Exhibit 2.1

EXECUTION VERSION

STOCK PURCHASE AGREEMENT

by and among

Penn National Gaming, Inc.,

Barstool Sports, Inc.,

TCG XII, LLC,

TCG Digital Sports, LLC and

THE INDIVIDUALS SET FORTH ON SCHEDULE A

Dated as of January 28, 2020

TABLE OF CONTENTS

Page

1. Purchase and Sale of Common Stock 2 1.1 Conversion of Company Preferred Stock; Sale of Company Common Stock 2 1.2 Closing; Delivery 3 1.3 Defined Terms Used in this Agreement 4 2. Representations and Warranties of the Company 10 2.1 Organization, Good Standing, Corporate Power and Qualification 11 2.2 Capitalization 11 2.3 Subsidiaries 13 2.4 Authorization 14 2.5 Governmental Consents and Filings 15 2.6 Litigation 15 2.7 Intellectual Property 15 2.8 Noncontravention 19 2.9 Compliance with Law; Gaming Approvals 19 2.10 Agreements; Actions 20 2.11 Certain Transactions 21 2.12 Rights of Registration and Voting Rights 22 2.13 Property 22 2.14 Financial Statements 22 2.15 Changes 23 2.16 Employee Matters 24 2.17 Taxes 27 2.18 Insurance 28 2.19 Employee Agreements 28 2.20 Corporate Documents 28 2.21 Disclosure 28 2.22 Data Privacy 29 2.23 Brokers 29 2.24 No Other Representations 29 3. Representations and Warranties of the Sellers 29 3.1 Authorization 29 3.2 Ownership of the Purchased Shares 29 3.3 Compliance with Other Instruments 30 3.4 No Litigation 30 3.5 No Consent Required; Gaming Approvals 30 3.6 Business Experience 30 3.7 Access to Information 30 3.8 No Continuing Rights 31 3.9 Adequacy of Payment 31

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3.10 Investment Representations 31 3.11 Independent Advice 32 3.12 Brokers 32 3.13 No Other Representations 32 4. Representations and Warranties of PNG 33 4.1 Organization, Good Standing, Corporate Power and Qualification 33 4.2 Authorization 33 4.3 Valid Issuance of Rollover Preferred Stock 33 4.4 Governmental Consents and Filings 33 4.5 Noncontravention 34 4.6 No Litigation 34 4.7 Changes 34 4.8 Disclosure 34 4.9 Disclosure of Information 34 4.10 Continuing Rights 35 4.11 Investment Representations 35 4.12 Financial Capability 36 4.13 Brokers 36 4.14 No Other Representations 36 4.15 Non-Reliance 36 5. Covenants 36 5.1 Conduct of Business 36 5.2 Reasonable Best Efforts 40 5.3 Access; Confidentiality 42 5.4 No Solicitation 43 5.5 Public Announcements 44 5.6 R&W Policy 44 5.7 Financing Matters. 44 5.8 Lock-Up Period 45 5.9 Restrictive Legends 45 5.10 Additional Employment Agreements; Employee Handbook 46 5.11 Incentive Plans 46 6. General Conditions to Closing 47 6.1 No Injunction or Prohibition 47 6.2 HSR Approval 47 7. Conditions to PNG’s Obligations at Closing 47 7.1 Representations and Warranties 47 7.2 Performance 47 7.3 Compliance Certificates 47 7.4 Transaction Agreements 47 7.5 Conversion 47

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7.6 Amended and Restated Charter 48 7.7 Amended and Restated Bylaws 48 7.8 Secretary’s Certificate 48 7.9 Funds Flow Memorandum 48 8. Conditions of the Company’s Obligations at Closing 48 8.1 Representations and Warranties 48 8.2 Performance 48 8.3 Compliance Certificates 48 8.4 Transaction Agreements 48 9. Conditions of Sellers’ Obligations at Closing 48 9.1 Representations and Warranties 48 9.2 Performance 49 9.3 Compliance Certificates 49 9.4 Transaction Agreements 49 10. Frustration of Closing Conditions 49 11. Termination 49 11.1 Termination 49 11.2 Effect of Termination 50 12. Miscellaneous 51 12.1 Survival 51 12.2 Successors and Assigns 51 12.3 Governing Law; Jurisdiction; WAIVER OF JURY TRIAL 51 12.4 Counterparts 52 12.5 Interpretation 53 12.6 Notices 54 12.7 Fees and Expenses 55 12.8 Attorneys’ Fees 55 12.9 Amendments and Waivers 55 12.10 Severability 55 12.11 Delays or Omissions 55 12.12 Entire Agreement 56 12.13 Specific Performance 56

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STOCK PURCHASE AGREEMENT

THIS STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of January 28, 2020 by and among Penn National Gaming, Inc., a Pennsylvania corporation (“PNG”), Barstool Sports, Inc., a Delaware corporation (the “Company”), TCG XII, LLC, a Delaware limited liability company (“TCG XII”), TCG Digital Sports, LLC a Delaware limited liability company (“TCG Digital” and, together with TCG XII, the “TCG Parties”), and the individuals set forth on Schedule A (the “Key Persons” and together with the TCG Parties, the “Sellers”).

A.

In connection with and immediately prior to the consummation of the transactions contemplated by this Agreement, the TCG Parties desire to contribute 104,258 shares of Series A Preferred Stock, par value $0.0001 per share, of the Company and 37,411 shares of Series B Preferred Stock, par value $0.0001 per share, of the Company, as a capital contribution to the Company (the “Pre-Closing Contribution”), pursuant to that certain Contribution Agreement, dated on or about the date hereof, by and among the Company and the TCG Parties.

B.

In connection with and immediately following the Pre-Closing Contribution, and immediately prior to the consummation of the transactions contemplated by this Agreement, the Company desires to issue to Daniel Katz 141,669 shares (the “Katz Compensation Shares”) of common stock, par value $0.0001 per share, of the Company (“Company Common Stock”), pursuant to that certain Common Stock Grant Agreement, dated on or about the date hereof, by and between the Company and Daniel Katz (the “Katz Grant Agreement”).

C.

The Sellers desire to sell an aggregate of 3,188,096 shares of Company Common Stock in the respective amounts set forth on Schedule A to PNG or a Subsidiary of PNG designated by PNG and PNG desires to purchase or cause such designated Subsidiary to purchase such shares from the Sellers, for (a), in the case of the TCG Parties, Erika Nardini and, solely in respect of the Katz Compensation Shares, Daniel Katz, consideration of $49.4110 per share in cash and (b) in the case of the Key Persons (other than Erika Nardini and, solely in respect of the Katz Compensation Shares, Daniel Katz), for per share consideration consisting of (i) $22.2349 in cash and (ii) a number of shares of Series D Preferred Stock, par value $0.01 per share, of PNG, having the rights, preferences, and limitations set forth in Exhibit A (the “Rollover Preferred Stock” and such sale and purchase, collectively, the “Purchase”), equal to the Preferred Share Consideration Amount, in the case of clauses (a) and (b), on the terms (including, for the avoidance of doubt, subject to any adjustment to the Cash Consideration and Stock Consideration contemplated herein) and subject to the conditions set forth in this Agreement.

D.

Prior to the Closing (as defined below), the Sellers shall convert all shares of preferred stock, par value $0.0001 per share, of the Company (“Company Preferred Stock”) then-held by such Sellers into shares of Company Common Stock pursuant to Article Fourth, Section B.4.1.1 of the Charter (as defined below).

The parties hereby agree as follows:

1.

Purchase and Sale of Common Stock

1.1

Conversion of Company Preferred Stock; Sale of Company Common Stock

(a)

The Exchange; Issuance of Exchanged Shares . Pursuant to the terms and conditions of this Agreement, immediately prior to the Closing after confirmation that all conditions to the Closing other than those contained in Sections 7.5 and 7.6 of this Agreement have been satisfied, the TCG Parties shall convert all shares of Company Preferred Stock then-held by such TCG Parties into shares of Company Common Stock pursuant to Article Fourth, Section B.4.1.1 of the Charter, and Erika Nardini shall exercise a sufficient number of options to hold of record at least the number of shares of Company Common Stock as of immediately prior to the Closing as set forth across from her name on Schedule A .

(b)

Subject to the terms and conditions of this Agreement, PNG agrees to purchase at the Closing and the Sellers agree to sell to PNG at the Closing 3,188,096 shares of Company Common Stock (the “Purchased Shares”) in the respective amounts set forth across from such Seller’s name on Schedule A , at a purchase price of (i) in the case of the TCG Parties, Erika Nardini and, solely in respect of the Katz Compensation Shares, Daniel Katz, consideration of $49.4110 per Purchased Share in cash and (ii) in the case of the Key Persons (other than Erika Nardini and, solely in respect of the Katz Compensation Shares, Daniel Katz), consideration per Purchased Share consisting of $22.2349 in cash and a number of shares of Rollover Preferred Stock equal to the Preferred Share Consideration Amount, subject, in the case of clause (ii) only, to any adjustments to such allocation between cash and shares of Rollover Preferred Stock in respect of (A) cash in lieu of fractional shares of Rollover Preferred Stock as set forth below and (B) the parties’ agreement that the Purchase Consideration payable to such Sellers (excluding their pro rata portion of any unpaid Seller Transaction Expenses paid by PNG pursuant to Section 1.2(b)(i) below) shall be allocated 45% to cash and 55% to shares of Rollover Preferred Stock (or as close to such allocation as is reasonably practicable). Notwithstanding any other provision of this Agreement, no fractional shares of Rollover Preferred Stock shall be issued upon the surrender for exchange of Company Common Stock and any Key Persons who would otherwise have been entitled to receive a fraction of a share of Rollover Preferred Stock (after aggregating all shares of Company Common Stock delivered by such Key Persons hereunder) shall receive, in lieu thereof, cash, without interest, in an amount equal (rounded to the nearest whole cent) to such fraction of a share of Rollover Preferred Stock multiplied by the product of (x) 1,000 and (y) the PNG Stock Price. The aggregate cash consideration for the Purchased Shares (including cash in lieu of fractional shares of Rollover Preferred Stock and the amount of unpaid Seller Transaction Expenses paid by PNG pursuant to Section 1.2(b)(i) , the “Cash Consideration”) and consideration consisting of Rollover Preferred Stock (the “Stock Consideration” and, together with the Cash Consideration, the “Purchase Consideration”) is set forth on Schedule A . The parties agree that $5,000,000 of the Purchase Consideration paid to the Sellers pursuant to this Agreement shall be treated as having been paid by PNG to the Company pursuant to Section 5 of the Commercial Relationship Agreement and distributed by the Company to the Sellers pro rata in accordance with their respective Pro Rata Percentages (as the defined below), in a transaction that, for U.S. federal (and applicable state and local) income tax purposes, is treated as a redemption by the Company of shares of Company Common Stock from the Sellers and, together with the purchase and sale of the Purchased Shares, is treated as a single integrated transaction. The parties shall not take any position that is inconsistent with the foregoing treatment for tax purposes, unless otherwise required pursuant to a final determination with the meaning of Section 1313(a) of the Code. For the avoidance of doubt, there shall not be any adjustment to the Purchase Consideration in respect of any Company Transaction Expenses, which shall be the sole responsibility of the Company, or the TCG Transaction Expenses, which shall be the sole responsibility of TCG.

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1.2

Closing; Delivery

(a)

The purchase and sale of the Purchased Shares (the “Closing”) shall take place remotely via the exchange of documents and signatures at 10:00 a.m., New York City local time, on the date which is three (3) business days after the satisfaction or waiver (subject to applicable Law) of all of the conditions set forth in Sections 6 , 7 , 8 and 9 (other than those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), unless another date, time or place is agreed to in writing by the parties hereto. The date on which the Closing occurs is referred to as the “Closing Date.”

(b)

At the Closing, (i) PNG shall pay from the Purchase Consideration otherwise owed to the Sellers any Seller Transaction Expenses that remain unpaid as of the Closing, (ii) PNG shall pay each Seller the Cash Consideration, by wire transfer to the applicable bank accounts designated by such Seller, and, as applicable, deliver to such Seller a certificate or evidence of book-entry notations from PNG’s transfer agent representing the Stock Consideration therefor, as adjusted (A) in the case of the Sellers that are only receiving Cash Consideration, by a deduction for their pro rata portion of any unpaid Seller Transaction Expenses paid by PNG pursuant to the preceding clause (i) and (B) in the case of the Sellers that are receiving both Cash Consideration and Stock Consideration, in respect of (1) a deduction for their pro rata portion of any unpaid Seller Transaction Expenses paid by PNG pursuant to the preceding clause (i), (2) cash in lieu of fractional shares of Rollover Preferred Stock and, (3) the parties’ agreement that the Purchase Consideration payable to such Sellers (excluding their respective pro rata portions of any unpaid Seller Transaction Expenses paid by PNG pursuant to the preceding clause (i)) shall be allocated 45% to cash and 55% to shares of Rollover Preferred Stock (or as close to such allocation as is reasonably practicable), and (iii) the Company shall issue to PNG an electronic certificate representing the Purchased Shares. For the avoidance of doubt, the adjustment contemplated by the preceding clauses (ii)(A) and (ii)(B)(1) shall be based on the respective percentages set forth opposite the Sellers’ names in the column titled “Pro Rata Percentage” on Schedule A (the “Pro Rata Percentages”).

(c)

At the Closing, the Company shall deliver to PNG a properly executed affidavit reasonably satisfactory to PNG and that complies with Section 1445 of the Code and the Treasury Regulations issued thereunder that states that shares in the Company do not constitute “United States real property interests” within the meaning of Code Section 897(c).

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(d)

PNG shall be entitled to deduct and withhold from the Purchase Consideration, and any amounts otherwise payable (or deliverable) pursuant to this Agreement such amounts as PNG is required to deduct and withhold under the Code, or any Tax law, with respect to the making of such payment (or the delivery of such consideration); provided that, solely in respect of the Purchase Consideration due in respect of the Katz Compensation Shares, Daniel Katz hereby directs PNG, and PNG shall, transfer to the Company $3,684,542.04 from such Purchase Consideration in order to enable the Company to deduct and withhold such amount as the Company is required to deduct and withhold under the Code or any Tax law in connection with the grant of the Katz Compensation Shares pursuant to the Katz Grant Agreement. Except in connection with any deduction or withholding related to compensatory amounts or a failure to provide the affidavit described in Section 1.2(c), (i) PNG shall provide the relevant Seller(s) with notice of any amounts PNG determines, acting in good faith, are required to be deducted or withheld from amounts otherwise payable to such Seller prior to making such withholding and (ii) PNG shall provide a reasonable opportunity for such relevant Seller(s) to provide such forms or other evidence that would exempt such amounts from withholding tax. To the extent that amounts are so withheld or deducted and paid over to the applicable tax authority, such withheld and deducted amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

1.3

Defined Terms Used in this Agreement

. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.

(a)

“Action” means any (i) action, suit, claim (including any counterclaim), litigation, proceeding (including any civil, criminal, administrative or appellate proceeding), hearing, charge, complaint, arbitration or mediation, or (ii) any audit, inquiry, examination or investigation, in each case, commenced, brought, conducted or heard by or before, any court or other Governmental Entity or any arbitrator or arbitration panel or mediator or mediation panel.

(b)

“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation any general partner, managing member, officer or director of such Person or any investment fund or vehicle now or hereafter existing that is controlled by one or more general partners or managing members of, or shares substantially the same management company with, such Person; provided, that the Company shall not be deemed an Affiliate of the TCG Parties or PNG for the purposes of this Agreement.

(c)

“Amended and Restated Bylaws” means the Amended and Restated Bylaws of the Company, dated as of the Closing Date, in the form of Exhibit C attached to this Agreement.

(d)

“Amended and Restated Charter” means the Third Amended and Restated Certificate of Incorporation of the Company, dated on or about the Closing Date, in the form of Exhibit B attached to this Agreement.

(e)

“Bylaws” means the Bylaws of the Company, dated as of November 6, 2017.

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(f)

“business day” means any day, other than a Saturday, Sunday, or a day on which banking institutions are authorized or obligated by Law to be closed in New York, New York.

(g)

“Charter” means the Second Amended and Restated Certificate of Incorporation of the Company, dated as of November 6, 2017.

(h)

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

(i)

“Commercial Relationship Agreement” means the Commercial Relationship Agreement between the Company and PNG, dated as of the Closing Date, in the form of Exhibit D attached to this Agreement.

(j)

“Company Intellectual Property” means all Intellectual Property and Intellectual Property Rights owned or purported to be owned by the Company or any of its Subsidiaries (whether exclusively, jointly or otherwise), including Company Registered IP.

(k)

“Company Transaction Expenses” means, without duplication and excluding any Seller Transaction Expenses and TCG Transaction Expenses, (i) the fees, costs and expenses, to the extent reasonable and supported with invoices, owed by the Company to its investment bankers, attorneys, accountants, advisors, brokers and other professionals payable in connection with or relating to the negotiation of this Agreement or the consummation of the transactions contemplated hereby (excluding the investment banker set forth on Subsection 2.23 of the Company Disclosure Schedule whose fees and expenses shall be deemed to be Seller Transaction Expenses), (ii) the Nardini Transaction Expenses, and (iii) the Portnoy Transaction Expenses, in each case, as set forth in the Funds Flow Memorandum.

(l)

“Confidentiality Agreement” means the Confidentiality Agreement, dated as of August 21, 2019, by and between the Company and PNG.

(m)

“Employee Benefit Plan” means each employee or director benefit plan, arrangement or agreement, whether or not written, including any employee welfare benefit plan within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control or fringe benefit plan, program or agreement that is or has been sponsored, maintained or contributed to by the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has or reasonably could be expected to have any liability (including indirect or successor liability) on account of any other trade or business, whether or not incorporated, all of which together with the Company would be deemed a “single employer” within the meaning of Section 4001 of ERISA (an “ERISA Affiliate”).

(n)

“Existing Credit Agreement” means the Loan and Security Agreement, dated as of May 2, 2017, by and between Pacific Western Bank and the Company, as amended by that that certain (i) Consent and First Amendment to Loan and Security Agreement, dated as of October 27, 2017, (ii) Second Amendment to Loan and Security Agreement, dated as of November 17. 2017, (iii) Third Amendment to Loan and Security Agreement, dated as of December 20, 2017, (iv) Fourth Amendment to Loan and Security Agreement, dated as of February 5, 2018, (v) Fifth Amendment to Loan and Security Agreement, dated as of May 10, 2018, (vi) Sixth Amendment to Loan and Security Agreement, dated as of September 27, 2018 and (vii) Seventh Amendment to Loan and Security Agreement, dated as of July 22, 2019.

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(o)

“Founders” means David Portnoy, Kevin Clancy and Keith Markovich.

(p)

“Fraud” means actual and intentional fraud with respect to Articles II, III and IV hereof that involves a knowing and intentional misrepresentation therein with the intent that the other party rely thereon to their detriment, and for the avoidance of doubt, does not include constructive fraud or other claims based on constructive knowledge, negligent misrepresentation, recklessness or similar theories.

(q)

“GAAP” means generally accepted accounting principles in the United States.

(r)

“Gaming Approvals” means all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority or under Gaming Laws necessary for or relating to conduct of gaming and related activities or the ownership or the operation, management and development of any gaming operations.

(s)

“Gaming Authority” means any Governmental Entity with regulatory control and authority or jurisdiction over the conduct of gaming, pari-mutuel wagering and related activities or the ownership, operation, management or development of any gaming operations.

(t)

“Gaming Law” means any foreign, federal, tribal, state, county or local statute, law, ordinance, rule, regulation, permit, consent, approval, finding of suitability, license, judgment, order, decree, injunction or other authorization governing or relating to the conduct of gaming, pari-mutuel wagering and related activities or the ownership, operation, management or development of any gaming operations, including the rules, regulations, and orders of the Gaming Authorities.

(u)

“Governmental Entity” means (i) any supranational, national, federal, state, county, municipal, local, or foreign government or any entity exercising executive, legislative, judicial, regulatory, taxing, or administrative functions of or pertaining to government, (ii) any public international governmental organization or (iii) any agency, division, bureau, department, or other political subdivision of any government, entity or organization described in the foregoing clauses (i) or (ii) of this definition (including patent and trademark offices and self-regulatory organizations).

(v)

“Intellectual Property” means any or all of the following: (i) inventions (whether patentable or not), invention disclosures, industrial designs, improvements, Trade Secrets, proprietary information, know-how, technology, techniques, processes, technical data and customer lists, and all documentation relating to any of the foregoing; (ii) business and technical information, nonpublic information, confidential information; (iii) works of authorship (including computer programs, in any form, including source code, object code, or executable code, and whether embodied in software, firmware or otherwise), architecture, artwork, logo images, documentation, files, records, databases and data collections, schematics, diagrams, application programming interfaces, user interfaces, algorithms, websites, verilog files, netlists, emulation and simulation reports, test vectors and hardware development tools; (iv) devices, prototypes, schematics, bread boards, mask works, test methodologies and hardware development tools and (v) any similar or equivalent property or embodiments of Intellectual Property Rights.

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(w)

“Intellectual Property Rights” means any and all rights arising from or associated with any of the following, whether protected, created or arising under the Laws of the United States or any other jurisdiction: (i) logos, trade names, trademarks and service marks (registered and unregistered), trade dress, slogans and similar rights, and all registrations thereof and all applications (including intent to use applications) to register any of the foregoing (collectively, “Marks”); (ii) domain names, uniform resource locators, World Wide Web addresses and any other Internet addresses or identifiers; (iii) patents, utility models and any similar or equivalent rights with respect to the protection of inventions (including utility and design patents, industrial design rights, substitutions, continuations, continuations-in-part, divisions, renewals, revivals, reissues, re-examinations, extensions, invention disclosures, records of intention, certificates of invention and priority rights), and all applications for any of the foregoing (collectively, “Patents”); (iv) copyrights and mask works (registered and unregistered), works of authorship and all other rights corresponding thereto, including moral and economic rights of authors and inventors (collectively, “Copyrights”); (v) know-how, trade secrets, inventions, methods, processes, customer lists, technical data, specifications, discoveries, techniques, methodologies, formulae, algorithms, research and development information, technology, product roadmaps and any other information of any kind or nature, in each case to the extent any of the foregoing derives economic value (actual or potential) from not being generally known to other Persons who can obtain economic value from its disclosure (“Trade Secrets”); and (vi) publicity rights, database rights and any other proprietary, intellectual or industrial property rights of any kind or nature.

(x)

“Investor Rights Agreement” means the Amended and Restated Investors’ Rights Agreement, dated as of November 7, 2017, by and among the Company and the other parties thereto, as amended.

(y)

“Key Employee” means those individuals listed in Subsection 1.3(y) of the Company Disclosure Schedule.

(z)

“Key Employee Agreements” means the employment agreements with each of David Portnoy, Daniel Katz and Erika Nardini in the forms attached to Subsection 1.3(z) of the Company Disclosure Schedule.

(aa)

“Knowledge” including the phrase “to the Company’s Knowledge” shall mean the actual knowledge, after reasonable investigation, of David Portnoy, Erika Nardini, Daniel Katz, Wajeeha Ahmed and David VanEgmond.

(bb)

“Law” means any supranational, federal, foreign, national, state, provincial or local statute, law (including common law), constitution, resolution, code, edict, decree, directive, ruling, ordinance, rule or regulation issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

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(cc)

“Losses” means any and all damages, fines, fees, penalties, deficiencies, debts, liabilities and obligations (whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable), Taxes, claims, losses, demands, awards, judgments, assessments, settlements, actions, obligations and costs and expenses (including interest, court costs and reasonable fees and costs of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any claim, default or assessment).

(dd)

“Management Rights Letters” means the Management Rights Letter, dated as of November 7, 2017, by and between the Company and TCG XII and the Management Rights Letter, dated as of December 31, 2015, by and between the Company and TCG Digital Sports, LLC.

(ee)

“Material Adverse Effect” means, with respect to any Person, any fact, circumstance, effect, change, event or development that, individually or in the aggregate, has a material adverse effect on (i) the business, assets (including intangible assets), liabilities, condition (financial or otherwise), property or results of operations of such Person or (ii) such Person’s ability to perform its obligations under this Agreement or to consummate the transactions contemplated hereby; provided, however, that any adverse fact, circumstance, effect, change, event or development to the extent arising from or relating to the following shall not be deemed, either alone or in combination, to constitute a Material Adverse Effect: (1) general business or economic conditions, including such conditions related to the general industry of such Person, (2) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (3) financial, banking, or securities markets, (4) changes in GAAP after the date hereof and (5) the taking of any action expressly required by the Transaction Agreements.

(ff)

“Material Mark” means any Mark owned by the Company or any of its Subsidiaries that are used in and material to the business of the Company or its Subsidiaries.

(gg)

“Nardini Transaction Expenses” means the fees, costs and expenses, to the extent reasonable and supported with invoices, owed by Erika Nardini to her attorneys payable in connection with or relating to the negotiation of this Agreement or the consummation of the transactions contemplated hereby.

(hh)

“Open Source Materials” means any Software that is distributed as “free software,” “open source software” or under similar licensing or distribution terms (such as the Creative Commons licenses, GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), the Apache License and any license identified as an open source license by the Open Source Initiative (www.opensource.org)).

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(ii)

“party” means a party to this Agreement, unless the context otherwise requires.

(jj)

“Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

(kk)

“PNG Stock Price” means the closing sales price of one (1) share of common stock, par value $0.01 per share, of PNG as reported on Nasdaq on January 28, 2020 (as adjusted as appropriate to reflect any stock splits, stock dividends, combinations, reorganizations, reclassifications or similar events).

(ll)

“Portnoy Transaction Expenses” means the fees, costs and expenses, to the extent reasonable and supported with invoices, owed by David Portnoy to his attorneys payable in connection with or relating to the negotiation of this Agreement or the consummation of the transactions contemplated hereby.

(mm)

“Preferred Share Consideration Amount” means the quotient obtained by dividing (a) the product of (i) 55% and (ii) $49.4110 by (b) the product of (i) $1,000 and (ii) the PNG Stock Price.

(nn)

“Right of First Refusal and Co-Sale Agreement” means the Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of November 7, 2017, by and among the Company and the other parties thereto, as amended.

(oo)

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

(pp)

“Seller Transaction Expenses” means, without duplication and excluding any Company Transaction Expenses (including, for the avoidance of doubt, the Nardini Transaction Expenses and Portnoy Transaction Expenses) and TCG Transaction Expenses, the fees, costs and expenses owed by the Sellers to their respective investment bankers, attorneys, accountants, advisors, brokers and other professionals payable in connection with or relating to the negotiation of this Agreement or the consummation of the transactions contemplated hereby (including the investment banker set forth on Subsection 2.23 of the Company Disclosure Schedule, notwithstanding that such investment banker was formally engaged by the Company), in each case, as set forth in the Funds Flow Memorandum.

(qq)

“Software” means in object and source code form (as applicable) any and all computer programs, software, firmware, middleware, applications, APIs, web widgets, scripts and code, and any associated documentation for any the foregoing.

(rr)

“Stockholders Agreement” means the Stockholders Agreement among the Company, the Sellers and PNG, dated as of the Closing Date, in the form of Exhibit E attached to this Agreement.

(ss)

“Subsidiary” means, with respect to any Person, any other Person of which fifty percent (50%) or more of the voting power of the outstanding voting equity securities or fifty percent (50%) or more of the outstanding economic equity interest is held, directly or indirectly, by such Person.

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(tt)

“Tax Return” means any return (including any information return), report, statement, schedule, notice, form, or other document or information, including any attachment thereto and any amendments thereof, filed with or submitted to, or required to be filed with or submitted to, any governmental body in connection with the determination, assessment, collection, or payment of any Tax.

(uu)

“Taxes” means any and all foreign, United States federal, state,or local taxes, levies, fees, imposts, duties, and similar governmental changes (including any interest, fines, assessments, penalties or additions to tax imposed in connection therewith or with respect thereto) including those imposed on or measured by, or computed with respect to, income, franchise, profits or gross receipts, alternative or add-on minimum, margin, ad valorem, value added, capital gains, sales, goods and services, use, real or personal property, escheat or unclaimed property taxes (or similar), environmental, capital stock, license, branch, payroll, estimated, withholding, employment, social security (or similar), insurance, disability, workers compensation, unemployment, compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, transfer and gains, registration, net worth, and customs duties.

(vv)

“TCG Transaction Expenses” means the fees, costs and expenses owed by TCG to its attorneys payable in connection with or relating to the negotiation of this Agreement or the consummation of the transactions contemplated hereby.

(ww)

“Transaction Agreements” means this Agreement, the Commercial Relationship Agreement, the Stockholders Agreement and the Key Employee Agreements.

(xx)

“Transaction Expenses” means, the Company Transaction Expenses (including, for the avoidance of doubt, the Nardini Transaction Expenses and Portnoy Transaction Expenses), the Seller Transaction Expenses and the TCG Transaction Expenses.

(yy)

“Treasury Regulations” means final and temporary income tax regulations proposed by the U.S. Department of Treasury existing as of the Effective Date.

(zz)

“U.S.” and “United States” means the United States of America.

(aaa)

“Voting Agreement” means the Amended and Restated Voting Agreement, dated as of November 7, 2017, by and among the Company and the other parties thereto, as amended.

2.

Representations and Warranties of the Company

Section 2

. Except as disclosed in the applicable section of the disclosure schedule delivered by the Company to PNG immediately prior to the execution of this Agreement (the “”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Schedule shall be deemed to apply to and qualify (or, as applicable, a disclosure for purposes of) the representation and warranty set forth in this Agreement to which it corresponds in number and, whether or not an explicit reference or cross-reference is made, each other representation and warranty set forth in thisfor which it is reasonably apparent on its face that such information is relevant to such other section), the Company represents and warrants to PNG as set forth below.

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2.1

Organization, Good Standing, Corporate Power and Qualification .

(a)

The Company is a Delaware corporation, duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as conducted as of the date hereof and as proposed to be conducted after the Closing. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.

(b)

True and complete copies of the Charter and Bylaws and any amendments thereto, in each case as in effect on the date hereof, have been made available to PNG. The Company is not in violation of any provision of the Charter or the Bylaws unless, in the case of a violation of the Bylaws, such violation would not be material to the Company and its Subsidiaries, taken as a whole, or the transactions contemplated by the Transaction Agreements.

2.2

Capitalization

. As of the date hereof, the authorized and issued capital of the Company consists of:

(a)

15,000,000 shares of Company Common Stock, 3,222,818 shares of which are issued and outstanding. All of the outstanding shares of Company Common Stock have been duly authorized, are fully paid and nonassessable and have been issued in compliance with all applicable federal and state securities Laws and there is no Company Common Stock in the Company’s treasury.

(b)

5,511,443 shares of Company Preferred Stock, of which 4,056,000 shares have been designated Series A Preferred Stock, all of which are issued and outstanding, 763,919 shares have been designated Series B Preferred Stock, all of which are issued and outstanding, and 691,524 shares have been designated Series B-1 Preferred Stock, all of which are issued and outstanding. The rights, privileges and preferences of the Company Preferred Stock of the Company are as stated in the Charter and as provided by the Delaware General Corporation Law, all of the outstanding shares of Company Preferred Stock have been duly authorized, are fully paid and nonassessable and have been issued in compliance with all applicable federal and state securities Laws and there is no Company Preferred Stock in the Company’s treasury.

(c)

As of the date hereof, the number of shares of Company Common Stock reserved for issuance to officers, directors, employees and consultants of the Company pursuant to its 2015 Stock Incentive Plan duly adopted by the Board of Directors of the Company (the “Board”) and approved by the Company stockholders (the “Stock Plan”) is an aggregate of 1,261,899 shares of Company Common Stock. Under the Stock Plan (i) options to purchase 365,993 shares have been granted and as of the date hereof are currently outstanding, (ii) 581,485 shares have been issued pursuant to the exercise of outstanding options as of the date hereof and (iii) 314,421 shares of Company Common Stock remain available for future issuance to officers, directors, employees and consultants of the Company. The Company has made available to PNG complete and accurate copies of the Stock Plan and forms of agreements used thereunder. Except as set forth in Subsection 2.2(c) of the Company Disclosure Schedule, as of the date hereof, the Company has not granted or committed to grant any options or equity awards under the Stock Plan or otherwise, and the Company is not required to grant any options, equity awards, equity incentives or similar equity interest in the Company to any Person.

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(d)

Subsection 2.2(d) of the Company Disclosure Schedule sets forth the capitalization of the Company immediately following the Closing and after giving effect to the transactions contemplated by Section 1.1(a) and the Company’s adoption of the Amended and Restated Charter, including the number of shares of the following: (i) issued and outstanding Company Common Stock, including, with respect to restricted Company Common Stock, vesting schedule and repurchase price; (ii) outstanding stock options to purchase Company Common Stock, including, with respect to each such stock option (A) the number of shares of Company Common Stock covered by such stock option, (B) the vesting schedule and per share exercise price, (C) the term, and (D) any provisions regarding accelerated vesting; (iii) shares of Company Common Stock reserved for future award grants under the Stock Plan; and (iv) warrants or stock purchase rights, if any. Except for (i) the rights provided in the Transaction Agreements and (ii) the securities and rights described in Subsection 2.2(d) of the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Common Stock or Company Preferred Stock, or any securities convertible into or exchangeable for shares of Company Common Stock or Company Preferred Stock.

(e)

None of the Company’s stock purchase agreements, stock plan or stock option or other equity related documents, agreements or understandings contains a provision for acceleration of vesting (or lapse of a repurchase right) or other changes in the vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events, including in the case where the Company’s Stock Plan is not assumed in an acquisition, merger, consolidation, sale of stock or assets, change in control or any other transaction by the Company, or in the case of a termination of employment or consulting services (whether actual or constructive). Except as described herein, the Company has no obligation (contingent or otherwise) to purchase or redeem any of its capital stock. The Company has never adjusted or amended the exercise price of any stock options previously awarded, whether through amendment, cancellation, replacement grant, repricing, or any other means.

(f)

Section 409A and Related . To the Company’s Knowledge, all stock options and other equity-based awards issued or granted by the Company to a person in connection with such person’s services to the Company have been granted with exercise prices that equal or exceed the fair market value of the underlying shares of Company Common Stock subject to such options or other equity-based awards on the date of grant or issuance and, to the Company’s Knowledge, no stock options, stock appreciation rights or other equity-based awards issued or granted by the Company are subject to the penalties of Section 409A(a)(1) of the Code. Any “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company makes, is obligated to make or promises to make, payments (each, a “409A Plan”) complies in all material respects, in both form and operation, with the requirements of Section 409A of the Code and the guidance thereunder. No payment to be made under any 409A Plan is, or will be, subject to the penalties of Section 409A(a)(1) of the Code.

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(g)

To the Company’s Knowledge, all elections and notices permitted by Section 83(b) of the Code and any analogous provisions of applicable state Tax Laws have been timely filed by all employees who have purchased shares of Company Common Stock under agreements that provide for the vesting of such shares.

(h)

The Company has obtained valid waivers of any rights by other parties to the conversion and issuance of shares contemplated by Section 1.1(a) and the purchase of the Purchased Shares covered by this Agreement.

(i)

The rights, preferences, privileges and restrictions of the Purchased Shares will be as of the Closing as stated in the Amended and Restated Charter. The Purchased Shares are (or, in the case of Purchased Shares to be issued in accordance with this Agreement, will be) validly issued, fully paid and nonassessable. The sale of the Purchased Shares will not be subject to any preemptive rights or rights of first refusal that have not been properly waived or complied with.

(j)

Neither the Company nor any of its Subsidiaries has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.

(k)

There are no voting trusts or other agreements, commitments or understandings to which the Company or any of its Subsidiaries (or to the Company’s Knowledge, a stockholder of the Company) is a party with respect to the voting of the capital stock or other equity interests of the Company or any of its Subsidiaries.

2.3

Subsidiaries

(a)

Section 2.3(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of (i) the name and the jurisdiction of organization of each of the Company’s Subsidiaries, (ii) the authorized and outstanding equity interests of each of the Company’s Subsidiaries and (iii) the record owners of such outstanding equity interests. Except as set forth in Section 2.3(a) of the Company Disclosure Schedule, all of the outstanding equity interests of each Subsidiary of the Company are owned of record and beneficially by the Company (or a Subsidiary thereof) as of the date of this Agreement and are owned, directly or indirectly, by the Company free and clear of all liens, pledges, security interests, charges, contractual obligations, claims or encumbrances of any kind (collectively, “Liens”) other than restrictions on transfer under state and/or federal securities Laws. All of the outstanding equity interests of each Subsidiary of the Company are validly issued, fully paid and, in the case of any such Subsidiary which is a corporation, non-assessable.

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(b)

Each of the Company’s Subsidiaries is a limited liability company duly organized and validly existing. Each of the Company’s Subsidiaries has all requisite limited liability company power and authority to carry on its business as conducted as of the date hereof and as proposed to be conducted after the Closing. Each of the Company’s Subsidiaries is duly qualified to do business and, where applicable, in good standing in each jurisdiction where the nature of its business or properties makes such qualification necessary, except where the failure to be so qualified or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)

There are no issued or outstanding (i) securities of the Company convertible into, or exchangeable for, shares of capital stock or other voting securities of, or other ownership interests in, any Subsidiary of the Company, (ii) warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or any contracts to which the Company or any of its Subsidiaries is a party or by which any of them is bound obligating the Company or such Subsidiary, as applicable, to issue, any shares of capital stock or other voting securities of, or other equity or ownership interests in, or any securities convertible into, or exchangeable for, any shares of capital stock or other voting securities of, or other equity or ownership interests in, any Subsidiary of the Company, or (iii) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock or other voting securities of, or other ownership interests in, any Subsidiary of the Company.

(d)

Except as set forth in Section 2.3(a) of the Company Disclosure Schedule, the Company does not own or control, directly or indirectly, any shares, membership interest, partnership interest, joint venture interest, or other equity, voting or ownership interest in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, nor is it under any current or prospective obligation to form or participate in, make any loan, capital contribution, guarantee, credit enhancement or other investment in, any Person.

(e)

The Company has made available to PNG (i) a true and complete list, with respect to the Company and each of its Subsidiaries, of such entity’s officers and directors (or Persons with equivalent responsibilities) and (ii) true and complete copies of the certificate of incorporation and bylaws (or comparable organizational documents) of each of its Subsidiaries, in each case as in effect on the date hereof.

2.4

Authorization

. All corporate action required to be taken by the Board and stockholders in order to authorize the Company to enter into the Transaction Agreements and to issue any Purchased Shares required to be issued in connection with this Agreement has been taken. All action on the part of the officers and/or directors of the Company necessary for the execution and delivery of the Transaction Agreements, the performance of all obligations of the Company under the Transaction Agreements, and the issuance of any Purchased Shares required to be issued in connection with this Agreement, has been taken or will be taken prior to the Closing. The Transaction Agreements, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against it in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other Laws of general application relating to or affecting the enforcement of creditors’ rights generally or (ii) as limited by Laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

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2.5

Governmental Consents and Filings

Section 3

Section 4

. Assuming the accuracy of the representations made by Sellers inof this Agreement and PNG inof this Agreement, no consent, approval, order, license, permit, franchise, variance, exemption, declaration, registration, clearance, waiver, consent or authorization of, action or nonaction by, registration, declaration or filing with, or notice to, any Governmental Entity (the foregoing, “”) is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, except for (i) the filing of a premerger notification and report form by PNG under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “”), (ii) the filing of the Amended and Restated Charter, (iii) any filings required pursuant to applicable federal and state securities Laws, which have been made or will be made in a timely manner and (iv) Governmental Authorizations the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

2.6

Litigation

Subsection 2.6

. There is no Action pending or, to the Company’s Knowledge, currently threatened in writing: (i) against the Company, (ii) against the Founders or any Key Employee relating to the business of the Company, (iii) that questions the validity of the Transaction Agreements or the right of the Company to enter into them, or to consummate the transactions contemplated by the Transaction Agreements or (iv) that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Neither the Company or the Founders, or, to the Company’s Knowledge, any Key Employee is a party or is named as subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality (in the case of the Founder or Key Employee, such as would affect the Company).of the Disclosure Schedule lists all material settlements entered into by the Company and material Actions of which the Company was made aware in writing, in each case since January 1, 2017 to the date hereof. For the purposes of the preceding sentence, “material” shall mean at least $100,000 individually, or $250,000 in the aggregate. There is no Action by the Company pending or which the Company intends to initiate. The foregoing includes actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor known to the Company) involving the prior employment of the Founders or any of the Company’s other Key Employees, their services provided in connection with the Company’s business, any information or techniques allegedly proprietary to any of their former employers or their obligations under any agreements with prior employers. There is no judgment, order or decree of any Governmental Entity outstanding against the Company or any of its Subsidiaries that is material to the Company or the transactions contemplated by the Transaction Agreements.

2.7

Intellectual Property

(a)

Section 2.7(a) of the Company Disclosure Schedule lists all active registered and applied-for Company Intellectual Property (“Company Registered IP”), including for each item of Company Registered IP, the title, application number, filing date, jurisdiction, registration, issuance or grant date, and registration, issuance or grant number.

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(b)

Except as would not reasonably be expected to be material to the Company, taken as a whole, or the transactions contemplated by the Transaction Agreements, (i) all Company Registered IP (other than (x) patent applications or applications to register trademarks or copyrights and (y) Company Registered IP to which the Company and its Subsidiaries have abandoned or allowed to lapse in their reasonable business discretion) is subsisting and in full force and effect and not invalid or, to the Company’s Knowledge, not unenforceable, (ii) neither the Company nor any of its Subsidiaries has received any written notice of any Action since January 1, 2017 challenging the ownership, use or practice, right to use or practice, right to register, registration, priority, duration, validity or enforceability of any Company Registered IP or alleging any misuse of such Company Registered IP, and (iii) no Company Registered IP or Material Mark is involved in any litigation, interference, derivation, post-grant, reissue, reexamination, opposition, cancellation or similar Action and, to the Company’s Knowledge, no such Action is or has been threatened in writing with respect to any of the Company Registered IP or any Material Mark. To the Company’s Knowledge, no registered Marks or unregistered Material Marks owned, used or applied for by the Company or any of its Subsidiaries conflicts or interferes with any Mark (whether registered or unregistered) owned, used or applied for by any other Person and the Company and its Subsidiaries have taken reasonable steps to police the use of each of the Material Marks owned by the Company or its Subsidiaries in each jurisdiction where the Material Marks have been used. Except as would not reasonably be expected to be material to the Company, taken as a whole, or the transactions contemplated by the Transaction Agreements, no Company Intellectual Property and, to the Company’s Knowledge, no material Intellectual Property licensed to the Company or any of its Subsidiaries under any third-party Intellectual Property licenses (“Company Licensed Intellectual Property”), in each case, is subject to any outstanding order, judgment, ruling, stipulation or compulsory or confirmatory licensing terms entered or imposed by any court or any administrative or arbitration tribunal (x) that restricts or limits in any manner the use, practice, exploitation, assignability, transfer, or licensing thereof by the Company or any of its Subsidiaries or (y) which restricts or limits the ownership, use or practice, right to use or practice, right to register, registration, priority, duration, validity or enforceability of such Company Intellectual Property or such Company Licensed Intellectual Property.

(c)

With respect to each item of material Company Registered IP, all necessary filing, examination, registration, maintenance, renewal and other fees and taxes due on or prior to the date hereof have been timely paid in full (and any such amounts due on or prior to the Closing Date will be timely paid in full), and all necessary documents (including responses to office actions) and certificates have been timely filed for the purposes of maintaining such material Company Registered IP, in each case in accordance with applicable Laws and to avoid loss or abandonment thereof.

(d)

The Company or its Subsidiaries own all material Company Intellectual Property exclusively, free and clear of any and all Liens other than (i) Liens, defects or irregularities in title, covenants, restrictions, and other matters that are shown in public records and that would not, individually or in the aggregate, reasonably be expected to materially impair the value or continued use and operation of such Intellectual Property; (ii) non-exclusive object code licenses of Intellectual Property Rights; or (iii) contractual obligations entered into in the ordinary course of business, including licenses. Neither the Company nor any of its Subsidiaries has received any written notice or claim since January 1, 2017 challenging the Company’s use or practice, right to use or practice, right to register, or ownership of any material Company Intellectual Property. The Company has the sole and exclusive right to bring a claim or suit (and to recover any damages, royalties, costs or other recoverable amounts) against any other Person for past, present or future infringement of any material Company Intellectual Property.

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(e)

To the Company’s Knowledge, the Company has a valid, legal and enforceable right to use or practice under all Intellectual Property and Intellectual Property Rights licensed to the Company under any third-party Intellectual Property licenses, except as would not be material to the Company, taken as a whole, or the transactions contemplated by the Transaction Agreements. To the Company’s Knowledge, the Company Intellectual Property together with any Intellectual Property and Intellectual Property Rights licensed to the Company or any of its Subsidiaries under any third-party Intellectual Property licenses constitute all of the material Intellectual Property and material Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted.

(f)

Prior to or as of the date hereof, the Company has not granted to any Person, under any Company Intellectual Property, (i) any exclusive license or rights, or (ii) any express, formal covenant not to assert or enforce any material Company Intellectual Property (other than rights granted to customers, distributors, resellers, sales agents, marketing agents, contractors, manufacturers, logistics contractors, and product support contractors in the ordinary course of business) or (iii) non-exclusive license or rights that materially deviate in scope from the licenses granted by the Company in the ordinary course of business. No Company Intellectual Property that is exclusively licensed to any Person is used in or necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted in all material respects. The Company has not assigned any Intellectual Property or Intellectual Property Rights used in or necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted in all material respects. Other than with respect to (x) commercially available software products under standard end-user object code license agreements, (y) agreements entered into in the ordinary course of business consistent with past practice that do not involve obligations (continent or otherwise) of, or payments to, the Company in excess of $200,000 following the execution of this Agreement or (z) as set forth on Section 2.7(f) of the Company Disclosure Schedule, there are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership interests of any kind from a third party to Company relating to any material Company Intellectual Property, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other Person relating to any material Company Intellectual Property.

(g)

To the Company’s Knowledge, the Company’s and its Subsidiaries’ development, sale, advertising, marketing, distribution or other commercial exploitation of the products and services marketed and sold (or proposed to be marketed or sold) by the Company, and all of the other activities or operations of the business of the Company or any of its Subsidiaries, have not and do not infringe upon (directly, contributorily, by inducement or otherwise), misappropriate, dilute (solely with respect to Marks) or violate, any Intellectual Property or Intellectual Property Rights of any third party except as would not be material to the Company and its Subsidiaries, taken as a whole, or the transactions contemplated by the Transaction Agreements. Since January 1, 2017, neither the Company nor any of its Subsidiaries has received any written notice of any Action asserting that such infringement, misappropriation or violation has occurred. Since January 1, 2017, neither the Company nor any of its Subsidiaries has received any written request or invitation to take a license under any Patents owned by a third party.

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(h)

Since January 1, 2017, neither the Company nor any of its Subsidiaries has claimed or brought any Action, or provided any notice claiming that any third party has misappropriated, infringed, diluted (solely with respect to trademarks) or violated any material Company Intellectual Property or other material Intellectual Property Rights of the Company or any of its Subsidiaries (including any Intellectual Property or Intellectual Property Rights exclusively licensed to the Company or any of its Subsidiaries) nor, to the Company’s Knowledge, has any third party committed any such misappropriation, infringement, dilution or violation that could form the basis of such an Action or notice from the Company or any of its Subsidiaries, in each case in a manner that is or would be material to the Company and its Subsidiaries, taken as a whole, or the transactions contemplated by the Transaction Agreements.

(i)

No Company Intellectual Property or Company Licensed Intellectual Property is subject to any outstanding judgment, order or decree of any Governmental Entity restricting or limiting in any material respect the use or practice, right to use or practice, licensing or other exploitation thereof by the Company or any of its Subsidiaries.

(j)

The Company and its Subsidiaries implement policies and procedures materially consistent with generally accepted industry standards to identify and protect against viruses, worms, and other malicious Software routines adversely affecting the information technology systems used in connection with the operation of the Company and its Subsidiaries and their respective businesses. The Company and its Subsidiaries have disaster recovery and business continuity plans, procedures and facilities materially consistent with generally accepted industry standards for the business of the Company and its Subsidiaries. To the Company’s Knowledge, since January 1, 2017, there have been no unauthorized intrusions or breaches of the security of such information technology systems.

(k)

The Company has obtained and possesses valid licenses to use all of the Software programs present on the computers and other Software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s business, except as would not be material to the Company, taken as a whole. To the Company’s Knowledge, it will not be necessary to use any inventions of any of its employees or consultants (or Persons it currently intends to hire) made prior to their employment by the Company. To the Company’s Knowledge, each employee has assigned to the Company all intellectual property rights he or she owns that are related to the Company’s business as now conducted and as presently proposed to be conducted.

(l)

The Company has not embedded any Open Source Materials in any of its products generally available or in development in a manner which would require Company to disclose the source code of, or otherwise provide third-parties a free license to use, any material Company Intellectual Property. Since January 1, 2017, neither the Company nor any of its Subsidiaries has received any written notice or complaint that it has failed to comply with the terms and conditions of any license to any Open Source Materials in any material respect. For purposes of this Subsection 2.7 , the Company shall be deemed to have Knowledge of a patent right if the Company has actual Knowledge of the patent right or would be found to be on notice of such patent right as determined by reference to United States patent Laws.

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2.8

Noncontravention

Subsection 2.5

. The execution and delivery by the Company of the Transaction Agreements do not, and the consummation of the transactions contemplated by the Transaction Agreements will not, conflict with, or result in any violation or breach of, or default under, or give rise to a right of (or result in) termination, cancellation or acceleration of any obligation or to any obligation to make an offer to purchase or redeem any indebtedness or capital stock under, or to the loss of a benefit under, or result in the creation of any Lien upon any of the properties, rights or assets of the Company or any of its Subsidiaries under, or require any consent, waiver or approval of any Person pursuant to, any provision of (a) the Charter or Bylaws or the comparable organizational documents of any of the Company’s Subsidiaries, or (b) subject to the filings and other matters referred to in, (i) any material contract to which the Company or any of its Subsidiaries is a party or by which any of their respective properties, rights or assets are bound, (ii) any Law or any judgment, order or decree of any Governmental Entity, in each case applicable to the Company or any of its Subsidiaries or any of their respective properties, rights or assets, or (iii) any Governmental Authorizations of the Company or any of its Subsidiaries, except, in the case of this clause (b), as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

2.9

Compliance with Law; Gaming Approvals

(a)

Each of the Company and its Subsidiaries is, and since January 1, 2017 has been, in compliance with all Laws applicable to its business, operations, properties or assets, except as would not be material to the Company and its Subsidiaries, taken as a whole, or the transactions contemplated by the Transaction Agreements. Neither the Company nor any of its Subsidiaries has received, since January 1, 2017, any written notice or other written communication alleging a violation or potential violation of any Law by the Company or any of its Subsidiaries, which violation would be material to the Company and its Subsidiaries, taken as a whole, or the transactions contemplated by the Transaction Agreements. Since January 1, 2017, no material settlements have been entered into by the Company and the Company was not made aware in writing of any material Actions alleging a violation of any Laws applicable to the Company. The Company and each of its Subsidiaries have in effect all Governmental Authorizations required to own, lease and operate their properties and assets and to operate their respective businesses and operations in all material respects as currently conducted, there has occurred no material violation of, default under or event that would reasonably likely result in the revocation, non-renewal, adverse modification to or cancellation of any such Governmental Authorization and none of the Company or any of its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw or modify any such Governmental Authorization.

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(b)

The Company, its Subsidiaries and their respective officers, directors and employees and, to the Company’s Knowledge, its representatives acting on behalf of the Company and its Subsidiaries, have at all times complied with, and are currently in compliance with, the Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act and any similar applicable Law of any non-U.S. jurisdiction, or any other applicable Law that prohibits providing a thing of value to improperly influence government officials or other Persons (collectively, the “Anti-Corruption Laws”). Neither the Company nor any of its Subsidiaries, nor any of their respective officers, directors or employees nor, to the Company’s Knowledge, any of its representatives acting on behalf of the Company or its Subsidiaries, has taken or failed to take any action, either directly or indirectly, that constituted a violation of the Anti-Corruption Laws. Neither the Company nor any of its Subsidiaries, nor any of their respective officers, directors or employees nor, to the Company’s Knowledge, any of its representatives acting on behalf of the Company or its Subsidiaries has made, offered, authorized, promised, accepted or solicited, either directly or indirectly, any payment, contribution, gift, entertainment, bribe, rebate, kickback or any other thing of value, regardless of form or amount, to or from: (i) any official, employee or representative of a Governmental Entity, any political party or official thereof, any candidate for political office, or any other Persons; (ii) any director, officer, executive, employee or Person affiliated with an entity owned or controlled by a Governmental Entity, political party or candidate for political office; or (iii) any director, officer, executive or employee of a public international organization, or other Persons, to obtain or retain a competitive advantage, to receive favorable treatment in obtaining or retaining business or compensate for favorable treatment already secured, or to influence any action, inaction or decision. There have been no false, fictitious or misleading entries made in the books or records of the Company or any of its Subsidiaries relating to any illegal payment or secret or unrecorded fund and neither the Company nor any of its Subsidiaries has established or maintained a secret or unrecorded fund.

(c)

To the Company’s Knowledge, there are no facts which would be reasonably likely to result in the denial, revocation, limitation or suspension of any Gaming Approval required to be obtained by the Company or any of its officers, directors or employees for the consummation of the transactions contemplated by the Transaction Agreements or in connection with PNG’s ongoing ownership of equity interests in the Company and relationship with the Company or its Affiliates as contemplated by the Transaction Agreements.

2.10

Agreements; Actions

(a)

Except for the Transaction Agreements or as set forth on Section 2.10(a) of the Company Disclosure Schedule, there are no material agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $200,000, (ii) the license of any Patent, Copyright, Trademark, Trade Secret or other proprietary right to or from the Company other than with respect to (1) commercially available Software products under standard end-user license agreements and (2) agreements entered into in the ordinary course of business consistent with past practice that do not involve obligations (continent or otherwise) of, or payments to, the Company in excess of $200,000, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) an agreement, understanding, instrument or contract with any director, executive officer or stockholder of the Company or any of their respective Affiliates (other than the Company or any of its Subsidiaries) or immediate family members, (v) indemnification by the Company with respect to infringements of proprietary rights other than agreements entered into in the ordinary course of business consistent with past practice that do not involve obligations (continent or otherwise) of, or payments to, the Company in excess of $200,000, (vi) a partnership, joint venture, teaming agreement or similar arrangement or (vii) the conduct of gaming and related activities or the ownership or the operation, management and development of any gaming operations, in each case, relating to sports (a “Sports Gambling Contract”). For the sake of clarity, any agreements, understandings, instruments, contracts or proposed transactions meeting the descriptions in Sections 2.10(a)(i) (iii) , (iv) , (vi) and (vii) above shall be considered material, without limitation to other contracts that may be material to the Company or the transactions contemplated by the Transaction Agreements.

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(b)

Except as set forth on Section 2.10(b) of the Company Disclosure Schedule, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $100,000, (iii) made any loans or advances to any Person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than in the ordinary course of business. For the purposes of (a) and (b) of this Section 2.10 , all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection.

(c)

The Company is not a guarantor or indemnitor of any indebtedness of any other Person.

(d)

Each material contract of the Company is valid and binding on the Company or those Subsidiaries of the Company party thereto and, to the Company’s Knowledge, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that have not had and would not have, individually or in the aggregate, a Material Adverse Effect. The Company and each of its Subsidiaries, and, to the Company’s Knowledge, each other party thereto, has performed all material obligations required to be performed by it under each material contract of the Company in all material respects. There is no default under any material contract by the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party thereto, and no event or condition has occurred that constitutes a default on the part of the Company or any of its Subsidiaries or, to the Company’s Knowledge, any other party thereto under any such material contract, nor has the Company or any of its Subsidiaries received any written notice of any such default, event or condition, except where any such default, event or condition, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

2.11

Certain Transactions

(a)

Other than (i) standard employee benefits generally made available to all employees, (ii) standard assignment of invention, non-disclosure, non-competition and non-solicitation agreements and (iii) standard director and officer indemnification agreements approved by the Board, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors and/or stockholders, consultants or Key Employees, or any Affiliate or relative thereof.

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(b)

The Company is not indebted, directly or indirectly, to any of its directors, officers, or employees, or to their respective spouses, children, family members or relatives, or to any Affiliate of any of the foregoing, other than in connection with expenses or advances of expenses incurred in the ordinary course of business or employee relocation expenses and for other customary employee benefits made generally available to all employees. None of the Company’s stockholders, directors, officers or employees, or any members of their immediate families or relatives, or any Affiliate of the foregoing are, directly or indirectly, indebted to the Company or, to the Company’s Knowledge, have any (i) material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of the Company’s customers, suppliers, service providers, joint venture partners, licensees and competitors, (ii) direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company except that directors, officers, employees or stockholders of the Company may own stock in (but not exceeding one percent (1%) of the outstanding capital stock of) publicly traded companies that may compete with the Company; or (iii) financial interest in any material contract with the Company.

2.12

Rights of Registration and Voting Rights .

Except as provided in the Investor Rights Agreement, the Company is not under any obligation to register under the Securities Act any of its currently outstanding securities or any securities issuable upon exercise or conversion of its currently outstanding securities. To the Company’s Knowledge, except as contemplated in the Voting Agreement, no stockholder of the Company has entered into any agreements with respect to the voting of capital shares of the Company.

2.13

Property .

The property and assets that the Company owns are free and clear of all Liens, except for statutory Liens for the payment of current Taxes that are not yet delinquent and encumbrances and Liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets. With respect to the property and assets it leases, the Company is in material compliance with such leases and, to its Knowledge, holds a valid leasehold interest free of any Liens other than those of the lessors of such property or assets. The Company does not own any real property.

2.14

Financial Statements .

Subsection 2.14

The Company has made available to PNG its unaudited financial statements as of and for the nine months ended September 30, 2019 and unaudited financial statements as of and for the fiscal year ended December 31, 2018 (including balance sheet, income statement and statement of cash flows), copies of which are included inof the Company Disclosure Schedule (collectively, the “”). The Financial Statements (i) were prepared in a manner consistent in all material respects with the books and records of the Company and its Subsidiaries, (ii) have been prepared in all material respects in accordance with GAAP (except as may be indicated in the notes to such financial statements) applied on a consistent basis during the periods presented (except as may be indicated in the notes thereto) and (iii) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited quarterly financial statements, to normal and recurring year-end adjustments that are not reasonably expected to be material in amount). The financial and accounting books and records of the Company and its Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP (to the extent applicable) and any applicable Laws. Except as set forth in the Financial Statements, the Company has no liabilities or obligations (whether absolute, accrued, contingent, fixed or otherwise) other than (x) contingent liabilities of a nature that would not be required to be disclosed on a financial statement prepared in accordance with GAAP or otherwise disclosed or described anywhere in a quarterly report on Form 10-Q or annual report on Form 10-K prepared in accordance with applicable Law if the Company were a public company, (y) liabilities incurred in the ordinary course of business subsequent to September 30, 2019 and (z) liabilities which, individually or in the aggregate, are not material to the Company. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any off-balance sheet joint venture, off-balance sheet partnership or any other “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).

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2.15

Changes .

Since September 30, 2019, there has or have not been:

(a)

any change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the Financial Statements, except changes in the ordinary course of business that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company;

(b)

any damage, destruction or loss, whether or not covered by insurance, that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(c)

any waiver or compromise by the Company of a valuable right or of a material debt owed to it;

(d)

any satisfaction or discharge of any Lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and the satisfaction or discharge of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(e)

any material change to a material contract or agreement by which the Company or any of its assets is bound or subject;

(f)

any increase in excess of five percent (5%) in any compensation payable to any officer, Key Employee or other individual that has received in the twelve months preceding the execution hereof or is reasonably anticipated to receive in the twelve months subsequent to the execution hereof compensation of more than $200,000;

(g)

any resignation or termination of employment of any officer or Key Employee of the Company;

(h)

any Lien created by the Company, with respect to any of its material properties or assets, except (i) Liens for Taxes not yet due or payable or which are being contested in good faith by appropriate proceedings, and (ii) Liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets;

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(i)

any loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business;

(j)

any declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by the Company;

(k)

any sale, assignment or transfer of any Company Intellectual Property that could reasonably be expected to result in a Material Adverse Effect;

(l)

receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company;

(m)

any material Action initiated or, to the Company’s Knowledge, threatened in writing against the Company;

(n)

to the Company’s Knowledge, any other event or condition of any character, other than events affecting the economy or the Company’s industry generally, that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; or

(o)

any arrangement or commitment by the Company to do any of the things described in this Subsection 2.15 .

2.16

Employee Matters .

(a)

As of the date hereof, the Company employs 216 full-time employees and one (1) part-time employee and engages thirteen (13) consultants or independent contractors.

(b)

To the Company’s Knowledge, none of its employees is 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 materially interfere with such employee’s ability to promote the interest of the Company or that would conflict with the Company’s business. Neither the execution or delivery of the Transaction Agreements, nor the carrying on of the Company’s business by the employees of the Company, nor the conduct of the Company’s business as now conducted and as presently proposed to be conducted, will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated.

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(c)

The Company is not delinquent in payments to any of its employees, consultants, or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it to the date hereof or amounts required to be reimbursed to such employees, consultants or independent contractors, except as would not be material to the Company. The Company has complied in all material respects with all applicable state and federal equal employment opportunity Laws and with other Laws related to employment, including those related to wages, hours, worker classification and collective bargaining. The Company has withheld and paid to the appropriate Governmental Entity or is holding for payment not yet due to such Governmental Entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, Taxes, penalties or other sums for failure to comply with any of the foregoing.

(d)

To the Company’s Knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee following the Purchase, nor does the Company have a present intention to terminate the employment of any of the foregoing. Except as set forth in Subsection 2.16(d)(i) of the Company Disclosure Schedule, the employment of each employee of the Company is terminable at the will of the Company. Except as set forth in Subsection 2.16(d)(ii) of the Company Disclosure Schedule or as required by Law, upon termination of the employment of any such employees, no severance or other payments will become due. Except as set forth in Subsection 2.16(d)(iii) of the Company Disclosure Schedule, the Company has no policy, practice, plan or program of paying severance pay or any form of severance compensation in connection with the termination of employment services.

(e)

Except as set forth on Subsections 2.2(c) and 2.16(e) of the Company Disclosure Schedule or in connection with the transactions contemplated hereby, the Company has not made any representations regarding equity incentives to any officer, employee, director or consultant.

(f)

Each former Key Employee whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.

(g)

Subsection 2.16(g) of the Disclosure Schedule sets forth each Employee Benefit Plan.

(h)

(i) each of the Employee Benefit Plans has been operated and administered in all material respects with applicable Laws, including the Code; (ii) each of the Employee Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code is so qualified, and there are no existing circumstances or any events that have occurred that could reasonably be expected to adversely affect the qualified status of any such plan; (iii) no Employee Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code; (iv) no Employee Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of the Company or its subsidiaries beyond their retirement or other termination of service, other than (A) coverage mandated by applicable law or (B) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (v) no liability under Title IV of ERISA has been incurred by the Company, its subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to the Company, its subsidiaries or any ERISA Affiliate of incurring a liability thereunder; (vi) no Employee Benefit Plan is a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; (vii) all contributions or other amounts payable by the Company or its subsidiaries as of the Closing Date pursuant to each Employee Benefit Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP; and (viii) there are no pending or, to the Company’s Knowledge, threatened or anticipated claims (other than routine claims for benefits) by, on behalf of or against any of the Employee Benefit Plans or any trusts related thereto.

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(i)

Each of the Founders and Key Persons is not and has not been (i) subject to voluntary or involuntary petition under the federal bankruptcy Laws or any state insolvency Law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (ii) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (iii) subject to any order, judgment or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (iv) found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission (the “SEC”) or the Commodity Futures Trading Commission to have violated any federal or state securities, commodities, or unfair trade practices Law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.

(j)

To the Company’s Knowledge, since January 1, 2016, (i) no allegations of sexual harassment or related misconduct have been made against any current or former director, officer or employee of the Company or any of its Subsidiaries and (ii) neither the Company nor any of its Subsidiaries are a party to any settlement agreements related to allegations of sexual harassment or misconduct by any current or former director, officer or employee.

(k)

Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any material payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of the Company or any of its Subsidiaries from the Company or any of its Subsidiaries under any Employee Benefit Plan or otherwise, (ii) materially increase any benefits otherwise payable under any Employee Benefit Plan or (iii) result in any acceleration of the time of payment, funding or vesting of any such benefits.

(l)

The Company has no obligations to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise.

(m)

There are no labor unions, works councils, or other labor organizations representing any employees employed by the Company or any of its Subsidiaries. Except as would not reasonably be expected to have a Material Adverse Effect, since January 1, 2016, there has not occurred and, to the Knowledge of the Company, there is not threatened, (i) any strike, slowdown, picketing, material labor-related arbitration, material grievance, or work stoppage by, or lockout of, or to the Knowledge of the Company, union organizing activities with respect to, any employees of the Company or any of its Subsidiaries, or (ii) any application for representation or certification of a labor union, works council, or other labor organization seeking to represent any employees of the Company or any of its Subsidiaries.

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2.17

Taxes .

There are no material Taxes due and payable by the Company or any of its Subsidiaries which have not been paid (other than Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves, in accordance with GAAP, are reflected in the Company’s most recent Financial Statements). There have been no examinations, claims, audits or other proceedings with respect to material Taxes or material Tax Returns of the Company or any of its Subsidiaries by any applicable Governmental Entity (and none have been threatened in writing). Neither the Company nor any of its Subsidiaries has received written notice from a taxing authority (a) of any material deficiency, assessment or proposed adjustment to its Taxes or (b) in a jurisdiction in which the Company or any of its Subsidiaries have not filed Tax Returns that the Company or any of its Subsidiaries are or may be subject to Tax by, or required to file Tax Returns in, that jurisdiction. The Company and each of its Subsidiaries has duly filed all material Tax Returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations with respect to any material Taxes for any year. All such Tax Returns are true, correct and complete in all material respects. Other than in connection with the transactions contemplated by this Agreement, neither the Company nor any of its Subsidiaries has incurred any Taxes other than in the ordinary course of business since the date of its most recent Financial Statements, and the Company has made adequate provisions on its most recent Financial Statements in accordance with GAAP for all Taxes with respect to the business, properties and operations of the Company and its Subsidiaries that were unpaid as of the date of such Financial Statements. The Company and each of its Subsidiaries has withheld or collected from each payment made to each of its employees, independent contractors and other third parties, the amount of all material Taxes required, and has paid the same to the proper tax authority. Neither the Company nor any of its Subsidiaries (a) has been a member of an affiliated group (within the meaning of Section 1504 of the Code) filing a combined, consolidated, or unitary Tax Return (other than a group the common parent of which was the Company) or (b) has any liability for the Taxes of any Person by reason of Treasury Regulations Section 1.1502-6 (or any analogous provision of state, local, or foreign law), contract (other than commercial agreements entered into in the ordinary course of business and the primary purpose of which does not relate to Taxes), transferee or successor liability, operation of law or otherwise. Neither the Company nor any of its Subsidiaries is a party to or is bound by any written Tax sharing agreement, Tax indemnity or similar agreement with any Person with respect to Taxes, other than commercial agreements entered into in the ordinary course of business and the primary purpose of which does not relate to Taxes. Neither the Company nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b). Neither the Company nor any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intending to qualify for tax-free treatment under Section 355 of the Code at any time since January 1, 2017. The Company is not now, and has not during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code been, a “United States real property holding corporation” as defined in the Code and any applicable regulations promulgated thereunder.

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2.18

Insurance .

(a)

(b)

(c)

The Company and each of its Subsidiaries is covered by valid and currently effective insurance policies issued in favor of the Company or one or more of its Subsidiaries that it believes are adequate for companies of similar size in the industries and locations in which the Company operates, except where the failure to have such policies would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has made available to PNG copies of all material insurance policies issued in favor of the Company or any of its Subsidiaries, or pursuant to which the Company or any of its Subsidiaries is a named insured or otherwise a beneficiary, as well as any material historic incurrence-based policies still in force as of the date of this Agreement (such policies, the “”). With respect to each such Material Policy, (a) such Material Policy is in full force and effect and all premiums due thereon have been paid, (b) neither the Company nor any of its Subsidiaries is in breach or default, and has not taken any action or failed to take any action which would constitute such a breach o