INVESTOR RELATIONS AGREEMENT
Exhibit 10.12
This
Agreement, dated as of November 13, 2007 (“Effective Date”), by and between
DigitalPost Interactive Inc., a Nevada corporation (the “Company”) and Crown Financial
Investment Group, LTD. (“Crown”) (collectively referred to as the
“Parties”).
WHEREAS,
Crown maintains a network to disseminate information;
WHEREAS,
the Company is a publicly traded corporation having shares of its common stock,
par value $.00l per share ("Common Stock") listed on the
OTC Bulletin Board as DGLP.OB;
WHEREAS,
the Company desires to gain further exposure and create awareness among the
investment community relating to the Company's business for the benefit of the
Company's stockholders;
WHEREAS,
in furtherance of its goals, the Company has utilized Crown for services using
its investor awareness network and desires to continue utilizing Crown for its
same services.
NOW
THEREFORE, in consideration of the mutual promises and consideration set forth
herein, the Parties agree as follows:
1. Term:
This agreement is for a term of six (6) months commencing on the Effective Date
(“Term"). The effect of termination is that all unvested or any
unexercised warrant shares pursuant to the schedule set forth in Exhibit A will
be canceled.
2. Crown
Services: Crown has developed its own proprietary system of promoting the
Company through investor awareness campaigns and will use its own sole
discretion in executing such program over the Term of this
Agreement. Crown shall not provide securities related advice to the
Company, offer or sell the Company's Common Stock or any other securities in
private or public transactions, effect securities transactions on behalf of the
Company, or receive any commissions or transaction-based compensation. Crown
solely shall be responsible for the costs and expenses associated with
distributing, creating, and marketing the investor awareness
materials. Crown will perform its services to the best of its
abilities to convey an accurate description of the Company's business based on
the information it receives from the Company.
3. Crown
Representations. In order to induce the Company to enter into this Agreement,
Crown hereby represents and warrants to the Company as follows: (a) Crown will
comply with all federal and state laws, rules and regulations including, without
limitations, those relating to the disclosure to the compensation received by
Crown. Crown shall include an appropriate legend on all distributed
material describing the compensation received and receivable by Crown from
Company. Crown will fully disclose on all distributable material any interest it
has in Company. Crown will not violate any federal or state laws relating to
delivery of unsolicited information by any means including, but not limited to
fax, email, mail or telephonically, and (b) Crown is neither a registered
broker-dealer nor an affiliate of a registered broker-dealer.
4.
Consideration to Crown. In consideration of the agreement to perform services
listed in paragraph 2 above, by Crown, the Company shall issue herewith to Crown
warrants to purchase an aggregate of 3,000,000 shares of the Company’s Common
Stock at an exercise price of $1.20 per share (warrant form attached hereto as
Exhibit B)
according to the issuance, vesting and expiration schedule as set forth on
Exhibit A.
5.
Independent Contractor: At all times during the term hereof, Crown shall be an
independent contractor in providing the services hereunder, with the sole right
to supervise, manage, operate, control and direct its performance incident to
such Crown services. Nothing contained in this Agreement shall be deemed or
construed to create a partnership or joint venture, to create the relationships
of principal/agent or otherwise create any fiduciary duty or any liability
whatsoever of either party with respect to the indebtedness, liabilities,
obligations or actions of the other party or any of their employees or agents,
or any other person or entity. Crown has no right to legally bind or obligate
Company in any manner without the prior written consent of Company. Crown shall
be legally responsible for its own employees and all employee matters in the
performance of its services hereunder.
6. Return
of Property. Upon a termination of this agreement for any reason whatsoever,
Crown shall promptly deliver to Company all property belonging to, or
administered by, the Company, including, without limitation, all materials
relating to any Confidential Information (as defined below). Crown further
agrees that it shall not make or retain any copy or extract from such
materials.
7.
Protection of Confidential Information. Crown shall maintain any Confidential
Information in strict confidence and shall not disclose any Confidential
Information to any other person, except as necessary in connection with the
performance of Crown's duties and obligations under this Agreement. Crown shall
not use any Confidential Information for any purpose whatsoever except in
connection with the performance of Crown's duties and obligations under this
Agreement.
"Confidential Information"
shall mean any and all information pertaining to the Company, its respective
business, and its ownership or other activities with respect to its securities,
whether such information is in written form or communicated orally, visually or
otherwise, that is proprietary, non-public or relates to any trade secret,
including, but not limited to, materials relating to any security or company,
strategies for business plans, financial information, ideas, concepts,
techniques, models, data, documentation, research, and "know-how." Notwithstanding
the foregoing, "Confidential
information" shall not include information that (i) is or becomes
generally available to, or known by, the public (either prior to or after the
furnishings of such documents or information) through no fault of Crown; (ii)
was known by Crown prior to its receipt thereof; (iii) becomes available to
Crown on a non-confidential basis from any source (other than the disclosing
person or its representatives) that is not prohibited from disclosing such
information by any contractual, legal, or fiduciary obligation, or (iv) is
independently acquired or developed by Crown without violating any of his
obligations under this Agreement.
8. False
or Misleading Information. The Company warrants that it will provide
Crown with accurate financial, corporate, and other data required by Crown and
necessary for full disclosure of all facts relevant to any efforts required of
Crown under this Agreement. Such information shall be furnished promptly upon
request. If the Company fails to provide such information, or if any information
provided by the Company to Crown shall be false or misleading, or if the Company
omits or fails to provide or withholds relevant material information to Crown or
to any professionals engaged, then, in such event any and all consideration paid
hereunder will be retained by Crown as liquidated damages, and this Agreement
shall be null and void, and Crown shall have no further obligation
hereunder.
9. Indemnification. The
Company agrees to indemnify, to the extent permitted by law, Crown, its officers
and directors, and each person who controls Crown (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities, and expenses
caused by and any untrue or alleged untrue statement of material fact made by
the Company or any omission or alleged omission of a material fact required to
be stated, except insofar as the same are caused by or contained in (i) any
information furnished in writing to the Company by Crown expressly for use
therein, or (ii) any statement made by Crown not based on information provided
by the Company.
Any
person entitled to indemnification under this Section 9 shall (i) give prompt
written notice to the indemnifying part of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party), (ii) unless, in such
indemnified party's reasonable judgment, a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for such settlement
made by the indemnified party without its consent. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
10.
Arbitration. All controversies, which may arise hereunder concerning the
construction, performance or breach of this Agreement, shall be determined by
arbitration. Any arbitration under this Agreement shall be conducted in Orange
County, California.
11.
Applicable Law: The terms of this Agreement shall be governed by the laws of the
State of California.
12.
Severability: If any one or more of the provisions or part of a provision
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect the validity or unenforceability of this
Agreement, but this Agreement shall be reformed and construed in such
jurisdiction as if such invalid or illegal or unenforceable provision or part of
a provision had never been contained herein and such provision or part reformed
so that it would be valid, legal and enforceable in such jurisdiction to the
maximum extent possible.
13.
Successors: This Agreement shall not be assigned by Crown; however, nothing
contained herein shall prohibit or prevent the assignment of the warrants by
Crown to non-parties hereto.
14.
Entire Agreement: This Agreement contains the entire understanding among the
parties with respect to the subject matter hereof, inducements of conditions,
express or implied, oral or written except as herein contained. This Agreement
may not be modified or amended, other than by an agreement in writing signed by
the parties.
15. Construction. Wherever
possible, each provision of this Agreement will be interpreted so that it is
valid under the applicable law. If any provision of this Agreement is
to any extent invalid under the applicable law, that provision will still be
effective to the extent it remains valid. The remainder of this
Agreement also will continue to be valid, and the entire Agreement will continue
to be valid in other jurisdictions.
16. Waivers. No
failure or delay by either the Company or Consultant in exercising any right or
remedy under this Agreement will waive any provision of the Agreement, nor will
any single or partial exercise by either the Company or Consultant of any right
or remedy under this Agreement preclude either of them from otherwise or further
exercising these rights or remedies, or any other rights or remedies granted by
any law or any related document.
17. Captions. The
headings in this Agreement are for convenience only and do not affect this
Agreement’s interpretation.
18. Superseding
Effect. This Agreement supersedes all previous and contemporaneous
oral negotiations, commitments, writings, and understandings between the parties
concerning the matters in this Agreement.
19. Notices. All
notices and other communications required or permitted under this Agreement
shall be in writing and sent by registered first-class mail, postage prepaid,
and shall be effective five days after mailing to the addresses stated
below. These addresses may be changed at any time by like
notice.
In the
case of the Company:
In the
case of Consultant:
Agreed:
Crown
Financial Group, LTD.
/s/
Xxxxxxxx Xxxxx
Xxxxxxxx
Xxxxx
/s/ Xxxx Xxxxxxx
Xxxx
Xxxxxxx
EXHIBIT
A
Warrant
Schedule
Company
shall issue Crown warrant shares according to the following
schedule:
Date of
Issuance Warrant
Shares to be
issued Expiration
Date
(Fully vested upon
issuance)
11/8/
07 500,000 5/7/08
12/8/07 500,000 5/7/08
1/8/08 500,000 5/7/08
2/8/08 500,000 5/7/08
3/8/08 500,000 5/7/08
4/8/08 500,000 5/7/08
EXHIBIT
B
COMMON
STOCK WARRANT
THIS
COMMON STOCK WARRANT AND ANY SECURITIES ISSUABLE UPON THE EXERCISE OF
THIS COMMON STOCK WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE BEEN REGISTERED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
Issued:
_______________
Warrant
to Purchase _________ Shares of Common Stock
Expiration
Date: _______________
DigitalPost
Interactive, Inc. ("Company"), hereby certifies that, for value received, Crown
Financial Group (“Warrant Holder”) is entitled, on the terms set forth below, to
purchase from the Company at any time until 5:00 p.m., PCT, on the Expiration
Date, ___________________ fully paid and nonassessable shares of the Common
Stock of the Company, at a price per share of $1.20 ("Purchase
Price").
This
Warrant is being issued pursuant to the Investor Relations Agreement dated
______________, 2007 between the Company and Warrant Holder (the
"Agreement"). All capitalized terms used but not otherwise defined
herein shall have the meaning ascribed to such terms in the
Agreement.
1. Vesting;
Exercise of Warrant; Transfer of Warrant.
(a) Vesting. The
Warrant Shares vest are fully vested on the date of issuance.
(b) Exercise
of Warrant. At any time prior to 5:00 p.m. on the Expiration Date, the Vested
Shares may be exercised by Warrant Holder, in whole or in part, upon surrender
of this Warrant to the Company, together with an executed Notice of Exercise,
substantially in the form attached hereto as Exhibit 1, at the
Company's primary executive office, with payment by check to the Company of the
amount obtained by multiplying the number of shares of Common Stock with respect
to which this Warrant is being exercised by the Purchase Price.
(c) Partial
Exercise. Upon any partial exercise or conversion, the Company will issue to the
Warrant Holder a new Warrant for the number of Warrant Shares as to which this
Warrant was not exercised or converted on the same terms herein.
(d) Fractional
Shares. No fractional shares of Common Stock shall be issued upon any exercise
or conversion of this Warrant. Instead of any fractional share which would
otherwise be issuable upon exercise or conversion, the Company shall pay a cash
amount in respect of each fractional share at a price equal to an amount
calculated by multiplying such fractional share (calculated to the nearest
1/100th of a share) by the Fair Market Value of a share of Common Stock on the
date of exercise or conversion, as applicable, minus the Purchase Price. Payment
of such amount shall be made in cash or by check payable to the order of Warrant
Holder at the time of delivery of any certificate or certificates arising upon
such exercise or conversion.
(e) Taxes.
The Company will not be required to pay any tax imposed in connection with any
transfer involved in the issuance of a Warrant or a certificate for shares of
Common Stock in any name other than that of Warrant Holder hereof, and in such
case, the Company will not be required to issue or deliver any stock certificate
or Warrant until such tax is paid.
(f) Transfer
of Warrant. Transfer of this Warrant to a third party shall be effected by
execution and delivery of the Notice of Assignment attached hereto as Exhibit 2 and
surrender of this Warrant for registration of transfer of this Warrant at the
primary executive office of the Company, together with funds sufficient to pay
any applicable transfer tax. Upon receipt of the duly executed Notice of
Assignment and the necessary transfer tax funds, if any, the Company, at its
expense, shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Warrants representing the right to purchase a like
aggregate number of shares of Common Stock.
2. Registration
Rights. All common
stock underlying the warrants will have standard piggy-back registration rights
in the Company’s next applicable registration.
3. INTENTIONALLY
LEFT BLANK
4. Notices
of Record Date. In case (a) the Company takes a record of Warrant Holders of the
Common Stock for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities; (b) of any capital reorganization of the
Company, any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to another
corporation; or (c) of any voluntary dissolution, liquidation or winding-up of
the Company; then, in each such case, the Company will mail or cause to be
mailed to Warrant Holder of a Warrant at the time outstanding a notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is to take place, and time, if any is to
be fixed, as of which Warrant Holders of record of Common Stock (or such other
stock or securities at the time receivable upon the exercise or conversion of
the Warrant) will be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up, and, in the case of a reorganization,
consolidation, merger or conveyance, the fair market value of such securities or
other property as determined by the Board. Such notice shall be mailed at least
ten days prior to the date specified therein.
5. Replacement
of Warrant. Upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and (in the case of
loss, theft or destruction) upon delivery of an indemnity agreement in such
reasonable amount as the Company may determine, or (in the case of mutilation)
upon surrender and cancellation thereof, the Company at its expense, will issue
a replacement.
6. Transferability
of Warrant; No Redemption. This Warrant and all rights hereunder are freely
transferable by Warrant Holder, subject to compliance with applicable state and
federal securities laws. This Warrant shall not be redeemable by the Company, in
whole or in part, at any time.
7. Notices.
All notices, instructions and other communications given hereunder or in
connection herewith shall be sent to:
If to the
Company
to: Digital
Post Interactive, Inc.
0000
Xx Xxxxxx Xxxx, Xxxxx #000
Xxxxxx,
XX 00000
Attention:
Chief Executive Officer
Facsimile:
(000) 000-0000
|
If
to Warrant Holder to:
|
As
written on signatory page of the
Agreement
|
8. Change;
Waiver. This Warrant except by agreement may not be changed, amended or modified
in writing signed by the Company and Warrant Holder.
9. No
Rights as Warrant Holder. This Warrant does not entitle Warrant Holder to any
voting rights or other rights as Warrant Holder of the Company prior to the
exercise of this Warrant.
10. Headings.
The headings in this Warrant are for purposes of reference only and shall not be
deemed to constitute a part hereof.
11. Governing
Law. This Warrant shall be construed in accordance with and governed by the laws
of Nevada without regard to its conflicts of laws rules.
Dated:
_______________, 2007
____________________________
Xxxxxxx
Xxxxxxx
Chief
Executive Officer
EXHIBIT
1
NOTICE
OF EXERCISE OF WARRANT
1. The
undersigned hereby elects to receive __________ shares of Common Stock of
DigitalPost Interactive, Inc., pursuant to the terms of the attached
Warrant.
2. Exercise. The
undersigned tenders herewith payment in full for the purchase price of the
shares being purchased, together with all applicable transfer taxes, if
any.
3. Please
issue a certificate or certificates representing said shares of Common Stock in
the name of the undersigned or in such other name as is specified
below:
_________________________________
(Name)
_________________________________
_________________________________
(Address)
4. The
undersigned represents that the aforesaid shares of Common Stock are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such
shares.
All
capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to such terms in the Warrant.
_________________________________
Name
of Warrant Holder
_________________________________
Signature
of Authorized Signatory
_________________________________
Print
Name and Title
_________________________________
Date
EXHIBIT
2
WARRANT
ASSIGNMENT FORM
(To be
executed only upon the assignment of the within Warrant)
FOR
VALUE RECEIVED, the undersigned registered Warrant Holder of the within Warrant
hereby sells, assigns and transfers unto _____________________, whose address is
___________________ all of the rights of the undersigned under the within
Warrant, with respect to shares of Common Stock (as defined within the Warrant)
of DigitalPost Interactive, Inc., and, if such shares of Common Stock shall not
include all the shares of Common Stock issuable as provided in the within
Warrant, that a new Warrant of like tenor for the number of shares of Common
Stock not being transferred hereunder be issued in the name of and delivered to
the undersigned, and does hereby irrevocably constitute and appoint
_________________ attorney to register such transfer on the books of DigitalPost
Interactive, Inc. maintained for that purpose, with full power of substitution
in the premises.
Dated:_____________
By:________________________________
(Signature
of Registered Warrant Holder)
Title:_____________________________
NOTICE: The
signature to this Notice of Assignment must correspond
with
the name upon the face of the within Warrant in every
particular,
without alteration or enlargement or any
change
whatever.
