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Exhibit 10.8
Cooperation Agreement: Wholesale Risk Management
ABB Energy Information Systems, a division of ABB Power T&D Company Inc., a
Delaware corporation ("ABB") and Caminus LLC, a Delaware limited liability
company ("Caminus") have entered into this Cooperation Agreement as of the 13th
day of July 1999:
I. Background of the Agreement
Caminus is a supplier of trading and risk management software for electric
energy at the wholesale level with its Zai*Net product line. ABB is a supplier
of solutions for generation asset optimization (unit commitment and related
functions) with its GIMS/Couger product lines. (The two product lines are
hereinafter referred to collectively as the "Products.")
ABB and Caminus believe that there will be a need for vertically integrated
trading/retail supply firms to manage the risks in their businesses across their
retail and wholesale activities and that a "loose integration" of the Products
can fill this need. By "loose integration" is meant the separate modification of
each of the Products to facilitate the ability of each of the Products to
exchange appropriate data with the other and to make use of that data in its
calculations. "Loose integration" does not mean that the Products will be
integrated to create a common application or that they will be packaged and sold
as a single product. (As used hereafter in this Agreement, "integration" shall
mean "loose integration" as defined in this paragraph.)
ABB and Caminus also believe it is likely that each of the Products can be
enhanced by adding functionality to exploit the additional information available
from integration. Examples of such enhancements include changed Monte Carlo
simulation parameters utilizing specific plant data from unit commitment.
II. Basis of Cooperation
During the term of this agreement, the parties shall work together as they may
mutually agree from time to time to further the purposes of this Agreement as
described above in Section I.
It is the present intent of the parties to proceed under the following schedule:
- By July 22, 1999, the parties will develop: (1) a concept for the
integration of the Products, (2) a plan to implement the integration
concept (including development of data models and interfaces and plans by
each party to make use of the integration data); and (3) a marketing
strategy.
- By July 30, 1999, the parties will issue a joint press release announcing
their plans and the expected availability of enhanced products.
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- During the month of July 1999 (but not necessarily complete by the end of
July) the parties will exchange sufficient sales information and material
to enable each party to use the integration concept to market their
respective Products.
- During a trial market period, from approximately the end of July 1999
through the remainder of the term of this Agreement, the parties will
include the integration concept in their respective sales presentations
to new customers, when appropriate, and will inform their respective
current customers about the concept. The parties will gather and exchange
customer feedback and other information during this trial market period
in order to evaluate the market impact of the concept.
- From time to time throughout the term of this Agreement, the parties will
exchange technical information about the Products in order to facilitate
the integration and product enhancement contemplated in this Agreement.
If there is mutual agreement to engage in joint marketing efforts, following the
integration work and trial market period, the terms of any such agreement will
be set forth in an amendment to this Agreement.
III. Non-Exclusivity/Non-Competition
The obligations of the parties under this Agreement are not exclusive. By way of
example (but without limitation) ABB is free to engage in product integration
activities involving GIMS/Couger with other suppliers of risk management and
trading software, and Caminus is free to engage in product integration
activities involving Zai*Net with other suppliers of solutions for generation
asset optimization (unit commitment and related functions). Nevertheless, each
party shall inform the other, in writing, on or before the date it enters into
any agreement with any third party for the integration of any of the Products
with products of a third party that are competitive with any of the Products.
During the term of this Agreement, ABB shall not acquire or develop financial
wholesale risk management software that may be offered in competition with
Zai*Net, and ABB shall not enter into any agreement to acquire an entity that
offers such a product without first providing thirty days' written notice to
Caminus of its intentions and offering Caminus in that notice the opportunity to
terminate this agreement.
During the term of this Agreement, Caminus shall not acquire or develop specific
unit commitment software that may be offered in competition with Couger, and
Caminus shall not enter into any agreement to acquire an entity that offers such
a product, without first providing thirty days' written notice to ABB of its
intentions and offering ABB in that notice the opportunity to terminate this
agreement.
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IV. Confidentiality
Caminus recognizes that ABB is currently offering a trading software product,
TransAct, and an integrated solution, TraderStation. ABB agrees not to have
employees directly involved in the technical development of those products
participate simultaneously in the integration work contemplated in this
Agreement. Caminus agrees that it is responsible for not sharing with ABB
information pertaining to Zai*Net trading and risk management capabilities or
other proprietary information relating to Zai*Net that it would not share with a
competitor, and that ABB is not responsible for protecting from disclosure or
use any information that Caminus provides to ABB under this Agreement.
ABB recognizes that Caminus is considering the development of products for
generation asset optimization. Caminus agrees not to have employees directly in
the technical development of such products simultaneously in the integration
work contemplated in this Agreement. ABB agrees that it is responsible for not
sharing with Caminus information relating to GIMS/Couger capabilities or other
proprietary information relating to GIMS/Couger that it would not share with a
competitor, and that Caminus is not responsible for protecting from disclosure
or use any information that ABB provides to Caminus under this Agreement.
Both parties have identified the need for electricity trading to more explicitly
and rigorously model and analyze significant physical risks (such as plant and
transmission outages or curtailments). Both parties are currently conducting
independent R&D programs in this area. The parties agree that these developments
are outside the scope of the integration work. Each party acknowledges that it
is responsible for protecting its own work and plans, and for avoiding
disclosure to the other party of any information that it considers proprietary.
V. Ownership
No transfer of intellectual property rights is intended or implied by this
Agreement and neither party shall have any ownership rights in the Products of
the other party, including any modifications of such Products resulting from the
integration or product enhancement efforts conducted under this Agreement. No
joint ownership rights in any intellectual property shall be inferred from any
activities of the parties under this Agreement.
VI. Relationship of the Parties
Each party is an independent contractor and neither shall be deemed an employee,
agent, partner or joint venturer of the other. Neither party shall take any
action purporting to bind the other party or represent that it has any authority
to do so.
Each party shall be solely responsible for its own costs in carrying out this
Agreement, and each party shall be solely responsible for claims of third
parties arising from the party's
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negligent act or omission. Each party shall defend, indemnify and hold harmless
the other party from and against any claims of third parties for property damage
or bodily injury, including death, arising from the party's negligence except to
the extent such claims arise from the negligent act or omission of the other
party.
ALL INFORMATION FURNISHED BY ONE PARTY TO THE OTHER UNDER THIS AGREEMENT SHALL
BE FURNISHED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE BEING SPECIFICALLY
DISCLAIMED. Neither party shall be liable to the other party for any loss of
use, interruption of business, lost profits, or any other indirect, special,
incidental, or consequential damages whether claimed to arise in contract, tort
(including negligence and strict product liability) or under any other legal
theory or cause of action.
VII. Term of Agreement
The term of this Agreement shall begin on the date shown above and shall end on
December 31, 1999 or on such earlier date as the parties may mutually agree.
Either party may terminate this agreement immediately following the material
breach of this Agreement by the other party which the other party fails to
remedy within fourteen (14) days following receipt of written notice of the
breach.
If there is a change of control (as defined herein below) in any Party (the
"Affected Party") during the term of this Agreement, this Agreement shall be
deemed to have terminated as of the date such change of control occurs, save
that such termination shall not be effective if the remaining Parties have
agreed in writing to the particular change of control and such change of control
takes place as proposed.
"Change of Control" as used in this Section means: (i) any consolidation or
merger of the Affected Party with or into any other corporation or other entity
or person, or any other reorganization of ownership interests, in which the
shareholders or other owners of the Affected Party immediately prior to such
consolidation, merger or reorganization, own, directly or indirectly, less than
fifty percent (50%) of the surviving corporation's or entity's voting power
immediately after such consolidation, merger or reorganization, or any
transaction or series of related transactions in which the shareholders or other
owners of the Affected Party immediately prior to such transaction or series of
related transactions, own, directly or indirectly, less than fifty percent (50%)
of the surviving corporation's or entity's voting power immediately after such
transaction or series of transactions; or (ii) a sale, lease or other
disposition of all or substantially all of the assets of the Affected Party
relating to the business which is the subject of this Agreement in which the
shareholders or other owners of the Affected Party immediately prior to such
disposition, own, directly or indirectly, less than
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fifty percent (50%) of the acquiring corporation's or entity's voting power
immediately after such disposition.
The provisions of this Agreement which expressly or by implication are intended
to survive a termination of this Agreement (including, without limitation, those
provisions relating to confidentiality) will survive and continue to bind the
parties following the termination of this Agreement for any reason.
VIII. Employees
During the term of this Agreement and for a period of one year following the
termination of this Agreement, neither party shall employ or otherwise contract
for the performance of services by any person who was an employee of the other
party during the term of this Agreement and who also participated in the
integration efforts that are the subject of this Agreement.
IX. Governing Law
The interpretation and enforcement of this Agreement shall be governed by the
law of the State of New York, without regard to the choice of law or conflict of
laws rules of any jurisdiction.
ABB ENERGY INFORMATION SYSTEMS
a division of ABB Power T&D Company Inc. CAMINUS LLC
By: /s/ Xxxxx Xxxxxx
------------------------------- By: /s/ Xxxxx X. Xxxxxx
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