1
EXHIBIT 10.31
DEVELOPMENT, SUBCONTRACT, AND OPERATIONS AGREEMENT
This "Development, Subcontract, And Operations Agreement" ("Agreement")
is effective as of May 17, 1999 ("Effective Date"), by and among OptiMark, Inc.,
a corporation organized and existing pursuant to the laws of Delaware, with
principal offices at 10 Exchange Place Center, 24th Floor, Jersey City, New
Xxxxxx 00000 XXX ("OptiMark"), and Japan OptiMark Systems, Inc., a corporation
organized and existing pursuant to the laws of Japan, with principal offices at
9-5, Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000-0000 Xxxxx ("XXX").
SECTION 1 -- DEFINITIONS
1.1 "Joint Venture Agreement" means that certain Joint Venture Agreement,
effective as of September 29, 1998, by and among OptiMark, XXX, Nihon
Keizai Shimbun, Inc. and QUICK Corp. (and all amendments thereto).
1.2 "Technology License Agreement" means that certain Technology License
Agreement, effective as of March 3, 1999 (and all amendments thereto),
by and among OptiMark Technologies, Inc. (now OptiMark U.S. Equities,
Inc., an affiliate of OptiMark) and XXX, which has been assigned from
OptiMark U.S. Equities, Inc. to OptiMark. The following terms shall
have the same meaning as set forth in the Technology License Agreement:
"Intellectual Property Rights," "Japanese Equity Securities," "OptiMark
Technology," and "OSE Securities."
1.3 "Affiliates" of any specified Person shall mean any other Person that
directly or indirectly controls, is controlled by, or is under common
control with such specified Person.
1.4 "Agreement" shall have the meaning set forth in the first paragraph
hereof.
1.5 "Business Day" shall mean for all purposes any day, excluding Saturday,
Sunday and any day on which the Osaka Securities Exchange ("OSE") is
closed.
1.6 "Critical Milestone Dates" shall have the meaning provided in Section
3.3.
1.7 "Day" means a calendar day.
1.8 "Development Phase" shall have the meaning provided in Section 4.1.
1.9 "Force Majeure" shall mean such events including but not limited to
Acts of God, strikes, lockouts, riots, acts of war, epidemics, fire,
communication line failure, power failures, earthquakes or other
disasters, if such is found to be beyond the control of the Party;
provided, however, that an event of Force Majeure shall not include an
action or inaction of Japan's Ministry of Finance ("MOF") (or other
governmental body having jurisdiction over any member of OSE).
1.10 "Installation and Acceptance Phase" shall have the meaning provided in
Section 5.1.
1.11 "Installation Schedule" shall have the meaning provided in Section 5.1.
1.12 "XXX Data Center" shall have the meaning provided in Section 9.1(a).
1.13 "New System" shall have the meaning provided in Section 2.1.
2
1.14 "Milestone Dates" shall have the meaning provided in Section 3.3.
1.15 "Operational Phase" shall have the meaning provided in Section 6.1.
1.16 "Operational Commencement Date" shall have the meaning provided in
Section 6.1.
1.17 "Party" means OptiMark or XXX. "Parties" means OptiMark and XXX,
collectively.
1.18 "Person" shall mean a natural person, corporation, partnership, limited
liability company, association or other governmental or
non-governmental entity.
1.19 "Phase" shall mean each of the Specification Phase, Development Phase,
Installation and Acceptance Phase and Operational Phase.
1.20 "Profiles" shall mean the expression of trading interest in the form of
a satisfaction profile that shows a user's degree of satisfaction
(expressed as a number between zero and one, inclusive) to trade at
each coordinate of a grid showing price and size.
1.21 "Specifications" shall have the meaning provided in Section 3.1.
1.22 "Specifications Phase" shall have the meaning provided in Section 3.1.
1.23 "User" shall mean a person submitting a Profile to the New System.
1.24 "Source Code" means computer programming code, routines and programs in
human readable form.
1.25 "Object Code" means computer programming code, routines and programs in
machine readable and executable form, which has been compiled and
linked from the Source Code.
1.26 "Certificate of Acceptance" shall have the meaning set forth in Section
5.4(c).
1.27 "Deliverable" shall have the meaning set forth in Section 3.3.
1.28 "Effective Date" shall mean the date first written above.
1.29 "Final Acceptance Test" shall have the meaning set forth in Section
5.4.
1.30 "Maintenance Services" and "Technical Support Services" shall have the
meanings set forth in SCHEDULE C hereto. OptiMark and XXX are currently
negotiating in good faith the terms and conditions for such Maintenance
Services and Technical Support Services. The Parties shall indicate
their acceptance of such terms and conditions by executing the first
page of SCHEDULE C no later than September 30, 2000, upon which
execution such terms and conditions shall be deemed accepted and
incorporated into this Agreement. Either Party may terminate this
Agreement if the Parties do not execute SCHEDULE C on or before
September 30, 2000.
1.31 "Third Party Software" shall mean software and documentation that has
been, or will be, licensed from a Third Party for use in the New
System.
1.32 "OptiMark Software" shall have the meaning set forth in Section 2.3.
OptiMark Software shall not include Third Party Software.
3
1.33 "Project Manager" shall have the meanings set forth in Section 7.1.
1.34 "Fatal Error" shall mean the failure of the OptiMark Software to
conform to the Final Specifications such that (a) a critical function
of the New System is inoperable and no immediate circumvention is
possible or (b) the nonconformance is likely to cause XXX to suffer
substantial financial damage.
1.35 "Final Specification" shall have the meaning set forth in Section 3.2.
1.36 "Third Party" shall mean any Person who is not a Party.
SECTION 2 -- OVERVIEW AND PROJECT SCOPE
2.1 THE NEW SYSTEM. Pursuant to the Joint Venture Agreement and the
Technology License Agreement, OptiMark and XXX enter into this
Agreement to develop and operate a computer system based on the
OptiMark Technology for trading Japanese Equity Securities within the
territory of Japan. In this Agreement, the Joint Venture Agreement, and
the Technology License Agreement, this computer system is referred to
as the "New System."
2.2 PURPOSE OF THE AGREEMENT. The Parties shall work as set forth in this
Agreement to develop and operate the New System. This Agreement
contains a framework for the allocation of responsibilities and
schedules for such development and operation.
2.3 OPTIMARK'S GENERAL RESPONSIBILITIES. As described herein or in the
Specifications attached hereto as SCHEDULE A (which comprises SCHEDULES
A-1 and A-2 as described below), OptiMark shall develop under
subcontract from XXX, and provide XXX, with a software implementation
of the OptiMark Trading System ("OptiMark Software") for XXX' use
pursuant to the Technology License Agreement. OptiMark shall make the
Source Code for the OptiMark Software available to XXX as stated in the
Technology License Agreement (as amended). The OptiMark Software
includes such software which OptiMark develops on behalf of XXX under
subcontract to OptiMark by XXX based on Sections 2.1(a) and 2.4(a)(i)
of the Technology License Agreement to localize and customize the
OptiMark Trading System for XXX' use pursuant to the Technology License
Agreement. In addition, as specified herein or in the Specifications,
OptiMark shall (a) train XXX personnel; (b) maintain the OptiMark
Software; (c) provide technical support for the OptiMark Software to
XXX; (d) assist XXX and Third Parties, where appropriate, in
implementing the Third Party Software and (e) perform such other tasks
as assigned to it in the Specifications or as agreed to by the Parties
in writing. OptiMark shall provide the foregoing for the monetary
amounts described herein.
2.4 XXX' GENERAL RESPONSIBILITIES. As described in the Specifications, XXX
shall develop the market data interface, localize and customize the
OptiMark Trading System, whether by itself or obtaining the assistance
of OptiMark and/or Third Parties as permitted under the Technology
License Agreement, and communicate with OSE and Users with regard to
the operation of the New System. In addition, as specified herein, XXX
shall (a) configure and operate the XXX Data Center; (b) be solely
responsible for operating the New System on a daily basis; (c)
interface with the OSE and the MOF for market control and regulatory
supervision; (d) perform sales, marketing, and customer relations
functions in connection with the operation of the New System; and (e)
perform such other tasks as assigned to it in the Specifications or as
agreed to by the Parties in writing.
4
2.5 FOUR PHASES. The Parties shall develop and operate the New System in
the following four phases, which may overlap and interact: (i) the
Specifications Phase; (ii) the Development Phase, (iii) the
Installation and Acceptance Phase; and (iv) the Operational Phase.
5
SECTION 3 -- SPECIFICATIONS PHASE
3.1 SPECIFICATIONS. During the Specifications Phase, the Parties shall
develop complete and detailed functional and operational specifications
("Specifications") for the New System. The Specifications are attached
hereto as SCHEDULE A, which comprises SCHEDULES A-1 and A-2.The
Specifications shall allocate the responsibilities of each Party,
including those generally set forth in Sections 2.3 and 2.4, and shall
incorporate requirements and time schedules stated in this Agreement.
3.2 ACCEPTANCE OF SPECIFICATIONS. The Specifications that the Parties have
agreed to and accepted as of the Effective Date are attached hereto as
SCHEDULE A-1. The Parties shall indicate their acceptance of the
additional Specifications by executing the first page of SCHEDULE A-2,
at which time the Specifications of SCHEDULES A-1 and A-2 shall be
deemed "Final Specifications." If a Party desires to modify the Final
Specifications, the Parties shall follow the procedures in Section 3.4
below.
3.3 MILESTONE DATES. SCHEDULE B sets forth dates ("Milestone Dates") by
which the Parties shall (a) complete tasks for which they are
responsible hereunder and (b) deliver software and/or other materials
("Deliverables") to one another. Certain of the Milestone Dates may be
designated as "Critical Milestone Dates," which indicates that they are
critical for successful and timely development and launch of the New
System. Anything herein to the contrary notwithstanding, the Milestone
Dates may only be altered by written agreement executed by officers of
the Parties. The Parties agree that if necessary regulatory approvals
are not obtained by the indicated Critical Milestone Date, then the
Parties will modify effected Milestone Dates scheduled thereafter.
3.4 MODIFICATIONS.
(a) Prior to the Operational Commencement Date, a Party may
request modifications to the Final Specifications. Such a
request shall be presented in detail to the other Party in
writing. The request shall indicate, at a minimum, whether the
proposed modifications, in the reasonable and good faith
judgment of the requesting Party, would result in an extension
of, or change to, the Installation Schedule, the Milestone
Dates, or the cost of development or operation of the New
System.
(b) If a request for proposed modification to the Final
Specifications under Section 3.4(a) is submitted by XXX, and
OptiMark determines that the request seeks to remedy a Fatal
Error in the OptiMark Software, then OptiMark shall accept the
request and provide XXX with notice of such acceptance within
seven (7) Business Days after receipt by OptiMark of the
request. If XXX does not receive notice accepting or rejecting
the request within the seven (7) Business Days, then the
request shall be deemed accepted by OptiMark. In the case that
the request is accepted, and upon receipt of detailed
specifications from XXX, OptiMark will make commercially
reasonable good faith efforts to provide the requested
modification of the OptiMark Software to XXX within a
reasonable time.
6
(c) If a request for proposed modification to the Final
Specifications is submitted by XXX under Section 3.4(a), and
OptiMark determines that the request seeks to implement a
change required as a direct result of OSE and/or MOF imposing
new regulatory requirements, then OptiMark shall accept the
request and provide XXX with notice of such acceptance within
seven (7) Business Days after receipt by OptiMark of the
request. If XXX does not receive notice accepting or rejecting
the request within the seven (7) Business Days, then the
request shall be deemed accepted by OptiMark. In the case that
the request is accepted, and upon receipt of detailed
specifications from XXX, OptiMark will make commercially
reasonable good faith efforts to provide the requested
modification to XXX prior to any deadlines imposed by OSE or
MOF.
(d) Within seven (7) Business Days after receipt by OptiMark of a
request not covered under Sections 3.4(b) or 3.4(c), OptiMark
shall inform XXX, by written notice, whether it accepts the
request for proposed modifications. If the request is not
accepted, the Parties shall confer in good faith to determine
if and how the proposed modifications may be incorporated into
the New System at a later date. If the Parties determine that
the proposed modifications may be incorporated into the New
System at a later date, and upon receipt of detailed
specifications from XXX, OptiMark will make commercially
reasonable good faith efforts to provide the proposed
modifications to XXX within a time period to be agreed upon by
the Parties.
(e) If a request is accepted, the modifications shall be deemed
effective, and the Agreement, Final Specifications, Milestone
Dates, and effected Schedules will be deemed appropriately
modified to reflect the modifications, as of the date that the
requesting Party receives the notice of acceptance.
(f) After the Operational Commencement Date, modifications to the
functionality of the New System shall be handled by
Maintenance Services and/or Technical Support Services
pursuant to SCHEDULE C hereto.
3.5 EXTENSION OF MILESTONE DATES.
(a) Each Party shall use commercially reasonable good faith
efforts to meet Milestone Dates for which it is responsible.
(b) The Parties acknowledge that they may agree, from time to
time, to modify Schedules and certain Milestone Dates,
including Critical Milestone Dates.
(c) In the event that a Party anticipates at any time that it will
not reach one or more Milestone Dates, it shall immediately so
inform the other Party by written notice including the
reason(s) why it will not reach one or more Milestone Dates,
submit proposed revisions to the Milestone Dates that reflect
the Party's best estimates of what can realistically be
achieved by the original Milestone Date, and continue to work
under the original Milestone Date until such proposed
revisions may be accepted by the other Party.
(d) Each Party shall be excused from delays in performing under
this Agreement, and the Schedules and Milestone Dates
(including the Critical Milestone Dates) shall be
appropriately extended Day-to-Day, to the extent that such
delays result from an event of Force Majeure.
7
SECTION 4 -- DEVELOPMENT PHASE
4.1 DEVELOPMENT/SUBCONTRACT TASKS. During the Development Phase, the
Parties shall develop the New System in accordance with the
Specifications. During the Development Phase, the Parties shall take
the following actions:
(a) Under subcontract from XXX, OptiMark shall develop and
internally test Deliverables as described in the
Specifications, including the OptiMark Software. OptiMark
shall also perform such other tasks as may be described in
this Agreement, assigned or subcontracted to it in the
Specifications, or as agreed to by the Parties in writing.
OptiMark's expenses for development hereunder shall be paid by
XXX as set forth in Section 12 herein.
(b) XXX shall develop and internally test, at its own expense,
Deliverables for which it is responsible for developing
hereunder (excluding those subcontracted to OptiMark which
shall be included in the Deliverables referred to in Section
4.1(a) above), as described in the Specifications. XXX shall
also perform, at its own expense, such other tasks as may be
described in this Agreement, assigned to it in the
Specifications, or as agreed to by the Parties in writing.
SECTION 5 -- INSTALLATION AND ACCEPTANCE PHASE
5.1 INSTALLATION SCHEDULE. During the Installation and Acceptance Phase,
the Parties shall deliver, install, and test the New System. The
Parties shall install the New System according to the schedule
("Installation Schedule") in the Specifications. The Installation
Schedule shall reflect the timing for the installation and connection
of various components of the New System. The Parties shall use
commercially reasonable good faith efforts to minimize deviations from
the Installation Schedule.
5.2 DELIVERY. A Party shall deliver each Deliverable for which it is
responsible in the manner and on the applicable Milestone Date set
forth in SCHEDULE B. Deliverables of OptiMark comprising software shall
be provided in Object Code form; provided, however, that OptiMark may
deliver a Deliverable in Source Code form if it deems it appropriate.
As set forth in Section 17, OptiMark shall deposit Source Code for
certain software Deliverables into escrow. Deliverables of XXX
comprising software shall be provided in Object Code and Source Code
forms.
5.3 TESTING PRIOR TO DELIVERY OF A DELIVERABLE. A Party shall perform its
own interim integration, stress, and other acceptance tests for
Deliverables for which it is responsible for delivering hereunder to
ensure operability and compliance with the Final Specifications. Such
tests for a Deliverable shall be completed prior to the delivery
thereof.
5.4 FINAL ACCEPTANCE TESTS. Upon completion of the delivery of the required
Deliverables, XXX shall subject the New System as an integrated whole
to Final Acceptance Tests, as described in the Specifications. The
Final Acceptance Tests shall include, but not be limited to, testing of
the interface between OSE and the New System and of the interface
between TradeNet and Market Data, as stated in the Specifications. XXX
shall coordinate all such testing with OSE and QUICK Corp., as
necessary, to test these interfaces. OptiMark shall be permitted to
participate in and oversee all Final Acceptance Tests.
(a) The Final Acceptance Tests shall commence on the Milestone
Date specified in SCHEDULE B and continue Day-to-Day
thereafter until completed.
(b) If any portion of the New System fails an applicable Final
Acceptance Test ("Defective Portion"), then the Party
responsible for developing the Defective Portion shall use
commercially reasonable
8
good faith efforts to remedy the failure and then re-submit
the Defective Portion for additional Final Acceptance Tests
pursuant to this Section 5.4. XXX shall pay OptiMark fees and
expenses in accordance with Section 12.2(a) for remedying
errors under this Section 5.4(b); provided that XXX not be
obligated to pay such fees and expenses if the Defective
Portion was known by OptiMark to be directly caused by
intentional or willful misconduct on the part of OptiMark's
employees. XXX shall bear the burden of proof with regard to
the foregoing.
(c) After the New System has passed the Final Acceptance Tests,
XXX' Project Manager shall promptly execute and deliver to
OptiMark's Project Manager a certificate indicating XXX'
acceptance of the New System ("Certificate of Acceptance").
5.5 NOTIFICATION OF DELAY OR FAILURE. In order to anticipate and reduce the
effect of delays or failures, the Parties agree to notify each other as
soon as there is any reason to believe that any delivery will be
delayed and/or that the New System will fail any required test.
SECTION 6 -- OPERATIONAL PHASE
6.1 COMMENCEMENT.
(a) The Operational Phase shall commence on the date ("Operational
Commencement Date" also referred to the "Live" date in
Schedule B) on which (i) all regulatory approvals have been
obtained and (ii) XXX shall have delivered to OptiMark an
executed Certificate of Acceptance. On the Operational
Commencement Date, Users shall have access to, and may
commence trading of OSE Securities through, the New System.
(b) During the Operational Phase, XXX shall, at its own expense,
(i) operate the New System on a daily basis;
(ii) maintain the portions of the New System that were
developed by XXX itself or obtained through the
assistance of Third Parties so that those portions
continue to meet the Specifications and all other
provisions of this Agreement; and
(iii) inform OptiMark of any known errors in the OptiMark
Software.
(c) During the Operational Phase, OptiMark shall provide
Maintenance Services and Technical Support Services to XXX as
set forth in SCHEDULE C. XXX shall pay fees for such services
to OptiMark as set forth in SCHEDULE C.
6.2 VIRUSES, TIME BOMBS, TRAP DOORS. Each Party shall promptly notify the
other Party of any defects in relevant security mechanisms of which it
has actual knowledge, such as time bombs, viruses, trap doors, or
similar programs or devices. The Parties shall use commercially
reasonable good faith efforts to disable and/or correct the same.
9
SECTION 7 -- PROJECT MANAGERS
7.1 PROJECT MANAGERS. No later than five (5) Business Days after the
Effective Date, each Party shall appoint a project manager ("Project
Manager") that will be the primary contacts between the Parties hereto.
Unless otherwise stated herein, the Project Manager for a Party shall
have the authority to bind the Party.
7.2 MEETINGS. The Project Managers shall meet, either in person, by
conference call, or otherwise, at least weekly for the term of this
Agreement to discuss the development and operation of, and other issues
relating to, the New System. XXX' and OptiMark's Project Managers shall
jointly prepare an agenda prior to each meeting and shall record the
minutes and action items for each meeting. The Project Managers may
also meet more frequently on an ad hoc basis if they deem it necessary.
7.3 PROGRESS REPORT. After each meeting, OptiMark's Project Manager shall
prepare a report specifying in detail:
(a) any critical problems encountered, discovered, or continuing
since the previous meeting, including, without limitation, the
failure of either Party in performing, any delay of either
Party in performing, or the inadequate performance of either
Party which may prevent completion of any task by the
Milestone Dates set forth in SCHEDULE B;
(b) the estimated length of any project delay which may result
from any critical problems; and
(c) the specific steps taken or proposed to be taken by either or
both Parties, as appropriate, to remedy such critical
problems.
SECTION 8 -- STAFFING AND TRAINING
8.1 MUTUAL OBLIGATION TO PROVIDE INFORMATION. Each Party shall make
available to the other Party such information and personnel
knowledgeable in its operations as specified in the Specifications or
agreed to by the Parties to facilitate timely completion of the other
Party's obligations. The Parties shall staff the project in accordance
with the Specifications or as otherwise agreed to hereafter.
8.2 TRAINING BEFORE THE OPERATIONAL PHASE.
(a) OptiMark and XXX shall agree on a schedule for OptiMark to
provide reasonable instruction and training to enable XXX to
(i) understand the operation and functioning of the OptiMark
Software; (ii) work with OptiMark to develop the
Specifications; (iii) develop the portions of the New System
for which XXX is responsible; and (iv) react to emergency
situations during the Operational Phase. XXX shall pay to
OptiMark fees and expenses for such instruction and training,
which shall be calculated on a time and materials basis
according to the guidelines set forth in SCHEDULE D hereto,
which may be modified reasonably by OptiMark from time to
time.
(b) OptiMark and XXX shall agree on a schedule for XXX to provide
reasonable instruction and training to enable OptiMark to (i)
understand the operation and functioning of TradeNet
Workstations, end-user requirements, and other portions of the
New System for which XXX is responsible; (ii) work with XXX to
develop the Specifications; and (iii) develop the OptiMark
Software.
10
8.3 POLICIES. Each Party, while on the premises of the other Party, shall
obey, and instruct their employees, agents and contractors to obey all
security, access, safety and other designated policies, including drug
and sexual harassment policies and policies of landlords for the
protection of the other Party's facilities and employees and shall
reassign any Person whom the other Party objects to having on its
premises for a bona fide business reason and shall replace such Person
unless such reassignment would violate applicable law.
SECTION 9 -- FACILITIES
9.1 FACILITIES MANAGEMENT - DATA CENTER.
(a) XXX shall provide the facilities and management thereof
necessary to develop and operate the New System, as described
in the Specifications. These facilities shall be referred to
as the "XXX Data Center." XXX shall provide and be solely
responsible for running the XXX Data Center.
(b) XXX shall make available at the XXX Data Center all
capabilities, managed operations, help desk, and network
infrastructure required for the integration of OptiMark's
Deliverables and the OptiMark Software into the New System.
(c) OptiMark shall have the right to visually inspect the XXX Data
Center prior to XXX' commencement of the Final Acceptance
Tests, and shall provide written notice to XXX of any
noticeable deviations from the Specifications. XXX shall
remedy the deviations within a reasonable time after receipt
of such written notice from OptiMark.
(d) Upon providing reasonable notice to XXX, OptiMark shall have
the right to enter the XXX Data Center to inspect and maintain
the OptiMark Software at all reasonable times.
9.2 EQUIPMENT. XXX shall provide all requisite software, hardware, and
other equipment for the New System, as set forth in the Specifications.
XXX shall maintain all such software, hardware, and other equipment;
provided that OptiMark shall provide Maintenance Services and Technical
Support Services for the OptiMark Software pursuant to Section 6.1(c).
Upon obtaining XXX' prior written authorization, which shall not be
unreasonably withheld, OptiMark may obtain, at XXX' expense, computer
hardware and software that OptiMark will operate in the United States
and that OptiMark believes are necessary to discharge its obligations
under this Agreement. Within thirty (30) days of receipt of an invoice
from OptiMark, XXX shall reimburse OptiMark for all amounts paid by
OptiMark to obtain such computer hardware and software. Upon request
from OptiMark, XXX shall obtain, at XXX' expense, computer hardware and
software that OptiMark will operate in Japan and that OptiMark believes
are necessary to discharge its obligations under this Agreement. A more
detailed description of billing for equipment is included in Schedule F
hereto.
SECTION 10 -- OWNERSHIP AND LICENSES
10.1 The Parties acknowledge and agree that all software, information,
and/or other materials provided by OptiMark to XXX under this Agreement
comprise the OptiMark Technology and/or Optimark Intellectual Property
Rights and are intended to be part of the New System. Accordingly, all
software, information, and/or other materials provided by OptiMark to
XXX under this Agreement shall be subject to the License and
Intellectual Property Ownership provisions of Sections 2 and 7,
respectively, of the Technology License Agreement.
11
10.2 OptiMark shall use commercially reasonable good faith efforts to obtain
licenses for certain Third Party Software for the benefit of XXX. If
OptiMark is able to do so, OptiMark will assign, sublicense, or
otherwise transfer to XXX all rights to, and obligations for, the Third
Party Software that have been obtained by OptiMark for the benefit of
XXX. Such assignment, sublicense, or other transfer shall relieve
OptiMark of all rights and obligations with regard to the Third Party
Software. If OptiMark is not able to do so, XXX shall be responsible
for obtaining appropriate rights in the Third Party Software for use
with the New System. XXX shall reimburse OptiMark for all license fees
and expenses incurred in obtaining the Third Party Software for the
benefit of XXX in accordance with Section 12.2(b). If OptiMark and XXX
cannot procure a license for Third Party Software, then they shall
cooperate to find alternative Third Party Software or to determine
another solution.
10.3 The Parties acknowledge and agree that all software, information,
and/or other materials provided by XXX to OptiMark shall be subject to
the License and Intellectual Property Ownership provisions of Sections
2 and 7, respectively, of the Technology License Agreement.
SECTION 11 -- USERS OF THE NEW SYSTEM
11.1 As soon as reasonable practicable after the Effective Date, but prior
to the Operational Commencement Date, XXX shall use commercially
reasonable good faith efforts to execute a maximum number User
sublicense agreements with potential Users of the New System pursuant
to Section 2.4(a)(ii) of the Technology License Agreement. Such
sublicenses shall also comply with Section 5 of the Technology License
Agreement.
11.2 Within a reasonable time prior to execution of any sublicense
agreement, XXX shall provide a form of such sublicense agreement to
OptiMark for its review. OptiMark shall approve the form of the
sublicense agreement if OptiMark determines, in its sole discretion,
that its proprietary rights are adequately protected thereunder. XXX
may not modify an approved form of sublicense agreement in any material
respect without the prior written consent of OptiMark.
SECTION 12 - FEES AND EXPENSES
12.1 ESTIMATE. OptiMark has provided XXX with an estimate of the fees and
expenses that may be incurred by each Party in carrying out its
obligations hereunder. OptiMark has also provided XXX with an estimate
of hardware and software equipment for the XXX Data Center and its
related facilities. Based on projected usage and trading volumes
provided by XXX, OptiMark believes that the hardware estimate provided
to XXX is adequate.
12.2 DEVELOPMENT FEES AND EXPENSES.
(a) Commencing on May 17, 1999 and pending delivery by XXX of the
Certificate of Acceptance XXX shall pay to OptiMark fees for,
and expenses incurred while, carrying out its obligations
hereunder (including OptiMark's obligations under subcontracts
by XXX to OptiMark). The fees and expenses shall be calculated
on a time and materials basis according to the guidelines set
forth in SCHEDULE D hereto, which may be modified reasonably
by OptiMark from time to time.
(b) OptiMark shall invoice XXX for fees and expenses monthly, with
payment due within thirty (30) days of receipt by XXX. If XXX
does not remit payment with the prescribed period, interest
payable to OptiMark shall accrue monthly at the higher of 1.5%
per month or maximum percentage permitted by law. All payments
shall be made in U.S. dollars. All invoices shall be
12
sent by email or facsimile to Xxxxxxxx Xxxxxxxx, and
simultaneously sent by mail to the same person. All invoices
shall include a description of invoiced fees and expenses,
including the names of persons for whom fees are charged and
the amount of time billed for each such person.
12.3 MAINTENANCE FEES AND EXPENSES. Beginning on the Day that XXX delivers
the Certificate of Acceptance, XXX shall pay to OptiMark fees for
Maintenance Services and Technical Support Services pursuant to
SCHEDULE C.
12.4 OTHER FEES AND EXPENSES. XXX' development hereunder, including the
portions subcontracted to Third Parties and/or OptiMark, shall be
solely at its own expense. XXX shall also pay other fees to and
expenses of OptiMark as may be specified in the Joint Venture Agreement
and/or the Technology License Agreement.
12.5 TAXES.
(a) *
(b) All payments made by XXX to OptiMark under this Agreement for
services performed by OptiMark prior to delivery by XXX of the
Certificate of Acceptance shall be subject to the following:
(i) *
(ii) *
----------------
* This confidential portion has been omitted and
filed separately with the Commission.
13
(iii) *
(c) All payments made by XXX to OptiMark under this Agreement for
services performed by OptiMark after delivery by XXX of the
Certificate of Acceptance, including fees for Maintenance
Services and Technical Support Services pursuant to SCHEDULE
C, shall be subject to the following:
(i) *
(ii) *
(d) All other payments made by XXX to OptiMark under this
Agreement, including payments made for (i) equipment, (ii)
hardware, and (iii) license fees and expenses incurred by
OptiMark in assigning, sublicensing, or otherwise obtaining
Third Party Software for the benefit of XXX in accordance with
Section 10.2, shall be subject to the provisions of Section
12.5(c)(i)-(ii).
(e) In the event that XXX is required to increase any payment
under Section 12.5(c), and provided, further, that OptiMark is
able to claim such increased amount as a foreign tax credit
against its US tax liability pursuant to Section 901 of the
Internal Revenue Code of 1986, as amended, (the "Code"),
OptiMark shall promptly remit the "Benefit Amount" to XXX
following the later of (a) completion of an Internal Revenue
Service audit for the taxable year in respect of which the
aforesaid withholding tax was paid and claimed as a credit
(the "Credit Year") and (b) the expiration of the applicable
statute of limitations for tax adjustments with respect to the
Credit Year including any extensions thereof. For purposes of
the foregoing sentence, the term "Benefit Amount" shall mean
the withholding tax amount multiplied by a quantity, (1-c),
where c equals the highest marginal corporate tax rate
applicable under Section 11 of the Code, provided, however,
that the Benefit Amount shall be zero in any Credit Year in
which OptiMark pays any non-US income or withholding tax in
excess of the "Limitation on Credit" as defined in Section 904
of the Code.
------------------
* This confidential portion has been omitted and filed
separately with the Commission
14
SECTION 13 -- REPRESENTATIONS AND WARRANTIES
13.1 NONINFRINGEMENT WARRANTY. OptiMark represents and warrants that, to
OptiMark's knowledge, the OptiMark Software does not infringe the
patent and copyright rights in Japan of any Third Party. OptiMark makes
this warranty for the OptiMark Software alone and does not make this
warranty with regard to the Optimark Software in combination with any
XXX or Third Party Software, firmware, or data that interfaces with, is
manipulated by, or otherwise operates in conjunction with the OptiMark
Software.
13.2 SERVICE WARRANTY. Each Party represents and warrants that its duties
and obligations under this Agreement shall be carried out in a
professional and workmanlike manner and in conformance with accepted
industry standards and practices.
13.3 WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT,
JOINT VENTURE AGREEMENT, OR TECHNOLOGY LICENSE AGREEMENT, THE
WARRANTIES OF SECTIONS 13.1 AND 13.2 ARE THE ONLY WARRANTIES MADE, AND
THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY
THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT.
13.4 ADDITIONAL WARRANTY DISCLAIMER FROM TECHNOLOGY LICENSE AGREEMENT. THE
PARTIES ACKNOWLEDGE AND AGREE THAT ALL SOFTWARE, INFORMATION, AND/OR
OTHER MATERIALS PROVIDED BY OPTIMARK TO XXX UNDER THIS
AGREEMENT(EXCLUDING THE OBJECT CODE VERSION OF SOFTWARE DEVELOPED BY
OPTIMARK UNDER SUBLICENSE FROM XXX) COMPRISE THE OPTIMARK TECHNOLOGY
AND/OR OPTIMARK INTELLECTUAL PROPERTY RIGHTS AND ARE INTENDED TO BE
PART OF THE NEW SYSTEM. ACCORDINGLY, ALL SOFTWARE, INFORMATION, AND/OR
OTHER MATERIALS PROVIDED BY OPTIMARK TO XXX UNDER THIS AGREEMENT SHALL
BE SUBJECT TO THE WARRANTIES AND DISCLAIMERS CONTAINED IN THE JOINT
VENTURE AGREEMENT AND/OR THE TECHNOLOGY LICENSE AGREEMENT, INCLUDING
BUT NOT LIMITED TO, THOSE STATED IN SECTION 9.1 OF THE TECHNOLOGY
LICENSE AGREEMENT.
13.5 All warranties made by OptiMark are made solely to XXX, and OptiMark
makes and will make no warranties to customers of XXX or any other
Third Parties, including without limitation any User of the New System.
13.6 LIMITATION OF LIABILITY. OPTIMARK SHALL NOT BE LIABLE TO XXX FOR ANY
AMOUNTS EXECEEDING THE LESSER OF (A) AMOUNTS ACTUALLY PAID TO OPTIMARK
UNDER THIS DEVELOPMENT AND OPERATIONS AGREEMENT IN THE SIX MONTHS
IMMEDIATELY PRECEDING THE OPERATIONAL COMMENCEMENT DATE (NOT INCLUDING
AMOUNTS PAID BY XXX TO OPTIMARK FOR THIRD PARTY SOFTWARE, AND OTHER
SOFTWARE AND HARDWARE PURCHASED BY OPTIMARK FOR THE BENEFIT OF XXX) OR
(B) * ; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT
APPLY TO CLAIMS BASED ON BREACHES OF SECTION 14 HEREOF. XXX SHALL NOT
BE LIABLE TO OPTIMARK FOR ANY AMOUNTS EXECEEDING * ; PROVIDED, HOWEVER,
THAT THE FOREGOING LIMITATION SHALL NOT
--------------------
* This confidential portion has been omitted and filed separately with
the Commission.
15
APPLY TO CLAIMS BASED ON XXX' (C) USES OF THE OPTIMARK TECHNOLOGY, THE
OPTIMARK INTELLECTUAL PROPERTY, OR THE NEW SYSTEM OUTSIDE OF THE SCOPE
PERMITTED UNDER THIS AGREEMENT OR THE TECHNOLOGY LICENSE AGREEMENT OR
(D) BREACHES OF SECTION 14 HEREOF. UNDER NO CIRCUMSTANCES SHALL A PARTY
BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF MARKET OR
OPPORTUNITY AND/OR INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER
ARISING (WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF XXX OR
OPTIMARK, OR THEIR RESPECTIVE EMPLOYEES, SUBLICENSEES, AFFILIATES OR
AGENTS OR PURSUANT TO ANY CLAIM IN CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY OR OTHER THEORY) IN CONNECTION WITH THE OPTIMARK TECHNOLOGY,
OPTIMARK INTELLECTUAL PROPERTY, AND/OR THE NEW SYSTEM (INCLUDING THE
USE, PROVISION, OR SUPPORT THEREOF) OR ANY OTHER SUBJECT MATTER OF THIS
AGREEMENT.
SECTION 14 -- CONFIDENTIAL INFORMATION
14.1 COVERED BY TECHNOLOGY LICENSE AGREEMENT. The Parties acknowledge and
agree that all software, information, and/or other materials developed
and/or provided by a Party to the other Party under this Agreement
shall be subject to the Confidential Information provisions of Section
13 of the Technology License Agreement.
SECTION 15 -- TERM AND TERMINATION
15.1 TERM. This Agreement shall commence on the Effective Date and shall
continue unless and until terminated as provided herein.
15.2 GROUNDS FOR TERMINATION. A Party may terminate this Agreement without
prejudice to any other remedy that the Party may have, immediately and
without further obligation to the other Party, in the event of
(a) any breach by the other Party of Section 14 of this Agreement
which cannot be remedied within three (3) Business Days of the
Party's notice to the other Party of the breach and the
Party's intent to terminate this Agreement; or
(b) a material breach other than as set forth in Section 15.2(a)
above which cannot be remedied within ninety (90) Days of the
Party's notice to the other Party of the breach and the
Party's intent to terminate this Agreement.
15.3 TERMINATION OF OTHER AGREEMENTS.
(a) This Agreement shall terminate upon the termination of the
Technology License Agreement.
(b) This Agreement shall terminate upon the termination of or the
Joint Venture Agreement, except if the Joint Venture Agreement
is terminated pursuant to Sections 27.1(iii) of the Joint
Venture Agreement.
15.4 In the event of termination of this Agreement, all fees, expenses, and
other amounts due to OptiMark shall, without notice or demand by
OptiMark, immediately become due and payable by XXX.
16
SECTION 16 - DISPUTE RESOLUTION
16.1 All disputes, controversies or claims arising out of or relating to
this Agreement, or the breach, termination or validity thereof, shall
be resolved by one arbitrator under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce, which rules are
hereby incorporated by reference into this Section 16. The place of
arbitration shall be Xxxxxxxxx, Xxxxxxx Xxxxxxxx Xxxxxx. The language
to be used in the arbitration proceedings shall be English. The
arbitrator may be of any nationality. The arbitral award shall be
rendered in writing and state the reasons for the award. Judgement on
any award may be entered by any court of competent jurisdiction or
application may be made to such a court for judicial acceptance of the
award and any appropriate order including enforcement.
16.2 Notwithstanding the foregoing, the Parties may apply to any court of
competent jurisdiction for a temporary restraining order, preliminary
injunction, or other interim or conservatory relief, as necessary,
without breach of this Section, and without any abridgement of the
powers of the arbitrator.
16.3 In case of arbitration, the arbitrators shall award reasonable
attorneys' fees and expenses to either Party in such manner and to such
extent, as the arbitrators deem equitable. In case of litigation
arising out of this Agreement, the prevailing Party shall be entitled
to recover its reasonable attorneys' fees and expenses from the other
Party.
SECTION 17 -- SOURCE CODE ESCROW
17.1 SOURCE CODE ESCROW/DELIVERY. Within sixty (60) Days after the
Operational Commencement Date, OptiMark shall deliver into escrow,
pursuant to escrow agreements substantially in the form of the escrow
agreement attached hereto as SCHEDULE E-1 hereto ("Escrow Agreement"),
the Source Code for each Deliverable for which it is responsible for
developing hereunder, and all tools, compilers, linkers, and other
software and/or documentation reasonably necessary to generate the
Object code corresponding to the Source Code. The Parties shall execute
the Escrow Agreement prior to the date of such delivery. XXX shall be
responsible for all fees and expenses incurred by either Party under
the Escrow Agreement. Within sixty (60) Days after the Operational
Commencement Date, XXX shall deliver to OptiMark the Source Code for
each Deliverable for which it is responsible for developing hereunder,
and all tools, compilers, linkers, and other software and/or
documentation reasonably necessary to generate the Object Code
corresponding to the Source Code.
17.2 MINIMUM DEPOSIT/DELIVERY REQUIREMENTS. The Source Code to be deposited
by OptiMark or delivered to OptiMark by XXX shall be in a format and on
a storage medium suitable for loading onto the development platform of
the New System, and shall not be encrypted. Insofar as the software on
the New System includes any computer software programs or other
material which are proprietary to Persons other than a Party and for
which Party has no right to deposit or deliver such Source Code, the
Source Code to be deposited or delivered shall not include the Source
Code for any such Third Party computer software programs, but the
deposit or delivery shall include Object Code modules therefor where
Party has the right to deposit or deliver such materials and shall
include an indication of the name, version, and manufacturer of such
software.
17.3 ESCROW RELEASE EVENT. The escrow agent shall release a copy of the
Source Code deposited by OptiMark to XXX only upon the release
conditions specified in the Escrow Agreement.
17
SECTION 18 - COMPLIANCE WITH LOCAL LAWS
18.1 XXX TO PROVIDE INFORMATION. XXX represents and warrants that it has
provided OptiMark with written description of Japanese and other
applicable laws and regulations governing the software and
documentation that is part of the New System, including but not limited
to, laws and regulations governing the importation, development,
operation, and/or encryption of such software and documentation. If
OptiMark or a Third Party modifies the software or documentation that
is part of the New System in order to comply with Japanese or other
applicable laws and regulations governing the same, then the Agreement,
Final Specifications, Milestone Dates, and effected Schedules will be
appropriately modified to accommodate such modifications.
18.2 INDEMNITY. XXX hereby agrees to indemnify, hold harmless, and upon
OptiMark's request, defend OptiMark, and its directors, officers,
employees and agents from and against any and all claims, demands and
actions, and any liabilities, damages, or expenses resulting therefrom,
including court costs and attorney's fees, arising out of or relating
to an actual or alleged violation of Japanese or and other applicable
laws or regulations governing the software and documentation that is
part of the New System.
18.3 REIMBURSEMENT OF FEES AND EXPENSES.XXX shall reimburse OptiMark for all
reasonable fees and expenses incurred as a result of OptiMark's
research and investigation into Japanese and other applicable laws and
regulations that may govern the software and documentation that is part
of the New System.
18.4 NO UNITED STATES EXPORT PROHIBITIONS. OptiMark's investigation into
whether the laws of the United States may prohibit OptiMark from
exporting the OptiMark Software to Japan is ongoing. OptiMark shall
keep XXX informed of the progress of the investigation. Notwithstanding
the foregoing, to OptiMark's knowledge, the laws of the United States
do not prohibit OptiMark from exporting the OptiMark Software from the
United States to Japan.
SECTION 19 - GENERAL MATTERS
19.1 REGULATORY APPROVALS. XXX shall use commercially reasonable good faith
efforts to work with OSE to obtain all regulatory approvals relating to
the operation of the New System.
19.2 FORCE MAJEURE. If the performance of this Agreement or any obligations
hereunder is prevented, restricted or interfered with by reason of
Force Majeure, the Party so affected upon giving prompt notice to the
other Party shall be excused from such performance during such
prevention, restriction or interference.
19.3 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the United States and the State of New York as applied to
agreements entered into and to be performed entirely within New York
between New York residents.
19.4 AUTHORITY. Each Party warrants to the other Party that it has the
authority to enter into this Agreement and that all necessary corporate
or other approvals concerning the authority to enter into this
Agreement have been or will be obtained.
19.5 AMENDMENT. No alteration, waiver, cancellation or any other change or
modification in any term or condition of this Agreement, or any
agreement contemplated to be negotiated or reached pursuant to the
terms of this Agreement, shall be valid or binding on either Party
unless made in writing and signed by duly authorized representatives of
both Parties.
18
19.6 PUBLICITY. Prior to issuing any reports, statements, press releases or
other disclosures to Third Parties regarding this Agreement or the
transactions contemplated herein, the Parties shall exchange copies of
such documents and shall consult with each other regarding their
content. Except as otherwise required by law, neither Party shall issue
any such disclosure without the prior approval of the other Party. XXX
may consult with OptiMark's Mr. Kiyoshi Niki or such other person as
OptiMark designates, to obtain OptiMark's approval. OptiMark may
consult with XXX' Xx. Xxxxxxxx or such other person as XXX designates,
to obtain XXX' approval.
19.7 NOTICES AND OTHER COMMUNICATIONS. Every notice by either Party shall be
in writing and delivered either by personal delivery, or by express
mail or any similar overnight courier service, or by registered or
certified mail, postage prepaid, or by facsimile or by e-mail (when
confirmation copy is sent by registered or certified mail) where notice
is addressed and with copies as set forth below, or at such other
address as the intended recipient previously shall have designated by
written notice to the other Party. All notices delivered in person
shall be deemed to have been delivered to and received by the addressee
and shall be effective on the date of personal delivery. All notices
delivered by express mail or any other similar overnight courier
service shall be effective upon receipt. All notices delivered by
registered or certified mail, e-mail or by facsimile, shall be
effective upon receipt.
If to OptiMark:
OPTIMARK, INC.
00 Xxxxxxxx Xxxxx Center, 24th Floor
Jersey City, New Jersey 07302 USA
Attn: Xxxxxx Xxxxxxx, Chief Technology Officer
Fax: 000-000-0000
E-Mail: xxxxxxxx@xxxxxxxx.xxx
and with copies to:
OPTIMARK, INC.
00 Xxxxxxxx Xxxxx Center, 24th Floor
Jersey City, New Jersey 07302 USA
Attn: Xxxxx X. Xxxxxxxx, General Counsel
Fax: 000-000-0000
E-Mail: xxxxxxxxx@xxxxxxxx.xxx
And if to XXX:
JAPAN OPTIMARK SYSTEMS, INC.
Across Shinkawa Budg.-Annex
16-14, Xxxxxxxx 0-xxxxx
Xxxx-xx, Xxxxx 000-0000, Xxxxx
Attn: Xxxxxxxx Xxxxxxxx
President, CEO
Fax: 00-0-0000-0000
E-Mail: xxxxxxxxx@xxxxxxxx.xx.xx
With copies to
19
Harada, Ozaki & Hattori Law Office
#523 Hiciya Park Xxxx.
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attn: Xxxxxxxx Xxxxx
Fax: 00-0-0000-0000
E-Mail: xxx@xxx.xx.xx
19.8 COUNTERPARTS. This Agreement may be executed in any number of English
language counterparts or duplicate originals, and each such counterpart
or duplicate original shall constitute an original instrument, but all
such separate counterparts or duplicate originals shall constitute one
and the same instrument.
19.9 WRITTEN AGREEMENT TO GOVERN. This Agreement, together with the Joint
Venture Agreement and the Technology License Agreement, sets forth the
entire understanding and supersedes all prior and contemporaneous
agreements and discussions between the parties relating to the subject
matter contained herein and therein, and neither Party shall be bound
by any definition, condition, representation, warranty, covenant or
provision other than as expressly stated in or contemplated herein or
therein or as subsequently shall be set forth in writing and executed
by a duly authorized representative of the Party to be bound thereby.
19.10 NO WAIVER OF RIGHTS. All waivers hereunder must be made in writing, and
failure at any time to require the other Party's performance of any
obligation under this Agreement shall not affect the right subsequently
to require performance of that obligation. No waiver of any breach of
any provision of this Agreement shall be construed as a waiver of any
continuing or succeeding breach of such provision or a waiver or
modification of such provision.
19.11 SEVERABILITY. Whenever possible, each provision, portion and extent of
this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision, portion or extent
of this Agreement should be prohibited or invalid under applicable,
such provision, portion or extent shall be ineffective but only to the
extent of such prohibition or invalidity without invalidating the
remainder of such provision, portion or extent or the remaining
provisions of this Agreement. In such event, the parties agree to
negotiate, in good faith, a valid, legal and enforceable substitute
provision that most nearly effects the parties' intent in entering into
this Agreement.
19.12 SUBJECT HEADINGS. The subject headings of the sections of this
Agreement are included for the purposes of convenience only, and shall
not affect the construction or interpretations of any of its
provisions.
19.13 FURTHER ASSURANCES. The parties shall each perform such acts, execute
and deliver such instruments and documents, and do all such other
things as may be reasonably necessary to accomplish the transactions
contemplated in this Agreement.
19.14 EXPENSES AND FINDER'S FEES. The parties shall each bear their own costs
and expenses (including attorneys' fees) incurred in connection with
the negotiation and preparation of this Agreement and the consummation
of the transactions contemplated hereby.
19.15 RELATIONSHIP BETWEEN PARTIES. Each Party will in all matters relating
to this Agreement be and act as an independent contractor. Neither
Party will represent that it has any authority to assume or create any
obligation, express or implied, on behalf of the other Party, or to
represent the other Party as agent, employee, or in any other capacity.
19.16 LANGUAGE. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof
in any other language shall be for accommodation only and shall not be
binding upon the parties hereto. All communications and notices to be
made or given pursuant to this Agreement shall be in the English
language.
20
19.17 ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties and their respective successors and assigns.
No Party may assign or delegate this Agreement or any of its rights or
duties under this Agreement without the prior written consent of the
other Party, except as expressly set forth herein or to a Person into
which it has merged or which has otherwise succeeded to all or
substantially all of the business and assets of the assignor, and which
has assumed in writing or by operation of law the assignor's
obligations under this Agreement. Notwithstanding the preceding
sentence, OptiMark may assign this Agreement in whole or in part, or
any or all rights, benefits and/or obligations hereunder, to a direct
wholly owned subsidiary of OptiMark or its parent (for example,
OptiMark may form a direct wholly owned subsidiary of OptiMark to be
called OI Japan, Inc. and may assign to OI Japan, Inc. all or any of
OptiMark's rights, benefits and/or obligations under this Agreement).
An assignment to a wholly owned subsidiary of OptiMark shall not serve
to excuse or terminate the obligations of OptiMark under this
Agreement. In the case of such an assignment, all of OptiMark's rights
and benefits shall inure to such subsidiary.
19.18 ALLOCATION OF RISK. The sections on limitation of liability, warranties
and disclaimer of warranties allocate the risks in the Agreement among
the parties. This allocation is reflected in the fees payable between
the Parties pursuant to this Agreement, the Joint Venture Agreement,
and the Technology License Agreement, and is an essential of the basis
of the bargain between the parties.
19.19 CONSTRUCTION. This Agreement is the product of negotiation among the
parties and their respective counsel. This Agreement will be
interpreted fairly in accordance with its terms and conditions and
without any strict construction in favor of any Party. Any ambiguity
shall not be interpreted against the drafting Party.
19.20 CHANGES IN PERSONNEL. If a Party has designated one or more of its
personnel to perform certain tasks or be responsible for certain
obligations under this Agreement, then the Party may substitute such
personnel with other of its personnel if the Party has a reasonable
reason to do so.
19.21 Survival. The following Sections shall survive the termination or
expiration of this Agreement:9.2, 10.1, 10.2 (penultimate sentence
only), 10.3, 13.3-13.6, 14.1, 15.4, 18.2, and 19.1-19.21.
OptiMark, Inc. Japan OptiMark Systems, Inc.
("OptiMark") ("XXX")
By: /s/ Kiyoshi Niki By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- -------------------------
Name: Kiyoshi Niki Name: Xxxxxxxx Xxxxxxxx
Title: President, Japan Title: President, CEO
Date: Date:
21
SCHEDULE A
(SCHEDULES A-1 AND A-2)
FINAL SPECIFICATIONS
22
SCHEDULE A-1
FINAL SPECIFICATIONS
AGREED TO AS OF APRIL 30, 2000
NO DOCUMENT NAME Category Provider NOTE
1 "PCX Version Functional Requirements Specifications" Functionality OI
Ver. 1, November 15th, 1999
2 OptiMark Trading System Version 3.2 Usage Notes Functionality OI
3 FRS Delta in Detail Functionality XXX [subcontracted to OI]
4 Security Static Data Processing Explanation Functionality XXX [subcontracted to OI]
5 Functional Schematic Diagram Project Management XXX [subcontracted to OI]
defining who shall develop what functions.
6 Transaction Fee Calculation System Functionality XXX [subcontracted to OI]
Requirement specification
7 Statutory Book System Functionality XXX [subcontracted to OI]
8 Security Static Data File specifications Functionality XXX Originator is OSE
9 Clearing Record File specifications Functionality XXX [subcontracted to OI]
10 Interface specification (Prints) Functionality XXX [subcontracted to OI]
11 Interface specification (Trade Information) Functionality XXX [subcontracted to OI]
12 Interface specification (Execution Reports) Functionality XXX [subcontracted to OI]
13 Osaka Market Data Client Protocol Functionality XXX [subcontracted to OI]
14 2D FIX Interface Specification for OSE Functionality XXX [subcontracted to OI]
15 Hardware requirement for the New System Hardware XXX [subcontracted to OI]
16 OI Development size estimate Project Management OI
17 OI Development schedule Project Management OI
23
SCHEDULE A-2
FINAL SPECIFICATIONS
TO BE AGREED TO AFTER APRIL 30, 2000
NO DOCUMENT NAME Category Provider NOTE
18 Third party software requirement for the New System Software Packages OI (or XXX
with the information who provides licenses to XXX per
provisions
above)
19 Deliverables for OSE Exchange Project Management OI
The execution of this SCHEDULE A-2 below by the Parties indicates their
acceptance of the Final Specifications described in the documents listed in
SCHEDULE A-2 above, which documents are appended hereto.
OptiMark, Inc. Japan OptiMark Systems, Inc.
("OptiMark") ("XXX")
By: _____________________________ By: _____________________________
Name: ___________________________ Name: ___________________________
Title: __________________________ Title: __________________________
Date: ___________________________ Date:____________________________
*
* This confidential portion has been omitted and filed separately with the
Commission.
24
SCHEDULE B
MILESTONE DATES
MILESTONE/DELIVERABLE MILESTONE DATE
--------------------- --------------
Complete hardware installation at
XXX Data Center January 31, 2000
Install OTS (Version 1) in QA environment April 3, 2000 (Ver. 1.2.0.a)
Install OTS (Version 1) in Production
environment April 17, 2000
Install OTS (Version 2) in QA environment May 19, 2000 (Ver. 1.2.1.c)
Install OTS (Version 2) in Production
environment June 2, 2000
Install additional software July 26, 2000 (Ver. 1.2.3.a)
Commence Final Acceptance Tests July 26, 2000 (Ver. 1.2.3.a)
Operational Commencement Date - October 6, 2000
"Go Live"
25
SCHEDULE C
MAINTENANCE SERVICES AND TECHNICAL
SUPPORT SERVICES
The execution of this SCHEDULE C below by the Parties indicates their
acceptance of the terms and conditions for Maintenance Services and Technical
Support Services as set forth in the attached "Support and Maintenance Plan,"
Version 1.0F, dated January 23, 2001.
OptiMark, Inc. Japan OptiMark Systems, Inc.
("OptiMark") ("XXX")
By: /s/ Kiyoshi Niki By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- -------------------------
Name: Kiyoshi Niki Name: Xxxxxxxx Xxxxxxxx
Title: President, Japan Title: President
Date: January 24, 2001 Date: January 24, 2001
26
SUPPORT AND MAINTENANCE PLAN
--------------------------------------------------------------------------------
XXX XXX/OptiMark Exchange
January 23, 2001
Version 1.0F
27
TABLE OF CONTENTS
1. INTRODUCTION.......................................... 1
1.1. Purpose of the Support And Maintenance Plan........... 1
1.2. Applicability......................................... 1
1.2.1. Effective Date and Term...................... 1
1.2.2. Control of Source Code....................... 1
1.2.3. Version Support.............................. 1
2. SERVICE REQUIREMENTS.................................. 2
2.1. Definition of Terms................................... 2
3. PRODUCTION SUPPORT.................................... 3
3.1.1. Computer Operations.......................... 3
3.1.2. Production Control........................... 3
3.1.3. Technical Services........................... 4
3.1.4. Security administration...................... 4
3.1.5. Application Support.......................... 4
3.1.6. Third Party Software Support................. 5
3.2. Responsibility Matrix................................. 5
3.3. Staffing ............................................. 6
3.3.1. OptiMark..................................... 6
3.3.2. XXX.......................................... 7
3.4. Availability.......................................... 8
3.4.1. OptiMark Staff............................... 8
3.4.2. XXX Staff.................................... 8
3.5. Other Requirements.................................... 8
4. APPLICATION MAINTENANCE............................... 9
4.1. Methodologies......................................... 9
4.1.1. Problem Reporting............................ 9
4.1.2. Problem Determination........................ 9
4.1.3. Problem Resolution........................... 11
4.1.4. Change Management............................ 12
4.1.5. Release Management........................... 13
4.2. Responsibility Matrix................................. 15
4.3. Staffing ............................................. 16
4.3.1. OptiMark..................................... 16
4.3.2. XXX.......................................... 17
4.4. Availability.......................................... 17
4.4.1. OptiMark Staff............................... 17
4.4.2. XXX Staff.................................... 17
4.5. OptiMark Infrastructure Support....................... 18
28
4.6. Other Requirements.................................... 18
5. ENHANCEMENTS.......................................... 18
5.1. Definition............................................ 18
5.2. Methodology........................................... 19
5.2.1. Requirements Definition...................... 19
5.2.2. Requirement Analysis......................... 19
5.2.3. Detailed Design.............................. 19
5.2.4. Development.................................. 20
5.2.5. Integration Test............................. 20
5.2.6. Acceptance Test.............................. 20
5.3. Responsibility Matrix................................. 20
5.4. Timeliness of Delivery................................ 21
5.5. Staffing ............................................. 21
5.5.1. OptiMark..................................... 21
5.5.2. XXX.......................................... 21
5.6. Availability.......................................... 22
5.6.1. OptiMark Staff............................... 22
5.6.2. XXX Staff.................................... 22
5.7. Other Requirements.................................... 22
6. APPENDIX A............................................ 23
6.1. Product Support Staff................................. 23
7. APPENDIX B............................................ 24
7.1. FEES AND EXPENSES..................................... 24
29
OPTIMARK, INC.: Support and Maintenance Plan Introduction
================================================================================
1. INTRODUCTION
1.1. PURPOSE OF THE SUPPORT AND MAINTENANCE PLAN
This "Support And Maintenance Plan" ("Plan") specifies the
Maintenance Services and Technical Support Services that
OptiMark shall provide to XXX during the Operational Phase
pursuant to the "Development, Subcontract, And Operations
Agreement" ("Agreement"). Unless otherwise stated, all
capitalized terms herein have the same meaning as set forth in
the Agreement and all references to "Sections" refer to
sections in the Agreement.
1.2. APPLICABILITY
1.2.1. EFFECTIVE DATE AND TERM
The initial term for the Plan shall commence on the
Operational Commencement Date and shall continue for one (1)
year. The Plan shall automatically renew for successive one
(1) year terms unless otherwise terminated as specified
herein. OptiMark may change the terms and conditions of the
Plan, including OptiMark's fees, upon thirty (30) days written
notice to XXX, but no such change shall be effective prior to
the end of the then current term. XXX may, by fifteen (15)
days written notice to OptiMark, terminate the Plan on the
effective date of any such change(s). In the absence of such
timely notice of termination, the change(s) shall be deemed
accepted by XXX. In the event of termination of the Agreement,
the Plan shall terminate and all fees due under the Plan,
and/or other amounts payable to OptiMark, shall without notice
or demand by OptiMark immediately become due and payable. In
such a case, OptiMark's obligations to provide the services
under the Plan shall immediately cease. OptiMark may terminate
the Plan in the event of default by XXX of its obligations
hereunder, which shall include, but not be limited to, (1) the
Company's failure to install or otherwise implement all
software updates provided as part of the Plan as directed by
OptiMark and (2) XXX' failure to pay fees due to OptiMark
within thirty (30) days notice that the same is thirty (30)
days or more delinquent.
1.2.2. CONTROL OF SOURCE CODE
The services described in this document are applicable so long
as XXX does not receive, and accept maintenance and support
responsibilities for, the source code for the OptiMark
Software. Any such transfer of source code control should be
accompanied by a resolution as to the further applicability,
if any, of OptiMark services under this Plan.
1.2.3. VERSION SUPPORT
OptiMark shall provide the services described in this Plan for
the current and immediately preceding Versions (defined in
Section 2.2) of the OptiMark Software. For example, if
OptiMark has made Version 3.0.0 available to XXX, then
OptiMark shall
30
OPTIMARK, INC.: Support and Maintenance Plan Service Requirements
================================================================================
support Versions 3.0.0 and 2.4.2 (assuming that 2.4.2 was the
highest Version within Version 2.X.Y). As another example, if
OptiMark has made Version 3.2.2 available to XXX, then
OptiMark shall support Versions 3.2.2 and 3.2.1.
XXX shall install new Versions provided by OptiMark into the
production environment of the New System before the next
Version is released. OptiMark agrees not to require
installation of a new production Version more frequently than
every 6 months; provided, however, that OptiMark may direct
XXX to install new Versions before the six month period if
such new Versions are required as a result a modification to
third party software that impacts the operation of the
OptiMark Software. OptiMark shall promptly inform XXX when
OptiMark becomes aware of such a modification.
OptiMark will maintain test environments only for the new
Version, once released, and for the immediately preceding
Version.
2. SERVICE REQUIREMENTS
The Maintenance and Technical Support Services covered by this
document fall into 3 categories:
- Production Support - computer operations, production
control, technical services, security control and
application support, as more fully described in
Section 3.
- Application Maintenance - problem management, problem
determination, problem resolution, change management,
software maintenance, application support, release
management, as more fully described in Section 4.
- Enhancements - services to add additional
functionality to the OptiMark Software at the request
of XXX, as more fully described in Section 5.
2.1. DEFINITION OF TERMS
In describing the delivery of services under this Plan, these
terms will be used with the meaning described:
- "Request" means to initiate a request for services
available under this agreement.
- "Define" means to specify, normally in writing, a
requirement, a plan or a procedure.
- "Assist" means to participate in performance of an
activity, in a consultative or advisory role. The
assistance may be provided onsite rarely, or more
normally by telephone or email.
- "Provide" means to deliver information necessary to
the activity.
- "Perform" means to execute an activity, with full
responsibility for its outcome.
- "Review" means to study a requirement, plan or
procedure, and offer informed, knowledgeable comments
or opinions on the requirement, plan or procedure.
- A "Version" of the OptiMark Software is denoted as
follows: Major.Minor.Control, for example, "3.2.1".
The "Major" designator is the numeral to the
immediate left of the
31
OPTIMARK, INC.: Support and Maintenance Plan Production Support
================================================================================
decimal point furthest to the left - i.e., "3". The "Minor"
designator is denoted by the numeral to the immediate right of
the decimal point furthest to the left - i.e., "2". The
"Control" designator is denoted by the numeral to the right of
the decimal point furthest to the right - i.e., "1".
- The term "support" is intended to be non-specific,
and may imply definition, assistance, review, or
performance according to the particulars of the
situation.
- The term "Application" may also be referred to as
"OptiMark Software".
3. PRODUCTION SUPPORT
Daily operation of the New System will be performed by XXX
pursuant to the Agreement. The OptiMark role for Production
Support will be to support and advise XXX in connection with
such daily operation. It is the intent of XXX to become fully
self-sufficient in operating the New System, and to reduce the
required support from OptiMark as soon as possible. XXX staff
shall have received training as provided for under Section
8.2(a) of the Agreement before the Operational Phase begins.
It is nonetheless likely that at the beginning of the
Operational Phase, XXX will not have acquired all the
necessary competencies in operating the New System, and
OptiMark will provide support as required.
OptiMark will supply the Production Support Services described
in Section 3 on-site and OptiMark's fees and expenses for
these services are described in Section 7.1. .
3.1.1. COMPUTER OPERATIONS
At the request of XXX, OptiMark will provide operational
assistance to XXX for the following activities:
- Specification of new or changed operational
procedures concerning the New System, as required by
the installation of new Versions of the OptiMark
Software or changes in the market.
- Assistance with the maintenance of Application
recovery and restart procedures.
- Training for operations personnel to recognize error
situations concerning the New System.
- Assistance with maintenance of automated tools and/or
procedures.
3.1.2. PRODUCTION CONTROL
When required, OptiMark will provide Production control
assistance to XXX for the following kinds of activities:
- Assistance with maintenance of batch processing
configuration for day end job schedules:
- Resolving scheduling conflicts
32
OPTIMARK, INC.: Support and Maintenance Plan Production Support
================================================================================
- Definition of day-end dependencies
- Restart and recovery procedures for day-end
steps or groups.
- Assistance in ensuring that critical morning events
take place correctly and within agreed time frame
- Assistance with interpreting new or changed
Application messages through the MAXM components that
perform the filtering of Application messages and
events.
3.1.3. TECHNICAL SERVICES
At the request of XXX, OptiMark will provide the following
Technical Service assistance for the following kinds of
activities:
- Analyzing performance study results and understanding
the possible Application configuration choices that
may affect performance
- Assistance with performance tuning choices
- Assistance with capacity planning
- Assistance with Application file backup procedures
- Assistance with database administration
- General consultation on the relationship between the
Application and systems software
3.1.4. SECURITY ADMINISTRATION
OptiMark will assist XXX in determining the security levels
and requirements for the New System, the Application,
resources and user help desk functions, that may result from
Application software enhancements, or changes in operating
conditions or market conditions or rules.
This may include changes to:
- OS level file system security (read, write, execute,
delete)
- Layered Product (e.g. Safeguard) protection scheme
for volumes, sub-volumes, and files
- Data access requirements
- Production ID and aliases to allow efficient data
center operations, including audit trails
- Escalation procedures for emergency access
3.1.5. APPLICATION SUPPORT
At the request of XXX, OptiMark will support XXX in normal
operation of the Application, particularly in the initial
Operational Phase, and after delivery of any new Version
This may include:
33
OPTIMARK, INC.: Support and Maintenance Plan Production Support
================================================================================
- Assisting XXX staff to ensure application
availability and monitoring,
- Assisting in definition of new or changed operational
parameters and conditions,
- General consultation with XXX staff regarding the
Application,
- Providing additional information concerning problem
situations to assist OptiMark personnel
- Facilitating knowledge transfer to the XXX
Application Support team in Tokyo.
3.1.6. THIRD PARTY SOFTWARE SUPPORT
OptiMark will assist XXX in configuration and operation of 3rd
Party Software as it relates to the relationship or interface
with the Application.
This may include:
- Recommending and/or assisting with configuration
options
- Recommending new or changed operational procedures
- Providing support for problem determination as it may
relate to the interface with the Application.
3.2. RESPONSIBILITY MATRIX
Production Support responsibilities are indicated in the
following tables:
Function/Task OptiMark XXX
------------- -------- ---
Computer Operations
Operations procedures Assist Perform
Restart/Recovery procedures Assist Perform
Training Perform Request
Automated Tools Assist Perform
Production Control
Netbatch configuration Assist Perform
Day-end restart/recovery Assist Perform
Holiday processing Assist Perform
Application monitoring Assist Perform
Technical Services
Performance analysis Assist Perform
Performance tuning Assist Perform
Capacity planning Assist Perform
Backup/recovery Assist Perform
34
OPTIMARK, INC.: Support and Maintenance Plan Production Support
================================================================================
Database Administration Assist Perform
Consultations Perform Request
Security Administration
OS level file security Assist Perform
Layered Product configuration Assist Perform
OPS help desk ids Assist Perform
Data access requirements Assist Perform
User groups definition Assist Perform
Escalation procedures for data access Request Perform
Application Support
Answer general inquiries Perform Request
Testing support Perform Request
Support for production problems Perform Request
Redefine operational procedures Assist Perform
Knowledge transfer to XXX areas Perform Request
3rd Party Software Support
Configuration options Assist Perform
Redefine operational procedures Assist Perform
Support for production problems Assist Perform
3.3. STAFFING
3.3.1. OPTIMARK
The OptiMark staffing level is predicated upon the XXX
assertion that it will staff adequately for all reasonably
expected production services and events. Hence, the OptiMark
Production Support team is limited to the following staff as
part of the fixed-price agreement:
- Production Support Manager (1)
- Operations (1)
It is reasonable for solution of production problems that the
OptiMark Production Support team will require additional
expertise. XXX agrees that such support may be called
35
upon, and utilized for solution of problems, upon agreement
between the Production Support Manager and his XXX
counterpart, without requirement for further authorization.
- OTS System Architect
- Component Technical Support Specialists (OPS, GUI,
MW, MEC, MIS)
- Systems Administrators (Tandem, DEC, PC)
In the event that expertise specific to the XXX Application is
required, requests will be escalated to the Application
Support team.
3.3.2. XXX
XXX will provide sufficient staffing to operate the New System
under all normal conditions. This staff shall have undergone
the training to acquire the competencies indicated under
section 8.2(a) of the Agreement. XXX alone will determine the
quantity and underlying skill-set requirements of this staff.
However, in order to complete the transfer of operational
responsibility to XXX completely and successfully, OptiMark
recommends that XXX provide the following minimum skill sets:
- Tandem Systems Administrator
*firm knowledge of the following Tandem utilities:
FUP - file utility program
SCF - subsystem control facility
TCP/IP
NETBATCH - batch scheduler
PATHWAY
DSM/TC - distributed system management/tape catalog
SAFEGUARD - security utility
SPOOLER
ENFORM
MEASURE - performance monitoring utility
* knowledge of SYSTAR and PROGNOSIS third party
products are added benefit
* 2 to 4 years experience in Tandem S series systems
* experience and knowledge in Tandem system software
installation via INSTALL (used to create operating
system image on pre S series systems) and DSM/SCM
(distributed systems management/system configuration
management).
- Unix Systems Administrator
Sr. Unix administrator with at least 4 year
experience (preferably some on TRU64 Unix),
skillful/knowledge with:
RAID,
LSM (Logical Storage Management - like Veritas),
ADVFS (Advance File system), and
NSR (backup software from Legato).
- NT Systems Administrator
Skillset TBD
- Network Administrator
Skillset TBD
- Application Administrator (Integration Specialist)
* Overall knowledge of Installation procedures,
application configuration parameters, 3rd Party tools
installation and configuration
36
OPTIMARK, INC.: Support and Maintenance Plan Production Support
================================================================================
* Knowledge of procedures for starting up/shutting
down the system, and how to check the operating
status of each component
* Knowledge of backup and restore plans and
procedures
- Business Services Support Analyst(s)
* Knowledge of all Help Desk screens and procedures
- Application Support Analyst(s)
* Knowledge of operating the system under normal
conditions
* Knowledge of troubleshooting tools and information
provided by them.
* Knowledge of failure detection and recovery
procedures
* Knowledge of performance monitoring information
3.4. AVAILABILITY
3.4.1. OPTIMARK STAFF
On the Operational Commencement Date, and for several weeks
following, all or part of the Production support team will be
located on-site in Tokyo. Thereafter, the team will return to
Jersey City and provide support on an on-call basis. On-call
support will be made available on all OSE/OptiMark Exchange
trading days, 4AM - Midnight JST (2PM - 10AM EST/3PM - 11AM
EDT). OptiMark shall make one developer and one operations
personnel available via a beeper as a point of contact.
The XXX contact person and the OptiMark Production Support
Manager will work together to prioritize tasks for this group.
3.4.2. XXX STAFF
The XXX contact person needs to be available on-call for all
hours during which OptiMark may be called upon to provide
Production Support services. Staff must be available to
support the provision of any Other Requirements for which XXX
is responsible (e.g. to enable access to the Production
network and equipment).
3.5. OTHER REQUIREMENTS
XXX will provide:
- A designated Manager as single point of contact as
the counterpart to the OptiMark Production Support
Manager. Discussions will be conducted in English.
- All verbal and written communications required with
other vendors (e.g. NAS)
- Controlled online access to production systems from
Jersey City, as may be required for operational
assistance on a per incident basis.
37
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
4. APPLICATION MAINTENANCE
OptiMark will provide Application Maintenance services, which
is in addition to the support as defined in Section 3 of this
Plan that is necessary for normal operation of the New System.
The team may backup the Production support team, may be called
in to solve problems, may advise on system configuration
changes, and modifies, tests, and delivers software if
required to fix defects.
This team will also update the Application as may be necessary
to incorporate features or efficiencies (upgrades) which are
introduced by OptiMark into standard portions of the OptiMark
Software, and which are then made available to XXX as a new
Version of the Application Software.
OptiMark's Application Maintenance services will be delivered
on an as-requested basis, the fees for which will be included
in the overall price of this Plan, as specified in Appendix B.
If at any given time there are no services to be delivered as
part of Application Maintenance, then such staff as are
available under this section may be applied to development of
Enhancements (as defined below), if any.
4.1. METHODOLOGIES
4.1.1. PROBLEM REPORTING
4.1.1.1. Problem Severity
All problems are classified by the severity it causes. For the
purpose of this agreement there will be three severity levels
defined as:
Severity 1 - Application cannot run or continued use will
cause corruption of data.
Severity 2 - Problem is persistent but a workaround is
available. Must be addressed, but can afford to follow
established procedures to migrate the fix to the production
environment. Categorized in Optics as Urgent priority.
Severity 3 - Problem is intermittent, may cause minimal impact
on operation of application. Work around is available. Can
wait for future release to correct the problem. Characterized
in Optics as High or lower priority.
4.1.1.2. Notification Method
Problems which cannot be solved by the Production Support
team, and which are of Severity 1, may be escalated
immediately to by phone or page, to the on-duty Support
Analyst. Problems of lesser severity should be reported using
Optics or other selected defect-tracking tool.
4.1.2. PROBLEM DETERMINATION
4.1.2.1. Investigation
38
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
Based on the information provided, OptiMark will perform the
appropriate investigations to determine the exact nature of
the problem and its root cause within the OTS.
OptiMark will create an Optics ticket prior to any
investigation commencing.
4.1.2.2. XXX Status Updates
OptiMark will provide status updates directly to XXX once each
hour for all problems determined to be Severity 1 in nature.
In addition, the Production Support Manager and Application
Support Manager will participate in conference calls if
required to contribute to the resolution of the problem.
In the case of Severity 2 problems, OptiMark will update XXX
directly when problem determination has been completed, and a
recommended resolution is available. Interim updates will be
provided daily upon request.
In the case of Severity 3 problems, OptiMark will provide an
update by updating the Optics ticket with the resolution and
expected availability. Interim updates would normally be
provided on a weekly basis, as part of a scheduled ticket
review process.
4.1.2.3. Optics Updates
OptiMark will periodically update the Optics ticket with the
current status and actions taken. This would include results
obtained. This will provide a permanent history of the
problem. This information will form the basis for problem post
mortems.
Optics tickets from production problems will be useful as an
analytical tool for future problem resolution and as a measure
of the systems performance and OptiMark ability to effectively
resolve procedure problems.
4.1.2.4. Internal Escalation
OptiMark will adhere to the following guidelines to ensure
that all problems receive the appropriate level of visibility
and attention within the OptiMark organization.
Severity 1 Problems:
- Engage additional resources if the cause of the
problem has not been determined within 30 minutes.
- If unresolved after 45 minutes the Application
Support Manager must be notified.
- If unresolved after 2 hours the CTO is notified.
Severity 2 Problems:
- Severity 2 problems will not be addressed until the
next OptiMark business day at 9:00 am (EST/EDT).
Additional resources to be engaged if unresolved
after 3 hours.
- If unresolved after 12 hours the Application Support
Manager must be notified.
- If unresolved after 36 hours the CTO is notified.
Severity 3 Problems:
39
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
- If XXX has not been given clear indication of the
solution to the problem within 3 OptiMark business
days the Application Support Manager will be
notified.
4.1.2.5. Application Consulting
If OptiMark determines that the Application is not the root
cause of the problem, OptiMark will assist XXX in directing
the problem to the appropriate area of responsibility.
OptiMark will provide the information determined through their
investigations and provide additional information on the
functional aspects of the Application to assist in the
resolution of the problem.
4.1.3. PROBLEM RESOLUTION
4.1.3.1. Root Cause Analysis
OptiMark will perform the necessary analysis to establish the
cause of the problem. The Support Analyst will look at the
areas of the system that it deems necessary, which would
include the Application, configuration, and application data
processed by the system.
OptiMark expects that XXX will make available any resource
deemed necessary by the Support Analyst to aid in determining
the root cause. This information will be used in determining
the course of action to successfully resolve the problem.
4.1.3.2. Recommended Resolution
OptiMark will provide a recommended approach to XXX for
approval. The recommendation may involve one or more of the
following items:
- Environmental or operating system modifications,
- Application configuration changes,
- Data modifications,
- Application code modifications
- A `work around' that will isolate the problem and its
impact on production until a permanent solution can
be tested and implemented.
OptiMark will not institute any solution without XXX knowledge
and approval. A verbal approval may be considered acceptable
in certain emergency situations. This must be documented on
the problem ticket, specifying the approver and followed with
a written confirmation.
4.1.3.3. Emergency Changes
Under the direction of XXX, OptiMark may provide emergency
changes to the application code to resolve a problem. This
will only be considered for problems designated as Severity 1
and if no acceptable work around is available. All other
instances will be handled through the normal defined
procedures.
40
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
OptiMark will make every reasonable effort to ensure that any
emergency fixes will not cause other problems.
All changes introduced as emergency changes will not be deemed
permanent until they have been thoroughly tested and passed
the Quality Assurance criteria.
OptiMark will place emergency code changes on the integration
test FTP site, where XXX must approve and perform moving the
code to the production FTP site for implementation into
production. Control at the XXX is maintained via the migration
process to the production environment.
4.1.3.4. Application Configuration/Data Modification
OptiMark will assist XXX in making changes to the application
configuration data where it has been determined that this will
resolve the problem. OptiMark will assist XXX in updating the
supporting documentation to reflect these changes.
All changes are made with the verbal or written approval of
XXX.
4.1.3.5. Operating System/Hardware Issues
OptiMark will act as a consultant to XXX regarding the impact
that the current problem or determined changes will have on
the Application.
XXX or their designated authority will perform any changes as
a result of these consultations.
4.1.3.6. Tracking
OptiMark will regularly update Optics with the status of a
problem. This will include, but is not limited to, steps
taken, any verbal approvals given, results observed, and
estimated time to resolution.
4.1.4. CHANGE MANAGEMENT
4.1.4.1. Overview
Change management is the process where application changes are
migrated through the appropriate test environments, and
implemented into the production environment.
4.1.4.2. Source Management
OptiMark will maintain the source for the Application.
OptiMark will utilize industry standard tools for the
management of the source code. This will ensure that a fully
functioning system can be reproduced at any time and this will
significantly reduce the amount of time and effort to prepare
a new release.
OptiMark will periodically update the source code held in
escrow, as directed by XXX, and at XXX expense.
4.1.4.3. Tracking and Prioritization
Using Optics as the vehicle for identifying all changes in
progress, OptiMark will coordinate the release schedule and
release contents with XXX.
41
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
4.1.4.4. Change Meetings
XXX will arrange periodic conference calls between all
necessary parties. The objectives of these calls are to review
the changes that can be addressed in a particular timeframe
for implementation. In order to be implemented the following
criteria must be reviewed and all parties must agree that this
criteria has been met:
- Completed documentation and release notes,
- Fully defined fallback procedures,
- Assessment of risk and
- Potential conflict with other scheduled changes.
4.1.4.5. Document Release Notes
OptiMark will prepare Release Notes for all the changes to the
Application.
4.1.4.6. Fallback Procedures
Prior to the introduction of a new release, OptiMark will have
a specific and detailed plan, which will define how these
changes are to be backed out of the environment in the event
of unforeseen problems.
4.1.4.7. Risk Assessment
Prior to the implementation of any change, OptiMark will
prepare an assessment of the risk in introducing the change,
including steps which can be taken to mitigate the risks.
4.1.4.8. Implementations and Walkthroughs
OptiMark may participate in scheduled walkthroughs of install
procedures, code releases, and back-out procedures with XXX or
its designate for application releases.
OptiMark may provide onsite support to XXX for application
installs when warranted by the complexity or risk.
4.1.5. RELEASE MANAGEMENT
4.1.5.1. Source code support tools
RMS is a Revision Management System, provided by Data Design
Systems Inc. and used for the OPS Application source and
object management. Clearcase is a similar source code and
release management system used for all other components of the
system.
OptiMark will perform changes and maintain the structure of
the source code for the New System catalogs as necessary for
the safe storage and efficient release of such software. As
part of the Order Profile System release automation, RMS has
also been installed on the XXX Production and Development
Tandems. As with other 3rd Party software products, OptiMark
will provide installation, configuration and maintenance
support in order to maintain a smooth coordination with the
OptiMark Software.
42
4.1.5.2. Macros and tools
OptiMark will continue to maintain, and where necessary
improve, existing TACL and RMS macros which have been created
to automate release promotion, pathway environment generation,
and fallback procedures associated with any release of the OPS
component.
4.1.5.3. Release promotions
Until XXX feels comfortable with performing release
promotions, OptiMark will execute this process.
43
4.2. RESPONSIBILITY MATRIX
Application Support and Bug Fix responsibilities are indicated
in the following tables:
Function/Task OptiMark XXX
------------- -------- ---
Problem Management Support
Problem tracking, Optics Perform Provide
Major Incident Owner Assist Perform
Problem Determination
Data gathering, investigation Perform Provide
Obtain secure data access Request Perform
XXX Status updates Perform Request
Optics updates Perform Perform
Internal OptiMark escalations Perform N/A
Application consulting Perform Request
Problem Resolution
Root cause analysis Perform Review
Identify solutions, options, Perform Review
recommended approach
Provide emergency changes Perform Review
Application configuration/data Assist Perform
modification
Operating system/hardware issues Assist Perform
Tracking Perform Perform
Change Management
Source management Perform N/A
Optics, tracking/prioritization Perform Provide
Change meetings Assist Perform
Release notes Perform Review
Define fallback procedures Perform Review
Risk assessment Perform Assist
Resolve scheduling conflicts Review Perform
Implementation walkthroughs Perform Review
Implementations Assist Perform
Software Maintenance
Source maintenance Perform N/A
Modifications/enhancements for Provide Initiate/Review
defects
Development/unit/sys/int. testing Perform N/A
44
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
Test tools Perform Assist At
completion of
phase 1.1 the
responsibilities
will switch
Test scripts, regression Perform Assist At
completion of
phase 1.1 the
responsibilities
will switch
Integration test Perform Assist
Acceptance test execution Assist Perform
Release Management
Release Tools - Perform N/A
Installation/configuration/maintenance
Release build Perform N/A
Emergency releases Perform N/A
Release install Perform Assist
4.3. STAFFING
4.3.1. OPTIMARK
The OptiMark Application Support and Maintenance team will
include the following staff as part of the fixed-price
agreement:
- Productions Support Manager (1) -- (same person as in
Section 3)
- Developers (5)
XXX understands that such staffing level represents a bare
minimum necessary to maintain the continuity of product
knowledge, and is insufficient to completely prepare even a
relatively simple bug fix, as there is no provision for
integration, quality assurance, source code control,
documentation, or systems administration. XXX understands that
the following minimum additional staff will be regularly
required, on a time and materials basis, to deliver any
changes to the system. XXX agrees that such support may be
utilized for delivery of releases, upon agreement between the
Application Support Manager and his XXX counterpart, without
requirement for further authorization:
45
OPTIMARK, INC.: Support and Maintenance Plan Application Maintenance
================================================================================
- Q/A Manager (1/2) and Staff (3)
- Source Code Control/Release Staff (2 @ 1/2)
- Documentation (1/2)
- Tandem, DEC, PC Systems Administrators (3 @ 1/2)
In addition, the OptiMark Application Support and Maintenance
team may call on the following staff as needed, on a time and
materials basis, with additional XXX approval, if needed to
accelerate a particular delivery:
- Development Project Leader
- Additional Component Developers
- Additional Q/A Staff
- Additional Source Code Control/Release Staff
- Documentation Specialists
- Networking Specialist
4.3.2. XXX
XXX will provide staff to perform the following functions:
- Management of application support - requirements,
scheduling, approval
- Code maintenance of the XXX-built components of the
New System
- Q/A Test of OptiMark code releases
- Installation of OptiMark code releases
4.4. AVAILABILITY
4.4.1. OPTIMARK STAFF
The Application Support and Maintenance team will be available
on-call for problem determination during the New System
operating hours, 4AM - 10PM JST (2PM - 8AM EST/3PM - 9AM EDT).
However, they will ordinarily work according to EST/EDT hours.
The team will be allocated for XXX development, and will
prioritize tasks as agreed between the OptiMark Application
Support Manager and the appointed XXX contact person. Insofar
as time allows, this staff may undertake development of
Enhancements. OptiMark shall make one developer and one
operations personnel available via a beeper as a point of
contact.
For any additional staff, XXX support requirements will
compete with all other OptiMark projects for their time.
4.4.2. XXX STAFF
Under normal circumstances, XXX development staff will work
according to JST hours.
46
OPTIMARK, INC.: Support and Maintenance Plan Enhancements
================================================================================
4.5. OPTIMARK INFRASTRUCTURE SUPPORT
Provision of the services herein will require availability of
multiple OptiMark development and test environments. XXX shall
pay to OptiMark fees and expenses for such hardware and
facilities as set forth in Schedule F to the Agreement.
4.6. OTHER REQUIREMENTS
XXX will provide:
- A single point of contact for Application
Support/Problem Management. Discussions will be
conducted in English.
- All verbal and written communications required with
other vendors (e.g. NAS)
- Online access to production systems from Jersey City,
as may be required for problem determination.
5. ENHANCEMENTS
5.1. DEFINITION
XXX may request certain additional functionality be added to
the OptiMark Software that is part of the New System
("Enhancements"). Such Enhancements may be changes to the
software or configuration required due to changes or additions
to the New System Functional Requirements. When completed, the
functional requirements for such Enhancements, and the
associated Deliverables and Milestone Dates, shall be appended
to Schedules A and B of the Agreement, respectively, and shall
be governed by the terms and conditions of the Agreement.
The Enhancement requests from XXX may require modifications to
the OptiMark Software that are required by OSE or MOF and/or
modifications to the OptiMark Software that are requested by
XXX and are not required by OSE or MOF. The delivery
obligations and times for each type of Enhancement differ as
described below in section 5.4.
Enhancements may also result from requirements to increase
system capacity. To implement these, changes may be required
to OptiMark-supplied components, or to those components in
coordination with changes to XXX-supplied components or
components provided by interfacing systems, such as OSE or
TradeNet systems. Changes may also be required to the
then-installed Hardware components of the New System.
The OptiMark Software components of the New System may be
comprised of both standard and customized portions. To the
extent that the requested Enhancements require modification of
the standard portions of the OptiMark Software, the
Enhancements will always be made to the then-current Version
of the standard OptiMark Software that is part of the New
System.
47
OPTIMARK, INC.: Support and Maintenance Plan Enhancements
================================================================================
OptiMark's fees and expenses for these services are set forth
in Appendix B.
Change Management and Release Management services are also
required for delivery of enhancements, and are performed as
indicated in the previous section.
5.2. METHODOLOGY
When Enhancements are required, OptiMark and XXX will use the
methodology described in this section.
5.2.1. REQUIREMENTS DEFINITION
XXX will provide OptiMark with a requirements specification
document. This document will indicate in as much detail as
possible the changes required in all components of the system.
XXX will also name a contact person to respond to any
questions which may result from analysis of the requirements.
5.2.2. REQUIREMENT ANALYSIS
After study of the enhancement requirements and gathering of
any necessary supporting materials, OptiMark will provide XXX
with a requirement analysis document that defines both the
functional and technical requirements, as understood by
OptiMark. Accompanying this analysis will be a recommended
design including estimated time and effort to complete the
solution.
If, in OptiMark's reasonable opinion, the amount of time
required to develop a requested Enhancement(s) would exceed
five hundred (500) man-days, then OptiMark shall not be
obligated to develop such Enhancement(s). XXX shall pay to
OptiMark fees and expenses for the Enhancement(s) as described
in Appendix B.
Enhancements to the System will be reviewed from an
architectural perspective to ensure that application design
principles inherent in the application are maintained, and
that performance characteristics of the application are not
compromised.
If the functional requirements provided could jeopardize the
integrity or performance of the production application,
OptiMark will document the findings and formally present them
to XXX prior to preparing a detailed design. Where possible,
OptiMark will present alternative methods for attaining the
desired goal.
OptiMark will then require written confirmation of XXX' desire
to proceed.
5.2.3. DETAILED DESIGN
When XXX signs off on the appropriate documentation, OptiMark
will proceed with a detailed design and provide a confirmation
of the estimate of time and effort to complete the task.
There may be iterations of the design process, depending on
complexity, number of other components impacted or if the
functional requirements change, or if the required `time to
market' for the solution demands an accelerated project life
cycle.
OptiMark and XXX will agree on the acceptance criteria and
will state the criteria in the detail design documentation.
48
OPTIMARK, INC.: Support and Maintenance Plan Enhancements
================================================================================
Upon receiving approval of the design, OptiMark will proceed
with the modifications.
5.2.4. DEVELOPMENT
OptiMark will adhere to commercially reasonable effort for all
development activities. As part of the development cycle,
OptiMark will be responsible for performing unit and system
testing. This will also include limited integration testing.
XXX will be responsible for integration and acceptance
testing, including the preparation of test plans, scripts and
data.
OptiMark will make any required changes to the regression test
bed based for the changes in progress.
5.2.5. INTEGRATION TEST
OptiMark will assist XXX in scheduling and performing
integration tests in a fully functional environment with
production level system components. XXX is responsible for the
definition and execution of these tests.
5.2.6. ACCEPTANCE TEST
OptiMark and XXX will agree on the acceptance test criteria,
stated in the detail design documentation.
OptiMark will provide support to the acceptance test and
ensure that deviations from the functional requirements are
investigated and corrected.
The acceptance test must be performed in a `production like'
environment, with minimal developer intervention. Its purpose
is to determine that the application changes are correct from
the regression test perspective, the new functional
requirement perspective, and from an operability test
perspective.
5.3. RESPONSIBILITY MATRIX
Enhancement responsibilities are allocated to OptiMark or to
XXX as indicated in the following tables:
Function/Task OptiMark XXX
------------- -------- ---
Enhancement Services
Requirements definition Review Perform
Requirements Analysis Perform Review
Architectural review Perform Review
Authorize Detailed Design N/A Perform
Detailed design Perform Approve
Development/unit/sys testing Perform N/A
Test tools update Perform Assist At
completion of phase
1.1 the
responsibilities
will switch
49
OPTIMARK, INC.: Support and Maintenance Plan Enhancements
================================================================================
Test scripts, regression Perform Assist At
completion of phase
1.1 the
responsibilities
will switch
Integration test Perform Assist
Acceptance test execution Assist Perform
Release management Perform N/A
OptiMark Documentation Update Perform Approve
Issues Escalate Initiate
5.4. TIMELINESS OF DELIVERY
If XXX requests an Enhancement which is required as a direct
result of OSE and/or MOF imposing new regulatory requirements,
then OptiMark will make commercially reasonable good faith
efforts to provide such additional functionality to XXX prior
to any deadlines imposed by OSE or MOF.
If XXX requests an Enhancement which is not required as a
direct result of OSE and/or MOF imposing new regulatory
requirements, then OptiMark will make commercially reasonable
good faith efforts to provide such additional functionality to
XXX by a date to be mutually agreed upon by XXX and OptiMark.
5.5. STAFFING
5.5.1. OPTIMARK
Such OptiMark staff which are provided under the Application
Maintenance portion of this Agreement, who are not engaged in
such Maintenance, shall be available to work on Enhancements.
In the event that XXX requires faster delivery of one or more
Enhancements than can be accomplished by such staff, XXX may
request that additional staff be engaged.
The OptiMark Application Support Manager will serve as the
single point of contact for management of XXX enhancement
requests.
5.5.2. XXX
See staffing for Application Maintenance. XXX will augment
such staff as is necessary to deliver any XXX components
required by the requested Enhancement.
50
OPTIMARK, INC.: Support and Maintenance Plan Enhancements
================================================================================
5.6. AVAILABILITY
5.6.1. OPTIMARK STAFF
Enhancement staff will be available only during normal EST/EDT
working hours, unless prior arrangement is made.
5.6.2. XXX STAFF
See availability for Application Maintenance.
5.7. OTHER REQUIREMENTS
XXX will provide:
- Single point of contact for Enhancement Management.
This may be the same person as is provided for
Application Support/Problem Management. Discussions
will be conducted in English.
- All verbal and written communications required with
other vendors (e.g. NAS)
- A production-like environment for Integration
testing, including arrangements for OSE and/or
Customer system set-up.
OptiMark's ability to provide enhancements presupposes the
following services are contracted as part of Application
Maintenance: change management, software maintenance, release
management
51
OPTIMARK, INC.: Support and Maintenance Plan Appendix A
================================================================================
6. APPENDIX A
6.1. PRODUCT SUPPORT STAFF
This appendix lists the OptiMark personnel ("Staff") that will
perform the services described in Sections 3 and 4 of the
Plan. Depending on the requirements of XXX or specific
problems encountered by OptiMark in the course of performing
the services described in Sections 3 and 4, other personnel
("Additional Staff") may be enlisted on a permanent basis to
perform services under this Plan on a time and materials
basis.
MANAGEMENT/ADMINISTRATIVE SERVICES
XXX Project Manager -- Ypeus Oostenbrug, who will be:
the primary technical and systems contact between
OptiMark and XXX;
responsible for coordinating all planning & budgeting
activities;
responsible for production and application support
(Sections 3 and 4)as well as Enhancements (Section
5); and
responsible for providing XXX with estimates and
billing.
Product Support Manager -- Xxxxx Xxxxxxxx
Project Administrator - Xxxx Xxxxxxxxx (equivalent of 75% of
his time), who will be responsible for:
coordinating and documenting releases from
development to QA;
preparing tracking reports;
promoting timely completion of milestones; and
preparing meeting minutes.
PRODUCTION SUPPORT SERVICES (SECTION 3)
None.
APPLICATION SUPPORT SERVICES (SECTION 4)
DEVELOPERS COMPONENT
Menache Middleware
Xxxxxxx
Xxxxxx Xxxxxx MRM/MEC
Xxxx Xxxxxxx GUI
Xxxxxxx Xxxx OPS
Xxxx Xxxxxx Metrics/Audit
52
OPTIMARK, INC.: Support and Maintenance Plan Appendix B
================================================================================
7. APPENDIX B
7.1. FEES AND EXPENSES
1. PAYMENT OF FEES AND EXPENSES
XXX shall pay fees for, and reimburse OptiMark for expenses
incurred in connection with, the provision of the services set
forth in Sections 3, 4, and 5 of the Plan ("Support Amounts").
The reimbursement of expenses shall include, but not be
limited to, amounts paid by OptiMark to third parties for
maintenance and support of such third parties' software that
has been provided to XXX. OptiMark shall invoice XXX for the
Support Amounts (and any additional amounts described below)
monthly, with payment due within thirty (30) days of receipt
by XXX. If XXX does not remit payment with the prescribed
period, interest payable to OptiMark shall accrue monthly at
the higher of 1.5% per month or maximum percentage permitted
by law. All payments shall be made in U.S. dollars. All
invoices shall be sent by email or facsimile to Xxxxxxxx
Xxxxxxxx, and simultaneously sent by mail to the same person.
All invoices shall include a description of invoiced fees and
expenses, including the names of persons for whom fees are
charged and the amount of time billed for each such person.
All amounts due to OptiMark under this Plan shall be payable
in accordance with Section 12.5(c) of the Agreement.
OptiMark may change the Support Amounts and hourly rates of
its personnel upon thirty (30) days written notice to XXX ,
but no such change shall be effective prior to the end of the
then current term. XXX may, by fifteen (15) days written
notice to OptiMark, terminate the Plan on the effective date
of any such change(s). In the absence of such timely notice of
termination, the change(s) shall be deemed accepted by the
XXX.
2. PRODUCTION AND APPLICATION MAINTENANCE (SECTIONS 3 AND 4)
FIXED PRICE FOR DEDICATED STAFF
For the initial annual term, the base Support Amounts payable
to OptiMark shall total two million two hundred forty nine
thousand four hundred forty dollars (US$2,249,440.00).
The Support Amounts are based on (a) each of the Staff (with
the exception of the Project Administrator) identified in
Appendix A working eight (8) hours per day for the equivalent
of two hundred and forty days in the initial term and (b) the
Project Administrator working eight (8) hours per day for the
equivalent of one hundred eighty days in the initial term.
The Support Amounts also include fees for one (1) Developer
and one (1) Operations personnel being accessible fifty two
(52) weeks per year via a beeper during the operating hours of
the New System.
The Support Amounts will be adjusted higher if any of the
Staff works above the indicated times. Each additional hour
worked, or portion thereof, beyond the indicated times will be
billed to XXX as additional Support Amounts at the following
rates:
XXX Project Manager -- $ * per hour
--------------------------
* This confidential portion has been omitted and filed
separately with the Commission.
53
OPTIMARK, INC.: Support and Maintenance Plan Appendix B
================================================================================
Product Support Manager -- $ * per hour
Developer -- $ * per hour
QA -- $ * per hour
Operations -- $ * per hour
Project Administrator -- $ * per hour
On-call via beeper -- $ * per week per person
RATES FOR ADDITIONAL DEDICATED STAFF
XXX shall have the option to enlist Additional Staff as
follows to perform the Services in Section 3 and 4 as follows.
XXX may add Additional Staff upon sixty (60) days advance
written notice to OptiMark. XXX shall pay fees, in addition to
the base Support Amounts, to OptiMark for such Additional
Staff on an hourly basis as follows:
XXX Project Manager -- $ * per hour
Product Support Manager -- $ * per hour
Developer (OptiMark employee) -- $ * per hour
Developer (hired consultant) -- *
QA -- $ * per hour
Operations -- $ * per hour
Project Administrator -- $ * per hour
XXX may decrease the number of Staff or Additional Staff upon
ninety (90) days advance written notice to OptiMark and
OptiMark's Support Fees shall be adjusted accordingly as of
the later of (a) the date that the number of Staff or
Additional Staff is decreased or (b) the date specified in the
written notice provided by XXX.
RATES FOR ADDITIONAL NON-DEDICATED STAFF
If one or more Developers, in addition to the Developers
included with the Staff and Additional Staff, are required on
a temporary basis by OptiMark to fix bugs in the OptiMark
Software in a timely manner, then such Developer(s) shall be
billed to XXX at the rate of $ * per hour.
If one or more OptiMark personnel, in addition to the Staff
and Additional Staff, are required on a temporary basis by
OptiMark for purposes other than fixing bugs as described in
the paragraph above, then such personnel shall be billed to
XXX as follows:
XXX Project Manager -- $ * per hour
Product Support Manager -- $ * per hour
Developer (OptiMark employee) -- $ * per hour
Developer (hired consultant) -- *
QA -- $ * per hour
Operations -- $ * per hour
Project Administrator -- $ * per hour
--------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
54
OPTIMARK, INC.: Support and Maintenance Plan Appendix B
================================================================================
3. ENHANCEMENTS (SECTION 5)
For the initial term, OptiMark shall provide the Enhancement
services set forth in Section 5 of the Plan based on a time
and materials basis. OptiMark and XXX will negotiate the rates
for OptiMark's development of the Enhancements on a per
project basis.
Notwithstanding the foregoing, OptiMark shall provide the
Enhancement services for Phases 1.1 and 1.2 (as previously
defined by XXX and OptiMark and as will be set forth in
Schedules A-3 and A-4 of the Agreement, respectively) on a
time and materials basis according to the following hourly
rates:
PHASE 1.1
---------
XXX Project Manager -- $ * per hour
Product Support Manager -- $ * per hour
Developer (OptiMark employee) -- $ * per hour
Developer (hired consultant) -- *
QA -- $ * per hour
Operations -- $ * per hour
Project Administrator -- $ * per hour
PHASE 1.2
---------
XXX Project Manager -- $ * per hour
Product Support Manager -- $ * per hour
Developer (OptiMark employee) -- $ * per hour
Developer (hired consultant) -- -- *
QA -- $ * per hour
Operations -- $ * per hour
Project Administrator -- $ * per hour
--------------------------
* This confidential portion has been omitted and filed separately with the
Commission.
55
SCHEDULE D
GUIDELINES FOR CALCULATING OPTIMARK'S
FEES AND EXPENSES ON A TIME AND MATERIALS BASIS
OptiMark will invoice XXX for actual time worked for each individual working the
XXX project. The daily rate charged for each individual will include a variable
component for their compensation and related costs, and a fixed component for
both direct overhead and indirect overhead. These rates may be changed by
OptiMark from time to time as business conditions dictate. OptiMark will also
invoice direct out-of-pocket expenses (for example, travel to Japan, equipment,
etc.).
The following items represent common areas covered within the scope of the XXX
project that are to be billed by OptiMark, Inc. (OI) directly to the joint
venture, Japan OptiMark Systems (XXX), on a monthly basis:
1. SERVICES RENDERED BY OPTIMARK EMPLOYEES FOR THE DEVELOPMENT AND
MAINTENANCE OF THE XXX TRADING SYSTEM (THE PROJECT). *
2. SERVICES RENDERED BY OPTIMARK SUBCONTRACTED CONSULTANTS FOR THE
DEVELOPMENT AND MAINTENANCE OF THE PROJECT. *
-----------------------
* This confidential portion has been omitted and filed separately with the
Commission.
56
3. DIRECT EXPENSES INCURRED BY OPTIMARK EMPLOYEES OR ITS DESIGNEES. *
---------------------
* This confidential portion has been omitted and filed separately with the
Commission.
57
SCHEDULE E
FORM OF ESCROW AGREEMENT
(OPTIMARK'S DEPOSIT OF SOURCE CODE)
This Agreement is effective as of __________, 2000 among Data Securities
International, Inc. ("DSI"), having an office on 0000 Xxxxxxxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX 00000, OptiMark, Inc., a corporation organized and existing
pursuant to the laws of Delaware, with principal offices at 10 Exchange Place
Center, 24th Floor, Jersey City, New Jersey 07302 USA ("Depositor"), and Japan
OptiMark Systems, Inc., a corporation organized and existing pursuant to the
laws of Japan, with principal offices at 9-5, Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxx 000-0000 Xxxxx ("Preferred Beneficiary"), who collectively may be referred
to in this Agreement as "the parties."
WHEREAS, Depositor and Preferred Beneficiary have entered into a
Development and Operations Agreement regarding certain proprietary technology of
Depositor (referred to in this Agreement as "the Basic Agreement").
WHEREAS, Depositor desires to avoid disclosure of its proprietary
technology except under certain limited circumstances.
WHEREAS, the availability of the proprietary technology of Depositor is
critical to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under certain
limited circumstances.
WHEREAS, Depositor and Preferred Beneficiary desire to establish an
escrow with DSI to provide for the retention, administration, and controlled
access of certain proprietary technology materials of Depositor.
WHEREAS, the parties desire this Agreement to be supplementary to the
Basic Agreement pursuant to 00 Xxxxxx Xxxxxx [Bankruptcy] Code, Section 365(n).
SECTION 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, Depositor shall deliver to DSI the proprietary information and
other materials ("deposit materials") required to be deposited by the
Basic Agreement or, if the Basic Agreement does not identify the
materials to be deposited with DSI, then such materials will be
identified on an Exhibit A. If Exhibit A is applicable, it is to be
prepared and signed by Depositor and Preferred Beneficiary. DSI shall
have no obligation with respect to the preparation, signing or delivery
of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the deposit
materials to DSI, Depositor shall conspicuously label for
identification each document, magnetic tape, disk, or other tangible
media upon which the deposit materials are written or stored.
Additionally, Depositor shall complete Exhibit B to this Agreement by
listing each such tangible media by the item label description, the
type of media and the quantity. Exhibit B must be signed by Depositor
and delivered to DSI with the deposit materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no
obligation with respect to this Agreement, except the obligation to
notify the parties regarding the status of the deposit account as
required in Section 2.2 below.
1.3 Deposit Inspection. When DSI receives the deposit materials and Exhibit
B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the deposit materials to the
item descriptions and quantity listed on Exhibit B. In addition to the
deposit inspection, Preferred Beneficiary may elect to cause a
verification of the deposit materials in accordance with Section 1.6
below.
58
1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, DSI will date and sign Exhibit
B and mail a copy thereof to Depositor and Preferred Beneficiary. If
DSI determines that the labeling does not match the item descriptions
or quantity on Exhibit B, DSI will (a) note the discrepancies in
writing on Exhibit B; (b) date and sign Exhibit B with the exceptions
noted; and (c) provide a copy of Exhibit B to Depositor and Preferred
Beneficiary. DSI's acceptance of the deposit occurs upon the signing of
Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred
Beneficiary is Preferred Beneficiary's notice that the deposit
materials have been received and accepted by DSI.
1.5 Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the deposit materials
deposited with DSI;
b. With respect to all of the deposit materials, Depositor has
the right and authority to grant to DSI and Preferred
Beneficiary the rights as provided in this Agreement;
c. The deposit materials are not subject to any lien or other
encumbrance;
d. The deposit materials consist of the proprietary information
and other materials identified either in the Basic Agreement
or Exhibit A, as the case may be; and
e. The deposit materials are readable and usable in their current
form or, if the deposit materials are encrypted, the
decryption tools and decryption keys have also been deposited.
1.6 Verification. Preferred Beneficiary shall have the right, at Preferred
Beneficiary's expense, to cause a verification of any deposit
materials. A verification determines, in different levels of detail,
the accuracy, completeness, sufficiency and quality of the deposit
materials. If a verification is elected after the deposit materials
have been delivered to DSI, then only DSI, or at DSI's election an
independent person or company selected and supervised by DSI, may
perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the Basic Agreement,
Depositor shall update the deposit materials within thirty (30) days of
each release of a new version of the product(s) are subject to the
Basic Agreement. Such updates will be added to the existing deposit.
All deposit updates shall be listed on a new Exhibit B and the new
Exhibit B shall be signed by Depositor. Each Exhibit B will be held and
maintained separately within the escrow account. An independent record
will be created which will document the activity for each Exhibit B.
The processing of all deposit updates shall be in accordance with
Sections 1.2 through 1.6 above. All references in this Agreement to the
deposit materials shall include the initial deposit materials and any
updates.
1.8 Removal of Deposit Materials. The deposit materials may be removed
and/or exchanged only on written instructions signed by Depositor and
Preferred Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the deposit materials in a secure,
environmentally safe, locked facility which is accessible only to
authorized representatives of DSI. DSI shall have the obligation to
reasonably protect the confidentiality of the deposit materials. Except
as provided in this Agreement, DSI shall not disclose, transfer, make
available, or use the deposit materials. DSI shall not disclose the
content of this Agreement to any Third Party. If DSI receives a
subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the deposit materials, DSI
will immediately notify the parties to this Agreement. It shall be the
responsibility of Depositor and/or Preferred Beneficiary to challenge
any such order; provided, however, that DSI does not waive its rights
to present its position with respect to any such order. DSI will not be
59
required to disobey any court or other judicial tribunal order. (See
Section 7.5 below for notices of requested orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may
provide copies of the account history pertaining to this Agreement upon
the request of any Party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and
Preferred Beneficiary shall each have the right to inspect the written
records of DSI pertaining to this Agreement. Any inspection shall be
held during normal business hours and following reasonable prior
notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 TITLE TO MEDIA. Depositor hereby transfers to DSI the title to the
media upon which the proprietary information and materials are written
or stored. However, this transfer does not include the ownership of the
proprietary information and materials contained on the media such as
any copyright, trade secret, patent or other intellectual property
rights.
3.2 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
deposit materials as reasonably necessary to perform its duties under
this Agreement. DSI shall copy all copyright, nondisclosure, and other
proprietary notices and titles contained on the deposit materials onto
any copies made by DSI. With all deposit materials submitted to DSI,
Depositor shall provide any and all instructions as may be necessary to
duplicate the deposit materials including but not limited to the
hardware and/or software needed.
3.3 RIGHT TO TRANSFER UPON RELEASE. Depositor hereby grants to DSI the
right to transfer deposit materials to Preferred Beneficiary upon any
release of the deposit materials for use by Preferred Beneficiary in
accordance with Section 4.5. Except upon such a release or as otherwise
provided in this Agreement, DSI shall not transfer the deposit
materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Conditions"
shall mean a material breach by Depositor of its maintenance
obligations set forth in SCHEDULE C of the Basic Agreement, which
breach Depositor fails to cure within a reasonable time.
4.2 Filing For Release. If Preferred Beneficiary believes in good faith
that a Release Condition has occurred, Preferred Beneficiary may
provide to DSI written notice of the occurrence of the Release
Condition and a request for the release of the deposit materials. Upon
receipt of such notice, DSI shall provide a copy of the notice to
Depositor, by certified mail, return receipt requested, or by
commercial express mail.
4.3 Contrary Instructions. From the date Depositor receives DSI's notice
requesting release of the deposit materials, Depositor shall have ten
business days to deliver to DSI Contrary Instructions. "Contrary
Instructions" shall mean the written representation by Depositor that a
Release Condition has not occurred or has been cured. Upon receipt of
Contrary Instructions, DSI shall send a copy to Preferred Beneficiary
by certified mail, return receipt requested, or by commercial express
mail. Additionally, DSI shall notify both Depositor and Preferred
Beneficiary that there is a dispute to be resolved pursuant to the
Dispute Resolution section (Section 7.3) of this Agreement. Subject to
Section 5.2, DSI will continue to store the deposit materials without
release pending (a) joint instructions from Depositor and Preferred
Beneficiary; (b) resolution pursuant to the Dispute Resolution
provisions; or (c) order of a court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
the Depositor, DSI is authorized to release the deposit materials to
the Preferred
60
Beneficiary or, if more than one beneficiary is registered to the
deposit, to release a copy of the deposit materials to the Preferred
Beneficiary. However, DSI is entitled to receive any fees due DSI
before making the release. This Agreement will terminate upon the
release of all of the deposit materials held by DSI.
4.5 Right to Use Following Release. Unless otherwise provided in the Basic
Agreement, upon release of the deposit materials in accordance with
this Article 4, Preferred Beneficiary shall have the right to use the
deposit materials for the sole purpose of continuing the benefits
afforded to Preferred Beneficiary by the Basic Agreement. Preferred
Beneficiary shall be obligated to maintain the confidentiality of the
released deposit materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly
instruct DSI in writing that the Agreement is terminated; or (b) the
Agreement is terminated by DSI for nonpayment in accordance with
Section 5.2.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to all parties
to this Agreement. Any Party to this Agreement shall have the right to
make the payment to DSI to cure the default. If the past due payment is
not received in full by DSI within one month of the date of such
notice, then, DSI shall have the right to terminate this Agreement at
any time thereafter by sending written notice of termination to all
parties. DSI shall have no obligation to take any action under this
Agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Upon termination of
this Agreement by joint instruction of Depositor and Preferred
Beneficiary, DSI shall destroy, return, or otherwise deliver the
deposit materials in accordance with such instructions. Upon
termination for nonpayment, DSI may, at its sole discretion, destroy
the deposit materials or return them to Depositor. DSI shall have no
obligation to return or destroy the deposit materials if the deposit
materials are subject to another escrow agreement with DSI.
5.4 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the deposit
materials;
c. The rights granted in the sections entitled Right to Transfer
Upon Release (Section 3.3) and Right to Use Following Release
(Section 4.5), if a release of the deposit materials has
occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they
survive the termination or expiration of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 FEE SCHEDULE. DSI is entitled to be paid its standard fees and
expenses applicable to the services provided. DSI shall notify
the Party responsible for payment of DSI's fees at least 90
days prior to any increase in fees. For any service not listed
on DSI's standard fee schedule, DSI will provide a quote prior
to rendering the service, if requested.
61
6.2 PAYMENT TERMS. DSI shall not be required to perform any
service unless the payment for such service and any
outstanding balances owed to DSI are paid in full. All other
fees are due upon receipt of invoice. If invoiced fees are not
paid, DSI may terminate this Agreement in accordance with
Section 5.2. Late fees on past due amounts shall accrue at the
rate of one and one-half percent per month (18% per annum)
from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon
any instruction, instrument, or signature reasonably believed
by DSI to be genuine. DSI may assume that any employee of a
Party to this Agreement who gives any written notice, request,
or instruction has the authority to do so. DSI shall not be
responsible for failure to act as a result of causes beyond
the reasonable control of DSI.
7.2 INDEMNIFICATION. DSI shall be responsible to perform its
obligations under this Agreement and to act in a reasonable
and prudent manner with regard to this escrow arrangement.
Provided DSI has acted in the manner stated in the preceding
sentence, Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all
claims, actions, damages, arbitration fees and expenses,
costs, attorney's fees and other liabilities incurred by DSI
relating in any way to this escrow arrangement.
7.3 DISPUTE RESOLUTION. Any dispute relating to or arising from
this Agreement shall be resolved by arbitration under the
Commercial Rules of the American Arbitration Association.
Unless otherwise agreed by Depositor and Preferred
Beneficiary, arbitration will take place in San Diego,
California, USA. Any court having jurisdiction over the matter
may enter judgment on the award of the arbitrator(s). Service
of a petition to confirm the arbitration award may be made by
First Class mail or by commercial express mail, to the
attorney for the Party or, if unrepresented, to the Party at
the last known business address.
7.4 CONTROLLING LAW. This Agreement is to be governed and
construed in accordance with the laws of the State of
California, without regard to its conflict of law provisions.
7.5 NOTICE OF REQUESTED ORDER. If any Party intends to obtain an
order from the arbitrator or any court of competent
jurisdiction which may direct DSI to take, or refrain from
taking any action, that Party shall:
a. Give DSI at least two business days' prior notice of
the hearing;
b. Include in any such order that, as a precondition to
DSI's obligation, DSI be paid in full for any past
due fees and be paid for the reasonable value of the
services to be rendered pursuant to such order; and
c. Ensure that DSI not be required to deliver the
original (as opposed to a copy) of the deposit
materials if DSI may need to retain the original in
its possession to fulfill any of its other escrow
duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement, which includes the
Acceptance Form and the Exhibits described herein, embodies
the entire understanding among the parties with respect to its
subject matter and supersedes all previous communications,
representations or understandings, either oral or written. No
amendment or modification of this Agreement shall be valid or
binding unless signed by all the parties hereto, except that
Exhibit A need not be signed by DSI, Exhibit B need not be
signed by Preferred Beneficiary and Exhibit C need not be
signed.
62
8.2 NOTICES. All notices, invoices, payments, deposits and other
documents and communications shall be given to the parties at
the addresses specified in the attached Exhibit C. It shall be
the responsibility of the parties to notify each other as
provided in this Section in the event of a change of address.
The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in
this Agreement, all documents and communications may be
delivered by First Class mail.
8.3 SEVERABILITY. In the event any provision of this Agreement is
found to be invalid, voidable or unenforceable, the parties
agree that unless it materially affects the entire intent and
purpose of this Agreement, such invalidity, voidability or
unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the
provision in question shall be deemed to be replaced with a
valid and enforceable provision most closely reflecting the
intent and purpose of the original provision.
8.4 SUCCESSORS. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the
parties. However, DSI shall have no obligation in performing
this Agreement to recognize any successor or assign of
Depositor or Preferred Beneficiary unless DSI receives clear,
authoritative and conclusive written evidence of the change of
parties.
OptiMark, Inc. Japan OptiMark Systems, Inc.
("Depositor") ("Preferred Beneficiary")
By:___________________________________ By:____________________________________
Name: Name:
Title: Title:
Date: Date:
Date Securities International, Inc.
("DSI")
By:___________________________________
Name:
Title:
Date:
63
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ______________________
Depositor represents to Preferred Beneficiary that deposit materials delivered
to DSI shall consist of the following:
OptiMark, Inc. Japan OptiMark Systems, Inc.
("Depositor") ("Preferred Beneficiary")
By:_________________________________ By:_________________________________
Name: Name:
Title: Title:
Date: Date:
64
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name OptiMark, Inc.
--------------
Account Number ______________________________
PRODUCT DESCRIPTION:
Product Name__________________________________Version___________________________
Operating System________________________________________________________________
Hardware Platform:______________________________________________________________
DEPOSIT COPYING INFORMATION:
Hardware required:______________________________________________________________
Software required:______________________________________________________________
DEPOSIT MATERIAL DESCRIPTION:
Qty Media Type & Size Label Description of Each Separate Item
(excluding documentation)
______ Disk 3.5" or ____
______ DAT tape ____mm
______ CD-ROM
______ Data cartridge tape ____
______ TK 70 or ____ tape
______ Magnetic tape ____
______ Documentation
______ Other ______________________
I certify for Depositor that the above DSI has inspected and accepted
described materials have been the above deposit materials
transmitted to DSI: (any exceptions are noted above):
Signature___________________________ Signature_________________________________
Print Name__________________________ Print Name_______________________________
Date________________________________ Date Accepted____________________________
Exhibit B#__________________________
Send materials to: DSI, 0000 Xxxxxxxxxx Xx. #000, Xxx Xxxxx, XX 00000
65
EXHIBIT C
DESIGNATED CONTACT
Account Number ______________________
Notices, deposit material returns and communications to Invoices to Depositor should be
Depositor should addressed to:
be addressed to:
OptiMark, Inc. Same: X
00 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx ________________________________________________
Xxxxxx Xxxx, Xxx Xxxxxx 00000 XXX ________________________________________________
________________________________________________
Designated Contact: ________________________________________________
Contact:________________________________________
Telephone: (201) 536- ________________________________________________
Facsimile: (201) ________________________________________________
Notices, and communications to Invoices to Preferred Beneficiary
Preferred Beneficiary should be addressed to: should be addressed to:
Japan OptiMark Systems, Inc Same: X
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 000-0000 Xxxxx Contact:_________________________________________
_________________________________________________
Designated Contact: _________________________________________________
Telephone:
Facsimile:
Requests from Depositor or Preferred Beneficiary to change the designated
contact should be given in writing by the designated contact or an authorized
employee of Depositor or Preferred Beneficiary.
Contracts, deposit materials and notices to DSI Invoice inquiries and fee remittances to DSI should
should be addressed to: be addressed to:
DSI DSI
Contract Administration Accounts Receivable
Xxxxx 000 Xxxxx 0000
0000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 (000) 000-0000
Facsimile: (000) 000-0000 (000) 000-0000
Date:_________________________________
66
SCHEDULE F
1. MONTHLY EQUIPMENT USAGE OF OPTIMARK PROPERTY FOR THE DEVELOPMENT AND
MAINTENANCE OF THE PROJECT. *
2. EQUIPMENT, SOFTWARE, OR LICENSES ACQUIRED FOR THE DEVELOPMENT AND
MAINTENANCE OF THE PROJECT. *
-----------------
* This confidential portion has been omitted and filed separately with the
Commission.
67
[OPTIMARK LOGO]
October 23, 2000
Xxxxxxxx Xxxxxxxx, President
Japan OptiMark Systems, Inc.
Across Shinkawa Xxxxxxxx, Xxxxx 0X
0-00-00 Xxxxxxxx, Xxxx-Xx
Xxxxx, 000-0000 XXXXX
RE: OPTIMARK, INC. / JAPAN OPTIMARK SYSTEMS, INC.
Dear Nonomura san:
OptiMark, Inc. ("OptiMark") and Japan OptiMark Systems, Inc. ("XXX") hereby
agree to amend the "Development, Subcontract, And Operations Agreement"
("Agreement"), effective as of May 17, 1999, by adding the following new Section
10.4:
"10.4 XXX agrees that all software of Sybase, Inc. that (1)
OptiMark has obtained for the benefit of XXX under Section
10.2 hereof and (2) has been or will be provided to XXX
hereunder will be used and/or handled in accordance with the
"Mandatory Terms pf Sublicense Agreements" attached hereto as
Schedule G," wherein XXX is referred to the "End User" and
OptiMark as the "Partner."
Your signature below will indicate your agreement to the foregoing.
Sincerely,
/s/ Kiyoshi Niki
Kiyoshi Niki
President, Japan
AGREED as of the 17th day of May 1999:
/s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx, President
68
SCHEDULE G
EXHIBIT B
MANDATORY TERMS OF SUBLICENSE AGREEMENT
All Sublicense Agreements for the ADL Programs shall include substantially the
following provisions:
1. The End User is only granted a non-exclusive, non-transferable right
to use the Application and ADL Programs for its own internal business purposes
and the End User is prohibited from using such ADL Programs for application
development purposes or otherwise outside the scope defined in Section 1.2 of
this Agreement.
2. The End User's usage of the Application and ADL Programs shall be
restricted to the licensed Servers and Seats or Concurrent Users consistent with
the pricing terms of this Agreement. The End User shall be prohibited from (i)
sublicensing, timesharing, rental, facility management, or service bureau usage
of the ADL Programs; and (ii) permit third parties to remotely access and use
the Application and Sybase Programs over the internet, unless Partner has paid
Sybase the applicable fees for any such usage of the Programs. "Service bureau"
shall mean an arrangement pursuant to which (i) third parties are permitted to
access and use the ADL Programs directly or indirectly by any means to process
their own data; or (ii) the End User uses the Programs to process the data of
any third party.*
3. Partner's licensor (Sybase) retains title to the Programs, and all
copies thereof, and associated intellectual property rights therein. The End
User may not copy the Programs, except for inactive backup and archival purposes
only, and must include on all copies of the Program all copyright, government
restricted rights and other proprietary notices or legends included on the
Program when it was shipped to such licensee.
4. Partner and its licensors (including Sybase) shall not be
responsible for any indirect, incidental, special and consequential damages.
5. Only object code versions of the Programs are licensed to the End
User and reverse engineering, disassembly or decompilation to derive source code
shall be prohibited (except to the extent expressly allowed under applicable
law).
6. The End User must agree to comply with all export and re-export
restrictions and regulations ("Export Restrictions") imposed by the government
of the United States. If any Program license is provided to U.S. government
licensee use, duplication or disclosure of the software and documentation by the
U.S. Government shall be provided subject to terms and conditions consistent
with these Mandatory Terms and any applicable FAR provisions, for example, FAR
52.227-19.
---------------
* Notwithstanding the previous sentences, For Partner's trade order
matching system Application only, an End User may act as a service
bureau, which may include access by End User's customers over the
internet, provided each user is counted and paid for.
69
7. Although copyrighted, the Application (and ADL Programs) is
unpublished and contains proprietary and confidential information of Partner and
its licensor (Sybase). The End User will agree to maintain the Programs in
confidence and shall protect the Programs with at least the same degree of care
with which it protects its own similar confidential information.
8. Upon termination of the license for the Program, the End User shall
be required to destroy or return all copies of the Program.
9. Partner shall have the right to conduct and/or direct an independent
accounting firm to conduct, during normal business hours, an audit of the
appropriate records of the End User to verify the number of copies of the
Program in Use and the computer systems and the number of Seats or Concurrent
Users licensed for or using the Programs.
70
SECOND AMENDMENT TO THE DEVELOPMENT,
SUBCONTRACT, AND OPERATIONS AGREEMENT
This "Second Amendment To The Development, Subcontract, And Operations
Agreement" ("Amendment"), effective as of January ___, 2001, by and between
OptiMark, Inc. ("OptiMark") and Japan OptiMark Systems, Inc. ("XXX") amends that
certain "Development, Subcontract, And Operations Agreement," effective as of
May 17, 1999, by and among OptiMark and XXX (the "Agreement") as set forth
below.
1. SECTION 17.1 is replaced in its entirety as follows:
17.1 SOURCE CODE ESCROW/DELIVERY. Within thirty (30) Days after
Users have access to, and may trade OSE Securities through,
Phase 1.2 of the New System, OptiMark shall deliver into escrow,
pursuant to escrow agreements substantially in the form of the
escrow agreement attached hereto as SCHEDULE E-1 hereto ("Escrow
Agreement"), the Source Code for each Deliverable for which it
is responsible for developing hereunder, and all tools,
compilers, linkers, and other software and/or documentation
reasonably necessary to generate the Object code corresponding
to the Source Code. The Parties shall execute the Escrow
Agreement prior to the date of such delivery. XXX shall be
responsible for all fees and expenses incurred by either Party
under the Escrow Agreement. Within sixty (60) Days after the
Operational Commencement Date, XXX shall deliver to OptiMark the
Source Code for each Deliverable for which it is responsible for
developing hereunder, and all tools, compilers, linkers, and
other software and/or documentation reasonably necessary to
generate the Object Code corresponding to the Source Code.
2. The provisions of Article 19 are hereby incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized representatives as of the date
first written above.
Japan OptiMark Systems, Inc. ("XXX") OptiMark, Inc. ("OptiMark")
By: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Kiyoshi Niki
--------------------- --------------------
Name: Xxxxxxxx Xxxxxxxx Name: Kiyoshi Niki
Title: President Title: President, Japan
Date: January 15, 2001 Date: January 15, 2001
1 of 1
71
THIRD AMENDMENT TO THE DEVELOPMENT,
SUBCONTRACT, AND OPERATIONS AGREEMENT
This "Third Amendment To The Development, Subcontract, And Operations Agreement"
("Amendment"), effective as of December 1, 2000, by and between OptiMark, Inc.
("OptiMark") and Japan OptiMark Systems, Inc. ("XXX") amends that certain
"Development, Subcontract, And Operations Agreement," effective as of May 17,
1999, by and among OptiMark and XXX (the "Agreement") as set forth below.
1. SECTION 3.1 is replaced in its entirety as follows:
3.1 SPECIFICATIONS. During the Specifications Phase, the Parties
shall develop complete and detailed functional and operational
specifications ("Specifications") for the New System. The
Specifications are attached hereto as SCHEDULE A, which
comprises SCHEDULES A-1 and A-2. The parties may amend SCHEDULE
A from time to time to account for new functionality that is to
be made part of the New System. The Specifications shall
allocate the responsibilities of each Party, including those
generally set forth in Sections 2.3 and 2.4, and shall
incorporate requirements and time schedules stated in this
Agreement.
2. SECTION 3.2 is replaced in its entirety as follows:
3.2 ACCEPTANCE OF SPECIFICATIONS. The Specifications that the
Parties have agreed to and accepted as of the Effective Date are
attached hereto as SCHEDULE A-1. The Parties shall indicate
their acceptance of the additional Specifications by executing
the first page of SCHEDULE A-2, and/or other schedules that form
part of SCHEDULE A, at which time such additional and other
Specifications of SCHEDULE A shall be deemed "Final
Specifications." If a Party desires to modify the Final
Specifications, the Parties shall follow the procedures in
Section 3.4 below.
3. SECTION 3.4(a) is replaced in its entirety as follows:
3.4 MODIFICATIONS. (a) Prior to the Operational Commencement Date,
or such other applicable date (for Phases 1.1 and later) that
Users shall have access to, and may commence trading of OSE
Securities through, the New System that incorporates the
functionality of a particular Phase, a Party may request
modifications to the Final Specifications. Such a request shall
be presented in detail to the other Party in writing. The
request shall indicate, at a minimum, whether the proposed
modifications, in the reasonable and good faith judgment of the
requesting Party, would result in an extension of, or change to,
the Installation Schedule, the Milestone Dates, or the cost of
development or operation of the New System.
4. The Parties agree to develop and launch Phases 1.1 and 1.2 of the
New System. SCHEDULE A (the Specifications) is amended accordingly
by appending thereto SCHEDULE A-3 and SCHEDULE A-4, as set forth in
Exhibit 1 hereto.
5. The Parties have agreed to a timetable for the development and
launch Phases 1.1 and 1.2 of the New System. SCHEDULE B
(Deliverable/Milestone Dates) is
1 of 1
72
amended accordingly by appending thereto SCHEDULE B-1, as set forth in
Exhibit 2 hereto.
6. The provisions of Article 19 are hereby incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized representatives as of the date
first written above.
Japan OptiMark Systems, Inc. ("XXX") OptiMark, Inc. ("OptiMark")
By: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Kiyoshi Niki
------------------------- ----------------------------
Name: Xxxxxxxx Xxxxxxxx Name: Kiyoshi Niki
Title: President Title: President, Japan
Date: December 1, 2000 Date: December 1, 2000
2 of 2
73
EXHIBIT 1
SCHEDULE A-3 (TO THE DEVELOPMENT,
SUBCONTRACT, AND OPERATIONS AGREEMENT)
*
* This confidential portion has been omitted and filed separately with the
Commission.
3 of 3
74
SCHEDULE A-4 (TO THE DEVELOPMENT,
SUBCONTRACT, AND OPERATIONS AGREEMENT)
*
* This confidential portion has been omitted and filed separately with the
Commission.
4 of 4
75
EXHIBIT 2
SCHEDULE B-1 (TO THE DEVELOPMENT,
SUBCONTRACT, AND OPERATIONS AGREEMENT)
MILESTONE DATES
MILESTONE/DELIVERABLE MILESTONE DATE
--------------------- --------------
OptiMark to deliver Phase 1.1 of the OptiMark Software December 4, 2000
from OptiMark development to OptiMark QA (Completed)
OptiMark to deliver Phase 1.1 of the OptiMark Software December 18, 2000
from OptiMark QA to XXX QA (Completed)
OptiMark to provide to XXX new skeleton for Phase 1.2 of January 10, 2001
the OptiMark Software (Completed)
XXX to commence connectivity testing for Phase 1.2 of the January 23, 2001
OptiMark Software
OptiMark to deploy Phase 1.2 of the OptiMark Software to January 22, 2001
development environment
OptiMark to deliver Phase 1.2 of the OptiMark Software February 2, 2001
from OptiMark development to OptiMark QA
"Live" date for Phase 1.1 of the New System February 15, 2001
OptiMark to deliver Phase 1.2 of the OptiMark Software to February 8, 2001
XXX QA
"Live" date for Phase 1.2 of the New System March 15, 2001
5 of 5
