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EXHIBIT 10.44
INTERNATIONAL REPRESENTATION AGREEMENT
This International Representation Agreement (the "Agreement") is made
and entered into the 14th day of September 1995 between Video Jukebox Network,
Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 (the "Company"), and
Communications Equity Associates, Inc., 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxx, Xxxxxxx 00000 ("CEA").
RECITALS:
A. The Company owns and operates a business which distributes music
video television programming known as "THE BOX" in the United States, the United
Kingdom and Puerto Rico.
B. CEA is engaged in the business of providing investment banking and
brokerage services to media companies in the United States and throughout the
world.
C. The Company desires to engage CEA to arrange Financing (as defined
in Section 2 hereof) for the Company and to assist the Company in the manner
described hereinafter in entering certain geographical markets located outside
of the United States, the United Kingdom and Puerto Rico, and CEA desires to
provide such services to the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The Recitals set forth hereinabove are incorporated herein
by reference and are and shall be deemed to be a part of this Agreement.
2. Engagement. The Company hereby engages CEA as its exclusive
representative for purposes of: (a) arranging equity, debt and/or hybrid
financing ("Financing") for the Company for the purposes of expanding the
international distribution of its programming outside of the United States, the
United Kingdom and Puerto Rico, subject to Section 5(a), (b) assisting the
Company in entering into certain geographical markets, which are designated by
the Company in writing to CEA, and (c) for such other purposes as are mutually
agreed to in writing by the Company and CEA. The Company makes no
representation, warranty, commitment or covenant that it will complete, execute
or enter into any transaction with any Prospect or expand its operations outside
of the United States, the United Kingdom and Puerto Rico.
3. Duties of CEA. CEA shall prepare informational material, if
necessary, regarding the Company's operations and/or projects to present to
individuals and entities ("Prospect(s)"), subject to Section 8 hereof. CEA shall
act as a liaison and intermediary between the Company and such Prospects. CEA
shall not be an agent of the Company and shall not bind or obligate the Company
in any way, without the Company's prior written consent. Both CEA and the
Company shall keep each other informed as to the status of contacts, discussions
and negotiations with Prospects. CEA shall use its best efforts and endeavor to
contact Prospects for Financing and to accomplish transactions on terms that are
acceptable to the Company, but CEA makes no representations regarding the
successful conclusion of any transaction. CEA may perform its services hereunder
through any person or entity that, directly or indirectly, CEA controls, is
controlled by CEA or is under common
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control with CEA. When assisting the Company in entering into certain
geographical markets designated in writing by the Company, other than the
countries identified in Section 5(b) hereof, the exact scope of CEA's engagement
for such market shall be mutually agreed upon in writing by the parties hereto
prior to the commencement of CEA's services with respect to such market. The
Company acknowledges that CEA may from time to time represent entities which may
be competitors with the Company or Prospects for a Financing. CEA, however,
shall not, without the Company's prior written consent, represent any Prospect
with regard to a Financing of the Company.
4. Term. The term of this Agreement commences on the date first written
herein above and terminates at the close of business on December 31, 1996 (the
"Term").
5. Compensation.
(a) Financing. If the Company or an entity in which the
Company has an equity interest (the "Financed Entity") enters into an agreement
for Financing ("Financing Agreement") during the Term or within eight (8) months
thereafter with a Prospect who, during the Term and prior to the consummation of
the Financing Agreement, was: (i) identified in writing to the Company by CEA
and (ii) approved in writing by the Company, then the Company shall pay to CEA a
fee in an amount equal to five percent (5%) of the total amount of the Financing
provided to the Financed Entity under the Financing Agreement. A Financing
Agreement may contemplate, without limitation, a direct or indirect loan, lease,
guarantee, stock exchange, joint venture, partnership, sale of assets,
contribution of programming on a non-cash basis, purchase of securities or any
other debt and/or equity investment. CEA's fee shall be paid in full to CEA on
the date of each closing under the Financing Agreement, as and when cash or
other consideration is received by the Company, by wire transfer of immediately
available United States funds to a bank account specified in writing by CEA. The
Company shall notify CEA in writing in advance of any closing of a Financing
Agreement so that CEA may attend such closing. CEA shall have reasonable access
to all closing documents and to any other materials necessary to ascertain and
collect its fee hereunder.
(b) Transactions in Certain Countries. The Company recognizes
the substantial effort and time that CEA has spent to assist the Company in
expanding the distribution of its programming to Australia, France, Holland and
Sweden (collectively, the "Countries"). During the Term, if the Company or a
Financed Entity consummates a joint venture agreement or, in the case of
Australia, a joint venture or an affiliation agreement with a major cable or
satellite operator, then the Company will be obligated to pay CEA the amount set
forth in the following table opposite each of the Countries:
Country U.S. Dollars
------- ------------
Australia $ 75,000
France $150,000
Holland $175,000
Sweden $175,000
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The Company acknowledges and understands that CEA shall not be required or
obligated in any respect to provide the Company with any additional services
with respect to the distribution of the Company's programming in any of the
Countries.
(c) CEA Assistance in Designated Markets. At the written
request and direction of the Company, CEA, with its written consent, shall
assist the Company on an ad hoc basis with respect to the Company's efforts to
expand the distribution of its programming in certain markets designated by the
Company. Prior to any such engagement, the Company and CEA shall negotiate in
good faith to reach an agreement on the specific scope of CEA's services and the
compensation to be paid to CEA with respect to such engagement.
(d) Research Assistance. At the written request and direction
of the Company, CEA, with its written consent, shall prepare research reports on
certain markets designated in writing by the Company. Prior to any such
engagement, the Company and CEA shall negotiate in good faith to reach an
agreement on the specific scope of CEA's services and the compensation to be
paid to CEA with respect to such engagement.
(e) Expense Reimbursement. Prior to commencing any of the
services to be provided by CEA hereunder, CEA and the Company shall agree in
writing on the maximum amount of out-of-pocket expenses of CEA which shall be
reimbursed by the Company. Reasonable expenses and costs incurred by CEA in
excess of the agreed-upon amount, which are supported by expense statements and
other reasonable supporting documentation, shall be reimbursed by the Company
upon the written pre-approval of the Chief Financial Officer of the Company. The
Company shall reimburse CEA up to the maximum amount of such agreed expenses
within thirty (30) days after receipt of an invoice and reasonable documentation
evidencing such expenses.
6. Confidentiality. Subject to (a) any legal requirements imposed on
CEA compelling disclosure and (b) disclosures to Prospects or their
representatives, CEA shall consider all information received from the Company as
proprietary and confidential, except to the extent that such information is
generally available to the public at large. Material non-public or confidential
information relating to the Company shall only be provided by CEA to Prospects
who have executed a confidentiality agreement, which is satisfactory to the
Company and includes the Company as a party to such agreement. Upon termination
of this Agreement, at the Company's written request, CEA shall cause all
Prospects either to destroy or to return to the Company all copies of documents
provided pursuant to this Agreement which contain proprietary and confidential
information relating to the Company. CEA acknowledges that nothing contained in
this Agreement shall be construed as creating in CEA any rights of ownership or
any property rights in any proprietary or confidential information of the
Company.
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7. Mutual Representations and Warranties.
(a) CEA warrants and represents that (i) CEA is and shall
remain during the Term licensed, if necessary, with all applicable governmental
agencies to provide the services to the Company set forth herein; (ii) it is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida, with all requisite power and authority to enter
into this Agreement and to carry out its obligation hereunder; (iii) this
Agreement has been duly authorized, executed and delivered and is a valid and
binding agreement; (iv) the consummation of the transactions contemplated herein
will not result in any breach of any of the terms or conditions of, or
constitute a default under, any indenture, agreement, or other instrument to
which CEA is a party, or violate any law or any order directed to CEA by any
court or any federal or state regulatory body or administrative agency having
jurisdiction over CEA, CEA's affiliates, or CEA's property.
(b) The Company warrants and represents that (i) it has full
authority and power to execute and perform this Agreement in accordance with its
terms; (ii) the execution or performance of this Agreement by the Company will
not violate any rights of, agreements with or obligations to any third parties;
(iii) the Company will comply with all applicable securities or other laws,
rules and regulations relating to the Agreement; and (iv) the Company will not
circumvent or otherwise frustrate the intent of this Agreement.
8. Covenants of CEA. CEA shall during the course of CEA's efforts to
assist the Company with respect to obtaining Financing (a): not make any untrue
statement of a material fact or omit to state a material fact required to be
stated or necessary to make any statement made not misleading concerning the
Company or its securities; (b) not offer or sell any securities of the Company
or of any Financed Entity by means of (i) any advertisement, articles, notice,
or other communication mentioning the securities, published in any newspaper,
magazine, or similar medium or broadcast over television or radio; or (ii) any
seminar or meeting, the attendees of which have been invited by any general
solicitation or general advertisement; and (c) only use sale materials which
have been approved in writing by the Company.
9. Mutual Indemnification. CEA and the Company each agree to indemnify
fully and forever each other and their affiliates and subsidiaries from any and
all losses, claims, damages, liabilities, costs and expenses arising from or
relating to the other party's breach of this Agreement, including, but not
limited to, all reasonable arbitration, attorneys' fees, collection and/or court
costs; provided, however, that the party seeking indemnification pursuant to
this Section 9 has not breached the terms of this Agreement or been grossly
negligent or engaged in willful misconduct in connection with such party's
obligations hereunder.
10. Public Announcements. Subject to the Company's prior written
approval, CEA shall have the right to publicly announce and/or advertise any of
the services provided to the Company hereunder. The Company shall mention the
role of CEA in key public announcements it may make regarding any completed
Financing hereunder.
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11. Controversies.
(a) In the event of any controversy arising out of or relating
to this Agreement or a breach or alleged breach hereof, which the parties are
unable to resolve among themselves, the parties shall resolve the dispute by
arbitration pursuant to the provision of 9 U.S.C. Sec. 1 et sec., and in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA"), by sending written notice to the other party to such
effect. The place of arbitration shall be Miami, Florida.
(b) In the event of arbitration, within thirty (30) days after
receipt of a request to arbitrate a dispute, the Company and CEA shall each
appoint one arbitrator, and within fifteen (15) days thereafter the two
appointed arbitrators shall select a third arbitrator. In the event the two
arbitrators are unable to agree on the selection of a third arbitrator, the two
arbitrators shall request the Federal District Court, Southern District of
Florida, to select such third arbitrator. If the Company or CEA shall fail to
make such appointment within such thirty (30) day period, the other party shall
be authorized to appoint the second arbitrator. All arbitrators shall be
impartial and unrelated, directly or indirectly, so far as employment or
services is concerned, to any of the parties hereto or to any person or entity
directly or indirectly related to the parties hereto. In any arbitration
proceedings involving any specialized area of knowledge or competence, the
arbitrators shall have substantial knowledge and experience in such specialized
area. The arbitration proceedings shall otherwise be governed by the rules of
the AAA then in force.
(c) The three arbitrators shall investigate the facts and shall
hold a hearing or hearings if required at which the parties may present evidence
and arguments, be represented by counsel and conduct cross-examination. In
determining any question, matter or dispute before them, the arbitrators shall
apply the provisions of this Agreement, without varying therefrom in any
material respect. They shall not have the power to add, to modify or change any
of the provisions of this Agreement. The three arbitrators shall render a
written decision upon the matter presented to them by a majority vote, and that
decision shall be final and binding on the parties. Judgment upon the decision
rendered by such arbitration may be entered by any court having jurisdiction
thereof.
12. Notices. Any notice from one party to the other shall be in
writing and deemed given when mailed if delivered by first class certified mail,
return receipt requested, or by overnight delivery, to the person at the address
listed below or to such other person and/or address as may be designated from
time to time in writing.
If to CEA:
Communications Equity Associates, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Chief Operating Officer
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If to the Company:
Video Jukebox Network, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
13. Severability. The invalidity or illegality of any provision, term,
or covenant contained in or made a part of this Agreement shall not affect the
validity of the remainder of this Agreement which shall remain in full force and
effect.
14. Entire Agreement. This Agreement contains all of the terms agreed
upon by the parties with respect to the subject matter hereof and there are no
representations or understandings between the parties except as provided herein.
This Agreement may not be amended or modified in any way except by a written
agreement duly executed by the parties. The execution of this Agreement
terminates all prior agreements, written or oral, between the Company and CEA
relating to international investment banking services and any other CEA services
relating to the Company's international expansion efforts, effective upon the
date of this Agreement.
15. Waiver. No consent or waiver of any condition or provision shall be
effective unless evidenced by an instrument in writing, duly executed by the
party sought to be charged with such waiver or consent. No waiver of a breach
of, or default under, any provision of this Agreement shall be deemed a waiver
of any other breach or default under any provision of this Agreement.
16. Headings. The headings in this Agreement are inserted for
convenience only and shall not affect the construction hereof.
17. Governing Law. This Agreement shall be construed as to both
validity and performance in accordance with and governed by the laws of the
State of Florida without regard to conflicts of laws principles thereof.
18. Benefits; Assignments. The rights under this Agreement shall not be
assignable nor the duties delegable by any party without first obtaining the
written consent of the other party hereto. Nothing contained in this Agreement,
express or implied, is intended to confer upon any person or entity, other than
the parties hereto and their successors in interest. Any rights or remedies
under or by reason of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
COMMUNICATIONS EQUITY ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxxx
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Executive Vice President
VIDEO JUKEBOX NETWORK, INC.
By: /s/ Xxxx XxXxxxx
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President and CEO
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