THIRD AMENDMENT TO STOCK OPTION AGREEMENT AND
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") dated the 16th day of June, 2000,
by and among EUNIVERSE, INC., a Nevada corporation (the "Company"), XXXXXXX
XXXXXXX, an individual residing in Wallingford, Connecticut ("Xxxxxxx"), and
XXXXXX, XXXXXXXXXX & XXXXXXX, LLP, a Connecticut limited liability partnership
(the "Escrow Agent").
RECITALS:
1. The Company and Xxxxxxx have executed that certain Stock Option
Agreement dated as of the 26th day of January, 2000, as amended by the First
Amendment to Stock Option Agreement dated as of March 31, 2000 and Second
Amendment to Stock Option Agreement dated as of May 31, 2000 (the "Stock Option
Agreement"); and
2. The parties desire to amend the Stock Option Agreement as set forth
herein; and
3. The parties desire for the Escrow Agent to hold and keep secure certain
documents delivered in connection with that certain Stock Purchase Agreement by
and between the Company, or its assignee, and Xxxxxxx dated as of the 16th day
of June 2000 (the "Stock Purchase Agreement") and to perform the duties set
forth herein;
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants and agreements contained
in the Stock Option Agreement, the Stock Purchase Agreement and this Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Third Amendment to Stock Option Agreement.
1.1 The Stock Option Agreement is hereby amended by deleting Paragraph
C in Section 2 of the Second Amendment to Stock Option Agreement and inserting
the following:
"C. The parties shall use their best efforts to induce a third party to
purchase at least 100,000 shares of Xxxxxxx'x stock at $1.80 per shares
within 10 days from June 14, 2000."
1.2 Except as otherwise provided herein, the terms and conditions of
the Stock Option Agreement shall remain in full force and effect; the
representations, warranties and covenants contained in the Stock Option
Agreement are true in all material respects on the date hereof; and Section 3
(General Mutual Release) of the Stock Option Agreement shall be deemed given on
the date hereof.
2. Escrow Agent. The Parties do hereby appoint and designate XXXXXX,
XXXXXXXXXX & XXXXXXX, LLP as the escrow agent for the purposes herein set forth.
3. Deposit of Documents. Xxxxxxx hereby deposits with the Escrow Agent the
documents set forth on Exhibit "A" attached hereto (collectively, the
"Documents").
4. Terms. The Parties hereby authorize the Escrow Agent to keep and
preserve the Documents in its possession pending the satisfaction or waiver of
all of the conditions set forth in the Stock Purchase Agreement. If any one of
the parties defaults in any of its obligations set forth in the Stock Purchase
Agreement or the Stock Option Agreement, as amended, the party to which such
obligation is owed shall have the right to terminate the Stock Purchase
Agreement as set forth therein, giving notice to the Escrow Agent of such
termination. After receipt of such written notice and evidence that notice of
such termination shall have been given to all of the parties, the Escrow Agent
shall within five (5) business days deliver the Documents then held by the
Escrow Agent to Xxxxxxx and the Escrow Agent shall be relieved of any further
responsibility. If the Escrow Agent receives a written notice from any one of
the parties prior to the delivery of the Documents to withhold the delivery of
the Documents, then the Escrow Agent shall not make such delivery until the
controversy with respect thereto shall have been resolved in accordance with the
Stock Purchase Agreement.
4. Termination of Escrow. When the Escrow Agent has been instructed by the
parties that all conditions in the Stock Purchase Agreement have been satisfied
or waived by the parties, the Escrow Agent shall release the Documents from
escrow and deliver the Documents to EUI.
5. Indemnification. The Parties shall, jointly and severally, indemnify,
hold harmless and defend Escrow Agent and each of its members, agents and
employees ("MGC Indemnities") absolutely and forever, from and against any and
all claims, actions, damages, suits, liabilities, obligations, costs, fees,
charges, and any other expenses whatsoever, including reasonable attorneys' fees
and costs, that may be asserted against any MGC Indemnitee in connection with
this Agreement or the performance of Escrow Agent or any MGC Indemnitee
hereunder.
6. Notices. 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 below each party's signature hereto, or to
new or additional addresses as the parties may be advised in writing.
7. Miscellaneous Provisions. This Agreement is to be governed by and
construed in accordance with the laws of the state of Connecticut. This
Agreement shall be binding upon and shall inure to the benefit of the
transferees, as well as the successors and assigns of the parties, including any
company or corporation with which either party may merge or consolidate. This
Agreement 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. This Agreement may be amended or
modified only by an instrument in writing signed by both parties. This Agreement
may
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be executed in multiple counterparts, each of which when executed and delivered
shall be deemed to be an original but all of which together constitute one and
the same instrument. No party hereto shall be held responsible for the failure
or delay in performance hereunder where such failure or delay is due to any act
of God or of the public enemy, war, compliance with laws, governmental acts or
regulations, fire, flood, epidemic, accident, unusually severe weather or other
causes substantially similar to the foregoing beyond their reasonable control;
provided, however, that any payment obligations incurred prior to such delay
shall continue unaffected. Any party whose performance is affected by such force
majeure shall promptly give notice to the other party of the occurrence or
circumstance upon which it intends to rely to excuse its performance.
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Signatures appear on the following page.
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IN WITNESS WHEREOF, each of the Parties and Escrow Agent have caused this
Agreement to be duly executed by their respective authorized representatives the
day and year first above written.
EUNIVERSE, INC.
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxx
Its: Chairman
Address: 000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxx
Address: 00 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
XXXXXX, XXXXXXXXXX & XXXXXXX, LLP
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Its: Managing Partner
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
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EXHIBIT "A"
ESCROWED DOCUMENTS
1. eUniverse, Inc. Stock Certificate No. 1932-3 representing 100,000 shares
owned by Xxxxxxx Xxxxxxx; and
2. Stock Power Separate from Certificate.
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