Exhibit 10.7
AGREEMENT
This agreement (this "Agreement") is made as of the 10th day of May,
2001 by and among Cross Media Marketing Corporation (f/k/a Symposium
Corporation) ("Cross Media Marketing" or the "Company"), a Delaware corporation,
with its principal office in New York, New York, and Xxxxxxx X. Xxxxxxxx
("Xxxxxxxx") and RLP Holdings, L.P. ("RLP"), a Georgia limited partnership, both
of Atlanta, Georgia.
In consideration of ten dollars ($10) and other good and valuable
consideration the parties hereby agree as follows:
1. Pursuant to that certain Stock Purchase Agreement, dated as of June
9, 1999 (the "Purchase Agreement") between Cross Media Marketing and Xxxxxxxx,
Xxxxxxxx purchased from Cross Media Marketing 2,500,000 shares (the "Shares") of
the Company's common stock, par value $0.001 (the "Common Stock"), for a total
purchase price of $2,500,000, which purchase price was paid through Xxxxxxxx'x
issuance of a $2,500,000 principal amount Non-Negotiable Secured Promissory Note
(as amended, the "Note"). On January 28, 2000, Xxxxxxxx paid $2,500 of the
outstanding principal amount of the Note, leaving an unpaid balance of
$2,497,500.
2. Pursuant to a Stock and Partnership Interest Pledge Agreement, dated
as of June 9, 1999 between Cross Media Marketing and Xxxxxxxx, as amended by
Amendment No. 1 thereto, dated as of January 28, 2000 (as so amended, the
"Pledge Agreement"), Xxxxxxxx pledged 1,900,000 shares of Common Stock (the
"Pledged Shares") and all proceeds therefrom to Cross Media Marketing to secure
payment of the Note.
3. Pursuant to a Registration Rights Agreement, dated as of January 28,
2000, between Cross Media Marketing and Xxxxxxxx, as amended pursuant to an
agreement dated as of November 1, 2000 among Cross Media Marketing, Xxxxxxxx,
RLP and AmeriNet, Inc. (as so amended, the "Registration Rights Agreement"),
Cross Media Marketing granted Xxxxxxxx the right (the "Put Right"), exercisable
between January 15, 2001 and the 180th day following the effective date of the
registration statement filed by the Company pursuant to Section 3(a) thereof
(the "Put Period"), to require the Company to purchase from Xxxxxxxx, on one
occasion, up to 600,000 shares of the Common Stock at a purchase price of $3.00
per share.
Indemnity
4. Xxxxxxxx represents and warrants to Cross Media Marketing that: (a)
the Shares are evidenced by Stock Certificate No. 02096 (the "Stock
Certificate"); (b) Xxxxxxxx is the sole legal, beneficial and unconditional
owner of the Shares, entitled to full and exclusive possession of the Stock
Certificate; (c) despite a diligent search through the files and records of
Xxxxxxxx and his counsel, it appears that the Stock Certificate has been lost or
destroyed; (d) Xxxxxxxx has not sold, endorsed, assigned, transferred,
hypothecated, pledged or otherwise transferred or disposed of the Stock
Certificate and is entitled to the full and exclusive possession and benefit of
said Stock Certificate; and (e) no person, firm or corporation other than
Xxxxxxxx has any right, title, claim, equity, or interest in, to or with respect
to the Stock Certificate or any proceeds of the Stock Certificate. Xxxxxxxx
shall indemnify and hold Cross Media Marketing, its successors and assigns,
harmless from and against any and all demands, claims, actions or causes of
action, liabilities, losses or damages of any nature whatsoever, that may at any
time be made or incurred by reason of the fact that the Stock Certificate may be
in, or may hereafter come into, the possession of any person, firm or
corporation, or as a result of the fact that the original Stock Certificate may
not have been destroyed.
Exercise of Put Option; Reduction of Note
5. Xxxxxxxx hereby exercises the Put Right in full, to sell 600,000
shares of Common Stock to Cross Media Marketing for an aggregate purchase price
of $1,800,000 (the "Purchase Price").
6. Xxxxxxxx and Cross Media Marketing hereby agree that the Purchase
Price shall be paid by reduction of the indebtedness evidenced by the Note.
Concurrently herewith, Cross Media Marketing has tendered
the Note to Xxxxxxxx for cancellation against issuance and delivery by Xxxxxxxx
to Cross Media Marketing of an Amended and Restated Note, in the form attached
hereto as Exhibit A, reflecting the reduction of the outstanding principal
amount thereof to $697,500, which amount is due and payable on January 14, 2010
(the "Amended and Restated Note").
7. Concurrently herewith, Cross Media Marketing has instructed its
transfer agent to issue and deliver to Xxxxxxxx a stock certificate, registered
in Xxxxxxxx'x name, representing 1,368,000 shares of Common Stock, free and
clear of the security interest granted to Cross Media Marketing pursuant to the
Pledge Agreement. Cross Media Marketing has also instructed its transfer agent
to issue a stock certificate, registered in Xxxxxxxx'x name, representing
532,000 shares of Common Stock, which shall be pledged to Cross Media Marketing
and subject to a security interest in its favor, in accordance with the Pledge
Agreement. Concurrently herewith, Xxxxxxxx has delivered to Cross Media
Marketing an executed blank Stock Power, with medallion signature guarantees,
covering the Pledged Collateral. The definition of "Pledged Shares" in the
Pledge Agreement is hereby further amended to mean 532,000 shares of Common
Stock.
8. Cross Media Marketing, Xxxxxxxx and RLP agree that the Registrations
Rights Agreement is hereby amended and modified as follows:
a) The definition of "Demand Registrable Stock" is amended to read in
its entirety as follows: "Demand Registrable Stock" shall mean 1,900,000 shares
of the Securities owned by Purchaser and 1,000,000 shares of the Securities
owned by RLP."
b) Section 3(a) is amended to read in its entirety as follows: "Cross
Media Marketing as soon as reasonably practical shall file with the SEC a
registration statement including the 1,900,000 shares of Common Stock owned by
Xxxxxxxx and the 1,000,000 shares of Common Stock owned by RLP. Purchaser and
RLP agree that, notwithstanding the registration of the Demand Registrable Stock
owned by them, they will not, for a period of one year from the effective date
of said registration statement (the "Restricted Period"), sell any more shares
of Demand Registrable Stock, in the aggregate, than Xxxxxxxx would be entitled
to sell during the Restricted Period in compliance with Rule 144(e)(1) under the
Act). Notwithstanding the foregoing, such limitation on the sale of Demand
Registrable Stock during the Restricted Period shall not apply to any
organization exempt under Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the "Code"), or charitable remainder trust within the meaning
of Section 664 of the Code to which Xxxxxxxx or RLP have donated Demand
Registrable Stock."
9. This Agreement will be governed by the laws of the State of New York
applicable to contracts made and to be performed entirely within such State.
This Agreement may be executed in counterparts and by the parties hereto in
separate counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement. This Agreement
supersedes any prior understanding or agreement, written or oral, between or
among the parties hereto (or any of them) relating to the subject matter hereof.
However, except as amended hereby, the Registration Rights Agreement and the
Stock and Partnership Interest Pledge Agreement, as amended by Amendment No. 1
and Amendment No. 2 thereto, shall remain in full force and effect as executed
and delivered by the parties.
10. IN WITNESS WHEREOF the parties have duly executed this Agreement as
of the day and year first above written.
CROSS MEDIA MARKETING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: CEO
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
RLP HOLDINGS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title:
Exhibit A
AMENDED AND RESTATED
NON-NEGOTIABLE SECURED PROMISSORY NOTE
$697,500 May 10, 2001
FOR VALUE RECEIVED, Xxxxxxx X. Xxxxxxxx (the "Maker"), hereby
promises to pay to the order of Cross Media Marketing Corporation (f/k/a
Symposium Corporation), a Delaware corporation ("Cross Media Marketing"), the
principal sum of SIX HUNDRED NINETY-SEVEN THOUSAND FIVE HUNDRED DOLLARS
($697,500), due and payable on January 14, 2010. In addition, concurrently with
any sale of Common Stock of Cross Media Marketing subsequent to the date of this
Note, Maker shall pay to Cross Media Marketing one-third of the net proceeds
from such sale to reduce the amount outstanding on this Note; provided, however,
that the aggregate of all such payments in connection with sales of Common Stock
by Maker shall not exceed $697,500 plus accrued interest, if any.
If any payment on this Note is not made when due, such payment
and any outstanding amount on this Note shall thereafter bear interest at a rate
of 10% per annum until the amount not paid and accrued and unpaid interest is
paid in full.
All payments on this Note shall be made in such currency of the
United States as at the time of payment shall be legal tender for the payment of
public and private debts.
This Note evidences indebtedness incurred pursuant to the terms
of that certain Stock Purchase Agreement of June 9, 1999 between Maker and Cross
Media Marketing (the "Purchase Agreement"). Cross Media Marketing and the Maker
also entered into a Stock and Partnership Interest Pledge Agreement dated June
9, 1999, as amended on January 28, 2000 and as subsequently amended on even date
hereof (as so amended, the "Pledge Agreement") providing, among other things,
for the securing of this Note by a pledge of the Pledged Collateral (as defined
in the Pledge Agreement). To the extent applicable, the provisions of the
Purchase Agreement and/or the Pledge Agreement (including, without limitation,
the provisions of Section 6.1 of the Purchase Agreement) are incorporated herein
by this reference.
If any of the following events (each, an "Event of Default")
shall occur:
(a) the Maker shall default in the payment of any part of the
principal or interest on this Note when the same shall become due and payable,
whether at maturity, by acceleration or otherwise.
(b) the Maker shall (i) become insolvent or be unable, or admit
in writing its inability, to pay its debts as they mature; (ii) make a general
assignment for the benefit of creditors; (iii) be adjudicated as bankrupt or
insolvent or file a voluntary petition in bankruptcy; (iv) file a petition or an
answer seeking an arrangement with creditors to take advantage of any insolvency
law; or (v) file an answer admitting to the material obligations or consent to,
or default in answering, or fail to have dismissed within 60 days after the
filing thereof, a petition filed against it in any bankruptcy or insolvency
proceeding; or
(c) any breach of the Maker's obligations under the Pledge
Agreement shall have occurred and be continuing or any representation or
warranty made under Section 4.3 of the Pledge Agreement shall be false in any
material respect,
then, the holder of this Note may at any time by written notice
to the Maker, declare the entire unpaid principal of and the interest accrued on
this Note through the date of such Event of Default to be forth with due and
payable, without other notices or demands of any kind, all of which are hereby
waived by the Maker; provided that if an Event of Default occurs pursuant to
paragraph (b) above, the entire unpaid principal and the interest accrued on
this Note shall be come automatically due and payable without any notice, demand
or other action by the holder.
The Maker agrees to pay to the holder hereof all reasonable
expenses incurred by such holder, including reasonable attorneys' fees, in
enforcing and collecting this Note.
The Maker hereby forever waives presentment, demand, presentment
for payment, protest, notice of protest, notice of dishonor of this Note and all
other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note.
This Note shall be paid without deduction by reason of any
set-off, defense or counterclaim of the Maker.
This Note shall be governed by and construed in accordance with
the laws of the State of Georgia, without giving effect to conflicts of law
principles thereof.
This Note is non-negotiable and shall not be transferred or
assigned by Cross Media Marketing except by operation of law or as provided in
the Purchase Agreement. Any attempted assignment of this Note by Cross Media
Marketing except by operation of law or as provided in the Purchase Agreement
shall be deemed void. This Note amends and replaces that certain Amended
Non-Negotiable Secured Promissory Note dated January 28, 2000 executed by Maker
in favor of Holder.
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
