Exhibit 10.6
J. CROSS MARKETING, LLC
LIMITED LIABILITY COMPANY AGREEMENT
This limited liability company agreement of J. Cross Marketing, LLC, a
Delaware limited liability company, is entered into the 8th day of June,
2001, by and between Media Outsourcing, Inc., a Delaware corporation ("MOS"),
and JWE Holdings, Inc., a Delaware corporation ("JWE").
Intending to be legally bound hereby, the parties hereto agree as follows:
SECTION 1
DEFINED TERMS; OPERATION OF COMPANY
1.1 Defined Terms. When used in this Agreement, the following
capitalized terms shall have the meanings set forth below:
"Act" means the Delaware Limited Liability Company Act.
"Adjusted Capital Account" means a Member's Capital Account,
adjusted as follows: (a) any deficit balance in a Member's Capital Account shall
be reduced by any amount that the Member is obligated to restore to the Company,
or any amount the Member is treated as obligated to restore to the Company under
Regulation ss.1.704-1(b)(2)(ii)(c), Regulation ss.1.704-2(g), and Regulation
ss.1.704-2(i)(5); and (b) a Member's Capital Account shall be adjusted for items
specified in subsections (4), (5), and (6) of Regulation
ss.1.704-1(b)(2)(ii)(d).
"Affiliate" means, with respect to any Person, (i) any Person
directly or indirectly controlling, controlled by, or under common control with
such Person, (ii) any Person owning or controlling ten percent (10%) or more of
the outstanding voting interests of such Person, (iii) any officer, director,
general partner, or manager of such Person, or (iv) any Person who is an
officer, director, general partner, manager, trustee, or holder of ten percent
(10%) or more of the voting interests of any Person described in clauses (i)
through (iii) of this sentence. For purposes of this definition, "controls," "is
controlled by," or "is under common control with" shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agreement" means this limited liability company agreement, as the
same may be amended from time to time.
"Bankruptcy" means, with respect to any Person, (i) the filing of
any petition or answer by such Person seeking to adjudicate it a bankrupt or
insolvent, or seeking for itself any liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of such Person or
such Person's debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking, consenting to, or acquiescing
in the entry of an order for relief or the appointment of a receiver, trustee,
custodian, or other similar official for such Person for any substantial part of
its property, or (ii) without the consent or acquiescence of such Person, the
entering of an order for relief or approving a petition for relief or
reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or other similar relief
under any bankruptcy, liquidation, dissolution, or other similar statute, law,
or regulation, or the filing of any such petition against such Person which
petition shall not be dismissed within ninety (90) days, or, without the consent
or acquiescence of such Person, the entering of an order appointing a trustee,
custodian, receiver, or liquidator of such Person or of all or any substantial
part of the property of such Person which order shall not be dismissed within
sixty (60) days.
"Book Value" means the adjusted basis of the Company's property for
federal income tax purpose, with the adjustments provided in Section 2.4.4 of
this Agreement.
"Capital Account" means the account established and maintained for
each Member in accordance with Section 2.4 of this Agreement.
"Capital Contribution" means the amount of money and the Book Value
of any property contributed to the Company by a Member (net of any liabilities
to which such property is subject or that are assumed by the Company in
connection with such contribution).
"Capital Event" means any disposition of all or any part of Company
property not in the ordinary course of business including, without limitation, a
sale, exchange, condemnation, casualty, or grant of a long-term leasehold, or
the borrowing of money by the Company, secured by Company property or any part
thereof, for the purpose of making distributions to the Members or paying the
entire balance due, including accrued interest, on any outstanding loan secured
by Company property or any part thereof.
"Certificate" means the certificate of formation for the Company,
and any amendments thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the limited liability company formed and operated
pursuant to the terms of this Agreement.
"Company Minimum Gain" has the same meaning as partnership minimum
gain set forth in Regulation ss.1.704-2(b)(2) and 1.704-2(d).
"Depreciation" means the amount determined for each year or other
period as an amount equal to the depreciation, amortization, or other cost
recovery deduction allowable with respect to any Company property for such year
or other period, except that, if the Book Value of any property differs from its
adjusted tax basis for federal income tax purposes at the beginning of such year
or other period, Depreciation shall be an amount that bears the same ratio to
such beginning Book Value as the federal income tax depreciation, amortization,
or other cost recovery deduction for such year or other period bears to such
beginning adjusted tax basis; provided, however, that if the adjusted tax basis
of a property at the beginning of a year is zero, Depreciation shall be
determined for such property with reference to Book Value using any reasonable
method selected by the Members.
"Incapacity" means (a) with respect to a natural Person, the
Bankruptcy, death or determination of incompetency or insanity of such Person
and (b) with respect to any other Person, the Bankruptcy, liquidation or
dissolution of such Person.
"Indemnified Party" means MOS and JWE, and any officer, director,
shareholder, partner, member, manager, employee, or agent of MOS or JWE.
"Interest" means an ownership interest in the Company, including all
or any part of the rights and obligations in connection therewith under this
Agreement and the Act.
"Members" means MOS and JWE, and any Person subsequently admitted as
a Member in accordance with the terms of this Agreement.
"Member Nonrecourse Debt" has the same meaning as the definition of
partner nonrecourse debt set forth in Regulation ss.1.704-2(b)(4).
"Member Nonrecourse Debt Minimum Gain" has the same meaning as
partner nonrecourse debt minimum gain set forth in Regulation ss.1.704-2(i)(3).
"Member Nonrecourse Deductions" has the same meaning as partner
nonrecourse deductions set forth in Regulation ss.1.704-2(i)(2).
"Net Capital Proceeds" means gross cash or property received by the
Company from all Capital Events, including reductions in Reserves that reduced
Net Capital Proceeds for prior periods, reduced by the portion used (i) to pay
Company costs and expenses incurred in connection with such Capital Event,
including repayment of any Member Loans and any other Company indebtedness then
due, and (ii) to fund Reserves.
"Net Ordinary Proceeds" means gross cash or property received by the
Company from all sources other than Capital Contributions or Capital Events,
including reductions in Reserves that reduced Net Ordinary
Proceeds for prior periods, reduced by the portion used (i) to pay Company
expenses, including repayment of any Member Loans and any other debt service,
and (ii) to fund Reserves.
"Nonrecourse Deductions" has the meaning set forth in Regulation
ss.1.704-2(b)(1).
"Person" means any individual or any partnership, corporation,
trust, limited liability company or other legal entity.
"Profits" and "Losses" mean, for each year or other period, an
amount equal to the Company's taxable income or loss for such year or period,
determined in accordance with ss.703(a) of the Code (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
ss.703(a)(1) of the Code shall be included in taxable income or loss), with the
following adjustments:
(a) Any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Profits and Losses
shall be added to such taxable income or loss.
(b) Any expenditures of the Company described in
ss.705(a)(2)(B) of the Code or treated as ss.705(a)(2)(B) expenditures pursuant
to Regulation ss.1.704-1(b)(2)(iv)(i) and not otherwise taken into account in
computing Profits and Losses shall be subtracted from such taxable income or
loss.
(c) If the Book Value of any Company property is adjusted
pursuant to Section 2.4.4(b) of this Agreement, the amount of such adjustment
shall be taken into account as Profit Loss from the disposition of such property
for purposes of computing and allocating Profits or Losses.
(d) Gain or loss resulting from any disposition of Company
property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Book Value of the asset disposed
of, notwithstanding that the adjusted tax basis of such asset differs from its
Book Value.
(e) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such year or other period as
determined in accordance with this Agreement.
(f) To the extent adjustment to the adjusted tax basis of any
Company asset pursuant to ss.734(b) or ss.743(b) of the Code is required,
pursuant to Regulations ss.1.704-1(b)(2)(iv)(m), to be taken into account in
determining Capital Accounts, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases such basis) and such
gain or loss shall be allocated to the Members in a manner consistent with the
manner in which their Capital Accounts are required to be adjusted pursuant to
such section of the Regulations.
(g) Items of income, gain, loss or deduction specially
allocated pursuant to Section 4.2 of this Agreement shall be excluded from
Profits and Losses.
"Regulations" means the income tax regulations promulgated under the
Code, as such regulations may be amended from time to time.
"Reserves" means amounts set aside to pay future costs or expenses
that are anticipated to exceed cash available to pay such costs or expenses when
due, as determined by the sole discretion of the Members.
"Tax Matters Member" shall have the same meaning as the definition
of tax matters partner under ss.6231(a)(7) of the Code.
"Unreturned Capital Contributions" means a Member's Capital
Contributions reduced (but not below zero) by all distributions to such Member
pursuant to Section 3.2(a). If there is a revaluation of Company property in
accordance with Section 2.4.4(b)(i) or (ii) of this Agreement, the amount of any
adjustment to a Member's Capital Account in connection with such revaluation
shall be treated as an increase (if such adjustment is positive) or decrease (if
such adjustment is negative) in such Member's Unreturned Capital Contributions.
If any Interest is transferred in accordance with the terms of this Agreement,
the transferee shall succeed to the Unreturned Capital Contribution of the
transferor to the extent it relates to the transferred Interest.
1.2 Formation; Name. The Company was formed by the filing of the
Certificate. The Members hereby agree to operate the Company as a limited
liability company under the Act. The Company shall be operated under the name
"J. Cross Marketing, LLC." The Members or an authorized person shall file such
other certificates and documents as are necessary to continue the Company as a
limited liability company and to qualify the Company to conduct business in any
jurisdiction in which the Company conducts business. A copy of the Certificate
shall be provided to any Member on request.
1.3 Registered Agent and Office; Principal Office. The registered agent
and office of the Company required under the Act shall be as designated in the
Certificate, and may be changed by the Members in accordance with the Act. The
principal business office of the Company shall be located at 000 X.X. Xxxxxxx 00
Xxxxx, Xxxxxxxxx, XX 00000, or such other address as shall be designated with
written notice to the Members.
1.4 Purpose. The sole purpose and business of the Company is to own and
operate a teleservices business to sell subscription magazines. The Company
shall not engage in any other business. The Company is authorized to do any and
all acts and things necessary, appropriate, advisable, incidental to, or
convenient for the furtherance and accomplishment of its purposes, and for the
protection and benefit of the Company. The Members agree that the projections
attached hereto as Exhibit "A" are commercially reasonable and that the Company
will operate on the basis of such projections.
1.5 Term. The term of the Company shall commence on the date of filing of
the Certificate, and the Company shall continue until terminated in accordance
with this Agreement.
1.6 Title to Property. All real and personal property owned by the Company
shall be owned by the Company as an entity and no Member shall have any
ownership interest in such property in the Member's individual name or right,
and each Member's Interest shall be personal property for all purposes. The
Company shall hold all of its real and personal property in the name of the
Company and not in the name of any Member.
1.7 Waiver of Partition. No Member shall either directly or indirectly
take any action to require partition or appraisement of the Company or of any of
its assets or properties or cause the sale of any Company property, and
notwithstanding any provisions of applicable law to the contrary, each Member
hereby irrevocably waives any and all right to maintain any action for partition
or to compel any sale with respect to such Member's Interest, or with respect to
any assets or properties of the Company, except as expressly provided in this
Agreement.
1.8 No State-Law Partnership. The Members intend that the Company not be a
partnership, and that no Member be a partner of any other Member, for any
purposes other than federal and state tax purposes, and this Agreement shall not
be construed to suggest otherwise.
SECTION 2
CAPITAL CONTRIBUTIONS; MEMBER LOANS; CAPITAL ACCOUNTS
2.1 Capital Contributions. The Members have made the following
Capital Contributions: MOS $75,000, JWE $25,000. No Member shall be
obligated to make any additional Capital Contributions to the Company.
2.2 Member Loans. At any time during the first two (2) years after the
date of this Agreement, if requested in writing by either Member, each Member
shall advance additional funds to the Company as loans pursuant to this Section
2.2 (the "Member Loans"). No Member shall be required to make Member Loans that
exceed in total the principal amount set forth for such Member in this Section
2.2. The notice of the need for a Member Loan shall set forth the total amount
to be advanced by all Members pursuant to the notice, the purpose for which the
funds are needed by the Company, and each Member's proportionate share of the
Member Loans to be made pursuant to the notice. Within ten (10) days after
receipt of notice of the need for Member Loans, each Member shall lend to the
Company its share of such Member Loans. The first $400,000 of Member Loans shall
be advanced in the following proportions: MOS 75%, JWE 25%. The next $500,000 of
Member Loans shall be advanced in the following proportions: MOS 25%, JWE 75%.
All Member Loans shall bear interest at the short-term applicable Federal rate
determined under Section 1274(d) of the Code that is in effect for the month in
which the funds are advanced to the Company. Interest only shall be paid
quarterly on each Member Loan. The entire principal of each Member Loan shall be
repaid at maturity on the date that is the third anniversary of the Member Loan,
provided, however, that Member Loans may be prepaid prior to maturity, and no
amounts shall be distributed to the Members as Net Ordinary Proceeds
or Net Capital Proceeds until all Member Loans have been repaid in full. All
repayments of Member Loans shall be applied first to the principal and interest
on the most recent Member Loans, and shall be allocated between the Members in
the same proportions as such Member Loans were advanced. JWE shall cause its
shareholder to execute and deliver to the Company a guaranty of JWE's obligation
to make Member Loans.
2.3 No Interest on Capital. No interest shall be paid on any Capital
Contributions or Capital Account balance of any Member.
2.4 Capital Accounts. A Capital Account shall be maintained and
adjusted for each Member in accordance with the following provisions:
2.4.1 Additions to Capital Accounts. To each Member's Capital
Account there shall be added the Member's Capital Contributions and the Member's
distributive share of Profits and any items of income or gain which are
allocated separately from Profits under Section 4.2.
2.4.2 Subtractions from Capital Accounts. From each Member's Capital
Account there shall be subtracted the amount of money and the Book Value of any
Company property distributed to the Member (net of any liabilities to which the
property is subject or that are assumed by the Member in connection with the
distribution), and the Member's distributive share of Losses and any items of
expenses or losses which are allocated separately from Losses under Section 4.2.
2.4.3 Transfers. If any Interest is transferred in accordance with
the terms of this Agreement, the transferee shall succeed to the Capital Account
of the transferor to the extent it relates to the transferred Interest.
2.4.4 Book Values. For purposes of determining a Member's Capital
Contributions and Capital Account, property held by the Company shall be taken
into account in accordance with the following provisions:
(a) The Book Value of any property contributed by a Member to
the Company initially shall be the gross fair market value of the property.
(b) The Book Value of all Company property shall be adjusted
to equal the respective gross fair market values of the property as of the
following times: (i) the acquisition of an additional Interest by any new or
existing Member in exchange for services or more than a de minimis Capital
Contribution; (ii) the distribution by the Company to a Member of more than a de
minimis amount of Company property as consideration for an Interest; or (iii)
the liquidation of the Company within the meaning of Regulation
ss.1.704-1(b)(2)(ii)(g).
(c) The Book Values of Company property shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such property
pursuant to ss.734(b) or ss.743(b) of the Code, but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to
Regulation ss.1.704-1(b)(2)(iv)(m).
(d) The Book Value of Company property shall be adjusted by
the Depreciation taken into account with respect to such property.
2.4.5 Compliance with Regulations. The foregoing provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with ss.704(b) of the Code and the Regulations issued thereunder, and shall be
interpreted and applied in a manner consistent with such Regulations. If the
Members determine that it is appropriate to modify the manner in which the
Capital Accounts are computed in order to comply with such Regulations, the
Members may make such modification, provided that such modification shall not
have a material effect on the amounts distributable to any Member.
2.5 No Deficit Make-Up. No Member shall be obligated to the Company, or
any other Member solely because of a deficit balance in such Member's Capital
Account.
SECTION 3
DISTRIBUTIONS
3.1 Distributions of Net Ordinary Proceeds. Net Ordinary Proceeds shall be
distributed among the Members within ten (10) days after the end of each
calendar quarter. Net Ordinary Proceeds shall be distributed 50% to MOS and 50%
to JWE.
3.2 Distributions of Net Capital Proceeds. Net Capital Proceeds will
be distributed among the Members within thirty (30) days after receipt by the
Company as follows:
(a) First, among the Members in proportion to their relative
Unreturned Capital Contributions, until all Unreturned Capital Contributions
have been reduced to zero;
(b) Then, 50% to MOS and 50% to JWE.
3.3 Amounts Withheld. The Company is authorized to withhold from
distributions or with respect to allocations and pay over to any federal, state,
local, or foreign government any amounts required to be withheld pursuant to any
provisions of federal, state, local, or foreign law. All amounts so paid shall
be treated as amounts distributed to the Members pursuant to this Agreement. To
the extent any amount withheld with respect to a Member pursuant to this Section
3.3 for any year exceeds the amount distributable to such Member for such year,
such Member shall repay such excess to the Company within ten (10) days after
such Member receives written notice from the Company of the amount of such
excess.
3.4 Distributions in Kind. The Company may distribute property other than
cash to the Members. All such distributions shall be made based upon the fair
market value of such property at the time of distribution.
3.5 Limitation on Distributions. The Company shall not make any
distributions of Net Ordinary Proceeds or Net Capital Proceeds until (i) all
Member Loans have been repaid in full, and (ii) the Company has realized net
positive earnings before depreciation and amortization.
SECTION 4
PROFITS AND LOSSES
4.1 General Allocation of Profits and Losses. After taking into account
any special allocations pursuant to Section 4.2 and subject to any limitations
contained therein, Profits or Losses for each year shall be allocated among the
Members in accordance with this Section 4.1.
4.1.1 Profits from Operations. Profits from any source other than a
Capital Event shall be allocated among the Members as follows:
(a) First, 50% to MOS and 50% to JWE until the Members have been
allocated cumulative Profits pursuant to this Section 4.1.1(a) for the current
year and all prior years equal to the cumulative Losses allocated pursuant to
Section 4.2.2(c) for all prior years;
(b) Then, 75% to MOS and 25% to JWE until the cumulative Profits
allocated pursuant to this Section 4.1.1(b) for the current year and all prior
years equal the cumulative Losses allocated pursuant to Section 4.1.2(b) for all
prior years;
(c) Then, 50% to MOS and 50% to JWE.
Notwithstanding the foregoing, the Members understand that after Capital Account
balances have been reduced to zero, losses up to the amount of any Member Loans
made pursuant to Section 2.2 will be allocated pursuant to Section 4.2.3 in
accordance with each Member's share of such Member Loans, taking into account
the relative priority of repayment of such Member Loans.
4.1.2 Losses from Operations. Losses from any source other than a
Capital Event shall be allocated among the Members as follows:
(a) First, 50% to MOS and 50% to JWE until the Members have been
allocated cumulative Losses pursuant to this Section 4.1.2(a) for the current
year and all prior years equal to the cumulative Profits allocated pursuant to
Section 4.1.1(c) for all prior years;
(b) Then, 75% to MOS and 25% to JWE until the cumulative Losses
allocated pursuant to this Section 4.1.2(b) for the current year and all prior
years equal the sum of the Members' Unreturned Capital Contributions and the
cumulative Profits allocated pursuant to Section 4.1.1(b) for all prior years;
(c) Then, 50% to MOS and 50% to JWE.
4.1.3 Profits from Capital Events. After adjusting Capital Accounts
for all allocations of Profits and Losses pursuant to Section 4.1.1 and Section
4.1.2 and distributions pursuant to Section 3.1 for the year, but prior to
adjusting Capital Accounts for distributions pursuant to Section 3.2 for the
year, Profits from a Capital Event shall be allocated among the Members as
follows:
(a) First, among the Members with negative Capital Account balances
in proportion to each such Member's relative negative Capital Account balance,
until all negative Capital Account balances are eliminated;
(b) Then, among the Members with Unreturned Capital Contributions in
excess of their Capital Account balances in proportion to each such Member's
share of such excess, until each Member's Capital Account balance is equal to
such Member's Unreturned Capital Contribution;
(c) Then, 50% to MOS and 50% to JWE.
4.1.4 Losses from Capital Events. After adjusting Capital Accounts
for all allocations of Profits and Losses pursuant to Section 4.1.1 and Section
4.1.2 and distributions pursuant to Section 3.1 for the year, but prior to
adjusting Capital Accounts for distributions pursuant to Section 3.2 for the
year, Losses from a Capital Event shall be allocated among the Members as
follows:
(a) First, among the Members with Capital Account balances in excess
of their Unreturned Capital Contributions in proportion to each such Member's
share of such excess, until each Member's Capital Account balance is equal to
such Member's Unreturned Capital Contribution;
(b) Then, among the Members with positive Capital Account balances
in proportion to each such Member's relative positive Capital Account balance,
until all positive Capital Account balances are eliminated;
(c) Then, 50% to MOS and 50% to JWE.
4.2 Special Allocations.
4.2.1 Limitation on Allocation of Items of Loss or Deduction. No
Company items of loss or deduction may be allocated to any Member to the extent
such allocation would result in an Adjusted Capital Account deficit balance for
such Member. Any items of loss or deduction that are prohibited to be allocated
to a Member under the preceding sentence shall be reallocated among the other
Members to whom such limitation does not apply. If, at the end of a year, any
Member has an Adjusted Capital Account deficit balance, such Member shall be
allocated items of gross income and gain to the extent necessary to eliminate
such deficit balance.
4.2.2 Nonrecourse Deductions and Company Minimum Gain Chargeback.
Nonrecourse Deductions shall be allocated 50% to MOS and 50% to JWE. If there is
a net decrease in Company Minimum Gain for any year, each Member shall be
allocated the next available items of income and gain for such year (and for
subsequent years if necessary) equal to such Member's share of the net decrease
in Company Minimum Gain as determined in accordance with Regulation
ss.1.704-2(g) and the "minimum gain chargeback" requirement of Regulation
ss.1.704-2(f).
4.2.3 Member Nonrecourse Deductions and Chargeback. Member
Nonrecourse Deductions for any year shall be allocated to the Member who bears
the economic risk of loss with respect to the Member Nonrecourse Debt to which
such Member Nonrecourse Deductions are attributable as determined under
Regulation ss.1.704-2(i). If there is a net decrease in Member Nonrecourse Debt
Minimum Gain in any year, each Member shall be
allocated items of income and gain for such year (and for subsequent years if
necessary) equal to such Member's share of the net decrease in Member
Nonrecourse Debt Minimum Gain in accordance with Regulation ss.1.704-2(i)(4).
4.2.4 Qualified Income Offset. Any Member who unexpectedly receives,
with respect to the Company, an adjustment, allocation, or distribution of any
item described in subsections (4), (5), or (6) of Regulation
ss.1.704-1(b)(2)(ii)(d) shall be allocated items of income and gain in an amount
sufficient to eliminate such Member's Adjusted Capital Account deficit balance
arising thereby as quickly as possible, in accordance with the "qualified income
offset" rule of Regulation ss.1.704-1(b)(2)(ii)(d)(3).
4.2.5 Curative Allocations. The special allocations set forth in
this Section 4.2 are intended to comply with the requirements of the Regulations
under ss.704(b) of the Code. It is the intent of the Members that all such
special allocations shall be offset with other special allocations. Accordingly,
to the extent consistent with the Regulations, to the extent that any such
special allocations are made to a Member, subsequent offsetting special
allocations shall be made to such Member such that the net amount of all items
of income, gain, loss and deduction allocated to each Member is the same that
would have been allocated to each Member if no special allocations had been made
to any Member, taking into account future special allocations that, although not
yet made, are likely to offset previous special allocations.
4.3 Allocation During Year. For purposes of determining Profits, Losses,
or any other items allocable to any period ending on a date other than the last
day of the Company's year, Profits, Losses, and items of income, gain, loss and
deduction shall be allocated among such periods in accordance with ss.706 of the
Code and the Regulations thereunder, using such allocation method (pro rata or
interim closing of the books or other method permitted by the Regulations) as
shall be determined by the Members.
4.4 Tax Allocations.
4.4.1 General Allocation. Except as otherwise provided in this
Section 4.4, items of income, gain, loss and deduction as determined for federal
income tax purposes shall be allocated in the same manner as the related items
of Profits, Losses, or specially allocated items. Tax credits shall be allocated
in accordance with Regulation ss.1.704-1(b)(4)(ii).
4.4.2 Contributed Property. In accordance with ss.704(c) of the Code
and the Regulations thereunder, income, gain, loss, and deduction with respect
to any property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal income
tax purposes and its Book Value.
4.4.3 Revaluations. If the Book Value of any Company property is
adjusted pursuant to Section 2.4.4(b) of this Agreement, income, gain, loss and
deduction with respect to such property shall be allocated among the Members so
as to take account of any variation between the adjusted basis of such property
for federal income tax purposes and its Book Value in the same manner as under
ss.704(c) of the Code and the Regulations thereunder.
4.4.4 No Effect on Capital Accounts. Allocations pursuant to this
Section 4.4 are solely for purposes of federal, state, and local taxes and shall
not affect, or in any way be taken into account in computing, any Member's
Capital Account or share of Profits, Losses, or other items or distributions
pursuant to any provision of this Agreement.
4.4.5 Allocation Method. The method for making allocations pursuant
to Section 4.4.2 and Section 4.4.2 shall be such method permitted by Regulation
ss.1.704-3 as shall be selected by the Members.
SECTION 5
MANAGEMENT OF COMPANY
5.1 General Provisions Concerning Management. The powers of the Company
shall be exercised by or under the authority of, and the business and affairs of
the Company shall be managed under the direction of, the Members. All Company
decisions and actions shall require the consent of MOS and JWE. The Members may
delegate decisions regarding the day-to-day operations of the Company to Persons
appointed by the Company for such purpose, subject to the review and approval of
the Members.
5.2 Contracts with Affiliates. The Company may enter into contracts and
agreements for property or services in the ordinary course of business with any
Member or any Affiliate of a Member, provided such contracts and agreements are
on terms and conditions which are no less favorable to the Company than could be
obtained by the Company in the same type of transaction with an independent
third party. The Members hereby expressly approve the agreements to be entered
into by the Company in substantially the form attached hereto as the Fulfillment
Service Agreement, as Exhibit "B," the Management Support Services Agreement, as
Exhibit "C," and the Lease Agreement, as Exhibit "D," and any modification,
variation, supplementation or amendment in any respect and at any time to either
of the agreements which are in substantially the form attached hereto as Exhibit
"B" and Exhibit "C" shall require the approval of all of the Members.
5.3 Company Expenses. All expenses of the Company shall be billed directly
to and be paid by the Company, provided, however, that JWE will recruit and
train all Company personnel at no charge to the Company except for reimbursement
of JWE's reasonable and customary out-of-pocket expenses as substantiated to the
reasonable satisfaction of the Company.
SECTION 6
BOOKS AND RECORDS; TAX AND FINANCIAL MATTERS
6.1 Books and Records. The Company books and records shall be maintained
at the principal office of the Company. The Company books shall be closed and
balanced at the end of each year. The books and records of the Company shall be
available for inspection by any Member at the principal business office of the
Company during normal business hours.
6.2 Fiscal Year. The year of the Company shall end on the last day
of the month of December each year.
6.3 Reports and Tax Returns. The Company shall transmit to each Member
after the end of each year the Schedule K-1 (form 1065) for the Member for such
year. All tax elections concerning the Company shall be made by the Tax Matters
Member.
6.4 Tax Matters Member. MOS shall be the Tax Matters Member. The
Tax Matters Member shall exercise all of the authority of a "tax matters
partner" under the Code.
6.5 Banking. All funds of the Company shall be deposited in the name of
the Company in such checking account or accounts as shall be designated by the
Members. All withdrawals therefrom are to be made upon checks signed by a Person
or Persons authorized by the Members.
SECTION 7
TRANSFERS, ADMISSIONS, AND WITHDRAWALS
7.1 Transfers. No Member shall transfer, sell, assign, encumber, or
otherwise dispose of all or any portion of the Member's Interest, including
without limitation by way of liquidation, dissolution, merger, consolidation,
division, or other reorganization of a Member, without the written consent of
all of the other Members. Any purported transfer, sale, assignment, encumbrance,
or other disposition in violation of this Agreement shall be null and void. A
change of control of MOS's parent shall not be deemed a transfer, sale,
assignment, encumbrance or other disposition of all or any portion of a Member's
Interest.
7.2 Admissions. No Person shall be admitted as a Member of the Company,
either as a permitted transferee of an Interest or through issuance of any new
Interests by the Company, without the written consent of all of the Members, and
only if the transferee agrees to be legally bound by this Agreement as a Member
and executes and delivers to the Company such documents and instruments as are
necessary or appropriate in connection with the transferee becoming a Member,
and pays all costs and expenses incurred by the Company in connection with such
admission. Any permitted transferee who is not admitted as a Member shall have
the rights of the transferor to the allocations and distributions with respect
to the transferred Interest, but shall have no rights as a Member under this
Agreement and the Act.
7.3 No Withdrawal. No Member shall have the right to withdraw from
the Company prior to the dissolution and winding up of the Company.
7.4 Incapacity of Member. The Incapacity of a Member shall not dissolve or
terminate the Company. In the event of such Incapacity, provided the transfer of
the Member's Interest complies with Section 7.1, the executor, administrator,
guardian, trustee or other personal representative or successor in interest of
the Member affected by such Incapacity shall be deemed to be the assignee of
such Member's Interest and may, subject to Section 7.2, become a substituted
Member.
SECTION 8
TERMINATION AND DISSOLUTION
8.1 Dissolution Events. The Company shall be terminated and dissolved
only upon the election of all of the Members, or upon the entry of a final
decree of judicial dissolution under the Act.
8.2 Liquidation.
8.2.1 Winding Up. Upon the dissolution of the Company, the Company's
business shall be liquidated in an orderly manner. The Members shall determine
which Company property shall be distributed in-kind and which Company property
shall be liquidated. Profits and Losses up to and including the liquidation
shall be allocated among the Members in accordance with Section 4. The
liquidation of Company property shall be carried out as promptly as is
consistent with obtaining the fair value thereof.
8.2.2 Payments and Distributions. Company property or the proceeds
therefrom, to the extent sufficient therefor, shall be applied and distributed
in the following order of priority, with no distribution being made in any
category set forth below until each preceding category has been satisfied in
full:
(a) To the payment and discharge of all of the Company's
debts and liabilities, including any debts and liabilities owed to any
Member, and to the expenses of liquidation;
(b) To the establishment of Reserves (which Reserves, to the
extent no longer needed by the Company, shall be distributed in accordance with
the order of priority set forth in Section (c) hereof);
(c) To and among the Members in accordance with Section 3
of this Agreement.
SECTION 9
EXCULPATION AND INDEMNIFICATION
9.1 Exculpation. No Indemnified Party shall be liable, responsible or
accountable in damages or otherwise to the Members for any act or omission
performed or omitted by the Indemnified Party in good faith pursuant to the
authority granted to the Indemnified Party under this Agreement and in a manner
reasonably believed by the Indemnified Party to be in the scope of the authority
granted to the Indemnified Party by this Agreement and in the best interests of
the Company, provided that the act or omission is not determined by a court to
be due to the Indemnified Party's willful misconduct or recklessness.
9.2 Indemnification. The Company shall indemnify and hold harmless each
Indemnified Party against any loss or damage (including attorneys' and other
professional fees) incurred by the Indemnified Party on behalf of the Company or
in furtherance of the Company's interests, without relieving the Indemnified
Party of liability for willful misconduct or recklessness. The satisfaction of
any indemnification shall be from and limited to Company's assets and no Member
shall have any liability on account thereof. The right to indemnification shall
include the right to be paid or reimbursed by the Company the reasonable
expenses incurred by the Indemnified Party in advance of the final disposition
of any proceeding; provided, however, that the advance payment of such expenses
shall be made only upon delivery to the Company of a written affirmation by such
Indemnified Party of such Indemnified Party's good faith belief that the
Indemnified Party has met the standard of conduct necessary for indemnification
under this Agreement and a written undertaking, by or on behalf of such
Indemnified Party, to repay all amounts so advanced if it shall ultimately be
determined that such Indemnified Party is not entitled to be indemnified under
this Agreement or otherwise.
SECTION 10
REPRESENTATIONS AND WARRANTIES
10.1 General. As of the date hereof, each of the Members makes each of the
representations and warranties applicable to such Member as set forth in this
Section 10.1, and such representations and warranties shall survive the
execution of this Agreement.
10.1.1 Due Incorporation or Formation; Authorization of Agreement.
If such Member is a corporation, partnership, trust, limited liability company,
or other legal entity, it is duly organized or formed, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation or
formation and has the power and authority to own property and carry on its
business as owned and carried on at the date hereof and as contemplated hereby.
Such Member is duly licensed or qualified to do business and in good standing in
each of the jurisdictions in which the failure to be so licensed or qualified
would have a material adverse effect on its financial condition or its ability
to perform its obligations hereunder, and the execution, delivery, and
performance of this Agreement has been duly authorized by all necessary
corporate or partnership or company action. This Agreement constitutes the
legal, valid, and binding obligation of each Member.
10.1.2 No Conflict or Default. The execution, delivery, and
performance of this Agreement and the consummation by such Member of the
transactions contemplated hereby (i) will not conflict with, violate, or result
in a breach of any of the terms, conditions, or provisions of any law,
regulation, order, writ, injunction, decree, determination, or award of any
court, any governmental department, board, agency, or instrumentality, or any
arbitrator, applicable to such Member, and (ii) will not conflict with, violate,
result in a breach of, or constitute a default under any of the terms,
conditions, or provisions of the articles of incorporation, bylaws, partnership
agreement, or operating agreement of such Member, or of any material agreement
or instrument to which such Member is a party or by which such Member is or may
be bound or to which any of its material properties or assets are or may be
subject.
10.1.3 Governmental Authorizations. Any registration, declaration or
filing with or consent, approval, license, permit or other authorization or
order by, any governmental or regulatory authority that is required in
connection with the valid execution, delivery, acceptance, and performance by
such Member under this Agreement or the consummation by such Member of any
transaction contemplated hereby has been completed, made, or obtained on or
before the effective date of this Agreement.
10.1.4 Litigation. There are no actions, suits, proceedings, or
investigations pending or, to the knowledge of such Member, threatened against
or affecting such Member or any of such Member's properties, assets, or
businesses in any court or before or by any governmental department, board,
agency, instrumentality, or arbitrator which, if adversely determined, could (or
in the case of an investigation could lead to any action, suit, or proceeding
which, if adversely determined, could) reasonably be expected to materially
impair such Member's ability to perform its obligations under this Agreement or
to have a material adverse effect on the financial condition of such Member.
10.2 Investment Representations. Each Member represents and warrants that
it has acquired its Interest for its own account as part of a transaction exempt
from registration under the Securities Act of 1933, as amended, and applicable
state law for investment purposes and not with a view to the resale or
distribution thereof, and that it has had access to any and all information
necessary to arrive at its decision to acquire its Interest. In addition to the
restrictions on transfer of Interests otherwise set forth in this Agreement, no
Interest may be sold, transferred, assigned or otherwise disposed of by any
Member in the absence of registration under the Securities Act of 1933, as
amended, and applicable state law, or an opinion of counsel experienced in
securities matters and satisfactory to the other Members that such assignment or
other disposition will not be in violation of said Act or state laws. No Member
shall have any right to require registration of its Interest under said
Securities Act or applicable state law and, in view of the nature of the Company
and its business, such registration is neither contemplated nor likely. Each
Member further acknowledges that it understands that the effect of the foregoing
representation and warranty and restriction on assignment or other disposition
is generally to require that such Interest be held indefinitely unless it is
registered or an exemption from registration is available.
SECTION 11
PARTICIPATION AND NONSOLICITATION
11.1 Right to Participate. MOS agrees that neither it nor any of its
Affiliates will open any directly owned facilities within two hundred (200)
miles of an existing JWE operation without first providing JWE the opportunity
to join the venture under the terms of this Agreement. Any operations related to
the PIECO and Heritage Marketing are excluded from the above provision.
11.2 Nonsolicitation. JWE agrees to enter into employee non-solicitation
covenants with the Company and MOS and its Affiliates when entering into an
Option Agreement, of even date herewith, with JWE ENTERPRISES, a Florida
corporation, MOS, and Xxxxx X. Xxxxxxxxx with an address at X.X. Xxx 0000, Xxxx,
XX 00000 (the "Option Agreement").
SECTION 12
MISCELLANEOUS
12.1 Notices. All notices, approvals, consents, requests, instructions,
and other communications (collectively "Communications") required to be given in
writing pursuant to this Agreement shall be validly given, made or served only
when delivered personally or by registered or certified mail, return receipt
requested, postage prepaid, or by a reputable overnight or same day courier,
addressed to the Company or the Member at the address that is on record at the
principal office of the Company. Any such Communication shall be treated as
given under this Agreement when the Communication is delivered to such address.
The designation of the Person to receive such Communication on behalf of a
Member or the address of any such Person for the purposes of such Communication
may be changed from time to time by written notice given to the Company pursuant
to this Section.
12.2 Successors. This Agreement shall inure to the benefit of and shall be
binding upon all of the parties and their respective heirs, successors and
assigns.
12.3 Applicable Law. This Agreement and the rights of the parties
hereunder shall be interpreted in accordance with the laws of the State of
Delaware.
12.4 Amendment. No change or modification to this Agreement shall be valid
unless the same be in writing and signed by all of the Members.
12.5 Entire Agreement. This Agreement contains the entire understanding
among the parties with respect to the subject matter hereof and supersedes any
prior written or oral understandings and agreements between them respecting the
subject matter hereof. There are no representations, agreements, arrangements,
or understandings, oral or written, between or among the parties hereto relating
to the subject matter of this Agreement which are not fully expressed herein.
12.6 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other Persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
12.7 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts with the same effect as if all of the Members had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
12.8 Construction. When from the context it appears appropriate, each term
stated either in the singular or the plural shall include the singular and the
plural and pronouns stated either in the masculine, the feminine or the neuter
shall include the masculine, the feminine and the neuter.
12.9 Headings and Captions. The headings and captions contained in this
Agreement are inserted only as a matter of convenience and in no way define,
limit or extend the scope or intent of this Agreement or any provisions hereof.
12.10 No Waiver. The failure of any Member to insist upon strict
performance of a covenant hereunder or of any obligation hereunder or to
exercise any right or remedy hereunder, regardless of how long such failure
shall continue, shall not be a waiver of such Member's right to demand strict
compliance therewith in the future unless such waiver is in writing and signed
by the Member giving the same.
12.11 Other Business and Investment Ventures. Except as otherwise provided
in this Agreement, each Member may engage in other business or investment
ventures, including business or investment ventures in competition with the
Company, and neither the Company nor the other Members shall have any rights in
such business or investment ventures.
12.12 Arbitration. All claims, demands, disputes, controversies,
differences, or misunderstandings among or between the parties hereto arising
out of, or by virtue of, this Agreement (collectively, referred to as
"Disputes") shall first be negotiated by the parties hereto who are participants
in the Dispute (the "Parties"), and, if an acceptable resolution does not
result, shall then be submitted to and determined by arbitration in accordance
with this Section
12.12. In the event of such a Dispute, which cannot be first resolved among or
between the Parties, the Parties shall together select one arbitrator who is
neutral and unbiased. If the Parties are unable to agree upon the arbitrator,
the American Arbitration Association ("AAA") shall be designated by any party to
appoint such arbitrator to arbitrate the matter in accordance with this Section
12.12. The matter shall be arbitrated under the applicable rules of the AAA,
such arbitration to be held in Chicago, Illinois. At any time before a decision
of the arbitration panel has been rendered, the parties may resolve the Dispute
by settlement. The Company shall bear the initial fees and expenses of the
Parties' counsels, witnesses and the arbitrator selected by the Parties or
appointed by the AAA. The prevailing Party/ies shall be entitled to
reimbursement from the other Party/ies for one-half of the prevailing
Party's/ies' total fees and expenses (including, without limitation, fees and
expenses of attorneys, witnesses and the arbitrator). The decision of the
arbitrator shall be made in writing setting forth the award, the reasons for the
decision and award; shall be binding and conclusive on all Parties; and shall
not be appealable. Judgment of a court of competent jurisdiction may be entered
upon the award and may be enforced as such in accordance with the provisions of
the award. This agreement to arbitrate is specifically enforceable by the
parties to this Agreement.
12.13 Additional Instruments. Each Member agrees to execute and deliver
such additional agreements, certificates, and other documents as may be
necessary or appropriate to carry out the intent and purposes of this Agreement.
12.14 Additional Representation. Each Member represents and warrants that
it has received, read carefully and understands this Agreement and all exhibits
to this Agreement and has consulted its own attorneys, accountants and
investment advisors with respect to the agreements, representations, warranties,
acknowledgements, obligations, undertakings and investments contemplated hereby
and thereby and their suitability for the Member and is not relying on the
attorneys, accountants and investment advisors of the other Member. Any specific
acknowledgment set forth in this Agreement or any of the exhibits hereto with
respect to any statement contained in this Agreement or any exhibits hereto
shall not be deemed to limit the generality of this representation and warranty.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MEMBERS:
MEDIA OUTSOURCING, INC.
By:
--------------------------------------
Name:
Title:
JWE HOLDINGS, INC.
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
J. Cross Marketing, LLC
Limited Liability Company Agreement
Exhibit A
PROJECTIONS
J. Cross Marketing, LLC
Limited Liability Company Agreement
Exhibit B
FULFILLMENT SERVICE AGREEMENT
AGREEMENT made as of June 8, 2001 (the "Agreement Date"),
by and between Media Outsourcing, Inc., a Delaware corporation ("MOS"), and J
CROSS MARKETING, LLC, a Delaware limited liability company ("JXM").
BACKGROUND
WHEREAS, JXM is engaged in the business of operating a teleservices
business to sell magazine subscriptions (the "Business").
WHEREAS, JXM desires to engage MOS to provide certain services required by
JXM's Business, and MOS is willing to provide such services, all upon the terms
contained herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound, the parties agree as
follows:
1. SERVICES TO BE PROVIDED BY MOS
1.1 MOS's obligations to JXM hereunder shall be limited to the
following:
(a) verifying with subscribers their placement of
subscription orders;
(b) collection activities in accordance with the collection
procedures established by MOS from time to time;
(c) entering subscription orders with the appropriate
publisher;
(d) providing customer care through MOS operators
(employees and/or contractors of MOS) answering
telephone calls received at a toll free telephone
number dedicated solely to providing such customer care
(which customer care shall include, without limitation,
correcting subscriber addresses and maintaining a
continuing relationship with subscribers);
(e) delivery to new subscribers of "Welcome Letters"
addressed to JXM's customers and prepared by JXM;
(f) processing service complaints related to untimely
delivery or non-delivery of subscription orders;
(g) making substitutions as directed by JXM;
(h) processing cancellations as directed by JXM;
(i) on request, checking for duplicate subscription orders;
(j) processing subscriber payments and refunds as more
fully set forth below;
(k) notifying publishers of changes of address submitted by
JXM; and
(l) such other aspects of the conduct of JXM's Business as
agreed upon by MOS and JXM expressly in writing.
1.3 MOS shall be deemed to have accepted a subscription order
submitted by JXM unless MOS rejects such order by written notice to JXM within
fifteen (15) business days after submission. MOS, however, reserves the
unqualified right to refuse to process an order, in which event, such order
shall not be cleared through any other clearing source.
1.4 MOS reserves the unqualified right to terminate any previously
processed order when MOS shall, in its sole judgment, deem it necessary to
adequately resolve a complaint registered by a consumer with a publisher,
consumer affairs agency, U.S. or non-U.S., international, Federal, state or
local government or any agency thereof.
1.5 Upon notification to MOS by JXM that an order is to be
cancelled, MOS shall cancel such order with the appropriate publisher in
accordance with its standard cancellation procedures. JXM shall be entitled to a
credit for such cancellation as mutually determined by MOS and JXM.
1.6 Using a merchant bank account of JXM (the "Bank Account"), MOS
shall debit the accounts of subscribers for their scheduled and early payments
to JXM ("Subscriber Payments") and deposit the Subscriber Payments into the Bank
Account. MOS shall be signatory on and for, and shall control, the Bank Account.
MOS shall use MOS's currently existing credit card merchant account to process
payments. MOS shall not commingle in the Bank Account any other funds with the
Subscriber Payments. On a weekly basis, MOS shall prepare a report that
reconciles the status of all outstanding receivables and events of the previous
week. All payroll, refunds, lead expenses, publisher remits, taxes, rent,
equipment leases and other expenses to be determined (collectively, referred to
as "Expenses") will be paid by MOS out of the Bank Account. MOS shall not be
liable in any manner for Expenses which exceed the available balance of the Bank
Account. MOS shall transfer a minimum of $1,200 (One Thousand Two Hundred
Dollars) per week from the Bank Account to a local Montana bank account chosen
by MOS to cover miscellaneous local expenses (the "Xxxxx Cash Account"). Xxxxx
X. Xxxxxxxxx, an individual with an address of X.X. Xxx 0000, Xxxx, XX 00000,
shall be the signatory on and for the Xxxxx Cash Account, whose funds he shall
utilize for proper and lawful business purposes only and in furtherance of this
Agreement.
2. JXM'S OBLIGATIONS.
2.1 JXM shall prepare a customer "Welcome Letter," including a
customer agreement, which MOS shall deliver to new subscribers.
2.2 JXM shall assume and agree to perform all obligations and
undertakings properly made by MOS for and on JXM's behalf pursuant to this
Agreement.
2.3 JXM shall cooperate with MOS in the performance of MOS's
obligations under this Agreement and shall make available to MOS all books,
records and other information which MOS may request.
2.4 JXM shall not take or fail to take any action which would
adversely affect the performance of MOS's s obligations hereunder.
3. ACKNOWLEDGMENTS, AGREEMENTS AND AFFIRMATIVE COVENANTS
3.1 JXM acknowledges, agrees and covenants that MOS shall only be
required to verify, process, clear, collect and care for orders solicited in
conformity with the applicable present or future standards, policies, rules and
regulations of MOS, and the publishers represented by MOS, the United States
Post Office Department, the Audit Bureau of Circulations, the Federal Trade
Commission, the Federal Communication Commission, U.S and non-U.S.,
international, Federal, state, or municipal laws or court or administrative
orders or rulings affecting such sale and servicing of subscription orders
(collectively, referred to as "Rules").
3.2 JXM acknowledges, agrees and covenants that all of JXM's
authorized actions and the authorized actions of its representatives will be in
conformity with the Rules (including, without limitation, JXM's submission to
MOS of information in the format(s) prescribed under the Rules).
3.3 JXM acknowledges, agrees and covenants that JXM will submit to
MOS subscription orders for only those magazines which JXM is authorized by a
publisher to sell.
3.4 JXM acknowledges, agress and covenants that it promptly shall
inform MOS of any restrictions that exist with respect to its ability to sell
any magazine.
3.5 JXM acknowledges, agrees and covenants that it solely shall be
liable for any costs in excess of the publisher remit rates which may be
assessed by publisher as a result of JXM's failure to adhere to said publisher's
stated sales policy.
3.6 JXM agrees to assume responsibility for all costs and
fulfillment to subscribers arising from the suspension or discontinuance of any
publication.
3.7 JXM acknowledges and agrees that MOS' performance of its
obligations hereunder is conditioned upon JXM's compliance with all agreements,
acknowledgements and covenants under this Agreement.
3.8 JXM acknowledges and agrees that MOS makes no representations,
warranties or guarantees of any kind concerning the continued existence of any
magazine offered or with respect to the delivery of any subscription by
publishers to JXM or to subscribers.
3.9 JXM acknowledges and agrees that, without MOS's express written
consent, it does not have the right, nor is it authorized, to use any of the MOS
or MOS affiliates' trade names or trademarks (other than JXM's own trade name
and trademarks and the trade names and trademarks of JXM's subsidiaries) or
those of its authorized dealers or independent sellers for any purpose
whatsoever.
3.10 JXM acknowledges and agrees that MOS may upsell to any and all
of JXM's customers (with income from such upselling, if any, credited to JXM)
and that any and all of JXM's customers will be subject to MOS's standard
upsell, special promotion and reclamation procedures as determined by MOS from
time to time.
3.11 JXM agrees to indemnify and reimburse immediately and to
hold MOS completely harmless from any and all legal fees, expenses, costs,
losses, debts, liabilities, suits or claims incurred by MOS directly or
indirectly because of, or directly or indirectly as a result of, a breach of
this Agreement by JXM or agents or employees of JXM, or in any way arising
out of a violation or alleged violation by JXM or agents or employees of JXM,
of Regulation Z (Truth-in-Lending Act), the F.T.C.'s Telemarketing Sales
Rule, the Telephone Consumer Protection Act, any U.S. or non-U.S.,
international, Federal, state or local law or regulation, any U.S. or
non-U.S., international, Federal, state or local law or regulation, court or
administrative order, any agreement with the Federal Trade Commission
(F.T.C.) or other U.S. or non-U.S., international, Federal, state, or local
agency, any agreement with or directive of any publisher, or for any other
acts, commissions or omissions of JXM or agents or employees of JXM.
3.12 JXM agrees to maintain adequate records so that there will
always be available for use by MOS or its agents an accurate tabulation of the
sales made and collections made and due, or to become due on each individual
subscriber's account sold by JXM and to maintain all records set forth in #310.5
of the FTC's Telemarketing Sales Rule.
3.13 JXM acknowledges and agrees that MOS has and shall have such
powers and authority which are necessary to enable MOS to discharge its
obligations hereunder.
3.14 JXM acknowledges and agrees that, except as provided herein and
except as JXM and MOS shall otherwise agree in writing, MOS shall not be
required to advance any funds or obligate itself in any manner to third parties
for or on behalf of JXM.
4. COMPENSATION AND EXPENSES.
4.1 In addition to any other sums which JXM is required to pay to
MOS, JXM shall pay to MOS a $7.50 (Seven Dollar and Fifty Cent) service fee per
subscription order which MOS verifies ("Verification Fee"). JXM shall pay to MOS
such Verification Fee on or by the thirtieth (30th) calendar day following the
last calendar day of the calendar month in which the subscription order was
verified.
4.2 In addition to any other sums which JXM is required to pay to
MOS, on a monthly basis, JXM shall pay to MOS a $2.75 (Two Dollar and Seventy
Five Cent) fee per subscription order which is reflected in JXM's computer
database, which has aged at least thirty (30) calendar days and for which
payment has been made within the sixty (60) day period immediately prior to such
monthly date on which JXM shall pay MOS.
4.3 In addition to the compensation payable to MOS hereunder, JXM
shall reimburse MOS promptly for certain reasonable out-of-pocket expenses
incurred by MOS in the performance of its duties hereunder, provided that prior
to reimbursement, JXM may request an itemized written account and documentation.
The types of such reimbursable expenses shall be as agreed upon by MOS and JXM,
but shall include, without limitation, premiums, sweepstakes prizes and the
costs to MOS of printing, and postage for delivery, of "Welcome Letters."
5. TERM OF AGREEMENT - TERMINATION RIGHTS.
5.1 This Agreement shall continue for a two-year term beginning on
the date hereof and shall automatically renew for successive one-year terms
unless MOS and JXM mutually agree to terminate this Agreement in writing;
provided however that this Agreement shall automatically terminate upon MOS's
purchase of the entire capital stock ("Stock") of JWE Holdings, Inc., a Delaware
corporation, pursuant to MOS's exercise of an option to purchase the Stock from
JWE Enterprises, Inc., a Florida corporation, pursuant to an Option Agreement
dated the date hereof (the "Exercise").
5.2 For a period of thirty (30) calendar days after the termination
of this Agreement, MOS and JXM shall continue performance of their respective
obligations under the Agreement with regard to any subscription orders
outstanding upon the termination date, even though such performance extends
beyond the termination date, but only so long as there are monies due and owing
between the parties, and any unapplied credits shall be applied against the
balance due MOS from JXM.
5.3 MOS shall have the right to terminate this Agreement immediately
upon notice to JXM at any time after the occurrence of any default as described
herein below. Upon termination pursuant to any event of default, all monies
owing to MOS hereunder shall become immediately due and payable to MOS from JXM.
The following shall constitute a default by JXM:
(a) JXM's failure to make any payment due MOS as set forth in
this Agreement and failure to make such payment within ten (10) calendar days
after notice of such failure has been given by MOS.
(b) the filing of a Voluntary Petition in Bankruptcy by JXM,
or the filing of an Involuntary Petition in Bankruptcy against JXM that is not
dismissed within thirty (30) calendar days thereafter, or JXM becoming
insolvent, or the JXM's making an assignment for the benefit of creditors, or
the JXM being adjudicated a bankrupt;
(c) JXM's failure to preserve the confidentiality of the
information provided to it by MOS; and
(d) JXM's failure to comply with any covenant, condition or
other obligation under this Agreement within ten (10) calendar days after MOS
notifies JXM of JXM's failure to comply.
6. ADDITIONAL TERMS AND PROVISIONS.
6.1 All notices, requests, demands, consents, waivers, and other
communications required or permitted under this Agreement must be in writing and
shall be deemed to have been given (i) upon delivery to the appropriate
addresses, if delivered personally, or (ii) two days after the date mailed to
the appropriate addresses stated below, if mailed by first class certified mail,
registered mail, or express mail, in each case with postage prepaid and return
receipt requested, or (iii) one day after the date sent to the appropriate
addresses, if sent by a nationally recognized overnight delivery or courier
service, with delivery charges prepaid and proof of delivery or receipt
requested, or (iv) on the date sent to the appropriate addresses or fax numbers,
if sent by prepaid telegram, e-mail, or fax, provided that a copy is sent within
24 hours thereafter by one of the other methods of giving notices permitted
under this Section. The addresses, e-mail addresses, and fax numbers of the
parties for purposes of this Section are set forth below. Any party may change
its addresses, e-mail addresses, or fax numbers for purposes of this Section by
giving notice of such change to all other parties in the manner permitted under
this Section.
If notice is to be sent to MOS:
c/o Cross Media Marketing Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
If notice is to be sent to JXM:
000 Xxxxx Xxxxxxx 00
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
and
c/o Cross Media Marketing Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
6.2 Any headings used herein are solely for convenience of reference
and shall not constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
6.3 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. No party may assign, sell or transfer, in whole or in part, any of its
rights or obligations hereunder without the written consent of the other party;
provided, however, that a change of control of MOS's parent shall not be deemed
an assignment.
6.4 This Agreement may not be modified, varied, supplemented or
amended in any respect except in a writing executed by all parties hereto.
6.5 Any waiver by MOS of strict compliance with or performance of
any of the terms of this Agreement, or of any breach hereof by JXM, shall not be
deemed to constitute a waiver of any subsequent failure or breach of any nature.
6.6 This Agreement alone expresses the entire agreement and
understanding between the parties with respect to the subject matter hereof and
all prior agreements or understandings relating to the subject matter hereof are
hereby superseded and cancelled.
6.7 This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
wholly performed within that state.
6.8 All claims, demands, disputes, controversies, differences, or
misunderstandings among or between the parties hereto arising out of, or by
virtue of, this Agreement (collectively, referred to as "Disputes") shall first
be negotiated by the parties hereto (the "Parties"), and, if an acceptable
resolution does not result, shall then be submitted to and determined by
arbitration in accordance with this Section 6.8. In the event of such a Dispute,
which cannot be first resolved among or between the Parties, the Parties shall
together select one arbitrator who is neutral and unbiased. If the Parties are
unable to agree upon the arbitrator, the American Arbitration Association
("AAA") shall be designated by any party to appoint such arbitrator to arbitrate
the matter in accordance with this Section 6.8. The matter shall be arbitrated
under the applicable rules of the AAA, such arbitration to be held in Chicago,
Illinois. At any time before a decision of the arbitration panel has been
rendered, the parties may resolve the Dispute by settlement. JXM shall bear the
initial fees and expenses of the Parties' counsels, witnesses and the arbitrator
selected by the Parties or appointed by the AAA. The prevailing Party shall be
entitled to reimbursement from the other Party for one-half (1/2) of the
prevailing Party's total fees and expenses (including, without limitation, fees
and expenses of attorneys, witnesses and the arbitrator). The decision of the
arbitrator shall be made in writing setting forth the award, the reasons for the
decision and award; shall be binding and conclusive on all Parties; and shall
not be appealable. Judgment of a court of competent jurisdiction may be entered
upon the award and may be enforced as such in accordance with the provisions of
the award. This agreement to arbitrate is specifically enforceable by the
parties to this Agreement.
6.9 No party shall have any rights or interests under this Agreement
except the parties to this Agreement.
6.10 This Agreement may be executed in any number of counterparts
and by either party hereto on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Agreement Date.
MEDIA OUTSOURCING, INC.
By:
--------------------------------------
Name:
Title:
J. CROSS MARKETING, LLC,
by its Members:
JWE holdings, Inc.
By:
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
MEDIA OUTSOURCING, INC.
By:
--------------------------------------
Name:
Title:
J. Cross Marketing, LLC
Limited Liability Company Agreement
Exhibit C
MANAGEMENT SUPPORT SERVICES AGREEMENT
AGREEMENT made as of June 8, 2001 (the "Agreement Date"),
by and among JWE Enterprises, Inc., a Florida corporation ("Manager"), Xxxxx X.
Xxxxxxxxx, with an address of X.X. Xxx 0000, Xxxx, XX 00000 ("Xxxxxxxxx"), and
J. CROSS MARKETING, LLC, a Delaware limited liability company ("JXM").
BACKGROUND
WHEREAS, JXM is engaged in the business of operating a teleservices
business to sell magazine subscriptions (the "Business").
WHEREAS, JXM desires to engage Manager to provide certain management
support services and personnel required by JXM's Business, and Manager is
willing to provide such personnel and support services, all upon the terms
contained herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound, the parties agree as
follows:
1. MANAGEMENT SUPPORT SERVICES TO BE PROVIDED BY MANAGER
1.1. Manager will undertake to provide the following services and
personnel for JXM's Business:
(a) Supervise JXM's operational management and sales pursuant
to the dealer sales policies of Media Outsourcing, Inc., a Delaware corporation
("MOS"), as set forth in Exhibit "A" attached hereto and made a part hereof;
(b) Supervise JXM's administration, accounting, bookkeeping,
record-keeping and financial reporting functions and other reporting
obligations;
(c) The hiring, training, performance evaluation, discipline
and termination of personnel as reasonably necessary for JXM to carry out its
duties;
(d) Ordering of insurance necessary for JXM's Business;
(e) Services relating to personnel administration as agreed
upon by Manager and JXM; and
(f) Such other aspects of the conduct of JXM's Business as
agreed upon by Manager and JXM.
1.2. Manager agrees that, in the performance of its duties and
obligations hereunder, it shall comply with any and all applicable U.S. and
non-U.S., international, Federal, state, provincial, territorial, local and
other laws and regulations governing telemarketing activities.
1.3. Manager may perform any services which it is authorized or
obligated to perform hereunder off of JXM's premises.
1.4. JXM hereby grants to Manager such powers and authority which
are reasonably necessary to enable Manager to discharge its obligations
hereunder.
1.5. JXM and its Members shall in all respects retain all power and
authority with respect to the overall operation of and long-term planning for
JXM's Business, and all decisions by Manager pursuant to its authority under
this Agreement are subject to review by JXM's Members.
1.6. Manager shall not be required to advance any funds or obligate
itself in any manner to third parties for or on behalf of JXM except as JXM and
Manager shall otherwise agree in writing.
2. JXM'S OBLIGATIONS.
2.1. JXM shall assume and agree to perform all obligations and
undertakings properly made by Manager for and on JXM's behalf pursuant to this
Agreement.
2.2. JXM shall cooperate with Manager in the performance of
Manager's obligations under this Agreement and shall make available to Manager
all books, records and other information which Manager may request.
2.3. JXM shall not take or fail to take any action which would
adversely affect the performance of Manager' s obligations hereunder.
3. COMPENSATION AND EXPENSES.
3.1. On a monthly basis, JXM shall send to its members and to
Manager a general ledger and/or an unconsolidated statement of cash flows
prepared by MOS based on information which shall be provided by JXM to MOS and
prepared in accordance with GAAP showing JXM's cash flows for each month of
JXM's operation. In consideration of the services rendered by Manager hereunder,
beginning on the third (3rd) business day of the first (1st) calendar month
immediately following the determination, based on such general ledger or
statement of cash flows, that JXM has achieved positive net cash flow, JXM shall
pay to Manager an annual fee of $100,000 (One Hundred Thousand Dollars), payable
in installments of $8,500 (Eight Thousand Five Hundred Dollars) on the third
(3rd) business day of every calendar month. However, if it is determined (in
accordance with this Section 3.1) that JXM has failed to achieve positive net
cash flow for two (2) consecutive calendar months, then any and all payments of
such installments shall cease as of, and for, the third (3rd) business day of
the first (1st) calendar month immediately following such two (2)-month period
and shall remain discontinued until the third (3rd) business day of the first
(1st) calendar month immediately following a period of two (2) consecutive
calendar months for which it is determined (in accordance with this Section 3.1)
that JXM has achieved positive net cash flow on a monthly basis. Manager
reserves the right to inspect JXM's general ledgers and statements of cash flows
at least once every month in a reasonable manner and at reasonable times and to
object to any failure to determine that JXM has achieved positive net cash flow.
3.2. In addition to the compensation payable to Manager hereunder,
JXM shall reimburse Manager for certain reasonable out-of-pocket expenses
incurred by Manager in the performance of its duties hereunder, provided that
prior to reimbursement, JXM may request an itemized written account and
documentation. The types of such reimbursable expenses shall be as agreed upon
by Manager and JXM.
4. TERM OF AGREEMENT - TERMINATION RIGHTS.
This Agreement shall continue for a two-year term beginning on the date
hereof and shall automatically renew for successive one-year terms unless
Manager, Xxxxxxxxx or JXM notifies the other parties, in writing, that it wishes
to terminate this Agreement; provided however that this Agreement shall
automatically terminate upon MOS's purchase of the entire capital stock
("Stock") of JWE Holdings, Inc., a Delaware corporation, pursuant to MOS's
exercise of an option to purchase the Stock from Manager pursuant to an Option
Agreement dated the date hereof. Upon the consummation of such purchase of the
Stock (the "Stock Purchase"), Xxxxxxxxx shall have the right to enter into a
commercially reasonable consulting agreement with terms similar to those of this
Agreement. Such consulting agreement, if any, shall require that, if within the
one (1) year term, JXM requests that Xxxxxxxxx conduct any work on JXM's
premises, then JXM shall compensate Xxxxxxxxx in the amount of $2,500 (Two
Thousand Five Hundred Dollars) per day for a minimum of four (4) days.
5. RESTRICTIVE COVENANTS.
5.1 Certain Definitions.
(a) "Affiliate" shall mean, as to any person, any other person
that, directly or indirectly, is in control of, is controlled by or is under
common control with such person. For purposes of this definition, control of a
person shall mean the power, directly or indirectly, to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities, by contract or otherwise.
(b) "Business Associates" include all persons and entities
which have had in the past, have currently, or shall have during the Restriction
Period, a business relationship with any of the Companies (defined below), or
with which any of the Companies (defined below) shall be attempting during the
Restriction Period to develop a business relationship, including, without
limitation, as a publisher, investor, lender, borrower, guarantor, surety,
landlord, tenant, lessor, lessee, source of resources, vendor, supplier, source
of Customer referral, third party payor or other business contact of any kind.
(c) "Companies" means, collectively, (i) MOS, (ii) JXM, (iii)
Cross Media Marketing Corporation, a Delaware corporation ("XMM"), (iv) JWE
Holdings, Inc., a Delaware corporation ("JWE"), and (v) any and all
Subsidiaries.
(d) "Competitor" includes any person or entity which is
involved, directly or indirectly, in the sale of products or services
substitutable for or otherwise competitive with any products or services sold by
any of the Companies in any county in which any of the Companies has one or more
Customers.
(e) "Confidential Information" includes all information which
is not generally known or available to the public or a Competitor (whether or
not in written or tangible form) and the knowledge of which could benefit a
Competitor, including, without limitation, all of the following types of
information: (i) identities of, and other information pertaining to, Customers,
Personnel and Business Associates, including, without limitation, publishers,
lead sources, customer lists and data (including, without limitation, customer
names, telephone and fax numbers, e-mail addresses, surface mailing addresses,
other contact information, purchasing histories and credit histories),
experiences with any of the Companies, terms of oral or written contracts or
understandings with a party hereto or third parties, the content of any lead
files or other files, correspondence, invoices and other records; (ii)
projections, financial information, cost and pricing information and internal
accounting statistics; (iii) information concerning products or services,
research and development efforts (whether for new products or concepts or
enhancements or improvements) and any other discoveries, inventions,
innovations, techniques, procedures and the like (including, without limitation,
sales scripts and the use of automatic dialers); (iv) agreements, arrangements
and relations with publishers; and (v) any other trade secrets.
(f) "Confidential Materials" include documents,
correspondence, memoranda, records, notes, plans, reports, materials, programs,
recordings, magnetic media, software, disks, diskettes, charts, manuals,
materials and all other media (including, without limitation, copies or
reproductions of any of the foregoing) in which any Confidential Information may
be contained or from which it may be readily derived.
(g) "Customers" include all past, present, prospective or
potential customers of any of the Companies (including, without limitation,
customers of a Competitor). Prospective and potential customers include all
persons and entities with whom or which any of the Companies or their respective
representatives have had any business solicitations, dealings, negotiations or
similar interaction likely or intended to result in such persons or entities
becoming a purchaser of products or services sold by any of the Companies.
(h) "Personnel" includes all employees, contractors, agents,
brokers, consultants or other persons or entities rendering services to any of
the Companies for compensation in any form, whether employed by or independent
of any of the Companies.
(i) "Restriction Period" shall mean the period of time from
the date hereof until three (3) years after the date of termination of this
Agreement; provided, however, that if a person bound by this Section 5 violates
any covenant contained in this Section 5 and if MOS, JWE, XMM or JXM institutes
action for
equitable relief, MOS, JWE, XMM or JXM shall not be deprived of the benefit of
the full Restriction Period as a result of the time involved in obtaining such
relief and, accordingly, such Restriction Period shall be deemed to include in
addition the three (3)-year period commencing on the date on which relief is
granted.
(j) "Subsidiary" means any corporation, partnership, limited
liability company, association, joint stock company, trust, joint venture,
unincorporated organization or other business entity in which MOS, JXM, XMM or
JWE directly or indirectly (including through any one or more Subsidiaries),
owns, holds or controls a majority of either (i) the total voting power of
shares of stock or other interests entitled (and not subject to any condition
beyond its direct or indirect control) to vote in the election of directors,
managers, trustees or other persons serving in a similar capacity or (ii) the
ownership or equity interests without regard to voting (which, for purposes of
defining a "Subsidiary" would include interests in a partnership, limited
liability company, association or other business entity to which a majority of
such entity's gains or losses would be allocated).
5.2 Covenant Not to Interfere. During the Restriction Period,
Manager Xxxxxxxxx, and each of their Affiliates shall not, directly or
indirectly, solicit, induce or influence, or attempt to solicit, induce or
influence, any Customer, Personnel or Business Associate to terminate a
relationship which has been formed or is being formed, or otherwise divert from
any of the Companies the business of, or other benefit of a relationship with,
any Customer, Personnel or Business Associate, or to discontinue, reduce the
extent of, discourage the development of or otherwise harm its relationship with
any of the Companies, including, without limitation, to commence or increase its
relationship with any Competitor.
5.3 Confidential Information. During the Restriction Period and
thereafter, Manager, Xxxxxxxxx and each of their Affiliates shall maintain in
strict confidence and duly safeguard to the best of its and his ability any and
all Confidential Information, and it and he shall not, directly or indirectly,
disclose or divulge to anyone or use or otherwise exploit for the benefit of
anyone, other than the Companies, any Confidential Information. All Confidential
Materials are and shall remain the exclusive property of their respective owner,
subject to return to the respective owner at any time upon demand by the Board
of Directors, executive officers or members (acting unanimously) of such owner.
No Confidential Materials may be entrusted to anyone, other than the Personnel
entitled to such materials by authorization of the applicable Board, officer or
members, without prior written permission from the applicable Board, officer or
members.
5.4 Activities for JXM. The covenants set forth in this Section 5
shall not apply to the extent that such actions or omissions are expressly
approved by the unanimous consent of the Members of JXM in writing.
5.5 Restrictions on Sale Activities. Notwithstanding anything to the
contrary, Manager, Xxxxxxxxx and each of their Affiliates may sell, license,
sub-license or market on behalf of JXM only those items, goods and services
expressly authorized by MOS, and only in the manner expressly authorized by MOS,
including, without limitation, names, addresses, e-mail addresses, telephone
numbers and/or fax numbers of potential customers, leads, files or customer
lists (collectively, referred to as "Lead/Customer Information"). Manager and
Xxxxxxxxx acknowledge and agree that not only may Lead/Customer Information be
Confidential Information, but also the sale, license, sub-license or marketing
of Lead/Customer Information without MOS' express authorization or outside of
the scope of MOS' express authorization, whether or not Confidential
Information, shall constitute a material breach of this Agreement.
5.6 Reasonableness of Covenants. The parties acknowledge and agree
that the covenants set forth in this Section 5 are necessary for the protection
of the legitimate interests of the Companies. Xxxxxxxxx represents and warrants
that such covenants are not intended to, and if specifically enforced would not,
prevent him from earning a living that involves his training and skills.
Manager, Xxxxxxxxx and each of their Affiliates hereby acknowledges that the
execution of this Agreement by JXM constitutes fair and adequate consideration
for its and their compliance herewith, and it and they shall not be entitled to
any other payment or consideration for such compliance.
5.7 Defenses; Counterclaims. The obligations of Manager, Xxxxxxxxx
and each of their Affiliates under this Section 5 shall not be canceled, limited
(in type or scope or as to the remedies available for enforcement) or otherwise
affected in any manner by any claim or cause of action that it or they may have
against any of the Companies or any third party. No right to an equitable
accounting, the payment of any damages or other remedy available to any of the
Companies shall be subject to any counterclaim, set-off, recoupment or defense
of
any kind, and Manager, Xxxxxxxxx and each of their Affiliates unconditionally
and irrevocably waive any right it or they may have now or at any time to bring
or assert any such counterclaim, set-off, recoupment or defense. It is the
intention of the parties that the covenants set forth in this Section 5 be
enforced absolutely according to the terms hereof, and Manager, Xxxxxxxxx and
each of their Affiliates pursue any claims that it or they may have by
independent action.
5.8 Survival of Covenants. Notwithstanding anything herein to the
contrary, the representations, warranties and covenants set forth in this
Section 5 shall survive, to the extent set forth in this Section 5, the
termination of this Agreement for any reason whatsoever, unless terminated by a
written instrument that expressly terminates this Section 5 by specific
reference to this Section 5.
6. ADDITIONAL TERMS AND PROVISIONS.
6.1. All notices, requests, demands, consents, waivers, and other
communications required or permitted under this Agreement must be in writing and
shall be deemed to have been given (i) upon delivery to the appropriate
addresses, if delivered personally, or (ii) two days after the date mailed to
the appropriate addresses stated below, if mailed by first class certified mail,
registered mail, or express mail, in each case with postage prepaid and return
receipt requested, or (iii) one day after the date sent to the appropriate
addresses, if sent by a nationally recognized overnight delivery or courier
service, with delivery charges prepaid and proof of delivery or receipt
requested, or (iv) on the date sent to the appropriate addresses or fax numbers,
if sent by prepaid telegram, e-mail, or fax, provided that a copy is sent within
24 hours thereafter by one of the other methods of giving notices permitted
under this Section. The addresses, e-mail addresses, and fax numbers of the
parties for purposes of this Section are set forth below. Any party may change
its addresses, e-mail addresses, or fax numbers for purposes of this Section by
giving notice of such change to all other parties in the manner permitted under
this Section.
If notice is to be sent to Manager or to Xxxxxxxxx:
X.X. Xxx 0000
Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
If notice is to be sent to JXM:
c/o Cross Media Marketing Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
6.2 Any headings used herein are solely for convenience of reference
and shall not constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
6.3 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. No party may assign its rights or obligations hereunder without the
written consent of the other parties; provided, however, that a change of
control of MOS's parent shall not be deemed an assignment.
6.4 This Agreement may not be modified, varied, supplemented or
amended in any respect except in a writing executed by all parties hereto.
6.5 This Agreement alone expresses the entire agreement and
understanding between the parties with respect to the subject matter hereof and
all prior agreements or understandings relating to the subject matter hereof are
hereby superseded and cancelled.
6.6 This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
wholly performed within that state.
6.7 All claims, demands, disputes, controversies, differences, or
misunderstandings among or between the parties hereto arising out of, or by
virtue of, this Agreement (collectively, referred to as "Disputes") shall first
be negotiated by the parties hereto who are participants in the Dispute (the
"Parties"), and, if an acceptable resolution does not result, shall then be
submitted to and determined by arbitration in accordance with this Section 6.7.
In the event of such a Dispute, which cannot be first resolved among or between
the Parties, the Parties shall together select one arbitrator who is neutral and
unbiased. If the Parties are unable to agree upon the arbitrator, the American
Arbitration Association ("AAA") shall be designated by any party to appoint such
arbitrator to arbitrate the matter in accordance with this Section 6.7. The
matter shall be arbitrated under the applicable rules of the AAA, such
arbitration to be held in Chicago, Illinois. At any time before a decision of
the arbitration panel has been rendered, the parties may resolve the Dispute by
settlement. JXM shall bear the initial fees and expenses of the Parties'
counsels, witnesses and the arbitrator selected by the Parties or appointed by
the AAA. The prevailing Party/ies shall be entitled to reimbursement from the
other Party/ies for one-half of the prevailing Party's/ies' total fees and
expenses (including, without limitation, fees and expenses of attorneys,
witnesses and the arbitrator). The decision of the arbitrator shall be made in
writing setting forth the award, the reasons for the decision and award; shall
be binding and conclusive on all Parties; and shall not be appealable. Judgment
of a court of competent jurisdiction may be entered upon the award and may be
enforced as such in accordance with the provisions of the award. This agreement
to arbitrate is specifically enforceable by the parties to this Agreement.
6.8 No party shall have any rights or interests under this Agreement
except the parties to this Agreement.
6.9 Any waiver by JXM of strict compliance with or performance of
any of the terms of this Agreement, or of any breach hereof by Manager or
Xxxxxxxxx, shall not be deemed to constitute a waiver of any subsequent failure
or breach of any nature.
6.10 This Agreement may be executed in any number of counterparts
and by either party hereto on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Agreement Date.
JWE Enterprises, inc.
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title:
J. CROSS MARKETING, LLC,
By its Members:
MEDIA OUTSOURCING, INC.
By:
--------------------------------
Name:
Title:
JWE HOLDINGS, INC.
By:
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
WITH RESPECT TO SECTIONS 4, 5 AND 6 ONLY:
_________________________________________
Xxxxx X. Xxxxxxxxx, individually
Exhibit "A"
(a) MOS' POLICIES
J. Cross Marketing, LLC
Limited Liability Company Agreement
Exhibit D
LEASE AGREEMENT
