Contract
Exhibit 10.2
This AMENDMENT AND SUPPLEMENT TO THE DELIVERY AND LICENSE AGREEMENT AND THE SUPPORT AGREEMENT is made as of August , 2003 (the “Effective Date”) between OM TECHNOLOGY AB, a Swedish corporation with its principal place of business at Xxxxxxxxxxxxxx 00, XX-000 00 Xxxxxxxxx (“OM Technology”), and International Securities Exchange, Inc., a Delaware corporation with its principal place of business at 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (“ISE”). OM Technology and ISE are hereinafter referred to collectively as the “Parties” or individually as a “Party”.
W I T N E S S E T H :
WHEREAS, OM Technology and ISE have entered into a certain Delivery and License Agreement, dated as of March 1998, as amended in January 1999 (the “DLA”), and a certain Support Agreement, dated as of March 1998, as amended (the “SA”), pursuant to which OM Technology provides to ISE with a license for, and support of, software systems; and
WHEREAS, in light of certain business and technical factors, the Parties desire to amend and supplement the DLA and the SA pursuant to which OM Technology grants ISE a broadened license to trade certain instruments in the US, as well as the right to expand such license to additional instruments both within the US and outside the US, as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained herein, the Parties hereby agree to amend and supplement the DLA and the SA, and otherwise maintain the DLA and the SA unchanged (except as otherwise agreed to in writing) as follows:
ARTICLE I
Definitions
1.01 Defined Terms. Capitalized terms used herein without definition shall have the meanings ascribed to them in the DLA or the SA, as the case may be. The following capitalized terms, as used herein, shall have the meanings set forth below.
“Affiliate” shall mean any entity which, partially or completely, owns, is owned by or is under common ownership with a Party to this Addendum and which controls, is controlled by or is under common control with a Party to this Addendum. For purposes of this definition, the term “control” including the correlative meanings of the terms “controlled by” and “under common control with”, as used with respect to either Party, shall be
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evidenced by ownership of at least 50% of the equity or voting securities of such entity.
“Cash” means any instrument that is not defined as a Derivatives instrument.
“Commodities” means a market for the trading of instruments that represent a physical substance, such as food, grains, energy (oil, natural gas, electricity), and metals.
“Derivatives” mean any instrument that is a contract, agreement, or transaction that:
| (a) | Provides, in whole or in part, on a firm or contingent basis, for the purchase or sale of, or is based on the value of, or any interest in, one or more commodities, securities, currencies, interest or other rates, indices, quantitative measures, or other financial or economic interests or property of any kind; or |
| (b) | Involves any payment or delivery that is dependent on the occurrence or nonoccurrence of any event associated with a potential financial, economic, or commercial consequence; or |
| (c) | Involves any combination or permutation of any contract, agreement, or transaction or underlying interest, property, or event described in paragraphs (a) or (b) of this section. |
For purposes of this definition, derivatives instruments include, but are not limited to options, futures, forwards and warrants. For example, common stock warrants and stock index warrants are equities derivatives; foreign currency warrants are FX derivatives.
“Equities” (also called stocks) means a market for the trading of instruments that represent an ownership position (called equity) in a corporation and represents a claim on its proportional share in the corporation’s assets and profits. In this agreement, unit investment trusts, closed-end funds, preferred stock, stock indexes, American Depository Receipts (ADRs), and Exchange Traded Funds (ETFs) are all classified as equities cash instruments; common warrants are classified as equities derivatives instruments; and convertible bonds, instruments that can be converted from bonds to stock, are classified equities cash instruments.
“Fixed Income” means a market for the trading of instruments that represent a security that pays an interest rate, such as a bond or preferred stock. A bond may be issued by countries, states, cities, corporations and other organizations. However, since preferred stocks are traded primarily on
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equities exchanges, preferred stock, in this agreement, is classified as an equities cash instrument.
“FX” means a market for the trading of instruments that represent currency.
“Guaranteed Enhancement Fee” shall mean the prepaid fee as set forth in Section 3.03(b) which shall be applied to, and used as payment for, the cost of hours to develop any agreed future enhancements under the SA within five (5) years from Effective Date pursuant to a predefined conversion ratio of 2:1 from license fee to Guaranteed Enhancement Fee.
“Standard Pricing Table” shall have the meaning set forth in Schedule 2.
ARTICLE II
Schedule 1
2.01 Schedule 1 to the DLA is hereby deleted in its entirety and replaced with the Schedule 1 annexed hereto.
ARTICLE III
Broadened License
3.01 Broadened License. Under the terms and subject to the conditions set forth herein, and also in conformance with applicable provisions of Article 5 of the DLA, OM Technology, upon the Effective Date, subject to payment of the fees below, grants ISE, including any of its Affiliates, a broadened license to use the Software Product solely within the Territory for the following instruments, which instruments are also listed on Schedule 1 under the section headed “Licensed Financial Products Under Broadened License”: Equities: cash and derivatives; Fixed Income: derivatives; FX: derivatives; and Commodities: derivatives. (For clarification, the broadened license does not cover the Software Product within the Territory for the following instruments, which instruments were and continue to be licensed under the DLA and are also listed on Schedule 1 under the section headed “Licensed Financial Products Under DLA”: Stock Options, Stock LEAPS Options, Stock Index Options, Stock Index LEAPS Options, and Equity FLEX Options.)
3.02 Terms and Conditions of Broadened License. The broadened license granted pursuant to this Article III shall be governed, in all respects, by the terms and conditions of the DLA, with the following restrictions and subject to the following limitations:
(a) The broadened license is non-exclusive, and the exclusivity provisions set forth in Articles 5.22-5.23 of the DLA do not apply.
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(b) The broadened license shall not include a license to trade Japanese government bonds or instruments based on Japanese government bonds until [***].
(c) If ISE acquires a third-party which becomes an ISE Affiliate, and such Affiliate is, in OM’s reasonable opinion, a direct competitor of [***] at the time of the acquisition, then such Affiliate may not trade fixed income instruments or fixed income futures.
(d) For as long as [***] has a valid support agreement with OM Technology, the broadened license shall not include the right to use the CLICK Exchange System in [***] without the prior written approval of [***]. Further restrictions may be applicable on future licenses due to existing agreements OM Technology has with its customers.
(e) ISE shall notify OM Technology, in advance, in the event it determines to present a [***] to [***] based on discounted OM pricing for the purpose of jointly operating a market on an instrument licensed under the broadened license with [***]. If [***] is a current OM Technology customer, OM Technology will then have the right to change the Standard US Price List [***] in its own discretion. If OM Technology is, at the time, in sales negotiations with [***], ISE shall not present its [***] to [***] within [***] of the date of its notice to OM Technology.
3.03 Consideration for Broadened License. In consideration for the broadened license granted pursuant to this Article III and for guaranteed future enhancements of the Software Product, ISE shall pay OM Technology the fees in this Section 3.03, in accordance with the following. (For clarification, none of the payment obligations of ISE under the DLA, including, but not limited to, Section 10, shall have any applicability whatsoever to the instruments licensed pursuant to the broadened license granted pursuant to this Article III. Further, the amount of all such fees set forth herein are calculated using a [***]% discount to the Standard Pricing Table granted to ISE and a conversion of a portion of the license fee to a Guaranteed Enhancement Fee.)
(a) Up-Front License Fee. ISE shall, upon the Effective Date, pay to OM Technology a one time, broadened license fee of MUSD [***] (US $ [***]). No other fees, except for those explicitly set forth herein, shall be payable for the Broadened License.
(b) Guaranteed Enhancement Fee. ISE shall, upon the Effective Date, pay to OM Technology a Guaranteed Enhancement Fee of MUSD [***] (US $ [***]), payable over a five year period, as follows:
| (i) | ISE shall pay MUSD [***] (US $ [***]) on [***] (where ISE commits to consuming a minimum of $ [***] worth of hours during the period [***] to [***]); |
| *** | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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| (ii) | ISE shall pay MUSD [***] (US $ [***]) on [***] (where ISE commits to consuming a minimum of $ [***] worth of hours during the period [***] to [***]); |
| (iii) | ISE shall pay USD [***] (US $ [***]) on [***] (where ISE commits to consuming a minimum of $ [***] worth of hours during the period [***] to [***]); |
| (iv) | ISE shall pay USD [***] (US $ [***]) on [***] (where ISE commits to consuming a minimum of $ [***] worth of hours during the period $ [***] to [***]); and |
| (v) | ISE shall pay USD [***] (US $ [***]) on [***] (where ISE commits to consuming a minimum of $ [***] worth of hours during the period $ [***] to [***]. |
(c) The Guaranteed Enhancement Fee may, within [***] from Effective Date, be applied to, and used as payment for, the cost of any agreed future enhancements to the Software Product as set out in Article 7 of the SA, including, but not limited to, enhancements for Stock Options, Stock LEAPS Options, Stock Index Options, Stock Index LEAPS Options, and Equity FLEX Options. In the event the full amount of any installment has not been used within the respective period stated above in which ISE commits to consuming it, ISE may transfer remaining unused Guaranteed Enhancement Fee (not exceeding [***]%) to the next year. If ISE does not want to transfer this fee to the next year, OM will credit ISE for an amount corresponding to [***] % of the fee for hours not used from [***]% of the Guaranteed Enhancement Fee for that period up to the total of [***]%. OM will not credit ISE any amount up to [***]% not used by ISE during the current period. However, the full amount of the Guaranteed Enhancement Fee of MUSD [***] (US $ [***]) must be paid no later than [***].
(d) Support and Maintenance Fees. The ISE shall commence paying support and maintenance fees with respect to Licensed Financial Products under the Broadened License listed in Schedule 1 only following acceptance of the Software Product for the instruments in question. The support and maintenance fees shall be determined by the Parties and shall be based upon the Standard Pricing Table in effect at the time licenses are purchased, subject to the [***]% ISE discount (e.g., [***] MUSD for the Financial Products licensed under this Amendment and Supplement to the Delivery and License Agreement). Except as specifically set forth herein to the contrary, all other terms and conditions of the SA shall apply.
3.04 Right to Expand Broadened License to Additional Instruments and Additional Regions. Under the terms and subject to the conditions set forth in Section 3.02, OM Technology, commencing on the Effective Date and continuing until the fifth (5th) anniversary of the Effective Date, subject to payment of the fees set forth below, grants ISE, including any of its Affiliates as well as any third-party in which the ISE holds 25% or more of the equity, the right to expand the broadened license to use the Software Product: (a) to the following additional instruments solely within the Territory, which instruments are also listed on Schedule 1 to the DLA under the section headed “Right to License Financial Products Under Broadened License Inside the Territory”: Fixed Income: cash; FX: cash; and Commodities: cash, and (b) to the following instruments in the specified geographic region, which instruments and regions are also listed on Schedule 1 to the DLA under the section headed “Right to License Financial Products Under Broadened License Outside the Territory”: Equities: cash and derivatives; Fixed Income: cash and derivatives; FX: cash and derivatives; and Commodities: cash and derivatives. In the event ISE exercises its right to expand the broadened license pursuant to this Section 3.04, the terms and conditions of such license shall be governed by Sections 3.02 and 3.03(c) and (d). The amount of the fees to expand the broadened license shall be based upon the Standard Pricing Table, subject to the [***]% ISE discount. OM Technology may not decrease the amount of the percentage discount. OM Technology may only change the Standard Pricing Table once every calendar year, however, not before 1 January 2004. OM Technology shall only use reasonable and motivated changes which shall not unreasonably exceed market conditions when changing OM Technology’s standard pricing tables, however, the prices may not be increased or decreased with more than [***]% each calendar year. For clarification, the above [***] percent ([***]%) discount of the Standard Pricing Table will be
| *** | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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valid from the Effective Date and until 5 years thereafter, and will only be applicable for ISE and its Affiliates and any third party in which the ISE holds [***]% or more of the equity, however, if ISE controls at least [***]% but less than [***]% of the equity or voting securities of a third-party, the discount will be linearly reduced. For example, if ISE controls [***]% of a third-party, the discount will be calculated to [***]% ([***]% * [***]%= [***]%). Control of less than [***]% will not qualify ISE for any discount.
ARTICLE IV
Future Enhancements and Addition to DLA
4.01 Future Enhancements. As of the Effective Date, in addition to the terms and conditions set out in Article 9 of the DLA and Article 7 of the SA, the following will apply to all future enhancements developed based on information furnished by ISE for the Software Product licensed or available to be licensed under the broadened license. (For clarification, this Article IV shall not apply to any future enhancements for the Software Product within the Territory for the following instruments, which instruments were and continue to be licensed under the DLA and are also listed in Schedule 1 under the section headed “Licensed Financial Products Under DLA”: Stock Options, Stock LEAPS Options, Stock Index Options, Stock Index LEAPS Options, and Equity FLEX Options.)
(a) If any proposed future enhancement would have a substantial risk, in both Parties’ reasonable opinion (or if the Parties disagree, in the written opinion of an independent, neutral, unaffiliated third-party expert, which expert shall be selected by mutual agreement of the Parties and whose cost shall be equally shared between the Parties) of infringing any intellectual property right of a third-party, OM Technology shall have no obligation to proceed with the development or delivery of such enhancement, except as explicitly set forth below:
| (i) | If such independent third-party determines that the proposed future enhancement would not have a substantial risk of infringing the intellectual property right of a third-party, OM Technology shall develop and deliver the proposed enhancement as set out in Article 7.1 of the SA. |
| (ii) | If such independent third-party determines that the proposed future enhancement would have a substantial risk of infringing the intellectual property right of a third-party, ISE may require OM Technology to proceed with such proposed future enhancements, and OM Technology shall be obliged to continue development, only provided ISE, for such an enhancement, shall defend, indemnify and hold OM Technology harmless from and against any claim, losses, demand, liability (including settlements and judgements) or expenses (including reasonable attorneys’ fees, expenses and court costs) arising out of any claim relating to any suits or actions brought against OM Technology related to any infringement of any intellectual property right of third parties. Further, OM Technology makes no warranties or representations with respect to such future enhancements. |
(b) If any delivered future enhancement would have a substantial risk, in both Parties’ reasonable opinion (or, if the Parties disagree, such difference of opinion to be stated immediately upon notification of such a risk by the other Party, in the written opinion, to be submitted within ten (10) business days after notification, of an independent, neutral, unaffiliated third-party expert, which expert shall be selected by mutual agreement of the Parties and whose cost shall be equally shared between the Parties) of infringing any intellectual property right of a third-party, OM Technology shall have the right to modify or replace the affected portion of the Software Product and Documentation so that it is no longer infringing, without any compensation or damages to ISE (such modification or replacement shall be made in accordance with the SA), except as explicitly set forth below:
| (i) | If such independent third-party determines that the delivered future enhancement would not have a substantial risk of infringing the intellectual property right of a third-party, OM Technology shall not have the right to modify or replace the affected portion of the Software Product and Documentation. |
| (ii) | If such independent third-party determines that the delivered future enhancement would have a substantial risk of infringing the intellectual property right of a third-party, ISE may prevent OM Technology from modifying or replacing the affected portion of the Software Product and Documentation only provided ISE, for such an enhancement, shall defend, indemnify and hold OM Technology harmless from and against any claim, losses, demand, liability (including settlements and judgements) or expenses (including reasonable attorneys’ fees, expenses and court costs) arising out of any claim relating to any suits or actions brought against OM Technology related to any infringement of any intellectual property right of third parties. Further, OM Technology makes no warranties or representations with respect to such future enhancements. |
(c) Notwithstanding Section 4.01(b), above, if any delivered future enhancement is subject to any injunction, similar judicial order, action, suit or proceeding of any nature (“ Proceeding”), that arises out of, or relates to an allegation that any portion of the Software Product, infringes any intellectual property right of third parties, OM Technology shall have the right to modify or replace the affected portion of the Software Product and Documentation so that it is no longer infringing, without any compensation or damages to ISE (such modification or replacement shall be made in accordance with the SA), except that ISE may prevent OM Technology from modifying or replacing the affected portion of the Software Product and Documentation only provided ISE, for such an enhancement, shall defend, indemnify and hold OM Technology harmless from and against any claim, losses, demand, liability (including settlements and judgements) or expenses (including reasonable attorneys’ fees, expenses and court costs) arising out of such Proceeding. Further, OM Technology makes no warranties or representations with respect to such future enhancements.
(d) Future enhancements are non-exclusive and the exclusivity provisions set forth in Articles 5.22-5.23 of the DLA do not apply.
4.02 Patents and Copyrights. The DLA will be amended by the following new Section 9.6 to be inserted in its entirety.
“9.6 OM Technology believes that, with respect to the trading of [***] and [***], the Software Product does not infringe [***]. But because of recent [***] of the owner and licensee of [***], and the substantial costs related to defending claims for alleged patent infringement (including actions without merit), OM Technology disclaims any liability for all claims related to infringement, alleged or otherwise, of [***] with respect to the trading of [***] and [***]. This disclaimer is not and shall not be construed in any way as an admission that [***] is [***]. Accordingly, OM Technology makes no warranties or representations with respect to [***] for the purpose of trading [***] or [***].”
ARTICLE V
Miscellaneous
5.01 No Other Changes. Other than the amendments expressly set forth herein, all other provisions of the DA or the SA shall remain unmodified and shall continue to be valid and fully binding and enforceable as they exist as of the date hereof.
5.02 Governing Law and Arbitration. This Amendment Agreement shall be governed by the terms and conditions set forth in Article 22 of the DLA.
5.03 Counterparts. This Amendment Agreement may be signed in two or more identical counterparts, each of which shall be treated as an original but all of which, when taken together, shall constitute one and the same instrument.
| *** | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. Please note that in Section 4.01 Future Enhancements, approximately two pages have been omitted. |
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the opening of business on the day and year first above written.
| XXXXXXXXX, Xxxxxx 00, 0000 |
Xxx Xxxx – August 7, 2003 | |||
| Place and date |
Place and date | |||
| OM Technology AB |
||||
| /S/ XXXXXX XXXXXX |
/S/ XXXXX XXXXX | |||
| Print Name and Title |
Print Name and Title | |||
| Xxxxxx Xxxxxx |
Xxxxx Xxxxx | |||
| President & CEO |
President & CEO | |||
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