ASSET
PURCHASE AGREEMENT


 


This
Asset Purchase Agreement (this “Agreement”) is made and entered into as of June 27, 2016 (the “Effective
Date”), between The Electric Mail Company, a Nova Scotia company (“Buyer”), and SharpSpring, Inc.,
a Delaware corporation (“Seller”). Buyer and Seller are sometimes individually called a “Party”
and collectively called the “Parties.”


 


Buyer
wishes to purchase the Assets (as defined below) from Seller and is willing to assume the Assumed Liabilities (as defined below)
from Seller, in each case pursuant to the terms and conditions in this Agreement. By signing this Agreement, each Party represents
and warrants that it has read, understands and agrees to be bound by all terms and conditions of this Agreement. The Parties agree
as follows:


 


1.
Definitions. The following terms have the following respective meanings (and capitalized terms not defined in this Section
1 have the meanings set forth in the other sections of this Agreement):


 


“Affiliate
Partner Accounts” means all of the affiliate partner accounts of Seller related to the Business, including those listed
on the attached Schedule A-2, and all records and other information related to such accounts.


 


“Affiliate
Partner Contracts” means, with respect to the Affiliate Partner Accounts, the underlying agreements between Seller and
each respective partner (including any amendments).


 


“Assets”
means, collectively: (1) the Customer Accounts and Customer Contracts; (2) the Affiliate Partner Accounts and Affiliate Partner
Contracts; (3) the Intellectual Property Assets; (4) all of the equipment of Seller related to the Business, including those listed
on the attached Schedule A-4; (5) all of the accounts receivable of Seller related to the Business; (6) all of the prepaid
expenses of Seller and other amounts or deposits paid in advance by Seller for products or services to be provided to the Business
in the ordinary course of business after the Effective Date (including the right of Buyer or the Business to receive such products
or services after the Effective Date); (7) any additional assets listed on the attached Schedule A-5; (8) all electronic
and/or hard copy books and records related to the Business, the Assets or the Assumed Liabilities; (9) all claims, causes of action
and rights of recovery for the benefit of Seller related to the Business the Assets or the Assumed Liabilities; and (10) the goodwill
related to the Business. “Assets” does not include Excluded Assets.


 


“Assumed
Liabilities” means the obligations of Seller arising after the Effective Date under the Customer Contracts, the Affiliate
Partner Contracts and the contracts listed on the attached Schedule A-5 (to the extent such contracts are assigned to Buyer
under this Agreement), specifically excluding any obligations or liabilities (including for breach or default) arising on or prior
to the Effective Date or arising from facts or conditions existing on or prior to the Effective Date.


 


“Business”
means the business of Seller whereby Seller provides SMTP relay and email delivery products and services as currently conducted
(or as currently proposed to be conducted). The Business does not include Seller’s PreviewMyEmail business, SharpSpring
marketing automation business or GraphicMail/SharpSpring Mail+ email marketing business.


 


“Buyer
Parties” means Buyer and its subsidiaries and affiliates and their respective officers, directors, managers, employees,
representatives, agents, successors and assigns.


 


“Cash
Purchase Price” means $15,000,000 USD.


 


“Customer
Accounts” means all of the customer accounts of Seller related to the Business, including those listed on the attached
Schedule A-1, and all records and other information related to such accounts. Customer Accounts shall exclude portions
of customer accounts of Seller that do not relate to the Business.


 




    	 



    	 



    

 


“Customer
Contracts” means, with respect to the Customer Accounts, the underlying agreements between Seller and each respective
customer (including any amendments).


 


“Encumbrance”
means any pledge, lien, charge, security interest, lease, license, title retention, mortgage, restriction, easement, right-of-way,
title defect, option, right of first offer or refusal, purchase right, adverse claim or encumbrance of any kind.


 


“Estimated
Closing Payment” means the Cash Purchase Price, minus the Holdback Amount, plus or minus (as applicable) the Estimated
Adjustment Amount.


 


“Excluded
Assets” means the corporate seals, organizational documents, minute books, stock books, tax returns or other records
having to do with the corporate organization of Seller, all employee-related or employee benefit-related files or records, and
any books and records which Seller is prohibited from disclosing or transferring to Buyer under applicable law and is required
by applicable law to retain.


 


“Final
Closing Payment” means the Cash Purchase Price, minus the Holdback Amount, plus or minus (as applicable) the Final Adjustment
Amount.


 


“GAAP”
means general accepted accounting principles in the United States, consistently applied.


 


“Holdback
Amount” means $1,000,000 USD.


 


“Holdback
Release Date” means the date that is 12 months following the Effective Date.


 


“Indebtedness”
means (i) any indebtedness, obligation or liability of Seller for borrowed money, under equipment, financing or capital leases
related to the Business or with respect to which there is any Encumbrance on the Assets, and (ii) all premiums, penalties, charges,
fees, expenses and other amounts due in connection with the payment in full of the foregoing and/or required to fully release
any Encumbrances on the Assets.


 


“Intellectual
Property Assets” means all of the business names, domain names, trade names, trademarks, service marks, trade dress,
branding, goodwill, trade secrets, know-how, patents, inventions, copyrights, works of authorship, moral rights, source code and
software developed by or for Seller, databases and other intellectual property rights and proprietary information of or used by
Seller (related to the Business or the Assets), whether registered, pending registration or unregistered, including those listed
on the attached Schedule A-3, and all intellectual property rights seeking priority to any of the foregoing, all rights
with respect to the foregoing (including past, present and future claims of infringement, the right to seek and collect past,
present and future damages, and the right to collect payments due under licenses to the foregoing), and all rights of Seller under
(including to enforce) Service Provider Agreements; except as set forth on the attached Schedule A-3 under the heading
“Excluded Intellectual Property Assets.”


 


“Prepaid
Revenues” means any income, revenue or similar amounts received in advance by Seller for products or services to be
provided by the Business after the Effective Date as part of the Assumed Liabilities.


 


“Proceeding”
means any action, suit, litigation, arbitration, mediation, hearing, audit, investigation, claim, charge, complaint or proceeding
(whether civil, criminal, administrative, investigative or informal).


 


“Retained
Liabilities” means any and all liabilities or obligations of Seller of any kind (whether or not absolute, matured, accrued,
due, asserted or known, and regardless of when arising or asserted) that are not Assumed Liabilities, including liabilities or
obligations related to employees, contractors or service providers.


 


“Seller
Parties” means Seller and its subsidiaries and affiliates and their respective officers, directors, managers, employees,
representatives, agents, successors and assigns.


 




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2.
Purchase and Sale of Assets; Assumption of Liabilities.


 


(a)
Assets. Buyer hereby purchases from Seller, and Seller hereby sells, transfers, conveys, assigns and delivers to Buyer,
free and clear of any Encumbrances, all of Seller’s right, title and interest in, to and under the Assets, pursuant to the
terms and conditions in this Agreement.


 


(b)
Assumed Liabilities. From and after the Effective Date, as additional consideration for the Assets, Buyer shall assume
the Assumed Liabilities, pursuant to the terms and conditions in this Agreement. Buyer is not assuming and is not responsible
for any of the Retained Liabilities, which will remain obligations of Seller.


 


3.
Payment of Purchase Price; Holdback Amount; Post-Closing Adjustments.


 


(a)
Payment of Purchase Price. The purchase price payable to Seller will be (i) decreased by (x) 50% of the amount of Prepaid
Revenues, calculated as of the close of business on the Effective Date and in accordance with GAAP, and (y) the amount of Indebtedness
outstanding as of immediately prior to the Closing; and (ii) increased by the amount of prepaid expenses paid by Seller prior
to the Effective Date for products or services to be provided to the Business in the ordinary course of business after the Effective
Date (“Seller Prepaid Expenses”), calculated as of the close of business on the Effective Date and in accordance
with GAAP. The net amount by which the purchase price payable to Seller is adjusted in accordance with the previous sentence is
the “Adjustment Amount.” The attached Schedule B sets forth an estimated statement as of the Effective
Date prepared by Seller and Buyer containing their agreed estimates of Prepaid Revenues and Seller Prepaid Expenses (each calculated
as of the close of business on the Effective Date and in accordance with GAAP) and Indebtedness outstanding as of immediately
prior to the Closing, and their agreed estimate of the Adjustment Amount (the “Estimated Adjustment Amount”).
On the Effective Date, Buyer shall pay to Seller the Estimated Closing Payment, by wire transfer of immediately available funds
to an account provided by Seller to Buyer in writing at least 3 days prior to the Effective Date.


 


(b)
Holdback Amount. The Holdback Amount will be retained by Buyer to secure and satisfy the performance of Seller’s
obligations under Section 3(c) and Section 7. Buyer shall release the Holdback Amount to Seller within 5 business
days of the Holdback Release Date; provided, however, that any portion of the Holdback Amount subject to Buyer’s
good faith claims under Section 3(c) or Section 7 will not be distributed to Seller (and will reduce the amounts
released to Seller pursuant to this sentence) unless and until Buyer’s good faith determination that such funds will not
be needed for such claims; provided, further, that, in order for Buyer to retain any portion of the Holdback Amount
for longer than 45 days after the Holdback Release Date, Buyer must have notified Seller in writing, prior to such time, of the
claim(s) under Section 3(c) or Section 7 for which such portion of the Holdback Amount is being retained by Buyer.


 




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(c)
Post-Closing Adjustments. Within 90 days after the Effective Date, Buyer shall prepare a statement as of the Effective
Date (the “Closing Statement”) containing Buyer’s determination of Prepaid Revenues (calculated as of
the close of business on the Effective Date and in accordance with GAAP), Indebtedness outstanding as of immediately prior to
the Closing, and Seller Prepaid Expenses (calculated as of the close of business on the Effective Date and in accordance with
GAAP), and Buyer’s calculation of the Adjustment Amount. Seller will have 30 days after it receives the Closing Statement
(the “Review Period”) to notify Buyer in writing whether it agrees with the Closing Statement. If Seller notifies
Buyer that it agrees with, or if Seller does not respond to, the Closing Statement within the Review Period, then the Closing
Statement will be deemed agreed and will be conclusive, final and binding on the Parties. If Seller notifies Buyer in writing
within the Review Period that it does not agree with the Closing Statement, which notice must include the amount of and basis
for the disagreement and supporting documentation (the “Dispute Notice”), then Seller and Buyer shall negotiate
in good faith to resolve the disagreement, and any matters in the Dispute Notice that are resolved in writing by Seller and Buyer
will be conclusive, final and binding on the Parties. Any portion of the Closing Statement that is not disputed in the Dispute
Notice will be deemed agreed and will be conclusive, final and binding on the Parties. If Seller and Buyer do not resolve all
of the matters in the Dispute Notice within 30 days (or such longer period as they agree) then they shall submit the remaining
unresolved matters (the “Open Matters”) to a nationally recognized independent accounting firm that they mutually
select (the “Independent Accountant”) for resolution. If Open Matters are submitted to the Independent Accountant,
(i) Seller and Buyer shall provide to the Independent Accountant such documents and information relating to the Open Matters as
the Independent Accountant reasonably requests and will have the opportunity to present the Open Matters to the Independent Accountant
(and copies of any materials provided by any Party to the Independent Accountant shall be delivered concurrently to the other
Party); (ii) the Independent Accountant shall consider only the Open Matters, shall base its determination solely on the materials
submitted by Seller and Buyer and this Section 3(c) and related definitions (and not on an independent review) and may
not assign a value to any item greater than the greatest value or less than the smallest value claimed by the Parties in the Closing
Statement or the Dispute Notice; (iii) Seller and Buyer shall instruct the Independent Accountant to provide a written determination
of the Open Matters within 60 days of their submission, and such determination will be conclusive, final and binding on the Parties
(except in the case of manifest error or fraud); (iv) Seller and Buyer shall each pay 50% of the fees and costs of the Independent
Accountant; and (v) the Independent Accountant shall act as an expert, not as an arbitrator, in determining the Open Matters.
No later than 5 business days following the final agreement or determination of the Adjustment Amount pursuant to this Section
3(c) (the “Final Adjustment Amount”), the following payments shall be made: (A) if the Final Closing Payment
is less than the Estimated Closing Payment, Seller shall pay to Buyer cash in an amount equal to the difference between the Estimated
Closing Payment and the Final Closing Payment (provided that Buyer has the option to instead retain all or any portion
of such amount from the Holdback Amount); and (B) if the Final Closing Payment is greater than the Estimated Closing Payment,
Buyer shall pay to Seller cash in an amount equal to the difference between the Final Closing Payment and the Estimated Closing
Payment. Any amount paid pursuant to this Section 3(c) will be treated as an adjustment to the purchase price for tax reporting
purposes.


 


4.
Closing Transactions and Deliveries; Further Actions; Transition Matters.


 


(a)
The Closing; Closing Deliveries. The closing of the transactions under this Agreement (the “Closing”)
will take place on the Effective Date. At or prior to the Closing:


 


(i)
Buyer shall deliver to Seller the Estimated Closing Payment pursuant to Section 3(a).


 


(ii)
Seller shall deliver to Buyer an executed bill of sale and assignment and assumption agreement, in the form of the attached Exhibit
A.


 


(iii)
Seller shall enter into a transition services agreement with Buyer, or an affiliate of Buyer, in the form of the attached Exhibit
B (the documents listed in clauses (ii) and (iii) are collectively the “Ancillary Agreements”).


 


(iv)
Seller shall deliver to Buyer an executed restrictive covenant agreement from each of Semyon Dukach, John L. Troost, Vadim Yasinovsky,
David Buckel and Richard Carlson, each in the form of the attached Exhibit C.


 


(v)
Seller shall deliver to Buyer all Customer Contracts, all Affiliate Partner Contracts, all contracts listed on the attached Schedule
A-5, all tangible Assets and all books and records related to the Business, the Assets or the Assumed Liabilities, including
(A) customer and partner lists and data, including full name, contact, email, mailing address, phone, other billing information
and any restrictions on the use of such customer or partner’s information; and (B) all information used to process and collect
or make payments with respect to each Customer Account and Affiliate Partner Account (e.g., credit/debit card, ACH, PayPal, etc.
information), including full name, card/account number, expiration date, security number (if applicable) and evidence that the
applicable Customer Account or Affiliate Partner Account has agreed to such payment method; provided that Seller may retain
copies of the documents described in this Section 4(a)(vi) to the extent permitted under Section 10(c).


 




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(vi)
Seller shall deliver to Buyer a schedule setting forth the net book value of each Asset as of the Effective Date.


 


(vii)
Seller shall deliver to Buyer (A) a loan modification agreement from Western Alliance Bank (“Lender”), in form
and substance satisfactory to Buyer, pursuant to which Lender (1) consents to the transactions under this Agreement, (2) agrees
that, at the Closing, any Encumbrances that Lender has placed on the Assets will automatically and irrevocably terminate and be
released, and (3) agrees to file (or authorizes Seller or Buyer to file) applicable Uniform Commercial Code termination statements
and/or other release documents, in form and substance satisfactory to Buyer, to effect and evidence the release of any Encumbrances
on the Assets (the “Lender Consent”); and (B) evidence satisfactory to Buyer that each holder of any Encumbrances
on the Assets (other than Lender) has irrevocably released such Encumbrances and filed applicable Uniform Commercial Code termination
statements and/or other release documents with respect to such Encumbrances.


 


(viii)
Seller shall deliver to Buyer a consent from Message Systems, Inc., in form and substance satisfactory to Buyer, pursuant to which
Message Systems, Inc. consents to the assignment by Seller to Buyer of the Software End User Agreement between Seller and Message
Systems, Inc. dated March 31, 2011, as amended.


 


(b)
Processing Agreements. Within 30 days after the Effective Date, Seller shall consolidate all of the Business’s credit
card processing services to be with Chase Paymentech, and, when requested by Buyer, Seller shall execute and deliver such agreements
and instruments, and take such actions, as Buyer may reasonably request to assign the agreement between the Business and Chase
Paymentech to Buyer (including cooperating with Buyer to seek any necessary consent and executing an assignment agreement). In
addition, if and only if requested by Buyer, Seller will execute and deliver such agreements and instruments, and take such actions,
as Buyer may reasonably request to assign the agreement between the Business and PayPal to Buyer (including cooperating with Buyer
to seek any necessary consent and executing an assignment agreement).


 


(c)
Further Actions. At any time and from time to time after the Effective Date and without further consideration, each Party
shall promptly execute and deliver such agreements and instruments, and take such actions, as the other Party may reasonably request
in order to more effectively transfer, convey, record and assign the Assets to Buyer, confirm Buyer’s title to the Assets
free and clear of any Encumbrances, permit Buyer to operate the Business and otherwise carry out the purpose and intent of this
Agreement (including seeking approval of or providing notices of assignment of Customer Contracts, Affiliate Partner Contracts
and contracts listed on the attached Schedule A-5 in compliance with such contracts, causing applicable Intellectual Property
Assets to be registered in the name of Buyer or an affiliate of Buyer, and cooperating with Buyer on any notice required under
the Investment Canada Act). If Buyer, Seller or any of their affiliates discovers that any asset related to or used in the Business
was not conveyed to Buyer at the Closing, then Buyer and Seller shall cooperate in good faith to ensure that Buyer receives the
benefit of such asset. Without limiting the previous sentence, if there are any intellectual property or proprietary rights owned
by Seller or its affiliates that cover any aspect of the Business (including the Beacon software and related code), then Seller
and its affiliates hereby grant to Buyer and its affiliates a non-exclusive, worldwide, irrevocable, perpetual, fully paid up,
royalty-free license to make, use, import, offer to sell, sell, display and practice such intellectual property or proprietary
rights in connection with the Business; provided, however, that the license granted to Buyer and its affiliates
pursuant to this sentence with respect to the “Contact Us” form and related code included in the Business’s
website will terminate 1 year after the Effective Date.


 


(d)
Payments for Account of Buyer. To the extent that, after the Closing, Seller receives any payment that is for the account
of Buyer according to the terms of this Agreement, Seller shall promptly deliver the amount of such payment to Buyer.


 




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5.
Representations and Warranties of Seller. Seller represents and warrants to Buyer as follows:


 


(a)
Organization; Authority; Enforceability. Seller is a corporation duly formed, validly existing and in good standing under
the laws of Delaware. Seller has the unrestricted right, power and authority (and all necessary approvals), and no consent by
stockholders of Seller is required, to execute and deliver, and to perform and consummate the obligations and transactions under,
this Agreement and the Ancillary Agreements. This Agreement and the Ancillary Agreements constitute legal, valid and binding obligations
of Seller, enforceable in accordance with their terms.


 


(b)
No Conflict; No Consents. Except as set forth on the attached Schedule 5(b), neither the execution and delivery
of this Agreement or the Ancillary Agreements, nor the performance or consummation of any obligations or transactions under this
Agreement or the Ancillary Agreements, will (with or without notice or lapse of time or both): (i) conflict with or violate any
organizational documents of Seller or any law or regulation applicable to Seller, (ii) conflict with or violate any contract to
which Seller is a party or by which Seller or any Assets is bound; or (iii) result in any Encumbrance on the Assets. Seller is
not required to give any notice to, obtain any consent or license from or make any filing with any person or entity (including
any governmental authority) in connection with, or in order to prevent a breach of, default under, termination or modification
of, or right to exercise any right under any Asset as a result of, this Agreement or the Ancillary Agreements or any transactions
or obligations under this Agreement or the Ancillary Agreements.


 


(c)
Title; No Encumbrances. Seller owns and has good and marketable title to all of the Assets, and at the Closing Seller is
transferring to Buyer good and marketable title to all of the Assets, in each case free and clear of any Encumbrances. No affiliate
of Seller participates in the conduct of the Business, is party to any arrangement with the Business or owns, uses or has any
interest in any Assets. The tangible Assets are in good condition and repair (except for ordinary wear and tear) and are suitable
for their intended use in the Business. The accounts receivable included in the Assets are valid obligations that have arisen
only from bona fide sale transactions in the ordinary course of business, are not subject to set off or other defenses or disputes
and are collectible in the ordinary course of business.


 


(d)
Sufficiency of Assets. The Assets include all of the assets, tangible and intangible, of any kind necessary for Buyer to
operate the Business after the Closing in the same the manner as currently operated (or as currently proposed to be operated)
by Seller. The Assets will be available for use by Buyer immediately after the Closing on the same terms and conditions as currently
applicable to Seller or the Business.


 


(e)
Intellectual Property Assets. The attached Schedule A-3 contains a description of all Intellectual Property Assets,
including application and registration numbers (as applicable) and a list of existing agreements conveying rights and interests
to any Intellectual Property Asset (including licenses and covenants not to sue). Prior to the Closing, Seller has delivered to
Buyer authorization codes or keys for the domain names included in the Intellectual Property Assets. All Intellectual Property
Assets are in effect, valid and enforceable, and, except as set forth on the attached Schedule 5(e), Seller has not received
any notice or claim related to the validity, enforceability, patentability, registrability, use, ownership or scope of any Intellectual
Property Assets. None of the Intellectual Property Assets are subject to any maintenance fee, tax, renewal, filing or other action
due within 60 days after the Closing. There has been no act or inaction by Seller or, to Seller’s knowledge, any prior owners
of the Intellectual Property Assets that has given or could reasonably be expected to give rise to a bar that prevents the enforcement
of any Intellectual Property Assets. Except as set forth on the attached Schedule 5(e), neither the operation of the Business
nor use of Intellectual Property Assets by (or with the permission of) Seller has infringed, misappropriated or violated any intellectual
property rights of any person or entity, and Seller has not received any notice or claim of such matters, including any cease
and desist demand or offer or request to license intellectual property. No infringement, misappropriation or violation of any
intellectual property rights of any person or entity will occur as a result of the operation of the Business or use of Intellectual
Property Assets by (or with the permission of) Buyer after the Closing in the same manner as currently operated or used (or as
currently proposed to be operated or used) by Seller. Seller has taken all reasonably necessary steps to protect and maintain
the Intellectual Property Assets, and has complied with any applicable marking requirements. The documentation related to each
Intellectual Property Asset that is a trade secret is current, accurate and sufficient in detail and content to identify and explain
it and to allow its full and proper use without reliance on the knowledge of any individual. Each current or former service provider
of Seller who has had authorized access to any confidential or proprietary information and/or been involved with or participated
in the creation or development of any intellectual property has executed and delivered to Seller an agreement prohibiting the
improper use or disclosure by such person of any confidential or proprietary information of Seller, including customer and partner
lists, and providing for the assignment by such person to Seller of any intellectual property arising out of such person’s
services with Seller (each, a “Service Provider Agreement”).


 




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(f)
Data Privacy and Security. Seller has reasonable policies and safeguards in place to protect personal information, confidential
information and trade secrets in Seller’s possession or control (“Data”) from unauthorized access or
use. Seller has not (i) experienced any material loss or theft of Data or security breach relating to Data, (ii) committed or
experienced a material violation of any policy regarding Data or illegal or unauthorized access to or use of Data or (iii) unintendedly
or improperly disclosed Data.


 


(g)
Compliance. Seller has been in compliance, in all material respects, with all applicable laws and regulations related to
the operation of the Business or the ownership of the Assets. Seller has not received any notice or claim related to any violation
of such laws or regulations. Neither Seller, nor any person acting at the direction of Seller, has directly or indirectly (i)
made or received any unlawful bribes, kickbacks or similar payments, (ii) made any contributions to a political party or candidate
or (iii) made any improper foreign payment under the U.S. Foreign Corrupt Practices Act of 1977, as amended, or analogous non-U.S.
laws.


 


(h)
No Proceedings. There are no Proceedings pending or to Seller’s knowledge threatened against or affecting Seller,
and there are no orders or judgments outstanding against or affecting Seller, that (i) relate to or could materially and adversely
affect the Assets, the Assumed Liabilities or the Business or (ii) challenge, prohibit or could prevent, delay or interfere with
the transactions under this Agreement.


 


(i)
Contracts. Each Customer Contract, each Affiliate Partner Contract and each contract listed on the attached Schedule
A-5 is a legal, valid and binding obligation of Seller and the counterparty, enforceable in accordance with its term, is in
full force and effect, and materially conforms to Seller’s standard form customer or partner agreement (which has been provided
to Buyer). Seller has provided to Buyer true and complete copies of all Customer Contracts, Affiliate Partner Contracts and contracts
listed on the attached Schedule A-5. There has been no material breach or default, request to terminate or amend, or material
dispute under any Customer Contract, Affiliate Partner Contract or contract listed on the attached Schedule A-5. No Customer
Contract, Affiliate Partner Contract or contract listed on the attached Schedule A-5 restricts Seller’s ability to
freely engage in the Business. No Customer Contract, Affiliate Partner Contract or contract listed on the attached Schedule
A-5 is shared between the Business and Seller’s other businesses. Schedule A-1 and Schedule A-2 fairly
present the statement of the revenues generated by each of the Customer Accounts and Affiliate Partner Accounts (determined in
accordance with GAAP) for Seller’s most recently ended fiscal year.


 


(j)
Ordinary Course. Since December 31, 2015, Seller has operated the Business in all material respects in the ordinary course
of business consistent with past practices, and there has been no change, development or occurrence that has had, or would reasonably
be expected to have, a material adverse effect on the Business or the Assets or Assumed Liabilities.


 


(k)
Taxes. Seller has timely filed all tax returns with respect to the Business that it was required to file. All taxes due
and payable by Seller related to the Business have been timely paid. Except as set forth on the attached Schedule 5(k),
no dispute or claim concerning any tax of Seller related to the Business has been made by any taxing authority.


 


(l)
Solvency. As of immediately before and after the Closing, Seller (i) is not and will not be insolvent or left with unreasonably
small capital, (ii) has not and will not have incurred debts beyond its ability to pay such debts as they mature, and (ii) has
not and will not have liabilities in excess of the reasonable market value of its assets, and no transfer of property is being
made and no obligation is being incurred under this Agreement with the intent to hinder, delay or defraud present or future creditors
of Seller.


 




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(m)
Accuracy of Information. All information and documentation provided to Buyer by or on behalf of Seller relating to the
Assets, the Assumed Liabilities or the Business is accurate and complete in all material respects. Except as specifically disclosed
to Buyer in writing, there is no obligation, liability or fact (whether or not absolute, matured, accrued, due, asserted or known)
that adversely affects the Assets, the Assumed Liabilities, the Business or the transactions under this Agreement.


 


(n)
No Other Representations and Warranties. Except for the representations and warranties contained in this Section 5
(including the related portions of the Schedules), neither Seller nor any other Seller Parties has made or makes any other express
or implied representation or warranty, either written or oral, on behalf of Seller, including any representation or warranty as
to the accuracy or completeness of any information regarding the Business and the Assets furnished or made available to Buyer
and the Buyer Parties (including any information, documents or material delivered to Buyer or made available to Buyer in Seller’s
online data room, management presentations or any other form in expectation of the transactions contemplated hereby) or as to
the future revenue, profitability or success of the Business, or any representation or warranty arising from statute or otherwise
in law. Notwithstanding the foregoing, nothing in this Section 5(n) shall limit Buyer’s rights and remedies in the
case of fraud, intentional misrepresentation or willful misconduct.


 


6.
Representations and Warranties of Buyer. Buyer represents and warrants to Seller that: (i) Buyer is a company duly formed,
validly existing and in good standing under the laws of Nova Scotia; (ii) Buyer has the unrestricted right, power and authority
(and all necessary approvals) to execute and deliver, and to perform and consummate the obligations and transactions under, this
Agreement and the Ancillary Agreements to which Buyer is a party; (iii) this Agreement and the Ancillary Agreements to which Buyer
is a party constitute legal, valid and binding obligations of Buyer, enforceable in accordance with their terms; (iv) Buyer has
sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Cash Purchase Price
and consummate the transactions contemplated by this Agreement; (v) there are no Proceedings pending or, to Buyer’s knowledge,
threatened against or by Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this
Agreement; and (vi) Buyer has conducted its own independent investigation, review and analysis of the Business and the Assets.
Buyer acknowledges and agrees that neither Seller nor any other person related to Seller has made any representation or warranty
as to Seller, the Business or the Assets, except as expressly set forth in Section 5 of this Agreement (including the related
portions of the Schedules).


 


7.
Indemnification by Seller. Seller shall indemnify and hold harmless the Buyer Parties, and shall reimburse the Buyer Parties,
for any loss, liability, obligation, Proceeding, tax, damage, cost or expense (including interest, penalties, reasonable attorneys’
fees and expenses and all amounts paid in investigation, defense or settlement) (“Losses”) arising out of,
resulting from or in connection with: (a) any inaccuracy or breach of any representation, warranty, covenant or obligation of
Seller in this Agreement or the Ancillary Agreements; (b) the ownership of the Assets or operation of the Business on or prior
to the Effective Date; or (c) any Retained Liabilities; except that no Losses may be claimed under this Section 7 by the
Buyer Parties to the extent such Losses have been taken into account in the calculation of the Final Adjustment Amount. Buyer
shall retain from the Holdback Amount any amount for which Seller is liable under this Section 7 (and if the Holdback Amount
is insufficient to cover such amount, then Seller is responsible for paying the deficiency in cash to Buyer within 20 business
days after such deficiency is determined to exist). Seller’s obligations under this Section 7 shall not be affected
by any investigation conducted by or knowledge of the Buyer Parties.


 


8.
Indemnification by Buyer. Buyer shall indemnify and hold harmless the Seller Parties, and shall reimburse the Seller Parties,
for any Losses arising out of, resulting from or in connection with: (a) any inaccuracy or breach of any representation, warranty,
covenant or obligation of Buyer in this Agreement; (b) the ownership of the Assets or operation of the Business after the Effective
Date, other than the Retained Liabilities; or (c) any Assumed Liabilities.


 




    	8



    	 



    

 


9.
Other Indemnification Matters. Any Party seeking indemnification under this Agreement shall notify the indemnifying Party
in writing of the claim and the basis for the claim; provided, however, that failure to provide notice will not
affect the indemnifying Party’s obligations. Payments by any indemnifying Party pursuant to Section 7 or Section
8 in respect of any Loss shall be reduced by the amount of any duplicative insurance proceeds and any duplicative indemnity,
contribution or other similar payment actually received by the indemnified Party in respect of the applicable Loss; provided
that the amount of such proceeds or payment actually received shall be net of (i) any deductibles for the applicable insurance
policies, (ii) any increase in the premium for the applicable insurance policies arising from such Loss and (iii) any other costs
incurred by the indemnified Party in connection with collecting such proceeds or payment. The maximum liability of Seller or Buyer
under this Agreement for indemnification obligations under Section 7 or Section 8 shall not exceed the Cash Purchase
Price (except in the case of fraud, intentional misrepresentation or willful misconduct). Any amount paid pursuant
to Section 7 or Section 8 will be treated as an adjustment to the purchase price for tax reporting purposes.


 


10.
Non-Compete; Non-Solicit; Non-Disparagement; Confidentiality.


 


(a)
Non-Compete; Non-Solicit. As an inducement for Buyer to enter into and deliver the consideration contemplated by this Agreement,
Seller agrees that, for a period of 3 years after the Effective Date, each such Party shall not, and shall cause its affiliates
not to, directly or indirectly: (i) engage or invest in, own, manage, operate, finance, control or participate in the ownership,
management, operation, financing or control of, be associated or connected with, render services or advice or other aid to, or
guarantee any obligation of, any person or entity engaged in or planning to become engaged in any SMTP relay or email delivery
business, or any business that competes with the Business, anywhere in the world; (ii) induce or attempt to induce any customer,
reseller, partner, supplier, licensee, employee, consultant or other business relation to cease doing business with or providing
services to Buyer or in any way interfere with the relationship between any such business relation and Buyer; or (iii) solicit
or hire any person who is employed by Buyer.


 


(b)
Non-Disparagement. Seller shall not make, at any time, any comment that disparages the Assets, the Business or the Buyer
Parties.


 


(c)
Confidentiality. Except to the extent required by law, Seller shall, and shall cause its affiliates and representatives
to, (i) not disclose or use any Confidential Information and (ii) promptly deliver to Buyer or destroy (at Buyer’s option)
any Confidential Information that remains in their possession or control after complying with Section 4(a)(vi); except
that Seller may retain copies of Confidential Information to the extent such copies are stored on Seller’s IT backup and
disaster recovery systems until the ordinary course deletion of such copies (and such copies shall remain subject to this Section
10(c) for so long as they are retained by Seller). If Seller is required by law to disclose any Confidential Information,
Seller shall promptly notify Buyer of the scope and content of the required disclosure, the reasons that the disclosure is required
by law and the time and place that the disclosure is required to be made. Seller shall give Buyer the opportunity to seek a protective
order or other appropriate remedy prior to disclosure of the applicable Confidential Information, shall limit any disclosure to
the precise terms of the legal requirement and shall use reasonable efforts to obtain an order or other reliable assurance that
confidential treatment will be given to any information disclosed. “Confidential Information” means (i) all
information concerning Buyer or the Business (including any confidential information of third parties held by the Business) and
all materials containing such information, whether or not designated as confidential and in any form or medium, and (ii) the terms
or existence of this Agreement and the Ancillary Agreements and the transactions contemplated by this Agreement and the Ancillary
Agreements (except to the extent disclosed in compliance with Section 10(c)); provided, however, that Confidential
Information does not include any information which is available to the general public other than due to disclosure by Seller.


 




    	9



    	 



    

 


(d)
Acknowledgements. Seller acknowledges and agrees that (i) Seller has acquired confidential and proprietary information
related to the Business, (ii) Seller is receiving valuable consideration under this Agreement and therefore has a material economic
interest in the transactions contemplated by this Agreement, (iii) Buyer would not have entered into this Agreement without the
covenants in this Section 10, and (iv) the covenants in this Section 10 are reasonable as to period, scope and geographical
area and are necessary for the protection of Buyer’s legitimate interests in its acquisition of the Assets (including the
goodwill related to the Business) pursuant to this Agreement. If at the time of enforcement of any provision of this Section
10, a court holds that any restrictions in this Section 10 are unreasonable under the circumstances then existing,
the Parties agree that the court will be allowed to revise this Section 10 to substitute the maximum period, scope and
geographical area reasonable under such circumstances, as applicable. Seller agrees that monetary damages would not be an adequate
remedy for any breach or threatened breach of this Section 10 and that Buyer is entitled to specific performance and injunctive
relief in order to enforce this Section 10 without having to prove damages or post a bond (in addition to any other rights
and remedies existing in Buyer’s favor).


 


11.
Tax Matters. Seller is responsible for its pro rata share of the current year’s property, ad valorem and similar
taxes with respect to the Assets and the Business, for the period from January 1 through the Effective Date. All transfer, sales
and use taxes, withholding taxes and similar charges on the transfer of the Assets will be borne by Seller. Seller shall cooperate
with Buyer, as reasonably requested by Buyer, in connection with the preparation and filing of any tax return and any Proceeding
with respect to taxes related to the Business or the Assets. Within 120 days after the Effective Date (or, if later, as soon as
practicable after determination of the Final Adjustment Amount), Buyer shall deliver to Seller an allocation of the final Cash
Purchase Price (as adjusted by the Final Adjustment Amount) and the Assumed Liabilities among the Assets (“Allocation
Schedule”). The Allocation Schedule shall be prepared in accordance with Section 1060 of the Internal Revenue Code of
1986, as amended. The Allocation Schedule shall be deemed final unless Seller notifies Buyer in writing that Seller objects to
one or more items reflected in the Allocation Schedule within 30 days after delivery of the Allocation Schedule to Seller. In
the event of any such objection, Seller and Buyer shall negotiate in good faith to resolve such dispute, and any matters in the
Allocation Schedule that are resolved in writing by Seller and Buyer will be deemed final. Any portion of the Allocation Schedule
that is not identified in Seller’s objection notice will be deemed final. If Seller and Buyer are unable to resolve any
dispute with respect to the Allocation Schedule within 30 days after the delivery of Seller’s objection notice, such dispute
shall be resolved by the Independent Accountant pursuant to similar conditions and procedures, as applicable, as described in
Section 3(c) relating to the resolution of Open Matters. The fees and expenses of the Independent Accountant shall be borne
equally by Seller and Buyer. Seller and Buyer shall file their respective IRS Forms 8594 and all applicable tax returns in accordance
with the final Allocation Schedule and shall not take any tax position inconsistent with the final Allocation Schedule. Any payment
pursuant to Section 7 or Section 8 will be apportioned consistent with such allocation.


 


12.
General Provisions.


 


(a)
Survival. All representations and warranties in this Agreement shall survive until the date that is 36 months after the
Effective Date; provided, however, that (i) any representation or warranty that would otherwise so expire shall
survive if a written notice is delivered pursuant to Section 9 prior to the end of the applicable survival period, until
the related claim for indemnification has been finally resolved, and (ii) the representations and warranties set forth in Sections
5(a)-(e) shall survive indefinitely. Each of the covenants or other agreements contained in this Agreement shall survive the
Effective Date until performed in full according to its terms. Notwithstanding the foregoing, any claim arising from fraud, intentional
misrepresentation or willful misconduct shall survive the Effective Date indefinitely.


 


(b)
Change of Name. Within 30 days after the Effective Date, Seller shall remove “SMTP” and any other Intellectual
Property Asset (and any other confusingly similar iteration to the foregoing), from the names (including d/b/a names) used by
Seller and its affiliates. After the Effective Date, except as expressly permitted by the Transition Services Agreement, Seller
shall cease using any Intellectual Property Assets (including on Seller’s website) and shall promptly deliver to Buyer or
destroy (at Buyer’s option) any marketing or similar materials containing any Intellectual Property Assets.


 


(c)
Post-Closing Services. Following the Closing, the Parties shall work in good faith to establish the terms and conditions
pursuant to which the Business would provide SMTP relay and email delivery services to Seller’s other businesses after the
termination of the Transition Services Agreement.


 




    	10



    	 



    

 


(d)
Public Announcements. Following the Effective Date, each Party shall be entitled to issue a written press release and/or
file a Current Report on Form 8-K announcing the transactions under this Agreement; provided that any such press release
or Form 8-K shall be subject to approval by both Buyer and Seller.


 


(e)
Notices. All notices under this Agreement must be in writing and will be deemed properly given (i) on the next business
day after deposit for overnight delivery by courier, (ii) 3 business days after mailing, by registered or certified mail, return
receipt requested, or (iii) upon confirmation of transmission by facsimile or e-mail of a PDF document if sent by 5 p.m. Pacific
time on a business day and otherwise on the next business day, in each case to the applicable address set forth below:


 


	 	For
    Buyer:	6922
    Hollywood Blvd., 5th Floor
	 	 	Los
    Angeles, CA 90028
	 	 	Attention:
    Legal Department
	 	 	Facsimile:
    (323) 297-2797


 


	 	For
    Seller: 	SharpSpring,
    Inc.
	 	 	Attention:
    Chief Financial Officer
	 	 	304
    West University Avenue
	 	 	Gainesville,
    FL 32601
	 	 	Email:
    edward.lawton@sharpspring.com


 


(f)
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State
of Delaware, without regard to conflict of law principles which would result in the application of the laws of another jurisdiction.
Each Party submits to personal jurisdiction in California and further agrees that any action relating to this Agreement will be
brought exclusively in a court in Los Angeles, California.


 


(g)
Costs. Except as otherwise expressly set forth in this Agreement, each Party is responsible for its own costs and expenses
incurred in connection with this Agreement and the transactions under this Agreement.


 


(h)
Withholding. Buyer is entitled to withhold from any amounts payable pursuant to this Agreement such amounts as it is required
to withhold under applicable tax law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority,
such amounts will be treated for purposes of this Agreement as having been paid to the party for which such withholding was made.


 


(i)
Miscellaneous. This Agreement (including the attached schedules and exhibits), the Ancillary Agreements and any other agreement
between the Parties executed on the Effective Date express the complete and final understanding of the Parties with respect to
the subject matter of such agreements, and supersede all prior agreements or communications among the Parties, whether written
or oral, with respect to the subject matter of such agreements. No modification of this Agreement will be effective unless in
writing and executed by the Parties. No waiver of any provision of this Agreement will be valid unless in writing and signed by
the Party against whom the waiver is sought to be enforced. Failure of a Party to enforce any right under this Agreement will
not constitute a waiver of future enforcement of such right or any other rights. If any provision of this Agreement is held to
be invalid by any court, the remainder of the Agreement will remain in force and will not be affected. No Party may assign any
of its rights or obligations under this Agreement without the prior written consent of the other Parties, except that Buyer may
without such consent assign any of its rights or obligations under this Agreement to any affiliate, to any lender as collateral
security or to any purchaser of all or any portion of the Business. This Agreement and all of its provisions are for the sole
and exclusive benefit of, and will be binding upon, the Parties and their successors and permitted assigns, and the Buyer Parties
where applicable, and nothing in this Agreement will give or be construed to give any other party any rights under this Agreement.
The language used in this Agreement has been chosen by the Parties to express their mutual intent, and no rule of strict construction
will be applied against any Party. The headings in this Agreement are for reference only and will not affect the meaning of this
Agreement. The word “including” means “including without limitation.” This Agreement may be executed in
counterparts, all of which taken together will constitute one agreement, and signatures exchanged by facsimile or .pdf will constitute
effective execution and delivery of this Agreement.


 


[Signatures
Follow]


 




    	11



    	 



    

 


The
Parties have executed this Agreement as of the Effective Date.


 


	 	THE
    ELECTRIC MAIL COMPANY, as Buyer
	 	 	 
	 	By:	/s/ Steve Dunn
	 	Name:	Steve
    Dunn
	 	Title:
    	President


 


	 	SHARPSPRING,
    INC., as Seller
	 	 	 
	 	By:
    	/s/ Edward
    Lawton
	 	Name:	Edward
    Lawton
	 	Title:
    	CFO


 


Signature
Page to Asset Purchase Agreement


 




    	 



    	 



    

 


Schedule
A-3


Intellectual
Property Assets


 


Included
Intellectual Property Assets


 


	 	1.	SMTP
    trademarks
	 	 	 
	 	2.	All
    software, code, databases, technology, platforms, products and services owned by Seller, or developed by or for Seller, in
    each case related to the Business
	 	 	 
	 	3.	SMTP.com
    websites (including any unreleased versions)
	 	 	 
	 	4.	Proprietary
    extensions, modules, plugins or add-ons to Message Systems software
	 	 	 
	 	5.	Proprietary
    extensions, modules, plugins or add-ons to PostFix software
	 	 	 
	 	6.	SMTP.com
    domain name and all other domain names used by the Business, including the following:


 


	 	bestemailbulk.com	onlineemailserver.com	 
	 	bestsmtpservers.com	outgoingsmtp.com	 
	 	blacklist.solutions	outgoingsmtpserver.com	 
	 	blockedsmtp.com	sendblastersmtp.com	 
	 	bulkemailbest.com	sendblastertrial.com	 
	 	businessemailserver.com	sendemailbulk.com	 
	 	businesssmtp.com	sendemailhtml.com	 
	 	businesssmtpserver.com	sendemailserver.com	 
	 	digitalpostmark.com	senderbulk.com	 
	 	email-smtp.com	sendmailsmtp.com	 
	 	email.solutions	sendsmtpemail.com	 
	 	emailblacklisted.com	sendsmtpmail.com	 
	 	emailbulksoftware.com	serverblocked.com	 
	 	emaildedicatedserver.com	serverbulk.com	 
	 	emaildeliverability.solutions	serversmpt.com	 
	 	emailmarketingpermission.com	serverssmtp.com	 
	 	emailnotsending.com	smtp-email.com	 
	 	emailonlineserver.com	smtp-email.marketing	 
	 	emailoutgoing.com	smtp.com	 
	 	emailserverbest.com	smtpblock.com	 
	 	emailserversmtp.com	smtpblocked.com	 
	 	emailsmtpserver.com	smtpemails.com	 
	 	emailsnotsending.com	smtpinc.net	 
	 	emailtargeted.com	smtpmailsend.com	 
	 	findemailserver.com	smtpmessage.com	 
	 	findsmtpserver.com	smtpmessages.com	 
	 	howtosendsmtp.com	smtpoutgoing.com	 
	 	mailonlineserver.com	smtpsend.com	 
	 	mailserverbest.com	smtpsendemail.com	 
	 	mailserversmtp.com	smtpsendmail.com	 
	 	massemailservice.com	smtpserver.email	 
	 	messagesending.com	smtpserver.solutions	 
	 	messagesmtp.com	transactionalemail.net	 
	 	messagessend.com	transactionalemail.org	 
	 	messagessending.com	whynotspam.com	 
	 	messagesserver.com	 	 
	 	messagessmtp.com	 	 
	 	mobileemailserver.com	 	 
	 	mobilesmtpserver.com	 	 
	 	mollymail.com	 	 


 


Excluded
Intellectual Property Assets


 


	 	1.	Beacon
    software and related code
	 	 	 
	 	2.	All
    open source software used by the Business (but excluding any proprietary extensions, modules, plugins or add-ons to such open
    source software)


 




    	 



    	 



    

 


Schedule
B


Estimated
Adjustment Amount


 


	Prepaid
    Revenues	 	$	288,874	 
	 	 	 	 	 
	50%
    of Prepaid Revenues	 	$	144,437	 
	 	 	 	 	 
	Indebtedness	 	$	0	 
	 	 	 	 	 
	Seller
    Prepaid Expenses	 	$	141,711	 
	 	 	 	 	 
	Estimated
    Adjustment Amount (reduces amount payable to Seller)	 	$	2,726	 



 




    	 



    	 



    

 


Schedule
5(b)


 


The
Lender Consent


 




    	 



    	 



    

 


Exhibit
A


Bill
of Sale and Assignment and Assumption Agreement


 


This
Bill of Sale and Assignment and Assumption Agreement (this “Agreement”) is made as of June __, 2016, by SharpSpring,
Inc., a Delaware corporation (“Assignor”), and The Electric Mail Company, a Nova Scotia company (“Assignee”).
Capitalized terms not otherwise defined in this Agreement have the meanings set forth in the Asset Purchase Agreement executed
by Assignor and Assignee on the same date as this Agreement (the “Purchase Agreement”).


 


Pursuant
to the Purchase Agreement, (i) Assignor has agreed to sell, transfer, convey, assign and deliver to Assignee, and Assignee has
agreed to purchase from Assignor, all of Assignor’s right, title and interest in, to and under the Assets, and (ii) Assignee
has agreed to assume the Assumed Liabilities from and after the Effective Date. In consideration of the foregoing premises and
the mutual covenants and agreements contained in the Purchase Agreement and in this Agreement, and for good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:


 


1.
Assignment of Assets. Assignor hereby sells, transfers, conveys, assigns and delivers to Assignee all right, title and
interest in, to and under the Assets, free and clear of any Encumbrances. Assignee hereby accepts all right, title and interest
in, to and under the Assets, to have and hold for use by Assignee and its successors and assigns from and after the date of this
Agreement.


 


2.
Assumption of Assumed Liabilities. Assignee hereby assumes, in the manner and to the extent set forth in the Purchase Agreement,
the Assumed Liabilities from and after the Effective Date. Except as specifically described in the previous sentence, Assignee
is not assuming and is not responsible for any debts, liabilities or obligations of Assignor (including the Retained Liabilities),
which will remain obligations of Assignor.


 


3.
Further Actions. After the date of this Agreement, and without further consideration, Assignor shall promptly execute and
deliver such agreements and instruments, and take such actions, as Assignee may reasonably request in order to complete the sale,
transfer, conveyance, recording, assignment and delivery to Assignee of all right, title and interest in, to and under the Assets,
free and clear of any Encumbrances.


 


4.
Purchase Agreement. The terms of the Purchase Agreement, including Assignor’s representations, warranties, covenants,
agreements and indemnities, are incorporated into this Agreement. Assignee acknowledges and agrees that Assignor makes no representation
or warranty with respect to the Assets being conveyed hereby except as specifically set forth in the Purchase Agreement. Assignor
acknowledges and agrees that the representations, warranties, covenants, agreements and indemnities contained in the Purchase
Agreement are not superseded or modified by this Agreement and remain in full force and effect to the extent provided in the Purchase
Agreement. In the event of any conflict or inconsistency between the terms of the Purchase Agreement and this Agreement, the terms
of the Purchase Agreement govern.


 


5.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without
regard to conflict of law principles which would result in the application of the laws of another jurisdiction.


 


6.
Miscellaneous. No modification or waiver of this Agreement will be effective unless in writing and executed by the parties.
No party may assign any of its rights or obligations under this Agreement without the prior written consent of the other parties,
except that Assignee may without such consent assign any of its rights or obligations under this Agreement to any affiliate, to
any lender as collateral security or to any purchaser of all or any portion of the Business. This Agreement and all of its provisions
are for the sole and exclusive benefit of, and will be binding upon, Assignee and Assignor and their successors and permitted
assigns, and nothing in this Agreement will give or be construed to give any other party any rights under this Agreement. This
Agreement may be executed in counterparts, all of which taken together will constitute one agreement, and signatures exchanged
by facsimile or .pdf will constitute effective execution and delivery of this Agreement.





[Signatures
Follow]


 




    	 



    	 



    

 


The
parties have executed this Bill of Sale and Assignment and Assumption Agreement as of the date first written above.


 


	 	SHARPSPRING,
    INC.
	 	 	 
	 	By:	/s/
    Edward Lawton
	 	Name:	Edward
    Lawton
	 	Title:
    	CFO
	 	 	 
	 	THE
    ELECTRIC MAIL COMPANY
	 	 	 
	 	By:
    	/s/ Steve Dunn
	 	Name:	Steve
    Dunn
	 	Title:
    	President


 


Signature
Page to Bill of Sale and Assignment and Assumption Agreement


 




    	 



    	 



    

 


Exhibit
B


Transition
Services Agreement


 


This
Transition Services Agreement (this “Agreement”), is made and entered into as of June 27, 2016 (the “Effective
Date”), between The Electric Mail Company, a Nova Scotia company (“Buyer”), and SharpSpring, Inc.,
a Delaware corporation (“Seller”). Buyer and Seller are sometimes individually called a “Party”
and collectively called the “Parties.” Capitalized terms not otherwise defined in this Agreement have the meanings
set forth in the Asset Purchase Agreement executed by Buyer and Seller on the same date as this Agreement (the “Purchase
Agreement”).


 


Pursuant
to and to the extent provided in the Purchase Agreement, Buyer has acquired from Seller certain assets and liabilities related
to the Business. Buyer wishes to retain Seller to provide certain transition services for the Business, pursuant to the terms
and conditions in this Agreement. The Parties agree as follows:


 


1.
Services.


 


(a)
Services. Seller shall provide to Buyer or its designee the services described in the attached Schedule A (the “Services”),
pursuant to the terms and conditions in this Agreement. Buyer may designate itself or any of its affiliates as the recipient of
the Services. Seller may, at its sole cost and expense, use its affiliates, personnel of Seller or its affiliates or subcontractors
to provide any portion of the Services; provided that all such affiliates, personnel and subcontractors are fully qualified
to perform the applicable Services, the use of subcontractors does not increase the cost to Buyer, and Seller remains liable for
such Services under this Agreement.


 


(b)
Standards and Performance. Seller shall perform its obligations under this Agreement in a professional and workman-like
manner, with at least the same degree of effort and care, functionality, reliability and quality of service historically used
or provided by Seller in relation to the Business prior to the Effective Date. Seller shall use commercially reasonable efforts
to ensure that the Services are given substantially equal priority and provided substantially equal treatment as other services
of a similar nature and scope provided by Seller for its business. Except as expressly set forth in this Agreement or in any contract
entered into between the Parties, Seller makes no representations and warranties of any kind, implied or expressed, with respect
to the Services, including warranties of merchantability or fitness for a particular purpose, which are specifically disclaimed.



 


(c)
Vendors. If the services of any third-party vendor are required in order for Seller to provide any Services under this
Agreement, Seller shall continue to make payments under and otherwise comply with Seller’s agreement with such vendor and
otherwise use Seller’s reasonable best efforts to ensure that the services of such vendor are available to Seller and Buyer
during the Term (on the same terms and conditions as currently applicable to the Business). If Seller fails to satisfy its obligations
in the foregoing sentence, Buyer may choose to make payments or comply with the applicable agreement on Seller’s behalf,
and in such case Seller shall promptly reimburse Buyer for the cost of taking such actions.


 


(d)
Consents. Notwithstanding anything in this Agreement to the contrary, if any third-party consents are required in order
for Seller to provide any Services under this Agreement, Seller shall use its reasonable best efforts to obtain such consents,
and, if still not obtained, Seller shall continue to provide services to Buyer or its designee that are substantially similar
to the Services for which such consent was sought but not obtained.


 


(e)
Service Management. Buyer shall manage the provision of the Services, and Buyer and Seller shall work together to facilitate
the successful provision of the Services. The Chief Financial Officer (or such other designee) of Seller and EJ McGowan (or such
other designee) of Buyer (collectively, the “Service Managers”) shall meet (which may be by phone) at least
once per week, or more frequently as reasonably requested by a Service Manager, to discuss the progress of the Services. Seller
and Buyer agree to cause their respective employees to work cooperatively to carry out their assigned functions under the leadership
of the Service Managers.


 



    	 



    	 



    

 








(f)
Access. Each Party shall give the other Party reasonable access, during normal business hours and at such other times as
reasonably requested, and upon reasonable prior notice, to its premises, personnel and information to the extent necessary to
enable the provision of the Services; provided, however, that (i) Buyer is entitled to have a representative present
for any communication with employees or representatives of Buyer, (ii) such access and incidental activities are undertaken in
accordance with applicable laws and Buyer’s policies and procedures, which policies and procedures Buyer will provide to
Seller in advance, and (iii) Buyer may impose reasonable restrictions and requirements for safety, confidentiality and privilege
purposes.


 


(g)
Proceeds. Seller shall deliver to Buyer, on each Friday during the Term and on the Friday first following the end of the
Term, all payments received by Seller for the Business prior to the end of the Term and not yet paid to Buyer, together with customer-level
details of such payments and such other supporting documentation and details as may reasonably be requested by Buyer. Such payments
shall be delivered to Buyer by wire transfer to the account specified by Buyer. The Parties acknowledge and agree that Seller
is receiving payments for the Business solely in its capacity as Buyer’s agent for collection. Prior to Seller making any
payment due to Buyer under this Section 1(g), Seller may offset against such payment any amounts payable by Buyer to Seller
pursuant to Section 2(a) for Services already performed by Seller but not yet paid for by Buyer; provided, however,
that Seller shall have delivered to Buyer a statement setting forth the amount of the offset, together with such billing data,
supporting documentation and level of detail as may reasonably be requested by Buyer (and such offset shall be reflected in the
applicable invoice delivered by Seller pursuant to Section 2(a)).


 


(h)
Email Delivery Services by the Business. During the 6 month-period after the Effective Date, Buyer shall cause the Business
to provide SMTP email delivery services to Seller’s SharpSpring and SharpSpring Mail+ customers free of charge. Such services
shall consist of the following services, on terms consistent with current levels of service provided by the Business: (i) email
delivery, (ii) reporting on delivery, utilization and other metrics and (iii) technical support for Seller and Seller’s
customers. Buyer shall perform its obligations under this Section 1(h) in a professional and workman-like manner, with
at least the same degree of effort and care, functionality, reliability and quality of service historically used or provided by
the Business prior to the Effective Date.


 


2.
Payment.


 


(a)
Billing and Payment. Buyer shall pay Seller fees for the Services as set forth on the attached Schedule A. After
the end of each month during the Term, Seller shall deliver an invoice to Buyer or its affiliate for the Services provided in
such month, together with such billing data, supporting documentation and level of detail as may reasonably be requested by Buyer.
Buyer shall pay the invoice within 30 days of Buyer’s receipt of the invoice and all billing data, supporting documentation
and level of detail that was reasonably requested by Buyer. Notwithstanding the foregoing, (i) Buyer may choose to pay all or
any portion of an invoice by agreeing to reduce one or more payments to be made by Seller to Buyer pursuant to Section 1(g),
and (ii) prior to Buyer making any payment due to Seller, Buyer may offset against such payment any amounts owed by Seller to
any Buyer Party pursuant to this Agreement or the Purchase Agreement.


 


(b)
Disputes. Notwithstanding the foregoing, if Buyer disputes the amount of any invoice, it will notify Seller in writing
of the dispute on or prior to the payment due date and will pay the undisputed portion of such invoice. In the event of such a
dispute, representatives of the Parties shall promptly meet and use reasonable efforts to resolve the dispute. If the parties
are unable to mutually agree upon a resolution of the disputed amount within 60 days after the original payment due date for such
invoice, the Parties may resolve such dispute in accordance with Section 7(d). When the disputed amount has been resolved,
either by mutual agreement of the Parties or by a final decision by a court of competent jurisdiction, Buyer shall pay any disputed
amount determined to be owed to Seller within 5 business days of such resolution (and, if any disputed amount is determined not
to be owed to Seller, but Buyer has already paid such amount to Seller for any reason, then Seller shall pay such amount to Buyer
within 5 business days of such resolution).


 




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(c)
Tax Matters. Seller and Buyer shall cooperate to determine which of Buyer and its affiliates will be the addressee of the
invoices. Buyer shall be responsible for all sales, use or similar taxes imposed or assessed on Buyer by applicable law as a result
of the provision of Services by Seller pursuant to this Agreement. The invoices provided by Seller shall include sufficient detail
to allow Buyer to determine the amount of any sales, use or similar taxes that it may owe in any applicable jurisdiction. Buyer
is entitled to withhold from any amounts payable pursuant to this Agreement such amounts as it is required to withhold under applicable
tax law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority, such amounts will be treated
for purposes of this Agreement as having been paid to the party for which such withholding was made.


 


3.
Term and Termination.


 


(a)
Term. The term of this Agreement (the “Term”) will commence on the Effective Date and terminate 6 months
after the Effective Date, unless sooner terminated as provided below; provided, however, that, with respect to all
Services provided by Seller other than the use of Seller’s personnel, Buyer may extend the Term on a month-to-month basis,
for up to an additional 6 months, by providing Seller with written notice prior to the end of the then-applicable Term. Even though
Seller will not be providing Buyer with use of Seller’s personnel after the date that is 6 months after the Effective Date,
Seller agrees that it will, for any remaining portion of the Term, have Seller’s personnel take such actions to the extent
necessary to comply with the provisions of this Agreement applicable to Seller, including Section 1(c).


 


(b)
Early Termination. At any time during the Term, Buyer will have the right to terminate this Agreement or any particular
Service by providing 10 business days’ advance written notice to Seller. Upon such termination, Seller shall cease performing
the Services referenced in such notice, and Buyer will not be obligated to pay for such Services performed after such time. If
Buyer terminates only a portion of the Services, the Parties shall cooperate in good faith to determine the portion of the fees
set forth on Schedule A that are allocable to the terminated Services (if such portion is not already specified on Schedule
A or previously agreed between the Parties).


 


(c)
Survival. Notwithstanding the foregoing, Section 4, Section 5, Section 6 and Section 7 shall
survive any termination or expiration of this Agreement.


 


4.
Confidentiality. Except to the extent required by law, Seller shall, and shall cause its affiliates and representatives to,
(i) not disclose or use any Confidential Information received by Seller in connection with the provision of the Services under
this Agreement, and (ii) promptly deliver to Buyer or destroy (at Buyer’s option) any such Confidential Information that
remains in their possession or control after the termination or expiration of this Agreement. If Seller is required by law to
disclose any such Confidential Information, Seller shall promptly notify Buyer of the scope and content of the required disclosure,
the reasons that the disclosure is required by law and the time and place that the disclosure is required to be made. Seller shall
give Buyer the opportunity to seek a protective order or other appropriate remedy prior to disclosure of the applicable Confidential
Information, shall limit any disclosure to the precise terms of the legal requirement and shall use reasonable efforts to obtain
an order or other reliable assurance that confidential treatment will be given to any information disclosed. Without limiting
the foregoing, the Confidential Information shall be accessible only to those affiliates or representatives of Seller who need
such access to perform the Services. Buyer will continue to comply with the provisions of any non-disclosure agreement in existence
between Buyer and Seller; provided that any such non-disclosure agreement will be deemed amended to apply only to confidential
information concerning the businesses retained by Seller after the Closing (and will no longer apply to any information concerning
or held by the Business).


 


5.
Indemnification. Subject to the limitations set forth in Section 6, Seller shall indemnify and hold harmless the Buyer
Parties, and shall reimburse the Buyer Parties, for any Losses arising as a result of any fraud, intentional misrepresentation,
willful misconduct, bad faith, gross negligence, infringement or misappropriation of intellectual property, or violation of law
by Seller, its affiliates or their respective employees or other representatives in connection with this Agreement, or any breach
of this Agreement by Seller. Subject to the limitations set forth in Section 6, Buyer shall indemnify and hold harmless
the Seller Parties, and shall reimburse the Seller Parties, for any Losses arising as a result of any breach of this Agreement
by Buyer or any fraud, intentional misrepresentation, willful misconduct, bad faith, gross negligence, infringement or misappropriation
of intellectual property (but only if such infringement or misappropriation is not caused by any facts or conditions related to
the Business existing on or prior to the Effective Date), or violation of law by Buyer, its affiliates or their respective employees
or other representatives in connection with this Agreement.


 




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6.
Limitation of Liability. Except in cases of fraud, intentional misrepresentation, willful misconduct, bad faith or gross negligence,
in no event will either Party or any of its affiliates be liable to any person for any incidental, indirect, special, consequential,
punitive or exemplary damages of any kind or nature, arising out of or in connection with this Agreement, regardless of the form
of action through which such damages are sought, and regardless of whether such Party has been advised of or foresees a possibility
of any such damages occurring. The foregoing does not impact any remedies of either Party under the Purchase Agreement.


 


7.
General Provisions.


 


(a)
Relationship of the Parties. Seller and Buyer are independent contractors. Nothing in this Agreement will be interpreted
so as to make the Parties partners, joint venturers, trustee/beneficiary, employer/employee or (except as expressly set forth
in Section 1(g)) principal/agent of the other. No Party shall have any authority to commit any other Party contractually
or otherwise, and no Party shall represent to any person or entity that it has authority to do so. All employees and representatives
of Seller will be deemed for all purposes (including compensation and employee benefits) to be employees or representatives solely
of Seller, and not to be employees, representatives or independent contractors of Buyer. In performing Seller’s duties under
this Agreement, all employees and representatives of Seller will be under the direction, control and supervision of Seller (and
not of Buyer), and Seller will have the sole right to exercise all authority with respect to the employment (including termination
of employment), assignment and compensation of such employees and representatives, subject to compliance with the terms and provisions
contained in this Agreement. Each Party is responsible for paying all wages, salaries and other amounts due to its respective
employees and is responsible for all obligations with respect to them relating to tax withholdings, unemployment insurance premiums,
workers’ compensation, health care and pension plan contributions and other similar responsibilities.


 


(b)
Ownership. Seller acknowledges and agrees that all work product created in connection with the Services or otherwise under
this Agreement shall be considered works made for hire. All right, title and interest in, to and under such work product, including
intellectual property rights with respect to such work product, shall be the sole and exclusive property of Buyer. To the extent
that any work performed by Seller under this Agreement does not constitute a work made for hire, Seller hereby assigns to Buyer
all right, title and interest that Seller may have (or may acquire) in, to and under all such work product, including all intellectual
property rights with respect to such work product. All data and information related to the Business that is generated or collected
in connection with the Services will be subject to the confidentiality provisions set forth in Section 4. During the Term,
Seller shall use any Intellectual Property Assets and any marketing or similar materials containing any Intellectual Property
Assets only as directed by Buyer. After the Term, Seller shall cease using any Intellectual Property Assets (including on Seller’s
website) and shall promptly deliver to Buyer or destroy (at Buyer’s option) any marketing or similar materials containing
any Intellectual Property Assets, except that Seller may retain copies of any marketing or similar materials containing any Intellectual
Property Assets to the extent such copies are stored on Seller’s IT backup and disaster recovery systems until the ordinary
course deletion of such copies (and such copies shall remain subject to Section 4 and this Section 7(b) for so long
as they are retained by Seller).


 


(c)
Notices. All notices under this Agreement must be in writing and will be deemed properly given (i) on the next business
day after deposit for overnight delivery by courier, (ii) 3 business days after mailing, by registered or certified mail, return
receipt requested, or (iii) upon confirmation of transmission by facsimile or e-mail of a PDF document if sent by 5 p.m. Pacific
time on a business day and otherwise on the next business day, in each case to the applicable address set forth in the Purchase
Agreement.


 




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(d)
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State
of Delaware, without regard to conflict of law principles which would result in the application of the laws of another jurisdiction.
Each Party submits to personal jurisdiction in California and further agrees that any action relating to this Agreement will be
brought exclusively in a court in Los Angeles, California.


 


(e)
Miscellaneous. This Agreement (including the attached schedules), the Purchase Agreement and any other agreement between
the Parties executed on the Effective Date express the complete and final understanding of the Parties with respect to the subject
matter of such agreements, and supersede all prior agreements or communications among the Parties, whether written or oral, with
respect to the subject matter of such agreements. To the extent there is any inconsistency between the terms of this Agreement
and the terms of the Purchase Agreement, the terms of the Purchase Agreement will control. To the extent there is any inconsistency
between the terms of the attached Schedule A and the terms in the rest of this Agreement, the terms of the attached Schedule
A will control. No modification of this Agreement will be effective unless in writing and executed by the Parties. No waiver
of any provision of this Agreement will be valid unless in writing and signed by the Party against whom the waiver is sought to
be enforced. Failure of a Party to enforce any right under this Agreement will not constitute a waiver of future enforcement of
such right or any other rights. If any provision of this Agreement is held to be invalid by any court, the remainder of the Agreement
will remain in force and will not be affected. No Party may assign any of its rights or obligations under this Agreement without
the prior written consent of the other Parties, except that Buyer may without such consent assign any of its rights or obligations
under this Agreement to any affiliate, to any lender as collateral security or to any purchaser of all or any portion of the Business.
This Agreement and all of its provisions are for the sole and exclusive benefit of, and will be binding upon, the Parties and
their successors and permitted assigns, and the Buyer Parties where applicable, and nothing in this Agreement will give or be
construed to give any other party any rights under this Agreement. The language used in this Agreement has been chosen by the
Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. The headings in
this Agreement are for reference only and will not affect the meaning of this Agreement. The word “including” means
“including without limitation.” This Agreement may be executed in counterparts, all of which taken together will constitute
one agreement, and signatures exchanged by facsimile or .pdf will constitute effective execution and delivery of this Agreement.


 


[Signatures
Follow]


 




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The
Parties have executed this Agreement as of the Effective Date.


 


	 	THE
    ELECTRIC MAIL COMPANY, as Buyer
	 	 	 
	 	By:	/s/
    Steve Dunn
	 	Name:	Steve
    Dunn
	 	Title:
    	President
	 	 	 
	 	SHARPSPRING,
    INC., as Seller
	 	 	 
	 	By:	/s/
    Edward Lawton
	 	Name:	Edward
    Lawton
	 	Title:
    	CFO


 


Signature
Page to Transition Services Agreement 


 




    	 



    	 



    


 


Schedule
A


Services
and Fees


 


During
the Term, Seller shall provide the staff and services necessary for Buyer to continue operating the Business and providing the
customers acquired from Seller the services previously provided to them by Seller. Such services shall include the following services,
to be performed in accordance with the standards and requirements described in this Agreement, all on behalf of and at the direction
of Buyer:


 


	●	Operate
    the Business on Buyer’s behalf, including operation of all Business applications and hardware, provision of customer
    and technical support services, as well as financial/accounting activities to reconcile revenues, charges, costs, etc.
	 	 
	●	Continue
    to perform and operate any and all other services and resources with regard to the Business that were performed prior to the
    Effective Date, except that all sales and marketing efforts conducted by Seller in respect of any Customer Accounts or Reseller
    Accounts will be solely as directed by, and done for the benefit of, Buyer.
	 	 
	●	Complete
    any backups and act upon any directions of Buyer in respect of servicing any customers and/or continuing the Business, at
    the request of Buyer.
	 	 
	●	Provide
    to Buyer, on a semi-monthly and month-end basis, the reports generated by Seller’s customer billing system and accounting
    system, including reports on billing (including the related service start and end dates and any non-recurring sales for each
    invoice), customer aging, collections, refunds, adjustments, chargebacks and credit memos, and sales tax return filed and
    sales tax paid.
	 	 
	●	Provide
    all required access to systems, software, servers, switches and/or data centers housing any equipment used by the Business,
    including any required access or identity cards.
	 	 
	●	Provide
    the resources and services required to support Buyer’s preparations for and execution of transitioning the Business
    to, and integrating the Business with, Buyer, as directed by Buyer, including:


 


	 	●	User
    integration, including user data and stored documents, files and history/logs and any necessary development and/or data output
	 	 	 
	 	●	Customer
    service historical data
	 	 	 
	 	●	Billing/accounting
    historical data
	 	 	 
	 	●	Customer
    service and/or technical support procedure, script and voiceover recording changes in support of the integration
	 	 	 
	 	●	Work
    with Buyer staff to transfer customer and usage data
	 	 	 
	 	●	Assist
    with certain tasks after-hours as may be necessary to recover from unforeseen issues or to minimize the impact on customers
    when performing potentially customer-facing changes
	 	 	 
	 	●	Transfer
    knowledge/processes for billing, collection and delinquency to Buyer
	 	 	 
	 	●	Hand
    over customer accounts (direct and indirect) to Buyer’s sales and marketing team


 


	●	Seller
    will use all reasonable endeavors to ensure that suppliers/vendors provide the necessary information and cooperation to successfully
    integrate the customer accounts and services with the businesses of Buyer or one of its affiliates, or the vendors/suppliers
    selected by Buyer.
	 	 
	●	Seller
    will use all reasonable endeavors to ensure that the individuals listed below are available to provide Services during the
    Term. 


 




    	 



    	 



    


 





Non-Personnel
Costs: During the Term, Buyer will reimburse Seller for actual internal costs (with allocations to be agreed upon by the Parties,
and excluding compensation payable to personnel) and third-party out-of-pocket costs to perform the Services, without any mark-up.


 


Ukraine
Personnel Costs: Buyer will reimburse Seller for actual internal costs (with allocations to be agreed upon by the Parties),
without any mark-up, of having the following individuals located in Ukraine perform the Services; provided that Buyer may, at
any time during the Term request that Seller reduce the number of personnel performing the Services (and the monthly charge for
personnel shall be reduced accordingly for each month during the Term after such request is made by Buyer). Buyer acknowledges
that the Services and work performed may be degraded if such a reduction request is made.


 


[redacted]


 


Other
Personnel Costs: The Parties agree that, in exchange for Buyer providing Seller with email delivery services as set forth
in Section 1(h), Seller shall provide Buyer with the following individuals’ services as part of the Services during
the 6 month-period after the Effective Date, without any further compensation or reimbursement to Seller; provided; however,
that the percentage of time that each such individual dedicates to providing the Services (based on such individual’s normal
hours during a regular work week) will not exceed the percentages set forth below.


 


[redacted]


 




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Exhibit
C


Form
of Restrictive Covenant Agreement


 


This
Restrictive Covenant Agreement (this “Agreement”) is made and entered into as of June __, 2016 (the “Effective
Date”), between The Electric Mail Company, a Nova Scotia company (“Buyer”), and ___________ (the
“Restricted Person”). Buyer and the Restricted Person are sometimes individually called a “Party”
and collectively called the “Parties.”


 


Buyer
and SharpSpring, Inc., a Delaware corporation (“Seller”), have entered into an Asset Purchase Agreement on
the same date as this Agreement (the “Purchase Agreement”), pursuant to which and to the extent provided in
the Purchase Agreement, Buyer has acquired from Seller certain assets and liabilities related to the Business. Capitalized terms
not otherwise defined in this Agreement have the meanings set forth in the Purchase Agreement.


 


The
Restricted Person owns a material equity interest in Seller and is an executive officer or director of Seller. The Restricted
Person has acquired confidential and proprietary information related to the Business. In addition, the Restricted Person is receiving
significant economic benefit from the consummation of the transactions contemplated by the Purchase Agreement.


 


The
execution and delivery of this Agreement by the Restricted Person is a material inducement to Buyer to enter into the Purchase
Agreement and consummate the transactions contemplated by the Purchase Agreement, and Buyer would not have entered into the Purchase
Agreement or agreed to such transactions without the execution and delivery of this Agreement by the Restricted Person.


 


The
Parties agree as follows:


 


1.
Non-Compete; Non-Solicit; Non-Disparagement; Confidentiality.


 


(a)
Non-Compete; Non-Solicit. As an inducement for Buyer to enter into and deliver the consideration contemplated by the Purchase
Agreement, the Restricted Person agrees that, for a period of 3 years after the Effective Date, the Restricted Person shall not,
and shall cause his affiliates not to, directly or indirectly: (i) engage or invest in, own, manage, operate, finance, control
or participate in the ownership, management, operation, financing or control of, be associated or connected with, render services
or advice or other aid to, or guarantee any obligation of, any person or entity engaged in or planning to become engaged in any
SMTP relay or email delivery business, anywhere in the world, except that nothing herein shall prohibit the Restricted Person
from purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation, provided that such
ownership represents a passive investment, the Restrictive Person has no active involvement in the business of such corporation
and the Restricted Person is not a controlling person of, or a member of a group that controls, such corporation; (ii) induce
or attempt to induce any customer, reseller, supplier, licensee, employee, consultant or other business relation to cease doing
business with or providing services to Buyer or intentionally or knowingly interfere with the relationship between any such business
relation and Buyer; or (iii) solicit or hire any person who is employed by Buyer.


 


(b)
Non-Disparagement. The Restricted Person shall not make, at any time, any comment that disparages the Assets, the Business
or the Buyer Parties. This Section 1(b) does not, in any way, restrict or impede the Restricted Person from making statements
that the Restricted Person can reasonably demonstrate are truthful and that are required to comply with any applicable law or
regulation or a valid order of a court of competent jurisdiction or an authorized government agency; provided that such compliance
does not exceed that required by the law, regulation or order.


 


(c)
Confidentiality. Except to the extent required by law, the Restricted Person shall, and shall cause his affiliates and
representatives to, (i) not disclose or use any Confidential Information and (ii) promptly deliver to Buyer or destroy (at Buyer’s
option) any Confidential Information that remains in his possession or control after the Effective Date in accordance with the
procedures set forth in the Purchase Agreement. If the Restricted Person is required by law to disclose any Confidential Information,
the Restricted Person shall promptly notify Buyer of the scope and content of the required disclosure, the reasons that the disclosure
is required by law and the time and place that the disclosure is required to be made. The Restricted Person shall give Buyer the
opportunity to seek a protective order or other appropriate remedy prior to disclosure of the applicable Confidential Information,
shall limit any disclosure to the precise terms of the legal requirement and shall use reasonable efforts to obtain an order or
other reliable assurance that confidential treatment will be given to any information disclosed. “Confidential Information”
means (i) all information concerning Buyer or the Business (including any confidential information of third parties held by the
Business) and all materials containing such information, whether or not designated as confidential and in any form or medium,
and (ii) the terms or existence of the Purchase Agreement and the Ancillary Agreements and the transactions contemplated by the
Purchase Agreement and the Ancillary Agreements; provided, however, that Confidential Information does not include
any information which is available to the general public other than due to disclosure by Seller or the Restricted Person.


 




    	 



    	 



    


 





(d)
Acknowledgements. The Restricted Person acknowledges and agrees that (i) he has acquired confidential and proprietary information
related to the Business, (ii) he is receiving valuable consideration as a result of the Purchase Agreement and the transactions
contemplated by the Purchase Agreement and therefore has a material economic interest in the transactions contemplated by the
Purchase Agreement, (iii) Buyer would not have entered into the Purchase Agreement without the covenants in this Section 1,
and (iv) the covenants in this Section 1 are reasonable as to period, scope and geographical area and are necessary for
the protection of Buyer’s legitimate interests in its acquisition of the Assets (including the goodwill related to the Business)
pursuant to the Purchase Agreement. If at the time of enforcement of any provision of this Section 1, a court holds that
any restrictions in this Section 1 are unreasonable under the circumstances then existing, the Parties agree that the court
will be allowed to revise this Section 1 to substitute the maximum period, scope and geographical area reasonable under
such circumstances, as applicable. The Restricted Person shall indemnify and hold harmless the Buyer Parties, and shall reimburse
the Buyer Parties, for any Losses arising out of, resulting from or in connection with any breach of this Agreement. Without limiting
the previous sentence, the Restricted Person agrees that monetary damages would not be an adequate remedy for any breach or threatened
breach of this Section 1 and that Buyer is entitled to specific performance and injunctive relief in order to enforce this
Section 1 without having to prove damages or post a bond (in addition to any other rights and remedies existing in Buyer’s
favor).


 


2.
General Provisions. 


 


(a)
Notices. All notices under this Agreement must be in writing and will be deemed properly given (i) on the next business
day after deposit for overnight delivery by courier, (ii) 3 business days after mailing, by registered or certified mail, return
receipt requested, or (iii) upon confirmation of transmission by facsimile or e-mail of a PDF document if sent by 5 p.m. Pacific
time on a business day and otherwise on the next business day, in each case to the applicable address set forth below:


 


	 	For
    Buyer:	6922
    Hollywood Blvd., 5th Floor
	 	 	Los
    Angeles, CA 90028
	 	 	Attention:
    Legal Department
	 	 	Facsimile:
    (323) 297-2797




 





For
the Restricted Person, to the address set forth on the signature page to this Agreement.


 


(b)
Miscellaneous. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without
regard to conflict of law principles which would result in the application of the laws of another jurisdiction. No modification
of this Agreement will be effective unless in writing and executed by the Parties. No waiver of any provision of this Agreement
will be valid unless in writing and signed by the Party against whom the waiver is sought to be enforced. Failure of a Party to
enforce any right under this Agreement will not constitute a waiver of future enforcement of such right or any other rights. If
any provision of this Agreement is held to be invalid by any court, the remainder of the Agreement will remain in force and will
not be affected. The Restricted Person may not assign any of his rights or obligations under this Agreement without the prior
written consent of Buyer. The Buyer may assign its rights or obligations under this Agreement to any affiliate, to any lender
as collateral security or to any purchaser of all or any portion of the Business. The language used in this Agreement has been
chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. This
Agreement may be executed in counterparts, all of which taken together will constitute one agreement, and signatures exchanged
by facsimile or .pdf will constitute effective execution and delivery of this Agreement.


 


[Signatures
Follow]


 




    	 	 2	 



    	 



    


 


The
Parties have executed this Agreement as of the Effective Date.


 


	 	BUYER:
	 	 	 
	 	THE
    ELECTRIC MAIL COMPANY
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	RESTRICTED
    PERSON:
	 	 	 
	 	Name:	 
	 	 	 
	 	Address:	 
	 	Facsimile:	 
	 	Email:	 


 


Signature
Page to Restrictive Covenant Agreement


 




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