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EXHIBIT 10.8
August 16, 2000
Mr. James P. Jimirro
Chairman, President and Chief Executive Officer
J2 Communications
10850 Wilshire Blvd., Ste. 1000
Los Angeles, CA 90024
Dear Jim:
1) This Letter inclusive of Annex A ("Letter"), confirms our understanding that
J2 Communications, its subsidiaries, successors and assignees (the "Company")
has engaged Batchelder & Partners, Inc. ("B&P") to act as its non-exclusive
financial advisor with respect to certain shareholder matters. Specifically, we
shall provide strategic and financial advisory services concerning (i) the
proposed special shareholders meeting to remove and elect directors, and the
2001 annual shareholders meeting in the event that it involves any contested
matters, (ii) mergers and acquisitions, (iii) financings and (iv) other
consulting or advisory services as you may reasonably request. "You," as used
herein, shall refer to the Company.
2) Upon signing of this Letter, the Company shall pay us an aggregate retainer
fee of $300,000, payable one-half in cash ($150,000 in immediately available
funds) and one-half in shares of the Company's common stock that are (i) freely
tradable upon issuance, (ii) fully registered within thirty (30) days of
issuance, or (iii) in the event that the Company's board of directors concludes
that registering the shares is not practicable, accompanied by three (3) demand
registration rights and unlimited piggyback registration rights, having normal
provisions customarily associated with such rights and which are reasonably
acceptable to B&P; ("Shares"). The Company and B&P agree that the Company shall
issue 13,636 Shares in full satisfaction of the common share portion of the
retainer fee.
3) Further, the Company shall pay to B&P the following compensation:
a) A financing fee equal to three (3) percent of gross proceeds
from any debt or equity financings consummated after the date
hereof, payable in immediately available funds upon the closing
of the financing. Debt or equity financings include any third
party financing of any entity owned in part or whole by You or
any partnership, joint venture, limited liability company or
other affiliate to which You are a party.
b) Success fees payable as follows:
(i) $200,000 if after the date hereof the Company enters into an
agreement with Mr. Laikin, or
(ii) $200,000 if the Company completes a special election of
directors that is contested and the Company nominees are elected
to at least fifty (50) percent of the Company's board of
director seats, plus $100,000 (total $300,000) if the Company's
nominees are elected to more than fifty (50) percent of the
Company's board of director seats, and
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(iii) $200,000 if the slate of directors nominated by the
Company at the 2001 Annual Shareholders Meeting is contested and
the Company nominees are elected to at least fifty (50) percent
of the Company's board of director seats.
Success fees pursuant to this subparagraph 3(b) shall be payable
on the determination date, one-half in cash consisting of
immediately available funds and one-half in Shares based on a
per share value equal to the lesser of (y) $11 or (z)
eighty-five (85) percent of the average of the bid and ask
prices for the Company's common stock as quoted at the close on
its principal trading market for the thirty (30) days preceding
the determination date.
c) If the Company enters into a transaction, either directly of
indirectly and whether in a single transaction or series of
transactions, whereby it sells a majority of its assets, or
shareholders of the Company immediately prior to consummation of
the transaction cease to own at least fifty (50) percent of the
Company post transaction consummation (a "Transaction"), You
shall pay us a fee equal to 3.5 percent (.035) of Total
Transaction Value. "Total Transaction Value" shall mean the
aggregate Value (as hereinafter defined) of all cash, non-cash
assets, equity (including stock options, warrants or similar
rights to acquire stock) and debt issued or assumed in
connection with a Transaction and shall include, without
duplication, the Value of equity and debt securities of any
entity created as part of a process to effect a Transaction.
"Value" shall mean (i) with respect to cash, the amount thereof;
(ii) with respect to marketable securities, the mean of the
average of the bid and ask of such securities as quoted at the
close on their principal trading market on the tenth through the
sixth consecutive trading days preceding the date of closing of
the Transaction or, if not quoted on such dates, the mean of the
average of the bid and ask of such securities as quoted at the
close on their principal trading market on the last five (5)
consecutive trading days for which a bid/ask is so quoted prior
to closing or consummation of a Transaction; and (iii) with
respect to non-cash consideration other than marketable
securities; if debt, the face amount thereof, otherwise the fair
market value thereof as mutually agreed by the Company and B&P.
The Company shall receive a credit against any Transaction fee
due pursuant to this subparagraph, for any retainer fee actually
paid to B&P. Any Transaction fee pursuant to this subparagraph
shall be payable in cash by wire transfer of immediately
available funds on the date of closing or consummation of such
Transaction. In the event that a Transaction is not consummated
and the Company receives a topping fee, termination fee, break
fee or similar compensation (a "Break Fee"), the Company shall
promptly pay to B&P in cash, ten (10) percent of such Break Fee.
4) In the event that You pursue a merger, business combination, acquisition of
stock or assets, disposition, recapitalization, reorganization or any
transaction substantially similar to any of the foregoing (other than a
Transaction as defined in subparagraph 3(c) hereof), You agree to offer to
retain B&P as the Company's non-exclusive financial advisor with respect
thereto, on terms that are normal and customary in the circumstances as we may
mutually agree.
5) In addition to the foregoing compensation, You shall reimburse us (or cause
us to be reimbursed) for our reasonable out-of-pocket expenses, which shall
include the reasonable fees and disbursements of our counsel. We shall not incur
expenses in excess of $15,000 without your approval, which approval shall not be
unreasonably withheld.
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6) Since we will be acting on the Company's behalf, the Company is agreeing to
provide us with indemnification pursuant to Annex A attached hereto. Further,
nothing in this Letter is intended to create an agency or other fiduciary
relationship between the parties or any of their affiliates, directors,
officers, partners, agents or employees. The sole obligation of B&P hereunder
shall be the contractual obligations specifically created by this Letter. The
Company acknowledges and represents to B&P that the Company's executive officers
and directors have sufficient knowledge, experience and sophistication with
respect to shareholder matters, financial matters, the capital markets,
transactions such as mergers, acquisitions, dispositions, recapitalizations and
combinations to enable the Company to independently evaluate any recommendation
made by B&P with respect to such matters and to act knowledgeably with respect
thereto and that the Company is not relying exclusively on B&P or any of its
employees, partners, directors, officers or agents in determining the actions,
if any, to be taken by the Company with respect to such matters. The Company
further acknowledges that the final decision with respect to any action taken by
the Company pertaining to any matter under B&P's engagement shall be that of the
Company. Each of the Company and B&P acknowledge that it has been given an
opportunity to be represented by counsel in connection with this engagement. Any
rule of law or any legal decision that would require interpretation of any
claimed ambiguities in this Letter against the party that drafted it has no
application and is expressly waived.
7) Our services hereunder may be terminated by the Company or by B&P upon
written notice and, in any event, shall terminate on August 15, 2001. If the
Company elects to terminate, (i) any due but unpaid fees shall be paid and (ii)
any reimbursable expenses incurred before the date of termination shall be paid.
You expressly acknowledge that our services hereunder will have continuing value
to the Company, and therefore You agree that if our services are terminated
(other than by B&P) You will continue to be obligated to pay B&P to the same
extent as if our services had not been terminated (i) any unpaid retainer
amounts on the date specified in paragraph two (2) hereof and (ii) compensation
pursuant to paragraphs three (3) and four (4) hereof if within 12 months of such
termination any event specified in either of such paragraphs occurs. If B&P
elects to terminate, no further fees shall accrue, and due but unpaid retainer
amounts, fees and reimbursable expenses incurred before the date of termination
shall be paid. Notwithstanding the foregoing, the provisions of the preceding
paragraph shall survive any termination, whether by the Company, by B&P, as a
result of the passage of time or otherwise.
8) Except as required by law, any advice (written or oral) rendered by us
pursuant to this Letter may not be disclosed publicly without our prior written
consent, which consent shall not be unreasonably withheld.
9) This Letter shall be governed by and construed in accordance with the laws of
the State of California without regard to principles and conflicts of law.
10) Please confirm that the foregoing is in accordance with your understanding
by signing and returning the duplicate of this Letter attached hereto, which
shall thereupon constitute a binding agreement. This Letter represents our
entire agreement and supersedes any prior agreements and understandings between
the Company and B&P in connection with the engagement.
Very truly yours,
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BATCHELDER & PARTNERS, INC.
By: /s/Joel L. Reed
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Joel L. Reed
Confirmed:
COMPANY NAME
By: /s/James P. Jimirro
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Title: President
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Date: 08/22/00
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Annex A
In the event that Batchelder & Partners, Inc. ("B&P"), its affiliates,
or their respective directors, officers, partners, agents, or employees, or each
other person, if any, controlling B&P or any of its affiliates (individually or
collectively, "Indemnified Parties"), becomes involved in any capacity in any
action, proceeding or investigation brought by or against any person or entity,
including stockholders of the Company or any governmental or regulatory agency,
in connection with or as a result of either our engagement or any matter
referred to in this Letter, the Company will reimburse the Indemnified Parties
for their legal and other expenses as they are incurred (including the cost of
any investigation, preparation and retention of expert witnesses incurred in
connection therewith). The Company also will indemnify and hold the Indemnified
Parties harmless against any and all losses, claims, damages, liabilities and
expenses to any Indemnified Parties in connection with or as a result of either
our engagement or any matter referred to in this Letter, except to the extent
that any such loss, claim, damage, liability or expense is finally judicially
determined to have resulted primarily from the gross negligence or willful
misconduct of B&P in performing the services that are the subject of this
Letter. If for any reason the foregoing indemnification is unavailable to the
Indemnified Parties or insufficient to hold them harmless, then the Company
shall contribute to the amount paid or payable by the Indemnified Parties as a
result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect the relative economic interests of the Company and its
stockholders on the one hand and B&P on the other hand in the matters
contemplated by this Letter as well as the relative fault of the Company and B&P
with respect to such loss, claim, damage, liability or expense and any other
relevant equitable considerations and in no event shall the aggregate amount
paid by the Indemnified Parties exceed the fees received by B&P pursuant to this
engagement. The reimbursement, indemnity and contribution obligations of the
Company under this paragraph shall be in addition to any liability which the
Company may otherwise have, shall extend upon the same terms and conditions to
any affiliate of B&P and the partners, directors, agents, employees and
controlling persons (if any), as the case may be, of B&P and any such affiliate,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of the Company, B&P, any such affiliate and
any such person. The Company also agrees that neither B&P nor any of such
affiliates, partners, directors, agents, employees or controlling persons shall
have any liability to the Company or any person asserting claims on behalf of or
in right of the Company in connection with or as a result of either our
engagement or any matter referred to in this Letter except to the extent that
any losses, claims, damages, liabilities or expenses incurred by the Company is
finally judicially determined to have resulted primarily from the gross
negligence or willful misconduct of B&P in performing the services that are the
subject of this Letter. Prior to entering into any agreement or arrangement with
respect to, or effecting, any proposed sale, exchange, dividend or other
distribution or liquidation of all or a significant portion of its assets in one
or a series of transactions or any significant recapitalization or
reclassification of its outstanding securities that does not directly or
indirectly provide for the assumption of the obligations of the Company set
forth in this Annex A, the Company will notify B&P in writing thereof (if not
previously so notified) and, if requested by B&P, shall arrange in connection
therewith alternative means of providing for the obligations of the Company set
forth in this paragraph, including the assumption of such obligations by another
party, insurance, surety bonds or the creation of an escrow, in each case in an
amount and upon terms and conditions satisfactory to B&P. The Company hereby
consents to personal jurisdiction and service and venue in any appropriate court
in which any claim which is subject to this agreement is brought against any of
the Indemnified Parties. Any right to trial by jury with respect to any action
or proceeding arising in connection with or as a result of either our engagement
or any matter referred to in this Letter is hereby waived by the parties hereto.
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It is understood that, in connection with B&P's engagement, it may also
be engaged to act for the Company in one or more additional capacities, and that
the terms of the original engagement or any such additional engagement may be
embodied in one or more separate written agreements. The provisions of this
Annex A shall apply to the original engagement, any such additional engagement
and any modification of the original engagement or such additional engagement
and shall remain in full force and effect following the completion or
termination of B&P's engagement(s).
