EXHIBIT 99.8
NON-SOLICITATION AGREEMENT
THIS dated August 3, 2000.
BETWEEN:
ICAST CORPORATION
("iCast")
AND:
GLOBALMEDIA.COM
("Global")
A. Global and Magnitude Network, Inc. ("Magnitude") have entered into an
asset purchase agreement of even date herewith (the "Asset Purchase Agreement"),
wherein Magnitude sold to Global certain of Magnitude's assets comprising
substantially all of the Online Media and Streaming Solutions business and
related services (the "Business") of Magnitude;
B. The assets purchased by Global include the customer list as set out on
the attached Schedule "A" and an assignment of the Acquired Contracts (the
"Customers"); and
C. As a condition precedent to the purchase contemplated by the Asset
Purchase Agreement, iCast has agreed to enter into this agreement with Global on
the terms and conditions set forth herein, and to grant the restrictive
covenants hereinafter set forth;
THEREFORE, in consideration of the premises set forth herein, the sum of $10 of
lawful money of the United States now paid by Global to iCast and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), iCast hereby covenants and agrees with Global as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
(a) All defined terms in the Asset Purchase Agreement will have the same
meaning in this Agreement, unless otherwise defined herein;
(b) Affiliate means a person or entity more than 50% owned by iCast, provided,
however, that Affiliate shall not include Signatures SNI, Inc. or
Signatures Network, Inc.;
(c) "iCast" means iCast Corporation and includes any Affiliate of iCast
Corporation;
(d) "Global" means Globalmedia.com;
(e) "Asset Purchase Agreement" has the meaning set out in Recital A; and
(f) "Customers" means all of the entities listed on Schedule "A" and "Customer"
means any one of the Customers.
2. NON-SOLICITATION
2.1 iCast will not, without the prior written consent of Global, during the
period of one (1) year from the date hereof, directly or indirectly, solicit or
aid in the solicitation of any of the Customers for the purpose of providing
goods or services to such Customers that are similar to or competitive with the
goods and services that were previously provided to such Customers as part of
the Business.
2.2 iCast will not, without the prior written consent of Global, during the
period of one (1) year from the date hereof directly or indirectly, (a) solicit
for employment any person who is, at the time of such solicitation, employed by
Global, provided, however, that this Section 2.2 shall exclude any general
solicitation which iCast and its Affiliates may make through advertising or
third party recruiting companies; (b) induce any person to leave his employment
with Global; or (c) employ any person who was an employee of Global at any time
during such one (1) year period.
2.3 For the purpose of this Agreement the words "employee" and "employ"
include persons hired under contract and/or as employees and relationships of
employment and/or independent contractors.
3. REASONABLENESS
3.1 All restrictions in this Agreement are expressly declared to be
reasonable and valid and iCast acknowledges that its acceptance of such
restrictions is a material inducement to Global to purchase the assets of
Magnitude pursuant to the Asset Purchase Agreement. All defences to the strict
enforcement of such restrictions are hereby waived by iCast.
4. REMEDIES ON BREACH
4.1 The parties to this Agreement recognize that a breach by iCast of any
of the covenants herein contained would result in irreparable harm to Global and
that Global could not adequately be compensated for such harm by monetary award.
Accordingly, if there is any such breach or threatened breach, in addition to
all other remedies available to Global at law or in equity, Global will be
entitled as a matter of right to apply to a court of competent equitable
jurisdiction for such relief by way of restraining order, injunction, decree or
otherwise, as may be appropriate to ensure compliance by iCast with the
provisions of this Agreement without the necessity of proving actual damage to
Global.
5. GOVERNING LAW
5.1 This Agreement will be governed by and construed in accordance with the
internal laws of the State of Delaware.
6. NON-ASSIGNABILITY
6.1 This Agreement and the covenants and obligations of iCast may not be
assigned by iCast.
7. NOTICES
7.1 All notices, demands and payments required or permitted to be given
hereunder will be in writing and may be delivered personally, or sent by
electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy or may be forwarded by first class prepaid
registered mail to the addresses set forth below. Any notice delivered or sent
by non-electronic communication will be deemed to have been given and received
at the time of delivery. Any notice sent by electronic communication will be
deemed to have been given and received at the time of successful transmission.
If to the Global:
Globalmedia.com
400 Robson Street
Vancouver, BC V6A 3A6
Fax: (604) 688-9996
If to iCAST to:
iCAST Corporation
78 Dragon Court
Woburn, MA 01801
Fax: (781) 994-0700
8. FURTHER ASSURANCES
8.1 Each of the parties hereto hereby covenants and agrees to execute such
further and other documents and instruments and to do such further and other
things as may be necessary to implement and carry out the intent of this
Agreement.
9. NON-WAIVER
9.1 No condoning, excusing or waiver by any party hereto of any default,
breach or non-observance by any other party hereto at any time or times in
respect of any covenant, proviso or condition herein contained will operate as a
waiver of that party's rights hereunder in respect of any continuing or
subsequent default, breach or non-observance, or so as to defeat or affect in
any way the rights of that party in respect of any such continuing or subsequent
default, breach or non-observance, and no waiver will be inferred from or
implied by anything done or omitted to be done by the party having those rights.
10. SEVERABILITY
10.1 If any covenant or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by reason of any rule of law or public
policy, then such covenant or other provision will be severed from and will not
affect any other provision of this Agreement, and this Agreement will be
construed as if such invalid, illegal, or unenforceable provision had never been
contained in this Agreement. All other conditions and provisions of this
Agreement will, nevertheless, remain in full force and effect and no covenant or
provision will be deemed dependent upon any other covenant or provision unless
so expressed herein.
11. COUNTERPARTS
11.1 This Agreement may be executed in several counterparts, each of which
will be deemed to be an original and all of which will together constitute one
and the same instrument.
12. ELECTRONIC MEANS
12.1 Delivery of an executed copy of this Agreement by electronic facsimile
transmission or other means of electronic communication capable of producing a
printed copy will be deemed to be execution and delivery of this Agreement as of
the date set forth on page one of this Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed under
seal and delivered as of the date first above written.
GLOBALMEDIA.COM
Per: /s/ Winston Barta
------------------
Authorized Signatory
ICAST CORPORATION
Per: /s/ Anthony Brandano
---------------------
Authorized Signatory
(Signature page to Non-Solicitation Agreement)
SCHEDULE "A" to Non-Solicitation Agreement
dated August 1, 2000 between Globalmedia.com and iCast Inc.
Customer List
Station Owner
- --------------------------------------------------------------------------------
CFHK Corus Radio Group
CFNY Corus Radio Group
CIDR CHUM Limited
CIMX CHUM Limited
CING Corus Radio Group
CKWW CHUM Limited
KBAC Roberts Radio
KBBN Custer County Broadcasting Company Inc.
KBCQ Roswell Radio, Inc
KBTU New Wave Broadcasting
KBXR Fort Smith FM, Inc.
KCDU New Wave Broadcasting
KCLE M&M Broadcasters
KCNI Custer County Broadcasting Company Inc.
KFAN Fritz Broadcasting Inc.
KFMU Salisbury Broadcasting
KFRU Columbia AM, Inc.
KGFY Stillwater Radio
KGRP Wine Country Radio
KHYI KHYI-Metro Broadcasters-Texas Inc.
KJJY Barnstable Broadcasting
KKLI AM/FM bought this station from Citadel 11/15/99
KLAQ New Wave Broadcasting
KLRQ B&F Broadcasting, Inc
KLZ Crawford Broadcasting Company
KMBY New Wave Broadcasting
KNSX 21st Street Communications
KOMO
KOQL Mid-Missouri Broadcast, Inc.
KOTR Central Coast Commuity Broadcasting,Inc
KPIG New Wave Broadcasting
KPLA Columbia FM, Inc.
KPLZ Fisher Broadcasting Inc
KRKQ Barnstable Broadcasting
KROD New Wave Broadcasting
KRSH Wine Country Radio
KRXS Richard Potyka
KSII New Wave Broadcasting
KSLQ Y2K Inc.
KSPI Stillwater Radio
KTAO Taos Commuications Corporation
KTFW M&M Broadcasters
KTRS CH Holdings
KVI
KWMO Computraffic Inc
KWOW M&M Broadcasters
KXEZ Metro Texas Broadcasters
KXST GSA Broadcasting
KZAT Camrory Broadcasting
WAGN Badger Communications
WAPS Akron Board of Education
WAUS Andrews University
WBAB Cox Broadcasting
WBJX WBJX, Inc
WBLI Cox Broadcasting
WBZO Barnstable Broadcasting
WCMS Barnstable Broadcasting
WCTK Hall Communications
WCTY Bonnie Rowbotham
WDJC Crawford Broadcasting Company
WDST Chet 5 Broadcasting
WEBX Magnitude of Tuscola
WEGK Hall Communications
WEND The Dalton Group
WEQX Northshire Communications
WFHB Bloomington Comm. Radio Incorporated
WFPK Public Radio Partnership
WFPL Public Radio Partnership
WGH Barnstable Broadcasting
WGHT WGHT Mariana Broadcasting
WGKX Barnstable Broadcasting
WGMS Bonneville International Corp
WHLI Barnstable Broadcasting
WHYB Badger Communications
WIND Hispanic Broadcasting Corporation
WJJO Mid-West Management Inc.
WJSE AL PARINELLO ALP@WJSE.COM
WKDD Barnstable Broadcasting
WKJY Barnstable Broadcasting
WKOL Hall Communications
WKPO TBK Communications
WKSI Bahakel Communications
WLPW Radio Lake Placid Inc.
WLST Badger Communications
WLXX Hispanic Broadcasting Corporation
WMAM Badger Communications
WMGN Mid-West Management Inc.
WMJC Barnstable Broadcasting
WNLC Hall Communications
WNSR Southern Wabash Commuications Corp.
WNTC Southern Wabash Commuications Corp.
WOCO Badger Communications
WOCO Badger Communications
WOJO Hispanic Broadcasting Corporation
WOKO Hall Communications
WOR talk Buckley Broadcasting
WOR music Buckley Broadcasting
WOTS J & V Communications
WPRD John Torrado
WPCV Hall Communications
WRBO Barnstable Broadcasting
WRCN Barnstable Broadcasting
WRKS Emmis
WSFQ Badger Communications
WSJD Randolph Victor Bell
WSRR Barnstable Broadcasting
WTDY Mid-West Management Inc.
WTOP Bonneville International Corp
WTOP2 Bonneville International Corp
WTRR John Torrado
WTYD Hall Communications
WUMB University of Massachussetts
WVMC Wabash Communication Inc.
WWCD Roger Vaughan
WWMG The Dalton Group
WWQM Mid-West Management Inc.
WWRZ Hall Communications
WWSO Barnstable Broadcasting
WWZZ Bonneville International Corp
WZZQ Contemporary Medio