Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
CONVERSIONPOINT HOLDINGS, INC.,
CONVERSIONPOINT TECHNOLOGIES, INC.,
CPT MERGER SUB, INC.,
INUVO, INC.,
and
CPT CIGAR MERGER SUB, INC.
Dated as of November 2, 2018
TABLE OF CONTENTS
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|
Page
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ARTICLE
I DEFINITIONS; CONSTRUCTION
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2
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Section
1.1
|
Definitions
|
2
|
Section
1.2
|
Construction
|
15
|
ARTICLE II THE
MERGERS
|
16
|
Section
2.1
|
The
CPT Merger
|
16
|
Section
2.2
|
The
Inuvo Merger
|
16
|
Section
2.3
|
Closings;
Effective Time
|
16
|
Section
2.4
|
Effect
of the CPT Merger
|
16
|
Section
2.5
|
Effect
of the Inuvo Merger
|
17
|
Section
2.6
|
Directors
and Officers of Parent and Parent Subsidiaries.
|
17
|
Section
2.7
|
Organizational
and Governing Documents of Parent
|
17
|
Section
2.8
|
Effect
on Parent Capital Stock
|
17
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ARTICLE
III EFFECT ON CAPITAL STOCK; EXCHANGE PROCEDURES
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18
|
Section
3.1
|
The
CPT Merger
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18
|
Section
3.2
|
The
Inuvo Merger.
|
21
|
Section
3.3
|
CPT
Merger and Inuvo Merger Exchange Procedures
|
23
|
Section
3.4
|
Adjustments
|
26
|
Section
3.5
|
Reservation
of Stock
|
26
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF CPT, PARENT, CPT MERGER SUB
AND INUVO MERGER SUB
|
26
|
Section
4.1
|
Organization
and Qualification
|
26
|
Section
4.2
|
Capitalization
|
27
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Section
4.3
|
Subsidiaries
|
30
|
Section
4.4
|
Authority;
Non-Contravention; Approvals
|
31
|
Section
4.5
|
CPT
Financial Statements
|
33
|
Section
4.6
|
Absence
of Undisclosed Liabilities
|
33
|
Section
4.7
|
Litigation
|
33
|
Section
4.8
|
Absence
of Certain Changes or Events
|
34
|
Section
4.9
|
Compliance
with Applicable Law; Permits
|
35
|
Section
4.10
|
CPT
Material Contracts; Defaults
|
36
|
Section
4.11
|
Taxes
|
37
|
Section
4.12
|
Employee
Benefit Plans; ERISA
|
39
|
Section
4.13
|
Labor
and Other Employment Matters
|
42
|
Section
4.14
|
Environmental
Matters
|
43
|
Section
4.15
|
Intellectual
Property
|
43
|
Section
4.16
|
Real
Property
|
45
|
Section
4.17
|
Insurance
|
46
|
Section
4.18
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Assets
|
47
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Section
4.19
|
Business
Relationships
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47
|
Table
of Contents
(continued)
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|
Page
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Section
4.20
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Related
Party Transactions
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47
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Section
4.21
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Certain
Business Practices
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48
|
Section
4.22
|
Brokers
and Finders
|
48
|
Section
4.23
|
Takeover
Laws
|
48
|
Section
4.24
|
Books
and Records
|
49
|
Section
4.25
|
Parent
Common Stock
|
49
|
Section
4.26
|
Information
Supplied
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49
|
Section
4.27
|
Financing.
|
49
|
Section
4.28
|
No
Additional Representations
|
50
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ARTICLE
V REPRESENTATIONS AND WARRANTIES OF INUVO
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50
|
Section
5.1
|
Organization
and Qualification
|
51
|
Section
5.2
|
Capitalization
|
51
|
Section
5.3
|
Subsidiaries.
|
53
|
Section
5.4
|
Authority;
Non-Contravention; Approvals
|
54
|
Section
5.5
|
Reports
and Inuvo Financial Statements
|
56
|
Section
5.6
|
Absence
of Undisclosed Liabilities
|
57
|
Section
5.7
|
Litigation
|
58
|
Section
5.8
|
Absence
of Certain Changes or Events
|
58
|
Section
5.9
|
Compliance
with Applicable Law; Permits
|
60
|
Section
5.10
|
Taxes
|
60
|
Section
5.11
|
Environmental
Matters
|
62
|
Section
5.12
|
Contracts
|
62
|
Section
5.13
|
Business
Relationships.
|
63
|
Section
5.14
|
Transactions
with Affiliates
|
63
|
Section
5.15
|
Certain
Business Practices
|
63
|
Section
5.16
|
Opinion
of Financial Advisor
|
64
|
Section
5.17
|
Brokers
and Finders
|
64
|
Section
5.18
|
Intellectual
Property.
|
64
|
Section
5.19
|
Off
Balance Sheet Arrangements
|
66
|
Section
5.20
|
Manipulation
of Price
|
66
|
Section
5.21
|
Intentionally
Omitted
|
66
|
Section
5.22
|
Employee
Benefit Plans; ERISA
|
66
|
Section
5.23
|
Labor
and Other Employment Matters
|
70
|
Section
5.24
|
Insurance
|
71
|
Section
5.25
|
Real
Property
|
72
|
Section
5.26
|
Assets
|
73
|
Section
5.27
|
Takeover
Laws
|
73
|
Section
5.28
|
Books
and Records
|
73
|
Section
5.29
|
Information
Supplied
|
74
|
Section
5.30
|
No
Additional Representations
|
74
|
Table
of Contents
(continued)
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Page
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ARTICLE VI
COVENANTS
|
74
|
Section
6.1
|
Conduct
of Business by CPT Pending the Closing
|
74
|
Section
6.2
|
Conduct
of Business by Inuvo Pending the Closing
|
77
|
Section
6.3
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Access
to Information; Confidentiality
|
81
|
Section
6.4
|
Employee
Matters
|
81
|
Section
6.5
|
Joint
Proxy Statement/Prospectus; Registration Statement
|
82
|
Section
6.6
|
Meetings
of Stockholders; Board Recommendations
|
83
|
Section
6.7
|
Public
Announcements
|
85
|
Section
6.8
|
Reasonable
Best Efforts
|
86
|
Section
6.9
|
Notification
of Certain Matters
|
88
|
Section
6.10
|
Agreements
With Respect to Parent Post Closing
|
88
|
Section
6.11
|
Indemnification;
Insurance
|
89
|
Section
6.12
|
No
Solicitation
|
90
|
Section
6.13
|
Section
351 Exchange
|
93
|
Section
6.14
|
Litigation
|
93
|
Section
6.15
|
Takeover
Laws and Rights
|
93
|
Section
6.16
|
Registration
Statement on Form S-8
|
93
|
Section
6.17
|
Financing
Covenant.
|
93
|
Section
6.18
|
Section 16
Matters
|
95
|
Section
6.19
|
Payment
of Certain Indebtedness.
|
96
|
Section
6.20
|
Merger
Sub Compliance
|
96
|
Section
6.21
|
Support
Agreements
|
96
|
Section
6.22
|
Further
Assurances
|
96
|
ARTICLE
VII CONDITIONS TO THE MERGERS
|
96
|
Section
7.1
|
Conditions
to the Obligations of Each Party
|
96
|
Section
7.2
|
Additional
Conditions to Obligations of CPT
|
97
|
Section
7.3
|
Additional
Conditions to Obligations of Inuvo
|
98
|
Section
7.4
|
Frustration
of Closing Conditions
|
99
|
ARTICLE VIII
TERMINATION
|
99
|
Section
8.1
|
Termination
|
99
|
Section
8.2
|
Effect
of Termination
|
101
|
Section
8.3
|
Fees
and Expenses
|
102
|
ARTICLE IX
MISCELLANEOUS
|
103
|
Section
9.1
|
Non-Survival
of Representations and Warranties
|
103
|
Section
9.2
|
Notices
|
103
|
Section
9.3
|
Interpretation;
Other Remedies
|
104
|
Section
9.4
|
Counterparts
|
104
|
Section
9.5
|
Entire
Agreement; Third-Party Beneficiaries
|
104
|
Table
of Contents
(continued)
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Page
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Section
9.6
|
Assignment
|
104
|
Section
9.7
|
Amendment
|
105
|
Section
9.8
|
Waiver
|
105
|
Section
9.9
|
Severability
|
105
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Section
9.10
|
Specific
Performance
|
105
|
Section
9.11
|
Governing
Law
|
105
|
Section
9.12
|
Jurisdiction
|
106
|
Section
9.13
|
Waiver
of Jury Trial
|
106
|
Section
9.14
|
Disclosure
|
106
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EXHIBITS & SCHEDULES
Exhibits
:
Exhibit
A
|
Forms
of Support Agreements
|
Exhibit
B
|
CPT
Certificate of Merger
|
Exhibit
C
|
Inuvo
Certificate of Merger
|
Exhibit
D
|
Form of
Separation Agreement
|
Schedules
:
Schedule
2.6(a)
|
Directors
of Parent and Parent’s Subsidiaries
|
Schedule
2.6(b)
|
Officers
of Parent and Parent’s Subsidiaries
|
Schedule
2.7(a)
|
Certificate
of Incorporation of Parent
|
Schedule
2.7(b)
|
Bylaws
of Parent
|
AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “
Agreement
”) is dated as of
November 2, 2018 (the “
Execution Date
”), by and among
CONVERSIONPOINT TECHNOLOGIES, INC., a Delaware corporation
(“
CPT
”),
CONVERSIONPOINT HOLDINGS, INC., a Delaware corporation and a direct
wholly-owned Subsidiary of CPT (“
Parent
”), CPT MERGER SUB, INC., a
Delaware corporation and a direct wholly-owned Subsidiary of Parent
(“
CPT
Merger Sub
”), INUVO, INC., a
Nevada corporation (“
Inuvo
”), and CPT CIGAR MERGER SUB,
INC., a Nevada corporation and a direct wholly-owned subsidiary of
Parent (“
Inuvo Merger
Sub
”). Each of Parent, CPT, CPT Merger Sub, Inuvo and
Inuvo Merger Sub is a “
Party
” and together, the
“
Parties
.”
RECITALS:
WHEREAS
, the respective Boards of
Directors of CPT and Inuvo have each determined unanimously that it
is in the best interests of their respective corporations and
stockholders that the business and operations of CPT and Inuvo be
combined upon the terms and subject to the conditions set forth
herein;
WHEREAS
, the Parties have determined
that the most practical manner to give effect to such combination
is through (i) the merger of CPT Merger Sub, with and into CPT,
with CPT surviving the merger and becoming a wholly-owned
Subsidiary of Parent (the “
CPT Merger
”), and (ii) the merger
of Inuvo Merger Sub, with and into Inuvo, with Inuvo surviving the
merger and becoming a wholly-owned Subsidiary of Parent (the
“
Inuvo Merger
,”
and together with the CPT Merger, the “
Mergers
”), each on the terms and
subject to the conditions of this Agreement;
WHEREAS
, in anticipation of the Mergers,
CPT has formed wholly-owned subsidiaries, Parent, CPT Merger Sub
and Inuvo Merger Sub;
WHEREAS
, the directors and certain
stockholders of CPT and Inuvo have each entered into support
agreements, in the forms attached hereto as
Exhibit A
(collectively, the
“
Support
Agreements
”), pursuant to which each such stockholder
has agreed, among other things, to vote all voting securities of
CPT or Inuvo, as the case may be, beneficially owned by such
stockholder in favor of the approval and adoption of the CPT Merger
or the Inuvo Merger, as the case may be;
WHEREAS
, CPT and Inuvo desire to make
certain representations, warranties, covenants and agreements in
connection with the CPT Merger and the Inuvo Merger and also
prescribe various conditions to the CPT Merger and the Inuvo
Merger; and
WHEREAS
, for Federal income tax
purposes, it is intended that the Mergers and the Financing (as
defined below) (together, the “
Exchanges
”), taken together, shall
qualify as an “exchange” governed by the provisions of
Section 351 of the Internal Revenue Code of 1986, as amended (the
“
Code
”).
NOW, THEREFORE
, in consideration of the
foregoing and the respective representations, warranties, covenants
and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE
I
DEFINITIONS;
CONSTRUCTION
Section 1.1
Definitions
. The following
capitalized terms as used in this Agreement shall have the meanings
ascribed to them in this
Article I
:
“
Acquisition Agreement
” has the
meaning set forth in
Section 6.12(b)(i)
of this
Agreement.
“
Affiliate
” of any Person shall
mean another Person that directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common
control with, such first Person.
“
Agreement
” has the meaning set
forth in the Preamble of this Agreement.
“
Antitrust Laws
” has the meaning
set forth in
Section
6.8(b)
of this Agreement.
“
Business Day
” means any day, other
than (i) a Saturday or a Sunday or (ii) a day on which banking and
savings and loan institutions are authorized or required by Law to
be closed in the State of California.
“
Change in Recommendation
” has the
meaning set forth in
Section 6.12(b)(i)
of this
Agreement.
“
Closings
” has the meaning set
forth in
Section
2.3
of this Agreement.
“
Closing Date
” has the meaning set
forth in
Section
2.3
of this Agreement.
“
Code
” has the meaning set forth in
the Recitals of this Agreement.
“
Confidentiality Agreement
” has the
meaning set forth in
Section 6.3(a)
of this
Agreement.
“
Contingent Obligation
” means, as
to any Person, any direct or indirect Liability, contingent or
otherwise, of that Person with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary
purpose or intent of the Person incurring such Liability, or the
primary effect thereof, is to provide assurance to the obligee of
such Liability that such Liability will be paid or discharged, or
that any agreements relating thereto will be complied with, or that
the holders of such Liability will be protected (in whole or in
part) against loss with respect thereto.
“
Continuing Employees
” has the
meaning set forth in
Section 6.10(a)
of this
Agreement.
“
Contract
” means any agreements,
contracts, leases, powers of attorney, notes, loans, evidence of
indebtedness, purchase orders, letters of credit, settlement
agreements, franchise agreements, undertakings, covenants not to
compete, employment agreements, licenses, covenants not to sue,
instruments, obligations, commitments, understandings, policies,
purchase and sales orders, quotations and other executory
commitments to which any Person is a party or to which any of the
assets of such Person are subject, whether oral or written, express
or implied (each, including all amendments thereto).
“
Control
” (including the terms
“controlled,” “controlled by” and
“under common control with”) means the possession,
direct or indirect, or the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by Contract or otherwise, and shall
be construed as such term is used in the rules promulgated under
the Securities Act.
“
CPT
” has the meaning set forth in
the Preamble of this Agreement.
“
CPT Affiliated Persons
” has the
meaning set forth in
Section 4.20(a)
of this
Agreement.
“
CPT Audited Financial Statements
”
has the meaning set forth in
Section 4.5(a)
of this
Agreement.
“
CPT Balance Sheet Date
” has the
meaning set forth in
Section 4.6
of this
Agreement.
“
CPT Benefit Arrangement
” means
each individual employment, severance or termination agreement
between CPT or any of CPT’s Subsidiaries and any current or
former employee, officer or director of CPT or any of CPT’s
Subsidiaries, other than (i) any agreement mandated by
applicable Law or (ii) any CPT Benefit Plan.
“
CPT Benefit Plans
” means each
employee benefit plan, program or policy providing benefits to any
current or former employee, officer or director of CPT or any of
its Subsidiaries or any beneficiary or dependent thereof that is
sponsored or maintained by CPT or any of its Subsidiaries or to
which CPT or any of its Subsidiaries contributes or is obligated to
contribute, or with respect to which CPT or any of its Subsidiaries
has or may have any Liability, including but not limited to each
“employee pension benefit plan” (as defined in
Section 3(2) of ERISA), each “employee welfare benefit
plan” (as defined in Section 3(1) of ERISA), and any
other bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, change in
control, disability, death benefit, hospitalization, medical,
fringe benefit or other plan, or program.
“
CPT Board
” means the Board of
Directors of CPT.
“
CPT Book-Entry Shares
” has the
meaning set forth in
Section 3.1(a)
of this
Agreement.
“
CPT Bylaws
” has the meaning set
forth in
Section
4.1(b)
of this Agreement.
“
CPT Certificate
” has the meaning
set forth in
Section
3.1(a)
of this Agreement.
“
CPT Certificate of Incorporation
”
has the meaning set forth in
Section 4.1(b)
of this
Agreement.
“
CPT Certificate of Merger
” has the
meaning set forth in
Section 2.3
of this
Agreement.
“
CPT Common Stock
” means the common
stock of CPT, par value $0.0001 per share.
“
CPT Convertible Notes
” has the
meaning set forth in
Section 4.2(a)
of this
Agreement.
“
CPT Data Room
” means the
electronic data room hosted by Dropbox with such contents contained
therein as of immediately prior to the execution of this
Agreement.
“
CPT Disclosure Schedule
” has the
meaning set forth in the preamble to
Article IV
of this
Agreement.
“
CPT Exchange Ratio
” means 0.9840;
provided, however
, that in
the event of any Post Execution Date CPT Stock Issuances, the CPT
Exchange Ratio shall be adjusted by taking the number of shares of
Parent Common Stock to be allocated to CPT stockholders, holders of
CPT RSUs and holders of CPT Convertible Notes that convert into
shares of CPT Common Stock (ignoring the impact of any Dissenting
Shares), which is 15,567,200 shares of Parent Common Stock, and
dividing that amount by the sum of (i)(A) the number of shares
of CPT Common Stock outstanding as of the Execution Date, plus
(B) the number of shares of CPT Common Stock to be issued upon
the vesting of CPT RSUs, plus (C) the number of shares of CPT
Common Stock issuable upon the conversion of CPT Convertible Notes
(which (A), (B), and (C) totals 15,819,911 as of November 1, 2018),
and (ii) the amount of Post Execution Date CPT Stock Issuance.
By way of example; if the Post Execution Date CPT Stock Issuances
equal 500,000 shares of CPT Common Stock, the CPT Exchange Ratio
would be adjusted to equal 0.9539 calculated as follows: 15,567,200
/ (15,819,911 + 500,000) = 0.9539.
“
CPT Financial Statements
” has the
meaning set forth in
Section 4.5(b)
of this
Agreement.
“
CPT Leases
” has the meaning set
forth in
Section
4.16(b)
of this Agreement.
“
CPT Material Adverse Effect
” means
any fact, event, circumstance or effect, other than any Excluded
CPT Matters, that, individually or together with all other such
facts, events, circumstances and effects, (i) is, or would
reasonably be expected to be, material and adverse to the business,
condition (financial or otherwise), capitalization, assets,
liabilities, or results of operations of CPT and its Subsidiaries,
taken as a whole or (ii) prevents, or would reasonably be
expected to prevent, the ability of CPT and its Subsidiaries to
perform their obligations under this Agreement or to consummate the
transactions contemplated by this Agreement in accordance with the
terms hereof.
“
CPT Material Contracts
” has the
meaning set forth in
Section 4.10(a)
of this
Agreement.
“
CPT Material Leased Real Property
”
has the meaning set forth in
Section 4.16(b)
of this
Agreement.
“
CPT Material Licenses
” has the
meaning set forth in
Section 4.15(b)
of this
Agreement.
“
CPT Merger
” has the meanings set
forth in the Recitals of this Agreement.
“
CPT Merger Consideration
” has the
meaning set forth in
Section 3.1(a)
of this
Agreement.
“
CPT Merger Sub
” has the meaning
set forth in the Preamble of this Agreement.
“
CPT Owned Intellectual Property
”
means all material Intellectual Property owned by CPT.
“
CPT Permits
” has the meaning set
forth in
Section
4.9(a)
of this Agreement.
“
CPT Preferred Stock
” has the
meaning set forth in
Section 4.2(a)
of this
Agreement.
“
CPT Product
” means any product,
line of products or service which CPT or any of its Subsidiaries
has marketed and/or sold in the preceding three (3) calendar
years.
“
CPT Qualified Plans
” has the
meaning set forth in
Section 4.12(d)
of this
Agreement.
“
CPT Registered Brand Name
” means
all registrations for trademarks, trade names, brand names, and
service marks owned by CPT or any of its Subsidiaries that are
material to the business and operations of the
business.
“
CPT Representatives
” means with
respect to CPT, each of its Subsidiaries, and each of CPT’s
and such Subsidiaries’ respective officers, directors,
managers, employees, agents, counsel, accountants, investment
bankers, financial advisors and authorized
representatives.
“
CPT Required Statutory Approvals
”
has the meaning set forth in
Section 4.4(f)
of this
Agreement.
“
CPT RSU
” has the meaning set forth
in
Section 3.1(g)
of this Agreement.
“
CPT Stock Options
” means options
to acquire CPT Common Stock granted under or pursuant to any CPT
Stock Plan or otherwise.
“
CPT Stock Plans
” means any plan or
arrangement under which CPT grants equity-based
awards.
“
CPT Stockholders’ Meeting
”
means a meeting of the holders of CPT Common Stock to vote on the
approval and adoption of this Agreement and the
Merger.
“
CPT Subsidiary Bylaws
” has the
meaning set forth in
Section 4.3(c)
of this
Agreement.
“
CPT Subsidiary Charters
” has the
meaning set forth in
Section 4.3(c)
of this
Agreement.
“
CPT Tax Opinion
” has the meaning
set forth in
Section
7.2(e)
of this Agreement.
“
CPT Termination Fee
” has the
meaning set forth in
Section 8.3(b)
of this
Agreement.
“
CPT Unaudited Financial
Statements
” has the meaning set forth in
Section 4.5(b)
of this
Agreement.
“
CPT Unregistered Brand Name
” means
all (i) trademarks, trade names, brand names, and service
marks for which CPT or any of its Subsidiaries that are the
subjects of such trademarks, trade names, brand names, and service
marks has filed an application with the U.S. Patent and Trademark
Office or any foreign equivalent office and (ii) material
trademarks, trade names, brand names, and service marks owned and
used by CPT or any of its Subsidiaries but not registered or are
the subject of any pending applications in any country anywhere in
the world.
“
CPT Voting Proposal
” has the
meaning set forth in
Section 6.6(a)
of this
Agreement.
“
CPT Warrant
” has the meaning set
forth in
Section
3.1(f)
of this Agreement.
“
D&O Insurance
” has the meaning
set forth in
Section
6.11(d)
of this Agreement.
“
DGCL
” means the Delaware General
Corporation Law.
“
Dissenting Shares
” has the meaning
set forth in
Section
3.1(d)
of this Agreement.
“
EDGAR
” means the Electronic Data
Gathering, Analysis and Retrieval System.
“
Effective Time
” means the later of
(i) the date and time the CPT Certificate of Merger is duly filed
with the Secretary of State of the State of Delaware (or at such
subsequent time as Parent, Inuvo and CPT shall agree and as shall
be specified in the CPT Certificate of Merger), and (ii) the date
and time the Inuvo Certificate of Merger is duly filed with the
Secretary of State of the State of Nevada (or at such subsequent
time as Parent, CPT and Inuvo shall agree and as shall be specified
in the Inuvo Certificate of Merger).
“
Environmental Law(s)
” means any
and all applicable international, federal, state, or local Laws or
rule of common Law which regulate or relate to (i) the
condition, protection or cleanup of the environment, or the
preservation or protection of waterways, groundwater, surface
water, drinking water, land, soil, air, wildlife, plants or other
natural resources; (ii) the generation, manufacturing,
labeling, use, treatment, storage, transportation, handling,
disposal, presence or release of Hazardous Substances;
(iii) the protection of public health or property; or
(iv) impose Liability or responsibility with respect to any of
the foregoing, including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C.
§ 9601
et seq.
),
the Toxic Substances Control Act, as amended, the Hazardous
Materials Transportation Act, as amended, the Resource Conservation
and Recovery Act, as amended, the Clean Water Act, as amended,
California’s Proposition 65, the Clean Air Act, as amended,
the Atomic Energy Act of 1954, as amended, and all analogous Laws
promulgated or issued by any Governmental Entity.
“
ERISA
” means the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations promulgated thereunder.
“
ERISA Affiliate
” means, with
respect to any entity, trade or business, any other entity, trade
or business that is, or was at the relevant time, a member of a
group described in Section 52 or 414(b), (c), (m) or (o) of
the Code or Section 4001(b)(1) of ERISA that includes or
included the first entity, trade or business, or that is, or was at
the relevant time, a member of the same “controlled
group” as the first entity, trade or business pursuant to
Section 4001(a)(14) of ERISA.
“
Exchange Act
” means the Securities
Exchange Act of 1934, as amended, together with the rules and
regulations promulgated thereunder.
“
Exchange Agent
” has the meaning
set forth in
Section
3.3(a)
of this Agreement.
“
Exchange Agent Agreement
” has the
meaning set forth in
Section 3.3(a)
of this
Agreement.
“
Exchange Fund
” has the meaning set
forth in
Section
3.3(a)
of this Agreement.
“
Exchanges
” has the meaning set
forth in the Recitals to this Agreement.
“
Excluded CPT Matters
” means any
one or more of the following: (i) changes after the date
hereof in Laws, rules or regulations of general applicability or
interpretations thereof by a Governmental Entity; (ii) general
changes after the date hereof in economic conditions, markets
(including capital, financial, credit or securities) or political
environment in general or general changes in the industry in which
CPT operates generally; (iii) a change or proposed change in
GAAP or the interpretation thereof; (iv) the outbreak or
escalation of hostilities involving the United States, the
declaration by the United States of a national emergency or war,
any other acts of war (whether declared or undeclared), sabotage,
military action or any escalation or worsening thereof,
earthquakes, hurricanes or similar catastrophes, or the occurrence
of any other calamity or crisis, including an act of terrorism;
(v) the announcement, pendency or consummation of the
transactions contemplated by this Agreement, or the failure to take
actions as a result of any terms or conditions set forth in this
Agreement, including any loss of or change in the relationship with
employees, customers, partners, suppliers or other persons having
business relationships with such Person; (vi) any action taken
pursuant to this Agreement or at the express request of the other
Party; or (vii) failure to meet internal projections or
forecasts (provided, that the underlying causes of any such change
shall not be excluded pursuant to this clause (vii));
provided, however
, that any matter in
subsections (i) or (ii) that disproportionately adversely affects
CPT compared with other companies in the ecommerce industry in
which CPT operates shall not be an Excluded CPT
Matter.
“
Excluded Inuvo Matters
” means any
one or more of the following: (i) changes after the date
hereof in Laws, rules or regulations of general applicability or
interpretations thereof by a Governmental Entity; (ii) general
changes after the date hereof in economic conditions, securities
markets in general in the United States or general changes in the
industry in which Parent operates generally; (iii) a change or
proposed change in GAAP or the interpretation thereof;
(iv) the outbreak or escalation of hostilities involving the
United States, the declaration by the United States of a national
emergency or war, any other acts of war (whether declared or
undeclared), sabotage, military action or any escalation or
worsening thereof, earthquakes, hurricanes or similar catastrophes,
or the occurrence of any other calamity or crisis, including an act
of terrorism; (v) the announcement, pendency or consummation
of the transactions contemplated by this Agreement, or the failure
to take actions as a result of any terms or conditions set forth in
this Agreement, including any loss of or change in the relationship
with employees, customers, partners, suppliers or other persons
having business relationships with such Person; (vi) any
action taken pursuant to this Agreement or at the express request
of the other party; (vii) failure to meet internal projections
or forecasts (provided, that the underlying causes of any such
change shall not be excluded pursuant to this clause (vii)),
(viii) any change in Inuvo’s credit rating or any change
affecting the rating outlook of Inuvo, or (ix) a change in the
market price or trading volume of Inuvo Common Stock, in and of
itself;
provided
,
however
, that any matter in
subsections (i) or (ii) that disproportionately adversely affects
Inuvo compared with other companies operating in the digital
advertising industry in which Inuvo operates shall not be an
Excluded Inuvo Matter.
“
Execution Date
” has the meaning
set forth in the Preamble of this Agreement.
“
Financing
” means the receipt by
Parent of at least $36 million in gross proceeds from the issuance
and sale of its equity, debt and/or equity-linked securities on
terms mutually reasonably agreeable to Inuvo and CPT in good
faith.
“
Financing Comfort Letter
” has the
meaning set forth in
Section 4.27(a)
of this
Agreement.
“
Fractional Share Cash Amount
” has
the meaning set forth in
Section 3.1(b)
of this
Agreement.
“
GAAP
” means United States
generally accepted accounting principles.
“
Governmental Entity
” means any
foreign, federal, state, local or multi-national court, arbitral
tribunal, administrative agency or commission or other governmental
or regulatory body, agency, instrumentality or
authority.
“
Hazardous Substances
” means any
pollutant, chemical, chemical compound, waste, material or
substance that is defined, classified or regulated, or controlled
by any Environmental Law, whether solid, liquid or gas, and
including without limitation, any quantity of asbestos in any form,
urea formaldehyde, PCBs, radon gas, crude oil or any fraction
thereof, all forms of natural gas, petroleum products or
by-products, mixtures or derivatives.
“
HSR Act
” means the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
“
Indebtedness
” of any Person means,
without duplication (i) all indebtedness for borrowed money;
(ii) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (including, without
limitation, “capital leases” in accordance with
generally accepted accounting principles) (other than trade
payables entered into in the ordinary course of business);
(iii) all reimbursement or payment obligations with respect to
letters of credit, surety bonds and other similar instruments;
(iv) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses;
(v) all indebtedness created or arising under any conditional
sale or other title retention agreement, or incurred as financing,
in either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and
remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property);
(vi) all monetary obligations under any leasing or similar
arrangement which, in connection with GAAP, consistently applied
for the periods covered thereby, is classified as a capital lease;
(vii) all indebtedness referred to in clauses (i) through (vi)
above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any
mortgage, claim, lien, tax, right of first refusal, encumbrance,
pledge, charge, security interest or other encumbrance upon or in
any property or assets (including accounts and contract rights)
owned by any Person, even though the Person which owns such assets
or property has not assumed or become liable for the payment of
such indebtedness, and (viii) all Contingent Obligations in
respect of indebtedness or obligations of others of the kinds
referred to in clauses (i) through (vii) above.
“
Indemnified Directors and
Officers
” has the meaning set forth in
Section 6.11(b)
of this
Agreement.
“
Indemnified Parties
” has the
meaning set forth in
Section 6.11(c)
of this
Agreement.
“
Intellectual Property
” means all
intellectual property or other proprietary rights of every kind,
foreign and domestic, including: (i) patents, patent
applications (including any provisionals, continuations, divisions,
continuations-in-part, extensions, renewals, reissues, revivals and
reexaminations, any national phase PCT applications, PCT
international applications, and all foreign counterparts),
statutory invention certificates, copyrights, mask works,
industrial designs, URLs, domain names, trademarks, service marks,
logos, brand names, trade dress and trade names; (ii) all
rights in, applications for, registrations of any of the foregoing;
(iii) moral rights, rights to use a natural person’s
name and likeness, publicity rights; (iv) all rights in and to
trade secrets, confidential information, inventions, discoveries,
improvements, modifications, know-how, techniques, methods, data,
embodied or disclosed in any computer programs; product
specifications; and manufacturing; and (v) all goodwill
related to any of the foregoing.
“
Inuvo Articles of Incorporation
”
has the meaning set forth in
Section 5.1(b)
of this
Agreement.
“
Inuvo Balance Sheet Date
” means
December 31, 2017.
“
Inuvo Benefit Plans
” means each
employee benefit plan, program or policy providing benefits to any
current or former employee, officer or director of Inuvo or any of
its Subsidiaries or any beneficiary or dependent thereof that is
sponsored or maintained by Inuvo or any of its Subsidiaries or to
which Inuvo or any of its Subsidiaries contributes or is obligated
to contribute, or with respect to which Inuvo or any of its
Subsidiaries has or may have any Liability, including but not
limited to each “employee pension benefit plan” (as
defined in Section 3(2) of ERISA), each “employee
welfare benefit plan” (as defined in Section 3(1) of
ERISA), and any other bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock
purchase, stock option, phantom stock, retirement, vacation,
severance, change in control, disability, death benefit,
hospitalization, medical, fringe benefit or other plan, or
program.
“
Inuvo Board
” means the Board of
Directors of Inuvo.
“
Inuvo Book-Entry Shares
” has the
meaning set forth in
Section 3.2(a)
of this
Agreement.
“
Inuvo Bridge Notes
” means certain
10% senior subordinated unsecured convertible promissory notes
issued by Inuvo in the original principal amount of up to
$2,000,000, or such lesser amount thereof as may have been advanced
thereunder, which shall be $1,000,000 at issuance, to CPT
Investments, LLC, a California limited liability company (the
“
Inuvo Bridge Note
Holder
”), pursuant to which, Inuvo has agreed that (A)
the Inuvo Bridge Note Holder may voluntarily convert such Inuvo
Bridge Notes into shares of Inuvo Common Stock, and (B) all Inuvo
Common Stock resulting from such conversion described in subsection
(A) shall be afforded certain registration rights.
“
Inuvo Bylaws
” has the meaning set
forth in
Section
5.1(b)
of this Agreement.
“
Inuvo Cash Merger Consideration
”
has the meaning set forth in
Section 3.2(a)
of this
Agreement.
“
Inuvo Certificate
” has the meaning
set forth in
Section
3.2(a)
of this Agreement.
“
Inuvo Certificate of Merger
” has
the meaning set forth in
Section 2.3
of this
Agreement.
“
Inuvo Common Stock
” means the
common stock, $0.001 par value per share, of Inuvo.
“
Inuvo Data Room
” means the
electronic data room hosted by Vault Rooms with such contents
contained therein as of immediately prior to the execution of this
Agreement.
“
Inuvo Exchange Ratio
” means
0.18877.
“
Inuvo Financial Advisor
” has the
meaning set forth in
Section 5.16
of this
Agreement.
“
Inuvo Financial Statements
” has
the meaning set forth in
Section 5.5(a)
of this
Agreement.
“
Inuvo Leases
” has the meaning set
forth in
Section
5.25(b)
of this Agreement.
“
Inuvo Material Adverse Effect
”
means any fact, event, circumstance or effect, other than any
Excluded Inuvo Matters, that, individually or together with all
other such facts, events, circumstances and effects, (i) is,
or would reasonably be expected to be, material and adverse to the
business, condition (financial or otherwise), capitalization,
assets, Liabilities, or results of operations of Inuvo; or
(ii) prevents, or would reasonably be expected to prevent, the
ability of Inuvo to perform its obligations under this Agreement or
to consummate the transactions contemplated by this Agreement in
accordance with the terms hereof.
“
Inuvo Material Contract
” has the
meaning set forth in
Section 5.12
of this
Agreement.
“
Inuvo Material Leased Real
Property
” has the meaning set forth in
Section 5.25(b)
of this
Agreement.
“
Inuvo Material Licenses
” has the
meaning set forth in
Section 5.18(b)
of this
Agreement.
“
Inuvo Merger
” has the meaning set
forth in the Recitals to this Agreement.
“
Inuvo Merger Consideration
” means,
collectively, the Inuvo Stock Merger Consideration and the Inuvo
Cash Merger Consideration.
“
Inuvo Merger Sub
” has the meaning
set forth in the Preamble of this Agreement.
“
Inuvo Option Exchange Ratio
” means
0.2370.
“
Inuvo Owned Intellectual Property
”
means all material Intellectual Property owned by
Inuvo.
“
Inuvo Permits
” has the meaning set
forth in
Section
5.9(a)
of this Agreement.
“
Inuvo Preferred Stock
” means the
preferred stock, $0.001 par value per share, of Inuvo.
“
Inuvo Product
” means any product,
line of products or service which Inuvo or any of its Subsidiaries
has marketed and/or sold in the preceding three (3) calendar
years.
“
Inuvo Registered Brand Name
” means
all registrations for trademarks, trade names, brand names, and
service marks owned by Inuvo or any of its Subsidiaries that are
material to the business and operations of the
business.
“
Inuvo Representatives
” means
Affiliates of Inuvo and each of its Subsidiaries, and each of their
respective officers, directors, employees, agents, counsel,
accountants, investment bankers, financial advisors and
representatives.
“
Inuvo Required Statutory
Approvals
” has the meaning set forth in
Section 5.4(c)
of this
Agreement.
“
Inuvo RSU
” has the meaning set
forth in
Section
3.2(e)
of this Agreement.
“
Inuvo SEC Documents
” has the
meaning set forth in
Section 5.5(a)
of this
Agreement.
“
Inuvo Separation Agreements
” has
the meaning set forth in
Section 6.10(c)
of this
Agreement.
“
Inuvo Stockholders’ Meeting
”
means a meeting of the holders of Inuvo Common Stock to vote on the
Inuvo Voting Proposals.
“
Inuvo Stock Merger Consideration
”
has the meaning set forth in
Section 3.2(a)
of this
Agreement.
“
Inuvo Stock Option
” means any
option to purchase Inuvo Stock granted under any Inuvo Stock Plan
or otherwise.
“
Inuvo Stock Plans
” means any plan
or arrangement under which Inuvo grants equity-based awards,
including, without limitation, the Inuvo 2010 Equity Compensation
Plan and the Inuvo 2017 Equity Compensation Plan.
“
Inuvo Subsidiary Bylaws
” has the
meaning set forth in
Section 5.3(c)
of this
Agreement.
“
Inuvo Subsidiary Charters
” has the
meaning set forth in
Section 5.3(c)
of this
Agreement.
“
Inuvo Takeover Proposal
” means any
inquiry, proposal or offer from any Person relating to, or that is
reasonably likely to lead to, directly or indirectly: (i) a
merger, consolidation, tender offer, exchange offer, share
exchange, business combination or other similar transaction
involving Inuvo or any of Inuvo’s operating Subsidiaries that
constitutes ten percent (10%) or more of the net revenues, net
income or assets of Inuvo; (ii) the acquisition by any Person
in any manner of a number of shares of any class of equity
securities of Inuvo or any of Inuvo’s Subsidiaries equal to
or greater than twenty-five percent (25%) of the number of such
shares outstanding before such acquisition; or (iii) the
acquisition by any Person in any manner (including by license or
lease), directly or indirectly, of assets that constitute
twenty-five percent (25%) or more of the net revenues, net income
or assets of Inuvo (in each case, on a consolidated basis) in the
case of each of the foregoing clauses (i)-(iii) other than the
transactions contemplated by this Agreement.
“
Inuvo Tax Opinion
” has the meaning
set forth in
Section
7.3(d)
of this Agreement.
“
Inuvo Termination Fee
” has the
meaning set forth in
Section 8.3(b)
of this
Agreement.
“
Inuvo Unregistered Brand Name
”
means all (i) trademarks, trade names, brand names, and
service marks for which CPT or any of its Subsidiaries that are the
subjects of such trademarks, trade names, brand names, and service
marks has filed an application with the U.S. Patent and Trademark
Office or any foreign equivalent office and (ii) material
trademarks, trade names, brand names, and service marks owned and
used by CPT or any of its Subsidiaries but not registered or are
the subject of any pending applications in any country anywhere in
the world.
“
Inuvo Voting Proposal
” has the
meaning set forth in
Section 6.6(b)
of this
Agreement.
“
IRS
” means Internal Revenue
Service.
“
Joint Proxy Statement/Prospectus
”
means the joint proxy statement/prospectus to be sent to the
holders of CPT Common Stock in connection with CPT
Stockholders’ Meeting and to the holders of Inuvo Common
Stock in connection with the Inuvo Stockholders’
Meeting.
“
Knowledge
” means, (i) with respect
to CPT, Parent, CPT Merger Sub, and Inuvo Merger Sub, the actual
knowledge or awareness of any of Robert Tallack, Raghunath Kilambi
and Jeffrey S. Marks, John Gregg, Jack Thomsen and Haig Newton, and
(ii) with respect to Inuvo, the actual knowledge or awareness of
any of Richard K. Howe, Wallace D. Ruiz, John B. Pisaris, or Don
Walker “Trey” Barrett III.
“
Law
” means, as to any Person, any
statute, rule, regulation, ordinance, code, guideline, law,
judicial decision, determination, order (including any injunction,
judgment, writ, award or decree), or consent of the court, other
Governmental Entity or arbitrator, in each case applicable to or
binding upon such Person, including the conduct of its business, or
any of its assets or revenues to which such Person or any of its
assets or revenues are subject.
“
Liability
”
or
“
Liabilities
” mean any direct or
indirect liability, Indebtedness, obligation, commitment, expense,
claim, deficiency, guaranty or endorsement of or by any Person of
any type, whether accrued, absolute, contingent, matured,
unmatured, liquidated, unliquidated, known or unknown.
“
Liens
” means any mortgage, deed of
trust, deed to secure debt, title retention agreement, pledge,
lien, encumbrance, security interest, right of first refusal,
option, conditional or installment sale agreement, charge or other
claims of third parties of any kind.
“
Mergers
” has the meaning set forth
in the Recitals to this Agreement.
“
Multiemployer Plan
” means any
“multiemployer plan” within the meaning of
Section 3(37) or 4001(a)(3) of ERISA.
“
NASDAQ
” means The NASDAQ,
Inc.
“
Non-Employee Options
” has the
meaning set forth in
Section 6.16
of this
Agreement.
“
NRS
” means the Nevada Revised
Statutes.
“
NYSE American
” means the NYSE
American Stock Exchange.
“
Parent Bylaws
” has the meaning set
forth in
Section
2.7
of this Agreement.
“
Parent Certificate of
Incorporation
” has the meaning set forth in
Section 2.7
of this
Agreement.
“
Parent Common Stock
” means the
common stock, $0.0001 par value per share, of Parent.
“
Parent Options
” has the meaning
set forth in
Section
6.10(c)
of this Agreement.
“
Parties
” has the meaning set forth
in the Preamble of this Agreement.
“
PBGC
” means the Pension Benefit
Guaranty Corporation.
“
Person
” means any individual,
firm, corporation, partnership, company, limited liability company,
trust, joint venture, association, Governmental Entity or other
entity.
“
Post Execution Date CPT Stock
Issuances
” has the meaning set forth in
Section 6.1(b)
of this
Agreement.
“
Proceeding(s)
” means any claims,
controversies, demands, actions, lawsuits, investigations,
proceedings or other disputes, formal or informal, including any
by, involving or before any arbitrator or any Governmental
Entity.
“
Proposal Period
” has the meaning
set forth in
Section
6.12(b)(ii)
of this Agreement.
“
Registration Statement
” means the
registration statement on Form S-4 to be filed with the SEC by
Parent in connection with issuance of Parent Common Stock in the
Merger, as said registration statement may be amended prior to the
time it is declared effective by the SEC.
“
Required CPT Stockholder Vote
” has
the meaning set forth in
Section 4.4(a)
of this
Agreement.
“
Required Inuvo Stockholder Vote
”
has the meaning set forth in
Section 5.4(a)
of this
Agreement.
“
Sarbanes-Oxley Act
” means the
Sarbanes-Oxley Act of 2002, as amended.
“
SEC
” means the United States
Securities and Exchange Commission.
“
Securities Act
” means the
Securities Act of 1933, as amended, together with the rules and
regulations promulgated thereunder.
“
Subsidiary
” means, with respect to
any party, any corporation or other organization, whether
incorporated or unincorporated, of which (i) such party or any
other Subsidiary of such party is a general partner (excluding
partnerships, the general partnership interests of which held by
such party or any Subsidiary of such party do not have a majority
of the voting interest in such partnership) or (ii) at least a
majority of the securities or other interests having by their terms
ordinary voting power to elect a majority of the board of directors
or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned
or controlled by such party or by any one or more of its
Subsidiaries, or by such party and one or more of its
Subsidiaries.
“
Superior Inuvo Proposal
” means any
written offer made by a third party not in violation of
Section 6.12
that
if consummated would result in such third party acquiring, directly
or indirectly, a majority of Inuvo Common Stock or a majority of
the assets of Inuvo and Inuvo’s Subsidiaries, (i) for
consideration that the Inuvo Board determines in its good faith
judgment (following consultation with an independent financial
advisor) to be superior from a financial point of view to the
holders of Inuvo Common Stock than the transactions contemplated by
this Agreement (based on the advice of the Inuvo Financial
Advisor), taking into account all the terms and conditions of such
proposal, this Agreement and any proposal by Parent to amend the
terms of this Agreement as permitted hereunder; and (ii) that,
in the good faith judgment of the Inuvo Board, is reasonably likely
to be consummated, taking into account all legal, financial,
regulatory and other aspects of the proposal and the Person making
the proposal.
“
Superior Proposal Notice
” has the
meaning set forth in
Section 6.12(b)(ii)
of this
Agreement.
“
Support Agreements
” means has the
meaning set forth in the Recitals of this Agreement.
“
Takeover Law
” has the meaning set
forth in
Section
6.15
of this Agreement.
“
Tax
” or “
Taxes
” means all taxes of whatever
kind or nature, including, without limitation, those on or measured
by or referred to as income, gross receipts, sales, use, ad
valorem, franchise, profits, license, estimated, withholding,
payroll, employment, excise, severance, stamp, occupation, premium,
value added, property or windfall profits taxes, customs, duties or
other similar fees, assessments or charges of any kind whatsoever
(together with any interest and any penalties, additions to tax or
additional amounts), whether disputed or not, imposed by any
Governmental Entity (domestic or foreign).
“
Tax Returns
” means any report,
return (including information return or declaration of estimated
Taxes), claim for refund, or statement relating to Taxes filed or
required to be filed with any Governmental Entity, including any
schedule or attachment thereto, and including any amendments
thereof.
“
Termination Date
” has the meaning
set forth in
Section
8.1(b)(i)
of this Agreement.
“
TSX
” means the Toronto Stock
Exchange.
Section
1.2
Construction
.
Unless the context of this Agreement clearly requires otherwise,
(a) references to the plural include the singular, and
references to the singular include the plural, (b) references
to any gender include the other gender, (c) the words
“include,” “includes” and
“including” do not limit the preceding terms or words
and will be deemed to be followed by the words “without
limitation”, (d) the terms “hereof,”
“herein,” “hereunder,” “hereto”
and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement,
(e) the terms “day” and “days” mean
and refer to calendar day(s) and (f) the terms
“year” and “years” mean and refer to
calendar year(s). Unless otherwise set forth herein, references in
this Agreement to (a) any document, instrument or agreement
(including this Agreement) include (1) all exhibits, schedules
and other attachments thereto, (2) all documents, instruments
or agreements issued or executed in replacement thereof and
(3) such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified or supplemented from time
to time in accordance with its terms and in effect at any given
time, and (b) a particular Law means such Law as amended,
modified, supplemented or succeeded, from time to time and in
effect through the Closing Date. All Article, Section, Exhibit and
Schedule references herein are to Articles, Sections, Exhibits and
Schedules of this Agreement, unless otherwise specified. This
Agreement will not be construed as if prepared by one of the
Parties, but rather according to its fair meaning as a whole, as if
all Parties had prepared it. All accounting terms not specifically
defined herein will be construed in accordance with
GAAP.
ARTICLE
II
THE
MERGERS
Section
2.1
The
CPT Merger
. Upon the terms
and subject to the satisfaction or waiver of the conditions set
forth in this Agreement, and in accordance with the DGCL, CPT
Merger Sub shall be merged with and into CPT at the Effective Time.
Following the Effective Time, the separate corporate existence of
CPT Merger Sub shall cease and CPT shall continue as the
corporation surviving the CPT Merger and as a result of the CPT
Merger shall become a wholly-owned subsidiary of Parent and shall
continue its corporate existence under the DGCL.
Section
2.2
The
Inuvo Merger
. Upon the terms
and subject to the satisfaction or waiver of the conditions set
forth in this Agreement, and in accordance with the NRS, Inuvo
Merger Sub shall be merged with and into Inuvo at the Effective
Time. Following the Effective Time, the separate corporate
existence of Inuvo Merger Sub shall cease and Inuvo shall continue
as the corporation surviving the Inuvo Merger and as a result of
the Inuvo Merger shall become a wholly-owned subsidiary of Parent
and shall continue its corporate existence under the
NRS.
Section
2.3
Closings;
Effective Time
. The closings of
the CPT Merger and the Inuvo Merger (collectively, the
“
Closings
”)
shall take place at 10:00 a.m. (Pacific time) at the offices of
Troutman Sanders LLP, 5 Park Plaza, Irvine, California 92614,
unless another place is agreed to in writing by the Parties on the
second (2
nd
) Business Day after
the satisfaction or waiver (subject to applicable Law) of the
conditions set forth in
Article VII
(excluding
conditions that, by their nature, cannot be satisfied until the
Closings, but subject to the continued satisfaction or, to the
extent provided by Law and this Agreement, waiver of those
conditions), unless this Agreement has been terminated pursuant to
its terms or unless another time or date is agreed to in writing by
the Parties (the actual date at 10:00 a.m. (Pacific time) of the
Closings being referred to herein as the “
Closing Date
”). On the Closing
Date and subject to the terms and conditions hereof, the Parties
shall cause the CPT Merger and the Inuvo Merger to be consummated
by filing (i) a CPT Certificate of Merger, in substantially the
form attached hereto as
Exhibit B
(the
“
CPT Certificate of
Merger
”), executed in accordance with the relevant
provisions of the DGCL, with the Secretary of State of the State of
Delaware, and (ii) an Inuvo Certificate of Merger, in substantially
the form attached hereto as
Exhibit C
(the
“
Inuvo Certificate of
Merger
”), executed in accordance with the relevant
provisions of the NRS, with the Secretary of State of the State of
Nevada. The CPT Merger and the Inuvo Merger shall become effective
at the Effective Time.
Section
2.4
Effect
of the CPT Merger
. At the Effective
Time, the effect of the CPT Merger shall be as provided in the
applicable provisions of the DGCL. Without limiting the generality
of the foregoing, at the Effective Time, except as otherwise
provided herein, all the property, rights, privileges, powers and
franchises of CPT and CPT Merger Sub shall vest in CPT, and all
debts, Liabilities and duties of CPT and CPT Merger Sub shall
become the debts, Liabilities and duties of CPT.
Section
2.5
Effect
of the Inuvo Merger
. At the Effective
Time, the effect of the Inuvo Merger shall be as provided in the
applicable provisions of the NRS. Without limiting the generality
of the foregoing, at the Effective Time, except as otherwise
provided herein, all the property, rights, privileges, powers and
franchises of Inuvo and Inuvo Merger Sub shall vest in Inuvo, and
all debts, Liabilities and duties of Inuvo and Inuvo Merger Sub
shall become the debts, Liabilities and duties of
Inuvo.
Section
2.6
Directors and Officers of Parent and Parent
Subsidiaries.
(a)
CPT shall cause the
individuals set forth on
Schedule 2.6(a)
attached
hereto to be the directors of Parent and each of its Subsidiaries
upon the Effective Time, including two directors of Parent that are
designated by Inuvo prior to the Effective Time, one of whom shall
be the non-executive chairman of the board of Parent and one of
whom shall be “independent” as defined by NASDAQ, and
such persons shall hold office from the Effective Time until their
respective successors are duly elected or appointed and qualified
in the manner provided in the certificate of incorporation or
bylaws of Parent or as otherwise provided by Law.
(b)
CPT shall cause the
individuals set forth on
Schedule 2.6(b)
attached
hereto to be the officers of Parent and each of its Subsidiaries
upon the Effective Time and shall hold office from the Effective
Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the certificate
of incorporation or bylaws of Parent or as otherwise provided by
Law.
Section
2.7
Organizational
and Governing Documents of Parent
. Subject to the
consummation of the Mergers, Parent and CPT, as the sole
stockholder of Parent, shall take all requisite actions to cause
the certificate of incorporation of Parent (the “
Parent Certificate of
Incorporation
”) and the bylaws of Parent (the
“
Parent
Bylaws
”), each in effect immediately prior to the
Effective Time to be in substantially in the forms attached to this
Agreement as
Schedule
2.7(a)
and
Schedule
2.7(b)
. The name of Parent immediately after the Effective
Time shall be “ConversionPoint Technologies,
Inc.”
Section
2.8
Effect
on Parent Capital Stock
. At the Effective
Time, each share of capital stock of Parent issued and outstanding
immediately prior to the Effective Time shall remain outstanding.
Immediately following the Effective Time, shares of capital stock
of Parent owned by CPT shall be surrendered to Parent without
payment therefor and canceled by Parent with no consideration
exchanged therefor.
ARTICLE III
EFFECT ON CAPITAL
STOCK; EXCHANGE PROCEDURES
Section 3.1 The CPT Merger
.
(a)
CPT Merger Consideration
.
Pursuant to the CPT Merger, each share of CPT Common Stock
outstanding immediately prior to the Effective Time (other than (i)
shares of CPT Common Stock held in CPT’s treasury, which
shall be cancelled pursuant to
Section 3.1(c)
, (ii) shares of
CPT Common Stock held by CPT Merger Sub, which shall be cancelled
pursuant to
Section
3.1(c)
and (iii) Dissenting Shares) shall by virtue of the
CPT Merger and without any action on the part of the CPT Merger
Sub, CPT or the holder thereof, be converted into and become that
number of shares of Parent Common Stock equal to the CPT Exchange
Ratio (subject to adjustment for any stock split, reverse split,
stock dividend or other similar distribution with respect to CPT
Common Stock) (the “
CPT
Merger Consideration
”). All such shares of CPT Common
Stock, when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and
each holder of uncertificated CPT Common Stock represented in
book-entry form (“
CPT
Book-Entry Shares
”) or a certificate representing any
such shares of CPT Common Stock (each, a “
CPT Certificate
”) shall cease to
have any ownership or other rights with respect thereto, except the
right to receive the shares of Parent Common Stock, in each case
upon (i) the receipt of an “agent’s message” by
the Exchange Agent (or such other evidence, if any, of transfer as
the Exchange Agent may reasonably request) in the case of CPT
Book-Entry Shares; in each case, together with a duly completed and
validly executed letter of transmittal and such other documents as
may reasonably be requested by the Exchange Agent, or (ii) the
surrender of such CPT Certificate in accordance with
Section 3.3
and without any
interest thereon. Pursuant to the CPT Merger, at the Effective
Time, each share of common stock of CPT Merger Sub issued and
outstanding immediately prior to the Effective Time shall, by
virtue of the CPT Merger and without any action on the part of the
holder thereof, be converted into and exchanged for one share of
CPT Common Stock. The separate existence and corporate organization
of CPT Merger Sub shall cease upon the Effective Time.
(b)
Fractional Shares
. No fraction
of a share of Parent Common Stock shall be issued in connection
with the conversion of CPT Common Stock in the CPT Merger and the
distribution of Parent Common Stock in respect thereof, but in lieu
of such fraction, the Exchange Agent shall make a cash payment
(without interest and subject to the payment of any applicable
withholding Taxes) equal to the same fraction of the market value
of a full share of Parent Common Stock, computed on the basis of
the mean of the high and low sales prices of Parent Common Stock as
reported on the NASDAQ Capital Market on the first full day on
which the Parent Common Stock is traded on the NASDAQ Capital
Market after the [Effective Time/Closing] (the “
Fractional Share Cash Amount
”).
The parties acknowledge that payment of the cash consideration in
lieu of issuing fractional shares was not separately bargained-for
consideration but merely represents a mechanical rounding-off for
purposes of simplifying the corporate and accounting complexities
which would otherwise be caused by the issuance of fractional
shares.
(c)
Treasury Shares
. At the
Effective Time, each share of capital stock held in the treasury of
CPT and each share of CPT Common Stock held by CPT Merger Sub
shall, by virtue of the CPT Merger and without any action on the
part of CPT or CPT Merger Sub be canceled, retired and cease to
exist and no payment shall be made with respect
thereto.
(d)
Dissenters’ Rights
.
Notwithstanding any provision of this Agreement to the contrary,
shares of CPT Common Stock which are issued and outstanding
immediately prior to the Effective Time and which are held by
holders who shall have complied with the provisions of Section 262
of the DGCL (the “
Dissenting
Shares
”) shall not be converted into or represent a
right to receive the applicable CPT Exchange Ratio, and holders of
such Dissenting Shares shall be entitled to receive payment of the
fair value of such Dissenting Shares in accordance with the
provisions of Section 262 of the DGCL, unless and until the
applicable holder fails to comply with the provisions of Section
262 of the DGCL or effectively withdraws or otherwise loses such
holder’s rights to receive payment of the fair value of such
holder’s Dissenting Shares under Section 262 of the DGCL. If,
after the Effective Time, any such holder fails to comply with the
provisions of Section 262 of the DGCL or effectively withdraws or
loses such right, such Dissenting Shares shall thereupon be treated
as if they had been converted at the CPT Effective Time into the
right to receive the applicable CPT Exchange Ratio and the Parent
shall remain liable for payment of the CPT Exchange Ratio with
respect to such Dissenting Shares. Notwithstanding anything to the
contrary contained in this
Section 3.1(d)
, if this
Agreement is terminated prior to the Effective Time, then the right
of any holder of CPT Common Stock to be paid the fair value of such
holder’s Dissenting Shares pursuant to Section 262 of the
DGCL shall cease. CPT shall give Parent notice of any written
demands for appraisal of CPT Common Stock received by CPT under
Section 262 of the DGCL, and shall give Parent the opportunity to
participate in all negotiations and Proceedings with respect
thereto. CPT shall not, except with the prior written consent of
Parent and Inuvo, (i) make any payment with respect to any such
demands for appraisal or (ii) offer to settle or settle any such
demands.
(e)
CPT Stock Options
. CPT and
Parent shall take all actions reasonably necessary (including any
required notices by CPT) to provide that, effective as of the
Effective Time, each outstanding option to purchase CPT Common
Stock (a “
CPT Stock
Option
”) will be assumed by Parent. Each CPT Stock
Option assumed by Parent will continue to have, and be subject to,
the same material terms and conditions of such option immediately
prior to the Effective Time, except that (i) each CPT Stock
Option will be exercisable for a number of shares of Parent Common
Stock equal to the product of the number of CPT Common Stock that
would have been issuable upon exercise of the CPT Stock Option
outstanding immediately prior to the Effective Time multiplied by
the CPT Exchange Ratio, rounded down to the nearest whole number of
shares of Parent Common Stock, and (ii) the per share exercise
price for the Parent Common Stock issuable upon exercise of such
assumed CPT Stock Option will be equal to the quotient determined
by dividing the per share exercise price for such CPT Stock Option
outstanding immediately prior to the Effective Time by the CPT
Exchange Ratio, rounded up to the nearest whole cent. The exercise
price and the number of shares purchasable pursuant to the assumed
CPT Stock Options as well as the terms and conditions of exercise
of such assumed options shall be designed to comply with Sections
424(a) and 409A of the Code. Any restriction on the exercisability
of such CPT Stock Option will continue in full force and effect,
and the term, exercisability, vesting schedule or other provisions
of such CPT Stock Option will remain unchanged. The CPT Merger will
not terminate any of the outstanding CPT Stock Options or
accelerate the exercisability or vesting of such CPT Stock Options
or the shares of Parent Common Stock underlying the CPT Stock
Options upon Parent’s assumption thereof in the CPT
Merger.
(f)
Treatment of CPT Warrants
. To
the extent the CPT Warrants have not been terminated in accordance
with their terms, at the Effective Time, (i) each outstanding
warrant to purchase CPT Common Stock (a “
CPT Warrant
”) shall by virtue of
the CPT Merger be assumed by Parent subject to the terms of such
CPT Warrant and (ii) CPT shall take all actions reasonably
necessary, including any required notices by CPT, to provide that,
effective as of the Effective Time, each outstanding CPT Warrant
will be assumed by Parent. Each CPT Warrant assumed by Parent will
continue to have, and be subject to, the same terms and conditions
of such warrant immediately prior to the Effective Time, except
that (A) each CPT Warrant will be exercisable for a number of
shares of Parent Common Stock equal to the product of the number of
CPT Common Stock that would have been issuable upon exercise of the
CPT Warrant outstanding immediately prior to the Effective Time
multiplied by the CPT Exchange Ratio, rounded down to the nearest
whole number of shares of Parent Common Stock, and (B) the per
share exercise price for the Parent Common Stock issuable upon
exercise of such assumed CPT Warrant will be equal to the quotient
determined by dividing the per share exercise price for such CPT
Warrant outstanding immediately prior to the Effective Time by the
CPT Exchange Ratio, rounded up to the nearest whole cent. Any
restriction on the exercisability of such CPT Warrant will continue
in full force and effect, and the term, exercisability or other
provisions of such CPT Warrant will remain unchanged. Consistent
with the terms of the CPT Warrants, the CPT Merger will not
accelerate the exercisability of such CPT Warrants or the shares of
Parent Common Stock underlying the CPT Warrants upon Parent’s
assumption thereof in the CPT Merger.
(g)
Treatment of CPT RSUs
. To the
extent the CPT RSUs have not been terminated in accordance with
their terms, at the Effective Time, CPT shall cause each
outstanding restricted stock unit to purchase CPT Common Stock
(each, a “
CPT
RSU
”) by virtue of the CPT Merger to vest in full so
to no longer be subject to any forfeiture or vesting requirements,
and all such shares of CPT Common Stock shall be considered
outstanding shares for all purposes of this Agreement, including,
without limitation, for purposes of the right to receive the CPT
Merger Consideration with respect thereto. The CPT Board (or, if
appropriate, any committee thereof administering the CPT Stock
Plans) shall adopt such resolutions or take such other actions as
may be required to effect the foregoing.
Section 3.2
The Inuvo
Merger
.
(a)
Inuvo Merger Consideration
.
Pursuant to the Inuvo Merger, each share of Inuvo Common Stock
outstanding immediately prior to the Effective Time (other than (i)
shares of Inuvo Common Stock held in Inuvo’s treasury, which
shall be cancelled pursuant to
Section 3.2(c)
, and (ii)
shares of Inuvo Common Stock held by Inuvo Merger Sub, which shall
be cancelled pursuant to
Section 3.2(c)
) shall by
virtue of the Inuvo Merger and without any action on the part of
the Inuvo Merger Sub, Inuvo or the holder thereof, be converted
into and represent the right to receive (1) that number of shares
of Parent Common Stock equal to the Inuvo Exchange Ratio (the
“
Inuvo Stock Merger
Consideration
”), and (2) $0.45 in cash (the
“
Inuvo Cash Merger
Consideration
”) (both (1) and (2) subject to
adjustment for any stock split, reverse split, stock dividend or
other similar distribution with respect to Inuvo Common Stock). All
such shares of Inuvo Common Stock, when so converted and paid for
in accordance with the preceding sentence, shall no longer be
outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of uncertificated Inuvo
Common Stock represented in book-entry form (“
Inuvo Book-Entry Shares
”) or a
certificate (each, an “
Inuvo
Certificate
”) representing any such shares of Inuvo
Common Stock shall cease to have any ownership or other rights with
respect thereto, except the right to receive the shares of Parent
Common Stock and the Inuvo Cash Merger Consideration, in each case
upon (i) the receipt of an “agent’s message” by
the Exchange Agent (or such other evidence, if any, of transfer as
the Exchange Agent may reasonably request) in the case of Inuvo
Book-Entry Shares; in each case, together with a duly completed and
validly executed letter of transmittal and such other documents as
may reasonably be requested by the Exchange Agent or (ii) the
surrender of such Inuvo Certificate in accordance with
Section 3.3
and without any
interest thereon. Pursuant to the Inuvo Merger, at the Effective
Time, each share of common stock of Inuvo Merger Sub issued and
outstanding immediately prior to the Effective Time shall, by
virtue of the Inuvo Merger and without any action on the part of
the holder thereof, be converted into and exchanged for one share
of Inuvo Common Stock. The separate existence and corporate
organization of Inuvo Merger Sub shall cease upon the Effective
Time.
(b)
Fractional Shares
. No fraction
of a share of Parent Common Stock shall be issued in connection
with the conversion of Inuvo Common Stock in the Inuvo Merger and
the distribution of Parent Common Stock in respect thereof, but in
lieu of such fraction, the Exchange Agent shall make a cash payment
(without interest and subject to the payment of any applicable
withholding Taxes) equal to the Fractional Share Amount. Parent and
Inuvo agree to use their best efforts to cause the Inuvo Merger to
be consummated in accordance with the terms of this Agreement. The
parties acknowledge that payment of the cash consideration in lieu
of issuing fractional shares was not separately bargained-for
consideration but merely represents a mechanical rounding-off for
purposes of simplifying the corporate and accounting complexities
which would otherwise be caused by the issuance of fractional
shares.
(c)
Treasury Shares
. At the
Effective Time, each share of capital stock held in the treasury of
Inuvo and each share of Inuvo Common Stock held by Inuvo Merger Sub
shall, by virtue of the Inuvo Merger and without any action on the
part of Inuvo or Inuvo Merger Sub be canceled, retired and cease to
exist and no payment shall be made with respect
thereto.
(d)
Inuvo Stock Options
. Inuvo and
Parent shall take all actions reasonably necessary (including any
required notices by Inuvo) to provide that, effective as of the
Effective Time, each outstanding option to purchase Inuvo Common
Stock (a “
Inuvo Stock
Option
”) will be assumed by Parent. Each Inuvo Stock
Option assumed by Parent will continue to have, and be subject to,
the same material terms and conditions of such option immediately
prior to the Effective Time, except that (i) each Inuvo Stock
Option will be exercisable for a number of shares of Parent Common
Stock equal to the product of the number of Inuvo Common Stock that
would have been issuable upon exercise of the Inuvo Stock Option
outstanding immediately prior to the Effective Time multiplied by
the Inuvo Option Exchange Ratio, rounded down to the nearest whole
number of shares of Parent Common Stock, and (ii) the per
share exercise price for the Parent Common Stock issuable upon
exercise of such assumed Inuvo Stock Option will be equal to the
quotient determined by dividing the per share exercise price for
such Inuvo Stock Option outstanding immediately prior to the
Effective Time by the Inuvo Option Exchange Ratio, rounded up to
the nearest whole cent. The exercise price and the number of shares
purchasable pursuant to the assumed Inuvo Stock Options as well as
the terms and conditions of exercise of such assumed options shall
be designed to comply with Sections 424(a) and 409A of the Code.
Any restriction on the exercisability of such Inuvo Stock Option
will continue in full force and effect, and the term,
exercisability, vesting schedule or other provisions of such Inuvo
Stock Option will remain unchanged. Except as provided in the Inuvo
Separation Agreements, the Inuvo Merger will not terminate any of
the outstanding Inuvo Stock Options or accelerate the
exercisability or vesting of such Inuvo Stock Options or the shares
of Parent Common Stock (or prior to the Effective Time, Inuvo
Common Stock) underlying the Inuvo Stock Options upon
Parent’s assumption thereof in the Inuvo Merger.
(e)
Treatment of Inuvo RSUs
. To
the extent the Inuvo Restricted Stock Units have not been
terminated in accordance with their terms, at the Effective Time,
Invuo shall cause each outstanding restricted stock unit to
purchase Inuvo Common Stock (each, an “
Inuvo RSU
”) to vest in full so to
no longer be subject to any forfeiture or vesting requirements, and
all such shares of Inuvo Common Stock shall be considered
outstanding shares for all purposes of this Agreement, including,
without limitation, for purposes of the right to receive the Inuvo
Merger Consideration with respect thereto. The Inuvo Board (or, if
appropriate, any committee thereof administering the Inuvo Stock
Plans) shall adopt such resolutions or take such other actions as
may be required to effect the foregoing.
Section 3.3 CPT Merger and Inuvo Merger Exchange
Procedures
.
(a)
Exchange Agent
. Prior to the
mailing of the Joint Proxy Statement/Prospectus, Parent shall
appoint a bank or trust reasonably acceptable to CPT and Inuvo to
act as exchange agent (the “
Exchange Agent
”) for the payment
of the CPT Merger Consideration and the Inuvo Merger Consideration
and shall enter into an agreement (the “
Exchange Agent Agreement
”)
relating to the Exchange Agent’s responsibilities under this
Agreement, which Exchange Agent Agreement shall be subject to the
reasonable approval of CPT and Inuvo. At or prior to the Effective
Time, Parent shall deposit, or shall cause to be deposited, with
the Exchange Agent for the benefit of the holders of CPT Common
Stock and Inuvo Common Stock, for exchange in accordance with this
Article III
through the Exchange Agent (i) evidence of Parent Common Stock
in book-entry or certificate form representing the number of shares
of Parent Common Stock sufficient to deliver the applicable CPT
Merger Consideration and Inuvo Stock Merger Consideration and
(ii) an amount of cash sufficient to make the Inuvo Cash
Merger Consideration and Fractional Share Cash Amount payments in
accordance with
Sections
3.2(a)
and
3.2(b)
(collectively, the
“
Exchange
Fund
”). Parent further agrees to provide to the
Exchange Agent, from time to time as needed, immediately available
funds sufficient to pay any dividends and other distributions
pursuant to
Section
3.3(c)
. The Exchange Agent shall promptly deliver the
applicable CPT Merger Consideration and Inuvo Merger Consideration
from the Exchange Fund to the former CPT and Inuvo stockholders who
are entitled thereto pursuant to
Section 3.1
and
Section 3.2
. Except as
contemplated by
Section
3.3(c)
and
Section
3.3(e)
, the Exchange Fund shall not be used for any other
purpose. Parent shall pay all charges and expenses, including those
of the Exchange Agent, incurred by it in connection with (i) the
exchange of CPT Common Stock for the CPT Merger Consideration, (ii)
the exchange of Inuvo Common Stock for the Inuvo Merger
Consideration, and (iii) other amounts contemplated by this
Article
III
.
(b)
Surrender of CPT Certificates, Inuvo
Certificates and Inuvo Book-Entry Shares
. Promptly after the
Effective Time, but in no event later than three (3) Business Days
after the Effective Time, Parent shall cause to be mailed to each
Person who was, at the Effective Time, a holder of record of the
shares of CPT Common Stock or Inuvo Common Stock, a form of letter
of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the CPT Certificates and
Inuvo Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent), and instructions for use in
effecting the surrender of the CPT Certificates, Inuvo
Certificates, CPT Book-Entry Shares, or Inuvo Book-Entry Shares
pursuant to such letter of transmittal. Upon surrender of a CPT
Certificate, CPT Book-Entry Shares, Inuvo Certificate or Inuvo
Book-Entry Shares to the Exchange Agent, together with such other
documents as may reasonably be required by Parent or the Exchange
Agent, the holder of such CPT Certificate, CPT Book-Entry Shares,
Inuvo Certificate or Inuvo Book-Entry Shares shall be entitled to
receive in exchange therefor the CPT Merger Consideration, Inuvo
Stock Merger Consideration and the Inuvo Cash Merger Consideration,
as the case may be, into which the shares represented by the CPT
Certificates, CPT Book-Entry Shares, Inuvo Certificates or Inuvo
Book-Entry Shares have been converted pursuant to this Agreement,
together with the Fractional Share Cash Amount and any dividends or
other distributions to which the CPT Certificates, CPT Book-Entry
Shares, the Inuvo Certificates or Inuvo Book-Entry Shares become
entitled in accordance with
Section 3.3(c)
, if any, and
the CPT Certificate, CPT Book-Entry Shares, Inuvo Certificate or
Inuvo Book-Entry Share so surrendered shall forthwith be cancelled
and exchanged as provided in this
Article III
. No interest will
be paid or will accrue on any cash payable pursuant to
Section 3.3(c)
or
Section 3.3(e)
.
(c)
Dividends and Distributions;
Treatment of Unexchanged Shares
. No dividends or other
distributions declared or made after the Effective Time with
respect to the Parent Common Stock with a record date after the
Effective Time shall be paid to any holder of any unsurrendered
share of CPT Common Stock or Inuvo Common Stock who is entitled to
receive Parent Common Stock upon such surrender, and no Fractional
Share Cash Amount payment in respect of fractional shares shall be
paid to any such holder pursuant to
Section 3.3(e)
, unless and
until the holder of such CPT Common Stock or Inuvo Common Stock
shall surrender such CPT Common Stock or Inuvo Common Stock in
accordance with
Section
3.3(b)
.
(d)
Full Satisfaction
. The CPT
Merger Consideration and the Inuvo Merger Consideration delivered
upon surrender of CPT Common Stock and Inuvo Common Stock in
accordance with the terms of this Agreement (including any cash
paid pursuant to
Section
3.3 (c))
shall be deemed to have been paid in full
satisfaction of all rights pertaining to the such CPT Common Stock
and Inuvo Common Stock.
(e)
Termination of Fund
. Any
portion of the Exchange Fund which remains undistributed to the
holders of CPT Common Stock and Inuvo Common Stock twelve (12)
months after the Effective Time shall be returned to Parent, upon
demand, and, from and after such delivery to Parent, any holders of
CPT Common Stock or Inuvo Common Stock who have not theretofore
complied with this
Article III
shall thereafter
look only to Parent for the CPT Merger Consideration, Inuvo Stock
Merger Consideration and the Inuvo Cash Merger Consideration
payable in respect of such CPT Common Stock and Inuvo Common Stock
and any cash paid in respect of the Fractional Share Cash Amount
and any dividends or other distributions with respect to Parent
Common Stock to which they are entitled pursuant to
Section 3.3(c)
, in each case,
without any interest thereon. Neither Parent, the Exchange Agent,
CPT nor Inuvo shall be liable to any holder of CPT Common Stock or
Inuvo Common Stock for any such shares of Parent Common Stock (or
dividends or distributions with respect thereto) or cash from the
Exchange Fund delivered to a public official pursuant to any
abandoned property, escheat or similar Law.
(f)
Lost, Stolen or Destroyed CPT
Certificates and Inuvo Certificates
. If any CPT Certificate
or Inuvo Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming
such CPT Certificate or Inuvo Certificate to be lost, stolen or
destroyed and, if required by Parent or Exchange Agent, the posting
by such Person of a bond in such reasonable amount as Parent or
Exchange Agent may direct as indemnity against any claim that may
be made against Parent with respect to such CPT Certificate or
Inuvo Certificate, the Exchange Agent shall pay in exchange for
such lost, stolen or destroyed CPT Certificate or Inuvo Certificate
the CPT Merger Consideration, Inuvo Stock Merger Consideration
and/or the Inuvo Cash Merger Consideration, as case may be, payable
in respect of the CPT Common Stock or Inuvo Common Stock
represented by such CPT Certificate or Inuvo Certificate, any cash
paid in respect of the Fractional Share Cash Amount and any
dividends or other distributions to which the holders thereof are
entitled pursuant to
Section 3.3(c)
, in each case,
without any interest thereon.
(g)
Withholding Taxes
. Parent or
the Exchange Agent shall be entitled to deduct and withhold from
the consideration otherwise payable pursuant to this Agreement to
any holder of CPT Common Stock or Inuvo Common Stock such amounts
as Parent or the Exchange Agent are required to deduct and withhold
under the Code, or any Tax Law, with respect to the making of such
payment. To the extent that amounts are so withheld by Parent or
the Exchange Agent, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of CPT
Common Stock or Inuvo Common Stock in respect of whom such
deduction and withholding was made by Parent or the Exchange
Agent.
(h)
Exchange Fund Cash
. The
Exchange Agent shall invest any cash included in the Exchange Fund,
as directed by the Parent, on a daily basis;
provided
, that such investments shall
be in obligations of or guaranteed by the United States of America
in commercial paper obligations rated A-1 or P-1 or better by
Moody’s Investors Service, Inc. or Standard &
Poor’s Corporation, respectively, in certificates of deposit,
bank repurchase agreements or banker’s acceptances of
commercial banks with capital exceeding $1 billion, or in
money market funds having a rating in the highest investment
category granted by a recognized credit rating agency at the time
of acquisition or a combination of the foregoing and, in any such
case, no such instrument shall have a maturity exceeding three (3)
months. No investment or loss on the investment of the Exchange
Fund in accordance with the preceding sentence shall affect the
amounts payable to the holder of CPT Common Stock or Inuvo Common
Stock pursuant to this
Article III
. Any interest and
other income resulting from such investments shall be paid to
Parent upon termination of the Exchange Fund pursuant to
Section 3.3(f)
. In
the event the cash in the Exchange Fund shall be insufficient to
fully satisfy all of the payment obligations to be made by the
Exchange Agent hereunder, Parent shall promptly deposit cash into
the Exchange Fund in an amount that is equal to the deficiency in
the amount of cash required to fully satisfy such payment
obligations.
(i)
No Further Ownership Rights in
Shares
. From and after the Effective Time, the stock
transfer books of CPT and Inuvo shall be closed, and there shall be
no further registration of transfers on the stock transfer books of
Parent of CPT Common Stock or Inuvo Common Stock that were
outstanding immediately prior to the Effective Time. From and after
the Effective Time, subject to applicable Law in the case of
Dissenting Shares, all holders of CPT Certificates, CPT Book-Entry
Shares, Inuvo Certificates and/or Inuvo Book-Entry Shares shall
cease to have any rights as CPT and Inuvo stockholders other than
the right to receive the CPT Exchange Ratio or Inuvo Stock Merger
Consideration and the Inuvo Cash Merger Consideration into which
the shares represented by such CPT Certificates, CPT Book-Entry
Shares, Inuvo Certificates and/or Inuvo Book-Entry Shares have been
converted pursuant to this Agreement upon the surrender of such CPT
Certificates, CPT Book-Entry Shares, Inuvo Certificates and/or
Inuvo Book-Entry Shares in accordance with
Section 3.3(b)
(together with
the Inuvo Cash Merger Consideration amount, Fractional Share Cash
Amount and any dividends or other distributions to which such CPT
Certificates, CPT Book-Entry Shares, Inuvo Certificates and/or
Inuvo Book-Entry Shares become entitled in accordance with
Section 3.3(c)
),
without interest. If, after the Effective Time, any CPT
Certificates, CPT Book-Entry Shares, Inuvo Certificates and/or
Inuvo Book-Entry Shares formerly representing CPT Common Stock or
Inuvo Common Stock are presented to the Parent or the Exchange
Agent for any reason, such CPT Certificates, Inuvo Certificates or
Inuvo Book-Entry Shares shall be cancelled and exchanged as
provided in this
Article
III
, subject to applicable Law in the case of Dissenting
Shares. Any cash paid in respect of the Fractional Share Cash
Amount and any dividends or other distributions to which the
holders thereof are entitled pursuant to
Section 3.5(c)
, in each case,
net of any required withholding for Taxes and without any interest
thereon.
Section
3.4
Adjustments
.
Notwithstanding anything in this Agreement to the contrary, if,
between the date of this Agreement and the Effective Time, the
issued and outstanding CPT Common Stock or Inuvo Common Stock shall
have been changed into a different number of shares or a different
class by reason of any stock split, reverse stock split, stock
dividend, reclassification, redenomination, recapitalization,
split-up, combination, exchange of shares or other similar
transaction, the CPT Merger Consideration (including the CPT
Exchange Ratio), Inuvo Stock Merger Consideration (including the
Inuvo Exchange Ratio) and Inuvo Cash Merger Consideration and any
other dependent items shall be appropriately adjusted to provide to
the holders of CPT Common Stock and Inuvo Common Stock the same
economic and proportional effect as contemplated by this Agreement
prior to such action and as so adjusted shall, from and after the
date of such event, be the CPT Merger Consideration, Inuvo Stock
Merger Consideration, Inuvo Cash Merger Consideration or other
dependent item, subject to further adjustment in accordance with
this sentence;
provided,
however,
that nothing in this
Section 3.4
shall be
constrained to permit CPT, Inuvo or Parent to take any action with
respect to its securities that is prohibited by the terms of this
Agreement.
Section
3.5
Reservation
of Stock
. Prior to the
Effective Time, CPT shall cause Parent to take all necessary action
to reserve for future issuance shares of Parent Common Stock at
least equal to the number of shares of Parent Common Stock that
will be subject to the CPT Options, CPT Warrants, CPT RSUs, Inuvo
Options, and Inuvo RSUs as a result of the actions contemplated by
this Article III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CPT, PARENT, CPT MERGER SUB AND
INUVO MERGER SUB
Except
for the disclosures expressly set forth in the correspondingly
numbered Section of the disclosure letter of CPT delivered to Inuvo
concurrently with the parties’ execution of this Agreement
(the “
CPT Disclosure
Schedule
”), CPT, Parent, CPT Merger Sub and Inuvo
Merger Sub jointly represent and warrant to Inuvo as
follows:
Section 4.1 Organization and Qualification
.
(a)
Each of CPT,
Parent, CPT Merger Sub and Inuvo Merger Sub is a corporation, duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization and has the requisite power and
authority to own, lease, license and operate its assets and
properties and to carry on its business as it is now being
conducted. Each of CPT, Parent, CPT Merger Sub and Inuvo Merger Sub
is duly licensed or qualified to do business, and is in good
standing, in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification
necessary, except where such failure to be so duly approved,
qualified or licensed and in good standing has not had and would
not reasonably be expected to have, individually or in the
aggregate, a CPT Material Adverse Effect.
Section 4.1(a)
of the CPT
Disclosure Schedule lists each jurisdiction in which CPT is
qualified to do business as a foreign entity.
(b)
Complete, true and
correct copies of CPT’s certificate of incorporation, as
amended (the “
CPT
Certificate of Incorporation
”), and bylaws, as amended
(the “
CPT
Bylaws
”), a have been made available to Inuvo in the
CPT Data Room. The CPT Certificate of Incorporation and the CPT
Bylaws are in full force and effect. CPT is not in violation of any
provision of the CPT Certificate of Incorporation or the CPT
Bylaws. CPT has made available to Inuvo in the CPT Data Room copies
of the charters of each committee of CPT’s Board of Directors
and any code of conduct or similar policy adopted by
CPT.
(c)
Complete, true and
correct copies of Parent’s, CPT Merger Sub’s and Inuvo
Merger Sub’s certificate of incorporation or articles of
incorporation and bylaws have been made available to Inuvo in the
CPT Data Room, are in full force and effect, and neither Parent,
nor CPT Merger Sub or Inuvo Merger Sub, is in violation of any
provision of its respective certificate of incorporation or
articles of incorporation and bylaws.
Section 4.2 Capitalization
.
(a)
The authorized
capital stock of CPT consists of 100,000,000 shares of CPT Common
Stock and 10,000,000 shares of preferred stock, par value $0.0001
per share (“
CPT Preferred
Stock
”). As of
the Execution Date
,
(i)
14,087,862
shares of CPT
Common Stock were issued and outstanding, (ii)
no
shares of CPT Preferred
Stock were issued or outstanding, (iii)
no
shares of CPT Common
Stock were held in the treasury of CPT, (iv)
1,997,500
shares of CPT
Common Stock were reserved for issuance upon exercise of CPT Stock
Options, (v)
693,998
shares of CPT Common
Stock were reserved for issuance upon exercise of CPT Warrants,
(vi)
928,893
shares of CPT Common Stock were reserved for issuance upon exercise
of CPT RSUs, and (vii)
828,813
shares of CPT Common
Stock were reserved for issuance upon conversion of CPT Convertible
Notes. As of
October
31, 2018
, the Company had $
3,694,484
in principal and
interest outstanding under Convertible Promissory Notes
(“
CPT Convertible
Notes
”). Each issued and outstanding share of capital
stock of CPT is, and each share of CPT Common Stock reserved for
issuance as specified above will be, upon issuance on the terms and
conditions specified in the instruments pursuant to which it is
issuable, duly authorized, validly issued, fully paid,
nonassessable. All of the issued and outstanding shares of capital
stock of CPT were issued in compliance with applicable Laws. None
of the issued and outstanding shares of capital stock of CPT were
issued in violation of any agreement, arrangement or commitment to
which CPT is a party or is subject to or in violation of any
preemptive or similar rights of any Person. All of the issued and
outstanding shares of CPT Common Stock are owned of record by the
Persons set forth in
Section 4.2(a)
of the CPT
Disclosure Schedule. Since the CPT Balance Sheet Date, there are no
dividends or distributions which have accrued or been declared but
are unpaid upon any of CPT’s capital stock.
(b)
Except for CPT
Stock Options set forth in
Section 4.2(c)
of CPT
Disclosure Schedule, CPT Warrants set forth in
Section 4.2(d)
of CPT
Disclosure Schedule, and CPT Convertible Notes, as of the date
hereof, there are no outstanding subscriptions, options, calls,
Contracts, commitments, understandings, restrictions, arrangements,
rights or warrants, including any right of conversion or exchange
under any outstanding security, instrument or other agreement and
also including any rights plan or other anti-takeover agreement,
obligating CPT or any Subsidiary of CPT to issue, deliver or sell,
or cause to be issued, delivered or sold, CPT Common Stock or CPT
Preferred Stock or obligating CPT or any Subsidiary of CPT to
grant, extend or enter into any such agreement or commitment.
Except as set forth in
Section 4.2(b)
of the CPT
Disclosure Schedule, as of the date hereof, there are no
obligations, contingent or otherwise, of CPT or its Subsidiaries to
(i) repurchase, redeem or otherwise acquire any CPT Common
Stock or CPT Preferred Stock or the capital stock or other equity
interests of any Subsidiary of CPT or (ii) provide material
funds to, or make any material investment in (in the form of a
loan, capital contribution or otherwise), or provide any guarantee
with respect to the obligations of, any Person other than a CPT
Subsidiary. Except as set forth in
Section 4.2(b)
of the CPT
Disclosure Schedule, there are no outstanding stock appreciation
rights or similar derivative securities or rights of CPT or any of
its Subsidiaries. There are no bonds, debentures, notes or other
Indebtedness of CPT having the right to vote (or convertible into,
or exchangeable for, securities having the right to vote) on any
matters on which stockholders of CPT may vote. Except as set forth
in
Section 4.2(b)
of the CPT Disclosure Schedule, there are no voting trusts,
irrevocable proxies or other agreements or understandings to which
CPT or any Subsidiary of CPT is a party or is bound with respect to
the voting of any CPT Common Stock or CPT Preferred Stock. Except
as set forth in
Section
4.2(b)
of the CPT Disclosure Schedule, CPT has not agreed to
register any securities under the Securities Act or under any state
securities law or granted registration rights to any Person (except
rights which have terminated or expired).
(c)
Section 4.2(c)
of the CPT
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all holders of outstanding CPT Stock Options,
including the date of grant, the number of shares of CPT Common
Stock subject to each such option, the exercise price per share of
CPT Common Stock, the exercise and vesting schedule, the number of
shares of CPT Common Stock remaining subject to each such option,
the CPT Stock Options that are incentive stock options for purposes
of the Code, and the maximum term of each such option. Complete and
correct copies of (i) all written agreements, including
amendments thereto, evidencing the grant of CPT Stock Options and
(ii) all the CPT Board consents approving each CPT Stock
Option, including the written agreement and amendments thereto,
have been made available to Inuvo in the CPT Data Room. None of the
CPT Stock Options were granted with exercise prices below fair
market value on the date of grant. All CPT Stock Options have been
validly issued and properly approved by the CPT Board (or a duly
authorized committee or subcommittee thereof) in compliance with
all applicable Law and recorded on the CPT Financial Statements in
accordance with GAAP, and no such grants involved any “back
dating,” “forward dating” or similar practices
with respect to such grants.
(d)
CPT has previously
made available to Inuvo in the CPT Data Room complete and correct
copies of each CPT Warrant.
Section 4.2(d)
of the CPT
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all holders of outstanding CPT Warrants,
including the date of issuance, the number of shares of CPT Common
Stock subject to each such warrant, the exercise price per share of
CPT Common Stock, the exercise and vesting schedule, the number of
shares of CPT Common Stock remaining subject to each such warrant,
and the maximum term of each such warrant. Complete and correct
copies of the relevant forms of written agreements, including forms
of amendments thereto, evidencing the issuance of CPT Warrants have
been made available to Inuvo in the CPT Data Room. All CPT Warrants
have been validly issued and properly approved by the CPT Board (or
a duly authorized committee or subcommittee thereof) in compliance
with all applicable Law and recorded on the CPT Financial
Statements in accordance with GAAP.
(e)
Section 4.2(e)
of the CPT
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all holders of outstanding CPT RSUs, including
the date of grant, the number of shares of CPT Common Stock subject
to each such restricted stock unit, the exercise price per share of
CPT Common Stock, the exercise and vesting schedule, the number of
shares of CPT Common Stock remaining subject to each such
restricted stock unit, and the maximum term of each such restricted
stock unit. All CPT RSUs have been validly issued and properly
approved by the CPT Board (or a duly authorized committee or
subcommittee thereof) in compliance with all applicable Law and
recorded on the CPT Financial Statements in accordance with
GAAP.
(f)
Section 4.2(f)
of the CPT
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all holders of outstanding CPT Convertible
Notes, including the date of issuance, and the principal and
interest outstanding thereunder as of one day prior to the date
hereof. Complete and correct copies of (i) all written
agreements, including amendments thereto, evidencing the issuance
of CPT Convertible Notes, and (ii) all the CPT Board consents
approving each CPT Convertible Notes, including the written
agreement and amendments thereto, have been made available to Inuvo
in the CPT Data Room. All CPT Convertible Notes have been validly
issued and properly approved by the CPT Board (or a duly authorized
committee or subcommittee thereof) in compliance with all
applicable Law and recorded on the CPT Financial Statements in
accordance with GAAP, and no such grants involved any “back
dating,” “forward dating” or similar practices
with respect to such grants.
(g)
Section 4.2(g)
of the CPT
Disclosure Schedule sets forth the capitalization of Parent, CPT
Merger Sub, and Inuvo Merger Sub as of the date
hereof.
(h)
Since their
respective dates of incorporation, none of Parent, CPT Merger Sub,
and Inuvo Merger Sub has carried on any business or conducted any
operations other than the execution of this Agreement, the
performance of its obligations hereunder, and matters ancillary
hereto.
Section 4.3 Subsidiaries
.
(a)
Section 4.3(a)
of the CPT
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all Subsidiaries of CPT. Each Subsidiary of CPT
(including without limitation Parent, CPT Merger Sub and Inuvo
Merger Sub) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has
the requisite power and authority to own, lease, license and
operate its assets and properties and to carry on its business as
it is now being conducted, and each Subsidiary of CPT is qualified
to transact business, and is in good standing, in each jurisdiction
in which the properties owned, leased, licensed or operated by it
or the nature of the business conducted by it makes such
qualification necessary, except where such failure to be so duly
approved, qualified or licensed and in good standing has not had
and would not reasonably be expected to have, individually or in
the aggregate, a CPT Material Adverse Effect.
(b)
All of the
outstanding shares of capital stock or other equity interests of
each Subsidiary of CPT are validly issued, fully paid,
nonassessable and free of preemptive rights and are wholly-owned
directly or indirectly by CPT. All of the issued and outstanding
shares of capital stock of each Subsidiary of CPT were issued in
compliance with applicable Laws. None of the issued and outstanding
shares of capital stock of any Subsidiary of CPT were issued in
violation of any agreement, arrangement or commitment to which any
Subsidiary of CPT or CPT is a party or is subject to or in
violation of any preemptive or similar rights of any Person. There
are no subscriptions, options, warrants, voting trusts, proxies or
other commitments, understandings, restrictions or arrangements
relating to the issuance, sale, voting or transfer of any shares of
capital stock or other equity interests of any Subsidiary of CPT,
including any right of conversion or exchange under any outstanding
security, instrument or agreement. CPT has no material investment
in any entity other than its Subsidiaries.
(c)
CPT has heretofore
furnished to Inuvo in the CPT Data Room a complete and correct copy
of each of CPT’s Subsidiaries’ Articles of
Incorporation, Certificate of Incorporation, Articles of
Organization or Operating Agreement, as the case may be
(collectively, the “
CPT
Subsidiary Charters
”), and Bylaws (collectively, the
“
CPT Subsidiary
Bylaws
”), each as amended to date. The CPT Subsidiary
Charters and the CPT Subsidiary Bylaws are in full force and
effect. CPT’s Subsidiaries are not in violation of any
provision of the applicable CPT Subsidiary Charters or the
applicable CPT Subsidiary Bylaws. CPT has made available to Inuvo
in the CPT Data Room copies of the charters of each committee of
the Board of Directors of each Subsidiary of CPT and any code of
conduct or similar policy adopted by each Subsidiary of
CPT.
Section 4.4 Authority; Non-Contravention;
Approvals
.
(a)
CPT has all
necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and, subject to
obtaining the Required CPT Stockholder Vote, to consummate the CPT
Merger and the other transactions contemplated by this Agreement.
Subject to obtaining the Required CPT Stockholder Vote, the
execution, delivery and performance by CPT of this Agreement, and
the consummation by CPT of the CPT Merger and the other
transactions contemplated by this Agreement, have been duly
authorized by all necessary corporate action on the part of CPT,
and no other actions on the part of CPT are necessary to authorize
this Agreement or to consummate the CPT Merger or the other
transactions contemplated by this Agreement other than (i)
obtaining the Required CPT Stockholder Vote, (ii) the filing and
recordation of the CPT Certificate of Merger as required by the
DGCL and (iii) filings by CPT as may be required by the HSR Act.
This Agreement has been duly executed and delivered by CPT and,
assuming the due authorization, execution and delivery by Inuvo,
constitutes a valid and binding obligation of CPT enforceable
against CPT in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at Law).
The affirmative vote of the holders of a majority of the issued and
outstanding CPT Common Stock (i) entitled to vote at a duly called
and held meeting of CPT stockholders or (ii) action by written
consent as permitted by the CPT Bylaws, will be the only vote of
the holders of capital stock of CPT necessary to approve and adopt
this Agreement and the Merger (the “
Required CPT Stockholder
Vote
”).
(b)
Parent has all
requisite corporate power and authority and has taken all corporate
action necessary in order to authorize, execute, deliver and
perform its obligations under this Agreement, and to consummate the
Mergers and the other transactions contemplated hereby. This
Agreement has been duly executed and delivered by Parent and
constitutes a valid and binding agreement of Parent enforceable
against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at
Law).
(c)
CPT Merger Sub has
all requisite corporate power and authority and has taken all
corporate action necessary in order to authorize, execute, deliver
and perform its obligations under this Agreement, and to consummate
the Mergers and the other transactions contemplated hereby. This
Agreement has been duly executed and delivered by CPT Merger Sub
and constitutes a valid and binding agreement of CPT Merger Sub
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at
Law).
(d)
Inuvo Merger Sub
has all requisite corporate power and authority and has taken all
corporate action necessary in order to authorize, execute, deliver
and perform its obligations under this Agreement, and to consummate
the Mergers and the other transactions contemplated hereby. This
Agreement has been duly executed and delivered by Inuvo Merger Sub
and constitutes a valid and binding agreement of Inuvo Merger Sub
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at
Law).
(e)
Except as disclosed
in
Section 4.4(e)
of the CPT Disclosure Schedule, the execution, delivery and
performance of this Agreement by CPT, CPT Merger Sub, Inuvo Merger
Sub and Parent and the consummation of the CPT Merger and the Inuvo
Merger and the other transactions contemplated hereby do not and
will not violate, conflict with, give rise to the right to modify
or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of
termination or acceleration under, or require any offer to purchase
or any prepayment of any debt, or result in the creation of any
Lien, security interest or encumbrance upon any of the properties
or assets of CPT or any of its Subsidiaries (including without
limitation Parent, CPT Merger Sub and Inuvo Merger Sub) under any
of the terms, conditions or provisions of (i) the respective
certificate of incorporation or bylaws or similar governing
documents of CPT or any of its Subsidiaries, (ii) any statute,
Law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any Governmental Entity
applicable to CPT or any of its Subsidiaries or any of their
respective properties or assets, subject in the case of
consummation, to obtaining CPT Required Statutory Approvals and the
Required CPT Stockholder Vote, (iii) any CPT Permit, or
(iv) any Contract to which CPT or any of its Subsidiaries is a
party or by which CPT or any of its Subsidiaries or any of their
respective properties or assets may be bound or affected, other
than such violations, conflicts, rights to modify, breaches,
defaults, terminations, accelerations or creations of Liens,
security interests or encumbrances that would not, individually or
in the aggregate, reasonably be expected to result in a CPT
Material Adverse Effect.
(f)
Except as disclosed
in
Section 4.4(f)
of the CPT Disclosure Schedule and for (i) obtaining the
Required CPT Stockholder Vote, (ii) the filings by CPT as may
be required by the HSR Act, (iii) the filing and effectiveness of
the Registration Statement with the SEC, including the Joint Proxy
Statement/Prospectus, and (iv) the filing of the CPT Certificate of
Merger and the Inuvo Certificate of Merger as required by the DGCL
(the filings and approvals referred to in clauses (i), (ii), (iii)
and (iv) collectively, the “
CPT Required Statutory
Approvals
”), no declaration, filing or registration
with, or notice to, or authorization, consent or approval of, any
Governmental Entity or other Person is necessary for the execution
and delivery of this Agreement by CPT or the consummation by CPT of
the CPT Merger or the Inuvo Merger or the other transactions
contemplated hereby, other than such declarations, filings,
registrations, notices, authorizations, consents or approvals
which, if not made or obtained, as the case may be, would not,
individually or in the aggregate, reasonably be expected to have a
CPT Material Adverse Effect.
Section 4.5 CPT Financial Statements
.
(a)
CPT has made
available to Inuvo in the CPT Data Room copies of CPT’s
audited consolidated financial statements as of and for the fiscal
years ended December 31, 2016 and 2017, together with the notes
thereto (the “
CPT Audited
Financial Statements
”). The CPT Audited Financial
Statements were prepared in accordance with GAAP applied on a
consistent basis throughout the periods indicated (except as
otherwise stated in such financial statements, including the
related notes) and each fairly presents, in all material respects,
the consolidated financial position, results of operations and cash
flows of CPT and its consolidated Subsidiaries as at the respective
dates thereof and for the respective periods indicated therein,
except as otherwise set forth in the notes thereto.
(b)
CPT has made
available to Inuvo in the CPT Data Room copies of CPT’s
unaudited consolidated financial statements, including the notes
thereto, for the nine (9) month period ended September 30, 2018
(the “
CPT Unaudited
Financial Statements
”). The CPT Unaudited Financial
Statements were prepared in accordance with GAAP on a basis
consistent with the CPT Audited Financial Statements and are
correct and complete and fairly present, in all material respects,
the financial position and condition of CPT at the date thereof and
the results of operations for the period covered thereby (subject
to normal year-end adjustments and the absence of complete
footnotes) (the CPT Audited Financial Statements and the CPT
Unaudited Financial Statements, together, the “
CPT Financial
Statements
”).
(c)
CPT has disclosed
to its auditors (and made available to Inuvo in the CPT Data Room a
summary of the significant aspects of such disclosure) (i) any
significant deficiencies or material weaknesses in the design or
operation of internal control over financial reporting and
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in
CPT’s internal controls over financial
reporting.
Section
4.6
Absence
of Undisclosed Liabilities
. Except as set
forth in
Section
4.6
of the CPT Disclosure Schedule, neither CPT nor any of
its Subsidiaries has any Liabilities that are required to be
reported by GAAP, except such Liabilities: (a) as and to the
extent set forth on the audited consolidated balance sheet of CPT
and its Subsidiaries as of December 31, 2017 (the
“
CPT
Balance Sheet Date
”); or (b)
incurred pursuant to or in connection with this Agreement; or
(c) incurred after the CPT Balance Sheet Date in the ordinary
course of business consistent with past practice which,
individually or in the aggregate, would not have a CPT Material
Adverse Effect.
Section
4.7
Litigation
.
Except as set forth in
Section 4.7
of the CPT
Disclosure Schedule, there is no Proceeding pending, or, to the
Knowledge of CPT, threatened, against CPT, any of its Subsidiaries
or any of their respective directors, managers or officers (in
their capacities as such or relating to their employment, services
or relationship with CPT or any of its Subsidiaries) or that would
materially relate to or affect CPT or any of its Subsidiaries.
Neither CPT nor any Subsidiary has committed a violation of any
judgment, decree, injunction or order of any Governmental Entity
applicable to CPT or any Subsidiary or any of their respective
properties or assets. Since January 1, 2016, there has not been any
internal investigations or inquiries conducted by CPT, the CPT
Board (or any committee thereof) or any other Person at the request
of any of the foregoing concerning any financial, accounting, Tax,
conflict of interest, self-dealing, fraudulent or deceptive conduct
or other misfeasance or malfeasance issues. Neither CPT nor its
Subsidiaries, nor, to the Knowledge of CPT, any of the directors,
managers or officers of CPT or any of its Subsidiaries (in their
capacities as such or relating to their employment, services or
relationship with CPT or any of its Subsidiaries as applicable) is
subject to any judgment, decree, injunction or order of any
Governmental Entity. Except as set forth in
Section 4.7
of the CPT
Disclosure Schedule, neither CPT nor its Subsidiaries has any
Proceeding pending against any other Person.
Section
4.8
Absence
of Certain Changes or Events
. Except as set
forth in
Section
4.8
of the CPT Disclosure Schedule, since September 30,
2018, CPT and its Subsidiaries have conducted their businesses in
the ordinary course of business consistent with past practice and
there has not been:
(a)
any circumstance
or event, or series of circumstances or events, which, individually
or in the aggregate, has had or would reasonably be expected to
have a CPT Material Adverse Effect;
(b)
any material
change in any method of accounting or accounting practice by CPT or
any Subsidiary, except for any such change required by reason of a
concurrent change in GAAP or by applicable Law;
(c)
any material
revaluation by CPT or any Subsidiary of a material asset
(including, without limitation, any material writing down of the
value of inventory or material writing-off of notes or accounts
receivable);
(d)
any transaction or
commitment made, or any Contract or agreement entered into, by CPT
or any Subsidiary, relating to its assets or business (including,
without limitation, the acquisition, disposition, leasing or
licensing of any tangible or intangible assets) or any
relinquishment by CPT or any Subsidiary of any Contract or other
right, in either case, material to CPT and Subsidiary taken as a
whole, other than transactions and commitments in the ordinary
course of business consistent with past practice and those
contemplated by this Agreement;
(e)
any declaration,
setting aside or payment of any dividend (whether in cash, stock or
property) or other distribution in respect of CPT’s capital
stock or any redemption, purchase or other acquisition of any of
CPT’s securities;
(f)
any split,
combination or reclassification of any of CPT’s capital stock
or any issuance or the authorization of any issuance of any other
securities in respect of, in lieu of or in substitution for shares
of its capital stock;
(g)
any amendment of
any material term of any outstanding security of CPT or any
Subsidiary;
(h)
any material
incurrence, assumption or guarantee by CPT or any Subsidiary of any
Indebtedness for borrowed money other than in the ordinary course
of business and in amounts and on terms consistent with past
practices;
(i)
any creation or
assumption by CPT or any Subsidiary of any material Lien on any
material asset(s) (alone or in the aggregate) other than in the
ordinary course of business consistent with past
practice;
(j)
any making of any
material loan, advance or capital contributions to or investment in
any entity or person other than loans, advances or capital
contributions to or investments in any Subsidiary and except for
cash advances to employees for reimbursable travel and other
reasonable business expenses, in each case made in the ordinary
course of business consistent with past practice;
(k)
any damage,
destruction or other casualty loss (whether or not covered by
insurance) affecting the business or assets of CPT or any
Subsidiary which, individually or in the aggregate, has had or
would reasonably be expected to have a CPT Material Adverse
Effect;
(l)
any material grant
of equity or other compensation, or increase in the benefits under,
or the establishment, material amendment or termination of, any CPT
Benefit Plan covering current or former employees, officers,
consultants, or directors of CPT or any Subsidiary, or any material
increase in the compensation payable or to become payable to or any
other material change in the employment terms for any current or
former directors or officers of CPT or any of its Subsidiaries or
any other employee earning noncontingent cash compensation in
excess of $100,000 per year;
(m)
any entry by CPT
or any Subsidiary into any employment, consulting, severance,
change in control, retention, termination or indemnification
agreement with any current or former director, consultant or
officer of CPT or any Subsidiary, entry into any such agreement
with any person for a noncontingent cash amount in excess of
$250,000 per year or outside the ordinary course of business, or
entry into any employment agreement other than on an at-will
basis;
(n)
any labor dispute,
other than routine individual grievances, or any activity or
Proceeding by a labor union or representative thereof to organize
any employees of CPT or any of its subsidiaries for the purposes of
forming a labor union or labor organization, or for selecting a
labor union or labor organization as a collective bargaining
representative;
(o)
any authorization
or commitment with respect to, any single capital expenditure that
was in excess of $1,000,000 individually or $5,000,000 in the
aggregate; or
(p)
any authorization
of, or agreement by CPT or any Subsidiary to take, any of the
actions described in this
Section 4.8
, except as
expressly contemplated by this Agreement.
Section 4.9 Compliance with Applicable Law;
Permits
.
(a)
Except as set forth
in
Section 4.9
of
the CPT Disclosure Schedule, CPT and its Subsidiaries hold all
material authorizations, permits, licenses, certificates,
easements, concessions, franchises, variances, exemptions, orders,
consents, registrations, approvals and clearances of all
Governmental Entities (including, without limitation, any
Governmental Entity engaged in the regulation of CPT Products)
which are required for CPT and its Subsidiaries to own, lease,
license and operate their respective properties and other assets
and to carry on their respective business in the manner as they are
being conducted as of the date hereof (the “
CPT Permits
”), and all CPT
Permits are valid, and in full force and effect other than any CPT
Permit which if not held or not valid, as the case may be, would
not individually or in the aggregate, reasonably be expected to
have a CPT Material Adverse Effect.
Section 4.9
of the CPT
Disclosure Schedule sets forth a list of all material CPT
Permits.
(b)
CPT and its
Subsidiaries are, and have been since January 1, 2016, in
compliance with the terms of CPT Permits and all applicable Laws
relating to CPT and its Subsidiaries or their respective
businesses, assets or properties, except where the failure to be in
compliance with the terms of CPT Permits or such applicable Law
would not, individually or in the aggregate, reasonably be expected
to have a CPT Material Adverse Effect. Since January 1, 2016,
neither CPT nor any of its Subsidiaries has received any written
notification from any Governmental Entity (i) asserting that
CPT or any of its Subsidiaries is not in compliance with any Law or
CPT Permit, or (ii) threatening to revoke any CPT
Permit.
Section 4.10 CPT Material Contracts; Defaults
.
(a)
Except as set forth
in
Section 4.10(a)
of the CPT Disclosure Schedule and previously made available to
Inuvo, neither CPT nor any of its Subsidiaries is a party to, and
none of their respective assets, businesses or operations is bound
by, any Contract (whether written or oral), or groups of related
Contracts with the same party or group of parties, that
(i) would constitute a “material contract” (as
such term is defined in Item 601(b)(10) of Regulation S-K
promulgated under the Securities Act (it being understood that to
the extent that a material contract described under Item 601(b)(10)
is duplicative with any of the Contracts set forth in clauses (ii)
through (xiii) of this
Section 4.10(a)
the thresholds
set forth in clauses (ii) through (xiii) of this
Section 4.10(a)
shall control
for disclosure purposes to the extent there is any conflict with
such material contract definition); (ii) relate to borrowed
money or other Indebtedness in excess of $1,000,000 or the
mortgaging, pledging or otherwise placing a Lien on any material
asset or material group of assets of CPT or any of its
Subsidiaries, the foreclosure of which would reasonably be expected
to have, individually or in the aggregate a CPT Material Adverse
Effect; (iii) require the payment or receipt of $1,000,000 or
more per year which are not cancelable by CPT on 30 days’ or
less notice without premium or penalty or other cost of any kind or
nature; (iv) relate to any joint venture, partnership or other
similar agreements to which CPT or any of its Subsidiaries is a
party; (v) relate to lease agreements to which CPT or any of
its Subsidiaries is a party with annual lease payments in excess of
$1,000,000; (vi) relate to standby letter of credits obtained
by CPT or any of its Subsidiaries has in an amount in excess of
$100,000 and Contracts under which CPT or any of its Subsidiaries
has advanced or loaned any other Person or entity an amount in
excess of or guaranteed an amount in excess of $100,000;
(vii) relate to agreements under which CPT has granted any
Person or entity registration rights (including, without
limitation, demand and piggy-back registration rights);
(viii) relate to agreements under which CPT or any of its
Subsidiaries has granted any right of first refusal or similar
right in favor of any third party with respect to any material
portion of CPT’s or any of its Subsidiaries’ properties
or assets; (ix) (A) purport to restrict or prohibit CPT
or any of its Subsidiaries from engaging or competing in any
material line of business or activity, with any Person or in any
geographic area, or (B) would have any such effect on Parent
or any of its Affiliates after the consummation of the CPT Merger
or the Closing Date; (x) (A) grants any exclusive supply
or exclusive distribution agreement or other material exclusive
rights, or (B) grants any “most favored nation”
rights or other preferential pricing terms with respect to any CPT
Product; (xi) relate to any executory obligations relating to
the acquisition or disposition of all or any portion of any
material business of CPT or any of its Subsidiaries (whether by
merger, sale of stock, sale of assets, business combination or
otherwise); (xii) CPT or any of CPT’s Subsidiaries is a
party with any Governmental Entity and which requires the payment
or receipt of $1,000,000 or more per year; and (xiii) to the
extent not included within the foregoing, any Contract that the
termination of which would result in a CPT Material Adverse Effect
(the items described in clauses (i) through (xiii) hereof,
collectively, the “
CPT
Material Contracts
”). CPT has made available to Inuvo
in the CPT Data Room a correct and complete copy of each CPT
Material Contract listed in
Section 4.10(a)
of the CPT
Disclosure Schedule (including all exhibits and schedules
thereto).
(b)
Each of CPT
Material Contracts is valid and binding on CPT or its Subsidiary
party thereto and, to the Knowledge of CPT, each other Person party
thereto, and is in full force and effect and enforceable against
CPT or such CPT Subsidiary, as the case may be, in accordance with
its terms, except as enforcement may be limited by
(i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors’ rights or
by general equity principles and (ii) to the extent
applicable, securities laws limitations on the enforceability of
provisions regarding indemnification in connection with the sale or
issuance of securities. Except to the extent that consents are
required as set forth in
Section 4.4(f)
of the CPT
Disclosure Schedule, no CPT Material Contract will, by its terms,
terminate as a result of the transactions contemplated by this
Agreement or require any consent from or notice to any Person
thereto in order to remain in full force and effect immediately
after the Effective Time.
(c)
Neither CPT nor
any of its Subsidiaries is in material violation, breach or default
under any of CPT Material Contracts, and there has not occurred any
event that, with the lapse of time or the giving of notice or both,
would constitute such a violation, breach or default. CPT has
delivered or made available to Inuvo in the CPT Data Room a list of
those Persons who, to CPT’s Knowledge, have alleged or
claimed that CPT or any of its Subsidiaries, or any sublicensee of
CPT or any of its Subsidiaries, is in material violation, breach or
default under any CPT Material Contract.
Section 4.11 Taxes
. Except as set
forth in
Section
4.11
of the CPT Disclosure Schedule:
(a)
Each of CPT and
its Subsidiaries has (i) duly and timely filed with the
appropriate Governmental Entity all income and other material Tax
Returns required to be filed by it (taking into account any
applicable extensions), and all such Tax Returns are true, correct
and complete in all material respects and prepared in substantial
compliance with all applicable Laws and (ii) timely paid all
Taxes due and owing (whether or not shown due on any Tax Returns).
Neither CPT nor any of its Subsidiaries currently is the
beneficiary of any extension of time within which to file any Tax
Return. No written claim has ever been made by a Governmental
Entity in a jurisdiction where CPT and its Subsidiaries do not file
Tax Returns that CPT or any of its Subsidiaries is or may be
subject to taxation by that jurisdiction that has not been
resolved.
(b)
The unpaid Taxes
of CPT and its Subsidiaries did not, as of the most recent fiscal
month end, materially exceed the reserve for Tax Liabilities
(excluding any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the
face of the balance sheets (rather than in any notes thereto)
contained in the CPT Financial Statements.
(c)
There are no Liens
for Taxes upon any property or asset of CPT or any Subsidiary
thereof, except for statutory Liens for current Taxes that are not
yet due and payable, or for Taxes contested in good faith through
appropriate proceedings and reserved against in accordance with
GAAP.
(d)
No material
deficiencies for Taxes with respect to any of CPT and its
Subsidiaries have been set forth or claimed, proposed, or assessed
in writing by a Governmental Entity that have not been finally
settled or otherwise resolved. There are no pending or, to the
Knowledge of CPT, proposed or threatened audits, investigations,
disputes or claims or other actions for or relating to any
Liability for Taxes with respect to any of CPT and its
Subsidiaries. Neither CPT nor any of its Subsidiaries has waived
any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency,
or has made any request in writing for any such extension or waiver
that remains in effect. There is not currently in effect any power
of attorney authorizing any Person to act on behalf of CPT, or
receive information relating to CPT, with respect to any Tax
matter.
(e)
Neither CPT nor
any of its Subsidiaries has requested or received any ruling from
any Governmental Entity, or signed any binding agreement with any
Governmental Entity that would affect any amount of Tax payable
after the Closing Date.
(f)
Each of CPT and
its Subsidiaries has withheld and paid all Taxes required to have
been withheld and paid in connection with amounts paid or owing to
any employee, independent contractor, creditor, stockholder or
other third party, and all Tax Returns (including without
limitation all IRS Forms W-2 and 1099) required with respect
thereto have been properly completed and timely filed with, and
supplied to, the appropriate parties.
(g)
Except for any
such customary agreements with customers, vendors, lenders, lessors
or the like entered into in the ordinary course of business (each
of which is not specifically entered into to address Taxes),
neither CPT nor any of its Subsidiaries is a party to or bound by
or has any obligation under any Tax sharing, allocation or
indemnification agreement or similar contract or arrangement or any
agreement that obligates it to make any payment computed by
reference to the Taxes, taxable income or taxable losses of any
other Person.
(h)
Except for the
affiliated group of which CPT is the common parent, each of CPT and
its Subsidiaries is not and has never been a member of an
affiliated group of corporations within the meaning of
Section 1504 of the Code or any group that has filed a
combined, consolidated or unitary Tax Return. Neither CPT nor any
of its Subsidiaries is liable for the Taxes of any Person (other
than Persons that are part of the affiliated group of which CPT is
the common parent) (i) under Treasury Regulations
Section 1.1502-6 (or any similar provision of state, local or
foreign law), (ii) as a transferee or successor, or
(iii) otherwise.
(i)
Neither CPT nor
any of its Subsidiaries has constituted either a
“distributing corporation” or a “controlled
corporation” in a distribution of stock intended to qualify
for tax-free treatment under Section 355 of the
Code.
(j)
Neither CPT nor
any of its Subsidiaries has taken any action, agreed to take any
action, failed to take any action, or knows of any fact that would
be reasonably expected to prevent the Exchanges from qualifying as
an “exchange” within the meaning of Section 351 of
the Code.
(k)
Neither CPT nor
any of its Subsidiaries has participated in a “reportable
transaction,” as such term is defined in Treasury Regulations
Section 1.6011-4(b)(1) (other than such transactions that have
been properly reported) or any other transaction requiring
disclosure under analogous provisions of state, local or foreign
Tax law.
(l)
Neither CPT nor
any of its Subsidiaries has been a United States real property
holding corporation within the meaning of Section 897(c)(2) of
the Code at any time during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code.
Section 4.12 Employee Benefit Plans; ERISA
.
(a)
Section 4.12(a)
of the
CPT Disclosure Schedule includes a complete list, as of the date
hereof, of each CPT Benefit Plan. With respect to each of the
written CPT Benefit Plans, CPT has made available to Inuvo true and
complete copies of the following documents to the extent
applicable: (i) the governing plan document, all amendments
thereto and related trust documents, group contracts, insurance
policies or other funding arrangements, and amendments thereto;
(ii) the three most recently filed Forms 5500 annual returns
and all schedules thereto, including any audited financial
statements and auditors’ opinions; (iii) the most recent
favorable determination, opinion or advisory letter issued by the
IRS; (iv) the actuarial report, statement of assets and
liabilities, and annual nondiscrimination testing results for the
three most recently completed plan years; (v) the most recent
summary plan description and any summaries of material
modifications thereto; (vi) a summary of the material terms of
any CPT Benefit Plan that is not in writing; and (vii) any
filings, applications or submissions under the IRS’ Voluntary
Correction Program or the Department of Labor’s Delinquent
Filer Voluntary Compliance Program or the Voluntary Fiduciary
Correction Program.
(b)
To the Knowledge
of CPT, CPT and its Subsidiaries have operated and administered
each of the CPT Benefit Plans in accordance with their terms and
all the provisions of Laws and regulations applicable to the CPT
Benefit Plans. All contributions, reserves or premium payments
required to be made or accrued as of the date hereof with respect
to the CPT Benefit Plans have been timely paid or accrued by CPT
and its Subsidiaries as applicable. To the Knowledge of CPT, CPT
and its Subsidiaries have satisfied all reporting and disclosure
requirements under the Code and ERISA that are applicable to the
CPT Benefit Plans. To the Knowledge of CPT, no event or condition
exists which would reasonably be expected to subject CPT or any of
its Subsidiaries to Liability in connection with the CPT Benefit
Plans or any plan, program, or policy sponsored or contributed to
by any of their respective ERISA Affiliates other than the
provision of benefits thereunder in the ordinary course. With
respect to each applicable CPT Benefit Plan, (i) there are no
pending or, to the Knowledge of CPT, threatened actions which have
been asserted or instituted and which would reasonably be expected
to result in any Liability of CPT or any of its Subsidiaries (other
than routine claims for benefits payable in the ordinary course);
(ii) there are no audits, inquiries or Proceedings pending or,
to the Knowledge of CPT, threatened by any governmental authority;
and (iii) there has been no breach of fiduciary duty
(including violations under Part 4 of Subtitle B of Title I of
ERISA) which has resulted or would reasonably be expected to result
in material Liability to CPT, any CPT Subsidiary, or any of their
respective employees.
(c)
In no event will
the execution and delivery of this Agreement or any other related
agreement, the consummation of the CPT Merger or the transactions
contemplated hereby or thereby, or Required CPT Stockholder Vote
(either alone or in conjunction with any other event, such as
termination of employment) result in, cause the accelerated
vesting, exercisability, funding or delivery of, or increase the
amount or value of, any material payment or benefit to any current
or former employee, officer or director of CPT or any of its
Subsidiaries or any beneficiary or dependent thereof or result in a
limitation on the right of CPT or any of its Subsidiaries to amend,
merge, terminate or receive a reversion of assets from any CPT
Benefit Plan or related trust.
(d)
Section 4.12(d)
of the
CPT Disclosure Schedule identifies each CPT Benefit Plan that is
intended to be a “qualified plan” within the meaning of
Section 401(a) of the Code or is intended to be similarly
qualified or registered under applicable foreign law (collectively,
the “
CPT Qualified
Plans
”). Each CPT Qualified Plan that is intended to
be tax-qualified under Section 401(a) of the Code has received
a favorable determination or opinion letter from the IRS that it is
entitled to rely upon, and its accompanying trust is exempt from
taxation under Section 501(a) of the Code, and, to the
Knowledge of CPT, no fact or event has occurred since the date of
such letter that would reasonably be expected to jeopardize the
tax-qualified status of any such CPT Qualified Plan or the
tax-exempt status of its accompanying trust.
(e)
Except as otherwise
provided in
Section
4.12(e)
of the CPT Disclosure Schedule, no CPT Benefit Plan
provides health benefits (whether or not insured) with respect to
employees or former employees (or any of their beneficiaries) of
CPT or any of its Subsidiaries after retirement or other
termination of service (other than coverage or benefits
(A) required to be provided under Part 6 of Subtitle B of
Title I of ERISA or any other similar applicable Law or
(B) the full cost of which is borne by the employee or former
employee (or any of their beneficiaries)).
(f)
Neither CPT nor
any of its Subsidiaries or any of their respective ERISA Affiliates
sponsor, contribute to or have any Liabilities with respect to any
CPT Benefit Plan that: (i) is subject to Title IV or
Section 302 of ERISA or Section 412, 430, 431 or 432 of
the Code; (ii) is a Multiemployer Plan; or (iii) is a
multiple employer plan that is described in Section 413 of the
Code. No “reportable event,” as such term is defined in
ERISA Section 4043(c), has occurred or is continuing with
respect to any CPT Benefit Plan. No CPT Benefit Plan that is or was
subject to Title IV of ERISA has been terminated and no proceeding
has been initiated to terminate any such plan. Neither CPT nor any
of its Subsidiaries or any of their respective ERISA Affiliates has
incurred or reasonably expects to incur, any Liability to the PBGC
with respect to any CPT Benefit Plan, except for required premium
payments, which payments have been timely made when
due.
(g)
Neither CPT nor
any of its Subsidiaries or any of their respective ERISA Affiliates
has incurred or expects to incur any “withdrawal
liability” (as defined in ERISA Section 4201) under or
with respect to any CPT Benefit Plan that is a Multiemployer
Plan.
(h)
No CPT Benefit
Plan is maintained outside the jurisdiction of the United States,
or covers any employee, contractor or other service provider
residing or working outside the United States.
(i)
There is no
Contract, agreement, plan or arrangement to which CPT or any
Subsidiary of CPT is a party, including but not limited to the
provisions of this Agreement, that, individually or collectively,
would give rise to the payment of any amount that would not be
deductible pursuant to Section 162(m) of the
Code.
(j)
No payment
pursuant to any CPT Benefit Plan or CPT Benefit Arrangement between
CPT or a Subsidiary and any “service provider” (as such
term is defined in Section 409A of the Code and the United
States Treasury Regulations and IRS guidance thereunder),
including, without limitation, the grant, vesting or exercise of
any equity option, would subject any Person to a tax pursuant to
Section 409A of the Code, whether pursuant to the consummation
of the Merger, any other transaction contemplated by this Agreement
or otherwise.
(k)
Each CPT Benefit
Plan, CPT Benefit Arrangement, or other Contract, plan, program,
agreement, or arrangement that is a “nonqualified deferred
compensation plan” (within the meaning of
Section 409A(d)(1) of the Code) has been operated in
compliance with Section 409A of the Code, its Treasury
regulations, and any applicable administrative guidance relating
thereto; and no additional tax under Section 409A(a)(1)(B) of
the Code has been or is reasonably expected to be incurred by a
participant in any such CPT Benefit Plan, CPT Benefit Arrangement,
or other Contract, plan, program, agreement, or arrangement.
Neither CPT nor any ERISA Affiliate is a party to, or otherwise
obligated under, any Contract, agreement, plan or arrangement that
provides for the gross-up of taxes imposed by
Section 409A(a)(1)(B) of the Code.
(l)
No amount that
could be received (whether in cash or property or the vesting of
property), as a result of the execution and delivery of this
Agreement or any other related agreement, the consummation of the
transactions contemplated hereby or thereby, or the Required CPT
Stockholder Vote of the CPT Merger (either alone or in conjunction
with any other event, such as termination of employment), by any
employee, officer or director of CPT or any Subsidiary of CPT who
is a “disqualified individual” (as such term is defined
in Treasury Regulation Section 1.280G-1) under any CPT Benefit
Plan, CPT Benefit Arrangement or otherwise could be characterized
as a “parachute payment” (as defined in Section
280G(b)(2) of the Code). CPT has made available to Inuvo all
necessary information to determine, as of the date hereof, the
estimated maximum amount that could be paid to each disqualified
individual in connection with the transactions contemplated by this
Agreement under all employment, severance and termination
agreements, other compensation arrangements, CPT Benefit
Arrangements and CPT Benefit Plans currently in effect, assuming
that the individual’s employment with CPT is terminated
immediately after the Effective Time. CPT has made available to
Inuvo in the CPT Data Room (i) the grant dates, exercise prices and
vesting schedules applicable to each CPT Option granted to the
individual; (ii) the “base amount” (as defined in
Section 280G(b)(e) of the Code) for each such individual as of the
date of this Agreement; and (iii) the maximum additional amount
that CPT has an obligation to pay to each disqualified individual
to reimburse the disqualified individual for any excise tax imposed
under Section 4999 of the Code with respect to the disqualified
individual’s excess parachute payments (including any taxes,
interest or penalties imposed with respect to the excise
tax).
Section 4.13 Labor and Other Employment Matters
.
(a)
Except as otherwise
provided in
Section
4.13
of the CPT Disclosure Schedule, as of the date hereof,
(i) no work stoppage, slowdown, lockout, labor strike,
grievances, arbitration or other material labor dispute against CPT
or any of its Subsidiaries by employees is pending or, to the
Knowledge of CPT, threatened; (ii) neither CPT nor any of its
Subsidiaries is delinquent in payments to any of its employees for
any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it or amounts required
to be reimbursed to such employees; (iii) to the Knowledge of
CPT, for the past four (4) years, CPT and each of its Subsidiaries
have been in material compliance with all applicable Laws
respecting labor, employment, fair employment practices, terms and
conditions of employment, immigration, workers’ compensation,
occupational safety, plant closings, layoffs, reductions in force
and wage and hours; (iv) except as otherwise provided in
Section 4.13
of
the CPT Disclosure Schedule, CPT and each of its Subsidiaries has
withheld all amounts required by Law or by agreement to be withheld
from the wages, salaries, and other payments to employees and is
not liable for any arrears of wages or any Taxes or any penalty for
failure to comply with any of the foregoing; (v) neither CPT
nor any of its Subsidiaries is liable for any material payment to
any trust or other fund or to any Governmental Entity, with respect
to unemployment compensation benefits, social security or other
benefits or obligations for employees (other than routine payments
to be made in the ordinary course of business consistent with past
practice); (vi) other than as made available to Inuvo in the CPT
Data Room, there are no pending claims against CPT or any of its
Subsidiaries under any workers’ compensation plan or policy
or for long term disability; (vii) there are no controversies
pending or, to the Knowledge of CPT, threatened (including
threatened lawsuits or claims), between CPT or any of its
Subsidiaries and any of their respective current or former
employees, which controversies have or would reasonably be expected
to result in any Proceeding before the National Labor Relations
Board, the Equal Employment Opportunity Commission, the Department
of Fair Employment and Housing, Labor Commissioner, the Department
of Labor, OSHA, or any other Governmental Entity; (viii) all
employees of CPT and its Subsidiaries are employed on an at-will
basis, and their respective employment can be terminated at any
time, with or without notice, for any lawful reason or no reason at
all; and (ix) CPT and its Subsidies have not conducted any
layoffs or reductions in force within six (6) months of the date
hereof. As of the date hereof, to the Knowledge of CPT, no
employees of CPT or any of its Subsidiaries are in violation of any
term of any employment or other Contract, including any
non-disclosure agreement, noncompetition agreement, or any
restrictive covenant to a former employer relating to the right of
any such employee to be employed by CPT or any of its Subsidiaries
because of the nature of the business conducted or presently
proposed to be conducted by CPT or such Subsidiary or to the use of
trade secrets or proprietary information of others. As of the date
hereof, no exempt employee of CPT or any of its Subsidiaries has
given notice in writing to CPT or any of its Subsidiaries that any
such employee intends to terminate his or her employment with CPT
or any of its Subsidiaries.
(b)
Except as set forth
in
Section 4.13(b)
of the CPT Disclosure Schedule, since January 1, 2016, neither CPT
nor any of its Subsidiaries is a party to or otherwise bound by any
collective bargaining Contract with a labor union or labor
organization, nor is any such Contract presently being negotiated.
Except as set forth in
Section 4.13(b)
of the CPT
Disclosure Schedule, since January 1, 2016 to the date hereof,
there has not been any campaign to organize any of the employees of
CPT or any of its Subsidiaries for the purposes of forming a labor
union or labor organization or selecting a labor union or labor
organization as a collective bargaining representative and, to the
Knowledge of CPT, there are no campaigns or other efforts being
conducted to organize employees of CPT or any of its Subsidiaries
for the purposes of forming a labor union or labor organization or
selecting a labor union or labor organization as a collective
bargaining representative.
(c)
CPT has identified
in
Section 4.13(c)
of the CPT Disclosure Schedule and has made available to Inuvo in
the CPT Data Room true and complete copies of (i) all
severance and employment agreements with directors, officers or
employees of or consultants to CPT or any of its Subsidiaries;
(ii) all severance programs and policies of each of CPT and
each of its Subsidiaries with or relating to its employees; and
(iii) all plans, programs, agreements and other arrangements
of CPT and each of its Subsidiaries with or relating to its
directors, officers, employees or consultants which contain change
in control provisions. In no event will the execution and delivery
of this Agreement or any other related agreement, the consummation
of the transactions contemplated hereby or thereby, or Required CPT
Stockholder Vote (either alone or in conjunction with any other
event, such as termination of employment) (x) result in any
payment (including, without limitation, severance, unemployment
compensation, parachute or otherwise) becoming due to any director
or any employee of CPT or any of its Subsidiaries or Affiliates
from CPT or any of its Subsidiaries or Affiliates under any CPT
Benefit Plan or otherwise, (y) significantly increase any
benefits otherwise payable under any CPT Benefit Plan or otherwise,
or (z) result in any acceleration of the time of payment or
vesting of any benefits, except in connection with a termination of
employment.
(d)
CPT has made
available to Inuvo, as of the date hereof, a list of the names of
all current directors, officers, employees and consultants
currently employed or engaged by CPT and its Subsidiaries and who
have received payment by way of compensation from CPT or its
Subsidiaries in excess of $100,000 during the current fiscal year,
together with their respective salaries or wages, other
compensation, dates of employment or service with CPT or its
Subsidiaries, seniority, exemption classification, any union
membership, and current positions and identifies all written
agreements between CPT or its Subsidiaries and such individuals
(other than any of the following agreements in CPT or its
Subsidiaries’ standard form: (i) offer letters for
employment; (ii) proprietary rights assignment agreements;
(iii) stock option agreements; or (iv) restricted stock
purchase agreements) concerning their employment, consulting or
independent contractor relationship with CPT.
Section
4.14
Environmental Matters
.
CPT and its Subsidiaries (i) are in compliance with all
Environmental Laws, (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where, in each of the foregoing clauses
(i), (ii) and (iii), the failure to so comply would be reasonably
expected to have, individually or in the aggregate, a CPT Material
Adverse Effect.
Section 4.15 Intellectual
Property
.
(a)
Section 4.15(a)
of the
CPT Disclosure Schedule sets forth a true and complete list as of
the date hereof of all (i) issued patents and patent
applications; (ii) CPT Registered Brand Names;
(iii) material CPT Unregistered Brand Names and applications
therefor; and (iv) material domain name registrations, in each
case set forth in subsections (i) through (iv) above, included in
CPT Owned Intellectual Property as of the date hereof. All the
patents, patent applications, CPT Registered Brand Names, copyright
registrations, copyright applications, and applications comprising
CPT Unregistered Brand Names are subsisting and all the necessary
fees and costs have been paid.
(b)
Section 4.15(b)
of the
CPT Disclosure Schedule sets forth a complete and accurate list of
all Contracts by which CPT or any of its Subsidiaries has been
granted or has granted to others any license, covenant not to sue
or other immunity to or under Intellectual Property that is
material to the conduct of the business of CPT or any of its
Subsidiaries, as conducted as of the date hereof (collectively,
“
CPT Material
Licenses
”);
provided, however
, that
Section 4.15(b)
of the CPT
Disclosure Schedule does not disclose licenses of computer software
which computer software has not been significantly modified or
customized and that is available commercially off-the-shelf. CPT
has made available to Inuvo in the CPT Data Room a true and
complete copy of each CPT Material License.
(c)
Neither
(i) the use of CPT Owned Intellectual Property and
Intellectual Property licensed to CPT and/or its Subsidiaries under
CPT Material Licenses in connection with the operation of the
business of CPT or any of its Subsidiaries as conducted as of the
date hereof, nor (ii) the manufacture, use, offer for sale,
and sale of CPT Products (as such products exist as of the date
hereof) to the Knowledge of CPT, infringe or misappropriate or
otherwise violate any valid Intellectual Property rights of any
Person, and CPT is unaware of any facts that would form a
reasonable basis for a claim of any such infringement,
misappropriation or violation. No Proceeding is pending or, to the
Knowledge of CPT, threatened against CPT or any of its Subsidiaries
alleging any of the foregoing.
(d)
CPT or a Subsidiary
of CPT is the exclusive owner of all right, title and interest in
and to each item of Intellectual Property purported to be CPT Owned
Intellectual Property, including without limitation, the items
listed on
Section
4.15(a)
of the CPT Disclosure Schedule. CPT or a Subsidiary
of CPT is entitled to use CPT Owned Intellectual Property and
Intellectual Property licensed to CPT and/or its Subsidiaries under
CPT Material Licenses in the ordinary course of its business
consistent with past practice, subject only to any applicable terms
of CPT Material Licenses.
(e)
Other than CPT
Owned Intellectual Property and Intellectual Property licensed to
CPT and/or its Subsidiaries under CPT Material Licenses, there are
no items of Intellectual Property that are necessary to the conduct
of the business of CPT or any of its Subsidiaries as conducted as
of the date hereof, with the exception of any licenses of computer
software which computer software has not been significantly
modified or customized and that is available commercially
off-the-shelf. CPT Owned Intellectual Property is valid and
enforceable, and CPT has the right to enforce such CPT Owned
Intellectual Property that has not been licensed to another Person
on an exclusive basis, and such Intellectual Property has not been
adjudged by a court of competent jurisdiction to be invalid or
unenforceable (except for challenges and adjudications that may be
received in the ordinary course of the prosecution of Intellectual
Property applications in Intellectual Property offices) in whole or
part.
(f)
No legal
Proceedings are pending or, to the Knowledge of CPT, threatened
against CPT or any of its Subsidiaries (i) based upon,
challenging or seeking to deny or restrict the use by CPT or any of
its Subsidiaries of any of the Intellectual Property licensed to
CPT and/or its Subsidiaries under CPT Material Licenses, or
(ii) alleging that CPT Material Licenses conflict with the
terms of any other Person’s license or other
agreement.
(g)
To the Knowledge
of CPT, there are no infringements, misappropriations or violations
by others of any of CPT Owned Intellectual Property and CPT is
unaware of any facts which would form a reasonable basis for a
claim of any such infringement, misappropriation or
violation.
(h)
CPT and its
Subsidiaries have taken commercially reasonable measures (but at
least commensurate with industry standards) to maintain their
material trade secrets in confidence.
(i)
To the Knowledge
of CPT (i) there has been no misappropriation of any trade
secrets of CPT or any of its Subsidiaries by any Person, and
(ii) no employee, independent contractor or agent of CPT or
any of its Subsidiaries has misappropriated any trade secrets of
any other Person in the course of such performance as an employee,
independent contractor or agent.
(j)
The execution,
delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby, will not result in or give
rise to (i) any right of termination or other right to impair
or limit any of CPT’s rights to own or license any of CPT
Owned Intellectual Property, (ii) the inability (for any
period of time) of Parent to succeed to the rights and perform the
obligations of CPT and any of its applicable Subsidiaries with
respect to CPT Owned Intellectual Property, pursuant to the terms
of this Agreement, or (iii) the right to market CPT Products
as presently marketed.
Section 4.16 Real Property
.
(a)
CPT owns no real
property.
(b)
Section 4.16(b)
of the
CPT Disclosure Schedule sets forth a complete list of all material
real property leased by CPT or any of its Subsidiaries as of the
date hereof (“
CPT Material
Leased Real Property
”). A copy of the lease, including
all amendments, extensions, renewals, guaranties and other
agreements for each CPT Material Leased Real Property (the
“
CPT Leases
”)
has been made available to Inuvo in the CPT Data Room. With respect
to each of the CPT Leases: (i) such CPT Lease is legal, valid,
and binding on CPT or its Subsidiary party thereto, and, to the
Knowledge of CPT, each other Person party thereto, and is
enforceable and in full force and effect, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at law);
(ii) except as set forth in
Section 4.16(b)
of the CPT
Disclosure Schedule, the transactions contemplated by this
Agreement do not require the consent of any other party to such CPT
Lease, will not result in a breach of or default under such CPT
Lease, or otherwise cause such CPT Lease to cease to be legal,
valid, binding, enforceable and in full force and effect on
identical terms following the Closing; (iii) neither CPT nor
any of its Subsidiaries, as the case may be, nor any other party to
CPT Lease is in material breach or default under such CPT Lease,
and no event has occurred or failed to occur or circumstance exists
which, with the delivery of notice, the passage of time or both,
would constitute such a breach or default, or permit the
termination, modification or acceleration of rent under such CPT
Lease; (iv) the other party to such CPT Lease is not an
Affiliate of, and otherwise does not have any economic interest in,
CPT or any of its Subsidiaries; (v) neither CPT nor any of its
Subsidiaries, as the case may be, has subleased, licensed or
otherwise granted any Person the right to use or occupy such CPT
Material Leased Real Property or any portion thereof; and
(vi) neither CPT nor any of its Subsidiaries, as the case may
be, has collaterally assigned or granted any other security
interest in such CPT Lease or any interest therein.
(c)
CPT and each of
its Subsidiaries has good and valid leasehold interest to all CPT
Material Leased Real Property, free and clear of all Liens of any
nature whatsoever, except (i) Liens for current Taxes,
payments of which are not yet delinquent or are being disputed in
good faith, (ii) liens in respect of pledges or deposits under
workers’ compensation laws or similar legislation, or
(iii) liens imposed by law and incurred in the ordinary course
of business for obligations not past due, and liens, encumbrances
and defects in title, that in each case do not materially detract
from the value or use of the property subject thereto.
(d)
Except as set forth
in
Section 4.16(d)
of the CPT Disclosure Schedule, the present use of the land,
buildings, structures and improvements on CPT Material Leased Real
Property are, in all material respects, in conformity with all
Laws, including all applicable zoning Laws, ordinances and
regulations and with all registered deeds or other restrictions of
record, and neither CPT nor any of its Subsidiaries, as the case
may be, has received any written notice of material violation
thereof. Neither CPT nor any of its Subsidiaries, as the case may
be, has received any written notice of any material conflict or
dispute with any regulatory authority or other Person relating to
any CPT Material Leased Real Property or the activities thereon,
other than where there is no current or reasonably likely material
interference with the operations CPT Material Leased Real Property
as presently conducted (or as would be conducted at full
capacity).
(e)
Neither CPT nor
any of its Subsidiaries, as the case may be, has received any
notice from any insurance company of any material defects or
inadequacies in CPT Material Leased Real Property or any part
thereof, which would materially and adversely affect the
insurability of the same or of any termination or threatened (in
writing) termination of any policy of insurance relating to any
such CPT Material Leased Real Property.
Section
4.17
Insurance
.
Section 4.17
of the
CPT Disclosure Schedule contains an accurate and complete list of
all policies and programs of insurance providing coverage for CPT
together with its Subsidiaries, including the name of the insurer,
type of insurance or coverage, and the amount of coverage and any
retention or deductible of CPT or any Subsidiary. All premiums due
and payable under all such policies and bonds have been paid and
CPT and its Subsidiaries are otherwise in compliance in all
material respects with the terms of such policies and bonds. Except
as set forth in
Section
4.17
of the CPT Disclosure Schedule, neither CPT nor any of
its Subsidiaries maintains any material self-insurance or
co-insurance programs. Neither CPT nor any of its Subsidiaries has
any material disputed claim or claims with any insurance provider
relating to any claim for insurance coverage under any policy or
insurance maintained by CPT or any of its Subsidiaries. No notice
of cancellation, termination or reduction in coverage has been
received by CPT or any Subsidiary with respect to any policy listed
in
Section 4.17
of
the CPT Disclosure Schedule.
Section
4.18
Assets
.
Except as disclosed in
Section 4.18
of the CPT
Disclosure Schedule, CPT and its Subsidiaries have good and valid
title to, or, in the case of leased properties and assets, valid
leasehold interests in, all of their properties and assets, real
and personal, used or held for use in their businesses located on
their premises or shown on the consolidated balance sheet of CPT
and its subsidiaries as of the CPT Balance Sheet Date or acquired
thereafter, free and clear of any Liens. Except as disclosed in
Section 4.18
of the
CPT Disclosure Schedule, CPT’s and each of its
Subsidiary’s buildings, equipment and other tangible assets
are in good operating condition (normal wear and tear excepted) and
are fit for use in the ordinary course of their respective
businesses, consistent with past use and practice. Except as
disclosed in
Section
4.18
of the CPT Disclosure Schedule, the furniture,
fixtures, equipment, vehicles and other items of tangible personal
property of CPT and its Subsidiaries are structurally sound, are in
good operating condition and repair, and are adequate for the uses
to which they are being put, consistent with past use and practice.
Except as disclosed in
Section 4.18
of the CPT
Disclosure Schedule, the furniture, fixtures, equipment, vehicles
and other items of tangible personal property currently owned or
leased by CPT or its Subsidiaries, together with all other
properties and assets of CPT and its Subsidiaries, are sufficient
for the conduct of CPT’s business as of the date hereof in
substantially the same manner as conducted prior to the date hereof
and constitute all of the rights, property and assets necessary to
conduct the business of CPT as currently conducted as of the date
hereof.
Section
4.19
Business
Relationships
. CPT has made
available to Inuvo in the CPT Data Room the top ten (10) suppliers
(based on current fiscal year expenditures) of products or services
and the top ten (10) customers (based on current fiscal year
revenues) of CPT and its Subsidiaries (on a consolidated basis).
Since the CPT Balance Sheet Date, to the Knowledge of CPT, there
has not been any material adverse change in the business
relationship of CPT or any of its Subsidiaries with any such
customer or supplier or any change or development that is
reasonably likely to give rise to any such material adverse change,
and neither CPT nor any of its Subsidiaries has received any
written or oral communication or notice from any such customer or
supplier to the effect that, or otherwise has Knowledge that, any
such customer or supplier (a) has changed, modified, amended
or reduced, or is reasonably likely to change, modify, amend or
reduce, its business relationship with CPT or any of its
Subsidiaries in a manner that is, or is reasonably likely to be,
materially adverse to CPT or any of its Subsidiaries, or
(b) will fail to perform, or is reasonably likely to fail to
perform, its obligations under any Contract with CPT or any of its
Subsidiaries in any manner that is, or is reasonably likely to be,
materially adverse to business and operations of CPT or any of its
Subsidiaries.
Section
4.20
Related Party Transactions
.
(a)
Except as disclosed
in
Section 4.20(a)
of the CPT Disclosure Schedule, no director, officer, partner,
“affiliate” or “associate” (as such terms
are defined in Rule 12b-2 under the Exchange Act) of CPT or any of
its Subsidiaries (or, with respect to clause (a) of this
sentence, to the Knowledge of CPT, its employees) (collectively,
“
CPT Affiliated
Persons
”): (i) has borrowed any monies from or
has outstanding any Indebtedness or other similar obligations to
CPT or any of its Subsidiaries; (ii) owns any direct or
indirect interest of any kind in, or is a director, officer,
employee, partner, affiliate or associate of, or consultant or
lender to, or borrower from, or has the right to participate in the
management, operations or profits of, any person or entity which is
(x) a competitor, supplier, customer, distributor, lessor,
tenant, creditor or debtor of CPT or any of its Subsidiaries,
(y) engaged in a business related to the business of CPT or
any of its Subsidiaries, (iii) participating in any
transaction to which CPT or any of its Subsidiaries is a party,
(iv) otherwise a party to any Contract, arrangement or
understanding with CPT or any of its Subsidiaries, or (v) to the
Knowledge of CPT, no CPT Affiliated Person of has any claim against
CPT or any of its Subsidiaries, other than claims arising in the
ordinary course of business for wages owed and employment benefits
accrued.
(b)
Except as disclosed
in
Section 4.20(a)
of the CPT Disclosure Schedule, no CPT Affiliated Person is a party
to any Contract with any customer or supplier of CPT or any
Subsidiary that affects in any material manner the business,
financial condition or results of operation of CPT.
Section
4.21
Certain Business Practices
.
(a)
Neither CPT nor
its Subsidiaries, nor any of their directors, managers, officers,
or to the Knowledge of CPT their employees, agents or any other
person acting for or on behalf of CPT or any of its Subsidiaries,
directly or indirectly, (i) violated the Foreign Corrupt
Practices Act of 1977, as amended, or violated any similar Law; or
(ii) made any unlawful bribe, unlawful kickback or other
unlawful payment to any person, private or public, regardless of
form, whether in money, property or services, to obtain favorable
treatment in securing business to obtain special concessions for
CPT or any of its Subsidiaries. Neither CPT nor its Subsidiaries,
nor, any of their directors, officers, or, to the Knowledge of CPT
their employees, agents, or any other person acting for or on
behalf of CPT or its Subsidiaries is the subject of any current,
pending or threatened investigation, inquiry or enforcement
proceedings for violations of the Foreign Corrupt Practices Act of
1977, as amended, or any similar Law in any country in which CPT or
its Subsidiaries does business.
(b)
None of CPT or any
Subsidiary of CPT nor, to the Knowledge of CPT, any director,
officer, employee, auditor, accountant or representative of CPT or
any Subsidiary of CPT, has received or otherwise had or obtained
knowledge of any material complaint, allegation, assertion or
claim, whether written or oral, regarding accounting, internal
accounting controls or auditing practices, procedures,
methodologies or methods of CPT or any Subsidiary of CPT or any
material complaint, allegation, assertion or claim from employees
of CPT or any Subsidiary of CPT regarding questionable accounting
or auditing matters with respect to CPT or any Subsidiary of CPT,
and to the Knowledge of CPT, no attorney representing CPT or any
Subsidiary CPT, whether or not employed by CPT or any Subsidiary of
CPT, has reported evidence of any material violation of state or
federal banking or securities Laws, breach or violation of
fiduciary duty or similar violation, by CPT, any Subsidiary of CPT
or any of their respective officers, directors, managers, employees
or agents to the Board of Directors of CPT or any committee
thereof, or to the general counsel or chief executive officer of
CPT.
Section
4.22
Brokers
and Finders
. Except as set
forth in
Section
4.22
of the CPT Disclosure Schedule, none of CPT or its
Subsidiaries has entered into any Contract, arrangement or
understanding with any Person or firm which may result in the
obligation of CPT or any of its Subsidiaries to pay any investment
banking fees, finder’s fees, or brokerage commissions in
connection with the transactions contemplated hereby.
Section
4.23
Takeover
Laws
. CPT has taken all
action necessary to exempt this Agreement and the transactions
contemplated hereby, including the CPT Merger, from the provisions
of Section 203 of the DGCL. No other anti-takeover,
“fair price”, “moratorium”, “control
share acquisition”, “business combination” or
other similar statute or regulation applies or purports to apply to
this Agreement or the transactions contemplated hereby. CPT does
not have any stockholder rights plan or “poison pill”
in effect, including without limitation any agreement with a
third-party trust or fiduciary entity with respect
thereto.
Section
4.24
Books
and Records
. The minute books
and stock record books of CPT and each of its
Subsidiaries, all of which have been made available to Inuvo, are
materially complete and correct. The minute books of CPT and each
of its Subsidiaries contain accurate and complete records of all
meetings, and actions taken by written consent of,
the stockholders, members, the board of directors, managers
and any committees of the board of directors of CPT and its
Subsidiaries, as applicable, and no meeting, or action taken by
written consent, of any such stockholders, members, board of
directors, managers or committee has been held for which minutes
have not been prepared and are not contained in such minute books.
At the Closing, all of those books and records will be in the
possession of CPT. The accounting, financial reporting, and
business books and records of CPT and each of its Subsidiaries
accurately and fairly reflect in all material respects the business
and condition of CPT and its Subsidiaries and the transactions and
the assets and liabilities of CPT and its Subsidiaries with respect
thereto.
Section
4.25
Parent
Common Stock
. At the Closing,
Parent shall have sufficient authorized but unissued shares of
Parent Common Stock to consummate the Mergers.
Section
4.26
Information
Supplied
. The information
supplied or to be supplied by CPT, Parent, CPT Merger Sub and Inuvo
Merger Sub in writing expressly for inclusion in the Form S-4 will
not, at the time the Form S-4 is declared effective by the SEC,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they are made, not misleading, except that no
representation or warranty is made by CPT, Parent, CPT Merger Sub
or Inuvo Merger Sub with respect to statements made therein based
on information supplied by Inuvo in writing expressly for inclusion
therein. The information supplied by CPT, Parent, CPT Merger Sub
and Inuvo Merger Sub in writing expressly for inclusion in the
Joint Proxy Statement/Prospectus will not, at the time the Joint
Proxy Statement/Prospectus is first mailed to CPT stockholders and
at the time of the CPT Stockholders’ Meeting, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they are made, not misleading, except that no representation or
warranty is made by CPT, Parent, CPT Merger Sub and Inuvo Merger
Sub with respect to statements made therein based on information
supplied by Inuvo in writing expressly for inclusion
therein.
Section
4.27
Financing
.
(a)
Parent has
delivered to Inuvo true, correct and complete copies of
(i) the executed comfort letters, dated as of the date hereof
(the “
Financing Comfort
Letters
”) from certain intermediaries pursuant to
which, and subject to the terms and conditions thereof, the
intermediaries will assist in obtaining the Financing.
(b)
As of the date
hereof, the Financing Comfort Letters are in full force and effect
and have not been withdrawn, terminated or rescinded in any respect
or otherwise amended, supplemented or modified in any respect, and,
to the Knowledge of Parent and the Knowledge of CPT, no such
withdrawal, termination, rescission, amendment, supplement or
modification is presently contemplated (other than amendments,
modifications or terminations that are permitted by
Section 6.17
). Except for the
Financing Comfort Letters in the form delivered pursuant to
Section 4.27(a)
and any customary engagement letters and non-disclosure agreements
that do not impact the conditionality or amount of the Financing,
as of the date hereof, there are no side letters or other
agreements, contracts or arrangements relating to the Financing or
the Financing Comfort Letters, including any that could affect the
conditionality or availability of the Financing, to which Parent,
CPT, Inuvo Merger Sub, the intermediaries or any of their
respective Affiliates is a party. Assuming the accuracy of the
representations and warranties in
Article IV
in all material
respects, the compliance and performance by Inuvo of its covenants
and agreements set forth in this Agreement in all material
respects, to the Knowledge of Parent and the Knowledge of CPT, as
of the date of this Agreement, no event has occurred which, with or
without notice, lapse of time or both, would or would reasonably be
expected to (y) result in a failure to consummate the
Financing, or (z) result in any portion of the Financing
contemplated thereby to be unavailable. There are no conditions
precedent or other contingencies related to the Financing that, to
the Knowledge of CPT, cannot be fulfilled. Assuming the
satisfaction of the conditions to CPT’s and Parent’s
obligation to consummate the Merger (other than those conditions
that by their nature are to be satisfied at the Closing), as of the
date hereof, neither Parent, CPT, nor Inuvo Merger Sub has any
reason to believe that any of the conditions to the Financing will
not be satisfied or that the full amount of the Financing will not
be available to Parent and Inuvo Merger Sub on the date of the
Closing.
Section
4.28
No
Additional Representations
. Except for the
representations and warranties contained in this
Article IV
, Inuvo acknowledges
that neither Parent, CPT, CPT Merger Sub, Inuvo Merger Sub nor any
other Person on behalf of Parent, CPT, CPT Merger Sub or Inuvo
Merger Sub makes any other express or implied representation or
warranty with respect to CPT or any of its Subsidiaries or with
respect to any other information provided to Inuvo, including any
information, documents, projections, forecasts or other material
made available to Inuvo or any Inuvo Representative in the CPT Data
Room (other than information contained in the CPT Data Room that is
specifically referred to in any of the representations and
warranties contained in this
Article IV
) or management
presentations in expectation of the transactions contemplated by
this Agreement, including with respect to the completeness,
accuracy or currency of any such information. CPT disclaims any
other representations or warranties, whether made by CPT or any of
its Subsidiaries or any other Person.
ARTICLE
V
REPRESENTATIONS AND WARRANTIES OF INUVO
Except
for the disclosures expressly set forth (i) in the Inuvo SEC
Documents (including any documents, instruments or Contracts
included as exhibits to the Inuvo SEC Documents), or (ii) in
the correspondingly numbered Section of the disclosure letter of
Inuvo delivered to Parent and CPT, concurrently with the
parties’ execution of this Agreement (the “
Inuvo Disclosure Schedule
”), Inuvo
represents and warrants to Parent, CPT, CPT Merger Sub and Inuvo
Merger Sub as follows:
Section
5.1
Organization and Qualification
.
(a)
Inuvo is a
corporation duly organized and validly existing under the laws of
the State of Nevada and has the requisite corporate power and
authority to own, lease, license and operate its assets and
properties and to carry on its business as it is now being
conducted. Inuvo is qualified to transact business and, where
applicable, is in good standing in each jurisdiction in which the
properties owned, leased, licensed or operated by it or the nature
of the business conducted by it makes such qualification necessary,
except where failure to be so qualified or in good standing would
not, individually or in the aggregate, reasonable be expected to
have a Inuvo Material Adverse Effect.
Section 5.1(a)
of the Inuvo
Disclosure Schedule lists each jurisdiction in which Inuvo is
qualified to do business as a foreign entity.
(b)
Complete, true and
correct copies of Inuvo’s articles of incorporation, as
amended (the “
Inuvo Articles
of Incorporation
”), and bylaws, as amended (the
“
Inuvo
Bylaws
”), have been publicly filed with the SEC. The
Inuvo Articles of Incorporation and Bylaws are in full force and
effect. Inuvo is not in violation of any provision of the Inuvo
Articles of Incorporation or the Inuvo Bylaws. Inuvo has made
available to CPT in the Inuvo Data Room copies of the charters of
each committee of Inuvo’s Board of Directors and any code of
conduct or similar policy adopted by Inuvo.
Section
5.2
Capitalization
.
(a)
The authorized
capital stock of Inuvo consists of 40,000,000 shares of Inuvo
Common Stock and 500,000 shares of Inuvo Preferred Stock, $0.001
par value per share. As of
the Execution Date,
(i)
32,435,446
shares of Inuvo
Common Stock were issued and outstanding, (ii) no shares of
Inuvo Preferred Stock were issued and outstanding, (iii)
376,527
shares
of Inuvo Common Stock were held in treasury, (iv)
3,573,183
shares of Inuvo
Common Stock were reserved for issuance under the Inuvo Stock Plans
(including shares of Inuvo Common Stock authorized and reserved for
future issuance upon exercise of outstanding awards issued under
the Inuvo Stock Plans), including
264,246
shares of Inuvo
Common Stock issuable upon exercise of outstanding Inuvo Stock
Options and
1,643,949
shares of Inuvo
Common Stock issuable upon vesting of Inuvo RSUs outstanding. To
the Knowledge of Inuvo, as of the date hereof, no Person owns ten
percent (10%) or more of Inuvo’s issued and outstanding
shares of Inuvo Common Stock (calculated based on the assumption
that all securities convertible, exchangeable or exercisable into
any capital stock or other equity securities of Inuvo, whether or
not presently exercisable or convertible, have been fully exercised
or converted (as the case may be) taking account of any limitations
on exercise or conversion (including “blockers”)
contained therein without conceding that such identified Person is
a ten percent (10%) stockholder for purposes of federal securities
laws).
(b)
Except for the
Inuvo Bridge Notes, the Inuvo Stock Options set forth in
Section 5.2(c)
of
the Inuvo Disclosure Schedule and Inuvo RSUs set forth in
Section 5.2(d)
of
the Inuvo Disclosure Schedule, as of the date hereof, there are no
outstanding subscriptions, options, calls, Contracts, commitments,
understandings, restrictions, arrangements, rights or warrants,
including any right of conversion or exchange under any outstanding
security, instrument or other agreement and also including any
rights plan or other anti-takeover agreement, obligating Inuvo or
any Subsidiary of Inuvo to issue, deliver or sell, or cause to be
issued, delivered or sold, Inuvo Common Stock or obligating Inuvo
or any Subsidiary of Inuvo to grant, extend or enter into any such
agreement or commitment. Except for acquisitions or deemed
acquisitions of Inuvo Common Stock in connection with the payment
of the exercise price of Inuvo Stock Options with Inuvo Common
Stock (including in connection with net exercises), or required tax
withholdings in connection with the exercise of Inuvo Stock Options
or vesting of Inuvo RSUs, as of the date hereof, there are no
obligations, contingent or otherwise, of Inuvo or its Subsidiaries
to (i) repurchase, redeem or otherwise acquire any Inuvo
Common Stock or the capital stock or other equity interests of any
Subsidiary of Inuvo or (ii) provide material funds to, or make
any material investment in (in the form of a loan, capital
contribution or otherwise), or provide any guarantee with respect
to the obligations of, any Person other than a Inuvo’s
Subsidiary. Except as set forth in
Section 5.2(b)
of the Inuvo
Disclosure Schedule, there are no outstanding stock appreciation
rights or similar derivative securities or rights of Inuvo or any
of its Subsidiaries. Except for the Inuvo Bridge Notes, there are
no bonds, debentures, notes or other Indebtedness of Inuvo having
the right to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matters on which
stockholders of Inuvo may vote. Except for the Support Agreements,
there are no voting trusts, irrevocable proxies or other agreements
or understandings to which Inuvo or any Subsidiary of Inuvo is a
party or is bound with respect to the voting of any Inuvo Common
Stock. Except as set forth in
Section 5.2(b)
of the Inuvo
Disclosure Schedule, Inuvo has not agreed to register any
securities under the Securities Act or under any state securities
law or granted registration rights to any Person (except rights
which have terminated or expired). Neither Inuvo nor any of its
Subsidiaries has any outstanding obligations in respect of prior
acquisitions of businesses to pay, in the form of securities, cash
or other property, any portion of the consideration payable to the
seller or sellers in such transaction.
(c)
Section 5.2(c)
of the Inuvo
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all holders of outstanding Inuvo Stock Options,
including the date of grant, the number of shares of Inuvo Common
Stock subject to each such option, the exercise price per share of
Inuvo Common Stock, the exercise and vesting schedule, the number
of shares of Inuvo Common Stock remaining subject to each such
option, the Inuvo Stock Options that are incentive stock options
for purposes of the Code, and the maximum term of each such option.
None of the Inuvo Stock Options were granted with exercise prices
below fair market value on the date of grant. All Inuvo Stock
Options have been validly issued and properly approved by the Inuvo
Board (or a duly authorized committee or subcommittee thereof) in
compliance with all applicable Law and recorded on the Inuvo
Financial Statements in accordance with GAAP, and no such grants
involved any “back dating,” “forward
dating” or similar practices with respect to such
grants.
(d)
Section 5.2(d)
of the Inuvo
Disclosure Schedule sets forth a complete and correct list as of
the date hereof, of all holders of outstanding Inuvo RSUs,
including the date of grant, the number of shares of Inuvo Common
Stock subject to each such restricted stock unit, the vesting
schedule, the number of shares of Inuvo Common Stock remaining
subject to each such restricted stock unit, and the maximum term of
each such restricted stock unit. All Inuvo RSUs have been validly
issued and properly approved by the Inuvo Board (or a duly
authorized committee or subcommittee thereof) in compliance with
all applicable Law and recorded on the Inuvo Financial Statements
in accordance with GAAP.
(e)
Except as disclosed
in this
Section
5.2
above, (i) none of Inuvo’s or any of its
Subsidiaries’ outstanding capital stock is subject to
preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by Inuvo or any Subsidiary of
Inuvo, (ii) there are no outstanding securities or instruments
of Inuvo or any of its Subsidiaries which contain any redemption or
similar provisions, and there are no contracts, commitments,
understandings or arrangements by which Inuvo or any of its
Subsidiaries is or may become bound to redeem a security of Inuvo
or any of its Subsidiaries; (iii) neither Inuvo nor any of its
Subsidiaries has any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement;
and (iv) neither Inuvo nor any of its Subsidiaries have any
Liabilities or obligations required to be disclosed in Inuvo SEC
Documents which are not so disclosed in Inuvo SEC Documents, other
than those incurred in the ordinary course of Inuvo’s or its
Subsidiaries’ respective businesses and which, individually
or in the aggregate, do not or would not have a Inuvo Material
Adverse Effect.
Section 5.3
Subsidiaries.
(a)
Each Subsidiary of
Inuvo is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has the
requisite power and authority to own, lease, license and operate
its assets and properties and to carry on its business as it is now
being conducted, and each Subsidiary of Inuvo is qualified to
transact business, and is in good standing, in each jurisdiction in
which the properties owned, leased, licensed or operated by it or
the nature of the business conducted by it makes such qualification
necessary, except where such failure to be so duly approved,
qualified or licensed and in good standing has not had and would
not reasonably be expected to have, individually or in the
aggregate, a Inuvo Material Adverse Effect.
(b)
All of the
outstanding shares of capital stock or other equity interests of
each Subsidiary of Inuvo are validly issued, fully paid,
nonassessable and free of preemptive rights and are owned directly
or indirectly by Inuvo. There are no subscriptions, options,
warrants, voting trusts, proxies or other commitments,
understandings, restrictions or arrangements relating to the
issuance, sale, voting or transfer of any shares of capital stock
or other equity interests of any Subsidiary of Inuvo, including any
right of conversion or exchange under any outstanding security,
instrument or agreement.
(c)
Inuvo has
heretofore furnished to Inuvo in the Inuvo Data Room a complete and
correct copy of each of Inuvo’s Subsidiaries’ Articles
of Incorporation, Certificate of Incorporation, Articles of
Organization or Operating Agreement, as the case may be
(collectively, the “
Inuvo
Subsidiary Charters
”), and Bylaws (collectively, the
“
Inuvo Subsidiary
Bylaws
”), each as amended to date. The Inuvo
Subsidiary Charters and the Inuvo Subsidiary Bylaws are in full
force and effect. Inuvo’s Subsidiaries are not in violation
of any provision of the applicable Inuvo Subsidiary Charters or the
applicable Inuvo Subsidiary Bylaws. Inuvo has made available to CPT
in the Inuvo Data Room copies of the charters of each committee of
the Board of Directors of each Subsidiary of Inuvo and any code of
conduct or similar policy adopted by each Subsidiary of
Inuvo.
Section
5.4
Authority; Non-Contravention; Approvals
.
(a)
Inuvo has all
necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and, subject to
obtaining the Required Inuvo Stockholder Vote, to consummate the
Inuvo Merger and the other transactions contemplated by this
Agreement. Subject to obtaining the Required Inuvo Stockholder
Vote, the execution, delivery and performance by Inuvo of this
Agreement, and the consummation by Inuvo of the Inuvo Merger and
the other transactions contemplated by this Agreement, have been
duly authorized by all necessary corporate action on the part of
Inuvo, and no other actions on the part of Inuvo are necessary to
authorize this Agreement or to consummate the Inuvo Merger or the
other transactions contemplated by this Agreement other than (i)
obtaining the Required Inuvo Stockholder Vote, (ii) the filing and
recordation of the Inuvo Certificate of Merger as required by the
NRS and (iii) filings by Inuvo as may be required by the HSR Act.
This Agreement has been duly executed and delivered by Inuvo and,
assuming the due authorization, execution and delivery by Parent,
CPT, CPT Merger Sub, and Inuvo Merger Sub, constitutes a valid and
binding obligation of Inuvo enforceable against Inuvo in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar Laws
relating to or affecting the rights and remedies of creditors
generally and the effect of general principles of equity
(regardless of whether such enforceability is considered in a
Proceeding in equity or at Law). The affirmative vote of the
holders of a majority of the issued and outstanding Inuvo Common
Stock (i) entitled to vote at a duly called and held meeting of
Inuvo stockholders or (ii) action by written consent as permitted
by the Inuvo Bylaws, will be the only vote of the holders of
capital stock of Inuvo necessary to approve and adopt this
Agreement and the Merger (the “
Required Inuvo Stockholder
Vote
”).
(b)
Except as disclosed
in
Section 5.4(b)
of the Inuvo Disclosure Schedule, the execution, delivery and
performance of this Agreement by Inuvo and the consummation of the
Inuvo Merger and the other transactions contemplated hereby do not
and will not violate, conflict with, give rise to the right to
modify or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of,
or accelerate the performance required by, or result in a right of
termination or acceleration under, or require any offer to purchase
or any prepayment of any debt, or result in the creation of any
Lien, security interest or encumbrance upon any of the properties
or assets of Inuvo or any of its Subsidiaries under any of the
terms, conditions or provisions of (i) the respective
certificate of incorporation or bylaws or similar governing
documents of Inuvo or any of its Subsidiaries, (ii) any
statute, Law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any Governmental Entity
applicable to Inuvo or any of its Subsidiaries or any of their
respective properties or assets, subject in the case of
consummation, to obtaining Inuvo Required Statutory Approvals and
the Required Inuvo Stockholder Vote, (iii) any Inuvo Permit,
or (iv) any Inuvo Material Contract to which Inuvo or any of
its Subsidiaries is a party or by which Inuvo or any of its
Subsidiaries or any of their respective properties or assets may be
bound or affected, other than such violations, conflicts, rights to
modify, breaches, defaults, terminations, accelerations or
creations of Liens, security interests or encumbrances that would
not, individually or in the aggregate, reasonably be expected to
result in a Inuvo Material Adverse Effect.
(c)
Except as disclosed
in
Section 5.4(c)
of the Inuvo Disclosure Schedule and except for (i) obtaining
the Required Inuvo Stockholder Vote, (ii) the filings by Inuvo
as may be required by the HSR Act, (iii) the filing and
effectiveness of the Registration Statement with the SEC, including
the Joint Proxy Statement/Prospectus, and (iv) the filing of
the Inuvo Certificate of Merger as required by the NRS (the filings
and approvals referred to in clauses (i), (ii), (iii) and (iv)
collectively, the “
Inuvo
Required Statutory Approvals
”), no declaration, filing
or registration with, or notice to, or authorization, consent or
approval of, any Governmental Entity or other Person is necessary
for the execution and delivery of this Agreement by Inuvo or the
consummation by Inuvo of the Inuvo Merger or the other transactions
contemplated hereby, other than such declarations, filings,
registrations, notices, authorizations, consents or approvals
which, if not made or obtained, as the case may be, would not,
individually or in the aggregate, reasonably be expected to have a
Inuvo Material Adverse Effect.
Section
5.5
Reports and Inuvo Financial Statements
.
(a)
Since January 1,
2016, Inuvo has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the
SEC pursuant to the reporting requirements of the Exchange Act (all
of the foregoing filed prior to the date hereof and all exhibits
included therein and financial statements, notes and schedules
thereto and documents incorporated by reference therein being
hereinafter referred to as the “
Inuvo SEC Documents
”). As of
their respective dates, or if amended or superseded by a subsequent
filing prior to the date hereof, as of the date of such amendment
or superseded filing (and, in the case of registration statements
and proxy statements, as of the dates of effectiveness and the
dates of the relevant meetings, respectively), the Inuvo SEC
Documents complied in all material respects with the requirements
of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable to the Inuvo SEC Documents, and
none of the Inuvo SEC Documents, at the time they were filed with
the SEC, or if amended or superseded by a subsequent filing prior
to the date hereof, as of the date of such amendment or superseded
filing (and, in the case of registration statements and proxy
statements, as of the dates of effectiveness and the dates of the
relevant meetings, respectively), contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. As of their respective dates, or if amended
or superseded by a subsequent filing prior to the date hereof, as
of the date of such amendment or superseded filing (and, in the
case of registration statements and proxy statements, as of the
dates of effectiveness and the dates of the relevant meetings,
respectively), the financial statements of Inuvo included in the
Inuvo SEC Documents (the “
Inuvo Financial Statements
”)
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC with respect thereto as in effect as of the time of filing.
Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied,
during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto,
(ii) in the case of unaudited interim statements, to the
extent they may exclude footnotes or may be condensed or summary
statements, or (iii) or as permitted by Regulation S-X, or, in the
case of unaudited financial statements, as permitted by
Form 10-Q, Form 8-K or any successor form under the Exchange
Act) and fairly present in all material respects the financial
position of Inuvo as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit
adjustments which will not be material, either individually or in
the aggregate). Inuvo is not currently contemplating to amend or
restate any of the Inuvo Financial Statements (including without
limitation, any notes or any letter of the independent accountants
of Inuvo with respect thereto) included in the Inuvo SEC Documents,
nor is Inuvo currently aware of facts or circumstances which would
require Inuvo to amend or restate any of the Inuvo Financial
Statements, in each case, in order for any of the Inuvo Financials
Statements to be in compliance with GAAP and the rules and
regulations of the SEC. Inuvo has not been informed by its
independent accountants that they recommend that Inuvo amend or
restate any of the Inuvo Financial Statements or that there is any
need for Inuvo to amend or restate any of the Inuvo Financial
Statements.
(b)
Inuvo is in
material compliance with all applicable requirements of the
Sarbanes-Oxley Act of 2002 that are effective as of the date
hereof, and all applicable rules and regulations promulgated by the
SEC thereunder that are effective as of the date
hereof.
(c)
Each of Inuvo and
its Subsidiaries maintains internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that is effective to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles, including
that (i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset and liability
accountability; (iii) access to assets or incurrence of
liabilities is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded
accountability for assets and liabilities is compared with the
existing assets and liabilities at reasonable intervals and
appropriate action is taken with respect to any difference. Inuvo
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that are
effective in ensuring that information required to be disclosed by
Inuvo in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the
time periods specified in the rules and forms of the SEC,
including, without limitation, controls and procedures designed to
ensure that information required to be disclosed by Inuvo in the
reports that it files or submits under the Exchange Act is
accumulated and communicated to Inuvo’s management, including
its principal executive officer or officers and its principal
financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure.
Section
5.6
Absence
of Undisclosed Liabilities
. Neither Inuvo nor
any of its Subsidiaries has any Liabilities (whether accrued,
absolute, contingent or otherwise), except Liabilities: (a) as
and to the extent set forth on the audited consolidated balance
sheet of Inuvo and its Subsidiaries as of the Inuvo Balance Sheet
Date; (b) incurred pursuant to the terms of this Agreement, or
(c) incurred after the Inuvo Balance Sheet Date in the
ordinary course of business consistent with past practice. No
material event or development has occurred with respect to Inuvo,
any of its Subsidiaries or any of their respective businesses,
properties, prospects, operations (including results thereof) or
condition (financial or otherwise), from the filing of
Inuvo’s Form 10-Q for the three and six months ended June 30,
2018 through the date hereof, that would be required to be
disclosed by Inuvo under applicable securities Laws and which,
individually or in the aggregate would have an Inuvo Material
Adverse Effect.
Section
5.7
Litigation
.
Except as set forth in
Section 5.7
of the Inuvo
Disclosure Schedule and the Inuvo SEC Documents, as of the date
hereof, there is no Proceeding pending, or, to the Knowledge of
Inuvo, threatened, against Inuvo, any of its Subsidiaries or any of
their respective directors, managers or officers (in their
capacities as such or relating to their employment, services or
relationship with Inuvo or any of its Subsidiaries) or that would
materially relate to or affect Inuvo or any of its Subsidiaries,
before any court or other Governmental Entity or any arbitrator
which would reasonably be expected to individually or in the
aggregate, have an Inuvo Material Adverse Effect. To the Knowledge
of Inuvo, neither Inuvo nor any Subsidiary has committed a
violation of any judgment, decree, injunction or order of any
Governmental Entity applicable to Inuvo or any Subsidiary or any of
their respective properties or assets. Since January 1, 2016, there
has not been any internal investigations or inquiries conducted by
Inuvo, the Inuvo Board (or any committee thereof) or any other
Person at the request of any of the foregoing concerning any
financial, accounting, Tax, conflict of interest, self-dealing,
fraudulent or deceptive conduct or other misfeasance or malfeasance
issues. Neither Inuvo nor its Subsidiaries, nor, to the Knowledge
of Inuvo, any of the directors, managers or officers of Inuvo or
any of its Subsidiaries (in their capacities as such or relating to
their employment, services or relationship with Inuvo or any of its
Subsidiaries as applicable) is subject to any judgment, decree,
injunction or order of any Governmental Entity. Neither Inuvo nor
its Subsidiaries has any action, suit, proceeding, claim,
mediation, arbitration or investigation pending against any other
Person.
Section
5.8
Absence
of Certain Changes or Events
. Except as set
forth in
Section
5.8
of the Inuvo Disclosure Schedule, since September 30,
2018, Inuvo and its Subsidiaries have conducted their businesses in
the ordinary course of business consistent with past practice and
there has not been:
(a)
any circumstance
or event, or series of circumstances or events, which, individually
or in the aggregate, has had or would reasonably be expected to
have an Inuvo Material Adverse Effect;
(b)
any material
change in any method of accounting or accounting practice by Inuvo
or any Subsidiary, except for any such change required by reason of
a concurrent change in GAAP or required by applicable
Law;
(c)
any material
revaluation by Inuvo or any Subsidiary of a material asset
(including, without limitation, any material writing down of the
value of inventory or material writing-off of notes or accounts
receivable);
(d)
any transaction or
commitment made, or any Contract or agreement entered into, by
Inuvo or any Subsidiary, relating to its assets or business
(including, without limitation, the acquisition, disposition,
leasing or licensing of any tangible or intangible assets) or any
relinquishment by Inuvo or any Subsidiary of any Contract or other
right, in either case, material to Inuvo and Subsidiary taken as a
whole, other than transactions and commitments in the ordinary
course of business consistent with past practice and those
contemplated by this Agreement;
(e)
any declaration,
setting aside or payment of any dividend (whether in cash, stock or
property) or other distribution in respect of Inuvo’s capital
stock or any redemption, purchase or other acquisition of any of
Inuvo’s securities;
(f)
any split,
combination or reclassification of any of Inuvo’s capital
stock or any issuance or the authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for
shares of its capital stock;
(g)
any amendment of
any material term of any outstanding security of Inuvo or any
Subsidiary;
(h)
any issuance by
Inuvo or any Subsidiary of any notes, bonds or other debt
securities or any capital stock or other equity securities or any
securities convertible, exchangeable or exercisable into any
capital stock or other equity securities, except for the issuance
of any Inuvo Common Stock pursuant to the exercise of any Inuvo
Stock Options and Inuvo RSUs, or otherwise pursuant to Inuvo Stock
Plans, in existence prior to the date hereof;
(i)
any material
incurrence, assumption or guarantee by Inuvo or any Subsidiary of
any Indebtedness for borrowed money other than in the ordinary
course of business and in amounts and on terms consistent with past
practices;
(j)
any creation or
assumption by Inuvo or any Subsidiary of any material Lien on any
material asset(s) (alone or in the aggregate) other than in the
ordinary course of business consistent with past
practice;
(k)
any making of any
material loan, advance or capital contributions to or investment in
any entity or person other than loans, advances or capital
contributions to or investments in any Subsidiary and except for
cash advances to employees for reimbursable travel and other
reasonable business expenses, in each case made in the ordinary
course of business consistent with past practice;
(l)
any damage,
destruction or other casualty loss (whether or not covered by
insurance) affecting the business or assets of Inuvo or any
Subsidiary which, individually or in the aggregate, has had or
would reasonably be expected to have a Inuvo Material Adverse
Effect;
(m)
any material grant
of equity or other compensation, or increase in the benefits under,
or the establishment, material amendment or termination of, any
Inuvo Benefit Plan covering current or former employees, officers,
consultants, or directors of Inuvo or any Subsidiary, or any
material increase in the compensation payable or to become payable
to or any other material change in the employment terms for any
current or former directors or officers of Inuvo or any of its
Subsidiaries or any other employee earning noncontingent cash
compensation in excess of $100,000 per year;
(n)
any entry by Inuvo
or any Subsidiary into any employment, consulting, severance,
change in control, retention, termination or indemnification
agreement with any current or former director, consultant or
officer of Inuvo or any Subsidiary, entry into any such agreement
with any person for a noncontingent cash amount in excess of
$250,000 per year or outside the ordinary course of business, or
entry into any employment agreement other than on an at-will
basis;
(o)
any labor dispute,
other than routine individual grievances, or any activity or
Proceeding by a labor union or representative thereof to organize
any employees of Inuvo or any of its subsidiaries for the purposes
of forming a labor union or labor organization, or for selecting a
labor union or labor organization as a collective bargaining
representative;
(p)
any authorization
or commitment with respect to, any single capital expenditure that
was in excess of $1,000,000 individually or $5,000,000 in the
aggregate; or
(q)
any authorization
of, or agreement by Inuvo or any Subsidiary to take, any of the
actions described in this
Section 5.8
, except as
expressly contemplated by this Agreement.
Section
5.9
Compliance with Applicable Law; Permits
.
(a)
Except as set forth
in
Section 5.9(a)
of the Inuvo Disclosure Schedule, Inuvo and its Subsidiaries hold
all material authorizations, permits, licenses, certificates,
easements, concessions, franchises, variances, exemptions, orders,
consents, registrations, approvals and clearances of all
Governmental Entities (including, without limitation, all those
that may be required by Governmental Entities engaged in the
regulation of Inuvo Products) which are required for Inuvo and its
Subsidiaries to own, lease, license and operate their properties
and other assets and to carry on their respective business in the
manner described in the Inuvo SEC Documents filed prior to the date
hereof and as they are being conducted as of the date hereof (the
“
Inuvo
Permits
”), and all Inuvo Permits are valid, and in
full force and effect, except where the failure to have, or the
suspension or cancellation of, or the failure to be valid or in
full force and effect of, any such Inuvo Permits would not,
individually or in the aggregate, reasonably be expected to have a
Inuvo Material Adverse Effect.
Section 5.9(a)
of the Inuvo
Disclosure Schedule sets forth a list of all material Inuvo
Permits.
(b)
Inuvo and its
Subsidiaries are, and have been at all times, in compliance with
the terms of the Inuvo Permits and all applicable Laws relating to
Inuvo and its Subsidiaries or their respective businesses, assets
or properties, except where the failure to be in compliance with
the terms of the Inuvo Permits or such applicable Law would not,
individually or in the aggregate, reasonably be expected to have a
Inuvo Material Adverse Effect. To the Knowledge of Inuvo, neither
Inuvo nor any of its Subsidiaries has received any written
notification from any Governmental Entity (i) asserting that
Inuvo or any of its Subsidiaries is not in compliance with any Law
or Inuvo Permit, or (ii) threatening to revoke any Inuvo
Permit.
Section
5.10
Taxes
. Except as
disclosed on
Section
5.10
of the Inuvo Disclosure Schedules:
(a)
Each of Inuvo and
its Subsidiaries has (or as to its Subsidiaries, Inuvo has filed on
behalf of such Subsidiaries) (i) duly and timely filed with
the appropriate Governmental Entity all income and other material
Tax Returns required to be filed by it (taking into account any
applicable extensions) and all such Tax Returns are true, correct
and complete in all material respects and prepared in substantial
compliance with all applicable Laws and (ii) timely paid all
Taxes due and owing (whether or not shown due on any Tax Returns).
Neither Inuvo nor any of its Subsidiaries currently is the
beneficiary of any extension of time within which to file any Tax
Return. No written claim has ever been made by a Governmental
Entity in a jurisdiction where Inuvo and its Subsidiaries do not
file Tax Returns that Inuvo or any of its Subsidiaries is or may be
subject to taxation by that jurisdiction that has not been
resolved.
(b)
The unpaid Taxes
of Inuvo and its Subsidiaries did not, as of the most recent fiscal
month end, materially exceed the reserve for Tax Liabilities
(excluding any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the
face of the balance sheets (rather than in any notes thereto)
contained in the Inuvo Financial Statements.
(c)
There are no Liens
for Taxes upon any property or asset of Inuvo or any Subsidiary
thereof, except for statutory Liens for current Taxes that are not
yet due and payable, or for Taxes contested in good faith through
appropriate proceedings and reserved against in accordance with
GAAP.
(d)
No material
deficiencies for Taxes with respect to any of Inuvo and its
Subsidiaries have been set forth or claimed, proposed, or assessed
in writing by a Governmental Entity that have not been finally
settled or otherwise resolved. There are no pending or, to the
Knowledge of Inuvo, proposed or threatened audits, investigations,
disputes or claims or other actions for or relating to any
Liability for Taxes with respect to any of Inuvo and its
Subsidiaries. Neither Inuvo nor any of its Subsidiaries has waived
any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency,
or has made any request in writing for any such extension or waiver
that remains in effect. There is not currently in effect any power
of attorney authorizing any Person to act on behalf of Inuvo, or
receive information relating to Inuvo, with respect to any Tax
matter.
(e)
Neither Inuvo nor
any of its Subsidiaries has requested or received any ruling from
any Governmental Entity, or signed any binding agreement with any
Governmental Entity that would affect any amount of Tax payable
after the Closing Date.
(f)
Each of Inuvo and
its Subsidiaries has withheld and paid all Taxes required to have
been withheld and paid in connection with amounts paid or owing to
any employee, independent contractor, creditor, stockholder or
other third party, and all Tax Returns (including without
limitation all IRS Forms W-2 and 1099) required with respect
thereto have been properly completed and timely filed with, and
supplied to, the appropriate parties.
(g)
Except for any
such customary agreements with customers, vendors, lenders, lessors
or the like entered into in the ordinary course of business (each
of which is not specifically entered into to address Taxes),
neither Inuvo nor any of its Subsidiaries is a party to or bound by
or has any obligation under any Tax sharing, allocation or
indemnification agreement or similar contract or arrangement or any
agreement that obligates it to make any payment computed by
reference to the Taxes, taxable income or taxable losses of any
other Person.
(h)
Except for the
affiliated group of which Inuvo is the common parent, each of Inuvo
and its Subsidiaries is not and has never been a member of an
affiliated group of corporations within the meaning of
Section 1504 of the Code or any group that has filed a
combined, consolidated or unitary Tax Return. Neither Inuvo nor any
of its Subsidiaries is liable for the Taxes of any Person (other
than Persons that are part of the affiliated group of which Inuvo
is the common parent) (i) under Treasury Regulations
Section 1.1502-6 (or any similar provision of state, local or
foreign law), (ii) as a transferee or successor, or
(iii) otherwise.
(i)
Neither Inuvo nor
any of its Subsidiaries has constituted either a
“distributing corporation” or a “controlled
corporation” in a distribution of stock intended to qualify
for tax-free treatment under Section 355 of the
Code.
(j)
Neither Inuvo nor
any of its Subsidiaries has taken any action, agreed to take any
action, failed to take any action, or knows of any fact that would
be reasonably expected to prevent the Exchanges from qualifying as
an “exchange” within the meaning of Section 351 of
the Code.
(k)
Neither Inuvo nor
any of its Subsidiaries has participated in a “reportable
transaction,” as such term is defined in Treasury Regulations
Section 1.6011-4(b)(1) (other than such transactions that have
been properly reported) or any other transaction requiring
disclosure under analogous provisions of state, local or foreign
Tax law.
(l)
Neither Inuvo nor
any of its Subsidiaries has been a United States real property
holding corporation within the meaning of Section 897(c)(2) of
the Code at any time during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code.
Section
5.11
Environmental
Matters
. Inuvo and its
Subsidiaries (i) are in compliance with all Environmental Laws,
(ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where, in each of the foregoing clauses (i), (ii) and (iii),
the failure to so comply would be reasonably expected to have,
individually or in the aggregate, a Inuvo Material Adverse
Effect.
Section
5.12
Contracts
.
The Exhibit Index to Inuvo’s Annual Report on Form 10-K for
the year ended December 31, 2017 or the Quarterly Reports on Form
10-Q or Current Reports on Form 8-K filed subsequent to such Form
10-K list each Contract that would be required to be filed by Inuvo
as a “material contract” pursuant to Item 601(b)(10) of
Regulation S-K in such reports (each, a “
Inuvo Material Contract
”). Neither
Inuvo nor any Subsidiary of Inuvo is in breach or violation of or
default in any material respect under the terms of any Inuvo
Material Contract and, to the Knowledge of Inuvo, no other party to
any Inuvo Material Contract is in breach or violation of or default
in any material respect under the terms of any Inuvo Material
Contract and, to the Knowledge of Inuvo, no event has occurred or
not occurred through Inuvo’s or any of its
Subsidiaries’ action or inaction or, to Inuvo’s
Knowledge, through the action or inaction of any third party, that
with notice or the lapse of time or both would constitute a breach
or violation of or default under the terms of any Inuvo Material
Contract, in each case except as has not had and would not
reasonably be expected to have a Inuvo Material Adverse Effect. To
the Knowledge of Inuvo, each Inuvo Material Contract (i) is a valid
and binding obligation of Inuvo or the Subsidiary of Inuvo that is
party thereto and of each other party thereto and (ii) is in full
force and effect except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar Laws
relating to or affecting the rights and remedies of creditors
generally and the effect of general principles of equity
(regardless of whether such enforceability is considered in a
Proceeding in equity or at Law). There are no disputes pending or,
to Inuvo’s Knowledge, threatened with respect to any Inuvo
Material Contract and neither Inuvo nor any of its Subsidiaries has
received any written notice of the intention of any other party to
a Inuvo Material Contract to terminate for default, convenience or
otherwise any Inuvo Material Contract, nor to the Inuvo’s
Knowledge, is any such party threatening to do so, in each case
except as has not had and would not reasonably be expected to have,
individually or in the aggregate, a Inuvo Material Adverse
Effect.
Section
5.13
Business
Relationships.
Inuvo has made
available to CPT the top ten (10) suppliers (based on current
fiscal year expenditures) of products or services and the top ten
(10) customers (based on current fiscal year revenues) of Inuvo and
Inuvo’s Subsidiaries (on a consolidated basis). Since the
Inuvo Balance Sheet Date, to the Knowledge of Inuvo, there has not
been any material adverse change in the business relationship of
Inuvo or any of Inuvo’s Subsidiaries with any such customer
or supplier or any change or development that is reasonably likely
to give rise to any such material adverse change, and neither Inuvo
nor any of Inuvo’s Subsidiaries has received any written or
oral communication or notice from any such customer or supplier to
the effect that, or otherwise has Knowledge that, any such customer
or supplier (a) has changed, modified, amended or reduced, or
is reasonably likely to change, modify, amend or reduce its
business relationship with Inuvo or any of Inuvo’s
Subsidiaries in a manner that is, or is reasonably likely to be
materially adverse to Inuvo or any of Inuvo’s Subsidiaries,
or (b) will fail to perform, or is reasonably likely to fail
to perform, its obligations under any Material Contract with Inuvo
or any of Inuvo’s Subsidiaries in any manner that is, or is
reasonably likely to individually, or in the aggregate, to have an
Inuvo Material Adverse Effect.
Section
5.14
Transactions
with Affiliates
. Except as set
forth in the Inuvo SEC Documents, none of the officers, directors,
employees or Affiliates of Inuvo or any of its Subsidiaries is
presently a party to any transaction with Inuvo or any of its
Subsidiaries (other than for ordinary course services as employees,
officers or directors), including any Contract or other arrangement
providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director, employee
or affiliate or, to the Knowledge of Inuvo or any of its
Subsidiaries, any corporation, partnership, trust or other Person
in which any such officer, director, or employee has a substantial
interest or is an employee, officer, director, trustee, affiliate
or partner.
Section
5.15
Certain Business Practices
.
(a)
Neither Inuvo nor
its Subsidiaries, nor any of their directors or executive officers,
or to the Knowledge of Inuvo their employees, agents or any other
person acting for or on behalf of Inuvo or any of its Subsidiaries,
directly or indirectly, (i) violated the Foreign Corrupt
Practices Act of 1977, as amended, or violated any similar Law; or
(ii) made any unlawful bribe, unlawful kickback or other
unlawful payment to any Person, whether in money, property or
services, to obtain favorable treatment in securing business to
obtain special concessions for Inuvo or any of its Subsidiaries.
Neither Inuvo nor its Subsidiaries, nor, any of their directors,
officers, or, to the Knowledge of Inuvo their employees, agents, or
any other person acting for or on behalf of Inuvo or its
Subsidiaries is the subject of any current, pending or threatened
investigation, inquiry or enforcement proceedings for violations of
the Foreign Corrupt Practices Act of 1977, as amended, or any
similar Law in any country in which Inuvo or its Subsidiaries does
business.
(b)
None of Inuvo or
any Subsidiary of Inuvo nor, to the Knowledge of Inuvo, any
director, officer, employee, auditor, accountant or representative
of Inuvo or any Subsidiary of Inuvo, has received or otherwise had
or obtained knowledge of any material complaint, allegation,
assertion or claim, whether written or oral, regarding accounting,
internal accounting controls or auditing practices, procedures,
methodologies or methods of Inuvo or any Subsidiary of Inuvo or any
material complaint, allegation, assertion or claim from employees
of Inuvo or any Subsidiary of Inuvo regarding questionable
accounting or auditing matters with respect to Inuvo or any
Subsidiary of Inuvo, and to the Knowledge of Inuvo, no attorney
representing Inuvo or any Subsidiary Inuvo, whether or not employed
by Inuvo or any Subsidiary of Inuvo, has reported evidence of any
material violation of state or federal banking or securities Laws,
breach or violation of fiduciary duty or similar violation, by
Inuvo, any Subsidiary of Inuvo or any of their respective officers,
directors, managers, employees or agents to the Board of Directors
of Inuvo or any committee thereof, or to the general counsel or
chief executive officer of Inuvo.
(c)
Except as set forth
on
Section 5.18(a)
of the Inuvo Disclosure Schedule, without limiting the generality
of the foregoing, Inuvo is not in violation of any of the rules,
regulations or requirements of NYSE American and has no Knowledge
of any facts or circumstances that would reasonably be expected to
lead to delisting or suspension of the Inuvo Common Stock by the
rules and regulations of NYSE American. During the two years prior
to the date hereof, (i) the Inuvo Common Stock has been listed
or designated for quotation on NYSE American; (ii) trading in
the Inuvo Common Stock has not been suspended by the SEC or NYSE
American; and (iii) Inuvo has received no communication,
written or oral, from the SEC or NYSE American regarding the
suspension or delisting of the Inuvo Common Stock from NYSE
American.
Section
5.16
Opinion
of Financial Advisor
. Inuvo’s
financial advisor, Canaccord Genuity LLC (the “
Inuvo Financial Advisor
”), has
delivered to the Inuvo Board its written opinion to the effect
that, as of the date of such opinion, the Inuvo Merger
Consideration is fair, from a financial point of view, to the
stockholders of Inuvo.
Section
5.17
Brokers
and Finders
. Inuvo has not
entered into any Contract, arrangement or understanding with any
Person or firm which may result in the obligation of Inuvo to pay
any investment banking fees, finder’s fees, or brokerage
commissions in connection with the transactions contemplated
hereby, other than fees payable to the Inuvo Financial
Advisor.
Section
5.18
Intellectual
Property
.
(a)
Section 5.18(a)
of the Inuvo
Disclosure Schedule sets forth a true and complete list as of the
date hereof of all (i) issued patents and patent applications;
(ii) material Inuvo Registered Brand Names; (iii) material
Inuvo Unregistered Brand Names and applications therefor; and
(iv) material domain name registrations, in each case set
forth in subsections (i) through (iv) above, included in Inuvo
Owned Intellectual Property as of the date hereof. All the patents,
patent applications, Inuvo Registered Brand Names, copyright
registrations, copyright applications, and applications comprising
Inuvo Unregistered Brand Names are subsisting and all the necessary
fees and costs have been paid.
(b)
Section 5.18(b)
of the Inuvo
Disclosure Schedule sets forth a complete and accurate list of all
Contracts by which Inuvo or any of its Subsidiaries has been
granted or has granted to others any license, covenant not to sue
or other immunity to or under Intellectual Property that is
material to the conduct of the business of Inuvo or any of its
Subsidiaries, as conducted as of the date hereof (collectively,
“
Inuvo Material
Licenses
”);
provided, however
, that
Section 5.18(b)
of the Inuvo
Disclosure Schedule does not disclose licenses of computer software
which computer software has not been significantly modified or
customized and that is available commercially off-the-shelf. Inuvo
has made available to CPT in the Inuvo Data Room a true and
complete copy of each Inuvo Material License.
(c)
Neither
(i) the use of Inuvo Owned Intellectual Property and
Intellectual Property licensed to Inuvo and/or its Subsidiaries
under Inuvo Material Licenses in connection with the operation of
the business of Inuvo or any of its Subsidiaries as conducted as of
the date hereof, nor (ii) the manufacture, use, offer for
sale, and sale of Inuvo Products (as such products exist as of the
date hereof) to the Knowledge of Inuvo, infringe or misappropriate
or otherwise violate any valid Intellectual Property rights of any
Person, and Inuvo is unaware of any facts that would form a
reasonable basis for a claim of any such infringement,
misappropriation or violation. No Proceeding is pending or, to the
Knowledge of Inuvo, threatened against Inuvo or any of its
Subsidiaries alleging any of the foregoing.
(d)
Inuvo or a
Subsidiary of Inuvo is the exclusive owner of all right, title and
interest in and to each item of Intellectual Property purported to
be Inuvo Owned Intellectual Property, including without limitation,
the items listed on
Section 5.18(a)
of the Inuvo
Disclosure Schedule. Inuvo or a Subsidiary of Inuvo is entitled to
use Inuvo Owned Intellectual Property and Intellectual Property
licensed to Inuvo and/or its Subsidiaries under Inuvo Material
Licenses in the ordinary course of its business consistent with
past practice, subject only to any applicable terms of Inuvo
Material Licenses.
(e)
Other than Inuvo
Owned Intellectual Property and Intellectual Property licensed to
Inuvo and/or its Subsidiaries under Inuvo Material Licenses, there
are no items of Intellectual Property that are necessary to the
conduct of the business of Inuvo or any of its Subsidiaries as
conducted as of the date hereof, with the exception of any licenses
of computer software which computer software has not been
significantly modified or customized and that is available
commercially off-the-shelf. Inuvo Owned Intellectual Property is
valid and enforceable, and Inuvo has the right to enforce such
Inuvo Owned Intellectual Property that has not been licensed to
another Person on an exclusive basis, and such Intellectual
Property has not been adjudged by a court of competent jurisdiction
to be invalid or unenforceable (except for challenges and
adjudications that may be received in the ordinary course of the
prosecution of Intellectual Property applications in Intellectual
Property offices) in whole or part.
(f)
No legal
Proceedings are pending or, to the Knowledge of Inuvo, threatened
against Inuvo or any of its Subsidiaries (i) based upon,
challenging or seeking to deny or restrict the use by Inuvo or any
of its Subsidiaries of any of the Intellectual Property licensed to
Inuvo and/or its Subsidiaries under Inuvo Material Licenses, or
(ii) alleging that Inuvo Material Licenses conflict with the
terms of any other Person’s license or other
agreement.
(g)
To the Knowledge
of Inuvo, there are no infringements, misappropriations or
violations by others of any of Inuvo Owned Intellectual Property
and Inuvo is unaware of any facts which would form a reasonable
basis for a claim of any such infringement, misappropriation or
violation.
(h)
Inuvo and its
Subsidiaries have taken commercially reasonable measures (but at
least commensurate with industry standards) to maintain their
material trade secrets in confidence.
(i)
To the Knowledge
of Inuvo (i) there has been no misappropriation of any trade
secrets of Inuvo or any of its Subsidiaries by any Person, and
(ii) no employee, independent contractor or agent of Inuvo or
any of its Subsidiaries has misappropriated any trade secrets of
any other Person in the course of such performance as an employee,
independent contractor or agent.
(j)
The execution,
delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby, will not result in or give
rise to (i) any right of termination or other right to impair
or limit any of Inuvo’s rights to own or license any of Inuvo
Owned Intellectual Property, (ii) the inability (for any
period of time) of Parent to succeed to the rights and perform the
obligations of Inuvo and any of its applicable Subsidiaries with
respect to Inuvo Owned Intellectual Property, pursuant to the terms
of this Agreement, or (iii) the right to market Inuvo Products
as presently marketed.
Section
5.19
Off
Balance Sheet Arrangements
. There is no
transaction, arrangement, or other relationship between Inuvo or
any of its Subsidiaries and an unconsolidated or other off- balance
sheet entity that is required to be disclosed by Inuvo in its
Exchange Act filings and is not so disclosed or that otherwise
would be reasonably likely to have a Inuvo Material Adverse
Effect.
Section
5.20
Manipulation
of Price
. Neither Inuvo nor
any of its Subsidiaries has, and, to the Knowledge of Inuvo, no
Person acting on their behalf has, directly or indirectly,
(a) taken any action designed to cause or to result in the
stabilization or manipulation of the price of any security of Inuvo
or any of its Subsidiaries to facilitate the sale or resale of any
of the Inuvo Common Stock, (b) sold, bid for, purchased, or
paid any compensation for soliciting purchases of, any of the Inuvo
Common Stock, or (c) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other
securities of Inuvo or any of its Subsidiaries.
Section
5.21
Intentionally
Omitted
.
Section 5.22
Employee Benefit Plans; ERISA
.
(a)
Section 5.22(a)
of the Inuvo
Disclosure Schedule includes a complete list, as of the date
hereof, of each Inuvo Benefit Plan. With respect to each of the
written Inuvo Benefit Plans, Inuvo has made available to CPT true
and complete copies of the following documents to the extent
applicable: (i) the governing plan document, all amendments
thereto and related trust documents, group contracts, insurance
policies or other funding arrangements, and amendments thereto;
(ii) the three most recently filed Forms 5500 annual returns
and all schedules thereto, including any audited financial
statements and auditors’ opinions; (iii) the most recent
favorable determination, opinion or advisory letter issued by the
IRS; (iv) the actuarial report, statement of assets and
liabilities, and annual nondiscrimination testing results for the
three most recently completed plan years; (v) the most recent
summary plan description and any summaries of material
modifications thereto; (vi) a summary of the material terms of
any Inuvo Benefit Plan that is not in writing; and (vii) any
filings, applications or submissions under the IRS’ Voluntary
Correction Program or the Department of Labor’s Delinquent
Filer Voluntary Compliance Program or the Voluntary Fiduciary
Correction Program.
(b)
Inuvo and its
Subsidiaries have operated and administered each of the Inuvo
Benefit Plans in accordance with their terms and all the provisions
of Laws and regulations applicable to the Inuvo Benefit Plans. All
contributions, reserves or premium payments required to be made or
accrued as of the date hereof with respect to the Inuvo Benefit
Plans have been timely paid or accrued by Inuvo and its
Subsidiaries as applicable. Inuvo and its Subsidiaries have
satisfied all reporting and disclosure requirements under the Code
and ERISA that are applicable to the Inuvo Benefit Plans. No event
or condition exists which would reasonably be expected to subject
Inuvo or any of its Subsidiaries to Liability in connection with
the Inuvo Benefit Plans or any plan, program, or policy sponsored
or contributed to by any of their respective ERISA Affiliates other
than the provision of benefits thereunder in the ordinary course.
With respect to each applicable Inuvo Benefit Plan, (i) there
are no pending or, to the Knowledge of Inuvo, threatened actions
which have been asserted or instituted and which would reasonably
be expected to result in any Liability of Inuvo or any of its
Subsidiaries (other than routine claims for benefits payable in the
ordinary course); (ii) there are no audits, inquiries or
Proceedings pending or, to the Knowledge of Inuvo, threatened by
any governmental authority; and (iii) there has been no breach
of fiduciary duty (including violations under Part 4 of Subtitle B
of Title I of ERISA) which has resulted or would reasonably be
expected to result in material Liability to Inuvo, any Inuvo
Subsidiary, or any of their respective employees.
(c)
Except as provided
herein or in the Separation Agreements, in no event will the
execution and delivery of this Agreement or any other related
agreement, the consummation of the Inuvo Merger or the transactions
contemplated hereby or thereby, or Required Inuvo Stockholder Vote
(either alone or in conjunction with any other event, such as
termination of employment) result in, cause the accelerated
vesting, exercisability, funding or delivery of, or increase the
amount or value of, any material payment or benefit to any current
or former employee, officer or director of Inuvo or any of its
Subsidiaries or any beneficiary or dependent thereof or result in a
limitation on the right of Inuvo or any of its Subsidiaries to
amend, merge, terminate or receive a reversion of assets from any
Inuvo Benefit Plan or related trust.
(d)
Section 5.22(d)
of the Inuvo
Disclosure Schedule identifies each Inuvo Benefit Plan that is
intended to be a “qualified plan” within the meaning of
Section 401(a) of the Code or is intended to be similarly
qualified or registered under applicable foreign law (collectively,
the “
Inuvo Qualified
Plans
”). Each Inuvo Qualified Plan that is intended to
be tax-qualified under Section 401(a) of the Code has received
a favorable determination or opinion letter from the IRS that it is
entitled to rely upon, and its accompanying trust is exempt from
taxation under Section 501(a) of the Code, and, to the
Knowledge of Inuvo, no fact or event has occurred since the date of
such letter that would reasonably be expected to jeopardize the
tax-qualified status of any such Inuvo Qualified Plan or the
tax-exempt status of its accompanying trust.
(e)
Except as otherwise
provided in
Section
5.22(e)
of the Inuvo Disclosure Schedule, no Inuvo Benefit
Plan provides health benefits (whether or not insured) with respect
to employees or former employees (or any of their beneficiaries) of
Inuvo or any of its Subsidiaries after retirement or other
termination of service (other than coverage or benefits
(A) required to be provided under Part 6 of Subtitle B of
Title I of ERISA or any other similar applicable Law and / or
(B) the full cost of which is borne by the employee or former
employee (or any of their beneficiaries)).
(f)
Neither Inuvo nor
any of its Subsidiaries or any of their respective ERISA Affiliates
sponsor, contribute to or have any Liabilities with respect to any
Inuvo Benefit Plan that: (i) is subject to Title IV or
Section 302 of ERISA or Section 412, 430, 431 or 432 of
the Code; (ii) is a Multiemployer Plan; or (iii) Except
as otherwise provided in
Section 5.22(f)
of the Inuvo
Disclosure Schedule, is a multiple employer plan that is described
in Section 413 of the Code. No “reportable event,”
as such term is defined in ERISA Section 4043(c), has occurred
or is continuing with respect to any Inuvo Benefit Plan. No Inuvo
Benefit Plan that is or was subject to Title IV of ERISA has been
terminated and no proceeding has been initiated to terminate any
such plan. Neither Inuvo nor any of its Subsidiaries or any of
their respective ERISA Affiliates has incurred or reasonably
expects to incur, any Liability to the PBGC with respect to any
Inuvo Benefit Plan, except for required premium payments, which
payments have been timely made when due.
(g)
Neither Inuvo nor
any of its Subsidiaries or any of their respective ERISA Affiliates
has incurred or expects to incur any “withdrawal
liability” (as defined in ERISA Section 4201) under or
with respect to any Inuvo Benefit Plan that is a Multiemployer
Plan.
(h)
No Inuvo Benefit
Plan is maintained outside the jurisdiction of the United States,
or covers any employee, contractor or other service provider
residing or working outside the United States.
(i)
Except as provided
in
Section 5.22(i)
of the Inuvo Disclosure Schedule, there is no Contract, agreement,
plan or arrangement to which Inuvo or any Subsidiary of Inuvo is a
party, including but not limited to the provisions of this
Agreement, that, individually or collectively, would give rise to
the payment of any amount that would not be deductible pursuant to
Section 162(m) of the Code.
(j)
No payment
pursuant to any Inuvo Benefit Plan or Inuvo Benefit Arrangement
between Inuvo or a Subsidiary and any “service
provider” (as such term is defined in Section 409A of
the Code and the United States Treasury Regulations and IRS
guidance thereunder), including, without limitation, the grant,
vesting or exercise of any equity option, would subject any Person
to a tax pursuant to Section 409A of the Code, whether
pursuant to the consummation of the Merger, any other transaction
contemplated by this Agreement or otherwise.
(k)
Each Inuvo Benefit
Plan, Inuvo Benefit Arrangement, or other Contract, plan, program,
agreement, or arrangement that is a “nonqualified deferred
compensation plan” (within the meaning of
Section 409A(d)(1) of the Code) has been operated in
compliance with Section 409A of the Code, its Treasury
regulations, and any applicable administrative guidance relating
thereto; and no additional tax under Section 409A(a)(1)(B) of
the Code has been or is reasonably expected to be incurred by a
participant in any such Inuvo Benefit Plan, Inuvo Benefit
Arrangement, or other Contract, plan, program, agreement, or
arrangement. Neither Inuvo nor any ERISA Affiliate is a party to,
or otherwise obligated under, any Contract, agreement, plan or
arrangement that provides for the gross-up of taxes imposed by
Section 409A(a)(1)(B) of the Code.
(l)
Except as provided
in
Section 5.22(l)
of the Inuvo Disclosure Schedule, no amount that could be received
(whether in cash or property or the vesting of property), as a
result of the execution and delivery of this Agreement or any other
related agreement, the consummation of the transactions
contemplated hereby or thereby, or the Required Inuvo Stockholder
Vote of the Inuvo Merger (either alone or in conjunction with any
other event, such as termination of employment), by any employee,
officer or director of Inuvo or any Subsidiary of Inuvo who is a
“disqualified individual” (as such term is defined in
Treasury Regulation Section 1.280G-1) under any Inuvo Benefit Plan,
Inuvo Benefit Arrangement or otherwise could be characterized as a
“parachute payment” (as defined in Section 280G(b)(2)
of the Code). Inuvo has made available to CPT all requested
information to determine, as of the date hereof, the estimated
maximum amount that could be paid to each disqualified individual
in connection with the transactions contemplated by this Agreement
under all employment, severance and termination agreements, other
compensation arrangements, Inuvo Benefit Arrangements and Inuvo
Benefit Plans currently in effect, assuming that the
individual’s employment with Inuvo is terminated immediately
after the Effective Time. Inuvo has made available to CPT in the
Inuvo Data Room (i) the grant dates, exercise prices and vesting
schedules applicable to each Inuvo Option granted to the
individual; (ii) the “base amount” (as defined in
Section 280G(b)(e) of the Code) for each such individual as of the
date of this Agreement; and (iii) the maximum additional amount
that Inuvo has an obligation to pay to each disqualified individual
to reimburse the disqualified individual for any excise tax imposed
under Section 4999 of the Code with respect to the disqualified
individual’s excess parachute payments (including any taxes,
interest or penalties imposed with respect to the excise
tax).
Section
5.23
Labor and Other Employment Matters
.
(a)
Except as disclosed
in
Section 5.23(a)
of the Inuvo Disclosure Schedule, as of the date hereof,
(i) no work stoppage, slowdown, lockout, labor strike,
grievances, arbitration or other material labor dispute against
Inuvo or any of its Subsidiaries by employees is pending or, to the
Knowledge of Inuvo, threatened; (ii) neither Inuvo nor any of
its Subsidiaries is delinquent in payments to any of its employees
for any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it or amounts required
to be reimbursed to such employees; (iii) for the past four
(4) years, Inuvo and each of its Subsidiaries have been in material
compliance with all applicable Laws respecting labor, employment,
fair employment practices, terms and conditions of employment,
immigration, workers’ compensation, occupational safety,
plant closings, layoffs, reductions in force and wage and hours;
(iv) to the Knowledge of Inuvo, Inuvo and each of its
Subsidiaries has withheld all amounts required by Law or by
agreement to be withheld from the wages, salaries, and other
payments to employees and is not liable for any arrears of wages or
any Taxes or any penalty for failure to comply with any of the
foregoing; (v) to the Knowledge of Inuvo, neither Inuvo nor
any of its Subsidiaries is liable for any material payment to any
trust or other fund or to any Governmental Entity, with respect to
unemployment compensation benefits, social security or other
benefits or obligations for employees (other than routine payments
to be made in the ordinary course of business consistent with past
practice); (vi) other than as made available to Inuvo in the Inuvo
Data Room, there are no pending claims against Inuvo or any of its
Subsidiaries under any workers’ compensation plan or policy
or for long term disability; (vii) there are no controversies
pending or, to the Knowledge of Inuvo, threatened (including
threatened lawsuits or claims), between Inuvo or any of its
Subsidiaries and any of their respective current or former
employees, which controversies have or would reasonably be expected
to result in an Proceeding before the National Labor Relations
Board, the Equal Employment Opportunity Commission, the Department
of Fair Employment and Housing, Labor Commissioner, the Department
of Labor, OSHA, or any other Governmental Entity; (viii) all
employees of Inuvo and its Subsidiaries are employed on an at-will
basis, and their respective employment can be terminated at any
time, with or without notice, for any lawful reason or no reason at
all; and (ix) Inuvo and its Subsidies have not conducted any
layoffs or reductions in force within six (6) months of the date
hereof. As of the date hereof, to the Knowledge of Inuvo, no
employees of Inuvo or any of its Subsidiaries are in violation of
any term of any employment or other Contract, including any
non-disclosure agreement, noncompetition agreement, or any
restrictive covenant to a former employer relating to the right of
any such employee to be employed by Inuvo or any of its
Subsidiaries because of the nature of the business conducted or
presently proposed to be conducted by Inuvo or such Subsidiary or
to the use of trade secrets or proprietary information of others.
As of the date hereof, no exempt employee of Inuvo or any of its
Subsidiaries has given notice in writing to Inuvo or any of its
Subsidiaries that any such employee intends to terminate his or her
employment with Inuvo or any of its Subsidiaries.
(b)
Since January 1,
2016, neither Inuvo nor any of its Subsidiaries is a party to or
otherwise bound by any collective bargaining Contract with a labor
union or labor organization, nor is any such Contract presently
being negotiated. Since January 1, 2016 to the date hereof, there
has not been any campaign to organize any of the employees of Inuvo
or any of its Subsidiaries for the purposes of forming a labor
union or labor organization or selecting a labor union or labor
organization as a collective bargaining representative and, to the
Knowledge of Inuvo, there are no campaigns or other efforts being
conducted to organize employees of Inuvo or any of its Subsidiaries
for the purposes of forming a labor union or labor organization or
selecting a labor union or labor organization as a collective
bargaining representative.
(c)
Inuvo has
identified in
Section
5.23(c)
of the Inuvo Disclosure Schedule and has made
available to CPT in the Inuvo Data Room true and complete copies of
(i) all severance and employment agreements with directors,
officers or employees of or consultants to Inuvo or any of its
Subsidiaries; (ii) all severance programs and policies of each
of Inuvo and each of its Subsidiaries with or relating to its
employees; and (iii) all plans, programs, agreements and other
arrangements of Inuvo and each of its Subsidiaries with or relating
to its directors, officers, employees or consultants which contain
change in control provisions. Except as set forth in
Section 5.23(c)
of the Inuvo
Disclosure Schedule, or as otherwise provided in this Agreement, in
no event will the execution and delivery of this Agreement or any
other related agreement, the consummation of the transactions
contemplated hereby or thereby, or Required Inuvo Stockholder Vote
(either alone or in conjunction with any other event, such as
termination of employment) (x) result in any payment
(including, without limitation, severance, unemployment
compensation, parachute or otherwise) becoming due to any director
or any employee of Inuvo or any of its Subsidiaries or Affiliates
from Inuvo or any of its Subsidiaries or Affiliates under any Inuvo
Benefit Plan or otherwise, (y) significantly increase any
benefits otherwise payable under any Inuvo Benefit Plan or
otherwise, or (z) result in any acceleration of the time of
payment or vesting of any benefits.
(d)
Inuvo has made
available to CPT, as of the date hereof, a list of the names of all
current directors, officers, employees and consultants currently
employed or engaged by Inuvo and its Subsidiaries and who have
received payment by way of compensation from Inuvo or its
Subsidiaries in excess of $100,000 during the current fiscal year,
together with their respective salaries or wages, other
compensation, dates of employment or service with Inuvo or its
Subsidiaries, seniority, exemption classification, any union
membership, and current positions and identifies all written
agreements between Inuvo or its Subsidiaries and such individuals
(other than any of the following agreements in Inuvo or its
Subsidiaries’ standard form: (i) offer letters for
employment; (ii) proprietary rights assignment agreements;
(iii) stock option agreements; or (iv) restricted stock
purchase agreements) concerning their employment, consulting or
independent contractor relationship with Inuvo.
Section
5.24
Insurance
.
Section 5.24
of the
Inuvo Disclosure Schedule contains an accurate and complete list of
all policies and programs of insurance providing coverage for Inuvo
together with its Subsidiaries, including the name of the insurer,
type of insurance or coverage, and the amount of coverage and any
retention or deductible of Inuvo or any Subsidiary. All premiums
due and payable under all such policies and bonds have been paid
and Inuvo and its Subsidiaries are otherwise in compliance in all
material respects with the terms of such policies and bonds. Except
as set forth in
Section
5.24
of the Inuvo Disclosure Schedule, neither Inuvo nor any
of its Subsidiaries maintains any material self-insurance or
co-insurance programs. Neither Inuvo nor any of its Subsidiaries
has any material disputed claim or claims with any insurance
provider relating to any claim for insurance coverage under any
policy or insurance maintained by Inuvo or any of its Subsidiaries.
No notice of cancellation, termination or reduction in coverage has
been received by Inuvo or any Subsidiary with respect to any policy
listed in
Section
5.24
of the Inuvo Disclosure Schedule.
Section
5.25
Real Property.
.
(a)
Inuvo owns no real
property.
(b)
Section 5.25(b)
of the Inuvo
Disclosure Schedule sets forth a complete list of all material real
property leased by Inuvo or any of its Subsidiaries as of the date
hereof (“
Inuvo Material
Leased Real Property
”). A copy of the lease, including
all amendments, extensions, renewals, guaranties and other
agreements for each Inuvo Material Leased Real Property (the
“
Inuvo Leases
”)
has been made available to CPT in the Inuvo Data Room. With respect
to each of the Inuvo Leases: (i) such Inuvo Lease is legal,
valid, and binding on Inuvo or its Subsidiary party thereto, and,
to the Knowledge of Inuvo, each other Person party thereto, and is
enforceable and in full force and effect, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at law);
(ii) except as set forth in
Section 5.25(b)
of the Inuvo
Disclosure Schedule, the transactions contemplated by this
Agreement do not require the consent of any other party to such
Inuvo Lease, will not result in a breach of or default under such
Inuvo Lease, or otherwise cause such Inuvo Lease to cease to be
legal, valid, binding, enforceable and in full force and effect on
identical terms following the Closing; (iii) neither Inuvo nor
any of its Subsidiaries, as the case may be, nor any other party to
Inuvo Lease is in material breach or default under such Inuvo
Lease, and no event has occurred or failed to occur or circumstance
exists which, with the delivery of notice, the passage of time or
both, would constitute such a breach or default, or permit the
termination, modification or acceleration of rent under such Inuvo
Lease; (iv) the other party to such Inuvo Lease is not an
Affiliate of, and otherwise does not have any economic interest in,
Inuvo or any of its Subsidiaries; (v) neither Inuvo nor any of
its Subsidiaries, as the case may be, has subleased, licensed or
otherwise granted any Person the right to use or occupy such Inuvo
Material Leased Real Property or any portion thereof; and
(vi) neither Inuvo nor any of its Subsidiaries, as the case
may be, has collaterally assigned or granted any other security
interest in such Inuvo Lease or any interest therein.
(c)
Inuvo and each of
its Subsidiaries has good and valid leasehold interest to all Inuvo
Material Leased Real Property, free and clear of all Liens of any
nature whatsoever, except (i) Liens for current Taxes,
payments of which are not yet delinquent or are being disputed in
good faith, (ii) liens in respect of pledges or deposits under
workers’ compensation laws or similar legislation, or
(iii) liens imposed by law and incurred in the ordinary course
of business for obligations not past due, and liens, encumbrances
and defects in title, that in each case do not materially detract
from the value or use of the property subject thereto.
(d)
Except as set forth
in
Section 5.25(d)
of the Inuvo Disclosure Schedule, the present use of the land,
buildings, structures and improvements on Inuvo Material Leased
Real Property are, in all material respects, in conformity with all
Laws, including all applicable zoning Laws, ordinances and
regulations and with all registered deeds or other restrictions of
record, and neither Inuvo nor any of its Subsidiaries, as the case
may be, has received any written notice of material violation
thereof. Neither Inuvo nor any of its Subsidiaries, as the case may
be, has received any written notice of any material conflict or
dispute with any regulatory authority or other Person relating to
any Inuvo Material Leased Real Property or the activities thereon,
other than where there is no current or reasonably likely material
interference with the operations Inuvo Material Leased Real
Property as presently conducted (or as would be conducted at full
capacity).
(e)
Neither Inuvo nor
any of its Subsidiaries, as the case may be, has received any
notice from any insurance company of any material defects or
inadequacies in Inuvo Material Leased Real Property or any part
thereof, which would materially and adversely affect the
insurability of the same or of any termination or threatened (in
writing) termination of any policy of insurance relating to any
such Inuvo Material Leased Real Property.
Section
5.26
Assets
.
Except as disclosed in
Section 5.26
of the Inuvo
Disclosure Schedule, Inuvo and its Subsidiaries have good and valid
title to, or, in the case of leased properties and assets, valid
leasehold interests in, all of their properties and assets, real
and personal, used or held for use in their businesses located on
their premises or shown on the consolidated balance sheet of Inuvo
and its subsidiaries as of the Inuvo Balance Sheet Date or acquired
thereafter, free and clear of any Liens. Except as disclosed in
Section 5.26
of the
Inuvo Disclosure Schedule, Inuvo’s and each of its
Subsidiary’s buildings, equipment and other tangible assets
are in good operating condition (normal wear and tear excepted) and
are fit for use in the ordinary course of their respective
businesses, consistent with past use and practice. Except as
disclosed in
Section
5.26
of the Inuvo Disclosure Schedule, the furniture,
fixtures, equipment, vehicles and other items of tangible personal
property of Inuvo and its Subsidiaries are structurally sound, are
in good operating condition and repair, and are adequate for the
uses to which they are being put, consistent with past use and
practice. Except as disclosed in
Section 5.26
of the Inuvo
Disclosure Schedule, the furniture, fixtures, equipment, vehicles
and other items of tangible personal property currently owned or
leased by Inuvo or its Subsidiaries, together with all other
properties and assets of Inuvo and its Subsidiaries, are sufficient
for the conduct of Inuvo’s business as of the date hereof in
substantially the same manner as conducted prior to the date hereof
and constitute all of the rights, property and assets necessary to
conduct the business of Inuvo as currently conducted as of the date
hereof.
Section
5.27
Takeover
Laws
. Inuvo has taken
all action necessary to exempt this Agreement and the transactions
contemplated hereby, including the Inuvo Merger, from the
provisions of Section 78.378
et seq.
of the NRS. No other
anti-takeover, “fair price”, “moratorium”,
“control share acquisition”, “business
combination” or other similar statute or regulation applies
or purports to apply to this Agreement or the transactions
contemplated hereby. Inuvo does not have any stockholder rights
plan or “poison pill” in effect, including without
limitation any agreement with a third-party trust or fiduciary
entity with respect thereto.
Section
5.28
Books
and Records
. The minute books
and stock record books of Inuvo and each of its
Subsidiaries, all of which have been made available to CPT, are
materially complete and correct. The minute books of Inuvo contain
accurate and complete records of all meetings, and actions taken by
written consent of, the stockholders, the board of directors,
and any committees of the board of directors of Inuvo, and no
meeting, or action taken by written consent, of any
such stockholders, board of directors, or committee has been
held for which minutes have not been prepared and are not contained
in such minute books. At the Closing, all of those books and
records will be in the possession of Inuvo. The accounting,
financial reporting, and business books and records of Inuvo and
each of its Subsidiaries accurately and fairly reflect in all
material respects the business and condition of Inuvo and its
Subsidiaries and the transactions and the assets and liabilities of
Inuvo and its Subsidiaries with respect thereto.
Section
5.29
Information
Supplied
. The information
supplied or to be supplied by Inuvo in writing expressly for
inclusion in the Form S-4 will not, at the time the Form S-4 is
declared effective by the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading, except that no representation or warranty is made
by Inuvo with respect to statements made therein based on
information supplied by CPT in writing expressly for inclusion
therein. The information supplied by Inuvo in writing expressly for
inclusion in the Joint Proxy Statement/Prospectus will not, at the
time the Joint Proxy Statement/Prospectus is first mailed to Inuvo
stockholders and at the time of the Inuvo Stockholders’
Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they are made, not misleading, except
that no representation or warranty is made by Inuvo with respect to
statements made therein based on information supplied by CPT in
writing expressly for inclusion therein.
Section
5.30
No
Additional Representations
. Except for the
representations and warranties contained in this
Article V
, Parent, CPT, CPT
Merger Sub and Inuvo Merger Sub acknowledges that none of Inuvo nor
any other Person on behalf of either Inuvo makes any other express
or implied representation or warranty with respect to Inuvo or with
respect to any other information provided to CPT (other than
information provided to CPT specifically referred to in any of the
representations and warranties contained in this
Article V
), including any
information, documents, projections, forecasts or other material
made available to CPT or any CPT Representative or management
presentations in expectation of the transactions contemplated by
this Agreement, including with respect to the completeness,
accuracy or currency of any such information. Inuvo disclaims any
other representations or warranties, whether made by Inuvo or any
other Person.
ARTICLE
VI
COVENANTS
Section
6.1
Conduct
of Business by CPT Pending the Closing
. From the
Execution Date through the Effective Time, except as expressly
contemplated by the terms of this Agreement, CPT shall, and shall
cause each of its Subsidiaries to, (i) conduct its business in
the ordinary course of business consistent with past practice in
all material respects and in compliance in all material respects
with all applicable Laws, (ii) use commercially reasonable
efforts to preserve intact their respective business organizations
and goodwill, keep available the services of their respective
present officers, employees and independent contractors, and
preserve the goodwill and business relationships with customers,
suppliers, licensors, licensees and others having business
relationships with them and (iii) not take any action which
would adversely affect or delay in any material respect the ability
of either Inuvo or CPT to obtain any necessary approvals of any
regulatory agency or other Governmental Entity required for the
transactions contemplated hereby. In addition, and without limiting
the generality of the foregoing, from the Execution Date through
the Effective Time, except as expressly contemplated by the terms
of this Agreement, as required by applicable Law and except as set
forth in
Section
6.1
of the CPT Disclosure Schedule, CPT shall not, and shall
not permit any of its Subsidiaries to, do any of the following
outside of the ordinary course of business consistent with past
practices without the prior written consent of Inuvo (which consent
shall not be unreasonably withheld, conditioned or delayed) and
which consent shall not be required in the event that the
withholding of Inuvo’s consent would cause a CPT Material
Adverse Effect:
(a)
(i) amend or
propose to amend the certificate of incorporation or bylaws or
similar governing documents of CPT or any of its Subsidiaries,
(ii) redeem, split, combine or reclassify their outstanding
capital stock or issue or authorize the issuance of any other
security in respect or, in lieu of, or in substitution for, shares
of its capital stock, (iii) declare, set aside, make or pay
any dividend or other distribution, payable in cash, stock,
property or otherwise, (iv) create any Subsidiary or alter
(through merger, liquidation, reorganization, restructuring or in
any other fashion) the corporate structure or ownership of CPT or
any of its Subsidiaries, or (v) enter into any agreement with
respect to the voting of its capital stock or other securities held
by CPT or any of its Subsidiaries;
(b)
issue, sell,
pledge, dispose of, grant, encumber, or agree to issue, sell,
pledge, dispose of, grant or encumber any shares of any class of
capital stock of CPT or any of its Subsidiaries, or any options,
warrants or rights of any kind to acquire any shares of, their
capital stock of any class or any debt or equity securities
convertible into or exchangeable for such capital stock, except
that CPT may issue (i) up to
500,000
shares of CPT Common
Stock, at a price per share of not less than $9.21, in the ordinary
course of current securities offerings being conducted by CPT, (ii)
up to 25,657 shares of CPT Common Stock issuable upon exercise of
CPT Convertible Notes outstanding on the Execution Date
(collectively, the “
Post
Execution Date CPT Stock Issuances
”), (iii) CPT Common
Stock upon exercise of CPT Stock Options and CPT Warrants
outstanding on the date hereof in accordance with their present
terms, (iv) Warrants to purchase up to 130,000 shares of CPT Common
Stock at an exercise price per share of not less than $9.21; (v)
Warrants to purchase up to 55,693 shares of CPT Common Stock at an
exercise price per share of $7.50; (vi) 85,684 shares of CPT Common
Stock in connection with certain commitments of CPT;
(c)
(i) issue any
debt securities, incur, guarantee or otherwise become contingently
liable with respect to any indebtedness for borrowed money or enter
into any arrangement having the economic effect of any of the
foregoing, (ii) make any loans, advances or capital
contributions to, or investments in, any Person, or
(iii) redeem, purchase, acquire or offer to purchase or
acquire any shares of its capital stock, or the capital stock of
its Subsidiaries, or any options, warrants or rights to acquire any
of its capital stock or any security convertible into or
exchangeable for its capital stock, or the capital stock of its
Subsidiaries;
(d)
(i) acquire
or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or
by any other manner, any business or any corporation, limited
liability company, partnership, association or other business
organization or division thereof or otherwise acquire or agree to
acquire any assets other than in the ordinary course of business
consistent with past practice, or (ii) authorize, make or
agree to make any new capital expenditure or expenditures, or enter
into any Contract or arrangement that reasonably may result in
payments by or Liabilities of CPT, in excess of $1,000,000
individually or $5,000,000 in the aggregate in any twelve (12)
month period;
(e)
sell, pledge,
assign, dispose of, transfer, lease, securitize, or encumber any
businesses, properties or assets of CPT or its
Subsidiaries;
(f)
except as required
by any CPT Benefit Plan or CPT Material Contract existing on the
date hereof, (i) increase the compensation payable or to
become payable (including bonus grants) or increase or accelerate
the vesting of the benefits provided to its directors, officers or
employees or other service providers, except for increases in the
ordinary course of business and consistent with past practice in
salaries or wages of employees of CPT or any of its Subsidiaries
who are not directors or executive officers of CPT, (ii) grant
any severance or termination pay or benefits to, or enter into any
employment, severance, retention, change in control, consulting or
termination agreement with, any director, officer or other employee
or other service providers of CPT or of any of CPT’s
Subsidiary, (iii) establish, adopt, enter into or amend any
collective bargaining, bonus, profit-sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of
any director, officer or employee or other service providers, or
(iv) pay or make, or agree to pay or make, any accrual or
arrangement for payment of any pension, retirement allowance, or
any other employee benefit;
(g)
knowingly violate
or knowingly fail to perform any obligation or duty imposed upon it
by any applicable federal, state, local or foreign Law, rule,
regulation, guideline or ordinance, or under any order, settlement
agreement or judgment;
(h)
announce,
implement or effect any reduction in labor force, lay-off, early
retirement program, severance program or other program or effort
concerning the termination of employment of employees of CPT or any
of its Subsidiaries;
(i)
make any change to
accounting policies or procedures, other than actions required to
be taken by GAAP;
(j)
prepare or file
any Tax Return inconsistent with past practice or, on any Tax
Return, take any position, make any election, or adopt any method
inconsistent with positions taken, elections made or methods used
in preparing or filing similar Tax Returns in prior
periods;
(k)
except for
immaterial elections or changes, make or change any express or
deemed election related to Taxes, change an annual accounting
period, adopt or change any method of accounting, file an amended
Tax Return, surrender any right to claim a refund of Taxes, consent
to any extension or waiver of the limitation period applicable to
any Tax Proceedings relating to CPT or any of its
Subsidiaries;
(l)
except as would
not reasonably be expected to be materially adverse to CPT and its
Subsidiaries taken as a whole, commence any litigation or
Proceedings with respect to Taxes, settle or compromise any
Proceedings with respect to Taxes;
(m)
(i) enter
into a new line of business which is material to CPT and its
Subsidiaries taken as a whole or (ii) open or close any
facility or office of CPT or any of its Subsidiaries;
(n)
pay, discharge or
satisfy any claims, Liabilities or obligations (whether or not
absolute, accrued, asserted, contingent or otherwise), other than
the payment, discharge or satisfaction, in the ordinary course of
business consistent with past practice or in accordance with their
terms, of Liabilities adequately reflected or reserved against in,
the most recent financial statements (or the notes thereto) of
CPT;
(o)
enter into, amend,
modify, permit to lapse any rights under, or terminate (i) any
agreements pursuant to which any other party is granted exclusive
marketing or other exclusive rights of any type or scope with
respect to any of its products or technology or which restricts CPT
or any of its Subsidiary or, upon completion of the Merger or any
other transaction contemplated hereby, Parent or any of its
Subsidiaries, from engaging or competing in any line of business or
in any location, (ii) any agreement or Contract with any
customer, supplier, sales representative, agent or distributor,
other than in the ordinary course of business and consistent with
past practice; (iii) arrangement with Persons that are
Affiliates or are executive officers or directors of CPT, or
(iv) any material rights or claims with respect to any
confidentiality or standstill agreement to which CPT is a party and
which relates to a business combination or other similar
extraordinary transaction, in each case, that would reasonably be
expected to, individually or in the aggregate, materially affect
the business or operations of CPT;
(p)
terminate, cancel,
amend or modify any material insurance coverage policy maintained
by CPT or any of its Subsidiaries which is not promptly replaced by
a comparable amount of insurance coverage;
(q)
commence, waive,
release, assign, settle or compromise any material claims, or any
material litigation, Proceeding or arbitration;
(r)
except as the CPT
Board determines in good faith is necessary to comply with its
fiduciary duties, take any action to (i) render inapplicable,
or to exempt any third Person from, the provisions of
Section 203 of the DGCL, or any other state takeover or
similar Law or state Law that purports to limit or restrict
business combinations or the ability to acquire or vote shares or
(ii) adopt or implement any stockholder rights agreement or
plan; or
(s)
authorize,
recommend, propose or announce an intention to do any of the
foregoing, or enter into any Contract, agreement, commitment or
arrangement to do any of the foregoing.
Section
6.2
Conduct
of Business by Inuvo Pending the Closing
. From the
Execution Date through the Effective Time, except as expressly
contemplated by the terms of this Agreement, Inuvo shall, and shall
cause each of its Subsidiaries to, (i) conduct its business in
the ordinary course of business consistent with past practice in
all material respects and in compliance in all material respects
with all applicable Laws, (ii) use commercially reasonable
efforts to preserve intact their respective business organizations
and goodwill, keep available the services of their respective
present officers, employees and independent contractors, and
preserve the goodwill and business relationships with customers,
suppliers, licensors, licensees and others having business
relationships with them and (iii) not take any action which
would adversely affect or delay in any material respect the ability
of either Inuvo or CPT to obtain any necessary approvals of any
regulatory agency or other Governmental Entity required for the
transactions contemplated hereby. In addition, and without limiting
the generality of the foregoing, from the Execution Date through
the Effective Time, except as expressly contemplated by the terms
of this Agreement, as required by applicable Law and except as set
forth in
Section
6.2
of the Inuvo Disclosure Schedule, Inuvo shall not, and
shall not permit any of its Subsidiaries to, do any of the
following outside of the ordinary course of business consistent
with past practices without the prior written consent of CPT (which
consent shall not be unreasonably withheld, conditioned or delayed
and which consent shall not be required in the event that the
withholding of CPT’s consent would cause an Inuvo Material
Adverse Effect):
(a)
(i) amend or
propose to amend the articles of incorporation or bylaws or similar
governing documents of Inuvo or any of its Subsidiaries,
(ii) redeem, split, combine or reclassify their outstanding
capital stock or issue or authorize the issuance of any other
security in respect or, in lieu of, or in substitution for, shares
of its capital stock, (iii) declare, set aside, make or pay
any dividend or other distribution, payable in cash, stock,
property or otherwise, (iv) create any Subsidiary or alter
(through merger, liquidation, reorganization, restructuring or in
any other fashion) the corporate structure or ownership of Inuvo or
any of its Subsidiaries, or (v) enter into any agreement with
respect to the voting of its capital stock or other securities held
by Inuvo or any of its Subsidiaries;
(b)
issue, sell,
pledge, dispose of, grant, encumber, or agree to issue, sell,
pledge, dispose of, grant or encumber any shares of any class of
capital stock of Inuvo or any of its Subsidiaries, or any options,
warrants or rights of any kind to acquire any shares of, their
capital stock of any class or any debt or equity securities
convertible into or exchangeable for such capital stock, except
that Inuvo may (i) grant stock options or restricted stock units in
an amount equal to the number of stock options or restricted stock
units that are outstanding on the date hereof, but have terminated
in accordance with their terms; and (ii) issue Inuvo Common Stock
upon exercise of Inuvo Stock Options and Inuvo RSUs outstanding on
the date hereof in accordance with their present
terms;
(c)
(i) issue any
debt securities, incur, guarantee or otherwise become contingently
liable with respect to any indebtedness for borrowed money or enter
into any arrangement having the economic effect of any of the
foregoing, (ii) make any loans, advances or capital
contributions to, or investments in, any Person, or
(iii) redeem, purchase, acquire or offer to purchase or
acquire any shares of its capital stock, or the capital stock of
its Subsidiaries, or any options, warrants or rights to acquire any
of its capital stock or any security convertible into or
exchangeable for its capital stock, or the capital stock of its
Subsidiaries;
(d)
(i) acquire
or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or
by any other manner, any business or any corporation, limited
liability company, partnership, association or other business
organization or division thereof or otherwise acquire or agree to
acquire any assets other than in the ordinary course of business
consistent with past practice, or (ii) authorize, make or
agree to make any new capital expenditure or expenditures, or enter
into any Contract or arrangement that reasonably may result in
payments by or Liabilities of Inuvo, in excess of $1,000,000
individually or $5,000,000 in the aggregate in any twelve (12)
month period;
(e)
sell, pledge,
assign, dispose of, transfer, lease, securitize, or encumber any
businesses, properties or assets of Inuvo or its
Subsidiaries;
(f)
except as required
by any Inuvo Benefit Plan or Inuvo Material Contract existing on
the date hereof, (i) increase the compensation payable or to
become payable (including bonus grants) or increase or accelerate
the vesting of the benefits provided to its directors, officers or
employees or other service providers, except for increases in the
ordinary course of business and consistent with past practice in
salaries or wages of employees of Inuvo or any of its Subsidiaries
who are not directors or executive officers of Inuvo,
(ii) grant any severance or termination pay or benefits to, or
enter into any employment, severance, retention, change in control,
consulting or termination agreement with, any director, officer or
other employee or other service providers of Inuvo or of any of
Inuvo’s Subsidiary, (iii) establish, adopt, enter into
or amend any collective bargaining, bonus, profit-sharing, thrift,
compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, severance or other
plan, agreement, trust, fund, policy or arrangement for the benefit
of any director, officer or employee or other service providers, or
(iv) pay or make, or agree to pay or make, any accrual or
arrangement for payment of any pension, retirement allowance, or
any other employee benefit;
(g)
knowingly violate
or knowingly fail to perform any obligation or duty imposed upon it
by any applicable federal, state, local or foreign Law, rule,
regulation, guideline or ordinance, or under any order, settlement
agreement or judgment;
(h)
announce,
implement or effect any reduction in labor force, lay-off, early
retirement program, severance program or other program or effort
concerning the termination of employment of employees of Inuvo or
any of its Subsidiaries;
(i)
make any change to
accounting policies or procedures, other than actions required to
be taken by GAAP;
(j)
prepare or file
any Tax Return inconsistent with past practice or, on any Tax
Return, take any position, make any election, or adopt any method
inconsistent with positions taken, elections made or methods used
in preparing or filing similar Tax Returns in prior
periods;
(k)
except for
immaterial elections or changes, make or change any express or
deemed election related to Taxes, change an annual accounting
period, adopt or change any method of accounting, file an amended
Tax Return, surrender any right to claim a refund of Taxes, consent
to any extension or waiver of the limitation period applicable to
any Tax Proceedings relating to Inuvo or any of its
Subsidiaries;
(l)
except as would
not reasonably be expected to be materially adverse to Inuvo and
its Subsidiaries taken as a whole, commence any litigation or
Proceedings with respect to Taxes, settle or compromise any
Proceedings with respect to Taxes;
(m)
(i) enter
into a new line of business which is material to Inuvo and its
Subsidiaries taken as a whole or (ii) open or close any
facility or office of Inuvo or any of its
Subsidiaries;
(n)
pay, discharge or
satisfy any claims, Liabilities or obligations (whether or not
absolute, accrued, asserted, contingent or otherwise), other than
the payment, discharge or satisfaction, in the ordinary course of
business consistent with past practice or in accordance with their
terms, of Liabilities adequately reflected or reserved against in,
the most recent financial statements (or the notes thereto) of
Inuvo;
(o)
amend, modify or
consent to the termination of any Inuvo Material Contract, or
amend, waive, modify or consent to the termination of Inuvo’s
or any of its Subsidiary’s rights thereunder;
(p)
enter into, amend,
modify, permit to lapse any rights under, or terminate (i) any
agreements pursuant to which any other party is granted exclusive
marketing or other exclusive rights of any type or scope with
respect to any of its products or technology or which restricts
Inuvo or any of its Subsidiary or, upon completion of the Merger or
any other transaction contemplated hereby, Parent or any of its
Subsidiaries, from engaging or competing in any line of business or
in any location, (ii) any agreement or Contract with any
customer, supplier, sales representative, agent or distributor,
other than in the ordinary course of business and consistent with
past practice; (iii) arrangement with Persons that are
Affiliates or are executive officers or directors of Inuvo, or
(iv) any material rights or claims with respect to any
confidentiality or standstill agreement to which Inuvo is a party
and which relates to a business combination or other similar
extraordinary transaction, in each case, that would reasonably be
expected to, individually or in the aggregate, materially affect
the business or operations of Inuvo;
(q)
terminate, cancel,
amend or modify any material insurance coverage policy maintained
by Inuvo or any of its Subsidiaries which is not promptly replaced
by a comparable amount of insurance coverage;
(r)
commence, waive,
release, assign, settle or compromise any material claims, or any
material litigation, Proceeding or arbitration;
(s)
except as the
Inuvo Board determines in good faith is necessary to comply with
its fiduciary duties, take any action to (i) render
inapplicable any state takeover or similar Law or state Law that
purports to limit or restrict business combinations or the ability
to acquire or vote shares or (ii) adopt or implement any
stockholder rights agreement or plan; or
(t)
authorize,
recommend, propose or announce an intention to do any of the
foregoing, or enter into any Contract, agreement, commitment or
arrangement to do any of the foregoing.
Section
6.3
Access to Information; Confidentiality.
(a)
Each of Inuvo and
CPT shall afford to each other’s officers, employees,
accountants, counsel, financial advisors, and other
representatives, reasonable access (subject to applicable Laws
regarding the sharing of such information), during normal business
hours, and upon reasonable prior notice, during the period from the
Execution Date through the Effective Time or the termination of
this Agreement, to its properties, books and records, contracts,
commitments and personnel in a manner commensurate with due
diligence conducted by any Party prior to the date hereof. Any
investigation conducted pursuant to the access contemplated by this
Section 6.3(a)
shall be conducted in a manner that does not unreasonably interfere
with the conduct of the business of the Parties or their respective
Subsidiaries, as the case may be, or create a risk of damage or
destruction to any property or assets of the Parties or their
respective Subsidiaries. During such period, CPT and Inuvo shall
furnish or make available promptly to each other (except as
otherwise available on EDGAR) (i) a copy of each report,
schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of
federal or state securities laws; and (ii) all other
information concerning its business, properties, assets and
personnel as the other may reasonably request. Notwithstanding the
foregoing, Inuvo and CPT may restrict or otherwise prohibit access
to any documents or information to the extent that access to such
documents or information would risk waiver of any attorney-client
privilege, work product doctrine or other applicable privilege
applicable to such documents or information. Except as otherwise
required by applicable Law, all information obtained by Inuvo and
CPT, and their respective Subsidiaries, pursuant to this
Section 6.3(a)
shall be kept confidential in accordance with the confidentiality
agreement, dated May 17, 2018, by and between Inuvo and CPT (the
“
Confidentiality
Agreement
”) or any other similar agreement among the
Parties.
(b)
CPT shall consult
with Inuvo regarding its business in a prompt manner and on a
regular basis. In addition, CPT and its officers and employees
shall reasonably cooperate with Inuvo in, and shall permit Inuvo to
participate in any discussions or negotiations relating to, the
execution or amendment of any CPT Material Contract.
(c)
No information or
knowledge obtained in any investigation pursuant to this
Section 6.3
or
otherwise shall affect or be deemed to modify any representation or
warranty contained in this Agreement or the conditions to the
obligations of the parties to consummate the Merger.
(d)
CPT shall not
disclose the unredacted terms of any Material Inuvo Contract to any
Person other than to CPT’s counsel.
Section
6.4
Employee
Matters.
(a)
Promptly following
the Execution Date, CPT and Inuvo shall reasonably cooperate to
develop communication to the employees of CPT and its Subsidiaries
concerning the Mergers, including responses to anticipated employee
questions and concerns.
(b)
At the Closing,
Parent shall enter into an employment agreement with Don Walker
Barrett III, the Chief Operating Officer of Inuvo, upon terms and
conditions substantially similar to other business unit lead
executive officers of CPT.
Section
6.5
Joint Proxy Statement/Prospectus; Registration
Statement.
(a)
Inuvo and CPT shall
each use their reasonable best efforts to jointly prepare and file
with the SEC the Joint Proxy Statement/Prospectus and the
Registration Statement within twenty (20) Business Days following
the Execution Date. Each of Inuvo and CPT shall provide as promptly
as practicable to the other such information concerning its
business affairs and Financial Statements as, in the reasonable
judgment of the providing Party or its counsel, may be required or
appropriate for inclusion in the Joint Proxy Statement/Prospectus
and the Registration Statement, or in any amendments or supplements
thereto, shall cause its counsel to cooperate with the other
Party’s counsel in the preparation of the Joint Proxy
Statement/Prospectus and the Registration Statement and shall
request the cooperation of such Party’s auditors in the
preparation of the Joint Proxy Statement/Prospectus and the
Registration Statement. Each of Inuvo and CPT shall respond to any
comments of the SEC and shall use their reasonable best efforts to
have the Registration Statement declared effective under the
Securities Act as promptly as practicable after such filings, and
each of Inuvo and CPT will provide the other with a reasonable
opportunity to review and comment (which comments will be
considered by the other Party in good faith) on any amendment or
supplement to the Joint Proxy Statement/Prospectus or the
Registration Statement prior to the filing thereof with the SEC.
CPT and Inuvo shall cause the Joint Proxy Statement/Prospectus to
be mailed to their respective stockholders at the earliest
practicable time after the Registration Statement is declared
effective under the Securities Act. Each of Inuvo and CPT shall
notify the other promptly upon the receipt of any comments from the
SEC or its staff or any other government officials and of any
request by the SEC or its staff or any other government officials
for amendments or supplements to the Registration Statement, the
Joint Proxy Statement/Prospectus or any filing pursuant to this
Section 6.5(a)
or
for additional information and shall supply the other with copies
of all correspondence between such Party or any of its
Representatives, on the one hand, and the SEC, or its staff or any
other government officials, on the other hand, with respect to the
Registration Statement, the Joint Proxy Statement/Prospectus, the
Mergers or any filing pursuant to
Section 6.5(b)
. Each of Inuvo
and CPT shall cause all documents that it is responsible for filing
with the SEC or other regulatory authorities under this
Section 6.5(a)
to
comply as to form and substance as to such Party in all material
respects with all applicable Laws.
(b)
If, at any time
prior to the Effective Time, any information is discovered or any
event occurs with respect to Inuvo, CPT or any of their respective
Subsidiaries, or any change occurs with respect to the other
information included in the Registration Statement or the Joint
Proxy Statement/Prospectus which is required to be described in an
amendment of, or a supplement to, the Registration Statement or the
Joint Proxy Statement/Prospectus so that such document does not
include any misstatement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, then
(i) the Party learning of such information shall notify the
other Parties as promptly as practicable of such event, and Inuvo
and CPT shall as promptly as practicable file with the SEC any
necessary amendment or supplement to the Registration Statement or
the Joint Proxy Statement/Prospectus, respectively, and
(ii) Inuvo and CPT shall (A) use their reasonable best
efforts to have such amendment or supplement cleared for mailing as
soon as practicable and (B) as required by applicable Law,
disseminate the information contained in such amendment or
supplement to holders of CPT Common Stock and Inuvo Common Stock;
provided, however
, that no
amendment or supplement will be filed and no such information shall
be otherwise disseminated without prior consultation between Inuvo
and CPT and providing Inuvo and CPT with a reasonable opportunity
to review and comment on such amendment or supplement.
(c)
Inuvo shall
provide CPT on a confidential, non-reliance basis for informational
purposes only, a copy of the fairness opinion from the Inuvo
Financial Advisor stating that the Inuvo Merger Consideration is
fair from a financial point of view to the holders of Inuvo Common
Stock electing to receive Parent Common Stock, as of the date of
the fairness opinion; provided, that CPT has executed a
non-reliance release letter reasonably acceptable to the Inuvo
Financial Advisor prior to the receipt of the fairness opinion, and
CPT shall not disclose the fairness opinion, its contents or the
identity of Inuvo Financial Advisor, including in the Joint Proxy
Statement/Prospectus or the Registration Statement, except as
required by applicable Law or as otherwise agreed to by Inuvo and
the Inuvo Financial Advisor.
Section
6.6
Meetings of Stockholders; Board Recommendations.
(a)
CPT, acting through
the CPT Board, shall take all actions in accordance with the DGCL,
the CPT Certificate of Incorporation or the CPT Bylaws or similar
governing documents of CPT and all applicable Laws to promptly and
duly call, give notice of, convene and hold as promptly as
practicable, and in any event within forty-five (45) days after the
declaration of effectiveness of the Registration Statement, the CPT
Stockholders’ Meeting for the purpose of considering and
voting upon CPT Voting Proposal. Subject to
Section 6.12(b)
, (i) the
CPT Board shall recommend approval and adoption of this Agreement
and the CPT Merger by the stockholders of CPT(the
“
CPT Voting
Proposal
”) and include such recommendation in the
Joint Proxy Statement/Prospectus, (ii) neither the CPT Board
nor any committee thereof shall effect a Change in Recommendation
and (iii) CPT shall use its reasonable best efforts to solicit
from its stockholders proxies in favor of the CPT Voting Proposal
and shall take all other action reasonably necessary or advisable
to secure the Required CPT Stockholder Vote. Without limiting the
generality of the foregoing, (x) CPT agrees that its
obligation to duly call, give notice of, convene and hold a meeting
of the holders of CPT Common Stock, as required by this
Section 6.6(a)
,
shall not be affected by the withdrawal, amendment or modification
of the recommendation by the CPT Board or committee thereof,
including a Change in Recommendation, pursuant to the provisions
contained in
Section
6.12(b)
, (y) CPT agrees that its obligations pursuant to
this
Section
6.6(a)
shall not be affected by the commencement, public
proposal, public disclosure or communication to CPT of any CPT
Takeover Proposal and (z) notwithstanding any Change in
Recommendation, unless this Agreement is validly terminated
pursuant to, and in accordance with,
Article VIII
, this Agreement
shall be submitted to the holders of CPT’s Common Stock for
the purpose of obtaining the Required CPT Stockholder
Vote.
(b)
Inuvo, acting
through the Inuvo Board, shall take all actions in accordance with
the NRS, the Inuvo Articles of Incorporation or Inuvo Bylaws or
similar governing documents of Inuvo and all applicable Laws to
promptly and duly call, give notice of, convene and hold as
promptly as practicable, and in any event within forty-five (45)
days after the declaration of effectiveness of the Registration
Statement, the Inuvo Stockholders’ Meeting for the purpose of
considering and voting upon the Inuvo Voting Proposal. Subject to
Section 6.12(b)
,
(i) the Inuvo Board shall recommend approval and adoption of
this Agreement and the Inuvo Merger by the stockholders of Inuvo
(the “
Inuvo Voting
Proposal
”) and include such recommendation in the
Joint Proxy Statement/Prospectus, (ii) neither the Inuvo Board
nor any committee thereof shall effect a Change in Recommendation
and (iii) Inuvo shall use its reasonable best efforts to
solicit from its stockholders proxies in favor of the Inuvo Voting
Proposal and shall take all other action reasonably necessary or
advisable to secure the Required Inuvo Stockholder Vote. Without
limiting the generality of the foregoing, (x) Inuvo agrees
that its obligation to duly call, give notice of, convene and hold
a meeting of the holders of Inuvo Common Stock, as required by this
Section 6.6(b)
,
shall not be affected by the withdrawal, amendment or modification
of the recommendation by the Inuvo Board or committee thereof,
including a Change in Recommendation, pursuant to the provisions
contained in
Section
6.12(b)
, (y) Inuvo agrees that its obligations pursuant to
this
Section
6.6(b)
shall not be affected by the commencement, public
proposal, public disclosure or communication to CPT of any CPT
Takeover Proposal and (z) notwithstanding any Change in
Recommendation, unless this Agreement is validly terminated
pursuant to, and in accordance with,
Article VIII
, this Agreement
shall be submitted to the holders of Inuvo’s Common Stock for
the purpose of obtaining the Required Inuvo Stockholder
Vote.
(c)
Nothing contained
in this
Section
6.6
or otherwise contained in this Agreement shall be deemed
to prohibit Inuvo from taking and disclosing to its stockholders a
position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or complying with the provisions of Rule 14d-9
promulgated under the Exchange Act or making any disclosure to its
stockholders in order to comply with the Inuvo Board’s
fiduciary duties to its stockholders under the NRS.
(d)
Unless otherwise
mutually agreed upon by the Parties, the Parties shall use
reasonable best efforts to cause the respective record dates and
meeting dates for CPT Stockholders’ Meeting and for the Inuvo
Stockholders’ Meeting to be the same.
(e)
Except to the
extent required by applicable Laws, CPT shall not (i) change
the date specified in the Joint Proxy Statement/Prospectus for CPT
Stockholders’ Meeting or (ii) postpone, delay or adjourn
CPT Stockholders’ Meeting without the consent of Inuvo (not
to be unreasonably withheld, delayed or conditioned), except, in
each case, after consultation with Inuvo, (A) to the extent
necessary (as determined in good faith by the CPT Board following
consultation with outside counsel) to ensure that any amendment or
supplement to the Joint Proxy Statement/Prospectus required by
applicable Laws is provided to the stockholders of CPT sufficiently
in advance of CPT Stockholders’ Meeting; (B) if there
are an insufficient number of shares of CPT Common Stock
represented in person or by proxy at CPT Stockholders’
Meeting to constitute a quorum or to adopt this Agreement, in which
case CPT may adjourn the CPT Stockholders’ Meeting and use
its reasonable best efforts to obtain a quorum and the Required CPT
Stockholder Vote as promptly as practicable in the prevailing
circumstances; (C) to a date not less than three (3) Business
Days after the expiration of any five-Business Day period
contemplated by
Section
6.12(b)(ii)
; or (D) to a date not less than five (5)
Business Days after a Change in Recommendation effected pursuant to
Section
6.12(b)(iii)
. Except to the extent required by applicable
Law, Inuvo shall not (i) change the date specified in the
Joint Proxy Statement/Prospectus for the Inuvo Stockholders’
Meeting or (ii) postpone, delay or adjourn the Inuvo
Stockholders’ Meeting without the consent of CPT (not to be
unreasonably withheld, delayed or conditioned) except, in each
case, after consultation with CPT, (A) to the extent necessary
to ensure that any amendment or supplement to the Joint Proxy
Statement/Prospectus required by applicable Law is provided to the
stockholders of Inuvo sufficiently in advance of the Inuvo
Stockholders’ Meeting; (B) if there are an insufficient
number of shares of Inuvo Stock represented in person or by proxy
at the Inuvo Stockholders’ Meeting to constitute a quorum, in
which case Inuvo may adjourn the Inuvo Stockholders’ Meeting
and use its reasonable best efforts to obtain a quorum and the
Required Inuvo Stockholder Vote as promptly as practicable in the
prevailing circumstances; (C) to a date not less than three
(3) Business Days after the expiration of any five-Business Day
period contemplated by
Section 6.12(b)(ii)
; or
(D) to a date not less than five (5) Business Days after a
Change in Recommendation effected pursuant to
Section
6.12(b)(iii)
.
Section
6.7
Public
Announcements
. Inuvo and CPT
will provide each other a reasonable opportunity to review and make
reasonable comment upon, any press release or other public
statement with respect to this Agreement and the business
combination contemplated hereby and, except as may be required by
applicable Law or any listing agreement with, or regulation of, any
securities exchange or market on which Inuvo Common Stock or the
Parent Common Stock, as applicable, are traded or listed, will not
issue any such press release or make any such public statement
prior to receiving the other Party’s consent (which shall not
be unreasonably withheld or delayed);
provided, however
, that each of Inuvo
and Parent may make (a) subject to
Section 6.10(a)
, public
disclosure reasonably required in the public SEC filings made by
Inuvo and Parent in connection with the transactions contemplated
hereby and (b) public statements in response to specific
questions by the press, analysts, investors or those attending
industry conferences or financial analyst conference calls, so long
as any such statements are not inconsistent with previous
statements that have been mutually agreed upon by each of Inuvo and
Parent with respect to press releases, public disclosures or public
statements.
Section
6.8
Reasonable Best Efforts.
(a)
Prior to the
Closing, CPT and Inuvo shall each use their reasonable best efforts
to (i) take, or cause to be taken, all reasonable actions, and
do, or cause to be done, all reasonable things necessary and proper
under applicable Law to consummate and make effective the Merger as
promptly as practicable, (ii) obtain from any Governmental
Entity or any other third Person any consents, licenses, permits,
waivers, approvals, authorizations or orders as may be required to
be obtained or made by such Party or any of their Subsidiaries in
connection with the consummation of the Merger and the transactions
contemplated hereby, and (iii) as promptly as practicable,
make all necessary filings, if any, and thereafter make any other
required submissions, with respect to this Agreement and the
Mergers required under (A) the Securities Act and the Exchange
Act, and any other applicable federal or state securities Laws,
(B) any Antitrust Laws and any related governmental request
thereunder, and (C) any other applicable Law. CPT and Inuvo
shall cooperate with each other in connection with the making of
all such filings (subject to applicable Law regarding the sharing
of information), if any, and CPT and Inuvo and their counsel shall
be given a reasonable opportunity to review and comment upon such
filings and any amendments or supplements thereto (and shall
provide any comments thereon as soon as practicable) prior to the
filing thereof with the SEC.
(b)
CPT and Inuvo
agree, and shall cause each of their respective Subsidiaries, to
cooperate and to use their reasonable best efforts to obtain any
clearances or approvals of any Governmental Entities required for
the consummation of the Mergers under the HSR Act, the Sherman Act,
as amended, the Clayton Act, as amended, the Federal Trade
Commission Act, as amended, and any other federal, state or foreign
Law designed to prohibit, restrict or regulate actions for the
purpose or effect of monopolization or restraint of trade
(collectively “
Antitrust
Laws
”), to obtain the expiration of any applicable
waiting period under any Antitrust Law and to respond to any
government requests for information under any Antitrust Law. No
Party to this Agreement shall consent to any voluntary delay of the
consummation of the Merger at the behest of any Governmental Entity
without the consent of the other Parties to this Agreement, which
consent shall not be unreasonably withheld. CPT and Inuvo shall use
reasonable best efforts to file, as promptly as practicable, all
notifications required under the HSR Act and any applicable
international antitrust requirements.
(c)
Notwithstanding
anything to the contrary in this
Section 6.8(c)
, neither Inuvo,
nor CPT nor any of their Subsidiaries shall be required to
(i) license, divest, dispose of or hold separate any assets or
businesses of Inuvo or CPT or any of their respective Subsidiaries
or otherwise take or commit to take any action that limits its
freedom of action with respect to, or its ability to retain, any of
the assets or businesses of Inuvo or CPT or any of their respective
Subsidiaries, or that would otherwise have a material adverse
effect on the combined company or (ii) pay more than
de minimis
amounts in
connection with seeking or obtaining such consents, approvals or
authorizations as are required to complete the Mergers under
applicable Antitrust Laws (excluding any mandatory filing fees and
reasonable and customary costs and expenses associated with making
applications for, and responding to requests for information from
Governmental Entities with respect to, such required consents or
approvals).
(d)
Each of Inuvo and
CPT, as applicable, shall give (or shall cause their respective
Subsidiaries to give) any notices to third Persons, and use, and
cause their respective Subsidiaries to use, their commercially
reasonable efforts to obtain any third Person consents related to
or required in connection with the Mergers that are
(i) necessary to consummate the transactions contemplated
hereby, (ii) disclosed or required to be disclosed in the CPT
Disclosure Schedule or Inuvo Disclosure Schedule, or
(iii) required to prevent an Inuvo Material Adverse Effect or
a CPT Material Adverse Effect from occurring prior to or after the
Effective Time;
provided,
however
, that, with respect to this subsection (d), neither
CPT nor Inuvo shall offer or pay any consideration in excess of
$100,000 for all consents, approvals or waivers in the aggregate,
or make any agreement or understanding affecting the business or
the assets, properties or Liabilities of CPT or Inuvo, as the case
may be, in order to obtain any such third Person consents,
approvals or waivers, except with the prior written consent of the
other Party (which shall not be unreasonably withheld, conditioned
or delayed). If any Party shall fail to obtain any consent from a
third Person described in this subsection (d), such Party will
use its reasonable efforts, and will take any such actions
reasonably requested by the other Party hereto, to limit the
adverse effect upon CPT and Inuvo, their respective Subsidiaries,
and their respective businesses resulting, or that would reasonably
be expected to result after the consummation of the Mergers, from
the failure to obtain such consent.
(e)
Inuvo and CPT shall
each keep the other apprised of the status of matters relating to
the completion of the Mergers and work cooperatively in connection
with obtaining all required consents, authorizations, Orders or
approvals of, or any exemptions by, any Governmental Entity
undertaken pursuant to the provisions of this
Section 6.8(e)
. In that
regard, prior to the Closing, each Party shall promptly consult
with the other Parties with respect to and provide any necessary
information and assistance as the other Parties may reasonably
request with respect to (and, in the case of correspondence,
provide the other Parties (or their counsel) copies of) all
notices, submissions, or filings made by such Party with any
Governmental Entity or any other information supplied by such Party
to, or correspondence with, a Governmental Entity in connection
with this Agreement and the Mergers. Each Party shall promptly
inform the other Parties, and if in writing, furnish the other
Parties with copies of (or, in the case of oral communications,
advise the other Parties orally of) any communication from or to
any Governmental Entity regarding the Mergers, and permit the other
Parties to review and discuss in advance, and consider in good
faith the views of the other Parties in connection with, any
proposed communication with any such Governmental Entity. If any
Party or any Representative of such Parties receives a request for
additional information or documentary material from any
Governmental Entity with respect to the Merger, then such Party
shall use reasonable best efforts to make, or cause to be made,
promptly and after consultation with the other Parties to this
Agreement, an appropriate response in substantial compliance with
such request. No Party shall participate in any meeting or
teleconference with any Governmental Entity where material issues
or any matters relating to timing would likely be discussed in
connection with this Agreement and the Merger unless it consults
with the other Party in advance and, to the extent not prohibited
by such Governmental Entity, gives the other Party the opportunity
to attend and participate thereat. Without limiting the foregoing,
unless prohibited by Law or the applicable Governmental Entity,
each Party shall, on a current basis, furnish the other Parties
with copies of all correspondence, filings and communications (and
memoranda setting forth the substance thereof) between it and any
such Governmental Entity with respect to this Agreement and the
Merger, and furnish the other Parties with such necessary
information and reasonable assistance as the other Parties may
reasonably request in connection with its preparation of necessary
filings or submissions of information to any such Governmental
Entity. Notwithstanding anything to the contrary contained in this
Section 6.8(e)
,
materials provided pursuant to this
Section 6.8(e)
may be redacted
(i) to remove references concerning the valuation of CPT,
Inuvo and the Mergers or other similarly confidential information,
(ii) as necessary to comply with contractual arrangements, and
(iii) as necessary to address reasonable privilege
concerns.
Section
6.9
Notification
of Certain Matters
. Inuvo and CPT
shall promptly (and, in any event, within two (2) Business Days)
advise the other orally and in writing of any state of facts,
event, change, effect, development, condition or occurrence that,
individually or in the aggregate, has had or would reasonably be
expected to have a Inuvo Material Adverse Effect or a CPT Material
Adverse Effect, respectively. CPT shall give prompt notice to
Inuvo, and Inuvo shall give prompt notice to CPT, of (i) any
representation or warranty made by it contained in this Agreement
that is qualified as to materiality becoming untrue or inaccurate
in any respect or any such representation or warranty that is not
so qualified becoming untrue or inaccurate in any material respect
or (ii) the failure by it to comply with or satisfy in any
material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement;
provided, however
, that no such
notification shall affect the representations, warranties,
covenants or agreements of the Parties or the conditions to the
obligations of the Parties under this Agreement.
Section
6.10
Agreements
With Respect to Parent Post Closing
.
(a)
Parent agrees that
those employees of Inuvo and CPT who are actively employed by Inuvo
and CPT as of immediately prior to the Effective Time and who
continue to be actively employed by the Parent (or any Subsidiary
thereof) during such one year period (the “
Continuing Employees
”) shall be
eligible to continue to participate in the Parent’s health
and welfare benefit plans;
provided, however
, that
(i) subject to the provisions of this
Section 6.10
, nothing in this
Section 6.10
or elsewhere in this Agreement shall limit the right of Parent,
CPT, or Inuvo to amend or terminate any such health or welfare
benefit plan at any time, and (ii) if Parent, CPT, or Inuvo
terminates any such health or welfare benefit plan, then (upon
expiration of any appropriate transition period), for a period of
one year following the Effective Time the Continuing Employees
shall be eligible to participate in Parent’s, CPT’s, or
Inuvo’s, as applicable, health and welfare benefit plans to
the extent that coverage under such plans is replacing comparable
coverage under an Inuvo Benefit Plan or CPT Benefit Plan in which
such Continuing Employee participated immediately before the
Effective Time. To the extent that service is relevant for
eligibility, vesting or allowances (including paid time off) under
any health or welfare benefit plan of Parent, Inuvo, or CPT, then
Parent shall use its commercially reasonable efforts to ensure that
such health or welfare benefit plan shall, for purposes of
eligibility, vesting and allowances (including paid time off) but
not for purposes of benefit accrual, credit Continuing Employees
for service prior to the Effective Time with Inuvo or CPT, as
applicable, to the same extent that such service was recognized
prior to the Effective Time under the corresponding health or
welfare benefit plan of Inuvo or CPT, as applicable. Nothing in
this
Section 6.10
or elsewhere
in this Agreement shall be construed to create a right in any
employee to employment with Parent, Inuvo, or CPT or any other
Subsidiary of the foregoing and the employment of each Continuing
Employee shall be “at will” employment, unless
such Continuing Employee enters into, or is already party to, a
preexisting employment agreement or contract for
employment.
(b)
Without limiting
the scope of the foregoing, Parent agrees that those individuals
set forth on
Section
6.10
of the Inuvo Disclosure Schedule shall terminate
employment following the Effective Time and be entitled to receive
such separation payments as are determined in accordance with the
separation agreements to be entered into at the Closing and
substantially in the form attached hereto as
Exhibit D
(the
“
Inuvo Separation
Agreements
”).
(c)
At the Closing,
Parent’s board of directors of or compensation committee of
the board of directors, shall cause the grant of stock options to
purchase 1,300,000 shares of Parent Common Stock (the
“
Parent
Options
”) to certain employees of Inuvo with an
exercise price equal to the fair market value of Parent Common
Stock as of the grant date of such Parent Options. The Parent
Options shall be allocated in accordance with Inuvo Disclosure
Schedule
Section
6.10(c)
.
Section
6.11
Indemnification; Insurance.
(a)
The provisions
with respect to indemnification, advancement of expenses and
exculpation contained in the Parent Certificate of Incorporation
and Parent Bylaws shall not be amended, repealed or otherwise
modified for a period of six (6) years after the Effective Time in
any manner that would adversely affect the rights thereunder of the
persons who at any time prior to the Effective Time were entitled
to indemnification, advancement of expenses or exculpation under
the CPT Certificate of Incorporation, the CPT Bylaws, the Inuvo
Articles of Incorporation, or the Inuvo Bylaws (or the applicable
organizational documents of CPT’s and Inuvo’s
Subsidiaries) in respect of actions or omissions occurring at or
prior to the Effective Time, unless otherwise required by
applicable Law (and provided that all rights of indemnification,
advancement of expenses and exculpation in respect of any claim
asserted or made within such six-year period shall continue until
the final disposition of such claim).
(b)
From and after the
Effective Time and until the expiration of any applicable statutes
of limitation of the underlying claim to which the indemnification
relates, Parent shall indemnify, defend and hold harmless the
present and former officers directors of CPT, Inuvo and their
respective Subsidiaries (collectively, together with their
respective heirs, executors and administrators, the
“
Indemnified Directors and
Officers
”) against all losses, claims, damages,
expenses (including reasonable attorneys’ fees and including
any attorneys’ fees or other fees incurred to enforce the
provisions of this
Section 6.11(b)
, Liabilities
or amounts that are paid in settlement of, or otherwise, in
connection with any claim, action, suit, Proceeding or
investigation, whether civil, criminal, administrative or
investigative and including all appeals thereof to which any
Indemnified Directors and Officers is or may become a party to by
virtue of his or her service as a present or former director or
officer of CPT, Inuvo or any of their respective Subsidiaries, and
arising out of actual or alleged events, actions or omissions
occurring or alleged to have occurred at or prior to the Effective
Time, in each case to the fullest extent permitted by applicable
Law.
(c)
Each of Parent, CPT
and Inuvo agrees, that all rights to indemnification, exculpation
and advancement of expenses now existing in favor of any
Indemnified Directors and Officers or any current or former
employee of CPT, Inuvo or any of their respective Subsidiaries
(together with their heirs, executors and administrators, and any
Indemnified Directors and Officers, the “
Indemnified Parties
”) as provided
in CPT Certificate of Incorporation, CPT Bylaws, Inuvo Articles of
Incorporation or Inuvo Bylaws (or the organizational documents of
CPT’s or Inuvo’s Subsidiaries) shall survive the
Mergers and shall continue in full force and effect in accordance
with their terms. For a period of six (6) years after the Effective
Time, Parent shall maintain in effect the indemnification,
exculpation and advancement of expenses provisions of CPT
Certificate of Incorporation, CPT Bylaws, Inuvo Articles of
Incorporation or Inuvo Bylaws (and the organizational documents of
CPT’s and Inuvo’s Subsidiaries) now in effect and any
such indemnification agreements of CPT, Inuvo or any of their
respective Subsidiaries with the Indemnified Parties and not to
amend, repeal or otherwise modify such provisions in any manner
that would adversely affect the rights thereunder of such
Indemnified Parties, and all such rights in respect of any action,
suit, proceeding or investigation pending or asserted or claim made
or threatened within such period shall continue until the final
disposition or resolution thereof.
(d)
Prior to the
Effective Time, Parent, CPT and/or Inuvo shall obtain
“tail” insurance policies with a claims period of six
(6) years from the Effective Time with respect to directors’
and officers’ liability insurance in an amount and scope
reasonably acceptable to CPT and Inuvo for claims arising from
facts or events that occurred on or prior to the Effective Time at
a cost that is reasonable and customary for tail insurance policies
with a directors’ and officers’ liability policy
insurer reasonably acceptable to CPT and Inuvo (the
“
D&O
Insurance
”). Parent shall use commercially reasonable
efforts to obtain competitive quotes (from insurance providers with
comparable ratings) for such insurance coverage in an effort to
reduce the cost thereof.
(e)
The rights of each
Indemnified Party hereunder shall be in addition to, and not in
limitation of, any other rights such Indemnified Party may have
under the CPT Certificate of Incorporation, the CPT Bylaws, the
Inuvo Articles of Incorporation, the Inuvo Bylaws, and any of
CPT’s or Inuvo’s Subsidiaries or under any other
indemnification agreements or under applicable Law. The obligations
under this
Section
6.11
shall not be terminated or modified in such a manner as
to affect adversely any Indemnified Party to whom this
Section 6.11
applies without
the consent of such affected Indemnified Party (it being expressly
agreed that the Indemnified Parties to whom this
Section 6.11
applies and their
respective heirs, successors and assigns shall be express
third-party beneficiaries of this
Section 6.11
). This
Section 6.11
shall
survive the consummation of the Mergers and is intended to be for
the benefit of, and shall be enforceable by, the Indemnified
Parties referred to herein.
(f)
If the Parent or
any of its respective successors or assigns (i) consolidates
with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers or conveys all or substantially
all of its properties and assets to any Person, then, and in each
case, to the extent necessary, proper provision shall be made so
that the successors and assigns of the Parent shall assume the
obligations set forth in this
Section 6.11
.
Section
6.12
No Solicitation.
(a)
Inuvo Takeover
Proposal
.
(i)
Inuvo shall not,
nor shall it authorize or permit any Subsidiary of Inuvo to, nor
shall it authorize or permit any Inuvo Representative to, directly
or indirectly, (i) solicit, initiate or knowingly encourage
the submission, making or announcement of any Inuvo Takeover
Proposal, (ii) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect
to, or otherwise cooperate in any way with respect to, or take any
other action to facilitate the making of, any inquiry or any
proposal that constitutes, or would reasonably be expected to lead
to, any Inuvo Takeover Proposal or (iii) make or authorize any
statement, recommendation or solicitation in respect of any Inuvo
Takeover Proposal (in each case, except as permitted by this
Section
6.12
).
(ii)
Inuvo shall, and
shall cause each Subsidiary of Inuvo and each Inuvo Representative
to, immediately cease and cause to be terminated all discussions or
negotiations with any person conducted heretofore with respect to
any proposal that constitutes or would reasonably be expected to
lead to a Inuvo Takeover Proposal. Inuvo shall, and shall cause
each Subsidiary of Inuvo to, enforce (and not waive any provision
of or release any Person from any obligations under) any
confidentiality, standstill or similar agreement to which Inuvo or
any Subsidiary of Inuvo is a party unless the Inuvo Board concludes
in good faith that a failure to take any action described in this
sentence would be inconsistent with the Inuvo Board’s
fiduciary duties to Inuvo’s stockholders under applicable
Law.
(iii)
Notwithstanding the
foregoing, if, at any time after the date hereof and prior to the
time that the Required Inuvo Stockholder Vote has been obtained,
Inuvo receives a bona fide Inuvo Takeover Proposal that did not
result from a breach or a deemed breach (pursuant to
Section 6.12(a)(iv))
by Inuvo
or any Inuvo Representative of
Section 6.12(a)(i) and/or
(ii)
, or the Confidentiality Agreement and Inuvo otherwise
has complied with
Sections 6.12(a)(i) and (ii)
,
and the Inuvo Board determines in good faith (A) after
consultation with outside counsel and an independent financial
advisor that such Inuvo Takeover Proposal is, or is reasonably
likely to result in, a Superior Inuvo Proposal and (B) after
consultation with outside counsel that failure to take the actions
set forth in clauses (1) and (2) below with respect to such Inuvo
Takeover Proposal would be inconsistent with the Inuvo
Board’s fiduciary duties to Inuvo’s stockholders under
applicable Law, Inuvo may, subject to providing prior written
notice of its decision to take such action to CPT and compliance
with
Section
6.12(c)
: (1) furnish information with respect to Inuvo
and Inuvo’s Subsidiaries to the Person making such Inuvo
Takeover Proposal pursuant to a confidentiality agreement no less
restrictive of the other party than the Confidentiality Agreement
(but which confidentiality agreement may allow such Person to make
any Inuvo Takeover Proposal to Inuvo in connection with the
negotiations and discussions permitted by this
Section 6.12
), provided that
all such material information not previously provided to CPT is
promptly provided to CPT and (2) participate in discussions or
negotiations with the Person making such Inuvo Takeover Proposal
regarding such Inuvo Takeover Proposal.
(iv)
The parties hereto
acknowledge that any violation by any Subsidiary of Inuvo or any
Inuvo Representative of any provision of this
Section 6.12
shall be deemed
to be a violation by Inuvo.
(b)
Change in
Recommendation
.
(i)
Neither Inuvo nor
the Inuvo Board nor any committee thereof shall
(A) (1) withdraw (or qualify or modify in a manner
adverse to CPT) or propose to withdraw (or qualify or modify in a
manner adverse to CPT), the approval or recommendation by the Inuvo
Board or any such committee of this Agreement, the Merger or any of
the transactions contemplated by this Agreement or (2) approve
or recommend, or propose to approve or recommend, any Inuvo
Takeover Proposal (either (1) or (2) being a “
Change in Recommendation
”) or
(B) approve, or cause or permit Inuvo or any Subsidiary of
Inuvo to enter into, any letter of intent, agreement in principle,
merger agreement, acquisition agreement or other similar agreement
relating to any Inuvo Takeover Proposal (each, an
“
Acquisition
Agreement
”).
(ii)
Notwithstanding the
foregoing, if, at any time after the date hereof and prior to the
time that the Required Inuvo Stockholder Vote has been obtained,
(x) Inuvo receives a Superior Inuvo Proposal that did not
result from a breach or a deemed breach (pursuant to
Section 6.12(a)(iv))
by Inuvo
or any Inuvo Representative of
Section 6.12(a)(i)
and/or
Section
6.12(a)(ii)
, or the Confidentiality Agreement, and
(y) the Inuvo Board determines in good faith after
consultation with outside counsel that, in light of such proposal,
a failure to make a Change in Recommendation would be inconsistent
with the Inuvo Board’s fiduciary duties to Inuvo’s
stockholders under applicable Law, Inuvo may, (A) make a
Change in Recommendation or (B) terminate this Agreement
pursuant to
Section
8.1(f)
, so long as (and only if) (i) Inuvo has complied
with this
Section
6.12
, including subsection (c) below, (ii) the Inuvo
Board shall have first provided a Superior Proposal Notice to CPT,
(iii) either (x) within five (5) Business Days after
receipt of such Superior Proposal Notice (the “
Proposal Period
”), CPT shall not
have proposed (in writing and in a manner what would be binding on
CPT if accepted by Inuvo) any adjustments to the terms and
conditions of this Agreement that would cause the Superior Inuvo
Proposal to cease to constitute a Superior Inuvo Proposal or
(y) the Inuvo Board shall have determined in good faith, after
consultation with the Inuvo Financial Advisor, that any such
proposal by CPT during the Proposal Period does not cause the
Superior Inuvo Proposal to cease to constitute a Superior Inuvo
Proposal, and (iv) concurrently with and as a condition to
such termination, the Inuvo Board causes Inuvo to enter into an
Acquisition Agreement with such Person with respect to such
Superior Inuvo Proposal and to pay the Inuvo Termination Fee
pursuant to
Section
8.3(b)
. Inuvo agrees that, during the Proposal Period, Inuvo
and Inuvo Representatives shall negotiate in good faith with CPT
and the CPT Representatives regarding any revisions to the terms of
the transactions contemplated by this Agreement that are proposed
by CPT. A “
Superior Proposal
Notice
” means a written notice to CPT from Inuvo
advising CPT that the Inuvo Board is prepared to make a Change in
Recommendation or accept a Superior Inuvo Proposal, specifying the
terms and conditions of such Superior Inuvo Proposal, attaching the
material terms of the Superior Inuvo Proposal and identifying the
Person making such Superior Inuvo Proposal (it being understood and
agreed that any material amendment to the price or any other
material term of such Superior Inuvo Proposal shall require a new
Superior Proposal Notice and a new Proposal Period, as provided
above).
(iii)
Notwithstanding
anything to the contrary contained herein, prior to obtaining the
Required Inuvo Stockholder Vote, the Inuvo Board may make a Change
in Recommendation (except for a Change in Recommendation with
respect to a Superior Proposal to which
Section 6.12(b)(ii)
applies),
if the Inuvo Board determines in good faith, after consultation
with Inuvo’s outside counsel, that the failure to take such
action would be inconsistent with Inuvo directors’ fiduciary
duties to Inuvo stockholders under applicable Law.
(c)
Inuvo Takeover Proposal
Information
.
(i)
Inuvo shall
promptly, but in any event within forty-eight (48) hours,
(i) advise CPT orally and in writing of any Inuvo Takeover
Proposal or any inquiry with respect to, or that would reasonably
be expected to lead to or contemplates, any Inuvo Takeover Proposal
(including any change to the terms of any such Inuvo Takeover
Proposal or inquiry), specifying the material terms and conditions
thereof and the identity of the Person making any such Inuvo
Takeover Proposal or inquiry and (ii) provide to CPT a copy of all
written material provided to Inuvo or any Subsidiary of Inuvo or
any Inuvo Representative in connection with any such Inuvo Takeover
Proposal or any inquiry with respect to, or that would reasonably
be expected to lead to or contemplates, any Inuvo Takeover
Proposal. Inuvo shall (A) keep CPT fully informed of the
status of any such Inuvo Takeover Proposal or inquiry, and
(B) promptly, but in any event within forty-eight (48) hours,
advise CPT orally and in writing of any material amendments to the
terms of any such Inuvo Takeover Proposal or inquiry and shall
provide to CPT a copy of all written materials provided to Inuvo or
any Subsidiary of Inuvo or any Inuvo Representative in connection
with any such Inuvo Takeover Proposal. Inuvo shall not take any
actions whether contractually or otherwise to limit its ability to
comply with its obligations hereunder.
(ii)
Inuvo shall
provide CPT with at least forty-eight (48) hours prior notice (or
such lesser prior notice as is provided to the members of the Inuvo
Board) of any meeting of the Inuvo Board at which the Inuvo Board
is expected to consider any Inuvo Takeover Proposal or any such
inquiry or to consider providing information to any person or group
in connection with an Inuvo Takeover Proposal or any such
inquiry.
Section
6.13
Section
351 Exchange
.
(a)
Each of CPT and
Inuvo shall use its commercially reasonable best efforts to cause
the Exchanges to qualify as an “exchange” governed by
the provisions of Section 351 of the Code. None of CPT, Inuvo, or
their respective Subsidiaries shall take, or agree to take, fail to
take, or agree to fail to take, any action (including any action
otherwise permitted by
Section 6.1
in the case of
CPT) that would reasonably be expected to prevent or impede the
Exchanges from qualifying as an “exchange” governed by
the provisions of Section 351 of the Code. Pursuant to the
foregoing, each Party agrees to make such commercially reasonable
additions or modifications to the terms of this Agreement as may be
reasonably necessary to permit the Exchanges to so
qualify.
(b)
Unless otherwise
required by applicable Law, each of Parent, CPT, CPT Merger Sub,
Inuvo and Inuvo Merger Sub (i) shall report the Exchanges as
an “exchange” governed by the provisions of Section 351
of the Code, (ii) shall not take any Tax reporting position
inconsistent with such characterization and (iii) shall
properly file with their federal income Tax Returns all information
required by Treasury Regulations Section 1.351-3.
(c)
The Parties hereto
shall cooperate and use their commercially reasonable efforts to
deliver to CPT’s and Inuvo’s Tax counsel and Tax
advisors a certificate containing representations reasonably
requested by such counsel and/or advisors in connection with the
rendering of the Tax opinions to be issued by such counsel and/or
advisors with respect to the treatment of the Exchanges as an
“exchange” governed by the provisions of Section 351 of
the Code as required under
Section 7.2(f)
and
Section 7.3(d)
and
in connection with the filing of the Registration Statement.
CPT’s and Inuvo’s Tax counsel and Tax advisors shall be
entitled to rely upon such representations in rendering any such
opinions.
(d)
The certificates
required pursuant to
Section 6.13(c)
and the tax
opinions required pursuant to
Section 7.2(e)
and
Section 7.3(d)
will be in a form and content that is reasonably acceptable to both
CPT and Inuvo.
Section
6.14
Litigation
.
Each Party shall promptly notify the other Parties of any
Proceeding that shall be instituted or threatened against a Party
to restrain, prohibit or otherwise challenge the legality of any of
the transactions contemplated by this Agreement. Each Party shall
promptly notify the other Parties of any Proceeding that may be
threatened or asserted in writing, brought or commenced against
such Party or any of such Party’s Subsidiaries, that would
have been disclosed pursuant to
Article IV
or
Article V
, as the case may be,
if such Proceeding had arisen prior to the date hereof. Each Party
agrees that it shall not settle or make an offer to settle any
litigation commenced against such Party or any director by any
stockholder relating to this Agreement, the Mergers or any other
transactions contemplated hereby, unless the other Parties shall
have consented in writing to such payment or settlement (with such
consent not to be unreasonably withheld).
Section
6.15
Takeover
Laws and Rights
. If any
“fair price,” “moratorium,” “control
share acquisition” or other anti-takeover statute or
regulation (“
Takeover
Law
”) is or may become applicable to this Agreement,
the CPT Common Stock, the Inuvo Common Stock, the Mergers or any of
the other transactions contemplated hereby, each of CPT, the CPT
Board, Inuvo and the Inuvo Board shall grant such approvals and
take such actions as are necessary so that such transactions may be
consummated as promptly as practicable on the terms contemplated by
this Agreement and otherwise act to eliminate or minimize the
effects of such Takeover Law on this Agreement, the CPT Common
Stock, the Inuvo Common Stock, the Mergers or such other
transactions contemplated hereby.
Section
6.16
Registration
Statement on Form S-8
. Parent shall, as
soon as practicable following the Effective Time, file a
registration statement on Form S-8 with the SEC relating to the
shares of Parent Common Stock issuable with respect to assumed CPT
Stock Options, Inuvo Options, CPT RSUs and Inuvo RSUs eligible for
registration on Form S-8;
provided, however
, that
(i) assumed CPT Stock Options held by non-employees of CPT and
non-employees of Inuvo (the “
Non-Employee Options
”) shall not
be registered by Parent on Form S-8 and (ii) the Non-Employee
Options may only be exercised following the Closing upon delivery
to Parent of an opinion of counsel, in such form to be reasonably
acceptable to Parent, that the exercise does not violate federal or
state Law.
Section
6.17
Financing
Covenant
.
(a)
Parent, CPT, CPT
Merger Sub, and Inuvo Merger Sub shall use their respective
reasonable best efforts to do, or cause to be done all things
necessary, proper or advisable to arrange and obtain the
Financing.
(b)
As applicable,
Parent, CPT, CPT Merger Sub, and Inuvo Merger Sub shall give Inuvo
prompt notice of any fact, change, event or circumstance that is
reasonably likely to have, individually or in the aggregate, a
material adverse impact on any portion of the Financing necessary
for the satisfaction of all of Parent’s, CPT’s, CPT
Merger Sub’s, and Merger Sub’s obligations under this
Agreement.
(c)
Prior to the
Effective Time, Inuvo and its Subsidiaries shall use reasonable
best efforts to, and shall use reasonable best efforts to cause
their respective Representatives to, cooperate with Parent, CPT,
CPT Merger Sub, and Inuvo Merger Sub as necessary in connection
with the Financing as may be reasonably requested by Parent, CPT,
CPT Merger Sub, or Inuvo Merger Sub, at CPT’s sole
expense.
(d)
CPT, Parent, CPT
Merger Sub, and Inuvo Merger Sub shall cause the Financing to occur
as promptly as practicable following the Execution Date and in no
event later than May 31, 2019, which date may be extended by thirty
(30) day increments with the consent of Inuvo, which consent may be
withheld in the sole discretion of Inuvo. If the Financing does not
occur by May 31, 2019, subject to Inuvo’s right to extend
such time period, CPT shall be in material breach of this
Section
6.17
.
(e)
Notwithstanding
anything in this
Section
6.17
to the contrary, in fulfilling its obligations pursuant
to this
Section
6.17
, neither Inuvo nor any of its Subsidiaries shall be
required to take any action that would: (i) in the reasonable
judgment of Inuvo after consultation with its outside legal
counsel, (A) result in the contravention of, or would
reasonably be expected to result in a violation or breach of, or a
default under, the charter or organizational documents of Inuvo, or
any Subsidiary, any applicable Legal Requirement or under any
Material Inuvo Contract or (B) require disclosure of
information if, in the reasonable judgment of Inuvo, such
disclosure would cause significant competitive harm to Inuvo or its
Subsidiaries if the transactions contemplated by this Agreement are
not consummated; (C) require Inuvo to provide access to or disclose
information that Inuvo reasonably determines would result in a loss
or waiver of attorney-client privilege of Inuvo or its Subsidiaries
(in each case it being agreed that Inuvo shall give notice to
Parent, CPT, or Inuvo Merger Sub, as applicable, of the fact that
it is withholding such information or documents pursuant to this
clause (i)(C), and thereafter Inuvo, Parent, CPT, and Inuvo Merger
Sub shall reasonably cooperate to cause such information to be
provided in a manner that would not reasonably be expected to
violate the applicable restriction or waive the applicable
privilege or protection); or (ii) cause any condition to the
Closing set forth in this Agreement to not be
satisfied.
(f)
Parent, CPT, CPT
Merger Sub, and Inuvo Merger Sub shall, in the event the Closing
does not occur, on a joint and several basis, indemnify and hold
harmless Inuvo and its Subsidiaries and their respective
Representatives from and against any and all liabilities, losses,
damages, claims, costs, expenses, interest, awards, judgments and
penalties suffered or incurred by any of them in connection with
the Financing, the arrangement of the Financing and/or the
provision of information utilized in connection therewith to the
fullest extent permitted by applicable Law except, in each case, to
the extent resulting from gross negligence or willful misconduct of
Inuvo or its Subsidiaries or any of their respective
Representatives as determined in a final non-appealable judgment by
a court of competent jurisdiction.
Section
6.18
Section 16
Matters
(a)
Prior to the
Effective Time, Inuvo, and Inuvo’s Board of Directors, shall,
to the extent necessary, take appropriate action, prior to or as of
the Effective Time, to approve, for purposes of Section 16(b)
of the Exchange Act, the deemed disposition and cancellation of
shares of Inuvo Common Stock in the transactions
contemplated
hereby by
applicable individuals and to cause such dispositions and/or
cancellations to be exempt under Rule 16b-3 promulgated under the
Exchange Act.
Section
6.19
Payment of Certain
Indebtedness
.
(a)
At the
Effective Time, Parent shall cause all outstanding indebtedness
incurred by the Inuvo and certain of its Subsidiaries under the
Amended and Restated Business Finance Agreement, dated as of
October 11, 2018, by and among Western Alliance Bank (f/k/a Bridge
Bank, N.A.), as amended, supplemented, or otherwise supplemented
from time to time, to be paid in full.
Section 6.20
Merger Sub Compliance
. Parent shall
cause CPT Merger Sub and Inuvo Merger Sub to comply with all of CPT
Merger Sub’s and Inuvo Merger Sub’s obligations under
this Agreement and to consummate the transactions contemplated
hereby upon the terms and subject to the conditions in this
Agreement.
Section
6.21
Support
Agreements
. The Parties shall
cause the Support Agreements to be executed by those directors and
stockholders of CPT and Inuvo as mutually agreed by CPT and
Inuvo.
Section
6.22
Further
Assurances
. Each of the
Parties to this Agreement shall use its reasonable best efforts to
effect the transactions contemplated hereby. Each Party hereto, at
the reasonable request of another Party hereto, shall execute and
deliver such other instruments and do and perform such other acts
and things as may be necessary or desirable for effecting the
consummation of the Mergers and the transactions contemplated
hereby.
ARTICLE
VII
CONDITIONS TO THE
MERGERS
Section
7.1
Conditions
to the Obligations of Each Party
. The respective
obligations of each party to consummate the Mergers are subject to
the satisfaction on or prior to the Closing Date of the following
conditions:
(a)
Stockholder Approval
. The CPT
Voting Proposal shall have been approved at CPT Stockholders’
Meeting by the Required CPT Stockholder Vote and the Inuvo Voting
Proposal shall have been approved at the Inuvo Stockholders’
Meeting by the applicable Required Inuvo Stockholder
Vote.
(b)
No Order
. No judgment,
injunction, order or decree of a Governmental Entity of competent
jurisdiction shall be in effect which has the effect of making the
Mergers illegal or prohibiting the consummation of the Mergers or
the other transactions contemplated by this Agreement;
provided, however
, that prior to
asserting this condition, subject to
Section 6.10
, the Party
seeking to assert this condition shall have used its reasonable
efforts to prevent the entry of any such judgment, injunction,
order or decree.
(c)
HSR Act; Approvals
. All
waiting periods, and any extensions thereof, under the HSR Act
relating to the Mergers or any of the transactions contemplated
hereby will have expired or terminated early. All other
authorizations, consents, orders, declarations or approvals of, or
filings and registrations with, any Governmental Entity that are
required to effect the Mergers or any of the transactions
contemplated hereby shall have been obtained, shall have been made
or shall have occurred.
(d)
Registration Statement; Joint Proxy
Statement/Prospectus
. The Registration Statement shall have
become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose, and no similar
proceeding with respect to the Joint Proxy Statement/Prospectus,
shall have been initiated or threatened in writing by the SEC or
its staff and not concluded or withdrawn.
(e)
Litigation
. There shall not be
pending any suit, action or proceeding by any Governmental Entity
in any court of competent jurisdiction seeking to prohibit the
consummation of the Mergers or any other transaction contemplated
by this Agreement or that would otherwise cause a CPT Material
Adverse Effect or an Inuvo Material Adverse Effect;
provided, however
, that if the court
of competent jurisdiction dismisses or renders a final decision
denying a Governmental Entity’s request for an injunction in
such suit, action or proceeding, then four (4) Business Days
following such dismissal or decision, this condition to Closing
shall, with respect to such suit, action or proceeding, thereafter
be deemed satisfied whether or not such Governmental Entity appeals
the decision of such court or files an administrative complaint
before the Federal Trade Commission.
(f)
NASDAQ and TSX Listings
.
Shares of Parent Common Stock to be issued in the Mergers and the
transactions contemplated hereby, shall have been authorized for
listing on NASDAQ, subject to official notice of issuance, and
shall be conditionally approved for listing on the TSX, subject to
standard listing conditions of the TSX.
Section
7.2
Additional
Conditions to Obligations of CPT
. The obligation of
CPT to effect the CPT Merger shall be subject to the satisfaction
on or prior to the Closing Date of each of the following additional
conditions, any of which may be waived, in writing, exclusively by
CPT:
(a)
Representations and
Warranties
. Each of the representations and warranties of
Inuvo set forth in this Agreement, without giving effect to any
materiality or “Inuvo Material Adverse Effect”
qualification therein, shall be true and correct as of the Closing
Date, except for such failures to be true and correct as would not
have, individually or in the aggregate, an Inuvo Material Adverse
Effect (except to the extent such representations and warranties
are expressly made as of a certain date, in which case such
representations and warranties shall be so true and correct as of
such certain date only);
provided, however
, that the
representations and warranties contained in (i)
Section 5.1
(Organization and
Qualification);
Section
5.3
(Subsidiaries); and
Section 5.4(a)
and
(
b)
(Authority;
Non-Contravention; Approvals) shall be true and correct in all
material respects as of the Closing Date (except to the extent such
representations and warranties are expressly made as of a certain
date, in which case such representations and warranties shall be so
true and correct in all material respects as of such certain date
only); and (ii) in
Section 5.2
(Capitalization)
shall be true and correct in all material respects (except to a
de minimis
extent), and
CPT shall have received a certificate signed on behalf of Inuvo by
its Chief Executive Officer and its Chief Financial Officer to the
effect that the conditions contained in this
Section 7.2(a)
have been
satisfied.
(b)
Performance of Obligations
.
Inuvo shall have performed in all material respects all obligations
required to be performed by it under this Agreement on or prior to
the Effective Time, and CPT shall have received a certificate
signed on behalf of Inuvo by its Chief Executive Officer and its
Chief Financial Officer to such effect.
(c)
Material Adverse Effect
. Since
the date of this Agreement, there shall have been no Inuvo Material
Adverse Effect. CPT shall have received a certificate signed on
behalf of Inuvo by its Chief Executive Officer and its Chief
Financial Officer to such effect.
(d)
Consents
. Inuvo shall have
obtained the consent or approval of each Person or Governmental
Entity whose consent or approval shall be required in connection
with the Inuvo Merger and the transactions contemplated hereby as
set forth in
Section
5.4(c)
of the Inuvo Disclosure Schedule.
(e)
Tax Opinion
. CPT shall have
received the written opinion of its counsel, Troutman Sanders LLP,
in form and substance reasonably satisfactory to CPT, on the basis
of facts, representations and assumptions set forth in such opinion
and dated the Closing Date, to the effect that the Exchanges will
be treated as an “exchange” governed by the provisions
of Section 351 of the Code (the “
CPT Tax Opinion
”). In rendering
such opinion, counsel may require and rely upon representations
contained letters or certificates of officers of CPT and Inuvo,
reasonably satisfactory in form and substance to it.
(f)
Dissenters’ Rights
. CPT
shall not have received demands (in accordance with applicable Law
and which have not been withdrawn or effectively withdrawn and with
respect to which the right to seek appraisal on the shares
underlying such demand has not otherwise been lost) for the
appraisal of CPT Common Stock as contemplated by
Section 3.1(d)
and within the
time periods mandated by the DGCL from holders of CPT Common Stock
representing more than ten percent (10%) of the issued and
outstanding CPT Common Stock.
(g)
Financing
. Financing shall
have closed at or immediately prior to the Closing.
Section
7.3
Additional
Conditions to Obligations of Inuvo
. The obligation of
Inuvo to effect the Inuvo Merger shall be subject to the
satisfaction on or prior to the Closing Date of each of the
following additional conditions, any of which may be waived, in
writing, exclusively by Inuvo:
(a)
Representations and
Warranties
. Each of the representations and warranties of
CPT set forth in this Agreement, without giving effect to any
materiality or “CPT Material Adverse Effect”
qualification therein, shall be true and correct as of the Closing
Date, except for such failures to be true and correct as would not
have, individually or in the aggregate, a CPT Material Adverse
Effect (except to the extent such representations and warranties
are expressly made as of a certain date, in which case such
representations and warranties shall be so true and correct as of
such certain date only);
provided
,
however
, that the representations and
warranties contained in (i)
Section 4.1
(Organization and
Qualification);
Section
4.3
(Subsidiaries); and
Section 4.4(a), (b), (c), (d)
and
(e)
(Authority; Non-Contravention: Approvals) shall be true and correct
in all material respects as of the Closing Date (except to the
extent such representations and warranties are expressly made as of
a certain date, in which case such representations and warranties
shall be so true and correct in all material respects as of such
certain date only); and (ii) in
Section 4.2
(Capitalization)
shall be true and correct in all material respects (except as
contemplated by
Section
6.1(b)
); and Inuvo shall have received a certificate signed
on behalf of Parent by its Chief Executive Officer and Chief
Financial Officer to the effect that the conditions contained in
this
Section
7.3(a)
have been satisfied.
(b)
Performance of Obligations
.
CPT shall have performed in all material respects all obligations
required to be performed by them under this Agreement on or prior
to the Closing Date, and Inuvo shall have received certificates
signed on behalf of CPT by its Chief Executive Officer and Chief
Financial Officer to such effect.
(c)
Material Adverse Effect
. Since
the date of this Agreement, there shall have been no CPT Material
Adverse Effect. Inuvo shall have received a certificate signed on
behalf of CPT by its Chief Executive Officer and Chief Financial
Officer.
(d)
Tax Opinion
. Inuvo shall have
received the written opinion of its counsel, Porter Wright Morris
& Arthur LLP, in form and substance reasonably satisfactory to
Inuvo, on the basis of facts, representations and assumptions set
forth in such opinion and dated the Closing Date, to the effect
that the Exchanges will be treated as an “exchange”
governed by the provisions of Section 351 of the Code (the
“
Inuvo Tax
Opinion
”). In rendering such opinion, counsel may
require and rely upon representations contained in letters or
certificates of officers of Inuvo and CPT, reasonably satisfactory
in form and substance to it.
(e)
Financing
. The Financing shall
have closed at or immediately prior to the Closing.
(f)
Separation Agreements
. A
counterpart signature page of each Separation Agreement duly
executed by the Parent, shall be delivered to Inuvo and each
executive who is a counterparty to the applicable Separation
Agreement.
Section
7.4
Frustration
of Closing Conditions
. Neither CPT, on
one hand, nor Inuvo, on the other hand, may rely on the failure of
any condition set forth in this
Article VII
to be satisfied if
such failure was caused (to any substantial extent) by CPT’s
failure or Inuvo’s failure, respectively, to act in good
faith to comply with this Agreement and to consummate the
transactions provided for herein.
ARTICLE
VIII
TERMINATION
Section
8.1
Termination
.
This Agreement may be terminated and the Mergers may be abandoned
at any time prior to the Effective Time, whether before or after
any requisite approval of the stockholders of CPT or
Inuvo:
(a)
by mutual written
consent of CPT and Inuvo;
(b)
by either CPT or
Inuvo:
(i)
if the Mergers have
not been consummated on or before
June 30
, 2019 (the
“
Termination
Date
”);
provided,
however
, that the right to terminate this Agreement pursuant
to this subsection shall not be available to a Party if the failure
of the Closing to occur by such date shall be due to the material
breach, violation or failure to perform by such Party of any
representation, warranty, covenant, obligation or other agreement
of such Party set forth in this Agreement;
(ii)
if any
Governmental Entity shall have issued a final order, decree or
ruling or taken any other final action enjoining or otherwise
prohibiting the consummation of the Mergers and such order, decree,
ruling or other action is or shall have become final and
nonappealable;
(iii)
if, at the CPT
Stockholders’ Meeting (including any adjournment or
postponement thereof permitted by this Agreement) at which a vote
on the CPT Voting Proposal is taken, the Required CPT Stockholder
Vote in favor of the CPT Voting Proposal shall not have been
obtained; or
(iv)
if, at the Inuvo
Stockholders’ Meeting (including any adjournment or
postponement thereof permitted by this Agreement) at which a vote
on the Inuvo Voting Proposal is taken, the Required Inuvo
Stockholder Vote in favor of the Inuvo Voting Proposal shall not
have been obtained;
(c)
by CPT, if there
has been a breach of or failure to perform any representation,
warranty, covenant or agreement on the part of Inuvo set forth in
this Agreement, which breach or failure to perform (i) if it
occurred or was continuing to occur on the Closing Date, would
result in the failure of the conditions set forth in
Section 7.2(a)
or
Section 7.2(b)
to be
satisfied, and (ii) which is either not curable or is not
cured by the earlier of (A) the Termination Date and
(B) the date that is thirty (30) days following written notice
from Inuvo to CPT describing such breach, violation or failure in
reasonable detail;
provided
, that Parent is not then in
material breach or violation of, and has not materially failed to
perform, any representation, warranty, covenant, obligation or
other agreement contained herein that would cause it to fail to
satisfy the conditions set forth in
Section 7.3(a)
or
Section 7.3(b)
;
(d)
by Inuvo, if there
has been a breach of or failure to perform any representation,
warranty, covenant or agreement on the part of CPT set forth in
this Agreement, which breach or failure to perform (i) if it
occurred or was continuing to occur on the Closing Date, would
result in the failure of the conditions set forth in
Section 7.3(a)
or
Section 7.3(b)
to be
satisfied, and (ii) which is either not curable or is not
cured by the earlier of (A) the Termination Date and
(B) the date that is thirty (30) days following written notice
from CPT to Inuvo describing such breach, violation or failure in
reasonable detail;
provided
, that Inuvo is not in
material breach or violation of, and has not materially failed to
perform, any representation, warranty, covenant, obligation or
other agreement contained herein that would cause it to fail to
satisfy the conditions set forth in
Section 7.2(a)
or
Section 7.2(b)
;
(e)
by CPT (but only
prior to the time the Required Inuvo Stockholder Vote is obtained),
if (i) the Inuvo Board shall have effected a Change in
Recommendation (other than as contemplated by
Section 6.12(b)(iii)
);
(ii) the Inuvo Board shall have approved or recommended to the
holders of Inuvo Common Stock an Inuvo Takeover Proposal;
(iii) a tender offer or exchange offer for Inuvo Common Stock
that constitutes an Inuvo Takeover Proposal is commenced (other
than by CPT or any of its Affiliates) and the Inuvo Board
recommends that the holders of Inuvo Common Stock tender their
shares in such tender or exchange offer or the Inuvo Board fails to
recommend that the holders of Inuvo Common Stock reject such tender
or exchange offer within ten (10) Business Days of commencement
thereof; or (iv) there has been a material breach by Inuvo of
Section
6.12
;
(f)
by Inuvo, prior to
the time that the Required Inuvo Stockholder Vote has been obtained
in accordance with
Section 6.12(b)
;
provided, however
, that, in order for
the termination of this Agreement pursuant to this
Section 8.1(f)
to be
effective, (A) CPT shall have complied in all respects with
the provisions of
Section
6.12
, including the notice provisions therein, (B) the
Inuvo Board shall have authorized Inuvo to enter into an
Acquisition Agreement with respect to a Superior Proposal,
(C) substantially concurrently with a termination, pursuant to
this
Section
8.1(f),
Inuvo enters into such Acquisition Agreement and
(D) Inuvo shall have complied with all applicable requirements
of
Section 8.3
,
including payment of CPT Termination Fee;
(g)
by Inuvo, in the
event that (i) Inuvo is not in material breach or violation of, and
has not materially failed to perform, any representation, warranty,
covenant, obligation or other agreement contained herein that would
cause it to fail to satisfy the conditions set forth in
Section 7.2(a)
or
Section 7.2(b)
,
and (ii) (A) the representations and warranties of CPT,
Parent, CPT Merger Sub, and/or Inuvo Merger Sub under
Section 4.27
become inaccurate
or have been breached, such that the condition set forth in
Section 7.2(a)
would not be satisfied, and CPT shall have been provided with
thirty (30)
days
advance written notice and an ability to cure such breach;
(B) the covenants or obligations of CPT, Parent, CPT Merger
Sub and/or Inuvo Merger Sub contained in
Section 6.17
have been
breached such that the condition set forth in
Section 7.2(b)
would not be
satisfied; or (C) CPT, Parent, CPT Merger Sub, or Inuvo
Merger Sub is enjoined from consummating the Financing;
or
(h)
by Inuvo, if (i)
all the conditions set forth in
Section 7.1
,
Section 7.2
and
Section 7.3
have been
satisfied (other than those conditions that by their nature are to
be satisfied at the Closing but provided such conditions are then
capable of being fulfilled), (ii) Inuvo has thereafter confirmed in
writing to CPT and Parent that it is ready and able to consummate
the Mergers, and (iii) CPT and Parent fail to consummate the
Mergers within three (3) Business Days following the date the
Closing should have occurred in accordance with
Section 2.3
;
provided, however
, that during such
period of three (3) Business Days following the date the Closing
should have occurred pursuant to
Section 2.3
and for
twenty-four (24) hours thereafter, no party shall be entitled to
terminate this Agreement pursuant to
Section
8.1(b)(i)
.
The
Party desiring to terminate this Agreement pursuant to this
Section 8.1
(other
than pursuant to
Section
8.1(a)
) shall give written notice of such termination to the
other Parties.
Section
8.2
Effect
of Termination
. In the event of
termination of this Agreement by either CPT or Inuvo prior to the
Effective Time pursuant to the provisions of
Section 8.1
, this Agreement
shall forthwith become void, and there shall be no Liability or
further obligation on the part of Parent, CPT, CPT Merger Sub,
Inuvo, Inuvo Merger Sub or their respective officers or directors
(except for the last sentence of
Section 6.3(a)
and the entirety
of
Section 8.2
,
Section 8.3
and
Article IX
, all of
which shall survive the termination);
provided, however
, that nothing
contained in this
Section
8.2
shall relieve any Party hereto from any Liability for
any willful material breach of this Agreement or fraud occurring
prior to termination, in which case the aggrieved Party shall be
entitled to all rights and remedies available at law or in
equity.
Section
8.3
Fees and Expenses.
(a)
General
. Except as set forth
in this
Section
8.3
or as otherwise provided herein, all fees and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the Party incurring such
expenses whether or not the Mergers are consummated.
(b)
Termination Fee
.
(i)
In the event
that:
(A)
this Agreement is
terminated by CPT pursuant to
Section 8.1(e)
;
or
(B)
this Agreement is
terminated by Inuvo pursuant to
Section 8.1(f)
,
then in
the case of (A) or (B) above, Inuvo shall promptly, but in no event
later than the date of the earliest such event, pay to CPT a fee
equal to Two Million Eight Hundred Thousand Dollars ($2,800,000)
(the “
Inuvo Termination
Fee
”), payable by wire transfer of same day funds;
provided, however
, that, in
the case of any termination pursuant to
Section 8.1(f)
, the CPT
Termination Fee shall be payable prior to, and as a condition to,
such termination.
(ii)
In the event that
this Agreement is terminated by Inuvo pursuant to
Section 8.1(g)
or
Section 8.1(h)
, CPT shall, or
shall cause Parent to, promptly, but in no event later than the
date of the earliest such event, pay to Inuvo a fee equal to Two
Million Eight Hundred Thousand Dollars ($2,800,000) (the
“
CPT Termination
Fee
”), payable by wire transfer of same day funds;
provided, however
, that,
in the case of any termination pursuant to
Section 8.1(g)
or
Section 8.1(h)
, the CPT
Termination Fee shall be payable prior to, and as a condition to,
such termination.
(iii)
Each of CPT and
Inuvo acknowledges that the agreements contained in this
Section 8.3(b)
are
an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, each Party would not
enter into this Agreement. It is agreed that each of the CPT
Termination Fee and the Inuvo Termination Fee constitutes
liquidated damages and is not a penalty, and the payment of the CPT
Termination Fee or the Inuvo Termination Fee in the circumstances
specified herein is supported by due and sufficient consideration.
Accordingly, if CPT or Inuvo fails promptly to make a payment due
pursuant to this
Section
8.3(b)
, and, in order to obtain such payment, CPT on the one
hand, or Inuvo on the other hand, commences a suit that results in
a judgment against the other Party, such other Party shall pay to
CPT or Inuvo, as applicable, their reasonable costs and expenses
(including attorneys’ fees and expenses) in connection with
such suit, together with interest on the amount set forth in this
Section 8.3(b)
at
the publicly announced prime rate of Bank of America, N.A. plus two
percent (2.0%) per annum, compounded quarterly, from the date such
payment was required to be paid. Payment of the fees described in
this
Section
8.3(b)
shall not be in lieu of damages incurred in the event
of a breach of this Agreement described in
Section 8.2
.
(iv)
In no event shall
more than one CPT Termination Fee or one Inuvo Termination Fee be
payable hereunder.
ARTICLE
IX
MISCELLANEOUS
Section
9.1
Non-Survival
of Representations and Warranties
. The
representations, warranties and covenants of CPT, Parent, Inuvo,
CPT Merger Sub and Inuvo Merger Sub contained in this Agreement, or
any instrument delivered pursuant to this Agreement, shall
terminate at the Effective Time, except that the covenants that by
their terms survive the Effective Time and this
Article IX
shall survive the
Effective Time.
Section
9.2
Notices
.
All notices and other communications hereunder shall be in writing
and shall be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of
receipt (or, the first Business Day following such receipt if such
date is not a Business Day) of transmission by facsimile or e-mail
(but only if followed by transmittal by a nationally recognized
overnight carrier for delivery on the next Business Day), or
(iii) on the date of confirmation of receipt (or, the first
Business Day following such receipt if such date is not a Business
Day) if delivered by a nationally recognized overnight courier
service. All notices hereunder shall be delivered as set forth
below, or pursuant to such other instructions as may be designated
in writing by the party to receive such notice:
If to
Parent, CPT, CPT Merger Sub, or Inuvo Merger Sub, to:
ConversionPoint
Technologies, Inc.
840
Newport Center Drive
Newport
Beach, CA 92660
Attention: Robert
Tallack, CEO
Email:
robert@conversionpoint.com
with
copies to:
Troutman Sanders
LLP
5 Park
Plaza, 14
th
Floor
Irvine,
CA 92614
Attention: Larry A.
Cerutti, Esq.
Email:
larry.cerutti@troutmansanders.com
Facsimile No.:
(949) 622-2739
If to
Inuvo, to:
Inuvo,
Inc.
500
President Clinton Avenue, Suite 300
Little
Rock, AR 72201
Attention: Richard
K. Howe, Chairman and CEO
Email:
Richard.howe@inuvo.com
with
copies to:
Porter
Wright Morris & Arthur LLP
41
South High Street, Suite 2900
Columbus, OH
43215
Attention: Jeremy
D. Siegfried, Esq.
Email:
jsiegfried@porterwright.com
Facsimile No.:
(614) 227-2100
Section
9.3
Interpretation;
Other Remedies
. The table of
contents, captions and headings contained in this Agreement are
solely for convenience of reference and shall not be used to
interpret or construe this Agreement. The Parties hereto agree that
they have been represented by counsel during the negotiation and
execution of this Agreement and, therefore, waive the application
of any Law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
Except as otherwise provided herein, any and all remedies herein
expressly conferred upon a Party will be deemed cumulative with and
not exclusive of any other remedy conferred hereby, or by law or
equity upon such Party, and the exercise by a Party of any one
remedy will not preclude the exercise of any other
remedy.
Section
9.4
Counterparts
.
This Agreement may be executed in counterparts, all of which shall
be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of
the Parties and delivered to the other Parties.
Section
9.5
Entire
Agreement; Third-Party Beneficiaries
. This Agreement
and all exhibits and attachments hereto, including the CPT
Disclosure Schedule, the Inuvo Disclosure Schedule and the
Confidentiality Agreement constitute the entire agreement among the
Parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among
the Parties with respect to the subject matter hereof, it being
understood that the Confidentiality Agreement shall continue in
full force and effect until the Closing and shall survive, in
accordance with its terms, any termination of this Agreement. Each
of Parties agrees that this Agreement is not intended to, and does
not, confer upon any Person, other than the Parties to this
Agreement, any rights or remedies, and CPT only shall be entitled
to enforce any remedies against Inuvo on the one hand, and Inuvo
shall only be entitled to enforce any remedies against CPT on the
other (in each case, including pursuant to
Section 9.11
(related to
specific performance)) for any breach or violation of this
Agreement.
Section
9.6
Assignment
.
No Party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other parties, except that Parent may assign or
pledge as collateral this Agreement or any of its rights and
obligations hereunder to an affiliate of Parent or to any financing
sources. Any purported assignment in violation of this
Section 9.6
shall be void.
Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto and their
respective successors and permitted assigns.
Section
9.7
Amendment
.
Subject to the provisions of applicable Law, and except as
otherwise provided in this Agreement, this Agreement may be
amended, modified or supplemented only by a written instrument
executed and delivered by all the Parties, whether before or after
the Required CPT Stockholder Vote or the Required Inuvo Stockholder
Vote;
provided, however
,
that, after any such approval, no amendment shall be made for which
applicable Law or the rules of any relevant stock exchange requires
further approval by such stockholders or member without such
further approval.
Section
9.8
Waiver
.
At any time prior to the Effective Time, the Parties hereto may
(i) extend the time for the performance of any of the
obligations or other acts of the other Parties hereto,
(ii) waive any inaccuracies in the other Parties’
representations and warranties contained herein or in any document
delivered pursuant hereto and (iii) waive compliance with any
of the other Parties’ agreements or conditions contained
herein which may legally be waived. Any agreement on the part of a
Party hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such
party. No failure of any Party to exercise any power given such
Party hereunder or to insist upon strict compliance by any party
with its obligations hereunder, and no custom or practice of the
parties in variance with the terms hereof, shall constitute a
waiver of that Party’s right to demand exact compliance with
the terms hereof. Any waiver shall not obligate that Party to agree
to any further or subsequent waiver or affect the validity of the
provision relating to any such waiver.
Section
9.9
Severability
.
In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of this Agreement will continue in full force and effect
and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the
intent of the Parties hereto. The Parties further agree to
negotiate in good faith to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic,
business and other purposes of such void or unenforceable
provision.
Section
9.10
Specific
Performance
. The Parties
hereto agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at
law or in equity. Each of the parties agrees that it will not
oppose the granting of an injunction, specific performance and
other equitable relief on the basis that any other party has an
adequate remedy at law or that any award of specific performance is
not an appropriate remedy for any reason at law or in equity. Any
party seeking an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions
of this Agreement shall not be required to provide any bond or
other security in connection with any such order or
injunction.
Section
9.11
Governing
Law
. This Agreement
shall be governed by, and construed in accordance with, the laws of
the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws
thereof.
Section
9.12
Jurisdiction
.
Each of the Parties hereto irrevocably and unconditionally agrees
that any legal action or Proceeding with respect to this Agreement
and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder brought
by the other Party hereto or its successors or assigns, shall be
brought and determined exclusively in the Delaware Court of
Chancery (or, if (and only if) the Court of Chancery does not
accept jurisdiction over a particular matter, any court within the
State of Delaware). Each of the Parties hereto hereby irrevocably
submits with regard to any such action or Proceeding for itself and
in respect of its property, generally and unconditionally, to the
exclusive personal jurisdiction of the aforesaid courts and agrees
that it will not bring any action relating to this Agreement or any
of the transactions contemplated by this Agreement in any court
other than the aforesaid courts. Each of the Parties hereto hereby
irrevocably waives, and agrees not to assert, by way of motion, as
a defense, counterclaim or otherwise, in any action or Proceeding
with respect to this Agreement, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts
for any reason, (ii) any claim that it or its property is
exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and
(iii) to the fullest extent permitted by applicable Law, any
claim that (A) the suit, action or Proceeding in such court is
brought in an inconvenient forum, (B) the venue of such suit,
action or Proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
Each of the Parties hereby agrees that service of any process,
summons, notice or document by U.S. registered mail to the
respective addresses set forth in
Section 9.2
shall be effective
service of process for any suit or proceeding in connection with
this Agreement or the transactions contemplated
hereby.
Section
9.13
Waiver
of Jury Trial
. EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED BY THE PARTIES
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH
WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS
Section 9.13
.
Section
9.14
Disclosure
.
Any matter disclosed in any Section of a Party’s Disclosure
Schedule shall be considered disclosed for other sections of such
Disclosure Schedule, but only to the extent such matter on its face
would reasonably be expected to be pertinent to a particular
Section of a Party’s Disclosure Schedule in light of the
disclosure made in such section. The provision of monetary or other
quantitative thresholds for disclosure does not and shall not be
deemed to create or imply a standard of materiality
hereunder.
[
Remainder
of Page Intentionally Left Blank
]
IN WITNESS WHEREOF
, Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub have caused this Agreement
to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
|
CONVERSIONPOINT
HOLDINGS, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
CONVERSIONPOINT
TECHNOLOGIES, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
INUVO,
INC.
Name:
Richard K. Howe
Title:
Chairman and Chief Executive Officer
CPT
MERGER SUB, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
CPT
CIGAR MERGER SUB, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
|
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
EXHIBIT A
FORMS OF SUPPORT AGREEMENTS
SUPPORT AGREEMENT
THIS
SUPPORT AGREEMENT (this “
Agreement
”), dated as of November
2, 2018, is entered into by and among ConversionPoint Technologies,
Inc., a Delaware corporation (“
CPT
”), ConversionPoint Holdings,
Inc., a Delaware corporation (“
Parent
”), a wholly-owned
Subsidiary of CPT, CPT Merger Sub, a Delaware corporation and a
wholly-owned Subsidiary of Parent (“
CPT Merger Sub
”), CPT Cigar Merger
Sub, Inc., a Nevada corporation and a wholly-owned Subsidiary of
Parent (“
Inuvo Merger
Sub
”), Inuvo, Inc., a Nevada corporation
(“
Inuvo
”), and
[●] (the “
Stockholder
”). Each of Parent,
CPT, CPT Merger Sub, Inuvo Merger Sub and Inuvo is a
“
Party
” and
together, the “
Parties
.” Capitalized terms used
and not otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, as of the
date hereof, the Stockholder is the record and Beneficial Owner (as
defined below) of the Existing Shares (as defined below), and has
sole investment power over, the Existing Shares;
WHEREAS,
concurrently with the execution of this Agreement, Parent, CPT,
Inuvo, CPT Merger Sub and Inuvo Merger Sub have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the
“
Merger
Agreement
”), providing for, among other things and
subject to the terms and conditions of the Merger Agreement: (i) a
merger of CPT Merger Sub with and into CPT, with CPT being the
surviving entity and becoming a wholly-owned Subsidiary of Parent
(the “
CPT
Merger
”), (ii) the merger of Inuvo Merger Sub with and
into Inuvo, with Inuvo being the surviving entity and becoming a
wholly-owned Subsidiary of Parent (the “
Inuvo Merger
” and, together with
the CPT Merger, the “
Mergers
”), on the terms and
subject to the conditions set forth in the Merger
Agreement;
WHEREAS, the
Stockholder has been provided with the execution copy of the Merger
Agreement and acknowledges that the Stockholder will benefit
directly and substantially from the consummation of the
transactions contemplated thereby;
WHEREAS, as a
condition and inducement to the willingness of Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub to enter into the Merger
Agreement, Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub
have required that the Stockholder agree to, and the Stockholder
has agreed to, enter into this Agreement; and
WHEREAS, as of the
date hereof and subject to the terms and conditions herein, the
Stockholder has agreed to enter into this Agreement and vote in
favor of the CPT Merger and the transactions contemplated by the
Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1.
Agreement
to Vote.
(a)
From the date
hereof until the Termination Date in accordance with
Section 8
(the
“
Voting
Period
”), at every meeting of the stockholders of CPT
called with respect to any of the following, and at every
adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of CPT with respect
to any of the following, the Stockholder hereby irrevocably and
unconditionally agrees to be present (in person or by proxy) and
vote (or cause to be voted), or (with respect to any written
consent solicitation) deliver (or cause to be delivered) a written
consent with respect to, all of the Subject Shares (as defined
below): (A) in favor of the adoption of the Merger Agreement
and the approval of the transactions contemplated thereby,
including the CPT Merger, and any related proposal in furtherance
thereof; (B) in favor of any proposal to adjourn or postpone
the CPT Stockholders’ Meeting to a later date if there are
not sufficient votes to adopt the Merger Agreement and/or if there
are not sufficient shares present in person or by proxy at the CPT
Stockholders’ Meeting to constitute a quorum; and (C) in
favor of any other matter necessary to consummate the transactions
contemplated by the Merger Agreement. The Stockholder retains the
authority to vote on all other matters.
(b)
At any meeting of
the stockholders of CPT to which
Section 1(a)
above is
applicable, the Stockholder shall, or shall direct the holder(s) of
record of all of the Subject Shares on any applicable record date
to, appear, in person or by proxy, at each meeting or otherwise
cause all of the Subject Shares to be counted as present for
purposes of establishing a quorum. The Stockholder shall provide
Inuvo with at least five (5) Business Days’ written notice
prior to signing any action proposed to be taken by written consent
with respect to any Subject Shares.
(c)
Solely in the event
of a failure by the Stockholder to act in accordance with its
obligations pursuant to
Section 1(a)
and
Section 1(b)
of this Agreement, and except as otherwise expressly provided
herein, the Stockholder hereby irrevocably grants to and appoints
Inuvo (and any designee thereof) as the Stockholder’s proxy
and attorney-in-fact (with full power of substitution), for and in
the name, place and stead of the Stockholder, to (i) represent
the Subject Shares and (ii) vote, execute written consents and
otherwise act (by voting at any meeting of stockholders of CPT or
otherwise) with respect to the Subject Shares, in the case of each
of clause (i) and clause (ii), regarding the matters referred
to in
Section 1(a)
and
Section 1(b)
until, subject to Law, the Termination Date, to the same extent and
with the same effect as the Stockholder could do under Law. The
Stockholder intends the proxy granted pursuant to this
Section 1(c)
to be
irrevocable and coupled with an interest and hereby revokes any
proxy previously granted by the Stockholder with respect to the
Subject Shares. The Stockholder hereby ratifies and confirms all
actions that the proxy appointed hereunder may lawfully do or cause
to be done in accordance with this Agreement. Notwithstanding the
foregoing, this proxy shall automatically be revoked on the
Termination Date. Inuvo may terminate this proxy with respect to
the Stockholder at any time at its sole election by written notice
provided to the Stockholder. The parties acknowledge and agree that
neither Inuvo, nor any of its Affiliates, shall owe any duty
(fiduciary or otherwise), or incur any liability of any kind to the
Stockholder or any of its Affiliates, in connection with or as a
result of the exercise of the powers granted to Inuvo by this
Section 1(c)
.
(d)
The Stockholder
shall use his, her, or its, reasonable best efforts to ensure that
all Jointly Owned Shares are voted in accordance with this
Agreement and are otherwise subject to its terms and restrictions,
including but not limited to the restrictions set forth in
Sections 4 and
5
.
(e)
The following
capitalized terms, as used in this Agreement, shall have the
meanings set forth below:
(i)
“
Beneficial Owner
” shall be
interpreted in accordance with the term “beneficial
owner” as defined in Rule 13d-3 adopted by the SEC under the
Exchange Act;
provided
tha
t notwithstanding the
generality of the foregoing, for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of
any securities which such Person has, at any time during the term
of this Agreement, the right to acquire pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is
exercisable immediately or only after the passage of time
(including the passage of time in excess of sixty days), the
satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “
Beneficial Ownership
,”
“
Beneficially
Own
” and “
Beneficially Owned
” shall have
correlative meanings.
(ii)
Company Shares
” means,
collectively, each share of common stock, par value $0.0001 per
share of CPT.
(iii)
“
Existing Shares
” means, with
respect to the Stockholder, the number of Company Shares
Beneficially Owned and/or owned of record by the Stockholder as of
the date hereof, as set forth on
Schedule A
.
(iv)
“
Jointly Owned Shares
” means any
voting shares of capital stock of CPT beneficially owned by the
Stockholder as to which the Stockholder has joint or shared voting
power with any other person or entity, including but not limited to
such Stockholder’s spouse.
(v)
“
Subject Shares
” means, with
respect to the Stockholder, the Stockholder’s Existing
Shares, together with any Company Shares or other voting capital
stock of CPT of which the Stockholder acquires Beneficial Ownership
on or after the date hereof.
2.
Representations and Warranties of the
Stockholder
. The Stockholder hereby represents and warrants
to Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub with
respect to the Stockholder and the Stockholder’s ownership of
the Subject Shares as follows:
(a)
Authority
. The Stockholder has
all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Stockholder
and constitutes a valid and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Laws relating to
or affecting the rights and remedies of creditors generally and the
effect of general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at Law).
Other than as provided in the Merger Agreement and except for any
filings by the Stockholder with the Securities and Exchange
Commission (the “
SEC
”), the execution, delivery and
performance by the Stockholder of this Agreement does not require
any action by or in respect of, or any notice, report or other
filing by the Stockholder with or to, or any consent, registration,
approval, permit or authorization from, any Governmental Entity
other than any actions or filings the absence of which would not
reasonably be expected to prevent, materially delay or materially
impair the consummation of the transactions contemplated by the
Merger Agreement or the Stockholder’s ability to observe and
perform the Stockholder’s obligations hereunder.
(b)
No Conflicts
. Assuming
compliance with the matters referred to in
Section 2(a)
, neither the
execution and delivery of this Agreement, nor the consummation of
the transactions contemplated hereby, nor compliance with the terms
hereof, will (with or without notice or the passage of time or
both) violate, conflict with or result in a breach of, or
constitute a default (with or without notice or lapse of time or
both) under the Stockholder’s organizational documents, if
any, or under any Contract of, or Law applicable to, the
Stockholder or to the Stockholder’s property or assets. If
the Stockholder is married and any of the Subject Shares constitute
community property or spousal approval is otherwise necessary for
this Agreement to be legal, binding, and enforceable, this
Agreement has been (or promptly shall be) duly executed and
delivered by, and constitutes a valid and legally binding agreement
of, the Stockholder’s spouse, enforceable in accordance with
its terms.
(c)
The Subject Shares
. The
Stockholder is the sole record and beneficial owner of, or is a
trust or estate that is the sole record holder of and whose
beneficiaries are the sole beneficial owners of, and has good and
marketable title to, all of the Existing Shares, free and clear of
any and all Liens and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise
dispose of any Existing Shares), except for (i) any such Liens
arising hereunder or under the Merger Agreement, (ii) Liens
imposed by federal or state securities laws, and (iii) Liens
arising under any contract governing the terms of any awards
granted to such Stockholder pursuant to an incentive compensation
plan other than any of the foregoing that would not prevent,
materially delay or materially impair, the consummation of the
transactions contemplated by the Merger Agreement or the
Stockholder’s ability to observe and perform the
Stockholder’s obligations hereunder. The Stockholder does not
Beneficially Own or own of record any Company Shares other than the
Existing Shares. The Stockholder has, and will have at the time of
each CPT Stockholders’ Meeting occurring prior to the Mergers
with respect to the matters covered by
Section 1(a)
, the sole
right to vote and direct the vote of, and to dispose of and direct
the disposition of, the Subject Shares, and none of the Subject
Shares is subject to any agreement, arrangement or restriction with
respect to the Subject Shares that would prevent or delay the
Stockholder’s ability to perform its obligations hereunder.
Other than this Agreement, there are no agreements or arrangements
of any kind, contingent or otherwise, obligating such Stockholder
to Transfer (as defined below), or cause to be Transferred, any of
the Existing Shares, and no Person has any contractual or other
right or obligation to purchase or otherwise acquire any of the
Subject Shares.
(d)
Reliance by Parent, CPT, CPT Merger
Sub, Inuvo and Inuvo Merger Sub
. The Stockholder understands
and acknowledges that Parent, CPT, CPT Merger Sub, Inuvo and Inuvo
Merger Sub are entering into the Merger Agreement in reliance upon
the Stockholder’s execution, delivery and performance of this
Agreement and upon the representations and warranties, covenants
and other agreements of the Stockholder contained in this
Agreement.
(e)
Litigation
. As of the date
hereof, there is no (i) action, proceeding or investigation
pending or threatened against the Stockholder or any of its
Affiliates; or (ii) outstanding order to which the Stockholder
or any of its Affiliates are subject or bound, in each case, that
would reasonably be expected to or seeks to prevent, materially
delay or materially impair the exercise by Parent of its rights
under this Agreement or the performance by the Stockholder of its
obligations under this Agreement.
(f)
Other Agreements
. Except for
this Agreement, the Stockholder has not: (i) taken any action
that would or would reasonably be expected to (A) constitute
or result in a breach hereof; (B) make any representation or
warranty of the Stockholder set forth in this
Section 2
untrue or
incorrect; or (C) have the effect of preventing or disabling
the Stockholder from performing any of its obligations under this
Agreement; (ii) granted any proxies or powers of attorney, or
any other authorization or consent with respect to any of the
Subject Shares with respect to the matters set forth in
Section 1(a)
;
or (iii) deposited any of the Subject Shares into a separate
voting trust or entered into a voting agreement or arrangement with
respect to any of the Subject Shares.
(g)
Finders Fees
. No broker,
investment bank, financial advisor or other Person is entitled to
any broker’s, finder’s, financial adviser’s or
similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
(h)
Stockholder Has Adequate
Information
. The Stockholder acknowledges that the
Stockholder is a sophisticated investor with respect to the Subject
Shares and has adequate information concerning the business and
financial condition of CPT to make an informed decision regarding
the transactions contemplated by this Agreement and has,
independently and without reliance upon any of Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub or any Affiliate of any of
the foregoing, and based on such information as the Stockholder has
deemed appropriate, made his or its own analysis and decision to
enter into this Agreement. The Stockholder acknowledges that none
of Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub or any
Affiliate of any of the foregoing has made or is making any
representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. The
Stockholder acknowledges that it has had the opportunity to seek
independent legal advice prior to executing this
Agreement.
3.
Representations and Warranties of
Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub
.
Each of Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub has
all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by Parent, CPT,
CPT Merger Sub, Inuvo and Inuvo Merger Sub and constitutes a valid
and binding obligation of Parent, CPT, CPT Merger Sub, Inuvo and
Inuvo Merger Sub enforceable against Parent, CPT, CPT Merger Sub,
Inuvo and Inuvo Merger Sub in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws relating to or affecting
the rights and remedies of creditors generally and the effect of
general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at Law).
Other than as provided in the Merger Agreement and any filings by
Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub with the
SEC, the execution, delivery and performance by Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub of this Agreement does not
require any consent, approval, authorization or permit of, action
by, filing with or notification to any Governmental Entity, other
than any consent, approval, authorization, permit, action, filing
or notification the failure of which to make or obtain would not,
individually or in the aggregate, be reasonably expected to prevent
or materially delay the consummation of the Mergers.
4.
Restrictions on Transfer of Shares and
Proxies
. The Stockholder covenants and agrees that during
the period from the date of this Agreement through the Termination
Date, the Stockholder will not, directly or indirectly,
(i) transfer, assign, sell, pledge, encumber, hypothecate or
otherwise dispose of (whether by merger, by tendering into any
tender or exchange offer, by testamentary disposition, by operation
of law or otherwise) or consent to any of the foregoing
(“
Transfer
”), or
cause to be Transferred, any of the Subject Shares; (ii) grant
any proxies or powers of attorney, or any other authorization or
consent with respect to any or all of its Subject Shares in respect
of any matter addressed by this Agreement; (iii) deposit any
of the Subject Shares into a voting trust or enter into a voting
agreement or arrangement with respect to any of the Subject Shares
or grant any proxy or power of attorney with respect thereto that
is inconsistent with this Agreement, (iv) enter into any Contract
with respect to the Transfer of any Subject Shares; or
(v) take any other action, that would restrict, limit or
interfere with the performance of the Stockholder’s
obligations hereunder. The foregoing restrictions on Transfers of
Subject Shares shall not prohibit any such Transfers by the
Stockholder in connection with the transactions contemplated by the
Merger Agreement. Any purported Transfer of the Subject Shares in
violation of this
Section 4
shall be null
and void
ab
initio
.
5.
Stop Transfer; Changes in Subject
Shares
. The Stockholder hereby agrees with, and covenants
to, Inuvo and Parent that (a) this Agreement and the
obligations hereunder shall attach to the Subject Shares and shall
be binding upon any Person or entity to which legal or Beneficial
Ownership shall pass, whether by operation of Law or otherwise,
including its successors or assigns; and (b) such Stockholder
shall not request that CPT register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest
representing any or all of its Subject Shares. In the event of a
stock split, stock dividend or distribution, or any change in
Company Shares by reason of any split-up, reverse stock split,
recapitalization, combination, reclassification, exchange of
Company Shares or the like, the terms “Existing Shares”
and “Subject Shares” shall be deemed to refer to and
include such Company Shares as well as all such stock splits,
dividends and distributions and any securities into which or for
which any or all of such Company Shares may be converted, changed
or exchanged or which are otherwise received in such
transaction.
6.
Documentation and Information
.
The Stockholder hereby (a) consents to and authorizes the
publication and disclosure by CPT, Inuvo, Parent and/or their
respective Affiliates of its identity and holdings of the Subject
Shares and the nature of its commitments and obligations under this
Agreement in any announcement, the Joint Proxy
Statement/Prospectus, the Registration Statement or any other
disclosure document or filing with or notice to a Governmental
Entity in connection with the Mergers or any of the transactions
contemplated by the Merger Agreement, and (b) agrees as
promptly as practicable to give to CPT, Inuvo and Parent any
information it may reasonably require for the preparation of any
such disclosure documents. The Stockholder hereby agrees to as
promptly as practicable notify CPT, Inuvo and Parent of any
required corrections with respect to any written information
supplied by the Stockholder specifically for use in any such
disclosure document, filing or notice if and to the extent that any
shall contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. The
Stockholder hereby agrees to notify Inuvo and Parent in writing as
promptly as practicable of the number of any additional Subject
Shares or other securities of CPT of which the Stockholder acquires
Beneficial Ownership on or after the date hereof. Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub each hereby consent to and
authorize the Stockholder and its Affiliates, to the extent the
Stockholder or such Affiliates determine it to be necessary or
advisable under applicable Law, to publish and disclose in all
documents and schedules filed with the SEC (including any amendment
to the Stockholder’s Schedule 13D) and all documents and
schedules filed with the Federal Trade Commission or the Department
of Justice, and any press release or other disclosure document or
filing in connection with the Mergers or any of the transactions
contemplated by the Merger Agreement or this Agreement, a copy of
this Agreement, each of the other party’s identities and the
nature of the Stockholder’s commitments and obligations under
this Agreement.
7.
Waiver of Dissenters’ or
Appraisal Rights
. The Stockholder hereby waives, to the full
extent of the law, and agrees not to assert, any dissenters’
or appraisal rights pursuant to Section 262 of the Delaware
General Corporation Law or otherwise in connection with the CPT
Merger with respect to any and all Subject Shares.
8.
Termination.
This Agreement
shall automatically terminate without further action upon the
earliest to occur of (a) the Effective Time and (b) the
termination of the Merger Agreement in accordance with its terms
(the date and time at which the earliest of clause (a) and clause
(b) occurs being, the “
Termination Date
”). Upon
termination of this Agreement, no party shall have any further
obligations or liabilities under this Agreement;
provided
,
however
, that (i) nothing
set forth in this
Section 8
shall relieve
any party from liability for any breach of this Agreement occurring
prior to the termination hereof; and (ii) the provisions of
this
Section 8
and
Section 10
through
Section 19
shall survive
any termination of this Agreement.
9.
Further Assurances
. Each party
hereto shall execute and deliver such additional instruments and
other documents and shall take such further actions as may be
necessary or desirable to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated
thereby.
10.
Notices
.
Any notice, request, instruction or
other document or communication to be given to any party hereunder
shall be in writing and delivered personally or sent by registered
or certified mail, postage prepaid, or by facsimile, email or
overnight courier:
if to
Parent, CPT, CPT Merger Sub or Inuvo Merger Sub to:
ConversionPoint
Technologies, Inc.
840
Newport Center Drive
Newport
Beach, CA 92660
Attention: Robert
Tallack, CEO
with
copies to:
Troutman Sanders
LLP
5 Park
Plaza, 14
th
Floor
Irvine,
CA 92614
Attention: Larry A.
Cerutti, Esq.
Email:
larry.cerutti@troutmansanders.com
Facsimile No.:
(949) 622-2739
if to
Inuvo, to:
Inuvo,
Inc.
500
President Clinton Avenue, Suite 300
Little
Rock, AR 72201
Attention: Richard
K. Howe, Chairman and CEO
with
copies to:
Porter
Wright Morris & Arthur LLP
41
South High Street, Suite 2900
Columbus, OH
43215
Attention: Jeremy
D. Siegfried, Esq.
Email:
jsiegfried@porterwright.com
Facsimile No.:
(614) 227-2100
if to
the Stockholder, to:
_________________________
_________________________
_________________________
_________________________
Email:
Facsimile
No.:
or to
such other persons or addresses as may be designated in writing by
the party to receive such notice as provided above. Any notice,
request, instruction or other document given as provided above
shall be deemed given to the receiving party upon actual receipt,
if delivered personally; five (5) Business Days after deposit in
the mail, if sent by registered or certified mail; upon telephonic
or written confirmation of receipt (excluding out of office
replies) if sent by facsimile or email; or on the next Business Day
after deposit with an overnight courier, if sent by an overnight
courier.
11.
Amendment,
Waivers, etc.
(a)
Subject to the
provisions of applicable Law, any provision of this Agreement may
be amended or waived prior to the Effective Time if, but only if,
such amendment or waiver is in writing and is signed, in the case
of an amendment, by each party to this Agreement or, in the case of
a waiver, by each party against whom the waiver is to be
effective.
(b)
No failure or delay
by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by Law.
12.
Expenses
. All costs and
expenses incurred in connection with this Agreement shall be paid
by the party incurring such cost or expense.
13.
Binding Effect; Benefit;
Assignment
. The provisions of this Agreement shall be
binding upon and shall inure solely to the benefit of the parties
hereto and their respective successors and assigns and no provision
of this Agreement is intended to, and no provision of this
Agreement does, confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties
hereto and their respective successors and assigns. No party may
assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other
party hereto.
14.
Stockholder Capacity.
The
Stockholder is executing and entering into this Agreement solely in
the Stockholder’s capacity as a stockholder of CPT, and not
in the Stockholder’s capacity as a director, officer,
employee, agent or consultant of CPT. Notwithstanding anything
herein to the contrary, nothing herein shall in any way restrict a
director of CPT in the taking of any actions (or failure to act) in
his or her capacity as a director of CPT, or in the exercise
of his or her fiduciary duties as a director of CPT, or prevent or
be construed to create any obligation on the part of any director
or officer of CPT from taking any action in his or her capacity as
such director, and no action taken solely in the capacity as a
director of CPT shall be deemed to constitute a breach of this
Agreement.
15.
Governing
Law; Jurisdiction.
(a)
This Agreement
shall be governed by, and construed in accordance with, the laws of
the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws
thereof.
(b)
Each of the Parties
hereto irrevocably and unconditionally agrees that any legal action
or Proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement
of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other Party hereto or
its successors or assigns, shall be brought and determined
exclusively in the Delaware Court of Chancery (or, if (and only if)
the Court of Chancery does not accept jurisdiction over a
particular matter, any court within the State of Delaware). Each of
the Parties hereto hereby irrevocably submits with regard to any
such action or Proceeding for itself and in respect of its
property, generally and unconditionally, to the exclusive personal
jurisdiction of the aforesaid courts and agrees that it will not
bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than
the aforesaid courts. Each of the Parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or Proceeding with respect
to this Agreement, (i) any claim that it is not personally
subject to the jurisdiction of the above-named courts for any
reason, (ii) any claim that it or its property is exempt or
immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and
(iii) to the fullest extent permitted by applicable Law, any
claim that (A) the suit, action or Proceeding in such court is
brought in an inconvenient forum, (B) the venue of such suit,
action or Proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
Each of the Parties hereby agrees that service of any process,
summons, notice or document by U.S. registered mail to the
respective addresses set forth in
Section 10
shall be effective
service of process for any suit or proceeding in connection with
this Agreement or the transactions contemplated
hereby.
16.
WAIVER OF JURY TRIAL
. EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED BY THE PARTIES
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH
WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS
SECTION 16
.
17.
Counterparts
. This Agreement
may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same
agreement.
18.
Entire Agreement
.
This Agreement constitutes the entire
agreement, and supersedes all other prior agreements,
understandings, representations and warranties both written and
oral, among the parties, with respect to the subject matter of this
Agreement.
19.
Severability
. The provisions of
this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. If any
provision of this Agreement, or the application of such provision
to any Person or any circumstance, is invalid or unenforceable,
(a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the
application of such provision, in any other
jurisdiction.
20.
Specific Performance
. The
Parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Parties shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity. Each of the parties agrees
that it will not oppose the granting of an injunction, specific
performance and other equitable relief on the basis that any other
party has an adequate remedy at law or that any award of specific
performance is not an appropriate remedy for any reason at law or
in equity. Any party seeking an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the
terms and provisions of this Agreement shall not be required to
provide any bond or other security in connection with any such
order or injunction.
21.
Joint Negotiation
. The parties
have participated jointly in negotiating and drafting this
Agreement. In the event that an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provision of this Agreement.
[
Remainder
of page intentionally left blank
]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
|
CONVERSIONPOINT
HOLDINGS, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
CONVERSIONPOINT
TECHNOLOGIES, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
INUVO,
INC.
Name:
Richard K. Howe
Title:
Chairman and Chief Executive Officer
CPT
MERGER SUB, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
CPT
CIGAR MERGER SUB, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
STOCKHOLDER
Name:
|
SCHEDULE A
SUPPORT AGREEMENT
THIS
SUPPORT AGREEMENT (this “
Agreement
”), dated as of November
2, 2018, is entered into by and among ConversionPoint Technologies,
Inc., a Delaware corporation (“
CPT
”), ConversionPoint Holdings,
Inc., a Delaware corporation (“
Parent
”), a wholly-owned
Subsidiary of CPT, CPT Merger Sub, a Delaware corporation and a
wholly-owned Subsidiary of Parent (“
CPT Merger Sub
”), CPT Cigar Merger
Sub, Inc., a Nevada corporation and a wholly-owned Subsidiary of
Parent (“
Inuvo Merger
Sub
”), Inuvo, Inc., a Nevada corporation
(“
Inuvo
”), and
[●] (the “
Stockholder
”). Each of Parent,
CPT, CPT Merger Sub, Inuvo Merger Sub and Inuvo is a
“
Party
” and
together, the “
Parties
.” Capitalized terms used
and not otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, as of the
date hereof, the Stockholder is the record and Beneficial Owner (as
defined below) of the Existing Shares (as defined below), and has
sole investment power over, the Existing Shares;
WHEREAS,
concurrently with the execution of this Agreement, Parent, CPT,
Inuvo, CPT Merger Sub and Inuvo Merger Sub have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the
“
Merger
Agreement
”), providing for, among other things and
subject to the terms and conditions of the Merger Agreement: (i) a
merger of CPT Merger Sub with and into CPT, with CPT being the
surviving entity and becoming a wholly-owned Subsidiary of Parent
(the “
CPT
Merger
”), (ii) the merger of Inuvo Merger Sub with and
into Inuvo, with Inuvo being the surviving entity and becoming a
wholly-owned Subsidiary of Parent (the “
Inuvo Merger
” and, together with
the CPT Merger, the “
Mergers
”), on the terms and
subject to the conditions set forth in the Merger
Agreement;
WHEREAS, the
Stockholder has been provided with the execution copy of the Merger
Agreement and acknowledges that the Stockholder will benefit
directly and substantially from the consummation of the
transactions contemplated thereby;
WHEREAS, as a
condition and inducement to the willingness of Parent, CPT, CPT
Merger Sub, Inuvo and Inuvo Merger Sub to enter into the Merger
Agreement, Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub
have required that the Stockholder agree to, and the Stockholder
has agreed to, enter into this Agreement; and
WHEREAS, as of the
date hereof and subject to the terms and conditions herein, the
Stockholder has agreed to enter into this Agreement and vote in
favor of the Inuvo Merger and the transactions contemplated by the
Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1.
Agreement
to Vote.
(a)
From the date
hereof until the Termination Date in accordance with
Section 8
(the
“
Voting
Period
”), at every meeting of the stockholders of
Inuvo called with respect to any of the following, and at every
adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of Inuvo with
respect to any of the following, the Stockholder hereby irrevocably
and unconditionally agrees to be present (in person or by proxy)
and vote (or cause to be voted), or (with respect to any written
consent solicitation) deliver (or cause to be delivered) a written
consent with respect to, all of the Subject Shares (as defined
below): (A) in favor of the adoption of the Merger Agreement
and the approval of the transactions contemplated thereby,
including the Inuvo Merger, and any related proposal in furtherance
thereof; (B) in favor of any proposal to adjourn or postpone
the Inuvo Stockholders’ Meeting to a later date if there are
not sufficient votes to adopt the Merger Agreement and/or if there
are not sufficient shares present in person or by proxy at the
Inuvo Stockholders’ Meeting to constitute a quorum;
(C) in favor of any other matter necessary to consummate the
transactions contemplated by the Merger Agreement; and
(D) against the following actions: (1) any merger, tender
offer, exchange offer, sale of all or substantially all assets,
recapitalization, reorganization, consolidation, share exchange,
business combination, liquidation, dissolution or similar
transaction or series of transactions involving Inuvo, any of its
Subsidiaries and any other Person (including any Inuvo Takover
Proposal), other than the Mergers and (2) any other action or
agreement that would reasonably be expected to impede, frustrate,
interfere with, delay, postpone or adversely affect the Mergers or
any other transaction contemplated by the Merger Agreement,
including the consummation thereof. The Stockholder retains the
authority to vote on all other matters.
(b)
At any meeting of
the stockholders of Inuvo to which
Section 1(a)
above is
applicable, the Stockholder shall, or shall direct the holder(s) of
record of all of the Subject Shares on any applicable record date
to, appear, in person or by proxy, at each meeting or otherwise
cause all of the Subject Shares to be counted as present for
purposes of establishing a quorum. The Stockholder shall provide
CPT with at least five (5) Business Days’ written notice
prior to signing any action proposed to be taken by written consent
with respect to any Subject Shares.
(c)
Solely in the event
of a failure by the Stockholder to act in accordance with its
obligations pursuant to
Section 1(a)
and
Section 1(b)
of this Agreement, and except as otherwise expressly provided
herein, the Stockholder hereby irrevocably grants to and appoints
CPT (and any designee thereof) as the Stockholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Stockholder, to (i) represent the
Subject Shares and (ii) vote, execute written consents and
otherwise act (by voting at any meeting of stockholders of Inuvo or
otherwise) with respect to the Subject Shares, in the case of each
of clause (i) and clause (ii), regarding the matters referred
to in
Section 1(a)
and
Section 1(b)
until, subject to Law, the Termination Date, to the same extent and
with the same effect as the Stockholder could do under Law. The
Stockholder intends the proxy granted pursuant to this
Section 1(c)
to be
irrevocable and coupled with an interest and hereby revokes any
proxy previously granted by the Stockholder with respect to the
Subject Shares. The Stockholder hereby ratifies and confirms all
actions that the proxy appointed hereunder may lawfully do or cause
to be done in accordance with this Agreement. Notwithstanding the
foregoing, this proxy shall automatically be revoked on the
Termination Date. CPT may terminate this proxy with respect to the
Stockholder at any time at its sole election by written notice
provided to the Stockholder. The parties acknowledge and agree that
neither CPT, nor any of its Affiliates, shall owe any duty
(fiduciary or otherwise), or incur any liability of any kind to the
Stockholder or any of its Affiliates, in connection with or as a
result of the exercise of the powers granted to CPT by this
Section 1(c)
.
(d)
The Stockholder
shall use his, her, or its, reasonable best efforts to ensure that
all Jointly Owned Shares are voted in accordance with this
Agreement and are otherwise subject to its terms and restrictions,
including but not limited to the restrictions set forth in
Sections 4 and
5
.
(e)
The following
capitalized terms, as used in this Agreement, shall have the
meanings set forth below:
(i)
“
Beneficial
Owner
” shall be interpreted in accordance with the
term “beneficial owner” as defined in Rule 13d-3
adopted by the SEC under the Exchange Act;
provided
tha
t notwithstanding the
generality of the foregoing, for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of
any securities which such Person has, at any time during the term
of this Agreement, the right to acquire pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is
exercisable immediately or only after the passage of time
(including the passage of time in excess of sixty days), the
satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “
Beneficial Ownership
,”
“
Beneficially
Own
” and “
Beneficially Owned
” shall have
correlative meanings.
(ii)
“
Company Shares
” means,
collectively, each share of common stock, par value $0.001 per
share of Inuvo.
(iii)
“
Existing Shares
” means, with
respect to the Stockholder, the number of Company Shares
Beneficially Owned and/or owned of record by the Stockholder as of
the date hereof, as set forth on
Schedule A
.
(iv)
“
Jointly Owned Shares
” means any
voting shares of capital stock of Inuvo beneficially owned by the
Stockholder as to which the Stockholder has joint or shared voting
power with any other person or entity, including but not limited to
such Stockholder’s spouse.
(v)
“
Subject Shares
” means, with
respect to the Stockholder, the Stockholder’s Existing
Shares, together with any Company Shares or other voting capital
stock of Inuvo of which the Stockholder acquires Beneficial
Ownership on or after the date hereof.
2.
Representations and Warranties of the
Stockholder
. The Stockholder hereby represents and warrants
to Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub with
respect to the Stockholder and the Stockholder’s ownership of
the Subject Shares as follows:
(a)
Authority
. The Stockholder has
all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Stockholder
and constitutes a valid and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Laws relating to
or affecting the rights and remedies of creditors generally and the
effect of general principles of equity (regardless of whether such
enforceability is considered in a Proceeding in equity or at Law).
Other than as provided in the Merger Agreement and except for any
filings by the Stockholder with the Securities and Exchange
Commission (the “
SEC
”), the execution, delivery and
performance by the Stockholder of this Agreement does not require
any action by or in respect of, or any notice, report or other
filing by the Stockholder with or to, or any consent, registration,
approval, permit or authorization from, any Governmental Entity
other than any actions or filings the absence of which would not
reasonably be expected to prevent, materially delay or materially
impair the consummation of the transactions contemplated by the
Merger Agreement or the Stockholder’s ability to observe and
perform the Stockholder’s obligations hereunder.
(b)
No Conflicts
. Assuming
compliance with the matters referred to in
Section 2(a)
, neither the
execution and delivery of this Agreement, nor the consummation of
the transactions contemplated hereby, nor compliance with the terms
hereof, will (with or without notice or the passage of time or
both) violate, conflict with or result in a breach of, or
constitute a default (with or without notice or lapse of time or
both) under the Stockholder’s organizational documents, if
any, or under any Contract of, or Law applicable to, the
Stockholder or to the Stockholder’s property or assets. If
the Stockholder is married and any of the Subject Shares constitute
community property or spousal approval is otherwise necessary for
this Agreement to be legal, binding, and enforceable, this
Agreement has been (or promptly shall be) duly executed and
delivered by, and constitutes a valid and legally binding agreement
of, the Stockholder’s spouse, enforceable in accordance with
its terms.
(c)
The Subject Shares
. The
Stockholder is the sole record and beneficial owner of, or is a
trust or estate that is the sole record holder of and whose
beneficiaries are the sole beneficial owners of, and has good and
marketable title to, all of the Existing Shares, free and clear of
any and all Liens and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise
dispose of any Existing Shares), except for (i) any such Liens
arising hereunder or under the Merger Agreement, (ii) Liens
imposed by federal or state securities laws, (iii) Liens
imposed pursuant to any written policies of Inuvo with respect to
restrictions upon the trading of securities under applicable
securities laws, and (iv) Liens arising under any contract
governing the terms of any awards granted to such Stockholder
pursuant to an incentive compensation plan other than any of the
foregoing that would not prevent, materially delay or materially
impair, the consummation of the transactions contemplated by the
Merger Agreement or the Stockholder’s ability to observe and
perform the Stockholder’s obligations hereunder. The
Stockholder does not Beneficially Own or own of record any Company
Shares other than the Existing Shares. The Stockholder has, and
will have at the time of each Inuvo Stockholders’ Meeting
occurring prior to the Mergers with respect to the matters covered
by
Section 1(a)
, the sole
right to vote and direct the vote of, and to dispose of and direct
the disposition of, the Subject Shares, and none of the Subject
Shares is subject to any agreement, arrangement or restriction with
respect to the Subject Shares that would prevent or delay the
Stockholder’s ability to perform its obligations hereunder.
Other than this Agreement, there are no agreements or arrangements
of any kind, contingent or otherwise, obligating such Stockholder
to Transfer (as defined below), or cause to be Transferred, any of
the Existing Shares, and no Person has any contractual or other
right or obligation to purchase or otherwise acquire any of the
Subject Shares.
(d)
Reliance by Parent, CPT, CPT Merger
Sub, Inuvo and Inuvo Merger Sub
. The Stockholder understands
and acknowledges that Parent, CPT, CPT Merger Sub, Inuvo and Inuvo
Merger Sub are entering into the Merger Agreement in reliance upon
the Stockholder’s execution, delivery and performance of this
Agreement and upon the representations and warranties, covenants
and other agreements of the Stockholder contained in this
Agreement.
(e)
Litigation
. As of the date
hereof, there is no (i) action, proceeding or investigation
pending or threatened against the Stockholder or any of its
Affiliates; or (ii) outstanding order to which the Stockholder
or any of its Affiliates are subject or bound, in each case, that
would reasonably be expected to or seeks to prevent, materially
delay or materially impair the exercise by Parent of its rights
under this Agreement or the performance by the Stockholder of its
obligations under this Agreement.
(f)
Other Agreements
. Except for
this Agreement, the Stockholder has not: (i) taken any action
that would or would reasonably be expected to (A) constitute
or result in a breach hereof; (B) make any representation or
warranty of the Stockholder set forth in this
Section 2
untrue or
incorrect; or (C) have the effect of preventing or disabling
the Stockholder from performing any of its obligations under this
Agreement; (ii) granted any proxies or powers of attorney, or
any other authorization or consent with respect to any of the
Subject Shares with respect to the matters set forth in
Section 1(a)
;
or (iii) deposited any of the Subject Shares into a separate
voting trust or entered into a voting agreement or arrangement with
respect to any of the Subject Shares.
(g)
Finders Fees
. No broker,
investment bank, financial advisor or other Person is entitled to
any broker’s, finder’s, financial adviser’s or
similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
(h)
Stockholder Has Adequate
Information
. The Stockholder acknowledges that the
Stockholder is a sophisticated investor with respect to the Subject
Shares and has adequate information concerning the business and
financial condition of CPT to make an informed decision regarding
the transactions contemplated by this Agreement and has,
independently and without reliance upon any of Parent, CPT, CPT
Merger Sub, Inuvo, and Inuvo Merger Sub, or any Affiliate of any of
the foregoing, and based on such information as the Stockholder has
deemed appropriate, made his or its own analysis and decision to
enter into this Agreement. The Stockholder acknowledges that none
of Parent, CPT, CPT Merger Sub, Inuvo, or Inuvo Merger Sub or any
Affiliate of any of the foregoing has made or is making any
representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. The
Stockholder acknowledges that it has had the opportunity to seek
independent legal advice prior to executing this
Agreement.
3.
Representations and Warranties of
Parent, CPT, CPT Merger Sub, Inuvo, and Inuvo Merger Sub
.
Each of Parent, CPT, CPT Merger Sub, Inuvo, and Inuvo Merger Sub
has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by
Parent, CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub and
constitutes a valid and binding obligation of Parent, CPT, CPT
Merger Sub, Inuvo, and Inuvo Merger Sub enforceable against Parent,
CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub in accordance with
its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar Laws
relating to or affecting the rights and remedies of creditors
generally and the effect of general principles of equity
(regardless of whether such enforceability is considered in a
Proceeding in equity or at Law). Other than as provided in the
Merger Agreement and any filings by Parent, CPT, CPT Merger Sub,
Inuvo and Inuvo Merger Sub with the SEC, the execution, delivery
and performance by Parent, CPT, CPT Merger Sub, Inuvo and Inuvo
Merger Sub of this Agreement does not require any consent,
approval, authorization or permit of, action by, filing with or
notification to any Governmental Entity, other than any consent,
approval, authorization, permit, action, filing or notification the
failure of which to make or obtain would not, individually or in
the aggregate, be reasonably expected to prevent or materially
delay the consummation of the Mergers.
4.
Restrictions on Transfer of Shares and
Proxies
. The Stockholder covenants and agrees that during
the period from the date of this Agreement through the Termination
Date, the Stockholder will not, directly or indirectly,
(i) transfer, assign, sell, pledge, encumber, hypothecate or
otherwise dispose of (whether by merger, by tendering into any
tender or exchange offer, by testamentary disposition, by operation
of law or otherwise) or consent to any of the foregoing
(“
Transfer
”), or
cause to be Transferred, any of the Subject Shares; (ii) grant
any proxies or powers of attorney, or any other authorization or
consent with respect to any or all of its Subject Shares in respect
of any matter addressed by this Agreement; (iii) deposit any
of the Subject Shares into a voting trust or enter into a voting
agreement or arrangement with respect to any of the Subject Shares
or grant any proxy or power of attorney with respect thereto that
is inconsistent with this Agreement, (iv) enter into any Contract
with respect to the Transfer of any Subject Shares; or
(v) take any other action, that would restrict, limit or
interfere with the performance of the Stockholder’s
obligations hereunder. The foregoing restrictions on Transfers of
Subject Shares shall not prohibit any such Transfers by the
Stockholder in connection with the transactions contemplated by the
Merger Agreement. Any purported Transfer of the Subject Shares in
violation of this
Section 4
shall be null
and void
ab
initio
.
5.
Stop Transfer; Changes in Subject
Shares
. The Stockholder hereby agrees with, and covenants
to, CPT and Parent that (a) this Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding
upon any Person or entity to which legal or Beneficial Ownership
shall pass, whether by operation of Law or otherwise, including its
successors or assigns; and (b) such Stockholder shall not
request that Inuvo register the transfer (book-entry or otherwise)
of any certificate or uncertificated interest representing any or
all of its Subject Shares. In the event of a stock split, stock
dividend or distribution, or any change in Company Shares by reason
of any split-up, reverse stock split, recapitalization,
combination, reclassification, exchange of Company Shares or the
like, the terms “Existing Shares” and “Subject
Shares” shall be deemed to refer to and include such Company
Shares as well as all such stock splits, dividends and
distributions and any securities into which or for which any or all
of such Company Shares may be converted, changed or exchanged or
which are otherwise received in such transaction.
6.
Documentation and Information
.
The Stockholder hereby (a) consents to and authorizes the
publication and disclosure by CPT, Inuvo, Parent and/or their
respective Affiliates of its identity and holdings of the Subject
Shares and the nature of its commitments and obligations under this
Agreement in any announcement, the Joint Proxy
Statement/Prospectus, the Registration Statement or any other
disclosure document or filing with or notice to a Governmental
Entity in connection with the Mergers or any of the transactions
contemplated by the Merger Agreement, and (b) agrees as
promptly as practicable to give to CPT, Inuvo and Parent any
information it may reasonably require for the preparation of any
such disclosure documents. The Stockholder hereby agrees to as
promptly as practicable notify CPT, Inuvo and Parent of any
required corrections with respect to any written information
supplied by the Stockholder specifically for use in any such
disclosure document, filing or notice if and to the extent that any
shall contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. The
Stockholder hereby agrees to notify CPT and Parent in writing as
promptly as practicable of the number of any additional Subject
Shares or other securities of Inuvo of which the Stockholder
acquires Beneficial Ownership on or after the date hereof. Parent,
CPT, CPT Merger Sub, Inuvo and Inuvo Merger Sub each hereby consent
to and authorize the Stockholder and its Affiliates, to the extent
the Stockholder or such Affiliates determine it to be necessary or
advisable under applicable Law, to publish and disclose in all
documents and schedules filed with the SEC (including any amendment
to the Stockholder’s Schedule 13D) and all documents and
schedules filed with the Federal Trade Commission or the Department
of Justice, and any press release or other disclosure document or
filing in connection with the Mergers or any of the transactions
contemplated by the Merger Agreement or this Agreement, a copy of
this Agreement, each of the other party’s identities and the
nature of the Stockholder’s commitments and obligations under
this Agreement.
7.
[Intentionally
Omitted.]
8.
Termination.
This Agreement
shall automatically terminate without further action upon the
earliest to occur of (a) the Effective Time and (b) the
termination of the Merger Agreement in accordance with its terms
(the date and time at which the earliest of clause (a) and clause
(b) occurs being, the “
Termination Date
”). Upon
termination of this Agreement, no party shall have any further
obligations or liabilities under this Agreement;
provided
,
however
, that (i) nothing
set forth in this
Section 8
shall relieve
any party from liability for any breach of this Agreement occurring
prior to the termination hereof; and (ii) the provisions of
this
Section 8
and
Section 10
through
Section 19
shall survive
any termination of this Agreement.
9.
Further Assurances
. Each party
hereto shall execute and deliver such additional instruments and
other documents and shall take such further actions as may be
necessary or desirable to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated
thereby.
10.
Notices
.
Any notice, request, instruction or
other document or communication to be given to any party hereunder
shall be in writing and delivered personally or sent by registered
or certified mail, postage prepaid, or by facsimile, email or
overnight courier:
if to
Parent, CPT, CPT Merger Sub or Inuvo Merger Sub, to:
ConversionPoint
Technologies, Inc.
840
Newport Center Drive
Newport
Beach, CA 92660
Attention: Robert
Tallack, CEO
Email:
[●]
Facsimile No.:
[●]
with
copies to:
Troutman Sanders
LLP
5 Park
Plaza, 14
th
Floor
Irvine,
CA 92614
Attention: Larry A.
Cerutti, Esq.
Email:
larry.cerutti@troutmansanders.com
Facsimile No.:
(949) 622-2739
if to
Inuvo, to:
Inuvo,
Inc.
500
President Clinton Avenue, Suite 300
Little
Rock, AR 72201
Attention: Richard
K. Howe, Chairman and CEO
Email:
[●]
Facsimile No.:
[●]
with
copies to:
Porter
Wright Morris & Arthur LLP
41
South High Street, Suite 2900
Columbus, OH
43215
Attention: Jeremy
D. Siegfried, Esq.
Email:
jsiegfried@porterwright.com
Facsimile No.:
(614) 227-2100
if to
the Stockholder, to:
[●]
or to
such other persons or addresses as may be designated in writing by
the party to receive such notice as provided above. Any notice,
request, instruction or other document given as provided above
shall be deemed given to the receiving party upon actual receipt,
if delivered personally; five (5) Business Days after deposit in
the mail, if sent by registered or certified mail; upon telephonic
or written confirmation of receipt (excluding out of office
replies) if sent by facsimile or email; or on the next Business Day
after deposit with an overnight courier, if sent by an overnight
courier.
11.
Amendment,
Waivers, etc.
(a)
Subject to the
provisions of applicable Law, any provision of this Agreement may
be amended or waived prior to the Effective Time if, but only if,
such amendment or waiver is in writing and is signed, in the case
of an amendment, by each party to this Agreement or, in the case of
a waiver, by each party against whom the waiver is to be
effective.
(b)
No failure or delay
by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by Law.
12.
Expenses
. All costs and
expenses incurred in connection with this Agreement shall be paid
by the party incurring such cost or expense.
13.
Binding Effect; Benefit;
Assignment
. The provisions of this Agreement shall be
binding upon and shall inure solely to the benefit of the parties
hereto and their respective successors and assigns and no provision
of this Agreement is intended to, and no provision of this
Agreement does, confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties
hereto and their respective successors and assigns. No party may
assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other
party hereto.
14.
Stockholder
Capacity.
The Stockholder is executing and entering into
this Agreement solely in the Stockholder’s capacity as a
stockholder of Inuvo, and not in the Stockholder’s capacity
as a director, officer, employee, agent or consultant of Inuvo.
Notwithstanding anything herein to the contrary, nothing herein
shall in any way restrict a director of Inuvo in the taking of any
actions (or failure to act) in his or her capacity as a
director of Inuvo, or in the exercise of his or her fiduciary
duties as a director of Inuvo, or prevent or be construed to create
any obligation on the part of any director or officer of Inuvo from
taking any action in his or her capacity as such director, and no
action taken solely in the capacity as a director of Inuvo shall be
deemed to constitute a breach of this Agreement.
15.
Governing
Law; Jurisdiction.
(a)
This Agreement
shall be governed by, and construed in accordance with, the laws of
the State of Nevada, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws
thereof.
(b)
Each of the Parties
hereto irrevocably and unconditionally agrees that any legal action
or Proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement
of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other Party hereto or
its successors or assigns, shall be brought and determined
exclusively in the Delaware Court of Chancery (or, if (and only if)
the Court of Chancery does not accept jurisdiction over a
particular matter, any court within the State of Delaware). Each of
the Parties hereto hereby irrevocably submits with regard to any
such action or Proceeding for itself and in respect of its
property, generally and unconditionally, to the exclusive personal
jurisdiction of the aforesaid courts and agrees that it will not
bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than
the aforesaid courts. Each of the Parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or Proceeding with respect
to this Agreement, (i) any claim that it is not personally
subject to the jurisdiction of the above-named courts for any
reason, (ii) any claim that it or its property is exempt or
immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and
(iii) to the fullest extent permitted by applicable Law, any
claim that (A) the suit, action or Proceeding in such court is
brought in an inconvenient forum, (B) the venue of such suit,
action or Proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
Each of the Parties hereby agrees that service of any process,
summons, notice or document by U.S. registered mail to the
respective addresses set forth in
Section 10
shall be effective
service of process for any suit or proceeding in connection with
this Agreement or the transactions contemplated
hereby.
16.
WAIVER OF JURY TRIAL
. EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED BY THE PARTIES
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH
WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 16
.
17.
Counterparts
. This Agreement
may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same
agreement.
18.
Entire Agreement
.
This Agreement constitutes the entire
agreement, and supersedes all other prior agreements,
understandings, representations and warranties both written and
oral, among the parties, with respect to the subject matter of this
Agreement.
19.
Severability
. The provisions of
this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. If any
provision of this Agreement, or the application of such provision
to any Person or any circumstance, is invalid or unenforceable,
(a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the
application of such provision, in any other
jurisdiction.
20.
Specific Performance
. The
Parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Parties shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity. Each of the parties agrees
that it will not oppose the granting of an injunction, specific
performance and other equitable relief on the basis that any other
party has an adequate remedy at law or that any award of specific
performance is not an appropriate remedy for any reason at law or
in equity. Any party seeking an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the
terms and provisions of this Agreement shall not be required to
provide any bond or other security in connection with any such
order or injunction.
21.
Joint Negotiation
. The parties
have participated jointly in negotiating and drafting this
Agreement. In the event that an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provision of this Agreement.
[
Remainder
of page intentionally left blank
]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
|
CONVERSIONPOINT
HOLDINGS, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
CONVERSIONPOINT
TECHNOLOGIES, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
INUVO,
INC.
Name:
Richard K. Howe
Title:
Chairman and Chief Executive Officer
CPT
MERGER SUB, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
CPT
CIGAR MERGER SUB, INC.
Name: Robert
Tallack
Title:
Chief Executive Officer
STOCKHOLDER
Name:__________________
|
SCHEDULE A
EXHIBIT B
CPT CERTIFICATE OF MERGER
CERTIFICATE OF MERGER OF
CPT MERGER SUB, INC.
,
a
Delaware corporation
WITH AND INTO
CONVERSIONPOINT TECHNOLOGIES, INC.
,
a
Delaware corporation
Pursuant to Title
8, Section 251 of the Delaware General Corporation Law, the
undersigned corporation hereby certifies:
FIRST:
The name of the surviving corporation is ConversionPoint
Technologies, Inc., a Delaware corporation (the “
Surviving Corporation
”), and the
name of the corporation being merged into the Surviving Corporation
is CPT Merger Sub, Inc., a Delaware corporation (the
“
Merging
Corporation
”).
SECOND:
The Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by the Surviving Corporation
and the Merging Corporation.
THIRD:
The name of the Surviving Corporation is ConversionPoint
Technologies, Inc., a Delaware corporation.
FOURTH:
The Certificate of Incorporation of the Surviving Corporation, as
in effect immediately prior to the merger, shall be the Certificate
of Incorporation of the Surviving Corporation.
FIFTH:
The merger is to become effective upon the filing of this
Certificate of Merger with the Delaware Secretary of
State.
SIXTH:
The Agreement and Plan of Merger is on file at 840 Newport Center
Drive, Suite 450, Newport Beach, California 92660, the place of
business of the Surviving Corporation.
SEVENTH: A copy of
the Agreement and Plan of Merger will be furnished by the Surviving
Corporation on request, without cost, to any stockholder of the
constituent corporations.
IN
WITNESS WHEREOF, the Surviving Corporation has caused this
Certificate of Merger to be signed by an authorized person as of
_______________, 2019.
ConversionPoint
Technologies, Inc.,
a
Delaware corporation
Robert Tallack, Chief Executive Officer
EXHIBIT C
INUVO CERTIFICATE OF MERGER
EXHIBIT D
FORM OF SEPARATION AGREEMENT
CONTINGENT SEPARATION AND RELEASE AGREEMENT
THIS
CONTINGENT SEPARATION AND RELEASE AGREEMENT (this
“Agreement”) is made by and among [_______________]
(the “Employee”), Inuvo, Inc., a Nevada corporation
(the “Company”), and ConversionPoint Holdings, Inc.
(“Buyer”) as of this ____ day of _______________, 2019
(the “Agreement Date”).
W I T N E S S E T H :
WHEREAS, the
Employee is employed by the Company as
[_______________]
1
pursuant to an Employment Agreement dated March 1, 2012 (the
“Employment Agreement”); and
WHEREAS, the
Company and Buyer and other wholly-owned subsidiaries of Buyer have
entered into a Merger Agreement, dated November 2, 2018 (the
“Merger Agreement”) whereby the Company has agreed to
merge with a subsidiary of Buyer (the
“Merger”).
WHEREAS, Employee,
by signing below, acknowledges Employee’s separation from
employment with Inuvo and as an employee of Inuvo and Insperity
Companies II, L.P. (“Insperity”) in any other capacity,
as well as Employee’s resignation as [a director of the
Company and as]
2
a director and officer of any
subsidiaries of the Company effective as of the dates set forth
herein. [This Agreement has no impact on Employee’s service
as a Director of Buyer as contemplated by the Merger
Agreement.]
3
WHEREAS, the
Company and the Employee are sometimes referred to herein
collectively as the “Parties,” or individually as a
“Party.”
NOW,
THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement, the Employee and the Company agree as
follows:
1.
This Agreement is
contingent upon consummation of the Merger. If for any reason the
Merger is not consummated this Agreement shall automatically
terminate and Employee’s employment with the Company shall
continue pursuant to the terms of the Employment
Agreement.
1
Note
: Applicable to
Richard K. Howe, Chairman and Chief Executive Officer; Wallace D.
Ruiz, Chief Financial Officer; and John B. Pisaris, General
Counsel.
2
Note
: Applicable to
Richard K. Howe only.
3
Note
: Applicable to
Richard K. Howe only.
2.
On the date the
Merger Closes (the “Effective Date”) the Company shall
be deemed to have delivered written notice of termination without
Cause (as defined in the Employment Agreement) to Employee (the
“Notice Date”). Employee’s employment with the
Company and Insperity will be terminated effective on the earlier
of (i) one hundred and eighty (180) days after the Notice Date; or
(ii) upon thirty (30) days written notice from the Employee, which
notice shall not be given prior to the sixty (60) day anniversary
of the Notice Date (the “Termination Date”). The
Termination Date may be extended with the mutual written agreement
of the parties. Between the Notice Date and the Termination Date,
Employee shall: (i) no longer serve or act as the Company’s
[___________________] but shall remain an employee through the
Termination Date; and (ii) not be required to report to work, but
shall be available on a limited basis to assist the Company with
the orderly transition of his duties. Additionally, Employee
resigns [as a director of the Company and]
4
as a director and officer of any
subsidiaries of the Company effective as of the Notice Date. Health
care and dental insurance coverage will continue under the
Company’s benefits plans, as then in effect, until 11:59pm on
the end of the month in which the Termination Date occurs. After
the Termination Date, COBRA options are available depending on
eligibility.
3.
Until the
Termination Date, the Company shall pay the Employee (i) the earned
but unpaid portion of the Employee’s Basic Salary (as defined
in the Employment Agreement) through the Termination Date and (ii)
any other amounts or benefits owing to the Employee under the
applicable employee benefit, incentive or equity plans and programs
of the Company, which shall be paid or treated in accordance with
the terms of such plans and programs.
All payme
nts made under this
Paragraph 3 will be subject to applicable federal and state tax
withholding and statutory deductions.
4.
On the Termination
Date, the Company shall pay the Employee a lump sum severance of
$_____________
5
(the “[Initial] Severance
Payment”). [Following the first day of the month after six
(6) months after the Termination Date, the Company shall pay the
Employee $168,057, paid over a period of six (6) months in twelve
(12) equal installments payable on the 15th and last business day
of each month (the “Trailing Severance Payments, and,
collectively with the Initial Severance Payment, the
“Severance Payments”)].
6
The payme
nts made under this
Paragraph 4 will be subject to applicable federal and state tax
withholding and statutory deductions. Employee agrees and
understands that the Severance Payment[s] made under this Agreement
[is / are] the sole responsibility of the Company and that
Insperity Companies II, L.P. (“Insperity”) has no
obligation to make the Severance Payment[s] even though such
payments may be processed in whole or in part through Insperity.
Furthermore, Employee understands and agrees that if the Company
determines that any amount paid to Employee under this Agreement
should not commence until the first day of the month after six (6)
months after the Termination Date because Employee is a
“specified employee” under Code Section 409A, then the
Company shall in good faith adjust the form and timing of such
payments as it reasonably determines to be necessary or advisable
to comply with Code Section 409A.
4
Note
: Applicable to
Richard K. Howe only.
5
Note
: Richard K.
Howe to receive $550,000; Wallace D. Ruiz to receive $417,206; John
B. Pisaris to receive $398,097.
6
Note
: Richard K.
Howe to receive $168,057 in Trailing Severance
Payments.
5.
Except as
specifically provided in this Paragraph 5, the Employee hereby
acknowledges and agrees that the payment and benefits specifically
provided for herein are in complete satisfaction of and constitute
all of the payments and benefits to which the Employee is entitled
relating to severance or otherwise in connection with the
termination of the Employee’s employment with the Company.
Notwithstanding the foregoing or anything to the contrary contained
herein, Employee does not waive any rights related to the
settlement of outstanding restricted stock units and stock options
contained in the Merger Agreement and such items shall be settled
as set forth in the Merger Agreement. The Employee hereby
acknowledges and agrees that Section 6(b) of the Employment
Agreement requires, as a condition precedent to receiving the
Severance Payment[s], the Employee to provide the Company with a
written general release that releases the Company from both known
and unknown claims and in which the Employee agrees not to
disparage the Company or its affiliates and in which the Employee
acknowledges his continuing obligations under the Non-Competition,
Confidentiality and Non-Solicitation Agreement entered into by the
parties (the “Non-Competition Agreement”), all of which
are contained hereunder.
6.
In exchange for the
valuable consideration hereunder, including but not limited to the
Severance Payment, the Employee hereby releases the Company, the
Buyer, Insperity and each of their respective employees, officers,
directors, stockholders, agents, affiliates, subsidiaries, parent
corporations, successors, legal representatives and assigns, as
well as each of the above entities’ past and present
officers, directors, employees, shareholders, members, trustees,
joint venturers, attorneys, partners, and anyone claiming through
them (collectively, the “Released Parties”), from any
and all claims, actions, causes of action, demands, rights,
damages, costs, expenses, attorneys’ fees and compensation in
any form whatsoever, whether known or unknown, which the Employee
now has or may have, or which may hereafter accrue against any of
the Released Parties on account of or in any way growing out of the
Employee’s employment with the Company and Insperity and the
Employment Agreement or the termination thereof or otherwise
arising up to and including the Termination Date, including, but
not limited to, claims for wrongful discharge, breach of implied or
express contracts (including the Employment Agreement), breach of
an implied covenant of good faith and fair dealing, tortious
interference with contract or prospective economic advantage,
claims for wages, vacation and bonus compensation, violation of
public policy, intentional or negligent infliction of emotional
distress, negligent hiring/supervision, defamation, fraud, or other
wrongful conduct, including, specifically, any claims arising out
of any legal or contractual restriction on the Company’s or
Insperity’s right to terminate its employees, claims for
wages, bonuses, incentives, employment benefits, and claims under
Title VII of the Civil Rights Act of 1964, as amended, the Civil
Rights Act of 1991 and the laws amended thereby, the Americans with
Disabilities Act, the Age Discrimination in Employment Act of 1967,
as amended, the Older Workers Benefit Protection Act, the Family
and Medical Leave Act, the Equal Pay Act, the Fair Labor Standards
Act, the Rehabilitation Act of 1973, the Employee Retirement Income
Security Act of 1974, [the Arkansas Civil Rights Act of 1993, the
Arkansas Uniform Contribution Among Tortfeasors Act / the Florida
Civil Rights Act, Florida Whistleblower Protection Act, Florida
Workers’ Compensation Law Retaliation provision, Florida Wage
Discrimination Law, Florida Equal Pay Law, Florida AIDS Act,
Florida Discrimination on the Basis of Sickle Cell Trait
Law,]
7
or any other provision of federal, state
or local statutory or common law or regulation. Notwithstanding the
foregoing, nothing contained herein shall be deemed a waiver of
Employee’s right to indemnification from the Company for any
third party claims, including but not limited to indemnification
rights under the Company’s Articles of Incorporation, ByLaws,
Directors and Officers insurance, Nevada law or any other
agreements between the Company and the Employee providing for
indemnification. This general release does not waive any of the
Employee’s claims for workers’ compensation,
unemployment compensation, or any other applicable law for which
claims cannot be waived as a matter of law.
7
Note
: Arkansas labor
law applicable to Richard K. Howe and Wallace D. Ruiz; Florida
labor law applicable to John B. Pisaris.
7. To
the extent not prohibited by applicable law, the Employee hereby
warrants that he has not and will not institute any lawsuit, claim,
action, charge, complaint, petition, appeal, accusatory pleading,
or proceeding of any kind against the Company and / or Insperity
and/or the Released Parties, and Employee waives, or at a minimum
assigns to the Company and / or Insperity, any and all rights to
any and all forms of recovery or compensation from any legal action
brought by Employee or on Employee’s behalf in connection
with Employee’s employment with the Company or Insperity or
the termination of Employee’s employment with the Company or
Insperity. To the extent not prohibited by applicable law, in the
event that a lawsuit or any of the foregoing actions are filed by
Employee in breach of this covenant, it is expressly understood and
agreed that this covenant shall constitute a complete defense to
any such lawsuit or action. The Employee further acknowledges and
agrees that any material breach by Employee of any of the terms
contained in this Agreement relieves the Company and Insperity of
any and all obligations it may have pursuant to this
Agreement. The Employee further agrees that should he bring
any type of administrative, equitable, or legal action arising out
of claims waived under this Agreement, the Employee will bear all
legal fees and costs associated therewith, including those of the
Released Parties. Furthermore, nothing in this Agreement prevents
Employee from filing any claim that the law precludes him from
waiving by agreement, including any administrative charge or
complaint filed with the Equal Employment Opportunity Commission,
any state equivalent, or any other governmental agency. Employee,
however, expressly waives and releases any right Employee may have
to recover any damages (including without limitation any
attorneys’ fees) resulting from such an administrative charge
or any complaint that may be instituted on Employee’s behalf
against the Company by the Equal Employment Opportunity Commission,
any state equivalent, or any other governmental agency, or in any
class or collective action that may be filed on Employee’s
behalf.
8. To
the extent not prohibited by applicable law, the Company hereby
warrants that it has not and will not institute any lawsuit, claim,
action, charge, complaint, petition, appeal, accusatory pleading,
or proceeding of any kind against Employee, and the Company waives,
or at a minimum assigns to Employee, any and all rights to any and
all forms of recovery or compensation from any legal action brought
by the Company or on the Company's behalf in connection with
Employee’s employment with the Company or Insperity or the
termination of Employee’s employment with the Company or
Insperity. To the extent not prohibited by applicable law, in the
event that a lawsuit or any of the foregoing actions are filed by
Company in breach of this covenant, it is expressly understood and
agreed that this covenant shall constitute a complete defense to
any such lawsuit or action. The Company further acknowledges and
agrees that any material breach by the Company of any of the terms
contained in this Agreement relieves Employee of any and all
obligations he may have pursuant to this Agreement. The
Company further agrees that should it bring any type of
administrative, equitable, or legal action arising out of claims
waived under this Agreement, the Company will bear all legal fees
and costs associated therewith. The Company does not release, waive
or discharge Employee from any legal, equitable or administrative
claim or action based on any act of fraud, dishonesty,
embezzlement, intentional wrongdoing or criminal conduct committed
by Employee during his employment with the Company.
9. On
or before the Termination Date, the Employee will return all
Company Property within his possession, custody, or control to the
Company. As used herein, the term “Company Property”
means any and all documents, electronic information, or other
tangible things that are confidential or proprietary to the Company
or any affiliate thereof or otherwise relate to the business of the
Company. The Employee hereby represents and warrants that he has
not retained any copies, electronic or otherwise, of any such
Company Property. The term “Company Property” does not
include the Employee’s copy of this Agreement. The Employee
agrees to cooperate with the Company with regard to resigning all
corporate positions and directorships he may have with the Company
and/or any affiliated entities. Employee will promptly provide such
information about the corporate records of the Company as might be
requested by the Company. As part of providing such cooperation,
Employee agrees to execute such documents as might be requested by
the Company. Notwithstanding the foregoing, Employee may retain his
Company owned laptop computer and cell phone, after Company
Property is deleted by the Company’s technology personnel on
both devices. The Company shall forward any personal mail received
at the Company’s office to Employee’s
residence.
10. The
Employee and the Company agree that they will not directly or
indirectly, individually or in concert with others for a period of
five years from the date of this Agreement, (i) disparage,
interfere with or attempt to interfere with, the Employee’s
or the Company’s, as applicable, reputation, goodwill,
services, business and/or the Company’s stockholders,
directors, officers, employees, agents, representatives and any
affiliates or (ii) engage in any conduct, take any actions, make
any statements (oral or written), or engage in any internet or
other electronic communications (such as blog posts, message
boarding, text messages, e-mail, or instant messages) to the
public, future employers, Company shareholders, customers, or
vendors, the investment community, the media, current, former or
future Company employees, or any other third party whatsoever that
is calculated to have, or reasonably likely or possibly having, the
effect of undermining, disparaging or otherwise reflecting
negatively or could reasonably be considered to undermine,
disparage or reflect negatively, on the Company, its reputation,
goodwill, services, business and/or stockholders, directors,
officers, employees, agents, representatives and its
affiliates.
11. The
Employee agrees to provide thorough and accurate information and
testimony voluntarily to or on behalf of the Company or any
affiliate thereof regarding any investigation, litigation or claims
initiated by or against the Company or any affiliate thereof or by
any entity or person(s) (individually, a “Proceeding,”
and collectively, the “Proceedings”), but he agrees not
to disclose or to discuss with anyone who is not directing or
assisting in any Proceeding, other than his attorney, the fact of
or the subject matter of any Proceeding, except as required by law.
The Employee will take all reasonable steps to cooperate fully with
the Company or any affiliate thereof in supplying thorough and
accurate information in each Proceeding and during the defense or
prosecution thereof. The Employee will accommodate his schedule to
cooperate with the Company or any affiliate thereof and provide
such information as soon as is reasonable under the circumstances.
In requesting information the Company or any affiliate thereof will
attempt to work with the Employee to arrange times that reasonably
accommodate his schedule and, to the extent permitted by law, the
Company will reimburse the Employee for reasonable travel,
commuting, parking or other similar out-of-pocket expenses incurred
by him in connection with providing such information or
testimony.
12. The
Employee acknowledges and agrees that the Company may disclose the
terms of this Agreement in accordance with applicable legal
requirements.
13. This
Agreement shall be binding on the Parties and upon their heirs,
administrators, representatives, executors, successors and assigns
and shall inure to their benefit and to that of their heirs,
administrators, representatives, executors, successors and
assigns.
14. The
Employee and the Company agree and expressly acknowledge that this
Agreement includes a waiver and release of all claims which the
Employee has or may have under the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § 621,
et seq
. ("ADEA"), including the Older
Workers' Benefits Protection Act ("OWBPA"). The following terms and
conditions apply to and are part of the waiver and release of ADEA
claims under this Agreement:
(a)
The waiver and
release of claims under the ADEA contained in this Agreement does
not cover rights or claims that may arise after the date on which
the Employee signs this Agreement;
(b)
The Employee is
advised by this writing to consult an attorney before signing this
Agreement;
(c)
The Employee is
granted twenty-one (21) days after he is presented with this
Agreement to decide whether or not to sign this
Agreement;
(d)
The Employee will
have the right to revoke the waiver and release of claims under the
ADEA within seven (7) days of his signing this Agreement, and this
Agreement shall not become effective or enforceable until that
revocation period has expired without the Employee having revoked
this Agreement. In order to revoke this Agreement, the Employee
must submit written notice of his revocation to:
Inuvo,
Inc.
500
President Clinton Ave.
Little
Rock, AR 72201
ATTN:
Human Resources
such
that the notice is received by said person before the expiration of
the seven (7) day revocation period; and
(e)
The Employee hereby
acknowledges and agrees that this Agreement is written clearly in a
manner which he understands he is knowingly and voluntarily waiving
and releasing his rights and claims only in exchange for
consideration (something of value) in addition to anything of value
to which he is already entitled.
15. Employee
acknowledges and agree that the Company has not made any
representations to the Employee regarding the tax consequences of
any amounts received by the Employee pursuant to this Agreement and
further the Employee agrees that he shall be solely responsible for
payment of all his personal tax liabilities due on any and all
payments to him set forth in this Agreement, including but not
limited to federal, state and local taxes, and interest and
penalties, which are or may become due.
16. Nothing
contained in this Agreement, or the fact of its submission to the
Employee, shall be admissible evidence in any judicial,
administrative, or other legal proceeding, or be construed as an
admission of any liability or wrongdoing on the part of the Company
or the other Released Parties of any violation of federal or state
statutory or common law or regulation.
17. If
any portion of this Agreement is held to be invalid or legally
unenforceable, such portion will be enforced to the greatest extent
permitted by law and the remaining portions of this agreement will
not be affected and will be given full force and
effect.
18. This
Agreement sets forth the entire agreement between the Parties and
supersedes any and all prior oral or written agreements or
understandings between the Employee and the Company concerning the
subject matter of this Agreement. This Agreement may not be
altered, amended or modified, except by a further written document
signed by the Employee and an authorized officer of the Company.
Nothing herein, however, shall alter, limit, or modify the
Non-Competition Agreement, or Employee's non-disparagement
obligations set forth in Paragraph 6(b) of the Employment Agreement
and Paragraph 10 of this Agreement, and the Employee expressly
acknowledges that the Non-Competition Agreement and Employee's
non-disparagement obligation in Paragraph 6(b) of the Employment
Agreement remain in full force and effect in accordance with their
terms.
19. This
Agreement shall be construed and enforced in accordance with the
laws of the State of [Arkansas / Florida]
8
without reference to its or any other
state’s conflicts of law rules.
20. This
Agreement may be executed in counterparts, each of which shall be
deemed to be an original but all of which together will constitute
one and the same instrument. Either Party's facsimile, PDF'd, or
emailed signature shall be deemed to be an original signature for
all purposes.
21. The
Employee acknowledges that he has had adequate time to review this
Agreement, that he has been advised by the Company to consult with
legal counsel of his choosing regarding this Agreement, and that he
enters into this Agreement freely, knowingly, and
voluntarily.
8
Note
: Arkansas law
applicable to Richard K. Howe and Wallace D. Ruiz; Florida law
applicable to John B. Pisaris.
22. This
Agreement is intended to comply with Code Section 409A or an
exemption thereunder and shall be construed and administered in
accordance with Code Section 409A. Notwithstanding any other
provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with
Code Section 409A or an applicable exemption. Any payments under
this Agreement that may be excluded from Code Section 409A either
as separation pay due to an involuntary separation from service or
as a short-term deferral shall be excluded from Code Section 409A
to the maximum extent possible. For purposes of Code Section 409A,
each payment provided under this Agreement shall be treated as a
separate payment.
23.
Buyer hereby unconditionally and irrevocably guarantees to Employee
each obligation of the Company under this Agreement. The liability
of Buyer shall not be released or diminished by any arrangements or
alterations of terms of this Agreement or any forbearance,
compromise, neglect or delay in seeking performance of the
obligations hereby imposed or any granting of time for such
performance or the dissolution or insolvency or liquidation or any
change in the status of the Company. Buyer hereby waives any rights
which it may have to require Employee to proceed first against or
claim payment from the Company. This guarantee is to be a
continuing security to Employee. Buyer’s obligations under
this Section 23 are primary obligations and not those of a mere
surety. Notwithstanding the foregoing or anything to the contrary
herein, this provision 23 shall be of no force and effect unless
the Merger is consummated.
[REST
OF PAGE LEFT INTENTIONALLY BLANK]
IN
WITNESS WHEREOF, the Parties hereto have executed this
Agreement
as
of the date specified below.
INUVO,
INC.
EMPLOYEE
CONVERSIONPOINT
HOLDINGS, INC.
SCHEDULE 2.6(a)
DIRECTORS OF PARENT AND PARENT’S SUBSIDIARIES
CONVERSIONPOINT HOLDINGS, INC.
|
Richard
K. Howe
|
Non-Executive
Chairman
|
Raghunath
Kilambi
|
Director
|
Robert
Tallack
|
Director
|
An
individual to be nominated by Inuvo within 30 days of the
Closing
|
Director
|
3
additional independent directors to be nominated by the board of
ConversionPoint Holdings, Inc.
|
Directors
|
CONVERSIONPOINT TECHNOLOGIES, INC.
|
Raghunath
Kilambi
|
Director
|
Haig
Newton
|
Director
|
Robert
Tallack
|
Director
|
INUVO, INC.
|
Don
Walker “Trey” Barrett III
|
Director
|
Raghunath
Kilambi
|
Director
|
Haig
Newton
|
Director
|
Robert
Tallack
|
Director
|
SCHEDULE 2.6(b)
OFFICERS OF PARENT AND PARENT’S SUBSIDIARIES
CONVERSIONPOINT HOLDINGS, INC.
|
Robert
Tallack
|
Chief
Executive Officer
|
Raghunath
Kilambi
|
Vice
Chairman and Chief Financial Officer
|
Jeffrey
Marks
|
Secretary
and General Counsel
|
CONVERSIONPOINT TECHNOLOGIES, INC.
|
Robert
Tallack
|
Chief
Executive Officer
|
Stephen
Blazick
|
Chief
Revenue Officer
|
Tom
Furukawa
|
Chief
Product Officer
|
Christopher
Jahnke
|
Chief
Marketing Officer
|
Jack
Thomsen
|
Chief
Financial Officer
|
Haig
Newton
|
Chief
Technology Officer
|
INUVO, INC.
|
Don
Walker “Trey” Barrett III
|
Chief
Operating Officer
|
Robert
Tallack
|
Chief
Executive Officer
|
Tom
Furukawa
|
Chief
Product Officer
|
Raghunath
Kilambi
|
Chief
Financial Officer
|
SCHEDULE 2.7(a)
PARENT CERTIFICATE OF INCORPORATION
CERTIFICATE OF INCORPORATION
OF CONVERSIONPOINT HOLDINGS, INC.
ARTICLE I
The
name of the corporation is ConversionPoint Holdings, Inc. (the
“
Corporation
”).
ARTICLE II
The
address of the Corporation’s registered office in the State
of Delaware is 1013 Centre Road, Suite 403-B, Wilmington, Delaware
19805, County of New Castle. The name of the registered agent of
the Corporation at such address is vCorp Services,
LLC.
ARTICLE III
The
nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation
Law of the State of Delaware (“
DGCL
”).
ARTICLE IV
The
name and mailing address of the incorporator is Dean Longfield, c/o
Troutman Sanders LLP, 5 Park Plaza, Suite 1400, Irvine, California
92614.
ARTICLE V
Section
1.
This Corporation is authorized to issue two classes of stock, to be
designated, respectively, “
Common Stock
” and
“
Preferred
Stock
.” The total number of shares of stock that the
Corporation shall have authority to issue is 100,000,000 shares, of
which 90,000,000 shares are Common Stock, $0.0001 par value per
share, and 10,000,000 shares are Preferred Stock, $0.0001 par value
per share.
Section
2.
Each share of Common Stock shall entitle the holder thereof to one
vote. Each share of Common Stock shall be equal in all respects to
every other share of Common Stock. Each holder of record of issued
and outstanding Common Stock shall be entitled to one vote on all
matters for each share so held. Subject to the rights and
preferences, if any, of the holders of Preferred Stock, each issued
and outstanding share of Common Stock shall entitle the record
holder thereof to receive dividends and distributions out of funds
legally available therefor, when, as and if declared by the Board
of Directors, in such amounts and at such times, if any, as the
Board of Directors shall determine, ratably in proportion to the
number of shares of Common Stock held by each such record holder.
Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, after there shall have been paid to
or set aside for the holders of any class of capital stock having
preference over the Common Stock in such circumstances the full
preferential amounts to which they are respectively entitled, the
holders of the Common Stock, and of any class or series of capital
stock entitled to participate in whole or in part therewith as to
the distribution of assets, shall be entitled, after payment or
provision for the payment of all debts and liabilities of the
Corporation, to receive the remaining assets of the Corporation
available for distribution, in cash or in kind, ratably in
proportion to the number of shares of Common Stock held by each
such holder.
Section
3.
The Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such
issue duly adopted by the Board of Directors (authority to do so
being hereby expressly vested in the Board of Directors). The Board
of Directors is further authorized, subject to limitations
prescribed by law, to fix by resolution or resolutions the
designations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of any wholly
unissued series of Preferred Stock, including, without limitation,
authority to fix by resolution or resolutions the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms
of redemption (including sinking fund provisions), redemption price
or prices, and liquidation preferences of any such series, and the
number of shares constituting any such series and the designation
thereof, or any of the foregoing. The Board of Directors is further
authorized to increase (but not above the total number of
authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of
shares of any series, the number of which was fixed by it, subject
to the powers, preferences and rights, and the qualifications,
limitations and restrictions thereof stated in this Certificate of
Incorporation or the resolution of the Board of Directors
originally fixing the number of shares of such series.
Section
4.
The number of authorized shares of Preferred Stock or Common Stock
may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of
a majority of the voting power of the outstanding shares of the
Corporation entitled to vote, irrespective of the provisions of
Section 242(b)(2) of the DGCL (or any successor provision thereto),
voting together as a single class, without a separate vote of the
holders of shares of the class or classes the number of authorized
shares of which are being increased or decreased, unless a vote by
any holders of one or more series of Preferred Stock is required by
the express terms of any series of Preferred Stock as provided for
or fixed pursuant to the provisions of
Section 3
of this
Article V
(or any certificate
of designation with respect thereto). Except as otherwise required
by law or provided in this
Section 4
, holders of Common
Stock shall not be entitled to vote on any amendment to this
Certificate of Incorporation (including any certificate of
designation filed with respect to any series of Preferred Stock)
that relates solely to the terms of one or more outstanding series
of Preferred Stock if the holders of such affected series are
entitled, either separately or together as a class with the holders
of one or more other such series, to vote thereon by law or
pursuant to this Certificate of Incorporation (including any
certificate of designation filed with respect to any series of
Preferred Stock).
ARTICLE VI
Subject
to the rights of holders of Preferred Stock, the number of
directors that constitutes the entire Board of Directors of the
Corporation shall be fixed solely by resolution of the majority of
the Whole Board. For purposes of this Certificate of Incorporation,
the term “
Whole
Board
” shall mean the total number of authorized
directors whether or not there exist any vacancies in the
previously authorized directorships. At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold
office until the next annual meeting of stockholders and until
their successors have been duly elected and qualified or until
their earlier resignation or removal; except that if any such
meeting shall not be so held, such election shall take place at a
stockholders’ meeting called and held in accordance with the
DGCL or by written consent in lieu of an annual meeting pursuant to
Section 211(b) of the DGCL and
Article IX
hereof.
ARTICLE VII
Except
as otherwise provided for or fixed by or pursuant to the provisions
of
Article V
hereof
in relation to the rights of the holders of Preferred Stock to
elect directors under specified circumstances or as provided by
resolution of the Board of Directors, newly created directorships
resulting from any increase in the number of directors, created in
accordance with the Bylaws of the Corporation, and any vacancies on
the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled only by
the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the Board of
Directors, or by a sole remaining director, and not by the
stockholders. A person so elected by the Board of Directors to fill
a vacancy or newly created directorship shall hold office until the
next election of the class for which such director shall have been
chosen until his or her successor shall have been duly elected and
qualified, or until such director’s earlier death,
resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
ARTICLE VIII
Section
1.
The Corporation is to have perpetual existence.
Section
2.
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Certificate of Incorporation or the Bylaws of the Corporation,
the Board of Directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done
by the Corporation.
Section
3.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt,
alter, amend or repeal the Bylaws of the Corporation. The
affirmative vote of at least a majority of the Whole Board shall be
required in order for the Board of Directors to adopt, amend, alter
or repeal the Corporation’s Bylaws. The Corporation’s
Bylaws may also be adopted, amended, altered or repealed by the
stockholders of the Corporation. Notwithstanding the above or any
other provision of this Certificate of Incorporation, the Bylaws of
the Corporation may not be amended, altered or repealed except in
accordance with
Article
X
of the Bylaws. No Bylaw hereafter legally adopted,
amended, altered or repealed shall invalidate any prior act of the
directors or officers of the Corporation that would have been valid
if such Bylaw had not been adopted, amended, altered or
repealed.
Section
4.
The election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
Section
5.
No stockholder will be permitted to cumulate votes at any election
of directors.
ARTICLE IX
Section
1.
Any action required or permitted to be taken at an annual or
special meeting of stockholders may be taken without a meeting if a
consent or consents in writing, setting forth the action so taken,
shall be signed by holders of record on the record date
(established in the manner provided in
Section 2
of this
Article IX
) of outstanding
shares of the Corporation having not less than the minimum number
of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were
present and voted, but only if such action is taken in accordance
with the provisions of this
Article IX
, the Bylaws of the
Corporation and applicable law;
provided
,
however
, that in the case of
the election or removal of directors by written consent, such
consent shall be effective only if signed by the holders of all
outstanding shares entitled to vote for the election of
directors.
Section
2.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which
record date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board
of Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent
shall, by written notice to the attention of the Secretary of the
Corporation, request the Board of Directors to fix a record date.
The Board of Directors shall promptly, but in all events within ten
days after the date on which such a request is received, adopt a
resolution fixing the record date (unless a record date has
previously been fixed by the Board of Directors pursuant to the
first sentence of this
Section 2
of
Article IX
). If no record date
has been fixed by the Board of Directors within ten days of the
date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to
its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded. If no record date has been fixed by the
Board of Directors and prior action by the Board of Directors is
required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on
which the Board of Directors adopts the resolution taking such
prior action.
ARTICLE X
Section
1.
Special meetings of stockholders of the Corporation may be called
only by the Board of Directors acting pursuant to a resolution
adopted by a majority of the Whole Board, and any power of
stockholders to call a special meeting of stockholders is
specifically denied. Only such business shall be considered at a
special meeting of stockholders as shall have been stated in the
notice for such meeting.
Section
2.
Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in
the manner and to the extent provided in the Bylaws of the
Corporation.
ARTICLE XI
Section
1.
To the fullest extent permitted by the DGCL as the same exists or
as may hereafter be amended from time to time, a director of the
Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty
as a director. If the DGCL is amended to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
Section
2.
The Corporation shall indemnify, to the fullest extent permitted by
applicable law, any director or officer of the Corporation who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
“
Proceeding
”) by
reason of the fact that he or she is or was a director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee
benefit plans, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any such
Proceeding. The Corporation shall be required to indemnify a person
in connection with a Proceeding (or part thereof) initiated by such
person only if the Proceeding (or part thereof) was authorized by
the Board of Directors.
Section
3.
The Corporation shall have the power to indemnify, to the extent
permitted by applicable law, any employee or agent of the
Corporation who was or is a party or is threatened to be made a
party to any Proceeding by reason of the fact that he or she is or
was a director, officer, employee or agent of the Corporation or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with any such Proceeding.
Section
4.
Neither any amendment nor repeal of any Section of this
Article XI
, nor the
adoption of any provision of this Certificate of Incorporation or
the Bylaws of the Corporation inconsistent with this
Article XI
, shall eliminate or
reduce the effect of this
Article XI
in respect of any
matter occurring, or any cause of action, suit, claim or proceeding
accruing or arising or that, but for this
Article XI
, would accrue or
arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE XII
Meetings of
stockholders may be held within or outside of the State of
Delaware, as the Bylaws may provide. The books of the Corporation
may be kept (subject to any provision contained in the statutes)
outside of the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
ARTICLE XIII
Unless
the Corporation consents in writing to the selection of an
alternative forum and to the fullest extent permitted by law, the
Court of Chancery of the State of Delaware (or, if such court lacks
jurisdiction, any other state or federal court located within the
State of Delaware) shall be the sole and exclusive forum for (A)
any derivative action or proceeding brought on behalf of the
Corporation, (B) any action or proceeding asserting a claim of
breach of a fiduciary duty owed by any director, officer or other
employee of the Corporation to the Corporation or the
Corporation’s stockholders, (C) any action or proceeding
asserting a claim arising pursuant to any provision of the DGCL or
the Corporation’s Certificate of Incorporation or Bylaws, or
(D) any action or proceeding asserting a claim governed by the
internal affairs doctrine; in all cases subject to the
court’s having personal jurisdiction over the indispensable
parties named as defendants.
ARTICLE XIV
The
Corporation shall not be governed by the provisions of Section 203
of the DGCL.
ARTICLE XV
The
Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this
reservation.
I, the
undersigned, being the incorporator, for the purpose of forming a
corporation pursuant to the DGCL, do make this Certificate of
Incorporation, hereby acknowledging, declaring, and certifying that
the foregoing Certificate of Incorporation is my act and deed and
that the facts herein stated are true, and have accordingly
hereunto set my hand this 1st day of November, 2018.
_________________________
Dean
Longfield, Incorporator
SCHEDULE 2.7(b)
PARENT BYLAWS
BYLAWS OF CONVERSIONPOINT HOLDINGS, INC.
ARTICLE I
— CORPORATE OFFICES
1.1
REGISTERED
OFFICE
The
registered office of ConversionPoint Holdings, Inc. (the
“
Corporation
”)
shall be fixed in the Corporation’s Certificate of
Incorporation (the “
Certificate of Incorporation
”).
References in these Bylaws (the “
Bylaws
”) to the Certificate of
Incorporation shall mean the Certificate of Incorporation of the
Corporation, as amended from time to time, including the terms of
any certificates of designation of any series of Preferred
Stock.
1.2
OTHER
OFFICES
The
Corporation may at any time establish other offices at any place or
places.
ARTICLE II
— MEETINGS OF STOCKHOLDERS
2.1
PLACE
OF MEETINGS
Meetings
of stockholders shall be held at any place, within or outside the
State of Delaware, designated by the Corporation’s Board of
Directors (the “
Board of
Directors
”). The Board of Directors may, in its sole
discretion, determine that a meeting of stockholders shall not be
held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211(a)(2) of the
General Corporation Law of the State of Delaware (the
“
DGCL
”). In the
absence of any such designation or determination,
stockholders’ meetings shall be held at the
Corporation’s principal executive office.
2.2
ANNUAL
MEETING
The
annual meeting of stockholders shall be held on such date, at such
time, and at such place (if any) within or without the State of
Delaware as shall be designated from time to time by the Board of
Directors and stated in the Corporation’s notice of the
meeting. At the annual meeting, directors shall be elected and any
other proper business, brought in accordance with
Section 2.4
of these Bylaws,
may be transacted.
2.3
SPECIAL
MEETING
(i)
A
special meeting of the stockholders, other than those required by
statute, may be called at any time only by the affirmative vote of
a majority of the Whole Board. A special meeting of the
stockholders may not be called by any other person or persons. The
Board of Directors, by the affirmative vote of a majority of the
Whole Board, may cancel, postpone or reschedule any previously
scheduled special meeting at any time, before or after the notice
for such meeting has been sent to the stockholders. For purposes of
these Bylaws, the term “
Whole
Board
” shall mean the total number of authorized
directors whether or not there exist any vacancies in previously
authorized directorships.
The
notice of a special meeting shall include the purpose for which
the
meeting
is called. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the
meeting by or at the direction of the Board of Directors. Nothing
contained in this
Section
2.3(ii)
shall be construed as limiting, fixing or affecting
the time when a meeting of stockholders called by action of the
Board of Directors may be held.
2.4
ADVANCE
NOTICE PROCEDURES
(i)
Advance
Notice of Stockholder Business
. At an annual meeting of the
stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought
before an annual meeting, business must be brought: (A) pursuant to
the Corporation’s proxy materials with respect to such
meeting, (B) by or at the direction of the Board of Directors, or
(C) by a stockholder of the Corporation who (1) is a stockholder of
record at the time of the giving of the notice required by this
Section 2.4(i)
and
on the record date for the determination of stockholders entitled
to vote at the annual meeting and (2) has timely complied in proper
written form with the notice procedures set forth in this
Section 2.4(i)
. In
addition, for business to be properly brought before an annual
meeting by a stockholder, such business must be a proper matter for
stockholder action pursuant to these Bylaws and applicable law.
Except for proposals properly made in accordance with Rule 14a-8
under the Securities Exchange Act of 1934, and the rules and
regulations thereunder (as so amended and inclusive of such rules
and regulations, the “
1934
Act
”), clause (C) above shall be the exclusive means
for a stockholder to bring business before an annual meeting of
stockholders.
(a)
To
comply with clause (C) of
Section 2.4(i)
, a
stockholder’s notice must set forth all information required
under this
Section
2.4(i)
and must be timely received by the chief executive
officer of the Corporation. To be timely, a stockholder’s
notice must be received by the secretary at the principal executive
offices of the Corporation not later than the 45th day nor earlier
than the 75th day before the one-year anniversary of the date on
which the Corporation first mailed its proxy materials or a notice
of availability of proxy materials (whichever is earlier) for the
preceding year’s annual meeting;
provided
,
however
, that in the event that no
annual meeting was held in the previous year or if the date of the
annual meeting is advanced by more than 30 days prior to or delayed
by more than 60 days after the one-year anniversary of the date of
the previous year’s annual meeting, then, for notice by the
stockholder to be timely, it must be so received by the secretary
not earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business on the
later of (i) the 90th day prior to such annual meeting, or (ii) the
tenth day following the day on which Public Announcement (as
defined below) of the date of such annual meeting is first made. In
no event shall any adjournment or postponement of an annual meeting
or the announcement thereof commence a new time period for the
giving of a stockholder’s notice as described in this
Section 2.4(i)(a)
.
“
Public
Announcement
” shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(b)
To be
in proper written form, a stockholder’s notice to the
secretary must set forth as to each matter of business the
stockholder intends to bring before the annual meeting: (1) a brief
description of the business intended to be brought before the
annual meeting, the text of the proposed business (including the
text of any resolutions proposed for consideration) and the reasons
for conducting such business at the annual meeting, (2) the name
and address, as they appear on the Corporation’s books, of
the stockholder proposing such business and any Stockholder
Associated Person (as defined below), (3) the class and number of
shares of the Corporation that are held of record or are
beneficially owned by the stockholder or any Stockholder Associated
Person and any derivative positions held or beneficially held by
the stockholder or any Stockholder Associated Person as of the date
of delivery of such notice, (4) whether and the extent to which any
hedging or other transaction or series of transactions has been
entered into by or on behalf of such stockholder or any Stockholder
Associated Person with respect to any securities of the
Corporation, and a description of any other agreement, arrangement
or understanding (including any short position or any borrowing or
lending of shares), the effect or intent of which is to mitigate
loss to, or to manage the risk or benefit from share price changes
for, or to increase or decrease the voting power of, such
stockholder or any Stockholder Associated Person with respect to
any securities of the Corporation, (5) any material interest of the
stockholder or a Stockholder Associated Person in such business,
and (6) a statement whether either such stockholder or any
Stockholder Associated Person will deliver a proxy statement and
form of proxy to holders of at least the percentage of the voting
power of the Corporation’s voting shares required under
applicable law to carry the proposal (such information provided and
statements made as required by clauses (1) through (6) above, a
“
Business Solicitation
Statement
”). In addition, to be in proper written
form, a stockholder’s notice to the secretary must be
supplemented not later than ten days following the record date for
notice of the meeting to disclose the information contained in
clauses (3) and (4) above as of the record date for notice of the
meeting. For purposes of this
Section 2.4
, a
“
Stockholder Associated
Person
” of any stockholder shall mean (i) any person
controlling, directly or indirectly, or acting in concert with,
such stockholder, (ii) any beneficial owner of shares of stock of
the Corporation owned of record or beneficially by such stockholder
and on whose behalf the proposal or nomination, as the case may be,
is being made, or (iii) any person controlling, controlled by or
under common control with such person referred to in the preceding
clauses (i) and (ii).
(c)
Without
exception, no business shall be conducted at any annual meeting
except in accordance with the provisions set forth in this
Section 2.4(i)
and,
if applicable,
Section
2.4(ii)
. In addition, business proposed to be brought by a
stockholder may not be brought before the annual meeting if such
stockholder or a Stockholder Associated Person, as applicable,
takes action contrary to the representations made in the Business
Solicitation Statement applicable to such business or if the
Business Solicitation Statement applicable to such business
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein not
misleading. The chairperson of the annual meeting shall, if the
facts warrant, determine and declare at the annual meeting that
business was not properly brought before the annual meeting and in
accordance with the provisions of this
Section 2.4(i)
, and, if the
chairperson should so determine, he or she shall so declare at the
annual meeting that any such business not properly brought before
the annual meeting shall not be conducted.
(ii)
Advance
Notice of Director Nominations at Annual Meetings
.
Notwithstanding anything in these Bylaws to the contrary, only
persons who are nominated in accordance with the procedures set
forth in this
Section
2.4(ii)
shall be eligible for election or re-election as
directors at an annual meeting of stockholders. Nominations of
persons for election or re-election to the Board of Directors of
the Corporation shall be made at an annual meeting of stockholders
only (A) by or at the direction of the Board of Directors or (B) by
a stockholder of the Corporation who (1) was a stockholder of
record at the time of the giving of the notice required by this
Section 2.4(ii)
and
on the record date for the determination of stockholders entitled
to vote at the annual meeting and (2) has complied with the notice
procedures set forth in this
Section 2.4(ii)
. In addition to
any other applicable requirements, for a nomination to be made by a
stockholder, the stockholder must have given timely notice thereof
in proper written form to the secretary of the
Corporation.
(a)
To
comply with clause (B) of
Section 2.4(ii)
, a nomination
to be made by a stockholder must set forth all information required
under this
Section
2.4(ii)
and must be received by the secretary of the
Corporation at the principal executive offices of the Corporation
at the time set forth in, and in accordance with, the final three
sentences of
Section
2.4(i)(a)
;
provided
,
however
, that in the event
the number of directors to be elected to the Board of Directors is
increased and there is no Public Announcement naming all of the
nominees for director or specifying the size of the increased board
made by the Corporation at least ten (10) days before the last day
a stockholder may deliver notice of nomination pursuant to the
foregoing provisions, a stockholder’s notice required by this
Section 2.4(ii
)
shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be
received by the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day
following the date on which such Public Announcement is first made
by the Corporation.
(b)
To be
in proper written form, such stockholder’s notice to the
secretary must set forth:
(1)
as to
each person (a “
nominee
”) whom the stockholder
proposes to nominate for election or re-election as a director: (A)
the name, age, business address and residence address of the
nominee, (B) the principal occupation or employment of the nominee,
(C) the class and number of shares of the Corporation that are held
of record or are beneficially owned by the nominee and any
derivative positions held or beneficially held by the nominee, (D)
whether and the extent to which any hedging or other transaction or
series of transactions has been entered into by or on behalf of the
nominee with respect to any securities of the Corporation, and a
description of any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of
shares), the effect or intent of which is to mitigate loss to, or
to manage the risk or benefit of share price changes for, or to
increase or decrease the voting power of the nominee, (E) a
description of all arrangements or understandings between or among
the stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nominations
are to be made by the stockholder or concerning the nominee’s
potential service on the Board of Directors, (F) a written
statement executed by the nominee acknowledging that as a director
of the Corporation, the nominee will owe fiduciary duties under
Delaware law with respect to the Corporation and its stockholders,
and (G) any other information relating to the nominee that would be
required to be disclosed about such nominee if proxies were being
solicited for the election or re-election of the nominee as a
director, or that is otherwise required, in each case pursuant to
Regulation 14A under the 1934 Act (including without limitation the
nominee’s written consent to being named in the proxy
statement, if any, as a nominee and to serving as a director if
elected or re-elected, as the case may be); and
(2)
as to
such stockholder giving notice, (A) the information required to be
provided pursuant to clauses (2) through (5) of
Section 2.4(i)(b)
, and the
supplement referenced in the second sentence of
Section 2.4(i)(b)
(except that
the references to “business” in such clauses shall
instead refer to nominations of directors for purposes of this
paragraph), and (B) a statement whether either such stockholder or
Stockholder Associated Person will deliver a proxy statement and
form of proxy to holders of at least the percentage of voting power
of the Corporation’s voting shares reasonably believed by
such stockholder or Stockholder Associated Person to be necessary
to elect or re-elect such nominee(s) (such information provided and
statements made as required by clauses (A) and (B) above, a
“
Nominee Solicitation
Statement
”).
(c)
At the
request of the Board of Directors, any person nominated by a
stockholder for election or re-election as a director must furnish
to the secretary of the Corporation (1) that information required
to be set forth in the stockholder’s notice of nomination of
such person as a director as of a date subsequent to the date on
which the notice of such person’s nomination was given, (2)
such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee
to serve as an independent director or audit committee financial
expert of the Corporation under applicable law, securities exchange
rule or regulation, or any publicly disclosed corporate governance
guideline or committee charter of the Corporation and (3) such
other information that could be material to a reasonable
stockholder’s understanding of the independence, or lack
thereof, of such nominee; in the absence of the furnishing of any
such information of the kind specified in this
Section 2.4(ii)(c)
if
requested, such stockholder’s nomination shall not be
considered in proper form pursuant to this
Section 2.4(ii)
.
(d)
Without
exception, no person shall be eligible for election or re-election
as a director of the Corporation at an annual meeting of
stockholders unless nominated in accordance with the provisions set
forth in this
Section
2.4(ii)
. In addition, a nominee shall not be eligible for
election or re-election if a stockholder or Stockholder Associated
Person, as applicable, takes action contrary to the representations
made in the Nominee Solicitation Statement applicable to such
nominee or if the Nominee Solicitation Statement applicable to such
nominee contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not
misleading. The chairperson of the annual meeting shall, if the
facts warrant, determine and declare at the annual meeting that a
nomination was not made in accordance with the provisions
prescribed by these Bylaws, and if the chairperson should so
determine, he or she shall so declare at the annual meeting, and
the defective nomination shall be disregarded.
(iii)
Advance
Notice of Director Nominations for Special
Meetings
.
(a)
If the
Board of Directors has authorized in the specific case that
stockholders may fill a vacancy or newly created directorship at a
special meeting of stockholders, and a special meeting has been
properly called for such purpose, nominations of persons for
election or appointment to the Board of Directors at such special
meeting shall be made only (1) by or at the direction of the Board
of Directors or (2) by any stockholder of the Corporation who (A)
is a stockholder of record at the time of the giving of the notice
required by this
Section
2.4(iii)
and on the record date for the determination of
stockholders entitled to vote at the special meeting and (B)
delivers a timely written notice of the nomination to the secretary
of the Corporation that includes the information set forth in
Sections 2.4(ii)(b) and
(ii)(c)
. To be timely, such notice must be received by the
secretary at the principal executive offices of the Corporation not
later than the close of business on the later of the 90th day prior
to such special meeting or the tenth day following the day on which
Public Announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to
be elected or appointed at such meeting. A person shall not be
eligible for election or appointment as a director at a special
meeting unless the person is nominated (i) by or at the direction
of the Board of Directors or (ii) by a stockholder in accordance
with the notice procedures set forth in this
Section 2.4(iii)
. In addition,
a nominee shall not be eligible for election or appointment if a
stockholder or Stockholder Associated Person, as applicable, takes
action contrary to the representations made in the Nominee
Solicitation Statement applicable to such nominee or if the Nominee
Solicitation Statement applicable to such nominee contains an
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein not misleading. Any
person nominated in accordance with this
Section 2.4(iii)
is subject to,
and must comply with, the provisions of
Section
2.4(ii)(c)
.
(b)
The
chairperson of such special meeting shall, if the facts warrant,
determine and declare at the meeting that a nomination or business
was not made in accordance with the procedures prescribed by these
Bylaws, and if the chairperson should so determine, he or she shall
so declare at the meeting, and the defective nomination or business
shall be disregarded.
(iv)
Other
Requirements and Rights
. In addition to the foregoing
provisions of this
Section
2.4
, a stockholder must also comply with all applicable
requirements of state law and of the 1934 Act with respect to the
matters set forth in this
Section 2.4
. Nothing in this
Section 2.4
shall
be deemed to affect any rights of:
(a)
a
stockholder to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 (or any
successor provision) under the 1934 Act; or
(b)
the
Corporation to omit a proposal from the Corporation’s proxy
statement pursuant to Rule 14a-8 (or any successor provision) under
the 1934 Act.
2.5
NOTICE
OF STOCKHOLDERS’ MEETINGS
Whenever
stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall
state the place, if any, date and hour of the meeting, the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
meeting, the record date for determining the stockholders entitled
to vote at the meeting, if such date is different from the record
date for determining stockholders entitled to notice of the
meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Except as otherwise
provided in the DGCL, the Certificate of Incorporation or these
Bylaws, the written notice of any meeting of stockholders shall be
given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting as of
the record date for determining the stockholders entitled to notice
of the meeting.
2.6
QUORUM
The
holders of a majority of the voting power of the stock issued,
outstanding and entitled to vote, present in person or represented
by proxy, shall constitute a quorum for the transaction of business
at all meetings of the stockholders, unless otherwise required by
law, the Certificate of Incorporation, these Bylaws or the rules of
any applicable stock exchange. Where a separate vote by a class or
series or classes or series is required, a majority of the voting
power of the then-issued and outstanding shares of such class or
series or classes or series, present in person or represented by
proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter, except as otherwise required
by law, the Certificate of Incorporation, these Bylaws or the rules
of any applicable stock exchange.
If a
quorum is not present or represented at any meeting of the
stockholders, then either (i) the chairperson of the meeting, or
(ii) the stockholders entitled to vote at the meeting, present in
person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present or represented. The
chairperson of the meeting shall have the authority to adjourn a
meeting of the stockholders in all other events. At such adjourned
meeting at which a quorum is present or represented, any business
may be transacted that might have been transacted at the meeting as
originally noticed.
2.7
ADJOURNED
MEETING; NOTICE
When a
meeting is adjourned to another time or place, unless these Bylaws
otherwise require, notice need not be given of the adjourned
meeting if the time, place, if any, thereof, and the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the
original meeting. If the adjournment is for more than 30 days, a
notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting. If after the adjournment
a new record date for stockholders entitled to vote is fixed for
the adjourned meeting, the Board of Directors shall fix a new
record date for notice of such adjourned meeting in accordance with
Section 213(a) of the DGCL and
Section 2.11
of these Bylaws,
and shall give notice of the adjourned meeting to each stockholder
of record entitled to vote at such adjourned meeting as of the
record date fixed for notice of such adjourned
meeting.
2.8
CONDUCT
OF BUSINESS
The
chairperson of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of business. The
chairperson of any meeting of stockholders shall be designated by
the Board of Directors; in the absence of such designation, the
chairperson of the Board of Directors, if any, the chief executive
officer (in the absence of the chairperson) or the president (in
the absence of the chairperson of the Board of Directors and the
chief executive officer), or in their absence any other executive
officer of the Corporation, shall serve as chairperson of the
stockholder meeting.
2.9
VOTING
The
stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of
Section 2.11
of these Bylaws,
subject to Section 217 (relating to voting rights of fiduciaries,
pledgors and joint owners of stock) and Section 218 (relating to
voting trusts and other voting agreements) of the
DGCL.
Except
as may be otherwise provided in the Certificate of Incorporation,
each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder.
Except
as otherwise provided by law, the Certificate of Incorporation,
these Bylaws or the rules of any applicable stock exchange, in all
matters other than the election of directors, the affirmative vote
of a majority of the voting power of the shares present in person
or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders. Except as
otherwise required by law, the Certificate of Incorporation, these
Bylaws or the rules of any applicable stock exchange, directors
shall be elected by a plurality of the voting power of the shares
present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. Where a separate
vote by a class or series or classes or series is required, in all
matters other than the election of directors, the affirmative vote
of the majority of the voting power of shares of such class or
series or classes or series present in person or represented by
proxy at the meeting shall be the act of such class or series or
classes or series, except as otherwise provided by law, the
Certificate of Incorporation, these Bylaws or the rules of any
applicable stock exchange.
2.10
STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless
otherwise provided in the Certificate of Incorporation, any action
required by statute to be taken at any annual or special meeting of
the stockholders, or any action which may be taken at an annual or
special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents
in writing, setting forth the action so taken, shall be (i) signed
by the holders of record on the record date (established in the
manner set forth in
Section 2.11
below and
Article VIII
of the
Corporation’s Certificate of Incorporation) of outstanding
shares of the Corporation having not less than the minimum number
of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were
present and voted;
provided
,
however
, that in the case of the
election or removal of directors by written consent, such consent
shall be effective only if signed by the holders of all outstanding
shares entitled to vote for the election of directors, and (ii)
delivered to the Corporation in accordance with Section 228 of the
DGCL.
2.11
RECORD
DATES
In
order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors and which
record date shall not be more than 60 nor less than 10 days before
the date of such meeting. If the Board of Directors so fixes a
date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board of
Directors determines, at the time it fixes such record date, that a
later date on or before the date of the meeting shall be the date
for making such determination.
If no
record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of and to vote at a
meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the
day on which the meeting is held.
A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting;
provided
,
however
, that the Board of
Directors may fix a new record date for determination of
stockholders entitled to vote at the adjourned meeting, and in such
case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as
that fixed for determination of stockholders entitled to vote in
accordance with the provisions of Section 213 of the DGCL and this
Section 2.11
at the
adjourned meeting.
In
order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted, and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
2.12
PROXIES
Each
stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by
proxy authorized by an instrument in writing or by a transmission
permitted by law filed in accordance with the procedure established
for the meeting, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period. The revocability of a proxy that states on its face
that it is irrevocable shall be governed by the provisions of
Section 212 of the DGCL. A written proxy may be in the form of a
telegram, cablegram, or other means of electronic transmission
which sets forth or is submitted with information from which it can
be determined that the telegram, cablegram, or other means of
electronic transmission was authorized by the
stockholder.
2.13
LIST OF
STOCKHOLDERS ENTITLED TO VOTE
The
officer who has charge of the stock ledger of the Corporation shall
prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at the meeting;
provided
,
however
, if the record date
for determining the stockholders entitled to vote is less than 10
days before the meeting date, the list shall reflect the
stockholders entitled to vote as of the tenth day before the
meeting date. The stockholder list shall be arranged in
alphabetical order and show the address of each stockholder and the
number of shares registered in the name of each stockholder. The
Corporation shall not be required to include electronic mail
addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder for
any purpose germane to the meeting for a period of at least 10 days
prior to the meeting (i) on a reasonably accessible electronic
network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii)
during ordinary business hours, at the Corporation’s
principal place of business. In the event that the Corporation
determines to make the list available on an electronic network, the
Corporation may take reasonable steps to ensure that such
information is available only to stockholders of the Corporation.
If the meeting is to be held at a place (as opposed to solely by
means of remote communication), then a list shall be produced and
kept at the time and place of the meeting during the whole time
thereof, and may be examined by any stockholder who is present. If
the meeting is to be held solely by means of remote communication,
then a list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to
access such list shall be provided with the notice of the meeting.
The stock ledger of the Corporation shall be the only evidence as
to the identity of the stockholders entitled to examine the stock
list and vote at the meeting and the number of shares held by each
of them.
2.14
INSPECTORS
OF ELECTION
Before
any meeting of stockholders, the Board of Directors shall appoint
an inspector or inspectors of election to act at the meeting or its
adjournment. The number of inspectors shall be either one or three.
If any person appointed as inspector fails to appear or fails or
refuses to act, then the chairperson of the meeting shall appoint a
person to fill that vacancy.
Each
inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his
or her ability. The inspector or inspectors so appointed and
designated shall (i) ascertain the number of shares of capital
stock of the Corporation outstanding and the voting power of each
share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital
stock of the Corporation represented at the meeting and such
inspector or inspectors’ count of all votes and
ballots.
In
determining the validity and counting of proxies and ballots cast
at any meeting of stockholders of the Corporation, the inspector or
inspectors may consider such information as is permitted by
applicable law. If there are three inspectors of election, the
decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all.
ARTICLE III
— DIRECTORS
3.1
POWERS
The
business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, except as may be
otherwise provided in the DGCL or the Certificate of
Incorporation.
3.2
NUMBER
OF DIRECTORS
The
Board of Directors shall consist of one or more members, each of
whom shall be a natural person. Unless the Certificate of
Incorporation fixes the number of directors, the number of
directors shall be determined from time to time solely by
resolution of the Whole Board. No reduction of the authorized
number of directors shall have the effect of removing any director
before that director’s term of office expires.
3.3
ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except
as provided in
Section
3.4
of these Bylaws, each director, including a director
elected to fill a vacancy, shall hold office until the expiration
of the term for which elected and until such director’s
successor is elected and qualified or until such director’s
earlier death, resignation or removal. Directors need not be
stockholders unless so required by the Certificate of Incorporation
or these Bylaws. The Certificate of Incorporation or these Bylaws
may prescribe other qualifications for directors.
Notwithstanding
anything in these Bylaws to the contrary, any nominee for director
in an uncontested election who receives a greater number of votes
“withheld” from his or her election than votes
“for” his or her election must tender his or her
resignation to the Board of Directors for consideration by the
Board of Directors.
3.4
RESIGNATION
AND VACANCIES
Any
director may resign at any time upon notice given in writing or by
electronic transmission to the Corporation;
provided
,
however
, that if such notice is given
by electronic transmission, such electronic transmission must
either set forth or be submitted with information from which it can
be determined that the electronic transmission was authorized by
the director. A resignation is effective when the resignation is
delivered unless the resignation specifies a later effective date
or an effective date determined upon the happening of an event or
events. Unless otherwise specified in the notice of resignation,
acceptance of such resignation shall not be necessary to make it
effective. A resignation which is conditioned upon the director
failing to receive a specified vote for reelection as a director
may provide that it is irrevocable. Unless otherwise provided in
the Certificate of Incorporation or these Bylaws, when one or more
directors resign from the Board of Directors, effective at a future
date, a majority of the directors then in office, including those
who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective.
Unless
otherwise provided in the Certificate of Incorporation or these
Bylaws or if authorized by resolution of the Board of Directors,
vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of
the stockholders having the right to vote as a single class shall
be filled only by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and
not by the stockholders. If the directors are divided into classes,
a person so elected by the directors then in office to fill a
vacancy or newly created directorship shall hold office until the
next election of the class for which such director shall have been
chosen and until his or her successor shall have been duly elected
and qualified.
If, at
the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the
whole Board of Directors (as constituted immediately prior to any
such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the voting
power of the capital stock of the Corporation at the time
outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the
directors then in office as aforesaid, which election shall be
governed by the provisions of Section 211 of the DGCL as far as
applicable.
3.5
PLACE
OF MEETINGS; MEETINGS BY TELEPHONE
The
Board of Directors may hold meetings, both regular and special,
either within or outside the State of Delaware.
Unless
otherwise restricted by the Certificate of Incorporation or these
Bylaws, members of the Board of Directors may participate in a
meeting of the Board of Directors by means of conference telephone
or other communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
3.6
REGULAR
MEETINGS
Regular
meetings of the Board of Directors may be held without notice at
such time and at such place as shall from time to time be
determined by the Board of Directors.
3.7
SPECIAL
MEETINGS; NOTICE
Special
meetings of the Board of Directors for any purpose or purposes may
be called at any time by the chairperson of the Board of Directors,
the chief executive officer, the president, the secretary or a
majority of the authorized number of directors, at such times and
places as he or she or they shall designate.
Notice
of the time and place of special meetings shall be:
(i)
delivered
personally by hand, by courier or by telephone;
(ii)
sent by
United States first-class mail, postage prepaid;
(iii)
sent by
facsimile; or
(iv)
sent by
electronic mail,
directed
to each director at that director’s address, telephone
number, facsimile number or electronic mail address, as the case
may be, as shown on the Corporation’s records.
If the
notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic mail,
it shall be delivered or sent at least 24 hours before the time of
the holding of the meeting. If the notice is sent by United States
mail, it shall be deposited in the United States mail at least four
days before the time of the holding of the meeting. Any oral notice
may be communicated to the director. The notice need not specify
the place of the meeting (if the meeting is to be held at the
Corporation’s principal executive office) nor the purpose of
the meeting.
3.8
QUORUM;
VOTING
At all
meetings of the Board of Directors, a majority of the total
authorized number of directors shall constitute a quorum for the
transaction of business. If a quorum is not present at any meeting
of the Board of Directors, then the directors present thereat may
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is
present.
The
affirmative vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board
of Directors, except as may be otherwise specifically provided by
statute, the Certificate of Incorporation or these
Bylaws.
If the
Certificate of Incorporation provides that one or more directors
shall have more or less than one vote per director on any matter,
every reference in these Bylaws to a majority or other proportion
of the directors shall refer to a majority or other proportion of
the votes of the directors.
3.9
BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless
otherwise restricted by the Certificate of Incorporation, these
Bylaws or statute, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent thereto in
writing or by electronic transmission and the writing or writings
or electronic transmission or transmissions are filed with the
minutes of proceedings of the Board of Directors or committee. Such
filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are
maintained in electronic form. Any person (whether or not then a
director) may provide, whether through instruction to an agent or
otherwise, that a consent to action will be effective at a future
time (including a time determined upon the happening of an event),
no later than 60 days after such instruction is given or such
provision is made and such consent shall be deemed to have been
given for purposes of this
Section 3.9
at such effective
time so long as such person is then a director and did not revoke
the consent prior to such time. Any such consent shall be revocable
prior to its becoming effective.
3.10
FEES
AND COMPENSATION OF DIRECTORS
Unless
otherwise restricted by the Certificate of Incorporation, these
Bylaws or statute, the Board of Directors shall have the authority
to fix the compensation of directors.
3.11
REMOVAL
OF DIRECTORS
A
director may be removed from office by the stockholders of the
Corporation with or without cause.
No
reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such
director’s term of office.
ARTICLE IV
— COMMITTEES
4.1
COMMITTEES
OF DIRECTORS
The
Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors or in these
Bylaws, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to (i) approve or
adopt, or recommend to the stockholders, any action or matter
(other than the election or removal of directors) expressly
required by the DGCL to be submitted to stockholders for approval,
or (ii) adopt, amend or repeal any bylaw of the
Corporation.
4.2
COMMITTEE
MINUTES
Each
committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
4.3
MEETINGS
AND ACTION OF COMMITTEES
Meetings
and actions of committees shall be governed by, and held and taken
in accordance with, the provisions of:
(i)
Section
3.5
(place of meetings and meetings by
telephone);
(ii)
Section
3.6
(regular meetings);
(iii)
Section
3.7
(special meetings; notice);
(iv)
Section
3
.8 (quorum; voting);
(v)
Section
3.9
(action without a meeting); and
(vi)
Section
7.5
(waiver of notice)
with
such changes in the context of those Bylaws as are necessary to
substitute the committee and its members for the Board of Directors
and its members. However:
(i)
the
time of regular meetings of committees may be determined by
resolution of the committee;
(ii)
special
meetings of committees may also be called by resolution of the
committee; and
(iii)
notice
of special meetings of committees shall also be given to all
alternate members, who shall have the right to attend all meetings
of the committee. The Board of Directors or a committee may adopt
rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
Any
provision in the Certificate of Incorporation providing that one or
more directors shall have more or less than one vote per director
on any matter shall apply to voting in any committee or
subcommittee, unless otherwise provided in the Certificate of
Incorporation or these Bylaws.
4.4
SUBCOMMITTEES
Unless
otherwise provided in the Certificate of Incorporation, these
Bylaws or the resolutions of the Board of Directors designating the
committee, a committee may create one or more subcommittees, each
subcommittee to consist of one or more members of the committee,
and delegate to a subcommittee any or all of the powers and
authority of the committee.
ARTICLE V
— OFFICERS
5.1
OFFICERS
The
officers of the Corporation shall be a president and a secretary.
The Corporation may also have, at the discretion of the Board of
Directors, a chairperson of the Board of Directors, a vice
chairperson of the Board of Directors, a chief executive officer, a
chief financial officer or treasurer, one or more vice presidents,
one or more assistant vice presidents, one or more assistant
treasurers, one or more assistant secretaries, and any such other
officers as may be appointed in accordance with the provisions of
these Bylaws. Any number of offices may be held by the same
person.
5.2
APPOINTMENT
OF OFFICERS
The
Board of Directors shall appoint the officers of the Corporation,
except such officers as may be appointed in accordance with the
provisions of
Section
5.3
of these Bylaws, subject to the rights, if any, of an
officer under any contract of employment. A vacancy in any office
because of death, resignation, removal, disqualification or any
other cause shall be filled in the manner prescribed in this
Article V for the regular election to such office.
5.3
SUBORDINATE
OFFICERS
The
Board of Directors may appoint, or empower the chief executive
officer or, in the absence of a chief executive officer, the
president, to appoint, such other officers and agents as the
business of the Corporation may require. Each of such officers and
agents shall hold office for such period, have such authority, and
perform such duties as are provided in these Bylaws or as the Board
of Directors may from time to time determine.
5.4
REMOVAL
AND RESIGNATION OF OFFICERS
Subject
to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without
cause, by the Board of Directors or by any officer upon whom such
power of removal may be conferred by the Board of Directors, except
that, unless specifically approved by the Board of Directors,
officers may not remove other officers chosen by the Board of
Directors.
Any
officer may resign at any time by giving written or electronic
notice to the Corporation;
provided
,
however
, that if such notice is given
by electronic transmission, such electronic transmission must
either set forth or be submitted with information from which it can
be determined that the electronic transmission was authorized by
the officer. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in the notice of resignation,
the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the Corporation under any contract to which the officer is
a party.
5.5
VACANCIES
IN OFFICES
Any
vacancy occurring in any office of the Corporation shall be filled
by the Board of Directors or as provided in
Section 5.3
.
5.6
REPRESENTATION
OF SHARES OR INTERESTS OF OTHER CORPORATIONS OR
ENTITIES
The
chairperson of the Board of Directors, the president, any vice
president, the treasurer, the secretary or any assistant secretary
of this Corporation, or any other person authorized by the Board of
Directors or the president or a vice president, is authorized to
vote, represent, and exercise on behalf of this Corporation all
rights incident to any and all shares or equity interests of any
other corporation or corporations or entity or entities standing in
the name of this Corporation, including the right to act by written
consent. The authority granted herein may be exercised either by
such person directly or by any other person authorized to do so by
proxy or power of attorney duly executed by such person having the
authority.
5.7
AUTHORITY
AND DUTIES OF OFFICERS
All
officers of the Corporation shall respectively have such authority
and perform such duties in the management of the business of the
Corporation as may be designated from time to time by the Board of
Directors and, to the extent not so provided, as generally pertain
to their respective offices, subject to the control of the Board of
Directors.
ARTICLE
VI — STOCK
6.1
STOCK
CERTIFICATES; PARTLY PAID SHARES
The
shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate
is surrendered to the Corporation. Every holder of stock
represented by certificates shall be entitled to have a certificate
signed by, or in the name of the Corporation by the chairperson of
the Board of Directors or vice-chairperson of the Board of
Directors, or the president or a vice-president, and by the
treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the Corporation representing the number of
shares registered in certificate form. Any or all of the signatures
on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such
officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as
if such person were such officer, transfer agent or registrar at
the date of issue. The Corporation shall not have power to issue a
certificate in bearer form.
The
Corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to
be paid therefor. Upon the face or back of each stock certificate
issued to represent any such partly-paid shares, or upon the books
and records of the Corporation in the case of uncertificated
partly-paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the
declaration of any dividend on fully-paid shares, the Corporation
shall declare a dividend upon partly-paid shares of the same class,
but only upon the basis of the percentage of the consideration
actually paid thereon.
6.2
SPECIAL
DESIGNATION ON CERTIFICATES
If the
Corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the
designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized
on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock;
provided
,
however
, that, except as otherwise
provided in Section 202 of the DGCL, in lieu of the foregoing
requirements there may be set forth on the face or back of the
certificate that the Corporation shall issue to represent such
class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights. Within a reasonable time after the
issuance or transfer of uncertificated stock, the Corporation shall
send to the registered owner thereof a written notice containing
the information required to be set forth or stated on certificates
pursuant to this
Section
6.2
or Sections 151, 156, 202(a) or 218(a) of the DGCL or
with respect to this
Section 6.2
a statement that
the Corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Except as otherwise
expressly provided by law, the rights and obligations of the
holders of uncertificated stock and the rights and obligations of
the holders of certificates representing stock of the same class
and series shall be identical.
6.3
LOST,
STOLEN OR DESTROYED CERTIFICATES
Except
as provided in this
Section 6.3
, no new
certificates for shares shall be issued to replace a previously
issued certificate unless the latter is surrendered to the
Corporation and cancelled at the same time. The Corporation may
issue a new certificate of stock or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate, or such
owner’s legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate or
uncertificated shares.
6.4
DIVIDENDS
The
Board of Directors, subject to any restrictions contained in the
Certificate of Incorporation or applicable law, may declare and pay
dividends upon the shares of the Corporation’s capital stock.
Dividends may be paid in cash, in property, or in shares of the
Corporation’s capital stock, subject to the provisions of the
Certificate of Incorporation.
The
Board of Directors may set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for any
proper purpose and may abolish any such reserve.
6.5
TRANSFER
OF STOCK
Transfers
of record of shares of stock of the Corporation shall be made only
upon its books by the holders thereof, in person or by an attorney
duly authorized, and, if such stock is certificated, upon the
surrender of a certificate or certificates for a like number of
shares, properly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer;
provided
,
however
, that such succession,
assignment or authority to transfer is not prohibited by the
Certificate of Incorporation, these Bylaws, applicable law or
contract.
6.6
STOCK
TRANSFER AGREEMENTS
The
Corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more
classes of stock of the Corporation to restrict the transfer of
shares of stock of the Corporation of any one or more classes owned
by such stockholders in any manner not prohibited by the
DGCL.
6.7
REGISTERED
STOCKHOLDERS
The
Corporation:
(i)
shall
be entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends and to
vote as such owner;
(ii)
shall
be entitled (to the fullest extent permitted by law) to hold liable
for calls and assessments the person registered on its books as the
owner of shares; and
(iii)
shall
not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of another person,
whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
ARTICLE VII
— MANNER OF GIVING NOTICE AND
WAIVER
7.1
NOTICE
OF STOCKHOLDERS’ MEETINGS
Notice
of any meeting of stockholders, if mailed, is given when deposited
in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on
the Corporation’s records. An affidavit of the secretary or
an assistant secretary of the Corporation or of the transfer agent
or other agent of the Corporation that the notice has been given
shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
7.2
NOTICE
BY ELECTRONIC TRANSMISSION
Without
limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the DGCL, the Certificate
of Incorporation or these Bylaws, any notice to stockholders given
by the Corporation under any provision of the DGCL, the Certificate
of Incorporation or these Bylaws shall be effective if given by a
form of electronic transmission consented to by the stockholder to
whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the Corporation. Any such
consent shall be deemed revoked if:
(i)
the
Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with
such consent; and
(ii)
such
inability becomes known to the secretary or an assistant secretary
of the Corporation or to the transfer agent, or other person
responsible for the giving of notice.
However,
the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(i)
if by
facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice;
(ii)
if by
electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice;
(iii)
if by a
posting on an electronic network together with separate notice to
the stockholder of such specific posting, upon the later of (A)
such posting and (B) the giving of such separate notice;
and
(iv)
if by
any other form of electronic transmission, when directed to the
stockholder.
An
affidavit of the secretary or an assistant secretary or of the
transfer agent or other agent of the Corporation that the notice
has been given by a form of electronic transmission shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein.
An
“
electronic
transmission
” means any form of communication, not
directly involving the physical transmission of paper, that creates
a record that may be retained, retrieved, and reviewed by a
recipient thereof, and that may be directly reproduced in paper
form by such a recipient through an automated process.
7.3
NOTICE
TO STOCKHOLDERS SHARING AN ADDRESS
Except
as otherwise prohibited under the DGCL, without limiting the manner
by which notice otherwise may be given effectively to stockholders,
any notice to stockholders given by the Corporation under the
provisions of the DGCL, the Certificate of Incorporation or these
Bylaws shall be effective if given by a single written notice to
stockholders who share an address if consented to by the
stockholders at that address to whom such notice is given. Any such
consent shall be revocable by the stockholder by written notice to
the Corporation. Any stockholder who fails to object in writing to
the Corporation, within 60 days of having been given written notice
by the Corporation of its intention to send the single notice,
shall be deemed to have consented to receiving such single written
notice.
7.4
NOTICE
TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL
Whenever
notice is required to be given, under the DGCL, the Certificate of
Incorporation or these Bylaws, to any person with whom
communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be
taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as
if such notice had been duly given. In the event that the action
taken by the Corporation is such as to require the filing of a
certificate under the DGCL, the certificate shall state, if such is
the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom
communication is unlawful.
7.5
WAIVER
OF NOTICE
Whenever
notice is required to be given to stockholders, directors or other
persons under any provision of the DGCL, the Certificate of
Incorporation or these Bylaws, a written waiver, signed by the
person entitled to notice, or a waiver by electronic transmission
by the person entitled to notice, whether before or after the time
of the event for which notice is to be given, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders or the Board of Directors, as
the case may be, need be specified in any written waiver of notice
or any waiver by electronic transmission unless so required by the
Certificate of Incorporation or these Bylaws.
ARTICLE VIII
— INDEMNIFICATION
8.1
INDEMNIFICATION
OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS
Subject
to the other provisions of this
Article VIII
, the Corporation
shall indemnify, to the fullest extent permitted by the DGCL, as
now or hereinafter in effect, any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “
Proceeding
”) (other than an action
by or in the right of the Corporation) by reason of the fact that
such person is or was a director of the Corporation or an officer
of the Corporation, or while a director of the Corporation or
officer of the Corporation is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such Proceeding if such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s
conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that such person’s conduct was unlawful.
8.2
INDEMNIFICATION
OF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION
Subject
to the other provisions of this
Article VIII
, the Corporation
shall indemnify, to the fullest extent permitted by the DGCL, as
now or hereinafter in effect, any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation, or while
a director or officer of the Corporation is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another Corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
8.3
SUCCESSFUL
DEFENSE
To the
extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described in
Section 8.1 or Section 8.2
, or
in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection
therewith.
8.4
INDEMNIFICATION
OF OTHERS; ADVANCE PAYMENT TO OTHERS
Subject
to the other provisions of this
Article VIII
, the Corporation
shall have power to advance expenses to and indemnify its employees
and its agents to the extent not prohibited by the DGCL or other
applicable law. The Board of Directors shall have the power to
delegate the determination of whether employees or agents shall be
indemnified or receive an advancement of expenses to such person or
persons as the Board of Directors determines.
8.5
ADVANCE
PAYMENT OF EXPENSES
Expenses
(including attorneys’ fees) incurred by an officer or
director of the Corporation in defending any Proceeding shall be
paid by the Corporation in advance of the final disposition of such
Proceeding upon receipt of a written request therefor (together
with documentation reasonably evidencing such expenses) and an
undertaking by or on behalf of the person to repay such amounts if
it shall ultimately be determined that the person is not entitled
to be indemnified under this
Article VIII
or the DGCL. Such
expenses (including attorneys’ fees) incurred by former
directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the Corporation deems
reasonably appropriate and shall be subject to the
Corporation’s expense guidelines. The right to advancement of
expenses shall not apply to any claim for which indemnity is
excluded pursuant to these Bylaws, but shall apply to any
Proceeding referenced in
Section 8.6(ii) or 8.6(iii)
of
these Bylaws prior to a determination that the person is not
entitled to be indemnified by the Corporation.
8.6
LIMITATION
ON INDEMNIFICATION
Subject
to the requirements in
Section 8.3
and the DGCL, the
Corporation shall not be obligated to indemnify any person pursuant
to this
Article
VIII
in connection with any Proceeding (or any part of any
Proceeding):
(i)
for
which payment has actually been made to or on behalf of such person
under any statute, insurance policy, indemnity provision, vote or
otherwise, except with respect to any excess beyond the amount
paid;
(ii)
for an
accounting or disgorgement of profits pursuant to Section 16(b) of
the 1934 Act, or similar provisions of federal, state or local
statutory law or common law, if such person is held liable therefor
(including pursuant to any settlement arrangements);
(iii)
for any
reimbursement of the Corporation by such person of any bonus or
other incentive-based or equity-based compensation or of any
profits realized by such person from the sale of securities of the
Corporation, as required in each case under the 1934 Act (including
any such reimbursements that arise from an accounting restatement
of the Corporation pursuant to Section 304 of the Sarbanes-Oxley
Act of 2002 (the “
Sarbanes-Oxley Act
”), or the
payment to the Corporation of profits arising from the purchase and
sale by such person of securities in violation of Section 306 of
the Sarbanes-Oxley Act), if such person is held liable therefor
(including pursuant to any settlement arrangements);
(iv)
initiated
by such person against the Corporation or its directors, officers,
employees, agents or other indemnitees, unless (a) the Board of
Directors authorized the Proceeding (or the relevant part of the
Proceeding) prior to its initiation, (b) the Corporation provides
the indemnification, in its sole discretion, pursuant to the powers
vested in the Corporation under applicable law, (c) otherwise
required to be made under
Section 8.7
of these Bylaws or
(d) otherwise required by applicable law; or
(v)
if
prohibited by applicable law;
provided
,
however
, that if any provision or
provisions of this
Article
VIII
shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (1) the validity, legality and
enforceability of the remaining provisions of this
Article VIII
(including,
without limitation, each portion of any paragraph or clause
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and (2) to the fullest extent possible, the provisions of
this
Article VIII
(including, without limitation, each such portion of any paragraph
or clause containing any such provision held to be invalid, illegal
or unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
8.7
DETERMINATION;
CLAIM
If a
claim for indemnification or advancement of expenses under this
Article VIII
is not
paid in full within 90 days after receipt by the Corporation of the
written request therefor, the claimant shall be entitled to an
adjudication by a court of competent jurisdiction of his or her
entitlement to such indemnification or advancement of expenses. The
Corporation shall indemnify such person against any and all
expenses that are incurred by such person in connection with any
action for indemnification or advancement of expenses from the
Corporation under this
Article VIII
, to the extent
such person is successful in such action, and to the extent not
prohibited by law. In any such suit, the Corporation shall, to the
fullest extent not prohibited by law, have the burden of proving
that the claimant is not entitled to the requested indemnification
or advancement of expenses.
8.8
NON-EXCLUSIVITY
OF RIGHTS
The
indemnification and advancement of expenses provided by, or granted
pursuant to, this
Article
VIII
shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may
be entitled under the Certificate of Incorporation or any statute,
bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in such person’s official
capacity and as to action in another capacity while holding such
office. The Corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers,
employees or agents respecting indemnification and advancement of
expenses, to the fullest extent not prohibited by the DGCL or other
applicable law.
8.9
INSURANCE
The
Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person’s status
as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions
of the DGCL.
8.10
SURVIVAL
The
rights to indemnification and advancement of expenses conferred by
this
Article VIII
shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
8.11
EFFECT
OF REPEAL OR MODIFICATION
Any
amendment, alteration or repeal of this
Article VIII
shall not
adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to such amendment,
alteration or repeal.
8.12
CERTAIN
DEFINITIONS
For
purposes of this
Article
VIII
, references to the “
Corporation
” shall include, in
addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions
of this
Article
VIII
with respect to the resulting or surviving corporation
as such person would have with respect to such constituent
corporation if its separate existence had continued. For purposes
of this
Article
VIII
, references to “
other enterprises
” shall include
employee benefit plans; references to “
fines
” shall include any excise
taxes assessed on a person with respect to an employee benefit plan
(excluding any “parachute payments” within the meanings
of Sections 280G and 4999 of the Internal Revenue Code of 1986, as
amended); and references to “
serving at the request of the
Corporation
” shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties
on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “
not opposed to the best interests of the
Corporation
” as referred to in this
Article VIII
.
ARTICLE IX
— GENERAL MATTERS
9.1
EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS
Except
as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the Board of Directors may authorize any officer or
officers, or agent or agents, to enter into any contract or execute
any document or instrument in the name of and on behalf of the
Corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the Board of
Directors or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit
or to render it liable for any purpose or for any
amount.
9.2
FISCAL
YEAR
The
fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors and may be changed by the Board of
Directors.
9.3
SEAL
The
Corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the Board of Directors. The Corporation may
use the corporate seal by causing it or a facsimile thereof to be
impressed or affixed or in any other manner
reproduced.
9.4
CONSTRUCTION;
DEFINITIONS
Unless
the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the
construction of these Bylaws. Without limiting the generality of
this provision, the singular number includes the plural, the plural
number includes the singular, and the term “
person
” includes both an entity
and a natural person.
ARTICLE X
— AMENDMENTS
These
Bylaws may be adopted, amended or repealed by the stockholders
entitled to vote;
provided
,
however
, that the
affirmative vote of the holders of at least a majority of the total
voting power of all outstanding shares of capital stock of the
Corporation entitled to vote thereon, voting together as a single
class, shall be required for the stockholders of the Corporation to
alter, amend or repeal, or adopt any bylaw inconsistent with, the
following provisions of these Bylaws:
Article II, Sections 3.1, 3.2, 3.4 and
3.11 of Article III
,
Article VIII
and this
Article X
(including, without limitation, any such Article or Section as
renumbered as a result of any amendment, alteration, change,
repeal, or adoption of any other Bylaw). The Board of Directors,
acting by the affirmative vote of at least a majority of the Whole
Board, shall also have the power to adopt, amend or repeal Bylaws;
provided
,
however
, that a bylaw amendment adopted
by stockholders which specifies the votes that shall be necessary
for the election of directors shall not be further amended or
repealed by the Board of Directors.