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Exhibit 10.10
EXECUTION VERSION
LICENSE
AGREEMENT
THIS AGREEMENT is dated the
1st day of April, 2008, between BGC Partners, Inc. (formerly named
eSpeed, Inc.), a Delaware corporation with offices located at 499
Park Avenue, New York, New York 10022 ( “BGC
Partners” ), and Cantor Fitzgerald, L.P., a Delaware
limited partnership with offices located at 110 East 59th Street,
New York, New York 10022 ( “Cantor”
).
Terms used but not defined
herein shall have the meaning assigned thereto in the Merger
Agreement (as defined below).
“BGC
Partners” means BGC Partners, Inc.
“Board of
Directors” means the Board of Directors of BGC
Partners.
“Business
Day” means any day other than a Saturday, Sunday or other
day on which commercial banks in the State of New York are
authorized or required by Law or executive order to
close.
“Contract”
means any agreement, contract, obligation, promise or
undertaking.
“Copyrights” means any foreign or U.S.
copyright registrations and applications for registration thereof,
and any non-registered copyrights.
“eSpeed”
refers to eSpeed, Inc. prior to the Effective Time of the
Merger.
“Intellectual
Property” means, collectively, all Copyrights, Patents,
Trademarks, Trade Secrets, Internet Assets, Software and other
proprietary rights.
“Internet
Assets” means any Internet domain names and other
computer user identifiers and any rights in and to sites on the
worldwide web, including rights in and to any text, graphics, audio
and video files and html or other code incorporated in such
sites.
“Joint Services
Agreement” means the Amended and Restated Joint Services
Agreement, dated as of October 1, 2005, by and between Cantor
and eSpeed, as amended.
“Law”
means any federal, state, local, municipal or foreign (including
supranational) law, statute, ordinance, rule, regulation, judgment,
order, injunction, decree, arbitration award, agency requirement,
license or permit of any Governmental Authority.
“License”
has the meaning set forth in Section 2 of this
Agreement.
“Merger
Agreement” means the Agreement and Plan of Merger, dated
as of May 29, 2007, by and among BGC Partners, Inc., Cantor
Fitzgerald, L.P., eSpeed, BGC Partners, L.P., BGC Global Holdings,
L.P. and BGC Holdings, L.P., as amended by Amendment No. 1,
dated as of November 5, 2007 and Amendment No. 2, dated
as of February 1, 2008, as it may be amended from time to
time.
“Patents”
means any foreign or U.S. patents and patent applications,
including any divisions, continuations, continuations-in-part,
substitutions or reissues thereof, whether or not patents are
issued on such applications and whether or not such applications
are modified, withdrawn or resubmitted.
“Parties”
means BGC Partners and Cantor, each a
“Party.”
“Person”
means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint
stock company, limited liability company, Governmental Authority or
other entity of any kind, and shall include any successor (by
merger or otherwise) of such entity.
“Software”
means any computer software programs, source code, object code,
data and documentation, including, any computer software programs
that incorporate and run BGC Partners’ pricing models,
formulae and algorithms.
“Subsidiary” of any Person means, as of the
relevant date of determination, any other Person, any corporation
or other Person of which 50% or more of the voting power of the
outstanding voting equity securities or 50% or more of the
outstanding economic equity interest is owned, directly or
indirectly, by such first Person.
“Trade
Secrets” means any trade secrets, research records,
business methods, processes, procedures, manufacturing formulae,
technical know-how, technology, blue prints, designs, plans,
inventions (whether patentable and whether reduced to practice),
invention disclosures and improvements thereto.
“Trademarks” means any foreign or U.S.
trademarks, service marks, trade dress, trade names, brand names,
designs and logos, corporate names, product or service identifiers,
whether registered or unregistered, and all registrations and
applications for registration thereof.
Reference is made to the
Merger Agreement pursuant to which BGC Partners and Cantor agreed
to a termination of the Joint Services Agreement and to the
termination and survival of certain mutual rights and obligations.
In furtherance thereof, BGC Partners for itself and on behalf of
its Subsidiaries that own any right, title or interest in the
software, technology and Intellectual Property that Cantor or its
Subsidiaries (a) owned and contributed to BGC Partners’
Subsidiaries pursuant to the Separation Agreement or
(b) Cantor had a right to use, or that was used by eSpeed for
or
on behalf of Cantor and its
Subsidiaries, prior to the Effective Time under the Joint Services
Agreement (other than any software, technology or Intellectual
Property exclusively used by eSpeed as of the date of the Merger
Agreement for fully electronic brokerage of U.S. Treasuries and
foreign exchange) shall grant Cantor and its Subsidiaries,
effective as of the Effective Time, a non-exclusive, perpetual,
irrevocable, worldwide, non-transferable (except as described
below), and royalty-free license (the “License”
) to all such software, technology and Intellectual Property in
connection with the operation of the business of Cantor and its
Subsidiaries on and after the Closing Date. Notwithstanding the
foregoing, the License shall not constitute an assignment or
transfer of any software, technology or Intellectual Property owned
by a third party if both (i) such assignment or transfer would
be ineffective or would constitute a default under, or other
contravention of, the provisions of a Contract without the approval
or consent of a third party, and (ii) such approval or consent
is not obtained; provided , however , that BGC
Partners agrees to use its commercially reasonable efforts to
obtain any such approval or consent (it being understood that such
efforts shall not require BGC Partners to pay to the third party
any compensation or other remuneration to obtain such approval or
consent). Any enhancements and upgrades of the software, technology
and Intellectual Property provided under the License shall be
provided free of charge to any licensee under the License for one
year following the Closing Date. The License shall not be
transferable except that the License is transferable, in whole or
in part, to any purchaser of (x) all or substantially all of
the business or assets of Cantor or its Subsidiaries; or (y) a
business, division or subsidiary of Cantor or its Subsidiaries
pursuant to a bona fide acquisition of a line of business of
Ca
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