THIS ASSET PURCHASE AGREEMENT ("Agreement") is made 5th day of
February, 1998 between Data Transmission Network Corporation, a Delaware
corporation ("DTN"), located at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx
00000, and Market Information of Colorado, Inc. ("MIC"), a Colorado corporation
located at 00000 X. 00xx Xxx., Xxxxx 000, Xxxxxx, XX 00000.
RECITALS
A. DTN is the owner and operator of an electronic information system
using satellite data terminals (the "System") which continuously transmits
information to DTN's subscribers ("DTN Subscribers"). DTN provides various
information services (the "Services"), including a real time commodity service
(DTNstant), to DTN Subscribers over the System.
B. MIC is engaged in the business of sales, installation, and service
of systems which provide stock, commodities, and financial data using Trade
Station, Ensign and Market Center software to subscribers. Those subscribers
using Ensign and Market Center software ("MIC Subscribers") shall be included in
this Agreement.
C. MIC owns certain equipment such as data receivers, Ku satellite
receivers, LNBs cable, and satellite dishes. Some of this equipment may be used
by DTN in providing information to DTN Subscribers on the System. Other
equipment may be provided by DTN to replace MIC equipment for MIC Subscribers'
conversion to the Services.
D. MIC desires for DTN to make the Services available to the MIC
Subscribers and MIC is willing to promote DTN's Services as provided in this
Agreement. DTN desires to provide its Services to the MIC Subscribers who
contract to receive such Services.
E. DTN, at its option, desires to purchase certain of MIC's equipment
used by it in transmitting information to MIC Subscribers, and DTN is willing to
purchase such equipment pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the aforementioned recitals and the
covenants and conditions herein contained, the parties hereto agree as follows:
1. Sale and Purchase. DTN agrees to purchase from MIC, and MIC agrees
to sell to DTN the equipment and accessories now owned by MIC and currently
being used by the MIC Subscribers to receive MIC's information service. MIC
represents that there are approximately 100 Terminals installed with
approximately 70 MIC Subscribers. Such equipment and accessories may include a
data receiver, Ku satellite receiver, LNB, cable, and satellite dish. A
"Terminal" is defined as an independent location with hardware and software for
individual viewing of data displayed by either the Ensign/Vista or Market
Center, but not Trade Station, software. For purposes of this Agreement, the
term "Converted Subscribers" shall mean those MIC Subscribers who convert to and
become DTN Subscribes during the Transition Period upon the terms set forth in
this Agreement, including the minimum requirement of a 1-year subscription term.
The Units used by Converted Subscribers which are to be sold to DTN are
collectively referred to in this Agreement as the "Converted Subscriber Units".
For purposes of this Agreement, the term "Transition Period" shall mean prior to
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July 1, 1998, although the final day for MIC Subscribers to receive data from
the current MIC source is March 31, 1998. Units shall not include any equipment
of MIC Terminals not converted. For purposes of this Agreement, all Converted
Subscriber Terminals and Units shall be referred to in the aggregate as the
"Purchased Equipment".
2. Payments. In consideration for the Purchased Equipment and for the
services to be performed by MIC pursuant to this Agreement, DTN agrees to pay
MIC, and MIC agrees to accept from DTN as payment in full, $1330 per Terminal
for real time Subscribers as (1) listed in Exhibit A; and (2) Terminals from
Subscribers with Trade Station software but agreeing to convert during the
Transition Period and $865 per Terminal for delayed Subscribers. DTN shall have
no obligation to pay MIC for Subscribers who convert to and become DTN
Subscribers who are not listed in Exhibit A or are listed in Exhibit A and are
leasing their computer from MIC but do not wish to convert because they do not
want to purchase their own computer. MIC shall be responsible for any sales or
related taxes which may occur as a result of the payments made to MIC under this
Agreement. DTN shall remit payment to MIC consisting of 2/3 of total as of the
Date of the Agreement, 1/6 of total on April 16, 1998 and the remainder on June
30, 1998. MIC may add terminals to Exhibit A in their ordinary course of
business until March 31, 1998.
3. Conversion. For purposes of this Agreement the Conversion Period
will be the period of time from the date of this Agreement until April 15, 1998.
MIC and DTN shall share the responsibility for obtaining the DTN subscription
agreement signed by the MIC Subscriber for the Terminal(s) that will operate the
DTN Service. An MIC Subscriber will not be considered as a Converted Terminal
until the subscription agreement is accepted by DTN in Omaha, Nebraska.
Conversion Agents, who will be responsible for converting the MIC Subscribers,
will install a DTN ACE Databox configured to receive the DTN Service and
determine whether any existing equipment can be utilized. MIC will be
responsible for the cost of retrieving any equipment that is not utilized. MIC
and DTN will share the expenses incurred by two of the Conversion Agents,
Xxxxxxx Xxxxx and Xxxx Xxxxxxxx, during this Conversion period. DTN shall be
responsible for providing other Conversion Agents required to complete the
conversion of the MIC Subscribers which will include entering into a separate
agreement with Spectrum Communications, as independent contractor, to retain
their services during this Conversion period.
4. Transition. DTN shall be responsible for installing the DTN
equipment for the Converted Subscriber Terminals and providing the necessary
assistance and support to assure MIC Subscribers a smooth conversion to the
System. DTN will be responsible for training these new DTN Subscribers on how to
use the DTN equipment. Under a separate agreement, DTN shall retain Spectrum
Communications as an independent contractor through December 31, 1998 to provide
continuous support services for the Converted Subscribers. DTN will begin
billing for its service on the first of the month following installation of the
services.
5. Term. The term of this Agreement shall be until June 30, 1998.
6. Promotion. During the term of this Agreement, MIC agrees to
encourage MIC Subscribers to use DTN's services, to promote to MIC Subscribers
the DTN services provided on the System, and to be available for occasional
phone-call assistance to DTN and Spectrum Communications during the Transition
Period. MIC agrees to cooperate with DTN to market DTN's services to MIC
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Subscribers; provided, however, MIC shall not be required to incur out-of-pocket
costs for such marketing, except as specifically below:
During the Conversion Period, MIC shall solicit (via telephone call,
written correspondence, or face to face meeting) each MIC Subscriber to
enter into DTN's standard form of subscription agreement for the DTN
Service on the System for at least a 12 month subscription term. MIC
agrees at its expense to send during the Conversion Period to each MIC
Subscriber a letter recommending DTN's Services to such MIC Subscriber,
which letter is to be accompanied by promotional materials furnished by
DTN. Such letter shall be in a form satisfactory to both DTN and MIC.
7. Xxxx of Sale. Concurrently with payment by DTN to MIC as specified
in paragraph 2 above, MIC agrees to sell, transfer, assign and convey to DTN the
Purchased Equipment by duly executed warranty xxxx of sale and assignment, free
and clear of all liens, encumbrances, security interests, leasehold interest,
actions, claims, and equities of any kind whatsoever. MIC agrees to take such
actions from time to time as may in the reasonable judgment of DTN to be
necessary or advisable to confirm the title of DTN to any of the items of
personal property acquired by DTN from MIC pursuant to this Agreement. DTN shall
be entitled to possession of the Purchased Equipment upon the payment to MIC for
such equipment.
8. Bulk Sales Transfer. If applicable, DTN waives compliance by MIC
with the Bulk Sales provisions of the Uniform Commercial Code or any equivalent
statute, and MIC agrees to indemnify DTN and to hold DTN harmless from any loss
or expense arising by reason of such non-compliance.
9. Representations of MIC. MIC warrants, represents and convenants to
and with DTN that MIC is the sole and lawful owner and has good and merchantable
title to all of the Purchased Equipment to be acquired by DTN pursuant to this
Agreement and that, upon the transfer and assignment of such property to DTN by
warranty xxxx of sale and assignment as hereinbefore mentioned, DTN will acquire
good and merchantable title thereto, free and clear of interests, leasehold
interests, and claims of any kind whatsoever. MIC further warrants, represents
and convenants to and with DTN that the Purchased Equipment, when it is received
by DTN, will be in the same condition as it was when located at the MIC
Subscriber sites and, otherwise, DTN accepts the Purchased Equipment in its
present condition. The representations, warranties, and convenants contained in
this Agreement shall survive the date of this Agreement and shall be binding
upon the parties hereto and their successors and assigns until four (4) days
following receipt by DTN of the equipment.
10. Indemnification. Each party hereto agrees to indemnify and hold
harmless the other part, its officers, directors, employees, and agents from and
against any and all claims, demands, liability, loss, cost, damage, penalty or
expense, including attorney's fees and costs of settlement, resulting from or
arising out of the failure of the indemnifying party to observe any covenant or
condition set forth in this Agreement, and the inaccuracy of any representations
made by the indemnifying party in this Agreement.
11. Covenant Not to Compete. After the Conversion Period, MIC and its
owners shall not, directly or indirectly, whether as an agent, consultant,
independent contractor, owner, partner or otherwise:
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a) Solicit for itself or others, or advise or recommend to any
other person that such person solicit, any customer or
prospective customer of DTN or any current or future subscriber
of MIC, for the purpose of obtaining the business of such
customer or subscriber, in competition with DTN; or
b) Offer, transmit, facilitate or promote the distribution or
transmission to MIC subscribers of information services in
competition with DTN.
The phrase "in conjunction with DTN" shall mean any business that distributes or
transmits via any electronic information system the same or similar type of
information as is currently offered by MIC.
The convenants contained in this paragraph are independent of one
another and are severable. In the event any part of the covenants set forth in
this Section shall be held to be invalid or unenforceable, the remaining parts
thereof will continue to be valid and enforceable. MIC acknowledges that the
restrictions contained in this paragraph are reasonable and necessary to protect
the goodwill of that portion of the business of MIC being acquired by DTN
hereunder.
12. Severability. In the event that one or more of the provisions
contained in this Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of the other provisions contained in this Agreement, which
provisions shall remain in full force and effect.
13. Relationship of Parties. Nothing contained in this Agreement shall
be deemed or construed to create the relationship of principal and agent or of
partnership, joint venture, or any association whatsoever between the parties,
it being expressly understood and agreed that each party shall be an independent
contractor with respect to the other party in connection with the work performed
hereunder. Except as otherwise provided in this Agreement, each party shall bear
its own expenses with respect to the subject matter of this Agreement.
14. Notices. Any and all written notices, communications or payments
shall be made to the respective parties as follows or at such other address as
the party may indicate in a written notice to the other party of this Agreement:
DTN 0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Market Information POB 4400, 00 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
15. Choice of Law. This Agreement shall be subject to and interpreted
in accordance with the laws of the State of Nebraska.
16. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto in separate counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
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17. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, legal
representatives, and assigns; provided, however, that the rights, duties, and
privileges of MIC hereunder may not be assigned or otherwise transferred by it,
in whole or in part, without the prior written consent of DTN which may be
withheld for any reason.
18. Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter of this
Agreement and shall supersede all prior offers, negotiations, and agreements
with respect to such subject matter. Any provision of any party's invoices,
statements, orders, acknowledgments, or other forms which is inconsistent with
or in addition to the provisions of this Agreement shall be of no force or
effect unless specifically consented to in writing by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
DATA TRANSMISSION NETWORK CORPORATION.
a Delaware corporation
By:/s/ Xxx Xxxxx
---------------------------------
Xxx Xxxxx, Vice President
MARKET INFORMATION OF COLORADO, INC.,
a Colorado corporation
By:/s/ Xxx Xxxxxx
---------------------------------
Xxx Xxxxxx, Vice President
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XXXX OF SALE
KNOW ALL PERSONS BY THESE PRESENTS, that Market Information of
Colorado, Inc. (Seller), a Colorado corporation, in consideration of One Hundred
and Thirty-Three Thousand Two Hundred and Five Dollars ($133,205.00), to MIC, in
hand paid and with further promise to pay by Data Transmission Network
Corporation (Buyer), a Delaware corporation, the receipt whereof is hereby
acknowledged, has bargained and sold, and by these presents does grant, assign
and transfer to Buyer all equipment as listed on the Exhibit A hereto attached.
TO HAVE AND TO HOLD the same unto the said Buyer forever, the said
Seller covenants and agrees to and with the Buyer, to WARRANT AND DEFEND the
sale of said property, goods and chattels, against all and every person or
persons whomever.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be executed
by its Vice President thereunto duly authorized on this 5th day of February,
1998, at Minneapolis, Minnesota.
Market Information of Colorado, Inc.
By:/s/ Xxx Xxxxxx
-------------------------------
Xxx Xxxxxx, Vice President
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