Exhibit 23
EXECUTION COPY
AMENDMENT NO. 1
TO
STOCK AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to Stock and Asset Purchase Agreement (this
"Amendment") is entered into as of this 20th day of May, 2005, by and among
MONEYLINE TELERATE HOLDINGS, INC., a Delaware corporation ("MTH"), REUTERS
LIMITED, a corporation organized under the laws of England and Wales
("Limited"), REUTERS S.A., a corporation organized under the laws of Switzerland
("RSA"; Limited and RSA being referred to collectively as "Reuters").
W I T N E S S E T H:
WHEREAS, MTH, Limited and RSA and certain other parties have
previously entered into that certain Stock and Asset Purchase Agreement by and
among them dated December 20, 2004 (the "Purchase Agreement");
WHEREAS, pursuant to Section 10.9 of the Purchase Agreement, such
Purchase Agreement may be amended by a written instrument signed on behalf of
MTH and Reuters; and
WHEREAS, MTH and Reuters wish to amend the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein
shall have the meaning given to them in the Purchase Agreement.
SECTION 2. Amendments to Purchase Agreement. The Purchase Agreement,
including the Exhibits thereto, and the Sellers' Disclosure Schedules are hereby
amended as of the date hereof as follows:
(a) Section 1.1 of the Purchase Agreement is hereby amended to add
the following definition:
""Hyperfeed License Agreement" means the Trading Room System Software
License Agreement, dated May 20, 2005, by and among Limited, MTH and
Hyperfeed Technologies, Inc."
(b) The definition of "Ancillary Agreements" contained in Section 1.1
of the Purchase Agreement is hereby amended and restated in its entirety to
state as follows:
""Ancillary Agreements" means the Escrow Agreement, the Blanket
Assignment of Leases, any Local Assignment of Leases, the
Intellectual Property Assignments, the Xxxx of Sale, Assignment and
Assumption Agreements, the Hyperfeed License Agreement and any and
all other agreements to be executed by the Sellers and the Purchasers
or, as applicable, their respective Affiliates in connection with
consummating the transactions contemplated by this Agreement."
(c) Section 3.16 of the Purchase Agreement is hereby amended to add
the following sentence at the end of such section:
"The representations and warranties made by MTH in the Hyperfeed
License Agreement are true and correct in all respects."
(d) Section 3.16(b) of the Sellers' Disclosure Schedule is hereby
amended to add the following item:
"The Hyperfeed License Agreement"
(e) A new Section 6.30 is added to state as follows:
"Section 6.30 Intellectual Property Matters. MTH and Reuters agree
that:
6.30.1 MTH shall promptly commence all necessary work
under the project plan attached hereto as Exhibit A (the "Active8
Project Plan") to create the Licensee Desktop as specified in the
Hyperfeed License Agreement, including modifing Version 2.11 of the
Telerate Active8 software to (i) remove any remote upgrade
functionality ("Upgrade Removal"), (ii) work only with MTH's TRS
Platform (the "TRS Platform") and (iii) remove all references to the
term "Active8" or any other Xxxx or any term similarly confusing
thereto; provided that each of Reuters and MTH shall bear fifty
percent of all out-of-pocket costs and expenses reasonably documented
by invoices, receipts or other evidence that: (i) are incurred in
connection with implementing the Active8 Project Plan (including all
agreed upon modifications thereto) and (ii) are not the
responsibility of Hyperfeed Technologies, Inc. pursuant to the terms
of the Hyperfeed License Agreement.
MTH shall notify Reuters, on a weekly basis or more frequently as
Reuters may reasonably request, of the progress under the Active8
Project Plan and Reuters shall have the right to perform such
inspections or other reviews during normal business hours as it may
reasonably request, upon reasonable advance notice to MTH, in order
to verify the progress under the Active8 Project Plan.
6.30.2 (a) Pursuant to the project plan attached hereto as
Exhibit B (the "TRS Project Plan"), MTH will use its commercially
reasonable efforts to deliver to Reuters, as promptly as practicable,
(i) a reasonably detailed written description of the required
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environment (including, without limitation, hardware, third party and
software) necessary to create the object code for the TRS Software as
set forth on the Schedule A of the Hyperfeed License Agreement (as
may be modified pursuant to this paragraph, the "Hyperfeed TRS
Software") and (ii) the collection of files (including, without
limitation, source code, configuration and scripts) comprising the
Hyperfeed TRS Software, including any modifications necessary to
ensure that the Hyperfeed TRS Software (excluding feedhandlers) works
only with the TRS Platform.
(b) MTH shall notify Reuters, on a weekly basis or more
frequently as Reuters may reasonably request, of the progress being
made under the TRS Project Plan. Where possible, Reuters will be
provided with copies of the Hyperfeed Software materials identified
in 6.30.2(a)(ii) during the modification process such that Reuters
may perform validation work. Any review of the Hyperfeed TRS Software
by Reuters will take place at a Reuters location and only on a
stand-alone machine(s) not connected to any Reuters network of
systems.
6.30.3 The Hyperfeed TRS Software and any other
information or software delivered to Reuters under this Section 6.30
will be used only by Reuters and its employees for the limited
purposes described in this Section 6.30 and will be returned or
destroyed at the election of MTH upon any termination of this
Agreement. The parties agree that each of Reuters and MTH shall bear
fifty percent of all out-of-pocket costs and expenses reasonably
documented by invoices, receipts or other evidence that: (i) are
incurred in connection with implementing the TRS Project Plan,
including making any modifications to the Hyperfeed TRS Software in
accordance herewith and performing all testing of the Hyperfeed TRS
Software and (ii) are not the responsibility of Hyperfeed
Technologies, Inc. pursuant to the terms of the Hyperfeed License
Agreement.
(f) A new Section 7.2.9 is added to state as follows:
"Prior to the Closing, MTH shall have delivered the Hyperfeed TRS
Software to Reuters complying with the requirements of the Hyperfeed
License Agreement and Reuters shall have had a reasonable
opportunity, but at least one week, to confirm the same."
(g) A new Section 7.2.10 is added to state as follows:
"Prior to the Closing, either (i) the Licensee Desktop shall have
been created or (ii) the Upgrade Removal shall have been completed
and in view of the progress on the Active8 Project Plan to date, all
remaining work on the Active8 Project Plan and to create the Licensee
Desktop in conformance with the terms of the Hyperfeed License
Agreement shall be reasonably expected to be accomplished within four
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weeks of the Closing Date, and in either case Reuters shall have had
a reasonable opportunity to confirm the same."
(h) Section 9.1.3 of the Purchase Agreement is hereby amended by
adding the following at the end of such section:
"; (i) fifty percent of any Liabilities consisting of out-of-pocket
costs and expenses reasonably documented by invoices, receipts or
other evidence that are incurred by Reuters subsequent to the Closing
Date to create the Licensee Desktop which are not the responsibility
of Hyperfeed Technologies, Inc. pursuant to the terms of the
Hyperfeed License Agreement; and (j) fifty percent of all fees, costs
and expenses of or relating to the "Monitoring Trustee" under and as
defined in the Commitments Letter, dated 20 May 2005 (the
"Commitments Letter"), from Reuters Limited and Moneyline Telerate
Holdings, Inc. to the European Commission (such fees, costs and
expenses, the "Monitoring Trustee Fees"), to the extent such
Monitoring Trustee Fees are incurred on or before the thirty (30)
month anniversary of the Closing Date and exceed $500,000 up to a
maximum of $2,000,000 (for the avoidance of doubt, the Sellers'
maximum indemnification obligation under this clause (j) shall be
$750,000)."
(i) The first sentence of Section 9.1.6 of the Purchase Agreement is
hereby amended and restated in its entirety to state as follows:
"The Sellers' indemnification obligations contained in clause (a) of
Section 9.1.3, other than for a breach of a representation or
warranty contained in Sections 3.1, 3.2.1, 3.2.3, 3.3, 3.14 and
3.15.5 (collectively, the "Sellers' Unlimited Warranties"), shall not
apply to any claim for Damages until the aggregate amount of all
Claims under clause (a) of Section 9.1.3 totals $2,000,000 (the
"Basket Amount"), in which event the Sellers' indemnification
obligations contained in clause (a) of Section 9.1.3 shall only apply
to the amount of such Damages in excess of the Basket Amount, subject
to a maximum liability to Purchasers and the Indemnified Parties for
aggregate Damages equal to the Cap Amount; provided, that the
Sellers' indemnification obligations contained in clause (a) of
Section 9.1.3 for a breach of a representation or warranty contained
in Sections 3.4.2 and 3.16 (in either case, solely with respect to
the Hyperfeed License Agreement) shall not be subject to the Basket
Amount limitations set forth in the foregoing sentence of this
Section 9.1.6, but shall be subject to a maximum liability to
Purchasers and the Indemnified Parties for aggregate Damages equal to
the Cap Amount."
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(j) A new Section 9.1.10 is added to state as follows:
"It is hereby agreed that Reuters shall be entitled to submit a Claim
Notice (as defined in the Escrow Agreement) in accordance with the
provisions of the Escrow Agreement on the second anniversary of the
Closing Date (the "Second Anniversary Date") in respect of Monitoring
Trustee Fees that may be incurred following the Second Anniversary
Date in an amount (the "Monitoring Trustee Claim Amount") equal up
to, at Reuters discretion, $750,000 less the aggregate amount of
Monitoring Trustee Fees previously paid by MTH in the event that the
Monitoring Trustee shall not have ceased to act as Monitoring Trustee
pursuant to the Commitments Letter on or prior to the Second
Anniversary Date; provided, that MTH and Limited agree to deliver
joint written instructions to the Escrow Agent promptly after the
thirty (30) month anniversary of the Closing Date to disburse to MTH
an amount equal to the remainder of the Monitoring Trustee Claim
Amount after payment of the portion of all Monitoring Trustee Fees
incurred on or before the thirty (30) month anniversary of the
Closing Date for which MTH is responsible."
(k) Section (f) of Exhibit X of the Purchase Agreement is hereby
amended and restated in its entirety to state as follows:
"(f) any and all Liabilities related to any of the matters
set forth on Section 3.13.1 of the Sellers' Disclosure Schedule,
except with respect to Liabilities arising out of the Real Property
Lease located at 0-0 Xxxxxxxx Xxxxxx, Xxx Xxxx, XX in an amount up to
and including $750,000 in the aggregate;"
SECTION 3. No Implied Amendments. Except as herein provided, the
Purchase Agreement shall remain in full force and effect and is ratified in all
respects. On and after the effectiveness of this Amendment, each reference in
the Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import, and each reference to the Purchase Agreement in any other
agreements, documents or instruments executed and delivered pursuant to the
Purchase Agreement, including without limitation, the Ancillary Agreements,
shall mean and be a reference to the Purchase Agreement, as amended by this
Amendment.
SECTION 4. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MONEYLINE TELERATE HOLDINGS, INC.,
for itself and on behalf of the other Sellers
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
REUTERS LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
REUTERS S.A.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE SHARE AND ASSET PURCHASE AGREEMENT
TELERATE EXHIBIT B
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"TRS SOLARIS CODE RELEASE" SCHEDULE
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DESCRIPTION DATE
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PROJECT PLAN SIGNOFF
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TASKS
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Update build docs to incorporate feedback/details from escrow verification COMPLETED
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Re-run testing on clean trstest and mcttest boxes Fri 20 May
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TRS Beta build Tue 24 May
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Final update and packaging of CDs and docs Fri 27 May
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20 May 2005 Confidential
