Engagement Letter - JAG Media Holdings Inc. and RMC 1 Capital Markets Inc.
[JAGMEDIA LETTERHEAD]
December 10, 2002
RMC 1 Capital Markets, Inc.
5525 N. MacArthur Blvd., Suite 615
Irving, TX 75038
Attention: Mark White
Gentlemen:
This letter agreement (the "Agreement") will confirm the understanding between
JAG Media Holdings, Inc. (the "Company") and RMC 1 Capital Markets, Inc., a
Texas corporation (`you"), pursuant to which the Company has retained you to
identify, and assist in negotiations with, qualified parties interested in
purchasing shares of the Company's Class A common stock aggregating $500,000.00
(the "Financing").
1. Engagement. The Company hereby engages you, for the term of this Agreement,
to act as placement agent and you hereby agree, on a reasonable best efforts
basis, to act as placement agent, in connection with the Financing.
2. Fees and Expenses. As consideration for the services to be rendered by you
hereunder, the Company shall pay to you a transaction fee (the "Transaction
Fee"), payable upon consummation of the Financing, equal to five percent (5%) of
the "Gross Proceeds" (as hereinafter defined) received by the Company in
connection with the Financing. "Gross Proceeds" means the aggregate amount of
cash received (before deduction of the Transaction Fee) by the Company in
connection with the Financing. The Transaction Fee shall be your sole
compensation under this Agreement. You shall not be reimbursed by the Company
for any expenses incurred in connection with this agreement or otherwise, nor
shall any entity controlled by you or otherwise affiliated with you be entitled
to any fee or expense reimbursement in connection with the Financing.
3. Term. This Agreement shall automatically expire and terminate on the earlier
of:
(a) December 31, 2002 or
(b) Receipt by the Company of $500,000.00 of Gross Proceeds and
the payment to you of your Transaction Fee in connection with
the Financing.
4. Approval of Potential Investors/Termination of Discussions. The Company may
for any reason whatsoever, or for no reason at all (and without incurring any
obligation to make payment of any kind to you)
(a) decline any potential investor identified by you or
(b) terminate discussions, at any time, with any potential
investor identified by you.
5. Indemnification. You represent that you have not dealt with any finders,
placement agents or brokers of any kind in connection with this matter. If any
other party claims a commission, fee or other compensation by reason of any
dealings with you, or by reason of a claim to have
(a) produced any potential investor you have identified to the
Company or
(b) assisted in any aspect of the Financing, you agree to
indemnify and hold the Company harmless against all loss,
expenses, damages and claims which the Company (or any of its
affiliates) may incur in any action or proceeding in
connection with such claim (including, but not limited to,
reasonable attorneys' fees and expenses and any payments to
such other party).
6. Confidentiality.
(a) For the purposes of this Agreement, "Confidential Information"
shall mean any and all financial, business or technical
information furnished or disclosed, in whatever form or
medium, by the Company to you, including, but not limited to,
financial statements, projections and budgets, business,
strategic or marketing plans, employment, consultant or
commentator contracts and product or service information,
which is marked as confidential or proprietary by the Company,
or is not generally available to the public. "Confidential
Information" shall not include any item described above that:
(i) is or becomes generally known or available to the public
through no fault of you; (ii) was already known to you,
without restriction, prior to your receipt from the Company or
on the Company's behalf as evidenced by files in existence at
the time of such disclosure; (iii) is lawfully disclosed to
you by a third party who is not under any obligation of
confidentiality (contractual, fiduciary, statutory or other)
to the Company with respect to such Confidential Information;
or (iv) is at any time developed by you independently without
use of, or reference to, Confidential Information obtained
from or on behalf of the Company.
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(b) You agree that you will not disclose any Confidential
Information to any third party (including without limitation,
financial advisors, counsel and accountants), unless such
person has been advised of the confidential nature of the
Confidential Information and of the confidentiality
obligations under this Agreement and has agreed, in writing,
to be bound by the provisions of this paragraph 7. You shall
only use such Confidential Information to the extent necessary
to perform your services under this Agreement, and shall limit
access to Confidential Information to such of your employees
who have a bona fide need to know such Confidential
Information for the purpose of assisting you in the
performance of your services under this Agreement. You agree
to take all reasonable actions, by instruction, written
agreement or otherwise, to cause such employees to comply with
the confidentiality obligations of this Agreement. In the
event of any dissemination, disclosure, or use of the
Confidential Information which is not permitted by this
Agreement, you shall notify the Company immediately in writing
and will use reasonable efforts to assist the Company in
minimizing the damage from such disclosure. Notwithstanding
the foregoing, you may disclose Confidential Information
pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided,
however, that you shall notify the Company within five (5)
days of receipt of such court order or requirement to enable
the Company to seek a protective order or otherwise prevent or
restrict such disclosure.
(c) Upon the earlier of the (i) termination of this Agreement, or
(ii) the Company's request, you agree to promptly destroy or
return to the Company (as directed by the Company) all
Confidential Information and any materials, documents, or
information in all forms provided to you by the Company,
together with any and all copies thereof (whether in your
possession or otherwise). The confidentiality obligations set
forth in this Agreement shall remain in full force and effect
despite the destruction or return of such Confidential
Information.
(d) You acknowledge that the unauthorized use or disclosure of the
Confidential Information will cause irreparable harm to the
Company, causing damages which will be impossible to
calculate. Accordingly, you agree that the Company shall be
entitled, in addition to any and all other remedies available
at law or in equity, to injunctive relief to restrain any such
breach or to protect its rights under this Agreement, without
showing or proving any actual damage to the Company, and
without waiving any other rights or remedies. The rights and
remedies in this Agreement are in addition to but are not in
substitution for those provided in law and equity.
7. No Agency. It is understood and agreed that the you are an independent
contractor and shall not be deemed the Company's agent for any purpose
whatsoever, and you are not granted any right or authority to assume or create
any obligation or liability of any kind or nature, express or implied, on behalf
of the Company, to make any representation on behalf of the Company or to bind
the Company in any manner or thing whatsoever.
8. Non-Exclusive. This arrangement is expressly not exclusive and the Company
shall have the right to contract with brokers, agents or other persons for the
same or similar purposes as set forth herein.
9. Third Party Beneficiaries. This Agreement has been and is made solely for the
benefit of the Company and you, and our respective successors and permitted
assigns, and no other person or entity shall acquire or have any right under or
by virtue of this Agreement.
10. Assignment. This Agreement may not be assigned by you or the Company, in
whole or in part; provided, however, that the Company may assign this Agreement,
in whole or in part (or any of its rights or obligations hereunder, in whole or
in part) to any subsidiary or other affiliate of the Company or to any entity
which purchases all or substantially all of the stock, assets or beneficial
interest in the Company or any of its affiliates. Any such assignment by the
Company shall, as of the date of such assignment ("Assignment Date"),
automatically release the Company (and its affiliates, other than the assignee)
from any and all liabilities and obligations in connection with this Agreement
(including, without limitation, all liabilities and obligations which arise from
events prior to the Assignment Date). From and after the Assignment Date, you
shall look solely to the assignee with respect to all matters, liabilities and
obligations of any kind in connection with this Agreement. Any assignment not
permitted under this paragraph shall be null and void.
11. Entire Agreement; Modification. This Agreement incorporates the entire
agreement between you and the Company with respect to the subject matter hereof
and supercedes all previous agreements and understandings among the parties,
both written and oral. No provision hereof shall be deemed waived, amended or
modified by either party unless such waiver, amendment or modification shall be
in writing and signed by a duly authorized representative of the party against
whom the waiver, amendment or modification is sought to be enforced.
12. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas as applied to contracts made and
performed in such State, without regard to principles of conflicts of law. All
legal proceedings in connection with this Agreement (and the transactions
contemplated by this Agreement) shall be commenced in the state and federal
courts sitting in the County and City of Dallas..
13. Severability. Any determination that any provision of this Agreement may be,
or is, unenforceable shall not affect the remainder of this Agreement.
14. Headings. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not part of this Agreement.
15. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
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If the foregoing correctly sets forth our agreement, please confirm this by
signing and returning to me a duplicate original of this letter.
Sincerely yours,
JAG MEDIA HOLDINGS, INC.
By: /s/ Gary Valinoti
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Title: President & CEO
Name: Gary Valinoti
AGREED AND ACCEPTED:
RMC 1 CAPITAL MARKETS, INC.
By: /s/ D. Mark White
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Name: D. Mark White
Title: President