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EXHIBIT 4.5
MASTER AGREEMENT
DATED AS OF DECEMBER 3, 1999,
AMONG
STOCKPOINT, INC.,
AS THE COMPANY,
AND
JOHN PAPPAJOHN,
GERALD M. KIRKE
IOWA FARM BUREAU FEDERATION
DERACE SCHAFFER
MATTHEW P. KINLEY
DOMINION SECURITIES INC.
MICHAEL J. RICHARDS
JOSEPH DUNHAM
AS THE GUARANTORS,
AND
EQUITY DYNAMICS, INC.,
AS THE AGENT FOR THE GUARANTORS.
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TABLE OF CONTENTS
SECTION 1. CREDIT SUPPORT AGREEMENTS.........................................1
SECTION 2. AGENT.............................................................4
2.1. ACTIONS........................................................4
2.2. EXCULPATION....................................................4
2.3. SUCCESSOR......................................................5
SECTION 3. WARRANTS..........................................................5
3.1. ISSUANCE.......................................................5
3.2. REGISTRATION RIGHTS............................................6
SECTION 4. CLOSING...........................................................6
SECTION 5. REPRESENTATIONS AND WARRANTIES OF COMPANY.........................6
5.1. ORGANIZATION...................................................6
5.2. CORPORATE AUTHORIZATION; ENFORCEABILITY........................6
5.3. NO CONFLICT....................................................6
5.4. CAPITALIZATION.................................................7
5.5. FINANCIAL INFORMATION..........................................8
5.6. SECURITIES LAWS................................................8
5.7. TITLE TO ASSETS................................................8
5.8. REAL PROPERTY..................................................9
5.9. INTELLECTUAL PROPERTY RIGHTS...................................9
5.10. COMPLIANCE WITH LAWS; GOVERNMENTAL AUTHORIZATIONS.............9
5.11. MATERIAL AGREEMENTS...........................................9
5.12. LITIGATION...................................................10
5.13. SOLVENCY.....................................................10
5.14. ENVIRONMENTAL MATTERS........................................10
5.15. TAX MATTERS..................................................10
5.16. ERISA........................................................11
5.17. DISCLOSURE...................................................11
SECTION 6. REPRESENTATIONS AND WARRANTIES OF GUARANTORS.....................11
6.1. INVESTMENT INTENT.............................................11
6.2. DUE ORGANIZATION AND REQUISITE POWER..........................12
6.3. ACTION AND EXECUTION..........................................12
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6.4. NO CONFLICT...................................................12
SECTION 7. PRIOR OR SIMULTANEOUS ACTIONS....................................12
SECTION 8. COVENANTS........................................................13
8.1. ACCESS TO RECORDS.............................................13
8.2. FINANCIAL REPORTING; DRAWS ON LINE OF CREDIT..................13
8.3. PAYMENT; PREPAYMENT...........................................14
8.4. PAYMENT OF OBLIGATIONS........................................14
8.5. INSURANCE.....................................................14
8.6. NOTICE OF DISPUTES, MATERIAL ADVERSE CHANGE...................15
8.7. CONDUCT OF BUSINESS...........................................15
8.8. DEBT..........................................................15
8.9. RESTRICTED PAYMENTS...........................................15
8.10. NEGATIVE PLEDGE..............................................16
8.11. TERMINATION..................................................16
SECTION 9. SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS...........16
SECTION 10. INDEMNIFICATION.................................................16
SECTION 11. PURCHASE OF BANK'S RIGHTS AND INTERESTS; EVENTS OF DEFAULT......17
SECTION 12. FEES AND EXPENSES...............................................18
SECTION 13. CONFIDENTIALITY.................................................18
SECTION 14. ASSIGNMENT; PARTIES IN INTEREST.................................18
SECTION 15. ENTIRE AGREEMENT................................................18
SECTION 16. FURTHER ASSURANCES..............................................19
SECTION 17. NOTICES.........................................................19
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SECTION 18. AMENDMENTS......................................................21
SECTION 19. COUNTERPARTS....................................................21
SECTION 20. HEADINGS, GENDER, TENSE.........................................21
SECTION 21. GOVERNING LAW, JURISDICTION.....................................21
SECTION 22. WAIVER OF JURY TRIAL............................................21
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MASTER AGREEMENT dated as of December 3, 1999, among (a)
STOCKPOINT, INC., a Delaware corporation (the "Company"), and (b)(i)
JOHN PAPPAJOHN ("Pappajohn") (ii) GERALD M. KIRKE, IOWA FARM BUREAU
FEDERATION, DERACE SCHAFFER, MATTHEW P. KINLEY, DOMINION SECURITIES
INC., MICHAEL J. RICHARDS, JOSEPH DUNHAM (together with Pappajohn, the
"Guarantors"), and (c) EQUITY DYNAMICS, INC., an Iowa corporation, as
agent (the "Agent") for the Guarantors.
RECITALS
WHEREAS, the Company requested that the Guarantors execute guarantees in favor
of and/or arrange for the issuance of standby letters of credit or pledge
certificates of deposit (collectively, the "Credit Support Agreements") naming
Norwest Bank Iowa, National Association, or any successor or assign thereof
approved by the Agent (the "Bank") as beneficiary or pledgee in connection with
a line of credit with a maximum principal amount of $2,500,000 (the "Facility")
to be made available by the Bank to the Company;
WHEREAS, the Company offered to issue warrants in the form attached hereto as
Exhibit A ("Warrants") to purchase its common stock, $.01 par value (the "Common
Stock") to the Guarantors if they would provide the Credit Support Agreements;
WHEREAS, the Guarantors agreed to provide the Credit Support Agreements in
accordance with terms and conditions set forth herein.
ACCORDINGLY, the parties agree as follows:
SECTION 1. CREDIT SUPPORT AGREEMENTS.
(a) Upon the terms and subject to the conditions set forth in the this
Agreement, the Warrants, and the registration rights agreement in the form
attached hereto as Exhibit B (the "Registration Rights Agreement") (the
"Documents"), the Guarantors shall, for the benefit of the Company, arrange
for the issuance by one or more institutions acceptable to the Bank of
standby letters of credit or, in the alternative, pledge such Guarantors'
right, title and interest in and to certificates of deposit (each a
"Guarantor Commitment") in the aggregate amount of $2,500,000 naming the
Bank as beneficiary or pledgee, as the case may be, thereunder. The maximum
Guarantor Commitment of each of the Guarantors shall be as follows: (i)
Pappajohn - $1,250,000; (ii) Gerald M. Kirke - $500,000; Iowa Farm Bureau
Federation - $250,000; Derace Schaffer - $250,000; Matthew P. Kinley -
$100,000; Dominion Securities Inc. - $100,000; Michael J. Richards -
$25,000 and Joseph Dunham - $25,000. Each Guarantor's Commitment as a
proportion of the maximum amount of the loans (the "Loans") available under
the Facility ($2,500,000.00) shall be its "Pro Rata Share." In addition, if
necessary, Pappajohn shall execute a personal guaranty (the "Pappajohn
Guaranty") of the Company's obligations to the Bank in an amount agreed to
by Pappajohn and the Bank.
(b) The obligation of the Guarantors to provide the Credit Support
Agreements shall be subject to the following conditions precedent:
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(i) the Company's execution and delivery of this Agreement and the
Documents;
(ii) the Company's execution and delivery to the Bank of (A) a
security agreement, in form satisfactory to the Agent, which includes
provision for security agreements in favor of the Bank by each
subsidiary of the Company (the "Bank Security Agreement"); (B) a pledge
agreement, in form satisfactory to the Agent (the "Pledge Agreement");
(C) a conditional assignment of intellectual property covering
trademarks, in form satisfactory to the Agent (the "Bank Intellectual
Property Assignment," and, together with Bank Security Agreement,
Pledge Agreement and all documents executed in connection therewith,
the "Bank Security Documents"); (D) the Credit Agreement dated December
3, 1999, between the Company and the Bank (the "Credit Agreement"); and
(E) the Promissory Note dated December 3, 1999, executed by the Company
in favor of the Bank (the "Promissory Note").
(iii) the Company's payment to the Agent of the Agent's costs and
expenses incurred in connection herewith and the Documents, as provided
in Section 12 below;
(iv) the Bank's agreement with the Guarantors, satisfactory to the
Guarantors, regarding the respective remedies of the Bank and the
Guarantors with respect to the Facility;
(v) the Company's delivery to the Bank of waivers by the Series C
Debenture Holders to the transactions contemplated by the Agreement, in
a form satisfactory to the Agent;
(vi) the Company's delivery to the Bank of a release of lien on form
UCC-3 by Iowa State Bank and Trust and Robert Staib, and a
confirmation, waiver and consent by Northern Trust to the first lien
position by the Bank, in each case in a form satisfactory to the Agent;
(vii) review and approval by the Agent of all outstanding liens on the
Company's assets by CEBA, Kirkwood Community College and Berthel
Fisher;
(viii) a cash flow budget in form and content acceptable to the Agent,
and attached hereto as Exhibit C (the "Budget");
(ix) evidence satisfactory to the Agent that the Settlement Agreement
and Release by and between the Company and Robert Staib has been
executed;
(x) satisfaction by the Agent with the senior management team and
structure and long term management plan;
(xi) evidence satisfactory to the Agent that certain California-based
employees received grants under the Employee option plan; and
(xiii) confirmation satisfactory to Agent of employment agreements of
William Staib and other key management.
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(c) The Company has agreed to pay the Bank all sums due and owing in
connection with the Facility. The Company realizes and understands that the
reason it was able to obtain the Facility was due to the willingness of the
Guarantors to provide the Credit Support Agreements in respect of the
Company's obligations to the Bank. The Company agrees that at any time the
Guarantors, individually, or collectively, deem themselves to be insecure
they may acquire the position of the Bank in the Facility by paying the
obligation of the Company to the Bank. The Company fully agrees that upon
acquisition of the Bank's position or the Bank's exercise of its remedies
against the Guarantor Commitments and/or Pappajohn Guaranty, the Guarantors
shall be subrogated to all rights of the Bank under the Company's
agreements with the Bank (including, without limitation, the Credit
Agreement, the Promissory Note, and the Bank Security Documents; together,
the "Bank Documents") whether or not the Bank may have canceled all or any
portion of the Company's obligations to the Bank under the Facility.
(d) As between the Guarantors, each of the Guarantors agrees that no
Guarantor should bear a proportionately greater loss under the Credit
Support Agreements than any other Guarantor. Therefore, each of the
Guarantors shall bear any losses under the Credit Support Agreements in
accordance with its Pro Rata Share. Each Guarantor promises each other
Guarantor that it will pay, on demand, his or its Pro Rata Share of the
Company's obligations to the Bank, in connection with such party's
obligations under the Credit Support Agreements, either to the Bank, if the
obligations under the Facility have not been satisfied, or to another
Guarantor who has made payment to the Bank in satisfaction of the Company's
obligations under the Facility. The demand for payment made by any
Guarantor to any other Guarantor shall be made in writing to the Agent,
accompanied by proof of the demanding party's payment under a Credit
Support Agreement. Each Guarantor (an "Indemnifying Guarantor") hereby
agrees to indemnify and hold harmless each other Guarantor from and against
any and all losses, claims, damages or liabilities, joint or several, which
such other party may suffer by reason of the failure of an Indemnifying
Guarantor to pay his or its Pro Rata Share on demand. The Company promises
to pay each Guarantor any and all sums which that Guarantor has paid to the
Bank in satisfaction of all or any portion of the Company's obligations to
the Bank when such obligations are due, plus all costs, including, without
limitation, interest and reasonable attorney's fees, incurred in connection
therewith.
(e) In the event the indemnification referred to in the immediately
preceding paragraph above is determined to be invalid or unenforceable for
any reason whatsoever, each Guarantor agrees that the common law principle
of contribution shall apply and that each Guarantor shall be obligated to
contribute his or its Pro Rata Share towards satisfaction of any payment
made or to be made under the Credit Support Agreements or made by any other
Guarantor, if the payments by such other Guarantor exceeds such other
Guarantor's Pro Rata Share of the Company's obligations to the Bank.
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SECTION 2. AGENT.
2.1. ACTIONS
(a) Each Guarantor hereby irrevocably appoints the Agent as its agent under
and for purposes of this Agreement and the Documents. Each Guarantor
authorizes the Agent to act on behalf of such Guarantor under this
Agreement and each Document and, in the absence of written instructions
from the Guarantors received from time to time by the Agent (with respect
to which the Agent agrees that it will comply, except as otherwise provided
in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are delegated to or required of the
Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Guarantor hereby indemnifies and holds
harmless (which indemnity shall survive any termination of this Agreement)
the Agent, and the directors, officers, agents or employees of the Agent,
from and against any and all liabilities, obligations, losses, damages,
claims, costs or expenses of any kind or nature whatsoever which may at any
time be imposed on, incurred by, or asserted against, the Agent in any way
relating to or arising out of this Agreement and any Documents, including,
without limitation, attorneys' fees, and as to which the Agent is not
indemnified or reimbursed by the Company. The Agent shall not be required
to take any action hereunder or under any Document, or to prosecute or
defend any suit in respect of this Agreement or any Document, unless it is
indemnified hereunder to the Agent's satisfaction. If any indemnity in
favor of the Agent shall be or become, in the Agent's determination,
inadequate, the Agent may demand additional indemnification from the
Guarantors and cease to act as Agent hereunder until such additional
indemnity is given.
(b) Each Guarantor acknowledges that it has, independently and without
reliance upon the Agent, and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and the transactions contemplated hereby. Each
Guarantor also acknowledges that it will, independently and without
reliance upon the Agent, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this Agreement.
2.2. EXCULPATION.
Neither the Agent nor any of its directors, officers, employees or agents shall
be liable to any Guarantor for any action taken or omitted to be taken by it
under this Agreement or any Document, or in connection herewith or therewith,
except for its own willful misconduct or gross negligence, nor shall they be
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Document, nor for the creation, perfection or priority of any liens
purported to be created by any of the Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by the Company of its obligations
hereunder or under any Document. Any such inquiry which may be made by the Agent
shall not obligate it to make any further inquiry or to take any action. The
Agent shall be
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entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agent believes to
be genuine and to have been presented by a proper person.
2.3. SUCCESSOR.
The Agent may resign as such at any time upon at least 30 days' prior notice to
the Company and all Guarantors. If the Agent at any time shall resign, the
Guarantors may appoint another Guarantor as a successor Agent which shall
thereupon become the Agent hereunder. If no successor Agent shall have been so
appointed by the Guarantors, and shall have accepted such appointment, within 30
days after the retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Guarantors, appoint a successor Agent, which shall
be one of the Guarantors. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and assignment as
such successor Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Agent, and the, retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation
hereunder as the Agent the provisions of this Section shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the Agent
under this Agreement.
SECTION 3. WARRANTS.
3.1. ISSUANCE.
At the Closing (defined below in Section 4), the Company shall sell to the
Guarantors, and the Guarantors shall purchase from the Company, Warrants to
purchase an aggregate of 500,000 shares of the Common Stock (the "Warrant
Shares") upon the terms set forth in the Warrants. Each Guarantor shall purchase
a Warrant at the purchase price stated below to purchase the number of Warrant
Shares set forth below:
Common Shares Guarantors Purchase
Guarantor Exercisable Price
- ---------------------------------------------------------- ------------------------- ---------------------------------
Pappajohn 250,000 $2,500
Gerald M. Kirke 100,000 $1,000
Iowa Farm Bureau Federation 50,000 $500
Derace Schaffer 50,000 $500
Matthew P. Kinley 20,000 $200
Dominion Securities Inc. 20,000 $200
Michael J. Richards 5,000 $50
Joseph Dunham 5,000 $50
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3.2. REGISTRATION RIGHTS.
At the Closing, the Company and the Guarantors shall enter into the Registration
Rights Agreement.
SECTION 4. CLOSING.
The closing of the Transactions (the "Closing") shall take place at the offices
of BELIN LAMSON McCORMICK ZUMBACH FLYNN, a Professional Corporation, The
Financial Center, 666 Walnut Street, Suite 2000, Des Moines, Iowa 50309,
simultaneously with the execution and delivery of this Agreement and the other
Documents to be executed and delivered at Closing.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF COMPANY.
The Company hereby represents and warrants to the Guarantors as follows:
5.1. ORGANIZATION.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease and operate the assets
used in its business, to carry on its business as presently- conducted, to enter
into the Documents, to perform its obligations thereunder, and to consummate the
transactions contemplated thereby. Attached as Schedule 5.1 are correct and
complete copies of the Certificate of Incorporation and the Bylaws of the
Company, as in effect on the date of the Closing (the "Certificate of
Incorporation" and the "Bylaws," respectively).
5.2. CORPORATE AUTHORIZATION; ENFORCEABILITY.
The Company has taken all corporate action necessary to authorize its execution
and delivery of the Documents and the Bank Documents, its performance of its
obligations thereunder, and its consummation of the transactions contemplated
thereby. Each Document and each Bank Document has been executed and delivered by
an officer of the Company in accordance with such authorization. Each Document
and each Bank Document constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer, and
similar laws affecting creditors' rights generally, and the effect of general
principles of equity.
5.3. NO CONFLICT.
The execution and delivery by the Company of the Documents and the Bank
Documents, its consummation of the transactions contemplated thereby, and its
compliance with the provisions thereof, will not (i) violate or conflict with
its Certificate of Incorporation or Bylaws, (ii) violate, conflict with, or give
rise to any right of termination, cancellation, or acceleration under any
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material agreement, lease, security, license, permit, or instrument to which the
Company is a party, or to which it or any of its assets is subject (except where
same would not individually or in the aggregate have a Material Adverse Effect
(as defined below)), (iii) result in the imposition of any Encumbrance on any
asset of the Company, other than pursuant to the Bank Documents and the
Documents, (iv) violate or conflict with any Laws, which violation would cause a
Material Adverse Change (as defined below), or (v) require any consent, approval
or other action of, notice to, or filing with any entity or person (governmental
or private), except for those that have been obtained or made, or where the
failure to obtain such consent or approval would not cause a Material Adverse
Change.
"Encumbrance" means any security interest, mortgage, lien, pledge, charge,
easement, reservation, restriction, or similar right of any third party except
for Encumbrances in favor of the Bank in connection with the Facility.
"Laws" means all laws, rules, regulations, ordinances, orders, judgments,
injunctions and decrees. "Material Adverse Change" means any material adverse
change in the business, operations, properties, assets, or financial condition
of the Company. "Material Adverse Effect" means a material adverse effect on the
business, financial condition, assets, liabilities, property or operations of
the Company, or a material impairment of the Company's ability to perform its
obligations under the Documents.
5.4. CAPITALIZATION.
(a) The authorized equity securities of the Company consist of 25,000,000
shares of capital stock, including 20,000,000 shares of common stock, $.01
par value, of which there are 2,172,028 shares issued and outstanding,
5,000,000 shares of preferred stock, initially undesignated as to terms, of
which the Company has designated the terms and preferences of 320,000
shares of Convertible Series A Voting Preferred Stock (of which there are
320,000 shares outstanding), 282,720 shares of Convertible Series B Voting
Preferred Stock (of which there are 282,720 shares outstanding), and
1,179,540 shares of Convertible Series C Voting Preferred Stock (of which
there are 773,254 shares outstanding). The persons set forth on Schedule
5.4 own the shares and common stock equivalents set forth opposite such
persons' names. All of the outstanding equity securities of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. Except for the Documents and the common stock equivalents
set forth on Schedule 5.4 there are no agreements of any sort relating to
the issuance, sale, or transfer of any equity securities or other
securities of the Company. None of the outstanding equity securities or
other securities of the Company was issued in violation of the Securities
Act or any other legal requirement. Except as set forth in paragraph (b)
below, the Company does not own, nor has any contract to acquire, any
equity securities or other securities of any person or any direct or
indirect equity or ownership interest in any other business. The fully
diluted common stock equivalents of the Company outstanding before issuance
of the Warrants do not exceed 7.1 million shares.
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(b) The Company owns 100% of the capital stock of Neural, Inc. and Ethos
Corporation (collectively, the "Subsidiaries", and the capital stock of the
Subsidiaries being the "Subsidiary Stock"). The Subsidiary Stock is free
and clear of all Encumbrances.
5.5. FINANCIAL INFORMATION.
The Company has delivered to Agent: (a) audited consolidated balance sheets of
the Company as at December 31 for each of the years 1996 through 1998, and the
related audited consolidated statements of income, changes in stockholders'
equity, and cash flow for each of the fiscal years then ended, including in each
case the notes thereto and (b) an unaudited consolidated balance sheet of the
Company as at September 30, 1999 (the "Interim Balance Sheet") and the related
unaudited consolidated statements of income, changes in stockholders' equity,
and cash flow for the nine months then ended. Such financial statements and
notes fairly present the financial condition and the results of operations,
changes in stockholders' equity, and cash flow of the Company as at the
respective dates of and for the periods referred to in such financial
statements, all in accordance with United States generally accepted accounting
principles consistently applied ("GAAP"). No financial statements of any persons
other than the Company and the Subsidiaries are required by GAAP to be included
in the consolidated financial statements of the Company.
5.6. SECURITIES LAWS.
Based upon the representation of each Guarantor contained in Section 6.1 below,
the Transactions contemplated hereby are exempt from registration under the
Securities Act.
5.7. TITLE TO ASSETS.
The Company has good and marketable title to all of its assets, free and clear
of all encumbrances except for Permitted Liens (defined below). Such assets are
in good operating condition and repair (ordinary wear and tear excepted), and
are suitable for their intended use in the business of the Company as conducted
at the date hereof. "Permitted Liens" means (i) liens in favor of the Bank
granted in connection with the Facility and in favor of the Agent granted in
connection herewith, (ii) liens arising by operation of law in the ordinary
course of business that, individually and in the aggregate, do not in any
material respect interfere with the use or value of any of the assets subject
thereto, (iii) liens for taxes not yet due and payable or that are being
contested in good faith, (iv) liens created by the Documents, (v) purchase money
liens to finance property of the Company acquired in the ordinary course of
business, (vi) liens existing on the date hereof listed in Schedule 5.7 or
incurred in connection with extension or renewal of indebtedness secured by such
liens, (vii) liens consisting of deposits or pledges to secure the performance
of trade contracts, bids, leases, public or statutory obligations and similar
obligations incurred in the ordinary course of business, and (viii) any
judgment, attachment or similar lien unless the judgment secured is not covered
by insurance or not discharged or stayed or bonded pending appeal or vacated
within 30 days of entry thereof.
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5.8. REAL PROPERTY.
The Company does not own, directly or indirectly, any fee title to real
property.
5.9. INTELLECTUAL PROPERTY RIGHTS.
The Company owns or is licensed to use, and has the right to bring infringement
actions with respect to, all material patents, trademarks, copyrights, service
marks, and applications and registrations therefor, and all trade names,
customer lists, trade secrets, proprietary processes and formulae, inventions,
know-how, other confidential and proprietary information, and other industrial
and intellectual property rights necessary to permit the Company to carry on its
business as presently conducted. Schedule 5.9 sets forth a list of all material
patents, trademarks, copyrights, service marks, and applications and
registrations therefor, and all trade names held or owned by the Company and all
rights (except for know-how and similar other undocumented intellectual
property) of the Company. All registered patents, copyrights, trademarks, and
service marks listed on Schedule 5.9 are in full force and effect and are not
subject to any taxes or maintenance fees which are delinquent. Except as set
forth on Schedule 5.9, the Company (i) did not license or grant to anyone rights
of any nature to use any intellectual property right that is material to its
business, and (ii) to the Company's knowledge, does not market or sell any
product or service that violates any intellectual property right of a third
party. Except as set forth on such Schedule, there is no pending or, to the
knowledge of the Company, threatened claim or litigation against the Company
contesting the right to use any of its material intellectual property rights,
asserting the misuse of any thereof, or asserting the infringement or other
violation of any intellectual property rights of a third party.
5.10. COMPLIANCE WITH LAWS; GOVERNMENTAL AUTHORIZATIONS.
To the Company's knowledge after due inquiry, it is not in violation of any Law,
which violation could reasonably be expected to have a Material Adverse Effect.
5.11. MATERIAL AGREEMENTS.
Schedule 5.11 sets forth each agreement or understanding which is material to
the business of the Company. Except as set forth on Schedule 5.11, each
agreement or understanding set forth on Schedule 5.11 is in full force and
effect and, to the knowledge of the Company, constitutes a valid and binding
obligation of all parties thereto. Except as set forth on Schedule 5.11, to the
Company's knowledge, the Company has in all material respects performed the
obligations required to be performed by it and is not in default or alleged to
be in default in any material respect under any material agreement or
understanding. Except as set forth on Schedule 5.11, to the Company's knowledge,
there exists no event or condition which, after notice or lapse of time, or
both, would constitute such a default in a material respect under such
agreements. The Company is not aware of any material defaults by any other party
to any such agreement or understanding.
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5.12. LITIGATION.
Except as set forth on Schedule 5.12 hereto, there are no (i) actions, suits,
claims, investigations or other proceedings by or before any governmental
authority or arbitrator pending or, to the knowledge of the Company, threatened
against the Company which, if determined adversely to the Company, would have a
Material Adverse Effect, or (ii) judgments, decrees, injunctions or orders of
any governmental authority or arbitrator against the Company.
5.13. SOLVENCY.
The Company is solvent, meaning that the fair salable value of the Company's
assets is in excess of its liabilities.
5.14. ENVIRONMENTAL MATTERS.
Except as otherwise stated in this Section 5.14, the Company is in compliance
with all Laws relating to the protection of the environment (the "Environmental
Laws"). The Company has not handled, stored or released, or exposed any person
to, any hazardous substance, as defined in 42 U.S.C.A. Section 9601(14) or any
other applicable Environmental Laws (a "Hazardous Substance"). To the Company's
knowledge, the Company is not and will not be liable or responsible for clean-up
costs, remedial work or damages in connection with the handling, storage,
release, or exposure by the Company of any Hazardous Substance in excess of
$25,000 in the aggregate. No claims for clean-up costs, remedial work or damages
have been made by any person or entity in connection with the handling, storage,
release, or exposure by the Company of any Hazardous Substance.
5.15. TAX MATTERS.
(a) (i) The Company has filed or been included in all required returns,
declarations of estimated tax, reports, and statements relating to any
Taxes (defined below) payable by it (collectively, the "Returns"); (ii) all
Returns were correct and complete in all material respects as of the time
of filing; (iii) the Company has timely paid all Taxes required to be paid
by it through the date hereof, except to the extent that Taxes are being
contested in good faith; (iv) the Company has made provision on the Interim
Balance Sheet in accordance with GAAP for all Taxes payable by it for all
periods prior to the date of the Interim Balance Sheet for which no Returns
have yet been filed; (v) the Company is not delinquent in the payment of
any Taxes, except to the extent that Taxes are being contested in good
faith; (vi) there are no pending tax audits of any Returns; and (vii)
except with respect to Taxes which are being contested in good faith, no
deficiency or addition to any Taxes or interest or penalty for any Taxes
has been proposed, asserted or assessed in writing against the Company.
(b) "Taxes" means, with respect to any person or entity, (i) all Federal,
state, local, and foreign taxes, including, without limitation, all taxes
on or based upon net income, gross income, income as specially defined,
earnings, profits or selected items of income, earnings, or profits, and
all gross receipts, sales, use, ad valorem, transfer, franchise, license,
withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property,
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or windfall profits taxes, alternative or add-on minimum taxes, customs
duties, or other taxes, fees, assessments or charges of any kind, together
with any interest, penalties, additions to tax or additional amounts
imposed by any taxing authority on such person or entity, and (ii) any
liability for the payment of any amount of the type described in the
preceding clause (i) as a result of being a "transferee" (within the
meaning of Section 6901 of the Internal Revenue Code of 1986, as amended
(the "Code"), or any other applicable Laws) of another person or entity.
5.16. ERISA.
Any plan maintained or contributed to by the Company that is an "employee
benefit plan," as defined in Section 3(3) or 3(2) of the Employee Retirement
Income Security Act of 1974 ("ERISA") is being administered in compliance with
the terms of such plan and applicable law in all material respects.
5.17. DISCLOSURE.
None of the documents or materials relating to the Company referred to herein or
on any Schedule, or furnished to the Guarantors by the Company in connection
with this Agreement, contains any untrue statement of a material fact by the
Company or, to the knowledge of the Company, by any other person or entity.
Neither this Agreement (including the Schedules) nor any such document or
material omits to state a material fact necessary in order to make the
statements contained herein or therein not materially misleading.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF GUARANTORS.
Each Guarantor, severally and only with respect to itself, represents and
warrants to the Company as of the date of this Agreement as follows:
6.1. INVESTMENT INTENT.
(a) Each Guarantor is acquiring the Warrants, and it will acquire any
Warrant Shares issuable upon exercise of the Warrants, for its own account,
for investment and not with a view to the distribution thereof, nor with
any present intention of distributing the same.
(b) Each Guarantor understands that the Warrants have not been, and any
Warrant Shares issuable upon exercise of the Warrants will not be,
registered under the Securities Act, and that they must be held
indefinitely unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from registration.
(c) Each Guarantor understands that the exemption from registration
afforded by Rule 144 of the Securities Act (the provisions of which are
known to the Guarantors) depends on the satisfaction of various conditions
and that, if applicable, Rule 144 may only afford the basis for sales under
certain circumstances only in limited amounts.
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(d) Each Guarantor is an "accredited investor," as such term is defined in
Rule 501 promulgated under the Securities Act.
(e) Each Guarantor (i) has received copies of the financial statements of
the Company described in Section 5.5 and (ii) believes that such Guarantor,
either alone or with the assistance of such Guarantor's own professional
advisor, has such knowledge and experience in financial and business
matters that such Guarantor is capable of reading and interpreting the
Company's financial statements and evaluating the merits and risks of the
transactions contemplated by this Agreement.
(f) In addition to the Company's financial statements referenced in
paragraph (e) above, each Guarantor has been given access to full and
complete information regarding the Company and has utilized such access to
his, her or its satisfaction.
6.2. DUE ORGANIZATION AND REQUISITE POWER.
Each Guarantor has all requisite power and authority, including, where
applicable, corporate power and authority, necessary to perform its obligations
to the Company and to the Bank as provided for in this Agreement.
6.3. ACTION AND EXECUTION.
Each Guarantor has taken all action necessary for the authorization, execution,
delivery and performance of this Agreement and the Credit Support Agreements.
When executed, each of this Agreement and the Credit Support Agreements will be
the legal, valid and binding obligation of each Guarantor enforceable in
accordance with its terms.
6.4. NO CONFLICT.
Neither the execution nor the delivery nor the performance of this Agreement or
the Credit Support Agreements by any Guarantor will violate or otherwise
contravene, where applicable, the Guarantor's articles or certificate of
incorporation or bylaws or the terms of any agreement, the breach of which would
invalidate this Agreement.
SECTION 7. PRIOR OR SIMULTANEOUS ACTIONS.
Prior to or at the Closing, concurrently with the execution and delivery of this
Agreement, the following actions have been or are being taken:
(a) Fees and Expenses. The fees and expenses of the Agent are being paid by
the Company to the Agent as provided under Section 12 below.
(b) Warrants. The Warrants are being executed and delivered by the Company.
(c) Security Agreement. The Bank Security Agreement has been executed and
delivered by the Company to the Bank.
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(d) Registration Rights Agreement. The Registration Rights Agreement is
being executed and delivered by the Company to the Agent for the benefit of
the Guarantors.
(e) Intellectual Property Assignment. The Bank Intellectual Property
Assignment have been executed and delivered by the Company to the Bank.
(f) Required Consents. All consents, approvals and other actions of, and
notices and filings with, all entities and persons as may be necessary or
required with respect to the execution and delivery by the parties of the
Documents, and the consummation by the parties of the transactions
contemplated thereby, have been obtained or made.
(g) Authorizing Actions of the Company. The Guarantors are receiving
certified copies of all requisite corporate actions taken by the Company to
authorize its execution and delivery of the Documents and its consummation
of the transactions contemplated thereby, and such other corporate
documents and other papers as the Guarantors may reasonably request.
(h) Opinion of Counsel. The Guarantors are receiving an opinion dated the
date hereof of counsel to the Company, in form reasonably satisfactory to
the Agent.
SECTION 8. COVENANTS.
8.1. ACCESS TO RECORDS.
The Company shall afford to the Guarantors and their authorized employees,
counsel, accountants and other representatives, upon reasonable notice and
during ordinary business hours, (i) reasonable access to all books, records, and
properties of the Company, as the same may relate to the Agreement and the
Documents and (ii) the opportunity to interview any officer of the Company
regarding its affairs as the same may relate to the Agreement and the Documents.
8.2. FINANCIAL REPORTING; DRAWS ON LINE OF CREDIT.
(a) The Company shall deliver to each Guarantor the following:
(i) within 45 days after the end of each fiscal quarter of the Company,
(i) the balance sheet of the Company at the end of such quarter, and
(ii) the statements of income and cash flows of the Company for such
quarter;
(ii) within 90 days after the end of each fiscal year of the Company,
(i) the balance sheet of the Company at the end of such fiscal year,
(ii) the statements of income and cash flows of the Company for such
fiscal year, and (iii) an audit report of a nationally-recognized firm
of independent certified public accountants on such balance sheets and
statements; and
(iii) All financial statements to be delivered under this Section shall
be in accordance with the books and records of the Company and shall
have been prepared in accordance with generally accepted accounting
principles consistently applied. At any time at which
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the Company has any subsidiaries, all such financial statements shall
be the consolidated financial statements of the Company and such
subsidiaries.
(b) The Company agrees that it shall not without the Agent's prior written
approval draw more than $500,000 against the Facility in the aggregate
during any seven day time period during the term thereof. In addition, the
Company agrees that it shall provide written notice of all draw requests to
the Agent at the same time that any draw requests are made to the Bank
under the Facility. The Company shall not request any draws more than ten
percent in excess of the Budget, on a cumulative basis.
8.3. PAYMENT; PREPAYMENT.
(a) The Company shall pay all its obligations to the Bank under the
Facility on or before June 30, 2001.
(b) Notwithstanding paragraph (a) above, the net cash proceeds of any of
the following shall be applied immediately and in full against Company's
obligations to the Bank under the Facility (i) any sale, lease, transfer or
other disposition of the Company's direct or indirect assets including any
sale, lease, transfer or other disposition of the assets of any direct or
indirect subsidiary of the Company (except equipment leases and pledges
under purchase money obligations which in the aggregate do not exceed those
dollar amounts set forth in Section 8.8(c) and trade sales, in each case in
the ordinary course of business), (ii) any equity or debt issuance by the
Company, including, without limitation, an initial public offering or
private placement of debt or equity securities or, (iii) after default
under the Bank Documents or Section 11 hereof, collection of any assets
(including accounts receivable) of the Company. Further, the Company agrees
to prepay its obligations to the Bank under the Facility upon any
consolidation or merger of the Company with or into another entity, or a
transfer of all or substantially all of the assets of the Company.
8.4. PAYMENT OF OBLIGATIONS.
The Company shall pay or discharge or cause to be paid or discharged all
material claims or demands, and all Taxes levied or imposed upon the Company or
upon the income, profits or property of the Company; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such claim, demand, or Tax the amount, applicability or validity
of which is being contested in good faith by appropriate proceedings and for
which adequate provision has been made.
8.5. INSURANCE.
The Company shall maintain with financially sound and reputable insurers such
insurance as may be required by law and such other insurance, to such extent and
against such hazards and liabilities, as is customarily maintained by companies
similarly situated and in the same or similar business.
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8.6. NOTICE OF DISPUTES, MATERIAL ADVERSE CHANGE.
The Company shall promptly notify the Agent of (i) the commencement or threat of
any action, suit, proceeding, labor dispute or grievance, governmental
investigation, or arbitration against or affecting the Company, which, if
adversely determined, could reasonably be expected to result in a Material
Adverse Change, (ii) any monetary or other material default under any
indebtedness of the Company in excess of $100,000; and (iii) any other Material
Adverse Change.
8.7. CONDUCT OF BUSINESS; BOARD OF DIRECTORS.
(a) The Company shall (i) take all actions required to assure that the
Company remains duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) take all actions
required to assure that the Company maintains all requisite governmental
authority, licenses, and permits necessary for the conduct its business,
and (iii) conduct its business in compliance with all Laws except where
noncompliance could not reasonably be expected to result in a Material
Adverse Change.
(b) Upon request by the Agent, the Company agrees to appoint a person
identified by the Agent to fill the vacancy on the Board of Directors
caused by the resignation of Robert Staib and to nominate as a member of
the Board of Directors a person identified by the Agent in connection with
each election of directors that occurs while the Facility remains
outstanding.
8.8. DEBT.
The Company will not directly or indirectly, create, incur, assume, guarantee or
otherwise become or remain directly or indirectly liable with respect to, any
Debt (defined below), except for:
(a) Debt of the Company to the Bank or hereunder;
(b) Accounts payable to trade creditors for goods and services, and current
operating liabilities incurred in the ordinary course of business;
(c) Debt of the Company with respect to capital leases in an aggregate
amount less than $750,000 in calendar 1999; $1,500,000 in calendar 2000 and
$1,500,000 during the first six months of calendar 2001; or
(d) Permitted Liens.
"Debt" means all indebtedness (i) for borrowed money, (ii) evidenced by
bonds, debentures, notes or similar instruments, or (iii) evidenced by
guaranties or similar contingent obligations.
8.9. RESTRICTED PAYMENTS.
While any amount payable to the Bank, or the Guarantors or the Agent in
connection herewith, including the Documents, is outstanding or the Company has
the ability to borrow under the
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Facility, the Company shall not directly or indirectly pay or declare any
dividend or authorize or make any distribution upon, or redeem, retire,
repurchase or otherwise acquire, any shares of capital stock of the Company
(except that the Company may adjust the conversion price of the Series C
Preferred Stock pursuant to the accumulating dividend provisions set forth in
the Series C designation). Furthermore, the Company shall not (i) invest more
than $200,000 in any existing or $100,000 in any newly-created subsidiary or
affiliate during any one year period or (ii) make any voluntary prepayments on
Debt unrelated to the Facility.
8.10. NEGATIVE PLEDGE.
The Company will not create, assume or suffer to exist any encumbrance on any
asset now owned or hereafter acquired by it, except:
(a) any lien on any asset securing Debt permitted under Section 8.8 above;
(b) Permitted Liens;
(c) liens securing the payment of taxes, assessments and governmental
charges or levies, either not yet due and payable or which are being
actually contested; and
(d) any lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any lien permitted by any of the foregoing
clauses of this Section; provided, however, that the principal amount of
such Debt is not increased and is not secured by any additional assets.
The Company shall at all times from and after the date hereof keep reserved,
free from Encumbrances solely for the purpose of effecting the exercise of the
Warrants, sufficient Warrant Shares to provide for the full exercise of the
Warrants.
8.11. TERMINATION.
The obligations of the Company hereunder shall terminate when the Guarantors are
released from their obligations under the Credit Support Agreements and no
amounts are owing in connection with the Facility or the Credit Support
Agreements.
SECTION 9. SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS.
The representations, warranties and covenants contained in this Agreement shall
survive the Closing indefinitely.
SECTION 10. INDEMNIFICATION.
(a) The Company shall indemnify, defend and hold the Agent and Guarantors
harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal
fees and expenses), relating to or arising from the transactions described
herein and the untruth, inaccuracy or breach of any of the
21
representations, warranties or agreements of the Company contained in this
Agreement or the other Documents; provided however, that none of the Agent
or the Guarantors will be indemnified for any costs or expenses that have
resulted primarily from its own gross negligence or willful misconduct.
(b) The Guarantors shall indemnify and hold the Company harmless against
all liability, loss or damage, together with all reasonable costs and
expenses related thereto (including reasonable legal fees and expenses),
relating to or arising from the untruth, inaccuracy or breach of any of the
representations, warranties or agreements of the Guarantors contained in
this Agreement.
SECTION 11. PURCHASE OF BANK'S RIGHTS AND INTERESTS; EVENTS OF DEFAULT.
If one or more of the Guarantors purchases the Bank's rights and interests under
the Bank Documents (collectively, the "Bank's Position"), violation by the
Company of any representation, warranty or covenant in this Agreement shall be
deemed to be an event of default under the Bank Documents, as will any one or
more of the following events (each, an "Event of Default"):
(a) if one of more judgments, decrees or orders for the payment of money in
excess of $100,000 shall be rendered against the Company, any such
judgments, decrees, or orders shall continue unsatisfied and in effect for
a period of 30 consecutive days without being vacated, discharged,
satisfied or stayed or bonded pending appeal; or
(b) if the Company shall become insolvent, or is adjudicated insolvent or
bankruptcy; or
(c) if the Company admits in writing its inability to pay its debts; or
(d) if the Company shall come under the authority of a custodian, receiver
or trustee for it or for substantially all its property; or
(e) if the Company makes an assignment for the benefit of creditors, or
suffers proceedings under any law related to bankruptcy, insolvency,
liquidation or the reorganization, readjustment or the release of debtors
to be instituted against it and if contested by it not dismissed or stayed
within 60 days; or
(f) if proceedings under any law related to bankruptcy, insolvency,
liquidation or the reorganization, readjustment or the release of debtors
are instituted or commenced by the Company; or
(g) if any order for relief is entered relating to any of the foregoing
proceedings under clauses (d) through (f); or
(h) the acquisition by any person (whether an individual, corporation,
association or other entity), or two or more persons acting in concert, of
beneficial ownership (within the meaning
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of Rule l3d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 30% or more of the outstanding voting
securities of the Company; or
(i) if there is a Material Adverse Effect, as determined in the reasonable
discretion of the Agent; or
(j) if the Company or any of its subsidiaries shall fail to make any
material payment in respect of any indebtedness (including all amounts owed
Northern Trust) or other material contract when due or within any
applicable grace period; or any event or condition shall occur which
results in the acceleration of the maturity of any indebtedness or material
contract or enables (or, with the giving of notice or lapse of time or
both, would enable) the holder of any indebtedness or material contract or
any Person acting on such holder's behalf to accelerate the maturity
thereof or obligations thereunder.
The Events of Default set forth in this Section 11 shall be applicable only upon
a purchase of the Bank's Position by one or more of the Guarantors.
SECTION 12. FEES AND EXPENSES.
The Company, shall pay or reimburse the Agent for all direct expenses associated
with this Agreement, the transactions contemplated hereby, and/or the
enforcement of or collection under this Agreement, including in each case,
without limitation, the reasonable fees and charges of BELIN LAMSON McCORMICK
ZUMBACH FLYNN, a Professional Corporation, counsel to the Agent and all letter
of credit fees or other fees related to the Guarantor Commitments.
SECTION 13. CONFIDENTIALITY.
Each Guarantor shall keep all confidential, non-public information on the
business operations and affairs of the Company, which it receives as a
consequence of this Agreement and the other Documents, strictly confidential and
shall not disclose such information to any third party without the Company's
prior consent.
SECTION 14. ASSIGNMENT; PARTIES IN INTEREST.
This Agreement and the rights and obligations of the parties hereunder shall be
assignable by the Guarantors, but not the Company. This Agreement shall bind and
inure to the benefit of the Company, the Guarantors, the Agent, and their
respective successors and permitted assigns.
SECTION 15. ENTIRE AGREEMENT.
This Agreement and the other Documents contain the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect to such subject
matter.
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SECTION 16. FURTHER ASSURANCES.
The Company agrees to do such further acts and things and to execute and deliver
to Agent such additional assignments, agreements, powers and instruments, as
Agent may reasonably require to carry into effect the purposes of this Agreement
or any of the Documents.
SECTION 17. NOTICES.
All notices, claims, certificates, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or if sent by nationally-recognized overnight courier, by
telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
if to the Company:
Stockpoint, Inc.
2600 Crosspark Road
Coralville, IA 52241-3212
with a copy to:
Thomas Martin, Esq.
Dorsey & Whitney LLP
220 South 6th Street
Minneapolis, MN 55402
if to the Agent:
Equity Dynamics, Inc.
2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
with a copy to:
Belin Lamson McCormick Zumbach Flynn
A Professional Corporation
The Financial Center
666 Walnut Street
Suite 2000
Des Moines, Iowa 50309
ATTN: Garth D. Adams, Esq.
if to the Guarantors:
John Pappajohn
c/o Equity Dynamics
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2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
Gerald M. Kirke
Kirke Financial Services, L.L.C.
417 Locust Street
Des Moines, Iowa 50309
Iowa Farm Bureau Federation
5400 University Avenue
West Des Moines, Iowa 50266
Attn: James Christenson, Director of Finance
Derace Schaffer
3489 Elmwood Avenue
Rochester, New York 14610
Matthew Kinley
c/o Equity Dynamics
2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
Dominion Securities Inc.
211 First Avenue S.E.
Cedar Rapids, Iowa 52401
Michael J. Richards
Kirke Financial Services, L.L.C.
417 Locust Street
Des Moines, Iowa 50309
Joseph Dunham
c/o Equity Dynamics
2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, upon receipt of electronic
confirmation of transmission, and (d) in the case of mailing, on the third
business day following that on which the piece of mail containing such
communication is posted.
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SECTION 18. AMENDMENTS.
The terms and provisions of this Agreement may only be modified or amended
pursuant to an instrument signed by all parties. Notwithstanding the foregoing,
the obligations of the Company under Sections 8.1 through 8.10 may also be
waived, temporarily or permanently, but solely with respect to any Guarantor,
pursuant to an instrument signed by such Guarantor.
SECTION 19. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
SECTION 20. HEADINGS, GENDER, TENSE.
The section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever from the context it appears appropriate, each term
stated in either of the singular or the plural will include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender will
include the masculine, the feminine and the neuter. Unless otherwise expressly
stated in the Agreement, the words "herein," "hereof," "hereto," "hereunder" and
others of similar inference refer to the Agreement as a whole and not to any
particular section, subsection or clause contained in the Agreement. The term
"including" shall not be deemed to be exclusive and shall be deemed to mean
"including, without limitation."
SECTION 21. GOVERNING LAW, JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC LAWS OF THE STATE OF IOWA WITHOUT GIVING EFFECT TO ANY LAW OR RULE THAT
WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF IOWA TO BE
APPLIED. THE PARTIES HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA AND OF ANY IOWA
STATE COURT SITTING IN DES MOINES FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH OF THE PARTIES IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 22. WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE AGENT AND THE GUARANTORS HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
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PROCEEDING ARISING OUT OF OR RELATING TO THE DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY AND TO THE FULLEST EXTENT PERMITTED BY LAW WAIVES ANY
RIGHTS THAT IT MAY HAVE TO CLAIM OR RECEIVE CONSEQUENTIAL OR SPECIAL DAMAGES IN
CONNECTION WITH ANY LEGAL PROCEEDING ARISING OUT OR RELATING TO THE FINANCING
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
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IN WITNESS WHEREOF the parties have executed and delivered this Master Agreement
on the date first above written.
STOCKPOINT, INC.
By: /s/ [illegible]
---------------------------------------
By: /s/ John Pappajohn
---------------------------------------
John Pappajohn
By: /s/ Gerald M. Kirke
---------------------------------------
Gerald M. Kirke
IOWA FARM BUREAU FEDERATION
By: /s/ James Christenson
---------------------------------------
James Christenson
By: /s/ Derace Schaffer
---------------------------------------
Derace Schaffer
By: /s/ Matthew P. Kinley
---------------------------------------
Matthew P. Kinley
DOMINION SECURITIES INC.
By: /s/ Steve Michalicek
---------------------------------------
Steve Michalicek
By: /s/ Michael J. Richards
---------------------------------------
Michael J. Richards
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By: /s/ Joseph Dunham
---------------------------------------
Joseph Dunham
EQUITY DYNAMICS, INC., as Agent
By: /s/ [illegible]
---------------------------------------
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