EXHIBIT C
Execution Version
PURCHASE AND SUBSCRIPTION AGREEMENT
THIS PURCHASE AND SUBSCRIPTION AGREEMENT, dated as of October 17, 2003
(this "Agreement"), is by and among TalkPoint Communications Inc., a Delaware
corporation (the "Company"), Moneyline Networks, LLC, a Delaware limited
liability company ("MLN"), each party whose name appears on the signature pages
of this Agreement (each an "Investor" and, collectively, the "Investors") and,
with respect to Sections 4(e) and 13 hereof, Moneyline Telerate Holdings, a
Delaware corporation ("MTH").
RECITALS
WHEREAS, MLN beneficially owns 33,289,824 shares (the "MLN Shares") of
common stock, par value $0.01 per share (the "Common Stock") of the Company,
which represents approximately 57% of the aggregate number of outstanding shares
of Common Stock;
WHEREAS, each of the Investors desires to make a cash investment in the
Company in exchange for (i) newly issued shares of Common Stock (the "Newly
Issued Common Stock") and (ii) a note of the Company convertible into Common
Stock substantially in the form attached hereto as Exhibit A (a "Convertible
Note") secured by certain assets of the Company pursuant to a Security Agreement
substantially in the form attached hereto as Exhibit B (the "Security
Agreement"), with the minimum aggregate investment of the Investors being
$1,200,000;
WHEREAS, each of the Investors desires to purchase from MLN,
simultaneously with the purchase of the Newly Issued Common Stock and the
Convertible Note, a number of MLN Shares (the transfer of such MLN Shares
together with the issuance of the Newly Issued Common Stock and the Convertible
Notes, the "Investment Transaction");
WHEREAS, in connection with the Investment Transaction, MLN and the
Company will enter into a distribution and licensing agreement substantially in
the form attached hereto as Exhibit C (the "Distribution Agreement"), (the
"Distribution Transaction" and, together with the Investment Transaction, the
"Transactions");
WHEREAS, in connection with the consummation of the Transactions, MTH
and the Company will terminate the Secured Credit Agreement (as defined below)
and all obligations and agreements related thereto; and
WHEREAS, a special committee of independent directors of the Board of
Directors of the Company has reviewed and evaluated the terms and conditions of
the Transactions and deems the consummation of the Transactions to be fair to
the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
and the representations and warranties herein contained, and for other good and
valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement:
"Affiliate" or "Affiliates" shall have the meaning ascribed to such
term by Rule 144 promulgated under the Securities Act of 1933, as amended
(the "Securities Act").
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof or court, arbitral or other tribunal
and any entity properly exercising executive, legislative, judicial,
regulatory or administrative functions of government.
"Lien" means any charge, equitable interest, lien, encumbrance,
claim, option, proxy by way of security, pledge, security interest,
mortgage, right of first refusal, right of preemption, transfer or
retention of title agreement, or restriction by way of security of any kind
or nature, including any restriction on use, voting, transfer, receipt of
income or exercise of any other attribute of ownership.
"Material Adverse Effect" means, as to any person, any change event
or effect that is materially adverse to (a) the business, assets, financial
condition, operations or results of operations of such person and its
subsidiaries taken as a whole; or (b) the ability of such person to
consummate the transactions contemplated by this Agreement or perform its
obligations with respect thereto; provided, however, that in no event shall
a decline in the market price of any person's publicly traded securities,
in and of itself, constitute a Material Adverse Effect.
"Requirements of Law" means, as to any person, the certificates of
incorporation and bylaws or other organizational or governing documents of
such person, and all federal, state, local and foreign laws, rules and
regulations, including, without limitation, securities, antitrust,
communications, licensing, health, safety, labor and trade laws, rules and
regulations, and all orders, judgments, decrees and other determinations of
any Governmental Authority or arbitrator, applicable to or binding upon
such person or any of its property or to which such person or any of its
property is subject.
"Transaction Documents" means this Agreement, the Security Agreement,
the Convertible Notes, the Distribution Agreement and any other documents
delivered by a party at the Closing.
"Transfer Agent" means Continental Stock Transfer & Trust Company, in
its capacity as transfer agent for the Common Stock.
2. Consummation of the Investment Transaction. On the terms and subject
to the conditions set forth in this Agreement and in reliance upon the
representations, warranties, covenants and agreements contained herein, each of
the parties hereto shall take all actions necessary to consummate the Investment
Transaction at the Closing (as defined in Section 4(a)), including, without
limitation, the following:
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(a) Purchase and Sale of the Newly Issued Common Stock. The
Company shall issue and sell to each Investor, and each Investor shall
purchase from the Company, the number of shares of Newly Issued Common
Stock specified opposite such Investor's name on Schedule I hereto.
(b) Purchase and Issuance of the Convertible Notes. The Company
shall issue and sell to each Investor, and each Investor shall purchase
from the Company, a Convertible Note in the principal amount specified
opposite such Investor's name on Schedule I hereto.
(c) Purchase Price for Securities; Allocation of Purchase Price
for Newly Issued Common Stock and Convertible Notes. The Company shall
issue the Newly Issued Common Stock and the Convertible Notes in exchange
for payment to the Company of the applicable purchase price as indicated in
Schedule I hereto. The total purchase price payable by each Investor (as
reflected on Schedule I hereto) shall be allocated 75% and 25% to the Newly
Issued Common Stock and the Convertible Notes, respectively.
(d) Purchase and Sale of the MLN Shares. MLN shall sell to each
Investor, and each Investor shall purchase from MLN, the number of MLN
Shares specified opposite such Investor's name on Schedule I hereto in
exchange for an aggregate purchase price of $1.00 to be paid by each
Investor to MLN.
3. Consummation of the Distribution Transaction. On the terms and
subject to the conditions set forth in this Agreement and in reliance upon the
representations, warranties, covenants and agreements contained herein, MLN and
the Company shall execute and deliver the Distribution Agreement to each other.
4. Closing.
(a) Closing. The closing of the Investment Transaction (the
"Closing") will take place at the offices of Xxxxxx & Xxxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the date hereof (the "Closing
Date").
(b) Deliveries by the Company. At the Closing or promptly
thereafter, the Company shall deliver: (i) to the Transfer Agent
instructions, together with any required legal opinions, to issue
certificates registered in the name of each of the Investors, representing
the shares of Newly Issued Common Stock purchased by such Investor and
bearing the legends required pursuant to Section 16(p) hereof, (ii) to each
Investor, a duly executed Convertible Note in the principal amount set
forth in Schedule I for such Investor and a duly executed copy of this
Agreement and the Security Agreement and (iii) to MLN, (A) a duly executed
copy of this Agreement and the Distribution Agreement and (B) $1.00, which
represents consideration for the cancellation of outstanding warrants
pursuant to Section 14 hereof and (iv) to MTH, a duly executed copy of this
Agreement.
(c) Deliveries by MLN. At the Closing or promptly thereafter, MLN
shall (i) surrender to the Transfer Agent certificates representing its
shares of Common
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Stock to be acquired by the Investors as contemplated by Section 2(d)
hereof, such certificates to be accompanied by stock powers duly executed
in blank by MLN with such other agreements and instruments as the Transfer
Agent may require to effect the transfer of such securities, (ii) deliver
to the Transfer Agent instructions, together with any required legal
opinions, to issue certificates representing shares of Common Stock to be
acquired by the Investors pursuant to Section 2(d) to each of the
Investors, and bearing the legends required pursuant to Section 16(p)
hereof, and (iii) deliver a duly executed copy of this Agreement and the
Distribution Agreement to the Company and a duly executed copy of this
Agreement to the Investors.
(d) Deliveries by the Investor. At the Closing, each Investor
shall deliver (i) to the Company, by wire transfer of immediately available
funds to an account maintained at a commercial bank located in the United
States and designated by the Company, or by such other method as the
Company and such Investor shall mutually agree, an amount equal to the
purchase price specified opposite such Investor's name on Schedule I
hereto, (ii) to MLN, $1.00, which represents the purchase price for the MLN
Shares purchased by such Investor, and (iii) to each of the Company and
MLN, a duly executed copy of this Agreement and the Security Agreement.
(e) Deliveries by MTH. At the Closing, MTH shall deliver a duly
executed copy of this Agreement to the Company and the Investors.
5. Representations and Warranties of the Company. The Company hereby
represents and warrants to MLN and each Investor as follows:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. The Company has corporate power and authority to enter into this
Agreement and the other Transaction Documents to which it is a party, to
issue the Newly Issued Common Stock and the Convertible Notes, to perform
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby.
(b) Authority. The execution and delivery of this Agreement and
the other Transaction Documents to which it is a party, the issuance of the
Convertible Notes by the Company, and the performance by the Company of its
obligations hereunder and thereunder have been duly authorized by all
requisite corporate action by the Company, and no other corporate or other
proceeding is necessary for the execution and delivery of this Agreement or
the other Transaction Documents to which it is a party, the issuance of the
Convertible Notes, the performance by the Company of its obligations
hereunder and thereunder and the consummation by the Company of the
transactions contemplated hereby and thereby. This Agreement and the other
Transaction Documents to which it is a party have been duly and validly
executed and delivered by the Company, and, upon the execution and delivery
by the other parties hereto and thereto, will constitute the legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that such validly binding
effect and enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally.
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(c) Capitalization. The Newly Issued Common Stock has been duly
authorized and, when issued in accordance with this Agreement, will be
validly issued, fully paid and nonassessable. The MLN Shares have been duly
authorized and validly issued and are fully paid and nonassessable. The
Common Stock issuable upon conversion of each Convertible Note has been
duly authorized and, when issued in accordance with the terms of such
Convertible Note, will be validly issued, fully paid and nonassessable.
(d) Non-Contravention; Consents.
(i) Neither the execution and delivery by the Company of, nor
the consummation or performance by the Company of any of the
transactions to be consummated or performed by it under, this
Agreement or the other Transaction Documents to which it is a party
will directly or indirectly (with or without notice or lapse of time):
(A) violate any provision of the Company's Certificate of
Incorporation or Bylaws, (B) constitute or result in a breach or
default by the Company or any of its subsidiaries, or give rise to a
right of termination, amendment, cancellation or acceleration on the
part of any other party, or result in the creation or imposition of
any Lien on the Company's assets (except as provided in the Security
Agreement), under any agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound, which breach, default, termination or Lien
would have a Material Adverse Effect on the Company, or (C) constitute
a violation by the Company or any of its subsidiaries of any
Requirements of Law that would have a Material Adverse Effect on the
Company.
(ii) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with,
any Governmental Authority or other person on the part of the Company
or any of its subsidiaries is required in connection with the
execution, delivery and performance by the Company of this Agreement
or the other Transaction Documents to which it is a party or the
consummation of the transactions contemplated hereby or thereby,
except for the consents of MLN provided herein, filings required under
federal or states securities laws to effect a Rule 506 or similar
exemption under the Securities Act and such other consents, approvals,
orders, authorizations, registrations, qualifications, designations,
declarations or filings the failure of which to have or to make would
not have a Material Adverse Effect on the Company.
(e) SEC Filings. Since October 16, 2002, the Company has properly
filed all forms, schedules, reports, prospectuses, proxy statements and
documents required to be filed by the Company with the Securities and
Exchange Commission (the "TalkPoint SEC Reports"). The TalkPoint SEC
Reports (i) at the time they were filed, complied in all material respects
with the requirements of the Securities Act or the Securities Exchange Act
of 1934, as amended, as the case may be, and the rules and regulations
promulgated thereunder, and (ii) did not at the time they were filed (or if
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amended or superseded by the filing prior to the date of this Agreement,
then on the date of such filing) contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company makes
no representation or warranty whatsoever concerning the TalkPoint SEC
Reports as of any time other than the time they were filed.
(f) Relationship with MLN. The Company has no material agreements
with MLN other than this Agreement, the Distribution Agreement, the Stock
Purchase Agreement, dated May 16, 2002, by and among MLN, B2BVideo Network
Corp. ("B2B") and the Company, the Strategic Alliance Agreement, dated as
of May 16, 2002, by and among MLN, B2B and the Company, the two Technology
License Agreements entered into in connection therewith, and the Guarantee
by Moneyline Telerate, an affiliate of MLN, in connection with the
Agreement of Lease, dated as of July 7, 1999, between the Company and
WU/Lighthouse 100 Xxxxxxx, L.L.C., as amended. The Company has no
outstanding indebtedness owed to MLN.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 5 OR THE OTHER
TRANSACTION DOCUMENTS, THE COMPANY IS NOT MAKING ANY REPRESENTATIONS AND
WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, TO MLN OR ANY INVESTOR WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
6. Representations and Warranties of MLN. MLN hereby represents and
warrants to the Company and each Investor as follows:
(a) Organization. MLN is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware. MLN has the requisite limited liability company power
and authority to enter into this Agreement and the other Transaction
Documents to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and
thereby.
(b) Authority. The execution and delivery of this Agreement and
the other Transaction Documents to which it is a party by MLN, and the
performance by MLN of its obligations hereunder and thereunder have been
duly authorized by all necessary limited liability company action by MLN,
and no other proceeding is necessary for the execution and delivery of this
Agreement or the other Transaction Documents to which it is a party, the
performance by MLN of its obligations hereunder and thereunder and the
consummation by MLN of the transactions contemplated hereby and thereby.
This Agreement and the other Transaction Documents to which it is a party
have been duly and validly executed and delivered by MLN, and upon the
execution and delivery by the other parties hereto and thereto, will
constitute the legal, valid and binding obligations of MLN, enforceable
against MLN in accordance with its terms, except to the extent that such
validly binding effect and enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights
generally. The MLN Shares have been duly authorized and validly issued and
are fully paid and nonassessable.
(c) Non-Contravention; Consents.
(i) Neither the execution and delivery by MLN of, nor the
consummation or performance by MLN of any of the transactions to be
consummated or performed by it under, this Agreement or the other
Transaction Documents to which it is a party will directly or
indirectly (with or without notice or lapse of time): (A) violate any
provision of MLN's Certificate of Formation, Limited Liability Company
Agreement or other similar organizational documents (B) constitute or
result in a breach or default by MLN, or give rise to a right of
termination, amendment, cancellation or acceleration on the part of
any other party, or result in the creation or imposition of any Lien
on MLN's assets, under any agreement or instrument to which MLN is a
party or by which MLN is bound, which breach, default, termination or
Lien would have a Material Adverse Effect on MLN, or (C) constitute a
violation by MLN of any Requirements of Law that would have a Material
Adverse Effect on MLN.
(ii) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with,
any Governmental Authority or other person on the part of MLN is
required in connection with the execution, delivery and performance by
MLN of this Agreement or the other Transaction Documents to which it
is a party or the consummation of the transactions contemplated hereby
or thereby, except for the consents of MLN provided herein and such
other consents, approvals, orders, authorizations, registrations,
qualifications, designations, declarations or filings the failure of
which to have or to make would not have a Material Adverse Effect on
MLN.
(d) MLN Shares. MLN is the record holder of the MLN Shares being
transferred to the Investors, which shares are free and clear of any Liens.
MLN is not bound with respect to the MLN Shares being transferred by (i)
any subscription, option or other agreement pursuant to which MLN is or may
become obligated to sell such shares or (ii) any voting or similar
agreements other than the Stockholders Agreement that is being terminated
pursuant to Section 16(a)(iii) hereof.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6 OR THE OTHER
TRANSACTION DOCUMENTS, MLN IS NOT MAKING ANY REPRESENTATIONS AND WARRANTIES,
ORAL OR WRITTEN, EXPRESS OR IMPLIED, TO THE COMPANY OR ANY INVESTOR WITH RESPECT
TO THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
7. Representations and Warranties of the Investor. Each Investor
represents and warrants to MLN and the Company as follows:
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(a) Organization. Such Investor, if not a natural person, is an
entity duly organized, validly existing and in good standing under the laws
of the state of its jurisdiction of organization.
(b) Authority. Such Investor has full power and authority to
enter into this Agreement and the other Transaction Documents to which it
is a party, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. Such Investor
that is a natural person has the requisite capacity to execute and deliver
this Agreement and the other Transaction Documents to which it is a party,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. This Agreement and the other
Transaction Documents to which it is a party have been duly and validly
executed and delivered by such Investor and, upon execution and delivery by
the other parties hereto and thereto, will constitute the legal, valid and
binding obligations of such Investor, enforceable against such Investor in
accordance with their terms, except to the extent that such validly binding
effect and enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally.
(c) Non-Contravention; Consents.
(i) Neither the execution and delivery by such Investor of, nor
the consummation or performance by such Investor of any of the
transactions to be consummated or performed by it under, this
Agreement or the other Transaction Documents to which it is a party
will directly or indirectly (with or without notice or lapse of time):
(A) violate any provision of such Investor's organizational or other
governing documents, (B) constitute or result in a breach or default
by such Investor or any of its subsidiaries, or give rise to a right
of termination, amendment, cancellation or acceleration on the part of
any other party, or result in the creation or imposition of any Lien
on such Investor's assets, under any agreement or instrument to which
such Investor or any of its subsidiaries is a party or by which such
Investor or any of its subsidiaries is bound, which breach, default,
termination or Lien would have a Material Adverse Effect on such
Investor, or (C) constitute a violation by such Investor or any of its
subsidiaries of any Requirements of Law that would have a Material
Adverse Effect on such Investor.
(ii) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with,
any Governmental Authority or other person on the part of such
Investor or any of its subsidiaries is required in connection with the
execution, delivery and performance by such Investor of this Agreement
or the other Transaction Documents to which it is a party or the
consummation of the transactions contemplated hereby and thereby,
except for the consents of MLN provided herein and such other
consents, approvals, orders, authorizations, registrations,
qualifications, designations, declarations or filings the failure of
which to have or to make would not have a Material Adverse Effect on
such Investor.
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(d) Investment Intention; No Resales. Such Investor understands
that the Newly Issued Common Stock and the MLN Shares (together, the
"Purchased Securities") being purchased by it hereunder are "restricted
securities" (as defined under Rule 144 under the Securities Act) and have
not been registered under the Securities Act or any applicable state
securities law, and such Investor is acquiring the Purchased Securities for
the purpose of investment and for its own account and not with a view to,
or for resale in connection with, the distribution thereof.
(e) Purchased Securities Unregistered; Accredited Investor. Such
Investor has been advised that (i) the offer and sale of the Purchased
Securities has not been registered under the Securities Act and (ii) the
Purchased Securities being purchased by such Investor hereunder may need to
be held indefinitely. Such Investor represents and warrants that (i) such
Investor is an "Accredited Investor" under Rule 501(a) of the Securities
Act; (ii) such Investor's knowledge and experience in financial and
business matters are such that such Investor is capable of evaluating the
merits and risks of its investment in such Purchased Securities, or such
Investor has been advised by a representative possessing such knowledge and
experience; (iii) such Investor and such Investor's representatives,
including such Investor's professional, financial, tax and other advisors,
if any, have carefully considered the proposed investment by such Investor
in the Purchased Securities, and such Investor understands and has taken
cognizance of (or has been advised by its representatives as to) the risk
factors related to the acquisition of such Purchased Securities, and no
representations or warranties (oral or written) have been made to such
Investor or its representatives concerning the Purchased Securities, the
Company or the Company's business, operations, financial condition or
prospects or other matters except as expressly set forth herein; (iv) in
making its decision to purchase the Purchased Securities being purchased by
it hereunder, such Investor has relied upon independent investigations made
by such Investor and, to the extent believed by such Investor to be
appropriate, such Investor's representatives, including such Investor's
professional, financial, tax and other advisors, if any; (v) such Investor
and its representatives have been given the opportunity to request to
examine all documents of, and to ask questions of, and to receive answers
from, the Company and its representatives concerning the Company (including
without limitation, its prospects, intended use of proceeds, financial
condition, results of operations and matters pertaining to the grand jury
investigation conducted by the U.S. Department of Justice, as described in
the Company's Quarterly Report on Form 10-Q for the period ended June 30,
2003) and the terms and conditions of the acquisition of the Purchased
Securities being purchased by such Investor hereunder and to obtain any
additional information which such Investor or its representatives deem
necessary; (vi) such Investor can sustain without adverse consequence a
loss of its entire investment made hereby; (vii) such Investor is not
acquiring the Purchased Securities as a result of or subsequent to any
advertisement, article, notice or other communication published, or
broadcast in any newspaper, magazine, radio, television, internet or other
media of any type whatsoever, or presented at any seminar or meeting;
(viii) such Investor is not a non-resident alien for federal income tax
purposes or a foreign corporation, foreign trust, foreign estate or foreign
company, as such terms are used in the Internal Revenue Code of 1986 as
amended and the regulations and interpretations thereunder; (ix) such
Investor acknowledges that the Company is entering into this Agreement in
reliance upon such Investor's representations
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and warranties herein; and (x) such Investor has not relied on any
representations or warranties of MLN or its representatives, oral or
written, express or implied, other than those representations and
warranties expressly made by MLN in Section 6 hereof.
(f) Brokers. No person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission from such Investor
in connection with the transactions contemplated hereby.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7 OR THE OTHER
TRANSACTION DOCUMENTS, SUCH INVESTOR IS NOT MAKING ANY REPRESENTATIONS AND
WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, TO MLN OR THE COMPANY WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
8. Right of First Offer for Common Stock. Subject to the terms and
conditions specified in this Section 8, the Company hereby grants to each of (i)
MLN and (ii) the Investors that own beneficially more than ten (10%) percent of
the Common Stock, as determined in accordance with Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended, after taking into account the
effect of the consummation of the Investment Transaction (the "Significant
Investors"), a right of first offer with respect to future issuances by the
Company of its Common Stock or any other instruments convertible into or
exercisable for Common Stock (collectively, the "Covered Shares") solely for
cash. Each of MLN and the Significant Investors may designate as purchasers
under such right itself or its partners, members or affiliates in such
proportions as it deems appropriate.
Each time the Company proposes to offer any Covered Shares, the Company
shall first make an offering of such Covered Shares to each of MLN and the
Significant Investors in accordance with the following provisions:
(a) The Company shall deliver a notice (the "Notice") to each of
MLN and the Significant Investors stating (i) its bona fide intention to
offer such Covered Shares, (ii) the number of such Covered Shares to be
offered, and (iii) the price and terms, if any, upon which it proposes to
offer such Covered Shares. Within 15 days after receipt of the Notice, each
of MLN and the Significant Investors may elect to purchase or obtain, at
the price and on the terms specified in the Notice, all or any number of
the Covered Shares.
(b) The Company may, during the 60-day period following the
expiration of the period provided in Section 8(a) hereof, offer the
remaining unsubscribed portion of the Covered Shares to any person or
persons at a price not less than and upon terms no more favorable to the
offeree than those specified in the Notice. If the Company does not enter
into an agreement for the sale of the Covered Shares within such period, or
if such agreement is not consummated within 60 days of the execution
thereof, the right provided hereunder shall be deemed to be revived and
such Covered Shares shall not be offered unless first reoffered to each of
MLN and the Significant Investors in accordance herewith.
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(c) Notwithstanding any of the foregoing, the provisions of this
Section 8 shall (i) terminate on the earlier to occur of (A) the third
anniversary of the date hereof or (B) with respect to MLN or any of the
Significant Investors individually, on the date such party ceases to own
beneficially more than ten (10%) percent of the Common Stock, as determined
in accordance with Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended (provided that a termination event arising under this
clause (B) with respect to a party individually shall not affect the rights
of the other parties hereunder), (ii) not apply to (A) any public offering
of Covered Shares (including the exercise or conversion of any warrants,
options or other rights to acquire Covered Shares issued in such public
offering), (B) warrants, options or other rights to acquire Covered Shares
outstanding as of the date hereof (including such rights granted pursuant
to the Convertible Notes), (C) issuances of any Covered Shares to
employees, directors, consultants or other agents of the Company or its
Affiliates, and (D) Common Stock issued pursuant to a conversion or
exchange of Covered Shares and (iii) only entitle each of MLN and the
Significant Investors to maintain up to its Percentage Interest (as
defined) in effect immediately prior to the giving of the Notice. The term
"Percentage Interest" shall mean the quotient obtained by dividing the
number of shares of Common Stock (without giving effect to options,
warrants or other rights to acquire Common Stock) owned by MLN or the
applicable Investor, as applicable, immediately prior to the date of the
Notice divided by the number of shares of Common Stock outstanding (without
giving effect to any treasury shares) immediately prior to the date of the
Notice.
9. Restriction on Transfer of Common Stock.
(a) MLN hereby agrees that it shall not, for a period of one (1)
year after the date hereof, offer to sell any Common Stock pursuant to a
registered public offering or in open market transactions; it being
understood that nothing in this Section 9 shall limit the ability of MLN to
sell any or all of the Common Stock owned by it pursuant to a private
placement.
(b) Each of the Investors hereby agrees that it shall not, for a
period of one (1) year after the date hereof, offer to sell any of the
Purchased Securities pursuant to a registered public offering or in open
market transactions; it being understood that nothing in this Section 9
shall limit the ability of any of the Investors to sell any or all of the
Purchased Securities owned by it pursuant to a private placement.
(c) Each of MLN and the Investors hereby consents to the
submission of a stop transfer order to the Transfer Agent to give effect to
this Section 9.
10. Conditions to the Investor's Obligations. The obligation of the
Investors to purchase the Purchased Securities and the Convertible Notes is
subject to the representations and warranties of the Company and MLN contained
in Section 5 and Section 6, respectively, being true and correct as of the
Closing Date, which condition may be waived by the Investors, and the delivery
by the parties hereto of the Transaction Documents as specified in Section 4.
11. Conditions to MLN's Obligations. The obligation of MLN to sell
any of the MLN Shares is subject to (i) the representations and warranties of
the Company and the
11
Investors contained in Section 5 and Section 7, respectively, being true and
correct as of the Closing Date, which condition may be waived by MLN, (ii) the
delivery by the parties hereto of the Transaction Documents as specified in
Section 4 and (iii) the receipt by the Company of funds from the Investors in a
minimum aggregate amount of $1,200,000.
12. Conditions to the Company's Obligations. The obligation of the
Company to issue and sell the Newly Issued Common Stock or the Convertible Notes
is subject to (i) the representations and warranties of MLN and the Investors
contained in Section 6 and Section 7, respectively, being true and correct as of
the Closing Date, which condition may be waived by the Company, (ii) the
delivery by the parties hereto of the Transaction Documents as specified in
Section 4 and (iii) the receipt by the Company of funds from the Investors in a
minimum aggregate amount of $1,200,000.
13. Termination of Secured Credit Agreement. Pursuant to Section 6.4
of that certain Secured Credit Agreement, dated as of August 12, 2003 (the
"Secured Credit Agreement"), by and between MTH and the Company, MTH and the
Company hereby agree that the Secured Credit Agreement, the related Security
Agreement, dated as of August 12, 2003 (the "MTH Security Agreement"), by and
between MTH and the Company, and all obligations and agreements related thereto
shall terminate upon the consummation of the Transactions, provided that the
Company shall repay MTH in full the aggregate principal amount of all Loans (as
defined in the Secured Credit Agreement) outstanding and all accrued and unpaid
interest thereon, if any, at the Closing. The security interests granted to MTH
under the MTH Security Agreement shall terminate pursuant to Section 10 thereof
when all Loans have been fully and indefeasibly repaid to MTH. MTH acknowledges
that no amounts are owed to it under this facility.
14. Cancellation of Warrants. MLN hereby (i) agrees that all
outstanding warrants relating to the Common Stock of the Company registered in
its name shall be cancelled and all obligations with respect thereto shall be
terminated upon the consummation of the Investment Transaction in exchange for
consideration of $1.00 to be delivered by the Company and to deliver such
warrants and such other documents as the Company reasonably requests to effect
such cancellation and termination, (ii) represents and warrants to the Company
that all of such warrants hereof are identified on Schedule II annexed hereto
and that such party has sole record and beneficial ownership of such warrants
and (iii) represents and warrants to the Company that it has not, during the one
year preceding the date hereof, sold, assigned or transferred any warrants or
other rights to acquire Common Stock to any person other than those identified
on Schedule II hereto.
15. Indemnification of Directors and Officers.
(a) The Company shall maintain and perform its obligations under
its existing indemnification and exculpation provisions with respect to
present and former directors and officers of the Company for all losses,
claims, damages, expenses or liabilities arising out of actions or
omissions or alleged actions or omissions occurring at or prior to the date
hereof to the extent permitted or required under applicable law and the
Company's Certificate of Incorporation and Bylaws in effect as of the date
of this
12
Agreement (to the extent consistent with applicable law), for a period of not
less than six years after the Closing.
(b) On the date hereof, the Company shall obtain run-off
directors' and officers' liability insurance covering the current and
former officers, directors and employees of the Company and its
subsidiaries who are currently covered by the Company's existing directors'
and officers' liability insurance, on terms and conditions no less
favorable in any material respect to such directors and officers than those
in effect on the date of this Agreement, and shall maintain such insurance
for a period of not less than six years; provided that the cost of such
insurance shall be paid by MLN.
16. Miscellaneous.
(a) MLN Waiver of Preemptive Rights; Consent to Issuance of Newly
Issued Common Stock and Revision of Bylaws; Termination of Stockholders
Agreement.
(i) MLN hereby waives its preemptive rights, granted
pursuant to Section 3.1 of that certain Stockholders Agreement, dated
as of May 16, 2002 (the "Stockholders Agreement"), by and among MLN,
the Company and the Management Stockholders party thereto, with regard
to the issuance and sale of the Newly Issued Common Stock to the
Investors as contemplated in this Agreement.
(ii) MLN hereby consents, as required by Section 4.1 of the
Stockholders Agreement, to (A) the issuance of the Newly Issued Common
Stock, (B) the revision of the Bylaws of the Company by the Board of
Directors of the Company to effect any and all amendments thereto, and
(C) the consummation of the transactions provided for herein and
contemplated hereby.
(iii) MLN and the Company hereby agree, and the Investors
acknowledge, that the Stockholders Agreement and all obligations of
any parties thereto shall terminate simultaneously with the
consummation of the Transactions.
(b) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as
may be necessary or desirable to consummate the transactions contemplated
by this Agreement.
(c) Blue Sky. The parties hereto agree to use their reasonable
efforts to comply at the Company's expense with all state securities and
"blue sky" laws which might be applicable to the sale of the Purchased
Securities to the Investor; provided, however, that nothing herein shall
require the company to qualify as a foreign corporation in any jurisdiction
or subject it generally to taxation or to general service of process in any
jurisdiction.
(d) Survival of Representations and Warranties. The
representations and warranties of each party hereto contained in this
Agreement shall survive for one
13
year following the Closing Date and then terminate and expire with respect
to any theretofore unasserted claims arising out of any breach or
inaccuracy thereof.
(e) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Notwithstanding the preceding sentence,
neither MLN nor the Company may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written
approval of each Investor; provided, however, that the obligations of MLN
and the Investors pursuant to Section 9 hereof shall be binding upon all
transferees of (i) the Common Stock held by MLN after the consummation of
the Investment Transaction and the Purchased Securities, as applicable, and
(ii) the Convertible Notes.
(f) Severability. The invalidity, illegality or unenforceability
of one or more of the provisions of this Agreement in any jurisdiction
shall not affect the validity, legality or enforceability of the remainder
of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any
other jurisdiction, it being intended that all rights and obligations of
the parties hereunder shall be enforceable to the fullest extent permitted
by law.
(g) Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by or on behalf of each
of the parties hereto.
(h) Waiver. Any party hereto may, with respect to any other party
hereto, (i) extend the time for the performance of any obligations or other
acts, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered hereto or (iii) waive
compliance with any of the agreements or conditions contained herein. Any
such extension or waiver shall be valid if set forth in writing signed by
the party or parties to be bound thereby. No failure or delay on the part
of any party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any
breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
(i) Entire Agreement. This Agreement supersedes all prior
discussions, understandings and agreements between the parties with respect
to the subject matter hereof and this Agreement contains the sole and
entire agreement between the parties to this Agreement with respect to the
subject matter hereof. Schedule I and Schedule II to this Agreement are
incorporated into and form an integral part of this Agreement.
(j) No Third Party Beneficiaries. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective
14
successors and assigns, and it is not the intention of the parties to
confer, and no provision hereof shall confer, third party beneficiary
rights upon any other person.
(k) Expenses. Each party hereto agrees to bear its own expenses
in connection with this Agreement; provided, however, that the Company
agrees to pay the expenses of the Investors represented by Xxxxxxxx Xxxxxx
up to an aggregate amount equal to $10,000 (inclusive of payment of
reasonable out-of-pocket expenses).
(l) Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
(m) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits hereto will
be governed by and construed in accordance with the domestic laws of the
State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
(n) Remedies. In the event of a breach by any party to this
Agreement of its obligations under this Agreement, any party injured by
such breach, in addition to being entitled to exercise all rights granted
by law, including recovery of damages and costs (including reasonable
attorneys' fees), will be entitled to specific performance of its rights
under this Agreement. The parties agree that the provisions of this
Agreement shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, for breach of any such
provision will be inadequate compensation for any loss and that any defense
in any action for specific performance that a remedy at law would be
adequate is waived. Notwithstanding any of the foregoing, the parties
hereto expressly waive and forego any right to recover any lost profits,
exemplary, consequential, incidental, special, punitive or similar damages
in any arbitration, lawsuit, litigation or proceeding arising out of or
resulting from any controversy or claim arising out of or relating to this
Agreement or the acquisition of the Purchased Securities.
(o) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
(p) Securities Act.
(i) Each certificate representing the Purchased Securities
and the certificate representing the MLN Shares held by MLN after the
consummation of the Investment Transaction shall be endorsed with the
following legends and such other legends as may be required by law or
as counsel for the Company reasonably deems appropriate:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE PURCHASE AND SUBSCRIPTION
15
AGREEMENT, DATED AS OF OCTOBER 17, 2003, AS SUCH AGREEMENT MAY BE
AMENDED, RESTATED OR MODIFIED FROM TIME TO TIME, AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT IN ACCORDANCE WITH THE PROVISIONS THEREOF AND ANY
TRANSFEREE OF THESE SECURITIES SHALL BE SUBJECT TO THE TERMS OF SUCH
AGREEMENT. COPIES OF THE FOREGOING AGREEMENT ARE MAINTAINED WITH THE
CORPORATE RECORDS OF THE ISSUER AND ARE AVAILABLE FOR INSPECTION AT
THE PRINCIPAL OFFICES OF THE ISSUER."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED EXCEPT
PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS OR (II) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER OR UNDER APPLICABLE STATE SECURITIES LAWS,
AND, IF AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER OF THIS
CERTIFICATE SHALL HAVE DELIVERED AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(ii) Any certificate issued at any time in exchange or
substitution for any certificate bearing such legends (except a new
certificate issued upon the completion of a transfer pursuant to a
registered public offering under the Securities Act and made in accordance
with the Securities Act) shall also bear such legends, unless in the
opinion of counsel for the Company, the Purchased Securities represented
thereby are no longer subject to the provisions of this Agreement or the
restrictions imposed under the Securities Act or state securities laws, in
which case the applicable legend (or legends) may be removed.
(q) Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed (by
registered or certified mail, return receipt requested) or by reputable
overnight courier, fee prepaid to the parties at the following addresses or
facsimile numbers:
(i) If to the Investors, at the addresses set forth on the signature
pages hereto.
with copies to:
16
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000 0000
Attention: Xxxxx Xxxxxx
(ii) If to MLN or MTH:
Moneyline Networks, LLC
c/o Moneyline Telerate Holdings
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with copies to
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: R. Xxx Xxxxxxxxx
Xxxxx X. Xxxxxxxx
(ii) If to the Company:
TalkPoint Communications Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with copies to
Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx PC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
All such notices, requests and other communications will (w) if delivered
personally to the address as provided in this Section 16(q) be deemed given upon
delivery, (x) if delivered by facsimile transmission to the facsimile number as
provided in this Section 16(q) be deemed given upon receipt, (y) if delivered by
mail in the manner described above to the address as provided in this Section
16(q), be deemed given upon receipt and (z) if delivered by reputable overnight
courier to the address as provided in this Section 16(q), be deemed given upon
receipt.
17
Any party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
(r) Appointment of Collateral Agent. The Investors hereby appoint
Xxxxxxx Xxxxxxx, Esq. to serve as collateral agent with respect to the
Security Agreement and hereby grant and delegate to such person the powers,
rights, duties and obligations, as more fully set forth in the Security
Agreement.
(s) Consent to Jurisdiction and Service of Process. EACH OF THE
PARTIES HERETO CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK AND IRREVOCABLY AGREES
THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT SHALL BE
LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY FINAL AND NONAPPEALABLE JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF VIA OVERNIGHT COURIER, TO SUCH PARTY AT THE ADDRESS
SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE FOURTEEN
CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED
TO LIMIT THE ABILITY OF EITHER PARTY HERETO TO SERVE ANY SUCH LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR
PROCEEDINGS AGAINST THE OTHER PARTY HERETO IN SUCH OTHER JURISDICTIONS, AND
IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
(signature page follows)
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
TALKPOINT COMMUNICATIONS INC.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer
MONEYLINE NETWORKS, LLC
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxx
Title: President
With respect to Sections 4(e) and 13 hereof:
MONEYLINE TELERATE HOLDINGS
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Executive Vice President
Coroporate Development
(Purchase and Subscription Agreement)
21/st/ CENTURY LLC
By: /s/ Xxxx X. Xxxxxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxxxxx, Xx.
Title: Managing Member
Address:
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxxx
(Purchase and Subscription Agreement)
DALEWOOD ASSOCIATES LP
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address:
Dalewood Associates LP
c/o Early Bird Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxx Xxxx
(Purchase and Subscription Agreement)
WOODLAND VENTURE FUND
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: General Partner
Address:
Woodland Venture Fund
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxxxx
(Purchase and Subscription Agreement)
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Address:
Xxxxxxx X. Xxxxxxx
X.X. Xxx 00000
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
(Purchase and Subscription Agreement)
/s/ Markos Drakodos
-----------------------------------
Markos Draokodos
Address:
Markos Drakodos
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: [_______________]
(Purchase and Subscription Agreement)
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxxx
Address:
Xxxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
(Purchase and Subscription Agreement)
WOODLAND PARTNERS
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: General Partner
Address:
Woodland Partners
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxxxx
(Purchase and Subscription Agreement)
SENECA VENTURES
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: General Partner
Address:
Seneca Ventures
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxxxx
(Purchase and Subscription Agreement)
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
Address:
Xxxxx Xxxxxx
00 Xxxx 0xx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Facsimile: [_______________]
(Purchase and Subscription Agreement)
/s/ Xxxxxxxx Xxxxxx
-----------------------------------
Xxxxxxxx Xxxxxx
Address:
Xxxxxxxx Xxxxxx
0 Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
(Purchase and Subscription Agreement)
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
Address:
Xxxxx Xxxxxxx 00 Xxxx 0xx
Xxxxxx Xxxxx 0000 Xxxxx, XX
00000 Facsimile:
000-000-0000
(Purchase and Subscription Agreement)
Schedule I
Investment Transaction
------------------------------------------------------------------------------------------------------------------
Shares of Number of
Newly Issued Principal Total MLN
Common Amount Purchase Shares
Investor SSN/EIN # Stock Convertible Note Price Transferred
-------- --------- ----- ---------------- ----- -----------
------------------------------------------------------------------------------------------------------------------
21/ST/ Century LLC 00-0000000 1,125,000 $75,000 $300,000 4,763,653
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Dalewood Associates LP 00-0000000 562,500 $37,500 $150,000 2,381,827
c/o Early Bird Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Woodland Venture Fund 00-0000000 562,500 $37,500 $150,000 2,381,827
c/o Early Bird Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx XXX-XX-XXXX 562,500 $37,500 $150,000 2,381,827
X.X. Xxx 00000
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Markos Drakodos XXX-XX-XXXX 562,500 $37,500 $150,000 2,381,827
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxxx XXX-XX-XXXX 393,750 $26,250 $105,000 1,667,270
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Woodland Partners 00-0000000 375,000 $25,000 $ 100,000 1,587,885
c/o Early Bird Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Seneca Ventures 00-0000000 375,000 $25,000 $ 100,000 1,587,885
c/o Early Bird Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx XXX-XX-XXXX 187,500 $12,500 $ 50,000 793,943
00 Xxxx 0/xx/ Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx XXX-XX-XXXX 112,500 $7,500 $ 30,000 476,366
0 Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx XXX-XX-XXXX 56,250 $3,750 $ 15,000 238,183
00 Xxxx 0/xx/ Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------
TOTAL 4,875,000 $325,000 $1,300,000 20,642,493
------------------------------------------------------------------------------------------------------------------
Schedule II
-----------------------------------------------------------------------------------------------------
Warrant holder Number of shares of common stock issuable upon exercise of Warrant/1/
-------------- ---------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Moneyline Networks, LLC 100,000
-----------------------------------------------------------------------------------------------------
___________
1 Without regard to antidilution adjustments other than those based on stock
splits, reverse splits, recombinations, reclassifications and other similar
events.
EXHIBIT A
FORM OF CONVERTIBLE NOTE
THE SECURITIES REPRESENTED BY THIS NOTE AND THE SECURITIES ISSUABLE UPON
CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD OR TRANSFERRED EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS OR (II) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER OR UNDER APPLICABLE STATE SECURITIES LAWS, AND, IF
AN EXEMPTION SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
TALKPOINT COMMUNICATIONS INC.
SECURED CONVERTIBLE PROMISSORY NOTE
$_______________ October 17, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, TalkPoint Communications Inc., a Delaware corporation
(the "Company"), promises to pay to the order of ____________________ (the
"Investor"), or its registered assigns, the principal sum of __________ Dollars
($_________), or such lesser amount as shall equal the outstanding principal
amount hereof, together with interest from the date of this Note on the unpaid
principal balance at a rate equal to eight percent (8.00%) per annum, computed
on the basis of the actual number of days elapsed and a year of 365 days,
compounding annually. All unpaid principal, together with any then unpaid and
accrued interest and other amounts payable hereunder, shall be due and payable
on October 17, 2008. This Note is one of the "Convertible Notes" issued pursuant
to the Purchase and Subscription Agreement, dated as of October 17, 2003 (as
amended, modified or supplemented, the "Purchase Agreement"), by and among the
Company, Moneyline Networks, LLC, the Investors (as defined in the Purchase
Agreement), and, with respect to Sections 4(e) and 13 thereof, Moneyline
Telerate Holdings.
THE OBLIGATIONS DUE UNDER THIS NOTE ARE SECURED BY A SECURITY AGREEMENT
(THE "SECURITY AGREEMENT") EXECUTED BY THE COMPANY FOR THE BENEFIT OF THE
INVESTOR. ADDITIONAL RIGHTS OF THE INVESTOR ARE SET FORTH IN THE SECURITY
AGREEMENT.
The following is a statement of the rights of the Investor and the
conditions to which this Note is subject, and to which the Investor, by the
acceptance of this Note, agrees:
1. Definitions. As used in this Note, the following capitalized terms have
the following meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Business Day" shall mean any day other than Saturday, Sunday and
any other day on which banks in the State of New York are authorized or
obligated to be closed.
(c) "Company" includes the corporation initially executing this Note
and any Person which shall succeed to or assume the obligations of the Company
under this Note.
(d) "Event of Default" has the meaning given in Section 3 hereof.
(e) "Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of operations, retained earnings and cash flow
of such Person for such period, and balance sheets of such Person as of the end
of such period, setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year if such period is less than a
full fiscal year or, if such period is a full fiscal year, corresponding figures
from the preceding fiscal year, all prepared in reasonable detail and in
accordance with GAAP. Unless otherwise indicated, each reference to Financial
Statements of any Person shall be deemed to refer to Financial Statements
prepared on a consolidated basis.
(f) "GAAP" shall mean generally accepted accounting principles as in
effect in the United States of America from time to time.
(g) "Investor" shall mean the Person specified in the introductory
paragraph of this Note or any Person who shall at the time be the registered
Investor of this Note. A reference to a Lien of the Investor or a security
agreement executed in favor of Investor shall be deemed to include a Lien
granted to a collateral agent on behalf of the Investor and a security agreement
executed in favor of a collateral agent on behalf of the Investor, respectively.
(h) "Lien" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien, claim, charge or other encumbrance in, of, or
on such property or the income therefrom, including, without limitation, the
interest of a vendor or lessor under a conditional sale agreement, capital lease
or other title retention agreement, or any agreement to provide any of the
foregoing, and the filing of any financing statement or similar instrument under
the Uniform Commercial Code or comparable law of any jurisdiction.
(i) "Majority in Interest" shall mean 66 2/3% or more of the aggregate
outstanding principal amount of the Notes issued pursuant to the Purchase
Agreement.
(j) "Material Adverse Effect" has the meaning given in the Purchase
Agreement.
(k) "Maturity Date" shall mean the earlier of (i) October 17, 2008 or
(ii) when, upon or after the occurrence of an Event of Default, such amounts are
declared due and payable by the Investor or made automatically due and payable
in accordance with the terms of this Note.
2
(l) "Obligations" shall mean and include all loans, advances, debts,
liabilities and obligations owed by the Company to the Investor arising under or
pursuant to this Note or the Security Agreement including, all interest, fees,
charges, expenses, reasonable attorneys' fees and costs (but only to the extent
such attorney's fees are incurred in connection with the enforcement or
perfection of an Investor's rights hereunder or under the Security Agreement),
chargeable to and payable by the Company hereunder and thereunder, and whether
or not arising after the commencement of a proceeding under Title 11 of the
United States Code (11 U. S. C. Section 101 et seq.), as amended from time to
time (including post-petition interest) and whether or not allowed or allowable
as a claim in any such proceeding.
(m) "Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, a limited
liability company, an unincorporated association, a joint venture or other
entity or a governmental authority.
(n) "Purchase Agreement" has the meaning given in the introductory
paragraph of this Note.
(o) "Security Agreement" has the meaning given in the second paragraph
of this Note.
(p) "Subsidiary" shall mean (a) any corporation of which more than 50%
of the issued and outstanding equity securities having ordinary voting power to
elect a majority of the Board of Directors of such corporation is at the time
directly or indirectly owned or controlled by the Company, (b) any partnership,
joint venture, or other association of which more than 50% of the equity
interest having the power to vote, direct or control the management of such
partnership, joint venture or other association is at the time directly or
indirectly owned and controlled by the Company, (c) any other entity included in
the financial statements of the Company on a consolidated basis.
(q) "Transaction Documents" shall mean the Purchase Agreement, the
Security Agreement, this Note and any other documents executed and delivered in
connection with the transactions contemplated hereby and thereby.
All capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
2. Interest. Accrued interest on this Note shall be payable in arrears
annually on October 17; provided that, if such date is not a business day,
accrued interest shall be payable on the first business day after such date.
3. Events of Default. For purposes of this Note, an "Event of Default"
shall be deemed to have occurred upon the occurrence and continuation of any one
or more of the following events:
(a) the Company fails to pay, more than 15 days after the date such
payment is due (whether at maturity or otherwise), the full amount of interest
then accrued hereon or the full amount of any principal payment hereon;
3
(b) (i) the Company or any of its material Subsidiaries makes an
assignment for the benefit of creditors, (ii) an order, judgment or decree is
entered adjudicating the Company or any of its material Subsidiaries bankrupt or
insolvent and such order, judgment or decree is not stayed, vacated or dismissed
within 90 days of the date of entry thereof, (iii) any order for relief with
respect to the Company or any of its material Subsidiaries is entered under the
Bankruptcy Reform Act, Title 11 of the United States Code, and such order is not
stayed, vacated or dismissed within 90 days of the of the date of entry thereof,
(iv) the Company or any of its material Subsidiaries petitions or applies to any
tribunal for the appointment of a custodian, trustee, receiver or liquidator of
the Company or any of its material Subsidiaries or of any substantial part of
the assets of the Company or any or its material Subsidiaries, or commences any
proceeding relating to the Company or any of its material Subsidiaries under any
bankruptcy reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, or (v) any such petition or
application is filed, or any such proceeding is commenced, against the Company
or any of its material Subsidiaries and either (A) the Company or any of its
material Subsidiaries indicates its approval thereof, consent thereto or
acquiescence therein or (B) such petition, application or proceeding is not
stayed, dismissed or vacated within 90 days after the earlier of the filing or
commencement thereof.
(c) the failure to materially comply with the terms of this Note for a
period of 6 days following written notice of such failure from a registered
holder of this Note.
(d) if the Company shall be in default (after giving effect to any
applicable grace or cure period with respect to such default) with respect to
any indebtedness for borrowed money and the amount that becomes due as a result
of such default exceeds $100,000 in the aggregate.
4. Rights of the Investor upon Default. Upon the occurrence and
continuation of any Event of Default (other than an Event of Default arising
under Section 3(b) hereof), the registered holder of this Note may, with the
express written consent of registered holdings of the Notes representing 33 1/3%
or more of the aggregate outstanding principal amount of the Notes issued
pursuant to the Purchase Agreement, by written notice to the Company, declare
all outstanding Obligations to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the other Transaction
Documents to the contrary notwithstanding. Upon the occurrence and continuation
of any Event of Default described in Section 3(b) hereof, immediately and
without notice, all outstanding Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the other Transaction Documents to the contrary notwithstanding. In
addition to the foregoing remedies, upon the occurrence or existence of any
Event of Default, the Investor may exercise any other right power or remedy
granted to it by the Transaction Documents or otherwise permitted to it by law,
either by suit in equity or by action at law, or both.
5. Conversion.
(a) Optional Conversion by the Investor. The principal amount of this
Note plus accrued and unpaid interest thereon shall be convertible, in whole or
in part, at the option of the Investor, at any time and from time to time prior
to Maturity, into fully paid and nonassessable
4
shares of Common Stock (as defined in the Purchase Agreement) at the then
effective Conversion Rate (as defined below).
(b) Optional Conversion by the Company. The principal amount of this
Note plus accrued and unpaid interest thereon shall be convertible, in whole or
in part, at the option of the Company exercised by written notice to the
Investor specifying the effective date of such conversion (which shall not be
after the Maturity Date nor more than 30 days after the date of such notice), at
any time and from time to time prior to the Maturity, following (i) 30 days
after the date on which there is a public announcement of a final resolution
with respect to the Company, by settlement, court order or otherwise, of the
grand jury investigation being conducted by the Antitrust Division of the United
States Department of Justice (which investigation is described under Note 14
"Legal Proceedings" to the Notes to Consolidated Financial Statements in the
Form 10-Q of the Company for the period ended June 30, 2003), and (ii) the
earlier to occur of (x) the date on which the average of the last reported sales
prices for the Common Stock (or, to the extent the last reported sales price is
not available on any day, the average of the bid and asked price on such day)
for any 20 consecutive Business Day period is at or above $0.35 per share
(provided that such date shall be at least 20 Business Days after the expiration
of the 30-day period contemplated in clause (i) above) or (y) the second
anniversary of the date hereof, at the Conversion Rate in effect as of the date
such notice is given. The Investor shall provide the Company, at the Company's
request, with a certificate certifying as to the accuracy of the representations
and warranties set forth in Sections 7(d) and (e) of the Purchase Agreement,
such certificate to be in form reasonably acceptable to the Company.
(c) Conversion Rate. The "Conversion Rate," as of any date of
determination, shall equal an amount determined by dividing (i) the then
outstanding principal amount of the Note plus any accrued and unpaid interest
thereon by (ii) the Conversion Price (as defined in Section 5(d)).
(d) Conversion Price. The "Conversion Price" shall initially be $0.25.
If, after the date hereof, the outstanding shares of Common Stock shall have
been changed into a different number of shares or a different class by reason of
any stock dividend, subdivision, reclassification, recapitalization, split,
combination or other similar event, the Conversion Price shall be
correspondingly adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or other similar event.
(e) Conversion Process. To convert a Note, the Investor must (i)
complete and sign a conversion notice substantially in the form attached hereto
as Annex I, (ii) surrender the Note to the Company, (iii) furnish appropriate
endorsements or transfer documents if required by the Company and (iv) pay any
transfer or similar tax, if required. By converting this Note, the Investor
shall be deemed to be confirming the accuracy of the representations and
warranties set forth in Sections 7(d) and (e) of the Purchase Agreement with
respect to such Investor as of the date the conversion notice is submitted to
the Company. In the case of a conversion by the Investor of less than the entire
unpaid principal balance of this Note (together with all accrued and unpaid
interest thereon) for the Common Stock, the Company shall cancel this Note and
execute and deliver a new Note of like tenor for the balance of the unpaid
principal balance upon the date of such conversion. Upon the conversion of all
or a portion of this Note (together with
5
all accrued and unpaid interest thereon) for Common Stock, the obligations of
the Company under this Note shall be satisfied to the extent the Note is so
converted.
(f) Fractional Shares; Interest; Effect of Conversion. No fractional
shares shall be issued upon conversion of this Note. In lieu of the Company
issuing any fractional shares to the Investor upon the conversion of this Note,
the Company shall pay to the Investor an amount equal to the product obtained by
multiplying $0.25 (or such other amount resulting from an adjustment of such
conversion price in accordance with Section 5(d) hereof) by the fraction of a
share not issued pursuant to the previous sentence. In addition, the Company
shall pay to the Investor any interest accrued on the amount to be paid to the
Company pursuant to the previous sentence. Upon conversion of this Note in full
and the payment of the amounts specified in this Section 5, the Company shall be
forever released from all its obligations and liabilities under this Note.
6. Successors and Assigns. Subject to the restrictions on transfer
described in Sections 8 and 9 below, the rights and obligations of the Company
and the Investor of this Note shall be binding upon and benefit the successors,
assigns, heirs, administrators and transferees of the parties.
7. Waiver and Amendment. Any provision of this Note may be amended, waived
or modified upon the written consent of the Company and the registered holder of
this Note.
8. Transfer of this Note or Securities Issuable on Conversion Hereof. With
respect to any offer, sale or other disposition of this Note or securities into
which such Note may be converted, the Investor will give written notice to the
Company prior thereto, describing briefly the manner thereof, together with a
written opinion of the Investor's counsel, such opinion to be reasonably
satisfactory to the Company, to the effect that such offer, sale or other
distribution may be effected without registration or qualification (under any
federal or state law then in effect). Each Note thus transferred and each
certificate representing the securities thus transferred shall bear a legend as
to the applicable restrictions on transferability in order to ensure compliance
with the Act, unless in the opinion of counsel for the Company such legend is
not required in order to ensure compliance with the Act. The Company may issue
stop transfer instructions to its transfer agent in connection with such
restrictions. Subject to the foregoing, transfers of this Note shall be
registered upon registration books maintained for such purpose by or on behalf
of the Company. Prior to the presentation of this Note for registration of
transfer, the Company shall treat the registered Investor hereof as the owner
and Investor of this Note for the purpose of receiving all payments of principal
and interest hereon and for all other purposes whatsoever, whether or not this
Note shall be overdue and the Company shall not be affected by notice to the
contrary.
9. Assignment by Company. Neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, in whole or in part, by the
Company without the prior written consent of the registered holder of this Note,
which consent shall not be unreasonably withheld.
10. Covenants of the Company. The Company hereby agrees that, so long as
any amounts remain outstanding under this Note, the Company:
6
(a) (i) shall preserve, renew and keep in full force and effect its
corporate organizational existence and (ii) shall take all reasonable action to
maintain all rights, privileges and licenses necessary or desirable in the
normal conduct of its business, except, with respect to clause (ii) above, to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(b) shall file with the Securities and Exchange Commission in a timely
manner all reports and other documents as may be required of the Company from
time to time under the Act or the Securities Exchange Act of 1934, as amended;
and
(c) shall not sell, assign, transfer, convey or otherwise dispose of
all or substantially all of its properties or assets without the written consent
of the Majority in Interest of the registered holders of the Notes.
11. Notices. All notices, requests, demands, consents, instructions or
other communications required or permitted hereunder shall in writing and faxed,
mailed or delivered to each party at the respective addresses of the parties as
set forth in the Purchase Agreement, or at such other address or facsimile
number as the Company shall have furnished to the Investor in writing. All such
notices and communications shall be effective (a) when sent by Federal Express
or other overnight service of recognized standing, on the business day following
the deposit with such service; (b) when mailed, by registered or certified mail,
first class postage prepaid and addressed as aforesaid through the United States
Postal Service, upon receipt; (c) when delivered by hand, upon delivery; and (d)
when faxed, upon confirmation of receipt.
12. Pari Passu Notes. The Investor acknowledges and agrees that the payment
of all or any portion of the outstanding principal amount of this Note and all
interest hereon shall be pari passu in right of payment and in all other
respects to the other Notes issued pursuant to the Purchase Agreement or
pursuant to the terms of such Notes. In the event the Investor receives payments
in excess of its pro rata share of the Company's payments to the Investors of
all of the Notes, then the Investor shall hold in trust all such excess payments
for the benefit of the Investors of the other Notes and shall pay such amounts
held in trust to such other Investors upon demand by such Investors.
13. Payment. Payment shall be made in lawful tender of the United States.
14. Default Rate; Usury. During any period in which an Event of Default has
occurred and is continuing, the Company shall pay interest on the unpaid
principal balance hereof at a rate per annum equal to the rate otherwise
applicable hereunder plus two percent (2%). In the event any interest is paid on
this Note which is deemed to be in excess of the then legal maximum rate, then
that portion of the interest payment representing an amount in excess of the
then legal maximum rate shall be deemed a payment of principal and applied
against the principal of this Note.
15. Waivers. The Company hereby waives notice of default, presentment or
demand for payment, protest or notice of nonpayment or dishonor and all other
notices or demands relative to this instrument.
7
16. Governing Law. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of law
provisions of the State of New York or of any other state.
17. Consent to Jurisdiction and Service of Process. EACH OF THE COMPANY AND
THE HOLDER HEREOF CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL
ACTIONS OR PROCEEDINGS RELATING TO THIS NOTE SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE COMPANY AND THE HOLDER HEREOF ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND NONAPPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS NOTE. EACH OF THE COMPANY AND
THE HOLDER HEREOF FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF VIA OVERNIGHT COURIER, TO SUCH PARTY AT THE ADDRESS SPECIFIED
IN THE PURCHASE AGREEMENT FOR SUCH PARTY, SUCH SERVICE TO BECOME EFFECTIVE
FOURTEEN CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF EITHER THE COMPANY OR THE HOLDER HEREOF TO SERVE
ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS,
SUITS OR PROCEEDINGS AGAINST THE OTHER PARTY IN SUCH OTHER JURISDICTIONS, AND IN
SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
(signature page follows)
8
IN WITNESS WHEREOF, the Company has caused this Note to be issued as of the
date first written above.
TALKPOINT COMMUNICATIONS INC.
By:__________________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer
ELECTION TO CONVERT
To TalkPoint Communications Inc.:
The undersigned owner of this Note hereby irrevocably exercises the
option to convert his Note, or the portion below designated, into the Common
Stock of TalkPoint Communications Inc. in accordance with the terms of this
Note, and directs that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned, unless a different name has been indicated
in the assignment below. If the shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto. The undersigned hereby confirms the accuracy of the
representations and warranties set forth in Section 7(d) and (e) of the Purchase
Agreement (as such term is defined in the Note) as of the date this election to
convert is submitted to TalkPoint Communications Inc.
Date:
____ in whole;
____ in part:
Portion of this Note to be converted ($1,000 or integral multiples
thereof): $_______________
[INVESTOR]
By:_______________________________
Name:
Title:
Please print or Typewrite Name and
Address, including ZIP Code, and
Social Security or Other
Identifying Number
EXHIBIT B
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of October 17, 2003 (as amended,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Security Agreement") between TALKPOINT COMMUNICATIONS INC., a Delaware
corporation (the "Grantor") and Xxxxxxx X. Xxxxxxx, Esq., XX Xxx 00000, Xxx
Xxxx, Xxx Xxxx 00000 for itself and as collateral agent, (the "Collateral
Agent") on behalf of the Secured Parties (as defined).
Introductory Statement
Pursuant to the Purchase and Subscription Agreement dated as of
October 17, 2003, between Grantor, Moneyline Networks, LLC, and Moneyline
Telerate Holdings, and the other persons whose names appear as signatories to
such agreement (as the same may be amended, supplemented or otherwise modified,
renewed or replaced from time to time, the "Purchase Agreement"), an aggregate
of $325,000 in principal amount of secured convertible notes (collectively, the
"Notes") were issued to the Investors (as defined in the Purchase Agreement).
To provide security for the obligations of the Grantor under the
Notes, the Grantor desires to grant to the Collateral Agent, for its benefit and
for the ratable benefit of each other Secured Party, and to each of the Secured
Parties, a security interest in the Collateral pursuant to the terms hereof.
Accordingly, the parties hereto agree as follows:
1. Definitions. When used in this Security Agreement:
"Account Debtor" means any Person who is obligated or indebted to a
Grantor with respect to any Account.
"Accounts" means all accounts, as defined in the UCC, now owned or
hereafter acquired by the Grantor, including, without limitation, all of the
Grantor's rights to payment for goods sold or leased or services performed by
the Grantor, whether now in existence or arising from time to time hereafter,
including without limitation, rights evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence of indebtedness or
security, together with (i) all security pledged, assigned, hypothecated or
granted to or held by the Grantor to secure the forgoing, (ii) all guarantees,
endorsements, and indemnifications on, or of, any of the foregoing, (iii) all
powers of attorney for the execution of any indebtedness or security or other
writing in connection therewith, (iv) all books, records, ledger cards and
invoices relating thereto, (v) all evidences of filing of financing statements
and other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties,
and certificates from filing or other registration officers, (vi) all credit
information, reports and memoranda relating thereto and (vii) all other writings
in any way related to the foregoing.
1
"Applicable Law" shall mean all provisions of statutes, rules,
regulations and orders of the United States, any state thereof or municipality
therein or of any foreign governmental body or of any regulatory agency
applicable to the Person in question, and all orders and decrees of all courts
and arbitrators in proceedings or actions in which the Person in question is a
party.
"Collateral" means each of the following types or items of personal
property of the Grantor, whether now owned or hereafter acquired, wherever
located: (i) all Accounts, (ii) all Intellectual Property, (iii) all Deposit
Accounts, (iv) all monies now or at any time or times hereafter in the
possession or under the control of the Grantor or the Secured Party, and (v) all
products and Proceeds of the property described in clauses (i) through (iv)
above.
"Copyrights" means any United States or foreign copyrights now or
hereafter owned by the Grantor, including any registrations of any Copyrights in
the United States Copyright Office or the equivalent thereof in any foreign
country and any application for a United States or foreign copyright
registration now or hereafter made by the Grantor with the United States
Copyright Office or the equivalent thereof in any foreign country and any
licenses with respect to any of the foregoing.
"Deposit Account" has the meaning given to such term under Article 9
of the UCC.
"Event of Default" means the occurrence and continuation of an Event
of Default (as defined in the Notes).
"Governmental Authority" means any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision.
"Intellectual Property" means all Copyrights, Marks and Patents now
owned or hereafter acquired by the Grantor, and all corporate or other business
records, inventions, designs, blueprints, plans, trade names, trade secrets,
goodwill, registrations, service marks, logos, licenses, franchises and customer
lists.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any lease in the nature of
security, and the filing of, or agreement to give, any financing statement under
the UCC or the Uniform Commercial Code or other Applicable Law of any
jurisdiction).
"Marks" means all right, title and interest of the Grantor now owned
or hereafter acquired in and to any United States or foreign trademarks, service
marks, and trade names, including any registration of any trademarks and service
marks in the United States Patent and Trademark Office or the equivalent thereof
in any foreign country, any application for a United States or foreign trademark
now or hereafter made by the Grantor with the United States Patent and Trademark
Office or the equivalent thereof in any foreign country and any trade dress
including logos and/or designs used by the Grantor in the United States or any
foreign country and any licenses with respect to any of the foregoing.
2
"Obligations" means all indebtedness, liabilities and other
obligations of the Grantor under the Notes and this Agreement, each whether now
existing or hereafter arising, direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due, acquired outright,
conditionally or as collateral security from another, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, and of all
agreements, documents and instruments evidencing any of the foregoing or under
which any of the foregoing may have been issued, created, assumed or guaranteed.
The term "Obligations" includes, without limitation, the obligations to pay
principal, breakage costs, interest (including, without limitation, interest
accruing after the commencement of any bankruptcy, insolvency, reorganization,
or similar proceedings with regard to the Grantor, whether or not determined to
be an allowed claim in any such proceeding), charges, costs, expenses and fees
including, without limitation, the disbursements and reasonable fees of counsel
to the Collateral Agent (but only to the extent such fees are incurred in
connection with the enforcement or prosecution of rights of the Secured Parties
hereunder or under the Note) and all renewals extensions, restructurings,
refinancings or refundings thereof in a nature of a "workout" or otherwise.
"Patents" means any United States or foreign patent to which the
Grantor now or hereafter have title and any divisions or continuations thereof,
as well as any application for a United States or foreign patent now or
hereafter made by the Grantor and any licenses with respect to any of the
foregoing.
"Person" means any natural person, corporation, division of a
corporation, limited liability company, partnership, trust, joint venture,
association, company, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Proceeds" has the meaning given to such term under Article 9 of the
UCC and shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Collateral, (ii)
any or all payments made or due and payable to the Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral and (iii) any and all other
amounts paid or payable from time to time under or in connection with the
Collateral.
"Secured Parties" means collectively, the Investors (as defined in the
Purchase Agreement) and the Collateral Agent and, each of their permitted
successors, transferees and assigns.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
Terms not otherwise defined herein or in the Loan Agreement shall
have, where appropriate, their respective definitions as set forth in the UCC.
2. Grant of Security Interest. As security for the payment and
performance when due of the Obligations, the Grantor hereby grants to the
Collateral Agent, for its benefit and the ratable benefit of each other Secured
Party, and to each of the Secured Parties, a security interest in, and Lien on,
all of its right, title and interest in and to all of the Collateral.
3. Covenants of the Grantor. The Grantor hereby covenants and agrees
with the
3
Collateral Agent that:
(a) The Grantor shall not change its legal name or assume or operate
in any jurisdiction under any trade, fictitious or other name (other than the
name "Video Network Communications Inc.") unless (i) it shall have given the
Collateral Agent thirty (30) days' prior written notice of its intention to do
so which clearly describes such new name and the jurisdictions in which such new
name will be used and provides the Collateral Agent with any other information
in connection therewith as the Collateral Agent may reasonably request and (ii)
it shall have taken all actions reasonably requested by the Collateral Agent to
maintain the security interest granted to the Secured Parties under this
Security Agreement fully perfected;
(b) The Grantor shall not change its corporate structure or its
domicile of incorporation by redomiciliation, redomestication or otherwise
unless (i) it shall have given the Collateral Agent thirty (30) days' prior
written notice of its intention to do so which clearly describes such change and
identifies the new jurisdiction and provides the Collateral Agent with any other
information in connection therewith as the Collateral Agent may reasonably
request and (ii) it shall have taken all actions reasonably requested by the
Collateral Agent to maintain the security interest granted to the Collateral
Agent under this Security Agreement fully perfected; and
(c) The Grantor shall not establish any new location for its chief
executive office or the location of its books, records and other documents
relating to or evidencing Accounts or Intellectual Property unless (i) the
Grantor provides the Collateral Agent thirty (30) days prior written prior
written notice of its intention to move to such new location, clearly describing
such new location, and provides the Collateral Agent with any other information
in connection therewith as the Collateral Agent may reasonably request and (ii)
it shall have taken all actions reasonably requested by the Collateral Agent to
maintain the security interest granted to the Collateral Agent under this
Security Agreement fully perfected.
4. The Collateral Agent's Rights Exclusive of an Event of Default. The
Grantor hereby agrees to permit representatives of the Collateral Agent, upon
reasonable notice to the Grantor and during normal business hours, to access its
records in connection with the Collateral at such reasonable times and as often
as may be reasonably requested by the Collateral Agent. The Collateral Agent,
from time to time and at its option, may take any other action which the
Collateral Agent reasonably deems necessary for the maintenance or preservation
of any of the Collateral or its interests or any other Secured Party's interest
therein. The Collateral Agent shall have the right to designate any officer,
employee or attorney to execute, sign, endorse, assign, transfer or deliver in
the name of the Grantor, or in its name or the name of the other Secured
Parties, any documents or certificates necessary to evidence, perfect and
realize upon the security interest granted herein.
5. The Collateral Agent's Rights and Remedies Upon an Event of
Default.
(a) Collections, etc. Upon the occurrence and during the continuance
of an Event of Default, the Collateral Agent may, in its sole discretion or at
the direction of Secured Parties holding at least one-third in principal amount
of the Notes outstanding, in its name as Collateral Agent for the benefit of
itself and the other Secured Parties, in the name of the Grantor
4
or otherwise, demand, xxx for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for, or make any
compromise or settlement deemed desirable with respect to the Collateral, but
shall be under no obligation so to do, or the Collateral Agent may extend the
time of payment, arrange for payment in installments, or otherwise modify the
terms of, or release any of the Collateral, without thereby incurring
responsibility to, or discharging or otherwise affecting any liability of the
Grantor. The Collateral Agent will not be required to take any steps to preserve
any rights against prior parties with rights in or to the Collateral. If the
Grantor fails to make any payment or to take any action required hereunder with
respect to the Collateral, the Collateral Agent may make such payments and take
all such actions as the Collateral Agent reasonably deems necessary to protect
the security interests of the Collateral Agent and the other Secured Parties in
the Collateral and/or the value thereof, and the Collateral Agent is hereby
authorized (without limiting the general nature of the authority hereinabove
conferred) to pay, purchase, contest or compromise any Liens which in the
judgment of the Collateral Agent appear to be equal to, prior to or superior to
the security interests of the Collateral Agent or the other Secured Parties in
the Collateral.
(b) Possession, Sale of Collateral, etc. Upon the occurrence and
during the continuance of an Event of Default, in addition to any rights and
remedies the Collateral Agent or the other Secured Parties may have under
Applicable Law, the Collateral Agent and the other Secured Parties shall have
all the rights and remedies available to it under the UCC, whether or not the
UCC applies to the Collateral. The Collateral Agent may take such measures as it
may deem necessary or proper for the care or protection of the Collateral
Agent's and the other Secured Parties' rights and remedies hereunder, including
the right to sell or cause to be sold, whenever the Collateral Agent shall
decide, or at the direction of Secured Parties holding at least one-third in
principal amount of the Notes outstanding, in one or more sales or parcels, at
such prices as the Collateral Agent may deem best, and for cash or on credit or
for future delivery, without assumption of any credit risk, all or any portion
of the Collateral, at any broker's board or at a public or private sale, without
any demand of performance or notice of intention to sell or of the time or place
of sale (except 10 days' written notice to the Grantor of the time and place of
any such sale or sales and such other notices as may be required by Applicable
Law and cannot be waived), and any Person may be the purchaser of all or any
portion of the Collateral so sold and thereafter hold the same absolutely, free
(to the fullest extent permitted by Applicable Law) from any claim or right of
whatever kind, including any equity of redemption, of the Grantor, any such
demand, notice, claim, right or equity being hereby expressly waived and
released to the fullest extent permitted by Applicable Law. At any sale or sales
made pursuant to this Section 5(b), the Collateral Agent or any other Secured
Party may bid for or purchase, free (to the fullest extent permitted by
Applicable Law) from any claim or right of whatever kind, including any equity
of redemption, of the Grantor any such demand, notice, claim, right or equity
being hereby expressly waived and released, any part of or all of the Collateral
offered for sale, and may make any payment on account thereof by using any claim
for moneys then due and payable to the Collateral Agent or such other Secured
Party, as applicable, by the Grantor hereunder as a credit against the purchase
price. Neither the Collateral Agent nor any other Secured Party shall in any
such sale make representations or warranties with respect to the Collateral or
any part thereof, and neither the Collateral Agent nor any other Secured Party
shall be chargeable with any of the obligations or liabilities of the Grantor.
The Grantor hereby agrees (i) that it will indemnify and hold the Collateral
Agent and the other Secured Parties harmless from and against any and all claims
with respect to the Collateral asserted before the taking
5
control of the relevant Collateral by the Collateral Agent pursuant to this
Section 5(b), or arising out of any act of, or omission to act on the part of,
any Person (other than the Collateral Agent or any other Secured Party) prior to
such taking of actual possession or control by the Collateral Agent, or arising
out of any act on the part of the Grantor or their respective agents before or
after the commencement of such actual possession or control by the Collateral
Agent; and (ii) the Collateral Agent and the other Secured Parties shall have no
liability or obligation to the Grantor arising out of any such claim except for
acts of willful misconduct or gross negligence or not taken in good faith. In
any action hereunder, the Collateral Agent shall be entitled to the appointment
of a receiver, without notice, to take possession of all or any portion of the
Collateral and to exercise such powers as the court shall confer upon the
receiver. Notwithstanding the foregoing, upon the occurrence and during the
continuation of an Event of Default, the Collateral Agent shall be entitled to
apply, without prior notice to the Grantor, except as may be required by
Applicable Law, any cash or cash items constituting Collateral in the possession
of the Collateral Agent to payment of the Obligations then due and payable. Any
such application by the Collateral Agent shall be made in accordance with
Section 5 (b) of this Agreement.
(c) Notification to Account Debtors. Upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent (i) shall notify
each other Secured Party of such Event of Default and (ii) may notify any
Persons in any way liable on any Accounts to make remittances to the Collateral
Agent of all sums due or to become due thereon and to collect and enforce
payment of all Accounts directly from the Persons liable thereon, by legal
proceedings or otherwise, and generally exercise all of the Grantor's rights and
remedies with respect to collection thereof.
(d) Application of Proceeds. The Grantor further agrees that the
Collateral Agent may apply any proceeds from the disposition of any of the
Collateral (i) first towards payment of any costs, fees and expenses accrued but
unpaid of the Collateral Agent included within the Obligations, (ii) second
towards payment of interest on the Notes, and (iii) third towards payment of
principal of the Notes. In the case of payments made by the Collateral Agent
pursuant to (ii) or (ii) of the preceding sentence, such payments shall be made
ratably to the Collateral Agent and each other Secured Party in proportion to
the principal amount of Notes held by the Collateral Agent and each such Secured
Party.
(e) Power of Attorney. Upon the occurrence and during the continuance
of an Event of Default (i) the Grantor does hereby irrevocably make, constitute
and appoint the Collateral Agent or any of its officers or designees its true
and lawful attorney-in-fact with full power in the name of the Collateral Agent
or such other Person to endorse any notes, checks, drafts, money orders or other
evidences of payment relating to the Collateral that may come into the
possession of the Collateral Agent, and to do any and all other acts necessary
or proper to carry out the intent of this Security Agreement and the grant of
the security interests hereunder, and the Grantor hereby ratifies and confirms
all acts that the Collateral Agent or its substitute shall properly do by virtue
hereof and (ii) the Grantor hereby further irrevocably makes, constitutes and
appoints the Collateral Agent or any of its officers or designees its true and
lawful attorney-in-fact in the name of the Collateral Agent, for the Collateral
Agent's benefit and for the ratable benefit of each other Secured Party, or
Grantor's name (A) to enforce all of Grantor's rights under and pursuant to all
agreements with respect to the Collateral, all for the
6
ratable benefit of the Collateral Agent and each other Secured Party, (B) to
enter into and perform such agreements as may be necessary in order to carry out
the terms, covenants and conditions of this Security Agreement that are required
to be observed or performed by Grantor, (C) to execute such other and further
mortgages, pledges and assignments of the Collateral, and related instruments or
agreements, as the Collateral Agent may reasonably require for the purpose of
perfecting, protecting, maintaining or enforcing the security interests granted
to the Collateral Agent and the other Secured Parties, and (D) to do any and all
other things necessary or proper to carry out the intention of this Security
Agreement and the grant of the security interests hereunder and the Grantor
hereby ratifies and confirms in advance all that the Collateral Agent as such
attorney-in-fact or its substitute shall properly do by virtue of this power of
attorney.
6. Financing Statements, etc. The Grantor hereby authorizes the
Collateral Agent to file financing statements and any amendments thereto or
continuations thereof and any other appropriate security documents or
instruments, and to give any notices reasonably necessary or desirable to
perfect the Lien and security interests of the Collateral Agent and the other
Secured Parties in the Collateral.
7. Further Assurances.
(a) The Grantor agrees that it will from time to time, on request of
the Collateral Agent and at its own cost and expense: (i) duly and promptly
execute and deliver, or cause to be duly executed and delivered, any and all
further instruments as may be appropriate in the reasonable judgment of the
Collateral Agent to carry out the provisions and purposes of this Security
Agreement, including, without limitation, a copyright security agreement, a
patent and trademark security agreement and account control agreements; (ii)
duly and promptly execute and deliver, or cause to be executed and delivered,
such further instruments as may be appropriate in the reasonable judgment of the
Collateral Agent, to provide the Collateral Agent and the other Secured Parties
with a perfected Lien in the Collateral and any and all documents (including,
without limitation, the execution, amendment or supplementation of any financing
statement and continuation statement or other statement) for filing under the
provisions of the Uniform Commercial Code of any jurisdiction and the rules and
regulations thereunder, or any Applicable Law of the United States or any other
jurisdiction which the Collateral Agent may deem reasonably necessary or
advisable, and perform or cause to be performed such other ministerial acts
which are necessary or advisable, from time to time, in order to grant and
maintain in favor of the Collateral Agent and the other Secured Parties the Lien
and security interest in the Collateral contemplated hereunder; and (iii)
promptly undertake to deliver or cause to be delivered to the Collateral Agent
from time to time, such other documentation, consents, authorizations and
approvals in form and substance reasonably satisfactory to the Collateral Agent,
as the Collateral Agent shall deem reasonably necessary or advisable to perfect
or maintain the Liens of the Collateral Agent or any other Secured Party.
(b) The Grantor hereby agrees to pay any and all stamp, registration,
recordation and similar taxes, fees or charges, reasonable fees and expenses of
the Collateral Agent's counsel and of any agents therefor and to indemnify the
Collateral Agent and each other Secured Party and each of their agents against
any and all liabilities with respect to or resulting from any delay in the
payment or omission to pay any such taxes, fees or charges, which may be
7
payable or determined to be payable in connection with the execution, delivery,
performance or enforcement of this Security Agreement and any other document or
instrument executed in connection herewith or the perfection of any rights or
security interests hereunder.
8. Notices. If any notification of intended disposition of any of the
Collateral or of any other act by the Collateral Agent is required by law and a
specific time period is not stated therein or herein, such notification given at
least ten (10) days before such disposition or act shall be deemed reasonably
and properly given. Notices and other communications provided for herein shall
be in the manner and at the addresses set forth in, and otherwise in accordance
with the Purchase Agreement.
9. Non-Waiver of Rights and Remedies. No delay or failure on the part
of the Collateral Agent or any other Secured Party in the exercise of any right
or remedy shall operate as a waiver thereof, no single or partial exercise by
the Collateral Agent or any other Secured Party of any right or remedy shall
preclude other or further exercises thereof or the exercise of any other right
or remedy and no course of dealing between the parties shall operate as a waiver
of any right or remedy of the Collateral Agent or any other Secured Party. All
remedies hereunder are cumulative and are not exclusive of any other remedies
provided by law.
10. Termination. The security interests granted hereunder shall
terminate when all the Obligations under each of the Notes have been fully and
indefeasibly paid and performed. At such time and upon request by the Grantor,
and at the sole expense of the Grantor, the Collateral Agent and any other
Secured Party, if necessary, shall take all reasonable action and do all things
reasonably necessary, including executing UCC termination statements, to
terminate the security interest granted to it or to any other Secured Party
hereunder (without representation or warranty by the Collateral Agent or any
other Secured Party of any nature whatsoever and wholly without recourse to the
Collateral Agent or any other Secured Party).
11. Governing Law. This Security Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
applicable to contracts to be fully performed within the State of New York.
12. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, THE GRANTOR HEREBY WAIVES, AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS SECURITY AGREEMENT OR THE
SUBJECT MATTER HEREOF OR ANY OTHER CREDIT DOCUMENT, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. THE
GRANTOR ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE COLLATERAL AGENT AND EACH
OTHER SECURED PARTY THAT THE PROVISIONS OF THIS SECTION 12 CONSTITUTE A MATERIAL
INDUCEMENT UPON WHICH THE COLLATERAL AGENT AND EACH OTHER SECURED PARTY HAS
RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THIS SECURITY AGREEMENT AND
THE OTHER CREDIT DOCUMENTS. THE COLLATERAL AGENT AND EACH OTHER SECURED PARTY
MAY FILE AN ORIGINAL COUNTERPART OR A
8
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
GRANTOR TO THE WAIVER OF THEIR RIGHTS TO TRIAL BY JURY.
13. SERVICE OF PROCESS. THE GRANTOR HEREBY IRREVOCABLY SUBMITS ITSELF
TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK IN NEW YORK
COUNTY AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF OR BASED UPON THIS SECURITY AGREEMENT OR THE SUBJECT
MATTER HEREOF BROUGHT BY THE COLLATERAL AGENT OR ANY OTHER SECURED PARTY OR ANY
OF EACH OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS. THE GRANTOR, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, (A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS
SECURITY AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY
SUCH COURT, AND (B) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT
OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE
COMPULSORY. THE GRANTOR HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT THE
ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT TO SECTION 8 HEREOF. THE
GRANTOR AGREES THAT ITS SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF
PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE COLLATERAL AGENT, FOR
ITSELF AND THE RATABLE BENEFIT OF EACH OTHER SECURED PARTY, AND FOR THE EXPRESS
BENEFIT OF EACH OTHER SECURED PARTY. FINAL JUDGMENT AGAINST A GRANTOR IN ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE, AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A
CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND OF
THE AMOUNT OF INDEBTEDNESS OR LIABILITY OF THE GRANTOR THEREIN DESCRIBED OR (B)
IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED, HOWEVER, THAT THE COLLATERAL AGENT OR ANY OTHER SECURED
PARTY MAY AT ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS
AGAINST ANY GRANTOR OR ANY OF ITS ASSETS IN ANY XXXXX XX XXXXXXX XXXXX XX XXX
XXXXXX XXXXXX OR OF ANY COUNTRY OR PLACE WHERE THE GRANTOR OR SUCH ASSETS MAY BE
FOUND.
14. Severability. This Security Agreement shall be interpreted in such
manner as to be effective and valid under Applicable Law, but if any provision
of this Security Agreement shall be prohibited by or invalidated under
Applicable Law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Security Agreement and the parties hereto
9
agree to negotiate in good faith a provision to replace the ineffective
provision, such provision to be as similar in effect and intent to the
ineffective provision as permissible.
15. Continuation and Reinstatement. This Security Agreement shall
remain in full force and effect and continue to be effective in the event any
petition is filed by or against any of the Grantor for liquidation or
reorganization, or in the event any of the Grantor becomes insolvent or makes an
assignment for the benefit of creditors or in the event a receiver or trustee is
appointed for all or any significant part of a Grantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant to
Applicable Law, rescinded or reduced in amount, or must otherwise be restored or
returned by the Collateral Agent or any other Secured Party, whether as a
"voidable preference," "fraudulent conveyance," or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Obligations shall
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
16. Amendment. No amendment, modification or waiver of any provision
of this Security Agreement or consent to any departure herefrom shall be
effective, irrespective of any course of dealing, unless the same shall be in
writing and signed by the Collateral Agent and by each other Secured Party
effected by such amendment, modification or waiver.
17. Successors and Assigns. All references herein to any of the
parties to this Security Agreement shall be deemed to include the successors and
assigns of such party; provided, however, that the Grantor may not assign any of
their rights or obligations hereunder without the prior written consent of the
Collateral Agent and Secured Parties holding a majority in principal amount of
the Notes, and all covenants, promises and agreements by or on behalf of the
Grantor which are contained herein shall inure to the benefit of the successors
and assigns of the Collateral Agent, as itself and for the ratable benefit of
each other Secured Party, and to the successors and assigns of each other
Secured Party.
18. Remedies Not Exclusive. The remedies conferred upon or reserved to
the Collateral Agent or any other Secured Party in this Security Agreement are
intended to be in addition to, and not in limitation of, any other remedy or
remedies available to the Collateral Agent or any other Secured Party. Without
limiting the generality of the foregoing, the Collateral Agent and each other
Secured Party shall have all rights and remedies of a secured party under
Article 9 of the UCC, the Uniform Commercial Code in effect in any jurisdiction
or any other Applicable Law.
19. Counterparts. This Security Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
constitute an original for all purposes, but all such counterparts taken
together shall constitute the same instrument.
20. Collateral Agent.
(a) The powers conferred on the Collateral Agent hereunder are solely
to protect its interest (on behalf of the Secured Parties) in the Collateral and
shall not impose any duty on it (or them) to exercise any such powers. Except
for reasonable care of any Collateral in
10
its possession and the accounting for moneys actually received by it hereunder,
the Collateral Agent shall have no duty as to any Collateral or responsibility
for (i) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any investment
property, whether or not the Collateral Agent has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
(b) The Collateral Agent is required to exercise reasonable care in
the custody and preservation of any of the Collateral in its possession;
provided, however, that the Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as Secured Parties holding a majority in
principal amount of the Notes reasonably request in writing, but failure of the
Collateral Agent to comply with any such request shall not in itself be deemed a
failure to exercise reasonable care.
IN WITNESS WHEREOF, each of the Grantor, the Collateral Agent and the
Secured Parties have caused this Security Agreement to be duly executed as of
the day and year first above written.
GRANTOR:
TALKPOINT COMMUNICATIONS INC.
By: _____________________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer
COLLATERAL AGENT: on behalf of himself and
the other Secured Parties.
------------------------------------------
Xxxxxxx X. Xxxxxxx
11
Exhibit C
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "Agreement") is entered into effective as
of the ___ day of October, 2003 (the "Effective Date"), by and between TalkPoint
Communications Inc., a Delaware corporation ("TalkPoint"), and Moneyline
Networks, LLC, a Delaware limited liability company ("Moneyline"; and together
with TalkPoint, the "Parties").
WHEREAS, concurrently with the execution of this Agreement, the Parties and
certain third party investors (the "Investors") are entering into a purchase and
subscription agreement (the "Purchase Agreement") dated as of the date hereof
pursuant to which the Investors will make a cash investment in TalkPoint in
exchange for, among other things, a portion of the shares (the "Shares") of
TalkPoint common stock currently held by Moneyline; and
WHEREAS, in connection with the above-described transfer by Moneyline of
the Shares and for good and valuable consideration exchanged in connection
herewith, the receipt and sufficiency of which are hereby acknowledged by the
Parties, TalkPoint wishes to provide, and Moneyline wishes to receive, certain
distribution and license rights with respect to TalkPoint's products on the
terms and conditions set forth in this Agreement.
NOW THEREFORE, the Parties agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. The definitions for the defined terms used in
this Agreement are contained in either the Glossary that is attached to this
Agreement as Appendix A or in the body of this Agreement.
ARTICLE II.
DISTRIBUTION OF TALKPOINT PRODUCTS
Section 2.1 Distributor Relationship.
TalkPoint hereby appoints Moneyline as its authorized distributor of the
TalkPoint Products to customers worldwide on the terms set forth in this
Agreement, provided however that Moneyline shall have no right to appoint any
subdistributor or to assign any of its rights hereunder (except in accordance
with Section 9.3 below).
(i) Except as otherwise provided herein, Moneyline shall be the
exclusive distributor of TalkPoint Products (including as to TalkPoint itself)
to customers (other than the Existing TalkPoint Customers as such term is
defined in Appendix A annexed hereto) in the Financial Services Industry.
(ii) MoneyLine shall be entitled to distribute on a non-exclusive
basis TalkPoint Products to the Existing TalkPoint Customers. In connection
therewith, TalkPoint and Moneyline shall coordinate their efforts and strategies
with respect to the Existing TalkPoint Customers, including, but not limited to,
with respect to account management, sales and pricing proposals and the
implementation of the foregoing and marketing efforts. Moneyline
1
acknowledges that TalkPoint shall maintain primary responsibility for
supervising and directing such efforts and strategies.
(iii) Moneyline will use commercially reasonable best efforts to
market the TalkPoint Products to the Financial Services Industry. Moneyline will
be deemed to have satisfied the foregoing obligation by meeting the threshold
described in Section 4.4 below. Moneyline makes no representations or
commitments regarding the volume of TalkPoint Products to be distributed under
this Agreement.
Section 2.2 Orders for TalkPoint Products.
(i) The Parties acknowledge that orders from Moneyline's customers
for TalkPoint Products ("Customer Orders") may be in the form of purchase orders
or other written agreements or may be in electronic form submitted by the
customer through a web browser interface; provided, however, that all such forms
of purchase orders or other agreements and all forms of electronic orders shall
be subject to TalkPoint's prior written approval.
(ii) The Parties will agree in writing on procedures regarding: (A)
tracking of Customer Orders, (B) fulfillment of Customer Orders, and (C) billing
to and collection from Moneyline's customers in connection with the Customer
Orders as well as returns and refunds.
(iii) Unless otherwise agreed by the Parties in writing, TalkPoint
will provide the TalkPoint Products directly to Moneyline's customers in
accordance with the delivery date and other terms of the applicable Customer
Order.
(iv) TalkPoint will be responsible for providing customer service and
support to the Moneyline's customers in accordance with TalkPoint's standard
policies or as may otherwise be agreed by the Parties in writing.
(v) Unless otherwise agreed by the Parties in writing and subject to
Moneyline's accounting policies, all revenue generated from Customer Orders will
constitute revenue of Moneyline excluding customer orders placed to TalkPoint by
Existing TalkPoint Customers.
Section 2.3 Branding.
(i) The TalkPoint Products sold by Moneyline at Moneyline's option
will contain TalkPoint or Moneyline branding. At Moneyline's request, TalkPoint
will cooperate with Moneyline in creating Moneyline-branded versions of the
TalkPoint Products.
(ii) In addition, Moneyline may sell private-labeled versions of the
TalkPoint Products that contain customer branding. TalkPoint will be responsible
for creating such private-labeled versions in accordance with the applicable
Customer Orders.
Section 2.4 Bundling of TalkPoint Products.
Moneyline may sell the TalkPoint Products bundled with Moneyline or third
party products and services; provided, however, that to the extent that
such TalkPoint Products are
2
bundled, no source codes will be disclosed or bundled. TalkPoint shall provide
to the extent reasonably requested by Moneyline development and other services
to bundle, embed, and integrate TalkPoint Products with such other products and
services and Moneyline shall reimburse TalkPoint on a time and materials basis.
ARTICLE III.
PRICING AND PAYMENT
Section 3.1 Price to Parties for TalkPoint Products.
The Parties will agree in writing on the prices to be charged by TalkPoint
to Moneyline in connection with the provision of TalkPoint Products to
Moneyline's customers.
Section 3.2 Payment.
Unless otherwise agreed by the Parties in writing, Moneyline will pay
TalkPoint for all TalkPoint Products provided to Moneyline's customers within
forty-five (45) days of receipt of TalkPoint's invoice. Overdue payments will
accrue interest, at the lesser of one percent (1%) per month or the maximum
allowable interest under applicable law, from due date until paid. All payments
will be made in U.S. dollars.
ARTICLE IV.
TERM AND TERMINATION
Section 4.1 Term.
The initial term of this Agreement will begin on the Effective Date and
will end on May 16, 2012. Upon expiration of the initial term and any additional
term this Agreement shall automatically renew for additional two (2) year terms,
unless terminated as of the end of any term by either Party by written notice to
the other Party at least ninety (90) days prior to the expiration of the initial
term, or any additional term hereof.
Section 4.2 Termination.
(i) After January 1, 2005, Moneyline may terminate this Agreement
for any reason or no reason at all upon ninety (90) days prior, written notice
to TalkPoint.
(ii) If either Party shall breach any material term or condition of
this Agreement and such breach shall not have been cured within ten (10) days
after written notice thereof shall have been given to the breaching Party, the
Party giving such notice may then give further written notice to such other
Party terminating this Agreement, in which event this Agreement and rights
granted hereunder shall terminate on the date specified in such further notice.
Section 4.3 Survival.
3
Section 3.2, Article 5 ("Intellectual Property"), Article 6
("Representations and Warranties"), Article 7 ("Indemnification"), Article 8
("Liability") and Article 9 ("Miscellaneous") shall survive any termination or
expiration of this Agreement.
Section 4.4 Termination of Exclusivity. If the average monthly revenues
received by TalkPoint on account of sales of TalkPoint Products as a result of
Customer Orders from Moneyline's customers during October, November and December
of any year (commencing 2004) are less than $100,000, the exclusive rights
granted under Section 2.1(i) shall become nonexclusive unless Moneyline pays
TalkPoint $300,000 less the revenue received for such three month period within
thirty (30) days after TalkPoint has given written notice of the shortfall to
Moneyline.
ARTICLE V.
INTELLECTUAL PROPERTY
Section 5.1 Ownership of Intellectual Property.
Moneyline acknowledges that the TalkPoint Products may incorporate
Intellectual Property of TalkPoint and its licensors. Nothing in this Agreement
constitutes a transfer of ownership of the Intellectual Property of either
Party.
Section 5.2 Licensing of Intellectual Property.
Effective upon occurrence of a License Trigger Event, TalkPoint will grant
Moneyline, subject to any licenses, (other than with respect to the Financial
Services Industries) granted by TalkPoint which are then in effect, a
non-exclusive, paid up, royalty-free, perpetual, worldwide, irrevocable license,
with the right to sublicense, under all Intellectual Property then owned by
TalkPoint or to which TalkPoint otherwise has the right to grant licenses, to
make, have made, sell, offer to sell, copy, modify, distribute and otherwise use
the TalkPoint Products.
Section 5.3 Source Code Escrow.
Promptly after the execution of this Agreement by both Parties, TalkPoint
and Moneyline will enter into an escrow agreement ("Escrow Agreement") with DSI
Technology Escrow Services, Inc. or such other escrow agent as may be agreed
upon by the Parties (the "Escrow Agent"). The Escrow Agreement shall provide
that TalkPoint will place a copy of the source code for any software included in
the TalkPoint Products (the "Source Code") into an escrow account to be
administered by the Escrow Agent. TalkPoint will use commercially reasonable
efforts to update the Source Code subject to Escrow with the source code for any
new versions, bug fixes or other modifications made to the Source Code.
TalkPoint and Moneyline shall each pay fifty percent (50%) of all fees charged
by the Escrow Agent. The Escrow Agreement shall also provide that Escrow Agent
will release the Source Code in its entirety (i) to Moneyline upon occurrence of
a License Trigger Event and (ii) to TalkPoint upon the termination of this
Agreement or the end of the term, whichever occurs first. Upon any release,
Moneyline shall have rights to use the Source Code pursuant to the license
granted under Section 5.2 above.
4
Section 5.4 License to TalkPoint Marks.
TalkPoint hereby grants Moneyline a non-exclusive, paid up, royalty-free,
worldwide, irrevocable license to use the trademarks and services marks under
which the TalkPoint Products are sold by TalkPoint (the "TalkPoint Marks") in
advertising and marketing materials and on Moneyline's web site for the purpose
of marketing the TalkPoint Products during the term of this Agreement.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Section 6.1 Mutual Representations and Warranties.
Each Party hereby represents and warrants that: (i) it has the power and
authority to enter into this Agreement and perform its obligations hereunder;
(ii) the execution and delivery of this Agreement have been duly authorized and
all necessary actions have been taken to make this Agreement a legal, valid and
binding obligation of such Party enforceable in accordance with its terms; and
(iii) the execution and delivery of this Agreement and the performance by such
Party of its obligations hereunder will not contravene or result in any breach
of the Certificate of Incorporation, Bylaws, certificate of formation or
operating agreement of such Party or of any agreement, indenture, license,
instrument or understanding or, to the best of its knowledge, result in any
violation of law, rule, regulation, statute, order or decree to which such Party
is bound or by which they or any of their property is subject.
Section 6.2 TalkPoint Product Warranties.
TalkPoint will notify Moneyline in writing of the standard product
warranties offered by TalkPoint to its customers in connection with the sale of
TalkPoint Products and of any changes to such warranties as may be made by
TalkPoint from time to time. Moneyline may pass such warranty on to its
customers who purchase TalkPoint Products. Moneyline will notify TalkPoint of
any claims received from its customers under such warranties, and TalkPoint will
be solely responsible for processing and honoring such claims and will indemnify
Moneyline in connection therewith.
ARTICLE VII.
INDEMNIFICATION
Section 7.1 Indemnity by TalkPoint.
TalkPoint shall indemnify, defend and hold harmless Moneyline and its
Affiliates and their respective officers, directors and employees (collectively,
the "Moneyline Indemnitees") from and against any claims, actions, causes of
action, loss, cost or liability (including reasonable attorneys' fees) with
respect to any third party claim to the extent: (i) arising from the provision
or use of any TalkPoint Product, including but not limited to any claims
associated with the failure to provide the TalkPoint Products in accordance with
the terms of a Customer Order, any product liability claims associated with the
TalkPoint Products, any claims associated with the transmission failures or
delays caused by or associated with the TalkPoint Products, and any claims
associated with any viruses or security holes caused by or associated with the
TalkPoint
5
Products, (ii) asserting that any TalkPoint Product infringes or misappropriates
any Intellectual Property of any third party, or (iii) arising from the
negligent or willful misconduct of TalkPoint.
Section 7.2 Indemnity by Moneyline.
Moneyline shall indemnify, defend and hold harmless TalkPoint and its
Affiliates and their respective officers, directors and employees (collectively,
the "TalkPoint Indemnitees") from and against any claims, actions, causes of
action, loss, cost or liability (including reasonable attorneys' fees) with
respect to any third party claim to the extent arising from the negligent or
willful misconduct of Moneyline.
Section 7.3 Indemnity Procedures.
If any claim or action is asserted that would entitle a Moneyline
Indemnitee or TalkPoint Indemnitee (each, an "Indemnitee") to indemnification
under either of the foregoing Sections 7.1 and 7.2 (a "Proceeding"), the
Indemnitee will give written notice thereof to the Party from whom
indemnification is sought (the "Indemnitor") promptly (and in any event within
fifteen (15) calendar days after the service of the citation or summons);
provided that the failure of the Indemnitee to give timely notice hereunder will
not affect rights to indemnification hereunder, except to the extent that
Indemnitor demonstrates actual damage caused by such failure. Indemnitor may
elect to direct the defense or settlement of any such Proceeding by giving
written notice to the Indemnitee, which election will be effective immediately
upon receipt by the Indemnitee of such written notice of election. The
Indemnitor will have the right to employ counsel reasonably acceptable to the
Indemnitee to defend any such Proceeding, or to compromise, settle or otherwise
dispose of the same, if the Indemnitor deems it advisable to do so, all at the
expense of the Indemnitor; provided that the Indemnitor shall not settle, or
consent to any entry of judgment in, any Proceeding without obtaining either:
(i) an unconditional release of the Indemnitee (and its Affiliates and each of
their respective officers, directors and employees) from all liability with
respect to all claims underlying such Proceeding; or (ii) the prior written
consent of the Indemnitee. An Indemnitee will not settle, or consent to any
entry of judgment, in any Proceeding without obtaining the prior written consent
of the Indemnitor. The Parties will fully cooperate with each other in any such
Proceeding and shall make available to each other any books or records useful
for the defense of any such Proceeding.
ARTICLE II.
LIABILITY
Section 8.1 Exclusion of Certain Damages.
EXCEPT WITH RESPECT TO EITHER PARTY'S INDEMNITY OBLIGATIONS UNDER ARTICLE
7 OF THIS AGREEMENT, IN NO EVENT AND NOTWITHSTANDING THE NATURE OF THE LEGAL
CLAIM, BE IT A CLAIM IN TORT, CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY,
PRODUCT LIABILITY, NEGLIGENCE, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES,
WHETHER OR NOT SUCH DAMAGES ARE REASONABLY FORESEEABLE, INCLUDING, WITHOUT
6
LIMITATION, A CLAIM FOR LOSS OF PROFIT, LOSS OF USE, LOSS OF GOODWILL, LOSS OF
OPPORTUNITY, OR OTHERWISE, HOWEVER CAUSED.
ARTICLE III.
MISCELLANEOUS
Section 9.1 Relationship with Other Agreements.
(i) The Parties agree that the Strategic Alliance Agreement and
the Technology License Agreements shall remain in effect in accordance with
their terms subject to Section 9.1(ii).
(ii) In the event of any conflict between this Agreement and the
Strategic Alliance Agreement, this Agreement will control. In the event of any
conflict between this Agreement and either of the Technology License Agreements,
this Agreement will control.
(iii) In the event of any termination or expiration of the Strategic
Alliance Agreement, the Managed Video Services and the Video Equipment shall
thereafter be deemed to be TalkPoint Products for the purposes of this
Agreement.
Section 9.2 Relationship of the Parties.
Each Party is an independent contractor of the other Party. Nothing in
this Agreement creates a partnership, joint venture or agency relationship
between the Parties.
Section 9.3 Successors and Assigns
None of the rights or obligations of either Party hereto may be assigned
or otherwise transferred without the written consent of the other Party, which
consent shall not be unreasonably delayed or denied . Notwithstanding the
foregoing, either Party may assign this Agreement (a) to a person or entity who
acquires substantially all of its business by sale, merger or otherwise; or (b)
to an Affiliate. The rights and obligations of the Parties hereto shall be
binding on and inure to the benefit of its successors and permitted assigns.
Section 9.4 Governing Law. This Agreement shall be governed, construed,
and interpreted in accordance with the laws of the State of New York without
regard to conflicts of law principles.
Section 9.5 Dispute Resolution. The Parties will resolve any dispute that
arises from this Agreement in accordance with the procedures set forth in this
Section. The Parties will first attempt in good faith to resolve the dispute by
negotiations (including, if necessary, by at least one in-person meeting of
representatives of the Parties). If the dispute has not been resolved within
thirty (30) days of the first in-person meeting (or within such longer period
that may be agreed upon by the Parties), then the dispute will be resolved by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association using expedited procedures by a single
arbitrator selected in accordance with the applicable rules as provided above
(provided, however, that the Parties will have the right to seek preliminary
injunctive relief, if appropriate, in a court of competent jurisdiction). The
arbitration will take
7
place in New York, New York or such other place as may be mutually agreed upon
by the Parties. Any decision or award resulting from the arbitration will be
final and binding on the Parties and judgment thereon may be entered in any
court having jurisdiction thereof.
Section 9.6 Notices. All notices under this Agreement will be sent by
hand delivery, overnight delivery service or certified or registered mail, or by
facsimile (promptly confirmed by dispatching the hard copy by hand delivery,
overnight delivery service or certified or registered mail) to the address of
the applicable party set forth below (or as otherwise notified by such party).
Notices will be deemed delivered upon receipt of signature or, in the case of
notice by facsimile, upon telephonic confirmation of receipt of the appropriate
number of pages and dispatch of the hard copy.
If to Moneyline:
Moneyline Networks, LLC
The Woolworth Building
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
If to TalkPoint:
TalkPoint Communications Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
Section 9.7 Entire Agreement. Subject to Section 9.1 above regarding the
Strategic Alliance Agreement and the Technology License Agreements, this
Agreement (including all Appendices) sets forth the entire understanding of the
Parties with respect to its subject matter and supersedes any and all prior
agreements, arrangements and understandings relating to the subject matter
hereof.
Section 9.8 Amendments and Waivers. This Agreement may not be amended
unless the amendment is in writing and signed by authorized representatives of
both Parties. A waiver of rights under this Agreement will not be effective
unless it is in writing and signed by an authorized representative of the Party
that is waiving the rights.
Section 9.9 Severability. If any term of this Agreement or the
application thereof is found invalid, illegal or unenforceable, the remainder of
this Agreement will remain in full force and effect, and the Parties will
negotiate in good faith to substitute a provision of like economic intent and
effect.
Section 9.10 Rights of Third Parties. Nothing in this Agreement, express
or implied, is intended to confer upon any person other than the Parties hereto
or their respective permitted successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
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Section 9.11 Counterparts and Facsimile Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. A
signature received via facsimile shall be deemed an original for all purposes.
Section 9.12 Titles and Subtitles. The titles and subtitles used is this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(signature page follows)
9
IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the Effective Date.
TALKPOINT COMMUNICATIONS INC.
By:_______________________________
Name:
Title:
MONEYLINE NETWORKS, LCC
By:_______________________________
Name:
Title:
APPENDIX A
GLOSSARY
"Affiliate" means, with respect to a Party, any corporation, company,
partnership, joint venture, association or other entity, that directly or
indirectly controls, is controlled by or is under common control with such
Party.
"Existing TalkPoint Customers" means Goldman, Sachs, Xxxxxx Xxxxxxx, Bear
Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxx, Bank of America and AIG.
"Financial Services Industry" means any and all entities, whose primary business
activities are investments, brokerage, trust and fiduciary services, venture
capital, consumer, commercial and investment banking, money management or other
similar financial services.
"Intellectual Property" means all proprietary rights and other rights in and to:
(i) patents, including design patents and utility patents, reissues, divisions,
continuations-in-part and extensions thereof, in each case including all
applications therefor; (ii) inventor's certifications and invention disclosures;
(iii) works of authorship, whether copyrightable or not, copyrights, copyright
registrations and applications of registration of copyrights and all renewals,
modifications and extensions thereof, mask works, moral rights and design
rights; (iv) computer systems, including programs, software, object and source
code, databases, algorithms, and documentation therefor, in each case including
all copyrights therefor; (v) trade secrets and other protectable information,
including ideas, formulas, compositions, technical documentation, operating
manuals and guides, plans, designs, sketches, inventions, product
specifications, engineering reports and drawings, manufacturing and production
processes and techniques; drawings, specifications, research records, invention
records and technical data; and all other know-how, protected by patent,
copyright or trade secret law; and (vi) registrations of, and applications to
register, any of the foregoing with any governmental authority and any renewals
or extensions thereof; provided that, "Intellectual Property" shall specifically
exclude all trademarks, service marks, brand names, certification marks, trade
dress, assumed names, trade names and other indications of origin, Internet
domain names including all applications for registration thereof and all
renewals, modifications and extensions thereof ("Trademarks").
"License Trigger Event" means the occurrence of the following during the term of
this Agreement: (i) cessation or dissolution of TalkPoint's business or (ii)
TalkPoint commencing a voluntary bankruptcy proceeding under Title 11 of the
United States Code or (iii) repeated failure of TalkPoint to provide and/or
support the TalkPoint Products in accordance with the terms of the applicable
Customer Orders and TalkPoint's then-current support policy) or (iv) TalkPoint's
inability to provide services in a commercially reasonable manner.
"Managed Video Services" shall have the meaning ascribed to it in the Strategic
Alliance Agreement.
"Parties" means Moneyline and TalkPoint.
"Party" means either Moneyline or TalkPoint, as the case may be.
"Strategic Alliance Agreement" means that certain Strategic Alliance Agreement
dated May 16, 2002 by and among Moneyline, TalkPoint (formerly known as Video
Network Communications, Inc.) and B2B Video Network Corp.
"TalkPoint Products" means all current and future products and services of
TalkPoint and its Affiliates, including but not limited to those products and
services identified on Appendix B to this Agreement; provided, however, that:
(i) the TalkPoint Products shall not include Managed Video Services or Video
Equipment for as long as the Strategic Alliance Agreement is in effect, and (ii)
upon any termination or expiration of the Strategic Alliance Agreement, the
TalkPoint Products shall be deemed to include the Managed Video Services and the
Video Equipment.
"Technology License Agreements" means (i) that certain Technology License
Agreement dated May 16, 2002 by and among Moneyline and TalkPoint (formerly
known as Video Network Communications, Inc.), and (ii) that certain Technology
License Agreement dated May 16, 2002 by and among Moneyline and B2B Video
Network Corp.
"Video Equipment" shall have the meaning ascribed to it in the Strategic
Alliance Agreement.
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APPENDIX B
CERTAIN TALKPOINT PRODUCTS
. Activecast - webcasting solution and related production services
. TalkPoint -
. TalkPoint Express -
. audio conferencing and video bridging services
The Parties agree to update Appendix B from time to time as new TalkPoint
Products become available.
