▇▇▇▇▇ Partnership
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
March 1, 1994
Video Broadcasting Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
This letter shall serve to confirm the terms and
conditions of our agreement regarding consulting services to be
performed by the ▇▇▇▇▇ Partnership (the "Partnership") for Video
Broadcasting Corporation (the "Company").
Reference is made to that certain consulting agreement, dated
as of September 14, 1992, between the Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇").
The Partnership, ▇▇▇▇▇ and the Company hereby agree
that such consultancy agreement is hereby terminated and further agree
that ▇▇▇▇▇ will perform all of the consulting services on behalf of
the Partnership as contemplated by this Agreement.
▇▇▇▇▇, on behalf of the Partnership, shall provide
services relating to the Company's London operation, including
planning, marketing, staffing and operation, and development of
strategic partnerships in the United Kingdom, Europe, and elsewhere,
the establishment of affiliates worldwide, preparing for and attending
sales meetings, presentations to existing and potential clients,
undertaking speaking engagements within Europe and elsewhere, and
undertake such other duties as may be assigned to it from time to time
by the Board of Directors of the Company. ▇▇▇▇▇ shall serve as a
member of the Board of Directors of the Company during the Term of
this Agreement as the nominee of and at the pleasure of the President
of the Company and shall have the honorary title of Vice Chairman,
MediaLink-Europe without additional compensation. ▇▇▇▇▇ shall
personally attend two (2) official board meetings at the Company's
expense and shall attend all other meetings of the Board
March 1, 1994
Page 2
of Directors via telephone. ▇▇▇▇▇ shall attend at least one (1)
official management meeting in London, England and periodic meetings
with the Company's London staff. ▇▇▇▇▇ shall devote such time and
effort to the performance of his duties hereunder on a basis of four
(4) days per week or as otherwise mutually agreed upon by the
Partnership and the Company.
The term of this Consulting Agreement shall commence
as of the date hereof and shall continue until December 31, 1995 or
until terminated pursuant to the terms and conditions hereof (the
"Initial Term"). On January 1, 1996 and on each anniversary thereof,
the term of this Agreement shall be automatically renewed for an
additional twelve (12) month period (each, a "Renewal Term") unless
either party shall have given ninety (90) days prior written notice of
its intent not to renew. The term "Term" as used herein shall mean the
Initial Term and any Renewal Terms hereunder.
The Company shall pay to the Partnership hereunder
a base annual consulting fee ("Base Consulting Fee") equal to
Fifty-four Thousand (54,000 Pounds) Pounds Sterling per annum. The Base
Consulting Fee shall be payable monthly. The Company shall not make,
and shall not be responsible for, any withholding deductions.
In addition to its annual Base Consulting Fee, the
Partnership shall be entitled to receive a bonus (the "Bonus") in
accordance with the provisions of this paragraph. As soon as
practicable after the execution of this document and at the beginning
of the 1995 calendar year, the Partnership and the company shall
mutually agree as to the goals and objectives for the 1994 or 1995
calendar year, as the case may be, based on turnover and income/loss
of the Company's European operation. The amount of the bonus shall be
equal to the sum of (i) five (5%) percent of the excess over the
agreed revenue target and (ii) five (5%) percent of the improvement of
the agreed net Income/loss target; provided, however, once the
Company's European operation has achieved profitability, the total
Bonus for each year shall not exceed five (5%) percent of the Pre-Tax
Net Profits, as defined herein.
Subject to the provisions of the following
paragraph, the Bonus shall be paid (i) fifty (50%) percent in cash
("Cash Portion") upon completion of the Company's independent audit by
the Company's regularly employed independent certified public
accountants ("Accountants") for such calendar year; and (ii) fifty
(50%) percent in Common Stock, $.01 par value, of the Company (the
"Stock Portion") valued at a multiple of one and one-half (1.5) times
revenue of the Company, the Stock Portion to be payable in three (3)
equal annual installments, with the first installment payable on the
date of the payment of the Cash Portion.
March 1, 1994
Page 3
Notwithstanding the provisions of the preceding two
paragraphs the Partnership shall not be entitled to receive the Cash
Portion or any installment of the Stock Portion which has not been
paid or delivered in the event either (i) of the termination this
agreement For Cause (as hereinafter defined), or (ii) the Partnership
wrongfully fails to provide the services contemplated hereby, in
either case at any time prior to the payment of the Cash Portion or
the delivery of the Stock Portion, as the case may be. Notwithstanding
the provisions of the preceding two paragraphs, the Partnership shall
not be entitled to receive any installment of the Stock Portion which
has not been delivered in the event that either (i) this agreement
expires without an automatic renewal of the term, or (ii) the
Partnership elects to terminate this Agreement on ninety (90) days
prior written notice as set forth herein, in either case at any time
prior to the delivery of any installment of the Stock Portion. The
Partnership shall be entitled to receive the Cash Portion and the
Stock Portion in accordance with the terms and provisions of this
Agreement in the event of either (i) the death or Disability (as
hereinafter defined) of ▇▇▇▇▇, or (ii) the Company's termination of
the this Agreement which is not a termination For Cause.
The term "Pre-Tax Net Profits" as used in this
Agreement shall mean the net profits of the Company relating only to
its European operation for a fiscal year prior to (i) the payment or
provision for any Federal, state or local income or other taxes; and
(ii) the amount of the Bonus of the Partnership for such fiscal year,
as computed by the Company's Accountants.
The Company shall pay or reimburse the Partnership
or ▇▇▇▇▇, as the case may be, for all reasonable and necessary
business, travel or other expenses, upon proper documentation thereof,
which may be incurred by them in connection with the rendition of the
services contemplated hereunder.
The Partnership shall not be entitled to participate
in any profit sharing, group insurance, option plans, hospitalization,
and group health benefit plans or other benefits and plans of the
Company.
The Partnership and ▇▇▇▇▇ shall have no authority to
bind or commit the Company to agreements of any kind (except as
expressly agreed in writing), nor shall the Partnership or ▇▇▇▇▇ have
any authority or power to incur any debt, obligation or liability or
to enter into any contract or commitment on the Company's behalf. The
Partnership and ▇▇▇▇▇ shall be considered an independent contractor
and not a servant, employee or agent of the Company.
It is expressly understood that any person or entity
engaged by the Partnership or ▇▇▇▇▇ to assist them in providing
services hereunder is at their own
March 1, 1994
Page 4
risk, expense and supervision and has no claim against the Company for
salaries, commissions or other items of cost, and the Partnership and
▇▇▇▇▇ warrant that any such person or entity shall be subordinate to
them and by and under them.
This Agreement may be terminated by either party at
any time upon 90 days prior written notice. This Agreement shall
terminate upon the death or Disability, as hereinafter defined, of
▇▇▇▇▇, or upon the termination For Cause, as hereinafter defined, or
because the Partnership wrongfully fails to provide the services
contemplated hereby. The Company shall pay to the Partnership or any
person designated by the Partnership in writing, the aggregate amount
of the accrued Consulting Fee as of such termination but not yet paid.
As used herein, "Disability" shall mean that ▇▇▇▇▇
is mentally or physically incapable or unable to perform his regular
and customary consulting duties for a period of ninety (90)
consecutive days or for period of ninety (90) days in any three
hundred and sixty (360) day period.
As used herein, the term "For Cause" shall mean (i)
▇▇▇▇▇' conviction in a court of law of any crime or offense, or (ii)
willful misconduct, or (iii) the material breach by the Partnership of
any provision of this Agreement, or (iv) reckless disregard of its
responsibilities under this Agreement.
The Partnership and ▇▇▇▇▇ recognize that they will
have access to secret and confidential information regarding the
Company and its products, know-how, customers and plans. The
Partnership and ▇▇▇▇▇ acknowledge that such information is of great
value to the Company, is the sole property of the Company, and has
been and will be acquired by them in confidence. In consideration of
the obligations undertaken by the Company, the Partnership and ▇▇▇▇▇
will not, at any time, during or after the terms hereof, reveal,
divulge or make known to any person, any information acquired by them
during the term, which is treated as confidential by the Company and
not otherwise in the public domain. The provisions of this paragraph
shall survive this Agreement.
The Partnership and ▇▇▇▇▇ recognize that the
services to be performed by them hereunder are special, unique and
extraordinary. The parties confirm that it is reasonably necessary for
the protection of the Company that the Partnership and ▇▇▇▇▇ agree,
and, accordingly, the Partnership and ▇▇▇▇▇ do hereby agree, that they
will not, directly or indirectly, in the Territory (as hereinafter
defined) at any time during the Restricted Period (as hereinafter
defined):
March 1, 1994
Page 5
(a) except as provided herein, engage in any
business competitive with the business conducted by the Company either
on their own behalf or as an officer, director, stockholder, partner,
consultant, associate, employee, owner, agent, creditor, independent
contractor, or co-venturer of any third party; or
(b) employ or engage, or cause or authorize,
directly or indirectly, to be employed or engaged, for or on behalf of
themselves or any third party, any employee or agent of the Company.
If any of the restrictions contained in the
preceding paragraphs shall be deemed to be unenforceable by reason of
the extent, duration, geographical scope thereof, or otherwise, then
the court making such determination shall have the right to reduce
such extent, duration, geographical scope, or other provisions hereof,
and in its reduced form this Agreement shall then be enforceable in
the manner contemplated hereby.
The non-compete covenants set forth herein shall not
be construed to prevent the Partnership or ▇▇▇▇▇ from owning, directly
or indirectly, in the aggregate, an amount not exceeding five (5%)
percent 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.
The term "Restricted Period" as used herein shall
mean the term of this Agreement plus two (2) years after the date the
Partnership no longer renders consulting services for the Company. The
term "Territory" as used herein shall mean the United Kingdom and
Europe. The provisions of the non-compete shall survive the
termination of this Agreement and until the end of the Restricted
Period.
The Partnership and ▇▇▇▇▇ acknowledge 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, they
agree that any breach or threatened breach by them of the
confidentiality and non-compete provisions of this Agreement shall
entitle the Company, 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. The parties understand and intend that
each restriction agreed to by the Partnership and ▇▇▇▇▇ 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 or 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
March 1, 1994
Page 6
in which the Company seeks enforcement thereof, such restriction shall
be limited to the extent permitted by law.
The Partnership may not assign or delegate any of
its rights or duties under this Agreement.
This Agreement constitutes and embodies the full and
complete understanding and agreement of the parties with respect to
the Partnership's consulting agreement with the Company, supersedes
all prior understandings and agreements, if any, whether oral or
written, between the Partnership and the Company and shall not be
amended, modified or changed except by an instrument in writing. The
invalidity or partial invalidity of one or more of the 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.
This Agreement shall inure to the benefit of, be
binding upon and enforceable against, the Parties hereto and their
respective successors and permitted assigns.
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, registered or express mail, postage
prepaid, or overnight delivery to the party set forth above or to such
other address as either party may hereafter give notice of in
accordance with the provisions hereof.
This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State. This
Agreement shall be construed according to and governed by the laws of
the State of New York without giving effect to the principles of
conflict of laws thereof. The parties hereto agree to accept the
jurisdiction of the U.S. Federal Court or New York County Supreme
Court, in the State of New York, for the purpose of any action or
proceeding against them arising out of or relating to this Agreement,
and agree that venue for any judicial action or proceeding brought in
such State shall be in the Southern District of New York or Supreme
Court of New York County, as the case may be. Each of the parties
hereto irrevocably consents to the services of process in any action
or proceeding in such courts by the mailing thereof by United States
registered or certified mail postage paid at its address set forth
herein.
March 1, 1994
Page 7
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.
If the foregoing accurately reflects the agreement
of our agreement, please so indicate by signing where set forth below.
Very truly yours,
▇▇▇▇▇ PARTNERSHIP
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, Partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, individually
Accepted and Agreed to this
1st day of March 1994
VIDEO BROADCASTING CORPORATION
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Executive
Vice President
