AGREEMENT relating to the acquisition of the customer list of Medialink UK Limited MEDIALINK UK LIMITED WORLD TELEVISION GROUP PLC and MEDIALINK WORLDWIDE INCORPORATED
Exhibit
2.2
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1
October 2008
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AGREEMENT
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relating
to the acquisition of the customer list
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of
Medialink UK Limited
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MEDIALINK
UK LIMITED
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WORLD
TELEVISION GROUP PLC
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and
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MEDIALINK
WORLDWIDE INCORPORATED
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Contents
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1.
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Interpretation
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1
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2.
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Agreement
for sale
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1
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3.
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Completion
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1
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4.
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Price
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2
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5.
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Consideration
Protections
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4
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6.
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Guarantee
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4
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7.
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Creditors
and excluded liabilities
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5
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8.
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Employees
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5
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9.
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Warranties
by the Seller
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7
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10.
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Limitation
of liability
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8
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11.
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Undertakings
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9
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12.
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Restrictions
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11
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13.
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Good
faith discussions
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12
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14.
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Announcements
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12
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15.
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Subsequent
action
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12
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16.
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Notices
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12
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17.
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Entire
agreement
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13
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18.
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Assignment
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14
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19.
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General
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14
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Schedule
1
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Definitions
and interpretation
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Schedule
2
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DATE:
PARTIES:
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(1)
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MEDIALINK
UK LIMITED
(registered in England with number 3970925) whose address for the
purposes
of this agreement is c/o Medialink Worldwide Incorporated., 000
0xx
Xxxxxx, Xxx Xxxx XX00000, XXX (Seller);
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(2)
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WORLD
TELEVISION GROUP PLC (registered
in England with number 3901656) whose registered office is at 0
Xxxxxxx
Xxxxxx, Xxxxxx X0X 0XX (Buyer);
and
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(3)
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MEDIALINK
WORLDWIDE INCORPORATED. (registered
in Delaware,
USA) whose
principal office is at 000
0xx
Xxxxxx, Xxx Xxxx XX00000, XXX (Guarantor).
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INTRODUCTION
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A
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The
Seller carries on the Business.
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B
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The
Seller uses the Customer List in carrying on the
Business.
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C
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The
Seller has agreed to sell the Customer List to the Buyer on the
terms of
this agreement.
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D
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The
Guarantor has agreed to guarantee the performance of the obligations
of
the Seller under this agreement.
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E
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Prior
to the date of this agreement,
the Seller has, to the extent it has been lawfully able to, secured
waivers of any and all relevant employment rights from its employees,
other than the Retained Employees and the Employees, under the
terms of
the Compromise Agreements.
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AGREEMENT
| 1. |
Interpretation
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The
definitions and interpretative provisions in Schedule 1 apply to this
agreement.
| 2. |
Agreement
for sale
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2.1
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Subject
to the terms and conditions of this agreement, the Seller sells
and the
Buyer buys free from all Security Interests and with effect from
the
Completion Date, the Customer List.
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2.2
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Title
to the Customer List will pass to the Buyer on the Completion
Date.
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| 3. |
Completion
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3.1
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The
sale and purchase will be completed at the offices of the Buyer
on the
Completion Date.
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3.2
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At
Completion the Seller will deliver, procure the delivery of or
make
available, in each case to the Buyer as is requested by the
Buyer:
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3.2.1
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the
Customer List;
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1
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3.2.2
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the
Existing Product;
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3.2.3
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copies
of the Compromise Agreements;
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3.2.4
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a
certified copy of any power of attorney or other instrument under
which
this agreement or any related document is executed on behalf of
the
Seller; and
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3.2.5
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a
copy of the board minutes of a meeting of the directors of the
Seller
authorising the execution of this agreement and of any other document
that
may be necessary to give effect to it and appointing the relevant
signatories to sign such documents on its
behalf.
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| 4. |
Price
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4.1
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The
total price payable by the Buyer to the Seller for the sale of
the
Customer List will be based on the Gross Profit Margin earned by
the Buyer
on sales made in the 18 month period after the Completion Date
to the
customers contained in the Customer List on the following
basis:
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4.1.1
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the
Buyer will pay the Seller an amount equal to ten per cent. of the
Buyer’s
Gross Profit Margin on sales to Exclusive Customers;
and
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4.1.2
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the
Buyer will pay the Seller an amount equal to five per cent. of
the Buyer’s
Gross Profit Margin on sales to Non-Exclusive Customers.
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4.2
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The
Buyer will pay to the Seller within 30 days of the end of each
calendar
quarter on account of the Consideration payable to the Seller in
accordance with clause 4.1,
the applicable percentage of the Gross Profit Margin included in
each of
the amounts referred to in clause 4.4(iii), less any amount(s)
previously
paid to the Seller pursuant to this clause 4.2 and such payment
shall be
made in full within such 30 day period notwithstanding there being
an
actual or anticipated dispute between the Buyer and the Seller
with regard
to any Draft Statement on the date such payment is
due.
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4.3
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The
Consideration is exclusive of VAT which, if payable, will be payable
by
the Buyer at the prevailing rate on delivery to the Buyer by the
Seller of
a valid VAT invoice.
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4.4
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The
Buyer shall prepare and submit to the Seller within 20 Business
Days of
the end of each calendar quarter until such time as the Buyer has
received, or has written off with the Seller’s written consent (such
consent not to be unreasonably withheld or delayed), full payment
for all
the sales on which the Consideration is calculated a draft statement
setting out (i) the Gross Profit Margin on sales to each of the
Exclusive
Customers and Non Exclusive Customers in the calendar quarter just
ended,
including a breakdown by customer of services ordered or invoiced
and
revenues and costs taken into account in calculating the Gross
Profit
Margin; (ii) the cumulative Gross Profit Margin on sales to each
of the
Exclusive Customers and Non Exclusive Customers since the Completion
Date;
(iii) the cumulative amounts which have been received by the Buyer
during
the calendar quarter just ended in respect of sales to each of
the
Exclusive Customers and Non-Exclusive Customers during such quarter
or any
previous quarter during the relevant 18-month period together with
the
amount of Gross Profit Margin included in each such amount; and
(iv) the
aggregate cumulative Consideration payable by the Buyer to the
Seller in
respect of sales during the period to the end of such calendar
quarter
just ended in accordance with clause 4.1
(Draft
Statement).
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2
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4.5
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The
Seller shall, within 20 Business Days after receipt of the Draft
Statement
in accordance with clause 4.4,
give written notice to the Buyer stating whether or not it proposes
any
amendments to the Draft Statement. The Buyer shall procure that
the Seller
is given all such assistance and access to all such information
in the
Buyer’s possession or control as it may reasonably require in order to
enable it to reach its decision.
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4.6
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If
the Seller does not give written notice within the 20 Business
Day period
set out in clause 4.5,
the Draft Statement will be deemed to be agreed.
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4.7
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If
the Seller gives notice that it proposes amendments to the Draft
Statement, it shall within such notice inform the Buyer of its
proposed
amendments and the Seller and the Buyer shall, within the period
of ten
Business Days after receipt of such notice, seek to agree the proposed
amendments.
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4.8
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In
the event of
any dispute between the Seller and the Buyer as to any matter pertaining
to the Draft Statement remaining unresolved at the expiry of the
period of
ten Business Days referred to in clause 4.7,
such failure or dispute shall be referred to an independent firm
of
chartered accountants agreed by the Seller and the Buyer within
five
Business Days of such failure or notification of dispute or, in
the event
of a failure to agree within five Business Days, by an independent
firm of
chartered accountants appointed by the President for the time being
of the
Institute of Chartered Accountants in England and Wales on the
application
of either the Seller or the Buyer (in either case, the Expert).
The Expert shall determine the amount of the price payable by the
Buyer to
the Seller in respect of the relevant calendar quarter. The fees
of the
Expert shall be paid by the Seller and/or the Buyer in the proportions
determined by the Expert (or, failing any such determination, by
both
parties equally).
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4.9
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The
Seller and the Buyer shall procure that any Expert appointed under
clause
4.8
is
given all such assistance and access to all such information in
the
Seller’s or the Buyer’s (as the case may be) possession or control as the
Expert may reasonably require in order to determine the amount
of the
price payable by the Buyer to the Seller in respect of the relevant
calendar quarter. The Expert shall act as expert and not as arbitrator
and
its determination shall be binding on the
parties.
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4.10
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If
the agreed or determined Draft Statement shows that the amount
payable to
the Seller in accordance with clause 4.2 in respect of the relevant
calendar quarter is:
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4.10.1
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higher
than the amount already paid by the Buyer to the Seller in respect
of such
calendar quarter, the Buyer shall pay to the Seller an amount equal
to the
difference between the agreed or determined amount and the amount
already
paid within five Business Days of such agreement or determination;
or
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4.10.2
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lower
than the amount already paid by the Buyer to the Seller in respect
of such
calendar quarter, the Seller shall repay to the Buyer an amount
equal to
the difference between the agreed or determined amount and the
amount
already paid within five Business Days of such agreement or
determination,
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3
in
each
case within 20 Business Days of the date on which the Draft Statement is
agreed
or determined (as the case may be).
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4.11
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Any
amount paid by the Seller under this agreement, including in respect
of a
breach of any of the Warranties or under an indemnity contained
in this
agreement, shall in each case be deemed to give rise to a corresponding
reduction in the Consideration already paid by the Buyer to the
Seller.
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| 5. |
Consideration
Protections
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The
Buyer
undertakes to the Seller that during the 21 month period after the Completion
Date, except with the prior written consent of the Seller, it
shall:
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5.1
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not
sell or dispose of all or any part of its business relating to
or
providing services to, in each case any of the customers on the
Customer
List (or any interest therein) or all or any part of the Customer
List
other than to a member of the Buyer’s Group, provided that such member of
the Buyer’s Group prior to the completion of such transfer or assignment
undertakes in writing to the
Seller:
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5.1.1
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to
comply with the terms of this agreement as if such transferee or
assignee
were named herein as the Buyer; and
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5.1.2
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to
transfer all of its business relating to or providing services
to, in each
case the customers on the Customer List and/or part or all of the
Customer
List transferred to it by the Buyer (or any interest therein) back
to the
Buyer or to another member of the Buyer’s Group prior to it ceasing to be
a member of the Buyer’s Group;
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5.2
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not
take any action the sole or main purpose of which is to reduce
the
Consideration (whether the aggregate Consideration or the Consideration
due in respect of a particular calendar
quarter).
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5.3
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not
direct any customers on the Customer List to deal with a member
of the
Buyer’s Group either wholly or partly in place of the Buyer (other than
as
permitted by clause 5.1); and
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5.4
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procure
that no member of the Buyer’s Group competes with all or any part of the
business of the Buyer or solicits any of the customers on the Customer
List (other than as permitted by clause
5.1).
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| 6. |
Guarantee
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6.1
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In
consideration of the Buyer entering into this agreement, the Guarantor
unconditionally and irrevocably guarantees to the Buyer the due
and
punctual performance and observance by the Seller of its obligations
under
this agreement or any other document referred to in
it.
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6.2
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The
Guarantor will indemnify the Buyer against all losses, proceedings,
claims, liabilities, costs and expenses reasonably suffered or
incurred by
the Buyer as a result of the Seller failing to discharge the obligations
and liabilities it has pursuant to the terms of this agreement
and the
Compromise Agreements.
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4
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6.3
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No
time or indulgence given to the Seller or variation of this agreement
will
modify or release the obligations of the Guarantor in clauses 6.1
and 6.2.
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6.4
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If
the Seller defaults in the performance of any obligation under
this
agreement (which shall not include, for the avoidance of doubt,
an
obligation retained by the Seller in accordance with clause 7.2.1)
or the Compromise Agreements, the Guarantor will immediately upon
written
demand from the Buyer unconditionally perform
it.
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6.5
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This
clause 6
will remain in force until all the obligations of the Seller under
this
agreement and the Compromise Agreements have been performed or
satisfied.
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6.6
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The
Buyer will be entitled to enforce the Guarantor’s obligations without
taking proceedings against the Seller and will not be required
before
enforcing the Guarantor’s obligations to pursue any other right, remedy or
security which they may have against the
Seller.
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6.7
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Save
for any limitations on liability contained in this agreement, as
a
separate and independent stipulation the Guarantor agrees that
any
obligation of the Seller which may not be enforceable against or
recoverable from the Seller by reason of any legal limitation,
disability
or incapacity on or of the Seller will nevertheless be enforceable
against
and recoverable from the Guarantor as though the Guarantor had
the sole or
principal obligation.
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| 7. |
Creditors
and excluded liabilities
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7.1
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The
Buyer does not assume, is not deemed to assume and is not in any
way to be
responsible for any debt, obligation, liability or any other kind
of
responsibility of the Seller which is not expressly assumed by
the Buyer
pursuant to this agreement.
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7.2
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The
Seller will:
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7.2.1
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for
the avoidance of doubt continue to be responsible for all Creditors
and
its other debts, liabilities and obligations in connection with
the
Business not assumed by the Buyer under the express terms of this
agreement or by operation of law;
and
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7.2.2
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indemnify
the Buyer against all liabilities, losses, charges and costs reasonably
suffered or incurred by the Buyer as a result of any claim or demand
by a
third party against the Buyer arising as a result of the actual
or alleged
failure of the Seller to satisfy any Creditor debt, liability or
obligation not expressly assumed by the Buyer hereunder (provided
that the
Buyer shall promptly notify the Seller and Guarantor of any such
claim and
take such actions as either of them may reasonably request (at
the
Seller’s or Guarantor’s expense) to refute, contest, defend or settle any
such claim.
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8.
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Employees
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8.1
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The
parties acknowledge and agree that TUPE 2006 should not apply to
this
Agreement and that accordingly no individuals employed by the Seller
will
transfer to the Buyer under TUPE
2006.
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5
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8.2
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Notwithstanding
clause 8.1 above, the Buyer agrees to make offers of employment
to the
Employees on terms commensurate with their current terms and conditions
of
employment with the Seller including, without limitation, recognising
the
Employees’ period of continuous with the Seller as continuous service with
the Buyer.
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8.3
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The
Seller will pay to or on behalf of the Employees all sums to which
they
are entitled up to and including the Completion Date including,
without
limitation, all wages and salaries, sick pay, payments in respect
of
maternity, paternity and parental leave, and liability to Taxation,
accrued holiday pay, expenses and accrued bonuses and
commission.
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8.4
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The
Buyer will indemnify the Seller in full on an after tax basis against
any
actions, proceedings, costs, claims, damages, penalties, compensation
awards, orders, liabilities and expenses of any nature, including
any sums
payable to or on behalf of any Employee and including legal and
other
professional fees and expenses, which relate to or arise out of
any breach
or default by or unlawful act or omission of the Buyer in relation
to any
Employee on or after the Completion
Date.
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8.5
|
The
Seller will indemnify the Buyer in full on an after tax basis against
any
actions, proceedings, costs, claims, damages, penalties, compensation
awards, orders, liabilities and expenses of any nature, including
any sums
payable to or on behalf of any Employee and including legal and
other
professional fees and expenses which relate to or arise out of
any breach
or default by or unlawful act or omission of the Seller on or prior
to the
Completion Date in relation to any Employee in respect of which
liability
is transferred to the Buyer.
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8.6
|
If
any person not designated as an Employee (an Undisclosed
Employee)
asserts or establishes that his employment has or ought to have
transferred to the Buyer pursuant to TUPE 2006 upon Completion,
the Buyer
shall within 7 days of being so informed either by the Undisclosed
Employee or by the Seller (whichever is the earlier) inform the
Seller
whether or not it or any of its Group Companies wishes to employ
the
Undisclosed Employee.
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8.7
|
If
the Buyer does not wish to employ the Undisclosed Employee the
Seller or
any of its Group Companies shall within 7 days of being so advised
be
entitled at its sole discretion to offer employment to the Undisclosed
Employee. If such offer:
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8.7.1
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is
not made within the 7 day period;
or
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8.7.2
|
is
made and not accepted by the Undisclosed
Employee;
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the
Buyer
shall, if necessary, be entitled to terminate the employment of the Undisclosed
Employee.
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8.8
|
Subject
to the Buyer complying with clause 8.7 above, the Seller shall
indemnify
the Buyer in full on an after tax basis against any actions, proceedings,
costs, claims, demands, awards, fines, orders, settlements, liabilities
and expenses of any nature arising out of or in connection with
the
Undisclosed Employee’s employment or its termination (whether by the
Seller or Buyer, and whether prior to or following Completion),
including
any sums payable to or on behalf of the Undisclosed Employee and
including
legal and other professional fees and expenses Provided That the
buyer
follows the statutory dismissal procedures set out in Schedule
2 of the
Employment Xxx 0000.
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6
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8.9
|
The
Buyer shall:
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8.9.1
|
promptly
on becoming aware of any claim under clauses 8.5 and 8.6 or any
facts or
circumstances that might give rise to such a claim notify the Seller
in
writing with full details of the relevant claim, facts or circumstances;
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8.9.2
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promptly
provide all information available in relation to any such claim,
facts or
circumstances to the Seller and shall ensure that the Seller shall
be kept
fully informed and shall be provided on request with all information
available and copies of all correspondence and documentation relating
to
such claim;
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8.9.3
|
take
such action as the Seller may from time to time reasonably request
in
relation to such claim, including to avoid, dispute, resist, appeal,
compromise or defend the claim; and
|
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8.9.4
|
if
so required by the Seller in writing, shall permit the Seller to
take over
the conduct of all proceedings and/or negotiations of whatsoever
nature
arising in connection with the claim.
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8.10
|
The
Seller shall:
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8.10.1
|
promptly
on becoming aware of any claim under clause 8.4 or any facts or
circumstances that might give rise to such a claim notify the Buyer
in
writing with such details of the relevant claim, facts or circumstances
as
are then available to it;
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8.10.2
|
promptly
provide all information available in relation to any such claim,
facts or
circumstances to the Buyer and shall ensure that the Buyer shall
be kept
fully informed and shall be provided on request with all information
available and copies of all correspondence and documentation relating
to
such claim;
|
|
8.10.3
|
take
such action as the Buyer may from time to time reasonably request
in
relation to such claim, including to avoid, dispute, resist, appeal,
compromise or defend the claim; and
|
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8.10.4
|
if
so required by the Buyer in writing, shall permit the Buyer to
take over
the conduct of all proceedings and/or negotiations of whatsoever
nature
arising in connection with the
claim.
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| 9. |
Warranties
by the Seller
|
|
9.1
|
The
Seller warrants and undertakes to the Buyer
that:
|
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9.1.1
|
the
Customer List is the complete list of all the customers of the
Seller in
Europe to whom the Seller has provided services, invoiced or to
be
invoiced by the Seller, during the two years immediately prior
to the
Completion Date;
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|
9.1.2
|
the
Seller has in relation to the Customer List complied at all times
in all
material respects with the Data Protection Xxx 0000 and the Data
Protection Act 1998 and there is nothing known to the Seller immediately
prior to Completion which is likely to give rise to any contravention
of
those Acts; and
|
7
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9.1.3
|
the
Employees and the Retained Employees are the only employees employed
by
the Seller as at Completion.
|
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9.2
|
The
Warranties are on the Completion Date, true and accurate and not
misleading.
|
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9.3
|
The
rights and remedies of the Buyer for any breach of the Warranties
will not
be affected by:
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|
9.3.1
|
Completion;
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|
9.3.2
|
any
investigation made by or on behalf of the Buyer into the Business
and the
Customer List;
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9.3.3
|
any
information of which it may have actual, implied or constructive
notice
prior to the Completion Date (including, without limitation, the
winding-up of the Seller);
or
|
|
9.3.4
|
the
Buyer failing to exercise or delaying the exercise of any right
or remedy
under or in connection with this
agreement.
|
|
9.4
|
Each
of the Warranties will be construed as a separate and independent
warranty
and, except where expressly provided to the contrary, will not
be
governed, limited or restricted by reference to or inference from
any
other terms of this agreement or any other
Warranty.
|
|
9.5
|
No
failure to exercise and no delay in exercising on the part of the
Buyer
any right or remedy in respect of any Warranty will operate as
a waiver of
the right remedy or Warranty, nor will any single or partial exercise
of
any right or remedy preclude any other or further exercise of the
right or
remedy or the exercise of any other right or
remedy.
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|
10.
|
Limitation
of liability
|
|
10.1
|
Save
for any claim under clauses 4
(Price), 5
(Consideration Protections), 7.2.2
(Creditors and excluded liabilities indemnity) or 11 (Undertakings)
or the
indemnities contained in clause 8
(Employees), the aggregate liability of (i) the Seller and the
Guarantor
and (ii) the Buyer, shall in each case in respect of all and any
claims
under the terms of this agreement (each is a Claim),
including in respect of a breach of the Warranties, be limited
to
and shall in no event exceed the greater
of:
|
|
10.1.1
|
£100,000
(one hundred thousand pounds); or
|
|
10.1.2
|
the
aggregate amount of Consideration actually received by the Seller
(as
adjusted in accordance with clause 4.11)
prior to the date such Claim is settled or determined by a court
of
competent jurisdiction (and/or which becomes payable
thereafter).
|
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10.2
|
The
parties shall cease to have any liability to each other under this
Agreement:
|
8
|
10.2.1
|
in
respect of any Claim, other than a Claim for breach of clause 12
(Restrictions), on the first anniversary of the Completion Date,
unless
written notice of such Claim has been given to the relevant party
before
that date (in which case the relevant party shall cease to be liable
in
respect of any such notified Claim if proceedings in respect of
it are not
served within 6 months thereafter);
|
|
10.2.2
|
in
respect of a Claim for breach of clause 12 (Restrictions) on the
date
falling 18 months after the Completion Date, whether or not written
notice
of such Claim has been given to them before that date;
and
|
|
10.2.3
|
in
respect of any claim under clause 4 (Price), 5 (Consideration Protections)
or clause 7.2.2
(Creditors and excluded liabilities indemnity) or the indemnities
contained in clause 8
(Employees), on the third anniversary of the Completion Date, whether
or
not written notice of such claim has been given to them before
that
date.
|
|
10.3
|
For
the avoidance of doubt nothing in this Agreement shall prevent
the
Guarantor from procuring the winding up of the Seller at any time
after
Completion.
|
| 11. |
Undertakings
|
|
11.1
|
The
Seller will:
|
|
11.1.1
|
within
a reasonable time of receiving any notices, correspondence, information
or
enquiries about the Business, Customer List or the Employees pass
them or
copies of them to the Buyer; and
|
|
11.1.2
|
hold
in trust for the Buyer and account immediately upon receipt to
the Buyer
for any money to which the Buyer is entitled under the provisions
of this
agreement that is received by the Seller after the Completion Date
on
account of the Business, the Customer List or the
Employees.
|
|
11.2
|
Save
for the Consideration, which shall be paid in accordance with clause
4,
the Buyer will hold in trust for the Seller and account immediately
upon
receipt to the Seller for any money to which the Seller is entitled
and is
received by the Seller after the Completion
Date.
|
|
11.3
|
The
Buyer shall provide usual office facilities as may be reasonably
requested
by the Seller at its premises for a period of 3 months from the
Completion
Date in order that one employee of the Seller (which shall include
a
temporary employee provided to the Seller by a temporary employment
agency) may conclude certain matters relating to the cessation
and
winding-up of the Business from the Buyer’s premises. Such facilities
shall include a desk, chair, telephone, internet and email access,
storage
space for files and other reference material or storage media and
access
to a photocopier, fax machine, printer, toilets, drinking water
and
facilities to make or obtain hot
drinks.
|
|
11.4
|
The
Buyer undertakes with the Seller and the Guarantor that
it
shall, and that it shall procure that its Group Companies and their
respective directors, officers and employees (Associates)
shall:
|
|
11.4.1
|
keep
the Existing Product and its contents confidential, save to the
extent
that the provision of such material or contents (i) has been consented
to
in writing by the customer to whom the Existing Product relates
or for
whom it was originally produced, (ii) is required by law, regulation,
regulatory authority or other applicable judicial or governmental
order, or
(iii) is made to Associates of the Buyer who need such material
in order
for the Buyer to deliver services to the customer for whom it was
originally produced;
|
9
|
11.4.2
|
only
use the Existing Product as is expressly authorised by the customer
for
whom it was originally produced;
and
|
|
11.4.3
|
if
the Seller or the Guarantor acting reasonably so request in writing,
within five Business Days of the receipt by the Buyer of such request
(i)
despatch by courier some or all of the Existing Product to the
Seller, the
Guarantor or the relevant customer on the Customer List, in each
case as
is so requested by the Seller or the Guarantor, (ii) despatch by
courier
to the Seller, the Guarantor or the relevant customer on the Customer
List, in each case as is so requested by the Seller or the Guarantor,
or,
at the Buyer’s discretion (save where the relevant customer has requested
otherwise), destroy, all written material, memoranda, notes, copies,
excerpts and other writings or recordings whatsoever prepared by
the Buyer
or any Associate of the Buyer based upon, containing or otherwise
reflecting any Existing Product and (iii) confirm in writing to
the Seller
and the Guarantor that the Existing Product to be returned has
been
returned and the material to be destroyed has been
destroyed.
|
|
11.5
|
The
Seller or the Guarantor shall be deemed to be acting reasonably
in making
a request pursuant to clause 11.4.3
if
a director of one or both of them reasonably believes
that:
|
|
11.5.1
|
the
Buyer, the Seller or the Guarantor is legally or contractually
obliged to
return, despatch or destroy the Existing Product or to procure
that the
Existing Product is returned, despatched or destroyed, in each
case to the
extent such party is so requesting;
|
|
11.5.2
|
the
relevant client has requested that the Existing Product is returned,
despatched or destroyed to the extent such party is so requesting;
or
|
|
11.5.3
|
the
Existing Product to be returned, despatched or destroyed does not
relate
to a customer on the Customer List.
|
|
11.6
|
The
parties agree that the cost of complying with a request made pursuant
to
clause 11.4.3
to:
|
|
11.6.1
|
despatch
Existing Product to the relevant customer on the Customer List
shall be
borne by the Buyer; and
|
|
11.6.2
|
despatch
Existing Product to the Seller or the Guarantor shall be borne
by
whichever of the Seller or the Guarantor is making the
request.
|
|
11.7
|
The
Buyer
agrees to:
|
|
11.7.1
|
advise
those of the Associates of the Buyer to whom some or all of the
Existing
Product or its contents is to be provided in accordance with clause
11.4.1
of
the undertakings contained in clause 11.4
and obtain agreement from each such Associate that it or he shall
be bound
by the provisions of such undertakings, in each case prior to such
material or information being provided to such
Associate;
|
10
|
11.7.2
|
be
responsible for any breach of the undertakings contained in clause
11.4
by
any of
its Associates;
|
|
11.7.3
|
at
its sole expense, take all reasonable measures to restrain its
Associates
from prohibited or unauthorized disclosure or use of the Existing
Product;
and
|
|
11.7.4
|
indemnify
the Seller
and the Guarantor against all liabilities, losses, charges and
costs
reasonably suffered or incurred by the Seller and/or Guarantor
as a result
of the actual or alleged breach by the Buyer of the undertakings
contained
in clause 11.4
(provided that the Seller and/or Guarantor (as appropriate) shall
promptly
notify the Buyer of any such breach and take such actions as the
Buyer may
reasonably request (at the Buyer’s expense) to refute, contest, defend or
settle any such claim).
|
| 12. |
Restrictions
|
|
12.1
|
The
Seller and the Guarantor each undertake that it will not (and in
the case
of the Guarantor, it will procure that its subsidiaries will not)
do any
of the following things:
|
|
12.1.1
|
in
the 18 month period following the Completion Date, establish anywhere
in
the European Union a business for the provision of video communications
services to corporate, government and non-governmental
organisations within
the European Union (Business);
|
|
12.1.2
|
in
the 18 month period after the Completion Date, directly solicit
the custom
of any Exclusive Customer or Non-Exclusive Customer in respect
of services
to be provided within the European Union;
nor
|
|
12.1.3
|
assist
any other person to do any of the things mentioned in clauses 12.1.1
and 12.1.2.
|
|
12.2
|
The
restrictions in clause 12.1:
|
|
12.2.1
|
do
not prevent the Seller or the Guarantor from carrying on a business
or
doing anything else in accordance with the Buyer’s prior written consent,
such consent not to be unreasonably withheld, conditioned or delayed;
|
|
12.2.2
|
will
continue to apply notwithstanding that the Customer List or part
of it is
assigned or transferred in accordance with clauses 5.1
or
18;
|
|
12.2.3
|
shall
not prevent the Guarantor or any subsidiary of the Guarantor (excluding
the Seller) from providing services from their respective offices
in the
United States to any customers on the Customer List that the Guarantor
or
any such subsidiary has provided services to, invoiced for services
supplied to or received revenue from, in each case at any time
prior to
the Completion Date; and
|
11
|
12.2.4
|
shall
not prevent the Guarantor or any subsidiary of the Guarantor (excluding
the Seller) from providing services from their respective offices
in the
United States to any customer of the Guarantor or any such subsidiary
that
is not on the Customer List, whether such customer is based in
the
European Union or not;
|
| 13. |
Good
faith discussions
|
The
Buyer, Seller and Guarantor will hold discussions in good faith:
|
13.1
|
with
a view to establishing an affiliate relationship under which:
|
|
13.1.1
|
the
Buyer would provide services in Europe to the Guarantor’s customers;
and
|
|
13.1.2
|
the
Guarantor would provide services in the United States to the Buyer’s
customers; and
|
|
13.2
|
to
discuss the possibility of the sale or transfer by the Seller to
the Buyer
of production equipment used by the Seller and of the Seller’s leasehold
premises at 00-00 Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxxx.
|
| 14. |
Announcements
|
The
parties agree that no announcement will be made concerning the existence
of or
matters covered by this agreement, unless required by law or a competent
regulatory authority, until a mutually agreed joint announcement is prepared
and
released.
| 15. |
Subsequent
action
|
The
Seller and the Buyer each will, and they will each use their respective
reasonable endeavours to procure that any third party will, execute all such
documents and do all such acts and things as may be reasonably required by
the
Buyer or the Seller (as appropriate) on or subsequent to the Completion Date
in
order to carry into effect the terms of this agreement, including, but not
limited to, securing to or vesting in the Buyer the legal and beneficial
ownership of the Customer List. The person requiring such execution, action
or
thing to be done shall be responsible for the expenses that the person executing
the document or doing such acts or things reasonably incurs in doing
so.
| 16. |
Notices
|
|
16.1
|
Any
notices or other communication given under this agreement must
be in
writing and served:
|
|
16.1.1
|
by
hand
delivery to the recipient, or by recorded first class post or recorded
airmail (as appropriate) addressed to the recipient, in each case
at the
address specified in this agreement for the recipient or such other
address as the recipient may have last notified to the other
parties; or
|
12
|
16.1.2
|
by
fax to the following fax numbers or such other fax numbers as the
recipient may have last notified to the other parties provided
that a
confirmatory copy of such notice or other communication is also
hand
delivered or posted to the recipient in accordance with clause
16.1.1:
|
|
Party
|
Number
|
|
Buyer
|
x00
(0)00 0000 0000
|
|
with
a copy to Fladgate LLP marked for the attention of Xxxxx
Xxxxxxxx
|
x00
(0)00 0000 0000
|
|
Seller
|
x0
000 000 0000
|
|
Guarantor
|
x0
000 000 0000
|
|
16.2
|
Any
notice to be given to the Seller or the Guarantor shall be marked
for the
attention of the Chief Financial
Officer.
|
|
16.3
|
Any
notice given pursuant to clause 16.1
is
deemed to have been served:
|
|
16.3.1
|
if
delivered by hand, at the time of
delivery;
|
|
16.3.2
|
if
sent by post, within five Business Days of posting, exclusive of
Sundays;
and
|
|
16.3.3
|
if
sent by fax, at the completion of transmission during business
hours at
its destination or, if not within business hours, at the opening
of
business hours at its destination on the next Business Day but
subject
to:
|
|
1.
|
proof
by the sender that it holds a printed transmission report confirming
despatch of the transmitted notice;
|
|
2.
|
the
sender not receiving any telephone calls from the recipient, to
be
confirmed in writing, that the fax has not been received in a legible
form; and
|
|
3.
|
despatch
of the notice by post in accordance with clause 16.1.1
on
the same day as its transmission.
|
|
16.4
|
For
the purpose of clause 16.3.3,
business
hours
means between 9.00 a.m. and
5.30 p.m.
|
| 17. |
Entire
agreement
|
|
17.1
|
This
agreement and the documents referred to in it constitute the entire
agreement between the parties with respect to the sale and purchase
of the
Customer List and supersede all other agreements or arrangements,
whether
written or oral, express or implied, between the parties or any
of them
relating to the subject matter of this agreement.
|
13
|
17.2
|
For
the avoidance of doubt, no party has or is giving to, or entering
into
with, in each case any other party, any representations, warranties,
undertakings, covenants, agreements or obligations, whether in
respect of
its past, present or future business or employees, the Customer
List or
anything else, save as expressly set out in this
agreement.
|
|
17.3
|
The
Buyer acknowledges
that neither the Seller not the Guarantor is giving any representation
or
warranty,
express or implied, that the Existing Product contains or represents
all
the video,
audio, still images and other documents produced by the Seller
for the
customers on the Customer List prior to the Completion
Date.
|
| 18. |
Assignment
|
|
18.1
|
Subject
to this clause 18,
this Agreement shall be binding upon and enure for the benefit
of the
successors and assignees of the parties and, subject to any succession
or
assignment permitted by this Agreement, any such successor or assignee
of
the parties shall in its own right be able to enforce any term
of this
Agreement.
|
|
18.2
|
The
Seller, its successors and assignees shall be entitled to assign
the
benefit of this agreement to a Group Company of the Seller but
not
otherwise.
|
|
18.3
|
Save
as to the extent permitted by clause 5.1,
the Buyer shall not be entitled to assign its rights or obligations
under
this Agreement.
|
| 19. |
General
|
|
19.1
|
Any
provision in this agreement which is held by any competent court
or
tribunal to be illegal or unenforceable will to the extent necessary
be
regarded as omitted from this agreement and the enforceability
of the
remainder will not be affected.
|
|
19.2
|
No
party will be affected by any delay or failure in exercising or
any
partial exercising of his rights under this agreement unless it
has signed
an express written waiver or
release.
|
|
19.3
|
The
provisions of this agreement and the rights and remedies of the
parties
under this agreement are cumulative and are without prejudice and
in
addition to any rights or remedies which a party may have in law
or in
equity. No exercise by a party of any one right or remedy under
this
agreement, or at law or in equity, will, unless the contrary is
expressly
stated, hinder or prevent the exercise by it of any such other
right or
remedy.
|
|
19.4
|
All
expenses incurred by or on behalf of the parties, including all
fees of
solicitors and accountants employed by any of the parties in connection
with the negotiation, preparation and execution of this agreement
will be
paid solely by the party which has incurred
them.
|
|
19.5
|
No
variations of this agreement are effective unless made in writing
and
signed by the parties or their authorised
agents.
|
|
19.6
|
Save
for clause 18,
no term of this Agreement shall be enforceable by a third
party.
|
14
|
19.7
|
This
agreement may be executed in any number of counterparts, each of
which,
when executed and delivered, shall be an original and all the counterparts
together shall constitute one and the same
instrument.
|
|
19.8
|
No
party shall disclose any confidential information about any other
party
without the prior written approval of the other party (such consent
shall
not be unreasonably withheld, conditioned or delayed), except
to the extent that disclosure of such information:
|
|
19.8.1
|
is
required by law or by any legal or regulatory authority;
or
|
|
19.8.2
|
is
to a Group Company of the disclosing party, or any of its directors,
officers, employees, agents or advisers, or any of the same of
a Group
Company of the disclosing party.
|
|
19.9
|
The
contents of the Customer List are confidential information of each
of the
parties for the purposes of this clause 19.8.
|
|
19.10
|
The
construction, validity and performance of this agreement are governed
by
the laws of England and Wales and the parties submit to the jurisdiction
of the English courts.
|
Signed
on
the date set out at the head of this agreement.
15
|
Signed
by
|
)
|
|
for
and on behalf of
|
)
|
|
Medialink
UK Limited
|
)
|
|
in
the presence of:
|
)
|
|
Signature:
|
|
|
Name:
|
|
|
Address:
|
|
|
Occupation:
|
|
|
Signed
by
|
)
|
|
for
and on behalf of
|
)
|
|
World
Television Group plc
|
)
|
|
in
the presence of:
|
)
|
|
Signature:
|
|
|
Name:
|
|
|
Address:
|
|
|
Occupation:
|
|
|
Signed
by
|
)
|
|
for
and on behalf of
|
)
|
|
Medialink
Worldwide Incorporated
|
)
|
|
in
the presence of:
|
)
|
|
Signature:
|
|
|
Name:
|
|
|
Address:
|
|
|
Occupation:
|
