[Federal Register Volume 70, Number 66 (Thursday, April 7, 2005)]
[Notices]
[Pages 17739-17742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-1591]



[[Page 17739]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51462; File No. SR-CBOE-2005-20]


Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Proposed Rule Change and Amendment No. 1 
Thereto Relating to an Interpretation of Paragraph (b) of Article Fifth 
of Its Certificate of Incorporation and an Amendment to Rule 3.16(b)

March 31, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on March 9, 2005, the Chicago 
Board Options Exchange, Incorporated (``CBOE'' or the ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the CBOE. On March 28, 2005, the Exchange 
submitted Amendment No. 1 to the proposed rule change.\2\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ Due to a pending motion to reconsider the Commission's 
approval of SR-CBOE-2004-16, which was submitted on March 7, 2005, 
Amendment No. 1 removed certain language from the text of CBOE Rule 
3.16(b) that was included with the original filing to reflect the 
stay of effectiveness of the text added by SR-CBOE-2004-16 pending a 
final Commission determination of the motion to reconsider. 
Accordingly, Amendment No. 1 revised the proposed rule change to 
reflect the text of CBOE Rule 3.16 as currently in effect, without 
the language added to the Rule by SR-CBOE-2004-16, and as it is 
proposed to be modified by the current rule filing. Amendment No. 1 
also adds Exhibit 3b to the filing, which consists of an opinion 
letter received by CBOE from its special Delaware counsel that 
pertains to the proposed rule change.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The proposed rule change consists of an interpretation of paragraph 
(b) of Article Fifth of the Certificate of Incorporation of the CBOE 
pertaining to the right of the 1,402 Full Members of the Board of Trade 
of the City of Chicago, Inc. (the ``CBOT'') to become members of the 
CBOE without having to purchase a CBOE membership (``Exercise Right''). 
This interpretation of the Exercise Right is embodied in an Agreement 
dated October 7, 2004 (``2004 Agreement'') between the CBOE and the 
CBOT and in a related proposed amendment to CBOE Rule 3.16. The 2004 
Agreement reflects the agreement of the CBOE and the CBOT concerning 
the nature and scope of the Exercise Right in light of the expanded 
operation of the CBOT's electronic trading system. The text of the 2004 
Agreement is attached as Exhibit 3 to the CBOE's Form 19b-4, and the 
opinion letter of CBOE's special Delaware counsel is attached as 
Exhibit 3b to the CBOE's Form 19b-4. The text of the proposed rule 
change, including the above-referenced Exhibits and Amendment No. 1, is 
available on CBOE's Web site [http://www.cboe.org/Legal/SubmittedSECFilings.aspx], at the CBOE's Office of the Secretary, and 
at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, CBOE included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The CBOE has prepared summaries, set forth in Sections 
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the proposed rule change is to provide an 
interpretation of the rules of the CBOE as set forth in paragraph (b) 
of Article Fifth of the CBOE Certificate of Incorporation (``Article 
Fifth(b)'') concerning the effect on the Exercise Right of the 
expansion of CBOT's electronic trading platform. The source of the 
Exercise Right is Article Fifth(b), which provides in part that ``every 
present and future member of [CBOT] who applies for membership in the 
[CBOE] and who otherwise qualifies shall, so long as he remains a 
member of said Board of Trade, be entitled to be a member of the [CBOE] 
notwithstanding any such limitation on the number of members and 
without the necessity of acquiring such membership for consideration or 
value from the [CBOE], its members or elsewhere.'' This filing does not 
propose to amend Article Fifth(b), but only to interpret how it should 
apply in circumstances that CBOE believes were not envisioned at the 
time Article Fifth(b) was adopted and therefore were not addressed in 
the language of that Article.
    Expanded electronic trading on CBOT carries with it with the 
potential for providing open access to the CBOT market over the 
electronic platform on substantially the same terms to members and 
nonmembers alike. This raises the possibility that CBOT members will no 
longer need the trading rights provided by their memberships in order 
to be able to trade CBOT products, in which event they would be free to 
sell or delegate their CBOT memberships to persons who would exercise 
them to become CBOE members, or to become CBOE exerciser members 
themselves, while still retaining the right to trade on CBOT's open 
access electronic platform. Accordingly, expanded electronic trading of 
CBOT products could facilitate the ability of CBOT members or their 
delegates to trade on CBOT as members and on CBOE as exercise members 
concurrently, since physical presence on the CBOT trading floor would 
not be required to trade CBOT products that are available in the 
electronic system.
    For these reasons, CBOE believes expanded electronic trading on 
CBOT could result in a mass exercise by CBOT Full Members to an extent 
never contemplated at the time the Exercise Right was first 
established. When the Exercise Right was first established, the only 
way a CBOT Full Member who was also a member of CBOE could trade as a 
member of both exchanges was to physically move from one exchange's 
trading floor to another. Although the proximity of the two trading 
floors made this theoretically possible, few CBOT Full Members have 
ever attempted to trade on both floors in this way. CBOE believes a 
principal reason for this is because a CBOT member who is also a CBOE 
member would find it difficult to fulfill his obligations to both 
exchanges, as well as to manage the positions resulting from his 
trading, if he frequently had to be absent from one exchange's trading 
floor because of a need to be on the other exchange's floor. Therefore, 
although the Exercise Right has always been available to all 1,402 CBOT 
Full Members, it was inherent in the nature of exchange trading at the 
time Article Fifth(b) was adopted that only a fraction of CBOT Full 
Members would be expected to use that right to become members of CBOE. 
This is confirmed by the fact that during the entire time the Exercise 
Right has been in effect the percentage of CBOT Full Members who have 
exercised has averaged 33.12%, and has never exceeded 52.85%. During 
the year ended December 31, 2004, the percentage of CBOT Full Members 
who

[[Page 17740]]

exercised ranged from a high of 29.24% to a low of 25.53%.
    In order to permit the Exercise Right to remain available to CBOT 
Full Members in a manner consistent with what CBOE believes was its 
original intent, CBOE (with CBOT's concurrence) proposes to interpret 
Article Fifth(b) to take into account the development and expansion of 
electronic trading that were not anticipated at the time that Article 
was adopted, and thus are not addressed in the language of that 
Article.
    In 2001, concurrently with announcing the planned expansion of 
electronic trading in its market, CBOT also announced a proposed 
strategic restructuring of that exchange that would have changed CBOT 
from a non-profit membership corporation to a for-profit stock 
corporation to be owned by its former members as stockholders 
(subsequently revised to make CBOT a for-profit subsidiary of a for-
profit holding company to be owned by the former members). CBOE 
believed that the proposal to restructure CBOT was also not anticipated 
when Article Fifth(b) was adopted, and that it created a separate need 
for CBOE to interpret how Article Fifth(b) would apply when former 
members of CBOT became stockholders of a new holding company.
    For these reasons, in early 2001 CBOE entered into discussions with 
CBOT in an effort to reach agreement regarding how CBOE would interpret 
Article Fifth(b) in response to both of these developments at CBOT. 
These discussions resulted in an agreement between CBOE and CBOT, 
entered into as of August 1, 2001 (the ``2001 Agreement''), that 
embodied CBOE's interpretation of Article Fifth(b) in response to both 
developments. That interpretation, as subsequently modified to reflect 
several revisions to CBOT's proposed restructuring, was filed by CBOE 
as a proposed rule change under Rule 19b-4 of the Act in SR-CBOE-2002-
01.
    Prior to and during the time SR-CBOE-2002-01 was on file at the 
Commission, CBOT's proposed restructuring was the subject of litigation 
between CBOT and certain of its members. Although this litigation did 
not involve CBOE and was not related to the Exercise Right, CBOT's 
proposed restructuring was delayed while the litigation was pending. 
For this reason, at CBOE's request, the Commission deferred acting on 
SR-CBOE-2002-01, and on April 6, 2004, when it remained uncertain when 
CBOT would be able to go forward with its restructuring, CBOE formally 
withdrew that filing. Recently, following the settlement on September 
20, 2004, of the litigation that had delayed the CBOT's proposed 
restructuring and the effectiveness on February 14, 2005, of the 
registration statement of CBOT Holdings, Inc. needed to permit the 
members of the CBOT to vote on the proposed restructuring, on March 7, 
2005, CBOE refiled the interpretation of Article Fifth(b) embodied in 
the 2001 Agreement.\3\
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    \3\ See Securities Exchange Act Release No. 51463 (March 31, 
2005) providing notice of File No. SR-CBOE-2005-19.
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    Although the interpretation embodied in the 2001 Agreement 
addresses the expansion of electronic trading as well as the proposed 
restructuring of the CBOT, that interpretation can become effective, 
subject to Commission approval, only upon the effectiveness of the 
CBOT's restructuring. Because expanded electronic trading may have an 
impact on the Exercise Right as described above independent of whether 
the restructuring of the CBOT becomes effective, CBOE believes it must 
interpret Article Fifth(b) to address the expansion of electronic 
trading at CBOT in a way that is not conditioned on the effectiveness 
of the proposed restructuring of CBOT. For this reason, in late 2004 
CBOE and CBOT entered into discussions in an attempt to reach agreement 
on an interpretation of Article Fifth(b) by CBOE that would be solely 
in response to expanded electronic trading and would be completely 
independent of the restructuring of CBOT. As a result of these 
discussions, CBOE and CBOT entered into the 2004 Agreement. The 
interpretation of Article Fifth(b) embodied in the 2004 Agreement, 
together with a related amendment to CBOE Rule 3.16(b), constitutes the 
proposed rule change that is the subject of this filing.
    The interpretation of Article Fifth(b) embodied in the 2004 
Agreement mirrors that aspect of the interpretation embodied in the 
2001 Agreement that addressed the expansion of electronic trading to 
the effect that the Exercise Right would continue to be available to 
CBOT Full Members notwithstanding the development of electronic trading 
and related changes to trading hours and access policies that may be 
made by either exchange, if certain conditions are satisfied. Included 
among these conditions is the agreement of CBOT to take various 
measures to promote the value of CBOT membership while at the same time 
to limit the ability of CBOT members and their delegates to trade as 
members on CBOT and CBOE concurrently, in order to reduce the 
likelihood of a mass exercise under circumstances that CBOE believes 
were not contemplated when the Exercise Right was established. These 
measures include restricting the ability of exercising CBOT members to 
have preferred member access to the CBOT's electronic trading platform 
while they are present on the CBOE trading floor or are logged on to 
the CBOE electronic platform. If either of these circumstances applies, 
the exercising members may access CBOT's electronic platform only in 
the capacity of nonmember customers. Similarly, CBOT agreed that any 
CBOT Full Member Delegates who have exercised may trade on CBOT's 
electronic platform only as customers. Finally, the 2004 Agreement 
provides that if a CBOT Full Member delegates his only CBOT Full 
Membership to a delegate who exercises, the CBOT Full Member has no 
right to exercise and may trade on CBOE only as a customer.
    Like the 2001 Agreement, the 2004 Agreement includes the agreement 
of CBOT to modify its rules effective not later than December 1, 2004, 
to preclude any Full Member or Full Member Delegate of CBOT who is also 
an exercise member of CBOE from trading as a member on the trading 
floor of CBOT at any time when the member is logged on to CBOE's 
electronic trading platform. (The CBOE represents that the CBOT has 
adopted such a rule.) This latter restriction does not apply to a CBOT 
Full Member who owns more than one CBOT membership, at least one of 
which has not been delegated or, in the case of a CBOT Full Membership, 
used to acquire a CBOE membership by exercise. Finally, the 2004 
Agreement provides that if a CBOT Full Member delegates his only CBOT 
Full Membership to a delegate who exercises, the CBOT Full Member has 
no right to exercise and may trade on CBOE only as a customer.
    In order to make these restrictions on exercising members and 
delegates effective for their intended purpose, the 2004 Agreement, 
like the 2001 Agreement, provides that the application of CBOE's 
interpretation of the exercise right embodied therein is conditioned on 
CBOT's maintaining meaningful fee preferences for the members and 
delegates of CBOT as compared with the fees payable by nonmember 
customers, and maintaining other incentives to support the value of 
CBOT Full Membership. The 2004 Agreement provides that if disagreements 
arise between CBOE and CBOT as to whether meaningful fee preferences 
and other incentives are being maintained, the matter will be

[[Page 17741]]

referred to arbitration. The arbitrators are authorized to determine 
whether meaningful member and delegate fee preferences are being 
maintained, and if not, to specify a remedy for CBOT's failure to 
maintain them and to specify how they must be restored. The arbitrators 
are also authorized to prescribe the consequences of any failure by the 
CBOT to take any action required under the remedy specified by the 
arbitrators within 30 days of the arbitrators' decision. The CBOE 
represents that the CBOT has agreed to amend its rules to implement the 
provisions of the 2004 Agreement.
    This interpretation of Article Fifth(b) does not displace other 
interpretations of Article Fifth(b) previously adopted by CBOE and 
approved by the Commission to address other unanticipated changed 
circumstances. These consist of the interpretation embodied in an 
agreement between CBOE and CBOT dated as of September 1, 1992, filed in 
SR-CBOE-92-42, an interpretation filed in SR-CBOE-2002-41, and an 
interpretation embodied in an agreement between CBOE and CBOT dated as 
of December 17, 2003, filed in SR-CBOE-2004-16.\4\ Because existing 
CBOE Rule 3.16 refers to all of the interpretations of Article 
Fifth(b), the proposed rule change also includes an amendment to that 
Rule to add a reference to this latest interpretation.
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    \4\ See Securities Exchange Act Release No. 32430 (June 8, 
1993), 58 FR 32969 (June 14, 1993) (File No. SR-CBOE-1992-42); 
Securities Exchange Act Release No. 46719 (October 25, 2002), 67 FR 
66689 (November 1, 2002) (File No. SR-CBOE-2002-41); and Securities 
Exchange Act Release No. 51252 (February 25, 2005), 70 FR 10442 
(File No. SR-CBOE-2004-16). A motion for reconsideration of the 
Commission's order approving SR-CBOE-2004-16 was filed on March 7, 
2005 and is currently pending before the Commission.
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2. Statutory Basis
    The CBOE represents that the interpretation of the Exercise Right 
embodied in the 2004 Agreement and the conforming amendment to CBOE 
Rule 3.16 that together constitute the proposed rule change are 
consistent with and further the objectives of the Act, as amended, and 
Section 6(b)(5) of the Act \5\ in particular, in that they constitute 
an interpretation of and an amendment to the rules of the Exchange that 
are designed to promote just and equitable principles of trade, to 
perfect the mechanisms of a free and open market, and to protect 
investors and the public interest.
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    \5\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    CBOE does not believe that the proposed rule change will impose any 
burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    No written comments were solicited or received with respect to the 
proposed rule change. Comments were received from some members in 
respect of the prior filing of the interpretation of Article Fifth(b) 
embodied in the 2001 Agreement, and on August 30, 2001, ten members of 
the CBOE filed suit in the Circuit Court of Cook County, Illinois 
seeking a temporary restraining order and preliminary injunction 
against the CBOE and the CBOT that would prevent CBOE from implementing 
the 2001 Agreement.\6\ The allegations made by these commenters and by 
the plaintiffs in the dismissed lawsuit raised essentially the same 
procedural issue, which involved characterizing the 2001 Agreement not 
as an interpretation of Article Fifth(b), but as an amendment to that 
Article. Since, by its terms, Article Fifth(b) may be amended only with 
the approval of 80% of the exerciser members of CBOE and 80% of the 
non-exerciser members of CBOE, these commenters and the plaintiffs in 
the lawsuit took the position that the 2001 Agreement was invalid.\7\
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    \6\ On September 17, 2001, the Court granted CBOE's and CBOT's 
motions to dismiss this lawsuit.
    \7\ Similar allegations were made in the petition for Commission 
review of the approval by delegated authority of SR-CBOE-2004-16. 
See supra note 4.
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    Although none of these allegations was directed toward the 2004 
Agreement and the interpretation of Article Fifth(b) embodied therein 
that is the subject of this proposed rule change, the same procedural 
issue could be raised in response to the proposed rule change. 
Accordingly, CBOE will repeat here the substance of what it said when 
this issue was previously raised.
    CBOE believes any allegation that the 2004 Agreement reflects an 
amendment of Article Fifth(b), and not an interpretation of that 
Article, is entirely without merit. The 2004 Agreement does not change 
either the language or intended meaning of Article Fifth(b), but 
instead provides an interpretation of that Article to deal with 
circumstances brought about by the expansion of electronic trading on 
CBOT that were not contemplated or addressed in the language of that 
Article or in any of CBOE's prior interpretations of that Article.
    Exactly the same kind of interpretation of Article Fifth(b) was 
embodied in the 1992 Agreement and the 2003 Agreement and was the 
subject of SR-CBOE-2002-41. Each of these three prior interpretations 
addressed circumstances that were not contemplated when Article 
Fifth(b) was adopted, and were not addressed in the terms of that 
Article. Because CBOE had no choice but to interpret Article Fifth(b) 
in response to these changed circumstances, and because these 
interpretations did not amend the terms of that Article, none of these 
prior interpretations was submitted to an 80% class vote of the CBOE 
membership as would have had to be done if they had been treated as 
amendments to that Article. They were, however, filed by CBOE and 
approved by the Commission as interpretations of an existing rule 
constituting a rule change under Section 19(b) of the Act and Rule 19b-
4 thereunder.\8\
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    \8\ See supra note 4.
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    CBOE believes the expansion of electronic trading on CBOT, absent 
appropriate safeguards, raises the potential for a mass exercise by 
most or all of the 1,402 Full Members of CBOT in a manner that would be 
inconsistent with how the Exercise Right was expected to operate at the 
time it was adopted. To prevent this from happening, CBOE believes it 
is again necessary for it to interpret how Article Fifth(b) will apply 
in light of this unanticipated changed circumstance as it has done 
before when faced with different changed circumstances at CBOT. Such an 
interpretation of the Exercise Right by CBOE is embodied in the 2004 
Agreement, and it, together with a conforming amendment to Rule 3.16, 
constitutes the proposed rule change filed hereby. CBOE represents that 
neither this interpretation of Article Fifth(b) nor the proposed change 
to Rule 3.16 makes any changes to the text of Article Fifth(b), nor are 
they in any way inconsistent with the language of that Article. 
Instead, they simply interpret Article Fifth(b) so it may operate as 
intended in circumstances that CBOE believes were not contemplated at 
the time that Article was drafted or was previously interpreted.
    CBOE represents that if it is not able to interpret Article 
Fifth(b) under unanticipated changed circumstances without satisfying 
the 80% class vote requirements that apply in the case of an amendment 
to that Article, CBOE would be placed on the horns of a

[[Page 17742]]

dilemma. If an interpretation did not achieve the 80% approval of each 
class of voting members, the interpretation could not be enforced. 
However, CBOE would still need to know how the Exercise Right should 
apply under the changed circumstances. But under the view that any 
interpretation CBOE might adopt in such circumstances must be treated 
as an amendment to Article Fifth(b), CBOE could be paralyzed because 
conceivably no interpretation would receive the necessary vote. In 
other words, where CBOE has no choice but to interpret Article Fifth(b) 
in response to changed circumstances and where its interpretation is 
entirely consistent with the language of Article Fifth(b), CBOE must be 
able to make such an interpretation without having to satisfy the 
requirements that would apply if Article Fifth(b) were being amended.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, is consistent with the Act. Comments may be 
submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-CBOE-2005-20 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609.
    All submissions should refer to File Number SR-CBOE-2005-20. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the CBOE. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-CBOE-2005-20 and should be submitted on or before April 
28, 2005.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E5-1591 Filed 4-6-05; 8:45 am]
BILLING CODE 8010-01-P