<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1999
REGISTRATION NO. 333-80335
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
PCQUOTE.COM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7375 36-4284139
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
Incorporation or Organization) No.)
</TABLE>
300 SOUTH WACKER DRIVE, SUITE 300
CHICAGO, ILLINOIS 60606
(312) 913-2800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JIM R. PORTER, CHIEF EXECUTIVE OFFICER
PCQUOTE.COM, INC.
300 SOUTH WACKER DRIVE, SUITE 300
CHICAGO, ILLINOIS 60606
(312) 913-2800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
DONALD E. FIGLIULO, ESQ. NEIL GOLD, ESQ.
Wildman, Harrold, Allen & Dixon Fulbright & Jaworski L.L.P.
225 West Wacker Drive 666 Fifth Avenue
Chicago, Illinois 60606-1229 New York, New York 10103
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid by us in connection with this offering are as
follows. All amounts other than the SEC registration fee, NASD filing fee and
Nasdaq National Market application fee are estimates.
<TABLE>
<S> <C>
SEC registration fee.......................................... $ 34,687.00
NASD filing fee............................................... $ 12,977.50
Nasdaq National Market listing fee............................ $ 85,500.00
Printing...................................................... $ 190,000.00
Legal fees and expenses....................................... $ 400,000.00
Accounting fees and expenses.................................. $ 350,000.00
Blue sky fees and expenses.................................... $ 1,500.00
Transfer agent and registrar fees............................. $ 3,000.00
Miscellaneous................................................. $ 322,335.50
------------
Total......................................................... $1,400,000.00
------------
------------
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act").
As permitted by the Delaware General Corporation Law, our certificate of
incorporation includes a provision that eliminates the personal liability of our
directors for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to us
or our stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the General Corporation Law of the State of Delaware (regarding
unlawful dividends and stock purchases) or (iv) for any transaction from which
the director derived an improper personal benefit.
As permitted by the General Corporation Law of the State of Delaware, our
Bylaws provide that (i) we are required to indemnify our directors and officers
to the fullest extent permitted by the General Corporation Law of the State of
Delaware, subject to certain very limited exceptions, (ii) we may indemnify our
other employees and agents as set forth in the General Corporation Law of the
State of Delaware, (iii) we are required to advance expenses, as incurred, to
our directors and executive officers in connection with a legal proceeding to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, subject to certain very limited exceptions and (iv) the rights
conferred in our Bylaws are not exclusive.
We intend to enter into Indemnification Agreements with each of our
directors and executive officers to give them additional contractual assurances
regarding the scope of the indemnification set forth in our certificate of
incorporation and to provide additional procedural protections. At present,
there is no pending litigation or proceeding involving one of our directors,
officers or employees regarding which indemnification is sought, nor are we
aware of any threatened litigation that may result in claims for
indemnification.
Reference is also made to Section 8 of the Underwriting Agreement, which
provides for the indemnification of our officers, directors and controlling
persons against certain liabilities. The indemnification provision in our
certificate of incorporation, Bylaws and the Indemnification
II-1
<PAGE>
Agreements entered into between us and each of our directors and executive
officers may be sufficiently broad to permit indemnification of our directors
and executive officers for liabilities arising under the Securities Act.
We expect, with approval by our Board of Directors, to obtain directors' and
officers' liability insurance.
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein:
<TABLE>
<CAPTION>
DOCUMENT EXHIBIT NUMBER
- ----------------------------------------------------------------------------- -----------------
<S> <C>
Form of Underwriting Agreement............................................... 1.1
Amended and Restated Articles of Incorporation of PCQuote.com................ 3.1
Bylaws of PCQuote.com........................................................ 3.2
Form of Indemnification Agreement............................................ 10.12
</TABLE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
We issued 9,800,000 shares of our common stock to HyperFeed Technologies on
March 19, 1999.
On April 12, 1999, we granted CNNFN a warrant to purchase 515,790 shares of
our common stock exercisable for less than $.01 per share. On April 29, 1999,
CNNFN purchased 128,948 shares of our common stock upon exercise of the vested
portion of this warrant.
All issuances of securities were made in reliance on Section 4(2) of the
Securities Act.
The above share numbers reflect an anticipated 9,800-for-1 split of our
common stock.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed herewith:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- ------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement**
3.1 Amended and Restated Certificate of Incorporation*
3.2 By-laws**
4.1 Specimen Stock Certificate**
4.2 Warrant issued by Registrant to CNNFN**
4.3 Statement of Registration Rights by and between registrant and CNNFN (included in Exhibit 4.2)**
4.4 Form of Registration Rights Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
5.1 Opinion of Wildman, Harrold, Allen & Dixon regarding legality of the securities being
registered*
10.1 Form of Contribution and Separation Agreement to be entered into by and between registrant and
HyperFeed Technologies, Inc.**
10.2 Form of Services Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.3 Form of Maintenance Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- ------------------------------------------------------------------------------------------------
<C> <S>
10.4 Form of Datafeed License Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.5 Form of Non-Competition Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.6 Form of Tax Indemnification and Allocation Agreement to be entered into by and between
registrant and HyperFeed Technologies Inc.**
10.7 Agreement dated April 12, 1999 by and between registrant and CNNFN+**
10.8 Software License and Distributor Agreement dated May 28, 1999 by and between registrant and
Townsend Analytics, Ltd.**
10.9 Executive Employment Agreement dated June 8, 1999 by and between registrant and Andrew
Peterson**
10.10 1999 Combined Incentive and Non-statutory Stock Option Plan**
10.11 Co-Branding Agreement dated October 11, 1996 by and between registrant and AB Watley+
10.12 Form of Indemnification Agreement to be entered into by and between registrant and its directors
and executive officers**
23.1 Consent of KPMG LLP*
23.2 Consent of Wildman, Harrold, Allen & Dixon (included in Exhibit 5.1)
24.1 Power of Attorney**
27.1 Financial Data Schedule**
99.1 Consent of James R. Quandt**
99.2 Consent of Francis J. Harvey**
99.3 Consent of Ronald J. Grabe**
</TABLE>
- ------------
* To be filed by amendment
** Previously filed
+ Confidentiality Requested, confidential portions have been omitted and filed
separately with the Commission, as required by Rule 406(b).
(b) Financial Statement Schedules
No financial statement schedules are provided because the information called
for is not required or is shown either in the financial statements or the notes
thereto.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 14 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
II-3
<PAGE>
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 3 to its Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois, on the 21st day of July, 1999.
<TABLE>
<S> <C> <C>
PCQuote.com, INC.
By: /s/ TIMOTHY K. KRAUSKOPF
-----------------------------------------
Timothy K. Krauskopf
CHIEF OPERATING OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registrant's Registration Statement has been signed by the
following persons in the capacities indicated on July 21, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------- --------------------------------------
<C> <S>
*
- -------------------------------------- Chairman of the Board and Chief
Jim R. Porter Executive Officer
/s/ TIMOTHY K. KRAUSKOPF
- -------------------------------------- President, Chief Operating Officer and
Timothy K. Krauskopf Director
/s/ ANDREW N. PETERSON
- -------------------------------------- Chief Financial Officer and Secretary
Andrew N. Peterson
*
- -------------------------------------- Director
John E. Juska
*
- -------------------------------------- Director
John R. Hart
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By /s/ TIMOTHY K.
KRAUSKOPF
-------------------------
Timothy K. Krauskopf
AS ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ------------- --------------------------------------------------------------------------------------------- ---------
<C> <S> <C>
1.1 Form of Underwriting Agreement**
3.1 Amended and Restated Certificate of Incorporation*
3.2 By-laws**
4.1 Specimen Stock Certificate**
4.2 Warrant issued by Registrant to CNNFN**
4.3 Statement of Registration Rights by and between registrant and CNNFN (included in Exhibit
4.2)**
4.4 Form of Registration Rights Agreement to be entered into by and between registrant and
HyperFeed Technologies, Inc.**
5.1 Opinion of Wildman, Harrold, Allen & Dixon regarding legality of the securities being
registered*
10.1 Form of Contribution and Separation Agreement to be entered into by and between registrant
and HyperFeed Technologies, Inc.**
10.2 Form of Services Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.3 Form of Maintenance Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.4 Form of Datafeed License Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.5 Form of Non-Competition Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.6 Form of Tax Indemnification and Allocation Agreement to be entered into by and between
registrant and HyperFeed Technologies Inc.**
10.7 Agreement dated April 12, 1999 by and between registrant and CNNFN+**
10.8 Software License and Distributor Agreement dated May 28, 1999 by and between registrant and
Townsend Analytics, Ltd.**
10.9 Executive Employment Agreement dated June 8, 1999 by and between registrant and Andrew
Peterson**
10.10 1999 Combined Incentive and Non-statutory Stock Option Plan**
10.11 Co-Branding Agreement dated October 11, 1996 by and between registrant and AB Watley+
10.12 Form of Indemnification Agreement to be entered into by and between registrant and its
directors and executive officers**
23.1 Consent of KPMG LLP*
23.2 Consent of Wildman, Harrold, Allen & Dixon (included in Exhibit 5.1)
24.1 Power of Attorney**
27.1 Financial Data Schedule**
99.1 Consent of James R. Quandt**
99.2 Consent of Francis J. Harvey**
99.3 Consent of Ronald J. Grabe**
</TABLE>
- ------------
* To be filed by amendment
** Previously filed
+ Confidentiality Requested, confidential portions have been omitted and filed
separately with the Commission, as required by Rule 406(b).
<PAGE>
EXHIBIT 10.11
CONFIDENTIAL TREATMENT
Portions indicated by a
[***] have been omitted
and filed separately
with the Commission
PCQUOTE
- ----------------------------------------------------------------------------
CO-BRANDING AGREEMENT
This agreement is made effective Oct. 11, 1996 by and between PC QUOTE,
INC. (hereinafter referred to as "PCQ"), a Delaware Corporation with its
principal place of business at 300 South Wacker Drive, Chicago, Illinois
60605 and AB Wately, Inc. (hereinafter referred to as "ABW") with its
principal place of business at 33 West 17th Street, New York, NY 10011.
This agreement shall apply to said ABW and all of its subsidiaries and
related companies.
Definitions:
SOFTWARE
PC QUOTE 6.0-TM- for Windows on the Internet is a software application that
displays market data information, provided via the digital Hyperfeed, in the
form of quotes, charts, graphs, tables, board views, tickers and other
analytical tools.
HYPERFEED
The PC Quote proprietary digital data feed transmitted via satellite, land
line, or Internet with advanced compression technology, containing financial
market information obtained by PCQ from the institutions and exchanges listed
in Section 5 of this Agreement. This market data includes stock quotes,
futures and options trading, commodities, and other related information.
Witnesseth:
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the mutual covenants and conditions herein set forth, and with the intent
to be legally bound thereby, ABW and PCQ hereby agree to the following:
1. The Co-Branded Service
A. PCQ agrees to allow ABW to co-brand the PCQ SOFTWARE in order to
provide a value added service on ABW's World Wide Web site. The co-branded
SOFTWARE will be made available via ABW software housed at the ABW office
listed in this Agreement. The server will be accessed by all ABW subscribers
in order to download the SOFTWARE and receive the HYPERFEED.
B. PCQ will provide a continuous HYPERFEED to the ABW servers; however,
PCQ will control the receipt of the HYPERFEED by ABW clients via a remote
access server on PCQ's site that will authorize each new ABW account. ABW
agrees to sign up all new subscribers to the co-branded service, including
execution of all applicable service and exchange agreements, will send to PCQ
the executed subscriber
<PAGE>
agreements before access to the quote servers will be provided to ABW clients
by PCQ. PCQ shall have the sole ability to authorize access to the market
data contained in the HYPERFEED by ABW clients.
D. PCQ and Townsend shall retain title and all copyrights or
proprietary rights to the SOFTWARE and HYPERFEED provided to ABW and ABW's
clients pursuant to the Agreement. ABW will not provide any unauthorized
access to the co-branded service, nor reproduce or redistribute the service
in any way.
E. ABW agrees to include the following in the co-branded pages
displaying quotes: "All quotes provided by PC Quote, Inc." ABW also agrees
to include the following disclaimer on the access page to the co-branded
service:
"PC Quote is not subject to liability for truth, accuracy, or
completeness of the market data information nor is PC Quote liable
for errors, mistakes or omissions in the data or for any delays or
interruptions in the end user's receipt of the data. PC Quote does
not warrant that the data provided may be relied upon for trading
purposes."
2. Term
A. [***] The effective date for purposes of this Agreement is the
contract date as specified on the signature page of this Agreement. Neither
PCQ nor ABW shall terminate or alter this Agreement except as stated herein.
B. [***] Notice expressing a desire to terminate this Agreement will
be sent by certified mail to the address indicated above. Said termination
will be effective as of the last day of the month in which this anniversary
occurs.
C. Notwithstanding the provisions of (A), and (B) above, should a party
to this Agreement be in material breach of the Agreement, the other party may
terminate the Agreement thirty (30) days after notice of said material breach
is received, and only if such material breach is not cured within thirty (30)
days of receipt of notice.
3. Payment For Service
A. Beginning with the date specified on the fee schedule attached
hereto as Schedule A, or upon completion of the Installation and testing of
all equipment and services, which ever is later. ABW will commence payment
of a monthly fee for the right to permit access by ABW's clients to said
SOFTWARE and HYPERFEED.
B. The charges for the services set forth in this Agreement shall be
invoiced monthly. ABW agrees to pay said charges within thirty (30) days of
the monthly invoice date. ABW may issue a purchase order for billing
purposes. The invoices must reference that purchase order number and be sent
to the "Bill To" address stated on the purchase order. The terms of this
negotiated Agreement shall supercede those contained on that purchase order.
C. All payments will be made in US Dollars drawn on a US bank. ABW
will provide a complete list of all clients using the format described in
Schedule B with each payment.
D. Any payments which have not been received by PCQ within thirty (30)
days of the Invoice date shall be subject to a FINANCE CHARGE of 1.0% per month
which is a corresponding ANNUAL
<PAGE>
PERCENTAGE RATE of 12% on the outstanding balance.
F. Any invoice submitted by PCQ shall be deemed correct unless ABW
advises PCQ in writing, within thirty (30) days of the receipt of the invoice,
that it disagrees with the invoice and specifies the nature of the disagreement.
G. Any sales, use, excise, value added and local property taxes will be
payable by ABW should such taxes be applicable.
H. In the event that any invoice is not paid by ABW within forty-five
(45) days after receipt, and when no discrepancy issues have been identified by
ABW which are in some stage of resolution, after giving notice to ABW, PCQ may
terminate this agreement and ABW's access to and use of SOFTWARE and HYPERFEED
provided hereunder unless ABW pays such invoice prior to the termination date
specified in the Termination Notice. The remedies contained herein are
cumulative and are in addition to all other rights and remedies available to PCQ
under this Agreement, by operation of law, or otherwise.
I. Upon termination as provided for in this Agreement, ABW will pay all
charges for services and fees for the entire month in which that termination
becomes effective.
4. Technical Support
A. ABW agrees to field all initial customer support requests and assist
its clients to the best of its knowledge and ability. If the support issue is
of a complex nature that ABW is unable to solve, ABW may forward the call on to
the PCQ technical support staff.
5. Exchange Authorization
A. The ABW hereby acknowledges and agrees that the HYPERFEED provided
under this Agreement contains market information obtained, selected and
consolidated by PCQ under the authority of various agencies, including but not
limited to, the New York Stock Exchange, American Stock Exchange, Pacific Stock
Exchange, Midwest Stock Exchange, Chicago Board Options Exchange, the Options
Price Reporting Authority, the Consolidated Tape Association, Chicago Board of
Trade, Chicago Mercantile Exchange/International Monetary Market, Kansas City
Board of Trade, Minneapolis Grain Exchange, Commodities Exchange Center, New
York Futures Exchange, Mid-America Commodity Exchange, and Consolidated Canadian
Group and that the ABW's use of the service for internal or external
redistribution of date is authorized and regulated by said agencies.
6. Limitations of Liability, Remedies On Default
A. The information and data used in the HYPERFEED and SOFTWARE
provided under this Agreement, including option prices, stock prices,
commodity prices, dividends, dividend dates, volatilities, deltas and other
variables, are obtained by PCQ from the various exchanges and other sources
which are believed to be reliable and PCQ agrees to run reasonable control
checks thereon to verify that the data transmitted by PCQ is the same as the
data received from the various exchanges and other sources. However, PCQ
shall not be subject to liability for truth, accuracy, or completeness of the
information received by PCQ from the various exchanges and other sources and
conveyed to ABW or for errors, mistakes or omissions therein or for any
delays or interruptions of the HYPERFEED or SOFTWARE from whatever cause.
This agreement does not violate any agency requirements and PCQ has the right
to enter into this agreement from its information providers.
B. PCQ shall not be responsible for, nor be in default under this
Agreement due to delays or failure of performance resulting from Internet
<PAGE>
Service Provider delivery problems or failure, or any communication or delivery
problems associated with the Internet in general. Furthermore, PCQ and ABW
shall not be responsible for nor in default due to acts or causes beyond its
control, including but not limited to: acts of God, strikes, lockouts,
communications line or equipment failures, power failures, earthquakes, or other
disasters. Should such an occurrence render the HYPERFEED or SOFTWARE
inoperable or unavailable for a period over ten (10) days, then ABW shall have
the right to discount their billing in proportion to the delay.
C. LIABILITY UNDER THIS AGREEMENT FROM ANY AND ALL CAUSES, INCLUDING,
BUT NOT LIMITED TO, PROGRAM MALFUNCTION OR OPERATIONAL NEGLIGENCE, SHALL BE
LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL CHARGES
PAID BY ABW FOR THE SERVICES DURING THE MOST RECENT TWELVE (12) MONTHS OF THE
AGREEMENT. SUCH LIMITATION SHALL BE THE EXTENT OF PCQ OR ABW'S LIABILITY
REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT
AGAINST PCQ OR ABW, AND THE FOREGOING SHALL CONSTITUTE PCQ'S OR ABW'S SOLE
REMEDY. IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR LOST PROFITS OR
SPECIAL INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH ABW OR PCQ INCUR
OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN
IF PCQ OR ABW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Exclusion of Warranties
It is expressly understood and agreed to by the parties hereto that EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE HEREBY EXCLUDED.
8. Confidentiality of Proprietary Information
A. ABW understands and acknowledges the proprietary nature of the
HYPERFEED and SOFTWARE provided by PCQ and that said HYPERFEED and SOFTWARE have
been developed as a trade secret of PCQ and at its expense. ABW agrees to hold
said information in the same manner as ABW deals with its own proprietary
information and trade secrets. Furthermore, ABW agrees not to attempt any
reverse engineering of the HYPERFEED to decode the signals used by PCQ in
transmitting the information.
B. PCQ understands the proprietary nature of any information belonging to
ABW, and recognizes the harm that can be occasioned to user by disclosure of
information relative to ABW's activities, PCQ agrees to hold such information in
the same manner as PCQ deals with its own proprietary information and trade
secrets.
C. PCQ acknowledges the confidential nature of ABW's use of the SOFTWARE
and HYPERFEED during the initial term of this agreement. Due to the unannounced
platform on which ABW shall make available its electronic service to its client
during this initial term, PCQ shall in no way disclose to other parties the
substance nor acknowledge the existence of this agreement. Any advertising or
disclosure of the relationship between the parties, use of either's marks, names
or reference by the other shall be approved by both parties prior to release.
9. Indemnification
A. ABW hereby agrees to defend, indemnify and hold harmless PCQ, its
employees, agents, successors and assigns, harmless, including reasonable
attorney's fees, from and against any of the following:
<PAGE>
1. Any and all claims, liabilities, and obligations claimed by any third
party or parties against PCQ and arising directly out of ABW's use of the
Service.
2. Any and all claims, liabilities, or obligations resulting from ABW's
misrepresentations, negligence, willful misconduct, breach of warranty or
non-performance of any of the covenants or obligations under this Agreement
or from any misrepresentations or omissions made by ABW to PCQ, including
specifically, but not limited to, any authority required of ABW pursuant to
Section 6 hereof.
B. Such indemnification by ABW shall only be effective if the claim,
liability or obligation claimed by the third party is in no way related to PCQ's
negligence, willful misconduct or failure to perform any of its obligations
under this Agreement.
C. PCQ hereby agrees to defend, indemnify and hold ABW harmless,
including reasonable attorney's fees, from and against any claim that the
SOFTWARE or HYPERFEED infringes on the patent, copyright or other proprietary
rights of another, including any and all claims, liabilities, or obligations
resulting from PCQ's negligence, willful misconduct, misrepresentations, breach
of warranty or non-performance of any of the covenants or obligations under this
Agreement.
D. Such indemnification by PCQ shall only be effective if:
1. The claim, liability or obligation claimed by the third party is in no
way related to ASW'S negligence, willful misconduct or failure to perform
any of its obligations under this Agreement.
2. ABW notifies PCQ promptly in writing of any claim or threatened claim
against ABW and thereafter cooperates with PCQ so that PCQ will not be
prejudiced in the defense, settlement or other handling thereof and ABW
permits PCQ, at PCQ's option and expense, to control the defense,
settlement or other handling of such claim.
10. Assignment
This Agreement or any rights or obligations granted hereunder may not be
assigned by ABW without the prior written consent of PCQ.
11. Applicable Law and Venue
This Agreement shall be interpreted, construed and enforced in all respects
in accordance with the laws of the State of Illinois, except with regards to its
rules regarding choice of law. Each party irrevocably consents to the
jurisdiction of the courts of the State of Illinois and the federal courts
situated in the State of Illinois, in connection with any action to enforce the
provisions of this Agreement, to recover damages or other relief for breach or
default under this Agreement, or otherwise arising under or by reason of this
Agreement.
12. Severability and Survival
A. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
B. The provisions dealing with indemnification and confidentiality and
any other section of this Agreement,
<PAGE>
unless specifically stated otherwise, which may reasonably be interpreted or
construed as surviving the completion, expiration, termination or cancellation
of this Agreement, shall survive the completion, expiration, termination or
cancellation of this Agreement.
13. Miscellaneous Provisions
A. The parties to this Agreement are independent contractors with
requisite corporate power and authority to enter into this Agreement and carry
out the transactions contemplated hereby. Neither party is a ABW or
representative of the other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an association, joint
venture or partnership between the parties or to impose any partnership
obligation or liability upon either party.
B. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be deemed
to have been delivered and given for all purposes, (i) on the delivery date if
delivered personally to the party to whom the same is directed, or (ii) three
business days after the mailing date, whether or not actually received, if sent
by registered U.S. mail postage and charges prepaid, to the address of the party
to whom the same is directed as set forth in the introductory paragraph of this
Agreement. Either party may change its address specified above by giving the
other party notice of such change in accordance with this Section 13.B.
All notices delivered to ABW shall be delivered to the address above,
attention:
Harry Simpson
AB Watley
C. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision of right in that or any other instance; rather, the same shall be
and remain in full force and effect.
14. Entire Agreement
A. As used herein, the term "Agreement" includes any written amendments,
modifications or supplements made in accordance herewith.
B. ABW and PCQ acknowledge that they have read this Agreement, understand
it, and agree to be bound by its terms and further acknowledge and agree that it
constitutes the entire agreement of the parties hereto and supersedes all other
proposals, oral or written, and all other communications between the parties
relating to the subject matter hereof and this Agreement may not be modified or
terminated orally. No amendment to this Agreement shall be effective unless it
is in writing and signed by duly authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement.
AGREED TO:
PC QUOTE, INC.
By: /s/ Richard F. Chappeto
-----------------------------
Name: Richard F. Chappeto
Title: Vice President
Date: 10-11-96
----------------------------
A.B. WATLEY, INC.
By: /s/ Steven Malin
------------------------------
Name: Steven Malin
----------------------------
Title: Director
---------------------------
Date: 10-11-96
----------------------------
<PAGE>
SCHEDULE A
TO THE CO-BRANDING AGREEMENT BETWEEN
PC QUOTE, INC. AND A.B. WATLEY, INC. DATED OCTOBER 11, 1996
SCHEDULE OF SERVICES AND FEES
[***]
By: PC Quote, Inc. By: A.B. Watley, Inc.
/s/ Richard F. Chappeto /s/ Steven Malin
- -------------------------------- -------------------------------
<PAGE>
[LOGO]
AMENDMENT TO SECTION 2, PART B OF THE CO-BRANDING AGREEMENT
This amendment to Section 2 (titled "Term"), Part B of the Co-Branding
Agreement is made effective December 9, 1996 by and between PC Quote, Inc.
(hereinafter referred to as "PCQ") and A.B. Watley, Inc. (hereinafter
referred to as "ABW"), who are also the parties contracted in the
aforementioned Co-Branding Agreement. This Amendment shall apply to said PCQ
and ABW and all of their subsidiaries and related companies.
[***]
AGREED TO BY:
/s/ Steven Malin /s/ Howard Meltzer
- -------------------------- ---------------------------------
A.B. Watley, Inc. PC Quote, Inc.
Mr. Steven Malin Mr. Howard Meltzer
Director President
Date: 12/5/96 Date: 12/12/96
-------------- ----------------
<PAGE>
[LOGO]
SECOND AMENDMENT
TO
CO-BRANDING AGREEMENT
THIS SECOND AMENDMENT TO CO-BRANDING AGREEMENT (this "Amendment") is
made and entered into, effective for all purposes and in all respects as of
the 23rd day of February, 1998, by and between PC QUOTE, INC., with its
principal place of business at 300 South Wacker Drive, Chicago, Illinois
60605 ("PCQ") and A.B. Watley, Inc., with its principal place of business at
33 West 17th Street, New York, New York 10011 ("ABW").
WHEREAS, PCQ and ABW have executed that certain Co-Branding
Agreement dated October 11, 1996, as amended on December 10, 1996 (as so
amended, the "Agreement");
WHEREAS, the parties hereto desire to further amend the Agreement to
modify the provisions of the Agreement regarding [***] of the term thereof;
and
WHEREAS, the parties hereto desire to set forth herein the terms and
conditions of their agreements and understandings with respect to the
foregoing.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises for the parties contained herein and of other good valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending legally to be bound, hereby covenant and agree
as follows:
1. The preamble hereto is incorporated herein and, by this
reference, is made a substantive part hereof.
2. The text of Section 2. A. and B. of the Agreement is hereby
deleted in its entirety and the following language is inserted in its stead:
[***]
<PAGE>
3. To the extent, if any, that provision of this Agreement
conflicts with or differs from any provision of the Agreement, such provision
of this Second Amendment shall prevail and govern for all purposes and in all
respects.
4. Except as modified hereby, the Agreement and its terms and
provisions are hereby ratified and confirmed for all purposes and in all
respects.
5. This Second Amendment may be executed in several counterparts,
each of which shall be deemed an original but all of which collectively shall
constitute the same instrument.
IN WITNESS WHEREOF, the undersigned parties have hereunto affixed
their signatures and seals as of the day and year first above written.
PC QUOTE, INC.
By: /s/ Scott Clyde
------------------------
Name: Scott Clyde
----------------------
Title: VP
--------------------
A. B. WATLEY, INC.
By: /s/ Robert Malin
------------------------
Name: Robert Malin
----------------------
Title: President
--------------------
-2-
