EXHIBIT 10.17
This AMENDMENT AND SUPPLEMENT TO THE
DELIVERY AND LICENSE AGREEMENT AND THE SUPPORT AGREEMENT is made as
of December 14, 2005 (the “ Effective Date
”) between OMX (US) Inc. a New York corporation with its
principal place of business at 140 Broadway, New York, NY 10005
(“ OMX ”), and International Securities
Exchange, Inc., a Delaware corporation with its principal place of
business at 60 Broad Street, New York, NY 10004 (“ ISE
”). OMX and ISE are hereinafter referred to collectively as
the “ Parties ” or individually as a “
Party ”.
WITNESSETH:
WHEREAS, OMX’s parent
corporation, OMX Technology AB (formerly OM Technology AB) and ISE
have entered into a certain Delivery and License Agreement, dated
as of March 1998, as amended in January 1999 (the “
DLA ”), and a certain Support Agreement, dated as of
March 1998, as replaced in December 2003 (the “ SA
”), pursuant to which OMX provides to ISE with a license for,
and support of, software systems;
WHEREAS, in light of certain
business and technical factors, the Parties amended and
supplemented the DLA and the SA pursuant to which OMX Technology AB
granted ISE a broadened license to trade certain instruments in the
US, as well as the right to expand such license to additional
instruments both within the US and outside the US (the
“Broadened License Agreement”);
WHEREAS, the obligations and rights
conferred by those agreements were assigned in writing by OMX
Technology AB to OMX in June 2004, and such assignment was accepted
by ISE in exchange for other commercial considerations;
and
WHEREAS, in light of additional
business and technical factors, the Parties desire to amend the
Broadened License Agreement, pursuant to which OMX grants ISE the
right to request additional development of the software from OMX
beyond what was granted in the Broadened License
Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants, agreements, representations and warranties
contained herein, the Parties hereby agree to amend and supplement
the Broadened License Agreement, and otherwise maintain the
Broadened License Agreement unchanged (except as otherwise agreed
to in writing) as follows:
ARTICLE I
Definitions
1.01 Defined Terms .
Capitalized terms used herein without definition shall have the
meanings ascribed to them in the DLA, the SA or the Broadened
License Agreement, as the case may be. The following capitalized
terms, as used herein, shall have the meanings set forth
below.
ARTICLE I
2.01 Section 3.03(b) Guaranteed
Enhancement Fee shall be replaced in its entirety
with:
(b) Guaranteed Enhancement
Fee . ISE shall, upon the Effective Date, pay to OMX a
Guaranteed Enhancement Fee of MUSD [***] (US $[***]), payable
over a [***] period, as follows:
|
|
(i)
|
ISE shall pay
MUSD [***] (US $[***]) on [***] (where ISE commits to
consuming a minimum of $[***] worth of hours during the period
[***] to [***]);
|
|
|
(ii)
|
ISE shall pay
MUSD [***] (US $[***]) on [***] (where ISE commits to
consuming a minimum of $[***] worth of hours during the period
[***] to [***]). ISE shall be entitled to consume more than $[***]
during this period, but shall be obligated to pay OMX at a flat
rate of $[***] for such additional hours consumed. The resources
made available under this Amendment and Supplement shall be
approximately evenly distributed over the year. The use of
resources and the scheduling of release
|