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EXHIBIT 10.05
Dated 1999
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(1) CNBC SPORTS INTERNATIONAL
LIMITED
(2) XXXXXXX HILLS LTD., INC.
(3) FOCUSED MEDIA LIMITED
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SUBSCRIPTION AND
SHAREHOLDERS' AGREEMENT
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DRAFT(2)SJG/TH(1730569.06)06.05.99
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XXXXXX XXXX
FIVE XXXXXXXX XXXX
XXXXXXXX'X XXX
XXXXXX XX0X IBU
FAX: 0000-000-0000
TEL: 0000-000-0000
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CONTENTS
CLAUSE HEADING PAGE
1 DEFINITIONS............................................. 1
2 COMPLETION OF ARRANGEMENTS FOR PARTICIPATION............ 2
3 DIRECTORS............................................... 3
4 TRANSFER OF SHARES...................................... 3
5 THE BUSINESS............................................ 3
6 COMPETITION............................................. 5
7 MISCELLANEOUS........................................... 5
8 NOTICES................................................. 5
9 NO PARTNERSHIP OR AGENCY................................ 6
10 GOVERNING LAW........................................... 6
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THE AGREEMENT is made on the _______ day of ________ 1999:
(1) CNBC SPORTS INTERNATIONAL LIMITED ("CNBC SPORTS") a company incorporated
in England and Wales under number 3378197 and having its registered
office at 00 Xxxxxxxxx Xxxxxxx, Xxxxxx XX0 0XX; and
(2) XXXXXXX HILLS LIMITED ("BHL") a company incorporated in the State of Utah
and having its principal office at 0000 Xxxxxxx Xxxx, Xxxxx 000x-000,
Xxxxxxxx, XX 00000, XXX; and
(3) FOCUSED MEDIA LIMITED ("THE COMPANY") a company incorporated in Ireland
under number 289308 and having its registered office at c/o Xxxxxxx Xxxxx
(Solicitors)
WHEREAS:
(A) The Company is a private company limited by shares and had prior to the
date of this Agreement an authorised share capital of L.1,000,000 of which
121,353 shares of L.1 each have been issued and are fully paid and will on
the date of Completion of this Agreement in accordance with Clause 2 have
an issued share capital of L.151,692 comprising 151,692 shares of L.1 each.
(B) BHL is the registered holder and beneficial owner of the entire issued
share capital of the Company.
(C) The Company carries on the business of, inter alia, operating, promoting
and maintaining the xxxxxxxxxx.xxx Internet website (the "Website").
(D) The parties hereto have agreed to cooperate in the Business (as
hereinafter defined) on the terms set out in this Agreement for which
purpose CNBC Sports has agreed to subscribe and the Company has agreed to
issue 30,339 shares representing, at the date of this Agreement, twenty
(20) percent of the shares in the capital of the Company.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 Unless the context otherwise requires, in this Agreement and the Schedules
the following expressions shall have the following meanings:
"BOARD": the board of directors of the Company for the time being;
"BUSINESS": the business of operating the xxxxxxxxxx.xxx website;
"COMPLETION DATE": the date upon which BHL delivers to CNBC Sports, which
BHL shall do no later than June 1st 1999, the following original documents:
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(i) Register of members of the Company indicating that BHL is the sole
owner of the entire issued share capital of the Company;
(ii) Share certificates representing all the shareholders in the Company
as at the date of this Agreement; and
(iii) trademark assignment dated 21 April 1999 relating to "Global Golf";
and
(iv) financial records and/or the latest available management accounts of
the Company indicating that the Company is solely and wholly
responsible for the conduct of and entitled to revenues from the
Business.
"KNOW-HOW": all know-how materially relevant to the Business;
"SHAREHOLDERS": the holders from time to time of shares in the Company;
"TELEVISION OR MEDIA COMPANY": a company the business of which is the
broadcast or transmission by satellite, cable or terrestrial transmission,
or any other method of delivery, in any country, of programmes of any
nature, or the business of which involves the creation, promotion,
organization, marketing, distribution or selling of any programmes, or the
business of which is the creation or distribution of printed material for
public consumption in any country.
1.2 Where the context permits, the singular includes the plural and vice versa
and one gender includes any gender. Words importing individuals shall be
treated as importing corporations and vice versa and words importing the
whole shall be treated as including a reference to any part thereof.
1.3 Clause and Schedule headings are inserted in the Agreement for
convenience only and shall not affect the construction thereof in any way.
2. COMPLETION OF ARRANGEMENTS FOR PARTICIPATION
2.1 CNBC Sports shall, on the Completion Date subscribe and hereby applies for
30,339 shares, representing twenty (20) percent of the issued share
capital of the Company at a total subscription price of US$1.00.
2.2 On the Completion Date a meeting of the Board shall be held at which:
(a) CNBC Sports shall subscribe for 30,339 shares, representing twenty
(20) percent of the issued share capital of the Company shares for
US$1.00;
(b) Xxxx Broke-Xxxxx shall be appointed as a director of the Company; and
(c) the Board shall allot the shares mentioned at Clause 2.2(a) above and
register the shares so allotted in the name of CNBC Sports.
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3. DIRECTORS
3.1 For so long as CNBC Sports shall be registered as a member in respect of
any shares in the capital of the Company it shall be entitled to appoint
one person to be a director of the Company.
4. TRANSFER OF SHARES
4.1 This Clause shall apply if one or more parties to this Agreement
("PROPOSED TRANSFEROR") wishes to transfer any or all of its Shares or any
interest therein to a third party. Where this Clause applies the Proposed
Transferor may not transfer any or all of its shares unless, at least 28
days prior to the date of the agreement to transfer, the transferee shall
have made a written offer ("OFFER") to the other party ("OFFEREE") to
purchase all of its shares at the same price per share (and otherwise on
the same terms) as is applicable to the proposed sale of shares by the
Proposed Transferor. The Offer shall be on terms that it shall be open
for acceptance by the Offeree for not less than 21 days and, if accepted,
the sale of all of the Offeree's Shares shall be completed simultaneously
with the completion of the sale of the Proposed Transferor's Shares.
4.2 Notwithstanding the provisions of Clause 4.1 above, in the event that CNBC
Sports shall be under any obligation to assign its shares in the Company
to any member of the Parallel Media Group of companies, it shall be
permitted to do so provided that the relevant assignee Parallel Media
Group company agrees, in a form acceptable to BHL, to adhere to the
obligations of CNBC Sports under the terms of this Agreement. No other
member of the Company shall be entitled to be offered an opportunity to
acquire such shares.
5. THE BUSINESS
5.1 Each of the parties hereby undertakes, unless otherwise agreed between the
parties, with the other that it shall procure that the Company shall not
undertake any business other than the Business and operations incidental
thereto.
5.2 BHL warrants that, for so long as CNBC Sports is a member of the Company,
it will procure that the Business will be conducted by the Company and
that all revenues derived from the Business will be solely for the benefit
of the Company and its members.
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5.3 Any decision of the Board relating to any of the following matters shall
require the prior approval, such approval not to be unreasonably withheld,
in writing of each of the parties
(a) the capitalisation, repayment or other forms of distribution of any
amount standing to the credit of any reserve of the Company or the
redemption or purchase of any shares or any other reorganisation of
the share capital of the Company;
(b) the admission of any person whether by subscription or transfer as a
member of the Company;
(c) the transfer or disposal by the Company to any third party of all or
any material portion of the assets of the Company outside the ordinary
course of the Business.
5.4 CNBC Sports and BHL shall have, in the event that the Company issues any
class of security, the right but not the obligation, pro rata to its
existing shareholding in the capital of the Company, to subscribe for
additional shares in the capital of the Company on terms no more onerous
than those on which the Company is proposing to issue shares to any other
party.
5.5 CNBC Sports shall have the right, but not the obligation, to contribute
any capital, by way of loan or any other method, to the Company in the
event that the Company requires additional funding whether such funding is
within the ordinary course of business or whether such funding relates to
transactions involving expenditure by the Company not provided for in the
budgets of the Company.
5.6 The Company undertakes with each of the Shareholders that the Company will
ensure that:
(a) all business of the Company, other than routine day to day business,
shall be undertaken and transacted by the Directors;
(b) it shall keep the Shareholders fully informed as to all material
developments regarding its financial and business affairs and will
notify the Shareholders forthwith upon becoming aware of any
significant litigation affecting or likely to affect the Company;
(c) it shall keep the books of account and therein make true and complete
entries of all its dealings and transactions of and in relation to its
business;
(d) it shall deliver to the Shareholders as promptly as practicable such
additional financial or other information as may reasonably be
requested by the Shareholders upon giving reasonable prior written
notice; and
(e) all decisions relating to the issue of shares in the capital of the
Company shall be duly considered by the Board at a duly convened Board
Meeting.
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5.7 The parties agree that Board Meetings will be held at least once in every
three calendar months and that for such purposes, the quorum for such
meetings shall be two directors, provided that one director shall be a
director appointed by CNBC Sports and that CNBC Sports shall be entitled
to due notice of any Board Meeting.
6. COMPETITION
6.1 BHL and CNBC Sports each hereby undertakes that during the continuance of
this Agreement and for a period of one year thereafter it will neither
directly or indirectly approach nor contract with any Television or Media
Company with a view to such a company being a shareholder in the Company.
6.2 Each of the parties shall maintain strict confidence and secrecy in
respect of all information of a proprietary nature received by it directly
or indirectly pursuant to this Agreement and shall keep confidential any
information relating to the specific terms of this Agreement. The
obligations of this Clause 6.2 shall survive the termination of this
Agreement and each of the Founders shall continue to observe them
regardless of whether its rights hereunder shall be terminated or it shall
cease to be a party hereto.
7. MISCELLANEOUS
7.1 Each of the parties shall do all such things as may be within its power
including without limitation the passing of resolutions (whether by the
Board or in general meeting of the Company) to procure that the provisions
of this Agreement are observed and performed.
7.2 In the event of any clause contained in this Agreement or any part thereof
being declared invalid or unenforceable, all other clauses or parts
thereof contained in this Agreement shall remain in full force and effect
and shall not be affected thereby.
8. NOTICES
8.1 Any notice or other communication given or made under this Agreement shall
be in writing and may be delivered to the relevant party or sent by first
class prepaid letter or facsimile transmission to the address of that party
specified in this Agreement or to that party's or facsimile transmission
number thereat or such other address or number as may be notified hereunder
by that party from time to time for this purpose and shall be effectual
notwithstanding any change of address not so notified.
8.2 Unless the contrary shall be proved, each such notice or communication
shall be deemed to have been given or made and delivered, if by letter, 48
hours after posting, if by delivery, when left at the relevant address
and, if by facsimile transmission, when transmitted
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9. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement shall be deemed to constitute a partnership
between the parties hereto nor, save as expressly set out herein,
constitute any party the agent of another party for any purpose. In
addition, unless otherwise agreed in writing between the parties, neither
of them shall enter into contracts with third parties as agent for any
member of the Group or for the other party nor shall either party describe
itself as agent as aforesaid or in any way hold itself out as being an
agent as aforesaid.
10. GOVERNING LAW
10.1 This Agreement shall be governed by and construed in all respects in
accordance with the English law and it is irrevocably agreed the courts of
England are to have jurisdiction to settle any disputes which may arise out
of or in connection with this Agreement and that accordingly any suit,
action or proceeding arising out of or in connection with this Agreement
(in this Clause referred to as 'Proceedings') may be brought in such
courts. Nothing in this Clause shall limit the right of CNBC Sports to take
Proceedings against BHL in any other court of competent jurisdiction, nor
shall the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently or
not. Nothing in this Agreement shall require any of the parties to this
Agreement to breach any provision of the laws of the Republic of Ireland as
they may relate to companies registered in the Republic of Ireland.
10.2 BHL and Focused Media appoint [ ] as their authorised agent in
England and Wales for the purpose of accepting service of process for all
purposes in connection with this Agreement.
AS WITNESS the hands of the parties the day and year first above written
Duly executed )
for and on behalf of )
CNBC SPORTS INTERNATIONAL)
LIMITED )
Duly executed )
for and on behalf of )
XXXXXXX HILLS LTD., INC. )
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Duly executed )
for and on behalf of )
FOCUSED MEDIA LIMITED )
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THIS AGREEMENT is made the _______ day of _________ 1999
BETWEEN:
(1) CNBC SPORTS INTERNATIONAL LIMITED of 00 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxx,
Xxxxxx XX0 0XX ("CNBC SPORTS");
(2) FOCUSED MEDIA LIMITED of Carndonagh (c/o Xxxxxxx Xxxxx, Solicitors,) County
Donegal, Ireland ("FOCUSED MEDIA"); and
(3) BEVERLEY HILLS LTD., INC. a Utah corporation whose principal office is at
0000 Xxxxxxx Xxxx, Xxxxx 000x-000, Xxxxxxxx, XX 00000, XXX ("BHL").
INTRODUCTION:
(A) Focused Media owns and operates the xxxxxxxxxx.xxx Internet web site (the
"WEB SITE"). This Agreement shall be subject to the completion of an
agreement of even date pursuant to which CNBC Sports has been allotted
twenty per cent (20%) of the issued share capital of Focused Media.
(B) The television channels currently known as "CNBC Europe" and "CNBC Asia"
(the "NON-US CHANNELS") transmit two international broadcast feeds for six
(6) hours each day on Saturdays and Sundays consisting of sports
programming supplied by CNBC Sports (the "CNBC FEEDS") and CNBC Sports has
the right to sell commercial advertising airtime during the CNBC Feeds.
Focused Media wishes to purchase certain of such airtime and CNBC Sports
is willing to produce the commercial advertising for the airtime purchased
by Focused Media on the terms set out in this Agreement.
(C) BHL wishes to fund the production by CNBC Sports of a weekly golf show for
international television broadcast, and to purchase certain commercial
advertising airtime on the television channel currently known as "CNBC"
which is broadcast in the United States of America (the "US CHANNEL"), in
each case on the terms set out in this Agreement.
IT IS AGREED as follows:
1. GENERAL
1.1 This Agreement shall only be executed subject to and following the
completion of the agreement outlined in paragraph (A) above.
1.2 Each party to this Agreement hereby indemnifies each of the other parties
in full against any and all losses, liabilities, claims, actions, damages
and expenses arising directly or indirectly from any breach by the
defaulting party of any of the terms of this Agreement.
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2. AIRTIME ON NON-US CHANNELS
2.1 CNBC Sports sells to Focused Media, and Focused Media purchases from CNBC
Sports, upon and subject to the terms of this Agreement during the period
1st June 1999* to 31st December 1999 (inclusive) (the "INITIAL PERIOD")
those advertising spots during the CNBC Feeds which are detailed in
Schedule 1 attached or such other substantially similar advertising spots
during the CNBC Feeds as may be agreed between CNBC Sports and Focused
Media (the "NON-US INVENTORY"). The initial term of the broadcast promotion
contract will be for 3 years (June 1st 1999* - May 31st 2002) with a one
year continuation clause exercisable 12 months prior to the end of this
initial contract period. Airtime purchases made after 31st December 1999
will be by mutual agreement, the parties agreeing to negotiate with each
other in good faith. In the event that the parties fail to reach agreement
on airtime purchases to be made after 31st December 1999. Focused Media
agrees that it will purchase from CNBC Sports such advertising spots
outside the United States of America as will equate to twenty (20) percent
of the annual advertising expenditure of Focused Media in any one calendar
year for the term of this Agreement. Focused Media shall, in such
circumstances and notwithstanding any other provision of this Agreement, be
permitted to spend a maximum of eighty (80) percent of its annual budgeted
advertising expenditure on non-CNBC Channels.
2.2 Focused Media is purchasing and shall utilise the Non-US Inventory for
commercial advertising promoting the Web Site and the services offered by
BHL upon and subject to the applicable terms and conditions contained in
the agreements between CNBC Sports and the Non-US Channels (details of
which shall be provided by CNBC Sports to Focused Media).
2.3 In consideration of the sale of the Non-US Inventory, Focused Media shall
pay to CNBC Sports the sum of US$1.5 million (US$1,500,000) to be paid to
CNBC Sports in equal monthly instalments on the first day of each calendar
month during the Initial Period. Focused Media shall also pay any VAT or
other sales tax at the applicable rate payable on such sum.+
2.4 If Focused Media wishes to purchase additional available advertising spots
during the CNBC Feeds, CNBC Sports shall sell such advertising spots on
such terms as Focused Media and CNBC Sports shall agree but in no event at
less than US$500 per spot.
3. US CHANNEL AIRTIME
3.1 CNBC Sports sells to BHL, and BHL purchases from CNBC Sports, upon and
subject to the terms of this Agreement, during the Initial Period
advertising spots on the US Channel as per the attached Schedule 2 (the
"US INVENTORY").
3.2 BHL is purchasing and shall utilise the US Inventory upon and subject to
the standard terms and conditions which are applicable to airtime purchases
on the US Channel (details of which shall be provided by CNBC Sports to
BHL).
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* 4 Sep 1999 (8/24/99 Amendment)
+ See Addendum 1 (8/24/99 Amendment)
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3.3 In consideration of the sale of the US Inventory, BHL shall pay to CNBC
Sports the sum of US$1 million to be paid to CNBC Sports in equal monthly
installments on the first day of each calendar month during the Initial
Period. BHL shall also pay any VAT or other sales tax at the applicable
rate payable on such sum.
4. PROMOTION OF GLOBAL GOLF SHOW
4.1 BHL agrees to advance to CNBC Sports in three (3) equal monthly
installments payable by BHL on July 1st 1999, August 1st 1999 and September
1st 1999 respectively the sum of US$1 million in order to fund the
production and/or commissioning by CNBC Sports of a series of forty
golf-based television shows intended to be 26 minutes in duration each (the
"SERIES") for which CNBC Sports shall act as exclusive worldwide
distributor as per the attached Schedule 3.
5. PRINT ADVERTISING
5.1 CNBC Sports shall, at its cost, procure for Focused Media, upon and subject
to the terms of this Agreement, during the Initial Period the print
advertising space which is detailed in the attached Schedule 4 or such
other substantially similar advertising space as may be agreed between
CNBC Sports and Focused Media (the "PRINT INVENTORY") provided that CNBC
Sports may, by written notice from Focused Media and at Focused Media's
sole discretion, make available to Focused Media instead of the Print
Inventory (or any part thereof) advertising spots of equivalent
acquisition cost on the US television channel currently known as "MSNBC"
(the "TRADED INVENTORY").
5.2 Focused Media is purchasing and shall utilize the Print Inventory and/or
the Traded Inventory upon and subject to the standard terms and conditions
which are applicable to purchases of the Print Inventory and/or the
Traded Inventory (details of which shall be provided by CNBC Sports to
Focused Media).
6. PRODUCTION SERVICES
6.1 Focused Media engages CNBC Sports, and CNBC Sports agrees, during the
Initial Term to produce and/or procure the production of the commercial
advertising which is to be shown on a rotating basis in the advertising
spots purchased in accordance with Clause 1 (the "COMMERCIALS"). The
Commercials shall be produced at CNBC Sports' cost but in accordance with a
production schedule and budgets for the Commercials agreed in writing
between Focused Media and CNBC Sports.
6.2 BHL shall retain final editorial control over the Series, and Focused
Media shall retain final editorial control over the Commercials, subject
to any relevant third party contractual requirements with which CNBC
Sports must comply and all applicable broadcasting and advertising laws,
codes and regulations.
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7. ADDITIONAL PROMOTIONS
7.1 CNBC Sports shall use its reasonable endeavours to procure (a) the
services of Xxxxxx Xxxxx Xxxxx Jnr. at a cost to be agreed with BHL and (b)
at CNBC Sports' cost the services of Xxx Xxxxxxxx (or a professional
golfer of similar standing) to endorse and promote the Web Site during the
Initial Period.
7.2 CNBC Sports shall negotiate with the US Channel to procure promotional
exposure for the Web Site at NBC Sports events including the events known
as "The Skills Challenge" on terms to be agreed.
7.3 CNBC Sports and BHL shall negotiate in good faith regarding a possible
barter arrangement for the provision by BHL of branded merchandise in
exchange for the provision by CNBC Sports of airtime exposure for the Web
Site, BHL or BHL's associated brands on terms to be agreed.
7.4 CNBC Sports and BHL shall negotiate in good faith regarding possible
arrangements for promotional exposure of the Web Site, BHL or BHL's
associated brands at golf tournaments managed by CNBC Sports during the
Initial Period including the World Cup of Golf and the Ladies Irish Open
on terms to be agreed.
7.5 CNBC Sports shall use its reasonable endeavours to establish linking and
affiliation arrangements between the Web Site and the planned Internet
portal web site currently known as the "Sportal" to be owned and operated
by Pangolin UK Limited or any of its Associates ("PANGOLIN").
8. COMPETING SERVICES
8.1 In this Agreement:
(a) "THE BH PARTIES" shall mean Focused Media and/or BHL (as the context
may require);
(b) "ASSOCIATE" of any party shall mean any person controlling,
controlled by or under common control with that person. For this
purpose "control" means the power of a person (directly or
indirectly) to direct or cause direction of the management and
policies of any other person or the ownership (directly or
indirectly) of more than fifty (50) per cent of the equity or
capital of or the voting power in any other person.
8.2 BHL and Focused Media each hereby agrees and undertakes that during the
term of this Agreement neither it nor any of its Associates shall without
the prior written consent of CNBC Sports, such consent not to be
unreasonably withheld, promote the Web Site on, or enter into any
promotional arrangements which are similar to any of those set out in this
Agreement with, any television channel which is a direct competitor of
either of the Non-US Channels or the broadcaster of either of the Non-US
Channels including but not limited to the television channels or services
currently known as Eurosport and Star/ESPN
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8.3 CNBC Sports agrees that during the continuance of this Agreement it shall
not enter into arrangements similar to those set out in this Agreement
with any other golf-based web site other than the web site currently known
as "Xxxx.xxx" (an NBC Sports web site) and those operated from time to
time by Pangolin.
9. TERM
9.1 The term of this Agreement shall commence upon the date of execution of
this Agreement and shall continue for three (3) years unless terminated in
accordance with this Clause or Clause 10.
9.2 CNBC Sports or the BH Parties shall also have the right to terminate this
Agreement forthwith by giving written notice to the Defaulting Party at
any time after the occurrence of any of the following events:
(a) the presentation of a petition for the winding up or administration
of the Defaulting Party, (other than for the purposes of
amalgamation or reconstruction not involving an insolvency only or
which is discharged within seven (7) days of presentation) or the
passing of a resolution for the winding-up of the Defaulting Party;
or
(b) the appointment of, or notice being given of the intended
appointment of, a receiver (including an administrative receiver) or
manager or administrator of the Defaulting Party of any of its
assets or the taking of any step by any other party to propose or
make any arrangement, composition or compromise with its creditors;
or
(c) any material or persistent breach of this Agreement or of any of the
terms, conditions, covenants, warranties, undertakings or other
provisions hereof by the Defaulting Party which is not capable of
remedy or which if capable of remedy remains unremedied for thirty
(30) days after written notice specifying such breach has been
given by the terminating party.
For the purposes of this Clause, the "DEFAULTING PARTY" shall mean any of
the BH Parties (in the case of a lawful termination by CNBC Sports) or
CNBC Sports (in the case of a lawful termination by the BH Parties).
9.3 In the event of a failure by any party to adhere to any of the terms of
this Agreement, any of the remaining parties shall (in addition to any of
its other rights and remedies) be permitted to suspend the operation of
any of the terms of this Agreement in whole or in part.
10. FORCE MAJEURE
No party shall be liable to any of the others for any failure to perform
its obligations under this Agreement to the extent that such failure is
caused by an event of Force Majeure. If CNBC Sports or any of the BH
Parties is prevented by any such event of Force Majeure from performing
any of its material obligations under this Agreement
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for a period of sixty (60) consecutive days, the BH Parties (in the case of
CNBC Sports being so prevented) or CNBC Sports (in the case of any of the
BH Parties being so prevented) shall be entitled to terminate this
Agreement without liability. For the purposes of this Agreement, "FORCE
MAJEURE" shall mean any event or cause not within the control of the party
affected by it including (but not by way of limitation) accident or
breakdown of any satellite or any other equipment or apparatus (caused
otherwise than by the wrongful act, neglect or default of that party, its
servants or agents), Act of God, flood, fire, war, riot, rebellion, civil
commotion, strike, lock-out or other industrial dispute or action, Act of
Parliament, any act, order, direction or regulation of any government or
any public local or regulatory authority or imposition of government
sanction, embargo or similar action, law, judgment, order, decree, embargo
or blockade.
11. NOTICES
All communications relating to this Agreement shall be in writing and
delivered by hand or by facsimile to the party concerned at the relevant
address shown at the start of this Agreement (or such other address as may
be notified from time to time in accordance with this Clause 11 by the
relevant party to the other party). Any such communication shall take
effect upon delivery if delivered on a business day (that is, any day other
than a Saturday, Sunday or a day which is a national public holiday in
England) and during business hours, otherwise upon the next business day,
or if by facsimile, upon the date and time noted on the transmission
receipt.
12. TAXES
Any payment due from, or any taxable supply of goods or services made by,
any party pursuant to this Agreement, is expressed exclusively of Value
Added Tax or any other sales tax at the rate from time to time in force (if
applicable) which the paying party shall also pay and the parties hereby
waive any right of set-off which they may have in respect of such payment
whether arising at law or in equity.
13. CONFIDENTIALITY
Each party represents, warrants and undertakes to the other that it will
not without the prior written consent of the other party, such consent not
to be unreasonably withheld, disclose to any third party, other than to any
entity controlling or under common control with, such entity or its
professional advisers or as required by law or as agreed between the
parties, any information relating to the specific terms of this Agreement
or any information relating to the business or affairs of the other parties
PROVIDED, HOWEVER, that this obligation shall not apply to any information
that is (a) in the public domain; (b) received from a third party without
reasonable basis for the disclosing party to believe disclosure was made in
violation of a confidential agreement with the other party; (c) published
or otherwise made available to the public at the time of its receipt by the
disclosing party, or subsequently became
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published or available to the public other than by a breach of the
obligation set forth in this Clause 13; or (d) required or requested to be
disclosed by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process or by
written advice of counsel to disclose such information. The obligations set
forth in this Clause 13 shall survive for a period of five (5) years after
the effective date of any earlier termination of this Agreement in
accordance with Clause 9.
14. GOVERNING LAW
14.1 This Agreement shall be governed by and construed in all respects in
accordance with English law and it is irrevocably agreed that the courts of
England are to have jurisdiction to settle any disputes which may arise out
of or in connection with this Agreement and that accordingly any suit,
action or proceeding arising out of or in connection with this Agreement
(hereinafter referred to as "PROCEEDINGS") may be brought in such courts.
Nothing in this Clause shall limit the right of any party to take
Proceedings against another party in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction,
whether concurrently or not.
14.2 Each party irrevocably waives (and irrevocably agrees not to raise) any
objection which it may have (whether now or subsequently) to the laying of
the venue of any Proceedings in any such court as is referred to in this
Clause.
14.3 BHL and Focused Media appoint [ ] as their authorised agent in England
and Wales for the purpose of accepting service of process for all purposes
in connection with this Agreement.
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