CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS
EXHIBIT 10.3
SOFTWARE LICENSE, MAINTENANCE
AND DEVELOPMENT AGREEMENT
THIS SOFTWARE LICENSE, MAINTENANCE AND DEVELOPMENT AGREEMENT dated as of
August 26, 1994, between DOW XXXXX TELERATE, INC., a New York corporation, with
an office at One World Financial Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Telerate"), and OMEGA RESEARCH, INC., a Florida corporation with offices
at 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 ("Omega").
W I T N E S S E T H:
WHEREAS, Omega has previously developed the TradeStation software;
WHEREAS, Telerate has requested that Omega modify the TradeStation
software to create the Telerate Version of TradeStation;
WHEREAS, Telerate desires to obtain from Omega, and Omega is willing to
grant to Telerate, an exclusive license to promote, market, sell, sublicense and
distribute the Telerate Version of TradeStation;
WHEREAS, Telerate desires that Omega not, during the term of this
Agreement, modify TradeStation or any Real-Time product to be compatible with
the data feeds of the Telerate Competitors so as to enable the Telerate
Competitors to offer a TradeStation or other Real-Time product similar to, and
competitive with, the Telerate Version of TradeStation;
WHEREAS, Telerate desires that Omega develop, and Omega is willing to
develop, provided that Omega and Telerate mutually agree
as herein provided, Enhancements to the Telerate Version of TradeStation at
Telerate's request from time to time pursuant hereto; and
WHEREAS, Telerate desires that Omega provide, and Omega is willing to
provide to Telerate, certain maintenance and support services for (including
required Modifications to) the Telerate Version of TradeStation.
NOW, THEREFORE, in consideration of the promises and consideration herein
contained, the parties hereby agree as follows:
A. DEFINITIONS.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in Exhibit A.
B. DEVELOPMENT OF THE TELERATE VERSION OF TRADESTATION.
1. DEVELOPMENT. Omega shall, at Omega's sole cost and expense (except as
specifically otherwise provided in this Section B), use commercially reasonable
efforts to modify TradeStation to create the Telerate Version of TradeStation,
in accordance with the Specification, as promptly as is practicable. Omega will
be dedicating substantial amounts of time and effort to the development of the
Telerate Version of TradeStation, and will be incurring substantial costs in
connection with the development of the Telerate Version of TradeStation, and
Omega may be forgoing other business opportunities as a result of the time,
effort and expense that will be dedicated by Omega to the development of the
Telerate Version of TradeStation. Accordingly, although Omega will
2
use commercially reasonable efforts to develop the Telerate Version of
TradeStation as quickly as is practicable, Omega shall, subject to the
provisions of Subsection 9 below, have as much time as is reasonably required by
Omega to complete the development of the Telerate Version of TradeStation and to
correct any Errors or non-conformities revealed by the Quality Assurance
Testing.
2. NOTICE OF COMPLETION. Upon completion of development of the Telerate
Version of TradeStation, Omega shall promptly notify Telerate thereof.
3. TESTING. Within sixty (60) days following the service of the notice of
completion, the initial Quality Assurance Testing shall be completed and the
Material Error List (defined in Subsection 4 below), if any, shall be prepared.
Telerate and Omega shall jointly conduct all Quality Assurance Testing.
4. ACCEPTANCE. If the initial Quality Assurance Testing objectively
demonstrates that the Telerate Version of TradeStation performs in accordance
with the Specification in all material respects, the Telerate Version of
TradeStation shall be deemed Accepted (the date of such demonstration being the
Acceptance Date), and either party shall at the request of the other execute and
deliver a confirmatory letter to the effect that the Telerate Version of
TradeStation has been Accepted. If the initial Quality Assurance Testing reveals
Errors which are not Material Errors, the Telerate Version of TradeStation shall
nevertheless be deemed Accepted and Omega shall commence making appropriate
Modifications to correct such Errors as required by this Agreement. If the
3
initial Quality Assurance Testing reveals any Material Error(s), or objectively
demonstrates that the Telerate Version of TradeStation does not perform in
accordance with the Specification in all material respects, Telerate and Omega
shall, within the sixty (60) day period referred to in Subsection 3 above,
jointly prepare a written list describing all such Material Errors and failures
to conform in all material respects (the "Material Error List"). Omega shall
then commence to correct each of the items contained on the Material Error List.
Promptly following completion of such correction(s) by Omega, Omega shall send a
notice of correction to Telerate, within fifteen (15) days of which the Quality
Assurance Testing shall again be performed to the extent necessary to
demonstrate that the items on the Material Error List have been corrected in all
material respects. In connection with such second Quality Assurance Testing,
Telerate shall not be permitted to assert, for the purposes of preventing the
occurrence of Acceptance, any Material Errors or failures so to conform not
specified in the Material Error List, unless such additional Material Errors or
failures have resulted from the corrections effected by Omega. If, in connection
with such second Quality Assurance Testing, it is demonstrated that all of the
items on the Material Error List have been corrected in all material respects,
the Telerate Version of TradeStation shall be deemed Accepted (the date of such
demonstration being the Acceptance Date). If, in connection with such second
Quality Assurance Testing, it is demonstrated that all of the items on the
Material Error List have
4
not been corrected in all material respects or new Material Errors or failures
so to conform have arisen as a result of the correction(s) effected by Omega,
the parties shall jointly prepare a second Material Error List within the
fifteen (15) day period specified above, and the procedures for correction and
re-testing and determining Acceptance set forth above shall continue to be
followed until Acceptance occurs. Omega shall, in each instance, subject to the
provisions of Subsection 9 below, have as much time as is reasonably necessary
to make each set of corrections required. Telerate shall have no right to make
any use whatever of the Telerate Version of TradeStation prior to Acceptance and
unless Acceptance occurs, except as provided in Section C.1(b) below.
5. TELERATE-PROVIDED MATERIALS. To assist Omega in its development
efforts, Telerate shall, at Telerate's sole cost and expense, provide to Omega
the Telerate-Provided Materials. The Telerate-Provided Materials shall be used
solely to develop, maintain and support the Telerate Version of TradeStation as
provided in this Agreement. Omega acknowledges that any and all of the
Telerate-Provided Materials are, as between Telerate and Omega, the sole
property of Telerate and that all right, title and interest to such
Telerate-Provided Materials is and shall remain with Telerate. Omega further
acknowledges that the Telerate-Provided Materials may contain Confidential
Information (as defined in Section M) of Telerate as well as copyrights of
Telerate. Omega agrees that any Confidential Information included within the
Telerate-Provided Materials is subject to the provisions of Section
5
M, and Omega shall not create any lien or other encumbrance on the
Telerate-Provided Materials.
6. ASSISTANCE. Telerate shall, at Telerate's sole cost and expense,
provide all technical assistance reasonably requested by Omega in connection
with its use of the Telerate-Provided Materials. Omega shall not be deemed in
default hereunder as a result of the failure of Telerate to provide, or any
inadequacies in or of, the Telerate-Provided Materials or assistance of Telerate
in the use thereof. Telerate shall provide to Omega all Telerate-Provided
Materials necessary for Omega to commence development of the Telerate Version of
TradeStation as soon as is reasonably possible following the date of this
Agreement. Should the Telerate-Provided Materials prove to be inadequate,
Telerate shall promptly provide to Omega, at its reasonable request, and at
Telerate's expense, such other equipment, materials and information of or
concerning Telerate as Omega reasonably requires in order to develop the
Telerate Version of TradeStation.
7. EFFECT OF NON-ACCEPTANCE. In the event that the Telerate Version of
TradeStation is not Accepted because of resort by Telerate to the provisions of
Subsection 9 below (or Omega notifies Telerate in writing that, after expending
the efforts described in Subsection 1 above, Omega is unable to develop the
Telerate Version of TradeStation to be in conformance with the Specification in
all material respects and will therefore cease its efforts in respect thereof):
(i) neither party shall have any further obligation whatever to the other party;
(ii) no license of any kind shall be
6
granted to Telerate (and Omega shall retain all rights to the Telerate Version
of TradeStation) and the Pre-Sales License (defined in Section C.1(b) below)
shall at such time be automatically terminated; (iii) each party shall bear its
own costs and expenses in connection with this Agreement; and (iv) Omega shall
return to Telerate, at Telerate's expense, all of the Telerate-Provided
Materials.
8. PREPARATION FOR OPERATIONS; DOCUMENTATION. Telerate shall have a period
of up to sixty (60) days following the Acceptance Date to prepare for the
commencement of selling subscriptions for the Telerate Version of TradeStation.
Accordingly, it is anticipated that the Royalty Commencement Date shall be
approximately sixty (60) days following the Acceptance Date. During such period,
Telerate shall prepare all necessary Documentation. Omega shall provide to
Telerate, promptly following Acceptance, on disk in Microsoft Word format, all
documentation currently available for TradeStation, which Telerate shall then
modify as appropriate to create the Documentation. Omega will provide assistance
as reasonably requested by Telerate in connection with Telerate's preparation of
the Documentation.
9. FAILURE OF ACCEPTANCE TO OCCUR BY DATE CERTAIN. Notwithstanding
anything to the contrary contained in Subsection 4 above, in the event that
Omega fails to deliver the notice of completion referred to in Subsection 2
above by December 31, 1995, and such failure is not due, to any material extent,
to acts, omission or delays on the part of Telerate, Telerate shall have the
7
right to terminate this Agreement at any time after December 31, 1995 and prior
to January 15, 1996, by giving Omega written notice to that effect within such
period. Further, notwithstanding anything to the contrary contained in
Subsection 4 above, in the event that Acceptance does not occur by March 31,
1996, and the failure of Acceptance to occur by such date is not due, to any
material extent, to acts, omissions or delays on the part of Telerate, Telerate
shall have the right to terminate this Agreement at any time after March 31,
1996 and prior to April 15, 1996, by giving Omega written notice to that effect
within such period.
C. LICENSE OF THE TELERATE VERSION OF TRADESTATION.
1. EXCLUSIVE LICENSE.
(a) Effective as of (but not before) the Royalty Commencement Date,
Omega hereby grants to Telerate and its Affiliates an exclusive worldwide
license to promote, market, sell, sublicense and distribute, either directly
and/or through the use of Independent Distributors, the Telerate Version of
TradeStation and all related Documentation (but not any other version of
TradeStation), on a subscription or similar basis requiring periodic payment by
the subscriber, customer or end user, for installation solely in Workstations
and Stand-Alone Units for use by customers such as those Telerate currently
serves. The Telerate Version of TradeStation may be promoted and sold by
Telerate, its Affiliates and Independent Distributors as part of packages
containing other products and services of Telerate. Omega shall provide a master
set of disks of the Telerate Version of
8
TradeStation to Telerate and Telerate, its Affiliates and Independent
Distributors may, subject to the requirements of Section M, copy such disks.
Telerate, its Affiliates and Independent Distributors are not licensed,
authorized or permitted in any manner to use, promote, market, sell, sublicense
or distribute any version of TradeStation or any part thereof or any other
product of Omega or any part thereof other than the Telerate Version of
TradeStation ("Other Products"), and will not reproduce, prepare derivative
works from, modify or display publicly any Other Products. Telerate, its
Affiliates and Independent Distributors are prohibited from using the Telerate
Version of TradeStation with any data feeds other than the current data feeds
generated by Telerate or its Affiliates as specified in Exhibit A-2 to this
Agreement or, provided the necessary Enhancement is made as provided for herein,
any similar data feeds of Telerate or its Affiliates generated in the future, or
any similar data feeds of Telerate or its Affiliates generated in the future
with respect to which an Enhancement is not necessary.
(b) Effective as of the date hereof and ending on the Royalty
Commencement Date (at which time the license granted in Subsection (a) above
shall become operative), Omega hereby grants to Telerate a license in the
Telerate Version of TradeStation for the sole purpose of testing and reviewing,
and following the Acceptance Date, advertising and promoting, the Telerate
Version of TradeStation to the extent necessary and appropriate, in Telerate's
reasonable judgment, to prepare for the sale, sublicensing and
9
distribution of the Telerate Version of TradeStation as permitted herein (the
"Pre-Sales License").
2. RIGHTS RESERVED. It is understood that TradeStation is essentially the
same product as the Telerate Version of TradeStation, and that the development
of the Telerate Version of TradeStation involves no more than modifying the
current version of TradeStation to be compatible with the current data feeds of
Telerate and its Affiliates specified in Exhibit A-2 to this Agreement.
Accordingly, Omega retains, exclusively, and shall enjoy, exclusively, all
rights to promote, market, sell, modify, distribute, license and use, and to
reproduce, prepare derivative works from, modify or perform publicly or display,
TradeStation and any other product of Omega (whether now existing or hereafter
created or developed), or any part thereof, in any manner, in any version, and
for any purpose, and to enter into agreements and arrangements relating thereto
with any Person, which do not violate the restrictions contained in Subsection 3
below.
3. NON-COMPETITION.
(a) BY OMEGA. Omega shall not enter into any agreement or arrangement
with any of the Telerate Competitors to develop and then sell during the term of
this Agreement any Real-Time product which is compatible with data feeds of the
Telerate Competitors of substantially similar quality and content, as to the
types of data, as those currently generated by Telerate. Omega further agrees
that, in the event that Omega learns the specifications of data feeds of any of
the Telerate Competitors of substantially similar
10
CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
quality and content, as to the types of data, as those currently generated by
Telerate, Omega shall not develop a new version of, or modify, TradeStation for
the purpose of making TradeStation compatible with such specifications and then
sell such new or modified version during the term of this Agreement.
(b) PERSONAL NON-COMPETE. Concurrently herewith, Omega shall cause
each of Xxxxxxx and Xxxxxx Xxxx to execute the noncompetition agreement attached
as Exhibit B in order to evidence their respective agreements to be bound
personally by the covenants contained in Subsection 3(a). The failure of either
of Xxxxxxx or Xxxxx Xxxx to comply with such noncompetition agreement shall also
constitute a failure by Omega to comply with the applicable provisions of
Subsection 3(a).
D. ROYALTIES.
1. ROYALTY PAYMENTS. In consideration of Omega's grant of the exclusive
license to Telerate hereunder, effective as of the Royalty Commencement Date,
Telerate shall pay to Omega the following amounts:
(a) EXISTING TELETRAC SUBSCRIBER STAND-ALONE FEE. For as long as an
Existing TeleTrac Subscriber using a Stand-Alone Unit subscribes to, or
otherwise uses, the Telerate Version of TradeStation on such Stand-Alone Unit
(or a Workstation installed in place of that particular Stand-Alone Unit),
Telerate shall pay to Omega ****** per month per Stand-Alone Unit (including
after such time, if any, as such Stand-Alone Unit is converted to a
11
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS
Workstation) for each such Existing TeleTrac Subscriber (the "Existing TeleTrac
Subscriber Stand-Alone Fee").
(b) NEW STAND-ALONE FEE. For as long as a New Stand-Alone Subscriber
subscribes to, or otherwise uses, the Telerate Version of TradeStation, Telerate
shall pay to Omega ****** per month per Stand-Alone Unit for each such New Stand
Alone Subscriber (the "New Stand-Alone Fee").
(c) WORKSTATION FEE. If the Telerate Version of TradeStation is
installed or later used in any Workstation, and the monthly Incremental Fee to a
Workstation Subscriber (viewed separately as to each Workstation) is the amount
specified below, Telerate shall pay to Omega the amount specified below per
month per Workstation for each Workstation Subscriber, for as long as such
Workstation Subscriber subscribes to, or otherwise uses, the Telerate Version of
TradeStation on such Workstation(s) (the "Workstation Fee"):
*************** ***************
--------------- ---------------
*************** ********************************
*************** ********************************
*************** ********************************
*************** ********************************
*************** ********************************
In no event shall the Workstation Fee be less than $70.00 per month per
Workstation.
2. EXCEPTIONS. Omega hereby acknowledges and agrees that no Existing
TeleTrac Subscriber Stand-Alone Fee, New Stand-Alone Fee or Workstation Fee
(collectively, the "Royalty Fee") payment is due with respect to (i) any copy of
the Telerate Version of
12
TradeStation used by any subscriber subject to approval and returned to Telerate
within 90 days following initial delivery to such subscriber (except with
respect to amounts billed to such subscriber which such subscriber is obligated
to pay), (ii) any copy of the Telerate Version of TradeStation provided to a
subscriber on a free, trial basis, up to 90 days, but only with respect to the
free trial time given to such subscriber up to 90 days, (iii) any copy remaining
in the physical possession of, and used directly by, Telerate, its Affiliates or
Independent Distributors solely for review, advertising or promotion of the
Telerate Version of TradeStation, (iv) any copy given to a trade magazine or
similar medium solely for the purposes of review in connection with media
coverage, critique or review by such trade magazine or other medium of the
Telerate Version of TradeStation, or (v) any copies used by Telerate or its
Affiliates or Independent Distributors solely to test, maintain or support the
Telerate Version of TradeStation. Except as provided in this Subsection 2, and
in Subsection 1 above, there shall be no other uses by Telerate, its Affiliates
or Independent Distributors of the Telerate Version of TradeStation, so that,
except as provided in this Subsection 2, there may exist no use whatever of the
Telerate Version of TradeStation for which a Royalty Fee is not payable.
Telerate has informed Omega that it is Telerate's normal business practice to
impose stringent pricing guidelines on the sale and distribution of Telerate
products. Telerate agrees to impose equally stringent pricing guidelines with
respect to the sale,
13
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
sublicensing and distribution of the Telerate Version of TradeStation by
Telerate, its Affiliates and Independent Distributors so that each user of the
Telerate Version of TradeStation constitutes a Workstation or a Stand-Alone Unit
(as applicable) with respect to which a separate Royalty Fee is payable.
3. FIRST YEAR GUARANTY. Telerate hereby agrees that Omega shall be
entitled to receive guaranteed minimum aggregate Royalty Fees (regardless of the
aggregate Royalty Fees computed under Subsection 1 above) for the period
commencing on the Royalty Commencement Date and ending on the first anniversary
of the Royalty Commencement Date (the "First Anniversary") of ****************
************************************* (the "First Year Minimum"), payable in
accordance with Subsection 6 below.
4. SECOND YEAR GUARANTY. Telerate hereby agrees that Omega shall be
entitled to receive guaranteed minimum aggregate Royalty Fees (regardless of the
aggregate Royalty Fees computed under Subsection 1 above) for the period
commencing on the First Anniversary and ending on the second anniversary of the
Royalty Commencement Date (the "Second Anniversary") of *******************
*********** (the "Second Year Minimum"), payable in accordance with Subsection 6
below.
5. THIRD YEAR GUARANTY. Telerate hereby agrees that Omega shall be
entitled to receive guaranteed minimum aggregate Royalty Fees (regardless of the
aggregate Royalty Fees computed under Subsection 1 above) for the period
commencing on the Second
14
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSSIONS.
Anniversary and ending on the third anniversary of the Royalty Commencement Date
(the "Third Anniversary") of ********************************** (the "Third Year
Minimum"), payable in accordance with Subsection 6 below.
6. PAYMENTS; STATEMENTS.
(a) Subject to the following provisions of this Subsection 6, Royalty
Fees are due quarterly and are payable no later than the 60th day following the
end of the quarter to which they relate.
(b) On or before the 30th day following the end of the calendar month
containing the Royalty Commencement Date, Telerate shall pay to Omega an amount
equal to one-twelfth of the First Year Minimum (or, if such month is a partial
month, the pro-rated portion thereof). On or before the 30th day following the
end of the next eleven (11) consecutive calendar months thereafter, Telerate
shall pay to Omega an amount equal to one-twelfth of the First Year Minimum, and
on or before the 30th day following the end of the month containing the First
Anniversary (if by then the entire First Year Minimum has not been paid),
Telerate shall pay to Omega for the portion of such month ending on the First
Anniversary an amount equal to one-twelfth of the First Year Minimum (or, if
such month is a partial month, the pro-rated portion thereof), so that, after
all of such payments are made, Telerate has paid to Omega the entire First Year
Minimum.
(c) On or before the 30th day following the end of the calendar month
containing the First Anniversary, Telerate shall pay
15
to Omega an amount equal to one-twelfth of the Second Year Minimum (or, if such
month is a partial month, the pro-rated portion thereof). On or before the 30th
day following the end of the next eleven (11) consecutive calendar months
thereafter, Telerate shall pay to Omega an amount equal to one-twelfth of the
Second Year Minimum, and on or before the 30th day following the end of the
month containing the Second Anniversary (if by then the entire Second Year
Minimum has not been paid), Telerate shall pay to Omega for the portion of such
month ending on the Second Anniversary an amount equal to one-twelfth of the
Second Year Minimum (or, if such month is a partial month, the pro-rated portion
thereof) so that, after all of such payments are made, Telerate has paid to
Omega the entire Second Year Minimum.
(d) On or before the 30th day following the end of the calendar month
containing the Second Anniversary, Telerate shall pay to Omega an amount equal
to one-twelfth of the Third Year Minimum (or, if such month is a partial month,
the pro-rated portion thereof). On or before the 30th day following the end of
the next eleven (11) consecutive calendar months thereafter, Telerate shall pay
to Omega an amount equal to one-twelfth of the Third Year Minimum, and on or
before the 30th day following the end of the month containing the Third
Anniversary (if by then the entire Third Year Minimum has not been paid),
Telerate shall pay to Omega for the portion of such month ending on the Third
Anniversary an amount equal to one-twelfth of the Third Year Minimum (or, if
such month is a partial month, the pro-rated portion thereof) so
16
that, after all of such payments are made, Telerate has paid to Omega the entire
Third Year Minimum.
(e) Within sixty days following the end of each quarterly period, the
aforesaid monthly payments of the applicable year's minimum guaranteed Royalty
Fees shall be reconciled with the quarterly calculation of Royalty Fees for such
quarterly period, as follows. If the calculation of Royalty Fees for such
quarterly period results in a quarterly Royalty Fee amount which is greater than
an amount equal to one-fourth of the First Year Minimum, Second Year Minimum, or
Third Year Minimum (as applicable), then an amount equal to one-fourth of the
First Year Minimum, Second Year Minimum or Third Year Minimum (as applicable)
shall (assuming the required monthly payments of the applicable guaranteed
minimum Royalty Fees have been made) be deducted from the Royalty Fees
calculated to be payable for such quarterly period, and Telerate shall pay to
Omega, within said sixty (60) day period, the balance.
(f) Telerate shall provide to Omega the following statements with
respect to the calculation of Royalty Fees and the basis therefor:
(i) Within thirty (30) days following the end of each calendar
month (or part thereof, as the case may be) following the Royalty Commencement
Date, Telerate shall provide to Omega a separate statement covering the
subscriptions in effect for the Telerate Version of TradeStation during such
month which have been sold by Telerate or its Affiliates in each of Telerate's
three (3) market regions (the Americas, Europe/Gulf, and Asia/Pacific).
17
Telerate represents and warrants that such three regions encompass all of the
regions in which subscriptions for the Telerate Version of TradeStation shall be
sold.
(ii) Within sixty (60) days following the end of each calendar
month (or part thereof, as the case may be) following the Royalty Commencement
Date, Telerate shall provide to Omega one statement covering the subscriptions
in effect for the Telerate Version of TradeStation during such month which have
been sold by all Independent Distributors of Telerate and its Affiliates.
(iii) Within sixty (60) days following the end of each quarterly
period following, and each anniversary of, the Royalty Commencement Date,
Telerate shall provide to Omega statements similar to those described in (i) and
(ii) above for the quarterly or annual (as applicable) period covered.
(iv) Each such monthly, quarterly and annual statement described
above shall set forth, with respect to each subscription for the Telerate
Version of TradeStation, (1) the subscriber's name, (2) the subscriber's account
number, (3) the product code (i.e., Existing TeleTrac Subscriber Stand-Alone
Unit, new subscriber Stand-Alone Unit or Workstation), (4) the quantity of units
per subscriber (i.e., the quantity of Stand-Alone Units or Workstations, as
applicable), (5) if a Workstation Subscriber, the amount of the Incremental Fee
billed, (6) the Royalty Fee owed (the Incremental Fee and Royalty Fee columns
shall be appropriately subtotaled and totaled in the statements), and (7) any
other
18
information that is reasonably necessary to provide a reasonably detailed
understanding of the basis of the calculation of the Royalty Fees or the amount
due under Subsection 3, 4 or 5, as applicable.
(v) All such statements shall be formatted in a manner that
render such statements reasonably easy to read and understand by a reasonably
sophisticated third party. In the event that Omega is unclear about any items
set forth in a statement or how such items were determined, Telerate shall
assist Omega to understand such items or how they were determined, as the case
may be.
7. RECORDS. Telerate shall maintain complete and accurate records and
files of all documents, matters and transactions which are pertinent or relate
to the Telerate Version of TradeStation and the sale and use thereof by
Telerate, its Affiliates and Independent Distributors (with respect to
Affiliates and Independent Distributors, as more particularly described in
Subsection 8 below), including, without limitation, the number, at all times, of
Workstations and Stand-Alone Units in or from which the Telerate Version of
TradeStation has been installed or is being used, and all information, records
and files necessary to verify the correctness of the calculation and payment of
the Royalty Fees and other payments due Omega hereunder (the "Records").
Telerate shall monitor and keep track of all users of the Telerate Version of
TradeStation, including, without limitation, the number of Workstations and
Stand-Alone Units at all times in or from which
19
the Telerate Version of TradeStation has been installed or is being used, so as
to be capable at all times of computing and paying the appropriate Royalty Fees
and other amounts due hereunder. Each Record shall be maintained and kept by
Telerate for a period of three (3) years following the creation thereof. Omega
shall have the right, upon reasonable prior written notice, at its expense, to
inspect and conduct or cause to be conducted audits of the Records during
Telerate's normal business hours once per year. Telerate shall fully cooperate
in all such inspections and audits. Omega has informed Telerate that it intends
to conduct a full audit of the Records annually. If any inspection or audit of
the Records discloses an underpayment to Omega of five percent (5%) or more of
the amount due, Telerate shall, promptly upon the demand of Omega, reimburse to
Omega the reasonable cost of the inspection or audit. Once a particular period
has been audited by Omega, Omega shall not again have the right to conduct an
audit with respect to such period. All information obtained by Omega and its
accountants from any such inspection or audit will be treated as Confidential
Information as specified in this Agreement and will be used solely for the
purpose of verifying the accuracy of the computation of the amounts due Omega
hereunder and in connection with resolving any dispute arising in connection
therewith.
8. AFFILIATES AND INDEPENDENT DISTRIBUTORS. For all purposes of this
Agreement, including, without limitation, this Section D, it is understood that
Telerate's Affiliates' and Independent Distributors' sale of subscriptions for,
or other
20
sublicensing of, the Telerate Version of TradeStation to subscribers, customers
and other end users as permitted hereunder constitute the basis upon which the
Royalty Fees are computed and paid, as if Telerate were directly entering into
such subscription or sublicensing arrangements with customers, subscribers or
other end users of the Telerate Version of TradeStation, and that such Royalty
Fees shall not be based on the consideration, if any, received by Telerate from
its Affiliates and Independent Distributors for obtaining from Telerate the
right to enter into such subscription or sublicensing arrangements with
customers, subscribers or end users. Telerate shall take such steps as are
necessary to ensure that all transactions made by its Affiliates and Independent
Distributors pertaining to this Agreement are included in the Records, and
within all statements required to be rendered by Telerate under this Agreement,
and that all of such Records are capable of being audited at Telerate's New
Jersey offices upon the exercise by Omega of its inspection and audit rights
hereunder.
E. MARKETING EFFORTS.
1. EFFORTS.
(a) Commencing with the Acceptance Date, Telerate shall use
commercially reasonable efforts to promote, market, sell and/or sublicense the
Telerate Version of TradeStation throughout the world and, without limitation of
the foregoing, shall use commercially reasonable efforts to offer and promote
the Telerate Version of TradeStation to Existing TeleTrac Subscribers; provided,
21
however, that Telerate shall have complete control over, and discretion in
determining, the manner of promoting, marketing, selling and/or sublicensing the
Telerate Version of TradeStation.
(b) In the event that any Person contacts Omega to subscribe for the
Telerate Version of TradeStation or to obtain information about the Telerate
Version of TradeStation, Omega shall refer such caller to Telerate. Omega shall
have no authority to bind Telerate with respect to any such Person or any other
third party.
2. COMPETITION. Subject to the provisions of Section I and Section M,
nothing contained herein shall impair or restrict the right of Telerate, now or
in the future, to develop, procure or market products or services which may be
competitive with the Telerate Version of TradeStation or with any other product
or service offered by Omega, nor obligate Telerate to obtain any other products
or services which may currently or subsequently be offered by Omega, nor prevent
Telerate from entering into similar agreements with other companies, including
those in the same industry as Omega.
3. TRADEMARKS. Telerate shall have the right to market the Telerate
Version of TradeStation under whatever trademarks or service marks it feels are
appropriate and Omega shall have no proprietary rights in the marks used by
Telerate in connection with the Telerate Version of TradeStation or in the
packaging, advertising and promotional materials created by Telerate (except to
the extent the "TradeStation" trademark or another trademark of
22
Omega is used by Telerate in connection therewith). Omega acknowledges that the
names "TeleTrac" and "TeleTrac II" are proprietary to Telerate and Telerate
acknowledges that the names "Omega" and "TradeStation" are proprietary to Omega.
In the event that Telerate desires to use the "TradeStation" name or any
variation thereof in connection with its promotion, marketing or sale of the
Telerate Version of TradeStation, Omega shall, for a ten dollar, one-time
royalty, license the use of such name for such purpose to Telerate for the term
of this Agreement.
F. MAINTENANCE AND SUPPORT SERVICES FOR THE TELERATE VERSION OF TRADESTATION.
1. NOTIFICATION. During the term of this Agreement, each of Telerate and
Omega agrees to promptly notify the other in writing upon the discovery after
Acceptance of any Error (including a Material Error) which is capable of being
consistently duplicated.
2. ERRORS. During the term of this Agreement, upon the discovery of a
Material Error, Omega shall, at no additional charge to Telerate, use
commercially reasonable efforts to correct such Material Error as promptly as
practicable but Omega shall in any event commence to address the problem within
two business days after receiving written notice from Telerate of the discovery
of a Material Error. During the term of this Agreement, upon the occurrence of
any Error other than a Material Error, Omega shall
(a) commence to address the problem within five (5) business days
after receiving notice from Telerate of such Error, and
23
(b) use commercially reasonable efforts to correct such Error as
promptly as practicable in accordance with industry standards. The parties
acknowledge that there are certain Errors which are so insignificant that they
are not addressed until the next version of the subject program is released
("Insignificant Errors"). With respect to such Insignificant Errors, Omega will,
during the term of this Agreement, use commercially reasonable efforts to make
the required Modification at such time as Omega works on the Enhancement that
will result in the next version, if any, of the Telerate Version of TradeStation
being released.
The provisions of (a) and (b) above (together with access to the
Source Code to the extent permitted under the escrow agreement referred to in
Section J) shall constitute Telerate's sole remedy in the event of an Error
which is not a Material Error. In the event that Omega notifies Telerate that it
is unable to correct a Material Error, Telerate's sole remedy shall be to
correct such Material Error and to recover from Omega Telerate's reasonable
costs to correct such Material Error, or, if Telerate cannot correct the
Material Error, Telerate's sole remedy shall be to terminate this Agreement.
Omega shall not be responsible for any Errors or other problems to the extent
caused by Telerate's maintenance and support of the Telerate Version of
TradeStation.
3. TEMPORARY FIX. Upon the occurrence of an Error (including a Material
Error), Omega shall, if full correction of the Error will take an extended
period of time, and if requested by Telerate, and if technologically feasible,
provide a "temporary
24
fix" to alleviate the adverse consequences of the Error to the extent
practicable pending development of the Modification required fully to correct
the Error.
4. TRAINING. Following the Acceptance Date, Omega shall provide to
Telerate up to 480 man-hours (over twelve weeks) of on-site training with
respect to the Telerate Version of TradeStation at Telerate's facilities
worldwide. Omega will provide such training and support at Telerate's reasonable
request at no expense to Telerate except for reasonable actual out-of-pocket
expenses incurred, including, without limitation, airfare, hotel, meal and other
incidental costs and expenses, which will be reimbursed by Telerate within 30
days following submission of appropriate supporting documentation. Omega shall
provide Telerate with additional training at such times as may be mutually
agreed upon for mutually agreed upon fees.
5. PRIMARY SUPPORT. In light of the substantial number of hours of
free-of-charge training Omega will be providing to Telerate as described above
in Subsection 4, Telerate, and not Omega, shall be responsible for providing
primary support with respect to the Telerate Version of TradeStation to
Telerate's customers. Telerate shall use commercially reasonable efforts to
support and maintain the Telerate Version of TradeStation in a good and
professional manner in accordance with industry standards. However, in order to
assist Telerate from time to time in providing such support during the term of
this Agreement, Omega shall (a) make available personnel expertly trained with
respect to the
25
Telerate Version of TradeStation to provide Telerate with remote diagnostic
support and maintenance services from Omega's offices during normal business
hours and (b) outside of normal business hours, by means of remote diagnostic
support and maintenance services provided from Omega's offices, assist Telerate
in providing emergency customer support services on an as-needed basis by making
a telephone number available to Telerate, which Telerate may call after-hours,
following which a representative of Omega will return the call within a
reasonable time. Omega shall, in accordance with industry standards, use
commercially reasonable efforts to maintain appropriate personnel and other
resources sufficient to perform its maintenance and support obligations under
this Agreement. The parties understand that Omega's support obligations are
intended to be secondary to Telerate's, and that Telerate's requests for support
shall be made only after Telerate has exhausted all reasonably available
internal means of solving the problem in question, including consultation with
Telerate's head technicians with respect thereto. It is further agreed that only
head technicians or regional managers of Telerate may contact Omega for
assistance.
G. TELERATE-REQUESTED ENHANCEMENTS.
1. CREATION.
Telerate and Omega anticipate that Telerate may desire that Omega
perform Enhancements from time to time during the term of this Agreement
(including, but not necessarily limited to, an Enhancement to make the Telerate
Version of TradeStation compatible
26
with the data feed currently being used to transmit Telerate financial market
data on which the existing TeleTrac software is used in Stand-Alone Units). In
the event that Telerate desires that an Enhancement be made, Telerate shall
provide Omega with written notice to that effect, which shall include, in as
much detail as is reasonably possible, the functional specification of the
Enhancement requested. Promptly after receipt of such notice, Omega and Telerate
shall endeavor, in good faith, (a) to determine whether the requested
Enhancement will add value to the Telerate Version of TradeStation, and, if so,
whether development of the Enhancement is justifiable and feasible in light of
all applicable circumstances, including the cost of developing the Enhancement,
and (b) assuming that the Enhancement will be valuable, justifiable and feasible
as aforesaid, (i) to mutually agree upon complete specifications for the
Enhancement, (ii) to mutually agree upon time-frames or parameters for the
development and completion of the Enhancement, (iii) to mutually agree upon the
testing procedures that will be used to test the Enhancement for acceptance
purposes, and (iv) to mutually agree upon the costs, fees and other charges
which will be paid by Telerate to Omega for the development of the Enhancement,
including the timing and amount of any applicable progress payments. Provided
that all of the foregoing is agreed upon in a writing signed by the parties,
Omega shall use commercially reasonable efforts to develop and complete the
Enhancement in accordance with the agreement of the parties. In the event that
the Enhancement developed by Omega does not pass the
27
acceptance tests thereof mutually agreed upon, and cannot be corrected by Omega
within a reasonable time thereafter so as to be capable of passing such tests,
Telerate's sole remedy shall be to recover from Omega all amounts paid to Omega
for developing the Enhancement, and Telerate shall have no right to make any use
of, or to sell, sublicense or otherwise distribute or incorporate, such
Enhancement.
2. INCORPORATION. In the event that Omega performs Enhancements, such
Enhancements shall be the property solely of Omega and shall be subject to all
of the provisions contained herein relating to the Telerate Version of
TradeStation generally.
H. OMEGA GENERATED ENHANCEMENTS.
During the term of this Agreement, Omega shall, at its sole cost and
expense (subject to the next sentence), and as promptly as is practicable,
modify the Telerate Version of TradeStation to make the Telerate Version of
TradeStation consistent with any enhancements, improvements or upgrades made to
the TradeStation software generally. To the extent that it is necessary for
Telerate to provide to Omega equipment, materials or information of or
concerning Telerate in order to enable Omega so to modify the Telerate Version
of TradeStation, Telerate shall provide same at its expense and shall, at its
expense, provide to Omega such technical assistance in connection therewith as
Omega may reasonably require.
28
I. TITLE TO TELERATE VERSION OF TRADESTATION.
Telerate acknowledges and agrees that, as between Telerate and Omega,
Omega is and shall remain the sole and exclusive owner of all rights, including
copyright, in TradeStation and the Telerate Version of TradeStation, and all
Enhancements thereof, including, but not limited to, all rights in and to the
"Easy Language" portion of TradeStation and the Telerate Version of
TradeStation, and that the same is or will be protected by applicable copyright
laws. Telerate shall display appropriate copyright notices on all packaging,
documentation, advertising, and promotional materials containing or describing
the Telerate Version of TradeStation to the effect that the Telerate Version of
TradeStation, and any Enhancements thereto, have been created and developed by
Omega. In addition, the sign-on screen message and the "About" box of the
Telerate Version of TradeStation program, as well as all Documentation, shall
conspicuously display the appropriate copyright notice and a legend to the
effect that the Telerate Version of TradeStation and any Enhancements have been
created and developed by Omega.
J. ESCROW ARRANGEMENT.
Within sixty (60) days of execution of this Agreement, the parties will
enter into an escrow agreement, at Telerate's expense, satisfactory in form and
substance to both parties, with an independent third-party escrow agent (whose
fees and expenses will be paid by Telerate) mutually acceptable to the parties,
pursuant to which Omega shall deposit, and the escrow agent shall accept
29
deposit of, the Source Code for the Telerate Version of TradeStation. The escrow
agreement shall provide Telerate with the right to inspect and verify the items
deposited by Omega with the escrow agent, as more fully explained below.
Telerate shall not copy any of the items deposited by Omega with the escrow
agent while the items are deposited with the escrow agent, as more fully
explained below. The escrow agreement shall also require that Omega update the
escrow deposit within ten (10) days of the completion and acceptance of any
Enhancement to the Telerate Version of TradeStation. The escrow agreement shall
also contain the following provisions: (1) that the Source Code, and any
modifications thereto, be provided to the escrow agent on disk; (2) that upon
the initial deposit of, and after each modification to, the Source Code, one
representative of Telerate will be permitted, under the supervision of Omega and
at Omega's premises, to compile the Source Code in order to enable such
representative to generate an executable program for the Telerate Version of
TradeStation (and such representative can take back such executable program to
Telerate for the sole purpose of verifying that the Source Code is complete);
(3) that in no event will such representative be permitted to take any notes, or
to view any screen longer than is absolutely necessary to compile an executable
program, or to remove or take with him or her any materials other than the
compiled executable program; (4) that Telerate shall have access to the escrow
and the Source Code only in the event that (i) an Error (other than an
Insignificant Error) has occurred which Omega has
30
notified Telerate Omega is unable to correct, or an Event of Default has
occurred with respect to Omega based upon its failure to correct an Error (other
than an Insignificant Error), or (ii) Omega is in default under this Agreement
pursuant to Section N.2.(a)(iv) or (v), and Telerate has not terminated this
Agreement as a result thereof and Omega's trustee in bankruptcy has rejected
this Agreement or has refused to assume it; (5) that in order to obtain access
to the escrow and the Source Code, Telerate must deliver to the escrow agent and
to Omega an affidavit, made by a duly authorized officer on behalf of Telerate,
to the effect that one of the conditions in subparagraph (4) above has occurred,
following which Omega shall have the right, exercisable by similar affidavit
delivered to the escrow agent and Telerate, to contest Telerate's right to have
access to the Source Code, in which event the issue shall be resolved in
accordance with a mutually agreed-upon, expeditious dispute-resolution mechanism
set forth in the escrow agreement; (7) that, in the event Telerate gains access
to the Source Code, it may use the Source Code for the sole purpose of
correcting Errors (which, at Omega's election, shall be performed at Omega's
premises under Omega's supervision) or, in the event of an Event of Default with
respect to Omega pursuant to Section N.2.(a)(iv) or (v) (provided that Telerate
does not terminate this Agreement as a result thereof and Omega's trustee in
bankruptcy has rejected this Agreement or
31
has refused to assume it), to correct Errors and to otherwise maintain and
support the Telerate Version of TradeStation for the term of this Agreement
(and, in the event that Omega is in liquidation or has ceased operations, to
make Enhancements during the term of this Agreement, any such Enhancements to be
the property solely of Omega); and (8) that, except as specifically provided in
Section Q.4, the escrow agreement shall automatically terminate, and Telerate
shall have no further right to gain access to or use the Source Code, upon the
expiration or any other termination of this Agreement. As long as Omega executes
the escrow agreement, the failure of the escrow agreement to become effective
(by reason of Telerate's or the escrow agent's refusal to sign it or other cause
beyond Omega's control) shall not affect, diminish or impair any right or
obligation of either party under this Agreement. The provisions of this Section
J contain the only circumstances under which Omega shall ever be obligated to
disclose the Source Code to Telerate. The form of escrow agreement agreed upon
by the parties is attached as Exhibit C. The parties agree that Sun Bank/Miami,
N.A., 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx, is an acceptable escrow agent.
K. REPRESENTATIONS AND WARRANTIES.
1. GENERAL. Each party hereby represents, warrants and covenants that (a)
it has the unrestricted right to enter into and perform this Agreement, (b) it
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has the power to own its assets
32
and properties and to carry on its business as now being conducted and (c) this
Agreement (w) has been duly authorized, executed and delivered, (x) constitutes
the valid and binding obligation of such party enforceable in accordance with
its terms, (y) will not violate, to such party's actual knowledge, any law,
statute, rule or regulation, or court or administrative agency judgment or
decree, and (z) will not conflict with or result in any breach or default of any
of the terms and conditions of any document or any agreement to which such party
is a party.
2. INTELLECTUAL PROPERTY.
(a) Omega hereby represents and warrants that there are no pending or
threatened actions or litigation against Omega regarding intellectual property
infringement or breach of license or maintenance agreements which would
materially and adversely affect Telerate's use of the Telerate Version of
TradeStation, and that Omega has received no written notice, and is not
otherwise aware, of any claim or potential claim against it by any person with
respect to the ownership or use of any intellectual property relating to
TradeStation.
(b) In the event that any of the representations and warranties of
Omega contained in Subsection 1 or 2(a) above are false, and a third party
brings suit against Telerate during the term of this Agreement asserting therein
rights in the Telerate Version of TradeStation or damages or other relief as a
result of an alleged infringing use by Telerate of the Telerate Version of
TradeStation ("Indemnifiable Claims"), Omega will, subject to the
33
provisions and limitations set forth below, assume at its expense the defense of
such suit using counsel reasonably acceptable to Telerate, and indemnify
Telerate against any money damages or costs awarded in such suit which are based
upon the Indemnifiable Claims. Omega's obligations under this Subsection (b)
shall be excused if Telerate fails to provide to Omega prompt notice of any
Indemnifiable Claim asserted or threatened against Telerate, but only to the
extent that the delay in giving notice is prejudicial to Omega or otherwise
prejudices Omega's ability to answer, defend against or settle such
Indemnifiable Claim. Omega shall have exclusive control of the defense of such
lawsuit and all negotiations relating to its settlement, and Telerate shall
assist Omega at Omega's request in all necessary respects in connection with the
defense and/or settlement of the lawsuit. However, Omega's total liability to
incur out-of-pocket costs in the defense of any such suit or suits and to pay
damages or costs awarded in or resulting from any such suit or suits (whether by
judgment, settlement, or otherwise) shall be limited to the amount theretofore
paid to Omega by Telerate under this Agreement, and Telerate shall advance to
Omega any amounts required to be expended by Omega in excess of such limit.
Amounts so advanced shall be credited to future payments due from Telerate to
Omega under this Agreement. The foregoing provisions of this Subsection (b)
state the entire liability of Omega to Telerate in connection with any
third-party lawsuit brought against Telerate for which indemnity pursuant to
this Subsection (b) is available.
34
3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION
K, OMEGA EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT
OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE OR USE, AND MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING TRADESTATION OR THE TELERATE VERSION OF
TRADESTATION, OR THE COPYRIGHTS OF OMEGA THEREIN, INCLUDING, WITHOUT LIMITATION,
THEIR SCOPE OR VALIDITY, OR ANY SYSTEMS, PRODUCTS OR SERVICES BASED THEREON OR
MAKING USE THEREOF, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF RIGHTS OF
THIRD PARTIES.
4. PERFORMANCE. Omega warrants and covenants that (a) the Telerate Version
of TradeStation (i) shall be free from any material defects in material and
workmanship, and (ii) shall perform in accordance with the Specification in all
material respects and (b) the services to be provided to Telerate as specified
herein shall be performed in a good and professional manner in accordance with
industry standards.
L. LIMITATION OF LIABILITY.
1. CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
THIS AGREEMENT, IN NO EVENT SHALL OMEGA BE LIABLE TO TELERATE, REGARDLESS OF THE
TYPE OR NATURE OF THE BREACH OR OTHER ACTION OR OMISSION ASSERTED OR PROVED, FOR
SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, REVENUE, MARKET SHARE OR THE LIKE.
FURTHER, IN NO EVENT SHALL TELERATE BE
35
ENTITLED TO ASSERT AGAINST OR RECOVER FROM OMEGA ANY DAMAGES OTHER THAN ITS
DIRECT, ACTUAL, OUT-OF-POCKET DAMAGES WHICH, IN ALL EVENTS, SHALL BE CAPPED AT
THE AMOUNT OF THE TOTAL PAYMENTS ACTUALLY RECEIVED BY OMEGA AS OF SUCH DATE
PURSUANT TO THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
IN THIS AGREEMENT, BUT EXCEPT AS SET FORTH IN THE LAST SENTENCE OF THIS SECTION
L.1, IN NO EVENT SHALL TELERATE BE LIABLE TO OMEGA, REGARDLESS OF THE TYPE OR
NATURE OF THE BREACH OR OTHER ACTION OR OMISSION ASSERTED OR PROVED, FOR
SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, REVENUE, MARKET SHARE OR THE LIKE.
FURTHER, IN NO EVENT SHALL OMEGA BE ENTITLED TO ASSERT AGAINST OR RECOVER FROM
TELERATE ANY DAMAGES OTHER THAN ITS DIRECT, ACTUAL, OUT-OF-POCKET DAMAGES
(WHICH, IT IS AGREED, WOULD INCLUDE THE RIGHT TO RECOVER FROM TELERATE ANY
AMOUNTS DUE TO BE PAID OMEGA BY TELERATE PURSUANT TO SECTION D OF THIS AGREEMENT
WHICH ARE NOT PAID BY TELERATE, INCLUDING APPLICABLE STATUTORY, PRE-JUDGMENT AND
POST-JUDGMENT INTEREST THEREON). THE FOREGOING LIMITATIONS ON THE LIABILITY OF
TELERATE SHALL NOT APPLY IN ANY RESPECT TO ANY CLAIM OF OMEGA BASED UPON (a)
TELERATE, ITS AFFILIATES OR INDEPENDENT DISTRIBUTORS ENGAGING IN ACTIVITIES
WHICH EXCEED THE SCOPE OF THE LICENSE GRANTED TO TELERATE IN SECTION C, (b) A
BREACH OR VIOLATION BY TELERATE, ITS AFFILIATES OR INDEPENDENT DISTRIBUTORS OF
ANY OF THE PROVISIONS OF SECTION I OR SECTION M, OR (c) ANY MISUSE, IMPROPER OR
UNLAWFUL USE OR MISAPPROPRIATION OR INFRINGEMENT BY TELERATE, ITS AFFILIATES OR
INDEPENDENT DISTRIBUTORS OF ANY
36
TRADEMARK, SERVICE XXXX, COPYRIGHT, TRADE SECRET, OTHER INTELLECTUAL PROPERTY OR
CONFIDENTIAL OR PROPRIETARY INFORMATION OF OMEGA.
2. USE. If a temporary restraining order, preliminary injunction or final
injunction is obtained against Telerate's (or Telerate's customers') use of the
Telerate Version of TradeStation due to an infringement of a patent or
copyright, or an appropriation of a trade secret, Omega will promptly, at its
option and sole expense, either (a) procure for Telerate (and Telerate's
customers) the right to continue using the Telerate Version of TradeStation in
its then current phase of development, or (b) replace or modify the Telerate
Version of TradeStation in its then current phase so that it no longer infringes
such patent or copyright or constitutes an appropriation of a trade secret; or
if Omega is unable to promptly effect (a) or (b) above, then, (c), as Telerate's
sole and exclusive remedy, accept Telerate's return of the Telerate Version of
TradeStation (in which event this Agreement shall be deemed terminated) and
refund to Telerate, subject to the provisions of Subsection 1 above, the full
amount of Telerate's actual damages sustained as a result of the infringement or
appropriation up to the total amount paid by Telerate to Omega to date under
this Agreement.
M. CONFIDENTIALITY; TRADE SECRETS.
The parties recognize and acknowledge that, in connection with this
Agreement, they may disclose to each other confidential or proprietary
information (the "Confidential Information").
37
"Confidential Information" shall mean the terms of this Agreement (as to both
parties), the Telerate-Provided Materials, the Records and the statements to be
rendered by Telerate to Omega pursuant to this Agreement (as to Telerate), the
Source Code, the Object Code, and the Executable Code for TradeStation and the
Telerate Version of TradeStation (as to Omega), as well as any other information
or data received by either party from the other which has been marked
"Proprietary and Confidential" by the disclosing party, or in respect of which
the receiving party has received from the disclosing party specific written
notice of its proprietary and confidential nature. Each party agrees to use the
Confidential Information solely as contemplated under this Agreement and to hold
in confidence and to protect all Confidential Information against disclosure to
unauthorized third parties by using the same standard of care as it applies to
its own confidential or proprietary information. All materials and documents
supplied hereunder shall be and remain the property of the disclosing party, and
the receiving party agrees to limit dissemination of, and access to, such
materials and documents to its personnel having a need to know and agrees to
return or destroy all such materials and documents (including purging any
electronically stored records) upon request of the disclosing party. The above
restrictions shall not apply to information in the public domain or generally
known or which the receiving party can demonstrate has been independently
developed by it prior to disclosure or was otherwise known to the receiving
party prior to disclosure or was rightfully acquired by the
38
receiving party from third parties, or which is approved for release by the
written authorization of the disclosing party, or which is required to be
disclosed by law or regulation (including in connection with any securities
filings, reports or prospectuses made or distributed or required to be made or
distributed by either party). In addition to and without limitation of the
foregoing, (a) Telerate acknowledges and agrees that the Source Code, Object
Code and Executable Code for TradeStation and the Telerate Version of
TradeStation (as same may be enhanced by Omega) contain and will contain trade
secrets of Omega, and Telerate further agrees that it shall not (i) in any way
attempt to discern Omega's trade secrets or proprietary information relating to
TradeStation or the Telerate Version of TradeStation (as same may be enhanced),
including without limitation the Source Codes, Object Codes and Executable Codes
therefor (unless such discernment is not a violation of this Agreement or the
escrow agreement referred to in Section J or a result of disclosures made by
Omega to Telerate), or (ii) disassemble or decompile the subject software, or
perform any like operation commonly known as "reverse engineering" with respect
thereto, and (b) Omega acknowledges and agrees that the current Telerate twin
environment API included in the Telerate-Provided Materials, as same may be
modified, shall not be used by Omega for any purpose other than in connection
with the license granted hereunder; provided, however, that the foregoing
prohibition shall not apply to the current Telerate twin environment API, as
same may be modified, if, but only if, Telerate publishes such current or
39
modified Telerate twin environment API to the information industry in a general
announcement for the purpose of making such API, as same may have been modified,
freely available without charge by Telerate and creating an "open system" by
which computer software publishers may deal directly with Telerate subscribers
whose devices employ such API, as same may have been modified. Omega
acknowledges that Telerate may, during and following the term of this Agreement,
engage in active efforts to develop a Real-Time product which is compatible with
its data feeds that performs many of the same, or similar, functions as those
performed by the Telerate Version of TradeStation (as same may be enhanced
pursuant to this Agreement). Omega recognizes and agrees that the general
functionality (i.e., system testing, system automation, indicators, alerts on
indicators, system optimization, generation of commentary on the interpretation
of an indicator, and color coding of bar charts based upon user-defined
criteria, use or display of bar charts, candlestick charts, point and figure
charts, market profiles, multiple bar charts on a screen, bar charts and studies
on a screen, sizable chart windows, printing functions such as chart printing
(WYSIWYG), data printing (tabular printing), automated printing and full
historical printing (all data in history), and functions and displays such as
password-based security, password-based permissioning, display of quotations and
news with charts, automatic display of system alerts and alarms, storage of
multiple pages (trade plans) in memory (RAM or on disk), retrieval of historical
data from offsite data source (manual and automatic), saving charts and data to
disk, sharing charts and data over
40
network, user editing of historical data and user-defined data items) performed
and to be performed by TradeStation and the Telerate Version of TradeStation,
respectively, as between Omega and Telerate, do not constitute trade secrets of
Omega. However, the parties acknowledge that the particular ways in which
TradeStation and the Telerate Version of TradeStation implement, present and
offer (or will implement, present and offer, as the case may be) such
functionality may contain protectable copyrights and trade secrets of Omega.
N. TERM; EVENTS OF DEFAULT; AND TERMINATION.
1. TERM; OPTION TO EXTEND TERM. The term of this Agreement shall commence
on the date hereof and, provided that Acceptance occurs, shall, subject to each
of the early termination events specified in this Agreement, terminate on the
Third Anniversary. Subject to the early termination events specified in this
Agreement, Telerate shall have an option to extend the term of this Agreement
for one additional year, so that its expiration date is the fourth anniversary
of the Royalty Commencement Date (the "Extension Option"). In order to exercise
the Extension Option, Telerate must give Omega written notice to that effect no
later than the 180th day following the Second Anniversary. If the Extension
Option is exercised by Telerate, it shall be irrevocable, and, (a) this
Agreement shall continue in full force and effect, subject to the early
termination events specified herein, until the fourth anniversary of the Royalty
Commencement Date (the "Fourth Anniversary"), (b) Telerate agrees that Omega
shall be entitled to receive guaranteed minimum aggregate Royalty Fees
(regardless of
41
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMSSION. ASTERSIKS DENOTE SUCH OMISSIONS.
the aggregate Royalty Fees computed under Section D.1) for the period commencing
on the Third Anniversary and ending on the Fourth Anniversary of the greater of
(i) ********************************* and (ii) the actual aggregate Royalty Fees
payable for the period commencing on the Second Anniversary and ending on the
Third Anniversary (the "Fourth Year Minimum"), (c) the Fourth Year Minimum shall
be paid to Omega in monthly installments in the same manner as the first three
year's guaranteed minimums are payable, subject to quarterly reconciliation
against the calculation of actual Royalty Fees in the same manner as set forth
in Section D.6, and (d) Telerate shall continue to supply statements to Omega
and maintain Records with respect to such fourth year in the same manner and to
the same extent as it is required to do so with respect to the first three
years, as set forth in Section D.
2. EVENTS OF DEFAULT.
(a) Any one or more of the following shall constitute an Event of
Default hereunder:
(i) Telerate fails to pay, when due, any amount required to be
paid by it under Section D of this Agreement, if such payment is not made within
thirty (30) days after Omega gives Telerate notice of such failure to pay;
(ii) (A) Omega fails materially (it being understood that if the
agreement or obligation in question is already subject to a materiality
standard, the use of the word material here shall not further alter such
standard) to comply with or perform any agreement or obligation hereunder (or
either Xxxxxxx Xxxx or Xxxxxx
42
Xxxx, in cases where he is not acting on behalf of Omega, takes any action or
enters into any transaction which would, if done by or on behalf of Omega,
constitute a material failure to comply with or perform an agreement or
obligation of Omega hereunder) if such failure is not remedied on or before the
thirtieth day after notice of such failure; provided, however, that, in the
event such failure cannot, through the use of commercially reasonable efforts,
reasonably be remedied within such 30-day period, if Omega commences to remedy
the failure within said 30-day period and diligently proceeds with such remedy
until it is completed, no Event of Default shall be deemed to have occurred, or
(B) Telerate fails materially (it being understood that if the obligation or
agreement in question is already subject to a materiality standard, the use of
the word material here shall not further alter such standard) to comply with or
perform any agreement or obligation hereunder (other than failure to make a
payment, which is covered by Subsection (i) above) if such failure is not
remedied on or before the thirtieth day after notice of such failure; provided,
however, that, in the event such failure cannot, through the use of commercially
reasonable efforts, reasonably be remedied within such 30-day period, if
Telerate commences to remedy the failure within said 30-day period and
diligently proceeds with such remedy until it is completed, no Event of Default
shall be deemed to have occurred;
(iii) a representation or warranty made or deemed to have been
made hereunder by Omega or Telerate (as the case may
43
be) proves to have been false or misleading in any material respect when made
and the effects of the materially false or misleading representations and
warranties are material and adverse to the other party and such effects cannot
be cured or eliminated within a reasonable period of time after notice thereof;
(iv) Omega or Telerate (as the case may be) (A) commences a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency,
corporation or other similar law now or hereafter in effect that authorizes the
reorganization or liquidation of such party or its debts or the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or (B) shall consent to any such relief or to
the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or (C) makes a general assignment
for the benefit of creditors, or (D) admits in writing its inability to pay its
debts as they become due, or (E) takes any corporate action to authorize any of
the foregoing; or
(v) An involuntary case or other proceeding shall be commenced
by persons that are not bound by this Agreement against Omega or Telerate (as
the case may be) seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
44
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) calendar days;
or an order is entered by a court of competent jurisdiction affecting
substantially all of the property or affairs of Omega or Telerate (as the case
may be) under bankruptcy, insolvency or other similar laws as now or hereafter
in effect and such order shall remain undismissed and unstayed for a period of
sixty (60) calendar days.
(b) Upon the occurrence of an Event of Default described in Section
N.2(a)(i), in addition to any other rights and remedies available to Omega
(including, without limitation, the right to recover all amounts not paid,
together with statutory, pre-judgment and post-judgment interest thereon), Omega
shall be entitled, in its sole discretion, to elect to terminate this Agreement
and the license granted to Telerate hereunder immediately upon written notice to
Telerate.
(c) Subject to the provisions of Section F.2 and Section L, upon the
occurrence of any other Event of Default by either party, in addition to any
other rights and remedies available to the non-defaulting party, the
non-defaulting party shall be entitled, in its sole discretion, to terminate
this Agreement upon thirty (30) days' prior written notice to the defaulting
party.
(d) REMEDIES UPON ORDER FOR RELIEF BEING ENTERED UNDER BANKRUPTCY
CODE. If an Event of Default described in Section N.2(a) (iv) or (v) shall have
occurred with respect to Omega, and an order for relief pursuant to 11 U.S.C.
/section/101, ET SEQ., as amended
45
or supplemented from time to time (the "Bankruptcy Code") shall have been
entered, Telerate may without any further action or notice and at its sole
discretion, either (i) deem this Agreement to be terminated effective as if such
termination had occurred immediately before the date of entry of any such order
for relief; (ii) seek to obtain upon an expedited basis such approval from a
court of competent jurisdiction as may actually be necessary and required to
effect immediate termination of this Agreement; or (iii) seek to obtain upon an
expedited basis such approval from a court of competent jurisdiction as may
actually be necessary and required to compel Omega or its trustee-in-bankruptcy
to assume or reject this Agreement. Each of the parties hereto specifically
agrees that (a) each of the termination provisions contained in this Section has
been specifically bargained for, (b) each party has consented to termination of
this Agreement at the time and in the manner authorized by this Section and (c)
neither party shall in any way attempt or assist any other party that may
attempt to delay, oppose or avoid any such termination of this Agreement.
(e) RIGHTS AND OBLIGATIONS OF PARTIES PENDING ASSUMPTION OR REJECTION
OF THIS AGREEMENT IN THE EVENT OF BANKRUPTCY OF OMEGA. In the event of the
commencement of a case under the Bankruptcy Code by or against Omega, and during
the period prior to the entry of an order directing or authorizing Omega or its
trustee-in-bankruptcy to assume, reject or otherwise terminate this Agreement,
Telerate may exercise its rights under Section 365(n) of the Bankruptcy Code, as
such section may be amended or supplemented
46
from time to time, and the exercise of such rights or resort to any remedies
provided thereunder shall not be deemed the exclusive rights and/or remedies
available to Telerate, but Telerate is entitled to obtain any relief to the
fullest extent provided by applicable bankruptcy or nonbankruptcy law (except as
limited by this Agreement).
(f) RIGHTS AND OBLIGATION OF PARTIES AFTER REJECTION OF THIS
AGREEMENT IN THE EVENT OF BANKRUPTCY OF OMEGA. Omega specifically acknowledges
and agrees that, in addition to the rights and remedies of Telerate under
Section 365(n) of the Bankruptcy Code, as such section may be amended or
supplemented from time to time, the rights and remedies of Telerate set forth in
this Section have been specifically bargained for and Omega will not attempt to
delay or oppose Telerate's exercise of such rights:
(i) Omega or its trustee-in-bankruptcy shall allow Telerate
without any interference by Omega or its trustee-in-bankruptcy to exercise all
of its rights, including rights to prosecute or complete pending applications
for trademarks and service marks for the Telerate Version of TradeStation or to
seek other necessary governmental action and to take such actions as may be
necessary to prevent infringement on, or violation of, any exclusive rights
granted to Telerate by this Agreement;
(ii) In the event that Omega's trustee-in-bankruptcy rejects
this Agreement or refuses to assume it (and Telerate does not elect to terminate
this Agreement), Telerate shall be entitled to have access to and use, and Omega
shall not
47
interfere with Telerate's right to use, the Source Code, Object Code, Executable
Code and Documentation relating to the Telerate Version of TradeStation and any
Enhancements thereof in accordance with this Agreement, and, as to the Source
Code, in accordance with, and as limited by, the provisions of SECTION J hereof
and the escrow agreement to be executed pursuant thereto; and
(g) The parties further acknowledge and agree that all provisions
relating to the escrow arrangement constitute a supplementary agreement as such
term is used in Section 365(n) of the Bankruptcy Code.
(h) The provisions set forth in Sections N.2(c) through (g) shall be
deemed to be material nonseverable parts of the Agreement.
3. EFFECT ON SUBSCRIBERS. Upon termination of this Agreement for any
reason, including, without limitation, the expiration hereof, Telerate may not
enter into any new subscriptions or other agreements or arrangements for the use
of the Telerate Version of TradeStation, or agree to increase, or increase, the
number of Stand-Alone Units, Workstations or users with respect to any
subscriptions. Any existing subscriptions, as of the date of termination, may be
continued until the expiration of such subscriptions and renewed (provided that
no additional users, Stand-Alone Units or Workstations are added) pursuant to
the terms of such subscriptions, and Telerate shall be obligated to continue to
pay, and Omega will continue to receive, Royalty Fees for, and other amounts due
hereunder in respect of or based upon,
48
such existing subscriptions for as long as the Telerate Version of TradeStation
is in use. No minimum royalty guarantees shall be in effect following the Third
Anniversary unless the Extension Option is exercised. At termination, Telerate
shall provide to Omega a complete and accurate list of all then current
subscribers and customers for the Telerate Version of TradeStation, which shall,
for each subscriber and customer, set forth the expiration date of the
subscription (or indicate that it is renewable on a periodic basis, identifying
the period, if appropriate) and which shall include all other information
required to be included in the statements required to be delivered by Telerate
under Section D.6 hereof. Such statements shall continue to be rendered on a
monthly, quarterly and annual basis (in the manner set forth in Section D.6)
until all subscriptions for, and uses of, the Telerate Version of TradeStation
have ceased. The expiration or other termination of this Agreement shall not
affect or impair Omega's audit and inspection rights granted hereunder, or
Telerate's duties to maintain the Records, which shall continue at least until
all subscriptions for and uses of the Telerate Version of TradeStation have
terminated and a full and final audit has been conducted by Omega, and until all
disputes, if any, concerning payment of Royalty Fees and other amounts due
hereunder have been fully and finally resolved.
O. NOTIFICATION OF OFFER.
If, at any time during the term of this Agreement, Omega receives a bona
fide offer that it is willing to accept from a non-
49
Affiliated, unrelated third party who is not an employee of Omega to (i) acquire
Omega or substantially all of Omega's assets or (ii) acquire a substantial
portion of the stock or assets of Omega, or Omega enters into serious and
substantial negotiations with respect thereto, Omega shall notify Telerate in
writing of the fact that it has received such an offer or has commenced such
serious negotiations. It is understood that no such notification is required to
be given by Omega in connection with any public offering of its capital stock.
Omega is under no obligation, however, to afford to Telerate the right to match
or to make any offer, to enter into any negotiations of any kind with Telerate,
or to disclose to Telerate the nature or terms of the offer or negotiations, the
identity of the offeror or party with whom Omega is negotiating, or any other
fact or circumstance of or relating to the offer or the negotiations. Any such
notice given by Omega under this Section O shall be held in strict confidence by
Telerate.
P. NON-SOLICITATION.
To the fullest extent permitted by law, Omega agrees not to solicit the
employment of or employ any employee of Telerate or any of its Affiliates, and
Telerate agrees not to solicit the employment of or employ any employee of Omega
or any of its Affiliates, in each case, during the period commencing the date
hereof and ending on the date that is twenty-four (24) months following the
expiration or termination of this Agreement;
50
provided, however, in no event shall such period of restriction terminate prior
to June 30, 1998.
Q. MISCELLANEOUS.
1. NOTICES. All notices, requests and other communications hereunder shall
be in writing and shall be delivered in person or sent by commercial overnight
courier (such as Fedex) or certified mail, return receipt requested:
(a) If to Telerate, to:
Dow Xxxxx Telerate, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
with a copy to:
Dow Xxxxx Telerate, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
(b) If to Omega, to:
Omega Research, Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx and Xxxxxx Xxxx
with a copy to:
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
2500 First Union Financial Center
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.,
or to such other addresses as may be stipulated in writing by the parties
pursuant hereto. Unless otherwise provided, notice shall
51
be effective on the date it is officially recorded as delivered by return
receipt, the courier service, or equivalent.
2. FORCE MAJEURE. No party hereto shall be deemed to be in default of any
provision of this Agreement, or in default for failures in performance,
resulting from acts or events beyond the reasonable control of such party (such
acts shall include but not be limited to, acts of God, or civil or military
authority, civil disturbance, war, strikes, fire, lightning, hurricanes,
tornado, power outages, or other similar catastrophes or events).
3. AMENDMENT. This Agreement may not be amended except by written
instrument executed by each of the parties hereto.
4. BINDING AGREEMENT; ASSIGNMENT.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the parties and the parties' respective successors at law and
permitted assigns. Neither this Agreement nor any obligations or duties
hereunder may be assigned or delegated by any party hereto without the prior
written consent of the other party; provided that each party shall be entitled
without such consent to assign its rights and obligations hereunder to any
Affiliate or in connection with a sale (direct or indirect, by merger, sale of
capital stock or otherwise) of all or substantially all of its assets; provided,
however, if Omega directly or indirectly (by merger, sale of capital stock or
otherwise) sells all or substantially all of its assets to one of the Telerate
Competitors, Telerate may, within the thirty (30) day period following written
notice from Omega that Omega has signed a
52
contract to sell, or has sold, substantially all of its assets (directly or
indirectly, by merger, sale of capital stock or otherwise) to a Telerate
Competitor, terminate this Agreement by giving written notice to Omega to that
effect within such thirty (30) day period. Termination of this Agreement in this
circumstance shall occur and be effective on the earlier of (i) the date such
notice of termination is given and (ii) the Third Anniversary.
(b) In the event, but only in the event, that Telerate so terminates
this Agreement following said notice of sale of Omega to a Telerate Competitor,
(i) Telerate shall have a non-exclusive one-year license to continue to sell new
subscriptions for the Telerate Version of TradeStation as permitted hereunder
(but the non-competition obligations of Omega, Xxxxxxx Xxxx and Xxxxxx Xxxx
shall, as of the date of termination, automatically cease and be of no further
force or effect), (ii) such non-exclusive license shall terminate on the first
anniversary of the date of termination of this Agreement, (iii) it is understood
that Omega shall, in this circumstance of termination only, continue to be bound
by its maintenance and support obligations under Section F, but shall not
continue to be bound by any obligation to develop any Enhancements for the
Telerate Version of TradeStation or to perform any other action or obligation
under this Agreement, (iv) Telerate's obligation to pay Royalty Fees (except for
a guaranteed minimum, which shall not apply to this one-year non-exclusive
license), render statements and maintain Records shall continue to be in
53
force; and (v) the escrow agreement described in Subsection J shall, as
contemplated in the form of escrow agreement attached, be extended for such
additional year.
(c) No parties other than Telerate and Omega, and their respective
successors at law and permitted assigns (provided that such successors or
permitted assigns have expressly assumed this Agreement in writing), shall have
any right or standing to assert or enforce any right or obligation under this
Agreement.
5. HEADINGS. The headings of sections and paragraphs herein, and the
"WHEREAS" clauses contained on pages 1 and 2 of this Agreement, are included for
convenience of reference or context and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
6. SURVIVAL. The provisions of this Section and of SECTIONS X, X.0, X, X,
X, X.0, X, X AND P ONLY shall survive any termination or expiration of this
Agreement.
7. GOVERNING LAW. This Agreement shall be controlled, construed and
enforced in accordance with the laws of the State of New York, other than laws
relating to conflicts of law.
8. SEPARABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be held to be invalid
or unenforceable, the remainder of the Agreement, or the application of such
provision to persons or circumstances as to which it is not held to be invalid
or unenforceable, shall not be affected thereby, and each provision
54
shall be valid and be enforced to the fullest extent permitted by law.
9. ENTIRE AGREEMENT. This Agreement, together with all Exhibits, contains
the entire understanding of the parties and supersedes all previous and
contemporaneous verbal and written agreements.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
11. CONSTRUCTION. The parties acknowledge and confirm that this Agreement
and each of the Exhibits hereto have been heavily and thoughtfully negotiated by
the parties over an extended period of time and that any ambiguities contained
herein or therein shall therefore not in any manner be construed against the
draftsman or alleged draftsman hereof or thereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed
and delivered this Agreement as of the day first above written.
DOW XXXXX TELERATE, INC. OMEGA RESEARCH, INC.
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXXXX XXXX
----------------------- ------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx Xxxx
Title: President Title: President
55
EXHIBIT INDEX
EXHIBIT DESCRIPTION
------- -----------
A Definitions
A-1 Description of Telerate-
Provided Materials
A-2 Description of Data Feeds
for Telerate Version of
TradeStation
B Noncompetition Agreement
of Xxxxxxx Xxxx and
Xxxxxx Xxxx
C Form of Escrow Agreement
D QA Test Script
56
EXHIBIT A
DEFINITIONS
ACCEPTANCE; ACCEPTED:
When the Telerate Version of TradeStation has successfully completed
Quality Assurance Testing as described in Section B of the Agreement.
ACCEPTANCE DATE:
The date Telerate has Accepted or is deemed to have Accepted the Telerate
Version of TradeStation as described in Section B of the Agreement.
AFFILIATE:
With respect to any individual or entity, any other individual or entity,
directly or indirectly, through one or more intermediaries, Controlling,
Controlled by, or under common Control with the original individual or
entity.
CONTROL:
The possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of an entity, whether through
the ownership of any securities, by contract or otherwise.
DOCUMENTATION:
All existing written descriptive and instructional information published
by Omega for use by TradeStation customers relating to the use and
operation of TradeStation Version 3.5, as same shall be appropriately
modified by Telerate pursuant to this Agreement to become the
documentation for the Telerate Version of TradeStation.
ENHANCEMENT:
Any improvement or upgrade to the Telerate Version of TradeStation,
whether minor or substantial.
ERROR:
Any failure of the Telerate Version of TradeStation to perform the
applicable functions or conform to the Specification.
EXECUTABLE CODE:
With respect to TradeStation or the Telerate Version of TradeStation, a
set of machine readable instructions that has been assembled or compiled
from the Source Code and Object Code and linked and that can operate on
the appropriate computer without further compiling, assembling or linking.
EXISTING TELETRAC SUBSCRIBER:
All subscribers of Telerate, its Affiliates or Independent Distributors
which are using the existing TeleTrac software in a Dow Xxxxx Telerate
Stand-Alone Unit at the Royalty Commencement Date; provided, however, that
such a subscriber is considered an Existing TeleTrac Subscriber (for
purposes of determining whether an Existing TeleTrac Subscriber
Stand-Alone Fee, as opposed to one of the other Royalty Fees, is payable)
only with respect to the number of Stand-Alone Units of such subscriber
which use the existing TeleTrac software at the Royalty Commencement Date
(whether or not said existing Stand-Alone Units are converted or later
converted to Workstations -- i.e., the Existing TeleTrac Subscriber
Stand-Alone Fee shall continue to be payable in respect of such existing
units, even after their conversion, if any, to Workstations); provided
further, however, that, any additional Stand-Alone Units or Workstations
of such subscriber which receive the Telerate Version of TradeStation
shall constitute New Stand-Alone Units or Workstations (as applicable),
with respect to which such subscriber shall be considered a New
Stand-Alone Subscriber and/or Workstation Subscriber (as applicable) and
in respect of which New Stand-Alone Fees and/or Workstation Fees (as
applicable) are payable.
INCREMENTAL FEE:
With respect to each individual use of the Telerate Version of
TradeStation for which a Royalty Fee is payable, the gross amount charged
by Telerate in United States Dollars to a Telerate subscriber pursuant to
the subscription for such use of the Telerate Version of TradeStation
(i.e., per Workstation), not including sales and similar taxes, if any,
added to the price thereof which are remittable by Telerate. The
Incremental Fee shall not be reduced by royalties or other amounts or
consideration paid to Independent Distributors or others or any other
amounts except for said taxes. If, with respect to any subscription, the
Telerate Version of TradeStation is bundled with, sold together with, or
incorporated into, one or more other computer programs or products of
Telerate (a "bundle") for one combined price (a "bundled selling price"),
for the purposes of calculating the
2
Incremental Fee hereunder: the separate list price of each product
included in the bundle (including the list price for the Telerate Version
of TradeStation) will be added together (the "non-bundled combined
price"); if the non-bundled combined price equals the bundled selling
price, the Incremental Fee will be the list price for the Telerate Version
of TradeStation; if the non-bundled combined price exceeds the bundled
selling price, each list price included in the non-bundled combined price
shall be reduced PRO RATA until the non-bundled combined price equals the
bundled selling price, and the Incremental Fee shall equal the list price
for the Telerate Version of TradeStation as so reduced on such PRO RATA
basis.
INDEPENDENT DISTRIBUTORS:
Unaffiliated entities who distribute Telerate products and services on
behalf of Telerate on a commission or royalty basis.
MATERIAL ERROR:
Any Error which materially impairs the subscriber's ability to use as a
whole the Telerate Version of TradeStation or any Error which
substantially impairs the value of such program for the typical end user.
MODIFICATION:
A change or addition to the Telerate Version of TradeStation that
establishes conformity of the Telerate Version of TradeStation to the
Specification, or a procedure or routine that eliminates the practical
adverse effect on Telerate's subscribers of such a nonconformity which was
observed in the regular operation of the Telerate Version of TradeStation
(and is capable of being consistently duplicated).
NEW STAND ALONE SUBSCRIBER:
New Stand Alone Subscriber shall mean any subscriber who is not an
Existing TeleTrac Subscriber who subscribes to the Telerate Version of
TradeStation from Telerate or its Affiliates or Independent Distributors,
as, when and so long as used or to be used pursuant to such subscription
on Stand Alone Unit(s).
OBJECT CODE:
With respect to TradeStation or the Telerate Version of TradeStation, a
set of machine readable instructions generated by the compilation of the
Source Code.
3
PERSON:
Any entity or individual.
QA TEST SCRIPT:
The test script to be used to conduct the Quality Assurance Testing, a
copy of which is attached as Exhibit D, which, if capable of being
followed in all material respects, will establish the conformance of the
Telerate Version of TradeStation to the Specification. Within thirty (30)
days following the date of the Agreement, the parties shall jointly
develop a more detailed QA Test Script, which, once completed and agreed
upon by the parties, shall serve as the QA Test Script for all purposes of
the Agreement. The parties agree to cooperate in good faith to develop
jointly and agree upon such more detailed QA Test Script within said
30-day period. If such more detailed QA Test Script is not jointly
developed and agreed upon within said 30-day period, the QA Test Script
attached as Exhibit D shall serve as the QA Test Script for all purposes
of the Agreement. The purpose of developing a more detailed QA Test Script
is not to expand the functionality that is to be developed or demonstrated
by the Telerate Version of TradeStation (as described in Exhibit D), but
rather to specify in more detail the testing procedures that will be used
to determine whether the more general guidelines set forth in Exhibit D
have been met.
QUALITY ASSURANCE TESTING:
The testing of the Telerate Version of TradeStation in accordance with the
QA Test Script to determine whether the Telerate Version of TradeStation
conforms to the Specification, and each such subsequent testing performed
prior to Acceptance to determine whether or not Acceptance has occurred,
as described in Section B.
REAL-TIME:
With respect to the TradeStation program or any similar program, software
that receives and displays data on a "real-time" or instantaneous basis,
and which is not delayed in any fashion, or which displays data on no
longer than a 10-minute delay basis.
ROYALTY COMMENCEMENT DATE:
The earlier of (i) sixty (60) calendar days after the Acceptance Date, and
(ii) the date the first subscription for or use of the Telerate Version of
TradeStation is received or
4
occurs for which a Royalty Fee is payable pursuant to the
Agreement.
SELL; SALE; SELLING:
The terms "sell", "sale" and "selling", as they relate to the exploitation
by Telerate of its rights under this Agreement, mean the sublicensing by
Telerate, its Affiliates and Independent Distributors (on behalf of
Telerate or Telerate's Affiliates) pursuant to this Agreement of the
Telerate Version of TradeStation product to subscribers, customers and
other end-users under subscriptions or similar arrangements providing for
periodic payment therefor by such subscribers, customers and other end
users, and do not refer to the sale or disposition, as such words are
commonly understood, of the Telerate Version of TradeStation or rights
therein.
SOURCE CODE:
With respect to TradeStation or the Telerate Version of TradeStation, the
form of code which is human readable and which can be translated by a
compiler or assembler for execution on a computer. The Source Code will be
in a language that is customarily understood by competent computer
programmers (e.g., C, C++, Assembly Language).
SPECIFICATION:
Specification, as it relates to the Telerate Version of TradeStation,
means that the Telerate Version of TradeStation will have the same
functionality in all material respects as TradeStation Version 3.5, as
reflected in the documentation for TradeStation Version 3.1 which has been
annotated by Omega to describe the two new features Version 3.5 will
contain (i.e., commentary on the interpretation of analysis techniques
(marketed by Omega as "fuzzy logic") and "trading system optimization"),
copies of which have been delivered to Telerate.
STAND-ALONE UNIT:
A Stand-Alone Unit is one computer that will run the Telerate Version of
TradeStation but will not be linked by network to any other computers.
However, (i) if such computer is providing access to the Telerate Version
of TradeStation on more than one screen, each such screen shall constitute
a separate Stand-Alone Unit, and (ii) if any such screen may be accessed
by more than one keyboard, each additional keyboard shall constitute a
separate Stand-Alone Unit.
5
TELERATE COMPETITORS:
Bloomberg, Reuters, Xxxxxx-Xxxxxx, Commodity Quote Graphics and such
parties' Affiliates and successors, whether currently existing or existing
in the future.
TELERATE-PROVIDED MATERIALS:
The equipment and materials provided to Omega to develop the Telerate
Version of TradeStation as specified in Exhibit A-1 hereto.
TELERATE VERSION OF TRADESTATION:
A version of TradeStation that is generally compatible with the data feeds
generated by Telerate and its Affiliates (such data feeds are specified in
Exhibit A-2 hereof) and, assuming no Enhancement is required, similar data
feeds of Telerate and its Affiliates which may be generated during the
term of the Agreement.
TELETRAC:
The DOS software developed by Telerate to analyze price data and marketed
as TeleTrac Version 2.4 for use solely on Stand-Alone Units.
TRADESTATION:
The technical analysis program that operates in Real-Time as more fully
described in the definition of "Specification" above.
WORKSTATION:
A Workstation is one computer receiving or able to access Telerate data
(regardless of what software programs are being used in connection with
such data), in or from which the Telerate Version of TradeStation would
reside or could be accessed either alone or with other applications and
utilities, and which would remain linked by a network with one or more
other computers which will also have Telerate data. However, (i) if such
computer is providing access to the Telerate Version of TradeStation on
more than one screen, each such screen shall constitute a separate
Workstation, and (ii) if any such screen may be accessed by more than one
keyboard, each additional keyboard shall constitute a separate
Workstation. A single network may have many Workstations.
6
WORKSTATION SUBSCRIBER:
Any subscriber which subscribes to the Telerate Version of TradeStation
from Telerate or its Affiliates or Independent Distributor, as, when and
so long as used or to be used pursuant to such subscription on one or more
Workstations.
7
EXHIBIT A-1
DESCRIPTION OF TELERATE-PROVIDED MATERIALS
To be delivered and fully installed at Omega's premises:
1. 2 fully functional TeleTrac units (hardware, software and fully enabled
data feed), fully enabled as to capability with Telerate data available through
the data feed.
2. 1 Twin Server (hardware, software and all applicable data feeds).
3. Software and enablement for ten workstation sites running off the Twin
Server.
4. 15 copies of complete and detailed specifications for the current
Telerate twin environment API (with sufficient detail to enable Omega to modify
TradeStation to be compatible with such environment).
To be delivered and fully installed at Xxxx residence in Gables Estates,
Florida:
One copy of software (and full enablement including all data available on
the data feed) of the upcoming Telerate Twin environment which allows for
the server and the workstation software to be running on the same
computer.
Plus: all other materials, equipment, information and assistance required by
Omega from time to time in connection with the development of the Telerate
Version of TradeStation.
EXHIBIT A-2
DESCRIPTION OF DATA FEEDS FOR
TELERATE VERSION OF TRADESTATION
The Telerate Workstation server commonly known as "Twin Server", as it operates
to transmit Telerate financial market data, which will run concurrently on the
same computer that will be running the Telerate Version of TradeStation.
2
EXHIBIT B
NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT, dated as of August __, 1994, by and among
XXXXXXX XXXX and XXXXXX XXXX (collectively, the "Cruzes"), and DOW XXXXX
TELERATE, INC., a York corporation ("Telerate").
PRELIMINARY STATEMENT
Telerate and Omega Research, Inc., a Florida corporation currently owned
by the Cruzes ("Omega"), have, on the date hereof, entered into a certain
Software License, Maintenance and Development Agreement (the "License
Agreement). Pursuant to Section C.3 of the License Agreement, Omega has made
certain negative covenants to Telerate. In order to comfort Telerate that the
Cruzes will not do outside of Omega what Omega cannot do directly pursuant to
Section C.3 of the License Agreement, the Cruzes have, subject to the important
bargained-for limitations described below, agreed to be personally bound to the
provisions of Section C.3 of the Agreement.
NOW, THEREFORE, it is agreed as follows:
1. PRELIMINARY STATEMENT. The Preliminary Statement is true and correct
and constitutes a part hereof.
2. COVENANT. Each of the Cruzes covenants that he shall be bound
personally to the covenants of Omega set forth in Section C.3 of the License
Agreement, and that he will not take, and will refrain from taking, any action
which Omega is prohibited from taking under said Section C.3 of the License
Agreement. The Cruzes are not executing this document for any other purpose, and
are in no way or manner guarantors or co-makers of any covenant or obligation of
any kind or nature of Omega set forth in the License Agreement or any other
agreement or instrument executed or delivered in connection therewith.
3. LIMITATION OF LIABILITY. In the event that either of the Cruzes
breaches this Agreement, Telerate's sole and exclusive remedy shall be to obtain
from a court of competent jurisdiction a temporary restraining order,
preliminary injunction and permanent injunction (for the period of restriction)
enjoining the Cruzes from taking the actions prohibited in Section 2 above.
Telerate shall have no right, in any circumstance, to seek or recover damages of
any kind from either of the Cruzes for any reason or upon any theory (legal or
otherwise) whatever, it being understood that the equitable relief described
above is Telerate's sole and exclusive remedy (whether or not as a practical
matter it is an
effective remedy in the circumstances) for any breach by either or both of the
Cruzes of this Agreement. The parties acknowledge, confirm and agree that the
provisions of this Section 3 were specifically bargained for, and that the
Cruzes would not have entered into this Agreement for the benefit of Telerate
absent Telerate's absolute assurance that the Cruzes would never be personally
responsible for or answerable in damages of any kind in the event of a breach
hereof. In furtherance of the foregoing, Telerate hereby covenants that it will
never xxx either of the Cruzes personally (except to the extent necessary to
obtain the equitable relief contemplated herein) with respect to any provision,
obligation or covenant contained in the License Agreement, or any breach or
violation thereof, or with respect to any transaction or matter arising out of
or related to the License Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
------------------------
XXXXXXX XXXX
------------------------
XXXXXX XXXX
DOW XXXXX TELERATE, INC.
By:
------------------------
Name: XXXX X. XXXXXXX
Title: PRESIDENT
2
EXHIBIT C
ESCROW AGREEMENT
SOFTWARE ESCROW AGREEMENT
SOFTWARE ESCROW AGREEMENT, dated August ____, 1994 (the "Agreement"), by
and among OMEGA RESEARCH, INC., a Florida corporation ("Omega"), DOW XXXXX
TELERATE, INC., a New York corporation ("Telerate"), and SUN BANK/MIAMI,
NATIONAL ASSOCIATION ("Escrow Agent").
PRELIMINARY STATEMENT
Omega and Telerate are parties to that certain Software License,
Maintenance and Development Agreement dated August ____, 1994 (the "License
Agreement"). Pursuant to Section J of the License Agreement, Omega has agreed to
deposit in escrow with Escrow Agent, on computer disk, the Source Code (and
certain related materials) for the Telerate Version of TradeStation. This
Agreement shall govern the terms and conditions of such escrow arrangement.
Capitalized terms used herein, which are not defined herein, shall have the
respective meanings ascribed to them in the License Agreement.
NOW, THEREFORE, it is agreed as follows:
1. SUPPLEMENTARY AGREEMENT. This Agreement is supplementary to the License
Agreement. This Agreement is intended to provide certain guidance for the
limited circumstances under which Telerate shall be entitled to access to the
Source Code (and certain related materials) for the Telerate Version of
TradeStation in order to protect certain of its interests under the License
Agreement.
2. NO INFERENCE OF TERMINATION. The description herein of the possible
occurrences that would constitute a Release Event (as defined below), and the
consequences thereof, shall create no presumption that Omega or its trustee in
bankruptcy should be permitted to reject or terminate this Agreement under
applicable law. The parties agree that such a rejection or termination would be
prejudicial to Telerate's interests. This Agreement is not intended to diminish,
enlarge, modify or impair, and this Agreement shall not diminish, enlarge,
modify or impair, any right or obligation of any party under the License
Agreement.
3. ESCROW DEPOSIT. Within ten (10) days following the Acceptance Date,
Omega shall deposit with Escrow Agent, and Escrow Agent shall accept the deposit
of, in a sealed envelope, the Source Code, on computer disk, for the Telerate
Version of TradeStation, together with such programmers notes and instructions
as have been prepared by Omega in the normal course of its operations in
connection with the creation of such Source Code (collectively the "Escrowed
Code"). Omega shall, promptly after such deposit is
made, notify Telerate of that fact. Escrow Agent shall hold and maintain the
Escrowed Code at its premises at 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx, in a vault
or safety deposit box, and shall not permit access thereto, or the release
thereof, by or to any person or entity whatever, except as specifically
permitted by this Agreement.
4. SUPPLEMENTARY ESCROW DEPOSITS. Within ten (10) days following the
completion and acceptance of any Enhancement to the Telerate Version of
TradeStation developed by Omega, Omega shall deposit with Escrow Agent, and
Escrow Agent shall accept deposit of, in a sealed envelope, the updated Source
Code, on computer disk, for the Telerate Version of TradeStation as so enhanced,
together with such programmers notes and instructions as have been prepared by
Omega in the normal course of its operations in connection with the creation of
such updated Source Code (collectively, an "Updated Escrowed Code"). Omega
shall, promptly after each such deposit is made, notify Telerate of that fact.
Upon any such supplementary deposit by Omega, Escrow Agent shall return to Omega
the Escrowed Code then held by Escrow Agent, and the Updated Escrowed Code shall
then become the Escrowed Code for all purposes hereunder. Omega covenants to
Telerate that each Source Code deposited into escrow pursuant to this Agreement,
including the initial deposit, will be in a language that is customarily
understood by competent computer programmers (e.g., C, C++, Assembly Language).
5. RELEASE EVENTS. The following events constitute the only events upon
which Escrow Agent is authorized to release the Escrowed Code to any person or
entity (other than deposit of the Escrowed Code with a court as more fully
explained later in this Agreement), or to allow access to the Escrowed Code by
any person or entity (individually, a "Release Event," and, collectively, the
"Release Events"):
a. VERIFICATION OF ESCROWED CODE. Within thirty (30) days following
notice from Omega of the initial escrow deposit described in Section 3 above,
and within thirty (30) days following notice from Omega of each supplementary
escrow deposit described in Section 4 above, Telerate shall be afforded access
to the Escrowed Code solely for the purpose of verifying that the Escrowed Code
contains the then-current Source Code for the Telerate Version of TradeStation.
In order to exercise such right, Telerate shall provide Omega and Escrow Agent
with written notice to that effect within the applicable 30-day period
("Verification Notice"). Within five (5) business days following the delivery of
the Verification Notice, Omega, Telerate and Escrow Agent shall schedule a
mutually convenient date, not later than thirty (30) days following the delivery
of the Verification Notice, on which a representative of Omega and a
representative of Telerate shall meet
2
at the offices of Escrow Agent to receive from Escrow Agent the sealed envelope
containing the Escrowed Code. Escrow Agent shall deliver the Escrowed Code to
Omega's representative. Each of Telerate and Omega shall confirm in writing in
advance to Escrow Agent the name of its representative. Escrow Agent shall
request appropriate photo identification from each representative prior to
releasing the Escrowed Code to Omega's representative. Following said release of
the Escrowed Code to Omega's representative, Omega's representative and
Telerate's representative shall proceed to Omega's Miami office, where
Telerate's representative will be permitted to verify, under Omega's
supervision, that the Escrowed Code contains the Source Code for the
then-current version of the Telerate Version of TradeStation. The verification
procedure shall be exclusively as follows: the Telerate representative shall be
permitted to compile the Source Code in order to enable such representative to
generate an executable program for the Telerate Version of TradeStation. Such
representative may then take back with him to Telerate such executable program
for the sole purpose of verifying that the Source Code is complete. In no event
will such Telerate representative be permitted to take any notes, or to view any
screen longer than is absolutely necessary to compile an executable program, or
to remove or take with him or her any materials other than the compiled
executable program. Following completion of the compilation of the executable
program, the Escrowed Code, in the presence of the Telerate representative,
shall be sealed in an envelope, and the Telerate representative and the Omega
representative shall then proceed to the offices of Escrow Agent, whereupon the
Escrowed Code will be redeposited with Escrow Agent, subject to future release
only upon the occurrence of another Release Event.
b. FAILURE OF OMEGA TO CORRECT AN ERROR. In the event that Omega
notifies Telerate that it is unable to correct an Error (other than an
Insignificant Error), or an Event of Default under the License Agreement has
occurred with respect to Omega based upon Omega's failure to correct an Error
(other than an Insignificant Error), and Telerate has not terminated, or given
notice of termination of, the License Agreement pursuant to any provision
thereof other than Section Q.4 thereof, and Telerate desires access to the
Escrowed Code, Telerate shall deliver to Escrow Agent and to Omega an affidavit
of Telerate, made by a duly authorized officer of Telerate (the "Correction
Failure Affidavit"), stating, as applicable, that:
(i) "Telerate is entitled to access to the Escrowed Code because
Omega has notified Telerate that it is unable to correct an Error (other than an
Insignificant Error), a copy of such notification from Omega being attached
hereto [with such notification attached], and Telerate has not terminated, or
given
3
notice of termination of, the License Agreement pursuant to any provision
thereof other than Section Q.4 thereof", or
(ii) "Telerate is entitled to access to the Escrowed Code
because an Event of Default under the License Agreement has occurred with
respect to Omega based upon Omega's failure to correct an Error (other than an
Insignificant Error), and Telerate has not terminated, or given notice of
termination of, the License Agreement pursuant to any provision thereof other
than Section Q.4 thereof," and
(iii) "Omega has been delivered a true and complete copy of this
affidavit on the date shown on the attached certified or registered mail receipt
or commercial carrier receipt evidencing delivery to Omega on such date" [and
attaching such receipt].
Subject to Omega's right to serve a Counter Affidavit (defined and
described below), at any time during the thirty (30) day period following the
end of the fifth (5th) business day following delivery of the Correction Failure
Affidavit, Escrow Agent shall, at Telerate's request, release the Escrowed Code
to Telerate. Upon receipt of the Escrowed Code in this circumstance, Telerate
shall use the Escrowed Code solely for the purpose of correcting the Error(s)
the failure of which to correct served as the basis for Telerate's right to have
access to the Escrowed Code. If requested by Omega in writing or in Omega's
Counter Affidavit, correction of said Error(s) will take place at Omega's
offices under Omega's supervision, in which event the procedures for release and
return of the Escrowed Code set forth in subsection (a) above shall be followed.
In no event shall any copy be made of the Escrowed Code. Upon completion of
correction of said Error(s), the Escrowed Code shall be sealed in an envelope
and redeposited with Escrow Agent. Even if Omega does not elect to have the
Error(s) corrected at its offices under its supervision, Omega shall have the
right to have a representative be present for such resealing and redeposit
procedure.
(c.) BANKRUPTCY OF OMEGA. In the event that an Event of Default occurs
with respect to Omega under Section N.2(a)(iv) or (v) of the License Agreement,
and Telerate does not terminate or give notice of termination of the License
Agreement pursuant to any provision thereof other than Section Q.4 thereof, and
Omega's trustee in bankruptcy has expressly rejected the License Agreement or
expressly refused to assume the License Agreement, and Telerate desires access
to the Escrowed Code, Telerate shall deliver to Escrow Agent and to Omega an
affidavit of Telerate, made by a duly authorized officer of Telerate (the
"Bankruptcy Affidavit"), stating:
4
(i) "An Event of Default has occurred with respect to Omega under
Section N.2(a)(iv) or (v) under the License Agreement";
(ii) "Telerate has not terminated and has not given notice of
termination of the License Agreement pursuant to any provision thereof other
than Section Q.4 thereof";
(iii) "Omega's trustee in bankruptcy has expressly rejected the
License Agreement or has expressly refused to assume it, and a copy of the
action of the bankruptcy court so rejecting or refusing to assume the License
Agreement is attached" [and attaching a true, correct and complete copy of such
action]; and
(iv) "Omega has been delivered a true and complete copy of this
affidavit on the date shown on the attached certified or registered mail receipt
or commercial courier receipt evidencing delivery to Omega on such date" [and
attaching such receipt].
Subject to Omega's right to serve a Counter Affidavit, at any time
during the thirty (30) day period following the end of the fifth (5th) business
day following delivery of the Bankruptcy Affidavit, Escrow Agent shall, at
Telerate's request, release the Escrowed Code to Telerate. Upon receipt of the
Escrowed Code in this circumstance, Telerate may use the Escrowed Code, until
the expiration or termination of the License Agreement, solely for the purpose
of correcting Errors and providing maintenance and support to subscribers for
the Telerate Version of TradeStation, and if, but only if, Omega is in
liquidation or has completely ceased operations, and Telerate has not terminated
or given notice of termination of the License Agreement pursuant to Section Q.4
thereof, to make Enhancements, any such Enhancements to be the property solely
of Omega. In no event shall any copy be made of the Escrowed Code.
6. TERM. This Agreement shall be effective as of the date hereof and shall
continue to be effective until the earliest of (a) the date which is four years
and 60 days following the date of the initial deposit of the Escrowed Code
pursuant to Section 3 above (the "Outside Termination Date"), (b) the date on
which the License Agreement naturally expires by its terms, and (c) subject to
the right of Telerate to deliver a Counter Affidavit, the date on which the
Escrow Agent receives an affidavit from either Telerate or Omega (the
"Termination Affidavit") (a copy of which shall be served on the non-serving
party) stating that the License Agreement is or has been terminated pursuant to
any provision thereof other than Section Q.4 thereof, and that the non-serving
party has been delivered a true and complete copy of the Termination Affidavit
on the date shown on the certified registered mail receipt or commercial courier
receipt attached (a copy of which shall be
5
attached to the Termination Affidavit). Upon any such termination of this
Agreement, Escrow Agent shall release the Escrowed Code to Omega, at Omega's
request. If, however, Omega has delivered a Termination Affidavit, subject to
Telerate's right to deliver a Counter Affidavit, Escrow Agent shall return the
Escrowed Code to Omega promptly following the fifth (5th) business day following
the delivery of the Termination Affidavit. If, at the time of such termination
of this Agreement, Telerate is in possession of the Escrowed Code pursuant to
this Agreement, Telerate shall, immediately upon termination, cease using the
Escrowed Code for any purpose and promptly return it to Omega accompanied by a
letter from Telerate affirming that Telerate has ceased using the Escrowed Code
for any purpose, has used the Escrowed Code only as permitted hereunder, and has
made no copies of any kind or nature of, or made or retained any notes or
materials concerning, the Escrowed Code. (Omega shall have the right to request
and receive from Telerate such a confirmatory letter following any release to
Telerate hereunder of the Escrowed Code.) Notwithstanding anything to the
contrary contained in this Agreement, if the Escrowed Code has not been returned
to Omega by the Outside Termination Date, Escrow Agent shall release the
Escrowed Code to Omega on or promptly following the Outside Termination Date,
regardless of any conflicting or contrary instructions or objections which may
be given by Telerate (including any Counter Affidavit), the parties agreeing
that Telerate has no right whatever to make such an objection, and that Escrow
Agent has no discretion upon the occurrence of the Outside Termination Date to
do anything other than deliver the Escrowed Code to Omega.
7. COUNTER AFFIDAVIT. In any case where Telerate has asserted the right of
access to the Escrowed Code (whether pursuant to a Verification Notice, a
Correction Failure Affidavit or a Bankruptcy Affidavit), or where Omega has
asserted the right to be returned the Escrowed Code pursuant to a Termination
Affidavit (as the case may be, a "Release Affidavit"), the party who has not
delivered the Release Affidavit (the "Objecting Party") may, within five (5)
business days of its receipt of the Release Affidavit, object to the release of
the Escrowed Code requested in or in connection with the Release Affidavit by
delivering to the party who has delivered the Release Affidavit (the "Asserting
Party") and to Escrow Agent an affidavit (a "Counter Affidavit") stating that
the Asserting Party is not entitled to receive access to or release or return of
(as the case may be) the Escrowed Code, and the reasons therefor. No party shall
deliver a Counter Affidavit unless it believes, in good faith, that the
Asserting Party is not entitled to the access or release of the Escrowed Code
asserted by the Asserting Party. In no event shall Telerate have the right to
serve, or serve, a Counter Affidavit to contest the return of the Escrowed Code
to Omega on the Outside Termination Date, or upon the natural expiration of the
term of the License Agreement. In the
6
event that a Counter Affidavit is delivered, Escrow Agent shall continue to hold
the Escrowed Code, and shall not release it to, or allow access to it by, any
party, pending the joint instructions of Telerate and Omega, or as otherwise
described in Section 10(a) below.
8. DISPUTE RESOLUTION. In the event a Counter Affidavit is delivered,
Omega and Telerate shall, in good faith, attempt to resolve the dispute within
five (5) business days following the delivery of the Counter Affidavit. If a
resolution is reached, Omega and Telerate shall promptly execute joint written
instructions to Escrow Agent concerning what is to be done with the Escrowed
Code. In the event no such resolution is reached within said five-business-day
period, either party may file a suit or action in any court of competent
jurisdiction situated in Dade County, Florida to obtain such relief at law or in
equity in respect of the Escrowed Code as such party deems warranted or
appropriate.
9. LIMITATION OF REMEDIES BETWEEN TELERATE AND OMEGA. As between Telerate
and Omega, all limitations on remedies that one party may have against the other
under the License Agreement shall apply to this Agreement.
10. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW. It is understood that
the duties of the Escrow Agent are purely ministerial in nature. It is further
agreed that:
(a) In the event that Escrow Agent shall be uncertain as to the duties
or rights hereunder or shall receive instructions with respect to the Escrowed
Code which, in its sole opinion, are in conflict with either other instructions
received by it or any provision of this Agreement, it shall be entitled to
continue to hold the Escrowed Code, or a portion thereof, in escrow pending the
resolution of such uncertainty to Escrow Agent's sole satisfaction, by final
judgement of a court or courts of competent jurisdiction or otherwise; or Escrow
Agent, at its option, may deposit the Escrowed Code in the registry of a court
of competent jurisdiction in a proceeding to which all parties in interest are
joined. Upon so depositing the Escrowed Code and filing its complaint and
interpleader, Escrow Agent shall be completely discharged and released from
further liability.
(b) Escrow Agent shall not be liable for any action taken or omitted
hereunder except in the case of its bad faith, gross negligence or willful
misconduct. Escrow Agent shall be entitled to consult with counsel of its own
choosing and shall not be liable for any action taken, suffered or omitted by it
in reasonable reliance upon the advice of such counsel. Any
7
reasonable expenses incurred by Escrow Agent in connection with such
consultation shall be reimbursed by Telerate.
(c) Telerate shall indemnify and hold Escrow Agent, its agents,
representatives, and employees harmless from any claim, demand or loss suffered
by Escrow Agent and the cost thereof (including court costs and attorneys' fees
for negotiation, trial and appeal).
(d) This agreement sets forth exclusively the duties of Escrow Agent
with respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into this Agreement against Escrow Agent.
(e) Escrow Agent may resign as Escrow Agent at any time upon thirty
(30) days prior written notice to Telerate and Omega. In the case of Escrow
Agent's resignation, its only duty shall be to hold and release, if required,
the Escrowed Code in accordance with the original provisions of this Agreement
until a successor escrow agent shall be appointed and written notice of the name
and address of such successor escrow agent shall be given to the escrow agent by
Telerate and Omega, whereupon Escrow Agent's only duty shall be to deposit with
the successor escrow agent the Escrowed Code if then in its possession.
11. FEES AND EXPENSES. Escrow Agent shall be entitled to: (a) an annual
administration fee of $1,500.00 payable by Telerate and (b) be reimbursed by
Telerate for any reasonable out-of-pocket expenses for performing its
obligations in connection with this Agreement.
12. NOTICES. All notices, affidavits, instructions, requests and other
communications required or permitted hereunder shall be in writing and shall be
delivered in person or sent by commercial overnight courier (such as Fedex) or
certified or registered mail, return receipt requested:
(a) If to Telerate, to:
Dow Xxxxx Telerate, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
8
with a copy to:
Dow Xxxxx Telerate, Inc.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
(b) If to Omega, to:
Omega Research, Inc.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx and Xxxxxx Xxxx
with a copy to:
Xxxxx Xxxx Xxxxx Constant
Xxxxxxxx & Bilzin
2500 First Union Financial Center
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
(c) If to Escrow Agent, to:
Sun Bank/Miami, N.A.
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
ATTN: ____________________,
or to such other addresses as may be stipulated in writing by the parties
pursuant hereto. Notice shall be effective on the date it is officially recorded
as delivered by return receipt or the courier service.
13. FORCE MAJEURE. No party hereto shall be deemed to be in default of any
provision of this Agreement, or for failures in performance, resulting from acts
or events beyond the reasonable control of such party.
14. AMENDMENT. This Agreement may not be amended except by written
instrument executed by each of the parties hereto.
9
15. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be binding upon
and shall inure to the benefit of the parties and the parties' respective
successors at law and permitted assigns.
16. HEADINGS. The headings of sections and paragraphs herein are included
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
17. GOVERNING LAW; VENUE. This Agreement shall be controlled, construed
and enforced in accordance with the laws of the State of Florida, other than
laws relating to conflicts of law. The venue and jurisdiction for any claim
under this Agreement shall be in the appropriate court in Dade County, Florida.
18. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties and supersedes all previous verbal and written agreements.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement as of the day first above written.
DOW XXXXX TELERATE, INC. OMEGA RESEARCH, INC.
By:_______________________ By:_________________________
Name: Name:
Title: Title:
ESCROW AGENT:
SUN BANK/MIAMI, NATIONAL ASSOCIATION
By:___________________________________
Name:_________________________________
Title:________________________________
10
EXHIBIT D
QA TEST SCRIPT
CHART
Data
Amount
The program shall allow the user to load up to 13,000 bars
of data per data stream in any chart window.
Resolution
The user can display data in tick, intraday (any interval
up to 1440 minutes), daily, weekly, monthly and point and
figure resolutions, for either 1 or 2 session markets.
Type
All symbols that can be displayed in TeleTrac 2.4 as
supported by TWIN will be plotted and continuously updated
by the program.
Display
Market status
The user can display a continuously updated status line at
the top of any chart window that will include the current
price, net change from prior day's close, day's high, day's
low and current indicator values.
Chart types
The program shall allow the user to display prices as
Open-High-Low-Close, High-Low-Close, Japanese Candlestick,
Dot on Close and Line on Close bars.
Configuration
The program shall allow the user to change the color and
size of any element on a chart. This includes the font and
font color, window background and bar thickness and color.
Tools
The user can place any of the following tools on any price or any
indicator on a chart. Arc, Up/Down arrows, Standard/Fibonacci
Cycles*, Ellipse, Xxxx Fan*, Horizontal Line*, Percent Retracement,
Rectangle, Speed Resistance Arc/Fan*, Support Resistance Lines*,
Trend Lines*, Text, Zoom. The user can modify display attributes and
position of any tool placed on a chart. Furthermore, the user shall
be allowed to enable alarms on those tools marked with an asterisk
that will alert the user when the market penetrates that tool.
Analysis Techniques
The user shall be allowed to place any of the following analysis
techniques on a chart.
Indicators, PaintBars(tm), ShowMe's(tm) Custom 1 Line, Custom 2
Lines, Custom 3 Lines, Custom 4 Lines, Mov Avg - Displaced, Mov
Avg Weighted, DMI, Xxxxxxxxx Bands, Mov Avg 1 Line, Mov Avg 2
Lines, Mov Avg 3 Lines, Mov Avg Envelopes, Mov Avg Exponential,
Commodity Channel Index, On Balance Volume, Gapless Bar Chart,
True Low, Open Interest, XxXxxxxxx Oscillator, MFI, Parabolic,
Accumulation Distribution, Percent R, Price Channel, Rate of
Change, RSI, RSI w/o Zones, Accumulation Swing Index, MACD,
Spread, DownTicks, Stochastic - Fast, Stochastic - Slow, Swing
Index, Volume (Tick Vol) Volume (UpTick Vol), Volume (DownTick
Vol), Volume, Up/Down Tick Difference, Ultimate Oscillator,
Volatility, Momentum, Consecutive x bars down, Consecutive x
bars up, Gap Down Bar, ShowMe(tm) Anything, Key Reversal Up, Key
Reversal Down, Outside Bar, Gap Up bar, Inside Bar, Island
Reversal Up, Island Reversal Down, Breakout of x Bar High,
Breakout of x Bar Low,
%R /less than/ x, %R /greater than/ x, Price /greater than/ x
Bar Avg. Price /less than/ x Bar Avg. Close Avg /less than/ Open
Avg, Close Avg /greater than/ Open Avg, Momentum Increasing,
Momentum Decreasing, Stochastic Fast Custom, Stochastic Slow
Custom, PaintBar(tm) Custom, Percent Change, Down Ticks, Equal
Ticks, Up Ticks.
Systems
CCI Avg Crossover, Channel Breakout IntraBar, Channel Breakout
on Close, Channel Breakout Weighted, Consecutive Closes, X
Average Crossover, Divergence, Key Reversal major, MACD,
Weighted Average Crossover, Parabolic, PercentR Oscillator, RSI
Oscillator, Stochastic Crossover, Mov Avg Crossover, Mov Avg(3)
Crossover.
Experts
Fundamental Expert, Technical Expert, Fundamental
and Technical Expert.
Furthermore, the user can modify the inputs and alert criteria of any
of the aforementioned analysis techniques.
QUOTE
Data
Amount
256 quotes per window.
Resolution
Tick by tick.
Type
All symbols that can be displayed in TeleTrac 2.4 as supported
by TWIN shall be continuously updated in the quote window.
Display
Quote fields
All fields that can be displayed in TeleTrac 2.4 as supported by
TWIN will be available to the user. Furthermore, user definable
alarm fields can be added that alert the user to breakout
conditions on the high, low, time and volume.
Configuration
The program shall allow the user to change the color and size of
any element on a quote window. This includes the font and font
color, window background color and the colors of alert fields.
System Tracking Control Center
Data
Active Orders
Date/time order was placed, symbol name, type of order,
system name, signal name.
Cancelled Orders
Date/time order was cancelled, symbol name, type of order,
system name, signal name.
Filled Orders
Date/time order was filled, symbol name, type of order,
system name, signal name.
Open Positions
Symbol, position, entry price, current price, profit,
system name, signal name.
Display
Configuration
The program shall allow the user to change the color and size of
any element on a STCC window. This includes the font and font
color and window background color.
Alert Tracking Control Center
Data
Date/time alert was hit, symbol, name, last price.
Display
Configuration
The program shall allow the user to change the color and size of
any element on a STCC window. This includes the font and font
color and window background color.
CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS
FIRST AMENDMENT
TO
SOFTWARE LICENSE, MAINTENANCE AND DEVELOPMENT AGREEMENT
FIRST AMENDMENT, dated as of March 7, 1997 ("First Amendment"), between
DOW XXXXX MARKETS, INC., f/k/a DOW XXXXX TELERATE, INC., a New York corporation,
with an office at One World Financial Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Telerate"), and OMEGA RESEARCH, INC., a Florida corporation with
offices at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 ("Omega").
PRELIMINARY STATEMENT
Telerate and Omega are parties to that certain Software License,
Maintenance and Development Agreement dated as of August 26, 1994 (the "Original
Agreement"), pursuant to which (a) Omega agreed to license to Telerate the
Telerate Version of TradeStation, and (b) Omega agreed not to enter into any
agreement or arrangement with any of the Telerate Competitors to develop and
then sell a version of TradeStation or any Real-Time product which performs
substantially all of the same functions of TradeStation which is compatible with
the data feeds of the Telerate Competitors (the "Noncompetition Covenant"). The
parties now desire to amend the Original Agreement in order to extend the term
of the license to Telerate to market and sell subscriptions for the Telerate
Version of TradeStation by an additional three (3) years, and to extend the
Noncompetition Covenant for such additional three years. Capitalized terms used
herein which are not defined herein shall have the respective meanings ascribed
to them in the Original Agreement.
NOW, THEREFORE, in consideration of the promises and consideration herein
contained, the parties hereby agree as follows:
1. EXTENSION OF THE TERM AND NONCOMPETITION COVENANT.
a. The terms and conditions of the Original Agreement, including, but not
limited to, the term thereof and the term of the Noncompetition Covenant, shall
continue in full force and effect, subject to the early termination events
specified therein, until the sixth anniversary of the Royalty Commencement Date
(the parties hereby confirm that the Royalty Commencement Date was January 12,
1996). While it is understood that the Noncompetition Covenant applies to
TradeStation and any other Real-Time product of Omega which performs
substantially all of the same functions, and is used for substantially all of
the same purposes, as, and is competitive with, TradeStation, it does not apply
to any other product of Omega (e.g. OptionStation /trademark/****************).
The term "Telerate Competitors" is hereby expanded to include Bridge. The
parties acknowledge and agree that, notwithstanding anything in the definition
"Telerate Competitors" to the contrary, neither any data vendor which, nor the
business of any such data vendor which, is acquired by any of the Telerate
Competitors listed in the Original Agreement or Bridge, nor any successor
company created by any such Telerate Competitor or Bridge to succeed to such
business (if any), shall be deemed a Telerate
CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS
Competitor for purposes of the Agreement unless such data vendor was, or the
business acquired was owned by, one of the Telerate Competitors listed in the
Original Agreement or Bridge. However, if the acquired company or business is
used as a conduit for the data feeds of Telerate Competitors which are
substantially similar to the data feeds of Telerate (as described in Section C.3
of the Original Agreement as amended hereby), such acquired company or business
shall be deemed a Telerate Competitor.
b. "Fourth Anniversary" means the one-year period ending January 12, 2000;
"Fifth Anniversary" means the one-year period ending January 12, 2001; and
"Sixth Anniversary" means the one-year period ending January 12, 2002.
2. MINIMUM GUARANTEED ROYALTY FEES FOR EXTENDED TERM. Omega shall be entitled
to receive guaranteed minimum aggregate Royalty Fees (regardless of the
aggregate Royalty Fees computed under Section D.1 of the Original Agreement) for
the extended term of the Agreement as follows:
a. for the period commencing on the Third Anniversary and ending on the
Fourth Anniversary, the sum of ********************************* (the "Fourth
Year Minimum");
b. for the period commencing on the Fourth Anniversary and ending on the
Fifth Anniversary, the sum of ******************************** (the "Fifth
Year Minimum"); and
c. for the period commencing on the Fifth Anniversary and ending on the
Sixth Anniversary, the sum of ********************************** (the "Sixth
Year Minimum").
Each of the Fourth Year Minimum, the Fifth Year Minimum and the Sixth Year
Minimum shall be paid to Omega in monthly installments in the same manner as the
first three years' guaranteed minimums are payable, subject to quarterly
reconciliation against the calculation of the Royalty Fees in the same manner as
set forth in Section D.6 of the Original Agreement. Telerate shall continue to
supply statements to Omega and maintain Records with respect to such fourth,
fifth and sixth years in the same manner and to the same extent as it is
required to do so with respect to the first three years, as set forth in Section
D of the Original Agreement.
3. EXTENSION OPTION. The Extension Option set forth in Section N.1 of the
Original Agreement is hereby superseded by the foregoing provisions of this
First Amendment. Consistent with the foregoing, the third sentence of Section
N.3 of the Original Agreement is hereby deleted.
4. NAME UNDER WHICH THE TELERATE VERSION OF TRADESTATION WILL BE MARKETED.
Telerate agrees that the Telerate Version of TradeStation shall, throughout the
remainder of the term of the Agreement, continue to be marketed under the name
"TradeStation(TM)." Telerate may, if it chooses,
2
market the Telerate Version of TradeStation under the combined trademark "Dow
Xxxxx TradeStation(TM)". The use of the TradeStation(TM) trademark by Telerate
shall be subject to the terms of the existing trademark license in effect
between Telerate and Omega, the term of which is hereby extended to be
coincident with the term of the Agreement, and which is hereby amended to
provide for the use of the combined trademark "Dow Xxxxx TradeStation" in lieu
of "TeleTrac TradeStation." Telerate shall display appropriate registered
trademark notices on all uses of the trademark "TradeStation", together with a
statement that TradeStation is a registered trademark of Omega Research, Inc. In
addition, the sign-on screen message and the "About" box of the Telerate Version
of TradeStation program shall, in addition to the display of the notice and
legend required to be included by Section I of the Original Agreement,
conspicuously display the appropriate registered trademark notice together with
a statement that TradeStation is a registered trademark of Omega Research, Inc.
5. FREE ENHANCEMENTS. Section G.1 of the Original Agreement is hereby amended
as follows:
1. There shall be a period placed at the end of clause (b)(iii) following
the words "acceptance purposes" and the balance of the words and punctuation of
such sentence, which are "and (iv) to mutually agree upon the costs, fees and
other charges which will be paid by Telerate to Omega for the development of the
Enhancement, including the timing and amount of any applicable payments," is
hereby deleted.
b. The following sentences are hereby added after the sentence containing
clause (b), as amended above:
"An Enhancement requested by Telerate which meets all of the
foregoing requirements shall be developed by Omega free of charge to
Telerate. Notwithstanding any of the foregoing to the contrary, Omega
shall not be required to develop any Enhancement which, in Omega's good
faith judgment, would have an adverse effect or impact on Omega or its
business interests."
6. DEVELOPMENT OF NEW DATA FEEDS AND PLATFORMS BY TELERATE. In the event that
Telerate develops (a) an additional Data Feed (as defined below) to be made
available as part of the Dow Xxxxx Workstation Platform (or as part of an
additional Platform (as defined below) with which the Telerate Version of
TradeStation becomes compatible pursuant to these provisions), or (b) an
additional Platform (such as an Internet Platform) to be made available to
subscribers either in addition to, or in substitution for, the Dow Xxxxx
Workstation Platform as part of which the Data Feeds specified in Exhibit A-2
(as same may be amended pursuant to these provisions) are to be offered (as the
case may be, a "New Dow Xxxxx Data Product"), Omega shall use commercially
reasonable efforts to modify the Telerate Version of TradeStation so that it is
compatible with the New Dow Xxxxx Data Product. Exhibit A-2 of the Original
Agreement is hereby amended in its entirety to read as follows: "The Telerate
data feeds currently known and referred to as: The Items Producer; The QDS
Producer; and the TWParser Producer, which constitute part of the Telerate
Platform known as Dow Xxxxx Workstation, and any additional data feeds which are
made available
3
in the future as part of Dow Xxxxx Workstation to the extent compatibility of
such data feeds with the Telerate Version of TradeStation is established
pursuant to the Agreement." The parties shall adhere to the provisions and
procedures of Section G.1 of the Original Agreement (as modified by this First
Amendment) with respect to the request for, and development, testing and
acceptance of, such modified version of the Telerate Version of TradeStation,
except that subsection (a) of Section G.1 shall not apply and Omega shall not be
permitted to assert that achieving such compatibility would be adverse to Omega
or its business interests. Upon acceptance by Telerate of such modified version,
the New Dow Xxxxx Data Product shall be deemed added to Exhibit A-2. In all
other respects, the scope of the license granted to Telerate and all
restrictions and prohibitions on Telerate's use of the Telerate Version of
TradeStation set forth in Section C or elsewhere in the Agreement shall remain
unmodified and continue to be of full force and effect. With respect to the
"exclusive" nature of such expanded license (i.e., the restrictions relating to
Telerate Competitors set forth in Section C.3 of the Original Agreement, as
amended hereby), such "exclusivity" (i.e., such restrictions) shall apply with
respect to a New Dow Xxxxx Data Product only to the extent that the Data Feeds
which constitute or are used in connection with such New Dow Xxxxx Data Product
are substantially similar to the Data Feeds generated by Telerate. Telerate
shall, at its expense, provide to Omega such assistance, technical and other
information, equipment and materials as may be required or as may be reasonably
requested by Omega to complete the necessary modifications. Any such
information, equipment or materials so provided shall constitute
Telerate-Provided Materials for all purposes of the Agreement relating to the
ownership and use thereof. If, despite using commercially reasonable efforts,
Omega is unable to develop the necessary modifications to make the Telerate
Version of TradeStation compatible with the New Dow Xxxxx Data Product, the
Agreement shall remain of full force and effect, neither party shall have any
liability to the other in respect of such failure to achieve compatibility, and
each party shall remain bound to perform all of its obligations under the
Agreement. For purposes of the Agreement, "Platform" means the software through
which particular financial market data delivered on a Real-Time basis is made
available to a subscriber for such financial market data, and which constitutes
a product of the data vendor in the sense that such software may include various
features and functions relating to the manner in which the financial market data
is accessed, received, displayed and/or may be used. All references in the
Agreement to the Dow Xxxxx Workstation Platform mean the product known as "Dow
Xxxxx Workstation" and NOT the product known as "Dow Xxxxx Platform" or the TTRS
system. For purposes of the Agreement, "Data Feed" or "data feed" means a type
or category of financial market data (e.g., equity prices) of a certain quality,
detail and content, formatted in a particular way or ways, for delivery to
subscribers. Consistent with such definition, and in order to eliminate any
ambiguity set forth in Section C.3 of the Original Agreement, Section C.3(a) is
hereby amended in its entirety as follows:
"Omega agrees that it shall not enter into any agreement or
arrangement with any of the Telerate Competitors to develop and then sell
during the term of this Agreement any Real-Time product which is
compatible with data feeds of the Telerate Competitors which are
substantially similar to the data feeds currently generated by Telerate.
Omega further agrees that, in the event that Omega learns the
specifications
4
of data feeds of any of the Telerate Competitors which are substantially
similar to the data feeds currently generated by Telerate, Omega shall not
develop a new version of, or modify, TradeStation for the purpose of
making TradeStation compatible with such specifications and then sell such
new or modified version during the term of this Agreement."
7. COMPATIBILITY WITH OTHER PRODUCTS. Omega shall, at Telerate's request at
any time or from time to time, use commercially reasonable efforts to make each
other then existing product of Omega, for the term of the Agreement, compatible
with all Data Feeds and Platforms of Telerate with which the Telerate Version of
TradeStation is then compatible ("Other Compatible Products"). In attempting to
achieve such compatibility, the procedures and provisions described in Section 6
above shall apply. If Telerate so requests, Omega shall grant to Telerate a
non-exclusive license to distribute one or more of such Other Compatible
Products, provided that Omega and Telerate are able to agree upon a
comprehensive, written license agreement setting forth all of the terms and
conditions of such license, including, without limitation, the royalties and/or
other consideration to be paid to Omega. If Omega offers to license any of the
Other Compatible Products to a Telerate Competitor (an "Offered Product"), it
shall offer to license such Offered Product to Telerate no later than the time
such offer is made to the Telerate Competitor, and, if a binding agreement is
reached between Omega and the Telerate Competitor, the royalties and/or other
consideration to be paid to Omega by Telerate for such license (assuming that
Telerate desires to license such Offered Product and Telerate and Omega enter
into the comprehensive, written license agreement referred to above) shall not
be at a rate which is higher than that which is to be paid by the Telerate
Competitor under its agreement with Omega. If, despite using commercially
reasonable efforts, Omega is unable to develop the compatibility contemplated
above with respect to any product of Omega, neither party shall have any
liability to the other in respect of such failure to achieve compatibility, and
each party shall remain bound to perform all of its obligations under the
Agreement.
8. MODIFICATION TO LICENSE. Section C.1(a) of the Original Agreement is
hereby amended by adding the words and symbols "(or access solely from)" between
the words "installation solely in" and the words "Workstations and Stand-Alone
Units" on the ninth line of said Section C.1(a).
9. REMOTE SUPPORT. Section F.5 of the Original Agreement is hereby amended
by adding the words and punctuation ", by telephone and electronic mail,"
between the words "make available" and the words "personnel expertly trained" on
the 11th line of said Section F.5.
10. NO FURTHER AMENDMENTS. Except as set forth above, all of the terms and
conditions of the Original Agreement remain unmodified and of full force and
effect. In the event of any inconsistency between the provisions of the Original
Agreement and the provisions of this First Amendment, the provisions of this
First Amendment shall govern. The term "Agreement," as used herein, means the
Original Agreement as modified by this First Amendment.
5
IN WITNESS WHEREOF, the undersigned parties have duly executed and
delivered this Agreement as of the date first above written.
DOW XXXXX MARKETS, INC. OMEGA RESEARCH, INC.
By: /s/ XXXXXX X. CHILDS By: /s/ XXXXXXX XXXX
------------------------ ---------------------------
Xxxxxx X. Childs Xxxxxxx Xxxx, President
Title: EVP
REAFFIRMATION OF NONCOMPETITION AGREEMENT
Reference is made to that certain Noncompetition Agreement, dated as of
August 26, 1994, by and among Xxxxxxx Xxxx and Xxxxxx (Xxxxx) Xxxx and Telerate,
which was executed and delivered pursuant to the Original Agreement (the
"Noncompetition Agreement"). The parties hereby reaffirm all of the provisions,
terms, conditions and obligations set forth in the Noncompetition Agreement.
DOW XXXXX MARKETS, INC.
By: /s/ XXXXXX X. CHILDS /s/ XXXXXXX XXXX
------------------------ --------------------------
Xxxxxx X. Childs XXXXXXX XXXX
Title: EVP
/s/ XXXXX XXXX
--------------------------
XXXXX XXXX
6
