Exhibit 10.1 

Execution Version   

EXCHANGE AGREEMENT

This EXCHANGE AGREEMENT (this “ Agreement ”) is made as of November 10, 2017, by and among TheStreet, Inc., a Delaware corporation (the “ Company ”), TCV VI, L.P., a Delaware limited partnership (“ TCV VI ”), and TCV Member Fund, L.P., a Cayman Islands exempted limited partnership (“ TCV Member Fund ” and, together with TCV VI, the “ TCV Holders ”). The Company and the TCV Holders are referred to herein individually as a “ Party ” and collectively as the “ Parties .” Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Investor Rights Agreement, dated as of November 15, 2007, by and among the Company and the TCV Holders (the “ Investor Rights Agreement ”) and the Certificate of Designation, Preferences and Rights of the Series B Preferred Stock of the Company dated as of November 15, 2007 (the “ Certificate of Designation ”), as applicable.

RECITALS

WHEREAS , as of the date hereof, (i) TCV VI is the record holder of 5,455.95095 shares of Series B convertible preferred stock, par value $0.01 per share, of the Company (the “ Series B Preferred Stock ”) and (ii) TCV Member Fund is the record holder of 44.04905 shares of Series B Preferred Stock;

WHEREAS , the terms of the Series B Preferred Stock and the rights, preferences and privileges attached thereto are set forth in the Certificate of Designation;

WHEREAS , the Company and the TCV Holders desire to exchange all of the shares of Series B Preferred Stock held by the TCV Holders for an aggregate of (i) 6,000,000 shares of common stock, par value $0.01 per share, of the Company (the “ Common Stock ”) newly issued by the Company (the “ Stock Consideration ”) and (ii) an amount in cash equal to $20,000,000 (the “ Cash Consideration ”), and agree to certain other matters as set forth herein;

WHEREAS , the board of directors of the Company (the “ Board ”), having determined that this Agreement and the transactions contemplated hereby are being entered into by the Parties on arm’s-length terms and are advisable, fair to and in the best interests of the Company, has, at a duly held meeting of the board, authorized and approved this Agreement and the transactions contemplated hereby;

WHEREAS , concurrently with the consummation of the transactions contemplated hereby, the Company proposes to issue and sell capital stock of the Company to investors (the “ Investors ”) for cash in a private placement transaction (the “ Concurrent Private Placement ”) pursuant to a securities purchase agreement (the “ Private Placement Agreement ”); and

WHEREAS , such Concurrent Private Placement shall occur concurrently with, and be conditioned on, the consummation of the transactions contemplated hereby.

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

Article I
TRANSACTIONS

1.1          Exchange .

(a)         Subject to and upon the terms and conditions of this Agreement, on the Closing Date, in exchange for the consideration set forth in Section 1.2 , and upon delivery by the TCV Holders of the certificate or certificates representing each such TCV Holder’s shares of Series B Preferred Stock, duly endorsed for transfer to the Company or accompanied by a duly executed stock power in favor of the Company, the Company shall (i) issue and cause to be delivered book-entry shares representing the Stock Consideration to the TCV Holders and (ii) pay to the TCV Holders the Cash Consideration. 

(b)       Upon completion of the transactions contemplated hereby, all of the Series B Preferred Stock shall be cancelled and shall cease to exist and no longer be outstanding and the Company shall promptly file a Certificate of Elimination of such Series B Preferred Stock pursuant to Section 151 of the General Corporation Law of the State of Delaware.

1.2          Consideration . Subject to and upon the terms and conditions of this Agreement, on the Closing Date, in consideration for the exchange of all of the Series B Preferred Stock held by the TCV Holders, the aggregate consideration payable to the TCV Holders in respect of such exchange shall consist of (i) the Cash Consideration plus (ii) the Stock Consideration. The Cash Consideration shall be paid, on the Closing Date, by wire transfer of immediately available funds to one or more accounts designated by the TCV Holders in writing. The Stock Consideration shall be satisfied by the issuance, on the Closing Date, to the TCV Holders of that number of shares of Common Stock comprising such Stock Consideration appearing opposite each TCV Holder’s name on Exhibit A attached hereto and the delivery of book-entry shares representing such shares of Common Stock to the TCV Holders.

1.3          The Closing .

(a)          The consummation of the transactions contemplated by this Agreement, and the performance by the Parties of their respective related agreements, covenants and obligations hereunder (collectively, the “ Closing ”) will take place at the offices of Orrick, Herrington & Sutcliffe LLP at 405 Howard Street, San Francisco, California, at 10:00 a.m., New York time, on the date hereof (or in such other manner or on such other date or time as the Parties mutually agree) after notification of satisfaction (or waiver) of the conditions to the Closing set forth in clauses (b) and (c) below.

(b)          The obligations of the Company to the TCV Holders hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the TCV Holders with prior written notice thereof:

(i)       Each TCV Holder shall have executed and delivered this Agreement to the Company; and

(ii)      Each TCV Holder shall have delivered the certificate or certificates representing such TCV Holder’s shares of Series B Preferred Stock, duly endorsed for transfer to the Company or accompanied by a duly executed stock power in favor of the Company.

(c)          The obligations of each TCV Holder to the Company hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the TCV Holders’ sole benefit and may be waived by the TCV Holders at any time in their sole discretion by providing the Company with prior written notice thereof:

(i)       The Company shall have executed and delivered this Agreement to the TCV Holders;

(ii)      The Company shall have issued and caused to be delivered book-entry shares representing the Stock Consideration to the TCV Holders;

(iii)     The TCV Holders shall have received from the Company the Cash Consideration; and

(iv)     The Company shall have consummated the Concurrent Private Placement on the terms set forth in the Private Placement Investment Documents.

(d)       Except as otherwise provided in this Agreement, all actions to be taken and all documents to be executed and delivered at the Closing shall be deemed to have been taken, delivered and executed simultaneously, and no action shall be deemed taken nor any documents deemed executed or delivered until all have been taken, delivered and executed.

Article II
REPRESENTATIONS AND WARRANTIES OF the TCV Holders

As an inducement to the Company to enter into and perform this Agreement, each of the TCV Holders, severally and not jointly, hereby makes the following representations and warranties to the Company as of the date hereof:

2.1          Organization and Power . Such TCV Holder is a limited partnership duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation. Such TCV Holder has all requisite limited partnership power and authority to execute and deliver this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement to which it is a party, to perform its obligations hereunder and to consummate the transactions contemplated hereby

2.2          Authorization, etc . All limited partnership action on the part of such TCV Holder necessary for the authorization, execution, delivery and performance by such TCV Holder of this Agreement, and the consummation of the transactions contemplated hereby, has been taken. This Agreement has been duly and validly executed by such TCV Holder, and, upon delivery hereof by such TCV Holder, will constitute a valid and binding obligation of such TCV Holder enforceable against such TCV Holder in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

2.3          Non-Contravention; Approvals; Actions .

(a)       The authorization, execution, delivery and performance by such TCV Holder of this Agreement, and the consummation by such TCV Holder of the transactions contemplated hereby, do not and will not: (i) violate or result in the breach of any provision of the certificate of limited partnership and limited partnership agreement of such TCV Holder; or (ii) with such exceptions that, individually or in the aggregate, are not reasonably likely to have a material and adverse effect on its ability to perform its obligations under this Agreement, whether after the giving of notice or the lapse of time or both: (x) violate any provision of, constitute a breach of, or default under, or result in or permit the cancellation, termination or acceleration of any material contract to which such TCV Holder is a party; or (y) violate any provision of, constitute a breach of, or default under, any applicable law.

(b)       No consent, waiver, approval, authorization, order or permit of, or declaration, filing or registration with, or notification to, any governmental authority or other third party is required to be made or obtained by such TCV Holder in connection with the authorization, execution, delivery and performance by such TCV Holder of this Agreement, and the consummation by the Company of the transactions contemplated hereby, except (i) applicable filing requirements under federal or state securities or “blue sky” Laws, and (ii) where the failure to obtain such consent, approval, authorization or action, or to make such filing or notification would not, when taken together with all other such failures by such TCV Holder, reasonably be expected to have a material and adverse effect on the ability of such TCV Holder to perform its obligations under this Agreement or consummate the transactions contemplated by this Agreement.

(c)       There are no claims, actions, suits, proceedings or investigation pending or, to the knowledge of such TCV Holder, threatened against such TCV Holder, any of the assets or properties of such TCV Holder, or any of the directors and officers of such TCV Holder in their capacity as directors or officers that would reasonably be expected to have a material and adverse effect on the ability of such TCV Holder to perform its obligations under this Agreement or consummate the transactions contemplated by this Agreement.

2.4          No Encumbrances . Except pursuant to the Investor Rights Agreement and the Securities Purchase Agreement, dated as of November 15, 2007, by and among the Company and the TCV Holders (the “ Securities Purchase Agreement ”), such TCV Holder owns and holds, beneficially and of record, the entire right, title, and interest in and to such TCV Holder’s shares of Series B Preferred Stock free and clear of all rights and Encumbrances (as defined below), and such TCV Holder has full power and authority to transfer and dispose of such shares of Series B Preferred Stock free and clear of any right or Encumbrance. Other than the transactions contemplated by this Agreement, there is no outstanding agreement or other right of any person to acquire all or any of the Series B Preferred Stock from such TCV Holders. “ Encumbrances ” shall mean any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected, voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the foregoing in the future.

2.5          Investment Representations .

(a)       Such TCV Holder understands and hereby acknowledges that it is aware that the Stock Consideration has not been registered under the Securities Act of 1933, as amended (the “ Securities Act ”), or any similar state securities laws.

(b)       Such TCV Holder is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act. Such TCV Holder is acquiring the Stock Consideration for its own account and not with a view to, or for sale in connection with, any distribution thereof in violation of federal or state securities laws. By reason of its business or financial experience, such TCV Holder has the capacity to protect its own interest in connection with the transactions contemplated hereunder.

(c)       Such TCV Holder acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Stock Consideration, (ii) it has had access to the Company’s filings with the U.S. Securities and Exchange Commission (the “ SEC ”) and to such financial and other information as it deems necessary to make its decision to acquire the Converted Shares and the Stock Consideration, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to acquire the Converted Shares and the Stock Consideration. Such TCV Holder further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the acquisition of the Stock Consideration.

(d)       The foregoing, however, does not limit or modify the representations and warranties of the Company in Article III of this Agreement or the right of such TCV Holder to rely thereon. Such TCV Holder further understands and acknowledges that the representations and warranties contained in this Article II may be relied upon by the Company as the basis, in part, for the exemption of the Stock Consideration from the registration requirements under all such federal and state laws. Except for the representations and warranties contained in Article III of this Agreement, such TCV Holder acknowledges that neither the Company nor any person on behalf of the Company makes, and such TCV Holder has not relied upon, any other express or implied representation or warranty with respect to the Company or with respect to any other information provided to such TCV Holder in connection with the transactions contemplated by this Agreement.

Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

As an inducement to the TCV Holders to enter into and perform this Agreement, the Company hereby makes the following representations and warranties to the TCV Holders that, except as set forth in the SEC Filings where specifically referenced or on the corresponding sections of the schedules delivered herewith (collectively, the “ Disclosure Schedules ”):

3.1          Organization and Power . Each of the Company and its Subsidiaries is duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (to the extent the concept of good standing is recognized in the relevant jurisdiction) and has all requisite power and authority to carry on its business as now conducted and to own or lease its properties. The Company has all requisite corporate power and authority to execute and deliver this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement to which it is a party, to perform its obligations hereunder and to consummate the transactions contemplated hereby. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation or other entity and is in good standing in each jurisdiction (to the extent the concept of good standing is recognized in the relevant jurisdiction) in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to be in good standing or so qualify has not had and could not reasonably be expected to have a Material Adverse Effect. The Company’s Subsidiaries are listed on Schedule 3.1 hereto. 

3.2          Authorization, etc . All corporate action on the part of the Company necessary for the authorization, execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated hereby, has been taken. This Agreement has been duly and validly executed by the Company, and, upon delivery hereof by the Company, will constitute a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Assuming the accuracy of the representations and warranties of the TCV Holders set forth in Section 2.5 , the offer and sale of the Stock Consideration pursuant to this Agreement will be exempt from the registration requirements of the Securities Act.

3.3          Non-Contravention; Approvals; Litigation; Compliance .

(a)       The authorization, execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of the transactions contemplated hereby, do not and will not: (i) violate or result in the breach of any provision of the certificate of incorporation and bylaws of the Company; (ii) require any approval by the stockholders of the Company, including any approval by the shareholders of the Company under Nasdaq Rule 5635; or (iii) with such exceptions that, individually or in the aggregate, are not reasonably likely to have a material and adverse effect on its ability to perform its obligations under this Agreement, whether after the giving of notice or the lapse of time or both: (x) violate any provision of, constitute a breach of, or default under, or result in or permit the cancellation, termination or acceleration of any material judgment, order, writ, decree or contract required to be filed as an exhibit to one of the Company’s filings with the SEC; or (y) violate any provision of, constitute a breach of, or default under, any applicable law.

(b)       No consent, waiver, approval, authorization, order or permit of, or declaration, filing or registration with, or notification to, any governmental authority or other third party is required to be made or obtained by the Company in connection with the authorization, execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of the transactions contemplated hereby, except (i) applicable filing requirements under federal or state securities or “blue sky” Laws, and (ii) where the failure to obtain such consent, approval, authorization or action, or to make such filing or notification would not, when taken together with all other such failures by the Company, reasonably be expected to have a material and adverse effect on the ability of the Company to perform its obligations under this Agreement or consummate the transactions contemplated by this Agreement.

(c)       There are no claims, actions, suits, proceedings or investigation pending or, to the knowledge of the Company, threatened against the Company, any of the assets or properties of the Company, or any of the directors and officers of the Company in their capacity as directors or officers that would reasonably be expected to have a material and adverse effect on the ability of the Company to perform its obligations under this Agreement or consummate the transactions contemplated by this Agreement.

(d)       The Company has not, in connection with the transactions contemplated by this Agreement, engaged in: (a) any form of general solicitation or general advertising (as those terms are used within the meaning of Rule 502(c) promulgated under the Securities Act); (b) any action involving a “public offering” within the meaning of Section 4(a)(2) of the Securities Act; or (c) any action that would require the registration under the Securities Act of the offering and sale of the Stock Consideration pursuant to this Agreement. As used herein, the terms “offer” and “sale” have the meanings specified in Section 2(a)(3) of the Securities Act.

(e)       The consummation of the transactions contemplated hereby complies with Section 160 of the General Corporation Law of the State of Delaware, the capital of the Company is not currently impaired, and the consummation of the transactions contemplated by this Agreement will not cause any impairment of the capital of the Company. 

3.4          Authorized Stock . All of the shares of the Stock Consideration have been duly authorized and, when delivered to the TCV Holders upon the consummation of the transactions contemplated hereby, will be validly issued and fully paid and nonassessable and will not be subject to any preemptive right or any restrictions on transfer under applicable law or any contract to which the Company is a party, other than those under applicable state and federal securities and antitakeover laws and the Investor Rights Agreement. When issued in accordance with the terms hereof, the Stock Consideration will be free and clear of all Encumbrances imposed by or through the Company, except for restrictions imposed by federal or state securities or “blue sky” laws and except for those imposed pursuant to this Agreement or the Investor Rights Agreement.

3.5          Capitalization .

(a)       The authorized capital stock of the Company (immediately prior to the Closing) consists of 100,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per share (“ Preferred Stock ”).

(b)       As of the date hereof, the issued and outstanding capital stock of the Company consists of 43,411,044 shares of Common Stock issued, of which 35,877,562 shares are outstanding and 7,533,482 shares are held as treasury stock, and 5,500 shares of Series B Preferred Stock. There are no other outstanding shares of Preferred Stock. In addition, options to purchase an aggregate of 5,383,261 shares of Common Stock have been granted and are unexercised under the Stock Plans, and unvested restricted stock units (or RSUs) for an aggregate of 763,067 shares have been granted under the Stock Plans.

(c)       Except as provided in this Agreement and the Private Placement Agreement: (i) no subscription, warrant, option, convertible security or other right issued by the Company to purchase or acquire any shares of capital stock of the Company is authorized or outstanding; (ii) except as set forth on Schedule 3.5(c)(ii) , there is not any commitment of the Company to issue any subscription, warrant, option, convertible security or other such right or to issue or distribute to holders of any shares of its capital stock any evidences of indebtedness or assets of the Company; (iii) the Company has no obligation to purchase, redeem or otherwise acquire any shares of its capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof; and (iv) there are no agreements between the Company and any holder of its capital stock relating to the acquisition, disposition or voting of the capital stock of the Company. No person or entity is entitled to any preemptive right granted by the Company with respect to the issuance of any capital stock of the Company. Except as provided in the Investor Rights Agreement and the registration rights agreement entered into in connection with the consummation of the transactions contemplated by the Private Placement Agreement (the “ New Registration Rights Agreement ”), no person or entity has been granted rights by the Company with respect to the registration of any capital stock of the Company under the Securities Act.

3.6          Private Placement Agreement . True, correct and complete copies of the Private Placement Agreement and the New Registration Rights Agreement, each dated as of the date hereof, and any other agreements or arrangements entered into between or among the Company and the Investors in connection with or related to the Concurrent Private Placement (all such agreements, the “ Private Placement Investment Documents ”), have been delivered to the TCV Holders.

3.7          Delivery of SEC Filings; Business . The Company has made available to the TCV Holders through the SEC’s EDGAR system, true and complete copies of the Company’s reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), during the two (2) years prior to the date hereof (collectively with all amendments, exhibits, financial statements, notes and schedules thereto, the “ SEC Filings ”). The SEC Filings are the only filings required of the Company pursuant to the Exchange Act for such period. The Company and its Subsidiaries are engaged in all material respects only in the business described in the SEC Filings.

3.8          No Material Adverse Change . Since December 31, 2016, except for the transactions contemplated hereby and by the Private Placement Investment Documents, or as identified and described on Schedule 3.8 , there has not been:

(i)       any change in the consolidated assets, liabilities, financial condition or operating results of the Company from that reflected in the financial statements included in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, except for changes in the ordinary course of business which have not had and would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;

(ii)      any declaration or payment of any dividend, or any authorization or payment of any distribution, on any of the capital stock of the Company, or any redemption or repurchase of any securities of the Company;

(iii)     any material damage, destruction or loss, whether or not covered by insurance to any assets or properties of the Company or its Subsidiaries;

(iv)     any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed to it;

(v)      any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a Subsidiary, except in the ordinary course of business and which is not material to the assets, properties, financial condition, operating results or business of the Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is proposed to be conducted);

(vi)     any change or amendment to the Company’s Certificate of Incorporation or Bylaws, or material change to any Material Contract or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject;

(vii)    any material labor difficulties or labor union organizing activities with respect to employees of the Company or any Subsidiary;

(viii)   any material transaction entered into by the Company or a Subsidiary other than in the ordinary course of business;

(ix)      the loss of the services of any key employee, or material change in the composition or duties of the senior management of the Company or any Subsidiary;

(x)       the loss, to the Company’s Knowledge, threatened loss of any customer which has had or could reasonably be expected to have a Material Adverse Effect; or

(xi)     any other event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect.

3.9          SEC Filings; Financial Information; S-3 Eligibility.

(a)       At the time of filing thereof, the SEC Filings complied as to form in all material respects with the requirements of the Exchange Act and, as of their respective dates, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. To the Company’s Knowledge, the written information furnished by or on behalf of the Company to any of the TCV Holders prior to the date hereof in connection with the transactions contemplated hereby which is not included in the SEC Filings (including, without limitation, information referred to in Section 2.5(c) of this Agreement or in the Disclosure Schedules to this Agreement), taken as a whole, does not contain, as of the date furnished, any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made; provided that with respect to projections, forecasts, estimates, budgets and other forward-looking statements and information that were prepared by the Company, the Company only represents that such projections, forecasts, estimates, budgets and other forward-looking information were prepared in good faith upon assumptions believed by the Company to be reasonable at the time made. 

(b)       The financial statements included in each SEC Filing comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or to the extent corrected by a subsequent restatement) and present fairly, in all material respects, the consolidated financial position of the Company as of the dates shown and its consolidated results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis (“ GAAP ”) (except as may be disclosed therein or in the notes thereto, and, in the case of quarterly financial statements, except for normal year-end audit adjustments and as otherwise as permitted by Form 10-Q under the Exchange Act).

(c)       The Company satisfies the “registrant requirements” for use of Form S-3 set forth in General Instruction I.A to Form S-3 promulgated by the SEC.

3.10        Tax Matters . The Company and each of its Subsidiaries has filed all tax returns required to be filed by the Company or such Subsidiary with all appropriate governmental agencies within the applicable periods for such filings (with due regard to any extension) and has paid all taxes required to be paid, except for any such failures to file or pay that would not individually or in the aggregate have a Material Adverse Effect. No material deficiencies for any tax are currently assessed against the Company or any of its Subsidiaries, and no tax returns of the Company or any of its Subsidiaries have been audited during the last three years, and, there is no such audit pending or, to the knowledge of the Company, contemplated. There is no outstanding claim by an authority in a jurisdiction where the Company does not file tax returns that it is or may be subject to the imposition of any material tax by that jurisdiction.

3.11        Title to Properties . The Company and its Subsidiaries do not own any real property; except as disclosed in the SEC Filings, the Company and each Subsidiary has good and marketable title to all personal property owned by it, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or currently planned to be made thereof by them; and except as disclosed in the SEC Filings, the Company and each Subsidiary holds any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or currently planned to be made thereof by them.

3.12        Certificates, Authorities and Permits . The Company and each Subsidiary possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it, except where such failure has not had and would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or such Subsidiary, would reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.

3.13        Labor Matters . Except as described on Schedule 3.13 , the Company has described in, or filed as an exhibit to, the SEC Filings filed prior to the date of this Agreement all of the following types of documents, agreements, plans or arrangements that are required by federal securities laws to be described in, or filed as an exhibit to, the SEC Filings: employment agreements, consulting agreements, deferred compensation, pension or retirement agreements or arrangements (including all “employee pension benefit plans” as defined in Section 3(2) of ERISA, bonus, incentive or profit-sharing plans or arrangements, or labor or collective bargaining agreements in effect by the Company and its Subsidiaries) (the “ ERISA Documents ”). Except for any compliance failures that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (a) the Company and its Subsidiaries are in compliance in all respects with all applicable laws and regulations relating to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours, and with the terms of the ERISA Documents; and (b) each such ERISA Document is in compliance in all respects with all applicable requirements of ERISA. To the Company’s Knowledge, none of the Company’s or its Subsidiaries’ employees are obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or her employment obligations to the Company or its Subsidiaries or that would conflict with the Company’s and its Subsidiaries’ business as now conducted or proposed to be conducted, except for such contracts and other agreements, judgments, decrees and orders that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 

3.14        Intellectual Property . All Intellectual Property Rights purported to be owned by the Company or any of its Subsidiaries that were developed, worked on or otherwise held by any employee, officer, consultant or otherwise are owned free and clear by the Company or one of its Subsidiaries (as the case may be) by operation of law or have been validly assigned to the Company one of its Subsidiaries (as the case may be) other than those Intellectual Property Rights where the failure to own or assign such rights would not, individually or in its aggregate be reasonably likely to have a Material Adverse Effect. The Intellectual Property Rights are sufficient in all material respects to carry on the business of the Company and each of its Subsidiaries as presently conducted and as proposed to be conducted. To the Knowledge of the Company, with such exceptions as are not, individually or in the aggregate reasonably likely to have a Material Adverse Effect, the Intellectual Property Rights purported to be owned by the Company or any of its Subsidiaries do not infringe the intellectual property rights of any third party. To the Knowledge of the Company, the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted does not infringe or otherwise impair or conflict with (collectively, “ Infringe ”) any Intellectual Property Rights of any third party or any confidentiality obligation owed to a third party, and, to the Company’s Knowledge, the Intellectual Property Rights and Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted are not being Infringed by any third party. There is no litigation or order pending or outstanding or, to the Company’s Knowledge, threatened, that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of any Intellectual Property Rights or Confidential Information of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ use of any Intellectual Property Rights or Confidential Information owned by a third party, and, to the Company’s Knowledge, there is no valid basis for the same.

3.15        Litigation . With such exceptions that, individually or in the aggregate, are not reasonably expected to have a Material Adverse Effect, there is no litigation or governmental proceeding pending or, to the Company’s Knowledge, threatened, against the Company or any of its Subsidiaries or affecting any of the properties or assets of the Company or any of its Subsidiaries. Neither the Company nor any Subsidiary is in default with respect to any order, writ, injunction, decree, ruling or decision of any court, commission, board or other government agency that is expressly applicable to the Company or any Subsidiary or any of their assets or property.

3.16        Insurance Coverage . The Company and each Subsidiary maintains insurance coverage that is customary for comparably situated companies for the business being conducted and properties owned or leased by the Company and each Subsidiary. All such insurance is fully in force, except where the failure to be in full force has not had and would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.

3.17        Compliance with Nasdaq Continued Listing Requirements . Except as described in the SEC Filings, the Company is in compliance with applicable Nasdaq continued listing requirements. Except as described in the SEC Filings, there are no proceedings pending or, to the Company’s Knowledge, threatened against the Company relating to the continued listing of the Common Stock on Nasdaq and the Company has not received any notice of, nor to the Company’s Knowledge is there any basis for, the delisting of the Common Stock from Nasdaq. The issuance by the Company of the Stock Consideration shall not have the effect of delisting or suspending the Common Stock from Nasdaq.

3.18        Brokers and Finders . No Person will have, as a result of the transactions contemplated hereby or by the Private Placement Investment Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or an TCV Holder for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company, other than as described in Schedule 3.18 . The Company shall pay, and hold each TCV Holder harmless against, any liability, loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim.

3.19        Transactions with Affiliates . Except as disclosed in the SEC Filings or as disclosed on Schedule 3.19 , none of the officers or directors of the Company and, to the Company’s Knowledge, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than as holders of stock options and/or warrants, and for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the Company’s Knowledge, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.

3.20        Internal Controls . The Company is in material compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof and that are currently applicable to the Company. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act). Such disclosure controls and procedures are designed to provide reasonable assurance that material information relating to the Company, including its Subsidiaries, that is required to be disclosed by the Company in the reports that it furnishes or files under the Exchange Act is reported within the time periods specified in the rules and forms of the SEC and that such material information is communicated to the Company’s management to allow timely decisions regarding required disclosure. To the Company’s Knowledge, there is no (i) significant deficiency in the design or operation of internal controls which could adversely affect the Company’s or any of its Subsidiary’s ability to record, process, summarize and report financial data or any material weaknesses in internal controls; or (ii) fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s or any of its Subsidiary’s internal controls.

3.21        Off Balance Sheet Arrangements . There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.

3.22        Investment Company . Neither the Company nor any of its Subsidiaries is, and immediately after giving effect to the sale of the Shares in accordance with this Agreement and the application of the proceeds thereof will not be required to be registered as, an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

3.23        Sufficient Funds . Assuming the concurrent consummation of the Concurrent Private Placement, the Company has sufficient cash or other sources of immediately available funds to pay the Cash Consideration at the Closing in accordance with this Agreement.

3.24        Solvency . At and immediately after the Closing, each of the Company and its Subsidiaries (a) will be solvent (in that both the fair value of its assets will not be less than the sum of its debts and that the present fair saleable value of its assets will not be less than the amount required to pay its probable liability on its recourse debts as they mature or become due), (b) will have adequate capital and liquidity with which to engage in its business and (c) will not have incurred and does not plan to incur debts beyond its ability to pay as they mature or become due.

3.25        Delaware Section 203 . The Board at a duly held meeting of the board prior to execution and delivery of this Agreement by the Company approved the issuance of the Stock Consideration to the TCV Holders and the other transactions contemplated by this Agreement for purposes of Section 203 of the General Corporation Law of the State of Delaware.

3.26        Conduct of Business . Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under its Certificate of Incorporation, any certificate of designations, preferences or rights of any other outstanding series of Preferred Stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation or certificate of incorporation or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 

3.27        Compliance with Anti-Money Laundering Laws . The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited to, those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the USA Patriot Act of 2001 and the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

3.28        No Conflicts with Sanctions Laws. Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee, agent, Affiliate or other person associated with or acting on behalf of the Company or any of its Subsidiaries or Affiliates is, or is directly or indirectly owned or controlled by, a Person that is currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”) or the U.S. Departments of State or Commerce and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“ UNSC ”), the European Union, Her Majesty’s Treasury (“ HMT ”) or any other relevant sanctions authority (collectively, “ Sanctions ”), nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject or target of a comprehensive embargo or Sanctions prohibiting trade with the country or territory, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “ Sanctioned Country ”); no action of the Company or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement and the Private Placement Investment Documents or the consummation of any other transaction contemplated hereby or thereby or the fulfillment of the terms hereof or thereof, will result in the proceeds of the transactions contemplated hereby or thereby being used, or loaned, contributed or otherwise made available, directly or indirectly, to any Subsidiary , joint venture partner or other person or entity, for the purpose of (i) unlawfully funding or facilitating any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) unlawfully funding or facilitating any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, or since the Company’s or such subsidiary’s formation, whichever is more recent, the Company and its Subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

3.29        Anti-Bribery . Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee, agent, Affiliate or other person associated with or acting on behalf of the Company, or any of its Subsidiaries or Affiliates, has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, to any employee or agent of a private entity with which the Company does or seeks to do business (a “ Private Sector Counterparty ”) or to foreign or domestic political parties or campaigns from corporate funds, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “ FCPA ”), the U.K Bribery Act 2010, or any other similar law of any other jurisdiction in which the Company operates its business, including, in each case, the rules and regulations thereunder, (iv) taken, is currently taking or will take any action in furtherance of an offer, payment, gift or anything else of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage or (v) otherwise made any bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment; the Company and each of its respective Subsidiaries has instituted and has maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with the laws referred to in (iii) above and with this representation and warranty; and none of the Company, nor any of its Subsidiaries or Affiliates will directly or indirectly use the proceeds of the transactions contemplated hereby or by the Private Placement Investment Documents or lend, contribute or otherwise make available such proceeds to any subsidiary, Affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate the laws and regulations referred to in (iii) above. 

3.30        Shell Company Status . The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).

3.31        No Disqualification Events . With respect to Stock Consideration to be issued and sold hereunder, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “ Issuer Covered Person ” and, together, “ Issuer Covered Persons ”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “ Disqualification Event ”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the TCV Holders a copy of any disclosures provided thereunder.

3.32        Manipulation of Price . The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result, or that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) other than the Persons set forth on Schedule 3.18 , sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares, or (iii) other than the Persons set forth on Schedule 3.18 , paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.

3.33        No Other Representations . Except for the representations and warranties contained in Article II of this Agreement, the Company acknowledges that neither TCV Holder nor any person on behalf of either TCV Holder makes, and the Company has not relied upon, any other express or implied representation or warranty with respect to either TCV Holder or with respect to any other information provided to the Company in connection with the transactions contemplated by this Agreement.

Article IV
ADDITIONAL AGREEMENTS

4.1          Investor Rights Agreement . The Parties hereby acknowledge and agree that the terms and provisions of the Investor Rights Agreement shall continue in full force and effect, including all such terms and provisions that are applicable to the Registrable Securities (as defined in the Investor Rights Agreement), which the parties agree shall apply to and include the Stock Consideration in all respects and that the Stock Consideration shall be treated as Registrable Securities for all purposes under the Investor Rights Agreement; provided , however , that (a) no Demand Notice (as defined in the Investor Rights Agreement) will be made by the TCV Holders pursuant to Section 5 of the Investor Rights Agreement with respect to the Stock Consideration prior to the 90th day following the issuance of the Stock Consideration, (b) on the 90th day following the issuance of the Stock Consideration, the TCV Holders shall be deemed to have delivered, and the Company shall be deemed to have received, a Demand Notice in accordance with Section 5(a) of the Investor Rights Agreement with respect to a Demand Shelf Registration (as defined in the Investor Rights Agreement) covering the resale of all of the Stock Consideration as Registrable Securities, and, upon further notice from the TCV Holders to the Company, the TCV Holders may specify that the sale of all or a portion of the Stock Consideration constituting Registrable Securities is to be conducted as an underwritten offering off of such Demand Shelf Registration pursuant to Section 5(f) and the other terms of the Investor Rights Agreement, and (c) such deemed Demand Notice shall be treated as an additional Demand Notice under Section 5(a) of the Investor Rights Agreement made in accordance with and subject to the terms and conditions thereof (including Section 8 of the Investor Rights Agreement), and shall be in addition to, and shall not reduce, the one Demand Notice that the Holders owning a majority of the Registrable Securities are currently entitled to pursuant to Section 5(a) of the Investor Rights Agreement, including a Demand Notice specifying that the sale of Registrable Securities is to be conducted through an underwritten offering pursuant to Section 5(f) of the Investor Rights Agreement. Pursuant to Section 7 of the Investor Rights Agreement, the TCV Holders, holding a majority of the Registrable Securities, hereby consent to the grant of registration rights to the investors in the Concurrent Private Placement as contemplated by the New Registration Rights Agreement; provided that such registration rights are pari passu with or junior to the rights of the TCV Holders as holders of Registrable Securities pursuant to the Investor Rights Agreement; and provided further that the investors in the Concurrent Private Placement shall not have any “piggyback” or similar participation rights with respect to any Demand Shelf Registration, including any underwritten offering of Registrable Securities made pursuant to a Demand Shelf Registration.

4.2          Securities Purchase Agreement; Short Sales .

(a)       The Company and each of the TCV Holders agree that effective as of the consummation of the Closing, the Securities Purchase Agreement and any confidentiality or non-disclosure agreement between or among the Company and the TCV Holders shall terminate in its entirety, and the Company and the TCV Holders shall have no further rights or obligations thereunder.

(b)       Each TCV Holder agrees that for so long as such TCV Holder or any of its Restricted Affiliates (as defined below) owns any of the shares of Common Stock constituting the Stock Consideration, it will not, and it will not cause, suffer or permit any of its Restricted Affiliates to, enter into any Short Sales (as defined below). Notwithstanding the foregoing, the Company and the TCV Holders agree that nothing in this Section 4.2(b) shall restrict the ability of a TCV Holder or any of its Restricted Affiliates to outright sell, distribute or transfer any of the shares of Common Stock constituting the Stock Consideration.

(c)       For purposes of Section 4.2 , “ Restricted Affiliate ” means: (i) any individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization or a government or agency or political subdivision thereof (each, a “ Person ”) who is directly or indirectly responsible for the formation, management, operations, oversight or administration of the TCV Holders (including, without limitation, any principals, partners or employees of any such Person); (ii) any investment fund directly or indirectly formed or controlled by any one or more Persons referred to in the preceding clause (i); and (iii) any direct or indirect subsidiary (as defined in Rule 1-02(x) of Regulation S-X promulgated by the SEC, a “ Subsidiary ”) of any Person referred to in the preceding clauses (i) or (ii) in which any one or more such Persons have the right to elect (directly or indirectly) a majority of the board of directors (or a comparable governing body with a different name) of such Subsidiary or own a majority of the voting securities entitled to elect the board of directors (or comparable governing body with a different name) of such Subsidiary. For purposes of Section 4.2 , “ Short Sale ” means: (i) a sale of Common Stock that is marked as a short sale; (ii) any entering into or establishment of any arrangement constituting a “put equivalent position,” as defined by Rule 16a-1(h) promulgated under the Securities Exchange Act of 1934, as amended; (iii) entering into any swap, option or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of Common Stock, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise; or (iv) the announcement of any intent to do any of the foregoing.

4.3          Tax Treatment . The exchange of the Series B Preferred Stock for the Stock Consideration and the Cash Consideration pursuant to this Agreement is intended to qualify as a recapitalization within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the “ Code ”), with the Stock Consideration and the Cash Consideration having been received pursuant to Section 354(a)(1) of the Code and Section 356(a)(1)(B) of the Code, respectively, and this Agreement shall constitute a “plan of reorganization” described in Treasury Regulations Section 1.368-1(c). The parties agree to prepare and file their U.S. federal, state and local income tax returns in a manner consistent with the foregoing sentences of this Section 4.4 and shall not take any tax position inconsistent therewith for tax purposes, including income tax purposes.

4.4          Form D, Blue Sky and Nasdaq . The Company agrees to file a Form D with respect to the Stock Consideration as required under Regulation D and to provide a copy thereof to each TCV Holder promptly after such filing. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Stock Consideration for sale to the TCV Holders at the Closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the TCV Holders. The Company shall make all filings and reports relating to the offer and sale of the Stock Consideration required under applicable securities or “blue sky” laws of the states of the United States. The Company shall file with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Stock Consideration on the Nasdaq Capital Market, a copy of which shall be provided to the TCV Holders. 

4.5          Further Assurance . From and after the date hereof, the TCV Holders and the Company shall execute and deliver such further instruments of conveyance, transfer and assignment and shall take such other actions as a Party may reasonably request of another Party in order to effectuate the purposes of this Agreement and carry out the terms hereof.

Article V
Definitions

In addition to terms defined elsewhere in this Agreement, the following terms when used in this Agreement will have the respective meanings set forth below:

“ Affiliate ” means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is controlled by, or is under common Control with, such Person.

“ Company’s Knowledge ” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company, after due inquiry.

“ Confidential Information ” means trade secrets, confidential information and know-how (including but not limited to ideas, formulae, compositions, processes, procedures and techniques, research and development information, computer program code, performance specifications, support documentation, drawings, specifications, designs, business and marketing plans, and customer and supplier lists and related information).

“ Control ” (including the terms “controlling”, “controlled by” or “under common control with”) means the possession, direct or indirect, 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.

“ Intellectual Property Rights ” means all of the following: (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names, together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; and (v) proprietary computer software (including but not limited to data, data bases and documentation).

“ Material Adverse Effect ” means a material adverse effect on (i) the assets, properties, liabilities, operations, results of operations, condition (financial or otherwise), business, or prospects of the Company and its Significant Subsidiaries, individually or taken as a whole, (ii) the transactions contemplated hereby or the Private Placement Investment Documents or (iii) the ability or authority of the Company to perform its obligations under this Agreement or the Private Placement Investment Documents.

“ Material Contract ” means any contract, instrument or other agreement to which the Company or any Subsidiary is a party or by which it is bound which is material to the business of the Company and its Significant Subsidiaries, individually or taken as a whole, including those that have been filed or were required to have been filed as an exhibit to the SEC Filings pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.

“ Nasdaq ” means The Nasdaq Capital Market. 

“ Person ” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.

“ SEC Filings ” has the meaning set forth in Section 3.7 .

“ Significant Subsidiary ” means each of Bankers Financial Products Corporation (d/b/a RateWatch), The Deal, LLC and Management Diagnostics Limited (d/b/a BoardEx).

“ Subsidiary ” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.

Article VI
MISCELLANEOUS

6.1          Severability . If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed and enforced to the extent possible or modified in such a way as to make it enforceable, and the invalidity, illegality or unenforceability thereof shall not affect the validity, legality or enforceability of the remaining provisions of this Agreement.

6.2          Governing Law . This Agreement shall be construed and enforced in accordance with and governed by the Laws of the State of New York without regard to the conflicts of laws principles thereto.

6.3          Consent to Jurisdiction; Waiver of Jury Trial . Each Party hereby submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York any action arising out of or relating to this Agreement and agrees that all claims in respect of such action may be heard and determined in any such court. Each Party waives any defense of inconvenient forum to the maintenance of any action so brought. Any Party may make service on the other Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of Notices in Section 6.5 . EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT 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 ACTIONS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. 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 AN 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 6.3 .

6.4          Remedies . The Company and the TCV Holders agree that irreparable damage would occur and that the other Parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company and the TCV Holders shall without the necessity of proving the inadequacy of money damages or posting a bond be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms, provisions and covenants contained herein, this being in addition to any other remedy to which they are entitled at law or in equity. No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor will any single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

6.5          Notices . All notices, demands, consents, approvals, requests or other communications which any of the Parties may desire or be required to give hereunder (collectively, “ Notices ”) shall be in writing and shall be given by a nationally recognized overnight courier, facsimile (or like transmission) or by PDF via email and addressed as follows:

If to a TCV Holder:

Technology Crossover Ventures 

528 Ramona Street 

Palo Alto, California 94301 

Attention: General Counsel 

Facsimile: (650) 618-1989 

Email: legal@tcv.com

With a copy to (which shall not constitute notice to such TCV Holder):

Latham & Watkins LLP
140 Scott Drive 

Menlo Park, California 94025 

Attention: Joshua M. Dubofsky 

Facsimile: (650) 463-2600 

Email: josh.dubofsky@lw.com

If to the Company:

TheStreet, Inc. 

14 Wall Street, 15th Floor 

New York, New York 10005 

Attention: Heather Mars, General Counsel 

Facsimile: (212) 321-5015 

Email: heather.mars@thestreet.com

With a copy to (which shall not constitute notice to the Company):

Orrick, Herrington & Sutcliffe LLP 

405 Howard Street 

San Francisco, California 94105
Attention: Karen Dempsey
Fax: (415) 773-5759 

Email: kdempsey@orrick.com

The Company or the TCV Holders may change its address for Notices hereunder by a Notice given pursuant to this Section 6.5 . A Notice sent in compliance with the provisions of this Section 6.5 shall be deemed given on the first business day following the day on which the Notice was delivered to an overnight courier or, if notice is given by facsimile or email, upon confirmation of transmission by the transmitting equipment or email confirmation that such notice was received, as the case may be.

6.6          Expenses . All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including accounting and legal fees shall be paid by the party incurring such expenses, except that, upon consummation of the transactions contemplated hereby, the Company shall pay up to $50,000 of the reasonable and documented out-of-pocket fees and expenses incurred by the TCV Holders, including the reasonable and documented fees and expenses of counsel for the TCV Holders. 

6.7          Indemnification . In consideration of each TCV Holder’s execution and delivery of this Agreement and in addition to all of the Company’s other obligations hereunder, the Company shall defend, protect, indemnify and hold harmless each TCV Holder and all of their stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “ Indemnitees ”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “ Indemnified Liabilities ”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement or any other certificate, instrument or document contemplated hereby, (b) any breach of any covenant, agreement or obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated hereby or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of this Agreement or any other certificate, instrument or document contemplated hereby, other than claims for indemnification within the scope of Section 10 of the Investor Rights Agreement, (ii) any transaction used to finance in whole or in part, directly or indirectly, the Cash Consideration, the exchange of the Series B Preferred Stock or the other transactions contemplated hereby, including the Concurrent Private Placement, or (iii) the status of such TCV Holder as an investor in the Company pursuant to the transactions contemplated by this Agreement, except, in each case, with respect to any Indemnified Liabilities that resulted solely from any TCV Holder’s gross negligence, willful misconduct or fraud. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 6.7 shall be the same as those set forth in Section 10 of the Investor Rights Agreement.

6.8          References, Pronouns and Headings . Except as otherwise specifically indicated, all references to Section or Subsection numbers refer to Sections and Subsections of this Agreement and all references to Exhibits refer to the Exhibits attached hereto. The words “hereby,” “hereof,” “herein,” “hereto,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular Section or Subsection hereof. The word “hereafter” shall mean after, and the term “heretofore” shall mean before, the date of this Agreement. The word “including” shall not be construed as terms of limitation. As used herein, all pronouns shall include the masculine, feminine, neuter, singular and plural thereof wherever the context and facts require such construction. The headings, titles and subtitles herein are inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof.

6.9          Successors and Assigns . Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the Parties will bind and inure to the benefit of the respective permitted successors and assigns of the Parties, whether so expressed or not.

6.10        Entire Agreement . This Agreement (together with the Investor Rights Agreement) among the Company and the TCV Holders constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof or thereof. No representation, inducement, promise, understanding, condition or warranty not set forth in this Agreement (or in any other agreements contemplated hereby) has been made or relied upon by any Party. This Agreement is not intended to confer upon any person other than the Parties any rights or remedies hereunder. This Agreement may not be modified or amended and no provision hereof may be waived except by an instrument or instruments in writing signed by each Party hereto.

6.11        Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in PDF format shall be sufficient to bind the Parties to the terms and conditions of this Agreement.

[ Signature page follows ]

The Parties have executed this Exchange Agreement as of the date first above written.

Disclosure Schedules

These are the “Disclosure Schedules” referred to in the Exchange Agreement dated as of November 10, 2017 (the “ Exchange Agreement ”) among TheStreet, Inc., a Delaware corporation, TCV VI, L.P., a Delaware limited partnership, and TCV Member Fund, L.P., a Cayman Islands exempted limited partnership. Capitalized terms used but not defined herein have the meanings assigned to them in the Exchange Agreement.

Schedule 3.5(c)(ii)              Capitalization .

The transactions contemplated by the following:

a.           Employment Agreement dated as of November 8, 2017, between James J. Cramer and the Company (the “ Cramer Employment Agreement ”).

Schedule 3.8         No Material Adverse Change .

The transactions contemplated by the following:

b.           Cramer Employment Agreement.

Schedule 3.13       Labor Matters .

The following agreements:

a.           Cramer Employment Agreement.

Schedule 3.18       Brokers and Finders .

The following agreements: 

a.           Letter Agreement, dated September 11, 2017, between TheStreet, Inc. and Lake Street Capital Markets, LLC.

b.           Letter Agreement, dated November 7, 2017, between TheStreet, Inc. and B. Riley FBR, Inc.

Schedule 3.19       Transactions with Affiliates .

The transactions contemplated by the following:

a.           Cramer Employment Agreement.

Exhibit 10.2

Execution Version

SECURITIES PURCHASE AGREEMENT

THIS SECURITIES PURCHASE AGREEMENT (this “ Agreement ”) dated as of November 10, 2017, by and among TheStreet, Inc., a Delaware corporation (the “ Company ”), and each of those entities (each an “ Investor ” and collectively the “ Investors ”) listed on the Schedule of Investors attached as Exhibit A (the “ Schedule of Investors ”).

Recitals

WHEREAS, the Company and the Investors are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the 1933 Act (as defined herein) and Rule 506 of Regulation D as promulgated by the U.S. Securities and Exchange Commission (the “ SEC ”) thereunder;

WHEREAS, the Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms and conditions stated in this Agreement, an aggregate of $7,849,999.30 (the “ Purchase Price ”) of the Company’s shares (the “ Shares ”) of common stock, par value $0.01 per share (the “ Common Stock ”), at a purchase price of $1.10 per Share (the “ Per Share Price ”);

WHEREAS, contemporaneous with the sale of the Shares, the parties hereto will execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit B (the “ Registration Rights Agreement ”), pursuant to which the Company will agree to provide certain registration rights under the 1933 Act and the rules and regulations promulgated thereunder, and applicable state securities laws;

WHEREAS, concurrently with the consummation of the transactions contemplated hereby, the Company proposes to enter into an exchange agreement (the “ TCV Agreement ”) with entities affiliated with Technology Crossover Ventures (collectively, “ TCV ”), pursuant to which TCV will exchange all of the shares of the Company’s Series B convertible preferred stock held by TCV in exchange for an aggregate of (i) 6,000,000 newly issued shares of Common Stock (the “ TCV Shares ”) and (ii) an amount in cash equal to $20,000,000 (such exchange and related transactions, the “ TCV Exchange ”);

WHEREAS, the consummation of the transactions contemplated hereby shall occur concurrently with, and be conditioned on, the consummation of such TCV Exchange.

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

1.             Definitions . In addition to those terms defined above and elsewhere in this Agreement, for the purposes of this Agreement, the following terms shall have the meanings set forth below:

“ 1933 Act ” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“ 1934 Act ” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“ Affiliate ” means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is controlled by, or is under common Control with, such Person.

“ Agent ” means Lake Street Capital Markets, LLC.

“ Business Day ” means any day, other than a Saturday or Sunday or other day, on which banks in the City of New York are authorized or required by law or executive order to remain closed.

“ Company’s Knowledge ” means the actual knowledge of the executive officers (as defined in Rule 405 under the 1933 Act) of the Company, after due inquiry.

“ Confidential Information ” means trade secrets, confidential information and know-how (including but not limited to ideas, formulae, compositions, processes, procedures and techniques, research and development information, computer program code, performance specifications, support documentation, drawings, specifications, designs, business and marketing plans, and customer and supplier lists and related information).

“ Control ” (including the terms “controlling”, “controlled by” or “under common control with”) means the possession, direct or indirect, 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.

“ Effective Date ” means the date on which the initial Registration Statement is declared effective by the SEC.

“ Effectiveness Deadline ” means the date on which the initial Registration Statement is required to be declared effective by the SEC under the terms of the Registration Rights Agreement.

“ Insolvent ” means, with respect to any Person, (i) the present fair saleable value of such Person’s assets is less than the amount required to pay such Person’s total indebtedness, (ii) such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

“ Intellectual Property Rights ” means all of the following: (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names, together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; and (v) proprietary computer software (including but not limited to data, data bases and documentation).

“ Material Adverse Effect ” means a material adverse effect on (i) the assets, properties, liabilities, operations, results of operations, condition (financial or otherwise), business, or prospects of the Company and its Significant Subsidiaries, individually or taken as a whole, (ii) the transactions contemplated hereby or the other Transaction Documents or (iii) the ability or authority of the Company to perform its obligations under the Transaction Documents.

“ Material Contract ” means any contract, instrument or other agreement to which the Company or any Subsidiary is a party or by which it is bound which is material to the business of the Company and its Significant Subsidiaries, individually or taken as a whole, including those that have been filed or were required to have been filed as an exhibit to the SEC Filings pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.

“ Nasdaq ” means The Nasdaq Capital Market.

“ Person ” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.

“ Registration Statement ” has the meaning set forth in the Registration Rights Agreement.

“ SEC Filings ” has the meaning set forth in Section 4.6 .

“ Significant Subsidiary ” means each of Bankers Financial Products Corporation (d/b/a RateWatch), The Deal, LLC and Management Diagnostics Limited (d/b/a BoardEx).

“ Subsidiary ” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.

“ Transaction Documents ” means this Agreement and the Registration Rights Agreement.

2.             Purchase and Sale of the Shares . Subject to the terms and conditions of this Agreement, on the Closing Date, each Investor shall severally, and not jointly, purchase, and the Company shall sell and issue to each Investor, the Shares in the amounts set forth opposite each such Investor’s name on the Schedule of Investors in exchange for the portion of the Purchase Price equal to the Per Share Price multiplied by the number of Shares to be purchased by such Investor as specified in Section 3 below.

3.             Closing . Upon confirmation that the other conditions to closing specified herein have been satisfied or duly waived by the Investors, the Company shall cause to be issued and delivered to each Investor book-entry notations registered in such Investor’s name, representing the Shares that such Investor is purchasing against payment of such Investor’s pro rata portion of the Purchase Price therefor as set forth opposite such Investor’s name on the Schedule of Investors by a wire transfer in same day funds to be sent to the account of the Company as instructed in writing by the Company. On the date (the “ Closing Date ”) the Company receives the Purchase Price, the book-entry notations evidencing the Shares shall be delivered to the Investors (the “ Closing ”). The Closing of the purchase and sale of the Shares shall take place at the offices of Orrick, Herrington & Sutcliffe LLP at 405 Howard Street, San Francisco, California concurrently or promptly following the satisfaction or waiver of the conditions to the obligations of the parties hereto set forth in Section 6 occurs or at such other location and on such other date as the Company and the Investors shall mutually agree.

4.             Representations and Warranties of the Company . The Company hereby represents and warrants to the Investors that, except as set forth in the SEC Filings where specifically referenced or on the corresponding sections of the schedules delivered herewith (collectively, the “ Disclosure Schedules ”):

4.1            Organization, Good Standing and Qualification . Each of the Company and its Subsidiaries is duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (to the extent the concept of good standing is recognized in the relevant jurisdiction) and has all requisite power and authority to carry on its business as now conducted and to own or lease its properties. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation or other entity and is in good standing in each jurisdiction (to the extent the concept of good standing is recognized in the relevant jurisdiction) in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to be in good standing or so qualify has not had and could not reasonably be expected to have a Material Adverse Effect. The Company’s Subsidiaries are listed on Schedule 4.1 hereto.

4.2            Authorization . The Company has all corporate power and authority and has taken all requisite action on the part of the Company, its officers, directors and stockholders necessary for (i) the authorization, execution and delivery of the Transaction Documents, (ii) the authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization, issuance and delivery of the Shares, and no further filing, consent or authorization is required by the Company, its Board of Directors or its stockholders. This Agreement and the other Transaction Documents have been duly executed and delivered by the Company, and assuming due execution and delivery thereof by each of the other parties thereto, the Transaction Documents constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

4.3            Capitalization . Schedule 4.3(1) sets forth as of the date hereof, (a) the authorized capital stock of the Company; (b) the number of shares of capital stock issued and outstanding; (c) the number of shares of capital stock issuable pursuant to the Company’s stock plans; and (d) the number of shares of capital stock issuable and reserved for issuance pursuant to securities exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights and were issued in full compliance with applicable state and federal securities law and were not issued in violation of any pre-emptive right, resale right, right of first refusal or similar right. All of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with applicable state and federal securities law and were not issued in violation of any pre-emptive right, resale right, right of first refusal or similar right and are owned by the Company, beneficially and of record, subject to no lien, encumbrance or other adverse claim. No Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of the Company. Except as described on Schedule 4.3(2) , there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind and except as contemplated by this Agreement, neither the Company nor any of its Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind. Except as described on Schedule 4.3(3) and except for the Registration Rights Agreement, there are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the Company and any of the securityholders of the Company relating to the securities of the Company held by them. Except as described on Schedule 4.3(4) and except as provided in the Registration Rights Agreement, no Person has the right to require the Company to register any securities of the Company under the 1933 Act, whether on a demand basis or in connection with the registration of securities of the Company for its own account or for the account of any other Person. The issuance and sale of the Shares hereunder will not obligate the Company to issue shares of Common Stock or other securities to any other Person (other than the Investors) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. The Company does not have outstanding stockholder purchase rights or “poison pill” or any similar arrangement in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of certain events.

4.4            Valid Issuance . The Shares have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and shall be free and clear of all preemptive or similar rights (except for those which have been validly waived prior to the date hereof), taxes, liens and charges and other encumbrances and restrictions (other than those created by the Investors), except for restrictions on transfer set forth in this Agreement or imposed by applicable securities laws.

4.5            Consents . The execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale of the Shares require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable state securities laws and Nasdaq listing requirements, post-sale filings pursuant to applicable state and federal securities laws which the Company undertakes to file within the applicable time periods and those where the failure to obtain such consent, take such action or make such filing would not reasonably be expected to result in a Material Adverse Effect.

4.6           Delivery of SEC Filings; Business . The Company has made available to the Investors through the SEC’s EDGAR system, true and complete copies of the Company’s reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act during the two (2) years prior to the date hereof (collectively with all amendments, exhibits, financial statements, notes and schedules thereto, the “ SEC Filings ”). The SEC Filings are the only filings required of the Company pursuant to the 1934 Act for such period. The Company and its Subsidiaries are engaged in all material respects only in the business described in the SEC Filings.

4.7           Use of Proceeds . The net proceeds of the sale of the Shares shall be used by the Company for funding in part the cash consideration to be paid in the TCV Exchange.

4.8           No Material Adverse Change . Since December 31, 2016, except as identified and described on Schedule 4.8 , there has not been:

(i)           any change in the consolidated assets, liabilities, financial condition or operating results of the Company from that reflected in the financial statements included in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, except for changes in the ordinary course of business which have not had and would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;

(ii)          any declaration or payment of any dividend, or any authorization or payment of any distribution, on any of the capital stock of the Company, or any redemption or repurchase of any securities of the Company;

(iii)         any material damage, destruction or loss, whether or not covered by insurance to any assets or properties of the Company or its Subsidiaries;

(iv)         any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed to it;

(v)          any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a Subsidiary, except in the ordinary course of business and which is not material to the assets, properties, financial condition, operating results or business of the Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is proposed to be conducted);

(vi)         any change or amendment to the Company’s Certificate of Incorporation or Bylaws, or material change to any Material Contract or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject;

(vii)        any material labor difficulties or labor union organizing activities with respect to employees of the Company or any Subsidiary;

(viii)       any material transaction entered into by the Company or a Subsidiary other than in the ordinary course of business;

(ix)          the loss of the services of any key employee, or material change in the composition or duties of the senior management of the Company or any Subsidiary;

(x)           the loss, to the Company’s Knowledge, threatened loss of any customer which has had or could reasonably be expected to have a Material Adverse Effect; or

(xi)          any other event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect.

4.9          SEC Filings; Financial Information; S-3 Eligibility .

(a)           At the time of filing thereof, the SEC Filings complied as to form in all material respects with the requirements of the 1934 Act and, as of their respective dates, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. To the Company’s Knowledge, the written information furnished by or on behalf of the Company to any of the Investors prior to the date hereof in connection with the transactions contemplated hereby which is not included in the SEC Filings (including, without limitation, information referred to in Section 5.6 of this Agreement or in the disclosure schedules to this Agreement), taken as a whole, does not contain, as of the date furnished, any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made; provided that with respect to projections, forecasts, estimates, budgets and other forward-looking statements and information that were prepared by the Company, the Company only represents that such projections, forecasts, estimates, budgets and other forward-looking information were prepared in good faith upon assumptions believed by the Company to be reasonable at the time made.

(b)           The financial statements included in each SEC Filing comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or to the extent corrected by a subsequent restatement) and present fairly, in all material respects, the consolidated financial position of the Company as of the dates shown and its consolidated results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis (“ GAAP ”) (except as may be disclosed therein or in the notes thereto, and, in the case of quarterly financial statements, except for normal year-end audit adjustments and as otherwise as permitted by Form 10-Q under the 1934 Act).

(c)           The Company satisfies the “registrant requirements” for use of Form S-3 set forth in General Instruction I.A to Form S-3 promulgated by the SEC.

4.10         No Conflict, Breach, Violation or Default . The execution, delivery and performance of the Transaction Documents by the Company and the issuance and sale of the Shares will not (i) conflict with or result in a breach or violation of (a) any of the terms and provisions of, or constitute a default under the Company’s Certificate of Incorporation or the Company’s Bylaws, both as in effect on the date hereof (true and complete copies of which have been made available to the Investors through the SEC’s EDGAR system), or (b) any statute, rule, regulation or order of Nasdaq, any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, any Subsidiary or any of their respective assets or properties, except as which have not had and would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien, encumbrance or other adverse claim upon any of the properties or assets of the Company or any Subsidiary or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any contract required to be filed as an exhibit to the SEC Filings pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K, except as which have not had and would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.

4.11         Tax Matters . The Company and each of its Subsidiaries has filed all tax returns required to be filed by the Company or such Subsidiary with all appropriate governmental agencies within the applicable periods for such filings (with due regard to any extension) and has paid all taxes required to be paid, except for any such failures to file or pay that would not individually or in the aggregate have a Material Adverse Effect. No material deficiencies for any tax are currently assessed against the Company or any of its Subsidiaries, and no tax returns of the Company or any of its Subsidiaries have been audited during the last three years, and, there is no such audit pending or, to the knowledge of the Company, contemplated. There is no outstanding claim by an authority in a jurisdiction where the Company does not file tax returns that it is or may be subject to the imposition of any material tax by that jurisdiction.

4.12         Title to Properties . The Company and its Subsidiaries do not own any real property; except as disclosed in the SEC Filings, the Company and each Subsidiary has good and marketable title to all personal property owned by it, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or currently planned to be made thereof by them; and except as disclosed in the SEC Filings, the Company and each Subsidiary holds any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or currently planned to be made thereof by them.

4.13         Certificates, Authorities and Permits . The Company and each Subsidiary possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it, except where such failure has not had and would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or such Subsidiary, would reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.

4.14         Labor Matters . Except as described on Schedule 4.14 , the Company has described in, or filed as an exhibit to, the SEC Filings filed prior to the date of this Agreement all of the following types of documents, agreements, plans or arrangements that are required by federal securities laws to be described in, or filed as an exhibit to, the SEC Filings: employment agreements, consulting agreements, deferred compensation, pension or retirement agreements or arrangements (including all “employee pension benefit plans” as defined in Section 3(2) of ERISA, bonus, incentive or profit-sharing plans or arrangements, or labor or collective bargaining agreements in effect by the Company and its Subsidiaries) (the “ ERISA Documents ”). Except for any compliance failures that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (a) the Company and its Subsidiaries are in compliance in all respects with all applicable laws and regulations relating to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours, and with the terms of the ERISA Documents; and (b) each such ERISA Document is in compliance in all respects with all applicable requirements of ERISA. To the Company’s Knowledge, none of the Company’s or its Subsidiaries’ employees are obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or her employment obligations to the Company or its Subsidiaries or that would conflict with the Company’s and its Subsidiaries’ business as now conducted or proposed to be conducted, except for such contracts and other agreements, judgments, decrees and orders that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

4.15         Intellectual Property . All Intellectual Property Rights purported to be owned by the Company or any of its Subsidiaries that were developed, worked on or otherwise held by any employee, officer, consultant or otherwise are owned free and clear by the Company or one of its Subsidiaries (as the case may be) by operation of law or have been validly assigned to the Company one of its Subsidiaries (as the case may be) other than those Intellectual Property Rights where the failure to own or assign such rights would not, individually or in its aggregate be reasonably likely to have a Material Adverse Effect. The Intellectual Property Rights are sufficient in all material respects to carry on the business of the Company and each of its Subsidiaries as presently conducted and as proposed to be conducted. To the knowledge of the Company, with such exceptions as are not, individually or in the aggregate reasonably likely to have a Material Adverse Effect, the Intellectual Property Rights purported to be owned by the Company or any of its Subsidiaries do not infringe the intellectual property rights of any third party. To the Knowledge of the Company, the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted does not infringe or otherwise impair or conflict with (collectively, “ Infringe ”) any Intellectual Property Rights of any third party or any confidentiality obligation owed to a third party, and, to the Company’s Knowledge, the Intellectual Property Rights and Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted are not being Infringed by any third party. There is no litigation or order pending or outstanding or, to the Company’s Knowledge, threatened, that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of any Intellectual Property Rights or Confidential Information of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ use of any Intellectual Property Rights or Confidential Information owned by a third party, and, to the Company’s Knowledge, there is no valid basis for the same.

4.16         Litigation . With such exceptions that, individually or in the aggregate, are not reasonably expected to have a Material Adverse Effect, there is no litigation or governmental proceeding pending or, to the Company’s Knowledge, threatened, against the Company or any of its Subsidiaries or affecting any of the properties or assets of the Company or any of its Subsidiaries. Neither the Company nor any Subsidiary is in default with respect to any order, writ, injunction, decree, ruling or decision of any court, commission, board or other government agency that is expressly applicable to the Company or any Subsidiary or any of their assets or property.

4.17         Insurance Coverage . The Company and each Subsidiary maintains insurance coverage that is customary for comparably situated companies for the business being conducted and properties owned or leased by the Company and each Subsidiary. All such insurance is fully in force, except where the failure to be in full force has not had and would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect

4.18         Compliance with Nasdaq Continued Listing Requirements . Except as described in the SEC Filings, the Company is in compliance with applicable Nasdaq continued listing requirements. Except as described in the SEC Filings, there are no proceedings pending or, to the Company’s Knowledge, threatened against the Company relating to the continued listing of the Common Stock on Nasdaq and the Company has not received any notice of, nor to the Company’s Knowledge is there any basis for, the delisting of the Common Stock from Nasdaq. The issuance by the Company of the Shares shall not have the effect of delisting or suspending the Common Stock from Nasdaq.

4.19         Brokers and Finders . No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company, other than as described in Schedule 4.19 . The Company shall pay, and hold each Investor harmless against, any liability, loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim.

4.20         Securities Law Compliance . Assuming the accuracy of the representations and warranties of the Investors set forth in Section 5 hereof, the offer, sale and issuance of the Shares pursuant to this Agreement will be exempt from the registration requirements of the 1933 Act. The Company has not, in connection with the transactions contemplated by this Agreement, engaged in: (a) any form of general solicitation or general advertising (as those terms are used within the meaning of Rule 502(c) promulgated under the 1933 Act); (b) any action involving a “public offering” within the meaning of Section 4(a)(2) of the 1933 Act; or (c) any action that would require the registration under the 1933 Act of the offer and sale of the Shares pursuant to this Agreement. As used herein, the terms “offer” and “sale” have the meanings specified in Section 2(a)(3) of the 1933 Act. Without limiting the generality of the foregoing, none of the Company, its Subsidiaries or any of their Affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Shares under the 1933 Act, whether through integration with prior offerings or otherwise, or cause this offering of the Shares to require approval of stockholders of the Company for purposes of the 1933 Act or any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated for quotation. None of the Company, its Subsidiaries, their Affiliates nor any Person acting on their behalf will take any action or steps referred to in the preceding sentence that would require registration of the issuance of any of the Shares under the 1933 Act or cause the offering of any of the Shares to be integrated with other offerings for purposes of any such applicable stockholder approval provisions.

4.21         Transactions with Affiliates . Except as disclosed in the SEC Filings or as disclosed on Schedule 4.21 , none of the officers or directors of the Company and, to the Company’s Knowledge, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than as holders of stock options and/or warrants, and for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the Company’s Knowledge, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.

4.22         Internal Controls . The Company is in material compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof and that are currently applicable to the Company. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the 1934 Act). Such disclosure controls and procedures are designed to provide reasonable assurance that material information relating to the Company, including its Subsidiaries, that is required to be disclosed by the Company in the reports that it furnishes or files under the 1934 Act is reported within the time periods specified in the rules and forms of the SEC and that such material information is communicated to the Company’s management to allow timely decisions regarding required disclosure. To the Company’s Knowledge, there is no (i) significant deficiency in the design or operation of internal controls which could adversely affect the Company’s or any of its Subsidiary’s ability to record, process, summarize and report financial data or any material weaknesses in internal controls; or (ii) fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s or any of its Subsidiary’s internal controls.

4.23         Off Balance Sheet Arrangements . There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.

4.24          Investment Company . Neither the Company nor any of its Subsidiaries is, and immediately after giving effect to the sale of the Shares in accordance with this Agreement and the application of the proceeds thereof will not be required to be registered as, an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

4.25          Application of Takeover Protections . The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, interested shareholder, business combination, poison pill (including, without limitation, any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its formation (including, without limitation, Section 203 of the Delaware General Corporation Law) which is or could become applicable to any Investor as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Shares and any Investor’s ownership of the Shares.

4.26          Solvency . Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any Knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent.

4.27          Conduct of Business . Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under its Certificate of Incorporation, any certificate of designations, preferences or rights of any other outstanding series of preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation or certificate of incorporation or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

4.28          Compliance with Anti-Money Laundering Laws . The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited to, those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the USA Patriot Act of 2001 and the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

4.29          No Conflicts with Sanctions Laws. Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee, agent, Affiliate or other person associated with or acting on behalf of the Company or any of its Subsidiaries or Affiliates is, or is directly or indirectly owned or controlled by, a Person that is currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”) or the U.S. Departments of State or Commerce and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“ UNSC ”), the European Union, Her Majesty’s Treasury (“ HMT ”) or any other relevant sanctions authority (collectively, “ Sanctions ”), nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject or target of a comprehensive embargo or Sanctions prohibiting trade with the country or territory, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “ Sanctioned Country ”); no action of the Company or any of its Subsidiaries in connection with (i) the execution, delivery and performance of this Agreement and the other Transaction Documents, (ii) the issuance and sale of the Shares or (iii) the direct or indirect use of proceeds from the Shares or the consummation of any other transaction contemplated hereby or by the other Transaction Documents or the fulfillment of the terms hereof or thereof, will result in the proceeds of the transactions contemplated hereby and by the other Transaction Documents being used, or loaned, contributed or otherwise made available, directly or indirectly, to any Subsidiary , joint venture partner or other person or entity, for the purpose of (i) unlawfully funding or facilitating any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) unlawfully funding or facilitating any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, or since the Company’s or such subsidiary’s formation, whichever is more recent, the Company and its Subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

4.30          Anti-Bribery . Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer, employee, agent, Affiliate or other person associated with or acting on behalf of the Company, or any of its Subsidiaries or Affiliates, has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee, to any employee or agent of a private entity with which the Company does or seeks to do business (a “ Private Sector Counterparty ”) or to foreign or domestic political parties or campaigns from corporate funds, (iii) violated or is in violation of any provision of any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “ FCPA ”), the U.K Bribery Act 2010, or any other similar law of any other jurisdiction in which the Company operates its business, including, in each case, the rules and regulations thereunder, (iv) taken, is currently taking or will take any action in furtherance of an offer, payment, gift or anything else of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage or (v) otherwise made any bribe, rebate, payoff, influence payment, unlawful kickback or other unlawful payment; the Company and each of its respective Subsidiaries has instituted and has maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with the laws referred to in (iii) above and with this representation and warranty; and none of the Company, nor any of its Subsidiaries or Affiliates will directly or indirectly use the proceeds of the sale of the Shares or lend, contribute or otherwise make available such proceeds to any subsidiary, Affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate the laws and regulations referred to in (iii) above.

4.31          Shell Company Status . The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).

4.32          No Disqualification Events . With respect to Shares to be offered and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“ Regulation D Securities ”), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of sale (each, an “ Issuer Covered Person ” and, together, “ Issuer Covered Persons ”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “ Disqualification Event ”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Investors a copy of any disclosures provided thereunder.

4.33          Manipulation of Price . The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result, or that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) other than the Persons set forth on Schedule 4.19 , sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares, or (iii) other than the Persons set forth on Schedule 4.19 , paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.

5.             Representations and Warranties of the Investors . Each of the Investors hereby severally, and not jointly, represents and warrants to the Company that:

5.1             Organization and Existence . Such Investor is a validly existing corporation, limited partnership or limited liability company and has all requisite corporate, partnership or limited liability company power and authority to purchase the Shares pursuant to this Agreement.

5.2            Authorization . The execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is a party have been duly authorized and, assuming due execution and delivery thereof by each of the other parties thereto, each will constitute the valid and legally binding obligation of such Investor, enforceable against such Investor in accordance with their respective terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

5.3            Consents . No consent, approval, license or authorization of, or designation, declaration or filing with, any court or governmental authority is or will be required on the part of such Investor in connection with the execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is a party, except for: (a) those which have already been made or granted; (b) the filing with the SEC of any filing required pursuant to Section 13 and/or Section 16 of the 1934 Act; and (c) those where the failure to obtain such consent, approval or license would not have a material adverse effect on the ability of the Investors to perform their obligations hereunder.

5.4            Purchase Entirely for Own Account . The Shares to be received by such Investor hereunder will be acquired for such Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act, and such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to such Investor’s right at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time. Neither such Investor nor any Affiliate of such Investors is a broker-dealer registered with the SEC under the 1934 Act or an entity engaged in a business that would require it to be so registered.

5.5            Investment Experience . Such Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Shares and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.

5.6            Disclosure of Information . Such Investor has had an opportunity to receive all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Shares. Such Investor acknowledges receipt of copies of the SEC Filings. Neither such inquiries nor any other due diligence investigation conducted by such Investor shall modify, limit or otherwise affect such Investor’s right to rely on the Company’s representations and warranties contained in this Agreement.

5.7            Restricted Securities . Such Investor understands that the are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances.

5.8            Legends . It is understood that the book-entry notations evidencing the Shares shall bear a restrictive legend in substantially the following form (in addition to any legend required under applicable state securities laws), until such time as they are not required under Section 7.5 or applicable law:

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN A SECURITIES PURCHASE AGREEMENT, DATED AS OF NOVEMBER 10, 2017, COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY AT THE COMPANY’S PRINCIPAL EXECUTIVE OFFICES.”

5.9           Accredited Investor . Such Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act.

5.10         No General Solicitation . Such Investor did not learn of the investment in the Shares as a result of any general advertising or, to such Investor’s knowledge, general solicitation.

5.11         Brokers and Finders . No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of such Investor.

5.12        Prohibited Transactions . Since the earlier of (a) such time as such Investor was first contacted by the Company or any other Person acting on behalf of the Company regarding the transactions contemplated hereby or (b) thirty (30) days prior to the date hereof, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Shares, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “ Trading Affiliates ”) has, directly or indirectly, (A) effected or agreed to effect any transactions in the securities of the Company or involving the Company’s securities while in possession of any material nonpublic information of the Company disclosed to such Investor in connection with such Investor’s decision-making with respect to their acquisition of the Shares or (B) effected or agreed to effect any short sale (as defined in Rule 200 of Regulation SHO under the 1934 Act (“ Short Sales ”)), whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the 1934 Act) with respect to the Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Shares (each, a “ Prohibited Transaction ”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date, (iii) the Effectiveness Deadline and (iv) the date the Shares may be sold pursuant to Rule 144, each Investor shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in a Prohibited Transaction. Each Investor understands and acknowledges that the SEC currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the 1933 Act, as set forth in the SEC’s Compliance and Disclosure Interpretation 239.10.

5.13        Trading Price . Such Investor acknowledges that while the Per Share Price has been determined through negotiations with third-party unaffiliated Investors, the Company’s stock is thinly traded, and accordingly the trading price of the Company’s stock may not accurately reflect the current value of the Company.

6.            Conditions to Closing .

6.1           Conditions to the Investors’ Obligations . The obligations of the Investors to purchase the Shares at the Closing is subject to the satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in whole or in part by the Investors:

(a)           The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. Such Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect.

(b)           The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date.

(c)           The Company shall have issued to each Investor book-entry shares representing the number of Shares set forth opposite such Investor’s name in the Schedule of Investors.

(d)           The Company shall have duly executed and delivered the Registration Rights Agreement.

(e)           The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Shares on the Nasdaq Capital Market, a copy of which shall have been provided to the Investors.

(f)            The Company shall have received gross proceeds from the sale of the Shares as contemplated hereby of the Purchase Price.

(g)           The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company, or any authorized committee thereof, approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.

(h)           The Investors shall have received an opinion from Orrick, Herrington & Sutcliffe LLP, the Company’s counsel, dated as of the Closing Date, in form and substance reasonably acceptable to the Investors and addressing such legal matters as the Investors may reasonably request.

(i)            No stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock.

(j)            The Company shall have consummated the TCV Exchange.

(k)           The Company shall have delivered to such Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries listed on Exhibit C hereto in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) days of the Closing Date.

(l)            The Company shall have delivered to such Investor a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date.

(m)         The Company shall have obtained all governmental, regulatory or third party consents and approvals, including, without limitation, from Nasdaq, if any, necessary for the sale of the Shares.

6.2          Conditions to Obligations of the Company . The Company’s obligation to sell and issue the Shares at the Closing is subject to the satisfaction on or prior to the Closing Date of the following conditions, any of which may be waived in whole or in part by the Company:

(a)           The representations and warranties made by the Investors in Section 5 hereof, other than the representations and warranties contained in Sections 5.4 , 5.5 , 5.6 , 5.7 , 5.8 , 5.9 and 5.10 (the “ Investment Representations ”), shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investment Representations shall be true and correct in all respects when made, and shall be true and correct in all respects on the Closing Date with the same force and effect as if they had been made on and as of said date.

(b)           The Investors shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to the Closing Date.

(c)           The Investors shall have executed and delivered the Registration Rights Agreement.

(d)          The Investors shall have delivered the Purchase Price to the Company.

6.3          Termination of Obligations to Effect Closing; Effects .

(a)          The obligations of the Company, on the one hand, and any Investor, on the other hand, to effect the Closing shall terminate as follows:

(i)          Upon the mutual written consent of the Company and such Investor;

(ii)         By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been waived by the Company;

(iii)        By such Investor if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by such Investor; or

(iv)        By either the Company or the Investors if the Closing has not occurred on or prior to November 17, 2017;

provided , however , that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.

(b)           Nothing in this Section 6.3 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction Documents.

7.             Covenants and Agreements of the Parties .

7.1           Form D and Blue Sky . The Company agrees to file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to each Investor promptly after such filing. The Company shall, on or before the Closing Date, take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Shares for sale to the Investors at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Investors on or prior to the Closing Date. The Company shall make all filings and reports relating to the offer and sale of the Shares required under applicable securities or “Blue Sky” laws of the states of the United States following the Closing Date.

7.2           Reporting Status . Until the earlier of (A) six months after such date as all of the Registrable Securities (as defined in the Registration Rights Agreement) may be sold without restriction by the holders thereof pursuant to Rule 144 or any other rule of similar effect and without the requirement for the Company to be in compliance with Rule 144(c)(1) and (B) such date as all of the Registrable Securities shall have been resold pursuant to a Registration Statement, Rule 144 or otherwise in a transaction in which the transferee receives freely tradable shares (the “ Reporting Period ”), the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination. The Company hereby covenants and agrees to use commercially reasonable efforts to maintain its eligibility to register the Shares for resale by the Investors on Form S-3. The failure to file a report in a timely manner shall not be deemed to be a breach of this Section 7.2 so long as the Investors are able to sell their Shares without restriction or interruption under an effective Registration Statement filed with the SEC by the Company.

7.3           Notice of Disqualification Events . The Company will notify the Investors in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.

7.4           Listing . The Company will use reasonable best efforts to continue the listing and trading of its Common Stock and to effect and maintain the listing of the Shares on Nasdaq.

7.5           Transfer; Removal of Legends . The Shares may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered for resale under the 1933 Act as contemplated by the Registration Rights Agreement, (B) such Investor shall have delivered to the Company an opinion of counsel, in a reasonably acceptable form, to the effect that such Shares to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Investor provides the Company with reasonable assurance that such Shares can be sold, assigned or transferred pursuant to Rule 144. The Company shall, or shall cause the Transfer Agent to, issue replacement book-entry notations representing the Shares sold or disposed of without restrictive legends, or, at the election of such Investor, by delivery via the Deposit/Withdrawal at Custodian system of The Depository Trust Company (“ DTC ”), upon the earlier of (i) registration for resale under the 1933 Act at which time the Company shall cause its counsel to deliver to the Transfer Agent one or more blanket opinions to the effect that the removal of such legends in such circumstances may be effected under the 1933 Act or (ii) the Shares becoming freely tradable by a non-Affiliate pursuant to Rule 144 and such non-Affiliate delivers to the Company a customary representation that the Shares may be sold pursuant to Rule 144.

7.6           Transfer Restrictions .

(a)            Notwithstanding anything to the contrary this Agreement, the Investors will not at any time directly or indirectly transfer or assign any Shares, or any interest therein, knowingly to (i) any person or entity that directly competes with the Company in one or more material aspects of the Company's business, as determined in good faith by the Board of Directors of the Company in its reasonable discretion, or (ii) any member of a “group” (as defined in Section 13(d)(3) of the 1934 Act) which has filed a statement of beneficial ownership report on Schedule 13D with the SEC or otherwise expressed an interest in acquiring the Company and any such transfer or assignment shall be null and void unless otherwise approved in advance by the Company; provided , however , that the foregoing shall not restrict any such transfer into the public market pursuant to a bona fide registered public offering or any open market transaction or any transfer made in connection with the sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; provided, further, that the foregoing shall not restrict the ability of the Investors to vote their shares or otherwise execute proxies and/or consents pertaining thereto.

(b)            During the Standstill Period, the Company must be, within a reasonable time after a transfer otherwise permitted hereunder, furnished with written notice of such transfer, including the name and address of such transferee, and no such transfer may be made unless such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the provisions of Section 7.9 .

7.7          Publicity . Except as set forth below, no public release or announcement concerning the transactions contemplated hereby shall be issued by the Company or the Investors without the prior consent of the Company (in the case of a release or announcement by the Investors) or the Investors (in the case of a release or announcement by the Company) (which consents shall not be unreasonably withheld), except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange, securities regulator or securities market, in which case the Company or the Investors, as the case may be, shall (except for filings required to be made by any Investor pursuant to Section 13 and/or Section 16 of the 1934 Act) allow the Investors or the Company, as applicable, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of such issuance. By 9:30 a.m. (New York City time) on the trading day immediately following the date hereof, the Company shall issue a press release (the “ Press Release ”) disclosing all material terms of the transactions contemplated hereby and the other Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents. No later than the fourth trading day following the date hereof, the Company will file a Current Report on Form 8-K describing the terms of the Transaction Documents (and including as exhibits to such Current Report on Form 8-K the Transaction Documents with any schedules attached thereto).

7.8         Confidentiality; Insider Trading Policy .

(a)             Each Investor, severally and not jointly with the other Investors, covenants that until the earlier of (x) the issuance of the Press Release and (y) the first trading day immediately following the date of this Agreement, such Investor will, and will use its commercially reasonable efforts to cause its Affiliates to, maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and Disclosure Schedules.

(b)             The Investors will, and will cause their Affiliates to, maintain the confidentiality of all material nonpublic information of the Company disclosed to any of them by or on behalf of the Investor Designee (in his or her capacity as a member of the Board). The Investor Designee shall further agree to comply with the insider trading compliance program of the Company applicable to outside directors including, but not limited to, trade pre-clearance requirements and trading blackout periods as may be in effect from time to time. In addition, each Investor hereby acknowledges that such Investor is aware that United States securities laws prohibit any person who has received from an issuer material nonpublic information concerning the issuer from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell the securities of such issuer, make investment recommendations based on such material nonpublic information or otherwise affect the trading price of such issuer’s securities.

7.9         Standstill . Each Investor agrees that, from the date hereof until June 30, 2019 (the “ Standstill Period ”), it will not, and it will cause each of its Affiliates, directors and officers not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors (for which the Investor Designee shall not be deemed “disinterested”): (i) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the SEC) to vote, or seek to advise or influence any person or entity (other than an Affiliate of the Investor) with respect to the voting of, any debt or equity securities of the Company, including relating to the election of directors with respect to the Company, (ii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its debt, equity securities or assets, (iii) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act) in connection with any of the foregoing or (iv) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 7.9 other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party; provided , however , that the restrictions set forth in this Section 7.9 shall terminate and be of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise).

7.10         Board Designee . For so long as the Investors collectively beneficially own one hundred percent (100%) of the Shares and five percent (5%) or more of the total issued and outstanding shares of the Company, the Investors shall have the right to designate one member of the Board of Directors of the Company (the “ Investor Designee ”) (and to fill the vacancy of such member in the event of the resignation, death or removal of such member or failure of such member to be elected); provided that such Investor Designee shall qualify as an “independent director” under the listing standards of Nasdaq (or such other exchange on which the Company’s Common Stock may be listed) and shall be required to complete a questionnaire in the same form as has been executed by all other directors for the Company. The initial Investor Designee designated by the Investors shall be Mr. Kevin M. Rendino. Simultaneous with the Closing, the Company shall increase the size of its Board of Directors by one, fill the resulting vacancy with the initial Investor Designee in accordance with the Company’s Bylaws and appoint such Investor Designee as a Class I director. Unless otherwise agreed to by the Company’s Board of Directors, the Investor Designee shall not be appointed to or otherwise gain membership on any of the committees of the Board of Directors. Thereafter, so long as the Investor Designee is reasonably acceptable to the Company’s Nominating and Corporate Governance Committee (for the avoidance of doubt, it being understood that Mr. Kevin M. Rendino is reasonably acceptable to such committee), the Company shall (i) nominate and recommend in the Company’s proxy statement the Investor Designee as a Class I director of the Company’s Board of Directors at each meeting of stockholders of the Company where the class of which the Investor Designee is a member is up for election, which for the avoidance of doubt will be the 2018 annual meeting of stockholders of the Company, and (ii) in the event that the Investor Designee shall resign or be removed as a director for any reason during the period that this Section 7.10 is in effect, fill the vacancy resulting thereby with an Investor Designee. The Company shall provide all rights and benefits of indemnity to each Investor Designee as are provided to other outside directors of the Company. In the event the Company’s Nominating and Corporate Governance Committee does not in good faith approve a particular individual as the Investor Designee for the slate of Class I directors or filling of a vacancy as a result of the process described in this Section 7.10 , then the Investors shall designate a different Investor Designee, whom shall be subject to the same review and approval process and whose nomination will not be unreasonably withheld. For the avoidance of doubt, the Company hereby affirms that the initial Investor Designee identified above satisfies such qualifications. At such time that the Investors no longer collectively beneficially own all of the Shares and five percent (5%) or more of the total issued and outstanding shares of the Company, or any Investor distributes any of such shares to one or more of its investors, the Investors’ right to designate the Investor Designee shall immediately terminate and the Investors shall cause the then-serving Investor Designee to promptly resign from the Company’s Board of Directors. The Investors agree to give prompt notice to the Company if they cease to collectively beneficially own any of the Shares.

7.11         Registration of TCV Shares . In accordance with Section 2(a) of the Registration Rights Agreement, the Investors hereby consent to the inclusion of the TCV Shares in the initial Registration Statement to be prepared and filed by the Company thereby.

8.             Miscellaneous .

8.1            Survival . The representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing of the transactions contemplated by this Agreement.

8.2            Successors and Assigns . This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investors, as applicable, provided, however, that an Investor may assign its rights and delegate its duties hereunder in whole or in part to an Affiliate or to a third party acquiring some or all of its Shares in a transaction complying with applicable securities laws without the prior written consent of the Company or the other Investors. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Without limiting the generality of the foregoing, in the event that the Company is a party to a merger, consolidation, share exchange or similar business combination transaction in which the Common Stock is converted into the equity securities of another Person, from and after the effective time of such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Company hereunder, the term “Company” shall be deemed to refer to such Person and the term “Shares” shall be deemed to refer to the securities received by the Investors in connection with such transaction. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

8.3            Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each party and delivered to the other parties. In the event that any signature is delivered by facsimile transmission, or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof.

8.4            Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

8.5           Notices . Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given as hereinafter described (i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii) if given by facsimile (or like transmission), then such notice shall be deemed given upon receipt of confirmation of complete transmittal, (iii) if given by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (iv) if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such notice by the recipient or (B) three days after such notice is deposited in first class mail, postage prepaid, and (v) if given by an internationally recognized overnight air courier, then such notice shall be deemed given one Business Day after delivery to such carrier. All notices shall be addressed to the party to be notified at the address as follows, or at such other address as such party may designate by ten days’ advance written notice to the other party:

If to the Company:

TheStreet, Inc.

14 Wall Street, 15th Floor

New York, New York 10005

Attention: Heather Mars, General Counsel

Facsimile: (212) 321-5015

Email: heather.mars@thestreet.com

With a copy to (which shall not constitute notice to the Company):

Orrick, Herrington & Sutcliffe LLP

405 Howard Street

San Francisco, California 94105

Attention: Karen Dempsey

Facsimile: (415) 773-5759

Email: kdempsey@orrick.com

If to an Investor:

180 Degree Capital Corp.

7 N. Willow Street, Suite 4B

Montclair, New Jersey 07042

Attention: Daniel B. Wolfe

Facsimile: 973-746-4508

Email: Daniel@180degreecapital.com

With a copy to (which shall not constitute notice to the Investors):

Schulte Roth & Zabel LLP

1152 Fifteenth Street, NW, Suite 850

Washington, DC 20005

Attention: John J. Mahon

Facsimile: (202) 730-4520

Email: John.Mahon@srz.com

8.6            Expenses . Whether or not the Closing shall occur, all fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including accounting and legal fees shall be paid by the party incurring such expenses, except that, upon consummation of the transactions contemplated hereby, the Company shall pay up to $50,000 of the reasonable and documented out-of-pocket fees and expenses incurred by the Investors, including, without limitation, the reasonable and documented fees and expenses of counsel for the Investors.

8.7            Amendments and Waivers . Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investors. Any such amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any securities purchased under this Agreement at the time outstanding (including securities into which such securities have been converted or exchanged or for which such securities have been exercised) and each future holder of all such securities.

8.8            Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). To the extent permitted by applicable law and subject to the foregoing, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

8.9            Entire Agreement . This Agreement, including the Exhibits and the Disclosure Schedules, and the other Transaction Documents constitute the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof.

8.10          Further Assurances . The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.

8.11          Governing Law; Consent to Jurisdiction; Waiver of Jury Trial . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York applicable to contracts made in and to be performed in that state, without regard to the conflicts of law principles thereof, to the extent such principles would require or permit the application of the laws of another jurisdiction. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.

8.12         Indemnification . In consideration of each Investor’s execution and delivery of the Transaction Documents and acquiring the Shares thereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless each Investor and each other holder of the Shares and all of their stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “ Indemnitees ”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “ Indemnified Liabilities ”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, other than claims for indemnification within the scope of Section 6 of the Registration Rights Agreement, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Shares, or (iii) the status of such Investor or holder of the Shares as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents, except, in each case, with respect to any Indemnified Liabilities that resulted solely from any Indemnitee’s gross negligence, willful misconduct or fraud. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 8.12 shall be the same as those set forth in Section 6 of the Registration Rights Agreement.

[signature page follows]

IN WITNESS WHEREOF, the parties have executed this Securities Purchase Agreement or caused their duly authorized officers to execute this Securities Purchase Agreement as of the date first above written.

[Signature Page to TheStreet, Inc. Securities Purchase Agreement]

[Signature Page to TheStreet, Inc. Securities Purchase Agreement]

Exhibit B

Registration Rights Agreement

[To be attached]

These are the “Disclosure Schedules” referred to in the Securities Purchase Agreement dated as of November 10, 2017 (the “ Agreement ”) among TheStreet, Inc., a Delaware corporation, and each of the Persons listed as an Investor on the Schedule of Investors attached as Schedule I thereto. Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.

Schedule 4.1      Organization, Good Standing and Qualification .

Schedule 4.3       Capitalization .

As of November 10, 2017, and without giving effect to the transactions contemplated hereby or the TCV Exchange, the Company had:

2.            The transactions contemplated by the following:

a.             TCV Agreement.

b.             Employment Agreement dated as of November 8, 2017, between James J. Cramer and the Company (the “ Cramer Employment Agreement ”).

3.            Agreements with securityholders:

a.             TCV Agreement.

b.             Cramer Employment Agreement.

4.            Agreements with registration rights:

a.             TCV Agreement.

Schedule 4.8          No Material Adverse Change .

1.            The transactions contemplated by the following:

a.             TCV Agreement.

b.             Cramer Employment Agreement.

Schedule 4.14        Labor Matters .

1.            The following agreements:

a.             Cramer Employment Agreement.

Schedule 4.19        Brokers and Finders .

1.            The following agreements:

a.             Letter Agreement, dated September 11, 2017, between TheStreet, Inc. and Lake Street Capital Markets, LLC.

b.             Letter Agreement, dated November 7, 2017, between TheStreet, Inc. and B. Riley FBR, Inc.

Schedule 4.21        Transactions with Affiliates .

1.            The transactions contemplated by the following:

a.             Cramer Employment Agreement.

Exhibit 10.3 

Execution Version  

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “ Agreement ”) is made and entered into as of November 10, 2017, by and among TheStreet, Inc., a Delaware corporation (the “ Company ”), and the “Investors” named in that certain Securities Purchase Agreement, dated as of November 10, 2017 (the “ Purchase Agreement ”), by and among the Company and the Investors (as defined below). Capitalized terms used herein have the respective meanings ascribed thereto in the Purchase Agreement unless otherwise defined herein.

The parties hereby agree as follows:

1.           Certain Definitions .

As used in this Agreement, the following terms shall have the following meanings:

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

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

“ Common Stock ” means the Company’s common stock, par value $0.01 per share, and any securities into which such shares may hereinafter be reclassified.

“ Investors ” means the Investors identified in the Purchase Agreement and any Affiliate or permitted transferee of any Investor who is a subsequent holder of any Registrable Securities.

“ Prospectus ” means (i) any prospectus (preliminary or final) included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in Rule 405 under the 1933 Act.

“ Register ,” “ registered ” and “ registration ” refer to a registration made by preparing and filing a Registration Statement or similar document in compliance with the 1933 Act, and the declaration or ordering of effectiveness of such Registration Statement or document.

“ Registrable Securities ” means (i) the Shares and (ii) any other securities issued or issuable with respect to or in exchange for the Shares, whether by merger, charter amendment or otherwise; provided , that, a security shall cease to be a Registrable Security (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) upon (A) sale pursuant to a Registration Statement or Rule 144 under the 1933 Act or (B) such security becoming eligible for sale without restriction by the Investors pursuant to Rule 144 and without the requirement for the Company to be in compliance with Rule 144(c)(1).

“ Registration Statement ” means any registration statement, including, without limitation, any Additional Registration Statement (as defined below), of the Company filed under the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all material incorporated by reference in such Registration Statement.

“ SEC ” means the U.S. Securities and Exchange Commission.

2.             Registration .

(a)          Registration Statement . Promptly following the closing of the purchase and sale of the securities contemplated by the Purchase Agreement (the “ Closing Date ”) but no later than ninety (90) days after the Closing Date (the “ Filing Deadline ”), the Company shall prepare and file with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of the Registrable Securities provided that the Company undertakes to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form becomes available, and, subject to Section 3(a) hereof, the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC) covering the resale of the Registrable Securities. Subject to any SEC comments, such Registration Statement shall include the plan of distribution attached hereto as Exhibit A ; provided , however , that no Investor shall be named as an “underwriter” in the Registration Statement without such Investor’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Common Stock or other securities for the account of any other holder without the prior written consent of the Investors, except for the TCV Shares. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided in accordance with Section 3(c) to the Investors and their counsel prior to its filing or other submission. By 9:30 a.m. New York time on the second Business Day following the date the Registration Statement is declared effective by the SEC, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement.

(b)          Expenses . The Company will pay all expenses associated with effecting the registration of the Registrable Securities, including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws, listing fees, reasonable fees and expenses of one counsel to the Investors up to an aggregate of $10,000 and the Investors’ other reasonable expenses in connection with the registration (collectively, the “ Registration Expenses ”), but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals and stock transfer taxes with respect to the Registrable Securities being sold and legal expenses not included within the definition of Registration Expenses (collectively, the “ Selling Expenses ”).

(c)            Effectiveness .

(i)        The Company shall use commercially reasonable efforts to have the Registration Statement declared effective within the earliest of (x) one hundred twenty (120) days after the initial filing date of such Registration Statement, (y) one hundred twenty (120) days after the Filing Deadline and (z) the fifth (5th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be reviewed or will not be subject to further review (such date, the “ Effectiveness Deadline ”); provided, however, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.

(ii)       For not more than fifteen (15) consecutive days, provided the first day of any such period be at least five (5) days after the last day of any such prior period, or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may following the date a Registration Statement is declared effective by the SEC, suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “ Allowed Delay ”); provided , that the Company shall promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale, prior to the Investor’s receipt of the notice of an Allowable Delay and for which the Investor has not yet settled.

(d)          Rule 415; Cutback . If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the 1933 Act, requires any Investor to be named as an “underwriter” or otherwise requires the Company to limit the number of shares eligible to be registered on the Registration Statement, the Company shall use its best efforts to persuade the SEC that, as applicable, the offering contemplated by the Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415, that none of the Investors is an “underwriter” or that the number of shares the Company is eligible to register on the Registration Statement should not be so limited. The Investors shall have the right to participate or have their counsel participate in any meetings or discussions with the SEC regarding the SEC’s position and to comment or have their counsel comment on any written submission made to the SEC with respect thereto. No such written submission shall be made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s best efforts and compliance with the terms of this Section 2(d) , the SEC refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “ Cut Back Shares ”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “ SEC Restrictions ”); provided , however , that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor. Any cutback imposed on the Investors pursuant to this Section 2(d) shall be allocated among the Investors on a pro rata basis, unless the Investors otherwise agree in writing. In the event the Company amends the Registration Statement in accordance with the foregoing, the Company shall on the later of (i) the date sixty (60) days after the date substantially all of the Registrable Securities registered under the immediately preceding Registration Statement are sold and (ii) the date six (6) months from the date the immediately preceding Registration Statement filed with respect to the Registrable Securities is declared effective by the SEC (the “ Additional Filing Deadline ”), file additional Registration Statements (each, an “ Additional Registration Statement ”) successively trying to register on each such Additional Registration Statement the maximum number of remaining Registrable Securities until all remaining Registrable Securities not previously included in an effective Registration Statement has been registered with the SEC. The Company shall use commercially reasonable efforts to have each Additional Registration Statement declared effective by the Commission as soon as practicable, but in no event later than the earliest of (x) one hundred twenty (120) days after the initial filing date of the immediately preceding Registration Statement filed with respect to the Registrable Securities, (y) one hundred twenty (120) days after the Additional Filing Deadline and (z) the fifth (5th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the such Additional Registration Statement will not be reviewed or will not be subject to further review (such date, the “ Additional Effectiveness Deadline ”); provided, however, that if the Additional Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Additional Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business. By 9:30 a.m. New York time on the second Business Day following the date an Additional Registration Statement is declared effective by the SEC, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Additional Registration Statement.

(e)            Right to Underwritten Offering .

(i)        Upon written notice (a “ Demand Notice ”) on one occasion after the Registration Statement has been declared effective by the SEC, Investors owning a majority of the then-outstanding Registrable Securities registered thereon may request to sell all or any portion of such Registrable Securities in an underwritten offering that is registered pursuant to such Registration Statement (an “ Underwritten Shelf Takedown ”). The Demand Notice shall specify the approximate number of Registrable Securities to be offered in the Underwritten Shelf Takedown.

(ii)       The Investors holding the Registrable Securities included in such Demand Notice shall have the right to select the managing underwriter or underwriters to administer the offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the Company’s approval which shall not be unreasonably withheld, conditioned or delayed. Such Investors and the Company shall enter into an underwriting agreement in such customary form as shall have been negotiated and agreed to by the Company with the underwriter or underwriters selected for such underwriting.

(iii)      The Company shall not include in the Underwritten Shelf Takedown any securities that are not Registrable Securities. If the managing underwriter or underwriters for such Underwritten Shelf Takedown advise the Company in writing that in their opinion the number of Registrable Securities to be included in such Underwritten Shelf Takedown exceeds the number of Registrable Securities which can be sold in an orderly manner in such offering within a price range acceptable to the Investors holding a majority of the Registrable Securities requested to be included in the Underwritten Shelf Takedown, the Company shall include in such Underwritten Shelf Takedown the maximum number of Registrable Securities which in the opinion of such managing underwriters can be so sold, allocated pro rata, unless the Investors otherwise agree in writing, among the respective holders of such Registrable Securities on the basis of the number of Registrable Securities requested to be included therein by each such Investor.

(iv)      The Investors shall have the right to have any Underwritten Shelf Takedown initiated by them under Section 2(e)(i) terminated or withdrawn prior to the effectiveness thereof; provided , however , that the Investors shall pay all Selling Expenses incurred by the them in connection therewith and, unless such termination or withdrawal was effected by the Investors primarily (x) as a result of the Company taking, or failing to take, any action that would be reasonably expected to cause the Investors to effect such termination or withdrawal under this Section 2(e)(iv) or (y) because the lead managing underwriter(s) advise(s) the Company that the amount of Registrable Securities to be sold in such offering should be reduced pursuant to Section 2(e)(iii) by more than ten percent (10%) of the Registrable Securities to be included in such Underwritten Shelf Takedown, shall promptly reimburse to the Company any Registration Expenses incurred by the Company in connection therewith. If the Investors cause an Underwritten Shelf Takedown to be terminated or withdrawn in accordance with this Section 2(e)(iv) , they shall again be entitled to exercise their demand right pursuant to Section 2(e)(i) .

3.             Company Obligations . The Company will use commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the Company will, as expeditiously as possible: 

(a)         use commercially reasonable efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the earliest of (i) the date that is two (2) years after the date such Registration Statement is declared effective by the SEC, (ii) the date on which all Registrable Securities covered by such Registration Statement as amended from time to time, have been sold or otherwise disposed of pursuant to the Registration Statement or in a transaction in which the transferee receives freely tradable shares and (iii) the date on which the Registrable Securities no longer constitute “Registrable Securities” pursuant to the definition thereof (the “ Effectiveness Period ”), and advise the Investors in writing when the Effectiveness Period has expired;

(b)         prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the Effectiveness Period and to comply with the provisions of the 1933 Act and the 1934 Act with respect to the distribution of all of the Registrable Securities covered thereby and, in the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement;

(c)         provide copies to and permit counsel designated by the Investors to review each Registration Statement and all amendments and supplements thereto no fewer than five (5) Business Days prior to their filing with the SEC and not file with the SEC any such document or request the acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto to which such counsel reasonably objects;

(d)         furnish to the Investors and their legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company (but not later than two (2) Business Days after the filing date, receipt date or sending date, as the case may be) one (1) copy of any Registration Statement and any amendment thereto, each Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion thereof which contains information for which the Company has sought confidential treatment), and (ii) such number of copies of a Prospectus and all amendments and supplements thereto and such other documents as each Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor that are covered by the related Registration Statement;

(e)         use commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such order at the earliest possible moment;

(f)          prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify, or cooperate with the Investors and their counsel in connection with the registration or qualification of, unless an exemption from registration or qualification applies, such Registrable Securities for offer and sale under the securities or blue sky laws of all applicable jurisdictions in the United States and do any and all other commercially reasonable acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided , however , that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f) , (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3(f) , or (iii) file a general consent to service of process in any such jurisdiction;

(g)         use commercially reasonable efforts to cause all Registrable Securities covered by a Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed;

(h)         promptly notify the Investors, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and prepare, file with the SEC and furnish to such holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. By 9:30 a.m. New York time on the second Business Day following the date any post-effective amendment has become effective, the Company shall file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement;

(i)          otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act, including, without limitation, Rule 172 under the 1933 Act, file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to Rule 424 under the 1933 Act, promptly inform the Investors in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Investors are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make generally available (within the meaning of Rule 158 under the 1933 Act) to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earnings statement covering a period of at least twelve (12) months, beginning after the effective date of each Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for the purpose of this subsection 3(i) , “ Availability Date ” means the 45th day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “ Availability Date ” means the 90th day after the end of such fourth fiscal quarter);

(j)          with a view to making available to the Investors the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investors to sell shares of Common Stock to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable Securities may be sold without restriction by the holders thereof pursuant to Rule 144 or any other rule of similar effect and without the requirement for the Company to be in compliance with Rue 144(c)(1) and (B) such date as all of the Registrable Securities shall have been resold pursuant to a Registration Statement, Rule 144 or otherwise in a transaction in which the transferee receives freely tradable shares; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the 1934 Act; and (iii) furnish to each Investor upon request, as long as such Investor owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the 1934 Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail such Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration;

(k)         if reasonably requested by an Investor, as soon as practicable after receipt of notice from such Investor (i) incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to be included therein, but only as to which information counsel to the Company agrees (which agreement shall not be unreasonably withheld, conditioned or delayed), relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement or Prospectus contained therein if reasonably requested by an Investor holding any Registrable Securities;

(l)          deliver, within three (3) Business Days after a Registration Statement which covers Registrable Securities is declared effective by the SEC, and cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC; and

(m)        in the event that the Registrable Securities are being offered in an Underwritten Shelf Takedown, (i) furnish to the Investors participating in such offering and to the underwriters of the Registrable Securities being offered such reasonable number of copies of the Registration Statement, Prospectuses and such other documents as such underwriters may reasonably request in order to facilitate the public offering of such securities; (ii) enter into and perform its obligations under an underwriting agreement in connection with an Underwritten Shelf Takedown and participate and cooperate with the underwriters in connection with any road show or marketing activities customary for an underwritten public offering; and (iii) use reasonable best efforts to furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, (A) an opinion, dated as of such date, of the legal counsel representing the Company (which may be in-house counsel, if acceptable to the managing underwriters selected for such Underwritten Shelf Takedown) for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters and such Investors, and (B) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters and such Investors.

4.             Due Diligence Review; Information . The Company shall make available, during normal business hours, upon reasonable advance notice, for inspection and review by the Investors, advisors to and representatives of the Investors (who may or may not be affiliated with the Investors and who are reasonably acceptable to the Company) or underwriters participating in an Underwritten Shelf Takedown, all financial and other records, all SEC Filings (as defined in the Purchase Agreement) and other filings with the SEC, and all other corporate documents and properties of the Company as may be reasonably necessary for the purpose of such review, and cause the Company’s officers, directors and employees, within a reasonable time period, to supply all such information reasonably requested by the Investors or any such representative, advisor or underwriter in connection with such Registration Statement (including, without limitation, in response to all questions and other inquiries reasonably made or submitted by any of them), prior to and from time to time after the filing and effectiveness of the Registration Statement for the sole purpose of enabling the Investors and such representatives, advisors and underwriters and their respective accountants and attorneys to conduct initial and ongoing due diligence with respect to the Company and the accuracy of such Registration Statement.

The Company shall not disclose any Confidential Information (as defined in the Purchase Agreement) or material nonpublic information to the Investors, or to advisors to or representatives of the Investors, or to underwriters participating in an Underwritten Shelf Takedown unless prior to disclosure of such information the Company identifies such information as being Confidential Information or material nonpublic information or both and provides the Investors, such advisors and representatives and such underwriters with the opportunity to accept or refuse to accept such information for review and any such Investor, advisor, representative or underwriter wishing to obtain such information enters into an appropriate confidentiality agreement with the Company with respect thereto.

5.              Obligations of the Investors .

(a)         Each Investor shall furnish in writing to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5) Business Days prior to the first anticipated filing date of any Registration Statement, the Company shall notify each Investor of the information the Company requires from such Investor if such Investor elects to have any of the Registrable Securities included in the Registration Statement. An Investor shall provide such information to the Company at least two (2) Business Days prior to the first anticipated filing date of such Registration Statement if such Investor elects to have any of the Registrable Securities included in the Registration Statement.

(b)         Each Investor, by its acceptance of the Registrable Securities agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Investor has notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.

(c)         Each Investor agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an event pursuant to Section 3(h) hereof, such Investor will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities, until the Investor is advised by the Company that such dispositions may again be made.

(d)         No Investor may participate in an Underwritten Shelf Takedown hereunder unless such Investor (i) agrees to sell such Investor’s Registrable Securities on the basis provided in any underwriting arrangements in customary form entered into pursuant to this Agreement and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided that no Investor proposed to be included in any Underwritten Shelf Takedown shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding (1) such Investor’s ownership of its Registrable Securities to be sold or transferred, (2) such Investor’s power and authority to effect such transfer and (3) such matters pertaining to compliance with securities laws as may be reasonably requested, including as to possessing no non-public information about the Company that is the basis upon which such sale is being made) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 6(b) hereof, or to the underwriters with respect thereto, except to the extent of the indemnification being given to the Company and its controlling persons in Section 6(b) hereof.

6.           Indemnification .

(a)          Indemnification by the Company . The Company will indemnify and hold harmless each Investor and its officers, directors, members, managers, partners, trustees, employees and agents, successors and assigns, and each other person, if any, who controls such Investor within the meaning of the 1933 Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement or omission or alleged omission of any material fact contained in any Registration Statement, any Prospectus, or any amendment or supplement thereof; (ii) any blue sky application or other document executed by the Company specifically for that purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof (any such application, document or information herein called a “ Blue Sky Application ”); (iii) the omission or alleged omission to state in a Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iv) any violation or alleged violation by the Company or its agents of any rule or regulation promulgated under the 1933 Act or any state securities law applicable to the Company or its agents and relating to action or inaction required of the Company in connection with such registration, and will reimburse such Investor, and each such officer, director or member and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Investor or any such controlling person in writing specifically for use in such Registration Statement or Prospectus.

(b)          Indemnification by the Investors . Each Investor agrees, severally but not jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors, officers, employees, stockholders and each person who controls the Company (within the meaning of the 1933 Act) against any losses, claims, damages, liabilities and expense (including reasonable attorney fees) resulting from any untrue statement of a material fact or any omission of a material fact required to be stated in the Registration Statement or Prospectus or amendment or supplement thereto or necessary to make the statements therein not misleading, to the extent, but only to the extent that such untrue statement or omission is contained in any information furnished in writing by such Investor to the Company specifically for inclusion in such Registration Statement or Prospectus or amendment or supplement thereto. In no event shall the liability of an Investor be greater in amount than the dollar amount of the net proceeds received by such Investor upon the sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification obligation.

(c)          Conduct of Indemnification Proceedings . Any person entitled to indemnification hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses, or (b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based upon written advice of its counsel, a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and provided , further , that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the indemnifying party in the defense of any such claim or litigation. It is understood that the indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all such indemnified parties. No indemnifying party will (i), except with the consent of the indemnified party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation and (ii) be liable for any settlement entered into without the indemnifying party’s prior written approval, such approval not to be unreasonably conditioned, withheld or delayed.

(d)          Contribution . If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. No person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution from any person not guilty of such fraudulent misrepresentation. In no event shall the contribution obligation of a holder of Registrable Securities be greater in amount than the dollar amount of the net proceeds received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.

7.              Miscellaneous .

(a)          Amendments and Waivers . Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investors.

(b)          Notices . All notices and other communications provided for or permitted hereunder shall be made as set forth in Section 8.5 of the Purchase Agreement.

(c)          Assignments and Transfers by Investors . The provisions of this Agreement shall be binding upon and inure to the benefit of the Investors and their respective successors and assigns. An Investor may transfer or assign, in whole or from time to time in part, to one or more persons its rights hereunder in connection with the transfer of Registrable Securities by such Investor to such person, provided that such Investor complies with all laws applicable thereto, the terms and conditions of the Purchase Agreement applicable thereto and provides written notice of assignment to the Company promptly after such assignment is effected.

(d)          Assignments and Transfers by the Company . This Agreement may not be assigned by the Company (whether by operation of law or otherwise) without the prior written consent of the Investors; provided , however , that in the event that the Company is a party to a merger, consolidation, share exchange or similar business combination transaction in which the Common Stock is converted into the equity securities of another Person, from and after the effective time of such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Company hereunder, the term “Company” shall be deemed to refer to such Person and the term “Registrable Securities” shall be deemed to include the securities received by the Investors in connection with such transaction unless such securities are otherwise freely tradable by the Investors after giving effect to such transaction.

(e)          Benefits of the Agreement . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

(f)           Counterparts; Faxes . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be delivered via facsimile or other form of electronic communication, which shall be deemed an original.

(g)          Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

(h)          Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).. To the extent permitted by applicable law and subject to the foregoing, the parties hereby waive any provision of law which renders any provisions hereof prohibited or unenforceable in any respect.

(i)           Further Assurances . The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.

(j)           Entire Agreement . This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

(k)          Governing Law; Consent to Jurisdiction; Waiver of Jury Trial . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York applicable to contracts made in and to be performed in that state, without regard to the conflicts of law principles thereof, to the extent such principles would require or permit the application of the laws of another jurisdiction. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.

[signature page follows]

IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement or caused their duly authorized officers to execute this Registration Rights Agreement as of the date first above written.

[Signature Page to TheStreet, Inc. Registration Rights Agreement]  

[Signature Page to TheStreet, Inc. Registration Rights Agreement]  

Exhibit A

Plan of Distribution

The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.

The selling stockholders may use any one or more of the following methods when disposing of shares or interests therein:

The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.

The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that they meet the criteria and conform to the requirements of that rule.

The selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act.

To the extent required, the shares of our common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.

In order to comply with the securities laws of some states, if applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.

We have advised the selling stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of the selling stockholders and their affiliates. In addition, to the extent applicable we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.

We have agreed to indemnify the selling stockholders against liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the shares offered by this prospectus.

We have agreed with the selling stockholders to keep the registration statement of which this prospectus constitutes a part effective until the earliest of (i) the date that is two (2) years after the date such registration statement has been declared effective by the SEC, (ii) the date that such securities become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 and certain other conditions have been satisfied and (iii) the date on which all of the securities have been sold or otherwise disposed of pursuant to the registration statement of which this prospectus forms a part or in a transaction in which the transferee receives freely tradable shares.