Exhibit 10.1


 


 


Execution Copy March 1,
2012


 


 


 


AGREEMENT AND PLAN
OF MERGER


 


AMONG


 


URANIUM RESOURCES,
INC.


 


(“Purchaser”),


 


URI MERGER CORPORATION


 


an indirect, wholly-owned
subsidiary of Purchaser


 


(“Merger Sub”),


 


and


 


NEUTRON ENERGY, INC.


 


(“Target”)


 


 


 


 


 


 


 


 



     

     

    

 






 


 


 


TABLE OF CONTENTS


 


Page


 


 


 


	Article 1	 	THE MERGER	 	 	1	 
	 	1.1	 	The Merger	 	 	1	 
	 	1.2	 	Closing	 	 	1	 
	 	1.3	 	Effective Time	 	 	2	 
	 	1.4	 	Effects of the Merger	 	 	2	 
	 	1.5	 	Articles of Incorporation and Bylaws of the Surviving Corporation	 	 	2	 
	 	1.6	 	Directors	 	 	2	 
	 	1.7	 	Officers	 	 	2	 
	 	1.8	 	Additional Actions	 	 	3	 
	Article 2	 	CONVERSION OF SECURITIES	 	 	3	 
	 	2.1	 	Conversion of Capital Stock	 	 	3	 
	 	2.2	 	Exchange Ratios; Fractional Shares	 	 	4	 
	 	2.3	 	Exchange of Certificates	 	 	4	 
	 	2.4	 	Dissenting Shares	 	 	6	 
	 	2.5	 	Options and Warrants	 	 	6	 
	 	2.6	 	No Further Ownership Rights in Target Common Stock	 	 	7	 
	 	2.7	 	Termination of Exchange Fund	 	 	7	 
	 	2.8	 	No Liability	 	 	7	 
	 	2.9	 	Investment of Exchange Fund	 	 	7	 
	Article 3	 	REPRESENTATIONS AND WARRANTIES  OF PURCHASER AND MERGER SUB	 	 	8	 
	 	3.1	 	Organization and Qualification; Subsidiaries	 	 	8	 
	 	3.2	 	Certificate of Incorporation and Bylaws	 	 	8	 
	 	3.3	 	Capitalization	 	 	8	 
	 	3.4	 	Authority Relative to this Agreement	 	 	10	 
	 	3.5	 	No Conflict; Required Filings and Consents	 	 	10	 
	 	3.6	 	Compliance; Permits	 	 	11	 
	 	3.7	 	SEC Filings; Financial Statements	 	 	11	 
	 	3.8	 	Controls and Procedures	 	 	12	 
	 	3.9	 	Absence of Certain Changes or Events	 	 	13	 


 


 


 


 


 



     

     

    

 






 


 


 


	 	3.10	 	Absence of Litigation	 	 	13	 
	 	3.11	 	Property and Title	 	 	13	 
	 	3.12	 	Fee Surface and Fee Mineral Lands	 	 	13	 
	 	3.13	 	Surface and Mineral Leases	 	 	13	 
	 	3.14	 	Mining Claims	 	 	14	 
	 	3.15	 	Water Rights	 	 	14	 
	 	3.16	 	Environmental Matters	 	 	15	 
	 	3.17	 	Agreements, Contracts and Commitments	 	 	16	 
	 	3.18	 	Vote Required	 	 	16	 
	 	3.19	 	Brokers	 	 	16	 
	Article 4	 	REPRESENTATIONS AND WARRANTIES OF TARGET	 	 	16	 
	 	4.1	 	Organization and Qualification; Subsidiaries	 	 	16	 
	 	4.2	 	Articles of Incorporation and Bylaws	 	 	17	 
	 	4.3	 	Capitalization	 	 	17	 
	 	4.4	 	Authority Relative to this Agreement	 	 	18	 
	 	4.5	 	No Conflict; Required Filings and Consents	 	 	19	 
	 	4.6	 	Compliance; Permits	 	 	19	 
	 	4.7	 	Financial Statements	 	 	19	 
	 	4.8	 	No Undisclosed Liabilities	 	 	21	 
	 	4.9	 	Absence of Certain Changes or Events	 	 	21	 
	 	4.10	 	Absence of Litigation	 	 	21	 
	 	4.11	 	Employee Plans	 	 	21	 
	 	4.12	 	Labor and Employee Matters	 	 	22	 
	 	4.13	 	Property and Title	 	 	23	 
	 	4.14	 	Fee Surface and Fee Mineral Lands	 	 	23	 
	 	4.15	 	Surface and Mineral Leases	 	 	23	 
	 	4.16	 	Mining Claims	 	 	24	 
	 	4.17	 	Water Rights	 	 	24	 
	 	4.18	 	Insurance	 	 	24	 
	 	4.19	 	Taxes	 	 	25	 
	 	4.20	 	 Environmental Matters	 	 	27	 
	 	4.21	 	Intellectual Property	 	 	28	 
	 	4.22	 	Agreements, Contracts and Commitments	 	 	29	 


 


 


 


 


 



     

     

    

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	 	4.23	 	Interested Party Transactions	 	 	30	 
	 	4.24	 	Brokers	 	 	30	 
	 	4.25	 	Opinions of Financial Advisors	 	 	30	 
	 	4.26	 	Vote Required	 	 	30	 
	 	4.27	 	NCA and State Takeover Laws	 	 	31	 
	 	4.28	 	No Other Representations and Warranties	 	 	31	 
	Article 5	 	COVENANTS OF THE PARTIES	 	 	31	 
	 	5.1	 	Conduct of Business of Target	 	 	31	 
	 	5.2	 	Conduct of Business of Purchaser	 	 	34	 
	 	5.3	 	Stockholder Approval	 	 	35	 
	 	5.4	 	Registration Statement	 	 	35	 
	 	5.5	 	Reasonable Best Efforts	 	 	37	 
	 	5.6	 	Neutron Funding Agreement	 	 	37	 
	 	5.7	 	HSR Act	 	 	37	 
	 	5.8	 	Other Governmental Matters	 	 	38	 
	 	5.9	 	Intentionally Omitted	 	 	38	 
	 	5.10	 	Public Announcements	 	 	38	 
	 	5.11	 	Notification of Certain Matters	 	 	38	 
	 	5.12	 	No Solicitation	 	 	38	 
	 	5.13	 	Confidentiality; Access	 	 	41	 
	 	5.14	 	Listing Application	 	 	41	 
	 	5.15	 	Director and Officer Insurance	 	 	41	 
	 	5.16	 	FIRPTA	 	 	42	 
	 	5.17	 	Englewood and Albuquerque Leases	 	 	43	 
	Article 6	 	CONDITIONS	 	 	43	 
	 	6.1	 	Mutual Conditions	 	 	43	 
	 	6.2	 	Conditions to Obligations of Target	 	 	43	 
	 	6.3	 	Conditions to Obligations of Purchaser and Merger Sub	 	 	44	 
	Article 7	 	TERMINATION AND AMENDMENT	 	 	45	 
	 	7.1	 	Termination of Agreement	 	 	45	 
	 	7.2	 	Notice of Termination; Effect of Termination	 	 	46	 
	 	7.3	 	Fees and Expenses	 	 	47	 
	 	7.4	 	Amendment	 	 	49	 


 


 


 


 


 



     

     

    

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	 	7.5	 	Extension; Waiver	 	 	49	 
	Article 8	 	MISCELLANEOUS	 	 	49	 
	 	8.1	 	No Survival	 	 	49	 
	 	8.2	 	Cross References to Defined Terms	 	 	49	 
	 	8.3	 	Terms not Defined Elsewhere	 	 	50	 
	 	8.4	 	Notices	 	 	56	 
	 	8.5	 	Interpretation	 	 	58	 
	 	8.6	 	Counterparts	 	 	58	 
	 	8.7	 	Entire Agreement	 	 	58	 
	 	8.8	 	Third Party Beneficiaries	 	 	58	 
	 	8.9	 	Governing Law	 	 	58	 
	 	8.10	 	Specific Performance	 	 	59	 
	 	8.11	 	Assignment	 	 	59	 


 


 


 


 


 



     

     

    

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Exhibits







Exhibit A—Target Stockholders
executing Voting Agreements


Exhibit B—Budget


Exhibit C—Target Knowledge
Persons


Exhibit D—Purchaser
Knowledge Persons


Exhibit E—Neutron
Funding Agreement


Exhibit F—RCF Investment
Agreement


Exhibit G—RMB Agreement


Exhibit H—Form of
Transaction Cost Settlement Agreements


Exhibit I—Parties
to Transaction Cost Settlement Agreements


Exhibit J—Form of
Voting Agreement


 


 


 


 


 



     

     

    

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AGREEMENT AND PLAN
OF MERGER


 


This Agreement and Plan
of Merger (this “Agreement”) is made and entered into as of March 1, 2012, by and among URANIUM RESOURCES, INC., a
Delaware corporation (“Purchaser”), URI MERGER CORPORATION, a Nevada corporation and an indirect, wholly-owned subsidiary
of Purchaser (“Merger Sub”), and NEUTRON ENERGY, INC., a Nevada corporation (“Target”).


 


WHEREAS, the respective
boards of directors of Purchaser, Merger Sub and Target have each approved and adopted this Agreement and the transactions contemplated
hereby, including the merger of Merger Sub with and into Target (the “Merger”), upon the terms and subject to the conditions
set forth herein;


 


WHEREAS, Merger Sub
is a direct, wholly-owned subsidiary of URI Neutron Holdings II, Inc., a Delaware corporation, which is a direct, wholly-owned
subsidiary of URI Neutron Holdings I, Inc., a Delaware corporation, which is a direct, wholly-owned subsidiary of Purchaser;


 


WHEREAS, contemporaneously
with entering into this Agreement, Purchaser has entered into the Voting Agreements with each of the Target Stockholders listed
on Exhibit A hereto pursuant to which, among other things, such stockholders have agreed to vote their shares of Target Common
Stock to approve the Merger, all on the terms and subject to the conditions set forth in the Voting Agreements;


 


WHEREAS, contemporaneously
with entering into this Agreement, Purchaser and Target have entered into additional agreements with various third parties related
to the transaction contemplated hereby, including the RCF Investment Agreement, the RMB Agreement, the Neutron Funding Agreement,
the Transaction Cost Settlement Agreements and the Cebolleta Agreement (collectively, the “Transaction Agreements”);
and


 


WHEREAS, the parties
desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions
to the Merger.


 


NOW, THEREFORE, in consideration
of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby,
the parties agree as follows:


 


 


ARTICLE 1


THE MERGER


 


1.1 The
Merger.  At the Effective Time, upon the terms and subject to the conditions set forth in this Agreement, and in
accordance with the applicable provisions of the Nevada Corporations Act (the “NCA”), Merger Sub shall be merged with
and into Target, whereupon the separate corporate existence of Merger Sub shall cease, and Target shall continue as the surviving
corporation in the Merger.  Target in its capacity as the surviving corporation of the Merger is sometimes referred to
herein as the “Surviving Corporation.”


 


 


 


 


 



     

     

    

 






 


 


 


1.2 Closing.  The
closing of the Merger (the “Closing”) shall take place at the offices of Baker & Hostetler LLP, 303 East 17th
Avenue, Suite 1100, Denver, Colorado 80203-1264, at 10:00 a.m., local time, on a date to be specified by the parties (the “Closing
Date”), which shall be no later than the second Business Day after the satisfaction or waiver (to the extent permitted by
this Agreement and applicable Law) of the conditions set forth in Article 6 (other than those conditions that by their nature are
to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or at such other place, date and
time as Purchaser and Target may agree in writing.


 


1.3 Effective
Time.  On the Closing Date, immediately after the Closing, the parties shall cause the Merger to be consummated by
executing and filing of articles of merger (the “Articles of Merger”) with the Secretary of State of the State of Nevada
and make all other filings or recordings required under the NCA in connection with the Merger.  The Merger shall become
effective at such time as the Articles of Merger are duly filed with the Secretary of State of the State of Nevada, or at such
later date as the parties shall agree and as shall be set forth in the Articles of Merger (the time the Merger becomes effective
is referred to herein as the “Effective Time”).


 


1.4 Effects
of the Merger.  The effects of the Merger shall be as provided in this Agreement and in the applicable provisions
of the NCA.  Without limiting the generality of the foregoing, at the Effective Time, all the properties, assets, rights,
privileges, immunities, powers, franchises and authority of Target and Merger Sub shall vest in the Surviving Corporation, and
all obligations of Target and Merger Sub shall become the obligations of the Surviving Corporation, all as provided in the NCA
and the other applicable Laws of the State of Nevada.  At and after the Effective Time, the officers and directors of
the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of Target or Merger Sub, any deeds,
bills of sale, assignments or assurances and to take and do, in the name and on behalf of Target or Merger Sub, any other actions
and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest
in, to and under any of the properties, assets or rights of Target or Merger Sub.


 


1.5 Articles
of Incorporation and Bylaws of the Surviving Corporation.


 


(a) The
articles of incorporation of Merger Sub as in effect at the Effective Time shall be the articles of incorporation of the Surviving
Corporation until thereafter amended in accordance with the provisions thereof and the provisions of this Agreement and applicable
Law; provided, however, that Article 1 of the articles of incorporation of the Surviving Corporation shall be amended
in its entirety to read as follows:  “The name of the corporation is Neutron Energy, Inc.”


 


(b) The
bylaws of Merger Sub as in effect at the Effective Time shall be the bylaws of the Surviving Corporation until thereafter amended
in accordance with the provisions thereof and the provisions of this Agreement and applicable Law.


 


1.6 Directors.  The
directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and
shall hold office until their respective successors are duly elected and qualified, or until their earlier death, resignation or
removal.


 


 


 


 


 



     

     

    

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1.7 Officers.  The
officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation and shall
hold office until their respective successors are duly elected and qualified, or until their earlier death, resignation or removal.


 


1.8 Additional
Actions.  If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any
further deeds, assignments or assurances in Law or any other acts are reasonably necessary or desirable to (a) vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties
or assets of Target, or (b) otherwise carry out the provisions of this Agreement, Target shall execute and deliver all such deeds,
assignments or assurances in Law and to take all acts necessary, proper or desirable to vest, perfect or confirm title to and possession
of such rights, properties or assets in the Surviving Corporation and otherwise to carry out the provisions of this Agreement,
and the officers and directors of the Surviving Corporation are authorized in the name of Target or otherwise to take any and all
such action.


 


ARTICLE 2


CONVERSION OF SECURITIES


 


2.1 Conversion
of Capital Stock.  At the Effective Time, by virtue of the Merger and without any action on the part of Purchaser,
Merger Sub or Target:


 


(a) Each
share of common stock, $0.001 par value, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be
converted into one share of common stock, $0.001 par value, of the Surviving Corporation.  Such newly issued shares shall
thereafter constitute all of the issued and outstanding capital stock of the Surviving Corporation


 


(b) Each
share of Target Common Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares and shares
held by Purchaser or any direct or indirect wholly-owned Subsidiary of Purchaser and subject to Section 2.1(d)) shall be converted
into and represent a number of shares of Purchaser Common Stock equal to the Exchange Ratio.


 


(c) Each
share of capital stock of Target held in the treasury of Target shall be cancelled and retired and no payment shall be made in
respect thereof.


 


(d) Notwithstanding
anything in this Section 2.1 to the contrary, with respect to each Target Stockholder, Purchaser shall not be required to issue
a number of shares of Purchaser Common Stock (the “FIRPTA Withheld Shares”) otherwise issuable to such Target Stockholder
the value of which is equal to the amount required to be withheld by Purchaser from such Target Stockholder pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”
and such Treasury Regulations thereunder shall be referred to herein as “Treas. Reg.”) with respect to the consummation
of the Merger (taking into account any Certificate of Non-Foreign Status or FIRPTA Exemption Certificate applicable to a Target
Stockholder which is provided to Purchaser at or prior to Closing). If at or before Closing a Target Stockholder who is a foreign
person within the meaning of Treas. Reg. Section 1.445-1 (a “Foreign Target Stockholder”), provides Purchaser with
a FIRPTA Affidavit, Purchaser shall issue and distribute FIRPTA Withheld Shares in the amounts due to a Foreign Target Stockholder
within twenty (20) days of Purchaser’s receipt of the certificate or certificates issued by the U.S Internal Revenue Service
(the “IRS”) under IRS Revenue Procedure 2000-35 stating that such Foreign Target Stockholder is subject to no FIRPTA
withholding or a reduced amount of FIRPTA withholding on the Foreign Target Stockholder’s receipt of Purchaser Common Stock
in the Merger (the “FIRPTA Exemption Certificate”). Notwithstanding anything contained herein, upon the Purchaser’s
receipt of (i) notice that a Foreign Target Stockholder has received from the IRS a final denial of such stockholder’s application
for a FIRPTA Exemption Certificate or (ii) a FIRPTA Exemption Certificate providing for a reduced amount of FIRPTA withholding
attributable to a Foreign Target Stockholder, Purchaser shall cease to have any obligation to such Foreign Target Stockholder with
respect to the FIRPTA Withheld Shares attributable to such Foreign Target Stockholder except that in the case of clause (ii) Purchaser
will deliver to a Foreign Target Stockholder a number of FIRPTA Withheld Shares that would have been delivered if such Foreign
Target Stockholder had delivered the FIRPTA Exemption Certificate at Closing.  In the event that a Target Stockholder
does not provide Purchaser at or prior to Closing with (i) a Certificate of Non-Foreign Status, (ii) a FIRPTA Exemption Certificate
or (ii) a FIRPTA Affidavit, Purchaser shall be entitled to withhold and not issue a number of shares of Purchaser Common Stock
the value of which is equal to the amount required to be withheld from such Target Stockholder pursuant to Section 1445 of the
Code with respect to the consummation of the Merger.


 


 


 


 


 



     

     

    

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2.2 Exchange
Ratios; Fractional Shares.


 


(a) The
“Exchange Ratio” (rounded to the nearest ten-thousandth of a share) shall be equal to the quotient obtained by dividing
(i) 3,837,061 by (ii) the number of shares of Target Common Stock issued and outstanding immediately prior to the Effective Time.


 


(b) No
fractional shares of Purchaser Common Stock shall be issued as a result of the conversion provided for in Section 2.1.  To
the extent that an outstanding share of Target Common Stock would otherwise have become a fractional share of Purchaser Common
Stock, the holder thereof, upon presentation of such fractional interest represented by an appropriate certificate for Target Common
Stock to the Exchange Agent pursuant to Section 2.3, will receive a full share of Purchaser Common Stock therefor if the fractional
interest is equal to or greater than 0.5 and no payment in cash, shares or otherwise for a fractional interest that is less than
0.5.  If more than one certificate representing shares of Target Common Stock shall be surrendered for the account of
the same holder, the number of shares of Purchaser Common Stock for which certificates have been surrendered shall be computed
on the basis of the aggregate number of shares represented by the certificates so surrendered.


 


(c) In
the event that prior to the Effective Time, Purchaser shall declare a stock dividend or other distribution payable in shares of
Purchaser Common Stock or securities convertible into shares of Purchaser Common Stock, or effect a stock split, reclassification,
combination or other change with respect to shares of Purchaser Common Stock, the Exchange Ratio shall be adjusted to reflect such
dividend, distribution, stock split, reclassification, combination or other change.


 


 


 


 


 



     

     

    

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2.3 Exchange
of Certificates.


 


(a) Exchange
Agent.  At or immediately following the Effective Time, Purchaser shall deposit with an exchange agent as may jointly
be designated by Purchaser and Target (the “Exchange Agent”), for the benefit of the Target Stockholders, for exchange
in accordance with this Section 2.3, certificates representing shares of Purchaser Common Stock issuable pursuant to Section 2.1
in exchange for outstanding shares of Target Common Stock and shall from time to time deposit cash in an amount reasonably expected
to be paid pursuant to Section 2.3(b) (such shares of Purchaser Common Stock and any dividends or distributions with respect thereto,
being hereinafter referred to as the “Exchange Fund”).


 


(b) Exchange
Procedures.  As soon as practicable after the Effective Time, the Exchange Agent shall mail a letter of transmittal
to each holder of record of a certificate or certificates (the “Certificates”) which immediately prior to the Effective
Time represented outstanding shares of Target Common Stock whose shares were converted into the right to receive shares of Purchaser
Common Stock pursuant to Section 2.1 (which letter of transmittal shall specify that delivery shall be effected, and risk of loss
and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form
and have such other customary provisions as Purchaser may reasonably specify) and instructions for effecting the surrender of the
Certificates in exchange for certificates representing shares of Purchaser Common Stock.  Upon surrender of a Certificate
for cancellation to the Exchange Agent, together with a duly executed letter of transmittal, the holder of such Certificate shall
be entitled to receive in exchange therefor (x) a certificate representing that number of shares of Purchaser Common Stock which
such holder has the right to receive pursuant to Section 2.1 and (y) a check representing the amount of unpaid dividends and distributions
with respect to such shares of Purchaser Common Stock, if any, which such holder has the right to receive pursuant to the provisions
of this Article 2, after giving effect to any required withholding tax, and the shares represented by the Certificate so surrendered
shall forthwith be cancelled.  Purchaser will use its reasonable best efforts to cause the Exchange Agent to send such
certificate and any check within three Business Days of its receipt of a Certificate and a duly executed letter of transmittal.  No
interest will be paid or accrued on the unpaid dividends and distributions with respect to such shares of Purchaser Common Stock,
if any, payable to Target Stockholders.  In the event of a transfer of ownership of shares of Target Common Stock which
is not registered on the transfer records of Target, a certificate representing the proper number of shares of Purchaser Common
Stock, together with a check for the unpaid dividends and distributions with respect to such shares of Purchaser Common Stock,
if any, may be issued to such transferee if the Certificate representing such shares of Target Common Stock held by such transferee
is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence
that any applicable stock transfer Taxes have been paid.  Until surrendered as contemplated by this Section 2.3, each
Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon surrender a certificate
representing shares of Purchaser Common Stock and unpaid dividends and distributions with respect to such shares of Purchaser Common
Stock, if any, as provided in this Article 2.


 


 


 


 


 



     

     

    

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(c) Lost
Certificates.  In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Purchaser shall issue in exchange for such
lost, stolen or destroyed Certificate the shares of Purchaser Common Stock issuable in exchange therefor pursuant to Section 2.1
and unpaid dividends and distributions with respect to such shares of Purchaser Common Stock, if any.  Purchaser shall,
as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to give Purchaser
a bond in such sum as it may direct as indemnity against any claim that may be made against Purchaser with respect to the Certificate
alleged to have been lost, stolen or destroyed.


 


(d) Distributions
with Respect to Unexchanged Shares.  Notwithstanding any other provisions of this Agreement, no dividends or other
distributions declared or made after the Effective Time with respect to shares of Purchaser Common Stock having a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate until the holder shall surrender such Certificate
as provided in this Section 2.3.  Until such Certificate has been surrendered as provided in this Section 2.3, Purchaser
shall deposit the amount of any dividends or other distributions with the Exchange Agent.  Subject to the effect of applicable
Laws, following surrender of any such Certificate, the Exchange Agent shall pay to the holder of the certificates representing
whole shares of Purchaser Common Stock issued in exchange therefor, without interest, (i) at the time of such surrender, the amount
of dividends or other distributions with a record date after the Effective Time theretofore payable with respect to such whole
shares of Purchaser Common Stock and not paid, less the amount of any withholding Taxes which may be required thereon, and (ii)
at the appropriate payment date subsequent to surrender, the amount of dividends or other distributions with a record date after
the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares
of Purchaser Common Stock, less the amount of any withholding Taxes which may be required thereon.


 


2.4 Dissenting
Shares.


 


(a) Dissenting
Shares shall not be converted into or represent the right to receive shares of Purchaser Common Stock, unless the applicable Target
Stockholder shall have forfeited his, her or its right to appraisal under the NCA or properly withdrawn, his, her or its demand
for appraisal.  If such Target Stockholder has so forfeited or withdrawn his, her or its right to appraisal of Dissenting
Shares, then (i) as of the occurrence of such event, such holder’s Dissenting Shares shall cease to be Dissenting Shares
and shall be converted into and represent the right to receive the shares of Purchaser Common Stock issuable in respect of such
shares pursuant to Section 2.1, and (ii) promptly following the occurrence of such event, Purchaser shall deliver to the Exchange
Agent a certificate representing the shares of Purchaser Common Stock to which such holder is entitled pursuant to Section 2.1.


 


(b) Target
shall give Purchaser (i) prompt notice of any written demands for appraisal of any shares of Target Common Stock, withdrawals of
such demands, and any other instruments that relate to such demands received by Target and (ii) the opportunity to direct all negotiations
and proceedings with respect to demands for appraisal under the NCA.  Target shall not, except with the prior written
consent of Purchaser, make any payment with respect to any demands for appraisal of shares of Target Common Stock or offer to settle
or settle any such demands.


 


 


 


 


 



     

     

    

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2.5 Options
and Warrants.


 


(a) The
board of directors of Target shall take such action as is necessary so that at, or prior to, the Effective Time each outstanding
Option shall become fully vested and exercisable and must be exercised by the holder thereof in accordance with its terms (except
as provided in the following sentence) effective as of the Effective Time or it will expire at the Effective Time and the holder
thereof will not be entitled to any consideration therefor or have any rights thereunder.  Any vesting and exercise of
an Option may be conditioned on consummation of the Merger so that if the Merger is not completed, the Option will remain outstanding
and subject to its original vesting schedule.  In the event of any such conditional exercise, all shares of Target Common
Stock underlying such exercised Options will be deemed to have been issued and outstanding immediately prior to the Effective Time
for purposes of this Article 2.  Promptly following the date hereof, Target shall deliver to the holders of Options outstanding
appropriate notices setting forth such holders’ rights pursuant to such Options, as amended by this Section 2.5.


 


(b) Each
Warrant will be cancelled at the Effective Time as provided in the RMB Agreement.


 


2.6 No
Further Ownership Rights in Target Common Stock.  All shares of Purchaser Common Stock issued upon surrender of Certificates
in accordance with the terms hereof (including any dividends or distributions paid pursuant to this Article 2) shall be deemed
to have been issued in full satisfaction of all rights pertaining to such shares of Target Common Stock represented thereby, and
there shall be no further registration of transfers on the stock transfer books of Target of shares of Target Common Stock outstanding
immediately prior to the Effective Time.  If, after the Effective Time, Certificates are presented to the Surviving Corporation
for any reason, they shall be cancelled and exchanged as provided in this Article 2.


 


2.7 Termination
of Exchange Fund.  Any portion of the Exchange Fund which remains undistributed to the Target Stockholders for one
year after the Effective Time shall be delivered to Purchaser, upon demand thereby, and Target Stockholders who have not theretofore
complied with this Article 2 shall thereafter look only to Purchaser for payment of any claim to shares of Purchaser Common Stock,
or dividends or distributions, if any, in respect thereof.


 


2.8 No
Liability.  None of Purchaser, the Surviving Corporation or the Exchange Agent shall be liable to any Person in respect
of any shares of Target Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered
to a public official pursuant to any applicable abandoned property, escheat or similar Law.  If any Certificates shall
not have been surrendered prior to seven years after the Effective Time of the Merger (or immediately prior to such earlier date
on which any cash or any dividends or distributions with respect to whole shares of Target Common Stock in respect of such Certificate
would otherwise escheat to or become the property of any Governmental Entity), any such cash, dividends or distributions in respect
of such Certificate shall, to the extent permitted by applicable Laws, become the property of Purchaser, free and clear of all
claims or interest of any Person previously entitled thereto.


 


 


 


 


 



     

     

    

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2.9 Investment
of Exchange Fund.  The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by Purchaser,
on a daily basis; provided, however, that in no event shall any losses incurred in connection with such investment alter Purchaser’s
obligation to make any payments under this Article 2.  Any interest and other income resulting from such investments
shall be paid to Purchaser upon termination of the Exchange Fund pursuant to Section 2.7.


 


ARTICLE 3 REPRESENTATIONS
AND WARRANTIES


OF PURCHASER AND MERGER
SUB


 


Purchaser and Merger
Sub, jointly and severally, represent and warrant to Target, subject to such exceptions as are specifically disclosed in writing
in the disclosure schedule (arranged in sections and subsections corresponding to the numbered and lettered sections and subsections
contained in this Article 3 with the disclosures in any section or subsection of such schedule qualifying the corresponding section
or subsection in this Article 3, as well as any other section or subsection of this Article 3 if the relevance of the disclosed
item to such other section or subsection is reasonably apparent on its face) supplied by Purchaser and Merger Sub to Target dated
as of the date hereof (the “Purchaser Disclosure Schedule”), that the following are true and correct as of the date
of this Agreement and will be true and correct as of the Effective Time as though made as of the Effective Time, except to the
extent such representations and warranties are specifically made as of a particular date (in which case such representations and
warranties will be true and correct as of such date).


 


3.1 Organization
and Qualification; Subsidiaries.


 


(a) Each
of Purchaser, Merger Sub and their respective Subsidiaries is duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its organization and has the requisite corporate, partnership or similar power and authority to own, lease
and operate its assets and properties and to carry on its business as now conducted, except where the failure to do so has not
had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Purchaser.
Purchaser and each of its Subsidiaries is duly qualified to do business as a foreign corporation or other foreign legal entity,
and is in good standing, under the Laws of all jurisdictions where the nature of its business requires such qualification, except
for those jurisdictions where the failure to be so qualified, individually or in the aggregate, has not had and would not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Purchaser.  Merger Sub
is a new corporation formed solely for purpose of effecting the Merger.


 


(b) A
true and complete list of all of Purchaser’s Subsidiaries, together with the jurisdiction of organization of each such Subsidiary
and the percentage of the outstanding capital stock, or other equity securities or ownership interests, of each such Subsidiary
owned by Purchaser and each other Subsidiary of Purchaser, is set forth in Section 3.1(b) of the Purchaser Disclosure Schedule.


 


 


 


 


 



     

     

    

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3.2 Certificate
of Incorporation and Bylaws.  The Purchaser SEC Reports contain complete and correct copies of its Certificate of
Incorporation and Bylaws (together, the “Purchaser Charter Documents”), as amended to date.  Such Purchaser
Charter Documents, as so amended, are in full force and effect. Purchaser is not in violation of any of the provisions of the Purchaser
Charter Documents.


 


3.3 Capitalization.


 


(a) Simultaneously
with the execution and delivery of this Agreement, Purchaser has entered into the RCF Investment Agreement for the completion of
the equity financing described in such Agreement.  Section 3.3(a) of the Purchaser Disclosure Schedule shows the effect
the transactions contemplated by the RCF Investment Agreement will have on Purchaser’s capitalization as described in this
Section 3.3.  As of the date hereof, the authorized capital stock of Purchaser consists of 200,000,000 shares of common
stock, $0.001 par value of which 95,803,412 were outstanding as of February 24, 2012 (the “Purchaser Common Stock”).  As
of February 24, 2012, 38,125 shares of Purchaser Common Stock are held in treasury and options to acquire an aggregate of 2,985,231
shares of Purchaser Common Stock (“Purchaser Options”) are outstanding under the Purchaser Option Plans.  Purchaser
has also issued 988,771 warrants for the purchase of shares of Purchaser Common Stock (the “Purchaser Warrants”) that
are at an exercise price of $5.78, expiring on May 13, 2013, of which all of the warrants remain outstanding as of February 24,
2012. As of the date hereof, no shares of capital stock of Purchaser are held by any Subsidiary of Purchaser other than Belt Line
Resources, Inc., which owns 46,875 shares of Purchaser Common Stock.  Purchaser owns, directly or indirectly, all of
the issued and outstanding capital stock of each of its Subsidiaries.  All issued and outstanding shares of capital stock
of Purchaser and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable.


 


(b) Except
as set forth in Section 3.3(a) and the Purchaser Options, there are no subscriptions, options, warrants, phantom shares, stock
units, stock appreciation rights, other equity-based awards, equity securities, partnership interests, conversion privileges or
similar ownership interests, calls, rights (including preemptive rights) or Contracts of any character to which Purchaser or any
of its Subsidiaries is a party or by which it is bound obligating Purchaser or any of its Subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, or to repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or
acquisition of, any equity securities, partnership interests or similar ownership interests of Purchaser or any of its Subsidiaries,
or obligating Purchaser or any of its Subsidiaries to grant, extend, accelerate the vesting of or enter into any such subscription,
option, warrant, phantom share, stock unit, stock appreciation right, other equity-based awards, equity security, call, right,
commitment or agreement.  There are no outstanding bonds, debentures, or other evidences of Indebtedness of Purchaser
or any Subsidiary thereof having the right to vote (or that are convertible for or exercisable into securities having the right
to vote) with the holders of the shares of Purchaser Common Stock on any matter.  Except as contemplated by this Agreement,
there is no voting trust, proxy, registration rights agreement, rights plan, anti-takeover plan or other Contract or understanding
to which Purchaser or any of its Subsidiaries is a party or by which it is bound with respect to any equity security of any class
of Purchaser or with respect to any equity security, partnership interest or similar ownership interest of any class of any of
its Subsidiaries.


 


 


 


 


 



     

     

    

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(c) The
shares of Purchaser Common Stock to be issued at the Effective Time as part of the Merger have, subject to the receipt of the Purchaser
Stockholder Approval, been duly authorized and, when issued and delivered in accordance with the terms of this Agreement will have
been validly issued and will be fully paid and nonassessable and the issuance thereof will not be subject to any preemptive or
other similar right.


 


(d) Merger
Sub’s authorized capital stock consists solely of 1,000 shares of common stock, $0.001 par value (“Merger Sub Common
Stock”), of which, as of the date hereof, 100 were issued and outstanding and none were reserved for issuance.  As
of the date hereof, all of the outstanding shares of Merger Sub Common Stock are owned free and clear of any liens, claims or encumbrances
by Purchaser.


 


3.4 Authority
Relative to this Agreement.


 


(a) Purchaser
and Merger Sub have all necessary corporate power and authority to execute and deliver this Agreement and subject to the receipt
of the Purchaser Stockholder Approval, to perform their respective obligations hereunder and to consummate the transactions contemplated
hereby and thereby.  The execution, delivery and performance by Purchaser and Merger Sub of this Agreement and the consummation
by Purchaser and Merger Sub of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate
action on the part of Purchaser and Merger Sub, and no other corporate proceedings on the part of Purchaser or Merger Sub are necessary
to authorize this Agreement or to consummate the transactions so contemplated, other than the Purchaser Stockholder Approval.  This
Agreement has been duly and validly executed and delivered by Purchaser and Merger Sub and, assuming the due authorization, execution
and delivery by Target, constitutes a valid, legal and binding obligation of Purchaser and Merger Sub, enforceable against Purchaser
and Merger Sub in accordance with its terms, except that such enforcement (i) may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and (ii)
is subject to general principles of equity, whether considered in a proceeding at law or in equity.


 


(b) At
a meeting duly called and held, Purchaser’s board of directors has unanimously: (i) determined that this Agreement and the
transactions contemplated hereby (including the Purchaser Share Issuance and the Merger) are advisable and fair to and in the best
interests of Purchaser and the holders of the shares of Purchaser Common Stock; (ii) authorized and approved this Agreement and
the transactions contemplated hereby (including the Purchaser Share Issuance and the Merger); and (iii) resolved to recommend the
approval and adoption of the Purchaser Share Issuance by its stockholders at the Purchaser Stockholder Meeting.


 


3.5 No
Conflict; Required Filings and Consents.


 


(a) The
execution, delivery and performance by Purchaser and Merger Sub of this Agreement and the consummation by Purchaser and Merger
Sub of the transactions contemplated hereby, do not and will not, subject to obtaining the Purchaser Stockholder Approval and receipt
of the Approvals referred to in Section 3.5(b) below, (i) contravene, conflict with or result in a violation or breach of any provision
of the Purchaser Charter Documents or the organizational documents of any of Purchaser’s Subsidiaries, (ii) contravene, conflict
with or result in a violation or breach of any provisions of any Law applicable to Purchaser or any of its Subsidiaries or by which
its or any of their respective properties is bound or affected, (iii) require any consent or other action by any Person under,
constitute a default (or an event that, with or without notice or lapse of time or both, would constitute a default) under, or
cause or permit the termination, amendment, acceleration, triggering or cancellation or other change of any right or obligation
or the loss of any benefit to which Purchaser or any of its Subsidiaries is entitled under (A) any provision of any Contract binding
upon Purchaser or any of its Subsidiaries or (B) any license, permit, franchise, certificate, approval or other similar authorization
(“Permits”) held by, or affecting, or relating in any way to, the assets or business of, Purchaser or any of its Subsidiaries,
or (iv) result in the creation or imposition of any Lien on any asset of Purchaser or any of its Subsidiaries, other than such
exceptions in the case of clause (ii), (iii) or (iv) as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect with respect to Purchaser.


 


 


 


 


 



     

     

    

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(b) The
execution, delivery and performance by Purchaser and Merger Sub of this Agreement and the consummation by Purchaser and Merger
Sub of the transactions contemplated hereby do not, and shall not, require any Approval, action by or in respect of, filing with
or notification to, any Governmental Entity, to be made or obtained by Purchaser or its Subsidiaries, except for (i) the compliance,
if required, with any applicable requirements of the HSR Act, including pre-merger notification requirements, (ii) the filing with
the SEC and the mailing to the holders of Purchaser Common Stock of the Purchaser Proxy Statement, and the filing with the SEC
of any reports that might be required pursuant to the Exchange Act in connection with this Agreement and the transactions contemplated
hereby, (iii) such other filings, authorizations, decisions or orders as may be required by the rules and regulations of NASDAQ
or any state securities or blue sky laws and  (iv) the filing of the appropriate merger documents as required by the
NCA (including the Articles of Merger), and (v) any other Approvals or Permits, which, if not obtained, would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Purchaser.


 


3.6 Compliance;
Permits.  Except as disclosed in the Purchaser SEC Reports, each of Purchaser, Merger Sub and their Subsidiaries
is, and at all times since January 1, 2008 has been, in all material respects in compliance with all Laws, Orders and Permits applicable
to it or by which its properties are bound, subject to or affected.  Except as disclosed in Purchaser’s Annual
Report on Form 10-K for the year ended December 31, 2010 (the “Purchaser 10-K”) or in the Purchaser SEC Reports filed
on or after the date of the Purchaser’s 10-K, no investigation or review by any Governmental Entity is pending or, to the
knowledge of Purchaser or Merger Sub, threatened against Purchaser, Merger Sub or their Subsidiaries, other than, in each such
case, those the outcome of which have not had and would not, individually or in the aggregate, reasonably be expected to adversely
affect Purchaser or Merger Sub.  To the knowledge of Purchaser and Merger Sub, neither Purchaser, Merger Sub nor any
of their Subsidiaries has received any notice that any Permit will be terminated or modified or cannot be renewed in the ordinary
course of business.


 


3.7 SEC
Filings; Financial Statements.


 


(a) Since
January 1, 2008, Purchaser has filed with the SEC all forms, reports, schedules, prospectuses, registration statements, proxy or
information statements and other documents required to be filed by Purchaser under applicable securities Laws (collectively, the
“Purchaser SEC Reports”). The Purchaser SEC Reports, at the time filed (or if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing), complied in all material respects with the requirements of applicable
securities Laws and did not contain any misrepresentation or any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading. None of Purchaser’s Subsidiaries is or has been required to file any reports or other documents
with the SEC or any other securities authority or regulator or any stock exchange or other self-regulatory authority.


 


 


 


 


 



     

     

    

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(b) The
annual audited consolidated financial statements and the unaudited consolidated interim financial statements (including, in each
case, any related notes thereto) contained in the Purchaser SEC Reports (the “Purchaser Financial Statements”) were
prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a basis consistent
throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited statements, do not
contain footnotes as permitted by Form 10-Q under the Exchange Act) are based on the books and records of Purchaser and present
fairly, in all material respects, the consolidated financial position, results of operations and cash flows of Purchaser and its
Subsidiaries as of the dates and for the periods indicated therein (subject, in the case of unaudited statements, to normal, recurring
year-end adjustments that are not expected to be material in amount and the absence of notes thereto) on a consolidated basis.  Purchaser
maintains a standard system of accounting established and administered in accordance with GAAP.  Since September 30,
2011, there have been no material changes in Purchaser’s accounting methods or principles that would be required to be disclosed
in Purchaser’s financial statements in accordance with GAAP except as described in the notes to such financial statements.


 


(c) Since
January 1, 2008, neither Purchaser nor, to the knowledge of Purchaser, any of its Subsidiaries, directors, or officers has received
or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding
the accounting or auditing practices, procedures, methodologies or methods of Purchaser or any of its Subsidiaries or their respective
internal accounting controls, including any complaint, allegation, assertion or claim that Purchaser or any of its Subsidiaries
has engaged in questionable accounting or auditing practices that would reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect with respect to Purchaser.


 


(d) None
of the information to be supplied by or on behalf of Purchaser in for use in connection with the Target Stockholder Meeting will,
at the time of delivery to the Target Stockholders and any amendments or supplements made thereto, and at the time of the Target
Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.


 


(e) None
of the information to be included in or incorporated by reference into the S-4 or the Purchaser Proxy Statement (other than information
supplied by or on behalf of Target for inclusion therein) will, at the time of the effectiveness thereof and the mailing of the
Purchaser Proxy Statement and any amendments or supplements thereto, and at the time of the Purchaser Stockholder Meeting, contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they are made, not misleading.


 


 


 


 


 



     

     

    

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3.8 Controls
and Procedures.


 


(a) Since
the enactment of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Purchaser has been and is in compliance
in all material respects with (i) the applicable provisions of the Sarbanes-Oxley Act and (ii) the applicable listing and corporate
governance rules and regulations of the NASDAQ.


 


(b) Each
of the principal executive officer and the principal financial officer of Purchaser (or each former principal executive officer
and former principal financial officer of Purchaser, as applicable) has made all certifications required under Sections 302 and
906 of the Sarbanes-Oxley Act and the related rules and regulations promulgated thereunder and under the Exchange Act with respect
to the Purchaser SEC Reports. For purposes of the preceding sentence, “principal executive officer” and “principal
financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.


 


3.9 Absence
of Certain Changes or Events.  Except as disclosed in the Purchaser 10-K or in the Purchaser SEC Reports filed on
or after the date of the Purchaser 10-K, since September 30, 2011, the business of Purchaser, Merger Sub and their Subsidiaries
has been conducted in the ordinary course consistent with past practices and there has not been (a) any event, occurrence or development
of a state of circumstances or facts which has had or would, individually or in the aggregate, reasonably be expected to have any
Material Adverse Effect with respect to Purchaser or Merger Sub, (b) any material revaluation by Purchaser or Merger Sub of any
of its assets, or (c) any material damage, destruction or loss (whether or not covered by insurance) with respect to any material
assets of Purchaser or its Subsidiaries.


 


3.10 Absence
of Litigation.  Except as disclosed in the Purchaser 10-K or in the Purchaser SEC Reports filed on or after the date
of the Purchaser 10-K, there is no Action that has been commenced or, to the knowledge of Purchaser, threatened against or affecting
Purchaser, Merger Sub or any Subsidiary thereof, or any of their officers, managers or directors in their capacities as officers,
managers or directors of Purchaser, Merger Sub or their respective Subsidiaries, or any of their respective properties, rights
or assets which, if determined adversely with respect to Purchaser, Merger Sub or their Subsidiary, would, individually or in the
aggregate, reasonably be expected to result in liability for damages or equitable relief or is reasonably likely to materially
and adversely affect the ability of Purchaser or Merger Sub to consummate the transactions contemplated hereby, and no circumstances
exist that could give rise to such an Action.


 


3.11 Property
and Title.  Except as disclosed in the Churchrock Section 8 Feasibility Study – Draft – Dated 12/15/11,
furnished to Target, or in the Purchaser 10-K or in the Purchaser SEC Reports filed on or after the date of the Purchaser 10-K
and applying customary standards in the United States mining industry, each of Purchaser and its Subsidiaries has, to the extent
necessary to permit the operation of their respective businesses as presently conducted good and sufficient fee, leasehold or possessory
title, clear of any title defect or Lien to its operating properties and properties with estimated proven and probable mineral
reserves and/or estimated mineral resources and its other real properties or interests therein to permit the use of land by Purchaser
and its Subsidiaries. Purchaser and its respective Subsidiaries hold all mineral rights required to continue their respective businesses
and operations as currently conducted and as proposed to be conducted.


 


 


 


 


 



     

     

    

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3.12 Fee
Surface and Fee Mineral Lands.  The Purchaser 10-K discloses all material fee surface lands and fee mineral lands
owned by Purchaser and its Subsidiaries.


 


3.13 Surface
and Mineral Leases.  The Purchaser 10-K discloses all surface and mineral leases, usage rights, and agreements held
by Purchaser or its Subsidiaries (the “Purchaser Surface and Mineral Leases”).  Except as disclosed in the
Purchaser 10-K or in the Purchaser SEC Reports filed on or after the date of the Purchaser 10-K, (i) the Purchaser Surface and
Mineral Leases are legal, valid and binding and are in full force and effect in accordance with their respective terms; (ii) Purchaser
and its Subsidiaries have complied in all material respects with the terms and provisions of the Purchaser Surface and Mineral
Leases; and (iii) neither Purchaser nor any of its Subsidiaries has received any notification of any unresolved violation or noncompliance
with the terms of the Purchaser Surface and Mineral Leases.


 


3.14 Mining
Claims.  The Purchaser 10-K describes all unpatented mining claims and mill sites of Purchaser or any of its Subsidiaries
(the “Purchaser Mining Claims”).  Except as disclosed in the Purchaser 10-K or in the Purchaser SEC Reports
filed on or after the date of the Purchaser 10-K and applying customary standards in the United States mining industry and to the
knowledge of Purchaser, with respect to the Purchaser Mining Claims, subject to the paramount title of the United States:  (a)
the unpatented mining claims were properly laid out and monumented; (b) all required location and validation work was properly
performed; (c) location notices and certificates were properly recorded and filed with appropriate Governmental Entities; (d) all
assessment work, location fees, mining claim rental fees, or mining claim maintenance fees required to hold the Purchaser Mining
Claims and maintain them in good standing through the applicable assessment year have been performed or have been paid; (e) all
affidavits of assessment work or of payment of maintenance fees or notices of intent to hold and other filings required to maintain
the claims in good standing have been properly and timely recorded or filed with appropriate Governmental Entities; (f) neither
Purchaser nor any of its Subsidiaries has received any notification of any unresolved violation or noncompliance with location
and maintenance requirements for the Purchaser Mining Claims, and (g) neither Purchaser nor any of its Subsidiaries has knowledge
of conflicting mining claims.


 


3.15 Water
Rights.


 


(a) Purchaser
or any of its Subsidiaries is the sole owner or lessee of the water rights described in the Purchaser 10-K (the “Purchaser
Water Rights”).  Except as disclosed in the Purchaser 10-K or the Purchaser SEC Reports filed on or after the date
of the Purchaser 10-K, Purchaser or its Subsidiaries have good and sufficient title or leasehold interest in the Purchaser Water
Rights, which are free and clear of all Liens.


 


(b) Except
as disclosed in the Purchaser 10-K or the Purchaser SEC Reports filed on or after the date of the Purchaser 10-K, there is no Action
pending, or to Purchaser’s knowledge, threatened against Purchaser or any of its Subsidiaries, or any part of the Purchaser
Water Rights, which, if determined adversely to Purchaser or its Subsidiary, would materially and adversely impact Purchaser’s
or such Subsidiary’s ownership or use of the Purchaser Water Rights.


 


 


 


 


 



     

     

    

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(c) Except
as disclosed in the Purchaser 10-K or the Purchaser SEC Reports filed on or after the date of the Purchaser 10-K, neither Purchaser
nor any of its Subsidiaries has abandoned, or intended to abandon, or, forfeited any of the Purchaser Water Rights and to Purchaser’s
knowledge, no claim or assertion of abandonment has been made by any Person or Governmental Entity.


 


(d) With
respect to the Purchaser Water Rights and except as disclosed in the Purchaser 10-K or the Purchaser SEC Reports filed on or after
the date of the Purchaser 10-K, there have been no unauthorized: (i) changes in points of diversion; (ii) storage of water; (iii)
changes in places of use; or (iv) changes in purpose of use.


 


3.16 Environmental
Matters.  Except as disclosed in the Purchaser 10-K or the Purchaser SEC Reports filed on or after the date of the
Purchaser 10-K:


 


(a) No
Hazardous Substance has been discharged, disposed of, dumped, pumped, deposited, spilled, leaked, emitted or released by Purchaser
or any of its Subsidiaries (or, to the knowledge of Purchaser, is otherwise present) at, on, under or from any property now or
previously owned, leased or operated by Purchaser or any of its Subsidiaries (“Purchaser Property”) in such manner
or quantity that exceeds remediation criteria or standards under any applicable Environmental Laws or as would require investigation
or remediation (either by Purchaser or its Subsidiaries, or for which Purchaser or its Subsidiaries would otherwise be liable)
under any applicable Environmental Laws or as would adversely affect the business or operations of Purchaser or any of its Subsidiaries
and (ii) to the knowledge of Purchaser, there are no liabilities of Purchaser or any of its Subsidiaries arising out of any Environmental
Laws or any agreement with a third party and relating to any Hazardous Substances at, on, under or about any property other than
a Purchaser Property except with respect to which adequate provision in accordance with GAAP has been made in the Purchaser Financial
Statements.


 


(b) The
operations of Purchaser and each of its Subsidiaries are and have been in material compliance with all, and have not violated any,
applicable Environmental Laws.


 


(c) (i)
Purchaser and its Subsidiaries hold all material approvals, certificates, authorizations, agreements, permits, licenses, certificates,
clearances and consents under or pursuant to applicable Environmental Laws (the “Purchaser Environmental Permits”)
necessary for the conduct of Purchaser‘s and its Subsidiaries’ businesses as conducted currently and through the most
recent fiscal year, (ii) all such Purchaser Environmental Permits are disclosed in the Purchase SEC Reports and are valid and in
full force and effect, (iii) Target and its Subsidiaries have not violated any such Purchaser Environmental Permits, and (iv) neither
Purchaser nor any of its Subsidiaries has received any notice that any Purchaser Environmental Permits will be revoked, adversely
modified or not renewed, and to the knowledge of Purchaser there is no reasonable basis for revoking, adversely modifying or refusing
to renew any such Purchaser Environmental Permits.


 


 


 


 


 



     

     

    

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(d) No
Order or Action is pending, and to Purchaser’s knowledge, no Order or Action has been threatened, by any Governmental Entity
or third party against or, to Purchaser’s knowledge, affecting Purchaser or any of its Subsidiaries concerning any alleged
violation of or liability under any Environmental Law or concerning any Hazardous Substance.


 


(e) No
Environmental Lien is pending, and to Purchaser’s knowledge, no Environmental Lien has been threatened against or affecting
Purchaser, any of its Subsidiaries, or any real or personal property of Purchaser or any of its Subsidiaries.


 


3.17 Agreements,
Contracts and Commitments.  Each of the Contracts filed as an exhibit to the Purchaser 10-K or any of the Purchaser
SEC Reports filed on or after the date of the Purchaser 10-K is valid and in full force and effect.


 


3.18 Vote
Required.  The only vote of the holders of any class or series of Purchaser’s capital stock or other securities
of Purchaser necessary to approve the transactions contemplated by this Agreement is the affirmative vote in favor of the Purchaser
Share Issuance by a majority of the votes cast on the Purchaser Share Issuance by the holders of the outstanding shares of Purchaser
Common Stock (such approval, the “Purchaser Stockholder Approval”).


 


3.19 Brokers.  Purchaser
and its Subsidiaries have not incurred, nor will they incur, directly or indirectly, any liability for brokerage or finder's fees
or agent’s commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby, except
for the fees of Cormark Securities Inc.


 


ARTICLE 4


REPRESENTATIONS AND
WARRANTIES OF TARGET


 


Target represents and
warrants to Purchaser and Merger Sub, subject to such exceptions as are specifically disclosed in writing in the disclosure schedule
(arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Article
4 with the disclosures in any section or subsection of such schedule qualifying the corresponding section or subsection in this
Article 4, as well as any other section or subsection of this Article 4 if the relevance of the disclosed item to such other section
or subsection is reasonably apparent on its face) supplied by Target to Purchaser dated as of the date hereof (the “Target
Disclosure Schedule”), that the following are true and correct as of the date of this Agreement and will be true and correct
as of the Effective Time as though made as of the Effective Time, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations and warranties will be true and correct as of such
date).


 


4.1 Organization
and Qualification; Subsidiaries.


 


(a) Each
of Target and its Subsidiaries is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its
organization and has the requisite corporate, partnership or similar power and authority to own, lease and operate its assets and
properties and to carry on its business as now conducted, except where the failure to do so has not had and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Target.


 


 


 


 


 



     

     

    

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(b) A
true and complete list of all of Target’s Subsidiaries, together with the jurisdiction of organization of each such Subsidiary
and the percentage of the outstanding capital stock, or other equity securities or ownership interests, of each such Subsidiary
owned by Target and each other Subsidiary of Target, is set forth in Section 4.1(b) of the Target Disclosure Schedule.  Other
than with respect to the Subsidiaries set forth in Section 4.1(b) of the Target Disclosure Schedule, Target does not directly or
indirectly own any equity interest in, or any interest convertible into or exchangeable or exercisable for any equity interest
in, any corporation, partnership, joint venture or other business entity, other than equity interests held for investment that
do not exceed a 1% interest in any such entity.


 


(c) All
of the outstanding capital stock of, or other equity securities or ownership interests in, each Subsidiary of Target, is owned
by Target, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction
on the right to vote, sell or otherwise dispose of such capital stock or other equity securities or ownership interests), except
for restrictions imposed by applicable securities laws.


 


(d) Neither
Target nor any of its Subsidiaries has agreed nor is it obligated to make nor is it bound by any Contract under which it may become
obligated to acquire any material equity interest or investment in, or make any material capital contribution to, any Person (other
than a wholly-owned Subsidiary of Target).


 


(e) Target
and each of its Subsidiaries is duly qualified to do business as a foreign corporation or other foreign legal entity, and is in
good standing, under the Laws of all jurisdictions where the nature of its business requires such qualification, except for those
jurisdictions where the failure to be so qualified, individually or in the aggregate, has not had and would not be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect with respect to Target.


 


4.2 Articles
of Incorporation and Bylaws.  Target has made available to Purchaser complete and correct copies of its Articles
of Incorporation and Bylaws or other similar organizational documents, as well as the equivalent organizational documents for each
of its Subsidiaries (collectively, the “Target Charter Documents”), as amended to date. Such Target Charter Documents,
as so amended, are in full force and effect. Neither Target nor any Subsidiary of Target is in violation of any of the provisions
of the Target Charter Documents, as applicable.


 


4.3 Capitalization.


 


(a) As
of the date hereof, the authorized capital of Target consists of (i) 200,000,000 shares of common stock, par value $0.001 per share
(the “Target Common Stock”), of which 59,632,712 are outstanding as of February 24, 2012 and (ii) 10,000,000 shares
of preferred stock, par value $0.001 per share, none of which are outstanding as of the date hereof.  As of the date
hereof, options to acquire an aggregate of 5,206,666 shares of Target Common Stock (the “Options”) are outstanding
under Target Option Plans.  Target has also issued warrants and rights to receive warrants for the purchase of 5,885,714
shares of Target Common Stock (the “Warrants”) outstanding as of the date hereof, all of which are held by RMBAH and
will be terminated at Closing pursuant to the RMB Agreement.  As of the date hereof, no shares of capital stock of Target
are held by any Subsidiary of Target or in treasury by Target.  All issued and outstanding shares of capital stock of
Target and each of its Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable.  Section
4.3(a) of the Target Disclosure Schedule contains a correct and complete list of (x) the names and addresses of the holders
of all the outstanding shares of Target Common Stock, Options and Warrants and (y) the number of shares of Target Common Stock
owned beneficially and of record by each holder thereof and the number of shares of Target Common Stock issuable to each Option
or Warrant holder pursuant to the Options and Warrants, including, with respect to the Options, the applicable vesting schedule,
exercise price and whether the Option is intended to qualify as an incentive stock option under the Code.


 


 


 


 


 



     

     

    

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(b) Except
for the Options and the Warrants, there are no subscriptions, options, warrants, phantom shares, stock units, stock appreciation
rights, other equity-based awards, equity securities, partnership interests, conversion privileges or similar ownership interests,
calls, rights (including preemptive rights) or Contracts of any character to which Target or any of its Subsidiaries is a party
or by which it is bound obligating Target or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered
or sold, or to repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or acquisition of, any equity securities,
partnership interests or similar ownership interests of Target or any of its Subsidiaries, or obligating Target or any of its Subsidiaries
to grant, extend, accelerate the vesting of or enter into any such subscription, option, warrant, phantom share, stock unit, stock
appreciation right, other equity-based award, equity security, call, right, commitment or agreement. There are no outstanding bonds,
debentures, or other evidences of Indebtedness of Target or any Subsidiary thereof having the right to vote (or that are convertible
for or exercisable into securities having the right to vote) with the Target Stockholders on any matter. Except as contemplated
by this Agreement, there is no voting trust, proxy, registration rights agreement, rights plan, anti-takeover plan or other Contract
or understanding to which Target or any of its Subsidiaries is a party or by which it is bound with respect to any equity security
of any class of Target or with respect to any equity security, partnership interest or similar ownership interest of any class
of any of its Subsidiaries.


 


4.4 Authority
Relative to this Agreement.


 


(a) Target
has all necessary corporate power and authority to execute and deliver this Agreement and, subject to the receipt of the Target
Stockholder Approval, to perform its obligations hereunder and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance by Target of this Agreement and the consummation by Target of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action on the part of Target, and no other corporate proceedings
on the part of Target are necessary to authorize this Agreement, or to consummate the transactions so contemplated, other than
the Target Stockholder Approval. This Agreement has been duly and validly executed and delivered by Target and, assuming the due
authorization, execution and delivery by Purchaser and Merger Sub, constitutes a valid, legal and binding obligation of Target,
enforceable against Target in accordance with its terms, except that such enforcement (i) may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally,
and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity.


 


 


 


 


 



     

     

    

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(b) At
a meeting duly called and held, Target’s board of directors has unanimously: (i) determined that this Agreement and the transactions
contemplated hereby (including the Merger) are fair to and in the best interests of Target and the Target Stockholders; (ii) authorized
and approved this Agreement and the transactions contemplated hereby (including the Merger); and (iii) resolved to recommend approval
and adoption of the Merger by Target’s stockholders at the Target Stockholder Meeting.


 


4.5 No
Conflict; Required Filings and Consents.


 


(a) The
execution, delivery and performance by Target of this Agreement and the consummation by Target of the transactions contemplated
hereby do not and will not, subject to obtaining the Target Stockholder Approval and receipt of the Approvals referred to in Section
4.5(b) below, (i) contravene, conflict with or result in a violation or breach of any provision of the Target Charter Documents,
(ii) contravene, conflict with or result in a violation or breach of any provisions of any Law applicable to Target or any of its
Subsidiaries or by which its or any of their respective properties is bound or affected, (iii) require any consent or other action
by any Person under, constitute a default (or an event that, with or without notice or lapse of time or both, would constitute
a default) under, or cause or permit the termination, amendment, acceleration, triggering or cancellation or other change of any
right or obligation or the loss of any benefit to which Target or any of its Subsidiaries is entitled under (A) any provision of
any Contract binding upon Target or any of its Subsidiaries or (B) any Permit held by, or affecting, or relating in any way to,
the assets or business of, Target or any of its Subsidiaries, or (iv) result in the creation or imposition of any Lien on any asset
of Target or any of its Subsidiaries, other than such exceptions in the case of clause (ii), (iii) or (iv) as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Target.


 


(b) The
execution, delivery and performance by Target of this Agreement and the consummation by Target of the transactions contemplated
hereby do not, and shall not, require any Approval, action by or in respect of, filing with or notification to, any Governmental
Entity, to be made or obtained by Target or its Subsidiaries, except for (i) compliance, if required, with any applicable requirements
of the HSR Act, including pre-merger notification requirements thereunder and (ii) the filing of the appropriate merger documents
as required by the NCA (including the Articles of Merger).


 


4.6 Compliance;
Permits.


 


(a) Each
of Target and its Subsidiaries is, and at all times since January 1, 2008 has been, in all material respects, in compliance with
all Laws and Orders applicable to it or by which its properties are bound or affected.  No investigation or review by
any Governmental Entity is pending or, to the knowledge of Target, threatened against Target or its Subsidiaries, other than, in
each such case, those the outcome of which have not had and would not, individually or in the aggregate, reasonably be expected
to adversely affect Target.


 


(b) Each
of Target and its Subsidiaries owns, possesses or has obtained, and is, and at all times since January 1, 2008 has been, in all
material respects in compliance with all Permits of or from any Governmental Entity necessary to conduct its business as now conducted.  All
material Target Permits are listed in Section 4.6(b) of the Target Disclosure Schedule.  To the knowledge of Target,
neither Target nor any of its Subsidiaries has received any notice that any Permit will be terminated or modified or cannot be
renewed in the ordinary course of business.


 


 


 


 


 



     

     

    

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4.7 Financial
Statements.


 


(a) Target
has furnished to Purchaser complete copies of Target’s audited financial statements consisting of the balance sheet of Target
as of December 31 in each of the years 2008, 2009 and 2010 and the related statements of income and retained earnings, stockholders’
equity and cash flow for the years then ended (the “Audited Financial Statements”), and unaudited financial statements
consisting of the balance sheet of Target as of September 30, 2011 (the “Most Recent Balance Sheet”) and
the related statements of income and retained earnings, stockholders’ equity and cash flow for the three-month period then
ended (the “Interim Financial Statements” and, together with the Audited Financial Statements, the “Target Financial
Statements”). The Target Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout
the period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (the
effect of which will not be materially adverse) and the absence of notes.  The Target Financial Statements are based
on the books and records of Target, and fairly present, in all material respects, the financial condition of Target as of the respective
dates they were prepared and the results of the operations of Target for the periods indicated subject, in the case of the Interim
Financial Statements, to normal and recurring year-end adjustments.  Target maintains a standard system of accounting
established and administered in accordance with GAAP.  Since the date of the Most Recent Balance Sheet, there
have been no material changes in Target’s accounting methods or principles that would be required to be disclosed in Target’s
financial statements in accordance with GAAP except as described in the notes to such financial statements.


 


(b) The
books and records of Target and its Subsidiaries, in all material respects, (i) have been maintained in accordance with good business
practices on a basis consistent with prior years, (ii) state in reasonable detail the material transactions and dispositions of
the assets of Target and its Subsidiaries and (iii) accurately and fairly reflect the basis for the Target Financial Statements.


 


(c) Target
has designed and maintains a system of internal controls over financial reporting sufficient to provide reasonable assurances regarding
the reliability of financial reporting and the preparation of financial statements in conformity with GAAP.


 


(d) Since
January 1, 2008, neither Target nor, to the knowledge of Target, any of its Subsidiaries, directors, officers or auditors of Target
has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written
or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Target or any of its Subsidiaries
or their respective internal accounting controls, including any complaint, allegation, assertion or claim that Target or any of
its Subsidiaries has engaged in questionable accounting or auditing practices.


 


(e) None
of the information to be supplied by or on behalf of Target or its Affiliates for inclusion in the S-4 or the Purchaser Proxy Statement
will, at the time of the effectiveness thereof and at the time of the mailing of the Purchaser Proxy Statement and any amendments
or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not
misleading.  If Target provides information to Target Stockholders in connection with the Target Stockholder Approval
other than the S-4 or the Purchaser Proxy Statement, none of such information will, at the time of delivery and any amendments
or supplements made thereto, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made,
not misleading.


 


 


 


 


 



     

     

    

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4.8 No
Undisclosed Liabilities.  Neither Target nor any of its Subsidiaries has any liabilities (absolute, accrued, contingent,
determined, determinable or otherwise) or obligations, in each case, of the type that would be required to be disclosed on a consolidated
balance sheet of Target (or the notes thereto) other than (a) liabilities or obligations fully reflected or reserved against in
the Most Recent Balance Sheet (or the notes thereto), included in the Target Financial Statements, (b) liabilities incurred since
the date of the Most Recent Balance Sheet in the ordinary course of business consistent with past practice, (c) obligations arising
pursuant to the terms of this Agreement or the Contracts disclosed in Section 4.22 of the Target Disclosure Schedule (or not required
to be so disclosed), or (d) liabilities or obligations that do not individually or in the aggregate exceed $25,000.


 


4.9 Absence
of Certain Changes or Events.  Since the date of the Most Recent Balance Sheet, the business of Target and its Subsidiaries
has been conducted in the ordinary course consistent with past practices and there has not been (a) any event, occurrence or development
of a state of circumstances or facts which has had or would, individually or in the aggregate, reasonably be expected to have any
Material Adverse Effect with respect to Target, (b) any material revaluation by Target of any of its assets, or (c) any material
damage, destruction or loss (whether or not covered by insurance) with respect to any material assets of Target or its Subsidiaries.


 


4.10 Absence
of Litigation.  There is no Action that has been commenced or, to the knowledge of Target, threatened against or
affecting Target or any Subsidiary thereof, or any of their officers, managers or directors in their capacities as officers, managers
or directors of Target or its Subsidiary, or any of their respective properties, rights or assets which, if determined adversely
with respect to Target or its Subsidiary, would, individually or in the aggregate, reasonably be expected to result in liability
for damages or equitable relief or is reasonably likely to materially and adversely affect the ability of Target to consummate
the transactions contemplated hereby, and no circumstances exist that could give rise to such an Action.  Neither Target
nor any Subsidiary thereof, nor any of their respective properties, rights or assets, is subject to any outstanding Order that
has had or would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Target.


 


4.11 Employee
Plans.


 


(a) Section
4.11(a) of the Target Disclosure Schedule contains a true and complete list of (i) all Target Employee Plans currently in effect
and (ii) all Target Employee Plans under which there remains any outstanding liability.  Target has provided Purchaser
with a true, accurate and complete copy of each Target Employee Plan listed in such Section 4.11(a) of the Target Disclosure Schedule
which is in writing, as currently in effect (and in the case of any Target Employee Plan that is not in written form, a written
description of such Target Employee Plan, together with either the most recent financial statements prepared for each such Target
Employee Plan, if any.


 


 


 


 


 



     

     

    

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(b) Target
and each Subsidiary thereof, has complied, in all material respects, with all the terms of, and all applicable Laws in respect
of, each Target Employee Plan sponsored, maintained or contributed to by them (as applicable).


 


(c) Each
Target Employee Plan intended to be tax qualified under the Code has been the subject of a determination letter (or in the case
of a master or prototype plan, a comparable opinion letter) from the IRS to the effect that the form of such Target Employee Plan
is qualified and exempt from Federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code.  Each
Target Employee Plan intended to be tax qualified under the Code has been established, registered and operated in all material
respects in accordance with the applicable requirements of the Code and other applicable Law. No step has been taken, no event
has occurred and no condition or circumstance exists that has resulted or could reasonably be expected to result in any Target
Employee Plan being ordered or required to be terminated or wound up in whole or in part or having its tax qualification or registration
under applicable Law refused or revoked, or being placed under the administration of any trustee or receiver or regulatory authority
or being required to pay any material Taxes, fees, penalties or levies under applicable Laws. There are no actions, suits, claims
(other than routine claims for payment of benefits in the ordinary course), trials, demands, investigations, arbitrations, or other
proceedings which are pending or threatened in respect of any of the Target Employee Plans or their assets which individually or
in the aggregate would have a Material Adverse Effect with respect to Target.


 


(d) No
event has occurred or condition exists with respect to any Target Employee Plan or relating to any individual who currently or
previously provided personal services to Target or any Subsidiary or ERISA Affiliate thereof (if any), whether as an employee,
an independent contractor or otherwise (or any beneficiary or dependent of any such individual) which, individually or in the aggregate,
is reasonably likely to result in a Material Adverse Effect with respect to Target.


 


(e) The
consummation of the transactions contemplated by this Agreement will not by itself entitle any employee or any independent contractor
of Target or any Subsidiary thereof to severance or similar pay, or accelerate the time of payment or vesting or trigger any payment
of funding (through a grantor trust or otherwise) or compensation or benefits under, increase the amount payable or trigger any
other material obligation pursuant to, any Target Employee Plan.


 


(f) The
consummation of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of additional acts
or events) result in any payment under any Target Employee Plan that would constitute an “excess parachute payment”
for purposes of Section 280G or 4999 of the Code.


 


 


 


 


 



     

     

    

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4.12 Labor
and Employee Matters.


 


(a) There
are no collective bargaining agreements to which Target or any Subsidiary thereof is a party or involving employees of Target or
any Subsidiary thereof.  To the knowledge of Target, there are no threatened or apparent union organizing activities
involving employees of Target or any Subsidiary thereof. There is no strike or lockout occurring or, to the knowledge of Target,
threatened affecting Target or any Subsidiary thereof.


 


(b) Neither
Target nor any Subsidiary thereof is subject to any claim for wrongful dismissal, constructive dismissal or any other tort claim,
actual or threatened, or any litigation, actual or threatened, relating to its employees or independent contractors (including
any termination of such persons). Target and each Subsidiary thereof has operated in material compliance with all applicable Laws
with respect to employment and labor, including employment and labor standards, employment equity, pay equity, workers’ compensation,
human rights and labor relations and there are no current, pending or threatened proceedings before any board or tribunal with
respect to any of the areas listed herein. Target and each Subsidiary thereof has operated in material compliance with the National
Labor Relations Act (U.S.) as amended, and the rules and regulations promulgated thereunder and any and all similar Laws.


 


(c) Section
4.12(c) of the Target Disclosure Schedule sets forth a complete and accurate list, as of September 30, 2011 and as of the date
hereof, of all (i) employees, independent contractors and consultants employed or retained by or on behalf of the Target and, for
each such Person, his or her work location, position, status (i.e., full- or part-time employee, temporary employee, independent
contractor, consultant), annual salary or hourly wage rate, as applicable, or target bonus for 2012 (if any), and the date on which
he or she became employed. Except as set forth in Section 4.12(c) of the Target Disclosure Schedule or as otherwise provided pursuant
to applicable Law, each such person can be dismissed immediately and without advance notice or Liability to such person (other
than for salary or wages for time worked or benefits disclosed in Section 4.12(c) of the Target Disclosure Schedule).


 


4.13 Property
and Title.  Applying customary standards in the United States mining industry, each of Target and its Subsidiaries
has, to the extent necessary to permit the operation of their respective businesses as presently conducted good and sufficient
fee, leasehold or possessory title, clear of any title defect or Lien to its operating properties and properties with estimated
proven and probable mineral reserves and/or estimated mineral resources and its other real properties or interests therein to permit
the use of land by Target and its Subsidiaries. Target and its Subsidiaries hold all mineral rights required to continue their
respective businesses and operations as currently conducted and as proposed to be conducted.


 


4.14 Fee
Surface and Fee Mineral Lands.  Section 4.14 of the Target Disclosure Schedule lists all material fee surface lands
and fee mineral lands owned by Target and its Subsidiaries.


 


4.15 Surface
and Mineral Leases.  Section 4.15 of the Target Disclosure Schedule lists all surface and mineral leases, usage rights,
and agreements held by Target or any of its Subsidiaries (the “Target Surface and Mineral Leases”).  The
Target Surface and Mineral Leases are legal, valid and binding and are in full force and effect in accordance with their respective
terms.  Target and its Subsidiaries have complied in all material respects with the terms and provisions of the Target
Surface and Mineral Leases.  Neither Target nor any of its Subsidiaries has received any notification of any unresolved
violation or noncompliance with the terms of the Target Surface and Mineral Leases.


 


 


 


 


 



     

     

    

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4.16 Mining
Claims.  Section 4.16 of the Target Disclosure Schedule describes all unpatented mining claims and mill sites of
Target or any of its Subsidiaries (the “Target Mining Claims”).  Applying customary standards in the United
States mining industry and to the knowledge of Target, with respect to the Target Mining Claims, subject to the paramount title
of the United States:  (a) the unpatented mining claims were properly laid out and monumented; (b) all required location
and validation work was properly performed; (c) location notices and certificates were properly recorded and filed with appropriate
Governmental Entities; (d) all assessment work, location fees, mining claim rental fees, or mining claim maintenance fees required
to hold the Target Mining Claims and maintain them in good standing through the assessment year ending August 31, 2012 have been
performed or have been paid; (e) all affidavits of assessment work or of payment of maintenance fees or notices of intent to hold
and other filings required to maintain the claims in good standing have been properly and timely recorded or filed with appropriate
Governmental Entities; (f) neither Target nor any of its Subsidiaries has received any notification of any unresolved violation
or noncompliance with location and maintenance requirements for the Target Mining Claims, and (g) neither Target nor any of its
Subsidiaries has knowledge of conflicting mining claims.


 


4.17 Water
Rights.


 


(a) Target
or its Subsidiary is the lessee of the water rights set forth in Section 4.17(a) of the Target Disclosure Schedule (the “Target
Water Rights”).  Target or its Subsidiary have a good and sufficient leasehold interest in the Target Water Rights
pursuant to the instruments set forth in Section 4.17(a) of the Target Disclosure Schedule, which leasehold interest is free and
clear of all Liens.


 


(b) Neither
Target nor any of its Subsidiaries has received any written notice from any Governmental Entity that use of the Target Water Rights
violates any Laws of any Governmental Entity having jurisdiction over the Target Water Rights.


 


(c) There
is no Action pending, or to Target’s knowledge, threatened against Target or any of its Subsidiaries, or any part of the
Target Water Rights, which, if determined adversely to Target or Subsidiary, would materially and adversely impact Target or such
Subsidiary’s ownership or use of the Target Water Rights.


 


(d) Neither
Target nor any of its Subsidiaries has abandoned, or intended to abandon, or, forfeited any of the Target Water Rights and to Target’s
knowledge, no claim or assertion of abandonment has been made by any Person or Governmental Entity.


 


(e) With
respect to the Target Water Rights, there have been no unauthorized: (i) changes in points of diversion; (ii) storage of water;
(iii) changes in places of use; or (iv) changes in purpose of use.


 


 


 


 


 



     

     

    

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4.18 Insurance.  Target
maintains insurance policies covering the assets, business, equipment, properties, operations, employees, officers and directors
of Target and its Subsidiaries (collectively, the “Target Insurance Policies”) which are of the type and in amounts
which are customary for the conduct of its business and are in full force in effect on the date hereof and will be in full force
and effect on the Effective Time. To Target’s knowledge, (a) neither Target nor any Subsidiary thereof has received any notice
from any insurer or agent of any insurer of any cancellation or termination of any policy, including by reason of the execution,
delivery or performance of this Agreement, and (b) there is no material claim by Target or any of its Subsidiaries pending under
any of the material Target Insurance Policies as to which coverage has been questioned, denied or disputed by the underwriters
of such policies or bonds that would have a Material Adverse Effect with respect to Target.  Neither Target nor any Subsidiary
thereof is in breach of or default under, or has taken any action which could permit termination or material modification of, any
material insurance policies.


 


4.19 Taxes.


 


(a) Each
of Target and its Subsidiaries have filed all Tax Returns that they were required to file under applicable Laws.  All
such Tax Returns were correct and complete in all respects and were prepared in substantial compliance with all applicable Laws.  All
Taxes due and owing by Target or any of its Subsidiaries (whether or not shown on any Tax Return) have been paid.  Neither
Target nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.  No
claim has ever been made by an authority in a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that
Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.  There are no Liens for Taxes
(other than Taxes not yet due and payable) upon any of the assets of Target or any of its Subsidiaries.


 


(b) Each
of Target and its Subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with any
amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.


 


(c) No
federal, state, local, or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with
respect to Target or any of its Subsidiaries.  Neither Target nor any of its Subsidiaries has received from any federal,
state, local, or non-U.S. taxing authority (including jurisdictions where Target or its Subsidiaries have not filed Tax Returns)
any (i) written notice indicating an intent to open an audit or other review, (ii) request for information related to Tax matters,
or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted, or assessed by any taxing authority
against Target or any of its Subsidiaries.  Section 4.19(c) of the Target Disclosure Schedule lists all federal, state,
local, and non-U.S. income Tax Returns filed with respect to any of Target or its Subsidiaries for taxable periods ended on or
after December 31, 2006, indicates those Tax Returns that have been audited, and indicates those Tax Returns that currently are
the subject of audit.  Correct and complete copies of all federal income Tax Returns, examination reports, and statements
of deficiencies assessed against or agreed to by Target or any of its Subsidiaries filed or received since December 31, 2006 have
been delivered to Purchaser.


 


 


 


 


 



     

     

    

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(d) Neither
Target nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency.


 


(e) Each
of Target and its Subsidiaries have disclosed on their federal income Tax Returns all positions taken therein that could give rise
to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code.  Neither Target
nor any of its Subsidiaries is a party to or bound by any Tax allocation or sharing agreement.  Neither Target nor any
of its Subsidiaries (A) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a
group the common parent of which was Target) or (B) has any liability for the Taxes of any Person (other than Target or any of
its Subsidiaries) under Treas. Reg. §1.1502-6 (or any similar provision of state, local, or non-U.S. law), or as a transferee
or successor, by contract, or otherwise.


 


(f) The
unpaid Taxes of Target and its Subsidiaries (A) did not, as of January 31, 2012, exceed the reserve for Tax liability (rather than
any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of
the Most Recent Balance Sheet (rather than in any notes thereto) and (B) do not exceed that reserve as adjusted for the passage
of time through the Closing Date in accordance with the past custom and practice of Target and its Subsidiaries in filing their
Tax Returns.  Since the date of the Most Recent Balance Sheet, neither Target nor any of its Subsidiaries has incurred
any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the Target’s ordinary
course of business consistent with past custom and practice.


 


(g) Neither
Target nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:


 


(i) change
in method of accounting for a taxable period ending on or prior to the Closing Date;


 


(ii) “closing
agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, or non-U.S.
income Tax law) executed on or prior to the Closing Date;


 


(iii) intercompany
transaction or excess loss account described in Treasury Regulations under Code §1502 (or any corresponding or similar provision
of state, local, or non-U.S. income Tax law);


 


(iv) installment
sale or open transaction disposition made on or prior to the Closing Date;


 


(v) prepaid
amount received on or prior to the Closing Date; or


 


(vi) election
under Section 108(i) of the Code.


 


(h) Neither
Target nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person,
in a transaction that was purported or intended to be governed in whole or in part by Code §355 or Code §361.Neither
Target nor any of its Subsidiaries is or has been a party to any ‘‘reportable transaction,’’ as defined
in Code §6707A(c)(1) and Reg. §1.6011-4(b).


 


 


 


 


 



     

     

    

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(i) Neither
Target nor any of its Subsidiaries (A) is a “controlled foreign corporation” as defined in Code §957, (B) is a
“passive foreign investment company” within the meaning of Code §1297, or (C) has a permanent establishment (within
the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country
in which it is organized.


 


(j) Neither
Target nor any of its Subsidiaries has received any private letter ruling from the IRS (or any comparable ruling from any other
taxing authority).


 


4.20  Environmental
Matters.


 


(a) No
Hazardous Substance has been discharged, disposed of, dumped, pumped, deposited, spilled, leaked, emitted or released by Target
or any of its Subsidiaries (or, to the knowledge of Target, is otherwise present) at, on, under or from any property now or previously
owned, leased or operated by Target or any of its Subsidiaries (“Target Property”) in such manner or quantity that
exceeds remediation criteria or standards under any applicable Environmental Laws or as would require investigation or remediation
(either by Target or its Subsidiaries, or for which Target or its Subsidiaries would otherwise be liable) under any applicable
Environmental Laws or as would adversely affect the business or operations of Target or any of its Subsidiaries and (ii) to the
knowledge of Target, there are no liabilities of Target or any of its Subsidiaries arising out of any Environmental Laws or any
agreement with a third party and relating to any Hazardous Substances at, on, under or about any property other than a Target Property
except with respect to which adequate provision in accordance with GAAP has been made in the Target Financial Statements.


 


(b) The
operations of Target and each of its Subsidiaries are and have been in material compliance with all, and have not violated any,
applicable Environmental Laws.


 


(c) (i)
Target and its Subsidiaries hold all material approvals, certificates, authorizations, agreements, permits, licenses, certificates,
clearances and consents under or pursuant to applicable Environmental Laws (the “Target Environmental Permits”) necessary
for the conduct of Target’s and its Subsidiaries’ businesses as conducted currently and through the most recent fiscal
year, (ii) all such Target Environmental Permits are listed in Section 4.20(c) of the Target Disclosure Schedule and are valid
and in full force and effect, (iii) Target and its Subsidiaries have been in material compliance with any such Target Environmental
Permits, and (iv) neither Target nor any of its Subsidiaries has received any notice that any Target Environmental Permits will
be revoked, adversely modified or not renewed, and to the knowledge of Target there is no reasonable basis for revoking, adversely
modifying or refusing to renew any such Target Environmental Permits.


 


(d) No
Order or Action is pending, and to Target’s knowledge, no Order or Action has been threatened, by any Governmental Entity
or third party against or, to Target’s knowledge, affecting Target or any of its Subsidiaries concerning any alleged violation
of or liability under any Environmental Law or concerning any Hazardous Substance.


 


 


 


 


 



     

     

    

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(e) No
Environmental Lien is pending, and to Target’s knowledge, no Environmental Lien has been threatened against or affecting
Target, any of its Subsidiaries, or any real or personal property of Target or any of its Subsidiaries.


 


4.21 Intellectual
Property.


 


(a) “Proprietary
Rights” means all of the patents, inventions, internet domain names, URL addresses, trade secrets, trademarks, trade names
and copyrights, and all applications therefor and registrations thereof, necessary to conduct Target’s business as it is
currently conducted, other than any software which is commercially available and the subject of an “off-the-shelf”,
“click-wrap” or “shrink-wrap” license or similar agreement. Section 4.21(a) of the Target Disclosure Schedule
sets forth a true, correct and complete list of all patents, registered internet domain names, registered URL addresses, registered
trademarks, registered copyrights and all applications therefor which are owned by Target, included in the Proprietary Rights and
material to the conduct of Target’s business as it is currently conducted.  Target owns or is licensed to use the
Proprietary Rights free and clear of all Liens granted or permitted by Target.  Except as set forth in Section 4.21(a)
of the Target Disclosure Schedule, Target owns or possesses adequate and enforceable rights to use all patents, service marks,
trade names, trademarks, copyrights or trade secrets included within the Proprietary Rights to the extent necessary for the conduct
of Target’s business as it is currently conducted, except to the extent any such failure to so own or possess such rights
would not reasonably be expected to have a Material Adverse Effect.  None of the Proprietary Rights is subject to any
outstanding order, and no Action is pending or, to the Knowledge of the Principal Sellers, threatened, that challenges the validity,
enforceability, ownership, use or licensing of such Proprietary Rights.


 


(b) Except
for licenses and agreements into which Target enters in the ordinary course of business, Section 4.21(b) of the Target Disclosure
Schedule sets forth all licenses, sublicenses, assignments and other agreements under which Target is either a licensor, licensee,
assignor or assignee of any Proprietary Rights which are material to the conduct of Target’s business as it is currently
conducted.


 


(c) The
owned Proprietary Rights do not infringe upon any domestic or foreign copyright, patent, trademark, trade name, service mark, mask
work, trade secret or other intellectual property or proprietary right owned by another Person, and Target has not received any
written notice of any claim of infringement or any other claim or proceeding relating to any such copyright, patent, trademark,
trade name, service mark, mask work, trade secret or other intellectual property or proprietary right.  To the knowledge
of Target, no Person is infringing upon or otherwise violating the owned Proprietary Rights.  To the knowledge of Target,
no employee or consultant of Target is in violation of any requirement of law applicable to such employee or consultant or any
term of any employment or consulting agreement, any patent or invention disclosure agreement, any non-competition or non-disclosure
agreement, or any other contract or agreement relating to the relationship of such employee or consultant with Target, in the case
of any of the foregoing, solely to the extent having a Material Adverse Effect on Target’s ownership of or right to use any
Proprietary Rights as necessary to conduct Target’s business as currently conducted.


 


 


 


 


 



     

     

    

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(d) Since
January 1, 2008, Target has taken reasonable security measures to protect the confidentiality of all designs, plans, trade secrets,
source codes, inventions, processes, procedures, research records, know-how and formulae included within the Proprietary Rights,
the value of which is contingent upon maintenance of confidentiality thereof, including, without limitation, requiring all Target
employees and consultants and all other persons with access to such  designs, plans, trade secrets, source codes, inventions,
processes, procedures, research records, know-how and formulae to be bound by confidentiality or non-disclosure agreements.


 


(e) Except
for computer software under development, the computer software owned by Target which is material to the conduct of Target’s
business as it is currently conducted (subject to such exception, the “Software”) performs in all material respects
in accordance with its written documented specifications (if any), is in machine-readable form, contains all current revisions
of the Software, and includes all object code and material source code forms of the Software and all currently existing materials,
processes, disks, tapes and know-how related to the Software.


 


(f) Except
as set forth in Section 4.21(f) of the Target Disclosure Schedule, Target has no further obligation to compensate any Person for
the development, use, sale or exploitation of the Software nor has Target granted to any other Person or entity any license, option
or other rights to develop, use, sell or exploit in any manner the Software, whether requiring the payment of royalties or not.


 


4.22 Agreements,
Contracts and Commitments.


 


(a) Section
4.22(a) of the Target Disclosure Schedule lists each Transaction Agreement and each Contract to which Target and each of its Subsidiaries
is a party or bound and that fall within any of the following categories (each, a “Material Target Contract”): (i)
Contracts not entered into in the ordinary course of business, (ii) joint venture, partnership and similar agreements, (iii) Contracts
which are service contracts or equipment leases involving payments by Target of more than $10,000 per year, (iv) Contracts containing
covenants purporting to limit the freedom of Target (or, after the Closing, Purchaser or its Subsidiaries) to compete in any line
of business in any geographic area or to hire any individual or group of individuals, or requiring Target (or, after the Closing,
Purchaser or its Subsidiaries) to deal exclusively with, grant exclusive rights to, or refrain from dealing with products that
are competitive with any other party’s products, (v) Contracts which contain minimum purchase conditions or requirements
or other terms that restrict or limit the purchasing relationships of Target or its Affiliates, or any customer, licensee or lessee
thereof, (vi) Contracts relating to any outstanding commitment for capital expenditures of more than $10,000 per year, (vii)
Contracts relating to the lease or sublease of or sale or purchase of real or personal property involving any annual expense or
price in excess of $10,000 and not cancelable by Target (without premium or penalty) within 90 days, (viii) Contracts with any
labor organization, (ix) indentures, mortgages, promissory notes, loan agreements, guarantees, letters of credit or other
agreements or instruments of Target or commitments for the borrowing or the lending of amounts in excess of $10,000 by Target or
providing for the creation of any Lien upon any of the assets of Target, (x) Contracts providing for “earn-outs” or
other contingent payments, (xi) Contracts with or for the benefit of any holder of capital stock or options to purchase capital
stock of Target, Affiliate of Target or, to the knowledge of Target, any such holder or immediate family member thereof, (xii)
Contracts with respect to employment or consulting services or providing for severance benefits, (xiii) Contracts involving any
current or former officer, director or stockholder of the Target or an Affiliate of Target; and (xiv) all other Contracts not called
for above that are material to the business of Target as it is currently being conducted.


 


 


 


 


 



     

     

    

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(b) Each
of the Material Target Contracts is valid and in full force and effect.  Neither Target nor any of its Subsidiaries,
nor to Target’s knowledge any other party to a Material Target Contract, has violated any material provision of, or committed
or failed to perform any act which, with or without notice, lapse of time, or both, would constitute a material default under the
provisions of any such Material Target Contract, and neither Target nor any of its Subsidiaries has received written notice that
it has breached, violated or defaulted under, any of the material terms or conditions of any of the Material Target Contracts.
Neither Target nor any Subsidiary of Target is a party to, or otherwise a guarantor of or liable with respect to, any interest
rate, currency or other swap or derivative transaction, other than any such transactions in the ordinary course of business. Target
has made correct and complete copies of the Material Target Contracts available to Purchaser.


 


4.23 Interested
Party Transactions.  Except for the Target Employee Plans, Section 4.23 of the Target Disclosure Schedule sets forth
a correct and complete list of the contracts, arrangements that are in existence as of the date of this Agreement or transactions
under which Target or any of its Subsidiaries has any existing or future liabilities (an “Affiliate Transaction”),
between Target or any of its Subsidiaries, on the one hand, and, on the other hand, any (a) present executive officer or director
of Target, its Subsidiaries or any person that has served as such an executive officer or director within the past two years or
any of such executive officer’s or director’s immediate family members, (b) record or beneficial owner of more
than 5% of the shares of Target Common Stock as of the date hereof, or (c) to the knowledge of the Target, any Affiliate of
any such executive officer, director or owner (other than Target or any of its Subsidiaries). Target has made available to Purchaser
true and complete copies of any such contract or arrangement.


 


4.24 Brokers.  Target
and its Subsidiaries have not incurred, nor will they incur, directly or indirectly, any liability for brokerage or finder's fees
or agent’s commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby, other
than fees and expenses payable to Roth Capital Partners, LLC.


 


4.25 Opinions
of Financial Advisors.  On the date of this Agreement the board of directors of Target received from its financial
advisors, Roth Capital Partners, LLC an opinion, dated the date of this Agreement, to the effect that, as of such date,
the consideration to be received by the Target Stockholders pursuant to this Agreement is fair, from a financial point of view,
to the Target Stockholders.


 


4.26 Vote
Required.  The vote of a majority of the votes represented by the outstanding shares of Target Common
Stock entitled to vote on this Agreement and the Merger (the “Target Stockholder Approval”) is the only vote of the
Target Stockholders, Options or other securities of Target necessary to approve this Agreement and the Merger and the transactions
contemplated hereby and thereby.


 


 


 


 


 



     

     

    

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4.27 NCA
and State Takeover Laws.  Prior to the date hereof, the board of directors of Target has taken all action necessary
to exempt under or make the following not subject to any state takeover Law or other state Law that purports to limit or restrict
business combinations or the ability to acquire or vote shares:  (a) the execution of this Agreement, (b) the Merger
and (c) the other transactions contemplated hereby.


 


4.28 No
Other Representations and Warranties.  Except for the representations and warranties contained in this Agreement,
neither Target nor its Subsidiaries nor any other Person or its Subsidiaries makes any representation or warranty, express or implied,
on behalf of Target and its Subsidiaries with respect to the transactions contemplated by this Agreement.


 


ARTICLE 5


COVENANTS OF THE PARTIES


 


The parties hereto agree
as follows with respect to the period from and after the execution of this Agreement:


 


5.1 Conduct
of Business of Target.  During the period from the date of this Agreement to the Effective Time, except as provided
in Section 5.1 of the Target Disclosure Schedule or as otherwise expressly contemplated or permitted in this Agreement or the Transaction
Agreements and except to the extent Purchaser shall otherwise give its prior written consent, each of Target and its Subsidiaries
shall: (i) conduct its business in the ordinary course and consistent with the budget attached hereto as Exhibit B (the “Budget”)
and in compliance in all material respects with applicable Laws; (ii) pay or perform its material obligations when due; and (iii)
use its commercially reasonable efforts consistent with past practices to: (A) preserve intact its present business organization,
(B) keep available the services of its present officers and employees, (C) preserve in all material respects its relationships
with customers, suppliers, distributors, joint venture partners, and others with which it has significant business dealings, and
(D) preserve in all material respects any Target Intellectual Property. Without limiting the generality of the foregoing, except
as provided in Section 5.1 of the Target Disclosure Schedule or as expressly contemplated or permitted by this Agreement or the
Transaction Agreements, without the prior written consent of Purchaser, during the period from the date of this Agreement to the
Effective Time, Target shall not, and shall not permit any of its Subsidiaries to, do any of the following:


 


(a) amend
the Target Charter Documents;


 


(b) split,
combine, subdivide or reclassify any shares of its capital stock or other equity interests or declare, set aside or pay any dividend
or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except for
dividends paid to Target or any of its Subsidiaries by any Subsidiary that is, directly or indirectly, wholly-owned by Target;


 


 


 


 


 



     

     

    

31






 


 


 


(c) adopt
a plan or agreement of complete or partial liquidation, dissolution, winding up, merger, consolidation, amalgamation, restructuring,
recapitalization or other material reorganization;


 


(d) issue,
deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock of any class or other equity interests
or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or
other equity interests, other than the issuances of shares of Target Common Stock upon the exercise of Options outstanding on the
date hereof or issued after the date hereof in compliance with the terms of this Agreement in accordance with their present terms;


 


(e) except
as required to ensure that any Target Employee Plan in effect on the date of this Agreement is not then out of compliance with
applicable Law or as specifically required or permitted pursuant to this Agreement or as provided in the Target Disclosure Schedule,
(A) adopt, enter into, terminate or amend any Target Employee Plan, (B) increase in any manner the compensation or benefits of,
or pay any bonus to, any employee of Target or its Subsidiaries, except as required by a Target Employee Plan or an employment
agreement with an employee of Target or its Subsidiaries, (C) pay or provide to any employee of Target or its Subsidiaries any
benefit not provided for under a Target Employee Plan as in effect on the date of this Agreement or as permitted by clause (B)
above, (D) grant any awards under any Target Employee Plan (including the grant of stock or other equity options, stock or other
equity appreciation rights, performance units, restricted stock or other equity, stock or other equity purchase rights or other
stock or other equity-based or stock-related awards) or remove existing restrictions in any Target Employee Plan or awards made
thereunder, (E) take any action to fund or in any other way secure the payment of compensation or benefits under any Target Employee
Plan, except as required to comply with any Target Employee Plan as in effect on the date of this Agreement or (F) take any action
to accelerate the vesting or payment of any compensation or benefits under any Target Employee Plan;


 


(f) except
pursuant to agreements that are in effect as of the date hereof and previously disclosed to Purchaser, directly or indirectly purchase,
redeem or otherwise acquire any shares of Target Common Stock or any shares of capital stock or other interests in the Subsidiaries
of Target or any other securities thereof or any rights, warrant or options to acquire any such shares or other securities (which
restriction shall not restrict any cashless exercise or similar transaction pursuant to any Options or other awards issued under
an Target Employee Plan outstanding as of the date of this Agreement);


 


(g) acquire
(by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any business;


 


(h) other
than pursuant to Contracts in effect as of the date hereof, sell, lease, license (as licensor or licensee), assign, encumber or
otherwise transfer in one transaction or any series of related transactions, assets, property or rights;


 


(i) incur,
assume or guarantee any Indebtedness for borrowed money or issue or sell any debt securities or warrants or other rights to acquire
debt securities or enter into any keep-well or other arrangements to maintain the financial condition of any other Person;


 


 


 


 


 



     

     

    

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(j) make
any loan, advance or capital contribution to or investment in any Person, other than loans, advances or capital contributions to
or investments (i) in its Subsidiaries or pursuant to Contracts in effect at the date hereof or (ii) in accordance with the Budget;


 


(k) make
or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return,
enter into any closing agreement, settle any Tax claim or assessment relating to Target or any of its Subsidiaries, surrender any
right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment
relating to Target or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the
payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would
have the effect of increasing the Tax liability of Target or any of its Subsidiaries for any period ending after the Closing Date
or decreasing any Tax attribute of Target or any of its Subsidiaries existing on the Closing Date;


 


(l) take
any action that would, or would reasonably be expected to, prevent or materially impair or delay the ability of Target to consummate
the transactions contemplated by this Agreement;


 


(m) enter
into, amend, cancel, terminate, or grant any waiver in respect of any Material Target Contract;


 


(n) file
any registration statement under the Securities Act or an amendment to any Securities Act registration statement;


 


(o) make
any capital expenditures in any fiscal quarter exceeding the Budget for such fiscal quarter;


 


(p) enter
into any hedging agreements whether or not in the ordinary course of business consistent with past practice;


 


(q) waive,
release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or
compromises not exceeding the amount reserved against in the Target Financial Statements, or otherwise pay, discharge or satisfy
any claim, liability or obligation;


 


(r) enter
into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses
of Target or Purchaser following the Effective Time;


 


(s) enter
into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke
or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material
refund of Taxes, execute or consent to any waiver extending the statutory period of limitations with respect to the collection
or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling;


 


 


 


 


 



     

     

    

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(t) enter
into any new, or amend or otherwise alter any Affiliate Transaction or transaction that would be an Affiliate Transaction if such
transaction occurred prior to the date hereof; or


 


(u) agree
or commit to do any of the foregoing.


 


5.2 Conduct
of Business of Purchaser.  During the period from the date of this Agreement to the Effective Time, except as otherwise
expressly contemplated or permitted in this Agreement or the Transaction Agreements and except to the extent Target shall otherwise
give its prior written consent, not to be unreasonably withheld or delayed, Purchaser shall not, and shall not permit any of its
Subsidiaries to, do any of the following:


 


(a) amend
any Purchaser Charter Document or other applicable governing instruments in a manner that would (i) reasonably be expected
to, prevent or materially impair or delay the ability of Purchaser to consummate the transactions contemplated by this Agreement,
or (ii) disproportionately adversely affect a holder of Target Common Stock relative to a holder of Purchaser Common Stock;


 


(b) split,
combine, subdivide or reclassify any shares of its capital stock or other equity interests or declare, set aside or pay any dividend
or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem,
repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities, except for (i) dividends
paid to Purchaser or any of its Subsidiaries by any Subsidiary of Purchaser, (ii) purchases of shares of Purchaser Common Stock
pursuant to stock repurchase plans set forth on Section 5.2(b) of the Purchaser Disclosure Schedule, the Purchaser Option Plans
or Contracts in effect as of the date of this Agreement and in accordance with the terms thereof;


 


(c) issue,
deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock of any class or other equity interests
or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or
other equity interests, other than (i) the issuances of shares of Purchaser Common Stock upon the exercise of Purchaser Options
and Purchaser Warrants outstanding on the date hereof or issued after the date hereof in compliance with the terms of this Agreement
in accordance with their present terms, (ii) issuances of equity awards in the ordinary course of business under the Purchaser
Option Plans, and (iii) issuance of capital stock of any wholly-owned Subsidiary of Purchaser to Purchaser or another wholly-owned
Subsidiary thereof;


 


(d) adopt
a plan or agreement of complete or partial liquidation or dissolution;


 


(e) acquire
(by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material business, if such
transaction would reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this
Agreement;


 


(f) materially
change (i) its methods of accounting or accounting practices in any material respect, except as required by concurrent changes
in GAAP (or the permitted early adoption of such changes) or by Law and concurred in by Purchaser’s external auditors or
(ii) its fiscal year;


 


 


 


 


 



     

     

    

34






 


 


 


(g) take
any action that would, or would reasonably be expected to, prevent or materially impair or delay the ability of Purchaser to consummate
the transactions contemplated by this Agreement, including the Merger and the transactions contemplated by this Agreement; or


 


(h) agree
or commit to do any of the foregoing.


 


5.3 Stockholder
Approval.


 


(a) Target
agrees to take, in accordance with applicable Law and the Target Charter Documents, all action necessary to convene as soon as
reasonably practicable a special meeting of the Target Stockholders to consider and vote upon the approval and adoption of this
Agreement, including the Merger, and any other matters required to be approved by the Target Stockholders for consummation of the
Merger (including any adjournment or postponement, the “Target Stockholder Meeting”). Except with the prior approval
of Purchaser, no other matters shall be submitted for the approval of Target Stockholders at the Target Stockholder Meeting, other
than matters customarily brought before the Purchaser stockholders at an annual meeting.  The board of directors of Target
shall at all times prior to and during such meeting recommend such approval and adoption and shall take all reasonable lawful action
to solicit such approval and adoption by the Target Stockholders, provided that nothing in this Agreement shall prevent the board
of directors of Target from withholding, withdrawing, amending or modifying its recommendation if the board of directors of Target
determines, after consultation with its outside counsel, that failing to take such action would be reasonably likely to constitute
a breach of its fiduciary duties to the Target Stockholders under applicable Law; provided, further, that Section 5.12 shall govern
the withholding, withdrawing, amending or modifying of such recommendation in the circumstances described therein.


 


(b) Purchaser
agrees to take, in accordance with applicable Law and the Purchaser Charter Documents, all action necessary to convene as soon
as reasonably practicable a special meeting of its stockholders to consider and vote upon the issuance of the Purchaser Common
Stock contemplated by this Agreement and any other matters required to be approved by Purchaser’s stockholders for consummation
of the Merger (including any adjournment or postponement, the “Purchaser Stockholder Meeting”). Except with the prior
approval of Target, no other matters shall be submitted for the approval of Purchaser stockholders at the Purchaser Stockholder
Meeting, other than matters customarily brought before the Purchaser stockholders at an annual meeting. The board of directors
of Purchaser shall at all times prior to and during such meeting recommend such approval and shall take all reasonable lawful action
to solicit such approval by its stockholders, provided that nothing in this Agreement shall prevent the board of directors of Purchaser
from withholding, withdrawing, amending or modifying its recommendation if the board of directors of Purchaser determines, after
consultation with its outside counsel, that such action is legally required in order for the directors to comply with their fiduciary
duties to the Purchaser stockholders under applicable Law.


 


5.4 Registration
Statement.


 


 


 


 


 



     

     

    

35






 


 


 


(a) Purchaser
agrees to prepare an S-4 or other applicable registration statement to be filed by Purchaser with the SEC in connection with the
issuance of Purchaser Common Stock in the Merger (including the proxy statement and other proxy solicitation materials of Purchaser
constituting a part thereof and all related documents (the “Purchaser Proxy Statement”)) (the “S-4”). The
S-4 shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act
and the rules and regulations thereunder.  Target shall prepare and furnish such information relating to it and its directors,
officers and stockholders as may be reasonably required in connection with the above referenced documents based on its knowledge
of and access to the information required for said documents, and Target, and its legal, financial and accounting advisors, shall
have the right to review and recommend comments on the S-4 prior to its filing.  Purchaser shall consider in good faith
any such recommended comments.  Without limiting the generality of the foregoing, as promptly as reasonably practicable,
but in any event no later than March 31, 2012, Target shall provide to Purchaser Target’s audited financial statements consisting
of a balance sheet of Target as of December 31, 2011 and the related statements of income and retained earnings, stockholders’
equity and cash flows for the year then ended.  Target agrees to cooperate with Purchaser and Merger Sub and Purchaser’s
and Merger Sub’s counsel and accountants in requesting and obtaining appropriate opinions, consents and letters from its
financial advisor and independent auditor in connection with the S-4. Provided that Target has cooperated as described above, Purchaser
agrees to file, or cause to be filed, the S-4 with the SEC as promptly as reasonably practicable.  Each of Target, Purchaser
and Merger Sub agrees to use its reasonable best efforts to cause the S-4 to be declared effective under the Securities Act as
promptly as reasonably practicable after the filing thereof.  Purchaser also agrees to use its reasonable best efforts
to obtain all necessary state securities Law or “Blue Sky” permits and approvals required to carry out the transactions
contemplated by this Agreement.  After the S-4 is declared effective under the Securities Act, Purchaser shall promptly
mail the Purchaser Proxy Statement to its stockholders and provide the prospectus contained therein to the Target Stockholders.


 


(b) Purchaser
shall, as promptly as practicable after receipt thereof, provide Target with copies of any written comments, and advise Target
of any oral comments, received from the SEC with respect to the S-4.  Purchaser shall provide Target with a reasonable
opportunity to review and comment (and Purchaser shall consider in good faith any such recommended comments) on any amendment or
supplement to the S-4 and any communications prior to filing such with the SEC, and will promptly provide Target with a copy of
all such filings and communications made with the SEC.


 


(c) Each
of Target and Purchaser agrees that none of the information supplied or to be supplied by it for inclusion or incorporation by
reference in (i) the S-4 shall, at the time the S-4 and each amendment or supplement thereto, if any, becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (ii) the Purchaser Proxy Statement and any amendment or supplement
thereto shall, at the date(s) of mailing to stockholders and the Purchaser Stockholder Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not
misleading.  Each of Target and Purchaser further agrees that if such party shall become aware prior to the Effective
Time of any information furnished by such party that would cause any of the statements in the S-4 or the Purchaser Proxy Statement
to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements
therein not false or misleading, to promptly inform the other Parties thereof and to take the necessary steps to correct the S-4
or the Purchaser Proxy Statement.


 


 


 


 


 



     

     

    

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(d) Purchaser
agrees to advise Target, promptly after Purchaser receives notice thereof, of the time when the S-4 has become effective or any
supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of Purchaser Common
Stock for offering or sale in any jurisdiction, of the initiation or, to the extent Purchaser is aware thereof, threat of any proceeding
for any such purpose, or of any request by the SEC for the amendment or supplement of the S-4 or for additional information.


 


5.5 Reasonable
Best Efforts.  Each of the parties shall use its reasonable best efforts to take all action and to do all things
necessary, proper or advisable to consummate the Merger and the transactions contemplated by this Agreement (including, without
limitation, using its reasonable best efforts to cause the conditions set forth in Article 6 for which they are responsible to
be satisfied as soon as reasonably practicable and to prepare, execute and deliver such further instruments and take or cause to
be taken such other and further action as any other party hereto shall reasonably request).


 


5.6 Neutron
Funding Agreement.  Purchaser shall enter into the Neutron Funding Agreement and complete the transactions contemplated
thereby, subject to the terms and conditions thereof.


 


5.7 HSR
Act.  As soon as practicable, and in any event no later than fifteen Business Days after the either Purchaser or
Target determines that the transaction contemplated hereby requires filings under the HSR Act, each of the parties hereto will
file any Notification and Report Forms and related material required to be filed by it with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the HSR Act (if any) with respect to the Merger, will use its
reasonable efforts to obtain an early termination of the applicable waiting period, and shall promptly make any further filings
pursuant thereto that may be necessary, proper or advisable.  Purchaser and Target agree to cooperate with respect to,
and shall cause each of their respective Subsidiaries to cooperate with respect to, and agree to use all reasonable efforts to
contest and resist, any Action, including legislative, administrative or judicial Action, and to have vacated, lifted, reversed
or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) (an “Order”)
of any Governmental Entity that is in effect and that restricts, prevents or prohibits the consummation of the Merger or any other
transactions contemplated by this Agreement, including, without limitation, by pursuing all available avenues of administrative
and judicial appeal and all available legislative action.  Upon the terms and subject to the conditions set forth in
this Agreement, in connection with the HSR Act, each of Target and Purchaser agrees to take, or cause to be taken, all actions,
and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable
to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated
by this Agreement, including the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental
Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any)
and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding
by, any Governmental Entity; provided, however, that a party shall not be obligated to take any action pursuant to the foregoing
if the taking of such action or the obtaining of any waiver, consent, approval or exemption is reasonably likely (x) to impact
in a materially adverse manner the economic or business benefits of the transactions contemplated by this Agreement so as to render
inadvisable the consummation of the Merger or (y) to result in an Order (i) prohibiting or limiting the ownership or
operation by Purchaser of any material portion of the business or assets of Target or compelling Purchaser to dispose of or hold
separate any of the business or assets of Purchaser or any material portion of the business or assets of Target as a result of
the Merger or any of the other transactions contemplated by this Agreement, (ii) imposing limitations on the ability of Purchaser
to acquire or hold, or exercise full rights of ownership of, any shares of capital stock of Target, including, without limitation,
the right to vote such capital stock on all matters properly presented to the Target Stockholders, or (iii) prohibiting Purchaser
from effectively controlling in any material respect the business or operations of Target.  The parties acknowledge that,
based on the price of Purchaser’s Common Stock as of the date hereof, no filings under the HSR Act are required with respect
to the transactions contemplated hereby.


 


 


 


 


 



     

     

    

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5.8 Other
Governmental Matters.  Each of the parties shall use its reasonable efforts to take any additional action that may
be necessary, proper or advisable in connection with any other notices to, filings with, and authorizations, consents and approvals
of any Governmental Entity that it may be required to give, make or obtain.


 


5.9 Intentionally
Omitted.


 


5.10 Public
Announcements.  No party shall issue any press release or public announcement relating to the subject matter of this
Agreement without the prior written approval of the other parties, subject to RCF’s right to consent pursuant to the RCF
Investment Agreement; provided, however, that any party may make any public disclosure it believes in good faith
is required by applicable Law or stock market rule (in which case the disclosing party shall use reasonable efforts to advise the
other parties and provide them with a copy of the proposed disclosure prior to making the disclosure).


 


5.11 Notification
of Certain Matters.


 


(a) Purchaser
shall give prompt notice to Target of (i) the occurrence or non-occurrence of any event the occurrence or non-occurrence of which
would cause any Purchaser or Merger Sub representation or warranty contained in this Agreement to be untrue or inaccurate in any
material respect at or prior to the Effective Time and (ii) any material failure of Purchaser to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder.


 


(b) Target
shall give prompt notice to Purchaser of (i) the occurrence or non-occurrence of any event the occurrence or non-occurrence of
which would cause any Target representation or warranty contained in this Agreement to be untrue or inaccurate in any material
respect at or prior to the Effective Time and (ii) any material failure of Target to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder.


 


 


 


 


 



     

     

    

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5.12 No
Solicitation.


 


(a) Target
will immediately cease and cause to be terminated any existing solicitation, encouragement, activity, discussion or negotiation
with any Person with respect to any Acquisition Proposal, whether or not initiated by Target, and, in connection therewith, Target
will discontinue access to any data rooms (virtual or otherwise) and will request (and exercise all rights it has to require) the
return or destruction of all information regarding Target and its Subsidiaries previously provided to any such Person or any other
Person and will request (and exercise all rights it has to require) the destruction of all materials including or incorporating
any confidential information regarding Target and its Subsidiaries.  Target shall not terminate, amend, modify or waive
any provision of any confidentiality or standstill or similar agreement to which Target or any of its Subsidiaries is a party with
any other Person.


 


(b) Target
shall not, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any
financial or other advisors) or agent of Target or any Subsidiary of Target: (i) solicit, assist, initiate, encourage or otherwise
facilitate (including by way of furnishing non-public information or permitting any visit to any facilities or properties of Target
or any Subsidiary of Target, including any material joint ventures or Mineral Properties) any inquiries, proposals or offers regarding
any Acquisition Proposal; (ii) engage in any discussions or negotiations regarding, or provide any confidential information with
respect to, any Acquisition Proposal, provided that for greater certainty, Target may advise any Person making an unsolicited Acquisition
Proposal that such Acquisition Proposal does not constitute a Superior Proposal when the Target board of directors has so determined;
(iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in any manner adverse to Purchaser, the
approval or recommendation of the Target board of directors or any committee thereof of this Agreement or the Merger; (iv) approve
or recommend, or remain neutral with respect to, or propose publicly to approve or recommend, or remain neutral with respect to,
any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition
Proposal until 15 calendar days following the formal commencement of such Acquisition Proposal shall not be considered to be in
violation of this Section 5.12(b); or (v) accept or enter into, or publicly propose to accept or enter into, any letter of intent,
agreement in principle, agreement, arrangement or undertaking related to any Acquisition Proposal.


 


(c) Notwithstanding
Section 5.12(b) and any other provision of this Agreement, the Target board of directors shall be permitted, prior to obtaining
the Target Stockholder Approval, to engage in discussions or negotiations with, or provide information pursuant to Section 5.12(b)
to, any Person in response to an Acquisition Proposal by any such Person, provided that (A) it has received an unsolicited bona
fide written Acquisition Proposal from such Person and the Target board of directors has determined in good faith based on information
then available and after consultation with its financial advisors that such Acquisition Proposal constitutes a Superior Proposal
(except for the element requiring that the Acquisition Proposal not be subject to any due diligence and/or access condition); and
(B) prior to providing any confidential information or data to such Person in connection with such Acquisition Proposal, (x) the
Target board of directors receives from such Person an executed confidentiality agreement covering a period of not less than one
year from the date of such confidentiality agreement and Target sends a copy of any such confidentiality agreement to Purchaser
promptly upon its execution and promptly provides Purchaser a list of, or in the case of information that was not previously made
available to Purchaser, copies of, any information provided to such Person, and (y) Target has complied in all material respects
with Section 5.12(e). Target shall not engage in discussions or negotiate, accept, approve or recommend an Acquisition Proposal
or provide information to any Person proposing an Acquisition Proposal, in each case after the date of the Target Stockholder Approval.


 


 


 


 


 



     

     

    

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(d) From
and after the date of this Agreement, Target shall promptly (and in any event within 36 hours) notify Purchaser, orally and in
writing, of any proposal, inquiry, offer (or any amendment thereto) or any request for discussions or negotiations in each case
or request relating to or constituting an Acquisition Proposal, any request for representation on the Target board of directors,
or any request for non-public information relating to Target or any Subsidiary of Target or any material joint venture or material
mineral property relating to or constituting an Acquisition Proposal of which Target’s directors, officers, representatives
or agents are or became aware. Such notice shall include a description of the terms and conditions of, and the identity of the
Person making, any proposal, inquiry, offer (including any amendment thereto) or request, and shall include copies of any such
proposal or offer or any amendment to such proposal or offer. Target shall also provide such other details of the proposal or offer,
or any amendment thereto, as Purchaser may reasonably request. Target shall keep Purchaser promptly and fully informed of the status,
including any change to the material terms, of any such proposal or offer, or any amendment thereto, and will respond promptly
to all inquiries by Purchaser with respect thereto.


 


(e) Target
shall ensure that its officers, directors, representatives, agents and legal and financial advisors, and its Subsidiaries and their
officers, directors, representatives, agents and legal and financial advisors, are aware of the provisions of Sections 5.12(a)-(d)
hereof and agree to be bound thereby, and it shall be responsible for any breach of such provisions by any of them or by any employee
of Target or any Subsidiary of Target.


 


(f) If
Target has complied with Sections 5.12(a)-(e), Target may accept, approve, recommend or enter into any agreement in respect of,
an Acquisition Proposal prior to the Target Stockholder Approval only if:


 


(i) the
Acquisition Proposal constitutes a Superior Proposal;


 


(ii) Target
has provided Purchaser with notice in writing that there is a Superior Proposal in accordance with Section 5.12(c)-(d);


 


(iii) at
least five Business Days shall have elapsed from the date that Purchaser has received a copy of the written proposal in respect
of the purported Superior Proposal (or any amendment or revision thereof);


 


(iv) if
Purchaser has proposed to amend the terms of the Merger and this Agreement in accordance with Section 5.12(g), the Target board
of directors (after receiving advice from its financial advisors and outside legal counsel) shall have determined in good faith
that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments;


 


 


 


 


 



     

     

    

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(v) Target’s
board of directors after consultation with outside legal counsel, determines in good faith that the failure to take such action
would be inconsistent with its fiduciary duties under applicable Laws;


 


(vi) prior
to entering into an agreement relating to such Superior Proposal (other than the aforesaid confidentiality agreement) Target shall
have terminated this Agreement pursuant to Section 7.1(j); and


 


(vii) in
the event that Target provides Purchaser with a notice referred to in Section 5.12(f)(ii) on a date that is less than five Business
Days prior to the Target Stockholder Meeting, Target shall adjourn the Target Stockholder Meeting (without notice on the Merger
or any related matters) to a date that is not less than five Business Days and not more than 10 Business Days after the date of
the Purchaser notice referred to in Section 5.12(f)(ii).


 


(g) Target
acknowledges and agrees that, during the five Business Day period referred to in Section 5.12(f)(iii), Purchaser shall have the
opportunity, but not the obligation, to propose to amend the terms of the Merger and this Agreement. The Target board of directors
will review any proposal by Purchaser to amend the terms of the Merger and this Agreement in order to determine, in good faith
in the exercise of its fiduciary duties, whether such proposal would result in the Acquisition Proposal not being a Superior Proposal
compared to the proposed amendments to the terms of the Merger and this Agreement.


 


(h) Target
acknowledges and agrees that each successive modification of the material terms of any Acquisition Proposal shall constitute a
new Acquisition Proposal for purposes of this Section 5.12 and the requirement under Section 5.12(f)(iii) to initiate an additional
five Business Day period.


 


5.13 Confidentiality;
Access.


 


(a) The
parties acknowledge that Target and Purchaser have previously executed a confidentiality agreement, dated as of August 11, 2011
(the “Confidentiality Agreement”), which Confidentiality Agreement will continue in full force and effect in accordance
with its terms.


 


(b) Subject
to applicable Laws relating to the exchange of information prior to the Effective Time, from the date hereof until the Closing
upon reasonable written notice delivered to Target by Purchaser, Target shall (a) afford Purchaser and its representatives reasonable
access to and the right to inspect all of the real property, properties, assets, premises, books and records, Contracts and other
documents and data related to Target during normal business hours; (b) furnish Purchaser and its representatives with such financial,
operating and other data and information related to Target as Purchaser or any of its representatives may reasonably request; and
(c) instruct the representatives of Target and to reasonably cooperate with Purchaser in its investigation of Target.


 


5.14 Listing
Application.  Purchaser shall cause the shares of Purchaser Common Stock to be issued in the Merger and the transactions
contemplated hereby to be authorized for inclusion on NASDAQ prior to the Effective Time.


 


 


 


 


 



     

     

    

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5.15 Director
and Officer Insurance.


 


(a) At
or prior to the Effective Time, Purchaser shall purchase an extended reporting period of three (3) years under the directors’
and officers’ liability insurance policy maintained by Target as of the date hereof.


 


(b) From
the date hereof until the Effective Time, Purchaser shall use commercially reasonable efforts to purchase an additional $10,000,000
to $15,000,000 of directors’ and officers’ liability insurance coverage with an extended reporting period of three
(3) years in form and substance satisfactory to Target; provided, however, that the cost of such additional insurance shall not
exceed $140,000.


 


(c) In
the event Purchaser fails to have the insurance coverage described in Section 5.15(b) in place by the Effective Time, Purchaser
shall from and after the Effective Time indemnify the individuals who at or prior to the Effective Time were directors or officers
of the Target with respect to all acts or omissions by them in their capacities as such at any time prior to the Effective Time,
to the fullest extent permitted (A) by the Purchaser Charter Documents and (B) under applicable Law, whichever is more favorable
to such directors and officers; provided, however, that such indemnification shall not exceed $5,000,000 in the aggregate (not
including any payments made under the Target’s directors’ and officers’ liability insurance policy). In the event
the Purchaser obtains the insurance coverage described in Section 5.15(b), Purchaser shall not be required to indemnify Target’s
officers and directors other than to provide payment of any applicable deductible under the insurance policies obtained or extended
pursuant to Sections 5.15(a) and (b).


 


5.16 FIRPTA


 


(a) Prior
to Closing, Target shall use its best efforts to collect from (a) each Target Stockholder that is not a Foreign Target Stockholder
a certificate of non-foreign status dated as of the Closing Date in the form and substance satisfactory to Purchaser stating that
such Target Stockholder is not a “foreign person” as defined in Section 1445(f)(3) of the Code (a “Certificate
of Non-Foreign Status”) and (b) each Foreign Target Stockholder either (i) an affidavit dated as of the Closing Date, sworn
under penalty of perjury containing information satisfactory to Purchaser that such Foreign Target Stockholder has submitted an
application to the IRS for a FIRPTA Exemption Certificate on a date prior to Closing (a “FIRPTA Affidavit”) or (ii)
a FIRPTA Exemption Certificate issued to such Foreign Target Stockholder.


 


(b) Purchaser
shall issue and distribute FIRPTA Withheld Shares to a Foreign Target Stockholder who has provided at or prior to Closing an affidavit
that such Foreign Target Stockholder has applied to the IRS for a FIRPTA Exemption Certificate in the amount due to a Foreign Target
Stockholder within twenty (20) days of Purchaser’s receipt of the notice in form and substance satisfactory to Purchaser
from such Foreign Target Stockholder that the stockholder has received a FIRPTA Exemption Certificate with respect to such Foreign
Target Stockholder.  With respect to a Foreign Target Stockholder who has provided a FIRPTA Affidavit at or prior to
Closing, Purchaser shall pay to the IRS any amounts required to be withheld from such Target Stockholder pursuant to Section 1445
of the Code upon a Foreign Target Stockholder’s receipt of Purchaser Common Stock in the Merger after the application of
such withholding exemptions and reductions provided under any applicable FIRPTA Exemption Certificate within five (5) days of (i)
Purchaser’s receipt of a FIRPTA Exemption Certificate issued to a Foreign Target Stockholder providing for reduced withholding
pursuant to Section 1445 of the Code or (ii) Purchaser’s receipt of notice that a Foreign Target Stockholder has received
from the IRS a final denial of such stockholder’s application for a FIRPTA Exemption Certificate.  Purchaser shall
provide evidence of such payment to the relevant Foreign Target Stockholder within ten (10) days after Purchaser’s payment
of any amounts required to be withheld under Section 1445 of the Code to the IRS.


 


 


 


 


 



     

     

    

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(c) A
Foreign Target Stockholder shall provide notice to Purchaser of the IRS’s final denial of such stockholder’s application
for a FIRPTA Exemption Certificate within five (5) days of receiving written notice of such denial.


 


(d) A
Foreign Target Stockholder shall provide Purchaser with a FIRPTA Exemption Certificate issued to such stockholder within five (5)
days of receiving such certificate from the IRS.


 


(e) Purchaser
shall timely pay to the IRS amount amounts required to be withheld pursuant to Section 1445 of the Code with respect to a Target
Stockholder that does not provide Purchaser  at or prior to Closing with (i) a Certificate of Non-Foreign Status, (ii)
a FIRPTA Exemption Certificate, or (iii) a FIRPTA Affidavit.


 


5.17 Englewood
and Albuquerque Leases.  Target shall use its best efforts to cause the Englewood Lease and the Albuquerque Lease
to be terminated or modified with respect to office leasehold obligations prior to the Closing Date on terms and conditions satisfactory
to Purchaser and its counsel.


 


ARTICLE 6


CONDITIONS


 


6.1 Mutual
Conditions.  The obligations of the parties hereto to consummate the Merger shall be subject to fulfillment of the
following conditions:


 


(a) Purchaser
Stockholder Approval.  The Purchaser Stockholder Approval shall have been obtained.


 


(b) Target
Stockholder Approval.  The Target Stockholder Approval shall have been obtained.


 


(c) No
Adverse Proceeding.  No temporary restraining order, preliminary or permanent injunction or other Order which prevents
the consummation of the Merger shall have been issued and remain in effect, and no statute, rule or regulation shall have been
enacted by any Governmental Entity which prevents the consummation of the Merger.


 


(d) HSR
Act.  Any applicable waiting periods applicable to the consummation of the Merger under the HSR Act shall have expired
or been terminated.


 


 


 


 


 



     

     

    

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(e) No
Government Action.  No Action shall be instituted by any Governmental Entity which seeks to prevent consummation
of the Merger or seeking material damages in connection with the transactions contemplated hereby which continues to be outstanding.


 


(f) S-4.  The
S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the S-4 shall have been
issued and no proceedings for that purpose shall have been initiated or threatened by the SEC.


 


(g) NASDAQ
Authorization.  The shares of Purchaser Common Stock to be issued in the Merger and the transactions contemplated
hereby shall have been authorized for inclusion on NASDAQ, subject to official notice of issuance.


 


(h) Transaction
Agreements.  Each Transaction Agreement shall be in full force and effect, and the transactions contemplated thereby
to occur prior to the Closing shall have been consummated on terms and conditions satisfactory to Purchaser, Target and their respective
counsels.


 


6.2 Conditions
to Obligations of Target.  The obligations of Target to consummate the Merger and the transactions contemplated hereby
shall be subject to the fulfillment of the following conditions unless waived by Target:


 


(a) Representations
and Warranties. The representations and warranties of Purchaser and Merger Sub contained in this Agreement shall be true and
correct in all material respects (except that the representations and warranties of Purchaser and Merger Sub contained in this
Agreement that are qualified by materiality “or Material Adverse Effect” shall be true and correct in all respects)
as of the Effective Time with the same effect as if made at and as of the Effective Time (other than such representations that
are made as of a specified date, which shall be true and correct in all material respects as of such date) (or if qualified by
materiality or Material Adverse Effect shall be true and correct in all respects as of such date), except as would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Purchaser or Merger Sub.


 


(b) Performance
of Agreement.  Each of Purchaser and Merger Sub shall have performed in all material respects each obligation and
agreement and shall have complied in all material respects with each covenant to be performed and complied with by it hereunder
at or prior to the Effective Time.


 


(c) Certificates.  Each
of Purchaser and Merger Sub shall have furnished Target with a certificate dated the Closing Date signed on behalf of it by the
Chairman, President or any Vice President to the effect that the conditions set forth in Sections 6.2(a) and (b) have been satisfied.


 


6.3 Conditions
to Obligations of Purchaser and Merger Sub.  The obligations of Purchaser and Merger Sub to consummate the Merger
and the other transactions contemplated hereby shall be subject to the fulfillment of the following conditions unless waived by
each of Purchaser and Merger Sub:


 


 


 


 


 



     

     

    

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(a) Representations
and Warranties.  The representations and warranties of Target contained in this Agreement shall be true and correct
in all material respects (except that the representations and warranties of Target contained in this Agreement that are qualified
by materiality “or Material Adverse Effect” shall be true and correct in all respects) as of the Effective Time with
the same effect as if made at and as of the Effective Time (other than such representations that are made as of a specified date,
which shall be true and correct in all material respects as of such date) (or if qualified by materiality or Material Adverse Effect
shall be true and correct in all respects as of such date), except as would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect with respect to Target.


 


(b) Performance
of Agreement.  Target shall have performed in all material respects each obligation and agreement and shall have
complied in all material respects with each covenant to be performed and complied with by it hereunder and under the Transaction
Agreements at or prior to the Effective Time.


 


(c) Certificate.  Target
shall have furnished Purchaser with a certificate dated the Closing Date signed on its behalf by its Chairman, President or any
Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied, and certifying to the
elements of the total consideration to be paid to Target Stockholders pursuant to Article 2.


 


(d) Consents
and Approvals.  Target shall have received all consents and approvals listed on Section 6.3(d) of the Target Disclosure
Schedule.


 


(e) Exercise
of Options.  All Options shall have been exercised in accordance with Section 2.5 of this Agreement or expired or
cancelled effective as of the Effective Time, and Purchaser shall have received documentation satisfactory to Purchaser and its
counsel confirming that such actions occurred.


 


(f) No
Material Adverse Change.  Since the date of this Agreement, there shall not have been any change in the business,
condition (financial or otherwise), properties, assets, liabilities, obligations (whether absolute, accrued, conditional or otherwise),
operations or results of operations of Target which would constitute a Material Adverse Effect or any event, occurrence or development
which would have a material adverse effect on the ability of Target to consummate the transactions contemplated hereby.


 


(g) Dissenting
Shares.  Dissenting Shares shall not exceed 7% of the number of shares of Target Common Stock entitled to vote on
the Merger.


 


(h) Releases.  Purchaser
shall have received a release duly executed by each person listed on Part I of Exhibit I, which shall release Purchaser, Merger
Sub, Target, the Surviving Corporation and each of their respective Affiliates from certain indemnification obligations under the
Target Charter Documents, applicable Laws or otherwise, in form and substance satisfactory to Purchaser and its counsel.


 


(i) Legal
Opinion.  Purchaser shall have received the legal opinion of Target’s counsel with respect to authority of
Target, in form and substance reasonably satisfactory to Purchaser and its counsel.


 


 


 


 


 



     

     

    

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ARTICLE 7


TERMINATION AND AMENDMENT


 


7.1 Termination
of Agreement.  The parties may terminate this Agreement prior to the Closing (whether before or after receipt of
Target Stockholder Approval or Purchaser Stockholder Approval), as provided below:


 


(a) By
Purchaser or Target by mutual written consent;


 


(b) By
Purchaser by giving written notice to Target in the event Target is in breach of any representation, warranty or covenant contained
in this Agreement, and such breach (i) individually or in combination with any other such breach, would cause the conditions set
forth in clauses (a) or (b) of Section 6.3 not to be satisfied and (ii) is not cured within 20 days following delivery by Purchaser
to Target of written notice of such breach;


 


(c) By
Target by giving written notice to Purchaser in the event Purchaser or Merger Sub is in breach of any representation, warranty
or covenant contained in this Agreement, and such breach (i) individually or in combination with any other such breach, would cause
the conditions set forth in clauses (a) or (b) of Section 6.2 not to be satisfied and (ii) is not cured within 20 days following
delivery by Target to Purchaser of written notice of such breach;


 


(d) By
Purchaser or Target (provided that if Target is the terminating party it shall not be in material breach of any of its obligations
under Section 5.3(a)) by giving written notice to the other parties if the Target Stockholder Approval shall not have been obtained
by reason of the failure to obtain the required vote at the Target Stockholder Meeting;


 


(e) By
Purchaser or Target (provided that if Purchaser is the terminating party it shall not be in material breach of any of its obligations
under Section 5.3(b)) by giving written notice to the other Parties if the Purchaser Stockholder Approval shall not have been obtained
by reason of the failure to obtain the required vote at the Purchaser Stockholder Meeting;


 


(f) By
Purchaser by giving written notice to Target if the Closing shall not have occurred on or before October 31, 2012 (the “Outside
Termination Date”), by reason of the failure of any condition precedent under Section 6.1 or 6.3 (unless the failure results
primarily from a breach by Purchaser or the Merger Sub of any representation, warranty or covenant contained in this Agreement);


 


(g) By
Target by giving written notice to Purchaser if the Closing shall not have occurred on or before the Outside Termination Date by
reason of the failure of any condition precedent under Section 6.1 or 6.2 (unless the failure results primarily from a breach by
Target of any representation, warranty or covenant contained in this Agreement);


 


(h) By
Target, if (i) the board of directors of Purchaser does not recommend in the Purchaser Proxy Statement that its stockholders approve
the Merger and the Purchaser Share Issuance; (ii) after recommending in the Purchaser Proxy Statement that Purchaser stockholders
approve the Merger and the Purchaser Share Issuance, the board of directors shall have withdrawn, modified or qualified such recommendation
adverse to the interest of Target or (iii) Purchaser fails to call, give proper notice of, convene and hold the Purchaser Stockholder
Meeting;


 


 


 


 


 



     

     

    

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(i) By
Purchaser, if (i) the board of directors of Target does not recommend at the Target Stockholder Meeting that its stockholders adopt
this Agreement; (ii) after recommending at the Target Stockholder Meeting that stockholders adopt this Agreement, the board of
directors shall have withdrawn, modified or qualified such recommendation adverse to the interest of Purchaser or (iii) Target
fails to call, give proper notice of, convene and hold the Target Stockholder Meeting; or


 


(j) by
Target, if Target proposes to enter into a definitive agreement with respect to a Superior Proposal in compliance with the provisions
of Section 5.12(f).


 


7.2 Notice
of Termination; Effect of Termination.  Subject to Sections 7.1(b), (c) and (j), any termination of this Agreement
under Section 7.1 above will be effective immediately upon the delivery of written notice of the terminating party to the other
party hereto. In the event of the termination of this Agreement as provided in Section 7.1, this Agreement shall be of no further
force or effect, except that (i) Section 7.2, Section 7.3 and Article 8 (Miscellaneous) shall survive the termination of this Agreement,
and (ii) nothing herein shall relieve any party from liability for any intentional or willful breach of this Agreement. No termination
of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations
shall survive termination of this Agreement in accordance with their terms.


 


7.3 Fees
and Expenses.


 


(a) General.  Except
as set forth in this Section 7.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses whether or not the Merger is consummated.


 


(b) Target
Termination Fees.


 


(i) Target
shall pay to Purchaser and RCF in immediately available funds, within one business day after demand by Purchaser, the Target Termination
Fee if (A) this Agreement is terminated by Purchaser pursuant to Section 7.1(i), and (B) within twelve (12) months following the
termination of this Agreement, a Target Competing Proposal is consummated.


 


(ii) Target
shall pay to Purchaser and RCF in immediately available funds, within one business day after demand by Purchaser, the Target Termination
Fee if (A) this Agreement is terminated by Purchaser pursuant to Section 7.1(j), and (B) within twelve (12) months following the
termination of this Agreement, such Superior Proposal is consummated.


 


(iii) Target
shall pay Purchaser and RCF in immediately available funds, within one business day after demand by Purchaser, the Target Termination
Fee, if: (A) this Agreement is terminated by Purchaser pursuant to Section 7.1(b), (B) at the time of termination a Target Competing
Proposal had been publicly announced or otherwise communicated to the stockholders of Target, and (C) within twelve (12) months
following the termination of this Agreement, such Target Competing Proposal is consummated.


 


 


 


 


 



     

     

    

47






 


 


 


(iv) Target
shall pay Purchaser and RCF in immediately available funds, within one business day after demand by Purchaser, the Target Termination
Fee, if: (A) this Agreement is terminated by Purchaser or Target pursuant to Section 7.1(d), (B) at the time of termination a Target
Competing Proposal had been publicly announced or otherwise communicated to the stockholders of Target, and (C) within twelve (12)
months following the termination of this Agreement, such Target Competing Proposal is consummated.


 


(v) Target
shall pay Purchaser and RCF in immediately available funds, within one business day after demand by Purchaser, the Target Termination
Fee if:  (A) this Agreement is terminated by Purchaser pursuant to Section 7.1(f), (B) at the time of the Target Stockholder
Meeting a Target Competing Proposal was publicly announced or otherwise communicated to the stockholders of Target prior to the
termination of this Agreement, and (C) within twelve (12) months following the termination of this Agreement, such Target Competing
Proposal is consummated.


 


(vi) Target
acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this
Agreement, and that if Target fails to pay in a timely manner the amounts due pursuant to this Section 7.3(b) and, in order to
obtain such payment, Purchaser makes a claim that results in a judgment against Target for the amounts set forth in this Section
7.3(b), Target shall pay to Purchaser and RCF their reasonable costs and expenses (including reasonable attorneys’ fees and
expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate
of Citibank N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b)
shall not be in lieu of damages incurred in the event of intentional or willful breach of this Agreement.  The parties
further acknowledge and agree that the payment by the Target of the Target Termination Fee pursuant hereto shall constitute the
sole and exclusive remedies available to Purchaser or Merger Sub hereunder for any and all Damages incurred by Purchaser or Merger
Sub as a result of any termination of this Agreement prior to the Effective Time.


 


(vii) Any
amounts payable by Target to Purchaser and RCF pursuant to this Section 7.3(b) shall be payable as follows: (A) an amount equal
to 30% of the Target Termination Fee shall be payable to RCF and (B) the remainder of the Target Termination Fee shall be payable
to Purchaser.


 


(c) Defined
Terms. For purposes of Sections 7.3(a) and (b), the following terms shall have the following meanings:


 


“Target Competing
Proposal” means: (i) any merger, take-over bid, amalgamation, plan of arrangement, business combination, consolidation, or
similar transaction in respect of Target; (ii) any purchase or other acquisition by a Person (other than Purchaser) of such number
of shares of Target’s Common Stock or any rights or interests therein or thereto which together with such Person’s
other direct or indirect holdings of shares of Common Stock and the holdings of any other Person or Persons with whom such first
Person may be acting jointly or in concert constitutes at least a majority of the outstanding shares of Target Common Stock; or
(iii) any proposal or offer to, or public announcement of an intention to do, any of the foregoing from any Person other than Purchaser.


 


 


 


 


 



     

     

    

48






 


 


 


“Target Termination
Fee” means an amount equal to 4% of the product of (i) 36,000,000 times (ii) the weighted average closing price per share
of Purchaser Common Stock on NASDAQ for the 40 trading days ending on February 24, 2012 (subject to equitable adjustment for stock
splits, reclassifications, combinations, reorganizations or other similar changes).


 


(d) Certain
Taxes and Other Related Fees.  All transfer, documentary, sales, use, stamp, registration and other such Taxes, and
all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection
with consummation of the transactions contemplated by this Agreement shall be paid by Purchaser when due, and Purchaser will, at
their own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges, and,
if required by applicable Law, Purchaser will, and will cause its Affiliates to, join in the execution of any such Tax Returns
and other documentation.


 


7.4 Amendment.  This
Agreement may be amended by the parties hereto, by action taken or authorized by their respective boards of directors, before or
after receipt of the Target Stockholder Approval and the Purchaser Stockholder Approval; provided, however, that no amendment shall
be made which by Law requires further approval or authorization by the Target Stockholders or the stockholders of Purchaser without
such further approval or authorization.  Notwithstanding the foregoing, this Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.


 


7.5 Extension;
Waiver.  At any time prior to the Effective Time, Purchaser (with respect to Target) and Target (with respect to
Purchaser and Merger Sub) may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations
or other acts of such party, (b) waive any inaccuracies in the representations and warranties contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein.  Any agreement
on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on
behalf of such party.


 


ARTICLE 8


MISCELLANEOUS


 


8.1 No
Survival.  None of the representations and warranties contained in this Agreement will survive the Effective Time.
This Section 8.1 does not limit any covenant of the parties to this Agreement which, by its terms, contemplates performance after
the Effective Time.


 


 


 


 


 



     

     

    

49






 


 


 


8.2 Cross
References to Defined Terms.  Capitalized terms used herein shall have the meanings ascribed to such terms on the
applicable pages noted in the following index of defined terms:


 


 


 


 


	Acquisition Proposal	51	 
	Action	50	 
	Affiliate	51	 
	Affiliate Transaction	30	 
	Agreement	1	 
	Albuquerque Lease	51	 
	Approvals	51	 
	Articles of Merger	2	 
	Audited Financial Statements	20	 
	Budget	31	 
	Business Day	51	 
	Cebolleta Agreement	51	 
	Certificate of Non-Foreign Status	42	 
	Certificates	5	 
	Closing	2	 
	Closing Date	2	 
	Code	3	 
	Confidentiality Agreement	41	 
	Contract	51	 
	Current Financial Condition	54	 
	Dissenting Shares	51	 
	Effective Time	2	 
	Employee Plan	52	 
	Englewood Lease	52	 
	Environmental Laws	52	 
	Environmental Lien	52	 
	ERISA	52	 
	ERISA Affiliate	52	 
	Exchange Act	52	 
	Exchange Agent	5	 
	Exchange Fund	5	 
	Exchange Ratio	4	 
	FIRPTA Affidavit	42	 
	FIRPTA Exemption Certificate	4	 
	FIRPTA Withheld Shares	3	 
	Foreign Target Stockholder	4	 
	GAAP	12	 
	Governmental Entity	52	 
	Hazardous Substance	52	 
	HSR Act	53	 
	Indebtedness	53	 
	Interim Financial Statements	20	 
	IRS	4	 
	knowledge	53	 
	Laws	53	 
	Lien	53	 
	Material Adverse Effect	53	 


 


 


 


 


 



     

     

    

50






 


 


 


	Material Target Contract	29	 
	Merger	1	 
	Merger Sub	1	 
	Merger Sub Common Stock	10	 
	Mineral Properties	54	 
	Most Recent Balance Sheet	20	 
	NASDAQ	54	 
	NCA	1	 
	Neutron Funding Agreement	54	 
	Option Plans	54	 
	Options	17	 
	Order	37	 
	Outside Termination Date	46	 
	Permit	11	 
	Person	54	 
	Proprietary Rights	28	 
	Purchaser	1	 
	Purchaser 10-K	11	 
	Purchaser Charter Documents	9	 
	Purchaser Common Stock	9	 
	Purchaser Disclosure Schedule	8	 
	Purchaser Financial Statements	12	 
	Purchaser Mining Claims	14	 
	Purchaser Option Plans	54	 
	Purchaser Options	9	 
	Purchaser Property	15	 
	Purchaser Proxy Statement	36	 
	Purchaser SEC Reports	12	 
	Purchaser Share Issuance	54	 
	Purchaser Stockholder Approval	16	 
	Purchaser Stockholder Meeting	35	 
	Purchaser Surface and Mineral Leases	14	 
	Purchaser Warrants	9	 
	Purchaser Water Rights	14	 
	RCF	55	 
	RCF Investment Agreement	55	 
	RMB	55	 
	RMB Agreement	55	 
	S-4	36	 
	Sarbanes-Oxley Act	13	 
	SEC	55	 
	Securities Act	55	 
	Shared Termination Fee	48	 
	Software	29	 
	Subsidiary	55	 
	Superior Proposal	55	 
	Surviving Corporation	1	 
	Target	1	 
	Target Charter Documents	17	 
	Target Common Stock	17	 
	Target Competing Proposal	48	 
	Target Disclosure Schedule	16	 
	Target Employee Plan	55	 
	Target Environmental Permits	15, 27	 
	Target Financial Statements	20	 
	Target Insurance Policies	25	 
	Target Mining Claims	24	 
	Target Property	27	 
	Target Stockholder Approval	30	 
	Target Stockholder Meeting	35	 
	Target Stockholders	56	 
	Target Surface and Mineral Leases	23	 
	Target Transaction Expenses	56	 
	Target Water Rights	24	 
	Tax	56	 
	Tax Return	56	 
	Transaction Agreements	1	 
	Transaction Cost Settlement Agreements	56	 
	Treas. Reg.	3	 
	Voting Agreements	56	 
	Warrants	17	 


  


8.3 Terms
not Defined Elsewhere.  The following terms, as used herein, shall have the following meanings:


 


“Action”
means any action, claim, suit, litigation, demand, cause of action, charge, complaint, arbitration or other proceeding before any
Governmental Entity.


 


“Acquisition Proposal”
means: (i) any merger, take-over bid, issuer bid, amalgamation, plan of arrangement, business combination, tender offer, exchange
offer, consolidation, recapitalization, liquidation, dissolution or winding-up in respect of Target or any Subsidiary of the Target;
(ii) any direct or indirect sale of assets (or any lease, long-term supply arrangement, license or other arrangement having the
same economic effect as a sale) of Target or its Subsidiaries representing 20% or more of the consolidated assets, revenues or
earnings of Target; (iii) any direct or indirect sale, issuance or acquisition of shares or other equity interests (or securities
convertible into or exercisable for such shares or interest) in Target or any of its Subsidiaries representing 20% or more of the
issued and outstanding equity or voting interest of Target or such Subsidiary or rights or interests therein or thereto; (iv) any
sale of any material interest in any material joint ventures or material mineral properties; (v) any similar material business
combination or transaction, of or involving Target, any Subsidiary of Target or material joint venture of Target, other than with
Purchaser; or (vi) any proposal or offer, or public announcement of an intention, to do any of the foregoing from any Person other
than Purchaser, provided, however, that the term “Acquisition Proposal” shall not include the transactions contemplated
by this Agreement.


 


“Affiliate”
means, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled
by or is under common control with such Person. For purposes of the foregoing, “control” means the possession, direct
or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership
of voting securities, by contract, or otherwise. For the avoidance of doubt, a Subsidiary of any Person shall be deemed to be an
Affiliate of such Person, and such Person shall be deemed to be an Affiliate of such Subsidiary.


 


“Albuquerque Lease”
means the Lease Agreement, dated April 12, 2007, between Target and Lohman Partners LLC for the lease of office space located at
2511 Broadbent Parkway, Albuquerque, New Mexico.


 


 


 


 


 



     

     

    

51






 


 


 


“Approvals”
means franchises, grants, qualifications, authorizations, licenses, permits, easements, consents, certificates, approvals and orders.


 


“Business Day”
means a day except a Saturday, a Sunday or any other day on which the SEC or banks in the City of New York are authorized or required
by Law to be closed.


 


“Cebolleta Agreement”
means the amendment of mining lease and agreement, dated as of February 12, 2012, among Target and the other parties thereto, documenting
the changes to the Cebolleta land.


 


“Contract”
means any written agreement, commitment, contract, note, bond, mortgage, indenture, lease, instrument or other binding arrangement.


 


“Dissenting Shares”
shall mean shares of Target Common Stock held as of the Effective Time by a Target Stockholder who has not voted such shares in
favor of the adoption of this Agreement and with respect to which appraisal shall have been duly demanded and perfected in accordance
with the NCA and not effectively withdrawn or forfeited prior to the Effective Time.


 


“Employee Plan”
means, with respect to any Person, any employee benefit plan, including any “employee benefit plan” as defined in Section
3(3) of ERISA, any stock purchase, stock option, stock appreciation, stock incentive, phantom stock, severance, termination, employment,
change-in-control, retention, insurance (including self-insurance), split-dollar, health, medical, disability, sick pay, workers
compensation, supplemental unemployment, post-employment, pension, savings, retirement, profit sharing, vacation, fringe benefit,
multiemployer, collective bargaining, bonus, incentive, deferred compensation, loan and any other employee benefit plan, agreement,
program, policy or other arrangement (including any funding mechanism theretofore or now in effect or required in the future as
a result of the transactions contemplated by this Agreement or otherwise), whether or not subject to ERISA, whether formal or informal.
Without limiting the generality of the foregoing, the term “Employee Plan” shall specifically include any commitment
or arrangement, made in an individual employment agreement or consulting agreement, which provides (or purports to provide) any
of the types of remuneration or benefits described in the preceding sentence.


 


“Englewood Lease”
means the Lease Agreement, dated April 15, 2008, between Target and Cognac Highland Court LLC for the lease of office space located
at 9000 East Nichols Avenue, Englewood, Colorado.


 


“Environmental
Laws” means all Laws and Orders of any international, provincial, federal, state, local and any other Governmental Entity
that relate to (i) pollution or the protection of the environment, protection of wildlife and/or wildlife habitat, protection of
cultural or historic resources, including those relating to reclamation, remediation or restoration of mineral or other properties,
the natural environment, (ii) the presence, use, production, generation, handling, transportation, treatment, generation, storage,
disposal, distribution, labelling, testing, processing, discharge, release, threatened release, control, or cleanup of any Hazardous
Substances, or the impact of Hazardous Substances on the environment, health or property, or (iii) public health and safety or
worker health and safety.


 


 


 


 


 



     

     

    

52






 


 


 


“Environmental
Lien” means any Lien in favor of any Governmental Entity arising under Environmental Laws.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA Affiliate”
means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a controlled group
or which is under common control with such Person within the meaning of Section 414 of the Code and related Treas. Reg.


 


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


 


“Governmental
Entity” means any (a) multinational, federal, provincial, state, regional, municipal or other government, or governmental
department, central bank, court, tribunal, arbitrator, commission, board, bureau or agency, whether U.S., Canadian, foreign or
multinational, (b) subdivision, agent, commission, board or authority of any of the foregoing or (c) stock exchange, including
NASDAQ.


 


“Hazardous Substance”
means any chemical, material or substance in any form, whether solid, liquid, gaseous, semisolid or any combination thereof, whether
waste material, raw material, finished product, intermediate product, by-product or any other material or article, that is listed
or regulated under any applicable Environmental Laws as a hazardous substance, toxic substance, waste or contaminant or is otherwise
listed or regulated under any applicable Environmental Laws because it poses a hazard to human health or the environment, including
petroleum products, asbestos, PCBs, urea formaldehyde foam insulation and lead-containing paints or coatings.


 


“Indebtedness”
means, without duplication (i) all indebtedness or other obligations of the Target for borrowed money, whether current, short-term
or long-term, secured or unsecured, including all overdrafts and negative cash balances, whether accrued or unaccrued, (ii) all
obligations of any Target as lessee under leases that are required to be treated as capital leases in accordance with GAAP, (iii)
all off-balance sheet financings of Target, including synthetic leases and project financings, (iv) all payment obligations of
Target in respect of banker’s acceptances or letters of credit (other than stand-by letters of credit in support of ordinary
course trade payables), (v) all Target Transaction Expenses, (vi) all other liabilities or obligations on which interest is customarily
charged, (vii) all indebtedness referred to in clauses (i) through (vii) above of any Person other than Target that is either guaranteed
by, or secured by a Lien upon any property owned by, Target, and (vii) accrued and unpaid interest on, and prepayment premiums,
penalties or similar contractual charges arising as a result of the discharge of, any such foregoing obligation.


 


“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.


 


“knowledge”
of (i) Target shall mean the actual knowledge of facts, matters or circumstances of the officers and directors of Target listed
on Exhibit C, and (ii) Purchaser and Merger Sub shall mean the actual knowledge of facts, matters or circumstances of the Persons
listed on Exhibit D.


 


 


 


 


 



     

     

    

53






 


 


 


“Laws” or
“Law” means laws, statutes, rules, regulations, orders, ordinances, codes, treaties, and judicial, arbitral, administrative,
ministerial or departmental judgments, awards or other requirements of any Governmental Entity.


 


“Lien” means,
with respect to any property, right or asset, any mortgage, lien, pledge, charge, security interest, purchase option, right of
first offer or refusal, encumbrance or other adverse claim of any kind in respect of such property or asset.


 


“Material Adverse
Effect” means, with respect to each party, any fact, circumstance, change, event, occurrence or effect that is or would reasonably
be expected to be materially adverse to the business, condition (financial or otherwise), properties, assets, liabilities, obligations
(whether absolute, accrued, conditional or otherwise), operations or results of operations of such party, its Subsidiaries and
its material joint ventures, taken as a whole, other than any such fact, circumstance, change, event, occurrence or effect relating
to (i) the announcement of the execution of this Agreement or the transactions contemplated hereby, (ii) changes, circumstances
or conditions generally affecting the international or national uranium mining industry, (iii) actions taken or omitted to be taken
with the prior written consent of the Purchaser (in the case of actions or omissions taken by Target) or Target (in the case of
actions or omissions taken by Purchaser) (iv) changes in general economic conditions in the United States, (v) changes in generally
applicable Laws or regulations (other than orders, judgments or decrees against such party, any of its Subsidiaries or any of its
material joint ventures), (vi) changes in GAAP, (vii) any change in the trading price or volume of a party’s equity securities,
either (A) related to this Agreement or the announcement thereof, or (B) primarily resulting from a fact, circumstance, change,
event, occurrence excluded from this definition of Material Adverse Effect, (viii) any failure by a party to meet any internal
or published projections, forecasts or revenue or synergy or earnings predictions (collectively “Estimates”) (it being
understood that the foregoing shall not prevent a party from asserting that any fact, circumstance, change, event, occurrence or
effect that may have contributed to such change in trading prices or Estimates independently constitutes a Material Adverse Effect),
or (ix) with respect to Target, (1) the fact that Target has substantially no cash, current assets or sources of revenue, and has
significant liabilities and obligations under the Existing Senior Loan Documents (as defined in the Neutron Funding Agreement)
and the Budget (“Current Financial Condition”); (2) the change in the financial condition of Target from the date of
the Most Recent Balance Sheet to the Current Financial Condition and (3) the effect of any additional liabilities incurred pursuant
to transactions contemplated by the Neutron Funding Agreement and the other Transaction Agreements; provided, however, that such
fact, circumstance, change, event, occurrence or effect referred to in clauses (ii) or (iii) above does not: (A) primarily relate
only to (or have the effect of primarily relating only to) such party, its Subsidiaries and its material joint ventures, taken
as a whole, or (B) have a materially disproportionate adverse effect on such party, its Subsidiaries and its material joint ventures,
taken as a whole, compared to other companies of similar size operating in the industry in which such party, its Subsidiaries and
its material joint ventures operate.


 


“Mineral Properties”
means with respect to a party the natural or mineral resource or exploration properties of the party or its Subsidiaries, and for
greater certainty includes any mines or development projects in which the party or its Subsidiaries has an interest.


 


 


 


 


 



     

     

    

54






 


 


“NASDAQ”
means The Nasdaq Stock Market.


 


“Neutron Funding
Agreement” means that certain Funding Agreement, dated as of the date hereof, among Purchaser, Target and RCF, attached hereto
as Exhibit E.


 


“Option Plans”
means the stock option or incentive plans for directors, officers, employees and consultants (if any) of such party and other eligible
persons (as applicable).


 


“Person”
means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited liability company, unlimited liability company or joint
stock company), firm or other enterprise, association, organization, entity or Governmental Entity.


 


“Purchaser Option
Plans” means the Options Plans of Purchaser set forth in the Purchaser SEC Reports.


 


“Purchaser Share
Issuance” means the issuance by Purchaser of shares of Purchaser Common Stock in the Merger and pursuant to the Transaction
Documents.


 


“RCF” means
Resource Capital Fund V L.P.


 


“RCF Investment
Agreement” means that certain Investment Agreement, dated as of the date hereof, among Purchaser, Target and RCF, attached
hereto as Exhibit F.


 


“RMB” means
RMB Resources, Inc.


 


“RMBAH”
means RMB Australia Holdings Limited.


 


“RMB Agreement”
means that certain agreement, dated as of the date hereof, among Purchaser, Target, RMBAH and RMB, attached hereto as Exhibit G.


 


“SEC” means
the United States Securities and Exchange Commission.


 


“Securities Act”
shall mean the Securities Act of 1933, as amended.


 


“Subsidiary”
shall mean, when used with reference to any party, any Person of which such party (either alone or through or together with any
other Subsidiary) either owns, directly or indirectly, fifty percent (50%) or more of the outstanding capital stock or other equity
interests the holders of which are generally entitled to vote for the election of directors or members of any other governing body
of such Person or, in the case of a Person that is a partnership, is a general partner of such partnership, or any Person the accounts
of which such party is required to consolidate in its own financial statements under the generally accepted accounting principles
applicable to such party.


 


“Superior Proposal”
means an Acquisition Proposal that: (i) is made in writing after the date hereof; (ii) was not solicited after the date hereof
in contravention of Section 5.12; (iii) is made for all of the shares of Target Common Stock; (iv) that is reasonably capable of
being completed, taking into account all legal, financial, regulatory and other aspects of such proposal and the party making such
proposal; (v) that is not subject to any financing condition and in respect of which any required financing to complete such Acquisition
Proposal has been obtained (as demonstrated to the satisfaction of the Target board of directors, acting in good faith, after receipt
of advice from its financial advisors and outside legal counsel); (vi) that is not subject to any due diligence and/or access condition;
(vii) that is offered or made available to all stockholders of Target on the same terms; and (viii) in respect of which the Target
board of directors determines in good faith (after receipt of advice from its financial advisors with respect to (y) below and
outside legal counsel with respect to (x) below) that (x) failure to recommend such Acquisition Proposal to Target’s stockholders
would be inconsistent with its fiduciary duties and (y) such Acquisition Proposal taking into account all of the terms and conditions
thereof, if consummated in accordance with its terms (but not assuming away any risk of non-completion), would result in a transaction
more favorable to stockholders from a financial point of view than the Merger (including any adjustment to the terms and conditions
of the Merger and this Agreement proposed by Purchaser pursuant to Section 5.12).


 


 


 


 


 



     

     

    

55






 


 


 


“Target Employee
Plan” means any Employee Plan under which (i) any current or former director, officer, consultant or employee of Target or
any of its Subsidiaries (or any of their beneficiaries or dependants) has any present or future right to benefits and which is
contributed to, entered into, sponsored by or maintained by Target, any of its Subsidiaries or any of their ERISA Affiliates or
(ii) Target or any of its Subsidiaries has or reasonably would be expected to have any present or future statutory, contractual
or other liability.


 


“Target Stockholders”
means holders of shares of Target Common Stock.


 


“Target Transaction
Expenses” means all out-of-pocket fees and expenses and expenses incurred by Target in connection with or related to the
transactions contemplated by this Agreement, including investment banking, legal, and accounting fees and expenses, that are unpaid
immediately prior to the Closing.


 


“Tax” and
“Taxes” means any and all taxes, charges, fees, levies or other assessments imposed by Laws, including all income taxes
(including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items
of income) and all capital taxes, mining taxes, gross receipts taxes, environmental taxes, profits taxes, disability taxes, registration
taxes, sales taxes, use taxes, ad valorem taxes, value added taxes, transfer taxes, franchise taxes, license taxes, development
taxes, education taxes, business taxes, social services taxes, surtaxes, land transfer taxes, harmonized sales taxes, withholding
taxes or other withholding obligations, net worth taxes, recording taxes, capital stock taxes, payroll taxes, employment taxes,
excise taxes, stamp taxes, occupation taxes, premium taxes, property taxes, windfall profits taxes, alternative or add-on minimum
taxes, goods and services taxes, service use taxes, customs duties or other governmental charges, estimated or other taxes, assessments,
charges, duties or imposts of any kind whatsoever, including unemployment insurance payments and workers’ compensation premiums,
together with any installments with respect thereto, and any interest, penalties, additional taxes, additions to tax or other amounts
imposed by any taxing authority with respect to the foregoing and any liability for any such Taxes imposed by Law with respect
to any other Person, including under any tax sharing, indemnification or other agreements or arrangements or any liability for
taxes of a predecessor or transferor entity.


 


 


 


 


 



     

     

    

56






 


 


 


“Tax Return”
means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.


 


“Transaction Cost
Settlement Agreements” means the agreements in the form attached hereto as Exhibit H, dated as of the date hereof, among
Purchaser, Target and the other parties identified on Exhibit I which waive all of Target’s severance or change of control
payment obligations to such parties.


 


“Voting Agreements”
means the voting agreements in the form attached hereto as Exhibit J (as the same may be amended upon the mutual agreement of Purchaser
and Target) between Purchaser and the Target Stockholders listed on Exhibit A hereto setting forth the terms and conditions upon
which they have agreed, among other things, to vote their shares of Target Common Stock to approve the Merger.


 


8.4 Notices.  All
notices, requests, demands, letters, waivers and other communications required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) mailed, certified or registered mail
with postage prepaid, (c) sent by next-day or overnight mail or delivery or (d) sent by fax, as follows:


 


if to Purchaser or Merger
Sub:







Uranium Resources
Inc.


405 State Highway
121 Bypass,


Building A, Suite 110


Lewisville, Texas 75067


Attention:  President


Telecopy No.:
(505) 842-8123







with a copy to:







Uranium Resources
Inc.


405 State Highway
121 Bypass,


Building A, Suite 110


Lewisville, Texas 75067


Attention:  Treasurer


Telecopy No.:
(505) 842-8123







and







Baker & Hostetler
LLP


303 East 17th
Avenue, Suite 1100


Denver, Colorado
80203-1264


Attention:        
Alfred C. Chidester


Telecopy No.:   (303)
861-7805







 


 


 


 



     

     

    

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if to Target:


 


Neutron Energy
Inc.


9000 E. Nichols
Avenue


Suite 225


Englewood, Colorado
80112


Attn.: Chief Executive
Officer


Telecopy No.:
(303) 531-0519







with a copy to







Hogan Lovells
US LLP


One Tabor Center,
Suite 1500


1200 Seventeenth
Street


Denver, Colorado
80202


Attention: Paul
Hilton


Telecopy No.: 
(303) 899-7333







All such notices, requests,
demands, letters, waivers and other communications shall be deemed to have been received (w) if by personal delivery, on the day
of such delivery, (x) if by certified or registered mail, on the fifth Business Day after the mailing thereof, (y) if by next-day
or overnight mail or delivery, on the day delivered or (z) if by fax, on the day following the day on which such fax was sent,
provided that a copy is also sent by certified, registered or overnight mail.


 


8.5 Interpretation.  When
a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement
unless otherwise indicated.  The headings and the table of contents contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement.  All references to a dollar ($)
amount in this Agreement refer to United States Dollars.


 


8.6 Counterparts.  This
Agreement may be executed in counterparts, which together shall constitute one and the same Agreement.  The parties may
execute more than one copy of the Agreement, each of which shall constitute an original.


 


8.7 Entire
Agreement.  This Agreement (including the documents and the instruments referred to herein), constitutes the entire
agreement among the parties and supersede all prior agreements and understandings, agreements or representations by or among the
parties, written and oral, with respect to the subject matter hereof and thereof.


 


8.8 Third
Party Beneficiaries.  Other than RCF for purposes of the representations and warranties and Section 7.3, nothing
in this Agreement, express or implied, is intended or shall be construed to create any third party beneficiaries; provided,
however, that the provisions in Article 2 concerning issuance of the Purchaser Common Stock at the Effective Time and Section
5.15 concerning directors’ and officers’ liability insurance are intended for the benefit of the individuals specified
therein.


 


 


 


 


 



     

     

    

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8.9 Governing
Law.  Except to the extent that the Laws of the jurisdiction of organization of any party hereto, or any other jurisdiction,
are mandatorily applicable to the Merger or to matters arising under or in connection with this Agreement, this Agreement shall
be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with, and any disputes
arising out of or related to this Agreement shall be interpreted, construed and governed by and in accordance with, the Laws of
the State of Colorado without giving effect to principles of conflict of laws.  The parties hereby irrevocably submit
to the jurisdiction of any state or federal court located in the State of Colorado for any litigation arising out of or relating
to the interpretation and enforcement of this Agreement and of the documents referred to in this Agreement, and in respect of the
transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any Action for the interpretation
or enforcement hereof or of any such document, that it is not subject thereto or that such Action may not be brought or is not
maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not
be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such Actions shall be
heard and determined in such courts of the State of Colorado. The parties hereby consent to and grant any such court jurisdiction
over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in
connection with any such Action in the manner provided in Section 8.4 or in such other manner as may be permitted by Law shall
be valid and sufficient service thereof.


 


8.10 Specific
Performance.  Target acknowledges that its business is unique and recognizes and affirms that in the event of a breach
of this Agreement by Target prior to the valid termination of this Agreement or the Closing, money damages may be inadequate and
Purchaser may have no adequate remedy at law.  Accordingly, Target agrees that, subject to Section 7.3(b)(vi), Purchaser
shall have the right, prior to the valid termination of this Agreement or the Closing, in addition to any other rights and remedies
existing in their favor, to enforce its rights and the obligations of Target hereunder not only by an action or actions for damages,
but also by an action or actions for specific performance, injunctive or other equitable relief.  Purchaser and Merger
Sub acknowledge and affirm that in the event of a breach of this Agreement by Purchaser or Merger Sub prior to Closing, money damages
may be inadequate and Target may have no adequate remedy at law.  Accordingly, Purchaser and Merger Sub agree that Target
shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and the obligations
of Purchaser and Merger Sub hereunder not only by an action or actions for damages, but also by an action or actions for specific
performance, injunctive or other equitable relief.


 


8.11 Assignment.  Neither
this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other parties.  Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors
and assigns.


 


[Signature Page Follows.]


 


 


 


 


 



     

     

    

59






 


 


 


IN WITNESS WHEREOF, Purchaser,
Merger Sub and Target have signed this Agreement as of the date first written above.







 


	 	URANIUM RESOURCES, INC.	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Donald C. Ewigleben	 
	 	Name:  Donald C. Ewigleben	 
	 	Title:  President and Chief Executive Officer	 
	 	 	 	 
	 	 	 	 
	 	URI MERGER CORPORATION	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Donald C. Ewigleben	 
	 	Name:  Donald C. Ewigleben	 
	 	Title:  President and Chief Executive Officer	 
	 	 	 	 
	 	 	 	 
	 	NEUTRON ENERGY, INC.	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Gary C. Huber	 
	 	Name:  Gary C. Huber	 
	 	Title:  President and Chief Executive Officer