Exhibit 10.9
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omissions have been indicated by asterisks ("*****"), and the omitted text has
been filed separately with the Securities and Exchange Commission.
CONFIDENTIAL
LICENSING AGREEMENT FOR THE NASDAQ 100 INDEX-Registered
Trademark- OR NASDAQ 100-RELATED FINANCIAL PRODUCTS TRADED ON ORGANIZED MARKETS
THIS AGREEMENT is dated as of April 3, 1996, and is made by and
between The Nasdaq Stock Market, Inc. (NASDAQ), a Delaware Corporation which is
a subsidiary of the National Association of Securities Dealers, Inc. (NASD)
(NASD with its affiliates are collectively referred to as the CORPORATIONS),
whose principal offices are located at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, and the Chicago Mercantile Exchange (LICENSEE or CME), whose principal
offices are located at 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000.
WHEREAS, Nasdaq possesses certain rights in the Nasdaq
100-Registered Trademark-Index (INDEX); and
WHEREAS, Nasdaq possesses certain rights to Nasdaq-Registered
Trademark-, Nasdaq 100-Registered Trademark-, and Nasdaq 100
Index-Registered Trademark- as trade names, trademarks, or service marks
(MARKS); and
WHEREAS, Nasdaq determines the components of the Index and
calculates, maintains and disseminates the Index; and
WHEREAS, Licensee desires to use and Nasdaq desires to license the
right to use the Index and Marks solely in connection with the (i) creation,
trading, clearing, settlement, marketing, and promotion of Futures Contracts and
Options on Futures Contracts (as defined in Sections 1 (e) and (f) below)
overlying the Index and (ii) making disclosure about such contracts under
applicable law, rules, and regulations in order to indicate that The Nasdaq
Stock Market, Inc. is the source of the Index, pursuant to the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, Licensee and Nasdaq, intending to be
legally bound, agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
(a) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
(b) "SEC" shall mean the Securities and Exchange Commission, as from
time to time constituted or, if at any time after the execution of
1
this Agreement the SEC is not existing and performing the duties now
assigned to it under the Exchange Act, then the regulatory body
performing such duties at such time.
(c) "CEA" shall mean the Commodity Exchange Act, as amended from
time to time.
(d) "CFTC" shall mean the Commodity Futures Trading Commission, as
from time to time constituted or, if at any time after the
execution of the Agreement the CFTC is not existing and performing
the duties now assigned to it under the CEA, then the regulatory
body performing such duties at such time.
(e) "Futures Contracts" shall mean:
(i) (A) all instruments 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)
the CME has the authority under its articles, bylaws,
and rules to trade such instruments; and
(ii) those instruments which as of the Effective Date
meet all of the requirements specified in clause (i)
but subsequent to the Effective Date fail to meet the
requirements of clause (i) (A) solely because the CFTC
or its successor no longer has exclusive regulatory
jurisdiction over such instruments.
(iii) For purposes of this Agreement, the term "Futures
Contract" shall never include a forward contract or swap.
(f) "Options on Futures" shall mean options to purchase or sell
Futures Contracts.
(g) "Nasdaq 100 Futures Contracts" shall collectively mean Futures
Contracts and Options on Futures as defined herein that are listed
for trading on the CME, the GLOBEX-Registered Trademark-
Electronic Trading System ("GLOBEX System"), or any other
electronic trading system sponsored by the CME, and are based upon
the Nasdaq 100 Index-Registered Trademark-.
2
(h) "A.M.-Settled Futures" shall mean futures contracts where the
final index settlement value is derived using the first or a group
of the first reported sale prices of each index-component security
on the day the final index settlement value is determined, except
that the last reported sale price for any such security shall be
used in any case where that security does not open for trading on
the day the final index settlement value is determined.
(i) "A.M.-Settled Futures Options" shall mean options overlying
A.M.-Settled Futures.
SECTION 2. TERM AND LIFE OF AGREEMENT.
2.1 The initial term of this Agreement is from the date of this
Agreement to the date which is five years from the date on which Nasdaq 100
Futures Contracts commence trading on Licensee's market (such date hereinafter
referred to as the EFFECTIVE DATE). This agreement is automatically extended for
an additional five-year period unless Licensee gives Notice (as defined in
Section 25) at least 180 days prior to the end of the initial Term; and provided
further that neither party has terminated this Agreement earlier in accordance
with the terms of this Agreement. Thereafter, this Agreement shall continue to
extend for additional five-year periods unless either party gives Notice of
termination of this Agreement to the other at least 120 days prior to the end of
the then current period. Licensee shall give Notices to Nasdaq of the date on
which Nasdaq 100 Futures Contracts commence trading on Licensee's market. The
period of time commencing on the date of this Agreement and ending on the date
of termination of this Agreement is referred to in this Agreement as the TERM of
this Agreement.
2.2 The period from the date of this Agreement until the date of
expiration of the final Nasdaq 100 Futures Contracts is referred to in this
Agreement as the LIFE of this Agreement. Each anniversary of the Effective Date
during the Life of this Agreement is referred to in this Agreement as an
ANNIVERSARY. Each period between the Effective Date or any Anniversary and the
next succeeding Anniversary or the date of termination of the Life of this
Agreement is referred to in this Agreement as a CONTRACT Year.
SECTION 3. SCOPE OF LICENSE; SCOPE OF EXCLUSIVITY.
3.1 Nasdaq hereby grants Licensee non-transferable and
non-sub-licensable licenses (a) to use the Index in connection with creation,
trading, marketing, clearing, settlement and promotion of Nasdaq 100 Futures
Contracts that are issued during the Life (as defined in Section 2.2) of this
Agreement and traded by open outcry on the CME, GLOBEX, or any other electronic
trading system sponsored by the CME; and (b) to use the Marks solely in
materials referring or relating to the Index during the Life of this Agreement.
Except as expressly provided in this Agreement, no license is granted to use the
Index or Marks for any other use, including as part of a news service or for
collateral products, without Consent (as defined in Section 26) of Nasdaq.
3
3.2 The license granted herein shall be exclusive for a period of
three-and-one-half years from the date Nasdaq 100 Futures Contracts commence
trading on the CME (such date three-and-one-half years after the date Nasdaq 100
Futures Contracts commence trading on the CME being the CONTINUING EXCLUSIVITY
DETERMINATION DATE) and for each calendar year thereafter provided that the
combined average daily trading volume in Nasdaq 100 Futures Contracts and
Options on Nasdaq 100 Futures Contracts exceeds ***** contracts a day measured
over the calendar quarter immediately preceding the continuing exclusivity
determination date and anniversaries of such date: (1) on any organized
commodity exchange located anywhere in the world during the hours of 9:30 a.m.
through 4:15 p.m., Eastern Time ("E.T."); and (2) on any organized commodity
exchange located in the Americas (hereinafter the WESTERN HEMISPHERE) throughout
the entire day (I.E., 24 hours), and accordingly Nasdaq shall not grant any
license to use the Index in connection with the trading, marketing and promotion
of Futures Contracts or Options on Futures that would be traded: (1) any time
during the hours of 9:30 a.m. through 4:15 p.m., E.T., on any organized
commodity exchange located anywhere in the world; or (2) any time during the day
on any organized commodity exchange located in the Western Hemisphere. It is
expressly understood that nothing in this Agreement shall preclude Nasdaq from:
(i) permitting Nasdaq 100 Futures Contracts to be traded on a market owned,
operated or controlled by any of the Corporations, or (ii) granting licenses to
third parties to use the Index in connection with the issuance, trading,
marketing and promotion of derivative products which are not Futures Contracts
or Options on Futures. For purposes of this Agreement, trading in Nasdaq 100
Futures Contracts through GLOBEX shall be deemed to occur outside the Western
Hemisphere.
3.3 Nasdaq acknowledges that Licensee may, during the Life of this
Agreement, disseminate the value of the Index and prices and quotations of any
Nasdaq 100 Futures Contracts to quotation vendors, news services, and other
similar commercial entities for informational purposes in connection with the
marketing and trading of Nasdaq 100 Futures Contracts.
3.4 Nasdaq 100 Futures Contracts shall be designated as
"A.M.-Settled Futures" and "A.M.-Settled Futures Options" (as defined in
Sections 1(h) and (i)).
SECTION 4. FEES.
4.1 Licensee shall pay Nasdaq fees for the use of the Index and
Marks (FEES) in accordance with the provisions of this Section 4. As payment for
the licenses granted herein, the CME shall pay to Nasdaq a one-time lump sum fee
of ***** upon the commencement of trading in Nasdaq 100 Futures Contracts on or
through the facilities of the CME, plus a fee for each trade of a Nasdaq 100
Futures Contract on or through the facilities of the CME or the GLOBEX System at
a rate of ***** per trade (I.E., per round turn including both sides of the
trade).
4.2 All fees to be paid by Licensee shall be paid in immediately
available United States funds. In the event that there are Annual Fees, such are
due as of the effective date of this Agreement, or by the beginning date of any
subsequent Term. Fees established as due by a particular date are due by that
date. All other Fees are due
4
within 30 days of the date established for the production of the report or
date of the invoice upon which the Fee is based. Any amount not paid within
30 days after its due date is subject to interest at the rate of 1-1/2% per
month (or the highest rate permitted by law) until paid, plus cost of
collection, including reasonable in-house and outside attorneys' fees. If in
the future any tax, charge or assessment is imposed on Nasdaq with respect to
this Agreement or the licenses or services provided by Nasdaq under this
Agreement (other than a personal property or income tax), including any
requirement that Licensee deduct or withhold any tax, charge or assessment
from the amounts due to Nasdaq under provisions of this Agreement other than
this sentence, then Licensee shall either: (i) increase the amounts otherwise
due to Nasdaq such that the net amount received by Nasdaq after such tax,
charge, or assessment, equals one hundred percent (100%) of the amounts due
before the tax, charge or assessment; or (ii) at Licensee's election
terminate this Agreement by delivering Notice to Nasdaq, as provided in
Section 25, within sixty (60) days after receiving Notice of the imposition.
Alternatively, if any such tax, charge or assessment is imposed on Licensee
with respect to this Agreement or the licenses or services provided by Nasdaq
under this Agreement (other than a tax imposed generally on exchange
transactions), then Licensee may terminate this Agreement by delivering
Notice to Nasdaq, as provided in Section 25, within sixty (60) days after
receiving Notice of the imposition.
4.3 Licensee shall pay Nasdaq Nasdaq's then current fee applicable
to vendors for supplying subscribers with real-time calculations of Nasdaq
market indices, provided, however, that an amount equal to the amount of the fee
shall be credited against the amount due Nasdaq under Section 4.2.
SECTION 5. AUDIT RIGHTS. During the Life of this Agreement, Nasdaq shall have
the right, with reasonable Notice to Licensee, during normal business hours, to
audit on a confidential basis any relevant books and records of Licensee to
ensure that the type and amount of Fees calculated or stated to be payable to
Nasdaq are complete and accurate. Licensee shall pay Nasdaq's documented
out-of-pocket expenses of such audit (including reasonable in-house and outside
accountant and attorneys' fees, if incurred) if Nasdaq determines that Licensee
has not paid, calculated, and/or reported Fees of more than five percent of that
due Nasdaq under this Agreement.
SECTION 6. REVIEW OF MATERIALS.
6.1 Licensee shall submit to Nasdaq for review a copy of any
material submitted to any regulatory body or governmental agency in order to
obtain and maintain approval for the creation, trading, clearance, and
settlement of Nasdaq 100 Futures Contracts on Licensee's market. To the extent
practicable, such material, or a copy of the then best draft shall be given to
Nasdaq at least 3 business days before their submittal to the body or agency
(but in any event, a copy of the final document shall be sent by Notice to
Nasdaq no later than 3 business days after submittal to the agency or body).
6.2 Licensee shall give Nasdaq a copy, within 3 business days of
receipt, of any notice, correspondence, process, or other material received from
any regulatory body, governmental agency, or any court, during or after the
approval process,
5
which indicates that Nasdaq 100 Futures Contracts are, or might be in
violation of, or otherwise not subject to approval because of, any new or
existing statute, rule, law, regulation, order, opinion, judgement, or
injunction of the CFTC, a court, an arbitration panel, or governmental body
or agency.
6.3 Licensee shall provide Nasdaq with a copy of any informational,
promotional or other materials referring or relating to Nasdaq 100 Futures
Contracts, including any circular, advertisement, or brochure, at least 3
business days prior to its initial dissemination to third parties. Licensee need
not resupply a copy of any material which is substantially like material
previously submitted to Nasdaq and is identical as it describes the Corporations
or their operations, the markets operated by the Corporations, the Index or the
Marks, or the authorization, review, or endorsement of the Corporations of
Nasdaq 100 Futures Contracts.
6.4 If Nasdaq reasonably objects by Notice or fax transmission to
Licensee to any material as it describes the Corporations or their operations,
the markets operated by the Corporations, the Index or the Marks, or the
authorization, review, or endorsement of the Corporations of Nasdaq 100 Futures
Contracts, Licensee shall alter or withdraw such material to Nasdaq's
satisfaction within 30 days of receipt of Nasdaq's objection. If Licensee
refuses to so alter or withdraw, Nasdaq may terminate this Agreement upon 30
days Notice to Licensee, with an opportunity to cure within that period.
SECTION 7. PROTECTION OF MARKS. Nasdaq will use reasonable efforts to maintain
and protect the value of its Index and Marks. However, nothing shall obligate
Nasdaq to undertake an action or settlement, or refrain from an action or
settlement, with respect to any particular potential, threatened, or actual
infringement of its Index or Marks. Licensee shall cooperate with Nasdaq in the
maintenance, registration, and policing of Nasdaq's rights in the Index and the
Marks. Such cooperation is not a waiver of either party's assertion of
attorney/client, work product, or other privilege.
SECTION 8. CALCULATION OF INDEX.
8.1 At no cost to Licensee other than the Fees, Nasdaq, or its
agent: (a) shall compute and make available to the CME the value of the Index at
least ***** during Nasdaq's normal trading hours; and (b) shall compute and
disseminate to Licensee's communications center the "OPENING INDEX VALUE" of the
Index on each trading day that is the last scheduled day of trading in the
securities comprising the Index prior to the expiration of any Nasdaq 100
Futures Contracts traded on Licensee's market. As used in this Section 8.1, the
term "Opening Index Value" shall mean the Index Value derived using the "Opening
Volume-Weighted Prices" of the securities in the Index. The "Opening
Volume-Weighted Price" for a particular Index-component security shall be
calculated based on *****, except that if an Index-component security does not
open for trading on The Nasdaq Stock Market on that day, then the reported sale
price for the security last received and processed by The Nasdaq Stock Market
shall be used to calculate the Opening Index Value. In the event that Nasdaq
implements a "UNITARY OPENING PRICE PROCEDURE," the Opening Index Value will be
calculated using such
6
unitary opening prices instead of Volume-Weighted Prices. As used in this
Section 8.1, the term "UNITARY OPENING PRICE PROCEDURE" shall mean a
methodology, practice, procedure, or mechanism used by The Nasdaq Stock
Market to generate opening prices for Index-component securities that
involves gathering, processing, and executing buying and selling interest in
Index-component securities at one price at the opening of trading on The
Nasdaq Stock Market. Nasdaq, or its agent, shall maintain a back-up computer
system to perform calculations of the Index in the case of failure of the
primary computer system and use its best efforts to resume promptly the
calculation of the Index in the event of a failure of the primary computer
system.
8.2 Licensee agrees that the Index is a product of the selection,
coordination, arrangement, and editing of Nasdaq and that such efforts involve
the considerable expenditure of time, effort, and judgment by Nasdaq. As between
the parties, Licensee recognizes that Nasdaq possesses certain rights to the
Index and the Marks. No license is granted to Licensee to calculate the Index.
While Nasdaq will use reasonable efforts based on sources deemed reliable in
calculating the Index, NASDAQ DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF
THE INDEX OR OF THE DATA USED TO CALCULATE THE INDEX OR DETERMINE THE INDEX
COMPONENTS, OR THE UNINTERRUPTED OR UNDELAYED CALCULATION OR DISSEMINATION OF
THE INDEX. NASDAQ DOES NOT GUARANTEE THAT THE INDEX ACCURATELY REFLECTS PAST,
PRESENT, OR FUTURE MARKET PERFORMANCE. NASDAQ IS NOT RESPONSIBLE FOR ANY
MANIPULATION OR ATTEMPTED MANIPULATION OF THE INDEX. Nasdaq is free to pick and
alter the components and method of calculation of the Index without Consent of
Licensee.
8.3 Nasdaq shall give Licensee ***** Notice of the cessation of
calculation or dissemination of the Index. However, Nasdaq shall either continue
to provide Licensee with a calculation of the Index for the Life of this
Agreement, or, on a confidential basis, provide Licensee with the then
applicable method of calculation of the Index. Licensee may terminate the Term
of this Agreement on the date Noticed by Nasdaq of the cessation of calculation
or dissemination of the Index.
8.4 If the parties agree to permit Licensee, on an interim and
confidential basis, to calculate the Index during any period that Nasdaq is
unable to calculate the Index, Nasdaq agrees to pay Licensee for its reasonable,
marginal, and direct costs associated with calculating the Index over that
period of time.
8.5 Upon receipt of any Notice of termination of the calculation or
dissemination of the Index by Nasdaq, the CME may also elect, by written Notice
to Nasdaq, to redesignate the Nasdaq 100 Index and Nasdaq 100 Futures Contracts
based thereon as the CME's index ("Substitute Index") and continue to trade such
alternative contracts ("CME Substitute Contracts"), except that, from the time
of receipt of such Notice of election until termination of the Life of this
Agreement, such Substitute Index shall be described in a manner to clearly
differentiate it from the Nasdaq 100 Index. In the event of such an election,
the CME shall have no obligation to make any payment to Nasdaq based upon the
trading of such CME Substitute Contracts. After such election,
7
the CME may promote CME Substitute Contracts based upon the CME's Substitute
Index provided that the terms "Nasdaq," "Nasdaq 100, and "Nasdaq 100 Index"
are not utilized by the CME and the CME prominently disclaims any
relationship with Nasdaq in respect of the Substitute Index and Substitute
Index Contracts.
Upon the CME's written request pursuant to this Section 8.5, Nasdaq
shall, for the purpose of facilitating the CME's compilation and use of its own
Substitute Index, provide the CME with a current and accurate list of the
companies, shares outstanding and divisors for the Nasdaq 100 Index as well as
any changes in such information through the Life of this Agreement, and Nasdaq
hereby grants to the CME a continuing non-exclusive and royalty-free license to
use such information thereafter for the purposes of the CME's Substitute Index.
SECTION 9. MARKING OF LICENSEE'S USE.
9.1 Licensee shall include the following language in its rules at or
prior to the time that Nasdaq 100 Futures Contracts start to trade on Licensee's
market (in conspicuous type, such as at least 11 point type and the second
paragraph in bold) so as to be enforceable under applicable local law(s):
Nasdaq 100 Index Futures and Options on Nasdaq 100 Index Futures
(Products) are not sponsored, endorsed, sold or promoted by The
Nasdaq Stock Market, Inc., (including its affiliates) (Nasdaq, with
its affiliates, are referred to as the CORPORATIONS). The
Corporations have not passed on the legality or suitability of, or
the accuracy or adequacy of descriptions and disclosures relating
to, the Products. The Corporations make no representation or
warranty, express or implied, to the holder of any position in the
Products or any member of the public regarding the advisability of
investing in financial instruments generally or in the Products
particularly, or the ability of the Nasdaq 100 Index to track
general stock market performance. The Corporations' only
relationship to the Chicago Mercantile Exchange (LICENSEE) is in the
licensing of certain trademarks, service marks, and trade names of
the Corporations and the use of the Nasdaq 100 Index, which is
determined, composed and calculated by Nasdaq without regard to
Licensee or the Products. Nasdaq has no obligation to take the needs
of the Licensee or the holder of any position in the Products into
consideration in determining, composing or calculating the Nasdaq
100 Index. The Corporations are not responsible for and have not
participated in the determination of the timing of, prices at, or
quantities of the Products to be issued, or in the determination or
calculation of the equation by which the Products are to be
converted into cash, in the case of Nasdaq 100 Futures, or futures
contracts, in the case of Options on Nasdaq 100 Futures. The
Corporations have no liability in connection with the
administration, marketing or trading of the Products.
THE CORPORATIONS DO NOT GUARANTEE THE ACCURACY AND/OR UNINTERRUPTED
CALCULATION OF THE NASDAQ 100 INDEX-Registered Trademark- OR ANY
DATA INCLUDED THEREIN. THE
8
CORPORATIONS MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE
RESULTS TO BE OBTAINED BY ANY PERSON OR ENTITY FROM THE USE OF THE
NASDAQ 100 INDEX-Registered Trademark-, ANY OPENING, INTRA-DAY,
OR CLOSING VALUE THEREOF, OR ANY DATA INCLUDED THEREIN, OR RELATING
THERETO, IN CONNECTION WITH THE TRADING OF NASDAQ 100 FUTURES OR
OPTIONS ON NASDAQ 100 FUTURES OR FOR ANY OTHER PURPOSE. THE
CORPORATIONS MAKE NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY
DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE WITH RESPECT TO THE NASDAQ 100
INDEX-Registered Trademark-, ANY OPENING, INTRA-DAY, OR CLOSING
VALUE THEREOF, OR ANY DATA INCLUDED THEREIN OR RELATED THERETO, OR
ANY NASDAQ 100 FUTURES CONTRACT OR OPTION ON A NASDAQ 100 FUTURES
CONTRACT. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL
THE CORPORATIONS HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE,
INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN
IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 In all other materials relating or referring to Nasdaq 100
Futures Contracts or Options on Nasdaq 100 Futures Contracts, Licensee shall
include at least this much of the above language, or similar formulation:
The Nasdaq 100 Index-Registered Trademark-, Nasdaq 100-Registered
Trademark-, and Nasdaq-Registered Trademark- are registered marks of
The Nasdaq Stock Market, Inc. (which with its affiliates are the
CORPORATIONS) and are licensed for use by the Chicago Mercantile
Exchange in connection with the trading of Futures and Futures Options
based on the Nasdaq 100 Index (Products). The Products have not been
passed on by the Corporations as to their legality or suitability. The
Products are not issued, endorsed, sold, or promoted by the
Corporations. THE CORPORATIONS MAKE NO WARRANTS AND BEAR NO LIABILITY
WITH RESPECT TO SUCH PRODUCTS.
SECTION 10. LIMITED WARRANTY.
10.1 Nasdaq warrants that it will calculate the Index in accordance
with its then applicable method for calculations of the Index. ONLY IN THE EVENT
THAT NASDAQ IS UNABLE TO CALCULATE THE INDEX IN A REASONABLY ACCURATE MANNER FOR
AN AFFECTED PERIOD OF OVER SEVEN CONSECUTIVE BUSINESS DAYS, WILL NASDAQ BE
LIABLE FOR BREACH OF THE WARRANTIES CONTAINED IN THIS SECTION, AND THEN ONLY TO
LICENSEE AND SUBJECT TO THE LIMITATIONS IN SECTION 13. THE CORPORATIONS DO NOT
REPRESENT OR WARRANT THAT THE INDEX OR THE MEANS BY WHICH NASDAQ CALCULATES THE
INDEX IS FREE
9
OF DEFECTS. THE CORPORATIONS DO NOT REPRESENT OR WARRANT THE TIMELINESS,
SEQUENCE, ACCURACY OR COMPLETENESS OF THE CALCULATION OF THE INDEX, OR THAT
THE INDEX WILL MEET LICENSEE'S REQUIREMENTS. THE FOREGOING WARRANTIES ARE IN
LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED CONDITIONS OR WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, ANY IMPLIED
WARRANTY ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF
PERFORMANCE, AND OF ANY OTHER WARRANTY OR OBLIGATION ON THE PART OF THE
CORPORATIONS.
SECTION 11. REFUNDS.
11.1 Where this Section is cross-referenced, the portion of Fees
refunded shall be the amount of the Fee actually paid which relates to Nasdaq
100 Futures Contracts which have been issued but not yet expired or cancelled.
SECTION 12. INDEMNIFICATION.
12.1 Nasdaq warrants and represents that it has the right to grant
the rights to use the Index and Marks specified in this Agreement and that the
license shall not infringe the title or any patent, copyright, trade secret,
trademark, service xxxx, or other proprietary (INTELLECTUAL PROPERTY) right of
any third party. Nasdaq will as its sole and entire liability and obligation to
Licensee for breach of the foregoing warranty and representation defend,
indemnify, and hold harmless (INDEMNIFY) Licensee (including its officers,
directors, employees, and agents) against any and all claims, demands, actions,
suits or proceedings (DISPUTES) asserting that the Index or any Xxxx infringes
any Intellectual Property right of any third party, and Nasdaq will pay the
third party the total amount of any award, judgment, or settlement (including
all damages however designated) awarded to such third party resulting from the
Dispute to the extent caused by failure of Nasdaq's warranty.
12.2 Except as provided below, Licensee agrees to Indemnify the
Corporations (including their respective officers, directors, employees, and
agents) from any and all Disputes as the result of Licensee's failure to fulfill
its obligations under this Agreement, claims relating to or arising from a
Nasdaq 100 Futures Contract, or any other matter relating to or arising out of
this Agreement except to the extent directly caused by actions of the
Corporations and will pay the third party the total amount of any award,
judgment, or settlement (including all damages however designated) awarded such
third party resulting from such Dispute except to the extent directly caused by
actions of the Corporations. Notwithstanding anything to the contrary in this
Agreement, the CME shall not indemnify or hold the Corporations harmless against
any and all judgments, damages, costs or losses of any kind (including
reasonable attorneys' fees) as a result of any claim, action or proceeding that
arises out of or relates to: (i) the willful or intentional misconduct of any of
the Nasdaq parties, (ii) miscalculation or errors in the Index or any data
included therein originated by Nasdaq or its agents acting within the
10
scope of their authority, or (iii) any breach by Nasdaq of its
representations, warranties or agreements made in this Agreement.
12.3 The right to be Indemnified shall apply to a Dispute only
if:
(a) the party seeking indemnification promptly, and within no more
than 5 calendar days of its receipt of notice of a Dispute, gives
Notice to the other party of the Dispute;
(b) the party seeking indemnification cooperates fully with the
other party in the defense thereof (such cooperation does not
require and is without waiver by either party of any attorney/
client, work product, or other privilege);
(c) the indemnifying party has sole control of the defense and all
related settlement negotiations.
12.4 In the event of a Dispute involving infringement, or if in
Nasdaq's opinion such a Dispute is likely to occur, or if the use of the Index
or Marks is enjoined, Nasdaq may, at its sole option and expense, procure for
Licensee the right to continue using the Index or Marks, replace or modify the
Index or Marks to cause them to become non-infringing, or terminate the Term of
the Agreement (with a refund of Fees as calculated in Section 11).
SECTION 13. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY RESULTING FROM THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE CORPORATIONS AND EXCEPT TO THE
EXTENT STATED IN SECTIONS 12 AND 16, THE TOTAL AMOUNT OF THE CORPORATIONS'
LIABILITY FOR CLAIMS OR LOSSES BASED UPON, ARISING OUT OF, RESULTING FROM OR IN
ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, WHETHER
BASED UPON CONTRACT, TORT, WARRANTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE
AVERAGE ANNUAL LICENSE FEES ACTUALLY PAID TO NASDAQ HEREUNDER (OR IN THE CASE OF
THE FIRST YEAR AFTER THE DATE OF EXECUTION OF THE AGREEMENT, $100,000). THE
ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE CORPORATIONS' LIABILITY
UNDER THIS AGREEMENT. BOTH PARTIES UNDERSTAND AND AGREE THAT THE TERMS OF THIS
AGREEMENT REFLECT A NEGOTIATED AND REASONABLE ALLOCATION OF RISK AND LIMITATIONS
GIVEN THE COMMERCIAL REALITIES OF THE TRANSACTIONS.
SECTION 14. CONSEQUENTIAL DAMAGES. EXCEPT AS NOTED IN SECTION 12 AND EXCEPT FOR
BREACH OF SECTION 16, THE CORPORATIONS SHALL NOT BE LIABLE TO THE LICENSEE OR
ANY OTHER PERSON FOR ANY LOST PROFITS, ANTICIPATED PROFITS, LOSS BY REASON OF
SHUTDOWN IN OPERATION OR INCREASED EXPENSES
11
OF OPERATION, LOSS OF GOODWILL, LOSS CAUSED IN THE SALE OF, PURCHASE OF, OR
BY NASDAQ 100 FUTURES CONTRACTS, OR CONSEQUENTIAL, INCIDENTAL, INDIRECT,
PUNITIVE, OR SPECIAL DAMAGES, EVEN IF THE CORPORATIONS HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
SECTION 15. FORCE MAJEURE. Notwithstanding any other term or condition of this
Agreement, neither Nasdaq nor Licensee shall be obligated to perform or observe
its obligations undertaken in this Agreement (except for obligations to make
payments hereunder) if prevented or hindered from doing so by any circumstances
beyond its control, including, without limitation, acts of God, perils of the
sea and air, fire, flood, drought, war, explosion, sabotage, terrorism, embargo,
civil commotion, acts of any governmental body, supplier delays, communications
or power failure, equipment or software malfunction, and labor disputes.
SECTION 16. CONFIDENTIALITY. Each party shall protect information declared by
the other to be CONFIDENTIAL or PROPRIETARY. In fulfilling its confidentiality
obligations, each party shall use a reasonable standard of care, which shall not
be less than the standard of care which it uses to protect its own similar
confidential or proprietary information. All confidential or proprietary
information must be conspicuously marked PROPRIETARY or CONFIDENTIAL.
Information revealed orally becomes subject to protection when related to marked
written materials or when designated as PROPRIETARY or CONFIDENTIAL as long as
the designation is confirmed in writing within 10 calendar days of the
designation. Either party (including the Corporations) may disclose information
to the extent demanded by a court, revealed to a government agency with
regulatory jurisdiction over the party (including the Corporations), or in the
party's regulatory responsibilities over its members, associated person,
issuers, or others under the Exchange Act, CEA, or similar applicable law. The
obligation of non-disclosure shall not extend to: (1) information which is then
already in the possession of the party (including the Corporations) while not
under a duty of non-disclosure; (2) information which is generally known or
revealed to the public or within the applicable industry; (3) information which
is revealed to the party (including the Corporations) by a third party--unless
the party (including the Corporations) knows that such third party is under a
duty of nondisclosure; or (4) information which that party (including the
Corporations) develops independently of the disclosure. Each copy, including its
storage media, shall be marked with all notices which appear on the original.
The obligation of non-disclosure shall survive for a period of three years from
the date of disclosure.
SECTION 17. NON-USE OF NASDAQ NAME AND MARKS. Except as provided hereunder,
Licensee shall not use the names National Association of Securities Dealers
Inc., The Nasdaq Stock Market, Inc., "NASD," or "Nasdaq," in any advertising or
promotional media without the prior written consent of Nasdaq. Except as
provided hereunder, Licensee shall not use any trademark, service xxxx,
copyright, or patent of the Corporations, registered or unregistered, without
written consent of Nasdaq.
12
SECTION 18. SURVIVAL OF PROVISIONS. The terms of this Agreement shall apply to
any rights that survive through the Life of this Agreement or the cancellation,
termination, or rescission of this Agreement, namely--Confidentiality, Non-Use
of Nasdaq Name and Marks, Indemnification, any warranties, and any rights that
Licensee may have under Section 8.5.
SECTION 19. CANCELLATION.
19.1 Either party may elect, without prejudice to any other
rights or remedies, to terminate the Term of this Agreement, upon ***** days
Notice with an opportunity to cure within the stated period, if the other
party has failed to perform any material obligation under this Agreement.
Nasdaq may elect, without prejudice to any other rights or remedies, to
terminate this Agreement, upon ***** days Notice with an opportunity to cure
within the stated period, if Nasdaq 100 Futures Contracts have not commenced
trading on Licensee's market within one year of the date the CFTC designates
Licensee as a contract market to trade Nasdaq 100 Futures Contracts.
19.2 Either party may elect, without prejudice to any other
rights or remedies, to terminate the Term of this Agreement without Notice,
if a petition in bankruptcy has been filed by or against the other party or
the other party has made an assignment for the benefit of creditors, or a
receiver has been appointed for the other party or any substantial portion of
the other party's property, or the other party's or its officers or directors
takes action approving or make an application for any of the above.
19.3 Licensee represents and warrants that at each time there is
any Issuance of a Nasdaq 100 Futures Contract it and each of its involved
entities shall have all applicable authority to Issue such futures contract
or futures option contract and that each such futures contract or futures
option contract is issued strictly in accordance with all applicable legal
requirements. If Nasdaq reasonably believes that any Nasdaq 100 Futures
Contracts is illegal or has been illegally issued, Nasdaq may elect, without
prejudice to any other rights or remedies, to terminate this Agreement with
reasonable Notice, provided there is an opportunity to cure within the period
specified in the Notice.
19.4 Either party may elect, without prejudice to any other
rights or remedies, to terminate this Agreement, with ***** days Notice (or
in the event of an emergency, with such Notice as is practicable), if either
party's ability to perform its obligations under this Agreement is
substantially impaired by any statute, rule, regulation, order, opinion,
judgment, or injunction of the SEC, CFTC, a court, an arbitration panel, or
governmental body or Self-Regulatory Organization with jurisdiction or
control over the party.
19.5 Upon any termination of the Term of this Agreement, Licensee
shall not list for trading additional series of Options on Nasdaq 100 Futures
Contracts except in expiration months already listed on the date of such
termination; provided, however, that Licensee may continue to list additional
series in the two near-term expiration months until expiration of Options on
Nasdaq 100 Futures Contracts in the last expiration month already listed on the
date of such termination.
13
SECTION 20. SUBSEQUENT PARTIES; LIMITED RELATIONSHIP. This Agreement shall inure
to the benefit of and shall be binding upon the parties hereto and their
respective permitted successors, or assigns. Licensee shall not assign this
Agreement (including by operation of law) without the written consent of Nasdaq.
Nothing in this Agreement, express or implied, is intended to or shall (a)
confer on any person other than the parties hereto (and any of the
Corporations), or their respective permitted successors or assigns, any rights
to remedies under or by reason of this Agreement; (b) constitute the parties
hereto partners or participants in a joint venture; or (c) appoint one party the
agent of the other.
SECTION 21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all prior negotiations, communications, writings and understandings.
SECTION 22. GOVERNING LAW. This Agreement shall be deemed to have been made in
the United States, District of Columbia and shall be construed and enforced in
accordance with, and the validity and performance hereof shall be governed by,
the laws of the District of Columbia, without reference to principles of
conflicts of laws thereof. Licensee hereby consents to submit to the
jurisdiction of the courts in or for the District of Columbia in connection with
any action or proceeding instituted relating to this Agreement.
SECTION 23. AUTHORIZATION. This Agreement shall not be binding upon a party
unless executed by an authorized officer of that party. Licensee, Nasdaq, and
the persons executing this Agreement represent that such persons are duly
authorized by all necessary and appropriate corporate or other action to execute
the Agreement on behalf of Nasdaq or Licensee.
SECTION 24. HEADINGS. Section headings are included for convenience only and
are not to be used to construe or interpret this Agreement.
SECTION 25. NOTICES. All notices, invoices, and other communications required to
be given in writing under this Agreement (NOTICES) shall be directed to the
persons identified in subsections (a) and (b) below and shall be deemed to have
been duly given upon actual receipt by the parties, or upon constructive receipt
if sent by certified mail, return receipt requested (as of the date of signature
or of first refusal of the return receipt), or any other delivery method which
obtains a signed delivery receipt, addressed to the persons named below at the
addresses identified below or to such other address as any party shall hereafter
specify by written Notice to the other party hereto:
(a) if to Licensee:
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Economist
Address: Chicago Mercantile Exchange
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone #: (000) 000-0000
14
with copies to:
Name: Xxxx X. X'Xxxxx
Title: Senior Vice President and General Counsel
Address: Chicago Mercantile Exchange
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone #: (000)000-0000
(b) if to Nasdaq:
Name: Xxxx Xxxx
Title: Executive Vice President, The Nasdaq Stock
Market, Inc.
Address: The Nasdaq Stock Market, Inc.
11th Floor
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone #: (000) 000-0000
With, in the event of notices of Dispute or default, a required copy to:
The Nasdaq Stock Market, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Office of General Counsel - Nasdaq Contracts Group
SECTION 26. AMENDMENT, WAIVER, AND SEVERABILITY.
26.1 Except as otherwise provided herein, no provision of this
Agreement may be amended, modified, or waived, unless by an instrument in
writing executed by a duly authorized officer of the party against whom
enforcement of such amendment, modification, or waiver is sought (CONSENT).
26.2 No failure on the part of Nasdaq or Licensee to exercise, no
delay in exercising, and no course of dealing with respect to any right, power,
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power, or privilege preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege under this Agreement.
26.3 If any of the provisions of this Agreement, or application
thereof to any person or circumstance, shall to any extent be held invalid or
unenforceable, the remainder of this Agreement, and the application of such
terms or provisions to persons or circumstances other than those as to which
they are held invalid or unenforceable, shall not be affected thereby and each
such term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
15
SECTION 27. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and such counterparts
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers.
The Nasdaq Stock Market, Inc.
(NASDAQ)
By: /s/ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
Date: April 3, 1996
Chicago Mercantile Exchange
(LICENSEE)
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Date: April 5, 1996
16
Amendment to Licensing Agreement for the Nasdaq 100
Index-Registered Trademark- FOR NASDAQ 100-RELATED FINANCIAL
PRODUCTS TRADED ON ORGANIZED MARKETS
This AMENDMENT amends the above referenced Agreement between the
Chicago Mercantile Exchange (CME) and The Nasdaq Stock Market, Inc. (NASDAQ),
dated April 3, 1996, in the following ways.
1. CME wishes to disseminate a number which it represents is an
unofficial value which mimics the value of the Nasdaq 100
Index-Registered Trademark- (INDEX), but is disseminated more often
than the Index (QUICK CASH VALUE) only on the floor of its market, and
only to its members (and incidental invitees) while on the floor of its
market.
2. Using a mutually agreed upon notice, CME will appropriately
notify its members of the nature of the Quick Cash Value, including,
that: (1) Nasdaq has no responsibility or liability for the creation,
calculation, accuracy, or dissemination of the Quick Cash Value; and
(2) the Quick Cash Value may or may not accurately reflect the value of
the Index.
3. The Quick Cash Value is neither an Index nor a Substitute
Index for purposes of the Agreement.
Chicago Mercantile Exchange (CME)
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
AUTHORIZED OFFICER
Date: ________________________
Executed this _____ day of _________, 19___, for and on behalf of:
The Nasdaq Stock Market, Inc. (NASDAQ)
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive VP
AUTHORIZED OFFICER
Date: 5/6/96
