Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Amendment No. 2 to Form S-4 142 611K
2: EX-2.2 Form of Agrmnt & Plan - Cme Trans Co & Registrant 8 29K
3: EX-3.3 By-Laws of the Registrant 20 82K
4: EX-5.1 Opinion of Sidley & Austin 2 12K
5: EX-10.1 Exchange Omnibus Stock Plan 20 73K
6: EX-10.13 License Agreement Effective September 24, 1997 28 107K
7: EX-21.1 Subsidiaries of the Registrant 1 5K
8: EX-27.1 Financial Data Schedule 2 7K
EX-10.13 — License Agreement Effective September 24, 1997
Exhibit Table of Contents
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Exhibit 10.13
Chicago Mercantile Exchange Inc.
Registration Statement on Form S-4
LICENSE AGREEMENT
This License Agreement, effective as of September 24, 1997 (the "Effective
Date"), is made by and between STANDARD & POOR'S, a division of The McGraw-Hill
Companies, Inc. ("S&P"), a New York corporation having an office at 65
Broadway, New York, New York 10006, and the CHICAGO MERCANTILE EXCHANGE ("CME"),
an Illinois not-for-profit corporation having an office at 30 South Wacker
Drive, Chicago, Illinois 60606.
RECITALS:
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WHEREAS, S&P compiles, calculates, maintains and owns rights in and to the
various stock indices listed in Appendix 1 to this Agreement and to the
proprietary data contained therein, including the S&P 500/BARRA Growth Index
and the S&P 500/BARRA Value Index which S&P and BARRA, Inc. ("BARRA") together
compile, calculate, maintain and own rights in; and
WHEREAS, S&P uses in commerce and has trade name and trademark rights to
the designations listed in Appendix 2 to this Agreement, including the
designations "S&P 500/BARRA Growth Index" and "S&P 500/BARRA Value Index"
which S&P uses with BARRA's permission; and
WHEREAS, CME wishes to use the S&P Stock Indices and the S&P Marks in
connection with: (1) creating, trading, marketing, clearing and promoting
Futures Contracts and Options on Futures Contracts and activities related
thereto; and (2) making disclosure about such Contracts under applicable laws,
rules and regulations in order to identify that S&P is the source of the S&P
Stock Indices, pursuant to the terms and conditions hereinafter set forth; and
WHEREAS, S&P wishes to license CME to use the S&P Stock Indices and the S&P
Marks for the purposes stated above and has the right (with BARRA's consent) to
license the S&P/BARRA Indices and S&P/BARRA Marks to third parties, such as CME;
and
WHEREAS, CME and S&P have previously entered into five license agreements
(listed in Appendix 3 hereto) that are currently in effect and collectively
provide CME with a license to use the S&P Stock Indices and S&P Marks in
connection with creating, trading, marketing, clearing and promoting Futures
Contracts and Options on Futures Contracts and activities related thereto; and
WHEREAS, CME and S&P wish to consolidate the five license agreements
(listed in Appendix 3 hereto) into this License Agreement and to extend their
terms as provided herein;
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, it is agreed as follows:
1. DEFINITIONS. For purposes of this Agreement, the following definitions
shall apply:
(a) "Affected Contract" shall mean a Contract based upon an S&P Index
licensed to CME on an exclusive basis, the trading of which has been affected,
as described in Section 5(c) herein, by a CME listed Contract based on a
Competitive Index.
(b) "Agreement" shall mean this License Agreement.
(c) "CFTC" shall mean the Commodity Futures Trading Commission, as from
time to time constituted or, if at any time after the execution of this
Agreement such Commission is not existing and performing the duties assigned to
it under the Commodity Exchange Act, as amended, then the body performing such
duties at such time.
(d) "CME Substitute Contracts" shall have the meaning ascribed in Section
8 of this Agreement.
(e) "CME Substitute Index" shall have the meaning ascribed in Section 8 of
this Agreement.
(f) "Competitive Contract" shall mean a Contract based upon a Competitive
Index.
(g) "Competitive Index" shall mean the [*] or any index other than an
index for which CME pays S&P a license fee: (1) in which [*] or more of the [*]
are also [*] of an S&P Index that is licensed to CME on an exclusive basis, and
which has [*] to such S&P Index for the [*] period immediately prior to the
Launch Date and each Launch Anniversary Date, as applicable; and (2) the [*] of
which comprise [*] or more of the [*] of an S&P Index that is licensed to CME on
an exclusive basis, and which has [*] to such S&P Index for the [*] period prior
to the Launch Date and each Launch Anniversary Date, as applicable.
(h) "Confidential Information" shall have the meaning ascribed to it in
Section 12(b) of this Agreement.
(i) "Contract" shall mean a Futures or Option Contract.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(j) "Futures Contracts" shall mean: (1) all instruments: (A) the trading
of which is within the exclusive jurisdiction of CFTC (assuming for this purpose
that the instruments were traded in the United States regardless of where they
are actually traded), (B) which are regulated by the CFTC as futures contracts
(assuming for this purpose that such instruments were traded in the United
States regardless of where they are actually traded), and (C) which CME has the
authority to trade under its articles, by-laws, and rules; and (2) those
instruments which, as of the Effective Date, meet all of the requirements
specified in clause (1) of this Subsection (j) but subsequent to the Effective
Date fail to meet the requirements of clause (1)(A) of this Subsection (j)
solely because another U.S. regulatory authority (in addition to, or in
substitution of, the CFTC) is given regulatory jurisdiction over such
instruments.
(k) "Indexed Contracts" shall mean Futures and/or Option Contracts which
are indexed to any of the S&P Stock Indices.
(l) "Launch Date" shall mean the first day that a Contract begins trading
on the CME.
(m) "Launch Anniversary Date" shall mean each [*] of a Launch Date.
(n) "Option Contract" shall mean an option to purchase or sell Futures
Contracts.
(o) "Normalized Volume" shall mean the [*] of a Competitive Contract,
[*] the [*] of the Affected Contract, [*] the [*] of the Competitive Contract.
The [*] of each Contract shall mean the [*] of [*] and the [*] of the [*] on the
day immediately preceding the Launch Date for the Competitive Contract.
(p) "S&P/BARRA Agreement" shall mean the license agreement between S&P and
BARRA pertaining to the S&P/BARRA Indices and the S&P/BARRA Marks.
(q) "S&P/BARRA Indices" shall mean the S&P 500/BARRA Growth Index and the
S&P 500/BARRA Value Index.
(r) "S&P/BARRA Marks" shall mean the designations "S&P 500/BARRA Growth
Index" and "S&P 500/BARRA Value Index."
(s) "S&P Marks" shall mean the designations listed in Appendix 2 to this
Agreement.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(t) "S&P Stock Indices" shall mean the stock indices listed in Appendix 1
to this Agreement.
(u) "Total Volume" shall mean the total S&P 500 trading volume plus the
Total Normalized Volume (as defined in Appendix 6) in the Competitive Contract.
2. GRANT OF LICENSE.
(a) General. Subject to the terms and conditions of this Agreement, S&P
hereby grants to CME worldwide licenses: (1) to use the S&P Stock Indices solely
in connection with creating, marketing, trading, clearing and promoting Indexed
Contracts; and (2) to use and refer to the S&P Marks in connection with
creating, marketing, trading, clearing and promoting Indexed Contracts and with
making such disclosures about Indexed Contracts as CME deems necessary or
desirable under any applicable federal or state laws, rules or regulations or
under this Agreement in order to indicate the source of the S&P Stock Indices.
(b) Electronic Trading System Rights. The licenses granted to CME by this
Agreement extend to the trading of Indexed Contracts at CME and also on any
electronic trading system on which CME offers its products for trading, but only
to the extent that the Indexed Contracts traded on such electronic trading
system are cleared by CME.
(c) Index Value Dissemination Rights. Subject to the terms and conditions
of this Agreement, S&P further grants to CME a non-exclusive worldwide license
to disseminate the S&P Stock Indices, in real-time, to and through third-party
communications vendors, for information purposes, in connection with creating,
marketing, trading, clearing and promoting Indexed Contracts.
(d) Limited Licenses. CME acknowledges that the S&P Stock Indices (except
for the S&P/BARRA Indices) and the S&P Marks (except for the S&P/BARRA Marks)
are the exclusive property of S&P, that S&P has and retains all proprietary
rights therein (including, but not limited to, trademarks and copyrights), and
that the S&P Stock Indices (except for the S&P/BARRA Indices) and their
compilation and composition and changes therein are in the complete control and
discretion of S&P. CME acknowledges that the S&P/BARRA Indices and the S&P/BARRA
Marks are the exclusive property of S&P and BARRA, that S&P and BARRA have and
retain all proprietary rights therein (including, but not limited to, trademarks
and copyrights) and that the S&P/BARRA Indices and their compilation and
composition and changes therein are in the complete control and discretion of
S&P and BARRA. Except as otherwise specifically provided herein, S&P reserves
all rights to the S&P Stock Indices and the S&P Marks which are not expressly
licensed hereunder and this
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Agreement shall not be construed to transfer to CME any right to, or interest
in, the S&P Stock Indices or the S&P Marks, or in any copyright, trademark or
proprietary right pertaining thereto.
(e) Licensing of Additional S&P Stock Indices. Unless otherwise agreed
by the parties in writing, this Agreement shall govern any and all licenses to
S&P Stock Indices (whether newly created by S&P or resumed after
discontinuation) and S&P Marks granted by S&P to CME during the term of this
Agreement. Upon the granting by S&P to CME of any such license, Appendix 1 and 2
to this Agreement shall be amended accordingly.
3. EXCLUSIVITY.
(a) Licensed and Listed Contracts. Subject to this Section 3, the license
for any S&P Stock Index that was licensed to CME pursuant to the Prior License
Agreements, and in respect to which CME listed Indexed Contracts for trading
prior to the Effective Date, shall be exclusive for the period commencing on
the Effective Date and ending on December 31, 2008. The license shall continue
on a non-exclusive basis thereafter for the duration of the term of this
Agreement.
(b) Licensed but Unlisted Contracts. The license for any S&P Stock Index
that was licensed to CME pursuant to the Prior License Agreements, but which was
not listed for trading prior to the Effective Date, shall be exclusive for a [*]
period, commencing on the Effective Date and ending on the [*] anniversary of
the Effective Date. However, if CME has applied to the CFTC to commence trading
of Indexed Contracts based upon any such S&P Stock Index and CME had not
previously been permitted by the CFTC to commence trading of such Indexed
Contracts, then the period of exclusivity shall commence on the Effective Date
and shall continue until [*] after the date on which CME receives final CFTC
approval to trade Indexed Contracts based upon any such S&P Stock Index. Upon
the expiration of any period of exclusivity described in this Subsection 3(b),
CME shall have the option, exercisable within thirty (30) days of the date of
such expiration, to extend, for [*] additional [*], the exclusive license for
any such S&P Stock Index by paying S&P [*]. After the [*], if any, that CME
extends the exclusivity of any license pursuant to the foregoing, S&P shall have
the option of making such license non-exclusive by delivering written notice to
CME within thirty (30) days of the expiration of the exclusivity of such
license. In the event S&P delivers CME notice pursuant to the foregoing or CME
does not elect to extend the exclusivity of any license or upon the expiration
of any extension provided for above, whichever occurs first, the license for any
such S&P Stock Index shall become non-exclusive and S&P may thereafter license
such S&P Stock Index to any other party.
Once listed, any such license shall remain exclusive for the remainder of
the term of this Agreement so long as either, in any [*]: (1) a minimum average
trading volume of [*] of such Indexed Contracts per [*] has been achieved; or
(2) in the event that such minimum average is not met, CME determines, in its
sole discretion, to pay S&P the sum of [*] to maintain the exclusivity for such
Indexed Contract for [*], such payment to be made within thirty (30) days after
the end of [*]; provided, however, that the [*] payable by CME to S&P under this
Subsection 3(b) shall be reduced by the total amount of license fees paid by CME
to S&P in that [*] for such Indexed Contract. In the event the relevant license
does not remain exclusive pursuant to the foregoing, the license for the
relevant S&P Stock Index shall become non-exclusive and S&P may thereafter
license such S&P Stock Index to any other party.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(c) Contracts Listed for Trading After the Effective Date. The license for
any S&P Stock Index licensed to CME pursuant to Section 2(e) hereof after the
Effective Date, and upon which CME has listed Indexed Contracts for trading
within [*] after the date of the grant of such license, shall be exclusive for
the [*] following CME's listing of such Indexed Contracts. Thereafter, any such
license shall remain exclusive for the remainder of the term of this Agreement
so long as either, in any [*]: (1) a minimum average trading volume of [*] of
such Indexed Contracts per [*] has been achieved; or (2) in the event that such
minimum average is not met, CME determines, in its sole discretion, to pay S&P
the sum of [*] to maintain the exclusivity for such Indexed Contract for [*]
such payment to be made within thirty (30) days after the end of [*]; provided,
however, that the [*] payable by CME to S&P under this Subsection 3(c) shall be
reduced by the total amount of license fees paid by CME to S&P in that [*] for
such Indexed Contract. In the event the relevant license does not remain
exclusive pursuant to the foregoing, the license for the relevant S&P Stock
Index shall become non exclusive and S&P may thereafter license such S&P Stock
Index to any other party.
(d) S&P 500 Exclusivity: In the event CME lists Competitive Contracts
(vis-a-vis the S&P 500) for trading, the [*] period prior to the Launch Date of
such Contracts shall be deemed the "Reference [*]." [*] following such Launch
Date, and [*] on the Launch Anniversary Date it shall be determined whether,
during the preceding [*], there has been a [*] or greater attributable decrease
(as defined herein) in both S&P 500 volume and S&P Market Share (as defined
herein) compared to levels during the Reference [*].
An attributable decrease in S&P 500 volume shall be measured by the lesser
of: (1) the difference between the annual trading, volume in the S&P 500
Contract during the Reference [*] and the trading volume in the S&P 500
Contract during the [*] prior to the relevant Launch Anniversary Date; and (2)
the Normalized Volume in the Competitive Contract during such [*]. "S&P Market
Share" shall be the percentage of Total Volume represented by S&P 500 trading
volume.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
In the event there has been a [*] or greater attributable decrease in both
S&P 500 trading volume and S&P Market Share, then [*] following the date such
decreases are calculated, the attributable decrease in S&P 500 volume and S&P
Market Share shall be calculated a second time for the [*] immediately prior to
the date of the second calculation.
In the event that after the [*] S&P 500 volume and S&P Market Share remain
below [*] of their levels in the Reference [*], the licenses granted hereunder
for the S&P 500 Index and its associated Marks shall immediately become
non-exclusive and continue for the remainder of the term of this Agreement on a
non-exclusive basis.
In the event the license for the S&P 500 Index becomes non-exclusive
pursuant to this Subsection 3(d), there shall be no further adjustment to the
license fees paid to S&P by CME for Indexed Contracts based on the S&P 500 Index
pursuant to Subsection 5(c), and such license fees shall be the Basic License
Fee described in Subsection 5(a), adjusted, if applicable, pursuant to Section
5(b), for the remainder of the term of this Agreement.
4. RIGHT OF FIRST REFUSAL ON NEW S&P STOCK INDICES.
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During the term of this Agreement, CME shall have a right of first refusal
on licenses to base Indexed Contracts on any stock indices not licensed
hereunder as of the Effective Date, and which are developed and compiled [*]
prior to or during the term of this Agreement. Prior to offering any such
license to any other party, S&P must first offer the license on an exclusive
basis to CME. S&P must provide CME with reasonably sufficient information on
which to base its acceptance or rejection of S&P's offer, including, without
limitation, information and data (if available) indicating the amount of assets
benchmarked to such index. CME shall have sixty (60) calendar days thereafter to
accept the offered license, in writing, on mutually agreeable terms, or to
reject the offered license. However, if no agreement with respect to the offered
license is reached between CME and S&P, S&P shall not grant such license to
another party on more favorable terms than were offered to CME.
5. LICENSE FEES.
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(a) Basic License Fee. Except as provided below, and subject to the terms
and conditions of this Agreement, CME shall pay S&P [*] for each trade of an
Indexed Contract (except the S&P MidCap 400, for which the fee shall be [*] per
trade), through October 21, 1997,
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
and [*] per trade of an Indexed Contract after October 21, 1997 and through and
including the date on which this Agreement is terminated or expires pursuant to
the terms hereof.
(b) License Fees If Multiplier is Adjusted. If CME, in its sole discretion,
adjusts the multiplier of the S&P 500 Contract, the basic license fee described
in Section 5(a) will be proportionately adjusted on a prospective basis as of
the date of such change. CME shall provide S&P with at least thirty (30) days
advance written notice of such change, which notice shall specify the adjustment
to S&Ps license fee. [*] thereafter, and for so long as CME trades Contracts
based on the S&P 500 Index having a multiplier of [*] and so long as the S&P 500
Index is licensed to CME on an exclusive basis, CME will compare the fees paid
to S&P during the [*] preceding [*] of the adjustment date, in regard to such
contract, with the average annual fee paid to S&P therefor during the [*] period
prior to the first day that the adjusted contract was listed for trading. If the
total license fee paid to S&P for the S&P 500 Index in such [*] period is less
than the average annual license fee for the S&P 500 Index for such [*] period,
CME shall pay S&P the difference within sixty (60) days of the relevant [*] of
the adjustment date. Notwithstanding the foregoing, under no circumstances shall
CME be required to pay S&P more than [*] per round-turn trade. An example of the
above-described calculation is included in Appendix 5.
CME shall adjust the multiplier of the S&P 500 only in the event that CME
determines, in its sole discretion, that such an adjustment will result in an
increase in revenue to both CME and S&P.
(c) License Fee Adjustments if Contract based on a Competitive Index is
Traded. If, after the Effective Date, CME begins trading Competitive Contracts,
CME shall compensate S&P for any decrease in volume in the Affected Contract
that is not attributable to the normal decrease in trading volume for all
Indexed Contracts. As compensation for any such decrease in volume, S&P shall be
paid the lesser of the following: (1) the loss in volume (defined as the
difference between the average annual volume for the [*] period preceding the
Launch Date of Competitive Contracts and the volume in the Affected Contract
during the [*] period following Affected Contract during that [*] period; or (2)
the Normalized Volume of the Competitive Contract multiplied by the per-trade
license fee paid to S&P for the Affected Contract during that period. The
calculations described in this Subsection 5(c) shall be made, on each Launch
Anniversary Date for the Competitive Contracts, in [*] that Competitive
Contracts are traded, with the [*] period in question recalculated on a rolling
basis. Amounts payable to S&P hereunder shall be paid within sixty (60) days of
the relevant Launch Anniversary Date. An example of this calculation is included
in Appendix 6.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
In the event CME reduces the Notional Value of the Affected Contract either
prior or subsequent to its listing Competitive Contracts for trading, CME shall
pay to S&P the lesser of the amounts calculated in either Subsection 5(b)
or 5(c) herein.
(d) S&P 500 Mini-Contract. In the event CME, in addition to but not in lieu
of its current S&P 500 Contract, lists for trading Indexed Contracts based on
the S&P 500 Index having a contract multiplier [*], CME shall pay S&P a
per-trade license fee for the [*] equal to the license fee payable hereunder
for the S&P 500 Contract at the time the [*] is listed, multiplied by [*]
minus the percentage reduction in the size of the contract multiplier between
the original S&P Contract and the [*]. Notwithstanding the foregoing, the per-
trade license fee for any [*] contract shall be [*] through October 21, 1997.
(e) Payment Schedule. The license fees payable pursuant to Section 5(a) and
5(d) shall be determined at the end of each month and shall be paid within
fifteen (15) days after the end of each month. Each payment shall be accompanied
by a full accounting of the basis for the calculation of the fee. The amounts
required to be paid pursuant to Sections 5(b) or (c) shall be payable in
accordance with such sections and shall be accompanied by a full accounting of
the basis for the calculation of the payment.
(f) Right to Audit. During the term of this Agreement and for a period of
one (1) year after its termination or expiration. S&P shall have the right,
during normal business hours and upon reasonable notice to CME, to audit on a
confidential basis the relevant books and records of CME to determine that the
license fees, and other amounts payable hereunder, have been accurately
calculated. The costs of such audit shall be borne by S&P unless it determines
that it has been underpaid by five percent (5%) or more; in such case, the costs
of the audit shall be paid by CME.
6. TERM.
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The term of this Agreement shall commence as of the Effective Date and
shall continue in full force and effect until December 31, 2013, unless and
until terminated earlier in accordance with Section 7 hereof. Upon the
expiration of this Agreement, the parties shall in good faith attempt to
negotiate a renewal of the Agreement on such terms as are mutually agreeable.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
7. TERMINATION.
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(a) Material Breach. In the case of a breach of any of the material terms
or conditions of this Agreement by either party, the other party may terminate
this Agreement by giving thirty (30) days prior written notice to the non-
breaching party of its intent to terminate, which notice shall specify the
nature of the alleged breach, and such notice shall be effective on the date
specified therein for such termination unless the breaching party shall correct
such breach within the notice period. In addition, at any time during the term
of this Agreement, either party may give the other party ninety (90) days prior
written notice of termination if the terminating party believes in good faith
that material damage or harm is occurring to the reputation or goodwill of the
terminating party by reason of its continued performance hereunder, and such
notice shall be effective on the date specified therein of such termination,
unless the other party shall correct the condition causing such damage or harm
within the notice period.
(b) Discontinuation of an S&P Stock Index. S&P shall have the right in its
sole discretion to cease compilation and publication of any of the S&P Stock
Indices and to terminate the license granted hereunder as to such discontinued
index; provided, however, that S&P shall use its best efforts to give CME at
least one (1) year prior written notice of such discontinuation, and further
provided, however, that all Indexed Contracts based on the discontinued index
which are open and listed for trading on the date such notice of termination was
provided to CME, may nevertheless continue to be traded until such Indexed
Contracts either expire and are no longer listed for trading or until thirty-six
(36) months following the date of such notice of termination, whichever occurs
first. CME's obligations to make any payment to S&P with respect to any Indexed
Contract licensed pursuant to this Agreement and based on the discontinued Index
shall terminate effective on the date on which the license for the discontinued
Index is effectively terminated by S&P.
(c) Failure to Obtain Regulatory Approval. If, within twelve (12) months
after any license has been granted to CME to trade Indexed Contracts based upon
an S&P Stock Index, CME has not obtained contract market designation therefor as
provided for in Section 10 hereof, then, unless the parties otherwise mutually
agree, upon written notice from either CME or S&P to the other party, the
license granted to CME with respect to such S&P Stock Index shall terminate,
along with all rights and obligations of the parties relating thereto. The
foregoing shall not apply, however, unless and until S&P reasonably determines
that the CFTC has determined that a particular S&P Stock Index may legally be
permitted to be used as the basis for trading Indexed Contracts.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
8. CME SUBSTITUTE INDEX AND CONTRACTS.
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(a) CME's Rights Upon Discontinuation of an S&P Stock Index. If S&P
discontinues compilation and publication of any S&P Stock Index licensed to CME
under this Agreement. CME shall have the following, rights:
(1) S&P shall, for the purpose of enabling CME, if it chooses, to
compile and make use of its own substitute index ("CME Substitute Index") with
respect to any discontinued S&P Stock Index, provide CME with a continuing non-
exclusive and royalty-free worldwide license to use the list of companies,
shares outstanding and divisors for such discontinued S&P Stock Index as of the
Index Discontinuation Date. S&P shall have no further obligations to CME with
respect to such discontinued S&P Stock Index or any Indexed Contract based upon
such Index after finishing CME with the aforesaid information.
(2) As of the Index Discontinuation Date, CME shall not trade any
Indexed Contracts based upon the discontinued S&P Stock Index except as provided
in Section 7(b) of this Agreement. CME may continue to use the S&P Marks in
connection with the trading of Indexed Contracts previously licensed hereunder
as provided in, and subject to, Section 7(b). Upon receipt of any notice of
index discontinuation by S&P hereunder as provided in Section 7(b), CME may
elect, by written notice to S&P, to redesignate the discontinued S&P Stock Index
as a CME Substitute Index and continue to trade Indexed Contracts ("CME
Substitute Contracts") based upon such CME Substitute Index, except that, from
the date of such notice of election until the Index Discontinuation Date of such
S&P Stock Index, such CME Substitute Index shall be described in a manner to
clearly differentiate it from the discontinued S&P Stock Index. CME shall have
no obligation to make any payment of fees to S&P with respect to the trading of
CME Substitute Contracts. After such election, CME may promote CME Substitute
Contracts based upon the CME Substitute Index provided that the S&P Marks are
not utilized by CME in connection therewith and CME prominently disclaims any
relationship with S&P with respect to the CME Substitute Contracts.
(b) Discontinuation of Trademark Licenses. If CME's license to use any S&P
Stock Index terminates because of the termination or expiration of this
Agreement, or for any reason other than S&P's discontinuation of its compilation
and publication, then CME shall not use the name "Standard & Poor's" or "S&P" or
"BARRA" in connection with the promotion or trading of any additional Indexed
Contracts based on such S&P Stock Index; provided, however, that Indexed
Contracts based on such S&P Stock Index, which are listed for trading on the
date of termination, may be traded using the relevant S&P Marks until expiration
or for 36 months, whichever occurs first. Following such termination, if CME
elects to trade CME Substitute Contracts on a CME Substitute Index, it may make
information references only to such S&P Stock Index, provided that
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
CME disclaims any relationship with S&P in connection therewith. The foregoing
shall nevertheless depend on the fact that S&P shall continue to compile and
publish such S&P Stock Index in which event S&P shall disseminate such Index to
CME in the same fashion as is currently being done, except that CME shall bear
any incremental costs incurred by S&P at any time in providing such service.
9. S&P OBLIGATIONS.
----------------
(a) Regulatory Approvals or Investigations. S&P shall reasonably assist
CME in connection with the preparation of factual materials for presentation
to the CME, or any other governmental entity, in connection with any
application by CME for approval to trade any of the Indexed Contracts licensed
hereunder, or any investigations or hearings regarding any such Indexed
Contracts.
(b) Calculation and Dissemination of Index Values. S&P or its agent shall
compute and, in a manner reasonably satisfactory to CME, disseminate to CME, the
value of each of the S&P Stock Indices at least once every fifteen seconds
during normal trading hours. The foregoing shall be at S&P's expense, except
that S&P shall not be obligated to pay for any hardware, software,
communications or similar expenses associated with the receipt by CME of S&P
Stock Index values. S&P, or its agent, shall provide CME each trading day with
respect to each S&P Stock Index licensed to CME hereunder a special opening
quotation for use in settling Indexed Contracts based on such S&P Stock Index as
well as the percentage of underlying stocks that have opened trading that day in
the primary market or that have resumed trading after a trading halt in the
primary market. Subject to Section 13 hereof, S&P shall use its best efforts:
(1) to ensure the correct and timely calculation and dissemination of the S&P
Stock Indices; (2) maintain a backup to verify the calculation of the S&P Stock
Indices on a continuing basis; (3) take extra precautions to verify the accuracy
of the daily closing, index values; and (4) inform CME each day of the closing
numbers for each of the S&P Stock Indices as soon as practicable after the close
of trading of the underlying stocks.
10. CME's OBLIGATIONS.
------------------
(a) General. CME shall use its best efforts to protect the goodwill and
reputation of S&P and of the S&P Marks in connection with their use under this
Agreement. CME shall maintain high standards of fairness and truthfulness in,
and shall allow S&P, upon its request, to review and approve in advance, all CME
advertisements, brochures, promotional and informational materials relating to
or referring to the S&P Stock Indices or the Indexed Contracts. S&P shall
safeguard the
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
confidentiality of any promotional or informational materials furnished by CME
for S&P's review, as provided for in Section 12(b) hereof.
(b) Compliance with Applicable Laws. CME shall use its best efforts to
comply with the federal commodities laws and the rules thereunder insofar as
those laws and rules relate to the Indexed Contracts licensed hereunder. CME
shall take all necessary steps to ensure that the trading of the Indexed
Contracts is carried out in accordance with high ethical and legal standards.
S&P shall have no obligation or liability in connection therewith. This
provision is intended solely for the benefit of the parties hereto and not for
the benefit of third parties.
(c) CME Rulebook Disclaimers. CME shall use and disseminate the S&P Stock
Indices and the S&P Marks only in compliance with the terms and conditions of
this Agreement to ensure that S&P's rights in the S&P Stock Indices and the S&P
Marks are in no way diminished or jeopardized and CME shall use its best efforts
to ensure that the public is in no way confused or misled as to such rights. CME
shall include Appendix 4 hereto in its rules and take any other action necessary
to ensure that its members trading in the Indexed Contracts are subject to the
provisions of Appendix 4.
(d) Cross-Margining Program. CME will use its best efforts to include the
Indexed Contracts in CME's existing cross-margining program with the Options
Clearing Corporation unless CME reasonably determines in any case that such
cross-margining program is not appropriate.
(e) Regulatory Approvals. CME shall promptly file for and use its best
efforts to obtain and maintain any regulatory approval for the trading of
Indexed Contracts that is required during the term of this Agreement.
(f) CME Warranties. The CME represents and warrants to S&P that (1) the
execution and performance of this Agreement by the CME will not conflict with,
or result in a breach or violation of, any other agreement (written or oral) or
instrument to which CME is party or by which it is bound, and (2) this Agreement
has been duly authorized, executed and delivered by CME and constitutes a valid
and legally binding obligation of CME, enforceable in accordance with its terms.
11. PROTECTION OF VALUE OF LICENSE.
-------------------------------
(a) Trademark Registrations. During the term of this Agreement, S&P shall
use its best efforts to maintain in full force and effect federal registrations
of "Standard & Poor's(R)," "S&P(R)" and "S&P 500(R)." CME shall reasonably
cooperate with S&P, at S&P's expense, in the maintenance of
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
such rights and registrations and shall do such acts and execute such
instruments as are reasonably necessary and appropriate for such purposes.
(b) Unlicensed Use of S&P Stock Indices or S&P Trademarks. In the event S&P
is notified by CME or otherwise becomes aware that any of the S&P Stock Indices
or S&P Marks are to be, or have been, used by a third party without the prior
written consent of S&P, in a manner materially inconsistent with the terms of
the licenses granted to CME hereunder ("Unlicensed User"), and that such use has
or may reasonably be expected to have a material adverse impact upon the
benefits derived by CME from the licenses hereunder, S&P shall have the option
to either (i) use its best efforts to terminate such use, including, without
limitation, by initiating litigation against any such Unlicensed User; or (ii)
permit such Unlicensed User to continue such use, in which case CME shall have
the rights provided below. S&P shall have thirty (30) days after learning of
such uncontested use in which to notify CME of S&P's decision whether to seek to
terminate such use or permit it. If S&P chooses to take action to terminate such
use, CME shall continue to pay the license fees required hereunder, except that
if such use has not been terminated within twenty-four (24) months after the
date of the notice to CME, then CME shall have the rights provided below. S&P
shall, within ten (10) days, give written notice to CME of its decision to cease
such effort to terminate such unlicensed use and of any adverse final decision
with respect to such efforts by any court or other governmental body as to which
there is no further appeal. The costs of any litigation brought under this
Subsection 11(b) shall be borne entirely by S&P, and the conduct of such
litigation shall remain in the sole control of S&P. In the event litigation
initiated pursuant to this Subsection 11(b) is decided adversely to S&P or if
S&P is otherwise unsuccessful in terminating such party's use of the S&P Stock
Indices or the S&P Marks, or if S&P notifies CME that it will not challenge
such unlicensed use, then:
(1) S&P shall have no further liability to CME hereunder on
account of such use and shall not be deemed to have breached any of its
representations, warranties or agreements hereunder. Notwithstanding the
foregoing, while this Agreement remains in effect, S&P shall not enter into any
agreement, written or oral, with any third party, pursuant to which S&P will
receive revenue, derived from the trading of Contracts based on any of the S&P
Marks or S&P Stock Indices licensed hereunder;
(2) CME shall have the right to [*] by this Agreement relating
to the S&P Stock Index or Indices being used by the Unlicensed User, along with
all rights and obligations of the parties thereto, except for [*] provided that
CME gives written notice of such termination to S&P within thirty (30) days of
receiving written notice from S&P that it will not seek to terminate such
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
unlicensed use or that its efforts to terminate such unlicensed use have been
unsuccessful, or at the end of the twenty four (24) month period specified in
Section 11(b); and
(3) if CME does [*] hereby to the S&P Stock Index or Indices being
used by the Unlicensed User as provided in subsection (2) above, CME shall have
the right to [*] to compensate for any loss of revenue to CME and its members as
a result of such unlicensed use. If the parties are unable to reach agreement
[*] within sixty (60) days after the CME's written notice requesting [*] the
matter shall be resolved by binding arbitration through the American Arbitration
Association and subject to its commercial rules. The binding arbitration shall
be conducted by three arbitrators qualified as valuation experts in the field of
intellectual property licenses, one of which shall be selected by S&P, one of
which shall be selected by CME and one of which shall be appointed by the other
two. The arbitration shall be conducted in The Borough of Manhattan, The City of
New York. The parties shall each be responsible for fifty percent (50%) of the
cost of the arbitration, regardless of the outcome thereof.
Notwithstanding the foregoing, nothing herein shall be construed to limit
CME's right to seek to enjoin any unlicensed use of the S&P Marks by an
Unlicensed User in the event S&P does not terminate such use.
12. PROPRIETARY RIGHTS.
(a) Security Measures. CME acknowledges that the S&P Stock Indices,
including the S&P/BARRA Indices, are valuable assets of, and are selected,
coordinated, arranged and prepared solely by S&P, and S&P and BARRA,
respectively, through the application of methods and standards of judgment used
and developed through the expenditure of considerable work, time and money. CME
agrees that it will take such security measures as are reasonably necessary in
order to prevent any unauthorized use of the information provided to it
concerning the selection, coordination, arrangement and preparation of the S&P
Stock Indices, including the S&P/BARRA Indices.
(b) Obligations of Confidentiality. Each party shall treat as confidential,
and shall not disclose or transmit to any third party: (1) any documentation or
other materials that are marked as "Confidential and Proprietary" by the
providing party; or (2) the terms of this Agreement ("Confidential
Information"). Confidential Information as described in clause (1) of the
preceding sentence shall not include: (A) any information that is available to
the public or to the receiving party hereunder from sources other than the
providing party (provided that such source is not subject to a confidentiality
agreement with regard to such information); or (B) any information that is
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
independently developed by the receiving party without use of or reference to
information from the providing party. Notwithstanding the foregoing, either
party may reveal Confidential Information to any regulatory agency or court of
competent jurisdiction if such information to be disclosed is: (i) approved for
disclosure in writing by the providing party or (ii) required by law,
regulatory agency or court order to be disclosed by the receiving party,
provided, however, that if permitted by law, prior written notice of such
required disclosure shall be given to the providing party and further provided,
however, that the receiving party shall cooperate with the providing party to
limit the extent of such disclosure.
13. REPRESENTATIONS, WARRANTIES, DISCLAIMERS.
-----------------------------------------
(a) Rights to Grant Licenses. S&P represents and warrants that S&P is the
owner of, or has the right to license CME to use, the S&P Stock Indices and S&P
Marks, as provided herein. S&P hereby represents and warrants to CME that BARRA
has consented to S&P's entry into this Agreement with CME. If at any time during
the term of this Agreement, BARRA ceases participating in the compilation and
publication of the S&P/BARRA Indices, whether as a result of the termination of
the S&P/BARRA Agreement or for any other reason, S&P covenants and agrees that
it shall, without interruption, itself compile and publish substantially similar
substitute indices for CME's use under the terms of this Agreement, and S&P
shall have no liability to CME hereunder. In such event, the parties agree that
such substitute indices shall replace the S&P/BARRA Indices under this Agreement
and that new trademarks will be designated to replace the S&P/BARRA Marks. It is
understood that the licensing of any such substitute indices shall be evidenced
by a written amendment to this Agreement, executed by S&P and CME.
(b) Responsibilities for Errors and Omissions. S&P shall promptly correct,
or instruct its agent to correct, any errors made in S&P's computations of the
S&P Stock Indices that are brought to S&P's attention by CME; provided,
however, that nothing in this Section 13 shall give CME the right to exercise
any judgment or require any changes with respect to S&P's method of composing,
calculating or determining the S&P Stock Indices; and, further provided,
however, that nothing in this Section 13(b) shall be deemed to modify the other
provisions of this Section 13.
(c) Limitation of Liability. S&P shall obtain information for inclusion in
or for use in the calculation of the S&P Stock Indices from sources that S&P
considers reliable, but S&P accepts no responsibility for, and shall have no
liability for, any errors, omissions or interruptions therein. S&P does not
guarantee the accuracy and/or the completeness of the S&P Stock Indices or any
data included therein in connection with the trading of the Indexed Contracts,
or any other use. S&P makes no warranty, express or implied, as to results to be
obtained by any person or any entity from the use of the S&P Stock Indices or
any data included therein. S&P makes no express or implied
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
warranties and expressly disclaims all warranties of merchantability or fitness
for a particular purpose or use with respect to the S&P Stock Indices or any
data included therein.
(d) No Special Damages. Neither party shall have any liability for lost
profits or indirect, punitive, special, or consequential damages (including lost
profits) arising out of this Agreement, even if notified of the possibility of
such damages.
(e) Limitation on Damages. Without diminishing the disclaimers and
limitations set forth in this Section 13, in no event shall the cumulative
liability of S&P to CME exceed the license fees actually paid to S&P hereunder
over the one-year period preceding the date on which S&P is found liable to CME.
The parties agree that this limitation on liability is reasonable under the
circumstances.
14. INDEMNIFICATION.
----------------
(a) CME's Indemnification of S&P. Except as provided in Subsection (b)
below, CME shall indemnify and hold harmless S&P, its affiliates and their
officers, directors, employees and agents against any and all judgments,
damages, costs or losses of any kind (including reasonable attorneys' and
experts' fees) as a result of any claim, action, or proceeding that arises out
of or relates to: (1) this Agreement (other than a breach by S&P of its
representations, warranties and agreements hereunder); or (2) the Indexed
Contracts; provided, however, that S&P notifies CME promptly of any such claim,
action or proceeding. CME shall periodically reimburse S&P for its expenses
incurred under this Section 14. S&P shall have the right, at its own expense, to
participate in the defense of any claim, action or proceeding against which it
is indemnified hereunder; provided, however, it shall have no right to control
the defense, consent or judgment, or agree to settle any such claim, action or
proceeding without the written consent of CME without waiving the indemnity
hereunder. CME, in the defense of any such claim action or proceeding, except
with the written consent of S&P, shall not agree to entry of any judgment or
enter into any settlement which either does not include, as an unconditional
term, the grant by the claimant to S&P of a release of all liabilities in
respect of such claims or which otherwise adversely affects the rights of S&P.
(b) Exclusion from CME's Indemnification Obligation. CME's indemnification
obligations under Subsection (a) above shall not apply to: (1) the willful or
intentional misconduct of any of S&P's officers, directors, employees, or
agents; (2) [*] in the S&P Stock Indices or any data included therein originated
by S&P; or (3) any breach by S&P of its representations, warranties, or
agreements made in this Agreement.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(c) No Third Party Beneficiaries. These indemnification provisions are
solely for the benefit of CME and S&P and are not intended to, and do not
create, any rights or causes of actions on behalf of any third party.
15. FORCE MAJEURE
-------------
Neither S&P nor CME shall bear responsibility or liability for any
losses arising out of any delay in or interruptions of their respective
performance of their obligations under this Agreement due to any act of God, act
of governmental authority or act of public enemy or due to war, the outbreak or
escalation of hostilities, riot, fire, flood, civil commotion, insurrection,
labor difficulty (including, without limitation, any strike, or other work
stoppage or slow down), severe or adverse weather conditions, power failure,
communications line failure, or other similar cause beyond the reasonable
control of the party so affected.
16. INJUNCTIVE RELIEF
-----------------
In the event of a material breach by one party of provisions of this
Agreement relating to the Confidential Information of the other party, the
parties acknowledge and agree that damages would be an inadequate remedy and
that the non-breaching party shall be entitled to preliminary and permanent
injunctive relief to preserve such confidentiality or limit improper disclosure
of such Confidential Information, but nothing herein shall preclude the non-
breaching party from pursuing any other action or remedy for any breach or
threatened breach of this Agreement. In the event of a material breach by CME of
provisions of this Agreement relating to dissemination of the S&P Stock Indices,
CME acknowledges and agrees that damages would be an inadequate remedy to S&P
and that S&P shall be entitled to preliminary and permanent injunctive relief to
enforce the provisions hereof, but nothing herein shall preclude S&P from
pursuing any other action or remedy for any breach or threatened breach of this
Agreement. All remedies hereunder shall be cumulative.
17. GENERAL PROVISIONS.
-------------------
(a) Assignment and Delegation. This Agreement is solely and exclusively
between the parties hereto and shall not be assigned or transferred, nor shall
any duty hereunder be delegated, by either party, without the prior written
consent of the other party, and any attempt to so assign or transfer this
Agreement or delegate any duty hereunder without such written consent shall be
null and void. This Agreement shall be valid and binding on the parties hereto
and their successors and permitted assigns.
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(b) Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to its subject matter. This Agreement supersedes
the Prior License Agreements and all other previous agreements between the
parties, if any, with respect to the subject matter of this Agreement. There are
no oral or written collateral representations, agreements, or understandings
except as provided herein.
(c) Non-Waiver and Amendments. No waiver, modification, or amendment of
any of the terms and conditions hereof shall be valid or binding, unless such
waiver, modification, or amendment is in writing and signed by a duly authorized
officer of each of the parties hereto.
(d) Effect of Breach. No breach, default or threatened breach or default
of this Agreement by S&P shall relieve CME of its obligations under this
Agreement with respect to the protection of the property or proprietary nature
of any property which is the subject matter of this Agreement.
(e) Notices. All notices and other communications under this Agreement
shall be: (1) in writing; (2) delivered by hand, by registered or certified
mail, return receipt requested, or by facsimile transmission to the address or
facsimile number set forth below or such address or facsimile number as either
party shall specify by a written notice to the other; and (3) deemed given
upon receipt.
Notice to S&P:
--------------
Standard & Poor's
65 Broadway
New York, New York 10006
Attention: John C. Zwingli
Group Vice President
Facsimile No: 212/770-0270
With a copy to:
---------------
David B. Stafford
Associate General Counsel
The McGraw-Hill Companies
1221 Avenue of the Americas
New York, NY 10020
Facsimile No: 212/512-6769
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Notice to CME:
--------------
Chicago Mercantile Exchange
30 South Wacker Drive
Chicago, IL 60606
Attention: T. Eric Kilcollin, President
Facsimile No: 312/648-3625
With a copy to:
---------------
Paul O'Kelly
Senior Vice President and General Counsel
Chicago Mercantile Exchange
30 South Wacker Drive
Chicago, Illinois 60606
Facsimile No: 312/930-3323
(f) Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of New York.
(g) Choice of Jurisdiction. Each party agrees that in connection with any
legal action or proceeding arising with respect to this Agreement, such action
or proceeding shall be brought only in the United States District Court for the
Southern District of New York or in the Supreme Court of the State of New York
in and for the First Judicial Department, and each party agrees to submit to the
jurisdiction of those courts and venue in those courts and to waive any claim
that either court is an inconvenient forum.
(h) Survival. Section 12, Section 13 and Section 14 shall survive the
expiration or termination of this Agreement.
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first set forth above.
STANDARD & POOR'S
By: /s/ John C. Zwingli
------------------------
John C. Zwingli
Group Vice President
CHICAGO MERCANTILE EXCHANGE
By: /s/ John F. Sandner
------------------------
John F. Sandner
Chairman of the Board
By: /s/ T. Eric Kilcollin
------------------------
T. Eric Kilcollin
President and CEO
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SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
APPENDIX I
----------
The S&P Stock Indices collectively covered by and referred to in this Agreement
are the following:
1. S&P 500 Stock Price Index
2. S&P 100 Stock Price Index
3. S&P MidCap 400 Index
4. S&P SmallCap 600 Index
5. S&P 500/BARRA Growth Index
6. S&P 500/BARRA Value Index
7. S&P Energy Stock Price Index
8. S&P Financial Stock Price Index
9. S&P High Technology Stock Price Index
10. S&P Public Utility Stock Price Index
11. S&P Consumer Staple Stock Price Index
12. S&P Transportation Stock Price Index
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
APPENDIX 2
----------
The S&P Marks collectively covered by and referred to in this Agreement are the
following:
[Enlarge/Download Table]
1. S&P 15. S&P Energy Stock Price Index
2. Standard & Poor's 16. Standard & Poor's Energy Stock Price Index
3. Standard & Poor's 500 17. Standard & Poor's Financial Stock Price Index
4. 500 18. S&P High Technology Stock Price Index
5. S&P 100 19. Standard & Poor's High Technology Stock Price Index
6. Standard & Poor's 100 20. S&P Public Utility Stock Price Index
7. S&P MidCap 400 Index 21. Standard & Poor's Public Utility Stock Price Index
8. Standard & Poor's 100 22. S&P Consumer Staple Stock Price Index
9. S&P SmallCap 600 Index 23. Standard & Poor's Consumer Staple Stock Price Index
10. Standard & Poor's 24. S&P Transportation Stock Index
11. S&P 500/BARRA Growth Index 25. Standard & Poor's Transportation Stock Price Index
12. Standard & Poor's 500/BARRA Growth Index 26. Mini S&P 500*
13. S&P 500/BARRA Value Index 27. E-Mini S&P 500*
14. Standard & Poor's 500/BARRA Value Index
*Should this be a protectable mark
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
APPENDIX 3
----------
The Prior License Agreements between S&P and CME are the following:
1. The License Agreement dated February 28, 1980, as amended on January 27,
1983, and July 29, 1985. (Expiration date: October 21, 1998).
2. The License Agreement dated January 27, 1983, as amended on July 13, 1983,
and July 29, 1985 (Expiration date: [October 21, 1998, for exclusivity;
otherwise license continues until terminated]).
3. The License Agreement dated October 17, 1991, pertaining to the S&P MidCap
400 Index. (Expiration date: October 17, 1996 [but extended for 5 years if
CME's trading volume in contracts based on the Index for the first 6 months
of the 12-month period ending October 17, 1996, averages at least 7,500
contracts per trading day]).
4. The License Agreement dated July 27, 1995, pertaining to the S&P SmallCap,
600 Index. (Expiration date: June 30, 2000 [but extended for 5 years if
CME's trading volume in contracts based on the Index for the first 6 months
of the 12-month period ending June 30, 2000, averages at least 7,500
contracts per trading day]).
5. The License Agreement dated July 27, 1995, pertaining to the S&P/BARRA
Indices. (Expiration date: June 30, 2000 [but extended for 5 years if CME's
trading volume in contracts based on the Index for the first 6 months of
the 12-month period ending June 30, 2000, averages at least 7,500 contracts
per trading day]).
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
APPENDIX 4
----------
Limitation of Standard & Poor's Liability
-----------------------------------------
Rule __. Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
("S&P"), licenses the Exchange to use various S&P stock indices
("S&P Stock Indices") in connection with the trading of futures
contracts and options on futures contracts based upon such indices.
S&P shall have no liability for any damages, claims, losses or
expenses caused by any errors or delays in calculating or
disseminating the S&P Stock Indices.
S&P Disclaimer
--------------
Rule __. Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
("S&P"), does not guarantee the accuracy and/or completeness of the
S&P Stock Indices or any data included therein. S&P makes no
warranty, express or implied, as to the results to be obtained by
any person or any entity from the use of the S&P Stock Indices or
any data included therein in connection with the trading of futures
contracts, options on futures contracts or any other use. S&P makes
no express or implied warranties, and expressly disclaims all
warranties of merchantability or fitness for a particular purpose
or use with respect to the S&P Stock Indices or any data included
therein. Without limiting any of the foregoing, in no event shall
S&P have any liability for any special, punitive, indirect, or
consequential damages (including lost profits), even if notified of
the possibility of such damages.
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
APPENDIX 5
----------
Calculation Methodology Example
Initial Conditions:
1/1/00: S&P 500 contract multiplier of [*] reduced to [*] (i.e.
by a factor of [*]);
1/1/95-1/1/00: Average [*] volume of [*] contracts traded;
1/1/00-1/1/01: License fee of [*] based on actual volume and adjusted
rate [*].
1/1/01-1/1/02: License fee of [*] based on actual volume and adjusted
rate [*].
1/1/02-1/1/03: License fee of [*] based on actual volume and adjusted
rate [*].
1. On January 1, 2000, upon reduction in the S&P 500 contract multiplier, the
per-trade license fee paid on the S&P 500 contract is proportionately
reduced.
[*]
2. On January 1, 2001, multiply the average [*] volume in the S&P 500 contract
for the [*] prior to the reduction in the S&P 500 contract multiplier by the
unadjusted license fee in the S&P 500 Contract.
[*]
3. On January 1, 2001 and [*] thereafter, the total license fee paid to S&P by
CME in regard to the S&P 500 contract for the prior [*] is calculated. [*]
4. CME pays S&P the [*].
[*]
5. Repeat steps 3 and 4 every [*] for the remainder of the term of the
Agreement.
6. The adjustment made to S&P is capped at a per-trade rate of [*].
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
APPENDIX 6
----------
Calculation Methodology Example
-------------------------------
Initial Conditions:
1/1/00: CME launches Competitive Contract
1/1/95-1/1/00: Average [*] volume of [*] contracts traded;
1/1/96-1/1/01: Average [*] volume of [*] contracts traded;
1/1/00-1/1/01: [*] Volumes:
Affected Contract = [*];
Competitive Contract = [*];
1/1/01-1/1/02: [*] Volumes:
Affected Contract = [*];
Competitive Contract = [*];
1. The average [*] volume for the Affected Contract in the rolling [*]
period minus the volume for the Affected Contract in the [*] period immediately
following the rolling [*] period ("Volume Shortfall"). If Volume Shortfall is
less than 0, then, for the purposes of this calculation, Volume Shortfall shall
equal 0.
Year 1 Volume Shortfall = [*];
Year 2 Volume Shortfall = [*].
2. Multiply Volume Shortfall by the license fee paid to S&P by CME for the
Affected Contract during the [*] period immediately following the listing of
such contracts for trading ("S&P Revenue Shortfall").
Year 1 S&P Revenue Shortfall = [*]
Year 2 S&P Revenue Shortfall = [*]
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, AND 17 C.F.R. 230.406 AND 200.80 PROMULGATED
THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
3. The total Normalized Volume is calculated by the following five (5) steps:
(a) The Normalization Factor is calculated:
[*]
(b) Normalized Volume is calculated:
[*]
Year 1: [*]
Year 2: [*]
(c) Repeat steps (a) and (b) for each Competitive Contract as it relates to
the Affected Contract.
(d) Sum the Normalized Volumes for all Competitive Contracts as they relate
to the Affected Contract.
Year 1: [*]
Year 2: [*]
(e) Multiply the sum from step (d) by the per-trade license fee paid for
the Affected Contract at the time this calculation is being performed. ("Total
Normalized Revenue").
Year 1: [*]
Year 2: [*]
The payment to S&P for the [*] period in question is the [*].
Year 1: [*]
Year 2: [*]
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-4/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/13 | | 9 |
| | 12/31/08 | | 5 |
| | 1/1/01 | | 26 |
| | 6/30/00 | | 24 | | | | | 10-Q |
| Filed on: | | 3/10/00 |
| | 1/1/00 | | 26 |
| | 10/21/98 | | 24 |
| | 10/21/97 | | 7 | | 9 |
| | 9/24/97 | | 1 |
| | 10/17/96 | | 24 |
| | 7/27/95 | | 24 |
| List all Filings |
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