[Federal Register Volume 62, Number 83 (Wednesday, April 30, 1997)]
[Notices]
[Pages 23516-23519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11086]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-38541; File No. SR-CBOE-97-14]
Self-Regulatory Organizations; Chicago Board Options Exchange,
Inc., Order Approving Proposed Rule Change Relating to the Issuance of
Trading Permits and Other Procedures Resulting from the Transfer of the
Options Business of the New York Stock Exchange to the Chicago Board
Options Exchange
April 23, 1997.
I. Introduction
On March 3, 1997, the Chicago Board Options Exchange, Inc.,
(``CBOE'' or ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'' or ``SEC'') pursuant to Section 19(b)(1) of
the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4
thereunder \2\ a proposed rule change relating to issues arising from
the transfer of the New York Stock Exchange's (``NYSE'') options
business to the CBOE. The proposed rule change was published for
comment in Securities Exchange Act Release No. 38375 (March 7, 1997),
62 FR 12667 (March 17, 1997). The Commission received two comment
letters in response to the proposal.\3\
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ Letters from Simon Erlich, Option Member, NYSE to Commission
(March 10, 1997) (``Erlich Letter); Michael Schwartz, Chairman,
Committee on Options Proposals, to Jonathan G. Katz, Secretary,
Commission (April 8, 1997) (``COOP Letter'').
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II. Description of the Proposal
The purpose of the proposed rule change is to authorize the
issuance of 75 ``Options Trading Permits'' (``Permits'') in connection
with the proposed transfer of the NYSE's options business to CBOE, and
to define the rights and obligations associated with such Permits.\4\
In addition, the proposed rule change amends CBOE rules as necessary to
provide for the trading on CBOE of options on the NYSE Composite Index.
The 75 Permits are proposed to be issued pursuant to the terms of an
agreement between CBOE and NYSE. The agreement represents the
culmination of a process initiated by NYSE in the summer of 1996 when
it announced that it intended to discontinue its options business. At
that time, NYSE invited interested parties wishing to continue NYSE's
options business to bid for its acquisition by offering trading rights
and other benefits to NYSE members, including payment for the ``going
business'' value of the business to be acquired. Based on its bid in
response to NYSE's invitation, NYSE determined to enter into exclusive
negotiations with CBOE. A definitive agreement between CBOE and NYSE
(``Transfer Agreement'') was executed as of February 5, 1997.\5\
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\4\ See also Securities Exchange Act Release No. 38376 (March 7,
1997), 62 FR 12671 (March 17, 1997) (notice of filing of proposed
rule change regarding the transfer of the NYSE options business to
the CBOE).
\5\ A copy of the Agreement is attached as Exhibit B to File No.
SR-CBOE-97-14 and is available for review at the Office of the
Secretary of CBOE, and in the Public Reference Room of the
Commission.
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The Transfer Agreement contemplates that trading in NYSE Options
\6\ will commence on the CBOE trading floor on April 28, 1997,
(``Effective Date''), subject to the fulfillment of specified
conditions and the approval of this proposed rule change and the
parallel filing by NYSE.\7\ The Transfer Agreement provides that CBOE
will pay $5,000,000 as the purchase price for the business to be
transferred, of which $1,200,000 will be retained by NYSE to cover its
costs associated with the termination of its options activities and as
payment for a ten-year license granted to CBOE to enable it to trade
options on the NYSE Composite Index, and $3,800,000 net of a tax
reserve will be distributed pro rata to all NYSE members, or the NYSE
Foundation, depending on the tax treatment by the Internal Revenue
Service.\8\
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\6\ ``NYSE Options'' are defined as those classes of options
that were traded on NYSE immediately prior to the Effective Date and
not then also traded on CBOE, and those classes of options on at
least 14 additional underlying stocks which CBOE has agreed to
designate as NYSE Options during each of the seven years following
the Effective Date.
\7\ On April 23, 1997, the Commission approved the NYSE filing.
See Securities Exchange Act Release No. 38542 (April 23, 1997).
\8\ Details of the cash distribution to NYSE members were
described in Item 3 of the parallel proposed rule change filed by
NYSE.
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The Transfer Agreement also provides that CBOE will issue up to a
total of 75 Permits to those NYSE specialist and non-specialist firms
and sole proprietors who operated pursuant to options trading rights on
NYSE on December 5, 1996, and who agree to transfer their options
activities to CBOE. In the case of a NYSE specialist, the specialist
firm may select any qualified person to act as its nominee on CBOE. In
the case of a non-specialist, the individual acting pursuant to an
options trading badge on NYSE on December 5, 1996, must personally
relocate to Chicago in order to receive a Permit. If less than 75
Permits are issued to NYSE specialists and non-specialists, the
Transfer Agreement provides that the difference between 75 Permits and
the number of Permits so issued will be deposited in a lease pool to be
leased to qualified persons who wish to trade NYSE Options on CBOE. The
proceeds from the lease of these Permits will be paid to certain
designated persons who held options trading rights on NYSE, as
described below.
The issuance of 75 Permits is proposed to be authorized pursuant to
a new Section 2(e) to the Exchange's Constitution. That section
provides that all Permits expire on the seventh anniversary of the date
when trading begins on the floor of CBOE in NYSE Options. It also
specifies that Permit holders shall have none of the rights of members
except as specified in the Rules of the Exchange.
The rights and obligations of holders of Permits are set forth in
proposed new Exchange Rule 3.27, which incorporates by reference many
of the other rules of the Exchange pertaining to the rights and
obligations of Exchange members generally. Subparagraph (a)(1) of Rule
3.27 reflects the terms of the Transfer Agreement by providing that
NYSE non-specialist firms and sole proprietors who were engaged in
business on the options floor of NYSE immediately prior to the
Effective Date are entitled to the same number of Permits as the number
of options floor badges they held on NYSE on December 5, 1996, but that
each individual who held an NYSE Options floor badge and acted as a
non-specialist must personally relocate to Chicago in order to be
entitled to a Permit in respect of that badge. Subparagraph (a)(2)
provides that each specialist firm engaged in business on the options
floor of NYSE is likewise entitled to the same number of Permits as the
number of options floor badges they held on NYSE, and that, subject to
the rules of CBOE, each such firm may designate any qualified person to
be the firm's nominee on CBOE.
Subparagraph (a)(3) of Rule 3.27 describes the terms of the lease
pool pursuant to which any of the 75 Permits not issued to NYSE members
active on the NYSE options floor, or any so issued but subsequently
surrendered, will be leased by CBOE through an auction or other
competitive process. The lease proceeds would ordinarily be paid to
those persons identified by NYSE as having used or leased NYSE Options
trading rights on December 5, 1996, or holders of options trading
rights that,
[[Page 23517]]
while not so used or leased, were formally separated from their NYSE
memberships on that date, or transferees of such persons.
Subparagraph (a)(4) of Rule 3.27 provides that if a Permit issued
to a Options badge holder is not used during the first year following
the Effective Date, the Permit shall be surrendered, and shall be added
to the lease pool described above, unless the inactivity of the Permit
has been consented to by CBOE.
Subparagraph (a)(5) of Rule 3.27 provides that Permits issued to
NYSE Options badge holders pursuant to subparagraphs (a) (1) and (2)
are not transferable for one year following the Effective Date, except
as consented to by the Exchange in the event of death, hardship or
certain successions in ownership. Following this one year period,
Permits are freely transferable in accordance with Exchange rules
governing the transfer of memberships generally.
Paragraph (b) of Rule 3.27 describes the trading rights to which
the holder of a Permit is entitled. In general, these include the right
to be admitted to the separate CBOE trading facility devoted
exclusively to the trading of NYSE Options, as defined in the Rule, and
to engage in the activities of a Market-Maker, Designated Primary
Market-Maker (``DPM'') and/or Floor Broker in respect of those options,
subject to the applicable rules of the Exchange. In addition, the
holder of a Permit is entitled to trade by order as principal those
classes of options traded on CBOE's regular trading floor that were
dually traded on both CBOE and NYSE immediately prior to the Effective
Date. Permit holders are also entitled to trade by order as principal
all other classes of options traded on CBOE's regular trading floor,
provided that such trades during any calendar quarter (as measured by
contract volume) do not exceed twenty percent of the sum of the permit
holder's total in person principal trades in Options and the Permit
holder's principal trades by order in options that were dually traded
on both CBOE and immediately prior to the Effective Date. Finally, a
Permit holder is entitled to be admitted to the regular options trading
floor in order to respond to the call of a Board Broker or Order Book
Official for additional market-makers pursuant to Exchange Rule 7.5.
Paragraph (c) of Rule 3.27 provides that each NYSE specialist firm
to which a Permit is issued will be appointed as the DPM in the same
classes of NYSE Options as those for which it was designated as a
specialist on NYSE, subject to qualifying to act as such pursuant to
CBOE rules. Paragraph (c) also provides that the DPMs for the
additional classes of NYSE Options designated each year shall be chosen
from among Permit holders. Subject to the rules of the Exchange,
specialist firms appointed as DPMs in NYSE Options shall be entitled to
continue to act as such during the term of the Permits, and thereafter
if they become regular members of the Exchange. CBOE will allocate to
the new program securities underlying at least 14 new options classes
per year for the first seven years after the transfer.
Paragraph (d) of Rule 3.27, together with Section 2(e) of the
Exchange Constitution, provides that Permit holders shall have the same
rights and obligations of members, except that they shall have no right
to petition or vote or to be counted as part of a quorum at meetings of
members, they shall have no interest in the assets or property of the
Exchange, they shall not share in any distribution by the Exchange,
they shall not participate in the Exchange's member death benefit
program, and they shall not have the right to transact business with
the public in any securities dealt in on the Exchange other than NYSE
Options. Holders of Permits may serve on any committee of the Exchange
to which they are appointed, and are deemed to be appointed market
makers in all classes of NYSE Options pursuant to Exchange Rule 8.3.
Paragraph (d) also provides that membership application fees shall
be waived in connection with the approval of Permit holders or their
nominees in connection with the original issuance of a Permit but not
the subsequent transfer or lease of a Permit, and shall also be waived
in connection with the approval of the initial holder or its nominee as
a regular member of the Exchange or as the nominee of a regular member.
Membership or nominee applications made by Permit holders or their
nominees who are not subject to a statutory disqualification and are
not the subjects of a self-regulatory organization investigation that
may involve their fitness for membership shall be deemed effective for
a temporary period of six months, so as not to interrupt their Exchange
activities while their applications are being processed.
CBOE also proposes to amend certain of the rules in Chapters XXIV
and XXIVA of the Rules of the Exchange, which govern the trading of
index options and FLEX options, respectively, in order to provide for
the listing and trading of options on the NYSE Composite Index.
(Hereafter, such index is referred to as the ``Index'' and such options
as ``NYA Options''.) The Index is a capitalization-weighted index
comprising all of the over 2,500 common stocks listed on NYSE. The
Index is expressed in relation to the base period market value which
has been adjusted for capitalization changes over time. The base value
of the Index was set at 50 on December 31, 1965. NYSE will continue to
act as the reporting authority for the Index, and CBOE will trade NYA
Options pursuant to a license granted by NYSE.
As traded on NYSE and as proposed to be traded on CBOE, NYA Options
are European-style, A.M.-settled index options, strike prices for which
are introduced at $2.50 or $5.00 intervals for strike prices below $200
or at or above $200, respectively. The Index Multiplier for NYA Options
is $100. CBOE proposes to apply to NYA Options the sane 45,000 contract
position and exercise limits (no more than 25,000 contracts expiring in
the nearest expiration month) and the same hedge exemption that
currently apply to such options under NYSE rules. In addition to
regular index options, CBOE proposes to provide for trading in
Quarterly Index Expiration options (``QIX'' options), long-term and
reduced-value long-term options (``LEAPS'' and ``reduced-value LEAPs'')
and A.M.-settled FLEX Options on the Index pursuant to the same rules
and procedures that currently govern trading on CBOE in these types of
options.
In addition, the proposed rule change includes a few corrections to
the table of position limits set forth in Rule 24.4 in order to add
references to classes of index options that were inadvertently omitted
from the table when it was last revised, and a few clarifications to
the language of Rule 24A.4(b) concerning the specification of the
exercise settlement values for FLEX Index Options. No substantive
changes will result from these corrections and clarifications.
III. Comments
The Commission received two comment letters regarding the proposed
rule change.\9\ The first commenter, Mr. Erlich, opposes the transfer
of the options business, finding the agreement discriminatory and
monopolistic.\10\ Mr. Erlich believes that the agreement treats
specialists as a class over other options members, and treats lease
pool participants with separated options trading rights less favorably
than those lease pool participants with unseparated option trading
rights. The commenter
[[Page 23518]]
finds the agreement monopolistic because it will result in more options
being traded in fewer exchanges. Finally, Mr. Erlich questions how one
exchange can sell to another exchange that which has been granted for
free (i.e., the right to sell options).
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\9\ See note 3 supra.
\10\ See Erlich Letter.
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The second commenter, the COOP, is in favor of the proposal,
stating that the relative size of the NYSE Options program coupled with
its lack of automatic execution capability has led to cost
inefficiencies.\11\ The COOP believes that the efficiencies resulting
from the consolidation of the NYSE Options market with CBOE will more
than off-set the small reduction in intermarket competition.
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\11\ See COOP Letter.
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IV. Discussion
The Commission believes CBOE's proposed rule change is consistent
with Section 6(b)(5) of the Act.\12\ Section 6(b)(5) requires, among
other things, that the rules of an exchange be designed to promote just
and equitable principles of trade, perfect the mechanism of a free and
open national market system, and, in general, to further investor
protection and the public interest.
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\12\ 15 U.S.C. 78f(b)(5).
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Pursuant to the terms of the Transfer Agreement, CBOE proposes to
distribute 75 Permits to those NYSE specialist and non-specialist firms
and sole proprietors who operated pursuant to options trading rights on
NYSE on December 5, 1996, and who agree to transfer their options
activities to CBOE. The Commission believes the method by which the 75
Permits are distributed is equitable in that it will enable those
holders of NYSE Option trading rights who actively traded NYSE Options
as of December 5, 1996, to continue trading such options on the CBOE.
The requirement that non-specialists must relocate to Chicago in order
to obtain a Permit is a reasonable means of ensuring that a certain
level NYSE Options trading expertise will be present at CBOE, and
should help facilities the smooth transition of trading in NYSE
Options. By contrast, NYSE specialist firms may either trade in person
on CBOE, or appoint any qualified person to be the firm's nominee. The
NYSE has indicated that this distinction in treatment by CBOE among
NYSE specialist and non-specialist firms reflects CBOE's desire to
attract experienced traders, while encouraging all options specialists
to participate in the transfer.\13\
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\13\ See Securities Exchange Act Release No. 38376 (March 7,
1997), 62 FR 12671 (March 17, 1997).
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The Commission believes it is within the reasonable business
judgement of the CBOE to treat the two types of options traders
differently. Due to the expertise of the specialist firms in trading
NYSE Options, the capital commitment of the specialist firms, and the
relationships they have established with order routing firms, it is
reasonable for the CBOE to grant them more flexible Permits than other
NYSE options members.
CBOE proposes to deposit into a ``lease pool'' any of the 75
Permits not issued to, or those Permits surrendered by, NYSE specialist
and non-specialist firms. The Permits in the lease pool will be leased
through an auction or other competitive process, with lease proceeds
being paid to persons identified by the NYSE. The Commission believes
that the creation of a lease pool and the distribution of the remaining
Permits via a competitive process is an appropriate method for
assessing and distributing such Permits. This will establish a
mechanism that helps to assure that an acceptable number of options
market making firms that trade NYSE Options, thereby promoting
liquidity for those options. Furthermore, an auction or other
competitive process is a fair and equitable manner of distributing the
remaining Permits.
CBOE is requiring Permit holders to use the Permit during the first
year following the Effective Date or otherwise surrender the Permit to
the lease pool. The Commission believes this will encourage Permit
holders to utilize their trading rights, and assure that the Permits
are being used effectively and productively in the trading of NYSE
Options. CBOE also proposes to limit the rights of Permit holders to
transfer the Permits for one year following the Effective Date (except
with the consent of CBOE). This restriction also appropriately serves
to encourage Permit holders to maximize the use of the Permits. While
the Permit holders are restricted from transferring the Permits for one
year from the Effective Date, they may freely transfer the Permits
thereafter. Furthermore, NYSE specialist firms are not forbidden from
changing their nominee. Overall, the Commission believes the
restrictions on the transfer of Permits in the first year will provide
an acceptable method for CBOE to obtain the trading experts of the
Permit holders during the transition in trading of NYSE Options,
thereby encouraging a stable trading environment for NYSE Options.
CBOE's proposed rule change delineates clearly the trading rights
to which holders of the Permits are entitled (i.e., as principal in
options that were dually traded on CBOE and NYSE prior to the Effective
Date, as well as other classes of options traded on CBOE's regular
trading floor), and limits Permit holders' access to the separate CBOE
trading facility, except in special instances. The Commission believes
that the restrictions on Permit holders with regard to trading in
former dually listed options and those options traded on CBOE's regular
trading floor are appropriate requirements, consistent with the purpose
of the Transfer Agreement. These limitations allow Permit holders to
benefit from trading in dually listed options and options traded on
CBOE's trading floor, while ensuring their concentration on the trading
of NYSE Options. Moreover, the proposed limitations are merely
limitations on the benefits afforded solely by the Permit. The
Commission notes that CBOE encourages Permit holders to apply to become
CBOE members. Once approved, such Permit holders would receive all the
rights, and be subject to the same obligations, of other CBOE members.
CBOE proposes to appoint each NYSE specialist firm to which a
Permit is issued as the DPM in the same classes of NYSE Options as
those for which it was designated as a specialist on NYSE. The
Commission believes this will assure a certain level of expertise in
trading the various classes of options. Moreover, it will promote
consistency and continuity in the trading of those options, thus
facilitating the smooth trading of the NYSE Options business on the
CBOE.
CBOE's proposal restricts Permit holders from transacting business
with the public in any securities dealt in on the Exchange other than
NYSE Options. The rule sets forth the limitations of the Permit, not
the limitations of individuals who otherwise meet the Exchange's
requirements, or the requirements of any other self-regulatory
organization, for transacting such business with the public. For
example, Permit holders who become members of the Exchange may transact
business with the public if they meet the Exchange's requirements for
doing so. The Commission believes this restriction is appropriate, in
that it does not bar Permit holders, per se, but simply sets limits on
the extent of the validity of the Permit itself.
CBOE proposes to waive membership application fees in connection
with an application for approval as a Permit holder, and submission of
an application for approval as a member of the Exchange. The Commission
believes this provision is equitable, as it provides
[[Page 23519]]
an incentive for NYSE Options firms to continue their business at CBOE,
while encouraging them to become regular members of the Exchange. The
Commission believes that by waiving these fees, CBOE demonstrates its
continued support for the NYSE Options firms who will transfer their
activities to the Exchange.
CBOE is amending its rules regarding the trading of index options
and FLEX options and providing for the listing and trading of the NYA
Options. The Commission believes these changes will facilitate the
transfer, and continued trading of, NYA Options at CBOE as they were
traded on NYSE. CBOE proposes to provide for trading in QIX options,
LEAPs and reduced-value Leaps and A.M.-settled FLEX Options on the
Index pursuant to the same rules and procedures that currently govern
trading on CBOE in these types of options. The Commission believes that
the various types of options proposed by CBOE will enhance and
encourage trading of NYA Options. In this regard, the Commission
believes the rules and procedures currently governing trading on CBOE
in these options will appropriately apply to NYA Options.
CBOE proposes to amend the table of position limits set forth in
Rule 24.4 to add references to classes of index options that were
previously omitted from the table when it was last revised. Further,
CBOE proposes to clarify the language of Rule 24A.4(b) regarding
specification of exercise settlement values for FLEX Index Options. The
Commission believes these changes are reasonable as they merely clarify
existing practice and will not result in substantive changes for CBOE
members.
CBOE is constructing a new trading facility dedicated solely to
NYSE Options which will be configured and equipped in the same manner
as its existing trading floor. The surveillance and regulatory
responsibilities resulting from the transfer of the NYSE Options
business to CBOE are not expected to add significantly to CBOE's
existing regulatory workload, and CBOE believes it has adequate
resources to assume these added responsibilities. CBOE intends to add
one additional output line to the Options Price Reporting Authority
(``OPRA'') processor for purposes of transmitting market information
pertaining to NYSE Options. This will not increase the total input to
OPRA because two lines from NYSE to the OPRA processor will be
terminated at the time of the transfer to CBOE. Based on CBOE's
representations, the Commission believes that CBOE had adequate
facilities and resources to provide for the trading, surveillance and
data dissemination required to accommodate their acquisition of NYSE's
options business.
The Commission appreciates the concerns and interests expressed by
the commenters. The Commission has closely examined the critical views
of the proposal expressed in the Erlich letter, particularly that the
transfer is discriminatory, monopolistic, and constitutes an improper
sale of options from one exchange to another. While the Transfer
Agreement does provide different treatment among certain NYSE members,
the Commission believes that this appropriately reflects the enhanced
value that certain NYSE members (i.e., options specialists) provide to
the CBOE. Despite such distinctions, the Transfer Agreement, as a
whole, significantly benefits a broad cross-section of NYSE options
traders. The Commission also does not believe that the Transfer
Agreement is monopolistic, noting that four vibrant options exchanges
will remain after the transfer has been completed.\14\ Finally, the
Commission disagrees with Mr. Erlich's assertion that the Transfer
Agreement constitutes an illegal sale of a ``franchise'' in NYSE
Options. Rather, the Commission believes that the Transfer Agreement
provides an appropriate vehicle for the CBOE to purchase, through an
organized transaction, a trained pool of talent with experience in the
trading characteristics of NYSE Options. The Commission notes that any
other options exchange may, at any time, trade all or some NYSE
Options. The Commission believes that CBOE is providing a viable choice
for those NYSE Option traders who desire to continue conducting an
options business. Given NYSE's expressed intention to terminate options
trading on its Exchange, the Commission believes that the transfer of
the options business to CBOE will provide NYSE Options firms with
benefits otherwise potentially unavailable if the NYSE firms were to
negotiate individually with the CBOE.\15\
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\14\ Of the approximately 2,800 equity options currently traded,
more than 660 are dually or multiply listed. Moreover, the Act does
not require that an options exchange continue its operations. The
NYSE has made a business decision to exit the options business, and
the Act does not provide a basis to negate the decision of a
marginal exchange (in the options business) to discontinue its
operations.
\15\ The Commission also notes that any NYSE Options firm always
had the ability to become a member of any other options exchange and
conduct an options business on that exchange.
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Should the NYSE decide to re-enter the options business within a
year of the Effective Date, it has agreed to pay CBOE $500,000. The
Commission believes this agreement is reasonable and does not
constitute a ``noncompetition'' agreement between CBOE and NYSE, but
instead serves to compensate CBOE for a portion of the costs associated
with acquiring the NYSE's Options business and essentially refund the
fee earned by the NYSE for brokering the transfer of its options
business to the CBOE. Moreover, the payment amount is so small that it
would not effectively serve as any deterrent to the NYSE's re-entry
into trading NYSE Options.
V. Conclusion
For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with the Act and the rules and regulations
thereunder applicable to the CBOE, and in particular Section 6(b)(5).
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\16\ that the proposed rule change (File No. SR-CBOE-97-14) be and
hereby is approved.
\16\15 U.S.C. 78s(b)(2).
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For the Commission by the Division of Market Regulation,
pursuant to delegated authority.\17\
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\17\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-11086 Filed 4-29-97; 8:45 am]
BILLING CODE 8010-01-M