EXHIBIT 10.15
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT made as of this 1st day of February,
2001, by and among XXXXXXXX.XXX INC., a Nevada corporation, having a business
address at 000 Xxxx 00xx Xxxxxx, Xxxxxx X, Xxx Xxxx, Xxx Xxxx 00000 (the
xxxxx"), XXXX II LIMITED PARTNERSHIP, a limited partnership organized under
the laws of Bermuda, having a business address c/o Forum Fund Services,
Washington Mall, 3rd Floor, Church Street, Xxxxxxxx, HM11, Bermuda (the
"Purchaser") and JAGFN BROADBAND LLC, a New York limited liability company,
having a business address at 000 Xxxx 00xx Xxxxxx, Xxxxxx X, Xxx Xxxx, Xxx Xxxx
00000 ("JAGfn").
W I T N E S S E T H:
WHEREAS, the Seller is a member of, and the owner of an 85%
membership interest in, JAGfn, and the Purchaser is desirous of purchasing such
membership interest from the Seller, on the terms and conditions hereinafter set
forth; and
WHEREAS, the Purchaser is in a position to provide future
financing for JAGfn and JAGfn accordingly wishes to facilitate the purchase of
such membership interest by the Purchaser;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the receipt whereof
is hereby mutually acknowledged, it is agreed as follows:
ARTICLE I. SALE AND TRANSFER
SECTION 1.01 Sale and Purchase. The Seller hereby sells and assigns to
the Purchaser and the Purchaser hereby purchases and accepts from the Seller,
Seller's eighty-five percent (85%) membership interest in JAGfn (the "Membership
Interest"), constituting all of the membership interests in JAGfn owned by the
Seller.
SECTION 1.02 Purchase Price. As consideration for the purchase of the
Membership Interest, the Purchaser agrees:
(a) to deliver to the Seller upon execution hereof in
immediately available funds by wire transfer to the bank account of
the Seller designated in writing by the Seller the sum of
US$1,002,146.81;
(b) to deliver to the Seller upon execution hereof a
non-interest bearing promissory note in the form attached hereto as
Exhibit A in the amount of US$500,000
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payable in full on February 22, 2001, secured by the Membership
Interest as provided therein (the "Secured Promissory Note");
(c) that the CALP II Warrant is hereby cancelled and the
Seller is hereby released and discharged from all obligations
thereunder;
(d) that the Seller is hereby discharged from all obligations
under the CALP II Debentures; and
(e) to grant to the Seller an option to purchase a ten (10%)
membership interest in JAGfn (meaning a 10% interest in the
profits, losses and distributions of JAGfn) at a purchase price of
US$5,000,000 exercisable at any time on ten (10) days prior written
notice, all upon the terms and conditions set forth in the Option
Agreement attached hereto as Exhibit B; provided, that if the
Purchaser, either alone or in conjunction with other members of
JAGfn, sells more than a fifty percent (50%) membership interest in
JAGfn to an unrelated party, the Purchaser shall notify the Seller
thereof, and, at the request of the Purchaser or the Seller, the
membership interest in JAGfn covered by the above-described option
shall be included in such sale on a cashless exercise basis so long
as such sale would result in the Seller receiving an amount in
excess of the exercise price or otherwise cancelled.
SECTION 1.03 Indebtedness of JAGfn. In consideration of Section 1.02
above, the Seller hereby agrees to contribute all intercompany Indebtedness owed
to it by JAGfn to the capital of JAGfn.
SECTION 1.04 JAGfn Obligations. In consideration of Section 1.03 above,
JAGfn hereby agrees (a) to assume the obligations of the Seller under the CALP
II Debentures, which shall be amended as set forth in the Assignment,
Assumption, Consent and Amendment Agreement attached hereto as Exhibit C; and
(b) to issue to the Purchaser a five-year warrant to purchase a two percent (2%)
membership interest in JAGfn at an exercise price of US$1,000,000 in the form
attached hereto as Exhibit D.
SECTION 1.05 Termination. The Purchaser and the Seller hereby agree
that effective as of the date hereof (a) the Equity Line of Credit Agreement and
each and every provision thereof shall terminate and thereafter be of no further
force and effect and (b) the related Lock-Up Agreement and each and every
provision thereof shall terminate and thereafter be of no further force and
effect.
ARTICLE II. SELLER REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Purchaser as follows:
SECTION 2.01 Membership Interest. The Seller is the sole owner of the
Membership Interest. The Membership Interest is free and clear of any Liens and
has not been assigned, pledged, transferred or hypothecated, except for the
security interest described herein
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in favor of the Seller. The Membership Interest is the only interest in JAGfn
which is owned by Seller, or in which Seller has a legal and/or beneficial
interest.
SECTION 2.02 Power and Authority. The Seller has the full right, power
and authority to transfer the Membership Interest to Purchaser. This Agreement
and the relevant exhibits hereto have been duly and validly executed and
delivered by the Seller and constitute legal, valid and binding obligations of
the Seller, enforceable in accordance with their respective terms. The General
Corporation Law of the State of Nevada does not require that the shareholders of
the Seller approve the terms and conditions of this Agreement and the
transactions contemplated hereby.
SECTION 2.03 Organization. JAGfn is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
New York and has the full corporate power and authority to own, lease, and
operate the properties used in its Business and to carry on its Business as now
being conducted. JAGfn holds no equity, partnership, joint venture or other
interest in any Person. As of the date hereof, JAGfn has not published a copy of
its articles of organization in the State of New York pursuant to Section 206 of
the New York Limited Liability Company Law. A true and complete copy of the
Operating Agreement including all amendments to date is attached hereto as
Exhibit E.
SECTION 2.04 Capitalization. Schedule 2.04 sets forth the issued and
outstanding membership interests of JAGfn. Other than as set forth on Schedule
2.04, there are no other membership interests of JAGfn issued and outstanding.
Each membership interest is duly and validly authorized and issued in compliance
with all applicable laws, fully paid and nonassessable.
SECTION 2.05 No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will,
conflict with or result in a breach under (i) JAGfn's Articles of Organization
or Operating Agreement, copies of which have been provided to the Purchaser,
(ii) the terms, conditions or provisions of any Contract to which the Seller or
JAGfn is or are a party or by which the Seller or JAGfn or any of their Assets
and Properties is or are bound, or (iii) any order, injunction or decree of any
Governmental or Regulatory Authority.
SECTION 2.06 Assets and Properties. Attached hereto as Attachment I to
Exhibit E is a true and complete copy of the Assignment and Assumption
Agreement, dated as of August 18, 2000, by and between the Seller and JAGfn,
which describes the Assets and Properties contributed by the Seller to JAGfn.
All of the Assets and Properties contributed by the Seller to JAGfn are in good
operating condition and repair and adequate and suitable to operate the Business
as presently conducted by JAGfn.
SECTION 2.07 Approvals. No consent, approval or action of, filing with
or notice to any Governmental or Regulatory Authority or any other third party
on the part of JAGfn or the Seller is required in connection with the execution,
delivery and performance of this Agreement
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or the consummation of transactions contemplated hereby. In furtherance and not
in limitation of the foregoing, neither the Seller nor JAGfn has violated any
Federal or state securities law in connection with the offer, sale or purchase
of the Membership Interest.
SECTION 2.08 Employees. Schedule 2.08 sets forth a complete and
accurate list of all officers, employees, consultants and commentators of JAGfn.
There are (i) no material controversies between JAGfn, on the one hand, and any
employee of JAGfn, on the other hand, (ii) no employee of JAGfn is presently a
member of a collective bargaining unit or party to a collective bargaining
agreement or similar labor Contract relating to such employee's employment with
JAGfn and, there are no threatened or contemplated attempts to organize for
collective bargaining purposes any of the employees of JAGfn and (iii) no unfair
labor practice complaint or sex or age discrimination claim is pending against
JAGfn before the National Labor Relations Board or any other Governmental or
Regulatory Authority and there are no facts or circumstances that could
reasonably be expected to give rise to such complaint or claim. There has been
no work stoppage, strike or other concerted action by employees of JAGfn.
SECTION 2.09 Full Disclosure. No representation, warranty or covenant
made to the Purchaser in this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
SECTION 2.10 Brokers. Neither the Seller nor JAGfn, nor any
representatives of such, have retained, consented to or authorized any broker,
investment banker or other third party to act on their behalf, directly or
indirectly, as a broker, adviser or finder in connection with the transactions
contemplated by this Agreement.
SECTION 2.11 Litigation. Except as otherwise specifically identified
and disclosed in Schedule 2.11, there is no litigation, claim, action, suit,
administrative, arbitration or other proceeding pending or threatened against
JAGfn or against the Seller with respect to JAGfn or its Assets and Properties.
SECTION 2.12 Contracts. Schedule 2.12 sets forth a true and complete
list of all material Contracts to which JAGfn is a party.
SECTION 2.13 Securities Laws. By virtue of the representations and
warranties of Purchaser set forth in Sections 3.05 and 3.06 below, the offer and
sale of the Membership Interest made pursuant to this Agreement is exempt from
the registration requirements of the Securities Act.
SECTION 2.14 Good and Marketable Title. JAGfn is in possession of and
has good and marketable title to, or has valid leasehold interests in, or valid
rights under Contract to use, all material Assets and Properties owned or used
in the Business, subject to no Liens, except for the lease of servers from
Woodbourne Solutions, Inc.; and except for such servers, all such
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material Assets and Properties constitute all of the Assets and Properties
necessary for the conduct of the Business as currently conducted.
SECTION 2.15 No Undisclosed Liabilities. Other than such liabilities as
are set forth in Schedule 2.15, there are no material liabilities of, relating
to or affecting JAGfn or any of the Assets and Properties, other than those
incurred in the ordinary course of the Business consistent with past practice,
which in the aggregate through December 31, 2000 do not exceed US$100,000.
SECTION 2.16 Solvency. On the date hereof, immediately after giving
effect to the transactions contemplated hereby and valuing the Secured
Promissory Note at its face value, the Seller will be Solvent.
SECTION 2.17 Books and Records. The Books and Records of JAGfn have
been made available to the Purchaser prior to the execution of this Agreement,
are complete and correct in all material respects and have been maintained in
accordance with sound business practices. The minute book of JAGfn contains a
true and complete record in all material respects of all actions taken at all
meetings and by all written consents in lieu of meetings of members and managers
of JAGfn.
ARTICLE III. PURCHASER REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Seller as follows:
SECTION 3.01 Organization. The Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of Bermuda.
SECTION 3.02 Authority. The Purchaser has the power and authority to
execute and deliver this Agreement and the relevant exhibits hereto and to
perform its obligations thereunder and has duly executed and delivered this
Agreement and the relevant exhibits hereto, and they constitute legal, valid and
binding obligations of the Purchaser.
SECTION 3.03 No Conflicts. Neither execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
conflict with or result in a breach under (i) the Articles of Incorporation and
By-Laws of the Purchaser, (ii) the terms, conditions or provisions of any
Contract to which the Purchaser is a party or by which the Purchaser or any of
its respective properties is or are bound, or (iii) any order, injunction or
decree of any Governmental or Regulatory Authority to which the Purchaser is
bound or subject.
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SECTION 3.04 Brokers. Except for Thomson Kernagahn & Co., Ltd., neither
the Purchaser nor anyrepresentatives of the Purchaser have retained, consented
to or authorized any broker, investment banker or third party to act on their
behalf, directly or indirectly, as a broker or finder in connection with the
transactions contemplated by this Agreement.
SECTION 3.05 Investment Intent. The Purchaser is not acquiring the
Membership Interest with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act.
SECTION 3.06 Accredited Investor. The Purchaser is an "accredited
investor" (as such term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act).
ARTICLE IV. COVENANTS
SECTION 4.01 Security Interest. The Purchaser hereby grants a security
interest in the Membership Interest (other than the amount of the Membership
Interest transferred to Xxxx Xxxxxxxx pursuant to Section 4.02(a)(i) below), and
any stock or similar ownership interest into which such Membership Interest may
be converted, to the Seller as security for the Purchaser's full and timely
performance of its obligations under the Secured Promissory Note. The Purchaser
hereby agrees that so long as the Secured Promissory Note remains outstanding,
the Purchaser shall not effect a restructuring or reorganization of JAGfn
without the prior written consent of the Seller, which consent shall not be
unreasonably withheld.
SECTION 4.02 Operating Agreement. (a) The Purchaser hereby agrees that,
promptly upon the closing of its purchase of the Membership Interest, the
Purchaser shall (i) transfer a portion of the Membership Interest, representing
a two and one-half percent (2.5%) membership interest in JAGfn, to Xxxx
Xxxxxxxx; (ii) transfer a portion of the Membership Interest, representing up to
a 6.00% membership interest in JAGfn, to Ashton Technology Group Inc., a
Delaware corporation ("Ashton") and (iii) enter into and be bound by the
provisions of, the Operating Agreement in the form attached hereto as Exhibit E,
amended to reflect the Purchaser's membership interest resulting from the
transactions reflected herein and the above-described transfers to Xxxx Xxxxxxxx
and Ashton.
(b) JAGfn hereby agrees that the "5% ownership interest" in
JAGfn referred to in Section 7(a) of the Xxxxxxxx Employment
Agreement shall be amended to be a "7.5% ownership interest."
(c) JAGfn hereby agrees that the Management Employment
Agreements shall be amended as follows: (i) a period shall be
inserted in the first sentence of Section 7(a) following the defined
term "Website Subsidiary" and the remainder of such sentence shall
be deleted; and (ii) the second sentence of Section 7(a) of shall be
deleted in its entirety.
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(d) The other members of JAGfn have separately provided their
written consent to the Purchaser and Ashton becoming members of
JAGfn, the foregoing amendments, the option granted in Section
1.02(e) hereof and the Seller becoming a member of JAGfn upon the
exercise thereof, and have agreed that Purchaser may make all tax
elections for JAGfn.
SECTION 4.03 Indemnity. (a) For the period commencing on the date
hereof and ending on the date on which the applicable statute of limitations
relating to any claim for any Indemnifiable Losses shall expire, the Purchaser
hereby agrees to indemnify, defend and hold the Seller and each of its current
and future officers and directors harmless from and against any claim for an
Indemnifiable Loss made by any Person after the date hereof arising from or
related to (i) the consummation of the transactions contemplated hereby or (ii)
the breach or alleged breach of any representation, warranty, covenant or other
agreement made by the Purchaser hereunder.
(b) Promptly after receipt by the Seller and/or any of its
officers and directors (for purposes of this Section 4.03(b), the "Indemnitees")
of notice of any demand, claim or circumstance that, with or without the lapse
of time, the Indemnitees have reason to believe may result in any Indemnifiable
Losses, the Indemnitees shall give notice thereof to the Purchaser (for purposes
of this Section 4.03(b), the "Indemnitor"), which notice shall describe such
demand, claim or circumstance in reasonable detail and shall indicate the amount
(estimated, if necessary) of the Indemnifiable Losses that have been or may be
suffered by the Indemnitees. The Indemnitor shall compromise or defend, by its
own counsel, any such demand, claim or circumstance and shall pay all fees and
expenses related thereto. The Indemnitees shall cooperate in the compromise of,
or defense against, such demand, claim or circumstance and shall make available
to the Indemnitor and its counsel any books, records or other documents within
its control that are reasonably necessary or appropriate for such compromise or
defense.
SECTION 4.04 Services Agreement. The Seller and JAGfn shall enter into
a services agreement in the form attached hereto as Exhibit F, pursuant to which
they shall provide services to each other for the consideration set forth
therein.
SECTION 4.05 Return of Documentation. The Purchaser shall promptly
return to the Seller the original CALP II Warrant to confirm its cancellation
and that it is of no further force and effect. The Seller shall assign all of
its rights and obligations under the CALP II Debentures to JAGfn which shall
assume such obligations, and the Purchaser shall consent to such assignment and
the release of the Seller from all obligations thereunder, all upon the terms
and conditions set forth in the Assignment, Assumption, Consent and Amendment
Agreement attached hereto as Exhibit C.
SECTION 4.06 Full Access. The Seller agrees to provide the Purchaser
and its authorized representatives unrestricted and full access, during regular
business hours, to any and all of JAGfn's premises, properties, files, books,
records, contracts, documents, insurance
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records, employee records, corporate minute book and related records, data, tax
returns, financial statements, receivables information, and all other
information concerning JAGfn or otherwise pertaining to the Business (including
customers and suppliers), and the Purchaser and its authorized representatives
shall be entitled to make complete copies of any of the foregoing. The Purchaser
agrees to keep confidential all such information which has been disclosed to or
discovered by it hereunder except as required by law or court order.
SECTION 4.07 Webcast Syndication Obligation. The Purchaser shall cause
JAGfn to grant the Seller a royalty-free, non-exclusive, worldwide license (with
no right to sublicense or redistribute) to carry and display the JAGfn webcast.
SECTION 4.08 Use of Proceeds. The Seller shall utilize the proceeds
received pursuant to Sections 1.02(a) and 1.02(b) hereof to satisfy the Seller's
unpaid obligations set forth on Schedule 2.15 hereof and to finance the Seller's
ordinary working capital and general corporate needs. The Seller hereby agrees
to indemnify, defend and hold the Purchaser harmless from and against any claim
for damages, liabilities, fines, fees or penalties made by any Person after the
date hereof arising from or related to the Seller's failure to satisfy the
obligations set forth on Schedule 2.15; provided, however, that the Seller shall
not be liable to the Purchaser to the extent that any such damages, liabilities,
fines, fees or penalties arise as a result of Purchaser's failure to make timely
payment to the Seller of the principal amount due under the Secured Promissory
Note.
ARTICLE V. MISCELLANEOUS
SECTION 5.01 Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be reasonably necessary or appropriate to effectuate,
carry out and comply with all of their obligations under this Agreement.
SECTION 5.02 Survival of Representations, Warranties and Covenants. The
representations and warranties of the Seller and the Purchaser contained herein
shall survive the closing of this transaction for a period of eighteen (18)
months, unless a claim therefor has been made in writing prior to the end of
such 18-month period. If any claim is made by the Seller or the Purchaser based
on a breach by the other party of its representations and warranties set forth
herein, such claim including a specific statement of the nature of the claim
must be made in writing within eighteen (18) months from the date hereof. The
covenants contained in this Agreement shall survive the closing of this
transaction indefinitely.
SECTION 5.03 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made if and when delivered personally or by overnight courier service
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
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(a) if to the Seller, to:
XxxXxxxx.xxx Inc.
000 Xxxx 00xx Xxxxxx, Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: W. Xxxxxxx Xxxxxxxxx, Xx., Esq.
(b) if to the Purchaser, to:
CALP II Limited Partnership
c/o Forum Fund Services
Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxx, XX00, XXXXXXX
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxxxxxxx
With copies to:
Xxxxx, Xxxxx and Xxxxx
000 Xxxxxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxx, Esq.
and
Thomson Kernaghan & Co., Ltd.
000 Xxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X0X0 Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxx Xxxxxxxx
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SECTION 5.04 Expenses. Each party shall be responsible for paying its
own fees and expenses incurred in connection with the transactions contemplated
hereby, it being understood that an estimate of Seller's expenses is included in
the amount set forth in Sections 1.02(a) and 1.02(b) hereof. Purchaser shall be
responsible for payment of the advisory fee of Thomson Kernaghan & Co., Ltd.
SECTION 5.05 Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing, signed by each of the parties hereto.
SECTION 5.06 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective successors, heirs, executors, representatives and assigns.
Except with the prior written consent of the other parties hereto or as
otherwise provided herein, no party may assign any of its rights or obligations
hereunder.
SECTION 5.07 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof and except as otherwise expressly provided herein. There are no
representations, warranties or covenants by the parties hereto relating to such
subject matter other than those expressly set forth in this Agreement.
SECTION 5.08 Severability. If any term or other provisions of this
Agreement is invalid, illegal or incapable or being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect.
SECTION 5.09 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
SECTION 5.10 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 5.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to any principles of conflicts of law that might indicate the applicability of
the laws of any other jurisdiction.
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SECTION 5.12 Name; Headings. The name assigned to this Agreement and
the headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
SECTION 5.13 Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Each counterpart may
consist of a number of copies each signed by less than all, but together signed
by all, the parties hereto.
SECTION 5.14 Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Agreement" has the meaning ascribed to it in the preamble.
"Ashton" has the meaning ascribed to it in Section 4.01 (a) of
this Agreement.
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether
real, personal or mixed, whether tangible or intangible, whether
absolute, accrue, contingent, fixed or otherwise and wherever
situated), including the goodwill related thereto, operated, owned or
leased by such Person, including without limitation cash, cash
equivalents, investment assets, accounts and notes receivable, chattel
paper, documents, instruments, general intangibles, real estate,
equipment, inventory, goods and Intellectual Property.
"Books and Records" means all files, documents, instruments,
papers, books and records relating to the Business, including, without
limitation, minute books, organizational documents, syndication orders
and all Contracts to which JAGfn is a party.
"Business" means the webcasting business as presently
conducted by JAGfn.
"CALP II Debentures" means (i) that certain $2,500,000 8%
Convertible Debenture Due June 12, 2003 (No. 0001), convertible into
shares of common stock of the Seller, issued to the Purchaser on June
12, 2000; (ii) that certain $500,000 8% Convertible Debenture Due
October 20, 2003 (No. A-0001) convertible into shares of common stock
of the Seller, issued to the Purchaser on October 20, 2000; (iii) that
certain $500,000 8% Convertible Debenture Due November 3, 2003 (No.
A-0002), convertible into shares of common stock of the Seller, issued
to the Purchaser on November 3, 2000; (iv) that certain $500,000 8%
Convertible Debenture Due November 10, 2003 (No. A-0003), convertible
into shares of common stock of the Seller, issued to the Purchaser on
November 10, 2000; (v) that certain $500,000 8% Convertible Debenture
Due November 17, 2003 (No. A-0004), convertible into shares of common
stock of the Seller, issued to the Purchaser on November 17, 2000; (vi)
that certain $500,000 8% Convertible Debenture Due November 24, 2003
(No. A-0005), convertible into shares of common stock of the Seller,
issued to the Purchaser on November 24, 2000; (vii) that certain
$200,000 8% Convertible Debenture Due January 11, 2004 (No. B-0001),
convertible into shares of common stock of the Seller, issued to the
Purchaser on January 11, 2001; and (viii) that certain $200,000 8%
Convertible Debenture Due January 25,
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2004 (No. B-0002), convertible into shares of common stock of the
Seller, issued to the Purchaser on January 25, 2001.
"CALP II Warrant" means that certain five-year stock purchase
warrant to acquire 3,000,000 shares of common stock of the Seller,
exercisable at a price of $1.25 per share, issued to the Purchaser on
October 30, 2000.
"Contract" means any agreement, obligation, undertaking,
lease, evidence of Indebtedness, mortgage, indenture, security
agreement or other contract, including, without limitation, any
employee, consultant or commentator contract.
"Equity Line of Credit Agreement" means that certain Equity
Line of Credit Agreement, dated as of June 14, 2000, as amended on July
19, 2000 and October 31, 2000, by and between the Seller and the
Purchaser.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency (including, without limitation,
the federal and state food and drug administration and the federal and
state healthcare financing administration) commission, official or
other instrumentality of the United States, any foreign country or any
domestic or foreign state, county, city or other political subdivision,
and shall include, without limitation, any stock exchange, quotation
service and the National Association of Securities Dealers.
"Indebtedness" of any Person means all obligations of such
Person (i) for borrowed money, (ii) evidenced by notes, bonds,
debentures or similar instruments or maintained as an open account,
(iii) for the deferred purchase price of goods or services (other than
trade payables or accruals incurred in the ordinary course of
business), (iv) under capital leases and (v) in the nature of
guarantees of the obligations described in clauses (i) through (iv)
above of any other Person.
"Indemnifiable Losses" means any damages, liabilities, fines,
fees, penalties, deficiencies, diminution in value of investment,
losses and expenses, including without limitation, interest, reasonable
expenses of investigation, court costs, reasonable fees and expenses of
attorneys, accountants and other experts or other expenses of
litigation or other proceedings.
"Indemnitees" has the meaning ascribed to it in Section
4.03(b) of this Agreement.
"Indemnitor" has the meaning ascribed to it in Section 4.03(b)
of this Agreement.
"Intellectual Property" means all trademarks and trademark
rights, trade names and trade name rights, service marks and service
xxxx rights, service names and service name rights, copyrights and
copyright rights, patents and patent rights, brand names, product
designs, product packaging, business and product names, logos, slogans,
rights of publicity, trade secrets, inventions, processes, formulae,
industrial models, processes, designs, specifications, data,
technology, methodologies, computer programs and any other confidential
and proprietary right or information, whether or not subject to
statutory registration, and all related technical information,
manufacturing, engineering and technical drawings, know-how and all
pending applications for and registrations of patents, trademarks,
service marks and copyrights, and the
12
right to xxx for past infringement, if any, in connection with any of
the foregoing, and all documents, disks and other media on which any
of the foregoing is stored.
"JAGfn" has the meaning ascribed to it in the recitals of this
Agreement.
"Liens" means claims, pledges, security interests, mortgage,
conditional sales agreement, liens, charges, restrictions or
encumbrances of any nature whatsoever.
"Lock-Up Agreement" means that certain Lock-Up Agreement,
dated June 14, 2000, between Xxxx Xxxxxxxx and the Purchaser.
"Management Employment Agreements" means (i) that certain
Employment Agreement, dated as of December 14, 2000, by and among the
Seller, JAGfn and Xxxxxx X. Xxxxxxxxx, (ii) that certain Employment
Agreement, dated as of December 14, 2000, by and among the Seller,
JAGfn and Xxxxxxx X. Xxxxxxxxx and (iii) the Xxxxxxxx Employment
Agreement.
"Membership Interest" has the meaning ascribed to it in
Section 1.01 of this Agreement.
"Operating Agreement" means the Amended and Restated
Operating Agreement of JAGfn.
"Person" means any natural person, corporation, general or
limited partnership, limited liability company or partnership,
proprietorship, other business organization, estate, trust, union,
association or Governmental or Regulatory Authority.
"Purchaser" has the meaning ascribed to it in the preamble of
this Agreement.
"Secured Promissory Note" has the meaning ascribed to it in
Section 1.02(b) of this Agreement.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Seller" has the meaning ascribed to it in the preamble of
this Agreement.
"Solvent" means, with respect to any Person, (i) that the
present fair salable value of such Person's Assets and Properties is
not less than the amount that will be required to pay such Person's
probable liability on existing debts as they become absolute and
matured as provided in Section 271 of the New York Debtor and Creditor
Law, and (ii) a financial condition such that the sum of such Person's
debts is not greater than all of such Person's property and otherwise
as provided in Section 101 of Title 11 of the U.S. Bankruptcy Code.
"Xxxxxxxx Employment Agreement" means that certain Employment
Agreement, dated as of December 14, 2000, by and among the Seller,
JAGfn and Xxxx Xxxxxxxx.
13
IN WITNESS WHEREOF, a duly authorized representative of each
of the parties below has duly executed this Agreement as of the date first above
written.
XXXXXXXX.XXX INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: President & CEO
CALP II LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Pres. General Partner
JAGfn BROADBAND LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Manager
14
INDEX TO EXHIBITS AND DISCLOSURE SCHEDULES
Exhibit A: Secured Promissory Note issued February 1, 2001 in the
amount of U.S.$500,000 by CALP II Limited Partnership payable to the order of
the Company.
Exhibit B: Option Agreement, dated February 1, 2001, between the CALP
II Limited Partnership and the Company.
Exhibit C: Assignment, Assumption, Consent and Amendment Agreement,
dated as of February 1, 2001, by and among the Company, JAGfn Broadband LLC and
CALP II Limited Partnership.
Exhibit D: Warrant No. A-1, dated February 1, 2001, issued by JAGfn
Broadband LLC to CALP II Limited Partnership.
Exhibit E: Amended and Restated Operating Agreement of JAGfn Broadband
LLC dated as of January 2, 2001.
Exhibit F: Services Agreement, dated as of February 1, 2001, by and
between the Company and JAGfn Broadband LLC.
Schedule 2.04: Capitalization
Schedule 2.08: Employees
Schedule 2.11: Litigation
Schedule 2.12: Contracts
Schedule 2.15: No Undisclosed Liabilities
15
EXHIBIT A
SECURED PROMISSORY NOTE
$500,000 February 1, 2001
FOR VALUE RECEIVED, the undersigned, CALP II LIMITED
PARTNERSHIP, a limited partnership organized under the laws of Bermuda (the
"Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to the order of XXXXXXXX.XXX
INC., a Nevada corporation ("Lender"), the aggregate principal amount of
U.S.$500,000 (the "Principal Amount"), as provided in this SECURED PROMISSORY
NOTE (this "Note"), on the following terms and conditions:
1. Maturity Date. The Principal Amount of this Note shall be due and
payable in full on February 22, 2001.
2. Interest. This Note shall not bear interest.
3. Acceleration. Notwithstanding Section 1 above, the entire unpaid
Principal Amount of this Note shall be immediately due and payable
upon the occurrence of any of the following:
a. Borrower shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with
respect to itself or its debts under any Bankruptcy Law (as
defined below) or seeking the appointment of a Custodian (as
defined below) of any substantial part of his property, or
shall consent to any such relief or to the appointment of or
taking possession by any Custodian in an involuntary case or
other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall
take any corporate action to authorize any of the foregoing;
or
b. a court of competent jurisdiction shall enter a decree or
order providing for relief in respect of Borrower in an
involuntary case under any Bankruptcy Law or appointing a
Custodian of Borrower or for any substantial part of its
property, or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in
effect for a period of 30 consecutive days. As used herein,
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal, state or foreign law for the relief of
debtors, and "Custodian" means any receiver, trustee,
assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
4. Payment. Payments under this Note shall be made in immediately
available federal funds in United States dollars. All such payments
under this Note shall be made prior to 12:00 P.M. (New York City
time) by wire transfer to a bank account designated by Lender prior
to such transfer. The Borrower may prepay in
whole or in part the outstanding amount of the Principal Amount at
any time and without premium or penalty.
5. Security. As collateral security for the prompt payment in full when
due of the obligations of the Borrower hereunder, the Borrower
hereby grants to Lender for its benefit a first priority security
interest to the extent permitted by law, without regard to the date
of recordation of any filing of any security interest with the
applicable governmental authorities, in all of the Borrower's right,
title and interest in and to its membership interest in JAGfn
Broadband LLC, a New York limited liability company, and any stock
or similar ownership interest into which the membership interest may
be converted. All proceeds from the sale or other disposition of any
such security shall first be distributed to the Lender in payment of
the principal hereof and all costs of collection. The Borrower shall
execute and deliver to Lender such financing statements, debentures
and other documents or instruments as Lender may request from time
to time to perfect the liens and security interests granted hereby,
including, without limitation, filings under the Uniform Commercial
Code and under the laws of Bermuda.
6. Liability. The liability of the Borrower under this Note shall be
irrevocable, absolute and unconditional irrespective of, and without
setoff, counterclaim, recoupment, deduction or reduction for or on
account of (and for purposes of making payment hereunder, the
Borrower hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to), all and any circumstances,
including, without limitation, the following circumstances: (i) any
transfer, assignment or other disposition by Lender in whole or in
part of its rights, remedies, title and interest under this Note;
(ii) any lack or failure of presentment, demand, protest, notice of
dishonor, notice of protest and other notices of any kind in
connection with this Note; and (iii) any claim by Borrower against
Lender in contract or tort, in law or equity.
7. Waiver. Failure of Lender to insist upon strict performance of the
terms, conditions and provisions of this Note shall not be deemed a
waiver of future compliance therewith or a waiver of such terms,
conditions or provisions. No waiver of any terms, conditions or
provisions hereof shall be deemed to have been made unless expressed
in writing and signed by Lender. The terms of this Note shall not be
amended, supplemented or modified in any manner without the prior
written consent of Lender and the Borrower.
8. Choice of Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts made and to be performed wholly within that state without
regard to any conflicts of law provisions that might indicate the
applicability of the laws of any other state. The Borrower hereby
submits to the jurisdiction of the New York state courts and the
Federal courts of the United States located in the State of New York
in any action arising out of or under this Note. THE BORROWER
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE
OR
THE ACTIONS OF LENDER OR THE BORROWER IN THE NEGOTIATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Note has been duly executed and delivered by a
duly authorized officer of the Borrower on the date first above written.
CALP II LIMITED PARTNERSHIP
By:
---------------------------------------
Name:
Title:
EXHIBIT B
OPTION AGREEMENT
February 1, 2001
XxxXxxxx.xxx Inc.
000 Xxxx 00xx Xxxxxx, Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx
RE: OPTION GRANT
Dear Xx. Xxxxxxxx:
As partial consideration for the sale by XxxXxxxx.xxx Inc., a
Nevada corporation (the "Seller"), to CALP II Limited Partnership, a limited
partnership organized under the laws of Bermuda (the "Purchaser"), of the
Seller's 85% membership interest in JAGfn Broadband LLC ("JAGfn") and subject to
the terms and conditions hereof, the Purchaser is offering the Seller by means
of this Option Agreement (this "Agreement") an option to purchase a ten percent
(10%) membership interest in JAGfn, consisting of a 10% interest in the profits,
losses and distributions of JAGfn as well as the other rights of a member ("Ten
Percent Interest"). Terms not otherwise defined herein shall have the meanings
ascribed thereto in the Securities Purchase Agreement, dated the date hereof, by
and among the Seller, the Purchaser and JAGfn. This offer is subject to the
following terms and conditions:
1. Grant of Option. Subject to the terms and conditions
hereof, the Purchaser hereby grants to the Seller an option to purchase the Ten
Percent Interest (the "Option").
2. Exercise Price. The price (the "Exercise Price") at which
the Ten Percent Interest may be acquired upon the exercise of the Option shall
be FIVE MILLION U.S. DOLLARS (US$5,000,000) to be paid by the Seller to the
Purchaser in cash.
3. Vesting/Exercise Period. The Option shall be fully vested
on the date of grant and may be exercised by the Seller upon ten (10) days'
prior written notice to the Purchaser. If the tenth day following receipt of
notice by the Purchaser is not a business day in New York City, then the Option
shall be exercised on the next following day which is a business day in New York
City. The Option shall expire at the close of business on January 31, 2002.
4. Transferability. The Option may not be transferred or
assigned by the Seller without the prior written consent of the Purchaser except
in connection with a merger or sale of substantially all the assets of the
Seller.
5. Manner of Exercise. The Seller must exercise the Option in
whole (not in part) by giving the Manager of JAGfn written notice by personal
hand delivery or by registered or certified mail, postage prepaid, at the
following address of the Seller's intent to exercise the Option: JAGfn Broadband
LLC, 000 Xxxx 00xx Xxxxxx, Xxxxxx X, Xxx Xxxx, Xxx Xxxx 00000.
6. Payment of Exercise Price. If the Seller exercises the
Option, the Seller must pay the purchase price in U.S. dollars (by check or wire
transfer). In no event will the Ten Percent Interest be transferred to the
Seller on the exercise of the Option until JAGfn has received the full payment
pursuant to Section 2 above.
7. Admission as Member. The Purchaser shall cause the
members of JAGfn, upon payment of the Exercise Price, to admit the Seller as a
member of JAGfn and provide appropriate evidence to the Seller evidencing the
Ten Percent Interest. In connection with its admission as a member of JAGfn, the
Seller shall become a party to, and agree to be bound by and subject to the
provisions of, the Operating Agreement of JAGfn, as amended to date.
8. Rights of Inclusion. If, during the term of the Option,
the Purchaser or JAGfn proposes to effect a Sale (as defined below), the
Purchaser shall provide a written notice of the proposed Sale and its terms to
the Seller. So long as the Sale would result in the Seller receiving an amount
in excess of the Exercise Price, the Seller may elect to exercise the Option,
and the Purchaser may require the Seller to exercise the Option, at the closing
of the Sale, in each case on a cashless basis. If the Sale would result in the
Seller receiving an amount less than the Exercise Price, the Option shall be
cancelled.
9. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Seller and the Purchaser, and each of their
respective heirs, legal representatives, successors and assigns.
10. Amendments and Waivers. This Agreement may not be modified
or amended except by an instrument in writing signed by the Purchaser and the
Seller. The Purchaser and the Seller may, by an instrument in writing, waive
compliance by the other party with any term or provision of this Agreement on
the part of such other party hereto to be performed or complied with. The waiver
by any such party of a breach of any term or provision of this Agreement shall
not be construed as a waiver of any subsequent breach.
11. Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not be
deemed to be a part of this Agreement or to affect the meaning or interpretation
of this Agreement.
2
12. Further Assurances. The Purchaser and the Seller shall do
and perform all such further acts and things and execute and deliver all such
other certificates, instruments and/or documents (including without limitation,
such proxies and/or powers of attorney as may be necessary or appropriate) as
either party hereto may, at any time and from time to time, reasonably request
in connection with the performance of any of the provisions of this Agreement.
14. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other
Person that controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "controls" (including, with its
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of securities, by
contract or otherwise.
"Person" means an individual, partnership, corporation,
limited liability company, trust, unincorporated organization, joint venture,
government (or agency or political subdivision thereof) or any other entity of
any kind.
"Sale" means the sale of JAGfn (whether by merger,
consolidation, recapitalization, reorganization, sale of securities, sale of
assets or otherwise) in one transaction or series of related transactions to a
Person or group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of Persons (other than any Affiliate of the
Purchaser) pursuant to which such Person or group of Persons (together with its
Affiliates) acquires (i) securities representing at least a majority of the
membership interests of JAGfn, assuming the conversion, exchange or exercise of
all securities convertible, exchangeable or exercisable for or into voting
securities, or (ii) all or substantially all of JAGfn's assets on a consolidated
basis.
15. Certain Restrictions. THE SECURITIES REPRESENTED BY THIS
OPTION GRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER OR
UNDER APPLICABLE STATE SECURITIES LAWS.
3
If you are in agreement with the foregoing, kindly indicate the same by signing
a copy of this Agreement and returning it to the undersigned.
Very truly yours,
CALP II LIMITED PARTNERSHIP
By:__________________________
Name:
Title:
ACCEPTED AND AGREED TO:
XXXXXXXX.XXX INC.
By:__________________________
Name:
Title:
4
EXHIBIT C
ASSIGNMENT, ASSUMPTION, CONSENT AND AMENDMENT AGREEMENT
ASSIGNMENT, ASSUMPTION, CONSENT AND AMENDMENT AGREEMENT, made
as of this 1st day of February, 2001 (the "Agreement"), by and among
XXXXXXXX.XXX INC., a Nevada corporation, having a business address at 000 Xxxx
00xx Xxxxxx, Xxxxxx X, Xxx Xxxx, Xxx Xxxx 00000 (the "Seller"), CALP II LIMITED
PARTNERSHIP, a limited partnership organized under the laws of Bermuda, having a
business address c/o Forum Fund Services, Washington Mall, 3rd Floor, Church
Street, Xxxxxxxx, HM11, Bermuda (the "Purchaser") and JAGFN BROADBAND LLC, a New
York limited liability company, having a business address at 000 Xxxx 00xx
Xxxxxx, Xxxxxx X, Xxx Xxxx, Xxx Xxxx 00000 ("JAGfn").
WHEREAS, the Seller has issued the following convertible
debentures to the Purchaser: (i) that certain $2,500,000 8% Convertible
Debenture Due June 12, 2003 (No. 0001), convertible into shares of common stock
of the Seller, issued to the Purchaser on June 12, 2000; (ii) that certain
$500,000 8% Convertible Debenture Due October 20, 2000 convertible into shares
of common stock of the Seller, issued to the Purchaser on October 20, 2000 (No.
A-0001); (iii) that certain $500,000 8% Convertible Debenture Due November 3,
2003 (No. A-0002), convertible into shares of common stock of the Seller, issued
to the Purchaser on November 3, 2000; (iv) that certain $500,000 8% Convertible
Debenture Due November 10, 2003 (No. A-0003), convertible into shares of common
stock of the Seller, issued to the Purchaser on November 10, 2000; (v) that
certain $500,000 8% Convertible Debenture Due November 17, 2003 (No. A-0004),
convertible into shares of common stock of the Seller, issued to the Purchaser
on November 17, 2000;(vi) that certain $500,000 8% Convertible Debenture Due
November 24, 2003 (No. A-0005), convertible into shares of common stock of the
Seller, issued to the Purchaser on November 24, 2000; (vii) that certain
$200,000 8% Convertible Debenture Due January 11, 2004 (No. B-0001), convertible
into shares of common stock of the Seller, issued to the Purchaser on January
11, 2001; and (viii) that certain $200,000 8% Convertible Debenture Due January
25, 2004 (No. B-0002), convertible into shares of common stock of the Seller,
issued to the Purchaser on January 25, 2001 (collectively referred to herein as
the "CALP II Debentures"); and
WHEREAS, the Seller wishes to be relieved of all obligations
under the CALP II Debentures which JAGfn is willing to assume and the Purchaser
agrees to consent thereto, and both JAGfn and the Purchaser agree that an
amendment thereto is required.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assignment of Rights to the Debentures. The Seller hereby
sells, assigns, transfers, conveys, grants, bargains, sets over, releases,
delivers and confirms unto JAGfn, its successors and its assigns, forever,
Seller's entire right, title and interest in, to and under the CALP II
Debentures, to have and to hold forever (the "Assignment").
2. Assumption of Obligations Under the Debentures. JAGfn
hereby assumes and agrees to pay, perform and discharge forever all obligations
of the Seller under the CALP II Debentures (the "Assumption"). ----------
3. Consent of Purchaser. The Purchaser hereby consents to the
Assignment and Assumption, and hereby releases and discharges the Seller from
all its obligations under the CALP II Debentures.
4. Amendment of Debentures. (a) Each of the CALP II Debentures
shall be amended to change all references to "XxxXxxxx.xxx Inc." to "JAGfn
Broadband LLC."
(b) Section 1.02 (Conversion), Section 1.03 (Reservation of
Common Stock), 1.07 (Registration Rights), Subsection 3.01(e), Section 3.02
(Failure to Issue Unrestricted Common Stock), Section 4.01 (Rights and Terms of
Conversion), Section 4.02 (Mandatory Conversion), Section 4.03 (Reissuance of
Debenture), Section 4.04 (Termination of Conversion Rights), Section 4.05
(Limitation on Right and Power to Exercise) and Article V (Antidilution) of each
of the CALP II Debentures shall be deleted in their entirety. Any and all other
references to conversion in the CALP II Debentures shall also, mutatis mutandis,
be deleted.
(c) All other provisions of the CALP II Debentures shall
remain in full force and effect without change.
5. Due Authorization. Each of the Seller, the Purchaser and
JAGfn has all requisite power and authority to enter into, execute and deliver
this Agreement and to perform its obligations hereunder and each hereby
represents that this Agreement constitutes a valid and binding obligation of the
Seller, the Purchaser and JAGfn enforceable in accordance with its terms, except
as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
6. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made if and when delivered personally or by overnight courier service
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
2
(a) if to the Seller, to:
XxxXxxxx.xxx Inc.
000 Xxxx 00xx Xxxxxx, Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: W. Xxxxxxx Xxxxxxxxx, Esq.
(b) if to the Purchaser or JAGfn, to:
CALP II Limited Partnership
c/o Forum Fund Services
Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxx, XX00, XXXXXXX
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxxxxxxx
With a copy to:
Xxxxx, Xxxxx and Xxxxx
000 Xxxxxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxx, Esq.
7. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing, signed by each of the parties hereto.
8. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective successors,
3
heirs, executors, representatives and assigns. Except with the prior written
consent of the other parties hereto or as otherwise provided herein, no party
may assign any of its rights or obligations hereunder.
9. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof except as otherwise expressly provided herein.
10. Severability. If any term or other provisions of this
Agreement is invalid, illegal or incapable or being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect.
11. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
12. No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to any principles of conflicts of law that might indicate the applicability of
the laws of any other jurisdiction.
14. Name; Headings. The name assigned to this Agreement and
the headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Each counterpart may
consist of a number of copies each signed by less than all, but together signed
by all, the parties hereto.
4
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by a duly authorized representative of each party hereto as of the
date first above written.
XXXXXXXX.XXX INC.
By: ____________________________
Name:
Title:
CALP II LIMITED PARTNERSHIP
By: ___________________________
Name:
Title:
JAGFN BROADBAND LLC
By: ____________________________
Name:
Title:
5
EXHIBIT D
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW
TOWARD RESALE OR DISTRIBUTION. THIS WARRANT MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE
REASONABLY ACCEPTABLE TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT.
JAGFN BROADBAND LLC
WARRANT TO PURCHASE MEMBERSHIP INTEREST
Warrant No.: A-1 Membership Interest: Two Percent (2%)
Date of Issuance: February 1, 2001
JAGfn Broadband LLC (the "Company"), hereby certifies that,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CALP II LIMITED PARTNERSHIP, the registered holder hereof
or its permitted assigns, is entitled, subject to the terms set forth below, to
purchase from the Company upon surrender of this Warrant, at any time or times
on or after the date hereof, but not after 5:00 P.M. Eastern Standard Time on
the Expiration Date (as defined herein) a TWO PERCENT (2%) MEMBERSHIP INTEREST
of the Company (the "Warrant Interest") at the Warrant Exercise Price per share
provided in Section l(a) below;
Section 1.
(a) Securities Purchase Agreement. This Warrant is being
issued pursuant to the terms of the Securities Purchase Agreement, dated as of
February 1, 2001, by and among the Company, XxxXxxxx.xxx Inc. and CALP II
Limited Partnership.
(b) Definitions. The following words and terms as used in this
Warrant shall have the following meanings:
(i) "Expiration Date" means the date five (5) years from the
date of the issuance of the Warrant or, if such date falls on a Saturday, Sunday
or other day on which banks are required or authorized to be closed in the City
of New York or the State of New York (a "Holiday"), the next preceding date that
is not a Holiday.
(ii) "Membership Interest" means a percentage interest in the
Company held by duly admitted members of the Company.
1
(iii) "Person" means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency
thereof.
(iv) "Securities Act" means the Securities Act of 1933, as
amended.
(v) "Warrant" shall mean this warrant and all warrants issued
in exchange, transfer or replacement of any thereof.
(vi) "Warrant Exercise Price" shall be equal to
U.S.$1,000,000, subject to adjustment as hereinafter provided.
(c) Other Definitional Provisions.
(i) Except as otherwise specified herein, all references
herein (A) to the Company shall be deemed to include the Company's
successors and (B) to any applicable law defined or referred to herein,
shall be deemed references to such applicable law as the same may have
been or may be amended or supplemented from time to time.
(ii) When used in this Warrant, the words "herein," "hereof,"
and "hereunder," and words of similar import, shall refer to this
Warrant as a whole and not to any provision of this Warrant, and the
words "Section," "Schedule," and "Exhibit" shall refer to Sections of,
and Schedules and Exhibits to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number includes
the plural, and vice versa.
Section 2. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant
may be exercised by the holder hereof then registered on the books of the
Company, in whole or in part, at any time on any business day or after the
opening of business on the date hereof and prior to 11:59 P.M. Eastern Standard
Time on the Expiration Date by (i) delivery of a written notice, in the form of
the subscription notice attached as Exhibit A hereto, of such holder's election
to exercise this Warrant, which notice shall specify the number of Warrant
Interests to be purchased, (ii) payment to the Company of an amount equal to the
Warrant Exercise Price in cash or by check or wire transfer, and (iii) the
surrender of this Warrant, to a common carrier for delivery to the Company as
soon as practicable following such date, this Warrant (or an indemnification
undertaking with respect to this Warrant in the case of its loss, theft, or
destruction); provided that if such Warrant Interests are to be issued in any
name other than that of the registered holder of this Warrant, such issuance
shall be deemed a transfer and the provisions of Section 7 shall be applicable.
In the event of any exercise of the rights represented by this Warrant in
compliance with this Section 2, a certificate or certificates for the Warrant
Interests so purchased, in such denominations as may be requested by the holder
hereof and registered in the name of, or as directed by, the holder, shall be
delivered at the Company's expense to, or as directed by, such holder as soon as
practicable after such rights shall have been so exercised, and in any event no
later than five (5) business days after the Company's receipt of the Exercise
Notice Exercise Price and this Warrant (or indemnification undertaking with
respect to this Warrant in the case of its loss, theft or destruction) Upon
delivery of the Exercise Notice and Exercise Price referred to in clause (ii)
(A), the holder of this Warrant shall be deemed for all corporate purposes to
have
2
become the holder of record of the Warrant Interests with respect to which this
Warrant has been exercised, irrespective of the date of delivery of this Warrant
as required by clause (iii) above or the certificates evidencing such Warrant
Interests.
Section 3. Covenants as to Membership Interests. The Company
hereby covenants and agrees as follows:
(a) This Warrant is, duly authorized and validly issued.
(b) All Warrant Interests which may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
(c) During the period within which the rights represented by
this Warrant may be exercised, the Company will at all times have authorized and
reserved at least the number of Membership Interests needed to provide for the
exercise of the rights then represented by this Warrant.
(d) The Company will not, by amendment of its Articles of
Organization or Operating Agreement or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed by it hereunder, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may reasonably be requested by
the holder of this Warrant in order to protect the exercise privilege of the
holder of this Warrant against dilution or other impairment, consistent with the
tenor and purpose of this Warrant. Without limiting the generality of the
foregoing, the Company will take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Membership Interests upon the exercise of this Warrant.
(f) This Warrant will be binding upon any entity succeeding to
the Company by merger, consolidation or acquisition of all or substantially all
of the Company's assets.
Section 4. Taxes. The Company shall not be required to pay any
tax or taxes attributable to the initial issuance of the Warrant Interests or
any permitted transfer involved in the issue or delivery of any certificates for
Warrant Interests in a name other than that of the registered holder hereof or
upon any permitted transfer of this Warrant.
Section 5. Warrant Holder Not Deemed a Member. Except as
otherwise specifically provided herein, no holder, as such, of this Warrant
shall be entitled to vote or receive distributions or be deemed the holder of
Membership Interests of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the holder hereof, as
such, any of the rights of a member of the Company or any right to vote, give or
withhold consent to any corporate action (whether any reorganization,
reclassification of securities, issuance of securities, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive dividends or
subscription rights, or otherwise, prior to the issuance to the holder of this
Warrant of the Warrant Interests which it is then entitled to receive upon the
due exercise of this Warrant.
3
In addition, nothing contained in this Warrant shall be
construed as imposing any liabilities on such holder to purchase any securities
or as a member of the Company, whether such liabilities are asserted by the
Company or by creditors of the Company. Notwithstanding this Section 5, the
Company will provide the holder of this Warrant with copies of the same notices
and other information given to the stockholders of the Company generally,
contemporaneously with the giving thereof to the members of the Company.
Section 6. Representations of Holder. The holder of this
Warrant, by the acceptance hereof, represents (and any assignor shall represent)
that it is acquiring this Warrant and the Warrant Interests for its own account
for investment purposes and not with a view to, or for sale in connection with,
any distribution hereof, and not with any present intention of distributing any
of the same. The holder of this Warrant further represents (and any assignor
shall represent), by acceptance hereof, that, as of this date, such holder is an
"accredited investor" as such term is defined in Rule 501(a)(1) of Regulation D
promulgated by the Securities and Exchange Commission under the Securities Act
(an "Accredited Investor"). Upon exercise of this Warrant, the holder shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the Warrant Interests so purchased are being acquired solely for
the holder's own account and not as a nominee for any other party, for
investment, and not with a view toward distribution or resale and that such
holder is an Accredited Investor. If such holder cannot make such
representations because they would be factually incorrect, it shall be a
condition to such holder's exercise of the Warrant that the Company receive such
other representations as the Company considers reasonably necessary to assure
the Company that the issuance of its securities upon exercise of the Warrant
shall not violate any United States Federal or state securities laws.
Section 7. Ownership and Transfer.
(a) The Company shall maintain at its principal executive
offices (or such other office or agency of the Company as it may designate by
notice to the holder hereof), a register for this Warrant, in which the Company
shall record the name and address of the person in whose name this Warrant has
been issued, as well as the name and address of each permissible transferee. The
Company may treat the person in whose name any Warrant is registered on the
register as the owner and holder thereof for all purposes, notwithstanding any
notice to the contrary, but in all events recognizing any transfers made in
accordance with the terms of this Warrant.
(b) This Warrant and the rights granted to the holder hereof
are transferable, in whole, upon surrender of this Warrant, together with a
properly executed warrant power in the form of Exhibit B attached hereto;
provided, however, that any transfer or assignment shall subject to the
conditions set forth in Section 6 above and Section 7(c) below.
(c) The holder of this Warrant understands that this Warrant
has not been and is not expected to be, registered under the Securities Act or
any state securities laws, and may not be offered for sale, sold, assigned or
transferred unless (a) subsequently registered thereunder, or (b) such holder
shall have delivered to the Company an opinion of counsel, reasonably
satisfactory in form, scope and substance to the Company, to the effect that the
securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration. Any sale of such
securities made in reliance on Rule 144 promulgated under the Securities Act may
be made only in accordance with the terms of said Rule and further, if said Rule
is not applicable, any resale of such securities under circumstances in which
the seller (or
4
the person through whom the sale is made) may be deemed to be an underwriter (as
that term is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the
Securities and Exchange Commission thereunder; and neither the Company nor any
other person is under any obligation to register the Warrant Interests under the
Securities Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder.
Section 8. Adjustment of Warrant Exercise Price. In order to
prevent dilution of the rights granted under this Warrant, the Warrant Exercise
Price shall be adjusted from time to time as follows:
(a) Adjustment of Warrant Exercise Price upon Subdivision or
Combination of Common Stock. If the Company at any time after the date of
issuance of this Warrant, subdivides (by any stock split, stock dividend,
re-capitalization or otherwise) one or more classes of its outstanding
Membership Interests into a greater number of Membership Interests, the Warrant
Exercise Price in effect immediately prior to such subdivision will be
proportionately reduced and the number of Membership Interests obtainable upon
exercise of this Warrant will be proportionately increased. If the Company at
any time after the date of issuance of this Warrant combines (by combination,
reverse stock split or otherwise) one or more classes of its outstanding
Membership Interests into a smaller number of Membership Interests, the Warrant
Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Membership Interests obtainable upon
exercise of this Warrant will be proportionately decreased.
(b) Reorganization, Reclassification, Consolidation, Merger or
Sale. Any re-capitalization, reorganization reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets to another
Person or other similar transaction which is effected in such a way that holders
of Membership Interests are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock is referred to herein as in "Organic Change." Prior to
the consummation of any Organic Change, the Company will make appropriate
provision to insure that, upon the consummation of such Organic Change, the
holder of the Warrant will thereafter have the right to acquire and receive in
lieu of the Membership Interests, such securities or assets as may be issued or
payable with respect to or in exchange for the number of Membership Interests
immediately theretofore acquirable and receivable upon exercise of the Warrant
had such Organic Change not taken place. In any such case, the Company will make
appropriate provision with respect to such holders' rights and interests to
insure that the provisions of this Section 8(b) will thereafter be applicable to
the Warrant.
(c) Notices.
(i) Immediately upon any adjustment of the Warrant Exercise
Price pursuant to this Section 8, the Company will give written notice thereof
to the holder of this Warrant, setting forth in reasonable detail and certifying
the calculation of such adjustment.
(ii) The Company will give written notice to the holder of
this Warrant at least twenty (20) days prior to the date on which the Company
closes its books or takes a record (A) with respect to any dividend or
distribution upon the Membership Interests, (B) with respect to any pro rata
subscription offer to holders of Membership Interests or (C) for determining
rights to vote with respect to any Organic Change, dissolution or liquidation,
except that in no event
6
shall such notice be provided to such holder prior to such information being
made known to the public.
(iii) The Company will also give written notice to the holder
of this Warrant at least twenty (20) days prior to the date on which any Organic
Change, dissolution or liquidation will take place.
Section 9. Lost, Stolen, Mutilated or Destroyed Warrant. If
this Warrant is lost, stolen, mutilated or destroyed, the Company shall, on
receipt of an indemnification undertaking, issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Section 10. Notice. Any notices, consents, waivers, or other
communications required or permitted to be given under the terms of this Warrant
must be in writing and will be deemed to have been delivered (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile, provided a
copy is mailed by U.S. certified mail, return receipt requested; (iii) three (3)
days after being sent by U.S. certified mail, return receipt requested; or (iv)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company: JAGfn Broadband LLC
000 Xxxx 00xx Xxxxxx, Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Holder: CALP II Limited Partnership
c/o Forum Fund Services
Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxx, XX00, XXXXXXX
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxxxxx
If to a holder of this Warrant, to it at the address set forth
below such holder's signature on the signature page hereof. Each party shall
provide five (5) days' prior written notice to the other party of any change in
address or facsimile number.
Section 10. Amendments. This Warrant and any term hereof may
be changed, waived, discharged, or terminated only by an instrument
in writing signed by the Company or holder.
Section 11. Date. The date of this Warrant is February 1,
2001. This Warrant, in all events, shall be wholly void and of no effect after
the close of business on the Expiration Date, except that notwithstanding any
other provisions hereof, the provisions of Section 7 shall
6
continue in full force and effect after such date as to any Warrant Interests or
other securities issued upon the exercise of this Warrant.
Section 12. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrant may be amended and the Company may take
any action herein prohibited, or omitted to perform any act herein required to
be performed by it, only if the Company has obtained the written consent of the
holder of Warrant, provided that no such action may increase the Warrant
Exercise Price of the Warrant or decrease the number of Membership Interests
obtainable upon exercise of the Warrant with out the written consent of the
holder of the Warrant.
Section 13. Descriptive Headings; Governing Law. The
descriptive headings of the several sections of this Warrant are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
This Warrant shall be governed by and interpreted under the laws of the State of
New York, without giving effect to any choice of law or conflict of law
provision.
[Remainder of page left intentionally blank]
7
This Warrant has been duly executed by the Company as of the
date first set forth above.
JAGFN BROADBAND LLC
By:
----------------------------------
Name:
Title:
ACCEPTED:
CALP II LIMITED PARTNERSHIP
By:
---------------------------------
Name:
Title:
8
EXHIBIT A
FORM OF SUBSCRIPTION
(Complete and sign only exercise of the Warrant in whole or in part.)
TO: JAGfn Broadband LLC
The undersigned, the holder of the attached Warrant to which
this Form of Subscription applies, hereby irrevocably elects to exercise the
purchase rights represented by such Warrant to purchase thereunder a two percent
(2%) Membership Interest from JAGfn Broadband LLC and herewith makes payment of
$1,000,000 therefor in cash or by certified or official bank check. The
undersigned hereby requests that the certificate(s) representing such securities
be issued in the name(s) and delivered the address(es) as follows:
Name: _____________________________________________
Address: _____________________________________________
Social Security Number: _____________________________________________
Deliver to: _____________________________________________
Address: _____________________________________________
-----------------------------
(Signature of Holder or Authorized
Signatory)
Signature Guaranteed: __________________________________
9
EXHIBIT B
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and
transfer to ____________________________________________ Federal Identification
No.______, a Warrant to purchase Membership Interests of JAGfn Broadband LLC, a
New York limited liability company, represented by Warrant Certificate No. A-1,
standing in the name of the undersigned on the books of said corporation. The
undersigned does hereby irrevocably constitute and appoint
____________________________, attorney to transfer the warrants of said
corporation, with full power of substitution in the premises.
Dated: _______________________
By: _________________________
Its: _________________________
10
EXHIBIT E
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
JAGfn Broadband LLC
AMENDED AND RESTATED OPERATING AGREEMENT OF JAGFN BROADBAND
LLC (the "Agreement"), is entered into as of the 2nd day of January, 2001, by
and among JAGfn BROADBAND LLC, a New York limited liability company (the
"Company") and each of XXXXXXXX.XXX INC., a Nevada corporation ("JagNotes"),
XXXXXX X. XXXXXXXXX, XXXXXXX X. XXXXXXXXX and XXXX XXXXXXXX (each a "Member" and
collectively, the "Members").
R E C I T A L S
WHEREAS, JagNotes formed the Company pursuant to and in
accordance with the New York Limited Liability Company Law, as amended from time
to time (the "LLCL") by filing Articles of Organization with the Secretary of
State of the State of New York on August 9, 2000;
WHEREAS, the Board of Directors of JagNotes has unanimously
approved the admission of Messrs. Xxxxxxxxx, Xxxxxxxxx and Xxxxxxxx as Members
of the Company; and WHEREAS, the Members desire to operate the Company on the
terms and conditions and for the other purposes stated herein.
NOW THEREFORE, in consideration of the mutual promises and
agreements herein made and intending to be legally bound, the Members agree as
follows:
1
1. Name. The name of the Company shall be JAG Broadband LLC.
2. Duration. The period of duration of the Company shall be
perpetual unless dissolved in accordance with the LLCL.
3. Purpose. The Company is formed for the purpose of engaging
in any lawful act or activity for which limited liability companies may be
formed under the LLCL and engaging in any and all activities necessary or
incidental to the foregoing.
4. Members. The name and business address of each Member is as
follows:
Name Mailing Address
---- --------------
XxxXxxxx.xxx Inc. 000 Xxxx 00xx Xxxxxx
Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx X. Xxxxxxxxx 0000 X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxxxxx 000 Xxxx 00xx Xxxxxx
Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Xxxx Xxxxxxxx 000 Xxxx 00xx Xxxxxx
Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
5. The Managers.
5.1 Management of the Company. The Company shall be managed
by one or more Managers. The Managers shall have the power, authority and
obligation to manage the business of the Company, to make all decisions
regarding the Company and to perform all other acts customary or incident to the
management of the Company. The Managers shall have the authority to implement
all major decisions approved by the Members. Any action to be taken
2
or decision to be made by the Managers shall be taken or made upon the vote of a
majority of the Managers. Any action required or permitted to be taken by a vote
of the Managers may be taken without a vote or a meeting if all of the Managers
consent thereto in writing, and the writing is filed with the records of the
Company.
5.2 Number, Tenure and Election of Managers. The initial
Managers shall be Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx and Xxxx Xxxxxxxx,
and shall, except as otherwise set forth in this Agreement, hold office until
their successors have been elected and qualified or until their earlier
resignation or removal. The number of Managers shall be fixed from time to time
by the Members, but in no event shall there be less than one Manager. Managers
shall be elected by the affirmative vote of the holders of Percentage Interest
aggregating more than 50%.
5.3 Liability of Managers. Each Manager shall perform his or
her duties in good faith and with that degree of care that an ordinarily prudent
person in a like position would use under similar circumstances. Except as may
be prohibited by law, any Manager who performs his or her duties in accordance
with this Section and the law shall have no liability by reason of being a
Manager of the Company.
5.4 Resignation. Any Manager of the Company may resign at any
time by giving written notice to the Members of the Company. The resignation of
any Manager shall take effect upon receipt of notice thereof or at such later
time as shall be specified in such notice; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
3
5.5 Removal. Any Manager of the Company may be removed or
replaced with or without cause by the affirmative vote of the holders of
Percentage Interest aggregating more than 50%.
5.6 Vacancies. Any vacancy occurring for any reason in the
number of Managers of the Company may be filled by the affirmative vote of the
holders of Percentage Interest aggregating more than 50%. A Manager elected to
fill a vacancy shall be elected for the unexpired term of his predecessor in
office. Any Manager's position to be filled by reason of an increase in the
number of Managers shall be filled by the affirmative vote of the holders of
Percentage Interest aggregating more than 50%. A Manager elected to fill a
vacancy resulting from an increase in the number of Managers shall hold office
until the next annual meeting or until a successor has been elected and
qualified.
5.7 Indemnification of Managers. Except as otherwise
prohibited by the LLCL, the Company shall indemnify, defend and hold harmless
each of the Managers against all claims, actions, proceedings, demands, losses,
damages, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees) to the extent same arise directly or indirectly from
the conduct of the business of the Company.
5.8 Compensation of Managers. Each Manager shall be reimbursed
all reasonable expenses incurred in managing the Company and shall be entitled
to compensation in such amount, if any, as may determined from time to time by
JagNotes.
4
6. Meetings of Managers.
6.1 Place of Meeting. The Managers may hold their meetings in
such place or places in e State of New York or outside the State of New York as
the Managers from time to time shall determine.
6.2 Regular Meetings. Regular meetings of the Managers shall
be held at such times and places as the Managers from time to time by resolution
shall determine. No notice shall be required for any regular meeting of the
Managers; but a copy of every resolution fixing or changing the time or place of
regular meetings shall be mailed to every Manager at least five (5) days before
the first meeting held in pursuance thereof.
6.3 Special Meetings. Special meetings of the Managers shall
be held whenever called by any majority of the Managers then in office. Notice
of the day, hour and place of holding of each special meeting shall be given by
mailing the same at least five (5) days before the meeting or by causing the
same to be transmitted by facsimile, telegram or telephone at least one (1) day
before the meeting to each Manager.
6.4 Quorum. Except as otherwise provided in the Agreement, a
majority of the Managers in office shall constitute a quorum for the transaction
of business. If at any meeting of the Managers there is less than a quorum
present, a majority of those present may adjourn the meeting from time to time.
6.5 Conference Telephone Meetings. Unless otherwise restricted
by the Agreement, the Managers or any committee designated by the Managers, may
participate in a meeting of the Managers or such committee, as the case may be,
by means of conference telephone or similar communications equipment by means of
which all persons participating in
5
the meeting can hear each other, and such participation shall constitute
presence in person at such meeting.
6.6 Consent of Managers or Committee in Lieu of Meeting.
Unless otherwise restricted by the Agreement, any action required or permitted
to be taken at any meeting of the Managers, or of any committee thereof, may be
taken without a meeting if all of the Managers or committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Managers or committee, as the case may be.
7. Ownership Interests.
7.1 JagNotes has made a cash contribution to the Company of
$10,000.00 as well as a contribution of assets to the Company pursuant to the
terms and conditions of that certain Assignment and Assumption Agreement, dated
as of August 18, 2000, by and between the Company and JagNotes, a copy of which
is attached hereto as Attachment I.
7.2 By written consent dated December 14, 2000, the Board of
Directors of JagNotes unanimously approved the admission of Xxxxxx X. Xxxxxxxxx,
Xxxxxxx X. Xxxxxxxxx and Xxxx Xxxxxxxx as Members of the Company.
7.3 Effective as of the date hereof, the percentage interest
in the Company held by the Members shall be as follows ("Percentage Interests,"
or with respect to each Member, its "Percentage Interest"):
(1) XxxXxxxx.xxx Inc.: 85%
(2) Xxxxxx X. Xxxxxxxxx: 5%
(3) Xxxxxxx X. Xxxxxxxxx: 5%
6
(4) Xxxx Xxxxxxxx: 5%
The Percentage Interests of Messrs. Xxxxxxxxx, Xxxxxxxxx and
Xxxxxxxx shall remain constant, notwithstanding the admission of future Members
or any additional financing provided by other Members.
8. Additional Contributions. The Members are not required to
make any additional capital contributions to the Company.
9. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated to each Member in accordance with its respective
Percentage Interest.
10. Distributions. Distributions shall be made to the Members
at the times and in the aggregate amounts as determined by JagNotes. Such
distributions shall be allocated to the Members in accordance with their
respective Percentage Interests.
11. Fiscal Year. The fiscal year of the Company shall end on
July 31st of each calendar year.
12. Assignments. Each Member may assign in whole or in part
its limited liability company interest in the Company, including its right to
receive distributions.
13. Withdrawal of a Member. A Member may withdraw from the
Company in accordance with the LLCL.
14. Admission of Additional Members. One or more additional
members of the Company may be admitted to the Company with unanimous consent of
the Members.
15. Liability of Members. The Members shall not have any
liability for the obligations or liabilities of the Company.
7
16. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of New York, all rights and remedies
being governed by said laws.
17. Complete Agreement. This Agreement constitutes the
complete and exclusive statement of agreement among the Members with respect to
the subject matter hereof. This Agreement replaces and supersedes in its
entirety that certain Operating Agreement of JAGfn Broadband LLC, dated as of
August 18, 2000.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Amended and Restated Operating Agreement as
of the 2nd day of January, 2001.
JAGfn Broadband LLC
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Manager
XxxXxxxx.xxx Inc.
By:
----------------------------------
Name: Xxxx Xxxxxxxx
Title: President and CEO
8
----------------------------------
Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
9
ATTACHMENT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT and ASSUMPTION AGREEMENT, executed as of this 18th
day of August, 2000 (this "Agreement"), between XxxXxxxx.xxx Inc., a Nevada
corporation (the "Assignor"), and JAGfn Broadband LLC, a New York limited
liability company (the "Assignee").
WHEREAS, the Assignor desires to contribute to the capital of
the Assignee, all of the assets owned by the Assignor relating to the Assignor's
JAGfn webcasting business (the "JAGfn Webcast"), subject to certain liabilities
thereof, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Sale and Assignment of the Assets. For One Dollar and other
good and valuable consideration, the Assignor hereby sells, assigns, transfers,
conveys, grants, bargains, sets over, releases, delivers and confirms unto the
Assignee as a contribution to its capital, for its benefit and for the benefit
of its successors and assigns, forever, the Assignor's entire right, title and
interest in tangible and intangible assets primarily relating to the Assignor's
JAGfn Webcast, including, without limitation, all intellectual property, ideas,
format, set designs, business plans, audio and/or audio-visual content,
contracts for the purchase or sale or lease of services and goods of all kinds
(tangible and intangible), all contracts entered into by the Assignee with
consultants, employees, commentators, strategic partners and service providers
which are related to the JAGfn Webcast, all rights to enter into a lease with
Chelsea Television Studios, relating to the rental of studio space at 000 Xxxx
00xx Xxxxxx, Xxxxxx X, Xxx Xxxx, Xxx Xxxx 00000, and contracts of any kind or
description (the "Assets"), in each case to the extent assignable, and if
consent is required, promptly upon such consent being obtained, to have and to
hold forever; provided, however, that the Assignor shall retain all right, title
and interest in any assets relating to the XXXxx.xxx and XxxXxxxx-Xxxx.xxx
websites of the Assignee and the development of JagNotes Latin America that are
unrelated to the JAGfn Webcast (collectively, the non-JAGfn Webcast businesses
shall be referred to as the "Website Business"). Notwithstanding the foregoing,
Assignor shall retain all right, title and interest in and to all trademarks,
whether or not relating to Assignor's JAGfn Webcast. Assignor hereby grants to
Assignee the non-exclusive, royalty-free, fully paid up, worldwide license to
use the JAGfn trademark, tradename and entity name in connection with Assignee's
exploitation of the JAGfn Webcast. Assignee shall maintain the quality of the
JAGfn Webcast at at least the level of quality of Assignor's Website Business so
as to preserve the integrity of such xxxx for the mutual benefit of Assignor and
Assignee.
2. Future Use of Assignor Content. Assignor hereby grants to
Assignee the non-exclusive, royalty-free, fully paid up, worldwide license to
make reference to the JagNotes and Rumor Room content of Assignor's Website
Business, and such other content as Assignor is permitted to license, in the
JAGfn Webcast, and to create audio-visual works based on such references.
Nothing herein shall grant to Assignee the right to display the Website Business
content, in whole or in material part, in readable form as part of any JAGfn
Webcast. Any use by Assignee of the Website Business content shall include
attribution to Assignor as the source of such content and, where practicable,
shall include a hypertext link to Assignor's website, currently accessible at
xxx.xxxxx.xxx.
3. Assumption of the Assumed Liabilities. The Assignee hereby
assumes and agrees to pay, perform and discharge forever all those liabilities
arising from all contracts and agreements assigned by Section 1 above (the
"Assumed Liabilities").
4. Representations and Warranties of Assignor. The Assignor
has and hereby conveys to the Assignee, good title (or in the case of contract
rights, all rights) to all of the Assets free and clear of any and all liens,
pledges, hypothecations, mortgages, security interests, claims, leases, charges,
options, rights of first refusal, easements, servitude, transfer restrictions,
encumbrances or any other restrictions or limitations whatsoever ("Liens")
except for any statutory Lien arising in the ordinary course of business by
operation of law with respect to an obligation or liability that is not yet due
or delinquent and any minor imperfection of title or similar Lien which
individually or in the aggregate with other such imperfections of title or Liens
could not reasonably be expected to have a material adverse effect on the
results of operation or condition (financial or otherwise) of the JAGfn Webcast.
5. Cross Indemnity. The Assignor hereby indemnifies, defends
and holds harmless, to the fullest extent permitted under applicable law, the
Assignee against any and all losses, claims, damages and liabilities other than
the Assumed Liabilities and the Assignee hereby indemnifies, defends and holds
harmless, to the fullest extent permitted under applicable law, the Assignor
against any and all losses, claims, damages and liabilities arising from the
Assumed Liabilities.
6. Due Authorization. Each of the Assignor and the Assignee
has all requisite power and authority to enter into, execute and deliver this
Agreement and to perform its obligations hereunder and each hereby represents
that this Agreement constitutes a valid and binding obligation of the Assignor
and the Assignee enforceable in accordance with its terms, except as such
enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
7. No Third Party Beneficiary. The terms and provisions of
this Agreement are intended solely for the benefit of the parties hereto and
their respective successors and
-2-
permitted assigns, and it is not the intention of the parties to confer
third-party beneficiary rights upon any other person.
8. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Assignor, to:
XxxXxxxx.xxx Inc.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxxxxxx, President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
(b) if to Assignee, to:
JAGfn Broadband LLC
000 Xxxx 00xx Xxxxxx
Studio D
New York, New York 10001
Attn: Xxxxxxx X. Xxxxxxxxx, Manager
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
9. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing, signed by each of the parties hereto.
10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective successors, heirs, executors, representatives and assigns.
Except with the prior written consent of the other parties hereto or as
otherwise provided herein, no party may assign any of its rights or obligations
hereunder.
11. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof except as otherwise expressly provided herein.
-3-
12. Severability. If any term or other provisions of this
Agreement is invalid, illegal or incapable or being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect.
13. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
14. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
15. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to any principles of conflicts of law that might indicate the applicability of
the laws of any other jurisdiction.
16. Name; Headings. The name assigned to this Agreement and
the headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
17. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Each counterpart may
consist of a number of copies each signed by less than all, but together signed
by all, the parties hereto.
-4-
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by a duly authorized representative of each party hereto as of the
date first above written.
XXXXXXXX.XXX INC.
By:
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
JAGFN BROADBAND LLC
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Manager
-5-
EXHIBIT F
SERVICES AGREEMENT
by and between
XXXXXXXX.XXX INC.
and
JAGFN BROADBAND LLC
Dated as of February 1, 2001
SERVICES AGREEMENT
SERVICES AGREEMENT (this "Agreement") dated as of February 1,
2001, by and between XXXXXXXX.XXX INC., a Nevada corporation ("JNOT"), and JAGFN
BROADBAND LLC, a New York limited liability company ("JAGfn").
RECITALS
WHEREAS, pursuant to a Securities Purchase Agreement dated as
of even date herewith (the "Purchase Agreement"), CALP II Limited Partnership
purchased JNOT's eighty-five percent (85%) membership interest in JAGfn;
WHEREAS, Section 4.03 of the Purchase Agreement contemplates
that JAGfn and JNOT shall enter into a services agreement pursuant to which
JAGfn shall provide management services to JNOT;
WHEREAS, JNOT desires to engage JAGfn to provide management
services to JNOT on the terms and conditions set forth herein and JAGfn desires
to provide those services to JNOT on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and
the respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, JNOT and JAGfn
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement.
ARTICLE II
SERVICES
SECTION 2.01 Services. During the Term of this Agreement,
JAGfn shall provide to JNOT at JNOT's request from time to time, the services
described on the attached Schedule 2.01 (A) and JNOT shall provide to JAGfn at
JAGfn's request from time to time, the services described on the attached
Schedule 2.01(B) (the "Services").
SECTION 2.02 Fees for Services. The fees to be paid in
connection with the Services shall be at the costs set forth on Schedules
2.01(A) and (B). During the Term of the Agreement, upon thirty (30) days prior
written notice, either party may discontinue the use of individual Services it
is entitled to use under this Agreement, and any fixed monthly charge will be
modified by prorating the monthly amount for the discontinued services for the
final period of actual use; provided, however, that if JAGfn
is bound by obligations toward any vendor which relate to the individual
Services to be discontinued, then the number of days in such notice period shall
not be less than the lesser of (i) the above specified number of days, and (ii)
the number of days remaining with respect to such obligations toward vendor(s).
SECTION 2.03 Standard of Services. The parties shall cause the
Services to be provided at levels of skill and diligence comparable to those
provided before the date of this Agreement. The provider of the Services shall
perform the Services giving no less priority in terms of time, personnel,
equipment and facilities, than that given to the same services which it performs
for its own account.
SECTION 2.04 Invoicing for Services. Each party will invoice
the other monthly for the amount of their respective fees, which shall be
payable within 15 days of receipt of the invoice.
ARTICLE III
INDEMNIFICATION
SECTION 3.01 Indemnification by JNOT. JNOT shall indemnify
JAGfn, and its officers, directors, employees, agents and counsel (collectively,
the "JAGfn Indemnified Parties") against, and hold JAGfn Indemnified Parties
harmless from losses, arising from or related to the subject matter of this
Agreement, suffered or incurred by a JAGfn Indemnified Party in connection with
any Claim arising from the negligence or misconduct of JNOT, its employees,
agents or representatives in the provisions of Services hereunder.
SECTION 3.02 Indemnification by JAGfn. JAGfn shall indemnify
JNOT and its officers, directors, employees, agents and counsel (collectively,
the "JNOT Indemnified Parties") against, and hold JNOT Indemnified Parties
harmless from losses, arising from or related to the subject matter of this
Agreement, suffered or incurred by a JNOT Indemnified Party in connection with
any Claim arising from the negligence or misconduct of JAGfn, its employees,
agents or representatives in the provisions of Services hereunder.
SECTION 3.03 Limitations on Indemnification Obligations;
Exclusive Remedy. The parties hereto shall have no indemnification obligations
with respect to consequential damages, damages consisting of business
interruption or lost profits, or other expectancy claims, or with respect to
punitive damages. Indemnification pursuant to the provisions of this Article III
shall be the exclusive remedy of the parties for any breach of this Agreement by
the parties hereto.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 Term. The term of this Agreement shall be the
period (the "Term") commencing on the date hereof and ending one (1) year from
such date.
SECTION 4.02 Further Assurances. Each party hereto shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be reasonably necessary or appropriate to
effectuate, carry out and comply with all of their obligations under this
Agreement.
SECTION 4.03 Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made if and when delivered personally or by overnight courier
service to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(a) if to JNOT, to:
XxxXxxxx.xxx Inc.
000 Xxxx 00xx Xxxxxx, Xxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: W. Xxxxxxx Xxxxxxxxx, Xx., Esq.
(b) if to JAGfn, to:
CALP II Limited Partnership
c/o Forum Fund Services
Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxx, XX00, XXXXXXX
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxxxxxxx
With a copy to:
Xxxxx, Xxxxx and Xxxxx
000 Xxxxxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxxx Xxxx, Esq.
SECTION 4.04 Amendments, Waivers, Etc. This Agreement may not
be amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing, signed by each of the parties hereto.
SECTION 4.05 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by the parties
hereto and their respective successors, heirs, executors, representatives and
assigns. Except with the prior written consent of the other parties hereto or as
otherwise provided herein, no party may assign any of its rights or obligations
hereunder.
SECTION 4.06 Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof and except as otherwise expressly provided herein. There are no
representations, warranties or covenants by the parties hereto relating to such
subject matter other than those expressly set forth in this Agreement.
SECTION 4.07 Severability. If any term or other provisions of
this Agreement is invalid, illegal or incapable or being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect.
SECTION 4.08 No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
SECTION 4.09 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to any principles of conflicts of law that might indicate the
applicability of the laws of any other jurisdiction.
SECTION 4.10 Name; Headings. The name assigned to this
Agreement and the headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 4.11 Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement. Each
counterpart may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
[Signature Page Follows]
IN WITNESS WHEREOF, JNOT and JAGfn have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
XXXXXXXX.XXX INC.
By:
--------------------------------
Name:
Title:
JAGFN BROADBAND LLC
By:
--------------------------------
Name:
Title:
Schedule 2.01A
Management Services: Time of Messrs. Xxxxxxxx, Xxxxxxxxx and Xxxxxxxxx as
required to discharge their obligations as officers and
directors of JNOT
Charge: 1/10th (10%) of total payroll costs for such
persons
Technical Support: 1/2 (50%) of the time of 2 technicians (currently
Xxxxxxx and Xxxxxxxxxxxxx)
Charge: 1/2 (50%) of total payroll costs for such
persons
Administrative Support: 1/4 (25%) of the time of one office administrator
(currently XxXxxxx) and one bookkeeper (currently
Xxxxxx)
Charge: 1/4 (25%) of total payroll costs for such
persons
Office Space: Those offices described as "Mezzanine Support Space"
as defined in Exhibit B(ii) to the Chelsea Television
Studios lease dated as of April 1, 2000, with related
utilities
Charge: $725 per month
Telecommunications: Office, telephone and fax service until such time (not
to exceed two months) as JNOT can install its own
direct lines
Charge: None
Schedule 2.01B
Website Access: JNOT will continue to provide access to the JAGfn
webcast through JNOT's servers for so long as required
by JAGfn, but the parties undertake as soon as feasible
to transfer one server presently being leased by JNOT
from Woodbourne Solutions, Inc. to a direct lease by
JAGfn.
Charge: Flow through of JNOT cost pro rated for one
server (i.e., 20% of current cost of approx.
$10,000 per month).
