Exhibit 4.60
EXECUTION COPY
NON-COMPETITION, NON-SOLICITATION
AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made as of February 14, 2003
BETWEEN:
CANWEST GLOBAL COMMUNICATIONS CORP., a
corporation governed by the laws of Canada, and GLOBAL
COMMUNICATIONS LIMITED, a corporation governed by
the laws of Manitoba (collectively, the "COVENANTORS" and
individually, a "COVENANTOR")
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OSPREY MEDIA HOLDINGS INC., a corporation governed by the laws
of Ontario ("OSPREY")
WHEREAS pursuant to an agreement (the "PURCHASE AGREEMENT") dated as of
January 24, 2003 between Global Communications Limited, CanWest Global
Communications Corp. and Osprey, Osprey agreed to purchase and the Vendor agreed
to sell the Purchased Shares.
AND WHEREAS the obligations of Osprey under the Purchase Agreement are
subject to the condition that each Covenantor execute and deliver this
Non-competition, Non-solicitation and Confidentiality Agreement.
AND WHEREAS each Covenantor acknowledges that this Agreement is
necessary so that Osprey receives the full benefit of the goodwill of the
Companies and to permit the Companies to preserve that goodwill and,
accordingly, the Covenantors are willing to enter into this Agreement to ensure
that the goodwill of the Companies is not impaired by action of the Covenantors.
AND WHEREAS each Covenantor acknowledges that this Agreement is an
integral part of the transaction contemplated by the Purchase Agreement under
which the Covenantors are receiving, directly or indirectly, significant benefit
and that Osprey is relying on the agreements and acknowledgements given in this
Agreement by the Covenantors.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
foregoing and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged by each of the parties), the Covenantors agree
with Osprey as follows:
1. DEFINITIONS
Terms used but not defined in this Agreement have the meanings given to them in
the Purchase Agreement. In addition, in this Agreement,
"COMPETING BUSINESS" means (a) the Prohibited Publications and (b) any
Publication commenced after the Closing Date which is distributed
within a Restricted Area;
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"INITIAL PUBLICATION" means a Publication published by any of the
Companies on the Closing Date;
"PROHIBITED PUBLICATIONS" means the Publications listed in Schedule A;
"PUBLICATION" means (a) daily, weekly or specialty newspapers, and (b)
in circumstances where the content is targeted primarily to recipients
located or resident in a specific geographic area, (i) specialty
publications published on a recurring basis and (ii) the dissemination
of content similar to (a) and (b)(i), through electronic media;
"REPRESENTATIVES" has the meaning given to that term in section 5; and
"RESTRICTED AREA" means the geographic area covered by the first three
characters of all of the postal codes in which the circulation of an
Initial Publication exceeds 10% of the aggregate circulation of such
Initial Publication as of the Closing Date provided, however, that if
Osprey sells (subject to section 9) or otherwise discontinues the
operations of an Initial Publication (for a period of twelve months
without substitution of a subsequent publication in the geographic area
in question), then the Restricted Area will no longer consist of those
postal codes in which such Initial Publication was distributed as of
the Closing Date, unless another Initial Publication was distributed in
those same postal codes on the Closing Date.
2. NON-COMPETITION
(a) Each Covenantor covenants and agrees with Osprey that neither
it nor its Affiliates, directly or indirectly, at any time
during the five (5) year period from the date of this
Agreement, either alone or in conjunction with any Person,
whether as principal, agent, shareholder, consultant, manager,
owner, partner, limited partner, joint venturer, trustee, or
in any other capacity whatsoever, shall invest in, undertake,
carry on, be engaged in, have a financial interest in, lend
money to, guarantee the debts or obligations of a Competing
Business or any Person the revenues of which are derived as to
more than 25% from a Competing Business or Competing
Businesses.
(b) In addition, each Covenantor covenants and agrees with Osprey
that, upon the written request of Osprey, it will, or will
cause its Affiliates to, remove from the website
xxx.xxxxxx.xxx (and any other website containing similar
content owned by it or its Affiliates) all webpages containing
the Initial Publications and all hypertext links thereto.
3. EXCEPTIONS
Nothing in this Agreement will restrict or prevent the Covenantors or any of
their Affiliates:
(a) from purchasing and holding purely as a passive investment
less than 7.5% of the outstanding publicly traded voting
and/or equity securities of a Person engaged in a Competing
Business;
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(b) from continuing to own and operate in the normal course the
balance of their newspaper businesses and interests remaining
after the completion of the sale of the Companies to Osprey;
(c) from the incidental distribution of a Publication which is
intended for principal distribution outside the Restricted
Areas;
(d) from distributing the National Post, the National Post
Business Magazine, any successor to either of those
publications or any other publication which is intended for
distribution nationally;
(e) from completing a transaction involving a Competing Business,
provided that the transaction includes the direct or indirect
acquisition (by any means including, without limitation,
amalgamation, merger, purchase) of an interest in the Toronto
Star Newspaper (the "Star") or relationship with a person,
directly or indirectly, owning the Star and provided that any
resulting direct or indirect ownership interest of CanWest or
its Affiliates in the Competing Business is substantially the
same as the direct or indirect ownership interest in the Star
and any relationship with the Competing Business is on
substantially the same terms as the relationship with the
Star;
(f) from entering into any agreement or completing any transaction
with any Person which owns a Competing Business, provided that
the agreement or transaction does not result in a direct or
indirect acquisition of, or investment in, or financial
interest in a Competing Business; or
(g) from disseminating any content through electronic media,
provided that the dissemination of such content is derived
from and consistent with the publication of the content in the
applicable newspaper or specialty publication associated with
the site of the electronic media or is derived from and
consistent with the publication of the content of a radio or
television broadcast of a broadcasting station owned by
CanWest or an Affiliate where the broadcast originates in the
local area.
4. NON-SOLICITATION
(a) Each Covenantor covenants and agrees with Osprey that, except
for or on behalf of the Companies or with the written consent
of Osprey, the Covenantor and its Affiliates will not directly
or indirectly, at any time within a period of five years from
the date of this Agreement:
(i) induce or attempt to induce or attempt to employ any
of the Employees employed as of the Closing Date to
leave his or her employment; or
(ii) employ any senior executive or management employees,
publishers, journalists or senior editorial personnel
of the Companies employed as of the Closing Date,
unless the Employee has (A) resigned his or her
employment at least three months prior to the
employment of the individual by the Covenantor or its
Affiliates or (B) been dismissed by Osprey.
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(b) Subsection 4(a)(i) will not apply in respect of any Employees
who apply to the Covenantor or its Affiliates for a position
(i) on an unsolicited basis or (ii) in response to a general
advertisement.
5. CONFIDENTIALITY
Each Covenantor acknowledges that the Covenantor has had access to confidential
and proprietary information and trade secrets of the Companies, the disclosure
of any of which confidential and proprietary information and trade secrets to
competitors of the Companies or to the general public would be detrimental to
the best interests of the Companies and Osprey and the Covenantor acknowledges
and agrees with Osprey that the right to maintain the confidentiality of the
confidential and proprietary information and trade secrets, and the right to
preserve the goodwill of the Companies, constitute proprietary rights which
Osprey is entitled to protect. Accordingly, each Covenantor covenants and agrees
with Osprey that neither the Covenantor nor its affiliates nor any directors,
officers, employees, agents, partners, consultants or representatives
(collectively, "REPRESENTATIVES") of the Covenantor or its affiliates will at
any time hereafter disclose any of the confidential and proprietary information,
except to the Covenantor's or its Affiliates or their Representatives to the
extent required to discharge the Covenantor's or its Affiliates obligations
under the Purchase Agreement and the agreements contemplated by the Purchase
Agreement, provided that no liability will attach to any disclosure by any of
those Persons of information which:
(a) was already in the public domain or comes into the public
domain or becomes available to the Covenantor or its
affiliates or their Representatives from a third party,
without any breach of this Agreement or any other obligation
of confidentiality to Osprey;
(b) is required to be disclosed pursuant to applicable laws or
pursuant to policies or regulations of any regulatory
authority or public body having jurisdiction over a party; or
(c) is required to be disclosed in any arbitration or legal
proceeding.
provided, in the case of subsection 5(c), Osprey is given notice of that
requirement by the Covenantor in question and is given a reasonable opportunity
to contest the disclosure requirement with appropriate proceedings.
6. RESTRICTIONS REASONABLE
Each Covenantor acknowledges that the time, scope, geographic area and other
provisions of this Agreement are reasonable in the circumstances of the
transactions contemplated by the Purchase Agreement and are given as an integral
and essential part of the transactions contemplated by the Purchase Agreement
and are necessary in order to protect and maintain the business and assets and
goodwill acquired by Osprey in connection with the transactions contemplated by
the Purchase Agreement.
7. ADDITIONAL REMEDIES
Each Covenantor acknowledges and understands that breach or threatened breach by
the Covenantor or its affiliates, or non-performance by the Covenantor or its
affiliates of any of the
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covenants or promises contained in this Agreement may cause irreparable damage
to Osprey or the Companies but not result in any readily quantifiable damages or
that the remedy at law may be inadequate. Accordingly, the Covenantor agrees and
accepts that Osprey may, in addition to any other claim for relief, enforce the
performance of any covenant of this Agreement by injunction or other equitable
relief upon application to a court of competent jurisdiction without requirement
to prove the inadequacy of available remedies, and agrees not to plead
sufficiency of damages as a defence in any proceeding for injunctive or other
equitable relief brought by Osprey to enforce the provisions of this Agreement.
The Covenantor agrees that since all of the restrictions in this Agreement are
reasonable, all defences to the strict enforcement by Osprey are hereby waived.
Furthermore, the existence of any claim or cause of action which the Covenantor
may have against Osprey will not constitute a defence or bar to the enforcement
of any of the provisions of this Agreement and will be pursued by separate
action by the Covenantor.
8. GOVERNING LAW AND ATTORNMENT
This Agreement will be construed in accordance with the laws of the Province of
Ontario and the laws of Canada applicable in Ontario and will be treated in all
respects as an Ontario contract and in the proceeding the parties will attorn to
the laws of Ontario and the non-exclusive jurisdiction of the Ontario courts and
agree not to dispute the competence or jurisdiction of the court.
9. ASSIGNMENT
(a) Neither this Agreement nor any rights or obligations under
this Agreement may be assigned by any of the parties to this
Agreement except:
(i) with the written consent of the other parties; and
(ii) subject to subsection (b), Osprey may assign the
benefits of this Agreement to a purchaser of an
Initial Publication (or of a Company publishing an
Initial Publication) as it applies to the Restricted
Area applying to that Publication and the
solicitation and employment of the employees of that
Initial Publication (or the Company publishing such
Initial Publication).
(b) Osprey shall not assign this Agreement or any of the rights or
obligations or benefit of this agreement to a purchaser which
is a competitor of CanWest in the newspaper business anywhere
in Canada.
10. SUCCESSORS AND ASSIGNS
The provisions of this Agreement will enure to the benefit of and be binding
upon the parties to this Agreement and their respective heirs, executors,
administrators, successors and permitted assigns.
11. RAVELSTON NON-COMPETITION AGREEMENT
CanWest hereby sells, transfers and assigns all of the benefit of the
non-competition, non-solicitation and confidentiality agreements dated November
15, 2000 entered into by CanWest and 3815668 Canada Inc. with Xxxxxxxxx Inc. and
certain associates and Affiliates of Xxxxxxxxx
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Inc. relating to any Publications of the Companies to Osprey if and only to the
extent each may be assigned and without any representation or warranty by the
Covenantors as to the assignability or enforceability of such agreements.
12. CONTROLLED CORPORATIONS
Each Covenantor hereby agrees to cause all corporations controlled by it (or
jointly by the Covenantors) to comply with the provisions of this Agreement as
if each such corporation was a Covenantor hereunder. For such purposes
"controlled" means the possession, directly or indirectly, of the power to cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
13. NON-WAIVER
The failure of any party to this Agreement to require the performance of any
term or condition of this Agreement or the waiver by any party of any breach of
this Agreement, will not prevent a subsequent enforcement of the term or any
other term and will not be deemed to be a waiver of any subsequent breach.
14. COUNTERPARTS
This Agreement may be signed in counterparts and each counterpart will
constitute an original document and counterparts, taken together, will
constitute one and the same instrument. Delivery of counterparts may be made by
facsimile or other means of electronic communication.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF this Non-Competition, Non-Solicitation and
Confidentiality Agreement has been executed by the parties as of the date first
above written.
CANWEST GLOBAL
COMMUNICATIONS CORP.
By: /s/ XXXXXXX XXXXXXX
_________________________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President and General
Counsel
GLOBAL COMMUNICATIONS LIMITED
By: /s/ XXXXXXX XXXXXXX
_________________________________
Name: Xxxxxxx Xxxxxxx
Title: Director
OSPREY MEDIA HOLDINGS INC.
By: /S/ XXXXXXX X. XXXXXX
_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
SCHEDULE A
PROHIBITED PUBLICATIONS
Xxxxxxxx Spectator
Guelph Mercury
Cambridge Reporter
Flamborough Post
Guelph Pennysaver
Brantford Pennysaver
