Exhibit
10.1 


 





STOCK
PURCHASE AGREEMENT


 


Dated
as of March 13, 2019


 


By
and Among


 


FC
GLOBAL REALTY INCORPORATED


 


And


 


GADSDEN
GROWTH PROPERTIES, INC.


 




     


     


    

 


STOCK
PURCHASE AGREEMENT


TABLE
OF CONTENTS


 





	ARTICLE I.	 	PURCHASE
    AND ISSUANCE OF PARENT SECURITIES	2
	 	Section 1.1	 	Stock Issuance by Parent	2
	 	Section 1.2	 	Consideration by Gadsden	2
	 	Section 1.3	 	Certain Adjustments	2
	 	Section 1.4	 	Gadsden Specified Account	3
	ARTICLE II.	 	CLOSING	3
	 	Section 2.1	 	Closing	3
	 	Section 2.2	 	Deliveries	3
	 	Section 2.3	 	Provisions Regarding the OPCO Units	4
	 	Section 2.4	 	Tax Characterizations	4
	ARTICLE III.	 	REPRESENTATIONS AND WARRANTIES	4
	 	Section 3.1	 	Representations and Warranties of Gadsden	4
	 	Section 3.2	 	Representations and Warranties of Parent	19
	ARTICLE IV.	 	COVENANTS RELATING TO CONDUCT OF BUSINESS
    PENDING THE STOCK TRANSACTION	32
	 	Section 4.1	 	General Provisions	32
	 	Section 4.2	 	Specified Actions Not Permitted	32
	ARTICLE V.	 	ADDITIONAL COVENANTS	38
	 	Section 5.1	 	Preparation of Transaction 8K; Gadsden Shareholder
    Meeting	38
	 	Section 5.2	 	Access to Information; Confidentiality and Confidentiality
    Agreement	38
	 	Section 5.3	 	Reasonable Efforts	39
	 	Section 5.4	 	Transfer Taxes	40
	 	Section 5.5	 	Solicitation of Transactions	40
	 	Section 5.6	 	Board Actions	42
	 	Section 5.7	 	Public Announcements	43
	 	Section 5.8	 	Employee Arrangements	43
	 	Section 5.9	 	Indemnification; Directors’ and Officers’
    Insurance	43
	 	Section 5.10	 	Final Adjustment to Parent Shares issuable in
    Stock Transaction	44
	 	Section 5.11	 	Parent Board as of the Closing Date	47
	 	Section 5.12	 	Gadsden Board as of the Closing Date	47
	 	Section 5.13	 	Amendment to the Parent Charter	47
	 	Section 5.14	 	Payment of Accrued Parent Board Fees and Designation
    of Stock Transaction as Change of Control for Employment Agreement	47
	ARTICLE VI.	 	CONDITIONS PRECEDENT	48
	 	Section 6.1	 	Conditions to Each Party’s Obligation
    to Effect the Stock Transaction	48
	 	Section 6.2	 	Conditions to Obligations of Parent	48
	 	Section 6.3	 	Conditions to Obligations of Gadsden	49


 






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	ARTICLE VII.	 	TERMINATION, AMENDMENT AND WAIVER	50
	 	Section 7.1	 	Termination	50
	 	Section 7.2	 	Break-Up Fees and Expenses	51
	 	Section 7.3	 	Effect of Termination	52
	 	Section 7.4	 	Amendment	53
	 	Section 7.5	 	Extension; Waiver	53
	ARTICLE VIII.	 	SURVIVAL OF REPRESENTATIONS AND WARRANTIES,
    INDEMNIFICATION	53
	 	Section 8.1	 	Post-Closing Remedies	53
	 	Section 8.2	 	Mediation and Arbitration	54
	 	Section 8.3	 	Parent Post Transaction Committee Expenses	58
	ARTICLE IX.	 	GENERAL PROVISIONS	59
	 	Section 9.1	 	Notices	59
	 	Section 9.2	 	Interpretation	59
	 	Section 9.3	 	Specific Performance	60
	 	Section 9.4	 	Counterparts	60
	 	Section 9.5	 	Entire Agreement; No Third-Party Beneficiaries	60
	 	Section 9.6	 	Governing Law	60
	 	Section 9.7	 	Assignment	60
	 	Section 9.8	 	Severability	61
	 	Section 9.9	 	Exhibits; Disclosure Letter	61
	 	Section 9.10	 	Mutual Drafting	61
	 	Section 9.11	 	Jurisdiction; Venue	61
	 	Section 9.12	 	Waiver of Trial by Jury	62
	ARTICLE X.	 	CERTAIN DEFINITIONS	62
	 	Section 10.1	 	Specified Capitalized Terms	62
	 	Section 10.2	 	Index of Other Defined Terms	65


 






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STOCK
PURCHASE AGREEMENT


 


This
STOCK PURCHASE AGREEMENT is dated as of March 13, 2019 (this “Agreement”), by and among FC Global Realty Incorporated,
a Nevada corporation (“Parent”), and Gadsden Growth Properties, Inc., a Maryland corporation (“Gadsden”).


 


RECITALS


 


A.           On
November 8, 2018, Parent and Gadsden, and certain of their affiliates, entered into an Agreement and Plan of Merger (as amended,
the “Merger Agreement”).


 


B.            The
Merger Agreement contemplated the issuance of shares by Parent that would be registered under the Securities Act of 1933, as amended
(the “Securities Act”), when the registration statement, Registration No. 333-228304 (as amended, the “Registration
Statement”) for such offering was declared effective under the Securities Act.


 


C.            The
staff of the Securities and Exchange Commission (the “SEC”) was furloughed due to the U.S. Federal Government
shutdown which resulted, among other things, that the review and expected timing for the Registration Statement has been delayed
to the extent that the transaction regarding the acquisition of Parent by Gadsden requires additional amendments to the Registration
Statement and the timing for the consummation of the proposed merger under the Merger Agreement (the “Merger”)
is not certain.


 


D.            The
parties to the Merger Agreement are terminating the Merger Agreement and withdrawing the Registration Statement on the date hereof
concurrent with the parties entering into this Agreement.


 


E.            The
Board of Directors of Parent and the Board of Directors of Gadsden have each approved the acquisition by Parent of all of the
general partnership interests in OPCO (as defined below) and all of the Class A OPCO Units in exchange for the Parent Securities
(as defined below) pursuant to this Agreement, which will result in the change of control of Parent (the “Stock Transaction”),
subject only to the approval of the shareholders of Gadsden.


 


E.            Promptly
following the execution of this Agreement, Parent will file with the SEC a Current Report of Parent on Form 8-K (the “Transaction
8K”) which will provide a description of this Agreement, the Stock Transaction and other matters required to be provided
therein, a form of which has been reviewed by Gadsden.


 






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AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions
hereof, and intending to be legally bound hereby, each of Parent and Gadsden hereby agree as follows:




 


ARTICLE
I.   PURCHASE AND ISSUANCE OF PARENT SECURITIES.


 


Section
1.1            Stock Issuance by Parent.


 


(a)            Securities
Issued. Upon the terms and subject to the conditions of this Agreement, at the Closing on the Closing Date, Parent shall issue
the following securities (collectively, the “Parent Securities”):


 


(i)        708,485,395
shares of the common stock, par value 0.01 per share (“Parent Common Stock”), of which 278,178,750 shares of
Parent Common Stock (the “Holdback Shares”) will be held by Gadsden in a segregated account (the “Gadsden
Specified Account”) which shall be subject to release in accordance with  Section 5.10 and 430,306,644
shares of Parent Common Stock will not be subject to such Gadsden Specified Account.


 


(ii)       That
number of shares of the Parent Series A Stock that is equal to the number of Gadsden Series A Preferred Shares outstanding at
the Closing Time, which is expected to be 889,075 shares.


 


(iii)      That
number of shares of the Parent Series B Stock that is equal to the number of Gadsden Series B Preferred Shares outstanding at
the Closing Time, which is expected to be 11,788,994 shares.


 


(iv)     That
number of shares of the Parent Series C Stock that is equal to the number of Gadsden Series C Preferred Shares outstanding at
the Closing Time, which is expected to be 2,498,682 shares.


 


(b)            Status
of Securities. When issued, each of the Parent Securities shall be delivered to Gadsden and duly authorized, validly issued,
fully paid and nonassessable.


 


Section
1.2             Consideration by Gadsden.


 


In
consideration for the securities of Parent issued pursuant to Section 1.1(a), Gadsden shall transfer and assign to Parent, the following assets:


 


(i)              All
of the Class A limited partnership interests in Gadsden Growth Properties, L.P., a Delaware limited partnership (“OPCO”);


 


(ii)             All
of the general partnership interests in OPCO.


 


Section
1.3             Certain Adjustments.


 


If
Gadsden acquires any of the Scheduled Investments (as defined below) on or prior to May 20, 2019 or such other date as may be
agreed by Parent and the Parent Post Transaction Committee and/or if there is otherwise a difference between Contract NAV (as
defined below) and Final Gadsden NAV (as defined below), the adjustment provided in Section 5.10 shall be made.


 






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Section
1.4            Gadsden Specified Account.


 


The
Holdback Shares shall be held by Gadsden and shall not be transferred, assigned, hypothecated or otherwise alienated other than
in accordance with Section 5.10. The certificates representing the Holdback Shares shall have a legend endorsed thereon as follows:


 


The
shares of common stock represented by this certificate are subject to the terms and provisions of the Stock Purchase Agreement
dated as of March 13, 2019 (the “SPA”), by and among FC Global Realty Incorporated, a Nevada corporation, and Gadsden
Growth Properties, Inc. and may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of, in whole or
in part, other than in accordance with the SPA, including Section 5.10 of the SPA. A copy of the SPA is available from the corporation without
charge.”


 


The
Holdback Shares that are not to be returned to Parent for cancellation in accordance with Section 5.10 shall be released and held by Gadsden
and the restrictive legend endorsed on any certificate representing Holdback Shares shall be promptly removed by Parent upon the
request of any holder of such certificate without charge.


 


ARTICLE
II. CLOSING


 


Section
2.1             Closing.


 


The
closing of the Stock Transaction (the “Closing”) will take place at 10:00 a.m, local time, as promptly as practicable,
but in no event earlier than the later to occur of (a) March 31, 2019, or (b) the third (3rd) Business Day after the satisfaction
or waiver of all of the conditions (other than those conditions that by their nature are to be satisfied by actions taken at Closing,
but subject to the fulfillment or waiver of those conditions) set forth in Article VI (the “Closing Date”),
at the offices of Allegaert Berger & Vogel LLP, 111 Broadway, 20th Floor, New York, New York 10006, unless another date or
place is agreed to in writing by the parties. The date and time of the Closing is referred to in this Agreement as the “Closing
Time”.


 


Section
2.2             Deliveries.


 


(a)            At
the Closing, Parent shall deliver to Gadsden the following:


 


(i)              The
certificate or certificates representing each of the Parent Securities to be delivered to Gadsden;


 


(ii)             A
certificate that is duly signed by the Secretary of Parent certifying, solely in such capacity, to the attached articles of incorporation
and bylaws of Parent and such other matters as reasonably requested by Gadsden that are customary for such certificates;


 






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(iii)      Such
other documents, instruments and agreements that are a condition to the closing as provided in this Agreement to be delivered
by or on behalf of Parent.


 


(b)            At
the Closing, Gadsden shall deliver to Parent the following:


 


(i)              A
transfer and assignment of all of the general partnership interests in OPCO and all of the Class A OPCO Units from Gadsden to
Parent or its designated Subsidiary;


 


(ii)             A
certificate that is duly signed by the Secretary of Gadsden certifying, solely in such capacity, to the attached articles of incorporation
and bylaws of Gadsden and such other matters as reasonably requested by Parent that are customary for such certificates;


 


(iii)            Such
other documents, instruments and agreements that are a condition to the closing as provided in this Agreement to be delivered
by or on behalf of Gadsden.


 


Section
2.3             Provisions Regarding the OPCO Units.


 


At
the Closing, Gadsden shall cause the limited partnership agreement of OPCO (the “OPCO Agreement”) in effect
as of immediately prior to the Closing Time to be amended so that the shares of common stock that may be issued upon the exchange
of the Class B limited partnership interests in OPCO (the “Class B OPCO Units”) will refer to Parent Common
Stock (with the appropriate changes to reflect the Common Share Ratio) and to transfer the Class A limited partnership interests
in OPCO (the “Class A OPCO Units”) from Gadsden to Parent.


 


Section
2.4            Tax Characterizations.


 


Parent
and Gadsden intend that, for U.S. federal income tax purposes, the Stock Transaction will qualify as a tax-free “reorganization”
within the meaning of Section 368(a)(1)(A) of the Code.


 


		ARTICLE
                            III.	REPRESENTATIONS
AND WARRANTIES



 


Section
3.1            Representations and Warranties of Gadsden.


 


Except
as set forth in (i) the Confidential Private Placement Memorandum provided to Parent regarding the offering of the Gadsden Series
C Preferred Shares, and for information regarding Gadsden that is included in the Registration Statement (except in each case
for the risk factors section and any forward looking statements contained in the Management’s Discussion & Analysis)
(collectively, the “Covered Gadsden Disclosure”), or (ii) the disclosure letter delivered to Parent on the
date of this Agreement (the “Gadsden Disclosure Letter”), Gadsden represents and warrants to Parent as follows:


 


(a)            Organization,
Standing and Power of Gadsden. Gadsden is a corporation duly formed, validly existing and in good standing under the Laws
of the State of Maryland, and has all of the requisite corporate power, authority and all necessary government approvals or licenses
to own, lease, operate its properties and to carry on its business as now being conducted. Gadsden is duly qualified or licensed
to do business and is in good standing in each jurisdiction in which the nature of the business it is conducting, or the ownership,
operation or leasing of its properties or the management of properties for others makes such qualification or licensing necessary,
other than in such jurisdictions where the failure to be so qualified or licensed or in good standing would not, individually
or in the aggregate, constitute a Gadsden Material Adverse Effect. Each jurisdiction in which Gadsden is qualified or licensed
to do business under which it conducts business in any jurisdiction is identified in Section 3.1(a) of the Gadsden Disclosure Letter. Gadsden
has heretofore made available to Parent complete and correct copies of Gadsden’s Amended and Restated Articles of Incorporation
(the “Gadsden Charter”), and Gadsden’s Amended and Restated Bylaws, as amended through the date hereof
(the “Gadsden Bylaws”). The Gadsden Charter and the Gadsden Bylaws each are in full force and effect.


 






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(b)       Gadsden
Subsidiaries. Each Gadsden Subsidiary is duly organized, validly existing and, as applicable, in good standing under the Laws
of its jurisdiction of formation, and has all of the requisite corporate, partnership, limited liability company or other organizational
power and authority and all necessary government approvals and licenses to own, lease and operate its properties and to carry
on its business as now being conducted, except where the failure to have such approvals or licenses would not, individually or
in the aggregate, constitute a Gadsden Material Adverse Effect. Each Gadsden Subsidiary is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which the nature of its business or the ownership, operation or leasing of its
properties or the management of properties for others makes such qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, constitute a
Gadsden Material Adverse Effect. Section 3.1(b) of the Gadsden Disclosure Letter sets forth (A) each Gadsden Subsidiary and its respective
jurisdiction of formation, and (B) Gadsden’s ownership equity interest in each Gadsden Subsidiary. All outstanding equity
interests in each Gadsden Subsidiary have been duly authorized and are validly issued, fully paid and (except for general partnership
interests) nonassessable, or, in the case of Gadsden Subsidiaries other than as disclosed with respect to the joint ventures listed
on Section 3.1(b) of the Gadsden Disclosure Letter (collectively, the “Joint Ventures”), any purchase options, call options,
preemptive rights, rights of first refusal, subscriptions or any similar rights, and are owned by Gadsden and are so owned free
and clear of all pledges, adverse claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever
(collectively, “Liens”), except as would not, individually or in the aggregate, materially affect the ownership
or operation of such Subsidiary by Gadsden. Gadsden has heretofore made available to Parent complete and correct copies of the
charter, bylaws or other organizational documents of each of the Gadsden Subsidiaries, each as amended to the date hereof, and
each is in full force and effect.


 


(c)            Capital
Structure.


 


(i)              The
authorized shares of capital stock of Gadsden and the outstanding shares of such capital stock, as of the date of this Agreement,
are as provided in Section 3.1(c) of the Gadsden Disclosure Letter. The authorized units of partnership interest of OPCO regardless of class
or series (“OPCO Units”) and the outstanding OPCO Units are as provided in Section 3.1(c) of the Gadsden Disclosure Letter.


 






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(ii)             As
of the date of this Agreement, there are no outstanding options, warrants or other equity compensation awards (an “Award”)
of Gadsden to purchase Gadsden Common Shares or OPCO Units that are not included in the amounts stated in the outstanding amounts
in clause (i), above.


 


(iii)            As
of the date of this Agreement, there are no issued and outstanding or reserved for issuance that are not included in the amounts
stated in the outstanding amounts in clause (i) above, with respect to:


 


(A)       shares
or other equity securities of Gadsden or OPCO;


 


(B)       restricted
Gadsden Common Shares or OPCO Units or performance stock awards relating to the equity interests of Gadsden or OPCO;


 


(C)       securities
of Gadsden or any Gadsden Subsidiary convertible into or exchangeable for stock or other equity securities of Gadsden or any Gadsden
Subsidiary; and


 


(D)       subscriptions,
options, warrants, conversion rights, stock appreciation rights, “phantom” stock, stock units, calls, claims, rights
of first refusal, rights (including preemptive rights), commitments, arrangements or agreements (each, a “Convertible
Right”) to which Gadsden or any Gadsden Subsidiary is a party or by which it is bound in any case obligating Gadsden
or any Gadsden Subsidiary to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased,
redeemed or acquired, stock or other equity securities of Gadsden or of any Gadsden Subsidiary, or obligating Gadsden or any Gadsden
Subsidiary to grant, extend or enter into any such subscription, option, warrant, conversion right, stock appreciation right,
call, right, commitment, arrangement or agreement, except, in each case, as disclosed in Section 3.1(c) of the Gadsden Disclosure Letter.


 


(iv)           All
outstanding shares of Gadsden and OPCO Units are, and all shares or OPCO Units reserved for issuance will be, upon issuance in
accordance with the terms specified in the instruments or agreements pursuant to which they are issuable, duly authorized, validly
issued, fully paid and nonassessable and not subject to or issued in violation of, any preemptive right, purchase option, call
option, right of first refusal, subscription or any other similar right.


 


(v)            All
dividends or distributions on securities of Gadsden or OPCO or any material dividends or distributions on any securities of any
Gadsden Subsidiary (other than as disclosed in Section 3.1(c) of the Gadsden Disclosure Letter with respect to the Joint Ventures and any wholly
owned Gadsden Subsidiaries) that have been declared or authorized prior to the date of this Agreement have been paid in full,
other than the dividends that accrue under the Gadsden Series A Preferred Shares and the Gadsden Series C Preferred Shares.


 






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(vi)           As
of the date of this Agreement, there are no outstanding Class B OPCO Units other than as disclosed in Section 3.1(c) of the Gadsden Disclosure
Letter.


 


(vii)       Except
for this Agreement and the OPCO Agreement, there are not any:


 


(A)       shareholder
agreements, voting trusts, proxies or other agreements or understandings relating to the voting of any shares of Gadsden or OPCO
Units to which Gadsden or any Gadsden Subsidiary is a party or by which it is bound; or


 


(B)       agreements
or understandings relating to the sale or transfer (including agreements imposing transfer restrictions) of any shares of Gadsden,
or OPCO Units to which Gadsden or any Gadsden Subsidiary is a party or by which it is bound.


 


(viii)         No
holder of securities in Gadsden or any Gadsden Subsidiary has any right to have the offering or sale of such securities registered
by Gadsden or any Gadsden Subsidiary, as the case may be.


 


(d)           Authority;
No Violations; Consents and Approval.


 


(i)              The
Gadsden Board of Directors has approved and declared advisable the Stock Transaction and the other transactions contemplated by
this Agreement and has directed that the Stock Transaction be submitted for consideration at a special meeting of the holders
of Gadsden capital stock who are entitled to vote thereat (the “Gadsden Stockholder Meeting”). Gadsden has
all requisite corporate or partnership power and authority to enter into this Agreement and to consummate the transactions contemplated
hereby, subject to receipt of the Gadsden Stockholder Approval. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all necessary corporate, or other organizational action on
the part of Gadsden and each applicable Gadsden Subsidiary, subject to receipt of the Gadsden Stockholder Approval. This Agreement
has been duly executed and delivered by Gadsden, and subject, solely to receipt of the Gadsden Stockholder Approval, and assuming
due execution and delivery by Parent, constitutes legal, valid and binding obligations of Gadsden, enforceable against Gadsden
in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
and other Laws of general applicability relating to or affecting creditors’ rights and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).


 






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(ii)            Subject
to receipt of the Gadsden Stockholder Approval, the execution and delivery of this Agreement by Gadsden does not, and the consummation
of the transactions contemplated hereby, and compliance with the provisions hereof, will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation
or acceleration of any material obligation under, require the consent or approval of any third party under, any provision of


 


(A)       the
Gadsden Charter or the Gadsden Bylaws or any provision of the comparable charter or organizational documents of any of the Gadsden
Subsidiaries,


 


(B)       any
loan or credit agreement or note, or any bond, mortgage, indenture, joint venture, lease, contract or other agreement, instrument,
permit, concession, franchise or license applicable to Gadsden or any of the Gadsden Subsidiaries, or to which their respective
properties or assets are bound or any guarantee by Gadsden or any of the Gadsden Subsidiaries of any of the foregoing, or


 


(C)       assuming
the consents, approvals, authorizations or permits and filings or notifications referred to in Section 3.1(d)(iii) are duly and timely obtained
or made and the Gadsden Stockholder Approval has been obtained, any Law or Order applicable to or binding upon Gadsden or any
of the Gadsden Subsidiaries, or any of their respective properties or assets, other than as may arise in connection with the financing
of the transactions contemplated by this Agreement, except in the case of clauses (B) and (C), any of the foregoing that, individually
or in the aggregate, would not constitute a Gadsden Material Adverse Effect.


 


(iii)       No
consent, approval, Order or authorization of, or registration, declaration or filing with, notice to or permit from, any Governmental
Entity, is required by or on behalf of Gadsden or any of the Gadsden Subsidiaries in connection with the execution and delivery
of this Agreement by Gadsden or the consummation by Gadsden of the transactions contemplated by this Agreement, except for any
such other consent, approval, Order, authorization, registration, declaration, filing or permit that the failure to obtain or
make, individually or in the aggregate, would not reasonably be expected to materially impair or delay the ability of any of Gadsden
or OPCO to perform its obligations hereunder or prevent the consummation by them of any of the transactions contemplated hereby.


 


(e)            Disclosure
Documents; Financial Statements.


 


(i)              Gadsden
has made available to Parent, a true and complete copy of each solicitation document provided to investors in connection with
its issuance of the Gadsden Series C Preferred Shares.


 


(ii)             Neither
Gadsden nor any Gadsden Subsidiary has any requirement to file with SEC any registration statement under the Securities, or any
periodic or other reports under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other
than such statements in connection with Regulation D promulgated under the Securities Act), and the rules and regulations of the
SEC thereunder).


 






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(iii)            The
consolidated financial statements of Gadsden (including the notes thereto) provided by Gadsden to Parent (including the audited
consolidated balance sheet of Gadsden as of December 31, 2017 (the “Gadsden Balance Sheet”) and the unaudited
consolidated statements of income for the nine months ended September 30, 2018) complied as to form in all material respects with
the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were prepared
in accordance with accounting principles generally accepted in the U.S., as in effect at such time (“GAAP”)
applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto, or, in the case of
the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present, in accordance with applicable
requirements of GAAP and the applicable rules and regulations of the SEC (subject, in the case of the unaudited statements, to
normal, recurring adjustments, none of which are material), in each case, as in effect at such time, the assets, liabilities and
the consolidated financial position of Gadsden and the Gadsden Subsidiaries, taken as a whole, as of their respective dates and
the consolidated results of operations and cash flows of Gadsden and the Gadsden Subsidiaries taken as a whole, for the periods
presented therein. Each of Gadsden and OPCO is in compliance in all material respects with the applicable provisions thereof and
the rules and regulations promulgated under Sarbanes-Oxley Act of 2002.


 


(iv)           As
of the date of the Amendment No. 2 to the Registration Statement filed on January 30, 2019, solely with respect to Gadsden and
its subsidiaries, such Registration Statement did not contain any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading.


 


(f)             Absence
of Certain Changes or Events. Since the date of the Gadsden Balance Sheet, each of Gadsden and the Gadsden Subsidiaries have
conducted their business (x) only in the ordinary course consistent with past practice, (y) or engaged transactions related to
the Merger, including the issuance to Parent of 1,000 Series A Preferred Units of Gadsden Roseville, LLC, a Delaware limited liability
company and Subsidiary of Gadsden (“Roseville”), for a purchase price of $350,000 in accordance with an Amended
and Restated Limited Liability Company Agreement of Roseville that was entered into among Roseville, Gadsden Realty Investments
I, LLC, a wholly owned subsidiary of Gadsden, and Parent, and (z) and there has not been:


 


(i)             a
Gadsden Material Adverse Effect;


 


(ii)            any
declaration, setting aside for payment or payment of any dividend or other distribution (whether in cash, stock or property) with
respect to any of the Gadsden Common Shares other than as described in Section 3.1(f) of the Gadsden Disclosure Letter;


 


(iii)           any
amendment of any material term of any outstanding security of Gadsden or any Gadsden Subsidiary;


 






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(iv)           any
repurchase, redemption or other acquisition by Gadsden or any Gadsden Subsidiary of any outstanding shares, stock or other securities
of, or other ownership interests in, Gadsden or any Gadsden Subsidiary;


 


(v)            any
change in any method or practice of financial accounting by Gadsden or any Gadsden Subsidiary; or


 


(vi)           any
incurrence, assumption or guarantee by Gadsden or any Gadsden Subsidiary of any indebtedness for borrowed money other than incurrences,
assumptions or guarantees that would have been permitted if incurred subsequent to the date of this Agreement in accordance with
Section 4.2 and other that mortgage loan, mezzanine loan and related indebtedness with respect to real property investments.


 


(g)            No
Undisclosed Material Liabilities. Except as disclosed in the Gadsden balance sheet as of December 31, 2018 provided to Parent,
there are no Liabilities of Gadsden or any of the Gadsden Subsidiaries, whether accrued, contingent, absolute or determined other
than: (i) Liabilities reflected in the financial statements (including the notes thereto), or (ii) Liabilities incurred in the
ordinary course of business consistent with past practice since the date of the Gadsden Balance Sheet and as would not, individually
or in the aggregate, constitute a Gadsden Material Adverse Effect and Liabilities incurred as described in Section 3.1(g) of the Gadsden Disclosure
Letter, or (iii) Liabilities that are disclosed in the Registration Statement, as amended.


 


(h)            No
Default. Neither Gadsden nor any of the Gadsden Subsidiaries is or has been in default or violation (and no event has occurred
which, with notice or the lapse of time or both, would constitute a default or violation) of


 


(i)             any
material term, condition or provision of the Gadsden Charter or the Gadsden Bylaws or the comparable charter or organizational
documents of any of the Gadsden Subsidiaries,


 


(ii)            any
term, condition or provision of any loan or credit agreement or any note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license to which Gadsden or any of the Gadsden Subsidiaries is now a party or by
which Gadsden or any of the Gadsden Subsidiaries or any of their respective properties or assets is bound, or


 


(iii)           any
Law or Order applicable to or binding upon Gadsden or any of the Gadsden Subsidiaries or any of their respective properties
or assets, except, in the case of clauses (i) (with respect to Gadsden Subsidiaries that constitute Joint Ventures as
disclosed in Section 3.1(c) of the Gadsden Disclosure Letter or Section 3.1(h) of the Gadsden Disclosure Letter), (ii) and (iii), for defaults or
violations that, individually or in the aggregate, have not constituted, and would not constitute, a Gadsden Material Adverse
Effect.


 


(i)             Compliance
with Applicable Laws. Gadsden and the Gadsden Subsidiaries hold all permits, licenses, certificates, registrations, variances,
exemptions, Orders, franchises and approvals of all Governmental Entities necessary or required by any applicable Law or Order
for the lawful conduct of their respective businesses (the “Gadsden Permits”), except where the failure so
to hold, individually or in the aggregate, does not constitute and would not reasonably be expected to result in a Gadsden Material
Adverse Effect. Gadsden and the Gadsden Subsidiaries are in compliance with the terms of the Gadsden Permits, except where the
failure to so comply, individually or in the aggregate, does not constitute and would not reasonably be expected to result in
a Gadsden Material Adverse Effect. Except as would not, individually or in the aggregate, constitute and would not reasonably
be expected to result in a Gadsden Material Adverse Effect, the businesses of Gadsden and the Gadsden Subsidiaries are not being
and have not been conducted in violation of any Law or Order. No investigation or review by any Governmental Entity with respect
to Gadsden or any of the Gadsden Subsidiaries is pending or, to the Knowledge of Gadsden, is overtly threatened, other than those
the outcome of which, individually or in the aggregate, would not constitute a Gadsden Material Adverse Effect.


 






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(j)             Litigation.
There is no litigation, arbitration, claim, investigation, suit, action or proceeding pending or, to the Knowledge of Gadsden,
overtly threatened against or affecting Gadsden or any Gadsden Subsidiary or any of their respective property or assets that,
individually or in the aggregate, constitutes or would reasonably be expected to result in a Gadsden Material Adverse Effect,
nor is there any such litigation, arbitration, claim, investigation, suit, action or proceeding or any Order outstanding against
Gadsden or any Gadsden Subsidiary or any of their respective properties or assets which in any manner challenges or seeks to prevent
or enjoin, alter or materially delay the Stock Transaction, it being acknowledged that there is no representation and warranty
under this Section 3.1(j) with respect to the litigations described in Section 3.1(j) of the Gadsden Disclosure Letter.


 


(k)            Taxes.
Except as disclosed on Section 3.1(k) of the Gadsden Disclosure Letter or as would not, individually or in the aggregate, have a Gadsden Material
Adverse Effect:


 


(i)              (A)
Gadsden and each Gadsden Subsidiary has timely filed or has had timely filed on its behalf (taking into account extensions) all
Tax Returns required to be filed by it or on its behalf, and all such Tax Returns were, at the time filed and continue to be (after
giving effect to amendments thereto), true, correct and complete; (B) Gadsden and each Gadsden Subsidiary has paid (or Gadsden
has paid on behalf of such Gadsden Subsidiary) all Taxes required to be paid by it (in each case of clause (A) or (B), except
with respect to matters for which appropriate reserves have been established in accordance with GAAP); (C) as of the date hereof,
there are no audits, examinations or other proceedings relating to any Taxes of Gadsden or any Gadsden Subsidiary pending or,
to the Knowledge of Gadsden, overtly threatened; (D) all deficiencies asserted or assessments made with respect to Gadsden or
any of the Gadsden Subsidiaries as a result of any examination by the Internal Revenue Service or any other taxing authority have
been paid in full; (E) no requests for waivers of the time to assess any Taxes against Gadsden or any Gadsden Subsidiary have
been granted and remain in effect; (F) there are no Liens for any material Taxes on any assets of Gadsden or any Gadsden Subsidiary
other than Liens for Taxes not yet due or payable or which are being contested in good faith through appropriate proceedings;
(G) to the Knowledge of Gadsden, no claim has been made by a taxing authority in a jurisdiction in which income Tax Returns are
not filed by or on behalf of Gadsden or any Gadsden Subsidiary that Gadsden or any such Gadsden Subsidiary is or may be subject
to income taxation by that jurisdiction; and (H) all material Taxes required to be withheld in connection with amounts paid or
owing to any employee, creditor, shareholder or other third party have been timely withheld and, to the extent required prior
to the date hereof, have been paid to the relevant Tax authority.


 






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(ii)             Neither
Gadsden nor any Gadsden Subsidiary is a party to (A) any Tax allocation or sharing agreement other than any agreement solely between
Gadsden and any Gadsden Subsidiary or (B) any Tax Protection Agreement.


 


(iii)            Neither
Gadsden nor any Gadsden Subsidiary has any liability for Taxes of any Person other than Gadsden and the Gadsden Subsidiaries under
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor.


 


(iv)           Neither
Gadsden nor any Gadsden Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation
Section 1.6011-4(b)(2).


 


(v)            Each
Gadsden Subsidiary that is a partnership, joint venture or limited liability company has since the date it became a Subsidiary
been classified for U.S. federal income tax purposes as a partnership or disregarded entity, as the case may be, and not as an
association taxable as a corporation, or as a “publicly traded partnership” within the meaning of Section 7704(b)
of the Code.


 


(vi)           Gadsden
has not agreed or is required to make any adjustment pursuant to Section 481(a) of the Code; (ii) knowledge that the Internal
Revenue Service has proposed any such adjustment or change in accounting method with respect to Gadsden or any Gadsden Subsidiary,
or (iii) an application pending with any taxing authority requesting permission for any change in accounting method.


 


(vii)          Neither
Gadsden nor any Gadsden Subsidiary is a foreign person within the meaning of Section 1445 of the Code.


 


(viii)         Neither
Gadsden nor any Gadsden Subsidiary has in effect any tax elections for federal income tax purposes under Sections 108, 168, 338,
441, 471, 1017, 1033, 1502 or 4977 of the Code with respect to Gadsden or any Gadsden Subsidiary.


 


(ix)            There
is no contract, agreement, plan or arrangement covering any person that, individually or collectively, as a consequence of this
transaction could give rise to the payment of any amount that would not be deductible by Gadsden or any Gadsden Subsidiary by
reason of Section 280G of the Code.


 


(x)             Neither
Gadsden nor any of the Gadsden Subsidiaries (i) owns any real property located in New York State, (ii) is the lessee of any such
New York real property, or (iii) owns any interest in real property that may subject any of the parties to a transfer tax as a
result of the transactions contemplated by this Agreement.


 


(xi)            Neither
the Gadsden nor any of the Gadsden Subsidiaries, owns an interest in any (i) domestic international sales corporation, (ii) foreign
sales corporation, (iii) controlled foreign corporation, or (iv) passive foreign investment company.


 






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(xii)       Neither
Gadsden nor any of the Gadsden Subsidiaries is a party (other than as an investor) to any industrial development bond.


 


(xiii)      Neither
Gadsden nor any of the Gadsden Subsidiaries was a party to any deferred intercompany transaction that will be restored (pursuant
to the Section 1502 regulations) and will result in income or loss to Gadsden or any Gadsden Subsidiary due to the contemplated
transaction.


 


(xiv)      During
the previous two years neither Gadsden nor any Gadsden Subsidiary has engaged in any exchange under which the gain realized on
such exchange was not recognized due to Section 1031 of the Code.


 


(xv)       Neither
Gadsden nor any of the Gadsden Subsidiaries is entitled to any (A) net operating loss carryforward, (B) investment tax credit carryforward,
(C) research and development tax credit carryforward, (iv) foreign tax credit carryforward, or (v) any other tax credit carryforward
after the Closing Date which carryover resulted from a taxable period that ended on or before the Closing Date.


 


(xvi)      All
intercompany transactions transacted by Gadsden or any Gadsden Subsidiary were conducted on an arm’s length basis and using
fair market values.


 


(l)            Benefit
Plans.


 


(i)          Section
3.1(l) of the Gadsden Disclosure Letter sets forth a true and complete list of each material employee benefit plan, program, policy,
practices, or other arrangement providing benefits to any current or former employee, officer or director of Gadsden or any Gadsden
Subsidiary or any beneficiary or dependent thereof that is sponsored or maintained by Gadsden or any Gadsden Subsidiary or to which
Gadsden or any Gadsden Subsidiary contributes or is obligated to contribute, whether or not written, including, without limitation,
any employee welfare benefit plan (within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”)), any employee pension benefit plan (within the meaning of Section 3(2) of ERISA) (whether
or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, vacation, insurance, stock purchase, stock
option, equity or equity based plan or award, severance, employment, change of control or fringe benefit plan, program or agreement,
other than any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and any other plan, program or
arrangement maintained by an entity other than Gadsden or an Gadsden Subsidiary pursuant to the Gadsden Collective Bargaining Agreements
(collectively, the “Gadsden Employee Benefit Plans”).


 






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(ii)         (A)
Each of the Gadsden Employee Benefit Plans has been operated and administered in all material respects with applicable Law, including,
but not limited to, ERISA, the Code and, in each case, the regulations thereunder; (B) each of the Gadsden Employee Benefit Plans
intended to be “qualified” (within the meaning of Section 401(a) of the Code) has received a favorable determination
letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service
with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and
Gadsden is not aware of any reason why any such determination letter should be revoked; (C) no Gadsden Employee Benefit Plan is
subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code; (D) no Gadsden Employee Benefit Plan provides benefits,
including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees
or beneficiary or covered dependent of an employee or former employee or directors of Gadsden or any Gadsden Subsidiary beyond
their retirement or other termination of service, other than (1) coverage mandated by applicable Law or (2) death benefits or retirement
benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (E) no Controlled Group
Liability has been incurred by Gadsden or any Gadsden Subsidiary that has not been satisfied in full, and no condition exists that
shall result in Gadsden or any Gadsden Subsidiary of incurring any such liability that would be material to Gadsden; (F) all contributions
or other amounts payable by Gadsden or a Gadsden Subsidiary with respect to each Gadsden Employee Benefit Plan in respect of current
or prior plan years have been paid or accrued in accordance with GAAP; (G) neither Gadsden nor a Gadsden Subsidiary has engaged
in a transaction in connection with which Gadsden or a Gadsden Subsidiary reasonably could be subject to either a material civil
penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code;
(H) there are no pending, overtly threatened or anticipated claims (other than routine claims for benefits) by, on behalf of or
against any of the Gadsden Employee Benefit Plans or any trusts related thereto plan which could reasonably be expected to result
in any material liability of Gadsden or any Gadsden Subsidiary; (I) since January 1, 2018, neither Gadsden nor its Subsidiaries
has agreed or otherwise committed to, whether in writing or otherwise, increase or improve the compensation, benefits or terms
and conditions of employment or service of any director, officer, employee or consultant other than as required under an applicable
Gadsden Employee Benefit Plan or pursuant to the terms of a Gadsden Collective Bargaining Agreement; (J) except as indicated in
Section 3.1(l) of the Gadsden Disclosure, no Gadsden Employee Benefit Plans exists which could result in the payment of material
amount of money or any other property or rights, or accelerate or provide any other material rights or benefits, or require the
payment of amounts or benefits that would not be deductible under 280G of the Code, to any current or former employee, director
or consultant of Gadsden or any Subsidiary that would not have been required but for the transactions contemplated by this Agreement;
and (K) each Gadsden Employee Benefit Plan may be amended and terminated in accordance with its terms.


 


(m)          Labor
Matters. Section 3.1(m) of the Gadsden Disclosure Letter sets forth a list of each collective bargaining agreement to which
Gadsden or a Gadsden Subsidiary is a party with respect to employees of Gadsden and the Gadsden Subsidiaries (collectively, the
“Gadsden Collective Bargaining Agreements”). With respect to employees of Gadsden and the Gadsden Subsidiaries,
except as would not, individually or in the aggregate, have an Gadsden Material Adverse Effect, (i) Gadsden and each of the Gadsden
Subsidiaries is in compliance with the terms of the Gadsden Collective Bargaining Agreements; (ii) except as set forth in Section
3.1(m) of the Gadsden Disclosure Letter, none of Gadsden, any Subsidiary or any ERISA Affiliate has at any time since January 1,
2016 withdrawn in any complete or partial withdrawal from any “multiemployer plan” as defined in Section 3 (37) of
ERISA and, if Gadsden, its Subsidiaries and each ERISA Affiliate were to, as of the date hereof, completely withdraw from all multiemployer
plans in which any of them participate, or to which any of them otherwise have any obligation to contribute, neither Gadsden, any
Subsidiary nor any ERISA Affiliate would incur a withdrawal liability that would result in a Gadsden Material Adverse Effect; and
(iii) neither Gadsden nor any Gadsden Subsidiary is the subject of a proceeding asserting it has committed an unfair labor practice,
nor, to the Knowledge of Gadsden, is any such proceeding overtly threatened, nor is there any strike or other labor dispute by
the employees of Gadsden or any Gadsden Subsidiary pending or overtly threatened, nor does Gadsden have Knowledge of any activity
involving any employee of Gadsden or any Gadsden Subsidiary seeking to certify an additional collective bargaining unit or engaging
in union organizational activity.


 






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(n)          Environmental
Matters.


 


(i)          To
the Knowledge of Gadsden, neither Gadsden nor any Gadsden Subsidiary is in violation of any applicable Law or Order relating to
pollution or protection of public health and safety, the environment (including indoor or ambient air, surface water, groundwater,
land surface or subsurface) or natural resources, including laws and regulations relating to the release or threatened release
of any pollutant, contaminant, waste or toxic substance, including asbestos or any substance containing asbestos, polychlorinated
biphenyls, petroleum or petroleum products (including crude oil and any fraction thereof), radon, mold, fungus and other hazardous
biological materials (collectively, “Hazardous Materials”) or to the manufacture, management, possession, presence,
generation, processing, distribution, use, treatment, storage, disposal, transportation, abatement, removal, remediation or handling
of, or exposure to, Hazardous Materials (collectively, “Environmental Laws”), except for any violation that,
individually or in the aggregate, would not constitute a Gadsden Material Adverse Effect; and


 


(ii)         To
the Knowledge of Gadsden, neither Gadsden nor the Gadsden Subsidiaries have received any written notice of, and there are no, pending
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to Hazardous Materials or any Environmental Law against or affecting Gadsden or any of the
Gadsden Subsidiaries or any of the Gadsden Properties that have not been remedied or cured, and to the Knowledge of Gadsden there
is no basis therefor, in each case, except as would not, individually or in the aggregate, have a Gadsden Material Adverse Effect.


 


(iii)        Neither
Gadsden nor any Gadsden Subsidiary has entered into, agreed to or is bound by any material consent decree or order or is a party
to any material judgment, decree or judicial order relating to compliance with Environmental Laws or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of Hazardous Materials.


 


(o)          Properties.


 


(i)          Section
3.1(o) of the Gadsden Disclosure Letter sets forth a correct list of all real property owned or leased (as lessee) by OCPC or other
Gadsden Subsidiary (all such real property interests, together with all buildings, structures and other improvements and fixtures
located on or under such real property and all easements, rights and other appurtenances to such real property, are individually
referred to herein as an “Gadsden Property” and collectively referred to herein as the “Gadsden Properties”).


 






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(ii)         OPCO
or other Gadsden Subsidiary owns fee simple title or leasehold title (as applicable) to each of the Gadsden Properties, in each
case, free and clear of Liens, mortgages or deeds of trust, claims against title, charges that are Liens, security interests or
other encumbrances on title, rights of way, restrictive covenants, declarations or reservations of an interest in title (collectively,
“Encumbrances”), except for the following: (A) Encumbrances set forth Section 3.1(o) of the Gadsden Disclosure
Letter or relating to debt obligations reflected in the Company’s financial statements and the notes thereto (including with
respect to debt obligations which are not consolidated), (B) Encumbrances that result from any statutory or other Liens for Taxes
or assessments that are not yet due or delinquent or the validity of which is being contested in good faith by appropriate proceedings;
(C) any Material Contracts (only to the extent that the same encumbers or affects title to real property), or leases to third parties
for the occupation of portions of the Gadsden Properties by such third parties in the ordinary course of the business of Gadsden
or OPCO, (D) Encumbrances imposed or promulgated by Law or any Governmental Entity, including zoning regulations, (E) Encumbrances
disclosed on existing title policies made available to the Parent prior to the date hereof, (F) any cashiers’, landlords’,
workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s liens and other similar
liens imposed by Law and incurred in the ordinary course of business, and (G) any other Encumbrances, limitations or title defects
of any kind, if any, that, individually or in the aggregate, would not constitute a Gadsden Material Adverse Effect.


 


(iii)        Gadsden
and OPCO have made available to Parent all title insurance policies with respect to the Gadsden Properties. To Gadsden’s
Knowledge, no material claim has been made under any such title insurance policy and each such title insurance policy is in full
force and effect as of the date hereof.


 


(iv)        No
certificate, permit or license from any Governmental Entity having jurisdiction over any of the Gadsden Properties or any agreement,
easement or other right that is necessary to permit the lawful use and operation of the buildings and improvements on any of the
Gadsden Properties or that is necessary to permit the lawful use and operation of all parking areas, driveways, roads and other
means of egress and ingress to and from any of the Gadsden Properties has not been obtained and is not in full force and effect,
and neither Gadsden nor any Gadsden Subsidiary has received written notice of any threat of modification or cancellation of any
such certificate, permit or license, except for such notices, failures to obtain and to have in full force and effect, which would
not, individually or in the aggregate, constitute a Gadsden Material Adverse Effect and


 


(v)         Neither
Gadsden nor any Gadsden Subsidiary has received any written notice to the effect that (A) any condemnation or rezoning proceedings
are pending or threatened with respect to any of the Gadsden Properties, or (B) any zoning regulation or ordinance (including with
respect to parking), board of fire underwriters rules, building, fire, health or other Law, code, ordinance, Order or regulation
has been violated for any Gadsden Property, which in the case of clauses (A) and (B) would, individually or in the aggregate, constitute
a Gadsden Material Adverse Effect.


 






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(vi)        Section
3.1(o) of the Gadsden Disclosure Letter lists as of the date hereof each ground lease to which Gadsden or any Gadsden Subsidiary
is party, as lessee or lessor. Each such ground lease is in full force and effect and is valid, binding and enforceable in accordance
with its terms against the lessor or lessee thereunder, as applicable, and, to the Knowledge of Gadsden, against the other parties
thereto, except as would not constitute, individually or in the aggregate, a Gadsden Material Adverse Effect. Except as would not
constitute, individually or in the aggregate, a Gadsden Material Adverse Effect, neither Gadsden nor any Gadsden Subsidiary, on
the one hand, nor, to the Knowledge of Gadsden, any other party, on the other hand, is in default under any such ground lease which
default is reasonably likely to result in a termination of such ground lease. No purchase option has been exercised under any of
such ground lease, except purchase options whose exercise has been evidenced by a written document as described in Section 3.1(o)
of the Gadsden Disclosure Letter. Gadsden and OPCO have made available to Parent a correct and complete copy of each such ground
lease and all material amendments thereto.


 


(vii)       Neither
Gadsden nor any Gadsden Subsidiary is a party to any agreement relating to the management of any of the Gadsden Properties by a
party other than Gadsden or any wholly-owned Gadsden Subsidiaries, except as disclosed Section 3.1(o) of the Gadsden Disclosure
Letter.


 


(viii)      Gadsden
has made available to Parent true, correct and complete copies of the leases that Gadsden and its Subsidiaries, taken as a whole,
are party to as a landlord or lessor with respect to each of the applicable Gadsden Properties including all material amendments,
modifications, supplements, renewals, and extensions thereto, in each case as in effect on the date hereof (the “Gadsden
Leases”). Neither Gadsden nor any of the Gadsden Subsidiaries, nor to the Knowledge of Gadsden, any tenant, has received
written notification that they are in default under any Gadsden Lease, except for defaults that would not, individually or in the
aggregate, constitute a Gadsden Material Adverse Effect.


 


(p)           Insurance.
Gadsden or OPCO maintains insurance coverage with reputable insurers, or maintains self-insurance practices, in such amounts and
covering such risks which in its good faith judgment are reasonable for the business of Gadsden and the Gadsden Subsidiaries (taking
into account the cost and availability of such insurance). There is no claim by Gadsden or any Gadsden Subsidiary pending under
any such policies which (i) has been denied or disputed by the insurer and (ii) would constitute, individually or in the aggregate,
a Gadsden Material Adverse Effect.


 


(q)           Votes
Required. The affirmative vote of two-thirds of all the votes entitled to be cast by the holders of Gadsden Common Shares,
Gadsden Series A Preferred Shares and the Gadsden Series C Preferred Shares, voting as a single class on an as-converted basis
(the “Gadsden Stockholder Approval”), are the only votes or consents required of the holders of any class or
series of the Gadsden Common Shares or other securities of or equity interests in Gadsden required to approve this Agreement and
to approve and consummate the Stock Transaction.


 






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(r)            Brokers.
Except for the fees and expenses payable to National Securities Corporation, no broker, investment banker or other Person is entitled
to any brokers’, finders’ or other similar finder’s fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Gadsden, any Gadsden Subsidiary or any Affiliate thereof. Gadsden
has made available to Parent prior to the date of this Agreement true and complete copies of any agreement under which National
Securities Corporation would be entitled to receive any payments in connection with this Agreement or the transactions contemplated
hereby.


 


(s)         
 Material Contracts.


 


(i)          All
of the Material Contracts of Gadsden as in effect as of the date hereof are listed in Section 3.1(s) of the Gadsden Disclosure
Letter or in a Covered Gadsden Disclosure. Gadsden has, prior to the date hereof, made available to Parent true and complete copies
of each Material Contract as in effect as of the date hereof. All Material Contracts are valid, binding and enforceable and in
full force and effect with respect to Gadsden and the Gadsden Subsidiaries, and to the Knowledge of Gadsden, with respect to each
other party to any such Material Contract, except where such failure to be so valid, binding and enforceable and in full force
and effect do not and would not, individually or in the aggregate, constitute a Gadsden Material Adverse Effect, and except, in
each case, to the extent that enforcement of rights and remedies created by any Material Contracts are subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar Laws of general application related to or affecting creditors’
rights and to general equity principles.


 


(ii)         Except
as set forth in Section 3.1(s) of the Gadsden Disclosure Letter, (A) neither Gadsden nor any Gadsden Subsidiary is in violation
of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would
cause such a violation of or default under) any Material Contract to which it is a party or by which it or any of its properties
or assets is bound and (B) to the Knowledge of Gadsden, as of the date hereof, there are no such violations or defaults (nor does
there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation or default)
by any third party to any Material Contract, except, in either the case of clause (A) or (B), for those violations or defaults
that, individually or in the aggregate, would not constitute a Gadsden Material Adverse Effect.


 


(iii)        Section
3.1(s) of the Gadsden Disclosure Letter lists all agreements (other than agreements with respect to the Joint Ventures, and leases
or subleases which contain options to purchase) entered into by Gadsden or any Gadsden Subsidiary as of the date hereof providing
for the sale of, or option to sell, any Gadsden Properties or any material interest therein or the purchase of, or option to purchase,
by Gadsden or any Gadsden Subsidiary, on the one hand, or the other party thereto, on the other hand, any real estate or material
interest therein not yet consummated as of the date hereof that is not otherwise described in a Covered Gadsden Disclosure.


 






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(t)            Inapplicability
of Takeover Statutes; Certain Charter and Bylaw Provisions. Gadsden has taken all appropriate and necessary actions to exempt
the Stock Transaction, this Agreement and the other transactions contemplated thereby from the restrictions of any applicable provision
of Subtitles 6 and 7 of Title 3 of the MGCL, as applicable to a Maryland corporation, and Title 8 (collectively, the “Takeover
Statute”). No other “control share acquisition”, “fair price”, “moratorium” or other
antitakeover Laws apply to the Stock Transaction, this Agreement or the other transactions contemplated hereby. Gadsden and the
Gadsden Board of Directors have taken all appropriate and necessary actions to cause the Stock Transaction, this Agreement and
the other transactions contemplated hereby to comply with or be exempted from any provision contained in the Gadsden Charter, Gadsden
Bylaws or in the comparable organizational document of any Gadsden Subsidiary that would otherwise impose any limitations on ownership
of Gadsden Common Shares as set forth in the Gadsden Charter, including the ownership limit set forth in the Gadsden Charter inapplicable
to the Stock Transaction, the execution of and performance of the this Agreement and the transactions contemplated hereby


 


(u)           Information
Supplied. The information supplied (or to be supplied) by Gadsden or any Gadsden Subsidiary for inclusion in the Transaction
8K, or any amendment or supplement thereto, shall not, on the date of any such filing or at the Closing Time, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. For the avoidance of doubt, any information
supplied in writing by Parent for inclusion in the Transaction 8K shall not be considered to have been supplied by Gadsden or any
Gadsden Subsidiary for purposes of this representation.


 


(v)           Investment
Company Act of 1940. None of Gadsden or any Gadsden Subsidiary is, or after giving effect to the transactions contemplated
by this Agreement will be, required to be registered as an investment company under the Investment Company Act of 1940, as amended.


 


Section 3.2       Representations and Warranties
of Parent.


 


Except as set forth
in (i) Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as amended, Quarterly Reports on Form 10-Q for the
periods ended March 31, 2018, June 30, 2018 and September 30, 2018, any Current Report on Form 8-K that was filed from and after
September 30, 2018, or any proxy statement that was filed from and after September 30, 2018, and in each case any amendment thereto,
filed by Parent with the SEC on or after January 1, 2018 and prior to the date hereof, and except for the information that is included
in the Registration Statement that was filed by Parent and the amendments thereto (except in each case for the risk factors section
and any forward looking statements contained in the Management’s Discussion & Analysis, which shall not modify the representations
and warranties in this Section 3.2) (the “Covered Parent SEC Disclosure”), or (ii) the disclosure letter delivered
to Gadsden on the date of this Agreement (the “Parent Disclosure Letter”), Parent represents and warranties
to Gadsden as follows:


 


(a)           Organization,
Standing and Power of Parent. Parent is duly formed, validly existing and in good standing under the Laws of the State of Nevada
and has all of the requisite corporate power, authority and all necessary government approvals or licenses to own, lease, operate
its properties and to carry on its business as now being conducted. Parent is duly qualified or licensed to do business and is
in good standing in each jurisdiction in which the nature of the business it is conducting, or the ownership, operation or leasing
of its properties or the management of properties for others makes such qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed or in good standing would not, individually or in the aggregate,
constitute a Parent Material Adverse Effect. Parent has heretofore made available to Gadsden complete and correct copies of the
charter, bylaws or other organizational documents of each of Parent and its Subsidiaries, each as amended to the date hereof and
each as in full force and effect.


 






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(b)           Subsidiaries.
Except as disclosed in Section 3.2(b) of the Parent Disclosure Letter, each Subsidiary of Parent is duly organized, validly existing
and, as applicable, in good standing under the Laws of its jurisdiction of formation, and has all of the requisite corporate, partnership,
limited liability company or other organizational power and authority and all necessary government approvals and licenses to own,
lease and operate its properties and to carry on its business as now being conducted, except where the failure to have such approvals
or licenses would not, individually or in the aggregate, constitute a Parent Material Adverse Effect. Each Subsidiary of Parent
is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or
the ownership, operation or leasing of its properties or the management of properties for others makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be so qualified or licensed or in good standing would not, individually
or in the aggregate, constitute a Parent Material Adverse Effect. All outstanding equity interests in each Subsidiary of Parent
have been duly authorized and are validly issued, fully paid and (except for general partnership interests) nonassessable, and
are not subject to any preemptive rights, purchase options, call options, rights of first refusal, subscriptions or any similar
rights and are owned by Parent and are so owned free and clear of all Liens, except as would not, individually or in the aggregate,
constitute a Parent Material Adverse Effect.


 


(c)           Capital
Structure. The authorized shares of capital stock of Parent and the outstanding shares of such capital stock and the outstanding
awards to purchase Parent Common Stock, as of the date of this Agreement, are as provided in Section 3.2(c) of the Disclosure Letter.


 


(i)          As
of the date of this Agreement, except as disclosed in Section 3.2(c) of the Parent Disclosure Letter, there are no issued and outstanding
or reserved for issuance:


 


(A)         shares
or other equity securities of Parent;


 


(B)          restricted
shares of Parent Common Stock or performance stock awards relating to the equity interests of Parent;


 


(C)          securities
of Parent or any Parent Subsidiary convertible into or exchangeable for stock or other equity securities of Parent or any Parent
Subsidiary; and


 






     20


     


    

 


(D)          Convertible
Rights to which Parent or any Parent Subsidiary is a party or by which it is bound in any case obligating Parent or any Parent
Subsidiary to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or
acquired, stock or other equity securities of Parent or of any Parent Subsidiary, or obligating Parent or any Parent Subsidiary
to grant, extend or enter into any such subscription, option, warrant, conversion right, stock appreciation right, call, right,
commitment, arrangement or agreement.


 


(ii)         All
outstanding shares of Parent are, and all shares reserved for issuance will be, upon issuance in accordance with the terms specified
in the instruments or agreements pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable
and not subject to or issued in violation of, any preemptive right, purchase option, call option, right of first refusal, subscription
or any other similar right.


 


(iii)        All
dividends or distributions on securities of Parent or any material dividends or distributions on any securities of any Parent Subsidiary
(other than any wholly owned Parent Subsidiaries) that have been declared or authorized prior to the date of this Agreement have
been paid in full, other than accrued dividends on outstanding preferred stock of Parent.


 


(iv)        Except
for this Agreement or as disclosed in Section 3.2(c) of the Parent Disclosure Letter, there are not any:


 


(A)          shareholder
agreements, voting trusts, proxies or other agreements or understandings relating to the voting of any shares of Parent to which
Parent or any Parent Subsidiary is a party or by which it is bound or


 


(B)          agreements
or understandings relating to the sale or transfer (including agreements imposing transfer restrictions) of any shares of Parent
or any Parent Subsidiary is a party or by which it is bound.


 


(v)        Except
as disclosed in Section 3.2(c) of the Parent Disclosure Letter, no holder of securities in Parent or any Parent Subsidiary has
any right to have the offering or sale of such securities registered by Parent or any Parent Subsidiary, as the case may be.


 


(d)          Authority;
No Violations; Consents and Approval.


 


(i)          The
Parent Board of Directors has approved and declared advisable the Stock Transaction and the other transactions contemplated by
this Agreement. The Parent has all requisite corporate and authority to enter into this Agreement and to consummate the transactions
contemplated hereby, subject to the filing of designation of the Parent Securities. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate, or other organizational
action on the part of Parent. This Agreement has been duly executed and delivered by Parent, and assuming due execution and delivery
by Gadsden, constitutes legal, valid and binding obligations of Parent, enforceable against Parent in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other Laws of general applicability
relating to or affecting creditors’ rights and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).


 






     21


     


    

 


(ii)         The
execution and delivery of this Agreement by Parent does not, and the consummation of the transactions contemplated hereby, and
compliance with the provisions hereof, will not, conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation
under, require the consent or approval of any third party under, any provision of


 


(A)          the
Parent Charter or the Parent Bylaws or any provision of the comparable charter or organizational documents of any Parent Subsidiary,


 


(B)          any
loan or credit agreement or note, or any bond, mortgage, indenture, joint venture, lease, contract or other agreement, instrument,
permit, concession, franchise or license applicable to Parent or any Parent Subsidiary, or to which their respective properties
or assets are bound or any guarantee by Parent or any Parent Subsidiary of any of the foregoing, or


 


(C)          assuming
the consents, approvals, authorizations or permits and filings or notifications referred to in Section 3.2(d)(iii) are duly and
timely obtained or made and the Parent Stockholder Approval has been obtained, any Law or Order applicable to or binding upon Parent
or any Parent Subsidiary, or any of their respective properties or assets, other than as may arise in connection with Gadsden or
any Gadsden Subsidiary financing of the transactions contemplated by this Agreement, except in the case of clauses (B) and (C),
any of the foregoing that, individually or in the aggregate, would not constitute a Parent Material Adverse Effect.


 


(iii)        No
consent, approval, Order or authorization of, or registration, declaration or filing with, notice to or permit from, any Governmental
Entity, is required by or on behalf of Parent or any Parent Subsidiary in connection with the execution and delivery of this Agreement
Parent or the consummation by Parent of the transactions contemplated by this Agreement, except for:


 


(A)         the
filing of the designation of the Parent Securities; or


 


(B)          any
such other consent, approval, Order, authorization, registration, declaration, filing or permit that the failure to obtain or make,
individually or in the aggregate, would not reasonably be expected to materially impair or delay the ability of Parent to perform
its obligations hereunder or prevent the consummation by them of any of the transactions contemplated hereby.


 






     22


     


    

 


(e)           SEC
Documents; Financial Statements. Parent has made available to Gadsden (by public filing with the SEC or otherwise) a true and
complete copy of each report, schedule, registration statement, other statement (including proxy statements) and information filed
by Parent with the SEC since January 1, 2016 (the “Parent SEC Documents”), which are all the documents (other
than preliminary material) that Parent was required to file with the SEC since such date pursuant to the federal securities Laws
and the SEC rules and regulations thereunder. As of their respective dates, the Parent SEC Documents complied in all material respects
with the requirements of the Securities Act, the Sarbanes-Oxley Act of 2002 and the Exchange Act, as applicable, and the rules
and regulations of the SEC thereunder applicable to such Parent SEC Documents, in each case, as in effect at such time, and none
of the Parent SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading,
except to the extent such statements have been modified or superseded by later Parent SEC Documents filed and publicly available
prior to the date of this Agreement. No Parent Subsidiary is required (by contract or applicable Law) to make periodic filings
with the SEC. The consolidated financial statements of Parent (including the notes thereto) included or incorporated by reference
in the Parent SEC Documents (including the audited consolidated balance sheet of Parent as at December 31, 2017 (the “Parent
Balance Sheet”) and the unaudited consolidated statements of income for the six months ended June 30, 2018) complied
as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the
SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto, or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation
S-X of the SEC) and fairly present, in accordance with applicable requirements of GAAP and the applicable rules and regulations
of the SEC (subject, in the case of the unaudited statements, to normal, recurring adjustments, none of which are material), in
each case, as in effect at such time, the assets, Liabilities and the consolidated financial position of Parent and its Subsidiaries,
taken as a whole, as of their respective dates and the consolidated results of operations and cash flows of Parent and its Subsidiaries
taken as a whole, for the periods presented therein. Since the enactment of the Sarbanes-Oxley Act of 2002, Parent has been and
is in compliance in all material respects with the applicable provisions thereof and the rules and regulations promulgated thereunder.


 


(f)            Information
Supplied. The information supplied by Parent for inclusion in the Registration Statement, or any amendment or supplement thereto,
did not, on the date such document was filed, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. For the avoidance of doubt, any information supplied in writing by Gadsden for inclusion in the Registration
Statement or any amendment thereto shall not be considered to have been supplied by Parent for purposes of this representation.


 


(g)           Absence
of Certain Changes or Events. Since the date of the Parent Balance Sheet, except as disclosed in the Covered Parent SEC Disclosure
and except for the purchase by Parent of 1,000 Series A Preferred Units Gadsden for a purchase price of $350,000 in accordance
with an Amended and Restated Limited Liability Company Agreement of Roseville that was entered into among Roseville, Gadsden Realty
Investments I, LLC, a wholly owned subsidiary of Gadsden, and Parent, each of Parent and the Parent Subsidiaries have conducted
their business only in the ordinary course and there has not been: (i) a Parent Material Adverse Effect; (ii) any declaration,
setting aside for payment or payment of any dividend or other distribution; (iii) any amendment of any material term of any outstanding
security of Parent; (iv) any repurchase, redemption or other acquisition by Parent or any Parent Subsidiary of any outstanding
shares, stock or other securities of, or other ownership interests in, Parent or any Parent Subsidiary; or (v) any change in any
method or practice of financial accounting by Parent or any consolidated Parent Subsidiary other than any change after the date
of this Agreement permitted by Article IV.


 






     23


     


    

 


(h)           No
Undisclosed Material Liabilities. Except as disclosed in the Parent SEC Documents filed prior to the date hereof, there are
no Liabilities of Parent or any of the Parent Subsidiaries, whether accrued, contingent, absolute or determined other than: (i)
Liabilities reflected on the financial statements (including the notes thereto), or (ii) Liabilities incurred in the ordinary course
of business consistent with past practice since the date of the Balance Sheet as would not, individually or in the aggregate, constitute
a Parent Material Adverse Effect.


 


(i)            No
Default. Neither Parent nor any of the Parent Subsidiaries is or has been in default or violation (and no event has occurred
which, with notice or the lapse of time or both, would constitute a default or violation) of (i) any material term, condition or
provision of Parent’s Amended and Restated Articles of Incorporation (the “Parent Charter”) or Parent’s
Amended and Restated Bylaws (the “Parent Bylaws”) or the comparable charter or organizational documents, of
any Parent Subsidiaries, (ii) any term, condition or provision of any loan or credit agreement or any note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license to which Parent or any of the Parent Subsidiaries
is now a party or by which Parent or any of the Parent Subsidiaries or any of their respective properties or assets is bound, or
(iii) any Law or Order applicable to or binding upon Parent or any of the Parent Subsidiaries or any of their respective properties
or assets, except, in the case of clauses (ii) and (iii), for defaults or violations that, individually or in the aggregate, have
not constituted, and would not constitute, a Parent Material Adverse Effect.


 


(j)          Compliance
with Applicable Laws. Parent and the Parent Subsidiaries hold all permits, licenses, certificates, registrations, variances,
exemptions, Orders, franchises and approvals of all Governmental Entities necessary or required by any applicable Law or Order
for the lawful conduct of their respective businesses (the “Parent Permits”), except where the failure so to
hold, individually or in the aggregate, does not constitute and would not reasonably be expected to result in a Parent Material
Adverse Effect. Parent and the Parent Subsidiaries are in compliance with the terms of the Parent Permits, except where the failure
to so comply, individually or in the aggregate, does not constitute and would not reasonably be expected to result in a Parent
Material Adverse Effect. Except as would not, individually or in the aggregate, constitute and would not reasonably be expected
to result in a Parent Material Adverse Effect, the businesses of Parent and the Parent Subsidiaries are not being and have not
been conducted in violation of any Law or Order. No investigation or review by any Governmental Entity with respect to Parent or
any of the Parent Subsidiaries is pending or, to the Knowledge of Parent, is overtly threatened, other than those the outcome of
which, individually or in the aggregate, would not constitute a Parent Material Adverse Effect.


 






     24


     


    

 


(k)           Litigation.
Except as disclosed in the Covered Parent SEC Disclosure or Section 3.2(k) of the Parent Disclosure Letter, there is no litigation,
arbitration, claim, investigation, suit, action or proceeding pending or, to the Knowledge of Parent, overtly threatened against
or affecting Parent or any Parent Subsidiary or any of their respective property or assets that, individually or in the aggregate,
constitutes or would reasonably be expected to result in a Parent Material Adverse Effect, nor is there any such litigation, arbitration,
claim, investigation, suit, action or proceeding or any Order outstanding against Parent or any Parent Subsidiary or any of their
respective properties or assets which in any manner challenges or seeks to prevent or enjoin, alter or materially delay the Stock
Transaction, it being acknowledged that there is no representation and warranty under this Section 3.2(k) with respect to the litigations
disclosed in the Covered Parent SEC Disclosure.


 


(l)            Taxes.
Except as disclosed in Section 3.2(l) of the Parent Disclosure Letter or as would not, individually or in the aggregate, have a
Parent Material Adverse Effect:


 


(i)         (A)
Parent and each Parent Subsidiary has timely filed or has had timely filed on its behalf (taking into account extensions) all Tax
Returns required to be filed by it or on its behalf, and all such Tax Returns were, at the time filed and continue to be (after
giving effect to amendments thereto), true, correct and complete; (B) Parent and each Parent Subsidiary has paid (or Parent has
paid on behalf of such Parent Subsidiary) all Taxes required to be paid by it (in each case of clause (A) or (B), except with respect
to matters for which appropriate reserves have been established in accordance with GAAP); (C) as of the date hereof, there are
no audits, examinations or other proceedings relating to any Taxes of Parent or any Parent Subsidiary pending or, to the Knowledge
of Parent, overtly threatened; (D) all deficiencies asserted or assessments made with respect to Parent or any of the Parent Subsidiaries
as a result of any examination by the Internal Revenue Service or any other taxing authority have been paid in full; (E) no requests
for waivers of the time to assess any Taxes against Parent or any Parent Subsidiary have been granted and remain in effect; (F)
there are no Liens for any material Taxes on any assets of Parent or any Parent Subsidiary other than Liens for Taxes not yet due
or payable or which are being contested in good faith through appropriate proceedings; (G) to the Knowledge of Parent, no claim
has been made by a taxing authority in a jurisdiction in which income Tax Returns are not filed by or on behalf of Parent or any
Parent Subsidiary that Parent or any such Parent Subsidiary is or may be subject to income taxation by that jurisdiction; and (H)
all material Taxes required to be withheld in connection with amounts paid or owing to any employee, creditor, shareholder or other
third party have been timely withheld and, to the extent required prior to the date hereof, have been paid to the relevant Tax
authority.


 


(ii)        Neither
Parent nor any Parent Subsidiary is a party to (A) any Tax allocation or sharing agreement other than any agreement solely between
Parent and any Parent Subsidiary or (B) any Tax Protection Agreement.


 






     25


     


    

 


(iii)       Neither
Parent nor any Parent Subsidiary has any liability for Taxes of any Person other than Parent and the Parent Subsidiaries under
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor.


 


(iv)       Neither
Parent nor any Parent Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation
Section 1.6011-4(b)(2).


 


(v)        Each
Parent Subsidiary that is a partnership, joint venture or limited liability company has since the date it became a Subsidiary been
classified for U.S. federal income tax purposes as a partnership or disregarded entity, as the case may be, and not as an association
taxable as a corporation, or as a “publicly traded partnership” within the meaning of Section 7704(b) of the Code.


 


(vi)       Neither
Parent nor any Parent Subsidiary has (i) agreed to or is required to make any adjustment pursuant to Section 481(a) of the Code;
(ii) knowledge that the Internal Revenue Service has proposed any such adjustment or change in accounting method with respect to
Parent or any Parent Subsidiary, or (iii) an application pending with any taxing authority requesting permission for any change
in accounting method.


 


(vii)      Neither
Parent nor any Parent Subsidiary is a foreign person within the meaning of Section 1445 of the Code.


 


(viii)     Neither
Parent nor any Parent Subsidiary has in effect any tax elections for federal income tax purposes under Sections 108, 168, 338,
441, 471, 1017, 1033, 1502 or 4977 of the Code with respect to Parent or any Parent Subsidiary.


 


(ix)        There
is no contract, agreement, plan or arrangement covering any person that, individually or collectively, as a consequence of this
transaction could give rise to the payment of any amount that would not be deductible by Gadsden, Parent or any Parent Subsidiary
by reason of Section 280G of the Code.


 


(x)         Neither
Parent nor any of the Parent Subsidiaries (i) owns any real property located in New York State, (ii) is the lessee of any such
New York real property, or (iii) owns any interest in real property that may subject any of the parties to a transfer tax as a
result of the transactions contemplated by this Agreement.


 


(xi)        Neither
the Parent nor any of the Parent Subsidiaries, owns an interest in any (i) domestic international sales corporation, (ii) foreign
sales corporation, (iii) controlled foreign corporation, or (iv) passive foreign investment company.


 


(xii)       Neither
Parent nor any of the Parent Subsidiaries is a party (other than as an investor) to any industrial development bond.


 


(xiii)      Neither
Parent nor any of the Parent Subsidiaries was a party to any deferred intercompany transaction that will be restored (pursuant
to the Section 1502 of the regulations) and will result in income or loss to Parent or any Parent Subsidiary due to the contemplated
transaction.


 






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(xiv)      During
the previous two years neither Parent nor any Parent Subsidiary has engaged in any exchange under which the gain realized on such
exchange was not recognized due to Section 1031 of the Code.


 


(xv)       Neither
Parent nor any of the Parent Subsidiaries is entitled to any (A) net operating loss carryforward, (B) investment tax credit carryforward,
(C) research and development tax credit carryforward, (D) foreign tax credit carryforward, or (E) any other tax credit carryforward
after the Closing Date which carryover resulted from a taxable period that ended on or before the Closing Date.


 


(xvi)      All
intercompany transactions transacted by Parent or any Parent Subsidiary were conducted on an arm’s length basis and using
fair market values.


 


(xvii)     The
information with respect to Parent’s assets and operations that was provided to Gadsden that was requested in connection
with the analysis of whether Parent would be able to qualify as a REIT under the Code is true and correct in all material respects.


 


(m)          Benefit
Plans.


 


(i)          Section
3.2(m) of the Parent Disclosure Letter sets forth a true and complete list of each material employee benefit plan, program, policy,
practices, or other arrangement providing benefits to any current or former employee, officer or director of Parent or any Parent
Subsidiary or any beneficiary or dependent thereof that is sponsored or maintained by Parent or any Parent Subsidiary or to which
Parent or any Parent Subsidiary contributes or is obligated to contribute, whether or not written, including, without limitation,
any employee welfare benefit plan (within the meaning of Section 3(1) of ERISA, any employee pension benefit plan (within the meaning
of Section 3(2) of ERISA) (whether or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, vacation,
insurance, stock purchase, stock option, equity or equity based plan or award, severance, employment, change of control or fringe
benefit plan, program or agreement, other than any “multiemployer plan” within the meaning of Section 4001(a)(3) of
ERISA and any other plan, program or arrangement maintained by an entity other than Parent or a Parent Subsidiary (collectively,
the “Parent Employee Benefit Plans”).


 






     27


     


    

 


(ii)         (A) Each of the Parent Employee Benefit Plans has been operated and administered in all material respects with applicable Law,
including, but not limited to, ERISA, the Code and, in each case, the regulations thereunder; (B) each of the Parent Employee Benefit
Plans intended to be “qualified” (within the meaning of Section 401(a) of the Code) has received a favorable determination
letter from the Internal Revenue Service, or has pending an application for such determination from the Internal Revenue Service
with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and
Parent is not aware of any reason why any such determination letter should be revoked; (C) no Parent Employee Benefit Plan is subject
to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code; (D) no Parent Employee Benefit Plan provides benefits,
including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees
or beneficiary or covered dependent of an employee or former employee or directors of Parent or any Parent Subsidiary beyond their
retirement or other termination of service, other than (1) coverage mandated by applicable Law or (2) death benefits or retirement
benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (E) no Controlled Group
Liability has been incurred by Parent or any Parent Subsidiary that has not been satisfied in full, and no condition exists that
shall result in Parent or any Parent Subsidiary of incurring any such liability that would be material to Parent; (F) all contributions
or other amounts payable by Parent or a Parent Subsidiary with respect to each Parent Employee Benefit Plan in respect of current
or prior plan years have been paid or accrued in accordance with GAAP; (G) neither Parent nor a Parent Subsidiary has engaged in
a transaction in connection with which Parent or a Parent Subsidiary reasonably could be subject to either a material civil penalty
assessed pursuant to Section 409 or 502(i) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code; (H)
there are no pending, overtly threatened or anticipated claims (other than routine claims for benefits) by, on behalf of or against
any of the Parent Employee Benefit Plans or any trusts related thereto plan which could reasonably be expected to result in any
material liability of Parent or any Parent Subsidiary; (I) since January 1, 2018, neither Parent nor its Subsidiaries has agreed
or otherwise committed to, whether in writing or otherwise, increase or improve the compensation, benefits or terms and conditions
of employment or service of any director, officer, employee or consultant other than as required under an applicable Parent Employee
Benefit Plan; (J) except as indicated in Section 3.2(m) of the Parent Disclosure, no Parent Employee Benefit Plans exists which
could result in the payment of material amount of money or any other property or rights, or accelerate or provide any other material
rights or benefits, or require the payment of amounts or benefits that would not be deductible under 280G of the Code, to any current
or former employee, director or consultant of Parent or any Subsidiary that would not have been required but for the transactions
contemplated by this Agreement; and (K) each Parent Employee Benefit Plan may be amended and terminated in accordance with its
terms.


 


(n)          Labor
Matters. Neither Parent nor any Parent Subsidiary is a party to any collective bargaining agreements with respect to employees
of Parent and the Parent Subsidiaries. With respect to employees of Parent and the Parent Subsidiaries, except as would not, individually
or in the aggregate, have a Parent Material Adverse Effect, (i) none of Parent, any Subsidiary or any ERISA Affiliate has at any
time since January 1, 2016, withdrawn in any complete or partial withdrawal from any “multiemployer plan” as defined
in Section 3 (37) of ERISA and, if Parent, its Subsidiaries and each ERISA Affiliate were to, as of the date hereof, completely
withdraw from all multiemployer plans in which any of them participate, or to which any of them otherwise have any obligation to
contribute, neither Parent, any Subsidiary nor any ERISA Affiliate would incur a withdrawal liability that would result in a Parent
Material Adverse Effect; and (ii) neither Parent nor any Parent Subsidiary is the subject of a proceeding asserting it has committed
an unfair labor practice, nor, to the Knowledge of Parent, is any such proceeding overtly threatened, nor is there any strike or
other labor dispute by the employees of Parent or any Parent Subsidiary pending or overtly threatened, nor does Parent have Knowledge
of any activity involving any employee of Parent or any Parent Subsidiary seeking to certify an a collective bargaining unit or
engaging in union organizational activity.


 






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(o)          Environmental
Matters.


 


(i)          Neither
Parent nor any Parent Subsidiary is in violation of any applicable Law or Order relating to Environmental Laws, except for any
violation that, individually or in the aggregate, would not constitute a Parent Material Adverse Effect; and


 


(ii)         To
the Knowledge of Parent, neither Parent nor the Parent Subsidiaries have received any written notice of, and there are no, pending
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to Hazardous Materials or any Environmental Law against or affecting Parent or any of the
Parent Subsidiaries or any of the Parent Properties that have not been remedied or cured, and to the Knowledge of Parent there
is no basis therefor, in each case, except as would not, individually or in the aggregate, have a Parent Material Adverse Effect.


 


(iii)        Neither
Parent nor any Parent Subsidiary has entered into, agreed to or is bound by any material consent decree or order or is a party
to any material judgment, decree or judicial order relating to compliance with Environmental Laws or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of Hazardous Materials.


 


(p)          Properties.


 


(i)          Section
3.2(p) of the Parent Disclosure Letter sets forth a correct list of all real property owned or leased (as lessee) by Parent or
a Parent Subsidiary (all such real property interests, together with all buildings, structures and other improvements and fixtures
located on or under such real property and all easements, rights and other appurtenances to such real property, are individually
referred to herein as an “Parent Property” and collectively referred to herein as the “Parent Properties”).


 


(ii)         The
Parent or Parent Subsidiary owns fee simple title or leasehold title (as applicable) to each of the Parent Properties, in each
case, free and clear of Liens, or Encumbrances, except for the following: (A) Encumbrances set forth Section 3.2(p) of the Parent
Disclosure Letter or relating to debt obligations reflected in the Company’s financial statements and the notes thereto (including
with respect to debt obligations which are not consolidated), (B) Encumbrances that result from any statutory or other Liens for
Taxes or assessments that are not yet due or delinquent or the validity of which is being contested in good faith by appropriate
proceedings; (C) any Material Contracts (only to the extent that the same encumbers or affects title to real property), or leases
to third parties for the occupation of portions of the Parent Properties by such third parties in the ordinary course of the business
of Parent or any Parent Subsidiary, (D) Encumbrances imposed or promulgated by Law or any Governmental Entity, including zoning
regulations, (E) Encumbrances disclosed on existing title policies made available to the Gadsden prior to the date hereof, (F)
any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and
materialmen’s liens and other similar liens imposed by Law and incurred in the ordinary course of business, and (G) any other
Encumbrances, limitations or title defects of any kind, if any, that, individually or in the aggregate, would not constitute a
Parent Material Adverse Effect.


 






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(iii)        Parent
has made available to Gadsden all title insurance policies with respect to the Parent Properties that are set forth on Section
3.2(p) of the Parent Disclosure Letter. To Parent’s Knowledge, no material claim has been made under any such title insurance
policy and each such title insurance policy is in full force and effect as of the date hereof.


 


(iv)        No
certificate, permit or license from any Governmental Entity having jurisdiction over any of the Parent Properties or any agreement,
easement or other right that is necessary to permit the lawful use and operation of the buildings and improvements on any of the
Parent Properties or that is necessary to permit the lawful use and operation of all parking areas, driveways, roads and other
means of egress and ingress to and from any of the Parent Properties has not been obtained and is not in full force and effect,
and neither Parent nor any Parent Subsidiary has received written notice of any threat of modification or cancellation of any such
certificate, permit or license, except for such notices, failures to obtain and to have in full force and effect, which would not,
individually or in the aggregate, constitute a Parent Material Adverse Effect.


 


(v)        Neither
Parent nor any Parent Subsidiary has received any written notice to the effect that (A) any condemnation or rezoning proceedings
are pending or threatened with respect to any of the Parent Properties, or (B) any zoning regulation or ordinance (including with
respect to parking), board of fire underwriters rules, building, fire, health or other Law, code, ordinance, Order or regulation
has been violated for any Parent Property, which in the case of clauses (A) and (B) would, individually or in the aggregate, constitute
a Parent Material Adverse Effect.


 


(vi)        Section
3.2(p) of the Parent Disclosure Letter lists as of the date hereof each ground lease to which Parent or any Parent Subsidiary is
party, as lessee or lessor. Each such ground lease is in full force and effect and is valid, binding and enforceable in accordance
with its terms against the lessor or lessee thereunder, as applicable, and, to the Knowledge of Parent, against the other parties
thereto, except as would not constitute, individually or in the aggregate, a Parent Material Adverse Effect. Except as would not
constitute, individually or in the aggregate, a Parent Material Adverse Effect, neither Parent nor any Parent Subsidiary, on the
one hand, nor, to the Knowledge of Parent, any other party, on the other hand, is in default under any such ground lease which
default is reasonably likely to result in a termination of such ground lease. No purchase option has been exercised under any of
such ground lease, except purchase options whose exercise has been evidenced by a written document as described in Section 3.2(p)
of the Parent Disclosure Letter. Parent has made available to Gadsden a correct and complete copy of each such ground lease and
all material amendments thereto.


 






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(vii)          Neither
Parent nor any Parent Subsidiary is a party to any agreement relating to the management of any of the Parent Properties by a party
other than Parent or any wholly-owned Parent Subsidiaries, except as disclosed Section 3.2(p) of the Parent Disclosure Letter.


 


(viii)        
Parent has made available to Gadsden true, correct and complete copies of the leases that Parent and its Subsidiaries, taken
as a whole, are party to as a landlord or lessor with respect to each of the applicable Parent Properties including all material
amendments, modifications, supplements, renewals, and extensions thereto, in each case as in effect on the date hereof (the “Parent
Leases”). Neither Parent nor any of the Parent Subsidiaries, nor to the Knowledge of Parent, any tenant, has received
written notification that they are in default under any Parent Lease, except for defaults that would not, individually or in the
aggregate, constitute a Parent Material Adverse Effect.


 


(q)           Insurance. Parent or its Subsidiaries maintains insurance coverage with reputable insurers, or maintains self-insurance
practices, in such amounts and covering such risks which in its good faith judgment are reasonable for the business of Parent and
the Parent Subsidiaries (taking into account the cost and availability of such insurance). There is no claim by Parent or any Parent
Subsidiary pending under any such policies which (i) has been denied or disputed by the insurer and (ii) would constitute, individually
or in the aggregate, a Parent Material Adverse Effect.


 


(r)            Brokers. No broker, investment banker or other Person is entitled to any brokers’, finders’ or other
similar finder’s fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Parent, any Parent Subsidiary or any Affiliate thereof.


 


(s)           Material Contracts.


 


(i)              All
of the Material Contracts of Parent as in effect as of the date hereof are listed in Section 3.2(s) of the Parent Disclosure Letter
or in the exhibit index set forth in a Covered Parent SEC Disclosure. Parent has, prior to the date hereof, made available to
Gadsden true and complete copies of each Material Contract as in effect as of the date hereof. All Material Contracts are valid,
binding and enforceable and in full force and effect with respect to Parent and the Parent Subsidiaries, and to the Knowledge
of Parent, with respect to each other party to any such Material Contract, except where such failure to be so valid, binding and
enforceable and in full force and effect do not and would not, individually or in the aggregate, constitute a Parent Material
Adverse Effect, and except, in each case, to the extent that enforcement of rights and remedies created by any Material Contracts
are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general application
related to or affecting creditors’ rights and to general equity principles.


 


(ii)             Except as set forth in Section 3.2(s) of the Parent Disclosure Letter, (A) neither Parent nor any Parent Subsidiary is in
violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice or
both would cause such a violation of or default under) any Material Contract to which it is a party or by which it or any of its
properties or assets is bound and (B) to the Knowledge of Parent, as of the date hereof, there are no such violations or defaults
(nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation
or default) by any third party to any Material Contract, except, in either the case of clause (A) or (B), for those violations
or defaults that, individually or in the aggregate, would not constitute a Parent Material Adverse Effect.


 



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(iii)            Section
3.2(s) of the Parent Disclosure Letter lists all agreements (other than agreements with respect to leases or subleases which contain
options to purchase) entered into by Parent or any Parent Subsidiary as of the date hereof providing for the sale of, or option
to sell, any Parent Properties or any material interest therein or the purchase of, or option to purchase, by Parent or any Parent
Subsidiary, on the one hand, or the other party thereto, on the other hand, any real estate or material interest therein not yet
consummated as of the date hereof.


 


(t)            Inapplicability of Takeover Statutes. Parent has taken all appropriate and necessary actions to exempt the Stock
Transaction, this Agreement and the other transactions contemplated thereby from the restrictions of any applicable provision of
a Takeover Statute. No other “control share acquisition”, “fair price”, “moratorium” or other
antitakeover Laws apply to the Stock Transaction, this Agreement or the other transactions contemplated hereby.


 


(u)           Investment Company Act of 1940. None of Parent or any Parent Subsidiary is, or after giving effect to the transactions
contemplated by this Agreement will be, required to be registered as an investment company under the Investment Company Act of
1940, as amended.


 


(v)           Solvency. Immediately prior to the Closing Time, assuming that the additional investment in Parent by a private fund
under its current agreement with such private fund is made, the fair value of the assets of the Parent (determined on a consolidated
basis), will exceed the debts and Liabilities as determined in accordance with GAAP, of Parent, on a consolidated basis.


 


		ARTICLE  IV.	COVENANTS
RELATING TO CONDUCT OF BUSINESS PENDING THE STOCK TRANSACTION



 


Section 4.1           
General Provisions.


 


During the period from
the date of this Agreement to the earlier of the termination of this Agreement or the Closing Time, each of (x) Gadsden on the
one hand, and (y) Parent on the other, shall, and shall cause each of their respective Subsidiaries to except as otherwise expressly
contemplated by this Agreement or to the extent consented to by the Parties in writing: (i) carry on its businesses in the usual,
regular and ordinary course substantially consistent with past practice and (ii) to the extent consistent with the foregoing clause
(i), use its commercially reasonable efforts to maintain and preserve intact in all material respects its current business organization,
goodwill, ongoing businesses and relationships with third parties, to keep available the services of their present officers and
employees. Notwithstanding the foregoing, each of the Parties may, directly or indirectly, engage in any Carve Out Activity.


 



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Section 4.2           
Specified Actions Not Permitted.


 


(a)           Without
limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the termination
of this Agreement or the Closing Time, except as required by applicable law, as otherwise expressly provided or permitted by this
Agreement, as set forth in Section 4.2 of the Gadsden Disclosure Letter or the Parent Disclosure Letter, as applicable, or a transaction
that is a Carve Out Activity, and except to the extent consented to by the Parties in writing (which consent shall not be unreasonably
withheld, delayed or conditioned), the Parties shall not and shall not authorize or commit or agree to, and shall cause their
respective Subsidiaries not to (and not to authorize or commit or agree to):


 


(i)            Distributions:


 


(A)            
declare, set aside for payment or pay any dividends on, or make any other actual, constructive or deemed distributions (whether
in cash, shares, property or otherwise) in respect of, any of shares, stock or the partnership interests, shares, stock or other
equity interests in any Subsidiary that is not directly or indirectly wholly owned by such Person, other than, in the case of Gadsden,
distributions that are required under the Articles Supplementary, as in effect on the date of this Agreement, for the Gadsden Series
A Preferred Shares or the Gadsden Series C Preferred Shares and, in the case of Parent and in the case of Gadsden, the accrual
(but not the cash payment) of dividends as contemplated by the certificate of designations for its outstanding series of preferred
stock,


 


(B)             
split, combine or reclassify any shares, stock, partnership interests or other equity interest or issue or authorize the
issuance of any securities in respect of, in lieu of or in substitution for shares of such shares, stock, partnership interests
or other equity interests, or


 





(C)             
purchase, redeem or otherwise acquire any capital stock, other equity interests or securities of such Person or the partnership
interests, stock, other equity interests or securities of any of its Subsidiaries or any options, warrants or rights to acquire,
or security convertible into, Gadsden Common Shares, stock, other equity interest or securities of such Person or the partnership
interests, stock or other equity interests in any of its Subsidiaries, except in each case to recover any such securities that
have been used as a deposit;


 


(ii)            Reclassifications:


 


(A)            
classify or re-classify any unissued shares of stock, units, interests, any other voting or redeemable securities or stock-based
performance units of such Person or any of its Subsidiaries,


 


(B)             
other than Permitted Issuances, authorize for issuance, issue, deliver, sell, or grant any shares of stock, units, interests,
any other voting or redeemable securities or stock-based performance units of such Person,


 






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(C)             other than Permitted Issuances, authorize for issuance, issue, deliver, sell, or grant any option or other right in respect of,
any shares of stock, units, interests, any other voting or redeemable securities, or stock-based performance units of such Person
or any securities convertible into, or any rights, warrants or options to acquire, any such shares, units, interests, voting securities
or convertible or redeemable securities,


 


(D)             amend or waive any option to acquire any shares of the capital stock or securities of such Person (except, with respect to clauses
(A), (B) and (C), (1) as required under the OPCO Agreement as presently in effect, in the case of Gadsden, or (2) in connection
with the exercise of Gadsden Awards or vesting or settlement of any Gadsden Awards or awards of Parent Common Stock, or


 


(E)              amend the Gadsden Charter or the Gadsden Bylaws or the Parent Charter or the Parent Bylaws, or any other comparable charter or
organizational documents of any Subsidiary of such Person;


 


(iii)          Sale or Dispositions:


 


(A)            
merge, consolidate or enter into any other business combination transaction with any Person,


 


(B)             acquire (by merger, consolidation or acquisition) any corporation, partnership or other entity other than to acquire a property
investment consistent with the investment strategy of such Person,


 


(C)             purchase any equity interest in or all or substantially all of the assets of, any Person or any division or business thereof,
or


 


(D)            
make, undertake or enter into any new commitments obligating such Person, or any Subsidiary of such Person, to make, capital
expenditures; provided however, any such Person may make, capital expenditures pursuant to the terms of contracts which have been
executed prior to the date hereof and in connection with amounts payable in respect of existing or future (1) tenant improvements,
(2) lease commissions, (3) obligations under leases, (4) maintenance, repairs and amounts required as a result of extraordinary
events or emergencies (collectively, the “Permitted Expenditures”), and (5) in the case of Gadsden, up to 110%
of the total amounts set forth as capital expenditures or development costs in the capital expenditure and development plan described
in Section 4.2 of the Gadsden Disclosure Letter (the “Capital Budget”);


 


(iv)            incur
indebtedness (secured or unsecured), except for draws under its existing line(s) of credit for purposes of:


 


(A)            
funding expenditures pursuant to the Capital Budget and Permitted Expenditures,


 



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(B)             funding other transactions permitted by this Article IV,


 


(C)             working
capital purposes in the ordinary course (including to the extent necessary to pay dividends permitted pursuant to Section 4.2,
for purposes of making payments to holders of any indebtedness and to pay any transaction expenses incurred in connection with
the Stock Transaction or the transactions contemplated by this Agreement),


 


(D)            sell, mortgage, subject to Lien, (or, in the case of an involuntary Lien, fail to take commercially reasonable action within
forty-five (45) days of the notice of creation thereof to attempt to have such Lien removed), lease (other than leases (other than
ground leases) as landlord or sublessor in the ordinary course of business) or otherwise dispose of any of the Gadsden Properties,
including by the disposition or issuance of equity securities in an entity that owns a Gadsden Property or a Parent Property (as
the case may be), except in each case: (A) made in the ordinary course of business, or (B) pursuant to a binding sales contract
in existence on the date of this Agreement and set forth in Section 4.2 of the Gadsden Disclosure Letter or Section 4.2 of the
Parent Disclosure Letter,


 


(E)             assume or guarantee the indebtedness of another Person other than a wholly owned Subsidiary of such Person, enter into any
“keep well” or other agreement to maintain any financial statement condition of another Person other than a wholly
owned Subsidiary of such Person, or enter into any arrangement having the economic effect of any of the foregoing,


 


(F)             prepay,
refinance or amend any existing indebtedness other than refinancings of existing indebtedness at maturity on customary commercial
terms,


 


(G)            make any loans, advances, capital contributions or investments in any other Person (other than wholly-owned Subsidiaries),


 


(H)            other than in connection with the incurrence of indebtedness permitted hereunder, pledge or otherwise encumber shares of
capital stock or securities in such Person or any Subsidiary of such Person,


 


(I)              modify,
amend or change any existing Tax Protection Agreement in a manner that would adversely affect such Person or any Subsidiary of
such Person, or enter into any new Tax Protection Agreement, or


 


(J)              except as required by Law or in the ordinary course of business, make or change any material Tax election, change any annual
Tax accounting period, adopt or change any method of Tax accounting, or file any amended Tax Return (in each case, except in the
case of Gadsden to the extent necessary or appropriate to elect to be taxed as a REIT or to preserve the status of any Gadsden
Subsidiary as a partnership, “qualified REIT subsidiary” or “taxable REIT subsidiary” for U.S. federal
income Tax purposes), if such action would have an adverse effect on Parent or Gadsden that is material;


 



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(v)          
Books and records; other actions:


 


(A)            
fail to maintain its books and records in all material respects in accordance with GAAP consistently applied,


 


(B)             change
any of its methods, principles or practices of financial accounting in effect, other than as required by GAAP,


 


(C)             settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy
relating to Taxes, other than settlements or compromises (1) relating to real property Taxes or sales Taxes in an amount not to
exceed $50,000, individually or in the aggregate, or (2) that do not result in a Tax liability of such Person or any Subsidiary
of such Person that materially exceeds the amount reserved, in accordance with GAAP, with respect to such claim, action, or other
proceeding, or


 


(D)            
revalue in any material respect any of its assets, including writing-off accounts receivable, except, in each of the foregoing
cases, as may be required by the SEC, applicable Law or GAAP (in which case, such Person shall promptly inform the other Parties
of such changes);


 


(vi)           Settle or compromise any material litigation, including any shareholder derivative or class action claims other than settlements
or compromises for litigation providing solely for the payment of money damages where the amount paid (after reduction by any insurance
proceeds actually received or appropriate credits are applied from self-insurance reserves) in settlement or compromise does not
exceed $50,000, which provide for a complete release of such Person and each applicable Subsidiary of such Person of all claims
and which do not provide for any admission of liability by such Person or any Subsidiary of such Person;


 


(vii)         Except as required by any employee benefit plan of such Person:


 


(A)            other than in connection with renewals of broad-based plans on substantially equivalent terms and other changes in broad-based
plans that do not increase the cost thereof in any material respect, amend, modify, alter or terminate any existing employee benefit
plan or adopt any new employee benefit plan, incentive plan, severance plan or agreement, bonus plan, compensation, special remuneration,
retirement, health, life, disability, stock option or other plan, program, agreement or arrangement that would be an employee benefit
plan of such Person if it had been in existence on the date hereof,


 



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(B)             grant any new Gadsden Awards or awards of Parent Common Stock, as the case may be,


 


(C)             materially increase the compensation, bonus or fringe or other benefits of, or pay any discretionary bonus of any kind or
amount whatsoever to, any current or former director, officer, employee or consultant,


 


(D)             other than in connection with the severance policy described in Section 4.2 of the Gadsden Disclosure Letter or Section 4.2 of
the Parent Disclosure Letter, grant or pay any severance or termination pay to, or increase in any material manner the severance
or termination pay of, any current or former director, officer, employee or consultant of Gadsden or any Gadsden Subsidiary, or
Parent or any Parent Subsidiary, as applicable,


 


(E)             
increase the number of its full-time permanent employees, or


 


(F)              establish,
pay, agree to grant or increase any stay bonus, retention bonus or any similar benefit under any plan, agreement, award or arrangement;


 


(viii)        Certain
other Material Actions:


 


(A)            
Other than in the ordinary course of business, amend or terminate, or waive compliance with the terms of or breaches under,
or assign any material rights or claims under, any material term of any Material Contract described in clause (iii), (iv) or (v)
of the definition thereof or clause (ii) of the definition thereof, or enter into a new contract, agreement or arrangement that
has a term of over 12 months or that, if entered into prior to the date of this Agreement, would have been a Material Contract
described in clause (iii), (iv or (v) of the definition thereof or clause (ii) of the definition thereof,


 


(B)             fail to use its commercially reasonable efforts to comply or remain in compliance with all material terms and provisions
of any agreement relating to any outstanding indebtedness of such Person or any Subsidiary of such Person (in each case after giving
effect to any applicable waivers),


 


(C)             fail to duly and timely file all material reports and other material documents required to be filed with all Governmental
Entities and other authorities, subject to extensions permitted by Law,


 


(D)            
except as provided in Section 5.6, authorize, recommend, propose, adopt or announce an intention to adopt a plan of complete
or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such Person
or any Subsidiary of such Person, or


 



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(E)              except in connection with a right being exercised by a tenant under an existing lease (and in accordance with the terms and conditions
thereof), enter into any new lease for in excess of 5,000 square feet of net rentable area at a Gadsden Property, or Parent Property,
as the case may be, other than in accordance with the ordinary course of business; or


 


(ix)           Agree
in writing or otherwise to take any action inconsistent with any of the foregoing.


 


ARTICLE
V. ADDITIONAL COVENANTS


 


Section 5.1           Preparation of Transaction 8K; Gadsden Shareholder Meeting.


 


(a)            Prompt Filing. As promptly as reasonably practicable following the date of this Agreement, but not later than four
(4) Business Days after the date of this Agreement, Parent shall prepare and file with the SEC the Transaction 8K, which will be
substantially in the form previously provided to Gadsden and comply with the Exchange Act in all material respects.


 


(b)            Call of Shareholder Meetings. Subject to Section 5.6(a), Gadsden will, as soon as practicable, but in no event more
than five (5) Business Days, following the date of this agreement, duly call, give notice of, and as soon as practicable convene
and hold the Gadsden Stockholder Meeting, for the purposes of obtaining the Gadsden Stockholder Approval. Gadsden will, through
the Gadsden Board of Directors, recommend to Gadsden stockholders approval of the Stock Transaction and the other transactions
contemplated hereby (the “Recommendation”).


 


(c)            Adjournment of Stockholder Meetings. If on the date of the Gadsden Stockholder Meeting, Gadsden has not received
proxies representing a sufficient number voting securities to approve the Stock Transaction, Gadsden shall adjourn its stockholder
meeting until such date as shall be determined in good faith by Gadsden, which date shall not be less than 5 days nor more than
10 days after the date of adjournment, and subject to the terms and conditions of this Agreement shall continue to use its commercially
reasonable efforts, together with its proxy solicitor (if any), to assist in the solicitation of proxies from stockholders relating
to such party’s stockholder approval at their stockholder meeting. A party shall only be required to adjourn or postpone
the its stockholder meeting one time pursuant to this Section 5.1(c).


 


(d)            Information Provided by Gadsden. Gadsden will promptly provide to Parent information that is required to be included
in the Transaction 8K with respect to Gadsden and its Subsidiaries and supplement such information as required. Such information
shall be subject to the representation and warranty of Gadsden under Section 3.1(u).


 






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Section 5.2           
Access to Information; Confidentiality and Confidentiality Agreement.


 


(a)            Maintenance
of Information. Each party hereto and its respective Subsidiaries shall afford to the other party and such other party’s
officers, employees, accountants, counsel, financial advisors and other representatives and Affiliates, reasonable access during
normal business hours and upon reasonable advance notice to all of its properties, offices, books, contracts, commitments, personnel
and records, and, during such period, shall furnish reasonably promptly to such other party: (i) information responsive to any
information request by a party (ii) a copy of each report, schedule, registration statement and other document filed by it during
such period pursuant to the requirements of federal or state securities Laws; and (ii) all other information (financial or otherwise)
concerning its business, properties and personnel as such other party may reasonably request. Notwithstanding the foregoing, no
Person shall be required by this Section 5.2 to provide any other party or such party’s representatives with any information
that such party reasonably believes it may not provide to any other party by reason of applicable Law which constitutes information
protected by attorney/client privilege, or which such party is required to keep confidential by reason of contract, agreement
or understanding with third parties. Such other party shall, in the exercise of the rights described in this Section 5.2(a), not
unduly interfere with the operation of the businesses of the party providing the access and information.


 


(b)            Continuation of Confidentiality Agreement. Each of the Parent and Gadsden will hold, and will cause its respective
officers, employees, accountants, counsel, financial advisors and other representatives and Affiliates to hold, any nonpublic information
in confidence to the extent required by, and in accordance with, and will otherwise comply with the terms of the letter agreement
between Parent and Gadsden dated as of July 28, 2018 (as may be amended, the “Confidentiality Agreement”).


 


Section 5.3           
Reasonable Efforts.


 


(a)            Mutual Obligation. Upon the terms and subject to the conditions set forth in this Agreement, each of Parent and Gadsden
agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to fulfill all conditions applicable
to such party pursuant to this Agreement and to consummate and make effective, as promptly as reasonably practicable, the Stock
Transaction and the other transactions contemplated by this Agreement, including


 


(i)               the
obtaining of all necessary, proper or advisable actions or nonactions, waivers, consents and approvals from Governmental Entities
and other third parties and the making of all necessary, proper or advisable registrations, filings and notices and the taking
of all reasonable steps as may be necessary to obtain an approval, waiver, consent or exemption from any Governmental Entity,


 


(ii)              the obtaining of all necessary, proper or advisable consents, approvals, waivers or exemptions from non-governmental third
parties,


 


(iii)             the execution and delivery of any additional documents or instruments necessary, proper or advisable to consummate the transactions
contemplated by, and to fully carry out the purposes of this Agreement, and


 



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(iv)            
the obtaining of customary tenant estoppels with respect to the Gadsden Leases, the Parent Leases, or other reasonable requests
for estoppels, provided, that the failure to obtain any such estoppels shall not be considered to be a breach of this Agreement.


 


(b)            Notice of Certain Events. Gadsden shall give prompt notice to Parent and Parent shall give prompt notice to Gadsden,
if:


 


(i)                any
representation or warranty made by it contained in this Agreement that is qualified as to materiality becomes untrue or inaccurate
in any respect or any such representation or warranty that is not so qualified becomes untrue or inaccurate in any material respect
such that the applicable closing conditions are incapable of being satisfied by the Termination Date, or


 


(ii)              
it fails to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied
by it under this Agreement such that the applicable closing conditions are incapable of being satisfied by the Termination Date;
provided, that no such notification shall affect the representations, warranty, covenants or agreements of the parties or
the conditions to the obligations of the parties under this Agreement.


 


Section 5.4           
Transfer Taxes.


 


Gadsden shall prepare,
execute and file, or cause to be prepared, executed and filed, all returns, questionnaires, applications or other documents regarding
any real property transfer or gains, sales, use, transfer, value added stock transfer and stamp Taxes, any transfer, recording,
registration and other fees and any similar Taxes which become payable in connection with the transactions contemplated by this
Agreement other than any such Taxes that are solely the responsibility of the holders of any class or series of capital stock of
Gadsden under applicable Law (together, with any related interest, penalties or additions to Tax, “Transfer and Gains
Taxes”). Gadsden shall pay or cause to be paid all such Transfer and Gains Taxes (other than any such Taxes that are
solely the responsibility of the holders of any class or series of capital stock of Gadsden under applicable Law), without any
deduction or withholding from the Parent Securities.


 



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Section 5.5          
Solicitation of Transactions.


 


(a)           Competing Transaction.


 


(i)                Except
as may be agreed by Parent and Gadsden in a supplement to this Agreement and subject to Section 5.6, during the Exclusivity Period,
no party nor any Subsidiary of a party shall, nor shall it authorize or permit, directly or indirectly, any officer, director,
employee, agent, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of
a party or any other Subsidiary of a party to (x) initiate, solicit, knowingly encourage or facilitate (including by way of furnishing
nonpublic information or assistance) any inquiries or the making of any proposal or offer or other action, including any proposal
or offer to its stockholders that constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (y) engage
in, continue or otherwise participate in any discussions or negotiations with any Person regarding, or furnish in furtherance
of such inquiries or to obtain a Competing Transaction, or (z) otherwise enter into or effectuate a Competing Transaction. Each
party shall take, and shall cause each Subsidiary of such party to take, all actions reasonably necessary to cause their respective
officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives
or Affiliates to, immediately cease any discussions, negotiations or communications with any party or parties with respect to
any Competing Transaction; provided, that nothing in this sentence shall preclude Parent or Gadsden, as the case may be,
or any Subsidiary of such Person or their respective officers, trustees, directors, employees, investment bankers, financial advisors,
attorneys, brokers, finders and any other agents, representatives or Affiliates from complying with the provisions of Section
5.5(a)(ii). Each party and each Subsidiary of such party shall be responsible for any failure on the part of their respective
officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives
or Affiliates to comply with this Section 5.5(a). Each party acknowledges that, effective as of the date of this Agreement, the
other party waives all standstill or similar provisions of any agreement, letter or understanding for the benefit of it or any
of its Subsidiaries that would in any way prohibit any Person from making or otherwise facilitate the making of a proposal with
respect to a Competing Transaction. Each party represents and warrants that neither it nor any of its Affiliates is currently
engaged in any Competing Transaction.


 


(ii)              Each
party shall request each Person that has heretofore executed a confidentiality agreement in connection with its consideration
of acquiring (whether by merger, acquisition, stock sale, asset sale or otherwise) such party or any Subsidiary of such party,
or any material position of their assets, if any, to return or destroy all confidential information heretofore furnished to such
Person by or on behalf of such party or its applicable Subsidiary.


 


(b)           Notice of a Competing Transaction. Each party shall notify the other party of, promptly following receipt, all relevant
details relating to any proposal (including the identity of the parties and all material terms thereof) which any such party, or
any of its Subsidiaries, or any officer, director, employee, agent, investment banker, financial advisor, attorney, broker, finder
or other representative or Affiliate of such party, may receive after the date of this Agreement relating to a Competing Transaction
and shall keep such other party reasonably informed on a prompt basis as to the status of and any material developments regarding
any such proposal.


 


(c)           Definition of Competing Transaction. For purposes of this Agreement, a “Competing Transaction”
means any of the following (other than the transactions expressly provided for in this Agreement): (i) any merger, consolidation,
share exchange, business combination or similar transaction involving the applicable party or its Subsidiaries; (ii) any sale,
lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the cost basis of the assets (including by means
of an issuance, sale or other disposition of voting securities) of the applicable party or its Subsidiaries, taken as a whole,
or of 20% or more of any class of voting securities of the applicable party or its Subsidiaries (as a whole), in a single transaction
or series of related transactions, excluding any bona fide financing transactions that do not, individually or in the aggregate,
have as a purpose or effect the sale or transfer of control of such assets; or (iii) any tender offer or exchange offer for 20%
or more of any class of voting securities of the applicable party or its Subsidiaries (as a whole).


 



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(d)           Definition of Superior Competing Transaction. For purposes of this Agreement, a “Superior Competing Transaction”
means a bona fide unsolicited written proposal for a Competing Transaction made by a third party that the board of directors of
Parent or Gadsden, as applicable, determines (after taking into account any amendments to this Agreement entered into or which
such Person (or any of its Subsidiaries) irrevocably covenants to enter into and for which all internal approvals of such Person
have been obtained prior to the date of such determination), in good faith and after consultation with its financial and legal
advisors, is: (i) on terms that are more favorable, taking into account financial terms, the conditions to the consummation thereof
and the likelihood of the Competing Transaction proposal being consummated, to such Person and its stockholders than the Stock
Transaction and the other transactions contemplated by this Agreement; and (ii) is expected to provide economic consideration to
such Person that is at least 20% more than economic consideration that is expected to be provided to such Person by the consummation
of the Stock Transaction.


 


Section 5.6          
Board Actions.


 


(a)           Consideration of a Superior Offer. Notwithstanding Section 5.5 or any other provision of this Agreement to the contrary,
following the receipt by Parent or Gadsden (or Subsidiary of such Person), as the case may be, of a proposal from a third party
for a Competing Transaction (which was not solicited, encouraged or facilitated in violation of Section 5.5), if the board of directors
of such Person determines in good faith following consultation with its legal and financial advisors that such proposal for a Competing
Transaction is or is reasonably likely to lead to a Superior Competing Transaction, such Persons board of directors may (directly
or through officers or advisors):


 


(i)               furnish
nonpublic information with respect to such Person (or its Subsidiaries) to the Person that made such proposal (provided that such
Person shall furnish such information pursuant to a confidentiality agreement unless the third party is already a party thereto),


 


(ii)              disclose to such Person’s stockholders any information required to be disclosed under applicable Law,


 


(iii)             participate in discussions and negotiations regarding such proposal, and


 


(iv)            following receipt of a proposal for a Competing Transaction that constitutes a Superior Competing Transaction, (A) withdraw
or modify in a manner adverse to the other party, the resolutions of the board of directors of Parent that approve the Stock Transaction,
or, in the case of Gadsden, the Recommendation, or recommend that the Parent stockholders or Gadsden stockholders, as the case
may be, to approve such Superior Competing Transaction, (B) terminate this Agreement pursuant to and subject to compliance with,
Section 7.1(g) and (C) take any action that any court of competent jurisdiction orders such party to take.


 



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(v)             Nothing in this Section 5.6 or elsewhere in this Agreement shall prevent the board of directors of a party from complying
with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (assuming that such party is subject to such Rules under the
Exchange Act) with respect to a Competing Transaction or from issuing a stop, look and listen announcement or otherwise making
any required disclosure to its stockholders if, in the good faith judgment of the board of directors of such party, after consultation
with outside legal counsel, failure to do so would be inconsistent with its obligations under applicable Law, including Rule 14d-9
promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither such party or such party’s
board of directors shall be permitted to recommend a Competing Transaction which is not a Superior Competing Transaction.


 


(b)           Notice of a Superior Offer. A party’s board of directors shall not take any of the actions referred to in Section
5.6(a)(iv):


 


(i)              until
at least three (3) Business Days after giving notice to the other party that the Competing Transaction constitutes a Superior
Competing Transaction (a “Superior Notice”) accompanied by a copy of the form of definitive agreement (if any)
that is proposed to be entered into in respect of the Competing Transaction, and


 


(ii)             unless such party’s board of directors shall have concluded following the end of such three (3) Business Day period
that, taking into account any amendment to this Agreement entered into or that the other party irrevocably covenants to enter into
and for which all internal approvals of such other party have been obtained since receipt of such notice, in each case, prior to
the end of such three Business Day period, such Superior Competing Transaction remains a Superior Competing Transaction.


 


Section 5.7           
Public Announcements.


 


Gadsden and Parent
shall consult with each other before issuing any press release or otherwise making any public statements or filings with respect
to this Agreement or any of the transactions contemplated hereby and shall not issue any such press release or make any such public
statement or filing without the prior consent of the other party, which consent shall not be unreasonably withheld or delayed;
provided, however, that a party may, without the prior consent of the other party, issue such press release or make such public
statement or filing as may be required by Law if it has used its commercially reasonable efforts to consult with the other party
and to obtain such party’s consent but has been unable to do so prior to the time such press release or public statement
or filing is required to be released, filed or furnished pursuant to such Law.


 


Section 5.8           
Employee Arrangements.


 


As of the Closing Date,
Parent shall employ all of the employees of Gadsden on the substantially the same terms and conditions, other than the grant of
equity incentive, which programs shall remain an obligation of Gadsden.


 



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Section 5.9           
Indemnification; Directors’ and Officers’ Insurance.


 


(a)           Indemnified Parties. In the event of any threatened or actual claim, action, suit, demand, proceeding or investigation,
whether civil, criminal or administrative, including any such claim, action, suit, proceeding or investigation in which any Person
who is now, or has been at any time prior to the date hereof, or who becomes prior to the Closing Time, a director or officer,
general partner or member of a party or any Subsidiary of any party (each, an “Indemnified Party” and collectively,
the “Indemnified Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising
in whole or in part out of, or pertaining to (i) the fact that he or she is or was a director, officer, general partner or member
of a party or any Subsidiary of any party, or is or was serving at the request of a party or any Subsidiary of any party in any
such capacity of another corporation, partnership, joint venture, trust or other enterprise, in each case, at or prior to the Closing
Time; or (ii) the negotiation, execution or performance of this Agreement, any agreement or document contemplated hereby or delivered
in connection herewith, or any of the transactions contemplated hereby, from and after the Closing Time, Parent (“Indemnitor”),
shall indemnify and hold harmless, as and to the fullest extent permitted by Law, each Indemnified Party against any losses, claims,
damages, Liabilities, costs, expenses (including reasonable attorneys’ and other professional fees and expenses), judgments,
fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, demand, proceeding or
investigation, and in the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted
before or after the Closing Time), the Indemnitor, shall promptly (but in any event within ten (10) calendar days of written request)
advance expenses pending the final disposition of any such threatened or actual claim, action, suit, demand, proceeding or investigation
to each Indemnified Party to the fullest extent not prohibited by applicable Law.


 


(b)           Irrevocable Benefit. This Section 5.9 is intended for the irrevocable benefit of, and to grant third-party rights
to, the Indemnified Parties and shall be binding on all successors and assigns of Parent and Gadsden. Each of the Indemnified Parties
shall be entitled to enforce the covenants contained in this Section 5.9.


 


(c)           Continuation of Benefits. In the event that Parent (i) consolidates with or merges into any other Person or entity
and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers or conveys all or substantially
all of its properties and assets to any person or entity, then, and in each such case, proper provision shall be made so that such
continuing or surviving entity or transferee, as the case may be, assumes the obligations set forth in this Section 5.9.


 






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Section 5.10       
Final Adjustment to Parent Shares issuable in Stock Transaction.


 


(a)           The
number of shares of Parent Common Stock being issued to Gadsden at the Closing is based upon an estimated Deemed NAV of Gadsden
equal to $211,573,001 (the “Contract NAV”), which is based on the sum of Gadsden’s (i) acquired assets
as of the date of this Agreement (“Acquired Assets”) and (ii) the proposed real estate investments of Gadsden
that have not closed as of the date of this Agreement (such investments being the “Scheduled Investments” and,
together with the Acquired Assets, the “Gadsden Assets”). On or before April 15, 2021, the Board of Directors
of Parent shall recalculate the Deemed NAV of Gadsden (the “Final Gadsden NAV”) using the Fair Value (as defined
below) of each of the Gadsden Assets that have been acquired by Gadsden or Parent on or prior to May 15, 2019 as at December 31,
2019 or December 31, 2020 with the year of determination being at the option of Gadsden. The final Deemed NAV of Parent (the “Final
Parent FV”) for the purposes of this Agreement shall be equal to $7,500,000. The amount equal to the Final Gadsden NAV
and the Final Parent FV is referred to as the “Final Combined Value”. The purpose of this Section 5.10 is to
allocate the Final Combined Value between Gadsden and Parent, which shall be as follows:


 


(i)                The Final Combined Value allocated to Gadsden shall be equal to (A) Final Gadsden NAV divided by (B) the Final Combined
Value (the “Final Ratio of Gadsden”); and


 


(ii)              
The Final Combined Value allocated to Parent shall be equal to 1 minus the Final Ratio of Gadsden.


 


(b)           Promptly,
and in any event within fifteen (15) days, following the filing by Parent of its Annual Report on Form 10-K for the fiscal year
ended December 31, 2019 or December 31, 2020 (with the election of which year to utilize being at Gadsden’s discretion),
Parent shall provide its calculation to the Parent Post Transaction Committee, who shall review such calculation and either confirm
its agreement with such calculation or object to such calculation providing the reasons for such objection within ten (10) days
of its receipt of such calculation.


 


(c)           If the Board of Directors of Parent and the Parent Post Transaction Committee cannot agree within such ten (10) day period,
then they shall follow the dispute resolution procedures outlined in Article VIII for finally determining a Loss Estimate.


 


(d)           If the Final Gadsden NAV is less than the Contract NAV of Gadsden, then the difference (“NAV Shortfall Amount”)
shall be resolved for the benefit of the Loss Stakeholders as follows:


 


(i)               First, a number of shares of Parent Common Stock that are held in the Gadsden Specified Account equal to 3.771023733 shares
of Parent Common Stock for each $1.00 of the NAV Shortfall Amount shall be transferred and assigned by Gadsden to Parent and shall
be cancelled by Parent; and


 


(ii)              Second, if the value of the number of shares of the Parent Common Stock transferred and assigned under Section 5.10(d)(i)
(at 3.771023733 per $1.00) is less than the NAV Shortfall Amount (such excess value being the “NAV Excess Shortfall Amount”),
then Parent shall issue a number of shares of Parent Common Stock to the Loss Stakeholders equal to 3.771023733 for each $1.00
of the NAV Excess Shortfall Amount; provided, however, that if the Final Gadsden NAV is less than $80 million then solely for the
NAV Excess Shortfall Amount that is below $80 million, instead of using a multiplier of 3.771023733 for each $1.00 of the NAV Excess
Shortfall Amount a multiplier of 2.860407207 for each $1.00 of NAV Excess Shortfall Amount below $80 million shall apply.


 



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(iii)          In
the event that Parent issues shares of Parent Common Stock in accordance with Section 5.10(d)(ii), then to the extent necessary
to comply with the Securities Act, Parent will register such shares of Parent Common Stock prior to distributing such shares to
the Loss Stakeholders. Parent shall use its best efforts to file any such required registration statement within forty-five (45)
days of determining the Final Gadsden NAV and shall use its best efforts to cause such registration statement to be declared effective
within 150 days of determining the Final Gadsden NAV.


 


(e)            For
the purposes of this agreement, “Deemed NAV” shall mean the aggregate Fair Value of each of the real estate
assets of a Person; provided, however, that


 


(i)            in
the case of Parent, “Deemed NAV” shall mean $7,500,000 regardless of any adjustment that may be provided for
in Section 5.10 or in any other provision of this Agreement; and


 


(ii)           in
the case of determining the “Deemed NAV” of each real estate asset of Gadsden as of the Closing Date for the
purposes of this Section 5.10, the real estate portfolio:


 


(A)          shall
be computed on a per Gadsden Asset basis;


 


(B)          shall
include all of the Gadsden Assets that have been acquired prior to May 20, 2019 whether or not such assets are subsequently sold,
transferred, assigned or otherwise disposed of;


 


(C)          shall
not include any liabilities or obligations payable to Parent or any of its Affiliates;


 


(D)          shall
be the estimated Fair Value of each Gadsden Asset as of the date of this Agreement determined by Gadsden in good faith based upon
what it expects the Fair Value of the Gadsden Asset to ultimately be; and


 


(E)          shall
assume that Gadsden owns 100% of Gadsden Roseville LLC without any reduction for the Series A Preferred limited liability company
interests that were issued by such company.


 


(f)          The
“Fair Value” of any Gadsden Asset shall be equal to the aggregate amount of the following for each of the Gadsden
Assets that have been acquired by Gadsden or Parent on or prior to May 20, 2019: (i) the value of the real estate asset less (ii)
the liabilities of Gadsden that are secured by such real estate portfolio, including, without limitation, tax liabilities and other
liabilities such as those in favor of mechanics that are entitled to a security interest on a property by operation of law. The
value of each real estate asset shall be determined as follows: (i) in accordance with GAAP and shall be derived from Parent’s
annual report on Form 10-K for either of the fiscal years ended December 31, 2019 or December 31, 2020 with Gadsden having the
option to choose which such fiscal year to utilize, (ii) as of the date of an appraisal from a licensed appraiser with knowledge
of the applicable market that need not be a national firm and that is mutually consented to by Parent and Parent Post Transaction
Committee, which consent shall not be unreasonably withheld, conditioned or delayed, or (iii) if the Gadsden Asset is sold or otherwise
disposed of in consideration for cash, the gross cash proceeds from the sale minus any indebtedness or other liabilities relating
to the Gadsden Asset being sold or otherwise disposed of that were not assumed by the purchaser and that remain indebtedness or
other liabilities of the Parent following the sale or other disposition. In determining “Fair Value” the items described
in (A), (B), (C) and (E) of the definition of Deemed NAV shall also apply.


 






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Section 5.11           Parent Board as of the
Closing Date.


 


Parent shall take such
actions as is necessary, which may include accepting the resignations of directors or removing directors without cause and filling
the vacancies on the board of directors of Parent so that as of the Closing Time, the Parent Board shall consist of (i) the current
members of the Board of Directors of Gadsden and (ii) Dolev Rafaeli and Dennis M. McGrath.


 


Section 5.12           Gadsden Board as of the
Closing Date.


 


Gadsden shall take
such actions as is necessary, which may include accepting the resignations of directors or removing directors without cause and
filling the vacancies on the board of directors of Gadsden so that as of the Closing Time, the Gadsden Board shall consist of the
same members as the Parent Board described in Section 5.11.


 


Section 5.13           Amendment to the Parent
Charter.


 


Promptly after the
date of this Agreement, Parent will cause the Parent Charter to be amended or file a certificate of designation to authorize the
Parent Series A Stock, the Parent Series B Stock and the Parent Series C Stock to be issued at the Closing and such additional
shares as may be agreed by Parent and Gadsden.


 


Section 5.14           Payment of Accrued
Parent Board Fees and Designation of Stock Transaction as Change of Control for Employment Agreement.


 


(a)          Gadsden
acknowledges that Parent owes its board of directors accrued board fees in the approximate amount of $500,000 as of December 31,
2018. Gadsden agrees that Parent shall pay to its board of directors (including those directors who are resigning at the Closing)
one-half of all accrued board fees and that Parent shall pay the balance of such accrued board fees in equal monthly installments
over a six-month period following the Closing. The members of the board of directors who are owed such accrued board fees are intended
third party beneficiaries of this Section 5.14(a).


 


(b)          Gadsden
acknowledges that for purposes of that certain Employment Agreement, dated June 20, 2019, between Parent and Michael R. Stewart
(the “Employment Agreement”) that the Stock Transaction constitutes a Change of Control (as defined in the Employment
Agreement) and, as a result, Mr. Stewart will be entitled to (and shall) terminate the Employment Agreement for Good Reason (as
defined in the Employment Agreement) and Mr. Stewart shall be entitled to receive (and Parent shall pay to Mr. Stewart) at the
Closing those amounts as are required to be paid by Parent to Mr. Stewart upon a termination of the Employment Agreement for Good
Reason. Mr. Stewart is an intended third party beneficiary of this Section 5.14(b).


 






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ARTICLE
VI. CONDITIONS PRECEDENT


 


Section 6.1             Conditions to Each Party’s
Obligation to Effect the Stock Transaction.


 


The respective obligations
of Gadsden, and Parent to affect the Stock Transaction and to consummate the other transactions contemplated by this Agreement
on the Closing Date are subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:


 


(a)          Stockholder
Approval. The Gadsden Stockholder Approval of the Stock Transaction and shall have been obtained.


 


(b)          No
Injunctions or Restraints. No temporary restraining order, preliminary or permanent injunction or other Order issued by any
court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Stock Transaction or
any of the other transactions or agreements contemplated by this Agreement shall be in effect.


 


(c)          Admission
for Trading of Parent Common Stock. The Parent shall have filed a Company-Related Action Notification Form with the Financial
Industry Regulatory Authority Operations at least ten (10) days prior to the Closing Time and otherwise complied with the notice
requirements of Rule 6490 of the Financial Industry Regulatory Authority.


 


Section 6.2             Conditions to Obligations
of Parent.


 


The obligations of
the Parent to affect the Stock Transaction and to consummate the other transactions contemplated by this Agreement on the Closing
Date are further subject to the following conditions, any one or more of which may be waived by Parent:


 


(a)          Representations
and Warranties. The representations and warranties of Gadsden shall be true and correct (without regard to any materiality
or Gadsden Material Adverse Effect qualifier contained therein), except where the failure of such representations and warranties
to be so true and correct would not reasonably be expected to constitute, individually or in the aggregate, a Gadsden Material
Adverse Effect, in each case as of the Closing Date as if made on and as of the Closing Date (except to the extent that any such
representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date).


 


(b)          Performance
of Covenants and Agreements of Gadsden. Gadsden shall have performed in all material respects all covenants and agreements
required to be performed by them under this Agreement at or prior to the Closing Time.


 


(c)          Material
Adverse Change. Since the date of the Gadsden Balance Sheet, except as set forth in (i) any Covered Gadsden Disclosure or (ii)
in any section of the Gadsden Disclosure Letter, there has not been a Gadsden Material Adverse Effect.


 






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(d)          Certificate.
Parent shall have received a certificate signed on behalf of Gadsden by an executive officer of Gadsden to the effect specified
in Sections 6.2(a), 6.2(b) and 6.2(c).


 


(e)          Legal
Opinion. Parent shall have received a legal opinion of counsel to Gadsden with respect to such matters are as customary for
such transactions.


 


(f)          Consents.
All consents, approvals and authorizations legally required to be obtained to consummate the Stock Transaction shall have been
obtained from and made with all Governmental Entities and all consents for all material agreements, contracts, licenses, leases
or other instruments (as listed on the Gadsden Disclosure Letter) to which Gadsden is a party or is bound which is required as
a result of the transactions contemplated by this Agreement or the Stock Transaction shall have been obtained.


 


Section 6.3             Conditions to Obligations
of Gadsden.


 


The obligations of
Gadsden to affect the Stock Transaction and to consummate the other transactions contemplated by this Agreement on the Closing
Date are further subject to the following conditions, any one or more of which may be waived by Gadsden:


 


(a)          Representations
and Warranties. The representations and warranties of Parent shall be true and correct (without regard to any materiality or
Parent Material Adverse Effect qualifier contained therein), except where the failure of such representations and warranties to
be so true and correct would not reasonably be expected to constitute, individually or in the aggregate, a Parent Material Adverse
Effect, in each case as of the Closing Date as if made on and as of the Closing Date (except to the extent that any such representation
or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date).


 


(b)          Performance
of Covenants and Agreements of Parent. Parent shall have performed in all material respects all covenants and agreements required
to be performed by them under this Agreement at or prior to the Closing Time.


 


(c)          Material
Adverse Change. Since the date of the Parent Balance Sheet, except as set forth in (i) any Covered Parent SEC Disclosure or
(ii) in any section of the Parent Disclosure Letter, there has not been a Parent Material Adverse Effect.


 


(d)          Certificate.
Gadsden shall have received a certificate signed on behalf of Parent by an executive officer of Parent to the effect specified
in Sections 6.3(a), 6.3(b) and 6.3(c).


 


(e)          Legal
Opinion. Gadsden shall have received a legal opinion of counsel to Parent with respect to such matters are as customary for
such transactions.


 


(f)          Consents.
All consents, approvals and authorizations legally required to be obtained to consummate the Stock Transaction shall have been
obtained from and made with all Governmental Entities and all consents for all material agreements, contracts, licenses, leases
or other instruments (as listed on the Parent Disclosure Letter) to which Parent is a party or is bound which is required as a
result of the transactions contemplated by this Agreement or the Stock Transaction shall have been obtained.


 






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(g)          Unrestricted
Cash. Parent shall have, on a consolidated basis, not less than $800,000 of unrestricted cash minus the amounts payable at
the Closing pursuant to Section 5.14 of this Agreement.


 


(h)          Resignation
Letters. Parent shall have received from each member of the Parent Board of Directors, other than the directors that are to
be a member of the Parent Board of Directors after the Closing Time in accordance with Section 5.11, a letter resigning from such
position.


 


ARTICLE
VII. TERMINATION, AMENDMENT AND WAIVER


 


Section 7.1             Termination.


 


This Agreement may
be terminated at any time prior to the Closing Time:


 


(a)          Mutual
Consent. By mutual written consent of Gadsden and Parent duly authorized by their respective boards of directors.


 


(b)          Termination
Date. By either Gadsden or Parent if the Stock Transaction shall not have occurred on or prior to March 31, 2019 (the “Termination
Date”); provided, that a party that has materially failed to comply with any obligation of such party set forth
in this Agreement shall not be entitled to exercise its right to terminate under this Section 7.1(b).


 


(c)          Gadsden.
By Gadsden, upon a breach of any representation, warranty, covenant or agreement on the part of Parent set forth in this Agreement,
or if there shall have been a Parent Material Adverse Effect.


 


(d)          Parent.
By Parent, upon a breach of any representation, warranty, covenant or agreement on the part of Gadsden set forth in this Agreement,
or if there shall have been a Gadsden Material Adverse Effect.


 


(e)          Order.
By either Gadsden or Parent, if any Order by any Governmental Entity of competent authority preventing the consummation of the
Stock Transaction shall have become final and nonappealable.


 


(f)          Stockholder
Consent. By either Gadsden or Parent if upon a vote at the Gadsden Stockholder Meeting (after giving effect to any adjournment
contemplated by Section 5.1(c)), the Gadsden Stockholder Approval shall not have been obtained, as contemplated by Section 5.1;


 


(g)         Superior
Offer.


 


(i)          By
Parent, if, in accordance with Section 5.6(b), at least three (3) Business Days prior to such termination, Parent has delivered
a Superior Notice; provided, that for the termination to be effective Parent shall have paid the Break-Up Fee in accordance
with this Agreement; or


 






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(ii)          By
Gadsden, prior to the Gadsden Stockholder Approval, if, in accordance with Section 5.6(b), at least three (3) Business Days prior
to such termination, Gadsden has delivered a Superior Notice; provided, that for the termination to be effective Gadsden
shall have paid the Break-Up Fee in accordance with this Agreement, if such fee is then payable.


 


(h)           Modification
of Terms.


 


(i)          By
Gadsden if the Parent Board of Directors shall have withdrawn, qualified or modified in a manner adverse to Gadsden, or shall recommend
that the stockholders of Parent approve or accept a Competing Transaction, or if Parent shall have delivered a Superior Notice
or shall have publicly announced a decision to take any such action (it being agreed that none of the actions permitted by Section
5.6(a)(i), (ii) or (iii), or the public disclosure of any activities in connection therewith shall give rise to a right of termination
hereunder), or


 


(ii)          By
Parent if


 


(A)          the
Gadsden Board of Directors shall have withdrawn, qualified or modified in a manner adverse to Parent, or shall have failed to make
when required, the Recommendation or shall recommend that the stockholders of Gadsden approve or accept a Competing Transaction,
or if Gadsden shall have delivered a Superior Notice or shall have publicly announced a decision to take any such action (it being
agreed that none of the actions permitted by Section 5.6(a)(i), (ii) or (iii), or the public disclosure of any activities in connection
therewith shall give rise to a right of termination hereunder), or


 


(B)          Gadsden
shall have knowingly and materially breached its obligation under Section 5.1(a) or Section 5.1(b) to call or hold the Gadsden
Stockholder Meeting.


 


(i)          Termination
Notice. A terminating party shall provide written notice of termination to the other parties specifying with particularity
the basis for such termination. If more than one provision in this Section 7.1 is available to a terminating party in connection
with a termination, a terminating party may rely on any or all available provisions in this Section 7.1 for any such termination.
Notwithstanding the foregoing, neither party shall be entitled to receive more than one Break-Up Fee and neither party shall be
entitled to claim this Agreement was terminated pursuant to more than one provision of this Section 7.1 in determining the amount
of payments it is entitled to under Section 7.2.


 


Section 7.2             Break-Up Fees and Expenses.


 


(a)          Each
Party Bears Its Own Expenses. Except as otherwise agreed in writing by the parties, all out-of-pocket costs and expenses incurred
in connection with this Agreement, the Stock Transaction and the other transactions contemplated hereby and by this Agreement shall
be paid by the party incurring such cost or expense.


 






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(b)          Break
Up Fee by Parent. Parent agrees that if this Agreement shall be terminated pursuant to Section 7.1(g)(i), Section 7.1(h)(i)
or Section 7.1(c) (but only if the termination under Section 7.1(c) is the result of an uncured breach by Parent of Section 6.3(g)
(Unrestricted Cash)) then Parent will pay to Gadsden, or as directed by Gadsden, an amount equal to the Break-Up Fee; provided,
that, in either case, the applicable amount shall be paid promptly, but in no event later than five (5) Business Days after such
termination. Parent also agrees that if this Agreement is terminated pursuant to Section 7.1(f) and (i) after the date hereof and
prior to such termination, a Person (or any representative of such Person) has made any bona fide written proposal relating to
a Competing Transaction which has been publicly announced prior to the termination of this Agreement and (ii) within twelve months
of any such termination Parent or any Subsidiary of Parent shall consummate a Competing Transaction, or enter into a written agreement
with respect to a Competing Transaction that is ultimately consummated, with any Person, then Parent shall pay to Gadsden, or as
directed by Gadsden, promptly after consummating such Competing Transaction (but in no event later than five (5) Business Days
following such consummation), an amount equal to the Break-Up Fee. Payment of any of such amounts shall be made, as directed by
Gadsden, by wire transfer of immediately available funds.


 


(c)          Break
Up Fee by Gadsden. Gadsden agrees that if this Agreement shall be terminated pursuant to Section 7.1(g)(ii) or Section 7.1(h)(ii),
then Gadsden will pay to Parent, or as directed by Parent, an amount equal to the Break-Up Fee; provided, that, in either
case, the applicable amount shall be paid promptly, but in no event later than five (5) Business Days after such termination. Gadsden
also agrees that if this Agreement is terminated pursuant to Section 7.1(f) and (i) after the date hereof and prior to such termination,
a Person (or any representative of such Person) has made any bona fide written proposal relating to a Competing Transaction which
has been publicly announced prior to the Gadsden Stockholder Meeting and (ii) within twelve months of any such termination Gadsden
or any Subsidiary of Gadsden shall consummate a Competing Transaction, or enter into a written agreement with respect to a Competing
Transaction that is ultimately consummated, with any Person, then Gadsden shall pay to Parent, or as directed by Parent, promptly
after consummating such Competing Transaction (but in no event later than five (5) Business Days following such consummation),
an amount equal to the Break-Up Fee. Payment of any of such amounts shall be made, as directed by Parent, by wire transfer of immediately
available funds.


 


(d)          Break
Up Fee Amount. For purposes of this Agreement, the “Break-Up Fee” shall be an amount equal to $250,000 (if
Parent is paying such fee) or $200,000 (if Gadsden is paying such fee).


 


(e)          Confirmation
of Agreement. The foregoing provisions of this Section 7.2 have been agreed to by each of the parties hereto in order to induce
the other parties to enter into this Agreement and to consummate the Stock Transaction and the other transactions contemplated
by this Agreement, it being agreed and acknowledged by each of them that the execution of this Agreement by them constitutes full
and reasonable consideration for such provisions.


 






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Section 7.3             Effect of Termination.


 


In the event of termination
of this Agreement by either Gadsden or Parent as provided in Section 7.1, this Agreement shall forthwith become void and have no
effect, without any liability or obligation on the part of Gadsden, on the one hand, or Parent, on the other hand, other than Section
5.2, Section 7.1, Section 7.2, this Section 7.3, and Article VIII, which provisions shall survive such termination; provided that
nothing contained herein shall relieve any Person of liability for fraud or a willful breach or Parent’s failure to issue
and deliver the Parent Securities upon the satisfaction or waiver of the conditions to Closing set forth in Article VI.


 


Section 7.4              Amendment.


 


Notwithstanding anything
to the contrary herein, this Agreement may be amended by the parties in writing by action of their respective board of directors,
or other comparable bodies, at any time before or after the Gadsden Stockholder Approval is obtained; provided, however, that,
after the Gadsden Stockholder Approval is obtained, no such amendment, modification or supplement shall be made that would require
the approval of the Gadsden Common Stockholders without obtaining such approval.


 


Section 7.5              Extension; Waiver.


 


At any time prior to
the Closing Time, Gadsden, on the one hand, and Parent, on the other hand, may (a) extend the time for the performance of any of
the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other
party contained in this Agreement or in any document delivered pursuant to this Agreement or (c) subject to the provisions of Section
7.4, waive compliance with any of the covenants, agreements or conditions of the other party contained in this Agreement. Any agreement
on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf
of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not
constitute a waiver of those rights.


 


ARTICLE
VIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION


 


Section 8.1             Post-Closing Remedies.


 


 (a)          Survival
of Representations and Warranties. Each of the representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Closing Time for a period of: (i) with respect to the representations and warranties
in Section 3.1(d)(i) (Authority; No Violations; Consents and Approval), and Section 3.1(k) (Taxes) and Section 3.2(d)(i) (Authority;
No Violations; Consents and Approval), and Section 3.2(l)) (Taxes), for the applicable statute of limitations regarding such subject
matters, and (ii) for all other representations and warranties, for a period expiring March 31, 2020.


 


 (b)          No
Effect on Certain Matters. This Section 8.1 shall not limit any covenant or agreement of the parties which by its terms contemplates
performance after the Closing Time.


 






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(c)          Purchase
Price Adjustment. In the event of a Loss Determination and such Loss Determination is described in a notice to Parent as provided
in Section 8.2(l) on or prior to the applicable Loss Estimate Review Period, the number of shares of the Parent Securities will
be adjusted as provided in this Section 8.1 and Section 8.2.


 


(i)          In
the event that after the Closing Time there is a Loss Determination, then the estimated amount of the Loss (“Loss Estimate”)
shall be determined in good faith by the Board of Directors of Parent. Parent shall then provide a notice to the Parent Post Transaction
Committee for review and approval of the Loss Estimate, which notice shall include all relevant documentation and a description
in reasonable detail as to the material facts and processes used to determine the Loss Estimate.


 


(ii)          The
Parent Post Transaction Committee shall have 30 days to determine if it agrees with the Loss Estimate. If the Parent Post Transaction
Committee does not agree with the Loss Estimate, then it may request additional documentation from Parent (which shall promptly
provide any such information that is reasonably requested, subject to reasonable confidentiality and non-disclosure obligations)
and provide its determination of the Loss Estimate to the Board of Directors of Parent. The Board of Directors of Parent and the
Parent Post Transaction Committee shall thereafter negotiate to resolve the differences with respect to the Loss Estimate for a
period of fifteen (15) days (the “Loss Estimate Review Period”). The Loss Estimate Review Period will, however,
be extended to the extent of the period of time that Parent provides information that has been reasonably requested by the Parent
Post Transaction Committee that takes more than five business days or as otherwise mutually agreed to by the Parent and the Parent
Post Transaction Committee.


 


(iii)          If
the Board of Directors of Parent and the Parent Post Transaction Committee resolve the dispute regarding the Loss Estimate on or
prior to the expiration of the Loss Estimate Review Period, then the Loss Estimate, as adjusted by such resolution, shall be the
Final Loss Amount.


 


(iv)          If
the Board of Directors of Parent and the Parent Post Transaction Committee do not resolve their differences with respect to the
amount of the Lost Estimate prior to the date that is 30 days after the expiration of the Loss Estimate Review Period or such later
period as agreed by the Board of Directors of Parent and the Parent Post Transaction Committee (the “Mediation Period”),
then Parent and the Parent Post Transaction Committee will submit the dispute to mediation, and if not resolved, then to arbitration
as provided below in Section 8.2.


 


Section 8.2              Mediation and Arbitration.


 


(a)          Mediation.
If the Loss Estimate has not become a Final Loss Amount on or prior to expiration of the Mediation Period, then the dispute regarding
the Loss Estimate will be submitted to mediation to JAMS New York office with a mediator that is determined by the agreement of
the Board of Directors of Parent and accepted by Parent Post Transaction Committee, which shall not be unreasonably withheld or
delayed, or if no such acceptance is provided, then by a mediator selected by JAMS.


 






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(b)          Participation
and Cost Allocation. The Parent Post Transaction Committee will participate in the mediation in good faith and, effectively,
Parent will pay the costs of the mediation, which amounts paid will increase the Loss Estimate, up to $100,000 and then the costs
will be allocated equally, it being acknowledged that such payment shall be effected by including such costs in the Final Loss
Amount and issuing additional shares in accordance with Section 8.2(o).


 


(c)          Confidentiality
Provision. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any
of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, shall be confidential,
privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties,
provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or nondiscoverable as a
result of its use in the mediation, subject to any reasonable commercial disclosures to be made by Parent, including any filing
to the SEC or disclosures to actual or potential investors, bankers, accountants, counsel or other professionals.


 


(d)          JAMS
Arbitration. Either Parent or the Parent Post Transaction Committee may initiate arbitration by JAMs with respect to the matters
submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any
time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation
Date”). The mediation may continue after the commencement of arbitration if the parties so desire. If the dispute with
respect to the Loss Estimate is resolved prior to the initiation of arbitration as provided below, then the Final Loss Amount shall
be as agreed in such resolution.


 


(e)          Standstill.
At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement
except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this
limitation is inapplicable to a party if the other party refuses to comply with the requirements of Section 8.2(b).


 


(f)          Tolling.
All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest
Initiation Date. Parent will take such action, if any, required to effectuate such tolling.


 


(g)          Streamlined
Arbitration Rules and Procedures. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this
agreement to arbitrate, shall be determined by arbitration in New York before one arbitrator(s). The arbitration shall be administered
by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award in arbitration (the “Arbitration
Award”) may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional
remedies in aid of arbitration from a court of appropriate jurisdiction.


 






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(h)          Confidentiality
of Proceedings. The parties to the arbitration, including Parent, shall maintain the confidential nature of the arbitration
proceeding and the Arbitration Award, including the arbitration hearing, except as may be necessary to prepare for or conduct the
arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy,
a judicial challenge to an Arbitration Award or its enforcement, or unless otherwise required by law or judicial decision or as
may be required for disclosure under applicable law. Further, Parent shall have the right to provide such disclosures as are commercially
reasonable to its actual or potential investors, lenders, bankers, accountants, lawyers and other professionals and any disclosure
regarding to the SEC or filed with the SEC.


 


(i)          Arbitration
Award. The Arbitration Award shall determine the amount of the Loss arising from or related to Loss Determination and such
amount shall be the Final Loss Amount.


 


(j)          Final
Loss Amount. Subject to Section 8.2(b), the Final Loss Amount will include the amount of actual and reasonable expenses that
have been paid by Parent and the Parent Post Transaction Committee in connection with the processes set forth in Section 8.1 and
Section 8.2.


 


(k)          Certain
Definitions. For the purposes of this Agreement, the following capitalized terms shall have the respective meanings ascribed
to such terms in this Section 8.2(k):


 


(i)          “Parent
Post Transaction Committee” shall mean a committee of two individuals, who shall initially be Richard Leider and Dennis
McGrath unless and until any such individual is removed for cause (as defined by an action that would be an act constituting a
bad actor event under Rule 506 under the Securities Act) or resigns or is disabled or dies and then, if there is one vacancy on
the Parent Post Transaction Committee, such vacancy shall be filled by the remaining member of the Parent Post Transaction Committee
or, if there are two vacancies on the Parent Post Transaction Committee, such vacancies shall be filled by one or both of the prior
members of the Parent Post Transaction Committee, or if no such person remains, then by the vote Parent Majority Holders.


 


(ii)          “Parent
Majority Holders” shall mean the holders of Parent securities that have voting rights to elect a member of the board
of directors of Parent that were issued and outstanding as of record immediately prior to the Closing Time.


 


(iii)          “Final
Loss Amount” shall mean the amount of Losses arising from or related to the events that give rise to a Loss Determination.


 


(iv)          “Loss”
means any and all actual losses, including without limitation, any judgments, assessments, damages, penalties (including governmental
penalties), obligations, awards, fines, deficiencies, interest, claims (including third party claims), costs and expenses whatsoever
(including reasonable attorneys’, consultants’ and other professional fees and disbursements), whether arising out
of a claim involving a third party, or between or among the parties hereto; provided, that: the amount of Losses shall not
include any amount attributable to incidental, consequential, special, or punitive damages except to the extent that Parent or
one of its Subsidiaries is subject to payment of such amounts to a Person.


 






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(v)         “Loss
Determination” shall mean an event that gives rise to a Loss due to a breach of a representation warranty by a party
to this Agreement or the failure of a covenant to be performed by a party that was not fully performed, in each case, after consideration
of any express waiver or amendment which shall not be deemed by a party closing the Stock Transaction with knowledge of any such
breach or default.


 


(vi)         “Loss
Stakeholders” shall mean the following:


 


(A)          With
respect to any Loss by a Loss Determination because of a breach of a representation or warranty by Parent or any of its Subsidiaries
(as of immediately prior to the Closing Time), then Gadsden; or


 


(B)          With
respect to any adjustment that is made in accordance of Section 5.10 because the Final Gadsden NAV is less than the Contract NAV,
then the holders of the Parent capital stock as of immediately prior to the Closing Time; or


 


(C)          With
respect to any Loss by a Loss Determination because of a breach of a representation or warranty by Gadsden or any of its Subsidiaries
(as of immediately prior to the Closing Time), then the holders of the Parent capital stock as of immediately prior to the Closing
Time.


 


(l)            Notice
and Investigations Regarding Loss Determination.


 


(i)             After
the Closing Time, each of the Board of Directors of Parent and the Parent Post Transaction Committee shall review the business
information regarding Parent and its Subsidiaries to determine if there is a Loss Determination in accordance with the procedures
adopted by the Board of Directors of Parent, on the one hand, and the Parent Post Transaction Committee, on the other; provided,
that the Board of Directors of Parent and the Parent Post Transaction Committee shall meet in person or by teleconference not less
than quarterly to review any questions and request any additional information reasonably required to make a prudent and informed
analysis if there is a Loss Determination. Parent shall cooperate and provide information reasonably requested by the Parent Post
Transaction Committee, including the opportunity to meet (in person or by teleconference) the officers and directors of Parent
(and any of its Subsidiaries) and its professional advisers, including its auditors and other financial or accounting consultants.
Parent shall authorize its counsel to meet with (in person or by teleconference) the Parent Post Transaction Committee to discuss
the facts and circumstances that are related to any event (including an allegation) of a Loss Determination, subject to reasonable
confidentiality and non-disclosure obligations.


 






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(ii)             The
Board of Directors of Parent and the Parent Post Transaction Committee shall in good faith cooperate with each other with respect
to making a Loss Determination. If either the Board of Directors of Parent or the Parent Post Transaction Committee makes a Loss
Determination, then such Person shall provide a notice to the other of such Loss Determination providing the reasons underlying
the Loss Determination in reasonable detail. Any such notice shall be provided on or prior to 60 days after the date that, on the
basis of the facts provided to the Board of Directors of Parent or the Parent Post Transaction Committee, a reasonably prudent
executive would make a Loss Determination.


 


(m)          Loss
Threshold. Notwithstanding any provision of Section 8.1 or Section 8.2 to the contrary (other than Section 8.2(b)), no Loss
shall be determined until the aggregate amount of Losses claimed in good faith by the Board of Directors of Parent, on the one
hand, or the Parent Post Transaction Committee, on the other, exceeds $100,000, it being acknowledged that from and after such
threshold, all Losses shall be subject to adjustment under Section 8.1 and Section 8.2.


 


(n)          Limitation
on Duty. Parent acknowledges that certain executives and directors of Gadsden may become officers or directors of Parent or
any of its Subsidiaries. Each such individual shall not have any obligation to take a position that is favorable to Parent in connection
with any dispute as to the amount of a Loss or any Loss Determination and may advocate the position that is favorable to the stockholders
of Gadsden or partners in the OPCO.


 


(o)          Payment
of Losses. After the amount of a Loss has been determined under the provisions of this Section 8.2 or Section 8.1 or otherwise
under the terms of this Agreement, the amount of the Loss will be paid by issuing additional shares of Parent Common Stock to the
Loss Stakeholders (as of record as of the Closing Time) as provided in this Section 8.2(o)):


 


(i)          If
the Parent Board of Directors determines that the amount of the Loss will be paid in cash, then such amount shall be paid by check
payable to the order of the applicable Loss Stakeholders;


 


(ii)          If
the Parent Board of Directors does not determine that the amount of the Loss will be paid in cash, then such amount shall be paid
by Parent issuing and delivering Loss Shares with an aggregate fair value equal to the amount of the Loss to the Loss Stakeholders.


 


(iii)          For
the purposes of this Agreement, the term “Loss Shares” shall mean Parent Common Stock with a fair value per
share that is equal to the Deemed NAV of Parent per share, immediately after the Closing Time, which shall be the Final Combined
Value; provided, that if Parent does not have a sufficient number of authorized and unreserved shares of Parent Common Stock,
then Parent shall take such action as may be necessary in order to amend its articles of incorporation to increase its authorized
common stock such that there will be sufficient authorized common stock available for Parent to issue the Loss Shares hereunder
or use its authorized and unissued preferred stock.








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Section
8.3      Parent Post Transaction Committee Expenses.


 


After
the Closing Date, Parent shall fund the reasonable out of pocket costs, fees and expenses of the Parent Post Transaction Committee
incurred in connection with the evaluation of any Loss Determination during the Loss Estimate Review Period, and thereafter, until
the amount of the Loss and the underlying claims are resolved in accordance with this Article VIII and compensate the members
of the Parent Post Transaction Committee an aggregate amount equal to $20,000 per calendar month, pro-rated for any partial calendar
month; provided, that the aggregate amount that Parent shall fund or otherwise provide is $250,000.


 


ARTICLE
IX. GENERAL PROVISIONS


 


Section
9.1          Notices.


 


All
notices, requests, claims, demands and other communications under this Agreement shall be in writing (and also made orally if
so required pursuant to any Section of the Agreement) and shall be deemed given if delivered personally, sent by overnight courier
(providing proof of delivery) to the parties or sent by facsimile (providing confirmation of transmission) at the following addresses
or telecopy numbers (or at such other address or facsimile number for a party as shall be specified by like notice):


 


		(a)	if
to Parent, to



 


FC
Global Realty Incorporated


2300
Computer Avenue


Building
G


Willow
Grove, PA 19090


Attention:
Michael R. Stewart, Chief Executive Officer


Facsimile:
215-657-5161


 


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


 


Bevilacqua
PLLC


1050
Connecticut Avenue NW Suite 500


Washington,
DC 20036


Attention:
Louis A. Bevilacqua


Facsimile:
202-869-0889


 


		(b)	if
to Gadsden, to



 


Gadsden
Growth Properties, Inc.


15150
N. Hayden Road


Suite
220


Scottsdale,
AZ 85260


Attention:
John Hartman, Chief Executive Officer


 



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


 


Allegaert
Berger & Vogel LLP


111
Broadway, 20th Floor


New
York, New York 10006


Attention:
Richard Morris


Facsimile:
(212) 571-0555


 


Section
9.2          Interpretation.


 


When
a reference is made in this Agreement to an Article or a Section, such reference shall be to an Article or a Section of this Agreement
unless otherwise indicated The table of contents and headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement Whenever the words “include,” “includes”
or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”
The words “hereof”, “herein” and “hereby” refer to this Agreement Any singular term in this
Agreement shall be deemed to include the plural, and any plural term the singular.


 


Section
9.3          Specific Performance.


 


The
parties hereto agree that irreparable damage would occur in the event any of the provisions of this Agreement were not to be performed
in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof in addition
to any other remedies at law or in equity.


 


Section
9.4          Counterparts.


 


This
Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties Counterparts may be delivered via facsimile, electronic mail (including pdf or
any electronic signature complying with the U.S federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for
all purposes At the request of any party, the parties will confirm facsimile transmission by signing a duplicate original document.


 


Section
9.5          Entire Agreement; No Third-Party Beneficiaries.


 


This
Agreement, and the Confidentiality Agreement constitute the entire agreement and supersede all prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter of this Agreement. Except for the rights of other
Persons that are expressly provided in this Agreement, the rights and benefits of this Agreement are not for the benefit of any
Person that is not a party to this Agreement.


 



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Section
9.6          Governing Law.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO THE CONFLICTS
OF LAWS PRINCIPLES THEREOF.


 


Section
9.7          Assignment.


 


Neither
this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or delegated, in whole or
in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.


 


Section
9.8          Severability.


 


If
any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental
Entity to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party Upon such a determination,
the parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely
as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.


 


Section
9.9          Exhibits; Disclosure Letter.


 


The
Exhibits referred to herein and the Gadsden Disclosure Letter and the Parent Disclosure Letter, and all exhibits or attachments
hereto or thereto, are intended to be and hereby are specifically made a part of this Agreement Any matter set forth in any section
or subsection of the Gadsden Disclosure Letter or the Parent Disclosure Letter shall be deemed to be a disclosure for all purposes
of this Agreement and all other sections or subsections of the Gadsden Disclosure Letter or the Parent Disclosure Letter to the
extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections or subsections,
but shall expressly not be deemed to constitute an admission by Gadsden or any Gadsden Subsidiary, or Parent or any Parent Subsidiary,
as the case may be, or otherwise imply, that any such matter rises to the level of a Gadsden Material Adverse Effect, or a Parent
Material Adverse Effect, or is otherwise material for purposes of this Agreement or the Gadsden Disclosure Letter or the Parent
Disclosure Letter.


 


Section
9.10        Mutual Drafting.


 


This
Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party
drafting or causing this Agreement to be drafted.


 



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Section
9.11        Jurisdiction; Venue.


 


THE
PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF MARYLAND AND THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA LOCATED IN THE STATE OF MARYLAND SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF
THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT, AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND
HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF
OR OF ANY SUCH DOCUMENT, THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE
IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED
IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL
BE HEARD AND DETERMINED SOLELY IN SUCH A MARYLAND STATE OR FEDERAL COURT THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR
OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 8.2 OR IN SUCH OTHER MANNER AS MAY
BE PERMITTED BY APPLICABLE LAWS, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.


 


Section
9.12        Waiver of Trial by Jury.


 


EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B)
EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY,
AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.12.


 


ARTICLE
X. CERTAIN DEFINITIONS


 


Section
10.1        Specified Capitalized Terms.


 


For
purposes of this Agreement:


 


“Affiliate”
of any Person has the meaning assigned thereto by Rule 12b-2 under the Exchange Act.


 



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“Business
Day” means any day other than a Saturday, Sunday or a day on which banking institutions in New York, New York are authorized
or obligated by law or executive order to be closed.


 


“Carve
Out Activity” means any of the transactions or events listed on Section 4.2 of the Gadsden Disclosure Letter or Parent Disclosure,
as applicable.


 


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


 


“Controlled
Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii) under section 302 of ERISA, (iii) under
sections 412 and 4971 of the Code, and (iv) as a result of a failure to comply with the continuation coverage requirements of
section 601 et seq. of ERISA and section 4980B of the Code.


 


“ERISA
Affiliate” means, with respect to any entity, trade or business, any other entity that was, at the relevant time, required
to be aggregated with such other entity, trade or business under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of
ERISA.


 


“Exclusivity
Period” means the period commencing on the date of this Agreement and expiring on the date that is 45 days after such
date, or such longer period as agreed by Parent and Gadsden in writing, which may for this purpose be by an electronic mail message.


 


“Gadsden
Series A Preferred Shares” means the 7% Series A Cumulative Convertible Perpetual Preferred Stock, par value $0.01 per
share, of Gadsden.


 


“Gadsden
Series B Preferred Shares” means the Series B Non-Voting Convertible Preferred Stock, par value $0.01 per share, of
Gadsden.


 


“Gadsden
Series C Preferred Shares” means the 10% Series C Cumulative Convertible Preferred Stock, par value $0.01 per share,
of Gadsden.


 


“Knowledge”
or any similar expression, means with respect to a Person (or any of its Subsidiaries) the actual knowledge of such Person’s
CEO, President, General Counsel, Chief Operating Officer or Chief Administrative Officer or any person serving on such Person’s
board of directors.


 


“Law”
means any federal, state or local or foreign statute, law, regulation, permit, license, approval, authorization, rule, ordinance
or code of any Governmental Entity, including any judicial or administrative interpretation thereof.


 


“Liabilities”
means any and all debts, liabilities and obligations of any nature whatsoever, whether accrued or fixed, absolute or contingent,
including those arising under any Law, those arising under any contract, agreement, commitment, instrument, permit, license, franchise
or undertaking and those arising as a result of any act or omission.


 



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“Material
Adverse Effect” with respect to any specified Person, means, with respect to such Person or any of its Subsidiaries,
any change, event, effect or set of circumstances that, when taken together with all other adverse changes, events, effects, or
set of circumstances that have occurred, is or is reasonably likely to (x) be materially adverse to the business, operations,
properties, financial condition, or assets of such Person and its Subsidiaries, taken as a whole; except for any such change,
event, effect or set of circumstances resulting from (i) changes in political, economic or business conditions (including the
commencement, continuation or escalation of a war, material armed hostilities or other material international or national calamity
or acts of terrorism or earthquakes, hurricanes, other natural disasters or acts of God) affecting the business or industry in
which such Person operates, except to the extent that such changes in political, economic or business conditions have a materially
disproportionate adverse effect on such Person relative to other similarly situated participants, (ii) changes, after the date
hereof, in financial and capital market conditions generally, (iii) changes, after the date hereof, in Laws of general applicability
or interpretations thereof by courts or Governmental Entities, (iv) changes, after the date hereof, in GAAP applicable to the
business or industry in which such Person operates generally, or (v) the announcement or performance of the transactions contemplated
hereby or the consummation of the transactions contemplated hereby or (y) that has a material adverse effect on the ability of
such Person to timely consummate the Stock Transaction and the other transactions contemplated. The terms “Gadsden Material
Adverse Effect” and “Parent Material Adverse Effect” shall have a correlative meaning to the term “Material
Adverse Effect”.


 


“Material
Contracts” means with respect to any specified Person: (i) any loan agreement, letter of credit, indenture, note, bond,
debenture, mortgage or any other document, agreement or instrument evidencing a capitalized lease obligation or other indebtedness
to any Person, or any guaranty thereof, in excess of $50,000 (excluding letters of credit, performance bonds or guaranties entered
into in the ordinary course of business), (ii) any contracts entered into by Gadsden or any Gadsden Subsidiary that, by its terms,
is not terminable within one year (without termination fee or penalty) or that may result in total payments by the specified Person
in excess of $50,000 with respect to Gadsden or $50,000 with respect to Parent, other than any agreements with respect to Joint
Ventures, any leases with respect to any property of such Person, any development or construction contracts or, in each case,
any related or ancillary agreement), (iii) any other agreements filed or required to be filed as exhibits pursuant to Item 601(b)(10)
of Regulation S-K of Title 17, Part 229 of the Code of Federal Regulations (assuming such Person is subject to the Exchange Act
for such purposes), (iv) any interest rate cap, interest rate collar, interest rate swap, currency hedging transaction and any
other agreement relating to a similar transaction to which such Person is a party or an obligor with respect thereto, (v) any
partnership or joint venture agreement with any third parties and (vi) any agreement, commitment, instrument or obligation of
a type of a Restricted Covenant Agreement.


 


“Order”
means any award, judgment, injunction, consent, ruling, decree or order (whether temporary, preliminary or permanent) issued,
adopted, granted, awarded or entered by any Governmental Entity or private arbitrator of competent jurisdiction.


 


“Parent
Series A Stock” means the shares of preferred stock that will be authorized in accordance with the Parent Charter that
have terms mutatis mutandis to the Gadsden Series A Preferred Shares.


 


“Parent
Series B Stock” means the shares of preferred stock that will be authorized in accordance with the Parent Charter that
have terms mutatis mutandis to the Gadsden Series B Preferred Shares.


 



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“Parent
Series C Stock” means the shares of preferred stock that will be authorized in accordance with the Parent Charter that
have terms mutatis mutandis to the Gadsden Series C Preferred Shares.


 


“Permitted
Issuances” means the following: (i) with respect to any issuances of any securities of Gadsden: (a) in respect of the
conversion or exchange of Convertible Senior Notes or other outstanding indebtedness, any series of its preferred stock, or any
Class B OPCO Units; and (b) any issuance in connection with the acquisition of any real estate investment; and (ii) with respect
to any party, pursuant to the terms of any Gadsden Award or awards of Parent Common Stock or any issuance of any shares of capital
stock for cash consideration at the fair value of such security.


 


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


 


“Restricted
Covenant Agreement” means an agreement that restricts a specified Person with respect to competition or solicitation
of clients, customers, employees, consultants or any similar Person or restricts the conduct of business in any material way other
than customary confidentiality and non-disclosure agreements.


 


“Subsidiary”
of any Person means any corporation, partnership, limited liability company, joint venture or other legal entity of which (i)
such Person, or its Subsidiary, is the general partner, managing manager or similar controlling Person or (ii) such Person (either
directly or through or together with another Subsidiary of such Person) owns more than 50% of the capital stock, voting securities
or ownership or equity interest or value of such corporation, partnership, limited liability company, joint venture or other legal
entity. In the case of Parent, the term Subsidiary shall not include Gramercy Capital Corp. and its Subsidiaries.


 


“Tax
Protection Agreement” means any agreement, oral or written, to which the specified Person is a party and pursuant to
which: (i) any liability to the holders of the limited partnership interests or limited liability company interests of any subsidiary
of such Person that may arise relating to Taxes, whether or not as a result of the consummation of the transactions contemplated
by this Agreement; (ii) in connection with the deferral of income Taxes of a holder of such limited partnership interests or limited
liability company interests, that such Person has agreed to (A) maintain a minimum level of debt or continue a particular debt
or (B) retain or not dispose of assets for a period of time that has not since expired; or (iii) limited partners of any limited
partnership interests or limited liability company interest of a Subsidiary of such Person have guaranteed or otherwise assumed,
directly or indirectly, debt of OPCO or are offered the opportunity to do so.


 


“Tax
Return” means any return, report, declaration, statement or other information required to be supplied to any taxing
authority.


 


“Tax”
or “Taxes” means any U.S. federal, state, local and foreign taxes and similar governmental charges (together
with any interest, penalties, or additions thereto), including, without limitation, income, gross receipts, license, withholding,
property, recording, stamp, sales, use, franchise, employment, payroll, excise, environmental, value added, or gains taxes.


 



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Section
10.2        Index of Other Defined Terms.


 


Each
of the following additional terms is defined in the Section set forth opposite such term:


 


	Acquired Assets	5.10(a)	 	Gadsden Leases	3.1(o)(viii)
	Agreement	Preamble	 	Gadsden Permits	3.1(i)
	Arbitration Award	8.2(g)	 	Gadsden Property	3.1(o)(i)
	Award	3.1(c)(ii)	 	Gadsden Specified Account	1.1(a)(i)
	Break-Up Fee	7.2(d)	 	Gadsden Stockholder Approval	3.1(q)
	Capital Budget	4.2(a)(iii)(D)	 	Gadsden Stockholder Meeting	3.1(d)(i)
	Class A OPCO Units	2.3	 	Gadsden	Preamble
	Class B OPCO Units	2.3	 	Hazardous Materials	3.1(n)(i)
	Closing Date	2.1	 	Holdback Shares	1.1(a)(i)
	Closing Time	2.1	 	Indemnified Party	5.9(a)
	Closing	2.1	 	Indemnitor	5.9(a)
	Competing Transaction	5.5(c)	 	Joint Ventures	3.1(b)
	Confidentiality Agreement	5.2(b)	 	Liens	3.1(b)
	Contract NAV	5.10(a)	 	Loss Determination	8.2(k)(v)
	Convertible Right	3.1(c)(iii)(D)	 	Loss Estimate Review Period	8.1(c)(i)
	Covered Gadsden Disclosure	3.1	 	Loss Estimate	8.1(c)(i)
	Covered Parent SEC Disclosure	3.2	 	Loss Shares	8.2(o)(iii)
	Deemed NAV	5.10(e)	 	Loss Stakeholders	8.2(k)(vi)
	Earliest Initiation Date	8.2(d)	 	Loss	8.2(k)(iv)
	Employment Agreement	5.14(b)	 	Mediation Period	8.1(c)(iv)
	Encumbrances	3.1(o)(ii)	 	Merger	Recitals
	Environmental Laws	3.1(n)(i)	 	Merger Agreement	Recitals
	ERISA	3.1(l)(i)	 	NAV Excess Shortfall Amount	5.10(d)(ii)
	Exchange Act	3.1(e)(i)	 	NAV Shortfall Amount	5.10(d)
	Final Loss Amount	8.2(k)(iii)	 	OPCO Agreement	2.3
	Final Combined Value	5.10(a)	 	OPCO Units	3.1(c)(i)
	Final Gadsden NAV	5.10(a)	 	OPCO	1.2(i)
	Final Parent FV	5.10(a)	 	Parent Balance Sheet	3.2(e)
	Final Ratio of Gadsden	5.10(a)(i)	 	Parent Bylaws	3.2(i)
	GAAP	3.1(e)(ii)	 	Parent Charter	3.2(i)
	Gadsden Balance Sheet	3.1(e)(ii)	 	Parent Common Stock	1.1(a)
	Gadsden Bylaws	3.1(a)	 	Parent Disclosure Letter	3.2
	Gadsden Charter	3.1(a)	 	Parent Employee Benefit Plans	3.2(m)(i)
	Gadsden Collective Bargaining	 	 	Parent Leases	3.2(p)(viii)
	Agreements	3.1(m)	 	Parent Majority Holders	8.2(k)(ii)
	Gadsden Assets	5.10(a)	 	Parent Permits	3.2(j)
	Gadsden Disclosure Letter	3.1	 	Parent Post Transaction Committee	8.2(k)(i)
	Gadsden Employee Benefit Plan	3.1(l)(i)	 	Parent Property	3.2(p)(i)




 



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	Parent SEC Documents	3.2(e)
	Parent Securities	1.1(a)
	Parent	Preamble
	Permitted Expenditures	4.2(a)(iii)(D)
	Recommendation	5.1(b)
	Registration Statement	Recitals
	Roseville	3.1(f)
	Scheduled Investments	5.10(a)
	SEC	Recitals
	Securities Act	Recitals
	Stock Transaction	Recitals
	Superior Competing Transaction	5.5(d)
	Superior Notice	5.6(b)(i)
	Takeover Statute	3.1(t)
	Termination Date	7.1(b)
	Transaction 8K	Recitals
	Transfer and Gains Taxes	5.4




 



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


 


	 	FC GLOBAL REALTY INCORPORATED
	 	 	 
	 	By: 	/s/ Michael R. Stewart
	 	Name: Michael R. Stewart
	 	Title: Chief Executive Officer



 


	 	GADSDEN
GROWTH PROPERTIES, INC.
	 	 	 
	 	By: 	/s/ John Hartman
	 	Name:
John Hartman
	 	Title:
Chief Executive Officer