Exhibit 10.9
*** CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
AMENDMENT NO. 1 TO THE AGREEMENT
THIS AMENDMENT NO. 1 dated as of March 9, 1998 to the Agreement for
Internal Electronic Distribution Services dated April 10, 1997 (the
"Agreement"), by and between BANCAMERICA XXXXXXXXX XXXXXXXX (formerly known as
Xxxxxxxxx, Xxxxxxxx & Company LLC), a Delaware corporation with offices at 000
Xxxxxxxxxx Xx., 00xx Xxxxx, Xxx Xxxxxxxxx XX 00000 (hereinafter referred to as
"Company"), and MULTEX SYSTEMS, INC., a Delaware corporation with offices at 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Multex").
Multex and Company shall be referred to herein sometimes as the "Parties."
Unless otherwise defined herein, the terms defined in the Agreement
shall be used herein as therein defined.
SECTION 1. Amendments to the Agreement.
Pursuant to Section 20 of the Agreement, it is hereby agreed by the Parties as
follows:
1. A. The Agreement is hereby amended by including a new section 1A
thereto that shall read as follows:
"1A. Company Research Sales.
(a) Company will deliver Research (as defined below) to Multex in soft
copy.
(b) Multex shall have the right to resell and make available Research
only to customers located in the United States.
(c) Following a period of 15 days after the release of Research by
Company to its own clients (the "Delay Period"), Multex shall have the right to
resell and make available Research only to institutional investors, consulting
firms and other entities that are not classified as "retail investors." Multex
has the ability to screen potential clients and will not allow retail investors
to access Research on Multex's Research-On-Demand (as defined below).
(d) Multex may sell and make available the Research with the research
of other research contributors, and may be provided to third parties either
directly by Multex or through a Third Party Data Provider, such as Telerate,
Reuters, Quotron, Bloomberg and ADP.
(e) Notwithstanding anything herein to the contrary, Company may, at
its sole discretion, elect not to provide certain Research documents to Multex
for sale or distribution by Multex under this Agreement ("Excluded Documents");
provided that Company will not provide for sale or distribution such Excluded
Documents to any other vendor or third party distributor, including, without
limitation, any other research or document distributor.
(f) Multex shall pay to Company the following royalties (the
"Royalties") with respect to the sale or distribution of Research:
[****] of the Net Fees (as defined below) received by Multex for the
Research.
Notwithstanding the foregoing, the Company shall in no event receive a royalty
percentage that is less than the royalty percentage received by similar
brokerage firm providers to Multex for Multex Research-On-Demand in terms of
reports and notes generated, including, for example, [****]. The term "Net Fees"
shall be defined to mean the gross revenues received by Multex for the Research,
less any discounts, allowances, adjustments, distribution of pass through fees,
taxes or other charges paid or incurred by Multex in connection with the sale of
the Research.
(g) Multex will determine the price to be paid by its customers for
Research; provided that Multex will price the Research as the same price as
other comparable research that is sold by Multex. Multex shall be entitled to
provide the Research without a fee for a period of time (such period of time not
to exceed 60 days) as a concession or promotion.
(h) Multex shall pay to Company the Royalties with respect to each
calendar month in arrears, within 45 days after the end of such calendar month.
Multex shall provide to Company with the Royalty payment a report showing
Multex's sales of Research and/or third-party usage of the Research during the
relevant month.
(i) Multex shall be responsible for the conversion of the Research to
a format that is suitable for Multex's distribution of the Research. Except as
provided in the preceding sentence, Multex shall have no right to modify, alter
or excerpt the content of any Research document.
(j) Notwithstanding anything to the contrary in this Agreement, (i) if
Multex is in material breach of this Agreement or (ii) Company determines to
cease distribution and availability of any Research to its own customers, Multex
will, as soon as practicable after notice from Company, withdraw any Research
from availability to Multex's customers.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
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(k) The Parties agree that it is not intended that Company will become
an investment advisor with respect to Multex's customers. Multex represents and
warrants that it has notified its current customers, and will notify its future
customers, that the use of Research purchased by such customers is at such
customers' sole risk.
(l) Multex will determine whether it is required to register as an
investment advisor with respect to its customers that receive Research and, if
so required, will take all necessary action to register as an Investment advisor
prior to disseminating Research pursuant to this Agreement.
(m) The Research shall remain the exclusive property of Company, and
Multex shall not acquire any rights in the Research. The Research (and whatever
medium that Multex uses to sell or distribute the Research) shall contain such
disclaimers as are determined by Company. Multex represents and warrants that
it has notified its current customers, and will notify its future customers,
that such customers are customers of Multex, and not of Company.
(n) For purposes of this Agreement, Research shall mean equity
research prepared by the Xxxxxxxxx Xxxxxxxx division of Company consisting (i)
First Calls with Financial Models, (ii) Company Reports, (iii) Industry Reports,
(iv) First Fax: AM and PM editions, and (v) Companies Under Coverage. Research
shall not include (i) debt research or (ii) research by BankAmerica Corporation
and its affiliates, other than the Xxxxxxxxx Xxxxxxxx division of the Company."
B. The Agreement is hereby further amended by including a new section 1B
thereto that shall read as follows:
"1B. Multex Research-On-Demand
(a) Commencing the date hereof, Multex shall make available to Company
for internal distribution exclusively for Company employees selected historical
investment research, business, economic and financial news and related
information contained in the Multex Research-On-Demand database ("Multex
Research-On-Demand"). Multex shall make Multex Research-On-Demand available to
Company via a customized website that has previously been furnished and accepted
by Company (the "Website"). The Website may currently be accessed by 10 end-
users, which number may be increased by mutual agreement between the Parties.
Multex represents and warrants to Company that Multex has full legal right and
authority to provide Company access to Multex Research-On-Demand and doing so
will not result in a breach by Multex of any copyright, license or other
obligation of Multex.
(b) A detailed description of the additional services that are to be
provided by Multex with regard to providing Multex Research-On-Demand to Company
are set forth in Exhibit A to this Agreement.
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(c) Multex Research-On-Demand shall be subject to all of Multex's
restrictions, moratoria and/or limitations on availability regarding the
research or documents included therein which are now, or may in the future be,
imposed by Multex's contributors of such research or documents.
(d) The right to access Multex Research-On-Demand shall be personal to
Company and belong solely to Company for internal distribution to internal
users. Company may not sell or redistribute to any third party the Multex
Research-On-Demand (including any of the Services connected therewith or any
content or research or documents therein) in any manner (including for
promotional purposes, marketing with third parties or the creation or marketing
with third parties or co-branded or private branded websites). Company agrees
that it shall not sublicense or authorize any non-Company employee or any entity
to use the Multex Research-On-Demand without the prior written consent of
Multex.
(e) Company shall pay to Multex the following fees with respect to
Company's utilization of Multex Research-On-Demand:
i) Company shall pay for Multex Research-On-Demand on a per
report basis as set forth in Exhibit B hereto, which exhibit is
incorporated herein by reference. It is understood by the Parties
that Exhibit B may be modified or amended from time to time; provided
that the prices set forth in Exhibit B may not be increased during the
Trial Period or the First Year (as such terms are defined below). All
references to usage of Multex Research-On-Demand shall be calculated
on a per report basis.
ii) For the period beginning the date hereof and ending
May 31, 1998 (the "Trial Period"), Company shall not be required to
pay any fee for its usage of Multex Research-On-Demand; provided that
Company's usage during the Trial Period does not exceed $50,000 in
which case Company shall pay to Multex for its usage of Multex
Research-On-Demand in excess of $50,000.
iii) For the period beginning June 1, 1998 and ending May 31,
1999 (the "First Year"), Company shall pay a minimum fee of [****] per
month (each a "Monthly Minimum Fee") on or before the first day of
each month during the First Year. The total of the Monthly Minimum
Fees to be paid during the First Year shall be [****].
iv) [****]
v) [****]
(f) In the event of any termination of this Agreement, Company shall
have
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
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the right to keep and use all research and other materials obtained from Multex
Research-On-Demand for which the Company has paid, or does pay.
C. The Agreement is hereby further amended by deleting Section 4(a)
thereto in its entirety and replacing it with a new Section 4(a) that shall read
as follows:
"(a) The term of this Agreement shall run until May 31, 2001.
Thereafter, this Agreement shall automatically renew for successive
one-year periods unless either Multex or Company terminates the Agreement
thirty (30) days prior to the commencement of the renewal period. In
addition, this Agreement may be terminated in its entirety (or Sections 1,
1A and/or 1B may be terminated individually) by either Multex or Company at
any time subsequent to May 31, 1999 upon 60 days prior written notice to
the non-terminating party; provided that in the event that Multex
terminates this Agreement in its entirety (or Section 1B individually) for
any reason other than for Company's failure to pay to Multex any fees or
charges owed to Multex under this Agreement within 15 days following notice
by Multex of such non-payment, Multex shall be obligated to pay to Company
any Credit owed to Company under Section 1B hereto. In addition, Company
may, at its sole discretion, terminate Sections 1A and/or 1B of this
Agreement at any time during the Trial Period."
D. The Agreement is hereby further amended inserting a new Section 4(d)
thereto that shall read as follows:
"(d) This Agreement may be suspended for a 45-day period by either
Party without prior notice in the event that such Party, upon the advice of
outside legal counsel, reasonably believes that the other Party is in
violation of a law, order, rule, regulation, writ, injunction, judgment or
decree of any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over such Party or its properties and such
violation is material to the business or operations of the such Party or
there is pending or threatened a material action, suit, claim or proceeding
against the other Party or any of its officers or any of its properties,
assets or rights before any court, government or governmental agency or
body, domestic or foreign, having jurisdiction over such Party or any of
its officers or properties; provided that if the condition giving rise to
the suspension under this Section 4(d) is not removed or cured within the
45-day period, this Agreement may be terminated."
E. The Agreement is hereby further amended inserting a new Section 31
thereto that shall read as follows:
"31. Due Diligence; Audit Rights.
(a) Multex shall make available to Company and its representatives
such
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documents and information and access to such persons as Company shall reasonably
deem necessary to insure compliance by Company with all applicable securities
laws, including, without limitation, issues relating to suitability of customers
receiving Research.
(b) Company will have the right, not more than two times in any
calendar year (and one time within four months following termination of this
Agreement), to have an independent public accountant, reasonably acceptable to
Multex, examine Multex's relevant books, records and accounts for the purpose of
verifying the accuracy of payments made to Company as required under this
Agreement. Company acknowledges and agrees that such accountant shall have
access to the names of Multex's customers solely on the condition that the
accountant not disclose such identities to Company. Each audit will be
conducted at Multex's place of business, or other place mutually agreed to by
Company and Multex, during Multex's normal business hours and with at least five
days prior written notice to Multex. Company will pay all fees and expenses of
the accountant for the examination."
F. The Agreement is hereby further amended inserting a new Section 32
thereto that shall read as follows:
"32. Notice. All notices hereunder shall be in writing, and
If sent to Company:
Xxxxxx Xxxxxx
BancAmerica Xxxxxxxxx Xxxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000 0000
Fax: (000) 000 0000
If sent to Multex:
Office of the President
(copy to General Counsel)
Multex Systems, Inc.
00 Xxxxxx Xxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000 0000
Tel: (000) 000 0000"
G. The Agreement is hereby further amended by amending the definition of
"Services" contained in Exhibit B to the Agreement to include Multex Research-
On-Demand.
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SECTION 2. Reference to and Effect on the Agreement. On and after the
effective date of this Amendment No. 1, each reference to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Agreement shall
mean and be a reference to the Agreement as amended by this Amendment No. 1.
The Agreement, as amended by this Amendment No. 1, is and shall continue to be
in full force and effect and is hereby is all respects ratified and confirmed.
SECTION 3. Execution in Counterparts. This Amendment No. 1 may be
executed in any number of counterparts, each of which counterparts shall be an
original and all of which taken together shall constitute one and the same
Amendment No. 1.
SECTION 4. Governing Law. This Amendment No. 1 shall be governed by,
and construed in accordance with, the laws of the State of California, without
giving effect to such state's principles of conflict of law.
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 1 as
of the day and year first above written.
BANCAMERICA XXXXXXXXX MULTEX SYSTEMS, INC.
XXXXXXXX
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------ -------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx Xxxxxxxxx
Title: Managing Director, Research Title: Chief Financial Officer
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EXHIBIT A
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SERVICES
Service(s) Description
The Multex Research On-Demand database presently consists of at least 150,000
historical research reports from brokerage firms and third parties, which are
made available for purchase and which may be subject to certain embargo periods
prior to release and sale as determined solely by Multex and its contributors.
Service Update
Multex shall continue to update the Services with additional reports on a
periodic basis as new reports are provided by Multex's contributing sources
(e.g., brokerage firms). Multex shall provide to Company on a periodic basis a
revised indexed listing of reports available as part of Multex Research-on-
Demand; such listing shall be revised to reflect new and/or deleted reports from
Multex Research-on-Demand.
Service Format
Multex shall make the reports available in Adobe Acrobat format and any such
additional format that Multex may later choose to support as part of its
Services.
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EXHIBIT B
SUGGESTED LIST PRICES AND TERMS FOR SERVICES
--------------------------------------------
Multex's Suggested List Price for retrieval of Document by Company.
Multex Research on Demand:
-------------------------
Report Size Suggested Retail Price
----------- ----------------------
1-5 pages $10 per report
6-12 pages $25 per report
13-20 pages $50 per report
21-40 pages $75 per report
41-60 pages $100 per report
61+ pages $150 per report
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