MUTUAL SERVICES AGREEMENT
MUTUAL SERVICES AGREEMENT (this "Agreement"), dated December
18, 2001, by and between INSTINET GROUP INCORPORATED, a Delaware corporation
(the "Seller"), and REUTERS AMERICA INC., a Delaware corporation (the
"Purchaser," and each of the Seller and the Purchaser, a "Party").
WHEREAS, the Purchaser and the Seller have entered into an
Asset Purchase Agreement (the "Asset Purchase Agreement"), dated December 18,
2001, pursuant to which the Seller agreed to sell the assets, rights, claims and
contracts used by the Seller exclusively in the business of development, sales,
marketing, support and distribution of the U.S. equity market research/real-time
financial market data platform currently marketed by the Seller as the "Research
and Analytics" ("R&A") product (the "Business"), and the Purchaser agreed to
assume certain liabilities and obligations of the Business; and
WHEREAS, the Seller desires that the Purchaser provide to the
Seller's customers certain services (as described herein) in support of the
Seller's services to such customers, and the Purchaser desires that the Seller
provide to the Purchaser certain services (as described herein) related to the
conduct of the Business.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
1. Provision of Customer Support Services. The Purchaser shall
make available or cause to be made available to the customers of the Seller set
forth on Schedule A hereto (the "Protected Customers"), in support of the
Seller's services to the Protected Customers, the services and products of the
Business that are specified on Schedule A hereto (the "Customer Support
Services") for the period commencing on the date hereof and ending on the
eighteen month anniversary of the Closing Date (the "Transition Period"), on the
terms and conditions and with the functionality as specified on Schedule A
hereto. The Seller agrees that it will retain liability, pursuant to the Asset
Purchase Agreement, for any claim relating to or arising from the handling of a
customer order, including order entry, order routing and order execution.
2. Provision of Support and Transition Services. (a) The
Seller shall make available or cause to be made available to the Purchaser the
services that are specified on Schedule B hereto (the "Support Services"), for
the periods following the date hereof specified on Schedule B hereto (each such
period being a "Support Term"), unless sooner terminated in accordance with
Section 6 hereof. The Parties agree that the Support Services are intended to be
transitional only, and the Purchaser agrees to use its reasonable efforts to end
its need to use such Support Services as promptly as practicable, and in any
event not later than the end of the relevant Support Term. The Seller agrees to
cooperate with the Purchaser to facilitate the smooth transition of
responsibility for such Support Services from the Seller to the Purchaser or any
third party designated by the Purchaser.
(b) The Seller agrees to cooperate with the Purchaser during
the Transition Period to make available customer lists, customer specifications
and other data in the Seller's possession to the extent related to the Business
and to make available from time to time during normal business hours employees
of the Seller, including, if requested, executive employees, to discuss the
Business, answer technical questions and assist in transition planning. During
the Transition Period as the Purchaser may reasonably request, the Seller agrees
to cooperate with, and provide reasonable assistance to, the Purchaser's sales
force to facilitate a smooth transition of account coverage and account
management of the customer accounts of the Business, and will provide reasonable
assistance to the Purchaser in training its sales force with respect to the
features and functionality of the R&A product.
3. Additional Services. If, following the execution of this
Agreement, the Parties determine that certain services were inadvertently
omitted from Schedule B hereto, then the Parties shall negotiate in good faith
to agree to the terms and conditions upon which such services would be added to
this Agreement, it being agreed that the charges for such services should be
determined on a basis consistent with the terms of this Agreement.
4. Compensation. (a) The fees (the "Customer Support Fees")
payable by the Seller to the Purchaser for the provision of the Customer Support
Services for the duration of the relevant Customer Term shall be the relevant
cost set forth on Schedule A, plus applicable statutory sales or value-added
taxes, as determined by the Purchaser.
(b) (i) In addition, the Seller shall pay to the Purchaser
certain non-recurring fixed costs incurred by the Purchaser in connection with
providing Customer Support Services (the "Non-Recurring Fixed Costs"); provided
that the aggregate of such costs shall not exceed $1,241,629. At the end of the
Transition Period, the Seller shall pay to the Purchaser an amount equal to
$1,241,629 less any amounts previously paid to the Purchaser pursuant to the
first sentence of this Section 4(b), regardless of whether relevant invoices
have been provided pursuant to Section 5.
(ii) The Parties agree that the costs of migrating
customers of the Business to the Improved BridgeStation
Terminal (as defined in Section 14(e)) shall be discussed and
incorporated into the broader discussions regarding the
process and scheduling of the RXN migration.
(c) The support fees (the "Support Fees") payable by the
Purchaser to the Seller from provision of the Support Services for the duration
of the relevant Support Term shall be the relevant cost set forth on Schedule B,
plus applicable statutory sales or value-added taxes, if any.
(d) The Purchaser shall be responsible for all costs, expenses
and charges incurred by the Seller under the lease agreement between the Seller
and BC Development Company dated November 1, 1992, as amended, related to the
software development center (the "Kansas Development Center") located at 11900
College Boulevard, Overland Park, Kansas, for the period commencing on the
Effective Date and ending on the date such lease is terminated in accordance
with its terms. The Purchaser shall reimburse the Seller in cash for these
costs, expenses and charges at the Closing for the period from the Effective
Date until the Closing and
for the periods from the Closing Date until the end of the lease term, at the
end of each fiscal quarter commencing at the end of the first fiscal quarter of
2002; provided that the Purchaser shall be entitled to offset any charges
related to the use by the Seller of space at the Kansas Development Center
calculated pursuant to Schedule B hereof.
(e) The Purchaser and the Seller agree to treat for U.S.
federal, state and local income tax purposes, all payments made pursuant to this
Agreement as payments for the provision of services.
5. Terms of Payment. (a) Except as otherwise expressly
provided herein, (i) the Seller shall invoice the Purchaser quarterly in arrears