Exhibit 10.33
Confidential Materials omitted and filed
separately with the Secutities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Reorganization Agreement
This Reorganization Agreement (the "Agreement") is entered into
between the following (each a "Party", and collectively, the "Parties"):
Deutsche Borse Aktiengesellschaft, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "DBAG")
SWX Swiss Exchange, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "SWX")
Board of Trade of the City of Chicago, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-
▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "CBOT")
Ceres Trading Limited Partnership, c/o Electronic Chicago Board of Trade, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America
(hereinafter, "Ceres")
Electronic Chicago Board of Trade, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "eCBOT")
Ceres Alliance L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "Ceres Alliance")
CBOT/Eurex Alliance, L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter, "LLC")
Eurex Beteiligungen AG, c/o Eurex Zurich AG, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇
Reorganization Agreement - Final
-2-
(hereinafter, "Eurex Beteiligungen")
Eurex Frankfurt AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "Eurex Frankfurt")
Eurex Zurich AG, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(hereinafter, "Eurex Zurich")
Eurex Deutschland, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "Eurex Deutschland")
Eurex Clearing AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter, "Eurex Clearing")
Deutsche Borse Systems AG, Neue ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇
(hereinafter, "DBS")
Reorganization Agreement - Final
-3-
PREAMBLE
A. The following agreements (collectively the "Preexisting Agreements") have
been entered into by and between two or more of the Parties:
(1) Alliance Agreement dated October 1, 1999 (the "Alliance Agreement" or
"AA");
(2) Software License Agreement dated October 1, 1999 (the "Software
License Agreement" or "SLA");
(3) Interim Agreement dated January 20, 2000 (together with all addenda,
the "Interim Agreement");
(4) Market Supervision Services Agreement dated July 19, 2000 (the
"MSSA");
(5) Master Software Development Agreement dated July 20, 2000 (the "Master
Software Development Agreement" or "MSDA");
(6) Systems Operations Agreement dated July 20, 2000 (the "Systems
Operations Agreement" or "SOA");
(7) Confirmation of Rights Agreement dated July 27, 2000 (the
"Confirmation of Rights Agreement" or "CRA");
(8) Consent and Amendment Agreement dated February 21, 2001 (the "Consent
and Amendment Agreement"); and
(9) No Prejudice and Confidentiality Agreement dated July 17, 2001 (the
"No Prejudice Agreement").
B. DBAG, SWX, CBOT, Ceres, Ceres Alliance, Eurex Frankfurt, Eurex Zurich and
Eurex Deutschland entered into the Alliance Agreement for the purposes
described therein. LLC was organized as a company jointly owned by Ceres
Alliance and Eurex Zurich in order to co-ordinate the initiatives of the
parties to the Alliance
Reorganization Agreement - Final
-4-
Agreement as contemplated thereunder. Effective as of September 7, 2000,
Eurex Zurich assigned its membership interests in LLC to Eurex
Beteiligungen.
C. DBAG and SWX originally developed and hold proprietary rights in the Eurex
Software. On October 1, 1999, DBAG, SWX, CBOT and Ceres entered into the
Software License Agreement, under which DBAG and SWX granted a license in
Eurex Release 2.0 (as defined in Section 1 below) to CBOT and Ceres, and
which set the terms for joint and several ownership of Modifications (as
defined in Section 1 below) by DBAG, SWX and Ceres.
D. All Modifications following Eurex Release 2.0 other than a/c/e Release 1.0
have been developed by DBAG and SWX without participation of CBOT and
Ceres. Pursuant to Section 7.1(b)(1) and Paragraphs (1) and (3) of Exhibit
E of the Software License Agreement, Ceres has paid [**] Euros to cover its
share of the expenses for the 3.0 Modifications (as defined in the SLA).
Pursuant to the Master Software Development Agreement, Ceres paid for the
development of a/c/e Release 1.0, without any contribution from DBAG or
SWX. In addition, Ceres has fulfilled all of its obligations under the
Confirmation of Rights Agreement in connection with the 4.0 Modifications
and the Current 4.1 Modifications (each as defined in the CRA).
E. On January 20, 2000, DBS, LLC and Ceres entered into the Interim Agreement
covering development work on the Eurex Software and the implementation,
operation and maintenance of the technical infrastructure for CBOT's
electronic market before the execution of the Master Software Development
Agreement and the Systems Operations Agreement. The Interim Agreement was
extended on several occasions and was superseded by the Master Software
Development Agreement and the Systems Operations Agreement referred to
below.
F. On July 17, 2000, CBOT and Eurex Frankfurt entered into the Market
Supervision Services Agreement ("MSSA"). On November 3, 2000, CBOT assigned
the MSSA to Ceres as of July 20, 2000.
Reorganization Agreement - Final
-5-
G. On July 20, 2000, DBS, LLC, DBAG, SWX, CBOT, Ceres, Ceres Alliance, Eurex
Frankfurt, Eurex Zurich and Eurex Clearing entered into the Master Software
Development Agreement, under which DBS was appointed as service provider
for developing and maintaining the Eurex Software for LLC for the benefit
of DBAG, SWX, CBOT and Ceres.
H. On July 20, 2000, DBS, LLC, DBAG, SWX, CBOT, Ceres, Ceres Alliance, Eurex
Frankfurt, Eurex Zurich and Eurex Clearing also entered into the Systems
Operations Agreement under which DBS was appointed as service provider for
the implementation, operation and maintenance of certain Eurex Software-
based computer and communication resources required to provide electronic
trading services.
I. With the Consent and Amendment Agreement, eCBOT, effective as of September
30, 2000, and Eurex Beteiligungen, effective as of September 7, 2000, have
become parties to the Alliance Agreement, the Master Software Development
Agreement and the Systems Operations Agreement.
J. On April 9, 2001, the Eurex Group gave the CBOT Group (each as defined in
the AA) formal notice that it was invoking the dispute resolution procedure
set forth in Section 12.1 of the Alliance Agreement with regard to (i)
CBOT's termination of its participation in the development of release a/c/e
2.0 of the Eurex Software, (ii) CBOT's failure to support the addition of
U.S. Equity Options for trading on the System, and (iii) CBOT's
understanding of the scope of the Alliance. On July 27, 2001, the Parties
involved unanimously agreed, in accordance with Section 12.1, that the
dispute resolution procedure had failed to resolve these issues.
K. In a letter dated April 16, 2001, Ceres requested, pursuant to clauses 9.2
(iv) and 9.3 of the MSSA, that Eurex Frankfurt indemnify Ceres and its
affiliates, including CBOT, for claims, losses, damages or liabilities, as
well as the costs of defense, based on a claim of patent infringement
asserted against CBOT in the case now known as eSpeed, Inc. and Electronic
Trading Systems, Inc. v. Board of Trade of
Reorganization Agreement - Final
-6-
the City of Chicago, et al., Civil Action No. 3-99CV1016-M, pending in the
United States District Court for the Northern District of Texas (the "Texas
Case"). Eurex Frankfurt has consistently rejected Ceres' request for
indemnification as baseless.
L. On April 18, 2001, Ceres terminated the MSSA, effective May 31, 2001.
M. On July 17, 2001, the Parties which are a party to the Alliance Agreement
have entered into the No Prejudice Agreement intended to govern settlement
discussions pertaining to the Alliance Agreement.
N. The Parties have decided to revise the scope of their contractual
relationship. Prior to entering into agreements reflecting such revised
scope, the Parties desire, in a first step, to amend the Alliance Agreement
and the Software License Agreement with regard to certain provisions that
would otherwise have effect following termination of these agreements, and,
in a second step, to terminate the Preexisting Agreements to the extent
still in force and to agree on certain terms governing the future
relationship among the Parties.
O. Effective upon termination of the Preexisting Agreements, the Parties
desire to enter into such agreements as are necessary in order to enable
(i) CBOT to continue to offer the electronic trading of certain CBOT
products on the electronic market operated on the basis of release a/c/e
1.0 of the Eurex Software and known as "a/c/e" (the "CBOT Electronic
Market"), and (ii) the users of the CBOT Electronic Market to access the
CBOT Electronic Market through a dedicated wide-area communications network
provided by DBS (the "Network"). To this end, the Parties desire to enter
into the following agreements (the "Follow-up Agreements"):
(1) Non-Exclusive Software License Agreement between DBAG, SWX, CBOT and
Ceres (Exhibit A, the "Non-Exclusive Software License Agreement" or
"NSLA");
Reorganization Agreement - Final
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(2) Software Maintenance Agreement between DBAG, SWX, CBOT, Ceres, Eurex
Frankfurt and Eurex Zurich (Exhibit B, the "Software Maintenance
Agreement" or "SMA");
(3) New Systems Operations Agreement between DBS, CBOT, Ceres, Eurex
Frankfurt and Eurex Zurich (Exhibit C, the "New Systems Operations
Agreement" or "NSOA").
In consideration of the foregoing premises and the mutual covenants herein set
forth, the Parties agree as follows:
1. Definitions
Unless otherwise specified in the body of this Agreement, each term set forth
below when used anywhere in this Agreement or its exhibits shall have the
respective meaning ascribed to it below:
1.1 "Affiliate" shall mean, with respect to any person, any person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the person in question. For
purposes of this definition, "control" means the possession, directly or
indirectly, of more than 50 % of the equity interests of a person or the
power to direct or cause the direction of the management and policies of a
person, whether through ownership of voting securities, by contract or
otherwise.
1.2 "CBOT Group" shall mean CBOT, Ceres, eCBOT, Ceres Alliance and all of their
Affiliates. For the avoidance of doubt, OneChicago, L.L.C. is, as of the
Effective Date, not an Affiliate of CBOT or a member of the CBOT Group.
1.3 "Change of Control" shall mean, with respect to any person (or a successor
of that person), (i) a merger or legal combination between that person and
another exchange or entity that provides systems for electronic trading
(excluding for the avoidance of doubt compliance or clearing) that is not
an Affiliate of that person on the date of this Agreement if such merger or
legal combination would result in that person and the other exchange or
entity that provides systems for electronic
Reorganization Agreement - Final
-8-
trading (excluding for the avoidance of doubt compliance or clearing)
becoming a single legal entity or Affiliates, (ii) the sale of all or
substantially all of the assets of that person to a person that is not an
Affiliate of that person on the date of this Agreement, (iii) a liquidation
or dissolution of that person, or (iv) any transfer, sale, or issuance of
any equity interest or series thereof in that person, that results in
another person or group (other than a person or group that is an Affiliate
of such person before such transfer, sale, issuance or other event, and
other than the general public taken as a whole in the specific case of a
public offering) owning or controlling a 50 % or more than a 50 % equity
interest (or other comparable interest) in such person, or 50 % or more
than 50 % of the combined voting rights in or management power over such
person, or possessing, directly or indirectly, the power to direct or cause
the direction of the management and policies of such person whether through
ownership of voting securities, by contract or otherwise. For purposes of
this Agreement and the Follow-up Agreements, the following events will be
deemed not to be a "Change of Control" (a) in the case of CBOT and Ceres,
if it restructures or otherwise reorganizes into a for-profit corporation
or holding corporation, whether stock or nonstock, by merger,
recapitalization, reorganization, charter amendment or otherwise, such that
the members and membership interest holders of the CBOT or the holders of
the partnership interest in Ceres, as the case may be, immediately prior to
the consummation of such restructuring continue to (i) own more than 50 %
of the equity interest in, (ii) hold more than 50 % of the combined voting
rights in or management power over, and (iii) possess the power to direct
or cause the direction of management and policies of the resulting entity
immediately following such restructuring; provided, however, that any
restructuring or reorganization that would involve, or result in, a merger
or legal combination as described in (i) of the first sentence of this
Section 1.3 is in any event deemed a "Change of Control"; and (b) in the
case of SWX or its Affiliates, where the party to this Agreement remains an
exchange subject to regulation by the Swiss Federal Banking Commission
(whether it be SWX, a newly formed entity or otherwise) or an entity whose
obligations are jointly and severally guaranteed by such exchange
(selbstschuldnerische Burgschaft).
Reorganization Agreement - Final
-9-
1.4 "Documentation" shall mean all documentation, technical specifications and
user manuals, in both human readable and machine readable form, flow charts
and narratives, as well as all other materials used in providing and
supporting electronic trading facilities and services and all other
tangible materials which represent, describe or specify the Eurex Software
and/or the Modifications or their use, operations or applications. For the
avoidance of doubt, the term "Documentation" shall include the Program
Documentation (as defined in Section 1.13 of the SLA).
1.5 "Effective Date" shall have the meaning as defined in Section 5.
1.6 "Eurex Group" shall mean DBAG, SWX, Eurex Frankfurt, Eurex Zurich, Eurex
Deutschland, Eurex Clearing, Eurex Beteiligungen, DBS and all of their
Affiliates.
1.7 "Eurex Release 2.0" shall mean the release of the Eurex Software put into
production on September 28, 1998 by Eurex Frankfurt for Eurex Deutschland
and Eurex Zurich.
1.8 "Exchanges" shall mean Eurex Zurich, Eurex Deutschland and the CBOT.
1.9 "Eurex Software" shall mean the entirety of the software used or developed
for the purpose of electronic trading or clearing of derivative products on
the electronic markets operated by or for Eurex Deutschland, Eurex Zurich
or the CBOT, provided that, for the avoidance of doubt, any software used
for production prior to August 27, 2000 for the purpose of electronic
trading of futures and futures options on an electronic market operated by
or for the CBOT (and not Eurex Deutschland or Eurex Zurich) is not included
in the Eurex Software. The Eurex Software includes the Programs (as defined
in the SLA) and the Modifications, but does not include any software that
has not been (i) developed by or on behalf of a member of the Eurex Group,
or (ii) co-owned at any time by Ceres, DBAG and SWX according to the AA and
the SLA. Subject to the preceding sentence, the Eurex Software does not
include software that is, has been or may be used for market surveillance
or clearing activities in connection with the CBOT Electronic Market.
Reorganization Agreement - Final
-10-
1.10 "Group" shall mean either the Eurex Group or the CBOT Group, as the case
may be.
1.11 "Licensors Confidential Information" shall have the meaning as defined in
Section 7.3 of the SLA.
1.12 "Modifications" shall mean all of the alterations, adaptions, amendments,
enhancements, extensions, modifications, developments, bug-fixes and
improvements to the Eurex Software and combinations of the Eurex Software
with other software to the extent (i) created by any member of a Group,
(ii) or jointly created by two or more members of one or both Groups, or
(iii) caused to be created by one or more members of one or both Groups.
For the avoidance of doubt, "Modifications" shall include, without
limitation, any "Modifications" as defined in Section 7.1 (b) of the SLA,
in particular, without limitation, the Release 3.0 Modifications (as
defined in the SLA), the 4.0 Modifications, the Current 4.1 Modifications
and the Future 4.1 Modifications (each as defined in the CRA), but shall
not include any software that has not been (i) developed by or on behalf
of a member of the Eurex Group, or (ii) co-owned at any time by Ceres,
DBAG and SWX according to the AA and the SLA. Subject to the preceding
sentence, the Modifications do not include software that is, has been or
may be used for market surveillance or clearing activities in connection
with the CBOT Electronic Market. Also, the Modifications do not include
any software used for production prior to August 27, 2000 for the purpose
of electronic trading of futures and futures options on an electronic
market operated by or for the CBOT (and not Eurex Deutschland or Eurex
Zurich).
1.13 "System" shall mean (i) until the Effective Date all computer and
communication resources intended to be used or actually used, by any of
the Parties or its Affiliates, to provide electronic trading services to
users of the Exchanges, including, without limitation, the Eurex Software,
and (ii) as of and from the Effective Date all computer and communication
resources provided by any member of the Eurex Group to a member of the
CBOT Group and actually used or intended to be used under any of the
Follow-Up Agreements.
Reorganization Agreement - Final
-11-
2. Amendment of Alliance Agreement and Software License Agreement
2.1 The Parties that are a party to the Alliance Agreement agree and
acknowledge that the Alliance Agreement is hereby amended as follows:
(i) Sections 3.6(d) and 3.6(e) are hereby deleted in their entirety;
(ii) Sections 7.2(a) and 7.2(b) are each hereby amended by striking the
words "and for a period of four (4) years thereafter" from the
second line of each section;
(iii) Section 7.2(c) is hereby deleted in its entirety and replaced by the
following:
"If any Party terminates this Agreement because of another
Party's violation of this Section 7.2, the rights of the
Breaching Party's Group to enforce any of the provisions of
Section 7.2(a) or 7.2(b) related to Restricted Products and
similar business ventures or arrangements shall cease."
(iv) Section 7.3(d)(iii) is hereby deleted in its entirety; and
(v) Section 13.11 is hereby deleted and replaced by the following:
"Sections 3.10, 10.3, 10.4, 12.2, 12.3 and 13.1 and Articles IX,
XI, XIII and all other provisions of this Agreement that can
reasonably be interpreted or construed as being intended to
survive the termination of this Agreement, shall survive the
termination of this Agreement."
2.2 The Parties that are a party to the Software License Agreement agree and
acknowledge that the Software License Agreement is hereby amended as
follows:
Reorganization Agreement - Final
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(i) Section 2.3 is hereby amended by striking the words "the fourth
anniversary of" in the second line and in the eighth/ninth line;
(ii) Section 2.5 of the Software License Agreement is hereby amended by
adding the following sentence:
"The provisions of this Section 2.5 shall have no effect
following the termination of this Agreement if none of the events
described under (i) and (ii) of the preceding sentence has
occurred by the time of termination of this Agreement."
and
(iii) Section 8.2 of the Software License Agreement is hereby deleted and
replaced by the following:
"Notwithstanding anything to the contrary contained elsewhere in
this Agreement, the following Sections of this Agreement shall
survive any termination hereof: Sections 2.4, 5.1.2, 5.2, 5.3,
5.4, 5.6, 5.7, 5.8, 7.3, 8 and 9. Sections 9.6 (only last
sentence) and Section 9.7 shall survive the liquidation,
dissolution, bankruptcy or reorganization of Ceres."
3. Termination of Preexisting Agreements
3.1 The Parties that are parties to the Alliance Agreement hereby acknowledge
and agree that the Alliance Agreement is terminated as of the Effective
Date, provided that the amendment thereof pursuant to Section 2.1 of this
Agreement is effective immediately prior to such termination.
3.2 Ceres hereby gives notice under Section 8.1 of the Software License
Agreement of termination of the Software License Agreement as of the
Effective Date, and
Reorganization Agreement - Final
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DBAG, SWX, CBOT and Ceres acknowledge and agree to terminate the Software
License Agreement as of the Effective Date, provided that the amendment
thereof pursuant to Section 2.2 of this Agreement is effective immediately
prior to such termination.
3.3 The Parties that are parties to the Master Software Development Agreement
and the Systems Operations Agreement hereby acknowledge and agree that the
Master Software Development Agreement and the Systems Operations Agreement
are terminated as of the Effective Date; provided, however, that
termination of the MSDA and the SOA shall not affect any obligation of any
Party thereto to make payments for services performed by DBS prior to the
Effective Date.
3.4 The Parties that are parties to the Confirmation of Rights Agreement
hereby acknowledge and agree that the CRA is terminated as of the
Effective Date.
3.5 In the event of a conflict between a provision surviving the termination
of any of the Preexisting Agreements and a provision of this Agreement,
the provision of this Agreement shall prevail.
4. Effect of Termination
4.1 Subject to Ceres' right to continue to use any rights granted to it under
and in accordance with the terms of the Non-Exclusive Software License
Agreement, as of the Effective Date,
(i) the licenses granted under the Software License Agreement, all
sublicenses granted by CBOT and/or Ceres to other parties and all
rights pursuant to the Alliance Agreement and the Software License
Agreement to use the Eurex Software, the Documentation and any
Licensors Confidential Information are terminated; and
(ii) Ceres, and CBOT as sublicensee of Ceres, hereby expressly waive, as
of the Effective Date, all right, title and interest to
Modifications it still has as of the Effective Date, and hereby
assign any such right, title and interest to DBAG and SWX. Ceres
does not make and hereby disclaims all
Reorganization Agreement - Final
-14-
warranties of any kind including but not limited to, implied
warranties of title, non-infringement, merchantability and fitness
for a particular purpose, and shall have no liability in connection
with or arising out of the failure of the Modifications (1) to meet
the requirements of DBAG or SWX or to operate in configurations
selected by DBAG or SWX, (2) to operate in an environment selected
by DBAG, SWX or their assignees or sublicensees in an uninterrupted
or error-free manner, or (3) to conform to any performance
specifications, or in connection with or arising out of any ability
or inability to use the Modifications in connection with any of the
products or contracts traded (or failed to be traded) on any
exchange or by any users thereof. Ceres hereby warrants and
represents that other than itself, and CBOT as its sublicensee, no
member of the CBOT Group has any right, title and interest in the
Modifications.
The Parties acknowledge and agree that (i) there shall be no obligation
of any Party to make any payment under Section 3.4 of the AA for the use
of Modifications made at the sole expense of a Party belonging to the
other Group; for the avoidance of doubt this sentence is not intended to
confer any rights to any Party within the CBOT Group to use
Modifications, and that (ii) none of the events described in Section 2.5
of the SLA has occurred as of the Effective Date.
4.2 The Parties agree that, as of the Effective Date, CBOT, Ceres and all
other members of the CBOT Group shall have no right, title and interest
in the Common Source Code (as defined in the AA) and that neither CBOT,
nor Ceres nor any other member of the CBOT Group shall participate in any
revenues from the marketing and/or sub-licensing of Common Source Code by
DBAG and SWX. Section 7.5 of the AA shall have no effect following the
Effective Date.
4.3 Ceres shall, and shall ensure that all sub-licensees and any other
parties to which it has provided any portion of the Eurex Software, the
Documentation or Licensors Confidential Information (other than users of
the CBOT Electronic Market and their vendors, to the extent they are
using any such portion for the purposes of allowing the users of CBOT to
trade on the CBOT Electronic Market) shall, promptly return or destroy
all copies of the Eurex Software (including derivative
Reorganization Agreement - Final
-15-
work thereof), in all forms, including, without limitation, the Common
Source Code and any other source code, partial and complete, whether or
not modified or merged into other programs, other than and for so long as
required (i) for archival purposes pursuant to applicable regulatory
requirements, (ii) by law, or (iii) for the operation of the CBOT
Electronic Market under the Follow-up Agreements (excluding in this case
any source code). Ceres shall thereafter promptly deliver to DBAG and SWX
a written statement certifying its compliance with this requirement.
4.4 The rights granted to CBOT and Ceres under Section 5.2 of the MSDA and
Section 5.2 of the SOA to use the Tools (as defined in the MSDA and the
SOA) are terminated as of the Effective Date and CBOT's and Ceres' right
to use such Tools shall thereafter be governed by the NSLA.
4.5 To the extent DBS has granted to any other Party that is a party to the
SOA any security interest in the Hosts (as defined in the SOA) and the
equipment installed in the Access Points (as defined in the SOA) pursuant
to Section 5.4 of the SOA, such security interest is hereby released. For
the avoidance of doubt, this Agreement shall not affect DBS' ownership of
equipment used in connection with the provision of services under the
MSDA and the SOA.
4.6 As of the Effective Date, any obligation of DBS under Section 13 of each
of the MSDA and the SOA to an Ownership Party (as defined in the MSDA and
the SOA) shall be deemed exclusively an obligation to DBAG and SWX, and
not to Ceres, any other member of the CBOT Group or LLC. Section 4.1
shall apply with regard to (i) any Client Proprietary Rights (as defined
in the MSDA and the SOA) acquired by CBOT or Ceres pursuant to Section 13
of each of the MSDA and the SOA, (ii) any right, title and interest in
any source code provided by DBS to CBOT and/or Ceres in accordance with
Sections 13.4 MSDA and 13.3 SOA, (iii) any right, title and interest in
the Modifications acquired by CBOT or Ceres under the CRA, and (iv) any
right, title and interest in any work products or other items referred to
in Section 5 of the Interim Agreement.
Reorganization Agreement - Final
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4.7 In view of the Follow-up Agreements, the Parties hereby agree that
Sections 18.2,18.3 and 18.5 of each of the MSDA and the SOA shall not
apply following termination of the MSDA and the SOA.
4.8 The execution of this Agreement and the Follow-Up Agreements and the
termination of the Preexisting Agreements are not intended to impair the
day-to-day operation of the CBOT Electronic Market in any way.
4.9 Subject to the provisions contained elsewhere in this Agreement or any of
the Follow-up Agreements, but without limiting the effect of Section
4.9.7, the Parties agree on the following with regard to intellectual
property rights:
4.9.1 To the extent a Party in the Eurex Group holds or acquires an
interest in a patent, if any, related to the System, the Eurex
Software or any portion thereof, during the term of the Follow-up
Agreements, it hereby grants to Ceres and CBOT throughout the term
of the Follow-up Agreements a non-exclusive, non-transferable,
non-sublicensable right to use such patent only to provide and
support electronic trading facilities and services for the trading
of Eligible Derivatives (as defined in the NSLA) on the CBOT
Electronic Market, provided that the license fee for such patent
is included in the license fee specified in the Non-Exclusive
Software License Agreement.
4.9.2 Each member of the Eurex Group (i) warrants that, as of the
Effective Date, it has no direct, indirect, legal or beneficial
interest in any U.S. patent or U.S. patent application covering
the System, the Eurex Software or any portion thereof, and (ii)
agrees to notify CBOT promptly if it acquires any such interest
during the term of the Follow-Up Agreements.
4.9.3 The CBOT Group acknowledges the copyright of DBAG and SWX in the
Eurex Software.
4.9.4 The CBOT Group agrees not to use any of the trademarks or service
marks of the Eurex Group.
Reorganization Agreement - Final
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4.9.5 Each member of the Eurex Group acknowledges that, as of the
Effective Date, it has not sent out any warning letters to any
third parties claiming an infringement or misappropriation of its
intellectual property rights (including but not limited to rights
in patent, copyright, trademark, trade secrets or confidential
information) in connection with any electronic trading system for
derivatives and agrees to notify CBOT promptly if it does so during
the term of the Follow-up Agreements.
4.9.6 Each member of a Group acknowledges that during the course of the
Pre-Existing Agreements and the Follow-Up Agreements, the members
of the other Group have acquired or may acquire certain know-how
which is not Confidential Information of a member of the first
Group under the Pre-Existing Agreements or a Follow-Up Agreement.
Nothing in this Agreement, the Pre-Existing Agreements or the
Follow-Up Agreements shall be construed to prevent the use of such
know-how by the other Group during or after the term of the Follow-
Up Agreements.
4.9.7 Each member of the Eurex Group acknowledges that each member of the
CBOT Group is free to make use, after the end of the Follow-up
Agreements, to the extent that such use does not include the use of
the source code of the Eurex Software or any part thereof, of the
functional concepts underlying those Modifications paid for in
whole or in part by or on behalf of one or more members of the CBOT
Group.
4.9.8 To the extent that any member of the CBOT Group has any concern as
to whether any component of the electronic trading facilities which
are intended to replace the System after the end of the Follow-up
Agreements would result in a violation of any intellectual property
rights of any member of the Eurex Group, such member of the CBOT
Group may ask the DBAG Program Manager (as defined in the Software
Maintenance Agreement) to confirm whether or not such component
does in the view of the applicable member of the Eurex Group
violate such intellectual property. In the event any member of the
Eurex Group would, after the end of the Follow-up Agreements,
estimate that any component of the
Reorganization Agreement - Final
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electronic trading facilities which are intended by a member of
the CBOT Group to replace the system violate any intellectual
property rights of such member of the Eurex Group, such member of
the Eurex Group will, prior to initiating any legal action, give
the applicable members of the CBOT Group the opportunity to
comment on the alleged infringement.
5. Effective Date
This Agreement shall enter into effect upon the date of execution of the
last of this Agreement and all of the Follow-up Agreements by all of the
respective parties to such agreements (the "Effective Date").
6. Certain Restrictions
6.1 The Preexisting Agreements contain certain restrictions, covenants to
non-compete or clauses with similar aim or effect. The Parties agree that
none of these provisions shall survive or have any effect after the
termination of the Preexisting Agreements, unless expressly indicated in
this Agreement or any of the Follow-up Agreements as surviving such
termination of the respective Preexisting Agreement.
6.2 The Parties agree that for the time periods set forth in Section 6.2.3,
the following product restrictions (the "Product Restrictions") shall
apply:
6.2.1 Each Party within the Eurex Group agrees that neither it nor any
of its Affiliates will, without the prior written consent of the
CBOT, (i) trade or support a third party to trade CBOT Restricted
Products (as defined below) using the Eurex Software and/or the
Network (including for purposes of this Section 6.2.1, for the
avoidance of doubt, the iAccess connection alternative), or to
provide services to any third party trading CBOT Restricted
Products using the Eurex Software and/or the Network, (ii) enter
into or perform any significant business venture or arrangement
with any person if the purpose or effect of such business venture
or arrangement is to offer CBOT Restricted Products for trading or
to otherwise support such person in the offering of such products
for trading (including profit sharing
Reorganization Agreement - Final
-19-
or cost sharing related to the trading, or facilities for trading,
of CBOT Restricted products), including through participation with
such person as an Affiliate of or joint venturer with such person
that will engage in such activities, and (iii) offer trading of
any of the following CBOT products or the economic equivalent
("synthetic") thereof, to the extent such products have a notional
value denominated in, or settled in, the official currency of the
United States (the "CBOT Restricted Products"):
(a) 30 Year T-Bond Futures and Options on such Futures, 10 Year
Treasury Note Futures and Options on such Futures, 5 Year
Treasury Note Futures and Options on such Futures, 2 Year
Treasury Note Futures and Options on such Futures, 10 Year
Agency Futures and Options on such Futures, 5 Year Agency
Futures and Options on such Futures;
(b) Soybean Futures and Options on such Futures, Soybean Oil
Futures and Options on such Futures, Soybean Meal Futures and
Options on such Futures, Wheat Futures and Options on such
Futures, Corn Futures and Options on such Futures, Rough Rice
Futures and Options on such Futures, Oat Futures and Options
on such Futures, Cotton Futures and Options on such Futures,
Coffee Futures and Options on such Futures, Sugar Futures and
Options on such Futures, Cocoa Futures and Options on such
Futures, Orange Juice Futures and Options on such Futures,
Corn Yield Insurance Futures and Options on such Futures,
Wheat Yield Insurance Futures and Options on such Futures,
Soybean Yield Insurance Futures and Options on such Futures.
6.2.2 Each Party within the CBOT Group agrees that, neither it nor any
of its Affiliates will, without the prior written consent of Eurex
Zurich and Eurex Frankfurt, (i) trade or support a third party to
trade Eurex Restricted Products (as defined below) using another
software than the Eurex Software or another network than the
Network, or to provide services to any third party trading Eurex
Restricted Products using another software
Reorganization Agreement - Final
-20-
than the Eurex Software and for another network than the Network,
(ii) enter into or perform any significant business venture or
arrangement with any person if the purpose or effect of such
business venture or arrangement is to offer Eurex Restricted
Products for trading or to otherwise support such person in the
offering of such products for trading (including profit sharing or
cost sharing related to the trading, or facilities for trading, of
Eurex Restricted Products), including through participation with
such person as an Affiliate of or joint venturer with such person
that will engage in such activities, and (iii) offer trading of
any of the following products offered by Eurex Zurich or Eurex
Deutschland or the economic equivalent ("synthetic") thereof, to
the extent such products have a notional value denominated in, or
settled in, an official currency of either Germany or Switzerland
(the "Eurex Restricted Products"):
Bund Futures and Options, Bobl Futures and Options, ▇▇▇▇▇▇
Futures and Options.
6.2.3 The Product Restrictions shall end on the earliest of:
(a) December 31, 2003;
(b) the date of termination of the Follow-up Agreements;
(c) the date on which a Party belonging to the CBOT Group has
failed to comply with the Network Restriction (as defined
below); provided, however, that in such case only the Product
Restrictions on CBOT Restricted Products under Section 6.2.1
shall cease and both the Product Restrictions on Eurex
Restricted Products under Section 6.2.2 and the Network
Restriction (as defined below) shall continue to be binding;
provided that upon the occurrence of (a) or (b) above, the Product
Restrictions on CBOT Restricted Products shall continue to remain in
force for 30 days after the date on which the termination of the
Follow-up Agreements becomes effective. However, this 30 days
extension of the
Reorganization Agreement - Final
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Product Restrictions on CBOT Restricted Products shall continue to
remain in force for 30 days after the date on which the termination
of the Follow-up Agreements becomes effective. However, this 30 days
extension of the Product Restrictions shall not apply if the Follow-
up Agreements have been terminated by the applicable member of the
Eurex Group due to (i) a Change of Control, (ii) the non-payment of
any fees due by a member of the CBOT Group to any member of the Eurex
Group under any of the Follow-up Agreements, or (iii) the violation
of any obligation of a member of the CBOT Group, under this Agreement
or any of the Follow-up Agreements, relating to the intellectual
property or confidential information of a member of the Eurex Group.
6.3 Each Party within the CBOT Group agrees that it will (i) offer CBOT
Restricted Products for electronic trading only through the Network
provided to CBOT and Ceres by DBS under the New Systems Operations
Agreement, and (ii) not support, directly or indirectly, the offering of
electronic trading of CBOT Restricted Products by any third party other
than through the Network (the "Network Restriction"). The Network
Restriction shall end on the earliest of:
(a) December 31, 2003;
(b) the date of termination of the Follow-up Agreements; and
(c) the date on which a Party belonging to the Eurex Group has
failed to comply with the Product Restrictions on CBOT
Restricted Products; provided however, that the termination of
the Network Restriction under this subsection (c) would have no
effect on the Eurex Group's Product Restrictions on CBOT
Restricted Products, which would continue to be binding in
accordance with Section 6.2.3.
6.4 Each Party agrees to use its best efforts to cause the members of its
Group and its Affiliates to comply with the Product Restrictions and, in
case of the CBOT Group, the Network Restriction, it being understood that
a failure to comply with the Product Restrictions and the Network
Restriction by a member or an Affiliate of a Party within the CBOT Group
or the Eurex Group, as the case may be, shall be deemed a violation by
the Parties within the respective Group.
Reorganization Agreement - Final
-22-
6.5 In the event a Party, or an Affiliate of a Party, breaches its
obligations under the Product Restrictions or the Network Restriction,
such Party shall pay to the Parties within the other Group an amount of
(Euro) [**] per each trading day on which a breach occurs up to a maximum
amount (i) of (Euro) [**] per Group and trading day, and (ii) of (Euro)
[**] per Group and month. The payments provided for in this Section 6.5
shall in no way restrict the rights of a Party to enforce the Product
Restrictions and the Network Restriction or to claim damages in a higher
amount.
6.6 Each Party hereby acknowledges, on behalf of itself and its Affiliates,
that a material breach of the provisions of this Section 6 would cause
irreparable harm for which money damages could not make the injured Party
whole, and hereby consents, on behalf of itself and its Affiliates, to
any order entered by any arbitral tribunal or court of competent
jurisdiction prohibiting it from such violation or to any other available
equitable or injunctive relief. This paragraph is not intended to limit
in any way the availability of or the use of other legal or equitable
remedies by the Parties.
6.7 Notwithstanding Section 8.3 of the Non-Exclusive Software License
Agreement and Section 17.2.4 of each of the New Systems Operations
Agreement and the Software Maintenance Agreement, the members of each
Group acknowledge that, subject to the Network Restriction and the
Product Restrictions, the members of the other Group may negotiate,
execute and perform agreements with third parties, and may engage in the
development, testing, implementation and use of software, computer,
network, communications and other equipment, systems and procedures
during and after the term of this Agreement, including, but not limited
to, for the purpose of developing electronic trading systems to be used
by a Party after the termination of the Follow-Up Agreements or for the
offering of products not subject to the Network Restriction or the
Product Restrictions.
7. Joint Venture Entity
The shareholders of LLC will review and agree as appropriate by way of a
separate agreement on the future role of LLC and the further use of LLC's
trademark by the end of the second quarter of 2003. Until such separate
agreement is made, Ceres and CBOT shall
Reorganization Agreement - Final
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continue to use the trademark "a/c/e" for the CBOT Electronic Market as is
presently the case.
8. Outstanding Payments
8.1 As of the Effective Date, Ceres and CBOT shall promptly pay to DBS any
payments outstanding for services rendered by DBS to Ceres or CBOT under
the SOA or the MSDA; provided, however, that any amount shall become due
and payable only upon receipt of a corresponding invoice from DBS.
8.2 Without admitting any liability, CBOT and Ceres shall, as of the
Effective Date, pay to DBS within 10 days from the Effective Date the
amount of (Euro) [**] in full satisfaction of all claims of members of
the Eurex Group relating to Change Request 044 under the MSDA.
9. User Claims
9.1 The parties belonging to each Group (the "Indemnifying Group") will
indemnify and hold harmless each Entity (as defined in the AA) in the
other Group and/or their respective officers and directors (the
"Indemnified Persons") from and against any and all losses, claims,
damages, costs, expenses, liabilities and reasonable attorneys' fees
(collectively "Damages") awarded against any of the Indemnified Persons
as the result of, in connection with or relating to a Covered Claim (as
hereinafter defined) or incurred by any of them in connection with the
defense thereof, upon the terms set forth in this Section 9.
9.2 Promptly after receipt by any of the Indemnified Persons of notice of the
commencement of any Covered Claim, such Indemnified Person shall, if a
claim in respect thereof is to be made against the Indemnifying Group,
notify the Indemnifying Group in writing of the commencement thereof, but
the omission to notify the Indemnifying Group shall not relieve any
member of the Indemnifying Group from any liability which it may have to
any Indemnified Person otherwise than under this Section 9. If any action
is brought against any Indemnified Person and it has notified the
Indemnifying Group of the commencement thereof, the Indemnifying Group
shall be entitled to assume the defense thereof, with counsel
Reorganization Agreement - Final
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reasonably satisfactory to such Indemnified Person (which counsel shall
not, except with the consent of such Indemnified Person, which consent
shall not be unreasonably withheld, be counsel to any party in the
Indemnifying Group). An Indemnified Person shall cooperate fully in its
defense and shall execute such retention, joint defense (in the case of
multiple defendants) and standstill agreements as such counsel deems
reasonably appropriate for purposes of the Indemnified Person's defense.
An Indemnified Person shall have the right at its own expense, to
participate in its defense, provided, however, that, after notice from
the Indemnifying Group to such Indemnified Person of the Indemnifying
Group's election so to assume the defense of the action, the Indemnifying
Group shall not be liable to such Indemnified Person under this Section
9.2 for any legal expenses of other counsel. The Indemnified Person shall
have no right to consent to judgment or agree to a settlement of a
Covered Claim without the written consent of the Indemnifying Group,
which shall not be unreasonably withheld, unless the Indemnified Person
waives its right to defense and the indemnification hereunder. If the
Indemnifying Group or the Indemnified Person reasonably determines that a
conflict of interest has arisen in the representation by the attorneys
appointed by the Indemnifying Group, new counsel (reasonably satisfactory
to the Indemnified Person as aforesaid) shall be appointed by the
Indemnifying Group for the Indemnified Person at the Indemnifying Group's
expense. The Indemnifying Group shall not, without the prior written
consent of the Indemnified Persons, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by
such Indemnified Persons, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
the Covered Claim(s) that is the subject matter of such proceeding. Upon
satisfaction by the Indemnifying Group of its obligations to the
Indemnified Persons with respect to a Covered Claim, the Indemnified
Persons will assign to the Indemnifying Group any rights or causes of
action against any third parties available in connection with the Covered
Claim.
9.3 For purposes of the foregoing, a "Covered Claim" shall mean, as to the
Indemnifying Group, a claim brought by a user, member, lessee or equity
holder of
Reorganization Agreement - Final
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an Exchange within the Indemnifying Group, a client or customer of a
user, member, lessee or equity holder of such Exchange, or any other
person involved in or connected with the trading community of such
Exchange, in that person's capacity as such, and relating to or arising
out of the use of the System by any such person, on its own behalf or on
behalf or any other person, but shall not include any claim to the extent
that such claim:
(i) Is covered by insurance maintained by any of the Indemnified
Persons (but without obligation to maintain any such insurance); or
(ii) Arises out of or is attributable to:
(A) The gross negligence or willful misconduct of any of the
Indemnified Persons; or
(B) the violation by any Indemnified Person of regulatory
requirements (including antitrust, competition, U.S. Commodity
Exchange Act, telecommunications, international trade,
banking, tax, patent, etc.).
9.4 The Parties agree to include in the rules of their respective Exchanges
as appropriate, with respect to its users which are also users of the
other Group's Exchanges, commercially reasonable provisions which are
intended to minimize the liability of the members of the other Group to
the extent permitted by applicable law without resulting in an undue
burden on the Exchange or the users of the Exchanges within their
respective Groups.
9.5 For the avoidance of doubt, the provisions of this Section 9 shall also
apply with regard to, and during the term of, the Follow-up Agreements
and shall be deemed a provision surviving each of the Follow-Up
Agreements.
10. Warranties, Texas Case
10.1 Each of the Parties hereby represents and warrants to the others as
follows:
10.1.1 It has all requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated
hereby.
Reorganization Agreement - Final
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10.1.2 The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by all requisite corporate action on its part.
10.2 The Parties confirm their understanding that no Party belonging to one
Group and no Affiliates of such Party, shall have any liability to a
Party belonging to another Group, or an Affiliate of such Party,
including, without limitation, under this Agreement and any of the
Follow-up Agreements, arising out of or in connection with the U.S.
Patent No. 4,903,201 (the "Patent") or any claims asserted with respect
thereto, in the Texas Case or otherwise based upon the Patent. For
purposes of this Section 10.2, a Group is either the Eurex Group, the
CBOT Group, or LLC. Any provisions contained in any of the Preexisting
Agreements that expressly relate to the Patent and/or the Texas Case
shall survive the termination of such Preexisting Agreement.
10.3 Unless otherwise set forth elsewhere in this Agreement or any of the
Follow-up Agreements, each Party hereby releases each member of the other
Group from, and hereby expressly waives all claims asserted in writing by
the Effective Date, if existing at all, for losses, damages, liabilities
and costs of defense based on any claim arising under or in connection
with a Preexisting Agreement, including without limitation, a claim for
indemnification under the MSSA. For the avoidance of doubt, on the
Effective Date, the dispute resolution procedure invoked by the Eurex
Group on April 9, 2001 under Section 12.1 of the AA shall be deemed
resolved and all claims thereunder shall hereby be released.
11. General Provisions
11.1 The Parties shall, on the Effective Date, issue the press release
attached hereto as Exhibit D. No Party shall issue or approve the
issuance of any other press release, or other public communication,
relating to this Agreement, the Preexisting Agreements or the Follow-up
Agreements, and in particular the revised scope of the relationship
between the Parties unless required by law, including applicable law
regarding securities disclosure.
Reorganization Agreement - Final
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11.2 The entire agreement and understanding between and among the Groups
consists of (a) this Agreement; (b) the Follow-Up Agreements (including
all schedules and exhibits thereto) and (c) those provisions of the
Preexisting Agreements that survive their termination and do not conflict
with this Agreement. There are no written or oral side agreements. In the
event of a conflict between a provision of this Agreement and a provision
of a Follow-Up Agreement, this Agreement shall control. No change,
modification or amendment to this Agreement shall be of any force or
effect unless it is approved in writing by all of the Parties and dated
subsequent to the date hereof. The preceding sentence also applies with
regard to a change, modification or amendment to the preceding sentence.
11.3 The provisions of this Agreement are severable and the unenforceability
of any provision of this Agreement shall not affect the enforceability of
any other provision hereof. In addition, in the event that any provision
of this Agreement (or portion thereof) is determined by a court of
competent jurisdiction, an arbitral award obtained pursuant to Section
11.7 or any regulatory authority having jurisdiction to be unenforceable
as drafted by virtue of the scope, duration, extent or character of any
obligation contained therein, it is the mutual agreement of the Parties
that such provision (or portion thereof) shall be construed in a manner
designed to effectuate the purpose of such provision to the maximum
extent enforceable under applicable law. If such construction is not
possible, the Parties undertake, to the extent reasonably possible, to
modify such provision in order to implement the purposes of such
provision as fully as possible.
11.4 No Party may assign this Agreement or any portion hereof, by Change of
Control, operation of law or otherwise, without obtaining the prior
written consent of the other Parties. The Parties will grant their
consent to the assignment of rights or obligations by a party to an
Affiliate of such Party if (i) the assigning Party remains liable for any
assigned obligations as a jointly and severally liable guarantor
(selbstschuldnerische Burgschaft) with the assignee, (ii) the assigning
party, together with its rights and obligations under this Agreement,
assigns its rights and obligations, if any, under the Non-exclusive
Software License Agreement, the Software Maintenance Agreement and the
New Systems Operations Agreement to the assignee, or (iii) in the case of
Ceres being the assigning Party, CBOT assumes
Reorganization Agreement - Final
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a performance guarantee as set forth in Section 11.5 with regard to the
assignee. The exceptions to the definition of "Change of Control" for
CBOT and SWX do not require the consent of the other Parties under this
Section 11.4. For the avoidance of any doubt, the above shall not entitle
a Party to invoke a preliminary injunction or to seek any other remedy in
order to prevent the occurrence of a Change of Control.
11.5 CBOT hereby unconditionally and irrevocably guarantees to each Party
belonging to the Eurex Group the full and timely performance by Ceres,
and all of Ceres' permitted assigns or legal successors (individually and
collectively referred to as "Ceres"), of all of Ceres' obligations under
or pursuant to this Agreement to a member of the Eurex Group as and when
the same shall be due to be performed under this Agreement, and all
liabilities of Ceres under this Agreement in the event of any breach by
Ceres of any term hereof. CBOT hereby waives any provision of any
statute, regulation or judicial decision otherwise applicable hereto
which restricts or in any way limits the rights of an obligee against a
guarantor or surety following a default of failure of performance by an
obligor with respect to whose obligations the guarantee or surety is
provided. The Parties belonging to the Eurex Group may proceed to protect
and enforce any or all of their rights under this Section 11.5 pursuant
to Section 11.7, whether for the specific performance of any covenants or
agreements of Ceres under or pursuant to this Agreement, and shall be
entitled to require and enforce the performance by CBOT of all acts and
things required to be performed hereunder by Ceres. CBOT shall not be
entitled to and does hereby waive any and all defenses now or hereafter
available to guarantors, sureties and other secondary parties at law or
in equity, with the exception of any defense Ceres may have against the
Parties belonging to the Eurex Group that are available to CBOT. The
Parties belonging to the Eurex Group shall be entitled to proceed on
first demand directly against CBOT in respect of any performance
obligations hereunder without any requirement that it first make any
demand against or exhaust any remedies available to it from Ceres or to
take any other steps.
11.6 This Agreement shall be governed by and subject to the laws of the
Federal Republic of Germany, to the exclusion of the conflicts of law
rules. This choice of
Reorganization Agreement - Final
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law clause does not intend to modify the governing law of any of the
Preexisting Agreements or amendments thereunder.
11.7 Except with regard to actions seeking temporary or permanent injunctive
relief, any dispute arising under or in connection with this Agreement
between or among any Parties to this Agreement will be finally settled by
arbitration in accordance with the arbitration rules of the United
Nations Convention on International Trade Law (the "UNCITRAL Rules").
11.7.1 The arbitration will be conducted by three (3) arbitrators. Such
arbitrators are to be appointed in accordance with Article 7 of
the UNCITRAL Rules.
11.7.2 Where there are multiple parties, whether as Claimant or as
Respondent the multiple Claimants, jointly, and the multiple
Respondents, jointly, shall nominate an arbitrator pursuant to
Article 7 of the UNCITRAL Rules. In the absence of such a joint
nomination and where all parties are unable to agree to a method
for the constitution of the Arbitral Tribunal, the London Court
of International Arbitration (the "Appointing Authority" for the
purposes of the application of the UNCITRAL Rules) may appoint
each member of the Arbitral Tribunal and shall designate one of
them to act as chairman. In such case the Appointing Authority
shall be at liberty to choose any person it regards as suitable
to act as arbitrator.
11.7.3 The place of arbitration shall be London. The proceedings shall
be conducted in the English language exclusively.
11.7.4 The parties acknowledge that irreparable damage may occur in the
event of breach of any of the terms of this Agreement.
11.8 The Parties agree that Sections 15.1, 15.2 and 15.3 of each of the New
Systems Operations Agreement and the Software Maintenance Agreement apply
mutatis mutandis.
11.9 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which
taken together shall constitute one and the same agreement.
Reorganization Agreement - Final
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Deutsche Borse AG SWX Swiss Exchange
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ -----------------------------
Date: 7/11/02 Date: 7/11/02
------------------------------ -----------------------------
Board of Trade of the City of Chicago, Inc. Ceres Trading Limited Partnership, by
Electronic Chicago Board of Trade, Inc., its
managing general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -----------------------------
Date: 7/10/02 Date: 7/10/02
------------------------------ -----------------------------
Electronic Chicago Board of Trade, Inc. Ceres Alliance, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:
------------------------------ -----------------------------
Date: 7/10/02 Date:
------------------------------ -----------------------------
CBOT/Eurex Alliance, L.L.C. Eurex Beteiligungen AG
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: 7/10/02 Date: 7/11/02
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Eurex Frankfurt AG Eurex Zurich AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: 7/11/02 Date: 7/11/02
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Reorganization Agreement - Final
-31-
Eurex Deutschland Eurex Clearing AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: 7/11/02 Date: 7/11/02
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Deutsche Borse Systems AG
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: 7/11/02
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Reorganization Agreement - Final