Patent License Agreement

Exhibit 10.16

PATENT LICENSE AGREEMENT

THIS AGREEMENT is made this 29th day of March 2002, (" Effective Date" ) by and between eSpeed, Inc., a corporation organized and existing under the laws of the State of Delaware, having a place of business at 299 Park Avenue, 29th Floor, New York, New York, 10171-0002 (hereinafter referred to as " eSpeed" ), and Intercontinental-Exchange, Inc., a corporation organized and existing under the laws of the State of Delaware, having a place of business at 2100 RiverEdge Parkway, Fifth Floor, Atlanta, Georgia, 30328 (hereinafter referred to as " ICE" together with certain affiliated entities as further defined below).

WHEREAS, eSpeed has the right to provide a license under a certain patent as herein identified; and

WHEREAS, ICE desires to obtain, and eSpeed is willing to grant ICE, a non-exclusive license as hereafter defined and under the terms and conditions herein specified.

NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained eSpeed and ICE agree as follows:

TERMS

1. DEFINITIONS

1.1 " Days" shall mean calendar days.

1.2 " Electronic Futures Contract" shall mean a legally binding agreement occurring in an Electronic Futures Exchange (as defined below) to transfer a commodity sometime in the future, including derivatives (e.g., cash settled agreements) and options on such agreements (but excluding forward contracts, over-the-counter swaps, over-the-counter options and other types of over-the-counter bilateral transactions), wherein the agreement is of a type regulated by the Commodity Futures Trading Commission (" CFTC" ), any successor agency or alternative United States Federal agency, or would be regulated by the CFTC or such agency under the Commodity Exchange Act or other act if an electronic marketplace for such agreements has sufficient activities in the Licensed Territory.

1.3 " Electronic Futures Exchange" shall mean an electronic marketplace which is registered as a designated contract market under the Commodity Exchange Act or receives comparable or successor regulatory recognition and where participants (and/or their agents) can enter into electronic transactions with respect to Electronic Futures Contracts.

1.4 " Electronic Side" shall mean an action by one participant (and/or an agent for a participant) in an Electronic Futures Exchange for the purpose of entering into an Electronic Futures Contract.


1.5 " Electronic Trade" shall mean an electronic transaction involving two or more Electronic Sides carried out in an Electronic Futures Exchange.

1.6 " eSpeed Related Entity" shall mean any entity having (1) common ownership or (2) controlling, controlled by or under common control with eSpeed, and specifically including TradeSpark L.P. and Cantor Fitzgerald L.P. as well as any entities having (1) common ownership or (2) controlling, controlled by or under common control with either of them.

1.7 " ICE" shall mean the Intercontinental-Exchange, Inc. and ICE Affiliates.

1.8 " ICE Affiliates" shall mean any corporation or other legal entity at least fifty percent (50%) of whose voting interests (whether in the form of shares or other voting interests) are owned or directly or indirectly controlled by or under common control with the Intercontinental-Exchange, Inc., or any corporation or other legal entity as to which the Intercontinental-Exchange, Inc. has the power to elect a majority of its governing board, as of the Effective Date of this Agreement or at any time during the term of this Agreement; provided that The New York Mercantile Exchange (NYMEX), its affiliates or subsidiaries, and each of their respective successors or assigns, shall not be considered an ICE Affiliate under any circumstances, and shall not be considered an ICE Affiliate even in the event they would otherwise hereafter qualify as an ICE Affiliate under this definition; further provided that The Chicago Board of Trade (CBOT), its affiliates or subsidiaries, and each of their respective successors or assigns, shall not be considered an ICE Affiliate under any circumstances, and shall not be considered an ICE Affiliate even in the event they would otherwise hereafter qualify as an ICE Affiliate under this definition; further provided that The Chicago Mercantile Exchange (CME), its affiliates or subsidiaries, and each of their respective successors or assigns, shall not be considered an ICE Affiliate under any circumstances, and shall not be considered an ICE Affiliate even in the event they would otherwise hereafter qualify as an ICE Affiliate under this definition; and further provided that the International Petroleum Exchange (" IPE" ) shall be specifically considered an ICE Affiliate so long as it qualifies as an ICE Affiliate under this definition.

1.9 " ICE' s Electronic Futures Exchange" shall mean an Electronic Futures Exchange (as updated or modified from time to time in ICE' s sole discretion) owned and operated by ICE which ICE intends to use as an electronic marketplace for Electronic Sides and Electronic Trades. This definition does not include any other Electronic Futures Exchange such as an Electronic Futures Exchange as to which ICE may have an ownership interest, a controlling interest (whether by exercise of voting rights or through an exercise of other interests) and/or operational responsibility, and does not include any Electronic Futures Exchange that is, as of the date of this Agreement, registered with the Commodity Futures Trading Commission as a designated contract market, provided that ICE' s Electronic Futures Exchange shall include any Electronic Futures Exchange owned and operated by any ICE Affiliates.

1.10 " Licensed Activity" shall mean an activity by which ICE' s Electronic Futures Exchange is used to enter an Electronic Side or transact an Electronic Trade in the Licensed Territory. For the convenience of the parties, and in view of their difficulty in determining the situs of an Electronic Trade and an Electronic Side in ICE' s Electronic

2


Futures Exchange, the parties shall consider: (I) all Electronic Sides for which the participant (and/or an agent for a participant) is within the Licensed Territory; and (2) all Electronic Trades of an Electronic Futures Contract for commodities subject to delivery or settlement in the Licensed Territory, as Electronic Sides and Electronic Trades under the Licensed Patent in the Licensed Territory for purposes of this Agreement (hereinafter referred to as " Licensed Electronic Sides" and/or " Licensed Electronic Trades" ).

1.11 " Licensed Field of Use" shall mean Electronic Futures Contracts for the following commodities: petroleum and petroleum products, coal, natural gas, electricity, precious and base metals, weather based products, and sulfur and nitrogen based pollution allowance products. In addition to all other commodities not expressly included in the Licensed Field of Use, commodities such as financial products (interest rate based products, such as Treasuries and Eurodollars, equity based products, such as S&P, and the like) and agricultural based products are specifically not included; provided, however, that bonafide financial products, related to the commodities listed above, e.g., a bonafide, (e.g., cash settled) financial natural gas product, are included in the Licensed Field of Use.

1.12 " Licensed Patent" shall mean United States Patent No. 4,903,201.

1.13 " Licensed Territory" shall mean the United States and all of its territories and possessions.

2. LICENSE GRANT

2.1 Subject to the terms and conditions hereof, and to ICE making the payments required under Section 3, eSpeed hereby grants to ICE a royalty bearing, non-exclusive, personal, non-transferable, right and license to conduct Licensed Activities under the Licensed Patent in the Licensed Field of Use. Under the terms of this Agreement, ICE' s customers shall have an implied license to conduct Licensed Activities under the Licensed Patent in the Licensed Field of Use.

2.2 Nothing in this Agreement shall be construed to grant to ICE the right to grant a sublicense under the Licensed Patent. The right to sublicense is specifically excluded from this Agreement.

2.3 (a) Subject to ICE making the payments required under Section 3.2 during the life of this Agreement, eSpeed further represents, covenants and agrees that neither eSpeed nor any entity directly or indirectly controlled by eSpeed will bring suit or otherwise assert a claim for infringement of any claim of the Licensed Patent in the Licensed Field of Use, or any United States and foreign patents now held or hereafter acquired by eSpeed which would be necessarily infringed by ICE upon practicing any claim of the Licensed Patent in the Licensed Field of Use, against ICE, or its shareholders, directors, officers or agents, or any of their participants (only insofar as each is acting in their respective capacities with ICE), before any court or administrative agency in any country of the world based on or arising out of any Licensed Activity conducted by ICE and by any of its customers in the Licensed Field of Use; provided that ICE shall not use or assist others in using the Licensed Patent beyond the Licensed Activities. The covenant in this Section 2.3(a) with respect to hereafter acquired patents

3


which eSpeed may acquire from third parties shall be subject to the mutual agreement of the parties on the terms of a licensing agreement, if appropriate.

(b) The release and covenant not to sue provided in this Section 2.3, as well as any other releases or covenants not to sue set out in this Agreement, shall bind any assignee or other person to whom any interest in the Licensed Patent may be conveyed.

3. ROYALTY AND PAYMENTS

3.1 In consideration for the rights granted ICE under this Agreement, ICE agrees to pay eSpeed as follows:

(a) on April 5, 2002, ICE shall pay eSpeed an initial payment of two million dollars ($2,000,000);

(b) on each successive April 1st (the Anniversary Date), ICE shall pay an annual minimum payment of two million dollars ($2,000,000);

(c) in addition to the annual minimum payment made pursuant to Section 3.1(b), in the event the number of Electronic Futures Contracts involved in Licensed Electronic Sides or Licensed Electronic Trades, whichever is greater, exceeds 25,000,000 in any given year measured from the Anniversary Date, ICE shall pay eSpeed an additional payment of two million dollars ($2,000,000). For each additional 25,000,000 Electronic Futures Contracts involved in Licensed Electronic Sides or Licensed Electronic Trades that occur in a given year, again measured from the Anniversary Date, ICE shall pay eSpeed additional payments of two million dollars ($2,000,000). (For example, if during a given year of this Agreement 75,000,001 Electronic Futures Contracts are made on ICE' s Electronic Futures Exchange, ICE shall pay eSpeed a total of eight million dollars ($8,000,000) that year. These payments should be made as follows: $2,000,000 on April 1st of the year; $2,000,000 when the number of Electronic Futures Contracts reach 25,000,001; $2,000,000 when the number of Electronic Futures Contracts reach 50,000,001; and $2,000,000 when the number of Electronic Futures Contracts reach 75,000,001.) Th ...