SUPPORT AGREEMENT
Exhibit 99.5
THIS
SUPPORT AGREEMENT (this “Agreement”), dated as of November
2, 2018, is entered into by and among ConversionPoint Technologies,
Inc., a Delaware corporation (“CPT”), ConversionPoint Holdings,
Inc., a Delaware corporation (“Parent”), a wholly-owned
Subsidiary of CPT, CPT Merger Sub, a Delaware corporation and a
wholly-owned Subsidiary of Parent (“CPT Merger Sub”), CPT Cigar Merger
Sub, Inc., a Nevada corporation and a wholly-owned Subsidiary of
Parent (“Inuvo Merger
Sub”), Inuvo, Inc., a Nevada corporation
(“Inuvo”), and Xxxxxxx X. Xxxxxx (the
“Stockholder”).
Each of Parent, CPT, CPT Merger Sub, Inuvo Merger Sub and Inuvo is
a “Party” and
together, the “Parties.” Capitalized terms used
and not otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, as of the
date hereof, the Stockholder is the record and Beneficial Owner (as
defined below) of the Existing Shares (as defined below), and has
sole investment power over, the Existing Shares;
WHEREAS,
concurrently with the execution of this Agreement, Parent, CPT,
Inuvo, CPT Merger Sub and Inuvo Merger Sub have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the
“Merger
Agreement”), providing for, among other things and
subject to the terms and conditions of the Merger Agreement: (i) a
merger of CPT Merger Sub with and into CPT, with CPT being the
surviving entity and becoming a wholly-owned Subsidiary of Parent
(the “CPT
Merger”), (ii) the merger of Inuvo Merger Sub with and
into Inuvo, with Inuvo being the surviving entity and becoming a
wholly-owned Subsidiary of Parent (the “Inuvo Merger” and, together with
the CPT Merger, the “Mergers”), on the terms and
subject to the conditions set forth in the Merger
Agreement;
WHEREAS, the
Stockholder has been provided with the execution copy of the Merger
Agreement and acknowledges that the Stockholder will benefit
directly and substantially from the consummation of the
transactions contemplated thereby;
WHEREAS, as a
condition and inducement to the willingness of Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub to enter into the Merger
Agreement, Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub
have required that the Stockholder agree to, and the Stockholder
has agreed to, enter into this Agreement; and
WHEREAS, as of the
date hereof and subject to the terms and conditions herein, the
Stockholder has agreed to enter into this Agreement and vote in
favor of the Inuvo Merger and the transactions contemplated by the
Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Agreement
to Vote.
(a) From
the date hereof until the Termination Date in accordance with
Section 8 (the
“Voting
Period”), at every meeting of the stockholders of
Inuvo called with respect to any of the following, and at every
adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of Inuvo with
respect to any of the following, the Stockholder hereby irrevocably
and unconditionally agrees to be present (in person or by proxy)
and vote (or cause to be voted), or (with respect to any written
consent solicitation) deliver (or cause to be delivered) a written
consent with respect to, all of the Subject Shares (as defined
below): (A) in favor of the adoption of the Merger Agreement
and the approval of the transactions contemplated thereby,
including the Inuvo Merger, and any related proposal in furtherance
thereof; (B) in favor of any proposal to adjourn or postpone
the Inuvo Stockholders’ Meeting to a later date if there are
not sufficient votes to adopt the Merger Agreement and/or if there
are not sufficient shares present in person or by proxy at the
Inuvo Stockholders’ Meeting to constitute a quorum;
(C) in favor of any other matter necessary to consummate the
transactions contemplated by the Merger Agreement; and
(D) against the following actions: (1) any merger, tender
offer, exchange offer, sale of all or substantially all assets,
recapitalization, reorganization, consolidation, share exchange,
business combination, liquidation, dissolution or similar
transaction or series of transactions involving Inuvo, any of its
Subsidiaries and any other Person (including any Inuvo Takover
Proposal), other than the Mergers and (2) any other action or
agreement that would reasonably be expected to impede, frustrate,
interfere with, delay, postpone or adversely affect the Mergers or
any other transaction contemplated by the Merger Agreement,
including the consummation thereof. The Stockholder retains the
authority to vote on all other matters.
(b) At
any meeting of the stockholders of Inuvo to which Section 1(a) above is
applicable, the Stockholder shall, or shall direct the holder(s) of
record of all of the Subject Shares on any applicable record date
to, appear, in person or by proxy, at each meeting or otherwise
cause all of the Subject Shares to be counted as present for
purposes of establishing a quorum. The Stockholder shall provide
CPT with at least five (5) Business Days’ written notice
prior to signing any action proposed to be taken by written consent
with respect to any Subject Shares.
2
(c) Solely
in the event of a failure by the Stockholder to act in accordance
with its obligations pursuant to Section 1(a) and
Section 1(b)
of this Agreement, and except as otherwise expressly provided
herein, the Stockholder hereby irrevocably grants to and appoints
CPT (and any designee thereof) as the Stockholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Stockholder, to (i) represent the
Subject Shares and (ii) vote, execute written consents and
otherwise act (by voting at any meeting of stockholders of Inuvo or
otherwise) with respect to the Subject Shares, in the case of each
of clause (i) and clause (ii), regarding the matters referred
to in Section 1(a) and
Section 1(b)
until, subject to Law, the Termination Date, to the same extent and
with the same effect as the Stockholder could do under Law. The
Stockholder intends the proxy granted pursuant to this Section 1(c) to be
irrevocable and coupled with an interest and hereby revokes any
proxy previously granted by the Stockholder with respect to the
Subject Shares. The Stockholder hereby ratifies and confirms all
actions that the proxy appointed hereunder may lawfully do or cause
to be done in accordance with this Agreement. Notwithstanding the
foregoing, this proxy shall automatically be revoked on the
Termination Date. CPT may terminate this proxy with respect to the
Stockholder at any time at its sole election by written notice
provided to the Stockholder. The parties acknowledge and agree that
neither CPT, nor any of its Affiliates, shall owe any duty
(fiduciary or otherwise), or incur any liability of any kind to the
Stockholder or any of its Affiliates, in connection with or as a
result of the exercise of the powers granted to CPT by this
Section 1(c).
(d) The
Stockholder shall use his, her, or its, reasonable best efforts to
ensure that all Jointly Owned Shares are voted in accordance with
this Agreement and are otherwise subject to its terms and
restrictions, including but not limited to the restrictions set
forth in Sections 4 and
5.
(e) The
following capitalized terms, as used in this Agreement, shall have
the meanings set forth below:
(i)
“Beneficial
Owner” shall be interpreted in accordance with the
term “beneficial owner” as defined in Rule 13d-3
adopted by the SEC under the Exchange Act; provided that notwithstanding the
generality of the foregoing, for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of
any securities which such Person has, at any time during the term
of this Agreement, the right to acquire pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is
exercisable immediately or only after the passage of time
(including the passage of time in excess of sixty days), the
satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “Beneficial Ownership,”
“Beneficially
Own” and “Beneficially Owned” shall have
correlative meanings.
(ii)
“Company Shares”
means, collectively, each share of common stock, par value $0.001
per share of Inuvo.
(iii)
“Existing
Shares” means, with respect to the Stockholder, the
number of Company Shares Beneficially Owned and/or owned of record
by the Stockholder as of the date hereof, as set forth on
Schedule
A.
3
(iv)
“Jointly Owned
Shares” means any voting shares of capital stock of
Inuvo beneficially owned by the Stockholder as to which the
Stockholder has joint or shared voting power with any other person
or entity, including but not limited to such Stockholder’s
spouse.
(v)
“Subject Shares”
means, with respect to the Stockholder, the Stockholder’s
Existing Shares, together with any Company Shares or other voting
capital stock of Inuvo of which the Stockholder acquires Beneficial
Ownership on or after the date hereof.
2. Representations
and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent, CPT, CPT Merger Sub, Inuvo and
Inuvo Merger Sub with respect to the Stockholder and the
Stockholder’s ownership of the Subject Shares as
follows:
(a) Authority.
The Stockholder has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws relating to or affecting the rights and remedies of
creditors generally and the effect of general principles of equity
(regardless of whether such enforceability is considered in a
Proceeding in equity or at Law). Other than as provided in the
Merger Agreement and except for any filings by the Stockholder with
the Securities and Exchange Commission (the “SEC”), the execution, delivery and
performance by the Stockholder of this Agreement does not require
any action by or in respect of, or any notice, report or other
filing by the Stockholder with or to, or any consent, registration,
approval, permit or authorization from, any Governmental Entity
other than any actions or filings the absence of which would not
reasonably be expected to prevent, materially delay or materially
impair the consummation of the transactions contemplated by the
Merger Agreement or the Stockholder’s ability to observe and
perform the Stockholder’s obligations hereunder.
(b) No
Conflicts. Assuming compliance with the matters referred to
in Section 2(a), neither the
execution and delivery of this Agreement, nor the consummation of
the transactions contemplated hereby, nor compliance with the terms
hereof, will (with or without notice or the passage of time or
both) violate, conflict with or result in a breach of, or
constitute a default (with or without notice or lapse of time or
both) under the Stockholder’s organizational documents, if
any, or under any Contract of, or Law applicable to, the
Stockholder or to the Stockholder’s property or assets. If
the Stockholder is married and any of the Subject Shares constitute
community property or spousal approval is otherwise necessary for
this Agreement to be legal, binding, and enforceable, this
Agreement has been (or promptly shall be) duly executed and
delivered by, and constitutes a valid and legally binding agreement
of, the Stockholder’s spouse, enforceable in accordance with
its terms.
4
(c) The
Subject Shares. The Stockholder is the sole record and
beneficial owner of, or is a trust or estate that is the sole
record holder of and whose beneficiaries are the sole beneficial
owners of, and has good and marketable title to, all of the
Existing Shares, free and clear of any and all Liens and free of
any other limitation or restriction (including any restriction on
the right to vote, sell or otherwise dispose of any Existing
Shares), except for (i) any such Liens arising hereunder or
under the Merger Agreement, (ii) Liens imposed by federal or
state securities laws, (iii) Liens imposed pursuant to any
written policies of Inuvo with respect to restrictions upon the
trading of securities under applicable securities laws, and
(iv) Liens arising under any contract governing the terms of
any awards granted to such Stockholder pursuant to an incentive
compensation plan other than any of the foregoing that would not
prevent, materially delay or materially impair, the consummation of
the transactions contemplated by the Merger Agreement or the
Stockholder’s ability to observe and perform the
Stockholder’s obligations hereunder. The Stockholder does not
Beneficially Own or own of record any Company Shares other than the
Existing Shares. The Stockholder has, and will have at the time of
each Inuvo Stockholders’ Meeting occurring prior to the
Mergers with respect to the matters covered by Section 1(a), the sole
right to vote and direct the vote of, and to dispose of and direct
the disposition of, the Subject Shares, and none of the Subject
Shares is subject to any agreement, arrangement or restriction with
respect to the Subject Shares that would prevent or delay the
Stockholder’s ability to perform its obligations hereunder.
Other than this Agreement, there are no agreements or arrangements
of any kind, contingent or otherwise, obligating such Stockholder
to Transfer (as defined below), or cause to be Transferred, any of
the Existing Shares, and no Person has any contractual or other
right or obligation to purchase or otherwise acquire any of the
Subject Shares.
(d) Reliance
by Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub.
The Stockholder understands and acknowledges that Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub are entering into the Merger
Agreement in reliance upon the Stockholder’s execution,
delivery and performance of this Agreement and upon the
representations and warranties, covenants and other agreements of
the Stockholder contained in this Agreement.
(e) Litigation.
As of the date hereof, there is no (i) action, proceeding or
investigation pending or threatened against the Stockholder or any
of its Affiliates; or (ii) outstanding order to which the
Stockholder or any of its Affiliates are subject or bound, in each
case, that would reasonably be expected to or seeks to prevent,
materially delay or materially impair the exercise by Parent of its
rights under this Agreement or the performance by the Stockholder
of its obligations under this Agreement.
(f) Other
Agreements. Except for this Agreement, the Stockholder has
not: (i) taken any action that would or would reasonably be
expected to (A) constitute or result in a breach hereof;
(B) make any representation or warranty of the Stockholder set
forth in this Section 2 untrue or
incorrect; or (C) have the effect of preventing or disabling
the Stockholder from performing any of its obligations under this
Agreement; (ii) granted any proxies or powers of attorney, or
any other authorization or consent with respect to any of the
Subject Shares with respect to the matters set forth in
Section 1(a);
or (iii) deposited any of the Subject Shares into a separate
voting trust or entered into a voting agreement or arrangement with
respect to any of the Subject Shares.
(g) Finders
Fees. No broker, investment bank, financial advisor or other
Person is entitled to any broker’s, finder’s, financial
adviser’s or similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or
on behalf of the Stockholder.
(h) Stockholder
Has Adequate Information. The Stockholder acknowledges that
the Stockholder is a sophisticated investor with respect to the
Subject Shares and has adequate information concerning the business
and financial condition of CPT to make an informed decision
regarding the transactions contemplated by this Agreement and has,
independently and without reliance upon any of Parent, CPT, CPT
Merger Sub, Inuvo, and Inuvo Merger Sub, or any Affiliate of any of
the foregoing, and based on such information as the Stockholder has
deemed appropriate, made his or its own analysis and decision to
enter into this Agreement. The Stockholder acknowledges that none
of Parent, CPT, CPT Merger Sub, Inuvo, or Inuvo Merger Sub or any
Affiliate of any of the foregoing has made or is making any
representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. The
Stockholder acknowledges that it has had the opportunity to seek
independent legal advice prior to executing this
Agreement.
5
3. Representations
and Warranties of Parent, CPT, CPT Merger Sub, Inuvo, and Inuvo
Merger Sub. Each of Parent, CPT, CPT Merger Sub, Inuvo, and
Inuvo Merger Sub has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and
delivered by Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger
Sub and constitutes a valid and binding obligation of Parent, CPT,
CPT Merger Sub, Inuvo, and Inuvo Merger Sub enforceable against
Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws relating to or affecting the rights and remedies of
creditors generally and the effect of general principles of equity
(regardless of whether such enforceability is considered in a
Proceeding in equity or at Law). Other than as provided in the
Merger Agreement and any filings by Parent, CPT, CPT Merger Sub,
Inuvo and Inuvo Merger Sub with the SEC, the execution, delivery
and performance by Parent, CPT, CPT Merger Sub, Inuvo and Inuvo
Merger Sub of this Agreement does not require any consent,
approval, authorization or permit of, action by, filing with or
notification to any Governmental Entity, other than any consent,
approval, authorization, permit, action, filing or notification the
failure of which to make or obtain would not, individually or in
the aggregate, be reasonably expected to prevent or materially
delay the consummation of the Mergers.
4. Restrictions
on Transfer of Shares and Proxies. The Stockholder covenants
and agrees that during the period from the date of this Agreement
through the Termination Date, the Stockholder will not, directly or
indirectly, (i) transfer, assign, sell, pledge, encumber,
hypothecate or otherwise dispose of (whether by merger, by
tendering into any tender or exchange offer, by testamentary
disposition, by operation of law or otherwise) or consent to any of
the foregoing (“Transfer”), or cause to be
Transferred, any of the Subject Shares; (ii) grant any proxies
or powers of attorney, or any other authorization or consent with
respect to any or all of its Subject Shares in respect of any
matter addressed by this Agreement; (iii) deposit any of the
Subject Shares into a voting trust or enter into a voting agreement
or arrangement with respect to any of the Subject Shares or grant
any proxy or power of attorney with respect thereto that is
inconsistent with this Agreement, (iv) enter into any Contract with
respect to the Transfer of any Subject Shares; or (v) take any
other action, that would restrict, limit or interfere with the
performance of the Stockholder’s obligations hereunder. The
foregoing restrictions on Transfers of Subject Shares shall not
prohibit any such Transfers by the Stockholder in connection with
the transactions contemplated by the Merger Agreement. Any
purported Transfer of the Subject Shares in violation of this
Section 4
shall be null and void ab
initio.
5. Stop
Transfer; Changes in Subject Shares. The Stockholder hereby
agrees with, and covenants to, CPT and Parent that (a) this
Agreement and the obligations hereunder shall attach to the Subject
Shares and shall be binding upon any Person or entity to which
legal or Beneficial Ownership shall pass, whether by operation of
Law or otherwise, including its successors or assigns; and
(b) such Stockholder shall not request that Inuvo register the
transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any or all of its Subject
Shares. In the event of a stock split, stock dividend or
distribution, or any change in Company Shares by reason of any
split-up, reverse stock split, recapitalization, combination,
reclassification, exchange of Company Shares or the like, the terms
“Existing Shares” and “Subject Shares”
shall be deemed to refer to and include such Company Shares as well
as all such stock splits, dividends and distributions and any
securities into which or for which any or all of such Company
Shares may be converted, changed or exchanged or which are
otherwise received in such transaction.
6
6. Documentation
and Information. The Stockholder hereby (a) consents to
and authorizes the publication and disclosure by CPT, Inuvo, Parent
and/or their respective Affiliates of its identity and holdings of
the Subject Shares and the nature of its commitments and
obligations under this Agreement in any announcement, the Joint
Proxy Statement/Prospectus, the Registration Statement or any other
disclosure document or filing with or notice to a Governmental
Entity in connection with the Mergers or any of the transactions
contemplated by the Merger Agreement, and (b) agrees as
promptly as practicable to give to CPT, Inuvo and Parent any
information it may reasonably require for the preparation of any
such disclosure documents. The Stockholder hereby agrees to as
promptly as practicable notify CPT, Inuvo and Parent of any
required corrections with respect to any written information
supplied by the Stockholder specifically for use in any such
disclosure document, filing or notice if and to the extent that any
shall contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. The
Stockholder hereby agrees to notify CPT and Parent in writing as
promptly as practicable of the number of any additional Subject
Shares or other securities of Inuvo of which the Stockholder
acquires Beneficial Ownership on or after the date hereof. Parent,
CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub each hereby consent
to and authorize the Stockholder and its Affiliates, to the extent
the Stockholder or such Affiliates determine it to be necessary or
advisable under applicable Law, to publish and disclose in all
documents and schedules filed with the SEC (including any amendment
to the Stockholder’s Schedule 13D) and all documents and
schedules filed with the Federal Trade Commission or the Department
of Justice, and any press release or other disclosure document or
filing in connection with the Mergers or any of the transactions
contemplated by the Merger Agreement or this Agreement, a copy of
this Agreement, each of the other party’s identities and the
nature of the Stockholder’s commitments and obligations under
this Agreement.
7. [Intentionally
Omitted.]
8. Termination.
This Agreement shall automatically terminate without further action
upon the earliest to occur of (a) the Effective Time and
(b) the termination of the Merger Agreement in accordance with
its terms (the date and time at which the earliest of clause (a)
and clause (b) occurs being, the “Termination Date”). Upon
termination of this Agreement, no party shall have any further
obligations or liabilities under this Agreement; provided, however, that (i) nothing
set forth in this Section 8 shall relieve
any party from liability for any breach of this Agreement occurring
prior to the termination hereof; and (ii) the provisions of
this Section 8
and Section 10
through Section 19 shall survive
any termination of this Agreement.
9. Further
Assurances. Each party hereto shall execute and deliver such
additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate,
carry out and comply with all of the terms of this Agreement and
the transactions contemplated thereby.
7
10. Notices.
Any notice, request, instruction or other document or communication
to be given to any party hereunder shall be in writing and
delivered personally or sent by registered or certified mail,
postage prepaid, or by facsimile, email or overnight
courier:
if to
Parent, CPT, CPT Merger Sub or Inuvo Merger Sub, to:
ConversionPoint
Technologies, Inc.
000
Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx
Xxxxxxx, CEO
Email:
xxxxxx@xxxxxxxxxxxxxxx.xxx.
with
copies to:
Xxxxxxxx Xxxxxxx
LLP
0 Xxxx
Xxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxx X.
Xxxxxxx, Esq.
Email:
xxxxx.xxxxxxx@xxxxxxxxxxxxxxx.xxx
Facsimile No.:
(000) 000-0000
if to
Inuvo, to:
000
Xxxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Attention: Xxxxxxx
X. Xxxx, Chairman and CEO
Email:
xxxxxxx.xxxx@xxxxx.xxx
with
copies to:
Xxxxxx
Xxxxxx Xxxxxx & Xxxxxx LLP
00
Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX
00000
Attention: Xxxxxx
X. Xxxxxxxxx, Esq.
Email:
xxxxxxxxxx@xxxxxxxxxxxx.xxx
Facsimile No.:
(000) 000-0000
if to
the Stockholder, to:
Xxxxxxx
X. Xxxxxx
000
Xxxx Xxxxxx, # 0000
Xxxxxx
Xxxx, XX 00000
Email:
xxxxxx@xxxxxxxxx.xxx
8
or to
such other persons or addresses as may be designated in writing by
the party to receive such notice as provided above. Any notice,
request, instruction or other document given as provided above
shall be deemed given to the receiving party upon actual receipt,
if delivered personally; five (5) Business Days after deposit in
the mail, if sent by registered or certified mail; upon telephonic
or written confirmation of receipt (excluding out of office
replies) if sent by facsimile or email; or on the next Business Day
after deposit with an overnight courier, if sent by an overnight
courier.
11. Amendment,
Waivers, etc.
(a) Subject
to the provisions of applicable Law, any provision of this
Agreement may be amended or waived prior to the Effective Time if,
but only if, such amendment or waiver is in writing and is signed,
in the case of an amendment, by each party to this Agreement or, in
the case of a waiver, by each party against whom the waiver is to
be effective.
(b) No
failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
Law.
12. Expenses.
All costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or
expense.
13. Binding
Effect; Benefit; Assignment. The provisions of this
Agreement shall be binding upon and shall inure solely to the
benefit of the parties hereto and their respective successors and
assigns and no provision of this Agreement is intended to, and no
provision of this Agreement does, confer any rights, benefits,
remedies, obligations or liabilities hereunder upon any Person
other than the parties hereto and their respective successors and
assigns. No party may assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement without the consent
of each other party hereto.
14. Stockholder
Capacity. The Stockholder is executing and entering into
this Agreement solely in the Stockholder’s capacity as a
stockholder of Inuvo, and not in the Stockholder’s capacity
as a director, officer, employee, agent or consultant of Inuvo.
Notwithstanding anything herein to the contrary, nothing herein
shall in any way restrict a director of Inuvo in the taking of any
actions (or failure to act) in his or her capacity as a
director of Inuvo, or in the exercise of his or her fiduciary
duties as a director of Inuvo, or prevent or be construed to create
any obligation on the part of any director or officer of Inuvo from
taking any action in his or her capacity as such director, and no
action taken solely in the capacity as a director of Inuvo shall be
deemed to constitute a breach of this Agreement.
15. Governing
Law; Jurisdiction.
(a) This
Agreement shall be governed by, and construed in accordance with,
the laws of the State of Nevada, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws
thereof.
9
(b) Each
of the Parties hereto irrevocably and unconditionally agrees that
any legal action or Proceeding with respect to this Agreement and
the rights and obligations arising hereunder, or for recognition
and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder brought by the other
Party hereto or its successors or assigns, shall be brought and
determined exclusively in the Delaware Court of Chancery (or, if
(and only if) the Court of Chancery does not accept jurisdiction
over a particular matter, any court within the State of Delaware).
Each of the Parties hereto hereby irrevocably submits with regard
to any such action or Proceeding for itself and in respect of its
property, generally and unconditionally, to the exclusive personal
jurisdiction of the aforesaid courts and agrees that it will not
bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than
the aforesaid courts. Each of the Parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or Proceeding with respect
to this Agreement, (i) any claim that it is not personally
subject to the jurisdiction of the above-named courts for any
reason, (ii) any claim that it or its property is exempt or
immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and
(iii) to the fullest extent permitted by applicable Law, any
claim that (A) the suit, action or Proceeding in such court is
brought in an inconvenient forum, (B) the venue of such suit,
action or Proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
Each of the Parties hereby agrees that service of any process,
summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 10 shall be effective
service of process for any suit or proceeding in connection with
this Agreement or the transactions contemplated
hereby.
16. WAIVER
OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED BY THE PARTIES IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES
AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 16.
17. Counterparts.
This Agreement may be executed in any number of counterparts, each
such counterpart being deemed to be an original instrument, and all
such counterparts shall together constitute the same
agreement.
10
18. Entire
Agreement. This
Agreement constitutes the entire agreement, and supersedes all
other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect
to the subject matter of this Agreement.
19. Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions of this
Agreement. If any provision of this Agreement, or the application
of such provision to any Person or any circumstance, is invalid or
unenforceable, (a) 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 (b) 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 of such provision, in any other
jurisdiction.
20. Specific
Performance. The Parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the
Parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or
any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity. Each of the
parties agrees that it will not oppose the granting of an
injunction, specific performance and other equitable relief on the
basis that any other party has an adequate remedy at law or that
any award of specific performance is not an appropriate remedy for
any reason at law or in equity. Any party seeking an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement shall not
be required to provide any bond or other security in connection
with any such order or injunction.
21. Joint
Negotiation. The parties have participated jointly in
negotiating and drafting this Agreement. In the event that an
ambiguity or a question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties,
and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision
of this Agreement.
[Remainder
of page intentionally left blank]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
|
|
CONVERSIONPOINT
HOLDINGS, INC.
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
CONVERSIONPOINT
TECHNOLOGIES, INC.
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
By: /s/ Xxxxxxx X.
Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
Chairman and Chief Executive Officer
CPT
MERGER SUB, INC.
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
CPT
CIGAR MERGER SUB, INC.
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
STOCKHOLDER
By: /s/ Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
|
12
SCHEDULE A
Xxxxxxx
& Xxxxxx, LLC holds 2,022,239 shares of common stock of Inuvo,
Inc. on behalf of Xxxxxxx X. Xxxxxx. Such shares are Subject Shares
for purposes of this Agreement.
