Exhibit 10.3 Amended and Restated Employment Agreement, dated as of
January 1, 2002, by and between Medialink Worldwide
Incorporated and Xxxxxxx Xxxxxx.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
dated as of January 1, 2002, by and between MEDIALINK WORLDWIDE INCORPORATED, a
Delaware corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Medialink" or the "Corporation"), and XXXXXXX XXXXXX, an individual having a
residence at 0000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Employee").
W I T N E S S E T H:
WHEREAS, the Corporation and the Employee are parties to an
Employment Agreement dated as of June 16, 1997 (the "Original Employment
Agreement");
WHEREAS, the parties wish to amend and restate the Original
Employment Agreement such that the Original Employment Agreement shall be
terminated and superceded by this Agreement;
NOW, THEREFORE, the parties mutually agree as follows:
(1) Employment. As of the date hereof (the "Effective Date") the
Corporation employs the Employee and the Employee accepts such
employment, as an executive of the Corporation, subject to the
terms and conditions set forth in this Agreement.
(2) Duties.
(1) Title, Duties and MCTV Services. The Employee shall
be employed as a Senior Vice President of the
Corporation and the President and Chief Executive
Officer of Medialink's MCTV Division ("MCTV"). The
Employee shall perform the duties of the Chief
Executive Officer of MCTV and shall report only to
the Corporation's Chief Executive Officer and the
Board of Directors of the Corporation. During the
term of this Agreement, the Employee shall devote all
of his available business time to the performance of
his duties hereunder, except that he may devote up to
10 hours per week to a non-competitive consulting
business described in Section 13.3 hereof. MCTV shall
provide internal and external video communications
services and consulting for corporations, the public
relations industry and non-profit groups. The
external services of MCTV shall include video news
releases, video conferences, video primers, corporate
image films and any video presentation tool targeted
to a designated audience. The internal services shall
include live and taped employee communications
programs, management presentations and advising
clients on strategy and development of programming to
reach desired audiences.
(2) Duties as MCTV President. The Employee shall be
responsible for the creative content and operations
(including the hiring and firing of personnel,
establishing compensation, including salary and
bonuses, in each case with the approval of the Chief
Executive Officer of the Corporation) of MCTV, all in
accordance with an agreed budget for MCTV. Employee
will use his best efforts to manage the client
accounts of MCTV to achieve the highest standards of
corporate video communications. The Employee shall
supervise the staff of MCTV listed on Schedule A
attached hereto and their replacements and
substitutes, with responsibility and authority over
the work effort and product results. The Employee,
working with the Corporation's sales and marketing
and operations executives, will develop a plan for
referrals of the Corporation's clients to
MCTV as well as targeting and developing new clients
of the MCTV Division in accordance with, but not
limited to, the action plan set forth in Exhibit A
attached hereto. Each of the Corporation and the
Employee shall be obligated to execute the tasks
outlined in the action plan set forth in Exhibit A
attached hereto. Employee will also train and advise
the Corporation's account executives in the processes
and procedures required to qualify, present clients
and refer accounts to MCTV. The Employee will
identify, hire and train, as approved by the
Corporation, additional MCTV media consultants as
business growth requires, all in accordance with an
agreed budget for MCTV and to develop the appropriate
production capabilities needed for client
assignments, with the goal being to achieve maximum
consolidation with the Corporation's operations, when
possible. Any additional MCTV employees hired by
Employee will be deemed to be a part of the staff
members of MCTV listed on Schedule A attached hereto.
The Employee shall regularly communicate with the
senior sales, operations and international staff of
the Corporation to continually analyze and develop
cross-referrals of MCTV client organizations and
other customers and clients of the Corporation. The
Employee shall use his best efforts to maximize the
resources of the Corporation and MCTV to enhance the
revenues and profitability of the Corporation.
(3) Duties as Corporate Senior Vice President. The
Employee will attend all Steering Committee meetings
and all appropriate meetings of all departments and
will review all relevant plans and reports related
thereto in order to participate in all aspects of
planning, development and operations, particularly in
order to assist in developing new and alternative
business strategies and the implementation of
approved plans, with the intent of maximizing the
business results of the Corporation.
(4) Attendance at Meetings of the Board of Directors. The
Corporation shall invite the Employee to attend and
observe at all meetings of the Board of Directors of
the Corporation.
(3) Term of Employment. The term of the Employee's employment
shall commence on the Effective Date and shall continue
through December 31, 2004 or until earlier terminated pursuant
to Section 5 hereof (the "Employment Term").
(4) Compensation of Employee.
(1) Compensation.
(1) The Corporation shall pay to the Employee as
annual compensation for his services
hereunder a salary ("Salary") equal to the
greater of: (i) $250,000, if Pre-Tax Net
Income (as defined in Section 4.3 hereof) is
less than or equal to $1,000,000 for such
calendar year; (ii) $375,000, if Pre-Tax Net
Income is greater than $1,000,000 and less
than or equal to $1,500,000 for such
calendar year; and (iii) $500,000, if
Pre-Tax Net Income is greater than
$1,500,000 and less than or equal to
$2,000,000 for such calendar year; provided,
however, that: (1) for the calendar year
ending December 31, 2002 only, the Employee
shall receive $500,000 in Salary if Pre-Tax
Net Income is greater than $1,000,000 and
less than or equal to $2,000,000 for such
calendar year, and (2) for the first six
months of 2003, the Employee shall receive
$250,000 in Salary if Pre-Tax Net Income is
greater than $500,000 and less than or equal
to $1,000,000 for such six month period.
Notwithstanding the foregoing, in the event
that Pre-Tax Net Income is greater than
$2,000,000 for any calendar year hereunder,
the Employee shall receive as Salary the sum
of: (i) 25% of all Pre-Tax Net Income up to
and including $2,500,000 for any such
calendar year, plus (ii) 30% of any Pre-Tax
Net Income in excess of $2,500,000 and up to
and including $3,000,000 for such calendar
year, plus (iii) 35% of any Pre-Tax Net
Income in excess of $3,000,000 for such
calendar year.
(2) During the term of this Agreement, the
Employee's Salary shall be payable
semi-monthly less such deductions as shall
be required to be withheld by applicable
laws and regulations.
(3) Initially, the Employee's Salary payments
shall be based upon the assumption that
Pre-Tax Net Income shall be $2,000,000 per
calendar year. In the event that Pre-Tax Net
Income for each semi-annual period ending
June 30th and December 31st during the
Employment Term has been determined to have
averaged (together with the prior
semi-annual period during the Employment
Term or if computing the initial semi-annual
period during the Employment Term, then
based only on such semi-annual period) less
than $1,000,000, the Employee's Salary
payments shall be adjusted commencing on the
first day of the next succeeding calendar
quarter after determination of Pre Tax Net
Income pursuant to 4.1(e) below, reducing
all payments during such quarter evenly by
the average amount overpaid to the Employee
during the preceding two consecutive
semi-annual periods. In the event that
Pre-Tax Net Income for each semi-annual
period ending June 30th and December 31st
during the Employment Term has been
determined to have averaged (together with
the prior semi-annual period during the
Employment Term or if computing the initial
semi-annual period during the Employment
Term, then based only on such semi-annual
period) more than $1,000,000, the Employee's
Salary payments shall be adjusted commencing
on the first day of the next succeeding
calendar quarter after determination of Pre
Tax Net Income pursuant to 4.1(e) below,
increasing all payments during such quarter
evenly by the average amount underpaid to
the Employee during the preceding two
consecutive semi-annual periods; provided,
however, that 70% of any underpayments up to
an aggregate of $125,000 shall be held by
the Corporation in a segregated interest
bearing account until the end of the
Employment Term in accordance with Section
4.1(e) below; provided, further, that no
more than $62,500 shall be held by the
Corporation based on the initial semi-annual
period ending June 30, 2002 and no more than
$90,000 shall be held by the Corporation
based on the full year ended December 31,
2002; and provided, further, that, subject
to Section 4.1(e) below, the segregated
account shall not be affected by any
overpayments.
(4) The Corporation shall determine Pre-Tax Net
Income within ninety (90) days of each June
30th and December 31st and a copy of such
determination shall be submitted to the
Employee within such time period. If within
twenty (20) days of receipt of such copy,
Employee shall disagree as to the
calculation, then the Employee shall provide
prompt notice thereof to the Corporation
within such twenty (20) day period and the
Corporation and the Employee shall seek to
resolve such disagreement within ten (10)
days of such notice. If the Corporation and
the Employee cannot resolve such
disagreement within such ten (10) day
period, then Ernst & Young or its successor
or assign (the "Selected Firm") shall then
be authorized to determine the Pre-Tax Net
Income. The determination by the Selected
Firm shall be completed within sixty (60)
days after their appointment and shall be
final, binding and conclusive upon the
parties hereto. The cost of the Selected
Firm's determination of the Pre-Tax Net
Income shall be borne by each of the
Employee and the Corporation on an equal
basis. Until such time as the Selected Firm
has made a final determination of the Pre
Tax Net Income, the Corporation shall be
entitled to adjust the Employee's
semi-monthly Salary payments pursuant to
Section 4.1(a) based on its original
determination of Pre-Tax Net Income;
provided, however, that the Corporation
shall deposit the disputed amount of Salary
in a segregated interest bearing account
pending the Selected Firm's determination of
Pre-Tax Net Income.
Notwithstanding anything to the contrary contained herein, with respect to the
initial semi-annual period ending June 30, 2002, the Corporation shall use its
reasonable efforts to deliver its determination of Pre-Tax Net Income to the
Employee and resolve any disagreements as to Pre-Tax Net Income with the
Employee, within sixty (60) days of June 30, 2002. In the event any such
disagreements are not resolved within such time period, then the dispute
resolution method set forth in this paragraph 4.1(d) shall apply. In the event
any such disagreements are fully resolved within such sixty-day time period,
then, subject to the requirement that certain amounts be placed in a segregated
account pursuant to Section 4.1(c) above, any underpayment shall be paid to the
Employee in a single payment, which will be paid in the next available payroll
period.
(5) Within ninety (90) days of the end of the
Employment Term (whether as a result of the
expiration of the stated term of employment
or upon earlier termination pursuant to
Section 5 hereof), the Corporation shall
determine whether the Corporation overpaid
or underpaid the Employee during the
Employment Term, based on the amounts
actually paid to the Employee pursuant to
Section 4.1(c) as compared to the amounts
actually due to the Employee pursuant to
Section 4.1(a). A copy of such determination
shall be submitted to the Employee during
such ninety (90) day period. If within
thirty (30) days of receipt of such
determination, Employee shall disagree as to
the calculation, then the Employee shall
provide prompt notice thereof to the
Corporation within such thirty (30) day
period and the Corporation and the Employee
shall seek to resolve such disagreement
within twenty (20) days. If the Corporation
and the Employee cannot resolve such
disagreement within such twenty (20) day
period, then Ernst & Young or successor (the
"Selected Firm") shall then be authorized to
determine the amount of any overpayments or
underpayments. The determination by the
Selected Firm shall be completed within
sixty (60) days after their appointment and
shall be final, binding and conclusive upon
the parties hereto. The cost of the Selected
Firm's determination shall be borne by each
of the Employee and the Corporation on an
equal basis.
(1) Upon the Corporation's receipt of
the Selected Firm's determination,
or an agreement between the
Corporation and the Employee as to
the amount overpaid or underpaid,
or upon expiration of the thirty
(30) day period without notice of
disagreement from the Employee, the
Corporation shall send a notice to
the Employee of the amount
determined to have been overpaid or
underpaid (the "Final
Determination"). To the extent
there were no overpayments
determined to have been made by the
Corporation to the Employee, the
Corporation shall distribute to the
Employee all funds then held in the
segregated account. To the extent
of any overpayments made by the
Corporation to the Employee, the
Corporation shall be authorized to
remove from the segregated account
the amount of any such
overpayments, plus interest accrued
thereon, and shall distribute the
balance of funds then held in the
segregated account, if any, plus
interest accrued thereon, to the
Employee.
(2) To the extent that it has been
determined that the Corporation
overpaid the Employee an amount in
excess of the amounts then held in
the segregated account, the
Employee shall pay such excess
amount in one lump sum to the
Corporation within 15 days of the
Final Determination. To the extent
that it has been determined that
the Corporation underpaid the
Employee, then in addition to the
release of all amounts, including
interest, then held in the
segregated account to the Employee,
the Corporation shall pay the
amount of such underpayment to the
Employee in one lump sum within 15
days of the Final Determination,
subject to such deductions as shall
be required to be withheld by
applicable law and regulations. The
provisions of this Section 4.1(e)
shall survive the Employee's
employment hereunder.
(6) All compensation earned by the Employee,
including amounts paid to Employee from the
segregated account, shall be paid only to
the Employee, except in the case of the
Employee's death, in which case it shall be
paid to the Employee's estate.
(2) Executive Bonus Pool. In addition to his Salary, the
Employee shall be eligible to receive a bonus
pursuant to the Executive Bonus Plan (the "Plan
Bonus"). The terms and amount of payments, if any,
under such Plan are subject to the absolute
discretion of the Board of Directors and the
Compensation Committee thereof.
(3) Pre-Tax Net Income Defined. The term "Pre-Tax Net
Income" as used in this Agreement shall mean the MCTV
Division Revenue, as such term is hereinafter
defined, attributable to the performance of services
by the MCTV Division less (i) Direct Costs, as
hereinafter defined, (ii) Salary and Related Costs,
as hereinafter defined, (iii) Telephone Charges, as
hereinafter defined, (iv) General
and Administrative Costs, as hereinafter defined; (v)
Corporate Overhead, as hereinafter defined; and (vi)
Overdue Accounts, as hereinafter defined, prior to
the payment or provision for any Federal, state or
local income or other taxes, but after all expenses
incurred or allocated to the MCTV Division, as
computed by the Corporation's accountants employing
the same methodology as employed under the Original
Employment Agreement. The MCTV Division Pre-Tax Net
Income shall be calculated on the operating results
of the MCTV Division on the basis of generally
accepted accounting principles using the
Corporation's standard accounting practices and
policies, excluding goodwill amortization and gains
and losses arising from the disposition of assets not
in the ordinary course of business. Direct costs and
overhead accruals will be calculated ninety (90) days
after the end of the relevant period.
"Direct Costs" shall mean those costs incurred solely for the
purpose of a specific revenue generating project. Direct costs include, but are
not limited to, camera crews and equipment, playout, uplink and satellite time,
tape dubbing and distribution charges, editing and studio costs. In addition,
direct costs include the use of third party labor for production, editing etc.
In the event that the MCTV Division uses the Corporation's employees for
production etc. they will be charged to the MCTV Division on the basis of the
rates on Schedule B hereto. The Schedule B rates will be adjusted at the
beginning of each of calendar year 2003 and 2004 to reflect actual changes in
the Corporation's cost structure. The MCTV Division will be charged for the use
of the Corporation's services such as video and audio distribution in accordance
with Schedule B. Direct costs will also include sales commissions on MCTV
Division Revenue including commissions paid to the Corporation's sales people
arising from that portion of the MCTV Division Revenue set forth in subparagraph
(iii) of the definition of MCTV Division Revenue. The MCTV Division shall be
charged for commissions paid to the Corporation's sales person who generated the
MCTV Division client revenue on all MCTV Division projects for that client for a
minimum of 12 months. Subsequent to the 12 month period, if the MCTV Division no
longer requires the sales person's involvement, the sales person will be
notified that he/she is no longer responsible for the client and will receive no
further commissions from MCTV with respect to that client, after an agreed upon
period.
"Salary and Related Costs" shall mean all employment costs of
MCTV Division employees, including but not limited to, salaries and bonuses,
medical, dental and disability premiums, employers contributions as to any 401K
or other pension plan together with the costs of administering such plans and
employment taxes but excluding: (i) the Employee's Salary and Plan Bonus, if
any, (ii) the cost of the Employee's medical, dental and group term life
insurance and (iii) one-half of the salary of the MCTV Division receptionist,
Xxxxx Xxxxx, or her successor. Wherever practicable, such costs will be
allocated to MCTV Division on an actual basis. In all other instances, the cost
will be allocated to MCTV Division on a pro rata basis calculated by multiplying
(x) the actual cost of the Corporation (including the MCTV Division) by (y) (i)
the number of MCTV Division employees associated with that cost divided by (ii)
the total number of the Corporation's employees (including the MCTV Division
employees) associated with that cost ("Employee Allocation Method"). Xxxxx
Xxxxxxxxxx and his staff are specifically excluded and are not to be considered
part of the MCTV Division. Any compensation charged to MCTV Division employees
arising from the exercise of stock options granted to such employees by the
Corporation shall not be deducted from Pre-Tax Net Income except for FICA and
FUTA, if any, paid by the Corporation.
"Telephone Charges" shall mean the sum of: (i) those telephone
charges which shall be allocated to the MCTV Division on a pro rata basis
calculated by multiplying (x) the total telephone charges of the Corporation by
(y) a fraction, the numerator of which is the MCTV Division Revenue and the
denominator of which is the total United States revenue of the Corporation
(including the MCTV Division Revenue) ("Revenue Allocation Method") and (ii)
those telephone charges which are specifically identified as actual telephone
charges of the MCTV Division.
"General and Administrative Costs" shall mean all other costs
incurred by MCTV Division that were not included in Direct Costs or Salary and
Related Costs and excluding interest expense.
General and Administrative Costs incurred solely for the MCTV Division will be
charged directly to MCTV Division on an actual basis wherever practicable
("Directly Charged Costs"). In all other instances the cost will be allocated to
MCTV Division on a pro rata basis in accordance with Schedule C attached hereto.
"Corporate Overhead" shall mean costs charged by the
Corporation to the MCTV Division to cover administrative costs, marketing
support and other overhead costs and shall be equal to 1.8% of the MCTV
Division's revenue. The parties hereto acknowledge that the MCTV Division shall
be fully transferred onto the Epicor accounting system as soon as practicable at
no cost to the MCTV Division.
"Overdue Accounts" shall mean accounts receivable which (i)
remain unpaid for more than 120 days from the original date of invoice; (ii) are
subject to a dispute or claim by the account debtor; (iii) are owed by an
account debtor which is insolvent, is the subject of an insolvency proceeding or
whose creditworthiness is not satisfactory to the Corporation.
"MCTV Division Revenue" shall mean all revenue derived from
(i) clients of the MCTV Division; (ii) revenue generated by the MCTV Division
edit suite, and the MCTV Division will charge the Corporation for the use of the
edit suite in accordance with Schedule B; and (iii) revenue from clients of the
Corporation introduced to the MCTV Division earned as agreed by the New Business
Task Force, as hereinafter defined; provided, however that for all traditional
broadcast revenue, such as Video News Releases, Audio News Releases, Satellite
Media Tours and Radio Media Tours, the MCTV Division will be credited for
revenue it generates in excess of the average of the previous two years
broadcast revenue of the Corporation from such existing clients for such
services. Notwithstanding the foregoing, Xxxxx Xxxxxxxxxx and his staff shall
not be considered part of the MCTV Division. Accordingly, revenues and expenses
generated by Xx. Xxxxxxxxxx, his staff and his clients will not be included in
the calculation of Pre-Tax Net Income of MCTV. The parties hereto acknowledge
that Xx. Xxxxxxxxxx and his staff will remain in their current space pending any
expansion in the approved budget of the MCTV Division and will continue to have
access to the tower/planning room, and the MCTV Division will charge the
Corporation for dubs made by Xx. Xxxxxxxxxx and his staff in that room at the
same rates being charged by the Corporation, in accordance with Schedule B.
(4) New Client Approval. Prior to the MCTV Division
soliciting or accepting any new clients who are then
or during the last twelve (12) months were clients of
the Corporation, generating at least $25,000 in
revenue during such twelve (12) month period, MCTV
must obtain the prior written approval of the New
Business Task Force. The New Business Task Force,
which shall consist of an equal number of
representatives of the Corporation and the MCTV
Division, with the Corporation's Chief Financial
Officer as the chairman, shall meet once every two
(2) months to discuss referral opportunities, client
conflicts and the appropriateness of referral fees or
other compensation. Prior to the Corporation
soliciting or accepting any new clients who are then
or during the last twelve (12) months were clients of
the MCTV Division, generating at least $25,000 in
revenue during such twelve (12) month period, the
Corporation must obtain the prior written approval of
the Employee.
(5) Expenses. The Corporation shall pay or reimburse the
Employee for all reasonable and necessary business,
travel or other expenses incurred by him within the
usual policy of the Corporation, upon proper
documentation thereof, in connection with the
rendition of the services contemplated hereunder.
(6) Benefits. During the term of this Agreement, the
Employee shall be entitled to participate in such
pension, profit sharing, group insurance, option
plans, hospitalization, group health benefit plans
and all other benefits and plans as the Corporation
provides to its senior executive officers. Any air
travel by Employee in connection with his duties
hereunder shall be on business class and
shall be at the expense of the Corporation. During
the term of his employment hereunder, the Corporation
shall pay automobile lease expenses for the Employee
in connection with his duties hereunder. The
aggregate monthly expense of the Corporation for such
automobile lease payments, and associated maintenance
and insurance payments, shall not exceed $1,600 per
month. The Corporation shall reimburse Employee for
all costs associated with telephone and facsimile
lines in each of the Employee's two (2) residences, a
car telephone in his automobile and mobile cellular
telephone, all of which shall be used exclusively for
business related matters.
(5) Termination.
(1) Termination of Employment. This Agreement shall
terminate upon the death, Disability, as hereinafter
defined, termination of employment of the Employee
For Cause, as hereinafter defined, termination of the
Employee for the Failure to Perform, as hereinafter
defined, termination of the employment of Employee
without cause or because Employee wrongfully leaves
his employment hereunder. The procedure set forth in
Section 4.1(e) to settle up amounts paid as compared
to amounts due shall apply to any termination
pursuant to this Section 5.
(2) Termination For Cause; Failure to Perform; Wrongful
Departure. In the event of a termination For Cause, a
termination for Failure to Perform or because
Employee wrongfully leaves his employment hereunder,
the Corporation shall pay Employee all accrued and
unpaid Salary and vacation through the date of
termination.
(3) Termination Without Cause. In the event of a
termination without cause, the Employee shall be
entitled to continue to participate in the
hospitalization, group health benefit and disability
plans of the Corporation on the same terms and
conditions as immediately prior to his termination
and shall receive his Salary, and Plan Bonus, if any,
for the period equal to the earlier of (i) the date
the Employee commences employment elsewhere; or (ii)
the date the term would have expired pursuant to
Section 3 of this Agreement had the Employee not been
terminated; provided, however, that: (i) for purposes
of determining the amount of the Employee's Salary in
future years, it shall be assumed that the Pre-Tax
Net Income for the four full quarterly periods
immediately prior to termination (after all
adjustments have been made pursuant to 4.1(a) and
4.1(e) hereof) is the Pre-Tax Net Income for each
calendar year remaining after termination (which
amount shall be pro-rated for any partial period
remaining after termination) and if less than four
full quarters have elapsed prior to termination then
any quarterly results that have elapsed shall be
annualized to determine the assumed Pre-Tax Net
Income; and (ii) for purposes of determining the
amount of the Employee's Plan Bonus in future years,
it shall be assumed that the Plan Bonus shall be
equal to the Plan Bonus, if any, paid to the Employee
for the calendar year immediately preceding the year
in which the termination occurred.
(4) Termination Upon Death. In the event of a termination
upon the death of Employee, the Corporation shall pay
to the Employee, any person designated by the
Employee in writing or if no such person is
designated, to his estate, as the case may be, the
Salary and Plan Bonus, if any, which would otherwise
be payable to the Employee for a period of one (1)
year from the date of such death, using the same
assumptions regarding future Salary and Plan Bonus as
is set forth in the proviso in Section 5.3 hereof. In
the event of a termination upon the death of
Employee, the Corporation shall pay for a period of
six (6) months after
such death, on behalf of the Employee's surviving
dependents, the COBRA insurance premiums of such
dependents.
(5) Termination Upon Disability. In the event of a
termination upon the Disability of Employee, the
Corporation shall pay to the Employee or any person
designated by the Employee, (i) during the first
month immediately after the termination of employment
due to such Disability, the Salary which would
otherwise by payable to the Employee and (ii) during
the second and third months immediately after the
termination of employment due to such Disability, the
difference between the Salary which would otherwise
be payable to the Employee and the disability
insurance payments received by Employee for such
period, using the same assumptions regarding future
Salary and Plan Bonus as is set forth in the proviso
in Section 5.3.
(6) Definition of "For Cause". As used herein, the term
"For Cause" shall mean (i) Employee's indictment,
plea or conviction in a court of law of any crime or
offense involving willful misappropriation of money
or other property or any other crime involving moral
turpitude which constitutes a felony, whether or not
involving the Corporation; (ii) disobedience of a
lawful directive related to his employment
responsibilities hereunder which is not cured within
fifteen (15) days after notice, other than a
directive to relocate to an office of the Corporation
more than twenty five (25) miles from the office
where Executive is employed pursuant to this
Agreement, from the Chief Executive Officer or Board
of Directors of the Corporation consistent with
Employee's duties hereunder or (iii) breach of his
responsibilities under this Agreement.
(7) Definition of "Failure to Perform". As used herein,
the term "Failure to Perform" shall mean that the
Pre-Tax Net Income is less than zero for any two
consecutive calendar quarters during the Employment
Term.
(6) Disability.
(1) Definition. In the event the Employee is mentally or
physically incapable or unable to perform his regular
and customary duties of employment with the
Corporation for a period of seventy-five (75) days in
any one hundred twenty (120) day period during the
term, the Employee shall be deemed to be suffering
from a "Disability".
(2) Payment During Disability. In the event the Employee
is unable to perform his duties hereunder by reason
of a disability, which disability does not constitute
a Disability, the Corporation shall continue to pay
the Employee his Salary, Plan Bonus, if any, and
benefits during the continuance of such disability.
(7) Intentionally Omitted.
(8) Change in Control.
(1) Change in Control Defined. A "Change in Control"
shall be deemed to occur upon the earliest to occur
after the date of this Agreement of any of the
following events; provided, however, that a Change in
Control shall not be deemed to have occurred if the
transaction or event which would otherwise trigger
the Change in Control was approved in advance by the
Board of Directors which Board of Directors was
comprised of a majority of Continuing Directors (as
such term is hereafter defined).
(1) Acquisition of Stock by Third Party. Any
Person (as hereinafter defined) is or
becomes the Beneficial Owner (as hereinafter
defined), directly or indirectly, of
securities of the Corporation representing
thirty-five (35%) percent or more of the
combined voting power of the Corporation's
then outstanding securities and such Person
has initiated in the past or thereafter
initiates actions or demonstrates an intent
to influence or control the business,
affairs or management of the Corporation or
to cause the Corporation to enter into a
transaction or a series of transactions with
such Person or a third party without the
prior consent or request of the Board of
Directors.
(2) Change in Board of Directors. The date when
Continuing Directors cease to be a majority
of the Directors then in office;
(3) Corporate Transactions. The effective date
of a merger or consolidation of the
Corporation with any other entity, other
than a merger or consolidation which would
result in the voting securities of the
Corporation outstanding immediately prior to
such merger or consolidation continuing to
represent (either by remaining outstanding
or by being converted into voting securities
of the surviving entity) more than 51% of
the combined voting power of the voting
securities of the surviving entity
outstanding immediately after such merger or
consolidation and with the power to elect at
least a majority of the board of directors
or other governing body of such surviving
entity;
(4) Liquidation. The approval by the
shareholders of the Corporation of a
complete liquidation of the Corporation or
an agreement for the sale or disposition by
the Corporation of all or substantially all
of the Corporation's assets; and
(5) Other Events. There occurs any other event
of a nature that would be required to be
reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a
response to any similar item on any similar
schedule or form) promulgated under the
Exchange Act, whether or not the Corporation
is then subject to such reporting
requirement.
(2) Termination Following Change in Control.
(1) The Corporation will provide or cause to be
provided to Employee the rights and benefits
described in Section 8.3 if, within
twenty-four months (24) following a Change
in Control, the Corporation terminates the
Employee's employment for reasons other than
as a result of Employee's death.
(2) The Corporation will provide or cause to be
provided to Employee the rights and benefits
described in Section 8.3 if, within
twenty-four months (24) following a Change
in Control, the Employee terminates the
Employee's employment following the
occurrence of any of the following events
without Employee's written consent:
(1) the assignment of Employee to any
duties or responsibilities that are
inconsistent with his position,
duties, responsibilities or status
immediately preceding such Change
in Control, or a change in his
reporting responsibilities or
position at the Corporation;
(2) the failure to continue in effect
the incentive plans, employee
benefits plans and other
compensation policies, practices
and arrangement in which Employee
participated immediately before the
Change in Control, or the failure
to continue Employee's
participation on substantially the
same basis, both in terms of the
amount of benefit provided and the
level of participation relative to
other participants;
(3) the transfer of Employee to a
location more than twenty-five (25)
miles from his location at the time
of the Change in Control, or a
material increase in the amount of
travel normally required by the
Corporation of Employee in
connection with his employment;
(4) the Corporation's failure to pay to
Employee any portion of Employee's
current compensation or to pay to
Employee any portion of an
installment or deferred
compensation under any deferred
compensation program of the
Corporation within seven (7) days
of the date such compensation is
due;
(5) the Corporation's failure to
continue to provide Employee with
benefits substantially similar in
the aggregate to those enjoyed by
Employee under any of the
Corporation's life insurance,
medical, health and accident,
disability, pension, retirement, or
other benefit plans or practices in
which Employee and Employee's
eligible family members were
eligible to participate in
immediately preceding such Change
in Control, the taking of any
action by the Corporation that
would directly or indirectly
materially reduce any of such
benefits, or the failure by the
Corporation to provide Employee
with the number of paid vacation
days to which Employee is entitled
on the basis of years of service
with the Corporation in accordance
with the Corporation's normal
vacation policy in effect
immediately preceding such Change
in Control; or
(6) any material breach by the
Corporation of any provision of
this Agreement.
(3) Payment on Change in Control. In the event of the
termination of Employee's employment under any of the
circumstances set forth in Section 8.2 ("Change in
Control Termination"), the Corporation and/or its
successor shall be obligated to pay to the Employee a
lump sum in an amount equal to his Salary and Plan
Bonus through the end of the stated Term of this
Agreement and all stock options previously granted to
the Employee shall automatically become vested and
immediately exercisable. For purposes of determining
the amount of Employee's Salary in future years, it
shall be assumed that the Pre-Tax Net Income of
$2,000,000 is achieved each year and for purposes of
determining the amount of Employee's Plan Bonus in
future years such Plan Bonus shall be equal to the
Plan Bonus, if any, paid to the Employee for the
calendar year immediately preceding the year in which
the Change in Control Termination occurred. The
payment of the above amount shall be made as soon as
practicable after the Change in Control Termination,
but in no event more than thirty (30) days after such
Change in Control Termination.
(4) Certain Definitions. For purposes of this Section 8,
the following terms shall
have the following meanings:
(1) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(2) "Person" shall have the meaning as set forth
in Section 13(d) and 14(d) of the Exchange
Act; provided, however, that Person shall
exclude (i) the Corporation, (ii) any
trustee or other fiduciary holding
securities under an employee benefit plan of
the Corporation, and (iii) any corporation
owned, directly or indirectly, by the
shareholders of the Corporation in
substantially the same proportions as their
ownership of stock of the Corporation.
(3) "Beneficial Owner" shall have the meaning
given to such term in Rule 13d-3 under the
Exchange Act.
(4) "Continuing Directors" as used in this
Agreement shall mean the persons who
constitute the Board of Directors of the
Corporation on the date hereof together with
their successors whose nominations were
approved by a majority of Continuing
Directors.
(9) Disclosure of Confidential Information.
(1) The Employee hereby acknowledges that the principal
business of the Corporation is the production of
video and audio public relations materials for
distribution to news media and the distribution by
satellite or other means to television and radio
stations and news media services; distribution of
public relations text, audio and video to news media
and the general public via satellite, cassette,
Internet, wire or other means; distribution of press
releases by mail and facsimile; the maintenance of
databases of media contacts for and on behalf of
clients; analysis and written appraisal of public
relations and public affairs campaigns as determined
through press clipping review, either on paper, video
or audio tape or electronic database searches and
such other businesses as the Corporation may conduct
from time to time (the "Business"). Employee
acknowledges that he has knowledge of the Business
and has been and will be acquiring confidential
information concerning the Corporation and the
Business and that, among other things, his knowledge
of the Business will be enhanced through his
employment by the Corporation. Employee acknowledges
that such information is of great value to the
Corporation, is the sole property of the Corporation,
and has been and will be acquired by him in
confidence. In consideration of the obligations
undertaken by the Corporation herein, Employee will
not, at any time, during or after the term of this
Agreement, reveal, divulge or make known to any
person, any information which is treated as
confidential by the Corporation and not otherwise in
the public domain or previously known to him.
Employee agrees that all materials or copies thereof
containing confidential information of the
Corporation in Employee's custody or possession will
not, at any time, be removed from the Corporation's
premises without prior written consent of an
executive officer of the Corporation (except as
reasonably necessary in the discharge of Employee's
duties hereunder) and shall be delivered to the
Corporation upon the earlier of (i) a request by the
Corporation or (ii) the termination of Employee's
employment with the Corporation. After such delivery,
Employee shall
not retain any such materials or copies thereof.
(2) Employee agrees to make full and prompt disclosure to
the Corporation of all inventions, improvements,
discoveries, methods, developments, computer software
(and programs and code) and works of authorship,
whether not patentable or copyrightable, which were
or are created, made, conceived or reduced to
practice by Employee or under Employee's direction or
jointly with others during Employee's employment by
the Corporation or during Employee's provision of
services as an independent contractor to the
Corporation, whether or not during normal working
hours or on the premises of the Corporation (all of
which are collectively referred to in this Agreement
as "Developments").
(3) Employee also agrees to assign and, by executing this
Agreement, Employee does hereby assign, to the
Corporation (or to any person or entity designated by
the Corporation) all of the Employee's rights, titles
and interests, if any, in and to all Developments and
all related patents, patent applications, copyrights
and copyright applications. However, this Section
9(c) shall not apply to Developments which (i) do not
relate to the present or planned business or research
and development of the Corporation and (ii) are made
and conceived by the Employee: (A) at a time other
than during normal working hours, (B) not on the
Corporation's premises and (C) not using the
Corporation's tools, devices, equipment or
proprietary information. Employee understands that to
the extent that the terms of this Agreement shall be
construed in accordance with the laws of any state
which precludes a requirement in an employee's
agreement to assign certain classes of inventions
made by an employee, this Section 9(c) shall be
interpreted not to apply to any invention which a
court rules and/or the Corporation agrees falls
within such class or classes. Employee also agrees to
waive all claims to moral and/or equitable rights in
any Developments.
(4) Employee agrees to cooperate fully with the
Corporation, both during and after Employee's
employment with the Corporation, with respect to the
procurement, maintenance and enforcement of
copyrights, patents and other intellectual property
rights (both in the United States and foreign
countries) relating to Developments. Employee agrees
that he will sign all papers, including, without
limitation, copyright applications, patent
applications, declarations, oaths, formal
assignments, assignments of priority rights, and
powers of attorney, which the Corporation may deem
necessary or desirable in order to protect its rights
and interests in any Development. Employee further
agrees that if the Corporation is unable, after
reasonable effort, to secure Employee's signature on
any such papers, any executive officer of the
Corporation shall be entitled to execute any such
papers as Employee's agent and attorney-in-fact, and
Employee hereby irrevocably designates and appoints
each executive officer of the Corporation as
Employee's agent and attorney-in-fact to execute any
such papers on Employee's behalf, and to take any and
all actions as the Corporation may deem necessary or
desirable, in order to protect its rights and
interests in any Development, under the conditions
described in this sentence.
(5) The provisions of this Section 9 shall survive
Employee's employment
hereunder for a period of five (5) years commencing
on the date this Agreement is terminated.
(10) Covenant Not To Compete.
(1) Terms of Non-Compete.
(1) In consideration of the payments to be made
to Employee hereunder, particularly Section
4.1(a), Employee recognizes that the
services to be performed by him hereunder
are special, unique and extraordinary. The
parties confirm that it is reasonably
necessary for the protection of the
Corporation that Employee agrees, and,
accordingly, Employee does hereby agree,
that he will not, directly or indirectly, in
the Territory, as hereinafter defined, at
any time during the Restricted Period, as
hereinafter defined:
(1) engage in the Business for his
account or render any services
which constitute engaging in the
Business, in any capacity to any
entity; or become interested in any
entity engaged in the Business
either on his own behalf or as an
officer, director, stockholder,
partner, principal, consultant,
associate, employee, owner, agent,
creditor, independent contractor,
or co-venturer of any third party
or in any other relationship or
capacity; or
(2) employ or engage, or cause to
authorize, directly or indirectly,
to be employed or engaged, for or
on behalf of himself or any third
party, any employee, representative
or agent of the Corporation; or
(3) solicit, directly or indirectly, on
behalf of himself or any third
party, any client or vendor of the
Corporation and its affiliates; or
(4) have an interest as an owner,
lender, independent contractor,
co-venturer, partner, participant,
consultant, associate or in any
other capacity, render services to
or participate in the affairs of,
any business which is competitive
with, or substantially similar to,
the Business of the Corporation and
its affiliates as presently
conducted and as may be conducted
by the Corporation during the
Restricted Period.
(2) If any of the restrictions contained in this
Section 10 shall be deemed to be
unenforceable by reason of the extent,
duration or geographical scope thereof, or
otherwise, then after such restrictions have
been reduced so as to be enforceable, in its
reduced form this Section shall then be
enforceable in the manner contemplated
hereby.
(3) This Section 10 shall not be construed to
prevent Employee from owning, directly and
indirectly, in the aggregate, an amount not
exceeding two percent (2%) of the issued and
outstanding voting securities of any class
of any corporation whose voting capital
stock is traded on a national securities
exchange or in the over-the-counter market.
(4) Notwithstanding anything to the contrary set
forth in this Section 10, after termination
of Employment for any reason, (i) the
Employee
may act as a news reporter or manager for an
entity whose primary function is journalism;
(ii) the Employee may act as a member of the
internal public relations staff of any
corporation or entity who performs services
for only that corporation or its affiliates,
including parent corporations, subsidiaries,
and joint ventures; and/or (iii) the
Employee may act as an account executive or
manager at a public relations agency
directly serving that agency's clients.
Notwithstanding the prior sentence, however,
the Employee may not, render services,
directly or indirectly, (i) for any
organization, department, or affiliate of
such news organizations, corporate public
relations departments, or public relations
agencies, whose primary purpose is to
provide the production and distribution of
video or audio news releases, satellite
media tours and related Internet services
that are competitive with, or substantially
similar to, the Business, and (ii) for any
organization, department, or affiliate of
such news organizations, corporate public
relations departments, or public relations
agencies, whose primary purpose is to
provide the research and analysis of public
relations and public affairs campaigns as
determined through press clipping review,
either on paper, video or audio tape or
electronic database searches that are
competitive with or substantially similar to
the Business.
(5) The term "Restricted Period," as used in
this Section 10 shall mean the later of: (i)
the Term of this Agreement plus one (1)
year; and (ii) December 16, 2004; provided,
however, that in the event that the Employee
ceased to be employed by the Corporation
within twenty- four (24) months after a
Change in Control as a result of a Change in
Control Termination, then the Restricted
Period shall terminate upon the date of the
Change in Control Termination. Employee
acknowledges that the Corporation markets
its business worldwide and therefore the
term "Territory" as used herein shall mean
the entire world.
(6) Employee does hereby agree that he will not
make, or cause to be made, any statement,
comment or remark which would reasonably be
construed or intended to disparage,
criticize or denigrate the Corporation or
any of its current or former officers or
directors.
(7) The Corporation does hereby agree that none
of the members of senior management will
make, or cause to made, any statement,
comment or remark which would reasonably be
construed or intended to disparage,
criticize or denigrate the Employee;
provided, however, that members of senior
management, shall be permitted, in the
context of an internal performance review of
the Employee to be critical of such
Employee's performance.
(2) Agreement Not to Compete. As part of the sale of
substantially all of the assets of Corporate TV
Group, Inc. to the Corporation in June 1997, the
Employee entered into a Non-Compete Agreement, dated
as of June 16, 1997 with the Corporation (the "1997
Non-Compete Agreement") and agreed to be bound by the
terms and provisions thereof through December 16,
2004. As an inducement for the Corporation to enter
into this Agreement, the Employee hereby agrees to
extend the Restricted Period, as defined in the 1997
Non-Compete Agreement through the later of: (i) the
Term of this Agreement plus one (1) year; and (ii)
December 16, 2004; provided however, that in the
event that the Employee ceases to be employed by the
Corporation within twenty-four (24) months after a
Change in Control as a result of a Change in Control
Termination, then the Restricted Period shall
terminate upon the date of the Change in Control
Termination. In the event that this provision is held
to be unenforceable by a court of competent
jurisdiction, then the provisions of the 1997
Non-Compete Agreement shall continue to apply as well
as the provisions of Sections 10.1 and 10.3 of this
Agreement. To the extent that there is a conflict
between the terms of this Section 10.2 and the terms
of Section 10.1, the terms of this Section 10.2 shall
control.
(3) Survival. The provisions of this Section 10 shall
survive the termination of Employee's employment
hereunder and until the end of the Restricted Periods
as provided in Sections 10.1 (e) and 10.2 hereof.
(11) Rights and Remedies Upon Breach of Sections 9 or 10.
(1) Return of Benefits. If the Employee breaches, or
threatens to commit a breach of, any of the
provisions of Sections 9 or 10 (the "Restrictive
Covenants"), the Corporation shall have the right and
remedy to require the Employee to account for and pay
over to the Corporation all compensation, profits,
monies, accruals, increments or other benefits
(collectively, "Benefits") derived or received by him
as the result of any transactions constituting a
breach of the Restrictive Covenants, and the Employee
shall account for and pay over such Benefits to the
Corporation and if specifically set forth in a
judgment the right and remedy to require the Employee
to forfeit his right to receive compensation
remaining to be paid to him pursuant to Section 4 of
this Agreement. In addition, if the Employee breaches
or threatens to commit a breach of any of the
Restrictive Covenants, (i) the Employee's unvested
stock options shall immediately lapse and (ii) the
Corporation shall have the right to purchase from the
Employee the Employee's vested stock options for the
book value of the shares of Common Stock underlying
such vested options less the exercise price of such
vested options or if such amount is less than zero,
then $.01 per option share. The Corporation may set
off any amounts due to the Corporation under this
Section 11.1 against any amounts owed to the Employee
by the Corporation.
(2) Injunctive Relief. Employee acknowledges that the
services to be rendered under the provisions of this
Agreement are of a special, unique and extraordinary
character and that it would be difficult or
impossible to replace such services. Accordingly,
Employee agrees that any breach or threatened breach
by him of Sections 9 or 10 of this Agreement shall
entitle the Corporation, in addition to all other
legal remedies available to it, to apply to any court
of competent jurisdiction to enjoin such breach or
threatened breach without posting a bond or showing
special damages. The parties understand and intend
that each restriction agreed to by Employee
hereinabove shall be construed as separable and
divisible from every other restriction, that the
unenforceability of any restriction shall not limit
the enforceability, in whole or in part, of any other
restriction, and that one or more of all of such
restrictions may be enforced in whole or in part as
the circumstances warrant. In the event that any
restriction in this Agreement is more restrictive
than permitted by law in the jurisdiction in which
the Corporation seeks enforcement thereof, such
restriction shall be limited to the extent permitted
by law.
(12) Disclosure of Conflicts of Interest; Abstention from
Speculation in Securities of the Corporation or Clients.
(1) Conflicts of Interest; Speculation in Securities.
In order to avoid actual or apparent
conflicts of interest, the Employee shall take all necessary actions to disclose
to the Corporation any direct or indirect ownership or financial interest in any
company, person or entity which is (i) a service provider to the Corporation,
(ii) an actual or intended client of the Corporation, or (iii) a competitor of
the Corporation.
While the Employee is employed by the
Corporation, the Employee shall abstain from any direct or indirect acquisition
of securities of (i) the Corporation, except as offered by the Corporation to
the Employee as incentives, bonuses or options, or (ii) the Corporation's
clients or customers, except, for purposes of clauses (i) and (ii), as may be
specifically approved in writing by the Corporation upon the Employee's prior
written request; and (iii) from divulging or appropriating to the Employee's own
use or to that of others any secret, confidential or proprietary information or
knowledge regarding the Corporation, its clients or customers for the purpose of
speculation in the securities of any of them.
(2) General Requirements. The Employee shall observe such
lawful policies of the Corporation as may from
time-to-time apply.
(3) Xxxxxxx Xxxxxxx. Considering that the Corporation is
a publicly-traded corporation, the Employee hereby
agrees that the Employee shall comply with any and
all federal and state securities laws, including but
not limited to those that relate to non-disclosure of
information, xxxxxxx xxxxxxx and individual reporting
requirements and shall specifically abstain from
discussing the non-public aspects of the
Corporation's business affairs with any individual or
group of individuals (e.g., Internet chat rooms) who
does not have a business need to know such
information for the benefit of the Corporation.
(4) Limited Lock-Up. Considering that the Corporation's
securities are thinly traded and that a sale of a
large block of stock significantly depresses the
price of the Corporation's securities, the Employee
hereby agrees not to sell shares of the Corporation's
common stock, $.01 par value per share, representing
more than: (i) 25% of the Corporation's average daily
trading volume over the prior 30 trading days in any
week, nor (ii) 100% of the Corporation's average
daily trading volume over the prior 30 trading days
in any 30-day period. Notwithstanding the foregoing,
the Employee shall comply with any and all federal
and state securities laws.
(13) Miscellaneous.
(1) Assignment. The Employee may not assign or delegate
any of his rights or duties under this Agreement.
(2) Life Insurance. The Corporation shall have the right
(but not the obligation) to purchase ordinary or term
life insurance on the life of the Employee; any such
life insurance and any policy evidencing the same
shall be owned by, and shall be for the benefit of,
the Corporation. The Employee shall cooperate in all
respects in the securing of such insurance.
(3) Consulting Services. Notwithstanding anything
contained herein to the contrary, the Employee shall
be permitted during the Employment Term to perform
consulting services provided that such services do
not compete with the then current Business of the
Corporation. The Corporation shall have the right,
not more than once in any ninety (90) day period, and
upon three (3) days advance notice to the Employee
during normal business hours, to review the scope of
work and services that the Employee's consulting
business is, was or will be, performing for its
clients to determine whether such consulting services
compete with the then current Business of the
Corporation.
(4) General Obligations. The Employee hereby agrees to:
(i) promptly report all transactions in the
Corporation's securities to the Chief Financial
Officer of the Corporation, and (ii) file, or cause
to be filed, all reports required by federal and
state securities laws in a timely and accurate
manner.
(5) Earn-Out. This Agreement does not amend, modify or
otherwise affect the provisions of the Asset Purchase
Agreement, dated as of June 16, 1997, by and among
the Corporation, the Employee and Corporate TV Group,
Inc.
(6) Entire Agreement. This Agreement constitutes and
embodies the full and complete understanding and
agreement of the parties with respect to the
Employee's employment by the Corporation, and with
the exception of the Confidentiality Agreement and
the Non-Compete Agreement, supersedes all prior
understandings and agreements, including employment
agreements, if any, whether oral or written, between
the Employee and the Corporation regarding employment
and shall not be amended, modified or changed except
by an instrument in writing executed by the party to
be charged. The invalidity or partial invalidity of
one or more provisions of this Agreement shall not
invalidate any other provision of this Agreement. No
waiver by either party of any provision or condition
to be performed shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or
any prior or subsequent time.
(7) Binding Effect. This Agreement shall inure to the
benefit of, be binding upon and enforceable against,
the parties hereto and their respective successors
and
permitted assigns.
(8) Captions. The captions contained in this Agreement
are for convenience of reference only and shall not
affect in any way the meaning or interpretation of
this Agreement.
(9) Notices. All notices, requests, demands and other
communications required or permitted to be given
hereunder shall be in writing and shall be deemed to
have been duly given when personally delivered or
sent by certified mail, postage prepaid, or overnight
delivery to the party at the address set forth below
or to such other address as either party may
hereafter give notice of in accordance with the
provisions hereof:
If to the Corporation:
Medialink Worldwide Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxxxx
With a copy to:
Tashlik, Kreutzer, Goldwyn & Xxxxxxxx, P.C.
00 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxx Xx. Tashlik, Esq.
If to the Employee:
Xx. Xxxxxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxx Xxxxxxxxxxx Most & Xxxxxxxx, LLP
Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Most, Esq.
(10) Governing Law. This Agreement shall be governed by,
enforced and interpreted under the laws of the State
of New York applicable to contracts made and to be
performed therein without giving effect to the
principles of conflict of laws thereof. Except in
respect of any action commenced by a third party in
another jurisdiction, the parties hereto agree that
any legal suit, action, or proceeding against them
arising out of or relating to this Agreement shall be
brought exclusively in the United States Federal
Courts or New York Supreme Court, as the case may be,
in the State of New York. The parties hereto hereby
accept the jurisdictions of such courts for the
purpose of any such action or proceeding and agree
that venue for any action or proceeding brought in
the State of New York shall lie in the Southern
District of New York or Supreme Court, New York or
Nassau County, as the case may be. Each of the
parties hereto hereby irrevocably consents to the
service of process in any action or proceeding in
such courts by the mailing thereof by United States
registered or certified mail postage prepaid at its
address set forth herein.
(11) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which
together shall constitute one and the same
instrument. All documents and signatures required
hereunder may be delivered or exchanged by telecopy
and telecopied signatures shall be effective as
originals thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
MEDIALINK WORLDWIDE INCORPORATED
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: President
/s/ Xxxxxxx Xxxxxx
-------------------------
XXXXXXX XXXXXX
