Agreement
and Plan of Merger


 


among


 


nFüsz,
Inc., as the Parent


 


NF
Merger Sub, Inc., as Merger Sub No.
1,


 


NF
Acquisition Company, LLC, as Merger Sub
No. 2,


 


Sound
Concepts, Inc., as the Company,


 


the
Shareholders of Sound Concepts, Inc.,


 


and


 


the
Shareholders’ Representative


 




    	 



    	 



    

 


TABLE
OF CONTENTS


 


	ARTICLE
    I DEFINITIONS	8
	 	 
	ARTICLE
    II the merger	18
	 	 
	Section
    2.01 The Merger.	18
	 	 
	Section
    2.02 Closing.	19
	 	 
	Section
    2.03 Closing Deliverables.	19
	 	 
	Section
    2.04 Effective Time.	21
	 	 
	Section
    2.05 Effects of the Merger.	21
	 	 
	Section
    2.06 Organization; Operating Agreement.	21
	 	 
	Section
    2.07 Directors and Officers.	21
	 	 
	Section
    2.08 Effect of the Merger on Capital Stock of the Company and Merger Sub No. 1 and the Equity of Merger Sub No. 2.	21
	 	 
	Section
    2.09 Surrender and Payment.	22
	 	 
	Section
    2.10 Escrow Shares.	23
	 	 
	Section
    2.11 No Further Ownership Rights in Company Shares.	23
	 	 
	Section
    2.12 Adjustments.	23
	 	 
	Section
    2.13 Withholding Rights.	23
	 	 
	Section
    2.14 Tax-Free Merger.	23
	 	 
	Section
    2.15 Waiver of Dissenters’ Rights.	23
	 	 
	ARTICLE
    III REPRESENTATIONS AND WARRANTIES OF THE Company and the sHAREholders	23
	 	 
	Section
    3.01 Authority of the Shareholders; No Conflicts or Consents in Respect of the Shareholders.	24
	 	 
	Section
    3.02 Organization and Qualification of the Company; Authority of the Company.	24
	 	 
	Section
    3.03 Capitalization.	25
	 	 
	Section
    3.04 No Subsidiaries.	26


 




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	Section
    3.05 No Conflicts or Consents in Respect of the Company.	26
	 	 
	Section
    3.06 Financial Statements.	26
	 	 
	Section
    3.07 No Undisclosed Liabilities.	27
	 	 
	Section
    3.08 Absence of Certain Changes.	28
	 	 
	Section
    3.09 Material Contracts.	30
	 	 
	Section
    3.10 Title to Assets; No Real Property.	31
	 	 
	Section
    3.11 Condition and Sufficiency of Assets.	32
	 	 
	Section
    3.12 Intellectual Property.	33
	 	 
	Section
    3.13 Inventory.	34
	 	 
	Section
    3.14 Accounts Receivable.	34
	 	 
	Section
    3.15 Customers and Suppliers.	34
	 	 
	Section
    3.16 Insurance.	35
	 	 
	Section
    3.17 Legal Proceedings; Governmental Orders.	35
	 	 
	Section
    3.18 Compliance With Laws; Permits.	36
	 	 
	Section
    3.19 Environmental Matters.	36
	 	 
	Section
    3.20 Employee Benefit Matters.	37
	 	 
	Section
    3.21 Employee Matters.	40
	 	 
	Section
    3.22 Taxes.	41
	 	 
	Section
    3.23 Books and Records.	44
	 	 
	Section
    3.24 Brokers.	44
	 	 
	Section
    3.25 Affiliate Agreements.	44
	 	 
	Section
    3.26 Investment Representations.	44
	 	 
	Section
    3.27 No Other Representations or Warranties.	45
	 	
	Section
    3.28 Absence of Company Material Adverse Effect; Investigation.	45
	 	 
	ARTICLE
    IV REPRESENTATIONS AND WARRANTIES OF THE PARENT and merger sub	46
	 	 
	Section
    4.01 Organization and Authority.	46


 




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	Section
    4.02 No Conflicts; Consents.	46
	 	 
	Section
    4.03 No Prior Merger Sub Operations.	47
	 	 
	Section
    4.04 Brokers.	47
	 	 
	Section
    4.05 Sufficiency of Funds.	47
	 	 
	Section
    4.06 Legal Proceedings.	47
	 	 
	Section
    4.07 SEC Reports.	47
	 	 
	Section
    4.08 Capitalization.	48
	 	 
	Section
    4.09 Financial Statements.	48
	 	 
	Section
    4.10 Permits; Compliance with Applicable Laws.	49
	 	 
	Section
    4.11 Absence of Material Adverse Effect.	49
	 	 
	Section
    4.12 Independent Investigation.	49
	 	 
	ARTICLE
    V COVENANTS	49
	 	 
	Section
    5.01 Conduct of Business Prior to the Closing.	49
	 	 
	Section
    5.02 Access to Information.	50
	 	 
	Section
    5.03 No Solicitation of Other Bids.	50
	 	 
	Section
    5.04 Notice of Certain Events.	51
	 	 
	Section
    5.05 Confidentiality.	52
	 	 
	Section
    5.06 Non-competition; Non-solicitation.	53
	 	 
	Section
    5.07 Resignations.	54
	 	 
	Section
    5.08 Governmental Approvals and Consents.	54
	 	 
	Section
    5.09 Directors’ and Officers’ Indemnification and Insurance.	55
	 	 
	Section
    5.10 Closing Conditions.	56
	 	 
	Section
    5.11 Public Announcements.	57
	 	 
	Section
    5.12 Affiliate Agreements.	57
	 	 
	Section
    5.13 Audited Financial Statements.	57
	 	 
	Section
    5.14 Further Assurances.	57


 




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	ARTICLE
    VI TAX MATTERS	57
	 	 
	Section
    6.01 Taxes.	57
	 	 
	Section
    6.02 Certain Tax Covenants.	57
	 	 
	Section
    6.03 Termination of Existing Tax Indemnity, Tax Sharing, and Tax Allocation Agreements.	58
	 	 
	Section
    6.04 Tax Returns.	58
	 	 
	Section
    6.05 Straddle Period.	59
	 	 
	Section
    6.06 Closing Date Taxes.	59
	 	 
	Section
    6.07 Cooperation and Exchange of Information.	60
	 	 
	Section
    6.08 Tax Indemnities.	60
	 	 
	Section
    6.09 Control of Audit or Tax Litigation.	61
	 	 
	Section
    6.10 Tax Refunds.	61
	 	
	Section
    6.11 No Tax Return Amendments.	61
	 	 
	Section
    6.12 Survival.	61
	 	 
	Section
    6.13 Overlap.	61
	 	 
	ARTICLE
    VII CONDITIONS TO CLOSING	62
	 	 
	Section
    7.01 Conditions to Obligations of the Parent, Merger Sub No.1, and Merger Sub No. 2.	62
	 	 
	Section
    7.02 Conditions to Obligations of the Company and the Shareholders.	63
	 	 
	ARTICLE
    VIII INDEMNIFICATION	64
	 	 
	Section
    8.01 Survival.	64
	 	 
	Section
    8.02 Indemnification By the Shareholders.	64
	 	 
	Section
    8.03 Indemnification By the Parent.	65
	 	 
	Section
    8.04 Certain Limitations.	65
	 	 
	Section
    8.05 Indemnification Procedures.	66
	 	 
	Section
    8.06 Payments.	69
	 	 
	Section
    8.07 Tax Treatment of Indemnification Payments.	69


 




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	Section
    8.08 Effect of Investigation.	69
	 	 
	Section
    8.09 Exclusive Remedies.	69
	 	 
	Section
    8.10 No Circular Recovery.	69
	 	 
	ARTICLE
    IX TERMINATION	70
	 	 
	Section
    9.01 Termination.	70
	 	 
	Section
    9.02 Effect of Termination.	70
	 	 
	ARTICLE
    X MISCELLANEOUS	71
	 	 
	Section
    10.01 Expenses.	71
	 	 
	Section
    10.02 Notices.	71
	 	 
	Section
    10.03 Interpretation.	72
	 	 
	Section
    10.04 Headings.	72
	 	 
	Section
    10.05 Severability.	72
	 	 
	Section
    10.06 Entire Agreement.	73
	 	 
	Section
    10.07 Successors and Assigns.	73
	 	 
	Section
    10.08 No Third-party Beneficiaries.	73
	 	 
	Section
    10.09 Amendment and Modification; Waiver.	73
	 	 
	Section
    10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.	73
	 	 
	Section
    10.11 Specific Performance.	74
	 	 
	Section
    10.12 Counterparts.	74
	 	 
	Section
    10.13 Shareholders’ Representative.	74
	 	 
	Section
    10.14 Acknowledgement.	76


 




    	6



    	 



    

 


Index
of Exhibits


 


Exhibit
A – Form of Escrow Agreement


 


Exhibit
B – Form of Lock-up Agreement


 


Exhibit
C – Directors and Officers of the Surviving Entity


 




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AGREEMENT
AND PLAN OF MERGER


 


This
Agreement and Plan of Merger (this “Agreement”), dated as of November 8, 2018, is entered into by and among
nFüsz, Inc., a Nevada corporation (the “Parent”), NF Merger Sub, Inc., a Utah corporation and a wholly-owned
subsidiary of the Parent (“Merger Sub No. 1”), NF Acquisition Company, LLC, a Utah limited liability company
and a wholly-owned subsidiary of the Parent (“Merger Sub No. 2”), Sound Concepts, Inc., a Utah corporation
(the “Company”), the undersigned shareholders of the Company (each, a “Shareholder,” and,
collectively, the “Shareholders”), and the Shareholders’ Representative (as defined below).


 


RECITALS


 


WHEREAS,
(i) the respective Boards of Directors and Board of Managers of the Parent, Merger Sub No. 1, Merger Sub No. 1, and the Company
have deemed it advisable and in the best interests of their respective stockholders, members, and shareholders that the Company
be acquired by the Parent, which acquisition is to be effected by a two-step merger, consisting of merging Merger Sub No. 1 with
and into the Company, with the Company surviving the “first step” of the Merger as a wholly-owned subsidiary of the
Parent and, immediately thereafter, merging the Company with and into Merger Sub No. 2, with Merger Sub No. 2 surviving the “second
step” of the Merger (collectively, the “Merger”), all on the terms and subject to the conditions set
forth herein, (ii) such Boards of Directors and Board of Managers have approved this Agreement and the Merger, and (iii) the Board
of Directors of the Company (the “Company Board”) has recommended the approval of this Agreement and the Merger
by the Shareholders;


 


WHEREAS,
the Shareholders own all of the issued and outstanding Company Shares (as defined below) and, by their execution of this Agreement,
hereby approve this Agreement, the Merger, and the transactions contemplated hereby by written consent in accordance with the
applicable provisions of the URBCA (as defined below);


 


WHEREAS,
the parties hereto intend that the Merger shall qualify as a “reorganization” under the provisions of Section 368(a)
of the Code (as defined below) and for this Agreement to constitute a “plan of reorganization” within the meaning
of Treasury Regulations promulgated thereunder.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE
I

Definitions


 


The
following terms have the meanings specified or referred to in this ARTICLE I:


 


“Acquisition
Proposal” has the meaning set forth in Section 5.03(a).


 


“Action”
means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation,
citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether
at law or in equity, by or before any Governmental Authority.


 




    	8



    	 



    

 


“Affiliate”
of a Person means any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, such Person. The term “control” (including the terms “controlled by”
and “under common control with”) means the possession, directly or indirectly, 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.


 


“Affiliate
Agreement” has the meaning set forth in Section 3.25.


 


“A.G.P.”
means A.G.P. / Alliance Global Partners, a unit of Euro Pacific Capital, Inc.


 


“Agreement”
has the meaning set forth in the preamble to this Agreement.


 


“Annual
Financial Statements” has the meaning set forth in Section 3.06.


 


“Articles
of Merger,” “First Step Articles of Merger,” and “Second Step Articles of Merger,”
have the meanings set forth in Section 2.04.


 


“Audited
Financial Statements” has the meaning set forth in Section 5.13.


 


“Basket”
has the meaning set forth in Section 8.04(a).


 


“Benefit
Plan” has the meaning set forth in Section 3.20(a).


 


“Business
Day” means any day except Saturday, Sunday, or any other day on which commercial banks located in the State of Utah
or the State of California are authorized or required by Law to be closed for business.


 


“Cash
Consideration” means an amount in cash equal to $15,000,000.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.


 


“Closing”
has the meaning set forth in Section 2.02.


 


“Closing
Date” has the meaning set forth in Section 2.02.


 


“Closing
Indebtedness Amount” means, as of immediately prior to the Effective Time, the aggregate amount of Indebtedness of the
Company, including all accrued and unpaid interest, prepayment penalties or fees, and other unpaid fees and expenses payable in
respect of such Indebtedness through the Effective Time.


 


“Closing
Merger Consideration” means the sum of (a) the Net Cash Consideration plus (b) the Closing Parent Shares.


 




    	9



    	 



    

 


“Closing
Parent Shares” means the sum of (a) the Parent Shares less (b) the Escrow Shares.


 


“Code”
means the Internal Revenue Code of 1986, as amended, or any successor law, and regulations issued by the Internal Revenue Service
pursuant thereto.


 


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


 


“Company”
has the meaning set forth in the preamble to this Agreement.


 


“Company
Board” has the meaning set forth in the recitals to this Agreement.


 


“Company
Common Stock” means the common stock, no par value per share, of the Company.


 


“Company
Intellectual Property” means all Intellectual Property that is owned or held for exclusive use by the Company.


 


“Company
IP Agreements” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants
not to sue, permissions, and other Contracts (including any right to receive or obligation to pay royalties or any other consideration),
whether written or oral, relating to Intellectual Property to which the Company is a party, beneficiary, or otherwise bound.


 


“Company
IP Registrations” means all Company Intellectual Property that is subject to any issuance registration, application,
or other filing by, to, or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered
trademarks, domain names, and copyrights, issued and reissued patents, and pending applications for any of the foregoing.


 


“Company
Material Adverse Effect” means any event, occurrence, fact, condition, or change that is, or would reasonably be expected
to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial
or otherwise), or assets of the Company or (b) the ability of the Company or any Shareholder to consummate the transactions contemplated
hereby on a timely basis; provided, however, that “Company Material Adverse Effect” shall not include any of
the following, or any event, occurrence, fact, condition, or change, directly or indirectly, arising out of or attributable to:
(i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Company operates;
(iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities,
or terrorism, or the escalation or worsening thereof; (v) natural disasters, acts of God or other force majeure events; (vi) any
action required or permitted by this Agreement, except pursuant Section 3.05 and Section 5.08; (vii) any changes
in applicable Laws or accounting rules, including GAAP, or the interpretation or enforcement thereof; or (viii) the public announcement,
pendency, or completion of the transactions contemplated by this Agreement; provided, further, however, that any event,
occurrence, fact, condition, or change referred to in clauses (i) through (v) immediately above shall be taken into account in
determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur to the extent that
such event, occurrence, fact, condition, or change has a disproportionate effect on the Company compared to other participants
in the industries in which the Company conducts its businesses.


 


“Company
Shares” means shares of Company Common Stock.


 




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“Company
Transaction Expenses” means all (a) costs, fees, and expenses incurred (whether or not invoiced or accrued) by the Company
prior to the Closing in connection with this Agreement and the transactions contemplated hereby, including fees and expenses of
advisors and consultants (including investment bankers, brokers, lawyers, and accountants) arising out of, relating to, or incidental
to the discussion, evaluation, negotiation, and documentation of the transactions contemplated hereby; (b) transactional bonuses
that become due as a result of the Merger and are actually paid or accrued by virtue of obligations created by the Company prior
to the Closing Date; and (c) severance payments that become due as a result of the Merger and are actually paid or accrued by
virtue of obligations created by the Company prior to the Closing Date.


 


“Contracts”
means all contracts, leases, deeds, mortgages, licenses, instruments, notes, undertakings, indentures, joint ventures, and all
other legally binding agreements, commitments, and arrangements, whether written or oral.


 


“D&O
Indemnified Party” has the meaning set forth in Section 5.09(a).


 


“D&O
Indemnifying Parties” has the meaning set forth in Section 5.09(b).


 


“Direct
Claim” has the meaning set forth in Section 8.05(c).


 


“Disclosure
Schedules” means the Schedules delivered by the Company under ARTICLE III concurrently with the execution and
delivery of this Agreement.


 


“Disputed
Amounts” has the meaning set forth in Section 2.16(c)(iii).


 


“Dollars”
or “$” means the lawful currency of the United States of America.


 


“Effective
Time” has the meaning set forth in Section 2.04.


 


“Encumbrance”
means any charge, valid claim, community property interest, pledge, condition, equitable interest, lien (statutory or other),
option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.


 


“Environmental
Claim” means any Action, Governmental Order, lien, fine, penalty, or, as to each, any settlement or judgment arising
therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the
costs of enforcement proceedings, investigations, cleanup, governmental response, removal or remediation, natural resources damages,
property damages, personal injuries, medical monitoring, penalties, contribution, indemnification, and injunctive relief) arising
out of, based on, or resulting from: (a) the presence, Release of, or exposure to, any Hazardous Materials or (b) any actual or
alleged non-compliance with any Environmental Law or term or condition of any Environmental Permit.


 


“Environmental
Law” means any applicable Law or binding agreement with any Governmental Authority: (a) relating to pollution (or the
cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment
(including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure
to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge,
transportation, processing, production, disposal, or remediation of any Hazardous Materials.


 




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“Environmental
Notice” means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim
relating to actual or alleged non-compliance with any Environmental Law or any term or condition of any Environmental Permit.


 


“Environmental
Permit” means any Permit, letter, clearance, consent, waiver, closure, exemption, decision, or other action required
under, or issued, granted, given, authorized by, or made pursuant to, Environmental Law.


 


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


 


“ERISA
Affiliate” means all employers (whether or not incorporated) that would be treated together with the Company or any
of its Affiliates as a “single employer” within the meaning of Section 414 of the Code.


 


“Escrow
Agent” means ●.


 


“Escrow
Agreement” means the Escrow Agreement to be entered into by the Parent, the Shareholders’ Representative, and
the Escrow Agent at the Closing, substantially in the form of Exhibit A.


 


“Escrow
Shares” means twenty-five percent (25%) of the number of Parent Shares, which shall have all of the attributes of Parent
Shares (e.g., the rights to receive dividends, if, when, and as declared by the Company and the rights to vote) and, subject
to the provisions of the Escrow Agreement, the Shareholders shall be the record and beneficial owners thereof.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission
promulgated thereunder.


 


“Financial
Statements” has the meaning set forth in Section 3.06.


 


“GAAP”
means United States generally accepted accounting principles in effect from time to time.


 


“Government
Contracts” has the meaning set forth in Section 3.09(a)(viii).


 


“Governmental
Authority” means any federal, state, local, or foreign government or political subdivision thereof, any agency or instrumentality
of such government or political subdivision, any self-regulated organization or other non-governmental regulatory authority or
quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the
force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.


 


“Governmental
Order” means any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with
any Governmental Authority.


 




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“Hazardous
Materials” means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid,
mineral, or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of
similar import or regulatory effect under Environmental Laws and (b) any petroleum or petroleum-derived products, radon, radioactive
materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation, and polychlorinated
biphenyls.


 


“Indebtedness”
means, without duplication and with respect to the Company, (a) all indebtedness for borrowed money, (b) all obligations for the
deferred purchase price of property or services, (c) all obligations evidenced by notes, bonds, debentures, or other similar instruments,
(d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property
acquired (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (f) all obligations, contingent or otherwise, under acceptance, letter of credit, or similar
facilities, (g) all obligations under any interest rate, currency swap, or other hedging agreement or arrangement, (h) all obligations
in the nature of guarantees made by the Company on behalf of any third party in respect of the obligations described in clauses
(a) through (g), above, but only to the extent of amounts actually due by or from the Company pursuant to such guaranties, and
(i) any unpaid interest or prepayment, exit, or rescheduling or other penalties, premiums, costs, and/or fees that would arise
or become due as a result of the prepayment of any of the obligations referred to in the foregoing clauses (a) through (h).


 


“Indemnified
Party” has the meaning set forth in Section 8.05.


 


“Indemnifying
Party” has the meaning set forth in Section 8.05.


 


“Independent
Accountant” has the meaning set forth in Section 2.16(c)(iii).


 


“Insurance
Policies” has the meaning set forth in Section 3.16.


 


“Intellectual
Property” means all intellectual property and industrial property rights and assets, and all rights, interests, and
protections that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant
to the Laws of any jurisdiction throughout the world, whether registered or unregistered, including any and all: (a) trademarks,
service marks, trade names, brand names, logos, trade dress, design rights, and other similar designations of source, sponsorship,
association, or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications,
and renewals for, any of the foregoing; (b) internet domain names, whether or not trademarks, registered in any top-level domain
by any authorized private registrar or Governmental Authority, web addresses, web pages, websites and related content, accounts
with Twitter, Facebook and other social media companies and the content found thereon and related thereto, and URLs; (c) works
of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights, author, performer,
moral, and neighboring rights, and all registrations, applications for registration, and renewals of such copyrights; (d) inventions,
discoveries, trade secrets, business and technical information and know-how, databases, data collections, and other confidential
and proprietary information and all rights therein; (e) patents (including all reissues, divisionals, provisionals, continuations
and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent
rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty
patents, and patent utility models); (f) software and firmware, including data files, source code, object code, application programming
interfaces, architecture, files, records, schematics, computerized databases, specifications, and documentation related to such
software and firmware; and (g) semiconductor chips and mask works.


 




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“Interim
Balance Sheet” has the meaning set forth in Section 3.06.


 


“Interim
Balance Sheet Date” has the meaning set forth in Section 3.06.


 


“Interim
Financial Statements” has the meaning set forth in Section 3.06.


 


“Key
Employees” means McKinley J. Oswald, Jason Matheny, Colby Allen, and JJ Oswald.


 


“Knowledge”
means, when used with respect to the Company, the actual or constructive knowledge of any Shareholder or any director or officer
of the Company.


 


“Law”
means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, rule of law, Governmental Order,
or other requirement of any Governmental Authority.


 


“Liabilities”
means any liabilities, obligations, or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute
or contingent, accrued or unaccrued, matured or unmatured, or otherwise.


 


“Losses”
means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs, or expenses of
whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and
the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include (i) punitive
damages, except in the case of fraud or to the extent actually awarded to a Governmental Authority or other third party, (ii)
any incidental, indirect, exemplary, or other special damages, or (iii) damages based on any multiple; provided, further,
however, that, in the case of fraud, “Losses” shall include each of the items itemized in the immediately preceding
proviso.


 


“Material
Contracts” has the meaning set forth in Section 3.09(a).


 


“Material
Customers” has the meaning set forth in Section 3.15(a).


 


“Material
Suppliers” has the meaning set forth in Section 3.15(b).


 


“Merger”
has the meaning set forth in the recitals to this Agreement.


 


“Merger
Consideration” the sum of (a) the Closing Merger Consideration plus (b) the portion, if any, of the Escrow Shares
that the Shareholders become entitled to receive pursuant to the terms of this Agreement and the Escrow Agreement.


 


“Merger
Consideration Certificate” means a certificate signed by the Company and the Shareholders that sets forth, as of the
Closing Date and immediately prior to the Effective Time, (a) the names and addresses of all Shareholders and the number of Company
Shares held by such Shareholders; (b) a calculation of the Closing Merger Consideration; (c) each Shareholder’s Pro Rata
Share (as a percentage interest and the interest in dollars in respect of the Net Cash Consideration and number of shares in respect
of the Closing Parent Shares) of the Closing Merger Consideration; and (d) each Shareholder’s Pro Rata Share (as a percentage
interest and the interest in number of shares) of the Escrow Shares. The Parent will be entitled to rely conclusively on the amounts
and other information set forth in the Merger Consideration Certificate.


 




    	14



    	 



    

 


“Merger
Sub No. 1” has the meaning set forth in the preamble to this Agreement.


 


“Merger
Sub No. 2” has the meaning set forth in the preamble to this Agreement.


 


“Multiemployer
Plan” has the meaning set forth in Section 3.20(c).


 


“Net
Cash Consideration” means the sum of the Cash Consideration.


 


“Organizational
Documents” means (a) in the case of a Person that is a corporation, its articles or certificate of incorporation and
its by-laws, regulations, or similar governing instruments required by the laws of its jurisdiction of formation or organization;
(b) in the case of a Person that is a partnership, its articles or certificate of partnership, formation, or association and its
partnership agreement (in each case, limited, limited liability, general, or otherwise); (c) in the case of a Person that is a
limited liability company, its articles or certificate of formation or organization and its limited liability company agreement
or operating agreement; and (d) in the case of a Person that is none of a corporation, partnership (limited, limited liability,
general, or otherwise), limited liability company, or natural person, its governing instruments as required or contemplated by
the laws of its jurisdiction of organization.


 


“Parent”
has the meaning set forth in the preamble to this Agreement.


 


“Parent
Common Stock” means the common stock, par value $0.0001 per share, of the Parent.


 


“Parent
Material Adverse Effect” means any event, occurrence, fact, condition, or change that is, or could reasonably be expected
to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial
or otherwise), or assets of the Parent or (b) the ability of the Parent to consummate the transactions contemplated hereby on
a timely basis; provided, however, that “Parent Material Adverse Effect” shall not include any event, occurrence,
fact, condition, or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions;
(ii) conditions generally affecting the industries in which the Parent operates; (iii) any changes in financial or securities
markets in general; (iv) acts of war (whether or not declared), armed hostilities, or terrorism, or the escalation or worsening
thereof; (v) any action required or permitted by this Agreement; (vi) any changes in applicable Laws or accounting rules, including
GAAP; or (vii) the public announcement, pendency, or completion of the transactions contemplated by this Agreement; provided,
further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i) through (iv) immediately
above shall be taken into account in determining whether a Parent Material Adverse Effect has occurred or could reasonably be
expected to occur to the extent that such event, occurrence, fact, condition, or change has a disproportionate effect on the Parent
compared to other participants in the industries in which the Parent conducts its businesses.


 


“Parent
Indemnitees” has the meaning set forth in Section 8.02.


 




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“Parent
Public Offering” means the sale and issuance, no earlier than three Business Days prior to the Closing Date, in a public
offering pursuant to the Registration Statement, of shares of Parent Common Stock.


 


“Parent
SEC Reports” has the meaning set forth in Section 4.07(b).


 


“Parent
Share Price” means the price per share of Parent Common Stock as of the Closing.


 


“Parent
Shares” means the number of shares of Parent Common Stock obtained by dividing $10,000,000 by the Parent Share Price.


 


“Permits”
means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights,
in each case, obtained, or required to be obtained, from Governmental Authorities.


 


“Permitted
Encumbrances” has the meaning set forth in Section 3.10(a).


 


“Person”
means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated
organization, trust, association, or other entity.


 


“Post-Closing
Tax Period” means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning
before and ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.


 


“Post-Closing
Taxes” means Taxes of the Company for any Post-Closing Tax Period.


 


“Pre-Closing
Tax Period” means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning
on or before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.


 


“Pre-Closing
Taxes” means Taxes of the Company for any Pre-Closing Tax Period.


 


“Pro
Rata Share” means, with respect to any Shareholder, such Shareholder’s ownership interest in the Company as of
immediately prior to the Effective Time, determined by dividing (a) the number of Company Shares owned of record by such Shareholder
as of immediately prior to the Effective time, by (b) the aggregate number of Company Shares issued and outstanding immediately
prior to the Effective Time.


 


“Qualified
Benefit Plan” has the meaning set forth in Section 3.20(c).


 


“Real
Property” means the real property owned, leased, or subleased by the Company, together with all buildings, structures,
and facilities located thereon.


 


“Registration
Statement” means that certain Registration Statement on Form S-1, file number 333-226840, filed by the Parent with the
Commission on August 14, 2018 in connection with the Parent Public Offering, and all amendments thereto.


 




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“Release”
means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, abandonment, disposing, or allowing to escape or migrate into or through the environment (including ambient
air, surface water, groundwater, land surface, or subsurface strata or within any building, structure, facility, or fixture).


 


“Representative”
means, with respect to any Person, any and all directors, managing members, managers, officers, employees, consultants, financial
advisors, counsel, accountants, and other agents of such Person.


 


“Resolution
Period” has the meaning set forth in Section 2.16(c)(ii).


 


“Restricted
Business” means any business that would be directly or indirectly competitive with the Company as of the Closing Date.


 


“Restricted
Period” has the meaning set forth in Section 5.06(a).


 


“Review
Period” has the meaning set forth in Section 2.16(c)(i).


 


“Securities
Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission
promulgated thereunder.


 


“Shareholder”
and “Shareholders” have the respective meanings set forth in the preamble to this Agreement.


 


“Shareholder
Indemnitees” has the meaning set forth in Section 8.03.


 


“Shareholders’
Representative” means McKinley J. Oswald, an individual.


 


“Side
Letter” means that certain letter by and among the parties hereto, dated the date of this Agreement.


 


“Statement
of Objections” has the meaning set forth in Section 2.16(c)(ii).


 


“Straddle
Period” has the meaning set forth in Section 6.05.


 


“Surviving
Entity” has the meaning set forth in Section 2.01.


 


“Taxes”
means all national or multinational, federal, state, local, foreign, and other taxes, fees, tariffs, stamp taxes, duties (including
any customs duties, tariffs, fees and processing charges), charges, levies, or assessments imposed by any Governmental Authority,
including those characterized as income, corporation, capital gains, excise, gross receipts, ad valorem, sales and use, goods
and services, harmonized sales, use, employment, franchise, profits, gains, property (real or personal), transfer, payroll, social
security contributions, Medicare, Medicaid, license, severance, occupation, premium, windfall profits, environmental, capital
stock, withholding, unemployment, disability, registration, value added, estimated, alternative or add on minimum, or intangibles
taxes, of any kind whatsoever (whether payable directly or by withholding), whether disputed or not, together with any interest
and any penalties, fines, additions to tax, or additional amounts imposed by any Governmental Authority with respect thereto,
whether disputed or not, and any liability for the payment of any amounts of the type described above as a result of being a member
of an affiliated, consolidated, combined, or unitary group for any period, as a result of a tax sharing, tax allocation, or tax
indemnification contract, or as a result of being liable for another Person’s taxes, as a transferee or successor, by contract
or otherwise.


 




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“Taxing
Authority” means the United States Internal Revenue Service and any other Governmental Authority responsible for the
administration of any Tax.


 


“Tax
Return” means any return, declaration, report, claim for refund, declaration of estimated Tax, information return or
statement, or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof,
and including, where permitted or required, combined, consolidated, or unitary returns for any group of entities that includes
the Company or any of its Affiliates.


 


“Territory”
means each state and territory of the United States of America.


 


“Third-party
Claim” has the meaning set forth in Section 8.05(a).


 


“Third-party
Payment” has the meaning set forth in Section 8.05(f).


 


“Undisputed
Amounts” has the meaning set forth in Section 2.16(c)(iii).


 


“Union”
has the meaning set forth in Section 3.21(b).


 


“URBCA”
shall mean the Utah Revised Business Corporation Act, as amended.


 


“URULLCA”
shall mean the Utah Revised Uniform Limited Liability Company Act, as amended.


 


“Utah
Division” means the Division of Corporations and Commercial Code of the Utah Department of Commerce.


 


“WARN
Act” means the federal Worker Adjustment and Retraining Notification Act of 1988, and similar state, local and foreign
laws related to plant closings, relocations, mass layoffs, and employment losses.


 


ARTICLE
II

the merger


 


Section
2.01 The Merger. On the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable
provisions of the URBCA and the URULLCA, at the Effective Time, (a) the Company shall merge with and into Merger Sub No.
1 with the Company surviving the “first step” of the Merger as a wholly-owned subsidiary of the Parent (and the separate
corporate existence of Merger Sub No. 1 shall cease) and, immediately thereafter, the Company shall merge with and into Merger
Sub No. 2, with Merger Sub No. 2 surviving the “second step” of the Merger such that (b) upon the conclusion of the
“second step” of the Merger, the separate corporate existence of the Company shall cease and Merger Sub No. 2 shall
continue its limited liability company existence under Utah law as the Surviving Entity in the Merger (sometimes referred to herein
as the “Surviving Entity”) and as a wholly-owned subsidiary of the Parent. The Merger shall have the effects
set forth in the applicable provisions of the URBCA and the URULLCA.


 




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Section
2.02 Closing. Subject to the conditions of this Agreement, the closing of the transactions contemplated by this Agreement,
including the Merger (the “Closing”), shall occur by electronic exchange of documents no later than three Business
Days after the last of the conditions to Closing set forth in ARTICLE VII has been satisfied or waived (other than conditions,
which, by their nature, are to be satisfied on the Closing Date) (the date on which the Closing takes place being the “Closing
Date”) and shall be deemed effective as of the Effective Time.


 


Section
2.03 Closing Deliverables. 


 


(a)
At or prior to the Closing, the Company shall deliver to the Parent the following:


 


(i)
the Escrow Agreement duly executed by the Shareholders’ Representative;


 


(ii)
resignations of the directors and officers of the Company pursuant to Section 5.07;


 


(iii)
a certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set
forth in Section 7.01(a) and Section 7.01(b) has been satisfied;


 


(iv)
a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that (A) attached thereto
are true and complete copies of all resolutions adopted by the Company Board authorizing the execution, delivery, and performance
of this Agreement and the consummation of the transactions contemplated hereby and (B) all such resolutions are in full force
and effect and are all the resolutions adopted in connection with the transactions contemplated hereby;


 


(v)
a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying the names and signatures
of the officers of the Company authorized to sign this Agreement and the other documents to be delivered hereunder;


 


(vi)
a good standing certificate (or its equivalent) for the Company from the Utah Division;


 


(vii)
the Merger Consideration Certificate;


 


(viii)
a certificate from the Company, dated as of the Closing Date, certifying to the effect that either (A) no interest in the Company
is a U.S. real property interest or (B) the Corporation is not a foreign corporation, foreign partnership, foreign trust, or foreign
estate (such certificate in the form required by Treasury Regulation Section 1.897-2(h) and 1.1445-3(c));


 




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(ix)
the “lock-up” agreements, each substantially in the form of Exhibit B hereto, duly executed by each of the
Shareholders; and


 


(x)
such other documents or instruments as the Parent reasonably requests and are reasonably necessary to consummate the transactions
contemplated by this Agreement.


 


(b)
At the Closing, the Parent shall deliver:


 


(i)
to each Shareholder (and subject to Section 2.09(b)):


 


(A)
payment by wire transfer of immediately available funds of the amount of such Shareholder’s Pro Rata Share of the Net Cash
Consideration payable pursuant to Section 2.08(a) and in accordance with the Merger Consideration Certificate; and


 


(B)
stock certificates representing such Shareholder’s Pro Rata Share of Closing Parent Shares issuable pursuant to Section
2.08(a) and in accordance with the Merger Consideration Certificate;


 


(ii)
to the Escrow Agent, stock certificate(s) representing the Escrow Shares;


 


(iii)
to the Company:


 


(A)
the Escrow Agreement duly executed by the Parent;


 


(B)
a certificate, dated the Closing Date and signed by a duly authorized officer of the Parent, that each of the conditions set forth
in Section 7.02(a) and Section 7.02(b) has been satisfied;


 


(C)
a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Parent, Merger Sub No. 1, and Merger Sub
No. 2 certifying that attached thereto are true and complete copies of all resolutions adopted by the Boards of Directors or Board
of Managers, as relevant, of Parent, Merger Sub No. 1, and Merger Sub. No. 2 authorizing the execution, delivery, and performance
of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force
and effect and are all the resolutions adopted in connection with the transactions contemplated hereby;


 


(D)
a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Parent, Merger Sub No. 1, and Merger Sub
No. 2 certifying the names and signatures of the officers or managers, as relevant, of the Parent, Merger Sub No. 1, and Merger
Sub No. 2 authorized to sign this Agreement and the other documents to be delivered hereunder; and


 




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(E)
such other documents or instruments as the Company reasonably requests and are reasonably necessary to consummate the transactions
contemplated by this Agreement.


 


Section
2.04 Effective Time. Subject to the provisions of this Agreement, on the Closing Date, the Company, the Parent, Merger Sub No.
1, and Merger Sub No. 2 shall cause the “first step” Articles of Merger (the “First Step Articles of Merger”)
and the “second step” Articles of Merger (the “Second Step Articles of Merger”; collectively, with
the “First Step Articles of Merger, the “Articles of Merger”) to be executed and filed with the Utah Division
in accordance with the relevant provisions of the URBCA and the URULLCA, as applicable, and shall make all other filings
or recordings required by the URBCA and the URULLCA in connection with the Merger. The Merger shall become effective at
such time as the Second Step Articles of Merger have been duly filed with the Utah Division in accordance with the URULLCA
or at such later date or time as may be agreed by the Company and the Parent in writing and specified in the Second Step Articles
of Merger in accordance with the URULLCA (the effective time of the Merger being hereinafter referred to as the “Effective
Time”).


 


Section
2.05 Effects of the Merger. The Merger shall have the effects set forth herein and in the applicable provisions of the URBCA
and the URULLCA. Without limiting the generality of the foregoing, from and after the Effective Time, all property, rights,
privileges, immunities, powers, franchises, licenses, and authority of the Company and Merger Sub No. 2 shall vest in the Surviving
Entity, and all debts, liabilities, obligations, restrictions, and duties of each of the Company and Merger Sub No. 2 shall become
the debts, liabilities, obligations, restrictions, and duties of the Surviving Entity.


 


Section
2.06 Articles of Organization; Operating Agreement. At the Effective Time, (a) the Articles of Organization of the Surviving
Entity shall be amended as a result of the Merger to change the name of the Surviving Entity to a name virtually identical to
the name in the Company’s Articles of Incorporation as in effect immediately prior to the Effective Time, and such amended
Articles of Organization shall remain in effect until thereafter amended in accordance with the terms thereof or as provided by
applicable Law and (b) the Operating Agreement of the Surviving Entity shall remain in effect, except that the name of the Surviving
Entity shall be virtually identical to the name of the Company and such amended Operating Agreement shall remain in effect until
thereafter amended in accordance with the terms thereof, the Articles of Organization of the Surviving Entity, or as provided
by applicable Law.


 


Section
2.07 Directors and Officers. From and after the Effective Time, the directors and officers of the Surviving Entity shall be
as set forth on Exhibit C hereto until their respective successors have been duly elected or appointed and qualified or
until their respective earlier death, resignation, or removal in accordance with the Articles of Organization and Operating Agreement
of the Surviving Entity.


 


Section
2.08 Effect of the Merger on Capital Stock of the Company and Merger Sub No. 1 and the Equity of Merger Sub No. 2. At the
Effective Time, as a result of the Merger and without any action on the part of the Parent, Merger Sub No. 1, Merger Sub No. 2,
the Company, or any Shareholder:


 




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(a)
Conversion of Company Shares. Each Company Share issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive a proportionate share of the Closing Merger Consideration, together with any amounts that
may become payable in respect of such Company Share in the future from the Escrow Shares as provided in this Agreement and the
Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein. No fractional Parent
Common Stock shall be issued as a result of the Merger. If any fractional Parent Common Stock would otherwise result from the
Merger, the number of securities required to be issued to the applicable Shareholder shall be rounded up to the nearest whole
number of Parent Shares.


 


(b)
Conversion of Merger Sub No. 1 Capital Stock and Merger Sub No. 2 Membership Units. Each share of common stock, par value
$0.001 per share, of Merger Sub No. 1 issued and outstanding immediately prior to the filing of the First Step Articles of Merger
shall be converted into and become one newly issued, fully paid, and non-assessable share of common stock of the Company and,
immediately thereafter, in connection with the filing of the Second Step Articles of Merger, such remaining issued and outstanding
share shall be converted into and become one newly issued, fully paid, and non-assessable membership unit of the Surviving Entity
(Merger Sub No. 2).


 


(c)
Treasury Stock. Any Company Shares held by the Company as treasury shares or by the Parent immediately prior to the filing
of the First Step Articles of Merger shall automatically be canceled and cease to exist as upon such filing and no consideration
shall be delivered or deliverable therefor.


 


Section
2.09 Surrender and Payment. 


 


(a)
At the Effective Time, all Company Shares outstanding immediately prior to the Effective Time shall automatically be cancelled
and retired and shall cease to exist and each Shareholder (and any other holder of a certificate formerly representing any Company
Shares) shall cease to have any rights as a shareholder of the Company.


 


(b)
The Parent shall, no the later than (i) the Closing Date or (ii) the second Business Day following Parent’s or Parent’s
counsel’s receipt from a Shareholder of a stock certificate or certificates representing such Shareholder’s Company
Shares, together with any other customary documents that the Parent may reasonably require in connection therewith, pay to such
Shareholder such Shareholder’s Pro Rata Share of the Closing Merger Consideration not previously paid to such shareholder
with respect to the Company Shares represented by the stock certificate(s) so delivered, and such stock certificate(s) shall forthwith
be cancelled. No interest shall be paid or shall accrue on any Merger Consideration payable upon surrender of any stock certificate
representing Company Shares. After the Closing and until surrendered in accordance with this Section 2.09(b), each outstanding
stock certificate that, prior to the Effective Time represented Company Shares, shall be deemed from and after the Effective Time,
for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.08(a).


 




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Section
2.10 Escrow Shares. In accordance with the Escrow Agreement, at the Closing, the Parent shall deposit, or cause to be deposited,
the Escrow Shares with the Escrow Agent, to be held for the purpose of securing in part the indemnification obligations of the
Shareholders set forth in this Agreement. The Shareholders acknowledge that the Escrow Shares do not constitute the Parent’s
sole or primary source of satisfaction of the Shareholders’ indemnification obligations hereunder. Further, in the event
that the Parent utilizes the Escrow Shares in satisfaction of any or all of the Shareholders’ indemnifications obligations,
for indemnification purposes only, each Escrow Share so utilized shall be valued at the Parent Share Price.


 


Section
2.11 No Further Ownership Rights in Company Shares. All Merger Consideration paid or payable
in accordance with the terms hereof shall be deemed to have been paid or payable in full satisfaction of all rights pertaining
to the Company Shares formerly represented by stock certificates formerly representing Company Shares, and from and after the
Effective Time, there shall be no further registration of transfers of Company Shares or membership units on the equity transfer
books of the Surviving Entity. 


 


Section
2.12 Adjustments. Without limiting the other provisions of this Agreement, if at any time during the period between the date
of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of the Company shall occur, including
by reason of any reclassification, recapitalization, stock split (including reverse stock split), or combination, exchange, or
readjustment of shares, or any stock dividend or distribution paid in stock, the Merger Consideration and any other amounts payable
pursuant to this Agreement shall be appropriately adjusted to reflect such change.


 


Section
2.13 Withholding Rights. The Parent shall be entitled to deduct and withhold from the consideration
otherwise payable to any Person pursuant to this ARTICLE
II such amounts as may be required to be deducted and withheld with respect
to the making of such payment under any provision of Tax Law. To the extent that amounts are so deducted and withheld by the Parent,
and actually paid by the Parent to the recipient thereof pursuant to such applicable Tax Law, such amounts shall be treated for
all purposes of this Agreement as having been paid to the Person in respect of whom the Parent made such deduction and withholding.


 


Section
2.14 Reserved.


 


Section
2.15 Waiver of Dissenters’ Rights. Each Shareholder hereby waives any rights of dissent or other similar rights that
such Shareholder may have as a result of, or otherwise in connection with, the Merger or any of the other transactions contemplated
by this Agreement.


 


ARTICLE
III

Representations and warranties
of THE company and the sHAREholders


 


Except
as set forth in the correspondingly numbered Schedule that relates to such Section or in another Schedule to the extent that it
is reasonably apparent on the face of such disclosure that such disclosure is applicable to such Section, the Company and the
Shareholders, jointly and severally (except in respect of Section 3.01 and Section 3.26, which representations and
warranties are made by each of the Shareholders, severally and not jointly, as to such Shareholder and not by the Company), represent
and warrant to the Parent, Merger Sub No. 1, and Merger Sub No. 2 that the statements contained in this ARTICLE III are
true and correct as of the date hereof.


 




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Section
3.01 Authority of the Shareholders; No Conflicts or Consents in Respect of the Shareholders.


 


(a)
Each Shareholder has full capacity, power, and authority to enter into this Agreement and to carry out such Shareholder’s
obligations hereunder. This Agreement has been duly executed and delivered by each Shareholder and (assuming due authorization,
execution, and delivery by each other party hereto) this Agreement constitutes a legal, valid, and binding obligation of each
Shareholder enforceable against such Shareholder in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, and other similar laws affecting creditors’ rights generally and by general principles
of equity.


 


(b)
The execution, delivery, and performance by each Shareholder of this Agreement and the consummation of the transactions contemplated
hereby, do not and will not: (i) conflict with or result in a violation or breach of, or default under, any provision of the Organizational
Documents of any Shareholder (ii) conflict with or result in a violation or breach of any provision of any Law applicable to any
Shareholder; or (iii) require the consent of, notice to, or other action by, any Person under, conflict with, result in a violation
or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default
under, result in the acceleration of, or create in any party the right to accelerate, terminate, modify, or cancel, any Contract
to which any Shareholder is a party or by which any Shareholder is bound or to which any Company Shares held by such Shareholder
is subject. No consent, approval, Permit, Governmental Order, declaration, or filing with, or notice to, any Governmental Authority
is required by or with respect to each Shareholder in connection with the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.


 


Section
3.02 Organization and Qualification of the Company; Authority of the Company.


 


(a)
The Company is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Utah and has
full corporate power and authority to own, operate, or lease the properties and assets now owned, operated, or leased by it and
to carry on its business as it has been and is currently conducted. Schedule 3.02(a) sets forth each jurisdiction in which
the Company is licensed or qualified to do business, and the Company is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or the operation of its business as currently conducted
makes such licensing or qualification necessary, except where the failure to be so licensed, qualified, or in good standing would
not have a Company Material Adverse Effect.


 




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(b)
The Company has full corporate power and authority to enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery, and performance by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part
of the Company and no other corporate proceedings on the part of the Company are necessary to authorize the execution, delivery,
and performance of this Agreement or to consummate the Merger and the other transactions contemplated hereby. The affirmative
vote or consent of the Shareholders representing a majority of the outstanding Company Shares is the only vote or consent of the
holders of any class or series of the Company’s capital stock required to approve this Agreement and the Merger. This Agreement
has been duly executed and delivered by the Company and (assuming due authorization, execution, and delivery by each other party
hereto) this Agreement constitutes a legal, valid, and binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar laws affecting
creditors’ rights generally and by general principles of equity.


 


(c)
The Company Board, by resolutions duly adopted by unanimous written consent, has (i) determined that this Agreement and the transactions
contemplated hereby, including the Merger, are fair to, and in the best interests of, the Shareholders, (ii) approved and declared
advisable this Agreement and the transactions contemplated hereby, including the Merger, in accordance with the applicable provisions
of the URBCA, (iii) directed that this Agreement and the Merger be submitted to the Shareholders for their approval, and (iv)
recommended that the Shareholders approve this Agreement and the Merger.


 


Section
3.03 Capitalization.


 


(a)
The authorized capital stock of the Company consists of 150,000 Company Shares, of which 122,413 Company Shares are issued and
outstanding. All of the issued and outstanding Company Shares are (i) duly authorized, validly issued, fully paid, and non-assessable;
(ii) not subject to any preemptive rights created by statute, the Organizational Documents of the Company, or any agreement to
which the Company or any Shareholder is a party; (iii) free and clear of any Encumbrances (other than restrictions on transfer
imposed by state and federal securities Laws); and (iv) owned of record and beneficially by the Shareholders in the respective
amounts set forth in Schedule 3.03(a).


 


(b)
All of the issued and outstanding Company Shares were issued in compliance with applicable Laws. The issued and outstanding Company
Shares were not issued in violation of the Organizational Documents of the Company or any other agreement, arrangement, or commitment
to which any Shareholder or the Company is a party.


 


(c)
No subscription, warrant, option, convertible or exchangeable security, or other right (contingent or otherwise) to purchase or
otherwise acquire equity securities of the Company is issued and outstanding. There is no commitment by the Company to issue shares,
subscriptions, warrants, options, convertible or exchangeable securities, or other such rights or to distribute to holders of
any of its equity securities any evidence of indebtedness or asset, to repurchase or redeem any securities of the Company, or
to grant, any warrant, option, convertible or exchangeable security, or other such right. There are no declared or accrued unpaid
dividends with respect to any Company Shares. Except as set forth on Schedule 3.03(c), there are no voting trusts, shareholder
agreements, proxies, or other agreements or understandings in effect with respect to the voting or transfer of any of the Company
Shares. No outstanding Company Shares are subject to vesting or forfeiture rights or repurchase by the Company. There are no outstanding
or authorized stock appreciation, dividend equivalent, phantom stock, profit participation, or other similar rights with respect
to the Company or any of its securities.


 




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(d)
All distributions, dividends, repurchases, and redemptions of the capital stock (or other equity interests) of the Company were
undertaken in compliance with the Organizational Documents of the Company then in effect, any agreement to which the Company then
was a party, and in compliance with applicable Law.


 


(e)
There are no shares of treasury stock held by the Company.


 


Section
3.04 No Subsidiaries. The Company does not
own, have any interest in any shares or other securities of, or have an ownership interest in, any other Person.


 


Section
3.05 No Conflicts or Consents in Respect of the Company. The execution, delivery,
and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby, including the Merger,
do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the Organizational
Documents of the Company; (b) conflict with or result in a violation or breach of any provision of any Law applicable to the Company;
(c) except as set forth in Schedule 3.05, require the consent of, notice to, or other action by, any Person under, conflict
with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both,
would constitute a default under, result in the acceleration of, or create in any party the right to accelerate, terminate, modify,
or cancel, any Contract to which the Company is a party or by which the Company is bound or to which any of its properties and
assets are subject (including any Material Contract) or any Permit affecting the properties, assets, or business of the Company;
or (d) result in the creation or imposition of any Encumbrance other than Permitted Encumbrances on any properties or assets of
the Company. No consent, approval, Permit, Governmental Order, declaration, or filing with, or notice to, any Governmental Authority
is required by or with respect to the Company in connection with the execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby, except for the filing of the Articles of Merger with the Utah Division.


 


Section
3.06 Financial Statements; Indebtedness.


 


(a)
Complete copies of the Company’s audited financial statements, consisting of (i) the balance sheets of the Company as at
December 31, 2016 and December 31, 2017 and the related statements of income and retained earnings, shareholders’ equity,
and cash flow for the years then ended (the “Annual Financial Statements”) and (ii) the balance sheets of the
Company as at June 30, 2018 and June 30, 2017, and the related statements of income and retained earnings, shareholders’
equity, and cash flow for the three- and six-month periods then ended (the “Interim Financial Statements”;
and, together with the Annual Financial Statements, the “Financial Statements”), have been delivered to the
Parent. The Annual 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, in the case of all of the Interim Financial Statements, the absence of notes. The
Financial Statements are based on the books and records of the Company and fairly present in all material respects the financial
condition of the Company as of the respective dates they were prepared and the results of the operations of the Company for the
periods indicated. The balance sheet of the Company as at June 30, 2018 is referred to herein as the “Interim Balance
Sheet” and the date thereof as the “Interim Balance Sheet Date.” There are no off-balance sheet transactions,
arrangements, or obligations of or involving the Company.


 






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(b)
The Company makes and keeps accurate financial books and records reflecting its assets and maintains commercially reasonable internal
accounting controls that provide reasonable assurance that (i) transactions are executed with management’s authorization;
(ii) transactions are recorded to maintain accountability for the Company’s assets; (iii) access to the assets of the Company
is permitted only in accordance with management’s authorization; and (iv) accounts are recorded accurately in all material
respects and commercially reasonable procedures are implemented to effect the collection thereof on a current and timely basis.


 


(c)
The financial books and records of the Company are sufficient such that the Annual Financial Statements can be audited without
a scope limitation by an independent certified public accounting firm that is registered under the Public Company Accounting Oversight
Board, which audited Annual Financial Statements and unaudited Interim Financial Statements, the Shareholders understand are to
be included in the Registration Statement and thereafter are to be consolidated into the Parent’s periodic reports to be
filed under the Exchange Act.


 


(d)
Schedule 3.06(d) sets forth a true and
complete list of all Indebtedness of the Company and provides (i) the name(s) of the current lender(s) and (ii) the outstanding
principal balance(s) and all accrued and unpaid interest as of the date hereof. As of the Closing, there will be no outstanding
Indebtedness of the Company arising from obligations created by or on behalf of the Company or any Shareholder prior to the Closing,
other than Indebtedness that was incurred in the ordinary course of business consistent with past practice since the Interim Balance
Sheet Date and that is not, individually or in the aggregate, material in amount.


 


Section
3.07 No Undisclosed Liabilities. Except as set forth on Schedule 3.07, the Company
has no Liabilities required by GAAP to be set forth on a balance sheet, except (a) those that are adequately reflected or reserved
against in the Interim Balance Sheet as of the Interim Balance Sheet Date, (b) those that have been incurred in the ordinary course
of business consistent with past practice since the Interim Balance Sheet Date and that are not, individually or in the aggregate,
material in amount, or (c) Liabilities arising under any Material Contracts identified on Schedule 3.09(a), Schedule 3.10(b) or
Schedule 3.12(b), or under any other Contract of the Company that is not a Material Contract (other than Liabilities for breach
of such Contract occurring prior to the Closing).


 






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Section
3.08 Absence of Certain Changes. Since the
Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been,
with respect to the Company, any:


 


(a)
event, occurrence, or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect;


 


(b)
amendment of the Organizational Documents of the Company (except for the amendment and restatement of its Articles of Incorporation
filed on November 8, 2018);


 


(c)
split, combination, or reclassification of any shares of its capital stock;


 


(d)
issuance, sale, or other disposition of, or creation of any Encumbrance on, any shares of its capital stock, or grant of any options,
warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any shares of its capital stock;


 


(e)
declaration or payment of any dividends or distributions on or in respect of any shares of its capital stock or redemption, purchase,
or acquisition of any shares of its capital stock;


 


(f)
material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed
in the notes to the Financial Statements;


 


(g)
entry into any Contract that is or, if it were in effect as of the date of this Agreement, would be a Material Contract;


 


(h)
incurrence, assumption, or guarantee of any Indebtedness except unsecured current obligations and Liabilities incurred in the
ordinary course of business consistent with past practice;


 


(i)
actual or accrual for any transfer, assignment, sale, or other disposition of any of the assets shown or reflected in the Interim
Balance Sheet (other than sales of inventory in the ordinary course of business consistent with past practice) or cancellation
of any debts or entitlements;


 


(j)
transfer, assignment, or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual
Property or Company IP Agreements, other than customer Contracts entered into in the ordinary course of business;


 


(k)
material damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000;


 


(l)
any capital investment in, or any loan to, any other Person, other than accounts receivable arising in the ordinary course of
business;


 


(m)
acceleration, termination, or cancellation of, or material modification to, any Material Contract to which the Company is a party
or by which it is bound;


 


(n)
any material capital expenditures, other than base and sustaining capital expenditures in the ordinary course of business;


 






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(o)
imposition of any Encumbrance, other than a Permitted Encumbrance, upon any of the Company’s properties, capital stock,
or assets, tangible or intangible;


 


(p)
(i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension, or other compensation
or benefits in respect of its current or former employees, officers, directors, independent contractors, or consultants, other
than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee
or any termination of any employees for which the aggregate costs and expenses exceed $10,000, or (iii) action to accelerate the
vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor,
or consultant;


 


(q)
hiring or promoting any person as or to an officer or any key employee below officer except to fill a vacancy in the ordinary
course of business;


 


(r)
adoption, modification, or termination (except for the termination of the Company’s 2018 Stock Incentive Plan) of any: (i)
employment, severance, retention, or other agreement with any current or former employee, officer, director, independent contractor,
or consultant, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written
or oral;


 


(s)
any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its shareholders or current or former
directors, officers, and employees;


 


(t)
entry into a new line of business or abandonment or discontinuance of existing lines of business;


 


(u)
except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation, or dissolution or filing of
a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition
against it under any similar Law;


 


(v)
purchase, lease, or other acquisition or any amendment, modification, or exchange of the right to own, use, or lease (A) any personal
property or assets for an amount in excess of $10,000, individually (in the case of a personal property lease, per annum) or $25,000
in the aggregate in a series of related transactions (in the case of a personal property lease, for the entire term of the lease,
not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with
past practice or (B) any real property;


 


(w)
acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets, stock, or other equity of,
or by any other manner, any business or any Person or any division thereof;


 


(x)
action by the Company to: (i) make, change, or rescind any Tax election, (ii) amend any Tax Return, or (iii) take any position
on any Tax Return, take any action, omit to take any action, or enter into any other transaction that, in any case, would have
the effect of increasing the Tax liability or reducing any Tax asset of the Parent in respect of any Post-Closing Tax Period;
or


 


(y)
any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.


 






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Section
3.09 Material Contracts.


 


(a)
Schedule 3.09(a) lists each of the following Contracts to which the Company is a party as of the date of this Agreement
or by which its properties or assets are subject as of the date of this Agreement (such Contracts, collectively with all Contracts
concerning the occupancy, management, or operation of any Real Property required to be listed in Schedule 3.10(b) and all
Company IP Agreements required to be listed in Schedule 3.12(b), the “Material Contracts”):


 


(i)
each Contract of the Company involving aggregate consideration in excess of $20,000 and which, in each case, cannot be cancelled
by the Company without penalty or without more than 90 days’ notice;


 


(ii)
all Contracts that require the Company to purchase its total requirements of any product or service from a third party or that
contain “take or pay” provisions;


 


(iii)
all Contracts that provide for the indemnification by the Company of any Person or the assumption of any Tax, environmental, or
other Liability of any Person;


 


(iv)
all Contracts that relate to the acquisition or disposition of any business, equity, or substantially all of the assets of any
other Person (whether by merger, sale of stock or other equity interests, sale of assets, or otherwise);


 


(v)
all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing,
consulting, and advertising Contracts to which the Company is a party;


 


(vi)
all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company
is a party and that are not cancellable without material penalty or without more than 90 days’ notice;


 


(vii)
all Contracts relating to Indebtedness of the Company;


 


(viii)
all Contracts with any Governmental Authority to which the Company is a party (“Government Contracts”);


 


(ix)
all Contracts that limit or purport to limit the ability of the Company to compete in any line of business or with any Person
or in any geographic area or during any period of time;


 






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(x)
any Contract to which the Company is a party that provides for any joint venture, partnership, or similar arrangement by the Company;


 


(xi)
all Contracts between or among the Company, on the one hand, and any Shareholder or any Affiliate of any Shareholder, on the other
hand;


 


(xii)
all collective bargaining agreements or Contracts with any Union to which the Company is a party; and


 


(xiii)
any other Contract that is material to the Company and not previously required to be disclosed pursuant to this Section 3.09(a).


 


(b)
Each Material Contract is valid and binding on the Company in accordance with its terms and, to the Knowledge of the Company,
is in full force and effect. None of the Company or, to the Company’s Knowledge, any other party thereto is in breach of
or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any
notice of any intention to terminate, any Material Contract. To the Company’s Knowledge, no event or circumstance has occurred
that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination
thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder.
Complete and correct copies of each Material Contract (including all modifications, amendments, and supplements thereto and waivers
thereunder) have been made available to the Parent.


 


Section
3.10 Title to Assets; No Real Property.


 


(a)
The Company has good and valid (and, in the case of owned Real Property, good and marketable fee simple) title to, or a valid
leasehold interest in, all Real Property and personal property and other assets reflected in the Interim Financial Statements
or acquired after the Interim Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary
course of business consistent with past practice since the Interim Balance Sheet Date. All such properties and assets (including
leasehold interests) are free and clear of Encumbrances except for the following (collectively, “Permitted Encumbrances”):


 


(i)
liens for Taxes not yet due and payable and for which adequate reserves have been set aside by the Company;


 


(ii)
mechanics, carrier’s, workmen’s, repairmen’s, or other like liens arising or incurred in the ordinary course
of business consistent with past practice for amounts that are not delinquent and that are not, individually or in the aggregate,
material to the business of the Company;


 


(iii)
easements, rights of way, zoning ordinances, and other similar encumbrances affecting Real Property that are not, individually
or in the aggregate, material to the business of the Company;


 






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(iv)
other than with respect to owned Real Property, liens arising under original purchase price conditional sales contracts and equipment
leases with third parties entered into in the ordinary course of business consistent with past practice that are not, individually
or in the aggregate, material to the business of the Company; or


 


(v)
those items set forth in Schedule 3.10(a)(v);


 


(b)
Schedule 3.10(b) lists (i) the street address of each parcel of Real Property; (ii) if such property is leased or subleased
by the Company, the lease or sublease with respect to such property, the landlord under the lease, the rental amount currently
being paid, and the expiration of the term of such lease or sublease for each leased or subleased property; and (iii) the current
use of such property. With respect to owned Real Property, the Company has delivered or made available to Parent true, complete,
and correct copies of the deeds and other instruments (as recorded) by which the Company acquired such Real Property, and copies
of all title insurance policies, opinions, abstracts, and surveys in the possession of the Company and relating to the Real Property.
With respect to leased Real Property, the Company has delivered or made available to Parent true, complete, and correct copies
of any leases affecting the Real Property. The Company is not a sublessor or grantor under any sublease or other instrument granting
to any other Person any right to the possession, lease, occupancy, or enjoyment of any leased Real Property. The use and operation
of the Real Property in the conduct of the Company’s business do not violate in any material respect any Law, covenant,
condition, restriction, easement, license, permit, or agreement applicable to the Company or its historic, current, or expected
future business operations. No material improvements constituting a part of the Real Property encroach on real property owned
or leased by a Person other than the Company. There are no Actions pending nor, to the Company’s Knowledge, threatened against
or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent
domain proceedings.


 


Section
3.11 Condition and Sufficiency of Assets. Except
as set forth in Schedule 3.11, the buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles,
and other items of tangible personal property of the Company are structurally sound, are in good operating condition and repair,
ordinary wear and tear excepted, and are adequate for the uses to which they are being put as of the date of this Agreement, and
none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles, and other items of tangible personal
property is in need of deferred maintenance or repairs as of the date of this Agreement except for ordinary, routine maintenance
and repairs that are not material in nature or cost. The buildings, plants, structures, furniture, fixtures, machinery, equipment,
vehicles and other items of tangible personal property currently owned or leased by the Company, together with all other properties
and assets of the Company, are sufficient for the continued conduct of the Company’s business after the Closing in substantially
the same manner as conducted prior to the Closing and constitute all of the rights, properties, and assets necessary to conduct
the business of the Company as currently conducted.


 






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Section
3.12 Intellectual Property.


 


(a)
Schedule 3.12(a) lists all (i) Company IP Registrations and (ii) Company Intellectual Property (including software) that
is not registered but that is material to the Company’s business or operations. All required filings and fees related to
the Company IP Registrations have been timely filed with and paid to the relevant Governmental Authorities and authorized registrars,
and all Company IP Registrations are otherwise in good standing. The Company has provided the Parent with true and complete copies
of file histories, documents, certificates, office actions, correspondence, and other materials related to all Company IP Registrations.


 


(b)
Schedule 3.12(b) lists all Company IP Agreements. The Company has provided the Parent with true and complete copies of
all such Company IP Agreements, including all modifications, amendments, and supplements thereto and waivers thereunder. Each
Company IP Agreement is valid and binding on the Company in accordance with its terms and is in full force and effect. Neither
the Company nor any other party thereto (i) is in breach of or default under (or is alleged to be in breach of or default under),
or (ii) has provided or received any notice of breach or default of or any intention to terminate, any Company IP Agreement.


 


(c)
The Company is the sole and exclusive legal and beneficial, and with respect to the Company IP Registrations, record, owner of
all right, title, and interest in and to, or has a valid right to use, the Company Intellectual Property, and has the valid right
to use all other Intellectual Property used in or necessary for the conduct of the Company’s current business or operations,
in each case, free and clear of Encumbrances other than Permitted Encumbrances. Without limiting the generality of the foregoing,
the Company has entered into binding, written agreements with every current and former employee of the Company, and with every
current and former independent contractor, who has participated in the development of Company Intellectual Property, whereby such
employees and independent contractors (i) assign to the Company any ownership interest and right they may have in the Company
Intellectual Property and (ii) acknowledge the Company’s exclusive ownership of all Company Intellectual Property. The Company
has provided the Parent with true and complete copies of all such agreements.


 


(d)
The consummation of the transactions contemplated hereunder will not result in the loss or impairment of, or payment of any additional
amounts with respect to, nor require the consent of any other Person in respect of, the Company’s right to own, use, or
hold for use any Intellectual Property as owned, used, or held for use in the conduct of the Company’s business or operations
as currently conducted.


 


(e)
The Company’s rights in the Company Intellectual Property are valid, subsisting, and enforceable. The Company has taken
all reasonable steps to maintain the Company Intellectual Property and to protect and preserve the confidentiality of all trade
secrets included in the Company Intellectual Property, including requiring all Persons having access thereto to execute written
non-disclosure agreements.


 


(f)
The conduct of the Company’s business as currently and formerly conducted, and the products, processes, and services of
the Company, have not infringed, misappropriated, diluted, or otherwise violated, and do not and will not infringe, dilute, misappropriate,
or otherwise violate, the Intellectual Property or other rights of any Person. To the Company’s Knowledge, no Person has
infringed, misappropriated, diluted, or otherwise violated, or is currently infringing, misappropriating, diluting, or otherwise
violating, any Company Intellectual Property.


 






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(g)
There are no Actions (including any oppositions, interferences, or re-examinations) settled during the 2018 calendar year prior
to the date of this Agreement, pending, or threatened (including in the form of offers to obtain a license): (i) alleging any
infringement, misappropriation, dilution, or violation of the Intellectual Property of any Person by the Company; (ii) challenging
the validity, enforceability, registrability, or ownership of any Company Intellectual Property or the Company’s rights
with respect to any Company Intellectual Property; or (iii) by the Company or any other Person alleging any infringement, misappropriation,
dilution, or violation by any Person of the Company Intellectual Property. The Company is not subject to any outstanding or, to
the Company’s Knowledge, prospective Governmental Order (including any motion or petition therefor) that does or would restrict
or impair the use of any Company Intellectual Property.


 


Section
3.13 Inventory. All inventory of the Company reflected in the Interim Balance
Sheet or arising after the date thereof consists of a quality and quantity usable and salable in the ordinary course of business
consistent with past practice, except for obsolete, damaged, defective, or slow-moving items that have been written off or written
down to fair market value or for which adequate reserves have been established. All such inventory is owned by the Company free
and clear of all Encumbrances, and no inventory is held on a consignment basis. The quantities of each item of inventory (whether
raw materials, work-in-process, or finished goods) are not excessive, but are reasonable in the present circumstances of the Company,
except for obsolete, damaged, defective, or slow-moving items that have been written off or written down to fair market value
or for which adequate reserves have been established.


 


Section
3.14 Accounts Receivable. The accounts receivable reflected on the Interim Balance
Sheet and the accounts receivable arising after the date thereof (a) have arisen from bona fide transactions entered into by the
Company involving the sale of goods or the rendering of services in the ordinary course of business consistent with past practice;
(b) constitute only valid, undisputed claims of the Company not subject to claims of set-off or other defenses or counterclaims
other than normal cash discounts accrued in the ordinary course of business consistent with past practice; and (c) subject to
a reserve for bad debts shown on the Interim Balance Sheet or, with respect to accounts receivable arising after the Interim Balance
Sheet Date, on the accounting records of the Company, are collectible in full (net of reserves and allowances for bad debt or
doubtful accounts) within 90 days after billing. The reserve for bad debts shown on the Interim Balance Sheet or, with respect
to accounts receivable arising after the Interim Balance Sheet Date, on the accounting records of the Company, have been determined
in accordance with GAAP, consistently applied, subject to normal year-end adjustments and the absence of disclosures normally
made in footnotes.


 


Section
3.15 Customers and Suppliers.


 


(a)
Schedule 3.15(a) sets forth a list of (i) the top ten (10) customers of the Company, based upon aggregate consideration
paid to the Company for goods or services rendered, for each of the two most recent fiscal years and the six-month period ended
June 30, 2018 (collectively, the “Material Customers”) and (ii) the amount of consideration paid by each Material
Customer during such periods. Except as set forth in Schedule 3.15(a), the Company has not received any written notice,
and has no reason to believe, that any of its Material Customers has ceased, or intends to cease after the Closing, to use its
goods or services or to otherwise terminate or materially reduce its relationship with the Company.





 



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(b)
Schedule 3.15(b) sets forth (i) the top
ten (10) suppliers of the Company, based upon aggregate consideration paid by the Company for goods or services rendered, for
each of the two most recent fiscal years and the six-month period ended June 30, 2018 (collectively, the “Material Suppliers”)
and (ii) the amount of purchases from each Material Supplier during such periods. Except as set forth in Schedule 3.15(b),
the Company has not received any written notice that any of its Material Suppliers has ceased, or intends to cease, to supply
goods or services to the Company or to otherwise terminate or materially reduce its relationship with the Company.


 


Section
3.16 Insurance. Schedule 3.16 sets
forth a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, real
and personal property, workers’ compensation, vehicular, directors’ and officers’ liability, fiduciary liability,
and other casualty and property insurance maintained by the Company (collectively, the “Insurance Policies”)
and true and complete copies of such Insurance Policies have been made available to the Parent. Such Insurance Policies are in
full force and effect and shall remain in full force and effect until the Closing. The Company has not received any written notice
of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums
due on such Insurance Policies have either been paid or, if due and payable prior to Closing, will be paid prior to Closing in
accordance with the payment terms of each Insurance Policy. The Insurance Policies do not provide for any retrospective premium
adjustment or other experience-based liability on the part of the Company. All such Insurance Policies (a) are valid and binding
in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any
lapse in coverage. Except as set forth in Schedule 3.16, there are no claims related to the business of the Company pending
under any such Insurance Policies as to which coverage has been questioned, denied, or disputed or in respect of which there is
an outstanding reservation of rights. The Company is not in default under, and has not otherwise failed to comply with, in any
material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the type and in the amounts
customarily carried by companies of comparable size in the industry in which the Company operates and are sufficient for compliance
with all applicable Laws and Contracts to which the Company is a party or by which it is bound.


 


Section
3.17 Legal Proceedings; Governmental Orders.


 





(a)
Except as set forth in Schedule 3.17(a), there are no Actions pending or, to the Company’s Knowledge, threatened
(a) against or by the Company affecting any of its properties or assets or (b) against or by the Company that challenge or seek
to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances
may exist that would reasonably be expected to give rise to, or serve as a basis for, any such Action.


 






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(b)
Except as set forth in Schedule 3.17(b), there are no outstanding Governmental Orders and no unsatisfied judgments, penalties,
or awards against or affecting the Company or any of its properties or assets. The Company is in compliance with the terms of
each Governmental Order set forth in Schedule 3.17(b). No event has occurred or circumstances exist that may constitute
or would reasonably be expected to result in (with or without notice or lapse of time) a violation of any such Governmental Order.


 


Section
3.18 Compliance With Laws; Permits.


 


(a)
Except as set forth in Schedule 3.18(a), during the preceding three (3) years, the Company has materially complied, and
is now in material compliance with, all Laws applicable to it or its business, properties, or assets, except where the failure
comply has not had and would not reasonably be expected to have a Company Material Adverse Effect.


 


(b)
All Permits required for the Company to conduct its business have been obtained by it and are valid and in full force and effect.
All fees and charges with respect to such Permits have been paid in full, except where the failure to hold such Permit or to pay
such fees or assessments has not had and would not reasonably be expected to have a Company Material Adverse Effect. Schedule
3.18(b) lists all current Permits issued to the Company, including the names of the Permits and their respective dates of
issuance and expiration. To the Company’s Knowledge, no event has occurred that, with or without notice or lapse of time
or both, would reasonably be expected to result in the revocation, suspension, lapse, or limitation of any Permit set forth in
Schedule 3.18(b).


 


Section
3.19 Environmental Matters.


 


(a)
The Company is currently and has been in compliance with all Environmental Laws and has not received from any Person any: (i)
Environmental Notice or Environmental Claim or (ii) written request for information pursuant to Environmental Law, which, in each
case, either remains pending or unresolved, or is the source of ongoing obligations or requirements.


 


(b)
The Company has obtained and is in material compliance with all Environmental Permits (each of which is disclosed in Schedule
3.19(b)) necessary for the ownership, lease, operation, or use of the business or assets of the Company and all such Environmental
Permits are in full force and effect and shall be maintained in full force and effect by the Company through the Closing Date
in accordance with, and to the extent required by, Environmental Law, and the Company is not aware of any condition, event, or
circumstance that might prevent or impede, after the Closing Date, the ownership, lease, operation, or use of the business or
assets of the Company as currently carried out.


 


(c)
No real property currently or formerly owned, operated, or leased by the Company is listed on, or has been proposed for listing
on, the National Priorities List (or CERCLIS) under CERCLA, or any similar state list.


 


(d)
There has been no Release of Hazardous Materials in contravention of Environmental Law with respect to the business or assets
of the Company or any real property currently or formerly owned, operated, or leased by the Company, and the Company has not received
an Environmental Notice that any real property currently or formerly owned, operated, or leased in connection with the business
of the Company (including soils, groundwater, surface water, buildings, and other structure located on any such real property)
has been contaminated with any Hazardous Material that would reasonably be expected to result in an Environmental Claim against,
or a violation of Environmental Law or term of any Environmental Permit by, the Company.





 



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(e)
Schedule 3.19(e) contains a complete and accurate list of all active or abandoned aboveground or underground storage tanks
owned or operated by the Company as of the date of this Agreement.


 


(f)
Schedule 3.19(f) contains a complete and accurate list of all off-site Hazardous Materials treatment, storage, or disposal
facilities or locations used by the Company and any predecessors as to which the Company may retain liability, and none of these
facilities or locations has been placed or proposed for placement on the National Priorities List (or CERCLIS) under CERCLA, or
any similar state list, and the Company has not received any Environmental Notice regarding potential liabilities with respect
to such off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by the Company.


 


(g)
The Company has not retained or assumed, by Contract or operation of Law, any liabilities or obligations of third parties under
Environmental Law.


 


(h)
The Company has provided or otherwise made available to the Parent and listed in Schedule 3.19(h): (i) any and all environmental
reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models, and other similar documents
with respect to the business or assets of the Company or any currently or formerly owned, operated, or leased real property that
are in the possession of the Company related to compliance with Environmental Laws, Environmental Claims, or an Environmental
Notice or the Release of Hazardous Materials and (ii) any and all material documents concerning planned or anticipated capital
expenditures required to reduce, offset, limit, or otherwise control pollution and/or emissions, manage waste, or otherwise ensure
compliance with current or future Environmental Laws (including costs of remediation, pollution control equipment, and operational
changes).


 


(i)
The Company is not aware of any condition, event, or circumstance concerning the Release or regulation of Hazardous Materials
that might, after the Closing Date, prevent, impede, or materially increase the costs associated with the ownership, lease, operation,
performance, or use of the business or assets of the Company as currently carried out.


 


Section
3.20 Employee Benefit Matters.


 


(a)
Schedule 3.20(a) contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting,
profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control,
retention, severance, vacation, paid time off, welfare, fringe-benefit, and other similar agreement, plan, policy, program, or
arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including
each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether
or not subject to ERISA, that is or has been maintained, sponsored, contributed to, or required to be contributed to, by the Company
for the benefit of any current or former employee, officer, director, retiree, independent contractor, or consultant of the Company
or any spouse or dependent of such individual, or under which the Company or any of its ERISA Affiliates has or would reasonably
be expected to have any Liability, or with respect to which the Parent or any of its Affiliates would reasonably be expected to
have any Liability, contingent or otherwise (as required to be listed in Schedule 3.20(a), each, a “Benefit Plan”).
The Company has separately identified in Schedule 3.20(a) any Benefit Plan that contains a change in control provision.
As of the date of this Agreement, the Company does not have any Stock Incentive Plans, each of which, if ever extant, was terminated
or discontinued on or before June 30, 2018, and no participants in respect of any such plan have any rights therein.


 






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(b)
With respect to each Benefit Plan, the Company has made available to the Parent accurate, current, and complete copies of each
of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii)
where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable,
copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration
agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the
future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions,
summaries of material modifications, employee handbooks, and any other written communications relating to any Benefit Plan; (v)
in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination,
opinion, or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required
to be filed, copies of the two most recently filed Forms 5500, with schedules and financial statements attached; (vii) actuarial
valuations and reports related to any Benefit Plans with respect to the two most recently completed plan years; (viii) the most
recent nondiscrimination tests performed under the Code; and (ix) copies of material notices, letters, or other correspondence
from the Internal Revenue Service, Department of Labor, Pension Benefit Guaranty Corporation, or other Governmental Authority
relating to the Benefit Plan.


 


(c)
Except as set forth in Schedule 3.20(c), each Benefit Plan and any related trust (other than any multiemployer plan within
the meaning of Section 3(37) of ERISA (each a “Multiemployer Plan”)) has been established, administered, and
maintained in accordance with its terms and in compliance in all material respects with all applicable Laws (including ERISA and
the Code). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified
Benefit Plan”) is so qualified and has received a favorable and current determination letter from the Internal Revenue
Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype
plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are
exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and to the Company’s Knowledge,
no event has occurred that would reasonably be expected to affect adversely the qualified status of any Qualified Benefit Plan.
To the Company’s Knowledge, no event has occurred with respect to any Benefit Plan that has subjected, or would reasonably
be expected to subject, the Company or any of its ERISA Affiliates to a penalty under Section 502 of ERISA or to tax or penalty
under Section 4975 of the Code. Except as set forth in Schedule 3.20(c), all benefits, contributions, and premiums relating
to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting
principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued, or otherwise adequately reserved
to the extent required by, and in accordance with, GAAP.


 






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(d)
Neither the Company nor any of its ERISA Affiliates has (i) incurred, either directly or indirectly, any material Liability under
Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii)
failed timely to pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit Plan; or (iv) engaged
in any transaction that would reasonably be expected to give rise to liability under Section 4069 or Section 4212(c) of ERISA.


 


(e)
With respect to each Benefit Plan (i) no such plan is a Multiemployer Plan; (ii) no such plan is a “multiple employer plan”
within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section
3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or
to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code
or Title IV of ERISA, and none of the assets of the Company or any ERISA Affiliate is, or may reasonably be expected to become,
the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,”
as defined in Section 4043 of ERISA, has occurred with respect to any such plan.


 


(f)
Each Benefit Plan can be amended, terminated, or otherwise discontinued in accordance with its terms, without material liabilities
to the Company, or any of its Affiliates other than ordinary administrative expenses typically incurred in a termination event.
The Company has no commitment or obligation, and has not made any representations to any employee, officer, director, independent
contractor, or consultant, whether or not legally binding, to adopt, amend, modify, or terminate any Benefit Plan or any collective
bargaining agreement in connection with the consummation of the transactions contemplated by this Agreement or otherwise.


 


(g)
Except as set forth in Schedule 3.20(g) and other than as required under Section 601 et seq. of ERISA or other applicable
Law, no Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason, and neither the Company
nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree welfare benefits to any individual or
ever represented, promised, or contracted to any individual that such individual would be provided with post-termination or retiree
welfare benefits.


 


(h)
Except as set forth in Schedule 3.20(h), there is no pending or, to the Company’s Knowledge, threatened Action relating
to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three years prior to the date hereof
been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under, or is
a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by any Governmental Authority.


 






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(i)
There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation
or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such
plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer,
employee, independent contractor, or consultant, as applicable. Neither the Company nor any of its Affiliates has any commitment
or obligation, or has made any representations, to any director, officer, employee, independent contractor, or consultant, whether
or not legally binding, to amend, modify, or terminate any Benefit Plan or any collective bargaining agreement.


 


(j)
Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational
and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and
proposed and final regulations) thereunder. The Company does not have any obligation to gross up, indemnify, or otherwise reimburse
any individual for any excise taxes, interest, or penalties incurred pursuant to Section 409A of the Code.


 


(k)
Each individual who is classified by the Company as an independent contractor has been properly classified for purposes of participation
and benefit accrual under each Benefit Plan.


 


(l)
Except as set forth in Schedule 3.20(l), neither the execution of this Agreement nor any of the transactions contemplated
by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or
former director, officer, employee, independent contractor, or consultant of the Company to severance pay or any other payment;
(ii) accelerate the time of payment, funding, or vesting, or increase the amount of compensation due to any such individual; (iii)
limit or restrict the right of the Company to merge, amend, or terminate any Benefit Plan; (iv) increase the amount payable under,
or result in any other material obligation pursuant to, any Benefit Plan; (v) result in “excess parachute payments”
within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified
individual” within the meaning of Section 280G(c) of the Code. The Company has made available to the Parent true and complete
copies of any Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection
with the transactions.


 


Section
3.21 Employee Matters.


 


(a)
Schedule 3.21(a) contains a list of all persons who are employees, independent contractors, or consultants of the Company
as of October 31, 2018, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized,
and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full- or part-time);
(iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus, or other incentive-based compensation; and
(vi) a description of the fringe benefits provided to each such individual as of the date hereof. Except as set forth in Schedule
3.21(a), all compensation, including wages, commissions, and bonuses, payable to all employees, independent contractors, or
consultants of the Company for services performed have been paid in full (or accrued in full on the Interim Balance Sheet) and
there are no outstanding agreements, understandings, or commitments of the Company with respect to any compensation, commissions,
or bonuses.


 






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(b)
Except as set forth in Schedule 3.21(b), the Company is not, and has not been at any time during the three years prior
to the date of this Agreement, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with
a union, works council, or labor organization (collectively, “Union”), and there is not, and has not been at
any time during the three years prior to the date of this Agreement, any Union representing or purporting to represent any employee
of the Company, and, to the Company’s Knowledge, no Union or group of employees is seeking or has at any time during the
three years prior to the date of this Agreement sought to organize employees for the purpose of collective bargaining. Except
as set forth in Schedule 3.21(b), during the three years prior to the date of this Agreement, there has not been, nor,
to the Knowledge of the Company, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal
to work overtime, or other similar material labor disruption or dispute affecting the Company or any of its employees. The Company
has no duty to bargain with any Union.


 


(c)
The Company is and has been during the three years prior to the date of this Agreement in compliance in all material respects
all applicable Laws pertaining to employment and employment practices, including all Laws relating to labor relations, equal employment
opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability
rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees,
working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence, and unemployment
insurance. All individuals characterized and treated by the Company as independent contractors or consultants are properly treated
as independent contractors under all applicable Laws. All employees of the Company classified as exempt under the Fair Labor Standards
Act and state and local wage and hour laws are properly classified. Except as set forth in Schedule 3.21(c), there are
no Actions against the Company pending, or to the Company’s Knowledge, threatened to be brought or filed, by or with any
Governmental Authority in connection with the employment of any current or former applicant, employee, consultant, volunteer,
intern, or independent contractor of the Company, including any claim relating to unfair labor practices, employment discrimination,
harassment, retaliation, equal pay, wage and hours, or any other employment-related matter arising under applicable Laws.


 


Section
3.22 Taxes.


 


(a)
All Tax Returns required to be filed on or before the Closing Date by the Company have been, or will be, timely filed. Such Tax
Returns are, or will be, true, complete, and correct in all material respects. All Taxes due and owing by the Company (whether
or not shown on any Tax Return) have been, or will be, timely paid or, in the case of Taxes that are not yet due and payable as
of the Closing Date but that relate to a Pre-Closing Tax Period, accrued.


 






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(b)
The Company has withheld and paid each Tax required to have been withheld and paid (or, in circumstances where such Taxes have
not yet become due and payable, have been set aside in segregated accounts to be paid to the proper Taxing Authority) in connection
with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder, or other party, and complied
in all material respects with all information reporting and backup withholding provisions of applicable Law.


 


(c)
The Company has not received, within the past five (5) years, and, to the Company’s Knowledge, has not received at any time,
any written claim from any Taxing Authority in any jurisdiction where the Company does not file Tax Returns that it is, or may
be, subject to Tax by that jurisdiction.


 


(d)
No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of the Company for
which the applicable statute of limitations has not expired, other than extensions or waivers that are the result of filing date
extensions that do not require the affirmative consent of the applicable Taxing Authority.


 


(e)
The amount of the Company’s Liability for unpaid Taxes for all periods covered by the Financial Statements and ending on
or before the Interim Balance Sheet Date does not, in the aggregate, materially exceed the amount of accruals for Taxes (excluding
reserves for deferred Taxes) reflected on the Financial Statements.


 


(f)
Schedule 3.22(f) sets forth:


 


(i)
the taxable years of the Company as to which the applicable statutes of limitations on the assessment and collection of income
or other material Taxes have not expired;


 


(ii)
those years ending after December 31, 2012 for which examinations by the Taxing Authorities have been completed; and


 


(iii)
those taxable years for which examinations by Taxing Authorities are currently being conducted.


 


(g)
All deficiencies asserted, or assessments made, against the Company as a result of any examinations by any Taxing Authority have
been fully settled or paid.


 


(h)
The Company is not a party to any Action by any Taxing Authority. There are no pending or, to the Company’s Knowledge, threatened
Actions against the Company by any Taxing Authority.


 


(i)
The Company has delivered to the Parent copies of all federal, state, local, and foreign income, franchise, and similar Tax Returns,
examination reports, and statements of deficiencies assessed against, or agreed to by, the Company for all Tax periods ending
after December 31, 2015.


 






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(j)
There are no Encumbrances for Taxes upon the assets of the Company (other than for current Taxes not yet due and payable and for
which adequate reserves have been set aside by the Company).


 


(k)
The Company is not a party to, or bound by, any Tax indemnity, Tax-sharing, Tax allocation, or similar agreement, the principal
subject of which is Tax.


 


(l)
No private letter rulings, technical advice memoranda, or similar agreements or rulings have been requested or entered into by
the Company, or issued to the Company by any Taxing Authority.


 


(m)
The Company has not been a member of an affiliated, combined, consolidated, or unitary Tax group for Tax purposes. The Company
has no Liability for Taxes of any Person (other than the Company) under Treasury Regulations Section 1.1502-6 (or any corresponding
provision of state, local, or foreign Law), as transferee or successor, by contract or otherwise.


 


(n)
No Shareholder is a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2. The Company is
not, nor has it been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the
applicable period specified in Section 897(c)(1)(a) of the Code.


 


(o)
The Company has not been, within the past five (5) years, a “distributing corporation” or a “controlled corporation”
in connection with a distribution described in Section 355 of the Code.


 


(p)
The Company is not, and has not been, at any time during the three years prior to the date of this Agreement, a party to, or a
promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations
Section 1.6011-4(b).


 


(q)
All individuals classified by the Company as independent contractors are properly classified as such for applicable Tax purposes.


 


(r)
The Company is not subject to, or required to register for, any value added Taxes.


 


(s)
The Company does not have and has not had a permanent establishment in any foreign country, as defined in any applicable Tax treaty
or convention between the United States and such foreign country.


 


(t)
All FinCEN Forms 114, Report of Foreign Bank Accounts, and IRS Forms TD F 90-22.1, Report of Foreign Bank and Financial Accounts,
required to be filed by, or on behalf of, the Company have been timely filed and all such forms were true, correct, and complete
when filed.


 






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(u)
The Company has during the three years prior to the date of this Agreement (i) filed or caused to be filed with the appropriate
Governmental Authority all reports required to be filed with respect to any material unclaimed property and has remitted to the
appropriate Governmental Authority all material unclaimed property required to be remitted or (ii) delivered or paid all material
unclaimed property to its original or proper recipient. No material asset or property, or material amount of assets or properties,
of the Company is escheatable to any Governmental Authority under any applicable Law, including uncashed checks to vendors or
employees, nonrefunded over payments, credits, unused gift certificates, or unused prepaid accounts.


 


(v)
The Company has not participated in or cooperated with an international boycott within the meaning of Section 999 of the Code
and has not received any written request to do so.


 


Section
3.23 Books and Records. The minute books and
stock record books of the Company have been made available to the Parent, are complete and correct, and have been maintained in
accordance with reasonable business practices. The minute books of the Company contain accurate and complete records of all meetings,
and material actions taken by written consent of, the Shareholders, the Company Board, and any committees of the Company Board,
and no meeting, or action taken by written consent, of any such Shareholders, Company Board, or committee has been held for which
minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will
be in the possession of the Company.


 


Section
3.24 Brokers. No broker, finder, or investment banker is entitled to any brokerage,
finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company or any Shareholder.


 


Section
3.25 Affiliate Agreements. None of the Shareholders or any of their respective
Affiliates or any officer, director, or equivalent of the Company or any of his or her Affiliates or any individual in such officer’s,
director’s, or equivalent person’s immediate family: (a) owns or holds any interest in any property or assets owned,
leased, or used by the Company, (b) has a material interest in any customer or supplier of the Company or any provider of products
or services to the Company, or (c) is a party to any Contract or other arrangement with the Company (each, an “Affiliate
Agreement”), other than salaries, expense reimbursement, and employee benefits in respect of employment in the ordinary
course of business.


 


Section
3.26 Investment Representations.


 


(a)
Each Shareholder is acquiring the Parent Shares for his or its own account for the purpose of investment only, without any view
toward sale or distribution.


 


(b)
Each Shareholder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act.


 


(c)
Each Shareholder has such knowledge and experience in financial and business matters so as to be able to evaluate the risks and
merits of its investment in the Parent and it is able financially to bear the risks thereof.





 



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(d)
Each Shareholder understands that (i) the Parent Shares have not been registered under the Securities Act or qualified under any
state securities or blue sky laws by reason of their issuance in a transaction exempt from the registration requirements of the
Securities Act and the qualification requirements of the various state securities or blue sky laws and, therefore, cannot be resold
unless they are registered under the Securities Act and qualified under applicable state securities laws or unless exemptions
from such registration and qualification requirements are available, (ii) even if the Parent Shares are subsequently registered
under the Securities Act and qualified under state securities or blue sky laws, or exemptions from such registration and qualification
requirements are available, the amount or percentage of the Parent Shares that may be sold or transferred may be limited by applicable
federal and state laws, rules, and regulations, and (iii) no public agency has reviewed the accuracy or adequacy of any information
furnished to the Shareholders and their respective Representatives in connection with the Shareholders’ respective acquisitions
of the Parent Shares. The Shareholders agree that all stock certificates representing the Parent Shares shall bear the following
legend (or substantially equivalent language):


 


“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THAT ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION
THEREUNDER IS AVAILABLE.”


 


(e)
Each Shareholder acknowledges that such Shareholder
has had access to such financial and other information relating to the Parent, including the Parent SEC Reports and the Parent’s
other annual, quarterly, and current reports, registration statements, prospectuses, proxy statements, information statements,
and other documents (including exhibits and amendments ) filed by the Parent with the Commission and other publicly available
information regarding the Parent, required for such Shareholder to make an informed decision with respect to such Shareholder’s
acquisition of the Parent Shares hereby and that such Shareholder has had an opportunity to discuss the Parent’s business,
management, and financial affairs with the Parent’s management, and has had all of such Shareholder’s questions regarding
the Parent or the Parent Shares answered to such Shareholder’s satisfaction. Each Shareholder acknowledges that he or it
should carefully review the risk factors set forth in the Parent SEC Reports.


 


Section
3.27 No Other Representations or Warranties. Neither the Company nor any Shareholder
makes any representation or warranty, whether express or implied, about the Company, its business or the Shareholders other than
the representations and warranties explicitly set forth in this ARTICLE III (including, and as qualified by, the related portions
of the Schedules).


 


Section
3.28 Absence of Company Material Adverse Effect; Investigation. Notwithstanding
anything to the contrary in this Agreement, since January 1, 2018, no event or events have occurred that have had or would reasonably
be expected to have, either individually or in the aggregate, a Company Material Adverse Effect. Further, each of the Company
and each of the Shareholders acknowledges that no investigation by the Parent or other information received by the Parent, unless
provided in a writing prior to the Closing from the Company or any of the Shareholders and, thereafter, but prior to the Closing,
acknowledged in a writing from the Parent to the Company and to each of the Shareholders, shall operate as a waiver or otherwise
affect any representation, warranty, or agreement given or made by the Company and/or the Shareholders in this Agreement.


 






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ARTICLE
IV

Representations and warranties
of THE Parent and merger sub


 


Except
as disclosed in the Parent SEC Reports, the Parent, Merger Sub No. 1, and Merger Sub No. 2 represent and warrant to the Company
and the Shareholders that the statements contained in this ARTICLE IV are true and correct as of the date hereof.


 


Section
4.01 Organization and Authority. Each of the Parent, Merger Sub No. 1, and Merger
Sub No. 2 is a corporation or a limited liability company, as relevant, duly organized, validly existing, and in good standing
under the Laws of the jurisdiction of its incorporation. Each of the Parent, Merger Sub No. 1, and Merger Sub No. 2 has full corporate
or limited liability company power and authority to enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery, and performance by the Parent, Merger Sub No. 1, and Merger Sub
No. 2 of this Agreement and the consummation by the Parent, Merger Sub No. 1, and Merger Sub No. 2 of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part of the Parent, Merger Sub No. 1, and Merger Sub
No. 2 and no other entity proceedings on the part of the Parent, Merger Sub No. 1, and Merger Sub No. 2 are necessary to authorize
the execution, delivery, and performance of this Agreement or to consummate the Merger and the other transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Parent, Merger Sub No. 1, and Merger Sub No. 2, and (assuming
due authorization, execution, and delivery by each other party hereto) this Agreement constitutes a legal, valid, and binding
obligation of the Parent, Merger Sub No. 1, and Merger Sub No. 2 enforceable against the Parent, Merger Sub No. 1, and Merger
Sub No. 2 in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and
other similar laws affecting creditors’ rights generally and by general principles of equity.


 


Section
4.02 No Conflicts; Consents. The execution,
delivery, and performance by the Parent, Merger Sub No. 1, and Merger Sub No. 2 of this Agreement and the consummation of the
transactions contemplated hereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under,
any provision of the Organizational Documents of the Parent, Merger Sub No. 1, or Merger Sub No. 2; (b) conflict with or result
in a violation or breach of any provision of any Law applicable to the Parent, Merger Sub No. 1, or Merger Sub No. 2; or (c) require
the consent, notice, or other action by any Person under any Contract to which the Parent, Merger Sub No. 1, or Merger Sub No.
2 is a party. No consent, approval, Permit, Governmental Order, or declaration of, filing with, or notice to, any Governmental
Authority is required by or with respect to the Parent, Merger Sub No. 1, or Merger Sub No. 2 in connection with the execution,
delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, except for (i) the filings
of the Articles of Merger with the Utah Division and (ii) such other consents, approvals, authorizations, orders, registrations,
filings, or qualifications that shall have been obtained or made on or prior to the Closing Date as may be required by the securities
or blue sky laws of the various states and the Securities Act in connection with the issuance of the Parent Shares.


 






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Section
4.03  No Prior Merger Sub Operations.
Each of Merger Sub No. 1 and Merger
Sub No. 2 was formed solely for the purpose of effecting the Merger and has not engaged in any business activities or conducted
any operations other than in connection with the transactions contemplated hereby.


 


Section
4.04 Brokers. No broker, finder, or investment
banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of the Parent, Merger Sub No. 1, or Merger Sub No. 2 other than
A.G.P., the fees and expenses of which shall be paid by the Parent.


 


Section
4.05 Sufficiency of Funds. At the Closing,
the Parent will have sufficient cash on hand or other sources of immediately available funds to enable it to consummate the transactions
contemplated by this Agreement.


 


Section
4.06 Legal Proceedings. There are no Actions pending or, to the Parent’s
knowledge, threatened against or by the Parent or any Affiliate of the Parent that (a) has had or would reasonably be expected
to have a Parent Material Adverse Effect or (b) challenge or seek to prevent, enjoin, or otherwise delay the transactions contemplated
by this Agreement. To the Parent’s knowledge, no event has occurred or circumstances exist that may give rise or serve as
a basis for any such Action.


 


Section
4.07 SEC Reports. 


 


(a)
The Parent (i) has timely filed or furnished all reports, registration statements, proxy statements, prospectuses, and other materials,
together with any amendments required to be made with respect thereto, that it was required to file with or furnish to the Commission
pursuant to the Securities Act or the Exchange Act since January 1, 2017, and all such
reports, registration statements, proxy statements, prospectuses, other materials, and amendments have complied in all material
respects with all legal requirements relating thereto, and (ii) has paid all fees and assessments due and payable in connection
therewith.


 


(b)
An accurate and complete copy of each final registration statement, prospectus, report, schedule, and definitive proxy statement
filed with or furnished to the SEC by the Parent pursuant to the Securities Act or the Exchange Act since January 1, 2017 and
prior to the date of this Agreement (the “Parent SEC Reports”) is publicly available. No Parent SEC Report,
at the time filed, furnished, or communicated (and, in the case of registration statements and proxy statements, on the dates
of effectiveness and the dates of the relevant meetings, respectively), and considering all amendments to any Parent SEC Report
filed prior to the date hereof, contained any untrue statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements made therein, in light of the circumstances in which they were
made, not misleading, except that information filed as of a later date (but before the date of this Agreement) shall be deemed
to modify information as of an earlier date. As of their respective dates, all of the Parent SEC Reports complied as to form in
all material respects with the published rules and regulations of the Commission with respect thereto. No executive officer of
the Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley
Act.


 






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Section
4.08 Capitalization. The Parent has the authorized capitalization as set forth
in the Parent SEC Reports, and all of the issued and outstanding shares of capital stock of the Parent have been duly authorized
and validly issued and are fully paid and non-assessable. Upon issuance pursuant to the terms hereof, the Parent Shares shall
be validly issued, fully paid, non-assessable, and outstanding and will not have been issued in violation of or subject to any
preemptive or similar rights. No approval from the holders of outstanding shares of Parent Common Stock is required in connection
with the Parent’s issuance of the Parent Shares to the Sellers or the consummation of the transactions contemplated pursuant
to this Agreement.


 


Section
4.09 Financial Statements.


 


(a)
The financial statements of the Parent and its subsidiaries included (or incorporated by reference) in the Parent SEC Reports
(including the related notes, where applicable) (i) have been prepared from, and are in accordance with, the books and records
of the Parent and its subsidiaries; (ii) fairly present in all material respects the consolidated results of operations, cash
flows, changes in shareholders’ equity, and consolidated financial position of the Parent and its subsidiaries for the respective
fiscal periods or as of the respective dates therein set forth (subject, in the case of unaudited statements, to recurring year-end
audit adjustments normal in nature and amount); (iii) complied as to form, as of their respective dates of filing with the Commission,
in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission
with respect thereto; and (iv) have been prepared in accordance with GAAP consistently applied during the periods involved, except,
in each case, as indicated in such statements or in the notes thereto. As of the date hereof, the books and records of the Parent
and its subsidiaries have been maintained in all material respects in accordance with GAAP and any other applicable legal and
accounting requirements and reflect only actual transactions. As of the date hereof, Weinberg & Company, P.A. has not resigned
(or informed the Parent that it intends to resign) or been dismissed as independent public accountants of the Parent as a result
of or in connection with any disagreements with the Parent on a matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure.


 


(b)
Neither the Parent nor any of its subsidiaries has incurred any material liability or obligation of any nature whatsoever (whether
absolute, accrued, contingent, determined, determinable, or otherwise and whether due or to become due) that would be required
to be reflected on, or reserved against in, a consolidated balance sheet of the Parent and its subsidiaries or in the notes thereto
prepared in accordance with GAAP consistently applied, except for (i) those liabilities that are reflected or reserved against
on the consolidated balance sheet of the Parent and its subsidiaries included in its Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2018 (including any notes thereto), (ii) liabilities incurred in the ordinary course of business consistent
with past practice since June 30, 2018, or otherwise disclosed in any Parent SEC Report filed since such Quarterly Report on Form
10-Q, or (iii) in connection with this Agreement, the transactions contemplated hereby, and the Parent Public Offering.


 






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Section
4.10 Permits; Compliance with Applicable Laws. The Parent and each of its subsidiaries
hold all Permits that are necessary for the lawful conduct of their respective businesses and ownership of their respective properties,
rights, and assets under and pursuant to applicable Law (and have paid all fees and assessments due and payable in connection
therewith), except where the failure to hold such Permit or to pay such fees or assessments has not had and would not reasonably
be expected, individually or in the aggregate, a Parent Material Adverse Effect) and, to the knowledge of the Parent, no suspension
or cancellation of any such necessary Permit has, prior to the date hereof, been threatened in writing. The Parent and each of
its subsidiaries are in compliance in all material respects with all applicable Laws relating to the Parent or any of its subsidiaries,
except where the failure to be in such compliance would not reasonably be expected, individually or in the aggregate, to have
a Parent Material Adverse Effect.


 


Section
4.11 Absence of Material Adverse Effect. Since January 1, 2018, no event or
events have occurred that have had or would reasonably be expected to have, either individually or in the aggregate, a Parent
Material Adverse Effect.


 


Section
4.12 Independent Investigation.
Subject to the provisions of Section 3.28, the Parent acknowledges that it (i) has conducted its own independent investigation,
review, and analysis of the Company and its business and (ii) acknowledges that it has been provided adequate access to the personnel,
properties, assets, premises, books and records, and other documents and data of the Company for such purpose.


 


ARTICLE
V

Covenants


 


Section
5.01 Conduct of Business Prior to the Closing. From
the date hereof until the Closing, except as otherwise set forth in the Disclosure Schedules, provided in this Agreement or consented
to in writing by the Parent (which consent shall not be unreasonably withheld, delayed, denied, or conditioned), the Company shall
(x) conduct the business of the Company in the ordinary course of business consistent with past practice and (y) use reasonable
best efforts to maintain and preserve intact the current organization, business, and franchise of the Company and to preserve
the rights, franchises, goodwill, and relationships of its employees, customers, lenders, suppliers, regulators, and others having
business relationships with the Company. Without limiting the foregoing, except as set forth in the Disclosure Schedules, from
the date hereof until the Closing Date, the Company shall:


 


(a)
preserve and maintain all of its Permits;


 


(b)
pay all of its Taxes, and other obligations when due;


 


(c)
maintain the properties and assets owned, operated, or used by it in substantially the same condition as they were on the date
of this Agreement, subject to reasonable wear and tear;


 


(d)
continue in full force and effect without modification all Insurance Policies, except as required by applicable Law;


 


(e)
defend and protect its properties and assets from infringement or usurpation;


 






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(f)
perform all of its material obligations under all Contracts relating to or affecting its properties, assets, or business;


 


(g)
maintain its books and records in accordance with past practice;


 


(h)
comply in all material respects with all applicable Laws;


 


(i)
not transfer, assign, distribute, or otherwise remove any assets of the Company except in the ordinary course of business; and


 


(j)
not knowingly take or permit any action that would cause any of the changes, events, or conditions described in Section 3.08
to occur.


 


Section
5.02 Access to Information. From the date
hereof until the Closing, the Company shall (a) afford the Parent and its Representatives full and free access(subject to such
access not becoming a material impediment to the Company conducting its business in the ordinary course) to and the right to inspect
all of the Real Property, properties, assets, premises, books and records, business plans, Contracts, and other documents and
data related to the Company; (b) furnish the Parent and its Representatives with such financial, operating, intellectual property,
and other data and information related to the Company as the Parent or any of its Representatives may reasonably request; and
(c) instruct the Representatives of the Company to cooperate with the Parent in its investigation of the Company. Notwithstanding
anything to the contrary in this Agreement, the Company shall not be required to disclose any information to the Parent, Merger
Sub, or their respective Representatives if such disclosure would, in the Company’s reasonable discretion (after consultation
with Company counsel): (x) jeopardize any attorney-client privilege of the Company (determined in consultation with counsel to
the Company) or (y) contravene any applicable Law, fiduciary duty or Contract to which the Company is a party. In such event,
the Company shall promptly deliver to the Parent a reasonably detailed description of the non-disclosed information and the Company’s
reasons why such information should not be disclosed to the Parent. Any investigation pursuant to this Section 5.02 shall
be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company. The Parent and the
Company shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations
under the Confidentiality Agreement, dated ●, 2018, between the Parent and the Company, which shall survive the termination
of this Agreement in accordance with the terms set forth therein.


 


Section
5.03 No Solicitation of Other Bids.


 


(a)
The Company and the Shareholders shall not, and shall not authorize or permit any of their respective Affiliates or Representatives,
directly or indirectly, to (i) encourage, solicit, initiate, facilitate, or continue inquiries regarding an Acquisition Proposal;
(ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition
Proposal; or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal.
The Company and the Shareholders shall immediately cease and cause to be terminated, and shall cause their respective Affiliates
and Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons
conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof, “Acquisition
Proposal” shall mean any inquiry, proposal, or offer from any Person (other than the Parent or any of its Affiliates)
concerning (A) a merger, consolidation, liquidation, recapitalization, share exchange, or other business combination transaction
involving the Company; (B) the issuance or acquisition of shares of the capital stock or other equity securities of the Company;
or (B) the sale, lease, exchange, or other disposition of any portion of the Company’s properties or assets (other than
sales of inventory in the ordinary course of business consistent with past practice).


 








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(b)
In addition to the other obligations under this Section 5.03, the Company and the Shareholders shall promptly (and in any
event within three Business Days after receipt thereof by the Company, any Shareholder, or any of their respective Representatives)
advise the Parent orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition
Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the material
terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the same.


 


(c)
The Company and the Shareholders agree that the rights and remedies for noncompliance with this Section 5.03 shall include
having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any
such breach or threatened breach shall cause irreparable injury to the Parent and that money damages would not provide an adequate
remedy to Parent.


 


Section
5.04 Notice of Certain Events.


 


(a)
From the date hereof until the Closing, the Company, on the one hand, and the Parent, on the other hand, shall promptly notify
the other in writing of:


 


(i)
any fact, circumstance, event, or action the existence, occurrence, or taking of which (A) has had, or would reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect (in which event the Company shall notify Parent)
or a Parent Material Adverse Effect (in which event Parent shall notify the Company) or (B) has resulted in, or could reasonably
be expected to result in, any representation or warranty made by the Company and/or the Shareholders or the Parent hereunder not
being true and correct, or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions
set forth in Section 7.01 to be satisfied;


 


(ii)
any notice or other communication received by such party from any Person alleging that the consent of such Person is or may be
required in connection with the transactions contemplated by this Agreement;


 


(iii)
any notice or other communication received by such party from any Governmental Authority in connection with the transactions contemplated
by this Agreement; and


 


(iv)
any Actions commenced or, to such party’s Knowledge, threatened against, relating to or involving, or otherwise affecting
the Company or its Affiliates that, if pending on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 3.17 or Section 4.06 (as applicable), or that relates to the consummation of the transactions contemplated
by this Agreement.


 






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(b)
The Parent’s receipt of information pursuant to this Section 5.04, unless provided in a writing prior to the Closing
from the Company or any of the Shareholders and, unless thereafter, but prior to the Closing, acknowledged in a writing from the
Parent to the Company and to each of the Shareholders, shall not operate as a waiver or otherwise affect any representation, warranty,
or agreement given or made by the Company and/or the Shareholders in this Agreement (including Section 8.02 and Section
9.01(b)) and shall not be deemed to amend or supplement the Disclosure Schedules.


 


Section
5.05 Confidentiality. From and after the Closing,
the Shareholders shall, and shall cause their respective Affiliates to, hold, and shall use their respective reasonable best efforts
to cause their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning
the Company, except to the extent that such information (a) is generally available to and known by the public through no fault
of any Shareholder, any of his or its Affiliates, or their respective Representatives or (b) is lawfully acquired by any Shareholder,
any of his or its Affiliates, or their respective Representatives from and after the Closing from sources that are not prohibited
from disclosing such information by a legal, contractual, or fiduciary obligation. If any Shareholder or any of his or its Affiliates
or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other
requirements of Law, the applicable Shareholder shall promptly notify the Parent in writing and shall disclose only that portion
of such information that the applicable Shareholder is advised by his or its counsel is legally required to be disclosed; provided,
that such Shareholder shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance
that confidential treatment will be accorded such information. Notwithstanding the foregoing, each Shareholder, his or its Affiliates,
and their respective shareholders, members, partners, owners, and Representatives may disclose and use Confidential Information
to or for the purpose of any of the following: (i) to assist the Shareholders’ Representative in the performance of his
duties and the exercise of his rights under this Agreement; (ii) to perform or fulfill any obligation pursuant to this Agreement
and/or the other agreements and instruments executed or delivered in connection herewith; and/or (iii) to (A) fulfill such Persons’
and their respective Affiliates’ and Representatives’ obligations under applicable Laws, (B) engage in research, analysis,
planning, and structuring relating to Taxes, investment, financial planning and/or estate planning, (C) prepare, review, and/or
file Tax returns, or participate in or defend any audit, review, assessment, or Action relating to Taxes, and/or (D) investigate,
assess, assert, initiate, maintain, enforce, or defend any right, Action or Losses (including those arising out of or in connection
with this Agreement and/or the transactions contemplated hereby); provided, that, prior to making any such disclosure pursuant
to subparts (i) through (iii) foregoing to any Person who is not otherwise bound by a professional, fiduciary or contractual obligation
of confidentiality with respect to such information, each relevant Shareholder and/or the Shareholders’ Representative (as
applicable) shall (x) obtain written confirmation from any Person to whom such disclosure is to be made that such Person will
comply with the provisions of this Section 5.05 and (y) deliver such written confirmation to the Parent.


 






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Section
5.06 Non-competition; Non-solicitation.


 


(a)
For a period of three years commencing on the Closing Date (the “Restricted Period”), the Shareholders shall
not, and shall not permit any of their respective Affiliates, directly or indirectly, to (i) engage in or assist others in engaging
in the Restricted Business in the Territory; (ii) have an interest in any Person (other than the Company) that engages directly
or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee,
principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships
(whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding
the foregoing, any Shareholder may own, directly or indirectly, solely as an investment, securities of any Person traded on any
national securities exchange if such Shareholder is not a controlling Person of, or a member of a group which controls, such Person
and does not, directly or indirectly, own five percent or more of any class of securities of such Person.


 


(b)
During the Restricted Period, the Shareholders shall not, and shall not permit any of their respective Affiliates, directly or
indirectly, to hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any
such employee who has left such employment, except pursuant to a general solicitation that is not directed specifically to any
such employees; provided, that nothing in this Section 5.06(b) shall prevent any Shareholder or any of his or its
Affiliates from hiring (i) any employee whose employment has been terminated by the Company or the Parent or (ii) after 180 days
from the date of termination of employment, any employee whose employment has been terminated by the employee.


 


(c)
During the Restricted Period, the Shareholders shall not, and shall not permit any of their respective Affiliates, directly or
indirectly, to solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients
or customers of the Company for purposes of diverting their business or services from the Company.


 


(d)
The Shareholders acknowledge that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm
to the Parent, for which monetary damages would not be an adequate remedy, and hereby agree that in the event of a breach or a
threatened breach by any Shareholder of any such obligations, the Parent shall, in addition to any and all other rights and remedies
that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining
order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction
(without any requirement to post bond).


 


(e)
The Shareholders acknowledge that the restrictions contained in this Section 5.06 are reasonable and necessary to protect
the legitimate interests of the Parent and constitute a material inducement to the Parent to enter into this Agreement and consummate
the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever
be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction,
then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction
to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained
in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability
of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions
hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant
or provision in any other jurisdiction.


 






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Section
5.07 Resignations. The Company shall deliver to the Parent written resignations,
effective as of the Closing Date, of the officers and directors of the Company requested by the Parent at least five Business
Days prior to the Closing Date.


 


Section
5.08 Governmental Approvals and Consents.


 


(a)
Each party hereto shall, as promptly as possible, (i) make, or cause or be made, all filings and submissions required under any
Law applicable to such party or any of its or his Affiliates and (ii) use reasonable best efforts to obtain, or cause to be obtained,
all consents, authorizations, orders, and approvals from all Governmental Authorities that may be or become necessary for its
execution and delivery of this Agreement and the performance of its or his obligations pursuant to this Agreement. Each party
shall cooperate fully with the other party and its or his Affiliates in promptly seeking to obtain all such consents, authorizations,
orders, and approvals. The parties hereto shall not intentionally take any action that will have the effect of delaying, impairing,
or impeding the receipt of any required consents, authorizations, orders, and approvals.


 


(b)
The Company and the Shareholders shall use reasonable best efforts to give all notices to, and obtain all consents from, all third
parties that are described in Schedule 3.05.


 


(c)
Without limiting the generality of the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties
hereto shall use all reasonable best efforts to:


 


(i)
respond to any inquiries by any Governmental Authority regarding antitrust or other matters with respect to the transactions contemplated
by this Agreement;


 


(ii)
avoid the imposition of any order or the taking of any action that would restrain, alter, or enjoin the transactions contemplated
by this Agreement; and


 


(iii)
in the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated
by this Agreement has been issued, to have such Governmental Order vacated or lifted.


 


(d)
If any consent, approval, or authorization necessary to preserve any right or benefit under any Contract to which the Company
is a party is not obtained prior to the Closing, the Shareholders shall, subsequent to the Closing, cooperate with the Parent
and the Company in attempting to obtain such consent, approval, or authorization as promptly thereafter as practicable. If such
consent, approval, or authorization cannot be obtained, the Shareholders shall use their reasonable best efforts to provide the
Company with the rights and benefits of the affected Contract for the term thereof, and, if the Shareholders provide such rights
and benefits, the Company shall assume all obligations and burdens thereunder.


 






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(e)
All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by
or on behalf of any party hereto before any Governmental Authority or the staff or regulators of any Governmental Authority in
connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between
the Company with Governmental Authorities in the ordinary course of business consistent with past practice, any disclosure which
is not permitted by Law, or any disclosure containing confidential information) shall be disclosed to the other party hereunder
in advance of any filing, submission, or attendance, it being the intent that the parties will consult and cooperate with one
another and consider in good faith the views of one another in connection with any such analyses, appearances, meetings, discussions,
presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect
to any meeting, discussion, appearance, or contact with any Governmental Authority or the staff or regulators of any Governmental
Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such
meeting, discussion, appearance, or contact.


 


(f)
Notwithstanding the foregoing, nothing in this Section 5.08 shall require, or be construed to require, any party to this
Agreement or any of such party’s Affiliates to agree to (i) sell, hold, divest, discontinue, or limit, before or after the
Closing Date, any assets, businesses, or interests of the Parent, the Company, or any of their respective Affiliates; (ii) pay
any amounts (other than the payment of filing fees and expenses and fees of counsel); (iii) commence or defend any litigation;
(iv) any limitation on, or changes or restrictions in, the operations of any assets, businesses, or interests of the Parent’s
or any of its Affiliate’s businesses; or (v) any material modification or waiver of the terms and conditions of this Agreement,
including any waiver any of the conditions set forth in ARTICLE VII.


 


Section
5.09 Directors’ and Officers’
Indemnification and Insurance.


 


(a)
The Parent, Merger Sub No. 1, and Merger Sub No. 2 agree that all rights to indemnification,
advancement of expenses, and exculpation by the Company now existing in favor of each Person who is now, or has been at any time
prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company or any subsidiary of
the Company, or any fiduciary of a Benefit Plan, employee stock ownership plan or other similar plan established, maintained or
contributed to by the Company or any subsidiary of the Company (each, a “D&O Indemnified Party”) as provided
in the Organizational Documents of the Company, in each case as in effect on the date of this Agreement, or pursuant to any other
Contracts in effect on the date hereof and disclosed in Schedule 5.09, shall be assumed by the Surviving Entity in the
Merger, without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in
accordance with their terms and, in the event that any proceeding is pending or asserted or any claim made during such period,
until the final disposition of such proceeding or claim.


 






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(b)
For six years after the Effective Time, to the fullest extent permitted under applicable Law, the Parent and the Surviving Entity
(the “D&O Indemnifying Parties”) shall indemnify, defend, and hold harmless each D&O Indemnified Party
against all losses, claims, damages, liabilities, fees, expenses, judgments, and fines arising in whole or in part out of actions
or omissions in their capacity as such occurring at or prior to the Effective Time (including in connection with the transactions
contemplated by this Agreement), and shall reimburse each D&O Indemnified Party for any legal or other expenses reasonably
incurred by such D&O Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities,
fees, expenses, judgments, and fines as such expenses are incurred, subject to the Surviving Entity’s receipt of an undertaking
by such D&O Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined
in a final and non-appealable judgment of a court of competent jurisdiction that such D&O Indemnified Party is not entitled
to be indemnified under applicable Law; provided, however, that the Surviving Entity will not be liable for any settlement
effected without the Surviving Entity’s prior written consent (which consent shall not be unreasonably withheld, delayed,
denied, or conditioned).


 


(c)
Reserved.


 


(d)
The obligations of the Parent and the Surviving Entity under this Section 5.09 shall survive the consummation of the Merger
and shall not be terminated or modified in such a manner as to affect adversely any D&O Indemnified Party to whom this Section
5.09 applies without the consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified
Parties to whom this Section 5.09 applies shall be third-party beneficiaries of this Section 5.09, each of whom
may enforce the provisions of this Section 5.09).


 


(e)
In the event the Parent, the Surviving Entity, or any of their respective successors or assigns (i) consolidates with or merges
into any other Person and shall not be the continuing or Surviving Entity or entity in such consolidation or merger or (ii) transfers
all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be
made so that the successors and assigns of the Parent or the Surviving Entity, as the case may be, shall assume all of the obligations
set forth in this Section 5.09. The agreements and covenants contained herein shall not be deemed to be exclusive of any
other rights to which any D&O Indemnified Party is entitled, whether pursuant to Law, Contract, or otherwise. Nothing in this
Agreement is intended to, shall be construed to, or shall release, waive, or impair any rights to directors’ and officers’
insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors, and
employees, it being understood and agreed that the indemnification provided for in this Section 5.09 is not prior to, or
in substitution for, any such claims under any such policies.


 


Section
5.10 Closing Conditions. From the date hereof
until the Closing, each party hereto shall use reasonable best efforts to take such actions as are necessary to expeditiously
satisfy the closing conditions set forth in ARTICLE VII.


 






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Section
5.11 Public Announcements. Unless otherwise
required by applicable Law or stock exchange requirements (based upon the reasonable advice of counsel), no party to this Agreement
shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate
with any news media without the prior written consent of the other party (which consent shall not be unreasonably withheld, delayed,
denied, or conditioned), and the parties shall cooperate as to the timing and contents of any such announcement.


 


Section
5.12 Affiliate Agreements. Prior to the Closing, the Company shall terminate
all Affiliate Agreements set forth on Schedule 5.12 with respect to which there could be further or continuing liability or obligation
on the part of the Parent or any of its Affiliates (including, after the Closing, the Company) without any further or continuing
liability on the part of the Parent or any of its Affiliates (including, after the Closing, the Company).


 


Section
5.13 Audited Financial Statements. The Company and the Shareholders
acknowledge and agree that they shall provide reasonable access to an independent certified public accounting firm that is registered
under the Public Company Accounting Oversight Board and acceptable to the Parent and the Company to audit the Annual Financial
Statements (such audited Annual Financial Statements, the “Audited Financial Statements”) and provide Parent
ant the Company with such Audited Financial Statements and the audit report of such certified public accounting firm related thereto.


 


Section
5.14 Further Assurances. At and after the Effective Time, the officers and directors
of the Surviving Entity shall be authorized to execute and deliver, in the name and behalf of the Company, Merger Sub No. 1, or
Merger Sub No. 2, any deeds, bills of sale, assignments, or assurances and to take and do, in the name and on behalf of the Company,
Merger Sub No. 1, or Merger Sub No. 2, any other actions and things to vest, perfect, or confirm of record or otherwise in the
Surviving Entity any and all right, title, and interest in, to, and under any of the rights, properties, or assets of the Company
acquired or to be acquired by the Surviving Entity as a result of, or in connection with, the Merger.


 


ARTICLE
VI

Tax matters


 


Section
6.01 Taxes. All Taxes on or with respect to
the Company that are attributable to any Pre-Closing Tax Period shall be for the sole accounts, jointly and severally, of the
Shareholders. All Taxes on or with respect to the Company that are attributable to any Post-Closing Tax Period shall be for the
sole account of the Parent.


 


Section
6.02 Certain Tax Covenants.


 


(a)
The parties hereto shall cooperate with each other and use their respective reasonable best efforts in taking actions, including
with respect to the filing of any Tax Returns, to attempt to qualify the Merger as a tax-free reorganization pursuant to Section
368(a) of the Code and that at least 40% of the aggregate Merger Consideration paid to the Shareholders in exchange for the Company
Shares is properly treated, for U.S. federal income tax purposes, as paid in Parent Shares, taking into account the effect of
the anticipated mix of Closing Parent Shares and Cash Consideration associated with (i) the Closing Merger Consideration, (ii)
Parent Shares or cash to be paid in connection with any Escrow Agreement, (iii) any reacquisition by Parent of Parent Shares treated
as delivered in the Merger, and (iv) any similar arrangements.


 






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(b)
Without the prior written consent of the Parent, which may be withheld, delayed, denied, or conditioned, prior to the Closing,
the Company, its Representatives, and the Shareholders shall not, to the extent it may materially adversely affect, or relate
to, the Company, (i) make, change, or rescind any affirmative Tax election other than in the ordinary course of business, (ii)
amend any Tax Return, or (iii) take any position on any material Tax Return, take any action, omit to take any action, or enter
into any other transaction; in each case, other than in the ordinary course of business, and in each case, that would have the
effect of increasing the Tax liability or reducing any Tax asset of the Parent or the Surviving Entity in respect of any Post-Closing
Tax Period.


 


(c)
All transfer, documentary, sales, use, stamp, registration, value added, and other such Taxes and fees (including any penalties
and interest) incurred in connection with this Agreement shall be borne and paid by the Parent when due. The Parent shall, at
its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and the Shareholders shall cooperate
with respect thereto as necessary).


 


Section
6.03 Termination of Existing Tax Indemnity, Tax Sharing, and Tax Allocation Agreements.
Any and all existing, whether written or not, Tax indemnity agreements, Tax sharing agreements, Tax allocation agreements,
and any similar agreement binding upon the Company, the principal subject of which is Tax, shall be terminated as of the Closing
Date and all payments thereunder settled immediately prior to the Closing Date with no payments permitted to be made thereunder
on and after the Closing Date. After the Closing Date, neither the Company nor the Parent, nor any of the Parent’s Affiliates
and their respective Representatives (other than the Shareholders), shall have any further rights or liabilities thereunder.


 


Section
6.04 Tax Returns.


 


(a)
The Company shall prepare and timely file, or cause to be prepared and timely filed, all Tax Returns required to be filed by it
that are due on or before the Closing Date (taking into account any extensions), and shall timely pay all Taxes that are due and
payable on or before the Closing Date. Any such Tax Return shall be prepared in a manner consistent with past practice (unless
otherwise required by Law). The Company shall provide the Parent with copies of any income or other material Tax Return, together
with appropriate supporting information and schedules, at least 45 days prior to the due date (including extensions) for the filing
of any such Tax Return, and the Parent shall have the right to review and comment on any such Tax Return prior to the filing thereof.


 


(b)
The Parent shall prepare and timely file, or
cause to be prepared and timely filed, all Tax Returns required to be filed by the Company after the Closing Date with respect
to a Pre-Closing Tax Period and for any Straddle Period, and all other Tax Returns of the Company for which the Shareholders could
have liability under this Agreement, including pursuant to an indemnification obligation, and the Parent shall cause the Company
to pay all taxes reflected on all such tax Returns. Any such Tax Return shall be prepared in a manner consistent with past practice
(unless otherwise required by Law) and, if it is an income or other material Tax Return, shall be submitted by the Parent to the
Shareholders’ Representative (together with schedules, statements, and, to the extent requested by the Shareholders’
Representative, supporting documentation) at least 45 days prior to the due date (including extensions) of such Tax Return. If
the Shareholders’ Representative objects to any item on any such Tax Return that relates to a Pre-Closing Tax Period, it
shall, within 10 days after delivery of such Tax Return, notify the Parent in writing that it so objects, specifying with particularity
any such item and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered,
the Parent and the Shareholders’ Representative shall negotiate in good faith and use their reasonable best efforts to resolve
such items. If the Parent and the Shareholders’ Representative are unable to reach such agreement within 10 days after receipt
by the Parent of such notice, the disputed items shall be resolved by the Independent Accountant and any determination by the
Independent Accountant shall be final. The Independent Accountant shall resolve any disputed items within 20 days of having the
item referred to it pursuant to such procedures as it may require. If the Independent Accountant is unable to resolve any disputed
items before the due date for such Tax Return, the Tax Return shall be filed as prepared by the Parent and then amended to reflect
the Independent Accountant’s resolution. The costs, fees, and expenses of the Independent Accountant shall be borne one-half
by the Parent and one-half by the Shareholders. The preparation and filing of any Tax Return of the Company that does not relate
to a Pre-Closing Tax Period or Straddle Period shall be exclusively within the control of the Parent.


 






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Section
6.05 Straddle Period. In the case of Taxes
that are payable with respect to a taxable period that begins on or before and ends after the Closing Date (each such period,
a “Straddle Period”), the portion of any such Taxes that are treated as Pre-Closing Taxes for purposes of this
Agreement shall be:


 


(a)
in the case of Taxes (i) based upon, or related to, income, receipts, profits, wages, capital, or net worth, (ii) imposed in connection
with the sale, transfer, or assignment of property, or (iii) required to be withheld, deemed equal to the amount that would be
payable if the taxable year ended on the Closing Date; and


 


(b)
in the case of other Taxes, deemed to be the amount of such Taxes for the entire period multiplied by a fraction, the numerator
of which is the number of days in the period ending on the Closing Date and the denominator of which is the number of days in
the entire period.


 


Section
6.06 Closing Date Taxes. Notwithstanding any
other provision of this Agreement, if any Tax shall arise out of an action taken by the Parent or the Surviving Entity on the
Closing Date (but after the Closing time on the Closing Date), and if, and only if, such an action (i) was undertaken outside
of the ordinary course of business and (ii) was not expressly contemplated by this Agreement, then, and only then, shall such
action be deemed to have arisen in a Post-Closing Tax Period and not in a Pre-Closing Tax Period and the Tax shall be borne by
the Parent.


 






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Section
6.07 Cooperation and Exchange of Information. The
Shareholders’ Representative and the Parent shall provide each other with such cooperation and information as either of
them reasonably may request of the other in filing any Tax Return pursuant to this ARTICLE VI or in connection with any
audit or other proceeding in respect of Taxes of the Company. Such cooperation and information shall include providing copies
of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers, and documents relating
to rulings or other determinations by Tax Authorities. Each of the Shareholders and the Parent shall retain all Tax Returns, schedules
and work papers, records, and other documents in his or its possession relating to Tax matters of the Company or Taxes of the
Shareholders related to the Company for any taxable period beginning on or before the Closing Date until the expiration of the
statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions
except to the extent notified by the other party in writing of such extensions for the respective Tax periods. Prior to transferring,
destroying, or discarding any Tax Returns, schedules and work papers, records, and other documents in its or his possession relating
to Tax matters of the Company for any taxable period beginning before the Closing Date and for which the statute of limitations
has not run, the Shareholders or the Parent (as the case may be) shall provide the other party with reasonable written notice
and offer the other party the opportunity to take custody of such materials.


 


Section
6.08 Tax Indemnities.


 


(a)
Subject to the provisions of Section 8.04 through Section 8.10, the Shareholders shall, jointly and severally, be responsible
for and shall indemnify and hold the Company, the Parent, the Surviving Entity, and each other Parent Indemnitee harmless against
(i) any and all Taxes imposed on or payable by the Company for any Pre-Closing Tax Period; (ii) any and all Taxes attributable
to the Pre-Closing Tax Period for which the Company is held liable under Treasury Regulation Section 1.1502-6; (iii) any and all
Taxes of any Person other than the Company imposed on the Company as a transferee, indemnitor, or successor, by Contract, pursuant
to any Tax law, or otherwise which Taxes relate solely to an event or transaction occurring or relating to the Pre-Closing Tax
Period or the agreements referenced in Section 6.03; (iv) any and all Losses incurred or sustained by, or imposed upon,
any Parent Indemnitee based upon, arising out of, with respect to, or by reason of any breach or inaccuracy of any of the representations
set forth in Section 3.22; and (v) any and all costs and expenses incurred by any Parent Indemnitee in connection with
any and all Actions regarding any Taxes for which any Shareholder is required to reimburse the Parent Indemnitees pursuant to
this Section 6.08. For clarity and without limitation, each of the parties to this Agreement acknowledges and agrees that
the phrase “Pre-Closing Tax Period” includes, and shall be deemed to include, the two-step merger process contemplated
by this Agreement that the parties anticipate will result in the Closing of the Merger, such that the Shareholders’ indemnification
obligations as set forth in this Agreement that are in favor of the Company, the Parent, the Surviving Entity, and each other
Parent Indemnitee in respect of the Merger will be effective as of the date of this Agreement. The parties to this Agreement acknowledge
that the two-step structure of the Merger is at the request of and for the benefit of the Shareholders. Accordingly, their indemnification
obligations herein are intentionally broad and intentionally are designed ensure that the Shareholders, jointly and severally,
shall be responsible for and shall indemnify and hold the Company, the Parent, the Surviving Entity, and each other Parent Indemnitee
harmless against any Pre-Closing Tax Period liability in respect of the transactions contemplated by the Merger.


 






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(b)
Payment of any amount due under this Section 6.08 shall be made within 10 days following the Shareholders’ Representative’s
receipt of written notice from the Company or the Parent regarding the same. Subject to Section 6.02(a), the Shareholders
acknowledge that the Parent reserves the right to require that any payment to be made hereunder not be made with any or all of
the Escrow Shares.


 


(c)
Except for Section 8.06, Section 8.07, Section 8.08, Section 8.09, and Section 8.10, this Section
6.07 shall be the sole provision governing indemnities for Taxes and the breach or inaccuracy of any of the representations
set forth in Section 3.22.


 


Section
6.09 Control of Audit or Tax Litigation.


 


(a)
The Parent will control any and all Actions regarding
any Taxes for which any Shareholder is required to indemnify the Parent, the Company, or any other Parent Indemnitee pursuant
to Section 6.07. The Parent will (and will cause its Affiliates to) (i) keep the Shareholders’ Representative reasonably
informed and consult in good faith with Shareholders’ Representative with respect to any issue relating to such Action,
(ii) permit the Shareholders’ Representative to review and comment on any documents in connection with such Action and take
any reasonable comments into consideration before filing any document, (iii) obtain the prior written consent of the Shareholders’
Representative (which consent shall not be unreasonably withheld, delayed, denied, or conditioned) before entering into any settlement
of any such Action or ceasing to defend such Action, and (iv) allow the Shareholders’ Representative, at its expense, to
participate in the defense of such claim and to employ counsel of its choice for such purpose. If the Shareholders’ Representative
or any Shareholder is subject to or receives notice of an audit of any Shareholder or other Action against any Shareholder relating
to Taxes and such audit or other Action would reasonably be expected to (a) have an adverse effect on the Parent, the Surviving
Entity, or the Surviving Entity’s assets or (b) subject the Parent or the Surviving Entity to any liability, in each case
as a result of such audit or other Action, then the Shareholders’ Representative will promptly notify the Parent of the
same in writing upon receipt of such notice or upon becoming aware of such audit or other Action and will keep the Parent timely
apprised of any developments in any such audit or litigation.


 


Section
6.10 Tax Refunds. If the Company receives any Tax refund attributable to a Pre-Closing Tax Period, the amount of such refund
shall be paid to the Shareholders within 10 days of receipt thereof. Tax refund for this purpose includes any amount that the
Company or the Parent could elect to receive as a refund but instead is applied to reduce the Company’s Taxes during any
Post-Closing Tax Period.


 


Section
6.11 No Tax Return Amendments. The Parent shall not amend any Tax Return of the Company relating to a Pre-Closing Tax Period
without the prior written consent of the Shareholders’ Representative, which consent shall not be unreasonably withheld,
delayed, denied, or conditioned.


 


Section
6.12 Survival. Notwithstanding anything in this Agreement to the contrary, the
provisions of Section 3.22 and this ARTICLE VI shall survive for the full period of all applicable statutes of limitations
(giving effect to any waiver, mitigation, or extension thereof) plus 60 days.


 


Section
6.13 Overlap. To the extent that any obligation
or responsibility pursuant to ARTICLE VIII may overlap with an obligation or responsibility pursuant to this ARTICLE
VI, the provisions of this ARTICLE VI shall govern.


 






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ARTICLE
VII

Conditions to closing


 


Section
7.01 Conditions to Obligations of the Parent, Merger Sub No.1, and Merger Sub No. 2. The
obligations of the Parent, Merger Sub No. 1, and Merger Sub No. 2 to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment or the Parent’s waiver, at or prior to the Closing, of each of the following conditions:


 


(a)
Other than the representations and warranties of the Company and/or the Shareholders contained in Section 3.01, Section
3.02, Section 3.03, and Section 3.24, the representations and warranties of the Company and/or the Shareholders
contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects
(in the case of any representation or warranty qualified by materiality or Company Material Adverse Effect) or in all material
respects (in the case of any representation or warranty not qualified by materiality or Company Material Adverse Effect) on and
as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those
representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as
of that specified date in all respects). The representations and warranties of the Company and/or the Shareholders contained in
Section 3.01, Section 3.02, Section 3.03, and Section 3.24 shall be true and correct in all respects
on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except
those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined
as of that specified date in all respects).


 


(b)
The Company and the Shareholders shall have duly performed and complied in all material respects with all agreements, covenants,
and conditions required by this Agreement to be performed or complied with by them prior to or on the Closing Date; provided,
that, with respect to agreements, covenants, and conditions that are qualified by materiality, the Company and the Shareholders
shall have performed such agreements and covenants, as so qualified, in all respects.


 


(c)
No Action shall have been commenced against the Parent, Merger Sub No. 1, Merger Sub No. 2, the Company, or any Shareholder that
would prevent the Closing. No Governmental Authority shall have enacted, issued, promulgated, enforced, or entered any final,
non-appealable Governmental Order that is in effect and has the effect of making the transactions contemplated by this Agreement
illegal, otherwise restraining or prohibiting consummation of such transactions, or causing any of the transactions contemplated
hereunder to be rescinded following completion thereof.


 






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(d)
All approvals, consents, and waivers that are required to be listed on Schedule 7.01(d) shall have been received, and executed
counterparts thereof shall have been delivered to the Parent at or prior to the Closing.


 


(e)
From the date of this Agreement, there shall not have occurred any Company Material Adverse Effect, nor shall any event or events
have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result
in a Company Material Adverse Effect.


 


(f)
The Company shall have delivered each of the closing deliverables set forth in Section 2.03(a).


 


(g)
Employment agreements by and between the Company and each of the Key Employees, in the forms mutually satisfactory to the parties
thereto and the Parent, shall have been duly executed by each of the Key Employees and the Company, as applicable, and true and
complete copies thereof shall have been delivered to the Parent.


 


(h)
The Parent Public Offering shall have been consummated.


 


Section
7.02 Conditions to Obligations of the Company and the Shareholders. The
obligations of the Company and the Shareholders to consummate the transactions contemplated by this Agreement shall be subject
to the fulfillment or the Company’s waiver, at or prior to the Closing, of each of the following conditions:


 


(a)
Other than the representations and warranties of the Parent, Merger Sub No. 1, and Merger Sub No. 2 contained in Section 4.01
and Section 4.04, the representations and warranties of the Parent and Merger Sub contained in this Agreement and any
certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation
or warranty qualified by materiality or Parent Material Adverse Effect) or in all material respects (in the case of any representation
or warranty not qualified by materiality or Parent Material Adverse Effect) on and as of the date hereof and on and as of the
Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address
matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The
representations and warranties of the Parent, Merger Sub No. 1, and Merger Sub No. 2 contained in Section 4.01 and Section
4.04 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same
effect as though made at and as of such date.


 


(b)
The Parent, Merger Sub No. 1, and Merger Sub No. 2 shall have duly performed and complied in all material respects with all agreements,
covenants, and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; provided,
that, with respect to agreements, covenants, and conditions that are qualified by materiality, the Parent, Merger Sub No.
1, and Merger Sub No. 2 shall have performed such agreements, covenants, and conditions, as so qualified, in all respects.


 






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(c)
No Action shall have been commenced against the Parent, Merger Sub No. 1, Merger Sub No. 2, the Company, or any Shareholder that
would prevent the Closing. No Governmental Authority shall have enacted, issued, promulgated, enforced, or entered any final,
non-appealable Governmental Order that is in effect and has the effect of making the transactions contemplated by this Agreement
illegal, otherwise restraining or prohibiting consummation of such transactions, or causing any of the transactions contemplated
hereunder to be rescinded following completion thereof.


 


(d)
From the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect, nor shall any event or events
have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result
in a Parent Material Adverse Effect.


 


(e)
The Parent shall have delivered each of the closing deliverables set forth in Section 2.03(b).


 


ARTICLE
VIII

Indemnification


 


Section
8.01 Survival. Subject to the limitations
and other provisions of this Agreement, the representations and warranties contained herein (other than any representations or
warranties contained in Section 3.22 which are subject to ARTICLE VI) shall survive the Closing and shall remain
in full force and effect until the date that is 15 months from the Closing Date; provided, that the representations and
warranties in Section 3.01(a), Section 3.02, Section 3.03, Section 3.24, Section 4.01, and
Section 4.04 (collectively, the “Fundamental Representations”) shall survive indefinitely. All covenants
and agreements of the parties contained herein (other than any covenants or agreements contained in ARTICLE VI, which are
subject to ARTICLE VI) shall survive the Closing until fully performed or for the period explicitly specified therein;
provided that covenants and agreements of the parties contained herein to be performed on or prior to the Closing Date
shall survive the Closing for a period of 39 months from the Closing Date. Notwithstanding the foregoing, any claims asserted
in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the Indemnified Party
to the Indemnifying Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the
expiration of the relevant representation, warranty, covenant, or agreement and such claims shall survive until finally resolved.


 


Section
8.02 Indemnification By the Shareholders. Subject
to the other terms and conditions of this ARTICLE VIII, from and after the Closing, the Shareholders, jointly and severally,
shall indemnify and defend each of the Parent and its Affiliates (including the Company and the Surviving Entity) and their respective
Representatives (collectively, the “Parent Indemnitees”) against, and shall hold each of them harmless from
and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Parent
Indemnitees based upon, arising out of, with respect to, or resulting from:


 


(a)
any inaccuracy in or breach of any of the representations or warranties of the Company and/or the Shareholders contained in this
Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement (other than
in respect of Section 3.22, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall
be pursuant to ARTICLE VI), as of the date such representation or warranty was made or as if such representation or warranty
was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the
inaccuracy in or breach of which will be determined with reference to such specified date);


 






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(b)
any breach or non-fulfillment of any covenant, agreement, undertaking, or obligation to be performed by the Company or any Shareholder
pursuant to this Agreement (other than any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking,
or obligation in ARTICLE VI, it being understood that the sole remedy for any such breach, violation, or failure shall
be pursuant to ARTICLE VI); or


 


(c)
any claim made by any Person relating to such Person’s rights with respect to the Merger Consideration or the calculations
and determinations set forth in the Merger Consideration Certificate.


 


Section
8.03 Indemnification By the Parent. Subject
to the other terms and conditions of this ARTICLE VIII, from and after the Closing, the Parent shall indemnify and defend
each Shareholder and its or his Affiliates and their respective Representatives (collectively, the “Shareholder Indemnitees”)
against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses
incurred or sustained by, or imposed upon, the Shareholder Indemnitees based upon, arising out of, with respect to, or resulting
from:


 


(a)
any inaccuracy in or breach of any of the representations or warranties of the Parent, Merger Sub No. 1, and Merger Sub No. 2
contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Parent, Merger Sub No. 1, or
Merger Sub No. 2 pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation
or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified
date, the inaccuracy in or breach of which will be determined with reference to such specified date); or


 


(b)
any breach or non-fulfillment of any covenant, agreement, undertaking, or obligation to be performed by the Parent, Merger Sub
No. 1, or Merger Sub No. 2 pursuant to this Agreement (other than ARTICLE VI, it being understood that the sole remedy
for any such breach thereof shall be pursuant to ARTICLE VI).


 


Section
8.04 Certain Limitations. The indemnification
provided for in ARTICLE VI, Section 8.02 and Section 8.03 shall be subject to the following limitations:


 


(a)
Subject to the provisions of Section 8.04(c), the Shareholders shall not be liable to the Parent Indemnitees for indemnification
under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a)
exceeds $150,000 (the “Basket”), in which event the Shareholders shall be required to pay or be liable for
all such Losses from the first such dollar. Subject to the provisions of Section 8.04(c), the aggregate liability of the Shareholders
for all Losses subject to indemnification under Section 8.02(a) shall be limited to $2,500,000 (the “Cap”).


 






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(b)
The Parent shall not be liable to the Shareholder Indemnitees for indemnification under Section 8.03(a) until the aggregate
amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event the Parent
shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which
the Parent shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.


 


(c)
Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply
to Losses based upon, arising out of, with respect to, or resulting from fraud or any inaccuracy in or breach of any of the Fundamental
Representations.


 


(d)
Each Indemnified Party shall take, and cause each of its Affiliates to take, all reasonable steps to mitigate any Losses subject
to indemnification pursuant to ARTICLE VI, Section 8.02 or 8.03, upon such time as the Indemnified Party or its Affiliates becomes
aware or reasonably should have become aware of the facts, events or circumstances giving rise to or resulting in such Losses.


 


(e)
In the event that one or more Indemnifying Party pays any Losses of an Indemnified Party pursuant to this Agreement, the Indemnifying
Party, on behalf of itself and its Affiliates, hereby assigns and subrogates to such Indemnifying Parties all claims, rights,
causes of action and Actions that the Indemnified Party or its Affiliates may have against any Person (other than an Affiliate
of the Indemnified Party) with respect to and to the extent of such Losses paid or payable by the Indemnifying Parties, or the
facts, events or circumstances giving rise to such Losses. In the event any insurance proceeds, indemnity, contribution or any
other payments or amounts are received or recovered by an Indemnified Party or its Affiliates with respect to Losses paid by one
or more Indemnifying Party, the Indemnified Party shall promptly pay such amounts to each such Indemnifying Party pro rata, in
proportion to the amount of such Losses originally paid by such Indemnifying Parties.


 


(f)
Notwithstanding anything to the contrary in this Agreement, an Indemnified Party shall, promptly upon receipt of relevant insurance
proceeds or other indemnity, contribution, or other similar payment (a “Third-party Payment”) in respect of
a Loss, tender such Third-party Payment to the Indemnifying Parties in respect of such Loss if, and only if, the Indemnified Party
had previously received full indemnification for such Loss from such Indemnifying Parties; provided, that the Indemnified
Party shall not be required to initiate litigation to recover such insurance proceeds, other indemnity, contribution or other
similar payments.


 


Section
8.05 Indemnification Procedures. The party
making a claim under this ARTICLE VIII is referred to as the “Indemnified Party,” and the party against
whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnifying Party.” For
purposes of this ARTICLE VIII, (i) if the Parent (or any other Parent Indemnitee) comprises the Indemnified Party, any
references to the Indemnifying Party (except provisions relating to an obligation to make payments) shall be deemed to refer to
the Shareholders’ Representative and (ii) if the Parent comprises the Indemnifying Party, any references to the Indemnified
Party shall be deemed to refer to the Shareholders’ Representative. Any payment received by the Shareholders’ Representative
as the Indemnified Party shall be distributed to the Shareholders entitled to such indemnification in accordance with this Agreement.


 






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(a)
Third-party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought
by, or discloses or admits any Liability, Indebtedness or Encumbrance to or accruing in favor of, any Person who is not a party
to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-party Claim”)
against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this
Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event
not later than 30 calendar days after receipt of such notice of such Third-party Claim. The failure to give such prompt written
notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that
the Indemnifying Party is prejudiced or forfeits rights or defenses by reason of such failure. Such notice by the Indemnified
Party shall describe the Third-party Claim in reasonable detail, shall include copies of all material written evidence thereof,
and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified
Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to
assume the defense of, any Third-party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own
counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that, if the indemnifying Party
is any Shareholder, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third-party Claim
that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Company or (y) seeks an injunction
or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-party
Claim, subject to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute,
defend, appeal, or make counterclaims pertaining to any such Third-party Claim in the name and on behalf of the Indemnified Party.
The Indemnified Party shall have the right to participate in the defense of any Third-party Claim with counsel selected by it
subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall
be at the expense of the Indemnified Party; provided, that, if in the reasonable opinion of counsel to the Indemnified
Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available
to the Indemnifying Party or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party
that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified
Party. If the Indemnifying Party elects not to compromise or defend such Third-party Claim, fails to promptly notify the Indemnified
Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such
Third-party Claim, the Indemnified Party may, subject to Section 8.05(b), pay, compromise, and defend such Third-party
Claim and seek indemnification for any and all Losses based upon, arising from, or resulting from such Third-party Claim. The
Shareholders and the Parent shall cooperate with each other in all reasonable respects in connection with the defense of any Third-party
Claim, including making available records relating to such Third-party Claim and furnishing, without expense (other than reimbursement
of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably
necessary for the preparation of the defense of such Third-party Claim.


 






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(b)
Settlement of Third-party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not
enter into settlement of any Third-party Claim without the prior written consent of the Indemnified Party, except as provided
in this Section 8.05(b). If a firm offer is made to settle a Third-party Claim without leading to liability or the creation
of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional
release of each Indemnified Party from all liabilities and obligations in connection with such Third-party Claim and the Indemnifying
Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified
Party. If the Indemnified Party fails to consent to such firm offer within 10 days after its receipt of such notice, the Indemnified
Party may continue to contest or defend such Third-party Claim and in such event, the maximum liability of the Indemnifying Party
as to such Third-party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to
such firm offer and also fails to assume defense of such Third-party Claim, the Indemnifying Party may settle the Third-party
Claim upon the terms set forth in such firm offer to settle such Third-party Claim. If the Indemnified Party has assumed the defense
pursuant to Section 8.05(a), it shall not admit, take any action that would cause the entry of a default judgement with
respect to, or agree to any settlement of, any Third-party Claim without the written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld, delayed, denied, or conditioned).


 


(c)
Direct Claims. Any Action by an Indemnified Party on account of a Loss that does not result from a Third-party Claim (a
“Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt
written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim.
The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations,
except and only to the extent that the Indemnifying Party is prejudiced by reason of such failure. Such notice by the Indemnified
Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof, and
shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified
Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim.
The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance
alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim,
and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance
(including access to the Company’s premises and personnel and the right to examine and copy any accounts, documents, or
records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does
not so respond within such 30 day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the
Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject
to the provisions of this Agreement.


 


(d)
Tax Claims. Notwithstanding any other provision of this Agreement, the control of any Action in respect of Taxes of the
Company (including any such claim in respect of a breach of the representations and warranties in Section 3.22 hereof or
any breach or violation of or failure to fully perform any covenant, agreement, undertaking, or obligation in ARTICLE VI)
shall be governed exclusively by ARTICLE VI hereof.


 






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Section
8.06 Payments.


 


(a)
Once a Loss is agreed to by the Indemnifying Party or finally adjudicated in a non-appealable Governmental Order to be payable
pursuant to this ARTICLE VIII, the Indemnifying Party shall satisfy its obligations within 15 Business Days of such the
effective date of such final, non-appealable adjudication in the manner set forth in Subsection 8.06(b), below. The parties hereto
agree that, should an Indemnifying Party not make full payment of any such obligations within such 15 Business Day-period, any
amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable
adjudication to, but excluding, the date such payment has been made at a rate per annum equal to the lesser of 10% or the highest
rate permitted by applicable Law. Such interest shall be calculated daily on the basis of a 365 day year and the actual number
of days elapsed, without compounding.


 


(b)
Any Loss payable to a Parent Indemnitee pursuant to ARTICLE VI or ARTICLE VIII shall be satisfied as follows: (i) forty
percent (40%) of such Loss shall be satisfied with such number of the Escrow Shares, each such Escrow Share, for the purposes
hereof, shall be valued at the Parent Share Price (and, if Escrow Shares are, for any reason, not then available, for any other
method of satisfaction then requested by Parent) determined by dividing forty percent (40%) of the Loss by the Parent Share Price,
and (ii) sixty percent (60%) of such Loss shall be satisfied by the Shareholders (on a joint and several basis) by wire transfer
of immediately available funds in the aggregate amount of sixty percent (60%) of such Loss to the relevant Parent Indemnitee.


 


(c)
Upon the termination of the escrow of the Escrow Shares pursuant to the Escrow Agreement, the Escrow Agent shall distribute any
remaining Escrow Shares to the Shareholders in accordance with their Pro Rata Shares and the Escrow Agreement.


 


Section
8.07 Tax Treatment of Indemnification Payments. All
indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Merger Consideration
for Tax purposes, unless otherwise required by Law.


 


Section
8.08 Effect of Investigation. The representations,
warranties, and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto,
shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including
by any of its Representatives) or by reason of any claim that the Indemnified Party or any of its Representatives knew or should
have known that any such representation or warranty is, was, or might be inaccurate or by reason of the Indemnified Party’s
waiver of any condition set forth in Section 7.01 or Section 7.02, as the
case may be. Notwithstanding the above, this Section 8.08 shall be of no force or effect if such knowledge was the result
of a writing from the prospective Indemnifying Party to the prospective Indemnified Party prior to the Closing and the prospective
Indemnified Party in a writing to the prospective Indemnifying Part acknowledged such potential inaccuracy prior to the Closing.


 


Section
8.09 Exclusive Remedies. Subject to Section 5.06 and Section 10.11,
the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising
from fraud, criminal activity, or willful misconduct on the part of a party hereto in connection with the transactions contemplated
by this Agreement) for any breach of any representation, warranty, covenant, agreement, or obligation set forth herein or otherwise
relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in ARTICLE
VI and this ARTICLE VIII. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted
under Law, any and all rights, claims, and causes of action for any breach of any representation, warranty, covenant, agreement,
or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties
hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant
to the indemnification provisions set forth in ARTICLE VI and this ARTICLE VIII. Nothing in this Section 8.09
shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek
any remedy on account of any party’s fraudulent, criminal, or intentional misconduct.


 


Section
8.10 No Circular Recovery. Each Shareholder
hereby agrees that he or it will not make any claim for indemnification against the Parent, the Company, or the Surviving Entity
by reason of the fact that such Shareholder was a Representative of the Company or was serving as such for another Person at the
request of the Company (whether such claim is for Losses of any kind or otherwise and whether such claim is pursuant to any Law,
Organizational Document, Contract, or otherwise) with respect to any claim brought by a Parent Indemnitee against any Shareholder
relating to this Agreement or any of the transactions contemplated hereby. With respect to any claim brought by a Parent Indemnitee
against any Shareholder relating to this Agreement or any of the transactions contemplated hereby, each Shareholder expressly
waives any right of subrogation, contribution, advancement, indemnification, or other claim against the Company with respect to
any amounts such Shareholder is liable for pursuant to the indemnification provisions set forth in ARTICLE VI or this ARTICLE
VIII.


 






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ARTICLE
IX

Termination


 


Section
9.01 Termination. This Agreement may be terminated
at any time prior to the Closing:


 


(a)
by the mutual written consent of the Company and the Parent;


 


(b)
by the Parent by written notice to the Company if:


 


(i)
none of the Parent, Merger Sub No. 1, or Merger Sub No. 2 is then in material breach of any provision of this Agreement and there
has been a breach, inaccuracy in, or failure to perform any representation, warranty, covenant, or agreement made by the Company
or the Shareholders pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ARTICLE
VII and such breach, inaccuracy or failure has not been cured by the Company or the Shareholders within 10 days of the Company’s
receipt of written notice of such breach from Parent; or


 


(ii)
any of the conditions set forth in Section 7.01 shall not have been, or if it becomes reasonably apparent that any of such
conditions will not be, fulfilled by January 31, 2019, unless such failure shall be due to the failure of the Parent, Merger Sub
No. 1, or Merger Sub No. 2 to perform or comply with any of the covenants, agreements, or conditions hereof to be performed or
complied with by it prior to the Closing;


(c)
by the Company by written notice to the Parent if:


 


(i)
the Company and the Shareholders are not then in material breach of any provision of this Agreement and there has been a breach,
inaccuracy in, or failure to perform any representation, warranty, covenant, or agreement made by the Parent, Merger Sub No. 1,
or Merger Sub No. 2 pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ARTICLE
VII and such breach, inaccuracy, or failure has not been cured by the Parent, Merger Sub No. 1, or Merger Sub No. 2 within
10 days of the Parent’s receipt of written notice of such breach from the Company; or


 


(ii)
any of the conditions set forth in Section 7.02 shall not have been, or if it becomes reasonably apparent that any of such
conditions will not be, fulfilled by January 31, 2019, unless such failure shall be due to the failure of the Company or the Shareholders
to perform or comply with any of the covenants, agreements, or conditions hereof to be performed or complied with by it or them
prior to the Closing; or


 


(d)
by the Parent or the Company in the event that (i) there shall be any Law enacted that makes consummation of the transactions
contemplated by this Agreement illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued a Governmental
Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become
final and non-appealable.


 


Section
9.02 Effect of Termination. In the event of
the termination of this Agreement in accordance with this ARTICLE IX, this Agreement shall forthwith become void and there
shall be no liability on the part of any party hereto except:


(a)
as set forth in Section 5.05, ARTICLE IX, and ARTICLE X; and


 


(b)
that nothing herein shall relieve any party hereto from liability for any willful breach of any provision hereof.


 






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ARTICLE
X

Miscellaneous


 


Section
10.01 Expenses. Except as otherwise expressly
provided herein, all costs and expenses, including fees and disbursements of counsel, financial advisors, and accountants, incurred
in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred; provided, however, that the Parent shall be responsible for the
cost of the audit described in Section 5.13, whether or not the Closing shall have occurred.


 


Section
10.02 Notices. All notices, requests, consents, claims, demands, waivers, and
other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written
confirmation of receipt); (b) one Business Day after delivery to a nationally recognized overnight courier (receipt requested);
(c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the
recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the
date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the
respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in
accordance with this Section 10.02):


 


	 	(a)	If
    to the Parent, Merger Sub No. 1, or Merger Sub No. 2:
	 	 	 
	 	 	nFüsz,
    Inc.
	 	 	344
    South Hauser Boulevard
	 	 	Suite
    414
	 	 	Los
    Angeles, California 90036
	 	 	Attn:
    Rory Cutaia, President and CEO
	 	 	E-mail:
    rory@nfusz.com
	 	 	 
	 	 	with
    a copy (which shall not constitute notice) to:
	 	 	 
	 	 	Baker
    & Hostetler LLP
	 	 	600
    Anton Boulevard
	 	 	Suite
    900
	 	 	Costa
    Mesa, California 92626
	 	 	Attn:
    Randolf W. Katz, Esq.
	 	 	E-mail:
    rwkatz@bakerlaw.com
	 	 	 
	 	(b)	If
    to the Company: 
	 	 	 
	 	 	Sound
    Concepts, Inc.
	 	 	782
    S. Automall Drive
	 	 	Suite
    A
	 	 	American
    Fork, Utah 84003
	 	 	Attn:
    McKinley J. Oswald
	 	 	E-mail:
    mjo@soundconcepts.com



 






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	 	 	with
    a copy (which shall not constitute notice) to: 
	 	 	 
	 	 	Stoel
    Rives LLP
	 	 	201
    S. Main Street, Suite 1100
	 	 	Salt
    Lake City, Utah 84111
	 	 	Attn:
    Nathan W. Jones
	 	 	E-mail:
    nate.jones@stoel.com
	 	 	 
	 	(c)	If
    to the Shareholders or the Shareholders’
    Representative:
	 	 	 
	 	 	McKinley
    J. Oswald
	 	 	782
    S. Automall Drive
	 	 	Suite
    A
	 	 	American
    Fork, Utah 84003
	 	 	E-mail:
    mjo@soundconcepts.com
	 	 	 
	 	 	with
    a copy (which shall not constitute notice) to:
	 	 	 
	 	 	Stoel
    Rives LLP
	 	 	201
    S. Main Street, Suite 1100
	 	 	Salt
    Lake City, Utah 84111
	 	 	Attn:
    Nathan W. Jones
	 	 	E-mail:
    nate.jones@stoel.com


 


Section
10.03 Interpretation. For purposes of this
Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed
by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,”
“hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole.
Unless the context otherwise requires, references herein: (x) to Articles, Sections, Schedules, and Exhibits mean the Articles
and Sections of, and the Schedules hereto and delivered concurrently herewith, and the Exhibits to, this Agreement; (y) to an
agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified
from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time
to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed
without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or
causing any instrument to be drafted. The Schedules and Exhibits referred to herein shall be construed with, and as an integral
part of, this Agreement to the same extent as if they were set forth verbatim herein.


 


Section
10.04 Headings. The headings in this Agreement
are for reference only and shall not affect the interpretation of this Agreement.


 


Section
10.05 Severability. If any term or provision
of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability
shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in
any other jurisdiction. Except as provided in Section 5.06(e), upon such determination that any term or other provision
is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent possible.


 






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Section
10.06 Entire Agreement. This Agreement, including
the Side Letter, collectively constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject
matter contained herein and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with
respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement, including
the Side Letter, and those in the Exhibits or the Schedules (other than an exception expressly set forth as such in the Schedules),
the statements in the body of this Agreement, if and as modified by the Side Letter, will control.


 


Section
10.07 Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent
shall not be unreasonably withheld, delayed, denied, or conditioned. No assignment shall relieve the assigning party of any of
its obligations hereunder.


 


Section
10.08 No Third-party Beneficiaries. Except
as provided in Section 5.09, Section 6.07, and ARTICLE VIII, this Agreement is for the sole benefit of the
parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or
by reason of this Agreement.


 


Section
10.09 Amendment and Modification; Waiver. This
Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by
any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so
waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly
identified by such written waiver, whether of a similar or different character and whether occurring before or after that waiver.
No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate
or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.


 


Section
10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.


 


(a)
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Utah without giving effect
to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction).


 


(b)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND, TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL
ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
10.10(c).


 






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Section
10.11 Specific Performance. The parties hereto
agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they
are entitled at law or in equity.


 


Section
10.12 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of
this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.


 


Section
10.13 Shareholders’ Representative.


 


(a)
By executing this Agreement, each Shareholder hereby irrevocably authorizes and appoints the Shareholders’ Representative
as such Person’s representative and attorney-in-fact to act on behalf of such Person with respect to this Agreement and
the Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by the Shareholders’
Representative pursuant to this Agreement or the Escrow Agreement, including


 


(i)
give and receive notices and communications;


 


(ii)
authorize delivery to the Parent of Escrow Shares in satisfaction of claims for indemnification made by the Parent pursuant to
ARTICLE VI and ARTICLE VIII;


 


(iii)
agree to, negotiate, and enter into settlements and compromises in respect of, and comply with orders or handle any other matters
described in, Section 2.16, ARTICLE VI, or ARTICLE VIII;


 


(iv)
litigate, arbitrate, resolve, settle, or compromise any claim for indemnification pursuant to ARTICLE VI or ARTICLE
VIII;


 






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(v)
execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and the Escrow Agreement;


 


(vi)
make all elections or decisions contemplated by this Agreement and the Escrow Agreement to be made by the Shareholders;


 


(vii)
engage, employ, or appoint any agents or representatives (including attorneys, accountants, and consultants) to assist the Shareholders’
Representative in complying with his duties and obligations; and


 


(viii)
take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment
of the foregoing.


 


(b)
Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from each of the Shareholders.
Further, each Shareholder acknowledges that such Shareholder has specifically authorized the Shareholders’ Representative
to accept service of process, summons, complaint, subpoena, or initiation of other legal action related to this Agreement on behalf
of such Shareholder. The Shareholders’ Representative acknowledges that he will accept such service of process, summons,
complaint, subpoena, or initiation of other legal action on behalf of each Shareholder. Any decision or action by the Shareholders’
Representative hereunder, including any agreement between the Shareholders’ Representative and the Parent relating to the
defense, payment, or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders
and shall be final, binding, and conclusive upon each such Shareholder. No Shareholder shall have the right to object to, dissent
from, protest, or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby,
are independent and severable, are irrevocable and coupled with an interest, and shall not be terminated by any act of any one
or Shareholders, or by operation of Law, whether by death or other event.


 


(c)
The Shareholders shall indemnify and hold harmless the Shareholders’ Representative from and against any Losses, Liability
or expense (including the hiring of legal counsel and the incurring of legal fees and costs) incurred without gross negligence
or willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance
or administration of its duties hereunder; provided, that in no event shall the indemnification obligation of any Shareholder
exceed the Merger Consideration actually received by or due to such Shareholder hereunder. The Shareholders agree that any out-of-pocket
costs and expenses incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’
Representative pursuant to the terms of this Agreement (including the hiring of legal counsel and the incurring of legal fees
and costs) shall be the responsibility of the Shareholders based on their Pro Rata Shares.


 


(d)
Those Shareholders whose Pro Rata Shares in the aggregate equals or exceeds 50% shall have the right at any time to remove the
then-acting Shareholders’ Representative and to appoint a successor Shareholders’ Representative; provided,
however, that neither such removal of a then-acting Shareholders’ Representative nor such appointment of a successor
Shareholders’ Representative shall be effective until notice of such act has been provided to Parent and the other Shareholders.
The immunities and rights to indemnification of the Shareholders’ Representative shall survive the resignation or removal
of the Shareholders’ Representative and the Closing or any termination of this Agreement and the Escrow Agreement. Each
successor Shareholders’ Representative shall have all of the power, authority, rights, and privileges conferred by this
Agreement upon the original Shareholders’ Representative.


 






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Section
10.14 Acknowledgement. Recognizing that Stoel Rives LLP (“Stoel”), has acted as legal counsel to the Company
and to the Shareholders prior to date of this Agreement, and that Stoel intends to act as legal counsel to certain of the Shareholders,
the Shareholders’ Representative, and their respective Affiliates (which will not, after the Closing, include the Company,
Merger No. 1, or Merger Sub No. 2) after the Closing, the Parent, Merger Sub No. 1, and Merger Sub No. 2 hereby waive and, after
the Closing, shall cause the Surviving Entity to waive, any conflicts that may arise in connection with Stoel representing any
Shareholder, the Shareholders’ Representative, or their respective Affiliates after the Closing as such representation may
relate to this Agreement, the Merger, or the transactions contemplated hereby. In addition, all attorney-client privileged communications,
whether marked as such or not, between the Company, any Shareholder, and their respective agents, representatives, accountants,
brokers and Affiliates, on the one hand, and Stoel, on the other hand, in the course of or with respect to the negotiation, documentation,
preparation, execution, delivery, or performance of (a) this Agreement, the exhibits and schedules hereto (including the Disclosure
Schedules), (b) any document or instrument delivered pursuant to or in connection with the transactions contemplated by this Agreement,
or (c) any prior proposed purchase of the Company, Company Shares, or Company assets; as well as, any e-mails, correspondence,
memoranda, summaries, work product, work papers, or other such documentation or information relating to any of the foregoing (collectively,
the “Pre-Closing Materials”) shall be deemed to be attorney-client confidences that belong solely to the Shareholders
(and not the Parent, Merger Sub No. 1, Merger Sub No. 2, the Company, or any of their Affiliates) following the Closing. Accordingly,
following Closing, the Parent, Merger Sub No. 1, Merger Sub No. 2, and the Company shall not have access to the Pre-Closing Materials,
or those files of Stoel relating to Pre-Closing Materials. Without limiting the generality of the foregoing, from and after the
Closing, the Shareholders (and not the Parent, Merger Sub No. 1, Merger Sub No. 2, the Company, or any of their Affiliates) shall
be the sole holders of the attorney-client privilege with Stoel with respect to Pre-Closing Materials. To the extent that files
of Stoel contain Pre-Closing Materials that constitute property of the Shareholders, only the Shareholders and their respective
Affiliates (and not the Parent, Merger Sub No. 1, Merger Sub No. 2, the Company, or their Affiliates) shall hold such property
rights to such Pre-Closing Materials, and Stoel shall not have any duty whatsoever to reveal or disclose any such attorney-client
privileged Pre-Closing Materials to the Parent, Merger Sub No. 1, Merger Sub No. 2, the Company, or their respective Affiliates
by reason of any attorney-client relationship between Stoel, on the one hand, and the Shareholders or any of their Affiliates
(other than the Company), on the other hand, or otherwise.


 




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IN
WITNESS WHEREOF, the parties hereto have, as of the date first written above, (i) executed this Agreement or (ii) caused this
Agreement to be executed by their respective officers thereunto duly authorized, as applicable.


 





	 	THE
    PARENT:
	 	 
	 	nFÜSZ,
    INC.
	 	 	 
	 	By:	/s/
    Rory Cutaia
	 	 	Rory
    Cutaia, President and CEO
	 	 	 
	 	MERGER
    SUB NO. 1:
	 	 
	 	NF
    ACQUISITION COMPANY, LLC
	 	 	 
	 	By:	/s/
    Rory Cutaia
	 	 	Rory
    Cutaia, Authorized signatory
	 	 	 
	 	MERGER
    SUB NO. 1
	 	 
	 	NF
    MERGER SUB, INC.
	 	 	 
	 	By:	/s/
    Rory Cutaia
	 	 	Rory
    Cutaia, Authorized signatory
	 	 	 
	 	MERGER
    SUB NO. 2:
	 	 
	 	NF
    ACQUISITION COMPANY, LLC
	 	 	 
	 	By:	/s/
    Rory Cutaia
	 	 	Rory
    Cutaia, Authorized signatory


 


Signature
Page to Agreement and Plan of Merger





 



    	77



    	 



    







 


	 	THE
    COMPANY:
	 	SOUND
    CONCEPTS, INC.
	 	 	 
	 	By:	/s/
    McKinley J. Oswald
	 	Name:	McKinley
    J. Oswald  
	 	Title:	Chief
    Executive Officer                                                     
	 	 	 
	 	THE
    SHAREHOLDERS:
	 	 	 
	 	/s/ McKinley J. Oswald
	 	McKinley J. Oswald
	 	 	 
	 	/s/ McKinley M. Oswald
	 	McKinley M. Oswald
	 	 	 
	 	/s/ Jason Matheny
	 	Jason Matheny
	 	 	 
	 	/s/ Colby Allen
	 	Colby Allen
	 	 	 
	 	/s/ JJ Oswald
	 	JJ Oswald
	 	 	 
	 	THE
    SHAREHOLDERS’ REPRESENTATIVE:
	 	 	 
	 	/s/ McKinley J. Oswald
	 	McKinley J. Oswald


 


Signature
Page 2 of 2 to Agreement and Plan of Merger





 



    	78



    	 



    




 


EXHIBIT
A


 


Form
of Escrow Agreement


 




    	79



    	 



    

 


EXHIBIT
B


 


Form
of Lock-up Agreement


 




    	80



    	 



    

 


EXHIBIT
C


 


Directors
and Officers of the Surviving Entity


 


Directors:


Name


Name


Name


 


Officers:


 


	Chief
    Executive Officer	Name
	Secretary	Name
	Treasurer	Name


 






    	81