Exhibit 2.1

asset purchase AGREEMENT

By and between

Accelerize Inc.

(“Seller”)

and

CAKE Software, Inc.

(“Buyer”)

May 15, 2019

TABLE OF CONTENTS

asset purchase AGREEMENT

This ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of May 15, 2019, is entered into by and between Accelerize Inc., a Delaware corporation (“ Seller ”), and CAKE Software, Inc., a Delaware corporation (“ Buyer ”).

WHEREAS, among other things, Seller and the UK Subsidiary (as defined below) own and operate a business that licenses proprietary software (and provides services related to such software) for advanced analytics, attribution and campaign optimization for digital marketers (the “ Business ”); and

WHEREAS, Buyer and UK Buyer (as defined below) desire to purchase certain assets of Seller and the UK Subsidiary and assume certain liabilities of Seller and the UK Subsidiary relating to the Business, and Seller and the UK Subsidiary desire to sell such assets and assign such liabilities to Buyer and UK Buyer, upon the terms and conditions set forth herein (the “ Asset Purchase ”);

NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

Certain Definitions

As used herein, unless the context otherwise requires, the following terms (or any variant in the form thereof) have the following respective meanings. Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa , and the reference to any gender shall be deemed to include all genders. Unless otherwise defined or the context otherwise clearly requires, terms for which meanings are provided herein shall have such meanings when used in any Schedule or Exhibit hereto and each collateral document and certificate executed or required to be executed pursuant hereto or thereto or otherwise delivered, from time to time, pursuant hereto or thereto. For the avoidance of doubt, all references in this Agreement to “$” or Dollars shall mean United Stated Dollars.

“ Accounts Payable ” shall have the meaning attributed thereto in Section 2.1(c)(ii) .

“ Accounts Receivable ” means all rights of Seller to receive payment for services rendered in respect of the Business.

“ Acquired Assets ” shall have the meaning attributed thereto in Section 2.1(a) .

“ Acquired Contracts ” shall have the meaning attributed thereto in Section 2.1(a)(v) .

“ Action ” means any action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority.

“ Affiliate ” means, with respect to any Person, any other Person controlling, controlled by or under common control with, such Person, with “control” for such purpose meaning 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 or voting interests, by contract or otherwise.

“ Agreement ” shall have the meaning attributed thereto in the Preamble.

“ Arbitration Firm ” shall have the meaning attributed thereto in Section 2.7(c) .

“ Asset Purchase ” shall have the meaning attributed thereto in the Recitals.

“ Assumed Employee ” shall have the meaning as set forth in Section 6.1 .

“ Assumed Contracts ” shall have the meaning attributed thereto in Section 2.1(a)(v) .

“ Assumed Liabilities ” shall have the meaning attributed thereto in Section 2.1(c) .

“ Base Purchase Price ” means the sum of $19,400,000 plus or minus the Estimated Closing Date Adjustment.

“ Base Software ” means all source and object code comprising the “CAKE for Networks” and the “Journey by CAKE” software platforms, as the same exists as of the Closing Date, including, without limitation, all backend databases and infrastructure, front-end user interfaces and including any products that are in the development stage.

“ Bill of Sale and Assignment Agreement ” shall have the meaning attributed thereto in Section 2.2(a) .

“ Break Fee ” means $1,000,000.

“ Business ” shall have the meaning attributed thereto in the Recitals.

“ Buyer ” shall have the meaning attributed thereto in the Preamble.

“ Buyer Closing Statement ” shall have the meaning attributed thereto in Section 2.5(b) .

“ Buyer Indemnified Parties ” shall have the meaning attributed thereto in Section 10.2 .

“ Closing ” means the consummation of the transactions contemplated by Section 2.1 of this Agreement.

“ Closing Date ” means the date that is five (5) business days after all conditions set forth in Articles VIII and IX hereof have been satisfied, or such other date as may be otherwise expressly agreed by Buyer and Seller.

“ Closing Documents ” shall have the meaning attributed thereto in Section 2.2(c) .

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

“ Company IP Licenses ” shall have the meaning attributed thereto in Section 3.12(b) .

“ Confidential Data ” shall have the meaning attributed thereto in Section 3.12(j) .

“ Contract ” means any note, bond, mortgage, indenture, lease, contract, instrument, license, agreement, sales order, purchase order, open bid or other obligation or commitment and all rights and obligations therein, whether written or otherwise.

“ Covered Liabilities ” shall have the meaning attributed thereto in Section 10.2 .

“ Customer Contracts ” shall have the meaning attributed thereto in Section 2.1(a)( i v) .

“ Demand ” means any action, award, claim, complaint, cost, debt, demand, expense, fine, liability, loss, penalty, proceeding or settlement.

“ Earn-out Payment ” shall have the meaning attributed thereto in Section 2.7(a) .

“ Earn-out Period ” means each of the three (3) consecutive twelve-month periods commencing at the end of the month following the Closing Date.

“ Earn-out Statement ” shall have the meaning attributed thereto in Section 2.7(b) .

“ Employee Plan ” means any “employee benefit plan” (as defined in Section 3(3) of ERISA (including any “multiemployer plan” as defined in Section 3(37) of ERISA)) or any other plan, policy, program, agreement or arrangement (whether written or oral, whether or not subject to ERISA, whether formal or informal) providing for present or future compensation, bonuses, profit-sharing, stock purchase, stock option or other stock related rights or other forms of incentive or deferred compensation, change-in-control, retention or salary continuation benefits, vacation benefits, benefits-related insurance (including any self-insured arrangements), health or medical benefits, Code Section 125 “cafeteria” or “flexible” benefits, employee loan, educational assistance or material fringe benefit plan, employee assistance program, disability or sick leave benefits, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including any compensation, pension, health, medical or life insurance benefits) or any other material benefit of any kind to any current or former employee of the Business (or any dependent or beneficiary thereof) or any current or former consultant or director of the Business, in each case maintained or contributed to by Seller or any of its ERISA Affiliates or in which Seller or any of its ERISA Affiliates participates or participated or with respect to which Seller or any of its ERISA Affiliates has any direct or indirect liability, whether contingent or otherwise.

“ Employment Costs ” means all amounts payable to or in respect of the UK Employees, including wages, salaries, accrued bonus, commission, overtime pay, holiday pay, contributions to retirements benefit schemes and tax liabilities.

“ Entity ” means any Person other than a natural person.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ ERISA Affiliates ” means any Person that is or has been in the five year period ending with the Closing Date treated as a single employer with Seller under Sections 414(b), (c), (m) or (o) of the Code or Sections 4001(a)(14) or 4001(b)(1) of ERISA.

“ Estimated Closing Date Adjustment ” shall have the meaning attributed thereto in Section 2.5(a) .

“ Executive Shareholder ” means Brian Ross.

“ Existing Indebtedness ” means the amount of indebtedness of Seller pursuant to those certain loan agreements entered into by and between Seller and each of SaaS Capital Funding II, LLC and Beedie Investments Limited, as senior lenders.

“ Final Closing Date Adjustment ” shall have the meaning attributed thereto in Section 2.5(c) .

“ Financial Statement Date ” shall have the meaning attributed thereto in Section 3.2 .

“ Financial Statements ” shall have the meaning attributed thereto in Section 3.2 .

“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any federal, state, local or foreign Entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission, or instrumentality of the United States, any State of the United States or political subdivision thereof, and any tribunal or arbitral authority of competent jurisdiction, and any self-regulatory organization.

“ Gross Revenue ” means the gross revenue earned by Buyer in respect of the Business, calculated in accordance with generally accepted accounting principles.

“ Holdback Amount ” means the sum of $500,000, as adjusted pursuant to the terms of this Agreement.

“ Holdback Release Date ” means the first business day occurring 365 days after the Closing Date.

“ Indemnity Cap ” shall have the meaning attribute thereto in Section 10.2 .

“ Indemnity Deductible ” shall have the meaning attributed thereto in Section 10.2 .

“ Intellectual Property ” means all patents, patent rights, patent applications, software and other copyrights and copyright applications, trade secrets, know-how, service marks, maskworks, trade names trademarks and trade mark applications, domain names and associated website content, domain name systems, common law rights in any of the foregoing, rights to apply for applications, reissues, reexaminations, divisionals, renewals, extensions, continuations, and continuations-in-part in any of the foregoing, and moral rights of any authors, technical data, tangible or intangible proprietary information, unfiled invention disclosures and inventions (whether or not patentable), in each case in all countries in the world, and all documentation relating to any of the foregoing.

“ Investment Plans ” shall have the meaning attributed thereto in Section 6.3 .

“ knowledge ” (including the term “to the knowledge of”) means actual knowledge, after due inquiry of appropriate employees and files. Knowledge of Seller means the actual knowledge, after due inquiry of appropriate employees and review of files, of the Persons named on Schedule I hereto.

“ Laws ” means statutes, regulations, ordinances, rules and other laws promulgated by a Governmental Authority.

“ Licenses ” means permits, registrations, approvals, franchises or other authorizations including without limitation authorizations with respect to patents, patent applications, trademarks, service marks, trade names, copyrights, computer software programs, technology, trade secrets and know-how, and means, when used as a verb, the act of granting a License.

“ Lien ” means a restriction on voting or transfer, or a pledge, lien, mortgage, hypothecation, collateral assignment, charge, encumbrance, easement, covenant, restriction, title defect, encroachment or security interest of any kind.

“ Long Stop Date ” shall have the meaning attributed thereto in Section 5.8(g) .

“ Los Angeles Lease ” means that certain lease for an executive office comprising 1,095 square feet in Los Angeles, CA that is the principal workplace for Seller’s General Counsel.

“ Material Adverse Effect ” shall mean any material adverse change, event, circumstance or development with respect to, or material adverse effect on, (i) the Business or (ii) the ability of Buyer to operate the Business immediately after the Closing in the manner operated by Seller prior to the Closing.

“ Material Contract ” means any Contract related to the Business required to be listed on Schedule 3. 8 hereto.

“ Net Revenue ” means, with respect to each Earn-out Period, the Gross Revenue earned by the Business, less any Third-Party Costs of Goods directly incurred by the Business, calculated in accordance with U.S. generally acceptable accounting principles, consistently applied.

“ Net Tangible Assets ” means the book value of the Tangible Assets, less the book value of the Specified Liabilities as of the Closing Date, calculated in accordance with the methodology agreed by the parties and set out in Schedule 2.5 .

“ Non-Competition Agreement ” shall have the meaning attributed thereto in Section 5.8(e) .

“ Non-Solicitation Agreement ” shall have the meaning attributed thereto in Section 5.8(f) .

“ Orders ” means judgments, orders, injunctions, decrees, stipulations or awards (whether rendered by a court, administrative agency, arbitrator or other tribunal) and whether imposed or entered by consent.

“ Owned Intellectual Property ” shall have the meaning attributed thereto in Section 3.12(a) .

“ Parent ” means Constellation Software Inc.

“ Parent Guarantee ” means that certain guarantee, duly executed by the Parent, with respect to Buyer’s obligations (i) to pay the Holdback Amount to Seller on the Holdback Release Date and (ii) to pay the Earn-Out Payments, if any, to Seller, each as set out in this Agreement.

“ Permitted Liens ” means any Liens (i) for Taxes not yet due or payable; or (ii) that are not material and constitute mechanics’, carriers’, workers’ or like liens incurred in the ordinary course of business.

“ Person ” means a natural person, a corporation, a limited liability company, a partnership, an association, a trust or any other Entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

“ Pierini Employment Agreement ” means that certain Employment Agreement, dated as of February 10, 2014, between Seller and Santi Pierini, as amended from time to time.

“ Privacy Laws ” shall have the meaning attributed thereto in Section 3.12(j) .

“ Privacy Policies ” shall have the meaning attributed thereto in Section 3.12(j) .

“ Regulations ” means the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended.

“ Retained Assets ” means those assets of Seller that are not Acquired Assets.

“ Retained Liabilities ” means those liabilities of Seller and the UK Subsidiary that are not Assumed Liabilities as set forth in Section 2.1(d) .

“ Schedule ” means any Schedule hereto.

“ Seller ” shall have the meaning attributed thereto in the Preamble.

“ Seller Indemnified Parties ” shall have the meaning attributed thereto in Section 10.3 .

“ Separate Counsel ” shall have the meaning attributed thereto in Section 10.4(b) .

“ Specified Liabilities ” means the value of the following liabilities of Seller and the UK Subsidiary to the extent relating to the Business: Accounts Payable, advanced billings and deferred revenue, sales tax payable, employee–related payables and all other accrued expenses, in each case with respect to the Business.

“ Tangible Assets ” means the value of the following assets of Seller and the UK Subsidiary to the extent relating to the Business: Accounts Receivable, inventory, pre-paid expenses and fixed assets, in each case with respect to the Business, net of all accumulated depreciation and excluding any intangible assets such as goodwill, any capitalized development expenses, and deferred tax assets.

“ Taxes ” means all federal, state, local or foreign net or gross income, gross receipts, net proceeds, sales, use, ad valorem, value added, franchise, bank shares, withholding, payroll, employment, excise, property, deed, stamp, alternative or add-on minimum, environmental, profits, windfall profits, transaction, license, lease, service, use, occupation, severance, energy, unemployment, social security, worker’s compensation, capital premium, customs, duties or other taxes or charges of a similar nature imposed, enforced, or collected by any taxing authority, whether disputed or not, together with any interest, penalties, additions to tax or additional amounts with respect thereto.

“ Tax Return(s) ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto and including any amendment thereof.

“ Third-Party Claim ” means any Action by or before any Governmental Authority asserted by a Person other than any party hereto or their respective Affiliates which gives rise to a right of indemnification hereunder.

“ Third-Party Code ” shall have the meaning attributed thereto in Section 2.1(a)(vi) .

“ Third-Party Costs of Goods ” means the following third party costs of goods incurred by Buyer directly related to the Business:

provided that with respect to items (vii), (viii) and (x) above, in the event the Base Software is bundled with another Buyer product, the amount of such item to be included in this calculation will be limited to the proportionate share of such item based on the proportionate revenue attributable to the Base Software in such bundled product.

“ Transfer Tax ” shall have the meaning attributed thereto in ARTICLE VII .

“ Transaction Documents ” shall mean this Agreement together with the Bill of Sale and Assignment Agreement, the UK Assignment Agreement, the Non-Competition Agreement and the Non-Solicitation Agreement.

“ Treasury Regulations ” means the regulations promulgated under the Code.

“ UK Assignment Agreement ” means an assignment agreement executed by the UK Subsidiary pursuant to which it transfers to UK Buyer all of its right, title and interest in the UK Contracts and the UK Employees, in form and content reasonably satisfactory to UK Buyer.

“ UK Buyer ” means Ibcos Computers Limited, an Affiliate of Buyer and a limited company organized under the laws of England and Wales.

“ UK Contracts ” means the Contracts set forth on Schedule 2.1(a)(x) , section (ix) of Schedule 3.8 and Schedule 6.1B to be assigned from the UK Subsidiary to UK Buyer pursuant to the UK Assignment Agreement.

“ UK Employees ” means the persons listed as employees of the UK Subsidiary in Schedule 6.1B to this Agreement.

“ UK Subsidiary ” means Cake Marketing UK Ltd., a limited company organized under the laws of England and Wales.

ARTICLE II

Sale of Assets; Closing

2.1.      Purchase and Sale .

(a)       Acquired Assets . On the basis of the representations, warranties, covenants and agreements and subject to the satisfaction or waiver of the conditions set forth herein, at the Closing, Buyer will purchase from Seller and Seller will sell, convey, transfer, assign and deliver to Buyer, free and clear of all Liens, other than Permitted Liens, all of the following assets (the “ Acquired Assets ”):

(i)     all of the right, title and interest in and to the Intellectual Property of Seller which is used in or by the Business, including without limitation all Intellectual Property rights in and to, associated with, or related to the Base Software;

(ii)     a full copy of the Base Software;

(iii)    all lists of present customers and suppliers of the Business as operated by Seller and the UK Subsidiary;

(iv)     all right, title and interest of Seller in and to the customer contracts associated with or used by the Business, including all rights to provide services pursuant to such contracts, and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date, except for such rights that are Retained Assets or Retained Liabilities) (collectively, the “ Customer Contracts ”);

(v)     all right, title and interest of the UK Subsidiary in and to the UK Contracts and all right, title and interest of Seller in and to the Contracts associated with or used by the Business, other than Customer Contracts, including, without limitation, the Company IP Licenses and confidentiality agreements executed by Seller with third parties in connection with a potential sale of the Acquired Assets to such third parties (collectively, the “ Assumed Contracts ”); the Customer Contracts and the Assumed Contracts shall jointly be referred to as the “ Acquired Contracts ”;

(vi)     the third-party software source code relating to the Business (the “ Third-Party Code ”), to the extent the same can be transferred;

(vii)   the Tangible Assets, together with any rights, claims and interests arising out of contracts relating thereto or the breach of any express or implied warranty by the manufacturers or sellers of any such assets or any component part thereof (except for such rights, claims and interests that are included in the Retained Assets or Retained Liabilities);

(viii) all claims of Seller or the UK Subsidiary against third parties relating to the Acquired Assets, whether choate or inchoate, known or unknown, contingent or noncontingent (except to the extent any such claims relate to Retained Assets or Retained Liabilities);

(ix)     the financial, accounting, operating, sales and marketing or other data and records pertaining to the Business;

(x)     all leases of real property or for buildings in the name of either Seller or the UK Subsidiary (other than the Los Angeles Lease), all of which are set forth on Schedule 2.1(a)( x ) (and for greater certainty in order to effect such transfer, Seller will cause the UK Subsidiary to deliver the UK Assignment Agreement to UK Buyer at Closing);

(xi)     all employment agreements entered into by either Seller or the UK Subsidiary with respect to each Assumed Employee or UK Employee set forth on Schedule 6.1 A and Schedule 6.1B hereto (and for greater certainty in order to effect such transfer, Seller will cause the UK Subsidiary to deliver the UK Assignment Agreement to UK Buyer at Closing);

(xii)   all certificates, licenses, registrations and other similar rights held by Seller with respect to the Business and obtained from all public or professional authorities; and

(xiii)  all other content and materials used by the Business, including, without limitation, marketing materials, case studies, and white papers.

(b)      Retained Assets . Seller shall retain all rights under and liabilities with respect to the Retained Assets, which are specifically excluded from the Acquired Assets. Buyer shall have no rights under and no liabilities with respect to the Retained Assets. The Retained Assets shall include, without limitation, the following:

(i)     all “Accelerize” registered and common law trademarks;

(ii)    all “Accelerize” domain names and associated website content, including the advertising Contracts entered into by the Seller with Google AdWords, LinkedIn and Facebook;

(iii)    the right of Seller to any Tax refunds, credits, carryforwards, carrybacks or other Tax attributes that relate to Taxes that are Retained Liabilities;

(iv)    all cash;

(v)     shares of capital stock of Seller held in treasury;

(vi)    all insurance policies;

(vii)   all minute books and records of Seller;

(viii)  the Los Angeles Lease; and

(ix)    the capital stock of any subsidiary or Affiliate of Seller.

(c)      Assumed Liabilities . Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties contained herein, at the Closing, in consideration for the sale, assignment, conveyance, transfer and delivery of the Acquired Assets to Buyer and UK Buyer, Seller and the UK Subsidiary shall assign and Buyer and UK Buyer, as applicable, shall assume solely the liabilities of Seller and the UK Subsidiary set forth in this Section 2.1(c) (collectively, the “ Assumed Liabilities ”). The Assumed Liabilities consist of the following:

(i)     liabilities in respect of each Acquired Contract assumed by Buyer, and each UK Contract assumed by UK Buyer, to the extent arising from and after the Closing Date;

(ii)     accounts payable, including trade payables, and accrued expenses (other than any Taxes) of Seller and the UK Subsidiary to the extent relating to the Business (the “ Accounts Payable ”);

(iii)    liabilities in respect of the Acquired Assets to the extent arising from and after the Closing Date;

(iv)    liabilities in respect of all real property taxes, sales taxes, personal property taxes and similar ad valorem Taxes that relate to the Acquired Assets to the extent such taxes apply to any period after the Closing Date; for the purpose of this Section 2.1 (c) (iv) , such Taxes which are payable for a taxable period that includes, but does not end on, the Closing Date shall be allocated between Seller and Buyer ratably on a daily basis;

(v)    any and all liabilities or obligations of Seller and the UK Subsidiary in any way arising from or relating to the Assumed Employees or the UK Employees to the extent arising from and after the Closing Date; and

(vi)    liabilities of Seller and the UK Subsidiary in respect of all advanced billing or deferred revenues to the extent relating to the Business.

Seller shall assign and Buyer shall assume any and all Assumed Liabilities.

(d)      Retained Liabilities . Seller and the UK Subsidiary shall retain and be solely liable for all debts, penalties, obligations, or liabilities of Seller and the UK Subsidiary whatsoever, whether known or unknown, whether current, long-term, liquidated or contingent, which are not Assumed Liabilities. The Retained Liabilities shall include, without limitation, the following:

(i)     All real property taxes, personal property taxes and similar ad valorem Taxes that relate to the Acquired Assets for taxable periods (or portions thereof) ending on or prior to the Closing Date; for the purpose of this Section 2.1(d)(i) , such Taxes which are payable for a taxable period that includes, but does not end on, the Closing Date shall be allocated ratably on a daily basis;

(ii)     Taxes of the UK Subsidiary or Seller or any other Person for which Seller is liable under Section 1.1502-6 of the Treasury Regulations (which, for the avoidance of doubt, include all Taxes required to be paid by Seller not described in Section 2.1(d)(i) , including all sales and use taxes due with respect to transactions occurring on or prior to the Closing Date) and the portion of the Transfer Taxes for which Seller is liable under ARTICLE VII ;

(iii)    any and all liabilities or obligations in any way arising from or relating to Employee Plans prior to the Closing with respect to Assumed Employees;

(iv)    any sums payable pursuant to Section 3.9(b) including those relating to the termination of any employee of Seller by Seller or any employee of the UK Subsidiary by the UK Subsidiary;

(v)    Intellectual Property infringement claims made by any third party whether made before or after the Closing Date, with respect to Seller’s or the UK Subsidiary’s operation of the Business prior to the Closing Date;

(vi)    all Accounts Payable incurred by Seller or the UK Subsidiary on or prior to the Closing Date;

(vii)   all liabilities arising out of, under or in connection with Contracts that are not Acquired Contracts;

(viii)  all liabilities of Seller or the UK Subsidiary relating to Seller’s compliance or the UK Subsidiary’s compliance, as applicable, with Orders or other legal requirements of Seller or the UK Subsidiary (including, without limitation, the Regulations);

(ix)    any liability to indemnify, reimburse or advance amounts to any officer, director or stockholder of Seller or its Affiliates;

(x)   any and all liabilities constituting, or arising out of, the Existing Indebtedness or any other indebtedness of Seller or the UK Subsidiary owed to its banks, shareholders or any other non-arm’s length party;

(xi)    any and all liabilities relating to the Confidential Settlement Agreement and Release made between Seller and Jeff McCollum dated November 29, 2016;

(xii)   any and all liabilities constituting, or arising out of any claims made by the shareholders of Seller in respect of the transactions contemplated by this Agreement; and

(xiii)  all liabilities in respect of any pending or threatened litigation, or any claim arising out of, relating to or otherwise in respect of the operation of the Business to the extent such litigation or claim and associated liability relates to such operation on or prior to the Closing Date.

2.2.      Closing Documents . At the Closing:

(a)     Seller and the UK Subsidiary shall assign and transfer to Buyer or such Person as Buyer may designate the Acquired Assets, and Buyer or its designee shall assume from Seller the Assumed Liabilities by delivery of (i) a Bill of Sale and Assignment Agreement in substantially the form attached hereto as Exhibit A (the “ Bill of Sale and Assignment Agreement ”), duly executed by Seller and Buyer, (ii) the UK Assignment Agreement substantially in the form attached hereto as Exhibit B , (iii) all such other good and sufficient instruments of conveyance, assignment and transfer, and such affidavits and other instruments in form and substance reasonably acceptable to Buyer’s counsel, as shall be effective to transfer to Buyer and UK Buyer the Acquired Assets, and (iv) such other good and sufficient instruments of assumption, in form and substance reasonably acceptable to each of Buyer’s and Seller’s counsel, as shall be effective to cause Buyer and UK Buyer to acquire the Acquired Assets and assume the Assumed Liabilities.

(b)     Buyer shall pay by wire transfer initiated no later than 12:00 P.M. EDT the Base Purchase Price in immediately available funds to the account specified by Seller.

(c)     As of the date hereof Seller, Buyer and UK Buyer, as applicable, have executed and delivered each of the documents set forth in Section 2.2(a) above, and as of the Closing Date Seller and Buyer shall have delivered the other documents required to be delivered under ARTICLE VIII (together with the other documents specified in Section 2.2(a) the “ Closing Documents ”), and on the Closing Date upon payment of the Base Purchase Price as provided in Section 2.2(b) all Closing Documents in escrow shall be automatically released from escrow and deemed delivered to the respective parties.

2.3.      Time and Place of Closing . The Closing shall take place on the Closing Date by confirmation from Seller to Buyer of the receipt of the Base Purchase Price and the subsequent automatic release from escrow and delivery of the Closing Documents as provided in Section 2.2(c) .

2.4.      Nonassignable Contracts . Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any claim, Contract, authorization of a Governmental Authority, sales, service or purchase order, or any claim, right or benefit arising thereunder or resulting therefrom, if the Asset Purchase would be deemed an attempted assignment thereof without the required consent of a third party thereto and would constitute a breach thereof or in any way affect the rights of Seller, the UK Subsidiary, Buyer or UK Buyer thereunder. If such consent is not obtained, or if the consummation of the Asset Purchase would affect the rights of Seller or the UK Subsidiary thereunder so that Buyer or UK Buyer would not in fact receive the benefit of all such rights, (i) subject to the satisfaction or waiver of the conditions contained in Article VIII and Article IX, the Closing shall nonetheless still occur provided that prior to the Closing Date, in the event Seller is unable to obtain consent to assign its contact with Amazon Web Services, dated as of August 1, 2016, to Buyer in advance of the Closing, Buyer and Seller shall have entered into a separate agreement, reasonably satisfactory to the parties, pursuant to which Seller shall be responsible to provide to Buyer the software and services obtained by Seller pursuant to such agreement (including all related agreements and addendums and including the AWS Customer Agreement, as referenced therein) until such time as Seller is able to obtain consent to assign and transfer such contract to Buyer, (ii) upon Buyer’s written request Seller shall cooperate with Buyer, at Buyer’s sole cost and expense, in any arrangement designed to provide for the benefits thereof to Buyer or UK Buyer, including subcontracting, sublicensing or subleasing to Buyer or UK Buyer or enforcement for the benefit of Buyer or UK Buyer of any and all rights of Seller or the UK Subsidiary against a third party thereto arising out of the breach or cancellation by such third party or otherwise. Following the Closing, Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required in relation thereto.

2.5.      Purchase Price Adjustment .

(a)      Schedule 2. 5 sets forth Seller’s good faith estimate of the calculation of Net Tangible Assets of the Business as of the Closing (the “ Estimated Closing Date Adjustment ”), which shall be delivered by Seller to Buyer for its review and approval no later than two (2) business days in advance of the Closing Date.

(b)     Within 90 days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a calculation of the Net Tangible Assets of the Business as of the Closing, prepared in accordance with the methodology agreed by the parties and set out in Schedule 2.5 and accompanied by the balance sheet of the Business as of the Closing Date (the “ Buyer Closing Statement ”).

(c)     Within 30 days following receipt by Seller of the Buyer Closing Statement, Seller shall deliver written notice to Buyer of any dispute it has with respect to the preparation or content of the Buyer Closing Statement. If Seller does not notify Buyer in writing in reasonable detail of a dispute with respect to the Buyer Closing Statement within such 30-day period, such Buyer Closing Statement will be final, conclusive and binding on the parties. In the event of such notification of a dispute, Buyer and Seller shall negotiate in good faith to resolve such disputed items. If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disputed items within 120 days after Seller notifies Buyer of its objections, then Buyer and Seller shall jointly engage a mutually agreed upon accounting firm to resolve only such disputed items and/or items still in dispute. All professional fees incurred by such accounting firm will be shared equally between Buyer and Seller. All determinations made by the accounting firm, as well as the calculation of the Net Tangible Assets of the Business as of the Closing Date in accordance with this Section 2.5(c) (the “ Final Closing Date Adjustment ”), will be final, conclusive and binding on the parties to this Agreement.

(d)    For purposes of complying with the terms set forth in this Section  2.5 , Buyer and Seller shall cooperate with and make available to each other and their respective representatives all information, records, data and working papers, and shall permit access to its facilities and personnel, as may be reasonably requested in connection with the preparation and analysis of the Buyer Closing Statement and the resolution of any disputes thereunder.

(e)     If the Final Closing Date Adjustment, as finally determined in accordance with this Section 2.5 , shows the Net Tangible Assets to be greater than the amount of the Net Tangible Assets as calculated pursuant to the Estimated Closing Date Adjustment (any such excess being the “ NTA Excess ”), then Buyer will pay for credit to Seller the Holdback Amount plus the amount of the NTA Excess on the Holdback Release Date by bank wire transfer to the account set forth on Schedule I hereto.

(f)     If the Final Closing Date Adjustment, as finally determined in accordance with this Section 2.5 , shows the Net Tangible Assets to be less than the amount of the Net Tangible Assets as calculated pursuant to the Estimated Closing Date Adjustment (the amount of the difference, expressed as a positive number, being the “ NTA Shortfall ”) and

(i)     the NTA Shortfall is less than the Holdback Amount, then Buyer will pay for credit to Seller the Holdback Amount less the amount of the NTA Shortfall on the Holdback Release Date by bank wire transfer to the account set forth on Schedule I hereto; or

(ii)    the NTA Shortfall is greater than the Holdback Amount, then Buyer will retain the entire Holdback Amount and Seller will pay to Buyer by wire transfer on the Holdback Release Date an amount equal to the difference between the NTA Shortfall and the Holdback Amount.

(g)     Notwithstanding the provisions of Sections 2.5(e) and (f) , Buyer will be entitled to withhold from any payment of the NTA Excess or the Holdback Amount an amount in respect of any claim of Buyer in accordance with the provisions of Section 2.6 .

2.6.      Setoff of Claims Against the Holdback Amount .

(a)      In the case of a claim that is made by Buyer in compliance with the provisions of Article X:

(i)     If prior to the Holdback Release Date such a claim has not been agreed or determined, then if Buyer believes that it has a reasonable basis for asserting such claim for indemnification under Article X, Buyer may by providing written notice of such election to Seller, withhold from the applicable payments to be made in relation to the Holdback Amount and the NTA Excess, if any, the reasonably anticipated amount of such claim pending resolution of such claim. Such notice will include the amount to be withheld and the basis for such action.

(ii)    If (and when) such a claim is agreed or determined to be a claim for which Seller must indemnify Buyer pursuant to Article X, the amount of such finally determined claim will be withheld from and will setoff and reduce (in each case to the extent then outstanding), the amount due to Seller in relation to the Holdback Amount and the NTA Excess.

(iii)   If (and when) such a claim is determined to be a claim for which Seller is not obligated to indemnify Buyer pursuant to Article X, or if the amount of such finally determined claim is determined to be less than the amount that was withheld pursuant to this Section 2.6 , then (i) if the Holdback Release Date has then passed, the amount by which the withheld amount exceeds the amount of the finally determined claim will promptly, and in any event within five (5) business days, be paid to Seller, and (ii) if the Holdback Release Date has not then passed, then the amount of such finally determined claim will no longer be held in reserve against payment of the Holdback Amount and the NTA Excess.

(b)     In the case of a claim that is made by Seller in compliance with the provisions of Article X:

(i)     If prior to the Holdback Release Date such a claim has not been agreed or determined, then if Seller believes that it has a reasonable basis for asserting such claim for indemnification under Article X, Seller may by providing written notice of such election to Buyer, request the reasonably anticipated amount of such claim pending resolution of such claim be added to the applicable payments to be made in relation to the Holdback Amount and the NTA Excess, if any. Such notice will include the amount to be added and the basis for such action.

(ii)    If (and when) such a claim is agreed or determined to be a claim for which Buyer must indemnify Seller pursuant to Article X, the amount of such finally determined claim will be added to and will increase the amount due to Seller in relation to the Holdback Amount and the NTA Excess.

(iii)   If (and when) such a claim is determined to be a claim for which Buyer is not obligated to indemnify Seller pursuant to Article X, or if the amount of such claim is determined to be less than the amount that was added to the Holdback Amount pursuant to this Section 2.6 , then (i) if the Holdback Release Date has then passed, the disallowed amount of such claim that was added to the Holdback Amount will promptly, and in any event within five (5) business days, be paid to Buyer, and (ii) if the Holdback Release Date has not then passed, then the disallowed amount of such claim will no longer be added to the payment to be made to Seller in relation to the Holdback Amount and the NTA Excess, if any.

2.7.      Earn-out .

(a)     As additional consideration for the Asset Purchase, at such times as provided in Section 2.7(e) , Buyer shall pay for credit to Seller with respect to each Earn-out Period an amount, if any (each, an “ Earn-out Payment ”), equal to 30% of the amount by which the Net Revenue of the Business exceeds $13,750,000 with respect to such Earn-out Period by bank wire transfer to the account set forth on Schedule I hereto. The amount of any Earn-out Payment shall be treated by Buyer and Seller as an adjustment to the Base Purchase Price.

(b)     Buyer shall prepare standalone financial statements of the Business during the Earn-out Period, which financial statements shall be prepared in accordance with U.S. generally accepted accounting principles, reviewed for each quarterly period and delivered to Seller within 45 days of the end of each quarterly period, and audited for each annual period and delivered to Seller within 75 days of the end of each annual period. On or prior to the date that is 15 days after receipt by Seller of the standalone audited financial statements of the Business in respect of, and after, each Earn-out Period, Buyer shall prepare and deliver to Seller a statement (an “ Earn-out Statement ”) setting forth Buyer’s calculation of Net Revenue for such Earn-out Period.

(c)     Within 30 days following receipt by Seller of an Earn-out Statement, Seller shall deliver written notice to Buyer of any dispute it has with respect to the preparation or content of such Earn-out Statement. If Seller does not notify Buyer in writing in reasonable detail of a dispute with respect to such Earn-out Statement within such 30-day period, such Earn-out Statement will be final, conclusive and binding on the parties. In the event of such notification of a dispute, Buyer and Seller shall negotiate in good faith to resolve such disputed items. If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disputed items within fifteen (15) days after Seller notifies Buyer of its objections, then Buyer and Seller jointly shall engage a mutually agreed upon accounting firm (the “ Arbitration Firm ”) to resolve only such disputed items and/or items still in dispute. In the event Buyer and Seller engage the Arbitration Firm, as promptly as practicable thereafter, Buyer and Seller shall each prepare and submit a presentation to the Arbitration Firm. As soon as practicable thereafter, Buyer and Seller shall cause the Arbitration Firm to choose one of the party’s positions ( i.e. , whether and to what extent the Earn-out Payment is earned by Seller for the applicable Earn-out Period) based solely upon the presentation by Buyer and Seller. All professional fees incurred by the Arbitration Firm will be shared equally between Buyer and Seller. All determinations made by the Arbitration Firm will be final, conclusive and binding on the parties to this Agreement. Notwithstanding anything herein to the contrary, the dispute resolution mechanism contained in this Section 2.7(c) shall be the exclusive mechanism for resolving disputes regarding the Earn-out Payments, if any.

(d)   For purposes of complying with the terms set forth in this Section 2.7 , Buyer shall cooperate with and make available to Seller and Seller’s representatives, on a commercially reasonable basis, all information, records, data and working papers, and shall permit access to Buyer’s facilities and personnel as may be reasonably requested in connection with the preparation and analysis of the Earn-out Statements and financial statements and the resolution of any disputes thereunder. During each Earn-out Period, along with the reviewed standalone financial statements of the Business, Buyer will provide to Seller with a calculation of the Net Revenues of the Business for such Earn-out Period through the end of such calendar quarter. If Buyer, on the one hand, or Seller, on the other hand, breach their respective obligations under this Section 2.7(d) , the dispute periods set forth in Section 2.7(c) shall automatically be extended until such breach is cured by the breaching party.

(e)     If an Earn-out Payment is payable (as finally determined pursuant to Section 2.7(c) ), then Buyer shall pay for credit to Seller an amount in cash equal to such Earn-out Payment, by bank wire transfer of immediately available funds to the account set forth on Schedule I hereto, within 120 days after the applicable Earn-out Period. Notwithstanding the foregoing, in the event of a dispute with respect to an Earn-out Payment, Buyer shall pay Seller an amount in cash equal to such Earn-out Payment reasonably promptly following the resolution of such dispute as finally determined pursuant to Section 2.7(c) hereof.

(f)     Subsequent to the Closing, Buyer shall have (x) sole discretion with regard to all matters relating to the Business and (y) no obligation to cause the Business to achieve any Earn-out Payment; provided that, with respect to the foregoing clauses (x) and (y), Buyer shall not, directly or indirectly, take any actions in bad faith, the purpose of which is avoiding or reducing any of the Earn-out Payments hereunder

ARTICLE III

Representations and Warranties of Seller

Seller hereby represents and warrants to Buyer as follows:

3.1.      Incorporation; Authorization; Etc .

(a)    Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business in each jurisdiction in which the nature of property owned or leased on behalf of Seller or the conduct of Seller requires it to be so qualified, except where the failure to be in good standing or to be duly qualified to transact business would not, individually or in the aggregate, adversely affect the Business in any material respect. The UK Subsidiary is a limited company duly organized, validly existing and in good standing under the laws of England and Wales and is duly qualified to transact business in each jurisdiction in which the nature of property owned or leased on behalf of UK Seller or the conduct of the UK Subsidiary requires it to be so qualified, except where the failure to be in good standing or to be duly qualified to transact business would not, individually or in the aggregate, adversely affect the Business in any material respect.

(b)    Seller and the UK Subsidiary has all requisite power and authority to own the assets related to the Business, to carry on the Business as it is now being conducted, to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will be duly and validly authorized by all necessary corporate and shareholder action on the part of Seller in advance of the Closing Date. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not violate any provision of Seller’s or the UK Subsidiary’s certificate of incorporation, bylaws or other organizational documents, as applicable. This Agreement has been duly executed and delivered by Seller, and, assuming the due execution hereof by Buyer, this Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.

(c)     The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not except as disclosed in Schedule 3.1(c) , (i) violate any provision of, or be an event that is (or with the passage of time will result in) a violation of, or result in the acceleration of or entitle any Person to accelerate (whether after the giving of notice or lapse of time or both) any material obligation under, or entitle any Person to terminate any Contract related to the Business, or result in the imposition of any Lien upon any of the Acquired Assets, (ii) require the consent of any third party or any increase in any payment or change in any term provided for under any Contract related to the Business involving annual payments in excess of $30,000 in order to effect an assignment of such Contract, where the failure to so obtain consent to such assignment would be reasonably likely to result in a Material Adverse Effect, or (iii) violate or conflict with any other material restriction of any kind or character to which Seller or the UK Subsidiary is subject.

(d)     Except as otherwise expressly set out in this Agreement, at the Closing, Seller and the UK Subsidiary will deliver to Buyer and UK Buyer good and exclusive title to the Acquired Assets free and clear of all Liens, except Permitted Liens.

(e)     To Seller’s knowledge, there is no contract, option or any other right of a third party binding upon Seller or the UK Subsidiary or which at any time in the future may become binding upon Seller or the UK Subsidiary, to sell, transfer, assign, pledge, charge, mortgage or in any other way dispose of or encumber any of the Assets, other than pursuant to the provisions of this Agreement.

3.2.      Financial Statements . Attached hereto as Schedule 3.2 are true and complete copies of certain financial records relating to the Business, consisting of the balance sheet and statements of income, retained earnings and changes in financial position for the fiscal year ended December 31, 2016, for the fiscal year ended December 31, 2017, for the fiscal year ended December 31, 2018 and for the three months ended March 31, 2019 (such date, the “Financial Statement Date”) (collectively, the “ Financial Statements ”). The Financial Statements are complete and correct and fairly present in all material respects the historical financial information of the Business indicated therein for the periods presented and calculated in accordance with generally accepted accounting principles, consistently applied. Except as set forth in Schedule 3.2 , all invoices reflected in the Financial Statements relate to the sale and/or license of lines of products and services which are currently included in the operation of the Business and are being transferred to Buyer pursuant to this Agreement. Except as set forth on Schedule 3.2 , throughout the periods covered by the Financial Statements, Seller has not made any change in accounting principles or practices or in the application thereof that affects the Financial Statements in any material respect. Since the Financial Statement Date and as of the Closing Date: (i) the Business has been carried on in its usual and ordinary course and Seller has not entered into any transaction (including any transfer or sale of assets) out of the usual and ordinary course of the Business; (ii) there has been no material adverse change to the Business; and (iii) Seller has not materially changed price lists, manner of pricing or billing.

3.3.      Accounts Receivable . The Accounts Receivable arose or will arise from bona fide sales and deliveries of goods or performances of services in the ordinary course of business. All Accounts Receivable are or will be currently due and payable or have already been paid, are collectible within 90 days of the Closing Date, and are not subject to any performance obligations by Seller prior to collection. To Seller’s knowledge, no account debtor has asserted any claim that an Account Receivable was not billed in the ordinary course consistent with past practice or is subject to any defense, counterclaim or setoff. Since January 1, 2018, Seller has collected the Accounts Receivable in the ordinary course of business consistent with historical practices and has not accelerated the collection of receivables or prepaid deposits.

3.4.      Title to Assets . Seller and the UK Subsidiary has good, exclusive and marketable title to, or holds by valid and existing lease or License, all of the Acquired Assets, free and clear of all Liens except Permitted Liens and the liens with respect to the Existing Indebtedness set forth on Schedule 3.4 .

3.5.     Properties . The Acquired Assets constitute all the properties, assets, contracts and rights whether tangible or intangible which are used or necessary to operate the Business in the manner presently conducted.

3.6.      Litigation; Orders . Except as disclosed in Schedule 3.6 , (i) there are no Actions pending, or to Seller’s knowledge, threatened in relation to the Business, the Acquired Assets or the Assumed Liabilities, (ii) there are no Orders against Seller in relation to the Business or to the Acquired Assets or Assumed Liabilities, and (iii) there are no events or conditions which would reasonably be expected to result in an Action against the Business, the Acquired Assets or the Assumed Liabilities, in each case that would, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect.

3.7.     Compliance with Law . Seller possesses all Licenses for the operation of the Business as conducted by Seller and the UK Subsidiary. All such Licenses are in full force and effect and neither Seller nor the UK Subsidiary has failed to adhere to the requirements of any such License. Seller and the UK Subsidiary have materially complied with all applicable Laws in connection with its operation of the Business or their ownership of the Acquired Assets. Neither Seller nor the UK Subsidiary has received notification of any asserted past or present failure to comply with any Laws and, to Seller’s knowledge, no proceeding with respect to any such violation is contemplated. Neither Seller nor, to Seller’s knowledge, any of the Assumed Employees, has made any payment of funds in connection with the Business prohibited by Law, and no funds have been set aside to be used in connection with the Business for any payment prohibited by Law. As of the Closing Date, the Business is operated in material compliance with all applicable Laws.

3.8.      Contracts .

(a)     Except as set forth on Schedule 3.8 , the Acquired Assets do not include any (i) employment or consulting agreement requiring payments of base compensation in excess of $50,000 per year, (ii) distributor or manufacturer’s representative Contract which is not terminable on six (6) months’ (or less) notice, (iii) joint venture or similar Contract or agreement, (iv) Contract involving an estimated total future payment or payments in excess of $30,000 which is terminable by the other party thereto upon a sale of the Acquired Assets or which requires such other party’s consent to such Contract’s assignment, (v) note, mortgage, indenture, other obligation, agreement or other instrument for or relating to any lending or borrowing (including assumed debt), (vi) Contracts for the purchase by Seller or, after giving effect to the Asset Purchase, Buyer of goods and/or services involving an estimated total future payment or payments in excess of $30,000, (vii) Contracts for the sale by Seller, or, after giving effect to the Asset Purchase, Buyer of goods and/or services involving annual payments in excess of $30,000, based on payments received by the Business under such Contracts during the most recent completed fiscal year, (viii) other Contracts entered into other than in the ordinary course of business, involving an estimated total future payment or payments in excess of $30,000, in each case, as to which Seller is the obligor, or (ix) any Contracts to which the UK Subsidiary is a party other than the Contracts listed in Schedule 2.1(a)(x) and Schedule 6.1B . From the date hereof until the Closing Date, Seller shall provide to Buyer any updates to Schedule 3.8 as soon as possible, but in any event shall deliver the final Schedule 3.8 to Buyer no later than two (2) business days in advance of the Closing Date (provided that any such update shall not in any way affect (i) Seller’s obligations to comply with the terms of Section 5.3 , (ii) the conditions set out in Section 8.1 , (iii) Seller’s obligations to comply with the terms of Section 10.2(a) , or (iv) Buyer’s rights under Sections 11(b) and (d) of this Agreement.)

(b)     Each of the Customer Contracts and the Acquired Contracts is in full force and effect and constitutes a legal, valid and binding agreement of Seller or the UK Subsidiary and, to the knowledge of Seller, of each other party thereto, enforceable in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws affecting creditors’ rights generally and by generally applicable equitable principles, whether considered in an action at law or in equity). Seller and the UK Subsidiary are not, and to Seller’s knowledge, no other party to any Customer Contract or Acquired Contract is in material breach thereof or material default thereunder, and there does not exist under any provision thereof, as of the date hereof, any event, fact or circumstance that, with the giving of notice or the lapse of time or both, would constitute such a breach or default, except for such breaches, defaults and events as to which requisite waivers or consents have been obtained. Since January 1, 2018, no party to any Customer Contract or Acquired Contract has given Seller or the UK Subsidiary written notice repudiating any provisions thereof or indicating an intention to exercise any right of cancellation, termination or non-renewal thereof. Seller and the UK Subsidiary have made no commitments to release or develop any updates, versions or releases of the Base Software except as may be expressly provided in the Customer Contracts.

(c)      UK Employees . To the Knowledge of Seller:

(i)    The UK Employees are all employed by the UK Subsidiary and work wholly or predominantly in the Business. Apart from the UK Employees there are no employees of the UK Subsidiary.

(ii)     The UK Subsidiary has performed all material employment obligations and duties owed to the UK Employees.

(iii)   The UK Subsidiary has not made any offer of employment or engagement to any person to work in the Business that has not yet been accepted, or that has been accepted but the employment or engagement has not yet started.

(iv)     No UK Employee has given or received notice to terminate their employment or engagement or objected to the transfer of their employment to UK Buyer, nor given any indication that they intend to resign or object to the transfer of their employment to UK Buyer.

(v)    All contracts of service or for services with any of the UK Employees are terminable by the UK Subsidiary at any time on six months' notice or less without compensation that exceeds any statutory payment due on termination of employment in accordance with applicable law.

(vi)    Other than in the ordinary course of business, the UK Subsidiary has not offered, promised or agreed to any future variation in any contract of employment of any of the UK Employees.

(vii)   No UK Employee will be entitled to receive any payment or benefit, nor will any UK Employee’s rights change, as a direct consequence of this Agreement.

(viii)  The UK Subsidiary has not proposed any profit-sharing scheme or any other scheme or arrangement under which the UK Employees are or would be entitled to participate in the profits of the Business or acquire shares in the UK Subsidiary.

(ix)    The UK Subsidiary is not engaged or involved in any dispute, claim or legal proceedings (whether arising under contract, common law, statute or in equity) with any of the UK Employees or any other person currently or previously employed by or engaged in the Business or their dependents.

(x)     No UK Employees are represented by a trade union, staff association or any other body representing workers and no such union, association or body is recognized by the UK Subsidiary for the purposes of collective bargaining.

(xi)   With respect to labor relations, the UK Subsidiary has not (nor has in the two years preceding the date of this Agreement been) involved in connection with the Business in any material industrial or trade dispute (official or unofficial) or negotiation with any trade union or other organization of employees or their representatives.

3.9.      Assumed Employees .

(a)     Except as set forth on Schedule 3.9 , all of the Assumed Employees are employed at will and none are covered by employment contracts, whether oral or written, other than customary understandings concerning employment, terminable at will without cost or other liability. No Assumed Employee is covered by any collective bargaining agreement and Seller is not a party to, or bound by, any collective bargaining or other labor agreement (written or oral), with respect to the Business or otherwise.

(b)    Except as set forth on Schedule 3.9 attached hereto, as of the Closing Date Seller will have paid in full to each Assumed Employee all compensation and other benefits owing to such employee in connection with such employee’s employment with Seller. All taxes due in connection with the employment of foreign residents in the United States have been fully paid. Schedule 3.9 also includes each Assumed Employee’s most recent salary with Seller (including particulars of all profit sharing, incentive and bonus arrangements applicable to the employee).

3.10.    Employee Benefits . There have been no non-exempt prohibited transactions (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Plan that could reasonably be expected to result in any liability to Buyer or its Affiliates or adversely affect the Acquired Assets in any material respect. No event has occurred and no condition exists with respect to any Employee Plan that could reasonably be expected to subject Buyer or its Affiliates to any material tax, fine, Lien, penalty or other liability imposed by ERISA (including without limitation Title IV of ERISA), the Code or other applicable Laws or adversely affect the Acquired Assets in any material respect. No claim, suit, litigation, proceeding, labor dispute, arbitral action, governmental audit, inquiry, criminal prosecution or investigation (other than routine claims for benefits) are pending or threatened, no facts or circumstances exist that are reasonably likely to give rise to any such actions and no material administrative investigation, audit or other administrative proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Authority is pending, threatened or in progress. Except as set forth on Schedule 3.10 , none of the Assumed Employees will become entitled to any bonus, retirement, severance, job security or similar benefit or any accelerated or enhanced payment or benefit of any kind (including without limitation any accelerated vesting of any stock option or other equity-based compensation award) as a result of the transactions contemplated by this Agreement. All of the Employee Plans for the Assumed Employees are listed in Schedule 3.10 , and have been duly registered where required by, and are in compliance in all material respects and in good standing under, all applicable legislation and all required employer contributions under any such plans have been made. Except as disclosed on Schedule 3.10 , Seller has never had any 401(a), 501(a) or 401(k) plans in respect of any of the Assumed Employees. Seller has withheld from any amount paid or credited by it to or for the account or benefit of any Assumed Employee, the amount of all taxes and other deductions required by any applicable laws to be withheld from any such amount and has remitted the same to the appropriate authority.

3.11.     Absence of Certain Changes . Except as disclosed on Schedule 3.11 , between January 1, 2019 and the Closing Date:

(a)     there has not been any damage, destruction or loss relating to the Acquired Assets, whether or not covered by insurance or any other event or condition that has, had or would have an impact on the Business or on the Acquired Assets valued in excess of thirty thousand Dollars ($30,000);

(b)     there have not been any claims asserted in writing against Seller or the UK Subsidiary relating to the Business or to the Acquired Assets not covered by applicable policies of liability insurance within the maximum insurable limits of such policies after payment of deductibles;

(c)     no Acquired Asset has been disposed of other than in the ordinary course of business consistent with past practice;

(d)     there has not been any creation or attachment, or notice thereof, of any Lien on any of the Acquired Assets;

(e)    there has not been any (i) assumption, incurrence or guarantee, except in the ordinary course of business consistent with past practice, of any obligation for borrowed money that would constitute, or increase Buyer’s or UK Buyer’s obligation respecting, an Assumed Liability, (ii) cancellation or compromise, except in the ordinary course of business consistent with past practice, or any debts owed to it that would constitute, or decrease the value of Buyer’s right respecting, an Acquired Asset, (iii) acceleration of providing prepaid services under Customer Contracts, or (iv) waiver or release of any rights relating to the Acquired Assets valued in excess of twenty thousand Dollars ($20,000) in the aggregate;

(f)     except in the ordinary course of business, no joint venture, partnership or other similar arrangement or form nor any other new material arrangement for the conduct of the business relating to the Acquired Assets has been entered into;

(g)     there has not been made in writing any Tax election (or change in or revocation of any Tax election) that relates to the Acquired Assets and that will have continuing effect on the Acquired Assets after the consummation of the transactions contemplated by this Agreement;

(h)    except as required by Law, Contract or the terms of an Employee Plan existing on the date hereof, there have been no (i) increases in the base compensation of, or entry into any new bonus or incentive agreement or arrangement not consistent with Seller’s policies respecting such agreements with, any of the Assumed Employees; (ii) payment or agreement to pay any pension, retirement allowance or other employee benefit to any Assumed Employee, whether past or present not otherwise required by Contract or under any Employee Plan in effect on the date hereof; (iii) entry into any express new employment, severance, consulting or other compensation agreement with any Assumed Employee; (iv) disposal of, exclusive licensure, abandonment, assignment or other action that would adversely affect in any material respects any Owned Intellectual Property; or (v) commitment to any pension, profit sharing, deferred compensation, group insurance, severance pay, retirement or other Employee Plan, fund or similar arrangement in addition to those in effect on the date hereof and intended exclusively for the Assumed Employees; provided , however , that any bonuses, severance payments or other incentives committed to in connection with or in contemplation of the Asset Purchase or a similar transaction as set forth on Schedule 3.11 shall be paid by Seller at or prior to Closing; and

(i)      Seller and the UK Subsidiary have not agreed to do any act that would render any of the preceding clauses inaccurate (other than the transactions specifically contemplated hereby).

3.12.     Intellectual Property .