Exhibit 10.1


 





 



 


 


 


 


 


 


ASSET PURCHASE AGREEMENT


 


between


 


Belmont
Confections, Inc.,


 


as the Seller


 


and


 


BCI ACQUISITION, INC.,


 


(A wholly owned subsidiary of Tattooed Chef,
Inc.)


 


as the Buyer


 


dated as of


 


October 22, 2021


 


 


 


 


 




     


     


    

 


TABLE OF CONTENTS


 


	 	 	Page
	ARTICLE I	Definitions	1
	 	 	 
	ARTICLE II	Purchase and Sale	11
	2.1	Purchase and Sale of Assets	11
	2.2	Excluded Assets	12
	2.3	Assumed Liabilities	12
	2.4	Excluded Liabilities	13
	2.5	Purchase Price	14
	2.6	Purchase Price Adjustment	14
	2.7	Allocation of Purchase Price	17
	2.8	Withholding Tax	17
	2.9	Third Party Consents	17
	2.10	Valuation of TTCF Shares	17
	 	 	 
	ARTICLE III	Closing	17
	3.1	Closing	17
	3.2	Closing Deliverables	18
	 	 	 
	ARTICLE IV	Representations and warranties of seller	19
	4.1	Organization and Qualification of Seller	20
	4.2	Authority of Seller	20
	4.3	No Conflicts; Consents	20
	4.4	Financial Statements	21
	4.5	Undisclosed Liabilities	21
	4.6	Absence of Certain Changes, Events and Conditions	21
	4.7	Material Contracts	23
	4.8	Title to Purchased Assets	24
	4.9	Condition and Sufficiency of Assets	25
	4.10	Real Property	25
	4.11	Intellectual Property	26
	4.12	Inventory	29
	4.13	Accounts Receivable	29
	4.14	Customers and Suppliers	29
	4.15	Insurance	30
	4.16	Legal Proceedings; Governmental Orders	30
	4.17	Compliance With Laws; Permits	31
	4.18	Environmental Matters	31
	4.19	Employee Benefit Matters	33
	4.20	Employment Matters	35
	4.21	Taxes	37
	4.22	Brokers	37
	4.23	Food Safety	38
	4.24	Product Liability	38


 






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	 	 	Page
	4.25	CARES Act	38
	4.26	Accredited Investor	39
	4.27	Restricted Securities	39
	4.28	Full Disclosure	39
	 	 	 
	ARTICLE V	Representations and warranties of buyer	40
	5.1	Organization of Buyer	40
	5.2	Authority of Buyer	40
	5.3	No Conflicts; Consents	40
	5.4	Brokers	40
	5.5	Sufficiency of Funds	40
	5.6	Legal Proceedings	40
	 	 	 
	ARTICLE VI	Covenants	41
	6.1	Conduct of Business Prior to the Closing	41
	6.2	Access to Information	42
	6.3	No Solicitation of Other Bids	42
	6.4	Notice of Certain Events	43
	6.5	Employees and Employee Benefits	43
	6.6	Confidentiality	44
	6.7	Non-Competition; Non-Solicitation	44
	6.8	Governmental Approvals and Consents	45
	6.9	Books and Records	47
	6.10	Closing Conditions	47
	6.11	Public Announcements	47
	6.12	Bulk Sales Laws	47
	6.13	Receivables	48
	6.14	Transfer Taxes	48
	6.15	Tax Clearance Certificates	48
	6.16	Further Assurances	48
	6.17	Change of Seller Name	48
	 	 	 
	ARTICLE VII	Conditions to closing	49
	7.1	Conditions to Obligations of All Parties	49
	7.2	Conditions to Obligations of Buyer	49
	7.3	Conditions to Obligations of Seller	51
	 	 	 
	ARTICLE VIII	Indemnification	52
	8.1	Survival	52
	8.2	Indemnification By Seller	52
	8.3	Indemnification By Buyer	53
	8.4	Certain Limitations	53
	8.5	Indemnification Procedures	54
	8.6	Payments; Indemnification Escrow Fund	56
	8.7	Tax Treatment of Indemnification Payments	56


 






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	 	 	Page
	8.8	Effect of Investigation	56
	8.9	Exclusive Remedies	56
	 	 	 
	ARTICLE IX	Termination	57
	9.1	Termination	57
	9.2	Effect of Termination	58
	 	 	 
	ARTICLE X	Miscellaneous	58
	10.1	Expenses	58
	10.2	Notices	58
	10.3	Interpretation	60
	10.4	Headings	60
	10.5	Severability	60
	10.6	Entire Agreement	60
	10.7	Successors and Assigns	61
	10.8	No Third-party Beneficiaries	61
	10.9	Amendment and Modification; Waiver	61
	10.10	Governing Law	61
	10.11	Specific Performance	61
	10.12	Arbitration of Disputes	62
	10.13	Counterparts	62





 






    -iii-


     


    

 


ASSET PURCHASE AGREEMENT


 


This Asset Purchase Agreement
(this “Agreement”), dated as of October 22, 2021, is entered into between Belmont Confections Inc., a Delaware corporation
(“Seller”) and BCI Acquisition, Inc., a Delaware corporation (“Buyer”).


 


Recitals


 


WHEREAS, Seller is engaged
in the business of manufacturing and selling nutrition bars (the “Business”);


 


WHEREAS, Seller wishes to
sell and assign to Buyer, and Buyer wishes to purchase and assume from Seller, substantially all the assets, and certain specified liabilities,
of the Business, subject to the terms and conditions set forth herein; and


 


WHEREAS, a portion of the
purchase price payable by Buyer to Seller shall be placed in escrow by Buyer, the release of which shall be contingent upon certain events
and conditions, all as set forth in this Agreement and the Escrow Agreement (as defined herein).


 


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


 


ARTICLE
I

Definitions


 


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


 


“Accounts Receivable”
has the meaning set forth in Section 2.1(a).


 


“Acquisition Proposal”
has the meaning set forth in Section 6.3(a).


 


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


 


“Affiliate”
of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person. The term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.


 


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


 


“Allocation Schedule”
has the meaning set forth in Section 2.7.


 






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“Ancillary Documents”
means the Escrow Agreement, the Bill of Sale, the Assignment and Assumption Agreement, Intellectual Property Assignments, Assignment and
Assumption of Leases, Stock Subscription Agreement, Registration Rights Agreement, and the other agreements, instruments and documents
required to be delivered at the Closing.


 


“Assigned Contracts”
has the meaning set forth in Section 2.1(c).


 


“Assignment and Assumption
Agreement” has the meaning set forth in Section 3.2(a)(iii).


 


“Assignment and Assumption
of Lease” has the meaning set forth in Section 3.2(a)(v).


 


“Assumed Liabilities”
has the meaning set forth in Section 2.3.


 


“Audited Financial
Statements” has the meaning set forth in Section 4.3.


 


“Balance Sheet”
has the meaning set forth in Section 4.3.


 


“Balance Sheet Date”
has the meaning set forth in Section 4.3.


 


“Basket”
has the meaning set forth in Section 8.4(a).


 


“Benefit Plan”
has the meaning set forth in Section 4.19(a).


 


“Bill of Sale”
has the meaning set forth in Section 3.2(a)(ii).


 


“Books and Records”
has the meaning set forth in Section 2.1(l).


 


“Business”
has the meaning set forth in the recitals.


 


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


 


“Business IT Systems”
means all Software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized,
or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and
video) owned, leased, licensed, or used (including through cloud-based or other third-party service providers) in the conduct of the Business.


 


“Buyer”
has the meaning set forth in the preamble.


 


“Buyer Closing Certificate”
has the meaning set forth in Section 7.3(g).


 


“Buyer Indemnitees”
has the meaning set forth in Section 8.2.


 


“Buyer’s Accountants”
means Grant Thornton.


 


“Cap” has
the meaning set forth in Section 8.4(a).


 






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


 


“Closing”
has the meaning set forth in Section 3.1.


 


“Closing Date”
has the meaning set forth in Section 3.1.


 


“Closing Working
Capital” means: (a) Current Assets, less (b) Current Liabilities, determined as of the open of business on
the Closing Date.


 


“Closing Working
Capital Statement” has the meaning set forth in Section 2.6(a)(i).


 


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


 


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


 


“Current Assets”
means the current assets of the Business included in the line items set forth on Section 2.6(a)(i) of the Disclosure Schedules and
only to the extent acquired pursuant to the terms of this Agreement.


 


“Current Liabilities”
means the current liabilities of the Business included in the line items set forth on Section 2.6(a)(i) of the Disclosure Schedules
and only to the extent assumed pursuant to the terms of this Agreement.


 


“Direct Claim”
has the meaning set forth in Section 8.5(c).


 


“Disclosure Schedules”
means the Disclosure Schedules delivered by Seller and Buyer concurrently with the execution and delivery of this Agreement.


 


“Disputed Amounts”
has the meaning set forth in Section 2.6(b)(iii).


 


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


 


“Employment Agreement”
has the meaning set forth in Section 7.3(k).


 


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


 


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


 






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“Environmental Law”
means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution
(or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment
(including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to,
or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation,
processing, production, disposal or remediation of any Hazardous Materials. The term “Environmental Law” includes, without
limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601
et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended
by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C.
§§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.;
the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.


 


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


 


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


 


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


 


“ERISA Affiliate”
means all employers (whether or not incorporated) that would be treated together with the Seller or any of its Affiliates as a “single
employer” within the meaning of Section 414 of the Code or Section 4001 of ERISA.


 


“Escrow Agent”
means City National Bank, a national banking association.


 


“Escrow Agreement”
means the Escrow Agreement to be entered into by Buyer, Seller and the Escrow Agent at the Closing, substantially in the form of Exhibit A.


 


“Excluded Assets”
has the meaning set forth in Section 2.2.


 






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“Excluded Contracts”
has the meaning set forth in Section 2.2(a).


 


“Excluded Liabilities”
has the meaning set forth in Section 2.4.


 


“Financial Statements”
has the meaning set forth in Section 4.3.


 


“FIRPTA Certificate”
has the meaning set forth in Section 7.2(l).


 


“Food Safety Laws”
means any Governmental Orders, Laws, Permits or legally binding requirements of any Governmental Authorities, in each case, relating to
or imposing Liability or standards of conduct with respect to food safety, sanitation or quality, industrial hygiene (relating to food
processing facilities), human health (including public health) relating to food consumption, food contamination, or the development, testing,
manufacture, production, handling, holding, packaging, labeling, transportation, distribution, importing, exporting, storage, sale, licensing,
marketing or advertising of food and related products, including but not limited to the Federal Food, Drug and Cosmetic Act, the Food
Safety Modernization Act, Federal Meat Inspection Act, Poultry Products Inspection Act, Egg Products Inspection Act, Organic Foods Production
Act, Agricultural Marketing Act, Federal Trade Commission Act, state unfair competition and deceptive trade practices statutes, other
analogous Laws, as applicable, and the implementing regulations of the United States Food and Drug Administration, United States Department
of Agriculture, United States Federal Trade Commission, and any other foreign, federal, state or local equivalent, as applicable.


 


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


 


“Government Contracts”
has the meaning set forth in Section 4.7(a)(viii).


 


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


 


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


 


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


 


“Indemnification
Escrow Amount” means $2,000,000.


 


“Indemnification
Escrow Fund” has the meaning set forth in Section 3.2(c)(ii).


 


“Indemnified Party”
has the meaning set forth in Section 8.5.


 






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“Indemnifying Party”
has the meaning set forth in Section 8.5.


 


“Independent Accountant”
has the meaning set forth in Section 2.6(b)(iii).


 


“Insurance Policies”
has the meaning set forth in Section 4.15.


 


“Intellectual Property”
means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) issued
patents and patent applications (whether provisional or non-provisional), including divisionals, continuations, continuations-in-part,
substitutions, reissues, reexaminations, extensions, or restorations of any of the foregoing, and other Governmental Authority-issued
indicia of invention ownership (including certificates of invention, petty patents, and patent utility models) (“Patents”);
(b) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source
or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration,
and renewals of, any of the foregoing (“Trademarks”); (c) copyrights and works of authorship, whether or not copyrightable,
and all registrations, applications for registration, and renewals of any of the foregoing (“Copyrights”); (d) internet
domain names and social media account or user names (including “handles”), whether or not Trademarks, all associated web addresses,
URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not Copyrights;
(e) mask works, and all registrations, applications for registration, and renewals thereof; (f) industrial designs, and all
Patents, registrations, applications for registration, and renewals thereof; (g) trade secrets, know-how, inventions (whether or
not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections,
tools, methods, processes, techniques, and other confidential and proprietary information and all rights therein (“Trade Secrets”);
(h) computer programs, operating systems, applications, firmware and other code, including all source code, object code, application
programming interfaces, data files, databases, protocols, specifications, and other documentation thereof , other than Off-the-Shelf Software
(“Software”); and (i) rights of publicity; and (j) all other intellectual or industrial property and proprietary
rights.


 


“Intellectual Property
Agreements” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants not to
sue, waivers, releases, permissions and other Contracts, whether written or oral, relating to any Intellectual Property that is used or
held for use in the conduct of the Business as currently conducted or proposed to be conducted to which Seller is a party, beneficiary
or otherwise bound.


 


“Intellectual Property
Assets” means all Intellectual Property that is owned by Seller and used or held for use in the conduct of the Business as currently
conducted or proposed to be conducted, together with all (i) royalties, fees, income, payments, and other proceeds now or hereafter
due or payable to Seller with respect to such Intellectual Property; and (ii) claims and causes of action with respect to such Intellectual
Property, whether accruing before, on, or after the date hereof/accruing on or after the date hereof, including all rights to and claims
for damages, restitution, and injunctive and other legal or equitable relief for past, present, or future infringement, misappropriation,
or other violation thereof.


 


“Intellectual Property
Assignments” has the meaning set forth in Section 3.2(a)(iii).


 






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“Intellectual Property
Registrations” means all Intellectual Property Assets that are subject to any issuance, registration, or application by or with
any Governmental Authority or authorized private registrar in any jurisdiction, including issued Patents, registered Trademarks, domain
names and Copyrights, and pending applications for any of the foregoing.


 


“Interim Balance
Sheet” has the meaning set forth in Section 4.3.


 


“Interim Balance
Sheet Date” has the meaning set forth in Section 4.3.


 


“Interim Financial
Statements” has the meaning set forth in Section 4.3.


 


“Inventory”
has the meaning set forth in Section 2.1(b).


 


“Knowledge of Seller
or Seller’s Knowledge” or any other similar knowledge qualification, means the actual or constructive knowledge of George
Tsudis and James Holcomb, after due inquiry.


 


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


 


“Leased Real Property”
has the meaning set forth in Section 4.10(b).


 


“Leases”
has the meaning set forth in Section 4.10(b).


 


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


 


“Licensed Intellectual
Property” means all Intellectual Property in which Seller holds any rights or interests granted by other Persons, including
any of Seller’s Affiliates, that is used or held for use in the conduct of the Business as currently conducted or proposed to be
conducted.


 


“Losses”
means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing
any insurance providers; provided, however, that “Losses” shall not include punitive damages, except to the extent
actually awarded to a Governmental Authority or other third party.


 


“Material Adverse
Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually
or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets
of the Business, (b) the value of the Purchased Assets, or (c) the ability of Seller to consummate the transactions contemplated
hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence,
fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions;
(ii) conditions generally affecting the industries in which the Business operates; (iii) any changes in financial or securities
markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof;
(v) any action required or permitted by this Agreement, except pursuant to Section 4.3 and Section 6.8; (vi) any changes
in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion of the transactions
contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in
clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has
occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate
effect on the Business compared to other participants in the industries in which the Business operates.


 






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“Material Contracts”
has the meaning set forth in Section 4.7(a).


 


“Material Customers”
has the meaning set forth in Section 4.14(a).


 


“Material Suppliers”
has the meaning set forth in Section 4.14(b).


 


“Multiemployer Plan”
has the meaning set forth in Section 4.19(c).


 


“Off-the-Shelf Software”
means software, other than open source software, obtained from a third party (a) on general commercial terms and that continues to be
widely available on such commercial terms, (b) that is not distributed with or incorporated in any product or services of the Seller,
and (c) that is used for business infrastructure or other internal purposes.


 


“Owned Real Property”
has the meaning set forth in Section 4.10(a).


 


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


 


“Permitted Encumbrances”
has the meaning set forth in Section 4.8(a).


 


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


 


“Platform Agreements”
has the meaning set forth in Section 4.11(h).


 


“Post-Closing Adjustment”
has the meaning set forth in Section 2.6(a)(ii).


 


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


 


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


 


“Product Liability”
means, with respect to any product manufactured, marketed, distributed or sold by the Seller prior to or following the Closing (the “Seller
Product”), all Liabilities resulting from actual or alleged harm, injury, damage or death to Persons, property or business,
irrespective of the legal theory asserted.


 






    -8-


     


    

 


“Purchase Price”
has the meaning set forth in Section 2.5.


 


“Purchase Price Adjustment
Escrow Amount” means $500,000.


 


“Purchase Price Adjustment
Escrow Fund” has the meaning set forth in Section 3.2(c)(i).


 


“Purchased Assets”
has the meaning set forth in Section 2.1.


 


“Qualified Benefit
Plan” has the meaning set forth in Section 4.19(c).


 


“Real Property”
means, collectively, the Owned Real Property and the Leased Real Property.


 


“Registration Rights
Agreement” means the registration rights agreement, to be dated as of Closing Date and substantially in the form attached hereto
as Exhibit E, among Tattooed Chef, Inc., a Delaware corporation (“Tattooed Chef”) and the Seller, pursuant to
which Tattooed Chef will agree to file one or more registration statements with the Securities and Exchange Commission providing for the
registration under the Securities Act (as defined below) of the TTCF Shares.


 


“Release”
means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient
air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or
fixture).


 


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


 


“Resolution Period”
has the meaning set forth in Section 2.6(b)(ii).


 


“Restricted Business”
means the manufacture and sale of nutrition bars and snacks.


 


“Restricted Period”
has the meaning set forth in Section 6.7(a).


 


“Review Period”
has the meaning set forth in Section 2.6(b)(i).


 


“Seller”
has the meaning set forth in the preamble.


 


“Seller Closing Certificate”
has the meaning set forth in Section 7.2(i).


 


“Seller Indemnitees”
has the meaning set forth in Section 8.3.


 


“Seller’s Accountants”
means GKG & Associates.


 


“Single Employer
Plan” has the meaning set forth in Section 4.19(c).


 






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“Statement of Objections”
has the meaning set forth in Section 2.6(b)(ii).


 


“Stock Subscription
Agreement” means that certain subscription agreement, to be dated as of the Closing Date, between Seller and TTCF, pursuant
to which TTCF agrees to issue the Purchased Stock to Seller.


 


“Tangible Personal
Property” has the meaning set forth in Section 2.1(e).


 


“Target Working Capital”
means $3,340,000.


 


“Taxes”
means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary,
franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise,
severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties
or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties.


 


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


 


“Territory”
means the United States and Israel.


 


“Third Party Claim”
has the meaning set forth in Section 8.5(a).


 


“TTCF Shares”
means publicly traded common stock, par value $0.001 per share, of Tattooed Chef.


 


“TTCF Stock”
means the unregistered common stock, par value $0.001 per share, of Tattooed Chef.


 


“Undisputed Amounts”
has the meaning set forth in Section 2.6(b)(iii).


 


“Union”
has the meaning set forth in Section 4.20(b).


 


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


 









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ARTICLE
II

Purchase and Sale


 


2.1 Purchase
and Sale of Assets. Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell, assign, transfer, convey
and deliver to Buyer, and Buyer shall purchase from Seller, free and clear of any Encumbrances other than Permitted Encumbrances, all
of Seller’s right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether
real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired
(other than the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively, the “Purchased
Assets”), including, without limitation, the following:


 


(a) all
accounts or notes receivable held by Seller, and any security, claim, remedy or other right related to any of the foregoing (“Accounts
Receivable”);


 


(b) all
inventory, finished goods, raw materials, work-in-process, packaging, supplies, parts and other inventories (“Inventory”);


 


(c) all
Contracts, including Intellectual Property Agreements, set forth on Section 2.1(c) of the Disclosure Schedules (the “Assigned
Contracts”) except Buyer acknowledges that Seller shall not be required to list on Section 2.1(c) of the Disclosure Schedules
or any other schedule to this Agreement: (i) contracts which involve a total liability of Seller not exceeding $10,000 in any consecutive
twelve (12) month period; and (ii) purchase orders and sales orders issued and accepted in the ordinary course of business, but each such
contract and commitment nevertheless shall constitute an Assigned Contract for purposes of this Agreement;


 


(d) all
Intellectual Property Assets;


 


(e) all
furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal
property (the “Tangible Personal Property”);


 


(f) all
Leased Real Property;


 


(g) all
Permits, including Environmental Permits, which are held by Seller and required for the conduct of the Business as currently conducted
or for the ownership and use of the Purchased Assets, including, without limitation, those listed on Section 4.17(b) and Section 4.18(b)
of the Disclosure Schedules;


 


(h) all
rights to any Actions of any nature available to or being pursued by Seller to the extent related to the Business, the Purchased Assets
or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;


 


(i) all
prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits,
charges, sums and fees (including any such item relating to the payment of Taxes);


 


(j) all
of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased
Assets;


 


(k) all
insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities;


 


(l) originals,
or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial
and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution
lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development
files, records and data (including all correspondence with any Governmental Authority), sales material and records (including pricing
history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements,
marketing and promotional surveys, material and research and files relating to the Intellectual Property Assets and the Intellectual Property
Agreements (“Books and Records”); and


 






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(m) all
goodwill and the going concern value of the Business.


 


2.2 Excluded
Assets. Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively, the “Excluded
Assets”):


 


(a) cash
and cash equivalents;


 


(b) Contracts,
including Intellectual Property Agreements, that are not Assigned Contracts (the “Excluded Contracts”);


 


(c) the
corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with
the corporate organization of Seller;


 


(d) all
Benefit Plans and assets attributable thereto;


 


(e) the
assets, properties and rights specifically set forth on Section 2.2(e) of the Disclosure Schedules;


 


(f) the
rights which accrue or will accrue to Seller under this Agreement and the Ancillary Documents; and


 


(g) that
certain co-manufacturing agreement between the Seller and One Brands, LLC dated November 20, 2020.


 


2.3 Assumed
Liabilities. Subject to the terms and conditions set forth herein, Buyer shall assume and agree to pay, perform and discharge only
the following Liabilities of Seller (collectively, the “Assumed Liabilities”), and no other Liabilities:


 


(a) all
trade accounts payable of Seller to third parties in connection with the Business that remain unpaid and are not delinquent as of the
Closing Date and that either are reflected on the Interim Balance Sheet Date or arose in the ordinary course of business consistent with
past practice since the Interim Balance Sheet Date;


 


(b) all
Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder are required to be performed
after the Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper performance,
warranty or other breach, default or violation by Seller on or prior to the Closing; and


 






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(c) those Liabilities of Seller set forth on
Section 2.3(c) of the Disclosure Schedules;


 


2.4 Excluded
Liabilities. Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall
not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or
nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). Seller shall, and shall cause each
of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting
the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:


 


(a) any
Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement,
the Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel,
accountants, consultants, advisers and others;


 


(b) any
Liability for (i) Taxes of Seller (or any stockholder or Affiliate of Seller) or relating to the Business, the Purchased Assets or
the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated
hereby or that are the responsibility of Seller pursuant to Section 6.14; or (iii) other Taxes of Seller (or any stockholder
or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller)
that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by
operation of contract or Law);


 


(c) any
Liabilities relating to or arising out of the Excluded Assets;


 


(d) any
Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the
Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;


 


(e) any
product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation,
warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design
or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured
or sold or any service performed by Seller prior to Closing;


 


(f) any
recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to Closing;


 


(g) any
Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;


 


(h) any
Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller,
including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’
compensation, severance, retention, termination or other payments;


 






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(i) any
Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions
existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;


 


(j) any
trade accounts payable of Seller (i) to the extent not accounted for on the Interim Balance Sheet and is not included in the working
capital adjustment; (ii) which constitute intercompany payables owing to Affiliates of Seller; (iii) which constitute debt,
loans or credit facilities to financial institutions; or (iv) which did not arise in the ordinary course of business;


 


(k) any
Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders
that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing;
(ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to
this Agreement;


 


(l) any
Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including
with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.3 as Seller
Indemnitees;


 


(m) any
Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly
and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with
respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller
of such Contracts prior to Closing;


 


(n) any
Liabilities associated with debt, loans or credit facilities of Seller and/or the Business owing to financial institutions; and


 


(o) any
Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law
or Governmental Order.


 


2.5 Purchase
Price. The aggregate purchase price for the Purchased Assets shall be Eighteen Million Dollars, subject to adjustment pursuant to
Section 2.6 hereof (the “Purchase Price”), plus the assumption of the Assumed Liabilities. Four Million Dollars
of the Purchase Price shall be paid in the form of TTCF Stock (the “Purchased Stock”). The number of shares of TTCF
Stock payable at Closing shall be determined in accordance with Section 2.10. The remainder of the Purchase Price shall be paid in
cash (the “Cash Purchase Price”). The Purchase Price shall be paid as provided in Section 3.2.


 


2.6 Purchase
Price Adjustment.


 


(a) Post-Closing
Adjustment.


 


(i) Within
sixty (60) days after the Closing Date, Buyer shall prepare and deliver to Seller (A) a statement setting forth its calculation
of Closing Working Capital, which statement shall be substantially in the form of Section 2.6(a)(i) of the Disclosure Schedules (the
“Closing Working Capital Statement”), and (B) a certificate of the Chief Financial Officer of Buyer that the Closing
Working Capital Statement was prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies
and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation
of the Audited Financial Statements for the most recent fiscal year end, subject to the modifications and limitations set forth on Section 2.6(a)(i)
of the Disclosure Schedules.


 






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(ii) The
“Post-Closing Adjustment” shall be an amount equal to the Closing Working Capital minus the Target Working Capital,
subject to the limitations set forth below. If the Post-Closing Adjustment is a positive number, Buyer shall pay to Seller an amount equal
to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Seller shall pay to Buyer an amount equal to the
Post-Closing Adjustment. Notwithstanding the foregoing, if the Closing Working Capital (as finally determined in accordance with Section
2.6(b)) is between $3,000,000 and $3,600,000 (“Target Range”) there shall be no Post-Closing Adjustment. In the event
that the finally determined Closing Working Capital is outside the Target Range, the Post Closing Adjustment shall be limited to the amount
by which the finally determined Closing Working Capital exceeds or is less than the Target Range, as the case may be.


 


(b) Examination
and Review.


 


(i) Examination.
After receipt of the Closing Working Capital Statement, Seller shall have thirty (30) days (the “Review Period”)
to review the Closing Working Capital Statement. During the Review Period, Seller and Seller’s Accountants shall have full access
to the relevant books and records of Buyer, the personnel of, and work papers prepared by, Buyer and/or Buyer’s Accountants to the
extent that they relate to the Closing Working Capital Statement and to such historical financial information (to the extent in Buyer’s
possession) relating to the Closing Working Capital Statement as Seller may reasonably request for the purpose of reviewing the Closing
Working Capital Statement and to prepare a Statement of Objections (defined below), provided, that such access shall be in a manner
that does not interfere with the normal business operations of Buyer.


 


(ii) Objection.
On or prior to the last day of the Review Period, Seller may object to the Closing Working Capital Statement by delivering to Buyer a
written statement setting forth Seller’s objections in reasonable detail, indicating each disputed item or amount and the basis
for Seller’s disagreement therewith (the “Statement of Objections”). If Seller fails to deliver the Statement
of Objections before the expiration of the Review Period, the Closing Working Capital Statement and the Post-Closing Adjustment, as the
case may be, reflected in the Closing Working Capital Statement shall be deemed to have been accepted by Seller. If Seller delivers the
Statement of Objections before the expiration of the Review Period, Buyer and Seller shall negotiate in good faith to resolve such objections
within thirty (30) days after the delivery of the Statement of Objections (the “Resolution Period”), and, if the
same are so resolved within the Resolution Period, the Post-Closing Adjustment and the Closing Working Capital Statement with such changes
as may have been previously agreed in writing by Buyer and Seller, shall be final and binding.


 






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(iii) Resolution
of Disputes. If Seller and Buyer fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections
before expiration of the Resolution Period, then any amounts remaining in dispute (“Disputed Amounts” and any amounts
not so disputed, the “Undisputed Amounts”) shall be submitted for resolution to the office of Armanino LLP or, if Armanino
LLP is unable to serve, Buyer and Seller shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent
certified public accountants other than Seller’s Accountants or Buyer’s Accountants (the “Independent Accountant”)
who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only and make any adjustments to the Post-Closing Adjustment,
as the case may be, and the Closing Working Capital Statement. The parties hereto agree that all adjustments shall be made without regard
to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties and their decision for each
Disputed Amount must be within the range of values assigned to each such item in the Closing Working Capital Statement and the Statement
of Objections, respectively.


 


(iv) Fees
of the Independent Accountant. The fees and expenses of the Independent Accountant shall be paid by Seller, on the one hand, and Buyer,
on the other hand, based upon the percentage that the amount actually contested but not awarded to Seller or Buyer, respectively, bears
to the aggregate amount actually contested by Seller and Buyer.


 


(v) Determination
by Independent Accountant. The Independent Accountant shall make a determination as soon as practicable within thirty (30) days (or
such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the Disputed Amounts and
their adjustments to the Closing Working Capital Statement and/or the Post-Closing Adjustment shall be conclusive and binding upon the
parties hereto.


 


(c) Payments
of Post-Closing Adjustment. Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated
as set forth below, shall (A) be due (x) within five (5) Business Days of acceptance of the applicable Closing Working
Capital Statement or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause
(v) above; and (B) be paid by wire transfer of immediately available funds to such account as is directed by Buyer or Seller,
as the case may be. Any payment of the Post-Closing Adjustment owed by Seller to Buyer shall be paid by the Escrow Agent pursuant to the
terms of the Escrow Agreement: (X) from the Purchase Price Adjustment Escrow Fund, and (Y) to the extent the amount of the Post-Closing
Adjustment exceeds the amount available in the Purchase Price Adjustment Escrow Fund, from the Indemnification Escrow Fund. The amount
of any Post-Closing Adjustment shall bear interest from and including the Closing Date to and including the date of payment at a rate
per annum equal to two percent (2%). Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days
elapsed. The Purchase Price Adjustment Escrow Fund shall terminate within six (6) months of the Closing Date pursuant to joint escrow
instructions signed by both Parties; provided that there are no Disputed Amounts. In the event that there are Disputed Amounts, the Purchase
Price Adjustment Escrow Fund termination shall be extended until there is a final resolution of the Disputed Amounts. The foregoing notwithstanding,
the Parties may agree to release the Undisputed Amounts.


 


(d) Adjustments
for Tax Purposes. Any payments made pursuant to Section 2.6 shall be treated as an adjustment to the Purchase Price by the parties
for Tax purposes, unless otherwise required by Law.


 






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2.7 Allocation
of Purchase Price. Seller and Buyer agree that the Purchase Price and the Assumed Liabilities (plus other relevant items) shall be
allocated among the Purchased Assets for all purposes (including Tax and financial accounting) as shown on the allocation schedule (the
“Allocation Schedule”) A draft of the Allocation Schedule shall be prepared by Buyer and delivered to Seller within
thirty (30) days following the Closing Date. If Seller notifies Buyer in writing that Seller objects to one or more items reflected in
the Allocation Schedule, Seller and Buyer shall negotiate in good faith to resolve such dispute; provided, however, that if Seller and
Buyer are unable to resolve any dispute with respect to the Allocation Schedule within thirty (30) days following the Closing Date, such
dispute shall be resolved by the Independent Accountant. The fees and expenses of such accounting firm shall be borne equally by Seller
and Buyer. Buyer and Seller shall file all Tax Returns (including amended returns and claims for refund) and information reports in a
manner consistent with the Allocation Schedule. Any adjustments to the Purchase Price pursuant to Section 2.6 herein shall be allocated
in a manner consistent with the Allocation Schedule.


 


2.8 Withholding
Tax. Buyer shall be entitled to deduct and withhold from the Purchase Price all Taxes that Buyer may be required to deduct and withhold
under any provision of Tax Law. All such withheld amounts shall be treated as delivered to Seller hereunder.


 


2.9 Third
Party Consents. To the extent that Seller’s rights under any Contract or Permit constituting a Purchased Asset, or any other
Purchased Asset, may not be assigned to Buyer without the consent of another Person which has not been obtained, this Agreement shall
not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Seller,
at its expense, shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent
shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset
in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and
the Purchased Asset, shall act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate,
to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such
benefits to Buyer. Notwithstanding any provision in this Section 2.9 to the contrary, Buyer shall not be deemed to have waived its
rights under Section 7.2(d) hereof unless and until Buyer either provides written waivers thereof or elects to proceed to consummate
the transactions contemplated by this Agreement at Closing without such consents or assignments being obtained.


 


2.10 Valuation
of TTCF Shares. For determining the number of shares of TTCF Stock payable at Closing, the net asset value per share of TTCF Stock
shall equal the average closing price of TTCF Shares over the three (3) days preceding the Closing Date.


 


ARTICLE
III

Closing


 


3.1 Closing.
Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”)
shall take place remotely by exchange of documents and signatures (or their electronic counterparts) on the second (2nd) Business
Day after all of the conditions to Closing set forth in ARTICLE VII are either satisfied or waived (other than conditions which, by their
nature, are to be satisfied on the Closing Date), or at such other time, date or place as Seller and Buyer may mutually agree upon in
writing. The date on which the Closing is to occur is herein referred to as the “Closing Date”.


 






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3.2 Closing
Deliverables.


 


(a) At
the Closing, Seller shall deliver to Buyer the following:


 


(i) the
Escrow Agreement duly executed by Seller;


 


(ii) a
bill of sale in the form of Exhibit B hereto/in form and substance satisfactory to Buyer (the “Bill of Sale”)
and duly executed by Seller, transferring the tangible personal property included in the Purchased Assets to Buyer;


 


(iii) an
assignment and assumption agreement in the form of Exhibit C hereto/in form and substance satisfactory to Buyer (the “Assignment
and Assumption Agreement”) and duly executed by Seller, effecting the assignment to and assumption by Buyer of the Purchased
Assets and the Assumed Liabilities;


 


(iv) assignments
in the form of Exhibit D hereto/in form and substance satisfactory to Buyer (the “Intellectual Property Assignments”)
and duly executed by Seller, transferring all of Seller’s right, title and interest in and to the Intellectual Property Assets to
Buyer;


 


(v) with
respect to each Lease, an Assignment and Assumption of Lease in form and substance satisfactory to Buyer (each, an “Assignment and
Assumption of Lease”) and duly executed by Seller;


 


(vi) a
power of attorney in form and substance satisfactory to Buyer and duly executed by Seller;


 


(vii) the
Stock Subscription Agreement duly executed by Seller;


 


(viii) the
Registration Rights Agreement duly executed by Seller;


 


(ix) the
Seller Closing Certificate;


 


(x) the
FIRPTA Certificate;


 


(xi) the
certificates of the Secretary or Assistant Secretary of Seller required by Section 7.2(j) and Section 7.2(k);


 


(xii) such
other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as
may be required to give effect to this Agreement; and


 


(xiii) Invention
assignment agreements in a form acceptable to Buyer executed by those persons set forth on Schedule 3.2(a)(xiii).


 






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(b) At
the Closing, Buyer shall deliver to Seller the following:


 


(i) the
Cash Purchase Price less the Purchase Price Adjustment Escrow Amount and the Indemnification Escrow Amount by wire transfer of immediately
available funds to an account designated in writing by Seller to Buyer;


 


(ii) The
Purchased Stock;


 


(iii) the
Escrow Agreement duly executed by Buyer;


 


(iv) the
Assignment and Assumption Agreement duly executed by Buyer;


 


(v) with
respect to each Lease, an Assignment and Assumption of Lease duly executed by Buyer;


 


(vi) the
Stock Subscription Agreement duly executed by Buyer;


 


(vii) the
Registration Rights Agreement duly executed by Buyer;


 


(viii) the
Buyer Closing Certificate;


 


(ix) the
certificates of the Secretary or Assistant Secretary of Buyer required by Section 7.3(h) and Section 7.3(i).


 


(c) At
the Closing, Buyer shall deliver to the Escrow Agent:


 


(i) the
Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements
therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) by wire transfer of
immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Seller
in Section 2.6(c);


 


(ii) the
Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom
in accordance with the Escrow Agreement, the “Indemnification Escrow Fund”) by wire transfer of immediately available
funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the indemnification obligations of Seller set
forth in ARTICLE VIII and the obligations of Seller in Section 2.6(c); and


 


(iii) the
Escrow Agreement.


 


ARTICLE
IV

Representations and warranties of seller


 


Except as set forth on the
disclosure schedules delivered by the Sellers to Buyer in accordance with the terms and conditions of this Agreement (it being agreed
that any matter disclosed pursuant to any of the disclosure schedules shall be deemed disclosed for purposes of this Article IV to the
extent the applicability of the disclosure to such section set forth in this Article IV is reasonably apparent on the face of such
disclosure), Seller represents and warrants to Buyer that the statements contained in this ARTICLE IV re true and correct as of the date
hereof.


 






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4.1 Organization
and Qualification of Seller. Seller is a corporation duly organized, validly existing and in good standing under the Laws of the State
of Delaware and has full corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased
by it and to carry on the Business as currently conducted. Section 4.1 of the Disclosure Schedules sets forth each jurisdiction in
which Seller is licensed or qualified to do business, and Seller is duly licensed or qualified to do business and is in good standing
in each jurisdiction in which the ownership of the Purchased Assets or the operation of the Business as currently conducted makes such
licensing or qualification necessary and Seller’s failure to do so would cause a Material Adverse Effect.


 


4.2 Authority
of Seller. Seller has full corporate power and authority to enter into this Agreement and the Ancillary Documents to which Seller
is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery by Seller of this Agreement and any Ancillary Document to which Seller is a party, the performance by Seller
of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby have been
duly authorized by all requisite corporate action on the part of Seller. This Agreement has been duly executed and delivered by Seller,
and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of
Seller enforceable against Seller in accordance with its terms. When each Ancillary Document to which Seller is or will be a party has
been duly executed and delivered by Seller (assuming due authorization, execution and delivery by each other party thereto), such Ancillary
Document will constitute a legal and binding obligation of Seller enforceable against it in accordance with its terms.


 


4.3 No
Conflicts; Consents. The execution, delivery and performance by Seller of this Agreement and the Ancillary Documents to which it is
a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result
in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents
of Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Seller,
the Business or the Purchased Assets; (c) except as set forth in Section 4.3 of the Disclosure Schedules, require the consent,
notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that,
with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party
the right to accelerate, terminate, modify or cancel any Contract or Permit to which Seller is a party or by which Seller or the Business
is bound or to which any of the Purchased Assets are subject (including any Assigned Contract); or (d) result in the creation or
imposition of any Encumbrance other than Permitted Encumbrances on the Purchased Assets. No consent, approval, Permit, Governmental Order,
declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Seller in connection with the execution
and delivery of this Agreement or any of the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby.


 






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4.4 Financial
Statements. Complete copies of the audited financial statements consisting of the balance sheet of the Business as at December 31
in each of the years 2018, 2019, 2020 and the related statements of income and retained earnings for the years then ended (the “Audited
Financial Statements”), and unaudited financial statements consisting of the balance sheet of the Business as at July 31, 2021
and the related statement of income and retained earnings for the seven (7) month period then ended (the “Interim Financial
Statements” and together with the Audited Financial Statements, the “Financial Statements”) are included
in the Disclosure Schedules. The Financial Statements are in compliance with generally accepted auditing standards and have been prepared
in accordance with GAAP applied on a consistent basis throughout the period involved, subject, in the case of the Interim Financial Statements,
to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes (that, if presented,
would not differ materially from those presented in the Audited Financial Statements). The Financial Statements are based on the books
and records of the Business, and fairly present the financial condition of the Business as of the respective dates they were prepared
and the results of the operations of the Business for the periods indicated in all material respects. The balance sheet of the Business
as of December 31, 2020 is referred to herein as the “Balance Sheet” and the date thereof as the “Balance
Sheet Date” and the balance sheet of the Business as of July 31, 2021 is referred to herein as the “Interim Balance
Sheet” and the date thereof as the “Interim Balance Sheet Date”. Seller maintains a standard system of accounting
for the Business established and administered in accordance with GAAP.


 


4.5 Undisclosed
Liabilities. Seller has no Liabilities with respect to the Business, except (a) those which are adequately reflected or reserved
against in the Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary course of business consistent
with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.


 


4.6 Absence
of Certain Changes, Events and Conditions. Except as disclosed on Section 4.6 of the Disclosure Schedules, since the Balance
Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:


 


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


 


(b) declaration
or payment of any dividends or distributions on or in respect of any of Seller’s capital stock or redemption, purchase or acquisition
of Seller’s capital stock;


 


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


 


(d) material
change in cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment
of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment
of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;


 


(e) entry
into any Contract that would constitute a Material Contract;


 






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(f) incurrence,
assumption or guarantee of any indebtedness for borrowed money in connection with the Business except unsecured current obligations and
Liabilities incurred in the ordinary course of business consistent with past practice;


 


(g) transfer,
assignment, sale or other disposition of any of the Purchased Assets shown or reflected in the Balance Sheet, except for the sale of Inventory
in the ordinary course of business;


 


(h) cancellation
of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets;


 


(i) transfer
or assignment of or grant of any license or sublicense under or with respect to any Intellectual Property Assets or Intellectual Property
Agreements (except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice;


 


(j) abandonment
or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable
measures to protect the confidentiality or value of any Trade Secrets included in the Intellectual Property Assets;


 


(k) material
damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;


 


(l) acceleration,
termination, material modification to or cancellation of any Assigned Contract or Permit;


 


(m) material
capital expenditures which would constitute an Assumed Liability;


 


(n) imposition
of any Encumbrance upon any of the Purchased Assets;


 


(o) (i) grant
of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits
in respect of any current or former employees, officers, directors, independent contractors or consultants of the Business, other than
as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee
of the Business or any termination of any employees for which the aggregate costs and expenses exceed twenty five thousand dollars ($25,000),
or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer,
director, consultant or independent contractor of the Business;


 


(p) hired,
engaged, terminated (without cause), furloughed or temporarily laid off any employee or individual service provider, in each case, whose
aggregate annual compensation was or is in excess of $75,000;


 


(q) adoption,
modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee,
officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or
other agreement with a Union, in each case whether written or oral;


 






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(r) any
loan to (or forgiveness of any loan to), or entry into any other transaction with, any current or former directors, officers or employees
of the Business;


 


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


 


(t) purchase,
lease or other acquisition of the right to own, use or lease any property or assets in connection with the Business for an amount in excess
of $25,000.00, individually (in the case of a lease, per annum) or $50,000.00 in the aggregate (in the case of a lease, for the entire
term of the lease, not including any option term), except for purchases of Inventory or supplies in the ordinary course of business consistent
with past practice;


 


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


 


4.7 Material
Contracts.


 


(a) Section 4.7(a)
of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected
or (y) to which Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts,
together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage
contracts) listed or otherwise disclosed in Section 4.10(a) of the Disclosure Schedules and all Intellectual Property Agreements
set forth in Section 4.11(b) of the Disclosure Schedules, being “Material Contracts”):


 


(i) all
Contracts involving aggregate consideration in excess of fifty thousand dollars ($50,000) and which, in each case, cannot be cancelled
without penalty or without more than ninety (90) days’ notice;


 


(ii) all
Contracts that require Seller to purchase or sell a stated portion of the requirements or outputs of the Business or that contain “take
or pay” provisions;


 


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


 


(iv) all
Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any
real property (whether by merger, sale of stock, sale of assets or otherwise);


 


(v) all
broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting
and advertising Contracts;


 


(vi) all
employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable
without material penalty or without more than ninety (90) days’ notice;


 






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(vii) except
for Contracts relating to trade payables, all Contracts relating to indebtedness (including, without limitation, guarantees);


 


(viii) all
Contracts with any Governmental Authority (“Government Contracts”);


 


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


 


(x) all
joint venture, partnership or similar Contracts;


 


(xi) all
Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential
or similar right to purchase any of the Purchased Assets;


 


(xii) all
powers of attorney with respect to the Business or any Purchased Asset;


 


(xiii) all
collective bargaining agreements or Contracts with any Union; and


 


(xiv) all
other Contracts that are material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this
Section 4.7.


 


(b)Each Material Contract
is valid and binding on Seller in accordance with its terms and is in full force and effect. None of Seller or, to Seller’s Knowledge,
any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect,
or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that,
with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof
or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder other than
those Material Contracts listed on Section 4.7(b) of the Disclosure Schedules. Complete and correct copies of each Material Contract
(including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer. There are
no material disputes pending or, to Seller’s Knowledge, threatened under any Contract included in the Purchased Assets.


 


4.8 Title
to Purchased Assets. Seller has good and valid title to, or a valid leasehold interest in, all of the Purchased Assets. All such Purchased
Assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted
Encumbrances”):


 


(a) those
items set forth in Section 4.8 of the Disclosure Schedules;


 


(b) liens
for Taxes not yet due and payable;


 






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(c) mechanics’,
carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent
with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business or
the Purchased Assets;


 


(d) easements,
rights of way, zoning ordinances and other similar encumbrances affecting Real Property which are not, individually or in the aggregate,
material to the Business or the Purchased Assets, which do not prohibit or interfere with the current operation of any Real Property and
which do not render title to any Real Property unmarketable; or


 


(e) other
than with respect to Owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases
with third parties entered into in the ordinary course of business consistent with past practice which are not, individually or in the
aggregate, material to the Business or the Purchased Assets.


 


4.9 Condition
and Sufficiency of Assets. Except as set forth in Section 4.9 of the Disclosure Schedules, the buildings, plants, structures, furniture,
fixtures, machinery, equipment, vehicles and other items of tangible personal property included in the Purchased Assets are structurally
sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and except as set forth
in Section 4.9 of the Disclosure Schedules, none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles
and other items of tangible personal property included in the Purchased Assets is in need of maintenance or repairs except for ordinary,
routine maintenance and repairs that are not material in nature or cost. The Purchased Assets are materially sufficient for the continued
conduct of the Business at the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights,
property and assets materially necessary to conduct the Business as currently conducted. None of the Excluded Assets are material to the
Business or necessary for the continued operation of the Business.


 


4.10 Real
Property.


 


(a) Except
as set for on Section 4.10(a) of the Disclosure Schedules there is no real property owned by Seller and used in or necessary for
the conduct of the Business as currently conducted (together with all buildings, fixtures, structures and improvements situated thereon
and all easements, rights-of-way and other rights and privileges appurtenant thereto, collectively, the “Owned Real Property”).


 


(b) Section 4.10(b)
of the Disclosure Schedules sets forth each parcel of real property leased by Seller and used in or necessary for the conduct of the Business
as currently conducted (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including,
but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real
Property”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written
or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Seller
holds any Leased Real Property (collectively, the “Leases”). Seller has delivered to Buyer a true and complete copy
of each Lease. With respect to each Lease:


 


(i) such
Lease is valid, binding, enforceable and in full force and effect, and Seller enjoys peaceful and undisturbed possession of the Leased
Real Property;


 






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(ii) Seller
is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage
of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;


 


(iii) Seller
has not received nor given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by
Seller under any of the Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to any Lease has exercised
any termination rights with respect thereto;


 


(iv) Seller
has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof;
and


 


(v) Seller
has not pledged, mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.


 


(c) Seller
has not received any written notice of (i) violations of building codes and/or zoning ordinances or other governmental or regulatory
Laws affecting the Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Real Property, or (iii) existing,
pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to
adversely affect the ability to operate the Real Property as currently operated. Neither the whole nor any material portion of any Real
Property has been damaged or destroyed by fire or other casualty.


 


(d) The
Real Property is sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted
prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.


 


4.11 Intellectual
Property.


 


(a) Section 4.11(a)
of the Disclosure Schedules contains a correct, current and complete list of: (i) all Intellectual Property Registrations, specifying
as to each, as applicable: the title, mark, or design; the jurisdiction by or in which it has been issued, registered or filed; the patent,
registration or application serial number; the issue, registration or filing date; and the current status; and (ii) all unregistered
Trademarks included in the Intellectual Property Assets; and (iii) all proprietary Software included in the Intellectual Property
Assets; and (iv) all other Intellectual Property Assets, other than Off-the-Shelf Software, that are used or held for use in the
conduct of the Business as currently conducted or proposed to be conducted.


 






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(b) Section 4.11(b)
of the Disclosure Schedules contains a correct, current and complete list of all Intellectual Property Agreements, other than those related
to Off-the-Shelf Software, specifying for each the date, title, and parties thereto, and separately identifying the Intellectual Property
Agreements: (i) under which Seller is a licensor or otherwise grants to any Person any right or interest relating to any Intellectual
Property Asset; (ii) under which Seller is a licensee or otherwise granted any right or interest relating to the Intellectual Property
of any Person; or (iii) which otherwise relate to the Seller’s ownership or use of any Intellectual Property in the conduct
of the Business as currently conducted or proposed to be conducted, in each case identifying the Intellectual Property covered by such
Intellectual Property Agreement. Seller has provided Buyer with true and complete copies (or in the case of any oral agreements, a complete
and correct written description) of all such Intellectual Property Agreements, including all modifications, amendments and supplements
thereto and waivers thereunder. Each Intellectual Property Agreement is valid and binding on Seller in accordance with its terms and is
in full force and effect. Neither Seller nor any other party thereto is, or is alleged to be, in material breach of or default under,
or has provided or received any notice of breach of, default under, or intention to terminate (including by non-renewal), any Intellectual
Property Agreement.


 


(c) Except
as set forth in Section 4.11(c) of the Disclosure Schedules, Seller is the sole and exclusive legal and beneficial, and with respect
to the Intellectual Property Registrations, record, owner of all right, title and interest in and to the Intellectual Property Assets,
and has the valid and enforceable right to use all other Intellectual Property used, held for use in, or necessary for the conduct of
the Business as currently conducted or as proposed to be conducted, in each case, free and clear of Encumbrances other than Permitted
Encumbrances and those associated with Licensed Intellectual Property. The Intellectual Property Assets and Licensed Intellectual Property
are all of the Intellectual Property necessary to operate the Business as presently conducted. Except as set forth in Section 4.11(c)
of the Disclosure Schedules, Seller has entered into binding, valid and enforceable written Contracts with each current and former employee
and independent contractor who is or was involved in or has contributed to the invention, creation, or development of any Intellectual
Property during the course of employment or engagement with Seller whereby such employee or independent contractor (i) acknowledges Seller’s
exclusive ownership of all Intellectual Property Assets invented, created or developed by such employee or independent contractor within
the scope of his or her employment or engagement with Seller; (ii) grants to Seller a present, irrevocable assignment of any ownership
interest such employee or independent contractor may have in or to such Intellectual Property, to the extent such Intellectual Property
does not constitute a “work made for hire” under Applicable Law; and (iii) irrevocably waives any right or interest, including
any moral rights, regarding such Intellectual Property, to the extent permitted by applicable Law. Seller has provided Buyer with true
and complete copies of all such Contracts. All assignments and other instruments necessary to establish, record, and perfect Seller’s
ownership interest in the Intellectual Property Registrations have been validly executed, delivered, and filed with the relevant Governmental
Authorities and authorized registrars.


 


(d) Except
as set forth in Section 4.11(c) of the Disclosure Schedules, neither the execution, delivery, or performance of this Agreement, nor
the consummation of the transactions contemplated hereunder, will result in the loss or impairment of or payment of any additional amounts
with respect to, or require the consent of any other Person in respect of, the Buyer’s right to own or use any Intellectual Property
Assets or Licensed Intellectual Property in the conduct of the Business as currently conducted and as proposed to be conducted. At the
time of the transfer of the Purchased Assets, all Intellectual Property Assets will be owned or available for use by Buyer on substantially
the same terms as they were owned or available for use by Seller immediately prior to the Closing.


 






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(e) All
of the Intellectual Property Assets and Licensed Intellectual Property are valid and enforceable, and all Intellectual Property Registrations
are subsisting and in full force and effect. Seller has taken all reasonably necessary steps to maintain and enforce the Intellectual
Property Assets and Licensed Intellectual Property and to preserve the confidentiality of all Trade Secrets included in the Intellectual
Property Assets. All required filings and fees related to the Intellectual Property Registrations have been timely submitted with and
paid to the relevant Governmental Authorities and authorized registrars. Seller has provided Buyer with true and complete copies of all
file histories, documents, certificates, office actions, correspondence, assignments, and other instruments relating to the Intellectual
Property Registrations.


 


(f) The
conduct of the Business as currently and formerly conducted, including the use of the Intellectual Property Assets and Licensed Intellectual
Property in connection therewith, and the products, processes, and services of the Business have not infringed, misappropriated, or otherwise
violated and will not infringe, misappropriate, or otherwise violate the Intellectual Property or other rights of any Person. To Seller’s
Knowledge, no Person has infringed, misappropriated, or otherwise violated any Intellectual Property Assets or Licensed Intellectual Property.


 


(g) There
are no Actions (including any opposition, cancellation, revocation, review, or other proceeding), whether settled, pending or, to Seller’s
Knowledge, threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, or
other violation of the Intellectual Property of any Person by Seller in the conduct of the Business; (ii) challenging the validity,
enforceability, registrability, patentability, or ownership of any Intellectual Property Assets or Seller’s right to use the Licensed
Intellectual Property; or (iii) by Seller or any other Person alleging any infringement, misappropriation, or other violation by
any Person of any Intellectual Property Assets. Seller is not aware of any facts or circumstances that would reasonably be expected to
give rise to any such Action. Seller is not subject to any outstanding or prospective Governmental Order (including any motion or petition
therefor) that does or could reasonably be expected to restrict or impair the use of any Intellectual Property Assets or Licensed Intellectual
Property.


 


(h) Section 4.11(h)
of the Seller Disclosure Schedules contains a correct, current, and complete list of all social media accounts used by Seller in the conduct
of the Business. Seller has complied with all terms of use, terms of service, and other Contracts and all associated policies and guidelines
relating to its use of any social media platforms, sites, or services in the conduct of the Business (collectively, “Platform
Agreements”). There are no Actions settled, pending, or threatened alleging (A) any breach or other violation of any Platform
Agreement by Seller; or (B) defamation, any violation of publicity rights of any Person, or any other violation by Seller in connection
with its use of social media in the conduct of the Business.


 


(i) All
Business IT Systems are in operating condition and are sufficient for the operation of the Business as currently conducted. In the past
three (3) years, there has been no malfunction, failure, continued substandard performance, denial-of-service, or other cyber incident,
including any cyberattack, or other impairment of the Business IT Systems that has resulted or is reasonably likely to result in material
disruption or damage to the Business and that has not been remedied. Seller has taken all commercially reasonable steps to safeguard the
confidentiality, availability, security, and integrity of the Business IT Systems, including implementing and maintaining appropriate
backup, disaster recovery, and Software and hardware support arrangements.


 






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(j) Seller
has complied with all applicable Laws and all internal or publicly posted policies, notices, and statements concerning the collection,
use, processing, storage, transfer, and security of personal information in the conduct of the Business. In the past three (3) years,
Seller has not (i) experienced any actual, alleged, or suspected data breach or other security incident involving personal information
in its possession or control or (ii) been subject to or received any notice of any audit, investigation, complaint, or other Action
by any Governmental Authority or other Person concerning Seller’s collection, use, processing, storage, transfer, or protection
of personal information or actual, alleged, or suspected violation of any applicable Law concerning privacy, data security, or data breach
notification, in each case in connection with the conduct of the Business, and to Seller’s Knowledge, there are no facts or circumstances
that would reasonably be expected to give rise to any such Action.


 


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


 


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


 


4.14 Customers
and Suppliers.


 


(a) Section 4.14(a)
of the Disclosure Schedules sets forth with respect to the Business (i) the top ten (10) customers of Seller in terms of aggregate
consideration paid to Seller for goods or services rendered for each of the two (2) most recent fiscal years (collectively, the “Material
Customers”); and (ii) the amount of consideration paid by each Material Customer during such periods. Except as set forth
in Section 4.14(a) of the Disclosure Schedules, Seller has not received any notice, and has no Knowledge that any of the Material
Customers has ceased, or intends to cease after the Closing, to use the goods or services of the Business or to otherwise terminate or
materially reduce its relationship with the Business.


 






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(b) Section 4.14(b)
of the Disclosure Schedules sets forth with respect to the Business (i) the top twenty five (25) suppliers of Seller in terms of
aggregate consideration paid by Seller for goods or services rendered for each of the two (2) most recent fiscal years (collectively,
the “Material Suppliers”); and (ii) the amount of purchases from each Material Supplier during such periods. Except
as set forth in Section 4.14(b) of the Disclosure Schedules, Seller has not received any notice, and has no Knowledge that any of
the Material Suppliers has ceased, or intends to cease, to supply goods or services to the Business or to otherwise terminate or materially
reduce its relationship with the Business.


 


4.15 Insurance.
Section 4.15 of the Disclosure Schedules sets forth (a) a true and complete list of all current policies or binders of fire,
liability, product liability, umbrella liability, real and personal property, workers’ compensation, vehicular, fiduciary liability
and other casualty and property insurance maintained by Seller or its Affiliates and relating to the Business, the Purchased Assets or
the Assumed Liabilities (collectively, the “Insurance Policies”); and (b) with respect to the Business, the Purchased
Assets or the Assumed Liabilities, a list of all pending claims and the claims history for Seller since January 1, 2016. Except as
set forth on Section 4.15 of the Disclosure Schedules, there are no claims related to the Business, the Purchased Assets or the Assumed
Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which
there is an outstanding reservation of rights. Neither Seller nor any of its Affiliates has received any written notice of cancellation
of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance
Policies have either been paid or, if not yet due, accrued. All such Insurance Policies (a) are in full force and effect and enforceable
in accordance with their terms; (b) to Seller’s Knowledge, are provided by carriers who are financially solvent; and (c) have
not been subject to any lapse in coverage. None of Seller or any of its Affiliates is in default under, or has otherwise failed to comply
with, in any material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the type and in the
amounts customarily carried by Persons conducting a business similar to the Business and are sufficient for compliance with all applicable
Laws and Contracts to which Seller is a party or by which it is bound. True and complete copies of the Insurance Policies have been made
available to Buyer.


 


4.16 Legal
Proceedings; Governmental Orders.


 


(a) Except
as set forth in Section 4.16(a) of the Disclosure Schedules, there are no Actions pending or, to Seller’s Knowledge, threatened
against or by Seller (a) relating to or affecting the Business, the Purchased Assets or the Assumed Liabilities; or (b) that
challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To Seller’s Knowledge,
no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.


 


(b) Except
as set forth in Section 4.16(b) of the Disclosure Schedules, there are no outstanding Governmental Orders and no unsatisfied judgments,
penalties or awards against, relating to or affecting the Business. Seller is in compliance with the terms of each Governmental Order
set forth in Section 4.16(b) of the Disclosure Schedules. To Seller’s Knowledge, no event has occurred or circumstances exist
that may constitute or result in (with or without notice or lapse of time) a violation of any such Governmental Order.


 






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4.17 Compliance
With Laws; Permits.


 


(a) Except
as set forth in Section 4.17(a) of the Disclosure Schedules, Seller has complied, and is now complying, with all Laws applicable
to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets.


 


(b) All
Permits required for Seller to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets have been
obtained by Seller and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof
have been paid in full. Section 4.17(b) of the Disclosure Schedules lists all current Permits issued to Seller which are related
to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets, including the names of the Permits
and their respective dates of issuance and expiration. No event has occurred that, with or without notice or lapse of time or both, would
reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 4.17(b) of
the Disclosure Schedules.


 


4.18 Environmental
Matters.


 


(a) The
operations of Seller with respect to the Business and the Purchased Assets are currently and have been in compliance with all Environmental
Laws. Seller has not received from any Person, with respect to the Business or the Purchased Assets, any: (i) Environmental Notice
or Environmental Claim; or (ii) written request for information pursuant to Environmental Law, which, in each case, either remains
pending or unresolved, or is the source of ongoing obligations or requirements as of the Closing Date.


 


(b) Seller
has obtained and is in material compliance with all Environmental Permits (each of which is disclosed in Section 4.18(b) of the Disclosure
Schedules) necessary for the conduct of the Business as currently conducted or the ownership, lease, operation or use of the Purchased
Assets and all such Environmental Permits are in full force and effect and shall be maintained in full force and effect by Seller through
the Closing Date in accordance with Environmental Law, and Seller has no Knowledge of any condition, event or circumstance that might
prevent or impede, after the Closing Date, the conduct of the Business as currently conducted or the ownership, lease, operation or use
of the Purchased Assets. With respect to any such Environmental Permits, Seller has undertaken, or will undertake prior to the Closing
Date, all measures necessary to facilitate transferability of the same, and Seller has no Knowledge of any condition, event or circumstance
that might prevent or impede the transferability of the same, and has not received any Environmental Notice or written communication regarding
any material adverse change in the status or terms and conditions of the same.


 


(c) None
of the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by Seller in connection with
the Business is listed on, or has been proposed for listing on, the National Priorities List (or CERCLIS) under CERCLA, or any similar
state list.


 






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


 


(e) Section 4.18(e)
of the Disclosure Schedules contains a complete and accurate list of all active or abandoned aboveground or underground storage tanks
owned or operated by Seller in connection with the Business or the Purchased Assets.


 


(f) Section 4.18(f)
of the Disclosure Schedules contains a complete and accurate list of all off-site Hazardous Materials treatment, storage, or disposal
facilities or locations used by Seller, or to Seller’s Knowledge, any predecessors, in connection with the Business or the Purchased
Assets as to which Seller may retain liability, and none of these facilities or locations has been placed or proposed for placement on
the National Priorities List (or CERCLIS) under CERCLA, or any similar state list, and Seller has not received any Environmental Notice
regarding potential liabilities with respect to such off-site Hazardous Materials treatment, storage, or disposal facilities or locations
used by Seller.


 


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


 


(h) Seller
has provided or otherwise made available to Buyer and listed in Section 4.18(h) of the Disclosure Schedules: (i) any and all
environmental reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models and other similar
documents with respect to the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by
Seller in connection with the Business which are in the possession or control of Seller related to compliance with Environmental Laws,
Environmental Claims or an Environmental Notice or the Release of Hazardous Materials; and (ii) any and all material documents concerning
planned or anticipated capital expenditures required to reduce, offset, limit or otherwise control pollution and/or emissions, manage
waste or otherwise ensure compliance with current or future Environmental Laws (including, without limitation, costs of remediation, pollution
control equipment and operational changes).


 


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


 






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4.19 Employee
Benefit Matters.


 


(a) Section 4.19(a)
of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment, consulting,
profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention,
severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe-benefit
and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to
writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of
ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or
required to be contributed to by Seller for the benefit of any current or former employee, officer, director, retiree, independent contractor
or consultant of the Business or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has
or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability,
contingent or otherwise (as listed on Section 4.19(a) of the Disclosure Schedules, each, a “Benefit Plan”).


 


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


 


(c) Except
as set forth in Section 4.19(c) of the Disclosure Schedules, each Benefit Plan and any related trust has been established, administered
and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA, the Code and any applicable local
Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “Qualified
Benefit Plan”) is so qualified and received a favorable and current determination letter from the Internal Revenue Service with
respect to the most recent five year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter
from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan
is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a),
respectively, of the Code, and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any
Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject
Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to
a penalty under Section 502 of ERISA or to tax or penalty under Sections 4975 or 4980H of the Code.


 






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No pension plan which is subject
to minimum funding requirements (each a “Single Employer Plan”) in which employees of the Business or any ERISA Affiliate
participate or have participated has an “accumulated funding deficiency,” whether or not waived, or is subject to a lien for
unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Single Employer Plan covering employees
of the Business which is a defined benefit plan has an “adjusted funding target attainment percentage,” as defined in Section 436
of the Code, less than 80%. Except as set forth in Section 4.19(c) of the Disclosure Schedules, all benefits, contributions and premiums
relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting
principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent
required by, and in accordance with GAAP.


 


(d) Neither
Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material
Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee
benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit
Plan; (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA;
(v) incurred taxes under Section 4971 of the Code with respect to any Single Employer Plan; or (vi) participated in a multiple
employer welfare arrangements (MEWA).


 


(e) No
Benefit Plan of Seller or any Affiliate is subject to Title IV of ERISA. No Benefit Plan is or ever was a “multiemployer plan”
as that term is defined in Section 3(37) of ERISA. No Benefit Plan is a “multiple employer welfare arrangement” as that term
is defined in Section 3(40) of ERISA.


 


(f) Except
as set forth in Section 4.19(f) of the Disclosure Schedules and other than as required under Sections 601 to 608 of ERISA or
other applicable Law, no Benefit Plan or other arrangement provides post-termination or retiree health benefits to any individual for
any reason.


 


(g) Except
as set forth in Section 4.19(g) of the Disclosure Schedules, there is no pending or, to Seller’s Knowledge, threatened Action
relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to
the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under,
or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.


 


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


 






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


 


(j) Except
as set forth in Section 4.19(j) of the Disclosure Schedules, neither the execution of this Agreement nor any of the transactions
contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any
current or former director, officer, employee, independent contractor or consultant of the Business to severance pay or any other payment
that will become the obligation of Buyer; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation
(including stock-based compensation) due to any such individual; (iii) increase the amount payable under or result in any other material
obligation pursuant to any Benefit Plan; (iv) result in “excess parachute payments” within the meaning of Section 280G(b)
of the Code; or (v) require a “gross-up” or other payment to any “disqualified individual” within the meaning
of Section 280G(c) of the Code.


 


4.20 Employment
Matters.


 


(a) Section 4.20(a)
of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of the Business as
of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and
sets forth for each such individual the following: (i) name; (ii) title or position (including whether full-time or part-time);
(iii) hire or retention date; (iv) current annual base compensation rate or contract fee; (v) commission, bonus or other
incentive-based compensation; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof.
Except as set forth in Section 4.20(a) of the Disclosure Schedules, as of the date hereof, all compensation, including wages, commissions,
bonuses, fees and other compensation, payable to all employees, independent contractors or consultants of the Business for services performed
on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller
with respect to any compensation, commissions, bonuses or fees.


 


(b) Except
as set forth in Section 4.20(b) of the Disclosure Schedules, Seller is not, and has not been for the past three (3) years, a
party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization
(collectively, “Union”), and there is not, and has not been for the past three (3) years, any Union representing
or purporting to represent any employee of Seller, and, to Seller’s Knowledge, no Union or group of employees is seeking or has
sought to organize employees for the purpose of collective bargaining. Except as set forth in Section 4.20(b) of the Disclosure Schedules,
there has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime
or other similar labor disruption or dispute affecting Seller or any employees of the Business. Seller has no duty to bargain with any
Union.


 






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(c) Seller
is not a party to any collective bargaining agreement. Seller is and has been in compliance with the terms of the Contracts listed on
Section 4.20(b) of the Disclosure Schedules and all applicable Laws pertaining to employment and employment practices to the extent
they relate to employees, volunteers, interns, consultants and independent contractors of the Business, including all Laws relating to
labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable
accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination
of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence,
paid sick leave and unemployment insurance. All individuals characterized and treated by Seller as consultants or independent contractors
of the Business are properly treated as independent contractors under all applicable Laws. All employees of the Business classified as
exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified. Seller is in compliance with
and has complied with all immigration laws, including Form I-9 requirements and any applicable mandatory E-Verify obligations. Except
as set forth in Section 4.20(c), there are no Actions against Seller pending, or to the Seller’s Knowledge, threatened to be
brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant,
employee, consultant, volunteer, intern or independent contractor of the Business, including, without limitation, any charge, investigation
or claim relating to unfair labor practices, equal employment opportunities, fair employment practices, employment discrimination, harassment,
retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, employee classification,
child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’
compensation, leaves of absence, paid sick leave, unemployment insurance or any other employment related matter arising under applicable
Laws.


 


(d) Seller
has complied with the WARN Act and corresponding state statutes, and it has no plans to undertake any action in the future that would
trigger the WARN Act.


 


(e) With
respect to each Government Contract, Seller is and has been in compliance with Executive Order No. 11246 of 1965 (“E.O. 11246”),
Section 503 of the Rehabilitation Act of 1973 (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance
Act of 1974 (“VEVRAA”), including all implementing regulations. To the extent required by Law, Seller maintains and complies
with affirmative action plans in compliance with E.O. 11246, Section 503 and VEVRAA, including all implementing regulations. Seller
is not, and has not been for the past three (3) years, the subject of any audit, investigation or enforcement action by any Governmental
Authority in connection with any Government Contract or related compliance with E.O. 11246, Section 503 or VEVRAA. Seller has not
been debarred, suspended or otherwise made ineligible from doing business with the United States government or any government contractor.


 






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4.21 Taxes.
Except as set forth in Section 4.20(e) of the Disclosure Schedules:


 


(a) All
Tax Returns with respect to the Business required to be filed by Seller for any Pre-Closing Tax Period have been, or will be, timely filed.
Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by Seller (whether or not shown
on any Tax Return) have been, or will be, timely paid.


 


(b) Seller
has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any Employee, independent
contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions
of applicable Law.


 


(c) No
extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Seller.


 


(d) All
deficiencies asserted, or assessments made, against Seller as a result of any examinations by any taxing authority have been fully paid.


 


(e) Seller
is not a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority.


 


(f) There
are no Encumbrances for Taxes upon any of the Purchased Assets nor, to Seller’s Knowledge, is any taxing authority in the process
of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than for current Taxes not yet due and payable).


 


(g) Seller
is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.


 


(h) Seller
is not, and has not been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1)
of the Code and Treasury Regulations Section 1.6011 4(b).


 


(i) None
of the Purchased Assets is (i) required to be treated as being owned by another person pursuant to the so-called “safe harbor
lease” provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, (ii) subject to Section 168(g)(1)(A)
of the Code, or (iii) subject to a disqualified leaseback or long-term agreement as defined in Section 467 of the Code.


 


(j) None
of the Purchased Assets is tax-exempt use property within the meaning of Section 168(h) of the Code.


 


4.22 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 Ancillary Document based upon arrangements made by or on behalf of Seller.


 






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4.23 Food
Safety.


 


(a) Except
as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Seller (taken as a whole),
since January 1, 2017, (i) the Seller has complied and is in compliance with (A) the applicable provisions of the Federal
Food, Drug, and Cosmetic Act, the Food Safety Modernization Act, the Federal Meat Inspection Act, and the applicable regulations and requirements
adopted by the U.S. Food and Drug Administration (the “FDA”) and the U.S. Department of Agriculture (the
“USDA”), all applicable statutes enforced by the Federal Trade Commission and the applicable Federal Trade Commission
regulations and requirements, and all other applicable requirements established by any state, local or foreign Governmental Authority
responsible for regulating food products (collectively with the FDA and USDA, the “Food Authorities”) and (B) all
terms and conditions imposed in any Permits granted to Seller by any Food Authority, (ii) except as set forth on Schedule 4.23(a),
there has not been any actual defect or defect alleged in any lawsuit or demand, including any failure or alleged failure to provide adequate
warnings, labeling or instructions and (iii) except as set forth on Schedule 4.23(a), there has not been any actual or, to the
Knowledge of the Seller, alleged violation of any Law relating to any of the products manufactured by or on behalf of Seller, or to their
manufacture, shipment, import, labeling, weights and measurements, use or sale by any Food Authority, in any lawsuit or in any demand
from a lawyer.


 


(b) Except
as (i) set forth in Schedule 4.23(b) or (ii) as has not been, and would not reasonably be expected to, individually or
in the aggregate, be material to the Seller (taken as a whole): (A) since January 1, 2017, the Seller has not voluntarily or
involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, market withdrawal, stock recovery
or replacement relating to any alleged lack of quality, safety or regulatory compliance of any Seller Product, and (B) there has
been no presence, release or exposure to any food, any contaminants or adulterants, food poisoning, pests, mold or microbial agents with
respect to any products manufactured by or on behalf of Seller, and there has not been any facility shutdown or other food-related condition
with respect to any products manufactured by or on behalf of Seller or otherwise with respect to the business of Seller that has given
or would give rise to any liability or obligation of the Seller under Food Safety Laws.


 


4.24 Product
Liability. To the Knowledge of Seller, there is no basis for any Product Liability claim by any third party against the Seller arising
from (a) services rendered by or on behalf of the Seller during the period through and including the Closing Date, (b) the sale,
distribution, erection or installation of any Product, good, component or other item manufactured, sold or delivered by or on behalf of
the Seller whether delivered to a customer before or after the Closing Date or (c) the operation of the Seller or the ownership of
the Seller during the period through and including the Closing Date.


 


4.25 CARES
Act.


 


(a) The
Seller (i) has complied, in all material respects, with all applicable provisions of the Paycheck Protection Program (as defined
in the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) and applicable rules, regulations, and guidance thereunder, in each
case as amended from time to time (the “CARES Act”) in connection with the PPP Loans received by it, including the
submission of applications therefor; (ii) has deposited all proceeds from such PPP Loans only in its allowed disbursement accounts;
and (iii) has used all of the proceeds of the PPP Loans exclusively for uses that are eligible for forgiveness under Section 1106
of the CARES Act and in the manner required under the CARES Act to obtain forgiveness of the largest possible amount of such PPP Loans
and have kept written records of the foregoing.


 






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(b) The
Seller has (i) submitted, in accordance with regulations implementing Section 1106 of the CARES Act, to the U.S. Small
Business Administration and the lender of Seller’s PPP Loan (the “PPP Lender”) a true, correct and complete forgiveness
application with respect to the PPP Loan obtained by Seller, which application accurately reflects Seller’s use of all PPP Loan
proceeds received by it; (ii) maintained and submitted all records and supporting documentation required by Applicable Law to be
maintained by, and submitted to, the PPP Lender in connection with the application for forgiveness of the Seller’s PPP Loan; (iii) as
of the Closing, established an interest-bearing escrow account controlled by the PPP Lender; and (iv) provided Buyer with true, correct
and complete copies of all documents relating to such PPP Loan and the Seller’s application therefor and application for forgiveness.


 


(c) The
Seller has not received notice from any Governmental Authority or PPP Lender that the Seller’s PPP Loan is not forgivable or will
not be forgiven, in whole or in part.


 


4.26 Accredited
Investor. The Seller is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by
the Securities and Exchange Commission under the Securities Act and shall submit to Tattooed Chef such further assurances of such status
as may be reasonably requested by Tattooed Chef.


 


4.27 Restricted
Securities. The Seller understands that the TTCF Shares have not been registered under the Securities Act of 1933, as amended (the
“Securities Act”), by reason of a specific exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment intent and the accuracy of the Seller’s representations as expressed
herein. The Seller understands that the TTCF Shares are “restricted securities” under applicable U.S. federal and state
securities laws and that, pursuant to these laws, the Seller must hold the Shares indefinitely unless they are registered with the Securities
and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available.
The Seller further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the holding period for the TTCF Shares and on requirements relating
to Tattooed Chef which are outside of Seller’s control, and which Tattooed Chef is under no obligation and may not be able to satisfy.


 


4.28 Full
Disclosure. No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this
Agreement or any officer certificate furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of
a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in
which they are made, not misleading. Except as specifically set forth in this Agreement (including, for avoidance of doubt, the Disclosure
Schedules to this Agreement or any officer certificate furnished or to be furnished to Buyer pursuant to this Agreement), Seller does
not make any warranties or representations, express or implied, with respect to the Purchased Assets or the Business.


 






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ARTICLE
V

Representations and warranties of buyer


 


Except as set forth in the
correspondingly numbered Section of the Disclosure Schedules, Buyer represents and warrants to Seller that the statements contained in
this ARTICLE V are true and correct as of the date hereof.


 


5.1 Organization
of Buyer. Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware.


 


5.2 Authority
of Buyer. Buyer has full corporate power and authority to enter into this Agreement and the Ancillary Documents to which Buyer is
a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The
execution and delivery by Buyer of this Agreement and any Ancillary Document to which Buyer is a party, the performance by Buyer of its
obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming
due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable
against Buyer in accordance with its terms. When each Ancillary Document to which Buyer is or will be a party has been duly executed and
delivered by Buyer (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Document will constitute
a legal and binding obligation of Buyer enforceable against it in accordance with its terms.


 


5.3 No
Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the Ancillary Documents to which it is
a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result
in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents
of Buyer; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer;
or (c) except as set forth in Section 5.3 of the Disclosure Schedules, require the consent, notice or other action by any Person
under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice
to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement
and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby.


 


5.4 Brokers.
Except as set forth in Section 5.4 of the Disclosure Schedules, 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 Ancillary Document
based upon arrangements made by or on behalf of Buyer.


 


5.5 Sufficiency
of Funds. Buyer has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Purchase
Price and consummate the transactions contemplated by this Agreement and will have adequate capital to carry on its Business following
Closing.


 


5.6 Legal
Proceedings. Except as set forth in Section 5.6 of the Disclosure Schedules, there are no Actions pending or, to Buyer’s
knowledge, threatened against or by Buyer or any Affiliate of Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions
contemplated by this Agreement. No event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.


 






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ARTICLE
VI

Covenants


 


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


 


(a) preserve
and maintain all Permits required for the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets;


 


(b) pay
the debts, Taxes and other obligations of the Business when due;


 


(c) continue
to collect Accounts Receivable in a manner consistent with past practice, without discounting such Accounts Receivable unless in a manner
consistent with past practice;


 


(d) maintain
the properties and assets included in the Purchased Assets in the same condition as they were on the date of this Agreement, subject to
reasonable wear and tear, in a manner consistent with past practice;


 


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


 


(f) defend
and protect the properties and assets included in the Purchased Assets from infringement or usurpation;


 


(g) perform
all of its obligations under all Assigned Contracts;


 


(h) maintain
the Books and Records in accordance with past practice;


 


(i) comply
in all material respects with all Laws applicable to the conduct of the Business or the ownership and use of the Purchased Assets; and


 


(j) not
take or permit any action that would cause any of the changes, events or conditions described in Section 4.6 to occur.


 






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6.2 Access
to Information. From the date hereof until the Closing, Seller shall (a) afford Buyer and its Representatives full and free access
to and the right to inspect all of the Real Property, properties, assets, premises, Books and Records, Contracts and other documents and
data related to the Business at a reasonable time and place; (b) furnish Buyer and its Representatives with such financial, operating
and other data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c) instruct
the Representatives of Seller to cooperate with Buyer in its investigation of the Business. Without limiting the foregoing, Seller shall
permit Buyer and its Representatives to conduct environmental due diligence and food safety diligence procedure of the Real Property and
operating equipment, including the collecting and analysis of samples of indoor or outdoor air, surface water, groundwater or surface
or subsurface land on, at, in, under or from the Real Property. Any investigation pursuant to this Section 6.2 shall be conducted
in such manner as not to interfere unreasonably with the conduct of the Business or any other businesses of Seller. No investigation by
Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given
or made by Seller in this Agreement. Notwithstanding the foregoing, Buyer shall not contact or communicate with any employee or independent
contractor of Seller without Seller’s written consent; which shall not be unreasonably withheld.


 


6.3 No
Solicitation of Other Bids.


 


(a) Seller
shall not, and shall not authorize or permit any of its Affiliates or any of its or their Representatives to, directly or indirectly,
(i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions
or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any
agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to
be terminated, and shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated,
all existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition
Proposal. For purposes hereof, “Acquisition Proposal” means any inquiry, proposal or offer from any Person (other than
Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion
of the Business or the Purchased Assets.


 


(b) In
addition to the other obligations under this Section 6.3, Seller shall promptly (and in any event within three (3) Business
Days after receipt thereof by Seller or its Representatives) advise Buyer orally and in writing of any Acquisition Proposal, any request
for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result
in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the
Person making the same.


 


(c) Seller
agrees that the rights and remedies for noncompliance with this Section 6.3 shall include having such provision specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable
injury to Buyer and that money damages would not provide an adequate remedy to Buyer.


 






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6.4 Notice
of Certain Events.


 


(a) From
the date hereof until the Closing, Seller shall promptly notify Buyer in writing of:


 


(i) any
fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, (B) has resulted in, or would reasonably be expected to result
in, any representation or warranty made by Seller hereunder not being true and correct or (C) has resulted in, or could reasonably
be expected to result in, the failure of any of the conditions set forth in Section 7.2 to be satisfied;


 


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


 


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


 


(iv) any
Actions commenced or, to Seller’s Knowledge, threatened against, relating to or involving or otherwise affecting the Business, the
Purchased Assets or the Assumed Liabilities that, if pending on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 4.16 or that relates to the consummation of the transactions contemplated by this Agreement.


 


(b) Buyer’s
receipt of information pursuant to this Section 6.4 shall not operate as a waiver or otherwise affect any representation, warranty
or agreement given or made by Seller in this Agreement (including Section 8.2 and Section 9.1(b)) and shall not be deemed to
amend or supplement the Disclosure Schedules, unless after such written disclosure.


 


6.5 Employees
and Employee Benefits.


 


(a) Commencing
on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and, at Buyer’s
sole discretion, Buyer may offer employment, on an “at will” basis, to any or all of such employees. Seller shall bear any
and all obligations and liability under the WARN Act and applicable state statutes resulting from employment losses pursuant to this Section 6.5.


 


(b) Seller
shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current
or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay,
commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the
service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to or on behalf of all entitled
persons on or prior to the Closing Date or in the case of any Benefit Plan, in the ordinary course and/or as required by Law.


 






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(c) Seller
shall remain solely responsible for the satisfaction of all claims benefits under any Benefit Plan of Seller brought by or in respect
of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents
or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible
for all worker’s compensation claims of any current or former employees, officers, directors, independent contractors or consultants
of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts
to the appropriate persons as and when due, subject to the terms of any workers compensation Law or Benefit Plan.


 


(d) Seller
shall terminate all of its employees on the Closing Date. Each employee who becomes employed by Buyer in connection with the transactions
contemplated by this Agreement shall be eligible to receive the salary and benefits maintained for employees of Buyer on substantially
similar terms and conditions in the aggregate as are provided to similarly situated employees of Buyer.


 


(e) Each
employee of the Business who becomes employed by Buyer in connection with the transaction shall be given service credit for the purpose
of eligibility under the group health plan and eligibility and vesting only under the defined contribution retirement plan for his or
her period of service with the Seller prior to the Closing Date; provided, however, that (i) such credit shall be given pursuant
to payroll or plan records, at the election of Buyer, in its sole and absolute discretion; and (ii) such service crediting shall
be permitted and consistent with Buyer’s defined contribution retirement plan.


 


6.6 Confidentiality.
From and after the Closing, Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause
its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the Business,
except to the extent that Seller can show that such information (a) is generally available to and known by the public through no
fault of Seller, any of its Affiliates or their respective Representatives; or (b) is lawfully acquired by Seller, any of its Affiliates
or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information
by a legal, contractual or fiduciary obligation. If Seller or any of its Affiliates or their respective Representatives are compelled
to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Buyer
in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing is legally required
to be disclosed, provided that Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable
assurance that confidential treatment will be accorded such information.


 


6.7 Non-Competition;
Non-Solicitation.


 


(a) For
a period of five (5) commencing on the Closing Date (the “Restricted Period”), Seller shall not, and shall not
permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in
the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory
in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause,
induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing
or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other
Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any
national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not,
directly or indirectly, own five percent (5%) or more of any class of securities of such Person. The foregoing notwithstanding, Seller
may lease the Property to a third-party who is in the Restricted Business after the termination of the Lease.


 






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(b) During
the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person
who is offered employment by Buyer pursuant to Section 6.5(a) or is or was employed in the Business during the Restricted Period,
or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general
solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.7(b) shall
prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after
one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the
employee.


 


(c) Seller
acknowledges that a breach or threatened breach of this Section 6.7 would give rise to irreparable harm to Buyer, for which monetary
damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such
obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach,
be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that
may be available from a court of competent jurisdiction (without any requirement to post bond).


 


(d) Seller
acknowledges that the restrictions contained in this Section 6.7 are reasonable and necessary to protect the legitimate interests
of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this
Agreement. In the event that any covenant contained in this Section 6.7 should ever be adjudicated to exceed the time, geographic,
product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform
such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or
other limitations permitted by applicable Law. The covenants contained in this Section 6.7 and each provision hereof are severable
and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate
or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.


 


6.8 Governmental
Approvals and Consents.


 


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


 






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(b) Seller
and Buyer shall use reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are described
in Section 4.3 and Section 5.3 of the Disclosure Schedules.


 


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


 


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


 


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


 


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


 


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


 


(e) Notwithstanding
the foregoing, nothing in this Section 6.8 shall require, or be construed to require, Buyer or any of its Affiliates to agree to
(i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Buyer or any
of its Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses
or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact
the economic or business benefits to Buyer of the transactions contemplated by this Agreement and the Ancillary Documents; or (iii) any
material modification or waiver of the terms and conditions of this Agreement.


 






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6.9 Books
and Records.


 


(a) In
order to facilitate the resolution of any claims made against or incurred by Seller prior to the Closing, or for any other reasonable
purpose, for a period of five (5) years after the Closing, Buyer shall:


 


(i) retain
the Books and Records (including personnel files) relating to periods prior to the Closing in a manner reasonably consistent with the
prior practices of Seller; and


 


(ii) upon
reasonable notice, afford the Seller’s Representatives reasonable access (including the right to make, at Seller’s expense,
photocopies), during normal business hours, to such Books and Records.


 


(b) In
order to facilitate the resolution of any claims made by or against or incurred by Buyer after the Closing, or for any other reasonable
purpose, for a period of five (5) years following the Closing, Seller shall:


 


(i) retain
the books and records (including personnel files) of Seller which relate to the Business and its operations for periods prior to the Closing;
and


 


(ii) upon
reasonable notice, afford the Buyer’s Representatives reasonable access (including the right to make, at Buyer’s expense,
photocopies), during normal business hours, to such books and records.


 


(c) Neither
Buyer nor Seller shall be obligated to provide the other party with access to any books or records (including personnel files) pursuant
to this Section 6.9 where such access would violate any Law.


 


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


 


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


 


6.12 Bulk
Sales Laws. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction
that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Buyer; it being understood that any
Liabilities arising out of the failure of Seller to comply with the requirements and provisions of any bulk sales, bulk transfer or similar
Laws of any jurisdiction which would not otherwise constitute Assumed Liabilities shall be treated as Excluded Liabilities.


 






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6.13 Receivables.
From and after the Closing, if Seller or any of its Affiliates receives or collects any funds relating to any Accounts Receivable or any
other Purchased Asset, Seller or its Affiliate shall remit such funds to Buyer within five (5) Business Days after its receipt thereof.
From and after the Closing, if Buyer or its Affiliate receives or collects any funds relating to any Excluded Asset, Buyer or its Affiliate
shall remit any such funds to Seller within five (5) Business Days after its receipt thereof.


 


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


 


6.15 Tax
Clearance Certificates. If requested by Buyer, Seller shall notify all of the taxing authorities in the jurisdictions that impose
Taxes on Seller or where Seller has a duty to file Tax Returns of the transactions contemplated by this Agreement in the form and manner
required by such taxing authorities, if the failure to make such notifications or receive any available tax clearance certificate (a “Tax
Clearance Certificate”) could subject the Buyer to any Taxes of Seller. If any taxing authority asserts that Seller is liable
for any Tax, Seller shall promptly pay any and all such amounts and shall provide evidence to the Buyer that such liabilities have been
paid in full or otherwise satisfied.


 


6.16 Further
Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver
such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry
out the provisions hereof and give effect to the transactions contemplated by this Agreement and the Ancillary Documents.


 


6.17 Change
of Seller Name. Within seven (7) days of the Closing, Seller shall file an amended certificate of incorporation with the Delaware
Secretary of State to change its entity name from, and terminate all qualifications or other Governmental Authorizations in any jurisdictions
to do business as, “Belmont Confections” to an entity name which is not confusingly similar thereto, and after the Closing,
Seller shall not use, and shall cause their Affiliates not to use, directly or indirectly, the name “Belmont” or any other
name which is confusingly similar thereto. Seller shall provide evidence of compliance with this Section 6.17 as promptly as practicable
following the Closing.


 






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ARTICLE
VII


Conditions to closing


 


7.1 Conditions
to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the following conditions:


 


(a) No
Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has
the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such
transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.


 


(b) Seller
shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred to in Section 4.3
and Buyer shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred to in Section 5.3,
in each case, in form and substance reasonably satisfactory to Buyer and Seller, and no such consent, authorization, order and approval
shall have been revoked.


 


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


 


(a) Other
than the representations and warranties of Seller contained in Section 4.1, Section 4.2, Section 4.3 and Section 4.22,
the representations and warranties of Seller contained in this Agreement, the Ancillary Documents and any certificate or other writing
delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality
or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or
Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as
of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall
be determined as of that specified date in all respects). The representations and warranties of Seller contained in Section 4.1,
Section 4.2, Section 4.3 and Section 4.22 shall be true and correct in all respects on and as of the date hereof and on
and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that
address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).


 


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


 


(c) No
Action shall have been commenced against Buyer or Seller, which would prevent the Closing. No injunction or restraining order shall have
been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.


 


(d) All
approvals, consents and waivers that are listed on Section 4.3 of the Disclosure Schedules shall have been received, and executed
counterparts thereof shall have been delivered to Buyer at or prior to the Closing.


 






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


 


(f) Seller
shall have delivered to Buyer duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth
in Section 3.2(a).


 


(g) Buyer
shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.


 


(h) All
Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall have
delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.


 


(i) Buyer
shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions
set forth in Section 7.2(a) and Section 7.2(b) have been satisfied (the “Seller Closing Certificate”).


 


(j) Buyer
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached
thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery
and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby,
and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated
hereby and thereby.


 


(k) Buyer
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and
signatures of the officers of Seller authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered
hereunder and thereunder.


 


(l) Buyer
shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”)
that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.


 


(m) Seller
shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate
the transactions contemplated by this Agreement.


 


(n) Buyer
shall have entered into a lease agreement with the owner of the property located at 1598 Motor Inn Drive, Youngstown, OH 44502 on terms
customary for commercial real estate leases in Youngstown, OH, in the form attached as Exhibit G hereto.


 






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


 


(a) Other
than the representations and warranties of Buyer contained in Section 5.1, Section 5.2 and Section 5.4, the representations
and warranties of Buyer contained in this Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto
shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse
Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect)
on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those
representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that
specified date in all respects). The representations and warranties of Buyer contained in Section 5.1, Section 5.2 and Section 5.4
shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though
made at and as of such date.


 


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


 


(c) No
injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any
material transaction contemplated hereby.


 


(d) All
approvals, consents and waivers that are listed on Section 5.3 of the Disclosure Schedules shall have been received, and executed counterparts
thereof shall have been delivered to Seller at or prior to the Closing.


 


(e) Buyer
shall have delivered to Seller duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth
in Section 3.2(b).


 


(f) Buyer
shall have delivered the Purchase Price Adjustment Escrow Amount and the Indemnification Escrow Amount to the Escrow Agent pursuant to
Section 3.2(c).


 


(g) Seller
shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Buyer, that each of the conditions
set forth in Section 7.3(a) and Section 7.3(b) have been satisfied (the “Buyer Closing Certificate”).


 


(h) Seller
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached
thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery
and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby,
and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated
hereby and thereby.


 


(i) Seller
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and
signatures of the officers of Buyer authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered
hereunder and thereunder.


 


(j) Buyer
shall have delivered to Seller such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate
the transactions contemplated by this Agreement.


 


(k) Buyer
shall have entered into that certain Employment Agreement with George Tsudis in the form of Exhibit F hereto (the “Employment
Agreement”);


 






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ARTICLE
VIII


Indemnification


 


8.1 Survival.
Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the
Closing and shall remain in full force and effect until the date that is twelve (12) months from the Closing Date; provided, that
the representations and warranties in (i) Section 4.1 (Organization and Qualification of Seller), Section 4.2 (Authority
of Seller), Section 4.8 (Title to Purchased Assets), (collectively, the “Seller Fundamental Representations”),
Section 4.18 (Environmental Matters), Section 4.18(i) (Employee Benefit Matters) Section 4.22 (Brokers) (collectively,
with Section 4.20(e), the “Seller Special Representations”), Section 5.1 (Organization of Buyer), Section 5.2
(Authority of Buyer) and Section 5.4 (Brokers) (collectively, the “Buyer Fundamental Representations”) shall survive
indefinitely, and (ii) Section 4.20(e) (Taxes) shall survive for the full period of all applicable statutes of limitations
(giving effect to any waiver, mitigation or extension thereof) plus 60 days. All covenants and agreements of the parties contained herein
shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted
in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to
the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of
the relevant representation or warranty and such claims shall survive until finally resolved.


 


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


 


(a) any
inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement, the Ancillary Documents or
in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such representation or
warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties
that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);


 


(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the Ancillary
Documents or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement; or


 


(c) any
Excluded Asset or any Excluded Liability; or


 






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(d) any
Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Seller or
any of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing
Date.


 


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


 


(a) any
inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument
delivered by or on behalf of Buyer pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation
or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date,
the inaccuracy in or breach of which will be determined with reference to such specified date);


 


(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement;


 


(c) any
Assumed Liability;


 


(d) any
Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Buyer or
any of its Affiliates (other than (i) the Excluded Assets or Excluded Liabilities, and (ii) a Third party Claim resulting from a breach
by Seller under this Agreement or the Ancillary Documents) conducted, existing or arising after the Closing Date.


 


8.4 Certain
Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:


 


(a) Seller
shall not be liable to the Buyer Indemnitees for indemnification under Section 8.2(a) until the aggregate amount of all Losses in
respect of indemnification under Section 8.2(a) exceeds twenty five thousand dollars ($25,000) (the “Deductible”),
in which event Seller shall be required to pay or be liable for all such Losses that exceed the Deductible. The aggregate amount of all
Losses for which Seller shall be liable pursuant to Section 8.2(a) shall not exceed two million dollars ($2,000,000) (the “Cap”).


 


(b) Buyer
shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in
respect of indemnification under Section 8.3(a) exceeds the Deductible, in which event Buyer shall be required to pay or be liable
for all such Losses that exceed the Deductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a)
shall not exceed the Cap.


 






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(c) Notwithstanding
the foregoing, the limitations set forth in Section 8.4(a) and Section 8.4(b) shall not apply to Losses based upon, arising
out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in the Seller Fundamental Representations,
the Seller Special Representations, or the Buyer Fundamental Representations. The aggregate amount of all Losses for which Seller shall
be liable under the Seller Fundamental Representations and the Seller Special Representations shall not exceed the Purchase Price. The
aggregate amount of all Losses for which Buyer shall be under the Buyer Fundamental Representations shall not exceed the Purchase Price.


 


(d) For
purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any
materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.


 


(e) Notwithstanding
any provision to the contrary in this Agreement, in no event shall an Indemnified Party be entitled to double recovery under this Agreement.
In particular, in the event any circumstances given rise to a Loss constitute a breach of more than one representation and warranty, obligation
or covenant on the part of any Indemnifying Party, the Indemnified Party shall only collectively be entitled to be indemnified once in
respect of such Loss.


 


8.5 Indemnification
Procedures. The party making a claim under this ARTICLE VIII is referred to as the “Indemnified Party”, and the
party against whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnifying Party”.


 


(a) Third
Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who
is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third
Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification
under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event
not later than thirty (30) calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt
written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that
the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the
Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated
amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall
have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim
at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate
in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right
to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a
supplier or customer of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. In the
event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.5(b), it shall have the right
to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim
in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third
Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements
of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the
Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those
available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified
Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified
Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise
or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this
Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.5(b),
pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to
such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of
any Third Party Claim, including making available (subject to the provisions of Section 6.6) records relating to such Third Party
Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees
of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.


 






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(b) Settlement
of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of
any Third Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 8.5(b). If a
firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the
part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities
and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying
Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer
within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim
and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement
offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying
Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified
Party has assumed the defense pursuant to Section 8.5(a), it shall not agree to any settlement without the written consent of the
Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).


 


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


 






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8.6 Payments;
Indemnification Escrow Fund.


 


(a) Once
a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this ARTICLE VIII, the Indemnifying Party
shall satisfy its obligations within fifteen (15) Business Days of such final, non-appealable adjudication by wire transfer of immediately
available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such
fifteen (15) Business Day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying
Party or final, non-appealable adjudication to and including the date such payment has been made at a rate per annum equal to two percent
(2.0%). Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed.


 


(b) Any
Losses payable to a Buyer Indemnitee pursuant to this ARTICLE VIII shall be satisfied: (i) from the Indemnification Escrow Fund;
and (ii) to the extent the amount of Losses exceeds the amounts available to the Buyer Indemnitee in the Indemnification Escrow Fund,
from Seller.


 


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


 


8.8 Effect
of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right
to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of
the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives
knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party’s
waiver of any condition set forth in Section 7.2 or Section 7.3, as the case may be.


 


8.9 Exclusive
Remedies. Subject to Section 2.6, Section 6.7 and Section 10.11, the parties acknowledge and agree that their sole
and exclusive remedy with respect to any and all claims (other than claims arising from fraud, criminal activity or willful misconduct
on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation,
warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant
to the indemnification provisions set forth in this ARTICLE VIII. In furtherance of the foregoing, each party hereby waives, to the fullest
extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant,
agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties
hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification
provisions set forth in this ARTICLE VIII. Nothing in this Section 8.8 shall limit any Person’s right to seek and obtain any
equitable relief to which any Person shall be entitled or to seek any remedy on account of any party’s fraudulent, criminal or intentional
misconduct.


 






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ARTICLE
IX


Termination


 


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


 


(a) by
the mutual written consent of Seller and Buyer;


 


(b) by
Buyer by written notice to Seller if:


 


(i) Buyer
is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any
representation, warranty, covenant or agreement made by Seller pursuant to this Agreement that would give rise to the failure of any of
the conditions specified in ARTICLE VII and such breach, inaccuracy or failure has not been cured by Seller within ten (10) days
of Seller’s receipt of written notice of such breach from Buyer; or


 


(ii) any
of the conditions set forth in Section 7.1 or Section 7.2 shall not have been, or if it becomes apparent that any of such conditions
will not be, fulfilled by September 30, 2021, unless such failure shall be due to the failure of Buyer to perform or comply with
any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;


 


(c) by
Seller by written notice to Buyer if:


 


(i) Seller
is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any
representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of
the conditions specified in ARTICLE VII and such breach, inaccuracy or failure has not been cured by Buyer within ten (10) days of
Buyer’s receipt of written notice of such breach from Seller; or

 






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(ii)    any
of the conditions set forth in Section 7.1 or Section 7.3 shall not have been, or if it becomes apparent that any of such conditions
will not be, fulfilled by September 30, 2021, unless such failure shall be due to the failure of Seller to perform or comply with
any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or


 


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


 


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


 


(a)    as
set forth in this ARTICLE IX and Section 6.6 and ARTICLE X hereof; and


 


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


 


ARTICLE
X

Miscellaneous


 


10.1    Expenses.
Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses, whether or not the Closing shall have occurred; provided, however, Buyer shall
pay all amounts payable to Harrison Co., LLC.


 


10.2    Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to
have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent
by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with
confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal
business hours of the recipient or (d) on the third (3rd) day after the date mailed, by certified or registered mail,
return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in accordance with this Section 10.2):


 


	If to Seller:	
    Belmont Confections, Inc.

    1598 Motor Inn Drive

    Youngstown, OH 44502

    E-mail: George@belmontconfections.com

    Attention: George Tsudis, President

     




 






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	with a copy to:	
    Meyers, Roman, Friedberg & Lewis

    Facsimile: 216-831-0542

    E-mail: dneumann@meyersroman.com

    Attention: David Neumann

     

	If to Buyer:	
    Tattooed Chef, Inc.

    6305 Alondra Blvd

    Paramount, CA 90723

    E-mail: Sam@tattooedchef.com

    Attention: Salvatore Galletti, President

     

	with a copy to:	
    Rutan & Tucker LLP

    18575 Jamboree Rd

    9th Floor

    Irvine, CA 92612

    Facsimile: 714-546-9035

    E-mail: rsimon@rutan.com

    Attention: Rachel A. Simon



 






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


 


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


 


10.5    Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other
jurisdiction. Except as provided in Section 6.7(d), upon such determination that any term or other provision is invalid, illegal
or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.


 


10.6    Entire
Agreement. This Agreement and the Ancillary Documents constitute the sole and entire agreement of the parties to this Agreement with
respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements,
both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this
Agreement and those in the Ancillary Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as
such in the Disclosure Schedules), the statements in the body of this Agreement will control.


 






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10.7    Successors
and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party,
which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that prior to the Closing Date, Buyer
may, without the prior written consent of Seller, assign all or any portion of its rights under this Agreement to one or more of its direct
or indirect wholly-owned subsidiaries. No assignment shall relieve the assigning party of any of its obligations hereunder.


 


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


 


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


 


10.10    Governing
Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement and the Transaction shall be governed
by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction
that might be applied because of the conflicts of laws principles of the State of Delaware.


 


10.11    Specific
Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to
specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court located in the State of California, provided, that if jurisdiction
is not then available in such court, then in any state or federal court located in the State of Delaware, this being in addition to any
other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any
action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as
a prerequisite to obtaining equitable relief.


 






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10.12    Arbitration
of Disputes.


 


(a)    This
Agreement and all Ancillary Agreements and all disputes or controversies arising out of or relating to this Agreement or the Ancillary
Agreements or the Transaction (whether in contract, tort, equity or otherwise), including the arbitrability of any dispute or controversy
that cannot be settled by mutual agreement (with the exception of any employment related agreements for post-closing periods which will
be governed by their own terms) shall be finally settled by binding arbitration in accordance with the Comprehensive Arbitration Rules
& Procedures of Judicial Arbitration & Mediation Service, Inc. (“JAMS”), as set forth in Section 16.1 et seq.
of the JAMS rules, or any successor provision thereto, as follows: Any party aggrieved will deliver a notice to the other party setting
forth the specific points in dispute. Any points remaining in dispute 20 days after the giving of such notice may, upon 10 days’
notice to the other party, be submitted to JAMS arbitration conducted before a single neutral arbitrator in Orange County, California;
provided, however, that if the dispute involves claims of greater than $5,000,000, the JAMS arbitration shall be conducted before a panel
of three arbitrators. With respect to disputes before a single arbitrator, the arbitrator shall be appointed by agreement of the parties
hereto or, if no agreement can be reached, by JAMS in accordance with its rules. With respect to disputes before a panel of three arbitrators,
the Buyer and the Seller shall each appoint one arbitrator (the “Party-Appointed Arbitrators”) and the Party-Appointed Arbitrators
shall appoint the third and presiding arbitrator within 14 days of the appointment of the second arbitrator; provided, that, any arbitrator
not timely appointed herein shall be appointed by the JAMS upon the written demand of any party to the dispute. The arbitrator(s) may
enter a default decision against any party who fails to participate in the arbitration proceedings. All arbitrators shall serve as neutral,
independent, and impartial arbitrators. For avoidance of doubt, the parties have a right to conduct pre-hearing third-party discovery
under California Code of Civil Procedure Sections 1283.5 and 1283.1.


 


(b)    The
decision of the arbitrator(s) on the points in dispute will be final, unappealable and binding, and judgment on the award may be entered
in any court having jurisdiction thereof. The arbitrator(s) shall only be authorized to interpret the provisions of this Agreement, and
shall not amend, change or add to any such provisions. The parties agree that this provision has been adopted by the parties to rapidly
and inexpensively resolve any disputes between them and that this provision will be grounds for dismissal of any court action commenced
by either party with respect to this Agreement, other than post-arbitration actions seeking to enforce an arbitration award or proceedings
seeking equitable relief as permitted under Section 10.11. In the event that any court determines that this arbitration procedure
is not binding, or otherwise allows any litigation regarding a dispute, claim, or controversy covered by this Agreement to proceed, the
parties hereto hereby waive any and all right to a trial by jury in or with respect to such litigation.


 


(c)    Except
as otherwise provided in this Agreement or by applicable law, the arbitrator(s) will be authorized to apportion its (or their) fees and
expenses as the arbitrator(s) deems appropriate and the arbitrator(s) will be authorized to award the prevailing party its fees and expenses
(including attorneys’ fees). In the absence of any such apportionment or award, each party will bear its own expenses and the fees
of its own attorney.


 


(d)    The
parties and the arbitrator(s) will keep confidential, and will not disclose to any Person, except the parties’ advisors and legal
representatives, or as may be required by law, the existence of any controversy under this Section 10.12 the referral of any such
controversy to arbitration or the status or resolution thereof.


 


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


 


[signature
page follows]


 




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


 


	 	BELMONT CONFECTIONS, INC.
	 	 
	 	By: 	/s/ George Tsudis
	 	Name: 	 GEORGE TSUDIS
	 	Title: 	PRESIDENT
	 	 
	 	BCI ACQUISITION, INC.
	 	 
	 	By: 	/s/ Salvatore Galletti
	 	Name:	 SALVATORE GALLETTI
	 	Title:	 PRESIDENT



 



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