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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
Exhibit 10.23
AMENDMENT
This Amendment dated as of October 31, 1995 (the "Effective Date") to
that certain Optional Service Delivery Agreement (the "OSD Agreement") dated as
of July 1993 between Reuters Limited, a U.K. registered corporation with offices
at 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx ("Reuters"), and XxXxxxxx,
Xxxxxxxx & Xxxxxx, Inc., a New York corporation with offices at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Source"), and that Direct Feed
Delivery Agreement (the "DFD Agreement") dated as of July 1, 1993 between
Reuters and Source.
W I T N E S S E T H:
WHEREAS, pursuant to the OSD Agreement, Source may distribute its
Source Services via the Reuters Subscribers (capitalized terms used without
definition herein having the definitions ascribe to such terms in the OSD
Agreement or the DFD Agreement, as appropriate);
WHEREAS, pursuant to the DFD Agreement, Source may distribute its
Source Services to select Source Subscribers via a direct feed line provided by
Reuters;
WHEREAS, the parties desire to make certain changes to both the OSD
Agreement and the DFD Agreement, to amend the fees payable under the OSD
Agreement, the terms of both agreements, and certain other provisions as set
forth herein; and
WHEREAS, the parties had previously agreed to the terms and conditions
set forth herein, but due to circumstances beyond either party's control, this
Amendment has heretofore remained unexecuted.
NOW THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO OSD AGREEMENT.
(a) Section 5 of the OSD Agreement is hereby amended in its entirety as
follows:
"5. Fees/Payment
(a) Reuters Fee. In this Section 5(a), all references to Source
Services and New Source Services exclude such services accessed via direct feed
and all references to amounts billed to Source Subscribers are exclusive of all
sales or other similar taxes. From the first day of the month next following the
date of execution of this Amendment by Reuters (said date hereinafter referred
to as the "Execution Date") to and including December 31, 1997, Reuters shall be
entitled to a fee equal to ****** ******* ***** of all
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
"post Execution Date amounts" billed to Source Subscribers for Source Services
distributed through the Reuters Service. For purposes of this Agreement, "post
Execute Date amounts" shall mean amounts billed to Source Subscribers who become
Source Subscribers on or after the Execution Date and amounts billed to Source
Subscribers who are Source Subscribers prior to the Execution Date and which are
over and above the amounts billed to those Source Subscribers prior to the
Execution Date for the Source Services distributed through the Reuters Service.
The fee due Reuters (the "Reuters Source Revenue") shall be calculated by FIRST
taking all amounts billed to Source Subscribers for Source Services distributed
through the Reuters Service for the relevant calendar month; SECOND subtracting
from said amount all amounts billed in that calendar month to Source Subscribers
who were Source Subscribers prior to the Execution Date at the billing rate in
effect as of the Execution Date and THIRD multiplying the result by *********.
Commencing January 1, 1998 and thereafter, Reuters shall be entitled to a fee
equal ********** of all amounts billed to Source Subscribers during the
relevant calendar month for the Source Services distributed through the
Reuters Services.
In addition, Reuters shall be entitled to a fee during the term of this
Agreement equal to ********** of all amounts billed to Source Subscribers in
respect of any subscription to any New Source Service.
(b) The Reuters Source Revenue and any revenues due to Reuters from any
other New Source are together known as the "Reuters Revenues."
(c) Payment.
(i) As soon as possible after the end of each calendar
month for the term of this Agreement (and any
calendar month following the termination of this
Agreement in which subscription revenues are received
by either party upon which amounts are due to the
other pursuant to this Section 5), but in any event
within forty-five (45) days thereof, each party shall
deliver to the other a report which report the
respective party represents and warrants to the best
of its knowledge will show all of the subscription
revenues billed by it in those areas for which it is
responsible for billing for such month (the
"Subscription Revenues") and the amounts due to
Source or to Reuters, thereon, as the case may be.
Reuters, together with its report, shall deliver to
Source, one check payable to Source at its New York
offices for the Subscription Revenues less the
Reuters Revenues in U.S. Dollars as hereinafter set
forth and one wire transfer to Source's designated
bank account in Japan for the Subscription Revenues
less the Reuters Revenues in Japanese yen as
hereinafter set forth. Source, together with its
report, shall deliver to Reuters one check payable to
Reuters, addressed to Reuters to the
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attention of the Specialist Data Administrator at the
address set forth above, for the Reuters Revenues in
those areas which Source is responsible for billing.
(ii) All payments shall be made in U.S. Dollars except, as
noted above, payments to be made by Reuters to Source
with respect to subscription revenues collected by
Reuters and which are received in Japanese yen shall
be made in Japanese yen. All amounts due with respect
to subscriptions outside the United States (except
those payable in Japanese yen) shall be calculated by
taking the local currency units billed and converting
to U.S. Dollars, the result of which will equal the
"book rate" for that month. The book rate is
determined from the World Value of the Pound table as
published in the Financial Times on (usually) the
first Tuesday of each month. These figures are
rounded up or down to two decimal points.
(d) Adjustments. Each party acknowledges that they may make
initial calculations and payments of amounts due to the other
based on amounts billed to Source Subscribers in respect of
Source Services, and accordingly there may be post payment
adjustments to amounts remitted to the other pursuant to this
Section 5 to reflect (i) amounts the billing party billed in
error or credits it gave in the ordinary course of business to
Source Subscribers, and (ii) amounts the billing party was
unable to collect from Source Subscribers.
(e) Records. Each party shall maintain complete and accurate books
and records (collectively, the "Records") with respect to all
amounts it billed to Source Subscribers in respect of
subscriptions to the Source Services and any adjustments
thereto made pursuant to Subsection (d) of this Section 5.
Each party shall, at its expense, have the right upon at least
thirty (30) days' prior written notice to inspect the Records
of the other during normal working hours. All information
gained by the inspecting party from such inspection will be
kept in strict confidence and will be used solely for the
purpose of verifying the accuracy of the computation of the
amounts due hereunder.
(f) Offsets. Notwithstanding any provision of this Agreement to
the contrary, neither party shall have the right to offset
from the amounts payable by it pursuant to this Section 5 any
amounts which may be due or owed to such party from the other
as a result of this Section 5, any other section of this
Agreement or of the Direct Feed Delivery Agreement (the "DFD
Agreement") dated as of July 1, 1993 between the parties, or
any claim arising out of such other party's performance or
non-performance of its duties and obligations under this
Agreement or the DFD Agreement.
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(g) Sales Commission and Fee. Reuters shall not be entitled to any
fee or commission for subscriptions to a Source Service sold
to a Reuters subscriber by a salesperson working for Reuters
unless Source, on a region-by-region basis, deems the payment
of a fee or commission appropriate. If deemed appropriate, the
amount of commission and the mechanics for payment of any such
commission shall be as determined by Source's and Reuters'
respective regional offices on a case-by-case basis.
(c) Section 9 of the OSD Agreement is hereby amended in its entirety as
follows:
"9. Representations and Warranties of the Parties. Each party hereby represents,
covenants and warrants to the other as follows:
(a) It has full power and authority (including full corporate
power and authority) to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of such
party, enforceable in accordance with its terms and
conditions.
(b) That the parties will comply with all codes, regulations and
laws applicable to the performance of its duties and
obligations set forth herein, including but not limited to the
provision of direct feed lines under this Agreement, and has
obtained or will obtain all necessary permits, licenses and
other authorization necessary for its performance of services
under this Agreement.
(d) Section 11(a) of the OSD Agreement is hereby amended in its entirety as
follows:
"(a) Term. The initial term of this Agreement shall commence ninety-one
(91) days subsequent to notice given by Source to Telerate Systems Incorporated
("Telerate") pursuant to that certain agreement dated as of January 1, 1992
between Source and Telerate (the "Telerate Agreement") (the "Commencement Date")
and shall terminate on December 31, 2000 (the "Initial Term"). The term of this
Agreement shall automatically be extended for one or more periods of three years
(the "Renewal Term"), unless either party sends to the other written notice of
its election not to renew at least ninety (90) days prior to the end of the
Initial Term, or any Renewal Term, as the case may be."
(e) Section 11(d) of the OSD Agreement is hereby deleted in its entirety.
(f) Section 12 of the OSD Agreement is hereby amended in its entirety as
follows:
"12. Distributor Parity: Source agrees to provide the Source Services
on such basis that they shall, in all material respects when supplied to
Reuters, be as complete
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and current as the Source Services distributed via other network vendors with
whom Source has a then current agreement."
(g) Section 13(a)(i) and (ii) of the OSD Agreement are hereby amended in
its entirety as follows:
"(i) If to Reuters to:
Reuters Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: General Counsel
with a copy to:
The Executive Vice President of Marketing Reuters America
00 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
(ii) If to Source to:
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
One Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: President
with a copy to:
J. Xxxxxxxxxxx Xxxxxxx
General Counsel
c/x Xxxxxxxxxx Global Investors, Inc.
000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000."
(h) Section 13(c) of the OSD Agreement is hereby amended in its entirety as
follows:
"(c) Survival of Certain Provisions. Notwithstanding the termination of
this Agreement, those provisions of this Agreement that by their nature are
intended to survive such termination shall survive, including without
limitation, the provisions of Sections 5(c), 8, 9, 10 and 11.
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(i) Exhibits C and G to the OSD Agreement is hereby amended in its entirety
by replacing same with Exhibits C and G attached to this Agreement.
SECTION 2. AMENDMENTS TO DFD AGREEMENT
(a) Section 5(a) of the DFD Agreement is hereby amended in its entirety as
follows:
"(a) Term. The initial term of this Agreement shall commence ninety-one
(91) days subsequent to notice given by Source to Telerate Systems Incorporated
("Telerate") pursuant to that certain agreement dated as of January 1, 1992,
between Source and Telerate (the "Telerate Agreement") (the "Commencement Date")
and shall terminate on December 31, 2000 (the "Initial Term"). The term of this
Agreement shall automatically be extended for one or more periods of three years
(a "Renewal Term") unless either party sends to the other written notice of
election not to renew at least ninety (90) days prior to the end of the Initial
Term, or any Renewal Term, as the case may be."
(b) Section 6 of the DFD Agreement shall be read to incorporate the
sections of the OSD Agreement referenced therein as amended by this
Agreement.
(c) Section 7 of the DFD Agreement is hereby amended in its entirety as
follows:
"7. Survival. Notwithstanding the termination of this Agreement, those
provisions of this Agreement that by their nature are intended to survive such
termination and shall survive, including without limitation the provisions of
Sections 4 and 5 of this Agreement and Sections 5(c), 9 and 10 of the Optional
Service Delivery Agreement incorporated by reference pursuant to Section 6 of
this Agreement."
SECTION 3. NO OTHER MODIFICATION, Except as as set forth in Sections 1 and 2
hereof, the OSD Agreement and the DFD Agreement shall remain in full force and
effect without amendment, modification waiver. Execution and delivery hereof by
the parties hereto shall not preclude the exercise by such parties of any rights
under the OSD Agreement or the DFD Agreement (as amended by Sections 1 and 2
hereof).
SECTION 4. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of New York, U.S.A.
IN WITNESS WHEREOF, the undersigned parties have executed this Amendment as of
the date set forth below, and, except as otherwise set forth herein, the terms
and conditions of this Amendment are deemed effective as of the Effective Date.
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XxXXXXXX, XXXXXXXX & XXXXXX, REUTERS LIMITED, an UK registered
INC., a New York corporation company
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- --------------------------------
Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Date: 9 July 1997
The "Execution Date" is July 9, 1997
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Exhibit A
Source Services
CurrencyWatch Provides fundamental
and technical
analysis of global
currency markets.
YieldWatch Provides fundamental
and technical
analysis of European
and Asia Pacific
fixed income bond and
futures markets.
MoneyWatch Provides fundamental
and technical
analysis of US
Treasury, Agency and
money markets.
CorporateWatch Provides information
on corporate
securities, private
placements, equities
and mortgage and
derivative product
new issues.
FX OptionWatch Provides fundamental
and technical
analysis of global
currency options
markets.
TradeWatch Provides trading
strategies on fixed
income, currency and
other financial
markets.
KinriWatch Provides fundamental
and technical
analysis of Japanese
government bond and
money markets in
Japanese.
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Exhibit B
The following subscribers should be restricted from access to the Source
Services pursuant to Section 1(a)(i) of the Agreement:
Munifacts/American Banker Telekurs
Money Market Services Int'x. Xxxxx, XxXxxxxx
Ried, Xxxxxxxx Indepth Data
Elliot Wave International Thomson Financial Service
Data Resources Inc. AutEx
Xxxxxxxxx & Co. CDA Investment Technologies
Xxxxx Economics XXXXX
Xxxxxxxxx FIRST CALL
Xxxxxx & Santow Investext
Xxxx & Bradstreet GovPx
Predex Data Broadcasting Corp.
Xxxxx Technical Data (All Services)
Bank Valuation PC Trader
Chronometrics I.F.R. Xxxxx
Capital Techniques Charter Media Inc.
Dow Xxxxx Markets BradyNet
Market Data Corporation Int'l. Financing Review
Market News Service ILX
Xxxxxx Data Bond World
Money Line Corporation Xxxxx'x
Standard & Poor's McGraw Hill
Dow Xxxxx News Service Sheshunoff
Duff & Xxxxxx Primark Corp.
Xxxxx Group IPO Financial
Investment Dealers Digest Commscan
(I.D.D. Information Services) AMG Data Services
Securities Data Corp. IDEA
RS Investments Dalcomp Inc.
MRL Publishing Xxxxx Xxxxxxx Capital Consultants
Capital Management Sciences SDC Publishing
X.X. Xxxxxx & Company Institutional Investor
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Bloomberg Internet Securities
Bridge Decision Economics
In addition to the above list, only Authorized Distributors should be allowed
access when exhibiting at conferences.
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Exhibit C
Reuters Equipment and Services
------------------------------
Pursuant to the terms and conditions of Section 2(a)(1) of the Agreement, the
equipment to be provided by Reuters to Source at Source's various locations set
forth below (and such other Source locations as from time to time agreed to by
Source and Reuters) shall include the following:
TOKYO QUANTITY ADDITIONAL FUNCTIONALITY
----- -------- ------------------------
RT Power Plus Data Network 2 With editing capabilities, to
be used as back-up for the
primary contribution
mechanism.
Reuters Terminal Data Network 1
RT Slave Screen 2
Marketlink Simulator Equipment Kit PC 1
Treasury 2000 Location Service 1
Treasury News 2000 Location Service 1
Treasury 2000 Data Access 3
Futures 2000 Data Access 2
Treasury News 2000 Data Access 3
Exclusive Line 2
NEW YORK QUANTITY
-------- --------
IDN Network Access Fee 1
News IDN Network Access Fee 1
Communication Charge 1
Printer Access 2
Screen Printer 1
Slave Screen 3
Treasury News 2
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Reuters Terminal Treasury 2000 2 With editing capabilities, to
be used as back-up for the
primary contribution
mechanism.
Excel Access 1
Reuters Terminal Hardware 2
1 SelectfeedPlus and associated communications solely for the purpose of Source
development.
1 primary electronic means of delivering Source's information to Reuters in a
timely and reliable manner to include but not limited to two IDN links with the
necessary equipment and leased lines with dial-up at Source primary site as well
as a disaster recovery site to be designated by Source.
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