LIMITED LIABILITY COMPANY AGREEMENT OF S&P/DOW JONES INDICES LLC DATED AS OF JUNE 29, 2012

Execution Version

LIMITED LIABILITY COMPANY AGREEMENT

OF

S&P/DOW ▇▇▇▇▇ INDICES LLC

DATED AS OF JUNE 29, 2012

THE SECURITIES ISSUED PURSUANT TO OR REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION AND QUALIFICATION REQUIREMENTS OF SAID ACT AND SUCH LAWS.  SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS REGISTERED AND QUALIFIED UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR UNLESS SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.  ANY TRANSFER OF SUCH SECURITIES IS SUBJECT TO OTHER RESTRICTIONS, TERMS AND CONDITIONS SET FORTH HEREIN.

TABLE OF CONTENTS

SCHEDULES

INDEX OF DEFINED TERMS

9

LIMITED LIABILITY COMPANY AGREEMENT

This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of S&P/Dow ▇▇▇▇▇ Indices LLC, a Delaware limited liability company (the “Company”), is made as of June 29, 2012 by and among the Members (including as of the date hereof Standard & Poor’s Financial Services, LLC, a Delaware limited liability company (the “Initial MH Member”), CME Group Index Services LLC, a Delaware limited liability company (“CGIS”) and CBOT Strategic Investments LLC, a Delaware limited liability company (“CBOT Investments”), and together with CGIS, the “Initial CME Group Members”), The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a New York corporation (“MH”), CME Group Inc., a Delaware corporation (“CME Group”), and the Company.

RECITALS

WHEREAS, the Company was formed on June 28, 2012, by the filing of a Certificate of Formation (as amended from time to time, the “Certificate of Formation”) with the Secretary of State of the State of Delaware;

WHEREAS, pursuant to a Contribution Agreement, dated as of November 4, 2011, by and among MH, CME Group and CGIS, as amended by that certain Amendment, dated as of the date hereof (as amended, the “Contribution Agreement”), MH, CME Group and CGIS agreed to contribute, or cause their Affiliates to contribute, to the Company at the Closing certain assets and liabilities in exchange for Membership Interests;

WHEREAS, pursuant to a Joinder Agreement, dated as of the date hereof, by and among the Company, MH, CME Group and CGIS, the Company became a party to the Contribution Agreement; and

WHEREAS, this Agreement and the Transaction Documents are being entered into at the Closing pursuant to the Contribution Agreement.

NOW, THEREFORE, in connection with the mutual covenants and agreements herein made and other good and valuable consideration, the Members hereby agree as follows:

Article 1

DEFINITIONS

Section 1.1 Defined Terms.  In this Agreement, except where the context otherwise requires:

“Acquirer” shall mean (a) in the case of a transaction described in clause (a) of the definition of “Change of Control”, the ultimate parent of the counterparty to such transaction and (b) in the case of a transaction described in clause (b) of the definition of “Change of Control”, the Person (or any member of the group of related Persons) that acquires

beneficial ownership (as defined under Section 13(d) of the Exchange Act) of equity interests of such Parent representing a majority of such Parent’s voting power in such transaction.

“Act” shall mean the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et  seq., as amended.

“Adjusted Capital Account Deficit” shall mean, with respect to each Member, the deficit balance, if any, in such Member’s Capital Account, after giving effect to the following adjustments:  (a) debit to such Capital Account the adjustments, allocations and distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6); and (b) credit to such Capital Account (i) any amounts which such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704‑2(i)(5) and (ii) any amounts such Member is obligated to restore pursuant to any provision of this Agreement or by applicable Law.  The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704‑1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such first Person; provided  that the term “Affiliate” does not include:  (a) any Company Entity when used with respect to any CME Group Entity or any MH Entity and (b) any CME Group Entity or any MH Entity when used with respect to any Company Entity.  “Affiliated” shall have a correlative meaning.  For the avoidance of doubt, as of the date hereof, CGIS is an Affiliate of CME Group.

“Affiliated Persons” shall mean, with respect to any Person, any other Person, including a corporation, joint venture, a general or limited partnership or a limited liability company (but excluding an individual), that, directly or indirectly through one or more subsidiaries, at the time owns at least 25% (or 30% in the case of a Person organized under the laws of a jurisdiction outside of the United States) of the ownership interests entitled to vote in the election of directors, managing partners, managers or trustees of such first Person (or other Persons performing such functions).

“Annual Budget” shall mean, with respect to any Fiscal Year, the annual budget for the operations of the Company Entities in such Fiscal Year (a) as set forth on Schedule 6.4(a) for the remainder of the 2012 Fiscal Year, (b) with respect to the 2013 Fiscal Year, approved by CME Group and MH in accordance with Section 6.4(b) and (c) as prepared in accordance with Section 6.4(a) for each subsequent Fiscal Year and approved by the Board of Directors in accordance with Article 5. 

“Appraiser” shall mean an investment bank or financial advisory firm of national standing and with experience in the valuation of businesses similar to those of the Company. 

“Baseline Margin” shall mean (a) for the first Fiscal Year that begins after the Closing and the four Fiscal Years thereafter, the Initial Baseline Margin; (b) for the sixth Fiscal Year that begins after the Closing, the average of the actual Margins in the third, fourth and fifth Fiscal Years beginning after the Closing (the “Reset Baseline Margin”); and (c) for the seventh Fiscal Year that begins after the Closing and each Fiscal Year thereafter, the lesser of (i) the Reset Baseline Margin and (ii) the average of the actual Margins for the three Fiscal Years immediately preceding such Fiscal Year.

“Blackout Period” shall mean the period beginning on the date hereof and ending on December 31, 2017.

“Brand Management Plan” shall mean the plan that sets forth the proposed development and management of the branding and promotion of a favorable brand image and brand recognition of the Company as set forth on Schedule 6.4(b) and thereafter amended by the Board of Directors in accordance with Article 5. 

“Business Day” shall mean a day ending at 11:59 p.m. (Eastern Time), other than a Saturday, a Sunday or any other day on which commercial banks in New York, New York are authorized or obligated by Law to close.

“Business or Purpose of the Company” shall mean the development, maintenance, calculation or publication of Indices, the licensing of such Indices and the sale of subscriptions to data products based on such Indices.

“Capital Contributions” shall mean, with respect to any Member, the total amount of cash and the gross fair market value of any property (other than cash) contributed to the Company by such Member pursuant to Section 3.1, Section 3.2 or otherwise (net of any liabilities that are secured by such property that the Company is considered to assume or take subject to under Section 752 of the Code), which Capital Contribution shall be reflected on Schedule 4.1 hereto as amended from time to time in accordance with the terms of this Agreement.  Any reference in this Agreement to the Capital Contribution of a Member shall include a Capital Contribution of its predecessors in interest.

“Carrying Value” shall mean, with respect to any asset of the Company, such asset’s adjusted basis for federal income tax purposes, except as follows:  (a) the Carrying Value of all assets of the Company shall be adjusted to equal their respective gross fair market values, in accordance with the rules set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(f), immediately prior to:  (i) the acquisition of any additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company of more than a de minimis amount of assets to a Member as consideration for an interest in the Company; (iii) the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a Member capacity or by a new Member acting in a Member capacity or in anticipation of becoming a Member; and (iv) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g); provided  that adjustments pursuant to clause (i), (ii)  or (iii)  above shall be made unless the Board of Directors determines that such adjustments are not necessary or appropriate to reflect the relative economic interests of the Members; (b) the Carrying Value of any asset of the Company distributed to any Member shall be adjusted immediately prior to such distribution to equal its gross fair market value; (c) the Carrying Value of any asset contributed by any Member shall be its gross fair market value as of the date of such contribution; (d) the Carrying Value of any assets of the Company shall be increased or decreased, as the case may be, to reflect any adjustments to the adjusted basis of such assets for federal income tax purposes pursuant to Section 734(b) or Section 743(b) of the Code, but only to the extent such adjustments are taken into account in determining Capital Account balances pursuant to Treasury Regulations Section 1.704‑
1(b)(2)(iv)(m); provided  that the Carrying Value shall not be adjusted pursuant to this clause (d) to the extent an adjustment pursuant to clause (a) above is made in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (d); and (e) in the case of any asset of the Company that has a Carrying Value that differs from its adjusted tax basis, such Carrying Value shall be adjusted by the amount of Depreciation taken into account with respect to such asset for purposes of computing “Profits” and “Losses”.

“Change of Control” of a Parent shall mean:

            (a)        any merger, consolidation or similar business combination of such Parent into or with another Person as a result of which holders of the voting securities of such Parent immediately prior to the consummation of the transaction hold, directly or indirectly, immediately following the consummation of the transaction, equity interests in the surviving entity in such transaction or its ultimate parent possessing less than a majority of the voting power of such surviving entity or ultimate parent; or

            (b)        any other transaction (other than a merger, consolidation or similar business combination, which is addressed by clause (a)), including the sale by such Parent of new equity interests or a transfer of existing equity interests of such Parent, the result of which is that any other Person or group of related Persons, directly or indirectly, acquires (i) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of equity interests of such Parent representing a majority of such Parent’s voting power or (ii) a majority of the assets of such Parent.

“Closing” shall have the meaning set forth in the Contribution Agreement.

“CME Group Contributed Assets” shall have the meaning set forth in the Contribution Agreement (excluding any CME Group Contributed Asset that has not as of the relevant time yet been contributed, conveyed, assigned, transferred or delivered to the Company, as contemplated by Section 2.05 of the Contribution Agreement).

“CME Group Entities” shall mean CME Group and its controlled Affiliates.

“CME Group Member” shall mean, as of the Closing, the Initial CME Group Members, and, thereafter, any CME Group Permitted Transferee so long as it remains a Member.  For the avoidance of doubt, all references to the CME Group Members shall be deemed to be references to the Initial CME Group Members until such time as an Initial CME Group Member transfers its Membership Interest (or any portion thereof) to a CME Group Permitted Transferee.

“CME Group Threshold” shall mean 10%, subject to adjustment pursuant to the next sentence.  If after the date of this Agreement, additional Membership Interests are issued to a Member or an Additional Member in accordance with the terms of this Agreement, the CME Group Threshold shall be proportionally reduced immediately prior to such new issuance to give effect to such new issuance.

“CME Group Unaffiliated Entity” shall mean any Person (a) who is a Predominantly Non-Competing Business, (b) who engages in a Competing Business primarily outside of the United States and (c) (i) in which any CME Group Entity has acquired prior to the date of this Agreement an equity interest, which such Persons are identified on Schedule 1.1(a), or (ii) in which any CME Group Entity hereafter acquires an equity interest in such Person in the ordinary course of business consistent with CME Group’s past practice for such investments, provided that no Person shall be a CME Group Unaffiliated Entity if such Person is a Subsidiary of CME Group.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Company Entities” shall mean the Company and its controlled Affiliates.

“Company Minimum Gain” shall have the same meaning as the term “partnership minimum gain” in Treasury Regulations Sections 1.704-2(b)(2) and 1.704-2(d).  A Member’s share of Company Minimum Gain shall be computed in accordance with the provisions of Treasury Regulations Section 1.704-2(g).

“Competing Business” shall mean the development, maintenance, calculation or publication of Indices, the licensing of such Indices or the sale of subscriptions to data products based on such Indices; provided  that “Competing Business” shall exclude (a) ordinary course of business commercial arrangements with third parties engaged in a Competing Business, including in-bound licensing agreements, licensing agent arrangements and distribution agreements, (b) with respect to CME Group and the other CME Group Entities, (i) the market data business of the CME Group Entities or (ii) any such activities with respect to Indices branded with a CME Group Entity brand (whether now or in the future) that include proprietary data of the CME Group Entities and (c) with respect to MH and the other MH Entities, any such activities with respect to Indices that (i) (A) are comprised entirely of Reference Assets that are commodities and (B) are branded with the Platts name or the name of any business forming part of the Platts business (whether now or in the future), such as “Bentek” or “Steel Business Briefing,” or (ii) (A) are comprised entirely of Reference Assets that (1) are not equity securities and (2) trade in, on or through the facilities of a securities market in India and (B) are branded with the Crisil name or the name of any business forming part of the Crisil business (whether now or in the future).

“Competitor Transaction” shall mean (a) with respect to CME Group, a Change of Control of CME Group in which the Acquirer is a MH Competitor, (b) with respect to MH, a Change of Control of MH in which the Acquirer is a CME Group Competitor and (c) with respect to either Parent or any of its other Parent Entities, any transaction by such Person that would be prohibited by Section 11.1(a) but for the exceptions set forth in Section 11.1(b)(ii). 

“Contribution Date” shall mean, with respect to any CME Group Contributed Asset or MH Contributed Asset, the date on which such asset is contributed, conveyed, assigned, transferred or delivered to the Company.

“control” or “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“CPI” shall mean the Consumer Price Index for all Urban Consumers (1982-84 = 100) published by the Bureau of Labor Statistics of the United States Department of Labor (or its successor equivalent index), it being agreed that if the CPI ceases to be published and there shall be no successor index thereto, a comparable index that is published by a governmental institution or a nationally recognized publisher of statistical information shall be reasonably designated by the Board of Directors.

“Crisil” shall mean CRISIL Limited and its Subsidiaries.

“Depreciation” shall mean, for each Fiscal Year, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for federal income tax purposes for such Fiscal Year, except that, with respect to any asset the Carrying Value of which differs from its adjusted tax basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which bears the same ratio to such beginning Carrying Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis;
provided, however, that if the adjusted tax basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Carrying Value using any reasonable method selected by the Tax Matters Member; provided, further, however, that with respect to any asset (or portion thereof), if any, as to which the difference between its Carrying Value and its adjusted tax basis for federal income tax purposes at the beginning of such Fiscal Year is being eliminated by use of the “remedial allocation method” described in Treasury Regulations Section 1.704-3(d), Depreciation for such Fiscal Year shall be computed in accordance with the rules prescribed by Treasury Regulations Section 1.704-3(d)(2).

“EBITDA” means the Company’s consolidated earnings before interest, income taxes, depreciation and amortization with each component thereof determined in accordance with GAAP.

“Editorial Processes” means processes used by journalists, editors or reporters (and analysts who support any of them) to determine the market values and other factors in relation to Reference Assets, which processes are based, in whole or in part, on qualitative factors and/or are subjectively determined, it being understood that Editorial Processes may be applied based on a pre-determined methodology.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Financial Products” shall mean financial products based on one or more Indices, whether bought, sold or traded on an exchange, over-the-counter or otherwise, including mutual funds and other collective investment vehicles (such as Unit Investment Trusts and undertakings for the collective investment of transferable securities), separately managed accounts, exchange-traded funds, exchange-traded notes, exchange-traded commodities, exchange-traded derivatives (including futures and options), actively managed portfolios, structured products (including over-the-counter options and swaps, privately placed debt obligations, publicly offered debt obligations, indexed warrants, index participation certificates, certificates of deposit and insurance products), contracts for difference, and other investment vehicles and products in the financial services industry now or in the future.

“Fiscal Quarter” shall mean any three-month period beginning on (a) the first day of a Fiscal Year or (b) the day that is three, six or nine months thereafter. 

            “FMV” shall mean the price at which a willing purchaser would purchase, and a willing seller would sell, the Company Entities, taken as a whole (including any cash or cash equivalents held by the Company Entities, but net of any Indebtedness), as a going concern as of the date of determination, based on standard valuation techniques, including discounted cash flows, valuation of comparable companies analysis and comparable transactions and, for the avoidance of doubt, (a) taking into account the expected amount of distributions to be made to the Members prior to consummation of the MH Special Call, CME Group Regular Put or CME Group Special Put (b) without regard to (i) any compulsion to sell, (ii) the impact of immediate sale or (iii) the presence or absence of a market or any minority discount and (c) assuming, for purposes of determining such price only, the continuation of the MH Corporate Services SLA and the CME Group Corporate Services SLA (each as defined in the Contribution Agreement) and without regard to any discount as a result of the fact that the Company does not own the trademarks used by the Company. 

“Free Cash Flow” shall mean, with respect to any Fiscal Quarter, EBITDA in such Fiscal Quarter; provided  that Free Cash Flow shall be:

(a)                reduced by the amount of accruals established (and increased by the amount of excess accruals reversed) in such Fiscal Quarter related to transaction and integration costs from acquisitions, extraordinary items, and any other one-time, unusual or infrequent nonrecurring items publicly disclosed by MH or as mutually agreed between the Parents;

(b)               reduced by the amount of interest and income tax payments made and related accruals established (and increased by the amount of excess accruals related thereto reversed) in such Fiscal Quarter;

(c)                reduced by the amount of legal dispute and settlement reserves established (and increased by the amount of excess accruals reversed) in such Fiscal Quarter;

(d)               reduced by the amount of restricted cash established (and increased by the amount of restricted cash reversed) in such Fiscal Quarter related to amounts required to comply with applicable Law or any agreement or other obligation to which any of the Company Entities is a party;

(e)                reduced by the amount of any increase (or increased by the amount of any decrease) in Net Working Capital as of the end of such Fiscal Quarter relative to the end of the prior Fiscal Quarter, exclusive and without duplication of the subsequent period’s impact of Net Working Capital changes when amounts are paid from the items identified in clauses (a), (b), (c)  and (d) above; 

(f)                reduced by the amount of capital expenditures in such Fiscal Quarter;

(g)               reduced by the amount of cash required to finance acquisitions in such Fiscal Quarter; and

(h)               increased by the amount of non-cash impairment and stock-based compensation charges in such Fiscal Quarter.

For purposes of this definition, “established” means as reported in the financial statement of the Company Entities for the applicable period in accordance with GAAP.

“GAAP” shall mean U.S. generally accepted accounting principles as consistently applied by MH.

“Governmental Authority” shall mean any court, administrative agency, department, body, commission or other governmental authority, body or instrumentality, federal, state, local, domestic or foreign governmental or regulatory authority, and any self-regulatory organization (including the Financial Industry Regulatory Authority and any national securities exchange).

“Illiquid Non-Cash Consideration” shall mean any consideration other than cash or securities listed on a national securities exchange.

“Indebtedness” of any Person shall mean (without duplication) (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person which are evidenced by notes, bonds, debentures or similar instruments, (c) all obligations of such Person that have been, or should be, in accordance with GAAP, recorded as capital leases, (d) all obligations of such Person that have been, or should be, in accordance with GAAP, recorded as a sale-leaseback transaction or a leveraged lease, (e) all obligations of such Person in respect of letters of credit or acceptances issued or created for the account of such Person, (f) all liabilities for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business) and (g) all direct or indirect guarantees (including “keep well” arrangements, support agreements and similar agreements) with respect to Indebtedness of any other Person.

“Index” shall mean a statistical composite that measures the financial value, and/or changes in the financial value over time, of a portfolio of multiple Reference Assets (whether of one asset class or multiple asset classes) or one or more Reference Assets at multiple points of time based upon the respective weighting of the components within such composite; provided  that, unless otherwise agreed by the Members, “Index” shall not include (a) any referential prices or series of referential prices of an information provider (such as Platts) that are derived through Editorial Processes, (b) any benchmark, evaluative pricing (including valuations of the kind produced by Standard & Poor’s Securities Evaluations) or other similar data on Reference Assets other than equities (i) that are published by a business other than a business of a Company Entity and (ii) where the data is used for editorial, analytical or expository purposes and not as the basis for a Financial Product and (c) any settlement or indicative values of an exchange, clearinghouse or similar market participant (such as CME Group), and any process undertaken by such Person or its Affiliates to determine such settlement or indicative values, of any product listed, traded or cleared by such Person or its Affiliates.  “Indices” shall have correlative meaning.

“Initial Baseline Margin” shall have the meaning set forth on Schedule 1.1(c).   

“Intellectual Property” shall mean all right, title and interest in or relating to intellectual property, whether protected, created or arising under the laws of the United States or any other jurisdiction, including:  (a) all patents and applications therefor, including all continuations, divisionals and continuations-in-part thereof and patents issuing thereon, along with all reissues, reexaminations and extensions thereof; (b) all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, corporate names, trade styles, logos and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals and extensions thereof; (c) all Internet domain names; (d) all copyrights and all mask work, database, moral and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith, along with all reversions, extensions and renewals thereof; (e) trade secrets; (f) all other intellectual property rights arising from or relating to technology; and (g) all rights relating to or under the foregoing granted under any contracts.

“IRS” shall mean the United States Internal Revenue Service.

“Law” shall mean any law (including common law), constitution, treaty, statute, code, rule, regulation, ordinance or other pronouncement of a Governmental Authority having a similar effect and any Order.

“Lower Threshold” shall mean, with respect to either Parent, 5%, subject to adjustment pursuant to the next sentence.  If after the date of this Agreement, additional Membership Interests are issued to a Member or an Additional Member in accordance with the terms of this Agreement, the Lower Threshold shall be proportionally reduced immediately prior to such new issuance to give effect to such new issuance.

“Margin” shall mean, for any 12-month period, a percentage equal to (a) (i) the excess of revenue over (ii) ordinary recurring operating expenses, excluding interest, income taxes, depreciation, and amortization divided by (b) revenue of the Company in such period, in each case determined in accordance with GAAP; for the avoidance of doubt, “ordinary recurring operating expenses” shall exclude the initial impact from transaction and integration costs from acquisitions, extraordinary items, impairment charges and any other one-time, unusual or infrequent non-recurring items publicly disclosed by MH or as mutually agreed between the Parents.

“Margin Floor” shall mean the Original Margin Floor; provided  that (a) if (i) Board Supermajority Approval of the proposed Annual Budget for any Subject Fiscal Year is required pursuant to Section 5.3(f)(i), (ii) at least one Director appointed by CME Group votes in favor of approval of the proposed Annual Budget for such Subject Fiscal Year and (iii) the Margin for such Subject Fiscal Year projected in such Annual Budget is below the Margin Floor for such Subject Fiscal Year, then the Margin Floor shall automatically reset to such lower level reflected in such Annual Budget; and (b) if the Margin Floor is reduced pursuant to clause (a), the Margin Floor for any Fiscal Year thereafter shall automatically increase to the average of the actual Margins for the three Fiscal Years immediately preceding such Fiscal Year if such average is higher than the Margin Floor then in effect; provided, further, that (A) the Margin Floor shall at all times remain subject to reduction pursuant to clause (a) and (B) in no event shall the Margin Floor ever be increased above the Original Margin Floor.

“Member” shall mean, at any time, (a) for so long as it holds a Membership Interest, each Initial CME Group Member and the Initial MH Member, as applicable, and (b) any other Person who, at such time, has been admitted to the Company as a member in accordance with the terms of this Agreement.  No Person that is not a Member shall be deemed a “member” under the Act, it being understood that status as a Parent shall not in and of itself constitute status as a Member (although a Parent may be a Member).

“Member Minimum Gain” shall mean an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a nonrecourse liability (as defined in Treasury Regulations Section 1.752-1(a)(2)), determined in accordance with Treasury Regulations Section 1.704‑2(i)(3).

“Member Nonrecourse Debt” shall have the same meaning as the term “partner nonrecourse debt” in Treasury Regulations Section 1.704-2(b)(4).

“Member Nonrecourse Deductions” shall have the same meaning as the term “partner nonrecourse deductions” set forth in Treasury Regulations Section 1.704-2(i)(2).

“Membership Interest” shall mean, subject to Section 10.3(a), the limited liability company interest of a Member in the Company and the right of such Member to any and all of the benefits to which such Member may be entitled as provided in this Agreement and in the Act, together with the obligations of such Member to comply with all the provisions of this Agreement and of the Act.

“MH Contributed Assets” shall have the meaning set forth in the Contribution Agreement (excluding any MH Contributed Asset that has not as of the relevant time yet been contributed, conveyed, assigned, transferred or delivered to the Company, as contemplated by Section 2.05 of the Contribution Agreement).

“MH Entities” shall mean MH and its controlled Affiliates.

“MH Member” shall mean, as of the Closing, the Initial MH Member, and, thereafter, any MH Permitted Transferee so long as it remains a Member.  For the avoidance of doubt, all references to the MH Members shall be deemed to be references to the Initial MH Member until such time as the Initial MH Member transfers its Membership Interest (or any portion thereof) to a MH Permitted Transferee.

“Net Working Capital” shall mean, with respect to any Fiscal Quarter, the excess or deficit (in which case it shall be expressed as a negative number), if any, as the case may be, as of the end of such Fiscal Quarter of (a) all current assets of the Company (excluding cash and assets with respect to income taxes (whether current or deferred) other than entity-level tax refunds, credits or other assets (for the absence of doubt, other than any deferred tax assets) to which any of the Company Entities is entitled) over (b) all current liabilities of the Company (excluding any liabilities with respect to income taxes (whether current or deferred) other than entity-level tax liabilities (for the absence of doubt, other than any deferred tax liabilities) imposed on any of the Company Entities, but including long-term unearned revenue), in each case, calculated in accordance with GAAP.

“Nonrecourse Deductions” shall have the meaning set forth in Treasury Regulations Sections 1.704-2(b) and 1.704-2(c).

“Order” shall mean any order, writ, judgment, stipulation, decree, injunction, award or decision of, or consent agreement or similar arrangement with, any Governmental Authority.

“Original Margin Floor” shall have the meaning set forth on Schedule 1.1(d). 

“Parent” shall mean MH or CME Group.

“Parent Aggregate Percentage Interest” shall mean, with respect to CME Group at any time, the sum of the Percentage Interests of the CME Group Members at such time, and with respect to MH at any time, the sum of the Percentage Interests of the MH Members at such time. Each Parent’s Parent Aggregate Percentage Interest shall be set forth opposite such Parent’s name on Schedule 4.1. 

“Parent Entities” shall mean, with respect to CME Group at any time, the CME Group Entities, and with respect to MH at any time, the MH Entities.

“Parent Member Group” shall mean, with respect to CME Group at any time, CME Group and all of CME Group Members at such time, and with respect to MH at any time, MH and the MH Members at such time.

“Percentage Interest” shall mean, with respect to a Member at any time, the percentage set forth opposite such Member’s name on Schedule 4.1 at such time (such percentage being understood to be reflective of the economic interest in the Company represented by such Member’s Membership Interest, including an interest in certain distributions, allocations of Profits and Losses, and items of income, gain, loss, deduction and credit of the Company).  In the event of any capital contribution to the Company (other than the Initial Capital Contributions), whether by an existing Member or an Additional Member, any redemption of a Membership Interest (or portion thereof), or any Transfer of a Membership Interest (or portion thereof), in each case in accordance with the terms of this Agreement, the Percentage Interests on Schedule 4.1 shall be appropriately revised to reflect such capital contribution, redemption or Transfer.  Except in the case of such a capital contribution, redemption or Transfer, no adjustment shall be made to the Percentage Interest of any Member.

“Permitted Predominantly Non-Competing Acquisition” shall mean the direct or indirect acquisition by a Parent or any of its other Parent Entities of any interests in a Predominantly Non-Competing Business.

“Person” shall mean an individual, corporation, partnership, limited liability company, trust, joint venture, association, unincorporated organization, Governmental Authority or other entity.

“Platts” shall mean the Platts commodities information division of MH and any successor in interest thereto.

“Predominantly Non-Competing Business” shall mean a Target that, directly or indirectly, engages in, manages, operates, advises or otherwise participates in a Competing Business, so long as less than 50% of each of the annual consolidated revenues and net income of such Target are generated by its Competing Business (determined as of its most recently completed fiscal year prior to the date of determination of whether such Target is a Predominantly Non-Competing Business). 

“Preliminary Annual Budget” shall mean, with respect to any Fiscal Year, the preliminary annual budget for the operations of the Company in such Fiscal year as prepared in accordance with Section 6.4(a) and approved by the Board of Directors in accordance with Article 5. 

“Proceeding” shall mean any action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal.

“Profits” and “Losses” shall mean, for each Fiscal Year or other applicable taxable period, an amount equal to the taxable income or loss of the Company for such Fiscal Year or other applicable taxable period, determined in accordance with Section 703(a) of the Code (including, for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code) and with the accounting methods used by the Company for federal income tax purposes, with the following adjustments:

            (a)        any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss;

            (b)        any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i) (other than expenses in respect of which an election is properly made under Section 709 of the Code), and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss;

            (c)        if the Carrying Value of any asset of the Company differs from its adjusted tax basis for federal income tax purposes, any gain or loss resulting from a disposition of such asset (which gain or loss is recognized for federal income tax purposes) shall be calculated by reference to the Carrying Value of the asset disposed of;

            (d)       in the event the Carrying Value of any asset of the Company is adjusted pursuant to clause (a) or (b)  of the definition of “Carrying Value,” the amount of the adjustment shall be included as gain or loss in computing such taxable income or loss;

            (e)        in lieu of depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other applicable taxable period, computed in accordance with the definition of “Depreciation”;

            (f)        to the extent an adjustment to the adjusted tax basis of any asset of the Company pursuant to Section 734(b) of the Code is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s Membership Interest, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and

            (g)        anything to the contrary in the above provisions of this definition of “Profits” and “Losses” notwithstanding, any items of income, gain, loss or deduction that are specially allocated pursuant to Section 7.2 shall not be taken into account in computing Profits or Losses. 

“Prohibited Transferee” shall mean, with respect to any Parent Member Group, the single Person (who may not be an individual) listed as a Prohibited Transferee with respect to such Parent Member Group on Schedule 9.1(i), it being agreed that each Parent may change the Prohibited Transferee with respect to the other Parent Member Group once in January 2016 and each third January thereafter; provided  that (x) if a Person becomes an Affiliated Person of a Prohibited Transferee at any time other than January 2016 or any third January thereafter, the Parent that designated such Prohibited Transferee may (subject to clause (y)) change such Prohibited Transferee to such Affiliated Person within 30 days of such Affiliated Person becoming such and (y) if an agreement has been entered into with a Third-Party Acquirer pursuant to Section 9.1(c)(ii), any change in the Prohibited Transferee to such Person shall not be effective during the pendency of such agreement.

“Public Company” shall mean a Person that (a) has a class of equity securities registered under Section 12 of the Exchange Act, (b) is required to file reports under Section 15(d) of the Exchange Act as a result of the effectiveness of a registration statement under the Securities Act with respect to equity securities of such Person or (c) is a Person organized under the laws of a jurisdiction outside of the United States that has a class of equity securities listed for trading on a stock exchange outside of the United States.

“Qualified IPO” shall mean a broadly placed initial public underwritten (firm commitment) offering of equity securities of the Company (which may be converted into a corporation for such purpose, as provided in Section 10.2), or of a corporation formed at the direction of the Board of Directors for the sole purpose of owning all the limited liability company interests in or assets of the Company; provided  that (a) subject to Section 10.3, no newly issued Membership Interests shall be sold in such Qualified IPO, (b) Membership Interests (or portions thereof) with associated Percentage Interests of not less than 10% in the aggregate are sold in the Qualified IPO, (c) MH shall continue to have, upon consummation of such public offering, a Parent Aggregate Percentage Interest of at least 50.1%, (d) the Membership Interests sold in the Qualified IPO are approved for listing on the New York Stock Exchange or Nasdaq (under either such exchange’s highest then applicable listing standards) and (e) the equity capitalization of the Company (or any successor corporation as provided in Section 10.2 or Section 10.3), based on the per share price of the shares sold in the Qualified IPO is not less than the amount set forth on Schedule 1.1(e).  

“Qualified Party” shall mean a Person that has not, within the five years prior to the applicable Change in Control of CME Group, initiated efforts or participated in material efforts to eliminate or significantly limit recognized Intellectual Property rights in Indices or Financial Products based thereon, including filing a lawsuit seeking a ruling that a license is not required for offering, listing, trading, settling or clearing a product that is already licensed by an index provider.  A Person’s participating in a lawsuit as a third party or participating in an industry conference or a regulatory hearing or proceeding shall not in and of itself be dispositive with regard to such Person’s ability to be a Qualified Party.

“Reference Assets” shall mean any assets, liabilities, incomes, expenses or measurements on which products can be based that provide financial exposure to the owner or holder of such products.

“Required Qualifications” shall mean the applicable qualifications set forth on Schedule 5.8(e)(i). 

“Reset Baseline Margin” shall have the meaning set forth in the definition of “Baseline Margin”.

“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Specified Buy-Out Notice” shall mean (a) a CME Group Special Put Notice delivered following a Change of Control of MH in which the Acquirer is a CME Group Competitor, (b) a CME Group Regular Put Notice covering all of the CME Group Members’ Membership Interests or (c) a MH Special Call Notice.

“Specified Independent Appraiser” shall mean an investment bank or financial advisory firm of national standing and with experience in the valuation of assets similar to the applicable Illiquid Non-Cash Consideration who is not affiliated with, and who has not provided any significant services within the two years preceding the date of its engagement to, any Parent Entity.

“Strategic Plan” shall mean the long-term strategic plan of the Company as set forth on Schedule 6.4(c) and thereafter amended by the Board of Directors in accordance with Article 5. 

“Subsequent Expansion” shall mean, with respect to any Competing Business, any expansion of such Competing Business through (a) material acquisitions (other than acquisitions permitted pursuant to Article 11), (b) development of new Indices derived substantially from the value of new asset classes, (c) commencing a new line of business involving the licensing of exchanges, issuers or sponsors or (d) development of new Indices based on Reference Assets from a new geographic region.

“Subsidiary” shall mean, with respect to any Person, (a) any other Person, including a corporation, joint venture, a general or limited partnership or a limited liability company, in which such first Person, directly or indirectly through one or more subsidiaries, at the time owns at least 50% of the ownership interests entitled to vote in the election of directors, managing partners, managers or trustees thereof (or other Persons performing such functions) or (b) such first Person acts as the general partner, managing member, trustee (or Persons performing similar functions) of such other Person; provided  that no Company Entity shall be deemed to be a Subsidiary of any MH Entity or CME Group Entity.  For the avoidance of doubt, as of the date hereof, CGIS is a Subsidiary of CME Group.

“Transaction Documents” shall mean the documents listed on Schedule 1.1 hereto. 

“Transfer” shall mean, directly or indirectly, to sell, transfer, assign, charge, mortgage, hypothecate, pledge, encumber, grant a security interest in, grant any right or option or create any convertible, exchangeable or derivative security with respect to, or otherwise dispose of (whether by operation of law or otherwise) any direct or indirect economic, voting or other rights in or to any Membership Interest (or any portion thereof), including by means of a disposition of any equity interests in a Member or in a Person that directly or indirectly holds any equity interests in a Member; provided  that (a) a transfer of any equity interest in a Person that directly or indirectly holds any equity interests in a Member to any other Person that is a direct or indirect wholly owned Subsidiary of a Parent shall not be deemed to be a Transfer of any Membership Interest and (b) so long as a Parent is a Public Company, none of an issuance (including from treasury or from a Subsidiary), disposition (including a Change of Control), redemption or repurchase of any equity securities in such Parent shall be deemed to be a Transfer of any Membership Interest (or portion thereof).  “Transferred” and “Transferring” shall have correlative meanings.

“Treasury Regulations” shall mean the U.S. Treasury regulations promulgated under the Code, as such regulations may be amended from time to time.

“Whole Board” shall mean, at any time, the total number of Directors (including any vacant seats) comprising the Board of Directors at such time.

Article 2

ORGANIZATIONAL MATTERS AND GENERAL PROVISIONS

          Section 2.1 Formation. (a) The Members hereby acknowledge the formation of the Company as a limited liability company under and pursuant to the Act pursuant to the Certificate of Formation.  The designation of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as an “authorized person” within the meaning of the Act for the purposes of executing, delivering and filing the Certificate of Formation with the Secretary of State of the State of Delaware is hereby approved and ratified in all respects.  Upon the filing of the Certificate of Formation, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇’▇ powers as an “authorized person” ceased.

(b)               The Company shall initially have one class of interests, consisting of the Membership Interests, which shall have equal rights and preferences in the assets of the Company except as otherwise provided herein.  A Membership Interest shall for all purposes be personal property.  All Membership Interests are securities governed by Article 8 of the Uniform Commercial Code, as provided in Section 8-103(c) of the Uniform Commercial Code, as in effect from time to time in the State of Delaware.

(c)                Upon the Closing and the execution and delivery of this Agreement or a counterpart to this Agreement, each of the Initial MH Member and the Initial CME Group Members shall be admitted as a Member of the Company having a Membership Interest with the associated Percentage Interest set forth opposite such Member’s name on Schedule 4.1 hereto, with effect as of the date hereof.

(d)               The Members intend for the contributions by the Initial MH Member and the Initial CME Group Members to the Company of cash and other assets and liabilities as specified in the Contribution Agreement (including any post-Closing adjustments pursuant to Section 2.10 and Section 2.11 of the Contribution Agreement that are treated as a contribution to the Company), and the admission of the Initial MH Member and the Initial CME Group Members as Members on the date hereof, to be treated for federal income tax purposes as a contribution of such cash and other assets and liabilities to the Company by the Initial MH Member and the Initial CME Group Members in a transaction described in Section 721 of the Code.

Section 2.2 Name. The name of the Company as of the date hereof is “S&P/Dow ▇▇▇▇▇ Indices LLC” and its business shall be carried on in this name with such variations and changes or in such other trade names as the Board of Directors determines, subject to Section 5.3(f)(ii), to be necessary or appropriate.  Subject to Section 5.3(f)(ii), the Board of Directors shall have the power at any time to change the name of the Company.

           Section 2.3  Principal Place of Business. The principal place of business of the Company shall be at such location as the Board of Directors may determine from time to time.  The Company may also maintain such other office or offices at such other location or locations as the Board of Directors may determine from time to time.

           Section 2.4  Registered Agent. The Company’s registered agent and office in Delaware shall be Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.  At any time, the Board of Directors may designate another registered agent and/or registered office.

▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.  At any time, the Board of Directors may designate another registered
agent and/or registered office.

Section 2.5  Purpose and Powers of the Company.  (a)  The Company may carry on any lawful business, purpose or activity and shall, and shall cause the Company Entities to, carry on the Business or Purpose of the Company.  The Company shall possess and may exercise all the powers and privileges granted by the Act or by any other Law or by this Agreement, together with any powers incidental thereto, including such powers and privileges as are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the Company.

(b)               The Company shall do all things necessary to maintain its limited liability company existence separate and apart from each Member and any Affiliate of any Member, including holding regular meetings of the Board of Directors in accordance with Section 5.3(a) and maintaining its books and records on a current basis separate from that of any Affiliate of the Company or any other Person.

Section 2.6 Term.  The term of the Company commenced on the date that the Certificate of Formation was filed in the office of the Secretary of State of the State of Delaware and shall continue in full force and effect in perpetuity; provided  that the Company may be dissolved in accordance with the provisions of Article 13. 

Section 2.7  Company Property.  All property of the Company, both tangible and intangible, shall be deemed to be owned by the Company as an entity.  A Member has no interest in specific Company property.

Section 2.8 Certification of Membership Interests.  Any Member may request a certificate representing such Member’s Membership Interest, but only if the Board of Directors authorizes the issuance of certificates representing Membership Interests.  To the extent Membership Interest certificates are issued to Members, then each such certificate shall bear such legends as the Board of Directors may determine to be necessary or appropriate to facilitate compliance with this Agreement, the Securities Act and any other securities law, including legends referencing the transfer restrictions imposed by this Agreement and stating that the Membership Interests have not been registered under the Securities Act.  In addition, each Membership Interest certificate, if any, issued to a Member shall be executed by an authorized officer of the Company on behalf of the Company and shall state (a) the Company’s name, (b) the name and address of the holder thereof, (c) the Percentage Interest of such Member, (d) the initial Capital Account balance of such Member with respect to the Membership Interest represented by the certificate, (e) the date of issuance of the certificate and (f) the number (if
any) of the certificate.

Section 2.9 Certain Intellectual Property Matters.  Subject to any other contractual arrangements, the Company Entities will use commercially reasonable efforts to protect the value of any Company Entity’s Intellectual Property consistent with MH’s intellectual property protection past practices and policies with respect to such Intellectual Property as of the date of the Contribution Agreement, including through the initiation of litigation in response to material Intellectual Property challenges, provided, however that the Company shall have final control over any litigation relating to Intellectual Property owned by, or exclusively licensed to, a Company Entity. 

Article 3

CAPITAL CONTRIBUTIONS, CAPITAL ACCOUNTS AND FINANCING

Section 3.1  Initial Capital Contributions.  (a)  In connection with the transactions contemplated by the Contribution Agreement, the Initial CME Group Members and the Initial MH Member have made the following Capital Contributions to the Company (each of which shall constitute an “Initial Capital Contribution”):

                                                     (i)            the contribution by the Initial MH Member of the MH Contributed Assets made at the Closing pursuant to Section 2.02(a) of the Contribution Agreement;

                                                   (ii)            the contribution by CGIS of the CME Group Contributed Assets made at the Closing pursuant to Section 2.03(a) of the Contribution Agreement; and

                                                 (iii)            the contribution by CBOT Investments of an amount equal to the CMA Purchase Price (as defined in the Contribution Agreement) in cash made at the Closing pursuant to Section 2.04(b) of the Contribution Agreement.

(b)               In exchange for their respective Initial Capital Contributions, the Initial CME Group Members and the Initial MH Member have each been issued a Membership Interest with the associated Percentage Interest set forth opposite its name on Schedule 4.1 hereto, and subject to the terms and conditions set forth in this Agreement, each of the Initial CME Group Members and the Initial MH Member has been admitted as a Member and shall be bound by the provisions of this Agreement.  For the avoidance of doubt, the Parent Aggregate Percentage Interests of MH and CME Group immediately after giving effect to the Initial Capital Contributions (notwithstanding any post-Closing adjustments pursuant to Section 2.10 and Section 2.11 of the Contribution Agreement) are 73% and 27%, respectively.  The initial Capital Account balances of the Initial CME Group Members and the Initial MH Member are equal to the amount of their respective Initial Capital Contributions as set forth on Schedule 4.1 hereto.

Section 3.2 Additional Capital Contributions.  (a)  From and after the Closing, no Member shall be required or permitted to make any additional capital contributions to the Company except as provided in this Article 3 and subject to Section 5.3(f).  

(b)               Subject to Section 5.3(f)(ix), Members may from time to time make capital contributions to the Company (each, an “Additional Capital Contribution” and, for the avoidance of doubt, any Initial Capital Contribution shall not be deemed to be an Additional Capital Contribution) at such times and in such amounts of cash or other property as the Board of Directors may determine to offer to or accept from the Members.

Section 3.3  Issuance of Membership Interests.  (a)  No Membership Interests or other equity interests shall be issued in respect of any Additional Capital Contribution until such Additional Capital Contribution is actually made.  All Membership Interests in respect of the (b)               Subject to Section 5.3(f), the Board of Directors may authorize the Company to issue (i) additional Membership Interests and/or create and issue new series, types or classes of equity interests in the Company with such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof as the Board of Directors may determine and authorize, (ii) obligations, evidences of indebtedness or other securities or interest of the Company convertible or exchangeable into Membership Interests or other equity interests in the Company and (iii) warrants, options or other rights to purchase or otherwise acquire Membership Interests or other equity interests in the Company, in each case to any Person in such amounts and on such terms as so approved by the Board of Directors. 

               Section 3.4  No Withdrawal of Capital. (a) No Member shall be entitled to receive any distribution from the Company, except as provided in Section 8.1 or as otherwise provided herein, or to withdraw any part of its Capital Contributions in the Company.  No Member shall have the right to cause the sale of any Company asset except as otherwise provided herein.  No Member shall have any right to receive any salary or draw with respect to its Capital Contributions or amounts in its Capital Account, or for services rendered on behalf of the Company or otherwise in its capacity as a Member, except as otherwise provided herein or in any Transaction Document.

(b)               No Member shall have any liability for the return of the Capital Contributions of any other Member.  No Member shall be required to make up a negative balance in its Capital Account.  No Member shall have priority over any other Member either as to the return of the amount of such Member’s Capital Contributions or, except as otherwise provided in Article 7, as to any allocation of any item of income, gain, loss, deduction or credit of the Company.

Section 3.5   Capital Accounts. (a)        The Company shall establish on its books and records a separate capital account for each Member (a “Capital Account”), which Capital Account shall be maintained for each Member as follows: 

                                                     (i)            to each Member’s Capital Account there shall be credited (i) such Member’s Capital Contributions, if any, made in consideration for the issuance of a Membership Interest to such Member, when and as received by the Company, (ii) the Profits (or items of income or gain) allocated to such Member pursuant to Section 7.1 and any items in the nature of income or gain that are specially allocated to such Member pursuant to Section 7.2, and (iii) the amount of any Company liabilities assumed by such Member as provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(c)(1); and 

                                                   (ii)            to each Member’s Capital Account there shall be debited (i) the aggregate amount of cash distributed by the Company to such Member in respect of such Member’s Membership Interest, (ii) the Losses (or items of loss or deduction) allocated to such Member pursuant to Section 7.1 and any items in the nature of loss or deduction that are specially allocated to such Member pursuant to Section 7.2 hereof, (iii) the Carrying Value of any asset of the Company distributed by the Company to such Member in respect of such Member’s Membership Interest (net of any liabilities that are secured by such property that such Member is considered to assume or take subject to under Section 752 of the Code), and (iv) the amount of any liabilities of such Member assumed by the Company as provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(c)(2). 

(b)               The foregoing provisions and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b)(2)(iv) and shall be interpreted and applied in a manner consistent with such Treasury Regulations.  If any Membership Interest (or portion thereof) is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent such Capital Account is attributable to the transferred Membership Interest (or portion thereof).

Section 3.6  No Interest.  No interest shall be paid on Capital Contributions or on the balance in each Member’s Capital Account.

Section 3.7  No Debt or Equity Funding Obligations.  No party hereto shall be required by this Agreement to lend any of the Company Entities any funds or otherwise provide any financial or credit support to any of the Company Entities. 

Article 4

CERTAIN RIGHTS AND OBLIGATIONS OF MEMBERS

            Section 4.1 Members.  The Members of the Company, and their respective Percentage Interests, Capital Contributions and Capital Account balances, and the Parents and their respective Parent Aggregate Percentage Interests, and the addresses of the parties hereto and other contact information for purposes of Section 14.13, are listed on Schedule 4.1 hereto.  The Company shall amend Schedule 4.1 from time to time promptly following any changes in the Members (including the admission of Additional Members), the Percentage Interests, Capital Contributions or Capital Account balances of the Members, the Parent Aggregate Percentage Interests of the Parents, or addresses or other contact information of the parties hereto for purposes of Section 14.13, in each case in accordance with the terms of this Agreement.  No Person may be a Member without the ownership of a Membership Interest.  Except as otherwise provided in this Agreement, no Member, in such capacity, shall have any authority to bind, to act for, to sign for or to assume any obligation or responsibility on behalf of, any other Member or the Company.

            Section 4.2  No Management or Appraisal Rights.  The Members shall have only such rights and powers as are provided in this Agreement and the Act.  Except as otherwise provided in this Agreement, or as otherwise required by Law, the Members (in their capacity as such) shall not have any right or power to bind the Company or to manage or control the business and affairs of the Company other than through the Directors appointed by the Parents to the Board of Directors.  Members shall not be entitled to any appraisal rights (within the meaning of Section 18-210 of the Act) with respect to any transaction, including any merger or consolidation in which the Company is a constituent party or any sale of all or substantially all of the Company’s assets, any amendment of this Agreement or otherwise.

Article 5

BOARD OF DIRECTORS, OFFICERS,
EXCULPATION AND INDEMNIFICATION

               Section 5.1 Board of Directors.  (a) The business and affairs of the Company shall be managed by or under the direction of a Board of Directors of the Company (the “Board of Directors”), except as otherwise provided in this Agreement.  The Board of Directors shall be made up of the number of individuals (who need not be Members, officers or employees of the Company) (each, a “Director”) as provided for in this Agreement.  Each Director shall be a “manager” (as such term is defined in the Act) of the Company but, notwithstanding the foregoing, no Director shall have any rights or powers beyond the rights and powers granted to such Director in this Agreement.

(b)               Each Parent (except with respect to CME Group, unless otherwise directed in writing by CGIS, CGIS (with any Director appointed by, or entitled to be appointed by, CGIS hereunder being deemed a Director appointed by, or entitled to be appointed by, CME Group for all purposes of this Agreement)) shall be entitled to appoint a number of Directors equal to the product of (i) such Parent’s Parent Aggregate Percentage Interest over the total Percentage Interest held by both Parents and (ii) the size of the Whole Board, which product shall be rounded to the nearest whole number, provided  that, (A) if CME Group’s Parent Aggregate Percentage Interest has not gone below the CME Group Threshold, CME Group shall be entitled to appoint at least one Director and (B) when CME Group’s Parent Aggregate Percentage Interest goes below the CME Group Threshold, CME Group shall not be entitled to appoint any Directors.  Such appointments shall be effective immediately upon delivery of written notice to the Members and the Board of Directors.  The Board of Directors initially shall be made up of seven Directors, five of whom shall be appointed by MH and two of whom shall be appointed by CME Group.  Notwithstanding anything herein to the contrary, an individual may serve as a Director only so long as such individual is an employee of the Parent that appointed such Director or of an Affiliate of such Parent, except with the other Parent’s prior written consent.  The size of the Whole Board may be increased or decreased (but not below seven or above ten) by the Board of Directors.  The individuals listed on Schedule 5.1 hereto are the individuals appointed by the Parents as the initial Directors of the Company as of the Closing.  Each Director shall hold such position until his or her successor is appointed or until his or her earlier death, disability, resignation or removal as a Director.

(c)                The Board of Directors, by taking action in accordance with this Agreement, shall have the power, discretion and authority on behalf and in the name of the Company to carry out any and all of the objects and purposes of the Company contemplated by this Agreement and to perform or authorize all acts which it may determine to be necessary or appropriate in connection therewith.  No Director, acting alone or with any other Directors, shall have the right or power in such capacity to bind the Company.

(d)               Each Director shall serve without compensation in his or her capacity as such.  Each Director shall be entitled to reimbursement for reasonable and necessary out-of-pocket expenses incurred by such Director during the course of conducting the Company’s business. 

(e)                Each Director may authorize another individual (who may or may not be a Director, but who shall be an employee of the Parent that appointed such Director or of an Affiliate of such Parent) to act for such Director by proxy at any meeting of the Board of Directors, or to express consent or dissent to a Company action in writing without a meeting.  Without limiting the manner in which a Director may authorize another Person to act for such Director as proxy, a writing authorizing a Person to act for such Director as proxy, which has been executed by such Director and entered into the books and records of the Company, shall be a valid means by which a Director may grant such authority.

Section 5.2        Removal, Resignation and Vacancies. (a) Each Parent (except with respect to CME Group, unless otherwise directed in writing by CGIS, CGIS) may remove any Director appointed by it at any time, with or without cause, effective upon written notice to the Members and the Board of Directors.  In the event that a Director is no longer an employee of the Parent that appointed such Director or of any Affiliate of such Parent, such Parent shall be deemed to have thereupon removed such Director.  In the event that the number of Directors a Parent is entitled to appoint (as calculated in accordance with the first sentence of Section 5.1(b)) is reduced below the number of Directors appointed by such Parent then serving, such Parent shall promptly remove such number of Directors appointed by it as required to comply with Section 5.1(b).  No Director may be removed except in accordance with this Section 5.2(a). 

(b)               Any Director may resign by written notice to the Members and the Board of Directors.  Unless otherwise specified therein, a Director’s resignation shall take effect upon delivery. 

(c)                Any vacancy created on the Board of Directors resulting from the resignation, removal, death or disability of a Director shall be filled by the Parent (except with respect to CME Group, unless otherwise directed in writing by CGIS, CGIS) that appointed such Director, with such appointment to become effective immediately upon delivery of written notice of such appointment to the Members and the Board of Directors.

(d)               Each party hereto shall take all necessary action to effectuate fully the provisions of Section 5.1(b) and the foregoing provisions of this Section 5.2 to ensure that the Board of Directors consists of the Directors that are duly appointed in accordance with such sections.

Section 5.3  Meetings of the Board of Directors.  (a)  Regular meetings of the Board of Directors shall be held on at least a quarterly basis at such date and time as the Board of Directors may designate.  Special meetings of the Board of Directors may be called at any time by the Chairman and shall be called by the Chairman at the written request of any Director who makes such request in good faith.  Unless otherwise agreed by all of the Directors prior to a meeting, meetings of the Board of Directors may be held only in New York, New York or Chicago, Illinois.

(b)               Notice of a meeting of the Board of Directors or any committee thereof stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given to each Director by telephone, electronic mail or facsimile no less than 30 days before the date of the meeting; provided  that the Chairman or the Director requesting the meeting may reduce the advance notice period for any meeting to no less than four Business Days if the Chairman or such Director determines, acting reasonably and in good faith, that it is necessary in the best interests of the Company for the Board of Directors to take action within a time period of less than 30 days.  Notice of any meeting may be waived in writing by any Director.  Presence at the meeting shall constitute waiver of any deficiency of notice under this Section 5.3, except when such Director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not called or convened in accordance with this Agreement and does not otherwise attend the meeting.

(c)                The Secretary of the Company shall circulate to each Director an agenda for each meeting not less than five Business Days in advance of such quarterly meeting (or if sent by facsimile or email, three Business Days before the date of such meeting).  In the case of a quarterly meeting, such agenda shall include a discussion of the financial reports most recently delivered pursuant to Article 6 and any other matters that a Director may reasonably request to be included on such agenda (subject, however, to Section 6.6 and Section 11.6).  In the case of a special meeting, the agenda for such meeting shall be established by the Chairman and shall include any matters specified by the Director requesting such meeting, if applicable, and shall be provided to each Director at the time such meeting is called.

(d)               The presence in person or by proxy of a number of Directors equal to a majority of the Whole Board shall constitute a quorum for the conduct of business at any meeting of the Board of Directors; provided  that, in order to constitute a quorum, (i) at least a majority of the Directors present in person or by proxy must be Directors appointed by MH and (ii) if CME Group has the right to appoint any Directors and subject to the last sentence of this Section 5.3(d), at least one Director present in person or by proxy must be a Director appointed by CME Group.  If such quorum shall not be present at any meeting of the Board of Directors, the Directors present shall adjourn the meeting and promptly give notice of when it shall be reconvened, which notice shall include a copy of the notice previously given with respect to such meeting and, if applicable, shall specify in writing that the Board of Directors has invoked the procedures with respect to such reconvened meeting set forth in the following sentence.  If such notice is given and the reconvened meeting is held at least 48 hours after the meeting at which a quorum was not present, then, at such reconvened meeting, the presence in person or by proxy of at least one Director appointed by CME Group shall not be required in order for a quorum to be present,  provided, however, that (A) the only business that may be conducted at such reconvened meeting is the business specifically set forth in the notice of meeting for the original meeting and (B) no action that requires Board Supermajority Approval under Section 5.3(f) may be taken at such reconvened meeting unless at least one Director appointed by CME Group is present and such action is approved in accordance with Section 5.3(f). 

(e)                Each Director shall be entitled to cast one vote with respect to each matter brought before the Board of Directors (or any committee thereof of which such Director is a member) for approval.  Except as set forth in Section 5.3(f), the affirmative vote of a majority of the Directors in attendance at any meeting of the Board of Directors (or any committee thereof) at which a quorum is present shall be required to authorize any action by the Board of Directors (or any committee thereof) and shall constitute the action of the Board of Directors (or any committee thereof) for all purposes.

(f)                Notwithstanding any other provision of this Agreement (but subject to Section 5.3(g), Section 10.4 and Section 11.4), if CME Group’s Parent Aggregate Percentage Interest has not gone below the CME Group Threshold, authorization of the following actions shall require the affirmative vote of (i) a majority of the Directors in attendance at any meeting at which a quorum is present and (ii) the affirmative vote of at least one Director appointed by CME Group (“Board Supermajority Approval”) and no Company Entity may take any of the following actions without such approval:

                                                     (i)            approval of the Annual Budget of the Company for any given Fiscal Year (the “Subject Fiscal Year”), or any amendment thereto (but not, for the avoidance of doubt, any Preliminary Annual Budget), if any of the following conditions exist (for illustrative purposes, determinations of whether the conditions set forth in clauses (A), (B), (C)  and (D)  exist under hypothetical circumstances are set forth in Schedule 5.3(f)(i)): 

(A) the actual Margin for the Fiscal Year before such Subject Fiscal Year (the “Reference Fiscal Year”) is (1) five percentage points or more below the Baseline Margin for such Reference Fiscal Year, (2) five percentage points or more below the actual Margin in the Fiscal Year before such Reference Fiscal Year or (3) five percentage points or more below the Margin Floor in effect for such Reference Fiscal Year;

(B)    the aggregate amount of all cash distributed to the Members in respect of the Reference Fiscal Year was less than the amount equal to (x) 90% of EBITDA in such Reference Fiscal Year, less (y) interest payments made in such Reference Fiscal Year, less (z) the amount of cash required to finance acquisitions in such Reference Fiscal Year (provided that at least one Director appointed by CME Group voted in favor of approval of any such acquisition);

(C)  the projected Margin in the proposed Annual Budget for the Subject Fiscal Year is (1) five percentage points or more below the Baseline Margin in effect for such Subject Fiscal Year, (2) five percentage points or more below the actual Margin for the Reference Fiscal Year or (3) five percentage points or more below the Margin Floor in effect for such Subject Fiscal Year; or

(D) the aggregate amount of all cash projected by the proposed Annual Budget to be distributed to the Members in respect of the Subject Fiscal Year is less than the amount equal to (x) 90% of EBITDA, less (y) interest payments, projected by the proposed Annual Budget for such Subject Fiscal Year;

provided that, if Board Supermajority Approval is required in respect of a proposed Annual Budget as the result of any of the conditions in clauses (A) through (D)  existing and such Board Supermajority Approval is not given within 60 days of the delivery of such proposed Annual Budget to the Board of Directors, the Annual Budget for the Reference Fiscal Year shall thereupon become the Annual Budget for such Subject Fiscal Year (the “Rollover Annual Budget”) until Board Supermajority Approval for an Annual Budget for such Subject Fiscal Year is given; provided  that the aggregate expenses, capital expenditures and investments in such Rollover Annual Budget may (by determination of the Board of Directors without Board Supermajority Approval) be increased by an amount equal to the percentage difference between the CPI for the last month of the Reference Fiscal Year and the CPI for the calendar month that is 12 months prior to such calendar month (and the term Rollover Annual Budget shall refer to such increased budget);

                                                   (ii)            approval of material changes to the Brand Management Plan or the Strategic Plan of the Company;

                                                 (iii)            approval of material changes to the Business or Purpose of the Company;

                                                 (iv)            during the Blackout Period, any sale of all or substantially all of the assets of the Company Entities, taken as a whole, initial public offering, or sale, merger or consolidation of the Company (for the avoidance of doubt, without limiting the provisions of Articles 9 and 10  to the extent applicable);

                                                   (v)            (A) any acquisition, whether by purchase of assets or stock, merger or consolidation or otherwise, of assets or a business involving the payment by a Company Entity of consideration in excess of $25,000,000, other than in accordance with the contractual obligations set forth on Schedule 5.3(f)(v)(A) hereto or (B) any disposition, whether by sale of assets or stock, merger or consolidation or otherwise, of assets or a business having a value in excess of $15,000,000;

                                                 (vi)            any issuance of Membership Interests;

                                               (vii)            any redemption of Membership Interests;

                                             (viii)            any admission of new Members, including as a result of a Transfer by a Member of its Membership Interest (or any portion thereof), other than admission of new Members as a result of a Transfer described in Section 9.1(a) or Section 9.1(b); 

                                                 (ix)            any Additional Capital Contributions from any Member;

                                                   (x)            any capital expenditure in excess of $1,000,000 in any Fiscal Year, or aggregate capital expenditures in any Fiscal Year in excess of $1,500,000, in each case except as contemplated by the Annual Budget then in effect;

                                                 (xi)            any incurrence or issuance of Indebtedness by any Company Entity to a Person other than a Company Entity that would result in an aggregate total outstanding principal amount (without duplication) of such Indebtedness of the Company Entities in excess of $30,000,000, or any pledge, mortgage, encumbrance or other grant of a security interest in any of its properties or assets of any Company Entity with respect to any Indebtedness of any Company Entity to any Person other than a Company Entity in excess of such aggregate amount (without duplication);

                                               (xii)            subject to Section 5.8(e), the hiring of the Chief Executive Officer and the Chief Financial Officer, if any, of the Company;

                                             (xiii)            any transaction with any Member or any of its Affiliates, other than transactions pursuant to the Transaction Documents or the intercompany agreements set forth on Schedule 5.3(f)(xiii) hereto and any other transactions entered into in the ordinary course of business consistent with past practice of the Company (including the past practice of MH prior to the date hereof) that are either immaterial (individually or in the aggregate with other transactions with such Member or any of its Affiliates) or on terms no less favorable to the Company Entities than those that could be obtained on arm’s-length terms from a Person who is not an Affiliate;

                                             (xiv)            any license of any Company brand to MH or any of its Affiliates (including Platts);

                                               (xv)            making any loans to any Member or officer or employee of the Company Entities, other than loans to officers and employees for amounts in the ordinary course of business consistent with past practice of the Company (including the past practice of MH prior to the date hereof), including travel advances, that in the aggregate are not material, or forgiving any loans to any Member or officer or employee of the Company;

                                             (xvi)            any distribution to Members other than as required by Section 8.1(a); 

                                           (xvii)            any amendment of, or consent or waiver under, any Transaction Document (other than the Certificate of Formation, the amendment of which shall be governed by Section 14.2) in any manner that adversely affects the CME Group Members or disproportionately benefits any other Member;

                                         (xviii)            any settlement or compromise of any litigation or claims in which the amount payable by the Company Entities exceeds $750,000, or aggregate settlements or compromises of any litigation or claims in any Fiscal Year in which the amount payable by the Company Entities exceeds $1,500,000, in each case other than litigations and claims relating to the Company’s Intellectual Property; and

                                             (xix)            any voluntary (or consent to any involuntary) bankruptcy or any dissolution or liquidation of the Company.

(g)               Notwithstanding anything herein to the contrary, the provisions of Section 5.3(f) shall terminate and Board Supermajority Approval shall no longer be required for any matter upon the earlier of (i) at MH’s election, a Change of Control of CME Group in which the Acquirer is not a Qualified Party (an “Unqualified Party Approval Termination”), such election, if any, to be made by MH not more than twenty Business Days after such Change of Control (and if not made by MH by such date, the right to make such an election with respect to such Change of Control of CME Group shall be irrevocably waived) and (ii) if MH delivers a Specified Buy-Out Notice, the later of (x) delivery of an irrevocable waiver of MH’s right to defer the Put/Call Closing Date pursuant to Section 9.4(b) in respect of such MH Special Call or CME Group Put and (y) the date on which all required governmental approvals, if any, in respect of the Transfer contemplated by such Specified Buy-Out Notice shall have been received.  In the event that the provisions of Section 5.3(f) are terminated pursuant to clause (ii) of this paragraph (g), both Parents’ obligations under Article 11 and Article 12 shall all terminate; provided, however, in the case of this clause (ii) that (x) such Board Supermajority Approval rights and MH’s obligations under Article 11 and Article 12 shall be automatically restored prospectively without any further action of the parties if MH breaches its obligation to consummate the MH Special Call or CME Group Put, as applicable, as required by the terms of this Agreement and (y) CME Group’ obligations under Article 11 and Article 12 shall be automatically restored prospectively without any further action of the parties if CME Group breaches its obligation to consummate the MH Special Call or CME Group Put, as applicable, as required by the terms of this Agreement.

(h)               The Secretary of the Company or, if he or she is not present, any individual whom the Chairman of the Board of Directors may appoint, shall keep minutes of each meeting which shall reflect all actions taken by the Board of Directors thereat.

(i)                 The Board of Directors may establish other provisions and procedures relating to the governance of its meetings that are not in conflict with the terms of this Agreement.

(j)                 No more than 30 days following any meeting of the Board of Directors or any committee thereof, the Company shall provide or cause to be provided minutes of such meeting to all Directors (or members of such committee), which minutes shall state the date, place and time of the meeting, the Directors present at such meeting and, if applicable, the resolutions put to a vote and the results of such voting.  All minutes shall be subject to a vote of approval by the

(b)               Any Director may participate in a meeting of the Board of Directors or any committee thereof, by means of a conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear one another.  Participation in a meeting pursuant to this Section 5.4(b) shall constitute presence in person at such meeting.

   Section 5.5 Chairman of the Board of Directors. The Board of Directors may appoint any one of the Directors appointed by MH to act as Chairman of the Board of Directors and preside at all meetings of the Board of Directors at which he or she is present, subject to the ultimate authority of the Board of Directors to appoint an alternate presiding officer at any meeting.  The initial Chairman is named on Schedule 5.5.  For the avoidance of doubt, a Director shall not be considered to be an officer of the Company by virtue of holding the position of Chairman and, except as provided in Section 5.3(a) or Section 5.3(h) and the first sentence of this Section 5.5, shall not have any rights or powers different from any other Director other than with respect to procedural matters to the extent delegated by the Board of Directors, it being understood that any procedural rights or powers granted to the Chairman shall not be in derogation of any rights or powers granted by this Agreement to the Directors appointed by CME Group.

    Section 5.6  Committees of the Board of Directors. (a) The Board of Directors may designate one or more committees, with each committee to consist of two or more of the Directors of the Company, subject to the requirements set forth in this Section 5.6.  Each Parent shall be entitled to appoint a number of Directors to such committee equal to the product of (i) such Parent’s Parent Aggregate Percentage Interest over the total Percentage Interest held by both Parents and (ii) the size of such committee, which product shall be rounded to the nearest whole number, provided that if CME Group is entitled to appoint one Director, CME Group shall be entitled to appoint one Director to such committee.  To the extent permitted by Law and provided in the resolution of the Board of Directors establishing any committee, such committee shall, subject to Section 5.3(f), have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Company, and may authorize the seal of the Company to be affixed to all papers which may require it.  Each committee shall keep regular minutes and report to the Board of Directors when required.

(b)               The presence in person or by proxy of a number of Directors equal to a majority of the total number of Directors (including any vacant seats) comprising the applicable committee shall constitute a quorum for the conduct of business at any meeting of such committee; provided that, in order to constitute a quorum (i) at least a majority of the Directors on such committee present in person or by proxy must be Directors appointed by MH and (ii) if CME Group has the right to appoint any Directors to such committee, at least one Director present in person or by proxy must be a Director appointed by CME Group.  The fixing of the time and place of its meetings shall be made and determined in accordance with clauses (a) (other than the provisions requiring regular quarterly meetings), (b) and (c) of Section 5.3 and actions of any committee shall be made and determined in accordance with Section 5.3(e).  Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 5.3(b). 

    Section 5.7 Subsidiary Boards of Directors.  Unless otherwise unanimously agreed by the Board, the boards of directors (or similar governing bodies) of the Subsidiaries of the Company shall consist of individuals who are Directors or officers or employees of the Company Entities (other than any such Subsidiary that is managed by its owner(s)); provided that each Parent shall have the right to appoint a number of directors (or equivalents) on the boards of directors (or similar governing bodies) of all Subsidiaries of the Company equal to the product of (a) such Parent’s Parent Aggregate Percentage Interest over the total Percentage Interest held by both Parents and (b) the size of such board (or equivalent), which product shall be rounded to the nearest whole number, provided that, if CME Group is entitled to appoint one Director, CME Group shall be entitled to appoint one director (or equivalent) to such Subsidiary board (or similar governing body).  Unless otherwise unanimously agreed by the Board, the quorum, removal rights, meeting procedures and meeting requirements set forth in this Article 5 shall apply mutatis mutandis to Subsidiaries of the Company and the boards of directors (or similar governing bodies) of such Subsidiaries.

    Section 5.8 Officers.  (a)  Designation and Appointment of Officers.  Subject to Section 5.3(f)(xii), the Board of Directors may, from time to time, employ and retain Persons as it may determine to be necessary or appropriate for the conduct of the Company’s business (subject to the supervision and control of the Board of Directors), as officers of the Company, with such titles as may be designated by the Board of Directors, including “chief executive officer,” “chief financial officer,” “president,” “vice president,” “treasurer,” “secretary,” “general counsel” and “director.”  Any number of offices may be held by the same Person.  The Board of Directors may choose not to fill any office for any period.  Each officer shall hold office until his or her successor shall be duly appointed and shall have qualified as an officer or until his or her death or disability or until he or she shall resign or shall have been removed in the manner hereinafter provided.  An officer of the Company need not be an employee or Member of the Company or a resident of the State of Delaware, and may be a Director or a director (or equivalent), officer or employee of any Member or any of its Affiliates.

(b)               Removal of Officers; Vacancies.  Any officer may resign as such at any time, subject to any agreement between the Company and such officer.  Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Board of Directors.  The acceptance by the Board of Directors of a resignation of any officer shall not be necessary to make such resignation effective, unless otherwise specified in such resignation.  Any officer may be removed as such, either with or without cause, at any time by the Board of Directors or any authorized committee thereof and, subject to Section 5.3(f)(xii), vacancies may be filled by approval of the Board of Directors or any authorized committee thereof.  Designation of any Person as an officer by the Board of Directors shall not in and of itself vest in such Person any contractual or employment rights with respect to the Company.

Directors shall not in and of itself vest in such Person any contractual or employment rights with respect to the Company.

(c)                Powers and Duties.  The officers of the Company shall be responsible for the day-to-day management of the Company and, subject to the terms of this Agreement, shall have such authority and perform such duties in the day-to-day management of the Company as may be prescribed by the Board of Directors and, to the extent not so prescribed, as generally pertain to their respective offices, subject to the supervision and control of the Board of Directors or any authorized committee thereof.

(d)               Compensation.  The Board of Directors may authorize reimbursement for ordinary course business expenses and, subject to Section 5.3(f), compensation from the funds of the Company for the officers, employees and agents appointed by or under the authority of the Board of Directors.

(e)                Hiring of Chief Executive Officer and Chief Financial Officer. 

                                                     (i)            So long as Section 5.3(f)(xii) applies, the Chief Executive Officer and the Chief Financial Officer, if any, shall be hired in accordance with the following process.  The Directors appointed by MH shall identify a candidate, who shall, in their reasonable judgment, have the applicable Required Qualifications, in writing.  The Directors appointed by CME Group, acting unanimously, may within 15 days reject any such candidate for any reason by written notice to the MH Directors and to MH.  Following any such rejection, the Directors appointed by MH shall identify by delivery of written notice to the Directors appointed by CME Group and to CME Group up to three other candidates, each of whom shall, in the reasonable judgment of the Directors appointed by MH, have the applicable Required Qualifications.  The Directors appointed by CME Group, acting unanimously, may within 15 days by written notice to the MH Directors and to MH (A) reject one of such candidates for any reason and (B) reject any candidate who in such Directors’ reasonable judgment (1) does not have the Required Qualifications or (2) has a conflict of interest.  Subject to the preceding sentence, Board Supermajority Approval shall not be required for the hiring of any candidate identified on any second notice contemplated by this Section 5.8(e)(i) that has not been rejected by CME Group in accordance with this Section 5.8(e)(i).  For the avoidance of doubt, if following such notices, no candidate on such notices is hired, the hiring of any other candidate shall again be subject to the procedures set forth in the preceding three sentences (except that CME Group may then not reject any of such candidates for any reason but may only reject a candidate who does not have the Required Qualifications or who has a conflict of interest).

                                                   (ii)            At any time that the Company does not have a Chief Executive Officer or Chief Financial Officer, the Board of Directors, without Board Supermajority Approval, may appoint an interim Chief Executive Officer or Chief Financial Officer, as applicable, provided  that, so long as Section 5.3(f)(xii) applies, such an interim appointment of longer than one year shall require Board Supermajority Approval.

                                                 (iii)            The initial Chief Executive Officer of the Company is named on Schedule 5.8(e)(iii). 

(b)               Subsequent Amendment.  No amendment of this Section 5.9 shall impair the rights of any Indemnified Person arising at any time with respect to any acts or omissions occurring prior to such amendment.  For purposes of this Section 5.9, the term “Company” shall include any constituent entity (including any constituent of a constituent) absorbed by the Company in a consolidation or merger.

(c)                Survival.  Notwithstanding anything herein to the contrary, the provisions of this Section 5.9 shall survive the termination, voluntary or involuntary, of an Indemnified Person’s status as such, and shall survive the termination of this Agreement or dissolution or liquidation of the Company.

(d)               Insurance.  The Company may, on its own or in conjunction with the MH Entities, and in such amounts as the Board of Directors may determine, purchase and maintain insurance on behalf of any Person who is or was an Indemnified Person against any liability asserted against or incurred by such Indemnified Person in any such capacity or arising from its status as such, whether or not the Company would have power to indemnify such Indemnified Person against such liability in accordance with this Section 5.9; provided  that all Directors and Members shall be treated equally in such regards.

(e)                Non-Exclusivity.  The indemnification provided by the foregoing provisions of this Section 5.9 shall not be exclusive of any other rights to which any Person may be entitled, including any right under policies of insurance that may be purchased and maintained by the Company or others; provided that all Directors and Members shall be treated equally in such regards.

(f)                Application of Contribution Agreement and Transaction Documents.  Nothing contained in this Section 5.9 is intended to relieve any Member or any other Person from any liability or obligation of such Person pursuant to the Contribution Agreement or any other Transaction Document, or to in any way impair the enforceability of any provision of such agreements against any party thereto.

(g)               Limitations.  Any indemnity under this Section 5.9 shall be provided solely out of, and only to the extent of, the Company’s assets, and no Parent or Member shall be required directly to indemnify any Indemnified Person pursuant to this Section 5.9.   

Section 5.10 Exculpation and Other Limitations of Obligations and Liabilities.  (a) No  Fiduciary or Implied Duties.  To the fullest extent permitted by the Act, no Director, Member or Parent shall owe any fiduciary duty or, except as otherwise expressly provided for in this Agreement, any other duty to the Company, any Member or any Parent.  Officers of the Company shall owe the same duties to the Company and its Members as officers of a corporation organized under the laws of the State of Delaware owe to such corporation and its stockholders.

(b)               Exculpation. 

                                                     (i)            No Director of the Company shall be liable for monetary damages to the Company, any Member or any Parent, except to the extent such Director is found by a final, non-appealable judgment of a court of competent jurisdiction to have acted with bad faith or engaged in willful misconduct.

                                                   (ii)            A Director of the Company shall be fully protected in relying in good faith upon the records of the Company Entities and upon such information, opinions, reports or statements presented to any of the Company Entities by any Person as to matters such Director reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of any of the Company Entities, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, Profits or Losses or any other facts pertinent to the existence and amount of assets from which distributions to Members might properly be paid.  The preceding sentence shall in no way limit any Person’s right to rely on information to the extent provided in Section 18-406 of the Act.

(c)                Transactions with Members and Directors.  Subject to clauses (xi), (xiii)  and (xv)  of Section 5.3(f), (i) any Member or Director of the Company may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or assume one or more obligations of, provide collateral for, and transact other business with the Company and, subject to applicable Law, shall have the same rights and obligations with respect to such matter as a Person who is not a Member or Director of the Company and (ii) any Member and the members, shareholders, partners and Affiliates thereof shall be able to transact business or enter into agreements with the Company to the fullest extent permissible under the Act.

(d)               Other Activities; Business Opportunities. 

                                                     (i)            Except as otherwise provided in Article 11, any Director, Member or Parent may engage in or possess any interest in another business or venture of any nature and description, independently or with others, and neither the Company nor any other Member (in its capacity as a Member) shall have any rights in or to any such independent ventures or the income or profits derived therefrom.

                                                   (ii)            Except as otherwise provided in Article 11, if a Director, Member or Parent acquires knowledge of a potential transaction or matter which may be a business opportunity for both such Person and the Company or another Member, such Person shall have no duty to communicate or offer such business opportunity to the Company or any other Member.  

(e)                No Disqualification.  Subject to Section 11.4, no Director shall be disqualified from voting on matters as to which such Director or the Parent that appointed such Director may have a conflict of interest. 

Section 5.11 Claims under Transaction Documents.  Notwithstanding any other provision of this Agreement, each Parent shall be responsible for its respective Parent Entities’ compliance with their obligations under each of the Transaction Documents to which such Parent Entities are parties.  In the event of a breach by a Parent Entity of an obligation owed to any Company Entity in any Transaction Document, the other Parent shall be entitled to assert a claim for and enforce, at the Company’s reasonable expense, such obligation on behalf of any Company Entity and may pursue on behalf of any Company Entity all remedies available to any Company Entity in respect of such breach.  For the avoidance of doubt, if there is an event of default under the MH Brand License, CME Group shall have the right to enforce such license on behalf of the Company in accordance therewith and exercise all rights and remedies the Company may have thereunder.  The Company Entities shall cooperate and comply with any reasonable instructions received from the Parent enforcing the rights of the Company Entities in connection with any of the foregoing actions.  The Parent exercising any rights pursuant to this Section 5.11 agrees to promptly reimburse the Company for any expenses advanced to such Parent or incurred by the Company Entities if such Parent is not successful in asserting such claim.

Article 6

ACCOUNTING, TAX, FISCAL AND LEGAL MATTERS

Section 6.1  Fiscal Year.  The fiscal year of the Company (“Fiscal Year”) shall be the calendar year, or such other year as may be fixed from time to time by a unanimous vote of all Directors, subject to Section 706 of the Code.  The Company shall have the same Fiscal Year for federal income tax purposes and for accounting purposes.

Section 6.2 Books of Account and Other Information.  (a)  The Company shall prepare and maintain, at its principal place of business, separate books of account for the Company that shall show a true and accurate record of all expenses incurred, all charges made, all credits made and received and all income derived in connection with the operation of the Company’s business in accordance with GAAP.  All questions of accounting shall be determined by the Board of Directors or a committee or officer authorized by the Board of Directors to make such determination.

(b)               In addition to such books and records, the Board of Directors shall cause the Company to maintain and make available at the principal business office of the Company (or, with respect to copies of the Company’s or any of the Company Entities’ income tax returns, at the principal business office of the Tax Matters Member):  (i) copies of any federal, state, local or foreign income tax returns, if any, filed or required to be filed by any of the Company Entities, in each case for the eight most recent years or, if not prepared for the eight most recent years, such lesser period for which such documents have been prepared and (ii) all other records required to be maintained pursuant to this Agreement or the Act.

(c)                In the event that there is any change after the date of the Contribution Agreement in GAAP (whether as a result of a change in U.S. generally accepted accounting principles or a change in the application thereof by MH) that may affect the calculation of GAAP-based metrics in this Agreement, the GAAP-based metrics used as benchmarks contemplated in this Agreement will be adjusted on a pro forma basis to the extent that the change impacted the Company’s results so as to produce a consistent relative benchmark to the Company’s results that reflect the impact of the GAAP change (for example, if an accounting change occurred that adversely impacted the Company’s Margin by 2%, causing the gross profit percentage run rate to decrease from 58% to 56% (a 3.4% decrease), the Baseline Margin, whose components are determined in accordance with GAAP, would decrease by 3.4% as well).

Section 6.3 Auditors.  The auditors of the Company, if any, shall be such firm of nationally recognized certified independent public accountants as shall be selected by MH.

Section 6.4  Preliminary Annual Budget, Annual Budget, Brand Management Plan and Strategic Plan.  (a)  The Annual Budget for the remainder of the 2012 Fiscal Year, the Brand Management Plan and the Strategic Plan are set forth on Schedule 6.4(a), Schedule 6.4(b) and Schedule 6.4(c) hereto, respectively.  The Chief Executive Officer, in consultation with the Board of Directors, shall be responsible for the preparation and delivery to the Board of Directors for their consideration and approval of (i) the Preliminary Annual Budget for each Fiscal Year beginning with the 2014 Fiscal Year no later than 15 days prior to the beginning of such Fiscal Year, (ii) subject to Section 5.3(f)(i), the Annual Budget for each Fiscal Year beginning with the 2014 Fiscal Year no later than 60 days after the completion of the preceding Fiscal Year (and in any event at the same time that the financial statements contemplated by Section 6.5(b)(iii) are delivered) and (iii) subject to Section 5.3(f)(ii), any proposed amendment to the Preliminary Annual Budget, Annual Budget, Brand Management Plan or the Strategic Plan, as applicable.  The Preliminary Annual Budget and the Annual Budget shall be prepared in a manner consistent in all material respects with (except to the extent attributable to any changes in GAAP), and at a minimum shall include substantially the same types of information, including (x) projected Margin for such Fiscal Year (and substantially the same types of components thereof) and (y) projected Free Cash Flow (and substantially the same types of components thereof) projected to be distributed to the Members in such Fiscal Year, set forth in, the 2013 Annual Budget approved in accordance with Section 6.4(b).  Upon approval of the Annual Budget in accordance with Article 5, the Annual Budget shall replace and supersede in its entirety the Preliminary Annual Budget for the applicable Fiscal Year.

(b)               No later than January 15, 2013, MH and CME Group shall agree upon the Annual Budget for the 2013 Fiscal Year, and such Annual Budget shall be the Annual Budget for such Fiscal Year for all purposes of this Agreement.

Section 6.5 Access to Company Information.  (a)  Subject to any restrictions provided in this Agreement (including Section 11.6), (i) each party hereto shall be entitled to inspect and examine the books, records and accounts of the Company Entities at reasonable times and in a reasonable manner so as not to unduly interfere with the management and business of any of the Company Entities, and make copies thereof or extracts therefrom; provided  that the inspecting party shall bear its own expenses and all reasonable expenses incurred by such Company Entity in any inspection or examination requested by such party pursuant to this sentence; (ii) if the Company prepares or makes available any reporting package or other report or written analysis for any party hereto pursuant to this Section 6.5(a) or otherwise, the Company shall promptly provide a copy thereof to the other parties; (iii) each party shall have the right, at its own expense and from time to time upon reasonable prior notice and at reasonable times and in a reasonable manner so as not to unduly interfere with the management and business of the Company Entities, to perform a review or retain an independent certified public accountant or other outside consultant to audit the Company Entities’ books, records, policies and procedures, such as payroll and tax records, including an independent audit of the Company’s financial statements; provided  that no more than one such review or audit may be performed on behalf of a Parent in any Fiscal Year; and (iv)  any Director or officer may communicate any information to any party hereto, and shall have no liability therefor.

(b)               The Company shall cause to be prepared and delivered to each party hereto all of the information described in this Section 6.5(b): 

                                                     (i)            within six Business Days after the end of each calendar month, the monthly profit and loss statements (and any other financial reports, if any) prepared by the management of the Company and provided to the management of the Company or of any MH Member or parent thereof;

                                                   (ii)            within 45 days after the end of each Fiscal Quarter (or, if earlier, the date on which MH files its periodic report for such Fiscal Quarter with the Securities and Exchange Commission), (A) the unaudited consolidated balance sheet of the Company Entities as at the end of such Fiscal Quarter and (B) the related unaudited statements of operations for such Fiscal Quarter, for the portion of the Fiscal Year then ended, in the case of each of clauses (A) and (B)  prepared in accordance with GAAP;

                                                 (iii)            within 90 days after the end of each Fiscal Year (or, if earlier, the date on which MH files its periodic report for such Fiscal Year with the Securities and Exchange Commission), the unaudited consolidated balance sheet of the Company Entities as at the end of such Fiscal Year and the related unaudited statements of operations and cash flow for such Fiscal Year, in each case prepared in accordance with GAAP; and

                                                 (iv)            concurrent with the delivery of any financial information being delivered to each party hereto pursuant to the foregoing clauses (i) through (iii), a comparison of such financial information to any projections, estimates or forecasts that relate to such financial information as set forth in the applicable Preliminary Annual Budget or Annual Budget.

(c)                Subject to applicable Laws, each party hereto shall, upon reasonable request by another party hereto, provide to such other party such information and data concerning itself and its Subsidiaries to the extent (and only to the extent) required to enable such other party and its Subsidiaries to comply with applicable Law; provided  that such requests are made at reasonable times and in a reasonable manner so as not to unduly interfere with the management and business of such party or its Subsidiaries; provided, further, that such information and data shall be shared only with personnel of such other party or its Subsidiaries that are required to have access to such information and data so as to permit such compliance with applicable Law.

(d)               Any information obtained by a party hereto pursuant to this Section 6.5 shall be held in confidence pursuant to the terms of Section 6.6. 

Section 6.6 Confidentiality.  (a)  As used herein, “Information” means all technical, financial and other information (including information relating to customers of the Company Entities or of any party hereto or any of its Subsidiaries and information of any regulatory nature) whatsoever, in whatever form it may be held, relating to the business and operations of any of the Company Entities or any party hereto or any of its Subsidiaries, in each case which is furnished to any Company Entity or any party hereto or any of such party’s Subsidiaries (in such capacity, an “Information Recipient”) pursuant to this Agreement or any of the Transaction Documents or otherwise in connection with the business or governance of the Company Entities.

(b)               Each Information Recipient party hereto shall, and shall cause its controlled Affiliates (including its controlled Affiliates that are Information Recipients) to, comply with the provisions of Law regarding confidentiality as they relate to any Company Entity or any party hereto or any of its Subsidiaries.  Without limiting the foregoing, each Information Recipient party hereto shall, and shall cause its respective controlled Affiliates (including its controlled Affiliates that are Information Recipients) to, comply with all applicable federal, state and other Laws relating to the sharing and disclosure of any Information that may be covered thereby.

(c)                Each Information Recipient party hereto shall, and shall cause its controlled Affiliates (including its controlled Affiliates that are Information Recipients) and the Information Representatives of such Information Recipient to, treat all Information with the same degree of care and confidentiality that it affords its own trade secrets and proprietary information.  Each Information Recipient party hereto agrees not to, and to cause its controlled Affiliates (including its controlled Affiliates that are Information Recipients) and the Information Representatives of such Information Recipient not to, disclose or communicate to any Person (other than, to the extent permitted by Law, to (i) any representatives, employees, advisers or agents of such Information Recipient or its Affiliates who need to know such Information in the normal course of the performance of their duties or (ii) counterparties to any contracts or agreements with such Information Recipient or its Affiliates who need to know such Information for valid business purposes, in the case of each of clauses (i) and (ii)  in furtherance of the transactions contemplated by this Agreement and the Transaction Documents or the operations of the Company Entities (each Person described in clauses (i) and (ii), an “Information Representative” of such Information Recipient), in each case who are informed of and agree to comply with the terms and conditions of this Section 6.6), in any manner whatsoever, any Information supplied by any Company Entity or any party hereto or any of such party’s Subsidiaries, without the prior written consent of the Person that furnished such Information.  Notwithstanding anything in this Agreement to the contrary, unless otherwise agreed in writing by CME Group and the Company, no CME Group Entity may disclose or communicate any Information to any CME Group Unaffiliated Entity.

(d)               Each Information Recipient party hereto shall, and shall cause its controlled Affiliates (including its controlled Affiliates that are Information Recipients) to, comply with the antitrust Laws regarding information sharing as they relate to any Company Entity, MH Entity and CME Group Entity.

(e)                Each Information Recipient party hereto agrees to use, and to cause its controlled Affiliates (including its controlled Affiliates that are Information Recipients) to use, Information received from any Company Entity, MH Entity or CME Group Entity only in connection with its investment in the Company or the transactions contemplated by this Agreement or the Transaction Documents, and for no other purpose, except as otherwise permitted by this Agreement or the Transaction Documents.

(f)                Nothing contained herein shall be construed as restricting or creating any liability or obligation for the disclosure, communication or use of Information that:

                                                     (i)            is or becomes publicly known through no wrongful act of the disclosing Information Recipient or its Affiliates;

                                                   (ii)            is received, without breach of this Agreement or any Transaction Document, from a Person that is not known by the disclosing Information Recipient to be under any confidentiality obligation to the Company Entities, MH Entities or CME Group Entities with respect thereto;

                                                 (iii)            is disclosed as required by Law, including the rules of any national securities exchange on which such Information Recipient’s securities are listed, or legal process or formal or informal investigative request or demand; provided  that, prior to any such disclosure, the disclosing Information Recipient shall (A) provide prompt advance written notice to the Company and to the Person that provided such Information of its intention to do so pursuant to this exception to the extent that it is practicable in the circumstances to do so and (B) at the request of the Company or the Person that provided such Information, cooperate in all reasonable respects in maintaining the confidentiality of such information, including obtaining a protective order or other similar order and requesting that the applicable Governmental Authority apply confidential treatment to the applicable records; or

                                                 (iv)            subject to Section 9.1(h), is disclosed to a Third-Party Acquirer or any of its advisors or representatives in connection with an actual or potential Transfer; provided that (A) such Third-Party Acquirer enters into a confidentiality agreement with respect thereto and (B) any competitively sensitive Information may only be disclosed pursuant to a customary clean room agreement.

(g)               The provisions of this Section 6.6 shall survive termination of this Agreement, but shall expire with respect to the MH Entities or CME Group Entities on the third anniversary of the first date on which no MH Entity or CME Group Entity, respectively, is a Member of the Company; provided  that with respect to any competitively sensitive Information (including customer lists), the provisions of this Section 6.6 shall survive indefinitely.

(h)               The Confidentiality and Non-Disclosure Agreement dated September 28, 2010 between MH and CME Group is hereby terminated; provided  that such termination shall not release a breaching party thereto from any liability for any breach thereof prior to such termination.

Section 6.7 Certain Tax Matters.

(a)                Tax Matters Member.  The Initial MH Member or any Member designated by MH shall be the “tax matters partner” of the Company within the meaning of Section 6231 of the Code and the Treasury Regulations promulgated thereunder (such Member, the “Tax Matters Member”) and shall be authorized to act on behalf of and represent the Company (at the Company’s expense) with respect to any tax matters, including, without limitation, in connection with all examinations of the Company’s affairs by tax authorities and any resulting administrative and judicial proceedings, and to expend Company funds for professional services and expenses associated therewith.  For the avoidance of doubt, this Section 6.7(a) shall be interpreted in a manner consistent with the rest of the provisions of this Section 6.7. 

(b)               Authority. The Tax Matters Member shall use commercially reasonable efforts to consult with all other Members regarding significant income tax matters relating to the Company Entities.  The Tax Matters Member shall take into account the significant income tax concerns and objectives, stated in writing, of the other Member(s).  The Tax Matters Member shall be authorized to (i) manage and control all tax proceedings with respect to the Company Entities (subject to Section 6.7(e)) and (ii) cause the Company Entities to make all tax elections required or permitted to be made by any of the Company Entities under applicable Law (including an election under Section 754 of the Code (subject to Section 6.7(j)), but excluding the election of allocation method under Section 704(c) of the Code with respect to the CME Group Contributed Assets or the MH Contributed Assets, which shall be determined pursuant to Section 7.6).  Each Member agrees (i) to cooperate with the Tax Matters Member with respect to tax matters relating to or affecting any of the Company Entities and (ii) to keep the Tax Matters Member informed of each material development with respect to any tax matter relating to or affecting any of the Company Entities or any other Member and make related documents available to the Tax Matters Member before submission to any taxing authority or court.

(c)                Rights of Members.  Each Member shall be considered to have retained such rights and obligations (if any) as are provided for under the Code or any other applicable Law with respect to any examination, proposed adjustment or proceeding relating to the federal income tax items of the Company Entities (including its rights under Section 6224(c) of the Code and its right to notice of any proposed tax settlements in any court case involving the Company Entities).  For the avoidance of doubt, this Section 6.7(c) shall be interpreted in a manner consistent with the rest of the provisions of this Section 6.7. 

(d)               Required Notice. The Tax Matters Member shall use commercially reasonable efforts to keep all Members informed as to any discussions with any taxing authority with respect to any material tax issue concerning the income tax items that are required to be reported on the tax returns of the Members (and not, for the avoidance of doubt, any tax items relating to entity-level taxes imposed on the Company Entities, except for such pending or threatened examinations, adjustments or proceedings the potential outcome of which would require a Member to file a tax return in a jurisdiction in which it does not currently file a tax return, provided that such Member has previously furnished the Tax Matters Member with a complete list of all such jurisdictions, which list includes the jurisdiction in question).  Without limiting the generality of the immediately preceding sentence, the Tax Matters Member shall provide notice to the other Members promptly (and in any event, no later than 30 days) after it receives notice from any tax authority of any pending or threatened examination, adjustment or proceeding relating to any material income tax items of the Company Entities that are required to be reported on the tax returns of the Members (and not, for the avoidance of doubt, any tax items relating to entity-level taxes imposed on the Company Entities, except for such pending or threatened examinations, adjustments or proceeding the potential outcome of which would require a Member to file a tax return in a jurisdiction in which it does not currently file a tax return, provided that such Member has previously furnished the Tax Matters Member with a complete list of all such jurisdictions, which list includes the jurisdiction in question).  The Tax Matters Member (i) shall use commercially reasonable efforts to consult with the other Members with respect to the conduct of such examinations or proceedings, or any court proceedings with respect to such tax items of the Company Entities and (ii) shall use commercially reasonable efforts to afford the other Members a reasonable opportunity to review drafts of any related submission to the IRS or any court.  For the avoidance of doubt, any tax item or tax issue that relates to allocations of income, gain, loss and deduction to CGIS under Section 704(c) of the Code and the Treasury Regulations promulgated thereunder shall be considered a material tax item or material tax issue.

(e)                Right for Independent Representation.  Upon written notice to the Tax Matters Member, each Member shall be entitled to represent itself, or to obtain independent counsel and other advisors to represent it, in connection with any examination, proposed adjustment or proceeding described in Section 6.7(d) to the extent (i) such examination, proposed adjustment or proceeding relates to allocations of income, gain, loss and deduction to such Member under Section 704(c) of the Code and the Treasury Regulations promulgated thereunder or (ii) the potential outcome of such examination, proposed adjustment or proceeding would require a Member to file a tax return in a jurisdiction in which it does not currently file a tax return (provided that such Member has previously furnished the Tax Matters Member with a complete list of all such jurisdictions, which list includes the jurisdiction in question).  In the event that a Member notifies the Tax Matters Member in writing of its intention to exercise its rights pursuant to the preceding sentence, the Tax Matters Member agrees (i) to supply such other Member and its counsel and other advisors, as the case may be, with copies of all relevant written communications received by the Tax Matters Member with respect thereto, together with such other information as they may reasonably request in connection therewith (and such other Member agrees to supply the Tax Matters Member and its counsel and other advisors, as the case may be, with copies of all relevant written communications received by such other Member with respect thereto, together with such other information as they may reasonably request) and (ii) to cooperate with such other Member and its counsel and other advisors, as the case may be, in connection with such other Member’s separate representation, to the extent reasonably practicable and at the sole cost and expense of such other Member.

(f)                Review of Tax Returns.  The Company shall (i) prepare or cause to be prepared IRS Forms 1065 and such other forms, tax returns or other documents (including Schedule K-1 and any comparable state and local tax forms) as shall be necessary to enable each Member to prepare its income tax returns and (ii) provide (A) such IRS Forms 1065 and Schedules K-1 to each Member as soon as reasonably practicable, but in no event later than July 15 following the end of the Company’s Fiscal Year and (B) such comparable state and local tax forms to each Member as soon as reasonably practicable, but in no event later than August 15 following the end of the Company’s Fiscal Year (or, in the case of each of subclauses (A) and (B), such other date as the Parents may reasonably agree).  The Tax Matters Member shall use commercially reasonable efforts to circulate to each Member for its review a draft of any federal, state or local income tax return, described above in this Section 6.7(f), of any of the Company Entities no later than 30 days prior to the due date for the filing of such return.  If any Member shall object to any item on any such tax return then the Tax Matters Member shall consider any such reasonable objection in good faith.

(g)               Tax Returns of the Members.  Each Member shall file its tax returns in a manner consistent with the Company’s tax returns; provided  that if any Member objects to any item on the Company’s tax return, then such Member shall have the right to file its own tax returns in a manner considered by such Member to reflect the tax treatment of such disputed item; provided, further, that such Member shall not file such inconsistent tax return unless it first receives a written opinion from a nationally recognized law firm concluding that the treatment proposed by such Member should be respected by the courts if challenged by any taxing authority.

(h)               Administrative Adjustment; Representation Before Taxing Authority No Member other than the Tax Matters Member shall file on behalf of the Company any tax return or any request for administrative adjustment.  No Member other than the Tax Matters Member shall represent or act on behalf of the Company before any taxing authority or discuss or correspond regarding any matter relating to the Company Entities with any taxing authority.

(i)                 Expenses.  All reasonable out-of-pocket expenses and costs incurred by the Tax Matters Member in its capacity as such shall be paid by the Company as an ordinary expense of its business.

(j)                 Section 754 Election.  In the event that the Company does not have an election in effect under Section 754 of the Code with respect to any Fiscal Year during which (i) any of the MH Members or any of the CME Group Members transfers any Membership Interest (or any portion thereof) or (ii) any member of a CME Group Member or any member of a MH Member transfers its interest in such CME Group Member or MH Member, then, at the request of such MH Member or such CME Group Member, the Tax Matters Member shall cause the Company to make an election under Section 754 of the Code.

(k)               Classification as Partnership.  The Members intend that the Company shall be classified as a partnership (other than a publicly traded partnership) for federal and, if applicable, state and local income tax purposes, and agree to take such actions as may be necessary to receive and maintain such treatment and refrain from taking any actions inconsistent therewith.

Article 7

ALLOCATIONS

Section 7.1 Allocation of Profits and Losses.  After giving effect to the special allocations set forth in Section 7.2, Profits and Losses of the Company for each Fiscal Year shall be allocated to the Members pro rata in accordance with their respective Percentage Interests.

Section 7.2  Special Allocations.  Notwithstanding anything herein to the contrary, the following special allocations, if applicable, shall be made in the following order:

(a)                Company Minimum Gain Chargeback.  Except as otherwise provided in Treasury Regulations Section 1.704-2(f), notwithstanding anything herein to the contrary, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of such net decrease in Company Minimum Gain during such Fiscal Year, determined in accordance with Treasury Regulations Section 1.704-2(g).  Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto.  The items to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704‑2(f)(6) and 1.704-2(j)(2).  This Section 7.2(a) is intended to comply with the minimum gain chargeback requirements in Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.

(b)               Member Minimum Gain Chargeback.  Except as otherwise provided in Treasury Regulations Section 1.704-2(i)(4), notwithstanding anything herein to the contrary, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Member that has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with the principles of Treasury Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of such net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt during such Fiscal Year, determined in accordance with Treasury Regulations Section 1.704-2(i)(4).  Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto.  The items to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704‑2(i)(4) and 1.704-2(j)(2).  This Section 7.2(b) is intended to comply with the minimum gain chargeback requirements in Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith. 

(c)                Qualified Income Offset.  In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations Section 1.704‑1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, such Member’s Adjusted Capital Account Deficit as quickly as possible; provided  that an allocation pursuant to this Section 7.2(c) shall be made only if and to the extent that the Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article 7 have been tentatively made as if this Section 7.2(c) were not in the Agreement.  This Section 7.2(c) is intended to comply with the “qualified income offset” requirement set forth in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(3) and shall be interpreted consistently therewith.

(d)               Gross Income Allocation.  In the event any Member has a deficit Capital Account at the end of any Fiscal Year that is in excess of the sum of (i) the amount such Member is obligated to restore, if any, pursuant to any provision of this Agreement, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as
possible; provided  that an allocation pursuant to this Section 7.2(d) shall be made only if and to the extent that a Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article 7 have been tentatively made as if Section 7.2(c) and this Section 7.2(d) were not in this Agreement.

(e)                Nonrecourse Deductions.  Nonrecourse Deductions for any Fiscal Year or other taxable period shall be specially allocated to the Members pro rata in accordance with their respective Percentage Interests.

(f)                Member Nonrecourse Deductions.  Member Nonrecourse Deductions for any Fiscal Year or other taxable period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations Section 1.704‑2(i)(1).

(g)               Section 754 Adjustments.  To the extent an adjustment to the adjusted basis for federal income tax purposes of any Company asset pursuant to Section 734(b) or Section 743(b) of the Code is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member’s Membership Interest, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Members pro rata in accordance with their respective Percentage Interests in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was made in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

Section 7.3 Certain Allocations.  The allocations set forth in Section 7.2 (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations.  It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 7.3.  Therefore, notwithstanding any other provision of this Article 7 (other than the Regulatory Allocations), the Company shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting special allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Company

Section 7.5 Other Allocation Rules. (a) The allocation provisions set forth in this Article 7 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Treasury Regulations.

(b)               For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Tax Matters Member using any permissible method under Section 706 of the Code and the Treasury Regulations promulgated thereunder.

(c)                If the Percentage Interest of any one or more Members changes during the Fiscal Year, all Company items of income, gain, loss, deduction and credit shall be allocated among the Members for such Fiscal Year in a reasonable manner, as determined by the Tax Matters Member, that takes into account the varying Percentage Interests of the Members in the Company during such Fiscal Year in accordance with Section 706 of the Code.

(d)               The Members are aware of the income tax consequences of the allocations made by this Agreement and hereby agree to be bound by the provisions of this Agreement in reporting their shares of Company income and loss for income tax purposes.

(e)                For the avoidance of doubt, for purposes of determining a Member’s proportionate share of the “excess nonrecourse liabilities” of the Company (within the meaning of Treasury Regulations Section 1.752-3(a)(3)), the Members’ interests in Company profits are in proportion to their Percentage Interests.

Section 7.6 Tax Allocations.  (a)        In accordance with Section 704(c) of the Code and the Treasury Regulations promulgated thereunder, each item of income, gain, loss, and deduction with respect to the CME Group Contributed Assets and the MH Contributed Assets, shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property for federal income tax purposes and its initial Carrying Value using the remedial allocation method pursuant to Treasury Regulations Section 1.704-3(d).

the adjusted basis of such property for federal income tax purposes and its initial Carrying Value using the remedial allocation method pursuant to Treasury Regulations Section 1.704-3(d).

(b)               In the event the Carrying Value of any Company asset is adjusted pursuant to clause (a) of the definition of “Carrying Value,” subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Carrying Value using any method permitted under Treasury Regulations Section 1.704-3 as determined by the Tax Matters Member .

(c)                Subject to the provisions of Section 7.6(a) and Section 7.6(b), items of income, gain, loss, deduction and credit to be allocated for income tax purposes shall, for each taxable period, be allocated among the Members in the same manner and in the same proportion as such items are allocated among the Members’ respective Capital Accounts.

(d)               Allocations pursuant to this Section 7.6 are solely for income tax purposes, and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

Article 8

DISTRIBUTIONS

Section 8.1            Distributions; Other Distributions; Withholding.

(a)                Mandatory Distributions. 

                                                     (i)            Subject to Section 8.1(c), the Company shall distribute to the Members, on a pro rata basis in accordance with each Member’s Percentage Interest, within 60 days after the end of each Fiscal Quarter, 100% of all Free Cash Flow as of and for the end of such Fiscal Quarter. 

                                                   (ii)            On an annual basis, the Company will prepare a statement of cash flows in accordance with GAAP to compute cash flows from operations in the prior Fiscal Year in accordance with GAAP.  Subject to Section 8.1(c), to the extent that the amount of cash flows from operations as set forth on such statement less the amounts identified in clauses (f) and (g)  of the definition of Free Cash Flow with respect to the four Fiscal Quarters of such prior Fiscal Year is greater than the amount of Free Cash Flow actually distributed pursuant to Section 8.1(a)(i) in respect of the four Fiscal Quarters of such prior Fiscal Year, the Company shall distribute to the Members, on a pro rata basis in accordance with each Member’s Percentage Interest, within 60 days after the preparation of such statement of cash flows, the amount of such excess unless otherwise mutually agreed in writing by the Parents. 

                                                 (iii)            Distributions pursuant to clauses (i) and (ii)  above are intended to qualify for the operating cash flow presumption of Treasury Regulations Section 1.707-4(b).

(b)               Other Distributions; Withholding.

                                                     (i)            Except as specified in this Article 8 and Article 13, (A) the Company shall have no obligation to distribute any cash or other property of the Company to the Members and (B) subject to Section 5.3(f)(xvi), the Board of Directors may determine whether to distribute any cash or other property of the Company, when available, and the timing, kind and amount of any and all distributions; provided  that all distributions shall be made pro rata to all of the Members based on their respective Percentage Interests.

                                                   (ii)            The Company is authorized to withhold from any distributions otherwise payable to a Member under this Agreement any amounts required to be withheld from any such distribution under any applicable Law.  All amounts withheld with respect to a Member pursuant to the preceding sentence shall be treated as if such amounts were distributed to such Member pursuant to this Agreement. 

                                                 (iii)            Distributions in Kind.  No Member has any right to demand or receive property other than cash.  However, subject to  Section 5.3(f)(xvi), the Board of Directors may determine to make distributions, entirely or in part, in property of the Company other than cash.  Assets of the Company distributed in kind shall be valued as reasonably determined by a unanimous vote of all Directors, and, unless otherwise agreed in writing by each of the Members, distributed pro rata to all of the Members based on their respective Percentage Interests; provided  that, if the Company distributes the CME Group Contributed Assets or the MH Contributed Assets within seven years of the Contribution Date, the Company will distribute such assets to CME Group, CGIS and MH, as applicable, such as to avoid the recognition by CME Group, CGIS or MH, in any taxable year, of any income or gain for tax purposes that would be allocated to CME Group, Nets or MH under Section 704(c)(1)(A), Section 704(c)(1)(B) or Section 737 of the Code.

(c)                Limitations on Distributions.  Notwithstanding anything herein to the contrary, no distribution shall be made if such distribution would constitute a fraudulent conveyance or violate the Act or any other applicable Law. All distributions that, when made, would cause the recipient Member to recognize gain under Section 731(a) of the Code shall be considered advances against such Member’s allocable share of Profits for the Fiscal Year of the distribution.  To the extent it is determined at the end of such Fiscal Year that such recipient Member has not been allocated net taxable income or gain in such Fiscal Year sufficient to avoid recognition of gain under Section 731(a) of the Code, such Member shall contribute to the Company any such advances previously made to such Member in the amount by which such advances exceed such Member’s basis in its Membership Interest as of the last day of such Fiscal Year, taking into account any and all increases or decreases in the basis of such Member’s Membership Interest from the times of any such advances; provided, that any advances so recontributed shall be distributed to such Member as soon as practicable in the subsequent Fiscal Year.  In the event a Member (the “731 Member”) is required to recontribute any advances (the “Recontributed Advances”) with respect to a Fiscal Year pursuant to the preceding sentence, with respect to each other Member (any such other Member, a “Non-731 Member”), but solely to the extent that any distributions made to such Non-731 Member in such Fiscal Year are not treated as advances pursuant to the preceding sentence or pursuant to this sentence but with respect to a different 731 Member, an amount equal to the product of (i) the quotient obtained by dividing (x) the amount of such Recontributed Advances by (y) such 731 Member’s Percentage Interest and (ii) such Non-731 Member’s Percentage Interest, shall be treated as an advance and such Non-731 Member shall contribute to the Company the amount of such advance; provided, that any advances so recontributed shall be distributed to such Non-731 Member as soon as practicable in the subsequent Fiscal Year.  For the avoidance of doubt, the above provisions of this Section 8.1(c) are intended to ensure that all distributions, all advances and all recontributions are made pro rata to or by all of the Members based on their respective Percentage Interests.

(d)               Exculpation.  The Members hereby consent and agree pursuant to Section 18 502(b) of the Act that, except as provided herein or required by applicable Law, no Member shall have an obligation to return cash or other property paid or distributed to such Member.  For the avoidance of doubt, the preceding sentence shall not affect any rights that any Member (but not any Person not a party hereto) may have in respect of any distribution to any other Member in violation of the terms of this Agreement.

Article 9

TRANSFERS, PUT/CALL RIGHTS AND ADDITIONAL MEMBERS

Section 9.1 Restrictions on Transfers .  (a) Transfers by the CME Group Entities.  Neither CME Group nor any CME Group Member may Transfer any Membership Interest (or any portion thereof) without MH’s prior written consent, except that, subject to the other provisions of this Article 9, CME Group Members may Transfer (i) all or a portion of their Membership Interests to CME Group or any direct or indirect wholly owned Subsidiary of CME Group if such Subsidiary agrees in writing to be bound by the provisions of this Agreement applicable to CME Group Members and to re-transfer its Membership Interest to CME Group or a direct or indirect wholly owned Subsidiary of CME Group if the transferee ceases to be a direct or indirect wholly owned Subsidiary of CME Group other than as permitted by this Agreement (a “CME Group Permitted Transferee”), (ii) all of their Membership Interests pursuant to a MH Special Call in accordance with this Article 9, (iii) all or a portion of their Membership Interests pursuant to a CME Group Put in accordance with this Article 9, (iv) a portion of their Membership Interests pursuant to a Piggyback Registration in accordance with Sections 10.5, 10.7  and 10.8, (v) all or a portion of their Membership Interests pursuant to the CME Group Members’ Tag-Along Right in accordance with this Article 9, (vi) pursuant to MH’s Drag-Along Right in accordance with this Article 9 or (vii) subject to Section 5.3(f)(iv),  all or a portion of their Membership Interests pursuant to an initial public offering, sale, merger or consolidation of the Company.

(b)               Transfers by the MH Entities.  Until CME Group’s Parent Aggregate Percentage interest goes below the CME Group Threshold, neither MH nor any MH Member may Transfer any Membership Interest (or any portion thereof) without CME Group’s prior written consent, except that, subject to the other provisions of this Article 9, MH Members may Transfer (i) all or a portion of their Membership Interests to MH or any direct or indirect wholly owned Subsidiary of MH if such Subsidiary agrees in writing to be bound by the provisions of this Agreement applicable to MH Members and to re-transfer its Membership Interest to MH or a direct or indirect wholly owned Subsidiary of MH if the transferee ceases to be a direct or indirect wholly owned Subsidiary of MH other than as permitted by this Agreement (a “MH Permitted Transferee”), (ii) a portion of their Membership Interests pursuant to a Qualified IPO in accordance with Article 10, (iii) all of their Membership Interests pursuant to Section 9.1(c) or (iv) subject to Section 5.3(f)(iv),  all or a portion of their Membership Interests pursuant to an initial public offering, sale, merger or consolidation of the Company.  For the avoidance of doubt, when CME Group’s Parent Aggregate Percentage interest goes below the CME Group Threshold, the MH Entities shall not be required to comply with Sections 9.1(c) or 9.1(h), but the CME Group Members shall retain their Tag-Along Right under Section 9.1(d) and MH shall retain its Drag-Along Right under Section 9.1(e). 

(c)                Sale of the MH Members’ Membership Interests. 

                                                     (i)            ROFR / ROFO. 

(A)   Following the Blackout Period, if MH wishes to accept a bona fide, written offer from any Person or group of Persons (other than the Prohibited Transferee designated by CME Group or any controlled Affiliates of such Prohibited Transferee, any MH Entity (or any of its Affiliated Persons) or any Company Entity) (a “Third-Party Acquirer”) to purchase all of the MH Members’ Membership Interests or the Company as a whole (a “Third-Party Offer”), MH may, at any time, deliver to CME Group an offer (subject to MH’s compliance with its obligations, if any, under Section 9.1(h) for the nine months prior to such delivery) in accordance with Section 9.1(c)(i)(C)(1) (which offer shall for the avoidance of doubt be accompanied by the certificate contemplated by Section 9.1(c)(i)(C)(1)(y)) to sell to CME Group all of the MH Members’ Membership Interests for a purchase price equal to the price that the Third-Party Acquirer proposes to pay for the MH Members’ Membership Interests, payable in cash (a “ROFR Offer”), it being understood that (x) if such Third-Party Offer includes any non-cash consideration, the value thereof for purposes of determining the price shall be (I) in the case of securities listed on a national securities exchange, the volume weighted-average price thereof for the ten trading days preceding the date of the ROFR Offer multiplied by the number of such securities and (II) for any Illiquid Non-Cash Consideration, (a) the fair market value thereof (x) as determined in good faith by unanimous approval of the Board of Directors or (y) as determined by a single Specified Independent Appraiser engaged by CME Group and MH at MH’s expense (or if CME Group and MH are unable to engage a Specified Independent Appraiser within 10 days after a request by either of them, by the process specified in Section 9.5(b) for selecting a third Independent Appraiser in the context of a determination of FMV, mutatis mutandis (treating MH and CME Group as the “the first two Appraisers” for this purpose)) or (b) if no such determination by the Board of Directors is made and MH elects not to engage such an Independent Appraiser for this purpose, such Illiquid Non-Cash Consideration shall be valued for this purpose at zero (unless CME Group reasonably believes that such Illiquid Non-Cash Consideration has a negative value as a result of liabilities (contingent or otherwise) relating thereto to be transferred pursuant to such Third-Party Offer in which case such value must be so determined by a unanimous vote of the Board of Directors or by the Independent Appraiser) (the value of such Illiquid Non-Cash Consideration determined pursuant to this clause (II), the “ROFR Illiquid Non-Cash Consideration Value”), and (y) if such Third-Party Offer is for the Company as a whole, the amount that the Third-Party Acquirer proposes to pay for the MH Members’ Membership Interests shall be deemed to be the total price proposed multiplied by MH’s Parent Aggregate Percentage Interest; provided, however, that, except with respect to a Third-Party Offer from the Third-Party Acquirer that made a Qualified Unsolicited Offer, MH may not deliver a ROFR Offer within nine months after the end of the Sale Period in connection with a ROFO Offer or during any Negotiation Period (for the avoidance of doubt, without limiting the provisions of Section 9.1(c)(i)(C)(4)) or any Sale Period (for the avoidance of doubt, without limiting MH’s ability to make an offer during any Sale Period following a ROFO Offer at a price below the Threshold Price as contemplated by clause (A) of the first sentence of Section 9.1(c)(ii)). 

determined pursuant to this clause (II), the “ROFR Illiquid Non-Cash Consideration Value”), and (y) if such Third-Party Offer is for the Company as a whole, the amount that the Third-Party Acquirer proposes to pay for the MH Members’ Membership Interests shall be deemed to be the total price proposed multiplied by MH’s Parent Aggregate Percentage Interest; provided, however, that, except with respect to a Third-Party Offer from the Third-Party Acquirer that made a Qualified Unsolicited Offer, MH may not deliver a ROFR Offer within nine months after the end of the Sale Period in connection with a ROFO Offer or during any Negotiation Period (for the avoidance of doubt, without limiting the provisions of Section 9.1(c)(i)(C)(4)) or any Sale Period (for the avoidance of doubt, without limiting MH’s ability to make an offer during any Sale Period following a ROFO Offer at a price below the Threshold Price as contemplated by clause (A) of the first sentence of Section 9.1(c)(ii)). 

(B)  Following the Blackout Period, MH may, at any time, deliver to CME Group an offer (subject to MH’s compliance with its obligations under Section 9.1(h) for the nine months prior to such delivery (it being agreed that such compliance will for this purpose be determined disregarding the last sentence of Section 9.1(h)(i))) in accordance with Section 9.1(c)(i)(C)(1) (which offer shall for the avoidance of doubt be accompanied by the certificate contemplated by Section 9.1(c)(i)(C)(1)(x)) to sell to CME Group all of the MH Members’ Membership Interests at a specified price in cash (a “ROFO Offer”); provided, however, that MH may not deliver a ROFO Offer (1) within two (2) years after the end of the Sale Period in connection with a prior ROFO Offer; provided, further  however, that the foregoing two (2) year period shall be reduced to nine (9) months after the end of the Negotiation Period with respect to the prior ROFO Offer if (x) such prior ROFO Offer was not accepted by CME Group during the Negotiation Period in respect of such prior ROFO Offer and (y) either (I) at or prior to the end of the Negotiation Period MH notified CME Group in writing that there will be no Sale Period in respect of such ROFO Offer or (II) if such Negotiation Period was terminated as a result of the delivery by CME Group of a MH Sale Offer Rejection Notice, MH provides such notice within five (5) Business Days of such termination and the MH Entities had not engaged in any Solicitation between such termination and the delivery of such notice, which notice shall in the case of either clause (I) or (II)  irrevocably terminate the right that MH otherwise would have had under Section 9.1(c)(ii) to transfer its Membership Interests to a Third-Party Acquirer during the Sale Period in respect of such ROFO Offer or (2) during any Negotiation Period (for the avoidance of doubt, without limiting the provisions of Section 9.1(c)(i)(C)(4)) or any Sale Period (for the avoidance of doubt, without limiting MH’s ability to make an offer during any Sale Period following a ROFO Offer at a price below the Threshold Price as contemplated by clause (A) of the first sentence of Section 9.1(c)(ii)). 

(C)         MH Sale Offer Procedures. 

(1)               In the event MH elects to make a ROFO Offer or ROFR Offer (a “MH Sale Offer”), MH shall deliver to CME Group a written notice (a “Sale Notice”) containing the terms of such MH Sale Offer, including the price proposed (the “Offer Price”) and (x) in the case of a ROFO Offer, a proposed agreement pursuant to which MH would be prepared to sell the MH Members’ Membership Interests to CME Group and a certificate duly executed by an executive officer of MH, dated the date of the Sale Notice in respect of such ROFO Offer, stating that, to such executive officer’s knowledge, after reasonable inquiry, MH has fully complied with its obligations under Section 9.1(h) for the nine months prior to such ROFO Offer (it being agreed that, for purposes of this clause (x), the last sentence of Section 9.1(h)(i) shall be disregarded) and (y) in the case of a ROFR Offer, a copy of the Third-Party Offer, the proposed agreement pursuant to which MH would be prepared to sell the MH Members’ Membership Interests to CME Group (the terms and conditions of which shall be the same as those of the proposed agreement pursuant to which MH would be prepared to sell the MH Members’ Membership Interests to such Third-Party Acquirer, except for any non-substantive changes necessitated by the fact that CME Group rather than the Third-Party Acquirer would be the purchaser), the ROFR Illiquid Non-Cash Consideration Value, if applicable, and if the Sale Period with respect to a ROFO Offer ended within nine months prior to the date of the Sale Notice for such ROFR Offer, a certificate duly executed by an executive officer of MH, dated the date of the Sale Notice in respect of such ROFR Offer, stating that, to such officer’s knowledge, after reasonable inquiry, MH has fully complied with its obligations, under Section 9.1(h) for the nine months prior to such ROFR Offer (it being agreed that, for purposes of this clause (y), such certification shall include certification that MH has, to such officer’s knowledge, after reasonable inquiry, fully complied with the last sentence of Section 9.1(h)(i) during such nine-month period).

(2)               CME Group may accept the MH Sale Offer by delivering an irrevocable written notice of acceptance of the terms of the MH Sale Offer provided in the Sale Notice to MH within 60 days after receipt of the Sale Notice (such 60-day period, as it may be extended pursuant to Section 9.1(c)(i)(C)(4), the “Negotiation Period”); provided, that if CME Group delivers a written notice to MH at any time during such Negotiation Period stating that it (x) rejects the MH Sale Offer and (y) expressly waives its rights under this Section 9.1(c)(i)(C) (a “MH Sale Offer Rejection Notice”), such Negotiation Period shall terminate at such time).  For the avoidance of doubt, if CME Group does not so accept the MH Sale Offer during such Negotiation Period, such MH Sale Offer shall be deemed withdrawn.

(3)               If CME Group makes a counteroffer to a ROFO Offer, MH and CME Group shall during such Negotiation Period negotiate in good faith with respect to the terms and conditions of a Transfer of all of the MH Members’ Membership Interests to CME Group, it being understood that nothing shall require MH to propose or accept a price lower than the Offer Price or terms less favorable to MH than those in the Sale Notice.

(4)               If in the course of discussions, MH irrevocably offers CME Group in writing a price lower than the Offer Price or terms more favorable to CME Group than the terms set forth in the Sale Notice and holds such offer open until the end of the Negotiation Period (provided, that if such offer is made less than five (5) Business Days before the end of the Negotiation Period, the Negotiation Period shall be extended until five (5) Business Days after such offer is made), then the Sale Notice (including the Offer Price and other terms of such MH Sale Offer) shall be deemed amended to include such revised terms.

(5)               Following acceptance of a MH Sale Offer, the applicable MH Entities and the applicable CME Group Entities (or, if CME Group so elects to have the Company purchase the Membership Interests covered by the MH Sale Offer, the applicable Company Entities; provided that (x) such election may be made only if it does not adversely affect any MH Entity in any respect and (y) such election shall not relieve CME Group from any obligations in respect of the purchase of such Membership Interests) shall promptly enter into the definitive agreements providing for such Transfer, and CME Group and MH shall use efforts in a manner consistent with such documents to cause the closing of such Transfer to occur as soon as reasonably practicable. 

(6)               If CME Group intends to finance an acquisition hereunder pursuant to a ROFO Offer with debt financing from an unaffiliated third party, CME Group shall use commercially reasonable efforts to obtain such financing on commercially reasonable terms.  If, despite such efforts, such financing is not available on commercially reasonable terms as of the date that is the third Business Day after the date on which all other conditions to the closing of such ROFO Offer are (or are capable of being) satisfied (the “Originally Scheduled CME Group Purchase Closing Date”), CME Group may by notice to ▇▇ ▇▇▇▇▇ the closing until the earlier of the date on which such financing is obtained or six months after the Originally Scheduled CME Group Purchase Closing Date; provided that if such deferral is to a date later than twenty (20) Business Days following the date on which all required governmental approvals, if any, in respect of such Transfer shall have been received, such deferral shall only be effective if the applicable CME Group Entities deliver an irrevocable waiver of any condition to closing of such ROFO Offer as to the absence of a “material adverse change” or accuracy of representations as of any time after the date of such waiver.  During such deferral period, CME Group shall continue to use commercially reasonable efforts to obtain such financing on commercially reasonable terms.  If such acquisition is not consummated by the end of such deferral period, MH shall have all remedies at law or equity related to the failure to consummate the acquisition by the end of such deferral period.

(7)               At the closing of an accepted MH Sale Offer, all of the MH Members’ Membership Interests shall be sold to the applicable CME Group Entities (or Company Entities, if applicable) free and clear of all liens and encumbrances (other than those arising under this Agreement).

Entities (or Company Entities, if applicable) free and clear of all liens and encumbrances (other than those arising under this Agreement).

                                                   (ii)            Transfer to Third-Party Acquirer.  If CME Group fails to deliver an irrevocable written notice accepting the terms and conditions of the MH Sale Offer set forth in the Sale Notice during the Negotiation Period or the parties do not otherwise reach agreement during the Negotiation Period for the Transfer of all of the MH Members’ Membership Interests to CME Group (or the Company, if applicable), then the MH Members may, subject to the CME Group Members’ Tag-Along Right pursuant to Section 9.1(d), enter into an agreement during the six-month period following the end of the Negotiation Period (such six-month period, the “Sale Period”; provided  that if MH delivers a written notice to CME Group at any time during such Sale Period stating that it wishes to terminate such Sale Period, such Sale Period shall terminate at such time) to sell all of the MH Members’ Membership Interests (or to effect a Drag-Along Sale) to any Third-Party Acquirer at a price (the “Threshold Price”) not lower than (A) if a ROFO Offer was made, 95% of the Offer Price (or at a price that is lower than the Threshold Price but is not lower than 90% of the Offer Price if MH irrevocably offers CME Group such price and terms (except for any non-substantive changes necessitated by the fact that CME Group rather than the Third-Party Acquirer would be the purchaser) and holds such offer open for at least 30 days, which offer shall be subject to the procedures set forth in Section 9.1(c)(i)(C)(3) – (7)) or (B) if a ROFR Offer was made, the Offer Price and, in the case of each of clauses (A) and (B), on other terms not materially less favorable in the aggregate to MH than specified in the Sale Notice; provided  that in the case of a Drag-Along Sale, the Threshold Price shall be equal to the amount determined pursuant to clause (A) or (B), as applicable, divided by MH’s Parent Aggregate Percentage Interest; provided  further, however, that any such Transfer must be consummated within one year after entering into the definitive agreement providing for such Transfer, which period shall be extended up to an additional 180 days if such extension is required to obtain any required governmental approval necessary to consummate such Transfer and MH continues to use efforts in a manner consistent with the definitive agreement providing for such Transfer to obtain such approval.  It is understood that if the consideration for such Transfer to a Third-Party Acquirer includes any non-cash consideration, the value thereof for purposes of determining whether the price meets the Threshold Price shall be (1) in the case of securities listed on a national securities exchange, the volume weighted-average price thereof for the ten trading days preceding the date that the MH Members propose to enter into an agreement providing for such Transfer multiplied by the number of such securities and (2) for any Illiquid Non-Cash Consideration, (A) the fair market value thereof (x) as determined in good faith by unanimous approval of the Board of Directors or (y) as determined by a single Specified Independent Appraiser engaged by CME Group and MH at MH’s expense (or if CME Group and MH are unable to engage a Specified Independent Appraiser within 10 days after a request by either of them, by the process specified in Section 9.5(b) for selecting a third Independent Appraiser in the context of a determination of FMV, mutatis mutandis (treating MH and CME Group as the “the first two Appraisers” for this purpose)) or (B) if no such determination by the Board of Directors is made and MH elects not to engage such an Independent Appraiser for this purpose, such other property shall be valued for this purpose at zero (unless CME Group reasonably believes that such other property has a negative value as a result of liabilities (contingent or otherwise) relating thereto to be transferred to the seller pursuant to such Transfer to a Third-Party Acquirer in which case such value must be so determined by a unanimous vote of the Board of Directors or by the Independent Appraiser).  If an agreement is entered into with a Third-Party Acquirer pursuant to the foregoing provisions of this Section 9.1(c)(ii) and another Third-Party Acquirer makes an offer that, under the “fiduciary out” included in such agreement, may be accepted by the MH Entities, MH may (after making a ROFR Offer in respect thereof pursuant to Section 9.1(c)(i)(A)) enter into an agreement to sell all of the MH Members’ Membership Interests (or to effect a Drag-Along Sale) to such Third-Party Acquirer (subject to the applicable provisions of this Agreement governing ROFR Offers and Transfers to Third-Party Acquirers following ▇▇▇▇ ▇▇▇▇▇▇).

(▇)               ▇▇▇-▇▇▇▇▇ Right. 

                                                     (i)            If, subject to compliance with the terms of this Agreement, the MH Members intend to dispose of 5% or more of the MH Members’ Membership Interests in one or more related transactions to one or more Third-Party Acquirers), prior to or concurrently with entering into definitive agreements with the Third-Party Acquirer providing for such Transfer, MH shall deliver a written notice (a “Tag-Along Notice”) to the CME Group Members indicating the percentage of the MH Members’ Membership Interests proposed to be Transferred (the “Tag-Along Percentage”), the maximum (if any) Percentage Interest that the Third-Party Acquirer indicated it is willing to acquire (the “Maximum Acquired Percentage”), the proposed consideration, including, if the consideration for such Transfer includes Illiquid Non-Cash Consideration, a description thereof, including the fair market value thereof determined in the manner provided in clause (2)(A) of the second-to-last sentence of Section 9.1(c)(ii) (it being understood that if such fair market value had been determined pursuant to such clause (2)(A) for purposes of determining whether the Threshold Price was met, the amount so determined shall be used for this purpose) (the “Tag-Along Illiquid Non-Cash Consideration Value”), and, in reasonable detail, the other material terms and conditions of the proposed Transfer, including the identity of the proposed Third-Party Acquirer.  For the avoidance of doubt, (a) the CME Group Members’ right to participate in any Qualified IPO shall be governed by Sections 10.5, 10.7  and 10.8  rather than by this Section 9.1(d) and (b) the procedures in this Section 9.1(d) shall not apply to transactions of the type described on Schedule 9.4(c). 

                                                   (ii)            Each CME Group Member may, subject to the other terms of this Section 9.1(d), elect to sell in the proposed Transfer up to the Tag-Along Percentage of such CME Group Member’s Membership Interests on the terms and conditions specified in the Tag-Along Notice (the “Tag-Along Right”); provided  that, if the exercise of the CME Group Members’ Tag-Along Right would result in the Third-Party Acquirer acquiring a Membership Interest with an associated Percentage Interest exceeding the Maximum Acquired Percentage, the percentage of the Membership Interests of each of the MH Members and each of the CME Group Members to be Transferred shall be proportionately reduced.

                                                 (iii)            Each CME Group Member may exercise its Tag-Along Right by delivering an irrevocable written notice of its election to do so (the “Tag-Along Acceptance Notice”) to MH and the Third-Party Acquirer within 20 days after the delivery of the Tag-Along Notice; provided  that, if there is a change in the price or other material change in the terms or conditions of the proposed Transfer to the Third-Party Acquirer, MH shall deliver to the CME Group Members a revised Tag-Along Notice indicating such revised price and/or terms and conditions (which, for the avoidance of doubt, must comply with the Threshold Price and other requirements of  Section 9.1(c)(ii)), and each of the CME Group Members shall have 20 additional days after the CME Group Members’ receipt of the revised Tag-Along Notice to indicate whether it elects to exercise its Tag-Along Right.  If any CME Group Member elects to exercise its Tag-Along Right in accordance with this Section 9.1(d), the applicable MH Members shall cause the Third-Party Acquirer to enter into definitive agreements with such CME Group Member providing for the Transfer.  Such agreements (A) shall provide that, upon the consummation of the Transfer by the CME Group Members participating therein, each such CME Group Member will receive a percentage of the aggregate consideration paid by the Third-Party Acquirer to the CME Group Members and the MH Members participating therein equal to the percentage of the total Percentage Interest Transferred to such Third-Party Acquirer that is Transferred by such CME Group Member and no other direct or indirect consideration, benefit, fee or other amount shall be paid by or on behalf of such Third-Party Acquirer to the MH Entities in relation to such Transfer; provided  that if the consideration paid by the Third-Party Acquirer to the MH Members participating therein includes Illiquid Non-Cash Consideration, upon the written election of such CME Group Member in the Tag-Along Acceptance Notice, such CME Group Member shall receive, in lieu of any Illiquid Non-Cash Consideration, an amount of cash equal to (1) the Tag-Along Illiquid Non-Cash Consideration Value multiplied by (2) a fraction whose numerator is the Percentage Interest associated with the Membership Interests (or portions thereof) Transferred by such CME Group Member and whose denominator is the aggregate Percentage Interest associated with the Membership Interests (or portions thereof) Transferred by the MH Members, (B) shall provide that each of the CME Group Members and the MH Members participating in the Transfer shall be obligated to join severally on a pro rata basis in any indemnification or other obligations that the participating MH Members agree to provide or undertake in connection with such Transfer; provided  that MH shall use commercially reasonable efforts to procure that CME Group Members shall not (1) be required to make any representations or warranties in connection with such Transfer other than representations and warranties concerning title to their Membership Interests (or portions thereof) being Transferred free and clear of any encumbrances (other than those set forth in this Agreement), their valid organization, and their authority, power and right to enter into any agreement with respect to and to consummate the Transfer of their Membership Interest (or portions thereof) without contravention of any Law or conflict with their constitutional documents or (2) be responsible or have any indemnification or other obligation for: (x) the fraud, gross negligence or willful misconduct of the MH Members; (y) any indemnification obligations or liabilities resulting from any breach of any representation or warranty made by the MH Members with respect to matters of the type set forth in clause (1) of the proviso to clause (B) above with respect to the MH Members or their Membership Interests (or portions thereof); or (z) any breach of any covenant or agreement required to be performed by the MH Members and (C) shall otherwise provide for the Transfer of the CME Group Members’ Membership Interests (or portions thereof) to be on the same terms and conditions as the terms and conditions of the Transfer of MH Members’ Membership Interests (or portions thereof) to the extent applicable.

                                                 (iv)            If after delivering the Tag-Along Notice to the CME Group Members, MH decides not to proceed with the proposed Transfer, any elections made by the CME Group Members shall be deemed rescinded and shall be of no legal force or effect, and the CME Group Members’ Tag-Along Right with respect to such Tag-Along Notice shall terminate.

(e)                Drag-Along Right. 

                                                     (i)            In connection with a proposed disposition of all of the MH Members’ Membership Interests to a Third-Party Acquirer in accordance with the terms of this Agreement, MH may deliver at any time within the Sale Period a written notice (a “Drag-Along Notice”) electing (the “Drag-Along Right”) to require a Transfer of all Membership Interests, including those of the CME Group Members and any other Members (a “Drag-Along Sale”) (it being understood that a Drag-Along Sale may be effected by means of a sale of all Membership Interests, including those of the CME Group Members and any other Members, a merger, consolidation or sale of all or substantially all of the assets of the Company or other business combination involving the Company) on the terms and conditions specified in the Drag-Along Notice, including, if the consideration for such Transfer includes Illiquid Non-Cash Consideration, a description thereof, including the fair market value thereof determined in the manner provided in clause (2)(A) of the second-to-last sentence of Section 9.1(c)(ii) (it being understood that if such fair market value had been determined pursuant to such clause (2)(A) for purposes of determining whether the Threshold Price was met, the amount so determined shall be used for this purpose) (the “Drag-Along Illiquid Non-Cash Consideration Value”).  For the avoidance of doubt, (x) the procedures in this Section 9.1(e) shall not apply to transactions of the type described on Schedule 9.4(c) and (y) any sale of all or substantially all of the assets of the Company or any merger or consolidation of the Company must comply with the provisions of this Section 9.1(e). 

                                                   (ii)            If MH elects to exercise its Drag-Along Right, the MH Members may enter into definitive agreements providing for the Drag-Along Sale.  Such agreements (A) shall provide that, upon the consummation of the Drag-Along Sale, each of the CME Group Members and the MH Members participating therein will receive a percentage of the consideration paid by the Third-Party Acquirer equal to such Member’s Percentage Interest and no other direct or indirect consideration, benefit, fee or other amount shall be paid by or on behalf of such Third-Party Acquirer to the MH Entities in relation to such Transfer; provided  that if the consideration paid by the Third-Party Acquirer to the MH Members participating therein includes Illiquid Non-Cash Consideration, upon the written election of such CME Group Member made within 20 days after the delivery of such Drag-Along Notice, such CME Group Member shall receive, in lieu of any Illiquid Non-Cash Consideration otherwise payable to such CME Group Member, an amount of cash equal to (1) the Drag-Along Illiquid Non-Cash Consideration Value multiplied by (2) a fraction whose numerator is such CME Group Member’s Percentage Interest and whose denominator is the aggregate Percentage Interest of the MH Members, (B) shall provide that each of the CME Group Members and the MH Members participating therein shall be obligated to join severally on a pro rata basis in any indemnification or other obligations that the participating MH Members agree to provide or undertake in connection with such Drag-Along Sale; provided  that (I) the CME Group Members shall not (1) be required to make any representations or warranties in connection with such Transfer other than representations and warranties concerning title to their Membership Interests (or portions thereof) being Transferred free and clear of any encumbrances (other than those set forth in this Agreement), their valid organization, and their authority, power and right to enter into any agreement with respect to and to consummate the Transfer of their Membership Interest (or portions thereof) without contravention of any Law or conflict with their constitutional documents or (2) be responsible or have any indemnification or other obligation for (x) the fraud, gross negligence or willful misconduct of the MH Members or any other Member, (y) any indemnification obligations or liabilities resulting from any breach of any representation or warranty made by the MH Members or any other Member with respect to matters of the type set forth in clause (1) of the proviso to clause (B) above with respect to the MH Members or their Membership Interests (or portions thereof); or (z) any breach of any covenant or agreement required to be performed by the MH Members or any other Member and (II) the maximum amount of all obligations and liabilities for which the CME Group Members shall be held responsible in connection with such Transfer shall not exceed the proceeds received by the CME Group Members in such Transfer and (C) shall otherwise provide for the Transfer of the MH Members’ Membership Interests and the CME Group Members’ Membership Interests to be on the same terms and conditions to the extent applicable.  The CME Group Members and any other Members shall enter into such documents and take such actions, consistent with the foregoing, as MH may reasonably request to implement the foregoing.

(f)                Transfers by Other Members.  No Member that is not a MH Member or a CME Group Member may Transfer any Membership Interest (or any portion thereof) without the prior written consent of all of the other Members.

(g)               Costs and Expenses.  Subject to the last sentence of this Section 9.1(g), any Member who Transfers or proposes to Transfer any Membership Interest (or any portion thereof) shall (i) except to the extent agreed to by the parties hereto in any definitive documentation relating to such Transfer, be responsible for the expenses incurred by it in connection with such Transfer, whether or not consummated and (ii) be obligated to reimburse the Company for all reasonable expenses (including reasonable attorney’s fees and expenses) incurred by or on behalf of the Company in connection with such Transfer or proposed Transfer, whether or not consummated, of such Member’s Membership Interest (or portion thereof) (and, to the extent expenses are incurred by the Company in connection with a Transfer by both the MH Members and the CME Group Members, the Members shall reimburse the Company on a pro rata basis based on their respective Membership Interests (or potions thereof) Transferred, provided  that, for the avoidance of doubt, the CME Group Members shall not have any liability for any expenses incurred by any MH Members in any circumstances and the MH Members shall not have any liability for any expenses incurred by any CME Group Members in any circumstances.  If CME Group delivers an FMV Determination Request pursuant to Section 9.3(a) but does not deliver a CME Group Regular Put Notice within the 15 Business Day period following such determination of FMV, CME Group shall be responsible for the reasonable and documented out-of-pocket expenses incurred by MH and the Company in the determination of FMV. 

(h)               Solicitation.   

                                                     (i)            Subject to the last sentence of this Section 9.1(h)(i), during any Non-Solicitation Period, the applicable Parent shall not, and shall cause its other Parent Entities not to, directly or indirectly, through any Affiliate, representative or otherwise, engage in any Solicitation.  “Non-Solicitation Period” shall mean (A) in the case of the MH Entities, the nine months preceding the delivery of a Sale Notice with respect to a ROFO Offer, (B) in the case of the MH Entities, the nine months following the Sale Period for a ROFO Offer (unless an agreement is entered into pursuant to Section 9.1(c)(ii) during such Sale Period (it being agreed that any such Solicitation may only be with the Third-Party Acquirer that entered into such agreement and, to the extent permitted by any “fiduciary out” included in such agreement, any other Third-Party Acquirer) and (C) in the case of all Parent Entities, during a Negotiation Period in respect of a MH Sale Offer.  For purposes of this Article 9, “Solicit” or “Solicitation” shall mean to (i) solicit or knowingly encourage the submission of any proposal or offer for the acquisition of any Membership Interests (or portions thereof), the Company as a whole or all or a substantial portion of the consolidated assets of the Company, other than from any MH Entity or CME Group Entity (an “Acquisition Proposal”), (ii) provide any confidential information with respect to the Company to any Person other than any MH Entity or CME Group Entity or any of their respective advisors or representatives for the purpose of enabling such Person to determine whether to make, or to actually make, an Acquisition Proposal, (iii) participate in any negotiations with any Person regarding, or otherwise knowingly cooperate in any way with, or knowingly assist or knowingly participate in, or knowingly facilitate or knowingly encourage any Person to initiate or pursue, an Acquisition Proposal other than with the MH Entities and their respective advisors and representatives and the CME Group Entities and their respective advisors and representatives, or (iv) enter into any agreement with any Person other than any MH Entity or CME Group Entity or any of their respective advisors or representatives (including any letter of intent, agreement in principle, memorandum of understanding, confidentiality agreement or expense reimbursement agreement) for the purpose of enabling such Person to determine whether to make, or to actually make, an Acquisition Proposal.  For the avoidance of doubt, neither (x) any communication, provision of information or agreement relating to an actual or potential Change of Control or other transaction at the Parent level nor (y) any ordinary course discussions regarding the possibility of Persons becoming Additional Members shall constitute a Solicitation (it being understood, for the avoidance of doubt, that clause (y) shall not permit any discussion of the price or other terms of such an investment or the provision of, or access             Notwithstanding the foregoing, if MH receives a bona fide written inquiry, offer or proposal from a Third-Party Acquirer that was not Solicited by any MH Entity or any of their respective representatives and that is, or may reasonably be expected to result in, an Acquisition Proposal, the MH Entities or any of their respective representatives may engage in Solicitation with such Third-Party Acquirer if, after receiving advice of counsel, MH’s board of directors (or the executive committee thereof) determines that the failure to take such action would be reasonably likely to violate their fiduciary duties (such an inquiry, offer or proposal, a “Qualified Unsolicited Offer”); provided  that prior to commencing any such Solicitation, MH shall deliver a written notice to CME Group setting forth the details of such Qualified Unsolicited Offer if required by Section 9.1(h)(ii) and stating that MH’s board of directors (or the executive committee thereof) has made the determination with respect to such Qualified Unsolicited Offer contemplated by this sentence, it being understood that if MH receives a Third-Party Offer from such Third-Party Acquirer that it wishes to accept, Section 9.1(c)(i)(A) shall apply.

                                                   (ii)            During any Non-Solicitation Period referenced in clause (B) or (C)  of the second sentence of Section 9.1(h)(i), each Parent subject to restrictions on Solicitations during such period, shall promptly, but in any event within two (2) days of its occurrence, notify the other Parent if any Acquisition Proposal is made and will provide to such other Parent the identity of such Person and the nature of the Acquisition Proposal, unless doing so could lead to the withdrawal or modification of such Acquisition Proposal pursuant to the express terms of such Acquisition Proposal (it being understood that this exception shall not limit MH’s obligation to provide all of the information required to be provided in connection with a ROFR Offer as set forth in Section 9.1(c)(i)(A) if a ROFR Offer related to such Acquisition Proposal is made).

                                                 (iii)            Notwithstanding anything in this Agreement to the contrary, no Person shall have any monetary liability for any violation of this Section 9.1(h). 

(i)                 Prohibited Transferees.  Notwithstanding anything herein to the contrary, no member of a Parent Member Group may Transfer its Membership Interest to a Prohibited Transferee designated by the other Parent (and, for the avoidance of doubt, no sale of all or substantially all of the assets of the Company may be made to, and no merger or consolidation shall be effected with, the Prohibited Transferee designated by CME Group) or any of such Prohibited Transferee’s controlled Affiliates without the prior written consent of such other Parent; provided, that this provision shall terminate when CME Group’s Parent Aggregate Percentage Interest goes below the Lower Threshold. 

Section 9.2   MH Special Call.  During the 15 Business Day period following a Change of Control of CME Group in which the Acquirer is a MH Competitor, MH shall have the right to deliver to CME Group a written notice requesting determination of FMV in accordance with Section 9.5 (an “FMV Determination Request”), in which case FMV shall be determined in accordance with Section 9.5.  For a period of 15 Business Days following determination of FMV pursuant to such FMV Determination Request, MH shall have the right (but not the obligation) to deliver to CME Group a written notice (a “MH Call Notice”) stating that MH elects to purchase all of the CME Group Members’ Membership Interests for a purchase price equal to FMV multiplied by CME Group’s Parent Aggregate Percentage Interest, payable in cash, and, upon delivery of such MH Call Notice, the CME Group Members shall be required to sell to MH, or such Affiliate(s) of MH as may be designated by MH, such Membership Interests at such price in accordance with Section 9.4 (such purchase and sale, the “MH Special Call”).  “MH Competitors” shall mean the Persons listed on Schedule 9.2 hereto (it being agreed that MH may update such list once during January in any calendar year to include any major competitor of MH in the media, financial services or, for so long as MH retains its MH Education division, publishing business as reasonably determined by MH, provided that in no event shall more than three Persons be listed on such schedule at any time).

(b)               CME Group Special Put.  During the 15 Business Day period following (i) a Change of Control of MH in which the Acquirer is a CME Group Competitor or (ii) an Unqualified Party Approval Termination, CME Group shall have the right to deliver to MH an FMV Determination Request, in which case FMV shall be determined in accordance with Section 9.5.  For a period of 15 Business Days following determination of FMV pursuant to such FMV Determination Request, CME Group shall have the right (but not the obligation) to deliver to MH a written notice (a “CME Group Special Put Notice”, and any CME Group Regular Put Notice or CME Group Special Put Notice, a “CME Group Put Notice”) stating that CME Group elects to sell to MH sell all (but not less than all) of the CME Group Members’ Membership Interests for a purchase price equal to FMV multiplied by CME Group’s Parent Aggregate Percentage Interest, payable in cash, and, upon delivery of such CME Group Special Put Notice, MH, or such Affiliate(s) of MH as may be designated by MH, shall be required to purchase such Membership Interests at such price in accordance with Section 9.4 (such purchase and sale, a “CME Group Special Put”, and any CME Group Special Put or CME Group Regular Put, a “CME Group Put”).  “CME Group Competitors” shall mean the Persons listed on Schedule 9.3 hereto (it being agreed that CME Group may update such list once during January in any calendar year to include any major competitor of CME Group in the business of owning and operating an exchange or trading marketplace or facility, including the operation of a clearing house as reasonably determined by CME Group, provided  that in no event shall more than three Persons be listed on such schedule at any time).

Section 9.4 Put/Call Transactions. (a) Once delivered, a MH Special Call Notice or CME Group Put Notice shall be irrevocable except as otherwise mutually agreed in writing by the Parents.  Notwithstanding anything herein to the contrary, any or all of the CME Group Members’ Membership Interests (or portions thereof) covered by a MH Special Call or CME Group Put with respect to all of the CME Group Members’ Membership Interests may, at MH’s election, be redeemed or purchased by a Company Entity rather than being purchased by a MH Entity; provided  that (x) such election may be made only if it does not adversely affect any CME Group Entity in any respect and (y) such election shall not relieve MH from any obligations in respect of the purchase of such Membership Interests).  The closing of any MH Special Call or CME Group Put shall, subject to Section 9.4(b), take place on a date to be specified by the Parents, which shall be no later than the later of (i) the first Business Day that is on or after the date that is one month after the final determination of FMV in accordance with Section 9.5 and (ii) the third Business Day after the date on which all required governmental approvals for the Transfer, if any, shall have been received, or such other date as may be mutually agreed in writing by the Parents (the “Put/Call Closing Date”).  The Parents shall act in good faith to cause such closing to occur on the date determined by the preceding sentence, including using their reasonable best efforts to obtain any required governmental approvals as promptly as reasonably practicable.  At the closing of the MH Special Call or CME Group Put, the CME Group Members shall sell, and MH, or such Affiliate(s) of MH as may be designated by MH, shall purchase, the Membership Interests (or portions thereof) subject to the MH Special Call or CME Group Put free and clear of all liens and encumbrances (other than those arising under this Agreement).

subject to the MH Special Call or CME Group Put free and clear of all liens and encumbrances (other than those arising under this Agreement).

(b)               If MH intends to finance an acquisition hereunder with debt financing from an unaffiliated third party, MH shall use commercially reasonable efforts to obtain such financing by the Put/Call Closing Date. If, despite such efforts, such financing is not available on commercially reasonable terms as of the date that would, but for this Section 9.4(b), be the Put/Call Closing Date (the “Originally Scheduled Put/Call Closing Date”), MH may by notice to CME Group defer the Put/Call Closing Date until the earlier of the date on which such financing is obtained or six (6) months after the Originally Scheduled Put/Call Closing Date.  During such deferral period, MH shall continue to use commercially reasonable efforts to obtain such financing on commercially reasonable terms.  If such acquisition is not consummated by the end of such deferral period, CME Group shall have all remedies at law or equity related to the failure to consummate the acquisition by the end of such deferral period.

(c)                Notwithstanding anything in this Agreement to the contrary (including Section  9.1(a)  and 9.1(b)), (i) MH will have the right at any time (even during the Blackout Period) to effect a distribution or exchange offer to MH’s stockholders of 100% of the equity interests (except for any equity interests sold in connection with an initial public offering as a precursor to such distribution or exchange offer (it being understood that such an initial offering shall be permitted and if such an initial public offering is consummated, such distribution or exchange offer must also be consummated)) of any Subsidiary of MH that (x) directly or indirectly holds 100% of the equity interests in all of the MH Members or (y) is a MH Member and directly or indirectly holds 100% of the equity interests in all of the other MH Members (if any) subject to the terms set forth in Part I of Schedule 9.4(c) (as may be more fully developed and documented by the parties prior to the Closing pursuant to Section 5.14 of the Contribution Agreement) (it being understood that any such Subsidiary shall agree to be bound by the terms of this Agreement as if such entity were MH), (ii) nothing in this Agreement shall restrict any Change of Control of a Parent (for the avoidance of doubt, other than the provisions hereof in respect of a CME Group Special Put or MH Special Call, to the extent applicable) and (iii) MH will have the right at any time (even during the Blackout Period) to effect any distribution or disposition of (x) any equity interest in a Person that is not a Member and does not directly or indirectly hold any equity interests in a Member or (y) any assets of any Member (other than Membership Interests) or of any such Person subject to the terms set forth in Part II of Schedule 9.4(c) (as may be more fully developed and documented by the parties prior to the Closing pursuant to Section 5.14 of the Contribution Agreement).    

Section 9.5  Determination of FMV.  FMV shall be determined by the following process:

(a)                No later than the tenth day after the delivery of an FMV Determination Request by MH pursuant to Section 9.2 or by CME Group pursuant to Section 9.3, MH and CME Group each shall engage one Appraiser for purposes of determining FMV.  Other than as provided in Section 9.1(g), all fees and expenses of each such Appraiser shall be the responsibility of the Parent that engaged such Appraiser.  Each such Appraiser shall determine FMV in good faith in accordance with the definition thereof and deliver its calculation of FMV not later than the first Business Day that is at least 45 days after the date of delivery of such FMV Determination Request; provided, that both appraisers shall deliver their calculations on the same date and FMV shall be determined as of such date (the “FMV Determination Date”).  If the higher of the two calculations of FMV submitted by the two Appraisers is not more than 105% of the lower calculation, then the FMV shall be deemed to be the average of the FMV calculations of the two Appraisers.

(b)               If the higher of the two calculations of FMV is more than 105% of the lower calculation, then the two Appraisers shall jointly select a third Appraiser who is independent of, and not affiliated with, the first two Appraisers, and who is not affiliated with, and who has not provided any significant services within the two years preceding the date of the FMV Determination Request to, any Parent Entity (an “Independent Appraiser”), to determine FMV.  If the two Appraisers are unable to agree upon a third Appraiser by the tenth day immediately following the date on which they have both delivered a calculation of FMV (the “Initial Calculation Date”), the third Appraiser shall be selected as follows:  each of the first two Appraisers will suggest three potential third Appraisers, each of whom shall be an Independent Appraiser, for a total of six.  Each of the first two Appraisers shall be entitled to veto two of the other Appraiser’s three suggested Appraisers.  The third Appraiser will then be chosen from the remaining two suggested names by lot or other similar fair random process.  The third Appraiser shall be selected no later than the 15th day immediately following the Initial Calculation Date and engaged pursuant to a customary engagement letter no later than the 20th day after the Initial Calculation Date.  Other than as provided in Section 9.1(g), all fees and expenses of the third Appraiser shall be shared equally by the MH Members, on the one hand, and the CME Group Members, on the other hand.

(c)                The third Appraiser shall determine FMV as of the FMV Determination Date in good faith in accordance with the definition thereof and submit its calculation of FMV no later than the 30th day immediately following its engagement.

(d)               The final FMV shall be the average of the two of three FMV calculations that are closest in amount.

Section 9.6  Additional Members.  (a)  In connection with a Transfer of any Membership Interest (or portion thereof), each MH Permitted Transferee, CME Group Permitted Transferee or other Person who receives a Membership Interest in accordance with the terms of this Agreement, in each case who is not already a Member, shall execute and deliver a counterpart of this Agreement and agree in writing to be bound by the terms and conditions of this Agreement that were applicable to the Transferring Member, and shall thereupon be admitted as an additional Member of the Company (an “Additional Member”).  The ultimate parent of any Additional Member that becomes such as a result of a Transfer of all of the Membership Interests held by a Parent Member Group shall be entitled to, upon the assumption by the ultimate parent of such Additional Member of all of the rights and obligations of the applicable Parent hereunder, all of the rights, and be subject to all of the obligations or restrictions, hereunder applicable to the Parent of the Transferring Parent Member Group in its capacity as such (including the right to appoint Directors pursuant to Section 5.1(b)), and it shall be a condition to any such Transfer that the ultimate parent of such Additional Member expressly assumes all such rights and obligations.  Except as provided in the preceding sentence, no Additional Member shall be entitled to any of the rights, or be subject to

(c)                Each Additional Member shall be named as a Member on Schedule 4.1 hereto.  Unless and until admitted as an Additional Member, a transferee of any Membership Interest (or portion thereof), or a recipient of any newly issued Membership Interest (or portion thereof), shall have no powers, rights or privileges of a Member of the Company.

Section 9.7 Termination of Member or Parent Status. (a) Any Member that Transfers in accordance with this Agreement all of its, and owns no, Membership Interest shall immediately cease to be a Member and shall no longer be a party hereto or have any rights or obligations hereunder and Schedule 4.1 hereto shall be updated to eliminate such Person therefrom; provided  that such Person (i) shall not thereby be relieved of any liability for breach of this Agreement prior to such time, (ii) shall retain any rights with respect to a breach of this Agreement by any other Person prior to such time (iii) shall retain any rights to indemnification and exculpation under Section 5.9, Section 5.10 and Section 10.7 with respect to any matter that occurred prior to such time, (iv) shall retain rights under Section 6.2(b) and Section 6.5(a) and (b) with respect to periods during which such Person was a Member (provided that such Member shall have such rights under Section 6.5(a) solely to the extent required (x) to comply with applicable Law or (y) in connection with compliance with financial reporting obligations under applicable Law) and (v) shall remain subject to Section 6.6 and Sections 14.9 through 14.12.   

(b)               In the event that all of the members of a Parent Member Group Transfer in accordance with this Agreement all of their, and own no, Membership Interests, such Parent shall immediately cease to be a Parent and shall no longer be a party hereto or have any rights or obligations hereunder and Schedule 4.1 hereto shall be updated to eliminate such Person therefrom; provided  that such Person (i) shall not thereby be relieved of any liability for breach of this Agreement prior to such time, (ii) shall retain any rights with respect to a breach of this Agreement by any other Person prior to such time, (iii) shall retain any rights to indemnification and exculpation under Section 5.9, Section 5.10 and Section 10.7 with respect to any matter that occurred prior to such time, (iv) shall retain rights under Section 6.2(b) and Section 6.5(a) and (b) with respect to periods during which such Person was a Parent (provided that such Parent shall have such rights under Section 6.5(a) solely to the extent required (x) to comply with applicable Law or (y) in connection with compliance with financial reporting obligations under applicable Law) and (v) shall remain subject to Section 6.6 and Sections 14.9 through 14.12.   

Section 9.8   Additional Restrictions on Transfer.  Notwithstanding anything herein to the contrary, no Member shall Transfer any Membership Interest (or any portion thereof) if such Transfer would cause the Company to be treated as an association taxable as a corporation (other than in connection with an initial public offering in accordance with Article 10) or as a publicly traded partnership for purposes of Section 7704 of the Code.

Transfer would cause the Company to be treated as an association taxable as a corporation (other than in connection with an initial public offering in accordance with Article 10) or as a publicly traded partnership for purposes of Section 7704 of the Code.

Section 9.9 Void Transfers.  To the greatest extent permitted by the Act and other Law, any Transfer by any Member of any Membership Interest (or any portion thereof) or other interest in the Company in contravention of this Agreement shall be ineffective and null and void ab initio and shall not bind or be recognized by the Company or any other Person.  In the event of any Transfer in contravention of this Agreement, to the greatest extent permitted by the Act and other Law, the purported transferee shall have no right to any profits, losses or distributions of the Company or any other rights of a Member.

Article 10

REGISTRATION RIGHTS

Section 10.1 Demand of Qualified IPO.  Following the Blackout Period, MH shall have the right to require the Company to effect a Qualified IPO by delivering written notice to the Company and CME Group not less than 90 days prior to the initial filing of the registration statement for such offering (a “Qualified IPO Demand”).  For the avoidance of doubt, (x) a Qualified IPO shall not be subject to the provisions of Section 9.1(c) through Section 9.1(i) and (y) any initial public offering of equity securities of the Company must comply with the provisions of this Article 10. 

Section 10.2   Structuring of Qualified IPO.  A Qualified IPO may be structured, at the option of the Board of Directors, as the sale of Membership Interests (or portions thereof) (which may be converted into a corporation for such purpose, with each Member’s Membership Interest being converted into or exchanged for equity securities in proportion to such Member’s Percentage Interest).  In the event a registration of Membership Interests (or portions thereof) is preceded by a conversion of the Company into a corporation or a transfer of Membership Interests or Company assets to a corporation, Transfers of interests in such corporation shall be restricted to the extent the Board of Directors determines to be necessary to preserve the tax-free treatment of such incorporation transaction for federal income tax purposes.  Notwithstanding the foregoing, no actions pursuant to this Section 10.2 may be effective prior to the date of consummation of the closing of the Qualified IPO.

Section 10.3 Conversion into Corporation.  (a)  If the Company is converted into a corporation or a corporation is formed to own all the limited liability company interests in or assets of the Company, and the Membership Interests are converted into or exchanged for equity securities of such corporation, as contemplated by Section 10.2, the terms “Membership Interests”, “Members” and similar terms that are applicable to limited liability companies and used in this Agreement shall, after such conversion or exchange, refer to such equity securities, the stockholders of such corporation and similarly corresponding terms applicable to the corporate form that is then applicable to the Company (or successor thereto) and (b) the parties agree, subject to Section 10.4 to enter into, and to cause any such corporation to enter into, an agreement setting forth rights and obligations of the parties equivalent to those provided in this Agreement (subject to such changes with respect to tax matters as are necessary or appropriate as a result of the Company ceasing to be a partnership for federal income tax purposes).  Notwithstanding the foregoing, no actions pursuant to this Section 10.3 may be effective prior to the date of consummation of the closing of the Qualified IPO.

Section 10.4 Waiver of Board Supermajority Approval.  CME Group agrees that, in the event of a Qualified IPO, no consent or approval of CME Group or any Director appointed by CME Group or any director (or equivalent) of any Subsidiary of the Company shall be required pursuant to Section 5.3(f), Article 9, Section 14.2 or any other provision of this Agreement for any action reasonably necessary to facilitate such Qualified IPO, including any amendment of this Agreement or other governing documents of the Company (or successor thereto) reasonably necessary to comply with Law, including the rules of any national securities exchange on which the securities of the Company (or successor thereto) are listed, following such Qualified IPO (including amending Section 5.1(b) and expanding the Board of Directors to the extent required by Law to permit the creation of a committee of independent Directors while permitting CME Group and MH to retain the right to appoint the same number of Directors (e.g., if the size of the Board of Directors at such time is ten consisting of seven Directors appointed by MH and three Directors appointed by CME Group and a committee of three independent Directors was required, the Board of Directors would be expanded to 13)); provided, however  that the foregoing shall not eliminate any requirement under this Agreement for consent or approval of CME Group, the CME Group Members or any Director appointed by CME Group or any director (or equivalent) of any Subsidiary of the Company prior to the Qualified IPO with respect to any action in connection with such Qualified IPO that would adversely affect in any material respect CME Group’s rights or economic interests provided in this Agreement following such Qualified IPO.  For the avoidance of doubt, in the case of any such Qualified IPO undertaken when Board Supermajority Approval Rights still apply, this Section 10.4 shall not require CME Group to relinquish any Board Supermajority Approval Rights pursuant to Section 5.3(f) with respect to the Company Entities (or successors thereto) following such Qualified IPO.

Section 10.5 Piggyback Registration.  (a)  Subject to the provisions of this Section 10.5,  Section 10.7 and Section 10.8, in the event of a Qualified IPO, each CME Group Member may request, at any time within the 20 Business Days following receipt of the Qualified IPO Demand from MH, the opportunity to include in such registration statement a percentage of such CME Group Member’s Membership Interests equal to not more than the portion of the MH Members’ Membership Interests included in such registration statement (a “Piggyback Registration”).  A Piggyback Registration shall be available only for Membership Interests of the same class or series as those proposed to be registered by the MH Members.

(b)               Upon any CME Group Member’s written request made within the 20 Business Days after the receipt of the Qualified IPO Demand from MH (which request shall specify the minimum price, if any, below which such CME Group Members will not sell such Membership Interests (or portions thereof)), the Company and MH shall, subject to clause (c) below, cause the underwriter(s) to include all Membership Interests (or portions thereof) that such CME Group Members has so requested to include (in addition to the MH Members’ Membership Interests (or portions thereof) to be included in such registration statement), and shall use their reasonable best efforts to effect the registration under the Securities Act of all such Membership Interests (or portions thereof), to the extent required to permit the disposition of the Membership Interests (or portions thereof) so to be registered; provided  that, if at any time after giving notice of its intention to register any Membership Interests (or portions thereof) in a Qualified IPO and prior to the effective date of the registration statement filed in connection with such registration, MH shall determine not to register such securities, MH shall give notice to the Company and the CME Group Members and, thereupon, the Company shall be relieved of its obligation to register any Membership Interests (or portions thereof) in connection with such registration, any elections made by the CME Group Members shall be deemed rescinded and shall be of no legal force or effect and the CME Group Members’ Piggyback Registration rights with respect to such registration shall terminate. 

(c)                If the CME Group Members exercise their right to a Piggyback Registration pursuant to this Section 10.5 and the lead underwriters advise MH and the CME Group Members that, in their view, the amount of Membership Interests (or portions thereof) requested to be included in such registration exceeds the largest amount of Membership Interests (or portions thereof) that could be included in the public offering without having an adverse effect on such public offering, including the price at which such Membership Interests (or portions thereof) can be sold, then the amount of Membership Interests (or portions thereof) to be included in such registration shall be determined pro rata among MH and the CME Group Members that exercised their right to a Piggyback Registration pursuant to this Section 10.5 based on the Membership Interests (or portions thereof) requested to be included in such registration.

(d)               It shall be a condition precedent to the obligations of the Company to take any action pursuant to the foregoing provisions of this Section 10.5 that each CME Group Member that exercised their right to a Piggyback Registration pursuant to this Section 10.5 shall furnish to the Company such customary information regarding itself, the Membership Interests (or portions thereof) held by such CME Group Member and the intended method of disposition of such securities as shall be required to effect the registration of such Membership Interests (or portions thereof). 

Section 10.6 Registration Expenses.  All expenses incident to the Company’s performance of or compliance with this Article 10, including without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding discounts and commissions and transfer taxes, if any, attributable to the sale of Membership Interests (or portions thereof)) and other Persons retained by the Company, shall be borne by the Company, and the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are to be listed.  Notwithstanding anything herein to the contrary, in the event MH delivers a Qualified IPO Demand to the Company and subsequently elects not to pursue or consummate such Qualified IPO (other than as a result of the breach by CME Group of this Agreement or any underwriting agreement to which CME Group is a party providing for such Qualified IPO), the expenses incurred by the Company in connection with such Qualified IPO Demand shall be borne by MH and shall be promptly reimbursed to the Company by MH. 

Section 10.7        Indemnification.    

(a)                In General.  The Company shall indemnify, to the fullest extent permitted by law, each Member, its officers, directors and Affiliates and each Person who controls such Member (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or applicable blue sky laws, except insofar as the same are made in reliance upon and in conformity with information relating to such indemnified party furnished in writing to the Company by such indemnified party expressly for use therein.  In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Members. 

(b)               Information from Members.  In connection with any registration statement in which a Member is participating, each such Member shall indemnify, to the fullest extent permitted by law, the Company Entities against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statement therein not misleading, but only to the extent that the same are made in reliance upon and in conformity with information relating to such Member furnished in writing to the Company by such Member expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Members and the liability of each such Member shall be in proportion to and limited to the net amount received by such Member from the sale of its Membership Interests pursuant to such registration statement.

(c)                Notice of Claim.  Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.  If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld).  An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party which are in addition to or may conflict with those available to another indemnified party with respect to such claim.  Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder, except to the extent, and only to the extent, that the indemnifying party is materially prejudiced by such failure to notify.

(d)               Survival of Indemnification.  The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the Transfer of any Membership Interest.

(e)                Contribution.  If the indemnification provided for in or pursuant to this Section 10.7 is due in accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred to herein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified Person as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which result in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations.  The relative fault of the indemnifying party on the one hand and of the indemnified party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, as by such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  In no event shall the liability of any selling Member be greater in amount than the amount of net proceeds received by such Member upon such sale or the amount for which such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under Section 10.7(a) or Section 10.7(b) hereof had been available under the circumstances.

Section 10.8        Qualified IPO Agreements.

(a)                The CME Group Members may not participate in any registration hereunder unless each CME Group Member that wishes to participate (i) agrees to accept the terms of the underwriting arrangements (including any lock up or market standoff agreements) as agreed upon by the Company and the underwriters, which arrangements shall be customary and no less favorable to such CME Group Member than to MH, and (ii) complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements and Section 10.5(d); provided, however, that MH shall use commercially reasonable efforts to procure that such CME Group Member shall not be required to (A) make any representations or warranties to the Company or the underwriters other than representations and warranties regarding such CME Group Member, the Membership Interests (or portions thereof) held by such CME Group Member and the intended method of distribution thereof or (B) provide any indemnification other than as provided in Section 10.7.   

(b)               In connection with any Qualified IPO, the Members shall negotiate in good faith the terms of a customary registration rights agreement to apply following such Qualified IPO.

Article 11

NON-COMPETITION AND CERTAIN OTHER COVENANTS

Section 11.1     Non-Competition. (a) Except as otherwise provided in this Section 11.1, during the period beginning on the date hereof and ending on the date on which any Parent’s Parent Aggregate Percentage Interest goes below the Lower Threshold, each Parent shall not, and shall cause its other Parent Entities not to, directly or indirectly, (i) engage in, manage, operate, advise or otherwise participate in, or acquire or own any interests in any Person that engages in, manages, operates, advises or otherwise participates in, a Competing Business or (ii) enter into any relationship or affiliation with any Person with respect to the use of its name or brands with respect to any activity in a Competing Business. For the avoidance of doubt, as long as Platts is a controlled Affiliate of MH, Platts shall be subject to the restrictions contained in this Section 11.1. 

(b)               Notwithstanding anything to the contrary in Section 11.1(a), nothing in Section 11.1(a) shall prohibit any Person from:

                                                     (i)            directly or indirectly acquiring or owning equity interests of a Public Company constituting 5% or less of the outstanding voting power thereof;

                                                   (ii)            making any acquisition permitted by Section 11.2(a) or Section 11.2(b); or

                                                 (iii)            making any Permitted Predominantly Non-Competing Acquisition, subject to compliance with Section 11.2(c) or Section 11.2(d), as applicable.

(c)                Notwithstanding anything to the contrary in this Agreement, the business of any CME Group Unaffiliated Entity listed on Schedule 1.1(a) (so long as it remains such) shall not be a Competing Business. 

Section 11.2 Right of First Bid/Refusal.  Notwithstanding Section 11.1(a), a Parent or its other Parent Entities may acquire interests in a Person that, directly or indirectly, engages in, manages, operates, advises or otherwise participates in a Competing Business (a “Target”) if such Parent and its applicable other Parent Entities comply with all of the provisions of this Article 11 with respect thereto.

(a)                Passive Investments in Predominantly Competing Business.  If either Parent or any of its other Parent Entities wishes to directly or indirectly acquire interests in a Target that is not a Predominantly Non-Competing Business (a “Predominantly Competing Business”) representing less than 50% of the outstanding voting power thereof without obtaining effective control thereof, (i) such Parent shall provide written notice to the Company and the other Parent, with reasonable promptness, of such potential acquisition, which notice shall (A) name such Target, (B) describe the material terms (if any) on which such Person wishes to make such acquisition and (C) include (subject to any confidentiality obligations of such Person to such Target) all material information in the possession of any Parent Entity as to the businesses, operations, assets and liabilities of such Target (a “Proposed Non-Compete Acquisition Notice”) and (ii) such potential acquisition shall only be conducted through the Company; provided that such Person may pursue and make such potential acquisition if (1) the Board of Directors does not deliver written notice thereof electing to have the Company pursue the potential acquisition within 30 days after receipt of the Proposed Non-Compete Acquisition Notice from such Parent, (2) at any point after making an election to pursue such potential acquisition, the Company delivers a written notice to such Parent stating that the Company no longer wishes to pursue such potential acquisition, or (3) the Company does not (x) enter into a definitive agreement providing for such potential acquisition within 90 days after delivering written notice of its election to pursue such potential acquisition, which period shall be extended up to an additional 270 days so long as the Company and the potential counterparty are making a good faith effort to enter into such agreement or (y) consummate such acquisition within 180 days after entering into the definitive agreement providing for such acquisition, which period shall be extended up to an additional 180 days if all other conditions to consummating such acquisition have been satisfied (or are capable of being satisfied) and such extension is required to obtain any required governmental approval necessary to consummate such acquisition and the parties to such acquisition continue to use efforts in a manner consistent with the definitive agreement providing for such acquisition to consummate such acquisition as promptly as reasonably practicable; provided, further, that neither Parent nor any other of its other Parent Entities may directly or indirectly make such acquisition at a price that is less than 95% of the price, or otherwise on terms that are materially more favorable in the aggregate to such Parent Entity than the terms, specified in the Proposed Non-Compete Acquisition Notice for such acquisition (or if the Proposed Non-Compete Acquisition Notice for such acquisition did not contain the price and other material terms for such acquisition the price and other material terms on which the Board of Directors expressed an interest in making such acquisition, as evidenced in a resolution of such Board of Directors), without complying again with the foregoing provisions of this clause (a). 

Company; provided  that such Person may pursue and make such potential acquisition if (1) the Board of Directors does not deliver written notice thereof electing to have the Company pursue the potential acquisition within 30 days after receipt of the Proposed Non-Compete Acquisition Notice from such Parent, (2) at any point after making an election to pursue such potential acquisition, the Company delivers a written notice to such Parent stating that the Company no longer wishes to pursue such potential acquisition, or (3) the Company does not (x) enter into a definitive agreement providing for such potential acquisition within 90 days after delivering written notice of its election to pursue such potential acquisition, which period shall be extended up to an additional 270 days so long as the Company and the potential counterparty are making a good faith effort to enter into such agreement or (y) consummate such acquisition within 180 days after entering into the definitive agreement providing for such acquisition, which period shall be extended up to an additional 180 days if all other conditions to consummating such acquisition have been satisfied (or are capable of being satisfied) and such extension is required to obtain any required governmental approval necessary to consummate such acquisition and the parties to such acquisition continue to use efforts in a manner consistent with the definitive agreement providing for such acquisition to consummate such acquisition as promptly as reasonably practicable; provided, further, that neither Parent nor any other of its other Parent Entities may directly or indirectly make such acquisition at a price that is less than 95% of the price, or otherwise on terms that are materially more favorable in the aggregate to such Parent Entity than the terms, specified in the Proposed Non-Compete Acquisition Notice for such acquisition (or if the Proposed Non-Compete Acquisition Notice for such acquisition did not contain the price and other material terms for such acquisition the price and other material terms on which the Board of Directors expressed an interest in making such acquisition, as evidenced in a resolution of such Board of Directors), without complying again with the foregoing provisions of this clause (a).  If such acquisition is made by such Parent or any of its other Parent Entities in compliance with the foregoing, the ownership of the interests acquired thereby and the operation of such Competing Business by such Target shall not constitute a violation of the restrictions contained in Section 11.1(a) regardless of any Subsequent Expansion or other expansion of such Competing Business.  If, after making an acquisition permitted pursuant to the foregoing provisions of this Section 11.2(a), such Parent or any of its other Parent Entities wishes to directly or indirectly acquire additional interests in such Target that, together with interests then owned by such Parent and its other Parent Entities, represent 50% or more of the voting power thereof (or to obtain effective control thereof), such Parent and its applicable other Parent Entities shall comply with clause (b) below with respect to such potential acquisition.

(b)               Acquisitions of or Controlling Investments in Predominantly Competing
Business.  If either Parent or any of its other Parent Entities wishes to directly or indirectly acquire interests in a Predominantly Competing Business representing 50% or more of the voting power thereof (or to acquire interests representing less than 50% of the voting power thereof and obtain effective control thereof), (i) such Parent shall provide a Proposed Non-Compete Acquisition Notice, with reasonable promptness, to the Company and the other Parent with respect to such potential acquisition and (ii) such potential acquisition shall only be conducted through the Company; provided  that such Person may pursue and make such potential acquisition if (A) the Board of Directors does not deliver written notice thereof electing to have the Company pursue the potential acquisition within 30 days after receipt of the Proposed Non-Compete Acquisition Notice from such Parent, (B) at any point after making an election to pursue such potential acquisition, the Company delivers a written notice to such Parent stating that the Company no longer wishes to pursue such potential acquisition, or (C) the Company does not (1) enter into a definitive agreement providing for such potential acquisition within 90 days after receipt of the Proposed Non-Compete Acquisition Notice, which period shall be extended up to an additional 270 days so long as the Company and the potential counterparty are making a good faith effort to enter into such agreement or (2) consummate such acquisition within 180 days after entering into the definitive agreement providing for such acquisition, which period shall be extended up to an additional 180 days if all other conditions to consummating such acquisition have been satisfied (or are capable of being satisfied) and such extension is required to obtain any required governmental approval necessary to consummate such acquisition and the parties to such acquisition continue to use efforts in a manner consistent with the definitive agreement providing for such acquisition to consummate such acquisition as promptly as reasonably practicable; provided, further, that neither Parent nor any other of its other Parent Entities may directly or indirectly make such acquisition at a price that is less than 95% of the price, or otherwise on terms that are materially more favorable in the aggregate to such Parent Entity than the terms, specified in the Proposed Non-Compete Acquisition Notice for such acquisition (or if the Proposed Non-Compete Acquisition Notice for such acquisition did not contain the price and other material terms for such acquisition the price and other material terms on which the Board of Directors expressed an interest in making such acquisition, as evidenced in a resolution of such Board of Directors), without complying again with the foregoing provisions of this clause (b).  If such acquisition is made by such Parent or any of its other Parent Entities in compliance with the foregoing, the ownership of the interests acquired thereby and the operation of such Competing Business by such Target shall not constitute a violation of the restrictions contained in Section 11.1(a); provided  that the exception to Section 11.1(a) in this Section 11.2(b) shall be applicable only to the extent of the Competing Business of such Target as it exists at the time the interests therein are acquired by such Parent or any of its other Parent Entities and not to any Subsequent Expansion of such Competing Business.

(c)                Passive Investments in Predominantly Non-Competing Business.  In the event either Parent or any of its other Parent Entities directly or indirectly makes a Permitted Predominantly Non-Competing Acquisition resulting in such Parent and its other Parent Entities directly or indirectly owning in the aggregate interests representing less than 50% of the outstanding voting power of such Predominantly Non-Competing Business without having effective control thereof, such Parent shall provide written notice to the Company and the other Parent, with reasonable promptness and in any event within ten Business Days, after such acquisition and (i) if the Competing Business of such Predominantly Non-Competing Business is reasonably capable of being separated from the other business of such Target, such Parent and its other Parent Entities shall use their respective commercially reasonable efforts to facilitate such Target promptly offering to sell or contribute the Competing Business to the Company on terms reasonably acceptable to such Target and the Company or (ii) if the Competing Business of such Target is not reasonably capable of being so separated, such Parent and its other Parent Entities shall use their respective commercially reasonable efforts to facilitate such Target entering into commercial arrangements related to the Competing Business designed to provide the Company with as much of the economic benefits of the operation of the Competing Business as is reasonably practicable on terms reasonably acceptable to such Target and the Company (it being understood that this would include at a minimum using the Company as a licensing and calculation agent).  If, despite compliance by such Parent and its other Parent Entities with the terms of this clause (c), within 180 days after the notice specified above, (A) such Target decides not to pursue such offer or commercial arrangement, (B) the Board of Directors does not elect to have the Company pursue such offer or commercial arrangements or (C) such Target and the Company are unable to agree on implementation of any such offer or commercial arrangements with respect to the Competing Business, the ownership of the interests in such Target acquired in the Permitted Predominantly Non-Competing Acquisition and the operation of such Competing Business by such Target shall not constitute a violation of the restrictions contained in Section 11.1(a) regardless of any Subsequent Expansion or other expansion of such Competing Business.  If, after making an acquisition permitted pursuant to the foregoing provisions of this Section 11.2(c), such Parent or any of its other Parent Entities wishes to directly or indirectly acquire additional interests in such Target that, together with interests then owned by such Parent and its other Parent Entities, represent 50% or more of the voting power thereof (or to obtain effective control thereof), such Parent and its other Parent Entities shall comply with clause (d) below with respect to such potential acquisition.

(d)               Acquisitions of or Controlling Investments in Predominantly Non-Competing Businesses.  In the event either Parent or any of its other Parent Entities directly or indirectly makes a Permitted Predominantly Non-Competing Acquisition resulting in such Parent and its other Parent Entities directly or indirectly owning in the aggregate interests representing 50% or more of the outstanding voting power of such Predominantly Non-Competing Business (or acquiring interests representing less than 50% of the voting power thereof and obtaining effective control thereof), such Parent shall provide written notice to the Company and the other Parent, with reasonable promptness and in any event within ten Business Days, after such acquisition and (i) if the Competing Business of such Predominantly Non-Competing Business is reasonably capable of being separated from the other business of such Target, such Parent and its other Parent Entities shall promptly, but no later than 30 days following the closing of such Predominantly Non-Competing Acquisition, make a written offer to sell or contribute the Competing Business of the Target to the Company at a price in cash equal to the value reasonably attributed to the Competing Business by such Parent in good faith in the acquisition and otherwise on terms reasonably acceptable to such Parent and the Company or (ii) if the Competing Business of such Target is not reasonably capable of being so separated, such Parent and its other Parent Entities shall offer to enter into commercial arrangements related to the Competing Business designed to provide the Company with as much of the economic benefits of the operation of the Competing Business as is reasonably practicable at a price equal to the value reasonably attributed to the Competing Business by such Parent in good faith in the acquisition and otherwise on terms reasonably acceptable to such Parent and the Company (it being understood that the parties agree this would include at a minimum using the Company as a licensing and calculation agent).  If, despite compliance by such Parent and its other Parent Entities with the terms of this clause (d), within 180 days after the notice specified above, (A) the Board of Directors does not elect to have the Company pursue such offer or arrangements or (B) such Parent and the Company are unable to agree on implementation of any such offer or commercial arrangements with respect to the Competing Business, the ownership of the interests in such Target acquired in the Permitted Predominantly Non-Competing Acquisition and the operation of such Competing Business by such Target shall not constitute a violation of the restrictions contained in Section 11.1(a); provided  that the exception to Section 11.1(a) in this Section 11.2(d) shall be applicable only to the extent of the Competing Business of such Target as it exists at the time the interests therein are acquired by such Parent or its other Parent Entities and not to any Subsequent Expansion of such Competing Business; provided, further, that if such Parent and the Company were unable to agree on implementation of commercial arrangements pursuant to clause (ii) of the first sentence of this Section 11.2(d) because the terms proposed to the Company were not acceptable to the Company, then such Parent and its other Parent Entities may not during the two years thereafter directly or indirectly enter into similar commercial arrangements related to such Competing Business with an unaffiliated third party on terms that are materially more favorable in the aggregate to the counterparty than the terms that were offered to the Company unless the Company is, at such time, unable to provide the required services at substantially the same level of service or the Company declines to provide such required services on such terms.

(e)                Notice of Permitted Predominantly Non-Competing Acquisition.  Any Parent or its other Parent Entities that directly or indirectly makes a Permitted Predominantly Non-Competing Acquisition (other than any Predominately Non-Competing Acquisition where the Competing Business is de minimis) shall, subject to any applicable confidentiality obligations (including fiduciary obligations of confidentiality), provide the other Parent with such information as may be reasonably necessary to permit such other Parent to determine whether the acquiring parties are in compliance with the foregoing provisions of this Section 11.2. 

Section 11.3 Divestitures of Interests in Predominantly Competing Businesses. (a) Divestitures by Parent Entities.  If either Parent or any of its other Parent Entities wishes to directly or indirectly dispose of any interests in any Predominantly Competing Business, such Parent shall offer in writing to sell or contribute such interests to the Company on terms reasonably acceptable to such Parent; it being understood that such Parent and its other Parent Entities may not engage in any solicitation with respect to a potential acquisition of any such interests from third parties prior to making such offer to the Company.  If, despite compliance by such Parent and its other Parent Entities with the terms of this clause (a), (i) the Board of Directors does not elect to have the Company pursue such offer within 30 days after receipt of such offer or (ii) such Parent and the Company are unable to agree on the terms of such sale or contribution that are reasonably acceptable to such Parent and the Company within 180 days after receipt of such offer, such Parent and its other applicable Parent Entities may sell such interests to a third party at a price that is not less than 95% of the price offered to the Company and on other terms that are not materially less favorable in the aggregate to such Parent Entities than those offered to the Company.

(b)               Divestitures by Entities that are not Parent Entities.  If either Parent or any of its other Parent Entities becomes aware that any Person in which such Parent or any of its other Parent Entities directly or indirectly owns any interests, wishes to dispose of any interests in a Predominantly Competing Business, subject to any confidentiality obligations (including fiduciary obligations of confidentiality) owed to such Person, (i) such Parent shall inform the Company in writing, with reasonable promptness, of such proposed disposition and (ii) such Parent and its other Parent Entities shall use their respective commercially reasonable efforts to facilitate such Person promptly offering to sell or contribute the interests to the Company on terms reasonably acceptable to such Person and the Company.  For the avoidance of doubt, if, despite compliance by such Parent and its Parent Entities, such Person does not offer to sell or contribute such interest to the Company, neither Parent nor any if its other Parent Entities shall have any liability under this Section 11.3(b).  

Section 11.5 Transaction Structures; Other.  It is understood that the provisions of this Article 11 are intended to apply regardless of the structure of the relevant transaction (i.e., whether structured as a stock sale, asset sale, merger or otherwise).  Without limiting the generality of the foregoing, an acquisition or disposition of assets shall be deemed to constitute an acquisition or disposition of interests representing 100% of the voting power of the Person owning such assets for purposes of this Article 11 (e.g., if a Parent wishes to acquire assets relating to a business that is a Competing Business from a Person that itself is not a Predominantly Competing Business because of the extent of other businesses engaged in by such Person, such acquisition of assets shall be treated for purposes of this Article 11 as if it was an acquisition of a Person that solely held the assets being acquired such that such Person would be considered a Predominantly Competing Business).  The parties agree that in connection with using commercially reasonable efforts under this Article 11, no Person shall be required to pay any money or offer any financial or business accommodation to any Person.  

Section 11.6 Competitor Transactions.  Notwithstanding anything herein to the contrary, from and after the occurrence of a Competitor Transaction with respect to a Parent, and without limiting the provisions of Section 6.6:  (a) the individuals appointed by such Parent to be Directors or directors (or equivalent) of Subsidiaries of the Company may not (i) use any competitively sensitive information of the Company in any manner other than in their capacity as Directors or directors (or equivalent), as applicable or (ii) other than to such senior executives who (A) require such information for purposes of overseeing and monitoring the Parent’s investment in the Company and (B) have agreed to not disclose such information to any other Person and to protect such information from unauthorized use, share any such competitively sensitive information with such Parent or any Subsidiary thereof; and (b) the rights of such Parent and any Subsidiary thereof party hereto pursuant to Section 6.5(a) to inspect, examine or otherwise have access to the books, records and accounts of the Company shall no longer include the right to inspect, examine or otherwise have access to any competitively sensitive information; provided, however, that such Parent may continue to have accountants and auditors perform audits as contemplated by Section 6.5(a). 

Section 11.7 Non-Solicitation. (a) During the period beginning on the date hereof and ending on the date on which any Parent’s Parent Aggregate Percentage Interest goes below the Lower Threshold, each Parent shall not, and shall cause its other Parent Entities not to, directly or indirectly, solicit any Person who was at any time during the six-month period immediately prior to such solicitation, or is at such time, a senior executive of any of the Company Entities to accept employment with such Parent or any of the other Parent Entities; provided that it shall not be a violation of this Section 11.7 to engage in non-directed solicitation or recruiting activities incidental to general advertising or other general solicitation activities.

prior to such solicitation, or is at such time, a senior executive of any of the Company Entities to accept employment with such Parent or any of the other Parent Entities; provided that it shall not be a violation of this Section 11.7 to engage in non-directed solicitation or recruiting activities incidental to general advertising or other general solicitation activities.

Section 11.8 Equitable Remedies.  Each party hereto acknowledges that the terms of this Article 11 were negotiated in good faith by the parties hereto, are reasonable and necessary in light of such party’s unique position, responsibility and knowledge of the operations of the Company Entities and the unfair advantage that such party’s knowledge and expertise concerning the business of the Company Entities would afford a competitor of the Company Entities and are not more restrictive than necessary to protect the legitimate interests of the parties hereto.  If the final judgment of a court of competent jurisdiction declares that any term or provision of this Article 11 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or geographic area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment or decision may be appealed.  Each party hereto acknowledges that the Company Entities and the parties hereto would be irreparably harmed by any breach of this Article 11 and that there would be no adequate remedy at law or in damages to compensate the Company Entities and the stockholders of the Company for any such breach.  Each party hereto agrees that the other parties hereto shall be entitled to injunctive relief requiring specific performance by such party of this Article 11, and such party consents to the entry thereof.

Article 12

STANDSTILL