INFORMATION LICENSE AND ASSET PURCHASE AGREEMENT
This Information License and Asset Purchase Agreement ("Agreement") is executed
and entered into as of July 13, 1995, by and between Data Transmission Network
Corporation, a Delaware corporation ("DTN") and Xxxxxx-Xxxxxx Financial, Inc., a
Delaware corporation ("KRF").
RECITALS:
DTN owns and operates an information transmission system that provides its
subscribers with access via electronic transmission to various types of
information services. DTN has approximately 2,400 customers who subscribe to its
DTNstant(R) information service which provides instant futures and options
quotations from the major commodity exchanges, commercial grain news, export
basis information, weather information and general agricultural market
information. DTN also offers other information services serving the agriculture
industry as well as other industries.
KRF owns and operates a satellite information transmission system and a
phone-line based transmission system that provides its subscribers with access
via electronic transmission to various types of information services. KRF has
approximately 2,900 customers who subscribe to its CommodityCenter platform.
KRF and DTN desire to enter into an agreement providing for (i) the purchase by
DTN of certain assets of KRF relating to KRF Subscribers, (ii) the continuation
of the provision of information services to the KRF Subscribers during
transition, (iii) the conversion of the KRF Subscribers to information services
provided over the DTN System, (iv) the delivery and non exclusive license of
certain information by KRF to DTN for dissemination by DTN over the DTN System
and (v) other related matters.
NOW, THEREFORE, in consideration of the premises and mutual agreements and
covenants contained herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings
ascribed to them elsewhere in this Agreement and as follows:
"Affiliate" means a Person who directly or indirectly, through one or
more intermediaries or otherwise, controls, is controlled by, or is
under common control with another Person. Control means owning 20% or
more of the voting interest.
"Base Services" means collectively the DTNstant Service and KRF
Services.
"Base Service Fees" means the Fees Earned during the Service Period for
Base Services; provided, however, such fees shall not include any Fees
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Earned by DTN from subscribers to Base Services (i) for one-time
installation fees to the extent such fees do not exceed a reasonable
third party equivalent cost, (ii) for sales, use, privilege, excise,
property or other taxes assessments or governmental charges or (iii)
for the first $7,500 per month of Optional Service fees. For the
avoidance of doubt any Optional Service fees in relation to Base
Services in excess of $7,500 per month in relation to Base Services
plus Limited Services will be included as part of Base Service Fees.
"Closing" means the time at which the parties hereto consummate the
sale of the Purchased Assets (as defined in Section 2) which Closing
shall take place on the date KRF and DTN deliver to the other party the
assets listed in Sections 4, 5(a) and 5(b) but shall be no later than
July 31, 1995 or such later date as the parties hereto shall agree.
"CommodityCenter" means the standalone, custom designed, low cost,
computer system capable of receiving KRF Information.
"CommodityCenter Digital Data Feed" means that part of the KRF System
and KRF Land-Line System needed to service the CommodityCenter
platform.
"Conversion Period" means the period commencing on the Effective Date
and ending on December 31, 1996.
"Converted Subscribers" means those KRF Subscribers who have allowed
DTN to replace some or all of the KRF Equipment with DTN's equipment
and provide any DTN Service over the DTN System at any time during a
period of 24 months from the Effective Date, irrespective of whether
they are still a DTN subscriber at the end of that period.
"Customer Contracts" means the contracts or agreements associated with
the KRF Subscribers listed in Exhibit "A".
"DTN Subscription Agreements" mean those written contracts entered into
by DTN with subscribers to any DTNstant Service or any DTN service
containing KRF Information.
"DTNstant Service" means collectively the DTNstant(R) information
service and those information services of DTN which provide Real-Time
commodity information from the agricultural, energy, lumber, metals,
softs or transport industries. The DTNstant Service does not include
existing or future DTN information services which do not provide
Real-Time commodity information from the agricultural, energy, lumber,
metals, softs or transport industries or any information supplied by
KRF, such as, by way of illustration only, the DTN Wall Street(R) and
DTNergy(R) information services. DTNergy shall only be excluded if the
product contains no KRF Information and no Real-Time information other
than New York Mercantile Exchange ("NYMEX").
"DTN System" means the information transmission system related to
various types of DTN information services.
"Effective Date" means 12:01 a.m. on the day immediately after Closing.
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"FAP Information Package" means KRF's complete or substantially
complete existing information package known as the Full Agricultural
Package which includes news and statistical information on the
following categories: Agriculture, Economics, General, Grains,
Livestock and Soya and Textiles; provided, however, KRF reserves the
right to modify the content of the FAP Information Package as
commercially reasonable so long as the benefit to DTN under this
Agreement is not materially impaired thereby.
"Fees Earned" means earned revenue of DTN as determined in accordance
with accounting policies and procedures regularly followed by DTN in
the preparation of its financial statements but in accordance with this
Agreement.
"KRF Equipment" means all of the equipment in the possession of the KRF
Subscribers used to obtain and operate the KRF Services except for the
equipment owned by KRF Subscribers.
"KRF Information" means collectively all information and data included
in the FAP Information Package to be transmitted as part of the KRF
Services and any other information packages currently provided to KRF
Subscribers as detailed in Exhibit G or any other information supplied
by KRF at a later time but excluding all weather information and
information unrelated to the agriculture, energy, lumber, metals, softs
or transport industries.
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"KRF Land-Line System" means the Land-Line (dedicated telephone line)
transmission system related to the CommodityCenter platform.
"KRF Optional Services" means those information services where all or a
portion of the KRF Information is offered as an optional package and
DTN has an obligation to charge a separate fee for such services and
share such fees with KRF.
"KRF Services" means all CommodityCenter platform services related to
KRF Subscribers pursuant to Customer Contracts, including but not
limited to information services and electronic mail services.
"KRF Services Business" means the business of providing KRF Services as
conducted by KRF prior to the date of this Agreement.
"KRF Subscribers" means customers who subscribe to the CommodityCenter
platform as listed in Exhibit A.
"KRF System" means the KRF satellite transmission system related to the
CommodityCenter platform.
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"Limited Services" means those information services offered by DTN
which do not provide Real-Time commodity information from the
agriculture, energy, lumber, metals, softs or transport industries or
any information supplied by KRF but do provide any Real-Time commodity
quotations from the agriculture, energy, lumber, metals, softs or
transport industries.
"Limited Service Fees" means the Fees Earned during the Service Period
for Limited Services; provided, however, such fees shall not include
any Fees Earned by DTN from subscribers to Limited Services (i) for one
time installation fees provided such fees do not exceed a reasonable
third party equivalent cost , (ii) for sales, use, privilege, excise,
property or other taxes, assessments or governmental charges or (iii)
for the first $7,500 per month of Optional Service fees. For the
avoidance of doubt any Optional Service fees in relation to Limited
Services in excess of $7,500 per month in relation to Limited Services
plus Base Services will be included as part of Limited Service Fees.
"Optional Services" means those information services provided by Third
Parties and offered as an optional package and DTN has a contractual
obligation to charge a separate fee for such services and share such
fees with the Third Parties.
"Purchased Equipment" means those items of KRF Equipment consisting of
satellite dish, antennae and mounts, cables, color monitors, keyboards,
accessories and printers (specifically excluding LNB and data
receivers) which are in the possession of Converted Subscribers and are
compatible with and may be used in the DTN System without alteration or
modification other than normal field adjustments.
"Purchased Equipment Value" means KRF's net book value of the Purchased
Equipment as of January 1, 1995, determined from the schedule of KRF's
net book value of all KRF Equipment attached as Exhibit "D" to this
Agreement, subject to adjustment as provided in Subsection 4(b).
"Person" means any individual, business trust, corporation, joint stock
company, limited liability company, association, partnership or other
un-incorporated organization, trust or governmental authority.
"Quote Information" means U.S. commodity exchange quotations from the
agriculture, energy, lumber, metals, softs or transport industries .
"Real-Time" means any KRF supplied information and/or continuously
updating Quote Information which does not constitute delayed Quote
Information under the relevant exchange contract terms and conditions.
"Service Period" means the period commencing on the Effective Date and
ending on the last day of the calendar year designated by either party
in a written notice to the other party at least 180 days prior to such
designated date; provided such designated date shall not be earlier
than December 31, 2000 and may be extended as provided in Subsection
23(c).
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"Territory" means collectively the United States of America and Canada.
"Third Party" means any Person unrelated to either KRF or DTN.
2. Agreement to Purchase. Upon the terms and subject to the conditions
contained herein, KRF shall sell and transfer to DTN and DTN shall
purchase and acquire from KRF, at the Closing, certain assets of KRF
used in the KRF Services Business as of the Closing (which assets are
hereinafter collectively called the "Purchased Assets"), described as
follows:
(a) The Purchased Equipment;
(b) All rights of KRF under the Customer Contracts;
(c) All rights of KRF under contracts or agreements listed on
Exhibit "B" attached hereto, relating to the KRF Services
Business which DTN reasonably require to perform its
obligations under the Agreement; provided that KRF shall not
transfer those rights, if any, under such contracts and
agreements relating to KRF activities other than KRF Services
Business;
(d) All warranties held by KRF with respect to the Purchased
Assets to the extent that such warranties are assignable or
KRF will provide the warrantee service; and
(e) All of KRF's customer lists, records, engineering data,
equipment lists, parts lists, data and telephone numbers
relating to the KRF Services Business. To the extent that any
of the above-listed items are not easily separable from
similar items of KRF that are not related to the KRF Services
Business, KRF shall retain possession of the originals of such
items and DTN shall be permitted to copy the portions of such
items which DTN deems necessary. Within thirty (30) days after
Closing KRF shall execute a license agreement in favor of DTN
in the form of Exhibit "C" attached hereto, granting to DTN
the right to review, copy, use, disclose and sub-license all
such items relating to the KRF Services Business which remain
in the possession of KRF after the Closing.
KRF shall retain the specific right to use any list, data or other information
transferred to DTN as part of the Purchased Assets.
3. Liabilities.
(a) DTN shall assume, agree to pay, and discharge when due the
following debts, obligations and liabilities of KRF:
(i) All obligations of KRF under the Customer Contracts
related to the KRF Service or Subscribers set forth
in Exhibit "A" with respect to the period from and
after the Effective Date;
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(ii) All obligations of KRF associated with the contracts
and agreements listed on Exhibit "B" with respect to
the period from and after the Effective Date;
(iii) All obligations associated with any payments required
to be made to third parties in relation to the
Customer Contracts which shall include, but shall not
be limited to, fees payable to exchanges and third
party providers of Optional Services and any taxes
and governmental charges, with respect to the period
from and after the Effective Date;
(iv) All obligations of KRF, excluding any outstanding
lease commitments, associated with the Purchased
Equipment from and after the Effective Date; and.
(b) DTN and KRF agree that DTN is not assuming and shall have no
responsibility for any of the debts, obligations or
liabilities of KRF relating to the KRF Services Business
arising prior to the Effective Date all of which shall remain
the responsibility of KRF. KRF shall retain the right to deal
with its obligations as it deems appropriate.
4. Purchase Price.
(a) The purchase price (the "Purchase Price") for the Purchased
Assets identified in Section 2 and the restrictive covenants
contained in Section 10 shall be the sum of Three Million
Dollars ($3,000,000) plus the Purchased Equipment Value. DTN
and KRF will mutually agree upon the allocation of the
Purchase Price among the Purchased Assets and such restrictive
covenants at the Closing. DTN and KRF shall each prepare IRS
Form 8594 in accordance with such allocation and timely file
such form with the Internal Revenue Service in accordance with
applicable IRS procedures and U.S. Treasury regulations.
(b) At Closing, KRF shall compute an estimate of the Purchased
Equipment Value using KRF's equipment records and based upon
the assumptions that all KRF Subscribers on the date of
Closing will be Converted Subscribers and that those items of
KRF Equipment in their possession which are eligible to be
Purchased Equipment qualify as Purchased Equipment. The actual
Purchased Equipment Value will be determined at the end of the
Conversion Period by reference to the total number of
Converted Subscribers.
(c) At Closing, DTN shall pay to KRF by wire transfer of
immediately available funds the sum of One Million Five
Hundred Thousand Dollars ($1,500,000) plus one-half of the
estimated Purchased Equipment Value. DTN shall pay to KRF by
wire transfer of immediately available funds on the one year
anniversary of the Closing the sum of One Million Five Hundred
Thousand Dollars ($1,500,000). The remainder of the Purchase
Price which shall equal the actual Purchased Equipment Value
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minus one-half the estimated Purchase Equipment Value which
shall have been paid previously, shall be paid by DTN to KRF
by wire transfer of immediately available funds on the last
day of the Conversion Period.
5. Closing.
(a) At Closing, in addition to any other documents specifically
required to be delivered pursuant to this Agreement, KRF
shall, in form and substance reasonably satisfactory to DTN
and its counsel and to the extent reasonably practicable:
(i) Deliver to DTN on magnetic media, if available, the
billing and account receivable database associated
with the KRF Services Business; and
(ii) Deliver or provide access to DTN on magnetic media,
if available, at the date of Closing, all drafts,
microfiche, microfilm, records, data, input forms,
computer transaction sheets and all other similar
information or materials relating to the
servicing of Customer Contracts, provided that in
lieu of delivering any of the foregoing items which
are not easily separable from other assets of KRF,
KRF may deliver to DTN a license agreement in favor
of DTN in the form of Exhibit "C" granting to DTN the
right to review, copy, use, disclose and sub-license
such items.
(b) At the Closing, in addition to any other documents
specifically required to be delivered pursuant to this
Agreement, DTN shall deliver to KRF such assumptions or
undertakings as may be reasonably necessary to evidence DTN's
agreement and obligation to pay, discharge and satisfy the
liabilities and obligations of KRF to be assumed by DTN
pursuant to Subsection 3(a) hereofin form and substance
satisfactory to KRF and its counsel.
(c) As soon as reasonably practical but no later than thirty (30)
days after Closing or such later date mutually agreed between
the parties on a case by case in addition to any other
documents specifically required to be delivered pursuant to
this Agreement, KRF shall, inform and substance satisfactory
to DTN and its counsel:
(i) Deliver to DTN such deeds, bills of sale,
endorsements, assignments, other good and sufficient
instruments of sale, assignment, conveyance and
transfer as shall be required and where available to
effectively vest in DTN all of KRF's right, title and
interest in and to all of the Purchased Assets, free
and clear of all liens, charges, claims, encumbrances
and equities except as otherwise disclosed in this
Agreement;
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(ii) Deliver to DTN all KRF consents to the assignment to
DTN of each contract, agreement, commitment, Customer
Contract or other undertaking comprising a part of
the Purchased Assets that requires such consent;
(iii) Deliver to DTN executed originals of all of the
Customer Contracts, all amendments thereto and all
extensions and renewals thereof;
(iv) Deliver or provide access to DTN all data, documents,
information or materials, if any, theretofore
delivered by customers to KRF which are required by
Customer Contracts to be returned upon expiration or
termination of such contracts;
(v) Deliver or provide access to DTN on magnetic media,
if available, at the date of Closing, all drafts,
microfiche, microfilm, records, data, input forms,
computer transaction sheets and all other similar
information or materials relating to the Purchased
Equipment and the maintenance thereof; and
(vi) Deliver to DTN executed originals of all contracts
and agreements set forth on Exhibit "B" together with
all data, documents, information or materials in
KRF's possession relating to such contracts and
agreements.
(d) As soon as reasonably practical but no later than thirty (30)
days after Closing or such later date mutually agreed between
the parties on a case by case in addition to any other
documents specifically required to be delivered pursuant to
this Agreement, DTN shall provide to KRF access to all DTN
services to provide KRF with the ability to view the KRF
Information provided in DTN services in a form and substance
satisfactory to KRF and its counsel.
6. Other Documentation.
(a) From time to time after the Closing, without further
consideration, KRF shall execute and deliver all such other
instruments of sale, assignments, conveyances and transfers
and shall take all such other actions as are reasonable to
more effectively transfer to and vest in DTN and to put DTN in
possession of, any of the Purchased Assets.
(b) From time to time after the Closing, without further
consideration, DTN shall execute and deliver all such other
instruments of assumption and shall take all such other
actions as are reasonable to more effectively assume the
obligations to pay, discharge and satisfy the liabilities and
obligations assumed by DTN pursuant to Subsection 3(a) hereof.
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(c) From time to time after the Closing, without further
consideration, KRF shall deliver or provide access to DTN
customer service files of KRF relating to the Customer
Contracts, all notices, claims, correspondence, performance
standard reports and other documents, data, information and
materials relating to the Customer Contracts, which are in
KRF's possession, provided that in lieu of delivering any of
the foregoing items which are not easily separable from other
assets of KRF, KRF may deliver to DTN a license agreement in
favor of DTN in the form of Exhibit "C" granting to DTN the
right to review, copy, use, disclose and sub-license such
items;
7. Representations and Warranties of KRF. Subject to and except for the
information which is set forth in a list of exceptions, identified by
the section to which they pertain and contained in a schedule attached
hereto as Exhibit "E" and signed for identification on behalf of DTN
and KRF, KRF represents and warrants to DTN that:
(a) KRF is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) KRF has all requisite corporate power and authority to own,
lease and operate its assets and to carry on the KRF Services
Business as now being conducted;
(c) This Agreement constitutes a valid and legally binding
agreement, enforceable against KRF in accordance with its
terms and the execution and delivery of this Agreement by KRF
and the consummation of the transactions contemplated hereby
have been duly authorized by a duly appointed representative;
(d) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will
not (i) violate or breach or conflict with or constitute a
default under, any of the terms or provisions of KRF 's
Certificate of Incorporation or By-Laws or, to KRF 's
knowledge, any contract or agreement to which KRF is a party
or by which it is bound (and will not be an event which, after
notice or lapse of time or both, will result in any such
violation, breach, conflict, or default) or any law, judgment,
decree, order, rule or regulation of any governmental
authority or court, whether federal, state or local, at law or
in equity, or any arbitration decision, applicable
to DTN or to any of its properties or assets, (ii) knowingly
result in the creation of any security interest, claim, lien,
charge or encumbrance upon any of the property of KRF, (iii)
knowingly terminate or result in the termination of any
agreement to which KRF is a party or (iv) knowingly in any way
affect or violate the terms or conditions of or result in the
cancellation, modification, revocation or suspension of any of
the licenses, approvals, permits or authorizations required by
KRF for the conduct of the KRF Services Business;
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(e) KRF has, to the best of KRF's knowledge, performed all of the
obligations required to be performed by it under any lease,
contract, commitment, distributor agreement or arrangement of
any kind relating to the KRF Services Business; and neither
KRF nor, to the knowledge of KRF, any other party, is in
default under any lease, contract, commitment, distributor
agreement or arrangement of any kind relating to the KRF
Services Business. To the best of knowledge of KRF, no event
has occurred which, after the giving of notice or the lapse of
time or otherwise, would constitute a default under, or result
in a breach of, any lease, contract, commitment, distributor
agreement or arrangement to which KRF is a party or by which
KRF is bound and which relates to the KRF Services Business;
(f) KRF has good and marketable title to all of the Purchased
Assets free and clear of any security interests, claims,
liens, charges or encumbrances whatsoever;
(g) KRF has maintained and will continue to maintain until the
Closing insurance on its assets and business operations,
including but not limited to public liability insurance, of
the kinds and in the amounts customarily carried by
responsible companies of the size of KRF engaged in a business
similar to that of KRF;
(h) With respect to the Customer Contracts, KRF represents and
warrants to DTN that:
(i) KRF is the contracting party that provides the
services under each of the contracts, KRF has full
right and power and is not restricted in assigning to
DTN all of the rights of the service provider set
forth in the contracts and such contracts are not
subject to termination or re-negotiation as a result
of their assignment to DTN;
(ii) The contracts and amendments constitute all of the
current agreements of KRF relating to the performance
of services offered by the KRF Services Business;
(iii) KRF has delivered to DTN correct and complete copies
of all of the contracts and all amendments thereto
and all extensions and renewals thereof;
(iv) KRF has, to the best of KRF's knowledge, received no
written notices of any warranty, indemnity or other
claims by customers under the contracts which have
not been settled to the satisfaction of the customer
claimant, except of an insignificant nature;
(v) No enhancements to services have been promised by KRF
to its customers;
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(vi) KRF has, to the best of KRF's knowledge, received no
written notice of default from any customer under any
of the contracts, except of an insignificant nature;
and
(vii) KRF has, to the best of KRF's knowledge, received no
notice of the filing by any customer of a petition in
bankruptcy, assignment for the benefit of creditors,
a petition seeking reorganization, composition,
liquidation, dissolution or similar arrangement or
the appointment of a trustee, conservator, receiver
or similar fiduciary for any customer or for
substantially all of a customer's assets, except as
disclosed on Exhibit "A", except of an insignificant
nature.
(i) No consent, approval, or authorization of, or filing with,
any governmental authority on the part of KRF is required in
connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated by this
Agreement, except as provided in this Agreement; and
(j) KRF, to the best of KRF's knowledge, is not a party to any
contract, lease or agreement, which would prevent DTN's or
KRF's performance under this Agreement except the Customer
Contracts and those contracts and agreements listed on Exhibit
"B" attached hereto.
8. Representations of DTN. DTN represents and warrants to KRF that:
(a) DTN is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) DTN has all requisite corporate power and authority to enter
into this Agreement, to consummate the transactions
contemplated by this Agreement and to fulfill its obligations
under this Agreement;
(c) This Agreement has been duly executed and delivered by DTN and
constitutes a valid and legally binding agreement enforceable
against DTN in accordance with its terms;
(d) The execution and delivery of this Agreement by DTN and the
performance of its obligations hereunder are not in violation
or breach of, and do not conflict with or constitute a default
under, any of the terms or provisions of DTN's Certificate of
Incorporation or By-Laws or, to DTN's knowledge, any contract
or agreement to which DTN is a party or by which it is bound
(and will not be an event which, after notice or lapse of time
or both, will result in any such violation, breach, conflict,
or default) or any law, judgment, decree, order, rule or
regulation of any governmental authority or court, whether
federal, state or local, at law or in equity, or any
arbitration decision, applicable to DTN or to any of its
properties or assets; and
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(e) No consent, approval or authorization of, or filing with, any
governmental authority on the part of DTN is required in
connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated by this
Agreement, except as provided in this Agreement.
(f) Any customer information provided by KRF to DTN as part of
this Agreement will be held in confidence by DTN where such
information may be considered by the customer or by law as
confidential information.
9. Absence of Brokers. Each of the parties hereto represents to the other
that it has not retained or incurred any liability to any other Person,
for a broker's, finder's or agent's fee for services rendered in
connection with the transactions contemplated by this Agreement; and
each of the parties hereto agrees to indemnify the other against and to
hold the other harmless from any claim made by any Person, claiming to
have been employed by such party as a broker, finder or agent in
connection with the transactions contemplated by this Agreement.
10. Restrictive Covenants.
(a) KRF agrees that during the Service Period KRF shall not
directly or indirectly in the United States of America permit
the distribution or transmission of the FAP Information
Package via any electronic platform delivering Real-Time
commodity quotations; provided, however, that nothing in this
Agreement shall preclude KRF from:
(i) Offering the FAP Information Package or any
information service where the customer pays a total
fee or charge in excess of a monthly equivalent of
$800 (excluding exchange fees) per customer;
(ii) Offering the FAP Information Package or any
information service where the customer pays a total
fee or charge in excess of a monthly equivalent of
$250 (excluding exchange fees) per monitor receiving
the service;
(iii) Offering the FAP Information Package or any
information service to customers of KRF who receive
the information service using their own computer
hardware or software, until such time as DTN's
datafeed is compatible with such customer's computer
hardware and software and the customers agree to
convert to DTN's datafeed. The terms and conditions
for DTN to serve certain KRF datafeed customers will
be included in a separate addendum to this Agreement;
(iv) Offering the FAP Information Package or any
information service of a dial-up, non- real-time,
print or other intermittent nature; or
(v) Providing KRF Services in accordance with the
provisions of this Agreement.
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KRF shall be deemed to be engaged in a restricted activity if any of
its officers, directors, employees or Affiliates shall engage in any
restricted activity either directly or indirectly, whether for their
own account or for that of any other Person and whether as a
shareholder, partner or investor possessing any ownership interest in
any such Person, or as principal, agent, proprietor, consultant or in
any other capacity.
(b) KRF agrees that during the Service Period neither KRF nor its
Affiliates shall, directly or indirectly, solicit any of DTN's
subscribers to the DTNstant Service existing as of the
Effective Date or any of the KRF Subscribers for the purpose
of obtaining their trade in the business of providing any of
the KRF Services except where DTN is not able to provide the
subscriber with the delivery platform or information it
requires.
(c) If any court having jurisdiction at any time hereafter shall
hold any of such restrictive covenants to be unenforceable or
unreasonable as to its scope, territory or period of time, and
if such court in its judgment or decree shall declare or
determine the scope, territory or period of time which such
court deems to be reasonable, then such scope, territory or
period of time, as the case may be, shall be deemed
automatically to have been reduced to that declared or
determined to be reasonable by such court. Notwithstanding the
foregoing, if any clause or provision of this Section 10 shall
be unenforceable, then such clause or provision shall be
deemed to be deleted from this Section 10, but every other
clause and provision shall continue in full force and effect.
These covenants are an integral part of the transactions
contemplated by this Agreement and DTN would not have entered
into this Agreement in the absence of such covenants. DTN and
KRF agree that although a portion of the Purchase Price
provided for in this Agreement is allocated to such
restrictive
covenants, such allocation does not in any way reflect the
damages which would accrue to DTN in the event of any breach
of such restrictive covenants.
(d) KRF acknowledges that the agreements contained in this Section
10 are reasonable and necessary in order for DTN to receive
the benefits which are intended to accrue to DTN from the
transactions contemplated by this Agreement and that any
breach thereof will result in irreparable injury to DTN for
which DTN has no adequate remedy at law. KRF therefore agrees
that, in the event KRF breaches any of the agreements
contained in this Xxxxxxx 00, XXX xxxxx xx authorized and
entitled to seek from any court of competent jurisdiction (i)
a temporary restraining order, (ii) preliminary and permanent
injunctive relief, (iii) an equitable accounting of all
profits or benefits arising out of such breach and (iv)
direct, incidental and consequential damages arising from such
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breach. Such rights or remedies shall be cumulative and in
addition to any other rights or remedies to which DTN may be
entitled.
11. KRF's Employees. Unless DTN so desires, which determination shall be
made within thirty (30) days after Closing, DTN shall have no
obligation to hire any employees of KRF and KRF shall be responsible
for any and all obligations to any and all of its employees, including
but not limited to any salaries, bonuses, vacation pay, retirement
benefits, sick pay, insurance premiums, severance pay and other fringe
benefits.
12. Indemnification by KRF.
(a) Except for those debts, obligations and liabilities expressly
assumed by DTN pursuant to Subsection 3(a) hereof, DTN is not
assuming and shall have no responsibility for any of the
debts, obligations or liabilities of KRF, all of which shall
remain the responsibility of KRF and KRF hereby agrees to
indemnify and hold DTN harmless from any loss, liability,
damage, cost or expense (including but not limited to
reasonable attorneys' fees) ("Damages") arising by reason of
KRF's nonpayment or nonperformance of any such debts,
obligations or liabilities not expressly assumed by DTN.
(b) KRF agrees that all claims received by DTN relating to the KRF
Services Business which are received by DTN after the Closing,
but which relate to the time period prior to the Closing,
including any fees or penalties which must be paid, shall be
the responsibility of KRF and that KRF, but not DTN, can make
any adjustments KRF deems appropriate to adjust such claims.
(c) KRF shall indemnify and hold DTN harmless from any Damages
arising by reason of any claim of any customer of KRF based
upon any action or omission to act by KRF prior to the
Closing.
(d) KRF agrees to indemnify DTN against any Damages incurred or
sustained by DTN as a result of (i) any breach of this
Agreement by KRF, (ii) any material inaccuracy in any of the
representations or warranties made by KRF in this Agreement or
(iii) any material inaccuracy or misrepresentation in any
certificate or other document or instrument delivered by KRF
in accordance with the provisions of this Agreement.
(e) KRF agrees to indemnify DTN against any Damages arising by
reason of non-compliance by KRF with the Bulk Sales provisions
of the Uniform Commercial Code or any equivalent statute of
any state or other jurisdiction, as they relate to the sale of
the Purchased Assets.
13. Indemnification by DTN.
(a) DTN hereby agrees to indemnify and hold KRF harmless from any
Damages arising from the liabilities assumed by DTN pursuant
to section 3(a).
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(b) DTN agrees that all claims relating to the KRF Services
Business which are received by DTN or KRF after the Closing,
and which relate to the time period after the Closing,
including any fees or penalties which must be paid, shall be
the responsibility of DTN and that DTN, but not KRF, can make
any adjustments DTN deems appropriate to adjust such claims.
(c) DTN shall indemnify and hold KRF harmless from any damages
arising by reason of any claim of any customer of DTN or any
information provider or any other third party provider of
equipment, software or services which relate to the time
period after the Closing, except that such indemnity shall not
relate to any loss, damage, cost, claim or expense arising
solely from content or information created solely by KRF or
arising solely from the negligence or willful misconduct of
KRF or its appointed gents or representatives.
(d) DTN agrees to indemnify KRF against any damages incurred or
sustained by KRF as a result of (i) any breach of this
Agreement by DTN, (ii) any material inaccuracy in any of the
representations or warranties made by DTN in this Agreement or
(iii) any material inaccuracy or misrepresentation in any
certificate or other document or instrument delivered by DTN
in accordance with the provisions of this Agreement.
14. Taxes; Prorating.
(a) The parties agree that all sales and other similar taxes (not
including state or federal income taxes) payable in connection
with the transfer of the Purchased Assets shall be paid by
DTN.
(b) The parties agree that all property taxes, annual license fees
and any other similar annual levies or assessments due,
whenever assessed, as a result of the ownership or operation
of any of the Purchased Assets shall be prorated between DTN
and KRF, with KRF to have the liability for said taxes, fees
and assessments before the Effective Date and DTN to have the
liability for said taxes, fees and assessments from and after
the Effective Date. Within thirty (30) days after Closing, KRF
will provide to DTN an estimate of all such taxes, fees and
assessments payable for the period beginning on the Effective
Date and ending as of the end of the current fiscal period for
each collecting authority and shall make available to DTN
copies of all assessments, notices and related documents.
(c) KRF agrees to pay to DTN within thirty (30) days after Closing
(i) all prepaid fees of any kind received by KRF pursuant to
the Customer Contracts which accrue on or after the Effective
Date and (ii) all deposits of money held by or on behalf of
KRF pursuant to the Customer Contracts.
15. NON-ASSIGNABLE RIGHTS. Despite anything contained herein to the
contrary, this Agreement shall not constitute an agreement to assign
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any contract, order, commitment, license or right if an assignment or
attempted assignment thereof without the consent of the other party
thereto would constitute a breach thereof or in any material way affect
the rights of KRF thereunder or hereunder unless such consent is
obtained. If any such consent is not obtained or if an attempted
assignment would be ineffective and would materially affect KRF's
rights thereunder, so that DTN would not in fact receive all such
rights, the parties agree to cooperate in any reasonable arrangement
designed to assure that DTN shall have all the benefits, rights,
obligations and duties under such contracts, orders, commitments,
licenses and rights.
16. CONFIDENTIAL AGREEMENT OF THE PARTIES. The terms and conditions of this
Agreement are and shall remain and be kept completely confidential by
the parties hereto, their employees, agents and legal counsel. Except
as required by law, regulations or auditing requirements, the terms of
this Agreement shall not be disclosed to any third person by either
party without the prior written consent of the other. There should be
discussion or disclosure of the existence or details of this Agreement
except as absolutely required in preparation for Closing, prior to
Closing. In addition, no press release shall be issued by either party
without the prior written consent of the other party , which consent
shall not be unreasonably withheld.
17. CONDUCT AND TRANSACTIONS OF KRF PRIOR TO CLOSING. From the date of this
Agreement until the Closing, except to the extent expressly permitted
by this Agreement or otherwise consented to by an instrument in writing
signed by DTN:
(a) KRF will keep the KRF Services Business and organization
intact and will not take or permit to be taken or do or suffer
to be done anything other than in the ordinary course of its
business as the same is presently being conducted and KRF will
use its best efforts to keep available the services of its
officers, employees and agents and to maintain the goodwill
and reputation associated with the KRF Services Business;
(b) KRF will not make any change in its articles of incorporation
or By-Laws, which would preclude, hinder, interfere with or
otherwise impair the ability of KRF to perform its obligations
pursuant to this Agreement and consummate the transactions
contemplated hereby;
(c) KRF will exercise its best efforts to maintain the Purchased
Assets, tangible or intangible, in good operating condition
and repair and take all steps necessary to keep its operations
functioning as they presently are;
(d) KRF will not sell, lease or dispose of, or make any contract
for the sale, lease or disposition of, any of the Purchased
Assets other than in the ordinary and usual course of its
business consistent with the representations and warranties of
KRF contained herein and not in breach of any of the
provisions of this Section 17;
(e) KRF shall not encumber or permit to be encumbered any of the
Purchased Assets; and
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(f) KRF shall not do, or cause to be done, any act or suffer, or
cause to be suffered, any omission which would cause to be
breached, or might result in a breach of, any of the
representations, warranties or covenants of KRF contained
herein if the same were made anew immediately after any such
act or omission.
18. Conditions Precedent to DTN's Obligations. Each of the agreements of
DTN to be performed by it at the Closing pursuant to this Agreement
shall be subject to the fulfillment of each of the following
conditions, any one or more of which may be waived, in whole or in
part, in writing, by DTN:
(a) Each of the representations and warranties of KRF set forth in
Section 7 hereof shall be true and correct both on the date
hereof and on the date of the Closing as if made at that time,
except insofar as changes contemplated by this Agreement have
occurred after the date hereof;
(b) KRF shall have performed and complied with all agreements,
undertakings and obligations which are required to be
performed or complied with by it at or prior to the Closing;
and
(c) At the Closing, KRF shall have delivered to DTN all of the
items required to be delivered under Subsection 5(a) of this
Agreement.
19. Conditions Precedent to KRF's Obligations. Each of the agreements of
KRF to be performed by it at the Closing pursuant to this Agreement
shall be subject to the fulfillment of each of the following
conditions, any one or more of which may be waived, in whole or in
part, in writing, by KRF:
(a) The representations and warranties of DTN set forth in Section
8 of this Agreement shall be true and correct both on the date
hereof and on the date of the as if made at that time, except
insofar as changes contemplated by this Agreement have
occurred after the date hereof;
(b) DTN shall have performed and complied with all agreements,
undertakings and obligations as are required to be performed
or complied with by it at or prior to the Closing; and
(c) At the Closing, DTN shall have delivered to KRF all of the
items required to be delivered under Subsection 5(b) of this
Agreement.
20. Risk of Loss. KRF shall bear all risk of loss prior to the Closing and
DTN shall bear all risk of loss after the Closing with respect to the
tangible personal property being sold by KRF to DTN pursuant to this
Agreement. In the event of significant loss in the Purchased Equipment
between Execution and prior to Closing, DTN and KRF may agree to an
137
equitable adjustment in the Purchase Price or if there is a loss of a
material portion of the Purchased Equipment being purchased by DTN
between Execution and prior to Closing, either DTN or KRF may elect to
terminate this Agreement.
21. Conversion of KRF Subscribers. No conversion or other contact of KRF
customers may be made prior to the beginning of the Conversion Period.
(a) KRF Subscribers presently receive KRF Services via both the
KRF System and the KRF Land-Line System. During the Conversion
Period, KRF shall continue to transmit the applicable KRF
Information to those KRF Subscribers receiving services on the
KRF Land-Line System in compliance with their Customer
Contracts and DTN will reimburse KRF for the cost of the
land-lines and any other clearly identifiable and documented
costs that KRF would otherwise not incur if the KRF
Subscribers had been converted to the DTN System.
(b) Prior to Xxxxx 00, 0000, XXX will install at DTN's expense, in
the KRF Equipment of each KRF Subscriber using the KRF System
replacement parts and other equipment necessary to enable such
subscribers to receive the applicable KRF Information using
the KRF Equipment via a datafeed transmitted over the DTN
System (the "Installation"). Prior to the Installation for
each such subscriber, KRF shall continue to transmit over the
KRF System the applicable KRF Information to such subscriber
in compliance with its Customer Contract. DTN will reimburse
KRF for any clearly identifiable and documented costs
associated with this continued support that KRF would
otherwise not incur if the KRF Subscriber had been converted
to the DTN System. After the Installation but before the
Conversion (as defined in Subsection 21(c)) for each such
subscriber, such subscriber shall receive the applicable KRF
Information using the KRF Equipment and DTN's satellite
transmission of the KRF Information furnished to DTN pursuant
to Section 22.
Notwithstanding the foregoing provisions of this subsection
(b), DTN may forego the Installation for any KRF Subscriber if
the Conversion of such subscriber is completed prior to March
31, 1996.
(c) During the Conversion Period, DTN will replace some or all of
the KRF Equipment with equipment necessary to enable each KRF
Subscriber to obtain the applicable KRF Information via the
DTN System without use of any KRF Equipment other than
Purchased Equipment (the "Conversion"). Upon completion of
each Conversion, DTN will cause to be delivered to KRF, in
proper packaging to be furnished by the Converted Subscriber
or KRF, the KRF Equipment known by DTN to be in the possession
of the Converted Subscriber other than Purchased Equipment.
DTN will complete the Conversion of all KRF Subscribers by the
end of the Conversion Period.
(d) Prior to the Effective Date, KRF shall at its expense maintain
and replace the KRF Equipment as required by the Customer
Contracts. After the Effective Date, DTN shall at its expense
138
maintain and replace the Purchased Equipment as required by
the Customer Contracts. In addition, during the Conversion
Period, until returned to KRF as provided in Subsection 21(c),
DTN shall at its expense maintain and replace the KRF
Equipment that is not Purchased Equipment; provided, however,
without further consideration, KRF shall from time to time at
DTN's expense as requested by DTN during the Conversion Period
furnish to DTN the tools, parts, supplies and replacements
necessary to service and maintain such equipment in proper
working order. In addition, KRF shall allow DTN reasonable
access to qualified personnel of KRF for the purpose of
assisting DTN's customer service representatives, field
technicians and engineers in maintaining uninterrupted service
to KRF Subscribers as provided in this Agreement. KRF also
shall make available to DTN prior to the Effective Date, up to
two hundred and fifty (250) or such other lower number based
on KRF current inventory levels as KRF shall determine, Valley
Receivers of the type included in the KRF Equipment to which
DTN will at its expense install replacement parts necessary
for such receivers to receive the KRF Information to be
transmitted over the DTN System. These supplemental Valley
Receivers will be used by DTN to facilitate the Installations
referred to in Subsection 21(b). KRF authorizes DTN to install
such replacement parts in the Valley Receivers and DTN further
agrees to return such Valley Receivers in the same condition
as delivered to DTN, fair wear and tear accepted. Any such KRF
receivers not returned to KRF by 01 April 1996 will be charged
to DTN at their net book value as of 01 January 1996. As of
the Effective Date, without further consideration, KRF agrees
to provide at a time mutually convenient to both parties at
DTN's facility in Omaha, Nebraska, up to seventy (70) hours of
in-house customer service and field technician training on how
to handle inquiries from KRF Subscribers, troubleshoot and
service and maintain the KRF Equipment. Any training
requirements above and beyond the initial seventy (70) hours
will be charged to DTN at full cost.
(e) During the Conversion Period, without further consideration,
KRF agrees to cooperate with DTN to convert all KRF
Subscribers from the KRF System or KRF Land-Line System, as
applicable, to the DTN System; provided, however, KRF shall
not be required to incur significant out-of-pocket expenses,
except as specifically provided in this Agreement. Prior to
the Effective Date, DTN and KRF will prepare a letter to be
sent from KRF to all KRF Subscribers explaining the conversion
to the DTN System and informing the KRF Subscribers that your
KRF Information will now be provided on the DTN System. Such
letter is to be accompanied by promotional materials furnished
by DTN and delivered at times designated by DTN. The content
of such letter shall be mutually agreeable to DTN and KRF. DTN
will be responsible for assembly of such mailing and will pay
the postage charges.
(f) As an accommodation to DTN, without further consideration, KRF
will xxxx KRF Subscribers for all services which are to be
billed for the first full month following the Effective Date
pursuant to the Customer Contracts and receive on behalf of
139
DTN all payments relating to the accounts receivable of DTN
generated from such xxxxxxxx. DTN will offset against the
payments next becoming due to KRF pursuant to Section 23, the
amounts of the payments received from time to time by KRF with
respect to such accounts receivable of DTN. KRF shall not have
any obligations with respect to such receivable, except to
have the amounts received credited to DTN as mentioned above
and KRF does not to any extent whatsoever guarantee the
collection or collectibility of such receivable, which shall
remain the exclusive property of DTN. DTN shall remit to KRF,
upon receipt, any payments received by DTN from KRF
Subscribers which represent payment for KRF Services rendered
prior to the Effective Date; provided, however, DTN shall not
have any obligations with respect to KRF's accounts
receivable, except to remit the amounts received as mentioned
in this sentence and DTN does not to any extent whatsoever
guarantee the collection or collectibility of such receivable,
which shall remain the exclusive property of KRF. DTN shall be
responsible for billing and collecting all fees due from KRF
Subscribers for all periods after the first month following
the Effective Date.
(g) KRF shall permit DTN to keep and maintain, at DTN's expense,
for a period no longer than six months from the Closing and
involving no more than three employees at any one time,
employees (to be designated by DTN) at KRF's principal place
of business for the purpose of familiarizing themselves with
the KRF Services Business.
22. KRF Information; License.
(a) KRF agrees to provide all of the KRF Information to DTN during
the Service Period as provided in this Agreement. The KRF
Information shall be furnished to DTN, to enable DTN to
broadcast the KRF Information over the DTN System to the KRF
Subscribers in compliance with their Customer Contracts and to
DTNstant subscribers and DTN shall reimburse KRF for any
clearly identifiable costs. Such costs to be mutually agreed
between the parties.
(b) KRF will provide the equipment described on Exhibit "F" which
is necessary for KRF to provide to DTN by telecommunications
lines and support equipment, the DTN Information so that DTN
can directly input the KRF Information onto the DTN System.
KRF will provide the KRF Information to DTN in the format
described on Exhibit "F".
(c) KRF hereby grants to DTN a license to sell and broadcast the
KRF Information to the KRF Subscribers and all present and
future subscribers to the DTNstant Service within the
Territory during the Service Period upon the terms and
conditions described in this Agreement KRF further grants to
DTN a license to make available to subscribers of DTN
services, other than the DTNstant service, the KRF Information
as a KRF Optional Service at a fee to be mutually agreed
between the parties.
140
(d) KRF assumes full responsibility for the content of the KRF
Information delivered to DTN or KRF Subscribers pursuant to
the terms of this Agreement. KRF represents and warrants to
DTN that KRF has and will continue to have the full power,
right and authority to obtain, transmit and distribute the KRF
Information to DTN for distribution by DTN as contemplated by
this Agreement. KRF further represents and warrants to DTN
that DTN's broadcast of the KRF Information to its subscribers
as contemplated by this Agreement will not infringe upon the
rights of any third party respecting copyright, trade secret
or any privacy interest in the Territory subject to receiving
all consent that may be required. DTN acknowledges that
information contained in the KRF Information is obtained from
various sources which KRF believes to be reliable. Subject to
the indemnification obligations of KRF set forth in this
Agreement KRF does not guarantee and makes no warranties or
representations with respect to the sequence, accuracy,
completeness or timeliness of any information furnished
hereunder; nor does it represent that the information
disseminated may be relied upon for trading purposes.
(e) DTN agrees that prior to the broadcast of any KRF Information
to a DTN subscriber on the DTN System, DTN will obtain a DTN
Subscription Agreement substantially in the form of Exhibit H
subject to the normal customer renewal or new subscription
activity. Any substantial changes to these terms and
conditions, which shall include but shall not be limited to
changes to any indemnity, warranty, limited liability and use
provisions will require the prior written consent of KRF which
shall not be unreasonably withheld.
(f) DTN agrees where not otherwise obvious to DTN users of the KRF
Information, to attribute the KRF Information as "Source KRF"
or similar attribution and to clearly indicate on any
marketing or advertising material that KRF is the source of
the KRF Information.
(g) DTN agrees to title and market any DTN service which includes
a significant amount of KRF Information as a standard
component as "DTNstant / Xxxxxx-Xxxxxx Financial" unless
otherwise agreed between the parties.
(h) KRF shall retain all rights to, title to, ownership of,
copyright to and any other interest in any information
supplied to DTN. DTN acknowledges and agrees that all of the
information provided by KRF as part of this agreement is the
sole and exclusive property of KRF. DTN agrees to not modify,
archive (for other than operational and maintenance purposes),
create derivatives or use the information provided by KRF in
any way other than contemplated by this agreement and shall be
permitted to only utilize the information provided by KRF for
the sole purpose of permitting subscribers in the territory to
receive the information only for their internal use.
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23. Revenue Sharing.
(a) In consideration for the rights granted and the KRF
Information provided by KRF pursuant to Section 22, DTN agrees
to share with KRF the Base Service Fees, Limited Service Fees
and Optional Service fees as provided in this section. DTN
agrees to pay to KRF that percentage of the Base Service Fees
set forth below opposite the period with respect to which such
Base Service Fees were earned by DTN:
Period Percentage
----------------------------------- ----------
From the Effective Date to Month 12 30%
From Month 13 to Month 24 20%
From Month 25 to December 31, 1997 15%
From January 1, 1998 to December 31, 1998 14%
From January 1, 1999 to December 31, 1999 13%
From January 1, 2000 to December 31, 2000 13%
From January 1, 2001 to December 31, 2001 [1] 12%
From and after January 1, 2002 [1] 11%
From and after January 01, 2003 [1] 10%
Notwithstanding the foregoing percentages, if over the period of
twenty-four (24) months from the Effective Date there are less than
1,000 Converted Subscribers plus KRF Subscribers, then, after written
claim has been received from DTN and verification of that claim has
been independently audited and substantiated, the percentage of Base
Service Fees to be paid to KRF during the remainder of the Service
Period shall be ten percent (10%).
DTN agrees to pay to KRF a percentage share, to be mutually agreed
between the Parties, of any KRF Optional Service revenue where the KRF
Information is offered as a KRF Optional Service as described in
Section 22(c).
DTN agrees to pay to KRF five percent (5%) of Limited Service Fees to
the extent that such Limited Service Fees exceed $35,000 per month or
the amount of Limited Service Fees at the Effective Date of the
agreement whichever is lower.
DTN shall pay the applicable percentages of the KRF Optional Service
fees, the Base Service Fees and Limited Service Fees to KRF within
fifteen (15) days after the end of each calendar quarter based upon the
Base Service Fees and Limited Service Fees for such calendar quarter.
DTN shall have the right to offset against the payments due KRF
pursuant to this subsection, any moneys due to DTN from KRF pursuant to
this Agreement. Each payment by DTN to KRF pursuant to this subsection
shall be accompanied by a statement detailing the customers subscribing
to any Base Services, Limited Services or any Optional Services
together with a written summary of how such amount was computed.
(a) KRF shall have the right, at its expense, upon at least ten
(10) days prior written notice to DTN and during normal
business hours, to have access to DTN's books and records in
141
order to perform an audit to determine DTN's compliance with
the revenue sharing provisions of this Section 23. DTN shall
be obligated to pay any underpayment of fees revealed by such
audits plus interest at the then prime rate. In addition if
such underpayment represents more than 5% of the total fees
due for the relevant period, DTN shall be obligated to
reimburse KRF for the cost of the audit plus a penalty of 10%
of the underpayment amount.
(b) Except in the case of default under section 25,
notwithstanding any other contrary provision contained in this
Agreement, if KRF elects to terminate the Service Period prior
to December 31, 2000, then DTN has the option, exercisable in
its sole discretion, to unilaterally extend the Service Period
for an additional two (2) years after the date at which the
Service Period otherwise would end. Only sections 1 - 9, 12 -
16, 20, 22 - 30 of this Agreement shall still apply during
such additional two year period, except that in lieu of the
revenue sharing arrangements provided in this Section 23, DTN
shall pay to KRF on the last day of each calendar quarter
during such additional two year period an amount equal to the
aggregate payment due to KRF pursuant to Subsection 23(a) for
the last calendar quarter preceding such additional two year
period.
24. PROVISION OF EXCHANGE QUOTE INFORMATION. For the convenience of DTN,
KRF agrees to include in the datafeed provided as part of this
Agreement, the normal quote information from the Winnipeg Futures and
London Metals Exchanges. DTN agrees that it must first arrange to gain
full and proper rights to distribute this information from those
corresponding exchanges prior to distributing this information. DTN
will hold KRF harmless for any exchange fees or other costs related to
DTN's use of this exchange information.
25. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of DTN and KRF, respectively, as set forth in this
Agreement, shall survive the Closing and the expiration or termination
of this Agreement.
26. DEFAULT. This Agreement may be terminated by either party upon thirty
(30) days prior written notice that the other party has breached the
provisions of this Agreement and has not cured such breach within such
notice period. Upon the occurrence of any event of default, the
non-defaulting party may exercise any right or remedy which may be
available to it under applicable law including, but not limited to, the
right to pursue the specific performance of any agreement contained
herein. In addition, the defaulting party shall be liable for, and
reimburse the non- defaulting party for, all reasonable and necessary
legal fees and other costs and expenses incurred by the non-defaulting
party as a result of such defaults or the exercise of the
non-defaulting party's remedies. No right, power or remedy conferred by
this Agreement shall be exclusive of any other right, power or remedy
referred to herein or now or hereafter available at law, in equity, by
statute or otherwise.
27. NO ASSIGNMENT. Neither party may assign or subcontract its rights,
duties or obligations under this Agreement to any Person, except with
the prior written consent of the other party, which consent may be
142
withheld for any reason whatsoever, provided however, that nothing
herein shall prevent any change in ownership of KRF or the assignment
of such rights and obligations to any entity in the Xxxxxx-Xxxxxx group
of companies..
28. EXPENSES OF TRANSACTION. Except as specifically provided in this
Agreement, the parties hereto each shall bear all of the expenses
respectively incurred by them in connection with this Agreement and the
consummation of the transactions contemplated hereby.
29. ENTIRE AGREEMENT. This document, including the Exhibits hereto,
contains the entire agreement between the parties hereto with respect
to the subject matter of this Agreement; and there are no other
agreements, representations, warranties, or covenants, written or oral,
with respect to the transactions contemplated by this Agreement which
are not expressly set forth in this document.
30. AMENDMENTS. This Agreement may be amended by letter or other document
which by its terms specifically states that it is an amendment to this
Agreement; provided, that such letter or other document shall be signed
by all of the parties hereto.
31. NOTICES. Any notice which may be permitted or required to be given
pursuant to this Agreement shall be delivered personally or shall be
sent by a nationally recognized overnight courier or by United States
registered or certified mail, postage prepaid, addressed as set forth
below:
If to KRF: Xxxxxx-Xxxxxx Financial, Inc.
00 Xxxx Xx.
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Managing Director / Americas
With a copy to: Xxxxxx-Xxxxxx Financial, Inc.
0000 Xxxx 00xx Xx.
Xxxxxxx, XX 00000
Attn.: Vice President / Finance
If to DTN: Data Transmission Network Corporation
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn.: President
With a copy to: R. Xxxxx Xxx, Esq.
Xxxxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
or to any other address as any party may by written notice to the other party in
accordance with this Section designate.
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1 BINDING EFFECT. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns.
1 SECTION HEADINGS. The headings of the sections in this Agreement are
for the purpose of reference only and shall not limit or otherwise
affect the meaning of any of the provisions of this Agreement.
2 INCORPORATION OF EXHIBITS. Each of the Exhibits referred to herein and
attached hereto are incorporated herein and shall be deemed to be a
part of this Agreement.
3 ATTORNEYS' FEES. In the event of any action or proceeding brought in
connection with this Agreement, the prevailing party therein shall be
entitled to recover its costs and reasonable attorneys' fees.
4 PAYMENT LOCATION. All payments due under this Agreement from DTN to KRF
will be made by wire transfer to: Xxxxxx-Xxxxxx Financial, Chase
Manhattan Bank, New York, NY , Account No:
5 APPLICABLE LAW. This Agreement shall be governed in all respects by the
laws of the State of Nebraska.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be duly executed on their respective behalves by their respective duly
authorized officers, all as of the day and year first above written.
FOR: XXXXXX-XXXXXX FINANCIAL, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X'Xxxxx
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Title: Managing Director
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Date: 13 July 1995
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FOR: DATA TRANSMISSION NETWORK
CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Executive Vice President and Chief Operating Officer
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Date: 7/13/95
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144
EXHIBIT "A"
Schedule of KRF Subscribers
(To be delivered after Closing)
EXHIBIT "B"
Contracts and Agreements other than Customer Contracts
(To be delivered after Closing)
EXHIBIT "C"
License Agreement
(To be delivered after Closing)
145
EXHIBIT "D"
Values Assigned to Purchased Equipment
(estimate pr Section 4(b) delivered after Closing
details to be delivered after Closing)
EXHIBIT "E"
Schedule of Exceptions
(1) In some situations, by special agreement, certain subscribers have in
their Service Agreement a requirement to obtain written consent from the
Subscriber prior to assignment of their Service Agreement.
DTN/KRF will work together to obtain the consent of the Subscriber to
assignment.
(2) Certain information relating to optional services and private customer E
Mail may or may not be deliverable to DTN without specific agreement of
the source.
146
EXHIBIT "F"
Description of Input Equipment and Format /
Specifications for KRF Information Datafeed
147
EXHIBIT "G"
Description of KRF Information
148
EXHIBIT "H"
DTN Subscription Agreement
(To be delivered after Closing)
149
EXHIBIT "I"
ALLOCATION OF PURCHASE PRICE
Purchased Equipment* $1,000,000
Subscription Lists/Contracts** 4,970,000
-----------
Total Purchase Price $5,970,000
===========
* This number represents the estimated value of those items of KRF Equipment
which are in the possession of Converted Subscribers and are compatible with and
may be used in the DTN System without alteration or modification other than
normal field adjustments. This estimation may be adjusted when full conversion
is complete.
** This number includes an estimation of the revenue sharing agreement that
exceeds 15% in years one and two. The 15% represents the amount that DTN would
pay for news services that KRF provides to the subscribers. Above the 15%
constitutes additional monies that will be paid by DTN to KRF for the
subscription lists/contracts. This estimation may be adjusted at the end of year
one and/or year two.
150
