Attached files

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EX-10.2 - REGISTRATION RIGHTS AGREEMENT - SharpSpring, Inc.smtp_ex10z2.htm
EX-99.1 - CONTACT - SharpSpring, Inc.smtp_ex99z1.htm
EX-10.1 - INVESTMENT AGREEMENT - SharpSpring, Inc.smtp_ex10z1.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM 8-K

CURRENT REPORT


Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934


Date of Report (Date of earliest event reported): May 24, 2013 (May 22, 2013)


SMTP, Inc.

 (Exact name of registrant as specified in its charter)


 

 

 

Delaware

0-54309

05-0502529

(State or other jurisdiction of Incorporation or Organization)

(Commission File Number)

(I.R.S. Employer
Identification No.)


 

 

 

1810 E. Sahara Ave. Suite 111

Las Vegas, NV

 

89104

(Address of principal executive offices)

 

(Zip Code)


Registrant's telephone number, including area code: 877-705-9362 Ext. 205


 

 

 

 

(Former name or former address, if changed since last report)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:


[  ]

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[  ]

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[  ]

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[  ]

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))






Item 1.01

Entry Into a Material Definitive Agreement

 

On May 22, 2013 SMTP, Inc., a Delaware corporation (the “Company”), entered into an Investment Agreement (the “Investment Agreement”) with Dutchess Opportunity Fund, II, LP, a Delaware limited partnership (the “Investor”). Pursuant to the Investment Agreement, and subject to certain restrictions and conditions, the Company may issue and sell to the Investor, and the Investor shall purchase from the Company, up to that number of shares of the Company’s common stock having an aggregate purchase price of two million five hundred thousand dollars ($2,500,000), over a period of 36 months from the first trading day following the effectiveness of the registration statement registering the resale of shares purchased by the Investor pursuant to the Investment Agreement.


The Company may in its discretion draw on the facility from time to time, as and when the Company determines appropriate in accordance with the terms and conditions of the Investment Agreement.  The maximum number of shares of common stock that the Company is entitled to put to the Investor in any one draw down notice is the greater of either: (i) two hundred percent (200%) of the average daily volume (U.S. market only) of the Company’s common stock for the three (3) trading days prior to the date of delivery of the applicable draw down notice, multiplied by the average of the three (3) daily closing prices immediately preceding the notice date or (ii) one hundred thousand dollars ($100,000).


 

The purchase price shall be set at ninety-two percent (92%) of the lowest daily volume weighted average price (VWAP) of the Common Stock during the five (5) consecutive trading day period beginning on the date of delivery of the applicable draw down notice. The Company has the right to withdraw all or any portion of any put, except that portion of the put that has already been sold to a third party, including any portion of a put that is below the minimum acceptable price set forth on the put notice, before the closing.

 

There are put restrictions applied on days between the draw down notice date and the closing date with respect to that particular put. During such time, the Company shall not be entitled to deliver another draw down notice. In addition, the Investor will not be obligated to purchase shares of the Company’s common stock if: (i) there is no effective registration statement to cover the resale of the shares of common stock; (ii) the common stock is suspended from trading or the Company is notified of any pending or threatened proceeding or other action to suspend the trading of the common stock; (iii) the Company has not complied with its obligations and is otherwise not in breach of or in default under the Investment Agreement or any other related agreement; (iv) certain other conditions described in the Investment Agreement are not met.


The Investment Agreement also contains customary representations and warranties of each of the parties. The assertions embodied in those representations and warranties were made for purposes of the Investment Agreement and are subject to qualifications and limitations agreed to by the parties in connection with negotiating the terms of the Investment Agreement. The Investment Agreement further provides that the Company and the Investor are each entitled to customary indemnification from the other for, among other things, any losses or liabilities they may suffer as a result of any breach by the other party of any provisions of the Investment




Agreement or Registration Rights Agreement (as defined below). Investors should read the Investment Agreement together with the other information concerning the Company that the Company publicly files in reports and statements with the Securities and Exchange Commission (the “SEC”).

 

Pursuant to the terms of a Registration Rights Agreement dated May 22, 2013 between the Company and the Investor (the “Registration Rights Agreement”), the Company is obligated to file one or more registrations statements with the SEC to register the resale by the Investor of the shares of Common Stock issued or issuable under the Investment Agreement. In addition, the Company is obligated to use all commercially reasonable efforts to have the registration statement remain effective by the SEC as provided for in the Investment Agreement. In connection with the preparation of the Investment Agreement and the Registration Rights Agreement, the Company paid the Investor a document preparation fee in the amount of $10,000.

 

The foregoing description of each of the Investment Agreement and the Registration Rights Agreement is qualified in its entirety by reference to the full text of the Investment Agreement and the Registration Rights Agreement, respectively, which are filed as Exhibit 10.1 and 10.2 to this Report on Form 8-K and incorporated herein by reference.


Item 7.01

Regulation FD Disclosure


The Company issued a press release on May 24, 2013 regarding entry into the Investment Agreement, which is attached as Exhibit 99.1.


Item 9.01 Financial Statements and Exhibits

(d)

Exhibits


Exhibit No.

Description

10.1

Investment Agreement by and between SMTP, Inc. and Dutchess Opportunity Fund, II, LP, dated as of May 22, 2013

 

 


 

 

 

 

10.2

Registration Rights Agreement by and between SMTP, Inc. and Dutchess Opportunity Fund, II, LP, dated as of May 22, 2013

 

99.1

Press Release dated May 24, 2013


 




SIGNATURES


Pursuant to the requirements of the Securities Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


SMTP, INC.


By:

/s/ Semyon Dukach

Semyon Dukach,

Chair of the Board of Directors


Dated: May 24, 2013