WAIVER AND INDEMNITY
AGREEMENT
Agreement made this 30th day of January 2009 by
and among Panel Intelligence, LLC a Delaware limited liability
company (“Surviving Entity”), MCF Corporation, a
Delaware corporation (“MCF”), the former stockholders
of MedPanel, Inc. who are signatories hereto and William Febbo, as
representative of the Stockholders of MedPanel who are not
signatories hereto (“Febbo”).
WHEREAS, through a series of transactions
MedPanel Inc., a Delaware corporation (“MedPanel”),
merged with Surviving Entity pursuant to that certain Agreement and
Plan of Merger dated as of November 6, 2006 (“Merger
Agreement”) between MedPanel’s shareholders
(“Stockholders”) and other parties, including
MCF.
WHEREAS,
pursuant to the Merger Agreement, the Stockholders of MedPanel
received cash, shares of the common stock of MCF and certain
contingent rights to receive (i) “Incentive
Consideration” pursuant to Section 2.7.2 of the Merger
Agreement if the Surviving Entity’s cumulative revenue and
EBITDA were in excess of a threshold amount determined on January
1, 2010 (“Threshold”) or alternatively, (ii)
consideration pursuant to Section 2.7.3 of the Merger Agreement in
connection with a “Change of Control” of
MCF.
WHEREAS, it is
extremely unlikely that the Threshold would be reached as of
January 1, 2010.
WHEREAS, a former vendor of MedPanel has
asserted claims against the Surviving Entity in the amount of
127,000 pounds sterling for which MCF and/or the Surviving Entity
might seek reimbursement from such Stockholders (“Vendor
Claim”).
WHEREAS, the IRS is currently auditing the
accounts of MedPanel which could lead to a claim by MCF or the
Surviving Entity against the Stockholders.
WHEREAS,
Surviving Entity generated negative cash flow in 2008 and requires
an investment by MCF of at least $100,000 within the next 30 days,
and of at least $500,000 in 2009, in order to continue its
operations.
WHEREAS, MCF is
unab
