EXHIBIT 10.39
SUBSCRIPTION AGREEMENT
September 25, 2003
JAG Media Holdings, Inc.
0000 X.X. 00xx Xxxxxx, Xxxxx X00
Xxxx Xxxxx, XX 00000
Attention: Board of Directors
Dear Sirs:
1. The undersigned (the "Purchaser") hereby offers to subscribe to (a)
35,000 shares (the "Class A Shares") of Class A common stock, par value $0.00001
per share, of JAG Media Holdings, Inc., a Nevada corporation (the "Company") and
(b) 1,500 shares (the "Series 3 Shares") of Series 3 Class B common stock, par
value $0.00001 per share (collectively, the "Shares"), and pay therefore a total
consideration of $50,000.00. It is understood that the Company will deliver to
the Purchaser certificates for the Shares against payment to the Company of the
purchase price thereof. The rights and preferences of the Series 3 Shares are
set forth in the Certificate of Designation attached hereto as Exhibit A.
2. The Purchaser hereby represents and warrants to the Company that it
is acquiring the Shares solely for its own account for investment, and not as a
nominee for any other party, and not with a view to the distribution thereof or
with any present intention of selling any thereof. The Purchaser acknowledges
that it has been informed by the Company that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and that the Shares must be held indefinitely unless subsequently registered
under the Securities Act or an exemption from such registration is available.
The Purchaser also acknowledges that it is fully aware of the restrictions on
disposing of the Shares resulting from the provisions of the Securities Act and
the General Rules and Regulations of the Securities and Exchange Commission
thereunder (including, without limitation, Rule 144). The Purchaser hereby
confirms and acknowledges that it will not offer, sell or otherwise dispose of
any of the Shares except under circumstances that will not result in a violation
of the Securities Act or any applicable state securities laws. Further, the
Purchaser acknowledges (i) that the purchase of the Shares is a long term
investment and (ii) that the Purchaser must bear the economic risk of the
investment for an indefinite period of time because the Shares have not been
registered under the Securities Act or any state securities laws and that the
Purchaser's financial condition is such that it is not likely that it will be
necessary to dispose of any of the Shares in the foreseeable future.
3. (a) Each certificate representing Shares shall be endorsed with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR STATE SECURITIES LAWS,
AND NO TRANSFER OF THESE SECURITIES MAY BE MADE EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (B) PURSUANT TO AN EXEMPTION
THEREFROM WITH RESPECT TO WHICH THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL
FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE REQUIREMENTS OF THE ACT.
(b) Each certificate representing Series 3 Shares shall also be
endorsed with the following legend:
THE MANDATORY REDEMPTION PROVISIONS, DIVIDEND RIGHTS, VOTING POWERS,
PREFERENCES, LIMITATIONS, RESTRICTIONS AND OTHER RIGHTS OF THE SERIES 3 CLASS B
COMMON STOCK OF THE CORPORATION ARE SET FORTH IN FULL IN THE CERTIFICATE OF
DESIGNATION OF THE SERIES 3 CLASS B COMMON STOCK OF THE CORPORATION, WHICH IS ON
FILE WITH THE SECRETARY OF STATE OF THE STATE OF NEVADA AND AVAILABLE FREE OF
CHARGE FROM THE SECRETARY OF THE CORPORATION UPON THE REQUEST OF ANY STOCKHOLDER
OF THE CORPORATION.
4. The Purchaser has such experience and knowledge in financial and
business matters to be capable of evaluating the merits and risks of the
investment contemplated hereby and has reviewed the merits of such investment
with tax and legal counsel and other advisors to the extent deemed advisable.
The Purchaser has been given the opportunity to ask questions of, and receive
answers from, JAG Media Holdings, Inc. concerning the investment and to obtain
any additional information the Purchaser deemed necessary. The Purchaser is an
"accredited investor" as defined in Rule 501 under the Securities Act.
5. The Purchaser represents that it has not dealt with any finders,
placement agents or brokers of any kind in connection with this matter.
6. (a) Whenever the Company proposes to register any of shares of its
Class A Common Stock, par value $0.00001 per share ("Class A Common Stock"),
under the Securities Act (whether for the Company's own account or for the
account of any other person) other than in connection with a registration
relating either to the sale of securities to participants in a Company stock
option, stock purchase or similar benefit plan or pursuant to a Rule 145
transaction, including, without limitation, on Form S-4 or Form S-8, and the
registration form to be used may be used for the registration of the Class A
Shares being issued to the Purchaser hereunder (a "Piggyback Registration"), the
Company shall give prompt, written notice to the Purchaser of its intention to
effect such a registration, and such notice shall offer the Purchaser the
opportunity to register on the same terms and conditions such number of Class A
Shares of the Purchaser as Purchaser may request. The Company shall include in
such registration all Class A Shares with respect to which the Company has
received a written request for inclusion therein by the Purchaser within ten
(10) days after their receipt of the Company's notice. Such requests for
inclusion shall specify the number of Class A Shares intended to be disposed of
and the intended method of distribution thereof.
(b) If a Piggyback Registration is an underwritten, primary
registration on behalf of the Company, and the managing underwriters advise the
Company in writing that, in their opinion, the number of securities requested to
be included in such registration are such that the success of the offering would
be materially and adversely affected, the Company shall include any securities
the Company is so advised can be sold in such Piggyback Registration in the
following order: (a) first, the shares of Class A Common Stock which the Company
proposes to sell; (b) second, the Class A Shares requested to be included in
such registration by the Purchaser, provided, that if the managing underwriters
determine in good faith that a lower number of Class A Shares should be included
than those requested to be included pursuant to (b), then the Company shall be
required to include in such registration only that lower number of Class A
Shares; and (c) third, any other shares of Class A Common Stock proposed to be
included in such registration.
(c) If a Piggyback Registration is an underwritten, secondary
registration on behalf of holders of shares of Class A Common Stock, and the
managing underwriters advise the Company in writing that, in their opinion, the
number of securities requested to be included in such registration exceeds the
number which the Company is advised can be sold in such offering, the Company
shall include in such registration all the shares of Class A Common Stock which
such holders proposed to sell and all the Class A Shares requested to be
included in such registration by the Purchaser; provided, that if the managing
underwriters determine in good faith that a lower number of shares should be
included than those requested to be included, then the Company shall be required
to include in such registration only that lower number of shares.
7. The Company will enter appropriate stop-transfer orders on any
register or records maintained by or on behalf of the Company with respect to
the Shares to insure that the Shares are not transferred except in accordance
with this letter.
8. The Purchaser is a limited partnership organized under the laws of
the State of Delaware.
9. The Company makes no representations or warranties whatsoever,
whether express or implied, hereunder.
Very truly yours,
KUEKENHOF EQUITY FUND L.P.
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Managing Partner
Date: 10/03/03
Address:
00 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
ACCEPTED:
JAG MEDIA HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: President & CEO
Date: 10/10/03
Exhibit A
CERTIFICATE OF DESIGNATION
OF THE
SERIES 3 CLASS B COMMON STOCK
($0.00001 PAR VALUE PER SHARE)
OF
JAG MEDIA HOLDINGS, INC.
The undersigned, the duly elected and acting president of JAG Media
Holdings, Inc., a Nevada corporation (the "Corporation"), pursuant to Nevada
Revised Statutes 78.1955, does hereby certify that the Board of Directors of the
Corporation adopted the following resolution pursuant to the authority of
Section 78.195 of the Nevada Revised Statutes and Article FOURTH of the
Corporation's Articles of Incorporation, as amended:
RESOLVED, that the Corporation's Class B common stock shall consist of
three series: Series 1 Class B common stock, the terms and conditions of which
are set forth in the Articles of Incorporation of the Corporation, as amended
(the "Articles"), Series 2 Class B common stock, the terms and conditions of
which are set forth in the Certificate of Designation of the Series 2 Class B
Common Stock filed with the Secretary of State of the State of Nevada on April
11, 2003 and Series 3 Class B common stock, par value $0.00001 per share, whose
terms and conditions are set forth below:
Series 3 Class B common stock
(a) Designation and Amount. The shares of such series shall be
designated as "Series 3 Class B common stock" and the initial number of shares
constituting such series shall be Forty Thousand (40,000).
(b) No Voting Rights. Except as required by law, holders of shares of
Series 3 Class B common stock shall not be entitled or permitted to vote on any
matter required or permitted to be voted upon by the stockholders of the
Corporation.
(c) Distribution of Assets. Upon the dissolution, liquidation or
winding up of the Corporation, subject to the rights, if any, of the holders of
any of the Corporation's securities other than common stock, the holders of the
Series 3 Class B common stock, Series 2 Class B common stock Series 1 Class B
common stock and Class A common stock will be entitled to receive all the assets
of the Corporation available for distribution to its stockholders ratably in
proportion to the number of shares held by them.
(d) Dividends. Holders of Series 3 Class B common stock, Series 2 Class
B common stock and Class A common stock shall be entitled to receive, on an
equal basis, such dividends, payable in cash or otherwise, as may be declared
thereon by the Board of Directors from time to time out of the assets or funds
of the Corporation legally available therefor.
(e) Mandatory Redemption. (1) No redemption of the Series 3 Class B
common stock shall be authorized or made except as provided herein. Each share
of the Series 3 Class B common stock must be redeemed by the Corporation, to the
fullest extent permitted by law, within six (6) months (or as soon thereafter as
permitted by law) following final resolution of the Corporation's lawsuit
against certain brokerage firms (JAG Media Holdings, Inc. v. X.X. Xxxxxxx & Sons
et al) which is, as of the date of this resolution, pending in U.S. District
Court for the Southern District of Texas or any successor or other lawsuit
relating to the subject matter thereof in which the Corporation (or any
successor-in-interest) is named as a plaintiff (the "Lawsuit"), which date shall
be determined by the Board of Directors (the "Redemption Date"). The Redemption
Price for each share of the Series 3 Class B common stock shall be equal to the
greater of (i) par value or (ii) .0025% of ten percent of the net proceeds to
the Corporation of the Lawsuit after payment of fees and expenses incurred in
connection with such lawsuit and all taxes on net income accrued or paid with
respect to such amount, which amount shall be rounded to the nearest whole cent.
Notice of the redemption by the Corporation of the outstanding shares of Series
3 Class B common stock (the "Redemption Notice") shall be given by first class
mail, postage prepaid, mailed not less than 30 days prior to the Redemption
Date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation; provided,
however, that no failure to give such notice, nor any deficiency therein, shall
affect the validity of the procedure for the redemption of any shares of Series
3 Class B common stock to be redeemed except as to the holder or holders to whom
the Company has failed to give such notice or whose notice was defective. The
Redemption Notice shall state:
(A) the Redemption Price;
(B) the Redemption Date;
(C) that the holder is to surrender to the Corporation, at the
place or places, which shall be designated in such redemption notice,
its certificates representing the shares of Series 3 Class B common
stock to be redeemed;
(D) that dividends on the shares of the Series 3 Class B common
stock to be redeemed shall cease to accumulate on the day prior to the
Redemption Date unless the Corporation defaults in the payment of the
Redemption Price; and
(E) the name of any bank or trust company performing the duties
referred to in subsection (e)(5) below.
(2) On or before the Redemption Date, each holder of Series 3 Class B
common stock to be redeemed shall surrender the certificate or certificates
representing such shares of Series 3 Class B common stock to the Company, in the
manner and at the place designated in the Redemption Notice, and on the
Redemption Date the Redemption Price for such shares shall be payable to the
holder thereof whose name appears on such certificate or certificates and who
appears on the stock transfer records of the Corporation as the owner thereof,
and the shares represented by each surrendered certificate shall be returned to
authorized but unissued shares.
(3) Unless the Company defaults in the payment in full of the
Redemption Price, dividends on the Series 3 Class B common stock called for
redemption shall cease to accumulate on the day prior to the Redemption Date,
and the holders of such shares shall cease to have any further rights with
respect thereto on the Redemption Date, other than the right to receive the
Redemption Price, without interest.
(4) If a Redemption Notice shall have been duly given, and if, on or
before the Redemption Date specified therein, all funds necessary for such
redemption shall have been set aside by the Corporation, separate and apart from
its other funds, in trust for the pro rata benefit of the holders of the Series
3 Class B common stock called for redemption so as to be and continue to be
available therefor, then, notwithstanding that any certificate for shares so
called for redemption shall not have been surrendered for cancellation, all
shares so called for redemption shall no longer be deemed outstanding, and all
rights with respect to such shares shall forthwith on such Redemption Date cease
and terminate, except only the right of the holders thereof to receive the
amount payable on redemption thereof, without interest.
(5) If a Redemption Notice shall have been duly given or if the
Corporation shall have given to the bank or trust company hereinafter referred
to irrevocable authorization promptly to give such notice, and if on or before
the Redemption Date specified therein the funds necessary for such redemption
shall have been deposited by the Corporation with such bank or trust company in
trust for the pro rata benefit of the holders of the Series 3 Class B common
stock called for redemption, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, from and after the time of such deposit, all shares so called, or
to be so called pursuant to such irrevocable authorization, for redemption shall
no longer be deemed to be outstanding and all rights with respect to such shares
shall forthwith cease and terminate, except only the right of the holders
thereof to receive from such bank or trust company at any time after the time of
such deposit the funds so deposited, without interest. The aforesaid bank or
trust company shall be organized and in good standing under the laws of the
United States of America or of any state thereof. Any interest accrued on such
funds shall be paid to the Corporation from time to time. Any funds so set aside
or deposited, as the case may be, and unclaimed at the end of three years from
such Redemption Date shall, to the extent permitted by law, be released or
repaid to the Corporation, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for payment thereof.
(6) All interpretations of the redemption provisions contained in this
Section (e) and all determinations required to be made in connection with the
Redemption Date and the Redemption Price, including, without limitation, the
determination of which successor or related actions or proceedings may
constitute a Lawsuit (as defined herein), shall be within the discretion of the
Board of Directors and any such determination by the Board of Directors shall be
final and conclusive, and actions by the Corporation in respect of this Section
(e) shall be taken at the direction of the Board of Directors. The Board of
Directors may, but need not, appoint such agents, attorneys-in-fact and trustees
as and with such revocable and irrevocable powers as it deems appropriate in its
sole discretion to carry out the redemption provided for herein.
(f) No Reissuance of Series 3 Class B common stock. None of the shares
of Series 3 Class B common stock acquired by the Corporation by reason of
redemption, purchase, or otherwise shall be reissued.
(g) Business Day. If any payment or redemption shall be required by the
terms hereof to be made on a day that is not a Business Day, such payment or
redemption shall be made on the immediately succeeding Business Day. For the
purposes of this Resolution, Business Day shall mean any day other than a
Saturday, Sunday, national or relevant state holiday or any other day on which
commercial banks in New York City are authorized or required by law to be
closed.
(h) Share Certificates. Share certificates shall be issued to represent
the Series 3 Class B common stock which will specify the number of shares
represented by such certificate and the name of the beneficial owner of such
shares. Shares of Series 3 Class B common stock may be transferred only on the
books of the Corporation in person or by duly authorized attorney upon surrender
of said certificate properly endorsed and specifying the new beneficial owner.
(i) Legend. The Series 3 Class B common stock will bear a legend to the
following effect:
THE MANDATORY REDEMPTION PROVISIONS, DIVIDEND RIGHTS, VOTING POWERS,
PREFERENCES, LIMITATIONS, RESTRICTIONS AND OTHER RIGHTS OF THE SERIES 3 CLASS B
COMMON STOCK OF THE CORPORATION ARE SET FORTH IN FULL IN THE CERTIFICATE OF
DESIGNATION OF THE SERIES 3 CLASS B COMMON STOCK OF THE CORPORATION, WHICH IS ON
FILE WITH THE SECRETARY OF STATE OF THE STATE OF NEVADA AND AVAILABLE FREE OF
CHARGE FROM THE SECRETARY OF THE CORPORATION UPON THE REQUEST OF ANY STOCKHOLDER
OF THE CORPORATION.
The foregoing resolution has been duly adopted by the Board of
Directors in accordance with the provisions of Section 78.195 of the Revised
Statutes of the State of Nevada and the Article FOURTH of the Corporation's
Articles.
IN WITNESS WHEREOF, I have signed this Certificate of Designation as of
this 20th day of June, 2003.
/s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
President and Chief Executive Officer
