EXHIBIT 10.1
AGREEMENT
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THIS AGREEMENT ("Agreement") is made as of October 5, 1999 (the "Effective
Date"), by and between The Chase Manhattan Bank, a New York Corporation, and CB
Capital Investors, LLC, a Delaware Limited Liability Company, each having a
principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (collectively
"Chase") and Xxxxxxxx.xxx, Inc., organized under the laws of the State of
Nevada, having a principal place of business at 0000 Xxxxxxxxxx Xx., Xxxxx 000,
Xxx Xxxx, Xxxxxxxxxx, 00000 ("DataLink").
RECITALS
X. Xxxxx is the global leader in providing financial information and
transaction services.
B. DATALINK has developed and owns all rights to: 1) a proprietary information
processing system that uses intelligent agent technologies to filter and deliver
Information Services, including personal information and third party
information, through wireless and other communications networks and technology
at event driven, prearranged times or on demand to text-displaying wireless
communications devices ("Wireless Technology" or "Wireless Infrastructure"); and
2) proprietary software products and Information Services ("Services" or
"Products" or "Systems"), one of which is a professional financial product
marketed under the name "Global Market Pro".
X. Xxxxx and DataLink have worked together and have expressed an interest in
mutually cooperating toward, among other things, the development and production
of enhancements to the Global Market Pro system by means of tracking exchange
and non-exchange traded data and news (the "System").
NOW THEREFORE, in consideration of the mutual covenants set forth in the
Warrant issued by Datalink to Chase concurrently herewith (the "Warrant") and
dependent provisions hereinafter set forth, the parties, intending to be legally
bound, agree as follows:
1. The foregoing RECITALS are hereby incorporated by reference and made a part
of this Agreement as if they were fully set forth in this part of this
Agreement.
2. All of Chase's patents, copyrights, trade secrets and other intellectual
property rights that were developed by Chase prior to this Agreement or
independent of the Agreement shall be owned by Chase and DataLink shall
have no ownership or use rights therein except as set forth in this
Agreement.
3. All of Datalink's patents, copyrights, trade secrets and other intellectual
property rights that were developed by DataLink prior to this Agreement or
independent of the Agreement shall be owned by DataLink and Chase shall
have no ownership or use rights therein except as set forth in this
Agreement and the license agreement dated June 9, 2000 (Chase Agreement No.
55210).
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4. For purposes of this Agreement, "Work Product" shall mean all materials or
other work product created or developed under this Agreement in connection
with the System by DataLink and/or Chase (tangible, recorded or otherwise,
and without regard to the form of recordation or state of completion);
including, without limitation, working papers, narrative descriptions,
reports, data, tapes, diskettes, software and all materials of similar
character; provided however that Work Product shall not include any
Underlying Chase Technology, as defined below. For purposes of this
Agreement "Underlying Chase Technology" shall mean Chase's proprietary
technology, processes and methodologies, including Chase's software tools,
hardware designs, frameworks, algorithms, software code (in source and
object forms), user interface designs, models, architecture, class
libraries, objects and documentation (both printed and electronic), and any
related intellectual property rights throughout the world existing at the
Effective Date, and also including any derivatives, improvements,
enhancements or extensions of Underlying Chase Technology conceived,
reduced to practice, or developed under this Agreement that are not
uniquely applicable to the System or that have general applicability in the
art.
5. Nothing in this Agreement precludes either party from using General
Knowledge. General Knowledge means ideas, concepts, know-how or techniques
related to the System that are retained in the unaided memories of either
party's employees who have had access to information consistent with terms
of this Agreement. An employee's memory is unaided if the employee has not
intentionally memorized the information for the purpose of retaining and
subsequently using or disclosing it. General Knowledge does not include
trade secrets. All General Knowledge is subject to all-valid patents and
copyrights. Nothing in this provision shall give either party the right to
disclose, publish or disseminate the source of General Knowledge or the
specific financial, statistical or personal data or business plans of the
other party. For the purposes of this Agreement, General Knowledge also
shall include, without limitation, information publicly known or that could
reasonably have been acquired in similar work performed for a third party.
6. Subject to Chase's rights in the Underlying Chase Technology, all Work
Product, is, or shall be, upon creation, the exclusive property of
DataLink. Subject to the terms and conditions of this Agreement, Chase
grants to DataLink a non-exclusive, irrevocable, transferable, royalty-
free, perpetual, sublicensable, worldwide license to use, modify, enhance
and copy the Underlying Chase Technology to the extent (if at all) it is
incorporated into the Work Product in order to use the Work Product .
7. Subject to Chase's rights in the Underlying Chase Technology, all
copyrights, patents and trade secret rights therein, and the rights to
register or apply therefor, in or relating to Work Product, shall likewise
be the exclusive property of DataLink. Any part of the Work Product created
in whole or in part by Chase's employees and comprising copyrightable
subject matter is agreed to be "work made for hire" pursuant to the
Copyright Act of 1976 as from time to time amended. To the extent that any
Work Product is other than a work made for hire, Chase hereby makes a
continuing assignment of any and all part of the Work Product created by
Chase's employees to DataLink. Chase and Chase's employees shall, promptly
at the request of DataLink, execute any and all documentation reasonably
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requested by Datalink to evidence such transfer including, without
limitation, specific assignments.
8. Xxxxx Xxxxxxx, a Xxxxx employee, is one of the inventors in the provisional
patent application entitled Global Market Professional, filed on June 16,
2000 ("the System Patent"). DataLink shall file all necessary papers with
the US Patent and Trademark to name Xx. Xxxxxxx as an inventor on the
System Patent. Xx. Xxxxxxx shall execute the assignment in the form
attached hereto as Exhibit A upon the Effective Date of this Agreement and
any other document necessary to confirm assignment of rights to DataLink in
connection with the System Patent.
9. DataLink covenants not to xxx Xxxxx, its parent corporation The Chase
Manhattan Corporation, its subsidiaries, affiliates, employees, officers,
and directors, anywhere in connection with the development, use and
deployment of Chase's web to wireless information products and services,
which actions constitute, or may constitute, infringement or other
violation of any patent rights of DataLink.
10. (a) Confidential Information. Each party (the "Receiving Party")
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acknowledges that by reason of its relationship to the other party (the
"Disclosing Party") hereunder, the Receiving Party will have access to
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certain information and materials, including the terms of this Agreement,
concerning the Disclosing Party's business, plans, technology, products and
services that are confidential and of substantial value to the Disclosing
Party, which value would be impaired if such information were disclosed to
third parties ("Confidential Information"). The Receiving Party agrees that
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it shall not use in any way for own account or the account of any third
party, nor disclose to any third party, any such Confidential Information
revealed to it by the Disclosing Party, except as expressly otherwise
provided in this Agreement. The Receiving Party shall take every reasonable
precaution to protect the confidentiality of Confidential Information. The
Receiving Party shall not publish any technical description of the
Disclosing Party's Confidential Information beyond any descriptions
published by the Disclosing Party. In the event of expiration or
termination of this Agreement, there shall be no use or disclosure by the
Receiving Party of any Confidential Information of the Disclosing Party,
and the Receiving Party shall not develop any software, devices, components
or assemblies utilizing the Disclosing Party's Confidential Information.
(b) Exclusions. Confidential Information does not include any information
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that the Receiving Party can demonstrate by written records: (a) was known
to the Receiving Party prior to its disclosure hereunder by the Disclosing
Party; (b) is independently developed by the Receiving Party; (c) is or
becomes publicly known through no wrongful act of the Receiving Party; (d)
has been rightfully received from a third party whom the Receiving Party
has reasonable grounds to believe is authorized to make such disclosure
without restriction; (e) has been approved for public release by the
Disclosing Party's prior written authorization; or (f) must be produced or
disclosed pursuant to applicable law, regulation or court order, provided
that the Receiving Party provides prompt advance notice thereof to enable
the Disclosing Party to seek a protective order or otherwise prevent such
disclosure.
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11. Governing Law. The corporate laws of the State of Nevada shall govern all
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issues concerning the relative rights of the Company and the Registered
Owners as securities holders. All other issues shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California without regard to the principles of conflicts of law thereof.
12. Amendment and Waiver. This Agreement shall not be amended or modified, or
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any of the provisions hereof waived, except with the written consent of
Chase.
13. Entire Agreement and Waiver. This Agreement and the Warrant contains the
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entire understanding among the parties and supersedes any prior
understanding or written or oral agreements among them, or any of them,
respecting the subject matter contained herein. No waiver of any provisions
hereof shall be effective unless contained in a writing signed by the party
to be bound thereby.
14. Counterparts. This Agreement may be executed in multiple counterparts,
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each of which will be an original, but all of which will constitute one
instrument.
15. Severability. This Agreement is intended to be performed in accordance
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with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement or the
application thereof to any party or circumstance is, for any reason and to
any extent, invalid or unenforceable, the remainder of this Agreement and
the application of such provision to other parties or circumstances will
not be affected thereby, but rather will be enforced to the greatest extent
permitted by law.
16. Headings. The Article and Section titles used in this Agreement are solely
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for convenience and neither modify nor limit the provisions of this
Agreement.
17. Survival of Agreement. Notwithstanding anything to the contrary contained
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herein or in the Warrant, the provisions Sections 2, 3, 4, 5, 6, 7, 9 and
10 of this Agreement shall survive indefinitely.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date, month and year first above written.
XXXXXXXX.XXX, INC.
By:____________________________
Name: Xxxxxxx X. XxXxxx
Title: President
CB CAPITAL INVESTORS, LLC
By: Chase Capital Partners,
as investment manager
By: __________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: _________________________
Name:
Title:
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