CONSENT AND WAIVER
Exhibit
2.1
This
CONSENT AND WAIVER
(“Consent and Waiver”) is made as of this ______ day of July 2009 by and
among MEDIALINK WORLDWIDE INCORPORATED, a Delaware Corporation (“Medialink”),
The Newsmarket, Inc. a Delaware corporation (“Parent”), and TNM Group
Incorporated, a Delaware corporation (“Merger Sub”).
WHEREAS, on July 1, 2009
Medialink entered into that certain Agreement and Plan of Merger (the “Merger
Agreement”) with Parent and Merger Sub. All terms used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement;
WHEREAS, on June 30, 2009
Medialink entered into that certain Payoff, Amendment and Settlement Agreement
(the “Payoff Agreement”) with each of Iroquois Master Fund, Ltd., Xxxxxxxx
Investment Master Fund Ltd., Portside Growth And Opportunity Fund, and
Smithfield Fiduciary LLC (collectively, the “Former Debenture Holders”) pursuant
to which, among other things, the Company paid to the Former Debenture Holders
an aggregate amount of $1,590,000 in exchange for the extinguishment of the
Company’s obligations under its Variable Rate Convertible Debentures due June
30, 2010 in the aggregate principal amount of $2,650,000 held by the Former
Debenture Holders;
WHEREAS, the Former Debenture
Holders have made certain claims against Medialink related to the Payoff
Agreement and the transactions contemplated thereby (the “Debenture Claims”),
which claims have been denied in their entirety by Medialink;
WHEREAS, on July 17, 2009
Medialink notified its directors and officers insurance carrier of the potential
claim (the “D&O Notice”; such D&O Notice attached hereto as Exhibit A);
and
WHEREAS, Medialink and the
Former Debenture Holders have agreed to enter into an agreement and general
release (the “Agreement and General Release”) whereby (A) Medialink will pay the
Former Debenture Holders (i) the aggregate amount of $515,000 (the “Settlement
Payment”) in settlement of all claims (the “Settlement Payment”) and (ii) the
aggregate amount of $10,000 the “Warrants Payment”) in consideration for the
repurchase by Medialink and surrender by the Former Debenture Holders of those
certain warrants to purchase an aggregate of 536,729 shares of the Company’s
Common Stock held by the Former Debenture Holders (the “Warrants”) and in
further consideration for the Former Debenture Holders tendering to Medialink a
full release covering all claims the Former Debenture Holders have or may have
against Medialink, Parent, Merger Sub and each of their respective officers,
directors, shareholders, members, partners, affiliates, assigns, parents,
subsidiaries, successors-in-interest, agents, advisors and employees
(collectively, the “Released Parties”), and (B) Medialink, on behalf of itself
and the Released Parties will tender to the Former Debenture Holders a full
release covering all claims Medialink and/or the Released Parties have or may
have against the Former Debenture Holders and each of their respective officers,
directors, shareholders, members, partners, affiliates, assigns, parents,
subsidiaries, successors-in-interest, agents, advisors and employees, all as
more specifically described in the Agreement and General Release, substantially
in the form of Exhibit B attached hereto.
NOW, THEREFORE, in
consideration of the mutual promises and covenants hereinafter set forth, the
parties agree as follows:
1. Parent
and Merger Sub each hereby consent to the (i) payment by Medialink of the
Settlement Payment to the Former Debenture Holders; (ii) payment by Medialink of
the Warrant Payment to the Former Debenture Holders; (iii) the repurchase by
Medialink, and the surrender by the Former Debenture Holders, of the Warrants;
(iv) the receipt and execution by Medialink of the Agreement and General
Release, including without limitation, the release of claims against the Former
Debenture Holders; and (v) the transmission of the D&O Notice (the actions
and activities described in (i), (ii), (iii), (iv) and (v) of this Section
collectively referred to herein as the “Medialink Actions”).
2. Parent
and Merger Sub each hereby agree and acknowledge that the Medialink Actions
shall not be deemed to be a violation of any of the provisions of Article 3,
Section 5.1 or Article 7 of the Merger Agreement or any other provision of the
Merger Agreement, including without limitation, Sections 5.1(a), 5.1(f) 5.1(m),
5.1(p) and 5.1(r), 7.1 and 7.2.
3. Parent
and Merger Sub each hereby acknowledge that they are aware of the Debenture
Claims and that the Debenture Claims are hereby deemed disclosed under the
Company Disclosure Schedule, including without limitation, under Sections 3.5,
3.11, 3.12, 3.18, 3.21 and 3.23 of the Company Disclosure Schedule.
4. Parent
and Merger Sub each hereby acknowledge that they are aware of the Medialink
Actions and that the Medialink Actions are hereby deemed disclosed under the
Company Disclosure Schedule, including without limitation, under Sections 3.11,
3.21 and 3.23 of the Company Disclosure Schedule. Medialink hereby
agrees that as of even date herewith there will be no Warrants outstanding and
the Company Disclosure Schedule will be modified to reflect
such. Parent and Merger Sub each hereby acknowledge that Sections 1.6
and 3.5 of the Company Disclosure Schedule are hereby deemed modified to
indicate that no Warrants are outstanding as of even date herewith.
5. Parent
and Merger Sub each hereby waive any right to claim that any of the Debenture
Claims or Medialink Actions constitutes, resulted in, or is likely to have, a
Material Adverse Effect or Material Adverse Change, as such terms are defined in
Section 3.1 of the Merger Agreement.
6. Parent
and Merger Sub each hereby waive any right to claim that any of the Debenture
Claims or Medialink Actions is sufficient cause to claim that the conditions to
the obligations of Parent and Merger Sub have not been satisfied, including
without limitation, the conditions set forth in Sections 8.2(d), 8.2(e) or
8.2(f) of the Merger Agreement.
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7. Parent
and Merger Sub each hereby waive any right to claim that any of the Debenture
Claims or Medialink Actions is sufficient cause for Parent or Merger Sub to
terminate the Merger Agreement, including without limitation, a termination
pursuant to Section 9.1(e) of the Merger Agreement.
8. Parent
and Merger Sub each hereby waive any right to claim that the Medialink Actions
constitute a deliberate breach of the Merger Agreement by
Medialink.
9. Parent
and Merger Sub agree and acknowledge that the neither the Debenture Claims nor
the Medialink Actions shall give rise to the payment of the Company Termination
Fee.
10. Medialink
agrees and acknowledges that the Medialink Actions may necessitate the amendment
of the Xxxxxxx Xxxxxxxx Separation Agreement and of the Director Fee Waiver,
which amendments will adversely affect the non-Medialink parties to such
agreements and will be effected after consultation with Parent. The
parties agree that any such amendments (effected after the consent of Parent has
been received) shall be deemed to be part of the “Medialink Actions” and shall
not be deemed to be in violation of any of the provisions of the Merger
Agreement.
11. If
any provision, or portion thereof, of this Consent and Waiver is determined to
be invalid under applicable statute or rule of law, only such provision, and
only to the extent determined to be invalid, shall be deemed omitted from this
Consent and Waiver, the remainder of which shall remain in full force and
effect.
12. This
Consent and Waiver constitutes the complete agreement between the parties with
respect to the Debenture Claims and the Medialink Actions.
13. This
Consent and Waiver and its execution, validity and interpretation shall be
governed in all respects by the laws of the State of Delaware regardless of the
laws that might otherwise govern under principles of conflicts of laws
applicable thereto.
14. This
Consent and Waiver may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the
parties hereto have caused this Consent and Waiver to be duly executed by their
respective authorized officers as of the day and year first above
written.
| Medialink Worldwide Incorporated | |||
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|
By:
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| Xxxxxxx X. Xxxxxxxx, Chief Financial Officer | |||
| The Newsmarket, Inc. | |||
| By: | |||
| Xxxxx X. Xxxxxxxx, Chief Executive Officer | |||
| TNM Group Incorporated | |||
| By: | |||
| Xxxxx X. Xxxxxxxx, Chief Executive Officer | |||
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