Exhibit 10.33
eUniverse, Inc.
February 20, 2000
Christian Walter
5945 Jessup Road
Cincinnati, OH 45247
Re: Purchase of JustSayWow.com by eUniverse, Inc. ("EUI")
From Christian Walter of Cincinnati, Ohio ("Seller")
Dear Christian:
This letter agreement (the "Agreement") sets forth the terms of EUI's
purchase of all of the assets, including, without limitation, the physical
assets, good will, web site contents (collectively, the "Assets"), used to
conduct the on-line interactive entertainment business owned by Seller that is
known as JustSayWow, and presently located at the URL: http://www.justsaywow.com
(the "Business").
The consummation of the transactions set forth in this Agreement (the
"Closing") shall be effective as of 12:01 a.m. Stamford, Connecticut on the date
that all of the Closing conditions are satisfied (the "Closing Date"), as
reasonably determined by the Company.
On the Closing Date, Seller shall sell, assign, transfer, convey and
deliver to EUI and EUI agrees to purchase and accept from the Seller, all right,
title and interest in and to all of the Assets, free and clear of all liens,
encumbrances or security interests. The purchase price for the purchased Assets
shall be Three Hundred Thousand Dollars ($300,000.00) (the "Purchase Price")
payable in cash and shares of common stock of EUI (the "EUI Shares"), as
follows:
1. On the Closing Date, EUI shall pay to Seller (i) the amount of One
Hundred Thousand Dollars ($100,000.00) in cash, and (ii) the amount of One
Hundred Thousand Dollars ($100,000.00) in EUI Shares at a share price equal to
the average of the closing price of the EUI Shares on the five (5) trading days
immediately preceding the Closing Date (collectively, the "Downpayment");
2. During each of the ten (10) consecutive months beginning with the
second full calendar month following the Closing Date, EUI shall pay to Seller
the amount of Ten Thousand and No/100 Dollars ($10,000.00) in cash on the 1st
day of each such month.
No fractional shares of EUI Shares will be issued, no cash will be paid
in lieu of fractional shares, and the total number of EUI Shares issued to
Seller shall be rounded to the nearest whole number.
Seller agrees to take all action necessary to transfer ownership to EUI
of Seller's telephone numbers, web site content and all domain names for the
Business, free and clear of any liens or encumbrances.
Letter Agreement
Page 2
The parties acknowledge and agree that this is a sale of Assets and
that, except as otherwise specifically set forth in this Agreement, EUI shall
neither assume nor be liable for any contracts, debts, warranties, obligations,
undertakings or liabilities whatsoever of the Seller, and Seller shall remain
solely liable for any and all claims against the Business or its assets and all
liabilities and accounts payable arising out of Seller's operation of the
Business, acts or omissions prior to the Closing.
Seller hereby represents and warrants to EUI that (1) this Agreement is
a valid and binding obligation of Seller enforceable in accordance with its
terms and that there are no agreements or encumbrances of the Seller with
respect to the Business or the Assets; (2) this Agreement does not violate or
conflict with any other agreement to which Seller is a party or require the
consent of any third-party; (3) attached hereto is Seller's financial
information which is true and accurate in all respects and present fairly the
financial position and the results of operation of the Business; (4) Seller has
no material liabilities of any nature whatsoever which are not disclosed in such
financial information since the date on the financial information; (5) all books
and records of Seller which have been provided to EUI for inspection are true,
correct and complete, and contain no material omission with respect to the
Business or operations or status of the Seller or the Assets; (6) Seller is not
a party to any pending litigation, is not aware of any threatened litigation
with respect to the Business or the Assets and has not filed any voluntary
petition in bankruptcy, nor been served with or otherwise received notice of any
involuntary petition in bankruptcy having been filed against Seller; (7) Seller
is the sole and exclusive owner of and has good and marketable title to all of
the Assets, free and clear of all liens, mortgages, pledges, encumbrances or
charges of every kind, nature, and description whatsoever; (8) all licenses,
permits or other registrations required for operation of the Business are
current and valid and Seller is in compliance with all federal, state and local
laws and regulations in connection with the operation of the Business; (9)
Seller is not in default with respect to any material liabilities or material
obligations, which are related to the Assets or the Business, (10) Seller has
and will transfer all assets, rights and interests necessary or convenient for
the operation of the Business; and (11) all taxes, wages, utilities and other
accounts payable in connection with the Seller's operation of the Business
through the Closing are current and not past due, and all such liabilities or
obligations incurred or accrued have been paid and discharged as they become due
and all such liabilities and obligations have been, as of and through the
Closing Date, incurred in the ordinary course of business.
The Seller understands that EUI Shares to be issued to the Seller under
this Agreement have not been and will not be registered under the Securities Act
in reliance upon exemptions contained in the Securities Act or interpretations
thereof, and cannot be offered for sale, sold or otherwise transferred unless
such shares of EUI stock are registered or qualify for exemption from
registration under the Securities Act.
The Seller has such knowledge and experience in financial and business
matters that the Seller is capable of evaluating the merits and risks of the
Seller's investment in EUI Shares being acquired hereunder. The Seller
understands and is able to bear any economic risks associated with such
investment. The Seller acknowledges that the Seller has had the opportunity ask
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Page 3
questions to the officers and management of EUI about the business and financial
condition of EUI. EUI Shares being issued to the Seller hereunder are being
acquired by the Seller in good faith solely for its own accounts, for investment
and not with a view toward resale or other distribution within the meaning of
the Securities Act. The EUI Shares shall not be offered for sale, sold or
otherwise transferred by the Seller without either registration or exemption
from registration under the Securities Act or applicable state securities laws.
No EUI Shares were offered to the Seller by means of publicly disseminated
advertisements or sales literature.
eUniverse hereby represents and warrants to Seller that (1) EUI is a
corporation duly organized, legally existing and in good standing under the laws
of its state of incorporation; (2) the information (including the financial
statements and notes thereto) contained in its Registration Statement on Form 10
(No. 0-26355) and its most recent Form 10-Q filing, (the "SEC Filings") accurate
and complete in all material respects and do 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; (3) the shares of eUniverse Common
Stock when issued and paid for as contemplated hereby will be duly and validly
authorized, fully-paid and non-assessable, and Seller will acquire good title to
the shares; (4) 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; (5) eUniverse
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada; (8) this Agreement does not violate or conflict
with any agreement to which eUniverse is a party or require the consent of any
third party.
All representations and warranties of the parties contained herein
shall be true in all material respects at and as of the Closing Date with the
same effect as though such representations and warranties were made at and as of
such time; and each party shall have performed and complied with all
obligations, covenants, and conditions required by this Agreement to have been
performed or complied with by it prior to or on the Closing Date. All
representations, warranties, agreements and covenants made and given herein
shall survive the execution and delivery of this Agreement and the Closing.
Seller shall indemnify, defend and save EUI harmless from any actions,
claims, losses, damages, demands or expense (including without limitation all
court costs and reasonable attorney's fees on account thereof) suffered or
incurred by EUI, its successors or assigns, arising from (i) any untruthfulness
of any representation made by the Seller in this Agreement or in any document
delivered to EUI by or on behalf of Seller pursuant to this Agreement, or (ii)
breach of any covenant or warranty of the Seller contained in this Agreement or
in any document delivered to EUI by or on behalf of Seller pursuant to this
Agreement.
Until the Closing Date, Seller (1) shall not, either directly or
indirectly, on its own behalf or on behalf of any other person, entity or
concern, solicit, negotiate with, have discussions with or in any manner
entertain, encourage, contemplate or accept any offer, inquiry or proposal of
any other person, concern or entity seeking to acquire any or all of the
Assets or the Business; and (2) shall immediately notify EUNI of any contact
with Seller by any person, concern or
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entity regarding such offer, inquiry or proposal, stating the name of such
other entity and the substantive terms of such offer.
Commencing on the date hereof and continuing through the Closing Date,
Seller agrees to conduct its business in the ordinary course, which ordinary
course shall in no way impair or injure the business or professional reputation
of EUNI, and refrain from any extraordinary transactions.
At the Closing, EUNI may issue a press release. No party shall make any
other press release or public statement anywhere in the world or on any global
computer network concerning EUNI or the Seller pertaining to the transactions
contemplated herein or in this Agreement without the prior, express written
consent of the other parties hereto.
The obligations of EUI to effect the transactions contemplated herein
are further subject to the satisfaction at or prior to the Closing Date of the
following conditions by Seller, unless waived by EUI in writing: (1) from the
date of this Agreement through the Closing Date, Seller shall not have suffered
any adverse change in business or asets that has had an effect greater than Two
Thousand Dollars ($2,000.00); (2) all actions, proceedings, instruments and
documents required to carry out this Agreement, or incidental hereto, and all
other legal matters shall have been approved by counsel to EUI, and such counsel
shall have received all documents, certificates and other papers reasonably
requested by it in connection therewith; (3) Seller shall reaffrim that he is
familiar with the business of EUI, that he is acquiring the EUI Shares under
Section 4(2) of the Securities Act of 1933 (the "Securities Act"), commonly
known as the private offering exemption of the Securities Act, and that the EUI
Shares are restricted and may not be resold, except in reliance on an exemption
under the Securities Act; and (4) at the time of Closing, Seller shall deliver
to EUI: (i) executed bills of sale and other instruments in a form satisfactory
to EUI and its counsel as may be necessary to transfer all of the Assets to EUI
and to consummate the transactions called for by this Agreement; (ii) an
executed employment letter agreement dated of equal date herewith; and (iii) a
certificate signed by Seller certifying that the representations and warranties
of Seller set forth in this Agreement are true and correct as of the date of
this Agreement.
The obligations of Seller to effect the transactions contempleted
herein are subject to the satisfaction at or prior to the Closing Date of the
following conditions by EUI, unless waived by Seller in writing: (1) EUI shall
have furnished Seller with copies of resolutions duly adopted by the Executive
Committee of the Boards of Directors of EUI approving the execution and delivery
of this Agreement and all other necessary or proper corporate action to enable
them to comply with the terms of this Agreement, and (2) at the time of Closing,
EUI shall deliver to Seller an EUI stock certificate representing the Down
payment and a certificate signed by a duly authorized officer of EUI certifying
that the representations and warranties of EUI set forth in this Agreement are
true and correct as of the date of this Agreement.
Any controversy or claim arising out of or related to this Agreement or
the breach thereof shall be settled by binding arbitration in Fairfield County,
Connecticut, in accordance with the
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Commercial Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
This Agreement, together with attachments and documents identified
herein, constitutes the entire agreement and understanding of the parties with
respect to the subject matter hereof, and is intended as the parties' final
expression and complete and exclusive statement of the terms thereof,
superseding all prior or contemporaneous agreements, representations, promises
and understandings, whether written or oral, and may be amended or modified only
by an instrument in writing signed by both parties.
Any notice required or permitted to be given hereunder shall be (a) in
writing, (b) effective on the first business day following the date of receipt,
and (c) delivered by one of the following means: (i) by personal delivery; (ii)
by prepaid, overnight package delivery or courier service; or (iii) by the
United States Postal Service, first class, certified mail, return receipt
requested, postage prepaid. All notices given under this Agreement shall be
addressed to the addresses stated at the top of this Agreement, or to such other
addresses of which the parties have been advised in writing by any of the
above-described means.
This Agreement shall be governed by and construed in accordance with
the laws of the state of Connecticut, without giving effect to any principles of
conflicts of law. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, distributees,
legal representatives, successors and assigns.
Please acknowledge receipt of the foregoing and your agreement and
consent to same by executing a copy of this letter where indicated below and
returning a copy to us by facsimile and a fully executed original to us by
overnight mail courier.
Very truly yours,
eUniverse, Inc.
By: /s/ Brad D. Greenspan
-----------------------------
Brad D. Greenspan, Chairman
Agreed and accepted this
21st day of February, 2000.
/s/ Christian Walter
- ------------------------
Christian Walter
("Seller")