EXHIBIT 99.2
TERMINATION AGREEMENT
---------------------
THIS TERMINATION AGREEMENT (this "Agreement") is made effective as of
October 11, 2005, by and among xxxxxxxx.xxx, inc., a Delaware corporation (the
"Corporation"), SendTec, Inc., a Florida corporation ("SendTec"), and Xxxx
Xxxxxxx ("Xxxxxxx"), Xxxx Xxxxx ("Xxxxx"), Xxxxxx Xxxxx ("Xxxxx"), Xxxxx Xxxxxx
("Xxxxxx"), Irvine and Xxxxxx Xxxxxxxx, as tenants by the entirety (the
"Brechners"), Xxxxx Xxxxx ("Xxxxx"), G. Xxxxxx Xxxxxx ("Xxxxxx") and Xxxxxx
Xxxxxx ("Xxxxxx") (each a "Securityholder" and collectively, the
"Securityholders").
RECITALS
--------
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, Xxxxx is the owner of 93,110 options, Alison is the owner of 256,169
options, and Xxxxxx 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 Xxxxx (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).
E. Each of the Securityholders (other than Xxxxxx Xxxxxxxx, Xxxxx and
Xxxxxx) 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").
X. Xxxxx and Xxxxxx are employed by SendTec on an at-will basis (Xxxxx,
Xxxxxx 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 Xxxxx and Xxxxxx) 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 Xxxxx and
Xxxxxx 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
---------------
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 Xxxx Xxxxxxx in his capacity as the "Payee's
Representative" (the "Promissory Note"). Upon receipt of such payment,
Xxxx Xxxxxxx shall promptly xxxx 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.
2
(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
Xxxxx, Xxxxxx or Xxxxxx, as the case may be.
2. TERMINATION OF EMPLOYMENT. Each Employee (other than Xxxxx and
Xxxxxx) 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 Xxxxx and Xxxxxx 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.
3
(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.
4
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) The Corporation and SendTec shall have paid in full and
satisfied the Promissory Note; and
(e) The Closing will have taken place not later than November
30, 2005.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CORPORATION. The
obligation of the Corporation 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 Corporation):
(a) The representations and warranties made by the
Securityholders in Section 3 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 Securityholders shall have performed and complied with
all of their covenants, obligations and conditions under this Agreement
that are to be performed or complied with by them at or prior to the
Closing;
5
(c) The Corporation shall have received a certificate,
executed by the Securityholders, and dated as of the Closing Date,
reasonably satisfactory to the Corporation, certifying the matters set
forth in Section 6(a) and Section 6(b); and
(d) The Closing will have taken place not later than November
30, 2005.
7. RELEASES; COVENANT NOT TO XXX.
(a) Effective upon the Closing and the receipt of the
Termination Price by a Securityholder, such Securityholder hereby
releases any and all claims and rights that such Securityholder may
have against any one or more of the Corporation, its officers,
directors, assigns, attorneys, employees and/or agents (including
specifically Xxxxxx Xxxxxxxx and Xxxxxxx Xxxx), and their respective
Affiliates (as defined in Rule 501 promulgated under the Securities Act
of 1933) (collectively, the "Globe Released Parties") with respect to
the Options and Warrants. Each Securityholder understands and agrees
that the foregoing release is binding on such Securityholder and on
anyone who succeeds to such Securityholder's rights.
(b) Effective upon the Closing and the receipt of the
Termination Price by an Employee, such Employee hereby releases any and
all claims and rights that such Employee may have against any one or
more of the Globe Released Parties with respect to the Employment
Agreement, if any, to which such Employee is a party and such
Employee's employment relationship with SendTec. The foregoing release
shall include, without limitation, but in each case solely with respect
to such Employee's employment with SendTec and/or such Employment
Agreement, a release of claims for or with respect to: (i) such
Employee's service, if any, as a director or officer of any of the
Globe Released Parties; (ii) all employee benefits related to such
Employee's employment, the termination of such employment, and/or any
of the events relating directly or indirectly to or surrounding such
termination; (iii) any and all claims of discrimination, harassment,
whistle blowing or retaliation in employment (whether based on federal,
state or local law, statutory or decisional), including, without
limitation, all claims under Title VII of the Civil Rights Act of 1964,
as amended, the Americans with Disabilities Act, the Civil Rights Act
of 1991, the Reconstruction Era Civil Rights Act of 1866, 42 USC xx.xx.
1981-86, as amended, the Equal Pay Act, the Fair Labor Standards Act,
the Family and Medical Leave Act, the Employee Retirement Income
Security Act ("ERISA"), the Florida Civil Rights Act of 1992 f/k/a
Human Rights Act of 1977, the Florida Private Whistle-Blower Law (Fla.
Stat. ss. 448.101 et seq), the Florida Public Whistle-Blower Act (Fla.
Stat. ss. 112.3187 et seq.), the Florida Equal Pay Act, and waivable
rights under the Florida Constitution; (iv) any and all claims for
wrongful discharge; (v) any and all claims for damages of any kind
whatsoever, including without limitation compensatory, punitive,
treble, liquidated and/or consequential damages; (vi) any and all
claims for unintentional or intentional torts; (vii) any and all claims
for violation of any statutory or administrative rules, regulations or
codes; and (viii) any and all claims for attorneys' fees, costs,
disbursements, wages, bonuses, benefits, vacation and/or the like. Each
Employee giving this release understands and agrees that the foregoing
release is binding on such Employee and on anyone who succeeds to such
Employee's rights.
6
(c) Notwithstanding Sections 7(a) and 7(b) above, the releases
contained therein shall not apply to, or be deemed to constitute a
release with respect to (i) any Securityholder's or Employee's rights
under this Agreement or the Redemption Agreement, (ii) in the case of
Xxxxx, Xxxxxx or Xxxxxx, any claims with respect to his Other Options
(such Other Options to 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 Xxxxx, Xxxxxx or Xxxxxx, as
the case may be), or (iii) any claim by any Securityholder or Employee
for indemnification as a director, former director, officer, former
officer, employee or former employee of the Corporation, SendTec or any
of their Affiliates (to the extent that such Securityholder or Employee
(A) served in any such capacity and (B) is entitled to indemnification
by law, contract or otherwise with respect to any such service). In
addition, the releases contained in Sections 7(a) and 7(b) shall be
null and void and of no force or effect if, pursuant to a final,
non-appealable determination of a court of competent jurisdiction, this
Agreement is held to be null and void, or unenforceable.
(d) Each Securityholder represents to the Globe Released
Parties that he or she has not assigned or transferred or purported to
assign or transfer to any person or entity all or any part of, or any
interest in, any claim, contention, demand, cause of action (at law or
in equity) or liability of any nature, character, or description
whatsoever, which is to be released or discharged by the release
contained in Section 7(a) (as modified by Section 7(c)). Each Employee
represents to the Globe Released Parties that he has not assigned or
transferred or purported to assign or transfer to any person or entity
all or any part of, or any interest in, any claim, contention, demand,
cause of action (at law or in equity) or liability of any nature,
character, or description whatsoever, which is to be released under the
release contained in Section 7(b) (as modified by Section 7(c)).
(e) Each Securityholder hereby irrevocably covenants to
refrain from, directly or indirectly, asserting any claim or demand, or
commencing, instituting or causing to be commenced, any proceeding of
any kind against any one or more Globe Released Parties based upon any
matter released in Section 7(a) (as modified by Section 7(c)). Each
Employee hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting
or causing to be commenced, any proceeding of any kind against any one
or more Globe Released Parties based upon any matter released in
Section 7(b) (as modified by Section 7(c)).
8. RELEASE GRANTED BY THE CORPORATION AND SENDTEC; COVENANT NOT TO XXX.
(a) Effective upon the Closing and the consummation of the
transactions under this Agreement, the Corporation and SendTec, on
behalf of themselves and their respective Affiliates (each, a "Globe
Releasor"), hereby releases any and all claims and rights that such
Globe Releasor may have against each of the Employees and his
respective heirs, successors and assigns (individually, an "Employee
Released Party" and collectively, the "Employee Released Parties"),
with respect to the Employment Agreement, if any, to which such
Employee Released Party is a party or with respect to such Employee's
employment relationship with SendTec or service as a director or
officer of any of the Globe Releasors, including, without limitation:
7
(i) any and all claims for damages of any kind whatsoever, including
without limitation compensatory, punitive, treble, liquidated and/or
consequential damages; (ii) any and all claims for unintentional or
intentional torts; (iii) any and all claims for violation of any
statutory or administrative rules, regulations or codes; and (iv) any
and all claims for attorneys' fees, costs and/or the like. Each of the
Globe Releasors understands and agrees that the foregoing release is
binding on such Globe Releasor and on anyone who succeeds to such Globe
Releasor's rights.
(b) Notwithstanding the foregoing, this release shall not
apply to any of the Globe Releasor's rights under this Agreement or the
Redemption Agreement.
(c) This release shall be null and void and of no force or
effect if, pursuant to a final, non-appealable determination of a court
of competent jurisdiction, this Agreement is held to be null and void,
or unenforceable.
(d) Each of the Globe Releasors represents to the Employee
Released Parties that such Globe Releasor has not assigned or
transferred or purported to assign or transfer to any person or entity
all or any part of, or any interest in, any claim, contention, demand,
cause of action (at law or in equity) or liability of any nature,
character, or description whatsoever, which is to be released by the
release contained in this Section 8.
(e) Each Globe Releasor hereby irrevocably covenants to
refrain from, directly or indirectly, asserting any claim or demand, or
commencing, instituting or causing to be commenced, any proceeding of
any kind against any Employee Released Party based upon any matter
released in this Section 8.
9. EFFECT ON EMPLOYMENT AGREEMENT. Notwithstanding the termination of
the Employment Agreements under the terms and conditions of this Agreement, the
provisions of Section 7 of each Employment Agreement shall continue to remain in
full force and effect for the benefit of the Corporation and its Affiliates
(other than SendTec); provided, however, that the obligations of each Employee
under Section 7 of his Employment Agreement and this Section 9 shall not apply
to any Confidential Information (as defined in Section 7 of his Employment
Agreement) with respect to SendTec, its assets, liabilities, financial
condition, prospects, business or operations.
10. ACKNOWLEDGMENT. Each Employee acknowledges that such Employee (a)
has been advised in writing to consult with an attorney before signing this
Agreement, (b) has had a reasonable period of time to consider the terms of this
Agreement prior to executing and delivering it to the Corporation, (c) fully
understands all of the terms of this Agreement and their significance, and (d)
has signed it voluntarily and of such Employee's own free will.
11. TERMINATION.
(a) EVENTS OF TERMINATION. This Agreement may be terminated at
any time prior to the Closing:
(i) by the mutual written consent of the Corporation
and Xxxx Xxxxxxx (the "Securityholders' Representative");
8
(ii) by the Corporation or by the Securityholders'
Representative if the Closing shall not have occurred on or
before 11:59 p.m. Eastern Time on November 30, 2005 (or such
later date as may be mutually agreed to by the Corporation and
the Securityholders' Representative); or
(iii) by the Corporation or the Securityholders'
Representative, upon any event of termination of the Asset
Purchase Agreement or the Redemption Agreement.
(b) NOTICE OF TERMINATION. Any party desiring to terminate
this Agreement pursuant to Section 11 (a) shall give notice of such
termination to the other party to this Agreement (which other party
shall mean the Securityholders' Representative, in the case of a
termination by the Corporation) specifying the reason for such
termination.
(c) EFFECT OF TERMINATION. In the event that this Agreement
shall be terminated pursuant to this Section 11, all further
obligations of the parties under this Agreement shall be terminated
without further liability of any party to the other; provided, however,
that nothing contained herein shall be construed to prevent any party
hereto from pursuing any remedy available at law or in equity for any
breach, violation, default or other failure of performance under this
Agreement of any other party hereto prior to the consummation of the
transactions under this Agreement.
12. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE SECURITYHOLDERS. The
Securityholders will, severally and not jointly, indemnify, defend and
hold harmless the Corporation (which, for purposes of this Section 12
(a) shall include each other "Globe Released Party") from and against
all losses, liabilities, costs, damages and expenses (including
reasonable attorneys' fees) (collectively, "Losses") incurred by the
Corporation in connection with: (i) a breach by any Securityholder of
any of his or her respective representations and warranties contained
in this Agreement or (ii) the failure of any Securityholder to comply
with his or her covenants contained in this Agreement.
(b) INDEMNIFICATION BY THE CORPORATION. The Corporation and
SendTec will indemnify, defend and hold harmless the Securityholders
and their heirs, successors and assigns from and against all Losses
incurred by them (individually or collectively) in connection with: (i)
a breach by the Corporation or SendTec of any of its representations
and warranties contained in this Agreement or (ii) the failure of the
Corporation or SendTec to comply with its covenants contained in this
Agreement.
13. GENERAL PROVISIONS.
(a) NOTICES. All notices, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid, or if sent by overnight courier, as
follows:
9
IF TO THE CORPORATION: xxxxxxxx.xxx, inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
with a copy to: Proskauer Rose LLP
0000 Xxxxxx Xxxx
Xxxxx 000X
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. "Rocky" Xxxxxxxx II,
Esq.
IF TO ANY SECURITYHOLDER OR EMPLOYEE: Xxxx Xxxxxxx, as Securityholders'
Representative
00 Xxxx Xxxx Xxxxx X.X.
Xx. Xxxxxxxxxx, XX 00000
with a copy to: Xxxxxxx Xxxxxx, P.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx,
Attorney at Law
Any such notice shall be deemed given and received (a) if delivered
personally, when received, (b) if sent by overnight courier, when
receipted for, or (c) if mailed, five (5) days after being mailed as
described above.
(b) SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
and shall inure to the benefit of, the parties and their respective
heirs, executors, representatives, administrators, successors, and
assigns.
(c) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties hereto with respect to
the subject matter hereof, and supersedes all proposals,
communications, representations, warranties or agreements, either oral
or written, between the parties hereto prior to the date hereof with
respect to the subject matter hereof.
(e) FURTHER ASSURANCES. Each of the parties hereto shall, at
the requesting party's expense, take such further actions as are
reasonably deemed by the requesting party to be necessary or desirable
in order to effectively carry out the intent and purpose of this
Agreement and the transactions contemplated hereby.
10
(f) ATTORNEYS' FEES AND COSTS. If any legal action or other
proceeding is brought by a party hereto for the enforcement of this
Agreement, or because of an alleged breach, default or
misrepresentation by the other party in connection with any provision
of this Agreement, such party, if successful in such legal action or
other proceeding, shall be entitled to recover reasonable attorneys'
fees and court costs incurred in that action or proceeding, in addition
to any other relief to which such party may be entitled.
(g) CONSTRUCTION. Should any provision of this Agreement
require interpretation or construction, it is agreed by the parties
that the court interpreting or construing this Agreement shall not
apply a presumption that the provisions hereof shall be more strictly
construed against one party by reason of the rule of construction that
a document is to be construed more strictly against the party who
prepared the Agreement, it being agreed that all parties have
participated in the preparation of all provisions of this Agreement.
(h) GOVERNING LAW. This Agreement shall be enforced, governed
and interpreted by the laws of the State of Delaware without regard to
Delaware's conflict of laws principles that would result in the
application of the laws of any other jurisdiction.
(i) JURISDICTION AND VENUE. The parties acknowledge that a
substantial portion of negotiations and anticipated performance and
execution of this Agreement occurred or shall occur in Broward County,
Florida, and that, therefore, each of the parties irrevocably and
unconditionally (i) agrees that any suit, action or legal proceeding
arising out of or relating to this Agreement shall be brought only in
the courts of record of the State of Florida in Broward County or the
United States District Court, Southern District of Florida; (ii)
consents to the jurisdiction of each such court in any suit, action or
proceeding; and (iii) waives any objection which it may have to the
laying of the venue of any such suit, action or proceeding in any of
such courts.
(j) AMENDMENTS. This Agreement may be amended only in writing
by the Corporation, SendTec and the Securityholders.
(k) LIMITED POWER OF ATTORNEY. The Securityholders hereby
grant to the Securityholders' Representative a limited power of
attorney to take actions on their behalf to the extent that the
Securityholders' Representative is expressly granted the right to act
or consent under this Agreement.
[Signatures begin on the next page]
11
The parties have executed this Termination Agreement as of the day and
year first above written.
xxxxxxxx.xxx, inc.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
SendTec, Inc.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
/s/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
/s/ Xxx Xxxxxxxx
----------------------------------
Xxx Xxxxxxxx, as tenant by the entirety
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxx, as tenant by the entirety
/s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
/s/ G. Xxxxxx Xxxxxx
----------------------------------
G. Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
12
Schedule A
----------
Options and Warrants
--------------------------------------------------------------------------------
Performance-Based Earn-Out Termination
Name Options Options Warrants Price
--------------------------------------------------------------------------------
Xxxx Xxxxxxx 477,337 Zero (0) 727,370 $163,160
--------------------------------------------------------------------------------
Xxxx Xxxxx 431,154 Zero (0) 330,653 $123,854
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 55,394 Zero (0) 330,653 $15,574
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 73,394 Zero (0) 330,653 $16,687
--------------------------------------------------------------------------------
Xxx and Xxxxxx 55,394 Zero (0) 330,653 $15,574
Xxxxxxxx, as
tenants by the
entirety
--------------------------------------------------------------------------------
Xxxxx Xxxxx 93,110 90,000 12,803 $55,252
--------------------------------------------------------------------------------
G. Xxxxxx Xxxxxx 256,169 150,000 Zero (0) $180,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxxx 303,509 120,000 Zero (0) $188,385
--------------------------------------------------------------------------------
TOTAL: 1,745,461 360,000 2,062,785 $758,486
--------------------------------------------------------------------------------
13
