AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 11, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
DATA BROADCASTING CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
----------------
DELAWARE 13-3668779
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
----------------
3490 Clubhouse Drive, I-2
Jackson, Wyoming 83001
(307) 733-9742
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
-----------------
Reed L. Benson
Secretary and General Counsel
7050 Union Park Avenue #600
Midvale, Utah 84047
(801) 562-2252
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Camhy Karlinksy & Stein LLP
1740 Broadway, 16th Floor
New York, New York 10019-4315
Attn: Alan I. Annex
(212) 977-6600
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ].
If any of the securities being registered on the Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [x].
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Proposed maximum
Title of each class maximum aggregate Amount of
of securities Amount to be offering price offering Registration
to be registered registered per unit (1) price (1) fee
- --------------------------------------------------------------------------------
Common Stock, $.01
par value.......... 3,485,200 Shares $7.44 $17,550,190 $6,051.79
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933 based upon the average bid
and ask prices for Data Broadcasting Corporation Common Stock as reported by the
National Association of Securities Dealers, Inc. through its Automated Quotation
System on February 6, 1997.
The Company hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Company shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
================================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
SUBJECT TO COMPLETION, DATED February 11, 1997
Data Broadcasting Corporation
3,485,200
Common Shares
($.01 Par Value)
----------------
This Prospectus relates to the sale of up to 3,485,200 shares (the
"Shares") of common stock, $.01 par value (the "Common Stock") of Data
Broadcasting Corporation, a Delaware corporation (the "Company"). The Company
has agreed to pay certain costs and expenses incurred in connection with the
registration of the Shares offered hereby, except that the Selling Shareholders
shall be responsible for all selling commissions, transfer taxes and related
charges in connection with the offer and sale of such Shares. See "Plan of
Distribution".
The Common Stock is traded on the NASDAQ National Market System
("NASDAQ-NMS") under the symbol DBCC. On February 6, 1997 the closing sale price
of the Company's Common Stock on the NASDAQ-NMS was $7.44 per share. The Selling
Shareholders may sell all or a portion of the Shares offered hereby in private
transactions or in the over-the-counter market at prices related to the
prevailing prices of the shares on the NASDAQ-NMS at the time of sale. The
Selling Shareholders may effect such transactions by selling to or through one
or more broker-dealers, and such broker-dealers may receive compensation in the
form of underwriting discounts, concessions or commissions from the Selling
Shareholders. The Selling Shareholders will be required to represent that they
have knowledge of Rule 10b-2 and Regulation M promulgated under the Securities
and Exchange Act of 1934, which proscribes certain manipulations and deceptive
practices in connection with a distribution of securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus (including the
material incorporated herein by reference) and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any other person deemed to be an underwriter. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the shares covered by this Prospectus by anyone in any state in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so to anyone to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create an implication that
there has been no change in the affairs of the Company since the date hereof.
----------------
The date of this Prospectus is February 11, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company under the Exchange Act can
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D. C. 20549. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition,
such reports, proxy statements and other information can be inspected at the
offices of Nasdaq, 1735 "K" St. N.W., Washington, D. C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3, (together with all amendments and exhibits thereto referred to herein as
the "Registration Statement") under the Securities Act of 1933 (the "Securities
Act"), with respect to the Shares offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement, which may be inspected and copied in the manner and at
the sources described above.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference:
1 The Company's Annual report on Form 10-K for the year ended June 30, 1996;
and
2. The Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c) or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of Common Stock which is the subject of this
Prospectus shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement in
this Prospectus or in any subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to any person to whom a copy of
this Prospectus has been delivered, on the written or oral request of any such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference, other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
in such documents. Written or oral requests for such copies should be directed
to Reed L. Benson, Secretary, Data Broadcasting Corporation, 7050 Union Park
Avenue, Suite 600, Midvale, Utah 84047 (Telephone: 801-562-2252).
3
<PAGE>
THE COMPANY
Subsequent to the acquisition of Broadcast International, Inc. ("BII") on
June 30, 1995, Data Broadcasting Corporation operates in two business segments.
The Information Services Division ("ISD") includes DBC West, Market Information
Corporation (operating under the trade name "BMI") and Capital Management
Sciences ("CMS"). ISD provides real-time stock market quotes, equity and fixed
income analytics, financial market information and news, access to historical
financial databases, and other information to individual investors, traders and
portfolio managers on a subscription basis. ISD also provides sports information
to sports enthusiasts. The Business Services Division includes Instore Satellite
Network ("ISN") which delivers point to multipoint communication services,
primarily to retail merchants and business associations, and CheckRite
International, Inc. ("CRI") which provides check recovery and check verification
data and services to retail merchants. The Company distributes its services via
wireless communication devices that rely on FM subcarriers, satellite
transmission, cable television systems, telephone lines, the Internet and other
means of transmission.
RISK FACTORS
In addition to the other information provided in this Prospectus, the
following factors should be considered carefully in evaluating the business of
the Company before purchasing the shares of Common Stock offered by this
Prospectus.
Limited Operating History. The Company has a limited operating history upon
which investors may evaluate its performance. Although the Company has been
profitable since 1992 and has achieved increasing levels of revenues, there can
be no assurance that the Company's profitability or current rate of growth will
continue in the future.
Competition. The market for the products and services of the Company is
highly competitive. The Company faces substantial competition from various
companies, including many that have greater financial and other resources, and
more established customer bases than the Company.
New Products and Technological Change. The communications industry is
characterized by technological change and frequent introductions of new
products. Accordingly, the future growth and profitability of the Company are
dependent in part on their ability to respond effectively to technological
changes and to successfully develop and market new products and services which
achieve significant market acceptance. The emergence of the internet may have an
effect on the Company's ability to market its financial services data.
Key Personnel. The Company's continued success is dependent on its key
management personnel, including its Co-Chief Executive Officers and its
President. The Company maintains no life insurance on key personnel.
Recent Acquisitions. In June 1995, the Company merged with BII (the
"Merger"), which substantially increased the Company's assets and revenues.
4
<PAGE>
In addition, since the Merger, the Company has made five acquisitions of
smaller companies complementing the company's products and services.
The Merger and the other acquisitions have produced increased revenues due
to enhanced marketing and growth opportunities and improved profitability
resulting from certain economies of scale and other operating efficiencies.
There can be no assurance, however, that such benefits will continue or that the
Company will continue to achieve or sustain profitable operations with respect
to the Merger or the other acquisitions. The process of integrating the various
businesses into the Company's operations may result in unforeseen operating
difficulties and could absorb significant management attention and resources
that would otherwise be available for the ongoing development of the business of
the Company.
Dependence Upon Financial Markets. A significant portion of the Company's
revenues is derived from supplying financial data and quotations related to U.S.
financial exchanges and markets. Any significant downturn or other negative
development with respect to those exchanges and markets could adversely effect
the Company's revenues.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
offered hereby. The Company will receive approximately $8,035,000 from the
exercise of certain options or warrants to acquire Shares of Common Stock (the
"Convertible Securities"), assuming the exercise of all such Convertible
Securities, of which there can be no assurance. All such proceeds will be used
for working capital purposes. The Company issued the Shares and the Convertible
Securities in connection with the acquisition of several businesses over the
past three years.
SELLING SHAREHOLDERS
During the past three years the Company made several acquisitions of
businesses for consideration consisting of Shares of Common Stock and/or
Convertible Securities. These transactions are summarized below:
Shares or
Convertible Securities
----------------------
1. Data Sport Inc.--The assets of Data Sport, Inc. were 111,833
acquired under agreement dated January 31, 1994 in
part for warrants to purchase Company stock at
$4.61 per share.
2. CMS Options--The assets of Capital Management 1,744,033
Sciences ("CMS") were acquired under agreement dated
February 9, 1994 in part for 1,744,033 options to
purchase Company stock at $3.42 per share based
on future performance of CMS.
5
<PAGE>
3. Saverin Warrants--On May 4, 1994, the Company issued 250,000
Kenneth A. Saverin warrants to purchase Company stock
at $3.42 per share in consideration of his services
in securing financing used to acquire CMS assets.
4. Timex Shares and Warrants--On December 16, 1994, the 101,000
Company issued 1,000 shares of Company stock and
granted options to acquire 100,000 shares of Company
stock at $7.00 per share in consideration of Timex
Corporation's development services.
5. Computer Sports World, Inc. ("CSW")--The Company 14,587
acquired CSW effective April 1, 1995 and issued 14,587
shares of Company stock in consideration therefor.
6. Las Vegas Sports Consultants, Inc. ("LVSC")--The Company 330,206
merged with LVSC under agreement dated July 1, 1996
and issued 330,206 shares of Company stock in
consideration therefor.
7. Check Network, Inc. ("CNI")--A subsidiary of the Company 128,700
merged with CNI under agreement dated September 16, 1996
and issued 128,700 shares of Company stock in
consideration therefor.
8. Federal News Service, Inc. ("FNS")--The Company acquired 804,841
the assets of FNS under agreement dated October 10, 1996
and issued 804,841 shares of Company stock in consideration
therefor. _________
Total Shares and Convertible Securities issued 3,485,200
Such Shares and Convertible Securities have not been previously registered
with the Commission. The agreements under which the above described acquisitions
were made contain certain registration rights and this Registration Statement is
filed to satisfy the Company's obligations thereunder.
The following table sets forth the number of shares of Common Stock
beneficially owned by the Selling Shareholders on January 15, 1997, the number
of Shares covered by this Prospectus and the amount and percentage ownership of
the Selling Shareholder after the offering. All Shares are beneficially owned
and the sole voting and investment power is held by the person named. None of
the Selling Shareholders, except James A. Kaplan, who has been employed by the
Company and serves as a member of the Board of Directors, has had any material
relationship with the Company during the past three years other than the
ownership of shares of Common Stock or as employees of businesses purchased.
6
<PAGE>
<TABLE>
<CAPTION>
Common Stock Shares Common Stock
Beneficially Being Beneficially Owned
Owned Prior Offered After the Offering
to the Offering
------------------------ ------- ------------------------
Number Percent Number Percent
Data Sport Warrants ------ ------- ------ -------
- -------------------
<S> <C> <C> <C> <C> <C>
Kathryn E. Anderson 1,528 * 1,528 0 *
Matthew J. Anderson 1,528 * 1,528 0 *
Noel E. Anderson 1,528 * 1,528 0 *
Marguerite A. Barnes 3,055 * 3,055 0 *
J. Richard Boustead 9,167 * 9,167 0 *
Barbara Brotsky 12,223 * 12,223 0 *
Thom Calandra 3,055 * 3,055 0 *
Donald Dana 4,583 * 4,583 0 *
Robert C. Friese 1,528 * 1,528 0 *
Rita Glasser & 1,528 * 1,528 0 *
Phillip Glasser
Mabel Jorczik 4,889 * 4,889 0 *
Abe Kramer & 1,528 * 1,528 0 *
Ann Kramer
Abe Kramer & 1,528 * 1,528 0 *
Nathan Kramer * 0 *
Erika L. Kramer 917 * 917 0 *
Matthew L. Kramer 917 * 917 0 *
David Lerner 3,055 * 3,055 0 *
George Lerner 9,167 * 9,167 0 *
Barbara Lewit 4,583 * 4,583 0 *
Jay & Susan Mall 4,583 * 4,583 0 *
Market Data Corp. 9,167 * 9,167 0 *
Richard Mendelsohn 3,055 * 3,055 0 *
Robert Naify 13,750 * 13,750 0 *
Resources Trust Co. 4,583 * 4,583 0 *
FBO Leslie M. Lawrence, IRA
Richard Wollack 4,583 * 4,583 0 *
Paul Glasser 2,750 * 2,750 0 *
Elsie Sanftleben 3,055 * 3,055 0 *
TOTAL 111,833 111,833
CMS Options
- -----------
James A. Kaplan 1,216,885 3.7% 751,626 465,259 1.4%
Sonia N. Dixon 71,984 * 71,984 0 *
Laurie S. Adami 72,830 * 72,830 0 *
Daniel D. Foley 32,269 * 32,269 0 *
Afsaneh Daneshrad 8,113 * 8,113 0 *
Charles H. Belvin 8,113 * 8,113 0 *
Estate of Donald Kaplan 96,986 * 96,986 0 *
Richard Kaplan 96,986 * 96,986 0 *
Leo I. Kaplan Trust 242,201 * 242,201 0 *
David & Bari Silvern 226,981 * 226,981 0 *
Lawrence Gallagher 61,984 * 61,984 0 *
Terence Henchy 39,734 * 39,734 0 *
7
<PAGE>
<CAPTION>
Common Stock Shares Common Stock
Beneficially Being Beneficially Owned
Owned Prior Offered After the Offering
to the Offering
------------------------ ------- ------------------------
Number Percent Number Percent
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Thomas H. Greenwald 8,113 * 8,113 0 *
Oren Cheyette 18,000 * 18,000 0 *
Michael A. Rubel 8,113 * 8,113 0 *
TOTAL 2,209,292 1,744,033
Kenneth A. Saverin 250,000 * 250,000 0 *
Timex Corporation 101,000 * 101,000 0 *
COMPUTER SPORTS WORLD, INC.
- ---------------------------
Norman D. Fast 9,482 * 9,482 0 *
Carl H. Lauterjung 4,862 * 4,862 0 *
Brian M. Seba 243 * 243 0 *
TOTAL 14,587 14,587
LAS VEGAS SPORTS CONSULTANTS
- ----------------------------
Michael Roxborough 330,206 1.0 330,206 0 *
CHECK NETWORK, INC.
- -------------------
Joyce Edstrom 65,027 * 65,027 0 *
David Edstrom 63,673 * 63,673 0 *
TOTAL 128,700 128,700
FEDERAL NEWS SERVICE, INC.
- --------------------------
Cortes W. Randell 527,654 1.6% 527,654 0 *
Generation Trust 134,489 * 134,489 0 *
John D. Beckett 56,178 * 56,178 0 *
Kevin A. Beckett 16,579 * 16,579 0 *
Mary J. Heath 5,070 * 5,070 0 *
Roy B. Kelly 30,584 * 30,584 0 *
Kirsten M. Carter 6,117 * 6,117 0 *
Carolyn Beckett 6,117 * 6,117 0 *
Catherine Beckett 6,117 * 6,117 0 *
Jonathan M. Beckett Trust 6,117 * 6,117 0 *
Joel Beckett Trust 6,117 * 6,117 0 *
Morrison J. & Kirsten M. Carter
John D. Beckett 3,702 * 3,702 0 *
Total 804,841 804,841
* Represents less than 1% of issued and outstanding Common Stock.
</TABLE>
8
<PAGE>
PLAN OF DISTRIBUTION
The sale of all or a portion of the Shares by the Selling Shareholders may
be effected from time to time in private transactions or in the over-the-counter
market at prices related to the prevailing prices of the Shares on the
NASDAQ-NMS at the time of the sale or at negotiated prices. The Selling
Shareholders may effect such transactions by selling to or through one or more
broker-dealers, and such broker-dealers may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling
Shareholders. The Selling Shareholders and any broker-dealers that participate
in the distribution may under certain circumstances be deemed to be
"underwriters" within the meaning of the Securities Act, and any commissions
received by such broker-dealers and any profits realized on the resale of Shares
by them may be deemed to be underwriting discounts and commissions under the
Securities Act. The Company and the Selling Shareholders may agree to indemnify
such broker-dealers against certain liabilities, including liabilities under the
Securities Act. In addition, the Company has agreed to indemnify certain of the
Selling Shareholders with respect to the Shares of Common Stock offered hereby
against certain liabilities, including certain liabilities under the Securities
Act.
To the extent required under the Securities Act, a supplemental prospectus
will be filed, disclosing (a) the name of any such broker-dealers, (b) the
number of shares involved, (c) the price at which such shares are to be sold,
(d) the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable, (e) that such broker-dealers did not conduct
any investigation to verify the information set out or incorporated by reference
in this Prospectus, as supplemented, and (f) other facts material to the
transaction.
Each Selling Shareholder may be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including, without
limitation, Rules 10b-2, 10b-6 and 10b-7, which provisions may limit the timing
of purchases and sales of any of the securities by the Selling Shareholders.
There is no assurance that any of the Selling Shareholders will sell any of
the Shares.
The Company has agreed to pay certain costs and expenses incurred in
connection with the registration of the Shares offered hereby, except that the
Selling Shareholders shall be responsible for all selling commissions, transfer
taxes and related charges in connection with the offer and sale of such Shares.
The Company has agreed to keep the registration statement relating to the
offering and sale by the Selling Shareholders of the Shares continuously
effective until such date as such Shares may be resold without registration
under the provisions of the Securities Act, under Rule 144 thereof or otherwise.
9
<PAGE>
DESCRIPTION OF COMPANY CAPITAL STOCK
The authorized capital stock of the Company presently consists of
75,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par
value $0.01 per share.
The following is a summary of the terms of the Company Common Stock.
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared by the Board of Directors out of
funds legally available therefor. Upon the liquidation, dissolution or winding
up of the Company, the holders of Common Stock are entitled to receive ratably
the net assets of the Company available after the payment of debts and other
liabilities. Holders of Common Stock have no preemptive, subscription,
redemption or conversion rights. The outstanding shares of Common Stock are
fully paid and nonassessable.
LEGAL MATTERS
Certain legal matters in connection with the sale of the Common Stock
offered pursuant to this Prospectus will be passed upon for the Company by Camhy
Karlinsky and Stein LLP, New York City, New York.
EXPERTS
The consolidated financial statements as of June 30, 1996 and 1995 and for
each of the two years in the period ended June 30, 1996 incorporated in this
Prospectus by reference to the Annual Report on Form 10-K of Data Broadcasting
Corporation for the year ended June 30, 1996 have been so incorporated in
reliance on the reports of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements and schedule of Data Broadcasting
Corporation and Subsidiaries included in the Company's Annual Report on Form
10-K, for the year ended June 30, 1994, incorporated by reference in this
Prospectus and in the Registration Statement, have been audited by Coopers &
Lybrand L.L.P., independent public accountants, as indicated in their reports
with respect thereto, and are incorporated herein by reference in reliance upon
the report of such firm which report is given upon their authority as experts in
accounting and auditing.
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized. Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that there has been no
change in the affairs of the Company since the date hereof. This Prospectus does
not constitute an offer to sell or a solicitation by anyone in any jurisdiction
in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to anyone to whom
it is unlawful to make such offer or solicitation.
----------
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be borne by the
Company in connection with the issuance and distribution of the securities being
registered hereby.
Securities and Exchange Commission registration fee .... $ 6,052
Accounting Fees and Expenses ........................... 10,000
Legal Fees and Expenses ................................ 7,500
-------
TOTAL............................................. $23,552
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides generally and in pertinent part that a Delaware corporation may
indemnify its directors and officers against expenses, judgments, fines and
settlements actually and reasonably incurred by them in connection with any
civil, criminal, administrative, or investigative suit or action except actions
by or in the right of the corporation if, in connection with the matters in
issue, they acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interests of the corporation, and in connection
with any criminal suit or proceeding, if in connection with the matters in
issue, they had no reasonable cause to believe their conduct was unlawful.
Section 145 further provides that in connection with the defense or settlement
or any action by or in the right of the corporation, a Delaware corporation may
indemnify its directors and officers against expenses actually and reasonably
incurred by them if, in connection with the matters in issue, they acted in good
faith, in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made with
respect to any claim, issue or matter as to which such person has been adjudged
liable for negligence or misconduct unless the Court of Chancery or the court in
which such action or suit is brought approves such indemnification. Section 145
further permits a Delaware corporation to grant its directors and officers
additional rights of indemnification through bylaw provisions and otherwise, and
to purchase indemnity insurance on behalf of its directors and officers.
The Company's Certificate of Incorporation and Article VII of the Company's
By-Laws provide, in general, that the Company shall indemnify its directors and
officers under the circumstances defined in Section 145.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-1
<PAGE>
Item 16. Exhibits.
Exhibit Number Description of Document
- -------------- -----------------------
5.1 Opinion of Camhy Karlinsky and Stein LLP
23.1 Consent of Camhy Karlinsky and Stein LLP (included in its
opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney (contained on signature page)
II-2
<PAGE>
Item 17. Undertakings.
a) The undersigned, hereby undertakes:
1. To file during any period in which offers and sales are being made, a
post-effective amendment to this Registration Statement:
i. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
ii. To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
iii. To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
2. That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
b. The undersigned Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
c. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public
II-3
<PAGE>
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the Company
hereby certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jackson, State of Wyoming on this 10th day of
February, 1997.
Data Broadcasting Corporation
by /s/ ALAN J. HIRSCHFIELD
-------------------------------
Alan J. Hirschfield
Co-Chairman of the Board and
Co-Chief Executive Officer
by /s/ ALLAN R. TESSLER
-------------------------------
Allan R. Tessler
Co-Chairman of the Board and
Co-Chief Executive Officer
by /s/ MARK F. IMPERIALE
-------------------------------
Mark F. Imperiale
President, Chief Operating Officer
and Chief Financial Officer
(Principal Financial Officer)
by /s/ ANDREW P. SCHLOTTERBECK
-------------------------------
Andrew P. Schlotterbeck
Vice President and Controller
(Principal Accounting Officer)
II-5
<PAGE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints Alan J. Hirschfield and Allan R. Tessler, and each of
them individually, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys in
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them may lawfully do or cause to be done by virtue thereof.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
SIGNATURE TITLE DATE
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Co-Chairman of the Board
/s/ ALAN J. HIRSCHFIELD Co-Chief Executive Officer and February 10, 1997
- ------------------------------ Director
Alan J. Hirschfield (Principal Executive Officer)
- ----------------------------------------------------------------------------------------
Co-Chairman of the Board
/s/ ALLAN R. TESSLER Co-Chief Executive Officer and February 10, 1997
- ------------------------------ Director
Allan R. Tessler (Principal Executive Officer)
- ----------------------------------------------------------------------------------------
President, Chief Operating
/s/ MARK F. IMPERIALE Officer, and Chief Financial February 10, 1997
- ------------------------------ Officer (Principal Financial
Mark F. Imperiale Officer)
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ ANDREW P. SCHLOTTERBECK
- ------------------------------ Vice President and Controller
Andrew P. Schlotterbeck (Principal Accounting Officer)
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ CHARLES M. DIKER
- ------------------------------
Charles M. Diker Director
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ DWIGHT H. EGAN
- ------------------------------
Dwight H. Egan Director
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ DONALD P. GREENBERG
- ------------------------------
Dr. Donald P. Greenberg Director
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ JAMES A. KAPLAN
- ------------------------------
James A. Kaplan Director
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ DAVID R. MARKIN
- ------------------------------
David R. Markin Director
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ HERBERT S. SCHLOSSER
- ------------------------------
Herbert S. Schlosser Director
- ----------------------------------------------------------------------------------------
February 10, 1997
/s/ CARL SPIELVOGEL
- ------------------------------
Carl Spielvogel Director
- ----------------------------------------------------------------------------------------
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Document
- -------------- -----------------------
5.1 Opinion of Camhy Karlinsky and Stein LLP
23.1 Consent of Camhy Karlinsky and Stein LLP (included in its
opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney (contained on signature page)
February 10, 1997
Board of Directors
Data Broadcasting Corporation
1100 Pine Siskin
Jackson, Wyoming 83001
Re: Data Broadcasting Corporation
Registration Statement on Form S-3
Dear Sirs:
You have requested our opinion as counsel for Data Broadcasting
Corporation, a Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-3 being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act") with respect to the issuance by the Company of
up to 3,485,200 shares (the "Shares") of common stock, par value $.01 per share,
of the Company, which includes certain shares (the "Warrant Shares") which are
issuable upon exercise of certain outstanding warrants (the "Warrants").
In rendering the opinions hereafter we have relied upon such
documents and instruments as we have deemed appropriate.
In conducting our examination, we have assumed, without
investigation, the genuineness of all signatures, the correctness of all
certificates, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
copies, and the accuracy and completeness of all records made available to us by
the Company.
The opinions hereinafter expressed are subject to the following
qualifications:
a. Our opinion in paragraph 1 below as to the good standing of the
Company is based solely upon a certificate from public officials.
<PAGE>
Board of Directors
Data Broadcasting Corporation
February 10, 1997
Page 2
b. Our opinions below are limited to the matters expressly set forth
in this opinion letter, and no opinion is to be implied or may be inferred
beyond the matters expressly so stated.
c. We disclaim any obligation to update this opinion letter for
events occurring after the date of this opinion letter.
d. We are members of the Bar of the State of New York. Our opinions
below are limited to the effect of the laws of the State of New York and of the
federal laws of the United States, except with respect to certain limited
matters governed by the laws of the State of Delaware, as to which laws we have
made what we deem to be a reasonable examination and upon reliance on
certificates of public officials in Delaware.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing,
and in good standing under the laws of Delaware.
2. The Shares are duly authorized, legally issued, fully paid and
nonassessable.
3. The Warrant Shares are duly authorized and, when delivered against
payment therefor in accordance with the Warrants, will be, legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required pursuant to Section 7
of the Act or the rules and regulations of the Commission promulgated
thereunder.
<PAGE>
Board of Directors
Data Broadcasting Corporation
February 10, 1997
Page 3
This opinion letter is rendered solely for the benefit of the
addressee. Without our prior written consent, this opinion letter may not be:
(i) relied upon by any other party or for any other purpose; (ii) quoted in
whole or in part or otherwise referred to in any report or document; or (iii)
furnished (the original or copies thereof) to any other party.
Very truly yours,
CAMHY KARLINSKY & STEIN
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
August 9, 1996 appearing on page 25 of Data Broadcasting Corporation's Annual
Report on Form 10-K for the year ended June 30, 1996. We also consent to the
incorporation by reference of our report on the Financial Statement Schedule,
which appears on page 44 of such Annual Report on Form 10-K. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Salt Lake City, Utah
February 10, 1997
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our reports, which include explanatory language on the change in the
Company's method of accounting for income taxes, dated September 13, 1994, on
our audit of the consolidated financial statements and financial statement
schedule of Data Broadcasting Corporation and Subsidiaries as of, and for the
year ended, June 30, 1994. We also consent to the reference to our firm under
the caption "Experts".
Coopers & Lybrand L.L.P.
New York, New York
February 10, 1997
