Stock Purchase Agreement - eUniverse Inc., Falcon Ventures Inc. d/b/a DVDWave.com and Take-Two Interactive Software Inc.
December 16, 1999
eUniverse, Inc.
101 North Plains Industrial Road
Wallingford, Connecticut 06492
Attention: Brad Greenspan, Chief Executive Officer
Dear Mr. Greenspan:
This letter confirms the agreement of the parties hereto with respect
to (i) the acquisition by eUniverse, Inc. ("eUniverse") of all of the issued and
outstanding capital stock (the "Falcon Shares") of Falcon Ventures, Inc. d/b/a
DVDWave.com ("Falcon") from Take-Two Interactive Software, Inc. ("T2") and (ii)
the purchase by T2 of 400,000 shares of Common Stock ("eUniverse Common Stock")
from eUniverse. The principal terms of the acquisition of the Falcon Shares by
eUniverse and the purchase of eUniverse Common Stock by T2 (collectively, the
"Transactions") would be as follows:
I. The closing of the purchase by eUniverse of the Falcon Shares (the
"Closing") shall occur within five (5) business days from SEC Effectiveness (as
defined below). At the Closing, eUniverse shall purchase all of the Falcon
Shares free and clear of all liens, claims and encumbrances. The purchase price
to be paid by eUniverse for the Falcon Shares shall be 310,000 shares of validly
issued, fully paid and non-assessable eUniverse Common Stock.
II. At the Closing, T2 shall purchase 400,000 shares of validly issued,
fully paid and non-assessable eUniverse Common Stock for $2,000,000 in cash (or
$5.00 per share). Subject to the execution of a mutually agreeable cooperative
advertising plan agreement (the "Advertising Plan"), T2 shall have an option,
exercisable in whole or in part, during the period commencing on the date hereof
until June 1, 2000, to purchase up to an additional 200,000 validly issued,
fully paid and non-assessable shares of eUniverse Common Stock (the "Option
Shares") for an aggregate purchase price of $1,000,000 (or $5.00 per share). All
eUniverse Common Stock to be purchased or issued hereunder shall be free and
clear of all liens, claims and encumbrances.
III. The parties hereto intend to enter into definitive Stock Purchase
Agreements within thirty (30) days following the date hereof containing
reasonable representations and warranties (which would survive the Closing),
covenants mutually agreed to by the parties, reciprocal indemnification
provisions by eUniverse (on one hand) and T2 (on the other hand),
non-competition provisions, closing conditions and mutually agreed upon
limitations on certain business conduct by Falcon, including, but not limited
to, the following:
T2 hereby represents and warrants to eUniverse that (i) Falcon is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is duly qualified to transact business in the State
of California; (ii) the authorized capital stock of Falcon consists of 1,000,000
shares of Common Stock, all of which shares are issued and outstanding and are
held by T2; (iii) Falcon has no other securities outstanding or options or
rights to purchase any of its securities; (iv) the execution and delivery of
this agreement by Falcon and T2 has been duly authorized and this agreement is a
valid and binding obligation of Falcon and T2 enforceable in accordance with its
terms; (v) this agreement does not violate or conflict with any other agreement
to which Falcon or T2 is a party or require the consent of any third-party
(except for the consent of T2's lender, which T2 agrees to use its best efforts
to obtain); (vi) attached hereto are Falcon's financial statements at October
31, 1999 (the "Financial Statement Date") which are true and accurate in all
material respects and present fairly the financial position and the results of
operation of Falcon (after eliminating intercompany payables); (vii) Falcon has
no material liabilities of any nature whatsoever which are not disclosed in such
financial statements other than liabilities incurred in the ordinary course of
business following the Financial Statement Date; (viii) Falcon is not a party to
any pending litigation and neither T2 nor Falcon is aware of any threatened
litigation with respect to Falcon; (ix) the Falcon Shares when paid for as
contemplated hereby will be validly issued, fully paid and non-assessable and
free and clear of any liens, claims or encumbrances, and eUniverse will
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acquire good title to the Falcon Shares; (x) Falcon owns or has rights to all
properties and assets necessary to conduct its business; and (xi) T2 represents
that it is taking the eUniverse Common Stock for investment purposes only and
not with a view toward the distribution thereof.
eUniverse hereby represents and warrants to T2 that (i) the information
(including the financial statements and notes thereto) contained in its
Registration Statement on Form 10 (No. 0-26355), (the "Form 10 Registration
Statement") is true, accurate and complete in all material respects and does not
contain an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading; (ii)
the shares of eUniverse Common Stock to be purchased by T2 when issued and paid
for as contemplated hereby will be duly and validly authorized, fully-paid and
non-assessable, and T2 will acquire good title to the shares; (iii) except with
respect to a potential claim by Isoscelese Fund, there is no litigation pending
or threatened against eUniverse or any of its subsidiaries (other than as
disclosed in the Form 10 Registration Statement); (iv) the execution and
delivery of this agreement by eUniverse has been duly authorized and this
agreement constitutes the valid and binding obligation of eUniverse enforceable
in accordance with its terms; (v) eUniverse has no material liabilities of any
nature whatsoever which are not disclosed in the Form 10 Registration Statement,
including any material contingent liability resulting from the issuance of its
securities; (vi) eUniverse is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada and is qualified in each
jurisdiction necessary for the conduct of its business; (vii) eUniverse's
fully-diluted capital stock and capitalization is as set forth in the Form 10
Registration Statement; (viii) eUniverse satisfies the stock and quantitative
requirements for listing on the Nasdaq Small Cap Market; and (ix) this agreement
does not violate or conflict with any agreement to which eUniverse is a party or
require the consent of any third party.
Each of the parties hereto hereby indemnifies and agrees to hold
harmless the other party hereto and its respective affiliates from and against
any and all losses, obligations, liabilities, claims, damages, costs and
expenses (including reasonable attorneys' fees) which any of them may sustain,
suffer and incur and which arise or out of, are caused by, relate to, or result
or occur from or in connection with any breach of any of the representations,
warranties or covenants made by such party. The foregoing indemnity shall apply
to claims by third parties and direct claims by T2 or eUniverse. Notwithstanding
the foregoing, the indemnification obligations shall not be applicable except to
the extent that the aggregate of all indemnificable amounts sought against the
indemnifying party exceeds $100,000 and the maximum liability of each
indemnifying party shall not exceed the amount of consideration received
pursuant to this agreement. The representations, warranties and covenants set
forth above shall survive the Closing.
From the execution hereof until the Closing, Falcon shall conduct its
business operations in the ordinary course and in a manner consistent with past
practice. For a period of one (1) year following the Closing, neither T2 nor any
of its affiliates shall engage in any activities competitive with the business
conducted by Falcon on the date of Closing.
IV. The Closing is subject to (i) the Form 10 Registration Statement
being declared effective by the Securities and Exchange Commission ("SEC
Effectiveness") no later than January 30, 2000 (provided that T2's obligation to
purchase the eUniverse Common Stock is subject to the continued listing of the
eUniverse securities on the Nasdaq OTC Bulletin Board); (ii) the representations
and warranties of the parties shall be true in all material respects on the
Closing Date; (iii) Falcon shall have working capital of at least $75,000
(Falcon shall eliminate intercompany payables by restructuring or otherwise and
not allocate overhead for Jack of All Games employees); (iv) all consents of
third parties necessary in the reasonable judgment of the parties (including the
required consent of the holders of Series A Preferred Stock to amend eUniverse's
Designation of Series A Preferred Stock) shall be obtained; and (v) there shall
not have occurred after the date hereof, in the reasonable judgment of the
parties, a material adverse change in the financial or business condition of
either eUniverse or Falcon. In addition, the obligation of T2 to purchase the
eUniverse Common Stock shall be subject to consummation of the acquisition of
the Falcon Shares by eUniverse.
V. Each of the parties hereto hereby represents and warrants to the
other parties hereto that it has done nothing to incur any obligation or
liability for a finder's fee, commission, brokerage fee or like payment in
connection with the transactions contemplated hereby, except for eUniverse's
obligation to Gerard, Klauer & Mattison & Co, Inc. Each of eUniverse and T2
shall bear its own expenses in connection with the Transactions.
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VI. As soon as reasonably practicable following the Closing, but in no
event later than five (5) business days following the Closing, eUniverse shall
include all of the shares of eUniverse Common Stock purchased by T2 (including
any Option Shares), in its currently pending Registration Statement on Form S-1
(No. 333-86959) filed under the Securities Act of 1933 (the "Act") and cause
such Registration Statement to be declared effective by the Securities and
Exchange Commission as soon as practicable under the Act but in no event later
than thirty (30) days following the Closing. T2 shall have the same rights with
respect to the registration and sale of its shares of eUniverse Common Stock as
the holders of the Series A Preferred Stock included in such Registration
Statement; provided, however, that T2 shall have the ability to sell up to
100,000 shares of eUniverse Common Stock without any restriction following the
effectiveness of such Registration Statement; provided, further, that eUniverse
shall have a five (5) day option to repurchase such shares at a price equal to
the greater of market or a bona fide offer. Subject to entering into the
Advertising Plan, T2 shall be granted a right for a period of three years from
the Closing to designate a member to eUniverse's Board of Directors. eUniverse
will nominate and cause T2's designee to become elected.
VII. Each party and its representatives shall be given reasonable
access, during normal business hours to facilities, employees, books and records
of the other party for the purpose of conducting a "due diligence"
investigation. Each party agrees that all confidential information which is
obtained by it in connection with the foregoing shall be maintained by it on a
confidential basis. Each party shall cooperate fully in connection with any
investigation hereunder.
VIII. Prior to the Closing, the parties shall cooperate with each other
in connection with the issuance of any press release or otherwise making any
public statement with respect to the contents of this document or the
transactions contemplated hereby, and none of the parties hereto shall issue any
such press release or make any such public statement prior to such consultation,
except as my be required by law or applicable stock exchange or NASDAQ
regulations.
IX. The parties agree to negotiate in good faith definitive Stock
Purchase Agreements and other agreements in connection with the transactions
contemplated hereby. Unless and until the parties are able to negotiate
definitive Stock Purchase Agreements, this Agreement will constitute (i) a
binding agreement between the parties, and (ii) the entire agreement between the
parties regarding the subject matter thereof, and will be governed by the
internal laws of the State of New York.
Please acknowledge your agreement by signing the enclosed copy of this
letter and returning it to the undersigned.
Very truly yours,
AGREED AND ACCEPTED:
eUNIVERSE, INC. TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Brad Greenspan By: /s/ Ryan A. Brant
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Brad Greenspan Ryan A. Brant
Chief Executive Officer Chief Executive Officer
FALCON VENTURES, INC.
By: /s/ Larry Muller
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Larry Muller
Chief Financial Officer