Exhibit 10.49
eUNIVERSE, INC.
0000 XXXXXXXX XXXXXXXXX, XXXXX 0000
XXX XXXXXXX, XXXXXXXXXX 00000
October 30, 2000
Take-Two Interactive Software, Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxx
Chief Executive Officer
Dear Gentleman:
This side letter agreement (the "Side Agreement") confirms the
agreement and understanding of eUniverse, Inc. ("eUniverse"), Take-Two
Interactive Software, Inc. ("T2"), and Xxxx X. Xxxxxxxxx with respect to the
shares of eUniverse common stock, par value $.001 (the "Shares") purchased by T2
from Xxxxxxx Xxxxxxx pursuant to that certain letter agreement dated of equal
date herewith by and among eUniverse, T2 and Xxxxxxx Xxxxxxx (the "Agreement")
and other shares of eUniverse common stock issued to T2 by eUniverse hereunder.
All capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed to them in the Agreement. The parties hereto hereby agree
as follows:
1. Demand Registration Rights.
1.1 After the date hereof and until the date on which the Subject Stock
(defined below) may be sold without any restriction pursuant to Rule 144(k)
promulgated under the Securities Act, as amended, if eUniverse shall receive a
written request (the "Demand") from T2 that eUniverse prepare and file with the
Securities and Exchange Commission (the "Commission") a registration statement
under the Securities Act of 1933, as amended (the "Securities Act") covering the
registration of the Shares (the "Subject Stock"), then eUniverse shall: (A)
prepare and file such registration statement within 60 days of such Demand, (B)
use its best efforts to cause the registration statement to be declared
effective as soon as possible after the filing thereof, and (C) to keep such
registration statement continuously effective under the Securities Act until
such date as is the earlier of (x) the date when all Subject Stock covered by
such registration statement has been sold or (y) the date on which the Subject
Stock may be sold without any restriction pursuant to Rule 144(k) promulgated
under the Securities Act, as such rule may be amended from time to time, as
determined by the counsel to eUniverse pursuant to a written opinion letter,
addressed to eUniverse's transfer agent to such effect. T2 shall not sell under
such registration statement more than the number of shares it would otherwise be
permitted to sell under Rule 144, assuming such rule was applicable to any sale
made by T2.
Notwithstanding anything in this Section 1 to the contrary, eUniverse
shall not be required to take any action to file a registration statement
pursuant to this Section at any time:
(i) beginning with the date of filing by eUniverse of a registration
statement covering an underwritten firm commitment public offering of
eUniverse's securities and ending 60 days after the effective date of any such
registration statement; or
(ii) after eUniverse has effected one registration pursuant to this
Side Agreement.
1.2 Indemnification.
(a) Indemnification by eUniverse. eUniverse will, and hereby does,
indemnify and hold harmless, in the case of any registration statement filed
pursuant to this Side Agreement, T2 of any registrable securities covered by
such registration statement against any losses, claims, damages or liabilities,
joint or several, to which T2 may become subject under the Securities Act or
otherwise, including, without limitation, the reasonable fees and expenses of
legal counsel, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under the Securities
October 30, 2000
Page 2
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances in
which they were made not misleading, and eUniverse will reimburse T2 for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that eUniverse shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to eUniverse through an instrument duly
executed by or on behalf of T2 specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of T2 and shall survive the
transfer of such securities by T2.
(b) Indemnification by T2. As a condition to any registration
statement, eUniverse shall have received an undertaking satisfactory to it from
T2 of the registrable securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this Section
1.2) eUniverse, and each director of eUniverse, each officer of eUniverse and
each other person, if any, who participates as an underwriter in the offering or
sale of such securities and each other person who controls eUniverse or any such
underwriter within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to eUniverse
through an instrument duly executed by T2 specifically stating that it is for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of eUniverse or any such director, officer or controlling person
and shall survive the transfer of such securities by T2.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 1.2,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 1.2, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation, provided, however,
that if the indemnified party reasonably believes it is advisable for it to be
represented by separate counsel because there exists a conflict of interest
between its interests and those of the indemnifying party with respect to such
claim, or there exist defenses available to such indemnified party which may not
be available to the indemnifying party, or if the indemnifying party shall fail
to assume responsibility for such defense, the indemnified party may retain
counsel satisfactory to it and the indemnifying party shall pay all reasonable
fees and expenses of such counsel. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written consent. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation or which requires action other than the payment of money by the
indemnifying party.
2. Election of Director. In connection with and in consideration of the
Transaction, eUniverse shall use its best efforts to cause an individual to be
designated by T2 to be elected and serve as a member of the Board
October 30, 2000
Page 3
of Directors of eUniverse. Accordingly, to effectuate the foregoing, the parties
hereby further agree as follows:
(i) Xxxx X. Xxxxxxxxx shall vote all shares of capital stock of
eUniverse owned by him for the election of the person to be determined by T2 to
the Board of Directors of eUniverse; and
(ii) When T2 and its affiliates own less than 500,000 shares of
eUniverse common stock, the person designated by T2 to be a member of the Board
of Directors of eUniverse will resign as a member of the Board of Directors of
eUniverse.
3. Issuance of Additional Shares. At the Closing, eUniverse shall issue 100,000
shares of eUniverse common stock to T2, and T2 shall purchase such shares, at a
price per share of $.01.
4. Schedule 13G. eUniverse shall prepare at its expense and cause a Schedule 13G
to be filed with the Commission on T2's behalf promptly following the Closing.
T2 shall cooperate with eUniverse to effect such filing.
5. General Provisions.
In the event that the Closing shall fail to be consummated by November
6, 2000, this Side Agreement shall terminate and have no further force or
effect.
Each of the parties hereto shall bear its own expenses in connection
with the Transactions.
This Side Agreement is binding upon the parties and their successor and
assigns.
Any provision of this Side Agreement held or determined by a court (or
other legal authority) of competent jurisdiction to be illegal, invalid, or
unenforceable in any jurisdiction shall be deemed separate, distinct and
independent, and shall be ineffective to the extent of such holding or
determination without (i) invalidating the remaining provisions of this Side
Agreement in that jurisdiction or (ii) affecting the legality, validity or
enforceability of such provision in any other jurisdiction.
Notices to be given hereunder by any party to the other parties must be
delivered to the addresses set forth at the outset of this Side Agreement, or to
new or additional addresses as may be designated in writing by any party.
This Side Agreement is to be governed by and construed in accordance
with the laws of the State of Connecticut.
This Side 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 Side Agreement may be
amended or modified only by an instrument in writing signed by all of the
parties hereto.
October 30, 2000
Page 4
Please acknowledge receipt of and agreement to the foregoing by signing
the enclosed copy of this letter where indicated below and returning it to the
undersigned by facsimile and regular mail.
Very truly yours,
eUNIVERSE, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
Its: Chairman
AGREED AND ACCEPTED:
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
With respect to Sections 2 and 4 only:
/s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx
