EXHIBIT 99.2
TERMINATION AGREEMENT
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THIS TERMINATION AGREEMENT (this "Agreement") is made effective as
of
October 11, 2005, by and among
theglobe.com, inc., a Delaware corporation (the
"Corporation"), SendTec, Inc., a Florida
corporation ("SendTec"), and Paul
Soltoff ("Soltoff"), Eric Obeck ("Obeck"),
Donald Gould ("Gould"), Harry Greene
("Greene"), Irvine and Nadine Brechner, as
tenants by the entirety (the
"Brechners"), Allen Vance ("Vance"), G.
Thomas Alison ("Alison") and Steven
Morvay ("Morvay") (each a "Securityholder"
and collectively, the
"Securityholders").
RECITALS
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A. Each Securityholder is the owner of that number of options
for
common stock of the Corporation ("Options")
as set forth opposite such
Securityholder's name on Schedule A
attached hereto and made a part hereof. In
addition, Vance is the owner of 93,110
options, Alison is the owner of 256,169
options, and Morvay is the owner of 303,509
options to purchase common stock of
the Corporation that are not set forth
opposite such Securityholder's name on
Schedule A (collectively, the "Other
Options").
B. Each Securityholder has a contingent interest in that number
of
Performance-Based Options and Earn-Out
Warrants (as such terms are defined in
the Agreement and Plan of Merger dated as
of August 31, 2004 (the "Merger
Agreement")) set forth opposite such
Securityholder's name on Schedule A hereto
(the Performance-Based Options and the
Earn-Out Warrants in which the
Securityholder's have a contingent
interest, collectively with the Options, are
referred to herein as the "Options and
Warrants").
C. SendTec and the Corporation are parties to an Asset Purchase
Agreement, dated as of August 10, 2005,
with RelationServe Media, Inc. (the
"Buyer") providing for the sale by SendTec
and the purchase by the Buyer or its
designated subsidiary of substantially all
of SendTec's assets (as amended by
Amendment No. 1 thereto dated as of August
23, 2005, the "Asset Purchase
Agreement"). A copy of the Asset Purchase
Agreement has been furnished to the
Securityholders.
D. Under the terms and conditions of this Agreement, each
Securityholder is willing, effective upon
the closings under the Asset Purchase
Agreement and under the Redemption
Agreement, dated as of August 23, 2005 (the
"Redemption Agreement"), by and among the
Corporation, Soltoff, Obeck, Gould,
Greene, the Brechners and Vance (both
closings being together called the
"Closing"), to cancel and terminate all of
his or her respective Options and
Warrants listed next to such
Securityholder's name on Schedule A hereto in
exchange for payment of the consideration
set forth opposite such
Securityholder's name on Schedule A hereto
and the Corporation is willing,
effective upon the Closing, to pay such
consideration to each Securityholder in
exchange for the termination by such
Securityholder of his or her Options and
Warrants (it being understood and agreed
that references herein to the
cancellation and/or termination of Options
and Warrants, to the extent
consisting of Performance-Based Options and
Earn-Out Warrants, shall mean the
cancellation and termination of a
Securityholder's contingent interest therein).
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E. Each of the Securityholders (other than Nadine Brechner, Vance
and
Morvay) is a party to an Employment
Agreement with SendTec dated on or about
September 1, 2004 (August 1, 2004 with
regard to Alison) (individually, an
"Employment Agreement").
F. Vance and Morvay are employed by SendTec on an at-will basis
(Vance,
Morvay and each of the Securityholders who
is party to an Employment Agreement
are individually referred to herein as an
"Employee" and collectively as the
"Employees").
G. Under the terms and conditions of this Agreement, each of
the
Employees (other than Vance and Morvay) is
willing to irrevocably terminate his
Employment Agreement, as well as his
employment with SendTec, effective upon the
Closing and the receipt by such Employee of
the Termination Price, as defined in
Section 1(a).
H. Under the terms and conditions of this Agreement, each of Vance
and
Morvay is willing to irrevocably terminate
his employment with SendTec effective
upon the Closing and the receipt by such
Employee of the Termination Price.
OPERATIVE TERMS
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In consideration of the mutual covenants and agreements contained
in
this Agreement, the receipt and sufficiency
of which are hereby acknowledged,
the parties agree as follows:
1. CANCELLATION OF OPTIONS AND WARRANTS; PAYMENT OF THE
TERMINATION
PRICE; AND PAYMENT OF PROMISSORY NOTE.
(a) Concurrently
with the Closing,
and upon receipt by
each
Securityholder
of the cash payment set forth opposite such
Securityholder's
name on Schedule A (as to each applicable
Securityholder, the
"Termination Price"),
the Corporation will cancel
and terminate
all of the Options and
Warrants listed
opposite such
Securityholder's name
on Schedule A,
whereupon each such Option and
Warrant shall
be terminated and become null and void (the
"Termination"). Each
Employee acknowledges
and agrees that payment of
the Termination
Price to such Employee
shall be subject to applicable
employment tax and
income tax
withholding
by the Corporation and,
therefore, that the
Termination
Price payable to such
Employee under
this Agreement shall be reduced by such applicable employment tax and
income tax withholding.
(b) Concurrently with the Closing, the Corporation will pay
the Termination Price to each Securityholder. The Termination
Price
represents the total amount to be received by each Securityholder
with
respect to the Termination and such Securityholder's other
agreements
set forth herein.
(c) Concurrently with the Closing, the Corporation and SendTec
shall pay in full and satisfy that certain $1,000,009.09
Subordinated
Promissory Note, dated as of September 1, 2004, made payable by
the
Corporation to Paul Soltoff in his capacity as the "Payee's
Representative" (the "Promissory Note"). Upon receipt of such
payment,
Paul Soltoff shall promptly mark the original Promissory Note
"cancelled" and return the original Promissory Note to the
Corporation
at its address for notices set forth in Section 13(a) below.
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(d) The Other Options are not being cancelled or terminated
under this Agreement. The Other Options shall remain in effect
after
the Closing in accordance with the terms of the Other Options and
the
plan and agreement under which such Other Options were granted
to
Vance, Alison or Morvay, as the case may be.
2. TERMINATION OF EMPLOYMENT. Each Employee (other than Vance
and
Morvay) hereby agrees that subject to the
terms and conditions of this
Agreement, such Employee's Employment
Agreement, as well as such Employee's
employment with SendTec, shall irrevocably
terminate upon the Closing and the
receipt by such Securityholder of the
Termination Price (except for the
provisions of such Employment Agreement
that are expressly stated to survive
such termination in Section 9 of this
Agreement). Without limitation of the
at-will nature of his employment, each of
Vance and Morvay hereby agrees that
his employment with SendTec shall
irrevocably terminate upon the Closing and the
receipt by such individual of the
Termination Price.
3. SECURITYHOLDERS' REPRESENTATIONS AND WARRANTIES. Each
Securityholder
represents and warrants to the Corporation
that:
(a) Such Securityholder has the right, power and legal
capacity to enter into and perform his or her obligations under
this
Agreement, and this Agreement constitutes, and each document or
instrument to be executed by such Securityholder pursuant to the
terms
hereof will be, upon its execution and delivery, the valid and
legally
binding obligation of such Securityholder, enforceable against
such
Securityholder in accordance with its terms.
(b) Such Securityholder exclusively owns all right, title and
interest in and holds full legal, equitable and beneficial
ownership of
the Options and Warrants that are listed opposite such
Securityholder's
name on Schedule A, free and clear of any liens, security
interests,
encumbrances and restrictions on or conditions to transfer or
assignment (other than those set forth in the Merger Agreement or
in
any plans and agreements of the Corporation with respect to the
Options
and Warrants). There are no outstanding agreements or commitments
of
any nature obligating such Securityholder to transfer any or all of
the
Options and Warrants owned by such Securityholder or any
interest
therein to any other party.
(c) The execution and delivery by such Securityholder of this
Agreement and the performance of such Securityholder's
obligations
under this Agreement does not and will not (i) violate any law,
rule or
regulation to which such Securityholder is subject; or (ii) breach
or
violate any judgment, order, decree, mortgage, lease or other
contract
or commitment to which such Securityholder is a party or by which
he or
she is bound the violation or breach of which (in either clause (i)
or
(ii) above) could have an adverse effect on this Agreement or
the
transactions contemplated by this Agreement.
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<PAGE>
(d) There is no claim, suit, action, legal, administrative, or
other proceeding pending or, to such Securityholder's
knowledge,
threatened, against such Securityholder with respect to this
Agreement,
any or all of the Options and Warrants, any interest therein or
the
transactions contemplated hereby.
(e) By reason of the Securityholder's business or financial
experience, or the business or financial experience of his or
her
professional advisor who is unaffiliated with and who is not
compensated by the Corporation, such Securityholder has the ability
to
evaluate the business of the Corporation, the value of the Options
and
Warrants owned by the Securityholder, the tax consequences of
the
transactions contemplated by this Agreement and the sufficiency of
the
Termination Price.
(f) Such Securityholder acknowledges that such Securityholder
has had the opportunity to obtain additional information regarding
the
Corporation and its business, and has been given the opportunity
to
meet with officials of the Corporation and to have such
officials
answer any questions regarding the Corporation and its business and
all
such questions have been answered to such Securityholder's
satisfaction.
4. CORPORATION'S REPRESENTATIONS AND WARRANTIES. The Corporation
hereby
represents and warrant to the
Securityholders that:
(a) The Corporation has the right, power and legal capacity to
enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorized by all necessary
corporate and other action on the part of the Corporation and
constitutes, and each document or instrument to be executed by
the
Corporation pursuant to the terms hereof will be, upon its
execution
and delivery, the valid and legally binding obligation of the
Corporation, enforceable against the Corporation in accordance with
its
terms.
(c) The execution and delivery by the Corporation of this
Agreement and the performance of its obligations under this
Agreement
does not and will not: (i) violate any law, rule or regulation to
which
the Corporation is subject or by which it is bound; or (ii) breach
or
violate any judgment, order, decree, mortgage, lease or other
contract
or commitment to which the Corporation is a party or by which it
is
bound, the violation or breach of which (in either clause (i) or
(ii)
above) could have an adverse effect on this Agreement or the
transactions contemplated by this Agreement.
(d) There is no claim, suit, action, legal, administrative, or
other proceeding pending or, to the knowledge of the
Corporation,
threatened, against the Corporation with respect to this Agreement,
any
or all of the Options and Warrants or any interest therein or
the
transactions contemplated under this Agreement.
(e) Neither the entering into of this Agreement by the
Corporation nor the payment by the Corporation of the Termination
Price
to each of the Securityholders will violate the Delaware
General
Corporation Law.
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<PAGE>
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SECURITYHOLDERS.
The
obligation of the Securityholders to
consummate the transactions under this
Agreement shall be subject to the
satisfaction, at or prior to the Closing, of
each of the following conditions (to the
extent satisfaction is not waived in
writing by the Securityholders):
(a) The representations and warranties made by the Corporation
in Section 4 of this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing with
the
same effect as though such representations and warranties had been
made
or given at and as of the Closing (except for representations
and
warranties that speak as of a specific date, which shall be true
and
correct in
all material respects as of such specific date);
(b) The Corporation shall have performed and complied with all
of its covenants, obligations and conditions under this Agreement
that
are to be performed or complied with by it at or prior to the
Closing;
(c) The Securityholders shall have received a certificate,
executed by an executive officer of the Corporation and dated as of
the
Closing Date, as defined in the Asset Purchase Agreement,
reasonably
satisfactory to the Securityholders, certifying the matters set
forth
in Section 5(a) and Section 5(b) and further certifying to: (i)
the
adoption of the board of directors of the Corporation of a
resolution,
that has not been amended, modified or rescinded, approving the
transactions contemplated by this Agreement (the "Contemplated
Transactions"); (ii) the incumbency of officers of the Corporation
who
are executing this Agreement or any of the documents with respect
to
the transactions under this Agreement or certificates
contemplated
hereunder; and (iii) the Corporation's charter and bylaws;
(d)
