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The Chairman shall be appointed alternately by
MarketWatch and Financial Times for periods of two Financial Years. The
Chairman shall have no second or casting vote. The first Chairman shall be
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Appointment
and removal of Directors
9.4 A party may appoint or remove a Director nominated
by it by notice to the JVC signed by it or on its behalf.
9.5 The appointment or removal of any Director , Chief
Executive or Editor in Chief shall take effect when the notice is delivered to
the JVC, unless the notice indicates otherwise.
Quorum
9.6 The quorum for transacting business at any Board
meeting (other than an adjourned meeting) shall be at least one Financial Times
Director and at least one MarketWatch Director present when the relevant
business is transacted. If that quorum is not present within thirty minutes
from the time when the meeting should have begun or if during the meeting there
is no longer a quorum, the meeting shall be adjourned for seven (7) Business
Days and at that adjourned meeting any two Directors (or their alternates)
present shall be a quorum. A Director shall be regarded as present for the
purposes of a quorum if represented by an alternate Director in accordance with
clause 9.9.
Notice and
Agenda
9.7 At least fourteen days written notice shall be
given to each Board member of any Board meeting, unless at least one Financial
Times Director (or his alternate) and at least one MarketWatch Director (or his
alternate) approve a shorter notice period. Any notice shall include an agenda
identifying in reasonable detail the matters to be discussed at the meeting
together with copies of any relevant papers to be discussed at the meeting. If
any matter is not identified in reasonable detail, the Board shall not decide on
it, unless all Board members agree in writing.
Frequency
of Meetings
9.8 The Parties shall procure that the Board meets at
least quarterly.
Board
voting
9.9 The Board shall decide on matters by simple
majority vote. Each Director shall have one vote. Any Director who is absent
from a meeting may nominate any other Director to act as his alternate and to
vote in his place at the meeting. If the parties are not represented at any
Board meeting by an equal number of Directors (whether present in person or by
alternate), then one of the Directors, nominated by the party which is
represented by the fewer Directors, who is present may exercise such additional
vote or votes at that meeting as results in the Directors so present
representing each party having in aggregate an equal number of votes.
Reserved
matters
Use of
powers
10.1 The parties shall use their respective powers to
ensure, so far as they are legally able, that no action or decision relating to
any of the matters specified in clause 10.2 (Reserved Matters) is
taken by the JVC, any Subsidiary of the JVC or any of the officers or managers
within the JVC Group unless each of the Financial Times Directors and the
MarketWatch Directors gives his or her prior approval (whether or not through
his or her alternate) to proceed. Any item provided for in an approved Budget
shall not require further consent as a Reserved Matter under clause 10.2 below
unless (a) the related expenditure would exceed 110 per cent of the amount
approved in the Budget; (b) aggregate expenditures would have exceeded 105 per
cent. of the sums provided for in respect of the relevant items in the approved
Budget; or, being an item mentioned in clause 10.2(l) or 10.2(q), the item would
exceed at all the amount approved for it in the Budget.
Reserved
Matters
10.2 The Reserved Matters are:
(a) Memorandum and Articles
adopting or altering the Memorandum and Articles or
other constitutional documents of the JVC;
(b) changes in share capital
changing the authorised or issued share capital of
the JVC;
(c) issuance of Shares
the issue of shares or instruments convertible into
shares by any Subsidiary of the JVC, otherwise than to the JVC or its designated
nominees;
(d) securities convertible into Shares
issuing debentures, securities convertible into
Shares, Share warrants or options in respect of Shares;
(e) change in nature of Business
materially changing the nature or scope of the
Business (as described in clause 2.1) of the JVC including any decision to
change or extend the Business beyond the Territory;
(f) Business Plan, Budgets and Funding Schedule
adopting or materially changing the Business Plan,
Budget or Funding Schedule;
(g) dividends
declaring any dividend or a pay out of the general
reserves or the redemption of any equity securities in the capital of the
JVC;
(h) changing the branding
any proposal to alter the branding of the
Business;
(i) Board of Directors
increasing or decreasing the size of the Board or the
appointing of any committee of Directors or local board or delegation of the
powers of the Directors to a committee or local board, in any such case
otherwise than as expressly provided for in this Agreement;
(j) dissolution, liquidation, winding up
doing or permitting to be done anything as a result
of which the JVC may be wound up (whether voluntarily or compulsorily), except
as otherwise provided for in this Agreement;
(k) encumbrances
creating a fixed or floating charge , lien (other
than a lien arising by operation of law) or other encumbrance over all or part
of its undertaking or assets except to secure its indebtedness to its bankers
for sums borrowed in the normal course of the Business or as otherwise approved
pursuant to this Clause 10.2;
(l) borrowings
borrowing or raising money (including entering into
any finance lease, but excluding normal trade credit) to any extent not provided
for as a cost item in an approved Budget;
(m) advances
making a loan or advancing or giving credit (other
than normal trade credit) in excess of L5,000 to any person, other than the JVC
or a wholly-owned Subsidiary of the JVC and excluding deposits with bankers
repayable upon the giving of not more than seven (7) days notice;
(n) guarantees
giving a guarantee or indemnity to secure the
liabilities or obligations of any person (other than the JVC or a wholly-owned
Subsidiary of the JVC);
(o) sale or other disposition of assets
selling, leasing, creating an interest in or
otherwise disposing of a material part of its undertaking or assets, or
contracting to do so, otherwise than in the normal course of the
Business;
(p) merger, reorganisation, recapitalization, etc.
any merger, consolidation, acquisition, divestiture,
joint venture, partnership or other business combination with, by or of the
Company into or with any other person ;
(q) capital expenditures
entering into of any contract or arrangement not
provided for in an approved Budget involving expenditure on capital account or
the realisation of capital assets if the amount or the aggregate amount of the
expenditure or realisation by the JVC and all of its Subsidiaries would exceed
L5,000 in any year or in relation to any one project; and for the purpose of
this sub-clause the aggregate amount payable under any agreement for hire, hire
purchase or purchase on credit sale or conditional sale terms is deemed to be a
capital expenditure incurred in the year in which the agreement is entered
into;
(r) material agreements
entering into a contract or arrangement which is not
in the normal course of the Business and on arms-length terms;
(s) transactions with Financial Times or MarketWatch Groups
any transaction (but excluding the entering into by
the JVC of the IP Transaction Documents) by the JVC with any Financial Times
Group Member or MarketWatch Group Member which is either:
(i) outside the ordinary course of business; or
(ii) within the ordinary course of business but has a
value of more than L10,000 or is not on commercial arm's length terms;
(t) Employee incentives
creating or altering any scheme for the
incentivisation of the JVC's Employees and/or management;
(u) agreements for real property
taking or agreeing to take an interest in, or license
over, any real property;
(v) investments
acquiring shares, or securities of a person other
than a wholly-owned Subsidiary of the JVC or enters into a partnership or profit
sharing arrangement with any person;
(w) subsidiaries
the formation of, acquisition of or sale to another
party of any subsidiary of the JVC;
(x) initial public offering
any proposal to Shareholders for filing any
registration statement, selecting any underwriter, or taking any other action to
implement an initial public offering of any of the shares of the capital stock
of the JVC;
(y) commencing litigation
initiating (by commencement of proceedings) or the
settling of any litigation, arbitration or mediation (save for debt collection
in the ordinary course of business) or any claim with the exception of measures
requiring immediate relief or arising out of or relating to the breach by any
Shareholder of its obligations under this Agreement;
(z) Chief Executive and Editor-in-Chief
appointing either of the JVC's Chief Executive or Editor-in-Chief
except as other provided herein;
(aa) legal counsel
appointing or removing the JVC's outside legal
counsel; or
(bb) auditors
appointing or removing the JVC's auditors.
Deadlock
10.3 If a deadlock arises because the Board fails to
agree on any of the Reserved Matters or any other management matter requiring
its decision, the matter shall be referred for resolution to a Director who is
not also employed as an executive of a party or any Affiliate of such party (an
Outside Director) of each of Financial Times and MarketWatch with
a view to it being resolved as early as possible in the best interests of the
JVC. Each party shall endeavour, and shall instruct their Outside Directors to
endeavour, to resolve any disagreement in the best interests of the JVC.
Shareholder
deadlock
10.4 If a dispute relating to the JVC's affairs cannot
be resolved within thirty days after referring the dispute to the parties'
respective Outside Directors pursuant to clause 10.3 (a shareholder
deadlock), and the Shareholder Deadlock is with respect to a Reserved
Matter or otherwise materially adversely affects the JVC's ability to carry on
the Business, then either party may give written notice (a Warning
Notice) that it intends to implement the deadlock procedure provided in
this clause 10. If the dispute cannot be resolved within thirty (30) days
of the Warning Notice, either party may within a further thirty days notify the
other in writing (a Deadlock Notice) of such fact. A Deadlock
Notice is irrevocable.
Deadlock
Notice
10.5 Within a period of thirty days after receiving a
Deadlock Notice, both parties shall be required to concur in taking all steps
required promptly to place the JVC into liquidation.
Default (including
Insolvency)
Event of
Default
11.1 It is an Event of Default in relation to either
party (a Defaulting Party):
(a) if a Defaulting Party (or any member of its Group)
does not pay any amount payable by it under any of clauses 7.1(b), and 8.2
of this Agreement in the manner in which it is expressed to be payable in this
Agreement within ten (10) Business Days of the due date;
(b) if a Defaulting Party (or any member of its Group)
commits a breach of any of its other obligations under this Agreement (not being
a breach referred to in clause 11.1(a)) or under any of the IP Transaction
Documents which, alone or taken together with any other such breach or breaches,
is material in the context of the Business of the JVC and the other party (the
Non-Defaulting Party) serves written notice upon the Defaulting
Party specifying the breach in reasonable detail and requiring the Defaulting
Party immediately to stop or procure the stopping of the breach and if the
breach is remediable, to make, or cause to be made, good the results of the
breach within thirty (30) days, and (i) the Defaulting Party fails to so stop,
or (ii) if either the breach is not remediable, or, if remediable, is not
remedied within such thirty (30) days;
(c) if that party convenes a meeting of its creditors or
makes or proposes any arrangement or composition with, or any assignment for the
benefit of, its creditors; or
(d) a court of competent jurisdiction makes an order or a
resolution is passed, for the dissolution or administration of that party
(otherwise than in the course of a reorganisation or restructuring previously
approved in writing by the other party, such approval not to be unreasonably
withheld or delayed); or
(e) any person other than a member of the other party's
Group takes any step (and it is not withdrawn or discharged within ninety (90)
days) to appoint a liquidator, manager, receiver, administrator, administrative
receiver or other similar officer in respect of any assets which include either
(i) the Shares held by that party or any Subsidiary of it or (ii) shares in that
party or any holding company of it.
Put Option
Notices and Call Option Notices
11.2 If an Event of Default occurs, the Non-Defaulting Party may
elect to:
(a) require the Defaulting Party to buy (the Put
Option) all of the Non-Defaulting Party's Shares on the terms set out in
clause 11.3. The Put Option may be exercised by notice (the Put Option
Notice) from the Non-Defaulting Party given at any time within thirty
(30) days of the Event of Default (and following any cure period, if
applicable);
(b) require the Defaulting Party to sell to the Non-Defaulting Party
(the Call Option) all of the Defaulting Party's
Shares on the terms set out in clause 11.4. The Call Option may be
exercised by notice (the Call Option Notice) from the Non-
Defaulting Party given at any time within thirty (30) days of the Event of
Default; or
(c) require by notice to the Defaulting Party that the JVC
be put into liquidation immediately.
11.3 If a Put Option Notice is served, it must
state:
(a) the price at which the Non-Defaulting Party's Shares
are to be bought; and
(b) the terms (if any) on which the Non-Defaulting Party
in its absolute discretion is willing to continue to provide any or all of its
Core Services. For the avoidance of doubt the provisions of this clause 11.3
shall not constitute an obligation on the Non-Defaulting Party to continue to
provide its Core Services.
11.4 If a Call Option Notice is served:
(a) it must state the price at which the Defaulting
Party's Shares are to be sold; and
(b) the Defaulting Party must continue to provide its Core
Services on the same terms as such services have been provided in the twelve
month period prior to the date of the Call Option Notice for (subject to the
terms of the IP Transaction Documents) a period not exceeding two years from the
date of the Call Option Notice.
Reference
to Expert
11.5 If the Defaulting Party notifies the Non-Defaulting Party in
writing within ten days of the relevant notice being
received by the Defaulting Party that is does not accept the price payable for
the Shares stated in either the Put Option Notice or the Call Option Notice (as
the case may be) (the Option Price) and requires that a third
party evaluates the price (the Evaluation Notice), an
internationally recognised investment advisor (the Expert) shall
be appointed to determine the price at which the Shares shall be transferred,
which shall be the Fair Price of the Shares at the date of the Put Option Notice
or the Call Option Notice (as the case may be) (the Sale Price).
The Expert shall be such internationally recognised investment advisor as the
Defaulting Party and the Non-Defaulting Party may agree or, if they fail to
agree within fifteen (15) days of the Evaluation Notice (the Failure
Date), the Expert shall be an investment advisor independent of both the
Defaulting Party and the Non-Defaulting Party and which shall not have been
engaged or otherwise performed services for the JVC or any of its Shareholders
during any of the five years prior to the Default Date, as the President for the
time being of the International Chamber of Commerce appoints at the request of
the Defaulting Party. If the Defaulting Party fails to make such a request
within fifteen (15) days from the Failure Date, it shall be deemed to have
withdrawn the Evaluation Notice and accepted the Option Price.
The Expert shall act as an expert and not as an arbitrator
and its decision, which shall be incorporated in a Certificate (the
Certificate), shall be final and binding on the parties. The
Expert's fees and expenses shall be born in such proportion as the Expert shall
determine and such determination as to such fees and expenses shall be final and
binding as the parties.
Core Services
11.6 In the case of a Put Option Notice only, the
Defaulting Party shall confirm to the Non-Defaulting party whether it requires
the Non-Defaulting Party to continue to provide its Core Services as offered in
the Put Option Notice. The Non-Defaulting Party shall be under no obligation to
include in the Put Option Notice an offer to further provide such Core Services.
The Non-Defaulting Party shall be obliged to provide such Core Services only on
the terms and under the conditions which are set out in the Put Option Notice.
Completion
11.7 Subject only to any Regulatory Approvals or any
requisite approval of shareholders, including of a Holding Company, in general
meeting (Approvals):
(a) in the case of a Call Option Notice, the Defaulting
Party shall be bound to sell and the Non-Defaulting Party shall be bound to buy
the Defaulting Party's Shares; and
(b) in the case of a Put Option Notice, the Non-Defaulting
Party shall be bound to sell and the Defaulting Party shall be bound to buy the
Non-Defaulting Party's Shares
in each case at the:
(a) Option Price, if the Defaulting Party fails to notify
the Non-Defaulting Party within the ten day period referred to in clause
11.5;
(b) Sale Price, if the Defaulting Party notifies the
exercise of its rights under clause 11.5.
In such event, completion of the sale and purchase of the
Shares shall take place within sixty (60) days of the day on which the parties
become so bound (the Reference Date) or, if any Approvals have not
been obtained by the end of that period, within ten (10) days of the date on
which the last Approval to be obtained is obtained. If any Approval has not
been obtained within one-hundred and eighty (180) days after the Reference Date,
the Put Option Notice or Call Option Notice (as the case may be) shall lapse and
have no further effect.
Transfer
terms
11.8 The transfer of the Shares shall be on the
following terms:
(a) the Shares shall be sold free from all liens, charges
and encumbrances and third party rights, together with all rights of any nature
attaching to them including all rights to any dividends or other distributions
declared, paid or made after the date of the Call Option Notice or Put Option
Notice (as the case may be);
(b) with effect from the completion date with respect to a
Call Option Notice, the Non-Defaulting Party shall assume any obligations of the
Defaulting Party and, with respect to a Put Option Notice, the Defaulting Party
shall assume the obligations of the Non-Defaulting Party and any member of their
respective Groups under, and shall ensure the release of, any guarantees,
indemnities, letters of comfort and/or counter-indemnities to third parties in
relation to the business of the JVC. This is without prejudice, in the case of
a Call Option Notice, to the Non-Defaulting Party's right and, in the case of a
Put Option Notice, the Defaulting Party's right to receive a contribution from
the other party for its share of any claims attributable to any liabilities
arising in respect of the period before the completion date;
(c) in the case of a Call Option Notice, the Defaulting
Party shall deliver to the Non-Defaulting Party duly executed transfer(s) in
favour of the Non-Defaulting Party or as it may direct and, in the case of a Put
Option Notice, the Non-Defaulting Party shall deliver to the Defaulting Party
duly executed transfer(s) in favour of the Defaulting Party or as it may direct,
together with, if appropriate, share certificate(s) for the Shares and a
certified copy of any authority under which such transfer(s) is/are
executed;
(d) against delivery of the transfer(s), the Option Price
or the Sale Price (as the case may be) shall be paid by telegraphic transfer to
the relevant party's bank account;
(e) the parties shall ensure (insofar as they are able)
that the relevant transfer or transfers (subject to their being duly stamped,
stamp duty to be paid by the party acquiring the Shares pursuant to the Put
Option Notice or the Call Option Notice as the case may be) are registered in
the name of the relevant party or as it may direct;
(f) the parties shall do all such other things and execute
all other documents (including any deed) to give effect to the sale and purchase
of the Shares pursuant to this clause 11.
Power of attorney
11.9 Each of Financial Times and MarketWatch hereby
irrevocably, and by way of security for the performance of its obligations under
this clause 11, appoints the other its attorney in its name and as its act to
execute, sign, deliver and do all such deeds, documents, acts or things which
the attorney reasonably judges to be necessary for the performance of the
obligations of its appointor under this clause 11.
Liquidation upon Milestone
Termination Event
11.10 Upon the occurrence of a Milestone Termination
Event, either party may by notice to the other and to the JVC require (subject
to the Board's determination otherwise as provided below in this clause 11.10)
that the JVC be put into liquidation. The Board may, upon receipt of such
notice by the JVC, within ten (10) days thereafter decide and notify the parties
that the JVC shall not be put into liquidation.
Transfer of
shares
General
12.1 The provisions of this clause 12 apply in
relation to any transfer, or proposed transfer, of Shares in the JVC or any
interest in those Shares.
Restriction
on
transfer
12.2 Except as permitted by this clause 12 or with the
prior written consent of the other party, no party (or any Shareholder in its
Group) shall:
(a) transfer any Shares;
(b) grant, declare, create or dispose of any right or
interest in any Shares; or
(c) create or permit to exist any pledge, lien, fixed or
floating charge or other encumbrance over any Shares.
Permitted
Transfers
12.3 Except for transfers for which consent is given
under clause 12.2 or for intra-Group transfers permitted under clause 12.11, no
party or any Shareholder in its respective Group may transfer Shares unless it
(the Seller) and/or members of its Group transfer all (and not
some only) of the Shares collectively held by them (the Seller's
Shares).
Initial
period
12.4 Except for intra-Group transfers permitted under
clause 12.11, no Shareholder shall transfer any Shares during a period of five
(5) years from the date of this Agreement without the prior written consent of
the other party.
Transfer
Notice
12.5 After the end of the initial period referred to
in clause 12.4 and before the Seller (and/or any Shareholder in its Group) makes
any transfer of the Seller's Shares, the Seller shall first give the other party
(the Continuing Party) notice (a Transfer Notice) of
any proposed transfer together with details of any proposed third party
purchaser (a Third Party Purchaser), the purchase price and all
other material terms which the Seller and the Third Party Purchaser have agreed.
A Transfer Notice is irrevocable except as provided in this clause 12.
Right of
Continuing Party to
purchase
12.6 On receipt of the Transfer Notice, the Continuing
Party shall have the right to buy all (but not some only) of the Seller's Shares
at the price specified in the Transfer Notice (or at such other price as the
Seller and the Continuing Party agree) by giving notice to the Seller within
sixty days of receiving the Transfer Notice (the Acceptance
Period). The parties' obligations to complete the purchase are subject
to the provisions of clause 12.7.
Obligation
to
complete
12.7 The Continuing Party shall be bound (subject only
to any necessary approvals of its or its Holding Company's shareholders in
general meeting and any Regulatory Approvals) to buy the Seller's Shares on
giving the Seller notice that it is exercising its rights under
clause 12.6. In such event, completion of the sale and purchase of the
Seller's Shares shall take place within thirty (30) days of the giving of the
notice or, if later, the obtaining of all Regulatory Approvals and any
shareholder approval. Notwithstanding the foregoing, such notice and the
Continuing Party's right to buy the Seller's Shares shall cease to have effect
if:
(a) any necessary approval of the Continuing Party's
shareholders in general meeting is not been obtained within the thirty (30) day
period; or
(b) any necessary Regulatory Approval is not obtained
within one-hundred and eighty (180) days of the giving of the notice; or
(c) earlier than the end of the one-hundred and eighty
(180) day period referred to in clause 12.7(b), any relevant authority
conclusively refuses to grant any such Regulatory Approval.
Seller's
right to sell to Third Party
Purchaser
12.8 If the Continuing Party does not exercise its
right to buy under clause 12.6 or any notice given under that clause ceases
to have effect pursuant to clause 12.7, the Seller may (subject to clause 12.9
below) transfer the Seller's Shares on a bona fide arm's length sale to a Third
Party Purchaser at a price not less than the purchase price specified in the
Transfer Notice provided that:
(a) the Third Party Purchaser acquiring the Seller's
Shares would not, in the Continuing Party's reasonable opinion, be materially
detrimental to the JVC's interests;
(b) the Third Party Purchaser (or any shareholder of it)
is not directly or indirectly a substantial competitor of the Continuing Party
or the JVC; and
(c) the transfer is completed within one-hundred and
eighty (180) days after the latest of:
(i) the date of the Transfer Notice; or
(ii) if any notice given by the Continuing Party has
ceased to have effect pursuant to clause 12.7, the date on which that notice
ceased to have effect.
The parties shall give (or ensure that any Shareholders in
their respective Groups shall give) any approvals required by the Articles in
relation to any transfer of Shares permitted by the terms of this clause 12.
Sale
terms
12.9 The sale of any Seller's Shares to the Continuing
Party or a Third Party Purchaser shall be on the following terms:
(a) the Seller's Shares will be sold free from all liens,
charges and encumbrances and third party rights and together with all rights of
any nature attaching to them including all rights to any dividends or other
distributions declared, paid or made after the date of the Transfer Notice;
(b) the Continuing Party/Third Party Purchaser shall
assume, with effect from the completion date, any obligations of the Seller and
any member of its Group under (and shall procure the release of) any guarantees,
indemnities, letters of comfort and/or counter-indemnities to third parties in
relation to the business of the JVC. Where the buyer is the Continuing Party,
any such assumption shall be without prejudice to the Continuing Party's right
to receive a contribution from the Seller for its share of any claims
attributable to any liabilities arising in respect of the period before the
completion date;
(c) if the buyer is a Third Party Purchaser, it shall take
an assignment of, or make available equivalent finance in place of, any loans,
loan capital, borrowings and indebtedness in the nature of borrowing (but
excluding, for the avoidance of doubt, any debts incurred in the ordinary course
of trade which are at the relevant time outstanding on inter-company accounts)
owing at that time from the JVC to the Seller or any member of its Group;
(d) the Seller shall deliver to the Continuing Party/Third
Party Purchaser duly executed transfer(s) in favour of the Continuing
Party/Third Party Purchaser, or as it may direct, together with the appropriate
share certificate(s) in respect of the Seller's Shares and a certified copy of
any authority under which such transfer(s) is/are executed;
(e) against delivery of the transfer(s), the Continuing
Party/Third Party Purchaser shall pay the total consideration for the relevant
Seller's Shares to the Seller by wire transfer of immediately available funds on
the completion date.
(f) the parties shall ensure (insofar as they are able)
that the relevant transfer or transfers (subject to their being duly stamped,
stamp duty to be paid by the Continuing Party/Third Party Purchaser) are
registered in the name of the Continuing Party/Third Party Purchaser or as it
may direct;
(g) the Seller shall do all such other things and execute
all other documents (including any deed) as the Continuing Party/Third Party
Purchaser may reasonably request to give effect to the sale and purchase of the
Seller's Shares;
(h) if the buyer is a Third Party Purchaser, it shall
enter into an agreement with the Continuing Party to be bound (in terms
reasonably satisfactory to the Continuing Party) by provisions corresponding to
the Seller's obligations under this Agreement including (but without limitation)
those under this clause 12. If requested by the Third Party Purchaser, the
Seller shall ensure that all the Directors appointed by it resign and the
resignation(s) take effect without any liability on the JVC for compensation for
loss of office or otherwise.
Agency Authority for
Transfers
12.10 The parties agree that the Board may authorise
any person to execute and deliver the necessary transfers of Shares pursuant to
clause 12.9 and the JVC may receive the purchase price on trust for the
Seller and cause the Continuing Party or the Third Party Purchaser (or such
other person as the Seller may direct pursuant to clause 12.9(d)) to be
registered as the holder of the Shares. The receipt by the JVC for the purchase
money shall be a good discharge to the Continuing Party or the Third Party
Purchaser. The parties shall procure that the JVC shall as soon as practicable
pay to the Seller the purchase money so received by it.
Intra-Group
transfers
12.11 A Shareholder may at any time transfer any of
the Shares held by it to a company which:
(a) (where the transferor is one of the parties itself) is
a wholly-owned Subsidiary of that party; or
(b) (where the transferor is a Subsidiary) is either the
party of which the transferor is a Subsidiary or is a wholly-owned Subsidiary of
the relevant party.
Shareholder
ceasing to be a
Subsidiary
12.12 Each of Financial Times and MarketWatch
undertakes to ensure that any Subsidiary shall transfer all of the Shares which
it then holds to the party of which it is a Subsidiary (or to a wholly-owned
Subsidiary of that party) before any Shareholder in its Group ceases being a
wholly-owned Subsidiary of it at any time.
Bring-
along
12.13 The Seller shall use all reasonable endeavours
(but without involving any financial obligation on its part) to ensure that the
Transfer Notice which it gives under clause 12.5 is accompanied by an offer to
the Continuing Party from the Third Party Purchaser to buy all the Shares held
by the Continuing Party on the same terms (including price per Share) as are set
out in the Transfer Notice. The offer shall be expressed to be irrevocable,
governed by English law and open for acceptance by the Continuing Party during
the Acceptance Period. If the Transfer Notice is not accompanied by such an
offer:
(a) the Acceptance Period for the purposes of clause 12.6
shall, notwithstanding the terms of clause 12.6, be extended to a period of one
hundred and eighty days from the date of receipt of the Transfer Notice;
(b) the Seller shall use all reasonable endeavours during
the extended Acceptance Period (but without involving any financial obligation
on its part) to ensure that:
(i) the Third Party Purchaser makes an offer to the
Continuing Party in the terms of this clause 12.13; and
(ii) the Continuing Party may participate fully at its
own expense in all negotiations and discussions between the Seller and the Third
Party Purchaser or their respective agents; and
(c) subject to any confidentiality obligations owed to
third parties, the Seller shall give the Continuing Party full access to all
documents and information in the Seller's possession or under its custody and
control which:
(i) directly or indirectly relates to the intended
transfer of the Seller's Shares to the Third Party Purchaser; and
(ii) the Continuing Party may require in connection
with negotiations and discussions with the Third Party Purchaser.
Financial
matters,
Information
and
reporting
Accounting
Principles
13.1 The JVC shall adopt accounting principles to be
approved by the Board in relation to its financial statements necessary or
desirable to enable each of the parties hereto and their respective Affiliates
to comply with the financial reporting requirements for public companies in each
of the United Kingdom and the United States.
Auditors
13.2 The JVC's auditors shall be
PricewaterhouseCoopers or such other firm of chartered accountants of recognised
international standing as the parties may agree from time to time.
Financial
Year
13.3 The JVC's Financial Year shall be
31 December, unless the parties agree otherwise.
Dividend
policy
13.4 The parties shall, unless they agree otherwise in
relation to any Financial Year, take all steps to ensure that in respect of each
Financial Year the JVC distributes promptly by way of dividend all profits,
available for distribution in accordance with applicable law, that are surplus
to the funding requirements shown in the draft Budget for the following
Financial Year attached to the relevant Business Plan. The JVC's Memorandum and
Articles shall provide for the ability to pay interim dividends whenever legally
permitted.
Inspection
and
information
13.5 Upon reasonable notice to the management of the
JVC each party may examine the separate books, records and accounts to be kept
by the JVC during its regular business hours. Each party shall be entitled to
receive all information, including monthly management accounts and operating
statistics and other trading and financial information as and, in such form as a
party reasonably requires to keep it properly informed about the business and
affairs of the JVC, to enable such party to comply with all applicable laws,
rules and regulations applicable to such party in its jurisdiction of
organisation or as required by any stock exchanges on which its shares are
listed and traded and generally to protect its interests as a shareholder.
Accounts,
Business Plan and
Budgets
13.6 Without prejudice to the generality of clause
13.5 the parties shall procure that:
(a) the JVC shall supply the parties with: (i) copies
of unaudited accounts for the JVC (complying with all relevant legal
requirements) not more than thirty (30) days following the end of the first
three (3) quarterly periods of each Financial Year, and (ii) a copy of the
audited annual accounts for the JVC not later than sixty (60) days following the
end of each Financial Year;
(b) the draft Business Plan for any Financial Year,
including the draft Budget and any requisite draft Funding Schedule, shall be
submitted to the Board for approval at the latest three months before the end of
the previous Financial Year and that the Board shall use its best efforts to
agree the Business Plan for any Financial Year at the latest three months after
the beginning of the Financial Year to which it relates;
(c) if the Board has not approved the terms of the draft
Budget at the beginning of the respective Financial Year, then the Business of
the JVC shall continue for three months after the beginning of the Financial
Year in question on the Budget for the previous Financial Year plus 3%;
(d) the Board shall as soon as reasonably practical, but
in any event not more than fifteen Business Days after the end of each calendar
month, prepare management accounts (which, for the avoidance of doubt, compare
the JVC's performance against the Budget and Business plan) for the JVC; and
(e) the Board shall report at least monthly in writing on
the implementation of the Business Plan and on all transactions outside the
ordinary course of business and shall cause copies of the relevant Board Minutes
to be settled and distributed promptly to the parties.
Confidentiality
Confidentiality
obligation
14.1 Each party shall use (and shall ensure that each
of its Subsidiaries shall use) all reasonable endeavours to keep confidential
(and to ensure that its officers, employees, agents and professional and other
advisers keep confidential) any information:
(a) which it may have or acquire before or after the date
of this Agreement in relation to the JVC's customers, business, assets or
affairs; this includes, without limitation, any information provided pursuant
to clause 11;
(b) which it may have or acquire before or after the date
of this Agreement in relation to the customers, business, assets or affairs of
any Financial Times Group Member (if the party is MarketWatch) or of any
MarketWatch Group Member (if the party is Financial Times) resulting
from:
(i) negotiating this Agreement;
(ii) being a shareholder in the JVC;
(iii) having appointees on the Board; or
(iv) exercising its rights or performing its
obligations under this Agreement; or
(c) which relates to the contents of this Agreement (or
any agreement or arrangement entered into pursuant to this Agreement including,
without limitation, the IP Transaction Documents).
Neither party shall use for its own business purposes or
disclose to any third party any such information (collectively,
Confidential Information) without the consent of the other party
except to the extent that disclosure of such Confidential Information is
necessary for the purposes of performing their obligations under this Agreement.
In performing its obligations under this clause 14, each party shall apply the
confidentiality standards and procedures it applies generally in relation to its
own confidential information.
Exceptions
from confidentiality
obligation
14.2 The obligation of confidentiality under clause
14.1 does not apply to:
(a) the disclosure (subject to clause 14.3) on a 'need to
know' basis to a company which is another Financial Times Group Member or
MarketWatch Group Member (as the case may be) where the disclosure is reasonably
necessary for the purpose of this Agreement;
(b) information which is independently developed by the
relevant party or acquired from a third party to the extent that it is acquired
with the right to disclose the same;
(c) the disclosure of information to the extent required
to be disclosed by law, any stock exchange regulation or any binding judgement,
order or requirement of any court or other competent authority provided, that
the disclosing party shall first give the other party such prior notice of such
requirement as is reasonably practicable and to the extent that it is reasonably
practicable, shall act to obtain or permit the other party to act to obtain
confidential treatment for all such Confidential Information required to be
disclosed;
(d) the disclosure of information to any tax authority to
the extent reasonably required for the purposes of the tax affairs of the party
concerned or any member of its Group;
(e) the disclosure (subject to clause 14.3) in confidence
to a party's professional advisers of information reasonably required to be
disclosed for a purpose reasonably incidental to this Agreement;
(f) information which becomes within the public domain
(otherwise than as a result of a breach of this clause 14); or
(g) any announcement made in accordance with the terms of
clause 24.
Employees,
agents and
advisers
14.3 Each party shall inform (and shall ensure that
any Subsidiary shall inform) any officer, employee or agent or any professional
or other adviser advising it in relation to the matters referred to in this
Agreement, or to whom it provides Confidential Information, that such
information is confidential and shall instruct them:
(a) to keep it confidential; and
(b) not to disclose it to any third party (other than
those persons to whom it has already been disclosed in accordance with the terms
of this Agreement).
The disclosing party is responsible for any breach of this
clause 14 by the person to whom the Confidential Information is disclosed.
Return of
Confidential
Information
14.4 If this Agreement terminates, each party
undertakes to the other that it shall (and shall use all reasonable endeavours
to procure that its Subsidiaries and its officers, employees, agents,
professional and other advisers and those of its Subsidiaries shall)
promptly:
(a) return to the other party or the JVC all original
documents containing Confidential Information belonging to, or relating to, such
other party or the JVC which it has or they have; and
(b) destroy any copies of such documents and any other
document or other written record reproducing, containing or made from or with
reference to the Confidential Information and shall, upon request, provide a
certificate of an authorised officer attesting to such destruction.
(save, in each case, for any submission to or filings with
governmental, tax or regulatory authorities).
14.5 Each Party shall ensure that all computer files
comprising reports, summaries or other material or information relating to or
derived from any documents or copy documents mentioned in clause 14.4 (a) or
14.4 (b) in the possession of such Party shall (in so far as they can, with
reasonable effort, be identified and deleted) be deleted from any computer, word
processor or other device containing the same.
14.6 Notwithstanding clauses 14.4 and 14.5, the written
documents referred to in clause 14.4 which are created and/or owned by such
Party or any of its professional advisers and relating to the Business
(including any working papers, attendance notes, ▇▇▇▇-ups of drafts and similar
materials so owned and/or created) and (b) a diskette copy of the computer files
referred to above in clause 14.5 (which can, with reasonable effort, be
identified and deleted) may be securely stored by such Party but shall be used,
or disclosed thereafter to any third party, only for the purpose of actual or
potential litigation arising out of or in connection with this Agreement.
Survival
after
termination
14.7 The provisions of this clause 14 continue to
apply if this Agreement is terminated.
Regulatory
matters
Co-
operation
15.1 The parties shall co-operate with each other to
ensure that all information necessary or desirable for making (or responding to
any requests for further information following) any notification or filing made
in respect of this Agreement, or the transactions contemplated by it, is
supplied to the party dealing with such notification and filing and that they
are properly, accurately and promptly made.
Regulatory
Action
15.2 If any material Regulatory Action is taken or
threatened, the parties shall promptly meet to discuss:
(a) the situation and the action to be taken as a result;
and
(b) whether any modification to the terms of this
Agreement (or any agreement entered into pursuant to this Agreement) should be
made in order that any requirement (whether as a condition of giving any
approval, exemption, clearance or consent or otherwise) of the European
Commission or any other regulatory authority may be reconciled with, and within
the intended scope of, the business arrangement contemplated by this Agreement.
The parties shall co-operate to give effect to any agreed
modifications.
Relationship with Financial Times group and MarketWatch
group
Contracts
16.1 Each party shall ensure that any contracts (other
than the IP Transaction Documents) between the JVC and members of that party's
Group are made on an arm's length commercial basis and on terms that are not
unfairly prejudicial to the interests of either party or the JVC.
Claims by
JVC
16.2 If the JVC has or may have any claim against a
party arising out of any agreement entered into by the JVC and any member of
that party's Group, that party will ensure that its nominated Directors shall
not do anything to prevent or hinder the JVC asserting or enforcing the claim
against the first mentioned party and that they shall, if necessary, enable all
decisions regarding such claims to be taken by the directors nominated by the
party wishing to assert or enforce the claim. This is without prejudice to any
right of the latter party itself to dispute the claim.
Tax
matters
Consortium
relief
17.1 Each Party shall use all reasonable endeavours so
that all of the JVC's trading losses and other amounts eligible for relief from
corporation tax under Chapter IV of Part X of the Income and Corporation Taxes
Act 1988 (ICTA) (consortium relief) are surrendered
or made available to the Shareholders and/or other members of the relevant
party's Group in proportion to their shareholdings in the JVC. For this
purpose:
(a) the JVC and each party shall give all consents and
take such other action (including, in the case of the JVC, submission of
computations) as may reasonably be required to ensure that surrenders are
promptly and effectively made within any relevant time limits;
(b) each party shall ensure, in respect of each surrender
that the relevant claimant company makes a payment in relation to the amount
surrendered (as referred to in s402(6) ICTA) within one (1) month of the date on
which corporation tax becomes (or but for the utilisation of relevant relief
would have become) payable by the claimant company for its corresponding
accounting period (as provided by s403A(8) ICTA);
(c) the amount of any payment referred to in paragraph (b)
shall be equal to the net present value of loss of benefit from time to time by
the JVC, discounted at the rate of 1 per cent. over the Base Rate of
Barclays Bank PLC from time to time;
(d) any such payment made pursuant to paragraph (b) shall
be subject to return if and to extent that it is determined that relevant losses
or other amounts surrendered are not available for surrender for reasons other
than insufficiency of profits of the claimant or other members of the relevant
party's Group.
Assurances
Exercise of
rights and powers of
control
18.1 So far as it is legally able, each party agrees
with the other to exercise all voting rights and powers (direct or indirect)
available to it in relation to any person and/or the JVC to ensure that the
provisions of this Agreement (and the other agreements referred to in this
Agreement) are completely and punctually fulfilled, observed and performed and
generally that full effect is given to the principles set out in this
Agreement.
Performance
by
Subsidiaries
18.2 Each party shall ensure that its Subsidiaries
perform:
(a) all obligations under this Agreement which are
expressed to relate to members of its respective Group (whether as Shareholders
or otherwise) and
(b) all obligations under any agreement entered into by
any of its Subsidiaries pursuant to this Agreement.
The liability of a party under this clause 18.2 shall not be
discharged or impaired by any amendment to or variation of this Agreement any
release of or granting of time or other indulgence to any of its Subsidiaries or
any third party or any other act, event or omission which but for this clause
would operate to impair or discharge the liability of such party under this
clause 18.2.
Non-
assignment
19. No party nor any Shareholder in its Group shall,
nor shall purport, to assign, transfer, charge or otherwise deal with all or any
of its rights and/or obligations under this Agreement nor grant, declare, create
or dispose of any right or interest in it, or sub-contract the performance of
any of its obligations under this Agreement in whole or in part (otherwise than
pursuant to a transfer of Shares to a third party in accordance with the terms
of this Agreement) or the assignment by a party of its interest herein to its
wholly-owned direct or indirect subsidiary in accordance with clause 12.11
of this Agreement.
Waiver of
rights
20. No waiver by a party of a failure by the other
party to perform any provision of this Agreement operates or is to be construed
as a waiver in respect of any other failure whether of a like or different
character.
Amendments
21. A variation of this Agreement (or of any of the
documents referred to in it) is valid only if it is in writing and signed by or
on behalf of each party.
Invalidity
22. If any provision of this Agreement is or is held
to be invalid or unenforceable, then so far as it is invalid or unenforceable it
has no effect and is deemed not to be included in this Agreement. This shall
not invalidate any of the remaining provisions of this Agreement. The parties
shall then use all reasonable endeavours to replace the invalid or unenforceable
provision by a valid provision the effect of which is as close as possible to
the intended effect of the invalid or unenforceable provision.
No partnership or
agency
23.1 Nothing in this Agreement (or any of the
arrangements contemplated by it) is or shall be deemed to constitute a
partnership between the parties nor, except as may be expressly set out in it,
constitute either party the agent of the other for any purpose.
23.2 Unless the parties agree otherwise in writing,
neither of them shall:
(a) enter into any contracts or commitments with third
parties as agent for the JVC or for the other party; or
(b) describe itself as such an agent or in any way hold
itself out as being such an agent.
Announcements
24.1 No formal public announcement or press release in
connection with the signature or subject matter of this Agreement shall (subject
to clause 24.2) be made or issued by or on behalf of either party or any of its
Subsidiaries without the prior written approval of the other party (such
approval not to be unreasonably withheld or delayed).
24.2 If a party has an obligation to make or issue any
announcement required by law or by any stock exchange or by any governmental
authority, the relevant party shall give the other party reasonable opportunity
to comment on any announcement or release before it is made or issued (provided
that this shall not have the effect of preventing the party making the
announcement or release from complying with its legal and/or stock exchange
obligations).
Costs
25. Each of the parties shall, subject to clause 11.5,
pay its own costs, charges and expenses (including taxation) incurred in
connection with negotiating, preparing and implementing this Agreement and the
transactions contemplated by it. The approved costs, fees and other expenses
incurred by either party on behalf of the JVC in accordance with the provisions
herein in connection with the formation of the JVC prior to Completion shall be
borne equally by the parties.
Entire
agreement
26.1 This Agreement, the IP Transaction Documents and
set out the entire agreement and understanding between the parties with respect
to the subject matter of it and supersedes any prior understanding or agreement
in relation to such subject matter.
26.2 Neither party has relied or has been induced to enter
into this Agreement in reliance on any representation, warranty or undertaking
which is not set out in this Agreement.
26.3 A party may claim in contract for breach of warranty
under this Agreement but no party shall be liable to the other for any
misrepresentation or untrue statement which is not set out in this
Agreement.
Conflict with
articles
Supremacy
of this
Agreement
27.1 If the provisions of this Agreement conflict with
the Memorandum and Articles or the JVC's other constitutional documents the
provisions of this Agreement shall prevail as between the parties. The parties
shall:
(a) exercise all voting and other rights and powers
available to them to give effect to the provisions of this Agreement; and
(b) (if necessary) ensure that any required amendment is
made to the Memorandum and Articles or other constitutional document of the
JVC.
Transfers
of
Shares
27.2 Without prejudice to the generality of clause
27.1, the provisions of this Agreement shall prevail in relation to the transfer
of Shares and, accordingly:
(a) neither party shall use the provisions of any Article
of the Articles of the JVC to frustrate the operation of clauses 11 or 12 of
this Agreement;
(b) each party shall promptly give (or ensure that any
Shareholder in its Group promptly gives) any approval under the Articles of the
JVC which is necessary or appropriate to give full and immediate effect to the
procedure contemplated by the provisions of clauses 11 or 12 and/or any transfer
of Shares permitted under this Agreement; and
(c) each party, irrevocably and by way of security for the
performance of its obligations under this Agreement to transfer Shares, appoints
the other party its attorney to execute, sign and do all such deeds, documents,
acts and things as are reasonably required for the purpose of or in connection
with effecting and perfecting any such transfer of Shares.
Termination of
agreement
Duration
28.1 This Agreement shall continue in full force and
effect until the earlier of (i) the date that is fifteen years after the date
hereof, or (ii) such time as a Financial Times Group Member and a MarketWatch
Group Member do not both hold Shares in the JVC. If as a result of any issue,
sale or disposal made in accordance with this Agreement the Shares are not so
held, then this Agreement shall terminate and cease to be of any effect. This
shall not:
(a) relieve any party from any liability or obligation for
any matter, undertaking or condition which has not been done, observed or
performed by that party before termination;
(b) affect the terms of any agreement replacing this
Agreement entered into by Financial Times and MarketWatch, or any successor of
either of them holding Shares;
(c) affect the terms of clause 14 of this Agreement
(Confidentiality) and clause 24 (Announcements).
Notices
Notices
29.1 Any notice or other formal communication to be
given under this Agreement shall be in writing and signed by or on behalf of the
party giving it. It shall be:
(a) sent by fax to the number set out in clause 29.2 with
confirmation of receipt; or
(b) delivered by hand or sent by prepaid recorded
delivery, special delivery or registered post to the relevant address in clause
29.2.
In each case it shall be marked for the attention of the
relevant party set out in clause 29.2 (or as otherwise notified from time to
time under this Agreement). Any notice given by hand delivery, fax or post shall
be deemed to have been duly given:
(a) if hand delivered, when delivered;
(b) if sent by fax, twelve (12) hours after the time of
despatch;
(c) if sent by recorded delivery, special delivery or
registered post, at 10 am on the second Business Day from the date of
posting
unless there is evidence that it was received earlier than
this and provided that, where (in the case of delivery by hand or by fax) the
delivery or transmission occurs after 6 pm on a Business Day or on a day which
is not a Business Day, service shall be deemed to occur at 9 am on the next
following Business Day. References to time in this clause are to local time in
the country of the addressee.
Address of
notices
29.2 The addresses and fax numbers of the parties for
the purpose of clause 29.1 are:
(a) Financial Times:
Address: Number ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: Company Secretary
(b) MarketWatch:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇.
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
For the attention of: Chief Executive Officer
With a copy to:
Fenwick & West LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
English
language
29.3 All notices or formal communications under or in
connection with this Agreement shall be in the English language or, if in any
other language, accompanied by a translation into English. In the event of any
conflict between the English text and the text in any other language, the
English text shall prevail.
Settlement of
disputes
30.1 If any dispute between Financial Times and
MarketWatch arises in connection with this Agreement or any associated agreement
entered into pursuant to this Agreement, they shall use all reasonable
endeavours to resolve the matter amicably. If one party gives the other notice
that a material dispute has arisen and the parties are unable to resolve the
dispute within thirty (30) days of service of the notice, then the dispute shall
be referred to the respective Chairmen of Financial Times and MarketWatch.
Neither party shall resort to litigation or arbitration against the other under
this Agreement until thirty (30) days after the referral. This shall not affect
a party's right, where appropriate, to seek an immediate remedy for an
injunction, specific performance or similar court order to enforce the
obligations of the other party.
Arbitration
30.2 If any dispute arising out of or in connection
with this Agreement is unresolved by the Chairmen of Financial Times and
MarketWatch pursuant to clause 30.1, it shall be referred to and finally settled
by arbitration under the Rules of the London Court of International Arbitration
by one or more arbitrators appointed in accordance with those Rules. The place
of arbitration shall be London. The language of arbitration proceedings shall
be English.
Counterparts
31. This Agreement may be executed in any number of
counterparts and by the parties to it on separate counterparts, each of which
shall be an original but all of which together shall constitute one and the same
instrument.
Governing
law
32. This Agreement shall be governed by and construed
in accordance with the laws of England.
As witness this Agreement has been signed by the duly
authorised representatives of the parties the day and year first before
written.
SIGNED by _____ _____ _____ )
for and on behalf of )
FINANCIAL TIMES )
GROUP LIMITED )
SIGNED by _____ _____ _____ )
for and on behalf of )
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC. )
LIMITED )
EXHIBIT A
FT Trade ▇▇▇▇ Licence
TRADE ▇▇▇▇ LICENCE AGREEMENT (this Licence Agreement)
made on _____ _____ 2000
Between
(1) FINANCIAL TIMES LIMITED, a company
incorporated under the laws of England and Wales, whose registered office is at
Number ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the Licensor)
(2) FINANCIAL TIMES ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE)
LIMITED, a company incorporated under the laws of England and Wales whose
registered office is at [ _____ _____ _____ ] (the
Licensee).
Whereas
(A) The Licensor is the owner of "FT" and
"FINANCIAL TIMES" trade marks, short details of the existing
registrations and applications for which in the Territory are set out in the
Schedule hereto.
(B) The Licensor has entered into a Joint Venture
Agreement with ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (MarketWatch) (the JV
Agreement). Pursuant to the JV Agreement the Licensor and MarketWatch
have agreed to form a joint venture and acquire shares in the Licensee for the
purpose of jointly developing the Business and the Licensee is accordingly to be
given certain rights to use "FT" and "FINANCIAL TIMES" word
marks, inter alia, as part of the Corporate Name of the Licensee and in
connection with the Business to be conducted by the Licensee, subject to the
terms and conditions of this Licence Agreement.
It is agreed as follows
Definitions
1.1 In this Licence Agreement, unless separately
defined below or the context otherwise requires, all expressions shall have the
meanings given to them in the JV Agreement:
Accounting Period means each of the three month
periods ending on 31 March, 30 June, 30 September and 31 December for each year
of the Term and the part of any such period from the Effective Date to the end
of such period and from the commencement of any such period until [1700 GMT] on
the final day of the Term or, as the case may be, the date of termination of
this Licence Agreement;
Co-Branded Site means a website containing
content that derives from and is substantially similar to the content of the
Website that is operated under an agreement between the Licensee and a third
party to promote and derive revenue for the Business among other things.
Corporate Name means the company, business or
trading name of the Licensee;
Domain Name means any domain name used as part
of the uniform resource locator (URL) of Websites or Co-Branded Sites on the
Internet registered in the name of the Licensee at the domain name registries in
the Territory;
Effective Date means the date of this Licence
Agreement first set forth above;
▇▇.▇▇▇ means the website owned and operated by
the Licensor and located on the Internet under the domain name
"▇▇.▇▇▇";
Internet means the global network of interconnecting computer
systems including without limitation the worldwide web;
Licensed Marks means the marks "FT" and
"FINANCIAL TIMES" and registrations and applications for registration
for these marks in any jurisdiction;
Net Revenues means the total amount of all
revenues received in the ordinary course of the Licensee's conduct of the
Business less Value Added Tax or any analogous tax in any other
jurisdiction, and less usual trade discounts, allowances for returns, and any
product packing, insurance and transport costs, but in all events
excluding:
(a) any revenue derived from the Licensor or MarketWatch;
and
(b) revenue attributable to enterprises that are acquired
by Licensee, with such revenue for each relevant year deemed fixed as of the
date of such enterprises' acquisition, by computing the enterprise's revenue for
the 12 month period ended immediately prior to the date of its
acquisition;
Promotional Material means any promotional and
advertising materials in any media created by (or on behalf of) the Licensee for
the purpose of promoting the Business in the Territory;
Royalty Rate means five percent (5%) for the
first five (5) years, and three percent (3%) for the next five years and two
percent (2%) for the last five years thereafter until the fifteenth anniversary
of the Effective Date.
Term means the period from the Effective Date
until the first to occur of the following events:
(a) termination of this Licence Agreement pursuant to
Clause 8.2 below; or
(b) expiration or earlier termination of the JV Agreement
pursuant to Clause 28.1 of the JV Agreement; or
(c) on Financial Times ceasing to provide Core Services
pursuant to Clause 11.6 of the JV Agreement; or
(d) on liquidation of the JVC pursuant to Clauses 10.5 or
11.10 of the JV Agreement.
Website means a website established by (or on
behalf of) the Licensee for the purposes of the Business.
1.2 In this Licence Agreement, unless the context
otherwise requires:
(a) references to persons shall include individuals,
bodies corporate (whenever incorporated), unincorporated associations and
partnerships;
(b) the headings are inserted for convenience only and
shall not affect the construction of the Agreement;
(c) references to one gender shall include each gender and
all genders;
(d) any reference to an enactment is a reference to it as
from time to time amended, consolidated or re-enacted (with or without
modification) and includes all instruments or orders made under such
enactments.
Grant of Licence
2.1 In consideration of the payment of the royalties
pursuant to clause 6 of this Licence Agreement by the Licensee to the Licensor
the Licensor hereby grants to the Licensee a non-exclusive, worldwide, royalty-
based licence during the Term and for a period of ninety (90) days thereafter,
throughout the Territory to use the Licensed Marks:
(a) in any page of the Website and any Co-Branded Site
(including in any hypertext links within the Website which link to ▇▇.▇▇▇);
(b) as part of the Domain Name and to register such Domain
Name at the domain name registries in the Territory;
(c) on and in the Promotional Material;
(d) as part of the Corporate Name; and
(e) in connection with the Business,
subject to the terms and conditions of this Licence
Agreement. The Licensee may grant sublicenses of the foregoing rights but only
as to combination brands listed in Clause 3(f) below (and not as stand alone
Licensed Trade Marks) and only for use in connection with Co-Branded Sites
(including in links to Co-Branded Sites from other websites), and on and in
Promotional Material therefor; provided that, any such sublicensee must execute
a sublicense agreement that contains provisions that are, as to the Licensed
Trade Marks and as to Licensor, at least as protective as the provisions of this
Licence Agreement. Any such sublicence agreements shall provide for expiry co-
terminous with the expiry or earlier termination of this Licence Agreement.
Acknowledgement
2.2 The Licensee acknowledges and accepts that, as at
the date of this Licence Agreement, the Licensor has not obtained trade ▇▇▇▇
registrations for Licensed Trade Marks in all countries of the world and
accordingly in countries where the licensor has not obtained such registrations
the Licensor can and does licence under Clause 2.1 only such unregistered trade
▇▇▇▇ right, title and interest as it may own in and to the Licensed Trade Marks.
The Licensor makes no express warranty or representation (and none shall be
implied) as to the extent of rights in the Licensed Marks, if any.
Conditions Of Use
3. The Licensee hereby undertakes that:
(a) it will use the Licensed Marks only as licensed herein
and not otherwise;
(b) consistent with prudent business judgement and Clause
3.1(a) of the JV Agreement, the Licensed Marks shall form part of the branding
of the Business will be used prominently in the Website;
(c) the Website and the Promotional Material will conform
to such standards of quality as the Licensor may from time to time reasonably
require, which shall be no lower than that generally achieved by the Licensor in
providing ▇▇.▇▇▇ and related goods and services in the course of its business as
at the date of this Licence Agreement;
(d) it will not use the Licensed Marks in a manner which
is reasonably likely to be prejudicial to the use of the Licensed Marks by the
Licensor or its successors, assignees or licensees;
(e) the Licensed Marks shall be used in a layout, form,
size, printing style, colour and type face to be approved by the Licensor in
advance of use (such approval not to be unreasonably withheld or delayed);
(f) it will not use the Licensed Marks together or in
combination with any other marks, names, logos, symbols or devices without the
prior written consent of the Licensor, other than in the forms:
(i) as part of a hypertext link to Licensor's website
only, "Financial Times" or "▇▇.▇▇▇";
(ii) "Financial Times MarketWatch"; and
(iii) as part of, or in reference to (including but
not limited to use in keywords or metatags), the Domain Names only, "FT
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" "FT MarketWatch", "▇▇▇▇▇▇.▇▇▇" and
"FTMKTW".
Provided, however, that the marks in paragraphs 3(f) (ii) and
(iii) (but not the Licensed Marks alone) may be used in other combinations with
third party trade marks in describing a Co-Branded Site.
(g) it will not use any device ▇▇▇▇, logo, or symbol which
is substantially similar to or so nearly resembles the Licensed Marks as to be
likely to cause deception or confusion;
(h) it will include on the home page of the Website, a
statement that "THE FINANCIAL TIMES and the "FT" are trade
marks of The Financial Times Limited and are used under licence" (or as
may be advised in writing to the Licensee, an equivalent statement in relation
to the Licensor's successors in title or assignees as the case may be);
(i) it will not use the Licensed Marks in a manner which
is reasonably likely to cause material harm to the goodwill attaching to the
Licensed Marks;
(j) it will meet, no more than quarterly, if so required
by the Licensor, to discuss the maintenance of the above standards of quality
and presentation.
Samples and Access
4. If it is found that any item of the Promotional
Material or any page of the Website or a Co-Branded Site bearing or intended to
bear the Licensed Marks (the Materials) is not in conformity to
any material extent with any of the Licensee's obligations under this Licence
Agreement, the Licensor shall give the Licensee written notice of that fact
setting out the reasons for the lack of conformity in reasonable detail. The
Licensee undertakes that it will not print, publish, distribute, issue to the
public, sell or offer for sale any non-conforming Materials under the Licensed
Marks without the prior written consent of the Licensor.
Acknowledgement/Registration of the Marks
5.1 The Licensee acknowledges and agrees
that:
(a) all rights in and to the Licensed Marks belong to the
Licensor (subject only to the limited rights granted herein);
(b) it shall not in any territory acquire or claim any
interest in or title to the Licensed Marks or the goodwill attaching thereto by
virtue of the rights granted to it under this Licence Agreement or through its
use of the Licensed Marks under this Licence Agreement; and
(c) all goodwill arising through use of the Licensed Marks
by the Licensee in any territory shall at all times be deemed to have accrued to
the Licensor.
5.2 Further, the Licensee undertakes that:
(a) it shall not, in any jurisdiction, apply to register,
register or seek to register any trade marks, domain names, (other than Domain
Names, the Corporate Name and name combinations set forth in paragraphs 3(f)
(ii) and (iii) above, as licensed herein), copyright or analogous right which is
identical with or substantially similar to or includes any of the Licensed
Marks;
(b) it shall use its best endeavours not to do anything
which is reasonably likely to prejudice the Licensor's rights in and to the
Licensed Marks;
(c) at the Licensor's request and reasonable expense, it
shall execute or procure the execution of any document which may be necessary to
allow the recordal of the rights granted to the Licensee under this License
Agreement and the corresponding cancellation of such recordal on the termination
or expiry of this Licence Agreement, for whatever reason;
(d) at the Licensor's request and reasonable expense, it
shall provide the Licensor with such reasonable assistance as the Licensor
considers necessary for the purpose of pursuing any application or obtaining or
maintaining any registration of the Licensed Marks.
Payment of Royalties
6.1 The Licensee agrees to pay the Licensor payments,
calculated by multiplying the Net Revenues by the Royalty Rate, payable
quarterly in arrears. Moneys payable pursuant to this clause shall accompany
the statement furnished by the Licensee pursuant to Clause 6.2(a).
6.2 The Licensee shall deliver to the Licensor:
(a) within thirty (30) days following each Accounting
Period, a statement showing Net Revenues for the most recent Accounting Period
and the calculation of the royalty based on the Royalty Rate; and
(b) any other information reasonably required in order to
understand the royalty payments and Net Revenues as shall be requested by the
Licensor from time to time.
6.3 All moneys to be paid hereunder shall be made together
with any value added tax (or other similar tax) chargeable thereon.
6.4 All moneys due hereunder shall be paid in full without
deductions, except only for such tax as the Licensee is obliged to deduct under
any applicable law. The Licensee shall give the Licensor all reasonable
assistance without charge to the Licensor to recover (under the provisions of
double tax conventions or other lawful manner) any tax so withheld and to obtain
any necessary authorisations and the like to enable the Licensee lawfully to pay
without deduction of tax or to enable the Licensor to recover such tax or to
obtain a tax credit in respect of any amount of tax so withheld.
6.5 In the event of any payment required to be made by the
Licensee under this Licence Agreement not being received by the Licensor on or
before the due date of payment, interest shall become payable thereon both
before and after judgment at the rate of 3 per cent above the base rate of
Barclays Bank plc (or, if such rate is not available, the nearest equivalent
rate of another clearing bank in the City of London nominated by the Licensor
and reasonably acceptable to Licensee) for the time being in force from the due
date for payment to the date when payment is actually received. In the event of
any other rate being substituted for the base rate then such substituted rate
shall apply for the purpose of this Clause 6.
6.6 If any dispute shall arise between the parties hereto
as to any royalty payment to be made hereunder, such dispute shall be determined
by an accountant appointed in default of agreement between the parties by the
President for the time being of the Institute of Chartered Accountants in
England and Wales who shall act as an expert and not as an arbitrator and the
fees and expenses of the accountant shall be borne equally by the parties unless
the accountant directs otherwise.
6.7 All payments to be made by the Licensee to the
Licensor shall be made in a mutually agreed manner.
6.8 Licensor shall have the right, at its own expense, to
use certified accounting representatives reasonably acceptable to Licensee to
make examinations and audits, by prior arrangement, during normal business
hours, of Licensee's accounts that contain information supporting or reflecting
Licensee's calculation of the statement provided under Clause 6.2(a) of this
Licence Agreement. Any information so revealed shall be maintained in strict
confidence by both the certified accounting representative and Licensee, shall
not be disclosed by either of them to any third party, and shall be used solely
to verify Licensee's calculation of the statement provided under Clause
6.2(a).
Infringements
7.1 The provisions of Section 30(2) of the Trade Marks
Act 1994 (as amended, re-enacted or replaced from time to time) or similar or
analogous legislation in any country in the world, if any, are expressly
excluded by the parties for the purposes of this Licence Agreement.
7.2 (a) Subject as provided in clause 7.2(b)
below, the Licensor shall have the exclusive right in its sole and absolute
discretion, and at its own expense, to assume the conduct of all actions and
proceedings relating to the Licensed Marks in any country in the world and the
Licensee agrees to provide to the Licensor at the Licensor's reasonable expense
all assistance which the Licensor may reasonably require in connection
therewith. Any costs or damages recovered as a result of any such actions or
proceedings shall be for the account of the Licensor unless any such
infringements have clearly caused financial loss to the Licensee in which case
the parties agree to negotiate in good faith an appropriate allocation of any
damages so recovered.
7.2 (b) If the Licensor decides not itself to bring any
action for infringement of the Licensed Marks in any jurisdiction, the Licensor
shall at the request of the Licensee lend its name to infringement proceedings
taken by the Licensee in that jurisdiction, subject to receiving an indemnity
from the Licensee in respect of the costs or liabilities so incurred by the
Licensor and provided always that the Licensor shall have the right to approve
all matters relating to the conduct of any proceedings taken in its name such
approval not to be unreasonably withheld or delayed. Any costs or damages
recovered as a result of proceedings taken by the Licensee shall be for the
account of the Licensee unless any such infringements have clearly caused
financial loss to the Licensor in which case the parties agree to negotiate in
good faith an appropriate allocation of any damages so recovered.
7.3 The Licensee shall stop using the Licensed Marks
anywhere in the world as soon as reasonably practicable after receipt of written
notice from the Licensor (or the Licensor's trade ▇▇▇▇ agents or legal advisers
from time to time) which reasonably demonstrates that such use infringes the
intellectual property rights of any third party.
Term And Termination
8.1 This Agreement shall commence on the Effective
Date and shall, subject only to the other provisions of this Clause 8, expire
automatically without need for further notice on the expiration of the Term.
8.2 The Licensor may terminate this Licence Agreement by
giving written notice to the Licensee and MarketWatch effective
forthwith:
(a) if the Licensee challenges, by formal action taken
with any governmental agency, the validity of the Licensed Marks or the
Licensor's right to use or license the Licensed Marks; or
(b) if the Licensee commits a material breach of any term
or condition of this Licence Agreement and such breach continues unremedied for
more than 45 days after the Licensor has served a notice in writing on the
Licensee giving details of the breach requiring its remedy by the Licensee or
the Licensee, commits a material breach of any term or condition of this Licence
Agreement which is not capable of remedy, or commits persistent breaches of any
term or condition of this Licence Agreement (whether or not material and whether
or not capable of remedy); or
(c) if (save for the purposes of a voluntary
reorganisation, reconstruction or amalgamation) an order is made or a resolution
is passed for the winding-up of the Licensee or if a provisional liquidator is
appointed in respect of the Licensee, or if an administration order is made in
respect of the Licensee, or if a receiver (which expression shall include an
administrative receiver) is appointed in respect of the Licensee or all or any
of its assets and is not discharged within a period of 30 days, or if the
Licensee is unable to pay its debts within the meaning of Section 123 of
the Insolvency ▇▇▇ ▇▇▇▇ or any analogous or equivalent legislation in any
country of the world, or if any voluntary arrangement is proposed in respect of
the Licensee under Section 1 of the Insolvency ▇▇▇ ▇▇▇▇ or any analogous or
equivalent legislation in any country of the world; or
(d) upon a change of Control of MarketWatch.
Effects Of Termination
9.1 Within ninety (90) days of expiry or termination
of this License Agreement for any reason:
(a) the rights and licence granted hereunder to the
Licensee shall cease and the Licensee shall immediately discontinue any and all
use of the Licensed Marks; and
(b) the Licensor may request that the Licensee delete or
remove the Licensed Marks from or (where such deletion or removal is not
reasonably practicable) destroy and provide to the Licensor satisfactory
evidence of destruction, deletion or removal or if the Licensor shall so elect
deliver to the Licensor, at the Licensor's cost, for destruction all materials
in the possession or control of the Licensee to which the Licensed Marks is
affixed; and
the Licensee shall otherwise cease all use of the Licensed
Marks, including without limitation all use of the trade ▇▇▇▇ "Financial
Times MarketWatch".
9.2 Within ninety (90) days of expiry or termination of
this Licence Agreement for any reason the Licensee shall provide to the Licensor
satisfactory evidence that it has changed its Corporate Name so as not to
include any of the Licensed Marks.
9.3 Within ninety (90) days of expiry or termination of
this License Agreement for any reason the Licensee shall provide to the Licensor
satisfactory evidence that it has either changed the Domain Name so as not to
include any of the Licensed Marks or cancelled the Domain Name.
9.4 Termination of this Licence Agreement shall be without
prejudice to the rights of either party which may have accrued up to the date of
such termination.
General
Successors in Title/Assignment/Sub-Licensing
10.1 The rights and obligations of the Licensee under
this Licence Agreement are personal to the Licensee and, subject as expressly
provided in Clause 2.1 above, the Licensee may not (and may not purport to)
assign, transfer, charge, sublicense, or otherwise part with all or any of its
rights and/or obligations under this Licence Agreement (except that the Licensor
hereby expressly consents to the novation of this Licence Agreement in favour of
the JVC).
Notices
10.2.1 Any notice or other communication to be given
by one party to the other under, or in connection with the matters contemplated
by, this License Agreement shall be in writing and signed by or on behalf of the
party giving it and may be served by leaving it or sending it by fax, pre-paid
recorded delivery or registered post to the address and for the attention of the
relevant party set out in Clause 10.2.2 (or as otherwise notified from time
to time hereunder). Any notice so served by hand, fax or post shall be deemed
to have been received:
(a) in the case of delivery by hand, when delivered;
(b) in the case of fax, twelve (12) hours after the time
of despatch;
(c) in the case of prepaid internationally recognized
courier, 48 hours from the date of posting.
10.2.2 The addresses of the parties for the purposes of
Clause 10.2.1 are as follows
(a) Address for notices to the Licensor:
·
Number One
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: Company Secretary
(b) Address for notices to the Licensee:
·
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: CEO
Entire Agreement
10.3 This Agreement represents the entire agreement
and understanding between the Licensor and the Licensee in relation to the use
of the Licensed Marks by the Licensee and shall supersede all arrangements or
agreements relating to the Licensed Marks previously entered into or made
between the parties and all such arrangements or agreements are hereby
terminated.
Precedence of Agreements
10.4 In the event of any inconsistency between the
provisions of this License Agreement and the JV Agreement, the provisions of the
JV Agreement shall prevail.
Legal relationship
10.5 Nothing in this Licence Agreement shall be
construed to constitute either party the partner, joint venturer, agent or
employee of the other party and, except as expressly provided in this Licence
Agreement, neither party by virtue of this Licence Agreement has authority to
transact any business in the name of the other party or on its behalf or incur
any liability for or on behalf of the other party.
Variation
10.6 Any right, power, privilege or remedy of a party
under or pursuant to this Licence Agreement shall not be capable of being varied
or waived, otherwise than by an express waiver or variation in writing.
Waiver
10.7 No failure or delay by any party in exercising
any right, power, privilege or remedy under this Licence Agreement shall impair
such right, power, privilege or remedy, or operate or be construed as a waiver
or variation thereof or preclude its exercise at any subsequent time or on any
subsequent occasion and no single or partial exercise of any such right, power,
privilege or remedy shall preclude any other or further exercise thereof or the
exercise of any other right, power, privilege or remedy.
Counterparts
10.8 This Agreement may be executed in counterparts,
each of which shall be considered an original, with the same effect as if the
parties or their representatives signed the same instrument.
Severance
10.9 If any provision of this Licence Agreement is
held to be invalid or unenforceable, then such provision shall (so far as
invalid or unenforceable) be given no effect and shall be deemed not to be
included in this Licence Agreement but without invalidating any of the remaining
provisions of this Licence Agreement. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provisions by a valid and
enforceable substitute provision the effect of which is as close as possible to
the intended effect of the invalid or unenforceable provision.
Further Assurance
10.10 Each party agrees to execute such documents and
waivers and generally do everything further that may be necessary to fulfil its
obligations under this Licence Agreement.
Law and jurisdiction
10.11 This Agreement shall be governed by and
construed in accordance with English law and the parties irrevocably agree that
the English Courts shall have exclusive jurisdiction to settle any disputes
which may arise out of or in connection with this Licence Agreement.
In Witness Whereof the parties have executed this Licence
Agreement on the date hereinbefore mentioned:
SIGNED by )
)
duly authorised for and on behalf of )
FINANCIAL TIMES LIMITED )
in the presence of:
SIGNED by )
)
duly authorised for and on behalf of )
FINANCIAL TIMES )
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) LIMITED )
in the presence of:
EXHIBIT B
MarketWatch Trade ▇▇▇▇ Licence
TRADEMARK LICENSE DEED (the Deed) made on
_____ _____ 2000
Between
(1) [Appropriate MarketWatch Group Member], a
company incorporated under the laws of [ ] whose business offices are located
at [ ] (the Licensor); and,
(2) FINANCIAL TIMES ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE)
LIMITED, a company incorporated under the laws of England and Wales, whose
registered office is at Number ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
Licensee)
Whereas
(A) The Licensor [is a fully-owned subsidiary of
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (MarketWatch) and] is the owner of the
"MARKETWATCH", "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" and "MKTW"
trademarks and existing registrations and applications for such trademarks as
set forth in Schedule A attached hereto.
(B) MarketWatch has entered into a Joint Venture Agreement
with the Financial Times Limited (Financial Times) (the JV
Agreement). As provided in the JV Agreement, MarketWatch and Financial
Times have agreed to form a joint venture and acquire shares in the Licensee for
the purpose of jointly developing the Business. Accordingly, the Licensee is to
be given certain rights to use the ▇▇▇▇ "MARKETWATCH" and certain
other trademarks as part of the Corporate Name of the Licensee and in connection
with the Business to be conducted by the Licensee, subject to the terms and
conditions of this Deed.
It is agreed as follows
Definitions
1.1 In this Deed, unless separately defined below or
the context otherwise requires, all expressions will have the meanings given to
them in the JV Agreement:
Co-Branded Site means a website containing
content that derives from and is substantially similar to the content of the
Website that is operated under an agreement between the Licensee and a third
party to promote and derive revenue for the Business among other things.
Corporate Name means the company, business or
trading name of the Licensee;
Domain Name means any domain name used as part
of the uniform resource locator (URL) of Websites or Co-Branded Sites on the
Internet registered in the name of the Licensee at the domain name registries
worldwide;
Effective Date means the date of this Deed
first set forth above;
Internet means the global network of interconnecting computer
systems, including without limitation the worldwide web;
Licensed Marks means the marks and names
"MARKETWATCH", "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇", "MKTW" and
"▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" and registrations and applications for
registration for these marks and names in any jurisdiction;
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ means the website owned and operated by
MarketWatch and located on the Internet under the domain name
"▇▇▇▇▇▇▇▇▇▇▇.▇▇▇";
Promotional Material means any promotional and
advertising materials in any media created by (or on behalf of) the Licensee for
the purpose of promoting the Business in the world;
Term means the period from the Effective Date
until the first to occur of the following events:
(a) termination of this Deed pursuant to Section 7.2
below; or
(b) expiration or earlier termination of the JV Agreement
pursuant to Clause 28.1 of the JV Agreement; or
(c) on MarketWatch ceasing to provide Core Services
pursuant to Clause 11.6 of the JV Agreement; or
(d) on liquidation of the JVC pursuant to Clauses 10.5 or
11.10 of the JV Agreement.
Website means a website established by (or on
behalf of) the Licensee for the purposes of the Business.
1.2 In this Deed, unless the context otherwise
requires:
(a) references to persons will include individuals, bodies
corporate (whenever incorporated), unincorporated associations and
partnerships;
(b) the headings are inserted for convenience only and
will not affect the construction of the Deed;
(c) references to one gender will include each gender and
all genders;
(d) any reference to any law is a reference to that law as
it may be amended, consolidated or re-enacted (with or without modification)
from time to time and includes all instruments or orders made under such
laws.
Grant of License
2.1 In consideration of the payment of the sum of
L1.00 by the Licensee to the Licensor, (receipt of which is acknowledged) the
Licensor hereby grants to the Licensee a non-exclusive, worldwide, royalty-free
license during the Term and for a period of ninety (90) days thereafter, to use
the Licensed Marks:
(a) in any page of the Website and any Co-Branded Site
(including in any hypertext links within the Website which link to
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇);
(b) as part of Domain Names and to register such Domain
Names at the domain name registries worldwide;
(c) on and in the Promotional Material;
(d) as part of the Corporate Name; and
(e) in connection with the Business,
subject to the terms and conditions of this Deed. The
Licensee may grant sublicenses of the foregoing rights but only as to
combination brands listed in Section 3(f) below (and not as stand alone Licensed
Marks) and only for use in connection with Co-Branded Sites (including in links
to Co-Branded Sites), and on and in Promotional Material therefor; provided
that, any such sublicensee must execute a sublicense agreement that contains
provisions that are, as to the Licensed Marks and as to Licensor, at least as
protective as the provisions of this Deed. Any such sublicense agreements will
provide for expiration coterminous with the expiration or earlier termination of
this Deed.
Acknowledgement
2.2 The Licensee acknowledges and accepts that, as at
the date of this Deed, the Licensor has not obtained trademark registrations for
the Licensed Marks in all countries worldwide. Accordingly, in countries where
such registrations have not been obtained by Licensor or MarketWatch, the
Licensor can and does license under Section 2.1 only such unregistered trademark
right, title and interest as it may own or have the right to sublicense in and
to the Licensed Marks. The Licensor makes no express warranty or representation
(and none will be implied) as to the extent of rights in the Licensed Marks, if
any.
Conditions Of Use
3. The Licensee hereby agrees that:
(a) it will use the Licensed Marks only as licensed herein
and not otherwise;
(b) consistent with prudent business judgement and Section
3.1(a) of the JV Agreement, the Licensed Marks will form part of the branding
for the Business and will be used prominently in the Website;
(c) the Website and the Promotional Material will conform
to standards of quality as the Licensor may from time to time reasonably
require, which will be no lower than that generally achieved by the Licensor in
providing ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ services and related goods and services in the course
of its business as at the date of this Deed;
(d) it will not use the Licensed Marks in a manner that is
reasonably likely to be prejudicial to the use of the Licensed Marks by the
Licensor or its successors, assignees or licensees;
(e) the Licensed Marks will be used in and with the
Website in a layout, form, size, printing style, color and type face to be
approved by the Licensor in advance of use (such approval not to be unreasonably
withheld or delayed);
(f) it will not use the Licensed Marks together or in
combination with any other marks, names, logos, symbols or devices without the
prior written consent of the Licensor, other than in the forms:
(i) as part of a hypertext link to the Licensor's Website
only, "MarketWatch" and "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇";
(ii) "Financial Times Market Watch";
(iii) as part of, or in reference to (including but not
limited to use in keywords or metatags), Domain Names only, "FT
MarketWatch", "FT ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇", "FTMKTW" and
"▇▇▇▇▇▇.▇▇▇";
provided, however, that the marks in paragraphs 3(f)(ii) and
(iii) above (but not the Licensed Marks alone) may be used in other combinations
with third party trademarks, in describing a Co-Branded Site.
(g) it will not use any device ▇▇▇▇, logo, or symbol that
is substantially similar to or so nearly resembles the Licensed Marks as to be
likely to cause deception or confusion;
(h) it will include on the home page of the Website, a
statement that "MARKETWATCH, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and MKTW" are
Trademarks of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and are used under license" (or as
may be advised in writing to the Licensee, an equivalent statement in relation
to the Licensor's successors in title or assignees as the case may be);
(i) it will not use the Licensed Marks in a manner that is
reasonably likely to cause material harm to the goodwill attaching to the
Licensed Marks;
(j) it will meet, no more than quarterly, if so required
by the Licensor, to discuss the maintenance of the above standards of quality
and presentation.
Samples and Access
4. If it is found that any of the Promotional Material
or any page of the JV Website or a Co-Branded Site bearing or intended to bear
the Licensed Marks (the Materials) does not conform to any
material extent with any of the Licensee's obligations under this Deed, the
Licensor will give the Licensee written notice of that fact setting out the
reasons for the lack of conformity in reasonable detail. The Licensee agrees
not to print, publish, distribute, issue to the public, sell or offer for sale
any non-conforming Materials under the Licensed Marks without the prior written
consent of the Licensor.
Acknowledgement/Registration of the Marks
5.1 The Licensee acknowledges and agrees
that:
(a) all rights in and to the Licensed Marks belong to the
Licensor (subject only to the limited rights granted herein);
(b) it will not acquire or claim any interest in or title
to the Licensed Marks or the goodwill attaching thereto by virtue of the rights
granted to it under this Deed or through its use of the Licensed Marks under
this Deed; and
(c) all goodwill arising through use of the Licensed Marks
by the Licensee in any territory will at all times be deemed to have accrued to
the Licensor.
5.2 Further, the Licensee undertakes that:
(a) it will not, in any jurisdiction, apply to register,
register or seek to register any trademarks, domain names, (other than Domain
Names, the Corporate Name and name combinations set forth in paragraphs 3(f)
(ii) and (iii) above, as licensed under this Deed), copyright or analogous right
which is identical with or substantially similar to or includes any of the
Licensed Marks;
(b) it will use its best efforts not to do anything that
is reasonably likely to prejudice the Licensor's rights in and to the Licensed
Marks;
(c) at the Licensor's request and reasonable expense, it
will execute or procure the execution of any document which may be necessary to
allow the recordation of the rights granted to the Licensee under this Deed and
the corresponding cancellation of such recordation upon the termination or
expiration of this Deed , for whatever reason;
(d) at the Licensor's request and reasonable expense, it
will provide the Licensor and/or MarketWatch with such reasonable assistance as
the Licensor and/or MarketWatch considers necessary for the purpose of pursuing
any application or obtaining or maintaining any registration of the Licensed
Marks.
Infringement
6.1 The provisions of Section 30(2) of the Trade Marks
Act 1994 (as amended, re-enacted or replaced from time to time) or similar or
analogous legislation in any country in the world, if any, are expressly
excluded by the parties for the purposes of this Deed.
6.2 (a) Except as provided in Section 6.2(b)
below, the Licensor will have the exclusive right in its sole and absolute
discretion, and at its own expense, to assume the conduct of all actions and
proceedings relating to the Licensed Marks in any country in the world. The
Licensee agrees to provide to the Licensor, at the Licensor's reasonable
expense, all assistance that the Licensor may reasonably require in connection
therewith. Any costs or damages recovered as a result of any such actions or
proceedings will be for the account of the Licensor, unless any such
infringement has clearly caused financial loss to the Licensee. In such case,
the parties agree to negotiate in good faith an appropriate allocation of any
damages so recovered.
6.2 (b) If the Licensor decides not to bring any action
for infringement of the Licensed Marks in any jurisdiction, the Licensor will at
the request of the Licensee cooperate to enable infringement proceedings by the
Licensee in that jurisdiction. However, such cooperation may be conditioned
upon the Licensor receiving an indemnity from the Licensee in respect of costs
or liabilities incurred by the Licensor and the Licensor having the right to
approve all matters relating to the conduct of any proceedings taken in its name
such approval not to be unreasonably withheld or delayed. Any costs or damages
recovered as a result of proceedings taken by the Licensee will be for the
account of the Licensee unless the infringement has clearly caused financial
loss to the Licensor. In such case, the parties agree to negotiate in good
faith an appropriate allocation of any damages so recovered.
6.3 The Licensee will stop using the Licensed Marks
anywhere in the world as soon as reasonably practicable after receipt of written
notice from the Licensor (or the Licensor's trademark agents or legal advisers
from time to time) which reasonably demonstrates that such use infringes the
intellectual property rights of any third party.
Term And Termination
7.1 This Deed will commence on the Effective Date and
will, subject only to the other provisions of this Section 7, expire
automatically without need for further notice on the expiration of the Term.
7.2 The Licensor may terminate this Deed by giving written
notice to the Licensee and Financial Times effective forthwith:
(a) if the Licensee challenges, by formal action taken
with any governmental agency, the validity of the Licensed Marks or the
Licensor's right to use or license the Licensed Marks; or
(b) if the Licensee commits a material breach of any term
or condition of this Deed and such breach continues unremedied for more than
45 days after the Licensor has served a notice in writing on the Licensee
giving details of the breach requiring its remedy by the Licensee or the
Licensee commits a material breach of any term or condition of this Deed that is
not capable of remedy or the Licensee commits persistent breaches of any term or
condition of this Deed (whether or not material and whether or not capable of
remedy); or
(c) if, except for purposes of a voluntary reorganization,
reconstruction or amalgamation, an order is made or a resolution is passed for
the winding-up of the Licensee or if a provisional liquidator is appointed in
respect of the Licensee, or if an administration order is made in respect of the
Licensee, or if an administrative receiver or other receiver is appointed in
respect of the Licensee or all or any of its assets and is not discharged within
a period of 30 days, or if the Licensee is unable to pay its debts within
the meaning of Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or any analogous or
equivalent legislation in any country of the world, or if any voluntary
arrangement is proposed in respect of the Licensee under Section 1 of the
Insolvency ▇▇▇ ▇▇▇▇ or any analogous or equivalent legislation in any country of
the world; or
(d) upon a change of Control of Financial Times.
Effects Of Termination
8.1 Within ninety (90) days of expiration or
termination of this Deed for any reason:
(a) the rights and License granted hereunder to the
Licensee will cease and the Licensee will immediately discontinue any and all
use of the Licensed Marks; and
(b) the Licensor may request that the Licensee delete or
remove the Licensed Marks from or (where such deletion or removal is not
reasonably practicable) destroy and provide to the Licensor satisfactory
evidence of destruction, deletion or removal or if the Licensor will so elect
deliver to the Licensor, at the Licensor's cost, for destruction all materials
in the possession or control of the Licensee to which the Licensed Marks is
affixed; and
the Licensee will otherwise cease all use of the Licensed
Marks, including but not limited to all use of the trademark "Financial
Times MarketWatch".
8.2 Within ninety (90) days of expiration or termination
of this Deed for any reason, or thereafter as soon as practicable, the Licensee
will provide to the Licensor satisfactory evidence that it has changed its
Corporate Name so as not to include any of the Licensed Marks.
8.3 Within ninety (90) days of expiration or termination
of this Deed for any reason, or thereafter as soon as practicable, the Licensee
will provide to the Licensor satisfactory evidence that it has either changed
the Domain Name so as not to include any of the Licensed Marks or cancelled the
Domain Name.
8.4 Termination of this Deed will be without prejudice to
the rights of either party which may have accrued up to the date of such
termination.
General
Successors in Title/Assignment/Sub-Licensing
9.1 The rights and obligations of the Licensee under
this Deed are personal to the Licensee and, except as expressly provided in
Section 2.1 above, the Licensee may not (and may not purport to) assign,
transfer, charge, sublicense, or otherwise part with all or any of its rights
and/or obligations under this Deed (except that the Licensor hereby expressly
consents to the novation of this Deed in favor of the JVC).
Notices
9.2.1 Any notice or other communication to be given by
one party to the other under, or in connection with the matters contemplated by,
this Deed will be in writing and signed by or on behalf of the party giving it
and may be served by leaving it or sending it by fax, prepaid recorded delivery
or registered post to the address and for the attention of the relevant party
set out in Section 9.2.2 (or as otherwise notified from time to time
hereunder). Any notice so served by hand, fax, post or internationally-
recognized courier will be deemed to have been received:
(a) in the case of delivery by hand, when delivered;
(b) in the case of fax, twelve (12) hours after the time
of transmittal;
(c) in the case of prepaid internationally recognized
courier, 48 hours from the date of transmittal.
9.2.2 The addresses of the parties for the purposes of
Section 9.2.1 are as follows:
(a) Address for notices to the Licensor:
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▇.▇.▇.
Attention: CEO
(b) Address for notices to the Licensee:
·
Number One
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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Attention: Company Secretary
Entire Agreement
9.3 This Deed represents the entire agreement and
understanding between the Licensor and the Licensee in relation to the use of
the Licensed Marks by the Licensee and supersedes all arrangements or agreements
relating to the Licensed Marks previously entered into or made between the
parties and all such arrangements or agreements are hereby terminated.
Precedence of Agreements
9.4 In the event of any inconsistency between the
provisions of this Deed and the JV Agreement, the provisions of the JV Agreement
will prevail.
Legal relationship
9.5 Nothing in this Deed will be construed to
constitute either party the partner, joint venturer, agent or employee of the
other party and, except as expressly provided in this Deed. Neither party by
virtue of this Deed has authority to transact any business in the name of the
other party or on its behalf or incur any liability for or on behalf of the
other party.
Variation
9.6 Any right, power, privilege or remedy of a party
under or pursuant to this Deed will not be capable of being varied or waived,
other than by an express waiver or agreement signed by both parties.
Waiver
9.7 No failure or delay by any party in exercising any
right, power, privilege or remedy under this Deed will impair such right, power,
privilege or remedy, or operate or be construed as a waiver or variation thereof
or preclude its exercise at any subsequent time or on any subsequent occasion
and no single or partial exercise of any such right, power, privilege or remedy
will preclude any other or further exercise thereof or the exercise of any other
right, power, privilege or remedy.
Counterparts
9.8 This Deed may be executed in counterparts, each of
which will be considered an original, with the same effect as if the parties or
their representatives signed the same instrument.
Severance
9.9 If any provision of this Deed is held to be
invalid or unenforceable, then such provision will (so far as invalid or
unenforceable) be given no effect and will be deemed not to be included in this
Deed but without invalidating any of the remaining provisions of this Deed. The
parties will then use all reasonable efforts to replace the invalid or
unenforceable provisions by a valid and enforceable substitute provision the
effect of which is as close as possible to the intended effect of the invalid or
unenforceable provision.
Further Assurance
9.10 Each party agrees to execute such documents and
waivers and generally do everything further that may be necessary to fulfil its
obligations under this Deed.
Law and jurisdiction
9.11 This Deed will be governed by and construed in
accordance with English law and the parties irrevocably agree that the English
Courts will have exclusive jurisdiction to settle any disputes which may arise
out of or in connection with this Deed.
Duly delivered as a deed on the date inserted on page 1
SIGNED AS A DEED and )
DELIVERED on behalf of )
[Appropriate MarketWatch Group Member])
a company incorporated in [ ] by )
_________________________ )
being a person, who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
EXECUTED and DELIVERED )
as a DEED under the Common Seal of )
FINANCIAL TIMES )
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) )
LIMITED )
in the presence of:
Director:
Secretary
EXHIBIT C
MarketWatch Technology Licence
TECHNOLOGY LICENSE AGREEMENT (this Technology
Agreement) is entered into effective as of _____ _____ 2000
Between
(1) [Appropriate MarketWatch Group Member] a
company incorporated under the laws of [ ] whose business officers are
located at [ ] (Licensor); and,
(2) FINANCIAL TIMES ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE)
LIMITED, a company incorporated under the laws of England and Wales, whose
registered office is at Number ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(Licensee)
Whereas
(A) Licensor [is a fully-owned subsidiary of
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (MarketWatch) and] controls, has rights to
or is the owner of the MarketWatch Technology; and,
(B) MarketWatch has entered into a Joint Venture Agreement
with the Financial Times Limited (Financial Times) (the JV
Agreement). As provided in the JV Agreement, MarketWatch and Financial
Times have agreed to form a joint venture and acquire shares in Licensee for the
purpose of jointly developing the Business. Accordingly, Licensee is to be
given certain rights to use the MarketWatch Technology in connection with the
Business to be conducted by Licensee, subject to the terms and conditions of
this Technology Agreement.
It is agreed as follows
Definitions
1.1 In this Technology Agreement, unless separately
defined below or the context otherwise requires, all expressions will have the
meanings given to them in the JV Agreement:
Accounting Period means each of the three (3)
month periods ending on 31 March, 30 June, 30 September and 31 December for
each year (or part thereof) during the Term and the part of any such period from
the Effective Date to the end of such period and from the commencement of any
such period until 17.00 GMT on the final day of the Term or, as the case may be,
the date of termination of this Technology Agreement;
Effective Date means the date of this
Technology Agreement first set forth above;
MarketWatch Technology means the website
infrastructure, content authoring tools and techniques, network operations
techniques, website architecture and databases used by MarketWatch, including
any modifications, improvements and enhancements to, and derivative works based
upon such technology provided by MarketWatch by means of the Services.
MarketWatch Technology does not include any source code.
Services has the meaning given to it by Section
6.1.
Services Costs means all costs incurred by the
Licensor referable to providing the Services to the Licensee (including labor,
employee benefits and administration, as well as other incremental costs
attributable to the Services provided, but not including any costs that would
otherwise be incurred by the Licensor in the normal course of its business)
which will not exceed, in any one year, the maximum annual fee for that year
approved by a unanimous vote of the Board of Directors of the Licensee.
Term means the period from the Effective Date
until the first to occur of the following events:
(a) termination of this Technology Agreement according to
Section 8.2 below; or
(b) expiration or earlier termination of the JV Agreement
according to Clause 28.1 of the JV Agreement; or
(c) MarketWatch ceasing to provide Core Services pursuant
to Clause 11.6 of the JV Agreement; or
(d) on liquidation of the JVC pursuant to Clauses 10.5 or
11.10 of the JV Agreement.
1.2 In this Technology Agreement, unless the context
otherwise requires:
(a) references to persons will include individuals, bodies
corporate (whenever incorporated), unincorporated associations and
partnerships;
(b) the headings are inserted for convenience only and
will not affect the construction of the Agreement;
(c) references to one gender will include each gender and
all genders;
(d) any reference to any law is a reference to it may be
amended, consolidated or re-enacted (with or without modification) from time to
time and includes all instruments or orders made under such
enactments.
Grant of License
2.1 In consideration of the payment of the Services
Costs by Licensee pursuant to Section 6 of this Technology Agreement, and
subject to the terms and conditions of this Technology Agreement, Licensor
hereby grants to Licensee a non-exclusive, worldwide, non-transferable, royalty-
free license for the Term to import, use, modify, perform, create derivative
works, and reproduce the MarketWatch Technology, and to sub-license a Subsidiary
or sub-contractor to perform any of the above functions, solely to the extent
necessary for Licensee, its employees and contractors to operate the Business.
Reservation of Rights
2.2 All rights not expressly granted in Section 2.1
above are reserved to Licensor.
Confidentiality
3.1 Licensee agrees that the MarketWatch Technology is
the confidential information of Licensor. Licensee shall: (i) hold the
MarketWatch Technology in strict confidence, (ii) not disclose the MarketWatch
Technology to any third party (including, without limitation, Financial Times)
(iii) not use the MarketWatch Technology for any purpose except solely to the
extent necessary for Licensee, its employees and contractors to operate the
Business, and (iv) take all reasonable measures to maintain the confidentiality
of the MarketWatch Technology, which will in no event be less than the measures
it uses to maintain the confidentiality of its own information of similar
importance. Notwithstanding Section 3.1(ii) above, Licensee may disclose the
MarketWatch Technology to its employees, subsidiaries, contractors and
professional advisors with a bona fide need to know, but only to the extent
necessary to operate the Business, and provided further that such disclosure is
subject to a written non-disclosure agreement which includes terms at least as
restrictive as those of this Section 3.1.
3.2 The obligations of Section 3.1 shall not apply to any
part of the MarketWatch Technology that: (i) is now, or hereafter becomes,
through no act or failure to act on the part of the Licensee, generally known or
available to the public; (ii) was rightfully acquired by the Licensee before its
receipt from Licensor and without restriction as to use or disclosure; (iii) is
hereafter rightfully furnished to Licensee by a third party, without restriction
as to use or disclosure; (iv) which the Licensee can document was independently
developed by Licensee; or (v) is required to be disclosed pursuant to law,
provided the Licensee uses reasonable efforts to give the Licensor reasonable
notice of such required disclosure sufficient for the Licensor to seek and
obtain confidential treatment of the MarketWatch Technology so disclosed.
Proprietary Rights
4.1 The MarketWatch Technology is and will remain the
sole and exclusive property of Licensor and its suppliers, if any, whether the
MarketWatch Technology is separate or combined with any other technology,
subject only to the licenses expressly granted herein. Subject to the License
granted in Section 2.1, Licensor's rights and ownership under this Section 4.1
will include and cover, but not be limited to: (i) all copies of the
MarketWatch Technology, in whole and in part; (ii) all Intellectual Property
Rights in the MarketWatch Technology; and (iii) all modifications, improvements
and enhancements to, and derivative works based upon, the MarketWatch
Technology. Licensee agrees to assign, as requested by Licensee from time to
time, and Licensee does hereby assign any and all right, title and interest in
and to any and all such modifications, improvements, enhancements and derivative
works, whether created by Licensee or for Licensee by third parties.
4.2 Rights Notices. Licensee will not delete or in
any manner alter the Intellectual Property Rights notices of Licensor and its
suppliers, if any, appearing on the MarketWatch Technology as delivered to
Licensee. Licensee will reproduce and display such notices on each copy it
makes of the MarketWatch Technology.
4.3 Licensee's Duties. Licensee will use its
reasonable efforts to protect Licensor's Intellectual Property Rights in and to
the MarketWatch Technology and will report promptly to Licensor any infringement
of such rights of which Licensee becomes aware. Licensee will cooperate with
Licensor in obtaining registrations of Intellectual Property Rights in and to
the MarketWatch Technology and otherwise protecting Licensor's proprietary
interests in the MarketWatch Technology.
Disclaimer of Warranty
5. THE MARKETWATCH TECHNOLOGY IS PROVIDED "AS
IS" AND, TO THE EXTENT PERMITTED BY LAW, WITHOUT ANY WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
Services and Service Fees
6.1 Licensor will provide the right to use existing
technology development, implementation, technical management, and hosting
services (the Services), as agreed by Licensor and JV from year to
year during the Term.
6.2 Licensee will pay the Services Costs to the Licensor
quarterly with the each payment due thirty (30) days after receipt of the
statement described in Section 6.2(a) below. Within thirty (30) days following
each Accounting Period, Licensor will deliver to Licensee:
(a) a statement showing Services Costs for the prior
Accounting Period; and
(b) any other information reasonably required in order to
understand the calculation for Services Costs and corresponding fees payable, as
may be requested by Licensee from time to time.
6.3 All Services Costs to be paid under this Technology
Agreement will be made together with any value added tax (or other similar tax)
chargeable thereon.
6.4 All Services Costs due hereunder will be paid in full
without deductions, except only for such tax as Licensee is obligated to deduct
under any applicable law. Licensee will give Licensor all reasonable assistance
without charge to Licensor to recover (under the provisions of double tax
conventions or other lawful manner) any tax so withheld and to obtain any
necessary authorizations and the like to enable Licensee lawfully to pay without
deduction of tax or to enable Licensor to recover such tax or to obtain a tax
credit in respect of any amount of tax so withheld.
6.5 In the event that any Services Costs are not received
by Licensor on or before the due date of payment, interest will be payable on
the past due amount both before and after judgment at the rate of three percent
(3%) above the base rate of Barclays Bank plc (or, if such rate is not
available, the nearest equivalent rate of another clearing bank in the City of
London nominated by Licensor and reasonably acceptable to Licensee) for the time
being in force from the due date for payment to the date when payment is
actually received. In the event of any other rate being substituted for the
base rate, such substituted rate will apply for the purpose of this Section
6.
6.6 If any dispute arises between the parties hereto as to
any payment to be made hereunder, such dispute will be determined by an
accountant mutually agreed upon by the parties or, if they cannot agree, an
accountant appointed by the then current President of the Institute of Chartered
Accountants in England and Wales. In any case, the accountant so selected will
act as an expert and not as an arbitrator. The fees and expenses of the
accountant will be borne equally by the parties unless the accountant directs
otherwise.
6.7 All payments to be made by Licensee to Licensor will
be made in a mutually agreed manner.
6.8 Licensee shall have the right, at its own expense, to
use certified accounting representatives reasonably acceptable to Licensor to
make examinations and audits, by prior arrangement, during normal business
hours, and not more frequently than semi-annually, of Licensor's accounts that
contain information supporting or reflecting Licensor's calculation of the
Services Costs. Any information so revealed shall be maintained in strict
confidence by both the certified accounting representative and Licensee, shall
not be disclosed by either of them to any third party, and shall be used solely
to verify Licensor's calculation of the Services Costs.
Infringement
7.1 (a) Except as provided in Section 7.1(b)
below, Licensor will have the exclusive right in its sole and absolute
discretion, and at its own expense, to assume the conduct of all actions and
proceedings relating to the MarketWatch Technology in any country in the world.
Licensee agrees to provide to Licensor, at Licensor's reasonable expense, all
assistance that Licensor may reasonably require in connection therewith. Any
costs or damages recovered as a result of any such actions or proceedings will
be for the account of Licensor, unless any such infringement has clearly caused
financial loss to Licensee. In such case, the parties agree to negotiate in
good faith an appropriate allocation of any damages so recovered.
7.1 (b) If Licensor decides not to bring any action for
infringement of the MarketWatch Technology in any jurisdiction, Licensor will at
the request of Licensee cooperate to enable infringement proceedings in that
jurisdiction by Licensee. However, such cooperation may be conditioned upon
Licensor receiving an indemnity from Licensee in respect of costs or liabilities
incurred by Licensor and Licensor having the right to approve all matters
relating to the conduct of any proceedings taken in its name such approval not
to be unreasonably withheld or delayed. Any costs or damages recovered as a
result of proceedings taken by Licensee will be for the account of Licensee
unless the infringement has clearly caused financial loss to Licensor. In such
case, the parties agree to discuss in good faith an appropriate allocation of
any damages so recovered.
7.2 Licensee will stop using the MarketWatch Technology in
a jurisdiction as soon as reasonably practicable after receipt of written notice
from Licensor (or Licensor's legal advisers from time to time) which reasonably
demonstrates that such use infringes the intellectual property rights of any
third party in that jurisdiction.
Term And Termination
8.1 This Agreement will commence on the Effective Date
and will, subject only to the other provisions of this Section 8, expire
automatically without need for further notice on the expiration of the Term.
8.2 Licensor may terminate this Technology Agreement by
giving written notice to Licensee and Financial Times forthwith:
(a) if Licensee challenges, by formal action taken with
any governmental agency, Licensor's right to use or license the MarketWatch
Technology; or
(b) if Licensee commits a material breach of any term or
condition of this Technology Agreement and such breach continues unremedied for
more than 45 days after Licensor has served a notice in writing on Licensee
giving details of the breach requiring its remedy by Licensee or Licensee
commits a material breach of any term or condition of this Technology Agreement
that is not capable of remedy or Licensee commits persistent breaches of any
term or condition of this Technology Agreement (whether or not material and
whether or not capable of remedy); or
(c) if, except for purposes of a voluntary reorganisation,
reconstruction or amalgamation, an order is made or a resolution is passed for
the winding-up of Licensee or if a provisional liquidator is appointed in
respect of Licensee, or if an administration order is made in respect of
Licensee, or if an administrative receiver or other receiver is appointed in
respect of Licensee or all or any of its assets and is not discharged within a
period of 30 days, or if Licensee is unable to pay its debts within the
meaning of Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or any analogous or
equivalent legislation in any country of the world, or if any voluntary
arrangement is proposed in respect of Licensee under Section 1 of the
Insolvency ▇▇▇ ▇▇▇▇ or any analogous or equivalent legislation in any country of
the world.
Effects Of Termination
9.1 The License to use and to sub-license the use of
The MarketWatch Technology granted by Section 2.1 above will survive termination
of this Technology Agreement for any reason other than termination by the
Licensor pursuant to Section 8.2 above, in which case the Licensee shall cease
all use of the MarketWatch Technology within 90 days of termination.
9.2 Termination of this Technology Agreement will be
without prejudice to the rights of either party, which may have accrued up to
the date of such termination.
General
Successors in Title/Assignment/Sub-Licensing
10.1 The rights and obligations of Licensee under this
Technology Agreement are personal to Licensee and Licensee may not (and may not
purport to) assign, transfer, charge, sublicense, or otherwise part with all or
any of its rights and/or obligations under this Technology Agreement (except
that Licensor hereby expressly consents to the novation of this Technology
Agreement in favor of the Licensee).
Notices
10.2.1 Any notice or other communication to be given
by one party to the other under, or in connection with the matters contemplated
by, this Technology Agreement will be in writing and signed by or on behalf of
the party giving it and may be served by leaving it or sending it by fax,
prepaid recorded delivery or registered post to the address and for the
attention of the relevant party set out in Section 10.2.2 (or as otherwise
notified from time to time hereunder). Any notice so served by hand, fax, post
or internationally-recognized courier will be deemed to have been
received:
(a) in the case of delivery by hand, when delivered;
(b) in the case of fax, twelve (12) hours after the time
of transmittal;
(c) in the case of post, 48 hours after posting;
(d) in the case of prepaid internationally recognized
courier, 48 hours from the date of transmittal.
10.2.2 The addresses of the parties for the purposes of
Section 10.2.1 are as follows
(a) Address for notices to Licensor:
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Attention: CEO
(b) Address for notices to Licensee:
·
Number One
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Attention: Company Secretary
Entire Agreement
10.3 This Agreement represents the entire agreement
and understanding between Licensor and Licensee in relation to the license and
use of the MarketWatch Technology by Licensee and supersedes all arrangements or
agreements relating to the MarketWatch Technology previously entered into or
made between the parties and all such arrangements or agreements are hereby
terminated.
Precedence of Agreements
10.4 In the event of any inconsistency between the
provisions of this Technology Agreement and the JV Agreement, the provisions of
the JV Agreement will prevail.
Legal relationship
10.5 Nothing in this Technology Agreement will be
construed to constitute either party the partner, joint venturer, agent or
employee of the other party and, except as expressly provided in this Technology
Agreement. Neither party by virtue of this Technology Agreement has authority to
transact any business in the name of the other party or on its behalf or incur
any liability for or on behalf of the other party.
Variation
10.6 Any right, power, privilege or remedy of a party
under or according to this Technology Agreement will not be capable of being
varied or waived, other than by an express waiver or agreement signed by both
parties.
Waiver
10.7 No failure or delay by any party in exercising
any right, power, privilege or remedy under this Technology Agreement will
impair such right, power, privilege or remedy, or operate or be construed as a
waiver or variation thereof or preclude its exercise at any subsequent time or
on any subsequent occasion and no single or partial exercise of any such right,
power, privilege or remedy will preclude any other or further exercise thereof
or the exercise of any other right, power, privilege or remedy.
Counterparts
10.8 This Agreement may be executed in counterparts,
each of which will be considered an original, with the same effect as if the
parties or their representatives signed the same instrument.
Severance
10.9 If any provision of this Technology Agreement is
held to be invalid or unenforceable, then such provision will (so far as invalid
or unenforceable) be given no effect and will be deemed not to be included in
this Technology Agreement but without invalidating any of the remaining
provisions of this Technology Agreement. The parties will then use all
reasonable efforts to replace the invalid or unenforceable provisions by a valid
and enforceable substitute provision the effect of which is as close as possible
to the intended effect of the invalid or unenforceable provision.
Limitation of Liability
10.10 EXCEPT FOR LICENSEE'S BREACH OF ITS OBLIGATIONS
UNDER SECTIONS 3 OR 6.8 OF THIS TECHNOLOGY AGREEMENT, IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT
FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND OR
NATURE, AT LAW OR EQUITY, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS
AGREEMENT FOR ANY DAMAGES OF ANY KIND OR NATURE IN EXCESS OF FEES PAID TO
LICENSOR HEREUNDER.
Further Assurance
10.11 Each party agrees to execute such documents and
waivers and generally do everything further that may be necessary to fulfil its
obligations under this Technology Agreement.
Law and jurisdiction
10.12 This Agreement will be governed by and
construed in accordance with English law and the parties irrevocably agree that
the English Courts will have exclusive jurisdiction to settle any disputes,
which may arise out of or in connection with this Technology Agreement.
In Witness Whereof the parties have executed this
Technology Agreement on the date hereinbefore mentioned:
SIGNED by )
)
duly authorised for and on behalf of )
[Appropriate MarketWatch Group Member] )
in the presence of:
SIGNED by )
)
duly authorised for and on behalf of )
FINANCIAL TIMES )
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) )
LIMITED )
in the presence of:
6 January 2000
FINANCIAL TIMES GROUP LIMITED
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
JOINT VENTURE AGREEMENT
relating to the establishment of
FINANCIAL TIMES ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) LIMITED
as a jointly-owned company
Contents
Clause Page
Interpretation
*
Definitions *
Currency *
Construction and Interpretation
*
Agreed form *
Status *
Purpose of the JVC
*
Business *
Commercial principles
*
Hyperlinks *
Source attribution *
Incorporation of the JVC
*
No activity prior to Completion
*
Conditions *
Conditions *
Endeavours to fulfil Conditions
*
Non-fulfilment of Conditions
*
Conduct before Completion
*
Agreement on Funding Schedule and Business Plans
*
Termination *
Completion *
Further Services *
Rescission *
Change of name *
Capital and further finance
*
Issues of new shares
*
Funding support by the parties
*
Further finance *
Guarantees *
Directors and management
*
Supervision by the Board
*
Board of Directors, Chief Executive and Editor in
Chief *
Appointment and removal of Directors
*
Quorum *
Notice and Agenda *
Frequency of Meetings
*
Board voting *
Reserved matters *
Use of powers *
Reserved Matters *
Deadlock *
Shareholder deadlock
*
Deadlock Notice *
Default (including Insolvency)
*
Event of Default *
Put Option Notices and Call Option Notices
*
Reference to Expert *
Core Services *
Completion *
Transfer terms *
Transfer of shares
*
General *
Restriction on transfer
*
Permitted Transfers *
Initial period *
Transfer Notice *
Right of Continuing Party to purchase
*
Obligation to complete
*
Seller's right to sell to Third Party Purchaser
*
Sale terms *
Agency Authority for Transfers
*
Intra-Group transfers
*
Shareholder ceasing to be a Subsidiary
*
Bring-along *
Financial matters, Information and reporting
*
Accounting Principles
*
Auditors *
Financial Year *
Dividend policy *
Inspection and information *
Accounts, Business Plan and Budgets
*
Confidentiality *
Confidentiality obligation
*
Exceptions from confidentiality obligation
*
Employees, agents and advisers
*
Return of Confidential Information
*
Survival after termination
*
Regulatory matters
*
Co-operation *
Regulatory Action *
Relationship with Financial Times group and MarketWatch
group *
Contracts *
Claims by JVC *
Tax matters *
Consortium relief *
Assurances *
Exercise of rights and powers of control
*
Performance by Subsidiaries
*
Non-assignment *
Waiver of rights *
Amendments *
Invalidity *
No partnership or agency
*
Announcements *
Costs *
Entire agreement *
Conflict with articles
*
Supremacy of this Agreement
*
Transfers of Shares *
Termination of agreement
*
Duration *
Notices *
Notices *
Address of notices *
English language *
Settlement of disputes
*
Arbitration *
Counterparts *
Governing law
*
EXHIBIT A *
FT Trade ▇▇▇▇ Licence
*
EXHIBIT B *
MarketWatch Trade ▇▇▇▇ Licence
*
EXHIBIT C *
MarketWatch Technology Licence
*
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