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EXHIBIT 10.22
May 7, 1999
LAI Worldwide, Inc.
Xxxxxxxxxxxx Xxxxx, Xxxxx 0000
0000 Xxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Dear Xxx:
This will confirm the understanding and agreement between TMP
Interactive Inc. ("TMP") and LAI Worldwide, Inc. ("LAI") relating to a co-op
advertising and promotional new business.
1. TMP agrees that for a period of four years from the date hereof
(the "Term"), LAI through its LAI Xxxxxxx.xxx web site
(xxx.xxxxxxxxxx.xxx) or such other web site as LAI may designate
from time to time will be the exclusive provider of online
candidate personality assessment activities for mid-level
positions paying annual base salaries of between $70,000 and
$140,000 ("Selection") with a direct link from xxx.xxxxxxx.xxx to
xxx.xxxxxxxxxx.xxx. During the Term, TMP will provide links to no
other executive search firm for Selection. During the Term, TMP
will provide no links on its home page or on the opening page of
any of its zones for any firm whose primary business involves the
placement of candidates with clients for mid-level positions
paying annual base salaries of between $70,000 and $140,000, other
than the link to the LAI Xxxxxxx.xxx web site or to the web sites
of firms which are TMP "affiliates" (as that term is defined in
Rule 405 under the Securities Act of 1933).
2. LAI shall be responsible for the operation of xxx.xxxxxxxxxx.xxx
at no out-of-pocket cost or expense to TMP. LAI covenants and
agrees to use commercially reasonable efforts to ensure rapid
responsiveness to users' attempts to access xxx.xxxxxxxxxx.xxx and
to retrieve information therefrom. TMP is aware that
xxx.xxxxxxxxxx.xxx has only recently begun operations; LAI has
ordered scalability testing for its site and expects to be advised
of the results of testing in two to three weeks. At the present
time, the scalability of xxx.xxxxxxxxxx.xxx is not known.
3. TMP shall be responsible for the operation of xxx.xxxxxxx.xxx at
no out-of-pocket cost or expense to LAI. TMP covenants and agrees
to use commercially reasonable efforts to ensure rapid
responsiveness to users' attempts to access xxx.xxxxxxx.xxx, to
retrieve information therefrom and to directly link
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May 7, 1999
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to xxx.xxxxxxxxxx.xxx. TMP shall select and design a graphical
icon to link to xxx.xxxxxxxxxx.xxx from xxx.xxxxxxx.xxx, the form
of which and placement on xxx.xxxxxxx.xxx shall be reasonably
acceptable to LAI. The link for xxx.xxxxxxxxxx.xxx shall be
displayed prominently on the xxx.xxxxxxx.xxx home page.
4. In consideration for TMP's obligations hereunder, during the Term
LAI shall promote xxx.xxxxxxxxxx.xxx and its availability at
xxx.xxxxxxx.xxx. LAI further agrees that during each of the months
of May and June, 1999, it will contract and pay for $5,000,000 in
television commercials and other advertising promoting
xxx.xxxxxxxxxx.xxx and its availability at xxx.xxxxxxx.xxx. It is
the parties' intent that up to an aggregate of $1,000,000 of the
total amount of such advertising and promotion expenditures shall
be in print or other media targeted at human resources or senior
executives in a position to engage LAI to execute Selection
assignments. In all advertising and promotion, LAI shall comply
with TMP's advertising policies and shall submit any and all
advertisements and promotions to TMP for approval no less than 10
days before they are proposed to be aired or published. TMP shall
promptly review any and all such proposed advertising and
promotion and promptly respond with its approval or changes
necessary to satisfy TMP's policies.
5. Either party may terminate this agreement for a material breach by
the other party which remains unremedied for a period of 15 days
after written notice. Either party may also terminate this
agreement upon no less than 10 days written notice effective
October 1, 1999 or thereafter for any other reason, or no reason
at all, provided, however, that in the event of a termination
under this sentence, TMP shall, as LAI's sole and exclusive remedy
other than interest and the costs of collection as provided in
paragraph 6 hereof, immediately reimburse LAI for any amounts
spent by LAI in May and June 1999 (or committed to be spent in
such months which commitments are not subject to refund upon
cancellation) pursuant to the provisions of paragraph 4 above,
pro-rated for the period of time elapsed (as of the effective date
of termination) between the date of this agreement and the fourth
anniversary of the date of this agreement (the "Reimbursement
Payment"). For example, if this letter agreement is terminated
effective October 1, 1999, the Reimbursement Payment would equal
89.58% of the covered expenditures (43 months/48 months). TMP's
obligations to make the Reimbursement Payment and any other
amounts due to LAI under this letter agreement shall be secured by
an irrevocable standby letter of credit in the amount of not less
than $10 million dollars, which standby letter of credit shall be
obtained by TMP Worldwide, Inc. ("TMP Worldwide") and shall be in
such form and include such terms and
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May 7, 1999
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conditions as are reasonably acceptable to LAI and TMP (the
"Standby Letter of Credit"). The Standby Letter of Credit shall be
issued by the Bank of New York, BNY Financial Corporation or a
domestic commercial bank or other similar domestic financial
institution reasonably satisfactory to LAI, the commercial paper
of which is rated P-3 or higher by Xxxxx'x or A-3 or higher
Standard & Poor's. LAI's obligations to make arrangements for the
advertising and promotional expenditures described in this letter
agreement shall not arise unless and until the Standby Letter of
Credit has been issued and delivered to LAI.
6. Neither party shall be liable under any legal theory for indirect,
special or consequential damages to the other party. Each party
(the "Indemnifying Party") shall defend, indemnify and hold
harmless the other party and the other party's affiliates from and
against any and all liabilities, losses, costs and expenses
(including but not limited to reasonable attorneys fees and costs)
arising out of or in connection with any breach by the
Indemnifying Party of its representations, warranties or covenants
hereunder. Any amount under this agreement which is not paid when
due shall bear interest from the due date until the date paid at a
rate of 10% per annum. It is understood that TMP has no control
over, nor responsibility for, products or services on
xxx-xxxxxxx.xxx sites with links to xxx.xxxxxxx.xxx, including but
not limited to any online candidate competency assessment tools
that may be available at such sites. The parties are independent
contractors. This agreement (i) constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes any previous oral or written arrangements, (ii) may be
signed in counterparts, (iii) may not be amended, terminated or
waived orally and (iv) shall be governed by the laws of the State
of Florida without giving effect to the provisions thereof
governing conflicts of law. In connection with any action, suit or
proceeding hereunder, each party (i) consents to non-exclusive
jurisdiction of any federal or state court located in the State of
Florida, and appropriate appellate courts therefrom, (ii) to
personal jurisdiction therein, and (iii) to waive any objection to
the venue of such proceedings for lack of personal jurisdiction.
Any and all amounts due to LAI hereunder shall be payable in
Tampa, Florida via wire transfer to the bank account designated by
LAI from time to time. No delay in enforcing the terms of this
letter agreement by any of the parties shall be construed as a
waiver of, or bar to, the right to subsequently enforce such
terms.
Please sign the additional originally executed copy of this letter in
the space provided for your signature below to indicate your acceptance and
agreement with the terms of this letter agreement and return one fully executed
original.
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May 7, 1999
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Very truly yours,
TMP WORLDWIDE INC.
By:
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Name: Xxxxxx X. XxXxxxxx
Title: Chairman
TMP INTERACTIVE INC.
By:
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Name: Xxxxxx X. XxXxxxxx
Title: Chairman
Accepted and Agreed This
____ day of May, 1999:
LAI WORLDWIDE, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer