Exhibit 10.28
Confidential Materials omitted and filed
separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
Asterisks denote omissions.
Confidential
FOURTH AMENDMENT TO
LICENSE AGREEMENT DATED
June 5, 1997
This Fourth Amendment, dated as of December 19, 2001, to the License
Agreement dated June 5, 1997 made by and between Dow Xxxxx & Company, Inc. ("Dow
Xxxxx"), having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the
Board of Trade of the City of Chicago ("CBOT"), having an office at 000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, as previously amended by an
Amendment to the License Agreement dated as of September 9, 1997 (the "First
Amendment") and a Second Amendment to the License Agreement dated as of February
18, 1998 ("Second Amendment") and a Third Amendment to the License Agreement
dated as of May 1998 (the "Third Amendment") (the "License Agreement").
WHEREAS, the parties would like to amend certain terms and conditions
of the License Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the License Agreement, it is
agreed as follows:
1. Section 2 of the License Agreement shall be deleted in its
entirety and replaced with the following new Section 2:
"2. Term
The term of this Agreement shall commence as of the Effective Date
and shall remain in full force and effect until the close of business on
October 4, 2002, unless this Agreement is terminated earlier as provided
herein (such term being referred to herein as the "Initial Term"). Upon the
expiration of the Initial Term (other than by reason of termination of this
Agreement as provided herein), this Agreement shall be renewed for an
additional term, which shall expire on December 31, 2007, unless this
Agreement is terminated earlier as provided herein (the "Renewal Term").
2. Effective with the commencement of the Renewal Term, Schedule C
to the License Agreement shall be deleted in its entirety and replaced with the
Replacement Schedule C attached to this Amendment.
3. Section 5(e) of the License Agreement shall be deleted in its
entirety.
4. Section 1(c) of the License Agreement shall be amended by
deleting the first sentence thereof.
5. Section 1(d) of the License Agreement shall be amended by
deleting the reference to "60 days" and replacing it with "30 days".
6. Section 1(e) of the License Agreement shall be amended by
deleting the reference to "60 days" and replacing it with "30 days".
7. Notwithstanding anything to the contrary in the License
Agreement, during the Renewal Term, a "Year" shall mean a calendar year
commencing on January 1.
8. Except as otherwise expressly set forth herein, all provisions
of the License Agreement shall remain in full force and effect. Except as
otherwise specified herein, all capitalized terms used in this Amendment shall
have the meaning ascribed to them in the License Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the License Agreement to be executed as of the date first set forth above.
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
_____________________________________
Name: Xxxxx X. Xxxxx
Title: President, Dow Xxxxx Indexes
Date: December 19, 2001
BOARD OF TRADE
OF THE CITY OF CHICAGO, INC.
By: /s/ Xxxxx X. Xxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Date: December 19, 2001
2
REPLACEMENT SCHEDULE C
LICENSE FEES
------------
Licensee shall pay license fees in accordance with the following:
During each Year of the Renewal Term, commencing on January 1, 2003, Licensee
shall pay to Dow Xxxxx a flat annual minimum payment of [**], payable in equal
quarterly payments of [**] (each, a "Quarterly Minimum Payment"). Each Quarterly
Minimum Payment shall be payable quarterly in advance. Prior to the commencement
of the Renewal Term, Licensee shall make a prorated payment of the Quarterly
Minimum Payment in the amount of [**] (the "Prorated Payment") for the period
commencing on the first day of the Renewal Term and ending on December 31, 2002
(the "Prorated Period").
In addition, in each Year, the Licensee will pay to Dow Xxxxx, or the Dow Xxxxx
affiliate designated by Dow Xxxxx, a fee (the "Per Transaction Fee") equal to
[**].
Within 10 days after the end of each calendar quarter after the beginning of the
Renewal Term, the Licensee will provide to Dow Xxxxx a written report of the
trading volume for each Product for such quarter or, in the case of the Prorated
Period, portion of a quarter (each, a "Quarterly Report"), together with a
calculation of the amount of the Per Transaction Fees for such quarter. At such
time(s) during any Year that the cumulative Per Transaction Fees exceed the
Quarterly Minimum Payments paid thus far in respect of such Year, the Licensee
will make payment of such excess amount at the time it provides the Quarterly
Report for such quarter.
For the avoidance of doubt, Licensee will pay to Dow Xxxxx or to the Dow Xxxxx
affiliate designated by Dow Xxxxx, a Per Transaction Fee for the Prorated Period
equal to [**].
All amounts will be paid in cash and will be non-refundable.
The terms hereof shall be deemed "Confidential Information" for purposes of
Section 7(c) of this Agreement.