EXHIBIT
10.6


 


Portions of this exhibit have been omitted pursuant to
a request for confidential treatment filed with the Securities and Exchange
Commission. The omissions have been indicated by the phrase “[*confidential
treatment requested/material filed separately*]”, and the omitted text has been
filed separately with the Securities and Exchange Commission.


 


AMENDMENT NO. 5 TO LICENSE
AGREEMENT


 


This Amendment No. 5 to the Restated License
Agreement effective as of November 1, 1994 as previously amended by
Amendment No. 1 thereto dated January 15, 1995, Amendment No. 2
thereto dated April 1, 1998, Amendment No. 3 thereto dated July 28,
2000, and Amendment No. 4 thereto dated October 27, 2000 (such
Amendment, “Amendment No. 4,” and such Restated License Agreement together
with such Amendments, collectively, the “License Agreement”), is made as of the
1st day of March, 2003, by and between STANDARD & POOR’S (“S&P”),
a division of The McGraw-Hill Companies, Inc., a New York corporation
having an office at 55 Water Street, New York, New York 10041, and the CHICAGO
BOARD OPTIONS EXCHANGE, INCORPORATED (“CBOE”), having an office at 400 South
LaSalle, Chicago, Illinois 60605.


 


W I T N E S S E T H:


 


WHEREAS, in Amendment No. 4, among other
things, CBOE agreed to permit S&P to grant licenses in respect of the
S&P 100 Index for use as the underlying interest of ETFs, provided that the
issuer of any such ETFs agree to list the ETFs on CBOE exclusively; and


 


WHEREAS, the parties now desire to modify the
License Agreement to permit S&P to enter into license agreements with other
Organized Securities Markets that desire to use the S&P Marks and/or the
S&P 100 Index in connection with the unlisted trading of any such ETFs.


 


NOW, THEREFORE, the parties hereto agree as follows:


 


1.             Capitalized
terms used but not defined herein shall have the meanings ascribed thereto in
the License Agreement.


 

















 


Portions of this exhibit have been omitted pursuant to
a request for confidential treatment filed with the Securities and Exchange Commission.
The omissions have been indicated by the phrase “[*confidential treatment
requested/material filed separately*]”, and the omitted text has been filed
separately with the Securities and Exchange Commission.


 


2.             CBOE agrees
that, notwithstanding any other provision of the License Agreement, S&P may
enter into license agreements with one or more other Organized Securities
Markets authorizing such market or markets to use the S&P Marks and/or the
S&P 100 Index in connection with the unlisted trading of ETFs indexed to
the S&P 100 Index that are listed on CBOE.


 


3.             In
consideration for CBOE’s agreement as set forth in paragraph 2 of this
Amendment No. 5, S&P shall pay to CBOE [*confidential treatment
requested/material filed separately*] percent ([*confidential treatment
requested/material filed separately*]%) of any license fees received by S&P
pursuant to license agreements described in paragraph 2.  S&P shall determine any amount that it
owes to CBOE pursuant to this paragraph on a calendar quarterly basis, and any
amount owed shall be paid within forty-five (45) days after the end of the
quarter to which the payment relates. 
Each payment shall be accompanied by a full accounting of the
calculation of the amount of the payment.


 


4.             (a) If
S&P establishes a license fee in any license agreement with one or more
Organized Securities Markets as permitted in paragraph 2 of this Amendment No. 5
that is less than the license fee provided for in clause 5(a)(vi) of the
License Agreement (added to the License Agreement in Amendment No. 4),
S&P shall promptly notify CBOE thereof, and during the effectiveness of any
such license agreement the license fee payable by CBOE with respect to ETFs
indexed to the S&P 100 Index will be calculated at the same rate as the lowest
license fee payable by any other Organized Securities Market with respect to
such ETFs instead of at the rate specified in said clause 5(a)(vi).


 


(b) If S&P becomes
aware that any Organized Securities Market other than CBOE is holding itself
out as providing a marketplace for trading an ETF indexed to the S&P 100
Index


 

















 


Portions of this exhibit have been omitted pursuant to
a request for confidential treatment filed with the Securities and Exchange
Commission. The omissions have been indicated by the phrase “[*confidential
treatment requested/material filed separately*]”, and the omitted text has been
filed separately with the Securities and Exchange Commission.


 


on any regular or ongoing
basis, whether by listing or pursuant to unlisted trading privileges, and such
Organized Securities Market is doing so without having entered into a license
agreement with S&P and therefore without paying a license fee to S&P,
for so long as such trading continues on such Organized Securities Market CBOE
shall not be required to pay any license fee to S&P with respect to ETFs
indexed to the S&P 100 Index notwithstanding the provisions of clause 5(a)(vi) of
the License Agreement.


 


5.             Although the
parties disagree whether, if one or more other Organized Securities Markets
uses the S&P Marks and/or the S&P 100 Index in connection with the
unlisted trading of ETFs indexed to the S&P 100 Index that are listed on
CBOE without entering into a license agreement with S&P, such unlicensed
trading would trigger the rights and obligations of the parties under
subsection 10(b) of the License Agreement, the parties agree not to base
any argument as to whether subsection 10(b) would apply in that
circumstance on either the fact that CBOE agreed to paragraph 2 of this
Amendment No. 5 or any grant by S&P of one or more licenses to any
other Organized Securities Markets for the unlisted trading of ETFs indexed to
the S&P 100 Index as permitted by paragraph 2 of this Amendment No. 5.


 


6.             All other terms
of the License Agreement shall remain in full force and effect.


 


IN WITNESS WHEREOF, the parties have caused
this Amendment No. 5 to be executed as of the effective date set forth
above.


 


	
  CHICAGO
  BOARD OPTIONS

  	
   

  	
  STANDARD &
  POOR’S,

  
	
  EXCHANGE,
  INCORPORATED

  	
   

  	
  a
  division of The McGraw-Hill

  
	
   

  	
   

  	
  Companies, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BY:
  

  	
  /s/
  Richard G. DuFour

  	
   

  	
  BY:
  

  	
  /s/
  Robert A. Shakotko

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TITLE: 

  	
  Executive Vice President

  	
   

  	
  TITLE: 

  	
  Managing Director, Index
  Services