SUPPORT AGREEMENT
Exhibit 99.1
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 G. Xxxx Xxxxxxx (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).
(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.
(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.
(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.
(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.
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.
7. [Intentionally
Omitted.]
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
Facsimile No.:
(000)
000-0000
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:
G. Xxxx
Xxxxxxx
000
Xxxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Email:
xxxxxxxxx@xxxxx.xxx
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.
(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.
(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.
(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.
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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/ G. Xxxx
Xxxxxxx
Name:
G. Xxxx Xxxxxxx
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SCHEDULE A
G. Xxxx
Xxxxxxx owns 134,724 shares of common stock of Inuvo,
Inc.