Wired Ventures Inc. Contracts
Sample Business Contracts
Letter of Agreement - Guardian Media Group plc, Wired Ventures Ltd., Karadean Ltd., Wired World LLC, Guardian Magazines Ltd., Wired UK, Guardian Newspapers Ltd. and Wired New York
Stock Purchase Forms
CONFORMED COPY
22 July 1995
1. INTRODUCTION
1.1 This is a letter of agreement in relation to Wired UK
(registered no. 2972399) ("the Company") between the parties
listed on pages 21 to 22 of this letter. Various definitions
used in this letter are contained in paragraph 19.
1.2 The Company wishes to cancel one of its 'A' Shares by
acquiring that share. Wired Investments and Wired New York
wish to acquire the remaining 'A' Shares in the proportions of
48 and one respectively.
2. SALE AND PURCHASE
2.1 Guardian Investments agrees to sell with full title guarantee
and the Purchasers (in the proportions of 48 Shares to Wired
Investments, one Share to Wired New York and one Share to the
Company) agree to buy the Shares and each right attaching to
the Shares at or after the date of this Agreement.
2.2 The purchase price of the Shares is (pound sterling)50.
2.3 Guardian Investments covenants to the Purchasers that it is
the only legal and only beneficial owner of the Shares, that
there is no Encumbrance, and there is no agreement,
arrangement or obligation to create or give an Encumbrance, in
relation to any of the Shares and that no person has claimed
to be entitled to an Encumbrance in relation to any of the
Shares.
3. COMPLETION
Completion of this agreement ("Completion") will take place immediately
after its signing when all of the following will take place:-
3.1 The Guardian will deliver to Wired Investments the following
documents:-
(a) a transfer of 48 of the Shares to Wired Investments,
a transfer of one of the Shares to Wired New York and
a transfer of one of the Shares to the Company in
each case duly executed on behalf of Guardian
Investments (the "Share Transfers") and the share
certificate (or duly executed indemnity in respect of
any lost share certificate) for the Shares:
(b) duly executed resignations in the agreed form from
David Brook, Anthony Ageh and Paul Naismith as
directors of the Company and of Wired
1.
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Limited and from Julian Turner as secretary of the
Company and of Wired Limited;
(c) (i) confirmation that the Guardian has paid
(pound sterling)297,554 to the Company
immediately prior to signature of this
Agreement ("the Pre Agreement Payment"):
(ii) confirmation from Lovell White Durrant that
it is holding (pound sterling)350,000 in
its client account to the order of the
Company;
(d) a copy of the Loan Note and of the Guarantee duly
executed on behalf of the Guardian: and
(e) each register, minute book and other book required to
be kept by the Company and Wired Limited under the
Companies Act made up to the date of Completion and
each certificate of incorporation and certificate of
incorporation on change of name for the Company and
Wired Limited.
3.2 Wired Investments, Wired New York and the Company will deliver
to the Guardian (pound sterling)50 in consideration for the
Shares.
3.3 The Purchasers will countersign the appropriate Share
Transfers as transferees.
3.4 The Company and/or Wired Ventures will deliver to the
Guardian:
(a) a copy of the Loan Note duly executed on behalf of
the Company and Wired Ventures and a copy of the
Guarantee duly executed on behalf of Wired Ventures:
the consideration for the Loan Note and the Guarantee
will be:
(i) in respect of tranche A of the Loan Note and
the respective part of the Guarantee,
payment by the Guardian of (pound sterling)
350,000 under clause 3.1(c)(ii):
(ii) in respect of tranche B of the Loan Note and
the respective part of the Guarantee, the
Pre Agreement Payment, the assumption of
liabilities pursuant to clause 5 and the
confirmation of debt position under clause
4; and
(b) a copy of the duly executed Letter of Opinion; and
(c) (pound sterling)10.000 in respect of the payment
pursuant to clause 3.7 hereof.
2.
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3.5 The Guardian and Wired Ventures will procure that:-
(a) a shareholders meeting of the Company is held at
short notice at Completion to pass the resolutions in
the agreed form with their consent to any variation
of class rights:
(b) a board meeting of the Company is held at Completion
at which the Share Transfers are both approved and
(in the case of the transfers to Wired Investments
and to Wired New York) registered and that the
remaining one 'A' Share is cancelled.
3.6 The Company will promptly file with the registrar of companies
the forms required by section 288 of the Companies Act 1985 in
respect of the resignations referred to in clause 3.1(b).
3.7 Wired Investments will discontinue the High Court proceedings
commenced by it against Wired UK and Guardian Investments
under Action no. 1995 W No. 3839 including its application for
interlocutory injunctive relief in those proceedings on terms
that each party bears its own costs to date except that Wired
Investments shall pay Guardian Investments (pound sterling)
10.000 on Completion in respect of its costs in respect of and
incidental to Wired Investments' application for ex parte
interlocutory relief against Wired UK on 26 June 1995.
3.8.1 Wired Investments and/or Wired Ventures will use its best
endeavours to procure a release by Michael Schrage of any
claim he might have against the Company in relation to the
publication of the article "Revolutionary Evolutionist" in the
July/August 1995 UK edition of Wired ("the Publication").
3.8.2 An authors fee of (pound sterling)1,500 payable by the
Company to Michael Schrage in respect of the Publication will
be deemed to be a liability arising by mason of an act or
omission by or on behalf of the Company before Completion
for which the Guardian is liable under clause 5.1: the
Guardian will pay the Company (pound sterling)1,500 within
30 days of Completion in respect thereof and the Company
will pay that mount to Michael Schrage as his authors fee.
3.8.3 Any judgement for damages arising out of any claim by Michael
Schrage in respect of the Publication (and any settlement of
any such claim), together with the costs of defending any such
claim, will be for the sole account of the Company
(notwithstanding any other provisions in this letter,
particularly clause 5.1), and the Guardian will not have any
liability, nor any liability to reimburse the Company, in
respect thereof (except as provided in clause 3.8.2 above).
For the avoidance of doubt, this clause 3.8.3 is in
substitution for the indemnity contained in its undertaking
given on 26 June 1995 (and recorded in the Order made by
Blackburne J on that day in Action No. 1995 W No. 3839) in
relation to the Publication.
3.
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3.9 Guardian Investments will procure that the necessary
authorized signatories to the Company's bank account(s) sign
the necessary documentation to change the authorized
signatories in such manner as Wired Investments may request.
4. GUARDIAN DEBTS
4.1 The Guardian covenants to Wired Investments that the only sums
due from the Company to any members of the Guardian Group
(whether or not yet due and payable) ("the Guardian Debts")
are accurately set out below:
AMOUNT BASIS OF DEBT
(pound sterling)497.554 capital loan due to Guardian
Investments (including in
respect of the Pre Agreement
Payment)
(pound sterling)327,601 sum due to the Guardian in
respect of intercompany loan
accounts
4.2 The Guardian Debts will in future be owed on the terms of the
Loan Note. The Guardian (on behalf of all members of the
Guardian Group) confirms that with effect from Completion
there are no sums due from the Company to any members of the
Guardian Group (whether or not yet due and payable) or any
obligations to the Guardian Group on the part of the Company
other than (i) (pound sterling)1.000,000 pursuant to the
Loan Note or (ii) pursuant to other clauses of this Agreement.
5. OTHER LIABILITIES
5.1 The Guardian shall be responsible for, and shall duly and
promptly (and in any event within 30 days of the date of this
letter or, in the case of a subsequent claim, 30 days of
notice of the claim) pay and discharge, all debts (other than
the Guardian Debts) or other amounts payable by the Company
and claims by third parties outstanding against the Company as
at Completion or arising by reason of any act or omission by
or on behalf of the Company on or before Completion including
all outgoings and expenses of the Company (including without
limitation, wages, commissions, accrued holiday pay, bonuses
and other outgoings in respect of employees and all
accommodation charges in respect of the Premises) in respect
of the period ending on Completion.
5.2 Without prejudice to clause 6.1(b). the Guardian shall
indemnify the Company against all losses, liabilities and
costs which the Company may incur arising out of, or as a
consequence of, the ownership or operation of its business or
any of its assets before Completion (including, without
limitation, all losses, liabilities and costs incurred as a
result of defending or settling any claim alleging any such
liability).
4.
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5.3.1 The Guardian shall have not have any liability under clauses
5.1 or 5.2 in respect of:
(a) the Loan Note:
(b) any management fees payable under the Shareholders
Agreement:
(c) any Excluded Matters;
(d) any non-performance after Completion by the Company
of any of the Contracts the terms of which are set
out in Appendix 10.1 except to the extent that
liability results from breach or non-performance by
the Company before Completion.
5.3.2 The provisions of clause 5.5.12 will apply in relation to the
Excluded Order (as defined in that clause).
5.4 Outgoings, losses, liabilities, costs and expenses of the
Company will be apportioned on the basis set out in clauses
5.1, 5.2 and 5.3 above. For the avoidance of doubt,
liabilities of the Company (other than those which are the
responsibility of the Guardian or the subject of an indemnity
from the Guardian under clauses 5.1 or 5.2) are to be
apportioned to the Company for these purposes. If there is any
dispute as to apportionment which is not resolved by the
Guardian and the Company within 30 days of the matter arising,
the question will be put to an independent accountant (the
"Expert") of not less than five years' standing. The Expert
will be either as agreed between the Guardian and the Company
or, in the absence of agreement within 14 days of the first
suggestion by either of them to the other, shall be appointed
by the President of the Royal Institute of Chartered
Accountants. The costs of the Expert shall be met equally by
the Guardian and the Company. The Expert shall act as an
expert and not as an arbitrator; his determination shall be
final and binding.
5.5.1 The Pre Agreement Payment was calculated on the basis of the
net current liability of the Company as shown by the
Management Accounts and represents an estimate of the net
current liability of the Company as at Completion. The
following provisions of this clause 5.5 set out a mechanism
for making adjusting payments where appropriate and are
without prejudice to the generality of and do not limit
clauses 5.1 to 5.4.
5.5.2 To the extent that the Company does not receive (pound
sterling)45,683 in respect of the "Trade Debtor -
advertising" asset shown in the Management Accounts within
30 days of Completion. The Guardian will promptly pay to the
Company the difference.
5.5.3 To the extent that the Company does not receive (pound
sterling)35,665 in respect of the "Trade Debtor" and "Trade
Debtor - Newstrade" assets shown in the Management
5.
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Accounts within 60 days of Completion, the Guardian will
promptly pay to the Company the difference.
5.5.4 To the extent that the Company does not receive (pound
sterling)72,087 in respect of the "VAT Repayable" asset
shown in the Management Accounts within 60 days of
Completion, the Guardian will promptly pay to the Company
the difference.
5.5.5 To the extent that the Company's reconciled cash at bank at
Completion (excluding for the avoidance of doubt the mounts
payable to the Company under clause 3.1) are greater or less
than (pound sterling)29,092 the Guardian will promptly pay
to the Company the deficiency and the Company will promptly
pay to the Guardian the excess.
5.5.6 Except to the extent to which the Company uses the newsprint
represented by the Newsprint Stock asset in the Management
Accounts in the September 1995 edition of Wired magazine (UK
edition). The Guardian will promptly acquire such stock from
the Company at the cost reflected in the Management Accounts
(except to the extent that the Company wishes to retain such
stock).
5.5.7 The Company will notify the Guardian of any creditors it
becomes aware of as at Completion which are not reflected in
the Management Accounts (other than in respect of the Guardian
Debts) and the Guardian will promptly discharge such debts on
behalf of the Company or, at the Guardian's option, put the
Company in funds to discharge such debts (in each case without
creating any debt from the Company to the Guardian).
5.5.8 To the extent the Guardian makes a payment to the Company
under the provisions of this clause 5.5 in respect of a debt
or VAT repayable, and the Company subsequently receives a
payment or credit from a third party in respect of the debt or
VAT repayable which was the subject of that payment by the
Guardian, the Company will promptly reimburse the Guardian to
the intent that the Company will not make a double recovery.
5.5.9 The Company will apply any amounts it receives under this
clause 5.5 and the Pre Agreement Payment to pay liabilities of
the Company without undue delay.
5.5.10 To the extent that the Company becomes aware of any debtors.
VAT repayables or cash at bank as at Completion in excess of
the amounts shown in the Management Accounts, or any creditors
(other than in respect of the Guardian Debts) as at Completion
being less than as shown in the Management Accounts, the
Company will promptly pay such difference to the Guardian. It
is not anticipated that any payments will be made for 30 days
following Completion.
5.5.11 If there is any dispute as to the amounts payable under this
clause 5.5 which is not resolved by the Guardian and the
Company within 30 days of the matter
6.
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arising, the question will be put to an independent accountant
(the "Expert") of not less than five years' standing. The
Expert will be either as greed between the Guardian and the
Company or, in the absence of agreement within 14 days of the
first suggestion by either of them to the other, shall be
appointed by the President of the Royal Institute of Chartered
Accountants. The costs of the Expert shall be met equally by
the Guardian and the Company. The Expert shall act as an
expert and not as an arbitrator; his determination shall be
final and binding.
5.5.12 For the avoidance of doubt the newsprint subject to the order
ref. 35159090 placed with McNaughton Publishing Papers Ltd. by
Guardian Newspapers dated 3005/95 for 40,000 kgs Kymexcote
Matt 80 gsm. ("Excluded Order") is not provided for, and is
not intended to be provided for, in the Management Accounts.
The Company will have no rights under the Excluded Order and
the Guardian will indemnify the Company in respect of all
liabilities, costs and expenses in relation to the Excluded
Order (unless the Company agrees in writing after Completion
with the Guardian that it wishes to purchase the Excluded
Order for its own benefit).
6. SUBSCRIPTION AND SHAREHOLDERS AGREEMENT
6.1 (a) With effect from Completion and subject to clause
6.1(b), the Subscription and Shareholders Agreement
dated 5 October 1994 between the parties hereto other
than Wired New York ("the Shareholders Agreement")
and the Facility Letter related thereto from GML to
the Company cease to have effect and the parties
thereto are released from all obligations thereunder
(including without limitation all obligations
thereunder (past. current or future) to pay
management or other fees. For the avoidance of doubt,
clause 20.2 of the Shareholders Agreement shall not
have effect and is hereby terminated.
(b) Notwithstanding any provision to the contrary herein,
each of the parties to the Shareholders Agreement
shall remain liable for any breach of that agreement
to the extent only that such breach causes any
liability of any of the other parties thereto to any
third party.
6.2 Each of the parties confirms to each other that it is not
aware of any claims or potential claims arising out of the
Shareholders Agreement or the operations of the Company up to
Completion other than the publication of material in the
July/August 1995 of Wired magazine (UK edition) without due
clearance of third party rights.
6.3 Subject as provided in clause 6.1(b). This Agreement releases
all claims and extinguishes all causes of action which the
parties may have against each other arising out of or in
connection with the Shareholders Agreement or the Joint
Venture.
7.
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7. WIRED UK
It is the intention of the Company and Wired Ventures that the Company
will continue producing Wired magazine (UK edition); the Company and
Wired Ventures guarantee to the Guardian that the Company will publish
separate September, October and November 1995 editions of Wired
magazine (UK edition). The sole remedy for breach of this clause 7
shall be the early repayment of the Loan Note under clause 2.2 of the
Loan Note.
8. PREMISES
8.1 The Company's occupation of its current premises ("the
Premises") will cease as soon as satisfactory alternative
arrangements can be met (and in any case not more than 2
months from Completion), pending which the Guardian will
procure that the Company may continue to occupy the Premises
free of charge and may continue to use free of charge all
equipment (including, without limitation, telephones,
photocopiers and computers) and facilities routinely needed to
operate that equipment provided in the past by the Guardian
Group to the Company: however the Company will meet the cost
to the Guardian of providing such equipment and consumables
including the cost of all telephone calls made by the Company
after Completion.
8.2 The Company hereby surrenders any existing tenancy, license or
other rights in respect of the Premises in consideration of
the Guardian Group allowing the Company to remain in
occupation as licensee only of the Premises free of
accommodation charges until 22 September 1995 at the latest
when the Company will vacate the Premises at its own cost.
During such occupation, and during its move from the Premises,
the Company will not cause any damage to the Premises or any
assets of the members of the Guardian Group on the Premises.
The Company will consult with the Guardian in advance of
taking any action which might reasonably be expected adversely
to affect the Guardian's electrical, computer or other
systems.
9. ASSETS
9.1 The Guardian covenants to Wired Investments that:-
(a) the Management Accounts as at 17 July 1995 in the
agreed form show a reasonable view of the assets and
liabilities of the Company as at 17 July 1995 and of
the losses of the Company for the period ended on
that date:
(b) since 17 July 1995 the business of the Company has
been carried on in the ordinary and usual course
without interruption, in the same manner as before
and so as to maintain the business of the Company as
a going concern:
8.
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(c) since 17 July 1995 there has been no material adverse
change in the financial or trading position of the
Company;
(d) since 17 July 1995 there has been no material change
in the assets and liabilities shown in the said
Management Accounts including (in particular but
without limitation) work in progress, trade debts and
customer prepayments:
(e) the assets of the Company include those listed on
Appendix 9.1 except for the items in paragraph 1 of
that Appendix which belong as otherwise indicated.
10. CONTRACTS
10.1 The Guardian covenants to the Company and Wired Investments
that (so far as it is aware):
(a) true, complete and accurate details of each Contract
are set out in Appendix 10.1 including, without
limitation, the full terms of each material oral
Contract:
(b) there are no material contracts, undertakings,
arrangements or engagements for the benefit of the
Company which are not in the name of the Company
except as set out in Appendix 10.1 and the
arrangements for the Premises.
10.2 "Contracts" means all contracts, undertakings. arrangements
and engagements of the Company which are wholly or partly
unperformed at the date of Completion including, without
limitation, supply and distribution agreements, customer and
supplier contracts, lease, hire and hire purchase agreements
but excluding contracts of employment with any employees (any
one of these being a "Contract").
11. INTER GROUP TRANSACTIONS
11.1 The Guardian covenants to Wired Investments that the full
terms of all contracts. arrangements and transactions between
the Company and members of the Guardian Group which are wholly
or partially unperformed at the date hereof or were in force
within the period of one month preceding today's date are set
out in Appendix 11.1.
12. PERSONNEL
12.1 The Guardian covenants to the Company and Wired Investments
that Appendix 12.1 contains an accurate list of all employees,
secondees and consultants to the
9.
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Company immediately prior to Completion ("Company personnel")
and in the case of the Requested Personnel of the terms of
their employment, secondment or consultancy as the case may be
including without limitation any commission arrangements and
any agreements relating to the provision of cars.
12.2 The Company, the Guardian and Wired Investments will each use
all reasonable efforts to procure the transfer to the Guardian
Group of the employment, secondment or consultancy of all
Company personnel other than the Requested Personnel on and
with effect from Completion. In the event that any such
Company personnel do not agree to such transfer, the Company
may, after notifying the Guardian, terminate any such
employment, secondment or consultancy and the Guardian will
indemnify the Company in respect of all costs, claims,
expenses, damages, any tribunal or court awards and any
redundancy payments ("Termination Costs") arising from any
such termination. Notwithstanding the provisions of clause 5,
the Guardian will be responsible for and will indemnify the
Company in respect of all the costs of the employment.
secondment and/or consultancy of all Company personnel (other
than the Requested Personnel) in respect of the period after
Completion.
12.3 The Company, the Guardian and Wired Investments will each use
all reasonable efforts to procure that the Requested Personnel
agree to continue to work for the Company on substantially the
same terms as currently Provided that, in the case of Ola
Osomo and Denis Cassidy, the Guardian will have no obligation
to use all reasonable efforts as aforesaid, but will not
obstruct this process. The Guardian will employ, re-employ,
hire or rehire as appropriate any Requested Personnel who by
the earlier of the date on which the Company vacates the
Premises or 31 August 1995 have, if they are employees of the
Company, stated in writing to the Company that they are not
willing to continue to work for the Company or, if they are
not employees of the Company, have not stated in writing to
the Company that they agree to work for the Company ("the
Rejecting Employees"). If the employment of any Requested
Personnel (other than a Rejecting Employee) terminates
subsequent to the Cut Off Date, the Company will indemnify the
Guardian Group in respect of all Termination Costs resulting
from such employment (in respect of the period from the date
of Completion) or its termination.
The "Cut-Off Date" is:
(a) in the case of employees of the Company, the earlier
of the date on which the Company vacates the Premises
or 31 August 1995 (the "Initial Date");
(b) in the case of non-employees of the Company, the date
on which the relevant person states in writing to the
Company that he or she agrees to work for the Company
or the Initial Date, whichever is the earlier.
10.
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12.4 The "Requested Personnel" are Dave Green, Denis Cassidy,
Alexis Harvey, Craig Wilkie, Ian Soffe, Michelle Long, Ola
Osomo, Matthew Gee.
13. THE MARKS
13.1 The Guardian on behalf of each member of the Guardian Group
confirms that immediately following Completion no member of
the Guardian Group will have has any interest whatsoever in
the Marks, the Eire Mark and Other Marks (if any) or any right
to use the name "Wired" except as permitted pursuant to clause
16 hereof. Terms defined in the Shareholders Agreement have
the same meanings in this Clause 13.
14. OPERATIONAL CONTROL
14.1 For the avoidance of doubt it is hereby declared that, with
effect from Completion, Wired Investments will obtain full,
immediate, exclusive and irrevocable operational control of
the Company which shall be entitled to do business with Wired
Ventures and its related entities as it wishes. The Guardian
will (and will procure that the other members of the Guardian
Group will) promptly pass on to the Company any enquiries
relating to the Company or its business. The Guardian will not
(and will procure that its employees and officers and those of
the other members of the Guardian Group will not) misrepresent
its association with the Company. The Company and Wired
Ventures will not (and will procure that their employees and
officers will not) misrepresent their association with the
Guardian Group.
15. CONFIDENTIALITY
15.1 Following the execution of this Agreement each of the parties
shall:
15.1.1 keep the Relevant Confidential Information confidential;
15.1.2 not disclose the Relevant Confidential Information to any
other person other than with the prior written consent of the
Guardian (in the case of proposed disclosure by the Company,
Wired Investments, Wired Ventures and Wired New York) or of
Wired Ventures (in the case of proposed disclosure by members
of the Guardian Group):
15.1.3 not use the Relevant Confidential Information for any purpose.
15.2 The obligations contained in Clause 15.1 shall not apply to
any Relevant Confidential Information which:
11.
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15.2.1 at the date of this Agreement or at any time after the date of
this Agreement comes into the public domain other than through
breach of this Agreement by the Receiving Party:
15.2.2 can be shown by the Receiving Party to the reasonable
satisfaction of the Disclosing Party to have been known to the
Receiving Party prior to it being disclosed by the Disclosing
Party to the Receiving Party; or
15.2.3 subsequently comes lawfully into the possession of the
Receiving Party from a third party.
15.3 Disclosure of any Relevant Confidential Information to any
professional adviser is permitted for the purpose of advising
the Receiving Party on terms that this clause 15 shall apply
to any use or disclosure by the professional adviser.
15.4 For the purposes of this clause:
(i) "Relevant Confidential Information" in relation to
the obligation of the Guardian Group under this
clause 15 means all information not at present in the
public domain used in or otherwise relating to the
business or customers or financial or other affairs
of the Company, Wired Investments, Wired Ventures,
and/or Wired New York including, without limitation,
the Wired Balance Sheet and all information relating
to the structure of the "Wired" group.
(ii) "Relevant Confidential Information" in relation to
the obligations of the Company, Wired Investments,
Wired Ventures and Wired New York under this clause
15 or clause 17 means all information not at present
in the public domain used in or otherwise relating to
the business or customers or financial or other
affairs of the Guardian Group.
(iii) The "Receiving Party" is the party under the
obligation and the "Disclosing Party" is the party
having the benefit of the obligation.
For the purposes of this clause 15 and clause 16,
there shall be deemed to be two parties one party
shall consist of members of the Guardian Group; the
other shall consist of the Company, Wired
Investments, Wired Ventures and Wired New York.
16. ANNOUNCEMENTS
16.1 Subject to clause 16.2, neither party may make or send a
public announcement, statement, communication or circular
concerning the transactions referred to in this Agreement, the
Joint Venture, the termination of the Joint Venture or any
litigation or threatened litigation in relation thereto unless
it has first obtained the
12.
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other party's written consent, which may not be unreasonably
withheld or delayed.
16.2 Clause 16.1 does not apply to a public announcement,
statement, communication or circular:-
(a) if it is required by law or applicable regulation
provided that the party required to make or send it
will, if practicable, first consult and take into
account the reasonable requirements of the other
party; or
(b) if it is consistent with the facts and phrasing in
the announcement or the questions and answers each in
the agreed form.
17. FURTHER ASSURANCE
17.1 Each party shall (at its cost) do and execute, or arrange for
the doing and executing of, each necessary act, document and
thing reasonably within its power to implement this Agreement.
17.2 The Guardian shall procure that each member of the Guardian
Group :-
(a) promptly provides to the Company on request all
information it has regarding the business and/or
finances of the Company; and
(b) promptly delivers to the Company all documents,
records or other assets belonging to the Company
including without limitation personnel records,
contracts, editorial information, accounting records,
original art acquired by the Company in print or
electronic form and correspondence in relation to
copyrights and trademarks.
17.3 The Company will promptly provide to the Guardian all
information it has which the Guardian reasonably requires to
comply with the Guardian's legal and regulatory obligations
(including without limitation in respect of tax and accounting
matters) and any information it requires to perform its
obligations under clause 12 of this Agreement.
17.4 In particular, without limiting the provisions of clauses 17.1
and 17.2 above, the Guardian will procure that the relevant
members of the Guardian Group make available to the Company
free of charge on request by the Company:
(a) access to any of the Company's existing accounting
systems for the period during which the Company
continues to occupy the Premises including detailed
trial balances and all transactions records for each
account;
13.
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(b) the complete database in relation to advertising
contacts and contracts of the Company;
(c) full details of subscribers in relation to Wired
magazine (UK edition) including all correspondence
and current addresses;
(d) copies of all electronic files of the Company to the
extent known and identified in the future;
and the Guardian will procure that all editorial information
in respect of the Company in the possession of the Guardian is
made available to the Company in its current form and will use
all reasonable efforts to procure that all information
currently (or during the week leading up to Completion) on
computers used by the Company remains on such computers and
available to the Company (other than Relevant Confidential
Information relating to the Guardian Group or personal
information belonging to employees and not to the Company or
relating to its business).
18. GENERAL
18.1 This Agreement and any document referred to in this Agreement
constitute the entire agreement, and supersede any previous
agreements between the parties relating to the subject matter
of this Agreement. No party hereto has relied upon any
representation, warranty or covenant in entering into this
Agreement save as expressly set out herein or in the Loan Note
or in the Guarantee.
18.2 A variation of this Agreement is valid only if it is in
writing and signed by or on behalf of each party.
18.3 Except to the extent that they have been performed the
covenants and obligations contained in this Agreement remain
in force after Completion.
18.4 A party may not assign or transfer or purport to assign or
transfer a right or obligation under this Agreement without
having first obtained the other relevant parties' written
consent, which may not be unreasonably withheld or delayed.
18.5 The parties hereby waive all pre-emption rights in relation to
the Share Transfers whether arising out of the Articles of
Association of the Company, the Shareholders Agreement or
otherwise.
18.6 Except where this Agreement provides otherwise. each party
shall pay its own costs relating to the negotiation,
preparation, execution and performance by it of this Agreement
and of each document referred to in it.
14.
<PAGE> 15
18.7 The Guardian covenants to Wired Investments and the Company
that:
(a) Since its incorporation, Wired Limited has not traded
or incurred any liability or entered into any
contract, arrangement or commitment and no
shareholders or directors resolutions have been
passed other than as set out in Appendix 18.7.
(b) The issued share capital of Wired Limited is
(pound sterling)2, comprising 2 Ordinary Shares of
(pound sterling)1 registered in the name of and
beneficially owned by the Company free from any
Encumbrance.
(c) The particulars of the directors, secretary and
registered office of Wired Limited in Appendix 18.7
are true, complete and accurate.
18.8.1 The Guardian shall be under no liability whatsoever in respect
of any breach or non-fulfillment of any of the Guardian
Covenants unless one or both of the Purchasers has served on
the Guardian a written notice on or before the date being one
year from the date hereof giving reasonable details of the
breach or non-fulfillment including if practicable an estimate
of the amount of the liability of the Guardian in respect
thereof and has issued and served proceedings in respect of
each such breach or non-fulfillment within six months of the
date of such written notice.
18.8.2 The Guardian shall not be liable in respect of any individual
claim for breach of the Guardian Covenants unless such claim
individually exceeds (pound sterling)100.
18.8.3 The Guardian shall not be liable in respect of a breach of a
Guardian Covenant unless and until the amount that would
otherwise be recoverable from the Guardian (but for this
paragraph 18.8.3) in respect of that breach, when aggregated
with any other amount or amounts recoverable in respect of
other breach of a Guardian Covenant, exceeds (pound sterling)
25,000 in which event the Guardian will be liable for the
excess over (pound sterling)12.500.
18.8.4 The aggregate amount of the liability of the Guardian in
respect of any breach or breaches of the Guardian Covenants
shall be limited to and in no event exceed (pound sterling)
100,000.
18.8.5 The Guardian shall have no liability in respect of breach of
any Guardian Covenant to the extent that such breach arises
from an Excluded Matter.
18.9 Wired Ventures covenants to the Guardian that:
(a) the Wired Balance Sheet shows a reasonable view of
the assets and liabilities of Wired Ventures as at 31
December 1994 and of the deficit of Wired Ventures
for the period ended on that date;
15.
<PAGE> 16
(b) since 31 December 1994 the business of Wired Ventures
has been carried on in the ordinary and usual course
without interruption, in the same manner as before
and so as to maintain the business of Wired Ventures
as a going concern;
(c) since 31 December 1994 there has been no material
adverse change in the financial or trading position
of Wired Ventures;
(d) since 31 December 1994 there has been no material
change in the assets and liabilities shown in the
Wired Balance Sheet other than in the normal course
of business and its projections of growth:
(e) the Wired Corporate Structure is true and accurate
and fairly reflects the relevant group structure:
(f) there are no Excluded Matters.
18.10.1 Wired Ventures shall be under no liability whatsoever in
respect of any breach or non-fulfillment of any of the Wired
Covenants unless a member of the Guardian Group has served on
Wired Ventures a written notice on or before the date being
one year from the date hereof giving reasonable details of the
breach or non-fulfillment including if practicable an estimate
of the mount of the liability of Wired Ventures in respect
thereof and has issued and served proceedings in respect of
each such breach or non-fulfillment within six months of the
date of such written notice.
18.10.2 Wired Ventures shall not be liable in respect of any
individual claim for breach of the Wired Covenants unless such
claim individually exceeds (pound sterling)100.
18.10.3 Wired Ventures is not liable in respect of a breach of a Wired
Covenant unless and until the mount that would otherwise be
recoverable from Wired Ventures (but for this paragraph
18.10.3) in respect of that breach, when aggregated with any
other amount or amounts recoverable in respect of other
breaches of a Wired Covenant, exceeds (pound sterling)25.000
in which event Wired Ventures will be liable for the excess
over (pound sterling)12,500.
18.10.4 The aggregate amount of the liability of Wired Ventures in
respect of any breach or breaches of the Wired Covenants shall
be limited to and in no event exceed (pound sterling)100,000.
18.11 Wired Ventures will procure that the registered offices of the
Company and of Wired Limited are changed from 119 Farringdon
Road and 12 Masons Avenue respectively not later than the
earlier of the expiry of two months from the date hereof or
the date on which the Company moves from the Premises.
16.
<PAGE> 17
18.12.1 It is the intention of Wired Ventures to create other editions
of Wired Magazine in Continental Europe and to raise capital
to do so, and to encourage the participation of the Guardian
in such business ventures.
18.12.2 In the event that Wired Ventures establishes (an
"Establishment") a material publishing interest in Continental
Europe with local partners of the relevant country in Wired
Magazine through any entity other than an entity incorporated
or resident in the United States of America ("Wired Europe"),
then Wired Ventures will promptly notify the Guardian, and
Wired Ventures will seek an investment from the Guardian in
Wired Europe on terms and in an amount acceptable to Wired
Ventures. Wired Europe shall not offer an investment
opportunity to a UK newspaper publisher without offering the
Guardian the opportunity to invest on the same terms. If any
investment of the type described in this clause 18.12.2 is
made, the aggregate amount of all such Investment will not
exceed(pound sterling)l,000,000 (unless the Guardian and
Wired Ventures agree otherwise).
18.12.3 In the event that Wired Ventures makes an Offer the Guardian
may accept the Offer in full within 30 days of receipt
thereof, failing which the Offer will be deemed rejected.
18.12.4 The provisions of this clause 18.12 shall have effect from
Completion and shall terminate upon the earlier of 22 July
1998 and retirement of the Loan Note.
18.13 Wired Ventures agrees to indemnify Guardian Investments
against any costs or liabilities including by way of taxation,
wherever arising) Guardian Investments or any other member of
the Guardian Group may incur as a result of it being the
Company, rather than Wired Investments which acquires the
Company Share from Guardian Investments. (The "Company Share"
is the one Share acquired by the Company from Guardian
Investments under the Agreement).
18.14 The Company and Wired Investments agree that, should any
member of the Guardian Group be able and wish in the future to
submit a claim for group relief in respect of Guardian
Investments' 50% investment in the Company (a "Claim"), the
Company and Wired Investments will give all necessary
co-operation to such member by way of provision of relevant
information and signing of any requisite consent in respect of
any such Claim in respect of the 50% investment Provided that:
(a) the Guardian will procure that the relevant member of
the Guardian Group withdraws any Claim to the extent
that it has not been unconditionally greed by the
Inland Revenue by 31 December 1996 and that the
members of the Guardian Group will not make any
Claims after that date:
(b) the Guardian will promptly pay in cash to the Company
80% of the amount of any successful Claim net of
reasonable third party expenses
17.
<PAGE> 18
(whether the benefit of the Claim is provided to the
Guardian in cash or by tax credit or otherwise).
19. DEFINITIONS
19.1 In the letter of agreement:-
"AGREED FORM" means in the form initialled on behalf of Wired
Investments and the Guardian;
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, option,
restriction, right of first refusal. right of pre-emption (other than
as contained in the articles of association of the Company or the
Shareholders Agreement), third-party right or interest, other
encumbrance or security interest of any kind, or another type of
preferential arrangement (including, without limitation, a title
transfer and retention arrangement) having similar effect;
an "EXCLUDED MATTER" is any liability incurred by Louis Rossetto, Jane
Metcalfe, Ian Stewart or John Plunkett or any other Wired US Person on
behalf of the Company without the knowledge of either the Guardian or
Guardian Investments;
"GUARANTEE" means the guarantee in the agreed form to be given by Wired
Ventures in favor of the Guardian;
the "GUARDIAN COVENANTS" means the covenants in clauses 4.1, 9, 10.1,
11, 12.1 and 18.7.
the "GUARDIAN GROUP" means the Guardian and its group undertakings from
time to time (as defined by section 259 of the Companies Act 1985)
excluding for the avoidance of doubt the Company and Wired Limited;
"INVESTORS OFFER" means an offer to local partners of the relevant
country in Wired Europe in relation to the same Establishment as the
relevant Offer which is accepted by some or all of the proposed local
partners;
"LETTER OF OPINION" means the letter of opinion to the Guardian in the
agreed form to be given by Cooley Godward;
"JOINT VENTURE" means the transactions contemplated by the Shareholders
Agreement;
"LOAN NOTE" means the (pound sterling)1,000,000 loan note to be
issued by the Company in favor of the Guardian in the agreed form;
"NON PARI PASSU OFFER" means an Offer other than a Pari Passu Offer;
18.
<PAGE> 19
"OFFER" means an offer to the Guardian to purchase securities in
relation to an Establishment;
"PARI PASSU OFFER" means an Offer on terms which are pari passu in all
material respects with an Investors Offer. For the avoidance of doubt,
if different Investors Offers are made to local partners of the
relevant country in relation to the same Establishment, "pari passu"
for these purposes means pari passu with the most favorable such
Investors Offer or, if there are acceptances of relevant Investors
Offers in different amounts, pari passu with the Investors Offer the
accepted amount of which is closest to the amount in respect of which
the Offer is accepted unless the closest amount is less than
(pound sterling)200.000 in which case it means pari passu with the
closest amount above the amount in respect of which the Offer is
accepted;
"PURCHASERS" means Wired Investments, Wired New York and the Company;
"SHARES" means the 50 "A" shares in the Company registered in the name
of Guardian Investments;
"WIRED BALANCE SHEET" means the balance sheet of Wired Ventures, notes
in respect thereof and auditors report in respect thereof in the agreed
form;
"WIRED CORPORATE STRUCTURE" means the structure chart in the agreed
form;
the "WIRED COVENANTS" means the covenants in clause 18.9;
"WIRED US PERSON" means any person who at the relevant time was an
employee or officer of Wired Holdings, Inc., Wired USA Ltd., Wired
Ventures, HotWired L.L.C., Wired New York or Wired Investments or any
person acting on their instructions.
20. NOTICES
20.1 A notice under or in connection with this Agreement shall be
in writing and shall be delivered personally of sent by fax or
courier service to the party due to receive the notice, at its
address set out in this Agreement or another address specified
by that party by written notice to the others.
20.2 In the absence of evidence of earlier receipt, a notice or
other communication is deemed given:
20.2.1 if delivered personally, when left at the address referred to
below;
20.2.2 if sent by courier service, two days after dispatch;
20.2.3 if sent by fax, at 9.30 am (local time of the recipient) on
the next business day (in the location of the recipient)
following completion of its transmission.
19.
<PAGE> 20
21. GOVERNING LAW, JURISDICTION
21.1 This Agreement is governed by, and shall be construed in
accordance with, English law.
21.2 The parties irrevocably submit to the non-exclusive
jurisdiction of the courts of England to hear and decide any
suit, action or proceedings, and to settle any disputes, which
may arise out of or in connection with this Agreement
(respectively, "Proceedings" and "Disputes").
21.3 Process by which any Proceedings are begun in England may be
served on Wired Ventures, Wired Investments and/or Wired New
York by being delivered to the Company at the Premises while
the Company is still in occupation of the Premises and
thereafter at the registered office of the Company from time
to time in each case marked for the attention of the chief
executive in accordance with clause 20. Nothing contained in
this clause 21.3 affects the right to serve process in another
manner permitted by law.
22. COUNTERPARTS
22.1 This Agreement may be executed in any number of counterparts
each of which when executed and delivered is an original, but
all the counterparts together constitute the same document.
/s/ JIM MARKWICK /s/ JANE METCALFE
GUARDIAN MEDIA GROUP PLC WIRED VENTURES, LTD.
(registered no. 00094531) ("Wired Ventures")
("the Guardian") a California limited partnership
164 Deansgate 520 Third Street
Manchester San Francisco
M60 2RR California
England USA
94107-1427
fax: 0161 832 0155
fax: 415 222 6229
by Wired Holdings. Inc.
its general partner
20.
<PAGE> 21
/s/ PAUL J NAISMITH /s/ JANE METCALFE
Karadean Limited Wired World L.L.C.
(registered no. 2922019) ("Wired Investments")
("Guardian Investments") a Delaware limited liability
164 Deansgate company
Manchester 520 Third Street
M60 2RR San Francisco
England California, USA
94107
fax: 0161 832 0155 fax: 415 222 6229
/s/ PAUL J NAISMITH /s/ JANE METCALFE,
/s/ PAUL NAISMITH
Guardian Magazines Limited Executed as a Deed by Wired UK
(registered no. 02830739) (registered no. 2972399)
("GML") (the "Company")
164 Deansgate 520 Third Street
Manchester San Francisco
M60 2RR California, USA
England 94107
fax: 0171 837 0651 fax: 415 222 6229
/s/ PAUL J NAISMITH /s/ JANE METCALFE
Guardian Newspapers Limited Wired New York
(registered no. 00908396) ("Wired New York")
("GNL") 520 Third Street
164 Deansgate San Francisco
Manchester California, USA
M60 2RR 94107
England
fax: 0171 837 0651 fax: 415 222 6229
21.
<PAGE> 22
CONFORMED COPY
WIRED UK
(Incorporated in England with unlimited liability
registered number 2972399)
Issue Date: 22 July 1995 Issue Price: Tranche A:(pound sterling)350,000
Repayment Date: 22 July 1998 Tranche B:(pound sterling)650.000
Total (pound sterling)1,000,000
1. For value received, Wired UK ("THE COMPANY") promises to pay Guardian
Media Group plc (registered number 00094531) ("THE NOTEHOLDER") the sum
of one million pounds sterling ((pound sterling)1,000,000) in
accordance with this Loan Note. This Loan Note is issued in two
tranches - Tranche A in the sum of (pound sterling)350,000 and
Tranche B in the sum of (pound sterling)650,000, totaling (pound
sterling)1,000,000. Both Tranche A and Tranche B rank pari passu
in all respects and all rights or obligations in respect of this Loan
Note will apply pro rata to the two tranches.
2.1 If any Principal Sum, is outstanding on the Repayment Date, the Company
shall repay the Principal Sum on the Repayment Date, but no interest
shall be payable.
2.2 (a) In the event that the Company fails to publish a separate
September 1995 edition of the UK edition of Wired magazine
("the UK Magazine") by 8 September 1995, then the Company will
within 5 business days of such date repay (pound sterling)
300,000 of the Principal Sum (without interest) and
paragraphs (b) and (c) of this Clause 2.2 will not apply.
(b) In the event that the Company fails to publish a separate
October 1995 edition of the UK Magazine by 1 October 1995, the
Company will within 5 business days of such date repay
(pound sterling)200,000 of the Principal Sum (without
interest) and paragraph (c) of this Clause 2.2 will not apply.
(c) In the event that the Company fails to publish a separate
November 1995 edition of the UK Magazine by 1 November 1995,
the Company will within 5 business days of such date repay
(pound sterling)100,000 of the Principal Sum (without
interest).
2.3 The Company shall promptly repay the Principal Sum (without interest)
in the event that the affairs of Wired Ventures are no longer conducted
in accordance with the wishes of one or both of Jane Metcalfe or Louis
Rossetto (each being an "Equity Partner"); or that the right to receive
more than one half of the assets or one half of the income (rather than
losses) of Wired Ventures vests in a person who is not an Equity
Partner in Wired Ventures other than:
(a) a company or other legal entity owned or controlled by one or
both of Jane Metcalfe or Louis Rossetto; or
1.
<PAGE> 23
(b) a trust of which Jane Metcalfe or Louis Rossetto is or may be
within the contemplated class of beneficiaries or is the
settlor.
2.4 In the event that, prior to the Repayment Date, the Noteholder
purchases securities of Wired Europe (as defined in the letter of
agreement described in clause 4 hereof) the Company shall
simultaneously repay (without interest) the Principal Sum or such
lesser amount as may equal the amount of such investment. The parties
acknowledge that the Company will not be a party to or a participant in
the negotiations regarding any such transaction.
2.5 In the event that, prior to the Repayment Date, Wired Ventures makes a
Pari Passu Offer (as defined in the letter of agreement described in
clause 4 hereof) which is rejected, the Company shall promptly repay
the Principal Sum or such lesser amount as may equal the amount of
investment offered pursuant to such Pari Passu Offer, together with
interest payable in accordance with clause 2.7 hereof.. The parties
acknowledge that any decision whether to make a Pari Passu Offer will
be made by Wired Ventures in its sole discretion, and the Company will
not participate in any way in any such decision.
2.6 In the event that, prior to the Repayment Date, Wired Ventures makes a
Non Pari Passu Offer (as defined in the letter of agreement described
in clause 4 hereof) which is rejected, the Company shall promptly repay
the Principal Sum or such lesser amount as may equal the amount of
investment offered pursuant to such Non Pari Passu Offer, together with
interest payable in accordance with clause 2.7 hereof unless the
Noteholder elects not to accept prepayment by notice in writing within
30 days of receipt of the Non Pari Passu Offer. The parties acknowledge
that any decision whether to make a Non Pari Passu Offer will be made
by Wired Ventures in its sole discretion, and the Company will not
participate in any way in any such decision.
2.7 Interest payable under clauses 2.5 or 2.6 hereof shall accrue from (and
including) the Issue Date to (and excluding) the date of repayment at
the rate of 5% per annum (compounded with annual rests on each
anniversary of the Issue Date) and shall be payable after deduction of
tax (if applicable).
2.8 The "Principal Sum" means the principal amount (if any) owing from time
to time under this Loan Note.
3.1 Wired Ventures irrevocably and unconditionally guarantees to the
Noteholder the due and punctual payment by the Company of all principal
and interest payable in respect of this Loan Note. If at any time the
Company has failed to pay any sum due to the Noteholder in respect of
the Loan Note, Wired Ventures shall pay such sum to the Noteholder on
demand. Wired Venture's obligations under this clause 3.1 are primary
obligations and not those of a surety. If an obligation of the Company
is void, voidable or unenforceable for any reason, Wired Ventures'
obligations under this clause 3.1 are unaffected and Wired Ventures
shall perform the obligations of the Company as if it were primarily
liable for such performance.
2.
<PAGE> 24
3.2 Wired Ventures' obligations under clause 3. l hereof are continuing
obligations and are not satisfied, discharged or affected by an
intermediate partial payment or settlement of account by or a change in
the constitution or control of, or the insolvency of, or bankruptcy,
winding up or analogous proceedings relating to, the Company.
3.3 The liability of Wired Ventures under clause 3.1 hereof is not affected
by an arrangement which the Noteholder may make with the Company or
with another person which (but for this clause 3.3) might operate to
diminish or discharge the liability of or otherwise provide a defence
to a surety.
3.4 The Noteholder may at any time as it thinks fit without reference to
Wired Ventures grant a later time for payment or grant another
indulgence or agree to an amendment, variation, waiver or release in
respect of an obligation of the Company under this Loan Note but
nothing in this clause 3.4 affects the liability of Wired Ventures
under clause 3.1 hereof which shall still pay in full.
3.5 So long as the Company remains under an actual or contingent obligation
to pay any principal or interest in respect of the Loan Note, Wired
Ventures shall not exercise a right which it may at any time have by
reason of the performance of its obligations under clause 3.1 to be
indemnified by the Company, or to take the benefit (in whole or in part
and by way of subrogation or otherwise) of any of the Noteholder's
rights under this Loan Note or in respect of the Loan Note.
3.6 The liability of Wired Ventures under clause 3.1 is not affected by the
avoidance of any assurance or payment or any release, settlement or
discharge which is given or made on the faith of any assurance or
payment, in either case under an enactment relating to bankruptcy or
insolvency of the Company or Wired Ventures.
3.7 The guarantee in this clause 3 operates in addition to the guaranty
being given on today's date by Wired Ventures to the Noteholder in a
document governed by the laws of the State of California Provided
Always that the Noteholder may not recover twice in respect of the same
liability nor shall Wired Ventures be obliged to pay in total more than
the amount of all principal and interest payable in respect of this
Loan Note.
4. The provisions of clauses 16, 18.2, 20, 21 and 22 of the letter of
agreement of today's date between the Company, Wired Ventures, the
Noteholder, Wired World L.L.C., Wired New York Ltd., Karadean Limited,
Guardian Magazines Limited and Guardian Newspapers Limited apply to
this Loan Note mutatis mutandis.
5. "Wired Ventures" means Wired Ventures Ltd, a California limited
partnership.
6. Neither the Company nor Wired Ventures shall have any right to set off
any liability or debt owed or alleged to be owed to either of them by
the Noteholder against any liability to the Noteholder under this Loan
Note.
3.
<PAGE> 25
7. If the Company defaults in the payment of any sum due and payable under
this Loan Note on the due date, the Company shall pay default interest
on such sum (or, as the case may be, the amount thereof for the time
being due and unpaid) to the Noteholder from the due date to (and
including) the date of actual payment calculated at the rate per annum
being the aggregate of 10% per annum and the base rate of National
Westminster Bank plc from time to time. Such default interest will be
paid after deduction of tax (if applicable).
8.1 The benefit of this Loan Note may be assigned from time to time to any
member of the Guardian Group Provided that if a Noteholder ceases to be
a member of the Guardian Group it shall promptly assign the benefit of
this Loan Note to an entity which is a member of the Guardian Group
pending which the rights of the Noteholder hereunder (other than this
right of assignment) shall be suspended. For the avoidance of doubt,
the `Noteholder' is deemed to mean the lawful holder of this Loan Note
from time to time.
8.2 Subject as provided in clause 8.l hereof, a party may not assign or
transfer or purport to assign or transfer a right or obligation under
this Loan Note without first having obtained the consent of the other
parties hereto, such consent not to be unreasonably withheld or
delayed.
Executed as a deed and delivered by the Company, Wired Ventures and the
Noteholder on the Issue Date.
4.
<PAGE> 26
Executed as a deed by )
WIRED UK )
/s/ JANE METCALFE Signature
JANE METCALFE Name of director
/s/ PAUL NAISMITH Signature of director
PAUL NAISMITH Name of director/secretary
Executed as a deed by )
WIRED VENTURES, LTD by )
WIRED HOLDINGS, INC. its )
general partner )
/s/ JANE METCALFE Signature
JANE METCALFE Name
Signed for and on behalf of )
GUARDIAN MEDIA GROUP PLC )
/s/ JIM MARKWICK Signature
JAMES MARKWICK Name of director
5.
<PAGE> 27
GUARANTY
This continuing GUARANTY ("Guaranty") is entered into as of July 22,
1995, by WIRED VENTURES, LTD., a California limited partnership ("Guarantor"),
in favor of GUARDIAN MEDIA GROUP PLC, an English company ("Note Holder").
RECITALS
A. Concurrently herewith, Note Holder, Guarantor and WIRED UK,
incorporated under the laws of England with unlimited liability ("Borrower"),
are entering into that certain Loan Note dated July 22, 1995, (the "Loan Note"),
pursuant to which Note Holder has agreed to extend certain financial
accommodations to Borrower, subject to the terms and conditions set forth
therein and that certain Letter of Agreement dated July 22, 1995 by and among
Guarantor, Note Holder, Borrower, Guardian Magazines Limited, Karadean Limited,
Guardian Newspapers Limited, Wired World L.L.C. and Wired New York (the "Letter
Agreement").
B. In consideration of the agreement of Note Holder to enter into the
Loan Note and provide the financial accommodations thereunder, Guarantor is
willing to guarantee the full payment and performance by Borrower of all of its
obligations thereunder, all as further set forth herein.
C. Guarantor is or will be, whether directly or through one or more
intermediary companies, the parent company of Borrower.
D. Guarantor will obtain substantial direct and indirect benefit from
the Loan Note.
AGREEMENT
NOW, THEREFORE, in order to induce Note Holder to execute the Loan
Note, and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound, Guarantor
hereby represents, warrants, covenants and agrees as follows:
SECTION 1. DEFINITIONS. All capitalized terms used but not defined
herein shall have the meanings given to them in the Loan Note.
SECTION 2. GUARANTY.
2.1 UNCONDITIONAL GUARANTEE OF PAYMENT. In consideration of
the foregoing, Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Note Holder the prompt and complete payment when due (whether at
stated maturity, by acceleration or otherwise) of all indebtedness of Borrower
to Note Holder created under the Loan Note (all such indebtedness being the
"Liabilities"), together with the prompt payment of all expenses,
1.
<PAGE> 28
including, without limitation, reasonable attorneys' fees, and costs incurred by
Note Holder incidental to the collection of the Liabilities. The term
"indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities heretofore, now or
hereafter made, incurred or created, whether voluntary or involuntary and
whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, and whether recovery upon such indebtedness may be
or hereafter become unenforceable. (The Liabilities and all other obligations
and covenants to be performed by Guarantor under this Guaranty shall hereinafter
be collectively referred to as the "Guaranty Obligations.")
2.2 EXPENSES. Guarantor agrees to pay all expenses, including,
without limitation, reasonable attorneys' fees, and costs incurred by Note
Holder in connection with the enforcement of Note Holder's rights under this
Guaranty.
2.3 JOINT AND SEVERAL LIABILITY. If any other person in
addition to Guarantor shall guarantee the payment of all or any part of the
Liabilities, all guarantors and their respective successors and assigns shall be
jointly and severally bound by the terms of this Guaranty and any other guaranty
of the Liabilities, notwithstanding any relationship or contract of
co-obligation by or among such guarantors. Note Holder's enforcement of the
Guaranty Obligations is not conditioned upon Note Holder's obtaining from any
other person a guaranty of all or any part of the Liabilities.
SECTION 3. PAYMENTS. All payments to be made by Guarantor to Note
Holder hereunder shall be made in lawful money of England, in immediately
available funds, addressed to Note Holder at 164 Deansgate, Manchester, M60 2RR
England (or such other address as Note Holder may hereafter specify to the
Guarantor), on the date due, and shall be accompanied by a notice from Guarantor
stating that such payments are made under this Guaranty.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Guarantor hereby represents and warrants to Note Holder that:
(a) Guarantor (i) is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of California;
(ii) is duly qualified to do business and is in good standing in every
jurisdiction where the nature of its business requires it to be so qualified
(except where the failure to so qualify would not have a material adverse effect
on the Guarantor's condition, financial or otherwise, or on Guarantor's ability
to pay or perform the Guaranty Obligations); and (iii) has all requisite power
and authority to execute and deliver this Guaranty and each other document
executed and delivered by Guarantor pursuant to the Loan Note or this Guaranty
and to perform its obligations thereunder and hereunder.
(b) The execution, delivery and performance by Guarantor of
this Guaranty (i) are within Guarantor's powers and have been duly authorized by
all necessary action; (ii) do not contravene Guarantor's partnership agreement
or any law or any contractual restriction
2.
<PAGE> 29
binding on or affecting Guarantor or by which Guarantor's property may be
affected; (iii) do not require any authorization or approval or other action by,
or any notice to or filing with, any governmental authority or any other person
under any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Guarantor is a party or by which Guarantor or any of its
property is bound except such as have been obtained or made; and (iv) do not,
except as contemplated by the Loan Note or this Guaranty, result in the
imposition or creation of any lien upon the property of Guarantor.
(c) This Guaranty constitutes the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, except as the enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws relating to or affecting the rights of creditors generally.
(d) There is no action, suit or proceeding affecting Guarantor
pending or threatened before any court, arbitrator, or governmental authority,
domestic or foreign, which may have a material adverse effect on the ability of
Guarantor to perform its obligations under this Guaranty.
(e) The Guaranty Obligations are not subject to any offset or
defense against Note Holder or Borrower of any kind.
(f) The incurrence of the Guarantor's obligations under this
Guaranty will not cause the Guarantor to (i) become insolvent; (ii) be left with
unreasonably small capital for any business or transaction in which Guarantor is
presently engaged or plans to be engaged; or (iii) be unable to pay its debts as
such debts mature.
(g) Guarantor covenants, warrants, and represents to Note
Holder that all representations and warranties contained in this Guaranty shall
be true at the time of Guarantor's execution of this Guaranty, and shall
continue to be true until the Guaranty Obligations have been paid and performed
in full. Guarantor expressly agrees that any misrepresentation or breach of any
warranty whatsoever contained in this Guaranty shall be deemed material.
SECTION 5. ABSOLUTE GUARANTY. Guarantor agrees that the liability
hereunder shall be the immediate, direct, and primary obligation of Guarantor
and shall not be contingent upon Note Holder's exercise or enforcement of any
remedy it may have against Borrower or any other person or against any security
for the Guaranty Obligations. Without limiting the generality of the foregoing,
the Guaranty Obligations shall remain in full force and effect without regard to
and shall not be impaired or affected by, nor shall Guarantor be exonerated or
discharged by, any of the following events:
(a) Insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition, assignment for the benefit of creditors, death,
liquidation, winding up or dissolution of Borrower, Guarantor or any other
guarantor of the Liabilities;
3.
<PAGE> 30
(b) Any limitation, discharge, or cessation of the liability
of Borrower, Guarantor or any other guarantor for the Liabilities due to any
statute, regulation or rule of law, or any invalidity or unenforceability in
whole or in part of the documents evidencing the Liabilities or any other
guaranty of the Liabilities;
(c) Any merger, acquisition, consolidation or change in
structure of Borrower, Guarantor or any other guarantor of the Liabilities or
any sale, lease, transfer or other disposition of any or all of the assets or
shares of Borrower, Guarantor or any other guarantor of the Liabilities;
(d) Any assignment or other transfer, in whole or in part, of
Note Holder's interests in and rights under this Guaranty or the Loan Note,
including, without limitation, Note Holder's right to receive payment of the
Liabilities or the Guaranty Obligations, as the case may be;
(e) Any claim, defense, counterclaim or setoff, other than
that of prior performance, that Borrower, Guarantor or any other guarantor of
the Liabilities may have or assert, including, but not limited to, any defense
of incapacity or lack of corporate or other authority to execute any documents
relating to the Liabilities, the Guaranty Obligations or any collateral securing
the Guaranty Obligations;
(f) Note Holder's amendment, modification, renewal, extension,
cancellation or surrender of any agreement, document or instrument relating to
the Loan Note, the Liabilities or the Guaranty Obligations;
(g) Note Holder's exercise or nonexercise of any power, right
or remedy with respect to the Liabilities, the Guaranty Obligations, including,
but not limited to, Note Holder's compromise, release, settlement or waiver with
or of Borrower, Guarantor or any other person;
(h) Note Holder's vote, claim, distribution, election,
acceptance, action or inaction in any bankruptcy case related to the Liabilities
or the Guaranty Obligations; and
(i) Any impairment or invalidity of any collateral or any
collateral securing the Guaranty Obligations or any failure to perfect any of
Note Holder's Liens thereon or therein.
SECTION 6. DUE DILIGENCE. Guarantor acknowledges that it has,
independently of and without reliance on Note Holder, made its own credit
analysis of Borrower, performed its own legal review of this Guaranty, the Loan
Note and all related documents and is not relying on Note Holder with respect to
any of the aforesaid items. Guarantor has established adequate means of
obtaining from Borrower on a continuing basis financial and other information
pertaining to Borrower's financial condition. Guarantor agrees to keep
adequately informed from such means of any facts, events or circumstances which
might in any way affect Guarantor's risks hereunder, and Guarantor further
agrees that Note Holder shall have no
4.
<PAGE> 31
obligation to disclose to Guarantor information or material with respect to
Borrower acquired in the course of Note Holder's relationship with Borrower.
SECTION 7. TOLLING OF STATUTE OF LIMITATIONS. Guarantor agrees that any
payment or performance of any of the Liabilities or other acts which tolls any
statute of limitations applicable to the Liabilities shall also toll the statute
of limitations applicable to Guarantor's liability under this Guaranty.
SECTION 8. WAIVERS.
8.1 GENERAL WAIVERS. Guarantor hereby expressly waives (a)
diligence, presentment, demand for payment, protest, benefit of any statute of
limitations affecting Borrower's liability under the Loan Note or the
enforcement of this Guaranty; (b) discharge due to any disability of Borrower;
(c) any defenses of Borrower to obligations under the Loan Note not arising
under the express terms of the Loan Note or from a material breach thereof by
Note Holder which under applicable law has the effect of discharging Borrower
from the Liabilities as to which this Guaranty is sought to be enforced; (d) the
benefit of any act or omission by Note Holder which directly or indirectly
results in or aids the discharge of Borrower from any of the Liabilities by
operation of law or otherwise; (e) all notices whatsoever, including, without
limitation, notice of acceptance of this Guaranty and the incurring of the
Liabilities; and (f) any requirement that Note Holder exhaust any right, power
or remedy or proceed against Borrower or any other security for, or any other
guarantor of, or any other party liable for, any of the Liabilities, or any
portion thereof. Guarantor specifically agrees that it shall not be necessary or
required, and Guarantor shall not be entitled to require, that Note Holder (i)
file suit or proceed to assert or obtain a claim for personal judgment against
Borrower, for all or any part of the Liabilities; (ii) make any effort at
collection or enforcement of all or any part of the Liabilities from the
Borrower; (iii) foreclose against or seek to realize upon any security now or
hereafter existing for all or any part of the Liabilities; (iv) file suit or
proceed to obtain or assert a claim for personal judgment against Guarantor or
any other guarantor or other party liable for all or any part of the
Liabilities; (v) exercise or assert any other right or remedy to which Note
Holder is or may be entitled in connection with the Liabilities or any security
or guaranty relating thereto to assert; or (vi) file any claim against assets of
Borrower before or as a condition of enforcing the liability of Guarantor under
this Guaranty. Without limiting the generality of the foregoing, Guarantor
expressly waives the benefit of California Civil Code Sections 2809, 2810, 2819,
2839, 2845, 2848, 2849, 2850, 2899 and 1432.
SECTION 9. CONTINUING GUARANTY. This Guaranty shall be a continuing
guaranty and shall remain in effect until the Liabilities have been paid in
full. Any other guarantors of all or any part of the Liabilities may be released
without affecting the liability of Guarantor hereunder.
SECTION 10. REINSTATEMENT. Notwithstanding any provision of the Loan
Note to the contrary, the liability of Guarantor hereunder shall be reinstated
and revived and the rights of Note Holder shall continue if and to the extent
that for any reason any payment by or on behalf
5.
<PAGE> 32
of Borrower is rescinded or must be otherwise restored by Note Holder, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise, all
as though such amount had not been paid. The determination as to whether any
such payment must be rescinded or restored shall be made by Note Holder in its
sole discretion; provided, however, that if Note Holder chooses to contest any
such matter at the request of Guarantor, Guarantor agrees to indemnify and hold
harmless Note Holder from all costs and expenses (including, without limitation,
reasonable attorneys' fees) of such litigation. To the extent any payment is
rescinded or restored, the Liabilities shall be revived in full force and effect
without reduction or discharge for that payment.
SECTION 11. EVENTS OF DEFAULT.
11.1 EVENT OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an "Event of Default":
(a) The occurrence of a default under or as defined
in the Loan Note; or
(b) Any representation of warranty made by Guarantor
to Note Holder in this Guaranty, or in any statement, report, financial
statement or certificate delivered by Guarantor to Note Holder is not true and
correct or is misleading, in any material respect, when made or delivered; or
(c) The commencement by Guarantor of a voluntary case
under the federal bankruptcy laws, as now constituted or hereafter amended, or
any other applicable federal or state bankruptcy, insolvency or similar law; or
the consent by Guarantor to the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator, agent or other similar official for Guarantor
for any substantial part of its property; or the making by Guarantor of any
assignment for the benefit of creditors; or any case or proceeding is commenced
by Guarantor for its dissolution, liquidation or termination; or the taking of
any action by or on behalf of Guarantor in furtherance of any of the foregoing;
or
(d) The filing of a petition with a court having
jurisdiction over Guarantor to commence an involuntary case for Guarantor under
the federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or similar law; or the
appointment of a receiver, liquidator, assignee, custodian, trustee, agent,
sequestrator or other similar official for Guarantor or for any substantial part
of its property; or any substantial part of Guarantor's property is subject to
any levy, execution, attachment, garnishment or temporary protective order; or
the ordering of the dissolution, liquidation or winding up of Guarantor's
affairs and the failure to obtain the dismissal of such petition or appointment
or the continuance of such decree or order unstayed and in effect for or within
a period of sixty (60) days from the date of such filing, appointment, or entry
of such order or decree.
6.
<PAGE> 33
11.2 ACCELERATION OF THE LIABILITIES. Upon and after an Event
of Default hereunder, then all or any part of the Liabilities may, at the option
of Note Holder and without demand, notice, or legal process of any kind, be
declared, and immediately shall become, due and payable.
SECTION 12. NO WAIVER; AMENDMENTS. No failure on the part of Note
Holder to exercise, no delay in exercising and no course of dealing with respect
to, any right hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. This
Guaranty may not be amended or modified except by written agreement between
Guarantor and Note Holder, and no consent or waiver hereunder shall be valid
unless in writing and signed by Note Holder.
SECTION 13. COMPROMISE AND SETTLEMENT. No compromise, settlement,
release, renewal, extension, indulgence, change in, waiver or modification of
any of the Liabilities or the release of Guarantor or discharge of Borrower or
Guarantor from the performance of any of the Liabilities shall release or
discharge Guarantor from this Guaranty.
SECTION 14. NOTICE. Note Holder shall provide Guarantor with a copy of
any notice of default to Borrower as provided under the Loan Note; provided,
however, that the failure of Note Holder to provide such notice to Guarantor
will not exonerate Guarantor of any obligations under this Guaranty. Except as
otherwise provided herein, any notice or other communication herein required or
permitted to be given shall be in writing and may be delivered in person, with
receipt acknowledged, or sent by telex, telecopy, computer transmission or by
United States mail, registered or certified, return receipt requested, postage
prepaid and addressed as follows:
If to Guarantor: Wired Ventures, Ltd.
520 Third Street
San Francisco, California 94107-1427
USA
Attention: Jane Metcalfe
Telephone: +1 415 222 6200
Facsimile: +1 415 222 6229
with copies to: Cooley Godward Castro
Huddleson & Tatum
One Maritime Plaza, 20th Floor
San Francisco, California 94111
USA
Attention: Kenneth L. Guernsey
Telephone: +1 415 693 2000
Facsimile: +1 415 951 3699
7.
<PAGE> 34
If to Note Holder: Guardian Media Group plc
164 Deansgate
Manchester
M60 2RR
ENGLAND
Telephone: +44 161 832 7200
Facsimile: +44 161 832 0155
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, or three (3) business days after the same shall have
been deposited in the United States mail.
SECTION 15. ENTIRE AGREEMENT. This Guaranty, the Loan Note and the
Letter Agreement constitute and contain the entire agreement of the parties and
supersede any and all prior and contemporaneous agreements, negotiations,
correspondence, understandings and communications between Guarantor and Note
Holder, whether written or oral, respecting the subject matter hereof.
SECTION 16. SEVERABILITY. If any provision of this Guaranty is held to
be unenforceable under applicable law for any reason, it shall be adjusted, if
possible, rather than voided in order to achieve the intent of Guarantor and
Note Holder to the extent possible. In any event, all other provisions of this
Guaranty shall be deemed valid and enforceable to the full extent possible under
applicable law.
SECTION 17. SUBORDINATION OF INDEBTEDNESS. Any indebtedness or other
obligation of Borrower now or hereafter held by or owing to Guarantor is hereby
subordinated in time and right of payment to all obligations of Borrower to Note
Holder, except as such indebtedness or other obligation is permitted to be paid
under the Loan Note; and such indebtedness of Borrower to Guarantor is assigned
to Note Holder as security for this Guaranty, and if Note Holder so requests
shall be collected, enforced and received by Guarantor in trust for Note Holder
and to be paid over to Note Holder on account of the Liabilities of Borrower to
Note Holder, but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty. Any notes now or
hereafter evidencing such indebtedness of Borrower to Guarantor shall be marked
with a legend that the same are subject to this Guaranty and shall be delivered
to Note Holder. Guarantor shall, and Note Holder is hereby authorized to, in the
name of Guarantor from time to time, execute and file financing statements and
continuation statements and execute such other documents and take such other
action as Note Holder deem necessary or appropriate to perfect, preserve and
enforce its rights hereunder.
SECTION 18. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, Note Holder is hereby authorized at any
time and from time to time,
8.
<PAGE> 35
without notice to Guarantor (any such notice being expressly waived by
Guarantor), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other obligations at any
time owing by Note Holder or any of its affiliates to or for the credit of the
account of Guarantor against the Guaranty Obligations of Guarantor to Note
Holder now or hereafter existing irrespective of whether or not Note Holder
shall have made any demand under this Guaranty or the Loan Note and although
such obligations may be unmatured. The rights of Note Holder under this Section
18 are in addition to all other rights and remedies (including, without
limitation, other rights of set-off) which Note Holder may have. Guarantor
grants to Note Holder a security interest in any and all such deposits as
security for satisfaction of the foregoing obligations.
SECTION 19. INDEMNITY. In addition to and without limiting or impairing
in any manner whatsoever Guarantor's other obligations under this Guaranty,
Guarantor agrees to indemnify the Note Holder from and against any and all
claims, losses and liabilities growing out of or resulting from this Guaranty
(including, without limitation, enforcement of this Guaranty), except claims,
losses or liabilities resulting from such person's gross negligence or willful
misconduct.
SECTION 20. GOVERNING LAW. This Guaranty shall be binding upon and
inure to the benefit of Guarantor and Note Holder and their respective
successors and assigns, except that Guarantor shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent of
Note Holder. This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of California.
SECTION 21. WAIVER OF SPECIFIC RIGHTS. GUARANTOR HEREBY IRREVOCABLY
WAIVES AND RELEASES:
(a) ANY AND ALL RIGHTS IT MAY HAVE AT ANY TIME (WHETHER
ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR OTHERWISE) TO
REQUIRE THE MARSHALING OF ANY ASSETS OF BORROWER, WHICH RIGHT OF MARSHALING
MIGHT OTHERWISE ARISE FROM ANY SUCH PAYMENTS MADE OR OBLIGATIONS PERFORMED;
(b) ANY AND ALL RIGHTS THAT WOULD RESULT IN GUARANTOR BEING
DEEMED A "CREDITOR" UNDER THE UNITED STATES BANKRUPTCY CODE OF BORROWER OR ANY
OTHER PERSON, ON ACCOUNT OF PAYMENTS MADE OR OBLIGATIONS PERFORMED BY GUARANTOR;
AND
(c) ANY CLAIM, RIGHT OR REMEDY WHICH GUARANTOR MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST BORROWER THAT ARISES HEREUNDER AND/OR FROM THE
PERFORMANCE BY GUARANTOR HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY CLAIM,
REMEDY OR RIGHT OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION,
INDEMNIFICATION, OR PARTICIPATION IN ANY CLAIM, RIGHT OR REMEDY OF
9.
<PAGE> 36
NOTE HOLDER AGAINST BORROWER OR ANY COLLATERAL SECURITY WHICH THE NOTE HOLDER
MAY NOW HAVE OR MAY HEREAFTER ACQUIRE, WHETHER OR NOT SUCH CLAIM, RIGHT OR
REMEDY ARISES IN EQUITY, UNDER CONTRACT, BY STATUTE, UNDER COMMON LAW OR
OTHERWISE.
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of the date first written above.
GUARANTOR: WIRED VENTURES, LTD.,
a California limited partnership
By: Wired Holdings, Inc.,
its general partner
By: /s/ JANE METCALFE
-------------------------
Printed Name: Jane Metcalfe
---------------
Title: President
----------------------
Accepted and Acknowledged by:
GUARDIAN MEDIA GROUP PLC
By: /s/ JIM MARKWICK
-----------------------------
Printed Name: Jim Markwick
-------------------
Title: Director
--------------------------
10.