Exhibit 10.43
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement"), is made and entered
into as of March 22, 2000, by and among Urban Cool Network, Inc. ("UCN") a
Delaware corporation, and Xxxxxxxxxx Artist Management LLC, a New York limited
liability company ("WAM").
RECITALS
I. WAM owns 500 shares of common stock of XxxxxxxxxxXxxxxXxxx.xxx, Inc.
("WUC"), a Delaware corporation, which constitutes all issued and
outstanding shares of capital stock of WUC (such shares hereinafter
referred to as the "WUC Stock"); and
II. WAM desires to transfer to UCN one hundred percent (100%) of the issued
and outstanding shares of WUC stock, in exchange for 580,000 shares of UCN
common shares of the 3,630,000 million currently outstanding in a tax-free
stock for stock transaction, on the terms and subject to the conditions
set forth in this Agreement (the "Acquisition").
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, promises, representations and warranties set forth herein, and for
other good and valuable consideration, intending to be legally bound hereby, the
parties agree as follows:
SECTION 1. EXCHANGE OF SECURITIES
1.1 Exchange of Stock: Subject to the terms and conditions hereof, at the
Closing (as hereinafter defined), WAM will transfer to UCN all right,
title and interest of WAM in the WUC Stock for 580,000 shares of UCN
common stock, $.001 par value, to be issued to WAM at the Closing (the
"UCN Stock").
1.2 The Closing: The closing of the Acquisition (the "Closing") will take
place as promptly as practicable, but no later than five (5) business days
following satisfaction or waiver of the conditions set forth in Article 6,
at the offices of WAM located at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, unless another place or time is agreed to by the parties. The date
upon which the Closing actually occurs is herein referred to as the
"Closing Date." On the Closing Date, the parties hereto shall cause the
Acquisition to be consummated in accordance with the relevant provisions
of applicable law. The parties intend that the Closing Date will occur on
or prior to March 31, 2000.
(a) Procedure at the Closing: At the Closing, the parties agree that the
following shall occur:
(i) The parties shall have satisfied each of the conditions set
forth in Sections 5 and 6, and shall deliver any and all
documents required by such Sections, unless such delivery is
waived.
(ii) WAM will assign and transfer to UCN all of WAM's right, title,
and interest in and to the WUC Stock by delivering to UCN a
certificate or certificates representing the WUC Stock, in
genuine and unaltered form, duly endorsed in blank or
accompanied by duly executed stock powers endorsed in blank,
with requisite stock transfer tax stamps, if any, attached.
(iii) UCN shall execute, provide and deliver to WAM a certificate or
certificates representing the UCN Stock, in genuine and
unaltered form, with requisite stock transfer stamps, if any,
attached.
1.3 Taking of Necessary Action; Further Action: If, at any time after the
Closing, any such further action is necessary or desirable to carry out
the purposes of this Agreement and to vest UCN with full right, title and
possession to the WUC Stock, or to vest WAM with full right, title, and
possession to the UCN Stock, the officers and directors of both UCN and
WAM are fully authorized in the name of their respective corporations or
otherwise to take, and will take, all such lawful and necessary action.
1.4 Restrictions on UCN Stock:
(a) The UCN Stock has not been registered under the Securities Act, by
reason of a specific exemption from the registration provisions of
the Securities Act of 1933, as amended (the "Securities Act"). WAM
understands that the shares of UCN Stock are "restricted securities"
under applicable U.S. federal and state securities laws and,
therefore, that WAM must hold the UCN Stock indefinitely unless such
shares are registered by UCN and qualified by state authorities, or
an exemption from such registration is available.
(b) Legend. Each certificate evidencing the UCN Stock subject to the
terms and conditions of this Agreement and each certificate issued in
exchange for or upon the transfer of any shares subject to the terms
and conditions of this Agreement (if such shares remain subject to
the terms and conditions of this Agreement after such transfer) shall
be stamped or otherwise imprinted with a conspicuous legend, in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND
HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE UCN THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933."
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SECTION 2. CONTENT SHARING AND STRATEGIC ALLIANCES
(a) WAM Services, Alliances and Added Value: WAM's Public Relations
Department, Special Events Promotion, Co-creation of International
Events (i.e., World Wide Internet Talent/Model Search on the UCN
Platform) shall be available for marketing and platform construction
purposes. In addition, WAM shall use reasonable commercial efforts to
include all other strategic partners in the UCN agreement for
cross-linkages, partnerships and alliances. The list of companies
that have already concluded a partnership agreement with WAM include:
1. OnlyReal.com- women's plus size fashion site
2. Verius.com- sports, events, and language instruction site
3. OrbitTravel.com- travel destination site
The companies with which WAM is currently in negotiation with respect
to the formation of a partnership or strategic alliance include:
1. Wirebreak.com- live entertainment site
2. ShopPlanetX- 3rd world ecommerce site
3. Gloss.com- beauty site
4. AKA.com- hip-hop site
5. MuzicDepot.com- music site
6. EUniverse.com- entertainment site
7. GoHastings.com- entertainment site
8. MSGonline.com- teen girls site
9. ICanBuy.com- teen ecommerce site
10. CyberRetail.com- fashion site
11. Graffitionline- teen fashion site
12. Inchant.com- intimate apparel site
13. Pseudo.com- digital content site
Subject to the License Agreement, WAM may attempt to enter into
negotiations with additional partners. In addition, if applicable,
the content platform residing on the AOL Keyword "Wilhelmina" will be
accessible among all partners.
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(b) WAM Talent: Talent represented by WAM is not included as part of this
Agreement. The engagement of any WAM talent shall be negotiated in an
arms-length transaction in order to avoid a conflict of interest.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF WAM
WAM hereby represents and warrants to UCN as follows:
3.1 Organization, Standing, and Power: WAM is a limited liability company duly
organized, validly existing, and in good standing under the laws of the
State of New York.
(a) WUC is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware; has all requisite
corporate power to own, lease, and operate its properties and to
carry on its business as currently being conducted; is duly
qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified and in good
standing would have a material adverse effect on the business,
assets (including intangible assets), properties, liabilities
(contingent or otherwise), financial condition, or operations (a
"Material Adverse Effect") of WUC; and WUC does not directly or
indirectly own any equity or similar interest in, or any interest
convertible or exchangeable or exercisable for any equity or similar
interest in, any corporation, partnership, joint venture, or other
business association or entity. WUC is not in violation of any of
the provisions of its Certificate of Incorporation or Bylaws.
3.2 WUC Capital Structure: The authorized capital stock of WUC consists of One
Thousand (1,000) shares of WUC Common Stock, $1.00 par value, of which
Five Hundred (500) shares are issued and outstanding and are held of
record by WAM. All outstanding shares of WUC Stock have been duly
authorized and validly issued, are fully paid and nonassessable, and are
subject to no preemptive rights or rights of first refusal created by
statute, the Certificate of Incorporation, or Bylaws of WUC or any
agreement to which WUC is a party or by which it is bound. WAM owns all of
the issued and outstanding capital stock of WUC free and clear of any
mortgage, pledge, assessment, security interest, lease, lien, adverse
claim, levy, charge, or other encumbrance of any kind, or any contract or
agreement to grant any of the foregoing ("Liens"). The delivery of a
certificate or certificates at the Closing representing the WUC Stock will
transfer to UCN good and valid title to the WUC Stock, free and clear of
all Liens.
(a) There are (i) no equity securities of any class of WUC or any
securities exchangeable into or exercisable for such equity
securities issued, reserved for issuance, or outstanding and (ii) no
outstanding subscriptions, options, warrants, puts, calls, rights, or
other commitments or agreements of any character to which WUC is a
party or by which it is bound obligating WUC to issue, deliver, sell,
repurchase, or redeem, or cause to be issued, delivered, sold,
repurchased, or redeemed, any equity securities of WUC or obligating
WUC to grant, extend, accelerate the vesting of, change the price of,
or otherwise amend or enter into any such option, warrant, call,
right, commitment, or agreement.
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3.3 Authority: WAM has all requisite limited liability company power and
authority to enter into this Agreement and the other documents required to
be executed and delivered by WAM hereunder (collectively, the "WAM
Transaction Documents") and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and the
other WAM Transaction Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of WAM. This Agreement and the other WAM
Transaction Documents have been duly executed and delivered by WAM and
constitute the valid and binding obligations of WAM, enforceable against
WAM in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to creditors' rights generally, and general
principles of equity.
(a) The execution and delivery by WAM of this Agreement and the other WAM
Transaction Documents do not, and the consummation of the
transactions contemplated hereby and thereby will not: (i) conflict
with, or result in any violation or breach of any provision of the
Certificate of Formation or Operating Agreement of WAM or the
Certificate of Incorporation or Bylaws of WUC, (ii) result in any
violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default under, or give rise to a right of
termination, cancellation, or acceleration of any material obligation
or loss of any benefit under any note, mortgage, indenture, lease,
contract, or other agreement or obligation to which WAM or WUC is a
party or by which WAM or WUC or any of their properties or assets may
be bound; (iii) conflict with or violate any permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance,
rule, or regulation applicable to WAM or WUC or any of their
properties or assets; or (iv) require WAM or WUC to obtain any
consent, approval, or action of, make any filing with or give any
notice to any entity or person as a result or under the terms of any
contract or agreement to which WAM or WUC is a party or by which
their properties or assets are bound, except in the case of (ii) and
(iii) for such violations, breaches, defaults, rights, or conflicts
which would not be reasonably likely to have a Material Adverse
Effect on WUC or materially affect the ability of WAM to consummate
the transactions contemplated by this Agreement in accordance with
its terms, and, except in the case of (iv) for such consents,
approvals or actions which, if not obtained or made, would not be
reasonably likely to have a Material Adverse Effect on WUC or
materially adversely affect the ability of WAM to consummate the
transactions contemplated by this Agreement in accordance with its
terms.
(b) No consent, approval, order, or authorization of, or registration,
declaration, or filing with, any governmental entity is required by
WAM or WUC in connection with the execution and delivery of this
Agreement or the other WAM Transaction Documents or the consummation
of the transactions contemplated hereby or thereby except for such
consents, authorizations, filings, approvals, and registrations
which, if not obtained or made, would not be reasonably likely to
have a Material Adverse Effect on WUC or materially adversely affect
the ability
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of WAM to consummate the transactions contemplated by this Agreement
in accordance with its terms.
3.4 Absence of Undisclosed Liabilities: WUC does not have any liabilities,
either accrued or contingent, and whether due or to become due, other than
liabilities incurred since its formation in connection therewith, and
liabilities incurred or to be incurred pursuant to the License Agreement.
3.5 Absence of Certain Changes or Events: Since its date of formation, WUC has
not conducted any business and has not suffered any event or occurrence
that has had or could reasonably be expected to have a Material Adverse
Effect on WUC;
3.6 Intellectual Property: WUC owns, or is licensed or otherwise possesses
legally enforceable rights to use, all patents, trademarks, trade names,
service marks, and copyrights, and any applications for and registrations
of such Intellectual Property, and all processes, formulae, methods,
schematics, technology, know-how, computer software programs or
applications, and tangible or intangible proprietary information or
materials that are necessary to conduct the business of WUC as currently
conducted.
3.7 WUC License: WUC is a party to a binding agreement with WAM that provides
a renewable twenty-five year, royalty-free, exclusive (as it pertains to
urban sites where the urban market is targeted as its principal form of
business) license (the "License Agreement"), a true and accurate copy of
which is attached hereto as Exhibit "A" and by this reference incorporated
herein, to use, reproduce, transmit, display and otherwise exploit the
trademarks, tradenames, service marks, designs, logo and other proprietary
marks of WAM (the "Marks") in connection with the (i) development,
exploitation, marketing, promotion, positioning, and branding of UCN, its
affiliates, and it and its affiliates' respective businesses, and (ii)
development, reproduction, transmission, display, communication,
distribution and other exploitation of programming and content (in
whatever form UCN deems appropriate) featuring or otherwise involving the
Marks and the models, athletes and other talent represented by WAM or an
affiliate of WAM.
3.8 Contracts: WUC is not a party or subject to any other binding agreements,
obligations, or commitments, written or oral:
(a) that call for any fixed and/or contingent payment or expenditure or
any related series of fixed an/or contingent payments or expenditures
by or to WUC totaling more than $25,000.00 in any calendar year;
(b) with agents, advisors, salesmen, representatives, contractors, or
consultants that are not cancelable by it on no more than thirty (30)
days notice and without liability, penalty, or premium;
(c) that restricts WUC from carrying on anywhere in the world its
business or any portion thereof as currently conducted;
(d) to provide funds to or to make any investment in any other person or
entity (in the form of a loan, capital contribution, or otherwise);
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(e) with respect to obligations as guarantor, surety, co-signer,
endorser, co-maker, indemnitor, or otherwise in respect of the
obligation of any other person or entity;
(f) for any line of credit, standby financing, revolving credit, or other
similar financial arrangement;
(g) with any distributor, original equipment manufacturer, value added
remarketer or other person for the distribution of any WUC products.
WUC is not in material default under or in material breach or violation of, nor
is there any valid basis for any claim of material default by WUC under, or
material breach or violation by WUC of, any contract, commitment, or restriction
to which WUC is a party or by which WUC or any of its properties or assets is
bound (including the License Agreement). To WUC's or WAM's knowledge, no other
party is in material default under or in material breach or violation of, nor is
there any valid basis for any claim of material default by any other party under
any contract, commitment, or restriction to which WUC is a party or by which WUC
or any of its properties or assets is bound.
3.9 Compliance with Laws: WUC has complied in all material respects with, is
not in material violation of, and has not received any notices of
violation with respect to, any statute, law, or regulation applicable to
the ownership or operation of its business.
3.10 Litigation: There is no action, suit, proceeding, claim, arbitration, or
investigation pending before any agency, court, or tribunal, or, to WAM's
and WUC's knowledge, threatened against WUC or any of its properties or
officers or directors (in their capacities as such). There is no judgment,
decree, or order against WUC or, to WAM's or WUC's knowledge, any of its
directors or officers (in their capacities as such) that could prevent,
enjoin, or materially alter or delay any of the transactions contemplated
by this Agreement, or that could reasonably be expected to have a Material
Adverse Effect on WUC.
3.11 Restrictions on Business: There is no agreement, judgment, injunction,
order, or decree binding upon WUC which has or could reasonably be
expected to have the effect of prohibiting or materially impairing any
current business practice of WUC or the conduct of its business as
currently conducted.
3.12 Governmental Authorization: WUC has obtained each governmental consent,
license, permit, grant, or other authorization of a governmental entity
that is required for the operation of the business of WUC as currently
conducted, except for those which, if not obtained, would not be
reasonably likely to have a Material Adverse Effect on WUC.
3.13 Broker's and Finder's Fees: WAM has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
3.14 Investment Representations:
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(a) The UCN Stock is being acquired for WAM's own account, for investment
and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the
Securities Act of 1933, as amended, or other applicable securities
laws.
(b) WAM is an "Accredited Investor" as that term is defined in Rule 501
of Regulation D promulgated under the Securities Act of 1933, as
amended.
3.15 No Sale or Transfer of UCN Stock: WAM hereby agrees to sign a lock-up
agreement as requested by UCN, in the same form as executed by the
directors and officers of UCN, attached hereto as Schedule 1.
(a) In the event that the effective date of UCN's Registration Statement
does not occur on or before May 31, 2000, the provisions hereof shall
forthwith terminate and be of no further force or effect.
(b) WAM shall be entitled to transfer the UCN Stock (i) to a WAM
subsidiary, or affiliate, (ii) to a survivor by merger or
consolidation, or any other successor in interest of WAM or any other
entity referred to in (i), or (iii) to the employees of WAM or any
other entity related to WAM and referred to in the foregoing clauses
(i) or (ii), pursuant to an employee stock option plan.
(c) In each instance of a transfer pursuant to clauses (i), (ii), or
(iii) above, such transferee shall be subject to the provisions of
this paragraph.
3.16 No Misrepresentation: No representation or warranty by WAM in this
Agreement, and no written statement, certificate, or schedule furnished or
to be furnished by or on behalf of WAM pursuant to this Agreement, when
taken together, contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary in
order to make such statements, in light of the circumstances under which
they were made, not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF UCN
UCN represents and warrants to WAM as follows:
4.1 Organization, Standing, and Power: UCN is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. UCN has the corporate power to own its properties and to carry
on its business as now being conducted.
4.2 UCN Capital Structure: The authorized capital stock of UCN consists of
thirty-three million (33,000,000) shares of UCN Common Stock, $.001 par
value, of which shares are issued and outstanding and are held of record
by UCN. All outstanding shares of UCN Stock have been duly authorized and
validly issued, are fully paid and nonassessable, and are subject to no
preemptive rights or rights of first refusal created by statute, the
Certificate of Incorporation, or Bylaws of UCN or any agreement to which
UCN is a party or by which it is bound. The delivery of a certificate or
certificates at the Closing
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representing the UCN Stock will transfer to WAM good and valid title to
the UCN Stock, free and clear of all Liens.
(a) Except as set forth on Schedule 2, there are (i) no equity securities
of any class of UCN or any securities exchangeable into or
exercisable for such equity securities issued, reserved for issuance,
or outstanding and (ii) no outstanding subscriptions, options,
warrants, puts, calls, rights, or other commitments or agreements of
any character to which UCN is a party or by which it is bound
obligating UCN to issue, deliver, sell, repurchase, or redeem, or
cause to be issued, delivered, sold, repurchased, or redeemed, any
equity securities of UCN or obligating UCN to grant, extend,
accelerate the vesting of, change the price of, or otherwise amend or
enter into any such option, warrant, call, right, commitment, or
agreement.
4.3 Authority: UCN has all requisite corporate power and authority to enter
into this Agreement and the other documents required to be executed and
delivered by UCN hereunder (collectively, the "UCN Transaction Documents")
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the other UCN Transaction
Documents and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the
part of UCN. This Agreement and the other UCN Transaction Documents to
which they are parties have been duly executed an delivered by UCN and
constitute the valid and binding obligations of UCN, enforceable against
UCN in accordance with their terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally, and (ii) general principles of
equity.
(a) The execution and delivery by UCN of this Agreement and the other UCN
Transaction Documents do not, and the consummation of the
transactions contemplated hereby and thereby will not: (i) conflict
with, or result in any violation or breach of any provision of the
Certificate of Incorporation or Bylaws of UCN, (ii) result in any
violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default under, or give rise to a right of
termination, cancellation, or acceleration of any material obligation
or loss of any benefit under any note, mortgage, indenture, lease,
contract, or other agreement or obligation to which UCN is a party or
by which UCN or any of its properties or assets may be bound; (iii)
conflict with or violate any permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule, or regulation
applicable to UCN or any of its properties or assets; or (iv) require
UCN to obtain any consent, approval, or action of, make any filing
with, or give any notice to any entity or person as a result or under
the terms of any contract or agreement to which UCN is a party or by
which their properties or assets are bound, except in the case of
(ii) and (iii) for such violations, breaches, defaults, rights, or
conflicts which would not be reasonably likely to have a Material
Adverse Effect on UCN and its parents and subsidiaries, taken as a
whole, or materially affect the ability of UCN to consummate the
transactions contemplated by this Agreement in accordance with its
terms.
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(b) No consent, approval, order, or authorization of, or registration,
declaration, or filing with, any governmental entity is required by
UCN in connection with the execution and delivery of this Agreement
or the other UCN Transaction Documents or the consummation of the
transactions contemplated hereby or thereby, except for such
consents, authorizations, filings, approvals, and registrations
which, if not obtained or made, would not be reasonably likely to
have a Material Adverse Effect on UCN or materially adversely affect
the ability of UCN to consummate the transactions contemplated by
this Agreement in accordance with its terms.
4.4 Absence of Undisclosed Liabilities: Except as disclosed in the Company's
Registration Statement on Form S-1 dated February 3, 2000, as amended from
time to time, UCN does not have any liabilities, either accrued or
contingent, and whether due or to become due, other than normal or
recurring liabilities incurred since its formation in the ordinary course
of business.
4.5 Absence of Certain Changes or Events: Except as disclosed in the Company's
Registration Statement on Form S-1 dated February 3, 2000, as amended from
time to time, since its date of formation, UCN has conducted its business
in the ordinary course and in a manner consistent with past practices, and
has not suffered any event or occurrence that has had or could reasonably
be expected to have a Material Adverse Effect on UCN;
4.6 Intellectual Property: Except as disclosed in the Company's Registration
Statement on Form S-1 dated February 3, 2000, as amended from time to
time, UCN owns, or is licensed or otherwise possesses legally enforceable
rights to use, all patents, trademarks, trade names, service marks, and
copyrights, and any applications for and registrations of such
Intellectual Property, and all processes, formulae, methods, schematics,
technology, know-how, computer software programs or applications, and
tangible or intangible proprietary information or materials that are
necessary to conduct the business of UCN as currently conducted.
4.7 Investment Representations:
(a) The WUC Stock is being acquired for UCN's own account, for investment
and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the
Securities Act of 1933, as amended, or other applicable securities
laws.
(b) UCN is an "Accredited Investor" as that term is defined in Rule 501
of Regulation D promulgated under the Securities Act of 1933, as
amended.
4.8 Registration Rights: No director or officer of UCN has any registration
rights or other rights to transfer or dispose of UCN common stock pursuant
to this agreement or otherwise, except as provided by Rule 144 of the
Securities Act of 1933, as amended ("Rule 144")
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4.9 The UCN Stock: The UCN Stock to be issued in accordance with the terms and
provisions of this Agreement will be duly authorized, validly issued,
fully paid, and non-assessable.
4.10 No Sale or Transfer of UCN Common Stock:
(a) Directors and officers of UCN hereby agree to sign a lock-up
agreement, attached hereto as Schedule 1, which shall prevent such
director and officer from selling or otherwise transferring UCN
common stock; provided, however, that UCN shall provide written
notice to WAM within five (5) business days, if the restrictions
contained therein are lifted or changed for any reason or in any
manner.
(b) If UCN proposes to prepare and file with the Securities and Exchange
Commission ("SEC") a form S-1, or any other similar form registering
any UCN common stock held by directors and officers of UCN (other
that pursuant to Forms X-0, X-0 or any successor to such forms), UCN
shall provide written notice to WAM of such registration within five
(5) business days and register the same proportionate amount of UCN
stock held by WAM, as the directors or officers of UCN are proposing
to register pursuant to that registration statement.
4.11 Compliance with Laws: UCN has complied in all material respects with, is
not in material violation of, and has not received any notices of
violation with respect to, any statute, law, or regulation applicable to
the ownership or operation of its business.
4.12 Litigation: There is no action, suit, proceeding, claim, arbitration, or
investigation pending before any agency, court, or tribunal, or, to UCN's
knowledge, threatened against UCN or any of its properties or officers or
directors (in their capacities as such). There is no judgment, decree, or
order against UCN or, to UCN's knowledge, any of its directors or officers
(in their capacities as such) that could prevent, enjoin, or materially
alter or delay any of the transactions contemplated by this Agreement, or
that could reasonably be expected to have a Material Adverse Effect on
UCN.
4.13 Restrictions on Business: There is no agreement, judgment, injunction,
order, or decree binding upon UCN which has or could reasonably be
expected to have the effect of prohibiting or materially impairing any
current business practice of UCN or the conduct of its business as
currently conducted.
4.14 Governmental Authorization: UCN has obtained each governmental consent,
license, permit, grant, or other authorization of a governmental entity
that is required for the operation of the business of UCN as currently
conducted, except for those which, if not obtained, would not be
reasonably likely to have a Material Adverse Effect on UCN.
4.15 Brokers' and Finders' Fees: UCN has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or
agent's commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
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4.15 No Misrepresentation: No representation or warranty by UCN in this
Agreement, and no written statement, certificate, or schedule furnished or
to be furnished by or on behalf of UCN pursuant to this Agreement, when
taken together, contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary in
order to make such statements, in light of the circumstances under which
they were made, not misleading.
SECTION 5. ADDITIONAL AGREEMENTS
5.1 Confidentiality: "Confidential Information" as used in this Agreement
shall mean any information, not generally known in the trade or industry,
which was obtained from the parties to this Agreement, or which was
learned, discovered, developed, conceived, originated, or prepared during
or as a result of any performance hereunder and which falls within the
following general categories: (i) information relating to trade secrets of
the parties; (ii) information relating to existing or contemplated
products, services, technology, designs, computer systems, computer
software and research, or developments of the parties; (iii) information
relating to business plans, sales or marketing methods, methods of doing
business, customer lists, customer usages and/or requirements, names of
sales representatives, and supplier information of the parties; (iv)
information relating to proprietary computer software not generally known
to the public; and (v) any other confidential information that the parties
may wish to protect by patent, copyright, or by keeping such information
secret and confidential.
(a) The party which receives confidential information from the other
party agrees to maintain such information in secrecy at all times,
and to take reasonable steps, including such steps as it takes to
protect its own proprietary information, prior to and (if applicable)
after termination of this Agreement, to prevent the duplication or
disclosure of any such confidential and proprietary information,
other than by or to its own employees or agents who must have access
to such information to perform such party's obligations hereunder.
Information of either party shall not be subject to the obligations
imposed by this Section if such information is publicly available or
is lawfully obtained by the disclosing party from another source free
of restrictions or is independently developed by the disclosing
party.
5.2 Expenses: Regardless of whether the transaction provided for herein is
consummated, all fees and expenses incurred in connection with such share
exchange including, without limitation, all legal, accounting, financial
advisory, consulting and all other fees and expenses of third parties
incurred by a party in connection with the negotiation and effectuation of
the terms and conditions of this Agreement and the transactions
contemplated hereby, shall be the obligation of the respective party
incurring such fees and expenses.
5.3 Public Disclosure: Following the execution of this Agreement, the parties
shall agree to the text of the initial public disclosure to be made
concerning the transaction discussed in this Agreement. The parties shall
further agree on the timing and nature of such disclosure. Disclosure
(whether or not in response to an inquiry) of the existence or nature of
this Agreement shall be made by any party hereto unless approved in
writing by
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duly authorized officers of all parties prior to release, provided that
such approval shall not be unreasonably withheld and subject in any event
to UCN's obligation to comply with applicable securities laws and stock
market regulations.
5.4 Reasonable Efforts: Subject to the terms and conditions provided in this
Agreement, each of the parties hereto shall use its reasonable efforts to
take promptly, or cause to be taken, all actions, and to do promptly, or
cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated hereby, to obtain all necessary waivers,
consents and approvals and to effect all necessary registrations and
filings and to remove any injunctions or other impediments or delays,
legal or otherwise, in order to consummate and make effective the
transactions contemplated by this Agreement for the purpose of securing to
the parties hereto the benefits contemplated by this Agreement.
5.5 Notification of Certain Matters: WAM shall give prompt notice to UCN, and
UCN shall give prompt notice to WAM, of (a) the occurrence or
non-occurrence of any event, the occurrence or non-occurrence of which is
likely to cause any representation or warranty of any party, respectively,
contained in this Agreement to be untrue or inaccurate in any material
respect at or prior to the Closing except as contemplated by this
Agreement, and (b) any failure of WAM or UCN, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied by it hereunder; provided, however, that the delivery of
any notice pursuant to this Section 5.5 shall not limit or otherwise
affect any remedies available to the party receiving such notice.
5.6 Use of UCN Corporate Name: UCN hereby consents to WUC's use of the words
"Urban Cool" in WUC's corporate name.
5.7 Tax-Free Acquisition: Each WAM and UCN hereby agree to treat the
Acquisition as a tax-free exchange of shares in any and all tax or other
filings, documents or agreements relating to or containing a
characterization of the Acquisition, and neither party shall take any
position in any such filing that is inconsistent with this intended
characterization.
SECTION 6. CONDITIONS TO THE CLOSING
6.1 Conditions to Obligations of Each Party: The respective obligations of
each party to this Agreement to effect the transactions provided for
herein shall be subject to the satisfaction at or prior to the Closing of
the following conditions:
(a) Director and/or Stockholder Approval: Director and/or Stockholder
approval shall have been obtained;
(b) No Injunctions or Restraints; Illegality: No temporary restraining
order, preliminary or permanent injunction, or other order issued by
any court of competent jurisdiction or other legal or regulatory
restraint or prohibition preventing the consummation of the
transactions provided for herein shall be in effect;
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(c) Regulatory Approvals and Third Party Consents: All governmental and
third party consents, orders and approvals legally required for the
consummation of the transactions provided for herein and the
transactions contemplated hereby, shall have been obtained and be in
effect as of the Closing;
6.2 Additional Conditions to the Obligations of UCN: The obligations of UCN to
effect the transactions provided for herein are subject to the
satisfaction of each of the following additional conditions, any of which
may be waived in writing exclusively by UCN:
(a) The representations and warranties of WAM set forth in this Agreement
shall be true and correct in all material respects as of the date of
this Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Closing Date,
except for changes contemplated by this Agreement.
(b) WAM shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to
the Closing Date.
(c) The license granted to WUC by WAM shall be in full force and effect
in accordance with its terms as of the Closing Date.
6.3 Additional Conditions to the Obligations of WAM: The obligations of WAM to
effect the transactions provided for herein are subject to the
satisfaction of each of the following additional conditions, any of which
may be waived in writing exclusively by WAM:
(a) The representations and warranties of UCN set forth in this Agreement
shall be true and correct in all material respects as of the date of
this Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Closing Date.
(b) UCN shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to
the Closing Date.
SECTION 7. TERMINATION, AMENDMENT, AND WAIVER
7.1 Termination: This Agreement may be terminated and the transaction
abandoned at any time prior to the Closing:
(a) By mutual consent of the parties;
(b) By either party if: (i) the Closing has not occurred by March 31,
2000 (provided that the right to terminate this Agreement under this
clause 7.1(b)(i) shall not be available to any party whose willful
failure to fulfill any obligation hereunder has been the cause of, or
resulted in, the failure of the Closing to occur on or before such
date); (ii) there shall be a final non-appealable order of a federal
or state court in effect preventing consummation of the transactions
contemplated hereby; or (iii) there shall be any statute, rule,
regulation or order enacted, promulgated or issued or deemed
applicable to the transactions provided for herein by any
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governmental entity that would make consummation of the transactions
provided for herein illegal; or
(c) By either party if there shall be any action taken, or any statute,
rule, regulation or order enacted, promulgated or issued or deemed
applicable to the transactions provided for herein by any
governmental entity, which would: (i) prohibit UCN's ownership of the
WUC Stock; (ii) prohibit WAM's ownership of the UCN Stock; or (iii)
compel UCN to dispose of or hold separate, as a result of the
Acquisition, any material portion of the business or assets of WUC.
Where action is taken to terminate this Agreement pursuant to this Section
7.1, it shall be sufficient for such action to be authorized by the Board
of Directors (as applicable) of the party taking such action.
7.2 Effect of Termination: In the event of termination of this Agreement as
provided in Section 7.1, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of either party or
their respective officers, directors or stockholders, provided that each
party shall remain liable for any breaches of this Agreement prior to its
termination and WAM shall liquidate WUC.
7.3 Amendment: Except as is otherwise required by applicable law, this
Agreement may be amended by the parties hereto at any time only by
execution of an instrument in writing signed on behalf of each of the
parties hereto.
7.4 Extension; Waiver: At any time prior to the Closing, either party may, to
the extent legally allowed, (a) extend the time for the performance of any
of the obligations of the other party hereto, (b) waive any inaccuracies
in the representations and warranties made to such party contained herein
or in any document delivered pursuant hereto, and (c) waive compliance
with any of the agreements or conditions for the benefit of such party
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party at any
time or times to require performance of any provision hereof shall in no
manner affect the right of such party at a later time to enforce the same
or any other provision of this Agreement. No waiver of any condition or of
the breach of any term in this Agreement in one or more instances shall be
deemed to be or construed as a further or continuing waiver of such
condition or breach or a waiver of any other condition or of the breach of
any other term of this Agreement.
SECTION 8. INDEMNIFICATION
8.1 Survival of Representations and Warranties: All of the representations and
warranties of WAM and UCN contained in this Agreement shall survive the
Closing Date for a period of twelve (12) months; provided, however, that
the representation and warranty made by WAM and UCN in Sections 3.1, 3.2,
3.3, 4.1, 4.2, 4.3 and 4.8 shall survive the Closing Date indefinitely.
After the expiration of such twelve-month period, such representations and
warranties shall expire and be of no further force or effect other than
those specifically listed above.
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8.2 WAM Indemnification: WAM hereby agrees to indemnify and hold harmless UCN,
including its affiliates, subsidiaries, successors, assigns, officers,
directors, agents, and employees, from and against any and all
liabilities, damages, losses, expenses, claims, demands, suits, fines, or
judgments (including, but not limited to, attorneys' fees, expert witness
costs, court costs, and expenses) that may at any time be threatened
against, suffered by, accrued against, charged to, or recoverable from UCN
in any forum, by reason of:
(a) The breach in any material respect of any representation or warranty
of WAM contained in or made pursuant to this Agreement; or
(b) A material breach in any covenant or agreement of WAM contained in
this Agreement.
8.3 UCN Indemnification: UCN hereby agrees to indemnify and hold harmless WAM,
including its affiliates, subsidiaries, successors, assigns, officers,
directors, agents, and employees, from and against any and all
liabilities, damages, losses, expenses, claims, demands, suits, fines, or
judgments (including, but not limited to, attorneys' fees, expert witness
costs, court costs, and expenses) that may at any time be threatened
against, suffered by, accrued against, charged to, or recoverable from WAM
in any forum, by reason of:
(a) The breach in any material respect of any representation or warranty
of UCN contained in or made pursuant to this Agreement;
(b) A material breach in any covenant or agreement of UCN contained in
this Agreement.
SECTION 9. GENERAL PROVISIONS
9.1 Non-Survival of Representations and Warranties: Except as explicitly set
forth in this Agreement, the representations and warranties set forth in
this Agreement shall not survive beyond the Closing.
9.2 Notices: All notices and other communications hereunder shall be in
writing, shall be effective when received, and shall in any event be
deemed to have been received (a) when delivered, if delivered personally
or by commercial delivery service, (b) three (3) business days after
deposit with U.S. Mail, if mailed by registered or certified mail (return
receipt requested), (c) one (1) business day after the business day of
deposit with Federal Express or similar nationally recognized overnight
courier for next day delivery (or, two (2) business days after such
deposit if deposited for second business day delivery), if delivered by
such means, or (d) one (1) business day after delivery by facsimile
transmission with copy by U.S. Mail, if sent via facsimile plus mail copy
(with acknowledgment of complete transmission), to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
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if to UCN, to:
Urban Cool Network, Inc.
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx III, Chairman & CEO
if to WAM, to:
Wilhelmina Artist Management, LLC
000 Xxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
9.3 Interpretation: The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation." The word "agreement" when used herein shall be deemed in each
case to mean any contract, commitment or other agreement, whether oral or
written, that is legally binding. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. When
reference is made herein to "the business of" an entity, such reference
shall be deemed to include the business of all direct and indirect
subsidiaries of such entity. Reference to the subsidiaries of an entity
shall be deemed to include all direct and indirect subsidiaries of such
entity.
9.4 Counterparts: This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. Execution of this Agreement
via facsimile shall have the same force of authority as an original
signature.
9.5 Entire Agreement: This Agreement, the schedules and Exhibits hereto, and
the documents and instruments and other agreements among the parties
hereto referenced herein: (a) constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof; and (b) are not intended to
confer upon any other person any rights or remedies hereunder.
9.6 Severability: In the event that any provision of this Agreement or the
application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted in
such a manner so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision
of this Agreement with a
17
valid and enforceable provision that will achieve, to the greatest extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
9.7 Other Remedies: Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party will be deemed cumulative with and
not exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy will not
preclude the exercise of any other remedy.
9.8 Specific Performance: The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this remedy being in
addition to any other remedy to which they are entitled at law or in
equity.
9.9 Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the
conflicts of law principles thereof. Each of the parties hereto consents
to the exclusive jurisdiction of the courts of the State of New York, and
any Federal Court sitting in the Southern District of the State of New
York, and that process may be served upon them in any manner authorized by
the laws of the State of New York for such persons and waives and
covenants not to assert or plead any objection which they might otherwise
have to such jurisdiction and such process.
9.10 Assignment: No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written
approval of the other parties hereto. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
9.11 Absence of Third Party Beneficiary Rights: No provisions of this Agreement
are intended, nor shall be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, partner of any party hereto or any other person or
entity unless specifically provided otherwise herein.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
The following page is the signature page
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be signed by their duly authorized respective officers, as of the
date first written above.
URBAN COOL NETWORK, INC.
By:
-----------------------------------
Xxxxx X. Xxxxx III
Chairman and CEO
WILHELMINA ARTIST MANAGEMENT, LLC
By:
-----------------------------------
Xxxxxx Xxxx
Managing Member
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Schedule 1
URBAN COOL NETWORK INC.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
The undersigned, a beneficial owner of an aggregate of shares of common
stock of Urban Cool Network, Inc. (the "Company"), par value $0.01 per share
(the "Common Stock"), and/or warrants, options or rights to purchase, or
securities convertible into, Common Stock, understands that the Company has
filed with the Securities and Exchange Commission a registration statement (the
"Registration Statement") for the registration of 2,000,000 shares of Common
Stock.
In order to induce Security Capital Trading, Inc. (the "Representative")
and Urban Cool Network, Inc. (together with its predecessors, successors and
assigns, the "Company) to enter into an underwriting agreement with respect to
the public offering of securities issued by the Company, the undersigned hereby
agrees that for a period of thirteen (13) months following the effective date of
the Company's Registration Statement relating to the underwritten public
offering of securities by the Company (the "Lock-up Period"), he, she or it will
not, without the prior written consent of the Representative and the Company,
directly or indirectly, issue, offer, agree or offer to sell, sell, grant an
option for the purchase or sale of, transfer, pledge, assign, hypothecate,
distribute or otherwise encumber or dispose of (whether pursuant to Rule 144 of
the General Rules and Regulations under the Securities Act of 1933, as amended,
or otherwise) any securities of the Company, including common stock or options,
rights, warrants or other securities underlying, convertible into, exchangeable
or exercisable for or evidencing any right to purchase or subscribe for any
common stock (whether or not beneficially owned by the undersigned), or any
beneficial interest therein (collectively, the "Securities").
Further, the undersigned hereby waives, from the date hereof until the
expiration of the Lock-up Period, any and all rights to request or demand the
registration pursuant to the Securities Act of 1933, as amended, of any
Securities of the Company which are registered in the name of or beneficially
owned by the undersigned.
In order to enable the aforesaid covenants to be enforced, the undersigned
hereby consents to the placing of legends and/or stop-transfer orders with the
transfer agent of the Company's securities with respect to any of the Securities
registered in the name of the undersigned or beneficially owned by the
undersigned, and the undersigned hereby confirms the undersigned's investment in
the Company.
Dated: March __, 2000
------------------------------
By:
Title:
------------------------------
Print Social Security Number
or Taxpayer I.D. Number
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