UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 

 
FORM 8-K
 

 
CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 18, 2018

SILVERSUN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)

Delaware
 
000-50302
 
16-1633636
(State or other jurisdiction
of incorporation)
 
(Commission File Number)
 
(IRS Employer
Identification No.)

120 Eagle Rock Ave
East Hanover, NJ 07936
 (Address of Principal Executive Offices)

(973) 396-1720
Registrant’s telephone number, including area code


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.




Item 1.01 Entry into a Material Definitive Agreement.
 
Info Sys Asset Purchase
 
On May 18, 2018 SWK Technologies, Inc., a wholly owned subsidiary of SilverSun Technologies, Inc. (the “Company”), entered into an Asset Purchase Agreement (the “ISM Purchase Agreement”) by and among the Company, as parent, SWK Technologies, Inc., as buyer (“Buyer” or “SWK”), Info Sys Management, Inc., an Oregon corporation, as seller (the “Seller” or “ISM”), and three individual  stockholders owning all of the outstanding capital stock of ISM (the “Stockholders”), pursuant to which the Buyer has agreed to acquire from the Seller the Acquired Assets of Seller (as defined in the Purchase Agreement).

In consideration for the Acquired Assets, (i) SWK will pay Seller $300,000 in cash (the “Cash Payment”); and (ii) the Company will issue Seller a convertible promissory note in the principal amount of $1,000,000 (the “ISM Note”) which will bear interest at the rate of 2% per annum and will  mature on May 31, 2023.  The ISM Note shall be paid in equal monthly installments and the Company has a right to prepay the ISM Note in whole or in part at any time. The ISM Note is convertible into shares of the Company’s common stock at the price equal to the average closing price of the Company’s common stock for the five (5) trading days immediately preceding the issuance date of the ISM Note.

Nellnube Asset Purchase

On May 18, 2018, Secure Cloud Services, Inc., a wholly owned subsidiary of the Company, entered into an Asset Purchase Agreement (the “Nellnube Purchase Agreement”, together with the ISM Purchase Agreement, the “Purchase Agreements”) by and among the Company, as parent, Secure Cloud Services, Inc., as buyer ( “SC Services”), Nellnube, Inc., an Oregon corporation ( “NN”) and wholly owned subsidiary of ISM, as seller, and ISM, as the sole stockholder of NN, pursuant to which the Buyer will acquire all of the Acquired Assets (as defined in the Nellnube Purchase Agreement) from NN

In consideration for the Acquired Assets of NN, the Company will issue ISM a convertible promissory note in the principal amount of $400,000 (the “NN Note”) which will bear interest at the rate of 2% per annum and will mature on May 31, 2023.  The NN Note shall be paid in equal monthly installments and the Company has right the to prepay the NN Note in whole or in part at any time. The NN Note is convetible into shares of the Company’s common stock at the price equal to the average closing price of the Company’s common stock for the five (5) trading days immediately preceding the issuance date of the NN Note.

The Purchase Agreements will be effective on June 1, 2018, at which time delivery of the consideration for the Acquired Assets, including the issuance of the ISM Note, NN Note and Cash Payment, and delivery of the Acquired Assets, will occur.
 
Employment Agreement

Additionally, in connection with the Purchase Agreement, SWK entered into an Employment Agreement (the “O’Reilly Employment Agreement”) with Brian James O’Reilly, pursuant to which Mr. O’Reilly will serve as Chief Technology Officer of SWK.  Mr. O’Reilly’s duties will focus on overseeing all technical aspects of SWK for the purpose of organizational growth, establish a technological vision for SWK and lead SWK’s technological development.  The term of the Employment Agreement is for three years, beginning on June 1, 2018, unless otherwise terminated pursuant to the terms and conditions thereunder (the “Term”). SWK shall pay Mr. O’Reilly $250,000 per annum.  

If SWK terminates Mr. O’Reilly’s employment other than for cause pursuant to the terms and conditions of the O’Reilly Employment Agreement, SWK shall pay or provide Mr. O’Reilly, within thirty (30) days of the date of termination: (i) any unpaid salary earned under the O’Reilly Employment Agreement prior to the date of termination; (ii) any accrued but unused PTO days prior to the date of termination; (iii) any unpaid compensation due; (iv) any unpaid expense reimbursement owed to him for periods through the date of termination; and (v) Mr. O’Reilly’s Base Salary (as defined therein) for the remainder of the Term.

 


The above description of the Purchase Agreements, ISM Note, NN Note and O’Reilly Employment Agreement do not purport to be complete and are qualified in their entirety by reference to such documents filed as exhibits hereto.

Item 2.01 Completion of Acquisition or Disposition of Assets.

The disclosure set forth above under Item 1.01 to this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.01.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The disclosure set forth above under Item 1.01 to this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.03.

Item 3.02 Unregistered Sale of Equity Securities.

The disclosure set forth above under Item 1.01 to this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.02

The above issuances were made in reliance on an exemption from registration set forth in Section 4(a)(2) of the Securities Act of 1933, as amended, and/or Regulation D promulgated thereunder.
 
Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.
 
Description
 
 
 
2.1*
 
     
2.2*
 
     
10.1*
 
     
10.2*
 
     
10.3*
 

*Filed herewith




SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
  SILVERSUN TECHNOLOGIES, INC.   
       
Date: May 24, 2018
By:
/s/ Mark Meller                                          
 
 
 
Mark Meller
 
 
 
President, Chief Executive Officer and
 
 
 
   
 
 
 

 

Exhibit 2.1



ASSET PURCHASE AGREEMENT


by and among

SILVERSUN TECHNOLOGIES, INC .

As Parent


SWK TECHNOLOGIES, INC.,

As Buyer


and



INFO SYS MANAGEMENT, INC.

As Seller

and


BRIAN JAMES O’REILLY, CARLA BROWN AND JENNIFER TUCK


As Stockholders





May ___, 2018



ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”) is dated May ___, 2018, by and among SWK TECHNOLOGIES, INC., a Delaware corporation, located at 120 Eagle Rock Avenue, East Hanover, NJ  07936 (“ Buyer ”); SilverSun Technologies, Inc., located at 120 Eagle Rock Avenue, East Hanover, NJ  07936 (“SSNT” or the “Parent”), Info Sy Management, Inc., an Oregon corporation, located at 2300 SE Beta Street, Suite A, Portland, Oregon 97222  (“ Seller ” or “ ISM ”), and Brian James O’Reilly, Carla Brown and Jennifer Tuck (collectively the “ Stockholders ”), as individuals and owners of all the issued and outstanding capital stock of ISM.  Buyer, Seller, and Stockholders are sometimes each referred to separately as a “ Party ” and collectively herein as the “ Parties .”
W I T N E S S E T H :
WHEREAS, Seller is primarily engaged in the business of selling and supporting enterprise resource planning and similar software applications, for small and middle market companies in North America;
WHEREAS, Seller has agreed to sell certain assets to Buyer, and Buyer wishes to purchase from Seller certain assets with respect to the Business on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Seller desires to transfer, and Buyer is willing to assume, certain liabilities relating to the Business;
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.
ARTICLE 1

DEFINITIONS
For purposes of this Agreement, the following terms have the meanings assigned to them in this Article 1:
 “ Acquired Assets ” means any and all assets of ISM (excluding the Excluded Liabilities), including but not limited to the following:
(a)            the Client Lists and Prospect Lists, along with all rights, benefits and privileges arising thereunder or with respect thereto which are set forth on Exhibit D attached hereto;
(b)            the Contracts, along with all rights, benefits and privileges arising thereunder or with respect thereto which are set forth on Section 2.07 of the Disclosure Schedule;
(c)            all files, correspondence, agreements and other documents relating to the Client Lists, Prospect Lists, Contracts and Intellectual Property;
(d)            certain tangible personal property (such as equipment and furniture) which are set forth in Section 2.10 of the Disclosure Schedule;
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(e)            the Intellectual Property of the Business including, without limitation the Intellectual Property which is set forth in Section 2.11 of the Disclosure Schedule.  ISM’s Software and related assets, set forth in Section 2.11 B of the Disclosure Schedule, are expressly excluded from the Assets being acquired;
(f)            all goodwill of ISM and all other assets related to or used in connection with the Business so long as they are related to an Acquired Asset;
(g)            all deposits with ISM’s landlord, utility companies, and all other such deposits;
(h)            The leaseholds identified in Schedule 2.10 of the Disclosure Schedule;
(i)            cash equal to the unearned revenue, prepaid blocks of time,  and customer deposits of ISM shown on the balance sheet of ISM as of the Closing Date;
(j)            any and all other assets of ISM not mentioned above, except all policies of life and disability insurance on any and all Stockholders, and all rights and benefits thereunder.
Adverse Consequences ” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and expenses.
Accounts Payable ” the aggregate amount of a ISM’s short term obligations to pay suppliers for products and services.
Agreement ” has the meaning set forth in the preface above.
Applicable Law ” means any constitutional provision, statute or ordinance, whether foreign, federal, state or local, applicable in the United States or any other nation, including any other law, rule, regulation, judgment, injunction, order, executive order, ruling, assessment, writ, decree or interpretation thereof of any Governmental Entity, or any common law.
 “ Business   means all of the business and operations of ISM.
Business Day ” means any day other than a day that is a Saturday, Sunday or legal holiday in New York, New York.
Buyer ” has the meaning set forth in the preface above.
 “ Client Lists ” means any and all lists, spreadsheets, worksheets and tables of any type or form identifying each and every client and former client of ISM as of the Closing Date which are listed on Exhibit D attached hereto.
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Closing ” has the meaning set forth in Section 1.04 below.
Closing Date   has the meaning set forth in Section 1.04 below.
Code ” means the Internal Revenue Code of 1986, as amended.
 “ Contracts ” means the following: (i) all employment agreements; (ii) all customer software applications and/or partner proposals containing specifications of modifications to software; (iii) all Licenses (whether written or oral); (iv) all non-compete and non-solicitation agreements; and (v) all active leases applying to any equipment located in the offices of ISM.
Disclosure Schedule   has the meaning set forth in Article 2 below.
Employees ” means the employees of the Business.
Environmental Law ” means a legal rule pertaining to land use, air, soil, surface water, groundwater (including the protection, cleanup, removal, remediation or damage thereof), public or employee health or safety or any other environmental matter, including, without limitation, the following laws as the same have been amended from time to time: (i) Clean Air Act (42 U.S.C. § 7401, et seq. ); (ii) Clean Water Act (33 U.S.C. § 1251, et seq. ); (iii) Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq. ); (iv) Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq. ); (v) Safe Drinking Water Act (42 U.S.C. § 300f, et seq. ); and (vi) Toxic Substances Control Act (15 U.S.C. § 2601, et seq. ); (vii) Rivers and Harbors Act (33 U.S.C. § 401, et seq. ); together with all other legal rules regulating emissions, discharges, releases or threatened releases of any hazardous substance into ambient air, land, surface water, groundwater, personal property or structures, or otherwise regulating the manufacture, processing, distribution, use, treatment, storage, disposal, transport, discharge or handling of any hazardous substance.
Excluded Liabilities ” means all liabilities of ISM of any nature whatsoever and wherever situated not included in “Included Liabilities”, including without limitation:
(a)            Bank lines of credit, accrued liabilities and any liabilities or obligations that should have been paid prior to the Closing Date in ISM’s ordinary course of business relating to any employee, any Plan, any employee benefits or commissions, salaries, wages or other compensation arrangements existing on or prior to the Closing Date with respect to ISM or the Business;
(b)            any Taxes of ISM and any other Taxes accruing on or prior to the Closing Date;
(c)            any liabilities relating to any current pending or threatened litigation, arbitration or any other Proceeding against ISM or any future litigation, arbitration or Proceeding relating to the Acquired Assets to the extent related to events occurring prior to the Closing Date;
(d)            any liabilities arising out of any violation of Environmental Law;
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(e)            any liabilities for legal fees and expenses of ISM related to the transactions contemplated hereby.
(f)            any amount due related to life insurance and disability policies of the Stockholders.
(g)            Accounts Payable;
(h)            Any and all other liabilities not expressly assumed in Included Liabilities.
Fixed Conversion Price” shall be that price equal to the average closing price of SSNT’s Common Stock for the five (5) trading days immediately preceding the Closing Date.
GAAP ” means United States generally accepted accounting principles as in effect from time to time.
Governmental Entity ” shall mean any government (including any United States of foreign federal, state, provincial, cantonal, municipal or county government), any political subdivision thereof and any governmental, administrative, ministerial, regulatory, central bank, self‑regulatory, quasi‑governmental, taxing, executive, or legislative department, commission, body, agency, authority or instrumentality of any thereof.
 “ Included Liabilities ” shall mean the following liabilities only :
a.
Client deposits and prepaid blocks of time;

b.
Leasehold on 12555 High Bluff Dr #260, San Diego, CA 92130; Leasehold on 473 W Hood Ave, Suite 102, Sisters, OR 97759; Leasehold on 2300 SE Beta Ave, Suite A, Milwaukie, OR 97222;

c.
Equipment leases for equipment currently in production.
 
Indemnified Party ” has the meaning set forth in Section 6.03 below.
Indemnifying Party ” has the meaning set forth in Section 6.03 below.
Intellectual Property ” means: (a) inventions (whether patentable or unpatentable and whether or not reduced to practice), improvements thereon, and patents, patent applications and patent disclosures, together with reissues, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) trademarks, service marks, trade dress, logos, trade names, URLs, websites, domain names and corporate names, together with translations, adaptations, derivations, and combinations thereof, and including but not limited to goodwill associated therewith, applications, registrations and renewals in connections therewith, and the rights to use the Internet domain name “http://www.goism.com” and all iterations and permutations thereof, together with all logos, slogans, trademarks, and service marks relating thereto used by ISM in connection therewith; (c) copyrightable works, copyrights, and applications, registrations and renewals in connections therewith, mask works and applications, registrations and renewals in connections therewith; (d) trade secrets and confidential business
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information (including but not limited to research and development, know-how, formulas, compositions, manufacturing and reproductions processes and techniques, methods, schematics, technology, flowcharts, block diagrams, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals); (e) computer software (including but not limited to data related documentation); (f) copies and tangible embodiments of any of the foregoing (in whatever form or medium); and (g) licenses, sublicenses, permissions or contacts in connection with any of the foregoing.
Intellectual Property Rights ” means the rights or interest of any Person in or to any Intellectual Property.
Judicial Authority ” shall mean any court, arbitrator, special master, receiver, tribunal or similar body of any kind.
Knowledge ” means actual knowledge of a Person without being under any duty to investigate.
License ” means any agreement between ISM and end user which establishes rights under which ISM’s software application may be used.
 “ Material Adverse Effect ” means (i) with respect to ISM, a material adverse effect on (A) the Acquired Assets, (B) the ability of ISM to perform its obligations under this Agreement, or (C) the validity or enforceability of this Agreement, and (ii) with respect to Buyer, a material adverse effect on (A) the ability of Buyer to perform its obligations under this Agreement, or (B) the validity or enforceability of this Agreement.
Notice of Claim ” has the meaning set forth in Section 6.03.
Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).
Party ” has the meaning set forth in the preface above.
Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
 “ Proceeding ” shall mean any action, suit, counter‑claim, arbitration, mediation, litigation, inquiry, hearing, investigation or other proceeding of any kind involving any Governmental Entity, any Judicial Authority or any other Person.
Product ” “ Product Lines ” and “ Enhancements ” means the products set forth on Schedule 2.

Prospect Lists ” means any and all lists, spreadsheets, worksheets and tables of any type or form identifying each and every prospect, potential prospects, leads or
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business opportunities of ISM as of the Closing Date which are listed on Exhibit D attached hereto.

Purchase Price ” has the meaning set forth in Section 1.02 below.
Security Interest ” means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic’s, materialmen’s, and similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the taxpayer is contesting in good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
ISM ” has the meaning set forth in the preface above.
 “ Stockholders ” has the meaning set forth in the preface above.
 “ Taxes ” means (A) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties and other taxes of any kind whatsoever, together with all interest and penalties, additions to tax and other additional amounts imposed by any Governmental Entity on such entity, and (B) any liability for the payment of any amount of the type described in the immediately preceding clause (A) as a result of being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another entity, a member of an affiliated or combined group, a contract or otherwise.
Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule, exhibit or attachment thereto.
Third Party Claim ” has the meaning set forth in Section 6.03 below.


BASIC TRANSACTION
Section 1.01                      Purchase and Sale of Assets .  On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell, transfer, convey, and deliver to Buyer, all of the Acquired Assets at the Closing in consideration of the payments by Buyer of the Purchase Price (as defined below), plus such other amounts, as specified below in Section 1.02, and Buyer shall further assume all of the Included Liabilities, as specified below in Section 1.03.
Section 1.02                      Purchase Price .  Payments shall be made (the “ Purchase Price ”) in accordance with the following:
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(i)            On the Closing Date, Buyer shall pay ISM the sum of $300,000 cash (the “Cash Payment”) in the form of a cashier’s check, certified check or wire transfer;
(ii)            On the Closing Date, Parent shall issue ISM a convertible note (the “Note”), in form attached hereto as Exhibit A, in the principal amount of $1,000,000.  The Note shall bear interest at two percent (2%) per annum, and shall mature on May 31, 2023.    Interest and principal shall be paid monthly in sixty (60) equal installments of $17,527.76 per month.   Parent may prepay the Note, in whole or in part, at any time.  The Note will be convertible, at the option of ISM or its assignee,  into shares of common stock of SSNT, at the Fixed Conversion Price.
Section 1.03                      Assumption of Liabilities .  As further consideration for the sale of Acquired Assets, Buyer shall, without any further responsibility or liability of, or recourse to, Seller, or any of Seller’s directors, shareholders, officers, employees, agents, consultants, representatives, affiliates, successors or assigns, absolutely and irrevocably assume and be solely liable and responsible for the Included Liabilities. Save and except for the Included Liabilities, Buyer shall not assume or have responsibility for any other Seller liabilities of any type whatsoever.
Section 1.04                      Closing .  The Closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place on May 31, 2018, at the offices of Lucosky Brookman LLP, located at 101 Wood Avenue South, Woodbridge, New Jersey 08830.  The date on which the Closing occurs is referred to herein as the (“ Closing Date ”) and the Closing shall be deemed effective as of 12:00 a.m. New York time on the day immediately following the Closing Date.
Section 1.05                      Deliveries at the Closing .  At the Closing, (i) ISM will deliver to Buyer the various certificates, instruments, and documents referred to in Section 5.01 below; (ii) Buyer will deliver to Seller the various certificates, instruments, and documents referred to in Section 6.02 below; (iii) Seller will execute, acknowledge (if appropriate), and deliver to Buyer (A) a bill of sale in the form attached hereto as Exhibit B , (B) an assignment and assumption agreement in the form attached hereto as Exhibit C , and (C) such other instruments of sale, transfer, conveyance and assignment as Buyer and its counsel reasonably may request; (iv) Buyer will execute, acknowledge (if appropriate), and deliver to Seller (A) an assignment and assumption agreement in the form attached hereto as Exhibit C , and (B) such other instruments of assumption as Seller and its counsel reasonably may request; (v) the Parties shall make payments and deliveries in accordance with Section 1.02 herein.
Section 1.06                      Allocation .  The Parties agree to allocate the Purchase Price (and all other capitalizable costs) among the Acquired Assets for all purposes (including financial accounting and tax purposes) in accordance with Section 1.02 herein which the Parties agree will result in an aggregate allocation to the tangible assets of $170,000.  The Parties shall make all necessary filings (including those under Section 1060 of the Code) in accordance with such allocation.
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ARTICLE 2  

REPRESENTATIONS AND WARRANTIES OF SELLER AND STOCKHOLDERS
Seller and Stockholders represent and warrant to Buyer, jointly and severally, that the statements contained in this Article 2 are correct and complete as of the date hereof and as of the Closing Date, except as set forth in the disclosure schedule accompanying this Agreement or any amendments (or deemed amendments thereto) (the “ Disclosure Schedule ”). Seller represents and warrants to Buyer that to Seller’s knowledge, the statements contained in this Article 2 are correct and complete as of the Closing Date, except as set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in sections corresponding to the lettered and numbered sections contained in this Article 2.
Section 2.01                      Organization of ISM .  ISM is a corporation or other business entity duly organized, validly existing, and in good standing under the laws of the jurisdiction of State of Oregon.  ISM has all requisite corporate power and authority to carry on the businesses in which it is engaged, to carry on the Business proposed to be conducted by the Buyer and to own and use the properties owned and used by it.  ISM has delivered to Buyer correct and complete copies of ISM’s articles of incorporation and bylaws (as amended to date).
Section 2.02                      Authorization of Transaction; Enforceability .  ISM and Stockholders have the power and authority necessary to execute and deliver this Agreement and to perform their respective obligations hereunder.  The execution and delivery of this Agreement has been duly authorized by all necessary corporate, Stockholders or other action by ISM.  This Agreement has been duly executed and delivered by ISM and Stockholders.  This Agreement constitutes the valid and legally binding obligations of ISM and Stockholders, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).
Section 2.03                      Noncontravention .  To Seller’s knowledge, neither the execution and the delivery of this Agreement (including all exhibits attached hereto ), nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, Governmental Entity, or court to which Seller or Stockholders are subject or any provision of the charter, bylaws or other organizational documents of ISM or Stockholders, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which ISM or Stockholders is a party or by which it is bound or to which any of the Acquired Assets is subject (or result in the imposition of any Security Interest upon any of the Acquired Assets).
Section 2.04                      Brokers’ Fees .  ISM and Stockholders have no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated.
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  Section 2.05                      Client Lists or Prospects Lists Exhibit D attached hereto contains a complete and correct list of each Client List, as amended, including the date of such Client List and each amendment thereto.  With respect to each Client List:
(a)            each Client List and Prospect List is a true, accurate, and complete listing of each and every former client of ISM since inception of the Business;
(b)            there are no material disputes or threatened disputes with any Person listed on the Client List;
Section 2.06            Events Subsequent to January 1, 2018 .  To Seller’s knowledge, since XXX, 2018,  (a) there has occurred no event or development which, individually or in the aggregate, has had, or could reasonably be expected to have in the future, a Material Adverse Effect.  Without limiting the generality of the foregoing, since that date there has not been any:
(a)            declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock;
(b)            creation, incurrence or assumption of any indebtedness (including obligations in respect of capital leases); assumption, guaranty, endorsement or other creation of liability or responsibility (whether directly, contingently or otherwise) for the obligations of any other person or entity; or made any loans, advances or capital contributions to, or investments in, any other person or entity;
(c)            commitment to make any capital expenditure in excess of $3,000;
(d)            damage, destruction or loss, whether or not covered by insurance;
(e)            waiver by ISM of a right or of debt owed to it;
(f)            satisfaction or discharge of any encumbrance or payment of any obligation by ISM not in the ordinary course of business consistent with past practice and in an aggregate amount exceeding $1,000;
(g)            labor dispute, other than routine individual grievances, or any activity or proceeding to organize any employees of the Business, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees;
(h)            change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or payment of or agreement (written or oral) to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any, director, officer, employee, consultant or agent, or new employment, compensation or deferred compensation agreement (or any amendment of any such existing agreement);
(i)            initiation, receipt or settlement of any Proceeding or action affecting ISM or otherwise material to the Business;
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(j)            act to (i) accelerate the billing of any customers of ISM or the collection of any Accounts Receivable of ISM, (ii) delay the payment of any Accounts Payable or accrued expenses of ISM or (iii) defer any expenses of ISM; or
(k)            any agreement, whether oral or written, fixed or contingent, by ISM to do any of the foregoing.
Section 2.07                      Contracts .  Seller represents and warrants that ISM has delivered complete and accurate copies of each Contract to the Buyer as set forth on Schedule 2.07.  With respect to each Contract:
(a)            each Contract is the legal, valid, binding and enforceable obligation of ISM, and is in full force and effect with respect to ISM.
(b)            Each Contract will continue to be legal, valid, binding, enforceable by Buyer, and in full force and effect immediately following the Closing in accordance with the terms that are in effect immediately prior to the Closing;
(c)            ISM is in material compliance with the terms and conditions of each Contract;
(d)            there are no material disputes or threatened disputes with any Person under any Contract;
(e)            no party is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default, or permit termination, modification, or acceleration, under such Contract;
(f)            no Person has provided ISM with notice that it intends to terminate any Contract;
(g)            to the extent insurance is required under the terms of such Contract, ISM is in compliance with such requirements.
Section 2.08                      Litigation .  ISM or the Business is not (i) subject to any outstanding injunction, judgment, order, decree, ruling, or charge, or (ii) a party to or threatened to be made a party to any Proceeding.
(a)            Stockholders are not subject to any Proceeding relating to the Business that could reasonably have a Material Adverse Effect on the Business or is reasonably likely to affect the legality, validity or enforceability of this Agreement or any of the transactions contemplated hereby.
Section 2.09                      Warranties .  Except to provide support services in the Ordinary Course of Business neither the software licensed nor the services delivered by ISM are subject to any guaranty or, warranty; and there is no right of return, right of credit or other indemnity, except with respect to infringement of third-party intellectual property rights, breach by the ISM of its
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obligations under a Contract or as otherwise set forth herein.  ISM does not know of any reason why such expenses should significantly increase as a percentage of sales in the future.
Section 2.10                      Title to Tangible Personal Property .  Section 2.10 of the Disclosure Schedule lists the material tangible personal property of the Business which is used regularly in the Business.  Except as set forth in Section 2.10 of the Disclosure Schedule, the Seller has good and marketable title to, or a valid leasehold interest in, all of its assets and properties which are material to its business and operations as presently conducted, free and clear of all Liens, claims, charges or other encumbrances or restrictions on the transfer or use of same.  Except as would not have a Material Adverse Effect, the assets and properties of Seller are in good operating condition and repair, ordinary wear and tear excepted, and are free of any latent or patent defects which might impair their usefulness, and are suitable for the purposes for which they are currently used and for the purposes for which they are proposed to be used. All personal tangible property of the Business is freely assignable by Seller to Buyer. Buyer shall not be obligated to remove any tangible personal property from the premises of ISM.
Section 2.11                      Intellectual Property .
(a)            Section 2.11 of the Disclosure Schedule contains a complete and accurate list of all of the material Intellectual Property owned, used or held for use by ISM in the conduct of its Business and there is no other Intellectual Property owned, used or held for use by ISM material to the conduct of its Business.  Such Intellectual Property is the only Intellectual Property necessary to operate the Business materially as it is currently operated.
(b)            Section 2.11B of the Disclosure Schedule contains a complete and accurate list of all the Extended Solutions owned by ISM for resale. Such Intellectual Property is the only Intellectual Property explicitly excluded from the Acquired Assets.
(c)            Neither ISM nor the licensee nor other use of any Intellectual Property not owned by ISM included in the Acquired Assets has, to ISM’s knowledge, violated or infringed, and currently does not violate or infringe, upon the Intellectual Property of any Person.  ISM has not been a defendant in any action, suit, investigation or proceeding relating to, or otherwise has been notified of, any alleged claim of infringement of any other Person’s Intellectual Property, which Proceedings are still active, and ISM has no outstanding Proceedings for (or any knowledge of) any continuing infringement of Intellectual Property by any other Person.
(d)            ISM (i) is the sole and exclusive owner of, with all right, title and interest in and to (free and clear of any Security Interests), any and all Intellectual Property owned by it included in the Acquired Assets, (ii) has rights to the use of all such Intellectual Property used by it pursuant to license, sublicense, agreement, or permissions and, except as set forth in Section 2.11 of the Disclosure Schedule, is not contractually obligated to pay any compensation or grant any rights to any third party in respect thereof and (iii) has the right to require the application of any such Intellectual Property previously owned by ISM that constitutes an application for registration, including but not limited to all patent applications, trademark application service mark applications, copyright applications and mask work applications, and to transfer ownership to Buyer of the application and of the registration once it issues.
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(e)            To Seller’s knowledge, ISM has kept secret and has not disclosed the source code for any Intellectual Property previously owned by ISM to any Person other than in the Ordinary Course of Business to persons who are subject to the terms of a binding confidentiality agreement with respect thereto.  To Seller’s knowledge, ISM has taken all appropriate measure to protect the confidential and proprietary nature of any Intellectual Property previously owned by ISM including without limitation the use of confidentiality agreements with all of its employees or other persons having access to any source and object codes.
(f)            To Seller’s knowledge, any and all Intellectual Property owned by ISM included in the Acquired Assets that are registrations, including but not limited to all registered patents, trademarks, service marks, copyrights and masks works, are valid and subsisting and in full force and effect.
(g)            ISM has not granted any licenses to or other rights in any Intellectual Property included in the Acquired Assets to any Person; to ISM’s knowledge, no Person is currently using such Intellectual Property except in connection with the Business.
(h)            The execution, delivery and performance by Seller and Stockholders of this Agreement and the consummation of the transactions contemplated hereby and thereby shall not alter or impair or result in the loss of any rights or interests of Seller in any Intellectual Property included in the Acquired Assets owned by Seller or as to which Seller obtains any consent to the transactions contemplated hereby and all such Intellectual Property shall be owned or available for use by Buyer on identical terms and conditions immediately subsequent to the Closing.
(i)            To Seller’s knowledge, none of the Intellectual Property owned by ISM included in the Acquired Assets, if any, is subject to any outstanding order or agreement restricting in any manner the use of licensing thereof by ISM.
(j)            Except as set forth in Section 2.11 of the Disclosure Schedule, all of the Intellectual Property used in the Business is freely assignable to Buyer.
Section 2.12                      Disclosure .  No (i) representation or warranty by ISM or Stockholders contained in this Agreement or any certificate, or (ii) any statement contained in the Disclosure Schedule delivered to Buyer by or on behalf of ISM pursuant to this Agreement, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading.
ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer and Parent represent and warrant to Seller and Stockholders that the statements contained in this Article 3 are correct and complete as of the Closing Date.
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Section 3.01                      Organization of Buyer . Parent and Buyer are Delaware corporations duly incorporated, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
Section 3.02                      Authorization of Transaction .  Parent and Buyer have full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and thereunder.  The execution and delivery of this Agreement has been duly authorized by all necessary action by Parent and Buyer.  This Agreement has been duly executed and delivered by Parent and Buyer.  This Agreement constitutes the valid and legally binding obligation of Parent and Buyer, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).  Parent and Buyer shall provide Seller and Stockholders either (a) its Bylaws authorizing this transaction contemplated by this Agreement; or (b) its Board of Director Minutes authorizing this transaction contemplated by this Agreement.  Buyer represents and warrants that it has not within the two (2) years preceding this Agreement, contemplated or explored the filing of a bankruptcy petition on its behalf, and presently has no plan nor intention of doing so.
Section 3.03                      Noncontravention .  Neither the execution and the delivery of this Agreement (including the exhibits attached hereto), nor the consummation of the transactions contemplated hereby and thereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Parent or Buyer is subject or any provision of the organizational documents of Parent or Buyer or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which Parent or Buyer is a party or by which it is bound or to which any of its assets is subject. Neither Parent nor Buyer needs to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to enter into or perform its obligations under this Agreement.
Section 3.04                      Brokers’ Fees .  Neither Parent nor Buyer has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which ISM could become liable or obligated.
Section 3.05                      No Other Representations and Warranties .  Except as set forth in this Agreement, Parent and Buyer make no other representation or warranty, express or implied, with respect to any of the transactions contemplated by this Agreement, with respect to Parent and Buyer, or with respect to any other matter whatsoever.
Section 3.06                      Transition .  Immediately after the date hereof, Buyer and Stockholders will develop a joint client communication program, under which (among other things) Stockholders will make introductions to customers of the Business and assist in responding to any questions raised, and will encourage customers of the Business to move and maintain their business to Buyer and to consent as necessary to the transfer to Buyer of the Contracts and Client Lists, as applicable.  Neither ISM nor Stockholders will take any action that is designed or intended
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to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of ISM from maintaining the same business relationships with Buyer after the Closing as it maintained with ISM prior to the Closing.
ARTICLE 4
POST-CLOSING COVENANTS
Section 4.01                      General .  In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as the other Party reasonably may request, at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefore under Article 6 below).
Section 4.02                      Litigation Support .  In the event and for so long as any Party actively is contesting or defending against any Proceeding in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving the Business, the other Party will cooperate with the contesting or defending Party and its counsel in the contest or defense, make available its personnel, and provide such testimony and access to its books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefore under Article 6 below).
Section 4.03                      Proprietary Information .  From and after the Closing, neither ISM nor Stockholders shall, either directly or indirectly (including through an Affiliate), disclose to any third party or make use of (except as required by law or to pursue their rights, under this Agreement), any information or documents of a confidential nature concerning ISM, the Business, the Acquired Assets or the Buyer or its business, except to the extent that such information or documents shall have become public knowledge other than through improper disclosure by ISM or Stockholders or any of their Affiliates.
Section 4.04                      Solicitation and Hiring .  For a period of two years after the Closing Date, neither ISM nor Stockholders shall, so long as Buyer is not in default under the Promissory Note, either directly or indirectly (including through an Affiliate), (a) solicit or attempt to induce any Employee of Buyer to terminate his employment with Buyer or any Affiliate of Buyer or (b) hire or attempt to hire any Employee of Buyer.
Section 4.05                      Non-Solicitation .  ISM and the  Stockholders, personally, agree that in the event Stockholders’ employment is terminated by Buyer, or Stockholders cease to be employed by the Buyer, either via Stockholder’s voluntary termination of employment or, alternatively,  in accordance with the terms of his or her employment, then,  for the two (2) year period commencing  on the date of Stockholders’ last day of employ with Buyer, ISM and Stockholders agree to the following: (i) ISM and Stockholders shall not solicit any individual or entity set forth on Exhibit D; (ii)  ISM and Stockholders shall not solicit any individual or entity with whom Buyer, at the time of termination of the employment of any of the Stockholders,  is
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conducting business or has issued a proposal for the provision of software or services; and (iii) ISM and Stockholders shall not solicit in any way any of Buyer’s employees or contractors.
Section 4.06                      Apportionment .  If ISM or the Stockholders, or any of their Affiliates receive any amounts in payment of obligations owed to Buyer, including, but not limited to, payments owed to Buyer in respect of the Acquired Assets, then the receiving party shall promptly deliver or pay them over to Buyer. Also, within sixty (60) days following the Closing Date, Buyer and Seller shall exchange a reconciliation of all deposits, security or customer accounts in which funds are held as of the Closing Date in order to account for and pay out any unresolved credits or liabilities in existence as of the Closing Date. For the purpose of example only, this refers to prepaid time on projects, customer deposit accounts with unearned revenue, prepaid support, and security held pursuant to a lease. Liability for all remaining ISM payroll liabilities, such as earned but unpaid vacation, shall remain with, and be paid out by Seller.
Section 4.07                      Alternate Forms of Asset Transfer .
Buyer shall undertake performance of any obligation contained in the Acquired Assets, in ISM’s stead, and, if any such obligation cannot be assigned without the consent of a third party which shall not have been obtained, Buyer’s undertaking shall constitute a sub-contract of ISM’s obligation or other kind of arrangement between Buyer and ISM, if any, pursuant to which Buyer can undertake such performance (and receive the benefit thereof) without such third party’s consent; or if no such arrangement shall exist, Buyer shall nonetheless perform such obligation, unless the third party shall expressly reject Buyer’s performance, in which case, Buyer shall be released of the undertaking with respect to such obligation, and ISM  shall be liable for any damages that the third party shall establish that it suffered and indemnify Buyer and hold Buyer harmless with respect thereto.  Notwithstanding the foregoing, should ISM’s landlord reject the assignment of ISM’s current property lease to Buyer, Buyer shall pay all obligations under such lease regardless of whether it is assigned to Buyer or not so long as Buyer may occupy the leasehold space.
Section 4.08                       Left blank intentionally
Section 4.09                      Left blank intentionally
Section 4.10                      Certain Tax Considerations
(a)            All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with the sale of the Acquired Assets (including any real property transfer Tax and any similar Tax) shall be borne and paid by Buyer, when due, and Buyer will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges.
(b)            Buyer shall take all actions required to comply with all bulk sales laws, which may be applicable to the transactions contemplated herein, including, without limitation, the timely filing of any required Tax Returns.
(c)            For the avoidance of doubt, except as otherwise set forth in this Section 4.10, ISM shall be responsible for the filing of all Tax Returns and the payment of all Taxes
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(whether or not shown on such returns) with respect to ISM, the Acquired Assets and the Business for all periods up to and including the Closing Date and all such Taxes shall be Excluded Liabilities.
ARTICLE 5

CONDITIONS TO OBLIGATION TO CLOSE
Section 5.01            Conditions to Obligation of Buyer .  The obligation of Parent and Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a)            (i) the representations and warranties set forth in Article 2 above, shall be true and correct in all material respects, and (ii) all agreements and covenants contained in this Agreement shall have been performed or complied with by ISM, in each case, at and as of the Closing Date;
(b)            Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 5.01(a) is satisfied in all respects;
(c)            Seller shall have delivered to Buyer the bill of sale and assignment and assumption agreement required under Section 1.05, together with any other instrument of transfer necessary to convey to Buyer all of the Acquired Assets, which instruments shall be reasonably satisfactory in form and substance to Buyer;
(d)            there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e)             Buyer shall have delivered to Seller and Stockholders either (a) its Bylaws, or (b) its Board of Director Minutes, authorizing the transaction contemplated by this Agreement; and
(f)            Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of any and all Security Interests.
Buyer may waive any condition specified in this Section 5.01 if it executes a writing so stating at or prior to the Closing.
Section 5.02            Conditions to Obligation of Seller .  The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a)            (i) the representations and warranties set forth in Article 4 above shall be true and correct in all material respects and (ii) all agreements and covenants contained in this Agreement shall have been performed or complied with by Buyer, in each case, at and as of the Closing Date;
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(b)            Buyer shall have delivered to Seller a certificate to the effect that each of the conditions specified above in Section 5.02(a) are satisfied in all respects;
(c)            Buyer shall have delivered to Seller the items required under Section 3.02, together with any other instruments necessary to acquire right, title and interest in and to the Acquired Assets and to assume liability and responsibility for the Included Liabilities, which instruments shall be reasonably satisfactory in form and substance to Seller;
(d)            there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e)            ISM in coordination with Buyer shall have timely filed any and all required Tax Returns necessary to comply with all bulk sales laws which may be applicable to the transactions contemplated herein, and
Seller may waive any condition specified in this Section 5.02 if it executes a writing so stating at or prior to the Closing.
ARTICLE 6

REMEDIES FOR BREACHES OF THIS AGREEMENT.
Section 6.01            Survival .  All of the representations, warranties and covenants contained in this Agreement, and the Exhibits and Disclosure Schedule attached hereto shall survive the Closing and remain in full force and effect until the second anniversary of the Closing Date.
Section 6.02            Indemnification.
(a)            ISM and Stockholders agree to indemnify, defend and hold harmless Buyer, its Affiliates and, if applicable, their respective directors, managers, officers, shareholders, members, partners, employees, attorneys, accountants, agents and representatives and their heirs, successors and assigns from and against any and all Adverse Consequences based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation, warranty or covenant of ISM or Stockholders contained in this Agreement, and (ii) any Adverse Consequences Buyer shall suffer from, or any Third Party Claim, arising out of or in connection with, the Business, the Acquired Assets prior to the Closing Date.
(b)            Parent and Buyer agree to indemnify, defend and hold harmless ISM, Stockholders, and their Affiliates and, if applicable, their respective directors, managers, officers, shareholders, members, partners, employees, attorneys, accountants, agents and representatives and their heirs, successors and assigns from and against any and all Adverse Consequences based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation, warranty or covenant of Parent or Buyer contained in this Agreement, and (ii) any Adverse Consequences ISM shall suffer from, or any Third Party Claim, arising out of or in connection with, the Business or the Acquired Assets after the Closing Date, which shall specifically include the remaining obligation on ISM’s present leasehold interest in the event its landlord rejects the assignment of ISM’s current property lease to Buyer.
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(c)            The obligations to indemnify and hold harmless pursuant to paragraphs (a) and (b) of this Section 6.02 shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 6.01, except for claims for indemnification asserted prior to the end of such period, which claims shall survive until final resolution thereof.
(d)            In no event shall indemnification obligations set forth in this Section 6.02 exceed an amount equal to the Purchase Price.

Section 6.03            Matters Involving Third Parties .
(a)            If any Party entitled to be indemnified pursuant to Section 6.02 (an “ Indemnified Party ”) receives notice of the assertion of any claim in respect of Adverse Consequences (a “ Third Party Claim ”), such Indemnified Party shall give the party who may become obligated to provide indemnification hereunder (the “ Indemnifying Party ”) written notice describing such claim or fact in reasonable detail (the “ Notice of Claim ”) promptly (and in any event within ten (10) Business Days after receiving any written notice from a third party).  The failure by the Indemnified Party to timely provide a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party of any liability, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to provide timely notice hereunder.
(b)            In the event any Indemnifying Party notifies the Indemnified Party within ten (10) Business Days after the Indemnified Party has provided a Notice of Claim that the Indemnifying Party is assuming the defense thereof: (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice, subject to the consent of the Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest); (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party; and (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
(c)            In the event the Indemnifying Party does not notify the Indemnified Party within ten (10) Business Days after the Indemnified Party provides the Indemnifying Party with a Notice of Claim that the Indemnifying Party is assuming the defense thereof, then the Indemnified Party shall have the right, subject to the provisions of this Article, to undertake the defense, compromise or settlement of such claim for the account of the Indemnifying Party.  Unless and until the Indemnifying Party assumes the defense of any claim, the Indemnifying Party shall advance to the Indemnified Party any of its reasonable attorneys’ fees and other costs and expenses incurred in connection with the defense of any such action or proceeding.  Each Indemnified Party shall agree in writing prior to any such advance that, in the event it receives any such advance, such Indemnified Party shall reimburse the Indemnifying Party for such fees, costs and expenses
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to the extent that it shall be determined that it was not entitled to indemnification under this Article 6.
(d)            In the event that the Indemnifying Party undertakes the defense of any claim, the Indemnifying Party will keep the Indemnified Party advised as to all material developments in connection with such claim, including, but not limited to, promptly furnishing the Indemnified Party with copies of all material documents filed or served in connection therewith.
ARTICLE 7

EMPLOYEES OF THE BUSINESS
Section 7.01            No Obligations to Employees .  Except as provided in this Agreement, ISM shall be solely responsible for all obligations it may have with respect to any and all Employees of ISM.
Section 7.02            Commission Payments Owed By Seller .  Buyer shall not be responsible for any outstanding commission payments due to Employees for the period prior to the Closing. Stockholders and ISM represent and agree that the payment of such commissions is an obligation of Stockholders and ISM. Stockholders further represent that they shall, on the Closing Date, pay Employees any and all outstanding commission amounts due from ISM to the extent not already paid by ISM.
ARTICLE 8

MISCELLANEOUS.
Section 8.01            Press Releases and Public Announcements .  Commencing on the Closing Date, Buyer may issue any press release or make any public announcement relating to the subject matter of this Agreement. Seller and Stockholders are precluded at all times from issuing any press release or making any public announcement relating to the subject matter of this Agreement without the prior written approval of the Buyer.
Section 8.02            No Third-Party Beneficiaries .  This Agreement shall not confer any rights or remedies upon any Person other than the Parties, the Indemnified Parties and their respective successors and permitted assigns.
Section 8.03            Entire Agreement .  This Agreement (including the documents referred to herein) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they related in any way to the subject matter hereof.
Section 8.04            Succession and Assignment .  This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns.  No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party; p rovided, however , that Buyer may (i) assign any or all of its rights and interests hereunder to one or more of its Affiliates and (ii) designate one or more of its Affiliates to perform its obligations hereunder (in any or all of which
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cases Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder).
Section 8.05            Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
Section 8.06            Headings .  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 8.07            Notices .  Any notice or other communications hereunder must be in writing and shall be deemed to have been duly given and received on the day on which it is served by personal delivery upon the party for whom it is intended, on the third Business Day after it is mailed by registered or certified mail, return receipt requested, on the Business Day after it is delivered to a national courier service addressed to the party for whom it is intended, or on the Business Day on which it is sent by telecopier; provided, that the telecopy is promptly confirmed by telephone confirmation thereof, to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
To Buyer:
SWK Technologies, Inc.
120 Eagle Rock Avenue, Suite 330
East Hanover, NJ  07936
Telephone: (973) 758-6100
Attention: Mark Meller

With copies to:

Lucosky Brookman, LLP
101 Wood Avenue South, 5 th Floor
Iselin, New Jersey 08830
Telephone: (732) 395-4400
Attention: Joseph M. Lucosky, Esq.


To ISM and Stockholders:

Info Sys Management, Inc.
2300 SE Beta Street, Suite A
Portland, Oregon 97222
Attention:  Brian James O’Reilly
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With copies to:

James Ambrose
 


Section 8.08            Governing Law.
(a)            This Agreement shall be governed by and construed in accordance with the domestic laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New Jersey.
(b)            Any judicial proceeding brought with respect to this Agreement by Stockholders and/or ISM or the Buyer  must be brought in the United States District Court in the State of New Jersey or any court of competent jurisdiction in the State of New Jersey located in Middlesex County; and, each Party: (i) accepts unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and agrees to be bound by any final, non-appealable judgment rendered thereby in connection with this Agreement; and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum; provided , however , that such consent to jurisdiction is solely for the purpose referred to in this Section and shall not be deemed to be a general submission to the jurisdiction of said Courts or the State of  New Jersey other than for such purpose.
(c)            THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT.
Section 8.09            Amendments and Waivers .  No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Parent, Buyer and ISM.  No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
Section 8.10            Severability .  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
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Section 8.11            Expenses .  Each of ISM, Stockholders, Parent and Buyer will bear their own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
Section 8.12            Construction .  Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation.  The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Personal pronouns, when used in this Agreement, whether in the masculine, feminine or neuter gender, shall include all other genders, and the singular, shall include the plural, and vice versa.
Section 8.13            Incorporation of Exhibits and Schedules .   The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.
Section 8.14            No Breach of Fiduciary Duty Required .  Nothing in this Agreement shall require, or be construed to require ISM or Stockholders to take any action or omit to take any action that would be a breach of its fiduciary duties under any agreement to which it is a party or under Applicable Law or which would otherwise be contrary to applicable law.  Without limiting the generality of the foregoing, nothing herein shall require ISM or Stockholders to exercise its discretion to provide any consent or other authorization on behalf of any other Person for which it acts in a fiduciary capacity if such consent or authorization is within its discretion in such fiduciary capacity.  The Parties shall cooperate in good faith to avoid any such breach of fiduciary duties or applicable laws while preserving the overall economic terms of this Agreement and the benefits intended to be provided to the respective Parties hereunder.
Section 8.15            Enforcement If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and expenses.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as of the date first above written.

SWK TECHNOLOGIES, INC.




By:  _______________________________
Mark Meller
         Chief Executive Officer


SILVERSUN TECHNOLOGIES, INC.




By:  _______________________________
Mark Meller
         Chief Executive Officer
 


INFO SYS MANAGEMENT, INC.




By:  ________________________________
Brian James O’Reilly
President
 
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STOCKHOLDERS



________________________________          
Brian James O’Reilly

STOCKHOLDER



________________________________          
Carla Brown

STOCKHOLDER



________________________________          
Jennifer Tuck





Signature Page to ISM APA

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EXHIBIT A

CONVERTIBLE PROMISSORY NOTE
 
 
 
 
 
 
 
 
 
 
 
 



EXHIBIT B

BILL OF SALE
 
 
 
 
 
 
 
 
 
 



EXHIBIT C

ASSIGNMENT AND ASSUMPTION AGREEMENT
 
 
 
 
 
 
 
 
 
 



 



SCHEDULE 2

PRODUCTS, PRODUCT LINES, AND ENHANCEMENTS
 
 
 
 
 
 
 
 



DISCLOSURE SCHEDULE

2.07

CONTRACTS
 
 
 
 
 
 



2.10

LEASEHOLDS
 
 
 
 
 
 
 
 
 

2.11

INTELLECTUAL PROPERTY
 
 
 
 
 
 
 
 
 
 
 
 


2.11B

Extended Solutions owned by ISM for resale
 
 
 
 
 
 
 
 
 

Exhibit 2.2



ASSET PURCHASE AGREEMENT


by and among

SILVERSUN TECHNOLOGIES, INC .

As Parent


SECURE CLOUD SERVICES, INC.,

As Buyer


and



NELLNUBE, INC.

As Seller

and


INFO SYS MANAGEMENT, INC


As Stockholder





May ___, 2018


i

ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”) is dated May XX, 2018, by and among Secure Cloud Services, Inc.., a Nevada  corporation, located at 120 Eagle Rock Avenue, East Hanover, NJ  07936 (“ Buyer ”); SilverSun Technologies, Inc., located at 120 Eagle Rock Avenue, East Hanover, NJ  07936 (“SSNT” or the “Parent”),Nellnube, Inc., an Oregon corporation, located at 2300 SE Beta Street, Suite A, Portland, Oregon 97222  (“ Seller ” or “ NN ”), and Info Sys Management, Inc., an Oregon corporation, located at 2300 SE Beta Street, Suite A, Portland, Oregon 97222 (the “ Stockholder ”), owner of all the issued and outstanding capital stock of NN.  Buyer, Seller, and Stockholders are sometimes each referred to separately as a “ Party ” and collectively herein as the “ Parties .”
W I T N E S S E T H :
WHEREAS, Seller is primarily engaged in the business of hosting software applications for third parties;
WHEREAS, Seller has agreed to sell certain assets to Buyer, and Buyer wishes to purchase from Seller certain assets with respect to the Business on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Seller desires to transfer, and Buyer is willing to assume, certain liabilities relating to the Business;
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.
ARTICLE 1

DEFINITIONS
For purposes of this Agreement, the following terms have the meanings assigned to them in this Article 1:
 “ Acquired Assets ” means any and all assets of NN (excluding the Excluded Liabilities), including but not limited to the following:
(a)            the Client Lists and Prospect Lists, along with all rights, benefits and privileges arising thereunder or with respect thereto which are set forth on Exhibit D attached hereto;
(b)            the Contracts, along with all rights, benefits and privileges arising thereunder or with respect thereto which are set forth on Section 2.07 of the Disclosure Schedule;
(c)            all files, correspondence, agreements and other documents relating to the Client Lists, Prospect Lists, Contracts and Intellectual Property;
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(d)            certain tangible personal property (such as equipment and furniture) which are set forth in Section 2.10 of the Disclosure Schedule;
(e)            the Intellectual Property of the Business including, without limitation the Intellectual Property which is set forth in Section 2.11 of the Disclosure Schedule.
(f)            all goodwill of NN and all other assets related to or used in connection with the Business so long as they are related to an Acquired Asset;
(g)            all deposits with NN’s landlord, utility companies, and all other such deposits;
(h)            cash equal to the unearned revenue, prepaid blocks of time,  and customer deposits of NN shown on the balance sheet of NN as of the Closing Date;
(i)            any and all other assets of NN not mentioned above, except all policies of life and disability insurance on any and all Stockholders, and all rights and benefits thereunder.
Adverse Consequences ” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and expenses.
Accounts Payable ” the aggregate amount of a NN’s short term obligations to pay suppliers for products and services.
Agreement ” has the meaning set forth in the preface above.
Applicable Law ” means any constitutional provision, statute or ordinance, whether foreign, federal, state or local, applicable in the United States or any other nation, including any other law, rule, regulation, judgment, injunction, order, executive order, ruling, assessment, writ, decree or interpretation thereof of any Governmental Entity, or any common law.
 “ Business   means all of the business and operations of NN.
Business Day ” means any day other than a day that is a Saturday, Sunday or legal holiday in New York, New York.
Buyer ” has the meaning set forth in the preface above.
 “ Client Lists ” means any and all lists, spreadsheets, worksheets and tables of any type or form identifying each and every client and former client of NN as of the Closing Date which are listed on Exhibit D attached hereto.
Closing ” has the meaning set forth in Section 1.04 below.
Closing Date   has the meaning set forth in Section 1.04 below.
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Code ” means the Internal Revenue Code of 1986, as amended.
Contracts ” means the following: (i) all employment agreements; (ii) all customer software applications and/or partner proposals containing specifications of modifications to software; (iii) all Licenses (whether written or oral); (iv) all non-compete and non-solicitation agreements; and (v) all active leases applying to any equipment located in the offices of NN.
Disclosure Schedule   has the meaning set forth in Article 2 below.
Employees ” means the employees of the Business.
Environmental Law ” means a legal rule pertaining to land use, air, soil, surface water, groundwater (including the protection, cleanup, removal, remediation or damage thereof), public or employee health or safety or any other environmental matter, including, without limitation, the following laws as the same have been amended from time to time: (i) Clean Air Act (42 U.S.C. § 7401, et seq. ); (ii) Clean Water Act (33 U.S.C. § 1251, et seq. ); (iii) Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq. ); (iv) Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq. ); (v) Safe Drinking Water Act (42 U.S.C. § 300f, et seq. ); and (vi) Toxic Substances Control Act (15 U.S.C. § 2601, et seq. ); (vii) Rivers and Harbors Act (33 U.S.C. § 401, et seq. ); together with all other legal rules regulating emissions, discharges, releases or threatened releases of any hazardous substance into ambient air, land, surface water, groundwater, personal property or structures, or otherwise regulating the manufacture, processing, distribution, use, treatment, storage, disposal, transport, discharge or handling of any hazardous substance.
Excluded Liabilities ” means all liabilities of NN of any nature whatsoever and wherever situated not included in “Included Liabilities”, including without limitation:
(a)            Bank lines of credit, accrued liabilities and any liabilities or obligations that should have been paid prior to the Closing Date in NN’s ordinary course of business relating to any employee, any Plan, any employee benefits or commissions, salaries, wages or other compensation arrangements existing on or prior to the Closing Date with respect to NN or the Business;
(b)            any Taxes of NN and any other Taxes accruing on or prior to the Closing Date;
(c)            any liabilities relating to any current pending or threatened litigation, arbitration or any other Proceeding against NN or any future litigation, arbitration or Proceeding relating to the Acquired Assets to the extent related to events occurring prior to the Closing Date;
(d)            any liabilities arising out of any violation of Environmental Law;
(e)            any liabilities for legal fees and expenses of NN related to the transactions contemplated hereby.
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(f)            any amount due related to life insurance and disability policies of the Stockholders.
(g)            Accounts Payable;
(h)            Any and all other liabilities not expressly assumed in Included Liabilities.
Fixed Conversion Price” shall be that price equal to the average closing price of SSNT’s Common Stock for the five (5) trading days immediately preceding the Closing Date.
GAAP ” means United States generally accepted accounting principles as in effect from time to time.
Governmental Entity ” shall mean any government (including any United States of foreign federal, state, provincial, cantonal, municipal or county government), any political subdivision thereof and any governmental, administrative, ministerial, regulatory, central bank, self‑regulatory, quasi‑governmental, taxing, executive, or legislative department, commission, body, agency, authority or instrumentality of any thereof.
 “ Included Liabilities ” shall mean the following liabilities only :
a.
Client deposits and prepaid blocks of time;
b.
Equipment leases for equipment currently in production.
Indemnified Party ” has the meaning set forth in Section 6.03 below.
Indemnifying Party ” has the meaning set forth in Section 6.03 below.
Intellectual Property ” means: (a) inventions (whether patentable or unpatentable and whether or not reduced to practice), improvements thereon, and patents, patent applications and patent disclosures, together with reissues, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) trademarks, service marks, trade dress, logos, trade names, URLs, websites, domain names and corporate names, together with translations, adaptations, derivations, and combinations thereof, and including but not limited to goodwill associated therewith, applications, registrations and renewals in connections therewith, and the rights to use the Internet domain name “http://www.goNN.com” and all iterations and permutations thereof, together with all logos, slogans, trademarks, and service marks relating thereto used by NN in connection therewith; (c) copyrightable works, copyrights, and applications, registrations and renewals in connections therewith, mask works and applications, registrations and renewals in connections therewith; (d) trade secrets and confidential business information (including but not limited to research and development, know-how, formulas, compositions, manufacturing and reproductions processes and techniques, methods, schematics, technology, flowcharts, block diagrams, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals); (e) computer software (including but not limited to data related documentation); (f) copies and
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tangible embodiments of any of the foregoing (in whatever form or medium); and (g) licenses, sublicenses, permissions or contacts in connection with any of the foregoing.
Intellectual Property Rights ” means the rights or interest of any Person in or to any Intellectual Property.
Judicial Authority ” shall mean any court, arbitrator, special master, receiver, tribunal or similar body of any kind.
Knowledge ” means actual knowledge of a Person without being under any duty to investigate.
License ” means any agreement between NN and end user which establishes rights under which NN’s software application may be used.
 “ Material Adverse Effect ” means (i) with respect to NN, a material adverse effect on (A) the Acquired Assets, (B) the ability of NN to perform its obligations under this Agreement, or (C) the validity or enforceability of this Agreement, and (ii) with respect to Buyer, a material adverse effect on (A) the ability of Buyer to perform its obligations under this Agreement, or (B) the validity or enforceability of this Agreement.
Notice of Claim ” has the meaning set forth in Section 6.03.
Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).
Party ” has the meaning set forth in the preface above.
Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
 “ Proceeding ” shall mean any action, suit, counter‑claim, arbitration, mediation, litigation, inquiry, hearing, investigation or other proceeding of any kind involving any Governmental Entity, any Judicial Authority or any other Person.
Product ” “ Product Lines ” and “ Enhancements ” means the products set forth on Schedule 2.
Prospect Lists ” means any and all lists, spreadsheets, worksheets and tables of any type or form identifying each and every prospect, potential prospects, leads or business opportunities of NN as of the Closing Date which are listed on Exhibit D attached hereto.
Purchase Price ” has the meaning set forth in Section 1.02 below.
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Security Interest ” means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic’s, materialmen’s, and similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the taxpayer is contesting in good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
NN ” has the meaning set forth in the preface above.
 “ Stockholders ” has the meaning set forth in the preface above.
 “ Taxes ” means (A) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties and other taxes of any kind whatsoever, together with all interest and penalties, additions to tax and other additional amounts imposed by any Governmental Entity on such entity, and (B) any liability for the payment of any amount of the type described in the immediately preceding clause (A) as a result of being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another entity, a member of an affiliated or combined group, a contract or otherwise.
Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule, exhibit or attachment thereto.
Third Party Claim ” has the meaning set forth in Section 6.03 below.
 
BASIC TRANSACTION
Section 1.01                      Purchase and Sale of Assets .  On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell, transfer, convey, and deliver to Buyer, all of the Acquired Assets at the Closing in consideration of the payments by Buyer of the Purchase Price (as defined below), plus such other amounts, as specified below in Section 1.02, and Buyer shall further assume all of the Included Liabilities, as specified below in Section 1.03.
Section 1.02                      Purchase Price .  Payments shall be made (the “ Purchase Price ”) in accordance with the following:
(i)            On the Closing Date, Parent shall issue NN a convertible note (the “Note”), in form noted in Exhibit A attached hereto, in the principal amount of $400,000.  The Note shall bear interest at two percent (2%) per annum, and shall mature on May 31, 2023.    Interest and principal shall be paid monthly in sixty (60) equal installments of $7,011.10 per month.   Parent may prepay the Note, in whole or in part, at any time.  The Note will be convertible, at the option of NN or its assignee, into shares of common stock of SSNT, at the Fixed Conversion Price.

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Section 1.03                      Assumption of Liabilities .  As further consideration for the sale of Acquired Assets, Buyer shall, without any further responsibility or liability of, or recourse to, Seller, or any of Seller’s directors, shareholders, officers, employees, agents, consultants, representatives, affiliates, successors or assigns, absolutely and irrevocably assume and be solely liable and responsible for the Included Liabilities. Save and except for the Included Liabilities, Buyer shall not assume or have responsibility for any other Seller liabilities of any type whatsoever.
Section 1.04                      Closing .  The Closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place on May 31, 2018, at the offices of Lucosky Brookman LLP, located at 101 Wood Avenue South, Woodbridge, New Jersey 08830.  The date on which the Closing occurs is referred to herein as the (“ Closing Date ”) and the Closing shall be deemed effective as of 12:00 a.m. New York time on the day immediately following the Closing Date.
Section 1.05                      Deliveries at the Closing .  At the Closing, (i) NN will deliver to Buyer the various certificates, instruments, and documents referred to in Section 5.01 below; (ii) Buyer will deliver to Seller the various certificates, instruments, and documents referred to in Section 6.02 below; (iii) Seller will execute, acknowledge (if appropriate), and deliver to Buyer (A) a bill of sale in the form attached hereto as Exhibit B , (B) an assignment and assumption agreement in the form attached hereto as Exhibit C , and (C) such other instruments of sale, transfer, conveyance and assignment as Buyer and its counsel reasonably may request; (iv) Buyer will execute, acknowledge (if appropriate), and deliver to Seller (A) an assignment and assumption agreement in the form attached hereto as Exhibit C , and (B) such other instruments of assumption as Seller and its counsel reasonably may request; (v) the Parties shall make payments and deliveries in accordance with Section 1.02 herein.
Section 1.06                      Allocation .  The Parties agree to allocate the Purchase Price (and all other capitalizable costs) among the Acquired Assets for all purposes (including financial accounting and tax purposes) in accordance with Section 1.02 herein, which the parties agree will result in an aggregate allocation to the tangible assets of $50,000. The Parties shall make all necessary filings (including those under Section 1060 of the Code) in accordance with such allocation.
ARTICLE 2  

REPRESENTATIONS AND WARRANTIES OF SELLER AND STOCKHOLDERS
Seller and Stockholders represent and warrant to Buyer, jointly and severally, that the statements contained in this Article 2 are correct and complete as of the date hereof and as of the Closing Date, except as set forth in the disclosure schedule accompanying this Agreement or any amendments (or deemed amendments thereto) (the “ Disclosure Schedule ”). Seller represents and warrants to Buyer that to Seller’s knowledge, the statements contained in this Article 2 are correct and complete as of the Closing Date, except as set forth in the Disclosure Schedule. The
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Disclosure Schedule will be arranged in sections corresponding to the lettered and numbered sections contained in this Article 2.
Section 2.01                      Organization of NN .  NN is a corporation or other business entity duly organized, validly existing, and in good standing under the laws of the jurisdiction of State of Oregon.  NN has all requisite corporate power and authority to carry on the businesses in which it is engaged, to carry on the Business proposed to be conducted by the Buyer and to own and use the properties owned and used by it.  NN has delivered to Buyer correct and complete copies of NN’s articles of incorporation and bylaws (as amended to date).
Section 2.02                      Authorization of Transaction; Enforceability .  NN and Stockholders have the power and authority necessary to execute and deliver this Agreement and to perform their respective obligations hereunder.  The execution and delivery of this Agreement has been duly authorized by all necessary corporate, Stockholders or other action by NN.  This Agreement has been duly executed and delivered by NN and Stockholders.  This Agreement constitutes the valid and legally binding obligations of NN and Stockholders, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).
Section 2.03                      Noncontravention .  To Seller’s knowledge, neither the execution and the delivery of this Agreement (including all exhibits attached hereto ), nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, Governmental Entity, or court to which Seller or Stockholders are subject or any provision of the charter, bylaws or other organizational documents of NN or Stockholders, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which NN or Stockholders is a party or by which it is bound or to which any of the Acquired Assets is subject (or result in the imposition of any Security Interest upon any of the Acquired Assets).
Section 2.04                      Brokers’ Fees .  NN and Stockholders have no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated.
Section 2.05                      Client Lists or Prospects Lists Exhibit D attached hereto contains a complete and correct list of each Client List, as amended, including the date of such Client List and each amendment thereto.  With respect to each Client List:
(a)            each Client List and Prospect List is a true, accurate, and complete listing of each and every former client of NN since inception of the Business;
(b)            there are no material disputes or threatened disputes with any Person listed on the Client List;
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Section 2.06            Events Subsequent to January 1, 2018 .  To Seller’s knowledge, since XXX, 2018,  (a) there has occurred no event or development which, individually or in the aggregate, has had, or could reasonably be expected to have in the future, a Material Adverse Effect.  Without limiting the generality of the foregoing, since that date there has not been any:
(a)            declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock;
(b)            creation, incurrence or assumption of any indebtedness (including obligations in respect of capital leases); assumption, guaranty, endorsement or other creation of liability or responsibility (whether directly, contingently or otherwise) for the obligations of any other person or entity; or made any loans, advances or capital contributions to, or investments in, any other person or entity;
(c)            commitment to make any capital expenditure in excess of $3,000;
(d)            damage, destruction or loss, whether or not covered by insurance;
(e)            waiver by NN of a right or of debt owed to it;
(f)            satisfaction or discharge of any encumbrance or payment of any obligation by NN not in the ordinary course of business consistent with past practice and in an aggregate amount exceeding $1,000;
(g)            labor dispute, other than routine individual grievances, or any activity or proceeding to organize any employees of the Business, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees;
(h)            change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or payment of or agreement (written or oral) to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any, director, officer, employee, consultant or agent, or new employment, compensation or deferred compensation agreement (or any amendment of any such existing agreement);
(i)            initiation, receipt or settlement of any Proceeding or action affecting NN or otherwise material to the Business;
(j)            act to (i) accelerate the billing of any customers of NN or the collection of any Accounts Receivable of NN, (ii) delay the payment of any Accounts Payable or accrued expenses of NN or (iii) defer any expenses of NN; or
(k)            any agreement, whether oral or written, fixed or contingent, by NN to do any of the foregoing.
Section 2.07                      Contracts .  Seller represents and warrants that NN has delivered complete and accurate copies of each Contract to the Buyer as set forth on Schedule 2.07.  With respect to each Contract:
9


(a)            each Contract is the legal, valid, binding and enforceable obligation of NN, and is in full force and effect with respect to NN.
(b)            Each Contract will continue to be legal, valid, binding, enforceable by Buyer, and in full force and effect immediately following the Closing in accordance with the terms that are in effect immediately prior to the Closing;
(c)            NN is in material compliance with the terms and conditions of each Contract;
(d)            there are no material disputes or threatened disputes with any Person under any Contract;
(e)            no party is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default, or permit termination, modification, or acceleration, under such Contract;
(f)            no Person has provided NN with notice that it intends to terminate any Contract;
(g)            to the extent insurance is required under the terms of such Contract, NN is in compliance with such requirements.
Section 2.08                      Litigation .  NN or the Business is not (i) subject to any outstanding injunction, judgment, order, decree, ruling, or charge, or (ii) a party to or threatened to be made a party to any Proceeding.
(a)            Stockholders are not subject to any Proceeding relating to the Business that could reasonably have a Material Adverse Effect on the Business or is reasonably likely to affect the legality, validity or enforceability of this Agreement or any of the transactions contemplated hereby.
Section 2.09                      Warranties .  Except to provide support services in the Ordinary Course of Business neither the software licensed nor the services delivered by NN are subject to any guaranty or, warranty; and there is no right of return, right of credit or other indemnity, except with respect to infringement of third-party intellectual property rights, breach by the NN of its obligations under a Contract or as otherwise set forth herein.  NN does not know of any reason why such expenses should significantly increase as a percentage of sales in the future.
Section 2.10                      Title to Tangible Personal Property .  Section 2.10 of the Disclosure Schedule lists the material tangible personal property of the Business which is used regularly in the Business.  Except as set forth in Section 2.10 of the Disclosure Schedule, the Seller has good and marketable title to, or a valid leasehold interest in, all of its assets and properties which are material to its business and operations as presently conducted, free and clear of all Liens, claims, charges or other encumbrances or restrictions on the transfer or use of same.  Except as would not have a Material Adverse Effect, the assets and properties of Seller are in good operating condition and repair, ordinary wear and tear excepted, and are free of any latent or patent defects which might impair their usefulness, and are suitable for the purposes for which they are currently used
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and for the purposes for which they are proposed to be used. All personal tangible property of the Business is freely assignable by Seller to Buyer. Buyer shall not be obligated to remove any tangible personal property from the premises of NN.
Section 2.11                      Intellectual Property .
(a)            Section 2.11 of the Disclosure Schedule contains a complete and accurate list of all of the material Intellectual Property owned, used or held for use by NN in the conduct of its Business and there is no other Intellectual Property owned, used or held for use by NN material to the conduct of its Business.  Such Intellectual Property is the only Intellectual Property necessary to operate the Business materially as it is currently operated.
(b)            Neither NN nor the licensee nor other use of any Intellectual Property not owned by NN included in the Acquired Assets has, to NN’s knowledge, violated or infringed, and currently does not violate or infringe, upon the Intellectual Property of any Person.  NN has not been a defendant in any action, suit, investigation or proceeding relating to, or otherwise has been notified of, any alleged claim of infringement of any other Person’s Intellectual Property, which Proceedings are still active, and NN has no outstanding Proceedings for (or any knowledge of) any continuing infringement of Intellectual Property by any other Person.
(c)            NN (i) is the sole and exclusive owner of, with all right, title and interest in and to (free and clear of any Security Interests), any and all Intellectual Property owned by it included in the Acquired Assets, (ii) has rights to the use of all such Intellectual Property used by it pursuant to license, sublicense, agreement, or permissions and, except as set forth in Section 2.11 of the Disclosure Schedule, is not contractually obligated to pay any compensation or grant any rights to any third party in respect thereof and (iii) has the right to require the application of any such Intellectual Property previously owned by NN that constitutes an application for registration, including but not limited to all patent applications, trademark application service mark applications, copyright applications and mask work applications, and to transfer ownership to Buyer of the application and of the registration once it issues.
(d)            To Seller’s knowledge, NN has kept secret and has not disclosed the source code for any Intellectual Property previously owned by NN to any Person other than in the Ordinary Course of Business to persons who are subject to the terms of a binding confidentiality agreement with respect thereto.  To Seller’s knowledge, NN has taken all appropriate measure to protect the confidential and proprietary nature of any Intellectual Property previously owned by NN including without limitation the use of confidentiality agreements with all of its employees or other persons having access to any source and object codes.
(e)            To Seller’s knowledge, any and all Intellectual Property owned by NN included in the Acquired Assets that are registrations, including but not limited to all registered patents, trademarks, service marks, copyrights and masks works, are valid and subsisting and in full force and effect.
(f)            NN has not granted any licenses to or other rights in any Intellectual Property included in the Acquired Assets to any Person; to NN’s knowledge, no Person is currently using such Intellectual Property except in connection with the Business.
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(g)            The execution, delivery and performance by Seller and Stockholders of this Agreement and the consummation of the transactions contemplated hereby and thereby shall not alter or impair or result in the loss of any rights or interests of Seller in any Intellectual Property included in the Acquired Assets owned by Seller or as to which Seller obtains any consent to the transactions contemplated hereby and all such Intellectual Property shall be owned or available for use by Buyer on identical terms and conditions immediately subsequent to the Closing.
(h)            To Seller’s knowledge, none of the Intellectual Property owned by NN included in the Acquired Assets, if any, is subject to any outstanding order or agreement restricting in any manner the use of licensing thereof by NN.
(i)            Except as set forth in Section 2.11 of the Disclosure Schedule, all of the Intellectual Property used in the Business is freely assignable to Buyer.
Section 2.12                      Disclosure .  No (i) representation or warranty by NN or Stockholders contained in this Agreement or any certificate, or (ii) any statement contained in the Disclosure Schedule delivered to Buyer by or on behalf of NN pursuant to this Agreement, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading.
ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer and Parent represent and warrant to Seller and Stockholders that the statements contained in this Article 3 are correct and complete as of the Closing Date.
Section 3.01                      Organization of Buyer . Parent and Buyer are Delaware corporations duly incorporated, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
Section 3.02                      Authorization of Transaction .  Parent and Buyer have full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and thereunder.  The execution and delivery of this Agreement has been duly authorized by all necessary action by Parent and Buyer.  This Agreement has been duly executed and delivered by Parent and Buyer.  This Agreement constitutes the valid and legally binding obligation of Parent and Buyer, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).  Parent and Buyer shall provide Seller and Stockholders either (a) its Bylaws authorizing this transaction contemplated by this Agreement; or (b) its Board of Director Minutes authorizing this transaction contemplated by this Agreement.  Buyer represents and warrants that it has not within the two (2) years preceding this Agreement, contemplated or explored the filing of a bankruptcy petition on its behalf, and presently has no plan nor intention of doing so.
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Section 3.03                      Noncontravention .  Neither the execution and the delivery of this Agreement (including the exhibits attached hereto), nor the consummation of the transactions contemplated hereby and thereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Parent or Buyer is subject or any provision of the organizational documents of Parent or Buyer or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which Parent or Buyer is a party or by which it is bound or to which any of its assets is subject. Neither Parent nor Buyer needs to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to enter into or perform its obligations under this Agreement.
Section 3.04                      Brokers’ Fees .  Neither Parent nor Buyer has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which NN could become liable or obligated.
Section 3.05                      No Other Representations and Warranties .  Except as set forth in this Agreement, Parent and Buyer make no other representation or warranty, express or implied, with respect to any of the transactions contemplated by this Agreement, with respect to Parent and Buyer, or with respect to any other matter whatsoever.
Section 3.06                      Transition .  Immediately after the date hereof, Buyer and Stockholders will develop a joint client communication program, under which (among other things) Stockholders will make introductions to customers of the Business and assist in responding to any questions raised, and will encourage customers of the Business to move and maintain their business to Buyer and to consent as necessary to the transfer to Buyer of the Contracts and Client Lists, as applicable.  Neither NN nor Stockholders will take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of NN from maintaining the same business relationships with Buyer after the Closing as it maintained with NN prior to the Closing.
ARTICLE 4

POST-CLOSING COVENANTS
Section 4.01                      General .  In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as the other Party reasonably may request, at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefore under Article 6 below).
Section 4.02                      Litigation Support .  In the event and for so long as any Party actively is contesting or defending against any Proceeding in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving the Business, the other Party will cooperate with the contesting or
13


defending Party and its counsel in the contest or defense, make available its personnel, and provide such testimony and access to its books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefore under Article 6 below).
Section 4.03                      Proprietary Information .  From and after the Closing, neither NN nor Stockholders shall, either directly or indirectly (including through an Affiliate), disclose to any third party or make use of (except as required by law or to pursue their rights, under this Agreement), any information or documents of a confidential nature concerning NN, the Business, the Acquired Assets or the Buyer or its business, except to the extent that such information or documents shall have become public knowledge other than through improper disclosure by NN or Stockholders or any of their Affiliates.
Section 4.04                      Solicitation and Hiring .  For a period of two years after the Closing Date, neither NN nor Stockholders shall, so long as Buyer is not in default under the Promissory Note, either directly or indirectly (including through an Affiliate), (a) solicit or attempt to induce any Employee of Buyer to terminate his employment with Buyer or any Affiliate of Buyer or (b) hire or attempt to hire any Employee of Buyer.
Section 4.05                      Non-Solicitation .  NN and the  Stockholders, personally, agree that in the event Stockholders’ employment is terminated by Buyer, or Stockholders cease to be employed by the Buyer, either via Stockholder’s voluntary termination of employment or, alternatively,  in accordance with the terms of his or her employment, then,   for the two (2) year period commencing  on the date of Stockholders’ last day of employ with Buyer, NN and Stockholders agree to the following: (i) NN and Stockholders shall not solicit any individual or entity set forth on Exhibit D; (ii)  NN and Stockholders shall not solicit any individual or entity with whom Buyer, at the time of termination of the employment of any of the Stockholders,  is conducting business or has issued a proposal for the provision of software or services; and (iii) NN and Stockholders shall not solicit in any way any of Buyer’s employees or contractors.
Section 4.06                      Apportionment .  If NN or the Stockholders, or any of their Affiliates receive any amounts in payment of obligations owed to Buyer, including, but not limited to, payments owed to Buyer in respect of the Acquired Assets, then the receiving party shall promptly deliver or pay them over to Buyer. Also, within sixty (60) days following the Closing Date, Buyer and Seller shall exchange a reconciliation of all deposits, security or customer accounts in which funds are held as of the Closing Date.  The purpose is to account for and pay out any unresolved credits or liabilities in existence as of the Closing Date. For the purpose of example only, this refers to prepaid time on projects, customer deposit accounts with unearned revenue, prepaid support, and security held pursuant to a lease. Liability for all remaining NN payroll liabilities, such as earned but unpaid vacation, shall remain with, and be paid out by Seller.
Section 4.07                      Alternate Forms of Asset Transfer .
Buyer shall undertake performance of any obligation contained in the Acquired Assets, in NN’s stead, and, if any such obligation cannot be assigned without the consent of a third party which shall not have been obtained, Buyer’s undertaking shall constitute a sub-contract of NN’s obligation or other kind of arrangement between Buyer and NN if any, pursuant to which
14


Buyer can undertake such performance (and receive the benefit thereof) without such third party’s consent; or if no such arrangement shall exist, Buyer shall nonetheless perform such obligation, unless the third party shall expressly reject Buyer’s performance, in which case, Buyer shall be released of the undertaking with respect to such obligation, and NN  shall be liable for any damages that the third party shall establish that it suffered and indemnify Buyer and hold Buyer harmless with respect thereto.
Section 4.08                       Left blank intentionally
Section 4.09                      Left blank intentionally
Section 4.10                      Certain Tax Considerations
(a)            All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with the sale of the Acquired Assets (including any real property transfer Tax and any similar Tax) shall be borne and paid by Buyer, when due, and Buyer will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges.
(b)            Buyer shall take all actions required to comply with all bulk sales laws, which may be applicable to the transactions contemplated herein, including, without limitation, the timely filing of any required Tax Returns.
(c)            For the avoidance of doubt, except as otherwise set forth in this Section 4.10, NN shall be responsible for the filing of all Tax Returns and the payment of all Taxes (whether or not shown on such returns) with respect to NN, the Acquired Assets and the Business for all periods up to and including the Closing Date and all such Taxes shall be Excluded Liabilities.
ARTICLE 5

CONDITIONS TO OBLIGATION TO CLOSE
Section 5.01            Conditions to Obligation of Buyer .  The obligation of Parent and Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a)            (i) the representations and warranties set forth in Article 2 above, shall be true and correct in all material respects, and (ii) all agreements and covenants contained in this Agreement shall have been performed or complied with by NN, in each case, at and as of the Closing Date;
(b)            Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 5.01(a) is satisfied in all respects;
(c)            Seller shall have delivered to Buyer the bill of sale and assignment and assumption agreement required under Section 1.05, together with any other instrument of transfer
15


necessary to convey to Buyer all of the Acquired Assets, which instruments shall be reasonably satisfactory in form and substance to Buyer;
(d)            there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e)             Buyer shall have delivered to Seller and Stockholders either (a) its Bylaws, or (b) its Board of Director Minutes, authorizing the transaction contemplated by this Agreement; and
(f)            Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of any and all Security Interests.
Buyer may waive any condition specified in this Section 5.01 if it executes a writing so stating at or prior to the Closing.
Section 5.02            Conditions to Obligation of Seller .  The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a)            (i) the representations and warranties set forth in Article 4 above shall be true and correct in all material respects and (ii) all agreements and covenants contained in this Agreement shall have been performed or complied with by Buyer, in each case, at and as of the Closing Date;
(b)            Buyer shall have delivered to Seller a certificate to the effect that each of the conditions specified above in Section 5.02(a) are satisfied in all respects;
(c)            Buyer shall have delivered to Seller the items required under Section 3.02, together with any other instruments necessary to acquire right, title and interest in and to the Acquired Assets and to assume liability and responsibility for the Included Liabilities, which instruments shall be reasonably satisfactory in form and substance to Seller;
(d)            there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e)            NN in coordination with Buyer shall have timely filed any and all required Tax Returns necessary to comply with all bulk sales laws which may be applicable to the transactions contemplated herein, and
Seller may waive any condition specified in this Section 5.02 if it executes a writing so stating at or prior to the Closing.
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ARTICLE 6

REMEDIES FOR BREACHES OF THIS AGREEMENT.
Section 6.01            Survival .  All of the representations, warranties and covenants contained in this Agreement, and the Exhibits and Disclosure Schedule attached hereto shall survive the Closing and remain in full force and effect until the second anniversary of the Closing Date.
Section 6.02            Indemnification.
(a)            NN and Stockholders agree to indemnify, defend and hold harmless Buyer, its Affiliates and, if applicable, their respective directors, managers, officers, shareholders, members, partners, employees, attorneys, accountants, agents and representatives and their heirs, successors and assigns from and against any and all Adverse Consequences based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation, warranty or covenant of NN or Stockholders contained in this Agreement, and (ii) any Adverse Consequences Buyer shall suffer from, or any Third Party Claim, arising out of or in connection with, the Business, the Acquired Assets prior to the Closing Date.
(b)            Parent and Buyer agree to indemnify, defend and hold harmless NN, Stockholder, and their Affiliates and, if applicable, their respective directors, managers, officers, shareholders, members, partners, employees, attorneys, accountants, agents and representatives and their heirs, successors and assigns from and against any and all Adverse Consequences based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation, warranty or covenant of Parent or Buyer contained in this Agreement, and (ii) any Adverse Consequences NN shall suffer from, or any Third Party Claim, arising out of or in connection with, the Business or the Acquired Assets after the Closing Date, which shall specifically include the remaining obligation on NN’s present leasehold interest in the event its landlord rejects the assignment of NN’ss current property lease to Buyer.
(c)            The obligations to indemnify and hold harmless pursuant to paragraphs (a) and (b) of this Section 6.02 shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 6.01, except for claims for indemnification asserted prior to the end of such period, which claims shall survive until final resolution thereof.
(d)            In no event shall indemnification obligations set forth in this Section 6.02 exceed an amount equal to the Purchase Price.
Section 6.03            Matters Involving Third Parties .
(a)            If any Party entitled to be indemnified pursuant to Section 6.02 (an “ Indemnified Party ”) receives notice of the assertion of any claim in respect of Adverse Consequences (a “ Third Party Claim ”), such Indemnified Party shall give the party who may become obligated to provide indemnification hereunder (the “ Indemnifying Party ”) written notice describing such claim or fact in reasonable detail (the “ Notice of Claim ”) promptly (and in any
17


event within ten (10) Business Days after receiving any written notice from a third party).  The failure by the Indemnified Party to timely provide a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party of any liability, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to provide timely notice hereunder.
(b)            In the event any Indemnifying Party notifies the Indemnified Party within ten (10) Business Days after the Indemnified Party has provided a Notice of Claim that the Indemnifying Party is assuming the defense thereof: (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice, subject to the consent of the Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest); (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party; and (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
(c)            In the event the Indemnifying Party does not notify the Indemnified Party within ten (10) Business Days after the Indemnified Party provides the Indemnifying Party with a Notice of Claim that the Indemnifying Party is assuming the defense thereof, then the Indemnified Party shall have the right, subject to the provisions of this Article, to undertake the defense, compromise or settlement of such claim for the account of the Indemnifying Party.  Unless and until the Indemnifying Party assumes the defense of any claim, the Indemnifying Party shall advance to the Indemnified Party any of its reasonable attorneys’ fees and other costs and expenses incurred in connection with the defense of any such action or proceeding.  Each Indemnified Party shall agree in writing prior to any such advance that, in the event it receives any such advance, such Indemnified Party shall reimburse the Indemnifying Party for such fees, costs and expenses to the extent that it shall be determined that it was not entitled to indemnification under this Article 6.
(d)            In the event that the Indemnifying Party undertakes the defense of any claim, the Indemnifying Party will keep the Indemnified Party advised as to all material developments in connection with such claim, including, but not limited to, promptly furnishing the Indemnified Party with copies of all material documents filed or served in connection therewith.
ARTICLE 7

EMPLOYEES OF THE BUSINESS
Section 7.01            No Obligations to Employees .  Except as provided in this Agreement, NN shall be solely responsible for all obligations it may have with respect to any and all Employees of NN.
Section 7.02            Commission Payments Owed By Seller .  Buyer shall not be responsible for any outstanding commission payments due to Employees for the period prior to
18


the Closing. Stockholders and NN represent and agree that the payment of such commissions is an obligation of Stockholders and NN. Stockholders further represent that they shall, on the Closing Date, pay Employees any and all outstanding commission amounts due from NN to the extent not already paid by NN.
ARTICLE 8

MISCELLANEOUS.
Section 8.01            Press Releases and Public Announcements .  Commencing on the Closing Date, Buyer may issue any press release or make any public announcement relating to the subject matter of this Agreement. Seller and Stockholders are precluded at all times from issuing any press release or making any public announcement relating to the subject matter of this Agreement without the prior written approval of the Buyer.
Section 8.02            No Third-Party Beneficiaries .  This Agreement shall not confer any rights or remedies upon any Person other than the Parties, the Indemnified Parties and their respective successors and permitted assigns.
Section 8.03            Entire Agreement .  This Agreement (including the documents referred to herein) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they related in any way to the subject matter hereof.
Section 8.04            Succession and Assignment .  This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns.  No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party; p rovided, however , that Buyer may (i) assign any or all of its rights and interests hereunder to one or more of its Affiliates and (ii) designate one or more of its Affiliates to perform its obligations hereunder (in any or all of which cases Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder).
Section 8.05            Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
Section 8.06            Headings .  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 8.07            Notices .  Any notice or other communications hereunder must be in writing and shall be deemed to have been duly given and received on the day on which it is served by personal delivery upon the party for whom it is intended, on the third Business Day after it is mailed by registered or certified mail, return receipt requested, on the Business Day after it is delivered to a national courier service addressed to the party for whom it is intended, or on the Business Day on which it is sent by telecopier; provided, that the telecopy is promptly confirmed
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by telephone confirmation thereof, to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
To Buyer:
SWK Technologies, Inc.
120 Eagle Rock Avenue, Suite 330
East Hanover, NJ  07936
Telephone: (973) 758-6100
Attention: Mark Meller

With copies to:

Lucosky Brookman, LLP
101 Wood Avenue South, 5 th Floor
Iselin, New Jersey 08830
Telephone: (732) 395-4400
Attention: Joseph M. Lucosky, Esq.


To NN and Stockholders:

Info Sys Management, Inc.
2300 SE Beta Street, Suite A
Portland, Oregon 97222
Attention:  Brian James O’Reilly

With copies to:

James Ambrose

Section 8.08            Governing Law.
(a)            This Agreement shall be governed by and construed in accordance with the domestic laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New Jersey.
(b)            Any judicial proceeding brought with respect to this Agreement by Stockholders and/or NN or the Buyer  must be brought in the United States District Court in the State of New Jersey or any court of competent jurisdiction in the State of New Jersey located in Middlesex County; and, each Party: (i) accepts unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and agrees to be bound by any final, non-appealable judgment rendered thereby in connection with this Agreement; and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding
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brought in such a court or that such court is an inconvenient forum; provided , however , that such consent to jurisdiction is solely for the purpose referred to in this Section and shall not be deemed to be a general submission to the jurisdiction of said Courts or the State of  New Jersey other than for such purpose.
(c)            THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT.
Section 8.09            Amendments and Waivers .  No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Parent, Buyer and NN.  No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
Section 8.10            Severability .  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
Section 8.11            Expenses .  Each of NN,  Stockholders, Parent and Buyer will bear their own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
Section 8.12            Construction .  Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation.  The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Personal pronouns, when used in this Agreement, whether in the masculine, feminine or neuter gender, shall include all other genders, and the singular, shall include the plural, and vice versa.
Section 8.13            Incorporation of Exhibits and Schedules .   The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.
Section 8.14            No Breach of Fiduciary Duty Required .  Nothing in this Agreement shall require, or be construed to require NN or Stockholders to take any action or omit to take any action that would be a breach of its fiduciary duties under any agreement to which it is a party or under Applicable Law or which would otherwise be contrary to applicable law.  Without limiting the generality of the foregoing, nothing herein shall require NN or Stockholders to exercise its discretion to provide any consent or other authorization on behalf of any other Person for which it acts in a fiduciary capacity if such consent or authorization is within its discretion in such fiduciary
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capacity.  The Parties shall cooperate in good faith to avoid any such breach of fiduciary duties or applicable laws while preserving the overall economic terms of this Agreement and the benefits intended to be provided to the respective Parties hereunder.
Section 8.15            Enforcement If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and expenses.
 
 
 
 
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as of the date first above written.

SECURED CLOUD SERVICES, INC.


By:  _______________________________
Mark Meller
Chief Executive Officer


SILVERSUN TECHNOLOGIES, INC.


By:  _______________________________
Mark Meller
Chief Executive Officer

 





23



STOCKHOLDER
INFO SYS MANAGEMENT, INC.


                                                                                  
Brian James O’Reilly
Chief Executive Officer














[Signature Page to NNAPA Continued]
24



EXHIBIT A

CONVERTIBLE PROMISSORY NOTE
 
 
 
 
 
25



EXHIBIT B

BILL OF SALE
 
 
 
 

 
26


EXHIBIT C

ASSIGNMENT AND ASSUMPTION AGREEMENT
 
 
 
 
 
 

27


EXHIBIT D

CLIENT AND PROSPECT LIST
 
 
 
 
 
 

28

 
SCHEDULE 2

PRODUCTS, PRODUCT LINES, AND ENHANCEMENTS
 
 
 
 
 

 
29


DISCLOSURE SCHEDULE

2.07

CONTRACTS
 
 
 
 
 

30

2.10

TANGIBLE PERSONAL PROPERTY
 
 
 
 
 
 
 
31

2.11

INTELLECTUAL PROPERTY
 
 
 
 
 
 

32

Exhibit 10.1

THIS NOTE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY, THE “ SECURITIES ”), HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE.  THE SECURITIES ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”).  THE SECURITIES ARE “ RESTRICTED ” AND MAY NOT BE OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO REGULATION D OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND THE COMPANY WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE.  FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE ACT.

CONVERTIBLE PROMISSORY NOTE

SILVERSUN TECHNOLOGIES, INC.
2% Convertible Note
Due June 1, 2023

No.  ISM 01
Issuance Date June 1, 2018
   
   

This Note is issued by SILVERSUN TECHNOLOGIES, INC. , a Delaware corporation (the “ Company ”), to Info Sys Management, Inc., , a Oregon corporation (the “ Holder ”), pursuant to exemptions from registration under the Securities Act of 1933, as amended.
ARTICLE I.
Section 1.01            Principal and Interest For value received, on June 1, 2018, the Company hereby promises to pay to the order of the Holder in lawful money of the United States of America and in immediately available funds the principal sum of One Million Dollars (US $1,000,000) , together with interest on the unpaid principal of this Note at the rate of two percent (2%) per year (computed on the basis of a 365-day year and the actual days elapsed) from the date of this Note until paid.


Section 1.02            Optional Conversion The Holder may, at its sole and exclusive option, elect to convert, at any time and from time to time, until payment in full of this Note, all of the principal amount of the Note, plus accrued interest, into shares (the “ Conversion Shares ”) of the Company’s Common Stock, (“ Common Stock ”), at a price equal to the average closing price of it’s Common Stock for the five (5) trading days immediately preceding the Issuance Date (the “Fixed Conversion Price”).
Section 1.03            Principal and Interest Payments .   The principal and interest payments shall be made in sixty (60) equal monthly installments in accordance with the amortization schedule attached hereto.
ARTICLE II.
Events of Default .
Each of the following events, individually or in any combination thereof, shall constitute an “Event of Default”:
a.
any payment of principal and/or interest under this Note shall not be paid within five (5) Business Days of the date that such payment was due;
b.
a court shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company for any substantial part of the property of the Company or ordering the winding up or liquidation of the affairs of the Company, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; and
c.
the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of the property of the Company, or the Company shall make any general assignment for the benefit of creditors;
d.
an Event Default shall have occurred by the maker of that certain promissory note from the Company to Nellnube dated on or about the date hereof in the original principal amount of Four Hundred Thousand Dollars ($400,000.00), with “Event of Default” having the meaning ascribed to it in such promissory note;
e.
failure by the Company’s transfer agent to issue Common Stock to the Holder within five (5) days of the Company’s receipt of the attached Notice of Conversion from Holder; and/or
f.
failure by the Company for ten (10) days after notice to it to comply with any of its other agreements in the Note.
If an Event of Default shall occur, the unpaid principal and accrued interest hereunder shall become immediately due and payable without any declaration or other act on the part of the Holder.


Additionally, immediately upon the occurrence of any Event of Default the Holder, without any notice to the Borrower, which notice is hereby expressly waived by the Borrower, may proceed to protect, enforce, exercise and pursue any and all rights and remedies available to the Holder under this Note and any and all rights and remedies available to the Holder at law and/or in equity.

ARTICLE III.
Section 3.01            Rights and Terms of Conversion .  Commencing sixty (60) days after the date hereof, this Note, in whole  or in part, may be converted at any time prior to the maturity date of this Note, into shares of Common Stock at a price equal to the Fixed Conversion Price.
ARTICLE IV.
Section 4.01            Adjustment In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on the outstanding Common Stock, the Conversion Price in effect immediately prior to such subdivision or the issuance of such dividend shall be proportionately decreased, and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the Conversion Price in effect immediately prior to such combination shall be proportionately increased, effective at the close of business on the date of such subdivision, dividend or combination as the case may be.
ARTICLE V.
Section 5.01            Notice Notices regarding this Note shall be sent to the parties at the following addresses, unless a party notifies the other parties, in writing, of a change of address:
To Company:
SilverSun Technologies, Inc.
120 Eagle Rock Avenue
East Hanover,NJ  07936
Telephone: (973) 758-6108
Attention: Mark Meller

With copies to:

Lucosky Brookman, LLP
101 Wood Avenue South, 5th Floor
Iselin, New Jersey 08830
Telephone: (732) 395-4400
Attention: Joseph M. Lucosky, Esq.







   To ISM and Stockholder:

Info Sys Management, Inc.
2300 SE Beta Street, Suite A
Portland, Oregon 97222
Attention:  Brian James O’Reilly

With copies to:

James Ambrose


Section 5.02           Governing Law This Note shall be deemed to be made under and shall be construed in accordance with the laws of the State of New Jersey without giving effect to the principals of conflict of laws thereof.  Each of the parties consents to the jurisdiction of the U.S.  District Court sitting in the District of the State of New Jersey or the state courts of the State of New Jersey sitting in Hudson County, New Jersey in connection with any dispute arising under this Note and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum   non   conveniens to the bringing of any such proceeding in such jurisdictions.
Section 5.03            Severability The invalidity of any of the provisions of this Note shall not invalidate or otherwise affect any of the other provisions of this Note, which shall remain in full force and effect.
Section 5.04             Entire Agreement and Amendments; Assignment This Note represents the entire agreement between the parties hereto with respect to the subject matter hereof and there are no representations, warranties or commitments, except as set forth herein.  This Note may be amended only by an instrument in writing executed by the parties hereto.  This Note is freely assignable by the Holder to Chris Oates or his affiliates, heirs and successors, only.
Section 5.05          Counterparts.   This Note may be executed in multiple counterparts, each of which shall be an original, but all of which shall be deemed to constitute an instrument.

Section 5.06            Default Interest .  From and after an Event of Default under this Note, which default has not been cured within the applicable time period (if any) interest shall thereafter accrue on the then-outstanding principal balance of this Note at the rate of eighteen percent (18.0%) per annum or the highest rate allowed by law, whichever is lower.

Section 5.07            Expenses .  The Borrower agrees to pay to the Holder all out-of-pocket expenses (including reasonable expenses for legal services of every kind) of, or incident to, the enforcement of any of the provisions of this Note.
Section 5.08            Miscellaneous This Note shall be deemed to be a contract under the laws of the State of New Jersey, and for all purposes shall be construed in accordance with the laws of


said state without regard to conflict of law principles.  The parties hereto hereby waive presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of or any default under this Promissory Note, except as specifically provided herein, and assent to extensions of the time of payment, or forbearance or other indulgence without notice.  The Section headings herein are for convenience only and shall not affect the construction hereof.  Any provision of this Note which is illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating or impairing the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.  This Note shall bind the Company and its successors and permitted assigns.  The rights under and benefits of this Note shall inure to the Note Holder and its successors and assigns.

IN WITNESS WHEREOF , with the intent to be legally bound hereby, the Company as executed this Note as of the date first written above.
Date:  June ___, 2018


 
SilverSun Technologies, Inc.
 
   
 
By: _____________________________
 
Name:  Mark Meller
 
Title:   President and Chief Executive  Officer




Exhibit 10.2

THIS NOTE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY, THE “ SECURITIES ”), HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE.  THE SECURITIES ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”).  THE SECURITIES ARE “ RESTRICTED ” AND MAY NOT BE OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO REGULATION D OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND THE COMPANY WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE.  FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE ACT.

CONVERTIBLE PROMISSORY NOTE

SILVERSUN TECHNOLOGIES, INC.
2% Convertible Note
Due June 1, 2023

No.  ISM 01
Issuance Date June 1, 2018
   
   

This Note is issued by SILVERSUN TECHNOLOGIES, INC. , a Delaware corporation (the “ Company ”), to Info Sys Management, Inc., an Oregon corporation (the “ Holder ”), pursuant to exemptions from registration under the Securities Act of 1933, as amended.
ARTICLE I.
Section 1.01            Principal and Interest For value received, on June 1, 2018, the Company hereby promises to pay to the order of the Holder in lawful money of the United States of America and in immediately available funds the principal sum of Four Hundred Thousand Dollars (US $400,000) , together with interest on the unpaid principal of this Note at the rate of two percent (2%) per year (computed on the basis of a 365-day year and the actual days elapsed) from the date of this Note until paid.


Section 1.02            Optional Conversion The Holder may, at its sole and exclusive option, elect to convert, at any time and from time to time, until payment in full of this Note, all of the principal amount of the Note, plus accrued interest, into shares (the “ Conversion Shares ”) of the Company’s Common Stock, (“ Common Stock ”), at a price equal to the average closing price of it’s Common Stock for the five (5) trading days immediately preceding the Issuance Date (the “Fixed Conversion Price”).
Section 1.03            Principal and Interest Payments .   The principal and interest payments shall be made in sixty (60) equal monthly installments in accordance with the amortization schedule attached hereto.
ARTICLE II.
Events of Default .
Each of the following events, individually or in any combination thereof, shall constitute an “Event of Default”:
a.
any payment of principal and/or interest under this Note shall not be paid within five (5) Business Days of the date that such payment was due;
b.
a court shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company for any substantial part of the property of the Company or ordering the winding up or liquidation of the affairs of the Company, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; and
c.
the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of the property of the Company, or the Company shall make any general assignment for the benefit of creditors;
d.
an Event Default shall have occurred by the maker of that certain promissory note from the Company to Info Sys Management, Inc. dated on or about the date hereof in the original principal amount of One Million Dollars ($1,000,000.00), with “Event of Default” having the meaning ascribed to it in such promissory note;
e.
failure by the Company’s transfer agent to issue Common Stock to the Holder within five (5) days of the Company’s receipt of the attached Notice of Conversion from Holder; and/or
f.
failure by the Company for ten (10) days after notice to it to comply with any of its other agreements in the Note.
If an Event of Default shall occur, the unpaid principal and accrued interest hereunder shall become immediately due and payable without any declaration or other act on the part of the Holder.


Additionally, immediately upon the occurrence of any Event of Default the Holder, without any notice to the Borrower, which notice is hereby expressly waived by the Borrower, may proceed to protect, enforce, exercise and pursue any and all rights and remedies available to the Holder under this Note and any and all rights and remedies available to the Holder at law and/or in equity.

ARTICLE III.
Section 3.01            Rights and Terms of Conversion .   Commencing sixty (60) days after the date hereof, this Note, in whole  or in part, may be converted at any time prior to the maturity date of this Note, into shares of Common Stock at a price equal to the Fixed Conversion Price.
ARTICLE IV.
Section 4.01            Adjustment In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on the outstanding Common Stock, the Conversion Price in effect immediately prior to such subdivision or the issuance of such dividend shall be proportionately decreased, and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the Conversion Price in effect immediately prior to such combination shall be proportionately increased, effective at the close of business on the date of such subdivision, dividend or combination as the case may be.
ARTICLE V.
Section 5.01            Notice Notices regarding this Note shall be sent to the parties at the following addresses, unless a party notifies the other parties, in writing, of a change of address:
To Company:
SilverSun Technologies, Inc.
120 Eagle Rock Avenue
East Hanover,NJ  07936
Telephone: (973) 758-6108
Attention: Mark Meller

With copies to:

Lucosky Brookman, LLP
101 Wood Avenue South, 5th Floor
Iselin, New Jersey 08830
Telephone: (732) 395-4400
Attention: Joseph M. Lucosky, Esq.

 



   To NellNube and Stockholder:

NellNube, Inc.
2300 SE Beta Street, Suite A
Portland, Oregon 97222
Attention:  Brian James O’Reilly

With copies to:


James Ambrose


Section 5.02            Governing Law This Note shall be deemed to be made under and shall be construed in accordance with the laws of the State of New Jersey without giving effect to the principals of conflict of laws thereof.  Each of the parties consents to the jurisdiction of the U.S.  District Court sitting in the District of the State of New Jersey or the state courts of the State of New Jersey sitting in Hudson County, New Jersey in connection with any dispute arising under this Note and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum   non   conveniens to the bringing of any such proceeding in such jurisdictions.
Section 5.03            Severability The invalidity of any of the provisions of this Note shall not invalidate or otherwise affect any of the other provisions of this Note, which shall remain in full force and effect.
Section 5.04            Entire Agreement and Amendments; Assignment This Note represents the entire agreement between the parties hereto with respect to the subject matter hereof and there are no representations, warranties or commitments, except as set forth herein.  This Note may be amended only by an instrument in writing executed by the parties hereto.  This Note is freely assignable by the Holder to Chris Oates or his affiliates, heirs and successors, only.
Section 5.05          Counterparts.   This Note may be executed in multiple counterparts, each of which shall be an original, but all of which shall be deemed to constitute an instrument.
Section 5.06            Default Interest .  From and after an Event of Default under this Note, which default has not been cured within the applicable time period (if any) interest shall thereafter accrue on the then-outstanding principal balance of this Note at the rate of eighteen percent (18.0%) per annum or the highest rate allowed by law, whichever is lower.

Section 5.07            Expenses .  The Borrower agrees to pay to the Holder all out-of-pocket expenses (including reasonable expenses for legal services of every kind) of, or incident to, the enforcement of any of the provisions of this Note.
Section 5.08            Miscellaneous This Note shall be deemed to be a contract under the laws of the State of New Jersey, and for all purposes shall be construed in accordance with the laws of


said state without regard to conflict of law principles.  The parties hereto hereby waive presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of or any default under this Promissory Note, except as specifically provided herein, and assent to extensions of the time of payment, or forbearance or other indulgence without notice.  The Section headings herein are for convenience only and shall not affect the construction hereof.  Any provision of this Note which is illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating or impairing the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.  This Note shall bind the Company and its successors and permitted assigns.  The rights under and benefits of this Note shall inure to the Note Holder and its successors and assigns.
 

 
IN WITNESS WHEREOF , with the intent to be legally bound hereby, the Company as executed this Note as of the date first written above.
Date:  June ___, 2018
 
SilverSun Technologies, Inc.
 
   
 
By: _____________________________
 
Name: Mark Meller
 
Title:   President and Chief Executive  Officer





 
Exhibit 10.3
 
EMPLOYMENT AGREEMENT
This employment agreement, (the “Agreement”) is made on May __, 2018 by and between SWK TECHNOLOGIES, INC., a Delaware corporation (hereinafter referred to as “SWK” or the “Company”), having its primary offices at 120 Eagle Rock Avenue, East Hanover, NJ 07936 and Brian James O’Reilly, currently residing at                                                                           (hereinafter referred to as the "Executive").
W   I   T   N   E   S S   E   T   H :
WHEREAS , Executive possesses certain knowledge and skills relating to the Company’s business that the Company wishes to obtain for the development and success of the Company’s business; and
WHEREAS, the Company desires to engage the services of the Executive, and the Executive desires to render such services.
NOW, THEREFORE, in consideration of the premises, the parties agree as follows:
1.            Employment.   The Company hereby employs the Executive as an Chief Technology Officer   and the Executive hereby accepts such employment, subject to the terms and conditions hereinafter set forth.
2.            Term.   The term of the Executive's employment hereunder shall commence on June 1, 2018 (the “Commencement Date”) and shall continue through May 31, 2021 (the “Term”) unless such Term is earlier terminated in accordance with the provisions of this Agreement.
3.            Duties.   The Executive agrees that he will serve the Company on a full-time basis faithfully and to the best of his ability, subject to the general supervision of the Chief Executive Officer (“CEO”) or his designee(s) and/or the Board of Directors of the Company.  The Executive’s duties and job description are attached hereto as Exhibit I.  The Executive agrees that he will not, during the term of this Agreement, engage in any other business activity which interferes with the performance of his obligations under this Agreement and Executive will devote all of his working time to the business and affairs of the Company; provided, however, that the foregoing shall not be construed as precluding the Executive from: (i) serving on the Board of Directors of any corporation or entity not directly competitive or competitive in any material respect with the Company; and (ii) investing or trading in securities or other forms of investments, in each case, so long as such activities do not materially interfere with the performance of the Executive’s duties hereunder and such investments do not represent the ownership of five percent (5%) or more of the capital stock of publicly traded entities.  Performance of Executive’s duties hereunder shall in no event require that Executive relocate from his current residence.
4.            Compensation.
(a)            In consideration of the services to be rendered by the Executive hereunder, the Company agrees to pay the Executive, and the Executive agrees to accept, a Base Salary in the amount of Two Hundred Fifty Thousand Dollars ($250,000) per annum, subject to all required
1


federal, state and local payroll deductions.  Currently, the Company pays its executives on a bi-weekly basis.
(b)            At the discretion of the Company’s Board of Directors, the Executive will also be eligible for periodic cash and/or stock bonuses.
(c)            The Executive shall be entitled to twenty five (25) Paid Time Off (“PTO”) days during each calendar year.  The Executive shall be permitted to carry forward all earned and unused PTO days from the prior calendar year.  However, all PTO carried over must be used by June 30 th , with a minimum of 50% of all carry-over being used in the first quarter.  Any remaining days will be forfeited. The Company shall not be obligated to pay the Executive for any unused or lost PTO days, although the Company, in its sole discretion, may choose to pay the Executive for unused PTO days in lieu of providing the Executive with time off
(d)            The Executive shall be entitled to Company holidays in accordance with the Company’s Employee Handbook, as amended and as published periodically by the Company.
(e)            The Executive shall receive group medical and dental benefits for himself and his spouse of the same type as other Senior Managers of the Company. The Company shall pay the cost of such health and dental insurance in full.  The Executive shall also receive qualified retirement benefits, group disability insurance and group life insurance, as per the Employee Handbook, and in accordance with the Company’s standard practices.
(f)            To the extent that the Executive becomes mentally or physically disabled, as determined in accordance with Paragraph 10 of this Agreement, Executive shall continue to receive his total compensation and other benefits hereunder until the termination of this Agreement pursuant to Paragraph 10 hereof; provided, however, that the Executive’s Base Salary shall be reduced by any disability benefits Executive receives from policies maintained and paid for by the Company.  Moreover, Executive is required to exhaust all accrued but unused PTO in connection with any such absence due to disability.
5.            Business Expenses.
Executive is authorized to incur, and the Company shall pay and reimburse him, for all reasonable and necessary business expenses incurred in the performance of his duties hereunder, in accordance with guidelines adopted by the Board of Directors.  The Company will pay and reimburse Executive for all such reasonable expenses upon the presentation by Executive, from time to time, of an itemized account of such reasonable expenditures and proper documentation thereof as evidence that such expenses have been incurred. The determination of what is fair and reasonable shall be made by the CEO or COO.
6.            Termination by the Company for Cause.
The Company has the right to terminate Executive’s employment with cause. Termination by the Company of the Executive’s employment for cause (hereinafter referred to as “Termination for Cause), shall mean termination upon:
(i)            the willful and continued failure by the Executive to substantially perform
2


the Executive’s material duties with the Company (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness) after a written demand for substantial performance is delivered to the Executive by the Board or the CEO, which demand specifically identifies the material duties that the Board believes that the Executive has not substantially performed; or
(ii)            the willful engaging by the Executive in conduct that is demonstrably and materially injurious to the Company, monetarily; or
(iii)             the conviction of the Executive of a felony that results in the Executive being unable to substantially carry out his duties as set forth in this Agreement for a period of at least 60 days; or
(iv)            the commission of any act by the Executive against the Company that constitutes embezzlement, larceny, and/or grand larceny.
7.            Termination by the Company Without Cause.    If the Company terminates Executive’s employment other than for Cause pursuant to Paragraph 6, the Company shall pay or provide the Executive, within thirty (30) days of the date of termination, with: (i) any unpaid salary earned under this Agreement prior to the date of termination; (ii) any accrued but unused PTO days prior to the date of termination; (iii) any unpaid compensation due under Paragraph 4 (b) herein; (iv) any unpaid expense reimbursement owed to him for periods through the date of termination; and (v) the Executive’s Base Salary for the remainder of the Term.
8.            Termination by the Executive.      The Executive may terminate his employment hereunder for “Good Reason,” within ninety (90) days of the occurrence of any of the following events: (i) a significant and material breach of this Agreement by the Company; or (ii) any failure to pay, within a reasonable amount of time, any part of the Executive’s compensation  or to provide the benefits contemplated herein.   The Executive shall give the Company written notice of any proposed termination for Good Reason and the Company shall have thirty (30) days from receipt of such written notice to cure any ground of termination for Good Reason, as set forth in this Paragraph.  In the event of Termination by Executive for Good Reason, Company shall be obligated to pay to Executive that compensation due as if Company had terminated Executive Without Cause pursuant to Paragraph 7 of this Agreement.
 
9.            Termination Due to Death.      In the event of the Executive’s death during the Term of this Agreement, the Executive’s employment hereunder shall immediately and automatically terminate. The Company shall have no further obligation or duty to the Executive or her estate or beneficiaries other than monies owed to Executive under Paragraph 7(i), (ii), (iii) (iv) and (v).

10.          Termination Due to Disability.      Nothwithstanding the preceding sections, the Company may terminate the Executive’s employment hereunder, upon written notice to the Executive, in the event that the Executive becomes disabled during the Term.  The term “disabled” is defined as any condition of either a physical or psychological nature that, even with reasonable accommodation, renders the Executive unable to perform the essential functions of the services contemplated hereunder for a period of one hundred eighty (180) days during any twelve (12) month period during the Term.  Executive represents that any period of disability beyond one hundred eighty
3


(180) days would place an undue burden and hardship on the Company.   Any such termination shall become effective upon mailing or hand delivery of such notice to the Executive. The Company shall have no further obligation or duty to the Executive following termination under this Paragraph, other than to pay Executive all earned compensation and benefits through the date of termination, and other than as required by applicable law.  In addition, Executive will be entitled to the lesser of (i) an additional six (6) month’s Base Salary or (ii) Executive’s Salary through the end of the Term, following any such termination, to be paid pursuant to the Company’s normal payroll cycle.  For purposes of determining the existence or nonexistence of a disability, the Executive and Company shall mutually agree to a physician.  If the Executive and Company are unable to agree on a physician, the physicians selected by each shall agree on a third physician, who shall make the disability determination.

11.        Non-Disclosure of Confidential Information and Non-Competition  This provision shall be governed by the terms and conditions of that certain, Non-Compete/Non-Disclosure/Non-Solicitation Agreement, dated as of the date hereof and attached as Exhibit A hereto.
12.        Successors; Binding Agreement.
Neither this Agreement nor any right or interest hereunder shall be assignable by the Executive, nor shall it be subject to attachment, execution, pledge or hypothecation, but this Agreement if Executive shall die shall inure to the benefit of and be enforceable by the Executive’s personal or legal representative, executors, administrators, successors, heirs, distributees, devisees and legatees.  If the Executive dies during the term of this Agreement before a notice of termination is sent by either party, no amounts shall be paid to Executive’s devisee, legatee or other designee or, if there is no such designee, to Executive’s estate other than the amounts owed under Section 4(h) and under Section 7(i), (ii), (iii) and (iv).  If Executive dies after a notice of termination has been submitted, by either party, the Agreement shall terminate according to the notice of termination and the relevant sections of this Agreement pertaining to such a termination rather than as a termination under this Section.
13.          Miscellaneous.  No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive, and such officer as may be specifically designated by the Board.  No waiver by either party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.  No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party that is not set forth in this Agreement.  Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law.
14.          Severance and Validity.   The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
15.        Counterparts.   This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
4


16.          Entire Agreement.   This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, supersedes any prior agreement between the parties, and may not be changed or terminated orally.  No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party to be bound; provided, however, that the Executive’s compensation and benefits may be changed at any time by the Company without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect.
17.          Negotiated Agreement.   This Agreement has been negotiated and shall not be construed against the party responsible for drafting all or parts of this Agreement.
18.          Notices.   For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or received by United States registered or certified mail, return receipt requested, postage prepaid, or by nationally recognized overnight delivery service providing for a signed return receipt, addressed to the Executive at the Executive’s home address set forth in the Company’s records and to the Company at the address set forth on the first page of this Agreement, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.
19.          Governing Law and Resolution of Disputes.   All matters concerning the validity and interpretation of and performance under this Agreement shall be governed by the laws of the State of New Jersey.  Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Phoenix, Arizona in accordance with the rules of the American Arbitration Association (“AAA”) then in effect.  Arbitration will take place before a single experienced employment arbitrator licensed to practice law in Arizona and selected in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association.  The arbitrator may not modify or change this Agreement in any way.  Any judgment rendered by the arbitrator as above provided shall be final and binding on the parties hereto for all purposes and may be entered in any court having jurisdiction.  In any arbitration pursuant to this Paragraph 19, each party shall be responsible for the fees and expenses of its own attorney and witnesses, and the fees and expenses of the arbitrator shall be divided equally between the Company and the Executive.  Executive agrees that the cost provisions of this Paragraph are fair and not unconscionable.  Nothing in this Paragraph 19 shall be construed to limit the Company’s ability to seek injunctive and other relief in connection with an actual or threatened violation of Paragraph 11 hereof.

5

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of June ___, 2018.


SWK TECHNOLOGIES, INC.

______________________________
By:    Mark Meller, CEO                                          June __, 2018
 
EXECUTIVE:
______________________________            Dated ______________________
Brian James O’Reilly
6

 
 
EXHIBIT A

NON-COMPETE/NON-DISCLOSURE/NON-SOLICITATION AGREEMENT

THIS NON-DISCLOSURE, NON-COMPETE, AND NON-SOLICITATION AGREEMENT (the “Agreement”) is made and entered into by and between SWK Technologies, Inc., a Delaware corporation (the “Company”), and ____________(“Employee”) and is effective as of ______________ 2018 (“Effective Date”).

WITNESSETH

WHEREAS, the Company desires to employ Employee on an at-will basis pursuant to the terms of that certain Employment Agreement signed by the Company and Employee on the date hereof; and

WHEREAS, Company requires each of its employees to agree to certain restrictions as set forth in this Agreement.

NOW THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, the parties agree as follows:

1.          Confidential Information and Company's Intellectual Property/Non-Disclosure Agreements.
 
1.1             The Employee agrees not to use, disclose or make accessible to any other person, a partnership, corporation of any other entity any Confidential Information (as defined below) pertaining to the business of the Company except: (i) while employed by the Company, in the business of and for the benefit of the Company, or (ii) when required to do so by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the Company, or by any administrative body or legislature body (including a committee thereof) with jurisdiction to order the Company to divulge, disclose or make accessible such information. For purposes of the Agreement, “Confidential Information” shall mean nonpublic information concerning the Company’s financial data, statistical data, strategic business plans, product development (or other proprietary product data), customer and supplier lists, customer and supplier information, information relating to governmental relations, discoveries, practices, techniques, technologies, schematics, discoveries, processes, methods, trade secrets, marketing plans and other nonpublic, proprietary and confidential information of the Company, that, in any case, is not otherwise generally available to the public and has not been disclosed by the Company to others not subject to confidentiality agreements. In the event the Employee’s employment is terminated hereunder for any reason, he immediately shall return to the Company all Confidential Information in her possession.
 
The Employee agrees that any and all inventions, improvements, processes, procedures and techniques which Employee may make, conceive, discover or develop, either solely or jointly with any other person or persons, at any time during the term of this Agreement, whether during working hours or at any other time and whether at the request or upon suggestion of the Company or otherwise, which relate to or are useful in connection with any business now or hereafter carried on or contemplated by the Company, including developments or expansions of its present fields of operations, shall be the sole and exclusive property of the Company.
 
 
 

Employee shall make full disclosure to the Company of all such writings, inventions, improvements, processes, procedures and techniques, and shall do everything necessary or desirable to vest the absolute title thereto in the Company. Employee shall write and prepare all specifications and procedures and techniques regarding such inventions, improvements, processes, procedures and techniques and otherwise aid and assist the Company so that the Company can prepare and present applications for copyright or patent therefore and can secure such copyright or patent wherever possible, as well as reissues, renewals and extensions thereof, and can obtain the record title to such copyright or patents so that Company shall be the sole and absolute owner thereof in all countries in which it may desire to have copyright or patent protection. Employee shall not be entitled to any additional of special compensation or reimbursement regarding any and all such writings inventions, improvements, processes, procedures and techniques.
 
1.2          The Employee and the Company agree that this covenant regarding confidential information is a reasonable covenant under the circumstances and further agree that if in the opinion of any court of competent jurisdiction, such covenant is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of this covenant as to the court shall appear not reasonable and to enforce the remainder of the covenant as so amended. The Employee agrees that any breach of the covenant contained in this Section 1 would irreparably injure the Company. Accordingly, the Employee agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against the Employee for any court having jurisdiction over the matter, restraining any further violation of this Section 1.
 
1.3          The provisions of this Section 1 shall extend for the duration of this Agreement and at all times thereafter.
 
2.            Non-Competition: Non-Solicitation.
 
2.1         The Employee agrees that during the Non-Competition Period (as defined in Section 2.4 below), without the prior written consent of the Company: (i) he shall not, directly or indirectly, either as principal, manager, agent, consultant, officer, director, greater than five percent (5%) holder of any class or series of equity securities, partner, investor, lender or employee or in any other capacity, carry on, be engaged in or have any financial interest in or otherwise be connected with, any entity which is now or at the time, has material operations which are engaged in any business activity directly competitive with the business of the Company that compete directly with the Company including, for these purposes, any business in which, at the termination of employment, there was a bona fide intention on the part of the Company to engage in the future; and (ii) shall not, on behalf of any competing entity, directly have any dealings or contact with any customers of the Company.
 
2.2         During the Non-Competition Period, Employee agrees that, without the prior written consent of the Company (and other than on behalf of the Company), Employee shall not, on his own behalf or on behalf of any person or entity, directly or indirectly hire or solicit the employment of any employee who has been employed by the Company at any time during the six months immediately preceding such date of hiring or solicitation.
 
2.3          The Employee and the Company agree that the covenants of non-competition and non-solicitation are reasonable covenants under the circumstances, and further agree that if, in the opinion of any court of competent jurisdiction such covenants are not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants as to the
 

court shall appear not reasonable and to enforce the remainder of these covenants as so amended. The Employee agrees that any breach of the covenants contained in this Section 2 would irreparably injure the Company. Accordingly, the Employee agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against the Employee from any court having jurisdiction over the matter, restraining any other violation of this Section 2.
 
2.4            The provisions of this Section 2 shall extend for the term of employment and survive the termination of the Agreement of two years from the date of such termination (herein referred to as the “Non-Competition Period”).
 
3.           Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered personally or sent by facsimile transmission, overnight courier, or certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally or sent by facsimile transmission (provided that a confirmation copy is sent by overnight courier), one (1) day after deposit with an overnight courier, or if mailed, five (5) days after the date of deposit in the United States mails, as follows:
 
To the Company:             SWK Technologies, Inc.,
120 Eagle Rock
East Hanover, NJ 07936
Telephone:   (xxx)
Facsimile:      (xxx)
Attention:     Mark Meller

To Employee:                                                                             
                                                         
                                                         
                                                         

 

4.            Entire Agreement. The Agreement contains the entire Agreement between the parties hereto with respect to the matters contemplated herein. This Agreement supersedes all prior agreements and understandings (including verbal agreements) between Employee and the Company and/or its affiliates regarding the terms and conditions of Employee’s employment with the Company and/or its affiliates.
 
5.           Binding Effect. Except as otherwise provided herein, the Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns and upon Employee. “Successors and Assigns” shall mean, in the case of the Company, a successor pursuant to a merger, consolidation, or sale, or other transfer of all or substantially all of the assets or Common Stock of the Company.
 
6.            No Assignment. Except as contemplated by Section 5 above, the Agreement shall not be assignable or otherwise transferable by either party.
 
7.            Amendment of Modification: Wavier. No provisions of the Agreement may be amended or waived unless such amendment or waiver is authorized by the Company’s Chief Executive Officer and Board and is agreed to in writing signed by Employee and by a officer of the Company thereunto duly authorized. Except as otherwise specifically provided in the Agreement, no waiver by either party hereto of any breach by the other party hereto of any condition or provision of the Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar provision or condition at the same or at any prior or subsequent time.
 
8.            Fees and Expenses. If either party institutes any action or proceedings to enforce any rights the party has under this Agreement, or for damages by reason of any alleged breach of any provision of the Agreement, or for a declaration of each party's rights or obligations hereunder or to set aside any provisions hereof or for any other judicial remedy, the prevailing party shall be entitled to reimbursement from the other party for its costs and expenses incurred thereby, including but not limited to, reasonable attorney's fees and disbursements.
 
9.           Governing Law and Venue. The validity, interpretation, construction, performance and enforcement of the Agreement shall be governed by the internal laws of the State of New Jersey, without regard to its conflicts of law rules.
 
10.          Titles. Titles to the Section in the Agreement are intended solely for convenience and no provision of the Agreement is to be construed by reference to the title of and Section.
 
11.          Counterparts. This Agreement may be executed in one or more counterparts, which together shall constitute one Agreement. It shall not be necessary for each party to sign each counterpart so long as each party has signed at least one counterpart.
 
12.          Severability. Any term or provision of the Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of be ineffective to the extent of such invalidity or unenforceability without rendering invalid or
 

unenforceable the remaining terms and provisions of the Agreement or affecting the validity or enforceability of any of the terms and provisions of the Agreement in any other jurisdiction.
 
 
 


 

 
 
 
IN WITNESS WHEREOF the parties hereto have executed Agreement as of the day and year first set forth above.

SWK TECHNOLOGIES, INC.

By: _______________________________

Mark Meller
Chief Executive Officer


EMPLOYEE

By:________________________________