0001144204-12-013323.txt : 20120306 0001144204-12-013323.hdr.sgml : 20120306 20120306172900 ACCESSION NUMBER: 0001144204-12-013323 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 17 CONFORMED PERIOD OF REPORT: 20120229 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Change in Shell Company Status ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20120306 DATE AS OF CHANGE: 20120306 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Ascend Acquisition Corp. CENTRAL INDEX KEY: 0001350773 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 203881465 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-51840 FILM NUMBER: 12671633 BUSINESS ADDRESS: STREET 1: 435 DEVON PARK DRIVE STREET 2: BUILDING 400 CITY: WAYNE STATE: PA ZIP: 19087 BUSINESS PHONE: 610-293-2512 MAIL ADDRESS: STREET 1: 435 DEVON PARK DRIVE STREET 2: BUILDING 400 CITY: WAYNE STATE: PA ZIP: 19087 8-K 1 v304722_8k.htm CURRENT REPORT FORM 8-K

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): February 29, 2012

ASCEND ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

Delaware		000-51840		20-3881465
(State of Incorporation)		(Commission File No.)		(IRS Employer ID No.)

360 Ritch Street, Floor 3

San Francisco, California 94107

(Address of Principal Executive Offices)

(786) 245-3786

(Registrant’s Telephone Number, Including Area Code)

970 West Broadway, PMB 402

Jackson, Wyoming 83002

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR.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))

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This document contains forward-looking statements, which reflect our views with respect to future events and financial performance. These forward-looking statements are subject to certain uncertainties and other factors that could cause actual results to differ materially from such statements. These forward-looking statements are identified by, among other things, the words “anticipates”, “believes”, “estimates”, “expects”, “plans”, “projects”, “targets” and similar expressions. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date the statement was made. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Important factors that may cause actual results to differ from those projected include the risk factors set forth in Item 2.02 of this report.

USE OF DEFINED TERMS

Except as otherwise indicated by the context, references in this report to “Ascend” or the “Company” are references to Ascend Acquisition Corp., a Delaware corporation, and references to “Andover Games” are references to Andover Games, LLC, a Delaware limited liability company that is wholly-owned by Ascend. References to “we,” “us” or “our” are references to the combined business of Ascend and Andover Games.

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

General; Merger Agreement

On December 30, 2011, Ascend entered into a Merger Agreement and Plan of Reorganization (the “Merger Agreement”) by and among Ascend, Ascend Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Ascend (“Merger Sub”), Andover Games and the members of Andover Games (“Signing Members”). On February 29, 2012, the parties closed the transactions under the Merger Agreement and, pursuant to the Merger Agreement, the Merger Sub merged with and into Andover Games, with Andover Games surviving the merger and becoming a wholly-owned subsidiary of Ascend.

Andover Games is a company formed to create and distribute game applications on current smartphone and other mobile platforms, namely iOS and Android, as well as future competing smartphone platforms.

The following summaries of the merger and related transactions, the Merger Agreement and the other agreements entered into by the parties are qualified in their entirety by reference to the text of the agreements, certain of which are attached as exhibits hereto and are incorporated herein by reference.

Merger Consideration

At the close of the merger (“Closing”), the holders of membership interests of Andover Games received 38,195,025 shares of Ascend common stock, representing 75% of the fully diluted capitalization of Ascend immediately after the closing of the merger and the Financing (defined below), subject to further adjustment as provided for in the Merger Agreement.

Pursuant to the Merger Agreement, Ascend was obligated to use its commercial best efforts to raise at least $4 million of equity capital through the sale of Ascend’s capital stock (the “Financing”), of which at least $2 million was to be raised prior to or simultaneously with the Closing and such additional proceeds are to be raised, if at all, within the next 30 days so as to raise up to $4 million in aggregate proceeds. As described under “Financing” below, simultaneously with the Closing, Ascend sold 4,000,000 shares of its common stock, at $0.50 per share, for gross proceeds of $2 million. Pursuant to the Merger Agreement, Ascend is required to use its commercial best efforts to raise an additional $2 million of proceeds within 30 days after the Closing. Pursuant to the Merger Agreement, if Ascend sells additional shares of its capital stock in the Financing during such period, Ascend will issue additional shares of its common stock to the former members of Andover Games to maintain their collective ownership of Ascend common stock at 75% on a fully diluted basis. Alternatively, if Ascend sells less than the maximum $4 million in aggregate proceeds in the Financing, then such number of additional shares of Ascend capital stock shall be issued to the former members of Andover Games at the final closing of the Financing so as to increase their collective pro-rata percentage ownership in Ascend by one percent (1%) for every $200,000 in proceeds that Ascend falls short of the $4 million maximum proceeds in the Financing. By way of example, if Ascend raises only an additional $1,000,000 in a second and final closing of the Financing, then Ascend shall issue to the former members of Andover Games additional shares of common stock in Ascend such that the former members of Andover Games, as a group, hold 80% of the outstanding shares of Ascend common stock on a fully diluted basis.

Financing

Simultaneously with the Closing, Ascend sold 4,000,000 shares (“Shares”) of its common stock, at $0.50 per share, for gross proceeds of $2 million to 15 accredited investors, including Ironbound Partners Fund, LLC (“Ironbound”), an affiliate of Jonathan J. Ledecky, Ascend’s former Chief Executive Officer and the holder of approximately 85% of Ascend’s outstanding common stock prior to the consummation of the merger and Financing. Pursuant to the Merger Agreement, Ascend is required to use its commercial best efforts to raise such additional proceeds within 30 days after the Closing so as to raise $4 million in aggregate proceeds. The purchase and sale of the Shares was conducted pursuant to a Subscription Agreement entered into between Ascend and each of the investors. Pursuant to the terms of the Subscription Agreement, Ascend has agreed to file, within ten business days of the Closing, a registration statement (“Registration Statement”) with the Securities and Exchange Commission covering the resale by the investors of the Shares they purchased and use its best efforts to have such Registration Statement declared effective as promptly as practicable thereafter, and keep the Registration Statement effective until (i) the date on which the Shares may be resold by the investor without registration under the Securities Act and without regard to any volume limitations by reason of Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the Shares have been sold pursuant to the Registration Statement or Rule 144 under the Securities Act or any other rule of similar effect.

Lock-Up Agreements

Pursuant to the terms of lock-up agreements entered into upon signing of the Merger Agreement, all of the officers, managers and former holders of membership interests of Andover Games, together with Jonathan J. Ledecky and Ironbound, have agreed not to sell their shares of Ascend common stock until the 12-month anniversary of the Closing.

Tax and Accounting Considerations

The merger constituted a tax-free reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended.

The merger will be accounted for as a “reverse merger” and recapitalization since immediately following the completion of the transaction, the holders of membership interests of Andover Games immediately prior to the merger have effective control of Ascend through their approximately 75% aggregate stockholder interest in the combined entity. In addition, all of Andover Games’ senior executive positions continue on as management of the combined entity after consummation of the merger. For accounting purposes, Andover Games will be deemed to be the accounting acquirer in the transaction and, consequently, the transaction will be treated as a recapitalization of Andover Games. Accordingly, Andover Games’ assets, liabilities and results of operations will become the historical financial statements of Ascend, and Ascend’s assets, liabilities and results of operations will be consolidated with Andover Games effective as of the merger date.

Right of First Look Letter

Each former holder of Andover Games’ membership interests has entered into a right of first look letter agreement with Ascend pursuant to which each such individual has agreed to disclose and present to Ascend new potential business opportunities which relate to Andover Games’ business prior to pursuing such opportunities themselves, alone or with any other person, subject to certain limited exceptions, so long as such person either owns at least 1% of the of the outstanding capital stock of Ascend or is an officer, director, employee or consultant of Ascend. Even if Ascend does not desire to pursue such opportunity, it can prevent the individual from pursuing it by notice to such individual.

Noncompetition

Pursuant to the Merger Agreement, each former holder of Andover Games’ membership interests, including Craig dos Santos, Ben Lewis, Lee Linden and Richard Hecker, have agreed not to compete with Ascend for a period of two years from the Closing and to not solicit any employees of Ascend during such period.

Representations and Warranties

The Merger Agreement included customary representations and warranties of each of Ascend, Merger Sub, Andover Games and the Signing Members.

Management of Ascend Following Merger

Upon the Closing, Craig dos Santos, Andover Games’ Chief Executive Officer, Ben Lewis, a founder of Andover Games, Richard Hecker, a board member of Andover Games, and Jeremy Zimmer were appointed to Ascend’s Board to join Jonathan Ledecky as board members.

Upon consummation of the merger, Jonathan Ledecky resigned from his position of Chief Executive Officer of Ascend and became the non-executive Chairman of the Board and Interim Chief Financial Officer of Ascend. Mr. Ledecky entered into a two-year consulting agreement with Ascend upon consummation of the merger providing for him to receive an annual consulting fee of $150,000. Additionally, Craig dos Santos became the Chief Executive Officer of Ascend and will also be the Chief Executive Officer and a Manager of Andover Games, and entered into a two-year employment agreement with Ascend upon the Closing providing for him to be paid an annual salary of $225,000. Traction and Scale LLC, a limited liability company in which Richard Hecker owns 100% of the membership interests, also entered into a two-year consulting agreement with Ascend pursuant to which it will make the services of Mr. Hecker available to Ascend during the term and providing for $150,000 in aggregate consulting fees per year.

Bridge Loans

Pursuant to the Merger Agreement, prior to the Closing, Ascend provided bridge loans in the aggregate amount of $250,000 to Andover Games (the “Bridge Loans”). The Bridge Loans were evidenced by promissory notes bearing interest at the prime annual rate plus 5%. The promissory notes were due on the closing of the merger and have been repaid.

To provide the necessary funding for Ascend to make the above-referenced Bridge Loans, Ascend received a loan from Ironbound in an aggregate principal amount of $250,000 and in return issued to Ironbound a convertible promissory note to evidence the loan. The note was due on the Closing and was used as consideration for Ironbound to purchase shares of Ascend’s common stock in the first closing of the Financing on the same terms as the other investors. The interest owed on the note was forgiven.

Indemnification Agreements

Upon the Closing, Ascend entered into indemnification agreements with each of its executive officers and directors.

Copies of the Merger Agreement, Lock Up Agreements, Right of First Look Agreements, Indemnification Agreements, Employment Agreements and Consulting Agreements with our officers and directors and the form of Subscription Agreement used in the Financing are filed as exhibits to this report. On March 2, 2012, we issued a press release describing the closing of the merger and the Financing. A copy of the press release is filed as Exhibit 99.1 to this report.

ITEM 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS

On February 29, 2012, we completed an acquisition of Andover Games pursuant to the Merger Agreement. The acquisition was accounted for as a recapitalization effected by merger, wherein Andover Games is considered the acquirer for accounting and financial reporting purposes. The assets and liabilities of the acquired entity have been brought forward at their book value and no goodwill has been recognized.

FORM 10 DISCLOSURE

As disclosed elsewhere in this report, we acquired Andover Games in a reverse acquisition transaction. Item 2.01(f) of Form 8-K states that if the registrant was a shell company (as we were immediately before the reverse acquisition transaction disclosed under Item 2.01), then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10.

Accordingly, we are providing below the information that would be included in a Form 10 if we were to file a Form 10. Please note that the information provided below relates to the combined enterprises after the acquisition of Andover Games, except that information relating to periods prior to the date of the reverse acquisition relate to only Ascend Acquisition Corp., unless otherwise specifically indicated.

DESCRIPTION OF BUSINESS

Our Vision for Play

We founded Andover Games in January 2011 with the belief that mobile entertainment is becoming one of the most ubiquitous forms of entertainment as smartphone devices become the standard. We believe that online and mobile games are no longer a past time for just male teenagers. All ages are spending more time on their mobile devices, and the demand for high quality mobile entertainment will continue to increase. We aim to bring together the best teams of game designers and engineers and pioneer a new standard for mobile entertainment.

Overview

Our goal is to become one of the leading gaming companies focused purely in the social mobile arena. We intend to use a multi-faceted approach to developing, producing, marketing and distributing games on iOS and Android devices. We aim for fun, engaging consumer interaction, experienced anywhere, at any time, on your phone. Our team has acquired its expertise gleaned from not only working at, but starting, top social gaming companies, and the leading marketing/distribution company in the mobile gaming space. We expect that the majority of our games will be free to play, and we expect to generate revenue through the in-game sale of virtual goods and advertising. We intend to recruit experienced public company executives who have a track record of building numerous successful public companies to join forces with our existing team of top mobile executives and technologists.

We believe opportunities in mobile gaming are growing faster than ever because of the dramatic increase in audience size (more and more people have iPhones and Android devices) as well as the increasing popularity of casual, social games. These factors have opened up the gaming market to a wider audience, attracting a broad range of users who have never previously considered themselves “gamers”. We have an opportunity to grow quickly and use our deep relationships in the mobile gaming space and operational expertise to build technical tools that we believe will allow us to launch games faster and with a higher quality barrier to entry than the current competition. We intend to attract the top talent in the industry by narrowing our focus on executing a free to play business model while simultaneously increasing the quality of aesthetics and interaction in the game.

Industry Background

Social Games

Since the mid-1970s, video game companies have focused on console games, selling individual games for $30 to $50 in retail stores. A smaller but growing section of the market concentrated on PC games and online games. In 2008, the online gaming market started growing exponentially with the introduction of games on the Facebook platform. Facebook allowed for easy, viral distribution of games and a new type of game was introduced to the US market: Social Games.

Free to Play Gaming Model

By early 2009, a few leaders in the industry (Zynga, Playdom, Playfish) had emerged and were generating hundreds of millions of dollars in revenue by offering games that were Free to Play (F2P). Companies earned revenue by selling virtual currencies and virtual goods within the game. Instead of creating a game, packaging it and selling it in a store, these games were created quickly and launched and then updated frequently. Games became a service, instead of a packaged good product. We believe that many of the traditional gaming companies have been slow to enter into this world, and that game companies of this F2P era continue to be led by technologists coming from the web software world.

Mobile Gaming on the iOS platform

Since the introduction of the iOS developer platform in 2008, game development has been extremely popular. Most developers view the iPhone and iPod Touch as another portable game console. Games and entertainment quickly comprised 26% of all downloads in the iOS app store. Porting games from other consoles was an initial strategy by most developers but the problem they encountered was that the price points were very different. Consumers wanted apps for free, or at best were willing to pay a few dollars for an application. Price points of $5 rarely brought enough downloads to make the investment worthwhile. Most console game developers were accustomed to spending a year or more developing each title and charging upwards of $30 per game unit sold.

Meanwhile, the development costs were considerable for brand name content as companies started to copy the model for building console games onto mobile devices. In addition, the usual channels for marketing and distribution didn’t work, leading to costly mistakes. Many firms lost money on their heavy hitting game titles, and even lucrative franchises like Madden and Call of Duty could not dominate the top games charts for a competitive length of time. The packaged good model of gaming that had dominated the console gaming did not translate to the new mobile platforms. A new model began to emerge that closely mirrored changes in the software world; where software moved from being a packaged good that consumers purchased in a box, to a service that was built on and delivered via the internet.

By 2010, Playdom, Zynga and a few independent companies had started experimenting with taking F2P games from Facebook onto the iOS platform. Almost immediately, these games started to eclipse brand name content in terms of revenue. While many companies were trying out a Free and Paid version of their games (the traditional shareware / try-before-you-buy model), the F2P model allowed for extreme price discrimination.

The way people use, communicate and entertain themselves using smartphones continues to evolve in 2012. As people spend more and more minutes using their phones, playing casual games will continue to be a common activity. Games are the most popular category of applications on smartphones, representing approximately half of the time spent on smartphone applications in the United States, according to a May 2011 report by Flurry Analytics, a market data and analytics firm.

There are a number of key trends that we believe will continue to drive the growth and popularity of social games, including:

Growth of Smartphone Audience and proliferation of mobile applications. Over the past 5 years, smartphones have emerged as a mainstream way to access the internet, utilize applications and play games, communicate and socialize. The worldwide smartphone market grew 54.7% year over year in the fourth quarter of 2011. [IDC http://www.idc.com/getdoc.jsp?containerId=prUS23299912] As smart phones, tablets and other increasingly powerful connected devices have proliferated worldwide, application developers have leveraged the much greater distribution opportunity and emerging social connectivity of mobile devices. Games are the most popular category of applications on smartphones, representing approximately half of the time spent on smartphone applications in the United States, according to a May 2011 report by Flurry Analytics, a market data and analytics firm.

Rapid Growth of Free-to-Play Games. Most social games are free to play and generate revenue through the in-game sale of virtual goods. According to In-Stat, a market intelligence firm, the worldwide market for the sale of virtual goods was $7.3 billion in 2010 and is expected to more than double by 2014. Compared to pay-to-play business models, the free-to-play approach tends to attract a wider audience of players, thereby increasing the number of players who have the potential to become paying users. By attracting a larger audience, the free-to-play model also enables a higher degree of in-game social interaction, which enhances the game experience for all players.

Our Opportunity

We believe that mobile games represent a new form of entertainment that will continue to capture leisure time as more games enter the market and target new demographics. Together with the growing audience on smartphones, worldwide, we believe that mobile games will represent an increasing portion of the overall video game software market.

As we move forward, we will endeavor to create technology that allows us to move across platforms from Android to iOS and potentially other smartphone platforms as the market continues to mature. We intend to create tools that will allow us to deliver high end aesthetic experiences, and allow us to analyze the data in our games and change them to better fit the actions of our user base.

We intend to invest in distribution, marketing and analytics on behalf of games we deem to have potential and partner with promising teams to distribute their titles. We intend to selectively invest in other game companies and make acquisitions of companies that are deemed strategic to Andover.

We believe that we can attract and retain high quality game development teams to work with us by offering them a combination of (i) critical path resources (e.g., quick cash infusions for early game development, a highly skilled in house team of software engineers and design specialists, and marketing expertise with whom to consult during the game development process) and (ii) highly attractive compensation which they would not be able to achieve on their own (i.e., specific cash incentives/revenue share of particular game revenue tied to the team’s individual efforts, together with equity grants in Ascend representing their participation in our overall effort to become a leading social mobile gaming company).

Our Games

We will initially launch our games in conjunction with other gaming companies in which we expect to invest and own a significant economic ownership stake ranging from a minority stake to, where possible, a majority equity stake. We will attempt to maintain at least voting (but less likely and often, economic) parity with the other owners of such gaming companies. We expect to enter into strategic relationship agreements with such gaming companies, including, among other things, a publisher licence with a right to shared revenues for specific game title(s) of the gaming companies with which we assist in developing and publishing. Company and industry specific factors outside of our control will significantly impact the results of our existing and anticipated gaming companies.

Currently, we have in place a variety of commercial and investment relationships with the game companies described below, with investment in a particular company by us represented either by an equity interest in such company or by convertible debt (which we have not converted into equity as of the date hereof), and/or a commercial contract to share in the revenues of particular game titles in development at such companies in consideration for certain assistance and support by us. The current game companies are described below together with a brief summary of the commercial and/or investment terms currently in place with each such company.

Rotvig Labs, LLC. Currently, we own an approximate 46% equity interest in Rotvig Labs, LLC. Rotvig is developing a web-enabled iOS game engine current titled Spacecraft. Under the terms of our commercial revenue share agreement, we are entitled to 46% of Rotvig Labs, LLC’s revenue.

Game Closure, Inc. Currently, we own an approximate 0.6% equity interest in Game Closure Inc. Game Closure offers an HTML5-based multiplayer game development kit. Currently, we have no other commercial agreement with Game Closure relating to a share of revenues or otherwise.

Ecko Entertainment, Inc. Currently we own less than one percent of Ecko Entertainment, Inc. Ecko currently has the following mobile games: Dexter, The Game; Weeds; and The Social Club. Currently, we have not converted a $50,000 convertible note we hold of Ecko into equity of Ecko and have no other commercial agreement with Ecko relating to a share of revenues for particular game applications being developed by it or otherwise.

Infinitap Games, LLC. Currently, we have no equity interest in Infinitap Games, LLC; however, we own all of the intellectual property (i.e., software, trademarks and related intellectual property) embodied in the only mobile game title currently in development, Dino Park, and are entitled to certain percentages of the revenues derived from such game.

Apart from the games described above, going forward we intend to own a more significant economic ownership stake in our future games (i.e., interest in the profits of such games) which we expect to range from a minority interest (e.g., 25%) to, where possible, a majority interest (50% or greater). Apart from the economic interest stake in such games, we will strive to maintain at least voting parity with the other owners (i.e., shareholders, if a corporation, or members, if a limited liability company) of such gaming companies. We also expect to enter into strategic relationship agreements with such gaming companies, including, among other things, a publisher license with a right to shared revenues for specific game title(s) of the gaming company with which we assist in developing and publishing.

As with a number of our existing games, in exchange for certain commitments, which will vary from game company to game company, including potentially assistance with office space, accounting and human resources functions, and assistance with monetization, game design, analytics and marketing spend related to the particular game title, we expect to enter into with these game companies revenue share arrangements, ranging from 40% to 80% of net receipts derived from the particular game title(s) being developed by the game companies with our assistance as described above. In respect of the game title(s) developed by these game companies, we will strive to obtain a worldwide license to use, reproduce, distribute, perform, display, prepare derivative works of, make, have made, sell and export the game title(s), and any related technologies, although we have no guaranty we will be able to obtain such terms or even such license in every instance. The specific term and conditions of the license will be set forth in the definitive strategic relationship agreement to be negotiated deal by deal with the particular game company.

We will look to increase our ownership or revenue share interest in these game companies, or try to acquire them completely as they or their games demonstrate success; however, with our current game companies described above we have no such right of first refusal or other contractual right to do so. As we grow, we will endeavor to hire as well as make full acquisitions of high quality development teams.

Our Core Strengths

We believe the following strengths provide us with competitive advantages:

Mobile Gaming Knowledge. All three of Andover Games’ founders, namely Craig dos Santos, Ben Lewis and Lee Linden, have built games that hit the top of the Apple App Store charts. We understand how to develop and, as importantly, operate a game as a service, monetizing it using the free to play model with virtual goods and other revenue methodologies.

Industry Connections. Andover Games’ founders are well known in the game industry, having worked at a top social gaming company (Playdom) and founded and created the top marketing distribution network on iOS (Tapjoy). We believe that we will be able to attract and recruit some of the best talent to work on our games because of our experience and contacts in the industry.

Forward Looking Technology: We intend to create a cross platform game engine that allows us to port games easily across iOS and Android smartphones. We also intend to create an animation framework that brings techniques from the 3D console gaming world to mobile devices for the first time. These assets will allow us to develop games and content faster and with higher quality than our competition.

Our Strategy

Our mission is to create high quality free games that are accessible anywhere, anytime through mobile devices. In pursuit of our mission, we encourage entrepreneurship and intelligent risk taking to produce breakthrough innovations. The key elements of our strategy are:

Make Games Accessible and Fun. We intend to operate our games as live services that are available anytime and anywhere. We intend to design our mobile games to provide players with easy access to shared experiences that delight, amuse and entertain, and we will endeavor to update our games on an ongoing basis with fresh content and new features to make them more social and fun for our players.

Launch and Publish New Games. We intend to invest in building new games in multiple genres. We will endeavor to partner with and publish games from highly talented small teams where our analytics and planned monetization infrastructure can help move their game forward.

Expand Our Mobile Network of Games. We intend to build a network of mobile gaming users through organic growth, paid user acquisition, and asset acquisition in order to cross promote within our proposed network of games. In addition, we will seek opportunities to cross promote our games with partners in their existing games.

Extend and Grow our Technology Assets. We are currently in beta with two isometric game engines, one on Android, and the other on iOS. In addition, we are working on animation and analytics tools that allow us to create subsequent titles more efficiently. We will endeavor to further increase our technology assets, as well as look to supplement them through licensing or acquisition.

Our Mobile Social Games

We design our games for short, frequent, fun interactions that delight and intrigue our users. We aim to launch the next generation of quality free-to-play games with a focus on aesthetics and extended game play.

Our games are designed to be played on internet connected mobile devices, where users can interact and play with each other. We will continue to invest in the free-to-play model in new genres where different demographics and audiences can experience the game for free before deciding to invest in enhancing their gameplay with virtual good and game upgrade purchases. We will operate our games as live services and update them with fresh content and new features to make them more social, enhance player engagement and improve monetization. We intend to analyze the data generated by our players’ game play and social interactions to guide the creation of new content and features. We use this ongoing feedback loop to keep our games compelling and enhance the player experience.

Our Core Values and Team

We founded Andover Games because we believe that small focused teams can create great games. As the market changes, prices for acquiring users goes up and the cost of creating a competitive game rises. We believe that bringing smaller game development teams into a larger infrastructure will increase the chance of their success, and subsequently increase the success of the network as a whole. We think the common infrastructure needed to push out successful games and run them as a service is a separate skill set from creating great content. We believe we can best generate consistently great content with small teams and supplement their core competency with our experience of running games as a service business.

Marketing

We intend to employ a multi-faceted distribution strategy, leveraging relationships with key points of distribution and by building an inter-networked set of games from which we can cross-promote other titles. We will initially acquire most of our players through paid channels and organic growth as well as in-game features that promote getting friends to download the game. There are currently a variety of mobile marketing companies all of whom provide a way to reliably acquire users. We will ultimately look to build a large community of players through the viral and sharing features provided by social networks, the social innovations in our games and the network effects of our business. We are committed to connecting with our players. We intend to have fan pages, generally on Facebook, for each of our games to connect with our players; and we intend to leverage various other forms of social media, including Twitter, to communicate with them. We intend to use traditional advertising activities, primarily online advertising spending on mobile channels like Admob, Tapjoy, Fiksu, Flurry, etc.

Intellectual Property

Our mobile entertainment business is based on the creation, acquisition, use and protection of intellectual property. Some of this intellectual property is in the form of software code, licensed patented technology and trade secrets that we use to develop our games and to enable them to run properly on multiple platforms. Other intellectual property we create includes audio-visual elements, including graphics, music, story lines and interface design.

While most of the intellectual property we intend to use will be created by us, we have and plan to continue to acquire rights to proprietary intellectual property. We also plan to obtain rights to use intellectual property through licenses and service agreements with third parties. These licenses will typically limit our use of intellectual property to specific uses and for specific time periods, and can involve a royalty payment structured as a revenue share for such licenses.

We will protect our intellectual property rights by relying on federal, state and common law rights, as well as contractual restrictions. We control access to our proprietary technology by entering into confidentiality and invention assignment agreements with our employees and contractors, and confidentiality agreements with third parties. In addition to these contractual arrangements, we will also rely on a combination of trade secret, copyright, trademark, trade dress, domain name and patents to protect our games and other intellectual property.

Circumstances outside our control could pose a threat to our intellectual property rights. For example, effective intellectual property protection may not be available in the United States or other countries in which our games are distributed. Also, the efforts we have taken and continue to take to protect our proprietary rights may not be sufficient or effective. Any significant impairment of our intellectual property rights could harm our business or our ability to compete. Also, protecting our intellectual property rights is costly and time-consuming. Any unauthorized disclosure or use of our intellectual property could make it more expensive to do business, thereby harming our operating results.

Companies in the Internet, mobile, games, social media, technology and other industries may own large numbers of patents, copyrights and trademarks and may frequently request license agreements, threaten litigation or file suit against us based on allegations of infringement or other violations of intellectual property rights. From time to time, we expect to face in the future, allegations by third parties, including our competitors, that we have infringed their trademarks, copyrights, patents and other intellectual property rights. As we face increasing competition and as our business grows, we will likely face growing claims of infringement.

Competition

The mobile social game sector is intensely competitive and is rapidly evolving. We face significant competition in all aspects of our business. Specifically, we compete for the leisure time, attention and discretionary spending of players with other mobile game developers on the basis of a number of factors, including quality of player experience, brand awareness and reputation and access to distribution channels.

Our industry is evolving rapidly and is becoming increasingly competitive. Other developers of mobile social games, including the leading mobile social gaming companies, have developed and will continue to develop compelling content that competes with our social games and adversely affects our ability to attract and retain players and their entertainment time.

Our competitors include:

Game Developers for Mobile: The mobile game sector is characterized by frequent product introductions, rapidly emerging mobile platforms, new technologies and new mobile application storefronts. Some of our competitors in the mobile game market include Electronic Arts, Zynga, DeNA Co. Ltd., Gameloft, Glu Mobile, Rovio Mobile Ltd, Pocket Gems Inc., Tiny Co Inc., and Storm8, Inc. We expect new mobile-game competitors to enter the market and existing competitors to allocate more resources to develop and market competing games and applications.

Other Game Publishers: Developers we work with have the choice to publish their games independently, or with other publishers that are focusing on the mobile games industry, including but not limited to: Zynga, Microsoft, Sony, Crowdstar, Tiny Co., GREE, and DeNA.

Other Forms of Media and Entertainment: We compete more broadly for the leisure time and attention of our players with providers of other forms of Internet and mobile entertainment, including social networking, online casual entertainment and music. To the extent existing or potential players choose to read, watch or listen to online content or streaming video or radio, play interactive video games at home or on their computer or mobile devices rather than play social games, these content services pose a competitive threat.

Government Regulation

We are subject to a number of foreign and domestic laws and regulations that affect companies conducting business on the Internet, many of which are still evolving and could be interpreted in ways that could harm our business. In the United States and internationally, laws relating to the liability of providers of online services for activities of their users and other third parties are currently being tested by a number of claims, including actions based on invasion of privacy and other torts, unfair competition, copyright and trademark infringement, and other theories based on the nature and content of the materials searched, the ads posted, or the content provided by users. Any court ruling or other governmental action that imposes liability on providers of online services for the activities of their users and other third parties could harm our business.

Additionally, due to a growing awareness of the use by criminal factions of social networking technologies to conduct illegal activities, such as money laundering and broadcast and advocacy of terrorist activities, governments may in the future implement legislation and pursue other means that could require changes in our planned social gaming network, in turn resulting in additional expenses in the conduct of our business.

In the area of information security and data protection, many states have passed laws requiring notification to users when there is a security breach for personal data, such as the 2002 amendment to California’s Information Practices Act, or requiring the adoption of minimum information security standards that are often vaguely defined and difficult to implement. The costs of compliance with these laws may increase in the future as a result of changes in interpretation. Furthermore, any failure on our part to comply with these laws may subject us to significant liabilities.

We are also subject to federal, state and foreign laws regarding privacy and protection of our users’ personal information and related data. We post our Terms of Service and Privacy Policy on our website where we set forth our practices concerning the use, transmission and disclosure of player data. Our failure to comply with our posted privacy policy or privacy related laws and regulations could result in proceedings against us by governmental authorities or others, which could damage our reputation and business. In addition, the interpretation of data protection laws, and their application to the Internet is evolving and not settled. There is a risk that these laws may be interpreted and applied in an inconsistent manner by various states, countries and areas of the world where our users are located, and in a manner that is not consistent with our current data protection practices. Complying with these varying national and international requirements could cause us to incur additional costs and change our business practices. Further, any failure by us to adequately protect our users’ privacy and data could result in a loss of player confidence in our services and ultimately in a loss of players, which could adversely impact our business.

Employees

As of the date of this report, we employ one executive officer and have consulting and advisor agreements with several individuals. See the section below titled “Directors and Executive Officers, Promoters and Control Persons” for further information on our officers, directors, consultants and advisors.

Facilities

Our offices are located in San Francisco, California. We lease approximately 2,000 square feet, at lease rate of $4,000 per month, pursuant to a month to month lease. The leased space is adequate for our current needs and we believe that additional space in the San Francisco area is available, on commercially reasonable terms, as needed.

Legal Proceedings

As of the date of this report, there are no pending legal proceedings to which we or our properties are subject.

RISK FACTORS

You should carefully consider the risks described below, which constitute all of the material risks facing us. If any of the following risks actually occur, our business could be harmed. You should also refer to the other information about us contained in this report, including our financial statements and related notes.

We have a new business model and virtually no operating history, which makes it difficult to evaluate our prospects and future financial results and may increase the risk that we will not be successful.

We began operations in 2011 and we have a short operating history and a new business model, which makes it difficult or impossible for us to predict future results of operations and for investors to effectively assess our future prospects. As a new company, we face risks and uncertainties relating to our ability to successfully implement our strategy. If we cannot address these risks and uncertainties or are unable to execute our strategy, we will not be successful, which could completely extinguish the value of your investment. We may never be able to achieve profitability, and even if we do, we may not be able to remain profitable. To achieve profitable operations on a continuing basis, we must successfully create, develop, test, introduce, market and distribute games and develop our site and our other products on a broad commercial basis. You should consider our business and prospects in light of the challenges we face, which include our ability to, among other things:

develop and then maintain a good relationship with Apple, Google and Facebook;

convert non-paying players into paying players and attract new paying players;

increase purchases by paying players;

retain paying players, especially higher paying players;

anticipate changes in the mobile and social game industry;

cost-effectively develop and launch games;

launch games and release enhancements that become popular;

develop and maintain a scalable, high-performance technology infrastructure that can efficiently and reliably handle increased player usage, fast load times and the deployment of new features and games;

process, store and use data in compliance with governmental regulation and other legal obligations related to privacy;

successfully compete with other companies that are currently in, or may in the future enter, the social game or entertainment industry;

hire, integrate and retain world class talent;

maintain adequate control of our expenses; and

successfully expand our business, while maintaining high quality.

We will operate in a new and rapidly changing industry, which makes it difficult to evaluate our business and prospects.

Social games, from which we will derive substantially all of our revenue, is a new and rapidly evolving industry. The growth of the social game industry and the level of demand and market acceptance of our games will be subject to a high degree of uncertainty. Our future operating results will depend on numerous factors affecting the social game industry, many of which are beyond our control, including:

changes in consumer demographics and public tastes and preferences;

the availability and popularity of other forms of entertainment;

the worldwide growth smartphone and mobile device users, and the rate of any such growth; and

general economic conditions, particularly economic conditions adversely affecting discretionary consumer spending.

Our ability to plan for game development, distribution and promotional activities will be significantly affected by our ability to anticipate and adapt to relatively rapid changes in the tastes and preferences of our potential players. New and different types of entertainment may increase in popularity at the expense of social games. A decline in the popularity of social games in general, or our games in particular would harm our business and prospects.

We will require additional funding in the future to continue to operate our business, which may not be available on terms favorable to us or at all.

As of December 31, 2011, we had total assets, on a pro forma combined basis, of $2,277,202 and working capital of $2,164,252 which includes an additional $2 million of gross proceeds by way of Ascend’s sale of 4,000,000 common shares, at $0.50 per share. We believe that our current working capital on hand, assuming we raise only the minimum $2 million in the Financing or raise the full $4 million in the Financing, will satisfy our working capital needs for our current and proposed operations through June 2012 or November 2012, respectively. However, we may require additional funding sooner than anticipated, in any event, we will require further funding if we are to be successful in expanding our business. We will endeavor to raise the additional required funds through various financing sources, including the sale of our equity and debt securities and the procurement of commercial debt financing; however, there can be no guarantees that such funds will be available on commercially reasonable terms, if at all. If such financing is not available on satisfactory terms, we may be unable to expand or continue our business as desired and operating results may be adversely affected. Debt financing must be repaid regardless of operating results and may involve restrictions limiting our operating flexibility. If we issue equity securities to raise additional funds, the following results may occur:

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the percentage ownership of our existing stockholders will be reduced;

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our stockholders may experience additional dilution in net book value per share; or

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the new equity securities may have rights, preferences or privileges senior to those of the holders of our common stock.

The report of our independent registered public accounting firm for the fiscal year ended December 31, 2011 states that due to our losses from operations and lack of working capital there is substantial doubt about our ability to continue as a going concern.

We have no live games or revenue, and we must launch and enhance games that attract and retain a significant number of paying players in order to grow our revenue.

We are a recently formed company and have not commenced significant revenue producing operations to date. Our games have not yet been launched. We expect to launch several titles in the next year, in most cases in partnership with other game companies, and expect a small number of games to represent most of our projected revenue. Our growth depends on our ability to consistently launch new games that achieve significant popularity. Each of our games requires significant engineering, marketing and other resources to develop, launch and sustain via regular upgrades and expansions. Our ability to successfully launch, sustain and expand games and attract and retain paying players largely depends on our ability to:

anticipate and effectively respond to changing game player interests and preferences;

anticipate or respond to changes in the competitive landscape;

attract, retain and motivate talented game designers, product managers and engineers;

develop, sustain and expand games that are fun, interesting and compelling to play and on which players want to spend money;

effectively market new games and enhancements to our existing players and new players;

minimize launch delays and cost overruns on new games and game expansions;

minimize downtime and other technical difficulties; and

acquire high quality assets, personnel and companies.

It is difficult to consistently anticipate player demand on a large scale, particularly as we develop new games in new genres or new markets. If we do not successfully launch games that attract and retain a significant number of paying players and extend the life of our existing games, our market share, reputation and financial results will be harmed.

Our results will depend on the performance of our games and the games other gaming companies develop with us, which is uncertain.

We will initially launch our games in conjunction with other gaming companies in which we expect to own a material economic ownership stake which can range from a minority stake to, where possible, a majority equity stake. We will attempt to maintain at least voting (but less likely and often, economic) parity with the other owners of such gaming companies. We expect to enter into strategic relationship agreements with such gaming companies, including, among other things, a publisher license with a right to shared revenues for specific game title(s) of the gaming companies with which we assist in developing and publishing. Company and industry specific factors outside of our control will significantly impact the results of our existing and anticipated associated gaming companies. The value of our assets and our results of operations will be specifically tied to the results of our gaming companies and their ability to succeed and deliver on their business strategies. The operating results of these associated gaming companies, which we anticipate will be highly uncertain, may be materially adversely affected by lack of demand for their products/services, increased competition, and mismanagement through the hyper-growth phase of development.

We expect that most of the gaming companies we work with will be in an early-stage of development and will have a limited, and in some cases no, operating history, making it difficult to evaluate their future prospects.

The gaming companies we are currently working with are, and we anticipate many of the future gaming companies we will work with will be, early-stage companies and will encounter risks and difficulties frequently encountered by early-stage companies in new and rapidly evolving markets. Most of these companies will typically have significant historical operating losses and as a result of their capital intensive businesses, growing competition and nascent nature of the market opportunity, may incur losses for the foreseeable future. If the gaming companies we work with do not successfully address all of these risks their businesses could be seriously harmed, and have a materially negative affect on our operating results and reduce the value of your investment.

Security breaches, computer viruses and computer hacking attacks could harm our business and results of operations.

Security breaches, computer malware and computer hacking attacks have become more prevalent in our industry, have occurred on our systems in the past and may occur on our systems in the future. Any security breach caused by hacking, which involves efforts to gain unauthorized access to information or systems, or to cause intentional malfunctions or loss or corruption of data, software, hardware or other computer equipment, and the inadvertent transmission of computer viruses could harm our business, financial condition and operating results. Though it is difficult to determine what harm may directly result from any specific interruption or breach, any failure to maintain performance, reliability, security and availability of our network infrastructure to the satisfaction of our players may harm our reputation and our ability to retain existing players and attract new players.

If we fail to effectively manage our growth, our business and operating results could be harmed.

We anticipate experiencing rapid growth in our headcount and operations, which will place significant demands on our management and our operational, financial and technological infrastructure. As we grow, we must expend significant resources to identify, hire, integrate, develop and motivate a large number of qualified employees. If we fail to effectively manage our hiring needs and successfully integrate our new hires, our ability to continue launching new games and enhance existing games could suffer.

To effectively manage the growth of our business and operations, we will need to spend significant resources to initially develop and then improve our technology infrastructure, our operational, financial and management controls, and our reporting systems and procedures by, among other things:

implementing, monitoring and thereafter updating our technology infrastructure to maintain high performance and minimize down time;

implementing and thereafter enhancing our internal controls to ensure timely and accurate reporting of all of our operations; and

appropriately documenting our information technology systems and our business processes.

Our initial design and implementation of our infrastructure and thereafter our enhancements and improvements will require significant capital expenditures and allocation of valuable management and employee resources. If we fail to implement this infrastructure and controls effectively, our ability to manage our expected growth and comply with the rules and regulations that are applicable to public reporting companies will be impaired.

Our core values of focusing on our players first and acting for the long term may conflict with the short-term interests of our business.

One of our core values is to focus on surprising and delighting our players, which we believe is essential to our success and serves the best, long-term interests of our stockholders. Therefore, we may make significant investments or changes in strategy that we think will benefit our players, even if our decision negatively impacts our operating results in the short term. In addition, our philosophy of putting our players first may cause disagreements or negatively impact our relationships with distribution partners or other third parties. Our decisions may not result in the long-term benefits that we expect, in which case the success of our games, business and operating results could be harmed.

If we lose the services of our founder and Chief Executive Officer or other members of our senior management team, we may not be able to execute our business strategy.

Our success depends in a large part upon the continued service of our senior management team. In particular, Andover Games’ founder and Chief Executive Officer, Craig dos Santos, is critical to our vision, strategic direction, culture, products and technology. The loss of Mr. dos Santos, even temporarily, or any other member of senior management would harm our business.

If we are unable to attract and retain highly qualified game developers, we may not be able to grow effectively.

Our ability to compete and grow depends in large part on the efforts and talents of our employees and those of the game companies we work with (i.e., game developer teams). Such game development teams, and employees, particularly game designers, product managers and engineers are in high demand, and we devote significant resources to identifying, hiring, training, successfully integrating and retaining these employees. We intend to hire a number of key personnel through acquisitions, and as competition with several other game companies increases, we expect to incur significant expenses in this regard. The failure or other inability to hire such qualified employees, or engage and contract with such game companies, and the loss of such employees, could result in significant disruptions to our business, and the integration of replacement personnel could be time-consuming and expensive and cause additional disruptions to our business.

An effort to avoid registration under the Investment Company Act of 1940 could foster less than optimal business practices.

In an effort to avoid registration under the Investment Company Act of 1940, as amended (the “Investment Company Act”), we may be required to sell, purchase or retain certain assets, including interests in the game companies we work with, and may not be able to capitalize on other attractive opportunities. The need to consistently manage our business practices to comply with the Investment Company Act could materially adversely affect our results of operations, and reduce the value of your investment.

Expansion into international markets is important for our future growth, and as we expand internationally, we face additional business, political, regulatory, operational, financial and economic risks, any of which could increase our costs and hinder such growth.

Attracting players in countries other than the United States will be a critical element of our business strategy. An important part of targeting international markets is developing offerings that are localized and customized for the players in those markets. We expect to devote significant resources to international expansion through acquisitions, the potential establishment of overseas offices and development studios, and developing foreign language offerings. Our ability to expand our business and to attract talented employees and players in international markets requires considerable management attention and resources and is subject to the particular challenges of supporting a rapidly growing business in an environment of multiple languages, cultures, customs, legal systems, alternative dispute systems, regulatory systems and commercial infrastructures. Expanding our business to include an international focus may subject us to risks that we have not faced before or increase risks that we currently face.

Competition within the broader entertainment industry is intense and our potential players may be attracted to competing forms of entertainment such as offline and traditional online games, television, movies and sports, as well as other entertainment options on the Internet.

We expect that our players will face a vast array of entertainment choices. Other forms of entertainment, such as offline, traditional online, personal computer and console games, television, movies, sports and the Internet, are much larger and more well-established markets and may be perceived by our players to offer greater variety, affordability, interactivity and enjoyment. These other forms of entertainment compete for the discretionary time and income of our players. If we are unable to sustain sufficient interest in our games in comparison to other forms of entertainment, including new forms of entertainment, our business model may no longer be viable.

There are low barriers to entry in the mobile social game industry, and competition is intense.

The mobile and social game industry is highly competitive, with low barriers to entry. We expect more companies to enter the sector and a wider range of games to be introduced. Our competitors that develop mobile and social games for social networks vary in size and include publicly-traded companies such as Zynga Inc, GLU Mobile Inc., Electronic Arts Inc./Playfish Inc. and The Walt Disney Company/Playdom Inc. and privately-held companies such as Tiny Co Inc, Pocket Gems Inc, Kabam Inc., Crowdstar, Inc. and Popcap Games, Inc. In addition, online game developers and distributors who are primarily focused on specific international markets, such as Tencent Holdings Limited in Asia, and high-profile companies with significant online presences that to date have not developed social games, such as Amazon.com, Facebook, Google Inc., Microsoft Corporation and Yahoo! Inc., may decide to develop mobile and social games. Nearly all of these current and potential competitors have significant resources for developing or acquiring additional games, may be able to incorporate their own strong brands and assets into their games, have a more diversified set of revenue sources than we do and may be less severely affected by changes in consumer preferences, regulations or other developments that may impact the online social game industry.

The value of our virtual goods will be highly dependent on how we manage the purchase of virtual goods in our games. If we fail to manage it properly, our business may suffer.

We expect that paying players will purchase virtual goods in our games because of the perceived value of these goods, which is dependent on the relative ease of securing an equivalent good via non-paid means within the game. The perceived value of these virtual goods can be impacted by an increase in the availability of free game credits or by various actions that we take, including offering discounts for virtual goods, giving away virtual goods in promotions or providing easier non-paid means to secure these goods. If we fail to manage the purchase of virtual goods properly, payers may be less likely to purchase them and our business may suffer.

Some of our players may make sales and/or purchases of virtual goods used in our games through unauthorized third-party websites, which may impede our revenue growth.

Some of our players may make sales and/or purchases of our virtual goods through unauthorized third-party sellers in exchange for real currency. These unauthorized transactions are usually arranged on third-party websites. We do not generate any revenue from these transactions. Accordingly, these unauthorized purchases and sales from third-party sellers could impede our revenue and profit growth by, among other things:

decreasing revenue from authorized transactions;

downward pressure on the prices we charge players for our virtual currency and virtual goods;

lost revenue from paying players who stop playing a particular game;

costs we incur to develop technological measures to curtail unauthorized transactions;

legal claims relating to the diminution of value of our virtual goods; and

increased customer support costs to respond to dissatisfied players.

To discourage unauthorized purchases and sales of our virtual goods, we expect to state in our terms of service that the buying or selling of virtual currency and virtual goods from unauthorized third-party sellers may result in bans from our games and/or legal action. If we decide to implement further restrictions on players’ ability to transfer virtual goods, we may lose players, which could harm our financial condition and results of operations.

The proliferation of “cheating” programs and scam offers that seek to exploit our games and players affects the game-playing experience and may lead players to stop playing our games.

Unrelated third parties have developed, and may continue to develop, “cheating” programs that enable players to exploit our games, play them in an automated way or obtain unfair advantages over other players who do play fairly. These programs harm the experience of players who play fairly and may disrupt the virtual economy of our games. In addition, unrelated third parties attempt to scam our players with fake offers for virtual goods. We expect to devote significant resources to discover and disable these programs and activities, and if we are unable to do so quickly our operations may be disrupted, our reputation damaged and players may stop playing our games. This may lead to lost revenue from paying players, increased cost of developing technological measures to combat these programs and activities, legal claims relating to the diminution in value of our virtual currency and goods, and increased customer service costs needed to respond to dissatisfied players.

We expect to be dependant on two primary platforms for most of our users and revenue and policy changes at either platform can severely impede our business.

Our games primarily will run on Apple iOS and Android operating systems. Any change to policies at either systems, payment mechanisms and marketing mechanisms can severely impede our ability to do business. Apple changing the way they allow or disallow marketing strategies will affect our business. Apple has prohibited companies from using iOS without prior warning and this poses a potential risk to us.

We expect a significant majority of our game traffic to be hosted by two vendors and any failure or significant interruption in our network could impact our operations and harm our business.

Our technology infrastructure is critical to the performance of our games and to player satisfaction. Our games run on a complex distributed system, or what is commonly known as cloud computing. We own, operate and maintain elements of this system, but significant elements of this system are operated by third parties that we do not control and which would require significant time to replace. We expect this dependence on third parties to continue. In particular, we expect to use Amazon Web Services, or AWS, and Google's App Engine. We may in the future experience website disruptions, outages and other performance problems due to a variety of factors, including infrastructure changes, human or software errors and capacity constraints. If a particular game is unavailable when players attempt to access it or navigation through a game is slower than they expect, players may stop playing the game and may be less likely to return to the game as often, if at all. A failure or significant interruption in our game service would harm our reputation and operations. We expect to continue to make significant investments to our technology infrastructure to maintain and improve all aspects of player experience and game performance. To the extent that our disaster recovery systems we plan to implement are not adequate, or we do not effectively address capacity constraints, upgrade our systems as needed and continually develop our technology and network architecture to accommodate increasing traffic, our business and operating results may suffer. We do not maintain insurance policies covering losses relating to our systems and we do not have business interruption insurance.

We anticipate that our quarterly operating results will be volatile and difficult to predict, and our stock price may decline if we fail to meet the expectations of securities analysts or investors.

Our revenue, traffic and operating results could vary significantly from quarter-to-quarter and year-to-year because of a variety of factors, some of which are outside of our control. Any of these events could cause the market price of our common stock to fluctuate. Factors that may contribute to the variability of our operating results include:

the timing of the launch and the popularity of new games and enhancements to existing games by us or our competitors;

changes to the social networks or mobile platforms on which we operate;

our ability to develop and maintain popular mobile and social games and convert our game player base into paying players and increase the amount our paying players pay;

the range, number and pricing of virtual goods available for sale;

the cost of investing in our technology infrastructure, which may be greater than we anticipate, both to address short-term capacity needs and long-term capacity and redundancy requirements;

disruptions in the availability of our games or of social networking or mobile platforms;

actual or perceived violations of privacy obligations and compromises of our player data;

the entrance of new competitors in our market whether by established companies or the entrance of new companies;

the cost of attracting and retaining game development personnel; and

In particular, we expect to recognize revenue from sale of our virtual goods in accordance with GAAP, which is complex and based on our assumptions and historical data with respect to the sale and use of various types of virtual goods. In the event that such assumptions are revised based on new data or there are changes in the historical mix of virtual goods sold due to new game introductions, reduced virtual good sales in existing games or other factors, the amount of revenue that we recognize in any particular period may fluctuate significantly.

Failure by us or the game companies we work with to protect or enforce the intellectual property rights in our games and related intellectual property or the costs involved in such enforcement could harm our business and operating results.

We regard the protection of our trade secrets, copyrights, trademarks, trade dress, domain names and other product rights as critical to our success. We strive to protect our intellectual property rights by relying on federal, state and common law rights, as well as contractual restrictions. We will enter into confidentiality and invention assignment agreements with our employees and contractors and confidentiality agreements with parties with whom we conduct business in order to limit access to, and disclosure and use of, our proprietary information, as we generally insist the game companies we work with to do. However, these contractual arrangements and the other steps we have taken to protect our intellectual property may not prevent the misappropriation of our proprietary information or deter independent development of similar technologies by others.

We intend to pursue the registration of our domain names, trademarks, and service marks in the United States and in certain locations outside the United States. We plan to seek to protect our trademarks, patents and domain names in an increasing number of jurisdictions, a process that is expensive and time-consuming and may not be successful or which we may not pursue in every location. We may, over time, increase our investment in protecting our innovations through increased patent filings that are expensive and time-consuming and may not result in issued patents that can be effectively enforced.

Litigation may be necessary to enforce our intellectual property rights, protect our trade secrets or determine the validity and scope of proprietary rights claimed by others. Any litigation of this nature, regardless of outcome or merit, could result in substantial costs, adverse publicity or diversion of management and technical resources, any of which could adversely affect our business and operating results. If we fail to maintain, protect and enhance our intellectual property rights, our business and operating results may be harmed.

We may in the future be subject to intellectual property disputes, which are costly to defend and could require us to pay significant damages and could limit our ability to use certain technologies in the future.

Due to the nature of our business, we may face allegations that we have infringed the trademarks, copyrights, patents and other intellectual property rights of third parties, including from our competitors, non-practicing entities and former employers of our personnel. Patent and other intellectual property litigation may be protracted and expensive, and the results are difficult to predict. As the result of any court judgment or settlement we may be obligated to cancel the launch of a new game, stop offering certain features, pay royalties or significant settlement costs, purchase licenses or modify our games and features while we develop substitutes.

In addition, we use open source software in our games and expect to continue to use open source software in the future. From time to time, we may face claims from companies that incorporate open source software into their products, claiming ownership of, or demanding release of, the source code, the open source software and/or derivative works that were developed using such software, or otherwise seeking to enforce the terms of the applicable open source license. These claims could also result in litigation, require us to purchase a costly license or require us to devote additional research and development resources to change our games, any of which would have a negative effect on our business and operating results.

Programming errors or flaws in our games could harm our reputation or decrease market acceptance of our games, which would harm our operating results.

Our games may contain errors, bugs, flaws or corrupted data, and these defects may only become apparent after their launch, particularly as we launch new games and rapidly release new features to existing games under tight time constraints. We believe that if our players have a negative experience with our games, they may be less inclined to continue or resume playing our games or recommend our games to other potential players. Undetected programming errors, game defects and data corruption can disrupt our operations, adversely affect the game experience of our players by allowing players to gain unfair advantage, harm our reputation, cause our players to stop playing our games, divert our resources and delay market acceptance of our games, any of which could result in legal liability to us or harm our operating results.

Evolving regulations concerning data privacy may result in increased regulation and different industry standards, which could prevent us from providing our current games to our players, or require us to modify our games, thereby harming our business.

The regulatory framework for privacy issues worldwide is currently in flux and is likely to remain so for the foreseeable future. Practices regarding the collection, use, storage, transmission and security of personal information by companies operating over the Internet and mobile platforms have recently come under increased public scrutiny, and civil claims alleging liability for the breach of data privacy have been asserted against us. The U.S. government, including the Federal Trade Commission and the Department of Commerce, has announced that it is reviewing the need for greater regulation for the collection of information concerning consumer behavior on the Internet, including regulation aimed at restricting certain targeted advertising practices. In addition, the European Union is in the process of proposing reforms to its existing data protection legal framework, which may result in a greater compliance burden for companies with users in Europe. Various government and consumer agencies have also called for new regulation and changes in industry practices.

We expect the success of our business to depend heavily on our ability to study the data of our users and will continue to be, driven by our ability to responsibly use the data that our players share with us. Therefore, our business could be harmed by any significant change to applicable laws, regulations or industry practices regarding the use or disclosure of data our players choose to share with us, or regarding the manner in which the express or implied consent of consumers for such use and disclosure is obtained. Such changes may require us to modify our games and features, possibly in a material manner, and may limit our ability to develop new games and features that make use of the data that our players voluntarily share with us.

We expect to process, store and use personal information and other data, which will subject us to governmental regulation and other legal obligations related to privacy, and our actual or perceived failure to comply with such obligations could harm our business.

We expect to receive, store and process personal information and other player data, and we plan to enable our players to share their personal information with each other and with third parties, including on the Internet and mobile platforms. There are numerous federal, state and local laws around the world regarding privacy and the storing, sharing, use, processing, disclosure and protection of personal information and other player data on the Internet and mobile platforms, the scope of which are changing, subject to differing interpretations, and may be inconsistent between countries or conflict with other rules. We generally expect to comply with industry standards and are subject to the terms of our own privacy policies and privacy-related obligations to third parties. We strive to comply with all applicable laws, policies, legal obligations and certain industry codes of conduct relating to privacy and data protection, to the extent reasonably attainable. However, it is possible that these obligations may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another and may conflict with other rules or our practices. Any failure or perceived failure by us to comply with our privacy policies, our privacy-related obligations to players or other third parties, or our privacy-related legal obligations, or any compromise of security that results in the unauthorized release or transfer of personally identifiable information or other player data, may result in governmental enforcement actions, litigation or public statements against us by consumer advocacy groups or others and could cause our players to lose trust in us, which could have an adverse effect on our business. Additionally, if third parties we work with, such as players, vendors or developers, violate applicable laws or our policies, such violations may also put our players’ information at risk and could in turn have an adverse effect on our business.

In the area of information security and data protection, many states have passed laws requiring notification to players when there is a security breach for personal data, such as the 2002 amendment to California’s Information Practices Act, or requiring the adoption of minimum information security standards that are often vaguely defined and difficult to practically implement. The costs of compliance with these laws may increase in the future as a result of changes in interpretation. Furthermore, any failure on our part to comply with these laws may subject us to significant liabilities.

Our business is subject to a variety of other U.S. and foreign laws, many of which are unsettled and still developing and which could subject us to claims or otherwise harm our business.

We are subject to a variety of laws in the United States and abroad, including laws regarding consumer protection, intellectual property, export and national security, that are continuously evolving and developing. The scope and interpretation of the laws that are or may be applicable to us are often uncertain and may be conflicting, particularly laws outside the United States. For example, laws relating to the liability of providers of online services for activities of their users and other third parties are currently being tested by a number of claims, including actions based on invasion of privacy and other torts, unfair competition, copyright and trademark infringement, and other theories based on the nature and content of the materials searched, the ads posted or the content provided by users. It is also likely that as our business grows and evolves and our games are played in a greater number of countries, we will become subject to laws and regulations in additional jurisdictions. We are potentially subject to a number of foreign and domestic laws and regulations that affect the offering of certain types of content, such as that which depicts violence, many of which are ambiguous, still evolving and could be interpreted in ways that could harm our business or expose us to liability. It is difficult to predict how existing laws will be applied to our business and the new laws to which we may become subject. See the discussion included in the section titled “Description of Business — Government Regulation.”

If we are not able to comply with these laws or regulations or if we become liable under these laws or regulations, we could be directly harmed, and we may be forced to implement new measures to reduce our exposure to this liability. This may require us to expend substantial resources or to modify our games, which would harm our business, financial condition and results of operations. In addition, the increased attention focused upon liability issues as a result of lawsuits and legislative proposals could harm our reputation or otherwise impact the growth of our business. Any costs incurred as a result of this potential liability could harm our business and operating results.

It is possible that a number of laws and regulations may be adopted or construed to apply to us in the United States and elsewhere that could restrict the online and mobile industries, including player privacy, advertising, taxation, content suitability, copyright, distribution and antitrust. Furthermore, the growth and development of electronic commerce and virtual goods may prompt calls for more stringent consumer protection laws that may impose additional burdens on companies such as ours conducting business through the Internet and mobile devices. We anticipate that scrutiny and regulation of our industry will increase and we will be required to devote legal and other resources to addressing such regulation. For example, existing laws or new laws regarding the regulation of currency and banking institutions may be interpreted to cover virtual currency or goods. If that were to occur we may be required to seek licenses, authorizations or approvals from relevant regulators, the granting of which may be dependent on us meeting certain capital and other requirements and we may be subject to additional regulation and oversight, all of which could significantly increase our operating costs. Changes in current laws or regulations or the imposition of new laws and regulations in the United States or elsewhere regarding these activities may lessen the growth of social game services and impair our business.

Our business will suffer if we are unable to successfully integrate acquired companies into our business or otherwise manage the growth associated with multiple acquisitions.

We intend to acquire businesses, personnel and technologies that are complementary to our existing business and expand our employee base and the breadth of our offerings. Our ability to grow through future acquisitions will depend on the availability of suitable acquisition and investment candidates at an acceptable cost, our ability to compete effectively to attract these candidates and the availability of financing to complete larger acquisitions. Since we expect the mobile social game industry to consolidate in the future, we may face significant competition in executing our growth strategy. Future acquisitions or investments could result in potential dilutive issuances of equity securities, use of significant cash balances or incurrence of debt, contingent liabilities or amortization expenses related to goodwill and other intangible assets, any of which could adversely affect our financial condition and results of operations. The benefits of an acquisition or investment may also take considerable time to develop, and we cannot be certain that any particular acquisition or investment will produce the intended benefits.

Integration of a new company’s operations, assets and personnel into ours will require significant attention from our management. The diversion of our management’s attention away from our business and any difficulties encountered in the integration process could harm our ability to manage our business. Future acquisitions will also expose us to potential risks, including risks associated with any acquired liabilities, the integration of new operations, technologies and personnel, unforeseen or hidden liabilities and unanticipated, information security vulnerabilities, the diversion of resources from our existing businesses, sites and technologies, the inability to generate sufficient revenue to offset the costs and expenses of acquisitions, and potential loss of, or harm to, our relationships with employees, players, and other suppliers as a result of integration of new businesses.

Our facilities are located near known earthquake fault zones, and the occurrence of an earthquake or other natural disaster could cause damage to our facilities and equipment, which could require us to curtail or cease operations.

Our principal offices and a network operations center are located in the San Francisco Bay Area, an area known for earthquakes, and are thus vulnerable to damage. We are also vulnerable to damage from other types of disasters, including power loss, fire, explosions, floods, communications failures, terrorist attacks and similar events. If any disaster were to occur, our ability to operate our business at our facilities could be impaired.

There is currently no liquid trading market for our common stock and we cannot ensure that one will ever develop or be sustained.

To date there has been no liquid trading market for our common stock. We cannot predict how liquid the market for our common stock might become. Our common stock is quoted for trading on the OTC Bulletin Board, however, and as soon as is practicable we anticipate applying for listing of our common stock on either the NYSE Amex, The Nasdaq Capital Market or other national securities exchange, assuming that we can satisfy the initial listing standards for such exchange. We currently do not satisfy the initial listing standards, and cannot ensure that we will be able to satisfy such listing standards or that our common stock will be accepted for listing on any such exchange. Further, the NYSE, Amex and The Nasdaq Capital Market have recently adopted listing rules that prohibit a former shell company that has undergone reverse acquisition with an operating company, such as us, from listing its shares until such time as the company has filed an annual report on Form 10-K covering a full 12 months following the close of the reverse acquisition. Should we fail to satisfy the initial listing standards of such exchanges, or our common stock is otherwise rejected for listing and remain quoted on the OTC Bulletin Board or suspended from the OTC Bulletin Board, the trading price of our common stock could suffer and the trading market for our common stock may be less liquid and our common stock price may be subject to increased volatility.

Furthermore, for companies whose securities are traded in the OTC Bulletin Board, it is more difficult (1) to obtain accurate quotations, (2) to obtain coverage for significant news events because major wire services generally do not publish press releases about such companies, and (3) to obtain needed capital.

Our common stock is currently deemed a “penny stock,” which makes it more difficult for our investors to sell their shares.

Our common stock is subject to the “penny stock” rules adopted under Section 15(g) of the Exchange Act. The penny stock rules generally apply to companies whose common stock is not listed on The Nasdaq Stock Market or other national securities exchange and trades at less than $4.00 per share, other than companies that have had average revenue of at least $6,000,000 for the last three years or that have tangible net worth of at least $5,000,000 ($2,000,000 if the company has been operating for three or more years). These rules require, among other things, that brokers who trade penny stock to persons other than “established customers” complete certain documentation, make suitability inquiries of investors and provide investors with certain information concerning trading in the security, including a risk disclosure document and quote information under certain circumstances. Many brokers have decided not to trade penny stocks because of the requirements of the penny stock rules and, as a result, the number of broker-dealers willing to act as market makers in such securities is limited. If we remain subject to the penny stock rules for any significant period, it could have an adverse effect on the market, if any, for our securities. If our securities are subject to the penny stock rules, investors will find it more difficult to dispose of our securities.

Because our directors and executive officers, as a group, own majority of our outstanding common shares, they can exert significant control over our business and affairs and have actual or potential interests that may depart from those of subscribers in the Offering.

Our directors and executive officers, as a group, own or control approximately 70% of the outstanding common shares of Ascend as of the date of this report. Further the former members of Andover Games, as a group, own or control 75% of the outstanding common shares of Ascend. As a result, in addition to their board seats and offices, such persons will have significant influence over and control all corporate actions requiring stockholder approval, irrespective of how our other stockholders may vote, including the following actions:

to elect or defeat the election of our directors;

to amend or prevent amendment of our certificate of incorporation or bylaws;

to effect or prevent a merger, sale of assets or other corporate transaction; and

to control the outcome of any other matter submitted to our stockholders for vote.

Such persons’ stock ownership may discourage a potential acquirer from making a tender offer or otherwise attempting to obtain control of our company, which in turn could reduce our stock price or prevent our stockholders from realizing a premium over our stock price.

Our certificate of incorporation allows for our board to create new series of preferred stock without further approval by our stockholders, which could adversely affect the rights of the holders of our common stock.

Our Board of Directors has the authority to fix and determine the relative rights and preferences of preferred stock. Our board of directors also has the authority to issue preferred stock without further stockholder approval. As a result, our board of directors could authorize the issuance of a series of preferred stock that would grant to holders the preferred right to our assets upon liquidation, the right to receive dividend payments before dividends are distributed to the holders of common stock and the right to the redemption of the shares, together with a premium, prior to the redemption of our common stock. In addition, our board of directors could authorize the issuance of a series of preferred stock that has greater voting power than our common stock or that is convertible into our common stock, which could decrease the relative voting power of our common stock or result in dilution to our existing stockholders.

Future sales of our common stock in the public market could cause our share price to decline.

Sales of a substantial number of shares of our common stock in the public market after the date of this report, or the perception that these sales might occur, could depress the market price of our common stock and could impair our ability to raise capital through the sale of additional equity securities. Simultaneous with the Closing, Ascend sold 4,000,000 shares of common stock at a price of $0.50 per share. In connection with the offer and sale of the shares, Ascend has agreed to file, within ten business days of the Closing, a registration statement with the Securities and Exchange Commission covering the resale by the investors of the shares they purchased and use its best efforts to have such Registration Statement declared effective as promptly as practicable thereafter, and keep the Registration Statement effective until (i) the date on which the shares may be resold by the investor without registration under the Securities Act and without regard to any volume limitations by reason of Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the shares have been sold pursuant to the Registration Statement or Rule 144 under the Securities Act or any other rule of similar effect

The requirements of being a public company may strain our resources, divert management’s attention and affect our ability to attract and retain qualified board members.

As a public company, we are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, the Sarbanes-Oxley Act, the Dodd-Frank Act and other applicable securities rules and regulations. Compliance with these rules and regulations will increase our legal and financial compliance costs, make some activities more difficult, time-consuming or costly and increase demand on our systems and resources. The Exchange Act requires, among other things, that we file annual, quarterly and current reports with respect to our business and operating results. The Sarbanes-Oxley Act requires, among other things, that we maintain effective disclosure controls and procedures and internal control over financial reporting. In order to maintain and, if required, improve our disclosure controls and procedures and internal control over financial reporting to meet this standard, significant resources and management oversight may be required. As a result, management’s attention may be diverted from other business concerns, which could harm our business and operating results.

In addition, pursuant to Section 404 of the Sarbanes-Oxley Act, we will be required to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting as of each fiscal year end. We are in the early stages of the costly and challenging process of compiling the system and processing documentation necessary to perform the evaluation needed to comply with Section 404. If we are unable to assert that our internal control over financial reporting is effective, we could lose investor confidence in the accuracy and completeness of our financial reports, which would cause the price of our common stock to decline.

We do not intend to pay dividends for the foreseeable future, and as a result your ability to achieve a return on your investment will depend on appreciation in the price of our common stock.

We have never declared or paid any cash dividends on our common stock and do not intend to pay any cash dividends in the foreseeable future. We anticipate that we will retain all of our future earnings for use in the development of our business and for general corporate purposes. Any determination to pay dividends in the future will be at the discretion of our board of directors. Accordingly, investors must rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investments.

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS

General

Ascend is a Delaware corporation that was incorporated on December 5, 2005. From our inception in 2005 until February 29, 2012, when we completed a reverse acquisition transaction with Andover Games, we were a blank check company and did not engage in active business operations other than our search for, and evaluation of, potential business opportunities for acquisition or participation. On February 29, 2012, we completed a reverse acquisition of Andover Games through a merger transaction whereby Andover Games became our wholly-owned direct subsidiary. Accordingly, the financial statements of Andover Games became our financial statements.

Results of Operations For The Year Ended December 31, 2011

The following financial discussion relates to the results of operations of Andover Games for the period from January 17, 2011 (inception) through December 31, 2011. Andover Games was formed on January 17, 2011. Andover Games is engaged in the business of creating and distributing game applications on current smartphone and other mobile platforms, namely iOS and Android, as well as future competing smartphone platforms.

We have not commenced significant revenue producing operations and do not expect to until the third or fourth quarters of 2012. We commenced our present operations on January 17, 2011 and during the period from our inception to December 31, 2011, we recognized $18,750 in revenue, and incurred $124,650 of software development costs which consist primarily of costs incurred to develop gaming applications prior to establishing technological feasibility for the gaming software. During the same period, we also incurred $231,630 of selling, general and administrative expenses, including $62,500 of salaries and $153,771 of professional fees relating primarily to the legal and accounting expenses incurred in connection with the merger transaction and related financing. We expect our operating expenses will significantly increase at such time as we commence significant revenue producing operations.

During the period from January 17, 2011 (inception) through December 31, 2011, we incurred a net loss from operations of $337,530. We also incurred other expenses of $14,662, including a write-off of $12,009 resulting from our equity loss from an investment in Tumbleweed Technologies, LLC (now a cost method investment in Byte Factory, LLC) and a write-off of $3,727 based on the impairment of our investment in Byte Factory, LLC. As a result, for the period from inception to December 31, 2011, we incurred a net loss of $352,192.

Financial Condition

Liquidity and Capital Resources

As of December 31, 2011, Andover Games and Ascend, on a pro forma combined basis, had total assets of $2,277,202 and working capital of $2,164,252 which included an additional $2 million of gross proceeds by way of Ascend’s sale of 4,000,000 common shares at $0.50 per share in the Financing. We believe that our current working capital on hand, assuming we raise only the minimum $2 million in the Financing or raise the full $4 million in the Financing, will satisfy our working capital needs for our current and proposed operations through June 2012 or November 2012, respectively. However, we may require additional funding sooner than anticipated and, in any event, we will require further funding if we are to be successful in expanding our business. We will endeavor to raise the additional required funds through various financing sources, including the sale of our equity and debt securities and, subject to our commencement of significant revenue producing operations, the procurement of commercial debt financing. However, there can be no guarantees that such funds will be available on commercially reasonable terms, if at all. If such financing is not available on satisfactory terms, we may be unable to expand or continue our business as desired and operating results may be adversely affected. In addition, any financing arrangement may have potentially adverse effects on us or our stockholders. Debt financing (if available and undertaken) will increase expenses, must be repaid regardless of operating results and may involve restrictions limiting our operating flexibility. If we issue equity securities to raise additional funds, the percentage ownership of our existing stockholders will be reduced and the new equity securities may have rights, preferences or privileges senior to those of the holders of our common stock.

Off-Balance Sheet Arrangements

We do not have any off-balance sheet financing arrangements.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The table below sets forth the beneficial ownership of our common stock, as of March 5, 2012, by:

All of our current directors and executive officers, individually;

All of our current directors and executive officers, as a group; and

All persons who beneficially owned more than 5% of our outstanding common stock.

The beneficial ownership of each person was calculated based on 50,926,700 shares of our common stock outstanding as of March 5, 2012, according to the record ownership listings as of that date, the beneficial ownership reports filed by 5% beneficial owners with the SEC and the verifications we solicited and received from each director and executive officer. The SEC has defined “beneficial ownership” to mean more than ownership in the usual sense. For example, a person has beneficial ownership of a share not only if he owns it in the usual sense, but also if he has the power (solely or shared) to vote, sell or otherwise dispose of the share. Beneficial ownership also includes the number of shares that a person has the right to acquire within 60 days of March 5, 2012, pursuant to the exercise of options or warrants or the conversion of notes, debentures or other indebtedness, but excludes stock appreciation rights. Two or more persons might count as beneficial owners of the same share. Unless otherwise noted, the following persons have sole voting and sole investment power with regard to the shares beneficially owned by them.

Name of Director, Executive Officer or Nominee	Shares			Percentage

Jonathan J. Ledecky
970 West Broadway, PMB 402
Jackson, WY 83002		7,968,550	(1)		15.6	%

Craig dos Santos
360 Ritch Street, Floor 3
San Francisco, CA 94107		11,967,775	(2)		23.5	%

Ben Lewis
360 Ritch Street, Floor 3
San Francisco, CA 94107		10,439,973	(2)		20.5	%

Richard Hecker
360 Ritch Street, Floor 3
San Francisco, CA 94107		4,965,354	(2)		9.8	%

Jeremy Zimmer
9560 Wilshire Boulevard
Beverly Hills, CA 90212		350,000			*

All executive officers and directors as a group (5 persons)		35,691,652			70.1	%

Name and Address of 5% Holders	Shares			Percentage

Lee Linden
360 Ritch Street, Floor 3
San Francisco, CA 94107		10,439,973	(2)		20.5	%

Ironbound Partners Fund, LLC
970 West Broadway, PMB 402
Jackson, WY 83002		7,968,550	(1)		15.6	%

* Less than 1%.

(1) Jonathan J. Ledecky is the Managing Member of Ironbound and as such has sole voting and dispositive power over the shares held by Ironbound.

(2) These individuals are party to a repurchase rights agreement pursuant to which certain individuals have the right to purchase shares from the other parties depending on the happening of certain events.

DIRECTORS AND EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS

The names of our executive officers, directors and key advisors and their ages, titles and biographies as of March 5, 2012 are set forth below:

Name	Age	Position Following Change of Control
Jonathan J. Ledecky	54	Non-Executive Chairman of the Board and Interim Chief Financial Officer
Craig dos Santos	30	Chief Executive Officer and Director
Jeremy Zimmer	53	Director
Ben Lewis	31	Director
Richard Hecker	27	Director
Lee Linden	30	Advisor

Jonathan J. Ledecky

Mr. Ledecky served as the Company’s chief executive officer from January 2011 to February 2012, and has served as chief financial officer and as a member of the Company’s Board of Directors since January 2011. Mr. Ledecky has served as chairman of Ironbound, a private investment management fund, since March 1999. Since June 1999, Mr. Ledecky has also served as chairman of the Ledecky Foundation, a philanthropic organization which contributes funds to programs for the education of disadvantaged inner city youth in Washington, D.C., New York and Boston. From June 2007 to October 2009, Mr. Ledecky served as president, secretary and a member of the board of directors of Triplecrown Acquisition Corp., a blank check company that completed a business combination with Cullen Agricultural Technologies, Inc. From July 2005 to December 2007, Mr. Ledecky served as president, secretary and a director of Endeavor Acquisition Corp., a blank check company that completed a business combination with American Apparel. From January 2007 to April 2009, Mr. Ledecky served as president, secretary and a director of Victory Acquisition Corp., a blank check company that did not complete a business combination and returned all of its capital, representing approximately $330 million, to its public shareholders. In October 1994, Mr. Ledecky founded U.S. Office Products and served as its chief executive officer until November 1997 and chairman until June 1998. During his tenure, U.S. Office Products completed over 260 acquisitions, and grew to a Fortune 500 company with over $2.6 billion in revenues. In June 1998, U.S. Office Products completed a comprehensive restructuring plan whereby four separate entities were spun off to stockholders and U.S. Office Products underwent a leveraged recapitalization. In connection with these transactions, Mr. Ledecky resigned from his position as chairman of U.S. Office Products and became a director of each of the four spin-off entities. In February 1997, Mr. Ledecky founded Building One Services Corporation (originally Consolidation Capital Corporation), an entity formed to identify attractive consolidation opportunities which ultimately focused on the facilities management industry. In November 1997, Building One raised $552 million in an initial public offering. Mr. Ledecky served as Building One’s chief executive officer from November 1997 through February 1999 and as its chairman from inception through its February 2000 merger with Group Maintenance America Corporation. During his tenure with Building One, it completed 46 acquisitions and grew to over $1.5 billion in revenues. From July 1999 to July 2001, Mr. Ledecky was vice chairman of Lincoln Holdings, owners of the Washington sports franchises in the NBA, NHL and WNBA. Since June 1998, Mr. Ledecky has served as a director of School Specialty, a Nasdaq Global Market listed education company that provides products, programs and services that enhance student achievement and development. School Specialty was spun out of U.S. Office Products in June 1998. Since 1994, Mr. Ledecky has been involved with numerous other companies in director positions.

Mr. Ledecky was a trustee of George Washington University, served as a director of the U.S. Chamber of Commerce and served as commissioner on the National Commission on Entrepreneurship. In addition, in 2004, Mr. Ledecky was elected the Chief Marshal of the 2004 Harvard University Commencement, a singular honor bestowed by his alumni peers for a 25th reunion graduate deemed to have made exceptional contributions to Harvard and the greater society while achieving outstanding professional success.

Mr. Ledecky received a B.A. (cum laude) from Harvard University in 1979 and a M.B.A. from the Harvard Business School in 1983.

We believe Mr. Ledecky is well-qualified to serve as a member of the Board of Directors due to his public company experience, operational experience and business contacts.

Craig dos Santos

Mr. dos Santos has served as our chief executive officer and a member of our Board of Directors since February 2012. Mr. dos Santos co-founded Andover Games in January 2011. In August 2009, Mr. dos Santos started the mobile division of Playdom and served in numerous positions, most recently as executive producer, until October 2010. Playdom focused on social games on Facebook and MySpace. While at Playdom, Mr. dos Santos grew the mobile team and launched games on iOS, Android and WebOS. As an early entrant into the mobile social games space, Mr. dos Santos helped Playdom launch Mobsters, Sorority Life and Social City, all of which were in the top 25 charts in the Apple App Store. Playdom also launched many other successful social games on Facebook before being sold to Disney for up to approximately $760 million in August 2010.

Prior to Playdom, Mr. dos Santos was at iLike from July 2008 until February 2009. iLike was a launch partner during the first launch of the Facebook Platform. At iLike, Mr. dos Santos was in charge of monetization of applications and helped strike deals with Rhapsody, Ticketmaster, Comscore and Nielsen. iLike was sold to MySpace in 2009.

From 2002 to 2006, Mr. dos Santos worked at Microsoft, where he was on the Microsoft Passport and Microsoft Windows Core Security teams. He was responsible for some of the security features in Windows XP as well as Windows Vista.

Mr. dos Santos graduated from Rice University in 2003 with a Bachelors of Science in Electrical and Computer Engineering.

We believe Mr. dos Santos is well-qualified to serve as a member of the Board of Directors due to his experience in the mobile gaming industry and his business contacts.

Jeremy Zimmer

Mr. Zimmer has served as a member of our Board of Directors since February 2012. Mr. Zimmer is a founding partner, Chief Executive Officer and board member of United Talent Agency, a talent and literary agency formed in 1991. At United Talent Agency, Mr. Zimmer oversees more than 125 agents and over 350 employees in Beverly Hills and New York, representing many widely- known and award-winning artists working in all current and emerging areas of entertainment, including motion pictures, television, music, digital media, books, and branded entertainment. The agency is also recognized worldwide in the areas of film and television packaging, film finance, corporate consulting, branding & licensing, endorsements and the representation of production talent. Mr. Zimmer has been a key figure behind United Talent Agency’s growth beyond film and television representation, having established the agency’s Digital, Branding, Licensing, and Endorsements divisions.

Mr. Zimmer is also involved in United Entertainment Group, a joint venture company which today is among the industry’s largest independent branded entertainment and integrated media firms providing marketing solutions to major consumer brands.

From 1984 to 1989, Mr. Zimmer was with International Creative Management where he eventually led both the Motion Picture Literary and Motion Picture Packaging departments. Then he joined Bauer/Benedek Agency, a talent agency, and served as a Partner there until he co-founded United Talent Agency in 1991.

Mr. Zimmer created and oversees United Talent Agency’s Agent Trainee Program and is a frequent speaker on the role of Hollywood in business and culture, and he has taught on the graduate level of UCLA’s Producers Program. He also sits on the Board of Overseers for the Hammer Museum.

We believe Mr. Zimmer is well-qualified to serve as a member of the Board of Directors due to his operational experience and business contacts.

Ben Lewis

Mr. Lewis has served as a member of our Board of Directors since February 2012. Mr. Lewis co-founded Andover Games in January 2011. Mr. Lewis co-founded Tapjoy, a leader in mobile application distribution and monetization, in August 2008, with Lee Linden. Tapjoy started out with a single iPhone game, TapDefense, which was downloaded more than 20 million times and helped launch the Tapjoy ads platform. The Tapjoy ads platform was a new way to monetize free mobile applications. After reaching revenue of $1 million per month in March 2010, Tapjoy merged with Offerpal Media, which had a similar business model for Facebook traffic.

By March 2011, Tapjoy had 70 employees and was generating over $100 million in annualized revenue and an estimated 60 percent of paid app distribution. Mr. Lewis then left to pursue a new mobile opportunity with Lee Linden called Karma Science, a San Francisco based mobile e-commerce company that makes products and services instantly giftable to millions of consumers from their smartphones.

Mr. Lewis graduated from the University of Michigan with a Computer engineering degree in 2001. He started his professional career at Microsoft from July 2002 to August 2003 as one of the founding engineers of the Xbox Live team. He then returned to the University of Michigan to get his MBA. After graduating from Michigan again, Mr. Lewis went to pursue a career at Google as a Product Manager. While at Google from July 2005 to January 2009, Mr. Lewis managed many successful products including growing the Toolbar from 60 million to 200 million-plus users, managing the launch and growth of Google Checkout, adding sports scores to Search and other products, as well as winning two EMG awards for his work on client team products.

While at the University of Michigan, Mr. Lewis also co-founded an internet company called Bidcentives with Lee Linden.

We believe Mr. Lewis is well-qualified to serve as a member of the Board of Directors due to his experience in the mobile gaming industry and his business contacts.

Richard Hecker

Mr. Hecker has served as a member of our Board of Directors since February 2012. Mr. Hecker has been a board member of Andover Games since January 2011. In March 2011, Mr. Hecker founded Stockton Equity LLC, a private equity firm specializing in digital media and direct marketing turn-around situations, and serves as its Managing Director. He also co-founded Double Dutch Studios Inc, parent of inSparq, a referral marketing platform for online retailers, in June 2011 and serves as its Executive Chairman. He also recently co-founded tractionandscale.com, an investment company.

From June 2010 to March 2011, Mr. Hecker was a consultant for Bebo.com, a social networking internet site. From September 2006 to June 2010, Mr. Hecker was the “chief bootstrapper” at Bootstrapper.com, a blog and conference producer for the private equity, venture capital and digital media industries. From June 2008 to January 2009, Mr. Hecker was Chief Marketing Officer of Groupable.com, an online marketplace and platform connecting groups and sponsors. From October 2003 to March 2006, Mr. Hecker was the Chairman and Chief Executive Officer of ZenFinancial, Inc., a call center outsourcing company. In April 2000, Mr. Hecker co-founded ClickZen Worldwide, an interactive advertising agency based in New York, and served as its President until September 2002.

In March 2008, Mr. Hecker co-founded TakesAllTypes.org, a non-profit social media platform for blood donation. Mr. Hecker also serves as a board member of Stakehouse, a social betting platform, and Buyinara, an email marketing company for the direct response television industry.

Mr. Hecker graduated from the State University of New York at Binghamton with a B.S. in financing.

We believe Mr. Hecker is well-qualified to serve as a member of the Board of Directors due to his IT experience and his business contacts.

Lee Linden

Mr. Linden has served as an advisor to our Board of Directors since February 2012. Mr. Linden co-founded Andover Games in January 2011. Mr. Linden co-founded (with Ben Lewis) Karma Science in March 2011 and Tapjoy in August 2008. At Tapjoy, Mr. Linden led fundraising and drove business development until its merger with Offerpal Media in March 2010. He then helped grow the combined business to over $100 million in annual revenue, over 9,000 network applications, and the development of first party applications with over 45 million downloads. Prior to Tapjoy, Mr. Linden worked as an associate at Kleiner Perkins Caufield & Byers from February 2008 to the end of 2008 and was a key member of the iFund team, which has made investments in several leading mobile companies. From June 2003 to May 2007, Mr. Linden worked in product development at Microsoft, leading engineering teams for both enterprise and consumer offerings including co-founding the Windows Home Server division. He is also the co-founder of ContestMachine (via YCombinator), a self-service online promotional marketing service with thousands of small business customers. Mr. Linden also co-founded an internet company called Bidcentives with Ben Lewis.

Mr. Linden received a degree in computer engineering at the University of Michigan in 2003 and obtained an MBA from Stanford's Graduate School of Business 2009.

Director Independence and Board Committees

The Company believes that using the definition of independence set forth in the Nasdaq Marketplace Rules, Jeremy Zimmer and Ben Lewis are independent. The Company is not a “listed company” under SEC rules. The Company’s common stock is currently traded on the OTC Bulletin Board. Accordingly, the Company is not required to have an audit committee (and therefore does not have a member that would qualify as an audit committee financial expert), compensation committee, or nominating committee. Furthermore, the Company does not believe it is necessary for the Board of Directors to appoint such committees, or have a separately designated lead director, because the volume of matters that come before the Board of Directors for consideration permits the full board to give sufficient time and attention to such matters to be involved in all decision making.

The Board of Directors is responsible for overseeing risk management, and receives reports from management periodically.

Family Relationships

There are no family relationships among the Company’s existing or incoming directors or officers.

Committee Interlocks and Insider Participation

No member of our Board of Directors is or was formerly employed by us or our subsidiaries, except for Mr. Ledecky and Mr. dos Santos. None of our executive officers serve on the Board of Directors of another entity, whose executive officers serves on our Board of Directors.

EXECUTIVE COMPENSATION

Summary Compensation Table

The following table sets forth the compensation awarded to, earned by or paid to, our chief executive officer and chief financial officer for the years ended December 31, 2011 and 2010 and our other two highest paid executive officers earning in excess of $100,000 for services rendered in all capacities the years ended December 31, 2011 and 2010. In reviewing the table, please note that:

Don K. Rice served as our CEO and CFO from 2005 to January 2011, however he received no compensation of any kind during 2011 or 2010 for serving as on officer or employee;

Jonathan Ledecky served as our CEO and CFO from January 2011 until the close of the merger on February 29, 2012 at which time he resigned as CEO and remains as interim CFO, however he received no compensation of any kind during 2011 or 2010 for serving as an officer or employee of Ascend; and

Craig dos Santos became our CEO on February 29, 2012. The compensation reported for Craig dos Santos represents compensation paid to him by Andover Games, where he has served as president and CEO since January 2011.

(amounts in thousands) Name and Principal Position(a)	Year (b)		Salary (c)		Bonus (d)		Stock Awards (e)		Option Awards (f)		All Other Compensation (g)		Total (h)
Don K. Rice, CEO and CFO (Former)		2011	$	—	$	—	$	—	$	—	$	—	$	—
		2010	$	—	$	—	$	—	$	—	$	—	$	—
Jonathan Ledecky, CEO (Former) and CFO		2011	$	—	$	—	$	—	$	—	$	—	$	—
		2010	$	—	$	—	$	—	$	—	$	—	$	—
Craig dos Santos, CEO		2011	$	62,500	$	—	$	—	$	—	$	—	$	—
		2010	$	—	$	—	$	—	$	—	$	—	$	—

Craig dos Santos serves as Chief Executive Officer of the Company pursuant to a two-year employment agreement with the Company effective as of February 29, 2012 providing for him to be paid an annual salary of $225,000 in exchange for his services. Richard Hecker and the Company have entered into a two-year consulting agreement effective as of February 29, 2012 providing for him to be paid an annual consulting fee of $150,000 in exchange for his services. Jonathan Ledecky and the Company have entered into a two-year consulting agreement effective as of February 29, 2012 providing for him to receive an annual consulting fee of $150,000.

Directors’ Compensation

The Company has not paid any compensation to its directors for service on the Board of Directors.

Outstanding Equity Awards at Fiscal Year End

The Company had no outstanding equity awards as of December 31, 2011.

Indemnification of Directors and Executive Officers and Limitation of Liability

Our bylaws provide for the indemnification of our present and prior directors and officers or any person who may have served at our request as a director or officer of another corporation in which we own shares of capital stock or of which we are a creditor, against expenses actually and necessarily incurred by them in connection with the defense of any actions, suits or proceedings in which they, or any of them, are made parties, or a party, by reason of being or having been director(s) or officer(s) of us or of such other corporation, in the absence of negligence or misconduct in the performance of their duties. This indemnification policy could result in substantial expenditure by us, which we may be unable to recoup.

Upon the Closing, Ascend entered into indemnification agreements with each of its executive officers and directors.

Insofar as indemnification by us for liabilities arising under the Exchange Act may be permitted to our directors, officers and controlling persons pursuant to provisions of the Certificate of Incorporation and Bylaws, or otherwise, we have been advised that in the opinion of the SEC, such indemnification is against public policy and is, therefore, unenforceable. In the event that a claim for indemnification by such director, officer or controlling person of us in the successful defense of any action, suit or proceeding is asserted by such director, officer or controlling person in connection with the securities being offered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Exchange Act and will be governed by the final adjudication of such issue.

At the present time, there is no pending litigation or proceeding involving a director, officer, employee or other agent of ours in which indemnification would be required or permitted. We are not aware of any threatened litigation or proceeding which may result in a claim for such indemnification.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

In January 2011, the Company executed a convertible promissory note in favor of Donald K. Rice, a former officer and director of the Company, with a principal amount of $15,000. The promissory note represented amounts advanced to the Company by Mr. Rice during August and November 2010. The promissory note was due and payable in full on demand, and bore interest at the rate of 5% per annum. At any time prior to the payment in full of the entire balance of the promissory note, Mr. Rice had the option of converting all or any portion of the unpaid balance of the promissory note into shares of the Company’s common stock at a conversion price equal to $0.15 per share, subject to adjustment upon certain events.

In January 21, 2011, the Company entered into and consummated a Stock Purchase Agreement (the “Purchase Agreement”) with Mr. Rice and Ironbound. Pursuant to the Purchase Agreement, Mr. Rice converted all principal and accrued interest on convertible promissory notes held by him, including the one issued to him in January 2011 described above, into an aggregate of 7,075,000 shares of the Company’s common stock. Immediately after the conversion of the notes, Mr. Rice sold to Ironbound such shares together with an additional 218,550 shares of common stock of the Company held by Mr. Rice, or an aggregate of 7,293,550 shares of common stock for an aggregate purchase price of $310,000.

In connection with the Company’s initial public offering in May 2006, Mr. Rice and the Company had entered into a registration rights agreement providing for registration rights with respect to certain of the shares held by Mr. Rice. In connection with the Purchase Agreement, these rights were assigned by Mr. Rice to Ironbound. Accordingly, pursuant to the registration rights agreement, Ironbound has the right to demand that the Company register certain of the shares of common stock of the Company acquired by it from Mr. Rice. In addition, Ironbound has certain “piggy-back” registration rights on registration statements filed by the Company with respect to such securities. The Company is required to bear the expenses incurred in connection with the filing of any such registration statements.

In March 2011, the Company executed a convertible promissory note in favor of Jonathan Ledecky, with a principal amount of $25,000. The note was due and payable in full on demand and bore interest at the rate of 5% per annum. At any time prior to the payment in full of the entire balance of the note, Mr. Ledecky had the option of converting all or any portion of the unpaid balance of the note into shares of the Company’s common stock at a conversion price equal to $0.19 per share, subject to adjustment upon certain events. The conversion price was based on the market price of the Company’s common stock at the time of the issuance of the note.

In July 2011, the Company executed a convertible promissory note in favor of Mr. Ledecky, with a principal amount of $10,000. The promissory note represented amounts advanced to the Company by Mr. Ledecky during June 2011. The promissory note was due and payable in full on demand and bore an interest rate of 5% per annum. At any time prior to the payment in full of the entire balance of the note, Mr. Ledecky had the option of converting all or any portion of the unpaid balance of the note into shares of the Company’s common stock at a conversion price equal to $0.20 per share, subject to adjustment upon certain events. The conversion price was at a premium to the market price of the Company’s common stock at the time of the issuance of the note.

In July 2011, Mr. Ledecky converted the $35,000 principal amount of the promissory notes issued to him in March 2011 and June 2011 into an aggregate of 175,000 shares of common stock of the Company, or $0.20 per share. Although the promissory note issued to Mr. Ledecky in March 2011 had a conversion price of $0.19, Mr. Ledecky voluntarily converted such note into the Company’s common stock at $0.20 per share. Additionally, the accrued interest on the notes totaling $380 was forfeited and credited to additional paid-in capital as part of the cost of securities issued.

In July 2011, Jeremy Zimmer purchased 250,000 shares of common stock from us for an aggregate purchase price of $50,000, or $0.20 per share, in a private placement.

The Company has agreed to file a registration statement with the SEC to register the resale of the shares of common stock issued upon conversion of the promissory notes converted by Mr. Ledecky in July 2011 and sold in the private placement to Mr. Zimmer promptly after consummation by the Company of a merger, stock exchange, asset acquisition or other form of business combination and to use its best efforts to have such registration statement declared effective as soon as possible. The Company is required to bear the expenses incurred in connection with the filing of such registration statement.

In December 2011, the Company executed a convertible promissory note in favor of Ironbound with a principal amount of $250,000. The promissory note represented amounts advanced to the Company by Ironbound so that the Company could provide certain bridge financing to Andover Games upon execution of the Merger Agreement. The note was due and payable in full upon closing of the merger or, if not consummated, on demand and bears interest at the rate of 5% per annum. Upon consummation of the merger, the note was used as consideration for Ironbound purchasing an aggregate of 500,000 shares of Ascend common stock in the Financing and was cancelled.

Jeremy Zimmer also purchased 100,000 shares of common stock in the Financing. Each of the officers or directors of the Company may participate in the remaining portion of the Financing on the same terms as other unaffiliated investors.

DESCRIPTION OF SECURITIES

Common Stock

We are authorized to issue up to 300,000,000 shares of common stock, par value $0.0001 per share.

Each outstanding share of common stock entitles the holder thereof to one vote per share on all matters. Our bylaws provide that the persons receiving the greatest number of votes shall be the directors. Stockholders do not have preemptive rights to purchase shares in any future issuance of our common stock. Upon our liquidation, dissolution or winding up, and after payment of creditors and preferred stockholders, if any, our assets will be divided pro-rata on a share-for-share basis among the holders of the shares of common stock.

The holders of shares of our common stock are entitled to dividends out of funds legally available when and as declared by our board of directors. Our Board of Directors has never declared a dividend and does not anticipate declaring a dividend in the foreseeable future. Should we decide in the future to pay dividends, as a holding company, our ability to do so and meet other obligations depends upon the receipt of dividends or other payments from our operating subsidiaries and other holdings and investments. In addition, our operating subsidiaries, from time to time, may be subject to restrictions on their ability to make distributions to us, including as a result of restrictive covenants in loan agreements, restrictions on the conversion of local currency into U.S. dollars or other hard currency and other regulatory restrictions. In the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to receive, ratably, the net assets available to stockholders after payment of all creditors.

All of the issued and outstanding shares of our common stock are duly authorized, validly issued, fully paid and non-assessable. To the extent that additional shares of our common stock are issued, the relative interests of existing stockholders will be diluted.

Preferred Stock

We are authorized to issue 1,000,000 shares of preferred stock, par value $0.0001 per share. We may issue shares of preferred stock in one or more classes or series within a class as may be determined by our Board of Directors, who may establish the number of shares to be included in each class or series, may fix the designation, powers, preferences and rights of the shares of each such class or series and any qualifications, limitations or restrictions thereof. Any preferred stock so issued by the Board of Directors may rank senior to the common stock with respect to the payment of dividends or amounts upon liquidation, dissolution or winding up of us, or both. Moreover, under certain circumstances, the issuance of preferred stock or the existence of the un-issued preferred stock might tend to discourage or render more difficult a merger or other change in control.

Transfer Agent and Registrar

Our independent stock transfer agent is Continental Stock Transfer & Trust Company. Their mailing address is 17 Battery Place, 8^th Floor, New York, New York 10004. Their phone number is (212) 509-4000.

MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS

Our common stock is quoted on the OTC Bulletin Board maintained by the National Association of Securities Dealers, Inc. under the symbol “ASCQ.OB” but has not been traded in the Over-The-Counter market except on a limited and sporadic basis.

The following table sets forth, for the periods indicated, the high and last sale prices of our common stock.

	Last Sale Prices ⁽¹⁾
	High		Low
TYD Through February 2012
1^st Fiscal Quarter (1/1/12-2/29/12)		0.48		0.05

Fiscal Year Ended December 31, 2011
1^st Fiscal Quarter		0.20		0.11
2^nd Fiscal Quarter		0.30		0.15
3^rd Fiscal Quarter		0.25		0.11
4^th Fiscal Quarter		0.24		0.05

Year Ended December 31, 2010
1^st Fiscal Quarter		0.07		0.042
2^nd Fiscal Quarter		0.10		0.0311
3^rd Fiscal Quarter		0.07		0.0311
4^th Fiscal Quarter		0.28		0.0311

(1)

The above tables set forth the range of high and low last sale prices per share of our common stock as reported by www.nasdaq.com for the periods indicated.

Reports to Stockholders

We plan to furnish our stockholders with an annual report for each fiscal year ending December 31 containing financial statements audited by our independent certified public accountants. We intend to comply with the periodic reporting requirements of the Exchange Act.

Approximate Number of Holders of Our Common Stock

On March 5, 2012, there are approximately 8 stockholders of record of our common stock. We believe we have significantly more beneficial holders.

RESENT SALE OF UNREGISTERED SECURITIES

Reference is made to the disclosure set forth under Item 3.02 of this report, which disclosure is incorporated by reference into this section.

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

Pursuant to Item 304 of Regulation S-K, there has been no disagreement with accountants or any reportable event that would require additional disclosure in this report.

ITEM 3.02

UNREGISTERED SALES OF EQUITY SECURITIES

On February 29, 2012, we consummated the transactions contemplated the Merger Agreement, as described more fully in Item 1.01 of this report, which disclosure is incorporated herein by reference. Pursuant to the Merger Agreement, we acquired 100% of the outstanding membership interests of Andover Games in exchange for 38,195,025 shares of our common stock issued to the former members of Andover Games. The issuances were made in reliance upon exemptions provided by Section 4(2) of the Securities Act for the offer and sale of securities not involving a public offering and Regulation D promulgated thereunder.

On February 29, 2012, and in connection with the consummation the transactions contemplated the Merger Agreement, Ascend sold an aggregate of 4,000,000 shares of common stock to 15 accredited investors on a private placement basis, for an aggregate purchase price of $2,000,000, or $0.50 per share. The issuances were made in reliance upon exemptions provided by Section 4(2) of the Securities Act for the offer and sale of securities not involving a public offering and Regulation D promulgated thereunder.

On July 27, 2011, Ascend sold an aggregate of 625,000 shares of common stock to three accredited investors on a private placement basis, for an aggregate purchase price of $125,000, or $0.20 per share. On the same day, our then chief executive officer, Jonathan J. Ledecky, converted $35,000 owed to him by Ascend into an aggregate of 175,000 shares of common stock of Ascend. The issuances were made in reliance upon exemptions provided by Section 4(2) of the Securities Act for the offer and sale of securities not involving a public offering.

In instances described above where we issued securities in reliance upon Regulation D, we relied upon Rule 506 of Regulation D of the Securities Act. These stockholders who received the securities in such instances made representations that (a) the stockholder is acquiring the securities for his, her or its own account for investment and not for the account of any other person and not with a view to or for distribution, assignment or resale in connection with any distribution within the meaning of the Securities Act, (b) the stockholder agrees not to sell or otherwise transfer the purchased shares unless they are registered under the Securities Act and any applicable state securities laws, or an exemption or exemptions from such registration are available, (c) the stockholder has knowledge and experience in financial and business matters such that he, she or it is capable of evaluating the merits and risks of an investment in us, (d) the stockholder had access to all of our documents, records, and books pertaining to the investment and was provided the opportunity ask questions and receive answers regarding the terms and conditions of the offering and to obtain any additional information which we possessed or were able to acquire without unreasonable effort and expense, and (e) the stockholder has no need for the liquidity in its investment in us and could afford the complete loss of such investment. Management made the determination that the investors in instances where we relied on Regulation D are accredited investors (as defined in Regulation D) based upon management’s inquiry into their sophistication and net worth. In addition, there was no general solicitation or advertising for securities issued in reliance upon Regulation D.

ITEM 5.01

CHANGES IN CONTROL OF REGISTRANT

Reference is made to the disclosure set forth under Item 2.01 of this report, which disclosure is incorporated herein by reference.

As a result of the consummation the transactions contemplated the Merger Agreement and after giving effect to the Financing, the former members of Andover Games, own 75% of the total outstanding shares of our common stock on a fully diluted basis, subject to further adjustment as provided for in the Merger Agreement.

ITEM 5.02

DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF IRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY RRANGEMENTS OF CERTAIN OFFICERS

In connection with the consummation the transactions contemplated the Merger Agreement, as of February 29, 2012, our chief executive officer, Jonathan J. Ledecky, submitted his resignation letter pursuant to which he resigned as chief executive officer of the Company. However, Mr. Ledecky remains as our chief financial officer on an interim basis and became our non-executive chairman of the board.

On February 29, 2012, in connection with the consummation the transactions contemplated the Merger Agreement, Craig dos Santos was appointed as our chief executive officer and Mr. dos Santos, Jeremy Zimmer, Ben Lewis and Richard Hecker were appointed to the board of directors of Ascend.

For certain biographical and other information regarding the newly appointed officers and directors, see the disclosure under Item 2.01 of this report, which disclosure is incorporated herein by reference.

ITEM 5.06

CHANGE IN SHELL COMPANY STATUS

Reference is made to the disclosure set forth under Item 2.01 and 5.01 of this report, which disclosure is incorporated herein by reference.

ITEM 9.01

FINANCIAL STATEMENTS AND EXHIBITS

(a)

Financial Statements of Business Acquired

Filed herewith are audited consolidated financial statements of Andover Games, LLC as of December 31, 2011 and for the period from January 17, 2011 (inception) through December 31, 2011. Such financial statements are included following this Item 9.01.

(b)

Pro forma financial information

Filed herewith is the unaudited pro forma condensed consolidated financial information of Andover Games, LLC for the requisite periods. Such pro forma condensed consolidated financial information is included following this Item 9.01.

(d)

Exhibits

Exhibit No.		Description

2.1		Merger Agreement and Plan of Reorganization, dated as of December 30, 2011, by and among Ascend Acquisition Corp., Ascend Merger Sub, LLC, Andover Games, LLC and the members of Andover Games, LLC. (Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the SEC on January 4. 2012.)

3.1		Second Amended and Restated Certificate of Incorporation. (Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008 and filed with the SEC on March 31, 2009.)

3.2		By-Laws. (Incorporated by reference to the Registrant’s Registration Statement on Form S-1 or amendments thereto (SEC File No. 333-131529).)

4.1		Specimen Common Stock Certificate. (Incorporated by reference to the Registrant’s Registration Statement on Form S-1 or amendments thereto (SEC File No. 333-131529).)

10.1		Development and Licensing Agreement dated May 18, 2011 between Andover Fund, LLC and Infinitap Games, LLC.

10.2		License Agreement dated May 18, 2011, between Andover Fund, LLC and Infinitap Games, LLC.

10.3		Operating Agreement for Manager-Managed Rotvig Labs, LLC dated as of January 28, 2011.

10.4		Membership Interest Agreement dated May 7, 2011 between all the Members of Rotvig Labs, LLC and Concept Art House, Inc.

10.5		Service and Profit Sharing Agreement dated April 19, 2011 between Rotvig Labs, LLC and Concept Art House, Inc.

10.6		Note Purchase Agreement dated August 31, 2011 by and among Ecko Entertainment, Inc. and each of the purchasers listed on the Schedule of Purchasers attached thereto as Exhibit A.

10.7		Note Purchase Agreement dated September 14, 2011 by and among Game Closure Inc. and the persons named on the Schedule of Purchasers attached thereto.

10.8		Intentionally Omitted.

10.9		Operating Agreement for Member-Managed Byte Factory LLC dated September 18, 2011.

10.10		Tapjoy Publisher Agreement: Term Sheet by and between Andover Fund, LLC and Tapjoy dated March 29th, 2011.

10.11		Intentionally Omitted.

10.12*		Employment Agreement dated November 1, 2011 between Andover Fund, LLC and Craig Dos Santos.

10.13*		Consulting Agreement dated February 29, 2012 between Registrant and Traction and Scale, LLC (Richard Hecker).

10.14*		Consulting Agreement dated February 29, 2012 between Registrant and Jonathan Ledecky.

10.15		Form of Lock Up Agreement between Registrant and each of Craig dos Santos, Richard Hecker, Ben Lewis, Lee Linden, Jon Diamond, Jonathan J. Ledecky and Ironbound Partners Fund, LLC. (Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the SEC on January 4. 2012.)

10.16		Form of Right of First Look Agreement between Registrant and Craig dos Santos, Richard Hecker, Lee Linden, Ben Lewis and Jon Diamond. (Incorporated by reference to the Registrant’s Current Report on Form 8-K filed with the SEC on January 4. 2012.)

10.25		Form of Subscription Agreement between Registrant and the certain investors.

10.26		Form of Indemnification Agreement.

21		List of subsidiaries of the Registrant.

99.1		Press Release, dated March 2, 2012

* Indicates management compensatory plan, contract or arrangement.

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Financial Statements

December 31, 2011

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Index to the Financial Statements

December 31, 2011

	Page

Independent Auditors' Report on the Financial Statements	F-1 – F-2

Financial Statements

Consolidated Balance Sheet	F-3

Consolidated Statement of Operations and Members' Deficiency	F-4

Consolidated Statement of Cash Flows	F-5

Notes to the Consolidated Financial Statements	F-6 – F-14

INDEPENDENT AUDITORS’ REPORT

To the Managing Members of

Andover Games, LLC

We have audited the accompanying consolidated balance sheet of Andover Games, LLC and Subsidiary (a development stage company) (the “Company”) as of December 31, 2011, and the related consolidated statements of operations and members’ deficiency and cash flows for the period from January 17, 2011 (inception) through December 31, 2011. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Andover Games, LLC and Subsidiary (a development stage company) as of December 31, 2011, and the results of its operations, and its cash flows for the period from January 17, 2011 (inception) through December 31, 2011, in conformity with accounting principles generally accepted in the United States of America.

F-1

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company has incurred a substantial loss from operations for the period from January 17, 2011 (inception) through December 31, 2011. Based on the Company’s liquidity position, continued losses could result in the Company not having sufficient liquidity or minimum cash levels to operate its business. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plan in regard to these matters is also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of these uncertainties.

/s/ Marcum LLP

Marcum LLP

Melville, NY

February 27, 2012, except for note 11(b) of which the date is March 6, 2012.

F-2

Andover Games, LLC and Subsidiary
(A Development Stage Company)
Consolidated Balance Sheet
December 31, 2011

Assets
Current Assets
Cash ($25,000 related to the variable interest entity)			$	80,588
Convertible note receivable				50,000
Accrued interest receivable				833

Total Current Assets				131,421

Investments in private companies				114,505
Equipment, at cost				815

Total Assets			$	246,741

Liabilities and Members' Equity (Deficiency)
Current Liabilities
Accounts payable and accrued expenses			$	78,307
Payroll tax liabilities				27,601
Convertible note payable				50,000
Due to member (liability of the variable interest entity)				4,500

Total Current Liabilities				160,408

Deferred revenue				206,250

Total Liabilities				366,658

Commitments and Contingencies				-

Members' Deficiency
Members' Deficiency Accumulated During the
Development Stage:
Controlling Members' Interest	(147,341	)
Non-controlling Members' Interest	27,424			(119,917	)

Total Liabilities and Members' Deficiency			$	246,741

The accompanying notes are an integral part of these consolidated financial statements.

F-3

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Consolidated Statement of Operations and Members' Deficiency

From January 17, 2011 (Date of Inception) to December 31, 2011

Revenues	$	18,750

Software development costs		124,650
Selling General and Administrative Expenses
Salaries		62,500
Payroll taxes		5,149
Office expenses		4,710
Professional fees		153,771
Other administrative expenses		5,500

Total Selling, General and Administrative Expenses		231,630

Loss from Operations ($300,054 attributable to controlling interest)		(337,530	)

Other Income (Expense):
Interest Income		1,074
Impairment of Investment		(3,727	)
Equity Loss from Investment		(12,009	)

Total Other Income (Expense)		(14,662	)

Net Loss		(352,192	)
Less: Net Loss Attributable to the Non-controlling Interest		37,476
Net Loss Attributable to the Controlling Interest	$	(314,716	)

Members' Equity at Beginning of Period	$	-
Controlling Members' Contributions		167,375
Non-controlling Members' Contributions (net of receivable for $100)		64,900
Net Loss - Controlling Interest		(314,716	)
Net Loss - Non-controlling Interest		(37,476	)
Members' Deficiency at End of Period	$	(119,917	)

The accompanying notes are an integral part of these consolidated financial statements.

F-4

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Consolidated Statement of Cash Flows

From January 17, 2011 (Date of Inception) to December 31, 2011

Cash Flows From Operating Activities
Net Loss	$	(352,192	)
Adjustments to Reconcile Net Loss to Net Cash Used in
Operating Activities
Impairment of investment		3,727
Equity loss from investment		12,009
Compensation for software development costs in exchange for non-controlling interest		64,900
Direct payment of operating expenses by member		4,500
Changes in Assets and Liabilities
Accrued interest receivable		(1,074	)
Accounts payable and accrued expenses		78,307
Payroll tax liabilities		27,601
Deferred revenue		206,250

Net Cash Used in Operating Activities		44,028

Cash Flows From Investing Activities
Purchases of equipment		(815	)
Investments in private companies		(50,000	)
Purchase of convertible notes receivables		(130,000	)

Net Cash Used in Investing Activities		(180,815	)

Cash Flows From Financing Activities
Proceeds from convertible note payable		50,000
Members' contributions		167,375

Net Cash Provided by Financing Activities		217,375

Net Increase in Cash		80,588
Cash at Beginning of Period		-
Cash at End of Period	$	80,588

Supplemental disclosure of non-cash financing activities:

Conversion of note receivable/accrued interest into investment in preferred stock of company	$	80,241

The accompanying notes are an integral part of these consolidated financial statements.

F-5

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Nature of Organization

Andover Games, LLC, (the "Company") a development stage company, is a limited liability company formed on January 17, 2011 under the laws of the State of Delaware as Andover Fund, LLC. The name was changed in December, 2011 to Andover Games, LLC. The entity has an indefinite life. The Company's principal business is focused on developing mobile games for iPhone and Android platforms.

Development Stage Company

The Company is a development stage company as defined by section 810-10-20 of the Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC"). The Company is still devoting substantially all of its efforts on establishing the business and its planned principal operations have not commenced.

Principles of Consolidation

The consolidated financial statements include the accounts of the Company and the less than majority owned variable interest entity which it controls (see NOTE 3). Significant inter-company accounts and transactions have been eliminated in consolidation.

Cash

For purposes of the statement of cash flows, the Company considers all highly liquid instruments purchased with a maturity of three months or less and money market accounts to be cash equivalents.

Investments in private companies

Investments in private companies in which the Company owns less than 20% of the entity and does not influence the operating or financial decisions of the investee are carried at cost. The Company reviews the investments for impairment and records a loss on impairment based on the difference between the fair value of the investment and the carrying amount when indicators of impairment exist.

Equipment

Equipment is carried at cost and is depreciated on a straight-line basis over the estimated useful lives of the assets. The cost of repairs and maintenance is expensed as incurred; major replacements and improvements are capitalized. When assets are retired or disposed of, the cost and accumulated depreciation are removed from the accounts, and any resulting gains or losses are included in income in the year of disposition. The Company examines the possibility of decreases in the value of fixed assets when events or changes in circumstances reflect the fact that their recorded value may not be recoverable.

Income Taxes

The Company is a limited liability company (an "LLC") and is treated as a partnership for income tax purposes. As such, the members of the LLC are taxed on their proportionate share of the Company's taxable income. Therefore, no provision or liability for federal or state income taxes has been included in the consolidated financial statements.

Management has concluded that the Company is a pass-through entity and there are no uncertain tax positions that would require recognition in the consolidated financial statements. If the Company were to incur an income tax liability in the future, interest on any income tax liability would be reported as interest expense and penalties on any income tax would be reported as income taxes. Management’s conclusions regarding uncertain tax positions may be subject to review and adjustment at a later date based upon ongoing analyses of tax laws, regulations and interpretations thereof as well as other factors. Generally, Federal, State and Local authorities may examine the Company’s tax returns for three years from the date of filing and as a result the current year remains subject to examination.

F-6

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

Software development costs

In accordance with ASC 985-20 “Accounting for the Cost of Computer Software to be Sold, Leased or Otherwise Marketed,” software development costs are expensed as incurred until technological feasibility (generally in the form of a working model) has been established. Research and development costs which consist primarily of salaries and fees paid to third parties for the development of software and applications are expensed as incurred. The Company capitalizes only those costs directly attributable to the development of the software. Capitalization of these costs begins upon the establishment of technological feasibility. Activities undertaken after the products are available for release to customers to correct errors or keep the product up to date are expensed as incurred. Capitalized software development costs will be amortized over the estimated economic life of the software once the product is available for general release to customers. Capitalized software development costs will be amortized over the greater of the ratio of current revenue to total projected revenue for a product or the straight-line method. The Company will periodically perform reviews of the recoverability of such capitalized software costs. At the time a determination is made that capitalized amounts are not recoverable based on the estimated cash flows to be generated from the applicable software, any remaining capitalized amounts are written off. During the period from January 17, 2011 (inception) through December 31, 2011, the Company expensed $124,650 in software development costs.

Revenue Recognition

The Company evaluates revenue recognition based on the criteria set forth in FASB ASC 985-605, “Software: Revenue Recognition.” The Company recognizes revenue when persuasive evidence of an arrangement exists, the product, image or game has been delivered, the fee is fixed or determinable, and collectability is reasonably assured. The Company’s specific revenue recognition policies are as follows:

The Company recognizes revenue from the sale of its social games and mobile applications (“Apps”) from two revenue sources: direct payment revenue or alternative payment service revenue. Direct payment revenue results from payments from the end users of Apps for virtual goods or currency (i.e. items within the game and virtual money to buy items and upgrades in a game) in an application from a variety of direct payment sources, less deductions for fraud, charge-backs, refunds, credit card processing fees or uncollected amounts (assuming all other recognition criteria are met). Alternative payment service revenue results from utilization of the platform provided by a publisher that is party to a collaborative arrangement with the Company (see “Collaborative Arrangement”). The publisher's platform incentivizes end users to complete certain tasks in response to advertisements presented within the application (i.e. to purchase other applications on the publisher’s platform). Revenue from the alternative payment service (subject to a “Recoupment Amount” by the vendor - see NOTE 10) would be recognized as the service is rendered, with a portion of the revenue allocated to the vendor. If the service period is not defined, the Company would recognize the revenue over the estimated service period. In conjunction with the collaborative arrangement, the Company receives proceeds that are recognized on a straight line basis over the period that the Company is required to keep its applications on the publisher’s platform.

Advertising Costs

Advertising costs are charged to operations when incurred. There were no advertising costs incurred for the period from January 17, 2011 (inception) through December 31, 2011.

Non-controlling Interest

The Company has consolidated Rotvig Labs, LLC ("Rotvig" - see NOTE 3), which qualifies as a variable interest entity (“ VIE”) because the Company determined that it is the primary beneficiary and has a controlling financial interest. Therefore, Rotvig’s financial statements are consolidated in the Company’s consolidated financial statements and the other member’s equity in Rotvig is recorded as non-controlling member’s interest as a component of consolidated members’ equity. At December 31, 2011, non-controlling interest was $27,424.

F-7

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

Going Concern

The financial statements have been prepared assuming that the Company will continue as a going concern. The Company had minimal revenue inception-to-date, and the Company has incurred a substantial loss from operations for the period from January 17, 2011 (inception) through December 31, 2011. Based on the Company’s liquidity position, continued losses could result in the Company not having sufficient liquidity or minimum cash levels to operate its business. These conditions raise substantial doubt about the Company's ability to continue as a going concern. Management's plan in regard to these matters includes raising additional proceeds from debt and equity transactions (see note 11(b) for a description of the subsequent financing received) and completing strategic acquisitions that will generate positive cash flows. The consolidated financial statements do not include any adjustments that might result from the outcome of these uncertainties.

Use of Estimates

The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The significant estimates utilized related to the impairment of investment in companies. Actual results could differ from those estimates.

Recent Accounting Pronouncements

Accounting standards that have been issued or proposed by FASB that do not require adoption until a future date are not expected to have a material impact on the financial statements upon adoption.

Subsequent Events

The Company evaluated the events and transactions subsequent to December 31, 2011 balance sheet date and through February 27, 2012, except for note 11(b) in which events described were evaluated through March 6, 2012 which is the date the financial statements were issued, to determine if they require potential adjustment to or disclosure in the financial statements. Except as disclosed in NOTE 11, the Company concluded no other events required disclosure in the financial statements.

NOTE 2 - CONVERTIBLE NOTE RECEIVABLE

In August 2011 the Company invested $50,000 in an unsecured convertible promissory note issued by Ecko Entertainment, Inc. ("Ecko"). The note bears interest at 5% and matures on August 31, 2012. In the event Ecko closes a qualified financing of $2,000,000 prior to maturity of the note, all principal and accrued interest then outstanding will automatically convert into shares of common stock. The price per share for such conversion shall equal the lesser of i) 70% of the price per share of the capital stock paid by investors in the qualified financing or ii) the price per share that would result based on a valuation of the company immediately prior to the closing of the qualified financing equal to $15,000,000. The Company accrued $833 in interest related to the note as of December 31, 2011.

In the event Ecko closes an equity financing which is not deemed a qualified financing, on, prior to or after the maturity date, or closes a qualified financing after the maturity date, the Company, at its option, may convert all of the principal and accrued interest then outstanding at the same terms as noted above.

F-8

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 3 - VARIABLE INTEREST ENTITY

Rotvig Labs, LLC

In January 2011, the Company acquired a 50% membership interest in Rotvig Labs, LLC ("Rotvig Labs") for $25,000. Rotvig Labs is also involved on developing applications for the mobile game industry. The Company evaluated its investment in Rotvig Labs and determined that it was the primary beneficiary and held a controlling interest in Rotvig Labs, and that the assets, liabilities and operations of Rotvig Labs should be consolidated into its financial statements. The key assumption in making this determination was that the Company held the sole cash basis investment at risk in the entity and share common management. The other founding member contributed services to the entity, which were recorded based on the agreed-upon capital contribution of $25,000, which approximates the fair value of the services rendered and the non-controlling interest at acquisition. The assets of Rotvig Labs can only be used to satisfy the liabilities of Rotvig Labs.

Included in the accompanying financial statements are the following assets and liabilities of Rotvig Labs as of

Assets:
Cash	$	25,000

Liabilities:
Due to member of Andover Games, LLC		4,500

In April 2011, Rotvig Labs entered into a Service and Profit Sharing Agreement with Concepts Art House, Inc ("CAH"), a graphics design company. Under this agreement, CAH would provide $40,000 in committed art services in exchange for an eight percent (8%) membership interest in Rotvig Labs. CAH's membership interest is subject to vesting, whereby the equity interest is earned 25% for each $10,000 of committed art services provided for under the agreement. As of December 31, 2011, CAH had provided all such services and therefore had earned an 8% membership interest. Thus, the Company owns 46% of the membership interest of Rotvig Labs at December 31, 2011. In addition, CAH is entitled to profit sharing of 16% of Rotvig Labs’ gross revenue up to a cumulative amount of $80,000. After the cumulative 80% is reached CAH is entitled to 8% of gross revenues.

NOTE 4 - INVESTMENTS IN PRIVATE COMPANIES

Game Closure, Inc.

On September 14, 2011, the Company invested $80,000 in an unsecured and subordinated convertible promissory note issued by Game Closure, Inc. ("GCI"). The note bore interest at 2%, and had a maturity date of September 14, 2013. In December 2011, GCI issued and sold shares of its Preferred Stock to investors in an equity financing of at least $1,000,000 including conversion of this note. Based on the terms of the note, the outstanding principal and accrued interest then outstanding at the closing of the financing automatically converted into shares of Series A Preferred Stock equal to the the number obtained by dividing the aggregate amount of principal and accrued interest outstanding by the amount equal to the lesser of i) 100% of the purchase price for the Preferred Stock in the financing or ii) the price per share of such Preferred Stock assuming a $16,000,000 fully diluted pre-money valuation of the company. Upon conversion of principal of $80,000 and accrued interest of $241, the Company received 174,989 shares of Series A Preferred Stock of GCI. The holders of this Series A Preferred Stock have a non-cumulative dividend right at a rate of $0.0871128 per annum and conversion privileges at $1.08891 per share (unless automatically converted upon a qualified financing). The investment is accounted for using the cost method.

F-9

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 4 - INVESTMENTS IN PRIVATE COMPANIES (continued)

Tumbleweed Technologies, LLC/Byte Factory, LLC

In July 2011, the Company invested $50,000 for a 33% membership interest in Tumbleweed Technologies, LLC ("Tumbleweed"). Subsequently, in September 2011, the Company contributed its interest in Tumbleweed for a 6.5% membership interest in Byte Factory, LLC ("Byte Factory"). The Company accounted for its investment in Tumbleweed under the equity method of accounting through the date of its transfer to Byte Factory. During the period from July 2011 through the date of transfer, the Company recognized losses under the equity method totaling $12,009, reducing the carrying value of the investment to $37,991. The Company accounts for its investment in Byte Factory under the cost method of accounting. Subsequent to December 31, 2011, the Company learned that Byte Factory was in the process of dissolution. Because of this fact, the Company assessed the value of its investment to determine whether there was any subsequent decline in value. The Company estimated the fair value of its investment in Byte Factory using a discounted cash flow model and determined there was a decline in value below the carrying value at December 31, 2011 that was other than temporary and recognized an impairment loss of $3,727, reducing the carrying value to $34,264.

NOTE 5 - EQUIPMENT AND IMPROVEMENTS

Equipment and improvements consists of the following as of December 31, 2011:

Equipment	$	815
Less accumulated depreciation		-
	$	815

NOTE 6 - FINANCIAL INSTRUMENTS

Concentrations of Credit Risk

At times throughout the year, the Company may maintain certain bank accounts in excess of FDIC insured limits. These cash balances are held at one financial institution.

Fair Value

The Company has financial instruments, including investments in companies at cost, convertible notes receivable, and contingently convertible debt, none of which are held for trading purposes. The Company estimates that the fair value of all financial instruments at December 31, 2011 does not differ materially from the aggregate carrying values of its financial instruments recorded in the accompanying balance sheet. The estimated fair value amounts have been determined by the Company using available market information and appropriate valuation methodologies. Considerable judgment is necessarily required in interpreting market data to develop the estimates of fair value, and, accordingly, the estimates are not necessarily indicative of the amounts that the Company could realize in a current market exchange.

F-10

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 7 - CONVERTIBLE NOTE PAYABLE

On December 30, 2011, the Company issued a convertible bridge note in the amount of $50,000 with Ascend Acquisition Corp. (see NOTE 10). The note bears interest at the prime rate (3.25%) plus 5% on an annual basis. Unless prepaid, accelerated or converted in accordance with the terms outlined below, the note and any accrued interest shall be due and payable on the earlier of (i) the closing of the merger transaction contemplated between the holder and the Company (see NOTE 10, below) and (ii) June 30, 2012.

In the event that the Company consummates, prior to the maturity date, an equity financing with aggregate proceeds of not less than $2,000,000, the note and any accrued interest may be converted at the option of the holder into equity securities at a price per unit/share equal to 80% of the price per unit/share of the equity securities, or the holder may require prepayment in full of the principal and accrued interest. The contingent option of the holder was accounted for as a contingent beneficial conversion option as the event that triggers conversion was within the Company’s control. The intrinsic value of the beneficial conversion option at the date of grant was $12,500 and will be recognized in the event that the contingency is resolved.

NOTE 8 - FAIR VALUE MEASUREMENTS

ASC 820, Fair Value Measurements and Disclosures, establishes a framework for measuring fair value. That framework provides a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3 measurements). The three levels of the fair value hierarchy under ASC 820 are described as follows:

(1)

Level 1 - Inputs to the valuation methodology are unadjusted quoted prices for identical assets or liabilities in active markets that the Company has the ability to access.

(2)

Level 2 - Inputs other than quoted prices that are observable for the asset or liability; inputs that are derived principally from or corroborated by observable market data by correlation or other means. If the asset or liability has a specified (contractual) term, the level 2 input must be observable for substantially the full term of the asset or liability.

Inputs to the valuation methodology include:

• quoted prices for similar assets or liabilities in active markets;

• quoted prices for identical or similar assets or liabilities in inactive markets;

(3)

Level 3 - Inputs to the valuation methodology are unobservable and significant to the fair value measurement.

The asset's or liability's fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize the use of unobservable inputs.

F-11

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 8 - FAIR VALUE MEASUREMENTS (continued)

Following is a description of the valuation methodologies used for assets and liabilities recognized at fair value. There have been no changes in the methodologies used during the period from January 17, 2011 (inception) through December 31, 2011.

Investment in companies, cost method: The fair value of one of the investments in companies under the cost method has been estimated due to identified events or changes in circumstances that may have had a significant adverse effect on the fair value. The Company used a discounted cash flow model to estimate fair value and determined the impairment was other than temporary. The Company applied a 20% discount rate to the expected future cash flows to determine the fair value.

The table below represents the Company's assets and liabilities that are recorded at fair value on a non-recurring basis. There were no assets or liabilities recorded at fair value on a recurring basis.

			Fair Value Measurements at Reporting Date Using
			Quoted Prices		Significant
			in Active		Other		Significant
			Markets for		Observable		Unobservable
			Identical Assets		Inputs		Inputs
	12/31/11		(Level 1)		(Level 2)		(Level 3)
Investment in company, cost method	$	34,264		-		-	$	34,264
	$	34,264	$	-	$	-	$	34,264

NOTE 9 - MEMBERSHIP INTERESTS

A total of 10,000,000 membership units are authorized, issued and outstanding at December 31, 2011. The Operating Agreement provided for initial capital contributions of $160,000, with each of two members holding a 50% membership interest. Allocations of net income or loss are allocated to the members in accordance with their respective percentage interests. In May 2011, another member was admitted, with a revised membership interest of 33 1/3% for each member. The new member's interest would vest ratably the first of each month after the amendment over a four year term. These three members are referred to as the "Founders". In October 2011, the Operating Agreement was again amended to re-allocate membership interests and grant membership interests to two additional individuals for additional cash contributions totaling $2,278. In addition, the member who was admitted in May 2011 contributed $5,097 for his membership interest. The contributions made by these three members in October 2011 were made in amounts that approximated the fair value of the units received.The holders of the top four membership percentage interests are referred to as the "Signatory Members". In addition, the two original members of the Company were granted priority distribution rights of $205,000 each for any distributions of profits or net proceeds arising from any sale of the Company. Founders that have not been terminated have certain rights to repurchase the unvested equity interests of the other members if the services of any such member are terminated. These purchase rights lapse over time until such time that each member's units are considered "vested". The purchase rights shall be exercisable by the remaining Signatory Members pro rata with their holdings (vested and unvested) at an exercise price equal to the original price paid per membership unit purchased. Units that have not yet vested are subject to acceleration upon the occurrence of certain financing or restructuring events, or upon the achievement of certain revenue milestones. As of December 31, 2011, the purchase rights had lapsed and membership interests had “vested” for a total of 967,223 units.

F-12

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 10 - COMMITMENTS AND CONTINGENCIES

The Company is party to a Publisher Agreement with a service provider to generate publishing revenue. The Company received $225,000 in deposits by the publisher. Two members of the Company also co-founded this service provider. The Company may earn revenue based on direct payments under the application (100% of such payments allocated to the Company) and/or based on alternative payment service revenue which results from utilization of the platform provided by the publisher which incentivizes end users to complete certain tasks in response to advertisements presented within the application (i.e. to purchase other applications on the publisher’s platform) (70% of such revenues allocated to the Company). The latter revenue source is shared with the publisher, who will be the exclusive provider of the service that incentivizes the site user completion described above starting from the date that the first application begins utilizing this service. This revenue is subject to a $50,000 recoupment (the “Recoupment Amount”) which would be withheld by the service provider in settlement of the $225,000 deposit or any marketing credits (as discussed below) that it provides to the Company. The Company is required to maintain exclusivity on the Publisher’s platform for 24 months, plus any extension period. In addition, the Company can receive $50,000 in marketing credits, which may be used in lieu of other forms of payment and only for the promotion and distribution of the applications within the publisher's network.

In May 2011, the Company entered into a Development and Licensing Agreement with a consultant to build an Android game platform for the Company. The Agreement called for a payment of $32,500 upon the execution of the agreement, and the final payment of $32,500 when the product is completed as agreed upon by the parties and shipped. The application was deployed as of December 31, 2011, with $55,250 expensed for software application development costs with $9,750 to be recognized in future periods based on the completion of services. The consultant will also be entitled to 20% of the net revenue paid to the Company by the publisher above (which primarily markets on Android) or Apple, Inc. platforms (less any marketing credits paid by the third parties), but only effective after the Company first receives $65,000 in such net revenue.

In May 2011, the Company entered into an Employment Agreement with an individual who became a Signatory member in October 2011 (see NOTE 9 above). The individual's employment was approved as Managing Director. The agreement term is for one year unless terminated by good cause, and renews automatically for one year unless cancelled six months from the date of signing. The employee’s annual salary is $225,000 per the terms of the employment agreement.

In November 2011, the Company entered into Employment Agreements with the Chief Executive Officer and Executive Vice President. The individuals' employment will begin upon the closing of a minimum financing of $250,000. Both agreements' term are for one year unless terminated by good cause, and renew automatically for one year unless cancelled six months from the date of signing. The employee’s annual salary is $150,000 per the terms of the employment agreement.

In November 2011, the Company entered into an Employment Agreement with a Non-Executive Chairman. The individual's employment will begin upon the closing of a minimum financing of $5,000,000. The agreement may be terminated for good cause within the first year. The employee’s annual salary is $150,000 per the terms of the employment agreement.

F-13

Andover Games, LLC and Subsidiary

(A Development Stage Company)

Notes to the Consolidated Financial Statements

NOTE 10 - COMMITMENTS AND CONTINGENCIES (continued)

In December 2011, the Company entered into a Merger Agreement and Plan of Reorganization with Ascend Acquisition Corp ("Ascend"), a publicly traded shell company. The effective date of the merger will be upon closing of the transaction, which had not occurred as of December 31, 2011. Upon the closing of the transaction, the members of the Company will exchange their membership interests for common stock of Ascend, which will provide the former members with a minimum ownership of 75% of the fully diluted capitalization of Ascend.

NOTE 11 - SUBSEQUENT EVENTS

(a)

In January 2012, the Company issued a convertible bridge note in the amount of $200,000 to Ascend under the same terms as described in Note 7.

(b)

On February 29, 2012, the Company and Ascend closed the transactions under the Merger Agreement and Plan of Reorganization (the “Merger Agreement”) with the Company becoming a wholly-owned subsidiary of Ascend (the "Closing"). At the Closing, the holders of membership interests of the Company received 38,195,025 shares of Ascend common stock, representing 75% of the fully diluted capitalization of Ascend immediately after the closing of the merger and the Financing (defined below), subject to further adjustment as provided for in the Merger Agreement.

Pursuant to the Merger Agreement, Ascend was obligated to use its commercial best efforts to raise at least $4 million of equity capital through the sale of Ascend's capital stock (the "Financing"), of which at least $2 million was to be raised prior to or simultaneously with the closing and such additional proceeds are to be raised, if at all, within the next 30 days so as to raise up to $4 million in aggregate proceeds. Pursuant to the Merger Agreement, Ascend is required to use its commercial best efforts to raise an additional $2 million of proceeds within 30 days after the Closing. Pursuant to the Merger Agreement, if Ascend sells additional shares of its capital stock in the Financing during such period, Ascend will issue additional shares of its common stock to the former members of the Company to maintain their collective ownership of Ascend common stock at 75% on a fully diluted basis. Alternatively, if Ascend sells less than the maximum $4 million in aggregate proceeds in the Financing, then such number of additional shares of Ascend capital stock shall be issued to the former members of the Company at the final closing of the Financing so as to increase their collective pro-rata percentage ownership in Ascend by one percent (1%) for every $200,000 in proceeds that Ascend falls short of the $4 million maximum proceeds in the Financing.

Simultaneously with the Closing, Ascend sold 4,000,000 shares of its common stock, at $0.50 per share, for gross proceeds of $2 million pursuant to the Financing. In addition, The Company repaid $250,000 of outstanding convertible notes payable to Ascend.

F-14

ASCEND ACQUISITION CORP.

(A Development Stage Company)

PRO FORMA FINANCIAL INFORMATION

(UNAUDITED)

On December 30, 2011 Ascend Acquisition Corp., a Delaware corporation (“Ascend”), entered into a Merger Agreement and Plan of Reorganization (the “Merger Agreement”) by and among Ascend, Ascend Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Ascend (“Merger Sub”), Andover Games, LLC, a Delaware limited liability company (“Andover Games”), and the members of Andover Games (“Signing Members”). Ascend was a non-operating public shell. On February 29, 2012, the parties closed the transactions under the Merger Agreement and, pursuant to the Merger Agreement, the Merger Sub merged with and into Andover Games, with Andover Games surviving the merger and becoming a wholly-owned subsidiary of Ascend.

At the close of the merger, the holders of membership interests of Andover Games received 38,195,025 shares of Ascend common stock, representing 75% of the fully diluted capitalization of Ascend immediately after the closing of the merger and the Financing (defined in Notes to Pro Forma Statements below), subject to further adjustment as provided for in the Merger Agreement.

For accounting purposes, the acquisition will be treated as an acquisition of Ascend by Andover Games and as a recapitalization of Andover Games as Andover Games members will hold a majority of the Ascend shares and will exercise significant influence over the operating and financial policies of the consolidated entity and Ascend was a non-operating public shell prior to the transaction. Pursuant to Securities and Exchange Commission rules, the merger or acquisition of a private operating company into a non-operating public shell with nominal assets is considered a capital transaction in substance rather than a business combination.

The following unaudited pro forma information as of December 31, 2011 and for the period from January 17, 2011 (inception) thorough December 31, 2011 is presented herein to show the effect of the merger transactions noted above as if the merger took place at December 31, 2011 for the pro forma condensed balance sheet and at the beginning of the period presented for the pro forma condensed statement of operations. The unaudited pro forma financial information does not necessarily reflect the results of operations that would have occurred had Ascend constituted a single entity during the period presented.

PF-1

Ascend Acquisition Corporation

(A Development Stage Company)

Proforma Condensed Balance Sheets

December 31, 2011

	Ascend Acquisition Corporation			Andover Games, LLC			Proforma Adjustments			Proforma Combined
	December 31, 2011			December 31, 2011			December 31, 2011			December 31, 2011

ASSETS

Current assets:
Cash and cash equivalents ($25,000 related to variable interest entity)	$	30,461		$	80,588		$	2,000,000	(b)	$	2,111,049

Note receivable		50,000			-			(50,000	)(a)		-
Convertible note receivable		-			50,000			-			50,000
Accrued interest receivable		-			833			-			833
Total current assets		80,461			131,421			1,950,000			2,161,882
Investments in private companies		-			114,505			-			114,505
Equipment, at cost		-			815			-			815

Total assets	$	80,461		$	246,741		$	1,950,000		$	2,277,202

LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)

Current liabilities:
Accounts payable and accrued expenses	$	916		$	78,307		$	-		$	79,223
Advances from related party ($4,500 related to variable interest entity)		1,626			4,500			-			6,126
Payroll tax liabilities		-			27,601			-			27,601
Convertible note payable		-			50,000			(50,000	)(a)		-
Total current liabilities	$	2,542		$	160,408		$	(50,000	)	$	112,950

Deferred revenue		-			206,250			-			206,250

Total liabilities	$	2,542		$	366,658		$	(50,000	)	$	319,200

Stockholders' Equity (Deficit)
Controlling Interest
Preferred stock, $0.0001 par value, 1,000,000 shares authorized; none issued		-			-			-			-

Common stock, $0.0001 par value, 300,000,000 shares authorized; 50,926,700 shares issued and outstanding		873			-			400	(b)		5,093
								3,820	(c)
Additional paid-in capital		655,398			-			1,999,600	(b)		2,240,201
								(414,797	)(c)

Deficit accumulated during the development stage		(578,352	)		(147,341	)		410,977	(c)		(314,716	)
Total Stockholders' Equity of Ascend Acquisition Corporation		77,919			(147,341	)		2,000,000			1,930,578

Non-controlling interest		-			27,424						27,424

Total stockholders' equity (deficit)		77,919			(119,917	)		2,000,000			1,958,002

Total liabilities and stockholders' equity (deficit)	$	80,461		$	246,741		$	1,950,000		$	2,277,202

PF-2

Ascend Acquisition Corporation

(A Development Stage Company)

Proforma Condensed Statements of Operations

	Ascend			Andover Games, LLC						Proforma Combined
	Acquisition			Period From			Proforma			Period From
	Corporation			January 17, 2011			Adjustments			January 17, 2011
	Year Ended			(Inception) to			Year Ended			(Inception) to
	December 31, 2011			December 31, 2011			December 31, 2011			December 31, 2011

Revenues	$	-		$	18,750		$	-		$	18,750

Operating expenses:
Software development costs		-			124,650			-			124,650
General and administrative expenses		80,048			231,630			476,767	(d)		788,445
Total operating expenses		80,048			356,280			476,767			913,095

Loss from operations		(80,048	)		(337,530	)		(476,767	)		(894,345	)

Other income (expense):
Equity loss from investment		-			(12,009	)		-			(12,009	)
Other income (expense)		(366	)		(2,653	)		-			(3,019	)

Net loss		(80,414	)		(352,192	)		(476,767	)		(909,373	)
Less: Net loss attributable to non-controlling interest		-			37,476			-			37,476

Net loss attributable to controlling interest	$	(80,414	)	$	(314,716	)	$	(476,767	)	$	(871,897	)

Weighted average common shares outstanding, basic and diluted		8,064,757						40,320,025	(e)		48,384,782

Net loss per common share, basic and diluted	$	(0.01	)							$	(0.02	)

PF-3

ASCEND ACQUISITION CORP.

(A Development Stage Company)

PRO FORMA FINANCIAL INFORMATION

Notes to Pro forma Statements

The following adjustments would be required if the transaction had occurred as of December 31, 2011.

(a)

To eliminate the bridge loan entered into between Ascend and Andover Games in December 2011 (see “Bridge Loans” below)

(b)

To record the effect of the $2 million financing (condition precedent to the closing)

(c)

To record effect of reverse merger recapitalization of Andover Games (Note: see “Financing” below)

The following adjustments would be required if the transaction had occurred at the beginning of the period presented.

(d)

To record pro forma compensation expense (and related payroll tax expense) for employment agreements entered into with named executive officers and directors.

(e)

To record pro forma adjustment to weighted average shares outstanding for the period presented.

The historical information in these Pro Forma Statements for Ascend as of and for the year ended December 31, 2011 is derived from the audited financial statements included in its annual report on Form 10-K filed February 28, 2012. The historical information in these Pro Forma Statements for Andover as of December 31, 2011 and for the period from January 17, 2011 (Inception) through December 31, 2011 is derived from the audited financial statements included herein this Form 8-K.

Bridge Loans

Pursuant to the Merger Agreement, Ascend provided bridge loans in the aggregate amount of $250,000 to Andover Games (the “Bridge Loans”), with $50,000 provided prior to December 31, 2011. To provide the necessary funding for Ascend to make the above-referenced Bridge Loans, Ascend received a loan from Ironbound (the “loan”) in an aggregate principal amount of $250,000 and in return issued to Ironbound a convertible promissory note to evidence the loan. Both the Bridge Loans and loan were due on the closing of the merger and were repaid. Since the loan and $200,000 of the Bridge Loans would have been paid in full at closing, these items have been excluded from the presentation of the pro forma statements.

PF-4

ASCEND ACQUISITION CORP.

(A Development Stage Company)

PRO FORMA FINANCIAL INFORMATION

Notes to Pro forma Statements

Financing

Pursuant to the Merger Agreement, Ascend was obligated to use its commercial best efforts to raise at least $4 million of equity capital through the sale of Ascend’s capital stock (the “Financing”), of which at least $2 million was to be raised prior to the closing of the merger and such additional proceeds are to be raised, if at all, within the 30 days post-closing so as to raise $4 million in aggregate proceeds. Prior to the consummation of the merger, Ascend sold 4,000,000 shares (“Shares”) of its common stock, at $0.50 per share, for the gross proceeds of $2 million. Pursuant to the Merger Agreement, if Ascend sells additional shares of its capital stock during the 30 days post-closing Ascend will issue additional shares of its common stock to the former members of Andover Games to maintain their collective ownership of Ascend common stock at 75% on a fully diluted basis. Alternatively, if Ascend sells less than the maximum $4 million in aggregate proceeds in the Financing, then such number of additional shares of Ascend capital stock shall be issued to holders of the membership interests of Andover Games at the final closing of the Financing so as to increase their collective pro-rata percentage ownership in Ascend by one percent (1%) for every $200,000 in proceeds that Ascend falls short of the $4 million maximum proceeds in the Financing. As such, if Ascend does not sell any additional shares of common stock in the Financing, an additional 33,951,133 shares would be issued to the holders of the membership interests of Andover Games. The effect of such an issuance would be to adjust the proforma earnings per share to ($0.01). The pro forma effects of the merger recapitalization do not reflect any adjustments that could have resulted in the first 30 days post-closing due to the nature of this contingency. Instead, they reflect the shares issued prior to closing from the Financing (4,000,000 shares) plus the shares that would have been issued to Andover Games, representing 75% of the fully diluted capitalization of Ascend immediately after the closing of the merger at December 31, 2011 (38,195,025 shares) for the Pro Forma Balance Sheet and the beginning of the period presented (36,320,025 shares) for the Pro Forma Statement of Operations.

Income Taxes

The income tax benefit associated with any net operating loss carry forwards has not been recorded in these pro forma statements as it cannot be determined on a more likely than not basis at this time if they will be realized.

PF-5

SIGNATURES

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.

Ascend Acquisition Corp.

Date: March 6, 2012

/s/ Craig dos Santos
Chief Executive Officer

EX-10.1 2 v304722_ex10-1.htm EXHIBIT 10.1

DEVELOPMENT AND

LICENSING AGREEMENT

EFFECTIVE DATE: May 18, 2011

This Development and Licensing Agreement (the “Agreement”) is made by and between Andover Fund, LLC (“Andover”), a Delaware corporation, and Infinitap Games, LLC (“Infinitap”), a California limited liability company.

1. Engagement of Services. Subject to the terms of this Agreement, Infinitap will render the services set forth in Exhibit A to Andover.

2. Compensation. Andover will pay Infinitap the fees and revenue share set forth in Exhibit A for services rendered pursuant to this Agreement. Upon termination of this Agreement for any reason, Infinitap will be paid fees on the basis stated in Exhibit A for work which has been completed.

3. Ownership of Work Product. Infinitap hereby agrees to assign to Andover all right, title and interest in and to any work product created by Infinitap, or to which Infinitap contributes, pursuant to this Agreement (the “Work Product”), including all copyrights, trademarks, patents, moral rights, contract and licensing rights and other intellectual property rights contained therein. Infinitap agrees to cooperate with Andover, both during and after the term of this Agreement, in the procurement, maintenance, and enforcement of Andover’s rights to the Work Product, and to execute, at Andover’s request and expense, all documents and other instruments necessary to effectuate such assignment, including without limitation, the copyright assignment set forth as Exhibit B (“Assignment of Copyright”). In the event that Infinitap does not, for any reason, execute such documents within a reasonable time of Andover’s request, Infinitap hereby irrevocably appoints Andover as Infinitap’s attorney-in-fact for the purpose of executing such documents on Infinitap’s behalf, which appointment is coupled with an interest.

4. Waiver or Assignment of Other Rights. If Infinitap has any rights, including without limitation “artist’s rights” or “moral rights,” in the Work Product which cannot be assigned, Infinitap agrees to waive enforcement worldwide of such rights against Andover. In the event that Infinitap has any such rights, that cannot be assigned or waived, Infinitap hereby grants to Andover an exclusive, worldwide, irrevocable, perpetual license to use, reproduce, distribute, create derivative works of, publicly perform and publicly display the Work Product in any medium or format, whether now known or later developed.

5. Representations and Warranties. Infinitap represents and warrants that: (a) Infinitap has the right and unrestricted ability to assign the Work Product to Andover as set forth in Section 3 (including without limitation the right to assign any Work Product created by Infinitap’s employees or contractors), and (b) the Work Product will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law. Infinitap agrees to indemnify Andover from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Infinitap of the representations and warranties set forth in this Section 5.

6. Independent Contractor Relationship. Infinitap’s relationship with Andover is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Infinitap will not be entitled to any of the benefits which Andover may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Infinitap is not authorized to make any representation, contract or commitment on behalf of Andover unless specifically requested or authorized in writing to do so by an Andover officer. Infinitap is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. Infinitap is solely responsible for its expenses incurred in the course of performing services under this Agreement. No part of Infinitap’s compensation will be subject to withholding by Andover for the payment of any social security, federal, state or any other employee payroll taxes.

7. Confidential Information. Infinitap agrees to hold Andover’s Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. “Confidential Information” as used in this Agreement shall mean all information disclosed by Andover to Infinitap that is not generally known in Andover’s trade or industry and shall include, without limitation: (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of Andover or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (d) existence of any business discussions, negotiations or agreements between the parties; and (e) any information regarding the skills and compensation of employees, contractors or other agents of Andover or its subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Andover or Infinitap in the course of Andover’s business. Infinitap’s obligations set forth in this Section 7 shall not apply with respect to any portion of the Confidential Information that Infinitap can document by competent proof that such portion: (a) was in the public domain at the time it was communicated to Infinitap by Andover; (b) entered the public domain through no fault of Infinitap, subsequent to the time it was communicated to Infinitap by Andover; (c) was in Infinitap’s possession free of any obligation of confidence at the time it was communicated to Infinitap by Andover; (d) was rightfully communicated to Infinitap free of any obligation of confidence subsequent to the time it was communicated to Infinitap by Andover; (e) was developed by employees or agents of Infinitap independently of and without reference to any information communicated to Infinitap by Andover; or (f) was communicated by Andover to an unaffiliated third party free of any obligation of confidence. In addition, Infinitap may disclose Andover’s Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law. All Confidential Information furnished to Infinitap by Andover is the sole and exclusive property of Andover or its suppliers or customers. Upon request by Andover, Infinitap agrees to promptly deliver to Andover the original and any copies of such Confidential Information.

8. No Conflict of Interest. Infinitap warrants that there is no other contract or duty on its part inconsistent with this Agreement. Infinitap agrees to indemnify Andover from any and all loss or liability incurred by reason of the alleged breach by Infinitap of any services agreement with any third party.

9. Term and Termination.

9.1 Term. The initial term of this Agreement is for two (2) years from the Effective Date set forth above, unless earlier terminated as provided in this Agreement. Thereafter, this Agreement will automatically renew on its anniversary date, for one (1) year terms, unless Andover provides fifteen (15) days written notice prior to any such anniversary date that the Agreement shall not renew.

9.2 Termination by Andover. Andover may terminate this Agreement with or without cause, at any time upon sixty (60) days prior written notice to Infinitap. Andover also may terminate this Agreement: (i) upon fifteen (15) days written notice in the event of a material breach by Infinitap of this Agreement, provided that, such breach remains uncured at the end of such fifteen (15) day period; (ii) immediately in its sole discretion upon Infinitap’s material breach of Sections 7 (“Confidential Information”) or 10 (“Noninterference with Business”).

9.3 Survival. The rights and obligations contained in Sections 3 (“Ownership of Work Product”), 4 (“Artist’s and Moral Rights”), 5 (“Representations and Warranties”), 7 (“Confidential Information”) and 10 (“Noninterference with Business”) will survive any termination or expiration of this Agreement.

10. Noninterference with Business. During this Agreement, and for a period of two years immediately following its termination, Infinitap agrees not to interfere with the business of Andover in any manner. By way of example and not of limitation, Infinitap agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with Andover.

11. Successors and Assigns. Infinitap may not subcontract or otherwise delegate its obligations under this Agreement without Andover’s prior written consent, which consent may be withheld in Andover’s sole discretion. Subject to the foregoing, this Agreement will be for the benefit of Andover’s successors and assigns, and will be binding on Infinitap’s assignees.

12. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.

13. Governing Law. This Agreement shall be governed in all respects by the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents without regard to its conflict of law principles.

14. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

15. Waiver. The waiver by Andover of a breach of any provision of this Agreement by Infinitap shall not operate or be construed as a waiver of any other or subsequent breach by Infinitap.

16. Injunctive Relief for Breach. Infinitap’s obligations under this Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to Andover for which there will be no adequate remedy at law; and, in the event of such breach, Andover will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).

17. Entire Agreement. This Agreement, including all Exhibits, and Exhibit C, which is a license agreement between Andover and Infinitap, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all services undertaken by Infinitap for Andover. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.

[Signature page follows]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

ANDOVER FUND, LLC	INFINITAP GAMES

	By:	/s/ Matt Gilgenbach
By: /s/ Benjamin Lewis	Name:	Matt Gilgenbach
Name: Benjamin Lewis	Title:	President
Title: Cofounder	Address:	7308 De Soto Ave #19
Address: 427 N Tatnall St, #61508	Canoga Park, CA 91303
Wilmington, Delaware 19801-2230	Tel:	(310)463-7695
	Fax:

EXHIBIT A

SERVICES:

Infinitap shall provide the following services to Andover during the term of the Agreement:

Build an Android game where the user creates a Dinosaur Zoo/Park. The platform and game concept can be changed if both parties agree. (the “Work Product”).

FEES AND REVENUE SHARE:

A. Fees to be paid by Andover to Infinitap:

Payment upon execution of this Agreement: $32,500

When product is completed as agreed between the parties and shipped: $32,500

B. Revenue Share between Andover and Infinitap shall take place in the following manner:

Andover shall pay Infinitap twenty percent (20%) of the net revenue paid to Andover by Apple/Tapjoy after deducting marketing credits (the “Revenue Share”). The Revenue Share shall not become effective unless and until Andover first receives $65,000 in net revenue after deducting marketing credits paid by Apple/Tapjoy.

Updates: After the initial release of the Work Product, the Revenue Share shall remain as described above. For “Minor Updates, defined as a dot release such as 1.0 or 1.1, Andover shall pay Infinitap $5,000 for each Minor Update. For “Major Updates,” defined as a number release such as 1.1 to 2.0, Andover shall pay Infinitap $10,000 for each Major Update.

EXHIBIT B

ASSIGNMENT OF COPYRIGHT

For good and valuable consideration which has been received, the undersigned sells, assigns and transfers to Andover Fund, LLC and its successors and assigns, the copyright in and to the following work, which was created by the following indicated author(s):

Title:

Dino Park

Author(s)

Matt Gilgenbach, Jeremiah Fullbright, Brandon Dicks, Joe Grabowski

and all of the right, title and interest of the under signed, vested and contingent, therein and thereto.

Executed this 18^th day of May, 2011.

	Signature:	/s/ Matt Gilgenbach

	Printed Name:	Matt Gilgenbach

EX-10.2 3 v304722_ex10-2.htm EXHIBIT 10.2

ANDOVER FUND, LLC

LICENSE AGREEMENT

This License Agreement (this “Agreement”) is made and entered into as of May 18^th, 2011 (the “Effective Date”), between the licensor, Andover Fund, LLC, a Delaware limited liability company (“Andover”), and the licensee, Infinitap Games (“Infinitap”).

WHEREAS, simultaneously with the execution of this Agreement, Andover and Infinitap will enter into a Development and License Agreement (the “Development Agreement”), whereby Infinitap shall develop, assign and license to Andover that certain Work Product, as defined in the Development Agreement;

WHEREAS, Andover wishes to license to Infinitap the Work Product developed under the Development Agreement.

THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:

1. License

a. Grant. Subject to the terms and conditions of this Agreement, Andover hereby grants to Infinitap a fully-paid, non-exclusive, non-transferable, non-sublicensable, perpetual, worldwide right and license (the “License”) to use, copy, reproduce, and modify the Work Product.

b. Modifications and Derivative Works. The License includes the right for Infinitap to develop, or have developed, modifications and derivative works of the Work Product. Such modifications and derivative works will be subject to the terms of this Agreement, provided that Infinitap shall not be required to provide Andover with any copies of such modifications or derivative works, except to the extent they are developed specifically for Andover under the Development Agreement. Andover will not have rights to use or license such modifications or derivative works, except to the extent that any such modifications or derivative works are independently developed by Andover or its affiliates, or are developed for Andover by Infinitap under the Development Agreement.

c. Limitation on Sub-License. Infinitap may not sub-license the Work Product without the prior written consent of Andover.

2. Proprietary Rights. Subject to the terms of this Agreement, Andover reserves all right, title, and interest in and to the Work Product and all intellectual property rights associated with the Work Product, and no title to or ownership of any Work Product or associated intellectual property rights is transferred to Infinitap under this Agreement.

3. Miscellaneous

a. Relationship of the Parties. The parties hereunder are acting in performance of this Agreement as independent contractors engaged in the operation of their own respective businesses. This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture or partnership between the parties or as imposing any partnership obligation or liability on either party. Nothing in this Agreement is intended to, or will, create any third party beneficiaries.

b. Notices. Any notice or other communication under this Agreement given by any party to any other party will be in writing and will be delivered in person or sent by certified mail, postage prepaid, to the intended recipient at the address specified below its signature at the end of this Agreement. Any party may from time to time change such address by giving the other parties notice of such change in accordance with this Section.

c. Assignment. Infinitap may not assign or transfer this Agreement or any or all of its rights or obligations hereunder without the prior written consent of Andover. Andover may freely assign or transfer this license without the consent of Infinitap. Subject to the foregoing, this Agreement, and all of the rights and obligation therein, including the rights and obligations in this section, will be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.

d. Governing Law. This Agreement will be interpreted, construed, and enforced in accordance with the laws of the State of California, without reference to its choice of law principles.

e. Entire Agreement. This Agreement and the Development Agreement constitute the entire and exclusive agreement between the parties regarding the License and the Work Product, and supersede all prior understandings and agreements between the parties with respect thereto. No modification to this Agreement, or any waiver of any rights, will be effective unless consented to in writing, and the waiver of any breach or default will not constitute a waiver of any other right or of any subsequent breach or default.

f. Conflict. To the extent any provision of this Agreement conflicts with the Development Agreement, the provisions of the Development Agreement shall control.

[Signature page follows]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

ANDOVER FUND, LLC	INFINITAP GAMES

	By:	/s/ Matt Gilgenbach

By: /s/ Benjamin Lewis	Name:	Matt Gilgenbach

Name: Benjamin Lewis	Title:	President

Title: Cofounder	Address:	7308 De Soto Ave #19

Address: 427 N Tatnall St, #61508	Canoga Park, CA 91303

Wilmington, Delaware 19801-2230	Tel:	(310)463-7695

	Fax:

EX-10.3 4 v304722_ex10-3.htm EXHIBIT 10.3

For Apple
Enrollment ID TN6R5WSE9Y
Phone numbers:
1-650-248-2431	OPERATING AGREEMENT FOR MANAGER-MANAGED
1-734-657-4910
	Rotvig Labs, LLC

INTRODUCTION

The undersigned are all of the Members of Rotvig Labs, LLC , a Limited Liability Company formed under the laws of the State of Delaware . The undersigned hereby adopt the following Operating Agreement pursuant to the LLC laws of the State of Delaware and do hereby certify and agree as follows:

ARTICLE I – NAME

1.1 Name of Business: The name of the Company is Rotvig Labs, LLC . The business of the Company may be conducted under such trade or fictitious names as the Managers may determine.

ARTICLE II. – OFFICES AND REGISTERED AGENT

2.1 Principal Office: The principal office of the Company is located at 427 N. Tatnall St #61508 Wilmington, DE 19801-2230 . The Company may have other offices, inside or outside the State of Delaware the Managers may designate.

2.2 Registered Office: The registered office of the Company in the State of Delaware is located at 427 N. Tatnall St #61508 Wilmington, DE 19801-2230 , . The registered agent of the Company for service of process at that address is 108 West 13th St Wilmington, Delaware 19801 .

ARTICLE III. – BUSINESS PURPOSE

3.1 Business Purpose: The purpose of the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the LLC laws of the State of Delaware .

ARTICLE IV. – MEMBERS

4.1 Members: The names of each initial Member, their capital contributions, and percentage interests are as follows:

Name	Capital Contribution	Percentage Interest
Zachary Kuznia	$100	50%

Andover Fund, LLC	$25,000	50%

4.2 Additional Members: Additional Members may be admitted upon the consent of all Members.

4.3 Withdrawing: A Member may withdraw from the Company upon six months written notice to each remaining Member.

ARTICLE V. – MEMBERS’ CAPITAL ACCOUNTS

5.1 Capital Accounts: The Company will maintain a separate capital account for each Member. Each Member’s capital account will reflect the Member’s capital contributions and increases for the Member’s share of any net income or gain of the Company. Each Member’s capital account will also reflect decreases for distributions made to the Member and the Member’s share of any losses and deductions of the Company.

Each Member’s capital account will be increased by: 1) the amount of money or the fair market value of property contributed by the Member to the Company (net of any liabilities secured by such contributed property that the Company is considered to assume or take subject to), 2) the amount of any Company liabilities assumed by the Member, and 3) allocations to the Member of profit, income, or gain.

Each Member’s capital account will be decreased by: 1) the amount of money and the fair market value of property distributed to the Member by the Company (net of any liabilities secured by such contributed property that the Company is considered to assume or take subject to), and 2) allocations to the Member of losses, deductions, and expenses.

In the event of a permitted sale or exchange of an interest in the Company, the capital account of the transferor will become the capital account of the transferee.

The manner in which capital accounts are to be maintained pursuant to this Operating Agreement is intended to comply with the requirements of the Internal Revenue Code Sec. 704(b) and the regulations thereunder. It is the specific intent of the Members that all adjustments as may be required pursuant to Sec. 704(b), and any restrictions thereunder, be made, so as to cause the allocations prescribed hereunder to be respected for tax purposes.

5.2 Fiscal Year: The fiscal year of the Company will be a calendar year. The books and records of the Company will be maintained in accordance with generally accepted accounting principles and Sec. 704(b) of the Internal Revenue Code and the regulations thereunder.

ARTICLE VI. – ALLOCATIONS AND DISTRIBUTIONS

6.1 Allocations and Distributions: All items of Company income, gain, loss, deduction, credit, or the like will be allocated among the Members in accordance with their respective percentage interests.

6.2 Distributions of Cash or Assets: Distributions of cash or other assets may be made to the Members from time to time. All distributions will be made to the Members in accordance with their respective percentage interests.

ARTICLE VII. – ASSIGNMENT OF MEMBERSHIP INTERESTS

7.1 Assignment of Membership Interests: A Member may assign his or her membership interest in the Company in whole or in part. The assignment of a membership interest does not in and of itself entitle the assignee to become a Member. The assignee is only entitled to receive, to the extent assigned, the distributions the assigning Member would otherwise be entitled to, and the assignee will only become an assignee of a membership interest and not a substitute Member.

7.2 Substitute Members: An assignee of a membership interest will be admitted as a substitute Member and will be entitled to all the rights and powers of the assignee only if the other Members unanimously consent. If admitted, the substitute Member has, to the extent assigned, all of the rights and powers, and is subject to all of the restrictions and liabilities of a Member.

ARTICLE VIII. – VOTING; MEMBERS MEETINGS

8.1 Voting: Except to the extent provided to the contrary in this Operating Agreement, all Members will be entitled to vote on any matter submitted to a vote of the Members.

Unless a greater vote is required by the LLC laws of the State of Delaware the Articles of Organization, or this Operating Agreement, the affirmative vote or consent on a matter will be required.

The consent of all Members will be required to approve the following: 1) the dissolution of the Company, 2) the merger of the Company, 3) the conversion of the Company, 4) the authorization or ratification of acts that would otherwise violate the duty of loyalty, 5) an amendment to the Articles of Organization, 6) the sale, exchange, lease, or transfer of all or substantially all of the assets of the Company other than in the ordinary course of business, 7) the compromise of an obligation to make a contribution, 8) the making of interim distributions, 9) the admission of a new Member, 10) the use of the Company’s property to redeem an interest subject to a charging order, 11) an amendment to the Operating Agreement.

8.2 Annual Meetings of Members: An annual meeting of Members for the transaction of such business as may properly come before the meeting, will be on Feb , 1 , 2011 , at such place and time as the Managers will determine.

8.3 Special Meetings of Members: Special meetings of Members for any proper purpose may be called at any time by the Managers or by 2 of Members, or the holders of at least 95 % of the interest of all Members.

8.4 Notice of Meetings: The Company will deliver notice stating the date, time, place, and purposes of any meeting to each Member entitled to vote at the meeting. Notice will be given not less than 7 nor more than 30 days before the date of that meeting.

8.5 Meeting Participation: A Member may participate and vote at any meeting via telephone conference call or similar equipment.

8.6 Unanimous Written Consent: Any action required or permitted to be taken at an annual or special meeting of the Members may be taken without a meeting if consent in writing, setting forth the action so taken, is signed by all the Members entitled to vote at the meeting.

8.7 Voting by Proxy: A Member may appoint a proxy to vote or otherwise act for the Member by signing an appointment instrument either personally or by the Member’s attorney-in-fact.

ARTICLE IX – MANAGEMENT OF THE COMPANY

9.1 Management: The Company will be managed by 1 Managers. The number of Managers may be increased or decreased by amendment to this Operating Agreement, but no decrease will have the effect of shortening the term of any Manager.

The initial Managers will be: Zachary Kuznia , , ____________________, and . The initial Managers will hold office until the first annual meeting of Members and until their successors have been elected and qualified.

Each Manager will receive $0 as compensation for serving as Manager.

Subject to the delegation of rights and powers provided for herein, the Managers will have the sole right to manage the business of the Company and will have all powers and rights necessary, appropriate, or advisable to effectuate and carry out the purposes and business of the Company. No Member, by reason of his or her status as such, will have any authority to act for or bind the Company.

The Managers may appoint a President, Vice President, Treasurer, or Secretary, or such other Officers as they may deem necessary or appropriate.

The Managers may appoint, employ, or otherwise contract with other persons or entities for the transaction of business of the Company or the performance of services for or on behalf of the Company as they may deem necessary or appropriate. The Managers may delegate to any Officer of the Company or to any other person or entity such authority to act on behalf of the Company as they may deem appropriate.

Any Manager, Officer, or other person specifically authorized by the Managers, may execute any contract or other agreement or document on behalf of the Company, and may execute and file on behalf of the Company with the Secretary of State any document required or permitted to be filed under the LLC laws of the State of Delaware ..

9.2 Vacancies: Manager vacancies will be filled by a vote of a majority of the remaining Managers, or if there are none, by a vote of a majority of interest of the Members.

9.3 Terms: Managers will serve until they resign, die, become incapacitate, or are removed. Managers may be removed with or without cause by a vote of a majority of interest of the Members.

9.4 Resignation: A Manager may resign at any time by giving notice to the remaining Managers.

ARTICLE X. – VOTING; MANAGERS MEETINGS

10.1 Voting: Unless a greater vote is required by the LLC laws of the State of Delaware the Articles of Organization, or this Operating Agreement, the affirmative vote or consent of a majority of the Managers present at a meeting at which a quorum is present will be the act of the Managers.

10.2 Annual Meeting of Managers: Regular meetings of Managers may be held at such time and at such place as the Managers designate. Special meetings of Managers may be called at the request of any Manager.

10.3 Quorum: A majority of the number of Managers will constitute a quorum for the transaction of business at a meeting of Managers.

10.4 Unanimous Written Consent: Any action required or permitted to be taken at a meeting of the Managers may be taken without a meeting, if consents in writing, setting forth the action taken, are signed by all Managers entitled to vote at the meeting.

10.5 Meeting Participation: A Manager may participate and vote at any meeting via telephone conference call or similar equipment.

ARTICLE XI. – STANDARD OF CONDUCT; INDEMNIFICATION

11.1 Conduct: A Manager owes the Company and its Members a duty of loyalty and a duty of care. The duty of loyalty is limited to 1) accounting to the Company and holding as trustee for it, and property, profit, or benefit derived by the Manager in the conduct or winding up of the Company’s business, 2) refraining from dealing with the Company as or on behalf of a party having an interest adverse to the Company, and 3) refraining from competing with the Company. The duty of care is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. A Manager will discharge his or her duties consistently with the obligation of good faith and fair dealing.

11.2 Indemnification: Except as otherwise provided in this Article, the Company will indemnify any Manager and may indemnify any employee or agent of the Company who was or is a party, or is threatened to be made a party, to any action, suit, or proceeding, other than an action by or in the right of the Company, by reason of the fact that such person is or was a Manager, employee, or agent of the Company against expenses, including attorney’s fees, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with the action, suit, or proceeding, if the person met the standard of conduct set for above in this Article.

To the extent that a Manager, employee, or agent of the Company has been successful on the merits or otherwise in defense of an action, suit, or proceeding, such person will be indemnified against actual and reasonable expenses, including attorney’s fees incurred by such person in connection with the action, suit, or proceeding, and any action, suit, or proceeding brought to enforce the mandatory indemnification provided herein. Any indemnification permitted under this Article, unless ordered by a court, will be made by the Company only as authorized in the specific case upon a determination that the indemnification is proper under the circumstances because the person to be indemnified has met the applicable standard of conduct. That determination will be made by a majority vote of the Managers who are not parties or threatened to be made parties to the action, suit, or proceeding.

No indemnification will be provided to any Manager, employee, or agent of the Company for or in connection with the receipt of a financial benefit to which such person is not entitled, voting for or assenting to a distribution to Members in violation of this Operating Agreement or the Act, or a knowing violation of law.

ARTICLE XII. – DURATION, DISSOLUTION

12.1 Duration: The Company will continue in existence until dissolved pursuant to this Article or the LLC laws of the State of Delaware .

12.2. Dissolution: The Company will be dissolved and have its affairs wound up and terminated upon the determination of all of the Members to dissolve the Company, or upon the occurrence of any other event causing a dissolution of the Company under the LLC laws of the State of Delaware .

12.3 Winding Up: Upon dissolution, the Company will cease carrying on its business and affairs and will commence the winding up of the Company’s business and affairs, and complete the winding up as soon as possible. Upon the winding up of the Company, the assets of the Company will be distributed first to creditors to the extent permitted by law in satisfaction of the Company’s debts, liabilities, and obligations, and second to Members and former Members in satisfaction of liabilities for distributions and in accordance with their percentage interests.

ARTICLE XIII. – MISCELLANEOUS PROVISIONS

13.1 Entire Agreement: This Operating Agreement embodies the entire agreement and understanding among the Members with respect to the subject matter within. This Operating Agreement supersedes any and all other agreements, either oral or written, among the Members with respect to the subject matter within.

13.2 Severance: Every provision of this Operating Agreement is intended to be severable. The invalidity or illegality of any particular provision of this Operating Agreement will not effect the other provisions, and this Operating Agreement will be construed as if such invalid or illegal provisions were omitted.

13.3 Amendments and Revocations: This Operating Agreement may be amended or revoked at any time by the written consent of all of the Members.

13.4 State Law: This Operating Agreement will be governed by, construed, and enforced in accordance with the laws of the State of Delaware .

THE UNDERSIGNED, being all of the Members of Rotvig Labs, LLC evidence their adoption and ratification of the foregoing Operating Agreement of the LLC.

Dated:	1/28/2011

/s/ Zachary Kuznia
Member	Zachary Kuznia

/s/ Benjamin Lewis
Member	Andover Fund, LLC

	Ben Lewis signing on behalf
Member	of Andover Fund, LLC


Member

EX-10.4 5 v304722_ex10-4.htm EXHIBIT 10.4

MEMBERSHIP INTEREST AGREEMENT

ROTVIG LABS, LLC

a Delaware limited liability company

This Membership Interest Agreement (the “Agreement”) is made as of May 7, 2011, by and between all the Members of Rotvig Labs, LLC, a Delaware limited liability company, as listed on Exhibit A (the “Members”) and Concept Art House, Inc., a Delaware corporation ("CAH”).

AGREEMENT

WHEREAS, the Members are the owners and holders of all of the outstanding Membership Interest of Rotvig Labs, LLC (the “Company”); and

WHEREAS, as set forth in that certain Rotvig Labs, LLC Service and Profit Sharing Agreement, dated as of May, 4th 2011 by and between the Members and the CAH, (the “Service and Profit Sharing Agreement”), the Members desire to grant to CAH, and CAH desires to receive from the Members, the membership interest of the Company upon the terms and conditions and for the consideration set forth below;

NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement, the undersigned agree as follows:

1. Grant of Membership Interest. Subject to the terms and conditions of this Agreement, on the Grant Date (as defined below) the Members will issue to CAH, and CAH agrees to receive from the Members, a eight percent (8%) Membership Interest in the Company as per the terms and conditions set forth in the Service and Profit Sharing Agreement. The term “Membership Interest” refers to the granted Membership Interest and all securities received in replacement of or in connection with the Membership Interest pursuant to dividends or splits, all securities received in replacement of the Membership Interest in a recapitalization, merger, reorganization, exchange or the like, and all new, substituted or additional securities or other properties to which CAH is entitled by reason of CAH’s ownership of the Membership Interest.

2. Grant. The grant of the Membership Interest under this Agreement shall occur at the principal office of the Company simultaneously with the execution of this Agreement by the parties to this Agreement or on such other date as the Company and CAH shall agree (the “Grant Date”).

3. Limitations on Transfer. CAH shall not assign, encumber or dispose of any interest in the Membership Interest except in compliance with the provisions set forth below and in Rotvig Labs’ Operating Agreement for Manager-Managed, dated as of January 28, 2011 (the “Operating Agreement”), attached hereto as Exhibit B.

(a) Option

(i) In the event of the termination of CAH’s services under the Service and Profit Sharing Agreement, the Members shall, upon the date of such termination (the “Termination Date”), have an irrevocable, exclusive option (the “Option”) for a period of one hundred eighty (180) days from such date to rescind any portion of the Membership Interest held by CAH as of the Termination Date which have not yet been released from the Option.

(ii) The Option shall be exercised by the Members by written notice at any time within one hundred eighty (180) days following the Termination Date to CAH or CAH’s. Upon delivery of such notice, the Members shall become the legal and beneficial owner of the Membership Interest being rescinded and all rights and interest therein or related thereto, and the Members shall have the right to transfer to their own names the number of Membership Interest being rescinded by the Members, without further action by CAH.

(iii) One hundred percent (100%) of the Membership Interest shall be subject to the Option. Vesting of the Membership Interest granted under this Agreement shall be as follows: twenty five percent (25%) of the Membership Interest shall be released from the Option for every $10,000 in Committed Art Services provided by CAH to the Company (as defined in Section 1.1 of the Service and Profit Share Agreement) until all of the CAH’s Membership Interest is released from the Company’s Option.

(b) Right of First Refusal. Before any Membership Interest held by CAH or any transferee of CAH (either being sometimes referred to herein as the “Holder”) may be sold or otherwise transferred (including transfer by gift or operation of law), the Company or its assignee(s) shall have a right of first refusal to purchase the Membership Interest (the “Right of First Refusal”).

(i) Notice of Proposed Transfer. The Holder of the Membership Interest shall deliver to the Company a written notice (the “Notice”) stating: (A) the Holder’s bona fide intention to sell or otherwise transfer such Membership Interest; (B) the name of each proposed CAH or other transferee (“Proposed Transferee”); (C) the amount of Membership Interest to be transferred to each Proposed Transferee; and (D) the terms and conditions of each proposed sale or transfer. The Holder shall offer the Membership Interest at the same price (the “Offered Price”) and upon the same terms (or terms as similar as reasonably possible) to the Company or its assignee(s).

(ii) Exercise of Right of First Refusal. At any time within thirty (30) days after receipt of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all, but not less than all, of the Membership Interest proposed to be transferred to any one or more of the Proposed Transferees, at the Offered Price.

(iii) Payment. Payment shall be made, at the option of the Company or its assignee(s), in cash (by check), by cancellation of all or a portion of any outstanding indebtedness, or by any combination thereof within thirty (30) days after receipt of the Notice or in the manner and at the times set forth in the Notice.

(iv) Holder’s Right to Transfer. If the entire amount of the Membership Interest proposed in the Notice to be transferred to a given Proposed Transferee is not purchased by the Company and/or its assignee(s) as provided in this Section 3(b), then the Holder may sell or otherwise transfer such Membership Interest to that Proposed Transferee at the Offered Price or at a higher price, provided that such sale or other transfer is consummated within sixty (60) days after the date of the Notice and the Proposed Transferee agrees in writing that the provisions of this Section 3 shall continue to apply to the Membership Interest in the hands of such Proposed Transferee. If the Membership Interest described in the Notice is not transferred to the Proposed Transferee within such period, or if the Holder proposes to change the price or other terms to make them more favorable to the Proposed Transferee, a new Notice shall be given to the Company, and the Company and/or its assignees shall again be offered the Right of First Refusal before any Membership Interest held by the Holder may be sold or otherwise transferred.

4. Miscellaneous.

(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.

(b) Entire Agreement; Enforcement of Rights. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.

(c) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then: (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.

(d) Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

(e) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by telegram or fax or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice.

Notice to the Company and Members:

Rotvig Labs, LLC

427 N Tatnall St, #61508

Wilmington, Delaware 19801-2230

With a copy to:

Vasquez Benisek & Lindgren LLP

Attn: Eric. W. Benisek, Esq.

3685 Mt. Diablo Blvd., Ste. 300

Lafayette, CA 94549

Notice to CAH:

James Zhang

Concept Art House

785 Market St. Suite 1100

San Francisco, CA 94103

(f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

(g) Successors and Assigns. The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by the successors and assigns of the parties to this Agreement. The rights and obligations of CAH under this Agreement may only be assigned with the prior written consent of the Company and its Managers.

[Signature Page Follows]

This Agreement has been executed as of the date first written above and may be executed in one or more counterparts, each, when taken together, shall constitute one and the same instrument.

	CONCEPT ART HOUSE, INC.

	/s/ James Zhang
	Signature

	James Zhang
	Name

	CEO
	Title

	ROTVIG LABS, LLC
	a Delaware limited liability Company

	/s/ Benjamin Lewis
	Manager Signature

	Benjamin Lewis
	Manager Name

EXHIBIT A

MEMBERS OF ROTVIG LABS, LLC

a Delaware Limited Liability Company

Member Name		Ownership Percentage

Zachary Kuznia		50%

Andover Fund, LLC		50%

EX-10.5 6 v304722_ex10-5.htm EXHIBIT 10.5

ROTVIG LABS, LLC

SERVICE AND PROFIT SHARING AGREEMENT

This Service and Profit Sharing Agreement (the "Agreement") is made by and between Rotvig Labs, LLC, a Delaware limited liability company, with its principal place of business located at 427 N Tatnall St, #61508, Wilmington, Delaware 19801-2230 ("Rotvig Labs") and Concept Art House, Inc., a Delaware corporation, with its principal place of business located at 785 Market Street, Suite 1100, San Francisco, CA 94103 ("CAH") (each a "Party." collectively, the "Parties") and is entered into as of April 19_, 2011 (the "Effective Date").

RECITALS

WHEREAS, Rotvig Labs is a start-up mobile gaming company;

WHEREAS, CAH is a graphics and design company that provides in-game graphics and artwork for mobile gaming companies such as Rotvig Labs; and

WHEREAS, CAH will provide Rotvig Labs with a defined amount of free and discounted services, and in exchange will receive an Ownership Interest and Profit Sharing interest in Rotvig Labs on the terms defined herein.

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

1. CAH Art Services and Profit Sharing

1.1 Committed Art Services. CAH will provide Rotvig Labs with $40,000.00 in art services for Rotvig Labs' mobile gaming applications. The $40,000.00 shall be calculated based on CAH's standard billing rate as of the Effective Date, and adjusted annually on this same calendar day. All art work delivered for Rotvig Labs applications shall be reasonably comparable to the top games in the mobile space run on similar devices.

1.2 Discounted Art Services. In the event Rotvig Labs utilizes CAH's art services beyond the $40,000.00 Committed Art Services allocated in Section 1.1 above, CAH shall bill Rotvig Labs at CAH's lowest standard billing rate calculated as of the Effective Date, and adjusted annually on this same calendar day.

1.3 Ownership Interest. In exchange for the services provided in Sections 1.1 and 1.2, CAH shall receive an eight percent (8%) membership interest in Rotvig Labs as of the Effective Date (the "Ownership Interest"). CAH's Ownership Interest shall be subject to CAH's execution of Rotvig Labs' standard member unit agreement. CAH's Ownership Interest shall be subject to and will comply with the terms ofRotvig Labs' Operating Agreement for Manager-Managed, dated as of January 28, 2011, attached hereto as Exhibit A (the "Operating Agreement").

1.4 Profit Sharing. On the tenth day of each month, Rotvig Labs shall pay to CAH an amount equal to sixteen percent (16%) of Rotvig Labs Profits for the previous calendar month (the "Profit Sharing"). "Profits" shall be defined as Rotvig Labs' gross revenue from all sources for each month, without deduction of any kind. All Profit Sharing shall be reduced to 8% once CAH receives $80,000 in Profit Sharing payments.

1.5 Audit Rights. Rotvig Labs will maintain books and records with respect to the calculation of Profit Sharing payments under this Agreement. During the term of this Agreement, and for a period of three (3) years thereafter, CAH may, upon at least ten (10) days prior written notice, inspect Rotvig Labs' books and records reasonably related to the calculation of Profit Sharing payments. Any costs incurred by CAH in connection with such inspection will be paid by CAH, unless the inspection reveals any underpayment of greater than five percent (5%) for the period examined, in which case Rotvig Labs shall reimburse CAH for the costs it incurred in connection with such inspection and any follow-on inspection.

1.6 Ownership. All inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether drafts, concepts or derivatives (herein "Works"), created by CAH and its employees, agents and affiliates, pursuant to this Agreement shall be considered "works for hire" as that term is defined in the United States Copyright Act and are hereby assigned by CAH to Rotvig Labs and shall be owned solely and exclusively by Rotvig Labs. CAH agrees to cooperate with Rotvig Labs in providing the necessary consents or assignments to confirm the transfer of ownership of all Works to Rotvig Labs.

1.7 Patent and Copyright Registrations. CAH hereby agrees to assist Rotvig Labs, or its designees or assigns, in every proper way to secure Rotvig Labs' rights in the Works under this Agreement and any copyrights, patents, mask work rights or other intellectual property rights relating thereto, in any and all countries, including the disclosure to Rotvig Labs of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths or affirmations, assignments and all other instruments which Rotvig Labs shall reasonably in order to apply for, register, obtain, maintain, defend, and enforce such rights and in order to assign and convey to Rotvig Labs, its successors, assigns and nominees the sole and exclusive rights, title and interest in and to such Works and any rights relating thereto. Any actions required by Rotvig Labs to be taken by CAH pursuant to this Section 1.7 shall be at Rotvig Labs' sole expense.

2. Confidential Information

2.1 Each Party acknowledges that Confidential Information may be disclosed to a Party during the course of this Agreement. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication or disclosure of Confidential Information of any other Party, other than by or to its employees or agents, who will each agree to comply with this section. The Parties acknowledge and agree that each may disclose Confidential Information: (i) as required by law, (ii) to their respective directors, officers, employees, attorneys, accountants and other advisors and independent contractors, who are under an obligation of confidentiality no less stringent than set forth herein, on a "need-to-know" basis; and (iii) to their respective affiliates (who shall be subject to the confidentiality provisions of this agreement). Confidential Information may be disclosed to a legal, judicial or government entity, or as required by the rules or orders of a court or governmental entity, provided that, before such disclosure, the recipient shall give reasonable advance notice of such so that the disclosing Party can seek a protective order for the Confidential Information. Except as required by law or generally accepted accounting principles, and except to assert its rights hereunder or for disclosure on a "need-to-know" basis to its own officers, directors, employees and professional advisors or to prospective investors or acquirers in connection with an investment in or acquisition of a Party, each Party hereto agrees that neither it, nor its directors, officers, employees, consultants or agents shall disclose specific terms of this agreement without the prior consent of the other Party.

2.2 Confidential Information Defined. The term "Confidential Information" of a Party means information concerning its business, programs and operations, the business of its suppliers, inventions, confidential know-how, and trade secrets that is disclosed in writing or in any other tangible or intangible form to the recipient by the disclosing Party or a third party having an obligation of confidence to the disclosing Party and is designated as confidential by or on behalf of the disclosing Party. Confidential Information does not include information that: (i) was, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (ii) the receiving Party can demonstrate was known to the receiving Party as of the time of its disclosure, (iii) the receiving Party can demonstrate was independently developed by the receiving Party without use of reference to any information, code, documentation or materials provided by the disclosing Party, or (iv) the receiving Party can demonstrate was subsequently learned form a third party not under a confidentiality obligation to the disclosing Party.

2.3 Identification of Intellectual Property. Each Party shall identify the others' trademarks, copyrights, and other proprietary rights by including appropriate symbols or notices as reasonably requested by the other Party. No Party shall print or distribute any materials, including press releases, bearing another Party's name or mark(s), without first obtaining such other Party's approval. The terms of this Agreement are confidential. No Party shall have the right to use the service marks, trademarks, or trade names of any other Party to this Agreement without the prior written approval of such other Party.

3. Term of Agreement and CAH Vesting

3.1 Term. Subject to earlier termination pursuant to Section 3.2, this Agreement shall expire three (3) years from the Effective Date.

3.2 Termination. Six (6) month after the Effective Date of this Agreement, either Party may terminate this Agreement for any reason, with or without cause, upon sixty (60) days written notice. Sections 1.4, 1.5, 1.6, 2, 3, 4, 5, and 6 shall survive ant termination of this Agreement.

3.3 CAH Vesting. Pursuant to the standard [member unit agreement] contemplated by Section 1.3 herein, CAH's Ownership Interest shall be subject to Rotvig Labs' Option. Rotvig Labs' Option shall lapse at a rate of 25% of said equity interest per $10,000.00 of Committed Art Services provided under Section 1.1 until CAH reaches $40,000.00 in Committed Art Services. In the event this Agreement is terminated by either party, Rotvig Labs' Option shall cease to lapse and Andover shall have 180-days from termination to rescind the remaining CAH's Ownership Interest that is still subject to Andover's Option.

4. Indemnification. Each Party shall indemnify, defend and hold harmless the other Party and its affiliates, members, directors, officers, shareholders, employees, representatives, agents, attorneys, successors and assigns harmless from and against any and all claims, liabilities, obligations, judgments, causes of actions, costs and expenses (including reasonable attorneys' fees) arising out of: (a) personal injury, including death, and tangible property damage caused by the negligent or intentional acts of the Party or its employees, agents and/or subcontractors; or (b) any breach by the Party or the Party's employees, agents or representatives of the confidentiality obligations set forth in Section 2 herein; (c) the Party's failure to perform in accordance with the terms of this Agreement; and (d) any neglect, errors or misconduct of any kind whatsoever by the other Party. Each Party shall further indemnify, defend and hold the other Party and its affiliates, members, directors, officers, shareholders, employees, representatives, agents, attorneys, successors and assigns harmless from and against any claim asserted or any claim, suit or proceeding brought against the Party alleging misappropriation or infringement upon any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of any third party that arises from the Party's services. If either Party accepts indemnity under this Section, the indemnifying Party shall have sole discretion over choice of counsel and settlement. The indemnifying Party shall not be responsible for any attorneys' fees and/or costs related to its obligation to indemnify until such time it is provided notice of any claims and has received tender for indemnity and defense.

5. Notices. Any notice delivered to either Party pursuant to this Agreement must be in writing and delivered personally or will be deemed to be delivered when deposited in the mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the Party at the address indicated below, or at such other address that may have been specified by written notice delivered in accordance with this provision:

If to Rotvig Labs:

Lee Linden

Ben Lewis

427 N Tatnall St, #61508

Wilmington, Delaware 19801-2230

With a Copy to:

Eric Benisek

Vasquez Benisek & Lindgren, LLP

3685 Mt. Diablo Blvd., Ste. 300

Lafayette, CA 94549

ebenisek@vbllaw.com

If to CAH:

James Zhang

Concept Art House

785 Market St. Suite 1100

San Francisco, CA 94103

6. Miscellaneous.

6.1 Independent Contractors. CAH is an independent contractor, and is not an agent, representative, or partner of Rotvig Labs. Rotvig Labs is not an agent, representative or partner of CAH. Neither Party has any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon any Party. Nothing in this Agreement will be construed as restricting any Party's ability to engage in any business or activity, which is the same, or similar to that contemplated by this Agreement.

6.2 Entire Agreement. This Agreement sets forth the entire agreement between CAH and Rotvig Labs, and supersedes any and all prior agreement (whether written or oral) of CAH and Rotvig Labs with respect to the subject matter set forth herein. This Agreement may only be modified, or any rights under it waived, by a written document executed by authorized representatives of both Parties.

6.3 Governing Law. This Agreement shall be interpreted, construed and enforced in all respects in accordance with laws of the State of California, without regard to its conflict of law rules and without regard to the actual state or country of incorporation or residence of either Party. The Parties hereby irrevocably consent to the exclusive jurisdiction of the courts of the State of California and the federal courts situated in the State of California in connection with any action arising under this Agreement.

6.4 Force Majeure. Neither Party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by: (i) fires, embargoes, floods, wars, labor stoppages, government requirements, or acts of God; or (ii) other circumstances substantially beyond its reasonable control.

6.5 Assignment. Neither Party may assign this Agreement, in whole or in part without the prior written consent of the other Party hereto. This Agreement is duly enforceable against the other Party in accordance with its terms and conditions.

6.6 Severability. If any one or more of the provisions contained in this Agreement should be held invalid, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

[Signatures on following page]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. This Agreement may be executed in two or more counterparts, each, when taken together shall be considered one and the same document.

ROTVIG LABS, LLC:

By:	/s/ Benjamin Lewis
Name: Benjamin Lewis
Title: Manager

CONCEPT ART HOUSE, INC.:

By:	/s/ James Zhang
Name: James Zhang
Title: CEO

EX-10.6 7 v304722_ex10-6.htm EXHIBIT 10.6

NOTE PURCHASE AGREEMENT

This Note Purchase Agreement (this “Agreement”), is entered into as of August 31, 2011, by and among Ecko Entertainment, Inc., a Delaware corporation (the “Company”), and each of the undersigned purchasers (individually a “Purchaser,” and collectively, the “Purchasers”), listed on the Schedule of Purchasers attached hereto as Exhibit A (the “Schedule of Purchasers”).

RECITAL

On the terms and subject to the conditions set forth herein, each of the Purchasers are willing to purchase from the Company, and the Company is willing to sell to each of the Purchasers, Unsecured Convertible Promissory Notes (each, a “Note” and collectively, the “Notes”), to be issued by the Company in the principal amounts set forth opposite each Purchaser’s name on the Schedule of Purchasers (each, a “Loan Amount” and collectively, the “Loan Amounts”).

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, and the representations, warranties, and covenants set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Notes.

(a) Issuance of Notes. In reliance upon the representations, warranties and covenants of the parties set forth herein, the Company agrees to issue, sell and deliver to the Purchasers, and the Purchasers, severally and not jointly, agree to purchase from the Company, the Notes in an aggregate amount not to exceed $1,000,000. The purchase price for the Notes shall be payable in immediately available funds.

(b) Terms of the Notes. The terms and conditions of the Notes are set forth in the form of Note attached hereto as Exhibit B. Capitalized terms not otherwise defined herein shall have the meanings set forth in Exhibit B.

2. Closings; Delivery.

(a) Closings. The initial closing of the purchase and sale of the Notes under this Agreement (the “Initial Closing”), shall take place remotely via the exchange of documentsand signatures on the date hereof (the “Initial Closing Date”). The Company shall have the right to sell additional Notes pursuant to this Agreement at one or more subsequent closings to occur on or before the ninetieth (90th) day following the Initial Closing Date (the “Subsequent Closings”), and to add additional entities and persons as Purchasers hereunder and as parties hereto. Each Subsequent Closing shall take place remotely via the exchange of documents and signatures on a date or dates determined by the Company and the Purchasers purchasing additional Notes at such Subsequent Closing (each such date, a “Subsequent Closing Date”). The Initial Closing and each Subsequent Closing shall constitute and be treated as a “Closing” hereunder, and the Initial Closing Date and each Subsequent Closing Date shall constitute and be treated as a “Closing Date” hereunder.

(b) Delivery. Subject to the terms of this Agreement, at the Closing, the Company will deliver to each Purchaser participating in such closing a Note in such Purchaser’s name representing the Note purchased by such Purchaser, and such Purchaser will deliver to the Company, by check or wire transfer, payment for the Note being purchased in an amount equal to the amount set forth opposite such Purchaser’s name on the Schedule of Purchasers.

3. Representations and Warranties of the Company. The Company hereby represents and warrants to each Purchaser:

(a) Organization and Standing. The Company is a 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 currently conducted.

(b) Corporate Power. The Company has all requisite legal and corporate power to enter into, execute and deliver this Agreement and the Notes. This Agreement and the Notes are valid and binding obligations of the Company, enforceable in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, usury or other laws of general application relating to or affecting enforcement of creditors’ rights and the rules or laws governing specific performance, injunctive relief or other equitable remedies.

(i) Corporate Action. All corporate and legal action on the part of the Company, its officers, directors and stockholders necessary for the execution and delivery of this Agreement, the sale and issuance of the Notes, and the performance of the Company’s obligations hereunder and under the Notes have been taken.

(ii) Valid Issuance. The Notes, and any shares of capital stock issued upon conversion or exercise of the Notes, and any shares of the Company’s common stock (the “Common Stock”) issued upon conversion of such capital stock, if applicable (collectively, the “Securities”), when issued in compliance with the provisions of this Agreement, the Notes or the terms of the capital stock, as the case may be, will be validly issued and will be free of any liens or encumbrances created by the Company, provided, however, that the Securities may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein, and as may be required by future changes in such laws.

(d) Government Consent. No consent, approval, order or authorization of, or designation, registration, declaration or filing with, any federal, state, local or other governmental authority on the part of the Company is required in connection with the valid execution and delivery of this Agreement and the Notes, other than, if required, filings or qualifications under the Securities Act of 1933, as amended (the “Securities Act”), and other applicable state securities laws, which filings or qualifications, if required, will be timely filed or obtained by the Company.

(e) Offering. Assuming the accuracy of the representations and warranties of the Purchasers contained in Section 4 hereof, the offer, issue, and sale of the Securities are exempt from the registration and prospectus delivery requirements of the Securities Act, and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.

4. Representations and Warranties by the Purchaser. Each Purchaser hereby represents and warrants to the Company:

(a) Investment Intent. The Purchaser is acquiring the Securities for the Purchaser’s own account, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act, and the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the Securities. The Purchaser understands that the Securities have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof, which exemption depends upon, among other things, the bona fide nature of the Purchaser’s investment intent expressed herein.

(b) Access to Information. During the negotiation of the transactions contemplated herein, the Purchaser and its representatives have been afforded full and free access to corporate books, financial statements, records, contracts, documents, and other information concerning the Company, and to its offices and facilities, have been afforded an opportunity to ask such questions of the Company’s officers, employees, agents, accountants and representatives concerning the Company’s business, operations, financial condition, assets, liabilities and other relevant matters as they have deemed necessary or desirable, and have been given all such information as has been requested, in order to evaluate the merits and risks of the prospective investment contemplated herein.

(c) Due Diligence. The Purchaser and its representatives have been solely responsible for the Purchaser’s own “due diligence” investigation of the Company and its management and business, for the Purchaser’s own analysis of the merits and risks of this investment, and for the Purchaser’s own analysis of the fairness and desirability of the terms of the investment. Notwithstanding the foregoing, such due diligence investigation shall not limit the representations and warranties made by the Company in Section 3 hereof.

(d) Accredited Investor. The Purchaser (i) is an “Accredited Investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of such Purchaser’s prospective investment in the Securities; and (ii) has the ability to bear the economic risks of such Purchaser’s prospective investment, including a complete loss of Purchaser’s investment in the Securities.

(e) Authority. The Purchaser has the full right, power and authority to enter into and perform the Purchaser’s obligations under this Agreement, and this Agreement constitutes a valid and binding obligation of the Purchaser enforceable in accordance with its terms except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, usury or other laws of general application relating to or affecting enforcement of creditors’ rights and the rules or laws governing specific performance, injunctive relief or other equitable remedies.

(f) Government Consent. No consent, approval, order or authorization of, or designation, registration, declaration or filing with, any federal, state, local or other governmental authority on the part of the Purchaser is required in connection with the valid execution and delivery of this Agreement.

(g) Restricted Securities. The Purchaser understands that the Company has no present intention of registering the Securities, and that if the Company does not (i) register its Common Stock with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (ii) become subject to Section 15(d) of the Exchange Act, (iii) supply information pursuant to Rule 15c2-11 thereunder, or (iv) have a registration statement covering the Securities under the Securities Act in effect when the Purchaser desires to sell the Securities, the Purchaser may be required to hold the Securities for an indeterminate period. The Purchaser also understands that any sale of the Securities that might be made by the Purchaser in reliance upon Rule 144 under the Securities Act may be made only in limited amounts in accordance with the terms and conditions of that rule.

5. Market Stand-Off Agreement. The Purchaser hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the Company’s initial public offering (“IPO”) and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (l80) days or such other period (not to exceed thirty-four (34) days after such 180-day period) as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (a) the publication or other distribution of research reports and (b) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711), (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such securities are then owned by the Purchaser or are thereafter acquired), or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The underwriters in connection with the Company’s IPO are intended third-party beneficiaries of this Section 5 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Purchaser further agrees to execute such agreements as may be reasonably requested by the underwriters in the Company’s IPO that are consistent with this Section 5 or that are necessary to give further effect thereto.

6. Restrictive Legend. Each certificate or document representing the Securities, and any other securities issued in respect of the Securities upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event shall be stamped or otherwise imprinted with a legend in substantially the following form (in addition to any legend required under applicable state securities laws):

THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, OFFER FOR SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT.

7. Miscellaneous.

(a) Waiver and Amendment. Any provision of this Agreement may be amended, waived or modified upon the written consent of the Company and the Purchasers holding a majority in interest of the then outstanding Loan Amounts. Any amendment or waiver effected in accordance with this Section 7(a) shall be binding upon the Company, each Purchaser and each transferee of each Purchaser.

(b) Governing Law. This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law provisions of the State of Delaware or of any other state.

(c) Entire Agreement. This Agreement, together with Exhibit A and Exhibit B attached hereto, constitute the full and entire understanding and agreement between the Company and each of the Purchasers with regard to the subjects hereof and thereof.

(d) Expenses. The Company and the Purchasers shall each bear their respective expenses and legal fees incurred in connection with the negotiation, execution and delivery of this Agreement and the Notes.

(e) Notices, etc. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed effectively given (i) upon actual delivery to theparty to be notified, (ii) 24 hours after sending a confirmed facsimile transmission, (iii) one (1) business day after deposit with a recognized overnight courier, or (iv) three (3) business daysafter deposit with the U.S. Postal Service by certified or registered mail, postage prepaid, return receipt requested, addressed or sent (1) if to a Purchaser, at the address or facsimile number ofthe Purchaser set forth below such party’s name on the Schedule of Purchasers, or at such other address or facsimile number as the Purchaser shall have furnished to the Company in writing upon 10 days’ notice, or (2) if to the Company, at 40 West 23rd Street, New York, New York 10010, or at such other address as the Company shall have furnished to the Purchasers in writing upon 10 days’ notice.

(f) Validity. If any provision of this Agreement or the Note shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(g) Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument. This Agreement may be executed by facsimile signatures.

[remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have executed this Note Purchase Agreement as of the date first set forth above.

	COMPANY:

	ECKO ENTERTAINMENT, INC. a Delaware corporation

	By:
		Guy Ben-Artzi
		President

COUNTERPART SIGNATURE PAGE TO
NOTE PURCHASE AGREEMENT

	PURCHASER:


	Eitan Matmon

COUNTERPART SIGNATURE PAGE TO
NOTE PURCHASE AGREEMENT

	PURCHASER:

	/s/ Craig dos Santos
	Andover Fund LLC.

	Andover Fund

	By:	/s/ Craig dos Santos

	Name: Craig dos Santos

	Title: Managing Director

EXHIBIT A

SCHEDULE OF PURCHASERS

Closing Date: August 31, 2011

PURCHASERS		AMOUNT OF NOTE


TOTAL:

EXHIBIT B

THIS NOTE AND THE SECURITIES EVIDENCED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THIS NOTE OR THE SECURITIES REPRESENTED HEREBY REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, OFFER FOR SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT.

UNSECURED CONVERTIBLE PROMISSORY NOTE

$50,000

August 29, 2011

FOR VALUE RECEIVED, Ecko Entertainment, Inc., a Delaware corporation (the “Company”), promises to pay to Andover Fund (the “Holder”), or registered assigns, the principal sum of Fifty-Thousand Dollars ($50,000), or such lesser amount as shall then equal the outstanding principal amount hereof, together with simple interest from the date of this Note on the unpaid principal balance at a rate equal to five percent (5%) per annum. The interest rate shall be computed on the basis of the actual number of days elapsed and a year of 365 days. All unpaid principal, together with unpaid and accrued interest payable hereunder, if not converted by the provisions of Section 6 below, shall be due and payable on demand by the Holder at any time after the earlier of (i) twelve (12) months following the date hereof, or (ii) upon or after the occurrence of an Event of Default (as defined below). This Note is one of a series of Unsecured Convertible Promissory Notes (the “Notes”) containing substantially similar terms and conditions issued by the Company pursuant to that certain Note Purchase Agreement dated August 29th, 2011 (the “Purchase Agreement”), and the holders of the Notes are referred to herein as the “Holders.”

The following is a statement of the rights of the Holder and the conditions to which this Note is subject, and to which the Holder hereof, by the acceptance of this Note, agrees:

1. Definitions. As used in this Note, the following capitalized terms have the following meanings:

(a) “Change of Control” shall mean (i) the sale, transfer or other disposition (but not including a pledge or mortgage to a bona fide lender) of all or substantially all of the assets of the Company (other than to a wholly-owned subsidiary of the Company), or (ii) the merger or consolidation of the Company into or with another entity after which the stockholders of the Company immediately prior to such transaction do not own, immediately following the consummation of the transaction by virtue of their shares in the Company or securities received in exchange for such shares in connection with the transaction, a majority of the voting power of the surviving entity. Notwithstanding the foregoing, a merger effected solely for the purpose of changing the domicile of the Company shall not be deemed a Change of Control.

(b) “Majority Holders” shall mean the Holders of a majority in interest of the then outstanding Loan Amounts (as defined in the Purchase Agreement).

(c) “Qualified Financing” shall mean an equity financing of the Company in which the Company issues shares of capital stock in a transaction or series of related transactions and receives an aggregate of at least $2,000,000 in consideration of such issuance (including consideration in the form of cancellation of the Notes).

2. Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note:

(a) Failure to Pay. The Company shall fail to pay any principal or accrued interest payment on the date due hereunder, and such payment shall not have been made within ten (10) business days of the Company’s receipt of the Holder’s written notice to the Company of such failure to pay;

(b) Voluntary Bankruptcy or Insolvency Proceedings. The Company shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its creditors, (iii) be dissolved or liquidated in full or in part, (iv) become insolvent (as such term may be defined or interpreted under any applicable statute), (v) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (vi) take any action for the purpose of effecting any of the foregoing;

(c) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company or of all or a substantial part of its property, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company or its debts under any bankruptcy, insolvency or other similar law or hereafter in effect, shall be commenced, and an order for relief entered, or such proceeding shall not be dismissed or discharged within thirty (30) days of commencement; or

(d) Breach of Agreements. Unless waived by the Majority Holders, the Company’s material breach of any representation, covenant or agreement contained in this Note or the Purchase Agreement, and such breach is not cured by the Company within fifteen (15) business days after written notice thereof, in reasonable detail, is given to the Company by the Holder.

3. Rights of Holder Upon Default. Upon the occurrence of any Event of Default and at any time thereafter during the continuance of such Event of Default, the Holder may declare all outstanding principal and accrued interest hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived. In addition to the foregoing, upon the occurrence or existence of any Event of Default, the Holder may exercise any other right, power or remedy granted to the Holder or otherwise permitted to the Holder by law, either by suit in equity or by action at law, or both.

4. Prepayment. This Note may not be prepaid in whole or in part at any time by the Company without the prior written consent of the Majority Holders.

5. Unsecured. This Note is a general unsecured obligation of the Company.

6. Conversion.

(a) Automatic Conversion. In the event the Company closes a Qualified Financing on or prior to the Maturity Date, all of the principal and accrued interest then outstanding under the Note shall be automatically converted, without further action on the part of the Holder, into shares of capital stock of the Company issued in the Qualified Financing at the closing thereof. The shares of capital stock issued upon such conversion shall be entitled to the same rights, and shall be subject to the same restrictions, as are applicable to the shares issued pursuant to the Qualified Financing, and the Holder shall become a party to the agreements entered into by the investors in connection with the Qualified Financing. The price per share for such conversion shall be equal to the lesser of (i) seventy percent (70%) of the price per share of the capital stock paid by the investors in the Qualified Financing, or (ii) the price per share that would result based on a valuation of the Company immediately prior to the closing of the Qualified Financing equal to $15,000,000 (such price per share to be determined by dividing $15,000,000 by the then fully diluted capitalization of the Company, including shares of Common Stock reserved for issuance under the Company’s stock option plans).

(b) Optional Conversion. In the event the Company closes an equity financing which is not deemed a Qualified Financing (a “Non-Qualified Financing”) on, prior to or after the Maturity Date, or the Company closes a Qualified Financing after the Maturity Date, at the option of the Holder, all of the principal and accrued interest then outstanding under the Note may be converted into shares of capital stock of the Company issued in the Non-Qualified Financing or the Qualified Financing, as applicable, at the closing thereof. The shares of capital stock issued upon such conversion shall be entitled to the same rights, and shall be subject to the same restrictions, as are applicable to the shares issued pursuant to the Non-Qualified Financing or Qualified Financing, as the case may be, and the Holder shall become a party to the agreements entered into by the investors in connection with the Non-Qualified Financing or Qualified Financing, as the case may be. The price per share for such conversion shall be equal to the lesser of (i) seventy percent (70%) of the price per share of the capital stock paid by the investors in the Non-Qualified Financing or Qualified Financing, as applicable, or (ii) the price per share that would result based on a valuation of the Company immediately prior to the closing of the Non-Qualified Financing or Qualified Financing, as applicable, equal to $15,000,000 (such price per share to be determined by dividing $15,000,000 by the then fully diluted capitalization of the Company, including shares of Common Stock reserved for issuance under the Company’s stock option plans).

(c) Notice. Written notice (the “Company Notice”) shall be delivered to the Holder of this Note at the address last shown on the records of the Company for the Holder or, if no such address appears, at the place where the principal executive office of the Company is located, notifying the Holder of the terms and conditions of the Qualified Financing or Non-Qualified Financing, as the case may be, the price per share for the conversion, the principal and accrued interest then outstanding under the Note, the date on which any such conversion will occur, and calling upon such Holder to surrender to the Company, in the manner and at the place designated, the Note. If the Holder elects to convert this Note, the Holder shall provide written notice to the Company no later than five (5) business days after the Company Notice is deemed given. Notwithstanding the foregoing, no notice is required to be delivered by the Holder to the Company to effect an automatic conversion of this Note pursuant to a Qualified Financing.

(d) Mechanics and Effect of Conversion. No fractional shares of capital stock of the Company shall be issued upon conversion of this Note. Upon the conversion of all of theprincipal and accrued interest outstanding under this Note, in lieu of the Company issuing any fractional shares to the Holder, the Company shall pay to the Holder the amount of outstanding principal and accrued interest that is not so converted. Upon full conversion of this Note, theCompany shall be forever released from all its obligations and liabilities under this Note.

7. Successors and Assigns. Subject to the restrictions on transfer described in Section 10 below, the rights and obligations of the Company and the Holder shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

8. Waiver and Amendment. Any provision of the Notes may be amended, waived or modified upon the written consent of the Company and the Majority Holders. Any amendment or waiver effected in accordance with this Section 8 shall be binding upon the Company, each Holder and each transferee of each Holder.

9. Transfer of this Note. This Note may not be transferred in violation of any restrictive legend set forth hereon. Each new note issued upon transfer of this Note shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act of 1933, as amended (the “Securities Act”), unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. Prior to presentation of this Note for registration of transfer, the Company shall treat the Holder as the owner and registered holder of this Note for the purpose of receiving all payments of principal and interest hereon and for all other purposes whatsoever, whether or not this Note shall be overdue and the Company shall not be affected by notice to the contrary.

10. Treatment of Note. To the extent permitted by generally accepted accounting principles, the Company will treat, account and report the Note as debt and not equity for accounting purposes and with respect to any returns filed with federal, state or local tax authorities.

11. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed effectively given (a) upon actual delivery to the party to be notified, (b) 24 hours after sending a confirmed facsimile transmission, (c) one (1) business day after deposit with a recognized overnight courier, or (d) three (3) business days after deposit with the U.S. Postal Service by certified or registered mail, postage prepaid, return receipt requested, addressed or sent (1) if to the Holder, at the address or facsimile number of the Holder last shown on the records of the Company for the Holder, or at such other address or facsimile number as the Holder shall have furnished to the Company in writing upon 10 days’ notice, or (2) if to the Company, at 40 West 23rd Street, New York, New York 10010, or at such other address as the Company shall have furnished to the Holder in writing upon 10 days’ notice.

12. Payment. Payment shall be made in lawful tender of the United States. Any payment of accrued interest and/or principal shall be payable on a Pro Rata Basis to all holders of the Notes. “Pro Rata Basis” shall mean the amount determined by dividing (a) the aggregate amount of unpaid principal under this Note by (b) the aggregate amount of unpaid principal under all Notes.

13. Expenses; Waivers. If action is instituted to collect this Note, the Company promises to pay all costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred in connection with such action. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.

14. Governing Law. This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law provisions of the State of Delaware or of any other state.

[signature page to follow]

IN WITNESS WHEREOF, the Company has caused this Unsecured Convertible Promissory Note to be issued as of the date first set forth above.

	ECKO ENTERTAINMENT, INC. a Delaware corporation

	By:
		Guy Ben-Artzi
		President

EX-10.7 8 v304722_ex10-7.htm EXHIBIT 10.7

GAME CLOSURE INC.

NOTE PURCHASE AGREEMENT

This Note Purchase Agreement (the “Agreement”) is made as of the 14th day of September, 2011 (the “Effective Date”) by and among Game Closure Inc., a Delaware corporation (the “Company”), and the persons named on the Schedule of Purchasers attached hereto (individually, a “Purchaser” and collectively, the “Purchasers”).

AGREEMENT

Now, Therefore, in consideration of the foregoing, and the representations, warranties, covenants and conditions set forth below, the Company and each Purchaser, intending to be legally bound, hereby agree as follows:

1. Amount and Terms of the Loans

1.1 The Loans. Subject to the terms of this Agreement, each Purchaser agrees to lend to the Company at each Closing (as hereinafter defined) the amounts set forth opposite each such Purchaser’s name on the Schedule of Purchasers attached hereto (each, a “Loan Amount” and collectively the “Total Loan Amount” or “Loan”).

2. The Closing

2.1 Closing Date The closing of the sale and purchase of convertible promissory notes in substantially the form attached hereto as Exhibit A (each, a “Closing Note” and collectively, the “Closing Notes”) shall be held on the Effective Date (the “Closing”). At the Closing, the Company shall issue and sell to the Purchasers, and the Purchasers shall purchase, those First Closing Notes in the amounts as set forth opposite their respective names in the Schedule of Purchasers for cash. In the event that there is more than one closing, the term “Closing” shall apply to each such closing, unless otherwise specified herein.

2.2 Delivery. At each Closing (i) each Purchaser shall deliver to the Company a check or wire transfer funds in the amount of such Purchaser’s portion of the Loan Amount; and (ii) the Company shall issue and deliver to such Purchaser a Note in favor of such Purchaser payable in the principal amount of such Purchaser’s Loan Amount.

3. Representations, Warranties and Covenants of the Company

The Company hereby represents and warrants to each Purchaser as follows:

3.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has the requisite corporate power to own and operate its properties and assets and to carry on its business as now conducted and as proposed to be conducted.

3.2 Corporate Power. The Company will have at the date of the Closing all requisite corporate power to execute and deliver this Agreement, to issue the Notes (collectively, the “Loan Documents”) and to carry out and perform its obligations under the terms of the Loan Documents. The Company’s Board of Directors has approved the Loan Documents based upon a reasonable belief that the Loan is appropriate for the Company after reasonable inquiry concerning the Company’s financing objectives and financial situation.

3.3 Authorization. All corporate action on the part of the Company, its directors and its stockholders necessary for the authorization, execution, delivery and performance of this Agreement by the Company and the performance of the Company’s obligations hereunder, including the issuance and delivery of the Notes and the reservation of the equity securities issuable upon conversion of the Notes (collectively, the “Conversion Securities”) has been taken or will be taken prior to the issuance of such Conversion Securities. The Loan Documents, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company enforceable in accordance with their terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and, with respect to rights to indemnity, subject to federal and state securities laws. The Conversion Securities, when issued in compliance with the provisions of the Loan Documents will be validly issued, fully paid and nonassessable and free of any liens or encumbrances and issued in compliance with all applicable federal and securities laws.

3.4 Governmental Consents. All consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, declarations, or filings with, any governmental authority, required on the part of the Company in connection with the valid execution and delivery of this Agreement, the offer, sale or issuance of the Notes and the Conversion Securities issuable upon conversion of the Notes or the consummation of any other transaction contemplated hereby shall have been obtained and will be effective at the Closing.

3.5 Offering. Assuming the accuracy of the representations and warranties of the Purchasers contained in Section 4 hereof, the offer, issue, and sale of the Notes and the Conversion Securities are and will be exempt from the registration and prospectus delivery requirements of the Securities Act of 1933, as amended (the “Act”), and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.

4. Representations and Warranties of the Purchasers

4.1 Purchase for Own Account. Each Purchaser represents that it is acquiring the Notes and the Conversion Securities issuable upon the conversion of such Notes (collectively, the “Securities”) solely for its own account and beneficial interest for investment and not for sale or with a view to distribution of the Securities or any part thereof, has no present intention of selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the same, and does not presently have reason to anticipate a change in such intention.

4.2 Information and Sophistication. Without lessening or obviating the representations and warranties of the Company set forth in Section 3, each Purchaser hereby: (i) acknowledges that it has received all the information it has requested from the Company and it considers necessary or appropriate for deciding whether to acquire the Securities, (ii) represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities and to obtain any additional information necessary to verify the accuracy of the information given such Purchaser and (iii) further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risk of this investment.

4.3 Ability to Bear Economic Risk. Each Purchaser acknowledges that investment in the Securities involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of its investment.

4.4 Further Limitations on Disposition. Without in any way limiting the representations set forth above, each Purchaser further agrees not to make any disposition of all or any portion of the Securities unless and until:

(a) There is then in effect a Registration Statement under the Act covering such proposed disposition and such disposition is made in accordance with such Registration Statement; or

(b) Such Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, such Purchaser shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration under the Act or any applicable state securities laws, provided that no such opinion shall be required for dispositions in compliance with Rule 144, except in unusual circumstances.

(c) Notwithstanding the provisions of paragraphs (a) and (b) above, no such registration statement or opinion of counsel shall be necessary for a transfer by such Purchaser to a partner (or retired partner) or member (or retired member) of such Purchaser in accordance with partnership or limited liability company interests, or transfers by gift, will or intestate succession to any spouse or lineal descendants or ancestors, if all transferees agree in writing to be subject to the terms hereof to the same extent as if they were Purchasers hereunder.

4.5 Accredited Investor Status. Each Purchaser is an “accredited investor” as such term is defined in Rule 501 under the Act.

4.6 Further Assurances. Each Purchaser agrees and covenants that at any time and from time to time it will promptly execute and deliver to the Company such further instruments and documents and take such further action as the Company may reasonably require in order to carry out the full intent and purpose of this Agreement and to comply with state or federal securities laws or other regulatory approvals.

5. Miscellaneous

5.1 Binding Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

5.2 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California as applied to agreements among California residents, made and to be performed entirely within the State of California, without giving effect to conflicts of laws principles.

5.3 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

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

5.5 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company at 530 University Avenue, #5, Palo Alto, California 94306, and to Purchaser at the addresses set forth on the Schedule of Purchasers attached hereto or at such other addresses as the Company or Purchaser may designate by ten (10) days advance written notice to the other parties hereto.

5.6 Modification; Waiver. No modification or waiver of any provision of this Agreement or consent to departure therefrom shall be effective unless in writing and approved by the Company and the Purchasers holding at least a majority of the outstanding principal of the Notes.

5.7 Entire Agreement. This Agreement and the Exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein.

In Witness Whereof, the parties have executed this Note purchase Agreement as of the date first written above.

Company:

Game Closure Inc.

/s/ Michael Carter
Michael Carter, President

SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT

In Witness Whereof, the parties have executed this Note purchase Agreement as of the date first written above.

Purchasers:

Andover Fund, LLC

/s/ Craig dos Santos
Craig dos Santos, Managing Director

Address:

427 N Tatnall St, #61508
Wilmington, Delaware 19801-2230

SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT

SCHEDULES AND EXHIBITS

Schedule of Purchasers

Exhibit A: Form of Closing Convertible Promissory Note

SCHEDULE OF PURCHASERS

	First Closing
Name and Address	Loan Amount

Andover Fund	$	80,000.00

TOTAL	$	80,000.00

Exhibit A

Form of Closing Convertible Promissory Note

THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). NO SALE OR DISPOSITION MAY BE EFFECTED, EXCEPT IN COMPLIANCE WITH RULE 144 UNDER SAID ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.

CONVERTIBLE PROMISSORY NOTE

$80,000	September 14^th, 2011
	Palo Alto, California

For Value Received, Game Closure Inc., a Delaware corporation (“Borrower”), hereby promises to pay to the order of Andover FundD (“Lender”), in lawful money of the United States of America and in immediately available funds, the principal sum of Eighty-Thousand Dollars ($80,000.00) together with accrued and unpaid interest thereon, each due and payable on the date and in the manner set forth below.

1. Interest Rate. Borrower promises to pay interest on the outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at the rate of two percent (2%) per annum or the maximum rate permissible by law (which under the laws of the State of California shall be deemed to be the laws relating to permissible rates of interest on commercial loans), whichever is less. Interest shall be calculated on the basis of a 365-day year for the actual number of days elapsed.

2. Application of Payments. Payment on this Note shall be applied first to accrued interest, and thereafter to the outstanding principal balance hereof.

3. Mandatory Conversion. In the event that Borrower issues and sells shares of its Preferred Stock (the “Preferred Stock”) to investors in a bonafide equity financing of at least $1,000,000, including conversion of this Note (the “Financing”) prior to the Maturity Date (as defined below), then the outstanding principal balance and unpaid accrued interest of this Note shall automatically convert in whole without any further action by Lender into the number of shares of such series of Preferred Stock equal to the number obtained by dividing the aggregate amount of principal outstanding under this Note and any accrued interest hereunder by an amount equal to the lesser of (a) 100% of the purchase price for the Preferred Stock in the Financing, or (b) the price per share of such Preferred Stock assuming a $16,000,000 fully diluted pre-money valuation of the Company.

4. Acquisition. If this Note has not been converted in accordance with the terms of Section 3 above, and, if at any time before the Maturity Date (as defined below), Borrower has a Change of Control (as defined below), then the Lender shall have the option to either (a) convert the Note in whole into the number of shares of Common Stock of the Company equal to the number obtained by dividing the aggregate amount of principal outstanding under this Note and any accrued interest hereunder by an amount equal to the price per share of such Common Stock assuming a $16,000,000 fully diluted pre-money valuation of the Company or (b) cancel the principal and all accrued interest under this Note and receive an amount equal to three times (3.0x) the amount of cancelled principal and accrued interest.

For the purposes of this Note, the term “Change of Control” shall mean the sale, conveyance or other disposition of all or substantially all of the Company’s property or business or the Company’s merger with or into or consolidation with any other corporation, limited liability company or other entity (other than a wholly owned subsidiary of the Company), provided that the term “Change of Control” shall not include a merger of the Company effected exclusively for the purpose of changing the domicile of the Company, an equity financing in which the Company is the surviving corporation, or a transaction in which the stockholders of the Company immediately prior to the transaction own 50% or more of the voting power of the surviving corporation following the transaction.

5. Maturity. Unless this Note has been converted in accordance with the terms of Sections 3 or 4 above, the outstanding principal balance and unpaid accrued interest of this Note shall become fully due and payable on September 14th, 2013 (the “Maturity Date”).

6. Prepayment. This Note may be prepaid by the Borrower at any time prior to the Maturity Date with the prior written consent of the Lender.

7. Unsecured and Subordinated. The indebtedness represented by this Note is unsecured and the Lender acknowledges and agrees that the obligation of the Borrower to make payment on this Note is expressly subordinated in right of payment to the prior payment in full of all of the Borrower’s commercial finance lenders, insurance companies, lease financing institutions or other lending institutions approved by the Borrower’s Board of Directors and regularly engaged in the business of lending money.

8. Waiver. Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest of this Note, and shall pay all costs of collection when incurred, including, and without limitation, reasonable attorneys’ fees, costs and other expenses. The right to plead any and all statutes of limitations as a defense to any demands hereunder is hereby waived to the full extent permitted by law.

9. Governing Law. This Note shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.

10. Successors and Assigns. The provisions of this Note shall inure to the benefit of and be binding on any successor to Borrower and shall extend to any holder hereof.

11. Amendment. Any provision of this Note may be amended or waived by the written consent of the Borrower and the Lender.

Borrower	Game Closure Inc.

	/s/ Michael Carter
	Michael Carter,
	President

Lender	Andover Fund

	/s/ Craig dos Santos
	Craig dos Santos,
	Managing Director

EX-10.9 9 v304722_ex10-9.htm EXHIBIT 10.9

OPERATING AGREEMENT FOR MEMBER-MANAGED Byte Factory LLC

INTRODUCTION

The undersigned are all of the Members of Byte Factory LLC, a Limited Liability Company formed under the laws of the State of Delaware. The undersigned hereby adopt the following Operating Agreement pursuant to the LLC laws of the State of Delaware, and do hereby certify and agree as follows:

ARTICLE I – NAME

1.1 Name of Business; The name of the Company is Byte Factory LLC. The business of the Company may be conducted under such trade or fictitious names as the Members may determine.

ARTICLE II. – OFFICES AND REGISTERED AGENT

2.1 Principal Office: The principal office of the Company is located at New York, NY.

2.2 Registered Office: The registered office of the Company in the State of Delaware is the address of the Registered Agent Service of Bizfilings.

ARTICLE III. – BUSINESS PURPOSE

3.1 Business Purpose: The purpose of the Company is to engage in any lawful business that may be engaged in by a limited liability company organized under the LLC laws of the State of Delaware.

ARTICLE IV. – MEMBERS

4.1 Members; The names of each Member, their capital contributions, and percentage interests are as follows:

Virk Investments 1, LLC - $100,000, 3.2624% interest

Brian Barker - $10,000, 0.3262% interest

Muhammad Raza Shaikh - $5,000, 0.1632% interest

North Bay Solutions, LLC - Discounted current service rates by 35%, until $100,000 in discounts has been used up, 3.2624% interest

And over Fund LLC - 6.5% interest, for contributing Andover Fund’s 33% membership interest in Tumbleweed Technologies LLC

Youtopia Tech LLC will get a 86.4858% membership interest in Byte Factory LLC. It has contributed all its assets (such as the Facebook and Myspace Games Dog Wars, Cat Wars, and Stoned Cows; the unfinished Facebook game Final Conquest; and its 67% membership interests in Tumbleweed Technologies LLC). The initial capital account for Youtopia Tech LLC (i.e. value of all contributed assets) will be $2,650,998.

Since 100% of interests in Tumbleweed Technologies LLC are contributed to Byte Factory LLC, upon execution of this revised operating agreement, all the assets (IP) of Tumbleweed Technologies LLC shall be transferred to Byte Factory LLC, and the entity Tumbleweed Technologies LLC shall be wound down. Tumbleweed Technologies LLC’s bank account shall be closed and any remaining funds shall be transferred to Byte Factory LLC’s bank account. Tumbleweed Technologies LLC’s business shall be continued under the Byte Factory LLC name / entity.

4.2 Additional Members: Additional Members may be admitted upon the consent of all Members.

4.3 Withdrawing: A Member may not withdraw from the Company.

ARTICLE V. – FISCAL YEAR

5.1 Fiscal Year: The fiscal year of the Company will be a calendar year. The books and records of the Company will be maintained in accordance with generally accepted accounting principles and Sec. 704(b) of the Internal Revenue Code and the regulations thereunder.

ARTICLE VI. – ALLOCATIONS AND DISTRIBUTIONS

6.1 Allocations and Distributions: All Items of Company income, gain, loss, deduction, credit, or the like will be allocated among the Members in accordance with their respective percentage interests.

ARTICLE VII. – ASSIGNMENT OF MEMBERSHIP INTERESTS

ARTICLE VIII. – VOTING; MEMBERS MEETINGS

8.1 Voting: Except to the extent provided to the contrary in this Operating Agreement, all Members will be entitled to vote on any matter submitted to a vote of the Members.

a) Unless a greater vote is required by the LLC laws of the State of Delaware the Articles of Organization, or this Operating Agreement, the affirmative vote or consent of a majority in interest of the Members present at meeting at which a quorum is present will be the act of the Members.

b) The consent of all Members will be required to approve the following; 1) the dissolution of the Company, 2) the authorization or ratification of acts that would otherwise violate the duty of loyalty, 3) an amendment to the Articles of Organization, 4) the compromise of an obligation to make a contribution, 5) the making of interim distributions, 6) the admission of a new Member, 7) the use of the Company’s property to redeem an interest subject to a charging order, 8) an amendment to the Operating Agreement.

c) The consent of a majority in interest is sufficient to approve the following: 1) the merger of the Company; 2) the conversion of the Company, 3) the safe, exchange, lease, or other transfer of all or substantially all of the assets of the Company other than in the ordinary course of business. If the Company or its assets are to be sold based on the consent of the majority in interest which results in proceeds to a minority interest which are less than their initial cash contribution, then those members should first receive back an amount equal to their cash contribution before proceeds are distributed to other members.

8.2 Annual Meetings of Members: Annual meetings of Members may be held at such time and at such place as the Members designate. Special meetings of Members may be called at the request of any Member.

8.4 Quorum: A majority in interest, represented in person or by proxy, will constitute a quorum for the transaction of business at a meeting of Members.

8.5 Unanimous Written Consent: Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting, if consents in writing, setting forth the action taken, are signed by all Members entitled to vote at the meeting.

8.6 Voting by Proxy: A Member may appoint a proxy to vote or otherwise act for the Member by signing an appointment instrument either personally or by the Member’s attorney-in-fact.

8.7 Meeting Participation: A Member may participate in a meeting by means of telephone conference or similar equipment.

ARTICLE IX – BOARD OF DIRECTORS

Byte Factory LLC does not currently have a board of directors. In the event that a Board of Directors is formed, the seats shall be as follows:

Joshua Liptzin

Timo Burkard

Andrew Vurlumis

Brian Barker/Rizwan Virk

Andover Fund LLC

ARTICLE X. – MANAGEMENT OF THE COMPANY

9.1 Management: The Company will be managed by all of its Members.

a) Subject to the delegation of rights and powers provided for herein, the Members will have the sole right to manage the business of the Company and will have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Company.

b) The Members may appoint a President, Treasurer, Secretary, or such other Officers as they may deem necessary or appropriate.

c) The Members may appoint, employ, or otherwise contract with other persons or entities for the transaction of business of the Company or the performance of services for or on behalf of the Company as they may deem necessary or appropriate. The Members may delegate to any Officer of the Company or to any other person or entity such authority to act on behalf of the Company as they may deem appropriate.

d) Any Member, Officer, or other person specifically authorized by the Members may execute any contract or other agreement or document on behalf of the Company and may execute and file on behalf of the Company with the secretary of state any document required or permitted to be filed under the LLC laws of the State of Delaware.

ARTICLE XI. – STANDARD OF CONDUCT; INDEMNIFICATION

10.1 Conduct: A Member owes the Company and its other members a duty of loyalty and a duty of care. The duty of loyalty is limited is to: 1) accounting to the Company and holding as trustee for it, any property, profit, or benefit derived by the Member in the conduct or winding up of the Company’s business, 2) refraining from dealing with the Company as or on behalf of a party having an interest adverse to the Company, and 3) refraining from competing with the Company, The duty of care is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. A Member will discharge his or her duties consistently with the obligation of good faith and fair dealing.

10.2 Indemnification: Except as otherwise provided in this Article, the Company will indemnify any Member and may indemnify any employee or agent of the Company who was or is a party or is threatened to be made a party to any action, suit or proceeding, other than an action by or in the right of the Company, by reason of the fact that such person is or was a Member, employee or agent of the Company against expenses, including attorney’s fees, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with the action, suit or proceeding, if the person met the standard of conduct set forth above in this Article.

a) To the extent that a Member, employee, or agent of the Company has been successful on the merits or otherwise in defense of an action, suit, or proceeding, such person will be indemnified against actual and reasonable expenses, including attorney’s fees, incurred by such person in connection with the action, suit, or proceeding and any action, suit or proceeding brought to enforce the mandatory indemnification provided herein. Any indemnification permitted under this Article, unless ordered by a court, will be made by the Company only as authorized in the specific case upon a determination that the indemnification is proper under the circumstances because the person to be indemnified has met the applicable standard of conduct. That determination will be made by a majority vote of the Members who are not parties or threatened to be made parties to the action, suit, or proceeding.

b) No indemnification will be provided to any Member, employee, or agent of the Company for or in connection with the receipt of a financial benefit to which such person is not entitled, voting for or assenting to a distribution to Members in violation of this Operating Agreement or the Act, or a knowing violation of law.

ARTICLE XII. – DURATION; DISSOLUTION

11.1 Duration: The Company will continue in existence until dissolved pursuant to the LLC laws of the State of Delaware.

11.2 Dissolution: The Company will be dissolved and have its affairs wound up and terminated upon the determination of all of the Members to dissolve the company, or upon the occurrence of any other event causing a dissolution of the Company pursuant to the LLC laws of the State of Delaware.

11.3 Winding Up: Upon dissolution, the Company will cease carrying on its business and affairs and will commence the winding up of the Company’s business and affairs and complete the winding up as soon as practicable. Upon the winding up of the Company, the assets of the Company will be distributed first to creditors to the extent permitted by law in satisfaction of the Company’s debts, liabilities, and obligations, and second to Members and former Members in satisfaction of liabilities for distributions and in accordance with their percentage interests.

ARTICLE XIII. – MISCELLANEOUS PROVISIONS

12.1 Entire Agreement: This Operating Agreement embodies the entire agreement and understanding among the Members with respect to the subject matter within. This Operating Agreement supersedes any and all other agreements, either oral or written, among the Members with respect to the subject matter within.

12.2 Severance: Every provision of this Operating Agreement is intended to be severable. The invalidity or illegality of any particular provision of this Operating Agreement will not affect the other provisions, and this Operating Agreement will be construed in all respects as if such invalid or illegal provisions were omitted.

12.3 Amendments and Revocations: This Operating Agreement may be amended or revoked at any time by the written consent of all of the Members.

12.4 State Law; This Operating Agreement will be governed by, construed, and enforced in accordance with the laws of the State of Delaware.

THE UNDERSIGNED, being all of the Members of evidence their adoption and ratification of the foregoing Operating Agreement of the LLC.

Dated:


Josh Liptzin for Youtopia Tech LLC

Dated:


Brian Barker for North Bay Solutions, LLC

Dated:

9/12/2011

/s/ Riz Virk
Riz Virk for Virk Investments I, LLC

Dated:


Brian Barker

Dated:


Muhammad Raza Shaikh

Dated:

/s/ Craig dos Santos
Craig dos Santos for Andover Fund, LLC

EX-10.10 10 v304722_ex10-10.htm EXHIBIT 10.10

Tapjoy Publisher Agreement: Term Sheet

Tapjoy
Contact Name: Chris Akhavan
Address: 111 Sutter Street, 13th Floor	Contact Number: 415-640-1664
City: San Francisco State: CA Zip: 94104	Email: ca@tapjoy.com

Publisher Name: Andover
Contact Name: Benjamin Lewis
Address: 350 Broderick St	Contact Number: 734-657-4910
City: San Francisco State: CA Zip: 94117	Email: ben.lewis@gmail.com

Principal Terms

Direct Payment Revenue – share to Publisher		100%
Alternative Payment Revenue – share to Publisher		70%
Payment Terms		Net 30
Marketing Credits		$50,000 per title
Development Credits		$225,000
Recoupment Amount		$50,000 total
Exclusivity Period		24 months
Applications covered by this Agreement		All existing publisher Applications All Applications launched during the Agreement Period
Projected Launch Date		August 1^st, 2011
Operating Systems covered by this Agreement		iOS and Android
Additional Terms		20% transfer bonus

By its signature below, Publisher represents that it has read, understands and agrees to the Additional Terms and Conditions attached hereto (the “Terms and Conditions”), and agrees that such Terms and Conditions are incorporated herein. This Term Sheet and the Additional Terms and Conditions collectively constitute the “Agreement.”

IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the last date set forth below.

Tapjoy:			Publisher:
Signature:			Signature:
Printed Name: Mihir Shah			Printed Name: Benjamin Lewis
Title: CEO			Title: Partner
Date:			Date:

Tapjoy/Andover Agreement

CONFIDENTIAL

Additional Terms and Conditions

The following Terms and Conditions shall be deemed incorporated by reference into the attached Term Sheet (the “Term Sheet”) entered into between Tapjoy, Inc. (“Tapjoy”) and the publisher identified in the Term Sheet above (the “Publisher”). The Terms and Conditions and the attached Term Sheet collectively constitute the “Agreement.”

1. Definitions

“Advertisements” means all advertisements, offers or other marketing actions powered by Tapjoy within an Application, whether occurring within or outside of Tapjoy’s offerwall.

“Alternative Payment Revenue” means revenue derived from the Alternative Payment Service, less deductions for fraud, charge-backs, refunds, credit card processing fees, uncollected amounts, agency fees, marketing credits and referral fees.

“Alternative Payment Service” means Tapjoy’s service that incentivizes Users’ completion of Actions (as defined herein) in response to Advertisements presented anywhere within an Application. Actions is defined to include the installation of third party applications, completion of specified actions within 3^rd party applications or on specified URLs, activation of third party services, participation in surveys, interaction with video and/or audio content, visits to prescribed geographic locations, transmitting messaging, and any other action for which Advertisements provide incentive to Users.

“Application(s)” means those Publisher application(s) as specified in the Term Sheet.

“Cross-Promotion Service” means Tapjoy’s service, interface and solutions that allow Publisher to cross-promote any application(s) or properties that it owns within the Application(s). For clarity, Publisher may not utilize the Cross-Promotion Service for any third party applications (including those of its partners or affiliates).

“Development Credits” means payments provided by Tapjoy to Publisher as described in the Term Sheet. These payments are intended to assist Publisher in launching the Application(s) more quickly.

“Direct Payment Revenue” means revenue resulting from payments from Users for virtual goods or currency in an Application, whether such payments originate via use of credit card, stored value or debit card, PayPal transfer, bank transfer, mobile billing or any other such direct payment source, less deductions for fraud, charge-backs, refunds, credit card processing fees or uncollected amounts.

"Exclusivity Period" means the period during which Publisher agrees to utilize the Alternative Payment Service for the Applications and is prohibited from utilizing any services similar to the Alternative Payment Service from other venders. The Exclusivity Period shall be for the duration specified in the Term Sheet plus any Renewal Period, and shall commence on the date that the first Application(s) begins utilizing the Alternative Payment Service and is made available to Users.

“Marketing Credits” means the non-monetizable and non-transferrable credits that are provided by Tapjoy to Publisher as described in the Term Sheet. Marketing Credits can only be utilized in lieu of other forms of payment to Tapjoy and only for the promotion and distribution of the Application(s) within Tapjoy’s network. For avoidance of doubt, Marketing Credits have no cash value.

Tapjoy/Andover Agreement

CONFIDENTIAL

“Optional Services” means the Cross-Promotion Service, Virtual Currency Hosting Service, Virtual Goods Hosting Service and other Tapjoy services which will be provided free-of-charge upon Publisher’s written request to Tapjoy.

“Projected Launch Date” means the date at which Publisher intends to publically launch the first Application and is specified in the Term Sheet.

“Recoupment Amount” means the amount of Alternative Payment Revenue otherwise payable to the Publisher that will be permanently withheld by Tapjoy in order to recover Marketing Credits and/or Development Credits included in the Term Sheet. For clarity, distribution of Alternative Payment Revenue to the Publisher per the percentages stipulated in the Term Sheet will not begin for an Application until the full amount of Marketing Credits and/or Development Credits have been recovered by Tapjoy.

“Renewal Period” means the period associated with any auto-renewal of the Agreement as described in the section Term; Termination.

“Tapjoy Services” means the Alternative Payment Service and, if activated upon written request by Publisher, the Optional Services.

“Users” means the end users of the Application(s).

“User Data” means all data and information generated by Users during their interactions with the Application(s) and in conjunction with the Tapjoy Services.

“Virtual Currency Hosting Service” means the hosting service, interface and solutions that Tapjoy can provide to enable Publisher to host and manage a virtual currency system for the Application(s).

“Virtual Goods Hosting Service” means the service, interface and solutions that Tapjoy can provide to enable Publisher to host and manage a virtual goods system for the Application(s).

2. Services

2.1. Services; Implementation. Publisher agrees to display all Advertisements and use the Tapjoy Services in accordance with this Agreement. Publisher shall comply with any placement and delivery requirements, any requirements to implement code and any technical specifications that are provided by Tapjoy at any time to enable proper display of the Advertisements on a reasonably balanced schedule. Any exceptions must be approved by Tapjoy in writing. Publisher will be solely responsible for any and all costs Publisher incurs for the display of the Advertisements in accordance with such specifications and for any programming related to the same which Publisher elects to undertake.

2.2. No Alteration or Aggregation. Unless Tapjoy approves specifically in writing: (i) Publisher may only use the Tapjoy Services (including any SDK) as provided by Tapjoy, without modification; (ii) Publisher shall not modify or alter the content, text or appearance of any Advertisements, or aggregate one or more Advertisements with other offers (for example, by creating an aggregate offerwall that combines Advertisements with offers from services other than the Tapjoy Services); and (iii) Publisher shall not use any other services that provide to Users virtual goods or currency in exchange for acting on promotional offers, or other services similar to the Tapjoy Services, in connection with any Application, unless and until Publisher permanently ceases to use the Tapjoy Services in connection with such Application.

Tapjoy/Andover Agreement

CONFIDENTIAL

2.3. Exclusivity. During the Exclusivity Period Tapjoy will be the exclusive provider of, and Publisher will not retain any third party to provide, any services similar to the Alternative Payment Service for the Application(s). Publisher acknowledges that the Marketing Credits and/or Development Credits and the Publisher revenue shares set forth in the Term Sheet are in partial consideration for Exclusivity and, therefore, in the event Publisher uses third party services similar to the Alternative Payment Service for the Application(s) during the Exclusivity Period (an “Exclusivity Breach”), the Publisher shall promptly pay Tapjoy a sum equal to the cumulative amount of Marketing Credits and/or Development Credits plus difference between the following: (1) revenue received by Publisher up to the time of the Exclusivity Breach; and (2) revenue that Publisher would have received if the Term Sheet stipulated an Alternative Payment Revenue – share to Publisher equal to Tapjoy’s standard non-exclusive publisher revenue share agreements; in addition to any other remedies available to Tapjoy at law or in equity. Publisher further acknowledges that this payment is neither a penalty for nor a total estimate of all the damages Tapjoy may suffer in the event of Publisher’s breach of this Section 2.3.

2.4. Terms of Payment. After it recoups the Recoupment Amount (if any), Tapjoy shall pay Publisher the revenue share of Alternative Payment Revenue set forth in the Term Sheet. Such payments shall be made on the terms set forth in the Term Sheet provided that amounts payable of less than $250 will be held until amounts due equal or exceed $250. Publisher shall be solely responsible for the payment of, and shall pay when due, all applicable federal and state taxes, including any sales, use, excise or transfer taxes and other taxes associated with payments to Publisher under this Section 2.4 (except for taxes assessed on Tapjoy’s net income), and shall indemnify Tapjoy for all costs, losses, liabilities and expenses, including penalties, arising from any failure to do so. Further, Publisher will provide a monthly statement to Tapjoy that documents the calculation of Direct Payment Revenue due to Tapjoy per the Term Sheet. Tapjoy will deduct its Direct Payment Revenue share from any amounts owed to Publisher under this Section 2.4. In the event that for more than sixty days, the aggregate amounts owed to Publisher are less than the Direct Payment Revenue share owed to TapJoy, Tapjoy will send an invoice to Publisher for amounts owed. Such invoice shall be due and payable within thirty days of receipt.

2.5. Fraud. Tapjoy will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or similar device in connection with any Advertisements provided by Tapjoy, as reasonably determined by Tapjoy. Tapjoy shall use commercially reasonable efforts to notify Publisher of such fraudulent activity within seven days after the end of the month in which the fraudulent activity occurred. Neither party will be obligated to make a payment to the other party based on: (a) any purchase of virtual goods or virtual currency through any fraudulent or invalid means, including the fraudulent use of credit cards or other means of payment; or (b) purchases of virtual goods or currency that are refunded or subject to a credit card charge-back. In the event that either party does not make a payment pursuant to this Section 2.5

, such party shall, at that time, provide reasonable documentation to the other party with respect thereto.

2.6. Content. Tapjoy agrees not to transmit any Advertisements to Publisher that are unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, or technically incompatible with the delivery platform. Publisher may also request that Tapjoy block Advertisements from a list of specified domain names, which list may be updated by Publisher at Publisher’s reasonable discretion. Tapjoy will use commercially reasonable efforts to block Advertisements from such domains for display on the Application(s).

2.7. License to User Data. Publisher hereby grants to Tapjoy a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide and perpetual right and license to reproduce, display, distribute, create derivative works from and otherwise use the User Data only to fulfill Tapjoy’s obligations under this Agreement and to improve Tapjoy’s services.

3. Marketing. Publisher hereby grants to Tapjoy a royalty-free, fully paid up, sub-licensable, transferrable, nonexclusive, worldwide and perpetual license to reproduce, display, distribute and otherwise use the trademarks, service marks, logos or other indicia of origin associated with Publisher solely for the purpose of indicating that Publisher is a client of Tapjoy in Tapjoy’s advertising, marketing or other promotional materials.

Tapjoy/Andover Agreement

CONFIDENTIAL

4. Application License. If Publisher receives any Marketing Credits or Development Credits hereunder, Publisher agrees to grant and hereby grants Tapjoy a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide, and perpetual license to copy, display, perform, create derivative works of, distribute, operate, monetize and otherwise use the Application(s). However, Tapjoy may exercise the rights granted under this Section 4 only if: (a) Publisher becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, or ceases to conduct business during the course of the Agreement; and (b) Tapjoy has yet to successfully recoup the full Recoupment Amount.

5. Failure to Launch Application. If Publisher receives any Development Credits hereunder, Publisher agrees to provide regular updates to Tapjoy on Application development progress leading up to the Projected Launch Date. If the Application has not been launched within 90 days of the passing of the Projected Launch Date, Publisher shall promptly make payment to Tapjoy in the amount of the Developer Credits unless otherwise agreed in writing by Tapjoy.

6. Compliance with Laws. Publisher agrees that it will display the Advertisements and provide any data to Tapjoy as required under this Agreement in compliance with all applicable local, state, national and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Publisher’s country of residence. Publisher represents and warrants that the Application(s): (a) are in compliance with all applicable local, state, national and international laws, rules and regulations, and contractual obligations between Publisher and any third party; and (b) do not violate any third party’s intellectual property or proprietary rights. Publisher will not, will not agree to, and will not authorize or encourage any third party to: (a) interfere or attempt to interfere with the proper working of any of the Tapjoy Services or prevent others from using the Tapjoy Services; or (b) use any of the Tapjoy Services for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Tapjoy’s sole discretion, and may subject Publisher to state and federal penalties and other legal consequences. Tapjoy reserves the right, but will have no obligation, to review Publisher’s display of the Advertisements and use of any of the Tapjoy Services in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.

7. Representations and Warranties. Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; (c) it has obtained and shall maintain all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder (including, in the case of Publisher, any necessary rights or consents from Users to allow User Data to accrue to Tapjoy pursuant to Section 2.7 ); and (d) it will comply with all applicable laws, rules and regulations in the performance of this Agreement.

8. Indemnification. Each party agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees, agents, independent contractors and customers harmless from and against any losses, costs, liabilities, damages, claims and expenses, including attorneys’ fees, arising out of any third party claims resulting from the breach of the representations, warranties and covenants made by such party in this Agreement. Without limiting the generality of the foregoing, each party agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees, agents, independent contractors and customers harmless from and against any losses, costs, liabilities, damages, claims and expenses, including attorneys’ fees, arising out of any claims that any applications (including the Application(s)), products, services or software distributed, made available or developed by the indemnifying party infringe any third party’s intellectual property rights, privacy, rights of publicity or other rights. The indemnifying party reserves the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party and the indemnified party agrees to cooperate with the indemnifying party’s defense of such claims. The indemnifying party shall not enter into any settlement for which indemnity is sought unless: (a) such settlement includes an unconditional release of the indemnifying party from all liability on all claims; or (b) the indemnifying party gives its prior written approval, which shall not be unreasonably withheld or delayed.

Tapjoy/Andover Agreement

CONFIDENTIAL

9. Disclaimers; No Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, TAPJOY MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER, INCLUDING ADVERTISEMENTS AND THE TAPJOY SERVICES AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. TAPJOY DOES NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF THE TAPJOY SERVICES INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL); AND (B) THE RESULTS OF ANY CONSULTING OR DEVELOPMENT SERVICES PROVIDED BY TAPJOY. Without limiting the generality of the foregoing, Publisher acknowledges that the Tapjoy Services are based on an auction model and some of the main factors that determine the revenue therefrom are not within Tapjoy’s control.

10. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL TAPJOY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF TAPJOY OR A TAPJOY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASES OF BREACHES OF SECTION 12, IN NO EVENT WILL TAPJOY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO PUBLISHER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID OR PAYABLE TO PUBLISHER FOR ADVERTISEMENTS ACTUALLY DISPLAYED BY PUBLISHER HEREUNDER AND TO WHICH THE CLAIM RELATES OR $5,000, WHICHEVER IS LOWER.

11. Ownership. Publisher acknowledges that Tapjoy will provide third-party Advertisements for display on the Application(s) pursuant to this Agreement. Publisher agrees that it will use any data (including any usage data and compilations thereof), information or software provided by Tapjoy to Publisher only for the purpose of displaying Advertisements for Tapjoy on the Application(s) as set forth in this Agreement. As between the parties, Tapjoy and its licensors will exclusively own and retain all rights, title, and interest in and to: (a) the Tapjoy Services, including all information and software related thereto and all data (including any usage data and compilations thereof but excluding any User Data) collected through the Tapjoy Services or the Advertisements and (b) any materials, information, inventions, data or software (and improvements and updates related thereto) which were owned by Tapjoy prior to this Agreement or which are subsequently created by Tapjoy (either solely or jointly with Publisher) under this Agreement. As between the parties, Publisher and its licensors will own and retain all rights, title, and interest in and to: (a) the Application(s); and (b) User Data. Unless otherwise expressly provided for in this Agreement, both parties agree not to copy, alter, modify, or create derivative works of the other party’s data, information, software or services or otherwise use the other party’s services or any of such party’s data, information or software in any way that violates the use restrictions contained in this Agreement. Tapjoy does not grant to Publisher any license, express or implied, to the intellectual property of Tapjoy or its licensors.

Tapjoy/Andover Agreement

CONFIDENTIAL

12. Confidentiality. “Confidential Information” of Tapjoy shall mean: (a) the Advertisements, prior to publication; and (b) any data (including any usage data and compilations thereof), information or software relating to or collected through the Tapjoy Services (except for the User Data); “Confidential Information” of Publisher shall mean the User Data; and “Confidential Information” of either party shall mean: (a) the existence and content of this Agreement; and (b) any other information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” Each party will keep confidential, and neither party will use for any purpose, or disclose to any third party, any Confidential Information of the other party except to fulfill its obligations or exercise its rights under this Agreement. This restriction will survive expiration or termination of this Agreement. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information; (b) has become publicly known through no breach of this Section 12 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.

13. Term; Termination. This Agreement shall begin on the latest date of execution by either party (the “Execution Date”) and remain in effect until expiration of the Exclusivity Period (the period beginning with the Execution Date and ending upon expiration of the Exclusivity Period being the “Agreement Period”), unless terminated earlier as provided for in Section 6 or this Section 13. Further, the Exclusivity Period and hence the Agreement Period shall be subject to successive one-year auto-renewals (collectively constituting the “Renewal Period”) unless either party provides notice to the other party of its intention to terminate the agreement with at least 30 days notice prior to the expiration of the Exclusivity Period. In the event of a material breach by one party, the non-breaching party may terminate this Agreement immediately without prior notice or cure period. In the event of any termination, both parties will remain liable for any amounts owed to the other party prior to the date of termination and such obligation to pay shall survive any termination of this Agreement. Sections 2.2 , 2.4 , 2.5 , 2.6 , 2.7, 3 through 15 shall also survive.

14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Any dispute hereunder will be negotiated in good faith between the parties within 45 days commencing upon written notice from one party to the other and neither party will file an action prior to the termination of such 45 day period. Publisher agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or federal courts in and for Alameda County, California, and Publisher hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding the foregoing, Tapjoy may seek immediate injunctive relief in any court having jurisdiction in the event of breach or threatened breach by Publisher of Sections 11 or 12.

15. Miscellaneous. The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Publisher, but may be assigned by Tapjoy to an entity that succeeds to all or substantially all of Tapjoy’s business or assets. Tapjoy and Publisher are independent contractors, and neither Tapjoy nor Publisher is an agent, representative or partner of the other. This Agreement sets forth the entire agreement between Tapjoy and Publisher, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein (with the exception of any ongoing Publisher Agreements between the parties). This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be sent to any of the contacts set forth in the Term Sheet by facsimile or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

Tapjoy/Andover Agreement

CONFIDENTIAL

EX-10.12 11 v304722_ex10-12.htm EXHIBIT 10.12

EMPLOYMENT AGREEMENT

This AGREEMENT dated as of February 29, 2012 between Craig dos Santos, residing at 509 Duboce Ave., San Francisco, CA 94117 (“Executive”), and ASCEND ACQUISITION CORP., a Delaware corporation having its principal office at _______________ (“Company”);

WHEREAS, Executive is currently serving as the Chief Executive Officer of Andover Games, LLC (“Andover Games”);

WHEREAS, the Company has entered into a Merger Agreement and Plan of Reorganization (the “Merger Agreement”) dated as of December 30, 2011, by and among the Company, Ascend Merger Sub, LLC (“Merger Sub”), Andover Games and certain of the members of Andover Games, pursuant to which Merger Sub will be merged with and into Andover Games (the “Merger”);

WHEREAS, the Company desires to enter into a new employment agreement with Executive to take effect upon consummation of the Merger (the “Commencement Date”); and

WHEREAS, Executive is willing to enter into such employment agreement on the terms, conditions and provisions hereinafter set forth.

IT IS AGREED:

Employment, Duties and Acceptance.

1.1 General. The Company hereby agrees to the continued employment of Executive as its Chief Executive Officer (“CEO”), effective on the Commencement Date. All of Executive’s powers and authority in any capacity shall at all times be subject to the direction and control of the Company’s Board of Directors. The Board may assign to Executive such management and supervisory responsibilities and executive duties for the Company or any subsidiary of the Company, including serving as an executive officer and/or director of any subsidiary, as are consistent with Executive’s status as CEO. The Company and Executive acknowledge that Executive’s primary functions and duties as CEO are set forth in Exhibit A.

1.2 Full-Time Position. Executive accepts such employment and agrees to devote substantially all of his business time, energies and attention to the performance of his duties hereunder. Nothing herein shall be construed as preventing Executive from making and supervising personal investments, provided they will not interfere with the performance of Executive’s duties hereunder.

1.3 Location. The Company will maintain its principal executive offices within a thirty (30) mile radius of its current location in San Francisco, California. Executive shall undertake such occasional travel, within or outside the United States, as is reasonably necessary in the interests of the Company.

2. Term. The term of Executive’s employment hereunder shall commence on the Commencement Date and shall continue until two years (“Term”) unless terminated earlier as hereinafter provided in this Agreement, or unless extended by mutual written agreement of the Company and Executive. Unless the Company and Executive have otherwise agreed in writing, if Executive continues to work for the Company after the expiration of the Term, his employment thereafter shall be under the same terms and conditions provided for in this Agreement, except that his employment will be on an “at will” basis and the provisions of Sections 4.4 and 4.6(c) shall no longer be in effect.

Compensation and Benefits.

3.1 Salary. The Company shall pay to Executive a salary (“Base Salary”) at the annual rate of $225,000. Executive’s compensation shall be paid in equal, periodic installments in accordance with the Company’s normal payroll procedures. Specifically, Executive agrees that Company may deduct and withhold from his compensation hereunder the amounts required to be deducted and withheld under the provisions of the applicable Federal and state laws heretofore or hereafter enacted requiring the withholding of compensation.

3.2 Benefits. Executive shall be entitled to such medical, life, disability and other benefits as are generally afforded to other executives of the Company, subject to applicable waiting periods and other conditions.

3.3 Vacation. Executive shall be entitled to such paid vacation days in each year during the Term and to a reasonable number of other days off for religious and personal reasons in accordance with customary Company policy.

3.4 Expenses. The Company shall pay or reimburse Executive for all transportation, hotel and other expenses reasonably incurred by Executive on business trips and for all other ordinary and reasonable out-of-pocket expenses actually incurred by him in the conduct of the business of the Company against itemized vouchers submitted with respect to any such expenses and approved in accordance with customary procedures.

Termination.

4.1 Death. If Executive dies during the Term, Executive’s employment hereunder shall terminate and the Company shall pay to Executive’s estate the amount set forth in Section 4.6(a).

4.2 Disability. The Company, by written notice to Executive, may terminate Executive’s employment hereunder if Executive shall fail because of illness or incapacity to render services of the character contemplated by this Agreement for six (6) consecutive months. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(a).

4.3 By Company for “Cause”. The Company, by written notice to Executive, may terminate Executive’s employment hereunder for “Cause”. As used herein, “Cause” shall mean: (a) the refusal or failure by Executive to carry out specific directions of the Board which are of a material nature and consistent with his status as CEO (or whichever positions Executive holds at such time), or the refusal or failure by Executive to perform a material part of Executive’s duties hereunder; (b) the commission by Executive of a material breach of any of the provisions of this Agreement; (c) fraud or material dishonest action by Executive in his relations with the Company or any of its subsidiaries or affiliates (“dishonest” for these purposes shall mean Executive’s knowingly or recklessly making of a material misstatement or omission for his personal benefit); or (d) the conviction of Executive of a felony under federal or state law. Notwithstanding the foregoing, no “Cause” for termination shall be deemed to exist with respect to Executive’s acts described in clauses (a) or (b) above, unless the Company shall have given written notice to Executive within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Cause” with reasonable particularity and, within thirty (30) calendar days after such notice, Executive shall not have cured or eliminated the problem or thing giving rise to such “Cause”; provided, however, no more than two cure periods need be provided during any twelve-month period. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(b).

4.4 By Executive for “Good Reason”. The Executive, by written notice to the Company, may terminate Executive’s employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and material adverse change in the nature of Executive’s title, duties or responsibilities with the Company that represents a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”); (b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due, unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “Good Reason” with reasonable particularity and, within thirty calendar days after such notice, the Company shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c). “Change in Control” shall mean the acquisition, by any person or entity other than the Company and/or any officers or directors of the Company as of the date of this Agreement, of securities of the Company (in one or more transactions) having 50% or more of the total voting power of all the Company’s securities than outstanding.

4.5 By Company Without “Cause”. The Company may terminate Executive’s employment hereunder without “Cause” by giving at least thirty (30) days written notice to Executive. Upon such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c).

4.6 Compensation Upon Termination. In the event that Executive’s employment hereunder is terminated, the Company shall pay to Executive the following compensation:

(a) Payment Upon Death or Disability. In the event that Executive’s employment is terminated pursuant to Sections 4.1 or 4.2, the Company shall no longer be under any obligation to Executive or his legal representatives pursuant to this Agreement except for: (i) the Base Salary due Executive pursuant to Section 3.1 hereof through the date of termination; (ii) all valid expense reimbursements; and (iii) all accrued but unused vacation pay.

(b) Payment Upon Termination by the Company For “Cause”. In the event that the Company terminates Executive’s employment hereunder pursuant to Section 4.3, the Company shall have no further obligations to the Executive hereunder, except for: (i) the Base Salary due Executive pursuant to Section 3.1 hereof through the through the date of termination; (ii) all valid expense reimbursements; and (iii) all unused vacation pay through the date of termination required by law to be paid.

(c) Payment Upon Termination by Company or by Executive for Good Reason. In the event that Executive’s employment is terminated pursuant to Sections 4.4 or 4.5, the Company shall have no further obligations to Executive hereunder except for: (i) the Base Salary due Executive pursuant to Section 3.1 hereof through the end of the end of the current annual term (eg, a termination in month three of this contract would result in an additional nine months of payments, and a termination in month 15 of the agreement would also result in an additional nine months of payments) of the Agreement, payable in accordance with Section 3.1; (ii) all valid expense reimbursements; and (iii) all accrued but unused vacation pay.

(d) Executive shall have no duty to mitigate awards paid or payable to him pursuant to this Agreement, and any compensation paid or payable to Executive from sources other than the Company will not offset or terminate the Company’s obligation to pay to Executive the full amounts pursuant to this Agreement.

Protection of Confidential Information

5.1 Acknowledgment. Executive acknowledges that:

(a) As a result of his current and prior employment with the Company, Executive has obtained and will obtain secret and confidential information concerning the business of the Company and its subsidiaries (referred to collectively in this Section 5 as the “Company”), including, without limitation, financial information, proprietary rights, trade secrets and “know-how,” customers and sources (“Confidential Information”).

(b) The Company will suffer substantial damage which will be difficult to compute if, during the period of his employment with the Company or thereafter, Executive should divulge Confidential Information.

5.2 Confidentiality. Executive agrees that he will not at any time, during the Term or thereafter, divulge to any person or entity any Confidential Information obtained or learned by him as a result of his employment with the Company, except (i) in the course of performing his duties hereunder, (ii) with the Company’s prior written consent; (iii) to the extent that any such information is in the public domain other than as a result of Executive’s breach of any of his obligations hereunder; or (iv) where required to be disclosed by court order, subpoena or other government process. If Executive shall be required to make disclosure pursuant to the provisions of clause (iv) of the preceding sentence, Executive promptly, but in no event more than 48 hours after learning of such subpoena, court order, or other government process, shall notify, confirmed by mail, the Company and, at the Company’s expense, Executive shall: (a) take all reasonably necessary and lawful steps required by the Company to defend against the enforcement of such subpoena, court order or other government process, and (b) permit the Company to intervene and participate with counsel of its choice in any proceeding relating to the enforcement thereof.

5.3 Documents. Upon termination of his employment with the Company, Executive will promptly deliver to the Company all memoranda, notes, records, reports, manuals, drawings, blueprints and other documents (and all copies thereof) relating to the business of the Company and all property associated therewith, which he may then possess or have under his control; provided, however, that Executive shall be entitled to retain copies of such documents reasonably necessary to document his financial relationship with the Company.

5.4 Injunctive Relief. If Executive commits a breach, or threatens to commit a breach, of any of the provisions of Section 5.2, the Company shall have the right and remedy to seek to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed by Executive that the services being rendered hereunder to the Company are of a special, unique and extraordinary character and that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company. The rights and remedies enumerated in this Section 5.4 shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity. In connection with any legal action or proceeding arising out of or relating to this Agreement, the prevailing party in such action or proceeding shall be entitled to be reimbursed by the other party for the reasonable attorneys’ fees and costs incurred by the prevailing party.

5.5 Modification. If any provision of Section 5.2 is held to be unenforceable because of the scope, duration or area of its applicability, the tribunal making such determination shall have the power to modify such scope, duration, or area, or all of them, and such provision or provisions shall then be applicable in such modified form.

5.6 Survival. The provisions of this Section 5 shall survive the termination of this Agreement for any reason.

Miscellaneous Provisions.

6.1 Notices. All notices provided for in this Agreement shall be in writing, and shall be deemed to have been duly given when (i) delivered personally to the party to receive the same, or (ii) when mailed first class postage prepaid, by certified mail, return receipt requested, addressed to the party to receive the same at his or its address set forth below, or such other address as the party to receive the same shall have specified by written notice given in the manner provided for in this Section 6.1. All notices shall be deemed to have been given as of the date of personal delivery or mailing thereof.

If to Executive:

Craig dos Santos

509 Duboce Ave.

San Francisco, California 94117

If to the Company:

360 Ritch Street, Floor 3

San Francisco, California 94107

With a copy in either case to:

Greenberg Traurig, LLP

1900 University Ave., 5^th Floor

East Palo Alto, CA 94303

Attn: Todd Rumberger, Esq.

email: rumbergert@gtlaw.com

6.2 Entire Agreement; Waiver. This Agreement sets forth the entire agreement of the parties relating to the employment of Executive and is intended to supersede all prior negotiations, understandings and agreements. No provisions of this Agreement may be waived or changed except by a writing by the party against whom such waiver or change is sought to be enforced. The failure of any party to require performance of any provision hereof or thereof shall in no manner affect the right at a later time to enforce such provision.

6.3 Governing Law. All questions with respect to the construction of this Agreement, and the rights and obligations of the parties hereunder, shall be determined in accordance with the law of the State of California applicable to agreements made and to be performed entirely in California.

6.4 Binding Effect; Nonassignability. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Company. This Agreement shall not be assignable by Executive, but shall inure to the benefit of and be binding upon Executive’s heirs and legal representatives.

6.5 Severability. Should any provision of this Agreement become legally unenforceable, no other provision of this Agreement shall be affected, and this Agreement shall continue as if the Agreement had been executed absent the unenforceable provision.

6.6 Section 409A. This Agreement is intended to comply with the provisions of Section 409A of the Internal Revenue Code (“Section 409A”). To the extent that any payments and/or benefits provided hereunder are not considered compliant with Section 409A, the parties agree that the Company shall take all actions necessary to make such payments and/or benefits become compliant.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.

		ASCEND ACQUISITION CORP.

	By:	/s/ Jonathan J. Ledecky
		Name: Jonathan J. Ledecky
		Title: Chairman

		/s/ Craig dos Santos
		Craig dos Santos

EXHIBIT A

Duties: Craig dos Santos shall be responsible for the following duties and any other duties upon which Santos and the Company agree to in writing: (i) operate and manage the Company as CEO including but not limited to all aspects of day-to-day operations, (ii) recruiting (iii) leading game design and monetization and (iv) assistance with finance.

EX-10.13 12 v304722_ex10-13.htm EXHIBIT 10.13

ASCEND ACQUISITION CORP.

CONSULTING AGREEMENT

(Non-Technical Consultant)

This Consulting Agreement (this “Agreement”) is made and entered into as of February 29, 2012 (the “Effective Date”) by and between Ascend Acquisition Corp., a Delaware corporation (the “Company”), and Traction and Scale, LLC (“Consultant”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). For purposes of Article 2 (Confidentiality), Article 3 (Ownership), Section 4.B (Conflicting Obligations), Article 8 (Independent Contractor; Benefits), and Article 11 (Limitation of Liability), “Consultant” shall also include Richard Hecker, the Consultant’s principal and controlling member.

The Company desires to retain Consultant as an independent contractor to perform consulting services for the Company, and Consultant is willing to perform such services, on the terms described below. In consideration of the mutual promises contained herein, the Parties agree as follows:

1. Services and Compensation. Consultant shall perform, or cause its principal, Richard Hecker to perform, the services described in Exhibit A (the “Services”) for the Company (or its designee), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services.

2. Confidentiality

A. Definition of Confidential Information. “Confidential Information” means any non-public information (written, oral, electronic, or otherwise) that relates to the actual or anticipated business and/or products, research or development, trade secrets, know-how, product plans, customer information (including, but not limited to, information on customers of the Company whom Consultant called or with whom Consultant became acquainted during the term of this Agreement). Notwithstanding the foregoing, Confidential Information shall not include any such information which Consultant can establish (i) was publicly known or made generally available prior to the time of disclosure to Consultant; (ii) becomes publicly known or made generally available after disclosure to Consultant through no wrongful action or inaction of Consultant; or (iii) is in the rightful possession of Consultant, without confidentiality obligations, at the time of disclosure as shown by Consultant’s then-contemporaneous written records.

B. Nonuse and Nondisclosure. During and after the term of this Agreement, Consultant will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and Consultant will not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of the Services on behalf of the Company, or (ii) disclose the Confidential Information to any third party without the prior written consent of an authorized officer of Company. Consultant agrees that no ownership of Confidential Information is conveyed to the Consultant. Consultant agrees that Consultant’s obligations under this Section 2.B

shall continue after the termination of this Agreement.

C. Other Client Confidential Information. Consultant agrees that Consultant will not improperly use, disclose, or induce the Company to use any proprietary information or trade secrets of any former or concurrent employer of Consultant or other person or entity with which Consultant has an obligation to keep in confidence. Consultant also agrees that Consultant will not bring onto the Company’s premises or transfer onto the Company’s technology systems any unpublished document, proprietary information, or trade secrets belonging to any third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.

D. Third Party Confidential Information. Consultant recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that at all times during the term of this Agreement and thereafter, Consultant owes the Company and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to use it or to disclose it to any person, firm, corporation, or other third party except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party.

3. Ownership

A. Assignment of Property (Tangible and Intangible). Consultant agrees that all right, title, and interest in and to any copyrightable material, notes, and records, of any kind, along with any inventions or improvements conceived, discovered, authored, or invented by Consultant, solely or with others, during the term of this Agreement and arising directly out of, or directly related to performing the Services on behalf of the Company under this Agreement and any intellectual property rights relating to the foregoing (collectively, “Work Product”), are the sole property of the Company. Consultant also agrees to promptly make full written disclosure to the Company of any Work Product and to deliver and assign (or cause to be assigned) and hereby irrevocably assigns fully to the Company all right, title and interest in and to the Work Product.

B. Pre-Existing Materials. Subject to Section 3.A , Consultant agrees that if, in the course of performing the Services, Consultant incorporates into any Work Product or utilizes in the performance of the Services any pre-existing tangible or intangible property of Consultant (“Prior Inventions”), (i) Consultant will provide the Company with prior written notice and (ii) the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions, without restriction. Consultant will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any Work Product without Company’s prior written permission, including without limitation any free software or open source software.

C. Maintenance of Records. Consultant agrees to keep and maintain accurate written records of all Work Product made by Consultant (solely or jointly with others) during the term of this Agreement, and for a period of three (3) years thereafter. Such records are and remain the sole property of the Company at all times and upon Company’s request, Consultant shall deliver (or cause to be delivered) the same.

D. Further Assurances. Consultant agrees to assist Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in the Work Product in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments that the Company may deem necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to the Company, its successors, assigns and nominees the sole and exclusive right, title, and interest in and to all Work Product and testifying in a suit or other proceeding relating to such Work Product. Consultant further agrees that Consultant’s obligations under this Section 3.D shall continue after the termination of this Agreement.

E. Attorney-in-Fact. Consultant agrees that, if the Company is unable because of Consultant’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Consultant’s signature with respect to any Work Product, including, without limitation, for the purpose of applying for or pursuing any application for any United States or foreign patents or copyright registrations covering the Work Product assigned to the Company in Section 3.A , then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf to execute and file any papers and oaths and to do all other lawfully permitted acts with respect to such Work Product with the same legal force and effect as if executed by Consultant. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.

4. Conflicting Obligations

A. Consultant represents and warrants that Consultant has no agreements, relationships, or commitments to any other person or entity that conflict with the provisions of this Agreement, Consultant’s obligations to the Company under this Agreement, and/or Consultant’s ability to perform the Services. Consultant will not enter into any such conflicting agreement during the term of this Agreement.

B. Consultant shall have no right to subcontract the performance of any Services without the prior written permission of the Company.

5. Return of Company Materials. Upon the termination of this Agreement, or upon Company’s earlier request, Consultant will immediately deliver to the Company, and will not keep in Consultant’s possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Confidential Information, tangible embodiments of the Inventions, all devices and equipment belonging to the Company, all electronically-stored information and passwords to access such property, those records maintained pursuant to Section 3.C and any reproductions of any of the foregoing items that Consultant may have in Consultant’s possession or control.

6. Reports. Consultant agrees that Consultant will keep the Company advised as to Consultant’s progress in performing the Services under this Agreement. Consultant further agrees to prepare written reports with respect to such progress at such times as the Company and Consultant may mutually agree. The Company and Consultant agree that the reasonable time expended in preparing such written reports will be considered time devoted to the performance of the Services.

7. Term and Termination

A. Term. The term of this Agreement will begin on the Effective Date of this Agreement and will continue until the earlier of (i) the two year anniversary of the Effective Date (the “Term”) or (ii) termination as provided in Section 7.B. The parties may agree to extend the term by mutual written agreement of the Company and Consultant.

B. Termination. Either party may terminate this Agreement by written notice to the other party at any time during the last 60 days of the Term. Additionally, the Company may terminate this Agreement at any time during the Term for “cause” if Consultant (a) refuses to carry out the Services as deemed reasonable by both parties, (b) commits fraud or material dishonest action in his relations with the Company or any of its subsidiaries or affiliates (“dishonest” for these purposes shall mean Consultant’s knowingly or recklessly making of a material misstatement or omission for his personal benefit), (c) the commission by Consultant of a material breach of any of the provisions of this Agreement or (d) is convicted of a felony under federal or state law in conjunction with his relationship with the Company; provided, that notwithstanding the foregoing, no “cause” for termination shall be deemed to exist with respect to Consultant’s acts described in clauses (a) or (b) above, unless the Company shall have given written notice to Consultant within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “cause” with reasonable particularity and, within thirty (30) calendar days after such notice, Consultant shall not have cured or eliminated the problem or thing giving rise to such “cause;” provided, however, no more than two cure periods need be provided during any twelve-month period.

C. Survival. Upon any termination, all rights and duties of the Company and Consultant toward each other shall cease except:

(1) The Company will pay, within thirty (30) days after the effective date of termination, all amounts owing to Consultant for Services completed and accepted by the Company prior to the termination date and related reimbursable expenses, if any, submitted in accordance with the Company’s policies and in accordance with the provisions of Article 1 of this Agreement; provided that if this Agreement is terminated by the Company prior to the expiration of the Term without “cause” as provided in Article 7.B, the Company will pay Consultant all Service Compensation amounts owing and unpaid to Consultant through the end of the current annual term (eg, a termination in month three of this contract would result in an additional nine months of payments, and a termination in month 15 of the agreement would also result in an additional nine months of payments) of the Agreement with such amounts to be paid on a monthly basis in equal monthly amounts through the end of the such remaining annual period.

(2) Article 2 (Confidentiality), Article 3 (Ownership), Section 4.B (Conflicting Obligations), Article 5 (Return of Company Materials), Article 7 (Term and Termination), Article 8 (Independent Contractor; Benefits), Article 9 (Indemnification), Article 11 (Limitation of Liability), Article 12 (Arbitration and Equitable Relief), and Article 13 (Miscellaneous) will survive termination or expiration of this Agreement in accordance with their terms.

8. Independent Contractor; Benefits

A. Independent Contractor. It is the express intention of the Company and Consultant that Consultant perform the Services as an independent contractor to the Company. Nothing in this Agreement shall in any way be construed to constitute Consultant as an agent, employee, or representative of the Company. Without limiting the generality of the foregoing, Consultant is not authorized to bind the Company to any liability or obligation or to represent that Consultant has any such authority. Consultant agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement and shall incur all expenses associated with performance, except as expressly provided in Exhibit A. Consultant acknowledges and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.

B. Benefits. The Company and Consultant agree that Consultant will receive no Company-sponsored benefits from the Company where benefits include, but are not limited to, paid vacation, sick leave, medical insurance, and 401k participation. If Consultant is reclassified by a state or federal agency or court as the Company’s employee, Consultant will become a reclassified employee and will receive no benefits from the Company, except those mandated by state or federal law, even if by the terms of the Company’s benefit plans or programs of the Company in effect at the time of such reclassification, Consultant would otherwise be eligible for such benefits.

9. Indemnification. Consultant agrees to indemnify and hold harmless the Company and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Consultant or Consultant’s assistants, employees, contractors or agents, (ii) a determination by a court or agency that the Consultant is not an independent contractor, (iii) any breach by the Consultant or Consultant’s assistants, employees, contractors or agents of any of the covenants contained in this Agreement , (iv) any failure of Consultant to perform the Services in accordance with all applicable laws, rules and regulations, or (v) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use of the Work Product or other deliverables of Consultant under this Agreement. The Company agrees to indemnify and hold harmless the Consultant from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of the Company or the Company’s affiliates and their directors, officers and employees, (ii) any breach by the Company or its affiliates and their directors, officers and employees of any of the covenants contained in this Agreement, or (iii) any failure of the Company to perform its obligations under this Agreement and covered under the Company’s director and officer’s insurance policy.

10. [Intentionally Omitted].

11. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO CONSULTANT OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY COMPANY TO CONSULTANT UNDER THIS AGREEMENT FOR THE SERVICES, DELIVERABLES OR INVENTION GIVING RISE TO SUCH LIABILITY.

12. Arbitration and Equitable Relief.

A. Arbitration. Subject to the last two sentences of this Section 12.A, Consultant agrees that any and all controversies, claims or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the Company, in its capacity as such or otherwise) arising out of, relating to or resulting from Consultant’s performance of the Services under this Agreement or the termination of this Agreement, including any breach of this Agreement, shall be subject to binding arbitration under the Arbitration Rules set forth in AAA's Commercial Arbitration Rules, unless specifically modified herein.(the “Rules”) and pursuant to California law. CONSULTANT AGREES TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO, ALL DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT. Consultant understands that this Agreement to arbitrate also applies to any disputes that the Company may have with Consultant.

B. Procedure. Where arbitration is to occur pursuant to the provision of this Section 12, Consultant agrees that any arbitration will be administered by American Arbitration Association (“AAA”) or its successor. To the extent permitted by the AAA's rules, the arbitrator shall be required (a) to apply the Federal Rules of Evidence, and (b) render a decision strictly in accordance with the laws of the State of California. The parties covenant and agree that the arbitration shall commence within thirty (30) days of the date on which a written demand for arbitration is filed by any party hereto. In connection with the arbitration proceeding, the arbitrator shall have the power to order the production of documents by each party and any third-party witnesses. In connection with any arbitration, each party shall provide to the other, no later than seven (7) Business Days before the date of the arbitration, the identity of all Persons that may testify at the arbitration and a copy of all documents that may be introduced at the arbitration or considered or used by a party’s witness or expert. The arbitrator’s decision and award shall be made and delivered within ninety (90) days of the selection of the arbitrator. The arbitrator’s decision shall set forth a reasoned basis for any award of damages or finding of liability. The parties covenant and agree that they will participate in the arbitration in good faith and that they will share equally its costs, except as otherwise provided herein. The arbitrator may in his or her discretion assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party unsuccessfully refusing to comply with an order of the arbitrators shall be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. The provisions of this Section 12.B shall be enforceable in any court of competent jurisdiction.

C. Remedy. Except as provided by the Rules, arbitration will be the sole, exclusive and final remedy for any dispute between the Company and Consultant. Accordingly, except as provided for by the Rules, neither the Company nor Consultant will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted.

D. Availability of Injunctive Relief. In addition to the right under the Rules to petition the court for provisional relief, Consultant agrees that any Party may also petition the court for injunctive relief where either Party alleges or claims a violation of Section 2 (Confidentiality), Section 3 (Ownership) or Section 4 (Conflicting Obligations) of this Agreement or any other agreement regarding trade secrets or confidential information. In the event either the Company or Consultant seeks injunctive relief, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.

E. Administrative Relief. Consultant understands that this Agreement does not prohibit Consultant from pursuing an administrative claim with a local, state or federal administrative body. This Agreement does, however, preclude Consultant from pursuing court action regarding any such claim.

F. Voluntary Nature of Agreement. Consultant acknowledges and agrees that Consultant is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Consultant further acknowledges and agrees that Consultant has carefully read this Agreement and has asked any questions needed to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that Consultant is waiving its right to a jury trial. Finally, Consultant agrees that Consultant has been provided an opportunity to seek the advice of an attorney of its choice before signing this Agreement.

13. Miscellaneous

A. Governing Law; Consent to Personal Jurisdiction; Forum for Disputes. This Agreement shall be governed by the laws of the State of California, without regard to the conflicts of law provisions of any jurisdiction. Each of the parties hereto irrevocably and unconditionally consents to the exclusive jurisdiction of AAA to resolve all disputes, claims or controversies arising out of or relating to this Agreement or the negotiation, validity or performance hereof and further consents to the jurisdiction of the courts of California for the purposes of enforcing the arbitration provisions of Section 12 of this Agreement. Each party further irrevocably waives any objection to proceeding before AAA and the Courts, as applicable, based upon lack of personal jurisdiction or to the laying of venue and further irrevocably and unconditionally waives and agrees not to make a claim in any court that arbitration before AAA or the Courts, as applicable, has been brought in an inconvenient forum. Each of the parties hereto hereby consents to service of process by registered mail at the address to which notices are to be given. Each of the parties hereto agrees that its or his submission to jurisdiction and its or his consent to service of process by mail is made for the express benefit of the other parties hereto.

B. Assignability. This Agreement will be binding upon the parties’ successors and assigns. There are no intended third-party beneficiaries to this Agreement, except as expressly stated. Except as may otherwise be provided in this Agreement, Consultant may not sell, assign, or delegate any rights or obligations under this Agreement. Notwithstanding anything to the contrary herein, Company may assign this Agreement and its rights and obligations under this Agreement.

C. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between the Parties, including without limitation, that certain Employment Agreement by and between Richard Hecker and Andover Games, LLC, the Company’s wholly owned subsidiary, dated November 1, 2011. Consultant represents and warrants that she is not relying on any statement or representation not contained in this Agreement. To the extent any terms set forth in any exhibit or schedule conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed by the Parties in such exhibit or schedule.

D. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.

E. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.

F. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in a writing signed by the Parties. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.

G. Notices. Any notice or other communication required or permitted by this Agreement to be given to a Party shall be in writing and shall be deemed given (i) if delivered personally or by commercial messenger or courier service, (ii) when sent by confirmed facsimile, or (iii) if mailed by U.S. registered or certified mail (return receipt requested), to the Party at the Party’s address written below or at such other address as the Party may have previously specified by like notice. If by mail, delivery shall be deemed effective three business days after mailing in accordance with this Section 13.G

(1) If to the Company, to:

Ascend Acquisition Corp.

360 Ritch Street, Floor 3

San Francisco, California 94107

Attention: CEO

(2) If to Consultant, to the address for notice on the signature page to this Agreement or, if no such address is provided, to the last address of Consultant provided by Consultant to the Company.

H. Attorneys’ Fees. In any court action at law or equity that is brought by one of the Parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.

I. Signatures. This Agreement may be signed in two counterparts, each of which shall be deemed an original, with the same force and effectiveness as though executed in a single document.

(signature page follows)

IN WITNESS WHEREOF, the Parties hereto have executed this Consulting Agreement as of the date first written above.

CONSULTANT		ASCEND ACQUISITION CORP.

By:	/s/ Richard Hecker	By:	/s/ Craig dos Santos

Name:		Name:

Title:		Title:

Address for Notice:

EXHIBIT A

SERVICES AND COMPENSATION

1. Contact. Consultant’s principal Company contact:

Name: Craig dos Santos

Title: Chief Executive Officer

Email:

Phone:

2. Services. The services of Consultant (the “Services”) will include, but will not be limited to, the following:

The CEO of the Company and Consultant will mutually agree in writing on Services to be performed by Consultant.

3. Time Commitment. Consultant shall provide the Services to the Company as mutually agreed by the Consultant and Company; provided that unless otherwise agreed by the parties, Consultant shall provide Services at an average weekly rate of not less than ten hours per week. Consultant shall use his commercially reasonable efforts to provide the Services at times reasonably requested by the Company, Monday through Friday, excluding Company-observed holidays. The Company acknowledges that Consultant may from time to time have other clients and that, as a result of the needs of other clients and other personal or professional responsibilities, Consultant may have scheduling conflicts that will render him unavailable to provide the Services at certain times.

4. Compensation.

A. The Company will pay Consultant consulting fees in the amount of $150,000 per year, payable in equal bi-weekly installments of $5,769.23 (the “Service Compensation”). Consultant acknowledges and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.

B. The Company will reimburse Consultant, in accordance with Company policy, for all reasonable expenses incurred by Consultant in performing the Services pursuant to this Agreement.

C. Except as otherwise agreed to by both parties in writing, Consultant agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement, provided, however, Company may, in its discretion, make its equipment or facilities available to Consultant at Consultant’s request.

[Signature Page Follows]

This Exhibit A is made effective as of February 29, 2012.

CONSULTANT		ASCEND ACQUISITION CORP.

By:	/s/ Richard Hecker	By:	/s/ Craig dos Santos

Name:		Name:

Title:		Title:

Date:		Date:

EX-10.14 13 v304722_ex10-14.htm EXHIBIT 10.14

ASCEND ACQUISITION CORP.

CONSULTING AGREEMENT

(Non-Technical Consultant)

1. Services and Compensation. Consultant shall perform the services described in Exhibit A (the “Services”) for the Company (or its designee), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services.

2. Confidentiality

shall continue after the termination of this Agreement.

3. Ownership

B. Pre-Existing Materials. Subject to Section 3.A, Consultant agrees that if, in the course of performing the Services, Consultant incorporates into any Work Product or utilizes in the performance of the Services any pre-existing tangible or intangible property of Consultant (“Prior Inventions”), (i) Consultant will provide the Company with prior written notice and (ii) the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions, without restriction. Consultant will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any Work Product without Company’s prior written permission, including without limitation any free software or open source software.

E. Attorney-in-Fact. Consultant agrees that, if the Company is unable because of Consultant’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Consultant’s signature with respect to any Work Product, including, without limitation, for the purpose of applying for or pursuing any application for any United States or foreign patents or copyright registrations covering the Work Product assigned to the Company in Section 3.A, then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf to execute and file any papers and oaths and to do all other lawfully permitted acts with respect to such Work Product with the same legal force and effect as if executed by Consultant. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.

4. Conflicting Obligations

B. Consultant shall have no right to subcontract the performance of any Services without the prior written permission of the Company.

and any reproductions of any of the foregoing items that Consultant may have in Consultant’s possession or control.

7. Term and Termination

B. Termination. Either party may terminate this Agreement by written notice to the other party at any time during the last 60 days of the Term. Additionally the Company may terminate this Agreement at any time during the Term for “cause” if Consultant (a) refuses to carry out the Services as deemed reasonable by both parties, (b) commits fraud or material dishonest action in his relations with the Company or any of its subsidiaries or affiliates (“dishonest” for these purposes shall mean Consultant’s knowingly or recklessly making of a material misstatement or omission for his personal benefit), (c) the commission by Consultant of a material breach of any of the provisions of this Agreement or (d) is convicted of a felony under federal or state law in conjunction with his relationship with the Company; provided, that notwithstanding the foregoing, no “cause” for termination shall be deemed to exist with respect to Consultant’s acts described in clauses (a) or (b) above, unless the Company shall have given written notice to Consultant within a period not to exceed ten (10) calendar days of the initial existence of the occurrence, specifying the “cause” with reasonable particularity and, within thirty (30) calendar days after such notice, Consultant shall not have cured or eliminated the problem or thing giving rise to such “cause;” provided, however, no more than two cure periods need be provided during any twelve-month period.

C. Survival. Upon any termination, all rights and duties of the Company and Consultant toward each other shall cease except:

(2) Article 2 (Confidentiality), Article 3 (Ownership), Section 4.B (Conflicting Obligations), Article 5 (Return of Company Materials), Article 7 (Term and Termination), Article 8 (Independent Contractor; Benefits), Article 9 (Indemnification), Article 10 (Nonsolicitation), Article 11 (Limitation of Liability), Article 12 (Arbitration and Equitable Relief), and Article 13 (Miscellaneous) will survive termination or expiration of this Agreement in accordance with their terms.

8. Independent Contractor; Benefits

10. Nonsolicitation. To the fullest extent permitted under applicable law, from the date of this Agreement until twelve (12) months after the termination of this Agreement for any reason (the “Restricted Period”), Consultant will not, without the Company’s prior written consent, directly or indirectly, solicit any of the Company’s employees to leave their employment, or attempt to solicit employees of the Company, either for Consultant or for any other person or entity. Consultant agrees that nothing in this Article 10 shall affect Consultant’s continuing obligations under this Agreement during and after this twelve (12) month period, including, without limitation, Consultant’s obligations under Article 2.

12. Arbitration and Equitable Relief.

13. Miscellaneous

C. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between the Parties. Consultant represents and warrants that she is not relying on any statement or representation not contained in this Agreement. To the extent any terms set forth in any exhibit or schedule conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed by the Parties in such exhibit or schedule.

D. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.

(1) If to the Company, to:

Ascend Acquisition Corp.

360 Ritch Street, Floor 3

San Francisco, California 94107

Attention: CEO

(2) If to Consultant, to the address for notice on the signature page to this Agreement or, if no such address is provided, to the last address of Consultant provided by Consultant to the Company.

I. Signatures. This Agreement may be signed in two counterparts, each of which shall be deemed an original, with the same force and effectiveness as though executed in a single document.

(signature page follows)

IN WITNESS WHEREOF, the Parties hereto have executed this Consulting Agreement as of the date first written above.

CONSULTANT		ASCEND ACQUISITION CORP.

By:	/s/ Jonathan J. Ledecky	By:	/s/ Craig dos Santos

Name:		Name:

Title:		Title:

Address for Notice:

EXHIBIT A

SERVICES AND COMPENSATION

1. Contact. Consultant’s principal Company contact:

Name: Craig dos Santos

Title: Chief Executive Officer

Email:

Phone:

2. Services. The services of Consultant (the “Services”) will include, but will not be limited to, the following:

Consultant will serve as the Chairman of the Board and Interim Chief Financial Officer. The CEO of the Company and Consultant may mutually agree in writing on other Services to be performed by Consultant. The Consultant may be removed from these positions at any time and for any reason or no reason at all by the Company, and such removal shall not constitute a breach by the Company of the Consulting Agreement to which this Exhibit A is attached.

4. Compensation.

A. The Company will pay Consultant consulting fees in the amount of $150,000 per year, payable in equal bi-weekly installments of $5,769.23. Consultant acknowledges and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.

B. The Company will reimburse Consultant, in accordance with Company policy, for all reasonable expenses incurred by Consultant in performing the Services pursuant to this Agreement.

[Signature Page Follows]

This Exhibit A is made effective as of February 29, 2012.

CONSULTANT		ASCEND ACQUISITION CORP.

By:	/s/ Jonathan J. Ledecky	By:	/s/ Craig dos Santos

Name:		Name:

Title:		Title:

Date:		Date:

EX-10.25 14 v304722_ex10-25.htm EXHIBIT 10.25

ASCEND ACQUISITION CORP.

Subscription Agreement

INTRODUCTION

Ascend Acquisition Corp. (the “Company”) is a blank check company seeking to acquire a business or company or engage in another opportunity for its and its shareholders’ benefit. On December 30, 2011, the Company entered into a Merger Agreement and Plan of Reorganization (“Merger Agreement”) with Ascend Merger Sub, LLC, Andover Games, LLC (“Andover Games”) and the members of Andover Games. Upon the consummation of the transactions contemplated by the Merger Agreement, Andover Games will become a wholly-owned subsidiary of the Company. Pursuant to the Merger Agreement, the Company is obligated to use its commercial best efforts to raise at least $4 million of equity capital through the sale of the Company’s capital stock, of which at least $2 million must be raised simultaneously with the closing of the merger (although all may be raised simultaneously with the closing of the merger) and up to an additional $2 million may be raised within 30 days thereafter. The Company raising the first $2 million is a condition to closing the merger.

INSTRUCTIONS

IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING. SIGNIFICANT OBLIGATIONS AND REPRESENTATIONS ARE CONTAINED IN THIS DOCUMENT.

Steps For All Investors

Fill in your name and subscription amount on Page 3.

Additional Steps for Individual Investors

Complete the requested information on Page 9.

Sign Page 11.

Additional Steps for Entity Investors

Complete the requested information on Page 10.

Sign Page 11.

If applicable, complete the information on Page 12 and please sign as indicated thereon.

PLEASE DELIVER TWO EXECUTED COPIES OF THE SUBSCRIPTION AGREEMENT TO:

ASCEND ACQUISITION CORP.

c/o Graubard Miller

405 Lexington Avenue

New York, New York 10174

Attention: Jeffrey M. Gallant, Esq.

Telephone: 212-818-8638

Facsimile: 212-818-8881

THE SUBSCRIPTION PAYMENT MUST BE WIRED AS FOLLOWS:

When you wire your funds, please notify Jeffrey M. Gallant at 212-818-8638. Any questions you may have concerning these documents or the payment of your subscription amount should be directed to Jeffrey M. Gallant.

Print Name of Investor:_________________________

SUBSCRIPTION AGREEMENT

This Subscription Agreement (“Subscription Agreement”) is being used by Ascend Acquisition Corp., a Delaware corporation (the “Company”), for a private placement (the “Offering”) of shares of common stock, par value $0.0001 per share (the “Shares”) on the terms contained in this Subscription Agreement.

The above-named Investor hereby agrees as follows:

1. Subscription for Securities. Investor hereby subscribes for and agrees to purchase $_________ of Shares of the Company at a purchase price of $0.50 per share, subject to the terms and conditions set forth in this Subscription Agreement.

2. Offering and Offering Period. The Shares are being offered in a private placement in accordance with the terms set forth in this Subscription Agreement. The Company is offering the Shares until the earlier of (i) the date by which the maximum amount of Shares being offered have been sold or (ii) 30 days after the consummation by the Company of the transactions contemplated by that certain Merger Agreement and Plan of Reorganization, dated as of December 30, 2011 (“Merger Agreement”), by and among the Company, Ascend Merger Sub, LLC, Andover Games, LLC and the members of Andover Games, LLC, unless such latter date is extended, without notice to the Investor, by the Company in its sole discretion (such earlier date being referred to herein as the “Termination Date”).

3. Investor Delivery of Documents and Payment. Investor has tendered to the Company two (2) completed and manually executed copies of this Subscription Agreement. Simultaneously with submitting this Subscription Agreement, the Investor is wiring the subscription amount in accordance with the directions on the cover sheet.

4. Closing and Delivery of Securities. The offering is being made on a “best efforts, $2,000,000 minimum, $4,000,000 maximum” basis, provided that the Company may increase the maximum amount at any time prior to the Termination Date in its sole discretion without notice to the Investor. The initial closing (“Initial Closing”) will occur simultaneously with the consummation of the transactions contemplated by the Merger Agreement, provided that Investors have subscribed for the minimum of $2,000,000 of Shares. Accordingly, there will be no closing if either the minimum number of Shares is not subscribed for or the transactions contemplated by the Merger Agreement are not consummated. The Company’s officers, directors and affiliates shall be entitled to purchase Shares in the Offering on the same terms as other Investors. Accordingly, any such purchases will be credited toward reaching the $2,000,000 minimum amount required to have an Initial Closing. Subsequent closings with respect to the sale of additional Shares up until the maximum amount has been reached may take place at any time with respect to subscriptions accepted by the Termination Date (each such closing, together with the Initial Closing, being referred to as the “Closing”). In the event Investor’s subscription is accepted and there is a Closing, Investor’s payment will be released to the Company and the certificates representing the Shares will be delivered promptly to Investor along with a fully executed version of this Agreement.

5. Acceptance or Rejection of Subscription; Return of Unapplied Funds. The Company has the right to reject this subscription, in whole or in part, for any reason and at any time prior to a Closing. In the event of the rejection of this subscription, my subscription payment will be promptly returned to me without interest or deduction and this Subscription Agreement shall have no force or effect. The Shares subscribed for herein will not be deemed issued to or owned by the Investor until one copy of this Subscription Agreement has been executed by the Investor and countersigned by the Company and the Closing (defined below) with respect to the Investor’s subscription has occurred.

6. Offering to Accredited Investors. The Offering is limited to “accredited investors” as defined in Section 2(15) of the Securities Act of 1933, as amended (“Securities Act”), and Rule 501(a) promulgated thereunder, and is being made without registration under the Securities Act in reliance upon the exemptions contained in Section 4(2) of the Securities Act and applicable state securities laws; it being understood that for purposes of the qualifying under the $1,000,000 net worth test:

The Investor’s primary residence shall not be included as an asset;

Indebtedness that is secured by the Investor’s primary residence, up to the estimated fair market value of the primary residence as of the date of this Agreement, shall not be included as a liability (except that if the amount of such indebtedness outstanding as of such date exceeds the amount outstanding 60 days before such date, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and

Indebtedness that is secured by the Investor’s primary residence in excess of the estimated fair market value of the primary residence shall be included as a liability.

7. Investor Representations and Warranties.

7.1. Accredited Investor Status. Investor is an accredited investor within the meaning of Section 2(15) of the Securities Act and Rule 501 promulgated thereunder.

7.2. No Right to Terminate. Investor is aware that Investor is not entitled to cancel, terminate or revoke this subscription, and any agreements made in connection herewith will survive an individual Investor’s death or disability. In order to induce the Company to issue and sell Shares to Investor, Investor represents and warrants that the information relating to Investor stated herein is true and complete as of the date hereof and will be true and complete as of the date or dates on which Investor’s purchase of Shares becomes effective. If, prior to the final consummation of the offer and sale of the Shares, there should be any change in such information or any of such information becomes incorrect or incomplete, Investor agrees to notify the Company and supply the Company promptly with corrective information.

7.3. Information About the Company and the Shares.

(a) The Company has made available to Investor a copy of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010, the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2011, June 30, 2011 and September 30, 2011, the Company’s Current Report on Form 8-K dated December 30, 2011 and the Company’s Schedule 14F-1 dated February 14, 2012 and the unaudited financial statements of Andover Games as of and for the fiscal years ended December 31, 2011 and 2010 (together the “Disclosure Documents”). Investor has read the Disclosure Documents, including the “Risk Factors” set forth in the Form 10-K, together with this Subscription Agreement, and fully understands the information set forth therein and herein. Investor further understands the following risks relating to the business of Andover Games and the merger:

Andover Games operates in a new and rapidly changing industry, which makes it difficult to evaluate its business and prospects;

Andover Games began operations in 2011, and it has a short operating history and a new business model, which makes it difficult to effectively assess its future prospects;

Andover Games currently has no revenue and expects a small number of games to generate a majority of its revenue, and it must continue to launch and enhance games that attract and retain a significant number of paying players in order to grow its revenue and sustain its competitive position;

Andover Games may not be able to maintain a good relationship with companies like Apple and Facebook that are vital to its business model;

Andover Games will rely on a small percentage of its players for nearly all of its revenue;

A significant majority of Andover Games’ game traffic is expected to be hosted by a single vendor, and any failure or significant interruption in its network could impact its operations and harm its business;

Security breaches, computer viruses and computer hacking attacks could harm Andover Games’ business and results of operations;

If Andover Games fails to effectively manage its growth, its business and operating results could be harmed;

Andover Games’ growth prospects will suffer if it is unable to develop successful games for mobile platforms;

Andover Games will face additional business, political, regulatory, operational, financial and economic risks as it expands into international markets; and

Andover Games’ audited financial statements for the fiscal year ended December 31, 2011 may be materially different than what is anticipated; and

Investor has been given access to full and complete information regarding the Company and Andover Games as Investor has requested and has utilized such access to Investor’s satisfaction for the purpose of verifying the information included herein and therein, and Investor has either met with or been given reasonable opportunity to meet with the officers of the Company and Andover Games for the purpose of asking reasonable questions of such officers concerning the terms and conditions of the Offering and the business of the Company and Andover Games and all such questions have been answered to Investor’s full satisfaction. Investor has also been given an opportunity to obtain any additional relevant information to the extent reasonably available to the Company. After reading of such information and materials, Investor understands that there is no assurance as to the future performance of the Company and the Shares.

(b) Investor has received no representation or warranty from the Company or any of its officers, directors, equity holders, employees or agents in respect of Investor’s investment in the Shares. Investor is not participating in the Offering as a result of or subsequent to: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

7.4. Speculative Investment. Investor is aware that the Shares are a speculative investment that involve a high degree of risk and Investor may suffer the total loss of its investment. Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares and have obtained, in Investor’s judgment, sufficient information to evaluate the merits and risks of an investment in the Shares. Investor has not utilized any person as its purchaser representative (as defined in Regulation D) in connection with evaluating such merits and risks and has relied solely upon its own investigation in making a decision to invest in the Shares. Investor has been urged to seek independent advice from its professional advisors relating to the suitability of an investment in the Shares in view of its overall financial needs and with respect to the legal and tax implications of such investment. Investor believes that the investment in the Shares is suitable for it based upon its investment objectives and financial needs, and Investor has adequate means for providing for its current financial needs and contingencies and has no need for liquidity with respect to its investment in the Shares. The investment in the Shares does not constitute a significant portion of Investor’s investment portfolio.

7.5. Restrictions on Transfer; Registration Right.

(a) Investor understands that (i) the Shares have not been registered under the Securities Act or the securities laws of certain states in reliance on specific exemptions from registration and (ii) the Shares cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under applicable securities laws of certain states, or an exemption from such registration is available. Each certificate representing the Shares will bear a restrictive legend relating to such restrictions. In addition, Investor understands that (x) no securities administrator of any state or the federal government has recommended or endorsed the Offering or made any finding or determination relating to the fairness of an investment in the Shares and (y) the Company is relying on Investor’s representations and agreements for the purpose of determining whether this transaction meets the requirements of the exemptions afforded by the Securities Act and certain state securities laws.

(b) Within 10 business days of the consummation by the Company of the transactions contemplated by the Merger Agreement, it shall file a registration statement (“Registration Statement”) with the Securities and Exchange Commission covering the resale by Investor of the Shares it is purchasing hereunder, use its best efforts to have such Registration Statement declared effective as promptly as practicable thereafter, and keep the Registration Statement effective until (i) the date on which the Shares may be resold by the Investor without registration under the Securities Act and without regard to any volume limitations by reason of Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the shares have been sold pursuant to the Registration Statement or Rule 144 under the Securities Act or any other rule of similar effect. Investor understands, however, that notwithstanding this obligation on the part of the Company to register the resale of the Shares and to keep the Registration Statement effective, there is no assurance that the Company will be able to have the Registration Statement declared effective and keep the Registration Statement effective until Investor has sold all the Shares owned by it registered thereon. The Company’s obligation to register the Investor’s Shares pursuant to the Registration Statement shall be subject to the Investor’s delivery to the Company of such information regarding the Investor, the securities of the Company held by such Investor, and the intended method of disposition of the Shares as reasonably required by the Company to effect the registration of such Investor’s Shares.

7.6. Investment Representation. Investor is purchasing the Shares for its own account for investment and not with a view to, or for sale in connection with, any subsequent distribution of the securities, nor with any present intention of selling or otherwise disposing of all or any part of the Shares in violation of the Federal securities laws. Investor understands that, although there is a public market for the Shares, there is no assurance that such market will continue in the future.

7.7. Entity Authority. If Investor is a corporation, partnership, company, trust, employee benefit plan, individual retirement account, Keogh plan or other tax-exempt entity, it is authorized and qualified to become an investor in the Shares and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.

7.8. For Florida Residents. The Shares have not been registered under the Securities Act, or the Florida Securities and Investor Protection Act (“Florida Securities Act”), by reason of specific exemptions thereunder relating to the limited availability of the offering. The Shares cannot be sold, transferred or otherwise disposed of to any person or entity unless subsequently registered under the Securities Act or the Florida Securities Act, if such registration is required. Pursuant to Section 517.061(11) of the Florida Securities Act, when sales are made to five (5) or more persons in Florida, any sale made pursuant to Subsection 517.061(11) of the Florida Securities Act will be voidable by such Florida purchaser either within three (3) days after the first tender of consideration is made by the purchaser to the issuer, an agent of the issuer, or an escrow agent, or within three (3) days after the availability of the privilege is communicated to such purchaser, whichever occurs later. In addition, as required by Section 517.061(11)(a)(3) of the Florida Securities Act and by Rule 69W-500.005(5)(a) thereunder, if Investor is a Florida resident Investor may have, at the offices of the Company, at any reasonable hour, after reasonable notice, access to the materials set forth in such Rule that the Company can obtain without unreasonable effort or expense.

8. Indemnification. Investor hereby agrees to indemnify and hold harmless the Company, its officers, directors, shareholders, employees, agents and attorneys against any and all losses, claims, demands, liabilities, and expenses (including reasonable legal or other expenses incurred by each such person in connection with defending or investigating any such claims or liabilities, whether or not resulting in any liability to such person or whether incurred by the indemnified party in any action or proceeding between the indemnitor and indemnified party or between the indemnified party and any third party) to which any such indemnified party may become subject, insofar as such losses, claims, demands, liabilities and expenses (a) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact made by Investor and contained herein or (b) arise out of or are based upon any breach by Investor of any representation, warranty or agreement made by Investor contained herein

9. Severability; Remedies. In the event any part or parts of this Subscription Agreement are found to be void, the remaining provisions of this Subscription Agreement are nevertheless binding with the same effect as though the void part or parts were deleted.

10. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.

11. Counterparts. This Subscription Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. The execution of this Subscription Agreement may be by actual or facsimile signature.

12. Benefit. Except as otherwise set forth herein, this Subscription Agreement is binding upon and inures to the benefit of the parties hereto and their respective heirs, executors, personal representatives, successors and assigns.

13. Notices. All notices, offers, acceptance and any other acts under this Subscription Agreement (except payment) must be in writing, and is sufficiently given if delivered to the addressees in person, by overnight courier service, facsimile, electronic transmission (including via email) or, if mailed, postage prepaid, by certified mail (return receipt requested), and will be effective three days after being placed in the mail if mailed, or upon receipt or refusal of receipt, if delivered personally or by courier or confirmed telecopy or other electronic transmission (including via email), in each case addressed to a party. All communications to Investor should be sent to Investor’s address on the signature page hereto. All future communications to the Company should be sent to:

ASCEND ACQUISITION CORP.

970 West Broadway, PMB 402

Jackson, WY 83002

Attention: Jonathan J. Ledecky

Telephone: 307-734-2645

Email: jledecky@aol.com

14. Oral Evidence. This Subscription Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements between the parties hereto with respect to the subject matter hereof. This Subscription Agreement may not be changed, waived, discharged, or terminated orally, but rather, only by a statement in writing signed by the party or parties against which enforcement or the change, waiver, discharge or termination is sought.

15. Paragraph Headings. Paragraph headings herein have been inserted for reference only and will not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or in part, any of the terms or provisions of this Subscription Agreement.

16. Survival of Representations, Warranties and Agreements. The representations, warranties and agreements contained herein will survive the delivery of, and the payment for, the Shares.

[SIGNATURE PAGES FOLLOW]

INDIVIDUAL and JOINT INVESTORS – Complete All Information

Additional information may be requested

Investor’s Name:

Date of Birth:

SSN/Tax ID:

Co-Investor Name:

Date of Birth:

SSN/Tax ID:

Home Street Address:

City:

State:_________

Zip Code:____________

Mailing Street Address:

City:

State:_________

Zip Code:____________

Work Phone:

Home Phone:

E-Mail Address:

ENTITY INFORMATION – Complete All Information

Entity Name:

Tax ID:

State of Formation:

Company Street Address:

City:

State:

_________

Zip Code:__________________

Primary Contact:

Title:

Telephone Number:

Fax Number:

Email Address:

SIGNATURE PAGE

I/We am(are) affirming that all the information contained herein is true and correct to the best of my/our knowledge and belief, including the attached schedule. If I am signing on behalf of an entity or trust I represent I have the authority to make investment decisions for the entity. I also understand that a background/credit check maybe conducted for the purposes of detecting and deterring money laundering.


Signature		Date


Print Name


Title (if applicable)


Signature		Date


Print Name


Title (if applicable)

The foregoing subscription is accepted and the Company hereby agrees to be bound by its terms.

ASCEND ACQUISITION CORP.


Name	Title:


Date

Additional Information

Trusts (Complete for all Trustees and Person who have Contributed Assets):


Name

Please check the appropriate box:

¨ Trustee ¨ Contributed Assets


Name

Please check the appropriate box:

¨ Trustee ¨ Contributed Assets


Name

Please check the appropriate box:

¨ Trustee ¨ Contributed Assets

EX-10.26 15 v304722_ex10-26.htm EXHIBIT 10.26

INDEMNIFICATION AGREEMENT

This Agreement, made and entered into as of the 29^th day of February, 2012 (“Agreement”), by and between Ascend Acquisition Corp., a Delaware corporation (“Corporation”), and __________ (“Indemnitee”):

WHEREAS, highly competent persons recently have become more reluctant to serve as directors, officers, or in other capacities of publicly held corporations and other corporations that have non-employee investors among their stockholders or conduct operations in regulated industries unless they are provided with better protection from the risk of claims and actions against them arising out of their services to and activities on behalf of such corporation; and

WHEREAS, the adoption of The Sarbanes - Oxley Act of 2002 and other laws, rules and regulations being promulgated have increased the potential for liability of officers and directors; and

WHEREAS, the Corporation has determined that the inability to attract and retain such persons is detrimental to the best interests of the Corporation’s stockholders and that such persons should be assured that they will have better protection in the future; and

WHEREAS, it is reasonable, prudent and necessary for the Corporation to obligate itself contractually to indemnify such persons to the fullest extent permitted by applicable law so that such persons will serve or continue to serve the Corporation free from undue concern that they will not be adequately indemnified; and

WHEREAS, this Agreement is a supplement to and in furtherance of the Certificate of Incorporation and Bylaws of the Corporation, and any resolutions adopted pursuant thereto and shall neither be deemed to be a substitute therefor nor diminish or abrogate any rights of Indemnitee thereunder; and

WHEREAS, Indemnitee is willing to continue to serve and to take on additional service for or on behalf of the Corporation on the condition that he or she be indemnified according to the terms of this Agreement;

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Corporation and Indemnitee do hereby covenant and agree as follows:

1. Definitions. For purposes of this Agreement:

1.1 “Change in Control” means a change in control of the Corporation occurring after the date hereof of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended (“Act”), whether or not the Corporation is then subject to such reporting requirement provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if after the date hereof (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act), other than a person who is an officer or director of the Corporation on February 29, 2012 (and any of such person’s affiliates), is or becomes “beneficial owner” (as defined in Rule 13d-3 under the Act) directly or indirectly, of securities of the Corporation representing 50% or more of the combined voting power of the then outstanding securities of the Corporation without the prior approval of at least two-thirds of the members of the Board in office immediately prior to such person attaining such percentage interest; (ii) the Corporation is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which members of the Board of Directors (“Board”) in office immediately prior to such transaction or event constitute less than a majority of the Board thereafter; or (iii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board (including for this purpose any new director whose election or nomination for election by the Corporation’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board.

1.2 “Corporate Status” means the status of a person who is or was a director, officer, employee, agent or fiduciary of the Corporation or of any subsidiary of the Corporation or any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request of the Corporation.

1.3 “Disinterested Director” means a director of the Corporation who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

1.4 “Expenses” means all reasonable attorneys’ fees, retainers, court costs (including trial and appeals), transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, appealing, preparing to appeal, investigating, or being or preparing to be a witness in a Proceeding.

1.5 “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Corporation or Indemnitee in any other matter material to either such party, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. Except as provided in the first sentence of Section 9.3 hereof, Independent Counsel shall be selected by (a) the Disinterested Directors or (b) a committee of the Board consisting of two or more Disinterested Directors or if (a) and (b) above are not possible, then by a majority of the full Board.

1.6 “Proceeding” means any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative, except one initiated by an Indemnitee pursuant to Section 11 of this Agreement to enforce his rights under this Agreement.

2. Services by Indemnitee.

Indemnitee agrees to continue to serve as a director, officer or employee of the Corporation or one or more of its subsidiaries. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law).

3. Indemnification - General.

The Corporation shall indemnify, and advance Expenses to, Indemnitee as provided in this Agreement to the fullest extent permitted by applicable law in effect on the date hereof and to such greater extent as applicable law may thereafter from time to time permit. The rights of Indemnitee provided under the preceding sentence shall include, but not be limited to, the rights set forth in the other Sections of this Agreement.

4. Proceedings Other Than Proceedings by or in the Right of the Corporation.

Indemnitee shall be entitled to the rights of indemnification provided in this Section if, by reason of his Corporate Status, he was or is threatened to be made, a party to any threatened, pending or completed Proceeding, other than a Proceeding by or in the right of the Corporation. Pursuant to this Section, Indemnitee shall be indemnified against Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with any such Proceeding or any claim, issue or matter therein, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal Proceeding, had no reasonable cause to believe his conduct was unlawful.

5. Proceedings by or in the Right of the Corporation.

Indemnitee shall be entitled to the rights of indemnification provided in this Section if, by reason of his Corporate Status, he is, was or is threatened to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against Expenses and amounts paid in settlement (such settlement amounts not to exceed, in the judgment of the Board, the estimated expense of litigating the Proceeding to conclusion) actually and reasonably incurred by him or on his behalf in connection with any such Proceeding if he or she acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against such Expenses or amounts paid in settlement shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee has been adjudged to be liable to the Corporation if applicable law prohibits such indemnification unless the court in which such Proceeding shall have been brought, was brought or is pending, shall determine that indemnification against Expenses or amounts paid in settlement may nevertheless be made by the Corporation.

6. Indemnification for Expenses of Party Who is Wholly or Partly Successful.

Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he or she shall be indemnified against all Expenses (and, when eligible hereunder, amounts paid in settlement) actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Corporation shall indemnify Indemnitee against all Expenses (and, when eligible hereunder, amounts paid in settlement) actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section, the term “successful, on the merits or otherwise,” includes, but is not limited to, (i) any termination, withdrawal, or dismissal (with or without prejudice) of any Proceeding against the Indemnitee without any express finding of liability or guilt against him, and (ii) the expiration of 90 days after the making of any claim or threat of a Proceeding without the institution of the same and without any promise or payment made to induce a settlement.

7. Indemnification for Expenses as a Witness.

Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him on his behalf in connection therewith.

8. Advancement of Expenses and Other Amounts.

The Corporation shall advance all Expenses, judgments, penalties, fines and, when eligible hereunder, amounts paid in settlement, incurred by or on behalf of Indemnitee in connection with any Proceeding within thirty (30) days after the receipt by the Corporation of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses, judgments, penalties, fines and amounts paid in settlement, incurred by Indemnitee and shall include or be preceded or accompanied by an agreement by or on behalf of Indemnitee to repay any Expenses, judgments, penalties, fines and amounts paid in settlement advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses, judgments, penalties, fines and, when eligible hereunder, amounts paid in settlement.

9. Procedure for Determination of Entitlement to Indemnification.

9.1 To obtain indemnification under this Agreement in connection with any Proceeding, and for the duration thereof, Indemnitee shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Corporation shall, promptly upon receipt of any such request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.

9.2 Upon written request by Indemnitee for indemnification pursuant to Section 9.1 hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in such case: (i) if a Change in Control shall have occurred, by Independent Counsel (unless Indemnitee shall request that such determination be made by the Board or the stockholders, in which case in the manner provided for in clauses (ii) or (iii) of this Section 9.2) in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of a quorum consisting of Disinterested Directors, or (B) if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority of a committee of the Board consisting of two or more Disinterested Directors, or (C) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) by the stockholders of the Corporation, by a majority vote of a quorum consisting of stockholders who are not parties to the proceeding, or if no such quorum is obtainable, by a majority vote of stockholders who are not parties to such proceeding; or (iii) as provided in Section 10.2 of this Agreement. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Corporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

9.3 If a Change of Control shall have occurred, Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Corporation advising it of the identity of Independent Counsel so selected. In either event, Indemnitee or the Corporation, as the case may be, may, within seven days after such written notice of selection shall have been given, deliver to the Corporation or to Indemnitee, as the case may be, a written objection to such selection. Such objection may be asserted only on the ground that Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, Independent Counsel so selected may not serve as Independent Counsel unless and until a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 9.1 hereof, no Independent Counsel shall have been selected and not objected to, either the Corporation or Indemnitee may petition the Court of Chancery of the State of Delaware or other court of competent jurisdiction, for resolution of any objection which has been made by the Corporation or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person with respect to whom an objection is so resolved or the person so appointed shall act as Independent Counsel under Section 9.2 hereof. The Corporation shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with its actions pursuant to this Agreement, and the Corporation shall pay all reasonable fees and expenses incident to the procedures of this Section 9.3, regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement date of any judicial proceeding pursuant to Section 11.1(iii) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

10. Presumptions and Effects of Certain Proceedings.

10.1 In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9.1 of this Agreement, and the Corporation shall have the burden of proof to overcome that presumption by clear and convincing evidence in connection with the making by any person, persons or entity of any determination contrary to that presumption.

10.2 If the person, persons or entity empowered or selected under Section 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) prohibition of such indemnification under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith require(s) such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, however, that the foregoing provisions of this Section 10.2 shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 9.2 of this Agreement and if (A) within 15 days after receipt by the Corporation of the request for such determination the Board has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 9.2 of this Agreement. In connection with each meeting at which a stockholder determination will be made, the Corporation shall solicit proxies that expressly include a proposal to indemnify or reimburse the Indemnitee. The Corporation shall afford the Indemnitee ample opportunity to present evidence of the facts upon which the Indemnitee relies for indemnification in any Corporation proxy statement relating to such shareholder determination. Subject to the fiduciary duties of its members under applicable law, the Board will not recommend against indemnification or reimbursement in any proxy statement relating to the proposal to indemnify or reimburse the Indemnitee.

10.3 The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

10.4 Reliance as Safe Harbor. For purposes of this Agreement, the Indemnitee shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on (i) the records or books of account of the Corporation, or another enterprise, including financial statements, (ii) information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, (iii) the advice of legal counsel for the Corporation or another enterprise, or of an independent certified public accountant or an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which the Indemnitee is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent. The provisions of this Section shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth herein. Whether or not the foregoing provisions of this Section 10.4 are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

11. Remedies of Indemnitee.

11.1 In the event that (i) a determination is made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (iii) the determination of indemnification is to be made by Independent Counsel pursuant to Section 9.2 of this Agreement and such determination shall not have been made and delivered in a written opinion within 30 days after receipt by the Corporation of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 7 of this Agreement within thirty (30) days after receipt by the Corporation of a written request therefor, or (v) payment of indemnification is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 9 or 10 of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses, judgments, penalties, fines or, when eligible hereunder, amounts paid in settlement. The Corporation shall not oppose Indemnitee’s right to seek any such adjudication.

11.2 In the event that a determination shall have been made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination.

11.3 If a determination shall have been made or deemed to have been made pursuant to Section 9 or 10 of this Agreement that Indemnitee is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to this Section, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) prohibition of such indemnification under applicable law.

11.4 The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Corporation is bound by all the provisions of this Agreement.

11.5 In the event that Indemnitee, pursuant to this Section, seeks a judicial adjudication of his or her rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Corporation, and shall be indemnified by the Corporation against, any and all expenses (of the kinds described in the definition of Expenses) actually and reasonably incurred by him or her in such judicial adjudication, but only if he or she prevails therein. If it shall be determined in such judicial adjudication that Indemnitee is entitled to receive less than all of the indemnification or advancement of expenses sought, the expenses incurred by Indemnitee in connection with such judicial adjudication shall be appropriately prorated.

12. Procedure Regarding Indemnification.

With respect to any Proceedings, the Indemnitee, prior to taking any action with respect to such Proceeding, shall consult with the Corporation as to the procedure to be followed in defending, settling, or compromising the Proceeding and may not consent to any settlement or compromise of the Proceeding without the written consent of the Corporation (which consent may not be unreasonably withheld or delayed). The Corporation shall be entitled to participate in defending, settling or compromising any Proceeding and to assume the defense of such Proceeding with counsel of its choice and shall assume such defense if requested by the Indemnitee. Notwithstanding the election by, or obligation of, the Corporation to assume the defense of a Proceeding, the Indemnitee shall have the right to participate in the defense of such Proceeding and to employ counsel of Indemnitee’s choice, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless (i) the employment of such counsel has been authorized in writing by the Company, or (ii) the Indemnitee has reasonably concluded that there may be defenses available to him or her which are different from or additional to those available to the Corporation (in which latter case the Corporation shall not have the right to direct the defense of such Proceeding on behalf of the Indemnitee), in either of which events the fees and expenses of not more than one additional firm of attorneys selected by the Indemnitee shall be borne by the Corporation. If the Corporation assumes the defense of a Proceeding, then counsel for the Corporation and Indemnitee shall keep Indemnitee reasonably informed of the status of the Proceeding and promptly send to Indemnitee copies of all documents filed or produced in the Proceeding, and the Corporation shall not compromise or settle any such Proceeding without the written consent of the Indemnitee (which consent may not be unreasonably withheld or delayed) if the relief provided shall be other than monetary damages and shall promptly notify the Indemnitee of any settlement and the amount thereof.

13. Non-Exclusivity; Survival of Rights; Insurance; Subrogation; Contribution.

13.1 The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the certificate of incorporation or by-laws of the Corporation, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or any provision hereof shall be effective as to any Indemnitee with respect to any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.

13.2 To the extent that the Corporation maintains an insurance policy or policies providing liability insurance for directors, officers, employees, agents or fiduciaries of the Corporation or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person serves at the request of the Corporation, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee, agent or fiduciary under such policy or policies.

13.3 In the event of any payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are reasonably necessary to enable the Corporation to bring suit to enforce such rights.

13.4 The Corporation shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.

13.5 (a) If a determination is made that Indemnitee is not entitled to indemnification, after Indemnitee submits a written request therefor, under this Agreement, then in respect of any threatened, pending or completed Proceeding in which the Corporation is jointly liability with the Indemnitee (or would be if joined in such Proceeding), the Corporation shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement by the Indemnitee in such proportion as is appropriate to reflect (i) the relative benefits received by the Corporation on the one hand and the Indemnitee on the other hand from the transaction from which Proceeding arose, and (ii) the relative fault of the Corporation on the one hand and of the Indemnitee on the other hand in connection with the events that resulted in such Expenses, judgments, fines or amounts paid in settlement, as well as any other relevant equitable considerations. The relative fault of the Corporation on the one hand and of the Indemnitee on the other hand shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses, judgments, fines or amounts paid in settlement. The Corporation agrees that it would not be just and equitable if contribution pursuant to this Section were determined by pro rata allocation or any other method of allocation that does not take into account the foregoing equitable considerations.

(b) The determination as to the amount of the contribution, if any, shall be made by:

(i) a court of competent jurisdiction upon the applicable of both the Indemnitee and the Corporation (if the Proceeding had been brought in, and final determination had been rendered by such court);

(ii) the Board by a majority vote of a quorum consisting of Disinterested Directors; or

(iii) Independent Counsel, if a quorum is not obtainable for purpose of (ii) above, or, even if obtainable, a quorum of Disinterested Directors so directs.

14. Duration of Agreement.

This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director and/or officer of the Corporation, or (b) the final termination of all pending Proceedings in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses, judgments, penalties, fines or amounts paid in settlement hereunder and or any proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement. This Agreement shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of Indemnitee and his spouse, heirs, executors, personal representatives and administrators.

15. Severability.

If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

16. Entire Agreement.

This Agreement constitutes the entire agreement between the Corporation and the Indemnitee with respect to the subject matter hereof and supercedes all prior agreements, understanding, negotiations and discussion, both written and oral, between the parties hereto with respect to such subject matter (the “Prior Agreements”); provided, however, that if this Agreement shall ever be held void or unenforceable for any reasons whatsoever, and is not reformed pursuant to Section 15 hereof, then (i) this Agreement shall not be deemed to have superceded any Prior Agreements; (ii) all of such Prior Agreements shall be deemed to be in full force and effect notwithstanding the execution of this Agreement; and (iii) the Indemnitee shall be entitled to maximum indemnification benefits provided under any Prior Agreements, as well as those provided under applicable law, the certificate of incorporation or by-laws of the Corporation, a vote of stockholders or resolution of directors.

17. Exception to Right of Indemnification or Advancement of Expenses.

Except as provided in Section 11.5, Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding, or any claim therein, brought or made by him against the Corporation.

18. Covenant Not to Sue; Limitation of Actions; Release of Claims.

No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Corporation (or any of its subsidiaries) against the Indemnitee, his spouse, heirs, executors, personal representatives or administrators after the expiration of two (2) years from the date of accrual of such cause of action and any claim or cause of action of the Corporation (or any of its subsidiaries) shall be extinguished and deemed released unless asserted by the filing of a legal action within such two (2) year period; provided, however, that if any shorter period of limitation is otherwise applicable to any such cause of action, such shorter period shall govern.

19. Identical Counterparts.

This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.

20. Headings.

The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

21. Modification and Waiver.

No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

22. Notice by Indemnitee.

Indemnitee agrees promptly to notify the Corporation in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating any Proceeding or matter which may be subject to indemnification or advancement of Expenses, judgments, penalties, fines or amounts paid in settlement covered hereunder.

23. Notices.

All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom such notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:

If to Indemnitee, to:

If to the Corporation, to:

	Ascend Acquisition Corp.
	970 West Broadway, PMB 402
	Jackson, Wyoming 83002
	Attention: Chief Executive Officer

or to such other address or such other person as Indemnitee or the Corporation shall designate in writing in accordance with this Section, except that notices regarding changes in notices shall be effective only upon receipt.

24. Governing Law.

The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware applicable to contracts made and performed in that state without giving effect to the principles of conflicts of laws.

25. Miscellaneous.

Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

	ASCEND ACQUISITION CORP.

	By:
		Name:
		Title:

	INDEMNITEE

EX-21 16 v304722_ex21.htm EXHIBIT 21

Subsidiaries of Registrant

Name	Percentage Ownership	State of Organization

Andover Games, LLC	100	Delaware

EX-99.1 17 v304722_ex99-1.htm EXHIBIT 99.1

ASCEND ACQUISITION CORP. COMPLETES MERGER WITH MOBILE GAMING COMPANY ANDOVER GAMES

March 2, 2012 (Jackson Hole, Wyoming)—Ascend Acquisition Corp. (OTC BB: ASCQ) (“Ascend Acquisition” or the “Company”) announced that it has completed its previously announced merger with San Francisco-based mobile gaming company, Andover Games, LLC (“Andover Games”). As a result of the transaction, Andover Games has become a wholly owned subsidiary of Ascend Acquisition and will continue as its operating subsidiary.

Under the terms of the merger agreement, simultaneously with the closing of the merger, Ascend Acquisition completed a private placement of 4 million shares of common stock at $0.50 per share, resulting in $2 million in gross proceeds to the Company. The proceeds will be used for the completion and roll-out of multiple mobile games under direct and indirect development at Andover Games, human capital development, strategic acquisitions, and working capital. The Company will register the resale of the shares sold in the private placement on a registration statement on Form S-1to be filed with the Securities and Exchange Commission (“SEC”) in March 2012.

In connection with the merger, the members of Andover Games have exchanged their equity interests in Andover Games for an aggregate of 38,195,025 shares of Ascend Acquisition. These shares are subject to a 12-month contractual lock up and then will be subject to further regulatory restrictions. Audited financial statements for the period ending December 31, 2011 for Andover Games will be filed by the Company in a Current Report on Form 8-K with the SEC within four business days from the closing.

As a result of this transaction, there are now 50,926,700 shares outstanding of Ascend Acquisition. The number of shares outstanding of Ascend Acquisition will increase depending on the amount of proceeds it raises in the second portion of the private placement which may raise up to an additional $2 million of gross proceeds to the Company within the next 30 days pursuant to the merger agreement.

“We are excited about becoming a public company with this merger with Ascend Acquisition,” said Craig dos Santos, President and CEO of Andover Games. “We believe the ability to use public stock and stock options to attract the very best talent in the mobile gaming industry provides us with a major advantage over our privately held competition. It also makes it possible for us to make both strategic acquisitions of competitors and to make publishing deals with smaller firms in our industry,” said Mr. dos Santos.

“We are pleased that we are welcoming several strategic investors in the media, entertainment and investment communities to our private stock offering who will add significant value to Andover Games in the months ahead,” said Jonathan Ledecky, Chairman of Ascend Acquisition. “These ‘value-added’ investors believe that the talented personnel at Andover Games can successfully navigate the high growth environment prevalent in mobile gaming today,” said Ledecky.

This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities of Ascend Acquisition. The securities offered and/or sold in Ascend Acquisition’s private placement have not been registered under the Securities Act of 1933, as amended, or any state securities laws, and may not be offered or sold in the United States absent registration, or an applicable exemption from registration under the Securities Act of 1933, as amended, and applicable state securities laws.

Forward Looking Statements

This press release includes forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties. Forward looking statements are statements that are not historical facts. Such forward-looking statements, based upon the current beliefs and expectations of Ascend Acquisition’s management, are subject to risks and uncertainties, which could cause actual results to differ from the forward looking statements.

The following factors, among others, could cause actual results to meaningfully differ from those set forth in the forward-looking statements: our ability to develop and then maintain a good relationship with Apple, Google and Facebook; our ability to convert non-paying players into paying players and attract new paying players; our ability to increase purchases by paying players; our ability to retain paying players, especially higher paying players; our ability to anticipate changes in the mobile and social game industry; our ability to cost-effectively develop and launch games; our ability to launch games and release enhancements that become popular; our ability to develop and maintain a scalable, high-performance technology infrastructure that can efficiently and reliably handle increased player usage, fast load times and the deployment of new features and games; our ability to process, store and use data in compliance with governmental regulation and other legal obligations related to privacy; our ability to successfully compete with other companies that are currently in, or may in the future enter, the social game or entertainment industry; our ability to hire, integrate and retain world class talent; our ability to maintain adequate control of our expenses; our ability to successfully expand our business, while maintaining high quality; and our ability to obtain additional working capital as and when needed.

These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside the control of Ascend Acquisition and Andover Games and are difficult to predict. The information set forth herein should be read in light of such risks. Neither Ascend Acquisition, nor Andover Games assumes any obligation to update the information contained in this press release.

About Andover Games

Andover Games is a company formed in January 2011 to create and distribute game applications on current smartphone and other mobile platforms, namely iOS and Android, as well as future competing smartphone platforms.

CONTACT:

Jon Ledecky

Ascend Acquisition

Office: 307-633-2831