EFTA01083921

PWRW&G Draft 8/8/14 ASSET PURCHASE AGREEMENT by and among ARSP LLC, AS ACQUISITION LLC and ARTSPACE MARKETPLACE, INC. Dated as of August 8, 2014 DeeN: USI:9538113r5 EFTA01083921 ASSET PURCHASE AGREEMENT AGREEMENT, dated as of August 8, 2014 (this "Agreement"), by and among ARSP LLC, a Delaware limited liability company ("Parent"), AS Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent ("Buyer"), and Artspace Marketplace, Inc., a Delaware corporation (the "Company"). RECITALS The board of directors of the Company has approved and declared advisable this Agreement and the sale of substantially all of the assets and liabilities of the Company to Buyer upon the terms and subject to the conditions set forth in this Agreement. Accordingly, in consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement, the parties to this Agreement, intending to be legally bound, agree as follows: ARTICLE I THE SALE Section 1.1 The Sale. Upon the terms and subject to the conditions set forth in this Agreement, upon the Closing contemplated below (a) the Company shall sell, transfer and assign to Buyer all of its Assets except the Excluded Assets, and Buyer shall assume from the Company all of the Assumed Liabilities (together, the "Sale"), and (b) Buyer shall pay to the Company, as consideration for the Sale, $4.25 million, payable in cash as provided below (the "Consideration"). As used in this Agreement, (a) "Assets" means all of the Company's right, title and interest in assets (including inventory, equipment, supplies and other personal property), properties (including Intellectual Property), whether real, personal or mixed, tangible and intangible, of every kind and description, whether or not reflected on the books and records of the Company and wherever located, and (without limiting the foregoing) including the contracts and agreements listed on Exhibit A (the "Assumed Contracts"), all accounts receivable as of the Closing Date, all customer lists, all books and records (financial and otherwise) relating the foregoing; (b) "Intellectual Property" means (x) all patents, trademarks, copyrights, trade secrets, software (including the artspace.com URL, source code, object code and documentation related thereto) and internet assets; (y) all licenses, sublicenses and other agreements or permissions related to the property or rights described in clause (x); and (z) all rights to sue at law or in equity for any infringement or other impairment of any of the property or rights described in clause (x), including the right to collect damages and proceeds therefrom; in each case as used in connection with or otherwise related to the business of the Company and as such property and rights exist in all jurisdictions throughout the world, to the extent owned by, licensed to, or otherwise used by the Company (and, for the avoidance of doubt, including all rights in respect of the Company's name); 1 Dad!: UM:95381B,6 EFTA01083922 (c) "Excluded Assets" means (u) cash and cash equivalents of the Company, (v) claims or rights for tax refunds, estimated tax payments or prepayments, (w) all rights under or in respect of the insurance policies and claims thereunder, (x) all rights under or in respect of this Agreement, (y) corporate minute books, stock transfer books and similar records of the Company, and tax records and other records which the Company is required by law to retain (except that Buyer shall be entitled to a copy thereof if and to the extent it may be useful to its operation of the business following the Closing Date) and (z) documents that relate to the Company's corporate existence, this Agreement and/or the Sale; and (d) "Assumed Liabilities" means (x) all obligations under the Assumed Contracts, excluding payment obligations that in accordance with the applicable Assumed Contract were due and payable prior to the Closing Date (unless expressly assumed hereinafter), (y) other accounts payable arising in the ordinary course of business of the Company after June 30, 2014, except for accounts payable that were due and payable prior to the Closing Date (unless expressly assumed hereinafter), and (z) other Assumed Liabilities listed on Exhibit A; provided, that the total of all Assumed Liabilities shall not in any event exceed $500,000. For the avoidance of doubt, Assumed Liabilities do not include (A) any liabilities of the Company for income or other taxes or any liabilities for taxes for any period (or portion thereof) ending on or before the Closing Date, (B) any obligations arising under or in connection with the negotiation, preparation and performance of this Agreement and the Sale (except for transfer taxes arising as a result thereof), (C) any obligations or liabilities to lenders to the Company or any of the holders of its shares of common or preferred stock (in each case in their capacity as such), (D) any obligations or liabilities (including severance payments) of the Company associated with the services of employees of the Company rendered prior to the Closing, including any severance costs associated with any employees of the Company that do not become employees of Buyer in accordance with Section 4.8, (E) any liabilities in relation to any suits, actions or proceedings that are pending or have been threatened in writing as of the Closing (of which none have been disclosed to Buyer) and (F) liabilities covered by the Company's insurance policies. Section 1.2 Closing. Subject to the satisfaction or waiver of all of the conditions to closin contained in ARTICLE V, the closing of the Sale (the "Closing") shall take place (a) at 10:00 M. on August 14, 2014, provided that the conditions (other than any conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived in accordance with this Agreement by such date, or (b) at such other time or on such other date as Parent and the Company may agree. The date on which the Closing occurs is referred to as the "Closing Date." At the Closing, (1) Buyer shall assume all of the Company's rights and obligations under the Assumed Contracts pursuant to a bill of sale and assignment and assumption agreement in form to be agreed (a "Bill of Sale") and (2) the other Assets shall be sold, conveyed, transferred, assigned and delivered pursuant to the Bill of Sale. Buyer will pay all sales, transfer, or other similar tax, if any, due in connection with the Sale of the Assets to Buyer under this Agreement. Buyer understands that any inventory, Assets, and business of the Company is transferred "as is", "where is" and without any other representation or warranty of any nature whatsoever, except as provided below. Section 1.3 Deposit. On the date hereof, Buyer shall pay a cash deposit of $500,000 (the "Deposit") to Pillsbury Winthrop Shaw Pittman LLP (the "Escrow Agent"), which 2 Dad!: USI:95311113r5 EFTA01083923 will separately agree with each of the parties to this Agreement to hold and dispose of the Deposit in accordance with the terms of this Agreement. At the Closing, the Deposit shall be released by the Escrow Agent and used to pay the Consideration in accordance with Section 1.4. Section 1.4 Payment of Consideration.. Upon the Closing: (a) the Escrow Agent shall release the Deposit to the Company; and (b) Buyer shall pay the Company the balance of the Consideration by wire transfer of immediately available funds. Section 1.5 Application of Consideration to Discharge Debt. On the Closing Date the Company shall pay to each of the creditors listed on Exhibit B the amount necessary to discharge the Company's indebtedness to each such creditor in full. Section 1.6 Allocation of Consideration. The Consideration shall be allocated among the Assets other than the Excluded Assets in a manner to be determined by Buyer. The Company and Buyer agree to use the allocations determined pursuant to this Section 1.6 for all tax purposes, including without limitation, those matters subject to Section 1060 of the Code, as amended, and the regulations thereunder. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to Parent and Buyer that: Section 2.1 Organization and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. The Company has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now conducted. Section 2.2 Corporate Authorization. The Company has all necessary corporate power and authority to enter into this Agreement and, subject to adoption of this Agreement by the affirmative vote of (i) the holders of a majority of the outstanding shares of the Company (common stock, Series A preferred stock and Series B preferred stock voting together as a class), (ii) the holders of a majority of the outstanding common stock, (iii) the holders of a majority of the outstanding shares of the Series A preferred stock and Series B preferred stock, voting together as a single class, and (iv) the holders of a majority of the outstanding shares of the Series B preferred stock (collectively, the "Requisite Company Votes"), to consummate the Sale and other transactions contemplated by this Agreement. (a) The board of directors of the Company has unanimously adopted resolutions: (i) approving and declaring advisable the Sale, this Agreement and the transactions contemplated by this Agreement; (ii) declaring that it is in the best interests of the stockholders of the Company that the Company enters into this Agreement and consummate the Sale upon the terms and subject to the conditions set forth in this Agreement; (iii) directing that adoption of this 3 Doell: USI:95311113r5 EFTA01083924 Agreement be submitted to a vote at a meeting of the stockholders of the Company; and (iv) recommending to the stockholders of the Company that they adopt this Agreement. (b) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company, subject to the Requisite Company Votes. Section 2.3 Enforceability. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. Section 2.4 Liabilities. Exhibit B sets forth a true and complete list of all outstanding indebtedness of the Company, including the name of the creditor and amount required to be paid by the Company to discharge such indebtedness in full upon the Closing. To the knowledge of the Company, there are no material liabilities or obligations of any kind, whether accrued, contingent or otherwise (collectively, "Liabilities") of the Company, other than the indebtedness set forth on Exhibit B, Liabilities reflected in, reserved against or disclosed in the consolidated balance sheet of the Company as of June 30, 2014, executory obligations under contracts and other Liabilities arising in the ordinary course of business of the Company after such date. Section 2.5 Voting. The Requisite Company Votes are the only votes of the holders of any class or series of the capital stock of the Company necessary (under the Company organizational documents, the DGCL, other applicable laws or otherwise) to approve and adopt this Agreement, the Sale and the other transactions contemplated by this Agreement. Section 2.6 No Other Representations and Warranties. Except for the representations and warranties contained in this Article II (including the related portions of the Exhibit B), neither the Company nor any other person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of the Company, including any representation or warranty as to the accuracy or completeness of any information regarding the Assets furnished or made available to Buyer and its representatives or as to the future revenue, profitability or success of the Business, or any representation or warranty arising from statute or otherwise in law. ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT Parent represents and warrants to the Company that: Section 3.1 Organization and Power. Each of Parent and Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. Each of Parent and Buyer has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now conducted. 4 DeeN: USI:95311113r5 EFTA01083925 Section 3.2 Corporate Authorization. Each of Parent and Buyer has all necessary corporate power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery and performance of this Agreement by each of Parent and Buyer and the consummation by each of Parent and Buyer of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of Parent and Buyer. Section 3.3 Enforceability. This Agreement has been duly executed and delivered by each of Parent and Buyer and constitutes a legal, valid and binding agreement of each of Parent and Buyer, enforceable against each of them in accordance with its terms. Section 3.4 Sufficiency of Funds. Buyer has sources of immediately available funds to enable it to make payment of the Consideration and consummate the transactions contemplated by this Agreement. Section 3.5 Independent Investigation. Each of Parent and Buyer have conducted their own independent investigation, review and analysis of the Assets, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company for such purpose. Parent and Buyer acknowledge and agree that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Parent and Buyer have relied solely upon their own investigation and the express representations and warranties of the Company set forth in Article II of this Agreement; and (b) neither the Company nor any other Person has made any representation or warranty as to the Company, the Assets or this Agreement, except as expressly set forth in Article II of this Agreement. ARTICLE IV COVENANTS Section 4.1 Public Announcements. Buyer and the Company shall consult with each other before issuing any press release or otherwise making any public statements about this Agreement or any of the transactions contemplated by this Agreement. Neither Buyer nor the Company shall issue any such press release or make any such public statement prior to such consultation, except to the extent required by applicable laws, in which case that party shall use its reasonable commercial efforts to consult with the other party before issuing any such release or making any such public statement. Section 4.2 Fees, Costs and Expenses. Whether or not the Sale is consummated, all expenses (including those payable to representatives) incurred by any party to this Agreement or on its behalf in connection with this Agreement and the transactions contemplated by this Agreement ("Expenses") shall be paid by the party incurring those Expenses, except as otherwise provided in Section 6.5. Section 4.3 Interim Operations. From the date of this Agreement through the Closing Date, the Company will continue to operate its business in the ordinary course, and shall 5 DeeN: USI:95311113r5 EFTA01083926 (without limiting the foregoing) apply all cash on hand and received to pay its expenses (including payroll and related taxes) in the ordinary course. Section 4.4 Change of Corporate Name. Promptly following the Closing the Company shall change its name to a corporate name not including the word "ArtSpace" or any variation thereof. Section 4.5 Payments Received after Closing. If and to the extent that on or after the Closing the Company receives payment under or in respect of any accounts receivable, Assumed Contracts, or other Assets transferred to Buyer hereunder, the Company will hold such amounts in trust for Buyer's account and promptly forward such amounts to Buyer's bank account (as notified to the Company from time to time). Section 4.6 Books and Records. In order to facilitate the resolution of any claims made against or incurred by the Company prior to the Closing, or for any other reasonable purpose, for a period of two (2) years after the Closing, Buyer shall: (a) retain the books and records (including personnel files) relating to periods prior to the Closing in a manner reasonably consistent with the prior practices of the Company; and (b) upon reasonable notice, afford the Company's representatives reasonable access (including the right to make, at the Company's expense, photocopies), during normal business hours, to such books and records. In order to facilitate the resolution of any claims made by or against or incurred by Parent or Buyer after the Closing, or for any other reasonable purpose, for a period of two (2) years after the Closing, the Company shall: (c) retain the books and records (including personnel files) of the Company which relate to the Assets, Assumed Liabilities and its operations for periods prior to the Closing; and (d) upon reasonable notice, afford the Buyer's representatives reasonable access (including the right to make, at Buyer's expense, photocopies), during normal business hours, to such books and records. Neither Parent nor Buyer, on the one hand, nor Seller, on the other hand, shall be obligated to provide the other party/ies with access to any books or records (including personnel files) pursuant to this Section 4.6 where such access would violate any law. Section 4.7 Bulk Sales Laws. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Assets to Buyer. Section 4.8 Employees. The Buyer shall deliver to each of the employees of the Company listed on Exhibit C an employment offer letter on terms no less favorable than those in place with the Company as of the date hereof. 6 Dad!: USI:95311113r5 EFTA01083927 Section 4.9 Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the other transaction documents. Section 4.10 Orderly Wind-down of the Company. Following the Closing, the Buyer and its affiliates will provide reasonable administrative support to the Company in connection with the Company's wind-down of operations, discharge of obligations and liquidation, at no charge to the Company, and will also pay one-half of the legal expenses associated with such wind-down and liquidation (such one-half not to exceed $12,500). ARTICLE V CONDITIONS Section 5.1 Conditions to Each Party's Obligation to Effect the Sale. The obligation of each party to this Agreement to effect the Sale is subject to the satisfaction or waiver on or prior to the Closing Date of the condition that this Agreement shall have been duly adopted by the Requisite Company Votes. Section 5.2 Conditions to Obligations of Buyer. The obligations of Buyer to effect the Sale are also subject to the satisfaction (or waiver by Buyer) on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects, as though made on and as of the Closing Date. (b) Performance of Obligations. The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. (c) Officer's Certificate. Buyer shall have received a certificate, signed by the chief executive officer of the Company, certifying as to the matters set forth in Section 5.2(a) and Section 5.2(b). (d) FIRPTA Certificate. Parent shall have received a certificate stating that the Company is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended, which certificate shall set forth all information required by, and otherwise be executed in accordance with, Treasury Regulations Section 1.1445-2(b)(2). Section 5.3 Frustration of Closing Conditions. None of the parties to this Agreement may rely on the failure of any condition set forth in this ARTICLE V to be satisfied if such failure was caused by such party's failure to use commercially reasonable efforts to consummate the Sale and the other transactions contemplated by this Agreement. 7 DeeN: UM:9538'713,6 EFTA01083928 ARTICLE VI TERMINATION AND WAIVER Section 6.1 Termination by Mutual Consent. This Agreement may be terminated at any time prior to the Closing by mutual written consent of Buyer and the Company. Section 6.2 Termination by Either Buyer or the Company. This Agreement may be terminated by either Buyer or the Company by written notice at any time prior to the Closing: (a) if the Sale has not been consummated by the close of business on August 15, 2014, except that the right to terminate this Agreement under this clause shall not be available to any party to this Agreement whose failure to fulfill any of its obligations has been a principal cause of, or resulted in, the failure to consummate the Sale by such date; (b) if the Requisite Company Votes have not been obtained; or (c) if any law or court order prohibits consummation of the Sale. Section 6.3 Termination by Buyer. This Agreement may be terminated by Buyer by written notice at any time prior to the Closing if: (a) the Company breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 5.2(a) or Section 5.2(b) and (ii) has not been cured by the Company within 2 business days after the Company's receipt of written notice of such breach from Buyer; or (b) Buyer's due diligence review of the Company and its business reveals, prior to Closing, that any of the Company's database, assets and liabilities, or technology platform materially and adversely differs from what has been represented in writing to Buyer in the information listed on Exhibit D, taken as a whole. Section 6.4 Effect of Termination. If this Agreement is terminated pursuant to this 0, it shall be of no further force and effect, with no liability on the part of any party to this Agreement (or any stockholder, director, officer, employee, agent or representative of such party), except that (a) if such termination results from the willful (i) failure of any party to perform its obligations or (ii) breach by any party of its representations or warranties contained in this Agreement, then such party shall be liable for any liabilities incurred or suffered by the other parties as a result of such failure or breach; and (b) Section 4.2, this Section 6.4, Section 6.5 and ARTICLE VII of this Agreement shall survive any termination of this Agreement. Section 6.5 Expenses and Deposit Following Termination. Except as set forth in this Section 6.5 and Section 1.2, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 4.2. The Escrow Agent shall release the Deposit: 8 Dad!: USI:95311113r5 EFTA01083929 (a) to the Company if this Agreement is validly terminated by the Company pursuant to Section 6.2(a) as a result of a material breach of this Agreement by Buyer; or (b) to Buyer if this Agreement is validly terminated pursuant to Section 6.1, Section 6.2(b), Section 6.2(c) or Section 6.3 or validly terminated by Buyer pursuant to Section 6.2(a). Section 6.6 Extension; Waiver. At any time prior to the Closing, Parent and Buyer, on the one hand, and the Company, on the other hand, may (a) extend the time for the performance of any of the obligations of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered under this Agreement or, (c) subject to applicable laws, waive compliance with any of the covenants or conditions contained in this Agreement. Any agreement on the part of a party to any extension or waiver shall be valid only if set forth in an instrument in writing signed by such party. The failure of any part to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights. ARTICLE VII MISCELLANEOUS Section 7.1 Interpretation. Headings in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. Definitions shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references in this Agreement to Articles, Sections and Exhibits shall refer to Articles and Sections of, and Exhibits to, this Agreement unless the context shall require otherwise. The words "include," "includes" and "including" shall not be limiting and shall be deemed to be followed by the phrase "without limitation." Unless the context shall require otherwise, any agreements, documents, instruments or laws defined or referred to in this Agreement shall be deemed to mean or refer to such agreements, documents, instruments or laws as from time to time amended, modified or supplemented, including (a) in the case of agreements, documents or instruments, by waiver or consent and (b) in the case of laws, by succession of comparable successor statutes. All references in this Agreement to any particular law shall be deemed to refer also to any rules and regulations promulgated under that law. References to a person also refer to its predecessors and permitted successors and assigns. Section 7.2 Survival. None of the representations and warranties contained in this Agreement or in any instrument delivered under this Agreement shall survive the Closing. This Section 7.2 shall not limit any covenant or agreement of the parties to this Agreement which, by its terms, contemplates performance after the Closing. Section 7.3 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. 9 DeeN: USI:9538113r5 EFTA01083930 Section 7.4 Submission to Jurisdiction. The parties to this Agreement (a) irrevocably submit to the personal jurisdiction of the federal courts of the United States of America and the courts of the State of New York located in the New York County, New York and (b) waive any claim of improper venue or any claim that those courts are an inconvenient forum. The parties to this Agreement agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 7.6 or in such other manner as may be permitted by applicable laws, shall be valid and sufficient service thereof. Section 7.5 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which 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 legal action 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 a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 7.5. Section 7.6 Notices. Any notice, request, instruction or other communication under this Agreement shall be in writing and delivered by hand or overnight courier service or by facsimile or email: If to Parent or Buyer, to: ARSP LLC do Elysium Management 445 Park Avenue, Suite 1401 New York, NY 10022 Facsimile: 1 Attention: Keith Fox & Eileen Alexanderson email: with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 Facsimile: 1 Attention: David K. Lakhdhir email: If to the Company, to: Artspace Marketplace, Inc. 75 Broad Street, 26th Floor 10 DeeN: UM:9538'713,6 EFTA01083931 New York, NY 10004 Facsimile: [number to be inserted Attention: Catherine Levene email: [address to be inserted] with a copy to: Pillsbury Winthrop Shaw Pittman LLP 1540 Broadway New York, NY 10036 Facsimile: Attention: Ronald A. Fleming, Jr. email: or to such other persons, addresses or facsimile numbers or email addresses as may be designated in writing by the person entitled to receive such communication as provided above. Each such communication shall be effective (a) if delivered by hand, when such delivery is made at the address specified in this Section 7.6, (b) if delivered by overnight courier service, the next business day after such communication is sent to the address specified in this Section 7.6, or (c) if delivered by facsimile or email, when such facsimile or email is transmitted to the facsimile number or email addressed specified in this Section 7.6 and appropriate confirmation is received. Section 7.7 Entire Agreement. This Agreement (including the Exhibits to this Agreement) constitutes the entire agreement and supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties to this Agreement with respect to the subject matter of this Agreement. No representation, warranty, inducement, promise, understanding or condition not set forth in this Agreement has been made or relied upon by any of the parties to this Agreement. Section 7.8 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of that provision to any person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted for that provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b) the remainder of this Agreement and the application of that provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of that provision, or the application of that provision, in any other jurisdiction. Section 7.9 Rules of Construction. The parties to this Agreement have been represented by counsel during the negotiation and execution of this Agreement and waive the application of any laws or rule of construction providing that ambiguities in any agreement or other document shall be construed against the party drafting such agreement or other document. Section 7.10 Assignment. This Agreement shall not be assignable by operation of law or otherwise. 11 Dad!: USI:95311113r5 EFTA01083932 Section 7.11 Remedies. Except as otherwise provided in this Agreement, any and all remedies expressly conferred upon a party to this Agreement shall be cumulative with, and not exclusive of, any other remedy contained in this Agreement, at law or in equity. The exercise by a party to this Agreement of any one remedy shall not preclude the exercise by it of any other remedy. Section 7.12 Specific Performance. The parties to this Agreement agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties to this Agreement shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. Section 7.13 Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, all of which shall be one and the same agreement. This Agreement shall become effective when each party to this Agreement shall have received counterparts signed by all of the other parties. Section 7.14 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. [signature page follows] 12 DeeN: UM:9538'713,6 EFTA01083933 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above. ARSP LLC By: Name: Keith Fox Title: Manager AS ACQUISITION LLC By: Name: Keith Fox Title: Manager ARTSPACE MARKETPLACE, INC. By: Name: Catherine Levene Title: President and CEO 13 DeeN: USI:9538113r5 EFTA01083934 Exhibit A: Assumed Contracts Catherine to advise which of the following should NOT be assigned COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT I. ADVISOR AGREEMENTS 1. Maria Baibakova October 13, 2012 2. Jeanne Greenberg-Rohatyn February 7, 2011 3- Alia Al-Senussi September 24, 2013 4. Carmen Busquets April 7, 2014 5. Dr, Dana Ardi September 24, 2013 6- Dana Zucker October 25, 2011 7. David Rosenblatt June 29, 2011 8. Jonathan Blue July 25, 2011 9- Metamorphic Ventures, LLC December 19, 2011 10- Tom Cohen January 7, 2011 1I- Zorba Lieberman September 25, 2012 H. CONSULTING CONTRACTS 12. DecisionCFO LLC June 18, 2014 13. Sparring Partners Capital LLC July 21, 2014 14. DecisionCFO LLC August 24, 2013 15- Form — Standard Consulting Agreement Undated 16. Dana Gertz January 10, 2013 17- Colins Hynes July 26, 2011 18. Sparring Partners Capital LLC February 18, 2014 14 Doe: USI:9538713v5 EFTA01083935 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 19. iTechArt Group July 8, 2013 20. Laura J Folco May 21, 2012 21- Sean Smith June II, 2013 22. Shulman Fleming & Partners November t0, 2010 III.EDITORIAL CONTRACTS 23. Ashton Cooper September 27, 2012 24. Chloe Wynn March 12, 2012 25- Ian Wallace March 3, 2014 26. Katherine Wolf March 7, 2013 27- Noelle Bodick January 20, 2014 28. Rebekah Huber January 6, 2012 29. Sara Blazej July 23, 2012 30. Sarah Dickerson April 2, 2012 31- Shiyin Lin July 16, 2012 32. Taylor Fisch January 27, 2014 33- Walter Robinson February 19, 2013 IV.MARKETING CONTRACTS 34. Criteo 1O Undated 35. Google, Inc. Undated 36. January Digital August 12, 2013 V. SUPPLY PARTNERSHIP CONTRACTS 37- Alteria Art February 21, 2014 38. ART2 I January 29, 2014 15 DeeN: USI:95311113r5 EFTA01083936 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 39. Broadway 1602 March 15, 2014 40- Camden Arts Centre January 13, 2013 41- Diane Villani Editions November 21, 2013 42. If We Were Two March 20, 2014 43. Mary Ryan Gallery February 20, 2014 44- Maya Lin Studio, Inc. March 20, 2014 45. Monique Meloche January 14, 2014 46. Quinze & Milan USA November 26, 2013 47- Tempo Rubato March 18, 2014 48. The Lapis Press February 3, 2014 49. The Modem Institute November 1, 2013 50- Avery McCarthy Undated 51- Deva Graf Undated 52. Gerry Bergstein August 7, 2010 53- James Mylne Undated 54- Nick Brown Undated 55. Nicolas Touron September 27, 2010 56. Nigel Poor Nigel Poor Undated 57- Ana Lopez Montes August 30, 2010 58- Andrea Homick Undated 59- Annie Stephens August 9, 2010 60- Aziz+Cucher April 3, 2012 61- Bastienne Schmidt March 21, 2011 16 DeeN: USI:95311113r5 EFTA01083937 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 62. Billy Sullivan November 7, 2011 63. Blair Seagram August 25, 2012 - Bryan Rowe Undated 65. Bryan Rowe January 26, 2012 66. Brent Steen Undated 67. Burt Barr April 13, 2011 68. Cang Xin March 29, 2012 69. Caroline Allison Undated 70- Celia Rogge October 17, 2012 71- Cyril Christo / Marie Wilkinson February 17, 2012 72. Dan Cooper January 18, 2011 73- Daniel Rich Undated 74- Danielle Eno November l2, 2010 75- David A. Brown Undated 76- David Levinthal Undated 77- David Salle December 7, 2011 78. Donald Baechler April 8, 2011 70- Douglas Geraghty July 21, 2010 80. Dustin Yellin September 19, 2011 81. Elle Muliarchyk Undated 82. Ellen Priest April 17, 2012 83- Francesca DiMattio September 30, 2011 84. Harold Ross May 24, 2012 17 DeeN: USI:9538113r5 EFTA01083938 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT S5- Isaac Julien February 3, 2012 86. James Gebel Undated S7- Jason Jagel May II, 2012 88. Jason Villegas Undated 89. Jay Battle February 21, 2012 90- John Newman April 25, 2012 91- Jose Isola November I, 2011 92. JRSA January 20, 2012 93- Kara Maria Undated 94- Katy Fischer Undated 95- Kelli Vance Undated 96- Kim Piotrowski August 6, 2010 97- Lauren Ward December 11, 2010 98. Leslie Shows Undated 99- Lissy Laricchia Undated 100. Liu Bolin December 3, 2011 101- Marc Dennis Undated 102. Matthew Jensen November 7, 2011 103. Mathieu Doyon July 7, 2010 104. McDermott & McGough February 15, 2012 105. Meghan Boody November 26, 2012 106. Naoe Suzuki Undated 107. Natalie Frank September 25, 2012 18 IMO: UM:9518713,6 EFTA01083939 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 108. Olivia Bee Undated 109. Orly Genger September 7, 2012 110- Pamela Hanson June 20, 2011 III- Paul Gerben December 15, 2011 112. Peter Dayton July 27, 2012 113- Poppy de Villeneuve July 26, 2010 114- Rachel Hulin Undated 115- Rebecca Graham January 19, 2011 1 16. Regina Vater April 14, 2011 117- Robert Gutierrez Undated 118. RongRong & Inn December 6, 2012 119- Ross Bleckner April 11,2011 120. Sally Gall March 21, 2011 121. Serge Hamad February 14, 2012 122. Shantell Martin December 19, 2012 123- M. Sherrie Hunt December 10, 2012 124. Steve Miller March 21, 2011 125. Tatiana Arocha February 16, 2010 126. Ted VanCleave September 6, 2012 127. Tibor de Nagy Gallery June 1, 2012 128. Todd Matarazzo Undated 129. Tom Long Undated 19 DeeN: USI:9538113r5 EFTA01083940 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 130. W. Dieter Zander September 7, 2012 131- Wang Ningde November 28, 2011 131 Warren Neidich December 16, 2011 131 WEN Fang November 28, 2011 134. Will Murray Undated 135- Xing Danwen Undated 136. Youngsuk Suh Undated 137. Zabludowicz Art Projects January 30, 2013 138- 303 Gallery March 10, 2011 139- Acria March 6, 2012 140. Art In General May 25, 2011 141. Alexander and Bonin August 14, 2012 142. Allegra LaViola Gallery June 22, 2012 143. Almine Rech Gallery June 27, 2012 144. Anat Ebgi July 13, 2012 145. Anderson Ranch Arts Centre Undated 146. Andrew Rafacz August 31, 2012 147- Art Production Fund Undated 148. Artis — Contemporary Israeli Art Fund, Inc. May 1, 2010 149- Artis Contemporary Israeli Art Fund January 23, 2012 20 DoeN: USI:95311113r5 EFTA01083941 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 150. Artists Space December 14, 2011 151. Brooklyn Academy of Music January 25, 2011 151 Barbara Krakow Gallery January 23, 2013 153. Bitforms Gallery June 27, 2012 154. Boltax Gallery April 26, 2012 155. Bonni Benrubi Gallery December 14, 2011 156. Bryce Wolkowitz Gallery August 15, 2012 157. C24 Gallery August 17, 2012 158- Catherine Edelman Gallery March 1, 2012 159- Charity Global, Inc. Undated 160. Chelouche Gallery January 13, 2013 161- Chemould Prescott Road September 11, 2012 162. Cherry and Martin December 6, 2011 163. Children's Cancer Blood Foundation July 28, 2011 164- Chinati Foundation April 30, 2012 165- Concept Art Gallery February 1, 2013 166. Corbett vs. Dempsey September 4, 2012 167- Counter Editions August 7, 2012 168- Creative Time August 5, 2011 169. Cristin Tierney February 25, 2012 170. D'Amelio Gallery September 7, 2012 Ill- Dieu Donne May 23, 2012 172. The Drawing Center February 21, 2012 21 DeeN: UM:9538'713,6 EFTA01083942 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 173- Dvir Caller December 5, 2012 174. Electric Works April 30, 2012 175- Eleven Rivington January 26, 2012 176- Ever Gold Gallery April 5, 2012 177- ARTISTS OF THE WORLD October 13, 2011 178- Experimenter August 16, 2012 179- Feature Inc. February 25, 2012 180. Fleisher/Ollman Gallery September 5, 2012 18L Foley April 14, 2012 182. Franklin Furnace Archive, Inc. October 12, 2012 183. Friedrich Petzel Gallery June 9, 2011 184- Galerie Eva Presenhuber March 7, 2012 185. Galerie Letong January 24, 2012 186. Galerie PUSH September 29, 2010 187- Gallery km February 22, 2012 188. Furende Art Printing July 27, 2012 189. Gilman Contemporary May 3, 2012 190- Hank Willis Thomas April 17, 2012 191- The Hayground School October 3, 2011 192. Headlands Center for the Arts April 30, 2012 193- Hespe Gallery May 4, 2012 194- Highlight October 26, 2012 195. Honor Fraser September II, 2012 22 DeeN: USI:95311-713r5 EFTA01083943 COUNTERPARTY TO TIIE CONTRACT DATE OF THE CONTRACT 196- Human Rights Watch December 8, 2011 197- 18 Gallery January 30, 2012 198- Institution of Contemporary Art, Philadelphia August 2, 2011 199- Jack Fischer Gallery May I, 2012 200. James Cohan Gallery March 10, 2011 201. Jotta August 20, 2012 20/ JRSA January 20, 2012 203. Kavi Gupta Gallery April I, 2011 204. The Kitchen November 17, 2010 205. Kopeikin Gallery March 1, 2012 206. L. Parker Stephenson Photographs March 16, 2012 207- La Librairie du Musee d'Art Modeme de la Ville July I, 2011 208. Lakeercn November 10, 2012 209. Landfall Press, Inc. April 6, 2012 210. Laumont Gallery June 5, 2012 211. LAX Art February 6, 2012 212. LeBasse Projects April 21, 2012 213- Lee Gallery March 1, 2012 214. Lehman Maupin LLC July 27, 2011 215. Lennon, Weinberg, Inc. August 30, 2011 216. Lesley Heller Workspace February 9, 2012 217- Leslie Tonkonow Artworks + Projects October 11, 2011 218. Lococo Fine Art Publisher January 22, 2013 23 DoeN: US1:9538113,6 EFTA01083944 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 219- Lombard Freid Projects January 3, 2012 220. Lower Manhattan Cultural Council March 16, 2012 221- Lucien Terras Inc. June 6, 2012 22/ M+B March 6, 2012 223. maccarone December 6, 2011 224. Marianne Boesky Gallery July 29, 2011 225- Mendes Wood July 3, 2012 226. Merce Cunningham Trust May 14, 2012 227. Metro Pictures January 20, 2012 228. Meulensteen May I, 2012 229- Mindy Solomon Gallery April 28, 2012 230. Mixed Greens February 22, 2012 231- Museum of Contemporary Art Cleveland January 12, 2012 23/ MOCA February 21, 2012 233. MOCA Tucson February 16, 2012 234- Modembook Gallery May 4, 2012 235. Museum of Contemporary Art Los Angeles March 8, 2012 236. New Museum January 1, 2012 237- New York Live Arts January 23, 2013 238. Night Gallery March 30, 2012 239. Nye + Brown August 3, 2012 24 DeeN: USI:95311-713r5 EFTA01083945 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 240. Onestar Press May 14, 2012 241. Other Criteria Ltd November 9, 2011 242. P.P.O.W June I, 2012 243- The Paris Review Foundation October 4, 2012 244. Parker's Box February 18, 2012 245. NTHP Glass House July 31, 2012 246. Princeton Architectural Press March 16, 2012 247. Project 88 November 2, 2012 248. Prosodic Body October 20, 2012 249- Hank Willis Thomas April 17, 2012 250. Ratio 3 October 27, 2011 251- Recess June 20, 2012 252- RH Gallery November 19, 2011 253. Rhona Hoffman Gallery November 2, 2011 254- Ricco/Maresca Gallery June I, 2012 255. Rick Wester Fine Art, Inc., d/b/a RWFA March 14, 2012 256. Rogue Fine Art December 13, 2012 257- Roy Boyd Gallery May 5, 2012 258- Sadie Coles HQ December 9, 2011 259. Salomon Contemporary November 16, 2011 260. Sikkema Jenkins & Co May 11, 2011 261- SITE Santa Fe March 6, 2012 262. Sommer Contemporary Art January 8, 2013 25 DeeN: USI:9538113r5 EFTA01083946 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 261 Spoke Art Gallery April 25, 2012 264. Stephen Bulger Gallery April I8, 2012 265- Susan Inglett Gallery January 6, 2012 266. The Andy Warhol Museum August I, 2012 267. The Mission August 22, 2012 268. Three Star Books September 11, 2012 269. Tracy Williams, Ltd February I, 2013 270. Ullens Center for Contemporary Art Undated 271- Untitled Fine Art May 25, 2012 272. Verge Center for the Arts April 18, 2012 273. Walter Maciel Gallery February 4, 2012 274- White Cube Art LLP May 31, 2011 275- Whitney Museum of American Art Undated 276. Yancey Richardson Gallery March 15, 2012 277- Zabludowicz Art Projects January 30, 2013 278- ZieherSmith February 23, 2012 279. David Zwimer August 2, 2011 280. HADA Contemporary April 30, 2013 281- Altman Siegel June 3, 2013 282. Anthony Meier Fine Arts March 12,2013 283. Aperture Foundation August 8, 2013 284- Art on the Unground August 20, 2013 285. Art Plural Gallery Undated 26 DeeN: USI:9538113r5 EFTA01083947 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 286. Assouline Publishing September 27, 2013 287. The Mayor & Commonalty and Citizens of the City Undated of London, owner and principal (under of the Barbican Centre 288. Bortolami Gallery February 1, 2013 289. Brand New Gallery May 3, 2013 290- Brooke Alexander May 22, 2013 291- Contemporary Art Museum St. Louis August 9, 2013 292. Carolina Nitsch Contemporary Art LLC April 22, 2013 293. Casa Dragones March 14, 2013 294- Chisenhale Gallery Undated 295. Clifford Ross Studio, LLC November 8, 2013 296- CMANY May 20, 2013 297- David De Buck February 28, 2013 298. Dia: Beacon August 9, 2013 299- Eduardo Sarabia September 15, 2013 300- Foundation for Contemporary Arts August 8, 2013 301. Fraenkel Gallery June 3, 2013 302- Galerie Stanislas Bourgain October 31, 2013 303- Gering and Lopez Gallery Undated 304- University of South Florida Board of Trustees April 9, 2013 305- Independent Curators International October 31, 2013 306- Keystone Editions / Sarah Dudley — Ulrich Kuehle April 23, 2013 GbR 27 DeeN: USI:95311-713r5 EFTA01083948 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 307. KW Institute for Contemporary Art July 1, 2013 308. Lee Marks Fine Art April 5, 2013 309- Leila Heller Gallery April 5, 2013 310. Galerie Lelong Paris April 2, 2013 311- Long-Sharp Gallery August 26, 2013 311 Museum of Contemporary Art September 30, 2013 311 Morgan Lehman Gallery May 14, 2013 314- Paul Kasim Gallery February 28, 2013 315. Paula Cooper Gallery March 20, 2013 316. Petros Chrisostomou May 17, 2013 317- Poligrafa Obra Grafica June 24, 2013 318- U.S. Biennial, Inc./Prospect New Orleans August 8, 2013 319- Revolver Gallery April 15, 2013 320. Richard Levy Gallery July 2, 2013 321. Magical Thinking Art, Inc. April 30, 2013 322- Miya Ando June 19, 2013 323. Skowhegan School of Painting & Sculpture October 25, 2013 324. Southern Exposure November 12, 2012 325. Sperone Westwater April 4, 2013 326. Stephen Friedman Gallery June 11, 2013 327- Tracy Williams, Ltd February 1, 2013 328- Victoria Miro June 26, 2013 329. White Box Ltd. June 5, 2013 28 DoeN: US1:9538113,6 EFTA01083949 COUNTERPARTY TO THE CONTRACT DATE OF THE CONTRACT 330. Anton Kern Gallery January 22, 2014 331- Artadia February I 8, 2014 331 Diane Villani Editions November 21, 2013 333- Dzine Studio, Inc. February 7, 2014 334. Guild Hall March 17, 2014 335- Planned Parenthood Hudson Peconic February 24, 2014 336. Ralph Gibson January 31, 2014 337- South London Gallery January 15, 2014 338. Swiss Institute/Contemporary Art December 20, 2013 339. Tatra Ishii Gallery December 2, 2013 340. Tamarind Institute November 21, 2013 341- Tandem Press February 13, 2014 342- Taymour Grahne Gallery February 10, 2014 343. Linens Center for Contemporary Art (UCCA) January 16, 2013 VI. TECH CONTRACTS 344- Adobe Typekit November I, 2013 345- Amazon June I, 2013 346. Artspace External License Agreements — Products - 347- Sailthru, Inc. March 30, 2013 348- SalesForce January 7, 2013 29 DeeN: UM:9538'713,6 EFTA01083950 Other Assumed Liabilities Payee Amount of Liability Moutlot Collection $ (9,524.71) FedEx #9915-8-office $ 13.41 Daniel Rich $ 51.80 Elle Muliarchyk $ 55.00 A Plus Messenger-#3443-cogs $ 86.50 ForYourArt $ 100.00 A Plus Messenger -a/c #3110-G&A $ 102.00 Sherrie Hunt $ 196.88 Nessia Pope $ 266.50 Wen Fang $ 285.96 Tate $ 353.58 Tobin Ohashi Gallery $ 427.00 Mendes Wood $ 463.58 Warren Neidich $ 564.98 Wang Jinsong $ 782.30 Dieu Donne $ 1,050.31 FedEx #4413-2-cogs $ 1,196.91 Electric Works $ 1,271.00 Art Production Fund $ 1,620.00 Furende Art Printing $ 1,697.50 Bonnist International Inc $ 1,725.00 Hope Frames $ 1,745.00 Tiffany Beres $ 2,255.38 Brendan Murphy $ 3,000.00 Monday Morning Partners dba VIP Art Fair $ 3,316.00 Criteo Corp, Inc. $ 4,436.66 January Digital $ 5,131.18 Art on the Underground $ 6,139.07 Metropolitan Museum of Art $ 6,943.14 Google, Inc. $ 64,272.99 10001 Bank of America - New #6225 $ 3,850.00 $103,874.92 [commissions payable to be inserted here] 30 DoeN: UM:9538713,5 EFTA01083951 Exhibit B: Creditors of the Company Lender Name and Address Amount Owed* Catherine Levene [amounts to be inserted] [addresses to be inserted] Christopher Vroom Timothy Mott Canaan IX L.P. Daniel G. Levene Richard Kramlich *includes all accrued interest, premium and other amounts owed as of August 14, 2014. 31 DeeN: USI:9538113r5 EFTA01083952 Exhibit C: Employees of the Company to be offered Employment with Buyer Catherine Levene Emmanuele Vinciguerra Patton Hindle Mackenzie Tuite Karen Vanegas Christine Calabro Karstofsky Daniel Taraschi Andrew Goldstein 32 DeeN: USI:9538113r5 EFTA01083953 Exhibit D: Written Information Furnished by the Company to Buyer I. All items uploaded by the Company to Dropbox virtual data room 2. Emails (including attachments) to Keith Fox, John Murphy and Eileen Alexanderson from Catherine Levene and other senior management and from Greg Budin & Associates 3. Access to quickbooks reports and other online reports and databases furnished by the Company 33 DeeN: UM:9538'713,6 EFTA01083954