Exhibit 10.2
Cross Media Marketing Corporation
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
January 25, 2000
Lancer Offshore Inc.
Xxxx Xxxxxxxxx 0
Xxxxxxx, Xxxxxxxxxxx Antilles
Capital Research, Ltd.
00000 Xxxxx Xxxxxxxxx
Xxx Xxxx Xxxx, Xxxxxxxxxx 00000
Mr. Xxxx Xxxxxx
c/o GHM, Inc.
00 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xx. Xxxxxx Xxxxxxxx
c/o GHM, Inc.
00 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Letter Agreement
Gentlemen:
Reference is made to the Certificate of Designation (the "Certificate")
creating the series of preferred stock of Cross Media Marketing Corporation, a
Delaware corporation (f/k/a Symposium Corporation, the "Company"), designated as
the Series C Convertible Preferred Stock, par value $.001 per share (the "Series
C Shares"), the Term Sheet describing the terms upon which the Series C Shares
were offered and sold to each of you (the "Series C Holders") on January 28,
2000 and the Term Sheet describing the terms upon which additional Series C
Shares were offered and sold to Lancer Offshore and Capital Research, Ltd. on
June 14, 2000 (collectively, the "Series C Term Sheets") and the letter
agreements, dated as of April 24, 2000 (the "April 24 Agreement"), May 30, 2000
(the "May 30 Agreement"), July 18, 2000 (the "July 18 Agreement") and December
2000 (the "December Agreement" and, together with the April 24 Agreement and the
May 30 Agreement, the "Agreements"). The Certificate, the Series C Term Sheets
and the Agreements are hereinafter collectively referred to as the "Documents."
The Documents provide, among other things, that, the Series C Shares are
mandatorily redeemable by the Company on or prior to January 26, 2001 and that
if the Company fails to redeem the Series C Shares in full on or prior to
January 26, 2001, the Company will be required to issue to the Series C Holders,
monthly in advance until the Series C Shares are redeemed in full, certain
five-year warrants to purchase shares of the Company's common stock (the "Common
Stock") at an exercise price of $0.25 per share (the "Warrants").
This letter (this "Letter Agreement") sets forth our agreement, as
follows:
1. Notwithstanding any provision of the Documents to the contrary but
subject to Section 3 below, the Series C Shares will not be mandatorily
redeemable until February 15, 2001 (the "New Redemption Date") and the
requirement that the Company issue the Warrants will not become effective if the
Company redeems the Series C Shares in full on or before the New Redemption
Date.
2. The Series C Holders hereby confirm that, by their execution and
delivery of this Letter Agreement, they waive any default arising out of or
relating to the Company's failure to redeem the Series C Shares in full at any
time prior to the New Redemption Date.
3. If the Company has redeemed fifty percent (50%) or more of the
outstanding Series C Shares on or before the New Redemption Date and the closing
price of the Common Stock on the American Stock Exchange on the date prior to
the date of such redemption is not less than $1.75 per share, then the Series C
Holders shall immediately convert all then outstanding Series C Shares at the
conversion price of $1.00 per share (subject to anti-dilution adjustments as
provided in the Documents upon the occurrence of any of the events described
therein). Nothing set forth herein shall prevent any Series C Holder from
converting such Holder's Series C Shares in accordance with the Documents in
lieu of redemption.
4. The Series C Holders and the Company hereby confirm that all accrued
and unpaid dividends on the outstanding Series C Shares through the New
Redemption Date will be due and payable on the New Redemption Date or, if the
Company redeems the Series C Shares prior to the New Redemption Date, then on
the date of such redemption.
5. The Holders hereby waive any minimum notice requirements set forth in
the Documents with respect to the redemption of the Series C Shares provided
that such redemption occurs on or prior to the New Redemption Date.
6. The Company, on its own behalf and on behalf of each other Company
Releasing Party (as defined below) hereby releases each of the Holders and each
other Holder Releasing Party (as defined below), and each of the Holders, on its
own behalf and on behalf of each other Holder Releasing Party, hereby releases
the Company and each other Company Releasing Party, from any and all manner of
actions, causes of action, suits, claims, losses, damages, liabilities, fees,
costs, expenses, demands and any other forms of liability whatsoever in law or
in equity (collectively, the "Claims"), whether brought individually, on behalf
of a class, or derivately, that any such Holder, or the Company, ever had, now
has or hereafter can, shall or may have arising out of or relating to the
issuance, purchase and sale of the Series C Shares and the transactions and
agreements described in and contemplated by the Documents and this Letter
Agreement (and, in the case of Lancer and Capital Research, shall also include
Claims relating to the issuance, purchase and sale of the Company's Series A
Convertible Preferred Stock in January 2000 and the transactions and agreements
described in and contemplated by the Term Sheet relating to the Series A Shares,
and the letter agreements dated March ___ and ___, 2000 among the Company,
Lancer and Capital Research), including, without limitation, any Claims of
intentional wrongdoing, breach of fiduciary or other duty, misrepresentations,
breach of contract, corporate waste, or any Claim arising under Federal or state
securities laws or regulations. Notwithstanding the foregoing, the releases
contained herein shall in no way be construed to affect any party's right to
bring an action to enforce the terms of this Letter Agreement or any of the
Documents.
As used herein, "Company Releasing Party" means the Company and its
predecessors, successors, present and former affiliates, subsidiaries, assigns,
officers, directors, shareholders and agents; and "Holder Releasing Party" means
each Holder and its respective predecessors, successors, present and former
affiliates, subsidiaries, assigns, officers, directors, shareholders and agents.
7. Except as expressly provided herein, each of the Documents will
remain in full force and effect as originally executed and delivered by the
parties hereto. This Letter Agreement supersedes any prior understanding or
agreement, written or oral, among the parties hereto relating to the subject
matter hereof.
8. Concurrently with the execution and delivery hereof, the Company will
pay Capital Research a fee of $100,000 in connection with its services relating
to the negotiation of this Letter Agreement.
9. This Letter Agreement will be governed by the laws of the State of
New York applicable to contracts made and to be performed entirely within such
State. Any claims or disputes relating in any way to this Letter Agreement shall
be submitted to the New York State courts or the United States District Court
for the Southern District of New York and such courts shall have exclusive
jurisdiction over such claims or disputes. The
parties hereby consent to such venue and the personal jurisdiction of such
courts and agree not to contest such venue or assert any claims to move the
claim or dispute to another venue or forum. This Letter Agreement may be
executed in counterparts and by the parties hereto in separate counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
If the foregoing correctly sets forth our understanding, please so
indicate by signing an enclosed counterpart of this Letter Agreement and
returning it to the undersigned. Upon execution and delivery to the undersigned
of a counterpart of this Letter Agreement by each of the Holders, this Letter
Agreement will constitute a binding agreement among us.
Very truly yours,
CROSS MEDIA MARKETING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
Accepted and agreed to as of the date first above written:
LANCER OFFSHORE, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name:
Title:
CAPITAL RESEARCH, LTD.
By: /s/ Xxxxx Xxxxx
--------------------------
Name:
Title:
/s/ Xxxxxx Xxxxxxxx.
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XXXXXX XXXXXXXX
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
