EXHIBIT 10.1
PROMISSORY NOTE
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JANUARY 25, 2005
JERSEY CITY, NEW JERSEY $2,000,000
FOR VALUE RECEIVED, the undersigned, JAG MEDIA HOLDINGS, INC., a Nevada
corporation (the "Company"), promises to pay CORNELL CAPITAL PARTNERS, LP (the
"Holder") at 101 Hudson Street, Suite 3700, Jersey City, New Jersey 07302 or
other address as the Holder shall specify in writing, the principal sum of TWO
MILLION (U.S.) DOLLARS AND 00/100 ($2,000,000.00) and will be payable pursuant
to the following terms:
1. AMOUNT OF NOTE. The face amount of this Promissory Note (this "Note") and
interest on the amount from time to time outstanding at the rate of twelve
percent (12%) per annum shall be payable either out of the net proceeds to be
received by the Company under that certain Equity Line Purchase Agreement (the
"Equity Line Purchase Agreement") dated as April 9, 2002, as amended on July 8,
2004 and July 21, 2004, between the Company and the Holder, or the Company shall
pay all amounts due under this Note in full within six hundred sixty-three (663)
calendar days of the date hereof, regardless of the availability of proceeds
under the Equity Line Purchase Agreement unless an extension is mutually agreed
to by the parties in writing. The Company agrees to escrow thirty five (35)
requests for puts under the Equity Line Purchase Agreement in an amount not less
than SIXTY THOUSAND DOLLARS ($60,000) and one (1) request for a put under the
Equity Line Purchase Agreement in an amount not less than ONE HUNDRED EIGHTY-ONE
THOUSAND SIXTEEN DOLLARS AND NINETY-NINE CENTS ($181,016.99) (individually
referred to as a "Put Notice" collectively referred to as "Put Notices") as well
as reserve out of its authorized but unissued shares of Common Stock THREE
MILLION FIVE HUNDRED THOUSAND (3,500,000) shares of the Company's Common Stock
to be delivered under Section 2.2(a) of the Equity Line Purchase Agreement (the
"Reserved Shares"), which Reserved Shares may be resold by the Holder from time
to time pursuant to the Company's Registration Statement on Form SB-2
(Registration No. 333-118029) (the "SB-2 Registration Statement").
Notwithstanding the immediately preceding sentence, the use of the SB-2
Registration Statement may be temporarily suspended by the Company, pursuant to
Section 5.3 of the Equity Line Purchase Agreement. In the event of such
suspension, the Company shall promptly notify the Holder of such suspension and
the Holder agrees not to deliver any Put Notice during the period in which use
of the SB-2 Registration Statement has been suspended (the "Suspension Period").
The parties hereto agree that the aggregate dollar amount reflected in the Put
Notices that are not delivered during the Suspension Period (the "Suspension
Amount") will be added to the Put Notices delivered immediately after the
Suspension Period with the Suspension Amount allocated pro rata among Put
Notices representing two times the number of Put Notices that were not delivered
during the Suspension Period; provided, however, that the Suspension Amount
shall be allocated among not more than a total of ten (10) Put Notices. In the
event that during the life of this Note the proceeds from the sales of the
Reserved Shares are insufficient to repay all
amounts due hereunder the Company shall immediately reserve, pursuant to the
irrevocable transfer agent instructions dated the date hereof (the "Irrevocable
Transfer Agent Instructions") such additional number of shares of the Company's
common stock of which the proceeds of the sale of such which shall be sufficient
to repay all amounts due hereunder. The Put Notices will be held in escrow by
David Gonzalez, Esq., who shall release such requests to the Holder every
fourteen (14) calendar days commencing on August 5, 2005. The Holder may at its
sole discretion retain and apply the net proceeds of each advance (after
deducting any fees owed to the Holder under the terms of the Equity Line
Purchase Agreement) to the outstanding balance of this Note as existing from
time to time. Interest shall be payable upon the due date of this Note. If this
Note is not paid in full when due, the outstanding principal owed hereunder
shall be due and payable in full together with interest thereon for the period
after the due date of this Note until payment in full at the rate of fourteen
percent (14%) per annum or the highest permitted by applicable law, if lower.
During the term of this Note the Company shall have the option to repay the
amounts due hereunder in immediately available funds and withdraw any Put
Notices yet to be effected provided that each repayment is in an amount not less
than Twenty Five Thousand Dollars ($25,000). The Company shall have the right to
select the specific Put Notice or Put Notices against which the proceeds of any
such repayment shall be applied. In addition, the Company shall have the right,
at any time and from time to time, to accelerate the delivery of one or more Put
Notices and shall have the right to select the specific Put Notice to be so
accelerated.
2. WAIVER AND CONSENT. To the fullest extent permitted by law and except as
otherwise provided herein, the Company waives demand, presentment, protest,
notice of dishonor, suit against or joinder of any other person, and all other
requirements necessary to charge or hold the Company liable with respect to this
Note.
3. COSTS, INDEMNITIES AND EXPENSES. In the event of default as described herein,
the Company agrees to pay all reasonable fees and costs incurred by the Holder
in collecting or securing or attempting to collect or secure this Note,
including reasonable attorneys' fees and expenses, whether or not involving
litigation, collecting upon any judgments and/or appellate or bankruptcy
proceedings. The Company agrees to pay any documentary stamp taxes, or other
taxes which may now or hereafter apply to this Note or any payment made in
respect of this Note, other than taxes based on the revenue, income or assets of
the Holder, and the Company agrees to indemnify and hold the Holder harmless
from and against any liability, costs, attorneys' fees, penalties, interest or
expenses relating to any such taxes, as and when the same may be incurred.
4. EVENT OF DEFAULT. Upon an Event of Default (as defined below), the entire
principal balance and accrued interest outstanding under this Note, and all
other obligations of the Company under this Note, shall be immediately due and
payable without any action on the part of the Holder, and the Holder shall be
entitled to seek and institute any and all remedies available to it. No remedy
conferred under this Note upon the Holder is intended to be exclusive of any
other remedy available to the Holder, pursuant to the terms of this Note or
otherwise. No single or partial exercise by the Holder of any right, power or
remedy hereunder shall preclude any other or further exercise thereof. The
failure of the Holder to exercise any right or remedy under this Note or
otherwise, or delay in exercising such right or remedy, shall not operate as a
waiver thereof. An "Event of Default" shall be deemed to have occurred upon the
occurrence of any of the following: (i) the Company should fail for any reason
or for no reason to make payment of the outstanding principal balance plus
accrued interest pursuant to this Note within the time prescribed herein or the
Company fails to satisfy any other obligation or requirement of the Company
under this Note and/or the Irrevocable Transfer Agent Instructions; or (ii) any
proceedings under any bankruptcy laws of the United States of America or under
any insolvency, not disclosed to the Holder, reorganization, receivership,
readjustment of debt, dissolution, liquidation or any similar law or statute of
any jurisdiction now or hereinafter in effect (whether in law or at equity) is
filed by or against the Company or for all or any part of its property.
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5. MAXIMUM INTEREST RATE. In no event shall any agreed to or actual interest
charged, reserved or taken by the Holder as consideration for this Note exceed
the limits imposed by New Jersey law. In the event that the interest provisions
of this Note shall result at any time or for any reason in an effective rate of
interest that exceeds the maximum interest rate permitted by applicable law,
then without further agreement or notice the obligation to be fulfilled shall be
automatically reduced to such limit and all sums received by the Holder in
excess of those lawfully collectible as interest shall be applied against the
principal of this Note immediately upon the Holder's receipt thereof, with the
same force and effect as though the Company had specifically designated such
extra sums to be so applied to principal and the Holder had agreed to accept
such extra payment(s) as a premium-free prepayment or prepayments.
6. CANCELLATION OF NOTE. Upon the repayment by the Company of all of its
obligations hereunder to the Holder, including, without limitation, the face
amount of this Note, plus accrued but unpaid interest, the indebtedness
evidenced hereby shall be deemed canceled and paid in full. Except as otherwise
required by law or by the provisions of this Note, payments received by the
Holder hereunder shall be applied first against expenses and indemnities, next
against interest accrued on the portions of the Note being paid, and next in
reduction of the outstanding principal balance of this Note.
7. SEVERABILITY. If any provision of this Note is, for any reason, invalid or
unenforceable, the remaining provisions of this Note will nevertheless be valid
and enforceable and will remain in full force and effect. Any provision of this
Note that is held invalid or unenforceable by a court of competent jurisdiction
will be deemed modified to the extent necessary to make it valid and enforceable
and as so modified will remain in full force and effect.
8. AMENDMENT AND WAIVER. This Note may be amended, or any provision of this Note
may be waived, provided that any such amendment or waiver will be binding on a
party hereto only if such amendment or waiver is set forth in a writing executed
by the parties hereto. The waiver by either party hereto of a breach of any
provision of this Note shall not operate or be construed as a waiver of any
other breach.
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9. SUCCESSORS. Except as otherwise provided herein, this Note shall bind and
inure to the benefit of and be enforceable by the parties hereto and their
permitted successors and assigns.
10. ASSIGNMENT. This Note shall not be directly or indirectly assignable or
delegable by the Company. The Holder may assign this Note as long as such
assignment complies with federal and state securities laws.
11. NO STRICT CONSTRUCTION. The language used in this Note will be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction will be applied against either party.
12. FURTHER ASSURANCES. Each party hereto will execute all documents and take
such other actions as the other party may reasonably request in order to
consummate the transactions provided for herein and to accomplish the purposes
of this Note.
13. NOTICES, CONSENTS, ETC. Any notices, consents, waivers or other
communications required or permitted to be given under the terms hereof must be
in writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) trading day after deposit
with a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to Company: JAG Media Holdings, Inc.
6865 SW 18th Street - Suite B13
Boca Raton, FL 33433
Attention: Thomas J. Mazzarisi
Telephone: (866) 300-7410
Facsimile: (561) 892-0821
With Copy to: Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attention: W. Preston Tollinger, Esq.
Telephone: (212) 309-6915
Facsimile: (212) 309-6273
If to the Holder: Cornell Capital Partners, L.P.
101 Hudson Street, Suite 3700
Jersey City, NJ 07302
Attention: Mark A. Angelo
Telephone: (201) 985-8300
Facsimile: (201) 985-8266
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or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) trading days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
14. REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The Holder's
remedies provided in this Note shall be cumulative and in addition to all other
remedies available to the Holder under this Note, at law or in equity (including
a decree of specific performance and/or other injunctive relief), no remedy of
the Holder contained herein shall be deemed a waiver of compliance with the
provisions giving rise to such remedy and nothing herein shall limit the
Holder's right to pursue actual damages for any failure by the Company to comply
with the terms of this Note. Every right and remedy of the Holder under any
document executed in connection with this transaction may be exercised from time
to time and as often as may be deemed expedient by the Holder. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Holder and that the remedy at law for any such breach
may be inadequate. The Company therefore agrees that, in the event of any such
breach or threatened breach, the Holder shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, and specific
performance without the necessity of showing economic loss and without any bond
or other security being required.
15. GOVERNING LAW; JURISDICTION. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of New Jersey, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
Jersey or any other jurisdictions) that would cause the application of the laws
of any jurisdictions other than the State of New Jersey. The Company and the
Holder each hereby irrevocably submits to the exclusive jurisdiction of the
Superior Court of the State of New Jersey sitting in Hudson County, New Jersey
and the United States Federal District Court for the District of New Jersey
sitting in Newark, New Jersey, for the adjudication of any dispute hereunder or
in connection herewith or therewith, or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. The Company and the Holder each hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Note and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law.
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16. NO INCONSISTENT AGREEMENTS. None of the parties hereto will hereafter enter
into any agreement, which is inconsistent with the rights granted to each,
respectively, in this Note.
17. THIRD PARTIES. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or entity, other than the parties
to this Note and their respective permitted successor and assigns, any rights or
remedies under or by reason of this Note.
18. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR THE HOLDER TO LOAN TO THE
COMPANY THE MONIES HEREUNDER, THE COMPANY HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND
ALL OF THE OTHER DOCUMENTS ASSOCIATED WITH THIS TRANSACTION.
19. ENTIRE AGREEMENT. This Note (including the recitals hereto) and the
Irrevocable Transfer Agent Instructions set forth the entire understanding of
the parties with respect to the subject matter hereof, and shall not be modified
or affected by any offer, proposal, statement or representation, oral or
written, made by or for any party in connection with the negotiation of the
terms hereof, and may be modified only by instruments signed by all of the
parties hereto.
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IN WITNESS WHEREOF, this Note is executed by the undersigned as of the date
hereof.
JAG MEDIA HOLDINGS, INC.
By:
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Name: Thomas J. Mazzarisi
Title: Chairman of the Board and Chief
Executive Officer
The undersigned Investor hereby executes this Note to become a party hereto and
to confirm its agreement to the covenants related to it contained in this Note.
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By:
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Name: Mark A. Angelo
Title: President and Portfolio Manager
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