Exhibit 4.1  

STOCK PURCHASE AGREEMENT

This Stock Purchase Agreement (this “ Agreement ”) is entered into as of August 25, 2018, by and among LK Technology Ltd., a limited liability company organized under the laws of the British Virgin Islands (“ Buyer ”), Superengine Holdings Limited, a limited liability company organized under the laws of the British Virgin Islands (the “ Company ”), Harmonious Soar Limited, a limited liability company organized under the laws of British Virgin Islands (“ Harmonious ”), Genoa Peak Limited, a limited liability company organized under the laws of British Virgin Islands (“ Genoa ”), Abyss Delight Limited, a limited liability company organized under the laws of British Virgin Islands (“ Abyss ”), Globalearth Holdings Limited, a limited liability company organized under the laws of British Virgin Islands (“ Globalearth ” and together with Harmonious, Genoa and Abyss, the “ Sellers ”), and solely for the purpose of Sections 2.1, 3.2(b) and 4.2(b) herein, Luokung Technology Corp., a company organized under the laws of the British Virgin Islands (“ Parent ”). Buyer, the Company, Harmonious, Genoa, Abyss, Globalearth and Parent are sometimes referred to herein individually as a “ Party ” and collectively as the “ Parties .”

RECITALS

A. Harmonious is the record and beneficial owner of 4,846 shares of the Company’s ordinary shares, comprising approximately 48.46% of the issued and outstanding capital stock of the Company (the “ Harmonious Shares ”). Genoa is the record and beneficial owner 1,900 shares of the Company’s ordinary shares, comprising approximately 19.0% of the issued and outstanding capital stock of the Company (the “ Genoa Shares ”). Abyss is the record and beneficial owner of 2,254 shares of the Company’s ordinary shares, comprising approximately 22.54% of the issued and outstanding capital stock of the Company (the “ Abyss Shares ”). Globalearth is the record and beneficial owner of 1,000 shares of the Company’s ordinary shares, comprising approximately 10.0% of the issued and outstanding capital stock of the Company (the “ Globalearth Shares ”) The Harmonious Shares, Genoa Shares, Abyss Shares and Globalearth Share are referenced herein collectively as the “ Company Shares ”.

B. Sellers desire to sell to Buyer, and Buyer desires to purchase from Sellers, the Company Shares on and subject to the terms and conditions set forth herein.

NOW THEREFORE , in consideration of the premises and the mutual agreements and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows:

Article I
INTERPRETATION

In this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following words and terms will have the indicated meanings and grammatical variations of such words and terms will have corresponding meanings:

“ Accounts Payable ” means all trade and other accounts payable, notes payable (including related party notes or payables) and other debts (excluding, for greater certainty, any current portion of long-term debt) due or accruing by the Company and outstanding as of the Effective Time;

“ Accounts Receivable ” means all trade and other accounts receivable, notes receivable and other debts due or accruing due to the Company outstanding as of the Effective Time, including but not limited to retainage under contracts;

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

“ Benefit Plans ” means any retirement, pension, profit sharing, deferred compensation, stock bonus, savings, bonus, incentive, cafeteria, medical, dental, vision, hospitalization, life insurance, accidental death and dismemberment, medical expense reimbursement, dependent care assistance, tuition reimbursement, disability, sick pay, holiday, vacation, severance, change of control, stock purchase, stock option, restricted stock, phantom stock, stock appreciation rights, fringe benefit or other employee benefit plan, fund, policy, program, contract, arrangement or payroll practice of any kind or any employment, consulting or personal services contract, whether written or oral, qualified or nonqualified, funded or unfunded, or domestic or foreign, (a) sponsored, maintained or contributed to by the Company or to which the Company is party; (b) covering or benefiting any current or former officer, employee, agent, director or independent contractor of the Company (or any dependent or beneficiary of any such individual) or (c) with respect to which the Company has or could have any liability that arises prior to Closing or that relates to events or circumstances that occurred prior to Closing;

“ Business ” means the collection and provision of big spatial-temporal data, network graphic image technology and related services conducted by the Company immediately prior to the date hereof;

“ Business Day ” means any day except Saturday, Sunday or any other day on which commercial banks located in New York, New York are authorized or required by law to be closed for business;

“ Closing ” means the completion of the purchase and sale of the Company Shares and the other matters contemplated by this Agreement;

“ Closing Date ” means the date hereof;

“ Condition of the Company ” means the condition of the assets, liabilities, operations, activities, earnings, prospects, affairs and financial position of the Company;

“ Current Liabilities ” means accounts payable, accrued expenses including any accrued taxes, customer deposits, accrued wages and benefits payable, and overbillings, if any, but excluding Indebtedness, if any;

“ Effective Time ” means 12:01 a.m. (Eastern Time) on the day following the Closing Date;

“ Encumbrances ” means all capital lease and operating lease obligations, mortgages, charges, pledges, security interests, liens, encumbrances, actions, claims, demands and equities of any nature whatsoever or howsoever arising and any rights or privileges capable of becoming any of the foregoing;

“ Environmental Laws ” means any federal, state or local law, statute, rule, order, directive, judgment, Permit or regulation or the common law relating to the environment, occupational health and safety, or exposure of Persons or property to Hazardous Substances, including any statute, regulation, administrative decision or order pertaining to: (a) the presence of or the treatment, storage, disposal, generation, transportation, handling, distribution, manufacture, processing, use, import, export, labeling, recycling, registration, investigation or remediation of Hazardous Substances or documentation related to the foregoing; (b) air, water and noise pollution; (c) groundwater and soil contamination; (d) the Release, threatened Release, or accidental Release into the environment, the workplace or other areas of Hazardous Substances, including emissions, discharges, injections, spills, escapes or dumping of Hazardous Substances; (e) transfer of interests in or control of real property which may be contaminated; (f) community or worker right-to-know disclosures with respect to Hazardous Substances; (g) the protection of wild life, marine life and wetlands, and endangered and threatened species; (h) storage tanks, vessels, containers, abandoned or discarded barrels and other closed receptacles; and (i) health and safety of employees and other Persons;

“ Environmental Permits ” includes all orders, permits, certificates, approvals, consents, registrations, licenses and other authorization of any kind or nature, issued by any authority of competent jurisdiction under Environmental Laws;

“ Excluded Registration ” means (i) a registration relating to the sale of securities to employees of Parent or a subsidiary pursuant to a stock option, stock purchase, or similar equity incentive plan; or (ii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Luokung Ordinary Shares.

“ Financial Statements ” means, collectively, the Prior Year-End Financial Statements and the Interim Financial Statements;

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

“ Hazardous Substance ” shall mean any: pollutants, contaminants or hazardous substances (as such terms are defined under CERCLA), pesticides (as such term is defined under the Federal Insecticide, Fungicide and Rodenticide Act), solid wastes and hazardous wastes (as such terms are defined under the Resource Conservation and Recovery Act), chemicals, other hazardous, radioactive or toxic materials, oil, petroleum and petroleum products (and fractions thereof), or any other material (or article containing such material) listed or subject to regulation under any law, statute, rule, regulation, order, Permit, or directive due to its potential, directly or indirectly, to harm the environment or the health of humans or other living beings;

“ Indebtedness ” mean (a) any indebtedness or other obligation for borrowed money of the Company, excluding Current Liabilities, (b) payment obligations of the Company for the deferred purchase price for purchases of property outside the Ordinary Course of Business arising in connection with transactions occurring prior to the Closing which are not evidenced by trade payables, (c) payment obligations of the Company under capital leases to which the Company is a party, (d) any off-balance sheet financing of the Company (including any obligation under swap transactions), (e) the aggregate amount of any unfunded or underfunded obligations under any pension, savings, profit sharing or other employee benefit arrangements maintained by the Company; and (f) any unpaid interest, prepayment premiums or penalties accrued or owing on any such indebtedness;

“ Intellectual Property ” means any intellectual property used in or relating to the Company or the Business, including but not limited to, any invention, patent, trademark, trade name, domain name or other indicia of source, copyright, confidential information, trade secret, whether or not registered, licenses (software or otherwise) and any right to apply for registration of any intellectual property;

“ Interim Statement of Assets, Liabilities and Owners’ Equity ” means the internally-prepared statement of assets, liabilities and owners’ equity of the Company as of [June 30, 2018], forming part of the Interim Financial Statements;

“ Interim Financial Statements ” means the Interim Statement of Assets, Liabilities and Owners’ Equity and the Interim Statement of Income and Expense, copies of which have been provided to Buyer;

“ Interim Statement of Income and Expense ” means the internally-prepared statement of income and expense of the Company for the 12 months ended June 30, 2018, forming part of the Interim Financial Statements;

“ Laws and Regulations ” means federal, state, local and foreign statutes, laws, ordinances, regulations, rules, codes, orders, constitutions, treaties, principles of common law, judgments, decrees or other requirements;

“ Licenses ” has the meaning ascribed thereto in Section 3.1(d)(ii) ;

“ Material Adverse Change ” means any change in the business, operations, results of operations, assets, capitalization, financial condition, licenses, permits, employee relations, concessions, rights, liabilities, whether contractual or otherwise, of the Company which is materially adverse to the business or operations of the Company;

“ Ordinary Course of Business ” shall mean the ordinary course of business consistent with past custom and practice (including with respect to frequency and amount);

“ Person ” includes any individual, corporation, limited liability company, partnership, firm, joint venture, syndicate, association, trust, government, governmental agency or board or commission or authority, and any other form of entity or organization;

“ Prior Year-End Financial Statements ” means the internally-prepared statement of assets, liabilities and owners’ equity of the Company and the internally-prepared statement income and expense of the Company for the fiscal year ended December 31, 2017, and in all cases, the notes thereto, in the form provided to Buyer;

“ Real Property ” means the leasehold interests in real property of the Company;

“ Reasonable Best Efforts ” shall mean best efforts, to the extent commercially reasonable;

“ Release ” means any release, effluent, spill, leak, emission, discharge, leach, dumping, deposit, dispersal, migration, escape or other disposal which is occurring or has occurred or been made in contravention of any Environmental Laws;

“ Securities Act ” shall mean the Securities Act of 1933, as amended.

“ Subsidiary ” shall mean any corporation, partnership, trust, limited liability company or other non-corporate business enterprise in which the Company (or another Subsidiary) holds stock or other ownership interests representing (a) more than fifty percent (50%) of the voting power of all shares or other ownership interests of such entity or (b) the right to receive more than fifty percent (50%) of the net assets of such entity available for distribution to the holders of shares or other ownership interests upon a liquidation or dissolution of such entity;

“ Tax ” or “ Taxes ” mean any and all taxes, charges, fees, duties, contributions, levies or other similar assessments or liabilities in the nature of a tax, including income, gross receipts, corporation, ad valorem, premium, value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, estimated, registration, recording, excise, real property, personal property, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, national insurance, business license, business organization, environmental, workers compensation, payroll, profits, severance, stamp, occupation, windfall profits, customs duties, franchise and other taxes of any kind whatsoever imposed by any Governmental Entity, and any interest, fines, penalties, assessments or additions to tax imposed with respect to such items or any contest or dispute thereof, whether disputed or not;

“ Tax Returns ” includes all returns, reports, claims for refund, information returns, declarations, designations, elections, notices, filings, forms, statements and other documents (whether in tangible, electronic or other form), including any amendments, schedules, attachments, supplements, appendices and exhibits thereto, made, prepared, filed or required to be made, prepared or filed under applicable Laws and Regulations in respect of Taxes;

“ Third Party ” means any Person other than the Parties;

The Exhibits that are attached to this Agreement are incorporated into this Agreement by reference and are deemed to be part hereof.

Unless otherwise indicated, all dollar amounts referred to in this Agreement are stated in lawful currency of the United States of America.

All matters arising out of or relating to this Agreement and the transactions contemplated hereby (including its interpretation, construction, performance and enforcement) shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of York or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of New York.

The division of this Agreement into articles, sections, paragraphs, subparagraphs and clauses and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “ this Agreement ”, “ hereof ”, “ herein ”, “ hereunder ” and similar expressions refer to this Agreement and the Schedules and Exhibits hereto and not to any particular article, section, paragraph, clause or other portion hereof and include any agreement or instrument supplementary or ancillary hereto. The term “including” shall mean including without limitation. The Parties acknowledge that their respective legal counsel have reviewed and participated in settling the terms of this Agreement and the Parties hereby agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting Party shall not be applicable in the interpretation of this Agreement.

In this Agreement, unless there is something in the subject matter or context inconsistent therewith:

Where any representation or warranty contained in this Agreement or any agreement delivered pursuant to this Agreement is expressly qualified by reference to the “Knowledge ” of a Party, such qualification shall be deemed to refer to the actual knowledge of such Party and the knowledge such Party would have if it had conducted a reasonable inquiry into the relevant subject matter; provided , with respect to Sellers and the Company, the phrase “ to the Knowledge of the Company ” shall be deemed to mean the knowledge of Sellers.

Time shall be of the essence of this Agreement.

Article II
PURCHASE AND SALE; CLOSING PROCEEDS

Article III
REPRESENTATIONS AND WARRANTIES

Sellers, jointly and severally (except where specifically indicated herein), represent and warrant to Buyer, as of the date hereof, the matters set forth in this Section 3.1 , in connection with the purchase of the Company Shares and the completion of the other transactions contemplated by this Agreement.

All of the Licenses, registrations and qualifications necessary to the operation of the Business are in place and are valid and in full force and effect. The Company has been and is operated in compliance with all terms and conditions of such Licenses and there are no proceedings in progress, pending or, to the Knowledge of any Seller or the Company, threatened, that could result in the revocation, cancellation or suspension of any of such Licenses. True and correct copies of all such Licenses have been provided to Buyer.

Article IV
COVENANTS

Sellers and the Company covenant to Buyer that they will do or cause to be done the following:

THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

THESE SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT. TRANSFER OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION.  HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.

Each Seller agrees that it will sell any Luokung Ordinary Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if the Luokung Ordinary Shares are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Luokung Ordinary Shares as set forth in this Section 4.1(d) is predicated upon Buyer’s reliance upon this understanding.

The Parties shall cooperate with each other and proceed, as promptly as is reasonably practicable, to make any filings (and comply with associated requests for information) and to obtain any necessary consents and approvals from government bodies, regulators, lenders, landlords and other Third Parties, and to endeavor to comply with all other legal or contractual requirements for or preconditions to the execution and consummation of the transactions contemplated hereby.

The Parties shall take all commercially reasonable actions desirable or necessary to execute, deliver and consummate an ownership interest purchase agreement by and among all of the shareholders of Suzhou Superengine and Beijing Zhong Chuan Shi Xun Technology Limited (“ Beijing Zhong Chuan ”), pursuant to which Beijing Zhong Chuan shall acquire all of the outstanding capital stock or equity interests of Suzhou Superengine substantially upon the terms previously discussed by the Parties (the “ Suzhou Superengine Stock Purchase Agreement ”).

Article V
RESERVED.

Article VI
CLOSING

Subject to the terms and conditions hereof, the Closing shall take place at on the date hereof by the electronic exchange of documents, or at such other place or places as may be mutually agreed upon by all of the Parties.

At or before the Closing, Sellers and the Company, as applicable, shall execute, or cause to be executed, and shall deliver, or cause to be delivered, to Buyer, all agreements, instruments, notices, certificates and other documents, or counterpart signatures thereof, which are required to be delivered by Sellers and the Company, as applicable, pursuant to the provisions of this Agreement, and Buyer shall execute, or cause to be executed, and shall deliver, or cause to be delivered to Sellers all directions and all agreements, instruments, notices, certificates and other documents, or counterpart signatures thereof, which Buyer is required to deliver or cause to be delivered pursuant to the provisions of this Agreement, including the following:

Article VII
INDEMNIFICATION

Subject to the provisions of the other sections of this Article VII , Sellers hereby agree, jointly and severally, to indemnify and hold harmless Buyer and any and all of its officers, directors, managers, members, agents and other Affiliates (collectively, the “ Buyer Parties ”) from and against any and all claims, losses, damages, costs (including attorneys’ and paralegals’ fees, as well as remediation costs, fines and penalties), expenses and liabilities, of every kind and nature, whether known or unknown, choate or inchoate (collectively, “ Losses ”), which may be made or brought against any Buyer Party, or which any Buyer Party may suffer or incur as a result of, in respect of or arising out of:

Buyer hereby agrees to indemnify and hold harmless Sellers, any and all of their respective officers, directors, managers, members, agents and other Affiliates (the “ Seller Parties ”) from and against any Losses which may be made or brought against the Seller Parties or which the Seller Parties may suffer or incur as a result of, in respect of or arising out of:

In no event shall the aggregate indemnification to be paid by any Seller under this Article VII exceed the greater of (x) the product of the Purchase Price multiplied by the proportion of such Seller’s Company Shares to the total amount of Company Shares (the “ Seller Purchase Price ”), or (y) the product of (i) the average closing price of the Ordinary Shares (or, of the Ordinary Share not traded at such time, Parent’s American Depository Shares) on the NASDAQ Capital Market (or succeeding trading market) over the five (5) trading days preceding the Determination Date (as defined below) multiplied by (ii) the number of Luokung Ordinary Shares received by such Seller upon the consummation of the transactions contemplated hereby (the “ Individual Seller Cap ”). Notwithstanding the foregoing, the Individual Seller Cap shall not apply to claims for indemnification resulting from or relating to breaches by such Seller constituting fraud or intentional misconduct. In no event shall the aggregate indemnification to be paid by Buyer under this Article VII exceed the Purchase Price.

As used herein, “ Determination Date ” shall mean the date on which a Seller first receives a claim for indemnification from the Buyer.

Article VIII
GENERAL PROVISIONS

Each of the Company, Sellers and Buyer hereby covenant and agree that, at any time and from time to time after the Closing Date, such Party will, upon the request of any other Party, do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, deeds, assignments, transfers, conveyances and assurances as may be reasonably required for the better carrying out and performance of all the terms of this Agreement.

Except as otherwise provided in Article VII , the rights and remedies of the Parties under this Agreement are cumulative and in addition to and not in substitution for any rights or remedies provided by law. Any single or partial exercise by any Party hereto of any right or remedy for default or breach of any term, covenant or condition of this Agreement does not waive, alter, affect or prejudice any other right or remedy to which such Party may be lawfully entitled for the same default or breach.

or to such other address as the Party entitled to or receiving such notice, designation, communication, request, demand or other document shall, by a notice given in accordance with this Section 8.3(b) , have communicated to the Party giving or sending or delivering such notice, designation, communication, request, demand or other document.

Any notice, designation, communication, request, demand or other document given or sent or delivered as aforesaid will:

This Agreement may be executed in a number of counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

Except as otherwise expressly provided herein, the Parties hereto shall pay their own respective expenses incident to the preparation of this Agreement and to the consummation of the transactions provided for herein.

This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, as the case may be. Notwithstanding the foregoing, however, this Agreement may not be assigned by Sellers, and may not be assigned by Buyer except to another entity under common control with Buyer upon prior written notice to Sellers. Nothing herein, express or implied, is intended to confer upon any Person, other than the Parties hereto and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

This Agreement, attached Exhibits, together with any confidentiality agreement entered into in respect of the Company prior to the date of this Agreement, constitute the entire agreement between the Parties hereto and, except as otherwise stipulated herein, supersede all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof.

Except as otherwise expressly provided in this Agreement, the covenants, representations and warranties shall survive the Closing and shall continue in full force and effect. Closing shall not prejudice any right of one Party against the other Party in respect of anything done or omitted under this Agreement or in respect of any right to damages or other remedies.

Each of the Parties hereto acknowledges and understands that non-performance or threatened non-performance of the covenants contained herein may not be compensable in damages. Accordingly, each of the Parties agrees and accepts that any adverse Party may, in addition to any other remedy for relief, enforce the performance of any covenant of this Agreement by injunction or specific performance upon application to a court of competent jurisdiction without proof of actual damages to such Party or notwithstanding that damages may be readily quantifiable and each of the Parties agrees not to plead sufficiency of damages as a defense in any proceeding for such injunctive relief brought by the other Party.

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. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified

Any Party hereto which is entitled to the benefits of this Agreement may, and has the right to, waive any term or condition hereof at any time on or prior to the Closing; provided, however , that such waiver shall be evidenced by written instrument duly executed on behalf of such Party.

Any action, suit or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the Parties in any state or federal courts located in New York, New York, and each of the Parties consents to the exclusive jurisdiction of such courts in any such action, suit or proceeding and waives any objection to venue laid therein. Each of the Parties hereto hereby consents to service of process in any such suit, action or proceeding in any manner permitted by the laws of the State of New York and waives and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit or proceeding any claim that service of process made in accordance with this Agreement does not constitute good and sufficient service of process.

No modification or amendment to this Agreement may be made unless agreed to by the Parties hereto in writing.

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IN WITNESS WHEREOF , the Parties hereto have duly executed this Stock Purchase Agreement as of the date first written above.