rcrt_ex101





 







EXHIBIT 10.1


 


 


  


ASSET
PURCHASE AGREEMENT


 

 


by
and among RECRUITER.COM GROUP, INC.,

 


PARRUT,
INC.,


 

 


and


 

 


THE
PRINCIPALS NAMED HEREIN


 


 


 


 


Dated
as of July 7, 2021


 


 


 


 




 








 





 


TABLE OF CONTENTS


 





	


ARTICLE I DEFINITIONS

	
 

	


1


	


ARTICLE II PURCHASE AND SALE

	
 

	


8


	

Section
2.01

	


Purchase and Sale of Assets

	


8


	

Section
2.02

	


Excluded Assets

	


9


	

Section
2.03

	


Assumed Liabilities

	


10


	

Section
2.04

	


Excluded Liabilities

	


10


	

Section
2.05

	


Purchase Price

	


10


	

Section
2.06

	


Reserved

	


11


	

Section
2.07

	


Non-Assignable Assets

	


11


	

Section
2.08

	


Earn-Out Consideration

	


12


	


ARTICLE III CLOSING

	
 

	


12


	

Section
3.01

	


Closing

	


13


	

Section
3.02

	


Closing Deliverables

	


13


	


ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER

	


14


	

Section
4.01

	


Organization and Authority of Seller

	


14


	

Section
4.02

	


No Conflicts; Consents

	


14


	

Section
4.03

	


Financial Statements

	


14


	

Section
4.04

	


Absence of Certain Changes, Events and Conditions

	


15


	

Section
4.05

	


Assigned Contracts

	


15


	

Section
4.06

	


Title to Tangible Personal Property

	


15


	

Section
4.07

	


Ownership and Sufficiency of Assets

	


15


	

Section
4.08

	


Intentionally Left Blank

	


15


	

Section
4.09

	


Intellectual Property

	


15


	

Section
4.10

	


Legal Proceedings; Governmental Orders

	


16


	

Section
4.11

	


Compliance with Laws; Permits

	


16


	

Section
4.12

	


Employee Benefit Programs

	


16


	

Section
4.13

	


Labor and Employment Matters

	


18


	

Section
4.14

	


[Intentionally Left Blank]

	


19


	

Section
4.15

	


Insurance

	


19


	

Section
4.16

	


Related Party Transactions

	


20


	

Section
4.17

	


Material Customers: Material Suppliers

	


20


	

Section
4.18

	


Taxes and Tax Returns

	


20


	

Section
4.19

	


No Undisclosed Liabilities

	


21


	

Section
4.20

	


Material Contracts

	


21


	

Section
4.21

	


Books and Records

	


22


	

Section
4.22

	


Brokers

	


22


	

Section
4.23

	


No Other Representations and Warranties

	


22


	


ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER

	


23


	

Section
5.01

	


Organization and Authority of Buyer

	


23


	

Section
5.02

	


No Conflicts; Consents

	


23


	

Section
5.03

	


Solvency; Sufficiency of Funds

	


23


	

Section
5.04

	


Legal Proceedings

	


23


	

Section
5.05

	


SEC Filings

	


23


	

Section
5.06

	


Brokers

	


24






 


 


 




 








 






 


	


ARTICLE VI COVENANTS

	
 

	


24


	

Section
6.01

	


Conduct of Business Prior to the Closing

	


24


	

Section
6.02

	


Access to Information

	


24


	

Section
6.03

	


Supplement to Disclosure Schedules

	


24


	

Section
6.04

	


Employees and Employee Benefits

	


24


	

Section
6.05

	


Confidentiality

	


25


	

Section
6.06

	


Non-Competition; Non-Solicitation

	


25


	

Section
6.07

	


Governmental Approvals and Consents

	


26


	

Section
6.08

	


Books and Records

	


27


	

Section
6.09

	


Closing Conditions

	


27


	

Section
6.10

	


Public Announcements

	


27


	

Section
6.11

	


Bulk Sales Laws

	


28


	

Section
6.12

	


Taxes

	


28


	

Section
6.13

	


Further Assurances

	


28


	


ARTICLE VII CONDITIONS TO CLOSING

	
 

	


28


	

Section
7.01

	


Conditions to Obligations of All Parties

	


28


	

Section
7.02

	


Conditions to Obligations of Buyer

	


29


	

Section
7.03

	


Conditions to Obligations of Seller

	


30


	


ARTICLE VIII INDEMNIFICATION

	
 

	


30


	

Section
8.01

	


Survival

	


30


	

Section
8.02

	


Indemnification by Selling Shareholders

	


31


	

Section
8.03

	


Indemnification by Buyer

	


31


	

Section
8.04

	


Certain Limitations

	


31


	

Section
8.05

	


Indemnification Procedures

	


32


	

Section
8.06

	


Tax Treatment of Indemnification Payments

	


32


	

Section
8.07

	


Exclusive Remedies

	


33


	

Section
8.08

	


Release of Indemnity Holdback Amount

	


33


	


ARTICLE IX MISCELLANEOUS

	
 

	


33


	

Section
9.01

	


Expenses

	


33


	

Section
9.02

	


Notices

	


33


	

Section
9.03

	


Interpretation

	


34


	

Section
9.04

	


Disclosure Schedules

	


34


	

Section
9.05

	


Headings

	


35


	

Section
9.06

	


Severability

	


35


	

Section
9.07

	


Entire Agreement

	


35


	

Section
9.08

	


Successors and Assigns

	


35


	

Section
9.09

	


No Third-Party Beneficiaries

	


35


	

Section
9.10

	


Amendment and Modification; Waiver

	


35


	

Section
9.11

	


Governing Law

	


35


	

Section
9.12

	


Specific Performance

	


36


	

Section
9.13

	


Counterparts

	


36


	

Section
9.14

	


Non-Recourse

	


36









 








 






 


	


EXHIBITS


	

Exhibit A –Employment Agreements


	

Exhibit B –Bill of Sale


	
 


	

Exhibit C –Assignment and Assumption
Agreement


	

Exhibit D –Registration Rights
Agreement


	

Exhibit E – Promissory Note


	

Exhibit F – SOW







 




 








 





 






ASSET PURCHASE AGREEMENT

 


This
Asset Purchase Agreement (this “Agreement”), dated as of July 7,
2021, is entered into among Recruiter.com Group, Inc. a Nevada
Corporation (“Buyer”), Parrut, Inc., a Delaware
corporation (the “Seller”), Tarek Pertew and
Christopher A. Johnson (each, a “Principal” and collectively, the
“Principals”).
Capitalized terms used and not otherwise defined herein have the
meanings specified or referred to in ARTICLE I.

 



RECITALS


 


WHEREAS, Seller has developed and is
operating an online job board marketplace software platform that
makes job listings and other career resources available for job
seekers and other professionals across industries (the
“Jobs Board
Technology”) and an online marketplace software
platform for sourcing and curated candidates for employers known as
“Finalist” (the “Finalist Technology”)
(collectively, the “Business”); and


 


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

 


WHEREAS, concurrently with the execution
and delivery of this Agreement, as an inducement for Buyer to enter
into this Agreement, each of the Key Employees (as defined below)
is entering into an employment agreement (the effectiveness of
which will be conditioned on the consummation of the transactions
contemplated by this Agreement on the Closing Date) with Buyer,
copies of which are attached hereto as Exhibit A (collectively, the
“Employment
Agreements”).

 


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

 


ARTICLE
I



DEFINITIONS

 


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

 


“Accounts Receivable” has the
meaning set forth in Section 2.01(b).


 


“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.

 


“Apportioned Tax Obligations” has
the meaning set forth in Section 6.12(b).

 


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


 


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



 




 

1








 





 


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

 


“Balance Sheet” has the meaning set
forth in Section
4.03.

 


“Balance Sheet Date” has the
meaning set forth in Section 4.03.


 


“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(k).


 


“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 New York City are
authorized or required by Law to be closed for
business.

 


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

 


“Buyer Closing Certificate” has the
meaning set forth in Section 7.03(d).


 


“Recruiter Restricted Common Stock”
has the meaning set forth in Section 2.05(b).

 


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

 


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


 


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


 


“Closing Payment” has the meaning
set forth in Section
2.05(b).

 


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


 


“Confidentiality
Agreement” means the Confidentiality Agreement, dated
as of January 5, 2021, between Buyer and Seller.

 


“Contracts”
means all legally binding written contracts, leases, mortgages,
licenses, sublicenses, purchase orders, loan agreements,
instruments, notes, commitments, undertakings, indentures and other
agreements, or any binding undertakings to enter into any of the
foregoing.

 


“Customer Data” means any and all
data submitted by, or compiled in relation to, customers of the
Business, including but not limited to personal data and/or other
identifying and profiling information, account activity, KYC and
due diligence information, anti-money laundering, customer
correspondence and any other data or information collected,
compiled or stored in relation to customers.


 


“Disclosed Assumed Liabilities” has
the meaning set forth in Section 2.03(c).

 


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


 


“Earn-Out Consideration” has the
meaning set forth in Section
2.08(a)(i).

 


“Earn-Out Revenue” has the meaning
set forth in Section
2.08(a)(i).


 




 

2








 





 


“Employee Program” has the meaning
set forth in Section
4.12(f)(i).





“Employees” means those Persons
employed by Seller’s professional employer organization who
work primarily for the Business immediately prior to the Closing
set forth on Section
6.04(a) of the Disclosure
Schedules.

 


“Employment Agreements” has the
meaning set forth in the RECITALS.





“Encumbrance” means any lien
(statutory or otherwise), pledge, mortgage, deed of trust, security
interest, charge, claim, attachment, hypothecation, option, right
of first refusal, right of first offer, easement, encroachment,
deed restriction, preferential arrangement, restrictive covenant or
change (including, without limitation, any conditional sale or
title retention agreement or lease in the nature thereof) or other
similar encumbrance or any agreement to file any of the
foregoing.





“Excluded Intellectual
Property Assets”
means all Intellectual Property that is owned by Seller and set
forth on Section 1.1 of
the Disclosure Schedules including all goodwill in the
same.

 


“Equity” means, with respect to any
Person, any and all shares, interests, participations, rights in or
other equivalents of such Person’s capital stock, partnership
interests, membership interests, limited liability company
interests or other equivalent equity or ownership interests and any
rights, warrants or options exchangeable or exercisable for or
convertible into such capital stock or other equity or ownership
interests (whether embedded in other securities or
not).

 


“ERISA Affiliate” has the
meaning set forth in Section
4.12(f)(ii).

 


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

 


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


 


“Finalist Technology” has the
meaning set forth in the RECITALS.


 


“Financial Statements” has the
meaning set forth in Section 4.03.

 


“Fraud” means, with respect to a
party, an actual and intentional misrepresentation of a material
existing fact with respect to the making of any representation or
warranty in ARTICLE
IV or Article
V, made by such party, (a) with respect to Seller, to
Seller’s actual knowledge, of its falsity and made for the
purpose of inducing the other party to act, and upon which the
other party justifiably relies with resulting Losses and (b) with
respect to Buyer, to Buyer’s actual knowledge, of its falsity
and made for the purpose of inducing the other party to act, and
upon which the other party justifiably relies with resulting
Losses.


 


“Fundamental Warranties” means the
representations and warranties in Section 4.01, Section 4.02,
Section 4.06, Section 4.07, Section 5.01 and Section
5.05.

 


“General Warranties” means the
representations and warranties in Article IV and Article V other than the
Fundamental Warranties and the Tax Warranties.

 


“Governmental Authority” means (i)
any international, multinational, national, federal, state, local
or foreign government or political subdivision thereof, or any
agency or instrumentality of such government or political
subdivision, including without limitation, any department, central
bank, court, minister, governor-in-counsel, cabinet commission,
board, bureau, agency, commissioner, tribunal or instrumentality
(whether domestic or foreign), (ii) any self-regulated organization
or other non-


 




 

3








 





 


governmental
regulatory authority or quasi-governmental authority (to the extent
that the rules, regulations or orders of such organization or
authority have the force of Law), or any arbitrator, court or
tribunal of competent jurisdiction, (iii) any stock exchange, and
(iv) any quasi-governmental or private body exercising any
regulatory, administrative, expropriation or taxing authority under
or for the account of any of the foregoing.

 


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

 


“Indemnified Party” has the meaning
set forth in Section
8.04.

 


“Indemnifying Party” has the
meaning set forth in Section 8.04.

 


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


 


“Intellectual Property” means any
and all of the following arising pursuant to the Laws of any
jurisdiction throughout the world: (a) registered and unregistered
trademarks, service marks, trade names, and similar indicia of
source of origin, all registrations and applications for
registration thereof, and the goodwill connected with the use of
and symbolized by the foregoing; (b) registered and unregistered
copyrights and all registrations and applications for registration
thereof, including without limitation, all compilations, databases
and computer programs, manuals and other documentation, and all
derivatives, translations adaptations and combinations of any of
the foregoing; (c) trade secrets and know-how; (d) patents and
patent applications; (e) internet domain name registrations; and
(f) other intellectual property and related proprietary
rights.

 


“Intellectual Property Agreements”
means all licenses, sublicenses and other agreements by or through
which other Persons grant Seller, or Seller grants any other
Persons, any exclusive or non-exclusive rights or interests in or
to any Intellectual Property that is used in the
Business.

 


“Intellectual
Property
Assets” means all Intellectual Property that is owned
by Seller and used in connection with the Business, including the
Intellectual Property Registrations and the Software Assets set
forth on Section 4.09(a)
of the Disclosure Schedules including all goodwill in the
same, but excluding the Excluded Intellectual
Property.

 


“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 private registrar in any jurisdiction, including
registered trademarks, domain names, and copyrights, issued and
reissued patents
and pending applications for any of the foregoing.

 


“Jobs Board Technology” has the
meaning set forth in the RECITALS.

 


“Key
Employees” means Christopher A.
Johnson and Tarek Pertew.

 


“Knowledge of Seller,”
“Seller’s
Knowledge,” or any other similar knowledge
qualification means the actual knowledge of Christopher A. Johnson
or Tarek Pertew, in each case after their reasonable
inquiry.

 


“Law” means any domestic or
foreign, federal provincial, state or local statute, law,
ordinance, regulation, rule, code, order, constitution, treaty,
common law, writ, injunction, judgment, award, administrative or
judicial decision or interpretation, decree, other requirement or
rule of law of any Governmental Authority.


 




 

4








 





 


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

 


“Losses” means losses, damages,
liabilities, deficiencies proceedings, judgments, interest, awards,
penalties, fines, costs or expenses of whatever kind, including
reasonable attorneys’ fees and, to the extent the prevailing
party with respect to the indemnification claim, the reasonable out
of pocket legal costs of enforcing any right to indemnification
hereunder; provided, however, that
“Losses” shall not include punitive, incidental,
consequential, special or indirect damages, including loss of
future profits, revenue or income, diminution in value or loss of
business reputation or opportunity relating to the breach or
alleged breach of this Agreement or any Transaction Documents
except to the extent actually paid to a third-party.

 


“Material Adverse Effect” means any
event, occurrence, fact, condition or change that is materially
adverse to (a) the business, results of operations, financial
condition or assets of the Business, taken as a whole, or (b) the
ability of Seller to consummate the transactions contemplated by
this Agreement or the other Transaction Documents; provided, however, that “Material
Adverse Effect” shall not include any event, occurrence,
fact, condition or change, directly or indirectly, arising out of
or attributable to:

 

(i) general economic or
political conditions; (ii) conditions generally affecting the
industries in which the Business operates; provided, that such events,
occurrences, facts, conditions or changes do not otherwise have a
disproportionate effect on Seller, taken as a whole; (iii) acts of
war (whether or not declared), armed hostilities or terrorism, or
the escalation or worsening thereof; (iv) any action required or
permitted by this Agreement or any action taken (or omitted to be
taken) with the written consent of or at the written request of
Buyer; (v) any changes in applicable Laws or accounting rules or
the enforcement, implementation or interpretation thereof after the
date hereof; provided, that
such changes do not otherwise have a disproportionate effect on
Seller, taken as a whole or Selling Shareholders; (vi) the
announcement, pendency or completion of the transactions
contemplated by this Agreement, or (vii) any failure by the
Business to meet any internal or published projections, forecasts
or revenue or earnings predictions (provided, that the underlying
causes of such failures (subject to the other provisions of this
definition) shall not be excluded).

 


“Material Contracts” has the
meaning set forth in Section 4.20.

 


“Material Customer” has the meaning
set forth in Section
4.17(a).

 


“Material Suppliers” has the
meaning set forth in Section 4.17(b).

 


“Multiemployer Plan” has the
meaning set forth in Section
4.12(f)(iv).

 


“Permits” means all permits,
licenses, franchises, approvals, variances, authorizations,
exemptions, registrations and consents required to be obtained from
Governmental Authorities.


 


“Permitted Encumbrances” means (a)
liens for Taxes not yet due and payable or being contested in good
faith by appropriate procedures and for which an adequate reserve
is provided in the Financial Statements; (b) mechanics’,
carriers’, workmen’s, repairmen’s or other like
liens arising or incurred in the ordinary course of business; (c)
easements, rights of way, zoning ordinances, restrictions and other
similar encumbrances affecting Real Property; (d) liens arising
under original purchase price conditional sales contracts and
equipment leases with third parties entered into in the ordinary
course of business; and (e) other imperfections of title or
Encumbrances, if any, that have not had, and would not reasonably
be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 




 

5








 





 


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

 


“Post-Closing Apportioned Period”
has the meaning set forth in Section 6.12(b).

 


“Pre-Closing Apportioned Period”
has the meaning set forth in Section 6.12(b).

 


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

 


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

 


“Registration Rights Agreement” has
the meaning set forth in Section
3.02(a)(v).

 


“SBA” means the United States Small
Business Administration. “SEC” means the United States
Securities and Exchange Commission

 


“SEC
Filings” means the Quarterly Reports on Form 10-Q,
Annual Reports on Form 10-K and Current Reports on Form 8-K made
available to the public through the EDGAR system.

 


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


 


“Seller Closing Certificate” has
the meaning set forth in Section 7.02(d).


 


“Seller Employee Program” has the
meaning set forth in Section 4.12(a).


 


“Selling Parties” means,
collectively, Seller and the Principals. “Seller Benefit Plans” has the
meaning set forth in Section 2.02(i).

 


“Software” means computer software,
programs, and databases in any form, including source code, object
code, operating systems and specifications, data, databases,
database management code, tools, developers kits, utilities,
graphical user interfaces, menus, artwork, images, icons, forms and
software engines, and all versions, updates, corrections,
enhancements and modifications thereof, and all related technical
and functional documentation, developer notes, comments, and
annotations.


 


“Software Assets” means all
Software that Seller has an ownership interest of any nature in and
is used in connection with the Business, including the Software set
forth on Section 4.09(a)
of the Disclosure Schedules.

 


“SOW” has the meaning set forth in
Section
3.02(a)(vi).

  


“Studio Business” means
Seller’s employer brand and video solutions business.
“Tangible Personal
Property” has the meaning set forth in Section 2.01(e).


 


“Taxes” means all federal, state,
local, foreign and other income, gross receipts, sales, use,
production, ad valorem, value added transfer, franchise,
alternative minimum, social security, occupation, net worth,
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


 




 

6








 





 


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 required to be filed with respect to
Taxes, including any schedule or attachment thereto, and including
any amendment thereof.

 


“Tax Warranties” means the
representations and warranties in Section 4.18.

 


“Transaction Documents” means this
Agreement, the Promissory Note, the Bill of Sale, the Assignment
and Assumption Agreement, the Employment Agreements, and the other
agreements, instruments and documents required or contemplated to
be delivered hereunder at the Closing.

 


“Transferred Employee” has the
meaning set forth in Section 6.04(a).

 


“Uncubed License” means an 18-month
royalty-free transition license with respect to the use of the
“Uncubed” mark for use in connection with the operation
of the Business granted by the Seller to the Buyer at the Closing.
The terms of the Uncubed License will be delivered by the Seller
within 30 days of Closing.


 


“WARN Act” has the meaning set
forth in Section
4.13(e).


 


“Websites” means the websites
listed on Section 1.2 of
the Disclosure Schedules.

 






ARTICLE II



PURCHASE AND SALE

 


Section
2.01 Purchase and Sale of
Assets. Subject to the terms and conditions set forth
herein, at the Closing, Seller shall sell, convey, assign, transfer
and deliver to Buyer free from any Encumbrance other than Permitted
Encumbrances, and Buyer shall purchase from Seller free from any
Encumbrance other than Permitted Encumbrances, all of
Seller’s legal and beneficial right, title and interest in,
to and under all of the tangible and intangible assets, properties
and rights of every kind and nature and wherever located (other
than the Excluded Assets), that relate to, or are used or held for
use in connection with, the Business (collectively, the
“Purchased
Assets”), with a view to Buyer carrying on the
Business as a going concern in succession to Seller including the
following:


 

(a) all accounts
receivable of the Business to the extent arising from the conduct
of the Business before the Closing (“Accounts
Receivable”);

 

(b) all Contracts set
forth on Section 2.01(d)
of the Disclosure Schedules, the Intellectual Property
Agreements set forth on Section 4.09(a) of the Disclosure
Schedules and the contracts of employment for each Employee
set forth on Section
4.12(a) of the Disclosure Schedule (collectively, the
“Assigned
Contracts”);

 

(c) all user and
personal profiles, resumes, and client, CRM, recruiter and other
databases, all brands, Website domains, software code, servers,
other hardware and all other Intellectual Property Assets,
including, without limitation, the right to sue and recover for
past, present or future infringement or other unauthorized use of
such Intellectual Property Assets;




 

7








 





 

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

 

(e) all prepaid
expenses, credits, advance payments, security deposits, charges,
sums and fees to the extent related to any Purchased
Assets;

 

(f)    
all telephone numbers, fax numbers, e-mail addresses related to or
used in the Business;





(g) all Permits owned,
held or used by Seller in connection with the Business to the
extent transferrable under applicable Law;

 

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

 

(i) originals or, where
not available, copies, of all books and records, including books of
account, ledgers and general, financial and accounting records,
machinery and equipment maintenance files, Customer Data, customer
purchasing histories, price lists, distribution lists, supplier
lists, production data, quality control records and procedures,
formulae, designs, specifications, drawings, product development,
data, manuals, handbooks, plans and instructions, customer
complaints and inquiry files, research and development files, sales
material and records, marketing and promotional surveys, material
and research and any other information relating to the operation,
management, administration or financial affairs of the Business,
including business plans, forecasts and information relating to
business development (collectively, “Books and Records”);

 

(j)   
all goodwill associated with any of the assets described in the
foregoing clauses; 

 

and 

 

(k)   
all other assets of Seller relating to the Business, other than the
Excluded Assets.


 


Section
2.02   Excluded
Assets. Notwithstanding anything in Section 2.01 to the contrary,
Buyer expressly understands and agrees that it is not purchasing or
acquiring, and Seller is not conveying, assigning, transferring or
delivering any other assets or properties of Seller or any of its
Affiliates (collectively, the “Excluded Assets”), and all such
other assets and properties shall be excluded from the Purchased
Assets. Excluded Assets include the following assets and properties
of Seller:

 

(a) all cash and cash
equivalents, securities (whether or not marketable), and negotiable
instruments of Seller;


 

(b) all Contracts that
are not Assigned Contracts (including all rights of Seller under
the Transaction Documents to which Seller is a party);


 

(c) the corporate
seals, organizational documents, minute books, stock books, Tax
Returns, books of account or other records having to do with the
corporate organization of Seller, all employee-related or employee
benefit-related files or records (other than personnel files of
Transferred Employees), and any other books and records that Seller
are prohibited from disclosing or transferring to Buyer under
applicable Law and is required by applicable Law to
retain;




 

8








 





 

(d) all insurance
policies of Seller and all rights to applicable claims and proceeds
thereunder, except to the extent the proceeds under any such policy
may be applied to cover the indemnity obligations of Seller
hereunder;


 

(e) all Tax assets
(including duty and Tax refunds and prepayments) of Seller or any
of their Affiliates;

 

(f) all rights to any
action, suit or claim of any nature available to or being pursued
by Seller, whether arising by way of counterclaim or
otherwise;


 

(g) all books, records,
and other materials prepared by, or emails and other correspondence
with, outside legal counsel, together with the related
attorney-client privilege and all attorney work product
protections;


 

(h) all books, records,
other materials, emails and other correspondence relating to
Seller’s or the Selling Shareholders’ preparation and
negotiation of this Agreement and the other Transaction Documents
and the evaluation and consummation of the transactions
contemplated hereby and thereby;

 

(i) the rights that
accrue or will accrue to Seller under this Agreement and the other
Transaction Documents; and

 

(j) all employee
benefit plans maintained by Seller or any Affiliates thereof (the
“Seller Benefit
Plans”); and

 

(k) the assets,
properties and rights, if any, specifically set forth on
Section 2.02(k) of
the Disclosure
Schedules.

 


Section
2.03   Assumed
Liabilities. Subject to the terms and conditions set forth
herein, Buyer shall assume and agree to pay, perform and discharge
when due any and all of the following (and only the following)
Liabilities of Seller arising out of or relating to the Business or
the Purchased Assets on or after the Closing, but specifically
excluding the Excluded Liabilities (collectively, the
“Assumed
Liabilities”):  


 


(a)   
all Liabilities arising under or relating to the Assigned Contracts
after the Closing Date; 



 




(b)   
all Liabilities in respect of the Transferred Employees after the
Closing Date;


 




(c) all Liabilities for
(i) Taxes relating to the Business, the Purchased Assets or the
Assumed Liabilities for any taxable period (or any portion thereof)
beginning after the Closing Date and

 




(ii)

Taxes for which
Buyer is liable pursuant to Section 6.12; and





 




(d) those Liabilities
of Seller, if any, specifically set forth on Section 2.03(c) of the
Disclosure
Schedules (the “Disclosed Assumed
Liabilities”).

 





Section
2.04 Excluded
Liabilities. Buyer shall not assume and shall not be
responsible to pay, perform or discharge any of the following
Liabilities of Seller (collectively, the “Excluded
Liabilities”):




 

9








 





 

(a) any Liabilities
arising out of or relating to Seller’s ownership or operation
of the Business and the Purchased Assets prior to the Closing
Date;

 

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


 

(c) any Liabilities for
(i) Taxes relating to the Business, the Purchased Assets or the
Assumed Liabilities for any taxable period ending on or prior to
the Closing Date and (ii) any other Taxes of Seller (other than
Taxes allocated to Buyer under Section 6.12) for any taxable
period;

 

(d) except as
specifically provided in Section 6.04, any Liabilities
of Seller relating to or arising out of (i) the employment, or
termination of employment, of any Employee prior to the
Closing,


(ii)
workers’ compensation claims of any Employee which relate to
events occurring prior to the Closing Date; and (iii) the Seller
Benefit Plans;

 

(e) 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 and thereby, including, without limitation, fees and
expenses of counsel, accountants, consultants, advisers and others;
and

 

(f)   
all Liabilities relating to Contracts of Seller that are not
Assigned Contracts; 


 

(g)   
all Liabilities of Seller other than the Assumed
Liabilities.

 


 

Section
2.05    Purchase Price.


 

(a) The purchase price
to be paid by Buyer for the Business and Purchased Assets shall be
(i) Three Million Five Hundred Thousand Hundred Dollars
($3,500,000) (the “Base
Purchase Price”), which shall be paid as set forth
below, plus (ii) the
Earn-Out Consideration in accordance with Section 2.08 below
(collectively, the “Purchase
Price”).

 

(b) Buyer shall deliver
to Seller on the Closing Date the following: (i) cash equal to Five
Hundred Thousand Dollars ($500,000) by wire transfer of immediately
available funds to an account identified in advance by Seller (the
“Closing Cash
Payment”), (ii) such number of shares of Buyer’s
common stock (the “Closing
Stock Payment”), obtained by dividing One Million and Two Hundred
and Fifty Thousand Dollars ($1,250,000) by the volume-weighted
average price of Buyer’s common stock (the
“Recruiter Restricted Common
Stock”) for the 5 consecutive trading days immediately
prior to the Closing Date (the “Per Share Stock Price”), and (iii)
a Promissory Note duly executed by Buyer in favor of Seller in the
aggregate principal amount of $1,750,000, a copy of which is
attached hereto as Exhibit
E (the “Promissory
Note”).

 



Section
2.06        



[Intentionally Omitted].






 

 



Section
2.07               



Non-Assignable
Assets.








(a) Notwithstanding
anything to the contrary in this Agreement, and subject to the
provisions of this Section
2.07, to the extent that the sale, assignment, transfer,
conveyance or delivery, or attempted sale, assignment, transfer,
conveyance or delivery, to Buyer of any Purchased Asset would
result in a violation of applicable Law, or would require the
consent, authorization, approval or waiver of a Person who is not a
party to this Agreement or an Affiliate of a party to this
Agreement (including any Governmental Authority), and such consent,
authorization, approval or waiver shall not have been obtained
prior to the Closing, this Agreement shall not constitute a sale,
assignment, transfer, conveyance or delivery,




 

10








 





 


or an
attempted sale, assignment, transfer, conveyance or delivery,
thereof; provided,
however, that,
subject to the satisfaction or waiver of the conditions contained
in ARTICLE VII, the
Closing shall occur notwithstanding the foregoing without any
adjustment to the Purchase Price on account thereof. Following the
Closing, Seller, Buyer shall use commercially reasonable efforts,
and shall reasonably cooperate with each other, to obtain any such
required consent, authorization, approval or waiver, or any
release, substitution or amendment required to novate all
liabilities and obligations under any and all Assigned Contracts or
other liabilities that constitute Assumed Liabilities or to obtain
in writing the unconditional release of all parties to such
arrangements, so that, in any case, Buyer shall be solely
responsible for such liabilities and obligations from and after the
Closing Date; provided, however, that neither Seller
nor Buyer shall be required to pay any consideration therefor. Once
such consent, authorization, approval, waiver, release,
substitution or amendment is obtained, Seller shall, upon request
of Buyer, sell, assign, transfer, convey and deliver to Buyer the
relevant Purchased Asset to which such consent, authorization,
approval, waiver, release, substitution or amendment relates for no
additional consideration. Applicable sales, transfer and other
similar Taxes in connection with such sale, assignment, transfer,
conveyance or license shall be paid by Buyer in accordance with
Section
6.12.

 

(b) To the extent that
any Purchased Asset or Assumed Liability cannot be transferred to
Buyer following the Closing pursuant to this Section 2.07, Buyer and Seller
shall use commercially reasonable efforts to enter into such
arrangements (such as subleasing, sublicensing or subcontracting)
to provide to the parties the economic and, to the extent permitted
under applicable Law, operational equivalent of the transfer of
such Purchased Asset or Assumed Liability to Buyer as of the
Closing and the performance by Buyer of its obligations with
respect thereto. Buyer shall, as agent or subcontractor for Seller
to pay, perform and discharge fully the liabilities and obligations
of Seller thereunder from and after the Closing Date. To the extent
permitted under applicable Law, Seller shall, at Buyer’s
expense, hold in trust for and pay to Buyer promptly upon receipt
thereof, such Purchased Asset and all income, proceeds and other
monies received by Seller to the extent related to such Purchased
Asset in connection with the arrangements under this Section 2.07. Seller shall be
permitted to set off against such amounts all direct reasonably and
properly incurred costs associated with the retention and
maintenance of such Purchased Assets. Notwithstanding anything
herein to the contrary, the provisions of this Section 2.07 shall not apply to
any consent or approval required under any antitrust, competition
or trade regulation Law, which consent or approval shall be
governed by Section
6.07.

 



Section
2.08       


Earn-Out
Consideration.





 

(a) Subject to and on
the terms of this Section 2.08, as additional consideration for the
Business and the Purchased Assets, Seller shall be entitled to, and
Buyer shall pay to Seller, earn-out consideration, if any,
determined and paid as follows:

 

(i) Seller shall be
entitled to earn-out consideration (“Earn-Out Consideration”) equal to
1.35 times the Earn-Out Revenue (as defined below) achieved during
the twelve- month period immediately following the Closing Date
(“Earn-Out
Period”) (such amount being referred to herein as the
“Earn-Out Revenue
Amount”). The maximum amount of the Earn-Out
Consideration shall be One Million Three Hundred and Fifty Thousand
Dollars ($1,350,000). For
the purposes of determining the Earn-Out Revenue Amount, the
“Earn-Out
Revenue” shall mean all revenue calculated on an
accrual basis derived or generated by Buyer or any of its
Affiliates from (x) community job boards (where such revenue is
substantially derived from the Intellectual Property Assets and/or
Software Assets, including Mediabistro), (y) Finalist revenue and
(z) any new offerings created by Buyer or any of its Affiliates
using any of the Intellectual Property Assets and/or Software
Assets.


 

(ii) Within
thirty (30) days following the expiration of the Earn-Out Period,
Buyer shall prepare and deliver or cause to be delivered to Seller
a calculation of the Earn-Out Revenue




 

11








 





 


and the
Earn-Out Revenue Amount with respect to the Earn-Out Period,
together with in reasonable detail the components and calculations
thereof, determined in accordance with the terms of this Section
2.08 (the “Earn-Out
Statement”).

 

(iii) On
or prior to the thirtieth (30th) day after
Seller’s receipt of the Earn-Out Statement (the
“Objection
Period”), Seller may give the Buyer a written notice
(a “Objection
Notice”) disputing any item set forth in the Earn-Out
Statement. The Objection Notice will set forth a description of the
basis (to the extent known) of each item of objection, along with
the amount in dispute (to the extent that Seller is able to
calculate such amount). Any items not disputed in a timely
Objection Notice shall be deemed to have been accepted by Seller.
The Buyer shall provide Seller and its representatives with full
access during customary business hours to those books and records
that are related to the calculation of the Earn-Out Revenue and
preparation of Earn-Out Statement and reasonably cooperate with
Seller in connection with its review thereof (including promptly
providing Seller with supporting documentation as reasonably
requested by Seller).

 

(iv) If
the Buyer and Seller are unable to agree on any aspect of the
calculation of the Earn-Out Revenue and the Earn-Out Statement
within 30 days of delivery of an Objection Notice, they shall be
entitled to refer their remaining differences to a regionally
recognized firm of independent public accountants as to which the
parties mutually agree, and which firm has not been engaged by
either party during the prior two-year period (the
“Arbiter”) to
resolve the dispute. The Buyer and Seller shall make readily
available to the Arbiter all relevant books and records and any
work papers (including those of the parties’ respective
accountants or financial advisors) relating to the calculation of
the Earn-Out Revenue and the Earn-Out Statement and all other items
reasonably requested by the Arbiter. The Arbiter shall consider
only those remaining items and amounts as to which Buyer and Seller
still disagree. The Arbiter shall not assign a value to any item
greater than the greatest value or less than the smallest value for
such item claimed by Seller or Buyer and shall be based solely on
presentations and supporting material provided by the parties and
not pursuant to any independent review. All costs and expenses
relating to the engagement of the Arbiter shall be borne by Buyer
unless the Arbiter’s determination results in no Earn- Out
Consideration being payable to Seller hereunder, in which case such
costs and expenses shall be borne by Seller.

 

(v) The Earn-Out
Consideration, if any, shall be paid to Seller, within ten (10)
days of the date the Earn-Out Revenue Amount is agreed or
determined in accordance with this Section 2.08, by Buyer
delivering to Seller the aggregate number of shares of Recruiter
Restricted Common Stock obtained by dividing the Earn-Out
Consideration (determined in accordance with this Section
2.08(a)(i) based on such agreed or finally determined Earn-Out
Revenue and Earn-Out Revenue Amount) by the volume-weighted average
price of the Recruiter Restricted Common Stock for the 20
consecutive trading days immediately prior to the expiration of the
Earn-Out Period.


 

(b) During the Earn-Out
Period, (i) Buyer shall operate the Business consistent with
Seller’s past practices, including, but not limited to,
maintaining a pricing model with respect to the Purchased Assets
substantially similar to (but not less than) the Seller’s
pricing model that is in place as of the Closing Date, and (ii)
Buyer shall not, directly or indirectly, take any actions in bad
faith that would have the purpose of avoiding the payment to Seller
of the Earn-Out Consideration hereunder. In the event that (i)
Buyer breaches the requirements set forth in this subsection, or
(ii) if Buyer terminates the employment of Christopher A. Johnson
or Tarek Pertew without cause during the twelve-month period
immediately following the Closing Date, or (iii) there is a sale of
any of the Purchased Assets during the Earn-Out Period, then the
maximum Earn-Out Consideration of $1,350,000 shall be immediately
due and payable to Seller in accordance with Section
2.08(a)(v).




 

12








 





 

(c) The right to any
Earn-Out Consideration is personal to Seller and is and shall
remain nontransferable for any reason other than by operation of
Law. Any attempted assignment, pledge, hypothecation, transfer or
other disposition of any right to the Earn-Out Consideration by
Seller (other than as set forth in the preceding sentence) shall be
null and void.


 


ARTICLE
III



CLOSING

 


Section
3.01 Closing.
Subject to the terms and conditions of this Agreement, the
consummation of the transactions contemplated by this Agreement
(the “Closing”)
shall take place remotely by exchange of documents and signatures
(or their electronic counterparts) on the second Business Day after
all of the conditions to Closing set forth in ARTICLE VII are either
satisfied or waived (other than conditions that, by their nature,
are to be satisfied on the Closing Date), or on such other date as
Seller and Buyer may mutually agree upon in writing. The date on
which the Closing is to occur is herein referred to as the
“Closing Date.”
The Closing shall be deemed effective as of 12:01 a.m., United
States Eastern Standard Time, on the Closing Date.


 



Section
3.02           



Closing
Deliverables.





 

 




(a)

At the Closing,
Seller shall deliver (or caused to be delivered) to Buyer
the





 


following:

 

(i) the Employment
Agreements, duly executed by the Key Employees, copies of which are
attached hereto as Exhibit
A;

 

(ii) a
bill of sale duly executed by Seller, a copy of which is attached
hereto as Exhibit B
(the “Bill of
Sale”), transferring the tangible personal property
included in the Purchased Assets to Buyer;

 

(iii) an
assignment and assumption agreement, duly executed by Buyer, a copy
of which is attached hereto as Exhibit C (the “Assignment and Assumption
Agreement”), effecting the assignment to and
assumption by Buyer of the Purchased Assets and the Assumed
Liabilities;


 




(iv)

the Seller Closing
Certificate;





 

(v) the Registration
Rights Agreement, duly executed by Seller, a copy of which is
attached hereto as Exhibit
D (the “Registration
Rights Agreement”);

 

(vi) the
Statement of Work, duly executed by the Buyer, a copy of which is
attached hereto as Exhibit
F (the “SOW”);

 




(vii)

the certificate of
the Secretary or Assistant Secretary of Seller required
by





 


Section 7.02(e);

 

(viii) 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 (or caused to be delivered) to Seller
the following:








 

13








 





 

(i) the Closing Cash
Payment by wire transfer of immediately available funds to the
accounts (and in the proportions) designated in writing by Seller
to Buyer;


 




(ii)   
the Registration Rights Agreement, duly executed by
Buyer;


 

(iii)   the
Employment Agreements, duly executed by Buyer;


 

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


 

(v)   the
Promissory Note, duly executed by Buyer;


 




(vi)   the
Registration Rights Agreement, duly executed by Buyer;


 

(vii)  the
Buyer Closing Certificate;


 

(viii) the SOW,
duly executed by Buyer;


 




(ix)  
the certificates of
the Secretary or Assistant Secretary of Buyer, as applicable,
required by Section
7.03(e); and

 




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





 


ARTICLE
IV



REPRESENTATIONS AND WARRANTIES OF SELLER

 


Except
as set forth in 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.

 


Section
4.01  Organization
and Authority of Seller. Seller is a corporation duly
organized, validly existing and in good standing under the Laws of
the State of Delaware. Seller has all necessary 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 and the Transaction Documents constitute
legal, valid and binding obligations of Seller enforceable against
Seller in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting
creditors’ rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding
at Law or in equity).

 


 


Section
4.02  No 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: result in a violation or
breach of any provision of the organizational documents of Seller;
result in a violation or breach of any provision of any Law or
Governmental Order applicable to Seller, the Business or the
Purchased Assets; except as set forth in Section 4.02 of the Disclosure
Schedules, require the consent, notice or other action by
any Person under, conflict with, result in a violation or breach
of, constitute a default under or result in the
acceleration




 

14








 





 


of any
Assigned Contract; notwithstanding any disclosure of an Assigned
Contract requiring consent to assign, as set forth in Section 4.02
of the Disclosure Schedule, no consent shall be required except as
to those Assigned Contracts where Buyer has required consent in
writing to be obtained prior to Closing as set forth on Schedule
4.02(A); (d) require from Seller any notice to any third-party or
result or give rise to any Encumbrance other than Permitted
Encumbrances; or (e) give rise to any material limitation or
restriction, or have a material adverse effect on the Business, or
the Knowledge of Seller, the ability of Buyer to operate the
Business following the Closing. 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, except as set forth
in Section 4.02 of the
Disclosure Schedules.

 


Section
4.03  Financial
Statements. Copies of the unaudited financial statements
consisting of the balance sheet of the Business as of March 31,
2021 in each of the years 2018, 2019 and 2020 and the related
statements of income and retained earnings for the years then ended
(the “Financial
Statements”) have been made available to Buyer. The
Financial Statements fairly present in all material respects 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. For the purposes of this Agreement, the
balance sheet of the Business as of May 31, 2021, is referred to
herein as the “Balance
Sheet” and the date thereof as the “Balance Sheet Date.” The Accounts
Receivable of Seller reflected on the Financial Statements, and all
Accounts Receivable arising subsequent to the Balance Sheet Date
are reflected properly on the books and records of the Business,
are valid receivables and not subject to any offsets, refunds,
adjustments, security interests (other than those, if any, held by
Seller’s lender, each of which, if any, shall be terminated
upon payoff by Seller as of Closing), Encumbrances other than
Permitted Encumbrances or counterclaims, are current and represent
valid obligations arising from bona-fide sales actually made or
sales or services actually performed in the ordinary course of
business.

 


Section
4.04  Absence of
Certain Changes, Events and Conditions. Except as expressly
contemplated by this Agreement or as set forth on Section 4.04 of the Disclosure
Schedules, from the Balance Sheet Date until the date of
this Agreement, Seller has operated the Business in the ordinary
course of business consistent with past practice in all material
respects and there has not been: (a) change, event, condition or
development that has had or would reasonably be expected to have a
Material Adverse Effect;

 

(b) any incurrence of
capital expenditures or any obligations or Liabilities in respect
thereof other than incurred in the ordinary course of business
consistent with past practice; (c) any sale, lease, license, or
other transfer, or creation or incurrence of any Lien on, any
assets, securities, properties or interests of the Business, other
than in the ordinary course of business consistent with past
practice; (d) any sale, disposition, transfer or license to any
Person of any rights to any Software Assets or any Intellectual
Property Rights (other than on a non-exclusive basis in the
ordinary course of business consistent with past practice); (e) any
material increase in the compensation of employees or new
employment contracts with existing employees; (f) any material
change in internal controls, methods, practices, policies or
procedures followed by Seller or any increase in bad debt reserves
for the Business or any revaluation of the Purchased
Assets.

 


 


Section
4.05 Assigned
Contracts. Except as set forth on Section 4.05 of the Disclosure
Schedules, Seller
is not in breach of or default under any Assigned
Contract.

 


 

 


Section
4.06 Title to Tangible
Personal Property. Except as set forth in Section 4.06 of the Disclosure Schedules,
Seller has good and valid title to, or a valid leasehold interest
in, all Tangible Personal Property included in the Purchased
Assets, free and clear of Encumbrances except for Permitted
Encumbrances.




 

15








 





 


Section
4.07 Ownership and
Sufficiency of Assets. Seller has good title to (or, in the
case of leased Purchased Assets, valid leasehold interests in) the
Purchased Assets, free and clear of all Encumbrances, other than
Permitted Encumbrances. The Purchased Assets, together with the
rights granted to Buyer under the Uncubed License, are sufficient
in all material respects for the continued conduct of the Business
after the Closing in substantially the same manner as conducted
immediately prior to the Closing and constitute all of the material
rights, property and assets necessary to conduct the Business as
currently conducted by Seller.


 


Section
4.08 Intentionally Left
Blank.


 

 


Section 4.09
Intellectual
Property.

 

(a) Section 4.09(a) of the Disclosure
Schedules lists (i) all Intellectual Property Registrations;
(ii) all Intellectual Property Agreements that are material to the
conduct of the Business (excluding shrink-wrap, click-wrap, or
other similar agreements for commercially available off-the-shelf
software); and (iii) all Software Assets. Except as set forth in
Section 4.09(a) of the
Disclosure Schedules, or as would not have a Material
Adverse Effect, Seller owns or has the right to use all
Intellectual Property Assets and the Intellectual Property licensed
to Seller under the Intellectual Property Agreements free from any
Encumbrance other than Permitted Encumbrances (other than
non-exclusive licenses granted in the ordinary course of business
consistent with past practice) and the Intellectual Property Assets
are not subject to any contract or other such agreement containing
any covenant or other provision that would in any way materially
limit or restrict the ability of Buyer to use, assert, enforce, or
otherwise exploit the Intellectual Property Assets anywhere in the
world.


 

(b) Except as set forth
in Section 4.09(b) of the
Disclosure Schedules, or as would not have a Material
Adverse Effect, to Seller’s Knowledge: (i) the conduct of the
Business as currently conducted does not infringe, misappropriate,
dilute or otherwise violate the Intellectual Property of any
Person; and (ii) no Person is infringing, misappropriating or
otherwise violating any Intellectual Property Assets.

 

(c) Notwithstanding
anything to the contrary in this Agreement, Section 4.09(b) constitutes the
sole representation and warranty of Seller under this Agreement
with respect to any actual or alleged infringement,
misappropriation or other violation by Seller of any Intellectual
Property of any other Person.

 

Section 4.10
Legal Proceedings;
Governmental Orders.


 

(a) Except as set forth
in Section 4.10(a) of the
Disclosure Schedules, there are no actions, suits, claims,
investigations or other legal proceedings pending or, to
Seller’s Knowledge, threatened against or by Seller relating
to or affecting the Business, the Purchased Assets or the Assumed
Liabilities.


 

(b) Except as set forth
in Section 4.10(b) of the
Disclosure Schedules, there are no outstanding Governmental
Orders and no unsatisfied judgments, penalties or awards against or
affecting the Business or the Purchased Assets.

 


Section
4.11 Compliance with Laws;
Permits. Except as set forth in Section 4.11(a) of the Disclosure Schedules,
Seller is and has at all times during the previous three (3) years
been in compliance in all material respects with all Laws
applicable to the conduct of the Business and the ownership and use
of the Purchased Assets. None of the representations and warranties
in this Section
4.11 shall be deemed to relate to employment matters (which
are governed by Section 4.13) or Tax matters




 

16








 





 


(which
are governed by Section 4.18). Seller own, hold or possess and are
in compliance in all material respects with all Permits which are
necessary for them to own, lease or possess, and operate the
Business as currently conducted, and there has occurred no material
default under any such Permit. No suspension or cancellation of any
Permit owned or held by Seller is pending or, to the Knowledge of
Seller, threatened. Each of the Permits is current, valid,
subsisting and is in full force and effect and, to the Knowledge of
Seller, no event has occurred and no circumstances exist, including
as a result of or with respect to, the consummation of the
transactions contemplated hereby, that would reasonably be expected
to result in the loss of any such Permit.





Section 4.12 
Employee Benefit
Programs.

 

(a) Section 4.12(a) of the Disclosure
Schedules sets forth a true, complete and correct list of
every Employee Program that is maintained by Seller or an ERISA
Affiliate of Seller with respect to which Seller has any current or
potential Liabilities (the “Seller Employee
Programs”).

 

(b) Each Seller
Employee Program that is intended to qualify under Section 401 (a)
of the Code may rely on an opinion letter issued by the IRS with
respect to a prototype plan adopted in accordance with the
requirements for such reliance, and, to the Knowledge of Seller, no
event or omission has occurred that would reasonably be expected to
cause any Seller Employee Program to lose such
qualification.

 

(c) Each Seller
Employee Program is and has been operated in material compliance
with Applicable Laws and regulations and is and has been
administered in all material respects in accordance with Applicable
Laws and regulations and with its terms.


 

(d) None of Seller nor
any ERISA Affiliates thereof has within the past six (6) years
maintained an Employee Program that is or was subject to Title IV
of ERISA, Section 412 of the Code, Section 302 of ERISA or is a
Multiemployer Plan, and none of Seller nor any ERISA Affiliates
thereof has incurred any liability under Title IV of ERISA that has
not been paid in full. None of the Seller Employee Programs
provides health care or any other non-pension benefits coverage to
any employees after their employment is terminated (other than as
required by part 6 of subtitle B of title I of ERISA or similar
state Law or benefits in the nature of severance pay pursuant to an
employment, severance or similar agreement that has been disclosed
to Buyer) or to former employees and Seller has no obligation to
provide such post termination benefits.

 

(e) With respect to
each Seller Employee Program, true, complete and correct copies of
the following documents (if applicable to Seller Employee Program)
have previously been delivered or made available to Buyer, (i) all
documents embodying or governing Seller Employee Program, and any
funding medium for the Seller Employee Program; (ii) the most
recent IRS opinion letter; (iii) the most recently filed IRS Form
5500; (iv) the most recent actuarial valuation report; (v) the most
recent summary plan description or plan document (or other
descriptions provided to employees) and all modifications thereto;
and (vi) all non-routine correspondence to and from any
Governmental Authority.


 




(f)

For purposes of
this Section
4.12:






 

(i) “Employee Program” means (A) an
employee benefit plan within the meaning of ERISA Section 3,
whether or not subject to ERISA; (B) equity purchase plans, bonus
or incentive award plans, severance pay plans, programs or
arrangements, deferred compensation arrangements or agreements,
employment agreements (excluding offer letters that do not provide
for severance benefits or bonus payments), executive compensation
plans, programs, agreements or arrangements, change in control
plans, programs or arrangements, supplemental income
arrangements,




 

17








 





 


vacation plans,
fringe benefits and all other employee benefit plans, agreements,
and arrangements not described in (A) above; and (C) plans or
arrangements providing compensation to employee and non- employee
managers.

 

(ii) “ERISA
Affiliate” means any entity that would have ever been
considered a single employer with Seller under Section 414 of the
Code, Section 4001(b) of ERISA or part of the same
“controlled group” as Seller for purposes of Section
302(d)(3) of ERISA.

 

(iii) An
entity “maintains” an Employee
Program if such entity sponsors, contributes to, or provides
benefits under or through such Employee Program, or has any
obligation to contribute to or provide benefits under or through
such Employee Program, or if such Employee Program provides
benefits to or otherwise covers current or former employees,
officers or managers of such entity (or their spouses, dependents,
or beneficiaries).

 

(iv) “Multiemployer
Plan” means an employee pension or welfare benefit
plan to which more than one unaffiliated employer contributes and
which is maintained pursuant to one or more collective bargaining
agreements.

 



Section
4.13        


Labor and Employment
Matters.





 

(a) Seller is and at
all times during the previous three (3) years has been in
compliance in all material respects with all federal and state Laws
respecting employment and employment practices, terms and
conditions of employment, workers’ compensation, occupational
safety and health, unemployment compensation, and wages and hours,
including, but not limited to Title VII of the Civil Rights Act of
1964, as amended, the Equal Pay Act of 1967, as amended, the Age
Discrimination in Employment Act of 1967, as amended, the Americans
with Disabilities Act, as amended, the Fair Labor Standards Act,
and the related rules and regulations adopted by those federal
agencies responsible for the administration of such Laws, and other
than payment for accrued and unused vacation leave required under
Applicable Law or normal accruals of wages during the payroll
cycle(s) in which the Closing Date falls, there are no arrearages
in the payment of any wages due to employees. To the Knowledge of
Seller, all individuals who have provided services to Seller during
the previous three (3) years have been correctly classified, as
applicable, as either an employee or an independent contractor.
There are not currently any audits or investigations pending or, to
the Knowledge of Seller, scheduled by any Governmental Authority
pertaining to the employment practices of Seller and any prior
audits during the previous three (3) years are set forth in
Section 4.13(a) of the
Disclosure Schedule.

 

(b) Seller is not a
party to, or otherwise bound by, any collective bargaining
agreement, contract, or other agreement or understanding with a
labor union or labor organization, and Seller has not been a party
to or otherwise bound by any such agreement, contract or
understanding at any time in the previous three (3) years. Seller
is not subject to (and has not been subject to in the previous
three

 


(3)
years) any charge, demand, petition, or representation proceeding
seeking to compel, require, or demand it to bargain with any labor
union or labor organization nor is there or has there been pending
or threatened any labor strike or lockout involving Seller at any
time in the previous three (3) years.

 

(c) Except as set forth
in Section 4.13(c) of the
Disclosure Schedule, all Employees are employed
at-will.

 

(d) To the Knowledge of
Seller, no Employee has any present intention to terminate his or
her employment and Seller has, as of the date hereof, no intention
to terminate or materially change the employment of any employee
(in each case, such term meaning permanent and temporary, full time
and part-time employees) or is a party to any confidentiality,
non-competition, proprietary rights or other such




 

18








 





 


agreement between
such employee and any person besides Seller that would be material
to the performance of such employee’s employment duties, or
the ability of Buyer to conduct the Business of Seller, nor has
Seller received any written notice or information concerning any
such prospective change with respect to such
employees.


 

(e) There has been no
“plant closing,” “business closing” or
“mass layoff” as defined in the Worker Adjustment
Retraining and Notification Act of 1988, as amended (the
“WARN Act”) or
any similar state, local or foreign Law or regulation affecting any
site of employment of Seller, or one or more- facilities or
operating units within any site of employment or facility of
Seller, and, during the 90 day period preceding the date hereof, no
current or former employee or consultant of Seller has suffered an
“employment loss” (as defined in the WARN Act) with
respect to Seller.

 


(f)           Section
4.13(f) of the Disclosure Schedule contains a complete and
accurate list of each current manager, officer and Employee of
Seller whether actively at work or not, and for each such Person
identifies his or her name, employee number, title, start date,
base compensation, bonus compensation and any other compensation
earned in each of 2019 and 2020, current base salary or wage rate,
commission eligibility and bonus arrangements (as applicable),
accrued and unused vacation leave, benefits, overtime entitlement,
location of employment, any professional license(s) held (as
applicable), status as full-time or part-time, and status as exempt
or non-exempt under the Fair Labor Standards Act. In addition,
Section 4.13(f) of the
Disclosure Schedule lists any Employee currently on leave of
absence, together with the type of leave, their expected date of
return to work, if known, and indicating whether the employee is in
receipt of disability benefits or workers’ compensation
benefits. To the extent that any Employee’s employment is
subject to a visa or work permit, such status and any applicable
date of

 


expiration is set
forth in Section 4.13(f)
of the Disclosure Schedule.

 

(g)  Section 4.13(g) of the
Disclosure Schedule contains a complete and accurate list of
each individual that is actively providing services primarily for
the Business as an independent contractor or consultant of Seller,
including the nature of the services, consulting fees, commissions
or other forms of compensation and the term of the agreement,
including start date and end date, if applicable.

 

(h) To the Knowledge of
Seller, Seller has at all times in the previous three (3) years
properly classified each of its Employees as exempt or non-exempt
for purposes of the Fair Labor Standards Act and state, local and
foreign wage and hour Laws. To the extent that Seller has treated
any service provider as an independent contractor rather than an
employee for the purpose of any Law at any time in the previous
three (3) years, to the Knowledge of Seller, Seller’s
classification of such service provider has been proper for
purposes of each Applicable Law, including without limitation the
Code and the Fair Labor Standards Act.

 

(i) Except as set forth
in Section 4.13(i) of the
Disclosure Schedule, no officer, manager, Employee,
independent contractor, agent or consultant of Seller who perform
services for the Business has any agreement or arrangement as to
(i) change of control, (ii) payment of any amount which is
triggered by, or expected to be triggered by, the transactions
contemplated hereby, (iii) retention payment,

 


(iv)
deferred compensation, (v) eligibility for any severance pay or
benefits in connection with any termination of employment by Seller
or the employee, or (vi) termination payment required to terminate
his or her employment or his or her service agreement.

 

(j) To the Knowledge of
Seller, no Employee or former employee of Seller who performs
services for the Business is or, during the past three (3) years,
has been (during his or her employment) an illegal or undocumented
worker. Seller has in its files a Form 1-9 that is validly and
properly completed in accordance with Applicable Law for each
employee of Seller with respect to whom such form is required under
Applicable Law. Seller has not received notice or other
communication from




 

19








 





 


any
Governmental Authority regarding any unresolved violation or
alleged violation of any Applicable Law relating to hiring,
recruiting, employing of (or continuing to employ) anyone who is
not legally authorized to work in the United States.

 

(k) There are no
outstanding assessments, penalties, fines, liens, charges,
surcharges, or other amounts due or owing pursuant to any
workers’ compensation legislation in respect of
Seller.

 

(l) There are no
workers’ compensation claims pending against Seller nor, to
the Knowledge of Seller, are there any facts that would give rise
to such a claim or claims not covered by workers’
compensation insurance.

 



Section
4.14     


[Intentionally Left
Blank]





 


Section
4.15 Insurance.
Section 4.15 of the
Disclosure Schedule contains a true, correct and complete
list of all policies of fire, liability, product liability,
workers’ compensation, health and other forms of insurance
presently in effect with respect to the Business (the
“Insurance
Policies”), including the named insured(s) and all
beneficiaries thereunder, true, correct and complete copies of
which have been delivered or made available by Seller to Buyer. All
Insurance Policies are valid, outstanding and, to the Knowledge of
Seller, enforceable policies. Seller has not been refused any
insurance with respect to any aspect of the Business. All premiums
payable under each such policy have been timely paid and no notice
of cancellation or termination has been received by Seller with
respect to any such policy.


 



Section
4.16        


Related Party
Transactions.





 


Except
as set forth in Section
4.16 of the Disclosure Schedule, there are no Contracts
under which Seller has any existing or future Liabilities between
Seller, on the one hand, and, on the other hand, any (a) executive
officer or manager of Seller or, to the Knowledge of Seller, any of
such executive officer’s or manager’s immediate family
members, or (b) owner of more than five percent (5%) of the voting
power of Seller’s equity interests.

 



Section
4.17           



Material Customers; Material
Suppliers.






 




(a)

Section 4.17(a) of the Disclosure
Schedule sets forth the name of each of the
tenb(10) largest
customers of Seller with respect to the Business by revenue for the
fiscal year ended December 31, 2020 and for the (3) months period
ended March 31, 2021 (each a “Material Customer”). Except as set
forth in Section 4.17(a)
of the Disclosure Schedule, since December 31, 2020, no
Material Customer has cancelled or otherwise terminated its
relationship with Seller or has materially decreased its usage or
purchase of the services or products of Seller. Except as set forth
in Section 4.17(a) of the
Disclosure Schedule, no Material Customer
has given Seller written notice of, and to the Knowledge of Seller
no Material Customer has, any plan or intention to terminate,
cancel or otherwise materially and adversely modify its
relationship with Seller or to decrease materially or limit its
usage, purchase or distribution of the services or products of
Seller; and






 




(b)

Section 4.17(b) of the Disclosure
Schedule sets forth the name of each of the ten
(10) largest
suppliers of Seller with respect to the Business by cost for the
fiscal years ended December 31, 2020 and for the three (3) month
period ended March 31, 2021 (the “Material Suppliers”). Except as
set forth on Section
4.17(b) of the Disclosure Schedule, no Material Supplier has
cancelled or otherwise terminated its relationship with Seller, nor
has it materially decreased its provision of services or products
to Seller. Except as set forth in Section 4.17(b) of the Disclosure
Schedule, the Material Supplier has not given Seller written
notice of, and to the Knowledge of Seller such Material Supplier
does not have, any








 

20








 





 


plan or
intention to terminate, cancel or otherwise materially and
adversely modify its relationship with Seller or to decrease
materially or limit its provision or distribution of services or
products to Seller.

 



Section
4.18       


Taxes and Tax
Returns.





 

(a) All material Tax
Returns with respect to the Business or Purchased Assets required
to have been filed by Seller have been timely filed (taking into
account any extension of time to file granted or
obtained).

 

(b) All material Taxes
with respect to the Business or Purchased Assets due and payable by
Seller, whether or not shown or required to be shown on any Tax
Returns, have been paid or will be timely paid and no such Taxes
are delinquent.


 

(c) Seller has, in
accordance with Applicable Law, invoiced, collected, withheld,
reported and remitted to the appropriate Taxing Authority (within
the time prescribed) all material: (i) sales, transfer, use,
customs, goods and services and other Taxes which are due and
payable by Seller; (ii) withholding, payroll or employment Taxes as
required by Applicable Law; and (iii) all non-resident withholding
Taxes as required by Applicable Law. Seller has completed and
timely filed all material Forms W-2, 1099 and 1042 required with
respect to any employee, independent contractor or other third
party, in each case, with respect to the Business.

 

(d) There are no
Encumbrances for Taxes against the Purchased Assets, other than
sales or transfer tax arising out of the sale and transfer pursuant
to this Agreement of the Purchased Assets.


 

(e) There are no
proceedings, investigations, audits or claims now pending, or
threatened in writing against Seller in respect of any Taxes
relating to the Business or the Purchased Assets and, to the
Knowledge of Seller, there are no other matters with any
Governmental Authority relating to such Taxes, which could
reasonably be expected to give rise to a material amount of Taxes
relating to the Business or the Purchased Assets or result in any
Encumbrance on any of the Purchased Assets (other than a Permitted
Encumbrance).

 

(f) Section 4.18 of the Disclosure
Schedules lists all of the jurisdictions in which Seller
file income or franchise Tax Returns and, to the Knowledge of
Seller, in the last five (5) years, no claim has been made by a
Governmental Authority in a jurisdiction where Seller do not file
Tax Returns relating to the Business or the Purchased Assets that
Seller are or may be subject to taxation by that jurisdiction in
respect of the Business or the Purchased Asset.




(g) The representations
and warranties set forth in this Section 4.18 are Seller’s
sole and exclusive representations and warranties regarding Tax
matters.

 


 


Section
4.19  No Undisclosed
Liabilities. Seller with respect to the Business has no
Liabilities, whether accrued, absolute, contingent, unliquidated or
otherwise, whether due or to become due, known or unknown,
regardless of when asserted, except Liabilities or obligations (a)
stated or adequately reserved against in the Financial Statements;
(b) for future performance under the Assigned Contracts; (c)
incurred in the ordinary course of business consistent with past
practice since the Balance Sheet Date; or (d) as set forth
Section 4.19 of the
Disclosure Schedules.

 


 

 


Section
4.20  Material
Contracts. Section
4.20 of the Disclosure Schedules sets forth a true, complete
and accurate list of each currently effective Contract with respect
to the Business to which Seller are a party or by which it is
bound, or by which any of its assets is bound, as of the date
hereof, which constitutes any of the following (collectively, the
“Material
Contracts”):




 

21








 





 




(a)

a partnership,
joint ventures, strategic alliance, or similar
Contract;





 

(b) a Contract
providing for the indemnification by Seller of any Person, other
than indemnities contained in agreements for the purchase, sale or
license of products or services in the ordinary course of
business;


 

(c) a Contract,
agreement, arrangement or obligation with another Person which
purports to limit in any respect (i) the ability of Seller to
solicit customers, employees or vendors, (ii) the location in which
the Business operates or is conducted, or (iii) the ability of
Seller or their respective successors to freely engage in any
Business, including without limitation, any Contract containing
non- competition, non-solicitation or exclusivity
provisions;

 

(d) any license
sublicense or other agreements under which any Person is granted
rights in the Intellectual Property Assets, other than commercial,
off-the-shelf software);

 

(e) a Contract that
contains royalty, dividend or similar arrangements based the
revenue or profits of Seller;


 




(f)

a Contract or other
agreement arrangement relating to borrowed money;






 

(g) a Contract or other
arrangement for the acquisition or disposition of any material
interest in, or any material amount of, property or assets of
Seller;

 




(h)

a Contract or other
arrangement containing most-favored-nations
provisions;






 

(i) a Contract or other
arrangement that involves a material customer of the Business or
involves capital expenditures in excess of $10,000 per
year;

 




(j)

a Contract or other
arrangement that contains settlement terms or a covenant not
to
sue;





 




(k)

a Contract or other
arrangement with an officer or director of Seller or an
Affiliate thereof;





 




(l)

a Contract that is
not terminable by Seller upon sixty (60) days’ notice;
and






 

(m) a Contract or other
arrangement under which Seller has made loans or advances to any
employee of the Business or officers or directors of
Seller.

 

(n) Seller has provided
or made available to Buyer with copies of all Material Contracts,
and all such Material Contracts are in full force and effect and
neither Seller nor, to the Knowledge of Seller, any other party
thereto, is in default under or breach of any such Material
Contract. Each Material Contract constitutes the legal, valid and
binding obligation of Seller enforceable against Seller in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting creditors’ rights generally and by
general principles of equity (regardless of whether enforcement is
sought in a proceeding at Law or in equity).

 


Section
4.21  Books and
Records. To the extent the Books and Records are required to
be delivered or made available to pursuant to the terms of this
Agreement, such Books and Records and other data and or information
relating to the Business are not recorded, stored, maintained,
operated or otherwise wholly or partly dependent upon Buyer or held
by any means (including any electronic,




 

22








 





 


mechanical or
photographic process, whether computerized or not) which will not
be available to Buyer in the ordinary course following the
Closing.

 


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

 


 


Section
4.23  No Other
Representations and Warranties. Except for the
representations and warranties contained in this ARTICLE IV (including the
related portions of the 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, including any representation or warranty as to the accuracy
or completeness of any information regarding the Business and the
Purchased Assets furnished or made available to Buyer and its
Representatives (including any information, documents or material
made available to Buyer, management presentations or in any other
form in expectation of the transactions contemplated hereby) or as
to the future revenue, profitability or success of the Business, or
any representation or warranty arising from statute or otherwise in
Law.

 


ARTICLE
V



REPRESENTATIONS AND WARRANTIES OF BUYER

 


Except
as set forth in the Disclosure Schedules, Buyer represent and
warrant to Seller that the statements contained in this
ARTICLE V are true
and correct as of the date hereof.

 


Section
5.01 Organization and
Authority of Buyer. Buyer is a corporation duly organized,
validly existing and in good standing under the Laws of Nevada.
Buyer has all necessary 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 and the Transaction Documents
constitute legal, valid and binding obligations of Buyer
enforceable against both Buyer in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting
creditors’ rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding
at Law or in equity).

 


Section
5.02 No 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: result in a violation or
breach of any provision of the certificate of incorporation or
by-laws Buyer; result in a violation or breach of any provision of
any Law, Governmental Authority or Governmental Order applicable to
Buyer; or, except as set forth in Section 5.02 of the Disclosure
Schedules, require the consent, notice or other action by
any Person or Governmental Authority under, conflict with, result
in a violation or breach of, constitute a default under or result
in the acceleration of any agreement to which Buyer is a party,
except in the cases of clauses (b) and (c), where the
violation, breach, conflict, default, acceleration or failure to
give notice would not have a material adverse effect on
Buyer’s ability to consummate the transactions contemplated
hereby. No consent, approval, Permit, Governmental Order,
declaration or filing with, or notice to, any Governmental
Authority is required by or with respect 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, except as set forth in
Section 5.02 of the
Disclosure Schedules and such




 

23








 





 


consents,
approvals, Permits, Governmental Orders, declarations, filings or
notices the failure of which to make or obtain would not have a
material adverse effect on Buyer’s ability to consummate the
transactions contemplated hereby and thereby.

 


Section
5.03 Solvency; Sufficiency
of Funds; Recruiter Restricted Common Stock. On the Closing
Date, Buyer will have available cash or other sources of
immediately available funds sufficient to pay or cause to be paid
the Closing Cash Payment. At the time of such issuance, Recruiter
Restricted Common Stock that as and when is being issued hereunder
to Seller as partial consideration for the Purchased Assets shall
be (a) duly authorized, validly issued, fully paid and
non-assessable and shall be issued in compliance in all material
respects with all applicable Laws and any preemptive or other
similar rights, whether by Law, Contract or otherwise and (b) free
and clear of all Encumbrances, options, and rights of other
parties.


 


Section
5.04 Legal
Proceedings. Except as set forth in Section 5.04 of the Disclosure
Schedules, there
are no actions, suits, claims, investigations or other legal
proceedings pending or, to Buyer’s knowledge, threatened
against Buyer or any Affiliate of Buyer that challenge or seek to
prevent, enjoin or otherwise delay the transactions contemplated by
this Agreement.


 


Section
5.05 SEC Filings.
Buyer’s SEC Filings, when they were filed with the SEC (or,
if any amendment with respect to any such document was filed, when
such amendment was filed), complied in all material respects with
the applicable requirements of the Securities Exchange Act of 1933,
as amended, and the rules and regulations thereunder and did not,
as of such date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.


 


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

 


Section
5.07 No Reliance.
Buyer is entering into this Agreement and consummating the
transactions contemplated hereby solely on the basis of its own
independent investigation of Seller and the Business and the
representations, warranties, terms and other conditions set forth
in this Agreement and the Transaction Documents.

 


 


ARTICLE
VI



COVENANTS

 


Section
6.01 Conduct of Business
Prior to the Closing. From the date hereof until the
Closing, except as otherwise provided in this Agreement or
consented to in writing by Buyer (which consent shall not be
unreasonably withheld, conditioned or delayed), Seller shall (a)
conduct the Business in the ordinary course of business consistent
with past practice; and (b) act in good faith and use commercially
reasonable efforts to maintain and preserve intact its current
Business organization, operations and franchise and to preserve the
rights, franchises, goodwill and relationships of Seller’s
Employees, customers, lenders, suppliers, regulators and others
having relationships with the Business. From the date hereof until
the Closing Date, except as consented to in writing by Buyer (which
consent shall not be unreasonably withheld, conditioned or
delayed), Seller shall not intentionally take any action that would
cause any of the changes, events or conditions described in
Section 4.04 to
occur. 


 


Section
6.02 Access to
Information. From the date hereof until the Closing, Seller
shall

 

(a)  afford Buyer and
its Representatives reasonable access to and the right to inspect
all of the Real Property,




 

24








 





 


properties, assets,
premises, Books and Records, Assigned Contracts and other documents
and data related to the Business; (b) furnish Buyer and its
Representatives with such financial, operating and other data and
information related to the Business as Buyer or any of its
Representatives may reasonably request; and (c) instruct the
Representatives of Seller to cooperate with Buyer in its
investigation of the Business; provided, however, that any such
investigation shall be conducted during normal business hours upon
reasonable advance notice to Seller, under the supervision of
Seller’s personnel and in such a manner as not to interfere
with the conduct of the Business or any other businesses of Seller.
All requests by Buyer for access pursuant to this Section 6.02 shall be submitted
or directed exclusively to Chris Johnson or such other individuals
as Seller may designate in writing from time to time.
Notwithstanding anything to the contrary in this Agreement, Seller
shall not be required to disclose any information to Buyer if such
disclosure would, in Seller’s sole discretion: (x) cause
significant competitive harm to Seller and its business, including
the Business, if the transactions contemplated by this Agreement
are not consummated; (y) jeopardize any attorney-client or other
privilege; or (z) contravene any applicable Law, fiduciary duty or
binding agreement entered into prior to the date of this Agreement.
Prior to the Closing, without the prior written consent of Seller,
which may be withheld for any reason, Buyer and shall not contact
any suppliers to, or customers of, the Business and Buyer shall
have no right to perform invasive or subsurface investigations of
the Real Property or the improvements thereon. Buyer shall, and
shall cause its Representatives to, abide by the terms of the
Confidentiality Agreement with respect to any access or information
provided pursuant to this Section 6.02.

 


Section
6.03  Supplement to
Disclosure Schedules. From time to time prior to the
Closing, Seller shall have the right (but not the obligation) to
supplement or amend the Disclosure Schedules hereto with respect to
any matter hereafter arising or of which Seller become aware after
the date hereof (each a “Schedule Supplement”). Any
disclosure in any such Schedule Supplement shall not be deemed to
have cured any inaccuracy in or breach of any representation or
warranty contained in this Agreement, including for purposes of the
indemnification or termination rights contained in this Agreement
or of determining whether or not the conditions set forth in
Section 7.02(a)
have been satisfied.

 

Section 6.04
Employees and Employee
Benefits.

 




(a) Buyer shall, or
shall cause an Affiliate of Buyer to, offer employment effective on
the Closing Date, to all Employees, including Employees who are
absent due to vacation, family leave, short-term disability or
other approved leave of absence (the Employees who accept such
employment and commence employment on the Closing Date, the
“Transferred
Employees”).


 




(b)  
During the period commencing on the Closing Date and ending on the
date that is 12’s termination of employment with Buyer or an
Affiliate of Buyer), Buyer shall, or shall cause an Affiliate of
Buyer to, provide each Transferred Employee with: (i) base salary
or hourly wages that are no less than the base salary or hourly
wages provided by Seller immediately prior to the Closing; (ii)
target bonus opportunities (excluding equity-based compensation)
that are no less than the target bonus opportunities (excluding
equity-based compensation), if any, provided by Seller immediately
prior to the Closing; (iii) retirement and welfare benefits that
are no less favorable in the aggregate than those provided by
Seller immediately prior to the Closing; and (iv) severance
benefits that are no less favorable than the practice, plan or
policy in effect for such Transferred Employee immediately prior to
the Closing.


 

(c) Buyer and Seller
intend that the transactions contemplated by this Agreement should
not constitute a separation, termination or severance of employment
of any Employee who accepts an employment offer by Buyer that is
consistent with the requirements of Section 6.04(b), including for
purposes of any Seller benefit plan that provides for separation,
termination or severance benefits, and that each such Employee will
have continuous employment immediately before and immediately after
the




 

25








 





 


Closing. Buyer and
Seller shall be liable and hold Seller harmless for: (i) any
statutory, common law, contractual or other severance with respect
to any Employee, other than an Employee who has received an offer
of employment by Buyer on terms and conditions consistent with
Section 6.04(b)
hereof and declines such offer; and (ii) any claims relating to the
employment of any Transferred Employee arising in connection with
or following the Closing.


 




(d) This Section 6.04 shall be binding
upon and inure solely to the benefit of each of the parties to this
Agreement, and nothing in this Section 6.04, express or
implied, shall confer upon any other Person any rights or remedies
of any nature whatsoever under or by reason of this Section 6.04. Nothing contained
herein, express or implied, shall be construed to establish, amend
or modify any benefit plan, program, agreement or arrangement. The
parties hereto acknowledge and agree that the terms set forth in
this Section 6.04
shall not create any right in any Transferred Employee or any other
Person to any continued employment with Buyer or any of its
Affiliates or compensation or benefits of any nature or kind
whatsoever.


 


Section
6.05 Confidentiality. Buyer
acknowledges and agrees that the Confidentiality Agreement remains
in full force and effect and, in addition, covenants and agrees to
keep confidential, in accordance with the provisions of the
Confidentiality Agreement, information provided to Buyer pursuant
to this Agreement. If this Agreement is, for any reason, terminated
prior to the Closing, the Confidentiality Agreement and the
provisions of this Section
6.05 shall nonetheless continue in full force and
effect.

 




Section 6.06
Non-Competition;
Non-Solicitation.

 

(a) For a period of
three (3) years following the Closing Date (the “Restricted Period”),
without the prior written consent of Buyer, each Principal shall
not, and shall not permit any of their Affiliates to, directly or
indirectly, (i) engage in or assist others in engaging in the
Restricted Business (as defined below); (ii) have an interest in
any Person that engages directly or indirectly in the Restricted
Business in any capacity, including as a partner, shareholder,
member, employee, principal, agent, trustee or consultant; or (iii)
cause, induce or encourage any material actual or prospective
client, customer, supplier or licensor of the Business (including
any existing or former client or customer of Seller and any Person
that becomes a client or customer of the Business after the
Closing), or any other Person who has a material business
relationship with the Business, to terminate or modify any such
actual or prospective relationship. As used herein,
“Restricted
Business” means the development of online job board
software platforms, software for attracting and screening pools of
candidates for employers, and on-demand recruiter marketplaces.
Notwithstanding the foregoing, each Principal may (i) engage in,
manage, own and operate the Studio Business (including for current
and prospective customers who are also current, past, or
prospective customers of Buyer or its Affiliates), (ii) perform and
engage in such consulting activities consistent with past practice,
(iii) own, directly or indirectly, solely as an investment,
securities of any Person traded on any national securities exchange
if such Selling Party is not a controlling Person of, or a member
of a group that controls, such Person and does not, directly or
indirectly, own 5% or more of any class of securities of such
Person, and (iv) conduct such activities on Buyer’s behalf as
an employee or consultant.


 




(b) For a period of two
(2) years following the Closing Date, each Principal shall not, and
shall not permit any of their respective Affiliates to, directly or
indirectly, hire or solicit any person who is offered employment by
Buyer pursuant to Section
6.04(a) or is or was employed in the Business during the
two-year period following the Closing Date, or encourage any such
employee to leave such employment or hire any such employee who has
left such employment, except pursuant to a general solicitation
that is not directed specifically to any such employees;
provided, that
nothing in this Section
6.06(b) shall prevent the Principals or any of their
respective Affiliates from hiring (i) any employee




 

26








 





 


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) The Principals
acknowledge that a breach or threatened breach of this Section 6.06 could give rise to
irreparable harm to Buyer, for which monetary damages would not be
an adequate remedy, and hereby agree that in the event of a breach
or a threatened breach by any Principal of 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
seek equitable relief, including a temporary restraining order, an
injunction, specific performance and any other relief that may be
available from a court of competent jurisdiction (without any
requirement to post bond).


 




(d) The Principals
acknowledge that the restrictions contained in this Section 6.06 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 6.06 should
ever be adjudicated to exceed the time, geographic, product or
service or other limitations permitted by applicable Law in any
jurisdiction, then any court is expressly empowered to reform such
covenant, and such covenant shall be deemed reformed, in such
jurisdiction to the maximum time, geographic, product or service or
other limitations permitted by applicable Law. The covenants
contained in this Section
6.06 and each provision hereof are severable and distinct
covenants and provisions. The invalidity or unenforceability of any
such covenant or provision as written shall not invalidate or
render unenforceable the remaining covenants or provisions hereof,
and any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such covenant or
provision in any other jurisdiction.


 






Section
6.07     


Governmental Approvals and
Consents.





 



(a) Each party hereto
shall, as promptly as possible, use its reasonable best efforts to
obtain, or cause to be obtained, all consents, authorizations,
orders and approvals from all Governmental Authorities that may be
or become necessary for its execution and delivery of this
Agreement and the performance of its obligations pursuant to this
Agreement and the 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 wilfully take any action
that will have the effect of delaying, impairing or impeding the
receipt of any required consents, authorizations, orders and
approvals.


 

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


 




(c) Seller and Buyer
shall use commercially reasonable efforts to give all notices to,
and obtain all consents from, all third parties that are described
in Section 4.02 and
Section 5.02 of
the




 

27








 





 


Disclosure Schedules;
provided,
however, that
Seller shall not be obligated to pay any consideration therefore to
any third party from whom consent or approval is
requested.


 




Section
6.08                                     
Books and
Records.

 



(a) In order to
facilitate the resolution of any claims made against or incurred by
Seller prior to the Closing, or for any other reasonable purpose,
for a period of three (3) years after the Closing, Buyer shall: (i)
retain the Books and Records (including personnel files) relating
to periods prior to the Closing in a manner reasonably consistent
with the prior practices of Seller; and (ii) upon reasonable
notice, afford the Seller’s Representatives reasonable access
(including the right to make, at Seller’s expense,
photocopies), during normal business hours, to such Books and
Records.

 

(b) In order to
facilitate the resolution of any claims made by or against or
incurred by Buyer after the Closing, or for any other reasonable
purpose, for a period of three (3) years after the Closing, Seller
shall: (i) retain the books and records (including personnel files)
of Seller that relate to the Business and its operations for
periods prior to the Closing; and (ii) upon reasonable notice,
afford 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 6.08 where
such access would violate any Law.

 


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

 


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

 


Section
6.11 Bulk Sales
Laws. The parties hereby waive compliance with the
provisions of any bulk sales, bulk transfer or similar Laws of any
jurisdiction that may otherwise be applicable with respect to the
sale of any or all of the Purchased Assets to Buyer.


 




Section 6.12
Taxes.


 

(a) Transfer Taxes. Buyer shall be
liable for all sales and transfer taxes, recording charges and
similar taxes, fees or charges imposed as a result of the
transactions contemplated by this Agreement, together with any
interest, penalties or additions thereon (collectively, the
“Transfer
Taxes”). Seller and Buyer shall be jointly responsible
for preparing and filing any Tax Returns with respect to Transfer
Taxes and shall cooperate each with the other in timely making all
filings, returns, reports and forms as necessary or appropriate to
comply with the provisions of all Applicable Laws in connection
with the payment of such Transfer Taxes, and shall cooperate in
good faith to minimize, to the fullest extent possible under such
Laws, the amount of any such Transfer Taxes payable in connection
therewith.


 

(b) Apportioned Taxes. Subject to
Section 6.12(a),
all real property Taxes, personal property Taxes and similar ad
valorem obligations levied with respect to the Purchased Assets for
a taxable




 

28








 





 


period
which includes (but does not end on) the Closing Date
(collectively, the “Apportioned Tax Obligations”)
shall be apportioned between Seller and Buyer as of the Closing
Date based on the relative number of days of such taxable period
ending on and including the Closing Date (the “Pre-Closing Apportioned Period”)
and the number of days of such taxable period beginning from the
day after the Closing Date through the end of such taxable period
(the “Post-Closing
Apportioned Period”), in each case, as compared to the
total number of days in such taxable period. Seller shall be liable
for the proportionate amount of Apportioned Tax Obligations that is
attributable to the Pre-Closing Apportioned Period. Buyer shall be
liable for the proportionate amount of the Apportioned Obligations
that is attributable to the Post-Closing Apportioned Period. In the
case of all other Taxes, the amount of such Taxes attributable to
the Pre-Closing Apportioned Period shall be determined as if a
separate return was filed for the period ending as of the end of
the day on the Closing Date using a “closing of the books
methodology,” and the remaining amount of the Taxes for such
period shall be attributable to the Post Closing Apportioned
Period, and Seller shall remit to Buyer, within ten (10) days of
Buyer’s request, payment for the proportionate amount of such
bill that is attributable to the Pre-Closing Apportioned Period.
Any Tax refunds, credits or overpayments attributable to Taxes
shall be apportioned between Buyer and Seller in accordance with
the apportionment provided in this Section 6.12 (a).


 





Section
6.13 Further
Assurances. Following the Closing, each of the parties
hereto shall, and shall cause their respective Affiliates to,
execute and deliver such additional documents, instruments,
conveyances and assurances and take such further actions and
provide further information or assistance as may be reasonably
required to carry out the provisions hereof; to give effect to the
transactions contemplated by this Agreement and the other
Transaction Documents and to allow Buyer to continue to operate the
Business as a going concern.


 





ARTICLE
VII



CONDITIONS TO CLOSING

 




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

 

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

 

(b) Seller shall have
received all consents, authorizations, orders and approvals from
the Governmental Authorities referred to in Section 4.02, and Buyer shall
have received all consents, authorizations, orders and approvals
from the Governmental Authorities referred to in Section 5.02, in each case, in
form and substance reasonably satisfactory to Buyer and Seller, and
no such consent, authorization, order and approval shall have been
revoked.

 


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

 

(a) The representations
and warranties of Seller contained in ARTICLE IV shall be true and
correct in all respects as of the Closing Date with the same effect
as though made at and as of such date (except those representations
and warranties that address matters only as of a specified date,
which




 

29








 





 


shall
be true and correct in all respects as of that specified date),
except where the failure of such representations and warranties to
be true and correct would not have a Material Adverse
Effect.




(b) Seller shall have
duly performed and complied in all material respects with all
agreements, covenants and conditions required by this Agreement and
each of the other Transaction Documents to be performed or complied
with by it prior to or on the Closing Date.

 

(c) Seller shall have
delivered to Buyer duly executed counterparts of each the
Transaction Document (other than this Agreement) to which Seller is
a Party and such other documents and deliveries set forth in
Section
3.02(a).


 

(d) Buyer shall have
received a certificate, dated the Closing Date and signed by a duly
authorized officer of Seller, that each of the conditions set forth
in Section 7.02(a)
and Section 7.02(b)
have been satisfied (the “Seller Closing
Certificate”).


 

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

 

(f)   
Since the date of this Agreement, there shall not have occurred any
Material

 


Adverse
Effect.

 


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

 

(a) The representations
and warranties of Buyer contained in ARTICLE V shall be true and
correct in all respects as of the Closing Date with the same effect
as though made at and as of such date (except those representations
and warranties that address matters only as of a specified date,
which shall be true and correct in all respects as of that
specified date), except where the failure of such representations
and warranties to be true and correct would not have a material
adverse effect on Buyer’s ability to consummate the
transactions contemplated hereby.

 

(b) Buyer shall have
duly performed and complied in all material respects with all
agreements, covenants and conditions required by this Agreement and
each of the other Transaction Documents to be performed or complied
with by it prior to or on the Closing Date.

 

(c) Buyer shall have
delivered to Seller duly executed copies of the Closing Cash
Payment, the Closing Stock Payment, the Promissory Note, duly
executed counterparts to the Transaction Documents (other than this
Agreement) to which Buyer is a party, and such other documents and
deliveries set forth in Section 3.02(b).

 

(d) Seller shall have
received a certificate, dated the Closing Date and signed by a duly
authorized officer of Buyer, that each of the conditions set forth
in Section 7.03(a)
and Section 7.03(b)
have been satisfied (the “Buyer Closing
Certificate”).


 

(e) Seller shall have
received a certificate of the Secretary or an Assistant Secretary
(or equivalent officer) of Buyer certifying that attached thereto
are true and complete copies of all




 

30








 





 


resolutions adopted
by the board of directors of Buyer authorizing the execution,
delivery and performance of this Agreement and the other
Transaction Documents and the consummation of the transactions
contemplated hereby and thereby, and that all such resolutions are
in full force and effect and are all the resolutions adopted in
connection with the transactions contemplated hereby and
thereby.


 


ARTICLE
VIII



INDEMNIFICATION


 


Section
8.01  Survival. Subject to the
limitations and other provisions of this Agreement, the
representations and warranties contained herein shall survive the
Closing and shall remain in full force and effect until the date
that is (a) in the case of General Warranties, eighteen (18) months
following the Closing Date, (b) in the case of Fundamental
Warranties, until the expiration of the relevant statute of
limitations, and (c) in the case of Tax Warranties, seven (7) years
following the Closing Date. None of the covenants or other
agreements contained in this Agreement shall survive the Closing
Date other than those that by their terms contemplate performance
after the Closing Date, and each such surviving covenant and
agreement shall survive the Closing for the period contemplated by
its terms. For the avoidance of doubt, the Parties hereby agree and
acknowledge that the survival period set forth in this Section 8.01 is a contractual
statute of limitations and any claim brought by any party pursuant
to this Article VIII must be brought or filed prior to the
expiration of the survival period. 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 such survival period and such claims
shall survive until finally resolved.

 


Section
8.02  Indemnification
by Seller. Subject to the other terms and conditions of this
ARTICLE VIII, the
Seller shall indemnify Buyer against, and shall hold Buyer harmless
from and against, any and all Losses incurred or sustained by, or
imposed upon, Buyer 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 the Seller
contained in this Agreement and the other Transaction Documents to
which Seller is a party;

 

(b) any material breach
or non-fulfilment of any covenant, agreement or obligation to be
performed by the Seller pursuant to this Agreement or other
Transaction Documents to which Seller is a party; and

 

(c)   
any Excluded Asset or any Excluded Liability.


 


Section
8.03 Indemnification by
Buyer. Subject to the other terms and conditions of this
ARTICLE VIII, Buyer
shall indemnify the Seller against, and shall hold the Seller
harmless from and against, any and all Losses incurred or sustained
by, or imposed upon, the Seller based upon, arising out of, with
respect to or by reason of:


 




(a) any inaccuracy in
or breach of any of the representations or warranties of Buyer
contained in this Agreement and the other Transaction Documents to
which Buyer is a party;


 




(b) any material breach
or non-fulfilment of any covenant, agreement or obligation to be
performed by Buyer pursuant to this Agreement or other Transaction
Document to which Seller is a party; any




 

31








 





 

(c)   
any Assumed Liability.


 





Section
8.04 Certain
Limitations. The party making a claim under this
ARTICLE VIII is
referred to as the “Indemnified Party”, and the party
against whom such claims are asserted under this ARTICLE VIII is referred to as
the “Indemnifying
Party”. The indemnification provided for in
Section
8.02  and Section 8.03 shall be subject
to the following limitations:




(a) The Indemnifying
Party shall not be liable to the Indemnified Party for
indemnification under Section 8.02(a) or Section 8.03(a), as the case
may be, until the aggregate amount of all Losses in respect of
indemnification under Section 8.02(a) or Section 8.03(a) exceeds $30,000
(the “Deductible”), in which event the
Indemnifying Party shall only be liable for Losses in excess of the
Deductible.


 




(b) Subject to
Section 8.04(c),
the aggregate amount of all Losses for which an Indemnifying Party
shall be liable pursuant to Section 8.02(a) or Section 8.03(a), as the case
may be, shall not exceed $300,000.


 




(c) Notwithstanding the
foregoing, the limitations set forth in Section 8.04(a) and
Section 8.04(b)
shall not apply to Losses based upon, arising out of, with respect
to or by reason of (i) any inaccuracy in or breach of any
Fundamental Warranties or Tax Warranties, with respect to which,
the aggregate liability of Seller shall not exceed the Base
Purchase Price (the “Cap”), or (ii) Fraud on
the part of a party hereto, with respect to which, the aggregate
liability of Seller shall not exceed the Base Purchase
Price.


 




(d) Payments by an
Indemnifying Party pursuant to Section 8.02 or Section 8.03 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 received or
reasonably expected to be received by the Indemnified Party in
respect of any such claim. The Indemnified Party shall use its
commercially reasonable efforts to recover under insurance policies
or indemnity, contribution or other similar agreements for any
Losses prior to seeking indemnification under this
Agreement.


 




(e) Payments by an
Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any
Loss shall be reduced by an amount equal to any Tax benefit
realized or reasonably expected to be realized as a result of such
Loss by the Indemnified Party.

 

(f) Each Indemnified
Party shall take and cause its Affiliates to use commercially
reasonable efforts to mitigate any Loss upon becoming aware of any
event or circumstance that would be reasonably expected to, or
does, give rise thereto.

  


Section
8.05 Indemnification
Procedures. Whenever any claim shall arise for
indemnification hereunder, the Indemnified Party shall promptly
provide written notice of such claim to the Indemnifying Party.
Such notice by the Indemnified Party shall: (a) describe the claim
in reasonable detail; (b) include copies of all material written
evidence thereof; and (c) indicate the estimated amount, if
reasonably practicable, of the Loss that has been or may be
sustained by the Indemnified Party. In connection with any claim
giving rise to indemnity hereunder resulting from or arising out of
any Action by a Person who is not a party to this Agreement, the
Indemnifying Party, at its sole cost and expense and upon written
notice to the Indemnified Party, may assume the defense of any such
Action with counsel reasonably satisfactory to the Indemnified
Party. The Indemnified Party shall be entitled to participate in
the defense of any such Action, with its counsel and at its own
cost and expense, subject to the Indemnifying Party’s right
to control the defense thereof. If the Indemnifying Party does not
assume the defense of any




 

32








 





 


such
Action, the Indemnified Party may, but shall not be obligated to,
defend against such Action in such manner as it may deem
appropriate after giving notice of it to the Indemnifying Party, on
such terms as the Indemnified Party may deem appropriate and no
action taken by the Indemnified Party in accordance with such
defense and settlement shall relieve the Indemnifying Party of its
indemnification obligations herein provided with respect to any
damages resulting therefrom. Seller and Buyer shall cooperate with
each other in all reasonable respects in connection with the
defense of any claim, including: (i) making available (subject to
the provisions of Section
6.05) records relating to such claim; and (ii) 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 claim. The Indemnifying Party
shall not settle any Action without the Indemnified Party’s
prior written consent (which consent shall not be unreasonably
withheld, delayed or conditioned).

 


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


 


Section
8.07 Exclusive
Remedies.

 
(a) Subject to
Section 2.07,
Section 6.06, and
Section 9.12, the
parties acknowledge and agree that their sole and exclusive remedy
with respect to any and all claims (other than claims arising from
Fraud on the part of a party hereto in connection with the
transactions contemplated by this Agreement) for any breach of any
representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this
Agreement, shall be pursuant to the indemnification provisions set
forth in this ARTICLE
VIII. In furtherance of the foregoing, except with respect
to Section 2.07,
Section 6.06, and
Section 9.12, each
party hereby waives, to the fullest extent permitted under Law, any
and all rights, claims and causes of action for any breach of any
representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this
Agreement it may have against the other parties hereto and their
Affiliates and each of their respective Representatives arising
under or based upon any Law, except pursuant to the indemnification
provisions set forth in this ARTICLE VIII. Nothing in this
Section 8.07 shall
limit any Person’s right to seek and obtain any equitable
relief to which any Person shall be entitled pursuant to
Section 9.12 or to
seek any remedy on account of any Fraud by any party
hereto.


 




(b) In furtherance of
the foregoing, Buyer and Recruiter acknowledge and agree that
set-off from the Promissory Note and, if applicable, the Earn-Out
Consideration shall be the sole and exclusive remedy of Buyer
following the Closing Date for Losses. In the event of a breach of
the Fundamental Warranties, Tax Warranties or Fraud by Seller or
its Affiliates, Buyer shall have recourse against Seller for any or
all such amounts payable pursuant to this Agreement to be first
satisfied by reducing the amounts in the Promissory Note or the
Indemnity Holdback Amount to the extent then available, and
thereafter to be satisfied from Selling Shareholders, jointly and
severally.


 





ARTICLE
IX



MISCELLANEOUS

 




Section
9.01 Expenses.
Except as otherwise expressly provided herein (including
Section 6.12
hereof), 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.




 

33








 





 


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


 




 



If to
Buyer:      


Recruiter.com
Group, Inc.





 



Attn:    



Evan Sohn Phone: (855) 931-1500



Email:

 




with a
copy (which shall not constitute notice) to:

 


Jacob
J., Frohman Esq.


Phone:


Email:

 


If to
Seller: 

Parrut, Inc.
[ADDRESS]






Attention:
Christopher A. Johnson Phone: 


Email:

 


 with a copy
(which shall not constitute notice) to:

 


Austin
Law PLLC


302A
West 12th
Street #261 New York, NY 10014


Attention: Nigel S.
Austin, Esq. Phone: 212-252-2012


Email:


 


Section
9.03 Interpretation. For purposes of
this Agreement, (a) the words “include,”
“includes” and “including” shall be deemed
to be followed by the words “without limitation”; (b)
the word “or” is not exclusive; and (c) the words
“herein,” “hereof,” “hereby,”
“hereto” and “hereunder” refer to this
Agreement as a whole. Unless the context otherwise requires,
references herein: (x) to Articles, Sections, 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




 

34








 





 


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
9.04 Disclosure
Schedules. All section headings in the Disclosure Schedules
correspond to the sections of this Agreement, but information
provided in any section of the Disclosure Schedules shall
constitute disclosure for purposes of each section of this
Agreement where such information is relevant. Unless the context
otherwise requires, all capitalized terms used in the Disclosure
Schedules shall have the respective meanings assigned to such terms
in this Agreement. Certain information set forth in the Disclosure
Schedules is included solely for informational purposes, and may
not be required to be disclosed pursuant to this Agreement. No
reference to or disclosure of any item or other matter in the
Disclosure Schedules shall be construed as an admission or
indication that such item or other matter is required to be
referred to or disclosed in the Disclosure Schedules. No disclosure
in the Disclosure Schedules relating to any possible breach or
violation of any agreement or Law shall be construed as an
admission or indication that any such breach or violation exists or
has actually occurred. The inclusion of any information in the
Disclosure Schedules shall not be deemed to be an admission or
acknowledgment by Seller that in and of itself, such information is
material to or outside the ordinary course of the business or is
required to be disclosed on the Disclosure Schedules. No disclosure
in the Disclosure Schedules shall be deemed to create any rights in
any third party.


 


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

 


Section
9.06 Severability.
If any term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of
this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. 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.


 


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

 


Section
9.09 No Third-Party
Beneficiaries. 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.




 

35








 





 


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


 

Section 9.11
Governing
Law.

 

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

 

(b) The parties hereto
agree that any dispute seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this
Agreement or any Transaction Document shall be brought in any
federal court located in the State of New Jersey or any New Jersey
state court, and each of the parties hereby irrevocably consents to
the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection that it may now
or hereafter have to the laying of the venue of any such proceeding
in any such court or that any such proceeding brought in any such
court has been brought in an inconvenient forum. Process in any
such proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court.
Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 10.02 shall be deemed
effective service of process on such party.

 

(c) Waiver of Jury Trial. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTION DOCUMENTS CONTEMPLATED
HEREBY.

 


 


Section
9.12 Specific
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.

 


 


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


 


Section
9.14 Non-Recourse.
This Agreement may only be enforced against, and any claim, action,
suit or other legal proceeding based upon, arising out of, or
related to this Agreement, or the negotiation, execution or
performance of this Agreement, may only be brought against the
Persons that are expressly named as parties hereto and then only
with respect to the specific obligations set forth herein with
respect to such party. No past, present or future director,
officer, employee, incorporator, manager, member, partner,
stockholder, Affiliate, agent, attorney or other Representative of
any party hereto or of any Affiliate of any party hereto, or any of
their successors or permitted assigns, shall have any liability
for


 




 

36








 





 


any
obligations or liabilities of any party hereto under this Agreement
or for any claim, action, suit or other legal proceeding based on,
in respect of or by reason of the transactions contemplated
hereby.

 


 


[Signatures
follow]


 


 


 


 


 


 


 




 

37








 





 


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.

 


	

 BUYER:

	

 

	

 SELLER:

	

 


	
 

	
 

	

 

	

 

	
 

	

 


	

 Recruiter.com
Group,
Inc.         

	

 

	

 Parrut,
Inc

	

 


	
 

	
	

 

	

 

	

	

 


	
 By:  


	
	

 

	

 By:  



	
	

 


	
 Name:  

	Evan H.
Sohn


	

 

	

 Name:  



	
Christopher A.
Johnson


	

 


	
 Title:  


	
CEO


	

 

	

 Title:  



	
CEO

	

 







 


 


 


 


 


	

	

PRINCIPALS:

	

 


	
	

 

	

 

	

 


	

	

	



	

 


	

 

	
	
Name 

	

 


	

 

	
	

Title 

	

 







 

 






 








 





 



Exhibit A

 


 

 



Employment Agreements

 


 

 



[See attached]


 


 


 


 




 








 





 



Exhibit B

 


 

 



Bill of Sale


 


 

 


 

 



[See attached]


 


 


 


 


 




 








 





 


Comments
6/2/2021


 

 


 



Exhibit C

 


 

 



Assignment and Assumption Agreement


 


 

 


 

 



[See attached]


 


 


 


 




 








 





 


Comments
6/2/2021


 


 

 


 



Exhibit D

 


 

 



Registration Rights Agreement


 


 


 

 



[See attached]


 


 


 


 


 




 








 






 


 


 

 


 



Exhibit E

 


 

 



Promissory Note

 


 

 



[See attached]


 


 


 


 


 


 




 








 





 



Exhibit F

 


 

 



Statement if WORK


 


 

 


 

 



[See attached]