SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO § 240.13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO § 240.13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. )*
ASCEND ACQUISITION CORP.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(Title of Class of Securities)
0435OH 308
(CUSIP Number)
Sam Humphreys, Chairman
Selling Source, LLC
c/o London Bay Capital, LLC
15 Funston Avenue
San Francisco, CA 94129
(415)-292-1700
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
July 1, 2013
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.
Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 0435OH 308 | Page 2 of 9 pages |
1. |
NAME OF REPORTING PERSON
Selling Source, LLC | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) ¨ (b) x
| |||||
3. | SEC Use Only
| |||||
4. | SOURCE OF FUNDS
OO | |||||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f) ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
Number Of Shares Beneficially Owned By Each Reporting Person With
|
7. | SOLE VOTING POWER
20,000,000 (1) | ||||
8. | SHARED VOTING POWER
10,000,000 (2) | |||||
9. | SOLE DISPOSITIVE POWER
20,000,000 (1) | |||||
10. | SHARED DISPOSITIVE POWER
0 | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,000,000 (1)(2) | |||||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| |||||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.8 (3) | |||||
14. | TYPE OF REPORTING PERSON
OO |
(1) | The shares of common stock, par value $0.0001 (the Common Stock) of Ascend Acquisition Corp. (the Issuer) covered by this item were issued to Selling Source, LLC in connection with the mergers described in this Schedule 13D and as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013 (the Mergers). |
(2) | The shares of Common Stock of the Issuer covered by this item were issued to the sole holder of New York Publishing Group, Inc. in connection with the Mergers, and which Selling Source has the power to vote pursuant to the Voting Rights Agreement, as described in Items 2, 4 and 6 below. |
(3) | This percentage is based on an aggregate total of 59,011,675 shares of the Issuer issued and outstanding immediately after completion of the Mergers, as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013. |
CUSIP No. 0435OH 308 | Page 3 of 9 pages |
1. |
NAME OF REPORTING PERSON
London Bay TSS Acquisition Company, LLC | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) ¨ (b) x
| |||||
3. | SEC Use Only
| |||||
4. | SOURCE OF FUNDS
OO | |||||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f) ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
Number Of Shares Beneficially Owned By Each Reporting Person With
|
7. | SOLE VOTING POWER
20,000,000 (1) | ||||
8. | SHARED VOTING POWER
10,000,000 (2) | |||||
9. | SOLE DISPOSITIVE POWER
20,000,000 (1) | |||||
10. | SHARED DISPOSITIVE POWER
0 | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,000,000 (1)(2) | |||||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| |||||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.8 (3) | |||||
14. | TYPE OF REPORTING PERSON
OO |
(1) | The shares of common stock, par value $0.0001 (the Common Stock) of Ascend Acquisition Corp. (the Issuer) covered by this item were issued to Selling Source, LLC in connection with the mergers described in this Schedule 13D and as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013 (the Mergers). |
(2) | The shares of Common Stock of the Issuer covered by this item were issued to the sole holder of New York Publishing Group, Inc. in connection with the Mergers, and which Selling Source has the power to vote pursuant to the Voting Rights Agreement, as described in Items 2, 4 and 6 below. |
(3) | This percentage is based on an aggregate total of 59,011,675 shares of the Issuer issued and outstanding immediately after completion of the Mergers, as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013. |
CUSIP No. 0435OH 308 | Page 4 of 9 pages |
1. |
NAME OF REPORTING PERSON
London Bay TSS Holding Company, LLC | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) ¨ (b) x
| |||||
3. | SEC Use Only
| |||||
4. | SOURCE OF FUNDS
OO | |||||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f) ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
Number Of Shares Beneficially Owned By Each Reporting Person With
|
7. | SOLE VOTING POWER
20,000,000 (1) | ||||
8. | SHARED VOTING POWER
10,000,000 (2) | |||||
9. | SOLE DISPOSITIVE POWER
20,000,000 (1) | |||||
10. | SHARED DISPOSITIVE POWER
0 | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,000,000 (1)(2) | |||||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| |||||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.8 (3) | |||||
14. | TYPE OF REPORTING PERSON
OO |
(1) | The shares of common stock, par value $0.0001 (the Common Stock) of Ascend Acquisition Corp. (the Issuer) covered by this item were issued to Selling Source, LLC in connection with the mergers described in this Schedule 13D and as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013 (the Mergers). |
(2) | The shares of Common Stock of the Issuer covered by this item were issued to the sole holder of New York Publishing Group, Inc. in connection with the Mergers, and which Selling Source has the power to vote pursuant to the Voting Rights Agreement, as described in Items 2, 4 and 6 below. |
(3) | This percentage is based on an aggregate total of 59,011,675 shares of the Issuer issued and outstanding immediately after completion of the Mergers, as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013. |
CUSIP No. 0435OH 308 | Page 5 of 9 pages |
1. |
NAME OF REPORTING PERSON
London Bay Capital, LLC | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) ¨ (b) x
| |||||
3. | SEC Use Only
| |||||
4. | SOURCE OF FUNDS
OO | |||||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f) ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
Number Of Shares Beneficially Owned By Each Reporting Person With
|
7. | SOLE VOTING POWER
20,000,000 (1) | ||||
8. | SHARED VOTING POWER
10,000,000 (2) | |||||
9. | SOLE DISPOSITIVE POWER
20,000,000 (1) | |||||
10. | SHARED DISPOSITIVE POWER
0 | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,000,000 (1)(2) | |||||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| |||||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.8 (3) | |||||
14. | TYPE OF REPORTING PERSON
OO |
(1) | The shares of common stock, par value $0.0001 (the Common Stock) of Ascend Acquisition Corp. (the Issuer) covered by this item were issued to Selling Source, LLC in connection with the mergers described in this Schedule 13D and as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013 (the Mergers). |
(2) | The shares of Common Stock of the Issuer covered by this item were issued to the sole holder of New York Publishing Group, Inc. in connection with the Mergers, and which Selling Source has the power to vote pursuant to the Voting Rights Agreement, as described in Items 2, 4 and 6 below. |
(3) | This percentage is based on an aggregate total of 59,011,675 shares of the Issuer issued and outstanding immediately after completion of the Mergers, as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013. |
CUSIP No. 0435OH 308 | Page 6 of 9 pages |
ITEM 1. | SECURITY AND ISSUER. |
This statement on Schedule 13D (the Schedule 13D) relates to the common stock, par value $0.0001 per share (the Common Stock), of Ascend Acquisition Corp., a Delaware corporation (Ascend or the Issuer). The principal executive offices of the Issuer are located at 525 Washington Avenue, 26th Floor, Jersey City, New Jersey 07310.
ITEM 2. | IDENTITY AND BACKGROUND. |
(a) The undersigned hereby files this Schedule 13D on behalf of London Bay Capital, LLC, a Delaware limited liability company (LBC), London Bay TSS Holding Company, LLC, a Delaware limited liability company (LBHC), London Bay TSS Acquisition Company, LLC, a Delaware limited liability company (LB-TSS) and Selling Source, LLC, a Delaware limited liability company (Selling Source). LBC, LBHC, LB-TSS and Selling Source are sometimes hereinafter referred to as the Reporting Persons.
(b) The principal place of business and principal executive office of each of LBC, LBHC, LB-TSS and Selling Source is c/o London Bay Capital, LLC, 15 Funston Avenue, San Francisco, California, 94129.
(c) LBC is a Delaware limited liability company, the principal business of which is investment management. LBHC is a Delaware limited liability company, the principal business of which is to acquire and hold membership units of LB-TSS. LBC is the controlling member of LBHC. LB-TSS is a Delaware limited liability, the principal business of which is to acquire and hold membership units of Selling Source. LBHC is the controlling member of LB-TSS. Selling Source is a Delaware limited liability company, the principal business of which is on-line marketing and database management and related services. LB-TSS is the controlling member of Selling Source.
As further described in Items 4 and 6 of this Schedule 13D, Selling Source is party to a voting rights agreement, dated as of July 1, 2013 (the Voting Rights Agreement), by and between Selling Source and Mr. Robert Regular, the sole stockholder of NYPG (the NYPG Holder). Based on the foregoing, it is possible that Selling Source and the NYPG Holder may be deemed to constitute a group for purposes of Section 13d-3 of the Securities Exchange Act of 1934, as amended; however, the Reporting Persons do not affirm that such a group has been formed, and the Reporting Persons expressly disclaim beneficial ownership of all of the shares of Common Stock subject to the Voting Rights Agreement and any securities beneficially owned by any other person.
(d) None of the entities identified in this Item 2 has, during the last five years, been convicted in a criminal proceeding.
(e) None of the entities identified in this Item 2 has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
ITEM 3. | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. |
On June 12, 2013, Ascend, Ascend Merger Sub, LLC, a Delaware limited liability company (Merger Sub LLC), Ascend Merger Sub, Inc., a Delaware corporation, (Merger Sub Inc.), Kitara Media, LLC (Kitara Media), a Delaware corporation and wholly owned subsidiary of Selling Source,
CUSIP No. 0435OH 308 | Page 7 of 9 pages |
New York Publishing Group, Inc. (NYPG), a Delaware corporation and certain securityholders of NYPG and Kitara Media (together the Signing Holders) entered into a Merger Agreement and Plan of Reorganization (as amended by that certain Amendment No. 1 to the Merger Agreement and Plan of Reorganization, dated as of July 1, 2013, the Merger Agreement, and such amendment, the Merger Agreement Amendment), pursuant to which, and subject to the terms and conditions thereof, on July 1, 2013 (the Closing Date), Merger Sub LLC merged with and into Kitara Media, and Merger Sub Inc. merged with and into NYPG (together, the Mergers), with each of Kitara Media and NYPG surviving the Mergers as wholly owned subsidiaries of Ascend. On the Closing Date, pursuant to the Merger Agreement, and subject to the terms and conditions thereof, at the effective time of the Mergers, Selling Source, as the sole holder of the membership units of Kitara Media, received 20,000,000 shares of Common Stock of the Issuer and the NYPG Holder received 10,000,000 shares of Common Stock of the Issuer, representing 33.9% and 16.9%, respectively, of the capitalization of the Issuer based on an aggregate total of 59,011,675 shares of the Issuer issued and outstanding immediately after completion of the Mergers, as reported in the Current Report on Form 8-K filed by the Issuer with the Securities and Exchange Commission on July 5, 2013. The Merger Agreement is incorporated as Exhibit A hereto by reference to Exhibit 2.1 to the Issuers Current Report on Form 8-K dated June 12, 2013 and filed with the Securities and Exchange Commission on June 12, 2013, and any description thereof is qualified in its entirety by reference thereto. The Merger Agreement Amendment is incorporated as Exhibit B hereto by reference to Exhibit 2.2 to the Issuers Current Report on Form 8-K dated July 5, 2013, and filed with the Securities and Exchange Commission on July 5, 2013, and any description thereof is qualified in its entirety by reference thereto.
The shares of Common Stock of the Issuer were issued to Selling Source and the NYPG Holder in exchange for their membership interests in Kitara Media and shares of common stock of NYPG, respectively. Selling Source did not use any funds for the acquisition of such shares of Common Stock of the Issuer.
ITEM 4. | PURPOSE OF THE TRANSACTION. |
Selling Source acquired 20,000,000 shares of Common Stock of the Issuer as a result of the Mergers described in Item 3 above. In connection with the Mergers, on the Closing Date, the Issuer, Selling Source and the NYPG Holder entered into the Registration Rights Agreement (as described in Item 6 below), the Issuer, Continental Stock Transfer and Trust Company and representatives of each of Selling Source, the NYPG Holder and the Issuer entered into the Escrow Agreement (as described in Item 6 below), Selling Source and the NYPG Holder entered into the Voting Rights Agreement (as described in Item 6 below) and the Issuer and Selling Source entered into a Lock-up Agreement (as described in Item 6 below).
Other than as described in this Schedule 13D, none of the Reporting Persons have any present plans or proposals that relate to or would result in: (i) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (iv) any material change in the present capitalization or dividend policy of the Issuer; (v) any other material change in the Issuers business or corporate structure; (vi) changes in the Issuers charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (vii) causing a class of securities of the Issuer to be de-listed from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (viii) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (ix) any action similar to any of those enumerated above.
CUSIP No. 0435OH 308 | Page 8 of 9 pages |
ITEM 5. | INTEREST IN SECURITIES OF THE ISSUER. |
(a) and (b) The information required in these paragraphs with respect to each Reporting Person is set forth in Rows 7 through 13 of the respective cover pages to this Schedule 13D and is incorporated herein by reference.
(c) Except as described in this Schedule 13D, to the knowledge of any of the Reporting Persons, no other transactions in the Common Stock were effected by the Reporting Person or any of the entities or persons named in Item 2 of this Schedule 13D during the sixty days prior to the date of this Schedule 13D.
(d) To the knowledge of any of the Reporting Persons, no other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities reported in this Item 5.
(e) Not applicable.
ITEM 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. |
The information set forth or incorporated by reference in Items 3 and 4 of this Schedule 13D is incorporated herein by reference.
Lock-Up Agreements
In connection with the Mergers, on the Closing Date, the Issuer, Selling Source, the NYPG Holder, and certain other holders and pledgees of the Common Stock of the Issuer entered into Lock-up Agreements (the Lock-up Agreements), pursuant to which each of such parties agreed, subject to certain exceptions, not to 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 any of their shares of Common Stock of the Issuer, without the prior written consent of the Issuer, for 12 months after the Closing Date.
Registration Rights Agreement
In connection with the Mergers, on the Closing Date, the Issuer entered into a Registration Rights Agreement (the Registration Rights Agreement) with the Signing Holders, which requires, among other things, from time to time, upon the demand of the Signing Holders holding at least 30% of the shares issued in the Mergers, Ascend, subject to the terms and conditions under the Registration Rights Agreement, to use its best efforts to register for public sale the shares of Common Stock of the Issuer acquired by the Signing Holders as consideration in the Mergers.
Subject to certain limitations, the Registration Rights Agreement also provides the Signing Holders with certain piggyback registration rights for underwritten public offerings that Ascend may effect for its own account or for the benefit of other selling stockholders.
Escrow Agreement
In connection with the Mergers, on the Closing Date, to provide for the indemnification obligations of Ascend, Selling Source and the NYPG Holder, Ascend, Continental Stock Transfer and Trust Company and representatives of each of Selling Source, the NYPG Holder and Ascend entered into an escrow agreement, pursuant to which an aggregate amount of shares equal to ten percent (10%) of the Ascend Common Stock (the Escrow Shares) received by Selling Source and the NYPG Holder at closing was deposited in escrow. The Escrow Shares will be released on the 5th business day after Ascend is required to file its Annual Report on Form 10-K with the SEC for the year ending December 31, 2013, less any amount of shares due in satisfaction of, or reserved with respect to, indemnification claims by the parties.
Voting Rights Agreement
In connection with the Mergers, on the Closing Date, Selling Source and the NYPG Holder entered into the Voting Rights Agreement, which requires, among other things, that if Selling Source exercises its right to nominate individuals to serve on Ascends board of directors, the NYPG Holder
CUSIP No. 0435OH 308 | Page 9 of 9 pages |
will vote all of his shares of Common Stock of the Issuer in favor of such Selling Source nominee, provided that the NYPG Holder is not required to vote his shares of Common Stock of the Issuer in any manner that would or may result in removing the NYPG Holder from Ascends board of directors.
The Voting Rights Agreement and all rights and obligations of the parties thereunder shall terminate upon Selling Source ceasing to be the beneficial or record owner of more than 30% of the shares of Common Stock of the Issuer received in connection with the Mergers or if the NYPG Holder ceases to be employed as the Chief Executive Officer of Ascend.
The foregoing descriptions of the Lock-up Agreements, the Registration Rights Agreement, the Escrow Agreement, and the Voting Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the Lock-up Agreements, the Registration Rights Agreement, the Escrow Agreement, and the Voting Rights Agreement. Copies of the Lock-up Agreement, the Registration Rights Agreement and the Escrow Agreement are incorporated as Exhibits C, D, and E hereto, respectively, by references to Exhibits 10.3, 10.1 and 10.2, respectively, to the Issuers Current Report on Form 8-K dated July 5, 2013 and filed with the Securities and Exchange Commission on July 5, 2013, and any description thereof is qualified in its entirety by reference thereto. A copy of the Voting Rights Agreement is filed as Exhibit F hereto, and any description thereof is qualified in its entirety by reference thereto.
ITEM 7. | MATERIAL TO BE FILED AS EXHIBITS. |
Exhibit A |
Agreement and Plan of Reorganization, dated as of June 12, 2013, by and among Ascend Acquisition Corp., Ascend Merger Sub, LLC, Ascend Merger Sub, Inc., Kitara Media, LLC, New York Publishing Group, Inc. and the securityholders party thereto (filed as Exhibit 2.1 to the Current Report on Form 8-K of Ascend Acquisition Corp. as filed with the Securities and Exchange Commission on June 12, 2013 and incorporated herein by reference). | |
Exhibit B |
Amendment No. 1 to Merger Agreement and Plan of Reorganization, dated as of July 1, 2013, among Ascend Acquisition Corp., Ascend Merger Sub, LLC, Ascend Merger Sub, Inc., Kitara Media, LLC, New York Publishing Group, Inc. and the signing holders listed on the Signing Holder Signature Page thereto (filed as Exhibit 2.2 to the Current Report on Form 8-K of Ascend Acquisition Corp. as filed with the Securities and Exchange Commission on July 5, 2013 and incorporated herein by reference). | |
Exhibit C |
Form of Lock-up Agreement, incorporated by reference to Exhibit 10.3 to the Issuers Current Report on Form 8-K, dated July 5, 2013 and filed with the Securities Exchange Commission on July 5, 2013. | |
Exhibit D |
Registration Rights Agreement, dated as of July 1, 2013, incorporated by reference to Exhibit 10.1 to the Issuers Current Report on Form 8-K, dated July 5, 2013 and filed with the Securities Exchange Commission on July 5, 2013. | |
Exhibit E |
Escrow Agreement, dated as of July 1, 2013, by and among Ascend Acquisition Corp., the representatives of the former sole Member of Kitara Media, LLC and the former sole stockholder of New York Publishing Group, Inc., the committee representing the interests of Ascend Acquisition Corp. and Continental Stock Transfer & Trust Company, incorporated by reference to Exhibit 10.2 to the Issuers Current Report on Form 8-K, dated July 5, 2013 and filed with the Securities Exchange Commission on July 5, 2013. | |
Exhibit F |
Voting Rights Agreement, dated as of July 1, 2013, by and between Selling Source, LLC and Robert Regular. | |
Exhibit G | Power of Attorney, dated as of July 1, 2013, by and among Sam Humphreys, London Bay Capital, LLC, London Bay-TSS Holding Company, LLC, London Bay TSS Acquisition Company, LLC and Selling Source, LLC. | |
Exhibit H | Agreement pursuant to Rule 13d-1(k) |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
DATE: JULY 5, 2013 | By: | /s/ Sam Humphreys | ||
Name: Sam Humphreys, as Attorney-in-Fact for: | ||||
LONDON BAY CAPITAL, LLC* LONDON BAY-TSS HOLDING COMPANY, LLC* LONDON BAY-TSS ACQUISITION COMPANY, LLC* SELLING SOURCE, LLC*
* A Power of Attorney authorizing Sam Humphreys to act on behalf of this entity is filed as Exhibit G. |
EXHIBIT INDEX
Exhibit A |
Agreement and Plan of Reorganization, dated as of June 12, 2013, by and among Ascend Acquisition Corp., Ascend Merger Sub, LLC, Ascend Merger Sub, Inc., Kitara Media, LLC, New York Publishing Group, Inc. and the securityholders party thereto (filed as Exhibit 2.1 to the Current Report on Form 8-K of Ascend Acquisition Corp. as filed with the Securities and Exchange Commission on June 12, 2013 and incorporated herein by reference). | |
Exhibit B |
Amendment No. 1 to Merger Agreement and Plan of Reorganization, dated as of July 1, 2013, among Ascend Acquisition Corp., Ascend Merger Sub, LLC, Ascend Merger Sub, Inc., Kitara Media, LLC, New York Publishing Group, Inc. and the signing holders listed on the Signing Holder Signature Page thereto (filed as Exhibit 2.2 to the Current Report on Form 8-K of Ascend Acquisition Corp. as filed with the Securities and Exchange Commission on July 5, 2013 and incorporated herein by reference). | |
Exhibit C |
Form of Lock-up Agreement, incorporated by reference to Exhibit 10.3 to the Issuers Current Report on Form 8-K, dated July 5, 2013 and filed with the Securities Exchange Commission on July 5, 2013. | |
Exhibit D |
Registration Rights Agreement, dated as of July 1, 2013, incorporated by reference to Exhibit 10.1 to the Issuers Current Report on Form 8-K, dated July 5, 2013 and filed with the Securities Exchange Commission on July 5, 2013. | |
Exhibit E |
Escrow Agreement, dated as of July 1, 2013, by and among Ascend Acquisition Corp., the representatives of the former sole Member of Kitara Media, LLC and the former sole stockholder of New York Publishing Group, Inc., the committee representing the interests of Ascend Acquisition Corp. and Continental Stock Transfer & Trust Company, incorporated by reference to Exhibit 10.2 to the Issuers Current Report on Form 8-K, dated July 5, 2013 and filed with the Securities Exchange Commission on July 5, 2013. | |
Exhibit F |
Voting Rights Agreement, dated as of July 1, 2013, by and between Selling Source, LLC and Robert Regular. | |
Exhibit G |
Power of Attorney, dated as of July 1, 2013, by and among Sam Humphreys, London Bay Capital, LLC, London Bay-TSS Holding Company, LLC, London Bay TSS Acquisition Company, LLC and Selling Source, LLC. | |
Exhibit H | Agreement pursuant to Rule 13d-1(k) |
Exhibit F
EXECUTION VERSION
VOTING RIGHTS AGREEMENT
This VOTING RIGHTS AGREEMENT (this Agreement) is made and entered into as of July 1, 2013, by and among Selling Source, LLC, a Delaware limited liability company (Selling Source), and Robert S.K. Regular (the Stockholder).
RECITALS
WHEREAS, each of Selling Source, the Stockholder and Ascend Acquisition Corp., a Delaware corporation (the Company), are party to that certain Merger Agreement and Plan of Reorganization (the Merger Agreement), dated as of June 12, 2013, by and among the Company, Ascend Merger Sub, LLC (Merger Sub LLC), Ascend Merger Sub, Inc. (Merger Sub Inc.), Kitara Media, LLC (Kitara Media), New York Publishing Group, Inc. (NYPG) and certain security-holders party thereto, pursuant to which Kitara Media merged with and into Merger Sub LLC and NYPG merged with and into Merger Sub Inc. (the Mergers);
WHEREAS, as a result of the Mergers, the Stockholder is the record and beneficial owner of 10,000,000 shares of common stock of the Company (together with such additional shares of common stock that become beneficially owned (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) by such Stockholder, whether upon the exercise of options, conversion of convertible securities or otherwise, after the date hereof, the Shares); and
WHEREAS, the Merger Agreement requires that the Stockholder enter into an agreement granting Selling Source certain voting rights covering the Shares received by the Stockholder in connection with the Mergers and the Merger Agreement.
NOW THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained in this Agreement and for other good and valuable consideration, the parties hereto agree as follows:
Section 1. | Representations and Warranties of Stockholder. |
The Stockholder hereby represents and warrants to Selling Source as follows:
(a) Authority; Binding Obligation. The Stockholder has all necessary capacity, power and authority to enter into this Agreement and perform all of the Stockholders obligations hereunder. This Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and legally binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms.
(b) Ownership of Shares. The Stockholder is the beneficial owner or record holder of 10,000,000 Shares. With respect to these Shares, the Stockholder has sole voting power and sole power to issue instructions with respect to or otherwise engage in the actions set forth in Section 2 hereof, sole power of disposition and sole power to demand appraisal rights, with no restrictions (other than those set out in this Agreement) on the voting rights, rights of disposition or otherwise, subject to applicable laws and the terms of this Agreement.
(c) No Conflicts. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby will conflict with or constitute a violation of or a default under (with or without notice, lapse of time or both) any contract, agreement, voting agreement, shareholders agreement, trust agreement, voting trust, proxy, power of attorney, pooling arrangement, note, mortgage, indenture, instrument, arrangement or other obligation or restriction of any kind to which the Stockholder is a party or which the Stockholder or the Shares are subject to or bound.
(d) No Other Agreements. The Stockholder is not a party to any other contract, agreement, trust, proxy or arrangement which limits, restricts or directs the voting of the Shares, other than this Agreement.
Section 2. | Voting Restrictions. |
(a) In the event Selling Source elects to nominate individuals to serve as members of the Companys Board of Directors (such individuals, the Selling Source Nominees), the Stockholder shall vote for the Selling Source Nominees to serve as directors. In the case of a vacancy in the office of a director elected pursuant to this Section 2(a), Selling Source shall have the right, but not the obligation, to nominate a successor to such Selling Source Nominee and the Stockholder shall vote all Shares to elect such new Selling Source Nominee pursuant to this Section 2(a). Any director who shall have been elected pursuant to this Section 2(a) may be removed during the aforesaid term of office, whether with or without cause, only upon the written direction by Selling Source to the Stockholder to remove such director, following which the Stockholder agrees to vote all Shares in favor of such removal. Notwithstanding anything to the contrary herein, the Stockholder shall not be required by this Agreement to vote the Shares in any manner that would or may result in removing Robert S.K. Regular from the Companys Board of Directors.
(b) None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such partys execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement.
(c) The voting of the Shares may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law.
-2-
Section 3. | Reserved. |
Section 4. | Transferees Subject to Voting Agreement; No Voting Trusts. |
The Stockholder hereby agrees that any permitted transferee of the Shares must become a party to this Agreement and any purported transfer of the Shares to a person or entity that does not become a party hereto shall be null and void ab initio. The Stockholder hereby agrees not to deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than pursuant to this Agreement or any other agreements entered into with Selling Source.
Section 5. | Specific Performance. |
The Stockholder acknowledges that it would be impossible to determine the amount of damages that would result from any breach of any obligation under this Agreement and that the remedy at law for any breach, or threatened breach, would likely be inadequate and, accordingly, agree that Selling Source shall, in addition to any other rights or remedies which it may have at law or in equity, be entitled to seek such equitable and injunctive relief as may be available from any court of competent jurisdiction to restrain the Stockholder from violating any obligation under this Agreement. In connection with any action or proceeding for such equitable or injunctive relief, the Stockholder hereby waives any claim or defense that a remedy at law alone is adequate and agree, to the maximum extent permitted by law, to have the obligations of the Stockholder under this Agreement specifically enforced against him, without the necessity of posting bond or other security, and consent to the entry of equitable or injunctive relief against the Stockholder enjoining or restraining any breach or threatened breach of this Agreement.
Section 6. | Further Assurances. |
(a) The Stockholder agrees to use his best efforts to ensure that the rights given to the parties hereunder are effective and that the parties enjoy the benefits thereof. The Stockholder will not, by any voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be performed hereunder by the Stockholder, but will at all times in good faith assist in the carrying out of all of the provisions of this Agreement and in the taking of all such actions as may be necessary or appropriate in order to protect the rights of the parties hereunder against impairment.
(b) Each of the parties hereto shall cooperate with the other parties and execute and deliver to the other parties, such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, give effect to and confirm their rights and intended purpose of this Agreement.
Section 7. | Term and Termination. |
The term of this Agreement shall commence on the date first set forth above and will continue until Selling Source beneficially owns (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) less than thirty percent (30%) of the shares of the Companys common stock that were issued to Selling Source in the
-3-
Mergers as a result of sales by Selling Source of such shares. This Agreement will also terminate automatically if (i)London Bay Capital, LLC or its affiliates cease to control Selling Source Robert S.K Regular is no longer employed as Chief Executive Officer of the Company.
Section 8. | Miscellaneous. |
(a) Notices. Whenever notice is required or permitted by this Agreement to be given, such notice shall be in writing and given in accordance with this Section 8(a). Each proper notice shall be effective upon any of the following: (i) personal delivery to the recipient, (ii) when telecopied or emailed to the recipient if the telecopy is promptly confirmed by automated or telephone confirmation thereof or if the email is promptly confirmed by email or telephone confirmation thereof or (iii) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid). Notice shall be sent to such person at the applicable address set forth below:
If to Selling Source:
Selling Source, LLC
c/o London Bay Capital, LLC
15 Funston Avenue
San Francisco, CA 94129
Telephone: (415) 292-1700
Telecopy: (415) 962-0762
Attention: Sam Humphreys
With a copy to (which shall not constitute notice):
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: Scott D. Miller
Telephone: 212-558-3109
Telecopy: 212-291-9101
If to the Stockholder:
Robert S.K. Regular
C/o Kitara Media, LLC
525 Washington Avenue
26th Floor
Jersey City, NJ 07310
Telephone: 201-539-2201
Email: bob@kitaramedia.com
-4-
With a copy to (which shall not constitute notice)
Darrin Ocasio, Esq.
C/o Sichenzia Ross Friedman Ference LLP
61 Broadway
New York, New York 10006
Any party may change the address or the persons to whom notices or copies hereunder shall be directed by providing written notice of such change to the other parties hereto in accordance with this Section 8(a).
(b) Amendment; Waiver. This Agreement may be amended only by an instrument in writing signed by the parties to this Agreement. This Agreement and any provision hereof may be waived as to any party against whom the waiver is to be effective only by a writing signed by such party. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.
(c) Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and replaces all other prior agreements, written or oral, among the parties hereto with respect to the subject matter hereof.
(d) Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (including Section 5-1401 of the New York General Obligations Law) without regard to principles of conflicts of law thereof. Each party agrees that it shall bring any action, suit, demand or proceeding (including counterclaims) in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby, exclusively in the United States District Court for the Southern District of New York or any New York State court, in each case, sitting in the borough of Manhattan (the Chosen Courts), and solely in connection with claims arising under this Agreement or the transactions contemplated hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action, suit, demand or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action, suit, demand or proceeding shall be effective if notice is given in accordance with Section 8(a). Each party irrevocably waives any and all right to trial by jury in any action, suit, demand or proceeding (including counterclaims) arising out of or related to this Agreement or the transactions contemplated hereby.
(e) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.
-5-
(f) Successors and Assigns. Except as otherwise expressly provided herein, this Agreement shall be binding upon and benefit Selling Source, the Stockholder and their respective successors and permitted assigns.
(g) Headings. The heading references herein are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.
(h) Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
(i) Non-Recourse. Anything that may be expressed or implied in this Agreement notwithstanding, each of the parties hereto covenants, acknowledges and agrees that no person other than the parties to this Agreement shall have any liability or obligation hereunder and that, (i) the fact that any affiliate of any of the parties to this Agreement may be a limited liability company notwithstanding, no recourse hereunder or under any documents or instruments delivered in connection herewith shall be had against any former, current or future direct or indirect director, officer, employee, agent, partner, manager, member, securityholder, affiliate, stockholder, controlling person, assignee or representative of the parties hereto under this Agreement or under the Merger Agreement (any such person or entity, other than the parties to this Agreement, or their assignees under this Agreement or the Merger Agreement, a Related Party) or any Related Party of any of such parties Related Parties (including, without limitation, in respect of any liabilities or obligations arising under, or in connection with, any claim, including, without limitation, any claim of breach of a partys obligations under the Merger Agreement and the transactions contemplated thereby or under this Agreement and the transactions contemplated hereby) whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law and (ii) no personal liability whatsoever will attach to, be imposed on or otherwise incurred by any Related Party of any of the parties to this Agreement or any Related Party of any of such parties Related Parties under this Agreement or for any claim based on, in respect of, or by reason of the transactions contemplated hereby or contemplated by the Merger Agreement, or by the creation of such transactions. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person, other than the parties to this Agreement, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(j) Interpretation. When a reference is made in this Agreement to a Section or Subsection, such reference shall be to a Section or Subsection of this Agreement unless otherwise indicated. Whenever the words include, includes or
-6-
including are used in this Agreement, they shall be deemed to be followed by the words without limitation. The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Each of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.
[Signature page follows.]
-7-
IN WITNESS WHEREOF, this Voting Rights Agreement has been duly executed by each of the parties hereto as of the date first written above.
SELLING SOURCE, LLC | ||||
By: | /s/ Sam Humphreys | |||
Name: | Sam Humphreys | |||
Title: | Chairman |
/s/ Robert Regular |
Robert Regular |
[Signature page to Voting Rights Agreement]
EXHIBIT G
KNOW ALL PERSONS BY THESE PRESENTS, that each of London Bay Capital, LLC, London Bay-TSS Holding Company, LLC, London Bay-TSS Acquisition Company, LLC, and Selling Source, LLC (each a Grantor) has made, constituted and appointed, and by these presents does make, constitute and appoint, Sam Humphreys (Attorney), the true and lawful agent and attorney-in-fact, with full power of substitution and resubstitution, of the Grantor, for and in Grantors name, place and stead, in any and all capacities, to do all or any of the following acts, matters and things:
1. | To sign on behalf of the Grantor statements on Schedule 13D or 13G or Forms 3, 4 or 5, or amendments thereto pursuant to Section 13(d) or Section 16 under the Securities Exchange Act of 1934. |
2. | To do all such other acts and things as, in such Attorneys discretion, he or she deems appropriate or desirable for the purpose of filing such statements on Schedule 13D or 13G or Forms 3, 4 or 5, or amendments thereto. |
3. | To appoint in writing one or more substitutes who shall have the power to act on behalf of the Grantor as if that substitute or those substitutes shall have been originally appointed Attorney(s) by this Power of Attorney and/or to revoke any such appointment at any time without assigning any reason therefor. |
Each Grantor hereby ratifies and confirms all that said agents and attorneys-in-fact or any substitute or substitutes may lawfully do or cause to be done by virtue hereof. This Power of Attorney shall remain in full force and effect until the undersigned is no longer required to file Forms 3, 4 and 5 or to file reports under Section 13(d) of the Securities Exchange Act of 1934 with respect to the undersigneds holdings of and transactions in securities issued by Ascend Acquisition Corp., unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact.
IN WITNESS WHEREOF, Grantor duly assents to this Power of Attorney by his, her or its signature as of the 1st day of July, 2013.
LONDON BAY CAPITAL, LLC | ||
By: | /s/ Sam Humphreys | |
Name: | Sam Humphreys | |
Title: | Chief Executive Officer | |
LONDON BAY TSS HOLDING COMPANY, LLC | ||
By: | /s/ Sam Humphreys | |
Name: | Sam Humphreys | |
Title: | Authorized Person | |
LONDON BAY TSS ACQUISITION COMPANY, LLC | ||
By: | /s/ Sam Humphreys | |
Name: | Sam Humphreys | |
Title: | Authorized Person | |
SELLING SOURCE, LLC | ||
By: | /s/ Sam Humphreys | |
Name: | Sam Humphreys | |
Title: | Chairman |
EXHIBIT H
Pursuant to Rule 13d-1(k) of Regulation 13D-G of the General Rules and Regulations of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, the undersigned agrees that the statement to which this Exhibit is attached is filed on behalf of each of them in the capacities set forth below.
DATE: JULY 5, 2013 | By: | /s/ Sam Humphreys | ||||
Name: | Sam Humphreys, as Attorney-in-Fact for: | |||||
LONDON BAY CAPITAL, LLC* | ||||||
LONDON BAY-TSS HOLDING COMPANY, LLC* | ||||||
LONDON BAY-TSS ACQUISITION COMPANY, LLC* | ||||||
SELLING SOURCE, LLC* | ||||||
* A Power of Attorney authorizing Sam Humphreys to act on behalf of this entity is filed as Exhibit G. |