AMENDMENT AND WAIVER AGREEMENT
Exhibit
4.5
THIS
AMENDMENT AND WAIVER AGREEMENT
(this
“Agreement”)
dated
as of October 6, 2008, is entered into among Medialink Worldwide Incorporated,
a
Delaware corporation (the “Company”)
and
the undersigned holder (the “Holder”)
of the
Company’s Variable Rate Convertible Debenture due November 9, 2009 (the
“Debenture”).
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement (as defined below)
or
the Debenture.
WHEREAS,
pursuant to that certain Securities Purchase Agreement (the “Purchase
Agreement”),
dated
as of November 8, 2004, among the Company, the Holder, and the other holders
of
the Debentures (collectively with the Holder, the “Holders”),
the
Company issued Debentures in the aggregate principal amount of $5 million;
and
WHEREAS,
the
Company has requested that the Holder agree to certain waivers and amendments
under the Transaction Documents, and the Holder has agreed to such request,
subject to the terms and conditions of this Agreement;
NOW
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Holder and the Company hereby agree as follows:
1. Prepayment
of Holder’s Debenture.
(a) The
Company shall prepay in cash to the Holder, the Holder’s pro rata share of $1.7
million principal amount of the Debentures (the “Permitted
Prepayment”)
no
later than three (3) business days after the Effective Date (the “Permitted
Prepayment Date”).
The
Permitted Prepayment shall be applied to reduce a portion of the then
outstanding principal amount of the Holder’s Debenture in the allocable
percentage amounts to the Holder set forth on Schedule
1
attached
hereto (the “Disbursement
Instructions”).
Failure to make the Permitted Prepayment in full on or before the Permitted
Prepayment Date shall be an Event of Default under the Holder’s
Debenture.
(b) The
Company and the Holder hereby agree that no later than the Permitted Prepayment
Date the Company shall prepay the Holder’s pro rata share of $300,000 of
interest on the Debentures, in cash, which shall account for the interest due
for the 15-month period subsequent to the Permitted Prepayment Date (the
“Prepaid
Interest”).
Notwithstanding anything contained in this Section 1(b) to the contrary, the
Company shall timely pay all interest that accrues to the Holder through the
Permitted Prepayment Date and this Section 1(b) shall not be construed as a
waiver by the Holder of such interest payments. Failure to make such payment
in
full on or before the Permitted Prepayment Date shall be an Event of Default
under the Holder’s Debenture.
(c) Each
such
prepayment of the principal amount and interest on the Holder’s Debenture shall
be paid to the Holder pro-rata based upon the outstanding principal amount
of
Holder’s Debenture held by the Holder on the date hereof, all as set forth in
the Disbursement Instructions.
(d) Upon
the
satisfaction of the conditions set forth in Section 10 hereof, the agreements,
waivers and amendments contained in Sections 1(a), 1(b), 3 through and including
7, and 9 shall become effective and such date shall be the “Effective
Date”.
2. Ratifications.
The
Company hereby confirms and agrees that, except as otherwise expressly provided
herein, the Purchase Agreement and each other Transaction Document is, and
shall
continue to be, in full force and effect and is hereby ratified and confirmed
in
all respects, except that on and after the Effective Date (i) all references
in
the Purchase Agreement to "this Agreement", "hereto", "hereof", "hereunder"
or
words of like import referring to the Purchase Agreement shall mean the Purchase
Agreement as amended by this Agreement, and (ii) all references in the
other Transaction Documents to the "Securities Purchase Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Purchase
Agreement shall mean the Purchase Agreement as amended by this
Agreement.
3. Extension
of Maturity Date.
Effective as of the Effective Date, the Company and the Holder hereby agree
that
the “Maturity Date” of the Holder’s Debenture as to the remaining principal
amount outstanding after the application of the Permitted Prepayment shall
be
extended until June 30, 2010.
4. Amendment
of Default on the Holder’s Debenture.
Effective as of the Effective Date, the Company and the Holder hereby amend
Section 8(a)(v) and Section 8(a)(vi) of the Holder’s Debenture to provide that
all references to “Subsidiary” therein shall exclude TTX (US) LLC, a New York
limited liability company, TTX Limited, a United Kingdom entity and Medialink
UK
Limited (collectively, the “Excluded
Subsidiaries”).
Such
exclusion shall only apply to Sections 8(a)(v) and 8(a)(vi) of the Debenture
and
to no other Events of Default or provisions under the Transaction Documents.
In
the event of a sale of assets, liquidation, dissolution, reorganization or
similar event of an Excluded Subsidiary that results in the Company receiving
net proceeds in excess of $750,000 in the aggregate or in excess of $1.25
million in the aggregate, such excess proceeds shall be applied 50% or 100%,
respectively, to the repayment of the Debentures. Additionally, the definition
of “Subsidiary” under the Transaction Documents is hereby amended to include any
future formed subsidiaries of the Company or any subsidiary of the Company
which
would be covered by Sections 8(a)(v) and 8(a)(vi) of the Debenture. The Company
agrees to honor all guarantees or co-obligations that it has of the Excluded
Subsidiaries’ obligations.
5. Amendment
to Sections 1 and 8(a)(vii) of the Holder’s Debenture.
Effective as of the Effective Date, the Company and the Holder hereby agree
that
the term “Trading Market” as defined in Section 1 and used in Section 8(a)(vii)
of the Holder’s Debenture shall be deemed to include the OTC Bulletin Board
(but, specifically, not the “pink sheets” published by Pink Sheets
LLC).
6. Amendment
to Section 8(a)(viii) of the Holder’s Debenture.
Effective as of the Effective Date, the Company and the Holder hereby amend
Section 8(a)(viii) of the Holder’s Debenture to replace it in its entirety with
the following:
“subsequent
to the Effective Date, the Company shall be a party to any Change of Control
Transaction or shall agree to sell or dispose of 40% of its assets in one or
more transactions (whether or not such sale shall constitute a Change of Control
Transaction);”
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7. No
Default.
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(a)
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The
Company and the Holder hereby acknowledge that no Event of Default
under
Section 8(a)(viii) has heretofore occurred or is presently occurring
as of
the Effective Date.
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(b)
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The
Company represents that no other Events of Default have occurred
as of the
Effective Date.
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(c)
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The
Holder represents that it is not aware of any other Events of Default
having occurred as of the Effective
Date.
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8. Amendment
to Holder’s Warrants.
Subject
to NASDAQ having approved in writing the Warrant Repricing without requiring
approval of the Company’s shareholders (the “NASDAQ Approval”), the Company and
the Holder agree to amend the Exercise Price set forth in the introductory
paragraph and in Section 2(b) of the Warrant to $0.50 (the “Warrant Repricing”)
and the Holder hereby waives notice required to be given by the Company under
Section 3(e) of the Warrant. The Company shall use best efforts to obtain the
NASDAQ Approval. Notwithstanding the failure to obtain the NASDAQ Approval,
all
provisions of this Agreement with the exception of this Section 8 shall remain
in full force and effect.
9. Superiority
of Claims.
Notwithstanding anything contained in the Purchase Agreement or the Transaction
Documents to the contrary, the Company’s obligations under the Holder’s
Debenture shall,
pari
passu
with the
Company’s obligations under all of the Debentures, be superior to and shall take
precedence over any and all claims of creditors, including without limitation,
trade creditors to the Company’s collateral for the Company’s indebtedness. The
Company shall execute a security agreement in a form acceptable to the Holders
of the Debentures, wherein it shall grant each Holder a first lien security
interest in all of the Company’s assets heretofore and from time to time
hereafter received, securing the Company’s obligations under the Debentures, as
amended hereby.
10. Conditions
to Obligations Hereunder.
The
obligations hereunder are subject to the satisfaction of each of the following
conditions, provided that the conditions set forth in paragraph (c) are for
the
Holder's sole benefit and may be waived by the Holder at any time in its sole
discretion by providing the Company with prior written notice
thereof:
(a) The
Company shall have executed and delivered (i) the security agreement referred
to
in Section 9 above, (ii) any and all other documentation requested in order
to
perfect the security interest granted therein, including without limitation UCC
Financing Statements, provided that the Holders shall be responsible for any
UCC
filings, and (iii) an opinion of counsel to the effect that the security
interest granted therein shall constitute a valid first lien on the Company’s
assets.
(b) Each
of
the other Holders shall have (i) executed agreements similar in all respects
to
this Agreement (the “Other
Agreements”),
and
(ii) satisfied or waived all conditions to the closings contemplated by the
Other Agreements.
(c) The
representations and warranties of the Company hereunder shall be true and
correct in all material respects as of the date when made and as of the
Effective Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all respects with the covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied
or complied with by the Company at or prior to the Effective Date and after
giving effect to the terms of this Agreement and the Other Agreements, no Event
of Default shall have occurred and be continuing as of the Effective Date.
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11. Representations
and Warranties of the Company.
The
Company hereby makes the representations and warranties set forth below to
the
Holder as of the date of its execution of this Agreement:
(a) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company, its board
of directors or its stockholders in connection therewith. This Agreement has
been duly executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be
limited by applicable law.
(b) No
Conflicts.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not
and
will not: (i) conflict with or violate any provision of the Company’s
certificate of incorporation, bylaws or other organizational or charter
documents; or (ii) conflict with, or constitute a default (or an event that
with
notice or lapse of time or both would become a default) under, result in the
creation of any Lien upon any of the properties or assets of the Company in
connection with, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both)
of,
any material agreement, credit facility, debt or other material instrument
(evidencing Company debt or otherwise) or other material understanding to which
the Company is a party or by which any property or assets of the Company is
bound or affected; or (iii) conflict with or result in a violation of any law,
rule, regulation, order, judgment, injunction, decree or other restriction
of
any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property
or
asset of the Company is bound or affected.
(c) Equal
Consideration.
Except
as set forth in this Agreement, no consideration has been offered or paid to
any
person to amend or consent to a waiver, modification, forbearance or otherwise
of any provision of any of the Transaction Documents.
(d) Affirmation
of Prior Representations and Warranties.
Except
as set forth in the SEC Reports, the Company hereby represents and warrants
to
the Holder that the Company’s representations and warranties set forth in each
of the documents executed by the Company in connection with the Transaction
Documents are true and correct as of the date hereof.
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12. Representations
and Warranties of the Holder.
The
Holder hereby makes the representations and warranties set forth below to the
Company as of the date of its execution of this Agreement. The Holder represents
and warrants that (a) the execution and delivery of this Agreement by it and
the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on its behalf and (b) this Agreement has
been
duly executed and delivered by the Holder and constitutes the valid and binding
obligation of the Holder, enforceable against it in accordance with its terms
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
13. Public
Disclosure.
The
Company shall, as soon as practical and, in any event, within 4 Trading Days
of
the Effective Date, issue a Current Report on Form 8-K, reasonably acceptable
to
the Holder, disclosing the material terms of the transactions contemplated
hereby and attaching this Agreement as an exhibit thereto. The Company shall
consult with the Holder in issuing any other press releases with respect to
the
transactions contemplated hereby.
14. Effect
on Transaction Documents.
Except
as expressly set forth above, all of the terms and conditions of the Transaction
Documents shall continue in full force and effect after the execution of this
Agreement and shall not be in any way changed or modified by the terms set
forth
herein, including, but not limited to, any other obligations the Company may
have to the Holder under the Transaction Documents. Notwithstanding the
foregoing, this Agreement shall be deemed for all purposes as an amendment
to
any Transaction Document as required to serve the purposes hereof, and in the
event of any conflict between the terms and provisions of any other Transaction
Document, on the one hand, and the terms and provisions of this Agreement,
on
the other hand, the terms and provisions of this Agreement shall prevail.
15. Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holder. An e-mail intending to modify or amend
this Agreement shall not be binding upon the parties hereto.
16. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Purchase
Agreement.
17. Survival.
All
warranties and representations (as of the date such warranties and
representations were made) made herein or in any certificate or other instrument
delivered by it or on its behalf under this Agreement shall be considered to
have been relied upon by the parties hereto and shall survive for the applicable
statute of limitations.
18. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties hereto; provided, however,
that no
party may assign this Agreement or the obligations and rights of such party
hereunder without the prior written consent of the other parties
hereto.
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19. Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
20. Fees
and Expenses.
Each
party shall pay the fees and expenses of its advisers, counsel, accountants
and
other experts, if any, and all other expenses incurred by such party incident
to
the negotiation, preparation, execution, delivery and performance of this
Agreement.
21. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined pursuant to the Governing Law provision
of
the Purchase Agreement.
22. Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
23. Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
24. Entire
Agreement.
The
Agreement, together with the exhibits and schedules thereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
25. Independent
Nature of Holder’s Obligations and Rights.
The
obligations of the Holder hereunder are several and not joint with the
obligations of any other Holders executing similar agreements, and no Holder
shall be responsible in any way for the performance of the obligations of any
other Holder. Nothing contained herein or in any other agreement or document
delivered at any closing, and no action taken by the Holder pursuant hereto,
shall be deemed to constitute the Holder with the other Holders as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Holders are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
The Holder shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not
be
necessary for any other Holder to be joined as an additional party in any
proceeding for such purpose.
26. Legal
Fees.
By the
Permitted Prepayment Date, the Company shall pay Xxxxxxxx Investment Master
Fund
Ltd. $10,000 as reimbursement for legal fees incurred in connection with this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their proper and duly authorized officers as of the day and year
first above written.
COMPANY:
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MEDIALINK
WORLDWIDE INCORPORATED
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By:
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Name:
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Title:
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HOLDER:
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Name
of Holder: __________________________
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Signature
of Authorized Signatory of Holder:
__________________________
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Name
of Authorized Signatory: _________________________
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Title
of Authorized Signatory:
__________________________
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