-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VZ9aRSxNtX0PkssO5yvDfJTgwTRpFBqfO5cwELHVNdG6kDDI5mTlERdw6TQ7KTU6 89JyJ8EokDCuUsFhzLK99Q== 0000895345-01-500088.txt : 20010430 0000895345-01-500088.hdr.sgml : 20010430 ACCESSION NUMBER: 0000895345-01-500088 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010427 EFFECTIVENESS DATE: 20010427 FILER: COMPANY DATA: COMPANY CONFORMED NAME: THEGLOBE COM INC CENTRAL INDEX KEY: 0001066684 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310] IRS NUMBER: 141782422 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59736 FILM NUMBER: 1614383 BUSINESS ADDRESS: STREET 1: 120 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10271 BUSINESS PHONE: 2128943600 MAIL ADDRESS: STREET 1: 120 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10271 S-8 1 forms8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 27, 2001 REGISTRATION NO. 333- =========================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------- theglobe.com, inc. (Exact name of registrant as specified in its charter) DELAWARE 14-1781422 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 120 BROADWAY NEW YORK, NEW YORK 10271 (Address of registrant's principal executive offices) THEGLOBE.COM, INC. 2000 STOCK OPTION PLAN THEGLOBE.COM, INC. 2000 BROAD BASED EMPLOYEE STOCK OPTION PLAN THEGLOBE.COM, INC. 1998 STOCK OPTION PLAN, AS AMENDED AND RESTATED CERTAIN SHARES TO BE ISSUED TO CHARLES PECK PURSUANT TO THE NON- QUALIFIED STOCK OPTION AGREEMENTS DATED JULY 14, 2000 (Full title of the plans) STEPHANIE HAUGE THEGLOBE.COM, INC. 120 BROADWAY NEW YORK, NEW YORK 10271 (212) 894-3600 (Name, address, and telephone number of agent for service) CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Aggregate Amount of to be Registered (1) Registered (2) Per Share Offering Price Registration Fee - ------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.001 per share 2,350,000 shares $0.17(3) $399,500.00 $99.88 - ------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.001 per share 1,250,000 shares $1.9375(4) $2,421,875 $605.47 ======================================================================================================================== Total 3,600,000 shares $2,821,375 $705.35 ======================================================================================================================== (1) The Common Stock referred to herein includes Preferred Stock Purchase Rights (the "Rights"). The Rights will be associated and trade with the Common Stock. The value, if any, of the Rights will be reflected in the market price of the Common Stock. (2) Plus such additional number of shares as may be required in the event of a stock dividend, stock split, recapitalization or other similar event in accordance with Rule 416 of the Securities Act of 1933, as amended (the "Securities Act"). (3) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) of the Securities Act based upon the average of the high and low prices of the Registrant's common stock, par value $.001 per share, as reported by the Over the Counter Bulletin Board on April 26, 2001. (4) Pursuant to Rule 457(h) of the Securities Act, the maximum price at which stock options covering the registered shares of Common Stock may be exercised.
PART I EXPLANATORY NOTE This Form S-8 Registration Statement relates to (i) 1,000,000 shares of common stock of theglobe.com, inc., par value $.001 per share (the "Common Stock"), which may be issued under our 1998 Stock Option Plan, as amended and restated (the "1998 Plan"), (ii) 500,000 shares of Common Stock which may be issued under our 2000 Stock Option Plan (the "2000 Plan"), (iii) 850,000 shares of Common Stock which may be issued under our 2000 Broad Based Employee Stock Option Plan (the "Broad Based Plan"), and (iv) 1,250,000 shares of Common Stock which may be issued to Charles Peck under the Non-Qualified Stock Option Agreements, dated July 14, 2000. The documents containing information specified by Part I of this Registration Statement will be sent or given to holders of options granted under the 1998 Plan, the Broad Based Plan and the 2000 Plan and to Charles Peck as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are not required to be filed with the SEC but constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act. References herein to "the Company" or "the Registrant" shall mean theglobe.com, inc., a Delaware corporation. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC's public reference rooms in Washington, D.C., New York, NY and Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from the SEC's web site at http://www.sec.gov. The SEC allows us to "incorporate by reference" information into this Registration Statement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this Registration Statement, and later information that we file with the SEC will automatically update this Registration Statement. We incorporate by reference the following documents listed below and any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the termination of the offering: (a) Our Registration Statements on Form S-1, filed with the SEC on November 12, 1998 and April 13,1999, in which there are described the terms, rights and provisions applicable to our outstanding Common Stock; and (b) Our Annual Report on Form 10-K, filed with the SEC on April 2, 2001 for the fiscal year ended December 31, 2000. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a corporation may indemnify directors, officers, employees and other individuals against expenses, judgments, fines and amounts paid in settlement in connection with specified non-derivative actions, suits, proceedings or investigations if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. In addition, with respect to any criminal action or proceeding such director must have had no reasonable cause to believe that his or her conduct was unlawful. In the case of derivative actions, a similar standard is applicable except that indemnification only extends to expenses incurred in connection with the defense or settlement of such action. In addition, the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The DGCL provides that it is not exclusive of other indemnification that may be granted by a corporation's charter, by-laws, stockholder or director vote, agreement or otherwise. Our By-Laws require us to indemnify any person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed non-derivative action, suit, arbitration, alternative dispute mechanism, investigation, administrative hearing or any other proceeding, brought by reason of the fact that he or she is or was our director or officer, or while our director or officer is or was serving at our request as a director or officer of another entity, including service with respect to an employee benefits plan against expenses, including attorneys' fees, judgments, fines, excise taxes under ERISA, penalties and amounts paid in settlement, incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to our best interests. In addition, with respect to any criminal action or proceeding such person shall have had no reasonable cause to believe his or her conduct was unlawful. Section 102(b)(7) of the DGCL permits a corporation to provide that a director shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payment of unlawful dividends or unlawful stock purchases or redemptions or (iv) any transaction from which the director derived an improper personal benefit. Our Charter provides that to the fullest extent that the DGCL permits, our directors will not be liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment to or repeal of our Charter inconsistent with these provisions will not adversely affect any right of our director or with respect to any acts or omissions occurring prior to such amendment or repeal. We have entered into indemnification agreements with our directors and officers. These agreements provide that we will indemnify such directors and officers for any amounts paid in settlement or incurred by, or assessed against, such directors and officers arising in connection with the service of such directors and officers to the fullest extent permitted by Delaware law. We maintain directors' and officers' liability insurance. This insurance provides for payment, on behalf of our and our subsidiaries' directors and officers, of certain losses of such persons arising from claims, including claims arising under the Securities Act, for acts or omissions by such persons while acting as directors or officers. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits EXHIBIT NO. DESCRIPTION OF EXHIBIT 4.1 Form of Fourth Amended and Restated Certificate of Incorporation of the Company previously filed as Exhibit 3.1 to the Company's Registration Statement No. 333-59751 on Form S-1, and incorporated herein by reference 4.2 Form of By-Laws of the Company previously filed as Exhibit 3.2 to the Company's Registration Statement No. 333-59751 on Form S-1, and incorporated herein by reference 4.3 Form of Rights Agreement by and between the Company and American Stock Transfer & Trust Company as Rights Agent previously filed as Exhibit 4.6 to the Company's Registration Statement No. 333-59751 on Form S-1, and incorporated herein by reference 4.4 1998 Stock Option Plan previously filed as Exhibit 10.7 to the Company's Registration Statement No. 333-76153 on Form S-1, and incorporated herein by reference 4.5 2000 Stock Option Plan previously filed as Exhibit A to the Company's 2000 Proxy Statement, and incorporated herein by reference 4.6 2000 Broad Based Employee Stock Option Plan previously filed as Exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999, and incorporated herein by reference 4.7* Form of Nonqualified Stock Option Agreement with Charles Peck 4.8* Form of Nonqualified Stock Option Agreement with Charles Peck 5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson 23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1) 23.2* Consent of KPMG LLP (independent public accountants) - ------------- * filed herewith Item 9. Undertakings The Company hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (d) That, for the purpose of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of New York, State of New York, on February 6, 2001. theglobe.com, inc. \s\ Stephanie Hauge ------------------------------------- By: Stephanie Hauge Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) POWER OF ATTORNEY KNOW BY ALL PERSONS BY THESE PRESENTS: That the undersigned officers and directors of theglobe.com, inc., a Delaware corporation, do hereby constitute and appoint Michael S. Egan and Stephanie Hauge, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act and any rules or regulations or requirements of the SEC in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- \s\ Michael S. Egan Chairman and Director February 2, 2001 - ----------------------- Michael S. Egan \s\ Charles M. Peck Chief Executive Officer February 2, 2001 - ----------------------- (Principal Executive Officer) Charles M. Peck \s\ Todd V. Krizelman Co-Vice Chairman, Director February 6, 2001 - ----------------------- Todd V. Krizelman \s\ Stephan J. Paternot Co-Vice Chairman, Director February 6, 2001 - ----------------------- Stephan J. Paternot \s\ Dean S. Daniels President and Chief Operating February 6, 2001 - ----------------------- Officer Dean S. Daniels \s\ Stephanie Hauge Vice President, Chief Financial February 6, 2001 - ----------------------- Officer and Treasurer (Principal Stephanie Hauge Financial and Accounting Officer) \s\ Rosalie V. Arthur Director February 6, 2001 - ----------------------- Rosalie V. Arthur \s\ Edward A. Cespedes Director February 6, 2001 - ----------------------- Edward A. Cespedes Director - ----------------------- Henry C. Duques \s\ Robert M. Halperin Director February 6, 2001 - ----------------------- Robert M. Halperin \s\ H. Wayne Huizenga Director February 6, 2001 - ----------------------- H. Wayne Huizenga \s\ Richard Sarnoff Director February 6, 2001 - ----------------------- Richard Sarnoff Index to Exhibits EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 4.1 Form of Fourth Amended and Restated Certificate of Incorporation of the Company previously filed as Exhibit 3.1 to the Company's Registration Statement No. 333-59751 on Form S-1, and incorporated herein by reference 4.2 Form of By-Laws of the Company previously filed as Exhibit 3.2 to the Company's Registration Statement No. 333-59751 on Form S-1, and incorporated herein by reference 4.3 Form of Rights Agreement by and between the Company and American Stock Transfer & Trust Company as Rights Agent previously filed as Exhibit 4.6 to the Company's Registration Statement No. 333-59751 on Form S-1, and incorporated herein by reference 4.4 1998 Stock Option Plan, previously filed as Exhibit 10.7 to the Company's Registration Statement No. 333-76153 on Form S-1 and incorporated herein by reference 4.5 2000 Stock Option Plan previously filed as Exhibit A to the Company's 2000 Proxy Statement and incorporated herein by reference 4.6 2000 Broad Based Employee Stock Option Plan previously filed as Exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999 and incorporated herein by reference 4.7* Form of Nonqualified Stock Option Agreement with Charles Peck 4.8* Form of Nonqualified Stock Option Agreement with Charles Peck 5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson 23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1) 23.2* Consent of KPMG LLP (independent public accountants) - ------------- * filed herewith EX-4.7 2 ex4_7.txt EXHIBIT 4.7 EXHIBIT 4.7 THEGLOBE.COM, INC. NONQUALIFIED STOCK OPTION AGREEMENT ----------------------------------- THIS AGREEMENT, made as of the 14th day of July, 2000 (the "Grant Date"), by and between theglobe.com, inc. (the "Company"), and Charles Peck (the "Optionee"). WHEREAS, the Options (as defined below) are being granted pursuant to the Employment Agreement, dated July 14, 2000, between the Company and the Optionee (the "Employment Agreement"); WHEREAS, the grant of the Options is an essential inducement to Optionee's entering into the Employment Agreement and the Optionee would not have entered into the Employment Agreement but for the grant of the Options; and WHEREAS the Options are not being granted pursuant to any of the Company's Stock Option Plans (the "Plans"). NOW, THEREFORE, the parties hereto agree as follows: 1. Grant of Options. ---------------- 1.1 The Company hereby grants to the Optionee the right and option (the "Option") to purchase all or any part of an aggregate of 250,000 whole Shares subject to, and in accordance with, the terms and conditions set forth in this Agreement. 1.2 The Option is not intended to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code. 1.3 This Agreement is subject to the Employment Agreement (the provisions of which are incorporated herein by reference) and, except as otherwise expressly set forth herein, the capitalized terms used in this Agreement shall have the same definitions as set forth in the Employment Agreement. 2. Purchase Price. -------------- The per share price at which the Optionee shall be entitled to purchase the Shares covered by the Option upon exercise shall be the closing price of a Share on the date hereof. 3. Duration of Option. ------------------ The Option shall be exercisable to the extent and in the manner provided herein for a period of ten (10) years from the Grant Date (the "Exercise Term"); provided, however, that the Option may be earlier terminated as provided in Section 6 hereof; provided, further, that the Option may, upon the death of the Optionee, be later exercised for up to one (1) year following the date of the Optionee's death if such death occurs prior to the tenth anniversary of the Grant Date. 4. Exercisability of Option. ------------------------ Unless otherwise provided in this Agreement and subject to the Optionee's continued employment with the Company on such dates, the Option shall vest and become exercisable within respect to 100% of the Shares covered thereby on the earlier to occur of (i) the ten (10) year anniversary of the Grant Date, (ii) the date upon which the Fair Market Value of a Share is $20 or higher for a continuous 30-day period and (iii) the occurrence of a Change in Control under section (1) of the definition of Change in Control in the Employment Agreement but only if the per Share acquisition price of voting securities of the Company is equal to or greater than $10. 5. Manner of Exercise and Payment. ------------------------------ 5.1 Subject to the terms and conditions of this Agreement, the Option may be exercised by written notice delivered in person or by mail to the Controller of the Company, at its principal executive offices, 120 Broadway, New York, NY 10271. Such notice shall be substantially in the form attached hereto as Exhibit A, shall state that the Optionee is electing to exercise the Option and the number of Shares in respect of which the Option is being exercised and shall be signed by the person or persons exercising the Option. If requested by the Committee, such person or persons shall (i) deliver this Agreement to the Secretary of the Company who shall endorse thereon a notation of such exercise and (ii) provide satisfactory proof as to the right of such person or persons to exercise the Option. 5.2 The notice of exercise described in Section 5.1 hereof shall be accompanied by the full purchase price for the Shares in respect of which the Option is being exercised, in cash, or, if permitted by the Committee, by transferring Shares, either actually or by attestation, to the Company having a Fair Market Value on the day preceding the date of exercise equal to the cash amount for which such Shares are substituted. In addition, Options may be exercised through a registered broker-dealer pursuant to such cashless exercise procedures which, from time to time, are deemed acceptable by the Committee. 5.3 Upon receipt of notice of exercise and full payment for the Shares in respect of which the Option is being exercised, the Company shall, subject to Section 16 hereof, take such action as may be necessary to effect the transfer to the Optionee of the number of Shares as to which such exercise was effective. No fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an Option and the number of Shares that may be purchased upon exercise shall be rounded to the nearest number of whole Shares. 5.4 The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any Shares subject to the Option until (i) the Option shall have been exercised pursuant to the terms of this Agreement and the Optionee shall have paid the full purchase price for the number of Shares in respect of which the Option was exercised, (ii) the Company shall have issued and delivered the Shares to the Optionee, and (iii) the Optionee's name shall have been entered as a stockholder of record on the books of the Company, whereupon the Optionee shall have full voting and other ownership rights with respect to such Shares, subject to the terms of this Agreement. 6. Termination of Option. Subject to Section 7 hereof, the Option shall terminate on the date which is the tenth anniversary of the Grant Date (or if later, the first anniversary of the date of the Optionee's death if such death occurs prior to such tenth anniversary), unless terminated earlier as follows: 6.1 If the employment of the Optionee by the Company is terminated upon expiration of the "Employment Term" (as defined in the Employment Agreement) after four (4) years, by the Optionee for any reason or by the Company for any reason other than death or Disability, the Optionee may for a period of three (3) months after such termination exercise his Option to the extent, and only to the extent, that such Option or portion thereof was exercisable as of the date of such termination or cessation, after which time the Option shall automatically terminate in full. 6.2 If the employment of the Optionee by the Company is terminated by reason of Disability, the Optionee may, for a period of twelve (12) months after such termination, exercise the Option to the extent, and only to the extent, that such Option or portion thereof was exercisable, as of the date of such termination, after which time the Option shall automatically terminate in full. 6.3 If the employment of the Optionee by the Company is terminated by reason of his death, the Option may be exercised at any time within twelve (12) months after the Optionee's death by the person or persons to whom such rights under the Option shall pass by will, or by the laws of descent or distribution, after which time the Option shall terminate in full; provided, however, that an Option may be exercised to the extent, and only to the extent, that the Option or portion thereof was exercisable on the date of death. If the Optionee dies within three (3) months after termination as described in Section 6.1 hereof or within twelve (12) months after termination as described in Section 6.2 hereof, the Option granted to the Optionee may be exercised at any time within twelve (12) months after the Optionee's death by the person or persons to whom such rights under the Option shall pass by will, or by the laws of descent or distribution, after which time the Option shall terminate in full; provided, however, that an Option may be exercised to the extent, and only to the extent, that the Option or portion thereof was exercisable on the date of termination. 6.4 The Option, to the extent not exercisable, shall terminate immediately upon the Optionee's termination of employment with the Company or a Subsidiary for any reason. 6.5 For purposes of this Section 6, the Optionee shall not be treated as terminated for so long as he is an employee of the Company or a Subsidiary. 7. Effect of Certain Transactions. ------------------------------ (a) In the event of a merger or consolidation of the Company with or into another corporation, or the sale of substantially all of the assets of the (a "Transaction"), the Option shall be assumed, or an equivalent option shall be substituted, by the Successor Corporation; provided, however, that, unless otherwise determined by the Committee, the Option shall remain subject to all of the conditions and restrictions which were applicable to the Option prior to such assumption or substitution. In the event that the Successor Corporation refuses to or does not assume the Option or substitute an equivalent option therefor, the Optionee shall have the right to exercise the Option as to all of the Shares subject to the Option as described below, including Shares as to which it would not otherwise be exercisable (a "Transaction Acceleration"). (b) In the event of a Transaction Acceleration, the Secretary of the Company shall notify the Optionee that the Option shall be fully exercisable for a period of fifteen (15) days (or such other period as shall be determined by the Board) from the date of such notice, and the Option shall terminate upon the expiration of such period. For the purposes of this paragraph, the Option shall be considered assumed if, following the merger or sale of assets, the option confers the right to purchase or receive upon exercise, for each Share subject to the Option immediately prior to the Transaction, the consideration (whether stock, cash, or other securities or property) received in the Transaction for each Share held on the effective date of the Transaction (and if holders were offered a choice of consideration, the type of such consideration as determined by the Board). (c) Notwithstanding anything to the contrary contained in Section 7, in the event of a Transaction Acceleration, or in the event the exercisability of any Options is accelerated in connection with any transaction involving the Company or its capital stock pursuant to Section 4 hereof, the Committee may, in its sole discretion, authorize the redemption of the unexercised portion of the Option for a consideration per Share equal to the excess of (i) the consideration payable per Share in connection with such transaction, over (ii) the purchase price per Share subject to the Option. 8. Non-Transferability. ------------------- The Option shall not be transferable other than by will or by the laws of descent and distribution or pursuant to a domestic relations order (within the meaning of Rule 16a-12 promulgated under the Exchange Act), and the Option shall be exercisable during the lifetime of the Optionee only by the Optionee or his guardian or legal representative. 9. Limitation on Rights. -------------------- Nothing in this Agreement shall be interpreted or construed to confer upon the Optionee any right with respect to continuance of employment by the Company or any of its affiliates, nor shall this Agreement interfere in any way with the right of the Company or any of its affiliates to terminate the Optionee's employment at any time. 10. Adjustments. ----------- 10.1 In the event of a Change in Capitalization, the Committee shall make appropriate adjustments, if any, to the number and class of Shares or other stock or securities subject to the Option and the purchase price for such Shares or other stock or securities. The Committee's adjustment shall be effective and final, binding and conclusive for all purposes of this Agreement. 10.2 If, by reason of a Change in Capitalization, the Optionee shall be entitled to exercise the Option with respect to new, additional or different shares of stock or securities, such new, additional or different shares shall thereupon be subject to all of the conditions and restrictions which were applicable to the Shares subject to the Option prior to such Change in Capitalization. 11. Effect of a Merger, Consolidation or Liquidation. ------------------------------------------------ Subject to Section 7 hereof, upon the occurrence of a Transaction, the Option shall continue in effect in accordance with its terms and the Optionee shall be entitled to receive in respect of all Shares subject to the Option, upon exercise of the Option, the same number and kind of stock, securities, cash, property or other consideration that each holder of Shares was entitled to receive in the Transaction in respect of a Share; provided, however, that such stock, securities, cash, property, or other consideration shall remain subject to all of the conditions and restrictions which were applicable to the Option prior to such Transaction. 12. Withholding of Taxes. -------------------- At such times as the Optionee recognizes taxable income in connection with the receipt of Shares hereunder (a "Taxable Event"), the Optionee shall pay to the Company an amount equal to the federal, state and local income taxes and other amounts as may be required by law to be withheld by the Company in connection with the Taxable Event (the "Withholding Taxes") prior to the issuance of such Shares. The Company shall have the right to deduct from any payment or distribution of cash to the Optionee an amount equal to the Withholding Taxes with respect to the Option. 13. Pooling Transactions. -------------------- Notwithstanding anything contained in this Agreement to the contrary, in the event of a Transaction which is also intended to constitute a Pooling Transaction, the Committee shall take such actions, if any, as are specifically recommended by an independent accounting firm retained by the Company to the extent reasonably necessary in order to assure that the Pooling Transaction will qualify as such, including but not limited to (a) deferring the vesting, exercise, payment, settlement or lapsing of restrictions with respect to the Option, (b) providing that the payment or settlement in respect of the Option be made in the form of cash, Shares or securities of a successor or acquirer of the Company, or a combination of the foregoing, and (c) providing for the extension of the term of any Option to the extent necessary to accommodate the foregoing, but not beyond the maximum term permitted for any Option. 14. Modification of Agreement. ------------------------- This Agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed by the parties hereto. 15. Severability. ------------ Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms. 16. Registration of Shares. ---------------------- 16.1 The Company shall, as soon as practicable after the date hereof, cause the Shares underlying the Option to be registered with the Securities and Exchange Commission. The Option is subject to the requirement that, if at any time the Committee determines, in its discretion, that the listing, registration or qualification of Shares issuable pursuant to this Agreement is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the issuance of Shares, no payment shall be made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions as acceptable to the Committee. The Board may make such changes to the Option as may be necessary or appropriate to comply with the rules and regulations of any governmental authority. 16.2 Notwithstanding anything contained in this Agreement to the contrary, in the event that the disposition of Shares acquired pursuant to this Agreement is not covered by a then current registration statement under the Securities Act of 1933, as amended (the "Securities Act"), and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act and Rule 144 or other regulations thereunder. The Committee may require the Optionee, as a condition precedent to receipt of Shares hereunder, to represent and warrant to the Company in writing that the Shares acquired by him are acquired without a view to any distribution thereof and will not be sold or transferred other than pursuant to an effective registration thereof under said Act or pursuant to an exemption applicable under the Securities Act or the rules and regulations promulgated thereunder. The certificates evidencing any of such Shares shall be appropriately amended to reflect their status as restricted securities as aforesaid. 17. Governing Law. ------------- 17.1 The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles thereof. 17.2 The obligation of the Company to sell or deliver Shares covered by the Option shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Committee. 18. Successors in Interest. ---------------------- This Agreement shall inure to the benefit of and be binding upon any successor to the Company. This Agreement shall inure to the benefit of the Optionee's legal representatives. All obligations imposed upon the Optionee and all rights granted to the Company under this Agreement shall be final, binding and conclusive upon the Optionee's heirs, executors, administrators and successors. 19. Resolution of Disputes. ---------------------- Any dispute or disagreement which may arise under, or as a result of, or in any way relate to, the interpretation, construction or application of this Agreement shall be determined by the Committee. Any determination made hereunder shall be final, binding and conclusive on the Optionee and the Company for all purposes. 20. Interpretation. -------------- The grant of the Option pursuant hereto is intended to comply with Rule 16b-3 promulgated under the Exchange Act and the Committee shall interpret and administer the provisions of this Agreement in a manner consistent therewith. Any provisions inconsistent with such rule shall be inoperative and shall not affect the validity of this Agreement. 21. Administration. -------------- 21.1 This Agreement shall be administered by the Committee. The Committee shall consist of at least two (2) Directors and may consist of the entire Board; provided, however, that if the Committee consists of less than the entire Board, each member shall be a Nonemployee Director. For purposes of the preceding sentence, if one or more members of the Committee is not a Nonemployee Director but recuses himself or herself or abstains from voting with respect to a particular action taken by the Committee, then the Committee, with respect to that action, shall be deemed to consist only of the members of the Committee who have not recused themselves or abstained from voting. 21.2 No member of the Committee shall be liable for any action, failure to act, determination or interpretation made in good faith with respect to this Agreement. The Company hereby agrees to indemnify each member of the Committee for all costs and expenses and, to the extent permitted by applicable law, any liability incurred in connection with defending against, responding to, negotiating for the settlement of or otherwise dealing with any claim, cause of action or dispute of any kind arising in connection with any actions in administering this Agreement or in authorizing or denying authorization to any transaction hereunder. 21.3 Subject to the express terms and conditions set forth herein, the Committee shall have the power from time to time: (a) to construe and interpret this Agreement and to establish, amend and revoke rules and regulations for the administration of this Agreement, including, but not limited to, correcting any defect or supplying any omission, or reconciling any inconsistency in this Agreement, in the manner and to the extent it shall deem necessary or advisable, including so that this Agreement complies with Rule 16b-3 under the Exchange Act, the Code to the extent applicable and other applicable law, and otherwise to make this Agreement fully effective. All decisions and determinations by the Committee in the exercise of this power shall be final, binding and conclusive upon the Company, its Subsidiaries, the Optionee, and all other persons having any interest herein; (b) to determine the duration and purposes for leaves of absence which may be granted to the Optionee on an individual basis without constituting a termination of employment or service for purposes of this Agreement; (c) to exercise its discretion with respect to the powers and rights granted to it as set forth in this Agreement; and (d) generally, to exercise such powers and to perform such acts as are deemed necessary or advisable to promote the best interests of the Company with respect to this Agreement. 22. Board Approval. -------------- The effectiveness of this Agreement and of the grant of the Option pursuant hereto is subject to the approval of the Board. 23. Definitions. ----------- For purposes of this Agreement: 23.1 "Board" means the Board of Directors of the Company. 23.2 "Cause" shall have the meaning ascribed to it in the Employment Agreement. 23.3 "Change in Capitalization" means any increase or reduction in the number of Shares, or any change (including, but not limited to, in the case of a spin-off, dividend or other distribution in respect of Shares, a change in value) in the Shares or exchange of Shares for a different number or kind of shares or other securities of the Company or another corporation, by reason of a reclassification, recapitalization, merger, consolidation, reorganization, spin-off, split-up, issuance of warrants or rights or debentures, stock dividend, stock split or reverse stock split, cash dividend, property dividend, combination or exchange of shares, repurchase of shares, change in corporate structure or otherwise. 23.4 "Code" means the Internal Revenue Code of 1986, as amended. 23.5 "Committee" means the committee, appointed by the Board from time to time, to administer the Plans and to perform the functions set forth therein. 23.6 "Director" means a director of the Company. 23.7 "Disability" shall have the meaning ascribed to it in the Employment Agreement. 23.8 "Exchange Act" means the Securities Exchange Act of 1934, as amended. 23.9 "Fair Market Value" on any date means the closing sales price of the Shares on such date on the principal national securities exchange on which such Shares are listed or admitted to trading, or, if such Shares are not so listed or admitted to trading, the average of the per Share closing bid price and per Share closing asked price on such date as quoted on the National Association of Securities Dealers Automated Quotation System or such other market in which such prices are regularly quoted, or, if there have been no published bid or asked quotations with respect to Shares on such date, the value established by the Committee in good faith. 23.10 "Nonemployee Director" means a director of the Company who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated under the Exchange Act. 23.11 "Pooling Transaction" means an acquisition of the Company in a transaction which is intended to be treated as a "pooling of interests" under generally accepted accounting principles. 23.12 "Shares" means the common stock, par value $0.001 per share, of the Company. 23.13 "Subsidiary" means any corporation which is a subsidiary corporation (within the meaning of Section 424(f) of the Code) with respect to the Company. 23.14 "Successor Corporation" means a corporation, or a parent or subsidiary thereof within the meaning of Section 424(a) of the Code, which issues or assumes a stock option in a Transaction. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. theglobe.com, inc. By: ---------------------------- Name: Title: Optionee By: ---------------------------- Charles Peck Address: Exhibit A NOTICE OF EXERCISE theglobe.com, inc. 120 Broadway New York, NY 10271 Date of Exercise: --------------- Ladies and Gentlemen: This constitutes notice under my Nonqualified Stock Option Agreement (the "Option Agreement") that I elect to purchase the number of shares for the price set forth below. Stock option dated: --------------------- Number of shares as to which option is exercised: --------------------- Certificates to be issued in name of: --------------------- Total exercise price: $ --------------------- Cash payment delivered herewith: $ --------------------- By this exercise, I agree (i) to provide such additional documents as you may require pursuant to the terms the Option Agreement, and (ii) to provide for the payment by me to you (in the manner designated by you) of your withholding obligation, if any, relating to the exercise of this option. Very truly yours, Charles Peck Address: EX-4.8 3 ex4_8.txt EXHIBIT 4.8 EXHIBIT 4.8 THEGLOBE.COM, INC. NONQUALIFIED STOCK OPTION AGREEMENT ----------------------------------- THIS AGREEMENT, made as of the 14th day of July, 2000 (the "Grant Date"), by and between theglobe.com, inc. (the "Company"), and Charles Peck (the "Optionee"). WHEREAS, the Options (as defined below) are being granted pursuant to the Employment Agreement, dated July 14, 2000, between the Company and the Optionee (the "Employment Agreement"); WHEREAS, the grant of the Options is an essential inducement to Optionee's entering into the Employment Agreement and the Optionee would not have entered into the Employment Agreement but for the grant of the Options; and WHEREAS the Options are not being granted pursuant to any of the Company's Stock Option Plans (the "Plans"). NOW, THEREFORE, the parties hereto agree as follows: 1. Grant of Options. ---------------- 1.1 The Company hereby grants to the Optionee the right and option (the "Option") to purchase all or any part of an aggregate of 1,000,000 whole Shares subject to, and in accordance with, the terms and conditions set forth in this Agreement. 1.2 The Option is not intended to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code. 1.3 This Agreement is subject to the Employment Agreement (the provisions of which are incorporated herein by reference) and, except as otherwise expressly set forth herein, the capitalized terms used in this Agreement shall have the same definitions as set forth in the Employment Agreement. 2. Purchase Price. -------------- The per share price at which the Optionee shall be entitled to purchase the Shares covered by the Option upon exercise shall be the closing price of a Share on the date hereof. 3. Duration of Option. ------------------ The Option shall be exercisable to the extent and in the manner provided herein for a period of ten (10) years from the Grant Date (the "Exercise Term"); provided, however, that the Option may be earlier terminated as provided in Section 6 hereof; provided, further, that the Option may, upon the death of the Optionee, be later exercised for up to one (1) year following the date of the Optionee's death if such death occurs prior to the tenth anniversary of the Grant Date. 4. Exercisability of Option. ------------------------ Unless otherwise provided in this Agreement and subject to the Optionee's continued employment with the Company on such dates, the Option shall vest and become exercisable on the dates and with respect to the number of Shares covered thereby, as follows: a. the Option shall become vested and exercisable with respect to 3% of the Shares covered thereby (30,000) on the Grant Date; b. the Option shall become vested and exercisable with respect to 6% of the Shares covered thereby (60,000) on the three (3) month anniversary of the Grant Date; c. the Option shall become vested and exercisable with respect to 7.5% of the Shares covered thereby (75,000) on the six (6) month anniversary of the Grant Date; and d. the Option shall thereafter become vested and exercisable with respect to 59,643 Shares covered thereby on the last business day of each three (3) month period. 5. Manner of Exercise and Payment. ------------------------------ 5.1 Subject to the terms and conditions of this Agreement, the Option may be exercised by written notice delivered in person or by mail to the Controller of the Company, at its principal executive offices, 120 Broadway, New York, NY 10271. Such notice shall be substantially in the form attached hereto as Exhibit A, shall state that the Optionee is electing to exercise the Option and the number of Shares in respect of which the Option is being exercised and shall be signed by the person or persons exercising the Option. If requested by the Committee, such person or persons shall (i) deliver this Agreement to the Secretary of the Company who shall endorse thereon a notation of such exercise and (ii) provide satisfactory proof as to the right of such person or persons to exercise the Option. 5.2 The notice of exercise described in Section 5.1 hereof shall be accompanied by the full purchase price for the Shares in respect of which the Option is being exercised, in cash, or, if permitted by the Committee, by transferring Shares, either actually or by attestation, to the Company having a Fair Market Value on the day preceding the date of exercise equal to the cash amount for which such Shares are substituted. In addition, Options may be exercised through a registered broker-dealer pursuant to such cashless exercise procedures which, from time to time, are deemed acceptable by the Committee. 5.3 Upon receipt of notice of exercise and full payment for the Shares in respect of which the Option is being exercised, the Company shall, subject to Section 16 hereof, take such action as may be necessary to effect the transfer to the Optionee of the number of Shares as to which such exercise was effective. No fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an Option and the number of Shares that may be purchased upon exercise shall be rounded to the nearest number of whole Shares. 5.4 The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any Shares subject to the Option until (i) the Option shall have been exercised pursuant to the terms of this Agreement and the Optionee shall have paid the full purchase price for the number of Shares in respect of which the Option was exercised, (ii) the Company shall have issued and delivered the Shares to the Optionee, and (iii) the Optionee's name shall have been entered as a stockholder of record on the books of the Company, whereupon the Optionee shall have full voting and other ownership rights with respect to such Shares, subject to the terms of this Agreement. 6. Termination of Option. Subject to Section 7 hereof, the Option shall terminate on the date which is the tenth anniversary of the Grant Date (or if later, the first anniversary of the date of the Optionee's death if such death occurs prior to such tenth anniversary), unless terminated earlier as follows: 6.1 If the employment of the Optionee by the Company is terminated upon expiration of the "Employment Term" (as defined in the Employment Agreement) after four (4) years, by the Company for Cause, or by the Optionee for any reason, the Optionee may for a period of three (3) months after such termination exercise his Option to the extent, and only to the extent, that such Option or portion thereof was exercisable as of the date of such termination or cessation, after which time the Option shall automatically terminate in full. 6.2 If the employment of the Optionee by the Company is terminated by reason of Disability, the Optionee may, for a period of twelve (12) months after such termination, exercise the Option to the extent, and only to the extent, that such Option or portion thereof was exercisable, as of the date of such termination, after which time the Option shall automatically terminate in full. 6.3 If the employment of the Optionee by the Company is terminated by the Company for any reason other than for Cause, Disability or death a. prior to the two (2) year anniversary of the Grant Date, the portion of the Option scheduled to vest in accordance with the terms of Section 4 hereof within the six (6) month period immediately following such termination, shall become immediately vested and exercisable as of the date of such termination, or b. on or after the two (2) year anniversary of the Grant Date, the unexercisable portion of the Option shall become immediately vested and exercisable as of the date of such termination, and the Optionee may for a period of three (3) months after such termination exercise his Option to the extent, and only to the extent, that such Option or portion thereof was exercisable as of the date of such termination (after giving effect to Section 6.3(a) or 6.3(b) as applicable) after which time the Option shall automatically terminate in full. 6.4 If the employment of the Optionee by the Company is terminated by reason of his death, the Option may be exercised at any time within twelve (12) months after the Optionee's death by the person or persons to whom such rights under the Option shall pass by will, or by the laws of descent or distribution, after which time the Option shall terminate in full; provided, however, that an Option may be exercised to the extent, and only to the extent, that the Option or portion thereof was exercisable on the date of death. If the Optionee dies within twelve (12) months after termination as described in Section 6.2 hereof or within three (3) months after termination as described in Section 6.3 hereof, the Option granted to the Optionee may be exercised at any time within twelve (12) months after the Optionee's death by the person or persons to whom such rights under the Option shall pass by will, or by the laws of descent or distribution, after which time the Option shall terminate in full; provided, however, that an Option may be exercised to the extent, and only to the extent, that the Option or portion thereof was exercisable on the date of termination. 6.5 The Option, to the extent not exercisable, shall terminate immediately upon the Optionee's termination of employment with the Company or a Subsidiary for any reason. 6.6 For purposes of this Section 6, the Optionee shall not be treated as terminated for so long as he is an employee of the Company or a Subsidiary. 7. Effect of Certain Transactions. ------------------------------ 7.1 In the event of a merger or consolidation of the Company with or into another corporation, or the sale of substantially all of the assets of the Company after which the Shares cease to be listed or admitted for trading on the principal national securities exchange on which such Shares were listed or admitted to trading immediately prior thereto (a "Transaction"), the Option shall be assumed, or an equivalent option shall be substituted, by the Successor Corporation; provided, however, that, unless otherwise determined by the Committee, the Option shall remain subject to all of the conditions and restrictions which were applicable to the Option prior to such assumption or substitution. In the event that the Successor Corporation refuses to or does not assume the Option or substitute an equivalent option therefor, the Optionee shall have the right to exercise the Option as to all of the Shares subject to the Option as described below, including Shares as to which it would not otherwise be exercisable (a "Transaction Acceleration"). 7.2 In the event of a Transaction Acceleration, the Secretary of the Company shall notify the Optionee that the Option shall be fully exercisable for a period of fifteen (15) days (or such other period as shall be determined by the Board) from the date of such notice, and the Option shall terminate upon the expiration of such period. For the purposes of this paragraph, the Option shall be considered assumed if, following the Transaction, the Option confers the right to purchase or receive upon exercise, for each Share subject to the Option immediately prior to the Transaction, the consideration (whether stock, cash, or other securities or property) received in the Transaction for each Share held on the effective date of the Transaction (and if holders were offered a choice of consideration, the type of such consideration as determined by the Board). 7.3 Notwithstanding anything to the contrary contained in this Section 7, in the event of a Transaction Acceleration the Board may, in its sole discretion, authorize the redemption of the unexercised portion of the Option for a consideration per Share equal to the excess of (i) the consideration payable per Share in connection with such Transaction, over (ii) the purchase price per Share subject to the Option. 7.4 In the event of a Change in Control immediately after which the Shares remain listed and admitted for trading on the principal national securities exchange on which such Shares were listed or admitted to trading immediately prior thereto, the Option shall remain subject to all of the conditions and restrictions which were applicable to the Option prior to such Change in Control. In the event that the Optionee's employment with the Company is terminated by the Company without Cause within the six (6) month period immediately following such Change in Control, the Option shall become immediately and fully vested and exercisable as of such termination of employment and remain exercisable for the three (3) month period immediately following such termination of employment, after which it shall terminate in full. 8. Non-Transferability. ------------------- The Option shall not be transferable other than by will or by the laws of descent and distribution or pursuant to a domestic relations order (within the meaning of Rule 16a-12 promulgated under the Exchange Act), and the Option shall be exercisable during the lifetime of the Optionee only by the Optionee or his guardian or legal representative. 9. Limitation on Rights. -------------------- Nothing in this Agreement shall be interpreted or construed to confer upon the Optionee any right with respect to continuance of employment by the Company or any of its affiliates, nor shall this Agreement interfere in any way with the right of the Company or any of its affiliates to terminate the Optionee's employment at any time. 10. Adjustments. ----------- 10.1 In the event of a Change in Capitalization, the Committee shall make appropriate adjustments, if any, to the number and class of Shares or other stock or securities subject to the Option and the purchase price for such Shares or other stock or securities. The Committee's adjustment shall be effective and final, binding and conclusive for all purposes of this Agreement. 10.2 If, by reason of a Change in Capitalization, the Optionee shall be entitled to exercise the Option with respect to new, additional or different shares of stock or securities, such new, additional or different shares shall thereupon be subject to all of the conditions and restrictions which were applicable to the Shares subject to the Option prior to such Change in Capitalization. 11. Effect of a Merger, Consolidation or Liquidation. ------------------------------------------------ Subject to Section 7 hereof, upon the occurrence of a Change in Control or a Transaction, the Option shall continue in effect in accordance with its terms and the Optionee shall be entitled to receive in respect of all Shares subject to the Option, upon exercise of the Option, the same number and kind of stock, securities, cash, property or other consideration that each holder of Shares was entitled to receive in such Transaction or Change in Control in respect of a Share; provided, however, that such stock, securities, cash, property, or other consideration shall remain subject to all of the conditions and restrictions which were applicable to the Option prior to such Transaction or Change in Control. 12. Withholding of Taxes. -------------------- At such times as the Optionee recognizes taxable income in connection with the receipt of Shares hereunder (a "Taxable Event"), the Optionee shall pay to the Company an amount equal to the federal, state and local income taxes and other amounts as may be required by law to be withheld by the Company in connection with the Taxable Event (the "Withholding Taxes") prior to the issuance of such Shares. The Company shall have the right to deduct from any payment or distribution of cash to the Optionee an amount equal to the Withholding Taxes with respect to the Option. 13. Pooling Transactions. -------------------- Notwithstanding anything contained in this Agreement to the contrary, in the event of a Transaction which is also intended to constitute a Pooling Transaction, the Committee shall take such actions, if any, as are specifically recommended by an independent accounting firm retained by the Company to the extent reasonably necessary in order to assure that the Pooling Transaction will qualify as such, including but not limited to (a) deferring the vesting, exercise, payment, settlement or lapsing of restrictions with respect to the Option, (b) providing that the payment or settlement in respect of the Option be made in the form of cash, Shares or securities of a successor or acquirer of the Company, or a combination of the foregoing, and (c) providing for the extension of the term of any Option to the extent necessary to accommodate the foregoing, but not beyond the maximum term permitted for any Option. 14. Modification of Agreement. ------------------------- This Agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed by the parties hereto. 15. Severability. ------------ Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms. 16. Registration of Shares. ---------------------- 16.1 The Company shall, as soon as practicable after the date hereof, cause the Shares underlying the Option to be registered with the Securities and Exchange Commission. The Option is subject to the requirement that, if at any time the Committee determines, in its discretion, that the listing, registration or qualification of Shares issuable pursuant to this Agreement is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the issuance of Shares, no payment shall be made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions as acceptable to the Committee. The Board may make such changes to the Option as may be necessary or appropriate to comply with the rules and regulations of any governmental authority. 16.2 Notwithstanding anything contained in this Agreement to the contrary, in the event that the disposition of Shares acquired pursuant to this Agreement is not covered by a then current registration statement under the Securities Act of 1933, as amended (the "Securities Act"), and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act and Rule 144 or other regulations thereunder. The Committee may require the Optionee, as a condition precedent to receipt of Shares hereunder, to represent and warrant to the Company in writing that the Shares acquired by him are acquired without a view to any distribution thereof and will not be sold or transferred other than pursuant to an effective registration thereof under said Act or pursuant to an exemption applicable under the Securities Act or the rules and regulations promulgated thereunder. The certificates evidencing any of such Shares shall be appropriately amended to reflect their status as restricted securities as aforesaid. 17. Governing Law. ------------- 17.1 The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles thereof. 17.2 The obligation of the Company to sell or deliver Shares covered by the Option shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Committee. 18. Successors in Interest. ---------------------- This Agreement shall inure to the benefit of and be binding upon any successor to the Company. This Agreement shall inure to the benefit of the Optionee's legal representatives. All obligations imposed upon the Optionee and all rights granted to the Company under this Agreement shall be final, binding and conclusive upon the Optionee's heirs, executors, administrators and successors. 19. Resolution of Disputes. ---------------------- Any dispute or disagreement which may arise under, or as a result of, or in any way relate to, the interpretation, construction or application of this Agreement shall be determined by the Committee. Any determination made hereunder shall be final, binding and conclusive on the Optionee and the Company for all purposes. 20. Interpretation. -------------- The grant of the Option pursuant hereto is intended to comply with Rule 16b-3 promulgated under the Exchange Act and the Committee shall interpret and administer the provisions of this Agreement in a manner consistent therewith. Any provisions inconsistent with such rule shall be inoperative and shall not affect the validity of this Agreement. 21. Administration. -------------- 21.1 This Agreement shall be administered by the Committee. The Committee shall consist of at least two (2) Directors and may consist of the entire Board; provided, however, that if the Committee consists of less than the entire Board, each member shall be a Nonemployee Director. For purposes of the preceding sentence, if one or more members of the Committee is not a Nonemployee Director but recuses himself or herself or abstains from voting with respect to a particular action taken by the Committee, then the Committee, with respect to that action, shall be deemed to consist only of the members of the Committee who have not recused themselves or abstained from voting. 21.2 No member of the Committee shall be liable for any action, failure to act, determination or interpretation made in good faith with respect to this Agreement. The Company hereby agrees to indemnify each member of the Committee for all costs and expenses and, to the extent permitted by applicable law, any liability incurred in connection with defending against, responding to, negotiating for the settlement of or otherwise dealing with any claim, cause of action or dispute of any kind arising in connection with any actions in administering this Agreement or in authorizing or denying authorization to any transaction hereunder. 21.3 Subject to the express terms and conditions set forth herein, the Committee shall have the power from time to time: (a) to construe and interpret this Agreement and to establish, amend and revoke rules and regulations for the administration of this Agreement, including, but not limited to, correcting any defect or supplying any omission, or reconciling any inconsistency in this Agreement, in the manner and to the extent it shall deem necessary or advisable, including so that this Agreement complies with Rule 16b-3 under the Exchange Act, the Code to the extent applicable and other applicable law, and otherwise to make this Agreement fully effective. All decisions and determinations by the Committee in the exercise of this power shall be final, binding and conclusive upon the Company, its Subsidiaries, the Optionee, and all other persons having any interest herein; (b) to determine the duration and purposes for leaves of absence which may be granted to the Optionee on an individual basis without constituting a termination of employment or service for purposes of this Agreement; (c) to exercise its discretion with respect to the powers and rights granted to it as set forth in this Agreement; and (d) generally, to exercise such powers and to perform such acts as are deemed necessary or advisable to promote the best interests of the Company with respect to this Agreement. 22. Board Approval. -------------- The effectiveness of this Agreement and of the grant of the Option pursuant hereto is subject to the approval of the Board. 23. Definitions. ----------- For purposes of this Agreement: 23.1 "Board" means the Board of Directors of the Company. 23.2 "Cause" shall have the meaning ascribed to it in the Employment Agreement. 23.3 "Change in Capitalization" means any increase or reduction in the number of Shares, or any change (including, but not limited to, in the case of a spin-off, dividend or other distribution in respect of Shares, a change in value) in the Shares or exchange of Shares for a different number or kind of shares or other securities of the Company or another corporation, by reason of a reclassification, recapitalization, merger, consolidation, reorganization, spin-off, split-up, issuance of warrants or rights or debentures, stock dividend, stock split or reverse stock split, cash dividend, property dividend, combination or exchange of shares, repurchase of shares, change in corporate structure or otherwise. 23.4 A "Change in Control" shall mean the occurrence of any of the following: (a) An acquisition (other than directly from the Company) of any voting securities of the Company (the "Voting Securities") by any "Person" (as the term person is used for purposes of Section 13(d) or 14(d) of the Exchange Act), immediately after which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent (50%) or more of the then outstanding Shares or the combined voting power of the Company's then outstanding Voting Securities; provided, however, in determining whether a Change in Control has occurred pursuant to this Section 23.4(a), Shares or Voting Securities which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of this definition, a "Majority-Owned Subsidiary"), (ii) the Company or its Majority-Owned Subsidiaries, or (iii) any Person in connection with a "Non-Control Transaction" (as hereinafter defined); (b) The consummation of: (i) A merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued, unless such merger, consolidation or reorganization is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or reorganization with or into the Company or in which securities of the Company are issued where: (A) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such merger, consolidation or reorganization, at least sixty percent (60%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the "Surviving Corporation") in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation or reorganization, and (B) no Person other than (1) the Company, (2) any Majority-Owned Subsidiary, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company or any Majority-Owned Subsidiary, or (4) any Person who, immediately prior to such merger, consolidation or reorganization had Beneficial Ownership of thirty percent (30%) or more of the then outstanding Voting Securities or Shares, has Beneficial Ownership of thirty percent (30%) or more of the combined voting power of the Surviving Corporation's then outstanding voting securities or its common stock. (ii) A complete liquidation or dissolution of the Company; or (iii) The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Majority-Owned Subsidiary or the distribution to the Company's stockholders of the stock of a Majority-Owned Subsidiary or any other assets). Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the "Subject Person") acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting Securities by the Company which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or Voting Securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting Securities which increases the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur. 23.5 "Code" means the Internal Revenue Code of 1986, as amended. 23.6 "Committee" means the committee, appointed by the Board from time to time, to administer the Plans and to perform the functions set forth therein. 23.7 "Director" means a director of the Company. 23.8 "Disability" shall have the meaning ascribed to it in the Employment Agreement. 23.9 "Exchange Act" means the Securities Exchange Act of 1934, as amended. 23.10 "Fair Market Value" on any date means the closing sales price of the Shares on such date on the principal national securities exchange on which such Shares are listed or admitted to trading, or, if such Shares are not so listed or admitted to trading, the average of the per Share closing bid price and per Share closing asked price on such date as quoted on the National Association of Securities Dealers Automated Quotation System or such other market in which such prices are regularly quoted, or, if there have been no published bid or asked quotations with respect to Shares on such date, the value established by the Committee in good faith. 23.11 "Nonemployee Director" means a director of the Company who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated under the Exchange Act. 23.12 "Pooling Transaction" means an acquisition of the Company in a transaction which is intended to be treated as a "pooling of interests" under generally accepted accounting principles. 23.13 "Shares" means the common stock, par value $0.001 per share, of the Company. 23.14 "Subsidiary" means any corporation which is a subsidiary corporation (within the meaning of Section 424(f) of the Code) with respect to the Company. 23.15 "Successor Corporation" means a corporation, or a parent or subsidiary thereof within the meaning of Section 424(a) of the Code, which issues or assumes a stock option in a Transaction. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. theglobe.com, inc. By: ------------------------------ Name: Title: Optionee By: ------------------------------ Charles Peck Address: Exhibit A NOTICE OF EXERCISE theglobe.com, inc. 120 Broadway New York, NY 10271 Date of Exercise: -------------- Ladies and Gentlemen: This constitutes notice under my Nonqualified Stock Option Agreement (the "Option Agreement") that I elect to purchase the number of shares for the price set forth below. Stock option dated: --------------------- Number of shares as to which option is exercised: --------------------- Certificates to be issued in name of: --------------------- Total exercise price: $ -------------------- Cash payment delivered herewith: $ -------------------- By this exercise, I agree (i) to provide such additional documents as you may require pursuant to the terms the Option Agreement, and (ii) to provide for the payment by me to you (in the manner designated by you) of your withholding obligation, if any, relating to the exercise of this option. Very truly yours, Charles Peck Address: EX-5.1 4 ex5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 [Letterhead of Fried, Frank, Harris, Shriver & Jacobson, a partnership including professional corporations] April 26, 2001 theglobe.com, inc. 31 West 21st Street New York, New York 10010 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We are acting as special counsel to the theglobe.com, inc., a Delaware corporation (the "Company") in connection with the registration, pursuant to a Registration Statement on Form S-8 (the "Registration Statement"), of an aggregate of 3,600,000 shares (the "Shares") of Common Stock, par value $.001 per share, of the Company, issuable pursuant to (i) the Company's 2000 Stock Option Plan (500,000 shares); (ii) the Company's 2000 Broad Based Employee Stock Option Plan (850,000 shares); (iii) the Company's 1998 Stock Option Plan, as amended and restated (1,000,000 shares); and (iv) options granted to Charles Peck under Nonqualified Stock Option Agreements dated July 14, 2000 (1,250,000 shares). With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part except to the extent otherwise expressly stated, and we express no opinion with respect to the subject matter or accuracy of such assumptions or items relied upon. In connection with this opinion, we have (i) investigated such questions of law, (ii) examined originals or certified, conformed or reproduction copies of such agreements, instruments, documents and records of the Company, such certificates of public officials and such other documents, and (iii) received such information from officers and representatives of the Company as we have deemed necessary or appropriate for the purposes of this opinion. In all such examinations, we have assumed the legal capacity of all natural persons executing documents, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified documents of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to the opinions expressed herein, we have relied upon, and assume the accuracy of, certificates and oral or written statements and other information of or from representatives of the Company and others. Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the issuance of the Shares has been duly authorized and that such Shares, when issued, paid for and delivered as authorized, will be validly issued, fully paid and non-assessable. The opinions expressed herein are limited to the federal laws of the United States of America and, to the extent relevant to the opinions expressed herein, the General Corporation Law of the State of Delaware (the "DGCL") and applicable provisions of the Delaware Constitution, in each case as currently in effect, and reported judicial decisions interpreting the DGCL and the Delaware Constitution. The opinions expressed herein are given as of the date hereof, and we undertake no obligation to supplement this letter if any applicable laws change after the date hereof or if we become aware of any facts that might change the opinions expressed herein after the date hereof or for any other reason. We hereby consent to the filing of this opinion as an exhibit to the Form S-8 relating to the registration of the Shares. In giving such consent, we do not hereby admit that we are in the category of such persons whose consent is required under Section 7 of the Securities Act of 1933, as amended. The opinions expressed herein are solely for your benefit in connection with the Form S-8 and may not be relied on in any manner or for any purpose by any other person or entity. Very truly yours, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON By: \s\ Stuart H. Gelfond ------------------------------------ Stuart H. Gelfond EX-23 5 exh23_2.txt EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS The Board of Directors theglobe.com, inc.: We consent to incorporation by reference in the registration statement on Form S-8 of theglobe.com, inc. of our report dated February 26, 2001, relating to the consolidated balance sheets of theglobe.com, inc. and subsidiaries as of December 31, 2000 and 1999, and the related consolidated statements of operations, stockholders' equity and comprehensive loss, and cash flows for each of the years in the three-year period ended December 31, 2000, which report appears in the 2000 Annual Report on Form 10-K of theglobe.com, inc., dated April 2, 2001. Our report dated February 26, 2001, contains an explanatory paragraph that states that the Company has suffered recurring losses from operations since inception that raises substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty. /s/ KPMG LLP New York, New York April 26, 2001 -----END PRIVACY-ENHANCED MESSAGE-----