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Exhibit
10.4
VOTING
AGREEMENT
VOTING AGREEMENT ,
dated as of March 26, 2008 (this “Agreement”),
between SendTec, Inc., a Delaware corporation
(“SendTec”), the management stockholders of SendTec
identified on the attached Exhibit A (“Management
Stockholders”) and the debenture stockholders of SendTec
identified on the attached Exhibit B (“Debenture
Stockholders”). The Management Stockholders and the Debenture
Stockholders are sometimes hereafter collectively referred to as
the “Stockholders.”
Recitals
SendTec, SendTec Acquisition
Corp., a Delaware corporation, RelationServe Access, Inc., a
Delaware corporation, Friendsand, Inc., a Delaware corporation and
the holders of the Original Debentures propose to enter into a
Recapitalization Agreement dated as of the date of this Agreement
(as the same may be amended from time to time, the
“Recapitalization Agreement”) in order to provide for
the exchange of the Original Debentures into Series B Preferred
Stock of SendTec, subject to the terms and conditions set forth in
the Recapitalization Agreement, and in order to provide for certain
other agreements among such parties. Capitalized terms used but not
defined in this Agreement shall have the meanings ascribed to them
in the Recapitalization Agreement.
As of the date of this
Agreement, the Stockholders own beneficially or of record or have
the power to vote, or direct the vote of, the respective number of
shares of (i) common stock, par value $0.001 per share, of
SendTec (the “Common Stock”) and/or
(ii) Series B Convertible Preferred Stock, par value
$0.001 per share, of SendTec (the “Preferred Stock”),
as set forth opposite such respective Stockholder’s name on
Exhibit A or Exhibit B, as applicable, to
this Agreement (all such Common Stock and Preferred Stock and any
shares of Common Stock or Preferred Stock of which ownership of
record or beneficially or the power to vote is hereafter acquired
by a Stockholder prior to the termination of this Agreement being
referred to in this Agreement as the
“Shares”).
As a condition of the
Recapitalization Agreement, SendTec and the Stockholders have
mutually agreed to enter into this Agreement.
Terms
NOW , THEREFORE
, in consideration of the premises and of the mutual agreements and
covenants set forth in this Agreement and in the Recapitalization
Agreement and for other good and valuable consideration, the
receipt and adequacy of which are acknowledged, and intending to be
legally bound by this Agreement, the parties to this Agreement
agree as follows:
ARTICLE I
VOTING OF
SHARES
SECTION 1.01
(a) For a period commencing
on the date of this Agreement and terminating on the Effective
Date, each Management Stockholder, solely in such Management
Stockholder’s capacity as a stockholder of SendTec, agrees to
vote (or cause to be voted) all of such Management
Stockholder’s Shares at any meeting of the stockholders of
SendTec or any adjournment thereof, and in any action by written
consent of the stockholders of SendTec, in favor of consummation of
the transactions contemplated pursuant to the Special Meeting of
the Stockholders of SendTec (“Special Meeting”)
approving the Stockholder Matters.
(b) For so long as
(i) any Debentures, (ii) any Residual Debentures or
(iii) at least twenty-five percent (25%) of the aggregate
Stated Value of the Preferred Shares are outstanding, and in any
event for a period no less than three (3) years following the
First Closing Date, each Management Stockholder and Debenture
Stockholder, solely in such Stockholder’s capacity as a
stockholder of SendTec, agrees to vote (or cause to be voted) all
of such Stockholder’s Shares at any meeting of the
stockholders of SendTec or any adjournment thereof, and in any
action by written consent of the stockholders of SendTec, in favor
of: (A) election of the persons identified on (or pursuant to
the terms of) the attached Exhibit C , Column 1
(each a “Nominee”), or for such Nominee’s
replacement as determined pursuant to Section 1.01(c) below,
to the Board of Directors of SendTec; and (B) to the extent a
Debenture Stockholder is entitled to vote at the Special Meeting,
approving the Stockholder Matters.
(c) Notwithstanding the terms
of Section 1.01(b), the Stockholders shall not be obligated to
vote in favor of any Nominee if Good Cause (as defined below)
exists regarding a Nominee. If Good Cause exists regarding a
Nominee, the Stockholders agree to vote (or cause to be voted) all
of such Stockholder’s Shares in favor of election of a
Replacement Nominee (as defined below) selected by the appropriate
Stockholder identified on the attached Exhibit C, Column 2
.
(d) The term “ Good
Cause ” means:
(i) the Nominee’s
inability to perform his duties hereunder due to physical or mental
Disability (as defined below);
(ii) the Nominee’s
indictment for, conviction of, or the entering of a plea of nolo
contender with respect to, a felony;
(iii) the Nominee’s
abuse of illegal controlled substances;
(iv) the Nominee’s acts
of moral turpitude or fraud, his embezzlement of funds or other
assets of SendTec or his acceptance of a bribe or
kickback;
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(v) the failure, refusal or
neglect of the Nominee to render services to SendTec as a member of
the Board of Directors, or gross negligence of the Nominee in the
performance of such duties, which is not cured within seven days
after written notice of same to the Nominee identifying such
failure, refusal or neglect of services in question; or
(vi) failure of the Nominee
to obey the reasonable and lawful orders and policies of the Board
of Directors that are consistent with the provisions of this
Agreement, which is not cured within seven days after written
notice of same to the Nominee identifying such failure.
(e) The term “
Disability ” means the Nominee’s inability to
perform his duties for a period of 90 days or more, consecutive or
non-consecutive, in any twelve-month period, due to mental or
physical disability or incapacity, as determined by a physician
selected by SendTec and reasonably acceptable to the Nominee or to
the Nominee’s legal representative, such agreement as to
acceptability not to be unreasonably withheld or delayed. Any
refusal by the Nominee to submit to a medical examination for the
purpose of determining the existence of a Disability shall
constitute conclusive evidence of the Nominee’s
Disability.
(f) The term “
Replacement Nominee ” means a person nominated for
election by the appropriate Stockholders identified on the attached
Exhibit C, Column 2 in replacement of a Nominee that is not
eligible for election to the SendTec Board of Directors for Good
Cause.
SECTION 1.02 Grant of
Irrevocable Proxy . Concurrently with the execution of this
Agreement, each Management Stockholder agrees to deliver to SendTec
a proxy with respect to such Stockholder’s Shares in
substantially the form attached to this Agreement as
Exhibit D and each Debenture Stockholder agrees to
deliver to SendTec a proxy with respect to such Stockholder’s
Shares in substantially the form attached to this Agreement as
Exhibit E (the “Proxy” or “Proxies”
as applicable), which shall be coupled with an interest and are
irrevocable to the fullest extent permissible by law.
SECTION 1.03
Termination . This Agreement, the Proxies granted under this
Agreement and the obligations of the Stockholders pursuant to this
Agreement shall terminate upon the date of the termination of the
Recapitalization Agreement pursuant to Article V thereof;
provided , however , that the termination of this
Agreement shall not relieve any Stockholder from any liability for
any previous breach of this Agreement.
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