Exhibit 2.1
E XECUTION C OPY
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF
MERGER
This AMENDMENT NO. 2, dated as of
July 18, 2008 (this “ Amendment ”), to the
Agreement and Plan of Merger, dated as of March 17, 2008 and
amended as of June 30, 2008 (the “ Agreement
”), is by and among CME Group Inc., a Delaware corporation
(“ CME Group ”), CMEG NY Inc., a Delaware
corporation and a direct, wholly-owned Subsidiary of CME Group
(“ Merger Sub ”), NYMEX Holdings, Inc., a
Delaware corporation (“ NYMEX Holdings ”), and
New York Mercantile Exchange, Inc., a Delaware non-stock
corporation and a wholly-owned Subsidiary of NYMEX Holdings
(“ NYMEX ”).
RECITALS
WHEREAS, CME Group, Merger Sub,
NYMEX Holdings and NYMEX desire to amend and supplement certain
terms of the Agreement as described in this Amendment;
and
WHEREAS, the Boards of Directors of
CME Group, Merger Sub, NYMEX Holdings and NYMEX have each
determined that the Amendment is consistent with, and will further,
their respective business strategies and goals, and have deemed it
advisable and in the best interests of their respective companies
and stockholders that NYMEX Holdings merge with and into Merger
Sub; and
WHEREAS, all capitalized terms not
defined in this Amendment shall have the meaning ascribed to such
terms in the Agreement.
NOW, THEREFORE, in consideration of
the premises, and of the representations, warranties, covenants and
agreements contained herein and in the Agreement, the Parties agree
as follows:
1. Amendment to
Section 1.1 . Section 1.1 of the Agreement is hereby
amended as follows:
(a) Each of the following
definitions is deleted in its entirety: “ Current
Products ”, “ Designated Provisions ”,
“ Designated Provisions Dispute ”, “
JAMS ”, “ Member Waiver and Release
”, “ Membership Purchase Agreement ”,
“ Membership Purchase Offer ”, “
Membership Purchase Offer Documents ”, “
Minimum Condition ”, “ Quarterly Financial
Tests ”, “ Trading Floor ”, “
Trading Floor Permits ” and “ Trading
Structure Revisions ”.
(b) The following definition is
added immediately after the definition of “ Closing
Date ”: “‘ Closing NYMEX Class A
Member ’ has the meaning set forth in
Section 6.1(c) .”
(c) The following definition is
added immediately after the definition of “ Membership
Interests ”: “‘ Membership Rights
Payment ’ has the meaning set forth in
Section 6.16(a) .”
(d) The following definitions are
added immediately after the definition of “ NYMEX
”:
(i) “‘ NYMEX
Bylaws ’ means the Bylaws of NYMEX as in effect on the
date hereof.”
(ii) “‘ NYMEX
Charter ’ means the Amended and Restated Certificate of
Incorporation of NYMEX as in effect on the date
hereof.”
(e) The definition of “
NYMEX Holdings Identified Representations ” is hereby
amended and restated in its entirety as follows: “‘
NYMEX Holdings Identified Representations ’ means
Section 3.3 , Section 3.4 ,
Section 3.5 and Section 3.11
.”
(f) The following definition is
added immediately after the definition of “
Self-Regulatory Organization ”: “‘
Severance Benefit Waiver ’ has the meaning set forth
in Section 6.19 .”
(g) The following definitions are
added immediately after the definition of “ Voting and
Support Agreement ”:
(i) “‘ Waiver and
Release ’” has the meaning set forth in
Section 6.1(b) .”
(ii) “‘ Waiver and
Release Documents ’” has the meaning set forth in
Section 6.1(b) .
2. Amendment to
Section 1.9(a) . Section 1.9(a)(iii)(1) of the
Agreement is hereby amended by deleting the reference to “
Section 7.2(e) ” and replacing it with the reference
to “ Section 7.2(d) ”.
3. Amendment to
Section 1.10(a) . Section 1.10(a) of the Agreement is
hereby amended and restated in its entirety as follows:
“Not less than twenty-six
(26) days prior to the anticipated Effective Time (the “
Mailing Date ”), an election form in such form as CME
Group shall specify (the “ Election Form ”)
shall be mailed to each holder of record of shares of NYMEX
Holdings Common Securities not greater than five (5) Business
Days prior to the Mailing Date (the “ Election Form Record
Date ”).”
4. Amendment to
Section 1.13(a) . Section 1.13(a) of the Agreement is
hereby amended by deleting all references to “ Section
7.2(e) ” and replacing them with references to “
Section 7.2(d) ”.
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5. Amendment to
Section 3.3(f) . Section 3.3(f) of the Agreement is
hereby amended, solely for the purpose of the bring-down of such
representation to the Closing Date as set forth in the condition
contained in Section 7.2(b) of the Agreement, by deleting the
clause “Except for the Membership Purchase Offer,” from
the beginning of the third sentence.
6. Amendment to
Section 3.4(c) . Section 3.4(c) of the Agreement is
hereby amended and restated in its entirety as follows, solely for
the purpose of the bring-down of such representation to the Closing
Date as set forth in the condition contained in Section 7.2(b)
of the Agreement:
“The Board of Directors of
NYMEX Holdings, at meetings duly called and held, duly and
unanimously adopted resolutions (i) determining that the terms
of the Merger and the other transactions contemplated by this
Agreement are advisable, fair to and in the best interests of NYMEX
Holdings and its stockholders, (ii) approving this Agreement,
the Merger and the other transactions contemplated by this
Agreement, (iii) approving the Voting and Support Agreements,
(iv) approving the Membership Rights Payments and
(v) recommending that NYMEX Holdings’ stockholders adopt
this Agreement.”
7. Amendment to
Section 5.1 . Section 5.1 of the Agreement is hereby
amended as follows:
(a) Section 5.1(b) of the
Agreement is hereby amended and restated in its entirety as
follows:
“(i) declare, set aside, make
or pay any dividend or other distribution (whether in cash, stock
or property) in respect of any of its Securities or Membership
Interests, other than dividends or distributions by wholly owned
NYMEX Holdings Subsidiaries to NYMEX Holdings or regular quarterly
cash dividends by NYMEX Holdings consistent with past practice to
holders of NYMEX Holdings Common Securities, which shall not exceed
$0.10 per share per calendar quarter, (ii) split, combine or
reclassify any of its Securities or Membership Interests or issue
or propose or authorize the issuance of any other Securities,
Membership Interests or Equity Rights in respect of, in lieu of, or
in substitution for, shares of its Securities or Membership
Interests, other than (A) the conversion of the NYMEX Holdings
Series A-3 Common Stock and NYMEX Holdings Series B-3 Common Stock
into NYMEX Holdings Common Stock pursuant to the terms of the
Amended and Restated Certificate of Incorporation of NYMEX Holdings
as in effect on the date of this Agreement or (B) issuances of
NYMEX Holdings Common Stock in connection with the exercise of
NYMEX Holdings Stock-Based Awards issued pursuant to a NYMEX
Holdings Benefit Plan prior to the date of this Agreement or
(iii) repurchase, redeem or otherwise acquire any Securities,
Membership Interests or Equity Rights of NYMEX Holdings or any
NYMEX Holdings Subsidiary, or any other equity interests or any
rights, warrants or options to acquire any such Securities,
Membership Interests or Equity Rights;”
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(b) Section 5.1(f) of the
Agreement is hereby amended and restated in its entirety as
follows:
“(i) make any loans, advances
or capital contributions to, or investments in, any other Person
other than (A) by NYMEX Holdings or any wholly owned NYMEX
Holdings Subsidiary to or in NYMEX Holdings or any wholly owned
NYMEX Holdings Subsidiary or (B) pursuant to any contract or
other legal obligation existing at the date of this Agreement set
forth on Section 5.1(f) of the NYMEX Holdings
Disclosure Letter, (ii) create, incur, guarantee or assume any
Indebtedness, issuances of debt securities, guarantees, loans or
advances not in existence as of the date of this Agreement, except
(A) Indebtedness incurred in the ordinary course of business
not to exceed $5,000,000 in the aggregate, (B) Indebtedness in
replacement of existing Indebtedness on customary commercial terms,
but in all cases consistent with the Indebtedness being replaced,
and (C) guarantees by NYMEX Holdings of Indebtedness of
wholly-owned NYMEX Holdings Subsidiaries or guarantees by
Subsidiaries of Indebtedness of NYMEX Holdings or (iii) other
than as set forth in NYMEX Holdings’ capital budget, a copy
of which was delivered to CME Group prior to the date hereof, make
or commit to make any capital expenditure;”
(c) Section 5.1(v) of the
Agreement is hereby amended by deleting the word “or”
at the end of the section.
(d) A new Section 5.1(w) of the
Agreement is hereby added (and, accordingly, former
Section 5.1(w) of the Agreement hereby becomes
Section 5.1(x) of the Agreement) as follows:
“modify, amend, waive, release
or eliminate any Severance Benefit Waiver; or”
8. Amendment to
Section 6.1 . Section 6.1 of the Agreement is hereby
amended and restated in its entirety as follows:
“Section 6.1 Preparation
and Mailing of NYMEX Member Meeting Notice.
(a) As promptly as reasonably
practicable following the date hereof and concurrently with the
preparation of the Joint Proxy Statement/Prospectus pursuant to
Section 6.2 (Preparation and Mailing of the Joint Proxy
Statement/Prospectus), NYMEX Holdings and NYMEX shall prepare, in
form and substance reasonably satisfactory to CME Group, materials
that shall constitute the special meeting notice relating to the
matters to be submitted to the members of NYMEX at the NYMEX Member
Meeting (the “ NYMEX Member Meeting Notice ”).
The Boards of Directors of NYMEX Holdings and NYMEX
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agree, subject to
Section 6.6 (No Solicitation), (x) to use
commercially reasonable efforts to seek the NYMEX Member Approval
and (y) to not take or authorize any action or make any public
statement in connection with the NYMEX Holdings Stockholders
Meeting or the NYMEX Member Meeting inconsistent with the foregoing
obligations.
(b) As promptly as practicable
following July 18, 2008, CME Group shall prepare, in form and
substance reasonably satisfactory to NYMEX Holdings and NYMEX,
materials relating to the distribution of the Waiver and Release as
may be necessary to facilitate the Membership Rights Payments,
including without limitation, the waiver and release in the form
attached hereto as Exhibit F (the “ Waiver and
Release ” and, collectively, such materials, the “
Waiver and Release Documents ”).
(c) Promptly after the Effective
Time, NYMEX shall and NYMEX Holdings shall cause NYMEX to mail to
each owner of record of a NYMEX Class A Membership as of the
close of business on the Closing Date (a “ Closing NYMEX
Class A Member ”), the Waiver and Release
Documents.
(d) Prior to the distribution by
NYMEX Holdings or NYMEX of any written communications, including
the Waiver and Release Documents and the NYMEX Member Meeting
Notice, to the holders of the NYMEX Class A Memberships, CME
Group and its Representatives shall be given a reasonable
opportunity (but in any event no less than five (5) Business
Days) to review and comment on such material written
communications.”
9. Amendment to
Section 6.2(a) . Section 6.2(a) of the Agreement is
hereby amended and restated in its entirety as follows:
“As promptly as reasonably
practicable following the date hereof, CME Group and NYMEX Holdings
shall prepare and file with the SEC mutually acceptable proxy
materials that shall constitute the proxy statement/prospectus
relating to the matters to be submitted to the stockholders of CME
Group at the CME Group Stockholders Meeting and to the stockholders
of NYMEX Holdings at the NYMEX Holdings Stockholders Meeting (such
proxy statement/prospectus, and any amendments or supplements
thereto, the “ Joint Proxy Statement/Prospectus
”) and CME Group shall prepare and file the Form S-4. The
Joint Proxy Statement/Prospectus will be included in and will
constitute a part of the Form S-4 as CME Group’s prospectus.
The Form S-4 and the Joint Proxy Statement/Prospectus shall comply
as to form in all material respects with the applicable provisions
of the Securities Act and the Exchange Act and the rules and
regulations thereunder. CME Group and NYMEX Holdings shall
cooperate with each other and provide to each other all information
necessary in order to prepare the NYMEX Member Meeting Notice, the
Membership Waiver and Release Documents, the Form S-4 and the Joint
Proxy Statement/Prospectus, and shall provide promptly to the other
party any information such party may obtain that could necessitate
amending any such document.”
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10. Amendment to
Section 6.8 . Section 6.8 of the Agreement is hereby
amended and restated in its entirety as follows:
“Subject to
Section 8.3 (Termination Fee), whether or not the
Merger is consummated, all Expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such Expenses, except (a) with
respect to Expenses of printing and mailing the Joint Proxy
Statement/Prospectus, all filing and other fees paid to the SEC in
connection with the Merger and all fees associated with the HSR
Act, which shall be borne equally by CME Group and NYMEX Holdings
and (b) if this Agreement is terminated pursuant to
Section 8.1(c)(iv) (No Member Approval) and a fee is
not payab
