TRADING TECH EXHIBIT 2082
`TD Ameritrade v. Trading Technologies
`CBM2014-00135
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`Case: 1:10-cv-00882 Document #: 55 Filed: 02i04l14 Page 2 of 47 PageID #:458
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`patent"), 7,904,374 (“374 patent”), and 7,930,240 (“240 patent"). Stellar has received
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`and reviewed a copy of the Complaint and Amended Complaints filed by TI in this
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`action.
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`2.
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`The claims relating to all patents—in—suit other than the ‘41 1, ‘768 and ‘314 patents
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`were resolved in a Consent Judgment entered by this Court on January 24, 2013. At the
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`time, there was an appeal pending of findings by this Court of invalidity of the asserted
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`claims ofthe ‘41}, ‘768 and ‘374 patents. On August 30. 2013, the U.S. Court oprpeals
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`for the Federal Circuit reversed this Court's findings of invalidity with respect to the
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`‘41 l. ‘768, and ‘3 T4 patents and remanded for further proceedings.
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`3.
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`This Court has jurisdiction over the parties to this action and over the subject
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`matter ofthe Complaint with respectto the ‘411, ‘763, and ‘3'i'4 patents.
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`4.
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`T1" is the sole and exclusive owner of the patents—musuit asserted by TT, and has
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`the right to sue upon, and recover damages for past infringement and enjoin future
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`infringement ofthe patents-in-suit.
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`5.
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`6.
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`All claims ofthe ‘41 1, '768, and ‘374 patents are valid and enforceable.
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`Stellar has infi'inged the ‘411, “768 and ‘374 patents under 35 U.S.C. Section 2'71
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`by making, using, selling, offering for sale,
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`importing endlor otherwise distributing
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`electronic trading software referred to as the Stellar fi'ont end software. Documentation
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`describing the Stellar front end software is included in Exhibit 2.
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`7.
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`Defendant Stellar,
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`its officers,
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`directors,
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`partners, members,
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`afi‘iliatee.
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`subsidiaries, assigns, and successors—in—interest are hereby permanently enjoined (unless
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`expressly permitted by TI‘ dining the terms of the ‘411,
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`'768 and ‘374 patents) from
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`infringing the '411. “768 and '374 patents respectively, including, Without limitation, by
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`the making, using, selling, offering for sale, importing, and otherwise distributing in the
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`United States the electronic trading software products referred to in paragraph 6 above
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`including. without limitation, for use in electronically trading any item (e.g.. fumes,
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`options, equities, fixed-income products, etc.)
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`8.
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`The Settlement Agreement resolves all claims currently before this Court in this
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`action.
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`9.
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`This Court shall retain jurisdiction over this case for purposes of enforcing the
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`Consent Judgment and the Settlement Agreement between the parties pursuant to which
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`the Consent Judgment is filed.
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`10.
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`The right to enforce this Consent Judgment shall transfer to any successor~inv
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`interestto'I'I‘.
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`11.
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`Each party shall bear its own costs and attorneys’ fees.
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`[Signatures an Fallowbrg Page]
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`Case: 1:10-cv-00882 Document #: 55 Filed: 02f04f14 Page 4 of 47 PagelD #:460
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`SO ORDERED
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`Dated: gr élz¥
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`AGREED TO:
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`Dated
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`-"Sigmond Jr. (1D No.6204980)
`MatthewJ. Sampson (ID No. 6207606)
`McDonnell Boehnen Hulbert & Bergh off LLP
`300 South Wacker Drive
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`It;
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`Dated: :va’Zq,‘ZaI4
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`Chicago, IL 60606
`Tel; (312) 913—0001
`Fax: (312) 913-0002
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`Attorneys for Plaintiff
`TRADING TECHNOLOGIES
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`INTERNATIONAL, INC.
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`mm
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`Ralph J. Gabric (ID No. 6193485)
`Marc V. Richards (ID No. 621674?)
`Mircea A. Tipescu (ID No. 6276053
`Brinks Hofer Gilson & Lione
`NBC Tower — Suite 3600
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`455 N. Ci‘tyfront Plaza Drive
`Chicago, IL 60611—5599
`Tel; (312) 321-4200
`Fax: [312} 321-4299
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`Attorneys for Defendants
`Stellar Trading Systems, Ltd. and
`Stella:- Trading Systems, Inc.
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`Case: lzlo-cv-OOBBZ Document #1 55 Filed: 0230414 Page 6 of 47 PagelD #2462
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`AMENDED SWMENT AGREEMENF
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`THIS AGREEMENT (the “Amended Agreement”) made this 7th day of December, 2012
`{“13er Date") is by and between Trading Technologies International. Inc. ("TT"), 8
`Delaware corporation with its principal place of business 31222 South Riverside Plaza, Suite
`1 100, Chicago, Illinois. 60606, and Stellar Trading Systems_l..imited and Leadmhell
`Electronic Trading Software Limited (trading as Stellar Trading Systems), each an English
`limited compmy with its registered office at 24 Cami-till. London EC3V 3ND, United
`Kingdom and Stellar Trading Systems. Inc. a Delaware corporation with its principal place of
`business at 101 N. Wanker Drive Chicago. Illinois 60606 (collectively “Stellafl. Each party
`herein also referred to as “Party“ and collectively as “Parties.“
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`WHEREAS. TT owns U.S. Patents Nos. 6.766.304 {”304 patent“ , 6,772.132 {‘"132
`palm"), 7,587,357 (“357 patent"). 7,613,651 (““651 patent"). 7.212.999 (“999 patent").
`7,533,056 (”056 patent"), 7,676.41] (“’411 patent”), 7,693,768 (”763 petal”),
`7,725,382 (”382 patent“), 7,813,996 (“9'96 patent"), 7,904,374 (”374 patmt") and
`7,930,240 (“‘240 patent”) (collectively referred to as the “Patents—in-suit");
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`WHEREfiS, thcre is a civil action pending in the United States District Court for the
`Northern District ofIIlinois. Eastern Division, Civil Action No. 10 CV 8&2. which was
`consolidated with Civil Action No. It] CV 715 [the “anamit'j in which TI‘ has charged
`Stellar with infringement ofthe Patents-in-snit;
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`WHEREAS. there is an appeal pending in the United States Com of Appeals for the
`Federal Circuit (“Federal Circuit“) fine: the Lawsuit (Case No. 2012-1533) relating to
`findings of invalidity ofthe ‘41 1, ‘75:]. and '374 patents (“the Appeal”);
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`WHEREAS, TT and Stellar wish to settle all issum with impact to claims of
`infringement of the Pctmts-in—suit still pending in the Lawsuit and wish to settle claims
`of infringement with respect to the ‘4] l, "268 and ‘374 patents depending on the outcome
`ofthe Am. which will continue;
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`WHEREAS. T? and Stellar Wish for this Amended Agreement to supersede and replace
`the settlement agreement signed by TI and Stellardnted November 16. 2012.
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`NOW, THEREFORE, in consideration ofthe mutual covenants contained herein, Ti“ and
`Stella: agree as follm:
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`ARTICLE 1: DEFINITIONS
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`“Afiiliate” means, with respect to any relevant Person at any particular time, any entity
`that, at that time: (i) controls; (ii) is controlled by; or (iii) is controlled by a Person that
`also controls such relevant Person, where "control" includes director indirect control,
`including any subsidiary, holding cornpeny or operating division of such Person from
`time to time. For nvoidsme of doubt. an entity shall he considered to be an Affiliate of
`such Person only so long as such control is in efi‘ect.
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`“Always Centered Trading Screen" means an electronic trading screen on which trades
`may be made to an Exchange that displays at least One indicator representing the best bid
`andlor beet ask price relative to a range of price levels in which the best bid price, best
`ask price or last traded price is continuously displayed in the center of the displayed
`range ofprices (i.e., the carter cell or one off ofthe center cell ii‘an even number ofrows
`are displayed]. To qualify as an Always Centered Trading Screen, there can never be a
`mode or condition in which continuous di5pley of the best bid price, best flik price orlsst
`traded price in the center described above does not occur. For example. the continuous
`display of such type of price in the center-can never be disabled in anyway (cg. med
`off by user, turned off by software, temporarily disabled based on a location of mouse
`pointer, etc.).
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`“Automatic Repositioning Ladder” means a LadderIII which when the relevant market
`infimnntion changes such that the at lean one indicator no longer commode to any of
`the displayed range ofprice levels, the displayed range ofprice levels'18 automatically
`(amide of the weird ofthe user) repositioned to cosine that the at least one indicator
`remains displayed on the screen. In an Automatic Repbsih'oning ladder, the at least one
`indicator can never be permitted to move off the screen. The cinematic repositioning
`must result in all of the price levels of the displayed range of price levels instantly
`changing positions. To qualify as an Automatic Repositioning Ladder, there can never be
`a mode or condition in which automatic repositioning described above does not occur.
`For example, the automatic repositioning can never be disabled in anyway {e.g., turned
`ofi‘by user, meted ofi‘ by software, tflnporarily disabled based on a location ofmouse
`pointer, etc).
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`“Broker" means a Future: Commissions Merchant ("FCM"), a brokerldeeier and/or an
`equivalent Person.
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`“Current Affiliates" means Afliliales ofa Party as ofthe Execution Date that have
`widens-ken to be bound by this Agreement pursuant to Section 8.2.
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`“Current Contracts" means thrones, options on fumes, currency cash products, fixed-
`income cash products, options on stocks and options on stock indexes that are in
`eidstence and actively traded electronically on an Exclmnge as of the Execution Date and
`all stocks and exchange traded stock funds (“Ellis").
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`“Drifi'ing Ladder" means 2 Ladder in which immediately after each and every change of
`nm-ket information that causes the at least one indicator to move relative to the displayed
`range of prices, the at least one indicator and the displayed range of price levels scrolls or
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`driflaback towardsthcoenteratthemcofat least 9 pixeispersecond. To qualify ass.
`Drifting Ladder, fliers can never be a mode or condition in which scrollingfdrifiiag
`immediately after each and every change of nmrket infonnation described above does not
`ooctu. For example, the dfifiiogfsuolling can never be disabled in any way (e.g.. trrrned
`off by user. tinned oi’fby software, temporarily disabled based on a location ofmouse
`pointer, etc).
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`“Effective Date" means the date upon which the Court enters the Consent Judgment
`attached as Exhibit A.
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`“Electronic Trading Software" means software that permits an End User to elmnically
`send orders to buy or sell to an electronic exchange andtor that sends orders on behalf of
`End Users to an electmnic exchange.
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`“End User" means any individual with direct or indirect access to Permitted Products ore
`TI product on any computing device, including, but not limited to. a. computer.
`workstationI or server.
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`“Exchange” means (i) any exchange, market or similar entity for trading futures, options
`on futures. currency cash products, stocks, or options: that is designated as such by a
`recognized governmental regulatory agency; (ii) an inter-dealer brokerage that acts as an
`intermediary between dealers to trade fixed income cash (bond) products; trod/or (iii)
`with respect to currency product markets. any bank or other entity that makes markets for
`currency products.
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`“Have Mtde" or "Having Made" means having any product created with the assistance of
`third parties to a Party‘s specification and at a Party’s direction and control. In no event
`shall eHachader-ightgmmedtoaPanybeiatcrpretedto includearight forthatParty
`or any Other Person to grant a sublicense to any third parties to utilize any licensed
`patents for any purpose other than creating or modifying the Permitted Products on that
`Party's hehalfas set forth herein.
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`“Ladder" means an electronic trading screen on which trades may be made to an
`Exchange that displays at. least one indicator representing the best bid aodlor best ask
`price relative to arrange of price levels (any level of which the at least one indicator may
`be displayed against) such that the at least one indicator moves relative to the range of
`price levels when the relevant market information changes. For clarity, the indicator is
`merelyan indication ofwhatthebectbidorbestaskwiceisatapartioulartimcanddoes
`nor need to have the same visual appearance from mommt to moment (cg, if the
`indicator is a. numeral also indicating the current amount of quantity available at the best
`bid or as]: price, the corneal may he dynamically dranging from moment to moment).
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`"TT Patents” means the ‘056 parent. the “999 patent and us. Patent No. 7,630,724 (“the
`‘724 patent”) and any reissue or reexamination thereof. 11‘ Patents shall also include any
`11.8. continuation andIor divisitmal thereof to the extent such a patent claims subject
`matter necessary to implement a trading screen that displays bids and asks relative to a
`price axis and that (a) permits order entry with a default quantity at locations
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`corresponding to the price axis or (b) permits order indicators to be moved from one
`location to another location coneeponding to a level of the price axis. TI‘ Patents shall
`also include any U .S. patent owned or exclusively lioensed (with the right to sublioense)
`by T1“ andlor any TT Alfiliate during the Term of this Agreement which covers
`teclmology necessary to implement a Permitted Product. Notwithstanding anything
`herein to the contrary, 't'T Patents shall not include {by way ofan example) U.s. Patent
`No. 7,412,416 as this continuation patent does not cover technology necessary to
`implement a unding screen that displays bids and asks relative to a price axis and that (a)
`pennits order entry with a default quantity at locations corresponding to the price axis or
`(1:) permits order indicators to be moved from one location to another location
`corresponding to a level of the price axis.
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`"Person" nuns (i) any individual, corporation, partnership. limited pmtnership, limited
`liability company, joint venom, u-ust. foundation. or other business entity, (ii) any non—
`profit trust. enterprise. or tutitution. or (iii) any govenunemnl subdivision. agency, or
`entity.
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`"Permitted Produd" means an Always Centered Trading Screen made artdlor Have Made
`by STELLAR and used, sold, offered for sale, imported or otherwise dieuibmed by or for
`STELLAR in the United States that is covered by one ormore claims of the TT Patents.
`For clarity, a Permitted Product includes an Always Centered Trading Screen performing
`a method covered by one or more claims of the TT Patents. Pcnnitlcd Products are
`limited to the extent such software can be used to electronically trade Current and
`Subsequml Conn-acts. A product is only a Permitted Product ifil. connects to an
`Exchange using STELLAR Sofiw'are with the STELLAR front end. and is not a
`Permitted Product if it only use: the STELLAR front end and no other STELLAR
`Sofiware to connect to an Exchange. This does not restrict STELLAR’S ability to embed
`connectivity to exchanges- that has been developed by third parties. Pmniued Products
`shall not include any product that is not an Always Centered Trading Screen (e.g..
`Permitted Products shall not include 3 Ladder}.
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`“STELLAR” m Stellarand any of its Affiliates.
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`“STELLAR Patents" means all [1.5. patenm that are owned or exclusively licensed (with
`the right to sublicense) by STELLAR and that (i) are issued as ofthe Effective Date
`("Jared STELLAR Patents") andfor (ii) may issue in the film based on any patent
`application filed as of the Efi‘wdve Date. STELLAR Patents shall also include any US.
`continuation, divisional, reissue and/or reexamination of any Issued STELLAR Patent.
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`“3m Software” means software made endlor Have Made by STELLAR and used,
`sold. offered for sale, imported or otherwise distributed by or for STELLAR in the United
`Stones for electronic trading.
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`“Subsequent Connects" means futures, options on futures, currency cash products. fixed
`income cosh products. Options on stocks. and options on stock indexes that become
`actively traded electronically on an Exdtnnge that are substantially similar to Current
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`Contracts. For example and without in any way limiting the foregoing, a contract based
`upon the outcome of a presidential election would not he :1 Subsequent Contract.
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`‘Term" means the period commencing on the Effective Date and ending on the last to
`expire ofthe TI' Patents or an earlier mutation date as allowed herein, whichever
`occms first.
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`ARTICLE 2: COVENANT NOT TO SUE
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`Subject to the receipt of any psytntmts required by Article 3, TT hereby agrees
`2. l .
`and covenants not to sue or assert any claim, right, demand, lawsuit. or action against
`STELLAR and its directors, officers, members. employees. agents. attomeys, and Current
`Affiliates for patent infiingement (including inducement and contributory infi-ingcment)
`of any ofthe "T1“ Patents" (as defined above) during the Term of this Agreement for
`STELLAR making, Having Mode. using. selling. offering for sale, importing or
`otherwise distributing in the United States any Permitted Products. The foregoing
`comment not to sue is nonexclusive, non-transferable {exec}: to a pennittcd succeomr in
`interest) and Without the right to sublicensc. Notwithstanding the foregoing, TT
`covenants not to sue STELLAR’s customers artdior STELLAR'S End Users for patent
`nan-ingemem (including inducement and contribtacry infringement) of any of the TT
`Patents for their use ofPermitted Products that are obtained from, or given access by.
`STELLAR both prior to ad during the Term of this Agreement. TI is making the
`cement not to one ofthis Section 2.! despite the fact that a Permitted Product my be
`covered by one or more claims ofthc '1'? Patents. The covenant not to sure ofthis Section
`2.1 does not apply to any products that do not qualify as a Permitted Product
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`STELLAR shall discontinue and disable both its Stellar front end soflwarc
`2.2.
`(original release) products Ind Stellar fiont end software (Nov. 2.010 release) products
`sold or offered for sale in the United States and replace them with an Always Centered
`Trading Screen during 3 Transition Period. which is defined as 60 days from the
`Execution Date of this Agreement. Beginning on the expiration of the Transition Period
`and timing the terms ofthe '132, ‘304‘ ‘411, ‘357, ‘65 l, ‘768, '332, 374 and ‘996 patents.
`STELLAR agrees not to make, Have Made. use. sell. offer for sale, itnport or otherwise
`distribute in the United States any products covered by any claims of the ‘132, '304,
`‘4]1,‘357,‘651.'768,‘332,'374 and *995 mm, respectively. that hm not been
`found to be invalid or tmcnforceable in a final non-appealahle judgment. This restriction
`applies to any demonstration including but not limited to working demonstrations
`oonnectodmesimulator.animafion3.andcanncdorrecorded footagcofsoftware. As
`partial comridemtion for the covenant not to sue granted by TI' to STELLAR, STELLAR
`does not contest that (i) an Automatic Repositioning Ladder or aDrifiing Ladder with
`single action order entry at locations corresponding to a price axis (“Ame Repositioning
`Single Action Ladder” or “Drilling Single Action Ladder") is covered by at least the
`ituiependcnt claims ofthe ‘41 1. “763 and ‘374 patterns, (ii) that an Auto Repositioning
`Single Action Ladder or aDrifllng Single Action Ladder that also permits multiple single
`action orders at locations corresponding to the price axis without requiring the quantity to
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`be reset is also covered by at least the independent claims ofthe ‘996 patent. and (iii) that
`an Auto Repositioning Single Action Ladder or a Drifting Single Action Ladder that also
`pmnits single action cancellation of Working orders relative to the price axis is also
`covered by at least the independent claims oflhe ‘382 patent.
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`2.3. As partial consideration for the covenant not to sue granted by T1" to S'l""r3l.rLAii'1
`STELLAR hereby grants to ‘IT and 1T5 Affiliates a non-exclusive, non-transferable
`license (without the right to sublioense) under STELLAR Patents during the Term of this.
`Agreement to make, Have Mode. use. cell, otter to sell, import and otherwise dishibllle in
`the United States any products and practice in the United States any methods 00de by
`the STELLAR Polaris. Notwithstanding the foregoing. STELLAR covenants not to sue
`'t'r androi- Ti" 3 Afiiliates‘ customers and/or End Users for patent infiingemerrt for their
`use of products that practice at lean one claim under STELLAR Patients that are obtained
`from, or given access by. TI and/or TT’s Affiliates both prior to and during the Tenn of
`this Agreement.
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`Exoept as provided forin Section 2.3, nothing in this agreement shall be
`2.4.
`construed as providing any license. either express or implied, under any intellectual
`property. Except as provided for in Sections 2.1, 6.2.1. and 6.2.2. nothing in this
`Agreement shall be construed as providing any covenant not to sue under any intellectual
`property not specifically noimd herein. By way ofemmple, 'l‘T grants no license to
`STELLAR under any non-US. patents. and STELLAR grants no license to TTunder any
`non-U5. patents.
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`ARTICLE 3: PAYMENT AND RELEASES
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`3.1. Within seven {7) business clays of the Efl‘ective Date. STELLAR shall make a
`one-time payment to TT of one hundred ten moment! dollars (5110.000). This payment
`represents a discounted estimation of STELLAR’s pastdamages for past infringement by
`Virtue of STEILAR’S prefious making, using. selling. ofi‘erh'tg for sale, importing and/or
`otherwise distributing of STELLAR Software in the United States. The payment amount
`was calculated by applyinga discounted rate ofSJ D perside for firtures and $1.00 per
`million dollar increment for fixed income cash to all afirnated trades resulting from
`orders entered andfor modified in any Ladder in SFELLAR Soflwere and to twenty
`percent (20%) oh!!! calmed trades restdfing from orders entered. otherwise but that
`were accessible by 3 Ladder in STELLAR Software during the lifccyclc of the order.
`"the one-time payment amount shall he non—refimdahle. The payment amount is based on
`STELLAR‘s boss estimates ofvolumee using infringing sofiware mode during the period
`from May 2009 to the end ofthe Transition Period in the United States. STELlAR
`representsmdmrmtsdrarpfiortotheExecufion Dmitssofiwsrehasonlybwnused
`to electronically trade in the U.S. futures, and options on fixtures, and fixed income cash
`(bond) products and not oft-ret- asset classes.
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`The Parties agree that the one—time payment set forth in Section 3.! above is a
`3.2.
`discount from the reasonable value ofa license under the patented innovations. For
`example. STELLAR acknowledges that {i} many of the patented innovations provide on
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`advantage to Exchanges. FCMS and electrtmic traders such that the itmovnfloos increase
`the profitability of each of these entities and (ii) for an Exchange, FCM, and merry traders
`that orivmtage is greater than the paymt set forth above. but rather would amount to a
`portion ofthc entity‘s profits which could be larger than such payment.
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`In exchange for the ore-time payment required by Section 3.1, Ti‘ and its Camel
`3.3,
`Affiliates hereby release, acquit and forever discharge STELLAR and its directors,
`oflicers, members. enrployeeo. agents, attomeys, and Cmront Affiliates from any and all
`claims, oomterclaims (including compulsory coumerclaims that could have been brought
`in the Lawsuit) or liability for infi‘ingcmmt (including inducement and contributory
`infiingement), known or unknown. ofnny of the Pawns-imam by the manufactme,
`importation, use, sale, offer for sale, lease, license, offer for license or other disposition or
`distribution of STELLAR Software prior to the Execution Date. 11' and its Current
`Afiiliaxes further release. acquit and forever discharge STELLAR‘s customers andfor End
`Users from any and a}! claims, cormterclaims or liability for infringement {including
`inducement and oontritnuory infiingemmt), imown or unknown, of any ofthc Patents-in-
`suit by the use, sale. offer for sale, importation or other disposition or distribution of
`STELLAR Software obtained fi'orn, or given access by. Stellar prior to the Execution
`Date.
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`Stellar and its Current Affiliates hereby release. acquit and forever discharge 'IT
`3.4.
`and its Current Affiliates. directors, oflioers, members. agents, attomeys, employees and
`all persons acting by.tl1mugh, under, orinoonoert with them ofand from mend all
`claim, counterclaim: (irwludr'ng omnpulsory counterclaims that could have been brought
`in the Lawsuit) or liability, lmovm or unknown, (1') relating to the Painnts-in-suit audio:
`the Lawwitnnd arising prior to the Execution Dale and (ii) for infringement (incIuding
`inducement and oontribulon' infringement) of any STELLAR Patents by the
`mmrfaoture, importation, use, sale, offer for sale. lease. license, offer for license or other
`disposition or disuibution of any products prior to file Execmion Dare.
`
`The payment due to IT pursuum to Section 3.! shall be paid by wire transfer to
`3.5.
`the lbllouing acommt:
`
`mm
`
`JPMorgan Chase Bank, NA.
`10 3. Durham 35'h Floor
`Chicago, IL 60603
`we: Transfer Dept: (888) 434—3030
`Account Name: Trading Technologies. Inc.
`Account #: 5300066087
`Routing #: {12100062 1
`Swift #: CHASUSJB
`
`
`
`
`
`Page 12 of 58
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`45
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`TTX033591
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`Page 12 of 58
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`

`

`Case: 1:10-0V-00882 Document #1 55 Filed: 02l04l14 Page 13 of 47 PagelD #:469
`
`ARTICLE 4: PATENTW6
`
`Promplly following the Effective Date and throughout the Term, STELIAR shall
`4.1.
`mark its Permitted Products in the US. with the following nolation in a mono: to be
`approved by TI. which approval shall not be measurably withheld (cg, on a splash
`screen and/or an about box}: “Use permitted under Trading Technologies International.
`b1c.'s U-S. Palm! No. 7,533,056, 7,2l2,999 and 7.680324".
`
`From the Effective Date and throughout the term of this Among in
`4.2
`recognition that additional patents. such as for example. continuation nndior divisional
`patentstndrefirturemay fall wiflfinnlescopeofTTPoImSTELLARshnll mark
`Permitted Products in the U.S. as W instructed by T1" with the following notation in?
`a manner to be approved by IT, which approval shall not be unreasonably withheld (e.g;.
`on a splash sot-on amlror about box): “Use per-mined under Trading Technologies
`finer-national, 111035 US. Pan-mt Nos. [INSERT APPLICABLE PATENT NUMBERS
`PER TT’S msmucr'IONsV
`
`'
`
`'
`
`STELLARagreesthalTT,fiomtimetotime,cnnnmendthc form oflherequirod
`4.3.
`notice sol forthin Section 4.1mdloroffinmenotiocspursunntro Secfion 4.2 to require '
`STELLAR to mark other T1" Paints than the palms identified in the current instruclions
`or to remove polems identified in the current insiructions by providing STELLAR with
`written notice ofrbc specific patemfs) lo be marked and the type ofpmducds} on which
`such Moods) should be marked, prom'ded however, that such revised noticao may only -
`include rcfereooa to patents that contain at least one claim that cover a foam: in the
`product identified. Any such marking shall be done in a reasonable manner to be
`approved by TY. which approval shall not be wreasonably withheld {c.g.. on a splash
`screen andiox an about box) and shall state “Use permitted under Trading Technologies
`International. Inc‘s [the relevant parent(s)]."
`
`TT shall indemnify, defend, and hold harmless STELLAR and its directors,
`4.4.
`oflioers. members, employees (“Indemnified Entities") fiom and against any and all
`liabilities. obligarions, looses, penalties, actions, suits. claims. damages. and reasonable
`actual our-of-poclccl expenses (including reasonable attorneys“ fees) that arise out ofa
`claim made or action lbrealened against STELLAR alleging STELLAR’s false marking
`of IT Patents based on STELLAR‘S compliance with this Anicle 4, provided that
`STELLAR:
`'
`
`4.4.1. notifies ”IT in writing as soon as reasonably practicable afici- becoming
`aware ofany claim or dreamed action;
`
`4.4.2. notifies TT in writing as soon as reasonably practicable regarding all
`olficial and unofficial contacts weanling such claim or action:
`
`4.4.3. affords reasonable assisiance to T? (but only at the sequent ofTT) in the
`defense ol'soeh claim; and
`
`4.4.4. allows 1"!" full control of the defense oftbe claim (including any
`compromioe related to the claim) on S'I‘ELLAR’S behalf: provided that 11' will not
`
`8
`
`
`
`Page 13 of 58
`
`_ '
`
`TTX03
`
`359146
`
`Page 13 of 58
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`

`

`
`
`Case: 1:10-0V-00882 Document #1 55 Filed: 02l04l14 Page 14 of 47 PagelD #:470
`
`without STELLAR’S prior written approval, wtu‘ch approval will not be Unreasonably
`withheld or delayed. enter into any settlement or compromise, or agree to anyjttdgment
`that requires an admission from STELLAR or any monetary payment by STELLAR.
`
`Nomitbstanding anything herein to the cookery. TT shall have no liability for and
`4.5.
`no obligation to defend any STELLAR or any Indemnified Entity against, any claim of
`false marking to the extent such claim arises from STELLAR‘s failure to comply with
`'I'T's instructions regarding marking pursuant to Sections 4.1-4.3.
`
`The remedies set forth in Section 4.4 shall be STELLAR‘s sole and occlusive
`4.6.
`remedy and Ti“: sole and oxolusive liability in the event of any false matting claim.
`
`In the event STEUAR has a good faith belief that a-prodnct change results in its
`4.7.
`current matting pursuant to TF3 instructions as “moment, then STELLAR shall notify
`TT ofeudt belief.
`
`ARTICLE 5: TERM. WATMN AND ASSIGNABILITY
`
`This Agreement shall become efi'ective upon the Effective Date tetraoctivo to the
`5.1.
`Execution Date and shall remain in fiill force and efi'ect until the earlier of the expiration
`of the Term or all unexpined TT Patents have been found to be invalid or unenforeeeble
`in a final non-eppeelabie judgment. miles: it is terminated earlier as permitted in this
`Agreement. Upon the expiration of the Term or any earlier tenninalion, all provisions of
`this Agreement (inclining any license rights granted herein) shall terminate except as
`provided in Section 5.5.
`
`Any Party to this Agreement (a “Nailing Pony"), in addition to any other
`5.2.
`remedies that it may have, may at its election terminate this Agreement, effective upon
`written notice to another Party (an "Afi‘ected Party“). in the event of a material default or
`material bteach by the Afi'ected Party of any of its obligations under this Agreement
`which default or bunch remains uncured thirty (30) days after the Nofiiying Party gives
`the Aiiected Party written notioe thereof. T1“. in addition to any other remedies it may
`have. may elect to terminate this Agreement. effective upon mitten notice to STELLAR.
`in the event any ofthe following actions is committed by or occurs with respect to
`STELLAR: (i) STELLAR'S admission in editing of its Inability to pay its debts
`generally as they become due or melting ofan assignment for the benefit of creditors; (ii)
`S‘I‘ELLAR‘S institution of or consent to the filing of a petition in bankruptcy; (iii) the
`appointmem ofe receiver for all or substantially all of the pmpmty of STELLAR; (iv) the
`institution by STELLAR ofany proceedings for the liquidation or winding tip of
`STBLIAR'sbusiness or the termimtion ofits corporate charter; (v) a court's
`detenninetion that the STELLAR is bankrupt tit-insolvent; or (vi) STELLAR’S Ellen: to
`make any other payment required herein Upon termination of this Agreement,
`STELLAR shall remain obligated to provide an accounting for and to pay all monies due
`to'iTnptothcdateoftheterminnt-ion.
`
`This Agreement shall be binding upon and inure to the benefit ofthe Parties
`5.3.
`mined herein and their respective smote and permitted assigns. STELLAR shall not
`
`
`
`Page 14 0f 58
`
`
`
`TTX03
`
`359147
`
`Page 14 of 58
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`

`

`Case: 1:10-cv-00882 Document #1 55 Filed: 02t'04l14 Page 15 of 47 PagelD #1471
`
`be pennined to transfer orassign any rights granted hereunder without TF3 priorwrinen
`approval. any such attempted assignment shall be void, and upon the occtn-rence of any
`such attempted assignment, T‘l‘ may, to its sole discretion. terminate the Agreement after
`no lessfimnioety (90) days prior written notice to STELLAR. In the event that
`STELLAR or TT (i) merges. consolidates. sells or transfers all or ntbstantially all of its
`assets or owuersbip interest to athird party. (ii) merges