Exhibit 10.8(b)
EXECUTION COPY
Addendum No. 3 to
Master Agreement for Electronic Distribution Services
Dated as of December 21, 1999
Reference is made to the Master Agreement for Electronic Distribution
Services dated as of November 13, 1998 between Multex Systems, Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") (the "M.A.") and
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all Schedules and Attachments thereto and all prior amendments to, and service
requests under, any of the foregoing. All of the Schedules and Attachments,
prior amendments and service requests (together with the M.A., the "Master
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Agreement") constituting part of the Master Agreement are set out on Exhibit A
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hereto.
This is Addendum No. 3 ("Addn-3"), dated and to be effective as of December
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21, 1999 (the "Addn-3 Effective Date"), to the Master Agreement, and is made by
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and between Merrill Lynch and Multex.com, Inc. (formerly, Multex Systems, Inc.)
("Multex"; together with Merrill Lynch, the "Parties"). Any capitalized term
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not defined in this Addn-3 shall have the meaning ascribed to it in the Master
Agreement.
Except as specifically amended by this Addn-3, the terms and conditions of
the Master Agreement shall remain in full force and effect.
In the event of any conflict or inconsistency between the provisions of the
Master Agreement and the provisions of this Addn-3, the provisions set forth in
this Addn-3 shall prevail with respect to the specific matter referenced herein.
The Master Agreement as revised by this Addn-3 is hereinafter referred to as the
"1999 Master Agreement."
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In consideration of the mutual promises contained herein, the Parties
hereby agree that the Master Agreement is amended as follows:
1. Definitions
Terms with initial capitalization shall have the meanings set forth below.
1.1. "Acceptance" means accepted pursuant to the terms of a Project Plan.
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1.2. "Actual Salary" means the cash salary actually paid by Multex to an
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Employee (including reasonable overtime), pro-rated to the extent that the
Employee worked on Projects for less than one (1) Man Year; provided, that for
purposes of the calculations herein, such salary amount shall not exceed the
amount equal to the non-overtime salary cost of one (1) Man Year for such
Employee.
1.3. "Additional Projects" has the meaning set forth in Section 3.5.
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1.4. "Addn-3 Effective Date" means December 21, 1999, the effective date
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of this Addn-3 as set forth above.
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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1.5. "Addn-3 Initial Term" has the meaning set forth in Section 20.1.
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1.6. "Addn-3 Renewal Term" has the meaning set forth in Section 20.1.
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1.7. "Bonus" means the bonus paid in cash by Multex to an Employee pro-
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rated to the extent that the Employee worked on Projects for less than one (1)
Man Year, and excluding securities, stock options, warrants and other non-cash
compensation or payment.
1.8. "Change of Control" has the meaning set forth in Section 16.1.
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1.9. "Confidential Information" has the meaning set forth in Section
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14(a) of the M.A.
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1.10. "Customer Data" has the meaning set forth in Section 15.1.
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1.11. "Customized Software" has the meaning set forth in Section 7.3.
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1.12. "Data and Equipment Fees" has the meaning set forth in Section
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11.5.
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1.13. "Data and Equipment Services" has the meaning set forth in Section
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11.5.
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1.14. "Data Fees" has the meaning set forth in Section 11.1.
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1.15. "Data Feeds" has the meaning set forth in Section 11.1
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1.16. [*****]
1.17. "Delivery Date" has the meaning set forth in Section 3.9.
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1.18. "Disseminate" and "Dissemination" refer to disseminating,
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delivering, publishing, transmitting, broadcasting, providing access to, making
available (including without limitation on servers) and otherwise distributing
research, content and New Content Forms, and software in connection therewith,
over Interactive Services.
1.19. "Domain Agreement" has the meaning set forth in Section 18.
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1.20. "Employee" and "Employees" mean one or more full-time employees of
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Multex, provided that no person shall be deemed to be an Employee hereunder
unless he or she has signed a confidential and nondisclosure agreement
substantially in the form of Schedule 1.20.
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1.21. "Employee Benefit Costs" means insurance costs, FICA expenses and
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other benefits provided to an Employee by Multex, as such costs are agreed to in
writing in advance by ML, adjusted on a quarterly basis, but in any event not to
exceed twenty-five percent (25%) of the Actual Salary of such Employee, unless
such percentage amount is modified pursuant to a written agreement of the
Parties such as an overhead sharing agreement.
1.22. "Employee Overhead" means (i) with respect to an Employee, forty
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percent (40%) of the sum of such Employee's Actual Salary, Bonus and Employee
Benefit Costs, and (ii) with
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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respect to an Outside Consultant, twenty percent (20%) of the sum of such
Outside Consultant Cost, in each case unless such percentage amount is modified
pursuant to a written agreement of the Parties such as an overhead sharing
agreement except as otherwise set forth in Section 7.5.
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1.23. "Equipment" has the meaning set forth in Section 3 of the M.A.
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1.24. "Equipment Fees" has the meaning set forth in Section 11.3.
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1.25. "First Cure Period" has the meaning set forth in Section 3.9.
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1.26. "First Implementation Right" has the meaning set forth in Section
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9.3.
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1.27. [*****]
1.28. [*****]
1.29. "In-Context Hyperlink" and "In-Context Hyperlinks" mean one or more
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hyperlinks to a hypertext document related to a specific HTML page or section
having a direct association to said hyperlink.
1.30. "Initial Team Size" has the meaning set forth in Section 3.1.
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1.31. "Intellectual Property Rights" means: (i) patents, patent
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applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice), including but not limited to any reissues,
continuations, continuations-in-part, divisions, revisions, extensions or
reexaminations thereof; (ii) domain names, trademarks, service marks, trade
dress, trade names, corporate names, logos and slogans (and all translations,
adaptations, derivations and combinations of the foregoing) and Internet domain
names, together with all goodwill associated with each of the foregoing; (iii)
copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; (v) trade secrets, confidential information
and know-how (including but not limited to ideas, formulae, compositions,
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, plans, proposals, technical
data, financial and accounting data, business and marketing plans, and customer
and supplier lists and related information); and (vi) all other intellectual
property rights (including but not limited to mask works).
1.32. "Interactive Service" and "Interactive Services" refer to the
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Internet, intranets and extranets and sites, portals, services and platforms
thereon; cable, cellular, wireless and two-way networks, interactive platforms
and services; and other technologies, means and modes for Disseminating and
receiving interactive content now known or hereafter developed.
1.33. "International ML Interactive Service" has the meaning set forth in
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Section 6.3.
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1.34. "Internet" means the Internet and any successor or ancillary
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network, including, without limitation, what is currently referred to as
Internet 2.
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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1.35. "Joint Development Project" and "Joint Development Projects" have
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the meanings set forth in Section 7.1.
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1.36. "Joint Development Work Project" shall have the meaning set forth
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in Section 19.2.
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1.37. "Licensed Software" has the meaning set forth in Section 8.1.
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1.38. "Licensee" has the meaning set forth in Section 17.2.
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1.39. "Licensor" has the meaning set forth in Section 17.2.
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1.40. "Look and Feel Project Plan" and "Look and Feel Project Plans" have
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the meaning set forth in Section 6.1.
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1.41. "Man Year" means the equivalent of working ten (10) hours a day and
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five (5) days a week for fifty-two (52) weeks a year; provided that when an
Employee is a Team Member, Man Year means the equivalent of working ninety-five
percent (95%) of the foregoing amount of time.
1.42. "Marks" has the meaning set forth in Section 17.1.
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1.43. "Master Agreement" has the meaning set forth in the recitals
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hereof.
1.44. "Master Templates" has the meaning set forth in Section 6.1.
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1.45. "Material Project" has the meaning set forth in Section 3.9.
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1.46. "Minimum License Fees" has the meaning set forth in Section 8.4.
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1.47. "ML" means Merrill Lynch, Pierce, Fenner & Smith Incorporated and
--
its affiliates worldwide.
1.48. "ML Custom Code" has the meaning set forth in Section 8.2.
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1.49. "ML Customer" and "ML Customers" mean one or more persons and
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entities who conduct transactions with ML directly or indirectly including,
without limitation, through an intermediary or affiliate, or persons or entities
who are Site Visitors (as such term is defined in Section 8.4). -----------
1.50. "ML Employees" means the employees and other agents of ML.
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1.51. [*****]
1.52. [*****]
1.53. "ML Global Retail Agreement" has the meaning set forth in Section
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2.2.
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1.54. "ML Institutional" means ML excluding ML Retail. ML Institutional
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includes, without limitation, the research, investment banking, asset management
and capital markets business of ML and any and all successors thereto and any
other businesses now or hereafter provided by the businesses units excluding ML
Retail.
1.55. "ML Institutional Customer" or "ML Institutional Customers" mean
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one or more ML Customers of ML Institutional.
1.56. "ML Institutional Service" and "ML Institutional Services" mean ML
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Interactive Services of ML Institutional.
1.57. "ML Institutional Users" means ML Institutional Customers and ML
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Employees of ML Institutional.
1.58. "ML Interactive Service" and "ML Interactive Services" mean one or
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more Interactive Services owned or used by ML.
1.59. [*****]
1.60. "ML International Retail Clients" means clients of one or more non-
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U.S. businesses of ML providing financial services but excluding ML
Institutional Customers.
1.61. "ML Relationship Manager" shall be the person designated by ML (and
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his or her successors) to coordinate and approve Project Plans on ML's behalf
and to work with Multex's Relationship Manager.
1.62. "ML Retail" means ML U.S. Retail Clients and ML International
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Retail Clients.
1.63. "ML Retail Customer" and "ML Retail Customers" refer to one or more
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ML Customers of ML Retail.
1.64. "ML Retail Users" means ML Retail Customers and ML Employees of ML
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Retail.
1.65. "ML U.S. Retail Clients" means clients of one or more U.S.
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businesses of ML providing financial services but excluding ML Institutional
Customers.
1.66. "ML User" and "ML Users" mean ML Customers, ML Institutional
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Customers and Employees of ML.
1.67. "Multex" means Multex and its affiliates and subsidiaries.
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1.68. "Multex Interactive Services" means Interactive Services owned or
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used by Multex but excluding ML Interactive Services.
1.69. "MultexNet.com Sites" has the meaning set forth in Section 14.1.
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1.70. "Multex Proprietary Software" means Multex Proprietary Software as
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defined in the M.A. and all other Multex software (including, without
limitation, Internet-related programming code) used to Disseminate research,
market data and financial information over Interactive Services and to operate
or to support the operation of Interactive Services and, subject to Section 9,
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New Products made during the Term hereof and all documentation therefor.
1.71. "Multex Relationship Manager" has the meaning set forth in Section
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3.1.
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1.72. "New Content Forms" has the meaning set forth in Section 5.1.
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1.73. "New Product" has the meaning set forth in Section 9.1.
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1.74. "New Product Development Project" has the meaning set forth in
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Section 9.1.
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1.75. "Non-Team Members" has the meaning set forth in Section 3.5.
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1.76. "Notice Period" has the meaning set forth in Section 16.1.
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1.77. "Other Multex Customer" and "Other Multex Customers" mean one or
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more customers or licensees of Multex other than ML.
1.78. "Output License" has the meaning set forth in Section 9.5.
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1.79. "Output Right" has the meaning set forth in Section 9.5.
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1.80. "Outside Consultant" and "Outside Consultants" mean one or more
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non- employee consultants, independent contractors and subcontractors (both
individuals and companies) or temporary employees engaged by Multex to work on
Projects or assist in the provision of Services hereunder, provided, however, no
person or entity shall be deemed to be an Outside Consultant unless such person
or entity executes confidentiality and nondisclosure agreements substantially in
the form set forth in Schedule 1.77.
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1.81. "Outside Consultant Cost" and "Outside Consultant Costs" mean
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actual compensation Multex paid to one or more Consultants for their work on one
or more Projects.
1.82. "Person" means an individual, a partnership, a corporation, an
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association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
1.83. "Pre-Existing Agreement" and "Pre-Existing Agreements" mean one or
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more of the following Service Requests, agreements and addenda to the M.A.
Agreements prior to the Addn-3 Effective Date:
1.83.1. The "ML Direct Agreement/TGA" means the ML Online/Multex
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Service Request dated as of February 28, 1997.
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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1.83.2. The "AskMerrill Agreement/MLOL" means the ML Online Trial Program
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Addendum dated as of October 29, 1999, as amended by Addendum No. 1 to Master
Agreement for Electronic Distribution Services dated as of July 1, 1999.
1.83.3. The "AskMerrill International Agreement" means the Second
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Addendum ML International AskMerrill.com International Trial Program dated as of
April 1, 1999.
1.83.4. The "SPDR Agreement" means the SPDR Service Request dated as of
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August 5, 1999.
1.84. "Pre-Existing Agreement Project" or "Pre-Existing Agreement
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Projects" mean one or more projects undertaken pursuant to a Pre-Existing
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Agreement.
1.85. "Project" and "Projects" mean one or more software development, web
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site development, integration, implementation projects and any other projects or
services which ML engages Multex to provide pursuant to the 1999 Master
Agreement.
1.86. "Project Plan" and "Project Plans" have the meaning set forth in
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Section 4.1.
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1.87. "Project Plan Amendment" has the meaning set forth in Section 4.1.
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1.88. "Project Plan Form" means the project plan form attached hereto as
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Exhibit B.
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1.89. "R&D Committee" has the meaning set forth in Section 9.4.
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1.90. "R&D Completion Date" has the meaning set forth in Section 9.2.
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1.91. "Recruiting Cost" has the meaning set forth in Section 3.7.
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1.92. "Release" has the meaning set forth in Section 9.2.
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1.93. "Relevant R&D" has the meaning set forth in Section 9.1.
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1.94. "Research" has the meaning set forth in Section 1(g) of the M.A.,
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as amended pursuant to Section 5.1 of the 1999 Master Agreement.
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1.95. "Revenues" has the meaning set forth in Section 13.1.
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1.96. "Revised Delivery Date" has the meaning set forth in Section 3.9.
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1.97. "Second Cure Period" has the meaning set forth in Section 3.9.
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1.98. "Services" means the work product, services and assistance to be
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provided by Multex to ML hereunder including, without limitation, aggregation
and Dissemination of Research and related content (including, without
limitation, financial information, news and data) ("Dissemination Services");
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software and Internet-related development services, database management and
administration services; hosting, testing, maintaining and repairing Web Sites;
Data and Equipment
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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Services, and in addition to the foregoing, procuring hardware and software
rights, including maintenance and support therefor, for ML as set forth in the
1999 Master Agreement.
1.99. "Site Customers" has the meaning set forth in Section 8.4.
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1.100. "Site Prospects"has the meaning set forth in Section 8.4.
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1.101. "Site Visitors" has the meaning set forth in Section 8.4.
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1.102. "SLA" has the meaning set forth in Section 6.6.
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1.103. "Software License" has the meaning set forth in Section 8.l.
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1.104. "Software Project" and "Software Projects" have the meaning set
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forth in Section 7.1.
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1.105. "Standard Institutional License Fee Rate" has the meaning set
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forth in Section 8.4.
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1.106. "Standard Project Rate" has the meaning set forth in Section 3.9.
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1.107. "Team Member" and "Team Members" have the meaning set forth in
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Section 3.1.
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1.108. "Term" has the meaning set forth in Section 20.1.
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1.109. "Third Party" means a person or entity other than Multex or ML.
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1.110. "Third Party R&D" has the meaning set forth in Section 9.1.
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1.111. "Third Party Software" means software owned by a Third Party or
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licensed to a Third Party from another Third Party.
1.112. "Third Party Software Fees" has the meaning set forth in Section
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11.2.
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1.113. "Transition Services" has the meaning set forth in Section 20.4.
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1.114. "Transition Services Period" has the meaning set forth in Section
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20.5.
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1.115. "Upgrades" means one or more error corrections, bug fixes and
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minor enhances to software and documentation.
1.116. "Use" means use, install, operate, run, copy, integrate, deploy,
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distribute, transmit, display, perform, correct, modify, make available, prepare
derivative works within the meaning of Title 17 of the United States Code, and
integrate software or Web features into ML's software or ML Interactive Services
and use, install, copy, correct and modify as necessary for temporary use at a
backup or disaster recovery location during the pendency of a disaster,
emergency or persistent equipment failure.
1.117. [*****]
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1.118. "Web Site" and "Web Sites" mean one or more web sites, World Wide
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Web sites, intranet and extranet sites or pages (including, without limitation,
co- branded sites, affiliated sites and jump pages).
1.119. "Year 1" means the period commencing upon the Addn-3 Effective
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Date and ending on December 31, 2000. Each subsequent "Year" begins on January 1
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and ends on December 31 of the next successive calendar years during the Term.
By way of example, "Year 2" means January 1, 2001 to and including December 31,
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2001; "Year 3" means January 1, 2002 to and including December 31, 2002; "Year
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4" means January 1, 2003 to and including December 31, 2003; and "Year 5" means
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January 1, 2004 to and including December 31, 2004.
2. Pre-Existing Agreements and Continuation of Rights
2.1. Each Pre-Existing Agreement, as its provisions may be amended or
superseded by the 1999 Master Agreement, shall continue in full force and effect
to the end of its current term (as such term is set forth in each such
agreement). ML shall have the right, but not the obligation, to enter into an
extension or renewal of any of the AskMerrill Agreement/MLOL, the AskMerrill
International Agreement and/or the SPDR Agreement that will have a one-year or
multi-year period and will grant prospective customers of ML Retail the rights
set forth in the Software License, provided that, the term and the fees payable
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to Multex under the AskMerrill Agreement/MLOL, the AskMerrill International
Agreement and/or the SPDR Agreement and any other amended terms shall be
mutually agreed upon.
2.2. ML shall have the right, prior to September 1, 2001, to enter into
an agreement (the "ML Global Retail Agreement") that will have a term ending on
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the last day of the Addn-3 Initial Term except that it shall include the right
to Transitional Services the same as those set forth in Section 20 so long as ML
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pays the fees for such Transitional Services under the ML Global Retail
Agreement. In addition, the ML Global Retail Agreement will grant ML Retail and
ML Retail Users (but not prospective customers) the right to receive the
Services governed by the AskMerrill Agreement/MLOL and the ML Direct
Agreement/TGA and other Services and Projects as the Parties may agree on the
following terms: Multex will grant ML Retail and ML Retail Users (but not
prospective customers) the same rights set forth in the Software License in
exchange for a minimum annual payment of [*****] for up to [*****] ML Retail
Users (but not prospective customers) and an annual fee of [*****] for each such
additional ML Retail User in excess of [*****], if any. Multex shall provide
Projects and Services to ML Retail as provided in Addn-3 in exchange for payment
by ML at the Standard Project Rate. If entered into, ML shall have the right,
during the last six (6) months of the term of the ML Global Retail Agreement to
renew or extend the ML Global Retail Agreement for a period up to the end of the
Term of Addn-3.
3. [*****]
3.1 [*****]
3.2 [*****]
3.3. The Parties acknowledge and agree that the full consideration to be
received by Multex from ML for Services and Projects governed by any Pre-
Existing Agreement is as set forth
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
in such Pre-Existing Agreement. Without limiting the foregoing, and for the
avoidance of doubt, the Parties acknowledge and agree that Multex has and shall
have no right to receive payment at the Standard Project Rate or any payment
other than the consideration provided in any governing Pre-Existing Agreement
for work under such Pre-Existing Agreement.
3.4. If ML desires to receive Services and Projects that are outside the
scope of the Pre-Existing Agreements, such Services and Projects will be
governed by this Addn-3, and ML shall pay Multex for them at the Standard
Project Rate.
3.5. If ML reasonably requires Multex to perform one or more Projects
that are beyond the capacity of the then-current [*****] Team ("Additional
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Projects"), Multex shall perform such Additional Projects using Employees and
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Outside Contractors who are not then Team Members ("Non-Team Members") [*****].
----------------
3.6. Multex agrees to acquire and maintain sufficient equipment and
dedicate the Team Members and Non-Team Members and the other resources necessary
to insure timely completion of each Project in accordance with the governing
Project Plan[*****].
3.7. During the Addn-3 Initial Term, ML shall reimburse one hundred
percent (100%) of the actual recruiting costs (without mark-up of any kind) that
Multex paid to hire a new Employee to serve as Team Member ("Recruiting Cost")
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who begins work as a Team Member within forty-five (45) days of his or her first
day of employment by Multex. If such new Employee did not serve as a Team Member
for at least a consecutive twelve (12) month period for any reason [*****],
Multex shall promptly reimburse the Recruiting Cost paid by ML in connection
with that Employee on a pro rata basis for the time not spent serving as a full-
time Team Member during that period. The total amount of Recruiting Costs that
ML shall be obligated to pay pursuant to this Section shall not exceed $500,000.
Each new Employee shall receive sufficient training from Multex (at Multex's
expense) to serve as a Team Member before beginning work as a Team Member,
provided that Multex shall have no obligation to provide more than thirty (30)
days of training. Multex will use reasonable efforts to staff the [*****] Team
with Team Members who have the qualifications and experience to meet the
requirements of the Projects and ML's development requirements and to maintain a
[*****] Team whose Team Members are at least equal in skill level of Multex's
software developers and operational staff [*****] in general.
3.8. ML shall pay Multex for work by its Employees and Outside
Consultants in performing each Project and Services as follows: (a) the Actual
Salary, Bonus, Employee Benefit Costs and the Employee Overhead Costs for each
Employee working on the Projects; and (b) the Outside Consultant Costs for each
Consultant working on the Projects.
3.9. When a Project to be conducted under a Project Plan is estimated to
take more than ninety (90) days to complete and cost more than $200,000, that
Project shall be deemed a "Material Project." The Parties shall mutually agree
-----------------
upon a reasonable delivery date for such Material Project, to be set forth in
the Project Plan governing such Material Project (the "Delivery Date"). Such
-------------
Delivery Date may be changed by mutual agreement of the Parties pursuant to an
Project Plan Amendment (the "Revised Delivery Date," if any). A Material Project
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shall be deemed to be
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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completed when it is delivered to ML and satisfies the requirements of the
governing Project Plan. In the event that a Material Project is not completed by
the Delivery Date, or as applicable, Revised Delivery Date, Multex shall have an
initial cure period equal to fifteen (15%) of the Project Length (the "First
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Cure Period"). During said First Cure Period, ML shall pay Multex for work to
- ------------
complete such Material Project at the Standard Project Rate. In the event Multex
does not complete the Material Project within the First Cure Period, Multex
shall have thirty (30) calendar days to complete the Material Project (the
"Second Cure Period"). During the Second Cure Period, Multex shall make best
------------------
efforts to complete the Material Project and ML shall pay Multex the Actual
Salary and/or Outside Consultant Cost for Employees and Outside Contractors
performing work on such Material Project without any mark-up or overhead costs.
In the event Multex does not complete the Material Project within the Second
Cure Period, ML may elect one of the following and shall so notify Multex within
ten (10) business days after the Second Cure Period: (a) require Multex complete
the Material Project at Multex's sole expense (ML shall incur no further costs
in having the projected completed) or (b) terminate the Material Project and the
governing Project Plan. In the event ML elects to terminate fifteen (15%) or
more of the Material Projects entered into within any twelve (12) month period
for failure to complete the Material Projects within said Second Cure Period, ML
shall have the right to terminate the 1999 Master Agreement. The method of
calculating payments in Sections 3.8 and 3.9 shall be referred to as the
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"Standard Project Rate."
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3.10. Each Party agrees that it will not directly through another person
or entity, (i) induce or attempt to induce any employee of the other Party to
leave the employ of the other Party, or in any way interfere with the
relationship between the other Party and any employee thereof, and/or (ii) hire
---
any person who was an employee of the other Party at any time during the Term,
and if there is one, during the Transition Services Period, and for the twelve
(12) month period following the later of the last date of the Term or the
Transition Services Period. If, at the time of enforcement of this Section 3.10,
------------
a court shall hold that the duration, scope or other restrictions stated herein
are unreasonable under circumstances then existing, the Parties agree that the
maximum duration, scope or other restrictions deemed reasonable under such
circumstances by such court shall be substituted for the stated restrictions
contained herein.
4. Project Plans
4.1. Except for work or Services provided pursuant to a Pre-Existing
Agreement, Multex shall be obligated to perform Projects and Services pursuant
to Project Plans incorporating the terms agreed to herein and as otherwise
agreed to and signed by the Parties (and signed or co-signed by the ML
Relationship Manager on behalf of ML). Upon execution by both Parties, each
Project Plan shall be deemed part of and governed by the 1999 Master Agreement.
- ------------
All material modifications or supplements to a Project Plan require the mutual
agreement of the Parties and shall be effective only after embodied in a writing
executed by the Parties (a "Project Plan Amendment"). The term "Project Plan"
----------------------
includes the Project Plan and each Project Plan Amendment thereto, and the term
"Project Plans" means more than one Project Plan. In the event of conflict
-------------
between the 1999 Master Agreement and a Project Plan, the 1999 Master Agreement
shall govern. For the avoidance of doubt all references under the 1999 Master
Agreement to "Project Plan(s)" shall refer to Project Plans entered into
pursuant to this Section and mutually agreed to and signed by the Parties and
the ML Relationship Manager on behalf of ML.
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4.2. Each Project Plan shall be substantially in the Project Plan Form
attached as Exhibit B hereto and shall include with respect to the Project it
---------
governs: (a) the scope of Services to be provided; (b) the Delivery Date; (c) an
estimated budget; (d) the governing specifications and requirements; (e) the
acceptance criteria, and if the Parties so provide, the acceptance or testing
procedures; (f) the documentation to be provided and the requirements therefor,
if any; (g) the training to be provided by Multex to ML, if any; (h) a detailed
description of the work to be performed by ML, if any; and (i) such other terms
agreed upon by the Parties.
5. Research
5.1. From time to time during the Term hereof, ML will develop new
Research and content and new types and forms of content, interactive content and
features and content vehicles (such as, by way of example only, models,
conference calls, and audio and/or video technology) (the "New Content Forms").
-----------------
At the request of ML, Multex will use commercially reasonable efforts to
promptly integrate (pursuant to a Project Plan) and Disseminate the same through
ML Interactive Services. Subject to Multex's pre-existing contractual
obligations and applicable law, Multex will provide ML with prompt notice of New
Content Forms disclosed or contributed to Multex by Other Multex Customers
(provided that Multex shall not be required to identify the name of such Other
Multex Customers) and the opportunity to develop similar New Content Forms for
Dissemination by Multex. Prior to Dissemination, New Content Forms identified or
disclosed by ML to Multex shall be deemed Confidential Information of ML. Upon
Dissemination, such New Content Forms shall be subject to the provisions of this
Section, and shall be deemed part of "Research" under the M.A. The Parties
- -------- agree that New Content Forms shall not be deemed New Products
hereunder. Multex shall not, either before Dissemination or after, disclose or
identify to Third Parties that particular New Content Forms were disclosed or
identified to Multex by ML, provided, however, that the provisions of this
sentence shall not prohibit Multex from disclosing the same or substantially New
Content Forms to others if they were also disclosed to Multex by a Third Party.
Notwithstanding anything to the contrary contained herein, nothing shall limit
or prevent Multex from Disseminating New Content Forms to Third Parties.
6. Web Site Development; International Projects and Web Hosting
6.1. With ML's assistance, Multex shall develop one or more master
templates for the implementation ("Master Templates") of the certain look and
----------------
feel features for ML Interactive Services. Each such template shall be developed
pursuant to a Project Plan (a "Look and Feel Project Plan" and together, the
--------------------------
"Look and Feel Project Plans").
---------------------------
6.2. At ML's request, and pursuant to applicable Project Plans, Multex
will enhance, develop or create ML Interactive Services.
6.3. Multex will develop ML Interactive Services for use by ML Customers
and others in Japan, Germany, Spain, France, Italy and other foreign countries
to be determined by the Parties from time to time in accordance with the
schedule agreed upon by them and pursuant to Project Plans (each an
"International ML Interactive Service" and collectively the "International ML
------------------------------------ ----------------
Interactive Services"). Each of the International ML Interactive Services shall
- --------------------
be accessible by
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persons or entities from different countries in the world as may be specified in
the governing Project Plan. In accordance with the terms hereof, Multex will
retain a sufficient number of Employees or Outside Consultants who have the
requisite skills to build and localize such Interactive Services for the
applicable country or countries, and may place such Employees or Outside
Contractors in its offices in foreign countries as necessary to provide such
services. Such Employees may be Team Members or Non-Team Members as the Parties
shall determine from time to time. The Parties shall consult and discuss with
each other in good faith from time to time regarding expanding their
international Interactive Services containing global content whenever their
strategic and practical objectives coincide, and enter into Project Plans as may
be mutually agreed upon with respect thereto including without limitation
sharing costs and infrastructures. The Parties may consult with each other with
respect to possible joint ventures or cooperative projects internationally.
6.4. At ML's request, and pursuant to applicable Project Plans, Multex
shall develop Interactive Services (or pages or sections of Web Sites) at the
Standard Project Rate for ML Institutional Customers designated by ML, provided
that such ML Institutional Customers enter into agreements with Multex regarding
the same or enter into an agreement approved by Multex with ML regarding the
same.
6.5. ML shall pay Multex for Projects and Services at the Standard
Project Rate unless, the Parties mutually agree in writing to share costs such
as, without limitation, overhead, content, development and outside services
pursuant to Section 6.3.
-----------
6.6. Multex shall provide Web hosting and necessary related services for
ML Interactive Services in exchange for the fees set forth in applicable Project
Plans and in accordance with the terms and conditions set forth in such Project
Plans and a Service Level Agreement (the "SLA") and other agreements, as
---
applicable. The Parties agree to enter into good faith negotiations regarding
the first such Service Level Agreement promptly after the execution of this
Addn-3. Upon execution by both Parties, the SLA shall be deemed part of and
governed by the 1999 Master Agreement. In the event of a conflict between the
1999 Master Agreement and the SLA, the 1999 Master Agreement shall govern. In
the event of a conflict between the SLA and a Project Plan, the SLA shall
govern.
7. Software Development Projects
7.1. At ML's request and pursuant to a Project Plan, Multex shall
undertake one or more Projects to: (a) develop new software in whole or in part;
(b) enhance or develop new versions or new releases to Multex Proprietary
Software or other software; (c) engage in software development projects to
correct, enhance, upgrade or develop new versions or new releases of ML
Interactive Services or add new features to ML Interactive Services (one of the
foregoing, a "Software Project" and more than one, "Software Projects"). The
---------------- -----------------
Parties may agree to enter into a joint development project to develop a
Software Project (one, a "Joint Development Project" and more than one, "Joint
------------------------- -----
Development Projects").
- --------------------
7.2. [*****]
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7.3. [*****]
7.4. ML shall pay for Customized Software development at the Standard
Project Rate.
7.5. [*****]
8. Software License
8.1. Subject to the terms hereof, Multex agrees to and hereby does grant
to ML Institutional a non-exclusive license throughout the universe under
Multex's Intellectual Property Rights to Use the Multex Proprietary Software,
Customized Software, [*****], New Products other software developed hereunder
and Third Party Software incorporated in or required to be used in conjunction
with any of the foregoing software (provided that ML pays licensee fees and/or
complies with the terms of an conditions of use associated therewith or enters
into agreements with Third Party Software vendor as may be required by such
vendor) and all Upgrades made thereto during the Term hereof in object code (the
"Licensed Software"), with the right to sublicense the right to use the same to
-----------------
ML Institutional Customers as necessary for them to use one or more ML
Interactive Services and in accordance with provisions in an agreement entered
into by ML Institutional Customers with ML with respect to such use satisfactory
to Multex (the "Software License").
----------------
8.2. Multex shall have no right to license the use of Customized Software
to Third Parties until after the expiration of the six (6) month period that
begins upon the Acceptance by ML of such Customized Software. During such six
(6) month period, Multex shall have the right to create a separate software
package that includes features and functionality of the Customized Software,
provided that (a) Multex does not use the same or substantially similar
- --------
programming code that it used to implement such features and functionality in
the Customized Software ("ML Custom Code"), and (b) that the Employees or
--------------
Outside Consultants of Multex who develop any such separate software package do
not have access to the ML Custom Code and do not receive information from or
discuss the ML Custom Code with any of the Team Members or Non-Team Members who
were involved in the creation or development of the ML Custom Code in whole or
part and thereafter Multex shall have no limitations or restrictions with
respect to such Customized Software, subject to the other terms and conditions
of the 1999 Master Agreement.
8.3. [*****]
8.4. Persons and entities who use an ML Institutional Interactive
Services who have not been qualified to access any portion of the Multex
Propriety Software under ML's entitlement process shall be referred to as "Site
Visitors." Site Visitors who have been qualified to access any portion of the
-------------
Multex Propriety Software under ML's entitlement process to have access to
Research on ML Institutional Interactive Services on a trial basis and for a
period of time not to exceed sixty (60) days shall be referred to as "Site
----
Prospects." The Parties agree that the number of Site
- ---------
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Prospects shall not exceed five thousand (5,000) at any one time. Site Prospects
who are ML Institutional Customers and who have been granted the right by ML to
have access to Research through ML's Interactive Services for longer than sixty
(60) days shall be referred to as "Site Customers." [*****] The method of
---------------
calculating the license fee in this section shall be referred to as the
"Standard Institutional License Fee Rate."
---------------------------------------
8.5. Multex shall provide Help Desk services, correct software errors,
bugs and deficiencies and support and maintain the Licensed Software and Web
Sites and provide Dissemination Services, all in accordance with and as provided
in the SLA.
9. Output License
9.1. The Parties acknowledge and agree that Multex is, and during the
Term will be engaged in product planning, product development and research on
development (the "Relevant R&D") to develop new versions, new releases and
------------
substantial improvements of or to the Multex Proprietary Software, Multex's
Interactive Services and Multex's existing platform technology related to the
foregoing and to develop new and improved software and software and Internet
products, features and functionality to be used in the creation, organization,
Dissemination and other display of investment research and related information,
analysis and data ("New Product" and "New Products," as appropriate). The
----------- ------------
project or projects in which Multex engages to create a New Product or New
Products shall be referred to as "New Product Development Project" and "New
------------------------------- ---
Product Development Projects," as appropriate. [*****]
- ----------------------------
9.2. Within thirty (30) days after the Addn-3 Effective Date and
thereafter from time to time, Multex will provide ML with information regarding
pending New Product Development Projects including, without limitation, a
description of the intended New Product, a summary of the development work to
date, and the anticipated dates when beta testing and when release, roll-out,
implementation or live launch ("Release") will occur. During the Term hereof,
-------
Multex shall provide the same types of information as each New Product
Development Project is planned, designed or initiated. ML, at its option, shall
have the right to participate in beta testing of New Products [*****]. The date
when beta testing, if applicable, and other research and development (excluding
minor corrections or improvements) is completed shall be referred to as an "R&D
---
Completion Date." [*****]
- ---------------
9.3. [*****]
9.4. Within thirty (30) days of the Addn-3 Effective Date, the Multex
management will establish a technical and research and development committee
(the "R&D Committee") to review, establish goals and schedules and direct
-------------
Multex's research and development efforts, including, without limitation, with
respect to New Products. The R&D Committee will meet at least once during each
fiscal quarter, and ML has the right to have one of its employees serve as a
full R&D Committee member. Multex has the right to approve ML's designated
Committee member, which right it will exercise reasonably.
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9.5. The rights granted ML in Sections 9.1-9.5 inclusive shall be
----------------
referred to as the "Output Right." As consideration for the Output Right, and
------------
subject to the terms, conditions and limitations herein, ML shall pay Multex a
license fee (the "Output License") at the rate of [*****] per year in each of
--------------
Years 1, 2, and 3, and at the rate of [*****] in each remaining Year in the Term
on a pro- rata basis.
10. API License
10.1. The Software License includes ML Institutional's right to Use the
published interface, documentation and sample code for application program
interfaces or their equivalent in the Licensed Software and all upgrades and
other modifications thereto (each an "API" and one or more the "APIs") for the
--- ----
purpose of modifying, incorporating in and using the Licensed Software in
conjunction with ML's software and the ML Interactive Services during the Term
and Transition Services Period. At the end of each fiscal quarter during the
Term and Transition Services Period, Multex shall deliver all then existing APIs
to the Licensed Software to ML. Multex will deliver, and if requested by ML,
create APIs at other times at ML's request and in exchange for ML's payment at
the Standard Project Rate. Subject to Multex's rights and any limitations
thereto, including, without limitation, any restriction against selling or
licensing such the APIs to Third Parties, ML Institutional has the right to Use
the APIs for and in the course of its businesses (including, without limitation,
ML Interactive Services) and for and in connection with its provision of
services and products to ML Institutional Users and Third Parties, including,
without limitation, businesses, services and products of ML that may be created
or offered in the future.
10.2. The Parties agree to enter into a mutually satisfactory software
source code escrow agreement promptly after the Addn-3 Effective Date.
11. Data, Third Party Software, Equipment and Other Payments
11.1. As payment for Third Party data feeds, content products, or content
services (the "Data Feeds") provided to ML by Multex at ML's request as part of
----------
the Services, ML will pay Multex the actual cost paid by Multex to the vendor
for such Data Feeds and, with respect only to Data Feeds for which use began
after the Addn-3 Effective Date, an additional amount equal to [*****] (the
"Data Fees"). ML will pay its pro-rata share of associated Employee expenses for
- ----------
the maintenance and support of the product or service at the Standard Project
Rate.
11.2. As payment for each unit of Third Party Software (including
maintenance fees therefor, if any) provided to ML by Multex at ML's request as
part of the Services, ML will pay Multex the actual cost paid by Multex to the
vendor for such Third Party Software and, with respect only to Third Party
Software for which use began after the Addn-3 Effective Date, an additional
amount equal to [*****] (the "Third Party Software Fees").
-------------------------
11.3. For each unit of Equipment that is acquired by Multex on ML's
behalf during the Term as part of the Services, ML shall pay Multex the actual
cost paid by Multex to the vendor for such unit of Equipment and the direct
service and maintenance therefor and, with only with respect to Equipment
acquired after the Addn-3 Effective Date, an additional amount equal to [*****]
(the
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"Equipment Fees"). If such Equipment, if any, has a book value in excess of zero
--------------
dollars at expiration or termination of Addn-3 for any reason, ML shall have the
right to purchase such Equipment at book value.
11.4. ML shall pay Multex's actual costs incurred in connection with
performing its obligations under the 1999 Master Agreement, including Project
Plans, not otherwise covered in the Master Agreement and this Addn-3 plus a
mark-up to be mutually agreed upon by the Parties, provided, however, that in
the absence of handling or maintenance costs for such items, the minimum mark-up
shall be [*****].
11.5. The Services provided pursuant to Sections 11.1-11.4 inclusive
------------------
shall be referred to as the "Data and Equipment Services" and the payments
---------------------------
therefor as the "Data and Equipment Fees."
-----------------------
11.6. ML will reimburse Multex for all reasonable out-of-pocket expenses
(without mark-up) (e.g., out-of-pocket expenses for travel, meals and lodging)
incurred in connection with the provision of the Services pursuant to ML's
standard reimbursement policy.
12. Monthly Retainer and Monthly Reports
12.1. ML shall make monthly payments and Multex shall issue monthly
reports pursuant to the provisions of Schedule 12.
-----------
13. Revenues
13.1. ML will pay Multex "Revenues" (as such term is defined herein) of
--------
at least [*****] in each Year of the Term. "Revenues" means all payments, fees,
--------
expenses, reimbursements (excluding any reimbursements that do not include a
mark-up under the 1999 Master Agreement (e.g., reimbursements for out-of-pocket
costs and expenses)) and each and every payment of any type made by ML,
including, without limitation, payments of any type made to Multex in connection
with the Pre-Existing Agreements and all renewals and extensions thereof (if
any) and the Global Retail Agreement, if entered into, payments made by ML to
Multex as payments for fees on behalf of or that would be otherwise owed by an
ML Customer, all of which will be counted on an accrued basis, and provided that
--------
Year 1 shall be deemed the first year of the Term, and provided, further that
-------- -------
for the purposes of this Section, Revenues and all other costs, including,
without limitation, for Services completed but not invoiced to ML for Services
performed prior to the Addn-3 Effective Date (and including without limitation
equipment acquired on behalf of ML by Multex and the costs of associated
maintenance, services and setup fees). [*****]
14. Sponsorship and Marketing
14.1. During the Addn-3 Initial Term hereof, Multex will maintain
sponsorship link-back In-Context Hyperlinks from the MultexNet.com site and any
successor institutional Interactive Service and equivalent international sites
(together with Multex's co-mingled products for institutional investors, the
"MultexNet.com Sites") to ML Institutional Interactive Services, and ML shall
- --------------------
place an In-Context HyperLink from ML Institutional Interactive Services to
MultexNet.com Sites (so long as ML's link-back is active and in place). To the
extent ML Customers linking to
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MultexNet.com Sites from ML Institutional Interactive Services are Multex
subscribers, they shall have available to them (without additional
authentication) In-Context Hyperlinks and navigation feature sets displayed
around Research or content from one or more financial institutions in such
manner as to enable a ML User to return to a page and content level in the ML
Institutional Interactive Service designated by ML from time to time hereunder.
ML shall have the option to tier the commingled research seen by ML Customers
but not to alter or affect Multex's entitlement process in any way. If the ML
User is not a current Multex subscriber, then Multex, subject to ML's approval,
may display an up-sell message for the Multex subscription service to such ML
User. A ML Institutional User accessing one of the MultexNet.com Sites where ML
Research or content is displayed (on a delayed basis) shall have available to
him or her an In-Context Hyperlink labeled with a mutually agreed upon ML
hyperlink that enables that ML User to link directly in- context to the
applicable ML Institutional Interactive Service. If that active link is
unavailable, then an up-sell message for the ML Interactive Service shall be
displayed. [*****]
14.2. ML Customers who link from a ML Interactive Service to the
MultexNet.com Sites shall receive a thirty (30) day free subscription (provided
that Multex is offering subscriptions at such time) to Research and content on
those Multex Interactive Services. Each such ML Customer shall have the right to
view Multex's premium services accessible over the MultexNet.com Sites at
Multex's standard pay-per-view, or rates, at ML's option, ML shall pay Multex
for the ML Customers' access to the premium services. [*****]
14.3. [*****]
15. Customer Data
15.1. For purposes hereof, "Customer Data" means all data and information
-------------
that is captured or recorded with respect to or during any person's or entity's
use of or access to an Interactive Service. Each Party will own Customer Data
collected on its own Interactive Services.
15.2. Each Party may make limited use or take limited action with respect
to Customer Data of the other Party only as is necessary to fulfill its
obligations hereunder and for no other purpose, including, without limitation,
using such information for marketing purposes for such party.
15.3. Subject to contractual or legal obligations, Multex shall provide
ML with monthly reports, in such form and manner as agreed to by the Parties,
and shall provide the software, Internet and other Interactive Services tools
required for viewing and analyzing the same at ML's cost including without
limitation reports equivalent to the reports customarily generated and/or
provided to Other Multex Customers and reports agreed to by the Parties pursuant
to a Project Plan. The Customer Data from ML Interactive Services shall include,
without limitation, reports of visitor usage and patterns, pages and Research
reports read or accessed by ML Users.
16. Change of Control
16.1. Not less than thirty (30) days (the "Notice Period") before Multex
-------------
enters into a written agreement in connection with a "Change of Control" (as
-----------------
defined below) of Multex, Multex shall provide notice of such proposed Change of
Control to ML and ML shall be required to give
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notice to Multex during the Notice Period indicating whether it will remain a
party to the 1999 Master Agreement or whether it will terminate the 1999 Master
Agreement upon the effective date of the Change of Control. In the event Multex
fails to provide notice as required herein, ML shall have the right to terminate
the 1999 Master Agreement at any time during the thirty (30) day period
commencing on the date ML receives knowledge of (a) the occurrence of the Change
of Control or (b) the execution of the written agreement bringing about or
causing a Change of Control. If ML exercises its right pursuant to this section
to terminate the 1999 Master Agreement, Multex shall provide the Transition
Services, [*****].
16.2. As used herein, "Change of Control" means the occurrence of any of
----------------
the following: (a) the sale, lease, transfer, conveyance or other disposition,
in one or a series of related transactions, of all or substantially all of the
assets of Multex other than to a wholly owned subsidiary; (b) the consolidation
of Multex with another person or entity or the merger of Multex into another
person or entity or of another person or entity into Multex, or any such similar
event pursuant to a transaction in which 50% of the voting shares of Multex are
changed into or exchanged for cash, securities, or other property (other than
any such transaction where the holders of the voting shares of Multex
immediately prior to such transaction own, directly or indirectly, not less than
a majority of the voting shares of the surviving or resulting person or entity
immediately after such transaction); (c) the adoption of a resolution or plan by
the shareholders of Multex concerning the liquidation, dissolution or winding up
of Multex; (d) the consummation of any transaction or series of related
transactions (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as such term is used in Section 13(d)(3)
------ ----------------
of the Securities Exchange Act of 1934 (the "Exchange Act")) (other than Multex,
-----------------
any trustee or other fiduciary holding securities under an employee benefit plan
of Multex, or any corporation owned, directly or indirectly, by the shareowners
of Multex in substantially the same proportion as their ownership of stock of
Multex) is or becomes the "beneficial owner" (as such term is defined in Rule
----------------
13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more
than 30% of the voting shares of Multex; or (e) during any two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors, and any new director whose election by the Board of Directors or
nomination for election by Multex's shareowners was approved by a vote of at
least a majority of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a majority
thereof. For purposes of this definition, any transfer of an equity interest of
an entity that was formed for the purpose of acquiring voting shares of Multex
will be deemed to be a transfer of such portion of such voting shares as
corresponds to the portion of the equity of such entity that has been so
transferred.
17. Trademark Restriction
17.1. ML hereby grants to Multex a non-exclusive, royalty-free, worldwide
license to use logos, trade names, trademarks, designs, trade dresses, slogans
and service marks, in word, stylized and design formats (the "Marks")
-----
proprietary to ML for the purpose of identifying content as part of the
provision of the Services as contemplated by the 1999 Master Agreement and as
otherwise required pursuant to the 1999 Master Agreement solely in connection
with the marketing, advertising and operation of the Service as it relates to ML
and only to the extent authorized by the
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1999 Master Agreement. Multex hereby grants to ML a non-exclusive, royalty-free,
worldwide license to use the Marks proprietary to Multex in any marketing,
advertising, website links or other promotional materials solely in connection
with the marketing and advertising of the Services provided by Multex to ML.
17.2. Each Party ("Licensee") shall use and display the other Party's
--------
("Licensor") Marks licensed hereunder in accordance with the Licensor's rules
--------
governing usage of its Marks as may be prescribed by the Licensor from time to
time. Licensee agrees that it shall modify, or cause to be modified, to
Licensor's sole satisfaction, the use of any Licensor Marks hereunder that
Licensor, in its sole discretion, may object. Any intended use by Licensee of
any Licensor Marks in any regional or national advertising campaign or any press
release shall be submitted to Licensor for approval. Licensee shall not do or
suffer to be done any act or thing that would impair Licensor's rights in the
Licensor Marks or damage the reputation for quality inherent in the Licensor
Marks. Each Party acknowledges and agrees that: (a) the Licensor and its vendors
and suppliers, if any, are the exclusive owners of the Licensor's Marks; (b) the
use of the Licensor's Marks by the Licensee does not convey to the Licensee any
right, title or interest in or to the Licensor's Marks; (c) the Licensee may not
contest the Licensor's Marks, or register or attempt to register in any
jurisdiction any Licensor Mark or any confusingly similar trademark or trade
name; (d) the Licensee may not use the Licensor's Marks with respect to any
products, services or materials not provided by the Licensor, or in any way
which might result in confusion as to ML, Multex, or any Third Party being
separate and distinct entities; and (e) the Licensee's use of the Licensor's
Marks, including all goodwill associated with such use, shall inure solely to
the benefit of the Licensor. Each Party warrants to and for the benefit of the
other Party that its marks do not infringe upon the rights of any Third Party
including, without limitation, any rights under trademark or unfair competition
law.
17.3. The Licensee will amend its usage of any trademark of Licensor at
the direction of the Licensor. Failure to modify trademark usage as per
Licensor's instructions shall result in termination of Licensee's right to use
any trademark of Licensor.
18. Transfer of URL
18.1. Multex hereby assigns and transfers all of its right, title and
interest in the Internet domain name www.themarkets.com, and all trademark and
other Intellectual Property Rights associated therewith to ML pursuant to the
Domain Agreement attached hereto as Schedule 18. ML agrees to transfer the same
-----------
back to Multex if ML does not make use of such domain name during Year 1.
19. Intellectual Property Rights
19.1. The Look and Feel Project Plan shall include, without limitation,
the Intellectual Property Rights and other rights owned by ML in the "look and
--------
feel" (i.e., the overall design, assignment of elements, organization color
- ----
scheme, and navigation when viewed as a whole (excluding programming code and
technology and Intellectual Property Rights relating thereto) (the "ML Look and
-----------
Feel IP") (a) of the existing ML Interactive Services developed under the Master
- -------
Agreement, and (b) in the Master Template and Interactive Services to be
developed under the Look
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and Feel Project Plans (the "ML Look and Feel"). Multex acknowledges and agrees
----------------
that ML shall be the owner of all right, title and interest in and to the ML
Look and Feel IP, including, but not limited to, all Intellectual Property
Rights therein.
19.2. Unless the Parties otherwise expressly agree in the governing
Project Plan, each Party shall own an undivided one-half interest in the work
product and Intellectual Property Rights therein resulting from a Joint
Development Project. Such work product and Intellectual Property Rights shall be
referred to as "Joint Development Work Product" and ML's rights in the same as
------------------------------
"ML's Joint Development Work Product."
-----------------------------------
19.3. Except as provided in Section 19.2 and in the Master Agreement, and
------------
with respect to ML's rights in the ML Look and Feel IP as provided in Section
-------
20.1, unless the Parties otherwise expressly agree in the governing Project
- ----
Plan, and subject to the licenses and rights granted in the 1999 Master
Agreement and the other terms and conditions thereof, Multex shall own all
right, title and interest in the Licensed Software and all Intellectual Property
Rights therein, and if and to the extent that or ML or its Employees or agents
acquire any rights in or to such Licensed Software or Intellectual Property
Rights, ML shall, or shall cause its Employees or agents to, promptly assign
such rights to Multex. To the extent, if any, Multex obtains ownership of any
inventions or any Letters Patent in the United States or any other country in
any Joint Development Work Product or in any other deliverable or other work
product created under the 1999 Master Agreement for which an ML Employee is an
inventor or in which ML has ownership rights, Multex agrees to grant to ML, for
no additional consideration, a perpetual (or the longest period otherwise
permitted by law), irrevocable, royalty-free, worldwide, non-exclusive license
with the right to grant sublicenses under such patents and any other U.S. or
foreign patent issuing from applications that rely on any such patent for
priority to make, use, sell, offer for sale, and import inventions covered
thereby.
19.4. Multex shall take reasonable steps to prevent premature publication
or disclosure of patentable subject matter by its Employees, Outside Contractors
or others that would interfere with the ability to seek and obtain patent and
other intellectual property protection. Multex will adopt procedures
satisfactory to ML to prevent unauthorized access to or Dissemination of source
code and technology.
19.5. Multex agrees to and hereby does irrevocably assign, sell,
transfer, grant and convey all of its worldwide and universal right, title and
interest in and to the ML Look and Feel IP under the 1999 Master Agreement from
the moment of creation to ML, its successors and assigns (without the necessity
of any further consideration or action on the part of ML or Multex), including,
but not limited to, all Intellectual Property Rights therein, for perpetuity (or
for the longest period of time otherwise permitted by law) (and insofar as
ownership of the same or the Intellectual Property Rights therein are not deemed
to vest in or be owned by ML by operation of law), the same to be held and
enjoyed by ML, its successors and assigns to the same extent that such right,
title and interest would have been held and enjoyed by Multex if this assignment
had not been made. If and to the extent necessary to ensure that each Party has
an undivided one-half interest in the work product and Intellectual Property
Rights therein resulting from a Joint Development Project (or such other
interest as the Party's may otherwise expressly agree in the governing Project
Plan) as set forth in Section 19.2, the Parties shall make such assignments, if
------------
any, as may be necessary so that each Party
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has an undivided one-half interest (or such other interest as the Party's may
otherwise expressly agree in the governing Project Plan) to the other Party, as
applicable and appropriate.
19.6. ML agrees to and hereby grants Multex a non-exclusive, fully
paid-up license throughout the universe (without the right to sublicense) during
the Term and the Transition Services Period under all of ML's Intellectual
Property Rights in the ML Look and Feel IP to use the ML Look and Feel IP only
to the extent necessary for Multex to perform its obligations to ML under the
1999 Master Agreement.
19.7. The Parties acknowledge and agree that Web 2.0 is deemed part of
the Licensed Software and shall be subject to the Standard Institutional License
Fee Rate; provided, that, for the avoidance of doubt, and notwithstanding
-------- ----
anything contained in the 1999 Master Agreement, in no event shall Multex be
obligated to provide any services or perform any projects or any other
activities with respect to Web 2.0 unless Multex agrees to do so pursuant to a
Project Plan.
19.8. Each of Multex and ML without reservation hereby covenants and
binds itself and its successors, assigns and legal representatives to cooperate
fully and promptly with the other Party and to do acts necessary or requested to
be done by the other Party in order to evidence, establish, apply for, perfect,
procure, register, record, maintain, enforce and/or defend the other Party's
Intellectual Property Rights under the 1999 Master Agreement and in connection
with all proceedings before the United States Patent and Trademark Office (the
"PTO"), the United States Copyright Office (the "Copyright Office") and all
- ---- ----------------
equivalent offices and government agencies in foreign countries ("Foreign
-------
Offices") (singularly or collectively, the "protection of Intellectual Property
- ------- -----------------------------------
Rights") including, without limitation, to execute and deliver to the other
- ------
Party any and all lawful application documents including petitions,
specifications, oaths and assignments. Each of Multex and ML (their
successors, assigns and legal representatives) shall discharge its obligations
under this Section 18.9 promptly but in any event within such time as is
------------
required to enable the other Party to timely preserve or assert its rights in
connection with the protection of Multex's or ML's Intellectual Property
Rights, as the case may be. The rights provided to each of the Parties in this
Section 18.9 are cumulative of any rights provided in the 1999 Master Agreement.
- ------------
20. Term, Termination, Transition Services and Effect of Termination
20.1. The initial term of Addn-3 begins on the Addn-3 Effective Date and
ends on December 31, 2004 (the "Addn-3 Initial Term"). ML has the right to
-------------------
extend the term of this Addn-3 from the end of the Addn-3 Initial Term to and
including December 31, 2009 (the "Addn-3 Renewal Term") by providing notice
-------------------
during Year 4. As used herein, the Term of the 1999 Master Agreement means the
----
Addn-3 Initial Term and, if entered into, the Addn-3 Renewal Term.
20.2. Each Party shall have the right to terminate the 1999 Master
Agreement for cause if the other Party commits a material breach and, if such
breach is curable, it remains uncured at the end of a thirty (30) day cure
period.
20.3. ML shall have the right to immediately terminate the 1999 Master
Agreement for cause upon written notice to Multex if: (a) a Change of Control of
Multex occurs; (b) Multex shall
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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cease to do business, enter into liquidation, or become subject to any
bankruptcy law; (c) an interruption or outage in the Dissemination of Services
continues for more than a period of more than twenty- four (24) consecutive
hours; (d) repeated interruptions or outages aggregating more than twelve (12)
hours occur in a fifteen (15) day period; or (e) Multex causes or permits the
unauthorized Dissemination of Research, and if after notice from ML, such
unauthorized Dissemination remains uncured, and such Dissemination is material.
20.4. It is the intent of ML and Multex that at the expiration or
termination of the 1999 Master Agreement Multex will cooperate in good faith
with ML to provide ML and/or its designees with reasonable assistance to permit
an orderly transition of the Services provided hereunder to ML and/or its
designees (as further described in this Section 20, the "Transition Services").
---------- -------------------
The Transition Services include, without limitation: (a) continuing to provide
Services; (b) developing a plan for the transition of Services to ML and/or its
designees; (c) training personnel of ML (but not ML's designees) in the
performance of the Services and the operation, maintenance and support of
Licensed Software; (d) creating documentation and other explanatory and
instructional material, if and to the extent reasonably requested by ML,
provided that in no event shall Multex be obligated to provide or shall ML be
- -------- ----
allowed to disclose such documentation and/or material to any designee of ML
unless Multex so agrees or gives its prior consent; and (e) performing such
other functions or tasks as may be reasonably requested by ML that relate to the
transition of the Services to ML (and/or its designees).
20.5. Subject to ML's complying with its payment obligations as set forth
in this Section 20, a transition services period shall commence immediately,
----------
upon the expiration or termination of the 1999 Master Agreement for any reason,
which shall be an eighteen (18) month period (unless before or during that
period ML provides notice to Multex that it wishes to terminate the Transition
Services Period prior to the end of that period, and if ML provides notice of an
earlier termination date, the transition services period shall terminate at the
date specified by ML, provided that ML has provided at least sixty (60) days
notice to Multex (the "Transition Services Period"). If ML fails to provide
--------------------------
sixty (60) days notice, the Transition Services Period shall terminate sixty
(60) days after the date on which ML provided notice.
20.6. Subject to ML's complying with its payment obligations hereunder,
if the 1999 Master Agreement expires or terminates, then immediately upon such
expiration or termination, as applicable, Multex shall provide Transition
Services, and the Software License shall continue for the duration of the
Transition Services Period. As payment for the Software License during the
Transition Services Period, ML shall pay the Standard Institutional License Fee
Rate. As payment for Transition Services, ML shall pay Multex the Standard
Project Payment Rate and Data and Equipment Fees.
20.7. For the avoidance of doubt if Multex terminates the 1999 Master
Agreement for cause, Multex shall provide Transition Services to Multex provided
that ML pays all fees and makes all other payments owed to Multex in
consideration for such Transition Services under the terms and conditions of the
1999 Master Agreement, including, without limitation, those set forth in this
Section 20, and provided further that ML is current (and not in arrears) in its
- ---------- -------- ------- ----
payments owed to Multex hereunder, whether prior to or after such termination;
except for any amounts which ML is
- ------
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disputing in good faith (provided that the portion of any payment not in dispute
is paid to Multex in a timely manner as required hereunder). In addition,
notwithstanding anything contained herein, after termination or expiration of
the 1999 Master Agreement, ML shall have no right to the Output Right
(including, but not limited to, the right to receive New Product and the right
for ML to have one of its employees serve as a full R&D Committee), and ML shall
therefore, have no obligation to pay the Output License Fee accruing after the
termination or expiration of the 1999 Master Agreement.
20.8. Each Party agrees that if the 1999 Master Agreement terminates or
is not renewed, whether in whole or in part, or if any Project hereunder is
terminated, neither Party shall disclose to any Third Party any reason for not
continuing under the 1999 Master Agreement (or any intent or plan of not
continuing) without the express written consent of the other Party, and the
Parties shall agree on statements for public disclosure.
20.9. Upon the expiration or termination of the 1999 Master Agreement, or
if there is a Transition Services Period, after the end of the Transition
Services Period, all licenses and all rights and interests granted thereunder to
ML (exclusive of all rights and interests expressly assigned to ML under the
1999 Master Agreement including, without limitation, the Look and Feel IP and
ML's Joint Development Work Product) under the 1999 Master Agreement shall
immediately terminate (including, without limitation, those under the Software
License) and shall immediately revert to and become fully vested in Multex.
Termination or expiration of the 1999 Master Agreement for any reason shall be
without prejudice to any obligations which shall have accrued to the benefit of
either Party prior to such termination or expiration. Upon termination or
expiration of the 1999 Master Agreement, any payments owed to the other Party on
or before the effective date of such termination or expiration would remain due
and payable in the ordinary course in accordance with the terms and conditions
of the 1999 Master Agreement. The termination or expiration of the 1999 Master
Agreement shall not affect any rights or obligations of the Parties under the
1999 Master Agreement which are intended by the Parties to survive such
termination or expiration, including, without limitation, those which are
intended by the Parties to survive during the Transition Services Period. For
the avoidance of doubt, during the Transition Period, all terms and conditions
of the 1999 Master Agreement shall survive except for those set forth in Section
-------
9.
- -
20.10. Without limiting the foregoing, and notwithstanding anything
contained herein, upon the termination or expiration of the 1999 Master
Agreement, the Parties hereby agree that the Master Agreement (as in effect
immediately prior to the Addn-3 Effective Date) as expressly amended by this
Addn-3 or as otherwise expressly amended by the Parties in writing after the
Addn-3 Effective Date, shall have and shall remain in full force and effect in
accordance with its then existing terms and conditions (as such terms and
conditions may have been expressly amended by the Parties).
21. Indemnification; Limitations of Liability
21.1. Multex shall defend, and indemnify ML and its officers, directors,
employees and other agents against, and hold ML, and its officers, directors,
employees and other agents from any and all liability, damages, costs and
expenses (including without limitation reasonable attorney's fees and costs)
resulting from and to the extent of any claim or action in law or equity
resulting from,
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1934, as amended.
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based on or arising out of any cause of action or any other claim of any nature
(a "Claim") that any of the Licensed Software or other software (including,
-----
without limitation, software developed pursuant to a Software Project and
programming code or features of any Interactive Service), deliverables under any
Plan Project, products, Services and other material, in each case provided to ML
by Multex pursuant to the 1999 Master Agreement (the "Covered Material")
----------------
infringes or otherwise violates any of the Intellectual Property Rights other
proprietary right of any Third Party provided that ML provides Multex with
prompt notice of the Claim and cooperate at Multex's expense in any litigation
resulting therefrom; that ML has the right to approve any proposed settlement of
the Claim, and that Multex shall have the right to control the defense of the
Claim. Notwithstanding anything contained herein, in no event shall Multex's
indemnity obligation covered by this Section 21.1 include, and shall
------------
specifically exclude, any and all liability arising from the willful misconduct
or gross negligence of ML or its affiliates or their agent, or from any
infringement or other claim to the extent that it relates to ML's Intellectual
Property Rights or the Research or Content.
21.2. In the event that ML's Use of any Covered Materials be or
reasonably appear likely to be restricted, encumbered or enjoined by reason of
any actual or alleged infringement or otherwise violation of any of the
Intellectual Property Rights or other proprietary right of any Third Party: (a)
Multex shall have the right upon ML written notice to immediately terminate the
portion of the infringing Services that are or reasonably may be infringing or
otherwise violating the Intellectual Property Rights of any person or entity;
and (b) Multex will promptly at (i) obtain for ML the right to continue to Use
the Covered Materials, (ii) modify the Covered Materials so as to remove the
cause of the Claim (provided that any such modifications will not affect ML's
intended use of the Covered Materials) and/or (iii) if possible, replace the
Covered Materials with an equally suitable, non-infringing substitution, which
will be subject to the provisions of the 1999 Master Agreement. The remedies in
this Section are in addition to and not in place of and shall not limit any of
ML's other rights or remedies or limit or affect Multex's obligations otherwise
set forth in this Section 21.
----------
(b) ML shall defend and/or handle at its own cost and expense any
claim or action brought by a Third Party against ML arising from or relating to
the Research or Content as provided by ML provided, however, that ML shall have
-------- -------
the sole right to control the defense and settlement of such action and all
rights of appeal, and shall not be liable to Multex for any costs, settlements,
compromises or legal fees of any kind incurred or entered into by Multex without
ML's prior written approval. ML shall indemnify and hold harmless Multex and its
affiliates from and against all liabilities, losses, damages, costs and expenses
(including but not limited to, attorneys' fees, costs and disbursements)
resulting from or arising out of any such claim or action. ML's obligations
hereunder shall be contingent upon Multex promptly notifying ML of any such
claim and cooperating, at ML's expense, in the litigation.
21.3. Multex will use its reasonable commercial efforts to provide the
Services to ML and its affiliates as described herein. However, ML understands
that Multex cannot and does not guarantee the content, accuracy, timeliness or
availability of the Services or Research as displayed or provided by Multex.
ACCORDINGLY, ML AGREES THAT UNLESS THE FOLLOWING ARE CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF MULTEX, MULTEX SHALL NOT HAVE ANY LIABILITY
OR OBLIGATION TO ML OR ITS
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AFFILIATES (WHETHER CAUSED DIRECTLY OR INDIRECTLY) RELATING TO (A) INTERRUPTION,
DELAY OR FAILURE IN THE TRANSMISSION, PROCESSING, DELIVERY OR DISTRIBUTION OF
THE SERVICES OR THE RESEARCH; OR (B) THE UNAVAILABILITY OF THE MULTEX SERVICES;
MOREOVER, MULTEX SHALL NOT HAVE ANY LIABILITY TO ML OR ITS AFFILIATES RELATING
TO ACTS OR OMISSIONS OF ML. MULTEX AGREES TO MAKE BEST EFFORTS, AT ML'S EXPENSE,
TO REMEDY ANY MATERIAL DEFECTS IN THE ACCURACY, TIMELINESS OR AVAILABILITY OF
THE SERVICES OR RESEARCH AS DISPLAYED OR PROVIDED BY MULTEX.
21.4. Each Party shall be strictly liable for the actions of its
Employees, affiliates, partners and representatives.
21.5. Multex's maximum aggregate liability under the 1999 Master
Agreement arising after the Addn-3 Effective Date arising out of or relating to
the Covered Materials (excluding liability covered under the M.A. prior to the
Addn- 3 Effective Date), including, without limitation, liability arising under
Section 21.1 and liability arising from the gross negligence or willful
- ------------
misconduct of Multex shall not exceed [*****].
21.6. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR SPECIAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, OR FOR ANY CAUSES OF ACTION BEYOND ITS REASONABLE CONTROL. FOR THE
PURPOSES OF THIS SECTION, DAMAGES PAYABLE TO A THIRD PARTY IN AN ACTION FOR
WHICH A PARTY IS INDEMNIFIED UNDER SECTION 21 OF THIS ADDN-3 SHALL NOT BE DEEMED
----------
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.
21.7. The Parties acknowledge and agree that the limitations of liability
set forth in this Section are a condition of the 1999 Master Agreement, and that
the fees reflect the allocations of risk set forth in this Section.
22. Further Amendments
22.1. Section 13 of the M.A. is amended as to add the following provision
----------
as the last sentence of subsection (a): "ML shall have the right to control the
defense or settlement of any claim under this Section 13."
----------
22.2. Section 16 is amended as follows:
----------
22.2.1. The following provision is added as subsection (v): "All
Multex interconnectivity to ML Interactive Services, computing systems and/or
networks and all attempts at the same shall be only through ML authorized
security gateways/firewalls; Multex will not access, and will not permit
unauthorized persons or entities to access, ML computing systems and/or networks
without ML's express written authorization and any such actual or attempted
access shall be consistent with any such authorization; and Multex will use the
latest available, most comprehensive computer virus detection/scanning program
reasonably commercially available prior to any attempt to access any of ML's
computing systems and/or networks and upon detecting a
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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computer virus, all attempts to access ML's computing systems and/or networks
shall immediately cease and shall not resume until any such computer virus has
been eliminated to the satisfaction of ML."
22.2.2. The following provision is added as subsection (vi): "All
Licensed Software, other software and Services licensed or provided to ML
hereunder are Year 2000 Compliant, and Multex will reasonably cooperate with and
assist ML in ML's independent verification that the software, programs,
Equipment, Services and/or other materials furnished to ML are Year 2000
Compliant. Multex further agrees, upon ML's request, to promptly provide all
information about procedures that Multex has followed to make the software,
programs, Equipment, Services and/or other materials furnished to ML Year 2000
Compliant. For purposes hereof, "Year 2000 Compliant" means that: (A) the
-------------------
materials, deliverables and products provided to ML will accurately record,
store, process, calculate, transmit, display and present calendar dates on or
after (and, if applicable, spans of time including) January 1, 2000; (B) the
occurrence in or use by the materials, deliverables and products provided to ML
of dates before, on or after January 1, 2000 will not materially adversely
affect the performance of the materials, deliverables and products provided to
ML with respect to date- dependent data, computations, output, or other
functions (including, without limitation, calculating, comparing and
sequencing); (C) the materials, deliverables and products provided to ML will
not abnormally end or provide invalid or incorrect results as a result of
date-dependent data; and (D) the materials, deliverables and products provided
to ML can accurately recognize, manage, accommodate and manipulate
date-dependent data, including, without limitation, single and multi-century
formulas and leap years."
22.2.3. The following provision is added as subsection (vii): "All
Licensed Software, programs, Equipment, Services and/or other materials
furnished to ML hereunder that receive, recognize, use, or process financial
information pertaining to any of the countries with currency affected by its
participation in the European Economic and Monetary Union, such software,
programs, Equipment, Services and/or other materials furnished to ML will (A)
operate without errors, problems, delays, or the need for any further
modification as a result of the introduction of a new currency (the "Euro"), in
----
whole or in part as the European currency or currency unit; and (B) continue to
receive, recognize, use and process both national currency units and Euro units
and all data related thereto (and permit conversions from national currency
units to Euro units and vice versa) without errors, problems, delays, loss of
functionality, degradation in performance, or the need for any further
modifications."
22.2.4. The following provisions are added as subsection (viii):
"In the event that ML's use of the Licensed Software, other software equipment,
Services and/or other materials furnished to ML hereunder be or reasonably
appear likely to be restricted, encumbered or enjoined by reason of any such
actual or alleged infringement of Third Party Intellectual Property Rights or
other proprietary rights or confidentiality or nondisclosure restrictions (the
"Accused Material"), Multex will promptly and at no cost to ML, (A) Multex shall
------- --------
have the right upon written notice to ML to immediately terminate the portion of
the infringing Services that are or reasonably may be infringing or otherwise
violating the Intellectual Property Rights of any person or entity, (B) obtain
for ML the right to continue to use the Accused Material, (C) work diligently
and continuously through qualified Employees to modify the Accused Material so
as to remove the cause of the claim,
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action or suit (provided that Multex modification will not affect ML's intended
use of the subject material or the performance of any ML operations dependent
upon the subject material), and/or (D) replace the Accused Material with an
equally suitable, non-infringing substitution, which will be subject to the
provisions of the 1999 Master Agreement. The remedies in this Section are in
addition and not in place of and shall not limit any of ML's other rights or
remedies or limit or affect Multex's obligations at law or as otherwise set
forth in this Section."
22.2.5. The following provisions are added as subsection (ix) "The
warranties set forth in this Section 16(a) shall not apply: (A) if the Multex
-------------
Software or Service is not used in accordance with this 1999 Master Agreement;
or (B) if the defect is caused by ML or its agent other than Multex."
23. General Provisions
23.1. Any notices or other communications required or permitted to be
given or delivered under the 1999 Master Agreement shall be provided by e-mail
(provided that the sender's computer system is capable of and does retain a
message establishing that the e-mail message was actually delivered to the
recipient's e-mail server) or in writing, which shall be sufficiently given if
delivered personally, mailed by first-class mail, postage prepaid, or sent via
overnight delivery courier or any other means for which a proof of delivery is
provided. All written notices will be addressed to Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Merrill Lynch World Headquarters, World Financial Center,
South Tower, New York, NY 10080-6105, Attention: Mr. Laurence A. Tosi, Director,
Business Development, CICG, and to Multex.com, Inc. 100 William Street, 7th
floor, New York, NY 10038, Attention: President or to such other address or
addressee as either Party may from time to time designate to the other by
written notice pursuant to this Section 23.1. All e-mail messages to ML shall be
------------
sent to laurence@tosi@ml.com, and all e-mail messages to Multex shall be sent to
jim@multex.com with a copy to john.mcgovern@multex.com or to such other address
or addressee as either Party may from time to time designate to the other by
written notice pursuant to this Section 23.1.
------------
23.2. Multex agrees to notify ML of any change to Multex's legal name
within ten (10) business days of the effective date of such name change.
23.3. The Parties shall initially attempt in good faith to resolve any
significant controversy, claim, or dispute arising out of or relating to this
1999 Master Agreement or any significant breach thereof, (except for any action
------ ---
to compel arbitration hereunder or any action concerning the unauthorized
disclosure of any proprietary information or content of a Party or any action
concerning the interruption or outage in the Dissemination of Services to ML by
Multex or any action concerning the ownership, enforceability, validity,
infringement or misappropriation of the Intellectual Property Rights of either
Party) (hereinafter collectively referred to as a "Dispute") through face-to-
-------
face negotiations between senior executives of each Party. If the Dispute is
not resolved within five (5) business days (or such other period of time
mutually agreed upon by the Parties) of commencing such face-to-face
negotiations, or if the Party against which a claim has been asserted refuses to
attend such negotiations or does not otherwise participate in such negotiations
within thirty (30) days (or such other period of time mutually agreed upon by
the Parties) from the
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date of notice of a Dispute, then the Parties agree to submit the Dispute to
arbitration as provided herein. Except as provided in this Section, all Disputes
relating in any way to the 1999 Master Agreement shall be resolved exclusively
through arbitration conducted under the auspices of the Center for Public
Resources (the "CPR") pursuant to CPR's Model ADR Procedure: Non-Administered
---
Arbitration Rules and Commentary. The arbitration shall be conducted before
three (3) arbitrators, one selected by each Party and the third to be selected
by the other two, provided, however, that in the event the Dispute is relating
-------- ------- ----
to whether Multex has discharged its obligations under a Project Plan or any
other Dispute under the 1999 Master Agreement that is of a technical nature
(including whether certain technical specifications have been met or concerning
the operation of certain software) at least two (2) of the arbitrators shall
have some technical and/or business expertise and background in the software
and/or Internet industry. Unless otherwise mutually agreed by the Parties, any
arbitration brought hereunder shall be brought only and exclusively in New York,
New York. The arbitrators shall hear evidence by each Party and resolve each of
the issues identified by the Parties. The arbitrators shall render a formal,
non-binding appealable resolution and award on each issue as expeditiously as
- ----------- ----------
possible, but not more than fifteen (15) business days after the hearing. In any
arbitration, the prevailing Party shall be entitled to reimbursement of its
reasonable attorneys' fees and the Parties shall use all reasonable efforts to
keep arbitration costs to a minimum. Notwithstanding anything in this Section
-------
12.6 or the other provisions of the 1999 Master Agreement, if either party shall
- ----
reasonably determine the need to seek injunctive or other expedited relief in
connection with the 1999 Master Agreement, such party may do so in a court of
competent jurisdiction in accordance with Section 23.4.
------------
23.4. Subject to Section 23.3, the Parties hereto agree that the state
------------
and federal courts of New York shall be the proper forums for any legal
controversy arising in connection with the 1999 Master Agreement, and the
Parties hereby irrevocably and unconditionally consent to the exclusive
jurisdiction of such courts for such purposes. So far as is permitted under
applicable law, this consent to personal jurisdiction shall be self operative
and no further instrument or action, other than service of process as is
permitted by New York Law, shall be necessary in order to confer jurisdiction
upon Multex in any such court. The convention on the International Sale of Goods
shall not apply to the 1999 Master Agreement and is hereby disclaimed.
23.5. Each Party shall comply with all applicable laws, rules and
regulations, including all applicable laws, rules and regulations of the United
States of America, including, without limitation, the export controls imposed by
the Department of Commerce, the antiboycott regulations administered by the
Departments of Commerce and the Treasury (which among other matters prohibit
participating in any boycott of Israel) and the Foreign Corrupt Practices Act as
they apply to the products and services and other activities under the 1999
Master Agreement.
23.6. In the event any one or more of the provisions of the 1999 Master
Agreement shall for any reason be held to be invalid, illegal or unenforceable,
the remaining provisions of the 1999 Master Agreement shall be unimpaired, and
the invalid, illegal or unenforceable provision shall be replaced by a mutually
acceptable provision, which being valid, legal and enforceable, comes closest to
the economic effect and intent of the Parties underlying the invalid, illegal or
unenforceable provision.
29
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
EXECUTION COPY
23.7. Any press releases, public announcements or similar publicity with
respect to the 1999 Master Agreement or the transactions contemplated hereby
must be approved by the Parties in advance, provided that such approval may not
be unreasonably withheld or delayed, and further provided that nothing herein
will prevent the Parties or their respective Affiliates, upon reasonable notice
to the others, from making public announcements to comply with the requirements
of law or any listing agreement with any securities exchange or to inform their
respective employees of the transactions contemplated by the 1999 Master
Agreement.
23.8. All references herein to Sections, Exhibits and Schedules are to
the Sections in the Addn-3 and to Exhibits and Schedules attached hereto as if
fully set forth in.
23.9. Addn-3 may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
* * * * *
30
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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IN WITNESS WHEREOF, the Parties hereto, each acting under due and
proper authority, have executed this Addn-3 as of the day, month and year first
above written.
MULTEX.COM, INC. MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
/s/ /s/
By:_____________________________ By:_____________________________
Name:___________________________ Name:___________________________
(type or print) (type or print)
Title:__________________________ Title:__________________________
(type or print) (type or print)
Date:___________________________ Date:___________________________
31
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
EXECUTION COPY
Exhibit A
---------
All of the Schedules and Attachments, prior amendments and service requests
(together with the M.A., the "Master Agreement") constituting part of the Master
----------------
Agreement are set out on this Exhibit A or attached hereto.
---------
Schedules
---------
A. ML Online/Multex Service Request dated as of February 28, 1997
B. Contribution and Distribution Services Agreement
C. Multex Publisher - For Internal ML Research Distribution Services
Agreement
D. ML Online Trial Program Addendum
Attachments
-----------
A. Form of Service Request
B. Multex or ML Provided Equipment
C. Third Party Software/License Requirements for End Users
D. Multex Subscriber Agreement
Amendments
----------
1. Addendum No. 1 dated July 1, 1999 amends the M.A. and the ML Online
Trial Program Addendum dated October 29, 1998
2. Second Addendum, effective April 1, 1999 amends the ML Online/Multex
Service Request dated February 28, 1997 and supplements the ML Online Trial
Program Addendum dated October 29, 1998
Service Requests
----------------
SPDR Service Request dated as of August 5, 1999
A-1
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
EXECUTION COPY
Exhibit B
---------
Project Plan Form
The Project Plan Form shall be attached by the Parties after the Addn-3
Effective Date.
B-1
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
EXECUTION COPY
Schedule 1.20
MULTEX EMPLOYEE CONFIDENTIALITY
AND NON-DISCLOSURE FORM AGREEMENT
---------------------------------
Attached hereto.
1.20-1
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
EXECUTION COPY
Schedule 1.80
MULTEX CONSULTANT CONFIDENTIALITY
AND NON-DISCLOSURE FORM AGREEMENT
---------------------------------
Attached hereto.
1.80-1
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
EXECUTION COPY
Schedule 18
DOMAIN NAME AGREEMENT AND ASSIGNMENT
------------------------------------
This Agreement and Assignment is made between Multex.com, Inc., a
Delaware corporation having a principal place of business at 33 Maiden Lane, 5th
Floor, New York, NY 10038 ("Assignor"), and Merrill Lynch, Pierce, Fenner &
--------
Smith Incorporated, a Delaware corporation having a principal place of business
at Merrill Lynch World Headquarters, North Tower World Financial Center, 250
Vesey Street, New York, NY 10281 ("Assignee").
--------
WHEREAS, pursuant to Section 18 of Addendum No. 3 to Master Agreement
for Electronic Distribution Services between Assignor and Assignee dated as of
December 21, 1999, Assignor agreed to assign to Assignee and Assignee agreed to
accept the assignment of all rights in the domain name "themarkets.com" and all
--------------
registrations pertaining to domain names including the term "themarkets" or
----------
variation thereof, and all goodwill associated with the domain names
(collectively, the "Domain Names").
------------
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Assignor agrees to and hereby assigns, sells and transfers to
Assignee, its successors and assigns, all right, title and interest in and to:
(i) the Domain Names and all registrations for such Domain Names and all
goodwill pertaining to such Domain Names; (ii) all income, royalties, damages
and payments now due or which hereafter become due or payable in respect to such
Domain Names; (iii) all causes of action (in law or equity) and rights to sue,
counterclaim and/or recover for past, present or future infringement of such
Domain Names; and (iv) all rights corresponding to the foregoing throughout the
world.
2. Assignor agrees to cooperate with Assignee and follow Assignee's
instructions in order to transfer the Domain Names to Assignee in a timely
manner. Assignor will prepare and transmit the necessary documentation and/or
correspond with the appropriate domain name registration authority, Internet
service provider and/or governmental entities to authorize transfer of the
domain name.
3. This Assignment is effective as of the date set forth below. Assignor
agrees to execute additional assignments and other appropriate documentation
necessary to effectuate and validate this Assignment as soon as is practicable
after the date of this Assignment.
18-1
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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4. Assignor warrants and represents to Assignee that: (i) Assignor has
unencumbered rights in the Domain Names; (ii) Assignor properly registered the
Domain Names without committing fraud or misrepresentation; (iii) Assignor has
the authority to transfer the Domain Names; (iv) Assignor has not received any
claim from a third party that the use of the Domain Names violates the
intellectual property or other rights of such third party; (v) Assignor has not
used the Domain Names for any illegal purpose; and (vi) to the best of
Assignor's knowledge, the use of the Domain Names does not infringe the rights
of any third party in any jurisdiction.
MULTEX.COM, INC. MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By:_____________________________ By:_____________________________
Name:___________________________ Name:___________________________
(type or print) (type or print)
Title:__________________________ Title:__________________________
(type or print) (type or print)
Date:___________________________ Date:___________________________
18-2
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have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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Schedule 12
MONTHLY RETAINER AND MONTHLY REPORTS
------------------------------------
22.10. No later than the tenth (10th) business day of each month during
the Term hereof, ML shall pay Multex a monthly retainer payment for Services to
be performed by Multex in such month. The initial monthly retainer payment shall
be [*****]. The Parties may increase or decrease the monthly retainer payment in
amounts mutually agreed upon one or more times during the Term hereof, and the
initial monthly retainer payment, or if applicable, the then-current adjusted
monthly retainer payment shall be referred to as the "Monthly Retainer Payment."
------------------------
22.11. Multex shall deliver a report (the "Monthly Report" and "Monthly
-------------- -------
Reports") to ML within ten (10) business days after the end of the preceding
- -------
month indicating (in itemized form) with respect to such month: the name of each
Employee and Outside Consultant who worked on one or more Projects then underway
and the Projects for which he or she provided Services, the number of hours he
or she spent on each Project, the payments to be made to Multex by ML for such
work, and the Data and Equipment Fees paid or owed by ML to Multex during such
month (on an itemized basis). The total amount of payments made and owed by ML
to Multex for such month shall be referred to as the "Monthly Payment Amount."
----------------------
The Monthly Report shall indicate the amount by which the Monthly Retainer
Payment constituted an overpayment or underpayment of the Monthly Payment Amount
for that month. ML shall pay Multex to compensate for any such underpayment
within forty-five (45) days of receiving an invoice for the same from Multex. To
the extent the Monthly Retainer Payment constituted an overpayment of the
Monthly Payment Amount, the excess amount will be applied as a credit against
payments owed by ML to Multex in the next and succeeding months until such
credit has been fully applied. Multex shall indicate the amount of such credit,
if any, in successive Monthly Reports.
12-3
Confidential treatment has been requested for portions of this document, which
have been redacted, pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.