{"id":43726,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stock-purchase-and-sale-agreement-24-7-real-media-inc-imake.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-purchase-and-sale-agreement-24-7-real-media-inc-imake","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-purchase-and-sale-agreement-24-7-real-media-inc-imake.html","title":{"rendered":"Stock Purchase and Sale Agreement &#8211; 24\/7 Real Media Inc., IMAKE Software &#038; Services Inc. and Schaszberger Corp."},"content":{"rendered":"<pre>                        STOCK PURCHASE AND SALE AGREEMENT\n\n                                  BY AND AMONG\n\n                             24\/7 REAL MEDIA, INC.,\n\n                        IMAKE SOFTWARE &amp; SERVICES, INC.,\n\n                                       AND\n\n                            SCHASZBERGER CORPORATION\n\n\n\n\n\n\n\n\n                          DATED AS OF JANUARY 14, 2002\n\n\n\n\n                        STOCK PURCHASE AND SALE AGREEMENT\n\n      THIS STOCK PURCHASE AND SALE AGREEMENT (this \"AGREEMENT\") is made as of\nJanuary 14, 2002 by and among 24\/7 Real Media, Inc., a Delaware corporation (the\n\"SELLER\"), IMAKE Software &amp; Services, Inc., a Maryland corporation (the\n\"COMPANY\"), and Schaszberger Corporation, a Delaware corporation (the\n\"PURCHASER\").\n\n      Seller owns all of the issued and outstanding shares of capital stock in\nthe Company. Seller desires, immediately after the redemption by the Company of\n78 shares of its shares of common stock, par value $1.00 per share, held by the\nSeller (the \"REDEMPTION SHARES\"), to sell all of the capital stock of the\nCompany that remains issued and outstanding after the foregoing redemption (the\n\"SHARES\"), and the Purchaser desires to purchase the Shares, on the terms set\nforth in this Agreement.\n\n      THEREFORE, in consideration of the mutual promises made herein, and\nsubject to the conditions hereinafter set forth, the parties agree as follows:\n\n                                    ARTICLE I\n\n                                PURCHASE AND SALE\n\n      SECTION 1.01 PURCHASE AND SALE OF THE SHARES. Upon the terms and subject\nto the conditions of this Agreement and in exchange for payment of the Purchase\nPrice (as hereinafter defined), at the Closing, (i) the Seller will sell,\nassign, convey, transfer and deliver to the Company free and clear of all liens,\npledges, security interests, options, encumbrances, charges, agreements or\nclaims of any kind whatsoever (collectively, \"Liens\"), and the Company will\nredeem and accept , the Redemption Shares, and (ii) the Seller will sell assign,\nconvey, transfer and deliver to the Purchaser free and clear of all Liens, and\nthe Purchaser will purchase and accept, the Shares.\n\n      SECTION 1.02 PURCHASE PRICE.\n\n      The total consideration (the \"PURCHASE PRICE\") to be paid by the Company\nto the Seller for the Redemption Shares, and by the Purchaser to the Seller for\nthe Shares shall consist of the following:\n\n      (a) SHARE CONSIDERATION. Delivery to the Seller on the Closing Date (as\ndefined below) of 995,000 shares of the Series A Convertible Preferred Stock,\npar value $0.01 per shares, having the terms and conditions set forth in the\nAmended and Restated Certificate of Incorporation attached hereto as EXHIBIT A\n(the \"RESTATED CERTIFICATE\"), of the Purchaser (the \"PREFERRED STOCK\"), which\nshall on the Closing Date represent 19.9% of the total issued and outstanding\ncommon stock of the Purchaser, on an as-converted basis.\n\n\n\n      (b) NOTE CONSIDERATION. Delivery to the Seller on the Closing Date of a\nsecured note in the form attached as EXHIBIT B hereto (the \"PURCHASER NOTE\"),\nwhich shall be in a face amount equal to $2,000,000 in consideration of the\nRedemption Shares. Principal, along with interest thereon, which shall accrue at\na rate equal to 6% per annum, shall be due on January 11, 2006.\n\n      (c) NET REIMBURSEMENT OF PAYROLL ADVANCE. Delivery to the Seller on the\nClosing Date of a cash payment in the amount of $479,295.46 (the \"CASH\nADJUSTMENT\"), representing the reimbursement by Purchaser of payroll expenses\nadvanced by Seller.\n\n      (d) EARN OUT. Payment of the Earn Out as provided in Section 2.01.\n\n      SECTION 1.03 CLOSING. The consummation of the transactions contemplated by\nthis Agreement (the \"CLOSING\") shall be held at the offices of Proskauer Rose\nLLP, 1585 Broadway, New York, NY 10036 at 10:00 A.M., New York City time, on\nJanuary 11, 2002 following the satisfaction or waiver by the applicable party of\nthe conditions to Closing set forth in Article V, or at such other time, date\nand place as may be mutually agreed to in writing by the parties. The date on\nwhich the Closing actually occurs is referred to herein as the \"CLOSING DATE.\"\n\n      SECTION 1.04 DELIVERY AT CLOSING. Upon the terms and subject to the\nconditions of this Agreement, at the Closing, (i) the Seller will assign,\ntransfer and deliver the Shares to the Purchaser free and clear of all Liens,\n(ii) the Seller will assign, transfer and deliver the Redemption Shares to the\nCompany free and clear of all Liens, (iii) the Seller will deliver to the\nPurchaser the certificates, documents, agreements and instruments referred to in\nSection 6.01, (iv) the Purchaser will deliver to the Seller stock certificates\nreflecting the Preferred Stock, (v) the Purchaser will deliver to the Seller a\nduly executed Purchaser Note, and (vi) the Purchaser will deliver to the Seller\nthe various certificates, documents, and instruments referred to in Section\n6.02.\n\n                                   ARTICLE II\n\n                       OTHER PAYMENTS AND\/OR CONSIDERATION\n\n      SECTION 2.01 EARN OUT.\n\n      (a) The Company shall pay the following monthly payments (which shall be\ndeemed to include any offsets permitted under this Agreement) to the Seller (the\n\"EARN OUT\") within 30 days of the last day of each month from January 2002\nthrough December 2004, in each case with respect to the previous month (the\n\"EARN OUT PERIOD\"):\n\n            (i) for each month from January 2002 through December 2002, 5% of\nthe monthly Gross Revenue (as defined below); and\n\n            (ii) for each month from January 2003 through December 2004, 10% of\nthe monthly Gross Revenue.\n\n\n                                       2\n\n\n      For the purposes of this Section 2.01, \"GROSS REVENUE\" for each calendar\nmonth shall mean the gross revenue earned by the Company during such month, as\naccounted for utilizing generally accepted accounting principles (\"GAAP\"), less\nany increases in gross revenue directly attributable to acquisitions or other\nsimilar transactions by the Company. The parties agree that any adjustment to\nGross Revenue based on contributions from other entities acquired by the Company\nshall be limited to the historical run rate of any such acquired entity, and no\nadjustment shall be made as a result of increases in such entity's revenue run\nrate after the date of acquisition. In the event of any such transactions\nrequiring any such adjustments, the parties agree to cooperate in a commercially\nreasonable manner and in good faith to determine the appropriate amount of the\nforegoing adjustments for purposes of calculating the proper amount of Gross\nRevenue in respect of which Earn Out payments shall be due.\n\n      (b) All Earn Out payments are due within 30 days following the end of the\ncalendar month in which they are earned. The first Earn Out payment is due\nwithin 30 days of January 31, 2002.\n\n      (c) Notwithstanding any provision in this Agreement to the contrary, in no\nevent shall the aggregate Earn Out payments to the Seller exceed $4,000,000 (the\n\"MAXIMUM EARN OUT\").\n\n      (d) The Company shall deliver to the Seller during the Earn Out Period (i)\nwithin 60 days after the close of each calendar year, audited financial\nstatements of the Company prepared by an accounting firm reasonably acceptable\nto the Purchaser and the Seller, (ii) within 30 days of the end of each calendar\nquarter, the unaudited balance sheet and income statement of the Company and\n(iii) within 30 days of the end of each calendar month, a revenue statement,\nincluding the Gross Revenue, for such calendar month. At the end of each\ncalendar year, an accounting of the Earn Out payments shall be made based on the\naggregate Gross Revenue reported in the audited financial statements for such\ncalendar year. Within 30 days after completion of the audited financial\nstatements for each calendar year, (x) any additional Earn Out payments\ndetermined to be due to the Seller shall be paid in cash by the Company to the\nSeller, and (y) any Earn Out overpayments determined to be made by the Company\nto the Seller shall be paid in cash by the Seller to the Company; provided,\nhowever, that the Purchaser shall be entitled to offset such overpayments\nagainst any (i) future Earn Out payments that may become due, or (ii) other\nobligations payable by the Purchaser to the Seller.\n\n      (e) The Purchaser shall have the right to buy out the Earn Out payments\n(the \"BUY OUT OPTION\"), at any time, at a price equal to the difference between\nthe Maximum Earn Out and the aggregate Earn Out payments previously made to the\nSeller. If the Purchaser exercises the Buy Out Option, the right of Seller to\nreceive the Flip Fee (as defined in Section 2.02 below) and the Warrants (as\ndefined in Section 2.03 below) shall automatically terminate.\n\n      (f) The Seller shall be entitled to engage an independent auditor once per\nyear at its sole cost and expense to inspect and audit Company's records to\nverify the accuracy \n\n\n                                       3\n\n\nof the Earn Out payments made to the Seller pursuant to this Article II. The\nauditor shall issue a report of findings to each of the Company, Purchaser and\nSeller. Audits shall be performed at reasonable times, upon reasonable notice\nand without causing any unreasonable disturbance of the Company's operations. In\nthe event of any discrepancy or disagreement between the findings of the auditor\nengaged by the Seller and the findings of the certified public accounting firm\nretained by the Company, the parties shall cooperate in a commercially\nreasonable manner and in good faith to resolve any such discrepancy or\ndisagreement.\n\n      (g) The Purchaser covenants that it shall not sell, assign or otherwise\ntransfer all of any part of the business of the Company that is subject to the\nEarn Out payments unless such sale, assignment or transfer is pursuant to a bona\nfide transaction with a third party unrelated to the Company or Mark L.\nSchasberger (\"MLS\") at fair market value and such third party agrees to take\nsuch part of the business subject to the Earn Out payments required to be made\nto the Seller hereunder. The Purchaser covenants that it shall not take any\naction in which the primary purpose is to subvert Seller's ability to receive\nEarn Out payments.\n\n      SECTION 2.02 FLIP FEE. In the event the Purchaser shall sell (a) to any\nsingle entity (including any affiliates) more than a 50% ownership interest in\nthe Company, or (b) a majority of the assets of the Company or the Purchaser, in\neach case within 12 months of the Closing Date, then the Purchaser shall pay to\nthe Seller, in addition to any payments to Seller as holder of Preferred Stock\nand prior to any distributions to any other person, the sum of (i) an amount\nequal to the difference between $3,000,000 and the aggregate Earn Out payments\npreviously made to the Seller, and (ii) 5% of any proceeds received by the\nPurchaser above $3,000,000 (the sum of clauses (i) through (ii) shall be\nreferred to as the \"FLIP FEE\"). Upon the payment of the Flip Fee to the Seller,\nany rights of Seller to receive any further Earn Out payments under Section 2.01\nand Warrants under Section 2.03 shall automatically terminate.\n\n      SECTION 2.03 WARRANT.\n\n      (a) The Purchaser shall issue to the Seller a Warrant, in the form of\nEXHIBIT C hereto (the \"WARRANT\").\n\n      SECTION 2.04 LICENSE.\n\n      (a) Subject to Sections 2.04(b), 2.04(c) and 2.04(d), the Seller shall\ngrant to the Purchaser a perpetual, worldwide, royalty-free, nonexclusive and\nnon-transferable license to use Seller's patent for targeted advertising (Patent\n#6,026,368) (the \"LICENSE\"). The License shall not require the payment of any\nroyalties or other payments by Purchaser to Seller, other than as set forth in\nthis Agreement.\n\n      (b) In the event of a Change in Control Event (as defined below) of\nPurchaser, the License shall terminate, unless the Purchaser agrees to pay a\ncommercially reasonable fee for the renewal of the License and the parties reach\nagreement as to other mutually agreed terms and conditions of a new license. For\nthe purposes of this Section, a \n\n\n                                       4\n\n\n\"CHANGE IN CONTROL EVENT\" shall be an event in which a single entity (including\nany affiliates) acquires more than a 50% ownership interest in a company or its\nparent entity.\n\n      (c) In the event of a Change in Control Event of Seller, or if Seller\nceases to exist or commences a case or other proceeding under any federal\nbankruptcy, insolvency, liquidation or similar law, the License shall\nautomatically become perpetual to the Company and cannot be transferred to any\nparty, including any affiliates.\n\n      (d) The License shall not include the right to grant sublicenses and shall\nbe limited to use by the Company solely in connection with the business of the\nCompany. \n\n      (e) For tax purposes, the parties hereto agree that $50,000 of the\npurchase price is allocable to the License and that the Purchaser, the Seller\nand the Company shall prepare and file all of their respective Tax Returns\nconsistent with this allocation.\n\n                                  ARTICLE III\n\n                         REPRESENTATIONS AND WARRANTIES\n\n      SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller\nrepresents and warrants to the Purchaser that:\n\n      (a)   ORGANIZATION AND GOOD STANDING.\n\n            (i) The Seller is a corporation duly organized, validly existing and\nin good standing under the laws of the State of Delaware and it has all\nrequisite corporate power and authority to own and lease the properties and\nassets it currently owns and leases and to carry on its business as such\nbusiness is currently conducted.\n\n            (ii) The Company is a close corporation duly incorporated and\nexisting under and by virtue of the laws of the State of Maryland and is in good\nstanding with the State of Maryland Department of Assessments and Taxation, and\nhas the requisite corporate power and corporate authority to own, lease and\noperate its assets and properties and to conduct its business as it is now being\nconducted. The Company is duly qualified or licensed as a foreign corporation to\ndo business, and is in good standing under the laws of those jurisdictions\nlisted on SCHEDULE 3.01(a)(ii) hereto, constituting each jurisdiction in which\nthe conduct of its business or the ownership, leasing or operation of its assets\nand properties requires such qualification, except where the failure to be so\nqualified would not, individually or in the aggregate, have a material adverse\neffect on the business, results of operations or financial condition of the\nCompany, taken as a whole, or on the ability of the parties to consummate the\ntransactions contemplated by this Agreement (a \"COMPANY MATERIAL ADVERSE\nEFFECT\"). The Seller has heretofore furnished to the Purchaser a complete and\ncorrect copy of the Company's charter (certified by the Secretary of State of\nthe State of Maryland) (the \"CHARTER\") and By-Laws, each as amended to date.\nSuch Charter and By-Laws are in full force and effect. The Company is not in\nviolation of any of the provisions of its Charter or By-Laws.\n\n\n                                       5\n\n\n      (b) OWNERSHIP AND DELIVERY OF THE SHARES. The Seller is, and immediately\nprior to the Closing will be, the record and beneficial owner of all the issued\nand outstanding Shares, free and clear of any and all Liens. On the Closing\nDate, the Seller will have the full right, power and authority to assign,\ntransfer and deliver the Shares as provided in this Agreement, and such delivery\nwill convey to the Purchaser lawful, valid and marketable title to such Shares,\nfree and clear of any and all Liens. Upon consummation of the transactions\ncontemplated by this Agreement, the Shares will be fully paid and nonassessable.\n\n      (c)   AUTHORITY RELATIVE TO THIS AGREEMENT.\n\n            (i) The Seller has all corporate power and authority to execute and\ndeliver this Agreement and to perform its obligations hereunder and to\nconsummate the transactions contemplated hereby, as well as all other\nagreements, certificates and documents executed or delivered, or to be executed\nor delivered, by the Seller in connection herewith (collectively, with this\nAgreement, the \"SELLER DOCUMENTS\"). The execution and delivery of this Agreement\nand the consummation by the Seller of the transactions contemplated hereby have\nbeen duly and validly authorized by all necessary corporate action on the part\nof the Seller, and no other corporate proceedings are necessary to authorize\nthis Agreement or to consummate the transactions contemplated hereby. Each of\nthe Seller Documents to which the Seller is, or will be, a party has been, or\nwill be, duly and validly executed and delivered by the Seller, and, assuming\nthe due authorization, execution and delivery of the Seller Documents by the\nother parties, are (or when executed and delivered will be) legal, valid and\nbinding obligations of the Seller, except as limited by (i) applicable\nbankruptcy, insolvency, reorganization, moratorium and other laws of general\napplication affecting the enforcement of creditors' rights generally and (ii)\ngeneral principles of equity, regardless of whether asserted in a proceeding in\nequity or at law.\n\n            (ii) The Company has all corporate power and authority to execute\nand deliver this Agreement and to perform its obligations hereunder and to\nconsummate the transactions contemplated hereby, as well as all other\nagreements, certificates and documents executed or delivered, or to be executed\nor delivered, by the Company in connection herewith (collectively, with this\nAgreement, the \"COMPANY DOCUMENTS\"). The execution and delivery of this\nAgreement by the Company and the consummation by the Company of the transactions\ncontemplated hereby have been duly and validly authorized by all necessary\ncorporate action on the part of the Company, and no other corporate proceedings\nare necessary to authorize this Agreement or to consummate the transactions\ncontemplated hereby (except as set forth in clause (i) above). Each of the\nCompany Documents to which the Company is, or will be, a party has been, or will\nbe, duly and validly executed and delivered by the Company, and, assuming the\ndue authorization, execution and delivery of the Company Documents by the other\nparties, are (or when executed and delivered will be) legal, valid and binding\nobligations of the Company, except as limited by (i) applicable bankruptcy,\ninsolvency, reorganization, moratorium and other laws of general application\naffecting the enforcement of creditors' rights generally and (ii) general\nprinciples of equity, regardless of whether asserted in a proceeding in equity\nor at law.\n\n\n                                       6\n\n\n      (d)   NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.\n\n            (i) The execution, delivery and performance by the Seller of this\nAgreement do not, and the performance of this Agreement by the Seller will not,\n(A) conflict with or violate the certificate of incorporation or by-laws of the\nSeller; (B) conflict with or violate any law, rule, regulation, order, judgment\nor decree applicable to the Seller or by which any of its properties is bound or\naffected; or (c) result in any material breach of or constitute a material\ndefault (or event which with notice or lapse of time, or both, would become a\ndefault) under, or impair the Seller's rights or alter the rights or obligations\nof any third party under, or give to others any rights of termination,\namendment, acceleration or cancellation of, or result in the creation of a Lien\non any of the properties or assets of the Seller pursuant to, any note, bond,\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or\nother instrument or obligation to which the Seller is a party or by which the\nSeller or any of its properties is bound or affected, except where such conflict\nor violation would not have a material adverse effect on the ability of the\nparties to consummate the transactions contemplated by this Agreement (a \"SELLER\nMATERIAL ADVERSE EFFECT\").\n\n            (ii) Except as set forth in SCHEDULE 3.01(d)(ii), the execution and\ndelivery of this Agreement by the Company do not, and the performance of this\nAgreement by the Company will not, (A) conflict with or violate the Charter or\nBy-Laws of the Company; (B) conflict with or violate any law, rule, regulation,\norder, judgment or decree applicable to the Company or by which any of its\nproperties is bound or affected; or (C) result in any material breach of or\nconstitute a material default (or an event which with notice or lapse of time or\nboth would become a default) under, or impair the Company's rights or alter the\nrights or obligations of any third party under, or give to others any rights of\ntermination, amendment, acceleration or cancellation of, or result in the\ncreation of a Lien on any of the properties or assets of the Company pursuant\nto, any note, bond, mortgage, indenture, contract, agreement, lease, license,\npermit, franchise or other instrument or obligation to which the Company is a\nparty or by which the Company or any of its properties is bound or affected\nexcept where such conflict, violation, breach, default or rights of termination\nwould not have a Company Material Adverse Effect.\n\n            (iii) The execution, delivery and performance of this Agreement by\nthe Seller and by the Company will not require any consent, approval,\nauthorization or permit of, or filing with or notification to, any governmental\nor regulatory authority, except where the failure to obtain such consents,\napprovals, authorizations or permits, or to make such filings or notifications,\nwould not prevent or delay consummation of the transactions contemplated hereby\nor otherwise prevent either of the Seller or the Company from performing its\nobligations under this Agreement.\n\n      (e)   CAPITALIZATION. Immediately prior to the Closing, the authorized\ncapital stock of the Company will consist of 5,000 shares of common stock, par\nvalue $1.00 per share, of which 196 shares will be issued and outstanding. There\nis no outstanding right, subscription, warrant, call, option or other agreement\nor arrangement of any kind to purchase or otherwise to receive from the Company\nany Shares or any other security of the Company; there is no outstanding\nsecurity of any kind convertible into or \n\n\n                                       7\n\n\nexchangeable for any such Shares; and there is no voting trust or other\nagreement or understanding to which the Company is a party or is bound with\nrespect to the voting of the Shares. All of the Shares are duly authorized,\nvalidly issued and outstanding, fully paid and non-assessable.\n\n      (f)   SUBSIDIARIES AND AFFILIATES. The Company has no direct or indirect\nsubsidiaries, whether or not wholly owned, and has no equity interest in any\ncorporation, partnership, joint venture or other entity.\n\n      (g)   NO LITIGATION.\n\n            (i) No action is pending or, to the knowledge of the Seller,\nthreatened against the Seller which (A) questions or involves the legality,\nvalidity or enforceability of any of the Seller's obligations under any Seller\nDocuments or the consummation of the transactions contemplated by this Agreement\nor thereby or (B) seeks to prevent, delay or otherwise adversely affect the\nconsummation by the Seller of the sale of the Shares.\n\n            (ii) Except as disclosed on SCHEDULE 3.01(g), there are no actions,\nsuits, proceedings, claims or investigations pending or, to the knowledge of the\nSeller, threatened against either the Company or its assets before any court,\narbitrator or governmental entity that (A) questions or involves the legality,\nvalidity or enforceability of any of the Company's obligations under any Company\nDocuments or the consummation of the transactions contemplated by this Agreement\nor thereby; (B) seeks to prevent, delay or otherwise adversely affect the\nconsummation by the Company of the sale of the Shares; or (C) is reasonably\nlikely to have a Company Material Adverse Effect.\n\n      (h)   CHANGES. Except as disclosed on SCHEDULE 3.01(h), to the best of\nSeller's knowledge, (i) since December 1, 2001, the Seller has not (A) collected\nany accounts receivables owed to the Company, (B) removed any cash from the\nCompany, and\/or (C) materially changed the assets, liabilities or financial\ncondition of the Company, and (ii) during the period from the date the Seller\nacquired the stock of the Company through the Closing, neither the Seller nor\nany of Seller's employees or authorized representatives has (A) granted or\nconsented to the grant of any Lien against the Company's properties or assets or\notherwise encumbered any such property, or (B) created any material liability of\nthe Company without the Company's knowledge.\n\n      (i)   TAXES.\n\n            (i) From the date the Seller acquired the stock of the Company, the\nCompany has filed, or been included in, all Tax Returns required to be filed\nthrough the date hereof with respect to the Seller's period of ownership of the\nCompany and will file, or be included in, any such Tax Returns required to be\nfiled on or prior to the Closing Date. All such Tax Returns were, or will be,\nfiled in a timely manner (subject to any applicable extensions) and all such Tax\nReturns are correct and complete in all material respects.\n\n\n                                       8\n\n\n            (ii) From the date Seller acquired the stock of the Company, the \nCompany has not been a member of any affiliated group filing a consolidated \nfederal income Tax Return (other than a group the common parent of which is \nthe Seller). The Company has no liability for the Taxes of any other person \nas defined in Section 7701(a)(1) of the Code under Treas. Reg. Section \n1.1502-6 (or any similar provision of state, local, or foreign law), as a \ntransferee or successor, by contract, or otherwise that accrued during the \nperiod, or are allocable to the period, beginning on the date the Seller \nacquired the stock of the Company;\n\n            (iii) There are no liens or encumbrances related to Taxes on any of\nthe assets of the Company (other than for current Taxes not yet due and payable)\nwith respect to the Seller's period of ownership of the Company that accrued\nduring the period, or are allocable to the period, beginning on the date the\nSeller acquired the stock of the Company; and\n\n            (iv) No Tax is required to be withheld pursuant to Section 1445 of\nthe Code as a result of any transaction contemplated in this Agreement.\n\n      For purposes of this Agreement (i) \"TAX\" or \"TAXES\" means any federal,\nstate, local or foreign net or gross income, gross receipts, sales, use, ad\nvalorem, transfer, franchise, license, withholding, payroll, employment, excise,\nseverance, stamp, occupation, premium, personal property, real property, capital\nstock, profits, social security (or similar), unemployment, disability,\nregistration, value added, estimated, alternative or add-on minimum taxes,\ncustoms duties or other taxes, fees, assessments or charges of any kind\nwhatsoever, together with any interest and any penalties, additions to tax or\nadditional amounts imposed by any governmental authority, whether as a primary\nobligor or as a result of being a \"transferee\" (within the meaning of Section\n6901 of the Code or any other applicable law) of another person or a member of\nan affiliated, consolidated, unitary or combined group and (ii) \"TAX RETURN\"\nmeans any return, declaration, report, claim for refund, or information return\nor statement relating to Taxes, including any schedule or attachment thereto,\nand including any amendment thereof.\n\n      (j)   AGREEMENTS AFFECTING THE SHARES. The Seller is not a party to any\nagreement (i) governing its right to vote or transfer the Shares, or (ii)\npurporting to grant any party any preemptive right, right of first refusal or\nregistration rights with respect to the Shares.\n\n      (k)   BROKERAGE OR FINDERS FEES. Neither the Seller nor any of its\naffiliates is a party to any agreement, understanding, or arrangement, and has\nnot committed any act which might give rise to any valid claim against the\nPurchaser, the Company or any of their respective affiliates, for any fee,\ncommission or other payment.\n\n      (l)   SECURITIES LAW MATTERS.\n\n            (i) The Seller has such knowledge and experience in financial and\nbusiness matters that the Seller is capable of evaluating the merits and risks\nof an \n\n\n                                       9\n\n\ninvestment in the Preferred Stock. The Seller is an \"accredited investor\" as\nsuch term is defined in Rule 502(a) of Regulation D promulgated under the\nSecurities Act of 1933, as amended (the \"SECURITIES ACT\")\n\n            (ii) The Seller has or has been furnished with such information as\nthe Seller has requested of the Purchaser regarding the Purchaser, the Preferred\nStock and the shares of common stock of the Purchaser into which the Preferred\nStock is convertible (the \"CONVERSION SHARES\") and has had an opportunity to\ndiscuss with the management of the Purchaser and to become informed about the\nobjectives of the Purchaser and its business plan, consolidated financial\ncondition and results of operations.\n\n            (iii) The Seller is acquiring the Preferred Stock for the Seller's\nown account, and not as a nominee or agent for any other persons or entities,\nand for investment and not with a view to distribution or resale thereof. The\nSeller has been advised and understands and agrees that neither the Preferred\nStock nor the Conversion Shares will be registered under the Securities Act, nor\nqualified under any state securities laws, on the basis, among others, that no\ndistribution or public offering of the Preferred Stock or of the Conversion\nShares is to be effected in connection with the transactions contemplated\nherein.\n\n            (iv) The Seller acknowledges that it has been informed and\nunderstands that no public market for the Preferred Stock or the Conversion\nShares currently exists and that there is no assurance that any such market will\ndevelop or exist in the future. Even if such a public market does develop,\nneither the Preferred Stock nor the Conversion Shares may be sold or transferred\nexcept in compliance with the Securities Act or an exemption thereunder. There\nis no assurance that any exemption from registration will become available to\npermit resale of the Preferred Stock or the Conversion Shares.\n\n            (v) The Seller acknowledges and agrees that the certificate or\ncertificates representing the Preferred Stock (and, upon the conversion thereof,\nthe Conversion Shares) shall contain restrictive legends in the form set forth\nin Rule 502(d)(3) of Regulation D promulgated under the Securities Act or\nrestrictive legends that are substantially similar thereto. The Seller\nacknowledges and agrees that, unless and until the Preferred Stock or the\nConversion Shares become eligible for resale under the Act, any proposed sale or\nother transfer or disposition of any of the Preferred Stock or the Conversion\nShares, other than pursuant to an effective registration statement under the\nSecurities Act, may not be made unless and until the Seller has furnished to the\nPurchaser an opinion of counsel, reasonably acceptable to the Purchaser and its\ncounsel, to the effect that the proposed sale or other transfer or disposition\nis exempt from registration under the Securities Act.\n\n      SECTION 3.02 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The\nPurchaser hereby represents and warrants to the Seller that:\n\n\n                                       10\n\n\n      (a)   ORGANIZATION AND QUALIFICATION; ORGANIZATIONAL DOCUMENTS.\n\n            (i) The Purchaser has no direct or indirect subsidiaries other than\nthose listed in SCHEDULE 3.02(a). Except as disclosed in SCHEDULE 3.02(a), the\nPurchaser owns, directly or indirectly, all of the capital stock of each\nsubsidiary free and clear of any Liens, and all the issued and outstanding\nshares of capital stock of each subsidiary are validly issued and are fully\npaid, non-assessable and free of preemptive and similar rights.\n\n            (ii) The Purchaser is a corporation duly organized, validly existing\nand in good standing under the laws of the State of Delaware, and has the\nrequisite corporate power and corporate authority to own, lease and operate its\nassets and properties and to conduct its business as it is now being conducted.\nThe Purchaser is duly qualified or licensed as a foreign corporation to do\nbusiness, and is in good standing, in each jurisdiction in which the conduct of\nits business or the ownership, leasing or operation of its assets and properties\nrequires such qualification, except for such failures to be so duly qualified or\nlicensed and in good standing that would not have a material adverse effect on\nthe business, results of operations or financial condition of the Purchaser,\ntaken as a whole, or on the ability of the parties to consummate the\ntransactions contemplated by this Agreement (a \"PURCHASER MATERIAL ADVERSE\nEFFECT\").\n\n            (iii) The Purchaser has heretofore furnished to the Seller a\ncomplete and correct copy of the Purchaser's certificate of incorporation\n(certified by the Secretary of State of the State of Delaware) and of the\nPurchaser's by-laws, each as amended to date. Such certificates of incorporation\nand by-laws are in full force and effect. The Purchaser is not in violation of\nany of the provisions of its certificate of incorporation or any of the\nprovisions of its by-laws.\n\n      (b)   AUTHORITY RELATIVE TO THIS AGREEMENT.\n\n      The Purchaser has all necessary rights, power and authority to execute and\ndeliver this Agreement and to perform its obligations hereunder and to\nconsummate the transactions contemplated hereby, as well as all other\nagreements, certificates and documents executed or delivered, or to be executed\nor delivered, by the Purchaser in connection herewith (collectively, with this\nAgreement, the \"PURCHASER DOCUMENTS\"). The execution and delivery of this\nAgreement by the Purchaser and the consummation by the Purchaser of the\ntransactions contemplated hereby have been duly and validly authorized by all\nnecessary corporate action on the part of the Purchaser, and no other corporate\nproceedings on the part of the Purchaser are necessary to authorize this\nAgreement or to consummate the transactions so contemplated hereby. Each of the\nPurchaser Documents to which the Purchaser is, or will be, a party has been, or\nwill be duly and validly executed and delivered by the Purchaser, and, assuming\nthe due authorization, execution and delivery of the Purchaser Documents by the\nother parties, are (or when executed and delivered will be) legal, valid and\nbinding obligations of the Purchaser, except as limited by (i) applicable\nbankruptcy, insolvency, reorganization, moratorium and other laws of general\napplication affecting the enforcement of creditors' rights generally and (ii)\n\n\n                                       11\n\n\ngeneral principles of equity, regardless of whether asserted in a proceeding in\nequity or at law.\n\n      (c)   NO CONFLICT, REQUIRED FILINGS AND CONSENTS.\n\n            (i) The execution and delivery of this Agreement by the Purchaser do\nnot, and the performance of this Agreement by the Purchaser will not, (A)\nconflict with or violate the certificate of incorporation or by-laws of the\nPurchaser; (B) conflict with or violate any law, rule, regulation, order,\njudgment or decree applicable to the Purchaser or by which any of the\nPurchaser's properties is bound or affected; or (C) result in any breach of or\nconstitute a default (or an event which with notice or lapse of time or both\nwould become a default) under, or impair the Purchaser's rights or alter the\nrights or obligations of any third party under, or give to others any rights of\ntermination, amendment, acceleration or cancellation of, or result in the\ncreation of a Lien on any of the properties or assets of the Purchaser pursuant\nto, any note, bond, mortgage, indenture, contract, agreement, lease, license,\npermit, franchise or other instrument or obligation to which the Purchaser is a\nparty or by which the Purchaser or any of its properties is bound or affected,\nexcept in any such case for any such breaches, defaults or other occurrences\nthat would not have a the Purchaser Material Adverse Effect.\n\n            (ii) The execution, delivery and performance of this Agreement by\nthe Purchaser will not require any consent, approval, authorization or permit\nof, or filing with or notification to, any governmental or regulatory authority,\nexcept where the failure to obtain such consents, approvals, authorizations or\npermits, or to make such filings or notifications would not have a Purchaser\nMaterial Adverse Effect.\n\n      (d) ISSUANCE OF THE PREFERRED STOCK. The Preferred Stock is duly\nauthorized and, when issued in accordance with this Agreement, will be duly and\nvalidly issued, fully paid and nonassesable, free and clear of all Liens and\nshall not be subject to preemptive rights or similar rights of stockholders. The\nPurchaser has reserved from its duly authorized capital stock a number of shares\nof common stock for issuance of the Preferred Stock and the Warrants pursuant to\nSection 2.03.\n\n      (e) CAPITALIZATION. The number of shares and type of all authorized,\nissued and outstanding capital stock, options and other securities of the\nPurchaser (whether or not presently convertible or exchangeable for shares of\ncapital stock of the Purchaser) is set forth in SCHEDULE 3.02(e). All\noutstanding shares of capital stock of the Purchaser are duly authorized,\nvalidly issued, fully paid and nonassessable and have been issued in compliance\nwith all applicable securities laws. Except as disclosed in SCHEDULE 3.02(e),\nthere are no outstanding options, warrants, script rights to subscribe to, calls\nor commitments of any character whatsoever relating to, or securities, rights or\nobligations convertible into or exchangeable for, or giving any person any right\nto subscribe for or acquire, any shares of common stock, or contracts,\ncommitments, understandings or arrangements by which the Purchaser or any\nsubsidiary is or may become bound to issue additional shares of common stock, or\nsecurities or rights convertible or exchangeable into shares of common stock.\nExcept for the Preferred Stock and the Warrants, there are no anti-dilution or\nprice adjustment provisions contained in any security issued by the \n\n\n                                       12\n\n\nPurchaser (or in any agreement providing rights to security holders) and the\nissuance and sale of the Preferred Stock (including the Warrants) will not\nobligate the Purchaser to issue shares of common stock or other securities to\nany person (other than the Seller) and will not result in a right of any holder\nof Purchaser securities to adjust the exercise, conversion, exchange or reset\nprice under such securities.\n\n      (f) LITIGATION. Except as disclosed on SCHEDULE 3.02(f), there are no\nactions, suits, proceedings, claims or investigations pending or, to the\nknowledge of the Purchaser, threatened against either the Purchaser or any of\ntheir respective assets before any court, arbitrator or governmental entity that\nis reasonably likely to have a Purchaser Material Adverse Effect. There are no\nactions, suits or proceedings pending or, to the knowledge of the Purchaser,\nthreatened against the Purchaser that seek to prevent or challenge, or seek\ndamages in connection with, the transactions contemplated by any of the\nPurchaser Documents or otherwise arising out of or in any way related to any of\nthe Purchaser Documents.\n\n      (g) OPERATING HISTORY. Purchaser was formed on February 22, 2001. Except\nas listed on SCHEDULE 3.02(g), the Purchaser has no assets or liabilities as of\nthe Closing Date, other than funding provided in respect of the Closing.\n\n      (h) BROKER'S FEES. Except for the fees described on SCHEDULE 3.02(h), no\nbrokerage or finder's fees or commissions are or will be payable by the\nPurchaser to any broker, financial advisor or consultant, finder, placement\nagent, investment banker, bank or other person with respect to the transactions\ncontemplated by this Agreement, and the Purchaser has not taken any action that\nwould cause any Seller to be liable for any such fees or commissions.\n\n      (i) PRIVATE PLACEMENT. Neither the Purchaser nor any person acting on the\nPurchaser's behalf has sold or offered to sell or solicited any offer to buy the\nPreferred Stock by means of any form of general solicitation or advertising.\nNeither the Purchaser nor any of its affiliates nor any person acting on the\nPurchaser's behalf has, directly or indirectly, at any time within the past six\nmonths, made any offer or sale of any security or solicitation of any offer to\nbuy any security under circumstances that would (i) eliminate the availability\nof the exemption from registration under Regulation D under the Securities Act\nin connection with the offer and sale of the Preferred Stock as contemplated\nhereby or (ii) cause the offering of the Purchase Shares pursuant to this\nAgreement to be integrated with prior offerings by the Purchaser for purposes of\nany applicable law, regulation or shareholder approval provisions. The Purchaser\nis not, and is not an affiliate of, an \"investment company\" within the meaning\nof the Investment Company Act of 1940, as amended. The Purchaser is not a United\nStates real property holding corporation within the meaning of the Foreign\nInvestment in Real Property Tax Act of 1980.\n\n      (j) REGISTRATION RIGHTS. Except as described on SCHEDULE 3.02(j), the\nPurchaser has not granted or agreed to grant to any person (other than the\nSeller) any rights (including \"piggy-back\" registration rights) to have any\nsecurities of the Purchaser \n\n\n                                       13\n\n\nregistered with the Securities and Exchange Commission or any other governmental\nauthority that have not been satisfied.\n\n      (k) APPLICATION OF TAKEOVER PROTECTIONS. Except as disclosed on SCHEDULE\n3.02(k), there is no control share acquisition, business combination, poison\npill (including any distribution under a rights agreement) or other similar\nanti-takeover provision under the Purchaser's certificate of incorporation (or\nsimilar charter documents) or the laws of its state of incorporation that is or\ncould become applicable to the Seller as a result of the Seller and the\nPurchaser fulfilling their obligations or exercising their rights under the\nPurchaser Documents, the Seller Documents and the Company Documents\n(collectively, the \"TRANSACTION DOCUMENTS\"), including without limitation the\nPurchaser's issuance of the Preferred Stock and the Seller's ownership of the\nSecurities.\n\n      (l) SENIORITY. As of the date of this Agreement, no indebtedness of the\nPurchaser is senior to the Purchaser Note in right of payment, whether with\nrespect to interest or upon liquidation or dissolution, or otherwise, other than\nindebtedness secured by purchase money security interests (which is senior only\nas to underlying assets covered thereby) and capital lease obligations (which is\nsenior only as to the property covered thereby).\n\n                                   ARTICLE IV\n\n                                    COVENANTS\n\n      SECTION 4.01 COVENANTS OF THE SELLER AND THE COMPANY. Each of the Seller\nand the Company covenants and agrees that between the date hereof and the\nClosing:\n\n      (a) ACTIONS. Neither the Seller nor the Company will take any action that\nwould cause any of their respective representations and warranties in any Seller\nDocuments or Company Documents, as the case may be, not to be true and correct\nin all material respects on and as of the Closing Date with the same force and\neffect as if such representations and warranties had been made on and as of the\nClosing Date.\n\n      (b) ACCESS BY THE PURCHASER. The Purchaser and its representatives and\nadvisors shall, upon prior written notice to the Company, have reasonable access\nduring normal business hours to the Company's assets, premises, books and\nrecords, key employees and accountants, including the work papers of the\nCompany's accountants, and the Seller shall furnish the Purchaser with such\ninformation and copies of such documents as the Purchaser may reasonably\nrequest.\n\n      (c) CONDUCT OF BUSINESS. The business of the Company shall be conducted in\nall material respects in the ordinary course, consistent with the present\nconduct of its business, and the Company shall use commercially reasonable\nefforts to maintain, preserve and protect the assets and goodwill of the\nCompany. Without limiting the generality of the foregoing, the Company shall\nnot, without the prior written consent of the Purchaser, take or commit to take\nany of following actions except as disclosed on SCHEDULE 4.01(c):\n\n\n                                       14\n\n\n            (i) amend its bylaws or charter;\n\n            (ii) issue any additional shares of stock, or issue, sell or grant\nany option or right to acquire or otherwise dispose of any of its authorized but\nunissued stock or other equity or debt securities;\n\n            (iii) declare or pay any dividends or make any other distribution in\ncash, property or securities on its stock;\n\n            (iv) repurchase or redeem any shares of its stock;\n\n            (v) incur, or perform, pay or otherwise discharge, any material\nobligation or liability (absolute or contingent), except for obligations and\nliabilities incurred in the ordinary course of business consistent with past\npractice;\n\n            (vi) enter into any employment agreement with or increase the\ncompensation or benefits of any of its officers or employees, or grant any\nseverance pay or termination or establish, adopt or enter into any Plan;\n\n            (vii) sell, lease, transfer or otherwise dispose of, or acquire, any\nmaterial properties or assets, tangible or intangible, other than in the\nordinary course of business;\n\n            (viii) make any material changes in its customary method of\noperations, including marketing, selling and pricing policies and maintenance of\nbusiness premises, fixtures, furniture and equipment;\n\n            (ix) change any of the accounting principles or practices used by\nit, except to come into compliance with, or as required by, GAAP.\n\n      (d) FURTHER ACTION. Upon the terms and subject to the conditions hereof,\nthe Seller shall use all commercially reasonable efforts to take, or cause to be\ntaken, all actions and to do, or cause to be done, all other things necessary,\nproper or advisable to consummate and make effective as promptly as practicable\nthe transactions contemplated by this Agreement and to obtain in a timely manner\nall necessary waivers, consents and approvals and to effect all necessary\nregistrations and filings.\n\n      (e) PUBLIC ANNOUNCEMENTS. The Seller shall consult with the Purchaser\nbefore issuing any press release or otherwise making any public statement with\nrespect to the acquisition of the Shares by the Purchaser and shall not issue\nany such press release or make any such public statement, except as may be\nrequired by law, without the prior written consent of the Purchaser, which may\nnot be unreasonably withheld or delayed.\n\n      (f) CONFIDENTIALITY. The Company and the Seller shall not use or divulge\nany trade secrets, customer or supplier lists, pricing information, marketing\narrangements or strategies, business plans, internal performance statistics,\ntraining manuals or other information concerning the Company or Purchaser or its\naffiliates that is competitively sensitive or confidential; provided, however,\nthat this prohibition shall not apply to any information that (A) is publicly\navailable as of the date hereof, (B) becomes publicly \n\n\n                                       15\n\n\navailable other than as a result of prohibited disclosure by the Company or the\nSeller, (C) is disclosed to the Company or the Seller, as applicable, by any\nperson or entity that is not subject to any confidentiality restriction imposed\nby the Purchaser, (D) that the Company or the Seller, as applicable, develops\nindependently or (E) the Company or the Seller is required to disclose by law or\nby order of any court of competent jurisdiction, but, in the case of (E), the\nCompany or the Seller shall first give the Purchaser notice of such law or court\norder and an opportunity to object, if permitted by such law or court order.\nBecause the breach or attempted or threatened breach of this restrictive\ncovenant will result in immediate and irreparable injury to the Purchaser for\nwhich the Purchaser will not have an adequate remedy at law, the Purchaser shall\nbe entitled, in addition to all other remedies, to a decree of specific\nperformance of this covenant and to a temporary and permanent injunction\nenjoining such breach, without posting bond or furnishing similar security. The\nprovisions of this Section 4.01(f) are in addition to and independent of any\nagreements or covenants contained in any employment, consulting or other\nagreement between the Purchaser or the Company and the Seller.\n\n      SECTION 4.02 COVENANTS OF THE PURCHASER. The Purchaser covenants and\nagrees that between the date hereof and the Closing:\n\n      (a) ACTIONS. The Purchaser will not take any action that would cause any\nof the representations and warranties made by it in any of the Purchaser\nDocuments not to be true and correct in all material respects on and as of the\nClosing Date with the same force and effect as if such representations and\nwarranties had been made on and as of the Closing Date.\n\n      (b) FURTHER ACTION. Upon the terms and subject to the conditions hereof,\nthe Purchaser shall use all commercially reasonable efforts to take, or cause to\nbe taken, all actions and to do, or cause to be done, all other things\nnecessary, proper or advisable to consummate and make effective as promptly as\npracticable the transactions contemplated by this Agreement and to obtain in a\ntimely manner all necessary waivers, consents and approvals and to effect all\nnecessary registrations and filings.\n\n      (c) PUBLIC ANNOUNCEMENTS. The Purchaser shall consult with the Seller\nbefore issuing any press release or otherwise making any public statement with\nrespect to the acquisition of the Shares by the Purchaser and shall not issue\nany such press release or make any such public statement, except as may be\nrequired by law, without the prior written consent of the Seller, which may not\nbe unreasonably withheld or delayed.\n\n                                   ARTICLE V\n\n                              CONDITIONS PRECEDENT\n\n      SECTION 5.01 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER. The\nobligations of the Purchaser to consummate the transactions contemplated by the\nPurchaser Documents are subject to the fulfillment, at or before the Closing, of\neach of the following conditions, any of which may be waived by the Purchaser in\nwriting, and \n\n\n                                       16\n\n\neach of the Seller and the Company shall use commercially reasonable efforts to\ncause such conditions to be fulfilled:\n\n      (a) REPRESENTATIONS AND WARRANTIES. Each of the representations and\nwarranties of the Seller and the Company in the Seller Documents and the Company\nDocuments, as the case may be, shall be true and correct in all material\nrespects on and as of the Closing Date as if made on and as of the Closing Date,\nexcept to the extent that any such representation or warranty is made as of a\nspecified date, in which case such representation or warranty shall have been\ntrue and correct in all material respects as of such date.\n\n      (b) PERFORMANCE BY THE SELLER AND THE COMPANY. Each of the Seller and the\nCompany shall have performed and complied in all material respects with all\nagreements, covenants and conditions required by the Seller Documents and the\nCompany Documents, as the case may be, to be performed or complied with by the\nSeller or the Company, as the case may be, at or before the Closing.\n\n      (c) CERTIFICATE. The Purchaser shall have received a certificate executed\nby each of the Seller and the Company, dated the Closing Date, certifying, in\nsuch detail as the Purchaser may reasonably request, as to the fulfillment of\nthe conditions set forth in Sections 5.01(a) and 5.01(b).\n\n      (d) CONSENTS. Each of the Seller and the Company shall have obtained, or\nto the reasonable satisfaction of the Purchaser obviated the need to obtain, all\nconsents, approvals and waivers from governmental and regulatory authorities and\nthird parties necessary for the execution, delivery and performance of the\nSeller Documents and the Company Documents and the transactions contemplated\nthereby, without any material cost or adverse consequences to the Seller or the\nCompany.\n\n      (e) LITIGATION. No action or proceeding shall be pending or threatened\nbefore any court, tribunal or governmental entity, and no claim or demand shall\nhave been made against the Purchaser, the Seller or the Company, seeking to\nrestrain or prohibit or to obtain damages or other relief in connection with the\nconsummation of the transactions contemplated by any of the Company Documents or\nthe Seller Documents, or which might have a Company Material Adverse Effect or\nSeller Material Adverse Effect, which in the reasonably exercised opinion of the\nPurchaser makes it inadvisable to consummate such transactions.\n\n      (f) PROCEEDINGS. All actions, proceedings, instruments and documents\nrequired to carry out the transactions contemplated hereby or incidental hereto\nand all other related legal matters shall have been reasonably satisfactory to\nand approved by counsel for the Purchaser and such counsel shall have been\nfurnished with such certificates, instruments and documents as it shall have\nreasonably requested, including, but not limited to, a certificate of each of\nthe Company and Seller, dated the Closing Date, signed by the respective\nSecretary of the Company and Seller, with respect to the Company's and Seller's\ncharter, by-laws and, in the case of the Seller, resolutions relating to the\ntransactions contemplated hereby and the incumbency and signatures of each of\nthe \n\n\n                                       17\n\n\nofficers of the Company and Seller who shall execute on behalf of the Company\nany Company Document and on behalf of the Seller any Seller Document delivered\non the Closing Date.\n\n      (g) NO VIOLATION. There shall not have been any action taken, or any\nstatute, rule, regulation or order enacted, promulgated, issued or deemed\napplicable to the acquisition of the Company by the Purchaser by any federal or\nstate government or governmental or regulatory authority or court, which would:\n(i) prohibit the Purchaser's ownership or operation of all or a material portion\nof the Company's business or assets, or compel the Purchaser to dispose of or\nhold separate all or a material portion of the Company's business or assets, as\na result of the acquisition of the Shares by the Purchaser; (ii) render any\nparty hereto unable to consummate the acquisition of the Shares by the\nPurchaser; (iii) make such consummation illegal; or (iv) impose or confirm\nmaterial limitations on the ability of the Purchaser effectively to exercise\nfull rights of ownership of the Shares, and no such action shall have been taken\nor any such statute, rule, regulation or order enacted, promulgated, issued or\ndeemed applicable to the acquisition of the Shares by the Purchaser which is\nreasonably likely to produce such result.\n\n      (h) ASSIGNMENT OF LEASE. The Seller and the Company shall have entered\ninto an assignment of lease relating to the 1st floor office in Bethesda,\nMaryland (the \"ASSIGNMENT OF LEASE\") in the form of EXHIBIT D.\n\n      (i) ACCELERATED VESTING. The Seller shall have caused the shares of\nrestricted stock of the Seller owned by employees of the Company prior to\nJanuary 13, 2000 to be vested in full as of the Closing Date.\n\n      (j) SECURITY AGREEMENT. The Seller, Company and Purchaser shall have\nentered into a security agreement in which Company shall grant Seller a security\ninterest in certain technology assets of the Purchaser described therein (the\n\"SECURITY AGREEMENT\") in the form of EXHIBIT E.\n\n      (k) STOCKHOLDER'S AGREEMENT. The Seller and the Purchaser shall have\nentered into a Stockholders' Agreement (the \"Stockholders Agreement\") in the\nform of EXHIBIT F.\n\n      (l) LEGAL OPINION. At the Closing, the Purchaser shall have received the\nlegal opinion of the counsel for the Seller, in the form of EXHIBIT G.\n\n      (m) MLS LETTER AGREEMENT. The Seller and MLS shall have entered into a\nletter agreement in the form of EXHIBIT H (the \"MLS LETTER AGREEMENT\").\n\n      SECTION 5.02 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. The\nobligations of the Seller to consummate the transactions contemplated by the\nSeller Documents are subject to the fulfillment, at or before the Closing, of\neach of the following conditions, any of which may be waived by the Seller in\nwriting, and the Purchaser shall use commercially reasonable efforts to cause\nsuch conditions to be fulfilled:\n\n\n                                       18\n\n\n      (a) REPRESENTATIONS AND WARRANTIES. Each of the representations and\nwarranties of the Purchaser in the Purchaser Documents shall be true and correct\nin all material respects on and as of the Closing as if made on and as of the\nClosing, except to the extent that any such representation or warranty is made\nas of a specified date, in which case such representation or warranty shall have\nbeen true and correct in all material respects as of such date.\n\n      (b) PERFORMANCE BY THE PURCHASER. The Purchaser shall have performed and\ncomplied in all material respects with all agreements, covenants and conditions\nrequired by the Purchaser Documents to be performed or complied with by the\nPurchaser at or before the Closing.\n\n      (c) CERTIFICATE. The Seller shall have received a certificate executed by\nthe Purchaser, dated the Closing Date, certifying, in such detail as the Seller\nmay reasonably request, as to the fulfillment of the conditions set forth in\nSections 5.02(a) and 5.02(b).\n\n      (d) LITIGATION. No action or proceeding shall be pending or threatened\nbefore any court, tribunal or governmental entity, and no claim or demand shall\nhave been made against the Purchaser, the Seller or the Company, seeking to\nrestrain or prohibit or to obtain damages or other relief in connection with the\nconsummation of the transactions contemplated by any of the Purchaser Documents,\nor which might materially adversely affect the business of the Purchaser, which\nin the reasonably exercised opinion of the Seller makes it inadvisable to\nconsummate such transactions.\n\n      (e) CONSENTS. The Purchaser shall have obtained, or to the reasonable\nsatisfaction of the Seller obviated the need to obtain, all consents, approvals\nand waivers from governmental and regulatory authorities and third parties\nnecessary for the execution, delivery and performance of the Purchaser Documents\nand the transactions contemplated thereby, without any material cost or adverse\nconsequence to the Purchaser.\n\n      (f) PROCEEDINGS. All actions, proceedings, instruments and documents\nrequired to carry out the transactions contemplated hereby or incidental hereto\nand all other related legal matters shall have been reasonably satisfactory to\nand approved by counsel for the Seller and such counsel shall have been\nfurnished with such certificates, instruments and documents as it shall have\nreasonably requested, including, but not limited to, a certificate of the\nPurchaser, dated the Closing Date, signed by the Secretary of the Purchaser,\nwith respect to the Purchaser's charter, by-laws and resolutions relating to the\ntransactions contemplated hereby and the incumbency and signatures of each of\nthe officers of the Purchaser who shall execute on behalf of the Purchaser any\nPurchaser Document delivered on the Closing Date.\n\n      (g) NO VIOLATION. There shall not have been any action taken, or any\nstatute, rule, regulation or order enacted, promulgated, issued or deemed\napplicable to the acquisition of the Preferred Stock by the Seller by any\nfederal or state governmental or regulatory authority or court, which would: (i)\nrender any party hereto unable to consummate the acquisition of the Preferred\nStock by the Seller; (ii) make such consummation illegal; or (iii) impose or\nconfirm material limitations on the ability of the \n\n\n                                       19\n\n\nSeller effectively to exercise full rights of ownership of the Preferred Stock,\nand no such action shall have been taken or any such statute, rule, regulation\nor order enacted, promulgated, issued or deemed applicable to the acquisition of\nthe Preferred Stock by the Seller which is reasonably likely to produce such\nresult.\n\n      (h) MLS LETTER AGREEMENT. The Seller and MLS shall have entered into the\nMLS Letter Agreement.\n\n      (i) ASSIGNMENT OF LEASE. The Purchaser and the Company shall have entered\ninto the Assignment of Lease.\n\n      (j) SECURITY AGREEMENT. The Purchaser, Company and Seller shall have\nentered into the Security Agreement.\n\n      (k) STOCKHOLDERS' AGREEMENT. The Purchaser and Seller shall have entered\ninto the Stockholder's Agreement.\n\n      (l) PURCHASER NOTE. The Company shall have executed the Purchaser Note.\n\n      (m) RESTATED CERTIFICATE. The Purchaser shall have caused the filing of\nthe Restated Certificate.\n\n      (n) LEGAL OPINION. At the Closing, the Seller shall have received the\nlegal opinion of the counsel for the Purchaser, in the form of EXHIBIT I.\n\n      (o) TERMINATION OF EMPLOYMENT AGREEMENTS. The employment of each of the\nemployees of the Company listed on SCHEDULE 5.01(o) hereto (collectively, the\n\"EMPLOYMENT AGREEMENTS\") shall have been terminated or shall automatically\nterminate upon the Closing subject to executed termination agreements signed in\nrespect of each of the Employment Agreements.\n\n                                   ARTICLE VI\n\n                               CLOSING DELIVERIES\n\n      SECTION 6.01 DELIVERIES OF THE SELLER. At the Closing, the Seller shall\ndeliver, or shall cause to be delivered, to the Purchaser the following:\n\n      (a) Certificates representing the Shares, together with properly executed\nstock powers and any required stock transfer tax stamps affixed thereto and all\ntaxes on such transfer, if any, paid in full, all at the expense of the holder\nof such Shares;\n\n      (b) The certificate referred to in Section 5.01(c), duly executed;\n\n      (c) The minute books of the Company;\n\n      (d) Duly executed resignations of all directors of the Company;\n\n\n                                       20\n\n\n      (e) The Assignment of Lease;\n\n      (f) The Security Agreement;\n\n      (g) The Stockholders' Agreement;\n\n      (h) The MLS Letter Agreement; and\n\n      (i) The legal opinion of the counsel for the Seller.\n\n      SECTION 6.02 PURCHASER DELIVERIES. At the Closing, the Purchaser shall\ndeliver, or shall cause to be delivered, to the Seller the following:\n\n      (a) The Cash Adjustment;\n\n      (b) Certificates representing the Preferred Stock registered in the name\nof the Seller;\n\n      (c) The Purchaser Note;\n\n      (d) The certificate referred to in Section 5.02(c) hereof, duly executed;\n\n      (e) MLS Letter Agreement;\n\n      (f) The Assignment of Lease;\n\n      (g) The Security Agreement;\n\n      (h) Evidence that the Restated Certificate has been filed on or prior to\nthe Closing Date with the Secretary of State of Delaware;\n\n      (i) The Stockholders' Agreement;\n\n      (j) The legal opinion of the counsel for the Purchaser; and\n\n      (k) Evidence of termination of the Employment Agreements.\n\n\n                                   ARTICLE VII\n\n                                 INDEMNIFICATION\n\n      SECTION 7.01 INDEMNIFICATION BY THE SELLER. The Seller shall indemnify,\ndefend and hold harmless the Purchaser, promptly upon demand at any time and\nfrom time to time, against any and all losses, liabilities, claims, actions,\ndamages and expenses (including without limitation, reasonable attorneys' fees\nand disbursements) (collectively, \"LOSSES\"), arising out of or in connection\nwith any of the following: (i) any misrepresentation or breach of any warranty\nmade by the Seller in Section 3.01 or any of the Seller Documents; (ii) any\nbreach or nonfulfillment of any covenant or agreement \n\n\n                                       21\n\n\nmade by the Seller in any of the Seller Documents; (iii) the claims of any\nbroker or finder engaged by the Seller; (iv) any Tax liability of the Seller;\n(v) any Tax liability of the Company relating to any period from date the Seller\nacquired the stock of the Company that (A) ends on the Closing Date or (B)\nincludes the Closing Date, to the extent the amount of such Tax liability is\nattributable to the portion of such period ending on the Closing Date\n(determined as if the period ended on that date); (vi) 50% of any employment\nclaims asserted by former employees of the Company whose employment with the\nCompany was terminated during September 2001 or December 2001; and\/or (vii) any\nand all claims against the Company in connection with any account payable\nidentified on Schedule 8.04 with respect to which the Company (or the Purchaser\non behalf thereof) has, with the thirty (30) day period after the Closing Date,\neither (A) paid the principal balance of such account payable as stated on such\nSchedule 8.04, or (B) arranged with the holder of such account payable for a\ncompromise payment plan or similar type of settlement with respect thereto. With\nrespect to clause (i) in this Section 7.01, in no event shall Seller indemnify\nPurchaser for a breach of any representation or warranty of the Seller in\nrespect of the Company to the extent that MLS knew or should have known that\nsuch representation or warranty was inaccurate on the Closing Date; provided ,\nhowever, that the foregoing limitation shall not apply to any of the\nrepresentations or warranties of the Seller in respect of the Seller itself.\nWith respect to clause (v) in this Section 7.01 and without limitation thereof,\nthe Seller acknowledges and agrees that (A) the Seller shall indemnify the\nCompany for Losses arising out of or in connection with any liability relating\nto personal property Tax payable by the Company with respect to fiscal year 2000\nand fiscal year 2001, including without limitation all accounting fees and\nexpenses related thereto, and (B) in the event that the Seller fails to pay such\namounts to the Company within 30 days of the payment thereof by the Company (or\nby the Purchaser on behalf of the Company), then Purchaser shall have the right\nto offset against its Earn Out payments to the Seller such amounts owed by the\nSeller to the Company.\n\n      SECTION 7.02 INDEMNIFICATION BY THE PURCHASER. The Purchaser, shall\nindemnify, defend and hold harmless the Seller, promptly upon demand at any time\nand from time to time, against any and all Losses arising out of or in\nconnection with any of the following: (i) any misrepresentation or breach of any\nwarranty made by the Purchaser in the Purchaser Documents; (ii) any breach or\nnonfulfillment of any covenant or agreement made by the Purchaser in the\nPurchaser Documents; (iii) the claims of any broker or finder engaged by the\nPurchaser; (iv) any claims by Latham &amp; Watkins for fees payable in consideration\nof services rendered to the Company; (v) all employment claims from former or\ncurrent employees of the Company, except those covered by the Seller under\nSection 7.01(vi); (vi) all claims from former or current employees of the\nCompany relating to any commissions owed; (vii) any Tax liability of the Company\nfrom any transaction entered into by the Company, other than this Agreement, on\nthe Closing Date; (viii) any claims regarding legal fees payable to Latham &amp; Watkins that are attributable to the formerly proposed transaction involving the\nCompany and Stellar One Corporation or (ix) any other claims relating to the\nbusiness of the Company arising out of any transaction, occurrence or\ncircumstance occurring or alleged to have occurred after the Closing Date.\n\n\n                                       22\n\n\n      SECTION 7.03 FURTHER PROVISIONS REGARDING INDEMNIFICATION.\n\n      (a)   SURVIVAL.\n\n            (i) All representations and warranties made by the Seller in the\nSeller Documents, or by the Purchaser in the Purchaser Documents, shall survive\nthe Closing until the first anniversary of the Closing Date, notwithstanding any\nexamination or investigation made by or for any party; PROVIDED, HOWEVER that\n(A) the representations and warranties contained in Section 3.01(i) (with\nrespect to taxes) shall remain in full force and effect until 90 days after the\nexpiration of the applicable statute of limitations; and (B) the representations\nand warranties contained in Sections 3.01(a), 3.01(b), 3.01(c), 3.01(d),\n3.02(a), 3.02(b), 3.02(c) and 3.02(d) shall remain in full force and effect\nindefinitely.\n\n      (b)   LIMITATIONS. Notwithstanding the foregoing,\n\n            (i) the indemnification in Sections 7.01 and 7.02, as the case may\nbe, shall be the exclusive remedy of the Seller, the Purchaser, and their\nrespective affiliates with respect to claims for Losses;\n\n            (ii) the indemnification provided for in Section 7.01(i) and Section\n7.02(i) above shall not be required unless and until, at the time of any such\ndetermination, the total amount of Losses otherwise subject to indemnification\nunder Section 7.01(i) or Section 7.02(i), as applicable, exceeds $100,000, in\nwhich event the indemnified party or parties will be entitled to indemnification\nfor the amount of their Losses arising under Section 7.01(i) or Section 7.02(i),\nas applicable, in excess of such amount, PROVIDED that the aggregate amount of\nactual payments for indemnification of Losses under Section 7.01(i) and Section\n7.02(i) that either the Purchaser or the Seller shall be entitled to receive\nfrom the other party shall in no event exceed $250,000.\n\n            (iii) neither the Seller or the Company, on the one hand, nor the\nPurchaser or any of its respective affiliates, on the other, shall be entitled\nto indemnification for Losses arising out of matters referred to in Section\n7.01(i) or 7.02(i), as applicable, unless it shall have given written notice to\nthe indemnifying party, setting forth its claim for indemnification in\nreasonable detail, within the period from the Closing Date until the applicable\nperiod of survival as set forth in Section 7.03(a) hereof;\n\n            (iv) an indemnified party shall promptly give written notice to the\nindemnifying party after the indemnified party has knowledge that any legal\nproceeding has been instituted or any claim has been asserted in respect of\nwhich indemnification may be sought under the provisions of Section 7.01 or\n7.02. If the indemnifying party, within 30 days after the indemnified party has\ngiven such notice (or within such shorter period of time as an answer or other\nresponsive motion may be required), shall have acknowledged in writing his or\nits obligation to indemnify, then the indemnifying party shall have the right to\ncontrol the defense of such claim or proceeding, and the indemnifying party\nshall not settle or compromise such claim or proceeding without the written\nconsent of the indemnified party. The indemnified party may in any event\n\n\n                                       23\n\n\nparticipate in any such defense with his or its own counsel and at his or its\nown expense; and\n\n            (v) the indemnified party shall be kept fully informed by the\nindemnifying party of such action, suit or proceeding at all stages thereof,\nwhether or not he or it is represented by counsel. The indemnifying party shall,\nat the indemnifying party's expense, make available to the indemnified party and\nits attorneys and accountants all books and records of the indemnifying party\nrelating to such action, suit or proceeding, and the parties hereto agree to\nrender to each other such assistance as they may reasonably require of each\nother in order to ensure the proper and adequate defense of any such action,\nsuit or proceeding.\n\n      (c) DELIVERY OF NOTICE. The Purchaser and the Seller agree to promptly\ndeliver a written notice to the other upon any determination that a claim for\nLosses under Section 7.01 or 7.02 is reasonably likely to exist.\n\n      SECTION 7.04 TAX TREATMENT OF INDEMNITY PAYMENTS. All amounts paid with\nrespect to indemnity claims under this Agreement shall be treated by the parties\nhereto for all Tax purposes as adjustments to the Purchase Price, unless\notherwise required by law. If amounts paid with respect to indemnity claims\nunder this Agreement are subsequently determined to be required to be treated as\nincome to the recipient of such payment, then the amount required to be paid\nunder this Article VII shall be paid on a net after-tax basis. Any amounts paid\nwith respect to indemnity claims under this Agreement shall be reduced by the\nTax benefit actually realized by such indemnity claims.\n\n                                  ARTICLE VIII\n\n                                OTHER AGREEMENTS\n\n      SECTION 8.01 LIABILITY FOR STELLAR ONE ATTORNEY'S FEES. The Purchaser\nhereby assumes the obligation to pay legal fees of $81,624.09 attributable to\nthe formerly proposed transaction involving the Company and Stellar One\nCorporation.\n\n      SECTION 8.02 CORPORATE SERVICES. To assist in the transfer, corporate\nservices listed on SCHEDULE 8.02 that are performed for the Company by the\nSeller after the Closing Date (the \"CORPORATE SERVICES\") shall continue to be\nprovided by the Seller, but in no event longer than 60 days after the Closing\nDate, or such later date as mutually agreed upon. The Purchaser shall reimburse\nthe Seller for any reasonable out-of-pocket costs associated with the Corporate\nServices. With respect to any Corporate Services actually provided by Seller,\nthe Seller shall send an invoice to the Company with an itemized listing of\nreimbursable expenses. The Company shall immediately pay the amount set forth on\nthe such invoice to the Seller. In no event shall the Seller be required to make\nany payment on behalf of the Company after the Closing unless the Company shall\nfirst have advanced to the Seller funds sufficient to cover such payment.\n\n      SECTION 8.03 RESERVATION OF SECURITIES. The Purchaser shall maintain a\nreserve from its duly authorized shares of common stock for issuance pursuant to\nthe Transaction \n\n\n                                       24\n\n\nDocuments in such amount as may be required to fulfill its obligations in full\nunder the Transaction Documents.\n\n      SECTION 8.04 RECEIVABLES. Attached as Schedule 8.04 hereto is a list of\n(i) certain accounts payable that are being assumed by the Seller, and (ii)\ncertain accounts receivables due to the Company as of December 31, 2001. The\nSeller will promptly pay to the Company, net of any amounts owed by Purchaser or\nthe Company to Seller, the amount of any accounts receivable collected by the\nSeller from business related to the Company (including, without limitation, any\namounts received from Stellar One Corporation).\n\n      SECTION 8.05 PREPARATION OF FINANCIAL STATEMENTS. Following the Closing\nDate, the Purchaser shall (i) be responsible for mailing to vendors of the\nCompany any IRS Form 1099 or 1096 due to such vendor for the 2001 fiscal year,\n(ii) provide Seller a list of all invoices generated by the Company during\nDecember 2001, and (iii) cause the Company and its employees to assist the\nSeller in the preparation of its 2001 tax returns and in the preparation of (a)\nthe balance sheet of the Company as of the Closing Date and closing statements\nand (b) the financial statements of the Seller in the future for all periods in\nwhich the Seller is required to account for its investment in the Purchaser\nusing the equity method of accounting, including providing customary\ncertifications, including management representation letters, to the Seller's\nindependent auditors, and shall provide the Seller and any accountants, counsel\nor financial advisers retained by the Seller on-site access at reasonable times\nto the personnel, properties, books, contracts, records, schedules, analyses and\nworking papers of the Company through the Closing Date for such purpose.\n\n      SECTION 8.06 TAX REFUNDS. Seller shall have the right to amend, or cause\nthe Company to amend, the Company's prior years Federal and State Tax Returns\nand\/or file a claim for refund, for any tax periods ending on or prior to the\nClosing Date based on losses set forth on the Company's original or amended Tax\nReturns for periods ending on or prior to the Closing Date (including without\nlimitations carrybacks of those losses or credits, but excluding any losses or\nother tax benefit arising after the Closing Date), provided (x) that such\namendment or claim for refund does not cause a Federal or State Tax Return to be\nprepared in a manner that is not consistent with past practices and (y) that\nSeller shall provide Purchaser (for Purchaser's comments, but not subject to\nPurchaser's approval) with a copy of such amendment or claim for refund at least\nten (10) business days prior to its filing. Subject to Seller's rights set forth\nin the immediately preceding sentence, Seller agrees that it shall not take any\nother action that would have the effect of (x) increasing any Tax liability of\nthe Company, or (y) otherwise adversely affect any other item or Tax attribute\nof the Company, in each case for any taxable period ending after the Closing\nDate. Seller shall be entitled to any tax refunds received as a result of\nfilings that comply with the provisions of this Section 8.06 (any such refund a\n\"Seller Refund\"). The Purchaser and the Company agree to promptly pay the Seller\nany Seller Refunds received by, or credited to, the Purchaser or the Company.\n\n\n                                       25\n\n\n                                   ARTICLE IX\n\n                                  MISCELLANEOUS\n\n      SECTION 9.01 NOTICES. All notices or other communications in connection\nwith this Agreement shall be in writing and shall be considered given when\npersonally delivered or three days after when mailed by registered or certified\nmail, postage prepaid, return receipt requested, or by overnight courier as\nfollows:\n\n      If to the Seller:\n\n                        24\/7 Real Media, Inc.\n                        1250 Broadway, 28th Floor\n                        New York, NY  10001\n                        Attn:  General Counsel\n\n      with a copy to:\n\n                        Proskauer Rose LLP\n                        1585 Broadway\n                        New York, NY  10036\n                        Attn:  Ronald R. Papa, Esq.\n\n\n      If to the Purchaser:\n\n                        Schaszberger Corporation\n                        6700 Rockledge Drive\n                        Bethesda, MD  20817\n                        Attn: President\n\n      with a copy to:\n                        Latham &amp; Watkins\n                        555 Eleventh Street N.W., Suite 1000\n                        Washington, D.C.  20004\n                        Attn: James F. Rogers\n\n\nAny party may send any notice, request, demand, claim or other communication\nhereunder to the intended recipient at the address set forth above using any\nother means (including expedited courier, messenger service, telecopy, telex,\nordinary mail or electronic mail), but no such notice, request, demand, claim or\nother communication shall be deemed to have been duly given unless and until it\nactually is delivered to the intended recipient. Any party may change the\naddress to which notices, requests, demands, claims and other communications\nhereunder are to be delivered by giving the other party notice in the manner set\nforth in this Section 9.01.\n\n\n                                       26\n\n\n      SECTION 9.02 TERMINATION. This Agreement may be terminated by any party if\nthe acquisition of the Shares by the Purchaser shall have not been consummated\nby January 31, 2002.\n\n      SECTION 9.03 ENTIRE AGREEMENT. This Agreement (which includes the\nschedules and exhibits hereto) sets forth the parties' final and entire\nagreement with respect to its subject matter and supersedes any and all prior\nand contemporaneous understandings, representations, warranties and agreements\n(whether oral or written) with respect to the subject matter hereof. This\nAgreement can be amended, supplemented or changed, and any provision hereof can\nbe waived, only by a written instrument making specific reference to this\nAgreement signed by the party against whom enforcement of any such amendment,\nsupplement, change or waiver is sought.\n\n      SECTION 9.04 SUCCESSORS. This Agreement shall be binding upon and shall\ninure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, personal representatives, successors and assigns;\nprovided, however, that neither this Agreement nor any right or obligation\nhereunder may be assigned or transferred.\n\n      SECTION 9.05 PARAGRAPH HEADINGS. The paragraph and section headings in\nthis Agreement are for reference purposes only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n\n      SECTION 9.06 FEES AND EXPENSES. Each party hereto will pay its own fees\nand expenses, including, without limitation, legal, accounting and other\nprofessional fees and expenses, incurred in connection with the execution,\ndelivery and performance of this Agreement, whether or not the acquisition of\nthe Shares by the Purchaser is consummated.\n\n      SECTION 9.07 SEVERABILITY. If any provision of this Agreement shall be\nheld by any court of competent jurisdiction to be illegal, invalid or\nunenforceable, such provision shall be construed and enforced as if it had been\nmore narrowly drawn so as not to be illegal, invalid or unenforceable, and such\nillegality, invalidity or unenforceability shall have no effect upon and shall\nnot impair the enforceability of any other provision of this Agreement.\n\n      SECTION 9.08 GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement\nshall be governed by and construed and interpreted in accordance with the\ninternal laws of the State of New York. The state courts of the State of New\nYork in New York County and, if the jurisdictional prerequisites exist at the\ntime, the United States District Court for the Southern District of New York,\nshall have sole and exclusive jurisdiction to hear and determine any dispute or\ncontroversy arising under or concerning this Agreement. In any action or\nproceeding concerning such dispute or controversy, the parties consent to such\njurisdiction and waive personal service of any summons, complaint or other\nprocess; a summons or complaint in any such action or proceeding may be served\nby mail in accordance with Section 9.01.\n\n\n                                       27\n\n\n      SECTION 9.09 COUNTERPARTS. This Agreement may be executed by facsimile and\nin one or more counterparts, each of which shall be deemed an original, but all\nof which taken together shall constitute one and the same instrument.\n\n      SECTION 9.10 DEFINITION OF KNOWLEDGE. As used herein, the words \"KNOW\",\n\"KNOWLEDGE\" or \"KNOWN\" shall, (i) with respect to the Company or Company\nmanagement, mean the actual knowledge of MLS, in each case after such person has\nmade due and diligent inquiry as to the matters which are the subject of the\nstatements which are \"KNOWN\" by the Company or made to the \"KNOWLEDGE\" of the\nCompany; (ii) with respect to the Seller or Seller management, mean the actual\nknowledge of David Moore, Mark Moran, Anthony Plesner and\/or Ken Leidner, in\neach case after such individuals have made due and diligent inquiry as to the\nmatters which are the subject of the statements which are \"KNOWN\" by the Seller\nor made to the \"KNOWLEDGE\" of the Seller, and (iii) with respect to the\nPurchaser or the Purchaser's management, mean the actual knowledge of the\ncorporate executive officers of the Purchaser, in each case after such\nindividuals have made due and diligent inquiry as to the matters which are the\nsubject of the statements which are \"KNOWN\" by the Purchaser or made to the\n\"KNOWLEDGE\" of the Purchaser.\n\n      SECTION 9.11 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer\nany rights or remedies upon any person or entity other than the parties and\ntheir respective successors and permitted assigns; provided, however, that the\nprovisions in Section 7.03(d) above concerning indemnification are intended for\nthe benefit of the individuals specified therein.\n\n                           [Signature page to follow]\n\n\n                                       28\n\n\n\n\n      IN WITNESS WHEREOF, the parties have duly executed this Agreement on the\ndate first above written.\n\n\n\n24\/7 REAL MEDIA, INC.\n\n\nBy: ________________________\n      Name:  David J. Moore\n      Title:  Chief Executive Officer\n\n\n\nIMAKE SOFTWARE &amp; SERVICES, INC.\n\n\nBy: ________________________\n      Name:\n      Title:\n\n\n\nSCHASZBERGER CORPORATION\n\n\nBy:  ________________________\n      Name:\n      Title:\n\n\n\n\n\n\n\n\n\n\n\n\n\n              [SIGNATURE PAGE TO STOCK PURCHASE AND SALE AGREEMENT]\n\n\n\n                                       29\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9622,9627],"class_list":["post-43726","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_industries-services__advertising","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43726","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=43726"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43726"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43726"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43726"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}