WAIVER AND INDEMNITY AGREEMENT
Agreement made this 30th day of January
2009 by and among Panel Intelligence, LLC a Delaware limited liability company
(“Surviving Entity”), MCF Corporation, a Delaware corporation (“MCF”), the
former stockholders of MedPanel, Inc. who are signatories hereto and Xxxxxxx
Xxxxx, as representative of the Stockholders of MedPanel who are not signatories
hereto (“Xxxxx”).
WHEREAS,
through a series of transactions MedPanel Inc., a Delaware corporation
(“MedPanel”), merged with Surviving Entity pursuant to that certain Agreement
and Plan of Merger dated as of November 6, 2006 (“Merger Agreement”) between
MedPanel’s shareholders (“Stockholders”) and other parties, including
MCF.
WHEREAS, pursuant to the Merger
Agreement, the Stockholders of MedPanel received cash, shares of the common
stock of MCF and certain contingent rights to receive (i) “Incentive
Consideration” pursuant to Section 2.7.2 of the Merger Agreement if the
Surviving Entity’s cumulative revenue and EBITDA were in excess of a threshold
amount determined on January 1, 2010 (“Threshold”) or alternatively, (ii)
consideration pursuant to Section 2.7.3 of the Merger Agreement in connection
with a “Change of Control” of MCF.
WHEREAS, it is extremely unlikely that
the Threshold would be reached as of January 1, 2010.
WHEREAS,
a former vendor of MedPanel has asserted claims against the Surviving Entity in
the amount of 127,000 pounds sterling for which MCF and/or the Surviving Entity
might seek reimbursement from such Stockholders (“Vendor Claim”).
WHEREAS,
the IRS is currently auditing the accounts of MedPanel which could lead to a
claim by MCF or the Surviving Entity against the Stockholders.
WHEREAS, Surviving Entity generated
negative cash flow in 2008 and requires an investment by MCF of at least
$100,000 within the next 30 days, and of at least $500,000 in 2009, in order to
continue its operations.
WHEREAS, MCF is unable to continue to
fund Surviving Entity’s operating deficits, and as a result, Surviving Entity
will be required to cease operations.
WHEREAS, Panel Intelligence
LLC a Massachusetts limited liability company, has entered into the
Asset Purchase Agreement dated as of January 30, 2009 pursuant to which Buyer
shall acquire all of Surviving Entity’s assets (“Asset Purchase
Agreement”).
WHEREAS, as the sole member of
Surviving Entity, MCF has determined that it is in its best interests to consent
to Surviving Entity’s sale of substantially all of its assets to Buyer and
thereafter to dissolve Surviving Entity and seek additional market capital from
outside investors so as to enable MCF to remain in operation.
WHEREAS, Xxxxxxx Xxxxx, in his capacity
as Stockholder Representative, is authorized to act on behalf of the former
Stockholders of MedPanel.
WHEREAS, the Stockholders and the
Stockholder Representative acknowledge and agree that upon the sale of Surviving
Entity’s assets to Buyer and the dissolution of Surviving Entity, the Incentive
Consideration payment and/or the Change of Control payment, to which the
Stockholders could theoretically become entitled in the future, shall
terminate.
WHEREAS, the Stockholders and
Stockholder Representative, acknowledge that notwithstanding the termination of
the Incentive Consideration payment and/or the Change of Control payment, MCF
may be unable to obtain additional market capital from outside investors so as
to enable MCF to remain in operation unless it obtains their express waiver of
any rights they may have in the future to the Incentive Consideration payment
and/or Change of Control payment.
NOW,
THEREFORE, with reference to the foregoing Recitals and in consideration of the
mutual promises hereinafter set forth, it is agreed as follows:
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1.
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The
Stockholders and the Stockholder Representative hereby waive
unconditionally and without reservation any and all rights the
Stockholders may have to the Incentive Consideration Amount and/or the
Change of Control Amount (as more particularly described in the Merger
Agreement.)
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2.
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MCF
shall not seek any reimbursement or indemnification from the Stockholders
and hereby release them from any and all liability to MCF or Surviving
Entity with respect to the Vendor Claim and the IRS audit or any tax
liabilities that arise in connection
therewith.
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The
Parties, each intending to be legally bound by this Agreement, have executed
this Agreement effective as of the first date identified in the first sentence
of this Agreement
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Xxxxxxx
X. Xxxxx, in his capacity as Stockholder Representative
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Xxxxxxx
X. Xxxxx, Stockholder
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Xxxx
Xxxxxxxx, Stockholder
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Xxxxxx
Brick, Stockholder
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Xxxxx
Xxxx, Stockholder
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MCF
Corporation (nka Xxxxxxxx Curhan Ford Group, Inc.)
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BY:
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Xxxxx
Xxxxxxx, Chief Financial Officer
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