lysn_ex10-1










Exhibit 10.1



 



EXECUTION VERSION










 



STOCK PURCHASE AGREEMENT

 


This
STOCK PURCHASE AGREEMENT, dated as of March 29, 2021 (this
“Agreement”), is entered
into by and between
Liberated Syndication, Inc., a Nevada corporation (the
“Company”), on the one
hand, and each of the parties set forth in Schedule A to this Agreement
(together, the “Purchasers”), on the
other. Capitalized terms used in this Agreement but not otherwise
defined shall have the meanings set forth in Annex I to this
Agreement.

 



RECITALS

 


A. The Company
desires to sell the shares of its Common Stock to the Purchasers,
and the Purchasers desire to purchase shares of Common Stock from
the Company on the terms and subject to the conditions set forth in
this Agreement.

 


B. As a
condition and material inducement to the willingness of the
Purchasers to enter into this Agreement, the Company has agreed to
provide the Purchasers with certain registration rights set forth
in the Registration Rights Agreement attached to this Agreement as
Exhibit A (the
“Registration Rights
Agreement”).

 


NOW
THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Company and each of the Purchasers, severally and not jointly,
hereby agree as follows:

 



ARTICLE I



PURCHASE AND SALE

 


Section 1.1 Sale and Purchase. Subject to the terms
and conditions of this Agreement, at the Closing, each Purchaser
will acquire from the Company, and the Company shall issue, sell,
and deliver to each Purchaser, the number of shares of Common Stock
set forth opposite its name on Schedule A, at a price per
share of Common Stock of $3.75. The purchase and sale of the shares
of Common Stock by the Purchasers are several as between the
Purchasers, not joint, but for purposes of this Agreement are,
together with the other transactions contemplated by this Agreement
and the other Transaction Documents, collectively referred to as
the “Transactions.”

 


Section
1.2 Closing.

 


(a) Subject to
the terms and conditions set forth in this Agreement, the closing
of the Transactions (the “Closing”) will take place
on the first Business Day after the last of the conditions to
Closing set forth in Article V having been satisfied or waived
(other than conditions which, by their nature, are to be satisfied
on the Closing Date), or at such other time and/or place, and in
such manner, as the parties may mutually agree upon, remotely via
the exchange of documents and signatures. The date of the Closing
will be the “Closing
Date.”

 


(b) At the
Closing:


 







 








 





 





(i) The
Company shall deliver or cause to be delivered to each
Purchaser:

 


(A) evidence
of the Purchased Securities purchased by such Purchaser credited to
book-entry accounts maintained by the transfer agent of the Company
and issued by the Company free and clear of any Encumbrances
(except as set forth in any Transaction Documents or provided by
Applicable Law) registered in such names as such Purchaser has
designated;

 


(B) the
Registration Rights Agreement in substantially the form attached to
this Agreement as Exhibit
A, duly executed by the Company;

 


(C) a legal
opinion from the Company’s legal counsel in a form reasonably
satisfactory to counsel to the Purchasers; and

 


(D) any other
documents reasonably necessary or appropriate for the consummation
of the Transactions.

 


(ii) Each
Purchaser will deliver or cause to be delivered to the
Company:

 




(A)

payment of the
Purchase Price by wire transfer of immediately available funds in
U.S. Dollars into an account designated by the Company, which
account shall be designated at least two (2) Business Days (or such
shorter period of time as shall be agreeable by such Purchaser and
the Company) prior to the Closing Date;





 




(B)

the Registration
Rights Agreement in substantially the form attached to this
Agreement as Exhibit
A, duly executed by such Purchaser; and





 




(C)

any other documents
reasonably necessary or appropriate for the consummation of the
Transactions.





 

 




 

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Section
1.3 Preemptive Rights.

 


(a) Preemptive Rights of
Purchasers. If, at any time
until the earlier of (i) the one year anniversary of the Closing
Date, or (ii) the Common Stock being listed or quoted on a
Principal Market, the Company proposes to issue (except in a
transaction described in Section 1.3(b)
below) any of its equity securities
(including Common Stock) or any securities convertible into or
having the rights to purchase any equity securities (including
Common Stock) to any Person (which may include a Purchaser)
(collectively, “Equity
Securities”), then, in
such event, the Company shall first offer in writing to sell such
Equity Securities, on the same terms and conditions as proposed by
the Company to such Person, to each Preemptive Rights Purchaser
that is an “accredited investor,” as such term is
defined in Regulation D as promulgated under the Securities Act
(each a “Potential
Purchaser” and
collectively, the “Potential
Purchasers”). Each
Potential Purchaser shall then have the option to purchase its pro
rata portion of the Equity Securities proposed to be issued (based
on the number of Equity Securities owned by such Potential
Purchaser at the time of the subsequent transaction in relation to
the total number of the Equity Securities then outstanding, all
determined on a fully diluted basis, except for outstanding
Awards), at the price and upon the terms set forth in such writing.
Such option shall be exercisable by written notice to the Company
for a period of three days from the date of such offer. A failure
by a Potential Purchaser to give written notice of the exercise
within such three day period shall be deemed to be a rejection by
such Potential Purchaser of its option to purchase. To the extent
that any Potential Purchaser elects not to purchase the full amount
of Equity Securities it is entitled to purchase pursuant to
this Section
1.3(a), the other Potential
Purchasers’ rights to purchase Equity Securities pursuant to
this Section 1.3(a)
shall be increased, by their pro rata
portion, up to the maximum quantity of each class of Equity
Securities being offered by the Company. The closing of the
purchase of Equity Securities by the Potential Purchasers shall
take place within three days after the expiration of such three day
period. The Company shall have 60 days from the later of the
closing of the purchase of Equity Securities by the Potential
Purchasers or the expiration of the right set forth herein to sell
the unsold portion of the Equity Securities to other purchasers,
but only upon terms and conditions that are in all material
respects no more favorable to such purchasers or less favorable to
the Company than those set forth in the Equity Securities offering.
In the event that the sale of the unsold portion of Equity
Securities is not consummated within such 60 day period, the
Company’s right to sell such unsold Equity Securities shall
be deemed to lapse, and any sale of Equity Securities without
additional notice to the Potential Purchasers as provided for in
this Section 1.3(a)
shall be deemed to be in violation of
the provisions of this Agreement.



 


(b)  Excluded
Transactions. The following
transactions shall be excluded from the restrictions of this
Section
1.3:


 




(i)

The issuance of Equity Securities pursuant to this
Agreement (including Section
1.3(a));






 




(ii)

The issuance of Equity Securities that are
approved by the Company’s
board of directors, to employees, consultants or directors of the
Company (i) pursuant to a Stock Plan duly authorized by the
Company’s shareholders or (ii) otherwise approved by the
Company’s board of directors;






 




(iii)

The
issuance of Equity Securities in connection with any stock split or
stock dividend paid to all shareholders on an as-converted
basis;






 






 

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(iv)

The
issuance of Equity Security as consideration pursuant to an
Acquisition;






 




(v)

The
issuance of Equity Security as part of a Public Offering;
or






 




(vi)

The
issuance of Equity Securities as part of a Rights
Offering.






 

 



ARTICLE II



COMPANY REPRESENTATIONS AND WARRANTIES

 


The
Company represents and warrants to each Purchaser as follows (it
being understood that each representation and warranty contained in
this Article II is subject to (i) disclosures set forth in the SEC
Reports and (ii) exceptions and disclosures set forth in the
section or subsection of the Disclosure Schedule delivered by the
Company to the Purchasers immediately prior to the execution of
this Agreement (the “Disclosure Schedule”);
provided, that (x)
disclosure contained in any section of the Disclosure Schedule
shall be deemed to be disclosed with respect to any other section
or subsection of this Agreement to the extent that it is reasonably
apparent from the face of such disclosure that such disclosure is
applicable to such other section or subsection of this Agreement
(regardless of whether an explicit reference or cross-reference is
made) and (y) disclosure set forth in the SEC Reports described
above shall only be deemed to be disclosed to the extent that it is
reasonably apparent from the face of such disclosure that such
disclosure is applicable to any section or subsection of this
Agreement:

 


Section
2.1 Organization and Qualification.

 


(a) The
Company is a corporation duly organized, validly existing and in
good standing under the Applicable Laws of the jurisdiction of its
incorporation and has the requisite corporate power and authority
to own, lease and operate all of its properties and assets and to
carry on its business as it is now being conducted and as currently
proposed to be conducted. The Company is duly qualified or licensed
as a foreign corporation to do business and is in good standing (to
the extent such concept or a comparable status is recognized), in
each jurisdiction where the character of the properties and assets
occupied, owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except
for any such failures to be so qualified or licensed and in good
standing, individually and in the aggregate, have not had and would
not reasonably be expected to have a: (i) a material adverse effect
on the legality, validity or enforceability of the Transaction
Documents, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole,
or (iii) a material adverse effect on the Company’s ability
to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or
(iii), a “Material
Adverse Effect”).

 


(b) Each of
the Company’s Subsidiaries is duly organized, validly
existing and in good standing under the Applicable Laws of the
jurisdiction of its formation and has the requisite power and
authority necessary to own, lease and operate all of its properties
and assets and to carry on its business as it is now being
conducted and as currently proposed to be conducted. Each of the
Company’s Subsidiaries is duly qualified or licensed as a
foreign corporation to do business and is in good standing (to the
extent such concept or a comparable status is recognized), in each
jurisdiction where the character of the properties and assets
occupied, owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except
for any such failures to be so qualified or licensed and in good
standing, individually and in the aggregate, have not had and would
not reasonably be expected to have a Material Adverse
Effect.


 







 

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(c) Except for
its Subsidiaries, the Company does not directly or indirectly own
any equity, partnership, membership or similar interest in, or any
interest convertible into, exercisable for the purchase of or
exchangeable for any such equity, partnership, membership or
similar interest. Neither the Company nor its Subsidiaries are
under any current or prospective obligation to form or participate
in, provide funds to, make any loan, capital contribution or other
investment in or assume any Liability of, any Person.

 





Section 2.2 Organizational Documents. A complete and
correct copy of the Company’s certificate of incorporation
and the bylaws, each as amended to date, have been provided to the
Purchasers prior to the date hereto and are in full force and
effect. Neither the Company nor any of its Subsidiaries is in
violation of the provisions of its certificate of incorporation,
bylaws or equivalent organizational documents.

 


Section
2.3 Capitalization.

 


(a) As of the
date hereof, the authorized capital stock of the Company consists
of 200,000,000 shares of Common Stock and 10,000,000 shares of
preferred stock authorized (“Preferred Stock”). As of
the date hereof, 26,401,696 shares of Common Stock are issued and
outstanding. The foregoing represents all of the issued and
outstanding capital stock of the Company as of the date
hereof.

 


(b) Each
outstanding share of capital stock or other equity or ownership
interest of the Company and each of its Subsidiaries: (i) is duly
authorized, validly issued, fully paid and nonassessable, and in
the case of its Subsidiaries, each such share or other equity or
ownership interest is owned by the Company or another Subsidiary of
the Company, free and clear of any Encumbrance and (ii) has been
offered, sold and delivered by the Company or its Subsidiary in
compliance with all Applicable Laws and any applicable contractual
restrictions. There are no declared or accrued but unpaid dividends
or other distributions with respect to any shares of capital stock
or other security of the Company.

 


(c) Except for
the Company Awards and the shares of Common Stock contemplated by
this Agreement, neither the Company nor any of its Subsidiaries has
issued or agreed to issue, or is obligated to issue, any: (i) share
of capital stock or other equity or ownership interest; (ii)
option, warrant or interest convertible into or exchangeable or
exercisable for the purchase of shares of capital stock or other
equity or ownership interests; (iii) stock appreciation right,
phantom stock, interest in the ownership or earnings of the Company
or any of its Subsidiaries or other equity equivalent or
equity-based award or right; or (iv) bond, debenture or other
Indebtedness having the right to vote or convertible or
exchangeable for securities having the right to vote.

 


(d) As of the
date hereof, no shares of Common Stock are reserved for issuance in
connection with the exercise or vesting of Company Awards granted
pursuant to the Company Plan or otherwise approved by the
Company’s board of directors. All Company Awards outstanding
have been documented with the Company’s standard form of
agreement or award document, a complete and correct copy of which
has been attached to the SEC Reports.


 







 

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(e) Other than
this Agreement and the other Transaction Documents, there are no
outstanding agreements of any kind which obligate the Company or
any of its Subsidiaries to repurchase, redeem or otherwise acquire
any securities (other than pursuant to the cashless exercise of
Company Awards or the satisfaction of Tax withholding with respect
to the exercise of Company Awards), or obligate the Company to
grant, extend or enter into any such agreements relating to any
securities, including any agreements granting any preemptive
rights, subscription rights, anti-dilutive rights, rights of first
refusal or similar rights with respect to any
securities.

 


(f) Other than
this Agreement and the other Transaction Documents, there are no
stockholder agreements, investors rights agreements, voting
agreements, voting trusts, right of first refusal and co-sale
agreements, management rights agreements, registration rights
agreement, or any similar agreements or Contracts to which either
the Company or any Subsidiary is a party or by which it is bound
relating to the transfer, voting or registration of any shares of
capital stock or any other securities of the Company or any of its
Subsidiaries and, to the Company’s knowledge, no stockholder
or other security holder of the Company is party to such an
agreement.

 


Section 2.4 Valid Issuance of Securities. The
Purchased Securities have been duly and validly authorized and when
issued and delivered against payment for such shares as provided in
this Agreement, will be duly and validly issued, fully paid and
nonassessable and free and clear of any Encumbrances (except as set
forth in any Transaction Documents or provided by Applicable
Law).

 


Section 2.5 Corporate Authority. The Company has all
necessary corporate power and authority to execute and deliver this
Agreement and each other Transaction Document to which it is or, at
the Closing, will become a party, to perform its obligations under
this Agreement and each such other Transaction Document, and to
consummate the Transactions. The execution and delivery of this
Agreement and each other Transaction Document, and the consummation
of the Transactions, have been duly and validly authorized by the
board of directors of the Company, and no other corporate
proceedings on the part of the Company are necessary to authorize
this Agreement and each such other Transaction Document, or to
consummate the Transactions.

 


Section 2.6 Enforceability. This Agreement and each
other Transaction Document constitutes or, upon execution, will
constitute the valid, legal and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws now or hereafter in
effect relating to creditors’ rights generally or to general
principles of equity (the “Bankruptcy and Equity
Exception”).

 


Section
2.7 No Conflict; Required Consents and Approvals.

 


(a) The
execution, delivery and performance by the Company of this
Agreement and each of the other Transaction Documents, and the
consummation of the Transactions, do not and will not: (i) conflict
with or violate the certificate of incorporation or bylaws or
equivalent organizational documents of the Company or any of its
Subsidiaries; (ii) conflict with or violate any Applicable Law;
(iii) conflict with, result in any breach of, or constitute a
default (or an event that, with notice or lapse of time or both,
would become a default or breach) under, require any consent of or
notice to any Person pursuant to, or give to others any right of
termination, amendment, acceleration or cancellation of, or result
in the creation of an Encumbrance on any property or asset of the
Company or any of its Subsidiaries pursuant to, or otherwise
adversely affect the rights of the Company or any of its
Subsidiaries under, or result in the loss of any benefit under, any
Contract or Permit.


 







 

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(b) The
execution, delivery and performance by the Company of this
Agreement and each of the other Transaction Documents, and the
consummation of the Transactions do not and will not require any
consent, approval, authorization or permission of, or filing with
or notification to, any Governmental Entity for such performance or
in order to prevent the termination of any right, privilege,
license or qualification of the Company or any of its Subsidiaries,
except for such filings as may be required by any applicable
federal or state securities or “blue sky”
Laws.

 


Section
2.8 SEC Filings.

 


(a) The
Company has filed with the SEC, on a timely basis, all required
reports, schedules, forms, statements and other documents required
to be filed by the Company with the SEC pursuant to the Exchange
Act (the “Filed SEC
Documents”). As of their respective SEC filing dates,
the Filed SEC Documents complied as to form in all material
respects with the requirements of the Securities Act, the Exchange
Act or the Sarbanes-Oxley Act of 2002 (and the rules regulations
promulgated thereunder) (the “Sarbanes-Oxley Act”), as
the case may be, applicable to such Filed SEC Reports, and none of
the Filed SEC Reports as of such respective dates contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. Except with respect to the
Transactions, no event giving rise to an obligation to file (or
furnish) a report under Form 8-K with the SEC has occurred as to
which the time period for making such filing has not yet expired
and as to which the applicable Form 8-K has not been publicly filed
or furnished.

 


(b) The
consolidated financial statements of the Company (including all
related notes or schedules) included or incorporated by reference
in the SEC Reports complied as to form, as of their respective
dates of filing with the SEC, in all material respects with the
published rules and regulations of the SEC with respect thereto,
have been prepared in all material respects in accordance with GAAP
applied on a consistent basis during the periods involved (except:
(i) as may be otherwise specified in such financial statements or
the notes thereto, (ii) that unaudited financial statements may not
contain all footnotes required by GAAP and (iii) as permitted
otherwise permitted by Regulation S-X),) and fairly presented in
all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for
the periods shown in accordance with GAAP (subject, in the case of
unaudited quarterly financial statements, to normal year-end
adjustments and the absence of footnote disclosures).

 


(c) Neither
the Company nor any of its Subsidiaries is a party to, or has any
commitment to become a party to, any “off balance sheet
arrangement” within the meaning of Item 303 of Regulation S-K
promulgated under the Securities Act.

 


(d) Neither
the Company nor any of its Subsidiaries has any liabilities of any
nature (whether accrued, absolute, contingent or otherwise) that
would be required under GAAP to be reflected on a consolidated
balance sheet of the Company (including the notes thereto), except
(i) those incurred after the date of the Balance Sheet in the
ordinary course of business, (ii) as expressly contemplated by this
Agreement or otherwise incurred in connection with the
Transactions, or (iii) that have been discharged or paid prior to
the date of this Agreement.


 







 

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(e) Except as
disclosed in the SEC Reports, there are no legal or governmental
actions, suits or proceedings pending or threatened against the
Company or any Subsidiary before or by any court, regulatory body
or administrative agency or any other governmental agency or body,
domestic, or foreign. Neither the Company nor any Subsidiary is a
party to or subject to the provisions of any injunction, judgment,
decree or order of any court, regulatory body, administrative
agency or other governmental agency or body.

 


Section 2.9 Disclosure Controls. The Company and
each of its Subsidiaries maintain disclosure controls and
procedures (as defined in Rules 13a-15 and 15d-15 under the
Exchange Act) designed to ensure that information required to be
disclosed by the Company in the reports it files or submits under
the Exchange Act is recorded, processed, summarized and reported,
within the time period specified in the SEC’s rules and
forms, and is accumulated and communicated to management of the
Company, including its principal executive officer and its
principal financial officer, as appropriate, to allow timely
decisions regarding disclosure.

 


Section 2.10 Sarbanes-Oxley Act. The principal
executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all
certifications required by the Sarbanes-Oxley Act and any related
rules and regulations promulgated by the SEC, and the statements
contained in each such certification are complete and correct in
all material respects. The Company, the Subsidiaries and the
Company’s directors and executive officers are each in
compliance in all material respects with all applicable effective
provisions of the Sarbanes-Oxley Act and the rules and regulations
of the SEC promulgated thereunder.

 


Section 2.11 Stock Plans. Each stock option granted
under any stock option plan of the Company or any Subsidiary
(including the Company Plan) (each, a “Stock Plan”) was granted
with a per share exercise price no less than the fair market value
per share of Common Stock on the grant date of such option, and no
such grant involved any “back-dating,”
“forward-dating” or similar practice with respect to
the effective date of such grant. Each such stock option (i) was
granted in compliance with Applicable Laws and with the applicable
Stock Plan(s), (ii) was duly approved by the board of directors (or
a duly authorized committee thereof) of the Company or such
Subsidiary, as applicable, and (iii) has been properly accounted
for in the Company’s consolidated financial statements and
disclosed in the SEC Reports.

 


Section 2.12 No Material Adverse Change. Since
September 30, 2020, there has not been, whether or not arising in
the ordinary course of business (i) a Material Adverse Effect,
(ii) any transaction consummated which is material to the Company
and the Subsidiaries taken as a whole, (iii) any obligation or
liability, direct or contingent (including
any off-balance sheet obligations), incurred by the
Company or any Subsidiary that is material to the Company and the
Subsidiaries taken as a whole, or (iv) any dividend or
distribution of any kind declared, paid or made on the capital
stock of, or other equity interests in, the Company or any
Subsidiary.


 







 

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Section 2.13 Taxes. The Company and each of its
Subsidiaries have, in all material respects, (i) prepared (or
caused to be prepared) and timely filed (taking into account valid
extensions of time within which to file) all income and other Tax
Returns required to be filed by any of them, and all such filed Tax
Returns (taking into account all amendments thereto) are true,
complete and correct and (ii) timely paid all Taxes owed by the
Company and each of its Subsidiaries (whether or not shown to be
due and payable on any Tax Returns) except for Taxes that are being
contested in good faith by appropriate proceedings or for which
adequate reserves have been established in accordance with GAAP.
The Company has not executed any outstanding waiver of any statute
of limitations for, or extension of, the period for the assessment
or collection of any Tax which period has not yet expired (other
than automatic extensions or any customary extensions obtained in
the ordinary course of business). There are no examination, audits
or other administrative or court proceedings of any income and
other Tax Return of the Company or any of its Subsidiaries by any
Governmental Entity (or any other dispute or claim concerning any
Tax liability of the Company or any of its Subsidiaries) currently
in progress or, to the Company’s knowledge, threatened in
writing other than any examination, audit or proceeding presenting
issues for which adequate reserves have been established in
accordance with GAAP. The Company and each of its Subsidiaries have
complied in all material respects with all Applicable Laws relating
to the payment and withholding of Taxes and have, within the time
and manner prescribed by Law, paid over to the proper Governmental
Entity all material amounts required to be withheld and paid over
under all Applicable Laws. There are no Encumbrances relating or
attributable to Taxes encumbering the assets of the Company or any
of its Subsidiaries, except for Permitted Encumbrances. Neither the
Company nor any of its Subsidiaries has engaged in any
“listed transaction” within the meaning of Treasury
Regulations Section 1.6011-4(b)(2). The Company is not and has not
been a “United States real property holding
corporation” as defined in the Code and any applicable
Treasury Regulations promulgated thereunder.

 


Section
2.14 Compliance with Applicable Law; Permits.

 


(a) Each of
the Company and its Subsidiaries is and has at all times been in
compliance in all material respects with all Applicable Laws.
Neither the Company nor any of its Subsidiaries has received any
notice, order, complaint or other communication from any
Governmental Entity or any other Person that the Company or any of
its Subsidiaries has any Liability under any Applicable Law or that
it is not or has at any time not been in compliance in all material
respects with any Applicable Law. No investigation or review by any
Governmental Entity regarding a violation of any Applicable Law
with respect to the Company or any of its Subsidiaries has
occurred, is pending or, to the Company’s knowledge, has been
threatened.

 


(b) Each of
the Company and its Subsidiaries is in possession of all permits
necessary for the Company or its Subsidiaries to lawfully own,
lease and operate its properties and to lawfully carry on its
business as it is now being conducted and is proposed to be
conducted (the “Permits”), except for
those that would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect
(“Material
Permits”). Each of the Company and its Subsidiaries is
and has at all times been in material compliance with all such
Material Permits. No suspension, cancellation, modification,
revocation or nonrenewal of any Material Permit has occurred, is
pending or has been threatened, and there is no basis for any such
action.


 







 

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Section 2.15 Litigation. There is no Action or
pending, threatened, or reasonably expected against or affecting
the Company or any of its Subsidiaries, or any property or asset of
the Company or any of its Subsidiaries, or any of the directors or
officers of the Company or any of its Subsidiaries with regard to
their actions as such. No Action seeking to prevent, hinder,
modify, delay or challenge the transactions contemplated by this
Agreement or the Transaction Documents has occurred, is pending or,
to the Company’s knowledge, threatened. There is no Judgment
by any Governmental Entity relating to the Company, any of its
Subsidiaries, any of their respective properties or assets, any of
their respective officers or directors, or the
Transactions.

 


Section
2.16 Labor and Employment Matters.

 


(a) The
Company and its Subsidiaries are and at all times have been in
compliance with all Applicable Laws relating to terms and
conditions of employment, equal pay, health and safety, wages and
hours (including the classification of independent contractors and
exempt and nonexempt employees and the payment of such employees),
immigration and employment verification matters (including the
completion of I-9s for all employees and the proper confirmation of
employee visas), employment discrimination, harassment, and
retaliation, disability rights or benefits, leave Laws, human
rights, equal opportunity (including compliance with any
affirmative action plan obligations), plant closures and layoffs
(including the Worker Adjustment and Retraining Notification Act of
1988, as amended, or any similar Laws), occupational safety and
health, workers’ compensation, labor relations, employee
leave issues, affirmative action and affirmative action plan
requirements and unemployment insurance, except, in each case, for
matters that would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse
Effect.

 


(b) The
Company and its Subsidiaries are not and have never been a party to
or otherwise bound by any collective bargaining agreement or other
agreement with a labor union, works council, group of employees or
equivalent organization, and to the Company’s knowledge,
there is no organizational campaign or other effort to cause a
labor union or equivalent organization to be recognized or
certified as a representative on behalf of the employees in dealing
with the Company or its Subsidiaries. There are not and have never
been any or, to the Company’s knowledge, threatened. labor
strikes, slowdowns, labor disputes, or work stoppages or
disruptions, picketing or lockouts affecting the Company or its
Subsidiaries.

 


(c) The
Company and its Affiliates have no liability for (i) any unpaid
wages, salaries, wage premiums, overtime, commissions, bonuses,
fees, or other compensation to any current or former employees, and
current or former independent contractors under applicable Law,
contract or policy of the Company or its Subsidiaries; and/or (ii)
any fines, Taxes, interest, or other penalties for any failure to
pay or delinquency in paying such compensation, except for those
that would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse
Effect.

 


(d) All (i)
employees of the Company and its Subsidiaries who are or have been
classified as exempt under the Fair Labor Standards Act and any
applicable state and local wage and hour Laws are, were and have
been properly classified as exempt at all times so classified, (ii)
employees of the Company and its Subsidiaries who are or have been
classified as nonexempt under the Fair Labor Standards Act and any
applicable state and local wage and hour Laws have been fully and
properly paid all wages, including overtime, due under such Laws,
and (iii) Persons providing work or services to the Company or its
Subsidiaries who are or have been classified as independent
contractors have been properly classified as independent
contractors under all applicable Laws at all times so classified,
except for those that would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse
Effect.


 







 

10








 





 





(e) No written
allegations of sexual harassment or sexual misconduct have been
made to the Company or any of its Subsidiaries involving any
current or former director, officer, or employee at the level of
vice president or above of the Company or any of its Subsidiaries.
Neither the Company nor its Subsidiaries have entered into any
settlement agreements related to allegations of sexual harassment
or sexual misconduct by any current or former director, officer, or
employee at the level of vice president or above of the Company or
its Subsidiaries. No current director or officer of the Company or
its Subsidiaries have been the subject of any written complaint to
the Company or any of its Subsidiaries of sexual harassment, sexual
assault, or sexual discrimination during his or her tenure at the
Company.

 


(f) The
Company and its Affiliates have complied with all applicable Laws,
including but not limited to all applicable federal, state, and
local statutes, regulations, and orders related to employee leave,
workplace safety, and employee accommodations, related to, or in
response to, COVID-19, except for those that would not,
individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.

 


Section 2.17 Compliance with ERISA. Each Employee
Benefit Plan (and each related trust, insurance contract or fund)
is in compliance with its terms and with ERISA, the Code and all
Applicable Laws, except for those that would not, individually or
in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect. No ERISA Event has occurred or is
reasonably expected to occur. Each Employee Benefit Plan (and each
related trust, if any) that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter
from the IRS, or is entitled to rely upon an advisory or opinion
letter issued to the provider of a pre-approved plan from the IRS,
including for all required amendments, regarding its qualification
thereunder that considers the law changes incorporated in the
Employee Benefit Plan sponsor’s most recently expired
remedial amendment cycle determined under the provisions of Rev.
Proc. 2007-44 (or any successor thereto). No Employee Benefit Plan
has an Unfunded Current Liability. No employee welfare benefit plan
within the meaning of §3(1) or §3(2)(B) of ERISA of the
Company or any ERISA Affiliate provides benefit coverage subsequent
to termination of employment except as required by Title I, Part 6
of ERISA or applicable state insurance Laws. No Withdrawal
Liability has been, or is reasonably expected to be, incurred for
any Multiemployer Plan by the Company or any of its ERISA
Affiliates.

 


Section 2.18 Ownership of Properties; Title; Real Property;
Leases. Neither the Company nor any of the Subsidiaries owns
any interest in Real Property. The Company or one of its
Subsidiaries has valid and enforceable leasehold interests in all
leased property, in each case, free and clear of all Encumbrances
except for Permitted Encumbrances, subject to the Bankruptcy and
Equity Exception.


 







 

11








 





 





Section
2.19 Intellectual Property Rights; Information Technology;
Data Security.

 


(a) The
Company and each of its Subsidiaries owns, licenses or otherwise
possesses the right to use, all of the material IP Rights that are
reasonably necessary for, or otherwise used or held for use in, the
operation of any portion of its respective businesses of the
Company and its Subsidiaries as currently conducted. The conduct
and operations of the businesses of the Company and each of its
Subsidiaries as currently conducted does not infringe,
misappropriate, dilute, or otherwise violate any IP Rights owned by
any other Person. To the knowledge of the Company, no Person is
infringing, violating, misusing or misappropriating any IP Rights
owned by the Company or any Subsidiary, and no such claims have
been made against any Person by the Company or any of its
Subsidiaries. No claim or litigation (i) challenging any right,
title or interest of the Company or any of its Subsidiaries in any
IP Rights owned by the Company or such Subsidiary, (ii) contesting
the use of any IP Rights owned by the Company or such Subsidiary,
(iii) contesting the validity or enforceability of such IP Rights,
or (iv) alleging infringement, misappropriation, dilution, or other
violation by the Company or any of its Subsidiaries of any IP
Rights owned by any other Person, is pending or, to the
Company’s knowledge, threatened against the Company or any of
its Subsidiaries.

 


(b) None of
the IP Rights owned by the Company or any of its Subsidiaries is
subject to any exclusive licensing agreement or similar
arrangement.

 


(c) Each of
the IP Licenses is valid and binding on the Company or one of its
Subsidiaries, and to the knowledge of the Company, on the
respective other party thereto in accordance with its terms and is
in full force and effect. Neither the Company or one of its
Subsidiaries who is a party on the one hand, or to the knowledge of
the Company, the other party on the other hand, to any IP License
has materially breached or defaulted under, or has provided or
received any notice of a material breach or default of or any
intention to terminate, any IP License.

 


(d) The
Company and its Subsidiaries have taken all commercially reasonable
and customary measures and precautions necessary to protect and
maintain the confidentiality of all trade secrets and all otherwise
confidential information associated with the Company and its
Subsidiaries in which the Company or any of its Subsidiaries has
any right, title or interest in to maintain and protect the full
value of all such information.

 


(e) Neither
the Company nor any of its Subsidiaries has disclosed any trade
secrets in which the Company or any of its Subsidiaries has (or
purports to have) any right, title or interest (or any tangible
embodiment thereof) to any person without having the recipient
thereof execute a written agreement regarding the non-disclosure
and non-use thereof except as may have been required by Applicable
Law.

 


(f) No
funding, facilities or personnel of any Governmental Entity were
used, directly or indirectly, to develop or create, in whole or in
part, any IP Rights owned or purported to be owned by the Company
or any of its Subsidiaries.

 




 

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(g) The
Company and its Subsidiaries have the right to use all Data, Data
sets, databases and algorithms, used in, held for use in, or
necessary for the conduct of the business of the Company and its
Subsidiaries, as currently conducted (collectively,
“Company Data and
Data Sets”), and all such Company Data and Data Sets
are either (i) owned by the Company or one of its Subsidiaries,
(ii) used under valid, enforceable, and perpetual licenses to the
Company or one of its Subsidiaries, or (iii) otherwise used without
encroaching on the rights of any third party.

 


(h) All IT
Systems owned or used by the Company are sufficient for the needs
of conducting its business, in sufficiently good working condition
to effectively perform all information technology operations and
include a sufficient number of license seats for all Software, and
are fully functional and operate and run in a reasonable and
efficient business manner, and are free from any material: (i)
defect, bug, or virus; or (ii) programming, design or documentation
error or corruptant or other Software routines or hardware
components that permit unauthorized access to, or the unauthorized
disablement or erasure of, hardware components. There has never
been any material (x) disruption, interruption, breakdown, failure,
continued substandard performance, outage, or other adverse event
affecting the IT Systems; or (y) unauthorized intrusions or
breaches of security of the IT Systems. The Company has implemented
and maintained its IT Systems with information security controls,
regularly tested and fully encrypted backup systems, and disaster
recovery and business continuity practices as are customarily
insured against by similarly situated companies in the same or
similar businesses.

 


(i) The
Company’s practices with regard to the processing and
security of Company Data are and have at all times been in
accordance with: (i) applicable Privacy Requirements; (ii)
applicable material contractual commitments of the Company relating
to Data privacy and security of Company Data, and (iii) any
published Company Privacy Policies of the Company, except for
matters that would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect. The
Company has had in place commercially reasonable and appropriate
written internal privacy and information security policies,
designed to address the implementation and maintenance of
appropriate and risk-based administrative, physical, and technical
controls to protect and address the processing of Company Data (in
paper or electronic form) in a manner consistent with industry
practices for the protection and appropriate use of valuable
confidential or proprietary information and that meet or exceed the
requirements of applicable Privacy Requirements.

 


(j) The
Company has not been required to, or voluntarily elected to, give
notice to any customer, supplier, Governmental Entity, employee, or
other person of any actual or alleged Security Breach or IT System
or Data security failure or noncompliance, pursuant to any
applicable Law or contract or otherwise. The Company has never
experienced a Security Breach.

 


(k) Each
current or former employee, consultant and contractor who develops
or has developed the Company’s or any of its
Subsidiaries’ IP Rights has executed proprietary information,
confidentiality and assignment agreements substantially in the
Company’s standard forms that assign to the Company or such
Subsidiary all such IP Rights.

 




 

13








 





 


Section
2.20 Material Contracts.

 


(a) Each of
the Material Contracts constitutes the valid and legally binding
obligation of the Company or a Subsidiary thereof, as applicable,
enforceable in accordance with its terms (subject to the Bankruptcy
and Equity Exception) and is in full force and effect.

 


(b) There is
no breach or default under any Material Contract either by the
Company or any of its Subsidiaries or, to the Company’s
knowledge, by any other party to such contract. No event has
occurred that with the giving of notice, the lapse of time, or both
would constitute a breach or default under such contract by the
Company or any of its Subsidiaries or, to the Company’s
knowledge, any other party.

 


(c) No party
to any Material Contract has given notice to the Company or any of
its Subsidiaries of or made a claim against the Company or any of
its Subsidiaries in respect of any breach or default
thereunder.

 


Section
2.21 Tangible Assets; Inventory.

 


(a) The
Company and its Subsidiaries own, and have good and valid title to,
or, in the case of leased properties and assets, valid leasehold
interests in, all of their respective tangible properties and
assets that are used or held for use in their respective
businesses, including all of the assets reflected on the Balance
Sheet or acquired in the ordinary course of business consistent
with past practice since the date of the Balance Sheet (except for
those assets sold or otherwise disposed of for fair value since the
date of the Balance Sheet in the ordinary course of business
consistent with past practice), in each case free and clear of any
Encumbrances, except as reflected on the Balance Sheet and except
for such imperfections of title, if any, that do not interfere with
the present value of the subject property.

 


(b) The assets
owned or leased by the Company and its Subsidiaries constitute all
of the assets necessary for the Company and its Subsidiaries to
carry on their respective businesses as currently conducted. All
material tangible assets owned or leased by the Company or its
Subsidiaries have been at all times maintained in all material
respects in accordance with generally accepted industry practice,
are in all material respects in good operating condition and
repair, ordinary wear and tear excepted, and are adequate for the
uses to which they are being put.

 


Section 2.22 Insurance. The Company and its
Subsidiaries maintain insurance policies against all risks of a
character and in such amounts as are customarily insured against by
similarly situated companies in the same or similar businesses.
Each insurance policy is in full force and effect and is valid,
outstanding and enforceable, and all premiums due thereon have been
paid in full. Each of the Company and its Subsidiaries have
materially complied with the provisions of each insurance policy
under which it is the insured party. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant
increase in cost. Neither the Company nor any of its Subsidiaries
has established or operated under a formalized self-insurance
program.


 




 

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Section
2.23 Certain Business Practices.

 


(a) None of
the Company, any of its Subsidiaries, or any Representatives of the
Company or any of its Subsidiaries, directly or indirectly, whether
in cash, property or services: (i) used any corporate or other
funds for unlawful contributions, gifts, entertainment or other
unlawful payments related to political activity, or (ii) made any
bribes, kickbacks, influence payments, or other unlawful payment to
U.S. or non-U.S. government officials or employees or to U.S. or
non-U.S. political parties or campaigns or violated any provision
of the Foreign Corrupt Practices Act of 1977, as amended, or any
comparable Applicable Law. Neither the Company nor any of its
Subsidiaries has entered into any transaction with any of its
Affiliates that has provided to the Company or any of its
Subsidiaries revenues, earnings or assets that would not have been
available to it in an arm’s length transaction with an
unaffiliated Person.

 


(b) The books,
records and accounts of the Company and its Subsidiaries have at
all times accurately and fairly reflected, in reasonable detail,
the transactions and dispositions of their respective funds and
assets. There have never been any false or fictitious entries made
in the books, records or accounts of the Company or any of its
Subsidiaries relating to any illegal payment or secret or
unrecorded fund, and neither the Company nor any of its
Subsidiaries has established or maintained a secret or unrecorded
fund.

 


Section 2.24 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 or any of the other Transaction Documents based upon
arrangements made by or on behalf of the Company or any of its
Subsidiaries.

 


Section 2.25 Books and Records. The books and records
of the Company and its Subsidiaries are in the possession and under
direct control of the Company.

 


Section 2.26 Legal Status of Directors, Officers, Employees
and Contractors. None of the Company’s directors or
officers are (a) subject to any court order enjoining the them from
engaging, or otherwise imposing limits or conditions on his
engagement in any securities, investment advisory, banking,
insurance, or other type of business or acting as an officer or
director of a public company; (b) found by a Governmental Entity to
have violated any securities, commodities, or unfair trade
practices Law; or (c) identified on any of the following documents:
(i) the Office of Foreign Assets Control of the United States
Department of the Treasury list of “Specially Designated
Nationals and Blocked Persons”; (ii) the Bureau of Industry
and Security of the United States Department of Commerce
“Denied Persons List,” “Entity List” or
“Unverified List”; (iii) the Office of Defense Trade
Controls of the United States Department of State “List of
Debarred Parties”; or (iv) the United Nations Security
Council Counter-Terrorism Committee “Consolidated
List.”

 




 

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Section
2.27 Related Party Transactions.

 


(a) No Related
Party of the Company or any of its Subsidiaries: (i) owns, directly
or indirectly, any equity or other financial or voting interest in
any competitor, supplier, licensor, lessor, distributor,
independent contractor or customer of the Company or any of its
Subsidiaries or their business; (ii) owns, directly or indirectly,
or has any interest in any property (real or personal, tangible or
intangible) that the Company or any of its Subsidiaries uses or has
used in or pertaining to the business of the Company or any of its
Subsidiaries; or (iii) has any business dealings or a financial
interest in any transaction with the Company or any of its
Subsidiaries or involving any assets or property of the Company or
any of its Subsidiaries, other than business dealings or
transactions conducted in the ordinary course of business
consistent with past practice at prevailing market prices and on
prevailing market terms.

 


(b) There are
no Contracts by and between the Company or any of its Subsidiaries,
on the one hand, and any Related Party of the Company or any its
Subsidiaries, on the other hand, pursuant to which such Related
Party provides or receives any information, assets, properties,
support or other services to or from the Company or any of its
Subsidiaries.

 


(c) There are
no outstanding notes payable to, accounts receivable from or
advances by the Company or any of its Subsidiaries to, and neither
the Company nor any of its Subsidiaries is otherwise a debtor or
creditor of, or has any Liability to, any Related Party of the
Company or any of its Subsidiaries. Since the date of the Balance
Sheet, neither the Company nor any of its Subsidiaries has incurred
any Liability to, or entered into or agreed to enter into any
transaction with or for the benefit of, any Related Party of the
Company or any of its Subsidiaries, other than the transactions
contemplated by this Agreement and the other Transaction
Documents.

 


Section 2.28 Export Control Laws. Each of the Company
and its Subsidiaries is and has at all times been in compliance
with all Export Control Laws, except for those that would not,
individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect. Without limiting the
foregoing: (a) each of the Company and its Subsidiaries has
obtained all material export licenses and other approvals required
for its exports of products, Software and technologies required by
any Export Control Law and all such approvals and licenses are in
full force and effect; (b) each of the Company and its Subsidiaries
is in material compliance with the terms of such applicable export
licenses or other approvals; and (c) there are no pending or, to
the Company’s knowledge, threatened claims against the
Company or any of its Subsidiaries with respect to such export
licenses or other approvals.

 


Section 2.29 Sale of Securities. Assuming the
accuracy of the representations and warranties set forth in
Section 3.6(a) and
Section 3.6(b), the
sale of Purchased Securities pursuant to this Agreement is exempt
from the registration and prospectus delivery requirements of the
Securities Act and the rules and regulations thereunder. Without
limiting the foregoing, neither the Company nor any other Person
authorized by the Company to act on its behalf, has engaged in a
general solicitation or general advertising (within the meaning of
Regulation D of the Securities Act) of investors with respect to
offers or sales of the Purchased Shares and neither the Company nor
any Person acting on its behalf has made any offers or sales of any
security or solicited any offers to buy any security, under
circumstances that could cause the offering or issuance of the
Purchased Shares under this Agreement to be integrated with prior
offerings by the Company for purposes of the Securities Act that
could result in none of Regulation D or any other applicable
exemption from registration under the Securities Act to be
available, nor will the Company take any action or step that could
cause the offering or issuance of the shares of Common Stock under
this Agreement to be integrated with other offerings by the
Company.


 




 

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Section 2.30 Representations Complete. The
representations and warranties contained in this Article II do not contain any
untrue statement of a fact or omit to state any fact necessary in
order to make the statements and information contained in this
Article II not
misleading.

 



ARTICLE III



PURCHASER REPRESENTATIONS AND WARRANTIES

 


Each
Purchaser hereby represents and warrants to the Company, as to
itself and no other Purchaser, as follows:

 


Section 3.1 Organization and Qualification. Such
Purchaser is duly organized, validly existing and in good standing
under the Applicable Laws of the jurisdiction of its formation and
is duly qualified or licensed as a foreign corporation to do
business, and is in good standing (to the extent such concept or a
comparable status is recognized), in each jurisdiction where the
character of the properties and assets occupied, owned, leased or
operated by it or the nature of its business makes such
qualification or licensing necessary except for any such failures
to be so qualified or licensed and in good standing that,
individually and in the aggregate, have not had and would not
reasonably be expected to have a material adverse effect on such
Purchasers’ ability to consummate the
Transactions.

 


Section 3.2 Authority. Such Purchaser has all
necessary power and authority to execute and deliver this Agreement
and each other Transaction Document to which it is or, at the
Closing, will become a party, to perform its obligations under this
Agreement and each such other Transaction Document, and to
consummate the Transactions. The execution and delivery of this
Agreement and each other Transaction Document, and the consummation
of the Transactions, have been duly and validly authorized by all
requisite action of such Purchaser, and no other proceedings on the
part of such Purchaser are necessary to authorize this Agreement
and each such other Transaction Document, or to consummate the
Transactions.

 


Section 3.3 Enforceability. This Agreement and each
Transaction Document constitutes or, upon execution, will
constitute the valid, legal and binding obligations of the such
Purchaser, enforceable against such Purchaser in accordance with
their respective terms, subject to the Bankruptcy and Equity
Exception.

 


Section
3.4 No Conflict; Required Consents and Approvals.

 


(a) The
execution, delivery and performance by such Purchaser of this
Agreement and each of the Transaction Documents to which such
Purchaser is or will be a party, and the consummation of the
Transactions, do not and will not: (i) conflict with or violate the
certificate of incorporation or bylaws (or equivalent
organizational documents) of such Purchaser; (ii) conflict with or
violate any Applicable Law; or (iii) result in any breach of,
constitute a default (or an event that, with notice or lapse of
time or both, would become a default or breach) under or require
any consent of any Person pursuant to, any material contract or
permit of such Purchaser, except, in the case of the foregoing
clauses (i), (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences that would not,
individually or in the aggregate, have a material adverse effect on
such Purchaser’s ability to consummate the
Transactions.

 




 

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(b) The
execution, delivery and performance by such Purchaser of this
Agreement and each of the other Transaction Documents to which such
Purchaser will be a party or the consummation of the Transactions
by such Purchaser do not, and the performance of this Agreement by
such Purchaser will not, require any consent, approval
authorization or permit of or filing with or notification to, any
Governmental Entity for such performance.

 


Section 3.5 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 or any of the other Transaction Documents based upon
arrangements made by or on behalf of such Purchaser.

 


Section
3.6 Unregistered Securities.

 


(a) Such
Purchaser is acquiring the Purchased Securities for its own account
for investment purposes only and not with a view to any public
distribution thereof or with any intention of selling, distributing
or otherwise disposing of the Purchased Securities in a manner that
would violate the registration requirements of the Securities Act
or any applicable state securities law.

 


(b) Such
Purchaser is an “accredited investor” within the
meaning of Rule 501 under the Securities Act and is able to bear
the risk of its investment in Purchased Securities. Such Purchaser
has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the
purchase of the Purchased Securities, and has so evaluated the
merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Purchased Securities and,
at the present time, is able to afford a complete loss of such
investment.

 


(c) Such
Purchaser has been furnished with all materials relating to the
business, finances and operations of the Company and its
Subsidiaries that have been requested and materials relating to the
offer and sale of the Purchased Securities that have been requested
by such Purchaser. Such Purchaser has been afforded the opportunity
to ask questions of the Company and its Subsidiaries.

 


(d) Such
Purchaser understands that the Purchased Securities will bear a
restrictive legend substantially in the form as set forth
below:

 


THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


 




 

18








 






 


(e) Such
Purchaser understands that the Purchased Securities are
“restricted securities” and have not been registered
under the Securities Act or any applicable state securities law.
Such Purchaser understands that the Purchased Securities must be
held indefinitely unless and until the Purchased Securities are
registered for resale under the Securities Act or an exemption from
such registration is available. Purchaser has been advised by its
advisors of and is aware of the provisions of Rule 144 promulgated
under the Securities Act.

 


(f) Such
Purchaser understands that the Purchased Securities are being
offered and sold in reliance on transactional exemptions from the
registration requirements of federal and state securities laws and
that the Company is relying upon the truth and accuracy of the
representations, warranties, covenants, acknowledgments and
understandings of such Purchaser set forth in this Agreement in
order to determine the applicability of such exemptions and the
suitability of such Purchaser to acquire the Purchased
Securities.

 


(g) Such
Purchaser is not, to such Purchaser’s knowledge, purchasing
the Purchased Securities as a result of any advertisement, article,
notice or other communication regarding the Purchased Securities
published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or, to the
knowledge of such Purchaser, any other general solicitation or
general advertisement.

 



ARTICLE IV



COVENANTS

 


Section 4.1 Conduct of Business of the Company.
During the period from the date hereof and continuing until the
earlier of the termination of this Agreement in accordance with the
terms hereof and the Closing, the Company shall conduct the
businesses of the Company and its Subsidiaries only in the ordinary
course of business consistent past practice except as specifically
contemplated by this Agreement and the other Transaction Documents
and as may be required in connection with the consummation of the
Transactions.

 


Section
4.2 Reasonable Efforts

 


(a) Each of
the parties to this Agreement agrees to use all commercially
reasonable efforts, and to cooperate with each other parties, to
take, or cause to be taken, all appropriate action to do, or cause
to be done, all things necessary, proper or advisable under
Applicable Law or otherwise to consummate and make effective the
Transactions as promptly as practicable, including, subject to any
applicable limitations set forth in this Section and other
provisions of this Agreement, causing the satisfaction of the
respective conditions set forth in Article V (Conditions to
Closing) and executing and delivering such other instruments and
doing and performing such other acts and things as may necessary or
reasonably desirable for effecting the consummation of the
Transactions.

 


 




 

19








 






 

 


(b) Notwithstanding
anything to the contrary in this Agreement or the other Transaction
Documents, in no event will the Company or any Purchaser or any of
their respective Affiliates be obligated to litigate or participate
in the litigation of any Action, whether judicial or
administrative, brought by any Governmental Entity or appeal any
order (i) challenging or seeking to make illegal, delaying or
otherwise directly or indirectly restraining or prohibiting the
consummation of the Transactions, (ii) seeking to prohibit or limit
in any respect, or place any conditions on, the ownership or
operation by the Company, Purchasers or any of their respective
Subsidiaries or Affiliates, (iii) seeking, directly or indirectly,
to impose or confirm limitations on the ability of Purchasers or
any of their Subsidiaries or Affiliates to acquire or hold, or
exercise full rights of ownership of, any shares of capital stock
of the Company, or (iv) that would reasonably be expected to
impede, interfere with, prevent or materially delay the
Transactions or that would reasonably be expected to dilute the
benefits to Purchasers of the Transactions.

 


Section 4.3 Information on Shareholdings. After the
Closing, the Company shall promptly and accurately respond, and
shall use its commercially reasonable efforts to cause its
representatives and agents to respond, to reasonable requests for
information (which is otherwise not publicly available) made by a
Purchaser or its auditors relating to the actual holdings of such
Purchaser or its accounts.

 


Section 4.4 Public Disclosures. The Company and
Purchasers will consult with each other before issuing, and give
each other the opportunity to review and comment upon, any press
release, public statements or public disclosures with respect to
this Agreement, the other Transaction Documents or the
Transactions, and will not issue any such press release or make any
such public statement prior to such consultation and without the
prior written consent of the other parties, except as may be
required by Applicable Law or Judgment, in which case the parties
will use commercially reasonable efforts to agree on such public
disclosures.

 



ARTICLE V



CLOSING CONDITIONS

 


Section 5.1 Conditions to Obligations of Purchasers.
The obligations of Purchasers to consummate the Closing are subject
to the satisfaction or waiver of each of the following
conditions:

 


(a) Representations,
Warranties and Covenants of the Company. (i) The Company
shall have performed and satisfied in all material respects each of
its obligations set forth in this Agreement and the other
Transaction Documents required to be performed and satisfied by it
on or prior to the Closing Date; (ii) each of the representations
and warranties set forth in Section 2.3 (Capitalization) will have
been true and correct in all respects (other than de minimis
inaccuracies) as of the date of this Agreement; (iii) each of the
representations and warranties set forth in Section 2.1 (Organization and
Qualification), Section
2.4 (Valid Issuance of Securities) and Section 2.5 (Corporate
Authority) will have been true and correct in all respects as of
the date of this Agreement and at and as of the Closing with the
same force and effect as if made as of the Closing; (iv) each of
the other representations and warranties of the Company contained
in this Agreement or in any other Transaction Documents will have
been true and correct in all material respects as of the date of
this Agreement and at and as of the Closing (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) with the same force and effect as if made as
of the Closing or such other date; and (v) Purchasers will have
received a certificate signed by a duly authorized executive
officer of the Company affirming that the conditions in
Section
5.1(a)(i)-(iv) have been satisfied.


 







 

20








 





 





(b) No
Violation. No Law will have been enacted or exist that would
prohibit the Transactions or the consummation of the Closing. No
pending or threatened Action or Judgment will be in effect (i)
preventing (or seeking to prevent) the consummation of the
Transactions or (ii) limiting or restricting (or seeking to limit
or restrict) Purchasers’ ownership, conduct or operation of
the business of the Company and its Subsidiaries following the
Closing.

 


(c) Transaction
Documents. The Company shall have executed and delivered to
Purchasers this Agreement and all other Transaction Documents to
which it is a party.

 


(d) Target
Acquisition. The closing of the acquisition of Target
pursuant to the Target Agreement shall occur simultaneously with
the closing of the Transactions.

 


Section 5.2 Conditions to Obligations of the
Company. The obligations of the Company to consummate the
Closing are subject to the satisfaction or waiver of each of the
following conditions:

 


(a) Representations,
Warranties and Covenants of Purchasers. (i) Purchasers will
have performed and satisfied in all material respects each of its
covenants and obligations set forth in this Agreement and under the
other Transaction Documents required to be performed and satisfied
by it on or prior to the Closing Date; (ii) each of the
representations and warranties set forth in Section 3.1 (Organization and
Qualification) and Section
3.2 (Authority) will have been true and correct in all
respects as of the date of this Agreement and at and as of the
Closing with the same force and effect as if made as of the
Closing; (iii) each of the representations and warranties of the
Purchasers contained in this Agreement or in any other Transaction
Documents will have been true and correct in all material respects
as of the date of this Agreement and at and as of the Closing
(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) with the same force and
effect as if made as of the Closing or such other date; and (iv)
the Company shall have received a certificate signed by a duly
authorized representative of each Purchaser affirming that the
conditions in Section
5.2(a)(i)-(iii) have been satisfied.

 


(b) No
Violation. No Law will have been enacted or exist that would
prohibit the Transactions or the consummation of the Closing. No
pending or threatened Action or Judgment will be in effect (i)
preventing (or seeing to prevent) the consummation of the
Transactions or (ii) limiting or restricting (or seeking to limit
or restrict) Purchasers’ ownership, conduct or operation of
the business of the Company and its Subsidiaries following the
Closing.

 


(c) Transaction
Documents. Each Purchaser will have executed and delivered
to the Company this Agreement and all other Transaction Documents
to which it is a party.

 




 

21








 





 


ARTICLE VI



SURVIVAL OF REPRESENTATIONS, WARRANTIES,



COVENANTS AND AGREEMENT; INDEMNIFICATION

 


Section
6.1 General Survival.

 


(a) The
covenants and agreements of the Company and Purchasers contained in
this Agreement or in any other Transaction Document that by their
terms apply or are to be performed in whole or in part after the
Closing Date (“Post-Closing Covenants”)
will survive the Closing Date. The representations and warranties
of the Company and Purchasers contained in this Agreement or in any
other Transaction Document will survive and continue until the date
that is 18 months from the Closing Date (the “Expiration Date”);
provided, however,
that:

 


(i) the
Fundamental Representations and any claim of fraud or intentional
misrepresentation with respect to this Agreement or any of the
other Transaction Documents will survive indefinitely;

 


(ii) the
representations and warranties of the Company contained in
Section 2.13
(Taxes) will survive the Closing and continue in full force and
effect until the expiration of any applicable statutes of
limitations (after giving effect to any extensions or waivers) plus
ninety (90) Business Days (the “Specified Claims Expiration
Date”); and

 


(iii) if, in
accordance with this Article VI, (A) any
Indemnification Claims arising from any inaccuracy in or breach of
any representations and warranties not identified in subsections
(b)(i) or (b)(ii) are asserted prior to the Expiration Date, (B)
any Indemnification Claims arising from any inaccuracy in or breach
of any representations and warranties set forth in subsection
(b)(ii) above are asserted prior to the Specified Claims Expiration
Date, or (C) any Indemnification Claims arising from any inaccuracy
in or breach of any Fundamental Representations or from any breach
of any Post-Closing Covenant or any claims of fraud or intentional
misrepresentation are asserted at any time after the date hereof,
such Indemnification Claims shall continue until the final amount
of recoverable Losses are determined by final agreement,
settlement, judgment or award binding on the Company and Purchasers
in accordance with this Article VI (the final amount of
recoverable Losses so determined, the “Loss
Amounts”).

 


Section
6.2 Indemnification; Procedures.

 


(a) Subject to
the terms and conditions of this Article VI, the Company shall
indemnify, defend and hold harmless Purchasers and each of their
Affiliates and their respective directors, officers, employees,
shareholders, agents and other Representatives (the
“Purchaser
Indemnified Parties”) against all Losses any of the
Purchaser Indemnified Parties may suffer, sustain or become subject
to as a result of (i) any breach or misrepresentation of any
representation or warranty of the Company contained in Article II
and any other Transaction Document, and (ii) any breach of any
covenant, agreement, or obligation of the Company in this Agreement
or any other Transaction Document to which the Company is
party.


 







 

22








 





 





(b) Subject to
the terms and conditions of this Article VI, each Purchaser shall,
severally, and not jointly, indemnify, defend and hold harmless the
Company and each of its Affiliates and their respective directors,
officers, employees, shareholders, agents and other Representatives
(the “Company
Indemnified Parties”) against all Losses any of the
Company Indemnified Parties may suffer, sustain or become subject
to as a result of (i) any breach or misrepresentation of any
representation or warranty of such Purchaser contained in Article
III and any other Transaction Document, and (ii) any breach of
any covenant, agreement, or obligation of such Purchaser in this
Agreement or any other Transaction Document to which such Purchaser
is a party.

 


(c) The party
making a claim under this Article VI is referred to as the
“Indemnitee” and the party
against whom such claims are asserted under this Article VI is
referred to as the “Indemnifying Party”. In
the event that an Indemnitee seeks recovery, in accordance with the
terms of this Article
VI, in respect of an Indemnification Claim, the Indemnitee
will deliver a written notice (a “Claim Notice”) to the
Indemnifying Party. Each Claim Notice will (i) specify in
reasonable detail and in good faith the nature of the
Indemnification Claim being made and (ii) state the aggregate
dollar amount of Losses to which the Indemnitee is entitled to
indemnification pursuant to this Article VI that have been
incurred, or a good faith estimate of the aggregate dollar amount
of such Losses reasonably expected to be incurred, by the
Indemnitee pursuant to such Indemnification Claim (the
“Claim
Amount”).

 


(d) If the
Indemnifying Party wishes to object to the some or all
Indemnification Claims made in a Claim Notice, the Indemnifying
Party must deliver a written objection to the Indemnitee within
twenty (20) Business Days after receipt by the Indemnifying Party
of such Claim Notice expressing such objection and explaining in
reasonable detail and in good faith the basis such objection.
Following receipt by Indemnitee of the Indemnifying Party’s
objection, if any, the Indemnitee will promptly, and within ten
(10) Business Days, meet to agree on the rights of the respective
parties with respect to each Indemnification Claim that is the
subject of such a written objection. If the Indemnitee and
Indemnifying Party should so agree, (i) a memorandum setting forth
such agreement shall be prepared and executed by the Indemnitee and
Indemnifying Party, and (ii) as promptly as practicable and within
five (5) Business Days following execution of such memorandum,
subject to subsection (d) below, the Indemnifying Party will pay to
the Indemnitee in cash the aggregate dollar amount of Losses
payable to the Indemnitee pursuant to such memorandum. In the event
that the parties do not prepare and sign such a memorandum or such
memorandum does not address in full the written objections timely
delivered, within twenty (20) Business Days of receipt by the
Indemnifying Party from the Indemnitee of the written objection,
then the Indemnitee may commence an Action to resolve such dispute
and enforce its rights with respect such claims in any court of
competent jurisdiction.

 


(e) If the
Indemnitee does not receive a response from the Indemnifying Party
with respect to any Indemnification Claim set forth in a Claim
Notice by the end of the twenty (20) Business Day period referred
to in subsection (d) above, (i) the Indemnifying Party will be
deemed to have irrevocably waived any right to object to such
Indemnification Claim and to have agreed that Losses in the amount
of the applicable Claim Amount are indemnifiable under this
Agreement, and (ii) within five (5) Business Days following
expiration of such period, subject to subsection (d) below, the
Indemnifying Party will pay the Claim Amount to the Indemnitee. If
not paid, the Indemnitee may seek enforcement of the obligation
with respect to the Indemnification Claim in any court of competent
jurisdiction.

 




 

23








 





 





(f) Any amount
payable to the Indemnitee pursuant to subsection (d) or (e) above
will be paid within two (2) Business Days after the applicable
payment obligation accrues) by the Indemnifying Party by wire
transfer of dollars in immediately available funds to such account
or accounts designated by the Indemnitee in writing.

 


(g) If any
Action shall be brought against any Indemnitee in respect of which
indemnification is being sought pursuant to this Agreement, the
Indemnified Party shall have the right to assume the defense
thereof with counsel of its own choosing reasonably acceptable to
the Indemnitee. Any Indemnitee shall have the right to employ
separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnitee except to the extent that (i) the
employment thereof has been specifically authorized by Indemnifying
Party in writing, (ii) the Indemnifying Party has failed after a
reasonable period of time to assume such defense and to employ
counsel or (iii) in such action there is, in the reasonable opinion
of counsel, a material conflict on any material issue between the
position of the Indemnifying Party and the position of the
Indemnitee, in which case the Indemnifying Party shall be
responsible for the reasonable fees and expenses of no more than
one such separate counsel. The Indemnifying Party will not be
liable to any Indemnitee under this Agreement (y) for any
settlement by an Indemnitee effected without the Indemnifying
Party’s prior written consent, which shall not be
unreasonably withheld or delayed; or (z) to the extent, but only to
the extent that a Loss is attributable to any Indemnitee’s
breach of any of the representations, warranties, covenants or
agreements made by such Indemnitee in this Agreement or in the
other Transaction Documents.

 


Section 6.3 Tax Treatment of Indemnity Payments. Any
indemnification payment made pursuant to this Article will be
treated for all tax-related purposes as an adjustment to the
Purchase Price paid by such Indemnitee.

 



ARTICLE VII



TERMINATION

 


Section 7.1 Termination.

 


(a) At any
time prior to the Closing, upon written notice to the other
parties, this Agreement may be terminated and the Transactions
abandoned by either the Company or any Purchaser as set forth
below, in each case as to such Purchaser’s obligations
hereunder only and without any effect whatsoever on the obligations
between the Company and the other Purchasers:

 


(i) by mutual
written consent of the Company and such Purchaser;

 


(ii) by either
the Company or such Purchaser, if any Action preventing the
consummation of the Transactions has become final and
nonappealable;

 


(iii) by such
Purchaser:

 


(A) if the
Closing has not occurred on or before May 31, 2021 (the
“Outside
Date”); provided, however, that the right to terminate
this Agreement under this subsection (A) will not be available to
such Purchaser if a breach of this Agreement by such Purchaser has
resulted in the failure of the Closing to be consummated before the
Outside Date;


 







 

24








 





 





(B) if the
Company has breached any representation, warranty, covenant or
agreement contained herein and such breach has not been cured
within ten (10) Business Days after receipt by the Company of
written notice of such breach (provided, however, that no such cure period will
be available or applicable to any such breach which by its nature
cannot be cured) and, if not cured within such ten (10) Business
Day period and at or prior to the Closing, such breach would result
in the failure of any of the conditions set forth in Section 5.1 (Conditions to
Obligations of Purchasers) to be satisfied;

 


(C) between
the date of this Agreement and the Closing, an event or condition
occurs that has or is reasonably likely to have a Material Adverse
Effect; and

 


(iv) by the
Company, if such Purchaser has breached any representation,
warranty, covenant or agreement contained herein and such breach
has not been cured within ten (10) Business Days after receipt by
such Purchaser of written notice of such breach (provided, however,
that no such cure period will be available or applicable to any
such breach which by its nature cannot be cured) and if not cured
within such ten (10) Business Day period and at or prior to the
Closing, such breach would result in the failure of any of the
conditions set forth in Section 5.2 (Conditions to
Obligations of the Company) to be satisfied.

 


(b) This
Agreement automatically terminates, without further action by any
Party, upon the termination of the Target Agreement.

 


Section 7.2 Effect of Termination. In the event of
termination of this Agreement as set forth in Section 7.1 (Termination), this
Agreement shall will become void and there will be no Liability or
obligation on the part of the Company or such Purchaser, or their
respective officers, directors, stockholders, Affiliates or
Representatives; provided,
however, that no party will
be relieved from Liability in connection with any breach of such
party’s representations, warranties or covenants contained in
this Agreement or the other Transaction Documents.

 



ARTICLE VIII



MISCELLANEOUS

 


Section 8.1 Entire Agreement; Assignment;
Successors. This Agreement and the other Transaction
Documents (a) constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof and
supersede all other prior and contemporaneous agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof and (b) may not be assigned by
operation of Law or otherwise; provided, however, that a Purchaser may assign
any or all of its rights and obligations under this Agreement to
any direct or indirect wholly-owned Subsidiary of such Purchaser,
but no such assignment shall relieve such Purchaser of its
obligations hereunder if such assignee does not perform such
obligations. Any purported assignment of this Agreement in
contravention of this Section shall be null and void and of no
force or effect. The Company represents and warrants to each of the
Purchasers that it is not entering into any side letter or other
agreement with any Purchaser that grants such Purchaser additional
rights or contemplates terms and conditions different from those
set forth in this Agreement and the Registration Rights
Agreement.

 





 

25








 





 





Section 8.2 Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect, so long as the economic or legal
substance of the transaction contemplated by this Agreement is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal
or incapable of being enforced, 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 be consummated as
originally contemplated to the fullest extent possible, provided
that in no event shall Purchasers be obligated to complete the
purchase of the Purchased Securities unless the sale of all of the
Purchased Securities is completed simultaneously at the
Closing.

 


Section 8.3 Notices. All notices and demands
provided for in this Agreement or the Transaction Documents will be
(a) in writing and shall be given by registered or certified mail,
return receipt requested, air courier guaranteeing overnight
delivery or personal delivery, and (b) via e-mail, to the following
addresses:

 


(i) if to the
Company:

 


Liberated
Syndication, Inc.


5001
Baum Blvd, Suite 770


Pittsburgh, PA
15213


Attention: Laurie
Sims


Email:
laurie@libsyn.com

 


with a
copy to:


 


Faegre
Drinker Biddle & Reath LLP


1144
15th Street, Suite 3400


Denver,
Colorado 80202


Attention: Jeffrey
A. Sherman


Email:
jeff.sherman@faegredrinker.com


 


(ii) if to
Purchasers:

 


at the
address indicated on Schedule A

 


or to
such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set
forth above. All notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; upon actual receipt if sent by certified or registered
mail, return receipt requested; upon actual receipt if sent by
overnight courier copy; when receipt is acknowledged, if sent via
e-mail; and upon actual receipt when delivered to an air courier
guaranteeing overnight delivery.


 







 

26








 





 





Section 8.4 Expenses. Except as may be otherwise
agreed in writing, all costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors
and accountants, incurred in connection with this Agreement, the
other Transaction Documents and the Transactions will be paid by
the party incurring such costs and expenses whether or not the
Closing shall have occurred; provided, however, that accountable expenses of
up to $50,000 will be borne and paid by the Company to Cadwalader,
Wickersham & Taft LLP, in connection with the
Transactions.

 


Section 8.5 Governing Law; Submission to
Jurisdiction. This Agreement, and all claims or causes of
action (whether in contract or tort) that may be based upon, arise
out of or relate to this Agreement or the negotiation, execution or
performance of this Agreement (including any claim or cause of
action based upon, arising out of or related to any representation
or warranty made in or in connection with this Agreement), will be
construed in accordance with and governed by the laws of the State
of Delaware without regard to principles of conflicts of laws. Any
action against any party relating to the foregoing will be brought
in any federal or state court of competent jurisdiction located
within the State of Delaware, and the parties hereto irrevocably
submit to the non-exclusive jurisdiction of any federal or state
court located within the State of Delaware over any such action.
The parties hereby irrevocably waive, to the fullest extent
permitted by Applicable Law, any objection which they may have to
the laying of venue of any such dispute brought in such court or
any defense of inconvenient forum for the maintenance of such
dispute. Each of the parties agrees that a judgment in any such
dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Applicable
Law.

 


Section 8.6 Waiver of Jury Trial. EACH OF THE
PARTIES TO THIS AGREEMENT EACH HEREBY WAIVES, AND AGREES TO CAUSE
ITS AFFILIATES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES
TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.

 


Section 8.7 Interpretation; Article and Section
References. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to
be part of or to effect the meaning or interpretation of this
Agreement. All references in this Agreement to Articles, Sections,
Subsections, Annexes, Exhibits and Schedules are references to
Articles, Sections, Subsections, Exhibits and Schedules,
respectively, in and to this Agreement, unless otherwise specified.
All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. The words
“include” or “including” mean
“include, without limitation” or “including,
without limitation,” as the case may be, and the language
following “include” or “including” shall
not be deemed to set forth an exhaustive list. Any capitalized
terms used in any Annex, Exhibit or Schedule but not otherwise
defined therein have the meaning as defined in this Agreement. All
Annexes, Exhibits and Schedules annexed hereto or referred to in
this Agreement are incorporated in and made a part of this
Agreement as if set forth in this Agreement.

 





 

27








 





 





Section 8.8 No Third-Party Beneficiaries. This
Agreement will be binding upon and inure solely to the benefit of
each party to this Agreement, its successors and permitted assigns
(if any) and nothing in this Agreement is intended to or shall
confer upon any other Person any legal or equitable rights,
benefits or remedies of any nature whatsoever under or by reason of
this Agreement.

 


Section 8.9 Counterparts; Electronic Signature. This
Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original but all of which shall constitute
one and the same agreement. This Agreement may be executed by
facsimile or electronic (.pdf) signature and a facsimile or
electronic (.pdf) signature shall constitute an original for all
purposes.

 


Section
8.10 No Waiver; Modifications in Writing.

 


(a) No failure
or delay on the part of any party in exercising any right, power or
remedy under this Agreement will operate as a waiver of such right,
power or remedy, nor will any single or partial exercise of any
such right, power or remedy preclude any other or further exercise
of any other right, power or remedy. The remedies provided for in
this Agreement are cumulative and are not exclusive of any remedies
that may be available to a party at law or in equity or
otherwise.

 


(b) Except as
otherwise provided in this Agreement, no amendment, waiver,
consent, modification or termination of any provision of this
Agreement will be effective unless signed by each of the parties
affected by such amendment, waiver, consent, modification or
termination. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this
Agreement and any consent to any departure by the Agreement from
the terms of any provision of this Agreement will be effective only
in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this
Agreement, no notice to or demand on the party in any case will
entitle the party to any other or further notice or demand in
similar or other circumstances. Any investigation by or on behalf
of any party shall not be deemed to constitute a waiver by the
party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. This Agreement
may be amended, modified or supplemented by the parties at any
time.

 


Section 8.11 Attorneys’ Fees. In the event an
Action is brought to enforce or interpret any provision of this
Agreement, the prevailing party, or in the event that there is no
prevailing party, then the substantially prevailing party, shall be
entitled to recover documented fees and costs of legal counsel in
an amount to be fixed by the court.

 


Section 8.12 No Presumption Against Drafting Party.
The parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore,
waive the application of any Law or rule of construction providing
that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or
document.

 


[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 




 

28








 






 


IN
WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above
written.

 


	
 

	
 

LIBERATED
SYNDICATION, INC.

 


 

 


By:
/s/ Laurie Ann
Sims


Name: Laurie
Ann Sims


Title:
President and COO








 



 







 








 





 





IN
WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above
written.

 





If
Purchaser is an entity:


	
 

	
 

___________________________________


(Purchaser Name)


 

 


By:
_________________________________


      (Sign
Here)


Name: ______________________________


Title: ______________________________











 


If
Purchaser is an individual:


	
 

	
 

____________________________


(Sign Here)


Print
Name: __________________

  







 




 


 


 




 








 





 






ANNEX I


DEFINED
TERMS

 


“Acquisition” means, any
acquisition, directly or indirectly, whether in one transaction or
in a series of related transactions (and whether by merger,
consolidation, acquisition of assets or stock, recapitalization,
restructuring or otherwise) of all or any substantial portion of
the ownership or equity interests in or assets of any separate
Person or business.

 


“Action” means any action,
cause of action, claim, complaint, charge, suit, demand, inquiry,
investigation, indictment, litigation, hearing, mediation,
arbitration or other proceeding, whether civil, criminal,
administrative, judicial or investigative, formal or informal,
whether at Law or in equity and whether private or public,
including by or before any Governmental Entity.

 


“Affiliate” means, with
respect to a specified Person, any other Person, directly or
indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For purposes of this
definition, “control” (including, with correlative
meanings, “controlling,” “controlled by”
and “under common control with”) means the power to
direct or cause the direction of the management and policies of
such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; provided, however, that the Company and the
Purchasers shall not be considered Affiliates for purposes of this
Agreement.

 


“Agreement” has the
meaning set forth in the introductory paragraph of this
Agreement.

 


“Applicable Law” means,
with respect to any Person, any Law applicable to such Person or
any of its respective properties, assets, officers, directors,
employees, consultants or agents.

 


“Balance Sheet” means the
most recent balance sheet, together with all related notes and
schedules to such balance sheet, contained in the Company’s
most recent SEC filing as of the date of this
Agreement.

 


“Bankruptcy and Equity
Exception” has the meaning set forth in Section
2.6.

 


“Business Day” means any
day other than a Saturday, Sunday, any federal legal holiday or day
on which banking institutions in the State of Pennsylvania are
authorized or required by Law or other governmental action to
close.

 


“Claim Amount” has the
meaning set forth in Section 6.2(c).

 


“Claim Notice” has the
meaning set forth in Section 6.2(c)

 


“Closing” shall have the
meaning set forth in Section 1.2(a).

 


“Closing Date” shall have
the meaning set forth in Section 1.2(a).

 


“Code” means the Internal
Revenue Code of 1986, as amended.

 


“Common Stock” means the
common stock, par value $0.001 per share, of the
Company.

 


“Company” has the meaning
set forth in the introductory paragraph of this
Agreement.

 




 

A-1








 





 


“Company Awards” means the
Awards (as defined in the Plan) or any other equity awards approved
by the Company’s board of directors.

 


“Company Data” means
Confidential Data held by the Company or held by any third party in
connection with the provision of services to and/or further to an
agreement with the Company.

 


“Company Data and Data
Sets” has the meaning set forth in Section
2.19(g).

 


“Company Indemnified
Parties” has the meaning set forth in Section
6.2(b).

 


“Company Plan” means the
Company’s 2018 Omnibus Equity Incentive Plan.

 


“Confidential Data” means
(i) proprietary or confidential Data, including Personal
Information, of the Company and (ii) proprietary or confidential
Data, including Personal Information, of any third party that has
been entrusted to the Company.

 


“Contracts” means any
contract, agreement, instrument, option, lease, license, sales and
purchase order, warranty, note, bond, mortgage, indenture,
obligation, commitment, binding application, arrangement or
understanding, whether written or oral, express or implied, in each
case as amended and supplemented from time to time.

 


“Data” means data and
information of any kind (including images, software code, and other
works, files, or data elements), in electronic or tangible form.
“Data”
also includes any data and information in oral form if so indicated
or if suggested by the context in which the term is
used.

 


“Data Protection Laws”
means all Applicable Laws and published privacy policies and
internal privacy policies and guidelines relating to privacy, data
protection and data security, including with respect to the
collection, storage, transmission, transfer (including cross-border
transfers), disclosure and use of personally identifiable
information (including personally identifiable information of
employees, contractors, and third parties).

 


“Disclosure Schedule” has
the meaning set forth in Article II.

 


“Employee Benefit Plan”
means any employee benefit plan, as defined in Section 3(3) of
ERISA, which is sponsored, maintained, contributed to by (or to
which there is an obligation to contribute of) the Company or any
of its ERISA Affiliates or under which the Company or any ERISA
Affiliate has or could reasonably be expected to have present or
future liability.

 


“Encumbrance” means any
mortgage, claim, encumbrance, pledge, lien (statutory or
otherwise), security agreement, conditional sale or trust receipt
or a lease, consignment or bailment, preference or priority,
assessment, deed of trust, charge, easement, servitude or other
encumbrance upon or with respect to any property of any
kind.

 


“Equity Securities” has
the meaning set forth in Section 1.3(a).

 


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


 







 

A-2








 





 





“ERISA Affiliate” means
each person (as defined in Section 3(9) of ERISA) that, together
with the Company, is, or at any relevant time was, treated as a
“single employer” within the meaning of Section 4001(b)
of ERISA or Section 414(b), (c), (m) or (o) of the
Code.

 


“ERISA Event” means any of
the following: (i) a Reportable Event with respect to any Employee
Benefit Plan; (ii) any Employee Benefit Plan is insolvent or in
endangered or critical status within the meaning of Section 432 of
the Code or Section 4241 or 4245 of ERISA or notice of any such
insolvency has been given to any of the Company or any of its ERISA
Affiliates; (iii) any Employee Benefit Plan is in “at
risk” status (as defined in Section 430 of the Code or
Section 303 of ERISA); (iv) any Employee Benefit Plan (other than a
Multiemployer Plan) has failed to satisfy the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA
(whether or not waived in accordance with Section 412(c) of the
Code or Section 302(c) of ERISA), or any of the Company or its
Affiliates have applied for or received a waiver of the minimum
funding standard or an extension of any amortization period within
the meaning of Section 412 of the Code or Section 302, 303 or 304
of ERISA with respect to any Employee Benefit Plan; (v) the Company
or any of its ERISA Affiliates fails to make by its due date a
required installment under Section 430G) of the Code with respect
to any Employee Benefit Plan or to make any required contribution
to a Multiemployer Plan when due; (vi) the Company or any of its
ERISA Affiliates incurs (or is reasonably expected to incur) any
liability to or on account of an Employee Benefit Plan pursuant to
Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 436(t), 4971, 4975 or 4980 of the
Code or is notified in writing that it will incur any liability
under any of the foregoing Sections with respect to any Employee
Benefit Plan; (vii) any proceeding is instituted (or is reasonably
likely to be instituted) to terminate any Employee Benefit Plan or
to appoint a trustee to administer any Employee Benefit Plan, or
any written notice of any such proceeding is given to any of the
Company or any of its ERISA Affiliates; (viii) the imposition on
account of any Employee Benefit Plan of any Encumbrance under the
Code or ERISA on the assets of the Company or any of its ERISA
Affiliates or notification to the Company or any of its ERISA
Affiliates that such a Encumbrance will be imposed on the assets of
the Company or any of its ERISA Affiliates; (ix) the occurrence of
an event, circumstance, transaction, or failure that results in
liability to the Company or any of its ERISA Affiliates under Title
I of ERISA or a Tax under any of Sections 4971 through 5000 of the
Code; or (x) the complete or partial withdrawal of the Company or
any of its ERISA Affiliates from a Multiemployer Plan that results
in or is reasonably expect to result in the imposition of
Withdrawal Liability or insolvency under Title IV of ERISA of any
Multiemployer Plan.

 


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

 


“Expiration Date” has the
meaning set forth in Section 6.1(a).

 


“Export Control Laws”
means (i) all U.S. import and export Laws (including those Laws
under the authority of U.S. Departments of Commerce (Bureau of
Industry and Security) codified at 15 CFR, Parts 700-799; Homeland
Security (Customs and Border Protection) codified at 19 CFR, Parts
1-199; State (Directorate of Defense Trade Controls) codified at 22
CFR, Parts 103, 120-130; and Treasury (Office of Foreign Assets
Control) codified at 31 CFR, Parts 500-599) and (ii) all comparable
Applicable Laws outside the United States.

 


“Filed SEC Documents” has
the meaning set forth in Section 2.8.

 




 

A-3








 





 


“Fundamental
Representations” means: (i) with respect to the
Company, the representations and warranties set forth in Sections
2.1 (Organization and Qualification), 2.3 (Capitalization), 2.4
(Valid Issuance of Securities), 2.5 (Corporate Authority), 2.6
(Enforceability) and 2.24 (Brokers) and (ii) with respect to the
Purchasers, the representations and warranties set forth in
Sections 3.1 (Organization and Qualification), 3.2 (Authority) 3.3
(Enforceability) and 3.5 (Brokers).

 


“GAAP” means generally
accepted accounting principles in the United States.

 


“Governmental Entity”
means any federal, national, supranational (including the European
Union and the European Commission), state, provincial, local or
similar government, governmental, regulatory, administrative or
quasi-governmental authority, branch, office agency, commission or
other body, or any court, tribunal, or arbitral or judicial body
(including any grand jury).

 


“Indemnification Claims”
means any claim for indemnification pursuant to this
Agreement.

 


“Indemnifying Party” has
the meaning set forth in Section 6.2(c).

 


“Indemnitee” has the
meaning set forth in Section 6.2(c).

 


“IP License” means any
agreement (i) granting to the Company or any of its Subsidiaries
any right to use or otherwise practice or exploit any IP Rights or
(ii) under which the Company or any of its Subsidiaries grants
licenses or other rights in or to use or otherwise practice or
exploit any IP Rights.

 


“IP Rights” means any or
all of the following and all rights in, arising out of, or
associated therewith (including all applications or rights to apply
for any of the following, and all registrations, renewals,
extensions, future equivalents, and restorations, now or hereafter
in force and effect): (a) all United States, international, and
foreign: (i) patents, utility models, and applications therefor,
and all reissues, divisions, reexaminations, provisionals,
continuations and continuations-in-part, and equivalent or similar
rights anywhere in the world in inventions, discoveries, and
designs, including invention disclosures; (ii) all trademarks,
trade names, logos, and service marks, trade dress, and all
applications therefor, and all goodwill associated therewith
throughout the world; (iii) all copyrights and tangible works of
expression, and all applications therefor, and all other rights
corresponding thereto (including moral rights), throughout the
world; (iv) all trade secrets and other rights in know-how and
confidential or proprietary information; (v) all rights in Internet
domain names, World Wide Web addresses and applications and
registrations therefor, and all related contract rights therein;
and (vi) any other intellectual property rights including similar,
corresponding, or equivalent rights to any of the foregoing in
items (i) through (v) above, and including any such rights in
computer software, databases, datasets and Data (each,
“Software”), in each case
anywhere in the world.

 


“IRS” means the Internal
Revenue Service.

 


“IT Systems” means all
information technology and computer systems, including servers,
Software, computer firmware, computer hardware, electronic Data
processing, information, record keeping, website, databases,
circuits, networks, network equipment, interfaces, platforms,
peripherals computer systems, and other computer, communications
and telecommunications assets and equipment, and information
contained therein or transmitted thereby, including any cloud or
other outsourced systems used by or for the Company relating to the
transmission, storage, maintenance, organization, presentation,
generation, processing or analysis of Data and information, whether
or not in electronic format, in each foregoing case, owned by the
Company and the Subsidiaries and necessary to the conduct of the
business of the Company and its Subsidiaries.


 







 

A-4








 





 





“Judgment” means any
outstanding judgment, order, injunction, ruling, writ or decree of
any Governmental Entity or arbitrator of applicable
jurisdiction.

 


“Law” means any federal,
state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law (including common law),
rule or regulation (including the rules and regulations of any
national securities exchange or national securities quotation
system).

 


“Liability” means, with
respect to any Person, any liability or obligation of such Person
of any kind, character or description, whether known or unknown,
absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, secured or unsecured, joint or several, due or to
become due, vested or unvested, executory, determined, determinable
or otherwise and whether or not the same is required to be accrued
on the financial statements of such Person.

 


“Loss Amounts” has the
meaning set forth in Section 6.1(a).

 


“Losses” means any and all
deficiencies, judgments, settlements, Actions, assessments,
liabilities, losses, damages (whether direct, indirect, incidental
or consequential), interest, fines, penalties, costs, expenses
(including legal, accounting and other costs and expenses of
professionals) incurred in connection with investigating,
defending, settling or otherwise satisfying any and all Actions,
assessments, judgments or appeals, and in seeking indemnification
therefor, and interest on any of the foregoing from the date
incurred until paid at the prime rate.

 


“Material Adverse Effect”
has the meaning set forth in Section 2.1(a).

 


“Material Contract” means
any Contract that is material to the business, operations, assets,
financial condition, results of operations or prospects of the
Company and its Subsidiaries, taken as a whole.

 


“Material Permits”
has the meaning set forth in Section 2.14(b).

 


“Multiemployer Plan” means
any multiemployer plan, as defined in Section 4001(a)(3) of ERISA,
which is contributed to by (or to which there is an obligation to
contribute of) the Company or any of its ERISA Affiliates, and each
such plan for the six-year period immediately following the latest
date on which the Company or any of its ERISA Affiliates
contributed to or had an obligation to contribute to such
plan.

 


“Outside Date” has the
meaning set forth in Section
7.1(a)(iii)(A).

 


“Permit” has the meaning
set forth in Section
2.14(b).

 


“Permitted Encumbrances”
means (i) any Encumbrance for Taxes not yet due or delinquent or
being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP,
(ii) any statutory Encumbrance arising in the ordinary course of
business by operation of law with respect to a liability that is
not yet due or delinquent, (iii) any Encumbrance created by
Applicable Law, such as materialmen’s liens, mechanics’
liens and other similar liens, arising in the ordinary course of
business with respect to a liability that is not yet due or
delinquent or that are being contested in good faith by appropriate
proceedings, (iv) Encumbrances securing financing obtained in the
ordinary course of the Company’s operations, including
financing with respect to the acquisition or lease of equipment and
financing of insurance premiums, and (v) Encumbrances incurred in
connection with the extension, renewal or refinancing of the
indebtedness secured by Encumbrances of the type described in
clause (iv) above.

  




 

A-5








 





 


“Person” means any
individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company,
unincorporated organization, government or any agency,
instrumentality or political subdivision thereof or any other form
of entity.

 


“Personal Information”
means, as pertinent to an identified or identifiable employee,
applicant, contractor, individual business contact, website user,
customer, donor, patient, or other natural person: (i) the natural
person’s last name in combination with any one or more of the
following items: the natural person’s street address,
telephone number, email address, photograph, driver’s license
number, social security or other national identification number,
passport number, credit card number, biometric identifier, bank
information, account number, or health information, (ii) payment
cardholder information, and (iii) any other Data relating to such
identified or identifiable natural person.

 


“Potential Purchaser” has
the meaning set forth in Section 1.3(a).

 


“Post-Closing Covenants”
has the meaning set forth in Section 6.1(a).

 


“Preemptive Rights
Purchaser” means any Purchaser who is indicated to
have preemptive rights on Schedule A.

 


“Preferred Stock” has the
meaning set forth in Section 2.3(a).

 


“Principal Market” means
the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq
Global Select Market, the Nasdaq Capital Market or the NASDAQ
Global Market.

 


“Privacy Policies” means
each external policy concerning the privacy, security, or
processing of Personal Information in the conduct of the
Company’s business.

 


“Privacy Requirements”
means all Applicable Laws imposed by a competent Governmental
Entity concerning or related to: (i) the processing of Personal
Information; the security of Personal Information; the geographic
location where Personal Information is stored or otherwise
Processed; and/or (ii) notification to Data subjects or any
Governmental Entity in connection with a Security Breach involving
Personal Information.

 


“Public Offering” means a
public offering and sale of Equity Securities for cash registered
under the Securities Act.

 


“Purchase Price” means,
with respect to each Purchaser, the dollar amount set forth
opposite such Purchaser’s name on Schedule A hereto

 


“Purchased Securities”
means, with respect to each Purchaser, the number of shares of
Common Stock as set forth opposite such Purchaser’s name on
Schedule A
hereto.

 


“Purchaser Indemnified
Parties” has the meaning set forth in Section 6.2(a).

 


“Purchasers” has the
meaning set forth in the introductory paragraph of this
Agreement.







 

A-6








 





 


“Real Property” means,
with respect to any Person, all right, title and interest of such
Person in and to a parcel of real property owned, leased or
operated by such Person together with, in each case, all
improvements and appurtenant fixtures, equipment, personal
property, easements and other property and rights incidental to the
ownership, lease or operation.

 


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

 


“Related Party” with
respect to any specified Person, means: (i) any Affiliate of such
specified Person, or any director, executive officer, general
partner or managing member of such Affiliate; (ii) any Person who
serves as a director, executive officer, partner, member or in a
similar capacity of such specified Person; (iii) any Immediate
Family member of a Person described in clause (ii); or (iv) any
other Person who holds, individually or together with any Affiliate
of such other Person and any member(s) of such Person’s
Immediate Family, more than 5% of the outstanding equity or
ownership interests of such specified Person. For the purposes of
this definition, “Immediate Family,” with
respect to any specified Person, means such Person’s spouse,
parents, children and siblings, including adoptive relationships
and relationships through marriage, or any other relative of such
Person that shares such Person’s home.

 


“Representatives” means,
with respect to a specified Person, the officers, directors,
partners, members, managers, employees, investment advisers,
agents, counsel, accountants, investment bankers and other
representatives of such Person.

 


“Rights Offering” means
the issuance by the Company to existing holders of the
Company’s Equity Securities of rights to buy, within a fixed
time period, a proportional number of newly issued Equity
Securities, including those with an over-subscription option or
“backstop”.

 


“Sarbanes-Oxley Act” has
the meaning set forth in Section 2.8.

 


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

 


“SEC Reports” means
reports and statements filed or furnished by the Company with the
SEC under the Exchange Act, including all amendments, exhibits and
schedules thereto, and documents incorporated by reference
therein.

 


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

 


“Security Breach” means
the known or reasonably suspected loss, theft, material unplanned
unavailability or alteration, corruption, or unauthorized
modification, use, deletion, or disclosure, of Company
Data.

 


“Software” has the meaning
set forth in the definition of IP Rights.

 


“Specified Claims Expiration
Date” has the meaning set forth in Section
6.1(a)(ii).

 


“Stock Plan” has the
meaning set forth in Section 2.11.

 




 

A-7








 





 


“Subsidiary” means, with
respect to any Person, any entity of which securities or other
ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing
similar functions are at any time directly or indirectly owned by
such Person.

 


“Systems” means the
computer, information technology and data processing systems,
facilities and services used by or for the Company and its
Subsidiaries, including all Software, hardware, networks,
communications facilities, platforms and related systems and
services.

 


“Target” means
AdvertiseCast, LLC, a Wisconsin limited liability
company.

 


“Target Agreement” means
that certain Membership Interest Purchase Agreement entered into by
the Company dated even herewith, pursuant to which the Company or a
Subsidiary of the Company will, subject to the conditions set forth
therein, acquire all of the outstanding Equity Interests of
Target.

 


“Tax Returns” means any
return, report, election, claims for refund, disclosure,
declaration of estimated Taxes and information return or statement,
including any schedule or attachment thereto or any amendment
thereof, with respect to Taxes filed or required to be filed with
any Governmental Entity.

 


“Taxes” means all taxes,
assessments, duties, levies or other mandatory governmental charges
or other like assessments or charges in the nature of taxes imposed
by or paid to a Governmental Entity, including all federal, state,
local, foreign and other income, franchise, profits, gross
receipts, capital gains, capital stock, transfer, property, sales,
use, alternative or add-on minimum, value-added, occupation,
excise, severance, windfall profits, stamp, payroll, social
security, withholding and other taxes, assessments, duties, levies
or other mandatory governmental charges of any kind whatsoever paid
to a Governmental Entity (whether payable directly or by
withholding), all estimated taxes, deficiency assessments,
additions to tax, penalties and interest thereon and shall include
any liability for such amounts as a result of being a member of a
combined, consolidated, unitary or affiliated group.

 


“Taxing Authority” means
any Governmental Entity having authority with respect to
Taxes.

 


“Transaction Documents”
means this Agreement, the Registration Rights Agreement and all
other documents, certificates or agreements executed or delivered
by the parties in connection with the Transactions contemplated by
this Agreement and the Registration Rights Agreement.

 


“Transactions” has the
meaning set forth in Section 1.1.

 


“Unfunded Current
Liability” of any Employee Benefit Plan means the
amount, if any, by which the value of the accumulated plan benefits
under the Employee Benefit Plan, determined on a plan termination
basis in accordance with actuarial assumptions at such time
consistent with those prescribed by the Pension Benefit Guaranty
Corporation for purposes of Section 4044 of ERISA, exceeds the fair
market value of all plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid
contributions).

 


“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal, as those terms are defined in Part I of
Subtitle E of Title IV of ERISA, from such Multiemployer
Plan.

 




 

A-8