EXHIBIT
10.5


 


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. 4 TO LICENSE AGREEMENT


 


This Amendment No. 4 to
the Restated License Agreement effective as of November 1, 1994 and as
amended by Amendment No. 1 thereto dated January 15, 1995, Amendment No. 2
thereto dated April 1, 1998, and Amendment No.3 thereto dated July 28,
2000 (collectively, the “License Agreement”), is made as of the 27th day of October, 2000, 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 3 World Financial Center, New York, New York 10285.


 


W I T N E S S E T H:


 


WHEREAS, the parties wish to
modify the License Agreement so as to extend S&P’s right to grant to third
parties licenses pertaining to the S&P 100 Index and it’s associated
S&P Marks, and to expand CBOE’s permitted uses of the S&P Indexes.


 


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.


 


2.             Section 3(b) of
the License Agreement hereby restated in its entirety by the following:


 

















 


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.


 


“(b)         The license granted to CBOE
in Section 3(a) above shall be exclusive in respect of the S&P
100, and S&P agrees during the term of this Agreement that it shall not
grant a license to any other person to use the S&P 100 as the basis for any
securities products whatsoever, except for the license agreements for certain
options traded in the over-the-counter market that S&P has granted prior to
December 1, 1990 as listed on Exhibit B attached hereto, and except
that at any time during the period commencing April 1, 1999 and ending March 31,
2005, S&P shall be permitted to grant to third parties, nonrenewable,
nontransferable licenses to use the S&P 100 solely as the basis for the
products described below, on the condition that such licenses are limited to
products that, except as expressly provided below, are (i) issued and sold
only outside North America and (ii) are not listed or traded on any
Organized Securities Market or through NASDAQ, the Instinet or any similar
electronic communications network. 
Licenses granted by S&P pursuant to this Section 3(b) shall
expire no later than two (2) years after the date they are granted, except
they may continue in effect beyond the date of expiration solely in respect of
any products as to which interests therein are outstanding on the date of
expiration until such time as all interests in such products have matured,
expired, terminated, been redeemed or otherwise have ceased to be outstanding
in accordance with their terms.  The
products for which S&P is permitted to grant licenses in respect of the
S&P 100 pursuant to this Section 3(b) are limited to the
following (and any additional products as to which the parties may mutually
agree in writing):


 


(i)            OTC options consisting of
customized over-the-counter put and call options, the terms of which are
negotiated between the parties, and which are not issued or cleared by The
Options Clearing Corporation or a similar entity;


 


(ii)           Privately Placed Debt
Obligations, including notes, bonds debentures, guaranteed investment contracts
and commercial paper (whether or not certificated or evidenced by a written
instrument) where the principal of or interest payable on such debt
obligations, or both, is linked to the S&P 100 Index;


 


(iii)          Privately negotiated swaps
that involve the exchange of cash flows, one or more of which are linked to the
S&P 100 Index, provided that the swaps (1) have terms that are
individually tailored, (2) do not involve exchange-style offset, (3) do
not involve a clearing corporation or common margin or other common back-up
system, (4) are entered into in conjunction with a line of business, (5) are
not marketed to the public, and (6) are entered into and terminated
(whether by sale, assignment or otherwise) based on private negotiations;


 


(iv)          Public debt obligations,
including notes, bonds, debentures, guaranteed investment contracts and
commercial paper (whether or not evidenced by a certificate or instrument)
where the principal of or interest payable on such debt obligations, or both,
is linked to the S&P 100 Index.  Such
debt obligations may be listed and traded on any Organized Securities Market
located outside or within North America;


 


(v)           Indexed warrants, consisting
of instruments indexed to the S&P 100 Index that, in exchange only for the
payment of a non-refundable cash premium to or for the benefit of the issuer,
give the holder of the warrant the limited right until a stated expiration date
to acquire from the issuer either a fixed quantity of indexed underlying
securities against payment of a stated exercise price, or an amount of cash
representing the value of the


 

















 


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.


 


index
above or below a stated level.  Indexed
warrants shall not include put or call options that are issued or cleared by
The Options Clearing Corporation or a similar entity or that involve the
issuance of a new option or warrant each time there is a trade in which an
option or warrant is acquired by a holder. 
Such indexed warrants may be listed and traded on any Organized
Securities Market located outside North America;


 


(vi)          Redeemable open-end or
nonredeemable closed-end investment funds and unit investment trusts, including
publicly offered mutual funds and institutional funds having the investment
objective of tracking the price and yield performance of publicly-traded common
stocks as represented by the S&P 100 Index. 
All such open-end and closed-end funds and unit investment trusts may be
issued and sold within or outside North America.  Such closed-end funds, but not such open-end
funds or unit investment trusts, may be listed and traded on any Organized
Securities Market located outside North America;


 


(vii)         Investment vehicles
underlying or combined with one or more insurance products having the
investment objective of tracking the price and yield performance of
publicly-traded common stocks as represented by the S&P 100 Index (e.g.,
indexed variable annuities, or other indexed annuity products).  Such investment vehicles may be issued and
sold within or outside North America; and


 


(viii)        Exchange-traded funds (“ETFs”),
consisting of open-end funds, unit investment trusts or other pooled investment
vehicles that have the following characteristics: (a) the investment
objective thereof is to own a basket of stocks and/or other financial
instruments (such as futures, options and other derivative contracts) in an
attempt to replicate substantially the price and yield performance of
publicly-traded common stocks as represented by the S&P 100 Index; (b) they
issue, sell and redeem blocks of shares or other interests, which blocks are
sometimes referred to as “creation units”; and (c) they are issued and
redeemed only in a specified aggregate minimum number of shares or other units,
and only in exchange for a deposit of a specified number of shares of the
stocks represented in the index and/or a cash amount having a total value equal
to the net asset value of the shares to be issued or redeemed.  All such ETFs may be issued and sold within
or outside North America; provided that the issuer of the ETF agrees to list
the fund on CBOE exclusively.  It is
understood that the license granted to CBOE in Section 3(a) hereof to
use the S&P 100 and related S&P Marks in connection with Indexed
Securities Products extends to the listing and trading of shares of each ETF
that is the subject of a license granted by S&P to the issuer of such ETF
shares pursuant to this Section 3(b)(viii), for which CBOE shall pay a
license fee as set forth in Section 5(a)(vi); provided, however, that this
understanding shall not prejudice or otherwise affect S&P’s right, if any,
to enter into license agreements with other Organized Securities Markets as
contemplated by Par. 7 of Amendment No. 4 to this Agreement.  Nothing in this Agreement shall be construed
as an admission by either party s to whether the CBOE, other than pursuant to
the terms of this Agreement, does or does not have the right to list and/or
trade Standardized Option Contracts based on the ETFs.  In addition, ETFs listed and traded on CBOE
pursuant to the license granted hereunder shall be treated as if they were
“Contracts” for purposes of the disclaimer set forth in Subsection 12(c) of the
Agreement and S&P’s rights to indemnification under Section 15 of the
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.


 


3.             A new Section 5(a)(vi) is
added  as follows:


 


“(vi)        A fee for each
Exchange-traded Fund issued under a license granted by S&P pursuant to Section 3(b)(viii) of
[*confidential treatment requested/material filed separately*] ([*confidential
treatment requested/material filed separately*]) per round lot traded on the
CBOE.”


 


4.             Section 5(f) is
hereby restated in its entirety as follows:


 


“(f)          No
consideration shall by payable by S&P to CBOE hereunder in connection with
licenses granted by S&P to third parties pursuant to Section 3(b) including,
without limitation, in connection with licenses to use the S&P 100 that
S&P granted prior to December 1, 1990, as referenced in Section 3(b).
In addition, CBOE hereby agrees to forgive S&P for all outstanding, unpaid
amounts currently due CBOE arising out of licenses previously granted by
S&P to third parties to use the S&P 100, to the extent S&P was
permitted to grant such licenses under the terms of the Agreement as then in
effect.”


 


5.             The following new sentence
is added at the end of Section 3(a):


 


“It is also understood that the license granted in this Section 3(a) covers
the use of the S&P Indexes by CBOE in connection with the calculation and
dissemination of CBOE’s volatility indexes. 
No additional license fees shall be payable by CBOE to S&P in
connection with use of the S&P Indexes by CBOE for this purpose.”


 


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


 


7.             The parties agree that as
and when the circumstance may arise whereby any other Organized Securities
Market (including, without limitation, Instinet and NASDAQ) expresses a desire
to trade actual ETFs indexed to the S&P 100 Index pursuant to unlisted
trading privileges as authorized by Section 12(f)(1)(A)(i) of the
Securities Exchange Act of 1934, as amended (or any amended or successor
provision of said Act), the parties shall negotiate in good faith whether CBOE
will agree to a further amendment to the Agreement that would allow S&P to
enter into license agreements with the other Organized Securities Market
authorizing that market to use the S&P Marks and/or the S&P 100 Index
in connection with such unlisted trading. 
The parties further agree that nothing in this Agreement shall be
construed as an admission by S&P that S&P is required to obtain CBOE’s
permission to enter into the above-referenced license agreements with other
Organized Securities Markets.


 

















 


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.


 


IN WITNESS WHEREOF, the parties
have caused this Amendment to be executed as of the date first set forth above.


 


 


	
  CHICAGO
  BOARD OPTIONS

  	
   

  	
  STANDARD &
  POOR’S, a division

  
	
  EXCHANGE

  	
   

  	
  of The
  McGraw-HillCompanies, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BY: 

  	
  /s/ Richard G. DuFour

  	
   

  	
  BY: 

  	
  /s/ Robert A. Shakotko

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TITLE: 

  	
  Executive Vice President

  	
   

  	
  TITLE: 

  	
  Managing Director, Index
  Services