AGREEMENT AND GENERAL RELEASE
Exhibit
4.7
AGREEMENT
AND GENERAL RELEASE
This
Agreement and General Release (the “Agreement and General Release”) is made and
entered into as of July __, 2009, by and between Medialink Worldwide
Incorporated (the “Company”) and Iroquois Master Fund, Ltd., Xxxxxxxx Investment
Master Fund Ltd., Portside Growth and Opportunity Fund, and Smithfield Fiduciary
LLC.
WHEREAS, on June 30, 2009 the Company
entered into that certain Payoff, Amendment and Settlement Agreement (the
“Payoff Agreement”) with each of the Releasors (as defined below) pursuant to
which, among other things, the Company paid to the Releasors the aggregate
amount of $1,590,000, which amount the Releasors acknowledge receiving and
pursuant to which the Company’s obligations under its Variable Rate Convertible
Debentures held by the Releasors were extinguished;
WHEREAS, the Releasors have made
certain claims against the Company related to the Payoff Agreement and the
transactions contemplated thereby, which claims have been denied in their
entirety by the Company; and
WHEREAS, the Company desires to
repurchase the Warrants (as defined below) and the Releasors desire to receive
cash for the surrender of the Warrants held by them;
NOW THEREFORE, in settlement of their
differences the parties hereby agree as follows:
1. The
Company has, with its execution of this Agreement and General Release, paid to
The Law Offices of Xxx Xxxxxxx for the benefit of the Releasors: (a) the
aggregate amount of Five Hundred Fifteen Thousand Dollars (USD $515,000) in
settlement of all claims and in consideration for the Releasors granting the
release hereunder; and (b) the aggregate amount of Ten Thousand Dollars
($10,000) (the amounts paid by Medialink referred to together as the “Medialink
Payment”) in consideration for the repurchase by the Company and surrender by
the Releasors of those certain warrants to purchase an aggregate of 536,729
shares of the Company’s Common Stock held by the Releasors as further detailed
on Schedule A attached hereto and made a part hereof (the “Warrants”) and in
further consideration for the Releasors granting the release
hereunder. Each Releasor acknowledges and agrees that the payment by
the Company of Ten Thousand Dollars ($10,000) represents the entire amount due
for all the Warrants under Section 3 of the Warrants or under any other Section
of the Warrants. Immediately upon execution of this Agreement and
General Release, each Releasor shall surrender its Warrant(s) to the Company and
each Releasor acknowledges and agrees that the obligations and rights contained
therein are completely and forever extinguished.
2. TO
ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, each of
IROQUOIS MASTER FUND, LTD., XXXXXXXX INVESTMENT MASTER FUND LTD., PORTSIDE
GROWTH AND OPPORTUNITY FUND, and SMITHFIELD FIDUCIARY LLC, on behalf of itself
and on behalf of each of its respective officers, directors, shareholders,
members, partners, affiliates, assigns, parents, subsidiaries,
successors-in-interest, agents, advisors and employees (collectively,
hereinafter the “Releasors”), severally, in consideration of the Medialink
Payment received by the Releasors from the Company, receipt whereof is hereby
acknowledged, hereby does forever remise, release, acquit, satisfy, and
discharge the Company, The NewsMarket, Inc., TNM Group Incorporated and each of
their respective officers, directors, shareholders, members, partners,
affiliates, assigns, parents, subsidiaries, successors-in-interest, agents,
advisors and employees (collectively, the “Released Parties”), from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
xxxxx, xxxx, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever in law, admiralty or equity, which against the
Released Parties, the Releasors, Releasors' affiliates, heirs, executors,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or things
whatsoever, known or unknown, from the beginning of the world to the time of
execution and delivery of this Agreement and General Release, including without
limitation, any claims related to the Company’s June 30, 2009 purchase of the
debentures held by the Releasors, the Payoff Agreement, the Warrants and the
redemption and cancellation thereof, the entry by the Company into an Agreement
and Plan of Merger with The NewsMarket, Inc. and TNM Group Incorporated and the
consummation of the transactions contemplated thereby and the settlement of the
differences between the Company and the Releasors contemplated
hereby.
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3. Each
Releasor further agrees, severally, not to take any action that could or could
be expected to (i) impede, interfere with or delay the proposed merger between
TNM Group Incorporated and the Company or (ii) otherwise interfere with the
operations of the Company or any of the Released Parties.
4. Each
Releasor represents and warrants that immediately prior to the repurchase by the
Company hereunder, it owns, free and clear of all liens and encumbrances, the
Warrant(s) set forth opposite its name on Schedule A hereto. Each
Releasor represents and warrants that it has made no assignment, and will make
no assignment, of its Warrant(s) or of any claim, right of action or any right
of any kind whatsoever that is released hereunder. Each Releasor
further represents and warrants that no person other than the Releasor has any
interest in any of the claims or rights released by such Releasor hereunder or
in any of the Warrants.
5. Each
Releasor agrees and acknowledges that (i) it is a sophisticated investor and
experienced in matters relating to the valuation, purchase and sale of
securities and the settlement of transactions such as the subject matter hereof;
(ii) it has conducted its own independent review and analysis of its claims and
the business, assets, condition, operations and prospects of the Company; (iii)
it is aware that the Released Parties may have and may later come into
possession of material, nonpublic information related to the Company and its
securities that may not be known to Releasors and that may be material to a
decision to waive any claims against the Released Parties, to grant the release
hereunder or to buy or sell the Company’s securities (the “Excluded
Information”); (iv) it has not requested the Excluded Information, and has
agreed to grant the release hereunder and to surrender the Warrants held by it
without receiving the Excluded Information; and (v) it intends this Agreement
and General Release and the release granted hereunder to be a release of
claims. In executing this Agreement and General Release and in
providing the release granted hereunder, and in surrendering the Warrants held
by it, each Releasor has relied solely upon its own investigation and analysis,
and each Releasor acknowledges that it is not relying on any representation or
warranty, either express or implied, as to the accuracy or completeness of any
of the information provided or made available to the Releasors and their
respective agents or representatives prior to the execution of this Agreement
and General Release.
6. To
the extent any information has been provided by the Company to the Releasors,
the Releasors agree and acknowledge that (i) the Company makes no
representations as to the accuracy of such information; (ii) the information may
contain forward looking statements, which statements may involve known and
unknown risks, uncertainties, and other factors that may cause actual results,
performance, or achievements to be materially different from any future results,
performance, or achievements expressed or implied by such statements and the
Company’s actual results could differ materially from those set forth in such
statements; and (iii) the Releasors are not relying on such information in
agreeing to the provisions of this Agreement and General Release.
7. The
Company, on behalf of itself and on behalf of each of the Released Parties, in
consideration of the Releasors’ grant of the release herein and the surrender of
the Warrants, receipt whereof is hereby acknowledged, hereby does forever
remise, release, acquit, satisfy, and discharge the Releasors and each of their
respective officers, directors, shareholders, members, partners, affiliates,
assigns, parents, subsidiaries, successors-in-interest, agents, advisors and
employees, from all actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, xxxxx, xxxx, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever in law, admiralty or equity,
which against the Releasors and their above listed related persons and entities,
the Company and the Released Parties, and their affiliates, heirs, executors,
administrators, successors and assigns ever had, now have or hereafter can,
shall or may have related to, or by reason of any matter, cause or things
whatsoever, known or unknown, from the beginning of the world to the time of
execution and delivery of this Agreement and General Release; provided, however,
that this release shall not cover any claims arising against a Releasor
hereafter by virtue of a breach by such specific Releasor of this Agreement and
General Release.
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8. This
Agreement and General Release represents a compromise of disputed and contested
claims and is entered into solely for the purpose of settling such claims and
for redemption of the Warrants and may not be cited as, and does not constitute,
an admission by any of the parties of wrongdoing or of any violation or breach
of any federal, state or local law, regulation, or local requirement, or of any
duty whatsoever, whether based in contract, statute, regulation, common law, or
otherwise.
9. This
Agreement and General Release may not be changed orally. There are no
representations or understandings made by the Releasors or the Released Parties
that are not set forth herein.
10. The
laws of the State of New York, without giving effect to its choice of law
principles, govern all matters arising under or relating to this Agreement and
General Release. The parties hereto agree that any legal suit, action
or proceeding against them arising out of or relating to this Agreement and
General Release or the relationship between the parties shall be brought
exclusively in the United States Federal Court or New York County Supreme Court,
in the State of New York. The parties hereto accept the jurisdiction of such
courts for the purpose of any such action or proceeding, and agree the venue for
any action or proceeding brought in the State of New York shall lie in the
United States District Court for the Southern District of New York or Supreme
Court of the State of New York, County of New York.
11. Each
of the parties hereby acknowledges that damages would be an inadequate remedy
for any breach of the provisions of this Agreement and General Release and
agrees that the obligations of the parties shall be specifically
enforceable. Each of the parties further agrees that any breach or
threatened breach of this Agreement and General Release by it shall be deemed to
cause irreparable harm to the Releasors, on one hand, the Company and the
Released Parties, on the other hand, and shall entitle the Releasors or the
Company and any Released Party, as the case may be, in addition to any other
legal remedies available to it, to apply to any court of competent jurisdiction
in New York County to enjoin any such breach or threatened breach of this
Agreement and General Release without the posting of a bond or a showing of
special damages. This provision is without prejudice to any other
rights that the Releasors, on one hand, and the Company and the Released
Parties, on the other hand may have against the other for any breach of
obligations under this Agreement and General Release.
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IN WITNESS WHEREOF, the parties have
caused this instrument to be executed by their respective duly authorized agents
as of the respective date(s) indicated below.
| IROQUOIS MASTER FUND, LTD. | |||
|
By
Iroquois Capital Partners, LLC,
its
General Partner
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By:
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| Name: | Xxxx Xxxxxxxxx | ||
| Title: | Managing Member | ||
| Date: | July __, 2009 | ||
|
STATE
OF
|
) |
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||
| SS: | ||||
|
COUNTY
OF
|
) |
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||
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|||
On this _______ day of July, 2009,
before me, the undersigned, personally appeared _____________________ personally
known to me or proved to me on the basis of satisfactory evidence to be the same
person whose name is subscribed to the within instrument and acknowledged the
execution thereof for the uses and purposes therein set forth.
IN WITNESS WHEREOF I have hereunto set
my hand and official seal.
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|
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||
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(Notarial
Seal)
|
Notary
Public
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||
[remainder
of page intentionally left blank]
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| XXXXXXXX INVESTMENT MASTER FUND LTD. | |||
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By:
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| Name: | Xxxxxxx Xxxxxxxx | ||
| Title: | Managing Director | ||
| Date: | July __, 2009 | ||
|
STATE
OF
|
) |
|
||
| SS: | ||||
|
COUNTY
OF
|
) |
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||
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|||
On this _______ day of July, 2009,
before me, the undersigned, personally appeared _____________________ personally
known to me or proved to me on the basis of satisfactory evidence to be the same
person whose name is subscribed to the within instrument and acknowledged the
execution thereof for the uses and purposes therein set forth.
IN WITNESS WHEREOF I have hereunto set
my hand and official seal.
|
|
|
||
| (Notarial Seal) |
Notary
Public
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||
[remainder
of page intentionally left blank]
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| PORTSIDE GROWTH AND OPPORTUNITY FUND | |||
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|
By:
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| Name: | Xxxx Xxxxx | ||
| Title: | Authorized Signatory | ||
| Date: | July __, 2009 | ||
|
STATE
OF
|
) |
|
||
| SS: | ||||
|
COUNTY
OF
|
) |
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||
|
|
|
|||
On this _______ day of July, 2009,
before me, the undersigned, personally appeared _____________________ personally
known to me or proved to me on the basis of satisfactory evidence to be the same
person whose name is subscribed to the within instrument and acknowledged the
execution thereof for the uses and purposes therein set forth.
IN WITNESS WHEREOF I have hereunto set
my hand and official seal.
|
|
|
||
| (Notarial Seal) |
Notary
Public
|
||
[remainder
of page intentionally left blank]
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| SMITHFIELD FIDUCIARY LLC | |||
|
By
Highbridge Capital Management, LLC,
its
Trading Manager
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|||
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|
By:
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| Name: | Xxxx Xxxxxxxx | ||
| le: | Managing Director | ||
| Date: | July __, 2009 | ||
|
STATE
OF
|
) |
|
||
| SS: | ||||
|
COUNTY
OF
|
) |
|
||
|
|
|
|||
On this _______ day of July, 2009,
before me, the undersigned, personally appeared _____________________ personally
known to me or proved to me on the basis of satisfactory evidence to be the same
person whose name is subscribed to the within instrument and acknowledged the
execution thereof for the uses and purposes therein set forth.
IN WITNESS WHEREOF I have hereunto set
my hand and official seal.
|
|
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||
| (Notarial Seal) |
Notary
Public
|
||
[remainder
of page intentionally left blank]
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| MEDIALINK WORLDWIDE INCORPORATED | |||
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|
By:
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||
| Name: | |||
| Title: | |||
| Date: | July __, 2009 | ||
|
STATE
OF
|
) |
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||
| SS: | ||||
|
COUNTY
OF
|
) |
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||
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On this _______ day of July, 2009,
before me, the undersigned, personally appeared _____________________ personally
known to me or proved to me on the basis of satisfactory evidence to be the
(insert title) ___________________________ of the above named corporation and
acknowledged that he, as an officer being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself as an officer.
IN WITNESS WHEREOF I have hereunto set
my hand and official seal.
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| (Notarial Seal) |
Notary
Public
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8
Schedule
A
|
Holder
|
Warrants (#)
|
Exercise Price ($)
|
||||||
|
Iroquois
Master Fund, Ltd.
|
174,879 | $ | 0.50 | |||||
|
Iroquois
Master Fund, Ltd.
|
12,092 | $ | 3.99 | |||||
|
Smithfield
Fiduciary LLC
|
174,879 | $ | 0.50 | |||||
|
Xxxxxxxx
Investment Master Fund Ltd.
|
55,396 | $ | 0.50 | |||||
|
Portside
Growth and Opportunity Fund
|
119,483 | $ | 0.50 | |||||
9
