Amendment No. 16 to the Restated License Agreement, dated November 1, 1994, by and between Standard & Poors Financial Services LLC (as successor-in-interest to Standard & Poors, a division of McGraw-Hill, Inc.) and Cboe Exchange, Inc. (f/k/a Chicago Board Options Exchange, Incorporated), made as of April 1, 2020
Amendment No. 16
License Agreement dated as of November 1, 1994
by and between S&P Dow Jones Indices, LLC ("S&P")
Cboe Exchange, Inc. ("CBOE")
(formerly Chicago Board Options Exchange, Incorporated)
as previously amended (the “1994 Agreement”)
Amendment No. 3
Amended and Restated License Agreement dated as of September 29, 2006
by and between DJI Opco, LLC ("DJI Opco")
as previously amended (the “2006 Agreement”)
This Amendment No. 16 (this “Amendment”) is made as of April 1, 2020 (the “Amendment Effective Date”) and, with respect to the 1994 Agreement, is by and between S&P and CBOE, and, with respect to the 2006 Agreement, is by and between DJI Opco and CBOE (DJI Opco being a wholly owned subsidiary of S&P, and the successor by assignment to Dow Jones & Company, Inc., the original party with CBOE to the 2006 Agreement).
WHEREAS, the 1994 Agreement as in effect prior to the date of this Amendment consists of: the License Agreement effective as of November 1, 1994 as subsequently amended by Amendment No. 1 effective January 15, 1995, Amendment No. 2 effective April 1, 1998, Amendment No. 3 effective July 28, 2000, Amendment No. 4 effective October 27, 2000, Amendment No. 5 effective March 1, 2003, Amended and Restated Amendment No. 6 effective February 24, 2009 (which implemented "Addendum No. 1"), Amended and Restated Amendment No. 7 effective February 24, 2009, Amendment No. 8 effective January 9, 2005, Amendment No. 10 effective June 19, 2009, Amendment No. 11 effective April 29, 2010, Amendment No. 12 effective March 8, 2013, Amendment No. 13 effective December 21, 2017, Amendment No. 14 effective December 20, 2018, and Amendment No. 15 effective January 15, 2019 (Amendment No. 9 effective April 23, 2007 having been terminated as of February 24, 2009);
WHEREAS, the 2006 Agreement as in effect prior to the date of this Amendment consists of: the License Agreement dated as of September 29, 2006 as subsequently amended by Amendment No. 1 made as of August 22, 2011 and Amendment No. 2 made as of December 21, 2017;
WHEREAS, S&P desires to grant and CBOE desires to receive a license for CBOE and its Affiliates to use the S&P 500 ESG Index as modified from time to time (the “S&P 500 ESG Index”), as the basis for Standardized Option Contracts to be listed for trading on an Organized Securities Market as described in the 1994 Agreement and as further set forth in this Amendment;
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WHEREAS, S&P and CBOE desire to grant cross licenses to allow the parties to create, use, license and commercialize Amendment No. 6 Indexes based on the S&P 500 ESG Index, and for CBOE and its Affiliates to create, issue, sell, list and trade Products based on such Amendment No. 6 Indexes as described in Addendum No. 1 to the 1994 Agreement and as further set forth in this Amendment; and
WHEREAS, DJI Opco desires to provide a credit towards the Annual Minimum Payment due from CBOE to DJI Opco under the 2006 Agreement, for amounts payable by CBOE to S&P under the 1994 Agreement with respect to the trading of Standardized Options Contracts based on the S&P 500 ESG Index as set forth in Section 12 below.
NOW THEREFORE, the parties agree as follows:
(h)“Mini-SPX Contract” shall mean, with respect to the S&P 500 Index, the S&P 500 ESG Index or any of the Select Sector Indices, a Standardized Option Contract that is based on reduced values of such index that are calculated by multiplying the values of such index as published by S&P by a decimal value equal to 0.2 or smaller.
(h)Subject to the terms and conditions of this Agreement, S&P hereby grants to CBOE a non-transferable, non-assignable, non-sub-licensable, license, with respect to each of the indexes listed in Exhibit C hereto and such modified or successor indexes as they exist from time to time (such indices, collectively, “Exhibit C Indexes”), for CBOE and its Affiliates to use each of the Exhibit C Indexes as the basis for Standardized Option Contracts to be listed for trading on an Organized Securities Market in the United States and to use and refer to the S&P Marks associated with the Exhibit C Indexes in connection with the trading, marketing and promotion of such Standardized Options Contracts and with making disclosure about such Standardized Options Contracts as CBOE and its Affiliates deem necessary or desirable under any applicable laws, rules or regulations in order to indicate the source of the Exhibit C Indexes. The foregoing
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license for use of the Exhibit C Indexes in creating, issuing and listing for trading Standardized Option Contracts in the United States shall be exclusive for so long as the license granted to CBOE with respect to the S&P 500 in paragraphs 3(a) and 3(c) of this Agreement is exclusive in the United States, shall be subject to all of the terms and conditions of this Agreement (including Addendums hereto) that apply to use of the S&P 500 Index for Standardized Option Contracts and related Amendment No. 6 Indexes (including without limitation, with respect to the license fees payable by one party to the other party), except that Section 6(d) shall not apply to any Exhibit C Indexes, and Sections 3(m) and 3(n) shall not apply to the S&P 500 ESG Index. For the avoidance of doubt, Standardized Option Contracts based on the Exhibit C Indexes and Products based on Amendment No. 6 Indexes based directly or indirectly on the Exhibit C Indexes shall not be SPX Min/Max Products or VIX Min/Max Products.
(n) Unless it has obtained CBOE's prior written consent, S&P shall not grant any third party a license to use the S&P 500 Index or the Select Sector Indices in connection with trading Standardized Option Contracts outside the United States for so long as the license granted to CBOE with respect to the S&P 500 remains exclusive in the United States. At the request of CBOE, S&P will grant an exclusive license for CBOE and/or Affiliates of CBOE to use those S&P Indexes for which an exclusive worldwide license was in effect immediately preceding December 21, 2017 and the Select Sector Indices for Standardized Options Contracts traded on an Organized Securities Market in a territory outside the United States if there is no applicable local proposed, pending or existing legislation on the date of grant or known date in the future that, either (i) would prohibit or treat as unlawful the grant of such a license to CBOE, or (ii) as a result of the license to CBOE, would require that S&P grant a similar non-exclusive license to third parties.
(o)“S&P Amendment No. 6 Marks” means the S&P trademarks “Standard & Poor’s”, “S&P”, “S&P 500”, “S&P 100”, “Select Sector”, “S&P 500 ESG” and any other trademark that the parties hereafter agree in writing shall constitute an S&P Amendment No. 6 Mark for purposes of this Amendment No. 1.
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a.S&P shall have the right, upon at least thirty (30) days prior written notice, during CBOE’s normal business hours and at S&P’s expense, to review and inspect CBOE’s calculation systems and procedures and business records and procedures, solely to the extent necessary in order to determine whether CBOE is calculating the Amendment No. 6 Indexes in accordance with the requirements of this Section 10, and applicable law and regulations (such review, an “S&P Calculation Inspection”). Such S&P Calculation Inspection will be subject to CBOE’s reasonable confidentiality, compliance, and site security policies, and staff availability. In the event that the S&P Calculation Inspection reveals errors, deficiencies, or conflicts of interests in CBOE’s calculation systems and procedures, the parties will cooperate and collaborate to expediently resolve any such issues. CBOE agrees to give commercially reasonable consideration and attention to S&P's request(s) to make specified modifications to its calculation systems and procedures consistent with industry best practices and applicable law.
b.CBOE will notify S&P as soon as reasonably practicable of any development that is likely to have a material impact on CBOE’s ability to effectively carry out the calculation and distribution with respect to the Amendment No. 6 Indexes in compliance with applicable law and regulatory requirements. Upon prior written notice from S&P, CBOE shall use reasonable efforts to cooperate with any request for information from the relevant competent authority in connection with the calculation and distribution of the Amendment No. 6 Indexes that are registered benchmarks under BMR.
c.In addition, with respect to Amendment No. 6 Indexes that have been registered under BMR, CBOE shall grant to S&P and the representative(s) of the relevant competent authority (“Representative(s)”), access (i) to data relating to the calculation and distribution of the Amendment No. 6 Indexes and (ii) to its premises insofar as such access is necessary to enable the Representatives to fulfill their regulatory functions pursuant to BMR. Unless otherwise required (1) by BMR and/or any other relevant law or regulation and/or (2) by any relevant competent authority under BMR: (A) S&P shall provide CBOE with (i) at least thirty (30) days prior written notice of its own request or (ii) prompt notice of any request received by S&P from a competent authority, for access to CBOE’s premises; (B) such access shall be granted by CBOE to S&P and to the relevant competent authority only at reasonable times during the business hours of the relevant premises and to a reasonable number of persons representing S&P and/or Representatives; (C) S&P shall comply with CBOE’s policies on physical and information security and any other reasonable requests to protect information security or commercially sensitive information; (D) access will be granted by CBOE to documents and other data only insofar as it is specifically relevant to the calculation and distribution of the Amendment No. 6 Indexes and such data may be redacted to the extent that it contains commercially sensitive proprietary information; and (E) no copies of CBOE data shall be made or removed from CBOE’s premises without CBOE’s written consent.
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a.CBOE will be the Benchmark Administrator (as the term is defined under the IOSCO Principles and BMR, as applicable) with respect to any CBOE Derivative Index based on the S&P 500 ESG Index, and CBOE will comply with the IOSCO Principles and applicable laws, rules and regulations with respect to such CBOE Derivative Indexes.
b.The parties shall incorporate the terms set forth in Section 10 above with respect to the CBOE Derivative Indexes based on the S&P 500 ESG Index.
[signature page follows]
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The terms and conditions of this Amendment are hereby acknowledged and agreed to:
S&P DOW JONES INDICES, LLC
CBOE EXCHANGE, INC.
/s/ Jamie Farmer
/s/ John F. Deters
John F. Deters
Chief Commercial Off.
May 26, 2020
DJI OPCO, LLC
/s/ Jamie Farmer
Chief Commercial Officer
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Exhibit C Indices
The following Exhibit C Indexes are “S&P Indexes” as referred to in the Agreement:
Select Sector Indices
Financial Select Sector Index
Energy Select Sector Index
Technology Select Sector Index
Health Care Select Sector Index
Utilities Select Sector Index
Consumer Staples Select Sector Index
Industrials Select Sector Index
Consumer Discretionary Select Sector Index
Materials Select Sector Index
Real Estate Select Sector Index
Communications Services Select Sector Index
Other S&P Indexes
S&P 500 ESG Index
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