Securities Exchange Agreement between RelationServe Media, Inc. and STAC Management (February 3, 2006)

 Exhibit 10.8 SECURITIES EXCHANGE AGREEMENT THIS SECURITIES EXCHANGE AGREEMENT (the "AGREEMENT"), dated as of February 3rd, 2006, is entered into by and among RelationServe Media, Inc., a Delaware corporation (the "Company") and each of the other parties identified on the signature pages hereto ("STAC Management"). RECITALS: WHEREAS, pursuant to the terms and conditions of a Securities Purchase Agreement (the "Securities Purchase Agreement") dated as of October 31, 2005, among SendTec Acquisition Corp., a Delaware corporation ("STAC"), the Company, 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, as agent for the Purchasers, various transactions which shall constitute the Consolidation (as such term is defined in the Securities Purchase Agreement) are occurring on the date hereof with the result being that STAC will become a wholly-owned subsidiary of the Company; WHEREAS, among the transactions which are part of the Consolidation are (i) the shares of Common Stock, par value $0.001 per share (the "STAC Common Stock") held by STAC Management as set forth on Schedule A will be exchanged for shares of common stock, par value $0.001 per share (the "Company Common Stock") as set forth on Schedule A. In consideration of the premises and the mutual covenants and the agreements herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. EXCHANGE. The STAC Common Stock specified on Schedule A will be exchanged for the Company Common Stock specified on Schedule A. Certain of the STAC Common Stock specified on Schedule A has been held in escrow by Olshan Grundman Frome Rosenzweig & Wolosky LLP as escrow agent (the "Escrow Agent") and the Company Common Stock exchanged for such STAC Common Stock will also be held in escrow by the Escrow Agent. To effectuate the foregoing transactions, (a) each of the members of the STAC Management shall deliver to the Company the certificate(s) representing the STAC Common Stock held by them, together with separate stock powers duly endorsed in blank, and (b) the Company shall deliver to the members of the STAC Management certificates representing their Company Common Stock. In addition, to effectuate the escrow of the Company Common Stock to be received by STAC Management, each of STAC, certain of the members of STAC Management and the Company will provide notice to the Escrow Agent that certain of the shares of Company Common Stock will become the Escrow Property pursuant to the terms of the Escrow Agreement dated as of October 31, 2005 by and between the members of the STAC Management, STAC, the Company and the Escrow Agent and such shares of Company Common Stock will be delivered to the Escrow Agent. 2. RESTRICTED STOCK. Each of the members of the STAC Management understands (a) that the Company Common Stock to be received hereunder are characterized as "restricted securities" under the federal securities laws, and that under such laws and applicable regulations these shares may not be sold or  otherwise disposed of without first being registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"), or pursuant to an exemption therefrom, and (b) that the certificates representing the Company Common Stock shall bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A WRITTEN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM AND SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933." 3. COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the members of the STAC Management that: (a) The Company has the full power and authority to execute, deliver and perform this Agreement and each other agreement, instrument and document to be executed and delivered by or on behalf of the Company in connection herewith. (b) This Agreement, and each other agreement, instrument and document to be executed and delivered by or on behalf of the Company in connection herewith, has been duly authorized, executed and delivered by the Company and constitutes the valid, binding and enforceable obligation of the Company, enforceable in accordance with its terms. 2  (c) Upon the consummation of the transactions contemplated hereby, the shares of Company Common Stock to be issued to each of the members of the STAC Management will be duly authorized, validly issued, fully paid and nonassessable. 4. REPRESENTATIONS AND WARRANTIES OF THE STAC MANAGEMENT. Each member of the STAC Management, severally, but not jointly, represents and warrants to the Company that: (a) Such member of the STAC Management is the record and beneficial owner of the STAC Common Stock held by him as specified on Schedule A, free and clear of any security interests, liens, taxes, charges, restrictions, encumbrances or adverse claims whatsoever other than pursuant to the Escrow Agreement and has the full right, capacity, power and authority to exchange their STAC Common Stock for Company Common Stock as contemplated hereby. (b) Such member of the STAC Management possesses all requisite power, authority and capacity to execute, deliver and perform this Agreement and each other agreement, instrument and document to be executed and delivered by or on behalf of such member of the STAC Management in connection herewith (c) This Agreement, and each other agreement, instrument and document to be executed and delivered by or on behalf of such member of the STAC Management in connection herewith, has been duly authorized, executed and delivered by such member of the STAC Management and constitutes the valid, binding and enforceable obligations of such member of the STAC Management, enforceable in accordance with its respective terms. (d) Such member of the STAC Management is acquiring the Company Common Stock for investment purposes only and solely for his own account and not with a view to, or for resale in connection with, the distribution or disposition thereof, except for such distributions or dispositions which are effected in compliance with the Securities Act; (e) Such member of the STAC Management understands that the shares of Company Common Stock have not been registered under the Securities Act or under any state securities or "blue sky" laws; (f) Such member of the STAC Management will not directly or indirectly offer, sell, transfer, assign, pledge, hypothecate or otherwise dispose of, or solicit any offers to purchase or otherwise acquire or take a pledge of, any of the Company Common Stock, except in accordance with the Securities Act and all applicable state securities or "blue sky" laws; (g) The financial situation of such member of the STAC Management is such that he can afford to bear the economic risk of holding the shares of Company Common Stock for an indefinite period of time and suffer a complete loss of his investment in the shares of Company Common Stock; (h) Such member of the STAC Management has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks relating to his investment in the shares of Company Common Stock; (i) Such member of the STAC Management acknowledges that he must continue to bear the economic risk of his investment in the Company Common Stock until the Company Common Stock is subsequently registered under the Securities Act or an exemption from such registration is available; (j) Such member of the STAC Management understands that the shares of Company Common Stock represent a speculative investment which involves a high degree of risk of loss of his investment therein; (k) In making his decision to receive the Company Common Stock under this Agreement, such member of the STAC Management has relied upon independent investigations made by him and, to the extent believed by him to be appropriate, his representatives, including his own professional, tax and other advisors; and (l) All information that such member of the STAC Management has provided to the Company concerning himself and his financial position is true, complete and correct as of the date of this Agreement. 3  5. SURVIVAL. The representations and warranties set forth in this Agreement shall specifically survive the consummation of the Consolidation. 6. TAXES. It is the intention of the parties that the transactions contemplated by this Agreement constitute a tax-free exchange pursuant to Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. Notwithstanding the foregoing, the Company and each member of the STAC Management hereby expressly agree that any tax consequences resulting from the transactions contemplated hereby will be the respective sole obligation of the affected party. Neither party hereto or any representative of either party makes or has made any representation with respect to the tax consequences of the transactions contemplated hereby. 7. REGISTRATION. The Company hereby grants each member of STAC Management unlimited and customary "piggyback" registration rights with respect to the Company Common Stock they are receiving in connection with this Agreement. Such piggyback registration rights provision will survive until such time as the Company Common Stock may be sold without volume restrictions pursuant to Rule 144(k) of the Securities Act of 1933, as amended. In addition, the Company is obligated to file a Registration Statement on or before forty-five days after the Consolidation (the "Required Registration") pursuant to a Registration Rights Agreement it is entering into on the date of the Consolidation (as such term is defined in the Securities Purchase Agreement) 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 Exchange Committee on November 4, 2005. The Company hereby undertakes and agrees to register the resale of all of the shares of the Company Common Stock that each of the members of STAC Management is receiving in connection with this Agreement in the Required Registration. 8. RELEASE. Each member of the STAC Management hereby knowingly, freely and voluntarily waives his rights and fully releases and discharges the Company, its affiliates, successors and assigns, and all of its current and former officers, directors, agents and employees from any and all suits, legal actions, or claims of any nature, whether known or unknown, which he had, has or may have arising from the valuation, pricing and calculation of the consideration received in exchange for the STAC Common Stock, that could be asserted by each member of the STAC Management or by their respective successors, permitted assigns or representatives. 9. TERMINATION. This Agreement shall terminate if and when the Securities Purchase Agreement is terminated for any reason and, upon such termination, the parties hereto shall cease to have any rights or obligations hereunder, and this Agreement shall be null and void and of no further force or effect. 10. MISCELLANEOUS. This Agreement (a) represents the entire agreement of, and supersedes all prior agreements and understandings among, the parties hereto with respect to the subject hereof, (b) shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and assigns, (c) may be amended only by a writing signed by the parties hereto, (d) shall be governed by the internal laws of the State of New York and (e) may be executed in any number of counterparts each of which shall constitute an original and all of which shall constitute one and the same agreement and photostatic or facsimile copies of fully-executed counterparts of this Agreement shall be given the same effect as originals. 4  IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day, month and year first written above. RELATIONSERVE MEDIA INC. By:/s/ --------------------------------- Name: Shawn McNamara Title: Chief Executive Officer /s/ ------------------------------------ Paul Soltoff /s/ ------------------------------------ Eric Obeck /s/ ------------------------------------ Donald Gould /s/ ------------------------------------ Harry Greene /s/ ------------------------------------ Irvine Brechner, as a tenant by the entirety /s/ ------------------------------------ Nadine Brechner, as a tenant by the entirety /s/ ------------------------------------ Thomas Allison /s/ ------------------------------------ Steven Morvay SIGNATURE PAGE TO SECURITIES EXCHANGE AGREEMENT