Exhibit 10-11
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.
AGREEMENT ON DEVELOPMENT AND MAINTENANCE BETWEEN EURONEXT AND THE CME
This agreement is made between Euronext, a cooperative corporation organized and
existing under the laws of the Kingdom of Belgium, with its principal place of
business at ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ and the Chicago Mercantile
Exchange ("CME"), a not-for-profit corporation existing and organized under the
laws of the State of Illinois, with its principal place of business at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, U.S.A.
1. PURPOSE OF THE AGREEMENT
This Agreement is designed to describe the maintenance, support and
development services provided to the CME by Euronext, a corporation that
specializes in the conception and development of trading systems and in
the marketing of these systems to exchanges and other financial
institutions throughout the world. This Agreement also sets out the
general procedures to be followed by the CME in identifying modifications
to the Central Services System, the HUB API or other systems to meet its
business needs and in submitting those needs to Euronext for its
development.
2. DEFINITIONS
A. ANNUAL CME DEVELOPMENT PLAN means the plan described in paragraph
4(B) below.
B. ANNUAL COMMON DEVELOPMENT PLAN means the plan described in paragraph
3(B) of the Agreement on GLOBEX-Registered Trademark- Common
Development between SBF and the CME.
C. BUSINESS FUNCTIONAL SPECIFICATIONS are a written expression of the
general business requirements and operation of a project, but do not
include a detailed technical description of each function or system
included in the project.
D. CENTRAL SERVICES SOFTWARE means the software described in Exhibit 5,
as it currently exists or is later enhanced, that is licensed to CME
pursuant to the NSC License.
E. CENTRAL SERVICES SYSTEM has the meaning given to that term in the
NSC License.
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F. CLASS 1 ERROR. An error will be classified as a Class 1 Error if the
Central Services Software cannot process critical functions in CME's
commercial production environment. Critical functions include any
function that, if not processed correctly, will result in a halt to
trading in one of the markets being served or will result in an
inability to clear trades executed in one of the markets being
served.
G. CLASS 2 ERROR. An error will be classified as a Class 2 Error if the
Central Services Software fails to meet the specifications documents
in a way that makes continued use of the Central Services Software
inconvenient in any material respect or substantially reduces its
value to CME.
H. CLASS 3 ERROR. All other errors that do not have the
consequences defined for Class 1 Errors and Class 2 Errors.
I. COMMON DEVELOPMENTS means those major initiatives and projects that
constitute "common developments" as that term and any payment
obligations are defined in the GLOBEX MOU.
J. COMMON DEVELOPMENT STEERING COMMITTEE means the steering committee
identified in paragraph 3(A) of the Agreement on GLOBEX-Registered
Trademark- Common Development between SBF and the CME.
K. COMMON SOFTWARE shall mean the New York Stock Exchange's software
used as a utility to develop and operate the Central Services
Software.
L. CONFIDENTIAL EXCHANGE INFORMATION means any non-public
information relating to the SBF's or CME's internal business
operations including, but not limited to, information about
exchange members or member firms, their trading positions and
their trading history; information relating to each exchange's
independent software vendors, including their names, technical
requirements and business plans; financial information relating
to an exchange's budget or its actual expenditures or potential
expenditures on non-Common Development work; business plans,
technology plans and marketing strategies that are not included
in the final Annual Common Development Plan; and other
information relating to the core trading and clearing work of
either exchange.
M. EURONEXT RESOURCE COMMITMENT means the Euronext staff resources
identified in the Annual CME Development Plan as described in
paragraph 4.
N. GLOBEX MOU means the GLOBEX Alliance Memorandum of Understanding, to
be signed February 8, 1999 by the CME, SBF and SIMEX, and any later
definitive agreement arising from that MOU.
O. HUB API means the Basic API and the Enhanced API as those terms
are defined in the HUB API Co-Ownership Agreement.
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P. HUB API CO-OWNERSHIP AGREEMENT means the Basic and Enhanced
Application Programming Interface ("API") Ownership and Development
Agreement, signed by CME and Euronext on February 8, 1999.
Q. MAXIMUM RESOURCE COMMITMENT means 2,640 days of work each year.
R. MINIMUM RESOURCE COMMITMENT means 1,320 days of work each year.
S. NEW VERSION means the next generation of Central Services
Software containing significant functional or technical upgrades.
T. NEW RELEASE means changes in a version of the Central Services
Software correcting defaults and introducing some minor functional
or technical enhancements, without changes in the Central Services
Software architecture.
U. NSC LICENSE means the Central Services System (NSC) Software License
and Development Agreement between the CME and SBF Bourse de Paris,
dated June 5, 1997, which was later assigned to Euronext.
V. PERSON means an individual, corporation, partnership, trustee,
trust, regulatory body or agency, government or governmental agency
or other entity (however designated or constituted) and any
unincorporated organization.
W. SUPPLIER shall mean any person, firm or corporation that supplies
materials or any services, necessary for the execution of all or
part of this Agreement, under contract with Euronext.
X. SYNTEC INDEX shall mean the index published by the Federation
Syntec, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇- ▇▇▇▇▇ ▇▇▇▇▇.
3. MAINTENANCE AND SUPPORT SERVICES
A. DESCRIPTION OF MAINTENANCE SERVICES PROVIDED
Throughout the term of this Agreement, Euronext will provide the
following maintenance services to the CME.
1. HOT-LINE SUPPORT. If the CME experiences a problem with
the daily operation of the Central Services Software, the
HUB API or any other system later covered by this
Agreement, CME shall be entitled to call the Euronext
Hot-Line. The Euronext Hot-Line telephone number and
working hours are described in Exhibit 1. Euronext may
change its Hot-Line telephone number or provide additional
numbers by giving written notice to the CME. Euronext
confirms that its Hot-Line will be answered in person (not
by voice mail or another sort of answering system) and that
CME's calls will
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not be placed on hold for more than one minute before CME
is able to talk with a qualified Euronext representative
about a problem.
Attached to this Agreement as Exhibit 2 is a list of up to
seven (7) CME representatives entitled to call the Euronext
Hot-Line. The CME can change this list by giving written
notice to Euronext.
After CME makes a call to the Hot-Line, CME shall confirm the
call within 30 minutes after the call by faxing an error
report indicating the number, date and hour of the call, an
accurate and reasonably detailed description of the problem
encountered and a fair classification of the impact on CME
according to the error correction levels described in
paragraph 3 (A)(2), below.
Upon request from Euronext, the CME shall, at its own cost,
provide to a designated Euronext representative any requested
information, such as paper or electronic files relating to the
error and access to the production environment.
CME's working day schedule is defined in Exhibit 3. Any update
to this schedule shall be communicated to Euronext with at
least two weeks' prior notice, except that CME shall give
Euronext at least one month's notice of any changes to the
schedule for the months of July and August.
2. ERROR CORRECTION
(a) For a Class 1 Error, a Euronext representative
qualified to address the specific problem at issue
shall contact CME within 15 minutes after receiving
the initial Hot-Line call and shall take immediate
and continuous action (beginning in no case later
than one hour after receiving the initial Hot-Line
call) to correct the reported error or to provide a
temporary circumvention. Euronext shall make all
reasonable efforts to correct the reported error or
to provide temporary circumvention within three hours
after receiving the initial Hot-Line call. Throughout
Euronext's work, it shall keep CME regularly informed
of its progress.
(b) For a Class 2 Error, Euronext shall respond to the
error report within two business days and make all
reasonable efforts to provide a correction or a
reasonable circumvention within five business days
after receiving the initial Hot-Line call. Throughout
Euronext's work, it shall keep CME informed of its
progress through verbal progress reports given at
least once every 48 hours.
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(c) For a Class 3 Error, Euronext shall make all
reasonable efforts to provide correction or a
reasonable circumvention within two months.
Throughout Euronext's work, it shall keep CME
informed of its progress through written progress
reports delivered every other Monday after CME's
initial Hot-Line call or through another reporting
mechanism identified by CME.
3. EMERGENCY ON-SITE INTERVENTION. In the event that a Class 1
Error or Class 2 Error cannot be solved through hot-line
intervention or remote diagnostic and intervention methods,
CME and Euronext may jointly decide that an intervention of
Euronext staff is required at CME's site.
In such case, Euronext shall take immediate action to provide
the appropriate resources at CME's site. CME shall reimburse
Euronext for the travel and living expenses of its
representatives as described in paragraph 3(D)(4), but shall
not be required to make further payment to Euronext for these
emergency on-site services, unless it is later determined that
the error was not caused by the Central Services Software, the
HUB API or any other system covered by the Agreement. If the
error is later determined to be caused by a system that is not
covered by the Agreement, the CME shall compensate Euronext
for its efforts at a rate of ***** per person per day (in
addition to the travel and lodging expenses already reimbursed
as required above).
4. DELIVERY OF NEW RELEASES. At CME's request, Euronext shall
deliver to CME, at no additional cost to the CME, New
Releases for the Central Services Software that are
produced at the software development base in Paris;
provided, however, that the CME must pay any additional
costs associated with any on-site intervention work
authorized pursuant to paragraph 3(C). CME is responsible
for the installation of any New Releases at CME's site.
5. CONTRACT MANAGEMENT. All issues related to the maintenance
provided in this Agreement shall be managed by a Euronext
account manager, designated from time to time by Euronext who
shall be the contact person with the CME. The name and phone
number of the Euronext account manager are provided in Exhibit
4.
6. MAINTENANCE FOR LATER ENHANCEMENTS OR MODIFICATIONS. In
exchange for the increased fees described in paragraph
3(D)(3) below, Euronext will provide the maintenance
services described in this Agreement for any modifications
or enhancements to the Central Services Software and the
HUB API and for any other
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development work provided under this Agreement. These
maintenance obligations will begin not later than the end
of the 90-day warranty period relating to that work. When a
new project becomes included under the maintenance
provisions of this Agreement, the parties will revise, and
sign, Exhibit 5 accordingly.
B. MAINTENANCE SERVICES NOT PROVIDED
Euronext shall provide the services described in paragraph 3(A)
above except when: (1) the error originates from a system other than
the Central Services Software, the HUB API or any other system
covered by this Agreement; (2) the error is due to the usage of the
Central Services Software without respecting the environment
prerequisite as described in the installation manual or any
contractual document; (3) no maintenance agreement exists between
CME and SIAC concerning the Common Software; (4) the error arises
from any changes to the Central Services Software or HUB API source
code that has not been approved by Euronext; or (5) the error arises
from any significant modifications made by the CME, to the
configuration or environment of the Central Services Software or the
HUB API or to the configuration or environment specified for any
later project at the time of its delivery about which Euronext has
either not received notice or has confirmed that its maintenance
obligations cannot continue if the changes are made. (For purposes
of this Agreement, extensions built on top of a system will be
considered a modification to the configuration or environment of
that system). The CME will provide notice to Euronext, through a
mutually-agreed upon mechanism, of all significant changes described
above. If Euronext believes the proposed change will cause its
maintenance obligations to end, it will so notify the CME within
five (5) business days. If CME does not receive any notice within
this five-day period, Euronext will be deemed to have approved the
change; provided, however, that Euronext can later notify CME that a
previously-approved change cannot prospectively receive maintenance
support. Euronext and the CME will work together to jointly agree
upon specific guidelines for identifying the types of significant
changes that must be reported to Euronext and that might cause
Euronext to end its maintenance obligations. That set of guidelines
will be finalized and attached as Exhibit 6 to this Agreement no
later than March 12, 1999.
C. DESCRIPTION OF SUPPORT SERVICES PROVIDED
If the CME asks Euronext to provide additional support services that
relate to the Central Services Software, the HUB API or any other
project developed under this Agreement and that are not covered by
paragraph 3(A) above or any development arrangement described in
paragraph 4 below, Euronext shall make all reasonable efforts to
provide this service. These services shall be charged to CME at a
rate of ***** per person per
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day and CME shall reimburse Euronext for the travel and living
expenses of its representatives as described in paragraph 3(D)(4).
D. MAINTENANCE FEES AND OTHER COSTS
1. NSC MAINTENANCE FEES. Euronext shall perform the maintenance
services described in paragraph 3(A) above, during the period
from January 1, 1999 through December 31, 1999, in return for
the payment of a fixed annual fee of *****. The CME shall make
this payment no later than thirty (30) days after receiving an
appropriate invoice from Euronext.
2. HUB API MAINTENANCE FEES. Euronext shall perform the
maintenance services described in paragraph 3(A) above,
beginning on the first day after the 90-day warranty period
for the HUB API expires and ending on December 31, 1999, in
return for the payment of a pro-rated portion of the annual
fee of *****. This pro-rated fee will be calculated in a
way to ensure that the CME is paying only for the portion
of the year that remains after the 90-day warranty period
has expired. The CME shall make this payment no later than
thirty (30) days after receiving an appropriate invoice
from Euronext.
3. ANNUAL FEE INCREASES
Each additional year during the Term of this Agreement, the
annual maintenance fee shall be adjusted in the following
ways:
(a) The maintenance fee shall be adjusted to reflect the
increases in the Syntec Index between the first and last
day of each calendar year.
(b) The maintenance fee shall also be adjusted, at the
beginning of each calendar year and no more than
twice during each calendar year of the Agreement to
reflect an additional amount equal to ***** of the
difference between the value of the Central Services
Software with any New Version purchased by the CME or
new project completed pursuant to a work order under
this Agreement and the value of the Central Services
Software as it existed immediately prior to the
release or completion of the project. For purposes of
this Agreement, the parties recognize that the
Central Services Software had a value, as of December
31, 1998, of *****. The parties also agree that, for
the purpose of identifying the additional maintenance
fee related to the HUB API, they will use the
estimated value of a license, which is *****. These
New
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Version or new project-related increases shall be
prorated so that the CME pays the increased fee only
for the portion of the year that remains after the
New Version has been released or the 90-day warranty
period associated with a new project has expired.
4. EURONEXT TRAVEL AND LIVING EXPENSES. CME agrees that it shall
be responsible for the full reimbursement of transportation
expenses (business class airfare on airlines), as well as
payment of ***** per person per day for the accommodation and
related expenses of Euronext consultants and technicians
working in Chicago to perform services under this Agreement.
Euronext shall be responsible for purchasing and making the
appropriate hotel and travel reservations. Euronext shall
submit to the CME a written invoice for payment of these
expenses and must attach receipts showing the airfare
associated with each person's travel.
4. SERVICES PROVIDED UNDER THE ANNUAL CME DEVELOPMENT PLAN
A. EURONEXT RESOURCE COMMITMENT
During each year of the Agreement, CME shall be entitled to require
Euronext to provide either development work associated with the
Annual CME Development Plan or training specified by the CME for the
number of days (in 220-day increments) that is not less than the
Minimum Resource Commitment and not more than the Maximum Resource
Commitment. CME shall have the right, upon giving 120 days' prior
written notice to Euronext, to increase the initial commitment level
identified in each year's Annual CME Development Plan up to the
Maximum Resource Commitment. If the CME requests that Euronext
perform development work or training that exceeds the Maximum
Resource Commitment for the year, Euronext shall provide those
services on a reasonable efforts basis.
The CME shall pay Euronext ***** each year for the Minimum Resource
Commitment and shall pay Euronext an additional ***** for each
additional 220 days of work required by the Annual CME Development
Plan. The ***** figure will be pro-rated, if the CME increases the
Euronext Resource Commitment as permitted above, so that the CME
pays only for the portion of the year after Euronext has notified
CME that these additional resources are available. These amounts
shall be adjusted each year to reflect the increases in the Syntec
Index between the first and last days of each year. CME shall make
these payments in four equal installments during the first ten (10)
days of each calendar quarter
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throughout the year; provided, however, that the payment for the
first quarter of 1999 shall be made, based on an assumption that
the Annual CME Development Plan will require at least the Minimum
Resource Commitment, no later than February 18, 1999. If the CME
increases the Euronext Resource Commitment as permitted above,
the CME's remaining payment installments shall be increased
correspondingly to account for the prospectively increased costs.
CME understands that any part of the Euronext Resource Commitment
that remains unused at the end of the year will be forfeited.
B. PREPARATION OF THE ANNUAL CME DEVELOPMENT PLAN
1. PRELIMINARY DRAFT OF THE ANNUAL CME DEVELOPMENT PLAN. No later
than October 1 of each year, Euronext will provide the CME
with a preliminary description of its planned development work
for the next year.
No later than five (5) business days after October 15 of each
year, the CME will provide Euronext with a preliminary draft
of the Annual CME Development Plan for the upcoming year. This
preliminary draft will include: (a) an overview of the CME's
proposed project development and training needs and (b) a date
for the necessary completion of each project. Within fifteen
(15) business days, Euronext will review this preliminary
draft and provide the CME with estimates of the number of days
needed to complete each project. Both Euronext and the CME
understand that these preliminary plans and estimates may
change before the Annual CME Development Plan is finalized.
Unless otherwise agreed by the project management committee,
both the CME and Euronext will bear their own costs associated
with the preparation and review of the preliminary draft
described in this paragraph.
2. FINAL VERSION OF THE ANNUAL CME DEVELOPMENT PLAN. No later
than January 15 of each year (March 31, in 1999), the CME
shall provide to Euronext a revised version of the Annual
CME Development Plan. This version of the plan shall
include: (a) the Business Functional Specifications for
each project then listed in the plan; (b) a description of
any training needed during the year; (c) a date for the
necessary completion of each project or training session;
(d) an identification of any portion of the Euronext
Resource Commitment that the CME wants to use to defray
cost sharing obligations with respect to Common
Developments; and (e) a description of any New Versions it
wants to incorporate during the year. Euronext shall review
this revised version of the plan and, within fifteen (15)
business days, provide the CME with a reasonable estimate
of the Euronext Resource Commitment required for each
project or training session. No later than
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February 15 of each year, the CME shall incorporate the
Euronext estimates into its plan and distribute a final
version of the plan to Euronext. Unless otherwise agreed by
the project management committee, both the CME and Euronext
will bear their own costs associated with the preparation
and review of the final version described in this paragraph.
The CME can revise this plan before a work order has been
issued, in its sole discretion, at any time throughout the
year by notifying Euronext of the modifications.
C. EURONEXT'S ROLE IN THE PREPARATION OF THE ANNUAL COMMON
DEVELOPMENT PLAN
1. PRELIMINARY DRAFT OF THE ANNUAL COMMON DEVELOPMENT PLAN.
No later than five (5) business days after October 15 of
each year, the CME, acting jointly wish SBF, will provide
Euronext with a preliminary draft of the Annual Common
Development Plan for the upcoming year. This preliminary
draft will include: (a) an overview of the proposed Common
Development needs; and (b) a requested date for the
necessary completion of each project.
Within fifteen (15) business days, Euronext will review this
preliminary draft and provide the CME and SBF, jointly, with
estimates of the number of days needed to complete each
project. Unless otherwise agreed in advance, CME and Euronext
will bear their own costs associated with the preparation and
review of the preliminary draft described in this paragraph.
2. FINAL VERSION OF THE ANNUAL COMMON DEVELOPMENT PLAN. No
later than January 15 of each year (March 31, in 1999), the
CME, acting jointly with SBF, shall provide to Euronext a
revised version of the Annual Common Development Plan.
This version of the plan shall include: (a) the Business
Functional Specifications for each project then listed in
the plan; and (b) a date for the necessary completion of
each project.
After receiving a copy of this revised version of the plan,
Euronext shall review it and, within fifteen (15) business
days, provide CME and SBF, jointly, with an estimate of the
number of days required for each project. No later than
February 15 of each year, the CME and SBF, jointly, shall
incorporate the Euronext estimates into the plan and
distribute a final version of the plan to Euronext. Unless
otherwise agreed in advance, the CME and Euronext will bear
their own costs associated with the preparation and review of
the final version described in this paragraph.
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D. PREPARATION OF WORK ORDERS
1. DEVELOPING SPECIFICATIONS, RESOURCE ALLOCATIONS AND
DELIVERY PLANS. For each project included in the Annual
CME Development Plan and the Annual Common Development
Plan, CME (or, in the case of Common Developments, the CME
and SBF, jointly) shall issue a written work order to
Euronext that includes the Business Functional
Specifications for the project and the required completion
date for the project. Euronext staff will prepare detailed
technical specifications for the project, identify the
Euronext Resource Allocation needed for the project (or, in
the case of Common Developments, the number of days needed
for the project), including any time spent preparing the
specifications and confirm the delivery plans for the
project. Euronext will use reasonable efforts to complete
this work within ninety (90) calendar days after receiving
the work order. The CME or, for Common Developments, the
CME and SBF, jointly, will review this work and notify
Euronext, within fifteen (15) business days, of any
necessary changes.
The CME (or, when applicable, the CME and SBF, according to
their respective shares) will compensate Euronext for its work
in preparing these materials by paying Euronext a fee equal to
***** per day per person.
2. PREPARING THE FINAL WORK ORDER. After working with
Euronext to finalize the specifications, Euronext Resource
Allocation and delivery plans for the project, the CME (or,
when applicable, the CME and SBF, jointly) will prepare a
final work order for the project. This work order will
include: (a) the final specifications; (b) the Euronext
Resource Allocation for the project (or, for Common
Developments, the number of days needed for the project);
(c) the delivery date; and (d) a description of, and the
dates for, acceptance testing. CME or, for Common
Developments, the CME and SBF, jointly, will forward the
final work order to Euronext before any work begins on the
project, but no later than fifteen (15) business days after
receiving the specifications, delivery plans and Euronext
Resource Allocation from Euronext.
3. LATER CHANGES TO THE SPECIFICATIONS. The CME or, for
Common Developments, the CME and SBF, jointly, can make
changes to the specifications included in a work order by
submitting a description of the proposed change to
Euronext, in writing. Euronext will review the requested
change within fifteen (15) business days, make
modifications to the final specifications document and
identify any corresponding changes in either the Euronext
Resource Allocation (or the number of days needed) for
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the project or the delivery date. The CME or, for Common
Developments, the CME and SBF, jointly, will incorporate
any necessary changes to these materials in a revised work
order, with each party signing the revised document to
confirm their new understanding. Euronext will not begin
work on, and the CME or, for Common Developments, the CME
and SBF, jointly, will not be required to pay for, any
change that is not agreed upon as described above.
The CME or, when appropriate, the CME and SBF, according to
their respective shares, will compensate Euronext for its work
in preparing these revised materials by paying Euronext a fee
equal to ***** per day per person.
E. CANCELLATION OF A WORK ORDER
CME can cancel a work order issued pursuant to the Annual CME
Development Plan, at any time and in its sole discretion, by
delivering written notice to Euronext. CME understands that any
payments for any work already performed shall be due and payable,
and that these payments may be made, at the CME's option, either
through direct payments to Euronext or by subtracting the days
worked from CME's annual Euronext Resource Allocation.
Once a final work order issued pursuant to the Annual Common
Development Plan has been delivered to Euronext and Euronext has
started its development work, the work order cannot be cancelled
without the consent of both CME and SBF.
F. GENERAL INFORMATION ABOUT DEVELOPMENT WORK PERFORMED BY EURONEXT
Euronext and the CME agree that the following terms and conditions
apply to all work performed pursuant to a work order under this
Agreement.
1. OWNERSHIP AND USE OF THE DEVELOPMENT WORK. Except for work
that relates to the HUB API, all development work performed
under this Agreement shall constitute CME Enhancements or
Licensed Software as those terms are used in the NSC License
and shall remain the property of Euronext. The CME's use of
these CME Enhancements or Licensed Software shall be governed
by the terms of the NSC License.
Any development work performed under this Agreement that
relates to the HUB API shall be subject to the ownership
rights described in the HUB API Co-ownership Agreement.
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2. DEVELOPMENT AND DELIVERY. Euronext will perform the work
described in each work order, by the agreed-upon delivery
dates, using the agreed-upon number of days or agreed-upon
amounts of the Euronext Resource Allocation.
3. ACCEPTANCE TESTING. Unless otherwise agreed by the parties
in writing, during the first thirty (30) days following
Euronext's delivery of a project, the CME or the persons
appointed by the Common Development Steering Committee
shall conduct the acceptance testing described in the work
order. This acceptance testing shall be designed primarily
to determine whether or not the project operates in
conformance with the specifications included in the work
order. Throughout this testing, the CME or, for Common
Developments, the CME and SBF, jointly will communicate
regularly with Euronext to discuss any potential defects or
malfunctions they discover, and Euronext will begin its
efforts to cure these defects and malfunctions. The CME
or, for Common Developments, the CME and SBF jointly shall
complete the acceptance testing during this 30-day period,
unless they notify Euronext during the acceptance testing
period that they require a longer time due to the existence
of defects or malfunctions.
4. CURING PRE-ACCEPTANCE DEFECTS. Unless otherwise agreed by
the parties in writing, the CME or, for Common
Developments, the CME and SBF, jointly must notify
Euronext, in writing, no later than seven (7) business days
after the end of the acceptance testing period of any
remaining defects or malfunctions that prevent the project
from operating in accordance with the specifications. CME
or, for Common Developments, the CME and SBF jointly must
prioritize these defects, identifying the work that
Euronext should perform first. Euronext, at its sole
expense, will make all reasonable efforts to cure the
identified defects or malfunctions within fifteen (15)
business days after receiving this notice.
5. ACCEPTANCE. When the CME or, for Common Developments, the
CME and SBF, jointly, has confirmed, through the acceptance
testing described in the work order, that the project
operates in accordance with the specifications, the CME or,
for Common Developments, the CME and SBF jointly, will
prepare and deliver to Euronext a written certificate of
acceptance. Acceptance will be presumed to have occurred,
even if the CME or, for Common Developments, the CME and
SBF, jointly, does not deliver a written certificate of
acceptance, if the project is put into production at the
end of the acceptance testing period.
6. LIMITED PRODUCT WARRANTY. During the 90-day period following
acceptance of each separate project, Euronext warrants that
the
13
project will operate in conformance with the specifications
included in the work order and agrees to cure, at its own
expense, any defects or malfunctions in the project within 90
days after being notified that they exist.
7. YEAR 2000 COMPLIANCE WARRANTY. Each project delivered by
Euronext will be Year 2000 compliant in all material
respects. Year 2000 compliant means: (i) that each
component of the programs included in each project that
manipulates and accepts dates to the year 2090 will manage
and manipulate data involving such dates; (ii) such dates
will not cause the programs included in each project to
abnormally end processing; and (iii) the programs included
in each project will not generate incorrect values with
respect to date-dependent data resulting from such dates.
8. EURO COMPLIANCE WARRANTY. Each project when delivered by
Euronext will be Euro compliant in all material respects,
will comply with any legislative changes connected with the
Economic and Monetary Union without requiring any material
rewrites or any further cost or expense to be incurred by
CME or, for Common Developments, by the CME and SBF,
jointly, and will not cause any disruption to the project
attributable to the generation of incorrect values relating
to the Euro as currency. Euro compliant means: (i) that
each component of the project will be capable of supporting
the Euro as an additional currency and/or main currency;
and (ii) that each such component will have been
successfully tested to ensure that its operation will not
be adversely affected by virtue of the Economic and
Monetary Union and/or variation in currency and/or pricing
structures; and (iii) that each such component will
manifest no material errors as a result of the Economic
Monetary Union.
9. EXCLUSIONS AND LIMITATIONS OF LIABILITY. The warranties
relating to Year 2000 and the Euro shall not apply if: (i)
the project is modified or altered by CME or any entity
other than Euronext and/or its affiliates; provided that,
but for such modification or alteration, the project would
be Year 2000 and Euro compliant; or (ii) the operating
system, computer hardware elements (including, but not
limited to, micro-code, BIOS and real time clock), any
third-party software, any interface to third-party
software, and/or any price feed or other third-party data,
cause the project, directly or indirectly, to fail to be
Year 2000 or Euro compliant. Euronext's sole obligation and
CME's sole remedy with respect to these Year 2000 and
Euro-related representations and warranties is for Euronext
to use commercially reasonable efforts to correct the
project.
14
EXCEPT AS SET FORTH IN PARAGRAPHS 4(F)(6) THROUGH (8) ABOVE,
EURONEXT MAKES NO WARRANTIES WITH RESPECT TO THE DEVELOPMENT
WORK DONE PURSUANT TO THIS AGREEMENT AND SPECIFICALLY
DISCLAIMS ANY WAY OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR ANY OTHER EXPRESS OR IMPLIED WARRANTIES. NO
REPRESENTATION OR OTHER AFFIRMATION OF FACT, WHETHER MADE BY
EURONEXT OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS
AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY EURONEXT FOR ANY
PURPOSES OR GIVE RISE TO ANY LIABILITY OF EURONEXT WHATSOEVER.
Euronext's liability for defects or malfunctions in any
project shall be limited to correction of those defects or
malfunctions. For any breach of any other provisions of this
Agreement relating to development work, the CME's exclusive
remedy shall be the recovery of its direct damages. Euronext's
liability for damages to the CME, regardless of the form or
cause of action, whether in contract or in tort, including
negligence, shall not, in the aggregate, exceed the amounts
paid to Euronext by the CME for the project at issue.
In no event shall either the CME or Euronext be liable to the
other or have a remedy for the recovery of any special,
indirect or consequential or incidental damages, whether
foreseeable or not, even if the applicable party has been
advised of the possibility thereof, including, but not limited
to, lost profits, lost revenues, failure to realize expected
savings, or other commercial or economic loss of any kind.
10. PAYMENT FOR NEW VERSIONS. If the CME uses the Euronext
Resource Allocation or pays, as part of a Common
Development project, to develop work that is later
incorporated into a New Version, the CME shall not be
required to pay for the portion of that New Version
attributable to the work already paid for by the CME.
Euronext will make a reasonable determination of the
portion of the New Version attributable to the work already
paid for by the CME.
G. PROJECT MANAGEMENT
1. PROJECT MANAGEMENT COMMITTEE. A project management
committee will oversee the non-Common Development and
training work performed under this Agreement. This
committee shall be comprised of two representatives from
each party. The CME representatives will be chosen from the
following three
15
persons: ▇▇▇▇ ▇▇▇▇▇, CME Executive Vice President and Chief
Information Officer; ▇▇▇▇ ▇▇▇▇▇, CME Vice President,
Electronic Trading Systems; and ▇▇▇▇ ▇▇▇▇▇▇▇, Senior
Director, Customer Support Center. The Euronext
representatives will be chosen from the following three
persons: Francois-Guy Hamonic, Euronext Senior
Executive Vice President; ▇▇▇▇▇▇ ▇▇▇▇▇, Euronext Vice
President; and Francois Hudenot, SBF Project Manager. Any
party to this Agreement can, at its discretion, replace one
or both members of the committee by giving written notice
to the other party.
2. THE PROJECT MANAGEMENT COMMITTEE'S ROLE. The project
management committee will have the following
responsibilities: (a) monitor the work performed during the
preparation of the preliminary drafts and final versions of
the Annual CME Development Plan; and (b) meet at least once
each calendar quarter to discuss the status of current
development work and any performance or quality issues that
have arisen. Any member of the project management committee
has the right to request an audit of any on-going projects
to assess progress toward goals, quality and other issues;
provided, however, that no audit shall be requested until
the party whose work will be audited has been given at
least thirty (30) days' prior written notice that an audit
might be requested and has had the opportunity to address
any concerns raised by the committee member during this
thirty (30) day period. Unless otherwise agreed by the
project management committee, the expenses associated with
any audit will be paid by the party requesting the audit.
3. QUARTERLY PROJECT REVIEW. The project management
committee, and any other persons selected by any
participating committee member, shall attend a project
review meeting, held at a mutually agreed upon date during
the first month of each calendar quarter. These meetings
may be held by teleconference, videoconference or in
person. Each party attending the meting shall bear the
costs associated with its participation. This meeting shall
be held just before or just after any meeting of the
steering committee assembled under the Agreement on GLOBEX
Joint Development and Planning between the CME and SBF.
4. ADDITIONAL MEETINGS. Any project management committee
member can call a meeting of the committee by sending
written notice to the other committee members. These
additional meetings shall be held on mutually agreed upon
dates, within at least ten (10) business days after notice
is received by all committee members, and may be held by
teleconference, videoconference or
16
in person. Each committee member shall make reasonable
efforts to make himself promptly available to attend these
meetings.
5. CONFIDENTIALITY
Except as excluded below, any Confidential Exchange Information and any
information specifically identified, either verbally or in writing, as
confidential, that is obtained under this Agreement by one party from the
other shall be kept on a confidential basis by the party receiving such
information, its officers and employees and, as such, shall not be
disclosed to third parties or used for any purpose other than a purpose
specifically authorized by this Agreement.
The parties recognize that a breach of this paragraph by the other party
may give rise to irreparable injury to the non-breaching party such that
remedies other than injunctive relief may not be adequate. Accordingly,
the non-breaching party has the right to seek from the Tribunal de Grande
Instance de Paris (France) equitable and injunctive relief to prevent the
threatened or actual unauthorized use of any confidential information
covered by this Agreement.
The obligation assumed by the parties in this paragraph shall not apply to
information in the public domain at the time of any possible disclosure or
that subsequently came into the public domain otherwise than by breach of
this Agreement. Nothing in this paragraph prevents either party from
advertising or otherwise promoting all of the functionalities of the NSC
System, the HUB API or any other system subject to this Agreement.
6. PAYMENTS AND TAXES
A. PAYMENT TERMS
All payments that become due during the initial three-year term of this
Agreement will be made in U.S. Dollars and will be made within 30 days
after receiving an appropriate invoice from Euronext. If the parties agree
to extend the agreement for between one and three additional one-year
terms, all payments that become due during these periods will be made in
Euros.
B. TAXES
All amounts payable to Euronext are exclusive of, and will be paid without
deduction for, all taxes, levies, or similar governmental charges, however
designated, which may be assessed by any jurisdiction based on gross
revenue. Except for corporate income tax imposed on Euronext, or other
taxes, fees or duties associated with this Agreement demanded by the
Republic of France, the CME (or the CME and SBF together, for Common
Developments) shall pay all taxes including any related penalties and
interest or late charges, levies, or similar governmental charges or
provide Euronext with a certificate of exemption acceptable to the
appropriate taxing authority. Euronext agrees to provide the
17
CME with such forms or documents as may be reasonably requested by the
CME from time to time to certify exemption from withholding of income
tax.
7. PERSONNEL MATTERS
A. EURONEXT'S EMPLOYEES
Euronext shall be responsible for the payment of the salaries and the
remuneration of its employees, as well as for any other obligations or
taxes in compliance with the labor laws and regulations applicable to
Euronext in France. It is hereby established that no employment bond shall
be formed between the CME and Euronext's employees. Euronext shall
indemnify the CME and hold it harmless from any and all costs, expenses,
liability, claims and demands of any kind that may be filed against the
CME by any such employees alleging the existence of such an employment
bond.
B. RESTRICTION ON HIRING
For the duration of this Agreement, neither party shall offer to employ or
employ individuals employed by the other party or subcontracted by the
other party without the written consent of the other party.
C. IMMIGRATION AUTHORIZATIONS
The CME shall assist Euronext to obtain all immigration authorizations
necessary for Euronext personnel to carry out their activities.
8. TERM AND TERMINATION
A. TERM
This Agreement shall take effect on January 1, 1999 and have an initial
term of three (3) years. The parties can elect, by signing a final
agreement no later than October 1, 2001, to renew the Agreement for one or
more additional one-year periods.
B. TERMINATION
If either party fails to perform any of its material obligations under the
Agreement, and that failure is not remedied within 30 days after notice is
given to the defaulting party specifying the nature of the default, the
non-defaulting party may, upon further notice to the defaulting party
terminate the Agreement as of the date specified in the notice of
termination.
In addition to the termination rights described above, the CME may
immediately terminate the maintenance provisions of this Agreement upon
notice to Euronext if Euronext fails, on at least two occasions within a
six (6) month period and in a substantial way, to provide the error
correction services for Class 1 Errors or
18
Class 2 Errors described in paragraph 3(A)(2). If the CME terminates
the maintenance provisions of this Agreement on this basis, Euronext
shall reimburse the CME on a pro rata temporis basis the amount of the
fee already paid that relates to the remaining duration of the
maintenance provisions of the Agreement and the remaining provisions of
the Agreement not relating to maintenance shall continue in effect.
9. ARBITRATION
A. PRE-ARBITRATION ESCALATION
Except for any disputes that may arise pursuant to paragraph 5, any
dispute between the parties relating to this Agreement shall first be
submitted in writing to a four-person panel consisting of two senior
executives of both Euronext and the CME, who shall promptly meet and
confer in an effort to resolve such a dispute. Each party shall designate
such executives within five (5) business days after receipt of an
appropriate notice from the other party. Each party's executives shall be
identified by notice to the other party, and may be changed at any time
thereafter also by notice to the other. The executives may choose to
commission an audit of technical aspects of the dispute to assist them in
reaching a decision. Such an audit shall be performed by an independent
third party whose identity and terms of reference shall be agreed upon by
the executives. Any decisions of the executives shall be final and binding
on the parties. In the event the executives are unable to resolve any
dispute within thirty (30) days after submission to them (including the
conduct of any audit), either party may then refer such a dispute to
arbitration in accordance with the provisions described below.
B. GENERAL PROVISIONS RELATING TO ARBITRATION
Except for any disputes that may arise pursuant to paragraph 5, all
disputes arising in connection with this Agreement, or the existence,
validity, breach or termination thereof, whether during or after its term
that have not been settled in the form described in paragraph 9(A), shall
be finally settled by compulsory arbitration under the then-current Rules
of Conciliation and Arbitration of the International Chamber of Commerce,
as modified or supplemented in this Article. The arbitration panel shall
consist of three arbitrators. Euronext and the CME expressly agree that
the arbitrators shall permit each party: (1) to request, and shall compel
each party to produce for the other party reasonably in advance of any
hearing, any relevant documents, evidence or witnesses; and (2) to call
and question any witness, including any expert witness, and to
cross-examine any witness called by its opponent. The award of the
arbitrators shall be final and shall constitute the exclusive remedy of
Euronext and the CME for all claims, counterclaims, issues or accounting
presented to the arbitrators. Each award by the arbitrators shall be: (1)
granted and paid in Euros; (2) if such award includes payment from one
party to another, include interest at the rate of one percent each month
from the date of breach or other violation of the Agreement until the date
the award if fully paid; and (3) include the cost of the arbitration and
the
19
prevailing party's reasonable attorneys' fees and expenses. Judgment
upon the final arbitral award may be entered in any court that has
jurisdiction. Any additional costs, fees or expenses incurred by the
prevailing party in enforcing the award shall be charged against and paid
by the party that resists its enforcement. The language of arbitration
shall be English. The place of arbitration shall be Zurich, Switzerland.
10. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
A. GENERAL REPRESENTATIONS AND WARRANTIES OF EURONEXT. Euronext
represents and warrants to the CME as follows:
1. Euronext has the corporate power and the capacity to enter
into and to perform its obligations under this Agreement. This
Agreement has been authorized, executed and delivered by
Euronext and is a valid and binding obligation of Euronext,
enforceable according to its terms.
2. Neither the entering into of this Agreement, nor the
performance by Euronext of any of its obligations under
this Agreement will contravene, breach or result in any
default under the articles, by-laws, constituting documents
or other organizational documents of Euronext or under any
mortgage, lease, agreement, other legally binding
instrument, license, permit, statute, regulation, order,
judgment, decree or law to which Euronext is a party or by
which Euronext may be bound.
3. No other authorization, consent or approval of, or filing with
or notice to, any court or other Person is required in
connection with the execution, delivery or performance of this
Agreement by Euronext.
B. GENERAL REPRESENTATIONS AND WARRANTIES OF THE CME. The CME
represents and warrants to Euronext as follows:
1. The CME has the corporate power and the capacity to enter into
and to perform its obligations under this Agreement. This
Agreement has been authorized, executed and delivered by the
CME and is a valid and binding obligation of the CME,
enforceable according to its terms.
2. Neither the entering into of this Agreement, nor the
performance by the CME of any of its obligations under this
Agreement will contravene, breach or result in any default
under the articles, by-laws, constituting documents or
other organizational documents of the CME or under any
mortgage, lease, agreement, other legally binding
instrument, license, permit, statute, regulation, order,
20
judgment, decree or law to which the CME is a party or by
which the CME may be bound.
3. No other authorization, consent or approval of, or filing with
or notice to, any court or other Person is required in
connection with the execution, delivery or performance of this
Agreement by the CME.
11. INTELLECTUAL PROPERTY INDEMNIFICATION
A. DEFENSE OF CLAIMS AGAINST CME. Euronext shall indemnify CME, its
affiliates and subsidiaries against, and hold these Persons
harmless from, any and all costs, losses, damages, liabilities,
claims and demands incurred by or made against CME by a third
Person alleging that any development work or maintenance services
delivered by Euronext pursuant to this Agreement infringes upon
that Person's proprietary rights. CME will promptly notify
Euronext of any threatened or actual claim covered by this
indemnification and will cooperate with and assist Euronext to
the extent that that cooperation may reasonably be required.
B. REMEDIES. If any development work or maintenance services
delivered by Euronext pursuant to this Agreement is found, by a
final decision of a court of competent jurisdiction, to
constitute an infringement of the proprietary rights to a third
Person, or if Euronext concedes that infringement through a
settlement of a claim, Euronext shall, at its sole option and
expense and in addition to providing the indemnification
described above, either: (1) procure for the CME the right to use
the affected systems in the manner described in the NSC License
or any other applicable agreement; or (2) modify the affected
systems so as to render them non-infringing, or replace them with
a substitute of equal quality approved by the CME, provided that
any modification or substitute must perform according to the
applicable specifications.
12. GENERAL PROVISIONS
A. ASSIGNMENT. This Agreement shall bind and inure to the benefit
of the parties and their respective successors and assigns;
provided, however, that no party may assign or transfer its
rights and obligations under this Agreement, whether totally or
in part, without the prior written consent of the other party.
B. WAIVER. Either party's acceptance of the other's default on any
clauses or conditions shall be regarded as a mere forbearance,
and shall not imply a waiver, alteration or innovation regarding
the fulfillment of any obligation under this Agreement, which may
be claimed at any time.
C. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to its specific subject matter,
superceding
21
any other document formerly entered into between the parties in
this regard; any amendment or change to any of the clauses or
conditions of this Agreement may only be made by written contract
signed by both parties.
D. NOTICE. Any written notice required by this Agreement shall be
made by overnight delivery through a reputable delivery service
such as DHL or Federal Express or through registered first class
mail, postage prepaid, and shall be forwarded to the respective
addresses set forth above, unless another address is substituted
by written notice, and shall be effective seven (7) days after
posting or after delivery, whichever occurs first.
E. FORCE MAJEURE. If any of the obligations of the parties are
prevented, restricted or interfered with by reason of any actual
or impending cause beyond the reasonable control of the affected
party, or force majeure, upon prompt notice to the other party,
the party so affected shall be excused from such performance to
the extent of such prevention, restriction or interference for a
period equal to the period of delay caused by such event; the
party so excused shall make all reasonable efforts to avoid or
remove such causes of non-performance and shall resume
performance with the utmost dispatch whenever such causes are
removed.
F. PARAGRAPH HEADINGS. The paragraph headings contained in this
Agreement are solely for the convenience of the parties and shall
not affect the meaning or interpretation of this Agreement.
G. SEVERABILITY. Each part of this Agreement is a distinct undertaking.
In the event any part of this Agreement shall be determined to be
unlawful, such part shall be deemed severed from this Agreement and
of no effect; every other part of this Agreement not so severed
shall remain in full force and effect.
H. CONTINUING OBLIGATIONS. The obligations and rights under
paragraphs 5, 6, 7(A), 9 and 11 shall survive the completion,
expiration or termination of this Agreement.
I. CHOICE OF LAW. The Contract shall be subject to and construed
and interpreted in accordance with French Law.
J. ENGLISH LANGUAGE. The official language of this Agreement is
English.
AGREED:
EURONEXT CHICAGO MERCANTILE EXCHANGE
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------ ------------------------
22
Its: CEO Its: Executive Vice President, Chief
Information Officer
23
EXHIBIT 1
EURONEXT HOT-LINE NUMBER
WORKING DAYS AND WORKING HOURS
COVERED BY THIS AGREEMENT
==============================================================================
Phone Number 33 1 49 27 15 60
------------------------------------------------------------------------------
Fax Number 33 1 49 27 15 60
------------------------------------------------------------------------------
Working Days (Chicago Time) From Sunday 12:00 (noon) to Saturday 00:00
------------------------------------------------------------------------------
Working Hours 24 hours a day
------------------------------------------------------------------------------
Ex. 1-1
EXHIBIT 2
IDENTIFIED CONTACTS FROM CME ENTITLED
TO CALL THE EURONEXT HOT-LINE
Name Position Phone E-mail
------------------------------------------------------------------------------------------------------------------
1 ▇▇▇▇ ▇▇▇▇▇ V.P. Electronic Trading Systems 1 312 930 2601 ▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------------
2 ▇▇▇▇▇ ▇▇▇▇▇▇ Sr. V.P. Enterprise Computing 1 312 930 8173 ▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------------
3 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Sr. Systems Analyst 1 312 930 3347 ▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------------
4 ▇▇▇ ▇▇▇▇▇▇ Sr. Systems Analyst 1 312 338 7197 ▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------------
5 ▇▇▇▇ ▇▇▇▇▇ Executive Vice President, Chief 1 312 930 3234 ▇▇▇▇▇▇@▇▇▇.▇▇▇
Information Officer
------------------------------------------------------------------------------------------------------------------
6 ▇▇▇▇ ▇▇▇▇▇ Vice President, Electronic Trading 1 312 388 2601 ▇▇▇▇▇▇@▇▇▇.▇▇▇
Systems
------------------------------------------------------------------------------------------------------------------
7 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. Business Analyst 1 312 634 5475 ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------------
Ex. 2-1
EXHIBIT 3
CME WORKING DAYS FOR YEAR 1999
From Sunday 4 P.M. to Friday 8 P.M. Chicago time, except the following holidays:
----------------------------------------------------------------------------------------------------------
Month Day Month Day
----------------------------------------------------------------------------------------------------------
January January 1 July
----------------------------------------------------------------------------------------------------------
February August
----------------------------------------------------------------------------------------------------------
March September
----------------------------------------------------------------------------------------------------------
April October
----------------------------------------------------------------------------------------------------------
May November
----------------------------------------------------------------------------------------------------------
June December December 25
----------------------------------------------------------------------------------------------------------
Ex. 3-1
EXHIBIT 4
EURONEXT ACCOUNT MANAGER
=====================================================================
Name ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------------------
---------------------------------------------------------------------
Phone Number (Work) 33 1 49 27
---------------------------------------------------------------------
Fax Number 33 1 49 27
---------------------------------------------------------------------
Ex. 4-1
EXHIBIT 5
SOFTWARE AND OPERATING SYSTEMS
--------------------------------------------------------------------------
Operating
CENTRAL SERVICES SOFTWARE System Configuration
--------------------------------------------------------------------------
--------------------------------------------------------------------------
NSC Trading Engine G04 Tandem/S70 000
--------------------------------------------------------------------------
NSC Frontal G04 Tandem/S70 000
--------------------------------------------------------------------------
RLS - Ticker plant G04 Tandem/S70 000
--------------------------------------------------------------------------
DIFF - Broadcast Solaris 2.5 Sun
--------------------------------------------------------------------------
Cabine - Monitoring AIX 4.2.1 RS6000
--------------------------------------------------------------------------
SPI Solaris 2.5 Sun
--------------------------------------------------------------------------
Ex. 5-1