ASSET
PURCHASE AGREEMENT


 


among


 


Acorn
Energy, Inc.,


 


GridSense,
Inc.


 


and


 


Franklin
Fueling Systems, Inc.


 


dated
as of


 


July
11, 2016


 




    	 	 	 



     

    


 


ASSET
PURCHASE AGREEMENT


 


This
Asset Purchase Agreement (this “Agreement”), dated as of July 11, 2016, is entered into between Acorn Energy,
Inc. a Delaware corporation (“Acorn), GridSense, Inc. a Colorado corporation (“GridSense”), (collectively
“Seller”) and Franklin Fueling Systems, Inc., an Indiana corporation (“Buyer”).


 


Recitals


 


WHEREAS,
Acorn is the parent company of GridSense; and


 


WHEREAS,
GridSense is engaged in the business of designing, manufacturing, and selling intelligent electrical current sensing equipment,
analytical software, and diagnostic tools, (the “Business”); and


 


WHEREAS,
Seller wish 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;


 


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:


 


“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 2.06.


 


“Assigned
Contracts” has the meaning set forth in Section 2.01(b).


 




    	 	2	 



     

    


 


“Assignment
and Assumption Agreement” has the meaning set forth in Section 3.02(a)(iii).


 


“Assignment
and Assumption of Lease” has the meaning set forth in Section 3.02(a)(v).


 


“Assumed
Liabilities” has the meaning set forth in Section 2.03.


 


“Balance
Sheet” has the meaning set forth in Section 4.04.


 


“Balance
Sheet Date” has the meaning set forth in Section 4.04.


 


“Basket”
has the meaning set forth in Section 7.04(a).


 


“Benefit
Plan” has the meaning set forth in Section 4.18(a).


 


“Bill
of Sale” has the meaning set forth in Section 3.02(a)(ii).


 


“Books
and Records” has the meaning set forth in Section 2.01(i).


 


“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 the United States of
America are authorized or required by Law to be closed for business.


 


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


 


“Buyer
Closing Certificate” shall mean a certificate of Buyer as to compliance with the conditions to closing reasonably satisfactory
to counsel to Seller


 


“Buyer
Indemnitees” has the meaning set forth in Section 7.02.


 


“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 3.01.


 


“Closing
Date” has the meaning set forth in Section 3.01.


 


“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.


 




    	 	3	 



     

    


 


“Direct
Claim” has the meaning set forth in Section 7.05(c).


 


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


 


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


 


“Encumbrance”
means any charge, claim, 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
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.


 


“Escrow
Agent” means Signature Bank, acting as Escrow Agent under the terms hereof.


 


“Escrow
Agreement” shall mean the Escrow Agreement between Seller, Buyer and Escrow Agent the form of Exhibit A hereto


 


“Escrow
Amount” means the sum of $100,000 to be deposited with the Escrow Agent and held in escrow and disbursed pursuant to
the terms of this Agreement.


 


“Excluded
Assets” has the meaning set forth in Section 2.02.


 


“Excluded
Contracts” has the meaning set forth in Section 2.02(a).


 


“Excluded
Liabilities” has the meaning set forth in Section 2.04.


 


“Financial
Statements” has the meaning set forth in Section 4.04.


 


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


 




    	 	4	 



     

    


 


“Governmental
Authority” means any federal, state, or 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 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.


 


“Indemnified
Party” has the meaning set forth in Section 7.05.


 


“Indemnifying
Party” has the meaning set forth in Section 7.05.


 


“Insurance
Policies” has the meaning set forth in Section 4.14.


 


“Intellectual
Property” means all intellectual property and industrial property rights and assets, and all rights, interests and protections
that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant to the
Laws of any jurisdiction throughout the world, whether registered or unregistered, including any and all: (a) trademarks, service
marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association
or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals
for, any of the foregoing; (b) internet domain names, whether or not trademarks, registered in any top-level domain by any authorized
private registrar or Governmental Authority, web addresses, web pages, websites and related content, accounts with Twitter, Facebook
and other social media companies and the content found thereon and related thereto, and URLs; (c) works of authorship, expressions,
designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring
rights, and all registrations, applications for registration and renewals of such copyrights; (d) inventions, discoveries, trade
secrets, business and technical information and know-how, databases, data collections and other confidential and proprietary information
and all rights therein; (e) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part,
re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental
Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models);
(f) software and firmware, including data files, source code, object code, application programming interfaces, architecture, files,
records, schematics, computerized databases and other related specifications and documentation; (g) semiconductor chips and mask
works; (h) royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of
the foregoing; and (i) all rights to any Actions of any nature available to or being pursued by Seller to the extent related to
the foregoing, whether accruing before, on or after the date hereof, including all rights to and claims for damages, restitution
and injunctive relief for infringement, dilution, misappropriation, violation, misuse, breach or default, with the right but no
obligation to sue for such legal and equitable relief, and to collect, or otherwise recover, any such damages.


 






    	 	5	 



     

    

 






“Intellectual
Property Agreements” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements,
covenants not to sue, permissions and other Contracts (including any right to receive or obligation to pay royalties or any other
consideration), whether written or oral, relating to any Intellectual Property that is used in or necessary for the conduct of
the Business as currently 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 in or necessary for the conduct of
the Business as currently conducted.


 


“Intellectual
Property Assignments” has the meaning set forth in Section 3.02(a)(iv).


 


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


 


“Interim
Balance Sheet” has the meaning set forth in Section 4.04.


 


“Interim
Balance Sheet Date” has the meaning set forth in Section 4.04.


 


“Inventory”
has the meaning set forth in Section 2.01(a).


 


“Knowledge
of Seller or Seller’s Knowledge” or any other similar knowledge qualification, means the actual knowledge of any
director or officer of Seller, and the knowledge that such persons would have after reasonable inquiry of the employees or former
employees of Seller with primary responsibility for the matter in question.


 


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


 


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


 


“Lease”
has the meaning set forth in Section 4.10(a).


 


“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.


 


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


 




    	 	6	 



     

    


 


“Material
Adverse Effect” means any event, occurrence, fact, condition or change that is, or is reasonably likely to 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.


 


“Material
Contracts” has the meaning set forth in Section 4.07(a).


 


“Material
Customers” has the meaning set forth in Section 4.13(a).


 


“Material
Suppliers” has the meaning set forth in Section 4.13(b).


 


“Multiemployer
Plan” has the meaning set forth in Section 4.18(c).


 


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


 


“Permitted
Encumbrances” has the meaning set forth in Section 4.08.


 


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


 


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


 


“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.


 


“Purchase
Price” has the meaning set forth in Section 2.05.


 


“Purchased
Assets” has the meaning set forth in Section 2.01.


 


“Qualified
Benefit Plan” has the meaning set forth in Section 4.18(c).


 


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


 


“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).


 




    	 	7	 



     

    


 


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


 


“Restricted
Business” means designing, manufacturing, and selling intelligent electrical current sensing equipment, analytical software,
and diagnostic tools.


 


“Restricted
Period” has the meaning set forth in Section 6.02(a).


 


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


 


“Seller
Indemnitees” has the meaning set forth in Section 7.03.


 


“Tangible
Personal Property” has the meaning set forth in Section 2.01(d).


 


“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 of America.


 


“Third
Party Claim” has the meaning set forth in Section 7.05(a).


 


“Transaction
Documents” means this Agreement, the Escrow Agreement, the Bill of Sale, the Assignment and Assumption Agreement, Intellectual
Property Assignments, Assignment and Assumption of Leases, the Transition Services Agreement and the other agreements, instruments
and documents required to be delivered at the Closing.


 


“Transition
Services Agreement” has the meaning set forth in Section 3.02(a)(vi).


 


“Union”
has the meaning set forth in Section 4.190(b).


 




    	 	8	 



     

    


 


ARTICLE
II

Purchase and Sale


 


Section
2.01Purchase 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, 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
inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (“Inventory”);



 


(b)all
Contracts, set forth on Section 2.01 of the Disclosure Schedules (the “Assigned Contracts”);


 


(c)all
Intellectual Property Assets;


 


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


 


(e)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;


 


(f)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);


 


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


 


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


 


(i)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”).


 




    	 	9	 



     

    


 


Section
2.02Excluded Assets. Notwithstanding
the foregoing, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”):


 


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


 


(b)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;


 


(c)all
Benefit Plans and assets attributable thereto; 


 


(d)the
assets, properties and rights specifically set forth on Section 2.02 of the Disclosure Schedules; and


 


(e)all
items referred to in Sections 2.01(e) through (i), to the extent they relate to Excluded Assets or Excluded Liabilities.


 


Section
2.03Assumed Liabilities.
Subject to the terms and conditions set forth herein, Buyer shall assume and agree to pay, perform and discharge those Liabilities
of Seller set forth on Section 2.03 of the Disclosure Schedules (collectively, the “Assumed Liabilities”),
and no other Liabilities.


 


Section
2.04Excluded Liabilities.
Notwithstanding the provisions of Section 2.03 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 other Transaction Documents and the transactions contemplated hereby, 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) 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 6.06; 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;


 




    	 	10	 



     

    


 


(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;


 


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


 


(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;


 


(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 to the extent arising out of any actions or omissions of Seller;


 


(j)any
trade accounts payable of Seller;


 


(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
7.03 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, (including but not limited to the Transformer IQ purchase and royalty agreements);


 


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



 




    	 	11	 



     

    


 


(o)any
Liabilities associated with intercompany loans between subsidiaries or affiliated entities; and


 


(p)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.


 


Section
2.05Purchase Price. The
aggregate purchase price for the Purchased Assets shall be $1,000,000, (the “Purchase Price”), plus the assumption
of the Assumed Liabilities. The Purchase Price shall be paid as follows:


 


(a)The
Purchase Price less the Escrow Amount shall be paid by wire transfer of immediately available funds to an account designated in
writing by Seller to on the Closing Date; and


 


(b)The
Escrow Amount shall be deposited by wire transfer into an account designated by the Escrow Agent and shall be held and distributed
in accordance with the terms of the Escrow Agreement to satisfy any and all claims made by Buyer or any other Buyer Indemnitee
against Seller pursuant to Article VII.


 


Section
2.06Allocation 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 calendar
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 sixty calendar days following
the Closing Date, such dispute shall be resolved by an 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 2.06 herein shall be allocated in a manner consistent with the Allocation Schedule.


 


Section
2.07Third 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 2.07 to the contrary, Buyer shall
not be deemed to have waived its rights to the receipt of all required consents listed in the Disclosure Schedule unless and until
Buyer either provides written waivers thereof or elects to proceed to consummate the transactions contemplated by this Agreement
at Closing.


 




    	 	12	 



     

    


 


ARTICLE
III

Closing


 


Section
3.01Closing. Subject to
the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”)
shall take place at the respective offices of the parties on July 11, 2016. The date on which the Closing is to occur is herein
referred to as the “Closing Date”.


 


Section
3.02Closing Deliverables.



 


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


 


(i)the
duly executed Escrow Agreement;


 


(ii)a
bill of sale in the form of Exhibit C hereto (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 D hereto (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 E hereto (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 the 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)the
Transition Services Agreement in the form of Exhibit B hereto (the “Transition Services Agreement”) and duly
executed by Seller;


 


(vii)the
Seller Closing Certificate;


 


(viii)
certificates of the Secretary or Assistant Secretary of Seller as to authority and incumbency; and


 




    	 	13	 



     

    


 


(ix)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.


 


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


 


(i)the
Purchase Price less the Escrow Amount;


 


(ii)the
duly executed Escrow Agreement;


 


(iii)the
duly executed Assignment and Assumption Agreement;


 


(iv)with
respect to the Lease, a duly executed Assignment and Assumption of Lease;


 


(v)the
duly executed Transition Services Agreement;


 


(vi)the
Buyer Closing Certificate; and


 


(vii)certificates
of the Secretary or Assistant Secretary of Buyer as to authority and incumbency


 


(c)At
the Closing, Buyer shall deliver the Escrow Amount to the Escrow Agent pursuant to the Escrow Agreement.


 


ARTICLE
IV

Representations and warranties
of Seller


 


Except
as set forth in the correspondingly numbered Section of the Disclosure Schedules, Seller represents and warrants to Buyer that
the statements contained in this Article IV are true and correct as of the date hereof. Except for the representations
and warranties contained in this Article IV (and the related Disclosure Schedules), neither Seller nor any other Person has made
or makes any other express or implied representation or warranty, either written or oral, on behalf of Seller.


 


Section
4.01Organization and Qualification of Seller.
GridSense and Acorn are corporations duly organized, validly existing and in good standing under the Laws of the state of Colorado
and Delaware, respectively; and each 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 4.01 of the Disclosure
Schedules sets forth each jurisdiction in which GridSense is licensed or qualified to do business, and GridSense 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.


 




    	 	14	 



     

    


 


Section
4.02Authority of Seller.
Seller has a full corporate power and authority to enter into this Agreement and the other Transaction 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 other Transaction 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 other Transaction 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 Transaction Document will constitute a legal and binding obligation of Seller enforceable
against it in accordance with its terms.


 


Section
4.03No Conflicts; Consents.
The execution, delivery and performance by Seller of this Agreement and the other Transaction 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) 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 other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.


 


Section
4.04Financial Statements.
Complete copies of unaudited financial statements consisting of the balance sheet of GridSense at December 31, 2015 and the related
statements of income the fiscal year then ended (the “Financial Statements”) have been provided to Buyer. The
Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved,
subject to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes.
The Financial Statements are based on the books and records of GridSense, 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. The
balance sheet of GridSense as of June 30, 2016 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 June 30, 2016 is referred to herein
as the “Interim Balance Sheet” and the date thereof as the “Interim Balance Sheet Date”.
GridSense maintains a standard system of accounting for the Business established and administered in accordance with GAAP.


 




    	 	15	 



     

    


 


Section
4.05Undisclosed Liabilities.
GridSense has no Liabilities with respect to the Business, except (a) those which are adequately reflected or reserved against
in the Interim Balance Sheet as of the Interim 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.


 


Section
4.06Absence of Certain Changes, Events and Conditions.
Since the Interim 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 could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;


 


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


 


(c)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;


 


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


 


(e)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;


 


(f)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;


 


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


 


(h)transfer,
assignment or grant of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets
or Intellectual Property Agreements;


 


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


 




    	 	16	 



     

    


 


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


 


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


 


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


 


(m)(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 $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;


 


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


 


(o)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;


 


(p)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;


 


(q)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;


 


(r)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, individually (in the case of a lease, per annum) or $50,000 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;


 


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


 




    	 	17	 



     

    


 


Section
4.07Material Contracts.



 


(a)Section
4.07(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,
being “Material Contracts”):


 


(i)all
Contracts involving aggregate consideration in excess of $25,000 and which, in each case, cannot be cancelled without penalty
or without more than ninety 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 days’ notice;


 


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


 


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


 


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


 


(x)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;


 


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


 




    	 	18	 



     

    


 


(xii)all
other Contracts that are material to the Purchased Assets or the operation of the Business and not previously disclosed.


 


(b)Each
Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect. Neither Seller
nor, 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), 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 thereunder. 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 threatened under any Contract included in the Purchased
Assets.


 


Section
4.08 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 4.08 of the Disclosure Schedules;


 


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


 


(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)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.


 


Section
4.09Condition and Sufficiency of Assets.
Except as set forth in Section 4.09 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 none of such
buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property
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 sufficient for the continued conduct of the Business after the Closing in substantially the same manner
as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the Business as currently
conducted. None of the Excluded Assets are material to the Business.


 




    	 	19	 



     

    


 


Section
4.10Real Property. 


 


(a)Section
4.10(a) of the Disclosure Schedules sets forth each parcel of real property leased by GridSense and used in or necessary for
the conduct of the Business as currently conducted (together with all rights, title and interest of GridSense 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 GridSense holds any Leased Real Property (collectively, the “Leases”).
GridSense 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 GridSense enjoys peaceful possession of the Leased Real
Property;


 


(ii)GridSense
is in good standing under such Lease;


 


(iii)GridSense
has not received nor given any notice of any default and, to the Knowledge of GridSense, no other party is in default thereof,
and no party to any Lease has exercised any termination rights with respect thereto;


 


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


 


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


 


(b)GridSense
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.


 


(c)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.


 




    	 	20	 



     

    


 


Section
4.11Intellectual Property.



 


(a)Section
4.11(a) of the Disclosure Schedules lists all (i) Intellectual Property Registrations and (ii) Intellectual Property Assets,
including software, that are not registered but that are material to the operation of the Business. All required filings and fees
related to the Intellectual Property Registrations have been timely filed with and paid to the relevant Governmental Authorities
and authorized registrars, and all Intellectual Property Registrations are otherwise in good standing. GridSense has provided
Buyer with true and complete copies of file histories, documents, certificates, office actions, and other materials related to
all Intellectual Property Registrations.


 


(b)GridSense
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 right to use all other Intellectual
Property used in or necessary for the conduct of the Business as currently conducted, in each case, free and clear of Encumbrances
other than Permitted Encumbrances. Without limiting the generality of the foregoing, GridSense has entered into binding, written
agreements with every current and former employee of GridSense, and with every current and former independent contractor, whereby
such employees and independent contractors (i) assign to GridSense any ownership interest and right they may have in the Intellectual
Property Assets; and (ii) acknowledge GridSense’s exclusive ownership of all Intellectual Property Assets. GridSense has
provided Buyer with true and complete copies of all such agreements.


 


(c)The
Intellectual Property Assets and Intellectual Property licensed under the Intellectual Property Agreements are all of the Intellectual
Property necessary to operate the Business as presently conducted. The consummation of the transactions contemplated hereunder
will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of
any other Person in respect of, the Buyer’s right to own, use or hold for use any Intellectual Property as owned, used or
held for use in the conduct of the Business as currently conducted.


 


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


 


(e)The
conduct of the Business as currently and formerly conducted, and the Intellectual Property Assets and Intellectual Property licensed
under the Intellectual Property Agreements as currently or formerly owned, licensed or used by Seller, have not infringed, misappropriated,
diluted or otherwise violated, and have not, do not and will not infringe, dilute, misappropriate or otherwise violate, the Intellectual
Property or other rights of any Person. No Person has infringed, misappropriated, diluted or otherwise violated, or is currently
infringing, misappropriating, diluting or otherwise violating, any Intellectual Property Assets.


 




    	 	21	 



     

    


 


(f)There
are no Actions (including any oppositions, interferences or re-examinations) settled, pending or threatened (including in the
form of offers to obtain a license): (i) alleging any infringement, misappropriation, dilution or violation of the Intellectual
Property of any Person by GridSense in connection with the Business; (ii) challenging the validity, enforceability, registrability
or ownership of any Intellectual Property Assets or Seller’s rights with respect to any Intellectual Property Assets; or
(iii) by Seller or any other Person alleging any infringement, misappropriation, dilution or violation by any Person of any Intellectual
Property Assets. Seller is not subject to any outstanding or prospective Governmental Order (including any motion or petition
therefor) that does or would restrict or impair the use of any Intellectual Property Assets.


 


Section
4.12Inventory. 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 GridSense
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 GridSense.


 


Section
4.13Customers and Suppliers.



 


(a)Section
4.13(a) of the Disclosure Schedules sets forth with respect to the Business (i) each customer who is listed in the GridSense
SAP system (collectively, the “Material Customers”). Except as set forth in Section 4.13(a) of the Disclosure
Schedules, GridSense has not received any notice, and has no reason to believe, 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.


 


(b)Section
4.13(b) of the Disclosure Schedules sets forth with respect to the Business (i) each supplier who is listed in the GridSense
SAP system (collectively, the “Material Suppliers”). Except as set forth in Section 4.13(b) of the Disclosure
Schedules, GridSense has not received any notice, and has no reason to believe, 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.


 




    	 	22	 



     

    


 


Section
4.14Insurance. Section
4.14 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 GridSense since January
1, 2010. Except as set forth on Section 4.14 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 GridSense 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) are provided by carriers
who are financially solvent; and (c) have not been subject to any lapse in coverage. None of GridSense 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. True and complete copies of the Insurance Policies have been made available to Buyer. 


 


Section
4.15Legal Proceedings; Governmental Orders.



 


(a)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. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any
such Action.


 


(b)there
are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the
Business. 


 


Section
4.16Compliance With Laws; Permits.



 


(a)Seller
have complied, and are now complying, with all Laws applicable to the conduct of the Business as currently conducted.


 


(b)All
Permits required for GridSense to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets
have been obtained by GridSense 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 4.16(b) of the Disclosure Schedules lists all current Permits issued
to GridSense 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 4.16(b) of the Disclosure Schedules.


 


Section
4.17Environmental Matters.



 


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


 




    	 	23	 



     

    


 


(b)GridSense
represents there are no Environmental Permits necessary for the conduct of the Business as currently conducted or the ownership,
lease, operation or use of the Purchased Assets.


 


(c)None
of the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by GridSense 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.


 


(d)There
has been no Release of Hazardous Materials in contravention of Environmental Law with respect to the Business or the Purchased
Assets, and GridSense have not received an Environmental Notice that any of the Business or the Purchased Assets (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, GridSense.


 


(e)There
are no active or abandoned aboveground or underground storage tanks owned or operated by GridSense in connection with the Business
or the Purchased Assets.


 


(f)There
are no off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by GridSense and any predecessors
in connection with the Business or the Purchased Assets as to which GridSense 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 GridSense 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 GridSense.


 


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


 


(h)There
are no: (i) 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 GridSense in connection with the Business which are in the possession or control of GridSense related to
compliance with Environmental Laws, Environmental Claims or an Environmental Notice or the Release of Hazardous Materials; and
(ii) 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).


 




    	 	24	 



     

    


 


(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.


 


Section
4.18Employee Benefit Matters.



 


(a)Section
4.18(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, welfare, fringe-benefit and other similar agreement, plan, policy,
program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded,
including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and
whether or not subject to ERISA, 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 4.18(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, 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; (vi) in the case
of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Form 5500, with schedules
and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the most
recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (ix) copies of material
notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Pension Benefit Guaranty Corporation
or other Governmental Authority relating to the Benefit Plan.


 




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(c)Each
Benefit Plan and related trust (other than any multiemployer plan within the meaning of Section 3(37) of ERISA (each a “Multiemployer
Plan”)) has been established, administered and maintained in accordance with its terms and in compliance with all applicable
Laws (including ERISA, the Code, and any applicable local Laws). Each Benefit Plan that is intended to be qualified under Section
401(a) of the Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination
letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal
Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan
and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code,
and 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 Section 4975 of the Code. 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 GAAP. 


 


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


 


(e)With
respect to each Benefit Plan (i) no such plan is a Multiemployer Plan, and (A) all contributions required to be paid by Seller
or its ERISA Affiliates have been timely paid to the applicable Multiemployer Plan, (B) neither Seller nor any ERISA Affiliate
has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all
such Multiemployer Plans at the Effective Time would not result in any material liability to Seller; (ii) no such plan is a “multiple
employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement”
(as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate
any such plan or to appoint a trustee for any such plan; (iv) no such plan is subject to the minimum funding standards of Section
412 of the Code or Title IV of ERISA, and none of the Purchased Assets is, or may reasonably be expected to become, the subject
of any lien arising under Section 302 of ERISA or Section 412(a) of the Code; and (v) no “reportable event,” as defined
in Section 4043 of ERISA, has occurred with respect to any such plan.


 


(f)other
than as required under Section 601 et. seq. of ERISA or other applicable Law, no Benefit Plan or other arrangement provides post-termination
or retiree welfare benefits to any individual for any reason.


 




    	 	26	 



     

    


 


(g)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 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 or collective bargaining agreement that would increase the annual expense of maintaining such
plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer,
employee, 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.


 


(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)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; (ii) accelerate the time of payment, funding or vesting,
or increase the amount of 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. 


 


Section
4.19Employment Matters.



 


(a)There
are no 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. As of the date hereof, all compensation,
including wages, commissions and bonuses 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 or bonuses.


 




    	 	27	 



     

    


 


(b)Seller
is not, and has not been for the past three 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 years, any Union representing or purporting to represent any employee of the Business, and
no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. 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 GridSense or any employees of the Business. GridSense has no duty to bargain
with any Union.


 


Section
4.20Taxes. 


 


(a)All
Tax Returns with respect to the Business required to be filed by GridSense 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 GridSense
(whether or not shown on any Tax Return) have been, or will be, timely paid.


 


(b)GridSense
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 GridSense.


 


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


 


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


 


(h)GridSense
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.


 




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


 


Section
4.21Full Disclosure. The
information and disclosures in the representations and warranties of Seller herein, as modified by the Disclosure Schedules, taken
as a whole, do not contain any untrue statement of a material fact, or omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances in which they are made, not misleading. 


 


ARTICLE
V

Representations and warranties
of buyer


 


Buyer
represents and warrants to Seller that the statements contained in this Article V are true and correct as of the date hereof.
Except for the representations and warranties contained in this Article V, neither Buyer nor any other Person has made or makes
any other express or implied representation or warranty, either written or oral, on behalf of Buyer.


 


Section
5.01Organization of Buyer.
Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the state of Indiana.


 


Section
5.02Authority of Buyer.
Buyer has full corporate power and authority to enter into this Agreement and the other Transaction 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 other Transaction 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 other Transaction 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 Transaction Document will constitute a legal and binding obligation of Buyer enforceable
against it in accordance with its terms.


 


Section
5.03No Conflicts; Consents.
The execution, delivery and performance by Buyer of this Agreement and the other Transaction 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) 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 other Transaction Documents and the consummation
of the transactions contemplated hereby and thereby.


 




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Section
5.04Sufficiency 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.


 


Section
5.05Independent Investigation.
Buyer has conducted its own independent investigation,
review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Business,
and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records and
other documents and data of Seller and the Business for such purpose. Buyer acknowledges and agrees that (a) in making its decision
to enter into this Agreement and the other Transaction Documents and to consummate the transactions contemplated hereby and thereby,
Buyer has relied solely upon its own investigation and the express representations and warranties of Seller set forth in Article
IV of this Agreement (including the related portions of the Disclosure Schedules), and (b) neither Seller nor any other Person
has made any representation or warranty as to Seller, the Business or this Agreement, except as expressly set forth in Article
IV of this Agreement (including the related portions of the Disclosure Schedules).


 


ARTICLE
VI

Covenants


 


Section
6.01Employees and Employee Benefits.



 


(a)Commencing
on the Closing Date, GridSense shall terminate all employees of the Business, and, at Buyer’s sole discretion, Buyer may
offer employment, on an “at will” basis, to any or all such employees. 


 


(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 GridSense at any time on or prior to the Closing Date and Seller shall pay all such amounts to all
entitled persons on or prior to the Closing Date.


 


(c)Seller
shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability
benefits 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.


 




    	 	30	 



     

    


 


(d)Each
employee of the Business 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.


 


Section
6.02Non-competition; Non-solicitation.



 


(a)For
a period of two years 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 GridSense 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 or more of any class of securities of such Person.


 


(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 6.01(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 6.02(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has
been terminated by Buyer or (ii) after 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 6.02 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).


 




    	 	31	 



     

    


 


(d)Seller
acknowledges that the restrictions contained in this Section 6.02 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 6.02 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 6.02 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.


 


Section
6.03Governmental 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, 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 other Transaction 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.


 


(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 the Disclosure Schedules. 


 


(c)Without
limiting the generality of the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties 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 other Transaction 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 other Transaction 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 other Transaction Document has been issued, to have such Governmental Order vacated or lifted.


 




    	 	32	 



     

    


 


(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 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 regarding 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 6.03 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 other
Transaction Documents; or (iii) any material modification or waiver of the terms and conditions of this Agreement.


 


Section
6.04Books 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 two 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 GridSense; and


 


(ii)upon
reasonable notice, afford the GridSense’s Representatives reasonable access (including the right to make, at GridSense’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 years following the Closing, Seller shall:


 




    	 	33	 



     

    


 


(i)retain
the books and records of GridSense 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 6.04 where such access would violate any Law.


 


Section
6.05Public Announcements.
Unless otherwise required by applicable Law (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 or delayed),
and the parties shall cooperate as to the timing and contents of any such announcement.


 


Section
6.06Transfer 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 other Transaction Documents (including any real property transfer
Tax and any other similar Tax) shall be borne and paid equally by Seller and Buyer 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).


 


Section
6.07Tax 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.


 


Section
6.08Further 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 other Transaction Documents.


 




    	 	34	 



     

    


 


ARTICLE
VII

Indemnification


 


Section
7.01Survival. 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 18 months from the Closing Date; provided, that
the representations and warranties in (i) Section 4.01, Section 4.02, Section 4.08, Section 5.01,
and Section 5.02 shall survive indefinitely, (ii) Section 4.16  shall survive for a period of five years after the
Closing, and (iii) Section 4.18 and Section 4.20 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, and
any claim not so asserted prior to the expiration date of the applicable survival period shall thereafter be barred.


 


Section
7.02Indemnification By Seller.
Subject to the other terms and conditions of this Article VII, 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 other Transaction
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 other
Transaction Documents or any certificate delivered by or on behalf of Seller pursuant to this Agreement;


 


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


 


(d)any
Third Party Claim based upon, resulting from or arising out of the business, operations, 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; including but not limited to, any sales made prior to the Closing Date.


 


Section
7.03Indemnification By Buyer.
Subject to the other terms and conditions of this Article VII, 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:


 




    	 	35	 



     

    


 


(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; or


 


(c)any
Assumed Liability.


 


Section
7.04Certain Limitations.
The indemnification provided for in Section 7.02 and Section 7.03 shall be subject to the following limitations:


 


(a)Seller
shall not be liable to the Buyer Indemnitees for indemnification under Section 7.02(a) until the aggregate amount of all
Losses in respect of indemnification under Section 7.02(a) exceeds $25,000 (the “Basket”), in which
event Seller shall only be required to pay or be liable for such Losses in excess of the Basket. The aggregate amount of all Losses
for which Seller shall be liable pursuant to Section 8.02(a) shall not exceed $750,000 (the “Cap”).


 


(b)Buyer
shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all
Losses in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event Buyer shall be required to
pay or be liable for such Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant
to Section 7.03(a) shall not exceed the Cap. 


 


(c)For
purposes of this Article VII, 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.


 


(d)Payments
by an Indemnifying Party pursuant to Section 7.02 or Section 7.03 in respect of any Loss shall be limited to the amount of any
liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar
payment actually received by the Indemnified Party in respect of any such claim, less any related costs and expenses, including
the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks
(it being agreed that neither party shall have any obligation to seek to recover any insurance proceeds prior to making a claim
under this Article VIII and that, promptly after the realization of any insurance proceeds, indemnity, contribution or other similar
payment, the Indemnified Party shall reimburse the Indemnifying Party for such reduction in Losses for which the Indemnified Party
was indemnified prior to the realization of reduction of such Losses).


 




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(e)Each
Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware
of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only
to the minimum extent necessary to remedy the breach that gives rise to such Loss.


 


Section
7.05Indemnification Procedures.
The party making a claim under this Article VII is referred to as the “Indemnified Party”, and the party
against whom such claims are asserted under this Article VII 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 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 or is prejudiced thereby. 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 such Indemnifying
Party shall not have the right to defend or direct the defense of any such Third Party Claim that 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 7.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute,
defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party.
The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it
subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall
be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party,
(A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the
Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot
be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of one counsel to the Indemnified Party,
unless the Third Party Claim is litigated in multiple jurisdictions, in which case the Indemnifying Party shall be liable for
the reasonable fees and expenses of local counsel in each jurisdiction for which the Indemnified Party reasonably determines such
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 7.05(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 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 7.05(b).
If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation
on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party
from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and
agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified
Party fails to consent to such firm offer within ten business 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 7.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party
(which consent shall not be unreasonably withheld).


 


(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 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 or is otherwise prejudiced thereby.
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 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-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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Section
7.06Payments. Once a Loss
is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article VII, the Indemnifying
Party shall satisfy its obligations within fifteen Business Days of such final, non-appealable adjudication by wire transfer of
immediately available funds; or to the extent of the Escrow Amount, through written authorization by the Seller to the Escrow
Agent to disburse such payment from the Escrow Amount. The parties hereto agree that should an Indemnifying Party not make full
payment of any such obligations within such fifteen Business Day period, any amount payable shall accrue interest from and including
the date of agreement of the Indemnifying Party or final, non-appealable adjudication to but excluding the date such payment has
been made at a rate per annum equal to five percent. Such interest shall be calculated daily on the basis of a 365-day year and
the actual number of days elapsed.


 


Section
7.07Tax 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.


 


Section
7.08Escrow Agent. 


 


(a)Generally.The
Escrow Agent shall hold the Escrow Amount in escrow in accordance with this Agreement.


 


(b)Distributions
from Escrow Fund. In the event that a Loss shall be agreed to by Seller and Escrow Agent shall have received written notice thereof
from Seller or a final non-appealable judgment shall have been rendered by the court having jurisdiction over the matters relating
to such claim by the Buyer for indemnification from the Sellers and the Escrow Agent shall have received, a copy thereof, subject
to the Basket, the Escrow Agent shall deliver to the Buyer from the Escrow Amount the amount agreed to or determined by the court
to be owed to Buyer under Article VII in accordance with the terms herein.


 


(c)Termination
of Escrow. If there are no indemnifiable pending Claims for against such amount, $50,000 of the Escrow Amount shall be disbursed
to Seller on January 7, 2017 and any balance shall be disbursed on July 7, 2017. 


 


(d)Dispute.
In the event that the Seller subject to indemnification obligation under such notice, gives the Escrow Agent written notice contesting
all or any portion of such Damages, the claim will be deemed a contested claim and the Escrow Agent is hereby authorized to withhold
such amount which is in dispute in accordance with Section 7.1.2 until such dispute is resolved.


 







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(e)Indemnity.
All parties hereto hereby indemnify and hold the Escrow Agent harmless from any and all liabilities, costs and expenses incurred
by the Escrow Agent by reason of any act or failure to act taken in accordance with this Agreement, except as such liability,
cost or expense shall result from the gross negligence, fraud or willful misconduct of the Escrow Agent. The Escrow Agent shall
have no duties or responsibilities except those expressly set forth in this Agreement. 


 


Section
7.09Exclusive Remedies.
Subject to Section 8.11, the parties acknowledge and agree that their sole and exclusive remedy with respect to any and
all claims (other than claims arising from actual and intentional fraud or criminal activity 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 VII. 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 VII. Nothing in this Section 7.09 shall limit
any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on
account of any party’s actual and intentional fraud or criminal activity.


 


ARTICLE
VIII


Miscellaneous


 


Section
8.01Expenses. 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, that Buyer shall be solely responsible for all fees, costs or expenses, if any,
incurred in connection with the recordation and/or registration of the Intellectual Property Registrations in Buyer’s name
or the name of any other Person in any intellectual property office throughout the world.


 


Section
8.02Notices. 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 (if shown below) 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 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 8.02):


 




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	If
    to Seller:	Acorn
                                         Energy, Inc.

        10451
        Mill Run Circle, Suite 400

        Owings
        Mills, MD 21117

        Attention:
        Jan Loeb, CEO

        jloeb@acornenergy.com

         

        With
        a copy to:

         

        Sheldon
        Krause, Esq.

        Eilenberg
        & Krause LLP

        11
        East 44th Street

        New
        York, New York 10017

        sk@eklawllp.com

         

	If
    to Buyer:	Franklin
                                         Fueling Systems, Inc.

        E-mail:
        FELegal@fele.com

        Attention:Corporate
        Counsel

        



 


 


Section
8.03Interpretation. 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.


 


Section
8.04Headings. The headings
in this Agreement are for reference only and shall not affect the interpretation of this Agreement.


 


Section
8.05Severability. 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. 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.


 




    	 	41	 



     

    


 


Section
8.06Entire Agreement. This
Agreement and the other Transaction 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 other Transaction 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.


 


Section
8.07Successors 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 or delayed. No assignment shall relieve the assigning party of any of
its obligations hereunder.


 


Section
8.08No 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.


 


Section
8.09Amendment and Modification; Waiver.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver
by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party
so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not
expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after
that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement
shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.


 


Section
8.10Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.



 


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


 




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(b)ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE
OF INDIANA IN EACH CASE LOCATED IN THE CITY OF FORT WAYNE AND COUNTY OF ALLEN, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL
TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING
BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


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


 


Section
8.11Specific Performance.
The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with
the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other
remedy to which they are entitled at law or in equity.


 


Section
8.12Counterparts. 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.


 


	 	GRIDSENSE, INC. 
	 	 	 
	 	By:	                
	 	Name:	 
	 	Title:	 
	 	 	 
	 	ACORN ENERGY, INC. 
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	FRANKLIN FUELING SYSTEMS, INC.


 



	 	By:	 
	 	Name:	 
	 	Title:	 


 




    	 	44