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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): September 6, 2023
SILVERSUN TECHNOLOGIES, INC. |
(Exact
name of registrant as specified in its charter) |
Delaware |
|
001-38063 |
|
16-1633636 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
120 Eagle Rock Ave
East Hanover, NJ 07936
(Address
of Principal Executive Offices)
(973)
396-1720
Registrant’s
telephone number, including area code
Check
the appropriate box below if the 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any
of the following provisions:
☐ |
Written
communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)). |
Securities
registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock, par value $0.00001 per share |
|
SSNT |
|
The NASDAQ Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405)
or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. Entry into a Material Definitive Agreement
On
September 6, 2023, SilverSun Technologies, Inc. (the “Company”) entered into the Sixth Amendment to Merger Agreement (the
“Amendment”) with Rhodium Enterprises Acquisition Corp., a Delaware corporation and direct wholly owned subsidiary of the
Company, Rhodium Enterprises Acquisition LLC, a Delaware limited liability company and direct wholly owned subsidiary of the Company,
and Rhodium Enterprises, Inc., a Delaware corporation (“Rhodium”), amending that certain Agreement and Plan of Merger, dated
as of September 29, 2022 by and among the parties referenced above (as amended from time to time, the “Merger Agreement”).
The Amendment removes the no-shop and similar provisions from the Merger Agreement and provides that the parties may enter into certain
transactions without the consent of the other Party (the “Alternative Transactions”). If a party enters into an Alternative
Transaction, it must pay the other party, at the time of closing of such Alternative Transaction, the sum of $3,250,000 (the “Payment
Obligation”). A party’s receipt of such payment will be such party’s sole and exclusive remedy against the other party
in connection with the related termination of the Merger Agreement. If a party becomes responsible for a Payment Obligation, the other
party will not, under any circumstances, be subject to a future Payment Obligation. Neither party is permitted to enter into a definitive
agreement with respect to an Alternative Transaction on or after the date the Company’s registration statement on Form S-4 is declared
effective by the SEC. The Amendment also added provisions which initially require Rhodium’s consent and thereafter notice to Rhodium
before the Company can set a record date for the Parent Stockholders Meeting (as such term is defined in the Merger Agreement) or can
cause the Company’s registration statement on Form S-4 to be declared effective and mailed to the stockholders of the Company.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
September 8, 2023
|
SILVERSUN
TECHNOLOGIES, INC. |
|
|
|
|
By: |
/s/
Mark Meller |
|
|
Name: |
Mark Meller |
|
|
Title: |
Chief Executive Officer |
2
Exhibit 2.7
SIXTH
AMENDMENT TO
MERGER
AGREEMENT
This
SIXTH AMENDMENT TO MERGER AGREEMENT (this “Amendment”), executed and effective as of September 6, 2023 (the
“Effective Date”), is made by and among SilverSun Technologies, Inc., a Delaware corporation (“Parent”),
Rhodium Enterprises Acquisition Corp., a Delaware corporation and direct wholly owned subsidiary of Parent (“Merger Sub I”),
Rhodium Enterprises Acquisition LLC, a Delaware limited liability company and direct wholly owned subsidiary of Parent (“Merger
Sub II” and together with Parent and Merger Sub I, the “Parent Entities”), and Rhodium Enterprises,
Inc., a Delaware corporation (the “Company”, and collectively with the Parent Entities, the “Parties”),
to that certain Agreement and Plan of Merger, dated as of September 29, 2022 (as amended, the “Merger Agreement”),
by and among the Parties.
WITNESSETH:
WHEREAS,
in accordance with Section 8.08 of the Merger Agreement, the Merger Agreement may be amended by an instrument in writing signed by the
Parent Entities and the Company;
WHEREAS,
the Merger Agreement was executed on September 29, 2022, and previously amended on each of October 20, 2022; December 21, 2022; March
13, 2023; April 28, 2023; and July 11, 2023; and
WHEREAS,
each of the Parent Entities and the Company desire to further amend the Merger Agreement as set forth in this Amendment.
NOW,
THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, each of the Parent Entities and the Company agree as follows:
| 1. | Section
5.01(c) is hereby deleted and replaced in its entirety with the following: |
(c)
Capital Stock. (i) adjust, split, combine or reclassify its capital stock, (ii) redeem, purchase or otherwise acquire, directly
or indirectly, any shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its
capital stock, (iii) issue, deliver or sell to any Continuing Company Employee any additional shares of its capital stock or any securities
convertible or exchangeable into or exercisable for any shares of its capital stock or such securities (other than pursuant to the vesting,
exercise or settlement of awards under Company Equity Plan (including Company RSUs) outstanding as of the date of this Agreement and
grants of awards under the Company Equity Plan (including Company RSUs) in the Company’s sole discretion) or (iv) enter into any
Contract with respect to the sale, voting, registration or repurchase of its capital stock (other than in connection with an Alternative
Transaction);
| 2. | Section
5.01(g) is hereby deleted in its entirety. |
| 3. | Section
5.02(c) is hereby deleted and replaced in its entirety with the following: |
(c)
Capital Stock. (i) adjust, split, combine or reclassify its capital stock, (ii) redeem, purchase or otherwise acquire, directly
or indirectly, any shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its
capital stock, (iii) issue, deliver or sell to any Parent Employee any additional shares of its capital stock or any securities convertible
or exchangeable into or exercisable for any shares of its capital stock or such securities (other than pursuant to the exercise of Parent
Stock Options outstanding as of the date of this Agreement and in accordance with their terms) or (iv) enter into any Contract with respect
to the sale, voting, registration or repurchase of its capital stock (other than in connection with an Alternative Transaction);
| 4. | Section
5.02(e) is hereby deleted in its entirety. |
| 5. | Section
5.02(f) is hereby deleted and replaced in its entirety with the following: |
(f)
Acquisitions. Acquire, by merger, consolidation, acquisition of equity interests or assets, or otherwise, any business, any material
assets or properties, or any corporation, partnership, limited liability company, joint venture or other business organization or division
of such business organization, if the consideration paid by the Parent Entities in connection with any such acquisition individually,
or all such acquisitions in the aggregate, would exceed $7,000,000 (other than in connection with an Alternative Transaction);
| 6. | Section
5.04 is hereby deleted and replaced in its entirety with the following: |
|
Section 5.04 |
Intervening Events; Alternative Transactions. |
(a)
Reserved.
(b)
Reserved.
(c)
No Change in Recommendation. Prior to the Specified Time:
(i)
the Parent Board shall not, except as set forth in this Section 5.04, withhold, amend, withdraw, qualify or modify (and the Parent
Board shall not publicly propose to withhold, amend, withdraw, qualify or modify the Parent Board Recommendation), in a manner adverse
to the Company, including with respect to its recommendation to the stockholders of Parent that they vote in favor of approving and adopting
this Agreement, the Merger, and the Transactions, the Parent Board Recommendation;
(ii)
the Parent Board shall include the Parent Board Recommendation in the Parent Registration Statement and the Proxy Statement and shall
use reasonable best efforts to solicit such approval;
(iii)
[Reserved];
(iv)
[Reserved];
(v)
[Reserved];
(vi)
the Parent Board (or any committee of the Parent Board) shall not otherwise resolve, propose or agree to do any of the foregoing actions
described in clauses (i) through (ii) (any action described in clauses (i) through (ii), a “Parent
Adverse Recommendation Change”); and
(vii)
[Reserved].
(viii)
Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Specified Time, the Parent Board may make
a Parent Adverse Recommendation Change in response to an Intervening Event if the Parent Board determines in good faith, after consultation
with its outside legal counsel, that the failure to do so would be a breach of the Parent Board’s fiduciary duties under applicable
Law, only if all of the following conditions are satisfied:
(A)
Parent shall have first provided the Company an Intervening Event Notice at least five Business Days in advance advising the Company
that Parent intends to make a Parent Adverse Recommendation Change (it being understood and hereby agreed that the delivery and receipt
of any such Intervening Event Notice shall not, in and of itself, be deemed to be a Parent Adverse Recommendation Change) and specifying,
in reasonable detail, the Intervening Event;
(B)
during the applicable Intervening Event Notice Period (or any mutually agreed extension or continuation thereof), Parent and its Representatives
shall negotiate in good faith with the Company and its officers, directors and other Representatives regarding any changes to the terms
of this Agreement and any other proposals made by the Company so that a failure to effect a Parent Adverse Recommendation Change in response
to such Intervening Event would no longer be inconsistent with the Parent Board’s fiduciary duties under applicable Law;
(C)
the Company does not make, within the applicable Intervening Event Notice Period (or any extension or continuation thereof) after the
receipt of such notice, a proposal that would, in the good faith judgment of the Parent Board (after consultation with outside legal
counsel), cause the failure to effect a Parent Adverse Recommendation Change in response to such Intervening Event to no longer be inconsistent
with the Parent Board’s fiduciary duties under applicable Law (it being understood and agreed that any material change in any event,
occurrence or facts relating to such Intervening Event shall require a new Intervening Event Notice with a new Intervening Event Notice
Period ending on the day that is three Business Days after such material change); and
(D)
following the Intervening Event Notice Period, the Parent Board shall have determined in good faith (after consultation with its outside
legal counsel) that the failure to effect a Parent Adverse Recommendation Change in response to such Intervening Event would continue
to be a breach of the Parent Board’s fiduciary duties under applicable Law.
(ix)
[Reserved].
(d)
Certain Permitted Disclosure. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement
shall prohibit Parent, any of its Subsidiaries or the Parent Board from (i) taking and disclosing to its stockholders a position with
respect to a tender offer contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, or from issuing a “stop,
look and listen” statement pending disclosure of its position thereunder (none of which, in and of itself, shall be deemed to constitute
a Parent Adverse Recommendation Change), or (ii) making any disclosure to Parent’s stockholders if, in the good faith judgment
of the Parent Board, after consultation with outside counsel, failure to so disclose would reasonably likely result in a breach of its
fiduciary duties under applicable Law, it being understood that nothing in the foregoing shall be deemed to permit Parent or the Parent
Board (or a committee of the Parent Board) to effect a Parent Adverse Recommendation Change other than in accordance with Section
5.04(c).
(e)
[Reserved].
(f)
Alternative Transaction. Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, (x) nothing in
this Agreement shall prohibit the Parent Entities, the Company, or their respective Subsidiaries and Representatives from entertaining,
soliciting, initiating, responding to, proposing, encouraging, facilitating, assisting in, entering into an agreement with respect to,
and, subject to the Payment Obligation (if applicable), closing upon a transaction, directly or indirectly, (A) involving the sale of
such Party or a material Subsidiary of such Party to a third party resulting in a Change of Control (defined below) of such Party, (B)
involving the sale of (x) assets of such Party, in a single transaction or series of related transactions, with a value in the aggregate
amount of $100,000,000 or more to a third party or (y) all or substantially all of the assets of such Party to a third party (other
than a sale of all or substantially all of a Party’s assets to a wholly-owned Subsidiary of such Party), or (C) in the case
of the Parent, involving any merger, consolidation, share exchange, business combination or other similar transaction that is required
to be submitted to a vote at a meeting of the stockholders of Parent (each, an “Alternative Transaction”),
and (y) neither Parent’s nor the Company’s consent, as applicable, shall be required to take any of the actions set forth
in Section 5.01 or Section 5.02, respectively, of this Agreement, in connection with any Alternative Transaction; provided,
that, neither Party shall be permitted to enter into a definitive agreement with respect to an Alternative Transaction on or after the
date the Parent Registration Statement is declared effective by the SEC in accordance with the terms of this Agreement. For the avoidance
of doubt, this Agreement and the transactions contemplated hereby shall not be deemed to be an Alternative Transaction. A “Change
of Control” of a Party means the occurrence of any of the following events or series of events: (a) any Person or any group
of Persons acting together that would constitute a “group” for purposes of Section 13(d) of the Securities and Exchange Act
of 1934, or any successor provisions thereto (excluding a corporation or other entity owned, directly or indirectly, by the equityholders
of such Party or its material Subsidiary, as applicable, in substantially the same proportions as their ownership of securities of the
Party or the material Subsidiary of such Party, as applicable) is or becomes the beneficial owner, directly or indirectly, of securities
of such Party or the material Subsidiary of such Party, as applicable, representing more than 50% of the combined voting power of the
Party’s or material Subsidiary’s then outstanding voting securities; (b) there is consummated a merger, share exchange or
consolidation of such Party or material Subsidiary of such Party with any other corporation or other entity, and, immediately after the
consummation of such merger, share exchange or consolidation, either (i) the members of the board of directors (or similar governing
body) immediately prior to the merger, share exchange or consolidation do not constitute at least a majority of the members of the board
of directors (or similar governing body) of the company surviving the merger or, if the surviving company is a Subsidiary, the ultimate
parent thereof, or (ii) the voting securities of such Party or material Subsidiary of such Party immediately prior to such merger, share
exchange or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power of the then
outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary,
the ultimate parent thereof; or (c) the equityholders of such Party or material Subsidiary of such Party approve a plan of complete liquidation
or dissolution of such Party, as applicable.
| 7. | Section
5.05(c) is hereby deleted and replaced in its entirety with the following: |
(c)
Parent shall use its reasonable best efforts to (i) respond to any comments on the Parent Registration Statement and Form 10 or requests
for additional information from the SEC as soon as practicable after receipt of any such comments or requests (including, in the event
the Company issues and sells shares of preferred stock in accordance with Section 5.01(c), provide the SEC with all information reasonably
necessary to amend the Parent Registration Statement or the Form 10), (ii) have the Parent Registration Statement and the Form 10 cleared
by the SEC as promptly as practicable following their filing with the SEC, (iii) prior to or during the 5 Business Day period following
the date the SEC confirms that it has no further comments on the Parent Registration Statement, subject to receipt of prior written consent
of the Company, and thereafter, subject to 24 hours advance written notice to the Company, set a record date for the Parent Stockholders
Meeting, (iv) during the 5 Business Day period following the date the SEC confirms that it has no further comments on the Parent Registration
Statement, subject to receipt of prior written consent of the Company, and thereafter, subject to 24 hours advance written notice to
the Company, cause the Parent Registration Statement to be declared effective and mailed to the stockholders of Parent as promptly as
practicable, and (v) cause the Form 10 to become automatically effective sixty days from its filing, if not sooner. For the avoidance
of doubt and except as otherwise provided in (iii) and (iv) above, Parent agrees that it shall not set a record date of the Parent Stockholders
Meeting or cause the Parent Registration Statement to be declared effective without the prior written consent of the Company (which may
be withheld in the Company’s sole discretion). Parent shall promptly (A) notify the Company upon the receipt of any such comments
or requests and (B) provide the Company with copies of all correspondence relating to the Parent Registration Statement and Form 10 between
Parent and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Before responding to any such comments
or requests or the filing or mailing of the Parent Registration Statement and the Form 10, Parent (x) shall provide the Company with
a reasonable opportunity to review and comment on any drafts of the Parent Registration Statement the Form 10 and related correspondence
and filings and (y) shall include in such drafts, correspondence and filings all comments reasonably proposed by the Company.
| 8. | Section
5.11 is hereby deleted and replaced in its entirety with the following: |
Section
5.11 Public Announcements. The Parties shall consult with each other before issuing any press release or otherwise making
any public statements or other public communication about this Agreement, any Ancillary Agreement or any of the Transactions. No Party
shall issue any such press release or make any such public statement prior to such consultation and any such prelease or public statement
or other public communication shall be subject to the prior mutual approval of Parent and the Company (which approval shall not be unreasonably
withheld, conditioned or delayed by either Party), except to the extent required by applicable Law or Nasdaq rules, in which case that
Party shall use its reasonable best efforts to consult with the other Party before issuing any such release or making any such public
statement; provided, however, subject to Section 5.04, that prior approval shall not be required, and no Party shall
be required to consult with any other Party in connection with, or provide the other an opportunity to review or comment upon, any press
release or other public statement or comment to be issued or made in connection with any transaction permitted under Section 5.04(f)
or with respect to any Takeover Proposal. Notwithstanding the foregoing, without the prior consent of the other parties, the Company
or Parent may (a) communicate with its respective customers, vendors, suppliers, financial analysts, investors and media Representatives
in a manner consistent with its past practice in compliance with applicable Law to the extent such communications consist of information
included in a press release or other document previously approved for external distribution by the other Party, (b) issue public statements
or disseminate information to the extent solely related to the operation of the business of such Party and (c) to the extent any proposed
release or statement is substantially equivalent to the information that has previously been made public without breach of the obligation
under this Section 5.11. Each of Parent and the Company will issue a joint press release announcing the execution of this Agreement.
| 9. | Section
5.16 is hereby deleted in its entirety and replaced with the following: |
Section
5.16 Notification of Certain Matters. The Company shall give prompt notice to Parent, and Parent shall give prompt
notice to the Company, of (a) the occurrence of any event known to it which would reasonably be expected to, individually or in the
aggregate cause to be unsatisfied in any material respect at any time prior to the Effective Time any condition, with respect to
Parent, set forth in Sections 6.01 and 6.03, and with respect to the Company, set forth in Sections 6.01 or 6.02,
(b) any action, suit, proceeding, inquiry or known investigation pending or, to the Knowledge of the Company or Parent, threatened
which questions or challenges the validity of this Agreement or the ability of any party to consummate the Transactions or (c) entry
into a definitive agreement with respect to an Alternative Transaction; provided, however, that the delivery of any
notice pursuant to this Section 5.16 shall not limit or otherwise affect the remedies available under this Agreement to the
party receiving such notice nor shall the party giving such notice be prejudiced with respect to any such matters solely by virtue
of having given such notice.
| 10. | Section
7.02 is hereby deleted and replaced in its entirety with the following: |
Section
7.02 Termination by Either Parent or the Company. This Agreement may be terminated, and the Transactions abandoned,
by either Parent or the Company at any time before the First Effective Time, by written notice from such Party to the other
Party:
(a)
if the Closing has not occurred on or before September 30, 2023 (the “Termination Date”), except that the right
to terminate this Agreement under this Section 7.02(a) shall not be available to any Party who is then in material breach of this Agreement;
(b)
the Requisite Parent Vote has not obtained by reason of the failure to obtain the required vote at a Parent Stockholders Meeting (or
any adjournment or postponement of such meeting) duly convened for such purpose, except that the right to terminate this Agreement under
this Section 7.02(b) shall not be available to Parent where the failure to obtain the Requisite Parent Vote has been caused by
the action or failure to act either of the Parent Entities and such action or failure to act constitutes a material breach by any of
the Parent Entities of this Agreement;
(c)
if any Law or Order is enacted, issued, promulgated or entered by a Governmental Authority of competent jurisdiction (including Nasdaq)
that permanently enjoins, or otherwise prohibits the consummation of the Transactions, and (in the case of any Order) such Order has
become final and nonappealable; or
(d)
either Party enters into a definitive agreement with respect to an Alternative Transaction.
| 11. | Section
7.03(b) is hereby deleted and replaced in its entirety with the following: |
(a)
if (i) the Parent Board approves, endorses, solicits or recommends to stockholders an Alternative Transaction or (ii) a tender offer,
exchange offer or other transaction for any outstanding shares of capital stock of a Parent Entity is commenced before obtaining the
Requisite Parent Vote and the Parent Board fails to recommend against acceptance of such Alternative Transaction, tender offer, exchange
offer or other transaction by its stockholders within ten Business Days after commencement of such Alternative Transaction, tender offer,
exchange offer or other transaction;
| 12. | The
following shall be added in its entirety to Article VII as Section 7.06: |
Section
7.06 Fees and Expenses Following Termination. (a) If this Agreement is terminated by either Party pursuant to Section
7.02(d) and the Party that entered into the definitive agreement with respect to an Alternative Transaction that resulted in such
termination pursuant to Section 7.02(d) subsequently completes such Alternative Transaction, then such Party shall pay, or cause
to be paid, to the other Party (Parent or the Company, as applicable), by wire transfer of immediately available funds, an amount equal
to $3,250,000 (the “Payment Obligation”) at the time of the closing of such Alternative Transaction. For the
avoidance of doubt, the Parties agree that (x) if such Alternative Transaction that resulted in such termination pursuant to Section
7.02(d) is ultimately not consummated, then no Payment Obligation will be due or payable hereunder, and (y) if a Party becomes responsible
for a Payment Obligation hereunder, the other Party shall not, under any circumstances, be subject to a Payment Obligation.
(b)
Parent and the Company acknowledge that the fees and the other provisions of this Section 7.06 are an integral part of the Transactions
and that, without these agreements, Parent and the Company would not enter into this Agreement.
(c)
Notwithstanding anything to the contrary in this Agreement, but subject to Section 7.05 and Section 8.16, if a Parent Entity
is required to pay the Payment Obligation as a result of a termination of this Agreement as contemplated in Section 7.06(a), then
the Company’s right to receive payment of the Payment Obligation pursuant to Section 7.06(a) shall be the sole and exclusive
remedy (whether at law, in equity, in contract, tort or otherwise) of the Company and its Affiliates for (A) the damages suffered as
a result of the failure of the Transactions to be consummated and (B) any other damages suffered as a result of or in connection with
this Agreement and the Transactions, and upon payment of the Payment Obligation in accordance with this Section 7.06, none of
the Parent Entities or any of their respective Affiliates, respective current or former stockholders, directors, managers, officers,
employees, agents, advisors or other Representatives (collectively, the “Parent Related Parties”) shall have
any further Liability or obligation relating to or arising out of this Agreement or the Transactions; provided, that the foregoing
shall not impair the rights of the Company, if any, to obtain an order of specific performance in accordance with Section 8.16.
The Parties acknowledge and agree that in no event will (i) the Parent Entities be required to pay the Payment Obligation on more than
one occasion or (ii) in the event the Payment Obligation becomes due and payable by Parent, will any Parent Entity have Liability for
monetary damages (including monetary damages in lieu of specific performance) in the aggregate in excess of the Payment Obligation for
breaches of this Agreement (whether willfully, intentionally, unintentionally or otherwise) or failure to perform under this Agreement
(whether willfully, intentionally, unintentionally or otherwise).
(d)
Notwithstanding anything to the contrary in this Agreement, but subject to Section 7.05 and Section 8.16, if the Company
is required to pay the Payment Obligation as a result of a termination of this Agreement as contemplated in Section 7.06(a), then,
Parent’s right to receive payment of the Payment Obligation pursuant to Section 7.06(a) shall be the sole and exclusive
remedy (whether at law, in equity, in contract, tort or otherwise) of the Parent Entities and their respective Affiliates for (A) the
damages suffered as a result of the failure of the Transactions to be consummated and (B) any other damages suffered as a result of or
in connection with this Agreement and the Transactions, and upon payment of the Payment Obligation in accordance with this Section
7.06, none of the Company or any of its Affiliates, respective current or former stockholders, directors, managers, officers, employees,
agents, advisors or other Representatives (collectively, the “Company Related Parties”) shall have any further
Liability or obligation relating to or arising out of this Agreement or the Transactions. The Parties acknowledge and agree that in no
event will (i) the Company be required to pay the Payment Obligation on more than one occasion, or (ii) in the event the Payment Obligation
becomes due and payable by the Company, will the Company have Liability for monetary damages (including monetary damages in lieu of specific
performance) in the aggregate in excess of the Payment Obligation for breaches of this Agreement (whether willfully, intentionally, unintentionally
or otherwise) or failure to perform under this Agreement (whether willfully, intentionally, unintentionally or otherwise).
(e)
Except as set forth in Section 5.04(f) and this Section 7.06, all Expenses incurred in connection with this Agreement and
the Transactions shall be paid in accordance with the provisions of Section 5.12.
| 13. | Section
8.01(iii) is hereby deleted in its entirety. |
| 14. | Sections
8.01(vvv)-(xxx) are hereby deleted in their entirety. |
| 15. | Section
8.16 is hereby deleted and replaced in its entirety with the following: |
Section
8.16 Specific Performance. The Parties agree that irreparable injury would occur if any of the provisions of this
Agreement are not performed in accordance with their specific terms or are otherwise breached, and each Party further agrees that,
(a) notwithstanding the Payment Obligation provided for in this Agreement, damages to such Party caused by the non-occurrence of the
Closing, including damages related to reputational harm, customer or employee losses, increased costs, harm to such Party’s
business, and/or a reduction in the actual or perceived value of such Party or any of its direct or indirect Subsidiaries, would be
difficult or impossible to calculate, (b) the provisions of Section 7.06 are not intended to and do not adequately compensate
such Party for the harm that would result from a breach by the other Party, and will not be construed to diminish or otherwise
impair in any respect any of such Party’s rights to an injunction, specific performance or other equitable relief, and (c) the
right of specific performance is an integral part of this Agreement and without that right such Party would not have entered into
this Agreement. Further, it is explicitly agreed that each Party shall have the right to an injunction, specific performance or
other equitable relief with respect to the other Party’s obligations to consummate the Transactions. It is further agreed that
each Party shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches or
threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of
Chancery of the State of Delaware or other court of the United States as specified in Section 8.05, and the Parties waive any
requirement for the posting of any bond or similar collateral in connection with any such equitable relief. Each Party agrees that
it will not oppose the granting of an injunction or specific performance on the basis that (i) the other Party has an adequate
remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. The foregoing
notwithstanding, each Party agrees that its rights under this Section 8.16 shall terminate upon its receipt from the other
Party of the Payment Obligation.
| 16. | Except
as expressly amended or modified hereby, the terms and conditions of the Merger Agreement
shall continue in full force and effect among the Parties. This Amendment shall form a part
of the Merger Agreement for all purposes, and each Party shall be bound by this Amendment. |
| 17. | All
capitalized terms used but not defined in this Amendment shall have the meanings set forth
in the Merger Agreement. Each reference to “this Agreement” and each other similar
reference contained in the Agreement shall, after this Amendment becomes effective, refer
to the Merger Agreement as amended by this Amendment. |
| 18. | This
Amendment may be executed in any number of counterparts (including by means of facsimile
and electronically transmitted portable document format (.pdf) signature pages), each of
which shall be an original but all of which together shall constitute one and the same instrument. |
| 19. | The
provisions of Article 8 of the Merger Agreement are incorporated by reference, mutatis mutandis,
as if set forth in full in this Amendment. |
| 20. | Each
party to this Amendment represents and warrants that it has obtained all corporate, board
and other approvals necessary to execute and deliver this Amendment and for this Amendment
to be effective. |
[Signature
Page Follows]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the Effective Date.
|
SILVERSUN |
|
SilverSun Technologies,
Inc. |
|
|
|
By: |
/s/
Mark Meller |
|
Name: |
Mark Meller |
|
Title: |
Chief Executive Officer |
|
|
|
MERGER SUB I |
|
Rhodium Enterprises
Acquisition Corp. |
|
|
|
By: |
/s/ Mark Meller |
|
Name: |
Mark Meller |
|
Title: |
Chief Executive Officer |
|
|
|
MERGER SUB II |
|
Rhodium Enterprises
Acquisition LLC |
|
|
|
By: |
/s/ Mark Meller |
|
Name: |
Mark Meller |
|
Title: |
Chief Executive Officer |
|
RHODIUM |
|
|
|
Rhodium
Enterprises, Inc. |
|
|
|
By: |
/s/
Chase Blackmon |
|
Name: |
Chase Blackmon |
|
Title: |
Chief Executive Officer |
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