EXHIBIT 10.32
THIS CONTRACT IS SUBJECT TO ARBITRATION
UNDER THE TEXAS GENERAL ARBITRATION STATUTE
POWER OF ATTORNEY
AND CONTINGENT FEE CONTRACT
This agreement is made between Client (s), XXXXXXXX.XXX, INC., JAG
MEDIA HOLDINGS, INC., formerly known as XXXXXXXX.XXX, INC., a Nevada Corporation
doing business in the state of New York and the state of Florida (including its
current, former or successor directors in their official capacity for
Xxxxxxxx.Xxx, Inc. and Jag Media Holdings, Inc., XXXX XXXXXXXX, and any other
subsidiary, predecessor or successor in interest to XxxXxxxx.Xxx, Inc., referred
to as "Client" whether one or more and the LAW FIRM OF X'XXXXX, XXXXXXXX &
XXXXXX, hereinafter referred to as "Attorneys."
In consideration of the mutual promises herein contained, the parties
hereto agree as follows:
I. PURPOSE OF REPRESENTATION
1.01 The Client believes that it has legal claims and/or causes of
action to recover damages and compensation and/or shares of stock it issued or
that were issued on behalf of Clients pertaining to stock and related
transactions as well as other instruments of value against various brokerages
and market-makers trading clients' stock and other potential defendants that
attorneys choose to add as additional defendants as additional investigation and
discovery completed.
Client hereby retains and employs Attorneys to xxx for and recover all
damages and compensation and/or return of stock to which Client may be entitled
as a result of the legal claims and causes of action in question. The words "xxx
for and recover" shall mean either a lawsuit filed by Attorneys on behalf of
client against the Defendants and/or a counterclaim filed by Attorneys on behalf
of Client in a lawsuit first begun by any of the Defendants against Client.
1.02 It is specifically agreed and understood that Attorneys' duties
and obligations under this Contract are limited to the specific Client named
above and that Attorneys are not representing under this Contract or expected to
represent any other person or entity not named above as the Client. It is
further expressly agreed and understood that Attorneys' obligations are limited
to representing Client in the specific matters described in Paragraphs 1.01, and
1.03 and Client does not expect Attorneys to do anything else. Nonetheless,
Client expressly agrees that Attorneys can represent other persons or entities,
such as shareholders of Client, who are not named herein as a client in the same
lawsuit in which Attorneys are representing Client or in other lawsuits that are
similar to the lawsuit in which Attorneys are representing the Client.
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1.03 As part of this Contract, Attorneys will represent Client with
respect to any "compulsory counterclaim" filed by any of the Defendants
described in Paragraph 1.01 if such compulsory counterclaim arises out of the
transaction or occurence that is the subject matter of Client's lawsuit aginst
that Defendant. Further, should a Defendant described in Paragraph 1.01 above
file a lawsuit against Client that arises out of the transaction or occurence
that is the basis of Client's legal claims and causes of action and if the
matters being asserted in that lawsuit would be a compulsory counterclaim if
they were asserted against the Client in a lawsuit filed on behalf of the
Client, then Attorneys will represent the Cllient under this Contract. On the
other hand, if a counterclaim or lawsuit is filed against the Client that is not
covered by any prior sentence of this paragraph, Attorneys are not required to
represent Client under this Contract in such a lawsuit or counterclaim. The same
would be true as to any cross-claim or third party action filed against an
officer or director of Client; Attorneys are not obligated to represent such
officer or director of Client by virtue of this Contract. It is further
expressly agreed that if any compulsory counterclaim or lawsuit is filed by
Defendant which Attorneys would handle as part of the work they are doing under
this Contract, it is within the purview of the duty to defend by any insurance
policy, then Client or the officer or director of Client in question would not
only immediately notify Attorneys but would also immediately notify the
insurance company that issued the insurance policy and Cllient agrees to use its
best efforts to have Attorneys hired by any officer, director or "in-house" type
counsel of Client who is sued to use his or her best efforts to accomplish the
same goal. It is important to Attorneys' efforts to represent Client that
Attorneys be in charge of the representation of Client and any of its officers
or directors who are sued regarding any of the matters that are subject matter
of Client's legal claims and causes of action in question so that there is a
common theme and strategy and overall conduct of the litigation. Furthermore, if
any lawsuit or counterclaim or cross-action is filed against Client or an
officer or director of Client by any Defendant described in Paragraph 1.01 that
is not a matter to be handled by Attorneys under this Contract as previously
decribed, it may or may not be important to Attorneys' efforts to represent
Client under this Contract. Client agrees to use its best efforts to have
X'Xxxxx, Xxxxxxxx & Xxxxxx immediately informed of such legal action and a copy
of such legal action to be immediately delivered to Attorneys. Client further
agrees to use its best efforts to immediately notify any insurance company that
may have issued an insurance policy that may provide a duty to defend any such
legal action filed against an officer or director of Client. If Client and
Attorneys mutually agree that it is in the best interest of both of them for
Atorneys to handle on behalf of Client and/or officer or director of Client any
such legal action, then Client agrees to use its best efforts to cause said
insurance company to handle any such legal action and to use its best efforts to
have any officer or director of Client who is subjected to any such legal action
to use his or her best efforts to cause the insurance company to hire and use
Attorneys to represent them with regard to such legal action. If Client or
director or officer of Client wishes for Attorneys to represent it or said
officer or director of Client must execute a new, seperate Contract hiring
Attorneys pertaining to such representation. Client further agrees that any
Attorneys' fees paid by the insurance company to Attorneys regarding the matters
dicussed in this paragraph, such fees shall belong to Attorneys and will not be
used as a credit or reduction of the Attorneys' fees that Attorneys are entitled
to under this Contract.
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II. ATTORNEYS' FEES
2. In consideration of the services rendered and to be rendered to
Client by Attorney, Client does hereby assign, grant and convey to Attorney the
following present undivided interests in all Client's legal claims and causes of
action in question for and as a reasonable fee for Attorney's services and said
contingent attorneys' fee will be figured on the total net recovery or
settlement:
40% of any settlement or net recovery (including the value of any
non-monetary recovery) made before or after the suit is filed
thereon; or of any settlement or recovery made after a notice
of appeal has been given or an appeal bond has been filed.
A net recovery is the amount remaining of the settlement or recovery after
deducting any charges or expenses of litigation incurred by Attorneys.
2.02 Client agrees that Attorneys are to be repaid and reimbursed out
of Client's recovery for all Court costs and expenses of litigation Attorney has
paid and incurred. Client agrees that Attorney may borrow funds from a
commercial bank to finance or pay such Court costs and litigation expenses and
the reasonable interest charged by the bank on such borrowed funds will be added
to the Court costs and litigation expenses to be deducted from the settlement or
recovery. The attorney fees will be figured on the total recovery or settlement
after deducting the Court costs and litigation expenses reimbursed to Attorneys
("net recovery or settlement" as used above). If Attorneys do not obtain for
client a settlement or recovery, then the Client will not pay any fees or
expenses.
The parties anticipate that this engagement will involve multiple
parties and defendants and perhaps multiple lawsuits. In the event that this
case is resolved at different times with different defendants for various dollar
amounts, Client and Attorneys agree that for the first three (3) defendants that
settle, no more than five percent (5%) of the gross settlement of each of the
first three settling parties will be deducted toward the reduction of the total
expenses incurred to date in determining the net recovery. After settlements
with the first three settling parties have made settlements, deduction of all
expenses remaining from the first settlements and any and all additional
expenses shall be done in accordance with the deduction of expenses for
determination of "Net Recoveries" as set forth in Paragraph 2.01. Client and
Attorneys agree that at any time upon reasonable notice Client may review
expenses incurred by Attorneys.
2.03 The "Total Value of Any Recovery or Settlement" also includes the
value any business deal or transaction entered into by Client herein with one or
more Defendants and/or their successors heirs or assigns. If any such business
deal or transaction occurs, the parties shall mutually agree on the value of
such business deal or transaction to be used to calculate the fees to be paid
Attorneys and filling such an agreement, the value of such business deal or
transaction will be determined by arbitration pursuant to Paragraph X.
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2.04 In the event that Attorneys and Client cannot agree on the value
of any item or thing that Attorneys believe should be included in the Total
Recovery of Settlement, the value will be resolved by arbitration pursuant to
Paragraph X.
2.05 If Client makes any agreement or takes any action which either
releases the claims of Client or the causes of action in question or prejudices
their value or prejudices Attorneys' rights or ability to prosecute them and to
earn the fees above described, then Attorneys shall have the option to withdraw
from this case without prejudice to Attorneys right to receive fees and expenses
to which Attorneys are entitled to pursuant to this Agreement. In the event of
such withdraw, Attorneys shall have the option of a) charging and being paid a
fee calculated pursuant to this Agreement based on the value of tany
tranascation between Client and any Defendant during the subsequent 8 years; or,
b) charging and being paid a fee calculated pursuant to this Agreement based on
a fair valuation of what Attorneys would probably have otherwise recovered for
Clients, such as valuation to be set by mutual agreement or, failing that, by
arbitration pursuant to Paragraph X.
2.06 In consideration of the Attorneys' fee charged by Attorneys in
Paragraph 2.01 and agreed to be paid by the Client, Client has requested and
Attorneys have agreed to defend a compulsory counterclaim as defined in
Paragraph 1.03. It is further agreed that the Attorneys Fee as set forth in
Paragraph 3.01 shall not be offset, reduced nor affected by any credit, set off
or judgment against client as a result of a counterclaim or an action against
Client.
2.07 If the Clients' case is tried and Attorneys' fees are awarded as a
result of such trial, the Attorneys have the option, to be exercised by
Attorneys in their sole judgment, to accept and be paid the Attorneys' fees
awarded versus fees awarded above.
III. ASSIGNMENT OF INTEREST
3.01 In consideration of Attorneys' services, the Client hereby conveys
and assigns to Attorneys and agrees to pay to Attorneys an undivided interest in
and to all of Client's legal claims and causes of action to the extent of the
percentage set out in Paragraph 2.01.
3.02 If there is any type of settlement whereby the client is to
receive or be paid future payments, then the settlement will be reduced to
present value, and the settlement will be arranged whereby there will be
sufficient cash at the time of the settlement to pay the attorney's fees which
will be figured on the present value of the total settlement including the
present value of future payments. Such discounting will be computed at the
market discount rate.
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3.03 All sums due and to become due are payable at the office of
X'Xxxxx, Xxxxxxxx & Xxxxxx in Xxxxxx County, Texas. Client hereby authorizes the
Attorneys to endorse and negotiate any check, draft or negotiable instrument on
behalf of the client, to deposit the same in Attorneys' trust account, and to
distribute such funds pursuant to the terms of this Agreement.
IV. APPROVAL NECESSARY FOR SETTLEMENT
4.01 No settlement of any nature shall be made without Client's
approval, and Client agrees to make no settlement or offer of settlement without
the approval of the Attorneys.
4.02 Attorneys are hereby granted a power of attorney so that they may
have full authority to prepare, sign and file all legal instruments, pleadings,
drafts, authorizations, and papers as shall be reasonably necessary to conclude
this representation including settlement and/or reducing to possession any and
all monies or other things of value due to the Client under his claim as fully
as the Client could so do in person. Attorneys are also authorized and empowered
to act as Client's negotiator in any and all settlement negotiations concerning
the subject of this Agreement.
V. REPRESENTATIONS
5. It is understood and agreed that Attorneys cannot warrant or
guarantee the outcome of the case and Attorneys have not represented to the
Client that the Client will recover all or any of the funds so desired. Client
realizes that Attorneys will be investigating the law and facts applicable to
his claim on a continuing basis and should Attorneys learn something which in
the opinion of Attorneys makes it impractical for Attorneys to proceed with the
handling of Client's claim, then Attorneys may withdraw from further
representation of Client by sending written notice to Client's last known
address.
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VI. COOPERATION OF CLIENT
6.01 Client agrees to cooperate with Attorneys at all times and too
comply with all reasonable requests of Attorneys. Client further agrees to keep
Attorneys advised of his/her whereabouts at all times, and to provide Attorneys
with any change of address, phone number or business affiliation.
6.02 Attorneys may, at their option, withdraw from the case and cease
to represent the Client should Client fails to comply with any portion of this
Agreement or should Attorneys or either of them decide that he or she cannot
continue to be involved in this case. Such withdraw will be effective by mailing
written notice to Client's last known address. Such withdraw on the part of
Attorneys shall be consistent with the rules governing the attorney/client
relationship promulgated by the State Bar of Texas.
VII. ASSOCIATION OF OTHER ATTORNEYS
7. Attorneys may, at their own expense, use or associate other
attorneys in the representation of the aforesaid claims of the Client. X'Xxxxx,
Xxxxxxxx & Xxxxxx is a limited liability partnership with a number of attorneys.
Various of those attorneys may work on Client's case. The attorney in charge
will be the attorney who signs at the end of this Agreement unless such is
changed in writing. Client agrees that Xxxx X. X'Xxxxx, Xxxxxxx X. Xxxxxxxx &
Xxxxxx X. Xxxxxx are not personally representing Client by virtue of this
contract.
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VIII. TEXAS LAW TO APPLY
8.01 This Agreement shall be construed under and in accordance with the
laws of the State of Texas, and the rights, duties and obligations of Client and
of Attorneys regarding Attorneys' representation of Client and regarding
anything covered by this Agreement shall be governed by the laws of the State of
Texas. Any suit between Client and Attorneys or either of them regarding
Attorneys' representation of Client or regarding anything covered by this
agreement will be filed in a Court of competent jurisdiction in Xxxxxx County,
Texas.
IX. ARBITRATION
9.01 Any and all disputes, controversies, claims or demands arising out
of or relating to this Agreement or any provision hereof, the providing of
services by Attorneys to Client, or in any way relating to the relationship
between Attorneys and Client, whether in contract, tort or otherwise, at law or
in equity, for damages or any other relief, shall be resolved by binding
arbitration pursuant to the Federal Arbitration Act in accordance with the
Commercial Arbitration Rules then in effect with the American Arbitration
Association. Any such arbitration proceeding shall be conducted in Xxxxxx
County, Texas. This arbitration provision shall be enforceable in either federal
or state court in Xxxxxx County, Texas pursuant to the substantive federal laws
established by the Federal Arbitration Act. Any party to any award rendered in
such arbitration proceeding may seek a judgment upon the award and that judgment
may be entered by any federal or state court in Xxxxxx County, Texas having
jurisdiction.
X. BANKRUPTCY PROVISIONS
XI. PARTIES BOUND
11. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators, legal
representative, successors and assigns.
XII. LEGAL CONSTRUCTION
12. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provisions thereof and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had never been contained
herein.
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XIII. PRIOR AGREEMENTS SUPERSEDED
13. This Agreement constitutes the sole and only Agreement of the
parties hereto and supersedes any prior understandings or written or oral
agreement between the parties respecting the within subject matter.
I certify and acknowledge that I have had the opportunity to read this
Agreement. I further state that I have voluntarily entered into this Agreement
fully aware of its terms and conditions.
Signed and accepted this 14th day of June, 2002.
XXXXXXXX.XXX, INC. X'XXXXX, XXXXXXXX & XXXXXX
By /s/ Xxxx Xxxxxxxx By /s/ Illegible
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Xxxx Xxxxxxxx
