SMTP, Inc. (Form: 8-K, Received: 08/15/2014 07:23:35)

EXHIBIT 2.1

ASSET PURCHASE AGREEMENT

between

SHARPSPRING, LLC

and

SMTP, INC.

dated as of

August 12, 2014

TABLE OF CONTENTS

		Page
ARTICLE I	DEFINITIONS	1

ARTICLE II	PURCHASE AND SALE	12
Section 2.01	Purchase and Sale of Assets	12
Section 2.02	Excluded Assets	13
Section 2.03	Assumed Liabilities	14
Section 2.04	Excluded Liabilities	14
Section 2.05	Purchase Price	14
Section 2.06	Earn-out	14
Section 2.07	Allocation of Purchase Price and Tax Treatment	18
Section 2.08	Withholding Tax	18
Section 2.09	Third Party Consents	19
Section 2.10	Post-closing Operation of Buyer Sub	19
Section 2.11	Right to Appoint a Buyer Director	20

ARTICLE III	CLOSING	20
Section 3.01	Closing	20
Section 3.02	Closing Deliverables	20

ARTICLE IV	REPRESENTATIONS AND WARRANTIES OF SELLER	22
Section 4.01	Organization and Qualification of Seller	23
Section 4.02	Authority of Seller	23
Section 4.03	No Conflicts; Consents	23
Section 4.04	Financial Statements	24
Section 4.05	No Undisclosed Liabilities	24
Section 4.06	Absence of Certain Changes, Events and Conditions	24
Section 4.07	Material Contracts	26
Section 4.08	Title to Purchased Assets	27
Section 4.09	Condition and Sufficiency of Assets	27

Section 4.10	Real Property	28
Section 4.11	Intellectual Property	29
Section 4.12	Reserved	31
Section 4.13	Accounts Receivable	31
Section 4.14	Customers and Suppliers	31
Section 4.15	Insurance	31
Section 4.16	Legal Proceedings; Governmental Orders	32
Section 4.17	Compliance With Laws; Permits	32
Section 4.18	Environmental Matters	32
Section 4.19	Employee Benefit Matters	34
Section 4.20	Employment Matters	35
Section 4.21	Taxes	36
Section 4.22	Brokers	37
Section 4.23	No Other Representations and Warranties	37

ARTICLE V	REPRESENTATIONS AND WARRANTIES OF BUYER	38
Section 5.01	Organization of Buyer	38
Section 5.02	Authority of Buyer	38
Section 5.03	No Conflicts; Consents	38
Section 5.04	Brokers	38
Section 5.05	Sufficiency of Funds	39
Section 5.06	Solvency	39
Section 5.07	Legal Proceedings	39
Section 5.08	Independent Investigation	39

ARTICLE VI	COVENANTS	39
Section 6.01	Conduct of Business Prior to the Closing	39
Section 6.02	Access to Information	40
Section 6.03	No Solicitation of Other Bids	40
Section 6.04	Notice of Certain Events	41
Section 6.05	Employees and Employee Benefits	42
Section 6.06	Confidentiality	43

Section 6.07	Non-competition; Non-solicitation	43
Section 6.08	Governmental Approvals and Consents	44
Section 6.09	Books and Records	44
Section 6.10	Closing Conditions	45
Section 6.11	Public Announcements	45
Section 6.12	Bulk Sales Laws	45
Section 6.13	Receivables	45
Section 6.14	Transfer Taxes	45
Section 6.15	Pro Ration of Certain Taxes/Refunds	46
Section 6.16	Earn-Out Stock Component	46
Section 6.17	Registration Rights	47
Section 6.18	Further Assurances	47
Section 6.19	Disclosure Schedules Update	47
Section 6.20	Additional Share Listing Application	47

ARTICLE VII	CONDITIONS TO CLOSING	48
Section 7.01	Conditions to Obligations of All Parties	48
Section 7.02	Conditions to Obligations of Buyer	48
Section 7.03	Conditions to Obligations of Seller	49

ARTICLE VIII	INDEMNIFICATION	50
Section 8.01	Survival	50
Section 8.02	Indemnification By Seller	51
Section 8.03	Indemnification By Buyer	51
Section 8.04	Certain Limitations	52
Section 8.05	Indemnification Procedures	53
Section 8.06	Payments	54
Section 8.07	Tax Treatment of Indemnification Payments	55
Section 8.08	Exclusive Remedies	55

ARTICLE IX	TERMINATION	55
Section 9.01	Termination	55
Section 9.02	Seller Termination Fee	56

iii

Section 9.03	Effect of Termination	56

ARTICLE X	MISCELLANEOUS	57
Section 10.01	Expenses	57
Section 10.02	Notices	57
Section 10.03	Interpretation	58
Section 10.04	Headings	58
Section 10.05	Severability	58
Section 10.06	Entire Agreement	58
Section 10.07	Successors and Assigns	59
Section 10.08	No Third-party Beneficiaries	59
Section 10.09	Amendment and Modification; Waiver	59
Section 10.10	Governing Law; Submission to Jurisdiction; Waiver of Jury Trial	59
Section 10.11	Specific Performance	60
Section 10.12	Counterparts	60

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this " Agreement "), dated as of August 12, 2014, is entered into between SharpSpring, LLC, a Delaware limited liability company (" Seller "), and SMTP, Inc., a Delaware corporation (" Buyer ").

RECITALS

WHEREAS , Seller is engaged in the business of creating, marketing and/or selling software that provides for marketing automation, call tracking, website traffic analytics and/or customer relationship management (the " Business "); and

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

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

ARTICLE I
Definitions

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

" 2013 Financial Statements " has the meaning set forth in Section 4.04 .

"2015 Revenue Run Rate" means the revenue amount equal to (a) the Achieved December 2015 Revenues multiplied by (b) twelve. Items that shall be excluded from the calculation of 2015 Revenue Run Rate are: (i) one-off revenue items such as the sale or long term lease/license of assets and (ii) booked revenues, gross bookings, or other credits not recognized as revenue under US GAAP.

" Achieved 2015 Revenues " means, for the period between January 1, 2015 and December 31, 2015, all recognized subscription revenues, license fees and other fees for the use of software, overage charges and service charges received by Buyer and Buyer Sub in the operation of the Business in conjunction with the normal sale of a subscription service, revenues from pay-as-you-go plans in which customers are subscribed in accordance with US GAAP, and other revenues received in the ordinary course of business; provided , that the following items that shall be excluded from the calculation of Achieved 2015 Revenues: (i) one-off revenue items derived from the sale or long term lease/license of assets and (ii) booked revenues, gross bookings, or other credits not recognized as revenue under US GAAP.

" Achieved December 2015 Revenues " means, for the period between December 1, 2015 and December 31, 2015, recognized subscription revenues, license fees and other fees for the use of software, overage charges and service charges received by Buyer and Buyer Sub in the operation of the Business in conjunction with the normal sale of a subscription service, revenues from pay-as-you-go plans in which customers are subscribed in accordance with US GAAP, and other revenues received in the ordinary course of business.

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

" Action " means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

" Acquisition Proposal " has the meaning set forth in Section 6.03(a) .

" Additional Share Listing Application " means any additional listing application or similar document required by NASDAQ relating to the shares of Common Stock or the transactions contemplated by this Agreement.

" Adjusted Selling Price " has the meaning set forth in Section 2.06(b).

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

" Agreement " has the meaning set forth in the preamble.

" Allocation " has the meaning set forth in Section 2.07 .

" Apportioned Obligations " has the meaning set forth in Section 6.15(a) .

" Assigned Contracts " has the meaning set forth in Section 2.01(d) .

" Assignment and Assumption Agreement " has the meaning set forth in Section 3.02(a)(ii).

" Assignment and Assumption of Lease " has the meaning set forth in Section 3.02(a)(iv).

" Assumed Liabilities " has the meaning set forth in Section 2.03 .

" Balance Sheet " has the meaning set forth in Section 4.04 .

" Balance Sheet Date " has the meaning set forth in Section 4.04 .

" Basket " has the meaning set forth in Section 8.04(a) .

" Benefit Plan " has the meaning set forth in Section 4.19(a) .

" Bill of Sale " has the meaning set forth in Section 3.02(a)(i) .

" Books and Records " has the meaning set forth in Section 2.01(l) .

" Business " has the meaning set forth in the recitals.

" Business Day " means any day except Saturday, Sunday or any other day on which commercial banks located in New York, NY are authorized or required by Law to be closed for business.

" Buyer " has the meaning set forth in the preamble.

" Buyer Closing Certificate " has the meaning set forth in Section 7.03(g) .

" Buyer Indemnitees " has the meaning set forth in Section 8.02 .

" Buyer Plans " has the meaning set forth in Section 6.05(c).

" Buyer's Accountants " means Rivers & Moorehead PLLC, or another firm as designated by Buyer.

" Buyer Sub " means SMTP SharpSpring Sub, Inc., a wholly owned subsidiary of the Buyer.

" Cap " has the meaning set forth in Section 8.04(a) .

" CERCLA " means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sec.Sec. 9601 et seq.

" Closing " has the meaning set forth in Section 3.01 .

" Closing Date " has the meaning set forth in Section 3.01 .

" Code " means the Internal Revenue Code of 1986, as amended.

" Commission " means the U.S. Securities and Exchange Commission.

" Common Stock " means the shares of common stock, par value $0.001 per share, of Buyer.

" Contracts " means all written contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, purchase orders and all other agreements, commitments and legally binding arrangements to which the Seller is a party or by which any of its assets are bound.

" Current Assets " means cash and cash equivalents, accounts receivable, inventory and prepaid expenses or other assets, but excluding (a) the portion of any prepaid expense of which Buyer will not receive the benefit following the Closing, (b) deferred Tax assets and (c) receivables from any of Seller's Affiliates, directors, employees, officers or stockholders and any of their respective Affiliates (such receivables, if any, to be repaid to the Seller prior to Closing), applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the 2013 Financial Statements.

" Current Leased Real Property " has the meaning set forth in Section 4.10(b) .

" Direct Claim " has the meaning set forth in Section 8.05(c) .

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

" Dollars or $ " means the lawful currency of the United States.

" Earn-Out Cash Component " has the meaning set forth in Section 2.06(a) .

" Earn-Out Calculation Objection Notice " has the meaning set forth in Section 2.06(d).

" Earn-Out Calculation Statement " has the meaning set forth in Section 2.06(d).

" Earn-Out Components " has the meaning set forth in Section 2.06(b).

" Earn-Out Stock Component " has the meaning set forth in Section 2.06(a).

" Employee Agreement " has the meaning set forth in Section 3.02(a)(v) .

" Employee Earn-Out Pool " has the meaning set forth in Section 2.06(e).

" Encumbrance " means any charge, claim, community property interest, pledge, condition, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind.

" Environmental Claim " means any Action, Governmental Order, lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings, investigations, cleanup, governmental response, removal or remediation, natural resources damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from: (a) the presence, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law or term or condition of any Environmental Permit.

" Environmental Law " means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials. The term "Environmental Law" includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sec.Sec. 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. Sec.Sec. 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. Sec.Sec. 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. Sec.Sec. 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sec.Sec. 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. Sec.Sec. 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sec.Sec. 651 et seq.

" Environmental Notice " means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged non-compliance with any Environmental Law or any term or condition of any Environmental Permit.

" Environmental Permit " means any Permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.

" ERISA " means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

" ERISA Affiliate " means all employers (whether or not incorporated) that would be treated together with the Seller or any of its Affiliates as a "single employer" within the meaning of Section 414 of the Code.

" Exchange Act " means the Securities Exchange Act of 1934 , as amended, and the rules and regulations promulgated thereunder.

" Excluded Assets " has the meaning set forth in Section 2.02 .

" Excluded Contracts " has the meaning set forth in Section 2.02(a) .

" Excluded Liabilities " has the meaning set forth in Section 2.04 .

" Financial Statements " has the meaning set forth in Section 4.04 .

" FICPR " means Florida Institute for the Commercialization of Public Research.

" FIRPTA Certificate " has the meaning set forth in Section 7.02(l) .

" Future Leased Real Property " has the meaning set forth in Section 4.10(b) .

" Government Contracts " has the meaning set forth in Section 4.07(a)(vii) .

" Governmental Authority " 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 arbitrator, court or tribunal of competent jurisdiction.

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

" Hazardous Materials " means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.

" Indemnified Party " has the meaning set forth in Section 8.05 .

" Indemnifying Party " has the meaning set forth in Section 8.05 .

" Independent Accountant " has the meaning set forth in Section 2.06(d) .

" Insurance Policies " has the meaning set forth in Section 4.15 .

" Intellectual Property " means all intellectual property and industrial property rights and assets, and all rights, interests and protections that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant to the Laws of any jurisdiction throughout the world, whether registered or unregistered, including any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing ( "Trademarks" ); (b) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, websites and related content, accounts with Twitter, Facebook and other social media companies and the content found thereon and related thereto, and URLs; (c) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring rights, and all registrations, applications for registration, and renewals for any of the foregoing ( "Copyrights" ); (d) inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential and proprietary information and all rights therein ( "Trade Secrets" ); (e) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models) ( "Patents" ); (f) software and firmware, including data files, source code, object code, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation ( "Software" ); (g) semiconductor chips and mask works; (h) royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of the foregoing; and (i) claims and causes of action, with respect to any of the foregoing, whether accruing before, on or after the date hereof, including all rights to and claims for damages, restitution and injunctive relief for infringement, dilution, misappropriation, violation, misuse, breach or default, with the right but no obligation to sue for such legal and equitable relief, and to collect, or otherwise recover, any such damages.

" Intellectual Property Agreements " means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants not to sue, permissions and other Contracts (including any right to receive or obligation to pay royalties or any other consideration), relating to any Intellectual Property that is used in or necessary for the conduct of the Business as currently conducted to which the Seller is a party, beneficiary or otherwise bound, including all Contracts under which Seller is a licensor or licensee.

" Intellectual Property Assets " means all Intellectual Property that is owned by Seller and used in or necessary for the conduct of the Business as currently conducted or proposed to be conducted.

" Intellectual Property Assignments " has the meaning set forth in Section 3.02(a)(iii) .

" Intellectual Property Registrations " means all Intellectual Property Assets that are subject to any issuance, registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered trademarks, domain names and copyrights, issued and reissued patents and pending applications for any of the foregoing.

" Interested Party " means any Person or group of Persons other than Buyer and its Affiliates that have expressed an interest, whether orally or in writing, to Seller (or any of its Affiliates) in consummating a Seller Acquisition Proposal at any time between the date hereof and sixty (60) days following the Outside Date.

" Interim Balance Sheet " has the meaning set forth in Section 4.04 .

" Interim Balance Sheet Date " has the meaning set forth in Section 4.04 .

" Interim Financial Statements " has the meaning set forth in Section 4.04 .

" Inventory " has the meaning set forth in Section 2.01(c) .

" Key Employees " has the meaning set forth in Section 2.10(d).

" Knowledge of Seller or Seller's Knowledge " or any other similar knowledge qualification, means the actual knowledge of those persons listed on Section 1.01 of the Disclosure Schedules.

" Law " means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

" Leased Real Property " has the meaning set forth in Section 4.10(b) .

" Leases " has the meaning set forth in Section 4.10(b) .

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

" Licensed Intellectual Property " means all Intellectual Property in which Seller holds any rights or interests granted by license from other Persons, including Seller's Affiliates, pursuant to any Intellectual Property Agreement.

" Losses " means losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however , that "Losses" shall not include punitive, consequential, special or indirect damages (including loss of revenue or diminution in value), except in the case of fraud, or willful misconduct, or to the extent actually awarded to a Governmental Authority or other third party.

" Material Adverse Effect " means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the Business, taken as a whole, or (b) the ability of Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that "Material Adverse Effect" shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) any changes in financial or securities markets in general; (iii) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (iv) any action required or permitted by this Agreement, or any action taken (or omitted to be taken) with the written consent of or at the written request of Buyer, except pursuant to Section 4.03 and Section 6.08 ; (v) any changes in applicable Laws or accounting rules, including US GAAP; (vi) the public announcement, pendency or completion of the transactions contemplated by this Agreement, including losses or threatened losses of employees, customers, suppliers, distributors or others having relationships with the Seller and the Business; (vii) conditions generally affecting the industries in which the Business operates or (viii) any natural or man-made disaster or acts of God, except in the case of clauses (i), (ii), (v) or (vii), such event or change which disproportionately affects the Seller when compared to other Persons operating in the industries in which the Seller operates.

" Material Contracts " has the meaning set forth in Section 4.07(a) .

" Material Customers " has the meaning set forth in Section 4.14(a) .

" Material Suppliers " has the meaning set forth in Section 4.14(b) .

" Multiemployer Plan " has the meaning set forth in Section 4.19(c) .

" NASDAQ " means the NASDAQ Stock Market LLC.

" Net Assets " means (a) those Purchased Assets that comprise Current Assets, plus (b) those Purchased Assets that constitute long-term liquid assets, if any, minus (c) all Assumed Liabilities, calculated in accordance with US GAAP, consistently applied.

" Non-U.S. Benefit Plan " has the meaning set forth in Section 4.19(a)

" Outside Date " has the meaning set forth in Section 9.01(b).

" Payout Percentage " has the meaning set forth in Section 2.06(b).

" Permits " means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained from Governmental Authorities.

" Permitted Encumbrances " has the meaning set forth in Section 4.08 .

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

" Pledge Agreement " has the meaning set forth in Section 3.02(b) .

" Post-Closing Tax Period " means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.

" Pre-Closing Tax Period " means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.

" Purchase Price " has the meaning set forth in Section 2.05 .

" Purchased Assets " has the meaning set forth in Section 2.01 .

" Qualified Benefit Plan " has the meaning set forth in Section 4.19(c) .

" Registrable Securities " means shares of Common Stock underlying the Earn-Out Stock Component. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by Buyer and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding; or (d) the Registrable Securities are freely saleable under Rule 144 without volume limitations.

" Release " means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).

" Remaining Balance " has the meaning set forth in Section 2.06(b).

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

" Restricted Period " has the meaning set forth in Section 6.07(a) .

" Review Period " has the meaning set forth in Section 2.06(d).

" Securities Act " means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

" Security Agreement " has the meaning set forth in Section 3.02(b) .

" Seller " has the meaning set forth in the preamble.

" Seller Acquisition Proposal " means any proposal or offer or expression communicated to Seller (or any officer or director of Seller) by an Interested Party that it is considering or may engage in, whether in one transaction or a series of related transactions, (a) any sale, lease, exchange, mortgage, pledge, license, transfer or other disposition, directly or indirectly, by merger, consolidation, sale of equity interests, share exchange, joint venture, business combination or otherwise, of any assets of the Seller or the Business representing fifty percent (50%) or more of the assets of the Seller (on a consolidated basis with any subsidiaries, if applicable), (b) any issue, sale or other disposition of (including by way of merger, consolidation, joint venture, business combination, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing fifty percent (50%) or more of the voting power of the Seller or (c) any recapitalization, restructuring, liquidation, dissolution or other similar type of transaction with respect to the Seller in which an Interested Party shall acquire beneficial ownership of fifty percent (50%) or more of the outstanding shares of any class of voting securities of the Seller; provided , however , that the term "Seller Acquisition Proposal" shall not include the transactions contemplated by this Agreement.

" Seller Closing Certificate " has the meaning set forth in Section 7.02(i) .

" Seller Indemnitees " has the meaning set forth in Section 8.03 .

" Seller's Accountants " means James Moore & Company, P.L.

" Specified Sales Employees " means those employees of Seller set forth on Section 6.05(a) who, immediately prior to the Closing, perform sales services for Seller.

" Tangible Personal Property " has the meaning set forth in Section 2.01(f) .

" Taxes " means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, or other taxes, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

" Tax Return " means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

" Territory " means the entire world based upon the fact that Buyer currently offers its services in approximately 130 countries and plans to launch services utilizing the Purchased Assets on a global basis.

" Tax Treatment " has the meaning set forth in Section 2.07 .

" Third Party Claim " has the meaning set forth in Section 8.05(a) .

" Transaction Documents " means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement, Intellectual Property Assignments, Assignment and Assumption of Leases, Security Agreement, Pledge Agreement, the Employee Agreements and the other agreements, instruments and documents required to be delivered at the Closing.

" Union " has the meaning set forth in Section 4.20(b) .

" US GAAP " means United States generally accepted accounting principles in effect at Closing.

ARTICLE II
Purchase and Sale

Section 2.01 Purchase and Sale of Assets . Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell to Buyer, and shall, upon Buyer's election, assign, transfer, convey and deliver to Buyer Sub, and Buyer shall purchase from Seller, free and clear of any Encumbrances other than Permitted Encumbrances, all of Seller's right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively, the " Purchased Assets "), including, without limitation, the following:

(a) cash and cash equivalents;

(b) all accounts or notes receivable held by Seller, and any security, claim, remedy or other right related to any of the foregoing, whether or not billed (" Accounts Receivable ");

(c) all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (" Inventory ");

(d) all Contracts, including Intellectual Property Agreements, of the Seller or relating to the Business, other than Excluded Contracts (the " Assigned Contracts ");

(e) all Intellectual Property Assets;

(f) all furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal property (the " Tangible Personal Property ");

(g) all Leased Real Property;

(h) all Permits, including Environmental Permits, which are held by Seller and required for the conduct of the Business as currently conducted or for the ownership and use of the Purchased Assets (but only to the extent such Permits and Environmental Permits may be transferred under applicable Law), including, without limitation, those listed on Section 4.17(b) and Section 4.18(b) of the Disclosure Schedules;

(i) all rights to any Actions of any nature available to or being pursued by Seller to the extent related to the Business, the Purchased Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;

(j) all prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees;

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

(l) originals, or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial, accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Intellectual Property Assets and the Intellectual Property Agreements (" Books and Records "); and

(m) all goodwill associated with the Purchased Assets.

Section 2.02 Excluded Assets . Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively, the " Excluded Assets "):

(a) Those Contracts listed on Schedule 2.02(a) of the Disclosure Schedules (the " Excluded Contracts ");

(b) the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller;

(d) the assets, properties and rights specifically set forth on Section 2.02(d) of the Disclosure Schedules;

(e) the Seller's rights under or pursuant to this Agreement and the other Transaction Documents;

(f) all equity interests in Seller, including all shares of capital stock, membership interests or partnership interests;

(g) all claims for refund of Taxes relating to Pre-Closing Tax Periods, including claims relating to the Purchased Assets;

(h) any directors and officers liability insurance policies of Seller and any claims thereunder and the rights of Seller thereunder and any proceeds thereof;

(i) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities on or prior to the Closing Date;

(j) all employee-related or employee benefit-related files or records, and any other books and records which Seller is prohibited from disclosing or transferring to Buyer under applicable Law and is required by applicable Law to retain; and

(k) all documents and other materials covered by attorney-client privilege or another similar privilege relating to the Transaction Documents.

Section 2.03 Assumed Liabilities . Subject to the terms and conditions set forth herein, Buyer shall assume and agree to pay, perform and discharge all Liabilities of Seller arising prior to, at or after the Closing Date, other than the Excluded Liabilities (collectively, the " Assumed Liabilities "), including, without limitation:

(a) all trade accounts payable of Seller to third parties in connection with the Business that remain unpaid;

(b) all Liabilities in respect of the Assigned Contracts;

(d) all liabilities and obligations for (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for the portion of any taxable period ending after the Closing Date and (ii) Taxes for which Buyer or Buyer Sub is liable pursuant to Section 6.14 ; and

(e) all other liabilities and obligations arising out of or relating to Buyer's or Buyer Sub's ownership or operation of the Business and the Purchased Assets on or after the Closing.

Section 2.04 Excluded Liabilities . Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, neither Buyer nor Buyer Sub shall assume, and neither Buyer nor Buyer Sub shall be responsible to pay, perform or discharge those liabilities and obligations (a) for Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for the portion of any taxable period ending prior to the Closing Date, (b) relating to any Excluded Assets, (c) to Affiliates of the Seller (including, without limitation, time off with pay benefits, and other Seller benefit plan benefits relating to pension, profit sharing, change of control bonuses, option plan replacement bonuses, termination and severance benefits or similar payments, if any), (d) relating to Seller's portion of the Taxes payable pursuant to Section 6.14 (collectively, the " Excluded Liabilities ").

Section 2.05 Purchase Price . The aggregate purchase price for the Purchased Assets shall be $15,000,000 (the " Purchase Price "), plus the assumption of Assumed Liabilities. The Purchase Price is payable as follows: $5,000,000 in cash payable by Buyer to Seller at Closing, subject to adjustment pursuant to Section 3.02(b)(i) , plus; (b) up to $6,000,000 of the Earn-Out Cash Component, plus; (c) up to $4,000,000 of the Earn-Out Stock Component .

Section 2.06 Earn-out .

(a) Earn-out Payments. At such times as provided in Section 2.06(e) , Buyer shall pay to Seller $6,000,000 in cash (the " Earn-Out Cash Component "), subject to adjustment based on the post-Closing revenue achievement as described in Section 2.06(b) , and the holdback provisions as described in Section 2.06(b) ; and $4,000,000 in shares of Common Stock (the " Earn-Out Stock Component "), subject to adjustment based on the post-Closing revenue achievement as described in Section 2.06(b) , and holdback provisions as described in Section 2.06(b) , the number of shares of Common Stock of which shall be determined by dividing the Earn-Out Stock Component (as may be adjusted) by the average market closing price of the Common Stock on NASDAQ for the twenty (20) trading days immediately prior to issuance of the Earn-Out Stock Component, but in no event more than 120% of the average market closing price of the Common Stock for the preceding six (6) months.

(b) Procedures Applicable to Determination of the Earn-out Payments. The adjustments to the Earn-Out Cash Component and the Earn-Out Stock Component (collectively, the " Earn-Out Components ") shall be made based on Buyer's audit of fiscal revenues from the Purchased Assets in accordance with the 2015 Revenue Run Rate or the Achieved 2015 Revenues, as applicable. The Earn-Out Cash Component and the Earn-Out Stock Component shall be paid in full if (A) the 2015 Revenue Run Rate equals or exceeds $5,000,000 or (B) Buyer delivers Seller written notice of its intent to pay in full the Earn-Out Cash Component and the Earn-Out Stock Component, with such notice being irrevocable and provided at Buyer's sole discretion. If none of the conditions described in subsections (A) and (B) above is met, the amount of the Earn-Out Components to be paid will be determined by the following procedure:

(i) a percentage payout (the " Payout Percentage ") will be equal to:

(Achieved 2015 Revenues / $3,263,000) ^1.25 .

The Payout Percentage will be rounded up or down to the nearest two decimal places (i.e. 93.4567% = 93.46%) and will not exceed 100%.

The total Purchase Price to be provided to Seller (the " Adjusted Selling Price ") will be determined by multiplying the Payout Percentage by $15,000,000.

(ii) The remaining balance to be paid to Seller (the " Remaining Balance ") will be calculated by subtracting the $5,000,000 Cash Component paid at Closing, and subtracting any amounts payable by Seller to Buyer pursuant and subject to Section 8.04 and Section 8.06 .

(iii) Subject to Section 2.06(d) and (e) , the Earn-Out Cash Component and the Earn-Out Stock Component (each in their proportion of the Remaining Balance (i.e., 60% Cash and 40% Stock)) shall be issued within five (5) Business Days of the completion of the audit of Buyer Sub's 2015 financial statements, together with the audit of the Achieved 2015 Revenues and the 2015 Revenue Run Rate, such audit to be completed no later than March 31, 2016.

(c) Achieved 2015 Revenues and the 2015 Revenue Run Rate shall be determined by Buyer's auditor in accordance with US GAAP as set forth herein.

(d) Seller shall have 60 days after receipt (the " Review Period ") of the written calculation of the Earn-Out Components and the 2015 Revenue Run Rate (" Earn-Out Calculation Statement ") to review the Earn-Out Calculation Statement and the calculations set forth therein. During the Review Period, Seller and its accountants/representatives shall have the right to inspect Buyer and Buyer Sub's books and records during normal business hours at Buyer and Buyer Sub's offices, upon reasonable prior notice and solely for purposes related to the determinations of the 2015 Revenue Run Rate, Achieved 2015 Revenues and the resulting Earn-Out Components. Prior to the expiration of the Review Period, Seller may object to the calculations set forth in the Earn-Out Calculation Statement by delivering a written notice of objection (an " Earn-Out Calculation Objection Notice ") to Buyer. Any Earn-Out Calculation Objection Notice shall specify the items in the applicable calculations disputed by Seller and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Earn-Out Calculation Objection Notice to Buyer prior to the expiration of the Review Period, then the calculations set forth in the Earn-Out Calculation Statement shall be final and binding on the parties hereto. If Seller timely delivers an Earn-Out Calculation Objection Notice, Buyer and Seller shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the 2015 Revenue Run Rate, the Achieved 2015 Revenues and the payment of the Earn-Out Components. If Buyer and Seller are unable to reach agreement within 30 days after such an Earn-Out Calculation Objection Notice has been given, all unresolved disputed items shall be promptly referred to an impartial nationally recognized firm of independent certified public accountants, other than Seller's Accountants or Buyer's Accountants, appointed by mutual agreement of Buyer and Seller (the " Independent Accountant "). The Independent Accountant shall be directed to render a written report on the unresolved disputed items with respect to the applicable calculations as promptly as practicable and to resolve only those unresolved disputed items set forth in the Earn-Out Calculation Objection Notice. If unresolved disputed items are submitted to the Independent Accountant, Buyer and Seller shall each furnish to the Independent Accountant such work papers, schedules and other documents and information relating to the unresolved disputed items as the Independent Accountant may reasonably request. The Independent Accountant shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by Buyer and Seller, and not by independent review. The resolution of the dispute and the calculation of the 2015 Revenue Run Rate and the Achieved 2015 Revenues that is the subject of the applicable Earn-Out Calculation Objection Notice by the Independent Accountant shall be final and binding on the parties hereto. The fees and expenses of the Independent Accountant shall be borne by Seller and Buyer in proportion to the amounts by which their respective calculations of Achieved 2015 Revenues or the 2015 Revenue Run Rate differ from Achieved 2015 Revenues or the 2015 Revenue Run Rate as finally determined by the Independent Accountant.

(e) Timing and Method of Payment of Earn-Out Payment.

(i) Subject to Section 2.06(d) , any payment of the Earn-Out Cash Component that Buyer is required to pay, and any issuance of shares of Common Stock in payment of the Earn-Out Stock Component pursuant to Section 2.06(a) hereof, shall be paid in full or issued, as applicable, no later than three Business Days following the date upon which the determination of Earn-Out Calculation Statement becomes final and binding upon the parties as provided in Section 2.06(d) (including any final resolution of any dispute raised by Seller in an Earn-Out Calculation Objection Notice); provided , however , in the event the Common Stock ceases to be listed on NASDAQ as of such payment date, the Earn-Out Stock Component payable shall be paid in cash; provided , further , in the event Buyer's stockholders' approval is required under applicable Law and/or NASDAQ approvals are required under applicable NASDAQ listing requirements (or similar regulations) to issue the Earn-Out Stock Component and are not (or can not) be obtained in accordance therewith prior to the required issuance of such Earn-Out Stock Component, the Earn-Out Stock Component payable shall be paid to Seller in cash. Buyer shall pay to Seller the applicable Earn-Out Cash Component in cash by wire transfer of immediately available funds to an account of Seller designated in writing by Seller to Buyer on the Closing Date. Buyer shall deliver to Seller shares of Common Stock in consideration of the applicable Earn-Out Stock Component in the manner designated in writing by Seller to Buyer on the Closing Date. Notwithstanding anything to the contrary set forth herein, to the extent any Earn-Out Stock Component is payable, Seller shall distribute the entire Earn-Out Stock Component to its members; provided , however , that Seller shall only distribute any Earn-Out Stock Components to the Knowledge persons listed on Section 1.01 of the Disclosure Schedules (and any designees obtaining Common Stock); if such Persons have executed and delivered a lock up agreement in form and substance reasonably acceptable to the parties hereto prior to the distribution of such Earn-Out Stock Component to such Knowledge persons.

(ii) In the event that an amount equal to or greater than 95% of the Earn-Out Cash Component is payable to Seller pursuant to Section 2.06(d) , Buyer shall distribute an amount of cash not to exceed $375,000 (the " Employee Earn-Out Pool ") to those individuals set forth on Section 2.06(e) of the Disclosure Schedules, and not to Seller, in proportion to the percentages set forth in such schedule, subject to applicable withholding. Buyer shall only make distributions from the Employee Earn-Out Pool to those individuals that are employed (x) by, and in good standing with, Buyer or Buyer Sub on the date such distribution is to be made and (y) to maintain the Purchased Assets or operate the Business. If any such individual is not employed by, and in good standing with, Buyer or Buyer Sub on the date such distribution is to be made, Buyer shall distribute any such individual's proportional amount of the Employee Earn-Out Pool to Seller in accordance with Section 2.06(e) .

(iii) In the event that the Buyer or Buyer Sub (as owned by the Buyer) enters into a sale of all or substantially all of the assets of the Business (a " Fundamental Transaction ") to an independent third party and the obligations under this Section 2.06 are not assumed by the purchaser(s) thereof, the Earn-Out Components shall accelerate and Buyer shall pay the entire unpaid portion of the Earn-Out Cash Component and the Earn-Out Stock Component to Seller prior to or contemporaneously with the consummation of any such Fundamental Transaction; provided , that the Earn-Out Stock Component shall be paid in cash.

(f) Security. The parties hereto understand and agree that (i) to secure its payment of the Earn-Out Components, at Closing, Buyer shall cause Buyer Sub to grant Seller a first priority security interest in the Buyer Sub and the Purchased Assets. Without limiting Seller's other rights and remedies, and subject to Section 2.06(h) , if Buyer fails in whole or part to pay and issue the Earn Out Components when due, Seller may assess and Buyer will pay late fees at the rate of 1.5% per month or part thereof that the failure continues, and Buyer will reimburse Seller for all attorneys' fees, court costs and other costs and expenses Seller reasonably incurs to enforce its rights to the Earn Out Components. Upon payment of the Earn-out Cash Component and Earn-Out Stock Component in accordance with this Section 2.06 , Seller authorizes the termination and/or release of all of its security interests under the applicable UCC-1 financing statement(s) as set forth in the Pledge Agreement and the Security Agreement without any further action on the part of Seller, Buyer or Buyer Sub.

(g) Adjustments for Tax Purposes. Any payments made pursuant to Section 2.06 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.

Section 2.07 Allocation of Purchase Price and Tax Treatment . Seller and Buyer agree that the Purchase Price and the Assumed Liabilities (plus other relevant items) shall be allocated (the "Allocation") among the Purchased Assets and the covenants contained in Section 6.07 hereof for all purposes (including Tax and financial accounting) in accordance with the appraisal of the Purchased Assets obtained from a nationally recognized valuation firm, selected by Buyer and acceptable to Seller, by Buyer within 90 days following the Closing Date, provided that (for the avoidance of doubt, notwithstanding anything to the contrary in the appraisal) $25,000 shall be allocated to the covenants set forth in Section 6.07 hereof. Upon receipt, Buyer shall deliver such appraisal and a draft Allocation to Seller within 90 days following the Closing Date. If Seller notifies Buyer in writing that Seller objects to one or more items reflected in such appraisal or the draft Allocation, Seller and Buyer shall negotiate in good faith to resolve such dispute; provided, however , that if Seller and Buyer are unable to resolve any such dispute within 120 days following the Closing Date, such dispute shall be resolved by the Independent Accountant. The fees and expenses of such accounting firm shall be borne equally by Seller and Buyer. Buyer and Seller hereby agree that the transactions contemplated pursuant to this Agreement represent a sale and purchase of the Purchased Assets by Seller to Buyer, and the transfer of the Purchased Assets to Buyer Sub by Seller is at the direction of and for the convenience of Buyer, and as such, shall be treated as a transfer to Buyer followed by Buyer's contribution of the Purchased Assets to Buyer Sub (the " Tax Treatment "). Buyer and Seller shall file all Tax Returns (including amended returns and claims for refund) and information reports in a manner consistent with the Allocation Schedule and the Tax Treatment. Any adjustments to the Purchase Price pursuant to Section 2.06 herein shall be allocated in a manner consistent with the Allocation Schedule.

Section 2.08 Withholding Tax . Buyer shall be entitled to deduct and withhold from the Purchase Price all Taxes that Buyer may be required to deduct and withhold under any provision of Tax Law; provided, however, that if the Buyer or any of its respective Affiliates, or anyone acting on their behalf, believes that any withholding is due with respect to any payment made by it, it shall give written notice to the payee prior to the making of such payment, and it shall provide such payee a reasonable opportunity to provide any applicable certificates, forms or documentation that would eliminate the requirement to withhold with respect to such payment under the Code or any applicable Tax law. All such withheld amounts shall be treated as delivered to Seller hereunder only to the extent actually remitted to the applicable Governmental Authority.

Section 2.09 Third Party Consents . To the extent that Seller's rights under any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset, may not be assigned to Buyer or Buyer Sub without the consent of another Person which has not been obtained, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Seller and Buyer shall, and Buyer shall cause Buyer Sub to, use their respective commercially reasonable efforts to obtain any such required consent(s); provided, however, that neither Seller, Buyer nor Buyer Sub shall be required to pay any consideration therefor. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer's or Buyer Sub's rights under the Purchased Asset in question so that Buyer or Buyer Sub would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and the Purchased Asset and at Buyer's expense, shall act from the Closing to April 30, 2016 as Buyer's or Buyer Sub's agent in order to obtain for it the benefits thereunder and shall use commercially reasonable efforts to cooperate with Buyer or Buyer Sub in any other reasonable arrangement designed to provide such benefits to Buyer or Buyer Sub. Notwithstanding any provision in this Section 2.09 to the contrary, Buyer or Buyer Sub shall not be deemed to have waived its rights under Section 7.02(d) hereof unless and until Buyer or Buyer Sub either provides written waivers thereof or elects to proceed to consummate the transactions contemplated by this Agreement at Closing. The Seller will promptly pay to Buyer when received all monies received by the Seller under any Contract that constitutes a Purchased Asset, and Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts which constitute Assumed Liabilities hereunder.

Section 2.10 Post-closing Operation of Buyer Sub . Subject to the terms of this Agreement and the other Transaction Documents, subsequent to the Closing and until December 31, 2015, or earlier if mutually agreed, Buyer will:

(a) maintain Buyer Sub as an identifiable operating entity with identifiable bookkeeping;

(b) cause Buyer Sub to utilize the Purchased Assets in order to conduct the Business and cause Buyer Sub to apply all of its revenues derived from the Purchased Assets to the operation of the Business;

(c) provide Buyer Sub within five (5) Business Days of Closing with a short-term loan of $300,000 to fund the operation of the Business, whereby the entire amount shall be repaid to Buyer by Buyer Sub without interest (unless otherwise required to be imputed) on, but not prior to, December 31, 2015;

(d) not cause those individuals listed on Section 2.10(d) of the Disclosure Schedules (collectively, " Key Employees ") and all other Hired Employees (including the Specified Sales Employees) maintaining the Purchased Assets or operating the Business to devote less than 90% of their working time to operating the Business as conducted within Buyer or Buyer Sub;

(e) own all of the equity interests or ownership interests in Buyer Sub and cause the Buyer Sub to own the Purchased Assets or other assets utilized to operate the Business;

(f) refrain from interfering with the conduct of the Business of Buyer Sub in a manner that would materially adversely affect the 2015 Revenue Run Rate or the Achieved 2015 Revenues or materially reduce the Earn-Out Components, including without limitation, requiring Buyer Sub to change its budget, branding, pricing model, business model or other material aspects of the Business;

(g) refrain from transferring cash from Buyer Sub to Buyer; and

(h) other than as permitted under, and pursuant to the terms and conditions set forth in Section 2.06(e)(iii) , refrain from engaging Buyer Sub directly in any material transaction.

For the avoidance of doubt Buyer shall not, and shall cause Buyer Sub not to, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing any payment of the Earn-Out Components under this Agreement.

Section 2.11 Right to Appoint a Buyer Director . If Seller, following issuance of the Earn-Out Share Component, holds 20% or more of Buyer's outstanding shares, subject to applicable shareholder approval, Seller shall be entitled to appoint one director to the Buyer's Board of Directors (the " Seller Director "). Buyer shall use its reasonable best efforts to cause the rights granted to Seller with respect to the nomination and appointment of the Seller Director to inure to the benefit of Seller. Such efforts on the part of Buyer shall include, but not be limited to, the nomination and appointment of the Seller Director. Buyer shall enter into a separate indemnification agreement upon the election or appointment of such Seller Director, in the Buyer's customary form, or if no such form is in use by Buyer, then an indemnification agreement in a form reasonably satisfactory to Seller.

ARTICLE III
Closing

Section 3.01 Closing . Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the " Closing ") shall take place at the offices of SMTP, Inc., in Nashua, NH, at 11 a.m., New York, NY time, no later than 5 Business Days after all of the conditions to Closing set forth in Article VII are either satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), or at such other time, date or place as Seller and Buyer may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to as the " Closing Date ".

Section 3.02 Closing Deliverables .

(a) At the Closing, Seller shall deliver to Buyer the following:

(i) a bill of sale in the form of Exhibit A hereto (the " Bill of Sale ") and duly executed by Seller, transferring the tangible personal property included in the Purchased Assets to Buyer or Buyer Sub;

(ii) an assignment and assumption agreement in the form of Exhibit B hereto (the " Assignment and Assumption Agreement ") and duly executed by Seller, effecting the assignment to and assumption by Buyer or Buyer Sub of the Purchased Assets and the Assumed Liabilities;

(iii) an intellectual property assignment agreement in the form of Exhibit C hereto (the " Intellectual Property Assignments ") and duly executed by Seller, transferring all of Seller's right, title and interest in and to the Intellectual Property Assets to Buyer or Buyer Sub;

(iv) with respect to each Lease, an Assignment and Assumption of Lease in form and substance satisfactory to Buyer (each, an " Assignment and Assumption of Lease ") and duly executed by Seller;

(v) with respect to each Key Employee, (A) employee agreements (each an " Employee Agreement ") and (B) restrictive covenant agreements, duly executed by each Key Employee;

(vi) with respect to any liens (other than Permitted Encumbrances) on the Purchased Assets, a written termination of any such liens on the Purchased Assets;

(vii) the Seller Closing Certificate;

(viii) the FIRPTA Certificate;

(ix) the certificates of the Secretary or Assistant Secretary of Seller required by Section 7.02(j) and Section 7.02(k) ;

(x) pay-off letters and cancelled promissory notes regarding all indebtedness to be repaid at Closing, each in form and substance reasonably satisfactory to Buyer;

(xi) all of the third-party consents and approvals set forth on Section 3.2(c) of the Disclosure Schedule, in form and substance reasonably satisfactory to Buyer;

(xii) draft certificate of amendment to be filed within five (5) Business Days following the Closing Date with the Secretary of State of the State of Delaware (and each other applicable Secretary of State of such States in which Seller is qualified to do business) amending the name of the Seller so that it does not include the phrase "Sharp Spring";

(xiii) a statement showing in reasonable detail Seller's good faith calculation of the Net Assets of the Seller as of Closing; and

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

(b) At the Closing, Buyer shall deliver to Seller the following:

(i) $5,000,000 of the Purchase Price (the "$5,000,000 Cash Component ") by wire transfer of immediately available funds to an account of Seller designated in writing by Seller to Buyer on or prior to the Closing Date; provided, that if Net Assets of the Seller on the Closing Date are less than $0.00, the $5,000,000 Cash Component will be decreased by an amount equal to the actual amount of the Seller's Net Assets that are below $0.00 on the Closing Date, on a dollar-for-dollar basis, except that the total outstanding balance due on the Seller's FICPR loan (and any other indebtedness under the payoff letters delivered pursuant to Section 3.02(a)(x) ) will be paid by the Seller out of the $5,000,000 Cash Component at Closing, and shall be excluded from the calculation of Net Assets; provided further, that the $5,000,000 Cash Component will be reduced by the actual fees paid for by Buyer for the audit contemplated by Section 7.02(m) ; and

(ii) the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer or Buyer Sub at or prior to the Closing pursuant to Section 7.03 of this Agreement.

(iii) the Assignment and Assumption Agreement duly executed by Buyer or Buyer Sub;

(iv) with respect to each Lease, an Assignment and Assumption of Lease duly executed by Buyer or Buyer Sub;

(v) a security agreement in the form of Exhibit D hereto (the " Security Agreement ") and duly executed by Buyer Sub, granting a security interest in the Purchased Assets;

(vi) a pledge agreement in the form of Exhibit E hereto (the " Pledge Agreement ") and duly executed by Buyer, granting a security interest to Seller in one hundred percent (100%) of the capital stock of Buyer Sub owned by Buyer and any other ownership or voting interests in Buyer Sub held from time to time;

(vii) the Buyer Closing Certificate;

(viii) the certificates of the Secretary or Assistant Secretary of Buyer required by Section 7.03(h) and Section 7.03(i) ;

(ix) with respect to each Key Employee, an Employee Agreement duly executed by Buyer or Buyer Sub; and

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

ARTICLE IV
Representations and warranties of seller

Except as set forth in the correspondingly numbered Section of the Disclosure Schedules (which disclosures shall delineate the section or subsection to which they apply but shall also qualify such other sections or subsections in this Article IV to the extent that it is reasonably apparent (without a specific cross-reference) on its face from a reading of the disclosure items that such disclosure is applicable to such other section or subsection), Seller represents and warrants to Buyer that the statements contained in this Article IV are true and correct as of the date hereof.

Section 4.01 Organization and Qualification of Seller . Seller is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all necessary corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on the Business as currently conducted. Section 4.01 of the Disclosure Schedules sets forth each jurisdiction in which Seller is licensed or qualified to do business, and Seller is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership of the Purchased Assets or the operation of the Business as currently conducted makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing would not have a Material Adverse Effect.

Section 4.02 Authority of Seller . Seller has all necessary corporate power and authority to enter into this Agreement and the other Transaction Documents to which Seller is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of this Agreement and any other Transaction Document to which Seller is a party, the performance by Seller of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Seller. This Agreement has been duly executed and delivered by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). When each other Transaction Document to which Seller is or will be a party has been duly executed and delivered by Seller (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Seller enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 4.03 No Conflicts; Consents . The execution, delivery and performance by Seller of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of formation, operating agreement or other organizational documents of Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Seller, the Business or the Purchased Assets; (c) except as set forth in Section 4.03 of the Disclosure Schedules, require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract or Permit to which Seller is a party or by which Seller or the Business is bound or to which any of the Purchased Assets are subject (including any Assigned Contract); or (d) result in the creation or imposition of any Encumbrance other than Permitted Encumbrances on the Purchased Assets. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Seller in connection with the execution and delivery of this Agreement or any of the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

Section 4.04 Financial Statements . Complete copies of the financial statements consisting of the balance sheet of the Company at December 31, 2013 the related statements of income and retained earnings, stockholders' equity and cash flow for the year then ended (the " 2013 Financial Statements "), and unaudited financial statements consisting of the balance sheet of the Company as at June 30, 2014 and the related statements of income and retained earnings, stockholders' equity and cash flow for the six month period then ended (the " Interim Financial Statements " and together with the 2013 Financial Statements, the " Financial Statements ") have been delivered to Buyer. The Financial Statements are based on the books and records of the Business, and fairly present in all material respects the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business for the periods indicated. The balance sheet of the Business as of December 31, 2013 is referred to herein as the " Balance Sheet " and the date thereof as the " Balance Sheet Date " and the balance sheet of the Business as of June 30, 2014 is referred to herein as the " Interim Balance Sheet " and the date thereof as the " Interim Balance Sheet Date ".

Section 4.05 No Undisclosed Liabilities . Seller has no liability (whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due), except for: (a) those liabilities set forth in the Balance Sheet and (b) those liabilities which have arisen after the date of the Financial Statements in the ordinary course of business that are set forth on Section 4.05 of the Disclosure Schedules.

Section 4.06 Absence of Certain Changes, Events and Conditions . Except as expressly contemplated by this Agreement or as set forth on Section 4.0 6 of the Disclosure Schedules, from the Interim Balance Sheet Date to the date of this Agreement, Seller has operated the Business in the ordinary course of business in all material respects and there has not been, with respect to the Business, any:

(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(b) material change in any method of accounting or accounting practice for the Business, except as required by US GAAP or as disclosed in the notes to the Financial Statements;

(c) material change in cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;

(d) incurrence, assumption or guarantee of any indebtedness for borrowed money in connection with the Business except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;

(e) transfer, assignment, sale or other disposition of any of the Purchased Assets shown or reflected in the Balance Sheet, except for the sale of Inventory in the ordinary course of business;

(f) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets;

(g) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Agreements;

(h) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;

(i) acceleration, termination, material modification to or cancellation of any Assigned Contract or Permit;

(j) material capital expenditures which would constitute an Assumed Liability;

(k) imposition of any Encumbrance other than any Permitted Encumbrances upon any of the Purchased Assets;

(l) (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee of the Business or any termination of any employees, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business, except, in the case of clauses (i), (ii) and (iii), as provided, in Seller's management's discretion, to employees to compensate such employees for lost income opportunities resulting from the consummation of the transactions contemplated by this Agreement;

(m) hiring or promoting any person as or to (as the case may be) an officer except to fill a vacancy in the ordinary course of business; provided , however , that the hiring of salespeople to continue to grow the business and the hiring of technical resources to assist with product development is understood to be in the ordinary course of business;

(n) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;

(o) purchase, lease or other acquisition of the right to own, use or lease any property or assets, except for purchases of Inventory or supplies in the ordinary course of business consistent with past practice; or

(p) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.

Section 4.07 Material Contracts .

(a) Section 4.07(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected or (y) to which Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts, together with all Contracts concerning the occupancy, management or operation of any Leased Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 4.10(a) of the Disclosure Schedules and all Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure Schedules, being " Material Contracts "):

(i) all Contracts involving aggregate consideration in excess of $25,000 and which, in each case, cannot be cancelled without penalty or without more than 90 days' notice;

(ii) all Contracts that require Seller to purchase or sell a stated portion of the requirements or outputs of the Business or that contain "take or pay" provisions;

(iii) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);

(iv) all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;

(v) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees);

(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than 90 days' notice;

(vii) all Contracts with any Governmental Authority (" Government Contracts ");

(viii) all Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;

(ix) all Contracts that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any geographic area or during any period of time;

(x) all joint venture, partnership or similar Contracts; and

(xi) all powers of attorney with respect to the Business or any Purchased Asset.

(b) Each Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect. None of Seller or, to Seller's Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. To Seller's Knowledge, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer. There are no material disputes pending or, to Seller's Knowledge, threatened under any Contract included in the Purchased Assets. The Seller is not bound by or otherwise performing under any oral arrangements with respect to the Business.

Section 4.08 Title to Purchased Assets . Seller has good and valid title to, or a valid leasehold interest in, all of the Purchased Assets. All such Purchased Assets (including leasehold interests, but excluding Intellectual Property Assets) are free and clear of Encumbrances except for the following (collectively referred to as " Permitted Encumbrances "):

(a) those items set forth in Section 4.08 of the Disclosure Schedules;

(b) liens for Taxes not yet due and payable and for Taxes being contested in good faith;

(c) mechanics', carriers', workmen's, repairmen's or other like liens arising or incurred in the ordinary course of business consistent with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business or the Purchased Assets;

(d) easements, rights of way, zoning ordinances and other similar encumbrances affecting Leased Real Property which are not, individually or in the aggregate, material to the Business or the Purchased Assets, which do not prohibit or interfere with the current operation of any Leased Real Property and which do not render title to any Leased Real Property unmarketable; or

(e) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business consistent with past practice which are not, individually or in the aggregate, material to the Business or the Purchased Assets.

Section 4.09 Condition and Sufficiency of Assets . Except as set forth in Section 4.09 of the Disclosure Schedules, the buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property included in the Purchased Assets are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The Purchased Assets are sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the Business as currently conducted. None of the Excluded Assets are material to the Business.

Section 4.10 Real Property .

(a) Seller does not own any parcel of real property.

(b) Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by Seller and used in or necessary for the conduct of the Business as currently conducted (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the " Leased Real Property "), which consist of the Leased Real Property currently occupied by Seller (the " Current Leased Real Property ") and the Leased Real Property that Seller anticipates occupying commencing October 1, 2014 (the " Future Leased Real Property ") and the leases, including all amendments, extensions, renewals, and guaranties with respect thereto, pursuant to which Seller holds the Leased Real Property are listed in Section 4.07(a) of the Disclosure Schedules (collectively, the " Leases "). Seller has made available to Buyer a true and complete copy of each Lease. Seller has no present intention to renew the Lease with respect to the Current Leased Real Property beyond its current lease term. With respect to each Lease:

(i) such Lease is valid, binding, enforceable and in full force and effect, and Seller enjoys peaceful and undisturbed possession of the Current Leased Real Property;

(ii) Seller is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;

(iii) Seller has not received nor given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to the Future Leased Real Property has exercised any termination rights with respect thereto;

(iv) Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy the Future Leased Real Property or any portion thereof; and

(v) Seller has not pledged, mortgaged or otherwise granted an Encumbrance on its leasehold interest in the Future Leased Real Property.

(c) Seller has not received any written notice of (i) violations of building codes and/or zoning ordinances or other governmental or regulatory Laws affecting the Future Leased Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Future Leased Real Property, or (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to adversely affect the ability to operate the Future Leased Real Property as currently operated at the Current Leased Real Property. Neither the whole nor any material portion of any Leased Real Property has been damaged or destroyed by fire or other casualty.

(d) The Leased Real Property is sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.

Section 4.11 Intellectual Property .

(a) Section 4.11(a) of the Disclosure Schedules contains a correct, current and complete list of all: (A) Intellectual Property Registrations owned by Seller and specifying as to each, as applicable: the nature of such Intellectual Property Registration; the title, mark or design; inventor, if any; the jurisdiction by or in which it has been issued or registered or in which an application for such issuance or registration has been filed; the registration or application serial number; and the registration or application date; and (B) Intellectual Property Assets owned by Seller, including Software, that are not registered but that are material to the operation of the Business as currently conducted or planned and including, in each case, a brief description of the Intellectual Property. All required filings and fees related to the Intellectual Property Registrations have been timely filed with and paid to the relevant Governmental Authorities and authorized registrars, and all Intellectual Property Registrations are in good standing. Seller, to the extent requested by Buyer, has provided Buyer with true and complete copies of all file histories, documents, certificates, office actions, correspondence and other materials related to all Intellectual Property Registrations.

(b) Section 4.11(b) of the Disclosure Schedules contains a correct, current and complete list of all Intellectual Property Agreements, including the date, title and parties for each agreement. Such schedule identifies under separate headings (i) Intellectual Property Agreements under which Seller is the licensor or licensee or which otherwise relate to the Seller's ownership or Business's use of Intellectual Property and (ii) for each Intellectual Property Agreement under which Seller is the licensee or otherwise permitted to use a third party's Intellectual Property, the Licensed Intellectual Property that relates to such Agreements. Seller has made available to Buyer with true and complete copies (or in the case of any oral agreements, a complete and accurate written description) of all Intellectual Property Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each Intellectual Property Agreement is valid and binding on Seller in accordance with its terms and is in full force and effect. Neither Seller nor, to Seller's Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach or default under), or has provided or received any notice of breach or default of or any intention to terminate, any Intellectual Property Agreement. To Seller's Knowledge, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Intellectual Property Agreement or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder.

(c) Seller is the sole and exclusive legal and beneficial, and with respect to the Intellectual Property Registrations, record, owner of all right, title and interest in and to the Intellectual Property Assets owned by Seller, and has the valid right to use all other Intellectual Property used or held for use in or necessary for the conduct of the Business as currently conducted or planned, in each case, free and clear of all Encumbrances other than Permitted Encumbrances.

(d) The Intellectual Property Assets and Intellectual Property licensed under the Intellectual Property Agreements is all of the Intellectual Property necessary to operate the Business as presently conducted or planned. The consummation of the transactions contemplated hereunder will not result in the loss or impairment of or payment of additional amounts with respect to, nor, except as set forth in Section 4.03 of the Disclosure Schedules, require the consent of any other Person in respect of, the Buyer's right to own, use or hold for use any Intellectual Property necessary to operate the Business as presently conducted or planned. Without limiting the generality of the foregoing, Seller has entered into binding, written agreements with every current and former employee of the Seller, and with every current and former independent contractor, whereby such employees and independent contractors: (A) enter into an enforceable "work-made-for-hire" arrangement or written agreement with the Seller or assign to the Seller any ownership interest and right they may have in the Intellectual Property Asset (subject, in the case of independent contractors, to the contractors' reservation of rights in Intellectual Property developed independently of the applicable agreement); and (B) acknowledge the Seller's exclusive ownership of the Intellectual Property Assets. Seller, to the extent requested by Buyer, has provided Buyer with true and complete copies of all such agreements.

(e) Seller's rights in the Intellectual Property Assets, to Seller's Knowledge, are valid, subsisting and enforceable. Seller has taken all reasonable steps to maintain the Intellectual Property Assets and to protect and preserve the confidentiality of all Trade Secrets included in the Intellectual Property Assets, including requiring all Persons having access thereto to execute written non-disclosure agreements.

(f) To Seller's Knowledge, the conduct of the Business as currently and formerly conducted and planned, and the Intellectual Property Assets and Licensed Intellectual Property as currently or formerly owned, licensed or used by Seller or proposed to be used by Buyer, have not infringed, misappropriated, diluted or otherwise violated, and have not, do not and will not infringe, dilute, misappropriate or otherwise violate, the Intellectual Property or other rights of any Person. To Seller's Knowledge, no Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting or otherwise violating, any Intellectual Property Assets.

(g) There are no Actions (including any oppositions, interferences or re-examinations) settled, pending, or to Seller's Knowledge, threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, dilution or violation of the Intellectual Property of any Person by Seller in connection with the Business; (ii) challenging the validity, enforceability, registrability or ownership of any Intellectual Property Assets or Seller's rights with respect to any Intellectual Property Assets or Licensed Intellectual Property; or (iii) by Seller or any other Person alleging any infringement, misappropriation, dilution or violation by any Person of any Intellectual Property Assets. Seller is not subject to any outstanding or prospective Order (including any motion or petition therefor) that does or would restrict or impair the use of any Intellectual Property Assets or Licensed Intellectual Property.

Section 4.12 Reserved .

Section 4.13 Accounts Receivable . The Accounts Receivable reflected on the Interim Balance Sheet and the Accounts Receivable arising after the date thereof (a) have arisen from bona fide transactions entered into by Seller involving the sale of goods or the rendering of services in the ordinary course of business consistent with past practice and (b) constitute only valid, undisputed claims of Seller not subject to claims of set-off or other defenses or counterclaims other than normal cash discounts accrued in the ordinary course of business consistent with past practice.

Section 4.14 Customers and Suppliers .

(a) Section 4.14(a) of the Disclosure Schedules sets forth with respect to the Business (i) each customer who has paid aggregate consideration to Seller for goods or services rendered in an amount greater than or equal to $25,000 for each of the two most recent fiscal years (collectively, the " Material Customers "); and (ii) the amount of consideration paid by each Material Customer during such periods. Except as set forth in Section 4.14(a) of the Disclosure Schedules, Seller has not received any notice that any of the Material Customers has ceased, or intends to cease after the Closing, to use the goods or services of the Business or to otherwise terminate or materially reduce its relationship with the Business and, to Seller's Knowledge, there are no material disputes with any Material Customer.

(b) Section 4.14(b) of the Disclosure Schedules sets forth with respect to the Business (i) each supplier to whom Seller has paid consideration for goods or services rendered in an amount greater than or equal to $25,000 for each of the two most recent fiscal years (collectively, the " Material Suppliers "); and (ii) the amount of purchases from each Material Supplier during such periods. Except as set forth in Section 4.14(b) of the Disclosure Schedules, Seller has not received any notice that any of the Material Suppliers has ceased, or intends to cease, to supply goods or services to the Business or to otherwise terminate or materially reduce its relationship with the Business and, to Seller's Knowledge, there are no material disputes with any Material Supplier.

Section 4.15 Insurance . Section 4.15 of the Disclosure Schedules sets forth a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, real and personal property, workers' compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Seller or its Affiliates and relating to the Business, the Purchased Assets or the Assumed Liabilities (collectively, the " Insurance Policies "). Except as set forth on Section 4.15 of the Disclosure Schedules, there are no claims related to the Business, the Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. All such Insurance Policies are in full force and effect and enforceable in accordance with their terms.

Section 4.16 Legal Proceedings; Governmental Orders .

(a) Except as set forth in Section 4.16(a) of the Disclosure Schedules, there are no Actions pending or, to Seller's Knowledge, threatened against or by Seller (a) relating to or affecting the Business, the Purchased Assets or the Assumed Liabilities or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To Seller's Knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

(b) Except as set forth in Section 4.16(b) of the Disclosure Schedules, there are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Business. Seller is in compliance, in all material respects, with the terms of each Governmental Order set forth in Section 4.16(b) of the Disclosure Schedules. To Seller's Knowledge, no event has occurred or circumstances exist that may constitute or result in (with or without notice or lapse of time) a violation of any such Governmental Order.

Section 4.17 Compliance With Laws; Permits .

(a) Except as set forth in Section 4.17(a) of the Disclosure Schedules, Seller is currently, and has for the last (2) years been, in material compliance with all Laws applicable to the conduct of the Business or the ownership and use of the Purchased Assets.

(b) All material Permits required for Seller to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets have been obtained by Seller and are valid and in full force and effect. Section 4.17(b) of the Disclosure Schedules lists all current Permits issued to Seller which are related to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets, including the names of the Permits and their respective dates of issuance and expiration. To Seller's Knowledge, no event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 4.17(b) of the Disclosure Schedules.

Section 4.18 Environmental Matters .

(a) The operations of Seller with respect to the Business and the Purchased Assets are currently and have been in material compliance with all Environmental Laws. Seller has not received from any Person, with respect to the Business or the Purchased Assets, any: (i) Environmental Notice or Environmental Claim; or (ii) written request for information pursuant to Environmental Law, which, in each case, either remains pending or unresolved, or is the source of ongoing obligations or requirements as of the Closing Date.

(b) Seller has obtained and is in material compliance with all Environmental Permits (each of which is disclosed in Section 4.18(b) of the Disclosure Schedules) necessary for the conduct of the Business as currently conducted or the ownership, lease, operation or use of the Purchased Assets and all such Environmental Permits are in full force and effect and shall be maintained in full force and effect by Seller through the Closing Date in accordance with Environmental Law, and Seller is not aware of any condition, event or circumstance that might prevent or impede, after the Closing Date, the conduct of the Business as currently conducted or the ownership, lease, operation or use of the Purchased Assets. With respect to any such Environmental Permits, Seller has undertaken, or will undertake prior to the Closing Date, all measures reasonably necessary to facilitate transferability of the same, and Seller is not aware of any condition, event or circumstance that might prevent or impede the transferability of the same, and has not received any Environmental Notice or written communication regarding any material adverse change in the status or terms and conditions of the same.

(c) None of the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by Seller in connection with the Business is listed on, or to Seller's Knowledge, has been proposed for listing on, the National Priorities List (or CERCLIS) under CERCLA, or any similar state list.

(d) There has been no Release of Hazardous Materials in contravention of Environmental Law with respect to the Business or the Purchased Assets or any real property currently or, to Seller's Knowledge, formerly owned, leased or operated by Seller in connection with the Business, and Seller has not received an Environmental Notice that any of the Business or the Purchased Assets or real property currently or formerly owned, leased or operated by Seller in connection with the Business (including soils, groundwater, surface water, buildings and other structure located thereon) has been contaminated with any Hazardous Material which could reasonably be expected to result in an Environmental Claim against, or a violation of Environmental Law or term of any Environmental Permit by, Seller.

(e) Section 4.18(e) of the Disclosure Schedules contains a complete and accurate list of all active or abandoned aboveground or underground storage tanks owned or operated by Seller in connection with the Business or the Purchased Assets.

(f) Section 4.18(f) of the Disclosure Schedules contains a complete and accurate list of all off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by Seller in connection with the Business or the Purchased Assets as to which Seller may retain liability, and to Seller's Knowledge, none of these facilities or locations has been placed or proposed for placement on the National Priorities List (or CERCLIS) under CERCLA, or any similar state list, and Seller has not received any Environmental Notice regarding potential liabilities with respect to such off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by Seller.

(g) Seller has not retained or assumed, by contract or operation of Law, any liabilities or obligations of third parties under Environmental Law.

(h) Seller has provided or otherwise made available to Buyer and listed in Section 4.18(h) of the Disclosure Schedules: (i) any and all environmental reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models and other similar documents with respect to the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by Seller in connection with the Business which are in the possession or control of Seller related to compliance with Environmental Laws, Environmental Claims or an Environmental Notice or the Release of Hazardous Materials; and (ii) any and all material documents concerning planned or anticipated capital expenditures required to reduce, offset, limit or otherwise control pollution and/or emissions, manage waste or otherwise ensure compliance with current or future Environmental Laws (including, without limitation, costs of remediation, pollution control equipment and operational changes).

(i) Seller is not aware of or reasonably anticipates, as of the Closing Date, any condition, event or circumstance concerning the Release or regulation of Hazardous Materials that might, after the Closing Date, prevent, impede or materially increase the costs associated with the ownership, lease, operation, performance or use of the Business or the Purchased Assets as currently carried out.

Section 4.19 Employee Benefit Matters .

(a) Section 4.19(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each "employee benefit plan" within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Seller for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has or may have any Liability (as listed on Section 4.19(a) of the Disclosure Schedules, each, a " Benefit Plan "). Seller has separately identified in Section 4.19(a) of the Disclosure Schedules each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to by Seller primarily for the benefit of employees of the Business outside of the United States (a " Non-U.S. Benefit Plan ").

(b) With respect to each Benefit Plan, Seller has made available to Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) copies of the current employee handbook and (iv) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service.

(c) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a " Qualified Benefit Plan ") has received a favorable and current determination letter from the Internal Revenue Service, or with respect to a prototype plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan sponsor, to the effect that such Qualified Benefit Plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. All Non-U.S. Benefit Plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.

(d) With respect to each Benefit Plan (i) no such plan is a multiemployer plan with the meaning of Section 3(37) of ERISA (a " Multiemployer Plan "); (ii) neither Seller nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied; (iii) no such plan is a "multiple employer plan" within the meaning of Section 413(c) of the Code or a "multiple employer welfare arrangement" (as defined in Section 3(40) of ERISA); and (iv) no such plan is subject to the minimum funding standards of Section 412 of the Code or Title IV of ERISA, and none of the Purchased Assets is, or may reasonably be expected to become, the subject of any lien arising under Section 302 of ERISA or Section 412(a) of the Code/except as set forth in Section 4.19(d) of the Disclosure Schedules, no such plan is subject to the minimum funding standards of Section 412 of the Code.

(e) Except as set forth in Section 4.19(e) of the Disclosure Schedules and other than as required under Section 601 et. seq. of ERISA or other applicable Law, no Benefit Plan or other arrangement provides post-termination or retiree welfare benefits to any individual for any reason.

(f) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.

(g) Except as set forth in Section 4.19(g) of the Disclosure Schedules, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events) result in "excess parachute payments" within the meaning of Section 280G(b) of the Code or require a "gross-up" or other payment to any "disqualified individual" within the meaning of Section 280G(c) of the Code.

Section 4.20 Employment Matters .

(a) Section 4.20(a) of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of the Business as of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus or other incentive-based compensation; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. Except as set forth in Section 4.20(a) of the Disclosure Schedules, as of the date hereof, all compensation, including wages, commissions and bonuses payable to all employees, independent contractors or consultants of the Business for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller with respect to any compensation, commissions or bonuses.

(b) Except as set forth in Section 4.20(b) of the Disclosure Schedules, Seller is not, and has never been, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, " Union "), and there is not, and has never been, any Union representing or purporting to represent any employee of Seller, and, to Seller's Knowledge, no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. Except as set forth in Section 4.20(b) of the Disclosure Schedules, there has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting Seller or any employees of the Business. Seller has no duty to bargain with any Union.

(c) Seller is and has been in compliance with the terms of the collective bargaining agreements and other Contracts listed on Section 4.20(b) of the Disclosure Schedules and all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of the Business, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers' compensation, leaves of absence and unemployment insurance. All individuals characterized and treated by Seller as consultants or independent contractors of the Business are properly treated as independent contractors under all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified. Except as set forth in Section 4.20(c) , there are no Actions against Seller pending, or to the Seller's Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant, volunteer, intern or independent contractor of the Business, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, wages and hours or any other employment related matter arising under applicable Laws.

(d) With respect to each Government Contract, Seller is and has been in compliance with Executive Order No. 11246 of 1965 ("E.O. 11246"), Section 503 of the Rehabilitation Act of 1973 ("Section 503") and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA"), including all implementing regulations. Seller maintains and complies with affirmative action plans in compliance with E.O. 11246, Section 503 and VEVRAA, including all implementing regulations. Seller is not, and has not been for the past 3 years, the subject of any audit, investigation or enforcement action by any Governmental Authority in connection with any Government Contract or related compliance with E.O. 11246, Section 503 and VEVRAA. Seller has not been debarred, suspended or otherwise made ineligible from doing business with the United States government or any government contractor.

Section 4.21 Taxes . Except as set forth in Section 4.21 of the Disclosure Schedules:

(a) All Tax Returns required to be filed by Seller for any Pre-Closing Tax Period have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all material respects. All Taxes due and owing by Seller (whether or not shown on any Tax Return) have been, or will be, timely paid.

(b) The Seller has withheld and paid when due all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor, independent contractor, equityholder, foreign payee or other third party, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.

(c) Except for any Permitted Encumbrances, including statutory Encumbrances for current Taxes not yet due and payable, there are no Encumbrances related or attributable to Taxes encumbering (and to Seller's Knowledge, no taxing authority has threatened in writing to encumber) any of the assets of the Seller.

(d) No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Seller.

(e) All deficiencies asserted, or assessments made, against Seller as a result of any examinations by any taxing authority have been fully paid.

(f) Seller is not a party to any Action by any taxing authority. There are no pending or threatened, in writing, Actions by any taxing authority.

(g) Seller is not a "foreign person" as that term is used in Treasury Regulations Section 1.1445-2.

(h) Seller is not, and has not been, a party to, or a promoter of, a "reportable transaction" within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b).

(i) Notwithstanding anything in this Agreement to the contrary, the representations and warranties in Section 4.08 , Section 4.19 , and this Section 4.21 are the sole representations and warranties relating to Taxes of the Seller.

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

Section 4.23 No Other Representations and Warranties . Except for the representations and warranties contained in this Article IV , none of Seller, any Affiliate of Seller or any other Person makes any representations or warranties, and Seller hereby disclaims any other representations or warranties, whether made by Seller or an Affiliate of Seller, or any of their respective Representatives, with respect to the execution and delivery of this Agreement and the Transaction Documents to which it will be a party, any of the transactions contemplated by this Agreement or the Transaction Documents to which it will be a party or the Purchased Assets, notwithstanding the delivery or disclosure to Buyer or its Representatives of any documentation or other information with respect to one or more of the foregoing.

ARTICLE V
Representations and warranties of buyer

Buyer represents and warrants to Seller that the statements contained in this Article V are true and correct as of the date hereof.

Section 5.01 Organization of Buyer . Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the state of Delaware.

Section 5.02 Authority of Buyer . Buyer has all necessary corporate power and authority to enter into this Agreement and the other Transaction Documents to which Buyer is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and any other Transaction Document to which Buyer is a party, the performance by Buyer of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). When each other Transaction Document to which Buyer is or will be a party has been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 5.03 No Conflicts; Consents . The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of Buyer; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer; or (c) except as set forth in Section 5.03 of the Disclosure Schedules, require the consent, notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

Section 5.04 Brokers . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer.

Section 5.05 Sufficiency of Funds . Buyer has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Purchase Price and consummate the transactions contemplated by this Agreement.

Section 5.06 Solvency . Immediately after giving effect to the transactions contemplated hereby, Buyer shall be solvent and shall: (a) be able to pay its debts as they become due; (b) own property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities); and (c) have adequate capital to carry on its business. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either present or future creditors of Buyer or Seller. In connection with the transactions contemplated hereby, Buyer has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.

Section 5.07 Legal Proceedings . Except as set forth in Section 5.10 of the Disclosure Schedules, there are no Actions pending or, to Buyer's knowledge, threatened against or by Buyer or any Affiliate of Buyer that (a) challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement or (b) otherwise relate to Buyer's properties or assets. No event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.

Section 5.08 Independent Investigation . Buyer has conducted its own independent investigation, review and analysis of the Business and the Purchased Assets, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of Seller for such purpose. Buyer acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own investigation and the express representations and warranties of Seller set forth in Article IV of this Agreement (including related portions of the Disclosure Schedules); and (b) neither Seller nor any other Person has made any representation or warranty as to Seller, the Business, the Purchased Assets or this Agreement, except as expressly set forth in Article IV of this Agreement (including the related portions of the Disclosure Schedules).

ARTICLE VI
Covenants

Section 6.01 Conduct of Business Prior to the Closing . From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall (x) conduct the Business in the ordinary course of business consistent with past practice; and (y) use commercially reasonably efforts to maintain and preserve intact its current Business organization, operations and franchise and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having relationships with the Business. Without limiting the foregoing, from the date hereof until the Closing Date, Seller shall:

(a) preserve and maintain all Permits required for the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets;

(b) pay the debts, Taxes and other obligations of the Business when due;

(c) continue to collect Accounts Receivable in a manner consistent with past practice, without discounting such Accounts Receivable;

(d) maintain the properties and assets included in the Purchased Assets in the same condition as they were on the date of this Agreement, subject to reasonable wear and tear;

(e) continue in full force and effect without modification all material Insurance Policies, except as required by applicable Law;

(f) defend and protect the properties and assets included in the Purchased Assets from infringement or usurpation;

(g) perform all of its obligations under all Assigned Contracts, in all material respects;

(h) maintain the Books and Records in accordance with past practice;

(i) comply in all material respects with all Laws applicable to the conduct of the Business or the ownership and use of the Purchased Assets; and

(j) not take or permit any action that would cause any of the changes, events or conditions described in Section 4.06 to occur.

Section 6.02 Access to Information . From the date hereof until the Closing, Seller shall (a) afford Buyer and its Representatives reasonable access to and the right to inspect all of the Leased Real Property, properties, assets, premises, Books and Records, Contracts and other documents and data related to the Business; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller to cooperate with Buyer in its investigation of the Business; provided, however, that any such investigation shall be conducted during normal business hours upon reasonable advance notice to Seller, under the supervision of Seller's personnel and in such a manner as not to interfere with the conduct of the Business or any other businesses of Seller.

Section 6.03 No Solicitation of Other Bids .

(a) Seller shall not, and shall not authorize or permit any of its Affiliates or any of its or their Representatives to, directly or indirectly, (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to be terminated, and shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof, " Acquisition Proposal " means any inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets.

(b) In addition to the other obligations under this Section 6.03 , Seller shall promptly (and in any event within three Business Days after receipt thereof by Seller or its Representatives) advise Buyer orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the same.

(c) Seller agrees that the rights and remedies for noncompliance with this Section 6.03 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Buyer and that money damages would not provide an adequate remedy to Buyer.

Section 6.04 Notice of Certain Events . From the date hereof until the Closing, and subject to Section 6.19 , Seller shall promptly notify Buyer in writing of:

(a) any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Seller hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.02 to be satisfied; and

(b) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

(c) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement;

(d) any Actions commenced or, to Seller's Knowledge, threatened against, relating to or involving or otherwise affecting the Business, the Purchased Assets or the Assumed Liabilities that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 4.16 or that relates to the consummation of the transactions contemplated by this Agreement;

(e) any expression by an Interested Party, whether in writing or orally, or a Seller Acquisition Proposal; and

(f) any employee bonuses paid in equity of the Seller, in Seller's management's discretion, to employees to compensate such employees for lost income opportunities resulting from the consummation of the transactions contemplated by this Agreement.

Section 6.05 Employees and Employee Benefits .

(a) Commencing on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and, other than with respect to Key Employees and the Specified Sales Employees, Buyer will offer employment, on an "at will" basis, to all of such employees. All employees of Seller hired by Buyer will be considered " Hired Employees ." Buyer shall use its commercially reasonable efforts to promptly transition each Specified Sales Employee to a PEO arrangement with ADP, Inc. or other payroll solutions provider. Buyer will have no Liability with regard to any employee of Seller who does not accept employment with Buyer and become a Hired Employee. Subject to the terms and conditions of any applicable contract, nothing contained in this Agreement will confer upon any Hired Employee any right with respect to continuance of employment by Buyer after the Closing, nor will anything herein interfere with the right of Buyer to terminate the employment of any Hired Employee at any time after the Closing.

(b) Buyer will provide to Hired Employees during the one-year period ending on the first anniversary of the Closing, with terms of employment, compensation and employee benefits which, in the aggregate, are at least substantially comparable to those in effect on the Closing Date and provided by the Seller to the Hired Employees, but excluding for all purposes all equity and equity-based compensation.

(c) For purposes of eligibility and vesting under the employee benefit plans (other than any equity based incentive or compensation programs) of Buyer and its Affiliates providing benefits to any Hired Employees after the Closing Date (the " Buyer Plans "), and for purposes of accrual of vacation and other paid time off and severance benefits under applicable Buyer Plans, each Hired Employee shall be credited with his or her years of service with Seller before the Closing Date.

(d) Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable, to the extent applicable, to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time on or prior to the Closing Date.

(e) Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for all worker's compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.

Section 6.06 Confidentiality . From and after the Closing, Seller shall hold, and shall use its commercially reasonable efforts to cause its Representatives to hold, in confidence any and all information, whether written or oral, concerning the Business, except to the extent that Seller can show that such information (a) is generally available to and known by the public through no fault of Seller or its Representatives; or (b) is lawfully acquired by Seller or its Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Seller or its Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing is legally required to be disclosed, provided that Seller shall use commercially reasonable efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.

Section 6.07 Non-competition; Non-solicitation .

(a) For a period of 3 years commencing on the Closing Date (the " Restricted Period "), Seller shall not directly or indirectly, (i) engage in or assist others in engaging in the Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that, to Seller's Knowledge, becomes a client or customer of the Business during the Restricted Period), or any other Person who has a material business relationship with the Business as of the date of this Agreement or, to Seller's Knowledge, at any time during the Restricted Period, to terminate or modify any such actual relationship. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person.

(b) During the Restricted Period, Seller shall not directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 6.05(a) or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.07(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.

(c) Seller acknowledges that a breach or threatened breach of this Section 6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

(d) Seller acknowledges that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

(e) Within 3 Business Days after the Closing Date, Seller will change its name to another name that is not similar to, or does not reference, the name SharpSpring in any manner.

Section 6.08 Governmental Approvals and Consents .

(a) Seller and Buyer shall use commercially reasonable efforts to give all notices to, and obtain all consents from, all third parties that are described in Section 4.03 and Section 5.03 of the Disclosure Schedules; provided, however , that Seller shall not be obligated to pay any consideration therefor to any third party from whom consent or approval is requested.

(b) Without limiting the generality of the parties' undertakings pursuant to subsection (a) above, each of the parties hereto shall use all commercially reasonable efforts to:

(i) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any other Transaction Document; and

(ii) in the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any other Transaction Document has been issued, to have such Governmental Order vacated or lifted.

Section 6.09 Books and Records .

(a) In order to facilitate the resolution of any claims made against or incurred by Seller prior to the Closing, or for any other reasonable purpose, including with respect to the rights and procedures set forth in Section 2.06(d) , for a period of 3 years after the Closing, Buyer shall:

(i) retain the Books and Records (including personnel files) relating to periods prior to the Closing in a manner reasonably consistent with the prior practices of Seller; and

(ii) upon reasonable notice, afford the Seller's Representatives reasonable access (including the right to make, at Seller's expense, photocopies), during normal business hours, to such Books and Records and Buyer's and Buyer Sub's personnel.

(b) In order to facilitate the resolution of any claims made by or against or incurred by Buyer after the Closing, or for any other reasonable purpose, for a period of 3 years following the Closing, Seller shall:

(i) retain the books and records (including personnel files) of Seller which relate to the Business and its operations for periods prior to the Closing; and

(ii) upon reasonable notice, afford the Buyer's Representatives reasonable access (including the right to make, at Buyer's expense, photocopies), during normal business hours, to such books and records.

(c) Neither Buyer nor Seller shall be obligated to provide the other party with access to any books or records (including personnel files) pursuant to this Section 6.09 where such access would violate any Law.

Section 6.10 Closing Conditions . From the date hereof until the Closing, each party hereto shall use commercially reasonable efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in Article VII hereof.

Section 6.11 Public Announcements . Unless otherwise required by applicable Law or stock exchange requirements (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.

Section 6.12 Bulk Sales Laws . The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Buyer.

Section 6.13 Receivables . From and after the Closing, if Seller receives or collects any funds relating to any Accounts Receivable or any other Purchased Asset, Seller shall remit such funds to Buyer within five Business Days after its receipt thereof. From and after the Closing, if Buyer or its Affiliate receives or collects any funds relating to any Excluded Asset, Buyer or its Affiliate shall remit any such funds to Seller within five Business Days after its receipt thereof.

Section 6.14 Transfer Taxes . All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest and the cost of the preparation of any Tax Returns related thereto) incurred in connection with this Agreement and the other Transaction Documents (including any real property transfer Tax and any other similar Tax) shall be borne and paid by 50% by Seller and 50% by Buyer when due. Seller shall timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary and promptly reimburse Seller for its share of any such documented Taxes, fees and costs). Buyer shall provide, at least three (3) days prior to the Closing, properly completed, valid and executed certificates, if any, evidencing exemption from any transfer taxes.

Section 6.15 Pro Ration of Certain Taxes/Refunds .

(a) All real property, personal property or similar ad valorem taxes levied upon the Purchased Assets (collectively, the " Apportioned Obligations ") shall be apportioned between the Seller, on the one hand, and Buyer, on the other hand based on the number of days of such Tax period included in the Pre-Closing Tax Period and the number of days of such Tax period included in the Post-Closing Tax Period. Seller shall be liable for the amount of such Taxes that is attributable to the Pre- Closing Tax Period (and will be given credit for any prepayments of Tax that offset such liabilities made by Seller), and Buyer shall be liable for the amount of such Taxes that is attributable to the Post-Closing Tax Period. Except with the prior written approval of Seller, Buyer shall not and shall procure that Buyer Sub shall not file or caused to be filed any amended Tax Return for any Pre-Closing Tax Period or take any voluntary action or make any voluntary omission on the Closing Date after the time of the Closing which increases the amount of Taxes attributable to the Pre-Closing Period (as determined pursuant to this Section 6.15(a) ).

(b) In the event Buyer, Buyer Sub or any Affiliate receives any refund of Taxes (whether by direct receipt of money or the application of such refund as a payment of Taxes for a Post-Closing Tax Period) for a Pre-Closing Tax Period, Buyer shall promptly pay an amount equal to such refund to the Seller.

Section 6.16 Earn-Out Stock Component . Buyer covenants that all shares of Common Stock which may be issued upon the payment of the Earn-Out Stock Component will, upon issuance by Buyer, be duly and validly issued, fully paid and nonassessable, and free from preemptive rights and free from all Taxes, liens, duties and charges with respect thereto. Buyer further covenants that, from and after the date hereof, Buyer will at all times have authorized and reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of paying the Earn-Out Stock Component, a sufficient number of shares of Common Stock to provide for the payment of the Earn-Out Stock Component. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the payment of the Earn-Out Stock Component, Buyer shall take any and all corporate action within its control as is necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. Buyer will take all required action within its control as may be necessary on its part to assure that all such shares of Common Stock may be so issued without violation of any Law, or of any requirements of NASDAQ. In the event Buyer is required but unable to pay the Earn-Out Stock Component in Common Stock for any reason, Buyer will pay Seller with cash in an equivalent amount in full and final satisfaction of the Earn-Out Stock Component.

Section 6.17 Registration Rights . As soon as commercially practicable subsequent to issuance of the Earn-Out Stock Component, but in any event prior to 30 days subsequent to such issuance, Buyer shall (i) file a registration statement on Form S‑3 if available, and if not available or practicable, use another appropriate registration statement such as Form S-1 (" Registration Statement ") with the Commission covering the resale by Seller of the Registrable Securities, (ii) use its reasonable best efforts to have such Registration Statement declared effective as promptly as practicable thereafter, and (iii) keep the Registration Statement effective until (1) the date on which the Registrable Securities may be resold by Seller without registration under the Securities Act and without regard to any volume limitations by reason of Rule 144 under the Securities Act or any other rule of similar effect or (2) all of the Registrable Securities have been sold pursuant to the Registration Statement or Rule 144 under the Securities Act or any other rule of similar effect. Buyer shall, promptly upon receipt of notice of a transfer by Seller, add to the Registration Statement any transferee of the Earn-Out Stock Component.

Section 6.18 Further Assurances . Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the other Transaction Documents.

Section 6.19 Disclosure Schedules Update ; Interim Financials . From and after the date of this Agreement until the earlier of the termination of this Agreement or the Closing Date, the Seller shall disclose to Buyer in writing promptly upon discovery thereof (i) (in the form of updated Disclosure Schedules) any material variances from the representations and warranties contained in Article IV (the " Updated Disclosures ") and (ii) if the employment of any key employee, or group of employees, of the Company is terminated for any reason, whether by the Company or by such key employee, or group of employees. None of the foregoing disclosures shall limit or otherwise affect the remedies available to the Buyer hereunder; provided , that if such Updated Disclosures (A) were not required to be disclosed to make the representations and warranties true and correct in all material respects as of the date hereof and (B) disclose underlying events that occurred and circumstances that arose exclusively between the date hereof and the Closing (any disclosure meeting the requirements of clauses (A) and (B) , a " Qualifying Updated Disclosure "), then such Qualifying Updated Disclosure(s) shall amend and supplement the representations and warranties in Article IV as of the Closing Date for purposes of indemnification under Article VIII hereunder but not for purposes of determining whether the conditions set forth in Section 7.02(a) have been satisfied.

Section 6.20 Additional Share Listing Application . As soon as commercially practicable, but in no event later than 30 days subsequent to the Closing Date, Buyer shall file the Additional Share Listing Application and use its reasonable best efforts to have the Additional Share Listing Application approved by NASDAQ.

ARTICLE VII
Conditions to closing

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

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

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

(a) The representations and warranties set forth in Article IV above which are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date), and the representations and warranties set forth in Article IV which are qualified by materiality or Material Adverse Effect shall be true and correct in all respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date).

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

(c) No Action shall have been commenced against Seller, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.

(d) All approvals, consents and waivers that are identified as Required Consents on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.

(e) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.

(f) Seller shall have delivered, or caused to be delivered, each of the documents and agreements (duly executed where applicable) set forth in Section 3.02(a) .

(g) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.

(h) All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall have delivered to Buyer written evidence, which may include payoff letters, in form reasonably satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.

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

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

(k) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

(l) Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the " FIRPTA Certificate ") that Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.

(m) Seller shall have delivered to Buyer a signed engagement letter or other agreement between the Company and an independent accounting firm (registered with the PCAOB) in which the accounting firm commits within 45 days from the execution of this Agreement to deliver complete audited financial statements (with footnotes) of the Company for 2013 in accordance with US GAAP.

(n) Seller shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

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

(a) The representations and warranties set forth in Article V above which are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date), and the representations and warranties set forth in Article V which are qualified by materiality or Material Adverse Effect shall be true and correct in all respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date).

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

(c) No Action shall have been commenced against Buyer which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.

(d) All approvals, consents and waivers that are listed on Section 5.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Seller at or prior to the Closing.

(e) Buyer shall have delivered, or caused to be delivered, each of the documents and agreements (duly executed where applicable) set forth in Section 3.02(b) .

(f) Buyer shall have delivered to Seller the $5,000,000 Cash Component, as adjusted pursuant to Section 3.02(a)(i).

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

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

(i) Seller shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

(j) Buyer shall have delivered to Seller such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

ARTICLE VIII
Indemnification

Section 8.01 Survival . Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until April 30, 2016; provided, that the representations and warranties in (i) Section 4.01 , Section 4.02 , Section 5.01 , Section 5.02 and Section 5.04 (collectively, the " Fundamental Representations ") shall survive indefinitely \and (ii) Section 4.19 and Section 4.21 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 days. None of the covenants or other agreements contained in this Agreement shall survive the Closing Date other than those which by their terms contemplate performance after the Closing Date, and each such surviving covenant and agreement shall survive the Closing for the period contemplated by its terms. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved. For the avoidance of doubt, the parties hereby agree and acknowledge that the survival periods set forth in this Section 8.01 are contractual statutes of limitations and any claim brought by any party pursuant to this Article VIII must be brought or filed prior to the expiration of the applicable survival period. No claim for indemnification may be asserted against either party for breach of any representation, warranty, covenant or agreement contained herein, unless written notice of such claim is received by such party describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim on or prior to the date on which the representation, warranty, covenant or agreement on which such claim is based ceases to survive as set forth in Section 8.01.

Section 8.02 Indemnification By Seller . Subject to the other terms and conditions of this Article VIII , Seller shall indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, the " Buyer Indemnitees ") against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:

(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement;

(d) any Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Seller (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date.

Section 8.03 Indemnification By Buyer . Subject to the other terms and conditions of this Article VIII , Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives (collectively, the " Seller Indemnitees ") against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:

(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement; or

Section 8.04 Certain Limitations . The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:

(a) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $125,000 (the " Basket "), in which event Seller shall be required to pay all such Losses from the first dollar. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.02(a) shall not exceed twenty percent (20%) of the sum of (x) Five Million Dollars ($5,000,000) plus (y) the Earn-Out Components calculated in accordance with Section 2.06 and payable to Seller pursuant to Section 2.06(e) (the " Cap "); provided , however , that the limitation set forth in this Section 8.04(a) shall not apply to (i) any breach or inaccuracy of any of the applicable Fundamental Representations or the representations and warranties set forth in Section 4.21 or (ii) any claims relating to fraud or willful misconduct.

(b) The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.

(c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01 , Section 4.02 , Section 4.18 , Section 4.19 , Section 4.21 , Section 5.01 , Section 5.02 and Section 5.04 .

(d) Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.

(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.

Section 8.05 Indemnification Procedures . The party making a claim under this Article VIII is referred to as the " Indemnified Party ", and the party against whom such claims are asserted under this Article VIII is referred to as the " Indemnifying Party ".

(a) Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a " Third Party Claim ") against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party's expense and by the Indemnifying Party's own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.05(b) , it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party's right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.05(b) , pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.06 ) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

(b) Settlement of Third Party Claims. The Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except as provided in this Section 8.05(b) . If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.05(a) , it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

(c) Direct Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a " Direct Claim ") shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party's investigation by giving such information and assistance (including access to the Indemnified Party's premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30 day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

Section 8.06 Payments . Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article VIII , the Indemnifying Party shall satisfy its obligations within 30 Business Days of such final, non-appealable adjudication by wire transfer of immediately available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such 30 Business Day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication to and including the date such payment has been made at a rate per annum equal to 1.5%. Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed, without compounding. Notwithstanding anything to the contrary set forth in this Agreement, the parties hereto acknowledge and agree that the Buyer shall have the right to withhold and offset against the Earn-Out Cash Component and/or the Earn-Out Stock Component (including any portion of such Earn-Out Stock Component payable in cash) payable to Seller any and all amounts subject to indemnification under Section 8.02 at the time such Earn-Out Cash Component and/or Earn-Out Stock Component is scheduled to be made.

Section 8.07 Tax Treatment of Indemnification Payments . All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

Section 8.08 Exclusive Remedies . Subject to Section 6.07 and Section 10.11 , the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud, criminal activity or willful misconduct on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VIII . In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article VIII . Nothing in this Section 8.08 shall limit any Person's right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account of any party's fraudulent, criminal or intentional misconduct.

ARTICLE IX
Termination

Section 9.01 Termination . This Agreement may be terminated at any time prior to the Closing:

(a) by the mutual written consent of Seller and Buyer;

(b) by Buyer by written notice to Seller if:

(i) Buyer is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to materially perform any representation, warranty, covenant or agreement made by Seller pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Article VII and such breach, inaccuracy or failure has not been cured by Seller by the Outside Date; or

(ii) any of the conditions set forth in Section 7.01 or Section 7.02 shall not have been fulfilled by September 1, 2014 (the " Outside Date "), unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;

(i) Seller is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Article VII and such breach, inaccuracy or failure has not been cured by Buyer by the Outside Date; or

(ii) any of the conditions set forth in Section 7.01 or Section 7.03 shall not have been fulfilled by the Outside Date, unless such failure shall be due to the failure of Seller to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;

(d) by Buyer or Seller in the event that (i) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.

Section 9.02 Seller Termination Fee . If Buyer terminates this Agreement pursuant to (a) Section 9.01(b)(i) or (b) Section 9.01(b)(ii) , and in the case of this clause (ii), all of the conditions to Seller's obligations to consummate the Closing under Section 7.01 or Section 7.03 have not been satisfied (other than any such conditions which by their nature are to be satisfied by the Closing Date), and within twelve months of the date of the termination of this Agreement, Seller consummates a Seller Acquisition Proposal from an Interested Party, then the Seller shall pay, or cause to be paid, to Buyer a fee equal to the total of (i) any proceeds received by Seller (or its Affiliates) in calendar year 2014 or concurrently with the closing of a transaction related to a Seller Acquisition Proposal less $5,000,000 plus (ii) any deferred proceeds payable pursuant to the Seller Acquisition Proposal in excess of $10,000,000 (collectively, the " Termination Fee "), by wire transfer of immediately available funds to an account designated by Buyer, not later than three Business Days after the consummation of such transaction arising from such Seller Acquisition Proposal. Each of the Parties hereto acknowledges that the agreements contained in this Section 9.02 are an integral part of the transactions contemplated by this Agreement and that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Buyer in the circumstances in which such Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision.

Section 9.03 Effect of Termination . In the event of the termination of this Agreement in accordance with this Article, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except:

(a) as set forth in this Article IX and Section 6.06 and Article X hereof; and

(b) that nothing herein shall relieve any party hereto from liability for any intentional breach of any provision hereof.

ARTICLE X
Miscellaneous

Section 10.01 Expenses . Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.

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

If to Seller:	SharpSpring, LLC 802 NW 5th Avenue, First Floor Gainesville, FL 32604 E-mail: rick@sharpsring.com Attention: Rick Carlson, CEO
with a copy to:	Pepper Hamilton, LLP Hamilton Square 600 Fourteenth Street, N.W. Washington, DC 20005-2004 E-mail: wormserd@pepperlaw.com Attention: David A. Wormser , Esq.

If to Buyer:	SMTP, Inc. 100 Innovative Way, Suite 3330 Nashua NH 03062 E-mail: jon.strimling@smtp.com Attention: Jonathan Strimling, CEO
with a copy to:	David M. Bovi, P.A 319 Clematis Street, Suite 700 West Palm Beach, FL 33401 E-mail: dmbpa@bellsouth.net Attention: David M. Bovi, Esq.

Section 10.03 Interpretation . For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

Section 10.04 Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 10.05 Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as provided in Section 6.07(d) , upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 10.06 Entire Agreement . This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous representations, warranties, understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

Section 10.07 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

Section 10.08 No Third-party Beneficiaries . Except as provided in Article VIII , this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 10.09 Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial .

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

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE INSTITUTED IN ANY STATE OR FEDERAL COURT IN THE STATE OF DELAWARE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY'S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10(c).

Section 10.11 Specific Performance . The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

Section 10.12 Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[SIGNATURE PAGE FOLLOWS]

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

	SHARPSPRING, LLC
	By_____________________ Name: Richard Carlson Title: Chief Executive Officer

	SMTP, INC.
	By_____________________ Name: Jonathan Strimling Title: Chief Executive Officer

SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT

EXHIBIT 2.2

EQUITY INTEREST PURCHASE AGREEMENT

BY AND AMONG

SMTP, INC.

INTERINBOX SA,

ERNEPH 2012A (PTY) LTD. dba ISMS,

ERNEPH 2012B (PTY) LTD. dba GRAPHICMAIL SOUTH AFRICA,

QUATTRO HOSTING LLC,

PENTASOFT LTD,

AND

THE SELLERS PARTY HERETO

DATED AS OF AUGUST 14, 2014

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS		1
1.1	Definitions	1
1.2	Interpretation	13
1.3	Disclosure Schedules	14

ARTICLE II SALE, PURCHASE AND PURCHASE PRICE		14
2.1	Sale and Purchase	14
2.2	Purchase Price and Payment.	14
2.3	Consolidated Net Assets Adjustment.	17
2.4	Earn-out Consideration	19
2.5	Withholding	20
2.6	Alternative Business Combination.	21

ARTICLE III CLOSING		21
3.1	Closing	21
3.2	Conditions Precedent to Obligations of Buyer	22
3.3	Conditions Precedent to Obligations of Sellers, Sellers' Representative and the Company Group	24

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLERS		25
4.1	Organization and Authority of Sellers and Sellers' Representative.	25
4.2	Authorization and Validity	25
4.3	Title to Shares	26
4.4	No Governmental Proceedings or Litigation	26
4.5	Capitalization	26
4.6	Corporate Organization	26
4.7	Non-Contravention; Consents	27
4.8	Financial Statements	27
4.9	Undisclosed Liabilities	28
4.10	Absence of Changes	28
4.11	Real Property and Movable Assets.	28
4.12	Contracts.	29
4.13	Accounts Receivable	31
4.14	Compliance with Laws; Licenses and Permits.	31
4.15	Litigation.	32
4.16	Employee Matters	32
4.17	Employee Benefits	33
4.18	Intellectual Property	35
4.19	Environment	36
4.20	Taxes	36
4.21	Insurance	39
4.22	Affiliate Transactions	39
4.23	Business Technology	40
4.24	No Broker	40
4.25	Absence of Certain Business Practices	40

ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER		41
5.1	Organization and Authority	41
5.2	Authorization and Validity	41
5.3	No Conflict; Consents	41
5.4	No Governmental Proceedings or Litigation	41
5.5	No Broker	41
5.6	No Financing Contingency	41
5.7	Valid Issuance of Common Stock	41

ARTICLE VI PRE-CLOSING MATTERS		42
6.1	Conduct of Business Prior to Closing	42
6.2	Exclusivity	44
6.3	Commercially Reasonable Efforts	45
6.4	Mutual Cooperation	45
6.5	Access to Information; Financial Statements	45
6.6	Intercompany Arrangements	45
6.7	Employment Agreements	46
6.8	Payoff of Company Debt	46
6.9	Updated Disclosure	46

ARTICLE VII POST-CLOSING MATTERS		46
7.1	Transfer Taxes	46
7.2	Conduct of Business with Respect to Taxes	46
7.3	Cooperation on Tax Matters	47
7.4	Preparation and Filing of Pre-Closing Period Tax Returns for each Member of the Company Group	47
7.5	Preparation and Filing of Straddle Period Tax Returns for each Member of the Company Group	48
7.6	Computation of Tax Liabilities	49
7.7	Tax Contests.	50
7.8	Tax Refunds	52
7.9	Adjustments to Purchase Price in Connection With Taxes	52
7.10	Payments in Connection with Taxes	52
7.11	Non-Compete	53
7.12	Non-Solicitation	53
7.13	Further Assurances	53
7.14	Release by Sellers	54
7.15	Proprietary Information	55
7.16	Reserved	55

ARTICLE VIII INDEMNIFICATION		55
8.1	Indemnification by the Company Group and Sellers	55
8.2	Indemnification by Buyer	56
8.3	Limitations on Liability.	57
8.4	Third Party Claims	58
8.5	Reserved	59
8.6	Escrow Funds	59

8.7	Value of Escrow Shares	60
8.8	Treatment of Indemnification Payments	60
8.9	Escrow Fees	60
8.10	No Double Recovery.	60

ARTICLE IX SELLERS' REPRESENTATIVE		60
9.1	Appointment of Sellers' Representative	60
9.2	Powers and Authority of Sellers' Representative	61
9.3	Seller Reserve Amount	62
9.4	Limitation of Liability	62
9.5	Successor Representatives	63
9.6	Buyer and Escrow Agent Reliance	63

ARTICLE X TERMINATION		63
10.1	Termination	63
10.2	Termination Fee.	64
10.3	Effect on Obligations	65

ARTICLE XI DISPUTE RESOLUTION		65
11.1	Arbitration	65
11.2	Good Faith	65
11.3	Procedure	66
11.4	Consent to Jurisdiction	66

ARTICLE XII MISCELLANEOUS		66
12.1	Costs	66
12.2	Notices	67
12.3	Entire Agreement	68
12.4	Waivers and Amendments	68
12.5	Binding Effect; Assignment	68
12.6	No Rescission	68
12.7	Governing Law	68
12.8	Specific Performance	69
12.9	Reserved	69
12.10	Waiver of Jury Trial	69
12.11	Construction	69
12.12	Agreement Severable	69
12.13	Counterparts	69
12.14	No Third Party Beneficiaries	69
12.15	Public Announcements	70
12.16	Confidentiality	70

iii

EQUITY INTEREST PURCHASE AGREEMENT

This EQUITY INTEREST PURCHASE AGREEMENT (together with all Schedules and Exhibits, this " Agreement "), dated as of August ___, 2014, is entered into by and among SMTP, Inc., (the " Buyer ") and each of the individual shareholders and entities listed on Exhibit A hereto (together, " Sellers ," and each a " Seller "), for the purchase of 100% of the equity interest owned, directly or indirectly, in InterInbox SA, a Swiss corporation, ERNEPH 2012A (Pty) Ltd. dba ISMS, a South African limited company, ERNEPH 2012B (Pty) Ltd. dba GraphicMail South Africa, a South African limited company, and Quattro Hosting LLC, a Delaware limited liability company (all such entities are referred to collectively as the " Companies " or the " Company Group ," and individually as a " Company "). The Company Group, Sellers and Buyer, are each referred to herein as a " Party " and collectively as, the " Parties ".

WHEREAS, Buyer, a U.S. publicly traded corporation, is a provider of cloud-based email delivery services for companies in over 130 countries and desires to expand its business domestically and internationally through strategic acquisition;

WHEREAS, Sellers are the record and beneficial owners of 100% of the Shares (as defined below) of the domestic and international Companies that collectively operate as the GraphicMail email marketing platform business that is distributed directly and indirectly through channel partners to its international client base of over 35,000 customers ; and

WHEREAS, Sellers desire to sell to Buyer, and Buyer desires to purchase from Sellers, the Shares , on the terms and subject to the conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the foregoing, the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and incorporating the above recitals with and into this Agreement, the Parties hereby agree as follows:

ARTICLE I
DEFINITIONS

1.1 Definitions . As used in this Agreement, the following terms have the following meanings:

" 2013 Reductio Factor " has the meaning provided in Section 2.2(b)(iii)(A) .

" 2014 Reduction Factor " has the meaning provided in Section 2.2(b)(iii)(B) .

" 2015 Financial Statements " has the meaning set forth in Section 2.4(a)(i) .

" AAA " has the meaning provided in Section 11.1 .

" Achieved Relevant 2015 Revenues " has the meaning provided in Section 2.4(b) .

" Actual Consolidated Net Assets " has the meaning provided in Section 2.3(d) .

" Actual Reduction Amount " has the meaning set forth in Section 2.2(b)(ii) .

" Actual Reduction Factor " has the meaning set forth in Section 2.2(b)(ii) .

" Additional Stock Payment " has the meaning set forth in Section 2.6 .

" Affiliate " of a specified Person means any other Person, which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person. For purposes of this definition, "control" of any Person means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting capital stock, by contract, or otherwise.

" Affiliate Transactions " has the meaning provided in Section 4.22 .

" Agreement " has the meaning provided in the Preamble.

" Alternative Transaction " has the meaning provided in Section 6.2 .

" Assets " has the meaning provided in Section 4.11(c) .

" Base Purchase Price " has the meaning provided in Section 2.2(a)(ii) .

" Basket " has the meaning provided in Section 8.3(b)(ii) .

" Business " means any business performed, conducted or proposed to be conducted, in each case presently and/or as of Closing, by any or all of the members of the Company Group as a going concern.

" Business Combination " has the meaning provided in Section 2.6 .

" Business Combination Expenses " has the meaning provided in Section 2.6 .

" Business Day " means any day other than: (a) a Saturday or Sunday; or (b) a day on which banks are required or authorized by Law to close in New York, New York.

" Business Technology " means all computer systems, telecommunication systems, software and/or hardware that is owned by, directly acquired by, or directly licensed to the Company.

" Buyer " has the meaning provided in the preamble.

" Buyer Indemnitees " has the meaning provided in Section 8.1 .

" Buyer Released Parties " has the meaning provided in Section 7.14 .

" Bylaws " means the bylaws or rules of self-governance (or other similar document), including any operating agreement or similar agreement and all amendments thereto adopted by the specified Person, in each case as in full force and effect from time to time.

" Cap " has the meaning provided in Section 8.3(b)(i) .

" Cash " means the aggregate consolidated amount of cash on hand and in banks (net of any bank overdrafts), cash equivalents, certificates of deposit, marketable securities and short term investments, as adjusted for any deposits in transit, outstanding checks, cash security deposits and cash collateral accounts, in each case without regard to any purchase accounting adjustments arising out of the Transactions.

" Cash Escrow Amount " has the meaning provided in Section 2.2(a)(i) .

" Change of Control Payments " means all severance, retention, change of control or similar payments payable by any member of the Company Group in connection with the Transactions.

" Charter " means the articles or certificate of incorporation, articles of association (or other documents of formation) and all amendments thereto adopted by the specified Person, in each case as in full force and effect from time to time.

" Claim " means suit, action, investigation, allegation, proceeding, inquiry or other claim or legal or administrative proceeding.

" Closing " has the meaning provided in Section 3.1 .

" Closing Cash Payment " has the meaning provided in Section 2.2(a)(i) .

" Closing Company Debt " means all Company Debt outstanding as of the Closing Date.

" Closing Date " has the meaning provided in Section 3.1 .

" Closing Statement " has the meaning provided in Section 2.3(c) .

" Closing Stock Payment " has the meaning provided in Section 2.2(a)(ii) .

" Code " means the United States federal Internal Revenue Code of 1986, as amended.

" CombinationCo " has the meaning provided in Section 2.6 .

" CombinationCo Stock " has the meaning provided in Section 2.6 .

" Common Stock " has the meaning provided in Section 2.2(a)(ii) .

" Company " has the meaning provided in the preamble.

" Company Benefit Plan " means (a) any employment, change in control, retention, severance or similar contract or arrangement (whether or not written) or any plan (including, without limitation, any " employee benefit plan ," as defined in Section 3(3) of ERISA, or any Foreign Plan), policy, practice, fund, program or contract or arrangement (whether or not written) providing for compensation, bonus, profit-sharing, stock option, or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, fringe benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, worker's compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance or other benefits), whether written or oral, that is maintained, administered, sponsored or contributed to, by, or required to be contributed by the Company Group, or with respect to which the Company Group could otherwise have any liability or obligation, whether direct or indirect, absolute or contingent, but excluding in each case any such employee benefit plan or arrangement providing statutory benefits pursuant to applicable law in jurisdictions outside of the United States; and (b) any defined benefit pension plan in respect of which the Company Group or any ERISA Affiliate could incur liability whether direct or indirect, absolute or contingent.

" Company Debt " means all of the following, whether issued to, extended to, applicable to, incurred by, or a contractual obligation of, the Company Group, but specifically excluding all inter-Company Group obligations incurred in the Ordinary Course of Business: (a) all obligations for borrowed money or in respect of banker's acceptances or letters of credit issued or created for the account or benefit of any member of the Company Group (for clarity, excluding unfunded letters of credit), whether secured or unsecured, whether or not represented by bonds, debentures, notes or other securities, and whether owing to banks, financial institutions or otherwise; (b) all indebtedness of any member of the Company Group created or arising under any conditional sale or other title retention Contract with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such Contract in the event of default are limited to repossession or sale of such property); (c) all indebtedness of any member of the Company Group secured by a purchase money mortgage or other lien to secure all or part of the purchase price of the property subject to such mortgage or lien; (d) all obligations under Leases which shall have been or must be, in accordance with GAAP, recorded as capital Leases in respect of which any member of the Company Group is liable as lessee; (e) all obligations under interest rate protection agreements (valued on a market quotation basis); (f) all obligations secured by a perfected lien or non-appealable judgment; (g) all indebtedness or obligations of the types referred to herein of a third Person secured by any Claim on any assets of any member of the Company Group, even though such member of the Company Group has not assumed or otherwise become liable for the payment thereof; (h) any Guaranty of a third Person in connection with any of the foregoing, even though such member of the Company Group has not assumed or otherwise become liable for the payment thereof; (i) all indebtedness to equity or other security holders, including Sellers, payment obligations with respect to stock appreciation rights, phantom stock obligations and similar obligations; and (j) any interest, fees and other expenses owed related to any of the foregoing, including prepayment premiums or penalties, consent fees, or other amounts with respect to such indebtedness becoming due as a result of the Transactions; but excluding Company Transaction Costs.

" Company Group " has the meaning set forth in the preamble.

" Company Group Intellectual Property " means all of the Intellectual Property owned or licensed by, purported to be owned or licensed by, or filed in the name of, any member of the Company Group.

" Company Group's Knowledge " means the actual knowledge of the Persons listed on Annex I hereto, in each case with such additional knowledge as such Person would acquire after having undertaken due inquiry and reasonable investigation.

" Company Insurance Policies " has the meaning provided in Section 4.21 .

" Company Third Party Consents " has the meaning provided in Section 4.7(b) .

" Company Transaction Costs " means all Change of Control Payments and all of the unpaid fees, expenses and other similar amounts for the provision of services prior to the Closing that have been or are expected to be incurred on behalf of any member of the Company Group, or Sellers' Representative on or prior to the Closing Date in connection with or arising from the Transactions, and any fees of Sellers' counsel, brokers or finders, accountants, investment bankers and other professional advisors and any fees paid or payable to any Governmental Authority or other Person, limited however, to obligations of the members of the Company Group, Sellers' Representative or Sellers or for obligations for which Buyer could become liable in any manner resulting from the consummation of the Transactions.

" Conclusive Statement " has the meaning provided in Section 2.3(d) .

" Consolidated Net Assets " means Current Assets, plus Long-term Liquid Assets, minus Liabilities.

" Consolidated Net Assets Target " has the meaning provided in Section 2.3(b) .

" Contingent IP Liability " means any liability, cost or and expense (including reasonable attorneys' fees) related to or arising out of claims for patent infringement threatened or made by that certain entity described on Schedules 4.15(a) .

" Contracts " means understandings, agreements, commitments, obligations, arrangements, indentures, undertakings, deeds, mortgages, options, loans, Leases or licenses, written or oral.

" Current Assets " means the current assets of the Company Group, including, for the avoidance of doubt, Cash and cash equivalents, accounts receivable, inventory, investments, and prepaid expenses, but excluding inter-company receivables, as determined in accordance with GAAP.

" Customers " has the meaning provided in Section 2.4(b) .

" Disclosure Schedules " has the meaning provided in the introductory paragraph to Article IV .

" Disputed Items " has the meaning provided in Section 2.3(c) .

" Due Date " means the applicable date that a Person is required to file a Tax Return, taking into account all applicable extensions.

" Earn-out Cash Component " has the meaning set forth in Section 2.4(a)(i) .

" Earn-out Consideration " has the meaning set forth in Section 2.4(a) .

" Earn-out Revenue Target " has the meaning set forth in Section 2.4(b)(i) .

" Earn-out Stock Component " has the meaning set forth in Section 2.4(a)(ii) .

" Employee " has the meaning provided in Section 4.16(a) .

" Employment Agreements " has the meaning provided in Section 3.2(a)(xii).

" Employment NDAs" has the meaning provided in Section 7.15 .

" Enforceability Exceptions " has the meaning provided in Section 4.2 .

" Environmental Rule " means any Law that relates to Hazardous Substances, pollution, restoration, or protection of the environment (including ambient air, indoor air, water vapor, surface water, groundwater, wetlands, drinking water supply, land surface, or subsurface strata and biota), and natural resources, including without limitation any Law relating to the generation, use, processing, treatment, storage, release or threatened release, transport, handling, presence, recycling, or disposal of, or exposure to Hazardous Substances and any common laws of nuisance, negligence and strict liability relating thereto, together with all rules, regulations and orders issued thereunder, as any of the same may be amended.

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

" ERISA Affiliate " means any trade or business (whether or not incorporated) which, together with the Company would be treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

" Escrow Account " has the meaning set forth in Section 2.2(a)(i) .

" Escrow Agent " means that certain escrow agent to be mutually agreed upon by the Parties.

" Escrow Agreement " means that certain escrow agreement to be mutually agreed upon by the Parties.

" Escrow Amount " has the meaning set forth in Section 2.2(a)(i) .

" Escrow Shares " has the meaning set forth in Section 2.2(a)(ii) .

" Estimated Consolidated Net Assets " has the meaning set forth in Section 2.3(a) .

" Estimated Reduction Amount " has the meaning set forth in Section 2.2(b)(i) .

" Exchange Rate " means, as of a date, the foreign exchange rate between the US dollar and any applicable relevant non-U.S. currency, which rate is obtained from either oanda.com or xe.com.

" Financial Reference Date " has the meaning provided in Section 4.9 .

" Financial Statements " has the meaning provided in Section 4.8(a) .

" FIRPTA Certificate " has the meaning set forth in Section 3.2(a)(xi) .

" Foreign Plan " has the meaning provided in Section 4.17(e) .

" Fundamental Representations " means the representations and warranties contained in Section 4.1 , Section 4.2 , Section 4.3 , Section 4.5 , Section 4.6 , Section 4.15 , Section 4.20 , Section 4.24 , Section 5.1 , Section 5.2 and Section 5.5 .

" GAAP " means United States generally accepted accounting principles, applied on a consistent basis; in no event shall any change to GAAP occurring after the date of this Agreement have any application to this Agreement or to any calculations made (or to be made) under this Agreement.

" General Covenants " means the covenants, agreements, and obligations contained in Article VI , but excluding Section 6.1 , Section 6.2 and Section 6.8 .

" Governmental Authority Official " has the meaning set forth in Section 4.25 .

" Guaranty " collectively means: (a) any guaranty of the payment or performance of any indebtedness or other obligation of any obligor; (b) any other arrangement whereby credit is extended to one obligor on the basis of any promise or undertaking of another Person, whether that promise or undertaking is expressed in terms of an obligation to pay the indebtedness of such obligor, or to purchase any obligation owed by such obligor, or to purchase or lease assets under circumstances that would enable such obligor to discharge one or more of its obligations, or to maintain the capital, working capital, solvency or general financial condition of such obligor, whether or not such arrangement is disclosed in the balance sheet of such other Person or is referred to in a footnote thereto; and (c) any other arrangement whereby the performance of another Person is assumed.

" Hazardous Substance " means any substance, pollutant, contaminant, chemical, oil, material of environmental concern, constituent, or toxic or hazardous substance or waste the generation, use, processing, treatment, storage, release, transport or disposal of which is defined by, any Environmental Rule; all pollutants, contaminants, hazardous, dangerous or toxic chemical materials, wastes or any other substance, including any industrial process or pollution control waste (whether or not hazardous within the meaning of the Resource Conservation and Recovery Act, as amended) which could pose a hazard to the environment or the health and safety of any Person, or impair the use or value of any portion of the Leased Real Property or any other property, including but not limited to asbestos or asbestos-containing materials, radioactive materials, and polychlorinated biphenyls.

" Indemnitees " has the meaning provided in Section 8.2 .

" Indemnitor " has the meaning provided in Section 8.4(b) .

" Indemnity Escrow Funds " has the meaning provided in Section 8.6 .

" Indemnity Escrow Period " has the meaning provided in Section 8.6 .

" Intellectual Property " means: (a) Marks and rights thereto including, without limitation, registered Marks, applications for Marks and common law Marks; (b) patents, patent applications, patent disclosures and inventions, including continuations, divisional, continuations-in-part, renewals and reissues for any of the foregoing; (c) copyrights (registered or unregistered) and copyrightable works and registrations and applications for the registration thereof; (d) mask works and registrations and applications for registration thereof; (e) inventions, discoveries, processes, trade secrets, know how, methods, designs, drawings specifications, formulations, testing and standard operating procedures, maintenance and servicing manuals, quality control manuals and procedures and other intellectual property rights and intangible property, whether or not patentable, all useful information relating to the foregoing items, including, without limitation, technology, engineering, drawings, art work, reports, design information and practices, flow charts, diagrams, manuals, descriptive texts and programs, underlying tapes, documentation, and business information maintained in electronic format (the know-how); (f) computer software, data, data bases and documentation thereof; (g) all rights related to the Intellectual Property described in clauses (a) through (f) of this definition; and (h) all other intellectual and industrial property rights of any sort throughout the world, including all applications, registrations, issuances and the like with respect thereto.

" Internal Revenue Service " or " IRS " means the United States Internal Revenue Service.

" Law " or " Laws " means, at the applicable time, each provision of any then currently existing federal, state, regional, provincial, local or foreign laws, including any statute, standard, ordinance, act, code, order, rule, regulation, constitutional provision, decree, promulgation or common law (including, without limitation, Environmental Rules) of any Governmental Authority, and each term of any order, judgment, award or decree then currently existing of any court, arbitrator or tribunal of any Governmental Authority (including, without limitation, the United States Patent and Trademark Office).

" Leased Real Property " has the meaning provided in Section 4.11(b) .

" Leases " has the meaning provided in Section 4.11(b) .

" Liabilities " means the total consolidated liabilities of the Company Group as determined in accordance with GAAP, but excluding (i) that certain loan between Inter-Cloud and Pentasoft, which will be repaid in full on or before Closing by Sellers, and (ii) Contingent IP Liability.

" Liens " means any and all liens, charges, mortgages, pledges, easements, encumbrances, security interests, matrimonial or community interests, tenancy by the entirety Claims, adverse Claims, or any other title defects or restrictions of any kind.

" Lock-Up " has the meaning provided in Section 2.2(c) .

" Long-term Liquid Assets " means any assets of the Company Group that are not Current Assets, would be classified as long-term in accordance with GAAP, and can be converted to cash immediately using existing markets, including marketable equity or debt securities.

" Loss " or " Losses " has the meaning provided in Section 8.1 .

" Mark " means any trademark, service mark, trade dress, trade name, internet website domain name (with respect to the domain name, to the extent used to identify the source of goods and services), logo and registered, assumed or fictitious names and all applications and registrations therefor.

" Material Adverse Effect " means any event, change, circumstance or effect that is, or would reasonably be expected to be materially adverse to the business, financial condition, assets, operations or liabilities of the Company Group taken as a whole, excluding, however, any event, change, circumstance or effect resulting or arising solely from: (a) changes in business or economic conditions affecting the economy of any jurisdiction in which a member of the Company Group operates or global economy or capital or financial markets generally or changes in conditions in the industries in which any member of the Company Group operates; (b) effects or changes related to or resulting from any event as to which Buyer has provided written consent hereunder (provided that such consent is not the result of any material misstatement or material omission by the Company or Sellers); (c) national or international political or social conditions, including the engagement by any nation or state in which any member of the Company Group operates in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack, including but not limited to upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any of its military installations, equipment or personnel; (d) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index); (e) changes in accounting requirements or Law, or in each case, in the interpretation thereof, after the date hereof; or (f) the consummation of the Transactions or any actions by any Party taken pursuant to this Agreement or any actions taken by the Company Group at the request of Buyer; except in the case of clauses (a), (d), or (e), such event or change which disproportionately affects the Companies when compared to other similarly situated Persons operating in the same industries and in the same geographic locations in which the Companies operate.

" Material Contracts " has the meaning provided in Section 4.12(a) .

" Multiemployer Plan " has the meaning provided in Section 4.17(c) .

" NDA " has the meaning provided in Section 12.16 .

" Neutral Arbitrator " has the meaning provided in Section 2.3(d) .

" Non-Compete Restrictive Period " has the meaning provided in Section 7.11 .

"Ordinary Course of Business " means the ordinary course of business of the Company Group, consistent with past practices.

" Party " or " Parties " have the meanings provided in the Preamble.

" Pay-Off Documents " means (i) payoff letters or other reasonable documentation for the repayment of all Closing Company Debt, in a form reasonably acceptable to Buyer, which shall indicate that the Company Group lenders have agreed to release immediately all applicable Liens relating to the assets and property of all members of the Company Group, including the redelivery of any stock certificates held pursuant to any such terminated stock pledge agreements and (ii) statements of satisfaction in full from any recipient of any member of the Company Group Transaction Costs or other reasonable documentation evidencing same.

" Payout Percentage " has the meaning set forth in Section 2.4(b)(ii) .

" Pension Plan " has the meaning provided in Section 4.17(c) .

" Permit " or " Permits " has the meaning provided in Section 4.14(b) .

" Permitted Lien " means (i) those items set forth in Schedule 4.11(b) , (ii) statutory Liens for current Taxes not yet due and payable or, as set forth on Schedule 1.1(c) , being contested in good faith by appropriate procedures and for which appropriate reserves have been reflected in the Financial Statements in accordance with GAAP; (iii) mechanics, carriers', workmen's, repairmen's or other like Liens arising or incurred in the Ordinary Course of Business; (iv) easements, rights of way, zoning ordinances and other similar encumbrances affecting Real Property; or (v) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties as set forth on Schedule 1.1(d) .

" Person " means an individual, partnership, limited partnership, limited liability partnership, corporation, limited liability company, association, trust, joint venture, unincorporated organization, and any Governmental Authority or other legal entity or organization of any kind.

" Post-Closing Period " means any taxable period beginning after the Closing Date.

" Post-Closing Taxes " means any and all Taxes imposed on any member of the Company Group for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date (determined in accordance with Section 7.6(b) ).

" Pre-Closing Period Tax Return " means any Tax Return relating to a Pre-Closing Tax Period.

" Pre-Closing Tax Period " means any taxable period ending on or before the Closing Date.

" Pre-Closing Taxes " means, without duplication: (a) any and all Taxes of or imposed on any member of the Company Group for any and all Pre-Closing Tax Periods; (b) any and all Taxes of or imposed on any member of the Company Group for any and all portions of Straddle Periods ending on the Closing Date (determined in accordance with Section 7.6(b) ); (c) any and all Taxes of an "affiliated group" (as defined in Section 1504 of the Code) (or affiliated, consolidated, unitary, combined or similar group under applicable state, local or foreign Law) of which any member of the Company Group (or any predecessor of any member of the Company Group) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local or foreign Law); (d) any and all Transfer Taxes required to be paid by Sellers pursuant to Section 7.1 ; (e) any and all Taxes of or imposed on Buyer or any of its Affiliates (including any member of the Company Group) as a result of an inclusion under Section 951(a) of the Code (or any similar provision of state or local Law) attributable to (i) "subpart F income," within the meaning of Section 952 of the Code (or any similar provision of state or local Law) received or accrued on or prior to the Closing Date that is related or attributable to any member of the Company Group or (ii) the holding of "United States property," within the meaning of Section 956 of the Code (or any similar provision of state or local Law) on or prior to the Closing Date that is related or attributable to any member of the Company Group, in each case, determined as if the taxable years of the members of the Company Group ended on the Closing Date; and (f) any and all Taxes required to be deducted and withheld with respect to payments made by Buyer to Sellers (or by any member of the Company Group to Sellers) (or in connection with the Transactions, including the exercise of options or payment of stock) pursuant to applicable Tax Laws in connection with the Transactions; but in each case excluding any and all Business Combination Expenses. Notwithstanding anything to the contrary set forth herein, Pre-Closing Taxes means the amount of Taxes which would have been payable or paid without taking into account any carryback of any Tax attribute (including any net operating loss carryback) arising in any Tax period ending after the Closing.

" Proceeding " means any judicial, administrative or arbitral actions, suits or proceedings (public or private) by or before any Governmental Authority or before any arbitrator, mediator or other alternative dispute resolution provider pursuant to any collective bargaining agreement, contractual agreement or Law, and including any audit or examination, or other administrative or court proceeding with respect to Taxes or Tax Returns.

" Proprietary Information " has the meaning provided in Section 7.15

" Purchase Price " has the meaning provided in Section 2.2 .

" Reduction Factor " has the meaning provided in Section 2.2(b) .

" Reduction Statement " has the meaning set forth in Section 2.2(b)(ii) .

" Regulatory Consents and Notices " has the meaning provided in Section 4.7(b) .

" Released Claims " has the meaning provided in Section 7.14 .

" Required Consents " has the meaning provided in Section 3.2(f) .

" Resolution Period " has the meaning provided in Section 2.3(c) .

" Restrictive Covenants " has the meaning provided in Section 3.2(a)(xii) .

" Retained Claims " has the meaning provided in Section 7.14 .

" Rules " has the meaning provided in Section 11.1 .

" Seller Indemnitees " has the meaning provided in Section 8.2 .

" Seller Releasor " has the meaning provided in Section 7.14 .

" Seller Reserve Amount " has the meaning provided in Section 2.2(a)(i) .

" Sellers " has the meaning provided in the Preamble.

" Sellers' Representative " has the meaning provided in Section 9.1 .

" Shares " means all of the issued and outstanding shares of capital stock or equity interests of each entity comprising the Company Group.

" SMTP Service Revenue " has the meaning provided in Section 2.4(b) .

" Stock Escrow Amount " has the meaning provided in Section 2.2(a)(i) .

" Straddle Period " means any taxable year or period beginning on or before and ending after the Closing Date.

" Straddle Period Tax Return " means any Tax Return relating to a Straddle Period.

" Survival Period " has the meaning provided in Section 8.3(a) .

" Tax " or " Taxes " means any and all: (a) taxes, charges, withholdings, fees, levies, imposts, duties and governmental fees or other like assessments or charges of any kind whatsoever in the nature of taxes, imposed by any United States federal, state, local or foreign or other Taxing Authority (including those related to income, net income, gross income, receipts, capital, windfall profit, severance, property (real and personal), production, sales, goods and services, use, business and occupation, license, excise, registration, franchise, employment, payroll (including social security contributions), deductions at source, withholding, alternative or add-on minimum, intangibles, ad valorem, transfer, gains, capital gains, stamp, customs, duties, estimated, transaction, title, capital, paid-up capital, profits, premium, value added, recording, inventory and merchandise, business privilege, federal highway use, commercial rent or environmental tax, and any liability under unclaimed property, escheat, or similar Laws); (b) interest, penalties, fines, additions to tax or additional amounts imposed by any Taxing Authority in connection with (i) any item described in clause (a), or (ii) the failure to comply with any requirement imposed with respect to any Tax Return; and (c) liability in respect of any items described in clause (a) and/or (b) payable by reason of contract (including any Tax Sharing Agreement), assumption, transferee, successor or similar liability (including bulk transfer or similar Laws), operation of law (including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local, or foreign Law)) or otherwise.

" Tax Claim Notice " has the meaning set forth in Section 7.7(a) .

" Tax Contest " has the meaning set forth in Section 7.7(a) .

" Tax Return " means any return, declaration, form, report, Claim, informational return (including all Forms 1099) or statement required to be filed with any Governmental Authority with respect to Taxes, including any schedule or attachment thereto or amendment thereof.

" Tax Sharing Agreement " means any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar contract or arrangement, whether written or unwritten (including, without limitation, any such agreement, contract or arrangement included in any purchase or sale agreement, merger agreement, joint venture agreement or other document).

" Taxing Authority " or " Tax Authorities " means, with respect to any Tax or Tax Return, any Governmental Authority exercising Tax authority that imposes such Tax or requires a Person to file such Tax Return and the agency (if any) charged with the collection or assessment of such Tax or the administration of such Tax Return, in each case, for such Governmental Authority.

" Termination Fee " has the meaning provided in Section 10.2 .

" Third Party Claim " means any Claim which is asserted or threatened by a Person other than the Parties, their successors and permitted assigns against any Indemnitee or to which any Indemnitee is subject.

" Transactions " means the transactions contemplated by this Agreement, including, for the avoidance of doubt, the purchase and sale of the Shares in accordance with this Agreement.

" Transfer Taxes " has the meaning set forth in Section 7.1 .

" Treasury Regulations " means the Treasury Regulations promulgated under the Code, as such Treasury Regulations may be amended from time to time. Any reference herein to a particular provision of the Treasury Regulations means, where appropriate, the corresponding successor provision.

1.2 Interpretation . In this Agreement (unless the context requires otherwise):

(a) All references to statutory provisions shall be construed as meaning and including references to (i) any statutory modification, consolidation or re-enactment made after the date of this Agreement and for the time being in force; (ii) all statutory instruments or orders made pursuant to a statutory provision; and (iii) any statutory provision of which these statutory provisions are a consolidation, re-enactment or modification;

(b) Words denoting the singular shall include the plural and words denoting any gender shall include all genders;

(c) Headings, subheadings, titles, subtitles to Articles, Sections, sub-sections, clauses and paragraphs are for information only, and shall not form part of the operative provisions of this Agreement or the annexures hereto and shall be ignored in construing the same;

(d) References to recitals, Sections, Articles, clauses, schedules or exhibits are, unless the context otherwise requires, references to recitals, Sections, articles, clauses, schedules and exhibits to this Agreement ;

(e) The words " include " and " including " are to be construed without limitation;

(f) The term " hereof ," " herein ," " hereto ," " hereunder ," or similar expressions used in this Agreement mean and refer to this Agreement and not to any particular Section in this Agreement ;

(g) All references to Contracts , documents or other instruments include (subject to all relevant approvals) a reference to that Contract , document or instrument as amended, supplemented, substituted, novated, or assigned from time to time;

(h) The word " or " is not exclusive and is deemed to have the meaning " and/or ";

(i) All references to payments in this Agreement shall be payments in U.S. dollars; and

(j) Any capitalized term used but not defined in a Schedule or Exhibit to this Agreement shall have the meaning set forth in this Agreement .

1.3 Disclosure Schedules . The Parties acknowledge and agree that any exception to a representation and warranty contained in this Agreement that is disclosed in any section of the Disclosure Schedules under the caption referencing such representation and warranty shall be deemed to also be an exception to each other representation and warranty of the Company Group contained in this Agreement to the extent that it would be reasonably apparent to Buyer that such exception is applicable to such other representation and warranty.

ARTICLE II
SALE, PURCHASE AND PURCHASE PRICE

2.1 Sale and Purchase . Subject to the satisfaction of the conditions precedent set forth in Section 3.2 and Section 3.3 , on the Closing Date (a) Sellers shall sell, transfer and assign to Buyer, or to its affiliated company as designated by the Buyer on or before the Closing Date, all of Sellers' right, title and interest in the Shares, in exchange for the payment by Buyer of the Purchase Price, and (b) Buyer shall purchase and take delivery of the Shares from Sellers. The Shares shall be sold, transferred and delivered to Buyer by Sellers at the Closing free and clear of any and all Liens, other than Permitted Liens.

2.2 Purchase Price and Payment.

(a) The aggregate purchase price payable by Buyer at Closing as consideration for the sale and transfer of the Shares , subject to adjustment as contemplated herein , (the " Purchase Price " ) shall be payable as follows:

(i) $2,600,000 in cash (A) minus twenty-two and one half percent (22.5%) of the $2,600,000 in cash (the " Cash Escrow Amount ") that shall be paid to the account(s) designated by the Escrow Agent in writing in advance of Closing (the " Escrow Account "), which the Escrow Agent shall manage and disburse in accordance with the terms of the Escrow Agreement , (B) minus $100,000 (the " Seller Reserve Amount ") that shall be deposited in a segregated escrow account controlled by the Sellers' Representative , (C) plus or minus , as applicable, one-half of any adjustments pursuant to Section 2.3(b) , (D) minus any cash converted to Common Stock pursuant to Section 2.6 , and (E) minus Closing Company Debt and Company Transaction Costs (the " Closing Cash Payment "), which Closing Cash Payment shall be paid by wire transfer of immediately available funds to an account designated at least two (2) Business Days prior to the Closing by Sellers' Representative for further distribution to Sellers in accordance with Schedule 2.2(a)(i) .

(ii) $2,600,000 in Common Stock of Buyer (A) minus twenty-two and one-half percent (22.5%) of the $2,600,000 in common stock of Buyer (the " Stock Escrow Amount ", and together with the Cash Escrow Amount, the " Escrow Amount "), such shares of Common Stock (the " Escrow Shares ") shall be delivered to the Escrow Account , which the Escrow Agent shall manage and disburse in accordance with the terms of the Escrow Agreement , (B) plus or minus , as applicable, one-half of any adjustments pursuant to Section 2.3(b) , and (C) plus 127.5% of any cash converted to Common Stock pursuant to Section 2.6 (the " Closing Stock Payment ," and together with the Closing Cash Payment , the " Base Purchase Price "); which Closing Stock Payment shall be paid by delivery of common stock of Buyer (" Common Stock ") to the Sellers at Closing , which Shares shall be allocated among the Sellers in the percentages set forth on Schedule 2.2(a)(i) . The number of shares of the Common Stock to be paid to Sellers shall be determined by dividing the Closing Stock Payment (as may be adjusted) by the Buyer 's average market closing price on NASDAQ of the preceding ten (10) days immediately prior to Closing ; and

(iii) the Earn-out Consideration pursuant to Section 2.4 , if applicable.

(b) The Base Purchase Price shall be subject to adjustment as provided in this Section 2.2(b) .

(i) At Closing the Base Purchase Price payable by Buyer shall be decreased by the amount determined by multiplying the Base Purchase Price by (100% minus the Reduction Factor as estimated, in good faith, by Sellers' Representative) (the " Estimated Reduction Amount "). The Estimated Reduction Amount shall be deducted pro rata from the Closing Cash Payment and the Closing Stock Payment (including any Additional Stock Payment) based on the respective proportions of the Base Purchase Price made up by each.

(ii) Promptly following the completion of the 2014 audited financial statements for the Company Group, Buyer , if the Closing has occurred, or Sellers' Representative, if the Closing has not occurred, will deliver to the other party a written statement (the " Reduction Statement ") setting forth the Actual Reduction Factor , the Actual Reduction Amount , and the amount required to be paid by Buyer to Sellers or released from the Escrow Amount to Buyer pursuant to this Section 2.2(b)(ii) . If the Actual Reduction Amount is less than the Estimated Reduction Amount, Buyer shall pay the difference to Sellers' Representative for further distribution to Sellers in accordance with Schedule 2.2(a)(i) within ten (10) days after delivery or receipt of the Reduction Statement, as applicable . If the Actual Reduction Amount is greater than the Estimated Reduction Amount, Buyer shall be entitled to immediately collect the difference from the Escrow Account in accordance Article VIII and the Escrow Agreement .

(iii) " Reduction Factor " means the average of the 2013 Reduction Factor and the 2014 Reduction factor, which shall be calculated based on the audited combined revenues, net income and EBITDA of the Company Group on a GAAP basis for the respective years as follows:

(A) The " 2013 Reduction Factor " means a percentage calculated as follows using the combined 2013 revenues and 2013 net income of the Company Group :

2013 Reduction Factor = (2013 Revenues + Net Income) / (($3,975,000 + $518,000) * 95%)

If the above calculation results in a 2013 Reduction Factor of greater than 100%, the 2013 Reduction Factor will be reduced to 100%.

(B) The " 2014 Reduction Factor " means the percentage calculated as follows:

The 2014 Reduction Factor will be determined as the average of an earnings based reduction factor and a revenue based reduction factor:

The 2014 Reduction Factor =

The average of these two values:

(the estimated combined 2014 Revenues / 4,377,000)

and

(estimated combined 2014 EBITDA / $ 764,000)

or, if more favorable to Sellers (meaning the following value):

(the estimated combined 2014 Revenues / 4,377,000)

In the calculation of both the estimated and the actual (audited) combined EBITDA for 2014, the following costs will be excluded: legal, advisory and audit costs associated with the Transactions, severance costs of employees terminated after execution of this Agreement, non-structural salary and fees paid to Sellers (also including the payments of, in total, 72,000 ZAR to Isa, as previously disclosed), excess rent associated with overlapping leases, reserves and legal costs associated with (alleged) patent infringement liabilities (as previously disclosed), including any Contingent IP Liability, the Participation Bonus as paid to the four iSMS minority shareholders in January 2014, any payments as a result of the Transactions or otherwise made pursuant to this Agreement, and payments to shareholders that will not continue post-Closing.

The Estimated Combined EBITDA for 2014 will be estimated based on the actual YTD operating results as determined through the last month ending at least 30 days prior to Closing using a methodology consistent with prior practices at the Company Group.

The Actual Reduction Amount will be added to the maximum amount of the Earn-Out Consideration to provide Sellers the opportunity to recoup amounts lost by virtue of applying the Reduction Factor.

(c) Sellers agree that twenty percent (20%) of the shares of Common Stock distributed to Sellers at Closing shall be locked up for the period from Closing through August 31, 2015 (the " Lock-Up ") pursuant to a mutually agreeable agreement . The Shares that are subject to the Lock-Up shall be separate and apart from the shares comprising the Stock Escrow Amount .

(d) Buyer will pay, or cause to be paid at Closing , the amounts deducted from the Base Purchase Price for Closing Company Debt and Company Transaction Costs as have been set forth in writing by Sellers' Representative at least five (5) Business Days (and updated on the Closing Date ) prior to Closing and for which Pay-Off Documents have been delivered to Buyer .

2.3 Consolidated Net Assets Adjustment.

(a) Five (5) days prior to Closing , the Company Group shall cause to be prepared and delivered to Buyer a statement setting forth a good faith estimate of the Consolidated Net Assets of the Company Group as of the close of business on the Closing Date (the " Estimated Consolidated Net Assets "), as reasonably accepted by Buyer . The Estimated Consolidated Net Assets will be prepared in accordance with GAAP using, to the extent applicable the Exchange Rate , and shall be in the form set forth in Schedule 2.3(a) .

(b) If the Estimated Consolidated Net Assets is less than $100,000 or, if Buyer pursues a Business Combination in connection with the Closing, $75,000 (the " Consolidated Net Assets Target "), and less than $100,000 of the Company Group's assets is cash, then the Base Purchase Price shall be reduced by the difference between the Consolidated Net Assets Target and the Estimated Consolidated Net Assets. If the Estimated Consolidated Net Assets is greater than the Consolidated Net Assets Target, then the Base Purchase Price shall be increased by the difference between the Consolidated Net Assets Target and the Estimated Consolidated Net Assets. One-half of any adjustment required by this Section 2.3(b) shall be applied to the portion of the Base Purchase Price allocated to the Closing Cash Payment and one-half shall be applied to the portion of the Base Purchase Price allocated to the Closing Stock Payment. In the event that there is no Business Combination, any adjustment required by this Section 2.3(b) shall be applied pro rata to Closing Cash Payment and the Closing Stock Payment based on the respective proportions of the Base Purchase Price made up by each, and in the event of a Business Combination, 100% of any adjustment required by this Section 2.3(b) shall be applied to the portion of the Base Purchase Price allocated to the Closing Stock Payment.

(c) Within sixty (60) days after the Closing Date, Buyer shall cause to be prepared and delivered to Sellers' Representative a statement setting forth the Consolidated Net Assets of the Company Group, determined in accordance with GAAP, and using to the extent applicable the Exchange Rate, as of the close of business on the Closing Date (the " Closing Statement ", which statement shall be in the form set forth in Schedule 2.3(a) ). After receipt of the Closing Statement , Sellers shall have thirty (30) days to review the Closing Statement . Unless Sellers' Representative delivers written notice to Buyer setting forth the specific items disputed by Sellers on or prior to the thirtieth (30th) day after the date of the Closing Statement , (delivered in accordance with Section 12.2 ) , Sellers will be deemed to have accepted and agreed to the Closing Statement and such Closing Statement (and the calculations contained therein) will be final, binding and conclusive. If Sellers' Representative notifies Buyer of Sellers ' objections to specific items contained in the Closing Statement ( or specific calculations contained therein) within such thirty (30) day period, Buyer and Sellers' Representative shall, within thirty (30) days following delivery of such notice by Sellers' Representative to Buyer (the " Resolution Period "), attempt in good faith to resolve their differences with respect to the disputed items ( or calculations) specified in the notice (the " Disputed Items "), and all other items (and all calculations relating thereto) will be final, binding and conclusive. Any resolution by Buyer and Sellers' Representative during the Resolution Period as to any Disputed Item shall be set forth in writing and will be final, binding and conclusive.

(d) If Buyer and Sellers' Representative do not resolve all Disputed Items by the end of the Resolution Period ( or such longer period as they may mutually agree), then all Disputed Items remaining in dispute will be submitted within thirty (30) days after the expiration of the Resolution Period to such U.S. national independent accounting firm mutually acceptable to Buyer and Sellers' Representative (the " Neutral Arbitrator "). The Neutral Arbitrator shall act as an arbitrator to determine only those Disputed Items remaining in dispute, consistent with this Section 2.3(d) , and shall request a statement from Buyer , on the one hand, and Sellers' Representative on behalf of Sellers , on the other hand, regarding such Disputed Items . In resolving each Disputed Item , the Neutral Arbitrator may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by any Party or less than the lowest value for such Disputed Item claimed by any Party . All fees and expenses of the Neutral Arbitrator in connection with its work on the Disputed Items shall be allocated between Buyer , on the one hand, and Sellers , on the other hand, in the same proportion that the aggregate amount of the Disputed Items so submitted to the Neutral Arbitrator that is unsuccessfully disputed by each such Party (as finally determined by the Neutral Arbitrator ) bears to the total amount of such Disputed Items so submitted. Buyer and Sellers shall give the Neutral Arbitrator reasonable access to documents, records, work papers, facilities and personnel as reasonably necessary to perform its function as arbitrator. If any Party fails to submit a supporting brief regarding any Disputed Item submitted to the Neutral Arbitrator within the time set forth above or otherwise fails to give the Neutral Arbitrator access as reasonably requested, then the Neutral Arbitrator shall render a decision based solely on the evidence timely submitted and the access afforded to the Neutral Arbitrator by Buyer and Sellers' Representative. The Parties will use commercially reasonable efforts to cause the Neutral Arbitrator to deliver to Buyer and Sellers' Representative a written determination (such determination to include a work sheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Neutral Arbitrator by Buyer and Sellers ) of the Disputed Items submitted to the Neutral Arbitrator within thirty (30) days of the Neutral Arbitrator 's receipt of such Disputed Items , which determination will be final, binding and conclusive absent manifest error. The final, binding and conclusive Closing Statement based either upon agreement or deemed agreement by Buyer and Sellers or the written determination delivered by the Neutral Arbitrator in accordance with this Section 2.3(d) shall be the " Conclusive Statement " and the Consolidated Net Assets amount set forth thereon shall be the " Actual Consolidated Net Assets ."

(e) If the Actual Consolidated Net Assets is less than the Estimated Consolidated Net Assets , Sellers' Representative shall cause, within five (5) Business Days after determination thereof, the Escrow Agent to pay the amount of the difference between such values from the Escrow Account to Buyer by wire transfer of immediately available funds to the account designated in writing by the Buyer , following actual or deemed receipt of the Conclusive Statement . If the Actual Consolidated Net Assets is greater than the Estimated Consolidated Net Assets , Buyer shall, within five (5) Business Days after determination thereof, pay the amount of the difference between such values to Seller's Representative by wire transfer of immediately available funds to the account designated in writing by Sellers' Representative for further distribution to Sellers in accordance with Schedule 2.2(a)(i) , following actual or deemed receipt of the Conclusive Statement.

(f) The Closing Statement and the determinations and calculations contained therein shall be prepared and calculated on a consolidated basis for the Company Group in accordance with GAAP as in effect on the date of this Agreement , and using to the extent applicable the Exchange Rate , except that such statements, calculations and determinations shall not include any purchase accounting.

(g) Any payments made by Sellers pursuant to this Section 2.3 shall be treated for all Tax purposes as increases or reductions to the Purchase Price paid for the Shares .

2.4 Earn-out Consideration .

(a) In addition to the Base Purchase Price , Sellers shall be entitled to additional earn-out consideration (the " Earn-out Consideration ") in the amount of up to $600,000 plus the Actual Reduction Amount , which shall be earned and is payable as follows:

(i) $50% in cash (the " Earn-out Cash Component "), subject to adjustment based on certain post- Closing revenue achievement as described in Section 2.4(b) , and payable within ten (10) days of the completion of the audit of the financial statements of Buyer for the fiscal year ending December 31 , 2015 (the " 2015 Financial Statements "); and

(ii) $50% in Common Stock (the " Earn-out Stock Component "), subject to adjustment based on certain post- Closing revenue achievement as described in Section 2.4(b) , the number of shares of Common Stock of which shall be determined by dividing the Earn-out Stock Component (as may be adjusted) by the average market closing price on NASDAQ of the ten (10) trading days immediately prior to the date of issuance, and issuable within ten (10) days of the completion of the audit of the 2015 Financial Statements ; provided , however , that Buyer may elect to pay to Sellers the Earn-out Stock Component in the form of cash instead of Common Stock , and Buyer may elect to defer any necessary or required shareholder approval of the Earn-out Stock Component until after Closing .

(b) The adjustments to the Earn-out Cash Consideration shall be made based on Buyer's audit of its revenues for the fiscal year ending December 31, 2015, in accordance with GAAP from the sum (such sum, the " Achieved Relevant 2015 Revenues ") of (A) sales of the Company Group's GraphicMail or white label software and (B) 35% of the sales of Buyer's SMTP relay services to customers, resellers, distributors and partners (together, the " Customers ") outside of the United States through Buyer's and the Company Group's sales channels (the " SMTP Service Revenue ") as follows:

(i) The full value of the Earn-out Consideration shall be paid and issued if and only if the Achieved Relevant 2015 Revenues equal or exceed $6,563,000 (the " Earn-out Revenue Target ");

(ii) If Achieved Relevant 2015 Revenues are less than the Earn-out Revenue Target and provided that Achieved Relevant 2015 Revenues are greater than $6,016,000, a portion of the Earn-out Consideration (the " Payout Percentage ") shall be provided by Buyer to Sellers as follows:

Payout Percentage = (Achieved Relevant 2015 Revenues - $6,016,000) / ($547,000)

Provided , that the Payout Percentage may not be greater than 100% and the Payout Percentage will be rounded up or down to the closest 1%. The Earn-out Cash Component and Earn-out Stock Component will each be adjusted by multiplying them by the Payout Percentage;

(iii) Achieved Relevant 2015 Revenues shall include license fees, service revenues and recognized subscription revenues for the use of software, overage charges, set up fees, and service charges that Customers may incur in conjunction with the normal use of a subscription service and revenues from pay-as-you-go plans in which Customers are subscribed and recognized in accordance with GAAP , provided , the following shall not be included in calculating Achieved Relevant 2015 Revenues : (A) Booked revenues, gross bookings, or other credits not recognized as revenue under GAAP and (B) other unusual or one-off revenue items such as the sale or long term lease or license of assets .

(iv) Notwithstanding anything to the contrary herein , if the revenue growth of SMTP Service Revenues for the fiscal year ending December 31 , 2015 over fiscal year ending December 31 , 2014 is less than ten percent (10%), the SMTP Service Revenues shall be deemed to be $1,313,000 for purposes of determining Achieved Relevant 2015 Revenues .

2.5 Withholding . Notwithstanding anything in this Agreement to the contrary, each of Buyer, the Company Group, their respective Affiliates and Sellers' Representative is entitled to deduct and withhold or cause to be deducted and withheld from any amounts payable pursuant to this Agreement, such amounts as Buyer, the Company Group or any of their respective Affiliates or Sellers' Representative reasonably determines is required to be deducted and withheld with respect to the making of any such payment under the Code or the Treasury Regulations promulgated thereunder or any applicable provision of state, local or foreign Tax Law, including, without limitation, as a result of the payment of any amount to any option holder and/or as a compensatory payment. To the extent that amounts are so deducted and withheld, such deducted and withheld amounts are to be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. To the extent Buyer, the Company Group, any of their respective Affiliates or Sellers' Representative deducts and withholds or causes to be deducted and withheld any such amounts payable pursuant to this Agreement, Buyer, the Company Group, any such Affiliate or Sellers' Representative, as the case may be, shall remit (or cause to be remitted) to the appropriate Taxing Authority all such amounts deducted and withheld or caused to be deducted and withheld.

2.6 Alternative Business Combination . In the event that, instead of undertaking the acts contemplated in Section 2.1 , Buyer elects to consolidate the Company Group and the Buyer itself with another entity ("CombinationCo") at the time of the Closing (a "Business Combination"), Sellers' agree to use their best commercially reasonable efforts to timely complete whatever undertakings or steps are necessary in order to consummate the Business Combination, including but not limited to forming CombinationCo in such jurisdiction as instructed by Buyer and causing CombinationCo to form one or more corporate subsidiaries in such jurisdictions as instructed by Buyer; provided, that Buyer shall be responsible for and shall reimburse the Company Group and Sellers for all costs and expenses incurred by the Company Group or Sellers in connection with such Business Combination, including any and all Taxes (including Transfer Taxes) incurred by the Company Group or the Sellers directly attributable to the execution of the Business Combination, whether occurring before or after Closing (" Business Combination Expenses "). In connection with the Business Combination, Buyer may reduce the Closing Cash Payment to no less than $1,300,000, replace the Cash Escrow Amount with Common Stock or stock of CombinationCo ("CombinationCo Stock") and pay the amount of such reduction (including the replacement of the Cash Escrow Amount) and all other upwards adjustments to the Purchase Price in Common Stock or CombinationCo Stock (the "Additional Stock Payment"), provided, that one of Buyer common stock would also be converted to one share of CombinationCo Stock on consummation of the Business Combination. For purposes of determining the number of shares of Common Stock or CombinationCo Stock required to be delivered to Sellers (or the Escrow Agent) for any Additional Stock Payment, such Common Stock or CombinationCo Stock shall be deemed to have a value equal to 1/1.275 of the average market closing price on NASDAQ of the Common Stock over the ten (10) days immediately preceding the date the shares are delivered to Sellers (or the Escrow Agent). In the event that the Business Combination is consummated, Buyer shall file a registration statement within ninety (90) days of the Closing for purposes of allowing the Sellers the ability to resell all Common Stock or CombinationCo Stock received in connection with the Transactions, subject to the restrictions imposed by the Lock-up and the Escrow Agreement. The Buyer agrees that if it elects to replace any cash payment obligations with an obligation to make an Additional Stock Payment, the entirety of the Cash Escrow Amount shall be replaced with Common Stock or CombinationCo Stock before any of the Closing Cash Payment is replaced with Common Stock or CombinationCo Stock. If the Closing does not occur on or prior to the 90th day following the date hereof, then the Closing Cash Payment will be increased by $50,000 and the Closing Stock Payment will be increased by $50,000 and the Earn-out Cash Component and the Earn-out Stock Component will be correspondingly reduced by the same amounts.

ARTICLE III
CLOSING

3.1 Closing . The closing of the Transactions (the "Closing") shall take place at the offices of Reed Smith LLP, 599 Lexington Avenue, 22nd Floor, New York, NY 10022, at 10:00 a.m., New York time, on the third (3rd) Business Day following the satisfaction or waiver of the conditions set forth in Section 3.2 and Section 3.3 (other than those conditions that by their terms must be satisfied on the Closing Date, or at such place and on such date and time as Buyer, the Company Group and Sellers' Representative shall mutually agree (such date on which the Closing occurs, the "Closing Date")). The Closing may be conducted by mail, courier or electronic means.

3.2 Conditions Precedent to Obligations of Buyer . The obligations of Buyer to consummate the Transactions are subject to the satisfaction of the following conditions on or before the Closing Date, unless specifically waived in writing by Buyer prior to the Closing Date:

(a) Deliverables . Sellers and Sellers' Representative shall deliver or cause to be delivered to Buyer the following documents or instruments, which shall be in form and substance reasonably satisfactory to Buyer :

(i) Certificates with respect to each member of the Company Group , issued by the applicable states or jurisdictions in which such Company is organized , as of a date no more than fifteen (15) days prior to the Closing Date , stating that such Company is in good standing ( or has a similar applicable status) under the Laws of such state or jurisdiction to the extent such a certificate is reasonably available and customarily provided in similar transactions in such jurisdiction, or a certified extract of the Register of Commerce for InterInbox SA;

(ii) A certificate from the corporate Secretary ( or similar officer) of each member of the Company Group dated as of the Closing Date and certifying: (A) that correct and complete copies of the Charter and the Bylaws of such Company are attached thereto; (B) that correct and complete copies of the resolutions of the board of directors ( or similar governing body) of such Company approving this Agreement and the Transactions ; and (C) that the condition set forth in Section 3.2(g) has been satisfied with respect to such Company ;

(iii) A certificate dated as of the Closing Date and signed by Sellers' Representative certifying that the conditions specified in Section 3.2(b) and Section 3.2(c) (each as to such Seller 's obligations) have been satisfied, which certificate shall be deemed to be a representation and warranty made by Sellers to Buyer on the Closing Date for the purpose of inducing Buyer to consummate the Transactions and with knowledge that Buyer is relying on such certificate in determining to consummate the Transactions ;

(iv) The original share certificates for the Shares that are certificated ( or affidavits of lost securities in form and substance reasonably satisfactory to Buyer ) together with validly executed and duly stamped stock powers in favor of Buyer and the share register for InterInbox SA;

(v) The Financial Statements ;

(vi) Written resignations, effective as of the Closing Date , of the officers and directors of each Company as may be requested by Buyer ;

(vii) The Pay-Off Documents ;

(viii) Evidence of termination of all Affiliate Transactions other than those set forth on Schedule 6.6 ;

(ix) Evidence of termination by each member of the Company Group of all of such member of the Company Group 's equity compensation plans ( including all unvested options, warrants, restricted stock), if any;

(x) The Escrow Agreement , duly executed by each of Sellers' Representative and the Escrow Agent ;

(xi) A certificate of non-foreign status complying with Treasury Regulations Section 1.1445-2 (b) (" FIRPTA Certificate ") from each Seller (notwithstanding anything to the contrary in this Agreement , if Buyer does not obtain a FIRPTA Certificate from any Seller , Buyer shall be entitled to proceed with the Closing and withhold from the portion of the Purchase Price (and any adjustment thereto) otherwise payable to a Seller that has not delivered a FIRPTA Certificate, the appropriate amounts required to be withheld pursuant to Section 1445 of the Code );

(xii) Employment agreements executed by the executives and employees of the Company Group as identified by Buyer prior to Closing and which are set forth on Schedule 3.2(a)(xii) , in such form and substance reasonably satisfactory to Buyer and each of the applicable executives or employees (the " Employment Agreements "), including with respect to the provisions contained in the Employment Agreements concerning Restrictive Covenants ;

(xiii) Such other instruments, certificates, consents or other documents as are reasonably necessary to carry out the Transactions and to comply with the terms hereof , or as required pursuant to the terms of this Agreement .

(b) Representations and Warranties . The representations and warranties set forth in Article IV which are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date), and the representations and warranties set forth in Article IV which are qualified by materiality or Material Adverse Effect shall be true and correct in all respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date).

(c) Compliance with Covenants . Sellers , Sellers' Representative and the Company Group shall have duly performed and complied in all material respects with all covenants, agreements and obligations required by this Agreement to be performed or complied with by them on or prior to the Closing .

(d) Injunctions . No litigation, order, enforcement action or Claim shall be pending or threatened against any Party seeking to enjoin, or to procure damages or fines as a result of, the consummation or the proposed consummation of the Transactions .

(e) Absence of Change . No fact, event or circumstance shall have occurred since the date of this Agreement which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect .

(f) Consents and Approvals . Sellers and Sellers' Representative shall have obtained and provided to Buyer all Company Third Party Consents and all Regulatory Consents and Notices (the " Required Consents "). All such Required Consents shall be in full force and effect as of the Closing .

(g) Approvals . This Agreement and the Transactions shall have been approved and adopted by the requisite affirmative vote of Sellers in accordance with the applicable Laws , the Charter and the Bylaws of each member of the Company Group .

3.3 Conditions Precedent to Obligations of Sellers , Sellers' Representative and the Company Group . The obligations of Sellers, Sellers' Representative and the Company Group to consummate the Transactions are subject to the satisfaction of the following conditions on or before the Closing Date, unless specifically waived in writing by Sellers' Representative prior to the Closing Date:

(a) Deliverables . Buyer shall deliver or cause to be delivered to, in the case of Section 3.3(a)(i) , Sellers, in the case of Section 3.3(a)(ii) , the Escrow Agent , and in the case of the remainder of Section 3.3(a) , Sellers' Representative, the following documents or instruments, which shall be in form and substance reasonably satisfactory to Sellers' Representative :

(i) The Base Purchase Price , payable as contemplated by Section 2.2 ;

(ii) The Escrow Amount , payable as contemplated by Section 2.2 to an account of the Escrow Agent as set forth in the Escrow Agreement ;

(iii) A certificate from the corporate Secretary ( or similar officer) of Buyer dated as of the Closing Date and certifying correct and complete copies of the resolutions of the board of directors approving this Agreement and the Transactions ;

(iv) A certificate from the corporate Secretary ( or similar officer) of Buyer dated as of the Closing Date and certifying that the conditions specified in Section 3.3(b) and Section 3.3(c) have been satisfied, which certificate shall be deemed to be a representation and warranty made by Buyer to Sellers on the Closing Date for the purpose of inducing Sellers to consummate the Transactions and with knowledge that Sellers are relying on such certificate in determining to consummate the Transactions ;

(v) The Escrow Agreement duly executed by Buyer and the Escrow Agent ; and

(vi) Such other instruments, certificates, consents or other documents as are reasonably necessary to carry out the Transactions and to comply with the terms hereof , or as required pursuant to the terms of this Agreement .

(b) Representations and Warranties . The representations and warranties set forth in Article V which are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date), and the representations and warranties set forth in Article V which are qualified by materiality or Material Adverse Effect shall be true and correct in all respects at and as of the Closing Date (except such representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date).

(c) Compliance with Covenants . Buyer shall have duly performed and complied in all material respects with all covenants, agreements and obligations required by this Agreement to be performed or complied with by them on or prior to the Closing .

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLERS

Except as set forth in the Disclosure Schedules delivered by the Company Group to Buyer prior to the execution and delivery of this Agreement (the " Disclosure Schedules ") or any Supplement thereto, the Company Group and the Sellers, jointly and severally (except with respect to the representations and warranties concerning each of the Sellers, in their individual capacity in Sections 4.1 , 4.2 and 4.3 , for which Sellers, severally and not jointly), represent and warrant to Buyer, as of the date of this Agreement and as of the Closing Date, as follows:

4.1 Organization and Authority of Sellers and Sellers' Representative . Each of Sellers and Sellers' Representative who is an individual is of the age of consent and has the power and authority necessary to enter into, and perform his or her obligations under this Agreement and to consummate the Transactions. Each of Sellers and Sellers' Representative, which is an entity, is duly organized and validly existing under the Laws of its jurisdiction of incorporation or formation and has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Transactions.

4.2 Authorization and Validity . This Agreement constitutes a legal, valid and binding agreement and obligation of each of Sellers and Sellers' Representative who is an individual, enforceable against such Seller and Sellers' Representative in accordance with its terms subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general application relating to or affecting creditors' rights and to general equity principles (the " Enforceability Exceptions "). With respect to any Seller which is an entity, the execution and delivery of this Agreement by such Seller and the consummation by such Seller of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of such Seller are necessary to authorize this Agreement or to consummate the Transactions. With respect to the Company Group, the execution and delivery of this Agreement by the Company Group and the consummation by the Company Group of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company Group are necessary to authorize this Agreement or to consummate the Transactions.

4.3 Title to Shares . Each Seller is the legal and beneficial owner of the Shares as set forth on Schedule 4.3 , and has good and valid title to all such Shares. All of the Shares held by Sellers: (a) have been duly authorized and validly issued by the Company Group in compliance with all applicable Laws and the Charter and Bylaws of the Company Group; and (b) are fully paid-up and were not issued in contravention or conflict with any right of first offer or refusal, pre-emptive or other rights. The Shares held by Sellers are free of all Liens and, except for the restrictions contained in the Charter and the Bylaws, or which may be imposed under applicable Law, are free from transfer restrictions.

4.4 No Governmental Proceedings or Litigation . No Claim by any Governmental Authority is pending or, to the Company Group's Knowledge, has been threatened, against any of Sellers or the Company Group which may affect the validity or enforceability of this Agreement or the Transactions or the ability of Sellers or the Company Group to consummate this Agreement or the Transactions.

4.5 Capitalization .

(a) The Company Group 's authorized and outstanding capital stock and the legal and beneficial owners of the Shares are set forth on Schedule 4.5(a) .

(b) All of the Shares have been duly authorized, are validly issued, fully paid and non-assessable.

(c) Except as set forth on Schedule 4.5(c) no member of the Company Group has any direct or indirect subsidiaries and no member of the Company Group holds, directly or indirectly, any ownership interest, any equity or other proprietary interest, or possess the right to acquire any such interest, contingent or otherwise, in any other Person .

(d) Except as set forth on Schedule 4.5(d) , there are no authorized or outstanding options, warrants, convertible or exchangeable securities, calls, subscriptions or other rights relating to the Shares or obligating Sellers or the Company Group to issue, transfer or sell any shares of the capital stock of the Company Group or options, warrants or convertible or exchangeable securities with respect to any share of capital stock of the Company Group .

4.6 Corporate Organization .

(a) Each member of the Company Group is duly organized and validly existing under the Laws of its jurisdiction of incorporation or organization, and has all requisite corporate power and authority to own, lease and operate its assets , and to carry on its business as presently conducted.

(b) Each member of the Company Group is duly qualified or licensed to transact business in each of the jurisdictions where such qualification or licensing is required by reason of the nature or location of the properties and assets owned, leased or operated by it or the Business , except where the failure to be qualified or licensed would not have a Material Adverse Effect . Buyer has been furnished complete and correct copies of the Charter and Bylaws of each member of the Company Group , in each case, as amended through the date hereof .

(c) The corporate books ( including all registers and minute books) of each member of the Company Group have been kept in compliance in all material respects with the requirements of Laws and are up-to-date, and any records of resolutions adopted by the stockholders and the board of directors of each member of the Company Group are included in the statutory books. The statutory books are in the possession ( or under the control ) of the Company Group .

(d) No member of the Company Group is in violation or default of any provision of its Charter or Bylaws .

4.7 Non-Contravention; Consents .

(a) The execution and delivery of this Agreement does not, and the consummation of the Transactions , will not: (i) conflict with or result in a violation, contravention or breach of any of the terms, conditions or provisions of the Charter or the Bylaws of any member of the Company Group ; (ii) to the Company Group 's knowledge, violate any Law applicable to Sellers or any member of the Company Group ; or (iii) subject to obtaining the Company Third Party Consents, conflict with, or result in the breach of, or constitute a default under, or permit or result in the termination, cancellation or acceleration (whether after the giving of notice or the lapse of time or both) of any right or obligation of any member of the Company Group under, or result in the creation of any Liens upon any of the assets of any member of the Company Group under, or result in or constitute a circumstance which, with or without notice or lapse of time or both, would constitute any of the foregoing under, any Material Contract .

(b) Except for: (i) the approvals required to be obtained from, or given to, Governmental Authorities described on Schedule 4.7(b)(i) (the " Regulatory Consents and Notices "); and (ii) the approvals required to be obtained from the third parties described on Schedule 4.7(b)(ii) (the " Company Third Party Consents "), no approval of any Governmental Authority or other Person under any Material Contract is required to be obtained or given by any member of the Company Group or Sellers in connection with the performance of this Agreement . The board of directors of each member of the Company Group has approved the execution and delivery of this Agreement by such member of the Company Group and the consummation of the Transactions .

4.8 Financial Statements .

(a) Attached as Schedule 4.8(a) hereto are true and complete copies of: (i) the annual financial statements of each member of the Company Group for the fiscal year ending in 2013 and 2012 (the " Financial Statements "). The Financial Statements present fairly, in all material respects, the financial position of the each member of the Company Group as of the respective dates thereof and the results of operations of each member of the Company Group for the periods covered thereby, subject to, in the case of interim financial statements, normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes.

(b) Each member of the Company Group has devised and maintained systems of internal accounting controls with respect to its businesses sufficient to provide reasonable assurances that: (i) all transactions are executed in accordance with management's general or specific authorization; and (ii) all transactions are recorded as necessary to permit the accurate preparation of financial statements and to maintain proper accountability for items.

(c) Schedule 4.8(c) contains a true and accurate detailed list of each member of the Company Group 's deferred revenue and each Contract related thereto.

4.9 Undisclosed Liabilities . Except as set forth on Schedule 4.9 , no member of the Company Group has any liability of a nature required to be disclosed in a balance sheet prepared in accordance with GAAP (whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due), except for: (a) those liabilities set forth in the balance sheet included in the Financial Statements and (b) those liabilities which have arisen after the date of the Financial Statements (the " Financial Reference Date ") in the Ordinary Course of Business.

4.10 Absence of Changes . From and after the Financial Reference Date:

(a) Each member of the Company Group has conducted its business in the Ordinary Course of Business in all material respects;

(b) No member of the Company Group has experienced or been subject to a Material Adverse Effect ; and

(c) No member of the Company Group has taken any of the actions, and there have not occurred any of the events, described in clauses (a) through (u) of Section 6.1 , without the prior written approval of Buyer.

4.11 Real Property and Movable Assets.

(a) No member of the Company Group owns any real property, has any obligations or liabilities with respect to any real property previously owned by such Company or has or is a party to any obligations or Contracts with respect to the acquisition of any real property.

(b) Schedule 4.11(b) contains a complete and correct list of all Contracts (together with any and all amendments and modifications thereto and any guarantees thereof) (collectively, the " Leases ") pursuant to which any member of the Company Group leases , subleases or occupies real property as tenant, subtenant or occupant (the " Leased Real Property "). Schedule 4.11(b) sets forth the address of each Leased Real Property . To the Company Group's Knowledge , the applicable member of the Company Group has good and valid title to the leasehold estate under each Lease free and clear of any Liens except for Permitted Liens .

(c) Each member of the Company Group has good title to, or a valid leasehold interest in or license to, each of its tangible personal property used in the operation of the Business (collectively, the " Assets "), in each case, free and clear of any Liens except for Permitted Liens . The Assets are fit for the purposes for which they are used or intended to be used in connection with the provision of the services to be provided by Buyer and its Affiliates . All of the Assets , owned or leased, have been well maintained and are in good operating condition and repair (with the exception of normal wear and tear), and are free from defects other than such defects as would not interfere with the intended use thereof in connection with the provision of the services to be provided by Buyer and its Affiliates . All of the Assets shall be owned by or available for use by each member of the Company Group immediately after the Closing on terms and conditions identical to those under which such member of the Company Group owned or used the Assets immediately prior to the Closing .

4.12 Contracts .

(a) Schedule 4.12(a) contains a true and accurate list of the Contracts of the following types to which a member of the Company Group is a party or by which a member of the Company Group or any of its assets is or are bound or affected (together with the Leases, the " Material Contracts "):

(i) any employment Contract ;

(ii) any loan agreement , credit facility, or other Contract pursuant to which a member of the Company Group has made or will make any loans or advances, or has or will incur or become responsible for any indebtedness;

(iii) any Guaranty , indemnity, suretyship or security given by a member of the Company Group ;

(iv) any Contract relating in any manner to the securities of a member of the Company Group ;

(v) any Contract that restricts a member of the Company Group from competing with any other Person or that involves any restriction with respect to the scope or type or geographic area of operations of a member of the Company Group ;

(vi) any Contract involving the provision of goods or services by the Company Group involving aggregate consideration in excess of $10,000 per annum;

(vii) all Contracts by which a member of the Company Group licenses any Intellectual Property rights of any other Person that are material to the Business or by which it licenses its Intellectual Property rights to another Person other than in the Ordinary Course of Business (in each case specifically excluding all shrink wrap, click wrap, and similar commercial off-the-shelf software);

(viii) any Contract that is subject to a Company Third Party Consent or any Contract pursuant to which any material right ( including , without limitation, rights of termination or rights to receive compensation), obligation, penalty or default is caused or triggered by, or results from, a change of control of a member of the Company Group ;

(ix) any Contract pursuant to which a member of the Company Group leases any material items of personal property;

(x) any Contract that requires or may require a member of the Company Group to make payments in an amount greater than $20,000 per annum that is not terminable without penalty upon less than sixty (60) days prior written notice by the applicable member of the Company Group ;

(xi) any partnership, limited liability company , joint venture or other similar Contracts to which a member of the Company Group is a party ; and

(xii) Contracts not specified above that are material to a member of the Company Group or the operation of the Business .

(b) Except as set forth on Schedule 4.12(b) , to the Company Group's Knowledge , each Material Contract is in full force and effect and is valid, binding and enforceable in accordance with its terms, subject to the Enforceability Exceptions . Except as set forth on Schedule 4.12(b) , to the Company Group's Knowledge , immediately following the Closing , each Material Contract will be in full force and effect, and valid, binding and enforceable on the same terms, subject to the Enforceability Exceptions . Neither the applicable member of the Company Group nor, to the Company Group's Knowledge , the counterparties to such Material Contracts have committed any material breach of any of the terms and conditions of any Material Contract . Except as set forth on Schedule 4.12(b) , no member of the Company Group has received written notice from any third party indicating that it intends to terminate or refuse to renew or extend any of the Material Contracts . No counterparty to a Material Contract has repudiated or , to the Company Group's Knowledge , threatened to repudiate any provision of any Material Contract . Except as a result of the identity of the Buyer and/or any actions taken by the Buyer or any of its Affiliates , to the Company Group's Knowledge , the consummation of the Transactions will not materially adversely affect any relationships with any customer, supplier or vendor listed on Schedule 4.12(c ) or any Contract therewith.

(c) Schedule 4.12(c) lists (i) each of the top twenty (20) customers of the Company Group during the twelve (12) months period preceding the date hereof , and (ii) each of the top ten (10) suppliers or vendors to the Company Group during the twelve (12) months period preceding the date hereof . Except as set forth on Schedule 4.12(c) , no such customer, supplier or vendor of the Company Group has canceled or otherwise materially adversely modified its relationship with the Company Group, to the Company Group's Knowledge no such Person has any intention to do so, and there are no disputes or notices of dissatisfaction outstanding, or to the Company Group's Knowledge , threatened, with or from any customer, supplier or vendor of the Company Group .

4.13 Accounts Receivable . The accounts receivable of the Company Group set forth in the Financial Statements and arising subsequent to the Financial Reference Date represent transactions of the Company Group in the Ordinary Course of Business pursuant to bona fide transactions involving goods delivered or services rendered by the Company Group.

4.14 Compliance with Laws; Licenses and Permits .

(a) Each member of the Company Group is operating and has at all times operated its business in all material respects in compliance with all applicable Laws, except where the failure to do so would not have a Material Adverse Effect . During the four (4) years immediately preceding the date hereof , no member of the Company Group has received written notice from any Governmental Authority alleging any failure by it to comply with any Laws . There is no outstanding or , to the Company Group's Knowledge , threatened, order, writ, injunction or decree of any Governmental Authority or arbitration tribunal against or involving any member of the Company Group , the operation of the Business or the Shares .

(b) Each member of the Company Group owns and validly holds all licenses, authorizations, permissions, permits , certificates, approvals, registrations, accreditations and exemptions issued by any Governmental Authority and required to conduct its businesses as presently conducted and to own, operate, or use, as applicable, the Assets and the Leased Real Property , an accurate list of which is set forth on Schedule 4.14(b) (collectively, the " Permits " and, individually, a " Permit "), except for those Permits, the failure of which to obtain, would not have a Material Adverse Effect on the Company Group. To the Company Group's Knowledge , all Permits are valid and subsisting in accordance with their terms and are in full force and effect. To the Company Group's Knowledge , each member of the Company Group is in compliance in all material respects with all Permits and has not committed any act or omitted to take any action that is likely to cause it to lose the benefit of or jeopardize the renewal of any Permit. There are no Claims pending or , to the Company Group's Knowledge , threatened that seek the revocation, cancellation, suspension or any adverse modification of any Permits. Each member of the Company Group is, and at all times after June 30, 2011 has been, in compliance in all material respects with the terms and requirements of each Permit identified or required to be identified on Schedule 4.14(b) to the Company Group's Knowledge , after June 30, 2011, no event has occurred or circumstance exists that may (A) constitute or result directly or indirectly in a material violation of or a material failure to comply with any term or requirement of any Permit listed or required to be listed on Schedule 4.14(b) or (B) result directly or indirectly in the revocation, withdrawal, suspension, cancellation, termination or nonrenewal of, or any modification to, any Permit listed or required to be listed on Schedule 4.14(b) . No member of the Company Group has received, at any time after June 30, 2011, any written notice from any Governmental Authority , accrediting body or any other Person regarding (A) any actual, alleged, possible or potential material violation of or material failure by a member of the Company Group to comply with any term or requirement of any Permit or (B) any actual, proposed, possible or potential revocation, withdrawal, suspension, cancellation or termination of, or modification to, any Permit. All applications required to have been filed for the renewal of the Permits listed or required to be listed on Schedule 4.14(b) have been duly filed on a timely basis with the appropriate Governmental Authorities or accrediting bodies, and all other filings required to have been made with respect to such Permits have been duly made on a timely basis with the appropriate Governmental Authorities or accrediting bodies, except where the failure to file such applications or make such filings would not have a Material Adverse Effect . To the Company Group's Knowledge , there is no reasonable basis to expect that any Permits will not be reissued or transferred, in each case on materially similar terms as currently existing, if required as a result of the execution of this Agreement and/or the consummation of the Transactions . To the Company Group's Knowledge , the Permits listed in Schedule 4.14(b) collectively constitute all of the Permits necessary to permit the Company Group to lawfully conduct and operate the Business in substantially the manner it currently conducts and operates the Business and to permit the Company to own and use its assets in substantially the manner in which it currently own and use such assets .

4.15 Litigation.

Except as set forth on Schedule 4.15(a) , (i) no Claim is pending or , to the Company Group's Knowledge , threatened against any member of the Company Group or any of its respective directors or officers or affecting its business , assets , properties or operations as currently conducted and there are no judgments or orders in force or outstanding against any member of the Company Group , any of its assets or any of its directors or officers; and (ii) no member of the Company Group has received any notice of any potential Claim which may affect the validity or legality of this Agreement or the Transactions , or the ability of the Company Group, Sellers or Sellers' Representative to execute, deliver and perform this Agreement and the Transactions , and, to the Company Group's Knowledge , there are no facts or circumstances that would reasonably be expected to result in any member of the Company Group becoming subject to any such Claim .

4.16 Employee Matters .

(a) Schedule 4.16(a) lists the name of each employee of the Company Group (" Employee ") and, with respect to each such Employee , his or her (i) employer, (ii) work location, (iii) position, (iv), hire date, (v) classification (i.e., exempt or non-exempt), (vi) rate of compensation (base salary or hourly rate of pay), (vii) bonus ( or commission) opportunity, (viii) accruals for vacation, sick leave and holiday pay and (ix) visa or green card status. Such schedule is true and complete in all material respects.

(b) No member of the Company Group is a party to or is bound by any collective bargaining or labor contract, voluntary recognition agreement or other binding commitment to any labor union, trade union, works council or employee organization in respect of any of its employees. There are not currently, and in the past five (5) years preceding the date hereof there have not been, nor to the Company Group's Knowledge , are there now threatened, any: (i) strikes, work stoppages, slowdowns, lockouts or arbitrations; or (ii) material employee or union grievances, claims, charges, unfair labor practice charges, grievances or complaints or other labor disputes with respect to any member of the Company Group . During the past three (3) years preceding the date hereof , none of the employees of any member of the Company Group is or has been represented by any labor union or other employee collective bargaining organization, was a party to, or bound by, any labor or other collective bargaining agreement in connection with such employment or has been subject to or involved in or , to the Company Group's Knowledge , threatened with, any union elections, petitions or other organizational or recruiting activities, nor are any such labor organizing activities now pending or , to the Company Group's Knowledge , threatened against any member of the Company Group .

(c) Each member of the Company Group is in compliance in all material respects with all applicable Laws relating to employment or termination of employment, including those related to wages, hours, compensation, terms and conditions of employment, workplace health and safety, discrimination or harassment, retaliation, human rights, pay equity, notice of termination, classification of workers (i.e. as employees versus independent contractors, or as exempt versus non-exempt employees), immigration, collective bargaining and the payment and withholding of taxes and other sums as required by the appropriate Governmental Authority . To the Company Group's Knowledge , each member of the Company Group has paid in full to all employees or adequately accrued for in accordance with GAAP consistently applied all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees through the pay period preceding the date hereof . There is no material Claim with respect to employment or termination of employment, or payment of wages, salary or overtime pay that has been asserted or is now pending (regarding which the Company has received notice) or , to the Company Group's Knowledge , threatened before any Governmental Authority , and no material audit or investigation by any Governmental Authority is currently pending (regarding which the Company has received notice) or , to the Company Group's Knowledge , threatened. To the Company Group's Knowledge , no member of the Company Group has any material liability, whether direct or indirect, absolute or contingent, including any obligations under any Company Benefit Plans , with respect to any misclassification of a Person performing services as an independent contractor or consultant rather than as an employee . To the Company Group's Knowledge , no group of employees and no key employee , manager or executive has any plans to terminate employment within twelve (12) months following the date hereof or in connection with the Closing .

4.17 Employee Benefits .

(a) Schedule 4.17(a) contains a list of all Company Benefit Plans . Each Company Benefit Plan is being administered in material compliance with its terms and all applicable Laws , and contributions required to be made under the terms of any of the Company Benefit Plans as of the date of this Agreement have been timely made or , if not yet due, have been properly reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Financial Statements prior to the date of this Agreement . With respect to each such Company Benefit Plan , all tax , annual reporting and other governmental filings required by applicable Law have been timely filed with the appropriate Governmental Authority and all notices and disclosures have been timely provided to participants. No event has occurred and there exists no condition or set of circumstances in connection with which any member of the Company Group would reasonably be expected to be subject to any material liability (other than for routine, uncontested benefit claims) under the terms of, or with respect to, such Company Benefit Plans . Each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualified status or may rely upon a prototype opinion letter, or the remedial amendment period for such Company Benefit Plan has not yet expired and that the trust established in connection with such Company Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and no fact or event has occurred that could adversely affect the qualified status of any such Company Benefit Plan or the exempt status of any such trust.

(b) No member of the Company Group, nor to the Company Group's Knowledge , any other person or entity, has made any express or implied proposal, assurance or commitment, whether legally enforceable or not, to establish, modify, change or terminate any Company Benefit Plan (other than with respect to a modification, change or termination required by ERISA or the Code ), or to any employee or other service provider of any member of the Company Group regarding any improvement to terms of employment or regarding the increase or improvement in the rate or quantum of remuneration, benefits or other compensation.

(c) No Company Benefit Plan is a multiemployer plan (as defined in Section 3(37) of ERISA ) (" Multiemployer Plan ") or a pension plan within the meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA or similar minimum funding requirements under applicable foreign Law (" Pension Plan ") , and no member of the Company Group nor any ERISA Affiliate has sponsored or contributed to or been required to contribute to, or otherwise has or may have any liability with respect to (whether direct or contingent), a Multiemployer Plan or Pension Plan . No material liability under Title IV of ERISA or similar applicable foreign Law has been incurred by any member of the Company Group or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to any member of the Company Group or any ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder or to any lien arising under ERISA .

(d) No payment or benefit provided pursuant to any Company Benefit Plan , including the grant, vesting or exercise of any equity-based award, will or may provide for the deferral of compensation subject to Section 409A of the Code , whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions (either alone or upon the occurrence of any additional or subsequent events) or otherwise. No member of the Company Group is a party to, or otherwise obligated under, any Company Benefit Plan that provides for the gross-up of the tax imposed by Section 409A(a)(1)(B) of the Code . The execution and delivery of this Agreement by the Company Group and the consummation of the Transactions or thereby will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Benefit Plan or Contract that will or may result in any payment of deferred compensation which will not be in compliance with Section 409A of the Code .

(e) Schedule 4.17( e) contains a list of all Company Benefit Plans providing for compensation or benefits to employees of any member of the Company Group who are providing Services at a location, which are subject to the Laws of any jurisdiction outside of the United States (a " Foreign Plan "). With respect to any Foreign Plan : (i) if it is intended to qualify for special tax treatment, such Foreign Plan meets all applicable requirements for such treatment; (ii) if it is intended to be funded and/or book-reserved, then each such Foreign Plan is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions and GAAP ; and (iii) no material liability exists or reasonably could be imposed upon the assets of any member of the Company Group by reason of such Foreign Plan .

(f) No member of the Company Group has granted any material loans or advances, or provided any guarantees or financial assistance, to any of its employee (s) (past or present), which are outstanding.

4.18 Intellectual Property .

(a) Schedule 4.18(a) lists all the Company Group Intellectual Property other than Intellectual Property licensed by the Company Group pursuant to off-the shelf commercial licenses . The Company Group Intellectual Property consists of all Intellectual Property used by each member of the Company Group in or in connection with the Business of each member of the Company Group that is necessary to conduct the Business . To the Company Group's Knowledge , each member of the Company Group owns, or has the valid right to use and license, the Company Group Intellectual Property in the Ordinary Course of Business without payment of additional amounts or consideration other than ongoing royalties or license payments, and the consummation of the Transactions will not result in the loss or material impairment of any of the Company Group Intellectual Property . There are no pending, and, to the Company Group's Knowledge , no person has threatened in writing to initiate any, attachment or action against the Company Group Intellectual Property and, where the Company Group Intellectual Property is not owned by a member of the Company Group, Sellers or their Affiliates , the owner thereof has not threatened in writing to terminate any rights attached to the use of such Company Group Intellectual Property by any member of the Company Group . To the Company Group's Knowledge , (i) none of the processes employed or the principal products and services dealt in by each member of the Company Group infringe, misappropriate, or otherwise violate the Intellectual Property of any other Person , and (ii) none of the Company Group Intellectual Property is being infringed, misappropriated, or otherwise violated by any other Person and none of the Company Group Trade Secrets has been disclosed by any member of the Company Group without proper authorization to any other Person .

(b) To the Company Group's Knowledge , the Company Group Intellectual Property , the use thereof, or the operation of the business by any member of the Company Group , does not infringe, misappropriate or otherwise violate any Intellectual Property of others.

(c) No member of the Company Group has been named in any pending suit, action or proceeding which involves a Claim of infringement of any other Person 's Intellectual Property by any member of the Company Group , or misappropriation of any other Person 's Intellectual Property by any member of the Company Group, nor, to the Company Group's Knowledge , has any such suit, action or proceeding which is material to the Business been threatened in writing against any member of the Company Group .

(d) No member of the Company Group, Sellers or their Affiliates has granted to any other Person any license or right to the commercial use of any of the Company Group Intellectual Property , other than in the Ordinary Course of Business

(e) The Company has taken all reasonable and practicable steps to safeguard and maintain the secrecy and confidentiality of its trade secrets. The Company Group have delivered to Buyer true, complete and accurate copies of all agreements that any directors, officers, employees or consultants of the Company Group have executed regarding (i) the protection of Proprietary Information , and (ii) the assignment to the Company Group of all Intellectual Property Rights arising from services performed for the Company Group by such persons. To the Company Group's Knowledge , no current or prior directors, officers, employees or consultants of the Company Group claim or have a right to claim an ownership interest in any Company Group Intellectual Property , including as a result of having been involved in the development or licensing of such Company Group Intellectual Property while employed by or consulting to any member of the Company Group .

4.19 Environment . To the Company Group's Knowledge, each member of the Company Group holds, and is in compliance with, all environmental permits, licenses and approvals required by any applicable Governmental Authorities for the current operations of such member of the Company Group. No member of the Company Group has received notice of any violation of any applicable Environmental Rule which has not been corrected. To the Company Group's Knowledge, each member of the Company Group is in compliance in all material respects with all applicable Environmental Rules, and no proceedings have been instituted or are pending or, to the Company Group's Knowledge, threatened against any member of the Company Group in respect of any breach of Environmental Rules.

4.20 Taxes . Except as otherwise disclosed on Schedule 4.20:

(a) Each member of the Company Group has: (i) timely filed (taking into account all applicable extensions) all income, sales and other Tax Returns required to be filed by it, and all such Tax Returns have been properly completed in compliance with all applicable Laws , and are true, correct and complete; and (ii) timely paid all Taxes shown to be due on any such Tax Return , and all such other Taxes due and payable, except for Taxes set forth on Schedule 4.20 being contested in good faith and for which adequate reserves have been established and reflected on the Financial Statements .

(b) The Financial Statements of each member of the Company Group include reserves that are adequate for the payments of all Taxes not yet due and payable or that are being contested in good faith as of the date of such Financial Statements . Since the date of the Financial Statements , no member of the Company Group has incurred any liability for Taxes other than in the Ordinary Course of Business .

(c) Each member of the Company Group has timely withheld and paid over to the appropriate Taxing Authority all Taxes which it is required to withhold from amounts paid or owing to any employee , stockholders, creditor, holder of securities or other third party , and each member of the Company Group has complied with all information reporting ( including Internal Revenue Service Form 1099) and backup withholding requirements, including maintenance of required records with respect thereto.

(d) There are no Liens relating or attributable to Taxes encumbering (and no Taxing Authority has threatened to encumber) the assets of any member of the Company Group , except for statutory Liens for current Taxes not yet due and payable, or for Taxes being contested in good faith in appropriate Proceedings and for which adequate reserves have been established in the Financial Statements . There are no Liens relating or attributable to Taxes encumbering (and, to the Company Group's Knowledge , no Taxing Authority has threatened to encumber) the shares ( or other equity interests) of any member of the Company Group .

(e) There are no pending or , to the Company Group's Knowledge , threatened, federal, state, local or foreign audits, examinations, actions, suits, or proceedings relating or attributable to Taxes or any Tax Return now in progress or proposed in writing against any member of the Company Group . There are no deficiencies for any Taxes , no claims for additional Taxes , and no other disputes or Claim relating or attributable to any Tax liability of any member of the Company Group claimed, issued or raised by any Taxing Authority that has not been properly reflected in the Financial Statements .

(f) No member of the Company Group is a party to, or is bound by, or has any obligation under any agreement, plan, contract or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code, except for those set forth in Schedule 4.20(f) . No person is entitled to receive any "gross up" payment from any member of the Company Group in the event that the excise Tax of Section 4999(a) of the Code is imposed on such Person. There is no Contract to which any member of the Company Group is a party or has any obligation thereunder and covering any Person that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code.

(g) No member of the Company Group has waived any statute of limitations for the period of assessment or collection of Taxes , or agreed to or requested any extension of time for the period with respect to a Tax assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired.

(h) No member of the Company Group : (i) is a party to, is bound by, or has any obligation under, any Tax Sharing Agreement ; or (ii) has any potential liability or obligation (for Taxes or otherwise) to any Person as a result of, or pursuant to, any such Tax Sharing Agreement .

(i) No member of the Company Group has: (i) taken a reporting position on a Tax Return that, if not sustained, could be reasonably likely to give rise to a penalty for substantial understatement of federal income Tax under Section 6662 of the Code (or any similar provision of state, local or foreign Law); (ii) entered into any transaction identified as a (x) "listed transaction," within the meaning of Treasury Regulations Section 1.6011-4(b)(2), (y) a "transaction of interest," within the meaning of Treasury Regulations Section 1.6011-4(b)(6), or (z) any transaction that is "substantially similar" (within the meaning of Treasury Regulations Section 1.6011-4(c)(4)) to a "listed transaction" or "transaction of interest;" or (iii) entered into any other transaction that required or will require the filing of Internal Revenue Service Form 8886.

(j) The Company Group has delivered or made available to Buyer as applicable: (i) correct and complete copies of all Tax Returns filed by each member of the Company Group for which the statute of limitations has not expired, including all Internal Revenue Service Form 1120 Schedule UTPs, and (ii) all revenue agent's reports, notices or proposed notices of deficiency or assessment, audit reports, information document requests, material correspondence and other similar documentation relating to Taxes or Tax Returns of each member of the Company Group relating to any period for which the statute of limitations has not expired.

(k) No member of the Company Group is or has been a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

(l) No member of the Company Group owns any equity, security, or other interest in any Person, except as stated in Schedule 4.20(l) .

(m) No member of the Company Group has or has had a taxable presence in any jurisdiction other than jurisdictions for which Tax Returns have been duly filed or for which extensions have been duly filed and Taxes have been duly and timely paid, and no Claim has been made by a Taxing Authority in a jurisdiction where such member of the Company Group does not file Tax Returns and pay Taxes that any member of the Company Group is or may be subject to any Tax Return filing requirements or taxation by that jurisdiction except where such failure would not have a Material Adverse Effect .

(n) Except as set forth on Schedule 4.20(n) , n o member of the Company Group has (or had) a permanent establishment in any country other than the country in which it is established.

(o) No member of the Company Group has any material liability under Section 482 of the Code or under the arm's length principles of the OECD transfer pricing guidelines (or similar provisions of state, local or foreign Law) . The Company has provided such documentation and records to Buyer as set forth on Schedule 4.20(o).

4.21 Insurance . Schedule 4.21 contains an accurate list and description of all policies and contracts of fire, casualty, production, liability, errors and omissions, business interruption and other forms of insurance and all fidelity bonds held or maintained by or for the benefit of the Company Group (collectively, the " Company Insurance Policies "). All such Company Insurance Policies are in full force and effect and shall remain in full force and effect through the Closing. Neither the Company Group nor Sellers have received any notice of cancellation or non-renewal or of significant premium increases with respect to any such policy. No pending claims made by or on behalf of the Company Group under such policies have been denied or are being defended against third parties under a reservation of rights by an insurer thereof. All premiums due prior to the date hereof with respect to such Company Insurance Policies and contracts have been timely paid. The Company Group has complied in all material respects with the provisions of such Company Insurance Policies. During the past three (3) years, the Company Group has not been refused any insurance with respect to its assets or operations, nor has its coverage been limited, by any insurance carrier to which it has applied for any such insurance or with which it has carried insurance.

4.22 Affiliate Transactions . Schedule 4.22 lists all Contracts entered into or existing prior to Closing between any of Sellers, Sellers' Representative, their Affiliates (other than a member of the Company Group) and any of their respective directors, officers, employees, or stockholders (except for amounts due as normal salaries and bonuses) or any directors, officers, employees or stockholders of a member of the Company Group, on the one hand, and a member of the Company Group, on the other hand ("Affiliate Transactions"). All legal formalities have been fulfilled with respect to each of such Contracts, including any required filings with, or approvals by, any Governmental Authority.

4.23 Business Technology .

(a) To the Company Group's Knowledge , each element of the Business Technology is legally owned by, or lawfully used under an agreement with its owner, or used under a license, giving the necessary rights of use to, the applicable member of the Company Group .

(b) Except as set forth in Schedule 4.23(b) , in the twelve (12) months prior to the date of this Agreement , there have been no material performance reductions or breakdowns of any logical or physical intrusions to any Business Technology or losses of data, and no part of the Business Technology has been prone to material malfunctions or material errors, the result of which has had ( or is having) a Material Adverse Effect .

(c) The Company Group has implemented reasonable disaster recovery plans designed to maintain the operation of the Business .

(d) The Company Group has taken reasonable precautions in accordance with good industry practice to preserve the security and integrity of the Business Technology .

(e) Except as set forth in Schedule 4.23(e) , in the twelve (12) months prior to the date of this Agreement , to the Company Group's Knowledge , there has not been any unauthorized access to, use of or modification of any software or data in, or fraud committed by use and abuse of, the Business Technology .

4.24 No Broker . Except as set forth on Schedule 4.24 , neither the Company Group nor Sellers has employed or made or entered into any Contract with any broker, finder or similar agent or any other Person or firm in connection with the Transactions which may result in any liability to the Company Group or Buyer.

4.25 Absence of Certain Business Practices . No payments of either cash or other consideration have been made to any Person by the Company Group or on behalf of the Company Group by any agent, employee, officer, manager or director of the Company Group or any other Person that were unlawful under the Laws. Without limiting the foregoing in any manner, neither the Sellers (on behalf of the Company Group), nor the Company Group, nor any of the Companies' directors, officers, employees, agents, representatives, nor anyone acting on behalf of the Sellers nor the Company Group, has: (a) violated any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (b) offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, to (i) any person holding a legislative, administrative or judicial position of any kind; (ii) any officer, employee or any other person acting in an official capacity for any Governmental Authority; (iii) any political party or official thereof or any candidate for political office (individually and collectively, any " Governmental Authority Official ") or (iv) any person while knowing that all or a portion of such money or thing of value would be offered, given or promised to any Governmental Authority Official, for the purpose of: (A) (1) influencing any act or decision of a Governmental Authority Official in his or her official capacity; (2) inducing a Governmental Authority Official to do or omit to do any act in relation to his or her lawful duty; or (3) inducing a Governmental Authority Official to influence or affect any act or decision of any Governmental Authority; and (B) in order to assist a Company in obtaining or retaining business or a business advantage for or with, directing business to the Company, or securing any improper advantage for the Company.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to the Company Group and Sellers, as of the date of this Agreement and as of the Closing Date, as follows:

5.1 Organization and Authority . Buyer is a company duly organized and validly existing under the Laws of its jurisdiction of incorporation or formation and has full corporate or equivalent power and authority necessary to enter into, and perform its obligations under this Agreement and to consummate the Transactions.

5.2 Authorization and Validity . The execution, delivery and performance by Buyer of this Agreement have been duly authorized by all requisite corporate or equivalent actions on the part of Buyer, and this Agreement constitutes a legal, valid and binding agreement and obligation of Buyer, enforceable against it in accordance with its terms subject to the Enforceability Exceptions.

5.3 No Conflict; Consents . The execution and delivery of this Agreement does not, and the consummation of the Transactions, will not: (a) conflict with or result in a violation, contravention or breach of any of the terms, conditions or provisions of the Charter or the Bylaws of Buyer; (b) violate or result in a breach under any Contract, statute, regulation, rule, order, judgment, decree or other legal requirement applicable to Buyer; or (c) require the consent, approval or authorization of any third Person, including any Governmental Authority.

5.4 No Governmental Proceedings or Litigation . No Claim by any Governmental Authority is pending or, to the knowledge of Buyer, has been threatened against Buyer which may affect the validity or enforceability of this Agreement or the Transactions or the ability of Buyer to consummate this Agreement or the Transactions.

5.5 No Broker . Buyer has not employed or made or entered into any Contract with any broker, finder or similar agent or any other Person or firm with respect to the Transactions which may result in any liability to the Company or any Seller.

5.6 No Financing Contingency . Buyer has the financial capability to consummate the Transactions and pay the Purchase Price pursuant to Section 2.2 . Buyer understands and agrees that its obligations hereunder are not in any way contingent or otherwise subject to: (a) the consummation of any financing arrangements or obtaining any financing; or (b) the availability of any financing to Buyer or any of its Affiliates.

5.7 Valid Issuance of Common Stock . The Common Stock issued pursuant to this Agreement when issued will be (a) validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under this Agreement and applicable state and federal securities laws, or Liens created by or imposed by Seller, and (b) issued in compliance with all applicable federal and state securities laws.

ARTICLE VI
PRE-CLOSING MATTERS

6.1 Conduct of Business Prior to Closing . During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 10.1 or the Closing Date (the " Pre-Closing Period "), the Company Group, Sellers and Sellers' Representative shall use commercially reasonable efforts to: (i) preserve intact in all material respects the present business organization of the Company Group and operate the Business in the Ordinary Course of Business; (ii) maintain and preserve intact the business, assets and properties of the Company Group; (iii) maintain existing business relationships with the Company Group's employees and suppliers, distributors and customers; (iv) maintain the books of account, records and files of the Company Group, all in the Ordinary Course of Business; (v) not take any action for the specific purpose of manipulating or artificially inflating the Consolidated Net Assets; (vi) maintain in full force and effect the insurance policies described on Schedule 4.21 (or the renewal or replacement policies of such policies) and (vii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to the Company Group's Knowledge. Except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1 , the Company Group, Sellers and Sellers' Representative covenant that they shall not, and shall cause each member of the Company Group not to, absent the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the date of this Agreement and until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms:

(a) issue or sell any equity securities or debt securities of any member of the Company Group ;

(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of any member of the Company Group ;

(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of any member of the Company Group ;

(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring , recapitalization or other reorganization of any member of the Company Group ;

(e) declare, set aside or pay any dividend or other distribution without the written approval in advance by Buyer (which approval shall not be withheld if Buyer has determined that it will not pursue a Business Combination unless such dividend or distribution would be reasonably expected to result in Consolidated Net Assets being less than the Target Net Assets );

(f) incur, assume or guarantee any Company Debt or make any loans or advances to, any other Person ;

(g) subject any of the Company Group 's material assets (real, personal or mixed, tangible or intangible) to any Lien , except for Permitted Liens ;

(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company Group 's material assets (real, personal or mixed, tangible or intangible, including the Company Group Intellectual Property ) other than transactions in the Ordinary Course of Business ;

(i) make any commitments for capital expenditures that aggregate in excess of $50,000;

(j) make any amendments to the Charter or Bylaws of a member of the Company Group ;

(k) make any change in the Company Group 's accounting methods or practices, other than as required by GAAP ;

(l) enter into any partnership, limited liability company or joint venture agreement ;

(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to a member of the Company Group ;

(n) cancel or terminate any material insurance policy naming a member of the Company Group as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;

(o) enter into any Contract by which the Business or any of the assets or properties of the Company Group would be bound or affected that restricts in any material respect the operation of the Business or the Company Group 's assets or properties, from engaging in any line of business in any geographic area or competing with any Person ;

(p) terminate or make any material amendment to a Material Contract , or enter into any Contract that would be a Material Contract if it had been in effect on the date hereof, other than in the Ordinary Course of Business with written approval in advance by Buyer ;

(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of a member of the Company Group having a value in the aggregate in excess of $50,000, or that imposes non-monetary relief;

(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement ;

(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;

(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law , or : (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law ); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation ( including wages, salaries and bonuses), except in the ordinary course of business pursuant to existing Company Benefit Plans , or severance, that is paid or payable to any employee ; (iii) hire any employee without Buyer 's prior written consent; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement ; or

(u) agree or commit to do any of the foregoing.

6.2 Exclusivity . From the date hereof through December 1, 2014, the Company Group, Sellers' Representative and Sellers will deal exclusively with Buyer in connection with the proposed Transactions and no such Person shall take or permit any other Person on its behalf to take any action to, directly or indirectly: (a) solicit, initiate, encourage or otherwise entertain any inquiries, proposals or offers from, any Person (other than Buyer or one of its Affiliates) relating to any transaction or series of related transactions involving (i) a merger, consolidation, share exchange, conversion, recapitalization, refinancing, liquidation or acquisition of a member of the Company Group, (ii) a sale of any material amount of assets of a member of the Company Group outside of the ordinary course of business, (iii) a direct or indirect acquisition or purchase of any capital stock or other equity interests of a member of the Company Group, or (iv) any similar transaction or business combination involving a member of the Company Group (each of the above, an " Alternative Transaction "); (b) participate in any discussions or negotiations with, provide any information to, or enter into any agreement with any Person (other than Buyer or one of its Affiliates) in connection with an Alternative Transaction; or (c) accept any proposal or offer from any Person (other than Buyer or one of its Affiliates) relating to an Alternative Transaction. Sellers' Representative will promptly notify Buyer if the Company Group, Sellers' Representative or any Seller receives any such inquiries, proposals or offers and provide Buyer with a copy of any written correspondence, proposals or offers; provided , however , that the term of exclusivity under this Section 6.2 will automatically be extended to December 31, 2014, if Buyer has engaged counsel to pursue a Business Combination and is actively working in good faith to pursue a Business Combination.

6.3 Commercially Reasonable Efforts . Subject to the terms and conditions of this Agreement, Sellers' Representative, Sellers and the Company Group, on the one hand, and Buyer, on the other hand, agree to use their commercially reasonable efforts to take or cause to be taken and to do or cause to be done all such actions and things as are necessary under the terms of this Agreement or under applicable Laws, or as may be advisable or reasonably requested by the other Party or Parties, as applicable, in order to consummate the Transactions. None of the Company Group, Sellers' Representative or Sellers, on the one hand, and Buyer, on the other hand, shall intentionally perform any act which, if performed, or if omitted to be performed, would prevent or excuse the performance of this Agreement by any Party or which would result in any representation or warranty herein contained of such Party being untrue in any material respect as if originally made on and as of the Closing Date. Without limiting the generality of the foregoing, the Parties agree to take all commercially reasonable actions necessary in order to obtain any consent or approval of any third party, including without limitation, any Governmental Authority, which is required in connection with this Agreement or any of the Transactions, and during the Pre-Closing Period, Sellers and the Company Group shall take all actions and use their commercially reasonable efforts to satisfy the conditions to Closing set forth in Section 3.2 .

6.4 Mutual Cooperation . Subject to the following sentence, each of the Parties shall use its commercially reasonable efforts to: (a) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any Claim initiated by a private party; and (b) keep the other Party informed in all material respects and on a reasonably timely basis of any material communication received by such Party from, or given by such Party to any Governmental Authority and of any material communication received or given in connection with any Claim by a private party, in each case regarding any of the Transactions. Nothing contained in this Agreement shall require or obligate any Party to divest, restrict, alter or otherwise bind the use, ownership or operation, as applicable, of its businesses, operations, organization or assets.

6.5 Access to Information; Financial Statements . Prior to the Closing, Sellers, Sellers' Representative and the Company Group shall, and shall cause the Company Group to, permit Buyer and its representatives to have reasonable access (at reasonable times, on reasonable prior notice and in a manner so as not to interfere with the normal business operations of the Company) to the personnel, properties, books, contracts and other records and documents of the Company Group. During the Pre-Closing Period, Company shall prepare and deliver to Buyer, within fifteen (15) days after each calendar month end, consistent with past practices, unaudited financial statements of the Company for each calendar month ending after the date hereof.

6.6 Intercompany Arrangements . Sellers and the Company Group shall ensure that all Affiliate Transactions, other than those set forth on Schedule 6.6 and those fully paid and discharged pursuant to Section 6.8 , shall terminate as of the Closing, such termination to be without further liability whatsoever to the Company Group.

6.7 Employment Agreements . The Company Group shall negotiate in good faith to enter into Employment Agreements, to be effective as of the Closing, with the executives and employees of the Company Group set forth on Schedule 6.7 , which Employment Agreements will include compensation terms consistent with such personnel's compensation levels then existing prior to the Closing and the terms of the Employment Agreements shall be acceptable to Buyer and such executives and employees.

6.8 Payoff of Company Debt . Prior to or in connection with the Closing, Sellers shall cause (including as contemplated by Section 2.2(a) and Section 2.2(d) ), all of the Company Debt outstanding prior to the Closing to be fully paid or discharged, with no continuing liability whatsoever to the Company Group.

6.9 Updated Disclosure . From the date hereof until the Closing, the Sellers, the Company Group or Sellers' Representative, as applicable, shall have the right to supplement or amend the Disclosure Schedules with respect to any matter hereafter arising or of which it becomes aware after the date hereof, which, if existing, occurring or known at the date of this Agreement, would have been required to be set forth or described in the Disclosure Schedules (each a " Supplement "). Any disclosure in any such Supplement that would have cured or eliminated any inaccuracy in or breach of any representation or warranty contained in this Agreement if set forth in the Disclosure Schedules shall be deemed to have eliminated or cured such inaccuracy in or breach of such representation or warranty contained in this Agreement for all purposes, including for purposes of the indemnification or termination rights contained in this Agreement and for purposes of determining whether or not the conditions set forth in Section 3.2 have been satisfied; provided , however , that if the additions or amendments to the Disclosure Schedules included in the Supplements would, in the aggregate, reasonably be expected to result in liabilities of the Company in excess of the Basket, Buyer shall have the right to terminate this Agreement pursuant to Section 10.1(e) .

ARTICLE VII
POST-CLOSING MATTERS

7.1 Transfer Taxes . Seller shall pay all transfer, real property transfer, documentary, sales, use, stamp, duty, recording and similar Taxes (including any penalties, interest and additions to Tax) incurred in connection with this Agreement and the Transactions (together, " Transfer Taxes "). Buyer shall be responsible for preparing and filing all Tax Returns or other applicable documents in connection with all Transfer Taxes, to the extent permitted by applicable Law, provided , however , that Sellers' Representative shall cooperate with Buyer in the preparation and filing of all Tax Returns or other applicable documents for or with respect to Transfer Taxes, including timely signing and delivering such Tax Returns, documents, and certificates as may be necessary or appropriate to file such Tax Returns or establish an exemption from (or otherwise reduce) Transfer Taxes. Notwithstanding anything to the contrary contained in this Agreement, "Transfer Taxes" shall not include any Taxes required to be deducted and withheld with respect to payments made by Buyer to Sellers (under the Code or Treasury Regulations thereunder or any applicable provision of state, local or foreign Law) in connection with the transactions contemplated by this Agreement.

7.2 Conduct of Business with Respect to Taxes . During the Pre-Closing Period:

(a) No member of the Company Group shall make, revoke or amend any Tax election; change any annual accounting period; adopt or change any method of accounting or reverse any accruals (except as required by a change in Law or GAAP ); file any amended Tax Returns ; sign or enter into any closing agreement or settlement agreement with respect to any, or compromise any, Claim or assessment of any Tax liability; surrender any right to claim a refund, offset or other reduction in liability; consent to any extension or waiver of the limitations period applicable to any Claim or assessment, in each case, with respect to Taxes ; or act or omit to act where such action or omission to act could reasonably be expected to have the effect of increasing any present or future Tax liability or decreasing any present or future Tax benefit for any member of the Company Group, Buyer or its Affiliates ; and

(b) Each member of the Company Group shall: (i) timely file all Tax Returns required to be filed by it and all such Tax Returns shall be prepared in a manner consistent with past practice and that is reasonably acceptable to Buyer ; (ii) timely pay all Taxes due and payable; and (iii) promptly notify Buyer of any income, franchise or similar ( or other material) Tax Claim , investigation or audit pending against or with respect to each member of the Company Group in respect of any Tax matters ( or any significant developments with respect to ongoing Tax matters), including material Tax liabilities and material Tax refund claims.

7.3 Cooperation on Tax Matters . Sellers and Buyer shall reasonably cooperate, and shall cause their respective Affiliates, officers, employees, agents, auditors and representatives reasonably to cooperate, in preparing and filing all Tax Returns of each member of the Company Group relating to any Pre-Closing Tax Period or Straddle Period, including maintaining and making available to each other all records necessary in connection with Taxes of each member of the Company Group relating to any Pre-Closing Tax Period or Straddle Period, and in resolving all disputes and audits with respect to all such Pre-Closing Tax Periods and Straddle Periods in accordance with Section 7.7 . Buyer recognizes that Sellers' Representative may need access, from time to time, after the Closing Date, to certain accounting and Tax records and information held by the Company Group to the extent such records and information pertain to events occurring on or prior to the Closing Date; therefore, Buyer agrees that from and after the Closing Date, Buyer shall, and shall cause the Company Group to, retain and maintain such records and information until the later of: (a) six (6) years following the Closing Date; and (b) the applicable statute of limitations with respect to the Tax for which such records or information relate, and allow Sellers' Representative to inspect, review and make copies of such records and information as Sellers' Representative reasonably requests from time to time during normal business hours and after appropriate prior notification.

7.4 Preparation and Filing of Pre-Closing Period Tax Returns for each Member of the Company Group . Sellers' Representative shall, at the cost and expense of Sellers, prepare, or cause to be prepared all Pre-Closing Period Tax Returns required to be filed by or on behalf of each member of the Company Group. All such Pre-Closing Period Tax Returns shall be prepared and filed in a manner that is consistent with the prior practice of such Company, except as required by applicable Law. Drafts of all such Pre-Closing Period Tax Returns shall be delivered to Buyer for its review and approval at least thirty (30) days prior to the Due Date of any such Pre-Closing Period Tax Return; provided , however , that such approval shall not be unreasonably withheld, conditioned or delayed. If Buyer disputes any item on such Pre-Closing Period Tax Return, it shall notify Sellers' Representative (by written notice within fifteen (15) days of receipt of such draft of such Pre-Closing Period Tax Return) of such disputed item (or items) and the basis for its objection. If Buyer does not object by written notice within such period, the amount of Taxes shown to be due and payable on such Pre-Closing Period Tax Return shall be deemed to be accepted and agreed upon, and final and conclusive, for purposes of this Section 7.4 . Buyer and Sellers' Representative shall act in good faith to resolve any dispute prior to the Due Date of any such Pre-Closing Period Tax Return. If Buyer and Sellers' Representative cannot resolve any disputed item, the item in question shall be resolved by Neutral Arbitrator as promptly as practicable (in accordance with the provisions of this Section 7.4 ), whose determination shall be final and conclusive for purposes of this Section 7.4 . The Neutral Arbitrator shall be instructed to use every reasonable effort to complete their services within thirty (30) days after submission of the dispute to them and in any case, as soon as practicable after such submission. The fees and expenses of the Neutral Arbitrator in connection with its work pursuant to this Section 7.4 shall be paid fifty percent (50%) by Buyer and fifty percent (50%) by Sellers. Sellers' Representative shall timely file all such Pre-Closing Period Tax Returns; provided , however , if any such Pre-Closing Period Tax Return is filed after the Closing and Sellers' Representative is not authorized to execute and file such Pre-Closing Period Tax Return by applicable Law, Buyer shall execute and file (or cause to be filed) such Pre-Closing Period Tax Return (as finally determined pursuant to this Section 7.4 ) with the appropriate Taxing Authority. Sellers or Sellers' Representative, acting on behalf of Sellers, shall pay all Pre-Closing Taxes due and payable in respect of all Pre-Closing Period Tax Returns of each member of the Company Group; provided , however , that if any Pre-Closing Period Tax Return is due after the Closing and is to be filed (or caused to be filed) by Buyer, Sellers or Sellers' Representative, acting on behalf of Sellers, shall pay (in immediately available funds) to Buyer the amount of all Pre-Closing Taxes due and payable with respect of such Pre-Closing Period Tax Return (determined pursuant to this Section 7.4 ) no later than three (3) Business Days prior to the earlier of the date such Pre-Closing Period Tax Return is filed or the Due Date of such Pre-Closing Period Tax Return, and Buyer shall timely pay the amount of such Pre-Closing Taxes. Amounts required to be paid by Sellers or Sellers' Representative, acting on behalf of Sellers, pursuant to this Section 7.4 , that are not paid on or prior to the date specified herein shall accrue interest at the simple rate of 5% per annum until paid in full. In the event that such Pre-Closing Period Tax Return reflects any refund, the provisions of Section 7.8 (Tax Refunds) shall control.

7.5 Preparation and Filing of Straddle Period Tax Returns for each Member of the Company Group . Buyer shall, at its expense, prepare and timely file, or cause to be prepared and timely filed, all Straddle Period Tax Returns required to be filed by each member of the Company Group. All Straddle Period Tax Returns shall be prepared and filed in a manner that is consistent with the prior practice of the Company Group, except as required by applicable Law. Buyer shall deliver or cause to be delivered drafts of all Straddle Period Tax Returns to Sellers' Representative for his review and approval at least thirty (30) days prior to the Due Date of any such Straddle Period Tax Return and shall notify Sellers' Representative of Buyer's calculation of Sellers' share of the Taxes of each member of the Company Group (as the case may be) for such Straddle Period (determined in accordance with Section 7.6 ); provided , however , that such approval by Sellers' Representative of any such Straddle Period Tax Returns and such calculations of Sellers' share of the Tax liability for such Straddle Period (determined in accordance with Section 7.6 ) shall not be unreasonably withheld, conditioned or delayed. If Sellers' Representative disputes any item on such Straddle Period Tax Return, he shall notify Buyer (by written notice within fifteen (15) days of receipt of such Straddle Period Tax Return and calculation) of such disputed item (or items) and the basis for his objection. If Sellers' Representative does not object by written notice within such period, such draft of such Straddle Period Tax Return and calculation of Sellers' share of the Taxes for such Straddle Period shall be deemed to have been accepted and agreed upon, and final and conclusive, for purposes of this Section 7.5 . Buyer and Sellers' Representative shall negotiate in good faith to resolve any such dispute prior to the Due Date of such Straddle Period Tax Return. If Buyer and Sellers' Representative cannot resolve any disputed item, the item in question shall be resolved by the Neutral Arbitrator as promptly as practicable (in accordance with the provisions of this Section 7.5 ), whose determination shall be final and conclusive for purposes of this Section 7.5 . The Neutral Arbitrator shall be instructed to use every reasonable effort to complete their services within thirty (30) days after submission of the dispute to them and in any case, as soon as practicable after such submission. The fees and expenses of the Neutral Arbitrator in connection with its work pursuant to this Section 7.5 shall be paid fifty percent (50%) by Buyer and fifty percent (50%) by Sellers. No later than three (3) Business Days prior to the earlier of the date a Straddle Period Tax Return of a member of the Company Group is filed or the Due Date of such Straddle Period Tax Return, Sellers or Sellers' Representative, acting on behalf of Sellers, shall pay (in immediately available funds) to Buyer the amount of all Pre-Closing Taxes required to be paid with respect to such Straddle Period Tax Return (determined pursuant to this Section 7.5 ). Amounts required to be paid by Sellers or Sellers' Representative, acting on behalf of Sellers, to Buyer pursuant to this Section 7.5 that are not paid on or prior to the date specified herein shall accrue interest at the simple rate of 5% per annum until paid in full. In the event that such Straddle Period Tax Return reflects any refund, the provisions of Section 7.8 (Refunds) shall control.

7.6 Computation of Tax Liabilities . To the extent permitted or required, the taxable year of the Company Group that includes the Closing Date shall close as of the end of the Closing Date. Whenever it is necessary to determine the liability for Taxes for a Straddle Period relating to:

(a) Taxes not described in Section 7.6(b) (e.g., Taxes imposed on a periodic basis, such as real property and other ad valorem Taxes ), the determination of Taxes of each member of the Company Group for the portion of the Straddle Period ending on and including the Closing Date shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period ; and

(b) (i) Taxes based on the income or receipts for a Straddle Period , (ii) Taxes imposed in connection with any sale or other transfer or assignment of property ( including all sales and use Taxes) for a Straddle Period , and (iii) withholding Taxes relating to a Straddle Period , the determination of the Taxes of each member of the Company Group for the portion of the Straddle Period ending on and including , and the portion of the Straddle Period beginning and ending after, the Closing Date shall be calculated by assuming that the Straddle Period consisted of two (2) taxable periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of each member of the Company Group for the Straddle Period shall be allocated between such two (2) taxable years or periods on a " closing of the books basis" by assuming that the books of the Company Group were closed at the close of the Closing Date ; provided , however , that exemptions, allowances or deductions that are calculated on an annual basis ( including , but not limited to, depreciation and amortization deductions) will be allocated between the period ending on the Closing Date and the period after the Closing Date in proportion to the number of days in each such period.

7.7 Tax Contests .

(a) Buyer shall deliver a written notice to Sellers' Representative in writing promptly following any demand, Claim , or notice of commencement of a Claim , proposed adjustment, assessment, audit, examination or other administrative or court Proceeding with respect to Taxes of the Company Group for which Sellers may be liable (" Tax Contest ") and shall describe in reasonable detail (to the extent known by Buyer ) the facts constituting the basis for such Tax Contest , the nature of the relief sought, and the amount of the claimed Losses ( including Taxes ), if any (the " Tax Claim Notice "), provided , however , that the failure or delay to so notify Sellers' Representative shall not relieve Sellers of any obligation or liability that Sellers may have to Buyer , except to the extent that Sellers' Representative demonstrates that Sellers are materially and adversely prejudiced thereby.

(b) With respect to Tax Contests for Taxes of a member of the Company Group for a Pre-Closing Tax Period , Sellers' Representative may elect to assume and control the defense of such Tax Contest by written notice to Buyer within thirty (30) days after delivery by Buyer to Sellers' Representative of the Tax Claim Notice . If Sellers' Representative elects to assume and control the defense of such Tax Contest , Sellers : (i) shall bear their own costs and expenses; (ii) shall be entitled to engage their own counsel; and (iii) may (A) pursue or forego any and all administrative appeals, Proceedings , hearings and conferences with any Taxing Authority , (B) either pay the Tax claimed or sue for refund where applicable Law permits such refund suit or (C) contest, settle or compromise the Tax Contest in any permissible manner, provided , however , that Sellers' Representative shall not settle or compromise ( or take other actions described herein with respect to) any Tax Contest without the prior written consent of Buyer (such consent not to be unreasonably withheld, delayed or conditioned) , provided , further , that Sellers' Representative shall not settle or compromise ( or take other actions described herein with respect to) any Tax Contest without the prior written consent of Buyer (which consent may be withheld in the sole discretion of Buyer ) if such settlement or compromise would reasonably be expected to adversely affect the Tax liability of Buyer or any of its Affiliates ( including any member of the Company Group) for any Tax period ending after the Closing Date . If Sellers' Representative elects to assume the defense of any Tax Contest , Sellers' Representative shall: (x) keep Buyer reasonably informed of all material developments and events relating to such Tax Contest ( including promptly forwarding copies to Buyer of any related correspondence, and shall provide Buyer with an opportunity to review and comment on any material correspondence before Sellers' Representative sends such correspondence to any Taxing Authority ); (y) consult with Buyer in connection with the defense or prosecution of any such Tax Contest ; and (z) provide such cooperation and information as Buyer shall reasonably request, and Buyer shall have the right, at its expense, to participate in (but not control ) the defense of such Tax Contest ( including participating in any discussions with the applicable Tax Authorities regarding such Tax Contests ).

(c) In connection with any Tax Contest that relates to Taxes of a member of the Company Group for a Pre-Closing Tax Period that: (i) Sellers' Representative does not timely elect to control pursuant to Section 7.7(b) ; or (ii) Sellers' Representative fails to diligently defend, such Tax Contest shall be controlled by Buyer (and Sellers shall reimburse Buyer for all reasonable costs and expenses incurred by Buyer relating to a Tax Contest described in this Section 7.7(c) ) and Sellers' Representative agrees to cooperate with Buyer in pursuing such Tax Contest . In connection with any Tax Contest that is described in this Section 7.7(c) and controlled by Buyer , Buyer shall: (x) keep Sellers' Representative informed of all material developments and events relating to such Tax Contest ( including promptly forwarding copies to Sellers' Representative of any related correspondence and shall provide Sellers' Representative with an opportunity to review and comment on any material correspondence before Buyer sends such correspondence to any Taxing Authority ); (y) consult with Sellers' Representative in connection with the defense or prosecution of any such Tax Contest ; and (z) provide such cooperation and information as Sellers' Representative shall reasonably request, and, at his own cost and expense, Sellers' Representative shall have the right to participate in (but not control ) the defense of such Tax Contest ( including participating in any discussions with the applicable Tax Authorities regarding such Tax Contests ).

(d) In connection with any Tax Contest for Taxes of a member of the Company Group for any Straddle Period , such Tax Contest shall be controlled by Buyer ; provided , however , that Buyer shall not settle or compromise ( or take such other actions described herein with respect to) any Tax Contest without the prior written consent of Sellers' Representative , with such consent not to be unreasonably withheld, conditioned or delayed . Buyer shall: (x) keep Sellers' Representative informed of all material developments and events relating to such Tax Contest ( including promptly forwarding copies to Sellers' Representative of any related correspondence and shall provide Sellers' Representative with an opportunity to review and comment on any material correspondence before Buyer sends such correspondence to any Taxing Authority ); (y) consult with Sellers' Representative in connection with the defense or prosecution of any such Tax Contest ; and (z) provide such cooperation and information as Sellers' Representative shall reasonably request, and, at his own cost and expense acting on behalf of Sellers , Sellers' Representative shall have the right to participate in (but not control ) the defense of such Tax Contest ( including participating in any discussions with the applicable Tax Authorities regarding such Tax Contests ).

(e) Notwithstanding anything to the contrary contained in this Agreement , the procedures for all Tax Contests shall be governed exclusively by this Section 7.7 (and not Section 8.4 ) .

7.8 Tax Refunds . Buyer may, at its option, cause any member of the Company Group to elect, where permitted by applicable Law, to carry forward or carry back any Tax attribute carryover that would, absent such election, be carried back to a Pre-Closing Tax Period or Straddle Period. Buyer shall promptly notify Sellers' Representative of and pay (or cause to be paid) to Sellers' Representative on behalf of Sellers: (a) any refund of Taxes paid by any member of the Company Group for any Pre-Closing Tax Period actually received by such member of the Company Group; or (b) a portion of any refund of Taxes paid by any member of the Company Group for any Straddle Period (such portion to be allocated consistent with the principles set forth in Section 7.8 hereof) actually received by such member of the Company Group, in each case, net of any Tax liabilities or increase in Tax liabilities imposed on Buyer, or any member of the Company Group (or any Affiliate) resulting from such refund; provided , however , that Sellers shall not be entitled to any refund to the extent such refund relates to a carryback of a Tax attribute from any period ending after the Closing Date. Buyer shall pay (or cause to be paid) the amounts described in the second sentence of this Section 7.8 within thirty (30) days after the actual receipt of the Tax refund giving rise to Buyer's obligation to make payment hereunder with respect thereto. At the request of Sellers' Representative, Buyer shall reasonably cooperate with Sellers' Representative in obtaining any such refunds for which Sellers are entitled pursuant to this Section 7.8 , including through the filing of amended Tax Returns or refund claims as prepared by Sellers' Representative, at the expense of Sellers; provided , however , that any such amended Tax Return shall be prepared by Sellers' Representative, Sellers' Representative shall deliver or cause to be delivered drafts of any such amended Tax Return to Buyer for its review prior to the time such amended Tax Return may be filed and any such amended Tax Return shall be subject to the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed; and provided , further , that Buyer shall not be required to cooperate with Sellers' Representative in obtaining such refunds (or, notwithstanding anything to the contrary contained herein, consent to the filing of such amended Tax Return) if such refund could reasonably be expected to adversely affect Buyer, any member of the Company Group (or any Affiliate) in any Straddle Period or Post-Closing Period.

7.9 Adjustments to Purchase Price in Connection With Taxes . Buyer and Sellers agree to treat any amounts payable after the Closing by Sellers to Buyer (or by Buyer to Sellers) pursuant to this Agreement as an adjustment to the Purchase Price, unless a final determination by the appropriate Taxing Authority or court causes any such payment not to be treated as an adjustment to the Purchase Price for Tax purposes.

7.10 Payments in Connection with Taxes . Notwithstanding anything to the contrary contained in this Agreement (but subject to this Article VII ), payment by Sellers or Sellers' Representative, acting on behalf of Sellers, of any amount due related or attributable to Taxes or Tax Returns pursuant to this Agreement shall be made within five (5) Business Days following written notice by Buyer that payment of such amounts to the appropriate Taxing Authority is due (or, in connection with this Agreement, is required to be paid by Sellers to Buyer or are the responsibility of Sellers in whole or in part); provided , however , that Sellers or Sellers' Representative, acting on behalf of Sellers, shall not be required to make any payment earlier than three (3) Business Days before it is due (without regard to any extensions for filing the applicable Tax Return) to the appropriate Taxing Authority. Amounts required to be paid by Sellers or Sellers' Representative, acting on behalf of Sellers, for Taxes, or otherwise, that are not paid on or prior to the date specified herein shall accrue interest at the simple rate of 8% per annum until paid in full.

7.11 Non-Compete . Each of Nick Eckert, Meindert Honig and Ernst Retief (each a "Restricted Seller") hereby acknowledges that (i) in addition to disposing of such Seller's ownership interest in the Company Group as set forth in this Agreement, such Seller is selling all the goodwill of the Company Group associated with or attributable to such Seller's Shares, (ii) such Seller has contributed to the development of the goodwill of the Company Group, and (iii) the Parties have agreed upon the Purchase Price to specifically include and reflect such sale of goodwill. In consideration of the sale of such Seller's ownership in the Company Group, including the sale of all goodwill, each Restricted Seller agrees that, during such Restricted Seller's applicable Non-Compete Restrictive Period (as defined below), such Restricted Seller shall not, and shall cause each of its Affiliates not to, without the express written consent of Buyer (which may be withheld in Buyer's sole and absolute discretion), directly or indirectly, in any capacity (whether individually or as owner, stockholder, partner, director, officer, trustee, employee, agent or consultant, or in any other capacity), whether or not for pecuniary benefit, engage in, operate, manage, consult with, advise, carry on, take part in, be employed by or invest in, anywhere within the countries in which the Company Group transacts business during the three (3) year period immediately prior to the Closing Date, a business that sells or offers any products or services that are similar to those sold or offered by the Company Group immediately prior to the Closing Date, specifically including email marketing services, and/or any products or services offered by the Company Group at any time during the three (3) year period preceding the date of this Agreement. Notwithstanding the restrictions set forth above, nothing herein shall prohibit any Restricted Seller or any of his/her/its Affiliates from making investments in the ordinary course of business in the securities of any Person that are listed on any national stock exchange or NASDAQ; provided , that: (i) the securities "beneficially owned" (as defined for purposes of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) by such Seller and his, her or its Affiliates shall, in the aggregate, represent no more than 5% of the total voting power of such Person; and (ii) such investment is a passive investment with respect to which neither such Seller nor any of such Seller's Affiliates (A) intends to or has the right to influence (other than through the voting of shares) or direct the operations or management of such Person or (B) is a participant with any other Person in any group with such intention or right. Each Restricted Seller's "Non-Compete Restrictive Period" shall be the period beginning at the Closing and ending at the later of three years following Closing or two years following termination of such Restricted Seller's employment with the Company Group, or their successor(s), if any.

7.12 Non-Solicitation . Each Restricted Seller agrees that, during such Restricted Seller's Non-Compete Restricted Period, such Restricted Seller shall not, and shall cause its Affiliates not to, directly or indirectly, solicit any employee of a member of the Company Group for employment, or solicit, suggest, induce or encourage any employee of a member of the Company Group to seek employment or business opportunities other than with the Company Group and its Affiliates.

7.13 Further Assurances . From and after the Closing, as and when required by any Party, each Party will execute and deliver, or cause to be executed and delivered, all such documents and instruments and will take, or cause to be taken, at the requesting Party's expense, all such further or other actions, as such other Party may reasonably deem necessary or desirable to consummate the Transactions.

7.14 Release by Sellers . On the Closing Date, each Seller (each a " Seller Releasor "), on behalf of such Seller and such Seller's respective beneficiaries, heirs, successors and assigns irrevocably, absolutely and fully releases, remises, relieves, relinquishes, waives and forever discharges the Company Group, and each of its officers, directors, employees, agents, Affiliates, direct and indirect equity holders, lenders, representatives, successors and assigns (collectively, the " Buyer Released Parties "), from any and all Claims, counterclaims, damages, losses, payments, obligations, debts, accountings, Liens, costs and expenses (including attorneys' fees and costs) of any kind or nature, fixed or contingent, direct or indirect, several or otherwise, known or unknown, suspected or unsuspected, choate or inchoate, claimed or unclaimed, in Law or in equity, whether arising from, in or out of tort, statute (whether state, federal or local) or Contract or any other common law, administrative or similar cause of action, right or remedy (collectively, the " Released Claims "), that such Seller Releasor may have against any of the Buyer Released Parties from the beginning of time until the Closing Date, other than the Retained Claims (as hereinafter defined), rights under this Agreement and any ancillary agreements. " Retained Claims " means any Claims of a Seller Releasor for: (a) any amounts due under or with respect to any benefit plan; (b) Claims of the Seller Releasor for any salary, bonus or other fringe benefits earned prior to the Closing, including the reimbursement of any business expenses incurred by the Seller Releasor prior to the Closing for which the Seller Releasor is entitled to reimbursement under the policies of the Company Group in effect immediately prior to the Closing; (c) indemnification or advancement of expenses arising under applicable Law or the Charter and the Bylaws of any member of the Company Group; (d) indemnity obligations, if any, under Article VIII ; (e) rights, Claims and actions arising out of or under any insurance policies or this Agreement, the Employment Agreements; (f) claims that cannot be released as a matter of Law, and (g) claims arising in the Ordinary Course of Business under the Contracts set forth in Schedule 6.6 . Such Seller Releasor, on behalf of such Seller Releasor's respective heirs, successors and assigns, specifically waives the benefits of any statutory or common law of any state, which in effect provides that a general release does not extend to Released Claims which the creditor does not know or suspect to exist in his, her or its favor. It is expressly understood and agreed that the releases contained in this Section 7.14 are intended to cover and do cover all known facts and/or Seller Released Claims, as well as any further facts and/or Seller Released Claims within the scope of such Released Claims not known or anticipated, but which may later develop or be discovered, including all the effects and consequences thereof. Such Seller Releasor, on behalf of such Seller Releasor's respective successors and assigns, acknowledges that he, she or it may hereafter discover facts in addition to, or different from, those which he, she or it now believes to be true with respect to the subject matter of the Seller Released Claims released in this Agreement, but agree that they have taken that possibility into account in reaching this Agreement, and that the releases given in this Agreement will be and remain in effect notwithstanding the discovery or existence of any such additional or different facts, as to which such Seller Releasor expressly assumes the risk. Each Seller Releasor acknowledges that the Laws of many states provide substantially the following: " A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR ." Each Seller Releasor acknowledges that such provisions are designed to protect a Party from waiving claims which it does not know exist or may exist. Nonetheless, each Seller Releasor agrees that, effective as of the Closing Date, such Seller Releasor shall be deemed to waive any such provision.

7.15 Proprietary Information . From and after the Closing, each Seller shall not disclose or make use of (except to pursue rights under this Agreement and the Exhibits attached hereto or to carry out the duties of their employment by Buyer (or any Affiliate of Buyer, including any member of the Company Group)), and shall use their respective commercially reasonable efforts to cause all of their respective Affiliates not to disclose or make use of, any knowledge, information or documents of a confidential or proprietary nature or not generally known to the public with respect to the Business, Buyer or any of their respective Affiliates (including any member of the Company Group) or the businesses of any of the foregoing (including the financial information, technical information or data relating to the Company Group's products and services and the names of customers of the Company Group, as well as filings and testimony (if any) presented in the course of any proceeding pursuant to Article XI and any award and the tribunal's reasons therefor relating to the same), (such knowledge, information or documents, "Proprietary Information"); provided , however , that the term "Proprietary Information" does not include information that (a) was, is or becomes public knowledge other than through improper disclosure by any of the Sellers or an Affiliate of any of the Sellers, or (b) is lawfully acquired by a Seller or an Affiliate of any of the Sellers, from and after the Closing from Sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. A Seller or any of its Affiliates may disclose Proprietary Information as requested or required by (y) any applicable Law or (z) oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process; provided , however , that (i) such Seller shall give prompt notice of such requirement to Buyer, (ii) such Seller shall disclose only such portion of the Proprietary Information as is requested or required and (iii) if available, such Seller will use its commercially reasonable efforts to obtain reasonable assurance that confidential treatment will be accorded such disclosed Proprietary Information. Notwithstanding anything to the contrary in this Section 7.15 , in the event of a conflict between the obligations set forth in this Section 7.15 and the obligations set forth in the Non-Disclosure, Non-Solicitation, Post-Employment Obligations and Invention Assignment Agreement, if any, between each Seller and Buyer (the " Employment NDAs "), the terms of the Employment NDAs shall control.

7.16 Reserved

ARTICLE VIII
INDEMNIFICATION

8.1 Indemnification by the Company Group and Sellers . Subject to the limitations set forth in this Article VIII , the Company Group (only with respect to any period prior to the Closing) and each Seller hereby agrees to jointly and severally ( provided , that, for purposes of the representations and warranties made by each Seller in an individual capacity in Sections 4.1 , 4.2 , and 4.3 , and for any breach by an individual Seller of an obligation required to be performed by such Seller prior to the Closing, Sellers agree to severally and not jointly), indemnify, hold harmless and reimburse Buyer and the Company Group (only with respect to any period after the Closing), and their respective successors and assigns and each of the foregoing's respective stockholders, officers, directors, employees and agents (collectively, the " Buyer Indemnitees ") from and against any and every Claim, action, loss, liability, damage, cost, expense (including reasonable attorneys' fees), deficiency, penalty, award, judgment, fine, Taxes, notice of violation, notice of liability or charge and any Claims in respect thereof (including amounts paid in settlement and reasonable costs of investigation and legal fees and expenses), but specifically excluding consequential, punitive, special, incidental or indirect damages or losses, including, without limitation, business interruption, loss of future revenue, diminution in value, profits or income, or loss of business reputation or opportunity (collectively, and as so excluded, " Losses "), Buyer Indemnitees incur or sustain that are based upon, related to, result from or arise out of:

(a) any breach or inaccuracy of any representation or warranty of the Company Group or Sellers contained in or made pursuant to Article IV of this Agreement ;

(b) any breach of, or failure to perform or observe, any covenant, agreement or obligation to be performed by the Company Group (to the extent to be performed prior to the Closing) or any Seller or Sellers' Representative contained in or made pursuant to this Agreement ;

(d) except to the extent already accounted for in the calculation of Consolidated Net Assets , any Company Transaction Costs ;

(e) except to the extent already accounted for in the calculation of Consolidated Net Assets , any Closing Company Debt; and

(f) fifty percent (50%) of any liability related to, in connection with or arising from the Contingent IP Liability.

8.2 Indemnification by Buyer . From and after the Closing, subject to any withholding as contemplated hereby, Buyer hereby agrees to indemnify, hold harmless and reimburse Sellers and their successors and assigns and each of the foregoing's respective stockholders, officers, directors, employees and agents (collectively, the " Seller Indemnitees ", and together with Buyer Indemnitees, the " Indemnitees ") from and against any Losses that Sellers incur or sustain that are based upon, related to, result from or arise out of:

(a) any breach or inaccuracy of any representation or warranty of Buyer contained in or made pursuant to Article IV of this Agreement ;

(b) any breach of, or failure to perform or observe, any covenant, agreement or obligation to be performed by the Company Group (to the extent to be performed after the Closing) or Buyer contained in or made pursuant to this Agreement ; and

8.3 Limitations on Liability .

(a) Survival . The representations and warranties contained in Article IV of this Agreement shall survive the Closing until December 31, 2015 (the " Survival Period "), provided , however , that (i) the Fundamental Representations shall survive and continue indefinitely, (ii) no such limitation will apply in the event that the applicable breach is the result of fraud or intentional misrepresentation and (iii) if written notice of a Claim for Losses based upon breach of an applicable representation or warranty has been given to Sellers' Representative or Buyer , as applicable, prior to the expiration of the Survival Period , then the applicable representation(s) and/or warranty(ies) shall survive as to such Claim until such Claim has been fully resolved. The Parties hereto specifically and unambiguously intend that the survival periods that are set forth in this Section 8.3(a) (other than with respect to clause (i) above), for the representations and warranties contained herein shall replace any statute of limitations for such representations or warranties that would otherwise be applicable. Any covenant or agreement contained herein to be performed prior to or after the Closing shall survive the Closing for the Survival Period; provided , however , that the General Covenants shall survive for two (2) years from Closing and all other covenants shall survive indefinitely.

(b) Sellers ' Cap and Basket .

(i) The total aggregate liability of Sellers under Section 8.1(a) , Section 8.1(b) , and Section 8.1(f) , shall not exceed an amount equal to the Escrow Amount (the " Cap "); provided , however , that the Cap shall not apply to limit any Losses resulting from breaches of a Fundamental Representation or breaches of any covenant other than the General Covenants. The total aggregate liability of Sellers under Section 8.1 shall not exceed 100 % of the Purchase Price. Notwithstanding the foregoing, none of the limitations set forth in this Section 8.3(b)(i) shall apply to fraud, intentional misrepresentation or willful misconduct, and in no event shall Sellers' aggregate liability for all or any portion of the Contingent IP Liability exceed $485,000.

(ii) The Company Group and the Sellers shall have no obligation to indemnify any Buyer Indemnitee pursuant to this Article VIII , unless and until the aggregate of all Losses suffered or incurred by all Buyer Indemnitees exceeds One Hundred Thousand Dollars ($100,000) (the " Basket "), at which time such Buyer Indemnitees shall be entitled to be indemnified for all Losses in excess of the Basket subject to the other limitations set forth herein; provided , however , that the Basket shall not apply with respect to Losses arising out of breaches of any Fundamental Representation, or in the case of fraud or intentional misrepresentation.

(c) Duty to Mitigate . Each Indemnitee shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss .

(d) Exclusive Remedy . Subject to the provisions regarding specific performance set forth in Section 12.8 , the remedies set forth in this Article VIII shall be the sole and exclusive remedies of the Parties with respect to this Agreement or any other document required to be delivered hereby or the Transactions contemplated hereby or thereby; provided , however , that in the event of a termination of this Agreement , or if the Closing does not otherwise occur, the Parties reserve all rights and remedies as a result of any breach of this Agreement , except as otherwise provided in this Agreement .

8.4 Third Party Claims .

(a) In the event that any Third Party Claim is asserted or commenced against an Indemnitee with respect to which such Indemnitee is entitled to indemnification under this Article VIII , the Indemnitee shall: (A) promptly notify the other Party of its existence, setting forth in writing with reasonable specificity the facts and circumstances of which such Indemnitee received notice; and (B) specify the basis hereunder upon which the Indemnitee's Claim for indemnification is asserted. Any notice of a Third Party Claim delivered by a Buyer Indemnitee to Sellers' Representative shall satisfy any obligation of such Buyer Indemnitee to provide notice to any of Sellers pursuant to this Section 8.4 .

(b) Except as herein provided, the Indemnitee shall not, and the Party from whom indemnification is sought (the " Indemnitor ") shall, have the right to contest, defend, litigate or settle such Third Party Claim , if the defense of a Third Party Claim is so tendered and within thirty (30) days thereafter the Indemnitor accepts such tender and acknowledges in writing without qualification its indemnification obligation hereunder , subject only to the limitations on indemnification set forth in this Agreement , including Section 8.3 and Section 8.5 . The Indemnitee shall have the right to be represented by counsel at its own expense in any such contest, defense, litigation or settlement conducted by the Indemnitor . The Indemnitor shall lose its right to contest, defend, litigate and settle the Third Party Claim if it shall fail to diligently contest the Third Party Claim . So long as the Indemnitor has not lost its right to contest, defend, litigate and settle as herein provided, the Indemnitor shall have the right to contest, defend and litigate the Third Party Claim and shall have the right to enter into any settlement of any Third Party Claim ; provided , that such settlement includes an unconditional written release from all liability in respect of such Third Party Claim ; provided , further , that the Indemnitor may not enter into any settlement of any Third Party Claim without the prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed ) of the Indemnitee if pursuant to or as a result of such settlement: (A) injunctive or other equitable relief would be imposed against the Indemnitee ; (B) such settlement would or could reasonably be expected to lead to any liability or create any financial or other obligation on the part of the Indemnitee ; or (C) such settlement would adversely affect the conduct of the Business . The Indemnitor shall not be entitled to assume control of a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if: (X) the Third Party Claim relates to or arises in connection with any criminal proceeding , action, indictment or allegation; (Y) the Third Party Claim seeks injunctive or other equitable relief, or Buyer reasonably believes that the Third Party Claim , if

adversely determined, would impair in any material respect the financial condition, business , operations, reputation or prospects of Buyer ; or (Z) the interests of the Indemnitee in the Third Party Claim is or can reasonably be expected to be adverse to the interests of the Indemnitor . If the Indemnitee has assumed control of the defense of a Third Party Claim pursuant to the foregoing sentence, it shall not agree to any settlement without the consent of the Indemnitor (which consent shall not be unreasonably withheld, conditioned or delayed ), provided Indemnitor has acknowledged in writing without qualification its indemnification obligation hereunder , subject only to the limitations on indemnification set forth in this Agreement , including Section 8.3 and Section 8.5 . Subject to any applicable limitations set forth in Section 8.3 and Section 8.5 , all expenses ( including attorneys' fees) incurred by the Indemnitor in connection with the foregoing shall be paid by the Indemnitor . If an Indemnitee is entitled to indemnification against a Third Party Claim , and the Indemnitor fails to accept a tender of the defense of a Third Party Claim pursuant to this Section 8.4(b) , or if, in accordance with the foregoing, the Indemnitor shall lose its right to contest, defend, litigate and settle such a Third Party Claim , the Indemnitee shall have the right, without prejudice to its right of indemnification hereunder , in its discretion exercised in reasonable good faith and upon the advice of counsel, to contest, defend and litigate such Third Party Claim , and may settle such Third Party Claim , either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable. If, pursuant to the preceding sentence, the Indemnitee so contests, defends, litigates or settles a Third Party Claim for which it is entitled to indemnification hereunder , the Indemnitee shall be reimbursed by the Indemnitor for the reasonable attorneys' fees and other expenses of contesting, defending, litigating and settling the Third Party Claim which are incurred from time to time, promptly following the presentation to the Indemnitor of itemized bills for such attorneys' fees and other expenses, subject, however, to any applicable limitations set forth in Section 8.3 and Section 8.5 . The Indemnitor and Indemnitee shall reasonably cooperate with one another in the contest, defense or litigation of any Third Party Claim .

(c) Sellers' Representative shall represent Sellers in all matters related to Third Party Claims and, in accordance with Article IX , shall control all decisions to be made by or otherwise concerning Sellers with respect to any Third Party Claims .

8.5 Reserved .

8.6 Escrow Funds . From and after the Closing (but subject to the provisions of this Article VIII and the Escrow Agreement) until December 31, 2015 (the " Indemnity Escrow Period "), Buyer Indemnitees shall be entitled, in accordance with the terms of the Escrow Agreement, to receive Escrow Shares or proceeds from the Indemnity Escrow Funds in respect of any Losses suffered or incurred by any Buyer Indemnitee to the extent such Losses result from or arise out of matters which entitle such Buyer Indemnitee to indemnification under Article VIII . During the Indemnity Escrow Period, the indemnification obligations of Sellers pursuant to this Article VIII will be first satisfied by a distribution out of the Escrow Account to the applicable Buyer Indemnitee of a number of Escrow Shares having an aggregate value equal to the amount of such Losses as calculated pursuant to Section 8.6 . Following the release to Buyer Indemnitees of all Escrow Shares in accordance with the preceding sentence, the indemnification obligations of Sellers will next be satisfied from the cash portion of the Indemnity Escrow Funds until such funds have been exhausted or the Claims for indemnification shall exceed the then-current balance in the Indemnity Escrow Funds, and thereafter, subject to the limitations in this Article VIII , directly by Sellers pursuant to this Article VIII . A distribution out of the Escrow Account in accordance with the immediately preceding two sentences shall be the sole and exclusive remedy of the Buyer Indemnitees for all Losses relating to claims for indemnification pursuant to Section 8.1 (other than Losses arising out of arising out of breaches of any Fundamental Representation or in the case of fraud or intentional misrepresentation). The " Indemnity Escrow Funds " means the then-current amounts held in the Escrow Account, including any dividends, interest, distributions and other income received in respect thereof, less any losses on investments thereof, less distributions thereof in accordance with this Agreement and the Escrow Agreement. At the end of the Indemnity Escrow Period, the Indemnity Escrow Funds, less any amounts subject to a pending Claims Notice (as defined in the Escrow Agreement), shall be disbursed to Sellers' Representative and/or Sellers in accordance with the terms and conditions of the Escrow Agreement.

8.7 Value of Escrow Shares . In the event that a distribution of Escrow Shares out of the Escrow Account is required under the terms of this Agreement to satisfy any amount due and owing to Buyer Indemnitees, such shares shall be valued at the average of (i) the Buyer's average market closing price on NASDAQ for the ten (10) days immediately preceding the Closing and (ii) the Buyer's average market closing price on NASDAQ for the ten (10) days immediately preceding the release of the shares to such Buyer Indemnitee.

8.8 Treatment of Indemnification Payments . For all purposes hereunder, any indemnification payments made pursuant to this Article VIII of this Agreement shall, to the extent permitted by applicable Law, be treated as an adjustment to the Purchase Price.

8.9 Escrow Fees . Buyer shall be responsible for all fees and costs of the Escrow Agent.

8.10 No Double Recovery . For the avoidance of doubt, an Indemnitee will be permitted to recover with respect to any particular Loss suffered by such Indemnitee only one time as it is the Parties' intent that once any particular Loss has been recovered by a particular Indemnitee under one provision, such Loss no longer exists with respect to such Indemnitee and, therefore, recovery by such particular Indemnitee for such same Loss under another provision would constitute an unintended and prohibited "double" recovery.

ARTICLE IX
SELLERS' REPRESENTATIVE

9.1 Appointment of Sellers' Representative . By execution and delivery of this Agreement and/or acceptance of any consideration contemplated by Article II , each Seller, for itself, himself or herself, and for its, his or her successors and assigns, hereby irrevocably makes, constitutes and appoints GraphicMail Sellers' Rep, LLC (the " Sellers' Representative "), to act for and on behalf of such Seller in connection with this Agreement and the Transactions and with respect to any Claim or matter arising under this Agreement, whether before or after Closing, and Nicholas Eckert, hereby accepts such appointment and agrees to serve without compensation. Each Seller acknowledges that the appointment of GraphicMail Sellers' Rep, LLC as Sellers' Representative and the power of attorney granted in this Section 9.1 : (i) is coupled with an interest and is irrevocable; and (ii) shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Seller.

9.2 Powers and Authority of Sellers' Representative . In furtherance of the appointment of Sellers' Representative, each Seller fully and without restriction:

(a) Agrees to be bound by all notices given and received and agreements and determinations made by and documents executed and delivered by Sellers' Representative pursuant to or arising under this Agreement .

(b) Authorizes Sellers' Representative to undertake any or all of the following on their behalf:

(i) Deliver to Buyer all certificates, documents and instruments to be delivered to Buyer by Sellers pursuant to this Agreement , together with any certificates and documents executed by Sellers and deposited with Sellers' Representative for such purpose;

(ii) Receive from Buyer , as paying agent, the Closing Cash Payment and all other sums payable to Sellers under this Agreement , and all certificates, documents and instruments to be delivered to Sellers by Buyer pursuant to this Agreement ;

(iii) Dispute or refrain from disputing any claim made by Buyer under this Agreement , including , but not limited to, the resolution of the Consolidated Net Assets , all claims for indemnification by Sellers or against Sellers and the resolution of any Tax matter ( including all matters contemplated pursuant to Section 7.4 , Section 7.5 and Section 7.7 ) and to negotiate, compromise, litigate or resolve any such matters on behalf of Sellers ;

(iv) Coordinate payment of, and pay, any amounts owing to Buyer from Sellers under this Agreement ;

(v) Exercise or refrain from exercising any remedies available to Sellers under this Agreement ;

(vi) Sign and deliver any releases or waivers, or other documents with respect to any dispute or remedy;

(vii) Waive any condition contained in this Agreement and negotiate, execute and deliver any amendment or amendments to this Agreement ;

(viii) Execute the Escrow Agreement on behalf of Sellers and act on Sellers ' behalf with respect to all matters arising under the Escrow Agreement ( including any disbursements therefrom);

(ix) Receive into a bank account maintained by Sellers' Representative for the sole purpose of receiving monies owed to Sellers under this Agreement all amounts payable by Buyer under this Agreement and to pay to each Seller such Person 's share of such amounts in accordance with Schedule 2.2(a)(i );

(x) Pay out of funds coming into the hands of Sellers' Representative from Buyer or the Escrow Agent all fees and expenses of Sellers (and of Sellers' Representative acting in such capacity) incurred in connection with the Transactions , including without limitation the fees and expenses of counsel, accountants and other professional advisors incurred prior to and subsequent to Closing ;

(xi) Retain on behalf of Sellers such counsel, accountants and other professional advisors as Sellers' Representative reasonably deems necessary to assist in the performance of his duties hereunder and pay the fees, costs and expenses thereof out of the funds coming into the hands of Sellers' Representative ;

(xii) Provide periodic written accountings to Sellers detailing funds received by Sellers' Representative , expenses paid and distributions paid; and

(xiii) Give and receive such notices and instructions and do or refrain from doing such other things as Sellers' Representative deems necessary or appropriate to carry out the provisions of this Agreement in the best interests of Sellers .

9.3 Seller Reserve Amount . The Seller Reserve Amount shall be used by the Sellers' Representative for the payment of out-of-pocket expenses incurred by the Sellers' Representative in connection with the performance of the Sellers' Representative's duties and obligations hereunder. The Seller Reserve Amount shall be available to the Sellers' Representative in addition to any amounts permitted to be paid to the Sellers' Representative pursuant to this Article IX. Notwithstanding anything to the contrary herein, in no event shall any Indemnified Party have any rights in or to the Seller Reserve Amount. Promptly following the distribution of the entire remaining balance of the Indemnity Escrow Shares pursuant to the terms of the Indemnity Escrow Agreement, the remainder of the Seller Reserve Amount, if any, shall be distributed by the Sellers' Representative or its designated agent, as applicable, to the Sellers in accordance with the percentages set forth on Schedule 2.2(a)(i) .

9.4 Limitation of Liability . To the maximum extent permissible by applicable Law, the Sellers' Representative will incur no liability with respect to the Sellers with respect to any action or inaction taken or failed to be taken in connection with its services as the Sellers' Representative, except for its own gross negligence or willful misconduct. The Sellers agree that, in all questions arising under this Agreement, or the Escrow Agreement, the Sellers' Representative may rely on the advice of counsel, and the Sellers' Representative will not be liable to any Seller for anything done, omitted or suffered in good faith by the Sellers' Representative based on such advice. The Sellers' Representative may receive compensation for services as the Sellers' Representative from the Sellers, and shall receive (i) the Seller Reserve Amount in accordance with Section 2.2(a), and (ii) reimbursement from, and be indemnified severally and not jointly by, the Sellers for any and all Losses incurred by the Sellers' Representative in the performance or discharge of its duties pursuant to this Article IX . The Sellers acknowledge and agree that the foregoing indemnities shall survive the resignation or removal of the Sellers' Representative or the termination of this Agreement. Unless the Sellers pay all such Losses upon demand by the Sellers' Representative, the Sellers' Representative shall have no obligation to the Sellers to incur such Losses, or to continue to perform any duties hereunder. The Sellers' Representative may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable with respect to the Sellers only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. Anything in this Agreement to the contrary notwithstanding, in no event shall the Sellers' Representative be liable to the Sellers for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Sellers' Representative has been advised of the likelihood of such loss or damage and regardless of the form of action.

9.5 Successor Representatives . If Sellers' Representative resigns, dies or becomes incapacitated, his successor will be appointed by a majority of Sellers. The decisions and actions of any successor Sellers' Representative will be, for all purposes, those of Sellers' Representative as if originally named herein. The death or incapacity of any Seller will not terminate the authority and agency of Sellers' Representative as herein designated and their successors as provided for herein. Sellers' Representative shall provide prompt written notification to Sellers and Buyer of the identity of any newly appointed Sellers' Representative.

9.6 Buyer and Escrow Agent Reliance . Buyer and the Escrow Agent will be entitled to rely exclusively upon any communication given or other action taken by Sellers' Representative and will not be liable to Sellers or any other Person for any action taken or not taken in reliance upon the direction of Sellers' Representative. Buyer and the Escrow Agent will not be obligated to inquire as to the authority of Sellers' Representative with respect to the taking of any action that Sellers' Representative takes on behalf of Sellers.

ARTICLE X
TERMINATION

10.1 Termination . This Agreement may be terminated at any time prior to the Closing as follows:

(a) By the mutual written consent of Buyer and Sellers' Representative ;

(b) By Sellers' Representative (if none of Sellers or any member of the Company Group are then in breach of any material term of this Agreement ), if Buyer shall: (i) fail to perform in any material respect its agreements contained in this Agreement required to be performed on or prior to the Closing Date ; or (ii) materially breaches any of its representations, warranties or covenants contained in this Agreement , which failure or breach is not cured within ten (10) days after Sellers' Representative has notified Buyer in writing of his intent to terminate this Agreement pursuant to this Section 10.1(b) ;

(c) By Sellers' Representative , upon written notice to Buyer , if the Closing has not occurred on or before December 31, 2014 for any reason other than delay or nonperformance of any of Sellers or the Company Group;

(d) By Buyer (if Buyer is not then in breach of any material term of this Agreement ), if any of Sellers or any member of the Company Group shall: (i) fail to perform in any material respect their or its agreements contained in this Agreement required to be performed on or prior to the Closing Date ; or (ii) materially breach any of their or its respective representations, warranties or covenants contained in this Agreement , which failure or breach is not cured within ten (10) days after Buyer has notified Sellers' Representative in writing of Buyer 's intent to terminate this Agreement pursuant to this Section 10.1(d) ;

(e) By Buyer , upon written notice to Sellers' Representative , if (i) the additions or amendments to the Disclosure Schedules included in the Supplements would, in the aggregate, reasonably be expected to result in liabilities of the Company in excess of the Basket, or (ii) the Closing has not occurred on or before December 31, 2014 for any reason other than delay or nonperformance of Buyer ;

(f) By Sellers' Representative , on the one hand, or by Buyer , on the other hand, if there shall be any final, non-appealable, order, writ, injunction or decree of any Governmental Authority of competent jurisdiction binding on Sellers or the Company Group, or on Buyer , which prohibits or restrains such other Person from consummating the Transactions ;

(g) In the event the Base Purchase Price is to be reduced by more than five percent (5%) as a result of deducting the Estimated Reduction Amount, Sellers may terminate this Agreement and will not be obligated to proceed to close the Transactions , unless Buyer agrees to a Reduction Factor of ninety-five percent (95%), and still wishes to close the Transactions ; or

(h) Buyer will not be obligated to close the transaction if year-to-date revenues in 2014 are less than year-to-date revenues in 2013 as of the end of the last complete month prior to closing (according to accounting practices consistent with prior practices and consistent across both years at the Company Group). Seller will not discount pricing on any product in any region below July 2014's pricing without the approval of Buyer. Seller will provide Buyer with monthly reports and trends in average selling price across all product lines and all regions to confirm compliance with this term .

10.2 Termination Fee .

(a) In the event that Sellers (i) breach any provision of Section 6.2 herein and (ii) enter into any agreements or other instruments regarding an Alternative Transaction within six (6) months following the termination of the Agreement , Sellers shall pay to Buyer a fee (the " Termination Fee "), separate and distinct from any other rights of Buyer contemplated in the Agreement , which shall be equal to the difference between the Purchase Price herein and the price paid to Sellers and/or their Affiliates (exclusive of any earn-out consideration) pursuant to such agreements or other instruments regarding an Alternative Transaction .

(b) The Termination Fee shall be payable in immediately available funds by wire transfer no later than three (3) Business Days after the closing (s) of such agreements or other instruments. Buyer 's right to the Termination Fee shall be Buyer 's sole and exclusive remedy for any breach of Section 6.2 .

10.3 Effect on Obligations . In the event of the termination of this Agreement pursuant to Section 10.1 , no Party will have any liability under this Agreement to any other Party, except: (a) that nothing herein shall relieve any Party from any liability for any breach of any of the representations, warranties, covenants and agreements set forth in this Agreement; (b) the provisions of Article IX , Article XI , and Article XII shall survive such termination; and (c) Buyer, on the one hand, and Sellers and the Company Group, on the other hand, shall be required to continue to comply with the obligations set forth in the NDA pursuant to Section 12.16 .

ARTICLE XI
DISPUTE RESOLUTION

All disputes arising under this Agreement or any other document referenced in this Agreement, except as provided in Section 2.3 , Section 7.4 and Section 7.5 , shall be settled in accordance with this Article XI ; provided , however , that nothing in this Article XI shall preclude any Party from seeking injunctive relief in a court of competent jurisdiction in accordance with Section 12.8 hereof.

11.1 Arbitration . The Parties will make a good faith effort to resolve any dispute, controversy or Claim arising out of or relating to this Agreement amongst themselves for a period of thirty (30) days. If the Parties are unable to reach a mutually acceptable resolution of such dispute, controversy or Claim within thirty (30) days, the matter shall be submitted to and settled by arbitration in accordance with the Commercial Arbitration Rules (the " Rules ") of the American Arbitration Association (" AAA "). If AAA is unable or unwilling to arbitrate the matter, the matter shall be settled by arbitration conducted in accordance with the Center for Public Resources Rules for Non-administered Arbitration of Business Disputes before a neutral advisor selected by the Center for Public Resources from its National CPR Panel. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sec.Sec. 1-16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be Miami, Florida.

11.2 Good Faith . The Parties covenant and agree that they will participate in any such arbitration in good faith.

11.3 Procedure . In connection with any arbitration proceeding, the arbitrator shall have the power to order the production of documents by each party thereto and any third-party witnesses. In addition, each party may take up to three depositions as of right, and the arbitrator may in its discretion allow additional depositions upon good cause shown by the moving party. However, the arbitrator shall not have the power to order the answering of interrogatories or the response to requests for admission. In connection with any arbitration, each party shall provide to the other, no later than seven (7) Business Days before the date of the arbitration, the identity of all persons that may testify at the arbitration and a copy of all documents that may be introduced at the arbitration or considered or used by a party's witness or expert. The arbitrator's decision and award shall be made and delivered within forty-five (45) days of the selection of the arbitrator. The arbitrator's decision shall set forth a reasoned basis for any award of damages or finding of liability. The arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator shall have the right to require one party to such arbitration to bear all or a portion of the expenses of the other party(ies) to the arbitration. For the avoidance of doubt, any award, including any award of expenses, shall be subject to the limitations set forth herein, including in Section 8.3 and Section 8.5 .

11.4 Consent to Jurisdiction . Each of the Parties (i) hereby irrevocably submits to the jurisdiction of the state courts in Delaware and any United States District Court of competent jurisdiction for the purpose of enforcing the award or decision in any such proceeding or in any action seeking injunctive relief or otherwise, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any Claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution (except as protected by applicable law), that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and hereby waives and agrees not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such court. Each of the Parties hereby consents to service of process by registered mail pursuant to the notice provisions in Section 12.2 . Each of the Parties agrees that its submission to jurisdiction and its consent to service of process by mail are made for the express benefit of the other Parties. Final judgment against any Party in any such action, suit or proceeding may be enforced in other jurisdictions by suit, action or proceeding on the judgment, or in any other manner provided by or pursuant to the laws of such other jurisdiction.

ARTICLE XII
MISCELLANEOUS

12.1 Costs . Regardless of whether the Transactions are consummated, except as otherwise provided in this Agreement, each Party shall be responsible for, and shall bear, its own costs and expenses (including any broker's or finder's fees) incurred in connection with this Agreement and the Transactions, provided any costs incurred by Sellers or the Company Group in connection with the Transaction shall be excluded from the calculation of any and all financial metrics or ratios set forth in this Agreement, such that the financial metrics or ratios shall be determined as if such costs and expenses had not been expended by Sellers or the Company Group.

12.2 Notices . Any notice or other communication required or which may be given hereunder shall be ineffective unless given in writing and shall be deemed duly given: (a) when delivered in person; (b) when transmitted via electronic mail if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid); (c) when transmitted via telecopy (or other facsimile device) to the number set out below if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid); (d) the day following the date (except if not a Business Day, then the next Business Day) on which the same has been delivered with charges prepaid to a reputable national overnight air courier service; or (e) the third (3 ^rd ) Business Day following the day on which the same is mailed by certified (with the sender's receipt postmarked by a postal employee), registered (in either case, with a copy by ordinary first class mail) or express mail, postage prepaid. All notices or other communications shall be given to the intended recipient as follows:

If to the Company Group prior to the Closing Date:

Company Group

c/o Interinbox S.A.

Rte. de Pre-bois, 29

1215 Geneva

Switzerland

With a copy (which shall not constitute notice or such other communication) to:

Patrick K. Perrin, Esq.

Berg Hill Greenleaf & Ruscitti LLP

1712 Pearl Street

Boulder, CO 80302

Telephone: 303-402-1600

Facsimile: 303-402-1601

If to Sellers and/or Sellers' Representative:

Sellers' Representative

c/o Interinbox S.A.

Rte. de Pre-bois, 29

1215 Geneva

Switzerland

With a copy (which shall not constitute notice or such other communication) to:

Patrick K. Perrin, Esq.

Berg Hill Greenleaf & Ruscitti LLP

1712 Pearl Street

Boulder, CO 80302

Telephone: 303-402-1600

Facsimile: 303-402-1601

If to Buyer, then to:

SMTP

________

With a copy (which shall not constitute notice or such other communication) to:

Reed Smith

The designation of the person to be so notified or the address of such person for the purposes of such notice may be changed from time to time by notice hereunder.

12.3 Entire Agreement . This Agreement, together with all Schedules (as amended) and Exhibits attached hereto collectively constitute the entire agreement among the Parties concerning the subject matter hereof and supersede any and all prior written agreements and any and all prior or contemporaneous oral agreements or understandings relating to the subject matter hereof. All negotiations among or between any of the Parties are superseded by the documents set forth in the first sentence of this Section 12.3 , and there are no representations, warranties, promises, understandings or agreements, oral or written, in relation to the subject matter hereof among or between any of the Parties other than those expressly set forth or expressly incorporated herein.

12.4 Waivers and Amendments . Except as otherwise provided herein, this Agreement may not be amended, modified, superseded, canceled, renewed or extended, nor may any term or condition hereof be waived, except by a written instrument or document, which states that it is amending, modifying, superseding, cancelling, renewing, extending, or waiving a term or condition of, this Agreement, as the case may be, signed by Buyer and Sellers' Representative or, in the case of a waiver, signed by the Party sought to be charged therewith. No waiver by any Party of the breach of any provision hereof shall be deemed to constitute a waiver of any continuing or subsequent breach of such provision or any other provision hereof. No failure or delay by any Party in exercising any right, power, privilege or remedy hereunder will operate as a waiver thereof. The rights and remedies expressly granted hereunder shall be cumulative with respect to, and shall not be deemed to exclude, any other rights and remedies to which any Party shall be entitled at Law or in equity.

12.5 Binding Effect; Assignment . Except as provided below, this Agreement and all of the terms and provisions hereof shall be binding upon, and shall inure to the benefit of and be enforceable by, the Parties and their respective successors, assigns, heirs, executors, administrators and personal representatives, except that no assignment of all or any part of this Agreement or any right or obligation hereunder may be assigned by any Party without the prior written consent of all other Parties (which consent may be withheld in the sole discretion of such other Parties), and any attempted assignment without such consent shall be void and of no force or effect. Notwithstanding the foregoing, Buyer may assign its rights and obligations hereunder to any Affiliate without the prior approval of Sellers' Representative acting on behalf of Sellers and, prior to the Closing, the Company Group, but any such assignment by Buyer shall not relieve Buyer from its obligations to the Company Group and Sellers hereunder.

12.6 No Rescission . No Party shall be entitled to rescind the Transactions by virtue of any failure of any Party's representations and warranties herein to have been true or any failure by any Party to perform its obligations hereunder.

12.7 Governing Law . This Agreement shall be construed in accordance with and governed by the internal Laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.

12.8 Specific Performance . Each of the Parties acknowledges and agrees that the other Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the Parties agrees that the other Parties will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions of this Agreement in any action instituted in any court having jurisdiction over the Parties and the matter, in addition to any other remedy to which they may be entitled, at Law or in equity. Each Party agrees to waive the defense that a remedy at law would be adequate in any action for specific performance under this Section 12.8 .

12.9 Reserved .

12.10 Waiver of Jury Trial . EACH OF THE PARTIES WAIVES ANY RIGHT HE, SHE OR IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT, OR ACTION OF ANY PARTY.

12.11 Construction . The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event of an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

12.12 Agreement Severable . This Agreement shall be deemed to be severable, so that if the application of any provision (or any portion thereof) hereof to any Person or circumstances shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, all remaining provisions hereof shall continue to remain valid and in full force and effect in accordance with their terms, so long as the economic and legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transactions are consummated as originally contemplated to the greatest extent possible.

12.13 Counterparts . This Agreement may be executed and delivered in any number of counterparts (and delivered by facsimile, electronic mail or other electronic exchange), each of which shall be deemed to be an original as against any Party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall be binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the Parties reflected on this Agreement as the signatories.

12.14 No Third Party Beneficiaries . Except as set forth in Sections 7.14 , this Agreement shall not confer any rights or remedies upon any Person other than the Parties, the Indemnitees and their respective heirs, representatives, successors and permitted assigns.

12.15 Public Announcements . None of Buyer, the Company Group, Sellers or Sellers' Representative (or any of their respective Affiliates) shall make any public announcement or communication or issue any circular in connection with the existence or the subject matter of this Agreement without the prior written approval of all the other Parties (such approval not to be unreasonably withheld, conditioned or delayed). The restriction in this Section 12.15 shall not apply to the extent that the public announcement, communication or circular is required by Law, by any stock exchange or any regulatory or supervisory body or authority of competent jurisdiction to which the Party is subject or submits, whether or not the requirement has the force of law. If this exception applies, the Party making the public announcement or communication or issuing the circular shall use its reasonable efforts to consult with the other Parties in advance as to its form, content and timing.

12.16 Confidentiality . That certain Mutual Non-Disclosure Agreement dated May 26, 2014, by and between the Sellers and Buyer (the " NDA ") is incorporated herein by reference and shall remain in full force and effect until the earlier of: (a) three years after the Closing; or (b) the date on which the NDA is terminated or expires in accordance with its terms; provided , however that a Party's obligations with respect to the non-use and non-disclosure of any trade secrets shall survive indefinitely. For the avoidance of doubt, the NDA as incorporated herein shall be deemed to apply to, and to protect the Confidential Information (as defined in the NDA) of the Buyer and its subsidiaries and each of the members of the Company Group and their respective subsidiaries

[SIGNATURES APPEAR ON FOLLOWING PAGE]

IN WITNESS WHEREOF and intending to be legally bound hereby, the Parties have executed this Share Purchase Agreement as of the date first set forth above.

BUYER:	SMTP, INC.
	By: Name: Jonathan M. Strimling Title: CEO

COMPANY GROUP:	INTERINBOX SA
	By: Name: Title:
	ERNEPH 2012B (GRAPHICMAIL SOUTH AFRICA) By: Name: Title: ERNEPH 2012A (ISMS SOUTH AFRICA) By: Name: Title: QUATTRO HOSTING LLC USA By: Name: Title:

SELLERS:

Paul Honig

Nick Eckert

Ernie Retief

PENTASOFT LTD

By:

Name:

Title:

Exhibit A

Sellers

Name	Address	Wire Instructions
Paul Honig
Nick Eckert
Ernie Retief
Pentasoft Ltd.

Schedule 3.2(a)(xii)

Employment Agreements

1. Nick Eckert

2. Ernie Retief

3. Guus Bierens

4. Arend Brink

5. Lukas Hofer

6. Charles Chadwick

7. Andre Strauss

Annex I

Company Group's Knowledge

1. Meinhardt Honig

2. Nick Eckert

3. Ernie Retief

4. Guus Bierens

5. Arend Brink

6. Lukas Hofer

7. Charles Chadwick

8. Andre Strauss


Delaware	001-36280	05-0502529
(State or other jurisdiction of Incorporation or Organization)	(Commission File Number)	(I.R.S. Employer Identification No.)


100 Innovative Way, Suite 3330, Nashua, NH		03062
(Address of principal executive offices)		(Zip Code)


SMTP, INC.

By:	/s/ Jonathan M. Strimling
	Jonathan M. Strimling,
	Chief Executive Officer