Confidential Treatment Requested
by CBOT Holdings, Inc.
Exhibit 10.2
EXECUTION
AMENDMENT NO. 1
TO THE
AMENDED AND
RESTATED
SOFTWARE LICENSE
AGREEMENT
This Amendment No. 1 to the
Amended and Restated Software License Agreement (this “
Amendment ”), by and between Atos Euronext Market
Solutions Limited, a company incorporated in England and Wales
(“ AEMS ”) and Board of Trade of the City of
Chicago, Inc., a Delaware corporation (the “ CBOT
”), is dated as of December 15, 2005 (the “
Amendment Effective Date ”).
Recitals
A. LIFFE Administration and
Management, a company incorporated in England and Wales (“
LIFFE ”) and the CBOT entered into that certain
Amended and Restated Software License Agreement dated as of
August 3, 2004 (the “ SLA ”). Capitalized
terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the SLA.
B. Subsequent to the execution of
the SLA, LIFFE, AEMS and the CBOT entered into that certain SLA
Release and Novation Agreement dated as of July 22, 2005 (the
“ SLA Novation ”), pursuant to which
(i) LIFFE assigned to AEMS all of LIFFE’s rights, title
and interest in and to the SLA, and all of LIFFE’s
obligations and liabilities under the SLA ( excluding any
such right, title, interest, obligations or liabilities arising
under First Amended SLA Section 3.2.2 and Part 3 of
Schedule I of the First Amended SLA), and (ii) the CBOT
fully discharged LIFFE from the performance of all of LIFFE’s
duties and obligations under the SLA ( excluding any such
right, title, interest, obligations or liabilities arising under
First Amended SLA Section 3.2.2 and Part 3 of Schedule
I of the First Amended SLA) and substituted AEMS as the
CBOT’s counterparty to the SLA.
C. Subsequent to the execution of
the SLA and the SLA Novation, the CBOT requested that AEMS
(a) permit the CBOT to utilize the Trading System to host
electronic trading of certain derivatives products listed by
(i) a division of the Singapore Exchange Derivatives Trading
Limited (“ SGX-DT ”) or (ii) the as yet
unnamed joint venture between the CBOT and SGX-DT (“
CBOT/SGX-DT Joint Venture ”), and (b) provide to
the CBOT various services in relation to such hosting.
D. Section 23 of the SLA
provides that the SLA may be amended only by an instrument in
writing signed on behalf of each of the Parties thereof.
E. AEMS and the CBOT desire to amend
the SLA as set forth below.
Agreements
In consideration of the foregoing
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Amendment to Recital
F . Recital F of the
SLA is hereby amended and restated in its entirety as
follows:
F. Subsequent to the execution of
the agreements described above, the CBOT requested that LIFFE
and/or AEMS (as defined below) (i) permit the CBOT to utilize
the Trading System to host electronic trading of certain
derivatives products listed by one or more of the Minneapolis Grain
Exchange, The Board of Trade of Kansas City,
CONFIDENTIAL INFORMATION REDACTED
AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.
OMITTED PORTIONS INDICATED BY
[**].
Confidential Treatment Requested
by CBOT Holdings, Inc.
Missouri, Inc. and Winnipeg
Commodity Exchange Inc., a wholly owned subsidiary of WCE Holdings
Inc., and, more recently, a division of the Singapore Exchange
Derivatives Trading Limited (“ SGX-DT ”) or the
as yet unnamed joint venture between the CBOT and SGX-DT (“
CBOT/SGX-DT Joint Venture ”) (each, a “
Hosted Exchange ” and, collectively, the “
Hosted Exchanges ”); and (ii) provide to the CBOT
various services in relation to such hosting (the “
Hosting Arrangement ”).
2. Amendments to
Section 1 .
Section 1 of the SLA is hereby amended to include the
following definitions:
“ AEMS ” shall
mean Atos Euronext Market Solutions Limited, a company incorporated
in England and Wales. Pursuant to the terms of that certain SLA
Release and Novation Agreement dated as of July 22, 2005, by
and between LIFFE, AEMS and the CBOT, (i) LIFFE assigned to
AEMS all of LIFFE’s right, title and interest in and to this
Agreement, and all of LIFFE’s obligations and liabilities
under this Agreement ( excluding any such right, title,
interest, obligations or liabilities arising under First Amended
SLA Section 3.2.2 and Part 3 of Schedule I of the First
Amended SLA), and (ii) the CBOT fully discharged LIFFE from
the performance of all of LIFFE’s duties and obligations
under this Agreement ( excluding any such right, title,
interest, obligations or liabilities arising under First Amended
SLA Section 3.2.2 and Part 3 of Schedule I of the First
Amended SLA) and substituted AEMS as the CBOT’s counterparty
to this Agreement.
“ CBOT/SGX-DT Joint
Venture ” shall have the meaning set forth in Recital F
above.
“ SGX-DT ” shall
have the meaning set forth in Recital F above.
The following definition from
Section 1 of the SLA is hereby amended and restated in its
entirety as follows:
“ eSpeed Covenants
” means those Covenants Not to Sue dated December 12, 2005
between the CBOT and eSpeed, a copy of which is attached as
Schedule K hereto.
3. Amendment to
Section 6 .
Section 6 of the SLA is hereby amended to include the
following Section 6.8:
6.8 SGX-DT and CBOT/SGX-DT Joint
Venture . Notwithstanding any provision of this Agreement to
the contrary, at no time shall the CBOT simultaneously host, using
the Licensed Technology, the electronic trading of any derivative
products of the SGX-DT and CBOT/SGX-DT Joint Venture. In the event
the CBOT elects to host electronic trading of SGX-DT, such exchange
shall be the sole Singapore-based Hosted Exchange until such time
as the CBOT delivers to AEMS written notice that CBOT/SGX-DT Joint
Venture shall replace SGX-DT as a Hosted Exchange.
4. Amendment to
Section 30 .
Section 30 of the SLA is hereby amended and restated in its
entirety as follows:
Except as otherwise expressly
provided herein, all notices, certifications, requests, demands,
payments and other communications hereunder: (a) shall be
in
2
CONFIDENTIAL INFORMATION REDACTED
AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.
OMITTED PORTIONS INDICATED BY
[**].
Confidential Treatment Requested
by CBOT Holdings, Inc.
writing; (b) may be delivered
by certified or registered mail, posta
