DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "Agreement") is entered into
effective as of the 17th day of October, 2003 (the "Effective Date"), by and
between TalkPoint Communications Inc., a Delaware corporation ("TalkPoint"), and
Moneyline Networks, LLC, a Delaware limited liability company ("Moneyline"; and
together with TalkPoint, the "Parties").
WHEREAS, concurrently with the execution of this Agreement, the
Parties and certain third party investors (the "Investors") are entering into a
purchase and subscription agreement (the "Purchase Agreement") dated as of the
date hereof pursuant to which the Investors will make a cash investment in
TalkPoint in exchange for, among other things, a portion of the shares (the
"Shares") of TalkPoint common stock currently held by Moneyline; and
WHEREAS, in connection with the above-described transfer by Moneyline
of the Shares and for good and valuable consideration exchanged in connection
herewith, the receipt and sufficiency of which are hereby acknowledged by the
Parties, TalkPoint wishes to provide, and Moneyline wishes to receive, certain
distribution and license rights with respect to TalkPoint's products on the
terms and conditions set forth in this Agreement.
NOW THEREFORE, the Parties agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. The definitions for the defined terms used in this
Agreement are contained in either the Glossary that is attached to this
Agreement as Appendix A or in the body of this Agreement.
ARTICLE II.
DISTRIBUTIONS OF TALKPOINT PRODUCTS
Section 2.1 Distributor Relationship.
TalkPoint hereby appoints Moneyline as its authorized distributor of
the TalkPoint Products to customers worldwide on the terms set forth in this
Agreement, provided however that Moneyline shall have no right to appoint any
subdistributor or to assign any of its rights hereunder (except in accordance
with Section 9.3 below).
(i) Except as otherwise provided herein, Moneyline shall be the
exclusive distributor of TalkPoint Products (including as to TalkPoint itself)
to customers (other than the Existing TalkPoint Customers as such term is
defined in Appendix A annexed hereto) in the Financial Services Industry.
(ii) MoneyLine shall be entitled to distribute on a non-exclusive basis
TalkPoint Products to the Existing TalkPoint Customers. In connection therewith,
TalkPoint and Moneyline shall coordinate their efforts and strategies with
respect to the Existing TalkPoint Customers, including, but not limited to, with
respect to account management, sales and pricing proposals and the
implementation of the foregoing and marketing efforts. Moneyline acknowledges
that TalkPoint shall maintain primary responsibility for supervising and
directing such efforts and strategies.
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(iii) Moneyline will use commercially reasonable best efforts to market
the TalkPoint Products to the Financial Services Industry. Moneyline will be
deemed to have satisfied the foregoing obligation by meeting the threshold
described in Section 4.4 below. Moneyline makes no representations or
commitments regarding the volume of TalkPoint Products to be distributed under
this Agreement.
Section 2.2 Orders for TalkPoint Products.
(i) The Parties acknowledge that orders from Moneyline's customers for
TalkPoint Products ("Customer Orders") may be in the form of purchase orders or
other written agreements or may be in electronic form submitted by the customer
through a web browser interface; provided, however, that all such forms of
purchase orders or other agreements and all forms of electronic orders shall be
subject to TalkPoint's prior written approval.
(ii) The Parties will agree in writing on procedures regarding: (A)
tracking of Customer Orders, (B) fulfillment of Customer Orders, and (C) billing
to and collection from Moneyline's customers in connection with the Customer
Orders as well as returns and refunds.
(iii) Unless otherwise agreed by the Parties in writing, TalkPoint will
provide the TalkPoint Products directly to Moneyline's customers in accordance
with the delivery date and other terms of the applicable Customer Order.
(iv) TalkPoint will be responsible for providing customer service and
support to the Moneyline's customers in accordance with TalkPoint's standard
policies or as may otherwise be agreed by the Parties in writing.
(v) Unless otherwise agreed by the Parties in writing and subject to
Moneyline's accounting policies, all revenue generated from Customer Orders will
constitute revenue of Moneyline excluding customer orders placed to TalkPoint by
Existing TalkPoint Customers.
Section 2.3 Branding.
(i) The TalkPoint Products sold by Moneyline at Moneyline's option will
contain TalkPoint or Moneyline branding. At Moneyline's request, TalkPoint will
cooperate with Moneyline in creating Moneyline-branded versions of the TalkPoint
Products.
(ii) In addition, Moneyline may sell private-labeled versions of the
TalkPoint Products that contain customer branding. TalkPoint will be responsible
for creating such private-labeled versions in accordance with the applicable
Customer Orders.
Section 2.4 Bundling of TalkPoint Products.
Moneyline may sell the TalkPoint Products bundled with Moneyline or
third party products and services; provided, however, that to the extent that
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such TalkPoint Products are bundled, no source codes will be disclosed or
bundled. TalkPoint shall provide to the extent reasonably requested by Moneyline
development and other services to bundle, embed, and integrate TalkPoint
Products with such other products and services and Moneyline shall reimburse
TalkPoint on a time and materials basis.
ARTICLE III.
PRICING AND PAYMENT
Section 3.1 Price to Parties for TalkPoint Products.
The Parties will agree in writing on the prices to be charged by
TalkPoint to Moneyline in connection with the provision of TalkPoint Products to
Moneyline's customers.
Section 3.2 Payment.
Unless otherwise agreed by the Parties in writing, Moneyline will pay
TalkPoint for all TalkPoint Products provided to Moneyline's customers within
forty-five (45) days of receipt of TalkPoint's invoice. Overdue payments will
accrue interest, at the lesser of one percent (1%) per month or the maximum
allowable interest under applicable law, from due date until paid. All payments
will be made in U.S. dollars.
ARTICLE IV.
TERM AND TERMINATION
Section 4.1 Term.
The initial term of this Agreement will begin on the Effective Date and
will end on May 16, 2012. Upon expiration of the initial term and any additional
term this Agreement shall automatically renew for additional two (2) year terms,
unless terminated as of the end of any term by either Party by written notice to
the other Party at least ninety (90) days prior to the expiration of the initial
term, or any additional term hereof.
Section 4.2 Termination.
(i) After January 1, 2005, Moneyline may terminate this Agreement for
any reason or no reason at all upon ninety (90) days prior, written notice to
TalkPoint.
(ii) If either Party shall breach any material term or condition of this
Agreement and such breach shall not have been cured within ten (10) days after
written notice thereof shall have been given to the breaching Party, the Party
giving such notice may then give further written notice to such other Party
terminating this Agreement, in which event this Agreement and rights granted
hereunder shall terminate on the date specified in such further notice.
Section 4.3 Survival.
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Section 3.2, Article 5 ("Intellectual Property"), Article 6
("Representations and Warranties"), Article 7 ("Indemnification"), Article 8
("Liability") and Article 9 ("Miscellaneous") shall survive any termination or
expiration of this Agreement.
Section 4.4 Termination of Exclusivity. If the average monthly revenues
received by TalkPoint on account of sales of TalkPoint Products as a result of
Customer Orders from Moneyline's customers during October, November and December
of any year (commencing 2004) are less than $100,000, the exclusive rights
granted under Section 2.1(i) shall become nonexclusive unless Moneyline pays
TalkPoint $300,000 less the revenue received for such three month period within
thirty (30) days after TalkPoint has given written notice of the shortfall to
Moneyline.
ARTICLE V.
INTELLECTUAL PROPERTY
Section 5.1 Ownership of Intellectual Property.
Moneyline acknowledges that the TalkPoint Products may incorporate
Intellectual Property of TalkPoint and its licensors. Nothing in this Agreement
constitutes a transfer of ownership of the Intellectual Property of either
Party.
Section 5.2 Licensing of Intellectual Property.
Effective upon occurrence of a License Trigger Event, TalkPoint will
grant Moneyline, subject to any licenses, (other than with respect to the
Financial Services Industries) granted by TalkPoint which are then in effect, a
non-exclusive, paid up, royalty-free, perpetual, worldwide, irrevocable license,
with the right to sublicense, under all Intellectual Property then owned by
TalkPoint or to which TalkPoint otherwise has the right to grant licenses, to
make, have made, sell, offer to sell, copy, modify, distribute and otherwise use
the TalkPoint Products.
Section 5.3 Source Code Escrow.
Promptly after the execution of this Agreement by both Parties,
TalkPoint and Moneyline will enter into an escrow agreement ("Escrow Agreement")
with DSI Technology Escrow Services, Inc. or such other escrow agent as may be
agreed upon by the Parties (the "Escrow Agent"). The Escrow Agreement shall
provide that TalkPoint will place a copy of the source code for any software
included in the TalkPoint Products (the "Source Code") into an escrow account to
be administered by the Escrow Agent. TalkPoint will use commercially reasonable
efforts to update the Source Code subject to Escrow with the source code for any
new versions, bug fixes or other modifications made to the Source Code.
TalkPoint and Moneyline shall each pay fifty percent (50%) of all fees charged
by the Escrow Agent. The Escrow Agreement shall also provide that Escrow Agent
will release the Source Code in its entirety (i) to Moneyline upon occurrence of
a License Trigger Event and (ii) to TalkPoint upon the termination of this
Agreement or the end of the term, whichever occurs first. Upon any release,
Moneyline shall have rights to use the Source Code pursuant to the license
granted under Section 5.2 above.
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Section 5.4 License to TalkPoint Marks.
TalkPoint hereby grants Moneyline a non-exclusive, paid up,
royalty-free, worldwide, irrevocable license to use the trademarks and services
marks under which the TalkPoint Products are sold by TalkPoint (the "TalkPoint
Marks") in advertising and marketing materials and on Moneyline's web site for
the purpose of marketing the TalkPoint Products during the term of this
Agreement.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Section 6.1 Mutual Representations and Warranties.
Each Party hereby represents and warrants that: (i) it has the power
and authority to enter into this Agreement and perform its obligations
hereunder; (ii) the execution and delivery of this Agreement have been duly
authorized and all necessary actions have been taken to make this Agreement a
legal, valid and binding obligation of such Party enforceable in accordance with
its terms; and (iii) the execution and delivery of this Agreement and the
performance by such Party of its obligations hereunder will not contravene or
result in any breach of the Certificate of Incorporation, Bylaws, certificate of
formation or operating agreement of such Party or of any agreement, indenture,
license, instrument or understanding or, to the best of its knowledge, result in
any violation of law, rule, regulation, statute, order or decree to which such
Party is bound or by which they or any of their property is subject.
Section 6.2 TalkPoint Product Warranties.
TalkPoint will notify Moneyline in writing of the standard product
warranties offered by TalkPoint to its customers in connection with the sale of
TalkPoint Products and of any changes to such warranties as may be made by
TalkPoint from time to time. Moneyline may pass such warranty on to its
customers who purchase TalkPoint Products. Moneyline will notify TalkPoint of
any claims received from its customers under such warranties, and TalkPoint will
be solely responsible for processing and honoring such claims and will indemnify
Moneyline in connection therewith.
ARTICLE VII.
INDEMNIFICATION
Section 7.1 Indemnity by TalkPoint.
TalkPoint shall indemnify, defend and hold harmless Moneyline and its
Affiliates and their respective officers, directors and employees (collectively,
the "Moneyline Indemnitees") from and against any claims, actions, causes of
action, loss, cost or liability (including reasonable attorneys' fees) with
respect to any third party claim to the extent: (i) arising from the provision
or use of any TalkPoint Product, including but not limited to any claims
associated with the failure to provide the TalkPoint Products in accordance with
the terms of a Customer Order, any product liability claims associated with the
TalkPoint Products, any claims associated with the transmission failures or
delays caused by or associated with the TalkPoint Products, and any claims
associated with any viruses or security holes caused by or associated with the
TalkPoint Products, (ii) asserting that any TalkPoint Product infringes or
misappropriates any Intellectual Property of any third party, or (iii) arising
from the negligent or willful misconduct of TalkPoint.
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Section 7.2 Indemnity by Moneyline.
Moneyline shall indemnify, defend and hold harmless TalkPoint and its
Affiliates and their respective officers, directors and employees (collectively,
the "TalkPoint Indemnitees") from and against any claims, actions, causes of
action, loss, cost or liability (including reasonable attorneys' fees) with
respect to any third party claim to the extent arising from the negligent or
willful misconduct of Moneyline.
Section 7.3 Indemnity Procedures.
If any claim or action is asserted that would entitle a Moneyline
Indemnitee or TalkPoint Indemnitee (each, an "Indemnitee") to indemnification
under either of the foregoing Sections 7.1 and 7.2 (a "Proceeding"), the
Indemnitee will give written notice thereof to the Party from whom
indemnification is sought (the "Indemnitor") promptly (and in any event within
fifteen (15) calendar days after the service of the citation or summons);
provided that the failure of the Indemnitee to give timely notice hereunder will
not affect rights to indemnification hereunder, except to the extent that
Indemnitor demonstrates actual damage caused by such failure. Indemnitor may
elect to direct the defense or settlement of any such Proceeding by giving
written notice to the Indemnitee, which election will be effective immediately
upon receipt by the Indemnitee of such written notice of election. The
Indemnitor will have the right to employ counsel reasonably acceptable to the
Indemnitee to defend any such Proceeding, or to compromise, settle or otherwise
dispose of the same, if the Indemnitor deems it advisable to do so, all at the
expense of the Indemnitor; provided that the Indemnitor shall not settle, or
consent to any entry of judgment in, any Proceeding without obtaining either:
(i) an unconditional release of the Indemnitee (and its Affiliates and each of
their respective officers, directors and employees) from all liability with
respect to all claims underlying such Proceeding; or (ii) the prior written
consent of the Indemnitee. An Indemnitee will not settle, or consent to any
entry of judgment, in any Proceeding without obtaining the prior written consent
of the Indemnitor. The Parties will fully cooperate with each other in any such
Proceeding and shall make available to each other any books or records useful
for the defense of any such Proceeding.
ARTICLE VIII.
LIABILITY
Section 8.1 Exclusion of Certain Damages.
EXCEPT WITH RESPECT TO EITHER PARTY'S INDEMNITY OBLIGATIONS UNDER
ARTICLE 7 OF THIS AGREEMENT, IN NO EVENT AND NOTWITHSTANDING THE NATURE OF THE
LEGAL CLAIM, BE IT A CLAIM IN TORT, CONTRACT, BREACH OF WARRANTY, STRICT
LIABILITY, PRODUCT LIABILITY, NEGLIGENCE, OR OTHERWISE, SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE REASONABLY FORESEEABLE, INCLUDING,
WITHOUT LIMITATION, A CLAIM FOR LOSS OF PROFIT, LOSS OF USE, LOSS OF GOODWILL,
LOSS OF OPPORTUNITY, OR OTHERWISE, HOWEVER CAUSED.
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ARTICLE IX.
MISCELLANEOUS
Section 9.1 Relationship with Other Agreements.
(i) The Parties agree that the Strategic Alliance Agreement and
the Technology License Agreements shall remain in effect in accordance with
their terms subject to Section 9.1(ii).
(ii) In the event of any conflict between this Agreement and the
Strategic Alliance Agreement, this Agreement will control. In the event of any
conflict between this Agreement and either of the Technology License Agreements,
this Agreement will control.
(iii) In the event of any termination or expiration of the
Strategic Alliance Agreement, the Managed Video Services and the Video Equipment
shall thereafter be deemed to be TalkPoint Products for the purposes of this
Agreement.
Section 9.2 Relationship of the Parties.
Each Party is an independent contractor of the other Party. Nothing in
this Agreement creates a partnership, joint venture or agency relationship
between the Parties.
Section 9.3 Successors and Assigns
None of the rights or obligations of either Party hereto may be
assigned or otherwise transferred without the written consent of the other
Party, which consent shall not be unreasonably delayed or denied .
Notwithstanding the foregoing, either Party may assign this Agreement (a) to a
person or entity who acquires substantially all of its business by sale, merger
or otherwise; or (b) to an Affiliate. The rights and obligations of the Parties
hereto shall be binding on and inure to the benefit of its successors and
permitted assigns.
Section 9.4 Governing Law. This Agreement shall be governed, construed,
and interpreted in accordance with the laws of the State of New York without
regard to conflicts of law principles.
Section 9.5 Dispute Resolution. The Parties will resolve any dispute
that arises from this Agreement in accordance with the procedures set forth in
this Section. The Parties will first attempt in good faith to resolve the
dispute by negotiations (including, if necessary, by at least one in-person
meeting of representatives of the Parties). If the dispute has not been resolved
within thirty (30) days of the first in-person meeting (or within such longer
period that may be agreed upon by the Parties), then the dispute will be
resolved by binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association using expedited procedures by a
single arbitrator selected in accordance with the applicable rules as provided
above (provided, however, that the Parties will have the right to seek
preliminary injunctive relief, if appropriate, in a court of competent
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jurisdiction). The arbitration will take place in New York, New York or such
other place as may be mutually agreed upon by the Parties. Any decision or award
resulting from the arbitration will be final and binding on the Parties and
judgment thereon may be entered in any court having jurisdiction thereof.
Section 9.6 Notices. All notices under this Agreement will be sent by
hand delivery, overnight delivery service or certified or registered mail, or by
facsimile (promptly confirmed by dispatching the hard copy by hand delivery,
overnight delivery service or certified or registered mail) to the address of
the applicable party set forth below (or as otherwise notified by such party).
Notices will be deemed delivered upon receipt of signature or, in the case of
notice by facsimile, upon telephonic confirmation of receipt of the appropriate
number of pages and dispatch of the hard copy.
If to Moneyline:
Moneyline Networks, LLC
The Woolworth Building
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
If to TalkPoint:
TalkPoint Communications Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
Section 9.7 Entire Agreement. Subject to Section 9.1 above regarding the
Strategic Alliance Agreement and the Technology License Agreements, this
Agreement (including all Appendices) sets forth the entire understanding of the
Parties with respect to its subject matter and supersedes any and all prior
agreements, arrangements and understandings relating to the subject matter
hereof.
Section 9.8 Amendments and Waivers. This Agreement may not be amended
unless the amendment is in writing and signed by authorized representatives of
both Parties. A waiver of rights under this Agreement will not be effective
unless it is in writing and signed by an authorized representative of the Party
that is waiving the rights.
Section 9.9 Severability. If any term of this Agreement or the
application thereof is found invalid, illegal or unenforceable, the remainder of
this Agreement will remain in full force and effect, and the Parties will
negotiate in good faith to substitute a provision of like economic intent and
effect.
Section 9.10 Rights of Third Parties. Nothing in this Agreement, express
or implied, is intended to confer upon any person other than the Parties hereto
or their respective permitted successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
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Section 9.11 Counterparts and Facsimile Signatures. 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. A signature received via facsimile shall be deemed an original for
all purposes.
Section 9.12 Titles and Subtitles. The titles and subtitles used is this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(signature page follows)
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the Effective Date.
TALKPOINT COMMUNICATIONS INC.
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer
MONEYLINE NETWORKS, LCC
By: /s/ Xxxxxxxxx Xxxxx
---------------
Name: Xxxxxxxxx Xxxxx
Title: President
APPENDIX A
GLOSSARY
"Affiliate" means, with respect to a Party, any corporation, company,
partnership, joint venture, association or other entity, that directly or
indirectly controls, is controlled by or is under common control with such
Party.
"Existing TalkPoint Customers" means Goldman, Sachs, Xxxxxx Xxxxxxx, Bear
Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxx, Bank of America and AIG.
"Financial Services Industry" means any and all entities, whose primary business
activities are investments, brokerage, trust and fiduciary services, venture
capital, consumer, commercial and investment banking, money management or other
similar financial services.
"Intellectual Property" means all proprietary rights and other rights in and to:
(i) patents, including design patents and utility patents, reissues, divisions,
continuations-in-part and extensions thereof, in each case including all
applications therefor; (ii) inventor's certifications and invention disclosures;
(iii) works of authorship, whether copyrightable or not, copyrights, copyright
registrations and applications of registration of copyrights and all renewals,
modifications and extensions thereof, mask works, moral rights and design
rights; (iv) computer systems, including programs, software, object and source
code, databases, algorithms, and documentation therefor, in each case including
all copyrights therefor; (v) trade secrets and other protectable information,
including ideas, formulas, compositions, technical documentation, operating
manuals and guides, plans, designs, sketches, inventions, product
specifications, engineering reports and drawings, manufacturing and production
processes and techniques; drawings, specifications, research records, invention
records and technical data; and all other know-how, protected by patent,
copyright or trade secret law; and (vi) registrations of, and applications to
register, any of the foregoing with any governmental authority and any renewals
or extensions thereof; provided that, "Intellectual Property" shall specifically
exclude all trademarks, service marks, brand names, certification marks, trade
dress, assumed names, trade names and other indications of origin, Internet
domain names including all applications for registration thereof and all
renewals, modifications and extensions thereof ("Trademarks").
"License Trigger Event" means the occurrence of the following during the term of
this Agreement: (i) cessation or dissolution of TalkPoint's business or (ii)
TalkPoint commencing a voluntary bankruptcy proceeding under Title 11 of the
United States Code or (iii) repeated failure of TalkPoint to provide and/or
support the TalkPoint Products in accordance with the terms of the applicable
Customer Orders and TalkPoint's then-current support policy) or (iv) TalkPoint's
inability to provide services in a commercially reasonable manner.
"Managed Video Services" shall have the meaning ascribed to it in the Strategic
Alliance Agreement.
"Parties" means Moneyline and TalkPoint.
"Party" means either Moneyline or TalkPoint, as the case may be.
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"Strategic Alliance Agreement" means that certain Strategic Alliance Agreement
dated May 16, 2002 by and among Moneyline, TalkPoint (formerly known as Video
Network Communications, Inc.) and B2B Video Network Corp.
"TalkPoint Products" means all current and future products and services of
TalkPoint and its Affiliates, including but not limited to those products and
services identified on Appendix B to this Agreement; provided, however, that:
(i) the TalkPoint Products shall not include Managed Video Services or Video
Equipment for as long as the Strategic Alliance Agreement is in effect, and (ii)
upon any termination or expiration of the Strategic Alliance Agreement, the
TalkPoint Products shall be deemed to include the Managed Video Services and the
Video Equipment.
"Technology License Agreements" means (i) that certain Technology License
Agreement dated May 16, 2002 by and among Moneyline and TalkPoint (formerly
known as Video Network Communications, Inc.), and (ii) that certain Technology
License Agreement dated May 16, 2002 by and among Moneyline and B2B Video
Network Corp.
"Video Equipment" shall have the meaning ascribed to it in the Strategic
Alliance Agreement.
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APPENDIX B
CERTAIN TALKPOINT PRODUCTS
o Activecast - webcasting solution and related production services
o TalkPoint -
o TalkPoint Express -
o audio conferencing and video bridging services
The Parties agree to update Appendix B from time to time as new TalkPoint
Products become available.
