PURCHASE AND RESTRICTIVE COVENANT AGREEMENT
This Purchase and Restrictive Covenant Agreement (this "Agreement") is
entered into as of March 12, 1997, by and between Data Transmission Network
Corporation, a Delaware corporation ("DTN"), and Market Communications Group,
L.L.C., a Delaware limited liability company ("MCG").
RECITALS:
DTN owns and operates a satellite information transmission system that
provides its subscribers with access via electronic transmission to various
types of information services.
MCG owns and operates a satellite information transmission system that
provides its subscribers with access via electronic transmission to various
types of information services.
MCG and DTN desire in this Agreement to provide for the purchase by
DTN of the assets and business as a going concern of MCG.
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:
1.1 "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.
1.2 "Assumed Liabilities" shall mean, collectively: (a) all
trade accounts payable of MCG in existence as of the Effective Date and incurred
in the ordinary course of the Business, whenever created ("Trade Payables"); (b)
all obligations and liabilities under the Leases which accrue or are to be
performed following the Effective Date; and (c) all obligations and liabilities
under the Contracts which accrue or are to be performed following the Effective
Date. The Trade Payables are listed in SCHEDULE 1.2 attached hereto. All of the
Assumed Liabilities are listed in SCHEDULES 1.2, 1.4 AND 1.7.
1.3 "Business" shall mean MCG's business of providing the
MCG Services to Subscribers.
1.4 "Contracts" shall mean, collectively: (a) all agreements
between MCG and Subscribers in effect as of the Effective Date; and (b) the
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license agreements and other contracts to which MCG is a party in connection
with the Business and listed in SCHEDULE 1.4 attached hereto.
1.5 "Effective Date" shall mean March 12, 1997. It is intend-
ed that this Agreement will be simultaneously executed and closed as of the
Effective Date.
1.6 "Farmland" shall mean Farmland Industries, Inc., a
Kansas corporation.
1.7 "Leases" shall mean all real estate and equipment leases
to which MCG is a party in connection with the Business and listed in SCHEDULE
1.7 attached hereto.
1.8 "MCG Services" shall mean, collectively: (a) MCG's
MarketPulse and MarketPRO electronic information services; and (b) all other
electronic data and/or information services provided by MCG as of the Effective
Date.
1.9 "Person" shall mean an individual, partnership,
corporation, limited liability company, trust or other entity.
1.10 "Purchased Assets" means all assets owned by MCG and used
in connection with the Business as of the Effective Date, including: (a) the
Business and the MCG Services as a going concern and all goodwill in connection
therewith; (b) all rights under the Contracts and the Leases; (c) all accounts
receivable of the Business in existence as of the Effective Date, whenever
created; (d) subject to the provisions of Section 5.1.5, all computer hardware
and peripherals, office equipment, communication systems and equipment,
host/uplink and transmission system and equipment, back-up generators and other
equipment owned by MCG, used in the Business and listed in SCHEDULE 1.10
(collectively, the "MCG Equipment") but excluding equipment subject to equipment
Leases; (e) all computer software developed or owned by MCG, including source
codes, object codes, datafeed protocols and interface programs, (f) prepaid
expenses; (g) telephone numbers, furniture, fixtures, leasehold improvements and
supplies; (h) all trade marks, service marks, trade names, logos and other
intangible assets and intellectual property of MCG; and (i) all cash of the
Business on hand as of the Effective Date, but not including the Purchase Price
to be received by MCG.
1.11 "Reuters" shall mean Reuters America Inc., a Delaware
corporation.
1.12 "Subscribers" small mean customers of MCG for one or more
of the MCG Services, including Subscribers who receive one or more of the MCG
Services; (a) directly from MCG for redistribution to their subscribers; (b) via
redistributors of the MCG Services; (c) directly from MCG for internal
redissemination physically controlled by the Subscriber independent of MCG, or
(d) directly from MCG for internal use with no redissemination.
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1.13 "Terminal" shall mean any devise installed at a
Subscriber location that is capable of providing one individual with access to
one or more of the MCG Services at that location independent of access to the
MCG Services by any other individual at the same location, but excluding: (a)
any Terminal operating by a Subscriber whose account with MCG is more than 90
days past due as of the Effective Date; (b) any device installed by MCG
exclusively for promotion, marketing, sales or customer support purposes, and
(c) any device installed at a Subscriber location on a free trial basis for not
more than one period of not to exceed 60 days.
1.14 "Territory" means the United States of America and
Canada.
2. Purchase and Sale of Purchased Assets.
2.1 Upon the terms and conditions contained herein, MCG here-
by sells, transfers and assigns to DTN, and DTN hereby purchases and acquires
from MCG, the Purchased Assets.
2.2 The Purchased Assets are purchased by DTN and sold and
delivered by MCG "as is, where is," with all faults. MCG warrants that it has
good and marketable title to the Purchased Assets free and clear of all liens,
charges, claims, encumbrances and equities other than the Assumed Liabilities.
Otherwise, MCG makes no representation or warranty, express or implied, oral or
in writing, with regard to the condition, quality, adequacy or fitness of the
Purchased Assets, including but not limited to any implied warranties of
merchantability, fitness for a particular purpose or noninfringement, and all
such warranties are expressly disclaimed.
3. Liabilities.
3.1 DTN hereby assumes and agrees to pay and discharge when
due all Assumed Liabilities and shall hold MCG, its members, Affiliates,
successors and assigns harmless therefrom.
3.2 DTN is not assuming and shall have no responsibility for
any debts, obligations or liabilities of MCG not included within the Assumed
Liabilities or not otherwise expressly assumed by DTN in accordance with this
Agreement.
3.3 MCG shall have no liability to DTN from and after the
Effective Date under that Amended and Restated Datafeed Dissemination and
Equipment Lease Agreement between DTN and MCG ("Datafeed and Equipment Lease
Agreement").
4. Purchase Price.
4.1 The purchase price (the "Purchase Price") for the
Purchased Assets shall be an amount equal to $1,500 times the number of
Terminals in existence on the day prior to the Effective Date. The parties
anticipate there will be approximately 2,400 Terminals in existence as of the
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Effective Date and attached to an Assignment and Assumption Agreement to be
executed by MCG and DTN.
4.2 The Purchase Price shall be paid by DTN to MCG by
wire transfer in immediately available funds on the Effective Date
4.3 The Purchase Price shall be allocated as follows:
Fixed Assets [ $ ]
-------------
Goodwill/Subscriber Contracts [ $ ]
-------------
Restrictive Covenant [ $ ]
-------------
DTN and MCG shall each prepare IRS Form 8594 in accordance
with the allocation set forth above in time to file such Form with the Internal
Revenue Service in accordance with applicable IRS procedures and Treasury
regulations.
5. Deliveries.
5.1 In addition to any other documents specifically required
to be delivered pursuant to this Agreement, MCG shall, in form and substance
satisfactory to DTN and its counsel, deliver to DTN on the Effective Date:
5.1.1 A xxxx of sale, assignments and other
instruments of transfer as required to effectively vest in DTN all of MCG's
right, title and interest in the Purchased Assets, free and clear of all liens,
charges, claims, encumbrances and equities other than the Assumed Liabilities.
5.1.2 Such consents to the assignment of the
Contracts as required under the terms on the Contracts and which MCG is able to
obtain prior to the Effective Date.
5.1.3 A copy of the resolution of MCG's Management
Committee authorizing the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby.
5.1.4. Executed originals or accurate copies of the
Contracts and Leases, all amendments thereto, and all extensions and renewals
thereof.
5.1.5. Copies of all business records of MCG.
DTN acknowledges that the software on which MCG's accounting system is contained
is licensed by MCG from a third party and is necessary for the purpose of
winding down MCG's operations and preparing tax returns. Accordingly, MCG's
accounting system (including hardware and software) shall be made available to
MCG and/or its members for such purposes, at no charge, for a period of twelve
months after the Effective Date. DTN shall maintain the integrity of MCG's
accounting data, software and operating system
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and shall not remove any MCG accounting information from the server or software
during such period. In the alternative, DTN shall provide after the Effective
Date such records and information as MCG or its members require for such
purposes.
5.2 In addition to any other documents specifically required
to be delivered pursuant to this Agreement, DTN shall, in form and substance
satisfactory to MCG and its counsel, deliver to MCG on the Effective Date such
assumptions and undertakings as MCG reasonably deems necessary to evidence DTN's
obligation to assume and discharge the Assumed Liabilities.
5.3 DTN shall not be required to close this Agreement unless
prior to our simultaneous with closing DTN and Reuters enter into the Datafeed
Dissemination Agreement between DTN and Reuters.
6. Documentation Subsequent to Effective Date.
6.1 From time to time after the Effective Date, without
additional consideration, MCG shall execute and deliver such further instruments
and take such other actions as DTN reasonably requests to more effectively
transfer to and vest in DTN, and to put DTN in possession of, the Purchased
Assets.
6.2 From time to time after the Effective Date, without
additional consideration, DTN shall execute and deliver such further instruments
and take such other actions as MCG reasonably requests to more effectively
evidence DTN's obligation to assume and discharge the Assumed Liabilities.
7. Absence of Brokers. Each party represents that it has not
retained or incurred liability to any Person for a broker's, finder's or agent's
fee in connection with the transactions contemplated by this Agreement; and each
party agrees to indemnify and hold the other harmless from the claim of any such
broker, finder or agent retained by such party.
8. Restrictive Covenants.
8.1 For a period of three years commencing on the Effective
Date, MCG agrees that it shall not directly or indirectly or through an
Affiliate provide, anywhere in the Territory, and real-time electronic
information service package which is substantially similar to MCG's MarketPulse
or MarketPRO Ag Service as provided on the Effective Date. DTN shall not be
required to close this Agreement unless prior to or simultaneous with closing,
Farmland enters into a noncompete agreement with DTN containing identical
covenants.
8.2 If any court having jurisdiction shall hold any of the
restrictive covenants in this Section 8 to be unenforceable or unreasonable in
scope, territory or duration and if such court shall determine the scope,
territory or duration which such court deems reasonable, then the scope,
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territory or duration of the covenants in this Section 8 shall be automatically
reduced to that determined to be reasonable by such court. Notwithstanding the
foregoing, if any provision of this Section 8 shall be unenforceable, then such
provision shall be severed from this Section 8, but every other provision shall
continue in full force and effect. The covenants in this Section 8 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
MCG agree that no allocation of the Purchase Price shall in any way reflect the
damages which would accrue to DTN in the event of any breach of such restrictive
covenants.
8.3 MCG acknowledges that the covenants in this Section 8 are
reasonable and necessary in order that DTN receive the benefits intended from
the transactions contemplated by this Agreement and that any breach of such
covenants will result in irreparable injury to DTN for which DTN has no adequate
remedy at law. In the even MCG breaches any of the covenants in this Section 8,
DTN shall be authorized to seek from any court of competent jurisdiction a
temporary restraining order and/or preliminary and permanent injunctive relief.
Such remedies shall be cumulative and not exclusive of any other rights or
remedies to which DTN may be entitled as a result of such breach.
9. MCG Employees. DTN shall have no obligation to hire any em-
ployees of MCG. MCG shall be responsible for all obligations to its employees,
including but not limited to salaries, bonuses, vacation pay, retirement bene-
fits, sick pay, insurance premiums, severance pay and other fringe benefits.
10. Indemnification.
10.1 With the exception of the Assumed Liabilities, MCG shall
defend, indemnify and hold DTN, its Affiliates, successors and assigns harmless
from any loss, claim, liability, damage, cost or expense (including but not
limited to reasonable attorneys' fees) ("Damages") arising from: (a) the conduct
of the Business or the provision of the MCG Services or the use of the Purchased
Assets prior to the Effective Date; (b) any breach of this Agreement by MCG; (c)
any material inaccuracy in any of the representations or warranties made by MCG
in this Agreement; or (d) any material inaccuracy or misrepresentation in any
certificate or other document delivered by MCG in accordance with this
Agreement.
10.2 DTN waives compliance with the Bulk Sales provisions of
the Uniforms Commercial Code in connection with this transaction. MCG shall
indemnify DTN, its Affiliates, successors and assigns against any Damages
arising by reason of non-compliance by MCG with the Bulk Sales provisions of the
Uniform Commercial Code or any equivalent statute in connection with the sale of
the Purchased Assets.
10.3 DTN shall be responsible for and shall pay the Assumed
Liabilities. DTN may make adjustments in such Assumed Liabilities as DTN deems
appropriate, provided DTN shall indemnify MCG, its members, Affiliates,
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successors and assigns from any liability which may accrue as a result of any
such adjustment.
10.4 DTN shall defend, indemnify and hold MCG, its members,
Affiliates, successors and assigns harmless from any Damages arising from: (a)
the conduct of the Business or the provision of the MCG Services or the use of
the Purchased Assets following the Effective Date, whether integrated with DTN's
other operations or operated on a stand-line basis; (b) the Assumed Liabilities;
(c) any breach of this Agreement by DTN, (d) any material inaccuracy in any of
the representations or warranties made by DTN in this Agreement; or (e) any
material inaccuracy or misrepresentation in any certificate or other document
delivered by DTN in accordance with this Agreement.
10.5 If any party ("Indemnified Party") entitled to
indemnification from the other party ("Indemnifying Party") under this Agreement
receives notice of any claim or the commencement of any action or proceeding
with respect to which the Indemnifying Party is obligated to indemnify pursuant
to this Agreement, the Indemnified Party shall promptly give the Indemnifying
Party written notice thereof. Such notice shall describe the claim in reasonable
detail and shall indicate the amount (estimated if necessary) of the loss that
has been or may be sustained by the Indemnified Party in connection therewith.
The Indemnifying Party may elect to compromise or defend, at its own expense and
by its own counsel, any such matter involving the asserted liability of the
Indemnified Party. If the Indemnifying Party elects to compromise or defend such
asserted liability, it shall within 30 days (or sooner, if the nature of the
asserted liability so requires) notify the Indemnified Party of its intent to do
so, and the Indemnified Party shall cooperate, at the Indemnifying Party's
expense, in the compromise of or defense against such asserted liability. If the
Indemnifying Party elects not to compromise or defend against the asserted
liability, if the Indemnified Party reasonably determines that the Indemnifying
Party's counsel has a conflict of interest with the Indemnified Party or the
Indemnifying Party or its counsel is not adequately defending the Indemnified
Party's interests, or if the Indemnifying Party fails to notify the Indemnified
Party of its election as provided herein, the Indemnified Party may, if acting
in accordance with its good faith business judgment, pay, compromise or defend
such asserted liability at the Indemnifying Party's expense, and such settlement
shall be binding on the Indemnifying Party for purposes of this Section 10.
Notwithstanding the foregoing, neither the Indemnifying Party nor Indemnified
Party may settle or compromise any claim over the reasonable good faith
objection of the other. The Indemnified Party may object to any settlement which
obligates the Indemnified Party to pay any funds or perform or desist from
performing any actions or which does not provide the Indemnified Party with a
full release from liability. In any event, the Indemnified Party and
Indemnifying Party may each participate, at its own expense, in the defense of
such asserted liability. If the Indemnifying Party elects to defend any claim,
the Indemnified Party shall make available to the Indemnifying Party any books,
records or other documents within its control that are necessary or appropriate
for such defense.
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10.6 Notwithstanding the foregoing provisions of this Section
10: (a) neither party shall have any liability to the other party under this
Section 10 for any indirect, incidental or consequential damages or expenses;
and (b) the aggregate liability of each party to the other under this Section 10
shall be limited to an amount not to exceed the Purchase Price.
11. Taxes and Prorations.
11.1 All sales and other similar taxes (not including state or
federal income taxes) payable in connection with this transaction and the
transfer of the Purchased Assets shall be paid by DTN, and DTN shall indemnify
and hold MCG, its members, Affiliates, successors and assigns harmless from any
and all such taxes.
11.2 All property taxes, annual license fees and similar
annual assessments due in connection with the ownership or operation of the
Purchased Assets shall be prorated between DTN and MCG as of the Effective Date.
MCG will provide DTN with an estimate of such taxes, fees and assessments and
shall make available to DTN copies of all tax assessments, notices and related
documents in its possession.
12. Nonassignable Rights. Despite anything contained herein to the
contrary, this Agreement shall not constitute an agreement to assign any
Contract if such assignment without the consent of the other party thereto would
constitute a breach thereof or in any material way affect the rights of MCG
thereunder unless such consent is obtained. If any such consent is not obtained
as of the Effective Date, of if any attempted assignment without such consent
would be ineffective or would materially affect MCG'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 ensure that DTN shall have the benefits,
rights, obligations and duties under such Contract as soon as practicable
following the Effective Date.
13. Confidentiality. The terms and conditions of this Agreement
are and shall remain and be kept 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 MCG without the prior written consent of DTN nor by DTN without
the prior written consent of MCG and its members. No press release regarding
this transaction shall be issued by MCG without the prior written consent of DTN
nor by DTN without the prior written consent of MCG, which consent by MCG shall
not be unreasonably withheld.
14. Lost Equipment Charges. DTN acknowledges that all or sub-
stantially all Equipment (as defined in the Datafeed and Equipment Lease
Agreement) has been accounted for as of the Effective Date. MCG shall have no
responsibility for, and DTN shall not assess or attempt to collect against MCG,
any Lost Equipment Charges under the Datafeed and Equipment Lease Agreement.
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15. Survival of Representations and Warranties. The repre-
sentations and warranties of DTN and MCG contained in this Agreement shall
survive the Effective Date for a period of twelve months.
16. No Assignment. Neither party may assign this Agreement or
delegate any duties hereunder without the written consent of the other party.
Any attempted assignment without such consent shall be null and void.
17. Expenses of Transaction. Except as specifically provided in
this Agreement, each party shall bear its own expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated
hereby.
18. Entire Agreement. Together with the Schedules hereto,
this constitutes the entire agreement between the parties with respect to the
subject matter hereof. 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 herein. This
Agreement may not be modified or amended except by written instrument executed
by both parties hereto.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original and both of which, taken together, shall
constitute a single instrument.
20. Notices. Any notice required or permitted under this Agree-
ment shall be in writing and may be delivered personally or sent by a nationally
recognized overnight courier, United States registered or certified mail,
postage prepaid, or facsimile transmission, addressed as set forth below:
If to MCG: Market Communications Group, L.L.C.
0000 XX 000xx Xxxxxxx
Xxxxxx Xxxx, XX 00000
FAX (000) 000-0000
Attn: President
With copies to: Xxxxxxx, Mag & Fizzell, P.C.
Suite 2800
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
FAX (000) 000-0000
Attn: Xxxx Xxxxx, Esq.
and
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Farmland Industries, Inc.
0000 X. Xxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx 00
Xxxxxx Xxxx, XX 00000
FAX (000) 000-0000
Attn: Vice President and General
Counsel
and
Reuters America Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
FAX (000) 000-0000
Attn: Vice President and General
Counsel
If to DTN: Data Transmission Network Corp.
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
FAX (000) 000-0000
Attn: President
With a copy to: Xxxxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
FAX (000) 000-0000
Attn: R. Xxxxx Xxx, Esq.
or to any other address or facsimile number as either party shall give the other
in writing.
21. 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 successors and permitted assigns.
22. Section Headings. Section headings 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.
23. Incorporation of Schedules. Each of the Schedules referred
to herein and attached hereto are incorporated herein and shall be deemed to be
a part of this Agreement.
24. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nebraska, without
reference to conflicts of laws rules.
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25. Survival. Those provisions of this Agreement which by their
nature are intended to survive the Effective Date shall so survive for such
period of time as necessary to achieve full performance thereof.
26. Conduct and Transactions of MCG Prior to Closing. It is in-
tended that this Agreement will be simultaneously executed and closed. However,
from the date of this Agreement until closing, except to the extent expressly
permitted by this Agreement or resulting from or incident to the transaction
contemplated hereby, or as otherwise consented to by an instrument in writing
signed by DTN:
26.1 MCG will use commercially reasonable efforts to keep the
Business and MCG's 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 the
Business as presently conducted or necessary or incidental to the performance of
this Agreement, and MCG will use its commercially reasonable efforts to keep
available the services of its officers, employees and agents and to maintain the
goodwill and reputation associated with the MCG Services.
26.2 MCG will not make any changes in its Certificate of
Formation or Limited Liability Company Agreement which would preclude, hinder,
interfere with or otherwise impair the ability of MCG to perform its obligations
pursuant to this Agreement and to consummate the transaction contemplated
hereby.
26.3 MCG will use commercially reasonable 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 properly.
26.4 MCG 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 the Business consistent with the
representations and warranties of MCG contained herein and not in breach of any
of the provisions of this Section 26.
26.5 MCG shall not encumber or permit to be encumbered any
of the Purchased Assets.
26.6 MCG shall not do, or cause to be done, any act or suffer,
or cause to be suffered, any omission which would result in a breach of any of
the representation, warranties or covenants of MCG contained herein if the same
were made a new immediately after such act or omission.
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IN WITNESS WHEREOF, the 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.
MARKET COMMUNICATIONS GROUP, L.L.C.,
a Delaware limited liability company
By:
-----------------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
DATA TRANSMISSION NETWORK CORPORATION
a Delaware corporation
By:
-----------------------------------------
Xxxx X. Xxxxx
President Chief Operating Officer
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SCHEDULE 1.2
Trade Payables
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SCHEDULE 1.4
Contract Other Than Subscriber Agreements
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SCHEDULE 1.7
Leases
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SCHEDULE 1.10
MCG Equipment
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NONCOMPETE AGREEMENT
This Agreement is entered into as of March 12, 1997 by Farmland Industries Inc.,
a Kansas corporation ("Farmland"), and Data Transmission Network Corporation, a
Delaware corporation ("DTN").
RECITALS
DTN has agreed to purchase the assets and business of Market
Communications Group, L.L.C., a Delaware limited liability company ("MCG")
pursuant to that Purchase and Restrictive Covenant Agreement of even date
herewith ("Purchase Agreement"). Farmland is a member of MCG and is willing to
give the undertakings contained herein as an inducement for DTN to enter into
the Purchase Agreement.
In consideration of the foregoing and the mutual promises and covenants
contained herein, the parties agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings given such terms in the Purchase Agreement.
2. Restrictive Covenant. For a period of three years commencing on the
Effective Date, Farmland agrees that it shall not directly or indirectly or
through an Affiliate provide, anywhere in the Territory, any real-time
electronic information service package which is substantially similar to MCG's
MarketPulse or MarketPRO Ag Service as provided on the Effective Date (the
"Restrictive Covenant"). DTN acknowledges and agrees that the businesses and
activities conducted by Farmland as of the date of this Agreement are not in
violation of the provisions of the Restrictive Covenant.
3. Enforcement. Farmland acknowledges the Restrictive Covenant is
reasonable and necessary in order that DTN receive the benefits intended from
the transaction contemplated by the Purchase Agreement and that any breach of
the Restrictive Covenant will result in irreparable injury to DTN for which DTN
has no adequate remedy at law. Accordingly, if Farmland breaches the Restrictive
Covenant, DTN shall be authorized to seek from any court of competent
jurisdiction a temporary restraining order and/or preliminary and permanent
injunctive relief for the duration of the Restrictive Covenant.
4. Severability. If a final judicial determination is made that any
provision of the Restrictive Covenant constitutes an unreasonable or otherwise
unenforceable restriction against Farmland, Farmland and DTN agree that such
provision shall be void only to the extent such provision is so determined to be
unreasonable or otherwise unenforceable, and shall be modified to the extent
required to render the same reasonable and enforceable under the circumstances.
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5. Miscellaneous. This constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or amended
except by written instrument executed by Farmland and DTN. This Agreement shall
be binding on the parties and their respective Affiliates, associates and
employees. This Agreement shall be governed by the laws of the State of
Nebraska, without reference to conflicts of laws rules. This Agreement may be
executed in counterparts, each of which shall be an original and both of which,
taken together, shall constitute a single instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
FARMLAND INDUSTRIES, INC.
By:
---------------------------------
"Farmland"
DATA TRANSMISSION NETWORK
CORPORATION
By:
---------------------------------
"DTN"
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XXXX OF SALE
------------
Effective March 12, 1997, Market Communications Group, L.L.C., a
Delaware limited liability company ("Seller"), for good and valuable
consideration paid to Seller by Data Transmission Network Corporation, a
Delaware corporation ("Buyer"), receipt of which is hereby acknowledged, and
subject to the terms and conditions of that Purchase and Restrictive Covenant
Agreement of even date herewith (the "Purchase Agreement"), does hereby
irrevocably sell, assign, transfer and deliver to Buyer, its successors and
assigns, the entire right, title and interest of Seller in the Purchase Assets,
as defined in Section 1.10 of the Purchase Agreement, including, without
limitation, the tangible assets listed on Exhibit A attached hereto, wherever
such Purchased Assets may be located and whether or not reflected on the balance
sheet of Seller. All capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Purchase Agreement.
Seller warrants, covenants and agrees that it:
(i) is hereby conveying good and indefeasible title to the
Purchase Assets, free and clear of all liens, charges, claims, encumbrances and
equities whatsoever;
(ii) has complete and unrestricted power to enter into this Xxxx of
Sales and to sell, assign and transfer its right, title and interest in and to
the Purchase Assets and such sale, assignment and transfer do not and will not
require the consent or approval of any third person or governmental entity,
except as provided in the Purchase Agreement or as otherwise disclosed in
writing to Buyer;
(iii) will forever fully warrant and defend Seller's title to the
Purchased Assets against any and all claims and demands of any kind and
description (other than claims or demands created by sanctions or omissions of
Buyer); and
(iv) will take all steps necessary to put Buyer, its successors or
assigns, in actual possession and control of the Purchased Assets.
Seller agrees that it shall execute and deliver or cause to be executed and
delivered from time to time such instruments, documents, agreements, consents
and assurances and shall take such other actions as Buyer reasonably may require
to more effectively convey, transfer and vest in Buyer all right, title and
interest in and to the Purchased Assets, to put Buyer in possession of the
Purchased Assets, and to carry out the intent and purposes of this instrument.
This instrument shall be binding upon Seller and inure to the benefit
of and be enforceable by Buyer, and their respective successors and assigns.
19
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IN WITNESS WHEREOF, Seller has caused this instrument to be executed as
of March 12, 1997.
MARKET COMMUNICATIONS GROUP, L.L.C.
By:
---------------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
"Seller"
ACCEPTED:
DATA TRANSMISSION NETWORK
CORPORATION
By:
---------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
"Buyer"
20
- 30 -
EXHIBIT A
Tangible Assets
---------------
- 31 -
ASSIGNMENT AND ASSUMPTION OF SUBSCRIBER AGREEMENTS
--------------------------------------------------
This Assignment is entered into as of March 12, 1997, by Market
Communications Group, L.L.C., a Delaware limited liability company ("Assignor"),
and Data Transmission Network Corporation, a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor and Assignee are parties to that Purchase and Re-
strictive Covenant Agreement (the "Purchase Agreement") pursuant to which
Assignee has agreed to acquire the assets and business as a going concern of
Assignor.
B. Assignor is a party to the subscriber agreements (the "Sub-
criber Agreements") listed on Exhibit A attached hereto.
C. As part of the transaction contemplated by the Purchase
Agreement, Assignor desires to assign to Assignee all of Assignor's rights and
obligations under the Subscriber Agreements.
AGREEMENT
---------
In consideration of the foregoing and the mutual promises and covenants
contained herein, Assignor and Assigned agree as follows:
1. Assignor assigns to Assignee all of Assignor's right, title
and interest in and obligations under the Subscriber agreements.
2. Assignee accepts such assignment and assumes and agrees to
perform when due all of Assignor's obligations under the Subscriber Agreements
which accrue following the date hereof.
3. This Assignment may be executed in counterparts, each of which
shall be an original and both of which, taken together, shall constitute a
single instrument.
21
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IN WITNESS WHEREOF, Assignor and Assignee have cause this Assignment to
be executed as of the date set forth above.
MARKET COMMUNICATIONS GROUP, L.L.C.
By:
---------------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
"Assignor"
``
DATA TRANSMISSION NETWORK
CORPORATION
By:
---------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
"Assignee"
22
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EXHIBIT A
List of Subscribers
23
- 34 -
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
--------------------------------------
This Assignment is entered into as of March 12, 1997, by Market
Communications Group, L.L.C., a Delaware limited liability company ("Assignor"),
and Data Transmission Network Corporation, a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor and Assignee are parties to that Purchase and Restrictive
Covenant Agreement (the "Purchase Agreement") pursuant to which Assignee has
agreed to acquire the assets and business as a going concern of Assignor.
B. Assignor is a party to the agreements (the "Contracts") listed
on Exhibit A attached hereto.
C. As part of the transaction contemplated by the Purchase
Agreement, Assignor desires to assign to Assignee all of Assignor's rights and
obligations under the Contracts.
AGREEMENT
---------
In consideration of the foregoing and the mutual promises and covenants
contained herein, Assignor and Assignee agree as follows:
1. Assignor assigns to Assignee all of Assignor's right, title
and interest in and obligations under the Contracts.
2. Assignee accepts such assignment and assumes and agrees to pay and
perform when due all of Assignor's obligations under the Contracts which accrue
following the date hereof.
3. This Assignment may be executed in counterparts, each of which shall
be an original and both of which, taken together, shall constitute a single
instrument.
24
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IN WITNESS WHEREOF, Assignor and Assignee have cause this Assignment to
be executed as of the date set forth above.
MARKET COMMUNICATIONS GROUP, L.L.C.
By:
---------------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
"Assignor"
DATA TRANSMISSION NETWORK
CORPORATION
By:
---------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
"Assignee"
25
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EXHIBIT A
List of Contracts
26
- 37 -
CONSENT
-------
The undersigned hereby consents to the assignment by Market
Communications Group, L.L.C., a Delaware limited liability company ("MCG"), to
Data Transmission Network Corporation, a Delaware corporation ("DTN") of the
contract identified below (the "Contract"). The undersigned acknowledges the
Contract is in full force and effect and constitutes the legal, valid and
binding obligation of the undersigned, and that MCG is not in default
thereunder.
Dated as of March 12, 1997.
------------------------------------------
Company Name
By
-----------------------------------------
Signature
Contract:
---------------------------------------------
---------------------------------------------
27
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ASSIGNMENT AND ASSUMPTION OF OFFICE LEASE
-----------------------------------------
This Assignment is entered into as of March 12, 1997, by Market
Communications Group, L.L.C., a Delaware limited liability company ("Assignor"),
and Data Transmission Network Corporation, a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor and Assignee are parties to that Purchase and Re-
strictive Covenant Agreement (the "Purchase Agreement") pursuant to which
Assignee has agreed to acquire the assets and business as a going concern of
Assignor.
B. Assignor maintains office space at 0000 X.X. 000xx Xxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 (the "Leased Premises").
The Leased Premises are subject to a lease (the "Office Lease") between
Farmland Industries, Inc. as landlord ("Landlord") and Assignor as tenant.
C. As part of the transaction contemplated by the Purchase
Agreement, Assignor desires to assign to Assignee all of Assignor's rights and
obligations under the Contracts.
AGREEMENT
---------
In consideration of the foregoing and the mutual promises and covenants
contained herein, Assignor and Assignee agree as follows:
1. Assignor assigns to Assignee all of Assignor's right, title
and interest in and obligations under the Office Lease.
2. Assignee accepts such assignment and assumes and agrees to
pay and perform when due all of Assignor's obligations under the Office Lease
which accrue following the date hereof.
3. This Assignment may be executed in counterparts, each of which
shall be an original and both of which, taken together, shall constitute a
single instrument.
28
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IN WITNESS WHEREOF, Assignor and Assignee have cause this Assignment to
be executed as of the date set forth above.
MARKET COMMUNICATIONS GROUP, L.L.C.
By:
---------------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
"Assignor"
DATA TRANSMISSION NETWORK
CORPORATION
By:
---------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
"Assignee"
29
- 40 -
CONSENT
-------
The undersigned Landlord consents to the assignment by Market
Communications Group, L.L.C., a Delaware limited liability company ("MCG"), to
Data Transmission Network Corporation, a Delaware corporation ("DTN") of that
Office Lease for the premises located at 0000 X.X. 000xx Xxxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 and releases MCG from all duties and obligations under the Office
Lease which accrue following the date hereof. The undersigned acknowledges that
the Office Lease is in full force and effect and constitutes the legal, valid
and binding obligation of the undersigned, and that MCG is not in default
thereunder.
Dated as of March 12, 1997.
Farmland Industries, Inc.
By
----------------------------------------
30
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ASSIGNMENT AND ASSUMPTION OF EQUIPMENT LEASES
---------------------------------------------
This Assignment is entered into as of March 12, 1997, by Market
Communications Group, L.L.C., a Delaware limited liability company ("Assignor"),
and Data Transmission Network Corporation, a Delaware corporation ("Assignee").
RECITALS
--------
A. Assignor and Assignee are parties to that Purchase and Re-
strictive Covenant Agreement (the "Purchase Agreement") pursuant to which
Assignee has agreed to acquire the assets and business as a going concern of
Assignor.
B. Assignor is a party to the equipment leases (the "Equipment
Leases") identified on Exhibit A attached hereto.
C. As part of the transaction contemplated by the Purchase
Agreement, Assignor desires to assign to Assignee all of Assignor's rights and
obligations under the Equipment Leases.
AGREEMENT
---------
In consideration of the foregoing and the mutual promises and covenants
contained herein, Assignor and Assignee agree as follows:
1. Assignor assigns to Assignee all of Assignor's right, title and
interest in and obligations under the Equipment Leases.
2. Assignee accepts such assignment and assumes and agrees to pay and
perform when due all of Assignor's obligations under the Equipment
Leases which accrue following the date hereof.
3. This Assignment may be executed in counterparts, each of which shall be
an original and both of which, taken together, shall constitute a
single instrument.
31
- 42 -
IN WITNESS WHEREOF, Assignor and Assignee have cause this Assignment to
be executed as of the date set forth above.
MARKET COMMUNICATIONS GROUP, L.L.C.
By:
---------------------------------------
Xxxxxxx X. Xxxxxx
President and CEO
"Assignor"
DATA TRANSMISSION NETWORK
CORPORATION
By:
---------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
"Assignee"
32
- 43 -
EXHIBIT A
---------
Equipment Leases
33
- 44 -
CONSENT
-------
The undersigned equipment lessor hereby consents to the assignment by
Market Communications Group, L.L.C., a Delaware limited liability company
("MCG"), to Data Transmission Network Corporation, a Delaware corporation
("DTN") of that Equipment Lease identified below (the "Equipment Lease"). The
undersigned acknowledges that the Equipment Lease is in full force and effect
and constitutes the legal, valid and binding obligation of the undersigned, and
that MCG is not in default thereunder.
Dated as of March 12, 1997.
------------------------------------------
Company
By
----------------------------------------
Signature
Equipment Lease:
-----------------------------------
-----------------------------------
34
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STATEMENT OF UNANIMOUS CONSENT
OF THE MANAGEMENT COMMITTEE
OF
MARKET COMMUNICATIONS GROUP, L.L.C.
------------------------------------
The undersigned, being all the members of the Management Committee of
Market Communications Group, L.L.C., a Delaware limited liability company (the
"Company"), in lieu of holding a special meeting of the Management Committee,
hereby consent to the adoption of and hereby adopt the following resolutions,
effective as of this date, such resolutions to have the same force and effect as
if adopted at a special meeting of the Management Committee duly called and
held:
BE IT RESOLVED, that the Management Committee
believes it to be in the best interests of the Company that the assets
and business as a going concern of the Company be sold to Data
Transmission Network Corporation ("DTN") pursuant to that Purchase and
Restrictive Covenant Agreement (the "Purchase Agreement") between the
Company and DTN.
FURTHER RESOLVED, that the Purchase Agreement and the
terms thereof and the transactions contemplated thereby are ratified
and improved in all respects, and the Company is authorized to enter
into and perform its obligations under the Purchase Agreement.
FURTHER RESOLVED, that the President of the Company
is authorized and directed to execute and deliver the Purchase
Agreement in the name and on behalf of the Company, with such changes,
additions or deletions as approved by the Management Committee, such
approval being conclusively evidenced by the President's signature
thereto.
FURTHER RESOLVED, that the President of the Company
is authorized and directed to execute and deliver such further
agreements, certificates and documents and to take such other actions,
in the name and on behalf of the company, as he deems necessary or
appropriate to carry out the Company's obligations under the Purchase
Agreement, to consummate the transactions contemplated thereby and to
carry out the purpose and intent of the foregoing resolutions.
FURTHER RESOLVED, that the President of the Company
is authorized and directed to engage and consult with such accountants,
legal counsel and other advisers as he deems appropriate in connection
with the actions to be taken under the foregoing resolutions.
FURTHER RESOLVED, that any and all actions heretofore
or hereafter taken by the President of the company in furtherance of
the transactions contemplated by the foregoing resolutions are ratified
and approved in all respects.
Dated : March 12, 1997.
For Reuters America Inc. For Farmland Industries, Inc.
---------------------------- ------------------------------
Xxxx Xxxx H. D. Xxxxxxx
---------------------------- ------------------------------
Xxxxxxx Xxxxx Xxxx Xxxxxxx
---------------------------- ------------------------------
Xxxxxx Xxxxxxxx Xxxx Xxxx
35
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