Blueprint





 







Exhibit 10.1


 



PURCHASE AGREEMENT


 


THIS
PURCHASE AGREEMENT (“Agreement”) is made as of the
20th day
of November, 2019 by and among SharpSpring, Inc., a Delaware
corporation (the “Company”), and the Investors set
forth on the signature pages affixed hereto (each an
“Investor” and collectively the
“Investors”).


 



Recitals


 


A.           The
Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities
registration afforded by the provisions of Regulation D
(“Regulation D”), as promulgated by the U.S. Securities
and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended; and


 


B.           The
Investors wish to purchase, severally and not jointly, from the
Company, and the Company wishes to sell and issue to the Investors,
upon the terms and conditions stated in this Agreement, an
aggregate of 555,556 shares (the “Shares”) of the
Company’s Common Stock, par value $0.001 per share (together
with any securities into which such shares may be reclassified,
whether by merger, charter amendment or otherwise, the
“Common Stock”), at purchase price of $9.00 per Share
(the “Per Share Price”), for an aggregate purchase
price of Five Million Four Dollars ($5,000,004) (the
“Purchase Price”); and


 


C.           Contemporaneously
herewith, the parties hereto are executing and delivering a
Registration Rights Agreement, in the form attached hereto as
Exhibit A (the
“Registration Rights Agreement”), pursuant to which the
Company will agree to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and applicable state securities
laws.


 


D.           The
Company has entered into an Asset Purchase Agreement in the form
attached hereto as Exhibit
B (the “Asset Purchase Agreement”), pursuant to
which the Company will, on or prior to the Closing (as defined
below), acquire (the “Acquisition”) from Marin Software
Incorporated (“Seller”) substantially all of the assets
and assume certain liabilities of the Seller’s Perfect
Audience business (the “Target”) for aggregate
consideration not to exceed Five Million Dollars ($5,000,000) (the
“Acquisition Consideration”);


 


In
consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:


 


1.           Definitions.
In addition to those terms defined above and elsewhere in this
Agreement, for the purposes of this Agreement, the following terms
shall have the meanings set forth below:


 



 

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“Acquisition Documents”
means the Asset Purchase Agreement, the Services Agreement in
substantially the form attached as exhibits to the Asset Purchase
Agreement, and any related ancillary documents entered into by the
Company or any Subsidiary in connection with the
Acquisition.


 


“Acquisition Transactions”
means the Acquisition and the other transactions contemplated by
the Asset Purchase Agreement and the other Acquisition
Documents.


 


“Affiliate” means, with
respect to any Person, any other Person which directly or
indirectly through one or more intermediaries Controls, is
controlled by, or is under common Control with, such
Person.


 


“Business Day” means a
day, other than a Saturday or Sunday, on which banks in New York
City are open for the general transaction of business.


 


“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would
entitle the holder thereof to acquire at any time Common Stock,
including without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time
convertible into, exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock.


 


“Company’s
Knowledge” means the actual knowledge of the executive
officers (as defined in Rule 405 under the 1933 Act) of the
Company, after due inquiry.


 


“Confidential Information”
means trade secrets, confidential information and know-how
(including but not limited to ideas, formulae, compositions,
processes, procedures and techniques, research and development
information, computer program code, performance specifications,
support documentation, drawings, specifications, designs, business
and marketing plans, and customer and supplier lists and related
information).


 


“Control” (including the
terms “controlling”, “controlled by” or
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or
otherwise.


 


“Effective Date” means the
date on which the Registration Statement is declared effective by
the SEC.


 


“Effectiveness Deadline”
means the date on which the Registration Statement is required to
be declared effective by the SEC under the terms of the
Registration Rights Agreement.


 


“Insider” means each
director or executive officer of the Company, any other officer of
the Company participating in the offering, any beneficial owner of
20% or more of the Company’s outstanding voting equity
securities, calculated on the basis of voting power, and any
promoter connected with the Company in any capacity on the date
hereof.




 

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“Intellectual Property”
means all of the following: (i) patents, patent applications,
patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); (ii) trademarks, service
marks, trade dress, trade names, corporate names, logos, slogans
and Internet domain names, together with all goodwill associated
with each of the foregoing; (iii) copyrights and copyrightable
works; (iv) registrations, applications and renewals for any of the
foregoing; and (v) proprietary computer software (including but not
limited to data, data bases and documentation).


 


“Material Adverse Effect”
means a material adverse effect on (i) the assets, liabilities,
results of operations, condition (financial or otherwise),
business, or prospects of the Company and its Subsidiaries taken as
a whole, or (ii) the ability of the Company or any Subsidiary, as
the case may be, to perform its obligations under the Acquisition
Documents and the Transaction Documents.


 


“Material Contract” means
the Acquisition Documents and any contract, instrument or other
agreement to which the Company or any Subsidiary is a party or by
which it is bound which is material to the business of the Company
and its Subsidiaries, taken as a whole, including those that have
been filed or were required to have been filed as an exhibit to the
SEC Filings pursuant to Item 601(b)(4) or Item 601(b)(10) of
Regulation S-K.


 


“Nasdaq” means The Nasdaq
Global Market.


 


“Person” means an
individual, corporation, partnership, limited liability company,
trust, business trust, association, joint stock company, joint
venture, sole proprietorship, unincorporated organization,
governmental authority or any other form of entity not specifically
listed herein.


 


“Registration Statement”
has the meaning set forth in the Registration Rights
Agreement.


 


“Required Investors” means
(i) prior to Closing each of the Investors party hereto and (ii)
from and after the Closing, (A) each Investor, who, together with
its Affiliates, beneficially owns (calculated in accordance with
Rule 13d-3 under the 1934 Act) at least 25% of the Shares and (B)
the Investors who, together with their Affiliates, beneficially own
(calculated in accordance with Rule 13d-3 under the 1934 Act) at
least a majority of the Shares then owned by the
Investors.


 


“SEC Filings” has the
meaning set forth in Section 4.6.


 


“Subsidiary” of any Person
means another Person, an amount of the voting securities, other
voting ownership or voting partnership interests of which is
sufficient to elect at least a majority of its Board of Directors
or other governing body (or, if there are no such voting interests,
50% or more of the equity interests of which) is owned directly or
indirectly by such first Person.


 




 

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“Transaction Documents”
means this Agreement and the Registration Rights
Agreement.


 


“1933 Act” means the
Securities Act of 1933, as amended, or any successor statute, and
the rules and regulations promulgated thereunder.


 


“1934 Act” means the
Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated
thereunder.


 


2.           Purchase
and Sale of the Shares. Subject to the terms and conditions
of this Agreement, on the Closing Date, each of the Investors shall
severally, and not jointly, purchase, and the Company shall sell
and issue to each Investor, the Shares in the amount set forth
opposite such Investor’s name on the signature pages attached
hereto in exchange for the portion of the Purchase Price equal to
the Per Share Price multiplied by the number of Shares to be
purchased by such Investor as specified in Section 3
below.


 


3.           Closing.
Unless other arrangements have been made with a particular
Investor, upon confirmation that the other conditions to closing
specified herein have been satisfied or duly waived by the
Investors, the Company shall deliver to Lowenstein Sandler LLP, in
trust, a certificate or certificates, registered in such name or
names as the Investors may designate, representing the Shares, with
instructions that such certificates are to be held for release to
the Investors only upon payment in full of the Purchase Price to
the Company by all the Investors. Unless other arrangements have
been made with a particular Investor, upon such receipt by
Lowenstein Sandler LLP of the certificates, each Investor shall
promptly, but no more than one Business Day thereafter, cause a
wire transfer in same day funds to be sent to the account of the
Company as instructed in writing by the Company, in an amount
representing such Investor’s pro rata portion of the Purchase
Price as set forth on the signature pages to this Agreement. On the
date (the “Closing Date”) the Company receives the
Purchase Price, the certificates evidencing the Shares shall be
released to the Investors (the “Closing”). The Closing
of the purchase and sale of the Shares shall take place at the
offices of Lowenstein Sandler LLP, 1251 Avenue of the Americas,
18th Floor, New York, New York 10020, or at such other location and
on such other date as the Company and the Investors shall mutually
agree.


 


4.           Representations
and Warranties of the Company. The Company hereby represents
and warrants to the Investors that, except as set forth in the
schedules delivered herewith (collectively, the “Disclosure
Schedules”):


 


4.
1                 Organization,
Good Standing and Qualification. Each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority
to carry on its business as now conducted and to own or lease its
properties. Each of the Company and its Subsidiaries is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property makes such qualification or
leasing necessary unless the failure to so qualify or to be in good
standing has not had and could not reasonably be expected to have a
Material Adverse Effect. The Company’s Subsidiaries are
listed on Schedule
4.1 hereto.


 


4.2                 Authorization.
The Company has full power and authority and has taken, or caused
one or more of its Subsidiaries to take, all requisite action on
the part of the Company, such Subsidiaries, and their respective
officers, directors and stockholders necessary for (i) the
authorization, execution and delivery of the Acquisition Documents
and the Transaction Documents, (ii) the authorization of the
performance of all obligations of the Company and such Subsidiaries
hereunder and thereunder, and (iii) the authorization, issuance and
delivery of the Shares and the consummation of the Acquisition
Transactions. The Acquisition
Documents and the Transaction Documents constitute, or upon the
execution and delivery thereof by the Company or the Subsidiary
party thereto will constitute, the legal, valid and binding
obligations of the Company or such Subsidiary, enforceable against
the Company or the Subsidiary party thereto, as the case may be, in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability, relating to or affecting creditors’
rights generally and to general equitable principles.


 


4.3                 Capitalization.
The SEC Filings set forth, as of their respective dates (to the
extent applicable) (a) the authorized capital stock of the Company;
(b) the number of shares of capital stock issued and outstanding;
(c) the number of shares of capital stock issuable pursuant to the
Company’s stock plans; and (d) the number of shares of
capital stock issuable and reserved for issuance pursuant to
securities (other than the Shares) exercisable for, or convertible
into or exchangeable for any shares of capital stock of the
Company. All of the issued and outstanding shares of the
Company’s capital stock have been duly authorized and validly
issued and are fully paid, nonassessable and free of pre-emptive
rights and were issued in compliance in all material respects with
applicable state and federal securities law and any rights of third
parties. All of the issued and outstanding shares of capital stock
of each Subsidiary have been duly authorized and validly issued and
are fully paid, nonassessable and free of pre-emptive rights, were
issued in full compliance with applicable state and federal
securities law and any rights of third parties and are owned by the
Company, beneficially and of record, subject to no lien,
encumbrance or other adverse claim, except as described in the SEC
Filings. No Person is entitled to pre-emptive or similar statutory
or contractual rights with respect to any securities of the
Company. Except as described in the SEC Filings, there are no
outstanding warrants, options, convertible securities or other
rights, agreements or arrangements of any character under which the
Company or any of its Subsidiaries is or may be obligated to issue
any equity securities of any kind and except as contemplated by
this Agreement, neither the Company nor any of its Subsidiaries is
currently in negotiations for the issuance of any equity securities
of any kind. Except for the Registration Rights Agreement, there
are no voting agreements, buy-sell agreements, option or right of
first purchase agreements or other agreements of any kind among the
Company and any of the securityholders of the Company relating to
the securities of the Company held by them. Except as provided in
the Registration Rights Agreement, no Person has the right to
require the Company to register any securities of the Company under
the 1933 Act, whether on a demand basis or in connection with the
registration of securities of the Company for its own account or
for the account of any other Person.


 


The
issuance and sale of the Shares hereunder will not obligate the
Company to issue shares of Common Stock or other securities to any
other Person (other than the Investors) and will not result in the
adjustment of the exercise, conversion, exchange or reset price of
any outstanding security.


 


The
Company does not have outstanding stockholder purchase rights or
“poison pill” or any similar arrangement in effect
giving any Person the right to purchase any equity interest in the
Company upon the occurrence of certain events.


 


4.4                 Valid
Issuance. The Shares have been duly and validly authorized
and, when issued and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, and shall be free and
clear of all encumbrances and restrictions (other than those
created by the Investors), except for restrictions on transfer set
forth in the Transaction Documents or imposed by applicable
securities laws.


 


4.5                 Consents.
The execution, delivery and
performance by the Company or its Subsidiaries, as the case may be,
of the Acquisition Documents and the Transaction Documents, the
consummation of the Acquisition Transactions, and the offer,
issuance and sale of the Shares require no consent of, action by or
in respect of, or filing with, any Person, governmental body,
agency, or official other than filings that have been made pursuant
to applicable state securities laws and post-sale filings pursuant
to applicable state and federal securities laws which the Company
undertakes to file within the applicable time periods. Subject to
the accuracy of the representations and warranties of each Investor
set forth in Section 5 hereof, the Company has taken all action
necessary to exempt (i) the issuance and sale of the Shares, and
(ii) the other transactions contemplated by the Transaction
Documents from the provisions of any applicable stockholder rights
plan or other “poison pill” arrangement, any
anti-takeover, business combination or control share law or statute
binding on the Company or to which the Company or any of its assets
and properties may be subject and any provision of the
Company’s Certificate of Incorporation or Bylaws that is or
could reasonably be expected to become applicable to the Investors
as a result of the transactions contemplated hereby, including
without limitation, the issuance of the Shares and the ownership,
disposition or voting of the Shares by the Investors or the
exercise of any right granted to the Investors pursuant to this
Agreement or the other Transaction Documents.


 


4.6                 Delivery
of SEC Filings; Business. The Company has made available to
the Investors through the EDGAR system, true and complete copies of
the Company’s most recent Annual Report on Form 10-K for the
fiscal year ended December 31, 2018 (the “10-K”), and
all other reports filed by the Company pursuant to the 1934 Act
since December 31, 2018 and prior to the date hereof (collectively,
the “SEC Filings”). The SEC Filings are the only
filings required of the Company pursuant to the 1934 Act for such
period. The Company and its Subsidiaries are engaged in all
material respects only in the business described in the SEC Filings
and the SEC Filings contain a complete and accurate description in
all material respects of the business of the Company and its
Subsidiaries, taken as a whole. Since the filing of each of the SEC
Filings, no event has occurred that would require an amendment or
supplement to any such SEC Filing and as to which such an amendment
or supplement has not been filed prior to the date
hereof.


 




 

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4.7                 Use
of Proceeds. The net proceeds of the sale of the Shares
hereunder shall be used by the Company to pay the Acquisition
Consideration and, to the extent of any excess, for general
corporate purposes.


 


4.8                 No
Material Adverse Change. Since December 31, 2018, except as
identified and described in the SEC Filings or as previously
disclosed to the Investors and to be publicly disclosed prior to or
in the Press Release (as defined in Section 9.7), there has not
been:


 


(i)           any
change in the consolidated assets, liabilities, financial condition
or operating results of the Company from that reflected in the
financial statements included in the Company’s Quarterly
Report on Form 10-Q for the quarter ended June 30, 2019, except as
contemplated by the Acquisition Transactions and except for changes
in the ordinary course of business which have not had and could not
reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate;


 


(ii)           any
declaration or payment of any dividend, or any authorization or
payment of any distribution, on any of the capital stock of the
Company, or any redemption or repurchase of any securities of the
Company;


 


(iii)           any
material damage, destruction or loss, whether or not covered by
insurance to any assets or properties of the Company or its
Subsidiaries;


 


(iv)           any
waiver, not in the ordinary course of business, by the Company or
any Subsidiary of a material right or of a material debt owed to
it;


 


(v)           any
satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company or a Subsidiary, except in
the ordinary course of business and which is not material to the
assets, properties, financial condition, operating results or
business of the Company and its Subsidiaries taken as a whole (as
such business is presently conducted and as it is proposed to be
conducted);


 


(vi)           any
change or amendment to the Company’s Certificate of
Incorporation or Bylaws, or material change to any material
contract or arrangement by which the Company or any Subsidiary is
bound or to which any of their respective assets or properties is
subject;


 


(vii)           any
material labor difficulties or labor union organizing activities
with respect to employees of the Company or any
Subsidiary;


 


(viii)                      Except
as contemplated by the Acquisition Documents and the Transaction
Documents, any material transaction entered into by the Company or
a Subsidiary other than in the ordinary course of
business;


 


(ix)           the
loss of the services of any executive officer, other key employee,
or material change in the composition or duties of the senior
management of the Company or any Subsidiary;




 

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(x)           the
loss or threatened loss of any customer which has had or could
reasonably be expected to have a Material Adverse Effect;
or


 


(xi)           any
other event or condition of any character that has had or could
reasonably be expected to have a Material Adverse
Effect.


 


4.9                 SEC
Filings; S-3 Eligibility.


 


(a)           At
the time of filing thereof, the SEC Filings complied as to form in
all material respects with the requirements of the 1934 Act and did
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements made therein, in the light of the
circumstances under which they were made, not
misleading.


 


(b)           Each
registration statement and any amendment thereto filed by the
Company since January 1, 2016 pursuant to the 1933 Act and the
rules and regulations thereunder, as of the date such statement or
amendment became effective, complied as to form in all material
respects with the 1933 Act and did not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements made
therein not misleading; and each prospectus filed pursuant to Rule
424(b) under the 1933 Act, as of its issue date and as of the
closing of any sale of securities pursuant thereto did not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements made therein, in the light of the
circumstances under which they were made, not
misleading.


 


(c)           The
Company is eligible to use Form S-3 to register the Registrable
Securities (as such term is defined in the Registration Rights
Agreement) for sale or other disposition by the Investors as
contemplated by the Registration Rights Agreement.


 


4.10                 No
Conflict, Breach, Violation or Default. The execution,
delivery and performance of the Acquisition Documents and the
Transaction Documents by the Company or the Subsidiaries party
thereto, as the case may be, the consummation of the Acquisition
Transactions and the issuance and sale of the Shares will not (i)
conflict with or result in a breach or violation of (a) any of the
terms and provisions of, or constitute a default under the
Company’s Certificate of Incorporation or the Company’s
Bylaws, both as in effect on the date hereof (true and complete
copies of which have been made available to the Investors through
the EDGAR system), or (b) any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, any Subsidiary or any of
their respective assets or properties, except for such conflicts,
breaches or violations as have not had and could not reasonably be
expected to have a Material Adverse Effect, individually or in the
aggregate, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, result in the creation of any lien, encumbrance or
other adverse claim upon any of the properties or assets of the
Company or any Subsidiary or give to others any rights of
termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any Material Contract,
except for such as have not had and could not reasonably be
expected to have a Material Adverse Effect, individually or in the
aggregate.


 




 

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4.11                 Tax
Matters. The Company and each Subsidiary has timely prepared
and filed all tax returns required to have been filed by the
Company or such Subsidiary with all appropriate governmental
agencies and timely paid all taxes shown thereon or otherwise owed
by it, other than taxes being contested in good faith and for which
adequate reserves have been made on the Company’s financial
statements included in the SEC Filings. The charges, accruals and
reserves on the books of the Company in respect of taxes for all
fiscal periods are adequate in all material respects, and there are
no material unpaid assessments against the Company or any
Subsidiary nor, to the Company’s Knowledge, any basis for the
assessment of any additional taxes, penalties or interest for any
fiscal period or audits by any federal, state or local taxing
authority except for any assessment which is not material to the
Company and its Subsidiaries, taken as a whole. All taxes and other
assessments and levies that the Company or any Subsidiary is
required to withhold or to collect for payment have been duly
withheld and collected and paid to the proper governmental entity
or third party when due, other than taxes being contested in good
faith and for which adequate reserves have been made on the
Company’s financial statements included in the SEC Filings.
There are no tax liens or claims pending or, to the Company’s
Knowledge, threatened against the Company or any Subsidiary or any
of their respective assets or property. There are no outstanding
tax sharing agreements or other such arrangements between the
Company and any Subsidiary or other corporation or
entity.


 


4.12                 Title
to Properties. Except as disclosed in the SEC Filings, the
Company and each Subsidiary has good and marketable title to all
real properties and all other properties and assets owned by it, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or currently planned to be made thereof by them; and
except as disclosed in the SEC Filings, the Company and each
Subsidiary holds any leased real or personal property under valid
and enforceable leases with no exceptions that would materially
interfere with the use made or currently planned to be made thereof
by them.


 


4.13                 Certificates,
Authorities and Permits. The Company and each Subsidiary
possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct
the business now operated by it, except where the failure to so
possess has not had and could not reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate, and
neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or such Subsidiary, could reasonably be expected to
have a Material Adverse Effect, individually or in the
aggregate.


 


4.14                 Labor
Matters.


(a)           The
Company is not a party to or bound by any collective bargaining
agreements or other agreements with labor organizations. The
Company has not violated in any material respect any laws,
regulations, orders or contract terms, affecting the collective
bargaining rights of employees, labor organizations or any laws,
regulations or orders affecting employment discrimination, equal
opportunity employment, or employees’ health, safety,
welfare, wages and hours.


(b)           (i)
There are no labor disputes existing, or to the Company’s
Knowledge, threatened, involving strikes, slow-downs, work
stoppages, job actions, disputes, lockouts or any other disruptions
of or by the Company’s employees, (ii) there are no unfair
labor practices or petitions for election pending or, to the
Company’s Knowledge, threatened before the National Labor
Relations Board or any other federal, state or local labor
commission relating to the Company’s employees, (iii) no
demand for recognition or certification heretofore made by any
labor organization or group of employees is pending with respect to
the Company and (iv) to the Company’s Knowledge, the Company
enjoys good labor and employee relations with its employees and
labor organizations.


(c)           The
Company is, and at all times has been, in compliance with all
applicable laws respecting employment (including laws relating to
classification of employees and independent contractors) and
employment practices, terms and conditions of employment, wages and
hours, and immigration and naturalization, except for such
instances of non-compliance as have not had and could not
reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate. There are no claims pending
against the Company before the Equal Employment Opportunity
Commission or any other administrative body or in any court
asserting any violation of Title VII of the Civil Rights Act of
1964, the Age Discrimination Act of 1967, 42 U.S.C. §§
1981 or 1983 or any other federal, state or local Law, statute or
ordinance barring discrimination in employment.


(d)           Except
as disclosed in the SEC Filings, the Company is not a party to, or
bound by, any employment or other contract or agreement that
contains any severance, termination pay or change of control
liability or obligation, including, without limitation, any
“excess parachute payment,” as defined in Section
280G(b) of the Internal Revenue Code.


 


(e)           To
the Company’s Knowledge, each employee of the Company and its
Subsidiaries located in the United States is a Person who is either
a United States citizen or a permanent resident entitled to work in
the United States. To the Company’s Knowledge, neither the
Company nor any Subsidiary has any liability for the improper
classification of any such employee as an independent contractor or
leased employee.


 


4.15                 Intellectual
Property.


 


(a)           All
Intellectual Property of the Company and its Subsidiaries is
currently in compliance in all material respects with all legal
requirements (including timely filings, proofs and payments of
fees) and is valid and enforceable. No Intellectual Property of the
Company or its Subsidiaries which is necessary for the conduct of
Company’s and each of its Subsidiaries’ respective
businesses as currently conducted or as currently proposed to be
conducted has been or is now involved in any cancellation, dispute
or litigation, and, to the Company’s Knowledge, no such
action is threatened. No patent of the Company or its Subsidiaries
has been or is now involved in any interference, reissue,
re-examination or opposition proceeding.


 


(b)           All
of the licenses and sublicenses and consent, royalty or other
agreements concerning Intellectual Property which are necessary for
the conduct of the Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or
as currently proposed to be conducted to which the Company or any
Subsidiary is a party or by which any of their assets are bound
(other than  generally commercially available, non-custom,
off-the-shelf software application programs having a retail
acquisition price of less than $10,000 per license) (collectively,
“License Agreements”) are valid and binding obligations
of the Company or its Subsidiaries that are parties thereto and, to
the Company’s Knowledge, the other parties thereto,
enforceable in accordance with their terms, except to the extent
that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar
laws affecting the enforcement of creditors’ rights
generally, and there exists no event or condition which will result
in a violation or breach of or constitute (with or without due
notice or lapse of time or both) a default by the Company or any of
its Subsidiaries under any such License Agreement, except for such
violations, breaches and defaults as have not had and could not
reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate.


 


(c)           The
Company and its Subsidiaries own or have the valid right to use all
of the Intellectual Property that is necessary for the conduct of
the Company’s and each of its Subsidiaries’ respective
businesses as currently conducted or as currently proposed to be
conducted and for the ownership, maintenance and operation of the
Company’s and its Subsidiaries’ properties and assets,
free and clear of all liens, encumbrances, adverse claims or
obligations to license all such owned Intellectual Property and
Confidential Information, other than licenses entered into in the
ordinary course of the Company’s and its Subsidiaries’
businesses. The Company and its Subsidiaries have a valid and
enforceable right to use all third party Intellectual Property and
Confidential Information used or held for use in the respective
businesses of the Company and its Subsidiaries.


 


(d)           The
conduct of the Company’s and its Subsidiaries’
businesses as currently conducted does not infringe or otherwise
impair or conflict with (collectively, “Infringe”) any
Intellectual Property rights of any third party or any
confidentiality obligation owed to a third party, and, to the
Company’s Knowledge, the Intellectual Property and
Confidential Information of the Company and its Subsidiaries which
are necessary for the conduct of Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or
as currently proposed to be conducted are not being Infringed by
any third party. There is no litigation or order pending or
outstanding or, to the Company’s Knowledge, threatened or
imminent, that seeks to limit or challenge or that concerns the
ownership, use, validity or enforceability of any Intellectual
Property or Confidential Information of the Company and its
Subsidiaries and the Company’s and its Subsidiaries’
use of any Intellectual Property or Confidential Information owned
by a third party, and, to the Company’s Knowledge, there is
no valid basis for the same.


 


(e)           The
consummation of the Acquisition Transactions and the transactions
contemplated hereby and by the other Transaction Documents will not
result in the alteration, loss, impairment of or restriction on the
Company’s or any of its Subsidiaries’ ownership or
right to use any of the Intellectual Property or Confidential
Information which is necessary for the conduct of Company’s
and each of its Subsidiaries’ respective businesses as
currently conducted or as currently proposed to be
conducted.




 

7








 






 


(f)           The
Company and its Subsidiaries have taken reasonable steps to protect
the Company’s and its Subsidiaries’ rights in their
Intellectual Property and Confidential Information. Each employee,
consultant and contractor who has had access to Confidential
Information which is necessary for the conduct of Company’s
and each of its Subsidiaries’ respective businesses as
currently conducted or as currently proposed to be conducted has
executed an agreement to maintain the confidentiality of such
Confidential Information and has executed appropriate agreements
that are substantially consistent with the Company’s standard
forms thereof. Except under confidentiality obligations, there has
been no material disclosure of any of the Company’s or its
Subsidiaries’ Confidential Information to any third
party.


 


4.16                 Environmental
Matters. Neither the Company nor any Subsidiary is in
violation of any statute, rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “Environmental Laws”), owns or operates
any real property contaminated with any substance that is subject
to any Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to
any claim relating to any Environmental Laws, which violation,
contamination, liability or claim has had or could reasonably be
expected to have a Material Adverse Effect, individually or in the
aggregate; and there is no pending or, to the Company’s
Knowledge, threatened investigation that might lead to such a
claim.


 


4.17                 Litigation.
Except as disclosed in the SEC Filings, there are no pending
actions, suits or proceedings against or affecting the Company, its
Subsidiaries or any of its or their properties which are required
to be disclosed in an SEC Filing; and to the Company’s
Knowledge, no such actions, suits or proceedings are threatened or
contemplated. Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or since January 1, 2014 has been
the subject of any action involving a claim of violation of or
liability under federal or state securities laws or a claim of
breach of fiduciary duty. To the Company’s Knowledge, there
is not pending or contemplated any investigation by the SEC
involving the Company or any current or former director or officer
of the Company. The SEC has not issued any stop order or other
order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the 1933 Act or the
1934 Act.


 


4.18                 Financial
Statements. The financial statements included in each SEC
Filing comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect
thereto as in effect at the time of filing (or to the extent
corrected by a subsequent restatement) and present fairly, in all
material respects, the consolidated financial position of the
Company and its Subsidiaries as of the dates shown and their
consolidated results of operations and cash flows for the periods
shown, and such financial statements have been prepared in
conformity with United States generally accepted accounting
principles applied on a consistent basis (“GAAP”)
(except as may be disclosed therein or in the notes thereto, and,
in the case of quarterly financial statements, as permitted by Form
10-Q under the 1934 Act). Except as (i) set forth in the financial
statements of the Company included in the SEC Filings filed prior
to the date hereof or (ii) expressly contemplated by the
Acquisition Transactions, neither the Company nor any of its
Subsidiaries has incurred any liabilities, contingent or otherwise,
except those incurred in the ordinary course of business,
consistent (as to amount and nature) with past practices since the
date of such financial statements, none of which, individually or
in the aggregate, have had or could reasonably be expected to have
a Material Adverse Effect.




 

8








 






 


4.19                 Insurance
Coverage. The Company and each Subsidiary maintains in full
force and effect insurance coverage that is customary for
comparably situated companies for the business being conducted and
properties owned or leased by the Company and each Subsidiary, and
the Company reasonably believes such insurance coverage to be
adequate against all liabilities, claims and risks against which it
is customary for comparably situated companies to
insure.


 


4.20                 Compliance
with Nasdaq Continued Listing Requirements. The Company is
in compliance with applicable Nasdaq continued listing
requirements. There are no proceedings pending or, to the
Company’s Knowledge, threatened against the Company relating
to the continued listing of the Common Stock on Nasdaq and the
Company has not received any notice of, nor to the Company’s
Knowledge is there any basis for, the delisting of the Common Stock
from Nasdaq.


 


4.21                 Brokers
and Finders. No Person will have, as a result of the
transactions contemplated by the Transaction Documents, any valid
right, interest or claim against or upon the Company, any
Subsidiary or an Investor for any commission, fee or other
compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company, other
than as disclosed to the Investors in writing on or prior to the
date hereof.


 


4.22                 No
General Solicitation. Neither the Company nor any Person
acting on its behalf has conducted any general solicitation or
general advertising (as those terms are used in Regulation D) in
connection with the offer or sale of any of the
Shares.


 


4.23                 No
Integrated Offering. Neither the Company nor any of its
Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any Company
security or solicited any offers to buy any security, under
circumstances that would adversely affect reliance by the Company
on Section 4(a)(2) for the exemption from registration for the
transactions contemplated hereby or would require registration of
the Securities under the 1933 Act.


 


4.24                 Rule
506 Compliance. To the Company’s knowledge, neither
the Company nor any Insider is subject to any of the “Bad
Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the 1933 Act (a “Disqualification Event”),
except for a Disqualification Event covered by Rule 506(d)(2)(i) or
(d)(3) of the 1933 Act. The Company is not disqualified from
relying on Rule 506 of Regulation D under the 1933 Act (“Rule
506”) for any of the reasons stated in Rule 506(d) in
connection with the issuance and sale of the Securities to the
Investors pursuant to this Agreement. The Company has exercised
reasonable care, including without limitation, conducting a factual
inquiry that is appropriate in light of the circumstances, into
whether any such disqualification under Rule 506(d) exists. The
Company has furnished to each Investor, a reasonable time prior to
the date hereof, a description in writing of any matters relating
to the Company and the Insiders that would have triggered
disqualification under Rule 506(d) but which occurred before
September 23, 2013, in each case, in compliance with the disclosure
requirements of Rule 506(e). The Company has exercised reasonable
care, including without limitation, conducting a factual inquiry
that is appropriate in light of the circumstances, into whether any
such disqualification under Rule 506(d) would have existed and
whether any disclosure is required to be made to Investor under
Rule 506(e). Any outstanding securities of the Company (of any kind
or nature) that were issued in reliance on Rule 506 at any time on
or after September 23, 2013 have been issued in compliance with
Rule 506(d) and (e).




 

9








 






 


4.25                 Private
Placement. The offer and sale of the Shares to the Investors
as contemplated hereby is exempt from the registration requirements
of the 1933 Act.


 


4.26                 Shell
Company Status. The Company is not, and has never been, an
issuer identified in Rule 144(i)(1).


 


4.27                 Questionable
Payments. Neither the
Company nor any of its Subsidiaries nor, to the Company’s
Knowledge, any of their respective current or former stockholders,
directors, officers, employees, agents or other Persons acting on
behalf of the Company or any Subsidiary, has on behalf of the
Company or any Subsidiary or in connection with their respective
businesses: (a) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (b) made any direct or indirect
unlawful payments to any governmental officials or employees from
corporate funds; (c) established or maintained any unlawful or
unrecorded fund of corporate monies or other assets; (d) made any
false or fictitious entries on the books and records of the Company
or any Subsidiary; or (e) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment of any
nature.


 


4.28                 Transactions
with Affiliates. Except as disclosed in the SEC Filings and
except for the participation in this offering of certain Investors
that are Affiliates of a director of the Company, none of the
officers or directors of the Company and, to the Company’s
Knowledge, none of the employees of the Company is presently a
party to any transaction with the Company or any Subsidiary (other
than as holders of stock options and/or warrants, and for services
as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the Company’s
Knowledge, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director,
trustee or partner.


 


4.29                 Internal
Controls. The Company is in
material compliance with the provisions of the Sarbanes-Oxley Act
of 2002 currently applicable to the Company. The Company and
the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the
recorded accountability for assets and liabilities is compared with
the existing assets and liabilities at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as
defined in 1934 Act Rules 13a-15(e) and 15d-15(e)) for the Company
and designed such disclosure controls and procedures to ensure that
material information relating to the Company, including the
Subsidiaries, is made known to the certifying officers by others
within those entities, particularly during the period in which the
Company’s most recently filed periodic report under the 1934
Act, as the case may be, is being prepared. The Company has
established internal control over financial reporting (as defined
in 1934 Act Rules 13a-15(f) and 15d-15(f)) to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with GAAP. The Company’s certifying officers have
evaluated the effectiveness of the Company’s disclosure
controls and procedures and the Company’s internal control
over financial reporting (collectively, “internal
controls”) as of the end of the period covered by the most
recently filed periodic report under the 1934 Act (such date, the
“Evaluation Date”). The Company presented in its most
recently filed periodic report under the 1934 Act the conclusions
of the certifying officers about the effectiveness of such internal
controls based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes
in the Company’s internal controls or, to the Company’s
Knowledge, in other factors that could significantly affect the
Company’s internal controls. The Company maintains and will
continue to maintain a standard system of accounting established
and administered in accordance with GAAP and the applicable
requirements of the 1934 Act.




 

10








 






 


4.30                 Disclosures.
Neither the Company nor any Person acting on its behalf has
provided the Investors or their agents or counsel with any
information that constitutes or might constitute material,
non-public information, other than the terms of the transactions
contemplated hereby and the terms of the Acquisition. The written
materials delivered to the Investors in connection with the
transactions contemplated by the Acquisition Documents and the
Transaction Documents do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements contained therein, in light of the
circumstances under which they were made, not
misleading.


 


4.31                 Investment
Company. The Company is not required to be registered as,
and is not an Affiliate of, and immediately following the Closing
will not be required to register as, an “investment
company” within the meaning of the Investment Company Act of
1940, as amended.


 


4.32                 Acquisition
Transactions. The Company has provided the Investors and
their counsel with true and complete copies of the Acquisition
Documents. The representations and warranties of the Company and,
to the Company’s Knowledge, the other parties to the Asset
Purchase Agreement and the other Acquisition Documents are true and
correct in all material respects. To the Company’s Knowledge,
there is no reason that the Company or the other parties to the
Asset Purchase Agreement or any other Acquisition Document, will
not be able to perform in all material respects the covenants and
obligations of the Company or such other parties set forth therein
on a timely basis when due. Other than the Acquisition Documents,
there are no other agreements, arrangements or understandings
relating to the Acquisition or the other Acquisition Transactions
that create substantive obligations on the Company or any
Subsidiary. The Target does not constitute and, after giving effect
to the Acquisition Transactions, will not constitute, a
“significant subsidiary” of the Company as defined in
Rule 1-02(w) of Regulation S-X under the 1933 Act. No financial
statements of the Seller, the Target or any other entity other than
the Company or pro forma financial information relating to the
Acquisition will be required to be included in or incorporated by
reference into the Registration Statement pursuant to the
requirements of such Regulation S-X.


 


4.33.                 No
Fiduciary. The Company acknowledges that none of the
Investors is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this
Agreement, the other Transaction Documents and the transactions
contemplated hereby and thereby, and any advice or other guidance
provided by any Investor or any of its representatives and agents
with respect to this Agreement, the other Transaction Documents and
the transactions contemplated hereby and thereby is merely
incidental to such Investor’s entry into such transactions.
The Company’s decision to enter into this Agreement and the
other Transaction Documents has been based solely on the
independent evaluation by the Company and its representatives and
agents.


 


5.           Representations
and Warranties of the Investors. Each of the Investors
hereby severally, and not jointly, represents and warrants to the
Company that:


 


5.1                 Organization
and Existence. Such Investor is a validly existing
corporation, limited partnership or limited liability company and
has all requisite corporate, partnership or limited liability
company power and authority to invest in the Shares pursuant to
this Agreement.


 


5.2                 Authorization.
The execution, delivery and performance by such Investor of the
Transaction Documents to which such Investor is a party have been
duly authorized and each will constitute the valid and legally
binding obligation of such Investor, enforceable against such
Investor in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to
or affecting creditors’ rights generally and to general
equity principles.


 


5.3                 Purchase
Entirely for Own Account. The Shares to be received by such
Investor hereunder will be acquired for such Investor’s own
account, not as nominee or agent, and not with a view to the resale
or distribution of any part thereof in violation of the 1933 Act,
and such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same in violation
of the 1933 Act without prejudice,
however, to such Investor’s right at all times to sell or
otherwise dispose of all or any part of such Shares in compliance
with applicable federal and state securities
laws. Nothing contained herein shall be deemed a
representation or warranty by such Investor to hold the Shares for
any period of time. Such Investor is not a broker-dealer
registered with the SEC under the 1934 Act or an entity engaged in
a business that would require it to be so registered.


 


5.4                 Investment
Experience. Such Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Shares and
has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the
investment contemplated hereby.


 


5.5                 Disclosure
of Information. Such Investor has had an opportunity to
receive all information related to the Company requested by it and
to ask questions of and receive answers from the Company regarding
the Company, its business and the terms and conditions of the
offering of the Shares. Such Investor acknowledges receipt of
copies of the SEC Filings. Neither such inquiries nor any other due
diligence investigation conducted by such Investor shall modify,
limit or otherwise affect such Investor’s right to rely on
the Company’s representations and warranties contained in
this Agreement.


 


5.6                 Restricted
Securities. Such Investor understands that the Shares are
characterized as “restricted securities” under the U.S.
federal securities laws inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may
be resold without registration under the 1933 Act only in certain
limited circumstances.


 


5.7                 Legends.
It is understood that, except as provided below, certificates
evidencing the Shares may bear the following or any similar
legend:


 


(a)           “The
securities represented hereby have not been registered with the
Securities and Exchange Commission or the securities commission of
any state in reliance upon an exemption from registration under the
Securities Act of 1933, as amended, and, accordingly, may not be
transferred unless (i) such securities have been registered for
sale pursuant to the Securities Act of 1933, as amended, (ii) such
securities are sold pursuant to Rule 144, or (iii) the Company has
received an opinion of counsel reasonably satisfactory to it that
such transfer may lawfully be made without registration under the
Securities Act of 1933, as amended.”




 

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(b)           If
required by the authorities of any state in connection with the
issuance of sale of the Shares, the legend required by such state
authority.


 


5.8                 Investor
Status. At the time such Investor was offered the
Securities, it was, and at the date hereof it is, (i) an
“accredited investor” as defined in Rule 501(a) under
the 1933 Act and (ii) an “institutional investor” as
defined in Financial Industry Regulatory Authority Rule
5110(d)(4)(B). Such Investor is not a registered broker dealer
registered under Section 15(a) of the Exchange Act, or a member of
the Financial Industry Regulatory Authority, Inc.
(“FINRA”) or an entity engaged in the business of being
a broker dealer. Except as otherwise disclosed in writing to the
Company on or prior to the date of this Agreement, such Investor is
not affiliated with any broker dealer registered under Section
15(a) of the 1934 Act, or a member of FINRA or an entity engaged in
the business of being a broker dealer. Such Investor maintains his
or her principal residence (in the case of an individual) or its
principal executive office (in the case of an entity) at the
location specified on its signature page hereto.


 


5.9                 No
General Solicitation. Such Investor did not learn of the
investment in the Shares as a result of any general solicitation or
general advertising.


 


5.10                 Brokers
and Finders. No Person will have, as a result of the
transactions contemplated by the Transaction Documents, any valid
right, interest or claim against or upon the Company, any
Subsidiary or an Investor for any commission, fee or other
compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of such
Investor.


 


5.11                 Prohibited
Transactions. Since the earlier of (a) such time as such
Investor was first contacted by the Company or any other Person
acting on behalf of the Company regarding the transactions
contemplated hereby or (b) thirty (30) days prior to the date
hereof, neither such Investor nor any Affiliate of such Investor
which (x) had knowledge of the Acquisition Transactions or the
transactions contemplated hereby, (y) has or shares discretion
relating to such Investor’s investments or trading or
information concerning such Investor’s investments, including
in respect of the Shares, or (z) is subject to such
Investor’s review or input concerning such Affiliate’s
investments or trading (collectively, “Trading
Affiliates”) has, directly or indirectly, effected or agreed
to effect any short sale, whether or not against the box,
established any “put equivalent position” (as defined
in Rule 16a-1(h) under the 1934 Act) with respect to the Common
Stock, granted any other right (including, without limitation, any
put or call option) with respect to the Common Stock or with
respect to any security that includes, relates to or derived any
significant part of its value from the Common Stock or otherwise
sought to hedge its position in the Shares (each, a
“Prohibited Transaction”). Prior to the earliest to
occur of (i) the termination of this Agreement, (ii) the Effective
Date or (iii) the Effectiveness Deadline, such Investor shall not,
and shall cause its Trading Affiliates not to, engage, directly or
indirectly, in a Prohibited Transaction. Such Investor acknowledges
that the representations, warranties and covenants contained in
this Section 5.11 are being made for the benefit of the Investors
as well as the Company and that each of the other Investors shall
have an independent right to assert any claims against such
Investor arising out of any breach or violation of the provisions
of this Section 5.11.


 




 

12








 






 


6.
Conditions to
Closing.


 


6.1                 Conditions
to the Investors’ Obligations. The obligation of each
Investor to purchase its Shares at the Closing is subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived by such Investor (as to
itself only):


 


(a)           The
representations and warranties made by the Company in Section 4
hereof qualified as to materiality shall be true and correct at all
times prior to and on the Closing Date, except to the extent any
such representation or warranty expressly speaks as of an earlier
date, in which case such representation or warranty shall be true
and correct as of such earlier date, and, the representations and
warranties made by the Company in Section 4 hereof not qualified as
to materiality shall be true and correct in all material respects
at all times prior to and on the Closing Date, except to the extent
any such representation or warranty expressly speaks as of an
earlier date, in which case such representation or warranty shall
be true and correct in all material respects as of such earlier
date. The Company shall have performed in all material respects all
obligations and covenants herein required to be performed by it on
or prior to the Closing Date.


 


(b)           The
Company shall have obtained any and all consents, permits,
approvals, registrations and waivers necessary or appropriate for
consummation of the Acquisition Transactions, the purchase and sale
of the Shares and the consummation of the other transactions
contemplated by the Acquisition Documents and the Transaction
Documents, all of which shall be in full force and
effect.


 


(c)           The
Company shall have executed and delivered the Registration Rights
Agreement.


 


(d)           The
Company and each other party thereto shall have executed and
delivered all of the Acquisition Documents, substantially in the
forms provided to the Investors and their counsel.


 


(e)           The
Acquisition shall have been consummated pursuant to the terms of
the Asset Purchase Agreement and the other Acquisition Documents.
Without limiting the generality of the foregoing, no increase in
the Acquisition Consideration shall have occurred, and there shall
have been no amendment, modification, waiver or supplement of the
Asset Purchase Agreement or any other Acquisition Document that is
less favorable to the Company in the aggregate than the original
terms of the Asset Purchase Agreement and the other Acquisition
Documents.


 


(f)           The
Company shall have filed with Nasdaq a Notification Form: Listing
of Additional Shares for the listing of the Shares on Nasdaq, a
copy of which shall have been provided to the Investors, and Nasdaq
shall not have raised any unresolved objection
thereto.


 


(g)           The
Company shall have received confirmation that the full Purchase
Price will be paid by the Investors upon the Closing.




 

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(h)           No
judgment, writ, order, injunction, award or decree of or by any
court, or judge, justice or magistrate, including any bankruptcy
court or judge, or any order of or by any governmental authority,
shall have been issued, and no action or proceeding shall have been
instituted by any governmental authority, enjoining or preventing
the consummation of any Acquisition Transaction, the sale of the
Shares as contemplated hereby or the consummation of any other
transaction contemplated by the Acquisition Documents and the
Transaction Documents.


 


(i)           The
Company shall have delivered a Certificate, executed on behalf of
the Company by its Chief Executive Officer or its Chief Financial
Officer, dated as of the Closing Date, certifying to the
fulfillment of the conditions specified in subsections (a), (b),
(g), (h) and (l) of this Section 6.1.


 


(j)           The
Company shall have delivered a Certificate, executed on behalf of
the Company by its Secretary, dated as of the Closing Date,
certifying the resolutions adopted by the Board of Directors of the
Company, or a duly appointed committee thereof, approving (i) the
Acquisition Transactions and the Acquisition Documents to which the
Company is a party, (ii) the sale of the Shares as contemplated by
this Agreement and the consummation of the other transaction
contemplated hereby and under the other Transaction Documents,
(iii) certifying the current versions of the Certificate of
Incorporation and Bylaws of the Company, and (iv) certifying as to
the signatures and authority of persons signing the Transaction
Documents and related documents on behalf of the
Company.


 


(k)           The
Investors shall have received an opinion from Godfrey & Kahn
S.C., the Company’s counsel with respect to the transactions
contemplated by the Transaction Documents, dated as of the Closing
Date, in form and substance reasonably acceptable to the Investors
and addressing such legal matters as the Investors may reasonably
request.


 


(l)           No
stop order or suspension of trading shall have been imposed by
Nasdaq, the SEC or any other governmental or regulatory body with
respect to public trading in the Common Stock.


 


6.2                 Conditions
to Obligations of the Company. The Company’s
obligation to sell and issue the Shares at the Closing is subject
to the satisfaction on or prior to the Closing Date of the
following conditions, any of which may be waived by the
Company:


 


(a)           The
representations and warranties made by the Investors in Section 5
hereof, other than the representations and warranties contained in
Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the
“Investment Representations”), shall be true and
correct in all material respects when made, and shall be true and
correct in all material respects on the Closing Date with the same
force and effect as if they had been made on and as of said date.
The Investment Representations shall be true and correct in all
respects when made, and shall be true and correct in all respects
on the Closing Date with the same force and effect as if they had
been made on and as of said date. The Investors shall have
performed in all material respects all obligations and covenants
herein required to be performed by them on or prior to the Closing
Date.


 




 

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(b)           The
Investors shall have executed and delivered the Registration Rights
Agreement.


 


(c)           The
Investors shall have delivered the Purchase Price to the
Company.


 


6.3                 Termination
of Obligations to Effect Closing; Effects.


 


(a)           The
obligations of the Company, on the one hand, and the Investors, on
the other hand, to effect the Closing shall terminate as
follows:


 


(i)                 Upon
the mutual written consent of the Company and the
Investors;


 


(ii)                 By
the Company if any of the conditions set forth in Section 6.2 shall
have become incapable of fulfillment, and shall not have been
waived by the Company;


 


(iii)                 By
an Investor (with respect to itself only) if any of the conditions
set forth in Section 6.1 shall have become incapable of
fulfillment, and shall not have been waived by the Investor;
or


 


(iv)                 By
either the Company or any Investor (with respect to itself only) if
the Closing has not occurred on or prior to November 22,
2019;


 


provided,
however, that, except in the case of clause (i) above, the party
seeking to terminate its obligation to effect the Closing shall not
then be in breach of any of its representations, warranties,
covenants or agreements contained in this Agreement or the other
Transaction Documents if such breach has resulted in the
circumstances giving rise to such party’s seeking to
terminate its obligation to effect the Closing.


 


(b)           In
the event of termination by the Company or any Investor of its
obligations to effect the Closing pursuant to this Section 6.3,
written notice thereof shall forthwith be given to the other
Investors by the Company and the other Investors shall have the
right to terminate their obligations to effect the Closing upon
written notice to the Company and the other Investors. Nothing in
this Section 6.3 shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions
of this Agreement or the other Transaction Documents or to impair
the right of any party to compel specific performance by any other
party of its obligations under this Agreement or the other
Transaction Documents.


 


7.           Covenants
and Agreements of the Company.


 


7.1                 [RESERVED]


 


7.2                 Reports.
The Company will furnish to the Investors and/or their assignees
such information relating to the Company and its Subsidiaries as
from time to time may reasonably be requested by the Investors
and/or their assignees; provided, however, that the Company shall
not disclose material nonpublic information to the Investors, or to
advisors to or representatives of the Investors, unless prior to
disclosure of such information the Company identifies such
information as being material nonpublic information and provides
the Investors, such advisors and representatives with the
opportunity to accept or refuse to accept such material nonpublic
information for review and any Investor wishing to obtain such
information enters into an appropriate confidentiality agreement
with the Company with respect thereto.


 




 

15








 






 


7.3                 No
Conflicting Agreements. The Company will not take any
action, enter into any agreement or make any commitment that would
conflict or interfere in any material respect with the
Company’s obligations to the Investors under the Transaction
Documents.


 


7.4                 Insurance.
The Company shall maintain in full force and effect insurance
coverage that is customary for comparably situated companies for
the business being conducted and properties owned or leased by the
Company and each Subsidiary, which the Company reasonably believes
such insurance coverage to be adequate against all liabilities,
claims and risks against which it is customary for comparably
situated companies to insure.


 


7.5                 Compliance
with Laws. The Company will comply in all material respects
with all applicable laws, rules, regulations, orders and decrees of
all governmental authorities.


 


7.6                 Listing
of Underlying Shares and Related Matters. Promptly following
the date hereof, the Company shall take all necessary action to
cause the Shares to be listed on Nasdaq no later than the Closing
Date. Further, if the Company applies to have its Common Stock or
other securities traded on any other principal stock exchange or
market, it shall include in such application the Shares and will
take such other action as is necessary to cause such Common Stock
to be so listed. The Company will use commercially reasonable
efforts to continue the listing and trading of its Common Stock on
Nasdaq and, in accordance, therewith, will use commercially
reasonable efforts to comply in all respects with the
Company’s reporting, filing and other obligations under the
bylaws or rules of such market or exchange, as
applicable.


 


7.7                 Termination
of Covenants. The provisions of Sections 7.2 through 7.5
shall terminate and be of no further force and effect on the date
on which the Company’s obligations under the Registration
Rights Agreement to register or maintain the effectiveness of any
registration covering the Registrable Securities (as such term is
defined in the Registration Rights Agreement) shall
terminate.


 


7.8                 Removal
of Legends. In connection with any sale or disposition of
the Shares by an Investor in accordance with Rule 144 or in
accordance with any other exemption under the 1933 Act such that
the purchaser acquires freely tradable shares and upon compliance
by the Investor with the requirements of this Agreement, the
Company shall cause the transfer agent for the Common Stock (the
“Transfer Agent”) to issue replacement certificates
representing the Shares sold or disposed of without restrictive
legends. Upon the earlier of (i) registration for resale pursuant
to the Registration Rights Agreement or (ii) the Shares becoming
freely tradable by a non-affiliate pursuant to Rule 144 the Company
shall (A) deliver to the Transfer Agent irrevocable instructions
that the Transfer Agent shall reissue a certificate representing
shares of Common Stock without legends upon receipt by such
Transfer Agent of the legended certificates for such shares,
together with either (1) a customary representation by the Investor
that Rule 144 applies to the shares of Common Stock represented
thereby or (2) a statement by the Investor that such Investor will
sell (or, in the case of any Affiliate of the Company has sold) the
shares of Common Stock represented thereby in accordance with the
Plan of Distribution contained in the Registration Statement, and
(B) cause its counsel to deliver to the Transfer Agent one or more
blanket opinions to the effect that the removal of such legends in
such circumstances may be effected under the 1933 Act. From and
after the earlier of such dates, upon an Investor’s written
request, the Company shall promptly cause certificates evidencing
the Investor’s Shares to be replaced with certificates which
do not bear such restrictive legends. When the Company is required
to cause an unlegended certificate to replace a previously issued
legended certificate, if: (1) the unlegended certificate is not
delivered to an Investor within two (2) Business Days of submission
by that Investor of a legended certificate and supporting
documentation to the Transfer Agent as provided above and (2) prior
to the time such unlegended certificate is received by the
Investor, the Investor, or any third party on behalf of such
Investor or for the Investor’s account, purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver
in satisfaction of a sale by the Investor of shares represented by
such certificate (a “Buy-In”), then the Company shall
pay in cash to the Investor (for the documented costs incurred
either directly by such Investor or on behalf of a third party) the
amount by which the total purchase price paid for Common Stock as a
result of the Buy-In (including brokerage commissions, if any)
exceeds the proceeds received by such Investor as a result of the
sale to which such Buy-In relates. The Investor shall provide the
Company written notice indicating the amounts payable to the
Investor in respect of the Buy-In.


 




 

16








 






 


7.9                 Subsequent
Equity Sales; Registration Statements.


 


(a)           From
the date hereof until ninety (90) days after the Closing Date,
without the consent of the Required Investors, neither the Company
nor any Subsidiary shall issue shares of Common Stock or Common
Stock Equivalents. Notwithstanding the foregoing, the provisions of
this Section 7.9(a) shall not apply to (i) the issuance of the
Shares, (ii) the issuance of Common Stock or Common Stock
Equivalents upon the conversion or exercise of any securities of
the Company or a Subsidiary outstanding on the date hereof,
provided that the terms of such security are not amended after the
date hereof to decrease the exercise price or increase the Common
Stock or Common Stock Equivalents receivable upon the exercise,
conversion or exchange thereof, or (iii) the issuance of any Common
Stock or Common Stock Equivalents pursuant to any Company equity
incentive plan approved by the Company’s stockholders and in
place as of the date hereof.


 


(b)           Without
the prior written consent of the Required Investors, from the date
hereof until the earlier of (i) three years from the Closing Date
or (ii) such time as no Investor holds any of the Shares, the
Company shall be prohibited from effecting or entering into an
agreement to effect any “Variable Rate Transaction”.
The term “Variable Rate Transaction” shall mean a
transaction in which the Company issues or sells (i) any debt or
equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive additional shares
of Common Stock either (A) at a conversion, exercise or exchange
rate or other price that is based upon and/or varies with the
trading prices of or quotations for the shares of Common Stock at
any time after the initial issuance of such debt or equity
securities, or (B) with a conversion, exercise or exchange price
that is subject to being reset at some future date after the
initial issuance of such debt or equity security or upon the
occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common
Stock or (ii) enters into any agreement, including, but not limited
to, an equity line of credit, whereby the Company may sell
securities at a future determined price. For the avoidance of
doubt, the issuance of a security which is subject to customary
anti-dilution protections, including where the conversion, exercise
or exchange price is subject to adjustment as a result of stock
splits, reverse stock splits and other similar recapitalization or
reclassification events, shall not be deemed to be a
“Variable Rate Transaction.”


 


(c)           The
Company shall not, and shall use its commercially reasonable
efforts to ensure that no Affiliate of the Company shall, sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in Section 2 of the 1933 Act)
that will be integrated with the offer or sale of the Securities in
a manner that would require the registration under the 1933 Act of
the sale of the Shares to the Investors, or that will be integrated
with the offer or sale of the Shares for purposes of the rules and
regulations of any trading market such that it would require
stockholder approval prior to the closing of such other transaction
unless stockholder approval is obtained before the closing of such
subsequent transaction.




 

17








 






 


(d)           The
Company shall not, from the date hereof until ninety (90) days
after the Effective Date, prepare and file with the SEC a
registration statement relating to an offering for its own account
or the account of others under the 1933 Act of any of its equity
securities, other than (i) a Registration Statement pursuant to the
Registration Rights Agreement or (ii) any registration statement or
post-effective amendment to a registration statement (or supplement
thereto) relating to the Company’s employee benefit plans
registered on Form S-8 or, in connection with an acquisition, on
Form S-4.


 


7.10                 Equal
Treatment of Investors. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification
of any provision of any of the Transaction Documents unless the
same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Investor by the
Company and negotiated separately by each Investor, and is intended
for the Company to treat the Investors as a class and shall not in
any way be construed as the Investors acting in concert or as a
group with respect to the purchase, disposition or voting of
Securities or otherwise.


 


8.           Survival
and Indemnification.


 


8.1
Survival. The
representations, warranties, covenants and agreements contained in
this Agreement shall survive the Closing of the transactions
contemplated by this Agreement.


 


8.2
Indemnification.
The Company agrees to indemnify and hold harmless each Investor and
its Affiliates and their respective directors, officers, trustees,
partners, members, managers, employees and agents, and their
respective successors and assigns, from and against any and all
losses, claims, damages, liabilities and expenses (including
without limitation reasonable attorney fees and disbursements and
other reasonable, documented expenses incurred in connection with
investigating, preparing or defending any action, claim or
proceeding, pending or threatened and the costs of enforcement
thereof) (collectively, “Losses”) to which such Person
may become subject as a result of any breach of representation,
warranty, covenant or agreement made by or to be performed on the
part of the Company under the Transaction Documents, and will
reimburse any such Person for all such amounts as they are incurred
by such Person.


 


8.3
Conduct of Indemnification
Proceedings. Any person
entitled to indemnification hereunder shall (i) give prompt notice
to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) permit such indemnifying party to
assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided that any person
entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed
to pay such fees or expenses, or (b) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its
counsel, a conflict of interest exists between such person and the
indemnifying party with respect to such claims (in which case, if
the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such person); and
provided,
further, that the
failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice
shall materially adversely affect the indemnifying party in the
defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in
the same jurisdiction, be liable for fees or expenses of more than
one separate firm of attorneys at any time for all such indemnified
parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect of such claim or
litigation.


 




 

18








 






 


9.           Miscellaneous.


 


9.1                 Successors
and Assigns. This Agreement may not be assigned by a party
hereto without the prior written consent of the Company or the
Investors, as applicable, provided, however, that an Investor may
assign its rights and delegate its duties hereunder in whole or in
part to an Affiliate or to a third party acquiring some or all of
its Securities in a transaction complying with applicable
securities laws without the prior written consent of the Company or
the other Investors. The provisions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Without limiting the
generality of the foregoing, in the event that the Company is a
party to a merger, consolidation, share exchange or similar
business combination transaction in which the Common Stock is
converted into the equity securities of another Person, from and
after the effective time of such transaction, such Person shall, by
virtue of such transaction, be deemed to have assumed the
obligations of the Company hereunder, the term
“Company” shall be deemed to refer to such Person and
the term “Shares” shall be deemed to refer to the
securities received by the Investors in connection with such
transaction. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.


 


9.2                 Counterparts;
Faxes. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This
Agreement may be delivered by facsimile or other form of electronic
transmission, which shall be deemed an original.


 


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


 


9.4                 Notices.
Unless otherwise provided, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal
delivery, then such notice shall be deemed given upon such
delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete
transmittal, (iii) if given by electronic mail during normal
business hours of the recipient, and if not sent during normal
business hours, then on the recipient’s next business day,
(iv) if given by mail, then such notice shall be deemed given upon
the earlier of (A) receipt of such notice by the recipient or (B)
three days after such notice is deposited in first class mail,
postage prepaid, and (v) if given by an internationally recognized
overnight air courier, then such notice shall be deemed given one
Business Day after delivery to such carrier. All notices shall be
addressed to the party to be notified at the address as follows, or
at such other address as such party may designate by ten
days’ advance written notice to the other party:


 


If to
the Company:


 


SharpSpring,
Inc.


5001
Celebration Pointe Avenue


Suite
410


Gainseville,
Florida 32608


Attention: Brad
Stanczak


E-mail:
brad.stanczak@sharpspring.com


 




 

19








 






 


With a
copy to:


 


Godfrey
& Kahn S.C.


833
East Michigan Street


Suite
1800


Milwaukee,
Wisconsin 53202-5615


Attention: C.J.
Wauters, Esq.


Fax:
(414) 273-5198


E-mail:
cwauters@gklaw.com


 


If to
the Investors:


 


to the
addresses set forth on the signature pages hereto.


 


9.5                 Expenses.
The parties hereto shall pay their own costs and expenses in
connection herewith, except that the Company shall pay to
Lowenstein Sandler LLP a fee not to exceed $40,000, regardless of
whether the transactions contemplated hereby are consummated; it
being understood that Lowenstein Sandler LLP has only rendered
legal advice to the Special Situations Funds participating in this
transaction and not to the Company or any other Investor in
connection with the transactions contemplated hereby, and that each
of the Company and each Investor has relied for such matters on the
advice of its own respective counsel. Such expenses shall be paid
at the Closing or, if the Closing does not occur, within five (5)
Business Days of the termination of this Agreement. The Company
shall reimburse the Investors upon demand for all reasonable and
documented out-of-pocket expenses incurred by the Investors,
including without limitation reimbursement of attorneys’ fees
and disbursements, in connection with any amendment, modification
or waiver of this Agreement or the other Transaction Documents
requested by the Company subsequent to the Closing. In the event
that legal proceedings are commenced by any party to this Agreement
against another party to this Agreement in connection with this
Agreement or the other Transaction Documents, the party or parties
which do not prevail in such proceedings shall severally, but not
jointly, pay their pro rata share of the reasonable
attorneys’ fees and other reasonable and documented
out-of-pocket costs and expenses incurred by the prevailing party
in such proceedings.


 


9.6                 Amendments
and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and
the Required Investors. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of
any Securities purchased under this Agreement at the time
outstanding, each future holder of all such Securities, and the
Company.




 

20








 






 


9.7                 Publicity.
Except as set forth below, no public release or announcement
concerning the transactions contemplated hereby shall be issued by
the Company or the Investors without the prior consent of the
Company (in the case of a release or announcement by the Investors)
or the Investors (in the case of a release or announcement by the
Company) (which consents shall not be unreasonably withheld),
except as such release or announcement may be required by law or
the applicable rules or regulations of any securities exchange or
securities market, in which case the Company or the Investors, as
the case may be, shall allow the Investors or the Company, as
applicable, to the extent reasonably practicable in the
circumstances, reasonable time to comment on such release or
announcement in advance of such issuance. By 8:30 a.m. (New York
City time) on the trading day immediately following the execution
and delivery of this Agreement, the Company shall issue a press
release (the “Press Release”) (A) disclosing the
execution of the Asset Purchase Agreement, (B) describing the
Acquisition and the consummation of the other Acquisition
Transactions contemplated by the Acquisition Documents, (C)
disclosing the execution of this Agreement and the other
Transaction Documents, (D) describing the transactions contemplated
hereby and by the other Transaction Documents, and (E) disclosing
any other material nonpublic information regarding the Company or
any other information to be included in the 8-K (as defined below).
No later than one Business Day after the Closing Date, the Company
shall file with the SEC a Current Report on Form 8-K (the
“8-K”) attaching the Press Release as well as copies of
the Acquisition Documents required to be filed with the SEC and the
Transaction Documents. In addition, the Company will make such
other filings and notices in the manner and time required by the
SEC or Nasdaq.


 


9.8                 Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the
maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the
parties hereby waive any provision of law which renders any
provision hereof prohibited or unenforceable in any
respect.


 


9.9                 Entire
Agreement. This Agreement, including the Exhibits and the
Disclosure Schedules, and the other Transaction Documents
constitute the entire agreement among the parties hereof with
respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings, both oral and written, between
the parties with respect to the subject matter hereof and
thereof.


 


9.10                 Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions
as may reasonably be required to carry out the transactions
contemplated hereby and to evidence the fulfillment of the
agreements herein contained.


 


9.11                 Construction.
The parties agree that they and/or their respective counsel have
reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents
or any amendments thereto.




 

21








 






 


9.112                 Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York without regard to the
choice of law principles thereof. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of the courts of
the State of New York located in New York County and the United
States District Court for the Southern District of New York for the
purpose of any suit, action, proceeding or judgment relating to or
arising out of this Agreement and the transactions contemplated
hereby. Service of process in connection with any such suit, action
or proceeding may be served on each party hereto anywhere in the
world by the same methods as are specified for the giving of
notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any
such suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the
laying of venue of any such suit, action or proceeding brought in
such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in
an inconvenient forum. EACH OF THE
PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS OR ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.


 


9.13                 Independent
Nature of Investors’ Obligations and
Rights. The obligations of each
Investor under any Transaction Document are several and not joint
with the obligations of any other Investor, and no Investor shall
be responsible in any way for the performance of the obligations of
any other Investor under any Transaction Document. The decision of
each Investor to purchase Securities pursuant to the Transaction
Documents has been made by such Investor independently of any other
Investor. Nothing contained herein or in any Transaction Document,
and no action taken by any Investor pursuant thereto, shall be
deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create
a presumption that the Investors are in any way acting in concert
or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. Each Investor
acknowledges that no other Investor has acted as agent for such
Investor in connection with making its investment hereunder and
that no Investor will be acting as agent of such Investor in
connection with monitoring its investment in the Securities or
enforcing its rights under the Transaction Documents. Each Investor
shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall
not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose. The Company
acknowledges that each of the Investors has been provided with the
same Transaction Documents for the purpose of closing a transaction
with multiple Investors and not because it was required or
requested to do so by any Investor.


[signature
page follows]


 




 

22








 






 


IN
WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the
date first above written.


 



The
Company:


SHARPSPRING,
INC.






 

By:  
/s/ Brad
Stanczak


Name:
Brad Stanczak


Title:
Chief Financial Officer


 


 


 


 


 


 


 



 

23







 





 





 



The
Investors:                                                                 

SPECIAL SITUATIONS
PRIVATE EQUITY FUND, L.P.






 

By: 
/s/
Adam Stettner


Name:
Adam Stettner


Title:
General Partner


 


Aggregate
Purchase Price: $500,004


Number
of Shares: 55,556


TIN:
13-3916551


 


Address
for Notice:


527
Madison Avenue


Suite
2600


New
York, NY 10022


Attn:
Marianne Kelly


Telephone:
212.319.6625


Facsimile:
212.319.6677


E-mail:
Marianne@ssfund.com


 


with a
copy to:


 


Lowenstein Sandler
LLP


65
Livingston Avenue


Roseland, NJ
07068


Attn:
John D. Hogoboom, Esq.

Telephone:
973.597.2500

Facsimile: 
973.597.2400


E-mail:
jhogoboom@lowenstein.com


 


 


 




 

24








 






 


SPECIAL
SITUATIONS TECHNOLOGY FUND, L.P.


 


 


 

By: /s/ Adam
Stettner


Name:
Adam Stettner


Title:
General Partner


 


Aggregate
Purchase Price: $319,995


Number
of Shares: 35,555


TIN:
20-0051532


 


Address
for Notice:


527
Madison Avenue


Suite
2600


New
York, NY 10022


Attn:
Marianne Kelly


Telephone:
212.319.6625


Facsimile:
212.319.6677


E-mail:
Marianne@ssfund.com


 


with a
copy to:


 


Lowenstein Sandler
LLP


65
Livingston Avenue


Roseland, NJ
07068


Attn:
John D. Hogoboom, Esq.

Telephone:
973.597.2500

Facsimile:
973.597.2400


E-mail:
jhogoboom@lowenstein.com


 


 




 

25








 






 


SPECIAL
SITUATIONS TECHNOLOGY FUND II, L.P.


 

By: /s/ Adam
Stettner


Name:
Adam Stettner


Title:
General Partner


 


Aggregate
Purchase Price: $1,680,003


Number
of Shares: 186,667


TIN:
13-3937585


 


Address
for Notice:


527
Madison Avenue


Suite
2600


New
York, NY 10022


Attn:
Marianne Kelly


Telephone:
212.319.6625


Facsimile:
212.319.6677


E-mail:
Marianne@ssfund.com


 


with a
copy to:


 


Lowenstein Sandler
LLP


65
Livingston Avenue


Roseland, NJ
07068


Attn:
John D. Hogoboom, Esq.

Telephone:
973.597.2500

Facsimile:
973.597.2400


E-mail:
jhogoboom@lowenstein.com


 


 




 

26








 






 


GREENHAVEN ROAD
CAPITAL FUND 1, LP


 


By:
Greenhaven Road Investment Management, LP,


As
Investment Manager


 



By:            


/s/ Scott Stewart Miller, Jr.____






Name:
Scott Stewart Miller, Jr.


Title:
Authorized Signatory


 


Aggregate
Purchase Price: $1,235,250


Number
of Shares: 137,250


TIN:
45-4741929


 


Address
for Notice:


 


8 Sound
Shore Drive, Suite 190


Greenwich, CT
06830


Attn:
Scott Stewart Miller, Jr.


Telephone:
917.880.2051


Facsimile:
203.584.9000


E-mail:
Scott@greenhavenroad.com


 




 

27








 






 


GREENHAVEN ROAD
CAPITAL FUND 2, LP


 


By:
Greenhaven Road Investment Management, LP,


As
Investment Manager


 



By:            


/s/ Scott Stewart Miller, Jr.____






Name:
Scott Stewart Miller, Jr.


Title:
Authorized Signatory


 


Aggregate
Purchase Price: $1,264,752


Number
of Shares: 140,528


TIN:
82-3291170


 


Address
for Notice:


 


8 Sound
Shore Drive, Suite 190


Greenwich, CT
06830


Attn:
Scott Stewart Miller, Jr.


Telephone:
917.880.2051


Facsimile:
203.584.9000


E-mail:
Scott@greenhavenroad.com


 




 

28