AGREEMENT
THIS AGREEMENT (the "Agreement") is made and is effective as
of the 30th day of March, 1998, by and between Video News Wire Corporation, a
Florida corporation ("Video News") and P.R. Newswire, Inc., a Delaware
corporation ("PR Newswire" and Video News sometimes individually referred to as
"Party" and collectively as "Parties").
RECITALS
A. Video News produces, develops, markets, stores and maintains
full-motion digitized video clips ("Video News Wires" or "VNWs") of an
entity's written press releases, as well as corporate identity and
other market materials.
B. PR Newswire operates a specialized news and information service,
processing and transmitting press releases and other information over
electronic communications systems to news media and others throughout
the United States and overseas and services investor relations, public
relations and other communications professionals (the "Clients").
C. PR Newswire wishes to engage Video News to perform certain services
which include, among other things, the production of VNWs for certain
Clients and Video News wishes to be engaged by PR Newswire to provide
such services, pursuant to the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the promises and mutual
covenants and agreements contained herein, the Parties mutually agree as
follows:
1. Recitals. The recitals set forth above are true, correct
and are herein incorporated by reference.
2. Engagement. PR Newswire hereby engages Video News to
perform the services pursuant to the terms and conditions set forth herein and
Video News hereby accepts such engagement.
3. Services to be Provided by Video News ("Video News
Service"). Video News shall use its reasonable best efforts to:
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a. create specific outline and format requirements for
production of VNWs for Clients;
b. obtain copies of the final press announcement from PR
Newswire that will be the subject matter of a VNW for a Client;
c. obtain from a Client contracting for a VNW all required
components necessary for the production of that VNW;
d. manage the production process of a VNW for a Client;
e. videotape and produce a VNW using professional talent and
in a format which is of broadcast quality;
f. meet required production schedules, as mutually agreed upon
between Video News and a Client;
g. digitize and store all VNWs at a protected location on the
Internet for Client review and approval;
h. store each VNW for a period of time as agreed upon in
writing between Video News and a Client, at the Video News Wire
Internet site for dissemination by PR Newswire's website and other
hyperlinks;
i. provide access to each VNW and emergency technical support
to Clients twenty-four (24) hours a day, seven days a week, and provide
standard technical support, as required to meet Clients' reasonable
standards; and
j. maintain client satisfaction by using reasonable efforts to
investigate and implement the latest technologies, such as satellite
delivery systems, to acquire video footage from around the world.
4. Services to be Provided by PR Newswire. PR Newswire shall
use its reasonable best efforts to:
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a. create marketing collaterals for the VNWs in collaboration
with Video News.
b. promote the Video News Service to all PR Newswire sales and
marketing personnel, in order that they promote and market same to
Clients;
c. provide materials to PR Newswire domestic and international
sales staff, in existing and future bureau locations, to market and
sell the Video News Service to Clients;
d. develop and maintain Client relationships for the VNWs;
e. present and market the Video News Service to PR Newswire's
Clients through any or all of PR Newswire's offices and sales
representatives nationwide.
f. develop an incentive plan for PR Newswire sales personnel
marketing and selling VNWs to increase sales performance (the amount
and terms of which shall be in PR Newswire's sole discretion, but shall
not impact the pricing of the Video News Service paid to Video News, as
described in Section 7 and Exhibit A of this Agreement);
g. invoice and collect all revenues generated in connection
with the VNWs;
h. remit payments due to Video News hereunder for all sales
and storage of VNWs to Video News on a monthly basis, as described in
this Agreement;
i. prepare all contracts and other documents between each
Client and PR Newswire on substantially the form approved by PR
Newswire and Video News, or, in the case of material deviations from
the approved form, subject to final approval by Video News, which
approval shall not be unreasonably withheld;
j. advise Video News on suggested product enhancements and
further product development recommendations;
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k. provide assistance in determining volume forecasts to Video
News.
5. Duties and Obligations of a Client. As set forth in a
definitive agreement between PR Newswire and each Client who will contract for a
VNW, each Client shall be responsible to:
a. provide timely submittal of approved copy to Video News for
all requested VNWs;
b. provide timely approval of the final form of VNW;
c. provide photographs, video clips and/or logos, when
appropriate, for inclusion in the VNW (subject to such Client retaining
ownership thereof);
d. provide advance notices, when appropriate, for on-location
video acquisitions.
6. Grant of License to the VNWs. Video News grants to PR
Newswire and each Client contracting for a VNW a right and license (the
"License") to (i) broadcast each VNW via the Internet at the Video News or PR
Newswire website pursuant to the terms and conditions set forth in this
Agreement and in each agreement with a Client relating to VNWs and (ii) use a
VNW in connection with marketing, public relations or otherwise, as more fully
set forth in each agreement with a Client relating to VNWs. It is contemplated
that agreements with Clients will provide (x) that at such time as Video News
shall have received all fees due in connection with the applicable VNW, the
applicable Client shall be granted a fully paid up License for the life of
copyright to broadcast each VNW via the Internet at the Video News, PR Newswire
or Client website, and (y) that the Client shall not be permitted, either during
or following expiration of the Term of this Agreement, to store the VNW on the
server of any third party other than through Video News, or, during the Term of
this Agreement, or thereafter if and only if a Post-Term Purchase (as defined in
Section 10d) shall occur, PR Newswire. Video News and PR Newswire will work
together in good faith to develop and, from time to time, modify a form of
agreement with Clients appropriately delineating the rights of the Clients, PR
Newswire and Video News in the VNWs in order to facilitate the marketing of the
VNWs and other services contemplated by this Agreement.
7. Pricing of Services Related to the VNWs. The prices of the
Video News Services to be charged to PR Newswire by Video News in connection
with the production and storage of VNWs are as set forth on Exhibit "A", as the
same may be modified from time to time by Video News, upon not less than one
hundred five (105) days prior written notice to PR
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Newswire; provided, however, that no price increase initiated during the initial
term or any renewal term of this Agreement shall be effective prior to
commencement of the next renewal term of this Agreement. PR Newswire shall, in
its discretion, determine the price of VNWs to Clients.
8. Payment for Services. Within thirty (30) days following
each month and within thirty (30) days from the date of termination of this
Agreement, PR Newswire shall pay to Video News, in U.S. Dollars, the amounts due
to Video News for the previous month. For purposes of this Agreement, payments
due to Video News by PR Newswire shall accrue at the time when Video News has
delivered the applicable completed VNW or otherwise completed the contracted
work.
9. Ownership of VNWs.
a. PR Newswire acknowledges that the VNWs are
original works of authorship, fixed in tangible form, and Video News
owns the VNW and all other unedited footage (that was videotaped by
Video News) and reserves all right, title and interest in and to the
copyright, the right to apply for copyright registration, broadcast or
other derivative rights of the VNW. It is agreed that nothing contained
in this Agreement shall be construed as an assignment or grant of any
right, title or interest in or to any VNWs, it being understood that
all rights relating thereto are reserved by Video News, except for the
license hereunder to PR Newswire of the right to use and utilize each
VNW as specifically and expressly provided in this Agreement and except
for the rights to be specifically granted to each Client pursuant to
the applicable Agreements between PR Newswire and the Clients. PR
Newswire's use of the VNWs shall inure to the benefit of Video News and
PR Newswire shall not at any time acquire any rights in any of the VNWs
by virtue of any use PR Newswire may make of such VNWs, and which shall
specifically include any proprietary rights originated, conceived,
created or developed by PR Newswire or with the assistance of others,
as a result of the VNWs. Upon Video News' request, PR Newswire shall
execute the document or documents necessary to evidence such ownership
interest of Video News in any rights or title set forth in this Section
9.
b. Sections 6 and 9a notwithstanding, Video News
neither asserts nor claims any right to the content contained in the
VNWs and shall not use any VNW in any manner other than as contemplated
by this Agreement or by agreements with Clients, without the prior
written consent of PR Newswire, which, subject to the terms of the
applicable Client agreement, shall not be unreasonably withheld.
10. Term and Termination.
a. Subject to the provisions of Section 10b, the
initial term of this Agreement shall be for eighteen (18) months. This
Agreement shall be automatically
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renewed for successive additional one (1) year periods, unless a
terminating party provides the non-terminating party not less than
ninety (90) days prior written notice of its intent to terminate this
Agreement prior to the expiration of any term or renewal thereof. For
purposes of this Agreement "Term" includes the initial term and any
renewals thereof.
b. This Agreement and the Term may be terminated as
follows:
(1) By the unaffected Party without
liability at any time upon seven (7) days prior written notice upon the
happening of any of the following events:
(a) A Party ceases to function as a
going concern or to conduct its operation in the normal course of business,
(b) A Party becomes involved in
financial difficulties resulting in the appointment of a receiver or trustee,
establishment of a moratorium for the payment of indebtedness, a petition in
bankruptcy or an assignment on behalf of a Party's creditors, or
(2) If any Party commits a material breach
of any provisions of this Agreement, a non-breaching Party may terminate the
Agreement at any time, if after providing written notice to the breaching Party
of the alleged breach or failure, the breach or failure remains uncured for a
period of thirty (30) business days after receipt of such notice; provided,
however, that a Party shall not be entitled to more than one cure period for the
same or similar categories of breaches during the initial or any renewal Term of
this Agreement. Subject to Section 14 hereof, failure by Video News to (x) meet
production schedules, or (y) provide access to each VNW and emergency technical
support to Clients twenty four (24) hours a day, seven days a week and provide
standard technical support, as required, to meet Clients' reasonable standards,
shall be deemed to be material breaches of this Agreement; provided, however,
that the sole remedy for such deemed breaches shall be termination of this
Agreement in accordance with this paragraph 10.
c. Promptly after completion of the first 120 days of
the Term, the Parties shall agree in writing on minimum volume levels
which PR Newswire will use its reasonable best efforts to achieve.
Subject to Section 14 hereof, failure by PR Newswire to meet such
volume levels mutually agreed in writing shall be deemed to be a
material breach of this Agreement; provided, however, that the sole
remedy for such deemed breach shall be termination of this Agreement in
accordance with this paragraph 10.
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d. Subject to written commitments with Clients in
substantially the form approved by Video News, and the next sentence of
this Section 10c, after termination of this Agreement, PR Newswire
shall have no further express authorization or consent from Video News
to use any VNW in any manner whatsoever. Notwithstanding the foregoing,
at PR Newswire's request, Video News will negotiate in good faith with
PR Newswire to extend to PR Newswire, following expiration or
termination of this Agreement, a perpetual license to broadcast each
VNW completed prior to expiration or termination of this Agreement via
the Internet on commercially reasonable terms and conditions (a "Post
Term Purchase").
11. Exclusivity and Nondisclosure of Information.
a. Exclusivity. During the Term of this Agreement (i)
PR Newswire shall use Video News as its exclusive vendor for the
production of VNWs of written Client press releases (including video
taping of footage solely for use in such VNWs) and for the internet
storage and the internet distribution of VNWs of Clients' written press
releases, and (ii) Video News shall not produce VNWs of any entity's
written press releases or provide internet storage and/or internet
distribution of VNWs of written press releases for any entity other
than PR Newswire or Clients of PR Newswire pursuant to this Agreement.
During the Term, PR Newswire shall recommend to its Clients Video News
as its preferred vendor for other services contemplated here by, such
as corporate video profiling, "About the Client" videos and on location
video taping for meetings, conferences and new product introduction;
provided, however, that it is understood and agreed that the
relationship between Video News and PR Newswire is non-exclusive in
respect of (and that PR Newswire shall have the right to deal with
third parties in respect of) multimedia content, multimedia
presentations and all services contemplated by this Agreement other
than the production, internet storage and internet distribution of VNWs
of written press releases as set forth in this Section 11a. Nothing
herein shall restrict Clients from providing footage or other content
(including, without limitation, any video or multimedia presentation)
not taped or produced by Video News for inclusion in VNWs hereunder,
and in such event, PR Newswire and Video News will have the capability
to link to the applicable site and Video News shall not acquire any
ownership interest in any such Client-provided footage or other
content.
b. Nondisclosure of Information.
(1) Each Party acknowledges that the other
Party's trade secrets, private or secret processes, methods and ideas, as they
exist from time to time, customer lists and information concerning the other
Party's products, services, training methods, development, technical
information, marketing activities and procedures, credit and financial data
concerning each Party's clients (for the purposes of this Section 11b only,
"Proprietary Information") are valuable, special and unique assets of a Party,
access to and knowledge of
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which are essential to the performance of each Party. In light of the highly
competitive nature of the industry in which a Party's business is conducted,
each Party agrees that all Proprietary Information, heretofore or in the future
obtained by each Party as a result of a Party's association with the other Party
shall be considered confidential. Without limiting the generality of the
foregoing, Video News acknowledges and agrees that Client press releases, prior
to the applicable Client's release thereof, are confidential and constitute
"inside information" under applicable securities laws, and Video News shall
maintain the confidentiality thereof in accordance with applicable securities
laws, until 15 minutes after the applicable Client's public release thereof.
(2) In recognition of this fact, each Party
agrees that it will never use or disclose any such Proprietary Information for a
Party's own purposes or for the benefit of any person or other entity or
organization (except as contemplated by this Agreement) or unless a Party is
legally required to disclose such Proprietary Information. Documents prepared by
each Party or that come into a Party's possession during a Party's association
with the disclosing Party are and remain the property of the disclosing Party,
and upon the termination of this Agreement, such documents shall be returned to
the other Party at their respective principal place of business as herein noted.
(3) This Agreement shall not preclude either
Party from making disclosures of proprietary matters to any Client; provided,
however, that any such matters disclosed or delivered to the Client shall be
appropriately marked with restrictive legends in accordance with applicable
federal or state regulations. It is further understood that each Party, upon
notifying the other Party, may disclose to any of its parent companies or
subsidiaries in connection with the efforts contemplated by this Agreement, any
matter made available by the disclosing Party under this Agreement, provided
that each parent company or subsidiary, prior to such disclosure, agree in
writing to be bound by the provisions of this Section 11 and such Party shall
cause any parent company or subsidiary to comply with the provisions of this
Section 11.
(4) Upon termination of this Agreement, each
Party shall, within thirty (30) days of termination, if requested, return all
writings that reflect or embody the Proprietary Information.
(5) The obligations with respect to use,
disclosure, and access to the Proprietary Information of each Party set forth in
this Agreement are not applicable to the following:
(a) Information that was or is
lawfully made available to the public without restriction by the disclosing
Party or lawfully by a third party; or
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(b) Information that was lawfully
previously known to the receiving Party independent of any disclosure by
disclosing Party or its Clients.
Each Party agrees to keep confidential all terms and conditions of this
Agreement; provided, however, such obligation shall not apply to information
which (1) is required by law to be disclosed, or (2) is disclosed in any action
between the Parties hereto.
c. Nonsolicitation. Each Party agrees that during the
Term and for a period of one year thereafter, it shall not, for itself,
or on behalf of any other person, or by action in concert with any
other person, solicit, induce or encourage any employee of the other
Party or any of their respective affiliates to terminate his or her
employment with such Party or such affiliate. Video News acknowledges
that PR Newswire's Client list is Proprietary Information. Without
limiting the generality of Section 11b hereof, and in addition to any
obligations Video News may have under applicable law, Video News agrees
that during the Term and, if Video News is the Party electing not to
renew the Term, for a period of six months following expiration of the
Term, Video News shall not, for itself or on behalf of any other
person, or by action in concert with any other person, solicit, induce
or encourage any PR Newswire Client to discontinue, terminate, cancel
or refrain from entering into any agreement, contract or other
arrangement or relationship with PR Newswire or sell or attempt to sell
VNWs to any PR Newswire Client. For the avoidance of doubt, if PR
Newswire is the Party electing not to renew the Term, the obligations
of Video News set forth in the preceding sentence shall terminate upon
expiration of the Term.
d. Remedies. Each Party acknowledges and agrees that
the non-breaching Party's remedy at law for a breach or threatened
breach of any of the provisions of this Section 11 would be inadequate
and the breach shall be per se deemed as causing irreparable harm to
the non-breaching Party. In recognition of this fact, in the event of a
breach by a Party of any of the provisions of this Section 11 the
breaching Party agrees that, in addition to any remedy at law available
to the non-breaching Party, including, but not limited to monetary
damages, the non-breaching Party, without posting any bond, shall be
entitled to obtain, and the breaching Party agrees not to oppose the
non-breaching Party's request for equitable relief in the form of
specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be
available to the non-breaching Party.
12. Indemnification.
a. PR Newswire shall indemnify and hold Video News
harmless from and against, and shall be responsible or liable for, any
claims, liabilities, damages, losses and costs (including reasonable
attorneys' fees), arising out of any breach by PR Newswire of this
Agreement.
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b. Video News shall indemnify and hold PR Newswire
harmless from and against, and shall be responsible or liable for, any
claims, liabilities, damages, losses and costs (including reasonable
attorneys' fees), arising out of any breach by Video News of this
Agreement.
c. NEITHER PARTY HEREUNDER SHALL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSSES OR
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS.
13. Relationship of the Parties. The relationship of the
Parties hereto shall be that of independent parties to this Agreement. Nothing
in this Agreement shall be construed to place the parties in the relationship of
partners, joint venturers or agents, and no Party shall have the power to
obligate or bind any other Party in any manner whatsoever nor shall any Party
have or be deemed to have any fiduciary obligations to any other Party.
14. Force Majeure. If a Party is prevented from performing any
of its obligations set forth in this Agreement by reason of an act of God,
strike, labor dispute, injunctions, judgments, adverse claims, fire, flood,
embargo, delay in transportation, public disaster or any other cause or reason
beyond the control of a Party, as the case may be, such condition shall be
deemed a valid excuse for failure on its part to perform or for delay in the
performance of such obligations.
15. Miscellaneous Provisions.
a. Notices. Any notice required or permitted to be
given under the terms of this Agreement shall be sufficient if in
writing and if sent postage prepaid by registered or certified mail,
return receipt requested; by overnight delivery; by courier; or by
confirmed telecopy, addressed as follows:
PR Newswire: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxx Xxxxxxx
Video News: Video News Wire Corporation
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
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b. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but
all of which shall constitute but one agreement.
c. Binding Effect/Assignment. This Agreement shall
not be assignable by any other Party without the prior written consent
of the other Party, except to an affiliate, successor by merger or
acquiror of all or substantially all of the assets of PR Newswire;
provided that in the event that this Agreement shall be assigned, the
assignor shall remain liable hereunder and any assignee shall be
obligated to the terms and conditions set forth in this Agreement and
any agreement or assignment to the contrary shall be null and void,
unless agreed to, in writing, by the non-assigning Party to this
Agreement and the assignee.
d. Survival. The provisions of Section 11b, c and d
shall survive the expiration or termination of this Agreement.
e. Completeness and Modification. This Agreement
constitutes the entire understanding between the parties and supersedes
and cancels any and all previous agreements and understandings between
the Parties pertaining to the subject matter of this Agreement. This
Agreement may be amended, modified, superseded or canceled, and any of
its terms, covenants, representations, warranties or conditions may be
waived, only in writing signed by duly authorized representatives of
both Parties.
f. Waiver. The waiver of a breach of any term or
condition of this Agreement shall not be deemed to constitute the
waiver of any other breach of the same or any other term or condition.
g. Severability. The invalidity or unenforceability,
in whole or in part, of any covenant, promise or undertaking, or any
section, subsection, paragraph, sentence, clause, phrase or word or of
any provision of this Agreement shall not affect the validity or
enforceability of the remaining portions hereof.
h. Choice of Law; Venue. This Agreement shall become
valid when executed by both Parties. The Parties agree that this
Agreement shall be deemed made and entered into in the State of New
York and shall be governed and construed under and in accordance with
the laws of the State of New York and applicable Federal Statutes,
without giving effect to any conflicts of law principles. In the event
of any action brought to interpret or enforce this Agreement, (x) such
action shall be brought only in Broward County, Florida, if PR Newswire
is the plaintiff, and (y) such action shall be brought only in New York
County, New York, if Video News is the plaintiff. THE PARTIES STIPULATE
AND AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL.
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i. Construction. This Agreement shall be construed
within the fair meaning of each of its terms and not against the Party
drafting the document.
j. First Refusal. "Change of Control" means (i) the
issuance or transfer (in a single transaction or a series of related
transactions) of 25% or more of the outstanding capital stock of Video
News entitled to vote for the election of directors to a person or
persons who are not shareholders of Video News on the date hereof, (ii)
the sale of all or substantially all of the assets of Video News (in a
single transaction or a series of related transactions) to a person or
persons who are not affiliates of Video News on the date hereof, or
(iii) the merger or consolidation of Video News with a person that is
not an affiliate of Video News on the date hereof. If, at any time
during the Term, Video News desires to enter into any transaction which
would constitute a Change of Control, Video News shall first offer to
enter into the Change of Control transaction with PR Newswire, and
shall enter into exclusive, good faith negotiations with PR Newswire
for such transaction for a period of 60 days from the date of receipt
in writing of such offer to enter into the Change of Control
Transaction. If PR Newswire and Video News are unable to agree on the
terms for a Change of Control transaction within 60 days after
commencement of good faith negotiations, Video News may enter into
negotiations with third parties regarding such transaction. Video News
shall give PR Newswire prompt written notice of the terms of any third
party offer to engage in a Change of Control transaction on terms that
are more favorable to Video News than the last terms offered by PR
Newswire, Video News shall have the right to accept such third party's
offer. If a third party offers to engage in the Change of Control
transaction or to purchase the assets on terms that are not more
favorable to Video News than the last terms offered by PR Newswire, PR
Newswire shall have the right to engage in the applicable transaction
on the terms of such third party's offer; provided that such right
shall be exercised by written notice from PR Newswire to Video News,
given within 15 business days after receipt by PR Newswire of a copy of
such third party offer.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth in the first paragraph of this Agreement.
VIDEO NEWS WIRE CORPORATION
By: _______________________________
Name: ______________________________
Its: _______________________________
PR NEWSWIRE, INC.
By: _______________________________
Name: ______________________________
Its: _______________________________
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