Non-Competition and Non-Solicitation Agreement between RelationServe Media, Inc. and Sellers (Scott Hirsch, Danielle Karp, BTVC, McCall & Estes Advertising, Inc.)

 Exhibit 10.10 NON-COMPETITION AND NON-SOLICITATION AGREEMENT THIS NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") dated as of February 3rd, 2006, is by and between RelationServe Media, Inc. (the "Company"), Scott Hirsch ("Hirsch"), Danielle Karp ("Karp"), Boston Technology Ventures Corporation ("BTVC") and McCall & Estes Advertising, Inc. ("McCall" and together with Hirsch, Karp and BTVC, the "Sellers"). W I T N E S S E T H: WHEREAS, the Company is engaged in the development, sales and support of online and offline direct-response marketing services (the "Company's Business"); WHEREAS, the Company is a party to that certain securities purchase agreement (the "Purchase Agreement") dated as of October 31, 2005, among the Company, SendTec Acquisition Corp., a Delaware corporation, each purchaser identified on the signature pages thereto (collectively the "Purchasers") and Christiana Corporate Services, Inc., a Delaware corporation, in its capacity as administrative agent for the Purchasers (the "Agent"); WHEREAS, Article IV, Section 4.11(a)(i)(4) of the Purchase Agreement provides that the Company must deliver to the Agent evidence reasonably satisfactory to the Required Purchasers (as defined in the Purchase Agreement) that neither Hirsch nor any Hirsch family members or affiliates own any equity or other interest in the Company and that Hirsch shall have given the Company a general release of all claims and entered into non-competition and non-solicitation agreements reasonably satisfactory to the Purchasers; WHEREAS, the Sellers have represented to the Company that none of the Sellers, except as to Karp who owns 100,000 immediately exercisable options to purchase Common Stock issued to her under the Company's 2005 Incentive Stock Plan, currently own any equity or other interest in the Company and that the Company and the Sellers have entered into a Mutual General Release.. NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises made herein and the benefits received by the Sellers in connection with the disposition of their equity and other interests, including but not limited to the forfeit by Hirsch of 1,000,000 options to purchase Common Stock and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound hereby, the parties hereto agree as follows: 1. NON-COMPETITION AND NON-SOLICITATION. For a period ending one year following the date hereof, no Seller shall, directly or indirectly: (a) own an interest in, operate, join, control or participate in, or be connected as an officer, employee, agent, independent contractor, partner, shareholder, member, manager or principal of any corporation, partnership, proprietorship, firm, association, person, or other entity engaged in a business directly competitive with the Company's Business;  (b) take any action, in connection with a business directly competitive with the Company's Business, which might, or which might be anticipated to, divert from the Company any opportunity which would be within the scope of the Company's Business; (c) either for himself, herself or itself or for any other person, or entity, divert or take away (or attempt to divert or take away), call on or solicit (or attempt to call on or solicit), any of the customers or clients of the Company for the purpose of inducing such persons to do business with a direct competitor of the Company; or (d) induce or influence, or seek to induce or influence, any person who is engaged as an employee, agent, independent contractor, consultant, advisor or otherwise by the Company, to terminate his, her or its employment, engagement or relationship with the Company or to become employed or engaged by any other business in competition with the Company. 2. CONFIDENTIALITY. Each Seller agrees not to disclose to any third party, or publish or make use of any knowledge or information of any type whatsoever of a confidential or proprietary nature relating to the Company or its affiliates and their respective businesses, including without limitation all types of trade secrets (unless readily ascertainable from public or published information or trade sources) without the prior written consent of the Company. 3. MISCELLANEOUS. 3.1 INSURANCE BENEFITS. The Company hereby agrees for a period of two years from the date hereof to provide to Hirsch the same insurance benefits as he currently receives. 3.2 OFFICE FURNITURE. The Company hereby acknowledges that Hirsch may remove all his personal office furniture. 3.3 WAIVER. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 3.4 ENFORCEMENT. Each Seller acknowledges that were he, she or it to breach the provisions of this Agreement, the damages to the Company would be irreparable, and each Seller therefore agrees that in the event that he, she or it is in breach of or threatens to breach this Agreement, then the Company shall be entitled to equitable relief, in addition to any other remedies the Company may have at law, including an injunction restraining such Seller from such breach, and shall be entitled to recover from such Seller, in addition to any monetary damages, the costs and expenses (including reasonable attorneys' fees and other costs), incurred by it in securing such relief. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies, at law or in equity, for such breach or threatened breach. Further, each Seller hereby waives any requirement for security or the posting of any bond or other surety and proof of damages. 2  3.5 PARTIAL INVALIDITY. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 3.6 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Any such counterpart signature page may be delivered by electronic means or facsimile and shall become binding on the delivering party upon receipt by the other party. 3.7 CHOICE OF LAW. This Agreement shall be governed by, and shall be construed in accordance with, the laws of the State of Florida, without reference to conflicts of law principles. [SIGNATURES APPEAR ON FOLLOWING PAGE] 3  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. RELATIONSERVE MEDIA INC. By: /s/ ----------------------------------- Name: Title: SELLERS /s/ ----------------------------------- Scott Hirsch Address: /s/ ----------------------------------- Danielle Karp Address: BOSTON TECHNOLOGY VENTURES CORPORATION By: /s/ ----------------------------------- Name: Title: Address: MCCALL & ESTES ADVERTISING, INC. By: /s/ ----------------------------------- Name: Title: Address: