EXHIBIT 28.2
NON-COMPETE AGREEMENT
NON-COMPETE AGREEMENT, dated as of June 16, 1997, by and
between MEDIALINK WORLDWIDE INCORPORATED, a Delaware corporation with offices
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Medialink"), CORPORATE TV
GROUP, INC., a New York corporation with offices at 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Corporate TV") and XXXXXXX XXXXXX, an
individual having an address c/o Corporate TV at 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Xxxxxx"). All capitalized terms not defined herein
shall have the meaning ascribed to them in the Asset Purchase Agreement, as
hereinafter defined.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Purchase Agreement
(the "Asset Purchase Agreement"), dated as of the date hereof, by and among
Medialink, Corporate TV Group, Inc. ("Corporate TV") and Xxxxxx, Medialink has
acquired substantially all of the assets of Corporate TV; and
WHEREAS, Xxxxxx was the President of Corporate TV and the
sole shareholder of Corporate TV, a corporation engaged in the business of
providing value added services constituting strategic promotional services,
including the production and distribution of video and audio news releases,
press conferences and satellite media tours; and
WHEREAS, as an additional inducement to Medialink to
consummate the transactions contemplated by the Asset Purchase Agreement,
Corporate TV and Xxxxxx have agreed to enter into this Non-Compete Agreement,
on the terms and subject to the conditions herein contained.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Covenant Not To Compete and Confidentiality
Covenant.
1.1. Non-Compete. Xxxxxx hereby acknowledges that he
was a director, officer, employee and the sole shareholder of Corporate TV.
Xxxxxx and
Corporate TV acknowledge that (i) the principal business of Medialink is
providing video and audio production and distribution services for businesses
and other organizations seeking to communicate their news through television,
radio and other media (the "Medialink Business"), and such other businesses as
Medialink may conduct from time to time during the Restricted Period, as
defined herein; (ii) the principal business of Corporate TV is providing value
added services constituting strategic promotional services, including the
production and distribution of video and audio news releases, press conferences
and satellite media tours (such business as shall be conducted by Medialink
shall be referred to herein as the "MCT Division" and, together with the
Medialink Business, collectively, the "Business"); (iii) Frisch's work for and
position with the MCT Division and his position with Medialink has given him
and will give him access to the confidential affairs and proprietary
information of Medialink and MCT Division and their affiliates not readily
available to the public; and (iv) the agreements and covenants of Xxxxxx and
Corporate TV contained in this Section 1 are essential to the business and
goodwill of Medialink and the MCT Division and Medialink would not consummate
the Asset Purchase Agreement without the non-compete covenants contained
herein. Accordingly, each of Xxxxxx and Corporate TV does hereby agree, that,
each of them will not, nor will their respective affiliates, directly or
indirectly, as a shareholder, director, officer, partner, joint venturer,
employee, consultant or agent, in the Territory, as hereinafter defined, at any
time during the Restricted Period, as hereinafter defined:
(a) engage in the Business for his or its
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 or its own behalf or as an officer, director,
stockholder, partner, principal, consultant, associate, employee, agent,
creditor, independent contractor, or co-venturer of any third party or in any
other relationship or capacity;
(b) employ or engage, or cause or
authorize, directly or indirectly, to be employed, or engaged, for or on behalf
of himself, itself or any third party, any employee, representative or agent of
Medialink;
(c) solicit, directly or indirectly, on
behalf of himself, itself or any third party, any client or vendor of Medialink
and its affiliates; or
(d) have an interest as an owner, lender,
independent contractor, co-venturer, partner, participant, 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
and its affiliates as presently conducted and as may be conducted by Medialink
during the Restricted Period.
This Section 1.1 shall not be construed to prevent Xxxxxx
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
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voting capital stock is traded on a national securities exchange or in the
over-the-counter market.
Notwithstanding anything to the contrary set forth in this
Section 1.1, Xxxxxx and Corporate TV (i) shall not be prohibited from rendering
services for news organizations, or public relations departments or public
relations agencies; (ii) may act as a news reporter or manager for an entity
whose primary function is journalism; (iii) 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 (iv) may act as an account executive
or manager at a public relations agency directly serving that agency's clients.
Notwithstanding the prior sentence, however, Xxxxxx and Corporate TV 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.
1.2. Unenforceability. If any of the restrictions
contained in this Section 1 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.
1.3. Restricted Period. The term "Restricted Period"
as used in this Section 1, shall mean the seven and one-half (7 1/2) year
period commencing on the date hereof and ending on December 16, 2004.
1.4. Territory Defined. The term "Territory" as used
herein shall mean the entire world.
1.5. Confidentiality. Each of Xxxxxx and Corporate
TV does hereby agree that each of them will not, nor will their respective
affiliates, directly or indirectly, at any time during or after the Restricted
Period, except for the benefit of Medialink, reveal, divulge or make known to
any person, firm or corporation, or in any way use for their own benefit or for
the benefit of any affiliate, any trade secrets or confidential information,
obtained from Medialink, the MCT Division or their affiliates at any time.
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Section 2. Injunctive Relief. Xxxxxx and Corporate TV
acknowledge that any breach or threatened breach by him or it of Section 1 of
this Agreement shall entitle Medialink and their affiliates, in addition to any
other legal remedies available to them, (i) to apply to any court of competent
jurisdiction to enjoin such breach or threatened breach without the requirement
of posting a bond or a showing of special damages and (ii) the right and remedy
to require Xxxxxx, Corporate TV and their respective affiliates to account for
and pay over to Medialink, in their sole discretion, all compensation, profits,
monies, accruals, increments or other benefits (collectively, "Benefits")
derived or received by them as the result of any transactions constituting a
breach of the restrictive covenants of Section 1 hereof, and Xxxxxx, Corporate
TV and their respective affiliates shall account for and pay over such Benefits
to Medialink and if specifically set forth in a judgment the right and remedy
to require Xxxxxx to forfeit his right to receive compensation remaining to be
paid to him pursuant to Section 4 of the employment agreement with Medialink.
In addition, if Xxxxxx or Corporate TV breaches or threatens to commit a breach
of Section 1 of this Agreement, (i) Frisch's unvested stock options shall
immediately lapse and (ii) Medialink shall have the right to purchase from
Xxxxxx, Frisch'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. Medialink may set off any amounts due to Medialink under this
Non- Compete Agreement against any amounts owed to the Employee by Medialink.
Xxxxxx acknowledges and agrees (i) he has had an opportunity to seek advice of
counsel in connection with this Agreement and (ii) the non-compete covenants
are reasonable by reason of the extent, duration and geographical scope and in
all other respects. In the event of a breach or threatened breach of this
Agreement, Medialink shall give prior written notice to Xxxxxx or Corporate TV
setting forth the specific reasons for alleging such breach or threatened
breach, signed by an officer of Medialink (the "Notice"). To the extent that
the threatened breach can be cured by Xxxxxx or Corporate TV within thirty (30)
days after receipt by either of them of the Notice, time of the essence, such
threatened breach shall not be deemed a breach hereunder if so cured. The
parties understand and intend that each restriction agreed to by Xxxxxx or
Corporate TV hereinabove shall be construed as separable and divisible from
every other restriction, that the unenforceability of any one 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 the laws of the jurisdiction in
which Medialink or its affiliates seek enforcement thereof, such restriction
shall be limited to the extent permitted by law.
Section 3. No Employment or Equity Rights. This Agreement
shall not be deemed to confer any rights on Xxxxxx to employment with
Medialink.
Section 4. Non-Compete Fee. As an additional inducement to
Xxxxxx and Corporate TV to enter into the transactions contemplated by the
Asset Purchase Agreement, Xxxxxx and Corporate TV have agreed to enter into
this Non-Compete Agreement, on the terms and subject to the conditions herein
contained. In
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consideration of the covenants contained herein Medialink shall pay to Xxxxxx
and Corporate TV the sum of Three Hundred Thousand ($300,000) Dollars, payable
on the execution of this Agreement.
Section 5. Miscellaneous.
5.1. Entire Agreement. This Agreement constitutes
and embodies the full and complete understanding and agreement of the parties
with respect to the matters covered hereby, supersedes all prior understandings
and agreements, if any, whether oral or written, between Medialink, Corporate
TV and Xxxxxx 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.
5.2. Binding Effect. This Agreement shall inure to
the benefit of, be binding upon and enforceable against, the parties hereto and
their respective successors. No assignment of any party's rights or obligations
shall be effective without the prior written consent of the other party hereto.
5.3. 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.
5.4. 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 special overnight delivery, to
the party at the address set forth above or to such other address as either
party may thereafter give notice of in accordance with the provisions hereof.
5.5. 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.
5.6. Governing Law. This Agreement shall be governed
by and interpreted and enforceable 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
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the United States Federal Courts or New York State Supreme Court, 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 New York Supreme Court, Nassau County or New York
County, as the case many 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
MEDIALINK WORLDWIDE INCORPORATED
By: /s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx, President
CORPORATE TV GROUP, INC.
By: /s/ Xxxxxxx Xxxxxx
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/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, individually
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