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EXHIBIT 10.17
DATED 25 FEBRUARY 2000
(1) CNBC SPORTS INTERNATIONAL LIMITED
(2) FOCUSED MEDIA LIMITED
(3) GLOBAL GOLF LIMITED
(4) XXXXXXX HILLS, LTD.
(5) CYCAD FINANCIAL HOLDINGS LIMITED
(6) XXXX TRADING LIMITED
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SETTLEMENT AGREEMENT
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Xxxxxx Xxxxx Sapte
Five Xxxxxxxx Xxxx
Xxxxxxxx'x Xxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
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THIS AGREEMENT is made the 25th day of February, 2000
BY, BETWEEN AND AMONG:
(1) CNBC SPORTS INTERNATIONAL LIMITED, a private limited company organised and
existing under the laws of the United Kingdom, having offices at 00
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxx XX0 0XX ("CNBC SPORTS");
(2) FOCUSED MEDIA LIMITED, a private limited company organised and existing
under the laws of the Republic of Ireland, having its head office at Xxxx
00, Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx Xxxxxxx
BT480LD ("FOCUSED MEDIA");
(3) GLOBAL GOLF LIMITED, a private limited company organised and existing
under the laws of Northern Ireland, having its offices at Xxxx 00,
Xxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx Xxxxxxx BT480LD
("GLOBAL GOLF");
(4) XXXXXXX HILLS, LTD., a Utah corporation having its offices at 00 X. Xxxx
Xxxxxxxx Xxx., Xxxxxxxxxx, Xxxxxxx 00000 XXX ("BHL");
(5) CYCAD FINANCIAL HOLDINGS LIMITED, a public company organised and existing
under the laws of the Republic of South Africa, having an office at 00
Xxxxx Xxxx, Xxxxxxxx 0000, XX Xxx 00000, Xxxxxxxx 0000, Xxxxxxxx xx Xxxxx
Xxxxxx ("CYCAD"); and
(6) XXXX TRADING LIMITED, a private limited company registered in Jersey,
Channel Islands, whose address is Lord Coutanche House, 66-68 Esplanade,
St Helier, Jersey, Channel Islands ("XXXX").
WHEREAS:
I. The parties have heretofore entered into various agreements and
understandings relating to the ownership of the share capital of Focused
Media and their joint development and promotion of an Internet-based
business under the name "Global Golf", including in particular but not
necessarily limited to:
(A) An agreement dated 6 May 1999 among CNBC Sports, Focused Media and BHL
for inter alia the purchase of airtime on certain television channels, as
amended by a letter agreement dated 31 August 1999 (collectively "THE
AIRTIME AGREEMENT");
(B) A Subscription and Shareholders' Agreement dated 6 May 1999 among CNBC
Sports, BHL and Focused Media under which inter alia Focused Media was
to issue to CNBC Sports shares representing twenty (20) per cent of the
issued share capital of Focused Media ("THE CNBC SUBSCRIPTION
AGREEMENT");
(C) An option agreement dated 12 July 1999 between Xxxx and BHL under which
inter xxxx Xxxx was granted an option to acquire thirty (30) per cent of
the issued share capital of Focused Media from BHL ("THE XXXX OPTION
AGREEMENT"); and
(D) A Subscription and Shareholders' Agreement dated 30 September 1999 among
CNBC Sports, Focused Media, BHL, Cycad and Xxxx, pursuant to which
Cycad was to be issued with ten (10) per cent of the issued share capital
of Focused Media upon and subject to the terms and conditions contained
therein, as amended by a "Side Letter" agreement among the same parties
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dated 1 October 1999 and a Modification Agreement among the same parties
dated 26 October 1999 (collectively, "THE CYCAD SUBSCRIPTION AGREEMENT").
and
II. Certain unfortunate disagreements have arisen as the result of which the
parties mutually desire to terminate the aforesaid agreements, upon all of
the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of premises, the mutual agreements contained
herein and other good and valuable consideration the receipt and legal
sufficiency of which is hereby acknowledged by each of the parties, THE PARTIES
HEREBY AGREE as follows:
1. DEFINITIONS
Unless expressly stated otherwise herein, the following expressions shall
have the following meanings in this Agreement:
"AFFILIATE": means any person controlling, controlled by or under common
control with a specified person. For the purposes of this definition,
"control" means the power of a person to direct or cause the direction of
the management or policies of any other person, or the ownership directly
or indirectly of more than fifty (50) per cent of the equity or capital of
or the voting power in any other person but, for the avoidance of any
doubt, National Broadcasting Company, Inc. and General Electric Company
are not and shall not be treated as Affiliates of CNBC Sports;
"AGREED FORM": means the following wording in its entirety without any
amendment or deletion:
"CNBC Sports is currently assisting with the marketing of the
xxxxxxxxxx.xxx web site";
"ASSOCIATED INDIVIDUAL" means, with respect to any party to this
Agreement, any natural person who is, or who was at any time pertinent to
any of the Relevant Agreements (as that term is defined below), associated
with that party as a shareholder, officer, director, employee, agent or
attorney.
"BHL PARTIES": shall mean BHL, Focused Media, Global Golf and each and
every Affiliate of BHL, Focused Media or Global Golf;
"CNBC ACCOUNT": shall mean the following bank account of CNBC Sports:
Account No: 01/00000000
Sort Code: 60-30-03
Address: National Westminster Bank plc, Xxxx Street Branch,
00 Xxxx Xxxxxx, Xxxxxx X0X 0XX.
"CNBC PARTIES": shall mean CNBC Sports, Cycad, Xxxx and each and every
Affiliate of Cycad, Xxxx or CNBC Sports;
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3. RELEASES; DISMISSAL OF LAWSUIT
3.1 Except for any obligations expressly preserved in or created by this
Agreement, each of the BHL Parties hereby irrevocably waives,
unconditionally releases and forever discharges each of the CNBC Parties,
each of their Affiliates, and all of their respective Associated
Individuals (herein, collectively, "Releasees") of and from any and all
manner of suits, debts, demands, claims, causes of action, liabilities or
obligations, of whatsoever kind or nature, whether in law or equity, which
any of the BHL Parties may now have, may heretofore have had, or might
otherwise have hereafter had or claimed against the said Releasees, or any
of them, from the beginning of time to the date of this Agreement,
including but not limited to any and all claims arising out of or in
connection with or relating to any of the Relevant Agreements or the
matters which are the subject of the Lawsuit.
3.2 Except for any obligations expressly preserved in or created by this
Agreement, each of the CNBC Parties hereby irrevocably waives,
unconditionally releases and forever discharges each of the BHL Parties,
each of their Affiliates, and all of their respective Associated
Individuals (herein, collectively, "Releases") of and from any and all
manner of suits, debts, demands, claims, causes of action, liabilities or
obligations, of whatsoever kind or nature, whether in law or equity, which
any of the CNBC Parties may now have, may heretofore have had, or might
otherwise have hereafter had or claimed against the said Releasees, or any
of them, from the beginning of time to the date of this Agreement,
including but not limited to any and all claims arising out of or in
connection with or relating to any of the Relevant Agreements or the
matters which are the subject of the Lawsuit.
3.3 Each of the BHL Parties hereby undertakes to procure that none of the BHL
Parties shall at an time hereafter commence, bring, pursue, make or
continue to make or pursue against any of the CNBC Parties or any of their
Associated Individuals any claim, action, suit or proceedings of any
description whatsoever which arises out of or is in any way connected with
any of the Relevant Agreements or any act or omission by any of the CNBC
Parties or any of their Associated Individuals prior to the date of this
Agreement. Provided, however, that nothing contained herein is intended or
shall be construed or operate so as to prohibit or prevent any of the BHL
Parties from commencing and pursuing any claim, action, suit or
proceedings to construe and enforce, by way of an action for damages,
injunctive relief or otherwise, this Agreement or any of its provisions.
3.4 Each of the CNBC Parties hereby undertakes to procure that none of the
CNBC Parties shall at any time hereafter commence, bring, pursue, make or
continue to make or pursue against any of the BHL Parties or any of
their Associated Individuals any claim, action, suit or proceedings of any
description whatsoever which arises out of or is in any way connected with
any of the Relevant Agreements or any act or omission by any of the BHL
Parties or any of their Associated Individuals prior to the date of this
Agreement provided, however, that nothing contained herein is intended or
shall be construed or operate so as to prohibit or prevent any of the CNBC
Parties from commencing and pursuing any claim, action, suit or
proceedings to construe and enforce, by way of an action for damages,
injunctive relief or otherwise, this Agreement or any of its provisions
3.5 Each of the CNBC Parties and each of the BHL Parties hereby irrevocably
agrees that each of the Relevant Agreements is, with effect from the
Relevant Date, hereby terminated in its entirety so that, with the effect
from the Relevant Date, none of the CNBC Parties or the BHL Parties will
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have any further rights or obligations under or arising out of any of the
Relevant Agreements. Without prejudice to the generality of the foregoing,
(a) CNBC Sports represents to the BHL Parties that CNBC Sports has,
prior to the date of this Agreement, provided to Focused Media
television airtime promoting Global Golf and/or the xxxxxxxxxx.xxx
Internet web site (constituting Non-US Inventory, as defined in the
Airtime Agreement) as detailed in Schedule 3 hereto attached.
(b) The BHL Parties acknowledge that the Non-US Inventory provided to
Focused Media, as per Schedule 3 hereto attached, was of a value of
US $700,000, and that CNBC shall have no obligation to provide any
additional amount or unit of the Non-US Inventory to or for any of
the BHL Parties.
(c) CNBC Sports acknowledges that it has heretofore received payment of
US $300,000 from BHL; will upon its receipt of the Payment (and its
acceptance of same, if received after the Payment Receipt Deadline)
have received a total of US $700,000; and will neither be entitled
nor claim entitlement to any further payments from BHL or any of
the other BHL Parties.
3.6 Upon CNBC Sports' receipt of the Payment (and its acceptance of same, if
received after the Payment Receipt Deadline), the Lawsuit shall forthwith
be dismissed with prejudice and without any attorney's fees or costs being
awarded to or paid by either the plaintiff or any of the defendants named
in said Lawsuit. For such purpose, CNBC Sports and BHL shall, and BHL
shall procure that the individual defendants named shall, promptly enter
into a joint stipulation to that effect, and the same shall be submitted
to the Court with a proposed order to the same effect
3.7 Each of the BHL Parties undertakes, covenants, represents and warrants to
and for the intended benefit of each of the CNBC Parties that it shall not
at any time solicit, incite or encourage any person to bring or make, or
assist or participate in the making or bringing of, any claim, action,
suit or proceedings of any description whatsoever which arises out of or
is in any way connected with (a) any of the Relevant Agreements or (b) any
act or omission by any of the CNBC Parties or any of their Associated
Individuals prior to the date of this Agreement which related to or
otherwise involved any of the BHL Parties.
3.8 Each of the CNBC Parties undertakes, covenants, represents and warrants to
and for the intended benefit of each of the BHL Parties that it shall not
at any time solicit, incite or encourage any person to bring or make, or
assist or participate in the making or bringing of, any claim, action,
suit or proceedings of any description whatsoever which arises out of or
is in any way connected with (a) any of the Relevant Agreements or (b) any
act or omission by any of the BHL Parties or any of their Associated
Individuals prior to the date of this Agreement which related to or
otherwise involved any of the CNBC Parties.
4. MARKETING
4.1 Subject to Clauses 2.2, 2.3 and 4.2, CNBC Sports hereby grants to Focused
Media and to BHL a non-exclusive licence, for a period of one hundred and
twenty (120) days commencing upon the Relevant Date (the "License
Period"), and without any obligation on the part of any of the BHL
Parties to make any payment to CNBC Sports therefor, to:
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(a) display the Logo on the xxxxxxxxxx.xxx web site, provided that
the size, positioning and prominence of such display has been
approved in writing by CNBC Sports (such approval not to be
unreasonably withheld or delayed) and provided further that no
textual matter may be added in proximity to such display of
the Logo;
(b) use the Logo, for identification purposes only, in print
media, provided that any such use of the Logo has been
submitted to and approved by CNBC Sports in writing prior to
such use (such approval not to be unreasonably withheld or
delayed) and provided further that any such use of the Logo
shall be discreet and not identify CNBC Sports as a
shareholder in any of the BHL Parties (unless CNBC Sports
shall agree to become a shareholder and in fact becomes a
shareholder during the License Period);
(c) refer to CNBC Sports as a provider of marketing assistance to
Focused Media in the Agreed Form in press releases and other
printed materials issued by BHL or Focused Media (but not in
any form other than the Agreed Form), provided, however, that
if any such press release or other printed material includes
any other content which, whether independently or when read in
context with the statement in the Agreed Form, refers to CNBC
Sports, whether directly or indirectly, and whether expressly
or impliedly, then such press release or other printed
material shall first have been submitted to and approved by
CNBC Sports in writing prior to this issue (such approval not
to be unreasonably withheld or delayed). In no event shall any
such reference to CNBC Sports suggest any association between
CNBC Sports and any goods or service provided, marketed or
sold by any of the BHL Parties other than the xxxxxxxxxx.xxx
website.
4.2 Each and every use of the Logo in accordance with Clause 4.1 shall in
any event comply with all written guidelines to which CNBC Sports is
subject in relation to use of the Logo or any part thereof. Within
three (3) business days after the Relevant Date, CNBC Sports shall
provide to BHL a copy of such guidelines as currently in effect. CNBC
Sports shall also provide to BHL copies of any modifications to such
guidelines which may be made during the License Period, promptly upon
their becoming effective.
4.3 Upon the expiry of the License Period, the Logo shall, in the absence
of any further written agreement by CNBC Sports to the contrary, be
immediately removed from the web site referred to in Clause 4.1(a)
above, and no further reference may be made to CNBC Sports by any of
the BHL Parties in any medium or media, press release or other
communication whatsoever circulated or intended for circulation,
whether directly or indirectly, to the public.
5. COMPETITION
5.1 Subject only to Clause 5.3 below, it is irrevocably agreed by each of
the BHL Parties that, after the Relevant Date, each of the CNBC Parties
and their Affiliates (whether now existing or hereafter coming into
being) may and is freely entitled to engage in any activity or line of
business whatsoever, and to compete in any lawful manner with any of
the BHL Parties in any activity or line of business whatsoever, without
interference or adverse claim by any of the BHL Parties.
5.2 It is irrevocably agreed by each of the CNBC Parties that, after the
Relevant Date, each of the BHL Parties and their Affiliates (whether
now existing or hereafter coming into being) may and is freely entitled
to engage in any activity or line of business whatsoever, and to
compete in any
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lawful manner with any of the CNBC Parties, in any activity or line of
business whatsoever, without interference or adverse claim by any of
the CNBC Parties.
5.3 Each of the CNBC Parties undertakes, covenants, represents and warrants
to and for the intended benefit of each of the BHL Parties that it
shall not:
(a) from and after the signature of this Agreement and for a
period of six (6) months from the Relevant Date, (i) enter
into any agreement or business relationship with any of the
companies listed in Schedule 1(a), (ii) engage in any
communications with any of said companies, or with any person
on behalf of any of them, for the purpose of negotiating or
entering into any agreement or business relationship, or (iii)
enter into any agreement or business relationship or engage in
any communications with any person or company known by any of
the CNBC Parties to be an Affiliate of any of the companies
listed in Schedule 1(a) with the purpose of circumventing the
provisions of this Clause 5.3(a);
(b) from and after the signature of this Agreement and for a
period of sixty (60) days from the Relevant Date, (i) enter
into any agreement or business relationship with any of the
companies listed in Schedule 1(b), (ii) engage in any
communications with any of said companies, or with any person
on behalf of any of them, for the purpose of negotiating or
entering into any business agreement or relationship, or (iii)
enter into any agreement or business relationship or engage in
any communications with any person or company known by any of
the CNBC Parties to be an Affiliate of any of the companies
listed in Schedule 1(b) with the purpose of circumventing the
provisions of this Clause 5.3(b); or
(c) for a period of three (3) months from the Relevant Date,
whether directly or indirectly through any Affiliate or other
entity, build, own or operate any system for the reservation
of tee-times by golfers on the Internet.
5.4 Each of the CNBC Parties further undertakes, covenants, represents and
warrants to and for the intended benefit of each of the BHL Parties
that neither it nor any of its Affiliates shall, at any time from and
after the signature of this Agreement:
(a) have or claim to have any right, title or interest, whether
legal or beneficial, in the names "Global Golf" (when those
words are used in combination with each other) or
"GlobalGolf", or in the URL "xxxxxxxxxx.xxx", whether or not
the said names or URL are registered or otherwise protected
under the laws of any jurisdiction;
(b) use or claim any right or license to use either of the names
or the URL mentioned in Clause 5.4(a), whether or not the said
names or URL are registered or otherwise protected under the
laws of any jurisdiction; or
(c) adopt, in connection with any golfing-related web site on the
Internet, any other business name, trade name or URL which
utilises or incorporates the word "global", whether separately
or as an integral part of a compound word (such as, by way of
example only, "theglobalgolfer"), whether or not any such
names or URLs are registered or otherwise protected under
the laws of any jurisdiction.
5.5 Each of the CNBC Parties further undertakes, covenants, represents and
warrants to and for the intended benefit of each of the BHL Parties
that neither it nor any of its Affiliates shall without the prior
written consent of BHL, at any time during the period of twelve (12)
months following the signature of this Agreement, use, create or build
any brand name which (a) utilises or incorporates the word "global",
whether separately or as an integral part of a compound word
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(such as, by way of example only, "theglobalgolfer"), in connection
with any golfing-related business or enterprise (whether or not
Internet-related) and (b) is owned by any of the CNBC Parties or their
Affiliates in whole or in part. It is understood that the undertakings,
covenants, representations and warranties contained in Clause 5.4 shall
continue in full force and effect notwithstanding the expiry of those
contained in this Clause 5.5.
5.6 Each of the CNBC Parties acknowledges that the undertakings, covenants,
representations and warranties made by them in Clauses 5.3, 5.4 and 5.5
are reasonable in scope and duration, and are appropriate and necessary
for the protection of the interests of the BHL Parties, in the light
of (a) the past and ongoing discussions and negotiations which were
initiated by one or more of the BHL Parties with the companies listed
in Schedules 1(a) and 1(b); (b)the relationship which was established
between the BHL Parties and the CNBC Parties pursuant to the Relevant
Agreements (c) the information which has been provided by the BHL
Parties to the CNBC Parties, concerning the listed companies and the
potential benefits of establishing business relationships with them, in
reliance upon the Relevant Agreements; (d) the prospective termination
of the Relevant Agreements pursuant to this Agreement, and (e) the
establishment, use and promotion of the names and URL mentioned in
Clause 5.4(a) by one or more of the BHL Parties long prior to the
signature of any of the Relevant Agreements.
5.7 Each of the CNBC Parties further acknowledges that in the event of any
breach or threatened breach of any of the undertakings, covenants,
representations and warranties made by them in Clauses 5.3, 5.4 and
5.5, one or more of the BHL Parties will be subjected to the imminent
risk of irreparable harm, and that the damages sustained as a result
may be difficult or impossible to quantify. Accordingly, in the event
of any such breach or threatened breach, any of the BHL Parties
aggrieved thereby shall be entitled to immediate injunctive relief, in
addition to any other remedies available to them at law or in equity.
6. SHARE CAPITAL AND ASSETS OF FOCUSED MEDIA AND GLOBALGOLF
6.1 From and after the signature of this Agreement, and notwithstanding any
prior agreements and understandings (including but not limited to any
provisions contained in the Relevant Agreements), none of the CNBC
Parties shall either have or claim to have any legal or equitable
right, title or interest in, or entitlement,
(a) to any shares of Focused Media or Global Golf, whether
presently issued or unissued;
(b) to any of the following existing assets of Focused Media or
Global Golf, to wit:
(i) any funds presently on deposit in any account in the
name of Focused Media or Global Golf in any bank in
the Republic of Ireland or Northern Ireland;
(ii) any furniture, furnishings, computer equipment,
computer storage media and other tangible personal
property which is presently owned by Focused Media or
Global Golf and located in the Republic of Ireland or
Northern Ireland;
(iii) the company registers and any and all business
records and papers of Focused Media or Global Golf
located in the Republic of Ireland or Northern
Ireland;
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(iv) any rights of Focused Media or Global Golf under any
leases of real property or office space, and any
leasehold improvements, located in the Republic of
Ireland or Northern Ireland;
(v) any rights of Focused Media or Global Golf under any
leases of equipment which is located in the Republic
of Ireland or Northern Ireland and used in connection
with the business of either company;
(vi) any accounts receivable for products sold or services
provided by Focused Media or Global Golf in the
Republic of Ireland or Northern Ireland, or through
the xxxxxxxxxx.xxx web site;
(vii) any rights under any employment contracts (whether
written or oral) between Focused Media or Global Golf
and any of their employees who presently reside in
the Republic of Ireland or Northern Ireland;
(viii) any and all computer programs, software and related
materials (including but not limited to all source
code, object code, executable files, data, storage
media, and printouts) which are presently owned by
Focused Media or Global Golf and located in the
Republic of Ireland or Northern Ireland, or which
have heretofore been developed by Focused Media or
Global Golf in the course of their operations in the
Republic of Ireland or Northern Ireland for use or
potential use in connection with the development,
operation and maintenance of the xxxxxxxxxx.xxx web
site, and any and all copyrights, trademarks and
other intellectual property rights with regard
thereto which are presently owned by Focused Media or
Global Golf (whether or not the same are registered
in any jurisdiction);
(ix) any and all rights to the name "Global Golf" and the
URL "xxxxxxxxxx.xxx", whether or not the said names
or URL are registered or otherwise protected under
the laws of any jurisdiction; and
(x) any rights pursuant to any contracts for telephone
service, utilities services and Internet service
presently being furnished to Focused Media or Global
Golf in the Republic of Ireland or Northern Ireland.
(c) Any property, contract rights and other assets, of any kind or
description, which are lawfully acquired by Focused Media or
Global Golf at any time after the date of this Agreement and
are so acquired utilising monies provided by any of the CNBC
Parties prior to the date of this Agreement.
7. EXCHANGE OF LETTERS
7.1 Upon the Relevant Date, BHL will deliver to Xxxxxx Xxxxx Sapte
(attention: Xxxxxxxx Xxxx) by telefax (020 7320 6693) a letter in form
and content the same as Schedule 4 attached.
7.2 Upon the Relevant Date, CNBC Sports will deliver to Xxxxx X. Xxxxxxxxx
by telefax (001 914 923 9760) a letter in the form attached as
Schedule 5.
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7.3 Upon the Relevant Date, CNBC Sports will also deliver to Xxxxx X.
Xxxxxxxxx by telefax (001 914 923 9760) a letter in the form attached
as Schedule 6.
7.4 Within 120 days after the date of this Agreement BHL shall deliver to
CNBC Sports a certified copy of duly passed resolutions of the boards
of directors of Focused Media and Global Golf ratifying the execution
of this Agreement by the signatories to this Agreement on behalf of
Focused Media and Global Golf.
8. RELATIONSHIPS WITH OTHER PARTIES
8.1 CNBC Sports represents to the BHL Parties that neither the CNBC Parties
nor any of their Affiliates, nor any of their respective Associated
Individuals, has heretofore entered into any contract with, or incurred
any financial or other obligation to, Xxxxxx Xxxxx-Xxxxx, Xxxxxxxx
Consulting, Twelve Stars Communications Limited, or Sportal
International Limited, or any other party, for which any of the BHL
Parties are or may be liable or responsible. CNBC Sports hereby agrees
to hold harmless and indemnify the BHL Parties in respect of any debt,
claim, cause of action or liability asserted against them or any of
them contrary to the foregoing representation, and in respect of any
cost or expense (including attorney's fees) which may be incurred by
the BHL Parties or any of them as the result of the assertion of any
such debt, claim, cause of action or liability.
8.2 Without limiting the generality of Clause 8.1, CNBC Sports represents
to the BHL Parties that neither it nor any of its Affiliates, nor any
of their respective Associated Individuals, has heretofore entered into
any contract of employment, whether written or oral, with Xxxxxxx
Xxxxxx, on behalf of any of the BHL Parties. CNBC Sports hereby agrees
to hold harmless and indemnify the BHL Parties in respect of any debt,
claim, cause of action or liability asserted against them or any of
them contrary to the foregoing representation, and in respect of any
cost or expense (including attorney's fees) which may incurred by the
BHL Parties or any of them as the result of the assertion of any such
debt, claim, cause of action or liability.
8.3 BHL represents to the CNBC Parties that neither the BHL Parties nor any
of their Affiliates, nor any of their respective Associated
Individuals, has heretofore entered into any contract with, or incurred
any financial or other obligation to, Xxxxxx Xxxxx-Xxxxx, Xxxxxxxx
Consulting, Twelve Stars Communications Limited, or Sportal
International Limited, or any other party, for which any of the CNBC
Parties are or may be liable or responsible. BHL hereby agrees to hold
harmless and indemnify the CNBC Parties in respect of any debt, claim,
cause of action or liability asserted against them or any of them
contrary to the foregoing representation, and in respect of any cost or
expense (including attorney's fees) which may incurred by the CNBC
Parties or any of them as the result of the assertion of any such debt,
claim, cause of action or liability.
8.4 Provided that the representation made by CNBC Sports in Clause 8.1 is
true and correct, each of the BHL Parties acknowledges that, as of the
signature of this Agreement, it has no contractual relationship with
Xxxxxx Xxxxx-Xxxxx, Xxxxxxxx Consulting, Twelve Star Communications
Limited or Sportal International Limited (herein, "Third Parties").
Except as expressly stated in Clause 8.5 below, each of the BHL
Parties hereby irrevocably waives and disclaims any and all right,
title and interest in and to any existing or future work performed by
any of said Third Parties for or on behalf of CNBC Sports; provided,
however, that nothing contained in this clause shall preclude any of
the BHL Parties from entering into any contract or business
relationship with any of said Third Parties at any time after the
signature of this Agreement.
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8.5 Reference is made to that certain spiral-bound booklet containing an
evaluation of xxxxxxxxxx.xxx, as prepared by Xxxxxxxx Consulting and
provided to the parties at their meeting on 2 December 1999. Each of
the parties to this Agreement shall be entitled to utilise the
information and concepts contained therein. Such use shall not give
rise to any claim by any other party, so long as such use is not in
violation of any of the express provisions of this Agreement.
8.6 Each of the BHL Parties hereby irrevocably waives and disclaims any and
all right, title and interest in and to the logo design depicted in
Schedule 7, which was heretofore commissioned by CNBC Sports from
Twelve Stars Communications Limited, and hereby irrevocably
acknowledges and agrees that any of the CNBC Parties or their licensees
may use such design in their absolute discretion, so long as the word
"global" (whether separately or as part of any compound word) is not
used in or in conjunction with such design.
8.7 CNBC Sports hereby acknowledges and confirms that it heretofore entered
into a contractual arrangement with Xxx Xxxxxxxx on behalf of or for
the benefit of Focused Media, which expired on December 31, 1999 but
pursuant to which there are or may be sums of money due remaining due
and owing to Xxx Xxxxxxxx. CNBC Sports hereby agrees to hold harmless
and indemnify the BHL Parties against any and all claims, actions and
proceedings (and all associated liabilities, costs and expenses,
including attorney's fees) made or brought by Xxx Xxxxxxxx arising out
of or in connection with said contractual arrangement.
9. VIDEOTAPES
9.1 Within thirty (30) days after the Relevant Date and payment to CNBC
Sports of the editing costs referred to in the immediately following
sentence, CNBC Sports shall provide to BHL the videotapes which
contain the airtime promotions produced for Focused Media and BHL under
the Airtime Agreement. However, CNBC Sports shall be freely entitled,
at BHL's cost (such cost not to exceed US $5,000 and to be confirmed
to BHL prior to the work being performed) to edit out of those tapes
any reference whatsoever made to CNBC Sports and/or the Logo.
9.2 CNBC Sports will not willfully carry out the editing of said videotapes
in such a manner as to destroy the integrity and usability of the
remaining contents.
9.3 The videotapes (as edited) and all of their contents shall be and
remain the exclusive property of BHL. BHL shall be free to utilise
the tapes in such manner as it sees fit, without the consent of CNBC
Sports and without the payment of any license fees or other
compensation to CNBC Sports.
10. PUBLIC STATEMENTS; NO DISCLOSURE AND DISPARAGEMENT
10.1 Each of the parties hereby undertakes that neither it nor any of its
Affiliates, nor any of their respective Associated Individuals, shall,
at any time hereafter, publish, disseminate, divulge or communicate to
any other person any details or copies of this Agreement, or make any
public announcement or issue any press release regarding this
Agreement, any of its terms, or the change in the relationship of any
of the BHL Parties to any of the CNBC Parties effected by this
Agreement, unless it is required to do so by any applicable law or the
rules of any stock
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exchange, or unless it shall have first obtained the written agreement
of each of the other parties to this Agreement.
10.2 Each of the parties to this Agreement further undertakes that neither
it nor any of its Affiliates, nor any of their respective Associated
Individuals, shall, at any time hereafter, make any communication or
statement to any other person whomsoever, or issue any public
announcement, statement or press release, which is in any way
disparaging of any of the other parties to this Agreement, or of any of
their Affiliates, or of any of their Associated Individuals.
11. GOVERNING LAW; RESOLUTION OF DISPUTES; SERVICE OF PROCESS
11.1 This Agreement shall be governed by and construed in all respects in
accordance with English law, and it is irrevocably agreed that the
courts of England shall have jurisdiction to settle any disputes which
may arise out of or in connection with this Agreement, and that,
accordingly, any suit, action or proceeding arising out of or in
connection with this Agreement (in this Clause and in Clause 11.2
referred to as "Proceedings") may be brought in such courts. Nothing in
this Clause shall limit the right of any party to commence and maintain
Proceedings against any other party in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdiction preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
11.2 In any such Proceedings, the prevailing party (as determined by the
court having jurisdiction thereof) shall be entitled to recover its
reasonable and actual attorney's fees and costs, in addition to any
other relief obtained.
11.3 The BHL Parties appoint Xxxx Xxxxx, A&L Goodbody, 1st Floor, Pinnacle
House, 23-26 St. Xxxxxxx'x Xxxx, London EC3 R8HL, as their authorised
agent in England and Wales, for the purpose of accepting service of
process for all purposes in connection with this Agreement.
11.4 Cycad appoints Xxxxxx Xxxxxx of Xxxxxxxxxx, Xxxxxxxxxx, Xxxxxx Xxx,
Xxxxxxxxxxxxxxx XX0 0XX as its authorised agent in England and Wales,
for the purpose of accepting service of process for all purposes in
connection with this Agreement.
12. MISCELLANEOUS
12.1 None of the parties, by entering into this Agreement, is acknowledging
its liability, or the liability or non-liability of any other party,
its Affiliates, or any of their respective Associated Individuals, to
anyone with respect to any matter whatsoever preceding the date of this
Agreement.
12.2 This Agreement is intended to be comprehensive in nature. Any and all
rights and obligations as between any of the BHL Parties and any of the
CNBC Parties arising out of or in connection with or in any manner
relating to any of the Relevant Agreements, to the extent not expressly
referred to in this Agreement, have not been omitted through
inadvertence, but are intentionally and irrevocably waived. No
representations or promises have been made by any of the parties to any
other party in relation to this Agreement, and no representations or
promises are or can be relied upon, other than those which are
expressly set forth in this Agreement and its Schedules.
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12.3 Any and all notices which are required or which any party desires to
issue to any other party pursuant to the terms of this Agreement shall
be transmitted by post or overnight courier, with copies by telefax,
directed to the recipient at its addresses as indicated in this
Agreement, or at such other address as such party may hereafter in
writing designate, and shall be deemed served when first of any of such
copies is actually received.
12.4 Each party shall bear all legal and other costs and expenses incurred
by it in connection with this Agreement.
12.5 This Agreement may be executed in one or more counterparts, and each
counterpart shall, when executed, constitute or be deemed to constitute
one and the same legally binding and enforceable contract.
12.6 Each party shall be entitled to receive, and shall be provided as
promptly as practicable following the signature of this Agreement, a
true, correct and complete copy of this Agreement with all of its
Schedules (or of copies executed in counterparts, as the case may be)
reflecting the original signatures of all of the parties. Pending each
party's receipt of same, facsimile copies of this Agreement with all of
its Schedules (or of copies executed in counterparts, as the case may
be) shall serve as originals and be sufficient as such for all
purposes.
12.7 Each party (a) represents that its signatory has the power and
authority to sign this Agreement and, by doing so, to bind that party
to this Agreement and all of its terms, and (b) agrees to indemnify
each of the other parties to this Agreement in respect of any damages
sustained, and any costs or expenses (including attorney's fees)
incurred, as the result of any claim to the contrary.
12.8 BHL (a) represents and warrants that the signatories to this Agreement
on behalf of Global Golf and Focused Media have the power and authority
to sign this Agreement and, by doing so, to bind that party to this
Agreement and all of its terms and (b) shall indemnify and keep
indemnified each of the CNBC Parties against all liabilities, claims,
actions, proceedings, costs, damages and expenses (including without
limitation reasonable legal fees) reasonably and properly incurred by
each of the CNBC Parties and arising out of any breach of such
representation and warranty.
12.9 CNBC Sports (a) represents and warrants that the signatory to this
Agreement on behalf of Xxxx has the power and authority to sign this
Agreement and, by doing so, to bind that party to this Agreement and
all of its terms and (b) shall indemnify and keep indemnified each of
the BHL Parties against all liabilities, claims, actions, proceedings,
costs, damages and expenses (including without limitation reasonable
legal fees) reasonably and properly incurred by each of the BHL
Parties and arising out of any breach of such representation and
warranty.
12.10 BHL hereby undertakes, covenants, represents and warrants to and for
the intended benefit of each of the CNBC Parties that it shall not
permit any third party to acquire (by way of a transfer of or
subscription for shares or otherwise) control (as defined in the
definition of an "Affiliate" contained herein) of Focused Media or
Global Golf unless and until:
(a) BHL shall have delivered to CNBC Sports a certified copy of
the board resolutions referred to in Clause 7.4; or
(b) BHL shall have procured the due execution and delivery to
CNBC Sports by any third party, who so acquires such control,
of a warranty, representation and indemnity in the same terms
as Clause 12.8 and in the form of a deed.
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IN WITNESS whereof the parties, by their undersigned representatives,
hereby execute this Agreement
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SIGNED for and on behalf of )
CNBC SPORTS INTERNATIONAL ) /s/ [ILLEGIBLE]
LIMITED )
SIGNED for and on behalf of )
FOCUSED MEDIA LIMITED ) /s/ [ILLEGIBLE] 2/25/00
SIGNED for and on behalf of )
GLOBAL GOLF LIMITED ) /s/ [ILLEGIBLE] 2/25/00
SIGNED for and on behalf of )
XXXXXXX HILLS, LTD. ) /s/ [ILLEGIBLE] 2/26/00
SIGNED for and on behalf of )
CYCAD FINANCIAL HOLDINGS ) /s/ [ILLEGIBLE]
LIMITED )
SIGNED for and on behalf of )
XXXX TRADING LIMITED ) /s/ [ILLEGIBLE]
