AGREEMENT
THIS AGREEMENT is made and entered into and is effective as of May 1,
1999, by and between DATA TRANSMISSION NETWORK CORPORATION, a Delaware
corporation (hereinafter "DTN"), and SMARTSERV ONLINE, INC., a Delaware
corporation (hereinafter "SmartServ").
W I T N E S S E T H:
WHEREAS, SmartServ and DTN previously entered into a Software License
and Service Agreement (the "License Agreement") dated as of May 1, 1998,
pursuant to which SmartServ (i) licensed to DTN certain proprietary software
programs known as the Internet Software (as such term is defined in the License
Agreement) utilized to provide Internet Services (as such term is defined in the
License Agreement) to DTN's customers and (ii) agreed to provide other services
to DTN;
WHEREAS, SmartServ and DTN previously entered into a Source Code Escrow
Agreement (the "Escrow Agreement") dated as of May 1, 1998, pursuant to which
SmartServ agreed to place the source code for the Internet Software in escrow to
be released to DTN upon breach of SmartServ's obligations set forth in the
Escrow Agreement or the License Agreement;
WHEREAS, SmartServ and DTN previously entered into a letter of intent
(the "Letter of Intent") dated January 26, 1999, setting forth the terms and
conditions upon which a wholly owned subsidiary of DTN would merge with
SmartServ;
WHEREAS, the parties hereto desire to (i) amend certain terms and
provisions of the License Agreement as specifically set forth in this Agreement
and terminate the Letter of Intent, (ii) provide for repayment of indebtedness
previously advanced by DTN to SmartServ, (iii) provide for additional
consideration to be given by DTN to SmartServ, (iv) provide for SmartServ's
issuance to DTN of warrants to purchase 300,000 shares of the Common Stock of
SmartServ at an exercise price of $8.60 per share, and (v) agree upon other
matters specifically set forth in this Agreement;
NOW, THEREFORE, in consideration of the above recitals which are made a
contractual part of this Agreement, and in consideration of the mutual
agreements, provisions and covenants set forth in this Agreement, the parties do
hereby agree as follows:
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SECTION 1
CONSIDERATION
1.1 In consideration of the parties entering into this Agreement and
performing the obligations to be performed by them pursuant to the terms and
provisions of this Agreement, (i) SmartServ agrees to repay to DTN in cash
concurrently with the execution of this Agreement the cash advances previously
made to SmartServ in the aggregate amount of $1,958,300 and (ii) DTN agrees to
pay to SmartServ in cash concurrently with the execution of this Agreement the
sum of $5,458,300.
SECTION 2
AMENDMENTS TO LICENSE AGREEMENT
2.1 Defined Terms. The following definitions shall be inserted in
alphabetical order in Section 1.1 of the License Agreement:
"Internet Services means those continuous market quotations
and other financial and news information services offered from time to
time on the internet by DTN, which use the Internet Software to allow
its customers direct internet access (non-wireless) to such services.
Internet Services Revenue means (i) the revenue received by
DTN from the Subscribers for the Internet Services which consist of
initiation fees, installation fees and periodic subscription fees plus
(ii) the transaction revenue received by DTN from Subscribers and third
parties for equities, futures and/or options trading orders executed by
Subscribers using an Order Entry System not owned or licensed by
SmartServ.
Object Code means the form of Internet Software resulting from
the translation or processing of the Source Code by a computer into
machine language or intermediate code in a form that is not convenient
to human understanding but which is appropriate for execution or
interpretation by a computer, together with related user documentation.
Order Entry System means an equities, futures and/or options
trading order entry or routing software application and electronic
network directly connected (non-wireless) to the internet that provides
Subscribers the ability to effect equities, futures and/or options
trades.
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SmartServ Trading Revenue means the transaction revenue
received by DTN from Subscribers and third parties for equities,
futures and/or options trading orders executed by Subscribers using an
Order Entry System owned or licensed by SmartServ.
Source Code means, with respect to the Internet Software, the
program instructions and codes written by humans with the intention
that the instructions and codes be compiled and interpreted by a
computer, including all existing commentary, explanations, control
procedures, record layouts for all files and program listings-source
codes, design documentation, user manuals, programmers' guides, system
guides, current compilation instructions, and all other user
documentation and programmer documentation, including data flows, data
structures, control logic, flow diagrams, and principles of operation,
useful for design, modification and maintenance of the Source Code by a
programmer.
Subscribers means those customers of DTN who subscribe to
Internet Services.
Y2K Compliant means: (i) the occurrence in or use by the
Internet Software of dates on or after January 1, 2000 ("millennial
dates") will not adversely affect the performance of the Internet
Software with respect to date-dependent data, computations, output or
other functions (including but not limited to calculating, comparing
and sequencing) and that the Internet Software will create, store,
process and output information related to or including millennial dates
without errors or omissions and at no additional cost to DTN."
2.2 Perpetual License. Section 2.1 of the License Agreement is deleted
in its entirety and the following is inserted in its place:
"2.1 The Licensed Software. SmartServ hereby grants to DTN and
its subsidiaries an exclusive, perpetual, worldwide license (the
"License") to use the object code of the Internet Software as part of
DTN's and its subsidiaries' business operations and to allow the
subscribers of DTN and its subsidiaries to use the Internet Software to
access the Internet Services. SmartServ agrees not to license, sell,
convey or otherwise transfer to anyone other than DTN any rights in the
Internet Software except SmartServ may license the "Order Entry FIX
Protocol" software to the Bank of New York as provided in this
paragraph. In addition, SmartServ shall not use or allow anyone other
than DTN to use the Internet Software to compete with the Internet
Services. If during any calendar year ending after year 2000 (the "Base
Year"), the aggregate SmartServ Trading Revenue for such calendar year
does not equal or exceed the aggregate SmartServ Trading Revenue for
the Base Year plus 30% thereof for each calendar year following the
Base Year, to and including such calendar year, then the exclusivity
with respect to the License shall cease and the License shall become
nonexclusive unless DTN pays to SmartServ the difference within thirty
(30) days after the end of such calendar year. If during any calendar
quarter ending after the first twelve months of the License Term, DTN
does not obtain at least 800 subscribers to the Internet Services
(exclusive of renewing subscribers, but not net of terminating
subscribers) at an average of at least $84.00 per subscriber per month,
which dollar amount shall be reduced 4% each year thereafter but not
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below an average of $65.00 per subscriber per month, then the
exclusivity with respect to the License shall cease and the License
shall become nonexclusive; provided, however, in the event of a sale to
any entity listed in Schedule C to this Agreement or to an affiliate of
such entity of (i) all or substantially all of the assets of DTN or
(ii) sufficient stock of DTN to effect a change in control of DTN, by
whatever manner including, without limitation, any merger,
consolidation, sale of assets, sale of capital stock or similar
transaction, the 800 subscribers requirement shall temporarily be
raised to 1200 subscribers for the eighteen (18) month period
immediately following the occurrence of such event. SmartServ is
negotiating an agreement for the license by SmartServ of its "Order
Entry FIX Protocol" software to the Bank of New York or its affiliate
which is a permitted exception to the exclusivity of the License as
provided above. If the Bank of New York or its affiliate acquires a
perpetual right or license to use the "Order Entry FIX Protocol"
software, DTN shall be entitled to 30% of the revenues derived by
SmartServ therefrom.
2.3 Object Code. The first sentence of Section 2.2 of the License
Agreement is deleted in its entirety and the following is inserted in its place:
"SmartServ shall deliver the Internet Software to DTN in object code
form for loading and operating by DTN on a back up server at a mutually
agreeable location. SmartServ agrees not to unreasonably object to any
location proposed by DTN."
In addition, the following is added to the end of Section 2.2 of the License
Agreement:
"From and after the occurrence of an Escrow Release Event, DTN shall be
entitled to modify the Internet Software and to develop software
derivatives of or interfacing with the Internet Software. All such
modifications of and software derivatives of the Internet Software
developed by DTN shall be and remain the property of DTN, and SmartServ
shall have no rights or interests therein."
2.4 Source Code Escrow. Subsection (e) of Section 2.3 of the License
Agreement is deleted in its entirety and the following is inserted in its place:
"e. The Source Code Escrow Package shall, upon request of DTN,
be released from escrow to DTN for use by DTN in accordance with this
Agreement upon the occurrence of one or more of the following events
(collectively the "Escrow Release Events" and individually an "Escrow
Release Event"):
i. SmartServ is in breach of its obligations under
the Source Code Escrow Agreement with DTN and Escrow Agent;
ii. if SmartServ files a petition for liquidation and
dissolution under Chapter 7 of the Bankruptcy Code of the
United States, or an involuntary petition in bankruptcy is
filed against SmartServ and is not dismissed or converted for
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reorganization under Chapter 11 of the Bankruptcy Code of the
United States within sixty (60) days thereafter, or this
Agreement is rejected in a proceeding under Chapter 11 of the
Bankruptcy Code of the United States;
iii. if SmartServ has a negative net worth for any
two consecutive fiscal quarters ending after May 31, 2000;
iv. if DTN elects to provide its own maintenance of
the Internet Software and the Hardware pursuant to the last
sentence of Paragraph 4.3;
v. in the event of a sale to a DTN competitor listed
in Schedule C to this Agreement or to an affiliate of such
competitor of (i) all or substantially all of the assets of
SmartServ or (ii) sufficient stock of SmartServ to effect a
change in control of SmartServ by whatever manner including,
without limitation, any merger, consolidation, sale of assets,
sale of capital stock or similar transaction; or
vi. if SmartServ proves unable or otherwise fails to
cure a breach of this Agreement within the applicable cure
period set forth in this Agreement."
2.5 License Fee. Section 3.1 of the License Agreement is deleted in its
entirety and the following is inserted in its place:
"3.1 License and Maintenance Fee. Except as otherwise provided
in this Agreement, during the License Term, DTN shall pay to SmartServ
a monthly license and maintenance fee (the "License Fee") equal to the
sum of seventy percent (70%) of the SmartServ Trading Revenue for such
month plus an amount equal to twenty two percent (22%) of the first
$909,091 of Internet Services Revenue for such month plus seventeen
percent (17%) of the Internet Services Revenue above $909,091 for such
month. The License Fees shall be paid to SmartServ within twenty (20)
days after the end of the month to which it relates. Notwithstanding
the foregoing, upon the occurrence of one or more of the Escrow Release
Events, DTN may at its sole cost elect to provide its own maintenance
of the Internet Software and the Hardware, in which case DTN shall have
no further obligation to pay the License Fees and SmartServ shall have
no further obligations under Article 4 of this Agreement. If DTN elects
to provide its own maintenance of the Internet Software pursuant to
this paragraph, SmartServ agrees not to compete with any of the
Internet Services for a period of five (5) years thereafter. The
foregoing will not prevent SmartServ from fulfilling its obligations to
the Bank of New York as permitted under Section 2.1 of this Agreement."
2.6 Warranties and Indemnification. Sections 6.2 and 6.3 of the License
Agreement are deleted in their entirety and the following are inserted in their
place:
"6.2 Internet Software. SmartServ warrants that the
Documentation faithfully and accurately reflects the functionality
provided by the Internet Software. SmartServ warrants that the Internet
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Software (i) is free from known material defects; (ii) materially
performs in accordance with the Documentation and (iii) is or will be
Y2K Compliant by September 30, 1999.
6.3 Services. In the event that the Internet Software does not
perform as warranted in paragraph 6.2 hereof, SmartServ agrees to use
its best efforts to promptly make the Internet Software perform as so
warranted. If SmartServ is unable to make the Internet Software perform
as so warranted upon thirty (30) days' notice, DTN (i) may elect to
provide at its sole cost its own maintenance of the Internet Software
and the Hardware, in which case DTN shall have no further obligation to
pay the License Fees during the remainder of the License Term and
SmartServ shall have no further obligations under Article 4 of this
Agreement or (ii) may elect to terminate this Agreement."
2.7 License Term. Paragraphs 7.1 and 7.2 of the License Agreement are
deleted in their entirety and the following is inserted in their place:
"7.1 Term. The term of this Agreement shall commence upon the
Effective Date and, unless terminated earlier pursuant to Article 7,
shall continue until either party terminates this Agreement by written
notice to the other party given at least ninety (90) days in advance of
such termination, provided such termination may not occur until such
time as there are fewer than 1000 Subscribers at an average of at least
$84.00 per subscriber per month, which dollar amount shall be reduced
4% each year thereafter but not below an average of $65.00 per
subscriber per month. Such term is referred to in this Agreement as the
"License Term".
7.2 Termination for Cause. DTN shall have the right to
terminate this Agreement upon the violation, breach or default of
SmartServ, its officers or employees, of any material provision of this
Agreement, including but not limited to proprietary rights and
confidentiality obligations. In addition, DTN shall have the right to
terminate this Agreement (i) upon the occurrence of any Escrow Release
Event; or (ii) in accordance with Sections 6.3, 6.6 or 7.1 hereof.
SmartServ shall have the right to terminate this Agreement (i) upon DTN
becoming insolvent, commencing or becoming subject to any proceedings
under any bankruptcy or insolvency law or making any assignment for the
benefit of creditors, suffering or permitting the appointment of a
receiver for its business or assets or commencing the winding up or
liquidating its business or affairs, voluntarily or otherwise; (ii)
upon the failure of DTN to pay the License Fees in accordance with this
Agreement for any two (2) month period, subject to the notice and cure
period provided in Section 7.3; or (iii) in accordance with Section
7.1."
2.8 Termination of Service Agreement. Each and every reference to "this
Agreement and/or the License" contained in Section 7.3 of the License Agreement
shall be changed to "this Agreement". In addition, Section 7.4 of the License
Agreement shall be deleted in its entirety and the following inserted in its
place:
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"7.4 Survival of the License. Notwithstanding any provision to
the contrary contained in this Agreement, upon termination of this
Agreement, the License shall continue in perpetuity and the provisions
of Paragraph 2.1 shall survive the termination of this Agreement."
2.9 Schedules. Schedules A and C attached to the License Agreement are
deleted in their entirety and Schedules A and C attached to this Agreement are
inserted in their place.
SECTION 3
OTHER AGREEMENTS
3.1 Termination of The Letter of Intent. The parties agree that,
effective immediately, the Letter of Intent is terminated and is of no further
force or effect.
3.2 Release. SmartServ does hereby fully and absolutely release and
forever discharge DTN and its affiliates, officers, directors, employees and
agents (the "Released Parties") from any and all claims, demands and causes of
action of any kind whatsoever, whether known or unknown at the present time,
which SmartServ may have against any of the Released Parties with respect to or
arising out of the Letter of Intent or the transactions contemplated by the
Letter of Intent. The foregoing release is intended and shall be construed as a
full and complete release of all claims, demands, and causes of action referred
to above. This release shall inure to the benefit of the Released Parties and
their respective heirs, representatives, successors and assigns.
3.3 Escrow Agreement. The parties shall enter into a new Escrow
Agreement pursuant to which SmartServ will place the Source Code for the
Internet Software in escrow to be released to DTN upon the occurrence of one or
more Escrow Release Events. The parties shall complete the new Escrow Agreement
on or before July 23, 1999 with an Escrow Agent mutually agreeable to both
parties and upon terms and conditions substantially the same as the existing
Escrow Agreement, with such changes as may be required by the Escrow Agent or
agreed to by both parties. The costs of the escrow shall be shared by DTN and
SmartServ equally.
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SECTION 4
SmartServ Warrants
4.1 Issuance of Warrant. SmartServ agrees to issue to DTN a warrant
(the "Warrant") to purchase from SmartServ 300,000 duly authorized, validly
issued, fully paid and nonassessable shares of Common Stock, par value $.01 per
share, of SmartServ (the "Common Stock") at the purchase price per share of
$8.60, at any time or from time to time prior to April 30, 2003 or the date one
year after the Current Market Price (as hereinafter defined) of the Common Stock
reaches $8.60 per share, whichever is earlier. SmartServ and DTN shall promptly
negotiate in good faith and execute an agreement evidencing the Warrant, which
shall contain such terms, conditions and adjustments as may reasonably be
requested by the parties, including, but not limited to, antidilution
adjustments to the number and kind of securities to be issued upon exercise of
the Warrant and the exercise price. In addition, the Warrant shall contain
registration rights substantially similar to those attached to this Agreement as
Exhibit A. For purposes of this paragraph, "Current Market Price" shall mean, as
of any date, the average daily Market Price (as hereinafter defined) during the
period of the most recent 20 consecutive business days ending on such date. For
purposes of this paragraph, "Market Price" shall mean, as of any date, the
amount per share equal to (x) the last sale price of shares of the Common Stock
on such date or, if no such sale takes place on such date, the average of the
closing bid and asked prices thereof on such date, in each case as officially
reported on the principal national securities exchange on which the Common Stock
is then listed or admitted to trading, or (y) if no shares of Common Stock are
then listed or admitted to trading on any national securities exchange but the
Common Stock is designated as a national market system security by the NASD, the
last trading price of the Common Stock on such date, or if the Common Stock is
not so designated, the average of the reported closing bid and asked prices
thereof on such date as shown by the NASDAQ system or, if no shares thereof are
then quoted in such system, as published by the National Quotation Bureau,
Incorporated or any successor organization, and in either case as reported by
any member firm of the New York Stock Exchange selected by SmartServ.
SECTION 5
ADDITIONAL OBLIGATIONS
5.1 Right of First Refusal. SmartServ hereby agrees that, during the
License Term (as defined in the License Agreement), DTN shall have a right of
first refusal to supply content to SmartServ's products and services which is
not provided directly by SmartServ or its subsidiaries or affiliates. If, during
the License Term, SmartServ desires to acquire from third parties content for
its products or services which generally is of a type provided by DTN or its
subsidiaries and affiliates, then SmartServ agrees to purchase such content from
DTN upon the same terms and conditions that SmartServ would purchase such
content from a bona fide and unrelated content provider or vendor; provided,
however, such right of first refusal is subject to SmartServ's reasonable
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determination that DTN can provide such content in a manner and of a quality
equal to that of other third party content providers or vendors and on a timely
basis.
5.2 Pending Developments. SmartServ agrees to continue with due
diligence the development of the CotNet trading software application which has
been discussed with DTN. The compensation arrangements with respect to such
CotNet trading software application and any other DTN originated trading
applications will be agreed upon by the parties on a case by case basis.
5.3 Administrative Software. SmartServ agrees that the Administrative
Software used to administratively control user accounts is to be included in the
Internet Software; provided, however, that the License as it relates solely to
such Administrative Software is provided on a non-exclusive basis to DTN for its
internal use only.
5.4 Additional Products and Services. The parties agree that SmartServ
is engaged in the business of providing software products and services on the
Internet referred to as "DTN IQ", "Order Entry Review & Release", "Order Entry
FIX Protocol" and "BrokerNet" which are covered by this Agreement. SmartServ's
other business operations (hereinafter the "Excluded Business Operations")
including but not limited to (i) its telephone screen services, (ii) any other
internet products and services not identified above, or (iii) its wireless or
PCS services are not covered by the License granted herein. From time to time,
parts of SmartServ's Excluded Business Operations may be available for licensing
to DTN's customers. Should any of DTN's customers execute a license to utilize
any portion of SmartServ's Excluded Business Operations through DTN, DTN shall
be entitled to 30% of the revenues derived therefrom.
5.5 Membership on Board of Directors. During the License Term (as
defined in the License Agreement), SmartServ agrees to nominate a person
designated from time to time by DTN and acceptable to the SmartServ Board of
Directors as a member of the Board of Directors of SmartServ at the appropriate
annual meeting of the shareholders of SmartServ held for the purpose of electing
directors of SmartServ.
SECTION 6
MISCELLANEOUS
6.1 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the internal laws of the State of Nebraska, without regard to
principles of conflicts of laws.
6.2 Entire Agreement. This Agreement, including the Schedules hereto,
and the License Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and supersedes all previous proposals,
both oral and written, negotiations, representations, commitments, writings and
all other communications between the parties. This Agreement may not be
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released, discharged, modified or amended except by an instrument in writing
signed by a duly authorized representative of each of the parties.
6.3 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
6.4 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
6.5 Superseding. From and after the date hereof, all references to the
License Agreement (including, but not limited to, such references in the Escrow
Agreement and the Asset Purchase Agreement dated April 23, 1998, between
SmartServ and DTN) shall mean the License Agreement as amended by this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to become
effective as of the day and year first above written.
DATA TRANSMISSION NETWORK SMARTSERV ONLINE, INC.,
CORPORATION, a Delaware a Delaware corporation
corporation
By:__________________________ By:____________________________
Title:_________________________ Title:___________________________
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SCHEDULE A
[Insert description of Internet Software]
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities and Exchange Commission upon request."
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SCHEDULE C
List of Prohibited Transferees
Bloomberg L.P.
Bridge Information Systems, Inc.
CBS XxxxxxXxxxx.xxx, Inc.
CQG, Inc.
Data Broadcast Corporation
Futuresource/Bridge, L.L.C.
Hoovers, Inc.
Media General Financial Services Inc.
North American Quotations, Inc.
NY Quotes
Omega Research, Inc.
PC Quote, Inc.
Primark Corporation
Xxxxx.xxx, Inc.
Reuters Group Plc.
Standard and Poor's Xxxxxxxx, Inc. (S&P Xxxxxxxx)
Star Data Systems, Inc.
Telekurs Financial Information, Ltd.
Telemet America, Inc.
Telescan, Inc.
The Xxxxxxxx Corporation
Track Data Corporation
Window on WallStreet, Inc.
Zannett Securities Corporation
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EXHIBIT A
REGISTRATION RIGHTS
[Definitions are in Section 2.]
Section 1. Registration under Securities Act, Etc.
1.1 Registration on Request.
(a) Request. At any time and from time to time after September 30,
1999, upon the written request of DTN, requesting that the Company effect the
registration under the Securities Act of all or part of DTN's Registrable
Securities and specifying the intended method of disposition thereof, the
Company will use its best efforts to effect its registration under the
Securities Act, including by means of a shelf registration pursuant to Rule 415
under the Securities Act if so requested in such request (but in the case of a
shelf registration only if the Company is then eligible to use Form S-2-or S-3
(or any successor forms)), of the Registrable Securities which the Company has
been so requested to register by DTN for disposition in accordance with the
intended method of disposition stated in such request, all to the extent
requisite to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities so to be registered;
provided that the Company shall not be required to effect the registration
pursuant to this Section 1.1 of any Warrants (but shall be required to effect
the registration of Registrable Securities described in clauses (b) and (c) of
the definition of Registrable Securities), and provided, further, that DTN, by
written notice to the Company within 10 Business Days after its receipt of a
copy of a notice from the managing underwriter delivered pursuant to Section
1.1(g), may withdraw such request and, on receipt of such notice of the
withdrawal of such request from DTN, the Company may elect not to effect such
registration. Subject to subdivision (g), the Company may include in such
registration other securities for sale for its own account or for the account of
any other Person.
(b) Number of Registrations. The Company shall not be required to
effect more than one registration pursuant to this Section 1.1, provided that
such registration shall permit the disposition of at least 80% of the
Registrable Securities issuable to DTN upon exercise of all of the Warrants,
provided, further, that if one or more such registrations, in the aggregate,
shall not permit the disposition of at least 80% of such Registrable Securities,
the Company shall be required to effect one additional registration pursuant to
this Section 1.1 so that the aggregate number of such Registrable Securities,
shall be at least 80%.
(c) Registration Statement Form. The Company may, if permitted by law,
effect any registration requested under this Section 1.1 by the filing of a
registration statement on Form S-3 (or any successor or similar short form
registration statement) unless, if such registration involves an underwritten
Public Offering of such Registrable Securities, the managing underwriter of such
Public Offering shall notify the Company in writing that, in the judgment of
such managing underwriter, the use of a more detailed form specified in such
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notice is of material importance to the success of the Public Offering of such
Registrable Securities, in which case such registration shall be effected on the
form so specified.
(d) Expenses. The Company will pay all Registration Expenses in
connection with any registration and sale effected pursuant to this Section 1.1.
(e) Selection of Underwriters. If, in the discretion of DTN, any
offering pursuant to this Section 1.1 shall constitute an underwritten offering,
the underwriter or underwriters thereof shall be selected, after consultation
with the Company, by DTN and shall be acceptable to the Company.
(f) Effective Registration Statement. A registration requested pursuant
to this Section 1.1 will not be deemed to have been effected (x) unless it has
become effective, provided that a registration which does not become effective
after the Company has filed a registration statement with respect thereto solely
by reason of the refusal to proceed of DTN shall be deemed to have been effected
by the Company at the request of DTN, unless DTN shall have elected to pay all
Registration Expenses in connection with such registration, (y) if, after it has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court entered within one year of the effectiveness of such
registration if it is a shelf registration pursuant to Rule 415 under the
Securities Act or entered within 90 days of the effectiveness of such
registration if other than a shelf registration, or (z) if the conditions to
closing specified in the underwriting agreement entered into in connection with
such registration are not satisfied other than by reason of some act or omission
by such Initiating Holders.
(g) Priority in Requested Registrations. If a requested registration
pursuant to this Section 1.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to DTN) that, in
its opinion, the total number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the Company
will include in any such registration to the extent of the number which the
Company is so advised can be sold in such offering (x) first, Registrable
Securities requested to be included in such registration by DTN, (y) second, any
securities proposed by the Company to be sold for its own account, and (z)
third, other securities of the Company proposed to be included in such
registration, in accordance with the priorities, if any, then existing among the
Company and the holders of such other securities.
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(h) Company Request for Delay. Except with respect to a registration
statement covering a shelf registration, the Company shall be entitled to
postpone for a reasonable period of time (but not exceeding 180 days) the filing
of any registration statement otherwise required to be prepared and filed by it
pursuant to this Section 1.1 if the Board of Directors of the Company
determines, in its reasonable judgment, that such registration and offering
would interfere with any financing, acquisition, corporate reorganization or
other material transaction involving the Company or any of its affiliates and
promptly gives DTN written notice of such determination, containing a general
statement of the reasons for such postponement and approximation of the
anticipated delay. If the Company shall so postpone the filing of a registration
statement, DTN shall have the right to withdraw the request for registration by
giving written notice to the Company within 30 days after receipt of the notice
of postponement and, in the event of such withdrawal, such request shall not be
counted for purposes of the requests for registration to which holders of
Registrable Securities are entitled pursuant to Section 1.1.
(i) Shelf Registration Statement. The Company shall be deemed to have
complied with a request for registration made by DTN pursuant to this Section
1.1 if, at the time of such request, there shall be an effective shelf
registration statement on file with the Commission pursuant to Rule 415 under
the Securities Act covering the Registrable Securities which such holders shall
have requested to be registered, if such registration statement complies with
the provisions of this Section 1.1 and of Section 1.3 and if the Company
otherwise fulfills the requirements of Section 1.1 and 1.3 in respect of such
registration.
1.2 Incidental Registration.
(a) Right to Include Registrable Securities. Notwithstanding any
limitation contained in Section 1.1, if the Company at any time on or prior to
April 30, 2005 proposes to register any of its securities under the Securities
Act (other than by a registration on Form S-4 or S-8 or any successor or similar
forms), whether or not for sale for its own account, in a manner which would
permit registration of Registrable Securities for sale to the public under the
Securities Act, it will each such time give prompt written notice to DTN of its
intention to do so and of DTN's rights under this Section 1.2. Upon the written
request of DTN made within 20 days after receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
DTN and the intended method of disposition thereof), the Company will use its
best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
DTN, to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register,
provided that (x) the Company shall not be required to effect the registration
pursuant to this Section 1.2 of any Warrants (but shall be required to effect
the registration of Registrable Securities described in clauses (b) and (c) of
the definition of Registrable Securities) and (y) if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
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registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to DTN and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith),
without prejudice, however, to the rights of DTN to request that such
registration be effected as a registration under Section 1.1, and (ix) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other securities. No registration effected under this Section
1.2 shall relieve the Company of its obligation to effect any registration
statement upon request under Section 1.1. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 1.2.
(b) Priority in Incidental Registrations. If a registration pursuant to
this Section 1.2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company will include in such registration to the
extent of the number which the Company is so advised can be sold in such
offering securities determined as follows:
(x) if such registration as initially proposed by the Company
was solely a primary registration of its securities, (i) first, the
securities proposed by the Company to be sold for its own account, (ii)
second, any Registrable Securities requested to be included in such
registration, and (iii) third, any other securities of the Company
proposed to be included in such registration, in accordance with the
priorities, if any, then existing among the Company and the holders of
such other securities, and
(y) if such registration as initially proposed by the Company
was in whole or in part requested by holders of securities of the
Company, other than DTN, pursuant to demand registration rights, (i)
first, securities proposed by the Company to be sold for its own
account, (ii) second, such securities held by the holders initiating
such registration, in accordance with the priorities, if any, then
existing among the Company and the holders of such securities, (iii)
third, any Registrable Securities requested to be included in such
registration, and (iv) fourth, any other securities of the Company
proposed to be included in such registration, in accordance with the
priorities, if any, then existing among the Company and the holders of
such other securities.
1.3. Registration Procedures. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 1.1 and 1.2, the Company will
as expeditiously as possible:
(a) prepare and file with the Commission the requisite
registration statement (including such audited financial statements as
may be required by the Securities Act or the rules and regulations
promulgated thereunder) to effect such registration and use its best
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efforts to cause such registration statement to become effective,
provided that before filing such registration statement or any
amendments thereto, the Company will furnish to the counsel selected by
DTN copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to maintain the effectiveness
of such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement until the earlier of such time
as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement and the expiration of 90 days
after such registration statement becomes effective, except with
respect to any such registration statement filed pursuant to Rule 415
(or any successor Rule) under the Securities Act, in which case such
period shall be one year;
(c) furnish to DTN such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
as DTN may reasonably request;
(d) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of
such jurisdictions as DTN shall reasonably request, to keep such
registration or qualification in effect for so long as such
registration statement remains in effect, and take any other action
which may be reasonably necessary or advisable to enable DTN to
consummate the disposition in such jurisdictions of the securities
owned by DTN, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subdivision (d) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(e) if such registration includes an underwritten Public
Offering, furnish to DTN a signed counterpart, addressed to DTN (and
the underwriters), of
(x) an opinion of counsel for the Company, dated the
date of any closing under the underwriting agreement,
reasonably satisfactory in form and substance to DTN, and
(y) a "comfort" letter, dated the effective date of
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such registration statement and the date of any closing under
the underwriting agreement, signed by the independent public
accountants who have certified the Company's financial
statements included in such registration statement, covering
substantially the same matters with respect to such
registration statement (and the prospectus included therein)
and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in
underwritten Public Offerings of securities and, in the case
of the accountants' letter, such other financial matters, as
the underwriters may reasonably request;
(f) immediately notify DTN (w) when the prospectus or any
prospectus supplement or post-effective amendment has been filed, and,
with respect to the registration statement or any post-effective
amendment, when the same has become effective, (x) of any request by
the Commission for amendments or supplements to the registration
statement or the prospectus or for additional information, (y) of the
issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or the initiation of any
proceedings for that purpose and (z) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(g) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration statement
at the earliest possible time;
(h) immediately notify DTN, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and at the request of DTN promptly prepare and furnish
to DTN a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act, and not file any amendment or supplement to such
registration statement or prospectus to which DTN shall have reasonably
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objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the Securities
Act or of the rules or regulations thereunder, having been furnished
with a copy thereof at least three business days prior to the filing
thereof;
(j) if and when the Common Stock is so listed, designated or
authorized as indicated below, use its best efforts (x) to cause all
such Registrable Securities covered by such registration statement to
be listed on a national securities exchange (if such Registrable
Securities are not already so listed) and on each additional national
securities exchange on which similar securities issued by the Company
are then listed, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (y) to secure
designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security"
within the meaning of Rule llAa2-1 of the Commission or, failing that,
secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at
least two market makers to register as such with respect to such
Registrable Securities with the NASD.
The Company may require DTN to furnish the Company such information regarding
DTN and the distribution of such securities as the Company may from time to time
reasonably request in writing.
1.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering by holders of Registrable Securities pursuant to
the registration requested under Section 1.1, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be satisfactory in substance and form to DTN and the underwriters and to
contain such representations and warranties by the Company and such other terms
as are customarily contained in agreements of this type, including, without
limitation, indemnities to the effect and to the extent provided in Section 1.6.
DTN shall be a party to such underwriting agreement. DTN shall be required to
make such representations and warranties to and agreements with the Company or
the underwriters as are customarily contained in such agreements.
(b) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 1.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, subject to the provisions of
Section 1.2(b), if requested by DTN, request such underwriters to include the
Registrable Securities to be offered and sold by DTN among the securities to be
distributed by such underwriters. DTN shall be a party to the underwriting
agreement between the Company and such underwriters. DTN shall be required to
make such representations and warranties and agreements with the Company or the
underwriters as are customarily contained in such agreements.
(c) Holdback Agreements. (x) DTN agrees, if so required by the managing
underwriter, not to effect any public sale or distribution of securities of the
Company of the same class as the securities included in such Registration
Statement, during the seven days prior to the date on which any underwritten
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registration pursuant to Section 1.1 or 1.2 has become effective and the 90 days
thereafter, or such longer period as may be required by the managing
underwriter.
(y) The Company agrees (i) not to effect any public sale or
distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the seven
days prior to the date on which any underwritten registration pursuant
to Section 1.1 or 1.2 has become effective and the 90 days thereafter
(or such longer period as may be required by the underwriter), except
as part of such underwritten registration and except pursuant to
registrations on Form S-4 or S-8 or any successor or similar forms
thereto.
1.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act,
the Company will give DTN, the underwriter, if any, and counsel for the
underwriter, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of DTN and such underwriter, to conduct a reasonable
investigation within the meaning of the Securities Act.
1.6 Indemnification. (a) The Company will, and hereby does, indemnify,
to the extent permitted by applicable law, DTN, its officers and directors, and
each Person, if any, who controls DTN within the meaning of Section 15 of the
Securities Act, against all losses, claims, damages, liabilities (or proceedings
in respect thereof) and expenses (under the Securities Act or common law or
otherwise), joint or several, caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (and as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities (or proceedings in
respect thereof) or expenses are caused by any untrue statement or alleged
untrue statement contained in or by any omission or alleged omission from
information furnished in writing to the Company by DTN expressly for use
therein. If the offering pursuant to any registration statement provided for
under this Agreement is made through underwriters, no action or failure to act
on the part of such underwriters shall affect the obligations of the Company to
indemnify DTN or any other Person pursuant to the preceding sentence. If the
offering pursuant to any registration statement provided for under this
Agreement is made through underwriters, the Company agrees to enter into an
underwriting agreement in customary form with such underwriters and the Company
agrees to indemnify such underwriters, their officers and directors, if any, and
each Person, if any, who controls such underwriters within the meaning of
Section 15 of the Securities Act to the same extent as hereinbefore provided
with respect to the indemnification of DTN; provided that the Company shall not
be required to indemnify DTN or any such underwriter, or any officer or director
of DTN or such underwriter or any Person who controls DTN or such underwriter
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within the meaning of Section 15 of the Securities Act, to the extent that the
loss, claim, damage, liability (or proceedings in respect thereof) or expense
for which indemnification is claimed results from DTN's or such underwriter's
failure to send or give a copy of the amended or supplemented final prospectus
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement or omission was
corrected in such amended or supplemented final prospectus prior to such written
confirmation and DTN or the underwriter, as the case may be, was given notice of
the availability of such amended or supplemented final prospectus.
(b) DTN will indemnify, to the extent permitted by applicable law, the
Company, its officers and directors and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages, liabilities (or proceedings in respect thereof) and
expenses resulting from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated in the registration statement or prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement is contained in or such omission is from information so furnished in
writing by such holder expressly for use therein, provided that such holder's
obligations hereunder shall be limited to an amount equal to the proceeds to
such holder of the Registrable Securities sold pursuant to such registration
statement.
(c) Any Person entitled to indemnification under the provisions of this
Section 1.6 shall (x) give prompt notice to the indemnifying party of any claim
with respect to which it seeks indemnification (but the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 1.6, except to the extent that the indemnifying party is actually
prejudiced by such failure) and (y) unless a conflict of interest between such
indemnified and indemnifying parties exists in respect of such claim, permit
such indemnifying party to assume the defense of such claim, with counsel
reasonably satisfactory to the indemnified party; and if such defense is so
assumed, such indemnifying party shall not enter into any settlement without the
consent of the indemnified party if such settlement attributes liability to the
indemnified party and such indemnifying party shall not be subject to any
liability for any settlement made without its consent (which shall not be
unreasonably withheld); and any underwriting agreement entered into with respect
to any registration statement provided for under this Agreement shall so
provide. In the event an indemnifying party shall not be entitled, or elects
not, to assume the defense of a claim, such indemnifying party shall not be
obligated to pay the fees and expenses of more than one counsel or firm of
counsel for all parties indemnified by such indemnifying party in respect of
such claim, unless a conflict of interest exists between such indemnified party
and any other of such indemnified parties in respect to such claim. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of an indemnified party, its officers, directors or any
Person, if any, who controls such party as aforesaid, and shall survive the
transfer of such securities by such holder.
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(d) If the indemnification provided for in this Section 1.6 shall for
any reason be held by a court to be unavailable to an indemnified party under
Section 1.6(a) or (b) hereof in respect of any loss, claim, damage or liability,
or any action in respect thereof, then, in lieu of the amount paid or payable
under Section 1.6(a) or (b), the indemnified party and the indemnifying party
under Section 1.6(a) or (b) shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating the same), (x) in such proportion as is
appropriate to reflect the relative fault of the Company, DTN and the
underwriters, if any, which resulted in such loss, claim, damage or liability,
or action or proceeding in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action or
proceeding in respect thereof, as well as any other relevant equitable
considerations or (y) if the allocation provided by clause (x) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, DTN and the underwriters,
if any, from the offering of the securities covered by such registration
statement, provided, that for purposes of clauses (x) or (y), the relative
benefits received by DTN shall be deemed not to exceed the amount of proceeds
received by DTN and DTN shall not be required to contribute any amount in excess
of the amount it could have been required to pay to an indemnified party if the
indemnity under subsection (a) of this Section 1.6 was available. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim effected without such Person's consent, which consent shall
not be unreasonably withheld.
1.7 Registration Rights to Others. If the Company shall at any time
after the date of this Warrant provide to any holder of any securities of the
Company rights with respect to the registration of such securities under the
Securities Act, such rights shall not be in conflict with any of the rights
provided in this Section 1 to the holders of Registrable Securities; provided,
however, the foregoing shall not preclude the Company from granting registration
rights which are more favorable than those contained in this Warrant so long as
such rights do not preclude the Company from complying with the terms of this
Warrant.
1.8 Rule 144. If and when the Common Stock is either listed, designated
or authorized as provided in Section 1.3(j), the Company shall take all actions
reasonably necessary to enable DTN to sell such shares of Common Stock issuable
upon exercise of this Warrant without registration under the Securities Act
within the limitation of the provisions of Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rules or regulations
hereafter adopted by the Commission, including, without limitation, filing on a
timely basis all reports required to be filed pursuant to the Exchange Act.
Notwithstanding the provisions of Sections 1.1 and 1.2, the Company has no
obligation to effect the registration of any Registrable Securities as provided
in such sections if DTN can then sell under Rule 144 all the Registrable
Securities which otherwise would be registered in accordance with such sections,
as applicable; provided such exception does not preclude DTN from exercising its
registration rights on a future occasion.
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Section 2. Definitions.
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
Commission: the Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act or the Exchange Act,
whichever is the relevant statute for the particular purpose.
Common Stock: the Company's common stock, par value $.01 per share, as
constituted on the date hereof, any stock into which such common stock shall
have been changed or any stock resulting from any reclassification of such
common stock, and all other stock of any class or classes (however designated)
of the Company the holders of which have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on any
shares entitled to preference.
Company: SmartServ Online, Inc., a Delaware corporation.
DTN: Data Transmission Network Corporation or any successor to its
business.
NASD: the National Association of Securities Dealers.
NASDAO: the Automated Quotation System of the NASD.
Other Securities: any stock (other than Common Stock) and other
securities of the Company or any other Person (corporate or otherwise) which DTN
at any time shall be entitled to receive, or shall have received, upon the
exercise of the Warrants, in lieu of or in addition to Common Stock, or which at
any time shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to this Warrant or
otherwise.
Person: an individual, a partnership, an association, a joint venture,
a corporation, a business, a trust, an unincorporated organization or a
government or any department, agency or subdivision thereof.
Public Offering: any offering of Common Stock to the public pursuant to
an effective registration statement under the Securities Act.
Registrable Securities: (a) the Warrants, (b) any shares of Common
Stock or other Securities issued or issuable upon exercise of the Warrants and
(c) any securities issued or issuable with respect to any common Stock or Other
Securities referred to in subdivision (b) by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any particular
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Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (x) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (y) they shall have been sold as permitted under Rule 144 (or any
successor provision) under the Securities Act, or (z) they shall have ceased to
be outstanding.
Registration Expenses: all expenses incident to the Company's
performance of or compliance with Section 1, including, without limitation, all
registration, filing and NASD fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by the
underwriters with respect to such registration, premiums and other costs of
policies of insurance against liabilities arising out of the public offering of
the Registrable Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any, and the fees
and disbursements of DTN's counsel and accountants.
Securities Act: the Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time of determination.
Warrants: the meaning specified in the opening paragraphs of this
Warrant.
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