Exhibit 10.12
STOCK PURCHASE AGREEMENT (the "Agreement") dated as of February 3rd 2006,
between RelationServe Media, Inc., a Delaware corporation (the "Seller"), and
Sunrise Equity Partners, L.P., Inc. (the "Purchaser").
W I T N E S S E T H:
NOW THEREFORE, in consideration of the mutual promises and
representations, warranties, covenants and agreements set forth herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I - PURCHASE AND SALE
1.1 Purchase and Sale. On the terms and subject to the conditions set
forth in this Agreement, at the Closing (as defined in Section 2.2), the Seller
will sell and the Purchaser will purchase, 500,000 shares (the "Shares") of
Common Stock $.001 par value of the Company.
ARTICLE II - PURCHASE PRICE AND CLOSING
2.1 Purchase Price. The purchase price (the "Purchase Price") to be paid
by the Purchaser to the Seller to acquire the Shares shall be $750,000.
2.2 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place concurrent with the effectiveness of
the Consolidation (as such term is defined in the Securities Purchase Agreement
(the "SendTec Purchase Agreement"), dated as of October 31, 2005 among SendTec
Acquisition Corp., a Delaware corporation, the Company, each purchaser
identified on the signature pages thereto (collectively, the "Purchasers") and
Christiana Corporate Services, Inc., a Delaware corporation, in its capacity as
administrative agent for the Purchasers. The date on which the Closing occurs is
the "Closing Date."
2.3 Seller Deliveries at Closing. At the Closing, the Seller shall deliver
to the Purchaser the following:
(a) A certificate evidencing the Shares, duly authorized, validly issued,
fully paid and non-assessable, registered in the name of the Purchaser;
(b) Such other documents as shall be reasonably be requested by the
Purchaser.
2.4 Purchaser Deliveries at Closing. At the Closing, the Purchaser shall
deliver to the Seller the following:
(a) The Purchase Price, in cash, at the option of the Seller, by either
(x) wire transfer of immediately available funds to an account designated in
writing by the Seller prior to the date hereof, or (y) certified or cashier's
check; and
(b) Such other documents as shall reasonably be requested by the Seller.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows:
3.1 Corporate Existence and Power. The Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Delaware, and has all corporate powers required to carry on its business as
now conducted. The Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities makes such
qualification necessary.
3.2 Corporate Authorization. The execution, delivery and performance by
the Seller of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized, and no additional corporate or
stockholder action is required for the approval of this Agreement. This
Agreement has been duly executed and delivered and constitutes the legal, valid
and binding agreement of the Seller, enforceable against the Seller in
accordance with its terms.
3.3 Governmental Approval. The execution, delivery and performance by the
Seller of this Agreement, and the consummation of the transactions contemplated
by the Seller require no action by or in respect of, or filing with, any
governmental body, agency, official or authority.
3.4 Non-Contravention. The execution, delivery and performance by the
Seller of this Agreement, and the consummation by the Seller of the transactions
contemplated hereby do not and will not (a) contravene or conflict with the
Certificate and By-laws or any material agreement to which the Seller is a party
or by which it is bound other than the SendTec Purchase Agreement and certain
documents executed in connection with the SendTec Purchase Agreement for which
the Seller will obtain a waiver; (b) contravene or conflict with or constitute a
material violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to the Seller; (c)
constitute a default (or would constitute a default with notice or lapse of time
or both) under or give rise to a right of termination, cancellation or
acceleration or loss of any benefit under any material agreement, contract or
other instrument binding upon the Seller or under any material license,
franchise, permit or other similar authorization held by the Seller; or (d)
result in the creation or imposition of any Lien (as defined below) on any asset
of the Seller. For purposes of this Agreement, the term "Lien" means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest,
claim or encumbrance of any kind in respect of such asset.
3.5 SEC Documents. All SEC Reports (as such term is defined in the SendTec
Purchase Agreement) filed by the Seller as of or for any period beginning on or
after June 10, 2005, (i) were prepared in all material respects in accordance
with the requirements of the Securities Exchange Act of 1934, as amended and
(ii) did not at the time they were filed (or, if amended or superseded by a
filing prior to the date hereof, then on the date of such filing) contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
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3.6 Additional Representations. The Seller also makes the additional
representations and warranties as are provided in Sections 3.1 and 3.2 of the
SendTec Purchase Agreement unless (i) such representations and warranties
specifically relate to the transactions contemplated by the SendTec Purchase
Agreement or (ii) the "Purchasers" (as such term is defined in the SendTec
Purchase Agreement) have agreed to waive a breach of any such representations
and warranties.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
4.1 Existence and Power. The Purchaser is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization. The
Purchaser has all powers required to carry on such Purchaser's business as now
conducted.
4.2 Authorization. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized, and no additional
action is required for the approval of this Agreement. This Agreement has been
duly executed and delivered and constitutes a valid and binding agreement of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as may be limited by bankruptcy, reorganization, insolvency, moratorium
and similar laws of general application relating to or affecting the enforcement
of rights of creditors and except that enforceability of their obligations
thereunder are subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
4.3 Investment. The Purchaser is acquiring the securities described herein
for its own account and not with a view to, or for sale in connection with, any
distribution thereof, nor with the intention of distributing or reselling the
same, provided, however, that by making the representation herein, the Purchaser
does not agree to hold any of the securities for any minimum or other specific
term and reserves the right to dispose of the securities at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act. The Purchaser is aware that none of the securities has been
registered under the Securities Act or under applicable state securities or blue
sky laws. The Purchaser is an "Accredited Investor" as such term is defined in
Rule 501 of Regulation D, as promulgated under the Securities Act.
ARTICLE V - COVENANTS
5.1 Registration. The Seller hereby grants the Purchaser unlimited and
customary "piggyback" registration rights with respect to the Shares the
Purchaser is receiving in connection with this Agreement. Such piggyback
registration rights provision will survive until such time as the Shares may be
sold without volume restrictions pursuant to Rule 144(k) of the Securities Act
of 1933, as amended. In addition, the Seller is obligated to file a Registration
Statement (the "Required Registration") on or before forty-five days after the
Consolidation (as such term is defined in the SendTec Purchase Agreement)
pursuant to a Registration Rights Agreement it is entering into on the date of
the Consolidation as well as a Registration Rights Agreement it entered into on
October 31, 2005 and as filed under a Form 8-K filing with the Securities and
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Exchange Committee on November 4, 2005. The Seller hereby undertakes and agrees
to register the resale of all of the Shares in the Required Registration. All
fees and expenses incident to the performance of or compliance with this Section
5.1 shall be borne by the Seller other than broker or similar commission or
legal fees of the Purchaser. In addition to the foregoing, the Purchaser shall
have such additional rights as are provided in the Registration Rights Agreement
dated October 31, 2005 between the Company and the holders of Series A
Convertible Preferred Stock, par value $0.001 per share including to all
registration and effectiveness requirements and applicable penalties for failure
to meet those requirements.
5.2 No Breach; Further Assurances. Each of the Seller and the Purchaser
will (i) use its best efforts to ensure that all of its respective
representations and warrants contained herein are true in all material respects
at and as of the date hereof, and as of the Closing no material breach shall
have occurred with respect to any of the parties' covenants, representations or
warranties contained herein that has not been cured by the Closing; (ii) not
voluntarily take any action or do anything which will cause a material breach of
or default respecting such covenants, representations or warranties; and (iii)
promptly notify the other of any event or fact which represents a material
breach or default. Each of the Seller and the Purchaser agrees to cooperate
fully with the other party and to execute such further instruments, documents
and agreements and to give such further written assurances as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
ARTICLE VI - CONDITIONS TO CLOSING
6.1 Conditions to Obligations of Purchaser to Effect the Closing. The
obligations of the Purchaser to effect the Closing and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing, of each of the following conditions, any of which may be waived,
in writing, by the Purchaser:
(a) The representations and warranties of the Seller in Article III hereof
shall be true and correct in all material respects, except that any such
representations and warranties that are given as of a specified date and relate
solely to a specified date or period shall be true and correct in all material
respects only as of such date or period;
(b) The Seller shall have performed in all material respects all covenants
and agreements required to be performed by it under this Agreement on or prior
to the Closing Date; and
(c) The Consolidation shall have become effective.
6.2 Conditions to Obligations of the Seller to Effect the Closing. The
obligations of the Seller to effect the Closing and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing, of each of the following conditions, any of which may be waived,
in writing, by the Seller:
(a) The representations and warranties of the Purchaser in Article IV
hereof shall be true and correct in all material respects, except that any such
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representations and warranties that are given as of a specified date and relate
solely to a specified date or period shall be true and correct in all material
respects only as of such date or period;
(b) The Purchaser shall have performed in all material respects all
covenants and agreements required to be performed by it under this Agreement on
or prior to the Closing Date.
(c) The Consolidation shall have become effective.
ARTICLE VII - TERMINATION
The obligation of the parties to effect the transactions contemplated
herein may be terminated (i) by the mutual written consent of the Seller and the
Purchaser or (ii) by either party in writing, without liability to such party on
account of such termination (provided the terminating party is not otherwise in
material breach and/or default of this Agreement) if the Consolidation shall
have not occurred on or before March 20, 2006, in which case the Purchaser may
terminate this Agreement and receive any funds that it has placed in escrow in
connection with this Agreement.
ARTICLE VIII - MISCELLANEOUS
8.1 Fees and Expenses. Except as provided in Section 5.1, the parties
hereto shall pay their own costs and expenses in connection herewith.
8.2 Notices. All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing, executed on behalf of the
sender, and shall be deemed to have been duly given or delivered (a) on the date
of delivery if delivered personally or, upon confirmation, if transmitted by
facsimile, (b) on the second business day following the date of dispatch if
delivered by an internationally recognized next-day courier service, or (c) on
the fifth business day following the date of mailing if delivered by registered
mail, first-class postage paid,
If to the Seller, to:
RelationServe Media, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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if to the Purchaser, to:
Sunrise Equity Partners, L.P.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address or to such other Person as a Party hereto shall have
last designated by notice to the other Parties.
8.3 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND PERFORMED ENTIRELY THEREIN AND WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS
PRINCIPLES THAT WOULD REQUIRE APPLICATION OF A LAW OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK.
8.4 Jurisdiction and Venue. Unless otherwise provided herein, the parties
hereto agree to submit to the jurisdiction of any Federal or state court located
in the State of New York for the purpose of resolving any action or claim
arising out of the performance of the provisions of this Agreement.
8.5 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Parties named herein and their respective successors and
permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other party. Any purported assignment in violation of this Agreement is
void.
8.6 Severability. If any provision of this Agreement, or the application
thereof, shall for any reason or to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision to other persons
or circumstances shall continue in full force and effect and in no way be
affected, impaired or invalidated.
8.7 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties relating to the subject matter hereof and merges
and supersedes all prior and contemporaneous agreements and understandings,
whether oral or written, of any kind or nature between the parties hereto in
respect of the subject matter of this Agreement.
8.8 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party shall be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law, or in equity
on such party, and the exercise of any one remedy shall not preclude the
exercise of any other.
8.9 Amendment and Waivers. Any term or provision of this Agreement may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by the Seller and the Purchaser. The waiver by a party
of any breach hereof or default in the performance hereof shall not be deemed to
constitute a waiver of any other default or any succeeding breach or default.
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8.10 Construction of Agreement; Knowledge. For purposes of this Agreement,
the term "knowledge," when used in reference to a corporation means the
knowledge of the directors and executive officers of such corporation
(including, if applicable, any person designated as a chief scientific, medical
or technical officer) assuming such persons shall have made inquiry that is
customary and appropriate under the circumstances to which reference is made,
and when used in reference to an individual means the knowledge of such
individual assuming the individual shall have made inquiry that is customary and
appropriate under the circumstances to which reference is made.
8.11 Counterparts. This Agreement may be executed in one or more
counterparts, all and each of which shall be deemed an original and all of which
taken together shall constitute one and the same instrument. In the event that
any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
8.12 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of the date first above written.
RelationServe Media Inc.
By: /s/
--------------------------------
Name:
Title:
Sunrise Equity Partners, L.P.
By: /s/
--------------------------------
Name:
Title:
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