Blueprint





 







Exhibit 4.1


 



EXHIBIT A


 



FORM OF CONVERTIBLE NOTE


 



THE ISSUANCE OF THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS IN RELIANCE ON
EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION REQUIREMENTS.
THIS CONVERTIBLE PROMISSORY NOTE MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH ALL APPLICABLE FEDERAL AND
STATE SECURITIES LAWS.


 



THE OBLIGATIONS OF THE COMPANY UNDER THIS CONVERTIBLE PROMISSORY
NOTE ARE SUBJECT TO THE TERMS OF THAT CERTAIN SUBORDINATION
AGREEMENT DATED AS OF MARCH 28, 2018 BETWEEN INVESTOR AND WESTERN
ALLIANCE BANK.


 



SHARPSPRING, INC.


 



CONVERTIBLE PROMISSORY NOTE


 


	
$8,000,000 

	
 March 28,
2018











FOR
VALUE RECEIVED, SharpSpring, Inc. a Delaware corporation (the
“Company”), hereby promises to pay to SHSP Holdings,
LLC (“Investor”), a Delaware limited liability company,
Eight Million Dollars ($8,000,000) in principal amount together
with interest accrued and unpaid thereon as provided herein.
Interest shall accrue at a rate of 5.0% per annum, beginning on the
date hereof until such principal amount and all accrued but unpaid
interest thereon have been paid or converted into shares of the
Company’s capital stock as provided herein. This Convertible
Promissory Note (this “Note”) is not
secured.


 


1.          Maturity
Date.


 


1.1.           Maturity
Date. The principal amount of this Note shall be due and
payable in full on the fifth anniversary of the date of this Note,
or if such day is not a business day, then on the first business
day thereafter (the “Maturity Date”). Interest under
this Note shall be due and payable on each anniversary of the date
of this Note (each, an “Interest Payment Date”) by the
issuance of an additional convertible promissory note of like tenor
to this Note (each, a “PIK Note” and this Note and any
outstanding PIK Notes, the “Notes”), dated as of the
applicable Interest Payment Date and with a principal amount equal
to the accrued interest being paid by delivery of such PIK Note.
The Company may not prepay any amounts under any of the Notes
without the prior written consent of Investor.


 




 








 






 


1.2.           Company’s
Right to Extend the Maturity Date. The provisions of
Section 1.1
notwithstanding, the Company shall have the right to extend the
Maturity Date for up to six (6) months on up to three separate
occasions (each such six- (6-) month period, an “Extension
Period”). To exercise this extension right for the initial
Extension Period, the Company shall give written notice of such
extension to Investor no later than sixty (60) days prior to the
original Maturity Date. To exercise this extension right during the
first or second Extension Periods, the Company shall give written
notice of such extension to Investor no later than sixty (60) days
prior to the end of such Extension Period. In the event of any such
extension of the Maturity Date, (i) except as otherwise noted, the
term “Maturity Date” as used in this Note shall refer
to the Maturity Date as so extended and (ii) the rate at which
interest shall accrue on the outstanding principal amount of this
Note shall increase during the Extension Periods from five percent
(5%) per annum to ten percent (10%) per annum, subject to any
limitation on such rate under Section 4.6 (which limits the
maximum rate of interest payable hereunder to the maximum rate of
interest payable under applicable law). Investor agrees that it
will not buy or sell any shares of Common Stock, or otherwise take
any other affirmative actions that could impact the price of the
Common Stock, during the six- (6-) month period prior to the
Maturity Date or during any of the Extension Periods.


 



2.            

Conversion of the
Note.






 


2.1.           Voluntary
Conversion by Investor. The principal amount of this Note
and any accrued interest thereon may be converted by Investor, in
whole or in part, into shares of the Company’s common stock,
par value $0.001 per share (“Common Stock”), at any
time prior to the Maturity Date as provided in this Section 2. (The shares of
Common Stock issued or issuable upon conversion of this Note are
referred to herein as the “Conversion
Shares”.)


 


2.2.           Conversion
Shares Issuable Upon Conversion. The number of Conversion
Shares to be issued upon conversion of all or any portion of this
Note shall be equal to (i) the principal amount and accrued but
unpaid interest that is being converted divided by (ii) $7.50 (the
“Conversion Price”) (except as otherwise provided in
Section 2.8(b)).
The Conversion Price is subject to adjustment as provided in
Section
2.5.


 


2.3.           Method
of Conversion. To convert all or any portion of this Note
into Conversion Shares, Investor shall deliver to the Company (i) a
conversion notice in the form attached hereto as Annex I (a
“Conversion Notice”) and (ii) this Note. An election to
convert all or any part of this Note shall be deemed effective, and
Investor shall be deemed to be the holder of record of the
Conversion Shares, at the time the Conversion Notice and this Note
are delivered to the Company (the “Conversion Date”),
regardless of when the Conversion Shares are actually issued. The
amount of interest that will be converted in connection with any
partial conversion of this Note will be equal to the accrued
interest with respect to the principal amount being converted
computed through the Conversion Date. Upon any conversion of this
Note in whole or in part, the Company shall promptly (and in any
event within ten (10) business days) issue and promptly deliver to
Investor, at no cost to Investor, one or more stock certificates
registered in Investor’s name evidencing the Conversion
Shares issued upon such conversion. In lieu of delivering physical
certificates representing the Conversion Shares, provided the
Company’s transfer agent is participating in the Depository
Trust Company (“DTC”) Fast Automated Securities
Transfer (“FAST”) program, upon request of Investor, to
the extent permitted by Law, the Company shall use commercially
reasonable efforts to cause its transfer agent to electronically
transmit such shares issuable upon conversion to Investor by
crediting the account of Investor’s prime broker with DTC
through its Deposit Withdrawal at Custodian system. If only a
portion of this Note is being converted, then the Company shall
deliver to Investor without charge a new Note of like tenor to this
Note registered in the name of Investor with a principal amount
equal to the principal amount that was not converted, and the
accrued interest with respect to such principal amount from the
last Interest Payment Date will remain accrued with respect thereto
and interest will continue to accrue with respect to such principal
amount until the next Interest Payment Date.


 




 

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2.4.           No
Obligation to Issue Fractional Shares. Any fractional shares
that would otherwise be issuable upon conversion of this Note shall
be paid in cash based on the closing price of a share of Common
Stock on the applicable Conversion Date.


 


2.5.           Adjustment
of the Conversion Price. The Conversion Price shall be
subject to adjustment from time to time as follows:


 


(i)           Stock
Splits and Dividends. If at any time while this Note is
outstanding, the number of outstanding shares of Common Stock is
increased by means of a stock split or a stock dividend payable in
shares of Common Stock, or other similar event, then, on the
effective date of such event, the Conversion Price shall be
decreased in proportion to such increase in the number of
outstanding shares of Common Stock. (By way of example, if there
were to be a 2:1 stock split with respect to the Common Stock, the
Conversion Price would be reduced from $7.50 to
$3.75.)


 


(ii)           Reverse
Stock Splits and Share Combinations. If at any time while
this Note is outstanding, the number of outstanding shares of
Common Stock is decreased by means of a reverse stock split or a
stock combination, or other similar event, then, on the effective
date of such event, the Conversion Price shall be increased in
proportion to such decrease in the number of outstanding shares of
Common Stock. (By way of example, if there were to be a 1:2 reverse
stock split with respect to the Common Stock, the Conversion Price
would be increased from $7.50 to $15.00.)


 


2.6.           Other
Adjustments. If the outstanding shares of Common Stock are
converted at any time into another class of securities as a result
of any reclassification, reorganization, merger, consolidation or
similar transaction, then from and after such event, upon the
conversion of the Notes, provision shall be made such that Investor
shall receive such number and kind of securities as Investor would
have received if the conversion had occurred immediately prior to
such reclassification, reorganization, merger, consolidation or
similar transaction and Investor had held the Conversion Shares
issuable upon such conversion at the time of such reclassification,
reorganization, merger, consolidation or similar
transaction.


 




 

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2.7.           Notice
of Adjustments. Whenever the Conversion Price is adjusted
pursuant to Section
2.5 or any adjustment occurs pursuant to Section 2.6, the Company shall
promptly deliver to Investor a notice describing such adjustment in
reasonable detail.


 


2.8.           Conversion
by the Company.


 


(a)           If
the closing price of the Common Stock on the Nasdaq Capital Market
(or, if the Common Stock is not listed for trading on the Nasdaq
Capital Market, on such market as it may be listed for trading) is
greater than 175% of the then applicable Conversion Price for a
period of 120 consecutive trading days, the Company shall have the
right, on at least thirty (30) days’ prior written notice to
Investor, which notice must be given no later than thirty (30) days
after the last day of such period of 120 consecutive trading days,
to convert all outstanding Notes into such number of Conversion
Shares as would be issuable as of the date of delivery of such
notice to Investor (a “Mandatory Conversion”);
provided, however, that in the event of any Mandatory Conversion
prior to the Maturity Date, the Company shall, immediately prior to
such Mandatory Conversion, issue to Investor such additional PIK
Notes as would have been issued hereunder if this Note had remained
outstanding through the Maturity Date (excluding any Extension
Period), and all such PIK Notes shall be converted in connection
with such Mandatory Conversion.


 


(b)           At
the Maturity Date, the Company may, in lieu of paying the
outstanding principal amount of, and any accrued interest on, the
Notes, elect, on at least thirty (30) days’ prior written
notice to Investor, to convert all outstanding Notes into shares of
Common Stock at a Conversion Price equal to 80% of the volume
weighted average closing price of the Common Stock on the Nasdaq
Capital Market (or, if the Common Stock is not listed for trading
on the Nasdaq Capital Market, on such market as it may be listed
for trading) over the thirty (30) trading days prior to and
including the Maturity Date (the “VWA Price”). The
foregoing notwithstanding, Investor shall irrevocably elect in a
writing delivered to the Company no later than 120 days prior to
the Maturity Date, to either (i) convert all of the outstanding
Notes on the Maturity Date, in which case Investor shall deliver
the Notes to the Company prior to the Maturity Date and the Notes
shall be so converted on and as of the Maturity Date in accordance
with Section 2, or
(ii) not convert any of the outstanding Notes on or prior to the
Maturity Date, in which case the Company shall either pay the
outstanding principal amount of, and any accrued interest on, the
Notes in cash on the Maturity Date or convert the outstanding Notes
into shares of Common Stock on and as of the Maturity Date at a
conversion price equal to 80% of the VWA Price as provided
above.


 


(c)           In
the event of any conversion of the Notes by the Company as provided
in this Section
2.8, the Company shall take all such actions under this
Section 2 as it
would have taken if the Notes had been voluntarily converted by
Investor.


 




 

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2.9.           Change
in Control Transactions.


 


(a)           In
the event of any Change in Control Transaction (as defined below)
prior to the Maturity Date, the Company shall, subject to
Section 4.6,
issue to Investor such additional PIK Notes as would have been
issued hereunder if this Note had remained outstanding through the
Maturity Date (excluding any Extension Period).


 


(b)           In
connection with any Change in Control Transaction, Investor shall
have the right, at its option, to either (i) convert the Notes, in
whole or in part in accordance with the terms hereof, into the
shares of stock and other securities, cash or property receivable
upon or deemed to be held by holders of Common Stock in connection
with such Change in Control Transaction, in which case Investor
shall receive such securities, cash or property as Investor would
have been entitled to receive if such conversion had occurred
immediately prior to such Change in Control Transaction and
Investor had held the Conversion Shares issuable upon such
conversion at the time of such Change of Control Transaction or
(ii) require the Company or its successor to pay the outstanding
principal amount of, and all accrued interest on, the Notes
concurrently with the consummation of such Change in Control
Transaction.


 


(c)           As
used in this Note, the term “Change of Control
Transaction” means any transaction in which any
“person” or “group” (within the meaning of
section 13(d) and 14(d)(2) of the 1934 Act) becomes the
“beneficial owner” (as defined in Rule 13d-3 of the
1934 Act), directly or indirectly, of a sufficient number of shares
of all classes of the Company’s stock then outstanding
ordinarily entitled to vote in the election of directors,
empowering such “person” or “group” to
elect a majority of the members of the Company’s Board
Directors, who did not have such power before such
transaction.


 


2.10.                      Notice
of Certain Other Events. If any time while this Note is
outstanding, the Company shall propose to (i) declare a dividend or
other distribution payable in cash with respect to its Common
Stock, or (ii) grant all holders of Common Stock any rights or
warrants to subscribe for or purchase shares of its capital stock,
then, in any such case, the Company shall give Investor at least
ten (10) days prior written notice of the record date for
determining stockholders of record for such event.


 


2.11.                      Reservation
and Issuance of Conversion Shares. The Company shall at all
times keep authorized and reserved and available for issuance, free
of preemptive rights, such number of shares of Common Stock as are
issuable upon conversion of the Notes at any time. If the Company
determines at any time that it does not have a sufficient number of
authorized shares of Common Stock to reserve and keep available for
issuance as described in this Section 2.11, the Company shall
use all commercially reasonable efforts to increase the number of
authorized shares of Common Stock by seeking stockholder approval
for the authorization of such additional shares. The Company shall
take any and all actions to ensure that the Conversion Shares, when
issued in accordance with the terms hereof, will be validly issued,
fully paid for and non-assessable and free from all taxes, liens
and charges with respect to the issue thereof.


 




 

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2.12.                      Limitation
on Conversion. Notwithstanding anything herein to the
contrary, Investor shall not attempt to convert any portion of this
Note, and the Company shall not issue to Investor any Conversion
Shares upon any attempted conversion of this Note, if the number of
shares of Common Stock issuable upon such conversion, plus (i) the
number of Conversion Shares issued prior thereto and (ii) the
number of shares of Common Stock beneficially owned by any
Affiliate of Investor would (x) equal 20% or more of the number of
the outstanding shares of Common Stock (computed in accordance with
the Nasdaq Stock Market Rules) (the “Maximum Number of
Shares”) or (y) represent 20% or more of the total voting
power of the Company’s securities outstanding immediately
after giving effect to such issuance that are entitled to vote on a
matter being voted on by holders of the Common Stock (computed in
accordance with the Nasdaq Stock Market Rules) (the “Maximum
Aggregate Voting Amount”), unless and until the Company
obtains stockholder approval permitting such issuance in accordance
with Nasdaq Stock Market Rule 5635(d) (or any corresponding rule
under any other applicable national securities exchange)
(“Stockholder Approval”). If, in connection with any
attempted conversion of this Note by Investor, the resulting
issuance of Conversion Shares would exceed the Maximum Number of
Shares or the Maximum Aggregate Voting Amount and the Company shall
not have previously obtained Stockholder Approval at the time of
conversion, then the Company shall only issue to Investor such
number of Shares as may be issued below the Maximum Number of
Shares and the Maximum Aggregate Voting Amount. The Company hereby
covenants and agrees to seek Stockholder Approval at the 2018
annual meeting of the Company’s stockholders (the “2018
Annual Stockholders Meeting”) and to cause the
Company’s Board of Directors to make an affirmative
recommendation to the Company’s stockholders in the proxy
statement relating to the 2018 Annual Stockholders Meeting to vote
their shares in favor of Stockholder Approval and to use the
Company’s best efforts to solicit such votes. If Stockholder
Approval is not obtained at the 2018 Stockholders Meeting, the
Company shall call a special meeting of its stockholders to be held
no later than 90 days after the 2018 Annual Stockholders Meeting at
which it shall again seek Stockholder Approval and shall again
cause the Company’s Board of Directors make an affirmative
recommendation to the Company’s stockholders in the proxy
statement relating to such special stockholders meeting to vote
their shares in favor of Stockholder Approval and to use the
Company’s best efforts to solicit such votes. If Stockholder
Approval is not obtained at such special meeting of the
Company’s stockholders, the Company shall continue to call
special meetings of its stockholders at least quarterly until
Stockholder Approval is obtained. If Stockholder Approval is not
obtained in accordance with this Section 2.12 within two years
of the date of this Note and Affiliates of Investor elect to sell
shares of Common Stock held by them in order to permit the
conversion of the Notes without exceeding the Maximum Number of
Shares and the Maximum Voting Amount, the Company will reimburse
such Affiliates for any underwriting commissions and other
reasonable and documented out-of-pocket transaction costs of any
such sales. Any failure to obtain Stockholder Approval at a
stockholders meeting conducted in accordance with this Section 2.12 shall not
constitute an Event of Default under Section 3.1. As used in this
Note, the term “Affiliate” means a person that
directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the
person specified.


 


3.           Events
of Default; Remedies.


 


3.1.           Definition
of Event of Default. Except as set forth in Section 2.12,
each of the following shall constitute an “Event of Default”
hereunder:


 


(a)           The
Company shall fail to issue any PIK Note when due and such failure
is not remedied within ten (10) business days after demand from
Investor;


 


(b)           The
Company shall fail to issue the Conversion Shares (or other
securities) upon and in accordance with terms hereof and such
failure continues for ten (10) business days after demand from
Investor;


 


(c)           The
Company’s Common Stock shall at any time cease to be listed
for trading on the Nasdaq Capital Market or another national
securities exchange;


 




 

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(d)           The
Company shall (i) voluntarily terminate operations or apply for or
consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of the Company or of all
or a substantial part of the assets of the Company, (ii) admit in
writing its inability to pay debts as the debts become due, (iii)
make a general assignment for the benefit of its creditors, (iv)
commence a voluntary case under the Federal Bankruptcy Code (as now
or hereafter in effect), (v) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts,
(vi) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code or applicable
state bankruptcy laws, or (vii take any corporate action for the
purpose of effecting any of the foregoing;


 


(e)           Without
the Company’s application, approval or consent, a proceeding
shall be commenced, in any court of competent jurisdiction, seeking
in respect of the Company for the liquidation, reorganization,
dissolution, winding-up, or composition or readjustment of debt,
the appointment of a trustee, receiver, liquidator, or like relief
in respect of the Company or all or any substantial part of the
assets of the Company, or other like relief in respect of the
Company under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts
and, if the proceeding is being contested in good faith by the
Company, the same shall continue undismissed, or unstayed and in
effect for any period of 90 consecutive days, or an order for
relief against the Company shall be entered in any case under the
Federal Bankruptcy Code or applicable bankruptcy laws;
and


 


(f)           The
Company breaches any material obligation to Investor under that
certain Investors’ Rights Agreement of even date herewith by
and among the Company, Investor, an Affiliate of Investor and
certain management stockholders of the Company (the
“Investors’
Rights Agreement”) and such breach is not remedied within ten
(10) business days after demand from Investor.


 


3.2.           Consequences
of an Event of Default. If any Event of Default (as defined
above) shall occur, then, at any time thereafter while such Event
of Default is continuing, Investor by written notice to the Company
may declare the entire outstanding principal amount of this Note
and all accrued but unpaid interest to be immediately due and
payable. During the continuance of an Event of Default, Investor
shall have recourse to any and all remedies available to it under
applicable law.


 


4.           Miscellaneous.


 


4.1.           Restrictions
on Transfer.


 


(a)           The
issuance of this Note was not registered under the Securities Act
of 1933 or registered or qualified under any applicable state
securities laws in reliance upon exemptions from such registration
and qualification requirements, and the issuance of the Conversion
Shares will also not be so registered or qualified in reliance on
available exemptions. Accordingly, this Note, each PIK Note and any
Conversion Shares shall bear substantially the following
legend:


 


THE
ISSUANCE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER ANY
APPLICABLE STATE SECURITIES LAWS IN RELIANCE ON EXEMPTIONS FROM
SUCH REGISTRATION AND QUALIFICATION REQUIREMENTS. THIS SECURITY MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH ALL
APPLICABLE FEDERAL AND STATE SECURITIES LAWS.


 




 

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(b)           
Investor covenants that it will not sell, pledge, assign or
transfer this Note or any Conversion Shares except in compliance
with all applicable federal and state securities laws.
Notwithstanding the foregoing, the Company shall issue a
certificate evidencing any Conversion Shares without such legend in
connection with any sale of such Conversion Shares that is
registered under the Securities Act or at any other time that such
legend can be removed under applicable securities
laws.


 

(c)         
Investor agrees that (i) it will not transfer this Note, and (ii)
it will not permit transfers of equity interests in Investor to any
person other than the owners of such equity interests as of the
date of this Agreement (the “Investor Owners”), in each
case without the Company’s prior written consent, which
consent may be granted or withheld in the Company’s sole
discretion; provided, however, that no such consent
shall be required (x) for any transfer by Investor to any of its
members or any Affiliate of Investor so long as such transferee(s)
agree to similar restrictions on further transfers, or (y) for any
transfer of equity interests in Investor to any Affiliate of the
Investor Owners; and provided further that, if at any time
Investor reasonably determines upon the advice of Investor’s
outside legal counsel that it is required to transfer this Note to
a third party in order to ensure that Investor and its Affilitates
will be in compliance with any applicable regulatory requirements,
the Company shall not unreasonably withhold, condition or delay its
consent to such transfer, it being agreed that the Company may
reasonaby withhold its consent to any such transfer, without
limitation, if the proposed transferee is the beneficial owner of
three percent (3%) or more of the outstanding shares of Common
Stock immediately prior to such proposed transfer.


 


4.2.           Exchange
of Note. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this
Note, the Company will issue a new Note, of like tenor and
principal amount and dated the date to which interest has been
paid, in lieu of such lost, stolen, destroyed or mutilated Note,
and in such event Investor agrees to indemnify and hold harmless
the Company in respect of any such lost, stolen, destroyed, or
mutilated Note.


 


4.3.           No
Rights as Stockholder. This Note, by itself, does not
entitle Investor to any voting rights or other rights as a
stockholder of the Company and nothing herein shall be construed as
conferring upon Investor the right to vote as a stockholder on any
matter. The foregoing notwithstanding, the Company acknowledges
that Investor has certain additional rights and obligations
pursuant to the terms of the Investors’ Rights
Agreement.


 


4.4.           Notices.
Any notice required or permitted hereunder shall be given in
writing and shall be conclusively deemed effectively given (i) upon
personal delivery, (ii) on the next business day if sent by a
nationally recognized overnight delivery service, (iii) upon
confirmed transmission if sent by facsimile or electronic mail, or
(iv) three business days after deposit if sent by United States
mail, by registered or certified mail, postage prepaid. Any such
notice to either party shall be sent to the address, facsimile
number or electronic mail address set forth below such
party’s name on the signature page of this Note or at such
other address as either party may designate by advance written
notice to the other party.


 




 

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4.5.           Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws or choice of
laws.


 


4.6.           Severability.
If any provision of this Note is held by a court of competent
jurisdiction to be excessive in scope or otherwise invalid or
unenforceable, such provision shall be adjusted rather than voided,
if possible, so that it is enforceable to the maximum extent
possible, and the validity and enforceability of the remaining
provisions of this Note will not in any way be affected or impaired
thereby. In no event shall the amount of interest paid hereunder
exceed the maximum rate of interest on the unpaid principal balance
hereof allowable by applicable law. If any sum is collected in
excess of the applicable maximum rate, the excess collected shall
be applied to reduce the principal debt. If the interest actually
collected hereunder is still in excess of the applicable maximum
rate, the interest rate shall be reduced so as not to exceed the
maximum allowable under law.


 


4.7.           Jurisdiction
and Venue. Any action, proceeding or claim arising out of,
or relating in any way to this Note shall be brought and enforced
in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York. The
Company and Investor irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive and hereby waive any objection to
such exclusive jurisdiction or that such courts represent an
inconvenient forum. The prevailing party in any such action shall
be entitled to recover its reasonable and documented
attorneys’ fees and out-of-pocket expenses relating to such
action or proceeding.


 


4.8.           WAIVER
OF RIGHT TO JURY TRIAL. THE COMPANY AND INVESTOR HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE.


 


4.9.           Waiver
of Presentment, etc. The Company hereby waives presentment,
protest, notice of protest, demand for payment, notice of dishonor
or nonpayment and any and all other notices or demands in
connection with the delivery, acceptance, performance, default, or
enforcement of this Note. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or
enforceability of any other provision.


 


4.10.        
Costs of
Collection. The Company shall, subject only to any
limitation imposed by applicable law, pay all expenses, including
reasonable attorneys’ fees, incurred by Investor in
endeavoring to collect any amounts payable hereunder which are not
paid when due.


 


4.11.        
Amendments and
Waivers. No provision of this Note may be amended other than
by an instrument in writing signed by the party against which such
amendment is to be enforced. No provision of this Note may be
waived other than by an instrument n writing signed by the party
against which enforcement of such provision is sought.


 


4.12.        
Successors and
Assigns. This Note shall be binding upon, and inure to the
benefit of and be enforceable by, the Company and Investor and
their respective successors and assigns.


 

 


 [Remainder of
page intentionally left blank. Signature page
follows.]


 


 


 


 




 

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IN
WITNESS WHEREOF, each of the undersigned has caused this instrument
to be executed by its duly authorized officers as of the date first
above written.

 

 


THE
COMPANY:


 


SHARPSPRING,
INC.


 


By:
/s/ 
         
                 
            
 


 

Name: 
         
                 
            
 


 

Title:   


         
                 
            
 


 


Notice Address:


 


550 SW
2nd Avenue


Gainesville, FL
32601


Facsimile:
(___)                                  




Attention:
Richard A.
Carlson


 


 


ACCEPTED AND
AGREED:


 


INVESTOR:


 


SHSP
HOLDINGS, LLC


 


By:
/s/ 
         
                 
            
 


 

Name: 
         
                 
            
 


 

Title:   


         
                 
            
 


 

Notice Address:

 



228 Park Avenue South



Suite 90959



New York, New York 10003

Facsimile:
(___)                                 


Attention:           
                 
           
 



 




 

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Annex I


 



Form of Conversion Notice


 


Reference is made
to that certain Convertible Promissory Note (the
“Note”) issued by SharpSpring, Inc., a Delaware
corporation (the “Company”), pursuant to that certain
Convertible Note Purchase Agreement dated as of March 28, 2018
between the undersigned and the Company. Defined terms used below
have the meaning given to them in the Note.


 


The
undersigned hereby elects to convert $_________ in principal amount
of the Note being tendered herewith, together with all accrued but
unpaid interest thereon through the Conversion Date, to acquire
such number of Conversion Shares as are issuable upon such
conversion as provided under the terms of the Note.


 


Please
issue the Conversion Shares in the name of the undersigned and, if
applicable, please issue a new Note (also registered in the name of
the undersigned) representing any principal amount of the Notes
tendered herewith that is not being converted into
Shares.


 



                                                           
       
   



[Print
or Type Name of Investor Above]*


 



By:                                                                 





 



Name                                                                          







 



Title:                                                                         








 


Address
to which shares should be delivered or account and DTC
participation information for DWAC:


 


 








                                                           
        






 












                                                           
        






 






                                                           
        






 













                                                           
        






 





 


 


* The
signature to this form must correspond with the name as written
upon the face of the Note(s) being converted without alteration or
enlargement or any change whatsoever.


 




 

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