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Exhibit 10.20
TELERATE
OPTIONAL SERVICE DELIVERY
AGREEMENT
THIS AGREEMENT, dated as of May 1, 1991, between TELERATE
SYSTEMS INCORPORATED, a New York corporation with offices at One World Financial
Center, 200 Liberty Street, New York, New York 10281 ("Telerate"), and FINTREND
S.A., a French corporation with offices at 52, avenue des Champs-Elysees, 75008,
Paris, France ("Source").
INTRODUCTION
Telerate gathers from a multitude of sources prices, rates and
other data regarding the markets for among other things, government securities,
equities, bonds, money market instruments, commodities and foreign currency, as
well as news, commentary and other information relevant to such markets, and
compiles such data and information in a dynamically updated computer database
(the "Information Base"). Telerate makes all or selected parts of the
Information Base available to subscribers to its several services (the "Telerate
Services"). Pursuant to an agreement dated May 1, 1986, Telerate has been making
Source's information service available to subscribers to the Telerate Services
who subscribe to such service. Now, the parties wish to terminate their existing
arrangement and replace it with the terms and conditions contained herein.
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1. Agency; Limited Exclusivity; New Source Services.
(a) Agency.
(i) Appointment. Source hereby appoints Telerate, and Telerate
hereby agrees to serve as, an agent of Source for the term set forth in Section
8 for the purpose of distributing the service described in Exhibit A (the
"Source Service") worldwide to Telerate Subscribers, as defined below, who also
subscribe to the Source Service ("Source Subscribers"), all in accordance with
the terms and conditions hereof. "Telerate Subscribers" shall mean those persons
or entities authorized by Telerate to access all or part of the information and
services contained in the Telerate Services through which the Source Service is
made available. Notwithstanding the foregoing, Source shall have the right to
direct Telerate in writing to not deliver the Source Service to any Telerate
Subscriber that competes directly with Source in its business of providing
financial information and/or advisory services.
(ii) No Implied Duties. The parties agree that Telerate's
duties as agent of Source shall be limited to those expressly set forth in this
Agreement. Telerate shall not be deemed to be a fiduciary of Source and shall
not have any implied duties that might otherwise be imposed upon an agent of
Source.
(b) Limited Exclusivity. Except as otherwise provided in this
subsection (b), Source agrees that during the term of this Agreement, Source
will not itself electronically distribute, nor authorize any other party to
electronically distribute, the Source Service or any other service substantially
similar to the Source Service. Notwithstanding the foregoing, (i) Source shall
have the right to distribute the Source
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Service through facsimile transmission; (ii) Source shall have the right, in
accordance with the terms and procedures set forth in Exhibit B, to distribute
the Source Service through technology not offered by Telerate ("Other
Technology"); and (iii) on or about May 1, 1993 Source and Telerate shall
commence a discussion of the results of Telerate's distribution of the Source
Service during the first two years of the term of this Agreement. Source shall
have the option between the commencement of such discussions and July 1, 1993 to
convert Telerate's right to distribute the Source Service into a non-exclusive
right with the adjustment to the fee set forth in Section 5(a)(ii) hereto for
the duration of the term of this Agreement effective on the date that Telerate
receives notice of Source's election to so convert the right to distribute the
Source Service. If Source has not notified Telerate of its exercise of such
option by July 1, 1993, Telerate's right of exclusive distribution shall
continue for the remainder of the term of this Agreement.
(c) New Source Services. Source hereby grants to Telerate a right of
first negotiation concerning the right to distribute any electronically
distributed information or advisory service (other than the Source Service)
hereafter published by Source (a "New Source Service"). The terms and procedures
controlling this right of first negotiation are set forth in Exhibit C. The
terms and conditions relating to the distribution by Telerate of a New Source
Service shall be set forth in a separate agreement between the parties.
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2. Inputting; Equipment; Accessibility; Display; Accuracy; Content Changes.
(a) Inputting the Source Service and Equipment. Source shall input the
Source Service into the Information Base by means of the standard Telerate
Service terminals listed in Exhibit D or such other method as the parties may
agree upon in writing. Telerate will not unreasonably withhold agreement to use
of such other method. Exhibit D also sets forth the terminals and other Telerate
equipment and services provided to Source, and the charges, if any, due Telerate
for the use thereof. If Source requires additional terminals, such additional
terminals will be provided at Telerate's standard charges, including
installation and communications charges and charges levied by parties other than
Telerate. Telerate reserves the right to deny Source access to any information
distributed through the Telerate Services. Except as may otherwise be provided
herein, Source's use of any of the Telerate Services shall be subject to the
terms and conditions of the then-current version of the applicable Telerate
Service Agreement.
(b) Accessibility of Source Service. Source acknowledges that certain
of the Telerate Services, such as TeleTrac(R), do not afford access to all
information in the Information Base. Telerate shall have the right, but not the
obligation, to make the Source Service available through one or more of these
various Telerate Services. If Telerate elects to initiate distribution of the
Source Service through such a Telerate Service after the date hereof pursuant to
the terms of this subsection (b), such distribution shall be subject to the
terms of this Agreement. Telerate shall
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not, unless otherwise permitted by the terms of this Agreement, remove the
Source Service from the "Basic Telerate" component of the Telerate Services.
(c) Accuracy of Information. Source shall use commercially reasonable
efforts to (i) insure that the information in the Source Service is accurate,
complete and current, and correct inaccuracies, errors or defects in such
information promptly after discover. Source shall monitor such information as it
is distributed through the Telerate Services and promptly shall inform Telerate
of any inaccuracies, errors or defects therein.
(d) Change in Nature. No substantial change in the nature or structure
of the Source Service may be made without the prior written consent of Telerate,
which consent shall not be unreasonably withheld.
3. Promotion and Marketing.
(a) Efforts and Materials.
(i) Efforts. Source and Telerate shall each exercise
commercially reasonable efforts (which for Telerate shall not be less than
diligent efforts) to market and promote subscriptions to the Source Service to
be accessed through the Telerate Services. As part of such sales efforts, Source
shall have the right to organize sales contests within the Telerate sales force
provided that the regional managers for the appropriate geographical areas have
approved such sales contests.
(ii) Materials. Neither party shall publish or distribute any
advertising or promotional material regarding the availability of the Source
Service through the Telerate Services without the prior written consent of the
other, which consent
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shall not be unreasonably withheld. If the receiving party has not notified the
sending party of its disapproval of sample materials within twenty (20) days
after its receipt thereof, such materials shall be deemed approved. Materials
substantially similar to materials approved on an earlier occasion shall also be
deemed approved. Materials being sent to the other party for approval pursuant
to this clause (ii) shall be directed to the person(s) designated in Exhibit E
hereto.
(b) Subscriber List. To facilitate Source's promotional efforts,
Telerate shall use its best efforts to obtain from Authorized Distributors (as
hereinafter defined) and promptly provide to Source when so available to
Telerate lists of Telerate Subscribers on a world-wide basis. Each month
Telerate shall provide Source with a list of adds/deletes for the Telerate
Subscribers located in the United States. Source agrees to keep such lists
strictly confidential and to use such lists solely to solicit subscriptions to
the Source Service to be accessed through the Telerate Services. Source agrees
to honor request from Telerate Subscribers not to send unsolicited mail to them
or, provided Telerate has informed Source of Telerate Subscribers' requests in
connection therewith, to make unsolicited calls on them.
(c) Authorized Distributors. Source acknowledges that Telerate utilizes
authorized distributors, which may or may not be affiliated with Telerate, to
distribute the Telerate Services ("Authorized Distributors"). Source agrees to
allow the Source Service to be distributed by the Authorized Distributors.
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(d) Demonstration Periods. Source agrees that, if Telerate deems it
advisable for promotional or marketing purposes, Telerate may make the Source
Service available free of charge to Telerate Subscribers for up to sixty (60)
days.
(e) Personnel. Telerate will inform Source of any change in the
personnel of its Exchange and Optional Services Group and will use reasonable
efforts to inform Source of changes in Telerate sales and support staff that
would have an impact on Telerate's distribution of the Source Service.
4. Fees; Service Agreements.
(a) Billings; Fees. Telerate or Authorized Distributor shall bill
Source Subscribers no less frequently than on a calendar quarter basis for
subscriptions to the Source Service. Fees for subscriptions to the Source
Service shall be determined from time to time by Source. Source agrees that it
will make changes in subscription fees to the Source Service only once per year,
which shall be effective anywhere other than Japan on January 1 and in Japan on
April 1, and will give Telerate no less than one hundred twenty (120) days'
prior written notice of any such change. In the event Telerate's right to
distribute the Source Service pursuant to this Agreement is converted into a
non-exclusive right in accordance with Section 1(b) hereof, Source agrees that
it will not change Source Subscribers any more money for their subscriptions to
the Source Service than it will charge any subscribers to the Source Service or
services substantially similar thereto that receive such services by means other
than through Telerate.
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(b) Telerate Service Agreements. Telerate or certain Authorized
Distributors shall provide the applicable Telerate Service Agreement or
Authorized Distributor Service Agreement to each Telerate Subscriber prior to or
at the time that such Telerate Subscriber desires to become a Source Subscriber.
Service Agreements provided to Source Subscribers shall disclaim, for the
benefit of optional service providers including Source (as well as for
Telerate), all liability for errors or omissions contained in the applicable
Telerate Service. Copies of representative Telerate Services Agreements
currently being used are available upon request. Source shall not make any
statement regarding Telerate Service that is contradictory or inconsistent with
the then-current version of the applicable Telerate or Authorized Distributor
Service Agreement.
(c) Source Service Agreement. Source shall have the right to provide
its own Service Agreement (the "Source Service Agreement") to each Source
Subscriber. Source will not use the Source Service Agreement until Telerate has
approved the form of such Source Service Agreement, which approval will not be
unreasonably withheld. Telerate will not make any statement regarding the Source
Service that is contradictory or inconsistent with the Source Service Agreement
or the then-current version of the applicable Telerate or Authorized Distributor
Service Agreement.
5. Division of Charges.
(a) Telerate's Fee.
(i) Calculation. Except as provided in subsection (b) of this
Section 5, Telerate shall be entitled to a fee equal to thirty-five percent
(35%) of the
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"Net Subscription Charges" (as defined below) billed for each contract year to
Source Subscribers. All fees due Authorized Distributors in respect of their
distribution of the Source Service shall be paid by Telerate. The term "Net
Subscription Charges" shall mean amounts billed to Source Subscribers (excluding
all sales or other similar taxes) by Telerate (or by Authorized Distributors) in
respect of subscriptions to the Source Service less any adjustments permitted by
clause (iii).
(ii) The fee due Telerate shall be equal to fifty percent
(50%) of the Net Subscription Charges if Source exercises its right to convert
Telerate's right to distribute __________ Service to a non-exclusive right as
provided for by Section ___ of this Agreement. Such adjustment, if made, shall
not affect the provisions of Section 5(b) hereof.
(iii) Adjustments. Source agrees to allow Telerate to adjust
the Net Subscription Charges based on its billings for any billing period to
reflect amounts deemed uncollectible __________ it billed in error or credits it
gave in the ordinary course of business to Source Subscribers.
(b) Sales Commission. For each new subscription to the Source Service
sold to a Telerate Subscriber by a salesperson working for Telerate or an
Authorized Distributor, Source shall pay to Telerate an amount equal to the
first month's fee charged to the Source Subscriber ("Sales Commission"). The
payment of the Sales Commission shall be in lieu of any amounts that otherwise
would be payable under subsection (a) of this Section 5 for the first month of
such subscription. For purposes of this Section 5(b), a renewal of an existing
subscription to the Source Service shall
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not be a "new" subscription. The preceding provision shall not be deemed to
increase Telerate's obligations to market and promote subscriptions to the
Source Service set forth in Section 3(a).
(c) Payment. Within 30 days after the end of each month, Telerate shall
deliver to Source a report showing the Net Subscription Charges for such month,
the amounts due Source in respect thereof and the Sales Commissions due
Telerate, together with a check payable to Source for the net amount. Telerate
shall pay Source in U.S. Dollars except for payments attributable to French,
German, and Swiss Source Subscribers which payments will be made in their
respective local currencies.
(d) Records. Telerate shall maintain complete and accurate books and
records (collectively, the "Records") with respect to all amounts it billed to
Source Subscribers in respect of subscriptions to the Source Service and any
adjustments thereto made pursuant to subsection (a) of this Section 5 and all
Sales Commissions due from Source. Source and its representatives and auditors
shall have the right upon at least thirty (30) days' prior written notice to
inspect the Records during normal business hours no more frequently than twice
per year. All information gained by Source and its representatives and auditors
from such inspection will be kept in strict confidence and will be used solely
for the purpose of verifying the accuracy of the computation of the amounts due
hereunder. Source agrees to cause its representatives and auditors to execute a
confidentiality agreement with Telerate prior to their inspection of the
Records.
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6. Copyright.
Source represents and warrants to Telerate that Source or its licensors
own the Source Service and the copyright thereto, and that Source has the right
to authorize Telerate to distribute the Source Service under this Agreement.
Telerate agrees it is not acquiring under this Agreement any proprietary
interest in the Source Service and agrees not to challenge the claim of Source
or its licensors to the ownership of the Source Service and the copyright
thereto. Telerate agrees to implement reasonable measures requested by Source to
make the copyright claim of Source or its licensors known to Source Subscribers
and to assist Source (at Source's expense) in the defense or prosecution of any
copyright claims.
7. Indemnification.
(a) By Source. In the event any claim is brought by any third party
against Telerate that relates to, arises out of or is based upon the Source
Service or the failure of Source to comply with any law, rule or regulation
(including, without limitation, the Investment Advisers Act of 1940 or the
Commodity Exchange Act), Telerate shall promptly notify Source, and Source shall
defend such claim at Source's expense and under Source's control. Source shall
indemnify and hold harmless Telerate against any judgment, liability, loss, cost
or damage (including litigation costs and reasonable attorneys' fees) arising
from or related to such claim whether or not such claim is successful provided
that the foregoing indemnification shall not apply to any claim arising from
Telerate's negligence or misconduct. Telerate shall have the right, at its
expense, to participate in the defense of such claim through counsel of its own
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choosing; provided, however, that Source shall not be required to pay any
settlement amount that it has not approved in advance.
(b) By Telerate. In the event any claim is brought by any third party
against Source that relates to, arises out of or is based upon any error caused
by Telerate in transmitting the Source Service, Source shall promptly notify
Telerate, and Telerate shall defend such claim at Telerate's expense and under
Telerate's control. Telerate shall indemnify and hold harmless Source against
any judgment, liability, loss, cost or damage (including litigation costs and
reasonable attorneys' fees) arising from or related to such claim, whether or
not such claim is successful provided that the foregoing indemnification shall
not apply to any claim arising from Source's negligence or misconduct. Source
shall have the right, at its expense, to participate in the defense of such
claim through counsel of its own choosing; provided, however, that Telerate
shall not be required to pay any settlement amount that it has not approved in
advance.
8. Term; Termination.
(a) Term. The initial term of this Agreement shall commence as of the
date hereof and shall terminate on the fifth anniversary hereof (the "Initial
Term"). The term of this Agreement shall automatically be extended for one or
more periods of two years (a "Renewal Term), unless either party sends to the
other a notice of its election not to renew at least one hundred eighty (180)
days prior to the end of the Initial Term, or any Renewal Term, as the case may
be.
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(b) Default. If either party shall default in the performance of or
compliance with any provision contained in the Agreement and such default shall
not have been cured within thirty (30) days after written notice thereof shall
have been given to the appropriate party, the party giving such notice may then
give further written notice to such other party terminating this Agreement, in
which event this Agreement and any other rights granted hereunder shall
terminate on the date specified in such further notice.
(c) Change in Control. If there occurs during the term hereof any
change in the control of either party, as defined below, then the other party
may terminate this Agreement upon at least thirty (30) days' prior written
notice to the other. A change in the control of a party shall be deemed to have
occurred upon a change in the possession of the ultimate power to, directly or
indirectly, direct or cause the direction of the management or the policies of
such party, whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding the above, Source shall only be deemed to have
undergone a change in control if the party having such ultimate power is a
competitor of Telerate.
(d) Insolvency. In the event that either party hereto shall be adjudged
insolvent or bankrupt, or upon the institution of any proceedings by it seeking
relief, reorganization or arrangement under any laws relating to insolvency, or
if an involuntary petition in bankruptcy is filed against such party and said
petition is not discharged within sixty (60) days after such filing, or upon any
assignment for the benefit of its creditors, or upon the appointment of a
receiver, liquidator or
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trustee of any of its assets, or upon the liquidation, dissolution or winding up
of its business (an "Event of Bankruptcy"), then the party involved in any such
Event of Bankruptcy shall immediately give notice thereof to the other party,
and the other party at its option may terminate this Agreement upon written
notice.
9. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be
delivered in person, sent by overnight courier service, or sent by facsimile
transmission, to the address of the party set forth below, or to such other
addresses as may be stipulated in writing by the parties pursuant hereto. Unless
otherwise provided, notice shall be effective on the date it is officially
recorded as delivered.
(i) If to Telerate, to:
Telerate Systems Incorporated
200 Liberty Street
New York, NY 10281
Attention: President
with a copy to:
Telerate Systems Incorporated
200 Liberty Street
New York, NY 10281
Attention: Legal Department
(ii) If to Source, to:
Fintrend S.A.
52, avenue des Champs-Elysees, 75008
Paris, France
Attention: Chief Executive
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(b) Amendment; Assignment. This Agreement may not be amended except by
written instrument executed by Source and Telerate. Neither party may assign
this Agreement to any third party, other than an affiliate, without the prior
written amount of the other. Any assignment of this Agreement to an affiliate
shall not relieve the assigning party of any of its obligations or liabilities
under this Agreement.
(c) Survival of Certain Provisions. Notwithstanding the termination of
this Agreement, those provisions of this Agreement that by their nature are
intended to survive such termination shall survive, including without
limitation, the provisions of Sections 7 and 9.
(d) Consequential Damages. Except pursuant to Section 7, neither party
shall be liable for any consequential, indirect, incidental or special damages,
even if advised of the possibility of such damages.
(e) Force Majeure. Performance by either party under this Agreement
shall be subject to and shall be excused to the extent that it shall be rendered
impossible by any event, condition or occurrence beyond the reasonable control
of such party.
(f) Entire Agreement. This Agreement contains the entire understanding
of the parties on the subject hereof and terminates and supersedes all previous
verbal and written agreements on such subject, including without limitation, the
agreement dated May 1, 1986 between the parties.
(g) Relationship of the Parties. This Agreement does not and shall not
be deemed to constitute a partnership or joint venture between the parties and
neither
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party nor any of its directors, officers, employees or agents shall, by virtue
of the performance of their obligations under this Agreement, be deemed to be an
employee of the other.
(h) "Affiliate" Defined. For purposes of this Agreement, the term
"affiliate" and its derivatives shall mean, with respect to any individual or
entity, any other individual or entity directly or indirectly, through one or
more intermediaries, controlling, controlled by, or under common control with
such individual or entity. The term "control" and its derivatives, as used in
the immediately preceding sentence, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of any entity, whether through the ownership of voting securities, by
contract otherwise.
(i) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to the
choice of law principles thereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed
this Agreement as of the 23rd day of July 1991, to be effective as of the date
first above written.
FINTREND S.A. TELERATE SYSTEMS INCORPORATED
By: /s/ Riccardo Tutino By: /s/ William R. Clabby
------------------------ --------------------------
Riccardo Tutino William R. Clabby
Managing Director Vice President
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Index to Exhibits
Name Description
- ---- -----------
A Description of Source Service
B Telerate's Right to Distribute the Source Service through
Other Technology
C Telerate's Right of First Negotiation to Distribute New Source
Services
D Equipment and Services
E Contacts for Approval of Promotional Materials
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Exhibit A
Description of Source Service
The Source Service consists of information on technical analysis of
currencies, cross-rates, United States economic indicators and commentary. The
Source Service will be updated periodically each day.
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Exhibit B
Telerate's Right to Distribute the Source
Service through Other Technology
If, at any time during the term of this Agreement, Source itself
desires to distribute the Source Service through Other Technology, Source shall
give a written notice to Telerate that describes the nature and details of such
Other Technology. Whenever Source gives such notice, Telerate shall have the
right to distribute the Source Service _________ on the same terms as contained
in __________ not notify Source of its intention to distribute the Source
Service through such Other Technology ___________ receipt of the notice referred
to above, Source shall be free to itself distribute the Source Service through
the Other Technology.
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Exhibit C
Telerate's Right of First Negotiation
to Distribute New Source Services
If, at any time during the term of this Agreement, Source desires to
electronically distribute a New Source Service, as defined in Section 1(c),
Source shall give a written notice to Telerate that describes (i) the nature of
such New Source Service, and (ii) the terms upon which Source would be willing
to retain Telerate to perform such services. __________ notice, Telerate shall
have the right to __________ distribution of such New Source Service with
Source. If Telerate and Source do not reach agreement on distribution of such
New Source Service within ninety (90) days of receipt of the notice referred to
above, Source shall be free to offer the New Source Service to third parties
provided that any agreement to distribute the New Source Service by a third
party shall be on the same terms as offered to Telerate in the notice or terms
more favorable to Source.
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Exhibit D
Equipment and Services
Europe/Gulf Charges*
----------- --------
1 TDPF 13,000
20 Workstations 33,200
5 Standard Systems 16,300
17 Slave Screens ______
10 Additional Systems ______
10 Keyboard Interface 250
2 Standard Systems 0
Communication Charges ______
1 TeleTrac Terminal 8,800
2 Add'l TeleTrac Terminals 9,320
Communication Charges 650
1 TeleTrac Terminal 3,800
Communication Charges 900
Americas
--------
2 Standard __________ with
Printer and Basic Telerate Plus 0
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* All charges are monthly and __________.
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Exhibit E
Contacts for Approval of Promotional Materials
For Telerate:
Stacey Halio
Telerate Systems Incorporated
Harborside Financial Center
600 Plaza Two
Jersey City, NJ _____-3992
Telephone #201-309-4660
Facsimile #201-333-9091
For Source:
Riccardo Tutino
Fintrend S.A.
52, avenue des Champs-Elysees
75008, Paris, France
Telephone #__________
Facsimile #331-__________
Either party may change its designated "contact" person by giving written notice
to the other.