Exhibit 10.1
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AGREEMENT
THIS AGREEMENT is made as of September 19, 2002 (the "Effective Date")
BETWEEN
(1) REUTERS SA, a company incorporated in England and Wales whose
registered office is at 000 Xxxxx Xxxxxx, 0000 Xxxxxxxx-Xxxxxxxxx,
Xxxxxxxxxxx ("Reuters"); and
(2) INSTINET GROUP INCORPORATED, a Delaware corporation with a principal
place of business at The Reuters Building, Three Times Square, New
York, New York 10036 ("Instinet").
A. Purpose and Scope:
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1. The purpose of this Agreement is to set forth the terms and
conditions by which Reuters will provide access to Instinet trading
functionality through Institutional Order Entry ("IOE").
2. The parties are entering into this Agreement in connection with, and
with reference to, the Transaction System Agreement for IOE services
between Bridge Trading Company and Instinet Corporation and the
commercial terms contemplated by such agreement, effective September
2002 ("Instinet IOE Agreement").
B. Enhanced IOE Functionality.
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1. Reuters and Instinet will use their commercially reasonable efforts
to provide Instinet customers with access to certain of Instinet's
trading functionalities through IOE ("Enhanced IOE Functionality").
The Enhanced IOE Functionality shall include, but not be limited to,
the developments necessary to permit Instinet customers to access IOE
from Instinet's patent pending Newport Trading System and to permit
customers to access Instinet's pegging, sweep, discretion and reserve
trading functionality ("Instinet Functionality") through IOE.
2. To the extent that an existing Instinet customer approves, the
Enhanced IOE Functionality will display Instinet as the default
broker-dealer on the IOE interface, provided however that this default
will not be included on versions of IOE sold or licensed through other
partner channels (e.g., on a "white label" basis). IOE customers may
change this default at any time either on a trade-by-trade basis or
permanently. In addition, Reuters will honor all customer preferences
for a particular broker-dealer previously designated by a customer.
3. Both parties shall work in good faith to provide the specifications
and production schedules necessary for the Enhanced IOE Functionality.
4. Reuters and Instinet will use commercially reasonable efforts to
complete the enhancements according to the agreed upon specifications
and development schedules.
C. Review.
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Reuters and Instinet will consider enhancements to Instinet's trading
functionality from time to time to determine what, if any, Enhanced IOE
Functionality may be developed to provide access to the Instinet's
trading functionality. Any additional Enhanced IOE Functionality shall
be subject to mutual agreement between the Parties.
D. Exclusivity.
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Nothing contained in this Agreement shall in any way be interpreted to
create an exclusive relationship between Reuters and Instinet as it
relates to the subject matter contained in this Agreement.
E. Promotion.
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Instinet agrees to encourage its customers to use IOE (subject to the
commercial arrangements between the parties as set forth in the
Instinet IOE Agreement to communicate orders to Instinet, so long as
IOE remains a commercially reasonable method for such clients to
communicate with Instinet.
F. Term.
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This Agreement will take effect on the Effective Date and will continue
for 24 months with automatic renewals of 12 months unless terminated on
not less than ninety (90) days notice. Each Company will have the right
to terminate the Enhanced IOE Functionality for any reason in its sole
discretion at such time as Reuters and its affiliates shall cease to
own (directly or indirectly) more than fifty (50%) percent of the
outstanding voting stock of Instinet and at any time thereafter by
giving the non-terminating Party at least thirty (30) days prior
written notice. In addition, this Agreement shall immediately terminate
upon termination of the Instinet IOE Agreement.
G. Intellectual Property.
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Reuters shall own all right, title and interest in Intellectual
Property developed or created in connection with the Enhanced IOE
Functionality or this Agreement. Unless expressly stated, nothing in
this Agreement shall be deemed to give Instinet any right, title or
claim to the IOE. Intellectual Property means inventions (whether
patentable or not, and whether or not patent protection has been
applied for or granted), improvements, developments, discoveries,
proprietary information, trademarks, logos, know how, processes,
designs, utility models, mask work rights, rights in databases and
moral rights and all works protected by rights or forms of protection
of similar nature or having equivalent effect anywhere in the world.
Instinet shall own all right, title and interest in the Newport Trading
System and the Instinet Functionality. Unless expressly stated, nothing
in this Agreement shall be deemed to give Reuters any right, title or
claim to the Newport Trading System and the Instinet Functionality.
H. Confidentiality.
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1. Definition of Confidential Information. For purposes of this
Agreement, "Confidential Information" of a Party means any information
and materials disclosed by or on behalf of such Party or by its agents
or representatives to the other Party during the Term in connection
with this Agreement, whether orally or in writing and whether or not
marked "Confidential" or "Proprietary", and includes any information
developed by reference to or use of any of such information and
materials. This shall extend to Confidential Information that is
confidential information of a Party's clients or suppliers.
2. Treatment of Confidential Information. (a) A Party receiving
Confidential Information shall treat as confidential all of the
Confidential Information it receives, and shall not use such
Confidential Information except as expressly permitted under this
Agreement. Without limiting the foregoing, the Party receiving
Confidential Information shall use at least the same degree of care
that it uses to prevent the disclosure of its own confidential
information of like importance, but in no event less than reasonable
care, to prevent the disclosure of the Confidential Information it
receives. Subject to the foregoing, and except as may be specifically
agreed from time to time by the Parties, each Party shall not: (1)
communicate or disclose, directly or indirectly, any of the
Confidential Information (or any part thereof) of the other Party to
any person other than to its own personnel, agents or representatives
who have a need for such information in connection with performance
under this Agreement and who have agreed in writing to confidentiality
obligations substantially similar to those set forth in this Section H;
(2) use any Confidential Information (or any part thereof) in any
manner except as contemplated under this Agreement; or (3) take any
other action with respect to the Confidential Information (or any part
thereof) of the other Party inconsistent with the confidential and
proprietary nature of such information. Disclosure of any Confidential
Information by either Party, however, shall not be deemed to represent
an assignment or grant of any right, title or interest in such
Confidential Information.
3. Exclusions. (a) Confidential Information shall exclude information
that: (i) was independently developed or conceived by the Party
receiving Confidential Information without use of or reference to
Confidential Information provided by the other Party, as demonstrated
by the written records of the Party receiving Confidential
Information; (ii) became known to the Party receiving Confidential
Information, without restriction, from a third party who had a right
to disclose it without violation of any obligation of confidentiality;
(iii) was in the public domain at the time it was disclosed or enters
the public domain through no act or omission of the Party receiving
Confidential Information or of its affiliates; or (iv) was known to
the Party receiving Confidential Information at the time of disclosure
as demonstrated by the written records of the Party receiving
Confidential Information.
(b) The restrictions set forth in Section H.2 shall not apply to
Confidential Information that is required to be disclosed by the Party
receiving Confidential Information pursuant to an order or requirement
of a stock exchange, court, administrative agency, or other
governmental body; provided, however, that the Party receiving
Confidential Information shall, where permitted by law, provide prompt
prior notice thereof to the other Party describing in reasonable detail
all Confidential Information to be so disclosed, and shall use
reasonable efforts and cooperate with the other Party at the other
Party's expense to obtain a protective order or otherwise prevent
disclosure of such Confidential Information.
4. Confidentiality of Agreement. Each Party agrees that the terms and
conditions of this Agreement, but not the existence of this Agreement,
shall be treated as Confidential Information and that no reference to
the terms and conditions of this Agreement or to activities pertaining
thereto shall be made in any form of public or commercial advertising
without the prior written consent of the other Party; provided,
however, that each Party may disclose the terms and conditions of this
Agreement: (i) as required by any court or other governmental body;
(ii) as otherwise required by law; (iii) to legal counsel of the
Parties; (iv) in connection with the requirements of any governmental
or securities exchange filing or a public offering; or (v) in
confidence, to accountants, banks and financing sources and their
advisors and provided, further, that either Party may disclose the
terms and conditions of this Agreement in confidence, to any
prospective buyers of all or substantially all of the assets, stock or
business of, or prospective investors in, Instinet.
5. Remedies. The Parties acknowledge that unauthorized use of
Confidential Information may result in irreparable harm to the Party
that disclosed such Confidential Information. Therefore, if a Party
breaches any of its obligations with respect to confidentiality and use
of Confidential Information hereunder, the Party which disclosed such
Confidential Information, in addition to any rights and remedies it may
have, shall be entitled to seek equitable, including injunctive, relief
to protect its Confidential Information.
6. Return of Confidential Information. Upon termination of this
Agreement for any reason, each Party promptly shall return to the other
Party all Confidential Information of the other Party, including all
copies thereof, under its possession or control, or destroy or purge
its own system and files of any such Confidential Information and
deliver to the other Party a written certificate signed by an officer
of such Party that such destruction and purging have been carried out.
7. Cooperation. Each Party agrees that, either upon learning of, or
upon a showing by the other Party of, any threatened or actual breach
of the provisions of this Article H or of any threatened or actual
unauthorized use or disclosure of the Confidential Information by its
officers, directors, employees, agents or subcontractors, or in the
event of any loss of, or inability to account for, any of the
Confidential Information or any such information or materials, the
Party learning of the threatened or actual breach or the unauthorized
use or disclosure shall notify the other Party thereof and shall
cooperate as reasonably requested by the other Party in conjunction
with the other Party's efforts to seek appropriate injunctive relief or
otherwise to prevent or curtail such threatened or actual breach or
unauthorized use or disclosure or to recover such Confidential
Information.
I. Disclaimer of Warranties.
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There are no warranties with respect to the Enhanced IOE Functionality
provided under this Agreement. Reuters and its suppliers make no
warranty or representation that the Enhanced IOE Functionality or IOE
will meet any of Instinet's requirements or that the Enhanced IOE
Functionality or IOE will be error free or run without interruption.
Reuters and its suppliers make and Instinet receives no warranties
whether express, implied, statutory, or otherwise arising from course
of dealing or usage of trade, and Reuters expressly disclaims all
warranties, including the implied warranties of merchantability,
non-infringement and fitness for a particular purpose.
There are no warranties with respect to Instinet Functionality or the
Newport Trading System provided under this Agreement. Instinet makes no
warranty or representation that the Instinet Functionality or the
Newport Trading System will meet any of Reuters' requirements or that
the Instinet Functionality or the Newport Trading System will be error
free or run without interruption. Instinet makes, and Reuters and its
suppliers receive, no warranties whether express, implied, statutory,
or otherwise arising from course of dealing or usage of trade, and
Instinet expressly disclaims all warranties, including the implied
warranties of merchantability, non-infringement and fitness for a
particular purpose.
J. Limitation of Liability.
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Except in relation to a party's breach of Sections G and H, no party
shall make a claim against, nor be liable to, the other for any damage,
including, without limitation, any consequential, special, indirect,
incidental or punitive damages or lost profit suffered by it because
any performance or failure to perform any obligations hereunder.
K. Expenses.
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The parties shall each pay their respective fees, costs and expenses
and those of their agents and third party vendors, independent
contractors or consultants, in connection with this Agreement,
including without limitation any legal fees.
L. Relationship of the Parties.
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Neither this Agreement nor provisions contained herein shall be
construed as creating a partnership, joint venture, franchise, agency
or other such relationship.
M. Entire Agreement/Governing Law.
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This Agreement contains the entire and exclusive agreement of the
parties with reference to the matters discussed herein and therein, and
supersedes all prior drafts, communications, discussions and
understandings, oral or written, with respect thereto. This Agreement
and all obligations of the parties hereunder and under the documents
contemplated hereby shall be governed by the laws of the State of New
York and both parties submit to the sole and non-exclusive jurisdiction
of the courts of the State of New York.
N. Notices.
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Any notice under this Agreement shall be given in writing and be deemed
to have been delivered (i) when delivered personally; (ii) 3 business
days after having been sent by registered or certified mail, postage
charges prepaid; (iii) 1 business day after deposit with an overnight
courier, with written verification of receipt; (iv) by fax provided a
copy of the notice is also mailed in accordance with this Section at
the same time. All notices will be sent to the address or number of the
respective parties as set out below, or to such other address or number
as may be designated by a party by giving written notice to the other
party pursuant to this Section.
To Reuters:
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Reuters America, Inc.
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
General Counsel
Reuters America Inc.
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
To Instinet:
Instinet Group Incorporated
Attn: General Counsel
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
REUTERS LIMITED INSTINET GROUP INCORPORATED
Signed: /s/ Xxxxx Xxxxx Signed: /s/ Xxxx Xxxxxxxxx
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Print Name: Xxxxx Xxxxx Print Name: Xxxx Xxxxxxxxx
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Title: Attorney In Fact of Reuters Title: President and Chief
--------------------------- Financial Officer and
Director
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Date: September 19, 2002 Date: September 19, 2002
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