Exhibit 10(e)
* Confidential treatment has been granted for certain portions of this
exhibit. Omitted portions have been filed separately with the Commission.
EXCLUSIVE LICENSE AND MARKETING AGREEMENT
-----------------------------------------
Exclusive License and Marketing Agreement (the "Agreement")
dated as of May 27, 1999 (the "Effective Date"), among GHS, INC., a Delaware
corporation ("GHS"), having a principal place of business at 000 Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXXXXX XXXXX COMMUNICATION RESOURCES,
INC., a California corporation (d/b/a The Learning Annex of San Francisco), SGS
COMMUNICATION RESOURCES, INC., a California corporation (d/b/a The Learning
Annex of Los Angeles), XXXXXXXX XXXXX XXXXXXXX ENTERPRISES, INC., a California
corporation (d/b/a The Learning Annex of San Diego), SGC COMMUNICATION RESOURCES
LLC, a Delaware limited liability company (d/b/a The Learning Annex of New York)
and LEARNING ANNEX INTERACTIVE LLC, a Delaware limited liability company
(collectively, "THE LEARNING ANNEX") with offices at c/o Xxxxxxx Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. GHS and Learning Annex
are each referred to herein as "Party" or collectively as "Parties".
INTRODUCTION
------------
GHS owns, operates and/or distributes information on the Internet and
through other offline media. Learning Annex creates and manages self improvement
and education seminars and events and creates and distributes various products
relating to the same.
Each of Learning Annex and GHS desire to provide certain content,
products and services relating to the promotion of each of Learning Annex and
GHS on the terms and subject to the conditions set forth herein.
NOW THEREFORE, the parties hereby agree as follows:
TERMS
-----
1. DEFINITIONS. The following terms shall have the following meanings for the
purpose of this Agreement:
1.1 "GHS MARKS" means the brands, URL's, logos and trademarks of GHS to
be utilized by Learning Annex in accordance with the terms and conditions of
Agreement, each of which shall be identified by GHS as soon as practicable after
the date hereof.
1.2 "GHS MATERIALS" means the GHS Marks and the GHS Seminars.
1
1.3 "GHS SEMINARS" shall mean any courses, seminars, training sessions
or events that are delivered to Students via the Internet, including those
courses that are booked by the Learning Annex pursuant to the terms of this
Agreement.
1.4 "GHS WEB SITE" means the web site or URL as may be designated by
GHS from time to time.
1.5 "INTERNET" means any network of interconnected computer networks,
using the Transmission Control Protocol/Internet Protocol and/or such other
standard network interconnection protocols as may be adopted from time to time,
which is used to transmit content that is directly or indirectly delivered to a
computer or other digital electronic device for display to an end-user, whether
such Content is delivered through on-line browsers, off-line browsers, or
through "push" technology, electronic mail, broadband distribution, satellite,
wireless or otherwise, and any subset of such network, such as "intranets".
1.6 "LEARNING ANNEX CONTENT" means all seminars, locations and events
(each, a "Learning Annex Seminar") hosted by Learning Annex (including text,
pictures, graphics, sound, video and other data utilized in such Learning Annex
Seminar). If the Learning Annex has not obtained, after using its best efforts,
permission from an instructor to distribute on the Internet the content
contained in Learning Annex Seminars that were presented prior to the date
hereof by such instructor, then such content shall not be included in the
definition of Learning Annex Content.
1.7 "LEARNING ANNEX MARKS" means the name, brands, URL's, logos and
trademarks of the Learning Annex to be utilized by GHS in accordance with and in
order to effectuate the terms and conditions of Agreement. The Learning Annex
Marks presently owned or licensed by the Learning Annex are identified on
Schedule 1.7 attached hereto, which Schedule 1.7 shall be automatically amended
to include any additional Learning Annex Marks acquired during the Term.
1.8 "LEARNING ANNEX MATERIALS" means Learning Annex Content, Learning
Annex Marks and Learning Annex Products.
1.9 "LEARNING ANNEX PRODUCTS" means all products manufactured, sold or
distributed by Learning Annex now or in the future including, without
limitation, all books, videos and tapes and provided hereunder in accordance
with the terms and conditions of this Agreement.
1.10 "LEARNING ANNEX SEMINAR" shall have the meaning set forth in
Section 1.6.
1.11 "MARKS" means The Learning Annex Marks or the GHS Marks, as the
case may be.
2
1.12 "STUDENT" means any registrant or attendee of a Learning Annex
Seminar or a GHS Seminar, as the case may be.
2. LICENSE.
2.1 LEARNING ANNEX MARKS. Subject to the terms of this Agreement,
Learning Annex hereby grants GHS a worldwide, royalty-free, exclusive right and
license to use on the Internet the Learning Annex Marks for all purposes (with
the exception of the "xxxxxxxxxxxxx.xxx" URL, the sole use of which shall be
limited to information and registration for Learning Annex Seminars); PROVIDED
that GHS: (a) does not create a unitary composite xxxx involving a Learning
Annex Xxxx without the prior written approval of Learning Annex, which approval
may be withheld in its reasonable discretion; and (b) uses the Learning Annex
Marks only in the formats in which they have heretofore been used by the
Learning Annex, unless the Learning Annex expressly approves in advance of any
change in writing.
2.2 LEARNING ANNEX CONTENT. Subject to the terms of this Agreement,
Learning Annex hereby grants GHS a worldwide, royalty-free, exclusive right and
license (i) to reproduce Learning Annex Content by audio and visual reproduction
(the "Reproductions"), (ii) to distribute, transmit, store, communicate,
perform, market, enhance, establish navigational icons, links and pointers
within, display, promote, create derivative works from and sublicense the
Reproductions solely on the Internet, and (iii) to "webcast" the Learning Annex
Content via an online or Internet transmission, PROVIDED that the license to
"webcast" the Learning Annex Content pursuant to this Section 2.2 shall not be
royalty-free and the Parties shall determine in good faith a mutually agreeable
royalty for such license; PROVIDED FURTHER, HOWEVER, that the right and license
granted under this Section 2.3 shall be non-exclusive as to Disclosed Existing
Rights (as hereinafter defined).
2.3 LEARNING ANNEX PRODUCTS. Subject to the terms of this Agreement,
Learning Annex hereby grants GHS a worldwide, royalty-free, exclusive right and
license to distribute, market and sell on the Internet all Learning Annex
Products; PROVIDED, HOWEVER, that the right and license granted under this
Section 2.3 shall be non-exclusive as to Disclosed Existing Rights.
2.4 LEARNING ANNEX MAILING LIST. Subject to the terms of this
Agreement, Learning Annex hereby grants GHS a worldwide, royalty-free, exclusive
right and license to use the Learning Annex mailing list for purposes related to
the promotion of the GHS Seminars; PROVIDED, HOWEVER, that GHS shall also be
permitted to use the Learning Annex mailing list for promotions of other aspects
of the GHS business if the promotion of GHS Seminars also includes such
promotions of other aspects of the GHS business.
2.5 GHS MARKS. Subject to the terms of this Agreement, GHS hereby
grants to the Learning Annex a worldwide, royalty-free right and license to use
the GHS Marks for the purposes identified in this Agreement; PROVIDED that
Learning Annex: (a) does not create a unitary composite xxxx involving a GHS
Xxxx without the prior written
3
approval of GHS, which approval may be withheld in its reasonable discretion and
(b) uses the GHS Marks only in the formats in which they have heretofore been
used by the GHS, unless the GHS expressly approves in advance of any change in
writing.
2.6 EXCLUSIVITY. During the term of this Agreement and subject to the
terms hereof, Learning Annex agrees that GHS will be the sole licensee of any
Learning Annex Content, Learning Annex Marks and Learning Annex Products owned,
licensed or sublicensed by Learning Annex for any use or distribution on the
Internet; PROVIDED, HOWEVER, that the right and license granted under Section
2.3 shall be non-exclusive as to Disclosed Existing Rights.
3. TERM; TERMINATION.
3.1 INITIAL TERM. The initial term shall commence on the Effective Date
and shall continue until September 1, 2002 (the "Initial Term").
(a) RENEWAL TERMS. Upon conclusion of the Initial Term, GHS
will have the right to renew the Agreement for two successive one-year renewal
terms (each a "Renewal Term" and together with the Initial Term, the "Term");
PROVIDED that GHS may only renew if it has paid the option price for Year Four
and/or Year Five (each as defined in the Option Agreement dated as of May 27,
1999 (the "Option Agreement"), among GHS, Inc. and The Learning Annex entities
identified therein and the securityholders of The Learning Annex entities
identified therein), respectively. A Renewal Term shall automatically commence
following the expiration of the Initial Term (or prior Renewal Term, as the case
may be), unless GHS indicates its intention not to renew any such Renewal Term
with thirty (30) days prior written notice to Learning Annex.
3.2 TERMINATION FOR BREACH. Except as expressly provided elsewhere in
this Agreement, either Party may terminate this Agreement at any time in the
event of a material breach of this Agreement by the other Party which remains
uncured after thirty (30) days written notice thereof to the other Party (or
such shorter period as may be specified elsewhere in this Agreement). A failure
to pay any licensing fees due under this Agreement within ten (10) days of its
due date shall be deemed to be a material breach of this Agreement.
3.3 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement, (i) neither Party shall have any further right to exercise any or all
of the license rights contained in Section 2 hereof and such license rights
shall forthwith revert to the other Party, (ii) all items identified in Section
1.9 and furnished by Learning Annex to GHS shall immediately be returned to the
Learning Annex at GHS's expense, (iii) all items identified in Section 1.2 and
furnished by GHS to Learning Annex shall immediately be returned to GHS at the
Learning Annex's expense and (iv) all portions of those items identified in
subclauses (ii) and (iii) above that are not returned as described above shall
be destroyed and a certificate evidencing such destruction shall be delivered to
the Party that owns such items.
4
4. LICENSE CONSIDERATION.
4.1 EQUITY.
(a) Upon the execution hereof, GHS shall issue to XXXXXXXX
XXXXX COMMUNICATION RESOURCES, INC. (i) 5,000 shares (the "Fixed Shares") of
Series C Preferred Stock, $0.01 par value, (the "Preferred Stock") of GHS (the
terms of such Preferred Stock are attached hereto as ANNEX 1 in the Certificate
of Designations oF Series C Preferred Stock (the "Certificate of Designation"))
and (ii) an amount of shares of Preferred Stock (the "Additional Shares") as
shall equal the quotient of (A) the quotient of (x) $125,000 DIVIDED BY (y) the
average of the high and low price of the Common Stock, $.01 par value, of GHS
(the "Common Stock") of, as quoted on the OTC Bulletin Board, for the five
trading days immediately prior to and after the date hereof DIVIDED BY (B) ten
(10). The Fixed Shares and the Additional Shares (collectively, the "Shares")
shall be subject to the transfer restrictions and have the benefits of the
registration rights attached hereto as EXHIBIT A, the terms of which are
incorporated herein by reference.
(b) Learning Annex shall have executed and delivered to GHS
the Investor Suitability Questionnaire, which includes certain investment
representations, attached hereto as EXHIBIT B, the provisions of which are
incorporated herein by reference.
4.2 [*]
(a) [*]
(b) [*]
5. OWNERSHIP OF MARKS AND CONTENT; QUALITY CONTROL.
5.1 OWNERSHIP OF LEARNING ANNEX CONTENT AND LEARNING ANNEX MARKS. All
right, title and interest in and to the Learning Annex Content and Learning
Annex Marks as well as intellectual property rights (including without
limitation all rights therein under copyright, trademark, trade secret and
similar laws) shall remain with Learning Annex or its licensors and/or
suppliers.
5.2 OWNERSHIP OF GHS MATERIALS. All right, title and interest in and to
the GHS Materials and any intellectual property rights of GHS (including without
limitation all rights therein under copyright, trademark, trade secret and
similar laws) shall remain with GHS or its licensors and/or suppliers.
5.3 TRADEMARK RIGHTS. Each Party acknowledges that its utilization of
the other Party's Marks will not create in it, nor will it represent it has, any
right, title or interest in or to such Marks other than the licenses expressly
granted herein. Each Party agrees not to do anything contesting or impairing the
trademark rights of the other Party.
5
5.4 QUALITY STANDARDS. Each Party: (a) agrees that the nature and
quality of its products and services supplied in connection with the other
Party's Marks shall conform to quality standards communicated in writing by the
other Party for use of its trademarks; (b) agrees to supply the other Party,
upon request, with a reasonable number of samples of any materials publicly
disseminated by such Party which utilize the other Party's Marks; (c) shall
accurately reproduce any graphic portions of the other Party's Marks and
displays symbols and notices clearly and sufficiently indicating the trademark
status and ownership of the other Party's Marks in accordance with applicable
trademark law and practice; (d) understands and acknowledges that the other
Party has the right to establish and to change standards of quality for the
services rendered under its Marks, and agrees to conform to such standards as
the other Party may establish from time to time, (e) shall use the other Party's
marks only in the formats in which they have heretofore been used by the other
Party, unless the other Party expressly approves any change in writing, and (f)
shall comply with all applicable laws, regulations and customs and obtain any
required government approvals pertaining to use of the other Party's Marks.
5.5 DUTY TO INFORM. Each party shall promptly inform the other Party of
any information related to the other Party's Marks which could reasonably lead
to a claim, demand or liability of or against the other Party by any third
party.
6. CO-MARKETING OBLIGATIONS.
6.1 THE LEARNING ANNEX MAGAZINE.
(a) Learning Annex shall include the following, in each
edition of the LEARNING ANNEX MAGAZINE that is distributed in each Learning
Annex location and city:
(i) an advertisement for each of the courses offered
by GHS adjacent to its counterpart course, if any, offered by Learning Annex via
a visual burst or icon;
(ii) (A) multiple advertisements for GHS or GHS
Seminars, the number and size of which shall be determined by GHS in its sole
discretion and the placement of which shall be mutually agreed upon by the
Parties or (B) the first opportunity to include an exclusive insert, the size
and design of which shall be determined by GHS in its sole discretion and the
placement of which shall be mutually agreed upon by the Parties, PROVIDED that
if the Learning Annex has an opportunity to include inserts from other third
parties in the LEARNING ANNEX MAGAZINE, then the Learning Annex shall notify GHS
in writing of such opportunity (which notice shall identify the third party and
type of insert) and GHS shall within ten (10) days of receipt of such
notification GHS inform the Learning Annex whether the inclusion of such insert
with the GHS insert is acceptable; and
(iii) taglines (such as "Can't make it to class -
take it online at XxxxxxxXxxxxxxxxxx.xxx" or such other words or phrases to
similar effect ) related to GHS programming to be placed throughout such edition
of the LEARNING ANNEX
6
MAGAZINE, which taglines shall be developed solely by GHS and approved by the
Learning Annex, which approval shall not be unreasonably withheld or delayed.
(b) All advertisements and inserts that are included in the
LEARNING ANNEX MAGAZINE shall be subject to and conform to the Learning Annex's
standard operating protocol for acceptance in the LEARNING ANNEX MAGAZINE
attached hereto as EXHIBIT C.
(c) In connection this Section 6.1, the Learning Annex shall
(i) inform GHS of the editorial schedule (the "Editorial Schedule") of the
LEARNING ANNEX MAGAZINE (including requisite delivery dates for each of the
items identified in Section 6.1(a) above) and (ii) provide GHS with sixty (60)
days written notice of any changes to such schedule. GHS shall deliver each of
the items identified in Section 6.1(a) to the Learning Annex in accordance with
the Editorial Schedule for inclusion in each LEARNING ANNEX MAGAZINE. The
Editorial Schedule is attached hereto as EXHIBIT D.
(d) GHS shall pay for the direct costs related to the
additional printing, insertion, production and/or postage charges incurred in
connection with the items identified in Section 6.1(a).
(e) In the event that GHS places additional full-page
advertisements on one or more pages of the LEARNING ANNEX MAGAZINE, the Learning
Annex shall make such pages available to GHS at a price that is no greater than
cost to Learning Annex to produce such advertisements.
6.2 PROMOTION.
(a) STREET STANDS. Learning Annex shall affix advertising
stickers promoting GHS on existing and newly placed Learning Annex streets
stands which are located on street and store locations throughout the United
States and contain copies of the LEARNING ANNEX MAGAZINE. The advertising
stickers shall be developed solely by GHS and approved by the Learning Annex,
which approval shall not be unreasonably withheld or delayed. GHS shall pay for
the cost of producing such advertising stickers.
(b) ADVERTISEMENTS. In Learning Annex's television, radio,
print and "out of home" (e.g., buses and billboards) advertisements or
co-sponsorships and in any publications, programs, features or other forms of
media over which Learning Annex exercises at least partial editorial control,
Learning Annex will include specific references or mentions (verbally where
possible) of the availability of GHS, which references shall be reasonably
determined by GHS.
(c) MATERIALS. At all locations where Learning Annex sells or
distributes any of its materials, including any location where Learning Annex
Products are sold or distributed or any location where registration for any
Learning Annex Seminar is offered, Learning Annex shall make available at such
location all materials of GHS requested by GHS to be included with such
distributions of Learning Annex materials.
7
GHS shall incur all costs directly related to the inclusion of its materials
pursuant to this Section 7.2(c).
(d) LEARNING ANNEX LOCATIONS. At all locations at which
Learning Annex hosts Learning Annex Seminars, Learning Annex shall:
(i) prominently display GHS "take-one" cards, such cards
to be provided by and paid for by GHS;
(ii) distribute GHS promotional materials to all
Learning Annex registrants and/or to attendees of the Learning Annex
Seminars, such materials to be provided by and paid for by GHS; and
(iii) allow GHS to set up and maintain an information
booth at any such location for the duration of the Learning Annex Seminar.
(e) LEARNING ANNEX PROMOTIONAL LINK. Learning Annex shall
provide prominent banner advertisements for and promotional links to the URL
"XxxxxxxXxxxxxxxxxx.xxx" above-the-fold on the XxxxxxxxXxxxx.xxx website.
(f) GHS PROMOTIONAL LINK. GHS shall provide banner
advertisements for and promotional links to the URL "XxxxxxxxXxxxx.xxx" on the
XxxxxxxXxxxxxxxxxx.xxx website to promote the Learning Annex offline courses.
(g) LEARNING ANNEX REGISTRATION. Learning Annex shall make
available to GHS on a monthly basis the e-mail addresses of each Student and
hereby grants permission to GHS to market to each Student through e-mail
communication or otherwise the GHS Seminars. GHS hereby agrees to post a privacy
policy on the GHS Web Site, which privacy policy shall comply with all material
Federal laws regarding e-mail communications, and to utilize the e-mail
addresses of the Students only in accordance with such privacy policy.
(h) PROMOTIONAL MATERIALS. Learning Annex shall include GHS
promotional materials as stuffers in all Learning Annex registration materials.
All such GHS promotional materials shall be provided by GHS and GHS shall incur
the costs of producing such promotional materials and the additional postage
costs for including such stuffers with the Learning Annex registration
materials. The quantity and content of such materials shall be mutually approved
by the parties.
7. FURTHER OBLIGATIONS OF LEARNING ANNEX.
7.1 LISTINGS. Learning Annex shall make all of its Learning Annex
Seminar listings available to GHS (for use by GHS as provided hereunder) at the
same time that the Learning Annex submits each issue of the LEARNING ANNEX
MAGAZINE containing such listings to its printer for printing. This information
will include, at a minimum, the time, location, instructor and title of such
Learning Annex Seminar. Learning Annex will
8
respond to requests for Learning Annex Seminar information that are initiated by
Internet users of the GHS Web Site or a web site of a partner or affiliate of
GHS.
7.2 INSTRUCTORS. During each printing period, Learning Annex shall
present to GHS a list of courses anticipated to be offered by Learning Annex and
instructors therefor. GHS shall review the list and choose those courses and
instructors it wishes to include on the GHS service, whereupon Learning Annex
shall use its commercially reasonable efforts to book such courses and
instructors via a standard employment contract provided to Learning Annex by
GHS. In the event that the booking process with respect to any instructor or
course becomes unduly complicated or protracted, then the Learning Annex may
transfer the obligation to continue to negotiate with and book such instructor
or course to GHS; PROVIDED, HOWEVER, that the Learning Annex shall not, directly
or indirectly, prevent or hinder the negotiation process or the consummation of
an agreement between GHS and such instructor or course.
7.3 INTRODUCTIONS. Learning Annex shall use its best efforts to
introduce GHS to its various business partners including, but not limited to,
instructors, teachers and Career Track, for the purpose of entering into a
strategic relationships.
8. HAY HOUSE AGREEMENT.
(a) As of the Effective Date, the Learning Annex shall have
either (i) entered into an agreement with Hay House, Inc. ("HH") or (ii) amended
the agreement dated August 31, 1994 (the "Original Hay House Agreement") between
The Learning Annex and HH, in either case, to provide, among other things, the
following:
(i) to clarify and confirm that ownership of Learning
Annex Products (whether past, present or future), including any products that
may previously have been assigned to HH under the Original Hay House Agreement,
resides with The Learning Annex;
(ii) HH shall grant to The Learning Annex exclusive
online distribution rights in all Learning Annex Products that the Learning
Annex owns or owned, publishes or published, produces or produced or otherwise
has or had an interest in or are otherwise provided by Learning Annex for
distribution by HH (including any such products to which rights may have
previously been assigned to HH under the Original Hay House Agreement), other
than those rights relating to Learning Annex Products granted under distribution
agreements currently existing between HH and other parties heretofore
specifically disclosed to The Learning Annex (the "Disclosed Existing Rights")
and attached hereto as EXHIBIT E;
(iii) the sale by HH to Learning Annex of The
Learning Annex Products at the lowest cost on terms no less favorable than it
sells such products to any other distributor or wholesaler;
9
(iv) the representation and warranty that Learning
Annex is, and the covenant that Learning Annex shall be, the exclusive online
distributor of Learning Annex Products other than the Disclosed Existing Rights;
and
(v) that The Learning Annex shall have the right to
designate a third party to be the exclusive online distributor of all Learning
Annex Products.
(b) Learning Annex shall not renew the Original Hay House
Agreement or enter into any future agreement with HH providing for distribution
rights ("Future Distribution Agreement") to any Learning Annex Products without
the consent of GHS unless The Learning Annex shall have first offered to GHS the
opportunity to enter into a similar Future Distribution Agreement and GHS had
refused; PROVIDED, that any Future Distribution Agreement shall include a
provision that Learning Annex owns all new products created by Learning Annex
and that GHS shall have distribution rights to such products at least as
favorable as HH.
(c) Any Learning Annex Products sold by HH to Learning Annex
pursuant to Section 8(a)(iii) above shall be made available to GHS at Learning
Annex's cost.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Each of Learning Annex and GHS hereby represent and warrant to the
other, as of the date hereof, that: (a) the execution, delivery and performance
by it of this Agreement are within its corporate powers and have been duly
authorized by all necessary corporate action on its part and (b) this Agreement
constitutes a valid and binding agreement of it enforceable against it in
accordance with its terms.
9.2 GHS hereby represents that as of the date hereof the Certificate of
Designation shall have been filed with the Secretary of State of the State of
Delaware.
9.3 Learning Annex hereby represents and warrants, as of the date
hereof, that:
(a) With respect to the Learning Annex Materials and other
subject matter, including ideas, processes and methods which Learning Annex
discloses to GHS or uses in the performance of this Agreement, Learning Annex
has the right to make disclosure and use thereof without liability to others.
Any Learning Annex Materials and all related ideas, creations and information
furnished or developed by Learning Annex and licensed to GHS under this
Agreement (i) are or will be Learning Annex's own and original creation (except
for matters in the public domain) and (ii) shall not rely, or in any way be
based upon, proprietary information obtained or derived by Learning Annex from
any source other than Learning Annex unless Learning Annex has received specific
authorization or license in writing from any such source as to the use thereof;
and
(b) The Learning Annex Materials do not and will not
(including the use thereof under this Agreement) infringe upon or misappropriate
the intellectual
10
property rights or any other legal rights of any third party. Should any aspect
of the Learning Annex Materials become, or in GHS's opinion is likely to become,
the object of any infringement or misappropriation claim or suit, Learning Annex
will procure for GHS the right to use such Learning Annex Materials in all
respects.
10. LIMITED WARRANTY.
10.1 LIMITED DAMAGES. EXCEPT WITH RESPECT TO ANY LIABILITY OF EITHER
PARTY TO THE OTHER PARTY ARISING UNDER SECTIONS 9 OR 11 HEREUNDER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES WITH RESPECT
TO ANY PROVISION OF THIS AGREEMENT, INCLUDING LOST PROFITS, INTERRUPTED
COMMUNICATIONS OR LOST DATA EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
11. INDEMNITY.
11.1 INDEMNITY BY GHS. GHS shall indemnify and hold Learning Annex and
its officers, directors, employees and agents harmless from and against all
claims, losses, damages, liabilities, costs and expenses, including reasonable
attorneys' fees, resulting from or arising out of (a) any breach of
representation or warranty made in this Agreement, including but not limited to
any infringement or violation of rights of third parties including copyright,
music performance or other music related right, trademark, trade dress, trade
secret, design right, patent, moral right, right of publicity, defamation,
libel, know-how and/or any other present or future intellectual property right
of any type or (b) any injury to any person or property caused by any GHS
Materials or any content on the GHS Web Site, in each case excluding any
Learning Annex Materials contained therein or thereon, if any.
11.2 INDEMNITY BY LEARNING ANNEX. Learning Annex shall indemnify and
hold GHS and its Partners affiliates and suppliers and their respective
officers, directors, employees and agents harmless from and against all claims,
losses, damages, liabilities, costs and expenses, including reasonable
attorneys' fees, resulting from or arising out of (a) any breach of
representation or warranty made in this Agreement, including but not limited to
any infringement or violation of rights of third parties including copyright,
music performance or other music related right, trademark, trade dress, trade
secret, design right, patent, moral right, right of publicity, defamation,
libel, know-how and/or any other present or future intellectual property right
of any type or (b) any injury to any person or property caused by any Learning
Annex Materials.
11
11.3 MECHANICS OF INDEMNITY. The party seeking indemnification (the
"Indemnified Party") shall: (a) give the proposed indemnifier (the "Indemnifying
Party") notice of the relevant claim, (b) cooperate with the Indemnifying Party,
at the Indemnifying Party's expense, in the defense of such claim, and (c) give
the Indemnifying Party the right to defend such claim, except that the
Indemnifying Party shall not enter into any settlement without the Indemnified
Party's prior written approval and (ii) select counsel PROVIDED that such
counsel shall be reasonably acceptable to the Indemnified Party. The Indemnified
Party shall have the right to participate in or assume the defense at its
expense.
12. SURVIVAL. All rights granted to and obligations undertaken by the Parties
hereunder will terminate immediately upon the expiration or termination of this
Agreement, except that (a) Sections , 9, 10, 11, 12, 13 and 14 hereof shall
survive any termination or expiration of this Agreement and (b) the termination
of this Agreement for any reason shall not relieve GHS of its obligations to
make full payment to Learning Annex for any and all amounts that are owed
through the date of termination of this Agreement.
13. CONFIDENTIALITY.
13.1 CONFIDENTIAL INFORMATION. Each party acknowledges that
Confidential Information (as hereinafter defined) may be used or disclosed to
the other party during the course of this Agreement. For the purposes of this
Agreement, "Confidential Information" means any information which the party
disclosing the information (the "Discloser") designates as confidential or which
the party receiving the information (the "Receiver") knows or has reason to know
or should know is confidential to the Discloser and the terms of this Agreement.
Confidential Information does not include information which is: (a) already
known by the Receiver at time of disclosure through lawful means; (b) is or
becomes, through no act or fault of Receiver, publicly known; (c) received by
Receiver from a third party free to make such disclosure without breach of any
legal obligations; (d) independently developed by Receiver without reference to
Discloser's Confidential Information; or (e) required to be disclosed by a court
or governmental agency pursuant to a statute, regulation or valid order.
13.2 NON-DISCLOSURE OBLIGATIONS. The Receiver shall hold the
Confidential Information in confidence and shall not disclose the Confidential
Information to third parties nor use the Confidential Information for any
purpose other than as permitted in this Agreement.
13.3 RETURN OF CONFIDENTIAL INFORMATION. Upon termination or expiration
of this Agreement for any reason, Receiver shall return or destroy all copies of
Confidential Information in its possession at Discloser's direction.
14. GENERAL PROVISIONS.
12
14.1 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the applicable laws of the State of California without giving
effect its conflict of laws principles.
14.2 COMPLIANCE WITH LAWS. Each of Learning Annex and GHS at its own
expense shall comply with all applicable laws, regulations, rules, ordinances
and orders regarding its activities related to this Agreement.
14.3 PUBLICITY. Parties shall work together to issue a mutually
acceptable and mutually approved press release announcing this Agreement. The
Parties may issue additional press releases regarding the relationship of the
Parties subject to the prior approval of the other Party. The Parties shall not
disclose the terms of this Agreement to any third party, except as required by
law.
14.4 SEVERABILITY; HEADINGS. If any provision of this Agreement is held
to be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way.
Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of such section, or in any way affect this
Agreement.
14.5 INDEPENDENT CONTRACTORS. The Parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by this Agreement. Neither
Party may take any actions which are binding on the other party. Without
limiting the foregoing, neither Learning Annex nor GHS shall not make any
representations or warranties to third parties on behalf of the other party.
14.6 NOTICE. Any notices required or permitted hereunder shall be given
to the appropriate Party at the address specified in the preamble to this
Agreement or at such other address as the Party shall specify in writing. Unless
otherwise specified, such notice shall be deemed given: upon personal delivery;
if sent by fax, upon confirmation of receipt; if sent by overnight mail carrier,
the next business day or if sent by certified or registered mail, postage
prepaid, three (3) days after the date of mailing.
14.7 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement and the
Exhibits attached hereto set forth the entire understanding and agreement of the
Parties, and supersede any and all prior or contemporaneous oral or written
agreements or understandings between the parties, as to the subject matter of
this Agreement. Except as provided herein, this Agreement may be changed only by
a writing signed by both Parties. Waiver by either Party of a breach of any
provision contained herein must be in writing, and no such waiver shall be
construed as a waiver of any succeeding breach of such provision or a waiver of
the provision itself.
14.8 ASSIGNMENT. This Agreement and the rights and obligations
hereunder may, in GHS's sole discretion, be assigned, in whole or in part, to a
designated affiliate (as defined below) of GHS. Neither this Agreement nor any
of the rights and obligations
13
hereunder may be assigned, in whole or in part, by Learning Annex.
Notwithstanding the foregoing, the terms and conditions of this Agreement shall
be binding upon and inure to the benefit of each of the Parties and their
respective successors (by merger, acquisition or operation of law) and assigns.
For purposes of this Section 14.8, "affiliate" shall mean (a) a corporation or
other entity in which GHS owns, directly or indirectly, more than 50% of the
capital stock or other equity interests the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body of such corporation or other entity and (b) any other person that directly
or indirectly, through one or more intermediaries, controls, is controlled by or
is under common control with, GHS.
14.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed to be one instrument.
14.10 ATTORNEY'S FEES. Should any litigation be commenced between the
Parties in relation to this Agreement, the Party prevailing in such litigation
shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum for attorneys' fees in connection with such litigation.
14.11 AGENCY. Xxxxxxx Xxxxxxxx as Chief Executive Officer of XXXXXXXX
XXXXX COMMUNICATIONS RESOURCES, INC. (the "Agent") is hereby designated and
shall act on behalf of all the Learning Annex entities identified in the caption
to this Agreement on any matter in connection with this Agreement and any matter
s contemplated hereby and is hereby authorized to bind all such entities in
respect thereof. Accordingly, GHS shall only be required to interact with or in
any respect deal with the Agent in any matter involving the Agent or any of such
Learning Annex entities (including without limitation, the giving of notice,
consents or approvals hereunder or any amendment, modification waiver of any
term, condition or provision of this Agreement or to the other agreements and
exhibits contemplated hereby).
14
IN WITNESS WHEREOF, the parties have executed and delivered this
Exclusive License and Marketing Agreement on the date first above written.
GHS, INC. XXXXXXXX XXXXX COMMUNICATION
RESOURCES, INC.
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx By: /s/ Xxxxxxx Xxxxxxxx
Title President ----------------------
Name: Xxxxxxx Xxxxxxxx
Title: C.E.O.
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: President
SGS COMMUNICATION RESOURCES,
INC.,
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: C.E.O.
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: President
XXXXXXXX XXXXX XXXXXXXX
ENTERPRISES, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: C.E.O.
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: President
SGC COMMUNICATION RESOURCES
LLC
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: C.E.O.
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: President
15
LEARNING ANNEX INTERACTIVE LLC
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: C.E.O.
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: President
16
Exhibit A.
ADDITIONAL AGREEMENTS
1. DEFINITIONS. As used in this Exhibit A, the following terms shall have the
following meanings:
1.1 "COMMISSION" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act
1.2 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect from time to time.
1.3 "OTHER SHARES" means at any time those shares of Common Stock which
do not constitute Primary Shares or Registrable Shares.
1.4 "PRIMARY SHARES" means at any time the authorized but unissued
shares of Common Stock or shares of Common Stock held by GHS in its treasury.
1.5 "REGISTRABLE SHARES" means at any time the shares of Common Stock
held by Learning Annex or its successors, assigns or transferees that constitute
Restricted Shares.
1.6 "REGISTRATION DATE" means the date upon which the registration
statement pursuant to which GHS shall have initially registered shares of Common
Stock under the Securities Act for sale to the public shall have been declared
effective.
1.7 "RESTRICTED SHARES" means at any time the Shares and any shares of
Common Stock issued or issuable upon conversion thereof which are held by
Learning Annex and which have not previously been sold to the public pursuant to
a registration statement under the Securities Act or pursuant to Rule 144.
1.8 "RULE 144" means Rule 144 promulgated under the Securities Act or
any successor rule thereto or any complementary rule thereto.
1.9 "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder, all as the same shall be
in effect from time to time.
1.10 "TRANSFER" means any disposition of any Restricted Shares or of
any interest therein which constitutes a sale within the meaning of the
Securities Act, other than any disposition pursuant to an effective registration
statement under the Securities Act and complying with all applicable state
securities and "blue sky" laws.
2. PIGGYBACK REGISTRATION. If GHS at any time proposes for any reason (other
than at the request or demand of any third party) to register Primary Shares or
Other Shares under the Securities Act (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto or other
than in connection with an exchange offer or offering solely to, GHS's
stockholders), it shall promptly give written notice to Learning Annex of its
intention so to register the Primary Shares or Other Shares and, upon the
written request, given within 30 days after delivery of any such notice by GHS,
of Learning Annex to include in such registration Registrable Shares (which
request shall specify the number of Registrable Shares proposed to be included
in such registration), GHS shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
PROVIDED, HOWEVER, that if the managing underwriter advises GHS that the
inclusion of all Registrable Shares and/or Other Shares proposed to be included
in such registration would interfere with the successful marketing (including
pricing) of the Primary Shares proposed to be registered by GHS, then the number
of Primary Shares, Registrable Shares and Other Shares, proposed to be included
in such registration shall be included in the following order:
(i) FIRST, the Primary Shares;
(ii) SECOND,; the Other Shares and
(iii) THIRD, the Registrable Shares.
3. LOCK-UP AGREEMENT. In connection with the registration of shares of Common
Stock under the Securities Act for sale to the public, Learning Annex shall not
sell, make any short sale of, grant any option for the purchase of, or otherwise
dispose of any Restricted Shares (other than those shares of Common Stock
included in such registration pursuant to Sections 2) without the prior written
consent of GHS for a period designated by GHS in writing to the Learning Annex,
which period shall not last more than 180 days after the effective date of such
registration statement. Notwithstanding the foregoing, to the extent that
Learning Annex shall enter into an underwriting agreement that contains
provisions covering one or more issues addressed in this Section 3, the
provisions contained in such underwriting agreement shall control as to the
party or parties so entering into such underwriting agreement.
4. INFORMATION TO BE PROVIDED BY LEARNING ANNEX. Whenever under this Agreement
Registrable Shares are being registered, Learning Annex shall, as a condition to
the inclusion of Registrable Shares held it in such registration, provide GHS on
a timely basis with such information and materials as GHS may reasonably request
in order to effect the registration of the Registrable Shares.
5. RULE 144. With a view to making available Learning Annex the benefits of Rule
144 under the Securities Act, GHS agrees to use its best efforts to make
available adequate current public information with respect to it within the
meaning of, and as required pursuant to, Rule 144(c).
6. TERMS AND CONDITIONS OF REGISTRATION. In connection with any registration
pursuant to this Agreement, and subject to the other terms and conditions of
this Agreement, GHS shall in its sole discretion determine the terms and
conditions of such registration, including, without limitation, the timing
thereof; the scope of the offering contemplated thereby (i.e., whether the
offering shall be a combined primary offering and a secondary offering or
limited only to a secondary offering); the manner of distribution of Registrable
Shares; the period of effectiveness of registration for permissible sales of
Registrable Securities thereunder consistent with the plan of distribution
agreed upon by GHS and Learning Annex; and all other material aspects of the
registration and the registration process. In connection therewith, GHS may
require that any such registration be underwritten, in which event (i) the
managing underwriter shall be selected by GHS and (ii) the inclusion of
Registrable Shares in such registration shall be conditioned upon each holder
thereof entering into an underwriting agreement in customary form with such
underwriters participating in such registration.
7. EXPENSES. All expenses incurred by GHS in effecting a registration under this
Agreement, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and "blue-sky" laws, printing expenses, and the fees
and expenses of counsel and accountants, shall be borne by GHS; PROVIDED,
HOWEVER, that under all circumstances all underwriting discounts, income and
transfer taxes, if any, selling commissions and legal fees and expenses of
counsel to Learning Annex participating in any registration under this Agreement
shall not be borne by GHS but shall be borne solely by Learning Annex.
8. TRANSFER OF SECURITIES.
8.1 RESTRICTIONS ON TRANSFER. Learning Annex and each subsequent
transferee of the Shares (each, a "Holder") acknowledges that the Shares have
not been and will not be registered under the Securities Act, that the Shares
are being or will be issued pursuant to an exemption from registration under the
Securities Act and that such shares constitute "restricted securities" under
Rule 144. Accordingly, Shares held by a Holder shall not be sold, transferred,
assigned, pledged, encumbered or otherwise disposed of (each, a "Transfer")
except upon the conditions specified in this Section 8.1 (which provides for
certain additional restrictions on transfer), which conditions are intended to
ensure compliance with the provisions of the Securities Act and this Agreement.
8.2 RESTRICTIVE LEGEND. Each certificate for the Shares and each
certificate for any such Shares issued to subsequent transferees of any such
certificate shall (unless otherwise permitted by the provisions of Sections 8.3
and 8.4) be stamped or otherwise imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY APPLICABLE STATE
SECURITIES OR "BLUE-SKY" LAWS. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT OR LAWS. ADDITIONALLY, THE
TRANSFER OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS
SPECIFIED IN SECTION 8 OF EXHIBIT A TO THE EXCLUSIVE LICENSE
AND MARKETING AGREEMENT DATED AS OF MAY __, 1999, AMONG GHS,
INC. AND THE LEARNING ANNEX, AND NO TRANSFER OF THESE
SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS
HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF ALL APPLICABLE
CONDITIONS, GHS, INC. HAS AGREED TO DELIVER TO THE HOLDER
HEREOF A NEW CERTIFICATE, NOT BEARING THIS LEGEND, FOR THE
SECURITIES REPRESENTED HEREBY REGISTERED IN THE NAME OF THE
HOLDER HEREOF."
8.3 NOTICE OF TRANSFER. Holder agrees, prior to any Transfer of Shares
to give written notice to GHS of Holder's intention to effect such Transfer and
to comply in all other respects with the provisions of this Section 8. Each such
notice shall describe the manner and circumstances of the proposed Transfer and
shall be accompanied by the written opinion, addressed to GHS, of counsel for
the Holder, stating that in the opinion of such counsel (which opinion and
counsel shall be reasonably satisfactory to GHS), such proposed Transfer does
not involve any transaction requiring registration or qualification of such
shares under the Securities Act or the securities or "blue-sky" laws of any
relevant state of the United States. Such Holder shall thereupon be entitled to
Transfer such shares in accordance with the terms of the notice delivered by it
to GHS. Each certificate or other instrument evidencing the securities issued
upon the Transfer of any such shares (and each certificate or other instrument
evidencing any untransferred balance of such shares) shall bear the legend set
forth in Section 8 unless (a) in such opinion of counsel registration of any
future Transfer is not required by the applicable provisions of the Securities
Act and applicable state securities or "blue-sky" laws or (b) GHS shall have
waived the requirement of such legends. No Holder shall Transfer any Shares
until such opinion of counsel has been given (unless waived by GHS or unless
such opinion is not required in accordance with the provisions of this Section
8).
8.4 REMOVAL OF LEGENDS, ETC. Notwithstanding the foregoing provisions
of this Section 8, the restrictions imposed by this Section 8 upon the
transferability of any Shares held by a Holder shall cease and terminate when
(a) any such shares are sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act or as otherwise contemplated by
Section 8(c) and, pursuant to Section 8(c), the Shares so transferred are not
required to bear the legend set forth in Section 8(b) or (b) the holder of such
shares has met the requirements for Transfer of such Shares pursuant to
subparagraph (k) of Rule 144. Whenever the restrictions imposed by this Section
8 shall terminate, as herein provided, each Holder holding Shares as to which
such restrictions have terminated shall be entitled to receive from GHS, without
expense, a new certificate not bearing the restrictive legend set forth in
Section 8(b) and not containing any other reference to the restrictions imposed
by this Section 8.
9. INDEMNIFICATION.
9.1 In connection with any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, GHS shall indemnify and hold
harmless Learning Annex against any losses, claims, damages or liabilities,
joint or several (or actions in respect thereof), to which Learning Annex may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the registration statement under which such Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or,
with respect to any prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or any
violation by GHS of the Securities Act or state securities or "blue-sky" laws
applicable to GHS and relating to action or inaction required of GHS in
connection with such registration or qualification under state securities or
"blue-sky" laws; PROVIDED, HOWEVER, that GHS shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in said registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and in
strict conformity with written information furnished to GHS by Learning Annex
with respect to information regarding such the Learning Annex expressly for
inclusion therein.
9.2 In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, Learning Annex shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
8.1) GHS, each director of GHS, each officer of GHS who shall sign such
registration statement,
each underwriter, broker or other Person acting on behalf of GHS and each Person
who controls any of the foregoing Persons within the meaning of the Securities
Act with respect to any statement or omission from such registration statement,
any preliminary prospectus or final prospectus contained therein or otherwise
filed with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Share, if such
statement or omission was made in reliance upon and in strict conformity with
written information furnished to GHS or such underwriter by Learning Annex
expressly for inclusion in such registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document, PROVIDED that the liability
of the Learning Annex under this Section 8.2 shall not exceed the aggregate
proceeds received by the Learning Annex upon the sale of Registrable Shares by
the Learning Annex pursuant to such registration.
9.3 Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 9, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; PROVIDED, HOWEVER, that an indemnified party shall have the
right to retain its own counsel, with the reasonable fees and expenses to be
paid by the indemnifying party, if such indemnified party shall have reasonably
concluded that representation of such indemnified party or parties by the
counsel retained by the indemnifying party or parties would be inappropriate due
to actual or potential differing interests between such indemnified party or
parties and any other party represented by such counsel in such proceeding.
9.4 If the indemnification provided for in this Section 9 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
10. TERMINATION. The terms of Section 2 this Exhibit A shall terminate and be of
no further force or effect on the earlier to occur of (i) the third anniversary
of the date hereof (ii) when there shall not be any Restricted Shares and (iii)
at such time as the provisions of Rule 144(k) are applicable to the Restricted
Shares then held by Learning Annex.
11. REPRESENTATIONS AND WARRANTIES. REPRESENTATIONS AND WARRANTIES OF THE THE
LEARNING ANNEX. The Learning Annex represents and warrants to the Corporation as
follows:
11.1 ACCREDITED INVESTOR. If the Learning Annex has checked the box
located on Exhibit B to the Agreement, it is an "accredited investor" (as such
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act).
11.2 INVESTMENT INTENT. The Learning Annex is acquiring the Shares for
his own account, for investment and not with a view to, or for resale in
connection with, any distribution thereof, nor with any present intention of
distributing or reselling the same or any part thereof in any transactions that
would be in violation of the Securities Act of or any state securities or
"blue-sky" laws.
11.3 RESTRICTED SECURITIES. The Learning Annex understands (i) that the
Shares will not be registered under the Securities Act or any state securities
or "blue-sky" laws by reason of their issuance in a transaction exempt from the
registration requirements of the Securities Act or any state securities or
"blue-sky" laws, (ii) that the Shares must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or any
state securities or "blue-sky" laws or is exempt from such registration, (iii)
that, except as set forth in this Exhibit A, GHS is under no obligation to so
register any Shares and (iv) that the certificate(s) evidencing the Shares will
be imprinted with a legend that prohibits the transfer substantially as set
forth in Section 8.2 hereof unless they are registered or such registration is
not required.
11.4 RULE 144. The Learning Annex understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to such
person) promulgated under the Securities Act ("Rule 144") depends on the
satisfaction of various conditions and that, if applicable, Rule 144 may only
afford the basis for sales under certain circumstances only in limited amounts.
The Learning Annex understands that at the time it wishes to sell the Shares,
GHS may not be satisfying the current public information requirements of Rule
144, and that, in such event, the Learning Annex would be precluded from selling
the securities under Rule 144 even if the applicable minimum holding period
provided thereunder had been satisfied.
11.5 ACCESS TO INFORMATION; EXPERIENCE. The Learning Annex has had
access during the course of this transaction and prior to the sale of the Shares
to all information necessary to enable the Learning Annex to evaluate the merits
and risks of accepting the
Shares pursuant to the Agreement and the Learning Annex has had an opportunity
to discuss with representatives of GHS the business and financial affairs of GHS
and to obtain such additional information, to the extent that GHS possesses such
information or could acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information to which GHS has had access
and all questions raised by the Learning Annex have been answered to its full
satisfaction. The Learning Annex can afford to suffer a complete loss of its or
his investment in the Shares.
11.6 SPECULATIVE INVESTMENT. The Learning Annex understands that the
Corporation has a limited financial and operating history, that the Common
Shares are a speculative investment which involve a high degree of financial
risk, and that there is no assurance of any economic, income or tax benefit from
such investment.
EXHIBIT B
FORM OF INVESTOR SUITABILITY QUESTIONNAIRE
The following is an investor questionnaire to be completed by
the Learning Annex to qualify the Learning Annex as an "accredited investor" in
GHS under the Federal and state securities and blue-sky law.
12. ACCREDITED INVESTOR CERTIFICATION. The Purchaser represents and warrants
that he comes within one category marked below, and that for any category
marked, it has truthfully set forth, where applicable, the factual basis or
reason the Learning Annex comes within that category. ALL INFORMATION IN
RESPONSE TO THIS SECTION WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned
agrees to furnish any additional information which GHS deems necessary in order
to verify the answers set forth below.
Category A _____ The undersigned is an individual (not a partnership,
corporation, etc.) whose individual net worth, or
joint net worth with his or her spouse, presently
exceeds $1,000,000.
Explanation: In calculating net
worth you may include equity in
personal property and real estate,
including your principal residence,
cash, short-term investments, stock
and securities. Equity in personal
property and real estate should be
based on the fair market value of
such property less debt secured by
such property.
Category B _____ The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of
$200,000 in each of the two most recent years, or
joint income with his or her spouse in excess of
$300,000 in each of those years (in each case
including foreign income, tax exempt income and full
amount of capital gains and losses but excluding any
income of other family members and any unrealized
capital appreciation) and has a reasonable
expectation of reaching the same income level in the
current year.
Category C _____ The undersigned is a director or executive officer of
GHS.
Category D _____ The undersigned is a bank, a savings and loan
association, insurance company, registered investment
company, registered business development company,
licensed small business investment company ("SBIC"),
or employee benefit plan within the meaning of Title
1 of ERISA and (a) the investment decision is made by
a plan fiduciary which is either a bank. savings and
loan association. insurance company or registered
investment advisor, or (b) the plan has total assets
in excess of $5,000,000 or is a self directed plan
with investment decisions made solely by persons that
are accredited investors.
------------------
------------------
(describe entity)
Category E_____ The undersigned is a private business development
company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
------------------
------------------
(describe entity)
Category F_____ The undersigned is a corporation, partnership,
business trust, or non-profit organization within the
meaning of Section 501(c)(3) of the Internal Revenue
Code, in each case not formed for the specific
purpose of acquiring the Securities and with total
assets in excess of $5,000,000.
------------------
------------------
(describe entity)
Category G_____ The undersigned is a trust with total assets in
excess of $5,000,000, not formed for the specific
purpose of acquiring the Securities, where the
purchase is directed by a "sophisticated person" as
defined in Regulation 506 (b)(2)(ii).
Category H_____ The undersigned is an entity all the equity owners of
which are "accredited investors" (as such term is
defined in Rule 501(a) as promulgated under the
Securities Act of 1933, as amended (the "Securities
Act")) within one or more of the above categories. If
relying upon this Category alone, each equity owner
must complete a separate copy of this Agreement.
------------------
------------------
(describe entity)
Category I_____ The undersigned is not within any of the categories
above and is therefore not an "accredited investor".
---------------------------------------------------- ---------------------------------------------------------
__________________________________ __________________________________
Signature Signature (if purchasing jointly)
---------------------------------------------------- ---------------------------------------------------------
__________________________________ __________________________________
Name (Typed or Printed) Name (Typed or Printed)
---------------------------------------------------- ---------------------------------------------------------
__________________________________ __________________________________
Residence (Typed or Printed) Residence (Typed or Printed)
---------------------------------------------------- ---------------------------------------------------------
__________________________________ __________________________________
City, State and Zip Code City, State and Zip Code
---------------------------------------------------- ---------------------------------------------------------
__________________________________ __________________________________
Tax Identification or Social Security Number Tax Identification or Social Security Number
---------------------------------------------------- ---------------------------------------------------------
Telephone No.: Business______________________ Telephone No.: Business______________________
Home__________________________ Home__________________________
---------------------------------------------------- ---------------------------------------------------------
Name in which securities should
beissued:_______________________________
---------------------------------------------------- ---------------------------------------------------------
Dated: _________, 1999 Dated: _________, 1999
---------------------------------------------------- ---------------------------------------------------------
EXHIBIT C
LEARNING ANNEX ADVERTISING POLICIES
EXHIBIT D
EDITORIAL SCHEDULE
EXHIBIT E
EXISTING RIGHTS
SCHEDULE 1.7
LEARNING ANNEX MARKS
