As filed with the Securities and Exchange Commission on July 31, 2002
Registration No. 333-60266
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-4459170
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
30 South Wacker Drive
Chicago, Illinois 60606
(312) 930-1000
(Address of Principal Executive Offices)
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
AMENDED AND RESTATED OMNIBUS STOCK PLAN
(Full Title of Plan)
Craig S. Donohue, Esq.
Managing Director and Chief Administrative Officer
Chicago Mercantile Exchange Holdings Inc.
30 South Wacker Drive
Chicago, Illinois 60606
(312) 930-1000
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to the
Registration Statement on Form S-8 (Registration No. 333-60266) of Chicago
Mercantile Exchange Inc., a Delaware corporation ("CME"), is being filed by
Chicago Mercantile Exchange Holdings Inc., a Delaware corporation (the
"Company"), pursuant to Rule 414 under the Securities Act of 1933, as
amended (the "Securities Act"), to reflect the adoption by CME of a holding
company organizational structure. The holding company organizational
structure was implemented in accordance with Section 251 of the Delaware
General Corporation Law (the "DGCL") pursuant to an Agreement and Plan of
Merger, dated as of October 1, 2001 (the "Merger Agreement"), by and among
the Company, CME and CME Merger Subsidiary Inc., a Delaware corporation and
wholly owned subsidiary of the Company ("MergerSub").
Pursuant to the terms and subject to the conditions of the Merger
Agreement and in accordance with Section 251 of the DGCL, effective on
December 3, 2001, MergerSub was merged with and into CME (the "Merger"). At
the effective time of the Merger, CME continued as the surviving entity and
as a wholly owned subsidiary of the Company and the separate corporate
existence of MergerSub ceased in accordance with the DGCL. Pursuant to the
Merger Agreement, each share of Class A common stock, par value $.01 per
share, of CME ("CME Class A common stock") issued and outstanding
immediately prior to the Merger was converted into four shares of Class A
common stock, par value $.01 per share, of the Company ("Company Class A
common stock") as follows: one share of Class A-1, one share of Class A-2,
one share of Class A-3 and one share of Class A-4. In addition, each share
of Class B common stock, par value $.01 per share, of CME ("CME Class B
common stock," and together with the CME Class A common stock, the "CME
common stock") issued and outstanding immediately prior to the Merger was
divided into two pieces: Company Class A common stock in an amount of
shares essentially the same as the Class A share equivalents that were
embedded in that share of CME Class B common stock, and one share of Class
B common stock, par value $.01 per share, of the Company ("Company Class B
common stock," and together with the Company Class A common stock, the
"Company common stock") that corresponds to the series of CME Class B
common stock surrendered in the Merger. The CME Class B common stock was
converted into Company common stock as follows: (i) each share of CME
Series B-1 common stock, par value $.01 per share, was automatically
converted into (a) one share of the Company's Class B-1 common stock, par
value $.01 per share, and (b) 1,799 shares of Company Class A common stock;
(ii) each share of CME Series B-2 common stock, par value $.01 per share,
was automatically converted into (a) one share of the Company's Class B-2
common stock, par value $.01 per share, and (b) 1,199 shares of Company
Class A common stock; (iii) each share of CME Series B-3 common stock, par
value $.01 per share, was automatically converted into (a) one share of the
Company's Class B-3 common stock, par value $.01 per share, and (b) 599
shares of Company Class A common stock; and (iv) each share of CME Series
B-4 common stock, par value $.01 per share, was automatically converted
into (a) one share of the Company's Class B-4 common stock, par value $.01
per share, and (b) 99 shares of Company Class A common stock.
Additionally, the Company assumed all the rights and obligations
of CME under the Chicago Mercantile Exchange Omnibus Stock Plan and any
other plan or agreement providing for the grant or award to employees or
directors of options or other rights to purchase or receive CME common
stock or any payment in respect thereof as each such plan or agreement was
amended at the effective time of the Merger. Each outstanding option and
other award assumed by the Company is exercisable or issuable upon the same
terms and conditions as were in effect immediately prior to the effective
time of the Merger. The amount of Company common stock issuable upon the
exercise or issuance of such an option or award immediately after the
effective time of the Merger equals the amount of CME common stock subject
to the option prior to the effective time of the Merger. Such Company
common stock will be allocated ratably amongst each class of Company Class
A common stock in accordance with the conversion terms described above and
the option price of each such option or award is equal to the option price
applicable to the option prior to the effective time of the Merger. All
options and awards issued pursuant to any plan or agreement assumed by the
Company after the effective time of the Merger shall entitle the holder
thereof to purchase Company common stock in accordance with the terms of
such plan or agreement as in effect on the date of issuance.
In accordance with Rule 414 under the Securities Act, the Company,
as the successor issuer to CME, hereby expressly adopts Registration
Statement No. 333-60266 on Form S-8 as its own for all purposes of the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The Chicago Mercantile Exchange Omnibus Stock Plan, to
which this Registration Statement relates, shall be known as the Chicago
Mercantile Exchange Holdings Inc. Amended and Restated Omnibus Stock Plan
(the "Plan"). The Plan covers employees of the Company and its subsidiaries
(including CME), and shares of stock issued in accordance with the Plan
will be shares of Company common stock instead of shares of CME common
stock.
The applicable registration fees were paid at the time of the
original filing of the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by the Company are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 (File No. 00-33379).
(b) The Company's Form 10-K/A, filed with the Commission on June
10, 2002 (File No. 00-33379).
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2002 (File No. 00-33379).
(d) The description of the Company's common stock contained in the
Company's Registration Statement on Form S-1, filed with the Commission on
June 10, 2002 (File No. 33-90106).
(e) The description of the Company's Preferred Stock Purchase
Rights contained in the Company's Registration Statement on Form 8-A, filed
with the Commission on December 4, 2001 (File No. 00-33379).
(f) The Company's Current Report on Form 8-K, filed with the
Commission on February 5, 2002 (File No. 00-33379).
(g) The Company's Current Report on Form 8-K, filed with the
Commission on March 28, 2002 (File No. 00-33379).
(h) The Company's Current Report on Form 8-K, filed with the
Commission on May 16, 2002 (File No. 00-33379).
(i) The Company's Current Report on Form 8-K, filed with the
Commission on May 17, 2002 (File No. 00-33379).
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of DGCL authorizes a court to award or a corporation's
board of directors to grant indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under some circumstances
for liabilities arising under the Securities Act and to provide for the
reimbursement of expenses incurred.
As permitted by the Delaware law, Article XI of the Company's
certificate of incorporation and Article IX of the Company's bylaws provide
that (1) the Company is permitted to indemnify its directors, officers and
other employees to the fullest extent permitted by Delaware law; (2) the
Company is permitted to advance expenses, as incurred, to its directors,
officers and other employees in connection with defending a legal
proceeding if the Company has received in advance an undertaking by the
person receiving such advance to repay all amounts advanced if it should be
determined that he or she is not entitled to be indemnified by the Company;
and (3) the rights conferred in the bylaws are not exclusive. As permitted
by the DGCL, the Company's certificate of incorporation includes a
provision that eliminates the personal liability of its directors for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to the
Company or its shareholders; (2) for acts of omissions not in good faith or
that involve intentional misconduct or a knowing violation of law; (3)
under Section 174 of the DGCL (regarding payments of dividends; stock
purchases or redemptions which are unlawful); or (4) for any transaction
from which the director derived an improper personal benefit. This
provision in the certificate of incorporation does not eliminate the
directors' fiduciary duty, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will
continue to be subject to liability for breach of the director's duty of
loyalty to the Company for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for actions leading
to improper personal benefit to the director and for payment of dividends
or approval of stock repurchases or redemptions that are unlawful under
Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws
or state or federal environmental laws.
In addition to the above, the Company also maintains indemnity
insurance pursuant to which officers and directors are indemnified or
insured against liability or loss under certain circumstances, which may
include liability or related loss under the Securities Act and the Exchange
Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
A list of exhibits included as part of this Registration Statement
is set forth in the Exhibit Index appearing elsewhere herein and is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on
this 31st day of July 2002.
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
Registrant
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
Date: July 31, 2002 By: /s/ James J. McNulty
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James J. McNulty
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors of Chicago Mercantile Exchange
Holdings Inc., do hereby constitute and appoint Craig S. Donohue our true
and lawful attorney-in-fact and agent, to do any and all acts and things in
our names and on our behalf in our capacities as directors and to execute
any and all instruments for us and in our name in the capacities indicated
below, which said attorney and agent may deem necessary or advisable to
enable said Registrant to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this registration statements, or any
registration statement related hereto that is to be effective upon filing
pursuant to Rule 462 under the Securities Act of 1933, including
specifically, but without limitation, power and authority to sign for us or
any of us in our names in the capacities indicated below, any and all
amendments (including post-effective amendments) hereof; and we do hereby
ratify and confirm all that said attorney and agent shall do our cause to
be done by virtue thereof
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on July 31, 2002.
Signature Title
/s/ James J. McNulty President and Chief Executive Officer
---------------------------- and Director
James J. McNulty
/s/ Terrence A. Duffy Chairman of the Board and Director
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Terrence A. Duffy
/s/ David G. Gomach Managing Director and Chief Financial
--------------------------- Officer
David G. Gomach
/s/ Nancy W. Goble Managing Director and Chief Accounting
--------------------------- Officer
Nancy W. Goble
/s/ Timothy R. Brennan Director
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Timothy R. Brennan
/s/ John W. Croghan Director
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John W. Croghan
/s/ Martin J. Gepsman Director
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Martin J. Gepsman
/s/ Daniel R. Glickman Director
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Daniel R. Glickman
/s/ Scott Gordon Director
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Scott Gordon
/s/ Yra G. Harris Director
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Yra G. Harris
/s/ Bruce F. Johnson Director
---------------------------
Bruce F. Johnson
/s/ Gary M. Katler Director
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Gary M. Katler
/s/ Patrick B. Lynch Director
---------------------------
Patrick B. Lynch
/s/ Leo Melamed Director
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Leo Melamed
/s/ John D. Newhouse Director
----------------------------
John D. Newhouse
/s/ James E. Oliff Director
----------------------------
James E. Oliff
/s/ William G. Salatich, Jr. Director
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William G. Salatich, Jr.
/s/ John F. Sandner Director
---------------------------
John F. Sandner
/s/ Myron Scholes Director
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Myron S. Scholes
/s/ Verne O. Sedlacek Director
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Verne O. Sedlacek
/s/ William R. Shepard Director
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William R. Shepard
/s/ Howard Siegel Director
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Howard J. Siegel
INDEX TO EXHIBITS
Exhibit Number Description
10.1 Chicago Mercantile Exchange Holdings Inc. Amended and
Restated Omnibus Stock Plan, amended and restated
effective as of April 23, 2002.
23.1 Consent of Arthur Andersen LLP (incorporated by
reference to Exhibit 23.1 of the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 2001 (File No. 00-33379)).
24.1 Powers of Attorney (included on signature page).