EXHIBIT 10.2
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
January 25, 2005
Transfer Online, Inc.
000 XX Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention:
RE: JAG MEDIA HOLDINGS, INC.
Ladies and Gentlemen:
Reference is made to that certain Equity Line Purchase Agreement (the
"Equity Line Purchase Agreement") dated as of April 9, 2002, as amended on July
8, 2004 and July 21, 2004, and the Promissory Note (the "Promissory Note") dated
January 25, 2005 pursuant to which the Company shall issue to Cornell Capital
Partners, LP (the "Investor") shares of JAG Media Holdings, Inc. (the "Company")
common stock as outlined in the Equity Line Purchase Agreement and the
Promissory Note. Pursuant to the transactions outlined in the Promissory Note
the Company has reserved for issuance out of the Company's authorized but
unissued shares of common stock three million five hundred thousand (3,500,000)
shares of the Company's common stock (the "Reserved Shares"). This letter shall
serve as our irrevocable authorization and direction to you to reserve in a
designated account to the Reserved Shares, thereby reducing the number of shares
available to the Company for future issuances for other purposes. The resale of
the Reserved Shares by the Investor has been registered with the Securities and
Exchange Commission under the Company's Registration Statement on Form SB-2
(Reg. No. 333-118029). The Reserved Shares shall be issued to the Investor,
either via physical stock certificates or through The Depository Trust Company
("DTC") as provided herein, from time to time, upon delivery to you of a
properly completed and duly executed Notice, in the form attached hereto as
Exhibit I, delivered on behalf of the Company and the Investor by Xxxxx
Xxxxxxxx, Esq.
Specifically, upon receipt by Xxxxx Xxxxxxxx, Esq. of a notification
from the Investor that the Investor is entitled to shares of the Company's
Common Stock pursuant to the Equity Line Purchase Agreement, Xxxxx Xxxxxxxx,
Esq., on behalf of the Company and the Investor, shall as soon as practicable,
but in no event later than one (1) Trading Day (as defined below) after receipt
of such notification, send, via facsimile, a Notice, which shall constitute an
irrevocable instruction to you to process such Notice in accordance with the
terms of these instructions. Upon your receipt of a copy of the Notice, you
shall use your best efforts to, within three (3) Trading Days following the date
of receipt of the Notice, (A) issue and surrender to a common carrier for
overnight delivery to the address as specified in the Notice, a certificate,
registered in the name of the Investor or its designee, for the number of shares
of Common Stock to which the Investor is entitled as set forth in the Notice or
(B) provided you are participating in DTC's Fast Automated Securities Transfer
Program, upon the request of the Investor, credit such aggregate number of
shares of Common Stock to which the Investor is entitled to the Investor's or
its designee's balance account with DTC through its Deposit Withdrawal At
Custodian ("DWAC") system provided the Investor causes its bank or broker to
initiate the DWAC transaction. ("Trading Day" shall mean any day on which the
Nasdaq Market is open for customary trading.)
The Company and Transfer Online, Inc. ("Transfer Online") hereby
acknowledge that Xxxxx Xxxxxxxx, Esq. is general counsel to the Investor, a
partner of the general partner of the Investor and counsel to the Investor in
connection with the transactions contemplated and referred herein. The Company
and Transfer Online agree that in the event of any dispute arising in connection
with this Agreement or otherwise in connection with any transaction or agreement
contemplated and referred to herein, Xxxxx Xxxxxxxx, Esq. shall be permitted to
continue to represent the Investor. The Company and Transfer Online will not
seek to disqualify such counsel.
The Company hereby confirms to Transfer Online and the Investor and
authorizes Transfer Online to issue to Investor, certificates representing the
shares of Common Stock without any legend restricting transfer of the Common
Stock thereby, based upon the written representation and warranty by the
Investor or its broker that the Investor has complied with the prospectus
delivery requirements, and that the Common Stock is not subject to any
stop-transfer restrictions and shall otherwise be freely transferable on the
books and records of the Company.
In order to issue the Common Stock as contemplated herein the Company
hereby confirms and Transfer Online acknowledges that in the event Counsel to
the Company does not issue an opinion of counsel as required to issue the Common
Stock free of legend the Company authorizes and Transfer Online will accept an
opinion of Counsel from Xxxxx Xxxxxxxx, Esq.
The Company hereby confirms to Transfer Online and the Investor that no
instructions other than as contemplated herein will be given to Transfer Online
by the Company with respect to the Reserved Shares. Such Reserved Shares shall
remain in reserve with Transfer Online until the Company and the Investor
mutually provide Transfer Online instructions that the shares of Common Stock
may be removed from the designated account. The Company hereby agrees that it
shall not replace Transfer Online as the Company's transfer agent during the
term of this Agreement without giving prior written notice to the Investor and
without first obtaining the agreement therefore from such successor transfer
agent.
During the term of this Agreement, Transfer Online shall not resign as
transfer agent for the Company until the Company obtains a suitable replacement
that will agree to serve as transfer agent and to be bound by the terms and
conditions of these Transfer Agent Instructions.
The Company and Transfer Online hereby acknowledge and confirm that
complying with the terms of these Transfer Agent Instructions does not and shall
not prohibit Transfer Online from satisfying any and all responsibilities and
duties it may owe to the Company.
The Company acknowledges that the Investor is relying on the
representations and covenants made by the Company hereunder and are a material
inducement to the Investor entering into the Promissory Note dated January 20,
2005 (the "Promissory Note"). The Company further acknowledges that without such
representations and covenants of the Company made hereunder, the Investor would
not enter into the Promissory Note.
The Company specifically acknowledges and agrees that in the event of a
breach or threatened breach by a party hereto of any provision hereof, the
Investor will be irreparably damaged and that damages at law would be an
inadequate remedy if these Transfer Agent instructions were not specifically
enforced. Therefore, in the event of a breach or threatened breach by a party
hereto, including, without limitation, the attempted termination of the agency
relationship created by this instrument, the Investor shall be entitled, in
addition to all other rights or remedies, to an injunction restraining such
breach, without being required to show any actual damage or to post any bond or
other security, and/or to a decree for specific performance of the provisions of
these Transfer Agent Instructions.
Indemnity Agreement
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In consideration of Transfer Online, Inc. an Oregon Corporation and
transfer agent for JAG Media, Inc. (Company), acting as party to this agreement,
Company assumes full responsibility and agrees to indemnify and save harmless
Transfer Online from and against all liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every kind and, nature and character
which Transfer Online may incur as a result of acting as Company's Transfer
Agent pursuant to this agreement; provided, however, that the provisions of this
paragraph shall not apply to such liabilities, losses, damages, costs, charges,
counsel fees or other expenses to the extent they have resulted primarily from
the gross negligence or willful misconduct of Transfer Online.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this letter agreement
regarding Irrevocable Transfer Agent Instructions to be duly executed and
delivered as of the date first written above.
JAG MEDIA HOLDINGS, INC.
By:
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman of the Board and Chief
Executive Officer
CORNELL CAPITAL PARTNERS, LP.
By: Yorkville Advisors, LLC
Its: General Partner
By:
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Name: Xxxx Xxxxxx
Title: President and Portfolio Manager
By:
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Name: Xxxxx Xxxxxxxx, Esq.
TRANSFER ONLINE, INC.
By:
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Name: Xxxx Xxxxxxxxxx
Title: President and CEO
EXHIBIT I
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TO TRANSFER AGENT INSTRUCTIONS
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FORM NOTICE
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Reference is made to the Equity Line Purchase Agreement (the "Equity
Line Purchase Agreement") dated April 9, 2002 as amended on July 8, 2004 and
July 21, 2004, and the Promissory Note (the "Promissory Note") between JAG Media
Holdings, Inc. (the "Company"), and Cornell Capital Partners, LP, dated January
___, 2005. In accordance with and pursuant to the Equity Line Purchase Agreement
and the Promissory Note, the undersigned hereby instructs Transfer Online, Inc.
to issue to Cornell Capital Partners, LP shares of the Company's common stock in
the amount indicated below. The undersigned hereby represents and warrants that
Cornell Capital Partners, LP has complied with the prospectus delivery
requirements with respect to the shares issued hereby.
Shares to be Issued:
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Please issue the shares of Common Stock noted above as per one of the following
three alternatives:
1. Issue to:
Overnight Courier To:
Authorized Signature:
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Name:
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Title:
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Phone #:
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OR
2. DWAC through DTC as follows:
Broker DTC Participant Code:
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Account Number*:
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For the Benefit of Cornell Capital Partners, LP
OR
3. Through DTC (only applicable after the Company's shares have been
readmitted to DTC)
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Xxxxx Xxxxxxxx, Esq.
* NOTE THAT RECEIVING BROKER MUST INITIATE TRANSACTION ON DWAC SYSTEM.
