall be made with respect to the rights\nand interests of such holder to the end that the provisions hereof (including\nwithout limitation provisions for adjustments of the Conversion Price) shall\nthereafter be applicable, as nearly as may be, in relation to any shares of\nstock, securities or assets thereafter deliverable upon the exercise of such\nconversion rights.\n\n       6H.  Notice of Adjustment.  Upon any adjustment of the Conversion Price,\n            --------------------                                               \nthen and in each such case the Corporation shall give written notice thereof, by\ndelivery in person, \n\n                                       11\n\n\n \ncertified or registered mail, return receipt requested, telecopier or telex,\naddressed to each holder of shares of Series A Stock and Series B Stock at the\naddress of such holder as shown on the books of the Corporation, which notice\nshall state the Conversion Price for each series of Preferred Stock resulting\nfrom such adjustment, setting forth in reasonable detail the method upon which\nsuch calculation is based.\n\n          6I.  Other Notices.  In case at any time:\n               -------------                       \n\n               (1) the Corporation shall declare any dividend upon its Common\n     Stock payable in cash or stock or make any other distribution to the\n     holders of its Common Stock;\n\n               (2) the Corporation shall offer for subscription pro rata to the\n                                                                --- ----       \n     holders of its Common Stock any additional shares of stock of any class or\n     other rights;\n\n               (3) there shall be any capital reorganization or reclassification\n     of the capital stock of the Corporation, or a consolidation or merger of\n     the Corporation with or into another entity or entities, or a sale, lease,\n     abandonment, transfer or other disposition of all or substantially all of\n     the assets of the Corporation; or\n\n               (4) there shall be a voluntary or involuntary dissolution,\n     liquidation or winding up of the Corporation;\n\nthen, in any one or more of said cases, the Corporation shall give, by delivery\nin person, certified or registered mail, return receipt requested, telecopier or\ntelex, addressed to each holder of any shares of Series A Stock and Series B\nStock at the address of such holder as shown on the books of the Corporation,\n(a) at least 20 days' prior written notice of the date on which the books of the\nCorporation shall close or a record shall be taken for such dividend,\ndistribution or subscription rights or for determining rights to vote in respect\nof any such reorganization, reclassification, consolidation, merger,\ndisposition, dissolution, liquidation or winding up and (b) in the case of any\nsuch reorganization, reclassification, consolidation, merger, disposition,\ndissolution, liquidation or winding up, at least 20 days' prior written notice\nof the date when the same shall take place.  Such notice in accordance with the\nforegoing clause (a) shall also specify, in the case of any such dividend,\ndistribution or subscription rights, the date on which the holders of Common\nStock shall be entitled thereto and such notice in accordance with the foregoing\nclause (b) shall also specify the date on which the holders of Common Stock\nshall be entitled to exchange their Common Stock for securities or other\nproperty deliverable upon such reorganization, reclassification, consolidation,\nmerger, disposition, dissolution, liquidation or winding up, as the case may be.\n\n     6J.  Stock to be Reserved.  The Corporation will at all times reserve and\n          --------------------                                                \nkeep available out of its authorized Common Stock, solely for the purpose of\nissuance upon the conversion of Series A Stock and Series B Stock as herein\nprovided, such number of shares of Common Stock as shall then be issuable upon\nthe conversion of all outstanding shares of Series A Stock and Series B Stock.\nThe Corporation covenants that all shares of Common Stock which shall be so\nissued shall be duly and validly issued and fully paid and nonassessable and\nfree from all taxes, liens and charges with respect to the issue thereof, and,\nwithout limiting the generality \n\n                                       12\n\n\n \nof the foregoing, the Corporation covenants that it will from time to time take\nall such action as may be requisite to assure that the par value per share of\nthe Common Stock is at all times equal to or less than the Conversion Price in\neffect at the time. The Corporation will take all such action as may be\nnecessary to assure that all such shares of Common Stock may be so issued\nwithout violation of any applicable law or regulation, or of any requirement of\nany national securities exchange or automated quotation system upon which the\nCommon Stock may be listed. The Corporation will not take any action which\nresults in any adjustment of the Conversion Price of any series of Preferred\nStock if the total number of shares of Common Stock issued and issuable after\nsuch action upon conversion of the Series A Stock and Series B Stock would\nexceed the total number of shares of Common Stock then authorized by the\nCertificate of Incorporation.\n\n     6K.  No Reissuance of Series A Stock or Series B Stock.  Shares of Series\n          -------------------------------------------------                   \nA Stock and Series B Stock which are converted into shares of Common Stock as\nprovided herein shall not be reissued.\n\n     6L.  Issue Tax.  The issuance of certificates for shares of Common Stock\n          ---------                                                          \nupon conversion of Series A Stock and Series B Stock shall be made without\ncharge to the holders thereof for any issuance tax in respect thereof, provided\nthat the Corporation shall not be required to pay any tax which may be payable\nin respect of any transfer involved in the issuance and delivery of any\ncertificate in a name other than that of the holder of the Series A Stock and\/or\nSeries B Stock which is being converted.\n\n     6M.  Closing of Books.  The Corporation will at no time close its\n          ----------------                                            \ntransfer books against the transfer of any Series A Stock and\/or Series B Stock\nor of any shares of Common Stock issued or issuable upon the conversion of any\nshares of Series A Stock or Series B Stock in any manner which interferes with\nthe timely conversion of such Series A Stock and\/or Series B Stock, except as\nmay otherwise be required to comply with applicable securities laws.\n\n     6N.  Definition of Common Stock.  As used in this paragraph 6, the term\n          --------------------------                                        \n\"Common Stock\" shall mean and include the Corporation's authorized Common Stock,\npar value $.0001 per share, as constituted on the date of filing of these terms\nof the Series A Stock and Series B Stock, and shall also include any capital\nstock of any class of the Corporation thereafter authorized which shall neither\nbe limited to a fixed sum or percentage in respect of the rights of the holders\nthereof to participate in dividends nor entitled to a preference in the\ndistribution of assets upon the voluntary or involuntary liquidation,\ndissolution or winding up of the Corporation; provided that the shares of Common\nStock receivable upon conversion of shares of Series A Stock and\/or Series B\nStock shall include only shares designated as Common Stock of the Corporation on\nthe date of filing of this instrument, or in case of any reorganization or\nreclassification of the outstanding shares thereof, the stock, securities or\nassets provided for in subparagraph 6G.\n\n     6O.  Mandatory Conversion.  If at any time the Corporation shall effect a\n          --------------------                                                \nfirm commitment underwritten public offering (\"IPO\") of shares of Common Stock\nin which (i) the aggregate price paid for such shares by the public shall be at\nleast $30,000,000 and (ii) the price paid by the public for such shares shall be\nat least $2.053 per share (appropriately adjusted to \n\n                                       13\n\n\n \nreflect the occurrence of any event described in subparagraph 6F subsequent to\nthe date of this Amended and Restated Certificate of Incorporation), then\neffective upon the closing of the sale of such shares by the Corporation\npursuant to such public offering, all outstanding shares of Series A Stock and\nSeries B Stock shall automatically convert to shares of Common Stock on the\nbasis set forth in this paragraph 6. Holders of shares of Series A Stock and\nSeries B Stock so converted may deliver to the Corporation at its principal\noffice (or such other office or agency of the Corporation as the Corporation may\ndesignate by notice in writing to such holders) during its usual business hours,\nthe certificate or certificates for the shares so converted. As promptly as\npracticable thereafter, the Corporation shall issue and deliver to such holder a\ncertificate or certificates for the number of whole shares of Common Stock to\nwhich such holder is entitled, together with any cash dividends and payment in\nlieu of fractional shares to which such holder may be entitled pursuant to\nsubparagraph 6C. Until such time as a holder of shares of Series A Stock and\/or\nSeries B Stock shall surrender his or its certificates therefor as provided\nabove, such certificates shall be deemed to represent the shares of Common Stock\nto which such holder shall be entitled upon the surrender thereof.\n\n          6P.  Adjustment to Series B Stock Conversion Price Upon IPO.  In the\n               ------------------------------------------------------         \nevent the Corporation consummates an IPO and the IPO Price Per Share is less\nthan the Target Price, then the Series B Conversion Price in effect immediately\nprior to the IPO shall be adjusted according to the calculation below.  In the\nevent the IPO Price Per Share equals or exceeds the Target Price, no adjustment\nto the Series B Conversion Price shall occur under this Section 6P.  This\nspecial one-time adjustment shall apply only to the Series B Conversion Price\nand shall not apply to the Series A Conversion Price.  Notwithstanding anything\ncontained herein to the contrary, in no event shall the Series B Conversion\nPrice be adjusted below $2.8343 per share (as adjusted for subsequent stock\nsplits, combinations, stock dividends and the like).\n\nStep 1:\n------ \n\n          Target Price - the IPO Price Per Share = Shortfall\n\nStep 2:\n------ \n                 Shortfall  =  Alpha\n                 ---------          \n                 Target Price\n\nStep 3:\n------ \n          Alpha x the Series B Issue Price = Beta\n\nStep 4:\n------ \n          The Series B Issue Price - Beta = New Series B Conversion Price\n\nDefinitions:\n\n       \"  Target Price\" shall equal $7.0856 per share (as adjusted for\nsubsequent stock splits, combinations, stock dividends and the like).\n\n                                       14\n\n\n \n          \"Series B Issue Price\" shall equal $5.6685 (as adjusted for subsequent\nstock splits, combinations, stock dividends and the like).\n\n          \"IPO Price Per Share\" shall equal the initial public offering price\nper share at which the Corporation's Common Stock is first sold to the public\npursuant to a Registration Statement on Form S-1 which has been declared\neffective by the Securities and Exchange Commission.\n\n     7.   Redemption.  The shares of Series A Stock and Series B Stock shall be\n          ----------                                                           \nredeemed as follows:\n\n          7A.  Redemption.  On August 18, 2003 (the \"Series A Redemption Date\"),\n               ----------                                                       \nthe Corporation shall at the option of the holders of a majority of the\noutstanding Series A Stock, redeem all outstanding shares of Series A Stock.  On\nSeptember 2, 2004 (the \"Series B Redemption Date\"), the Corporation shall at the\noption of the holders of a majority of the outstanding Series B Stock, redeem\nall outstanding shares of Series B Stock.  The Series A Redemption Date and the\nSeries B Redemption Date shall each be referred to as a \"Redemption Date.\"\n\n          7B.  Redemption Price and Payment.  The shares of Series A Stock to be\n               ----------------------------                                     \nredeemed on the Series A Redemption Date shall be redeemed by paying for each\nshare in cash an amount equal to $1.0266 per share plus, in the case of each\nshare, an amount equal to all dividends, excluding Accruing Dividends, declared\nbut unpaid thereon, computed to such Series A Redemption Date, such amount being\nreferred to as a \"Redemption Price\" or more specifically the \"Series A\nRedemption Price\".  Such payment shall be made in full on the Series A\nRedemption Date to the holders entitled thereto.  The shares of Series B Stock\nto be redeemed on the Series B Redemption Date shall be redeemed by paying for\neach share in cash an amount equal to $5.6685 per share plus, in the case of\neach share, an amount equal to all dividends, excluding Accruing Dividends,\ndeclared but unpaid thereon, computed to such Series B Redemption Date, such\namount being referred to as a \"Redemption Price\" or more specifically the\n\"Series B Redemption Price\".  Such payment shall be made in full on the Series B\nRedemption Date to the holders entitled thereto.\n\n          7C.  Redemption Mechanics. At least 20 but not more than 30 days prior\n               --------------------\nto any Redemption Date, written notice (the \"Redemption Notice\") shall be given\nby the Corporation by delivery in person, certified or registered mail, return\nreceipt requested, telecopier or telex, to each holder of record (at the close\nof business on the business day next preceding the day on which the Redemption\nNotice is given) of shares of Series A Stock or Series B Stock, as the case may\nbe, notifying such holder of the redemption and specifying the Series A\nRedemption Price or Series B Redemption Price, the Series A Redemption Date or\nSeries B Redemption Date, the number of shares of Series A Stock or Series B\nStock to be redeemed from such holder (computed on a pro rata basis in\naccordance with the number of such shares held by all holders thereof) and the\nplace where said Series A Redemption Price or Series B Redemption Price shall be\npayable. The Redemption Notice shall be addressed to each holder at his address\nas shown by the records of the Corporation. From and after the close of business\non a Redemption Date, unless there shall have been a default in the payment of\nthe applicable Redemption Price, all rights of holders of shares of Series A\nStock or Series B Stock, as the case may be, (except the \n\n                                       15\n\n\n \nright to receive the applicable Redemption Price) shall cease with respect to\nthe shares redeemed on such Redemption Date, and such shares shall not\nthereafter be transferred on the books of the Corporation or be deemed to be\noutstanding for any purpose whatsoever. If the funds of the Corporation legally\navailable for redemption of shares of Series A Stock or Series B Stock on the\napplicable Redemption Date are insufficient to redeem the total number of shares\nof Series A Stock or Series B Stock to be redeemed on such Redemption Date, the\nholders of such shares shall share ratably in any funds legally available for\nredemption of such shares according to the respective amounts which would be\npayable to them if the full number of shares to be redeemed on such Redemption\nDate were actually redeemed. The shares of Series A Stock or Series B Stock not\nso redeemed shall remain outstanding and entitled to all rights and preferences\nprovided herein. At any time thereafter when additional funds of the Corporation\nare legally available for the redemption of such shares of Series A Stock and\/or\nSeries B Stock, such funds will be used, at the end of the next succeeding\nfiscal quarter, to redeem the balance of such shares, or such portion thereof\nfor which funds are then legally available, on the basis set forth above.\n\n          7D.  Redeemed or Otherwise Acquired Shares to be Retired. Any shares\n               ---------------------------------------------------\nof Series A Stock and\/or Series B Stock redeemed pursuant to this paragraph 7 or\notherwise acquired by the Corporation in any manner whatsoever shall be\ncancelled and shall not under any circumstances be reissued; and the Corporation\nmay from time to time take such appropriate corporate action as may be necessary\nto reduce accordingly the number of authorized shares of Series A Stock and\/or\nSeries B Stock.\n\n     8.   Amendments.  No provision of these terms of the Series A Stock and\/or\n          ----------                                                           \nSeries B Stock may be amended, modified or waived without the written consent or\naffirmative vote of the holders of at least a majority of the then outstanding\ntotal shares of each of the Series A Stock and the Series B Stock, voting as\nseparate series.\n\n            C.  The powers, preferences, rights, restrictions, and other matters\nrelating to the Common Stock are as follows:\n\n        1.  Dividends. Subject to the rights of holders of all classes of stock\n            ---------\nat the time outstanding having prior rights as to dividends, the holders of the\nCommon Stock shall be entitled to receive, when, if and as declared by the Board\nof Directors, out of any assets of the Corporation legally available therefor,\nsuch dividends as may be declared from time to time by the Board of Directors.\n\n        2.  Liquidation. The liquidation rights of the holders of the Common\n            -----------\nStock shall be as set forth in paragraph B4 above.\n\n        3.  Voting. The holder of each share of Common Stock shall have the\n            ------\nright to one vote for each such share of Common Stock and shall be entitled to\nnotice of any stockholders' meeting in accordance with the Bylaws of the\nCorporation, and shall be entitled to vote upon such matters and in such manner\nas may be provided by law.\n\n            FIFTH:  In furtherance and not in limitation of the powers conferred\n            -----                                                               \nby statute, the Board of Directors shall have the power, subject to the\nprovisions of paragraphs B.5 of \n\n                                       16\n\n\n \nArticle FOURTH, both before and after receipt of any payment for any of the\nCorporation's capital stock, to adopt, amend, repeal or otherwise alter the\nBylaws of the Corporation without any action on the part of the stockholders;\nprovided, however, that the grant of such power to the Board of Directors shall\nnot divest the stockholders of nor limit their power, subject to the provisions\nof paragraph C.5 of Article FOURTH, to adopt, amend, repeal or otherwise alter\nthe Bylaws.\n\n          SIXTH:  Elections of directors need not be by written ballot unless\n          -----                                                              \nthe Bylaws of the Corporation shall so provide.\n\n          SEVENTH:  The Corporation reserves the right to adopt, repeal, rescind\n          -------                                                               \nor amend in any respect any provisions contained in this Amended and Restated\nCertificate of Incorporation in the manner now or hereafter prescribed by\napplicable law, and all rights conferred on stockholders herein are granted\nsubject to this reservation.\n\n          EIGHTH:  A director of the Corporation shall, to the full extent\n          ------                                                          \npermitted by the Delaware General Corporation Law as it now exists or as it may\nhereafter be amended, not be liable to the Corporation or its stockholders for\nmonetary damages for breach of fiduciary duty as a director.  Neither any\namendment nor repeal of this Article EIGHTH, nor the adoption of any provision\nof this Amended and Restated Certificate of Incorporation inconsistent with the\nArticle EIGHTH, shall eliminate or reduce the effect of this Article EIGHTH in\nrespect of any matter occurring, or any cause of action, suit or claim that, but\nfor this Article EIGHTH, would accrue or arise, prior to such amendment, repeal\nor adoption of an inconsistent provision.\n\n          NINTH.  Meetings of stockholders may be held within or without the\n          -----                                                             \nState of Delaware, as the Bylaws may provide.  The books of the Corporation may\nbe kept outside the State of Delaware at such place or places as may be\ndesignated from time to time by the Board of Directors or in the Bylaws of the\nCorporation.\n\n                                       17\n\n<\/description><\/sequence><\/type><\/c><\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6979],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9622,9626],"class_list":["post-43335","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-buycom-inc","corporate_contracts_industries-retail__electronics","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\/43335","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=43335"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43335"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43335"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43335"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}