Voting Agreement - ScreamingMedia Inc., William E. Staib, Harry Hefter and John Pappajohn
VOTING AGREEMENT
VOTING AGREEMENT dated July 23, 2001, among ScreamingMedia Inc., a
Delaware corporation ("Parent"), SCRM Merger Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Purchaser"), and the
stockholders executing this Agreement (each a "Stockholder").
WHEREAS, simultaneously herewith, Parent and Purchaser are
entering into an Agreement and Plan of Merger dated the date hereof (as
amended from time to time, the "Merger Agreement"), with Stockpoint, Inc.,
a Delaware corporation (the "Company"), which contemplates, among other
things, that Purchaser will merge with and into the Company upon the terms
and subject to the conditions of the merger transactions contemplated by
the Merger Agreement (the "Merger").
WHEREAS, all capitalized terms used but not defined herein shall
have the respective meanings assigned thereto in the Merger Agreement,
whether or not the Merger Agreement shall be in effect from time to time;
WHEREAS, as a condition precedent to the willingness of, and as an
inducement for, Parent and Purchaser to enter into the Merger Agreement,
Parent and Purchaser have requested each Stockholder to agree, and each
Stockholder has agreed, severally and not jointly, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto, intending to
be legally bound hereby, hereby agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 Voting Agreement. Each Stockholder hereby agrees that,
at any meeting of the stockholders of the Company, however called, or in
connection with any written consent of the holders of capital stock, each
such Stockholder shall vote his or its Shares (as defined below) (a) in
favor of the adoption of the Merger Agreement and approval of the Merger,
and all other actions required in furtherance thereof and hereof and (b)
against any Alternative Transaction and all actions in furtherance thereof.
As used herein, the term "Shares" shall mean, with respect to each
Stockholder, the shares of the Company's capital stock set forth opposite
the name of each Stockholder on Exhibit A attached hereto and any shares of
the Company's capital stock acquired by the Stockholder prior to the
termination of this Agreement.
SECTION 1.2 Irrevocable Proxy. Each Stockholder hereby irrevocably
constitutes and appoints Kevin C. Clark as his or its attorney-in-fact and
proxy pursuant to the provisions of Section 212(c) of the DGCL, with full
power of substitution, to vote and otherwise act (by written consent or
otherwise) with respect to the Shares which such Stockholder is entitled to
vote at any meeting of stockholders of the Company (whether annual or
special and whether or not at an adjourned or postponed meeting) or consent
in lieu of any such meeting or otherwise, on, and only on, the matters
described in Section 1.1 and to duly execute and deliver any and all
consents, instruments or other agreements or documents in order to take any
and all such actions in connection with or in furtherance of the
obligations of such Stockholder set forth in this Agreement. Each
Stockholder intends that the proxy granted hereby shall be coupled with an
interest pursuant to this Agreement and that such proxy, therefore, shall
be irrevocable so long as this Section 1.2 remains in effect pursuant to
the terms of this Agreement.
Each Stockholder hereby revokes all other proxies and powers of
attorney with respect to such Stockholder's Shares that it heretofore may
have appointed or granted with respect to matters described in Section 1.1,
and no subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by such
Stockholder with respect thereto. All authority herein conferred or agreed
to be conferred shall survive the death or incapacity of a Stockholder and
any obligation of such Stockholder under this Agreement shall be binding
upon the heirs, personal representatives, successors and assigns of such
Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Representations and Warranties of the Stockholder.
Each Stockholder, severally and not jointly, represents and warrants to
Parent and Purchaser as follows:
(a) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Stockholder of this Agreement have
been obtained; and such Stockholder has full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the
shares of Company Common Stock or Company Preferred Stock or the Bridge
Warrants, as the case may be, to be converted under the Merger Agreement.
Such Stockholder has the legal capacity to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by such Stockholder and this Agreement
constitutes a valid and binding agreement of such Stockholder enforceable
against such Stockholder in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws now or hereafter in effect relating to creditors' rights
generally and subject to general principles of equity. The execution,
delivery and performance by such Stockholder of this Agreement and the
consummation by such Stockholder of the transactions contemplated hereby
require no action by or in respect of, or filing with, any Governmental
Authority.
(b) The sale of the shares of Company Common Stock or Company
Preferred Stock or the Bridge Warrants to be sold by such Stockholder under
the Merger Agreement and the compliance by such Stockholder with all of the
provisions of this Agreement and the consummation by such Stockholder of
the transactions contemplated herein will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Stockholder is a
party or by which such Stockholder is bound or to which any of the property
or assets of such Stockholder is subject, nor will such action result in
any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over such Stockholder or the property of such Stockholder.
(c) There is no suit, action, investigation or proceeding pending
or, to the knowledge of such Stockholder, threatened against such
Stockholder at law or in equity before or by any Governmental Authority
that could reasonably be expected to impair the ability of such Stockholder
to perform his or its obligations hereunder, and there is no judgment,
decree, injunction, rule, order or writ of any Governmental Authority to
which such Stockholder is or its assets are subject that could reasonably
be expected to impair the ability of such Stockholder to perform its
obligations hereunder.
(d) Each Stockholder owns beneficially and of record the Shares on
Exhibit A hereto. Each Stockholder further owns beneficially the options,
warrants and other rights to purchase shares of capital stock as set forth
on Exhibit A hereto. The Shares constitute all the shares of capital stock
owned beneficially and of record by such Stockholder. Such Stockholder has
sole voting power, sole power of disposition, sole power to demand
appraisal rights and all other stockholder rights with respect to all of
his or its Shares, with no restrictions, other than restrictions on
disposition pursuant to applicable securities laws, on such Stockholder's
rights of voting or disposition pertaining thereto. Such Stockholder has
good and valid title to all Shares, free and clear of all liens and
encumbrances (other than any liens or encumbrances created under this
Agreement). For purposes of this Agreement, "beneficially own" or
"beneficial ownership" with respect to any securities shall mean
"beneficial ownership" of such securities as determined pursuant to Rule
13d-3 under the Exchange Act, including pursuant to any agreement,
arrangement, commitment or understanding, whether or not in writing.
(e) Each Stockholder acknowledges and agrees with the Parent that
the consideration to be received in the form of Purchaser Common Stock will
not be registered under the Securities Act of 1933, as amended (the
"Securities Act") and may not be offered or sold except pursuant to
registration or an exemption from the registration requirements of the
Securities Act. Such Stockholder further agrees that he or it has not
entered and will not enter into any transaction or arrangement with respect
to the sale, transfer or delivery of the Purchaser Common Stock, other than
pursuant to any transaction that does not require registration under the
Securities Act. Such Stockholder is acquiring the Purchaser Common Stock
for his or its own account for investment and not with a view toward
distribution in a manner which would violate the Securities Act. Such
Stockholder represents that by reason of his or its business and financial
experience he or it has the capacity to protect his or its own interests in
connection with the transactions contemplated by this Agreement and the
Merger Agreement, and believes himself or itself capable of evaluating the
merits and risks of the investment in shares of Purchaser Common Stock.
Such Stockholder further represents that he or it is able to bear the
economic risk of an investment in the Purchaser Common Stock and has an
adequate income independent of any income produced from an investment in
the Purchaser Common Stock, sufficient net worth to sustain a loss of all
of his or its investment in the Purchaser Common Stock without economic
hardship if such a loss should occur. Each Stockholder, other than William
E. Staib, represents that he or it is an "accredited investor" as that term
is defined in Regulation D promulgated under the Securities Act. Such
Stockholder represents that he or it is a resident of the state listed on
Exhibit A and has no present intention of becoming a resident of any other
state or jurisdiction. Such Stockholder has received physical delivery of
the Merger Agreement and all exhibits and schedules thereto. Such
Stockholder also acknowledges that such Stockholder possesses all the
information relating to the Parent (including the publicly available
filings made by the Parent pursuant to the Securities Act and the
Securities Exchange Act) which such Stockholder deems relevant or material
to such Stockholder's investment in Purchaser Common Stock or Purchaser
Warrants, as the case may be, and has had adequate opportunity to ask
questions of, and receive answers from, the Parent as well as the Parent's
officers, employees, agents, accountants, and representatives concerning
the Parent's business, operations, financial condition, assets,
Liabilities, and all other matters relevant to his or its investment in the
Purchaser Common Stock.
(f) Stockholder understands and acknowledges that Parent is
entering into, and causing Purchaser to enter into, the Merger Agreement,
and is incurring the obligations set forth therein, in reliance upon
Stockholder's execution and delivery of this Agreement.
(g) Notwithstanding anything otherwise provided for herein, each
Stockholder's representations and warranties contained in this Section 2
shall be true and correct as of the date hereof and as of the date of the
consummation of the Merger as if made on that date.
ARTICLE III
COVENANTS OF THE STOCKHOLDER
SECTION 3.1 "No Solicitation". Each Stockholder shall not, and
shall use its best efforts to cause his or its Representatives not to,
directly or indirectly, take any of the following actions with any Person
other than the Parent without the prior written consent of the Parent: (A)
solicit, initiate, facilitate or encourage, or furnish information with
respect to the Company, in connection with, any inquiry, proposal or offer
with respect to any merger, consolidation or other business combination
involving the Company or the acquisition of all or a substantial portion of
the assets of, or any securities of, the Company (an "Alternative
Transaction"); (B) negotiate, discuss, explore or otherwise communicate or
cooperate in any way with any third party with respect to any Alternative
Transaction; or (C) enter into any agreement, arrangement or understanding
with respect to an Alternative Transaction or requiring the Company to
abandon, terminate or refrain from consummating a transaction with the
Parent. Each Stockholder shall, and shall use its best efforts to cause its
Representatives to, notify the Parent orally and in writing promptly upon
receipt of any inquiry, offer or proposal with respect to an Alternative
Transaction, including the identity of the party making such inquiry, offer
or proposal and stating the terms thereof. Each Stockholder shall
immediately cease any discussions or negotiations existing as of the date
hereof with any third party relating to any proposed Alternative
Transaction.
SECTION 3.2 Restriction on Transfer. Until and unless this
Agreement has been terminated, each Stockholder shall not, except as
expressly provided for in this Agreement (a) sell, exchange, pledge,
encumber or otherwise transfer or dispose of, or agree to sell, exchange,
pledge, encumber or otherwise transfer or dispose of, any of his or its
Shares (which for avoidance of doubt shall not include any option to
purchase capital stock exercisable for Shares pursuant to the terms of such
option), or any interest therein, (b) deposit his or its Shares into a
voting trust or enter into a voting agreement or arrangement with respect
to such Shares or grant any proxy with respect thereto, or (c) enter into
any agreement, arrangement, commitment, understanding or undertaking to do
any of the foregoing.
SECTION 3.3 Waiver of Appraisal Rights. Each Stockholder hereby
waives all of his or its rights, whether pursuant to Section 262 of the
DGCL or otherwise, to dissent from the Merger and/or receive the judicially
appraised value of his or its Shares.
SECTION 3.4 Indemnification. Subject to the limitations and
provisions of Section 12 of the Merger Agreement, including, without
limitation, Section 12.1(d)(iv) thereof (which provides that no Stockholder
or holder of a Bridge Warrant shall be obligated to pay anything other than
or more than his or its respective pro rata share of the Holdback Amount to
discharge his or its indemnification obligations), each Stockholder,
jointly and severally, covenants and agrees to indemnify, defend, protect
and hold harmless the Parent, Purchaser and their officers, directors,
members, managers, employees, stockholders, assigns, successors and
Affiliates (individually, a "Buyer Party" and collectively "Buyer Parties")
from, against and in respect of all Damages, Actions, and interest
(including interest from the date of such Damages) suffered, sustained,
incurred or paid by any Buyer Party, in any Action (x) between a Buyer
Party and the Company or any Stockholder or (y) between a Buyer Party and a
third party, in connection with, resulting from or arising out of, directly
or indirectly: (i) the inaccuracy of any representation or the breach of
any warranty set forth in the Merger Agreement or certificates delivered on
the part of the Company or any Stockholder in connection with the Closing;
(ii) the nonfulfillment of any covenant or agreement on the part of the
Company or any Stockholder set forth in the Merger Agreement or in any
agreement or certificate executed and delivered by the Company or any
Stockholder pursuant to the Merger Agreement or in the transactions
contemplated thereby; (iii) claims (whether based on contract, tort,
fiduciary or any other theory) of any actual or purported, beneficial or
record, current or past, holder of the Company's debt or equity securities
(or any interest or right therein) in connection with, resulting from or
arising out of, directly or indirectly, such debt or equity securities (or
any interest or right therein) that is based on any action taken at or
prior to the Effective Time other than claims with respect to (A) the
accuracy of the representations and warranties of Parent and Purchaser made
pursuant to the Merger Agreement, (B) the failure by Parent or Purchaser to
perform any of their respective agreements or covenants pursuant to the
Merger Agreement or (C) the information provided by Parent or Purchaser
expressly for inclusion in the materials to be provided to holders of the
Company's debt and equity securities as contemplated by Section 9.2 of the
Merger Agreement; and (iv) the items identified on Schedule 12.1(a) to the
Merger Agreement.
SECTION 3.5 Further Assurance. From time to time and without
additional consideration, Stockholder shall (at Stockholder's sole expense)
execute and deliver, or cause to be executed and delivered, such additional
transfers, assignments, endorsements, proxies, consents and other
instruments and shall (at Stockholder's sole expense) take such further
actions, as Parent may reasonably request for the purpose of carrying out
and furthering the intent of this Agreement.
SECTION 3.6 Holdback. Each Stockholder hereby agrees that, in
accordance with Sections 3.2, 3.7 and 3.9 of the Merger Agreement, the
Parent shall retain 10% of the consideration otherwise deliverable to such
Stockholder in order to secure the obligations of the Company and such
Stockholder under Section 3.4 of this Agreement, Section 3.8 of the Merger
Agreement and Article XII of the Merger Agreement.
SECTION 3.7 Lock-Up. Each Stockholder hereby agrees that the
shares of Purchaser Common Stock and the Purchaser Warrants that such
Stockholder shall receive (whether in the Merger or upon exercise of the
Purchaser Warrants) shall not be sold, transferred, pledged, disposed of or
encumbered for the period beginning on the Closing Date and ending (i) as
to 50% of such securities, twelve months from the Closing Date, and (ii) as
to the remaining 50% of such securities, in equal amounts on a monthly
basis beginning thirteen months from the Closing Date and ending eighteen
months from the Closing Date. Each certificate representing such shares of
Purchaser Common Stock and the Purchaser Warrants shall bear a legend
stating:
"THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR APPLICABLE STATE SECURITIES LAWS AND THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SALE
OR TRANSFER IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT, AND IF THE ISSUER REQUESTS, AN OPINION
SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY
COUNSEL."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
CONTRACTUAL HOLDING PERIOD SET FORTH IN THAT CERTAIN AGREEMENT AND PLAN OF
MERGER AMONG STOCKPOINT, INC., THE ISSUER AND SCRM MERGER CORP., DATED AS
OF JULY 23, 2001. PRIOR TO THE EXPIRATION OF SUCH HOLDING PERIOD, SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED AND THE ISSUER SHALL
NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE, TRANSFER OR
ASSIGNMENT. UPON THE WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE
ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED
WITH ITS TRANSFER AGENT) WHEN THE HOLDING PERIOD HAS EXPIRED."
SECTION 3.8 Stockholder Agent. Each Stockholder hereby agrees to
appoint Steve Morain (the "Stockholder Agent") as such Stockholder's agent
and attorney-in-fact for the purposes set forth in Section 12.5 of the
Merger Agreement and acknowledges the duties, powers and rights of the
Stockholder Agent as set forth therein.
SECTION 3.9 Release. Effective as of the Closing, each Stockholder
hereby irrevocably waives and releases the Company, its current and former
officers, directors and Affiliates, of, from and against any and all claims
or causes of actions for Damages that he or it has, may have, or has had at
any time on or before the Closing.
ARTICLE IV
TERMINATION
SECTION 4.1 Termination. The covenants and agreements contained
herein with respect to the Shares shall terminate upon the earlier of (i)
the termination of the Merger Agreement in accordance with its terms or
(ii) the Effective Time.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Severability. If any term or other provision of this
Agreement is or is deemed to be invalid, illegal or incapable of being
enforced by any applicable rule of law or public policy, all other
conditions and provisions of this Agreement nevertheless shall remain in
full force and effect so long as the economic or legal substance of this
Agreement is not affected in any manner materially adverse to any Person.
Upon any determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effectuate the original intent of
the parties hereto as closely as possible in a mutually acceptable manner
so that the terms of this Agreement remain binding and in effect as
originally contemplated to the fullest extent possible.
SECTION 5.2 Entire Agreement. This Agreement constitutes the
entire understanding between Parent, Purchaser and each Stockholder with
respect to the subject matter hereof and thereof and supersedes all prior
agreements and understandings, both written and oral, between Parent,
Purchaser and each Stockholder with respect to the subject matter hereof
and thereof.
SECTION 5.3 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an
original, but all of which taken together, shall constitute but one and the
same instrument.
SECTION 5.4 [Intentionally Omitted]
SECTION 5.5 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
other parties hereto; provided that Parent may assign its rights hereunder
to any direct or indirect wholly owned Subsidiary of Parent, but no such
assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 5.6 Amendments. This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties
hereto.
SECTION 5.7 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by delivery in
person, facsimile transmission, registered or certified mail (postage
prepaid, return receipt requested), or courier service providing proof of
delivery to the respective parties at the following addresses (or to such
other address for a party as shall be specified in a notice given in
accordance with this Section 5.7).
If to Parent or Purchaser, to:
ScreamingMedia Inc.
601 West 26th Street
13th Floor
New York, NY 10001
Telecopy No.: (212) 691-1483
Attention: Kevin C. Clark
With a copy (which shall not constitute effective notice pursuant
to this Section 5.7) to:
Skadden, Arps, Slate, Meagher
& Flom LLP
Four Times Square
New York, NY 10036
Telecopy No.: (212) 735-2000
Attention: Thomas H. Kennedy, Esq.
If to the Stockholders, to:
Stockpoint, Inc.
2600 Crosspark Road
Coralville, IA 52241
Telecopy No.: (319) 626-5001
c/o William E. Staib
Attention: William E. Staib
Harry Hefter
John Pappajohn
With a copy (which shall not constitute effective notice pursuant
to this Section 5.7) to:
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, MN 55402
Telecopy No.: (612) 340-8738
Attention: Thomas O. Martin, Esq.
SECTION 5.8 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any
Person not a party hereto.
SECTION 5.9 Specific Performance. Each of the parties hereto
acknowledges that a breach by it of any provision contained in this
Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of
the parties hereto agrees that in the event of any such breach, the
aggrieved party shall be entitled to the remedy of specific performance of
such agreement and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
SECTION 5.10 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
of any thereof by any party shall not preclude the simultaneous or later
exercise of any other right, power or remedy by such party.
SECTION 5.11 No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist
upon strict compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance with the
terms hereof, shall not constitute a waiver by such party of its rights to
exercise any such or other right, power or remedy or to demand such
compliance.
SECTION 5.12 Governing Law. (a) This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware,
without giving effect to the principles of conflicts of law, (b) each party
hereby irrevocably submits to the exclusive jurisdiction of the Court of
Chancery in the State of Delaware in any action, suit or proceeding arising
in connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection
based on forum non conveniens or any other objection to venue therein);
provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this subsection (c) and shall not be deemed to be a
general submission to the jurisdiction of such court or in the State of
Delaware other than for such purposes.
SECTION 5.13 Waiver of Jury Trial. EACH OF PARENT, PURCHASER AND
THE STOCKHOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT, PURCHASER OR THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF).
SECTION 5.14 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 5.15 Public Announcements. Stockholder agrees that it
shall not issue, and shall not authorize or permit any of its Affiliates or
any of its or their directors, officers, employees, partners, investment
bankers, attorneys or other advisors or representatives to issue, any press
release or otherwise make, authorize or permit any of its Affiliates or any
of its or their directors, officers, employees, partners, investment
bankers, attorneys or other advisors or representatives to make, any public
statement with respect to the Merger Agreement, this Agreement, or any of
the transactions contemplated hereby or thereby, including the Merger,
without the prior written consent of Parent, except as may be required by
applicable law, including any filings required under the Exchange Act.
SECTION 5.16 Confidentiality; No Securities Trading. Stockholder
acknowledges that it is aware, and that Stockholder's Representatives, will
be made aware, that in connection with the discussions with Parent
regarding the transactions contemplated by this Agreement and the Merger
Agreement, they may come into possession of material non-public information
about Parent. Accordingly, pending public disclosure thereof, Stockholder
hereby agrees (i) not to disclose, and to cause the Company's
Representatives not to disclose, to any third party (which, for this
purpose, includes any stockholder of the Company not bound by a
confidentiality obligation) such matters without the prior written consent
of the Parent, except that disclosures may be made (a) to those of their
respective Representatives as need to know such information for the purpose
of evaluating or negotiating the transactions contemplated by this
Agreement and the Merger Agreement, and (b) to the extent required by
applicable law, regulation or legal or administrative process, including
the rules of the NASDAQ National Market and (ii) not cause or encourage any
third party (including the Company and the Company's Representatives) to
trade in any securities of Parent (or securities convertible into or
exercisable for securities of Parent) while in possession of any such
material non-public information.
SECTION 5.17 Several Obligations; Capacity. The representations,
warranties, covenants, agreements and conditions of this Agreement
applicable to each Stockholder are several and not joint and are made only
in his or its capacity as a stockholder of the Company and not as a
director.
[Execution Page Follows]
IN WITNESS WHEREOF, Parent, Purchaser and each Stockholder have
caused this Agreement to be duly executed and delivered as of the date
first above written.
SCREAMINGMEDIA INC.
/s/ Kevin C. Clark
--------------------------------
Name: Kevin C. Clark
Title: Chief Executive Officer
SCRM MERGER CORP.
/s/ David Obstler
--------------------------------
Name: David Obstler
Title: President
STOCKHOLDERS:
Name: /s/ William E. Staib
-------------------------
William E. Staib
Name: /s/ Harry Hefter
-------------------------
Harry Hefter
Name: /s/ John Pappajohn
-------------------------
John Pappajohn
EXHIBIT A
STOCKHOLDER CAPITAL STOCK OWNERSHIP
Shares of
Stockholder Company capital stock State of Residency
William E. Staib 450,000 shares of common stock Iowa
Harry Hefter 1,500,000 shares of common stock Illinois
John Pappajohn 908,125 shares of common stock Iowa
118,912 shares of Series A stock
OPTIONS, WARRANTS AND OTHER RIGHTS
William E. Staib: 377,767 options outstanding
Harry Hefter: 13,750 options outstanding
John Pappajohn: 450,000 warrants outstanding