Exhibit 10.14
RELATIONSERVE MEDIA, INC.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
October 31, 2005
LB I Group Inc.
c/x Xxxxxx Brothers, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx XX 00000
Att: Xxxx X. Xxxxxxx
Re: Securities Purchase Agreement dated as of October 3l, 2005
Dear Xxxx:
Reference is made to the Securities Purchase Agreement (the "PURCHASE
AGREEMENT"), dated as of October 3l, 2005, among SendTec Acquisition Corp., a
Delaware corporation ("STAC") RelationServe Media, Inc., a Delaware corporation
(the "COMPANY"), and each purchaser identified on the signature pages thereto
(each, including its successors and assigns, a "PURCHASER" and collectively the
"PURCHASERS") and Christiana Corporate Services, Inc., a Delaware corporation,
in its capacity as administrative agent for the Purchasers (together with its
successors and assigns in such capacity, the "Agent"), and the transactions
contemplated thereby. Capitalized terms used in and not otherwise defined in
this letter shall have the meanings ascribed to them in the Purchase Agreement.
This letter confirms our agreement that from and after the Consolidation Date
until the Debentures are no longer outstanding, whether because of payment in
full or conversion of the Debentures into shares of Company Common Stock:
1. The Company's board of directors shall not exceed six members. If
requested by you, the Company shall use its best efforts to cause all
then members of the board of directors to resign other than Xxxxxx
Xxxxxx Xxxxx and to cause the election of Xxxxxxx X. Brausser and Xxxx
Xxxxxxx as members of the board of directors. If requested by you, the
Company shall use its best efforts to prevent the election of any
member of the board of directors to which you reasonably and timely
object.
2. You shall have the right but not the obligation to designate a member
of the board of directors and the Company shall use its best efforts to
cause such person's election to the board of directors. You shall also
have the right but not the obligation to designate a representative to
attend all meetings of the Board of Directors in a nonvoting observer
capacity and, in this respect, the Company shall give such
representative copies of all notices, minutes, consents and all other
materials that it provides to the directors.
3. At all times, the Company's independent registered public accounting firm
shall be reasonably acceptable to you.
The Company will fully cooperate with you in any due diligence investigation
reasonably requested by you with respect to the offer and sale of the Securities
(as defined in the Purchase Agreement) and will furnish you with such
information, including financial statements, with respect to the business,
operations, assets, liabilities, financial condition and prospects of the
Company and STAC as you may reasonably request. You may rely upon the accuracy
and completeness of all such information and the Company acknowledges that you
have not been retained to independently verify any of such information. The
Company will be solely responsible for the contents of its offering materials
and any and all other written or oral communications provided by or on behalf of
the Company to any actual or prospective purchaser of the Securities, and the
Company represents and warrants that such offering materials and such other
communications will not, as of the date of the offer or sale of the Securities,
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. The Company's filings with the SEC will be deemed offering
materials. The Company acknowledges and agrees that you have not furnished any
information for the purpose of inclusion in any such offering materials.
Without your prior written consent, the Company will not publicly refer to you
or to Xxxxxx Brothers Inc. in connection with the transactions contemplated by
this Agreement and the Purchase Agreement except to the extent and after
consultation with you and your counsel, the Company reasonably deems such
disclosure to be required under applicable law.
In addition to any other indemnification rights that you may have, connection
with the transactions contemplated hereby and by the Purchase Agreement, the
Company agrees to indemnify you in accordance with the indemnification
provisions set forth as EXHIBIT A hereto and to comply with the other provisions
set forth in EXHIBIT A hereto.
Very truly yours,
RELATIONSERVE MEDIA, INC.
By: /s/ Xxxxxxxx Xxxx
-----------------
Name: Xxxxxxxx Xxxx
Title: President
AGREED AND ACCEPTED:
XXXXXX BROTHERS, INC. for itself
and for LB I GROUP INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: SVP
EXHIBIT A
The Company shall indemnify LB I Group Inc. and Xxxxxx Brothers Inc.
(together, "Xxxxxx Brothers") and hold each of them harmless against any and all
losses, claims, damages or liabilities to which they may become subject arising
in any manner out of or in connection with the services or matters that are the
subject of this Agreement and the Purchase Agreement (including, without
limitation, the offer and sale of the Securities), and shall reimburse either of
them promptly for any legal or other expenses reasonably incurred by it in
connection with investigating, preparing to defend or defending, or providing
evidence in or preparing to serve or serving as a witness with respect to, any
lawsuits, investigations, claims or other proceedings arising in any manner out
of or in connection with the services or matters that are the subject of this
Agreement and the Purchase Agreement (including, without limitation, in
connection with the enforcement of this Agreement and the Purchase Agreement and
the indemnification obligations set forth herein and therein); PROVIDED,
HOWEVER, that the Company shall not be liable in respect of any loss, claim,
damage, liability or expense to the extent that it is finally judicially
determined that such loss, claim, damage, liability or expense resulted directly
from the gross negligence or willful misconduct of Xxxxxx Brothers in the
performance of any services hereunder.
The Company agrees that the indemnification and reimbursement commitments
set forth herein shall apply whether or not Xxxxxx Brothers is a formal party to
any such lawsuits, claims or other proceedings and that such commitments shall
extend upon the terms set forth herein to any controlling person, affiliate,
director, officer, employee or agent of Xxxxxx Brothers (each, with Xxxxxx
Brothers, an "Indemnified Person"). The Company further agrees that, without
Xxxxxx Brothers' prior written consent, which consent will not be unreasonably
withheld, it will not enter into any settlement of a lawsuit, claim or other
proceeding arising out of the transactions contemplated by this agreement unless
such settlement includes an explicit and unconditional release from the party
bringing such lawsuit, claim or other proceeding of all Indemnified Persons.
The Company further agrees that the Indemnified Persons are entitled to
retain one separate counsel of their choice in connection with any of the
matters in respect of which indemnification, reimbursement or contribution may
be sought under this agreement.
The Company and Xxxxxx Brothers agree that if any indemnification or
reimbursement sought hereunder is judicially determined to be unavailable for a
reason other than the gross negligence or willful misconduct of Xxxxxx Brothers,
then, whether or not either of them is the Indemnified Person, the Company, on
the one hand, and Xxxxxx Brothers, on the other, shall contribute to the losses,
claims, damages, liabilities and expenses for which such indemnification or
reimbursement is held unavailable (i) in such proportion as is appropriate to
reflect the relative benefits to the Company on the one hand, and Xxxxxx
Brothers on the other hand, in connection with the transactions to which such
indemnification or reimbursement relates, or (ii) if the allocation provided by
clause (i) above is judicially determined not to be permitted, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative faults of the Company, on the one hand,
and Xxxxxx Brothers, on the other hand, as well as any other equitable
considerations; PROVIDED, HOWEVER, that in no event shall the amount to be
contributed by Xxxxxx Brothers hereunder exceed the amount of the fees actually
received by Xxxxxx Brothers in connection with the transactions contemplated
hereby and by the Purchase Agreement.
Nothing in this Agreement, expressed or implied, is intended to confer or
does confer on any person or entity other than the parties hereto or their
respective successors and assigns, and to the extent expressly set forth herein,
the Indemnified Persons, any rights or remedies under or by reason of this
Agreement or as a result of the services to be rendered by Xxxxxx Brothers
hereunder. The parties acknowledge that Xxxxxx Brothers is not acting in a
fiduciary capacity with respect to the Company and that Xxxxxx Brothers is not
assuming any duties or obligations other than those expressly set forth in this
Agreement. The Company further agrees that neither Xxxxxx Brothers nor any of
its controlling persons, affiliates, directors, officers, employees or
consultants shall have any liability to the Company or any person asserting
claims on behalf of or in right of the Company for any losses, claims, damages,
liabilities or expenses arising out of or relating to this Agreement or the
services to be rendered by Xxxxxx Brothers hereunder, unless it is finally
judicially determined that such losses, claims, damages, liabilities or expenses
resulted directly from the gross negligence or willful misconduct of Xxxxxx
Brothers.
