Self-Regulatory Organizations; The Options Clearing Corporation; Order Approving Proposed Rule Change as Modified by Amendment No. 1 To Revise Option Adjustment Methodology, 7701-7706 [E7-2792]

Download as PDF Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Notices 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–ISE–2007–08 and should be submitted on or before March 9, 2007. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.13 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–2793 Filed 2–15–07; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55264; File No. SR-NYSE– 2006–45] Self-Regulatory Organizations; New York Stock Exchange LLC.; Order Approving Proposed Rule Change Relating to Amendments to Exchange Rule 638 Concerning Mediation February 9, 2007. I. Introduction On June 22, 2006, the New York Stock Exchange LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’), 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 amendments to Exchange Rule 638 concerning mediation. The proposed rule change was published for comment in the Federal Register on December 21, 2006,3 and the Commission received one comment on the proposal.4 This order approves the proposed rule change. II. Description The proposal would delete references in NYSE Rule 638 to the mediation pilot program that expired on January 31, 2003. The proposed amendments would also codify or, in some cases, recodify certain existing mediation procedures, including that: (1) The mediator’s fees and method of payment are subject to agreement of the parties and the mediator, and all such fees and costs incurred in mediation are the parties’ responsibility; (2) an adjournment fee will be assessed if an arbitration hearing is adjourned for purposes of the parties pursuing mediation unless the fee is waived under Exchange Rule 617; (3) a mediator may not represent a party or act as an arbitrator in an arbitration relating to the matter mediated, nor be called to testify regarding the mediation in any proceeding;5 and (4) the mediation is confidential and no record is kept of the proceeding,6 and, except as may be required by law, the parties and mediator agree not to disclose the substance of the mediation without the prior written authorization of all parties to the mediation. In addition, the proposed rule change would clarify that any party may withdraw from mediation at any time prior to the execution of a settlement agreement upon written notification to all other parties, the mediator, and the Director of Arbitration. It also would clarify that parties may select a mediator on their own or request a list of potential mediators from the Exchange, and that, upon request of any party, the Director of Arbitration would send the parties a list of five potential mediators together with the mediators’ biographical information described in Rule 608.7 Finally, the proposed rule change would provide that the parties will advise the Exchange as to the name of the agreed-upon mediator. In addition, it would clarify that once the parties agree to mediate, the Exchange would facilitate the mediation, if requested, by contacting the mediator selected and by assisting in making necessary arrangements, as well as that parties to mediation may use the Exchange meeting facilities in New York, when available, without charge. III. Summary of Comment The Commission received one comment on the proposal.8 The commenter objected to the provision of the proposed rule change that would prohibit a mediator from acting as an arbitrator in an arbitration related to the matter mediated.9 The NYSE responded that because the provision is substantially the same as in the current rule this comment is outside the scope of this rule filing.10 The Commission finds the NYSE’s determination that these comments are beyond the scope of the rule filing to be reasonable because they suggest substantive changes from 5 See current NYSE Rule 638(a)(4). sroberts on PROD1PC70 with NOTICES 6 Id. 13 17 7 See 1 15 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 See Exchange Act Release No. 54917 (Dec. 11, 2006), 71 FR 76714 (Dec. 21, 2006). 4 See letter from Stephen A. Hochman to Nancy Morris, dated January 16, 2007 (‘‘Hochman’’). 8 Hochman. VerDate Aug<31>2005 19:03 Feb 15, 2007 Jkt 211001 current NYSE Rule 638(a)(2). 9 Id. 10 See letter from Mary Yeager, Assistant Secretary, NYSE, to Katherine A. England, Assistant Director, Division of Market Regulation, dated February 7, 2007. PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 7701 the current mediation rules that were not intended to be addressed by this rule filing. Thus, the Commission finds the NYSE’s determination not to amend the proposed rule change in connection with this comment at this time to be reasonable. IV. Discussion and Findings After careful review, the Commission finds that the proposed rule change is consistent with the Act and, in particular, with Section 6(b)(5) of the Act, which requires, among other things, that the NYSE’s rules be designed to promote just and equitable principles of trade, and, in general, to protect investors and the public interest.11 The Commission believes that the proposed rule change will bring greater clarity to the mediation process by deleting outdated references to the expired mediation pilot program and codifying certain existing mediation procedures. V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act 12 that the proposed rule change (SR–NYSE–2006– 45), be, and hereby is, approved. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.13 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–2721 Filed 2–15–07; 8:45 am] BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55258; File No. SR–OCC– 2006–01] Self-Regulatory Organizations; The Options Clearing Corporation; Order Approving Proposed Rule Change as Modified by Amendment No. 1 To Revise Option Adjustment Methodology February 8, 2007. I. Introduction On January 12, 2006, The Options Clearing Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission (‘‘Commission’’) proposed rule change SR–OCC–2006–01 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’).1 On March 9, 2006, the Commission published notice of the proposed rule 11 15 U.S.C. 78f(b)(5). U.S.C. 78s(b)(2). 13 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 12 15 E:\FR\FM\16FEN1.SGM 16FEN1 7702 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Notices change to solicit comments from interested parties.2 The Commission received ten comment letters upon publication of the notice.3 To address the concerns raised by the commenters, OCC amended the proposed rule change on September 25, 2006. On November 21, 2006, the Commission published notice of the amended proposed rule change to solicit comments from interested parties.4 The Commission received four additional comment letters.5 For the reasons discussed below, the Commission is approving the proposed rule change.6 II. Description sroberts on PROD1PC70 with NOTICES OCC is amending Article VI (Clearance of Exchange Transactions), Section 11A of its By-Laws to (1) Eliminate the need to round strike prices and/or units of trading in the event of certain stock dividends, stock distributions, and stock splits and (2) provide for the adjustment of outstanding options for special dividends (i.e., cash distributions not declared pursuant to a policy or practice of paying such distributions on a quarterly or other regular basis). The proposed rule change also adds a $12.50 per contract threshold amount for cash dividends and distributions to trigger application of OCC’s adjustment rules. 2 Securities Exchange Act Release No. 53400 (March 2, 2006), 71 FR 12226. 3 Joseph Haggenmiller (March 8, 2006); Erik A. Hartog, Operating Manager, Allagash Trading LLC (March 21, 2006); Jeffrey Woodring (March 22, 2006); Adam Besch-Turner (March 23, 2006); Christopher Nagy, Chairman, Options Committee, Securities Industry Association (March 24, 2006); Mike Ianni (April 5, 2006); Mike Ianni (April 5, 2006); Peter van Dooijeweert, President, Alopex Capital Management, LLC (April 26, 2006); Bob Linville and Deborah Mittelman, Service Bureau Committee Co-Chairs, Financial Information Forum (May 2, 2006); and William H. Navin, Executive Vice President, General Counsel, and Secretary, The Options Clearing Corporation (September 29, 2006). 4 Securities Exchange Act Release No. 54748 (November 14, 2006), 71 FR 67415. 5 James Knight, Vice President, Manager, Options Trading Strategies, Raymond James Associates, Gary Franklin, Manager of Option Trading, Managing Director, Senior Options Principal, Morgan Keegan Co., and Dennis Moorman, Manager-Options Department, J.J.B. Hilliard, W.L. Lyons, Inc. (December 12, 2006); William H. Navin, Executive Vice President, General Counsel, and Secretary, The Options Clearing Corporation (December 21, 2006); Erik A. Hartog, Operating Manager, Allagash Trading LLC (January 8, 2007); and William H. Navin, Executive Vice President, General Counsel, and Secretary, The Options Clearing Corporation (January 9, 2007). 6 OCC filed a companion proposed rule change seeking to revise its stock futures adjustment methodology in a manner consistent with the revised option adjustment methodology. Securities Exchange Act Release No. 54898 (December 8, 2006), 71 FR 75287 (December 14, 2006) (File No. SR–OCC–2006–08). VerDate Aug<31>2005 19:03 Feb 15, 2007 Jkt 211001 A. Changes Relating to Adjustments for Certain Stock Dividends, StockDistributions, and Stock Splits Prior to this rule change, OCC’s ByLaws specified two alternative methods of adjusting for stock dividends, stock distributions, and stock splits. In cases where one or more whole shares are issued with respect to each outstanding share, the number of outstanding option contracts is correspondingly increased and strike prices are proportionally reduced.7 In all other cases, the number of shares to be delivered under the option contract is increased and the strike price is reduced proportionately.8 Although these two methods have been used for many years, in certain circumstances either method can produce a windfall profit for one side and a corresponding loss for the other side due to rounding of adjusted strike prices. These profits and losses, while small on a per contract basis, can be significant for large positions. Because equity option strike prices are currently stated in eighths, OCC’s By-Laws require adjusted strike prices to be rounded to the nearest eighth. For example, if an XYZ $50 option for 100 shares were to be adjusted for a 3-for2 split, the deliverable would be increased to 150 shares, and the strike price would be adjusted to $33.33 and then be rounded up to $333⁄8. Prior to the adjustment, a call holder would have had to pay $5,000 to exercise ($50 × 100 shares). After the adjustment, the caller would have to pay $5,006.25 for the equivalent stock position ($33.375 × 150 shares). Conversely, an exercising put holder would receive $5,006.25 instead of $5,000. The $6.25 difference represents a loss for call holders and put writers and a windfall for put holders and call writers. A loss/windfall can also occur when the split results in a fractional deliverable (e.g., a 4-for-3 split produces a deliverable of 133.3333 shares). In those cases, OCC’s By-Laws required that the deliverable be rounded down to eliminate the fraction, and if appropriate, the strike price be further adjusted to the nearest eighth to compensate for the diminution in the value of the contract resulting from the elimination of the fractional share. However, even if these steps are taken, small rounding inequities often remain. 7 For example, in the event of a 2-for-1 split, an XYZ $60 option calling for the delivery of 100 shares of XYZ stock would be subdivided into two XYZ $30 options, each calling for the delivery of 100 shares of XYZ stock. 8 For example, in a 3-for-2 split, an XYZ $60 option calling for the delivery of 100 shares would be adjusted to call for the delivery of 150 shares and the strike price would be reduced to $40. PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 The windfall profits and correspondent losses resulting from the rounding process have historically been accepted as immaterial. However, due to recent substantial increases in trading volume and position size, they have become a source of concern to exchanges and market participants. In addition, OCC has been informed that some traders may be exploiting announcements of splits and similar events by quickly establishing positions designed to capture rounding windfalls at the expense of other market participants. The inequity that results from rounding strike prices can be eliminated by using a different adjustment method whereby the deliverable is adjusted but the strike prices or the values used to calculate aggregate exercise prices and premiums are not. As an illustration of the new adjustment methodology, in the XYZ $50 option 3-for-2 split example described above, the resulting adjustment would be a deliverable of 150 shares of XYZ stock while the strike price would remain at $50. In this case, the presplit multiplier of 100, used to extend aggregate strike price and premium amounts, is unchanged. For example, a premium of 1.50 would equal $150 ($1.5 × 100) both before and after the adjustment. An exercising call holder would continue to pay $5,000 ($50 times 100) but would receive 150 shares of XYZ stock instead of 100.9 This is the method currently used for property distributions such as spin-offs and special dividends large enough to require adjustments under OCC’s ByLaws. 10 The inequity that results from the need to eliminate fractional shares from the deliverable and to compensate by further reducing the strike price to the nearest eighth can be eliminated by adjusting the deliverable to include cash in lieu of the fractional share. As an illustration, consider a 4-for-3 split of the stock underlying an XYZ $80 option with a 100 share deliverable. Employing the new adjustment method, the deliverable would be adjusted to 133.3333 shares, which would be rounded down to 133 shares, and the strike price would remain $80. However, instead of compensating for the elimination of the .3333 share by 9 The same adjustment methodology will apply to reverse stock splits or combination of shares. For example, in a 3-for-4 reverse stock split on a XYZ $50 option calling for the delivery of 100 shares, the resulting adjustment would be a deliverable of 75 shares of XYZ stock while the strike price would remain at $50. 10 The adjustment methodology used for spinoffs, mergers, and special cash dividends is to adjust the unit of trading while leaving the strike price unchanged. E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Notices reducing the strike prices, the strike prices would remain unchanged, and the cash value of the eliminated fractional share (.3333 x the post-split value of a share of XYZ stock as determined by OCC) would be the deliverable along with the 133 shares. The adjusted option would also continue to use 100 as the multiplier to calculate aggregate strike and premium amounts. The revised adjustment methodology will not be applied to 2-for-1 or 4-for1 stock distributions or splits (since such distributions or splits normally result in strike prices that do not require rounding to the nearest eighth) unless the split requires rounding of the strike price, which may occur where the strike price was previously adjusted due to an earlier stock distribution or split. In addition, the revised adjustment methodology will not generally be used for stock dividends, stock distributions, or stock splits with respect to any series of options having exercise prices stated in decimals.11 For those options, the existing adjustment rules will continue to apply. The reason for this is that once the market has converted to decimal strikes, the rounding errors created by rounding to the nearest cent would be immaterial even given the larger positions taken in today’s markets and the other factors discussed above. Because conversion to decimal strikes might be phased in rather than applied to all series of equity options simultaneously, the rule has been drafted to cover both methods of expressing exercise prices. The changes in adjustment methodology will not be implemented until the exchanges have conducted appropriate educational efforts and definitive copies of an appropriate supplement to the options disclosure document, Characteristics and Risks of Standardized Options, are available for distribution.12 sroberts on PROD1PC70 with NOTICES B. Changes to the Definition of ‘‘Ordinary Dividends and Distributions’’ Currently, Article VI, Section 11A(c) of OCC’s By-Laws provides that as a general rule, outstanding options will not be adjusted to compensate for ordinary cash dividends. Interpretation and Policy .01 under Section 11A of Article VI provides that a cash dividend will generally be deemed to be 11 Although there are currently no decimal strikes for equity options, OCC wants to avoid the need for further amendments to its By-Laws and the options disclosure document in the event that such strikes are introduced in the future. 12 OCC will notify the Commission and issue an Important Notice when the new adjustment methodology is implemented. VerDate Aug<31>2005 19:03 Feb 15, 2007 Jkt 211001 ‘‘ordinary’’ if the amount does not exceed 10% of the value of the underlying stock on the declaration date (‘‘10% Rule’’). The OCC Securities Committee is authorized to decide on a case-by-case basis whether to adjust for dividends exceeding that amount. As a result, OCC historically has not adjusted for special cash dividends unless the amount of the dividend was greater than 10% of the stock price at the close of trading on the declaration day. The 10% Rule predated a number of significant developments, including the introduction of Long-term Equity AnticiPation Security (‘‘LEAPS’’) options, the sizeable open interest seen today, the large contract volume associated with trading and spreading strategies, and the modern option pricing models that take dividends into account. When open interests and individual positions were smaller, not adjusting for dividends of less than 10% did not have the pronounced impact it does today. Additionally, changes to the tax code which now tax dividends more favorably have provided an incentive for companies to pay more dividends, including special dividends. In light of these considerations, OCC believes it is appropriate to now revise the 10% Rule. Under OCC’s revision, a cash dividend or distribution would be considered ordinary (regardless of size) if the OCC Securities Committee determines that such dividend or distribution was declared pursuant to a policy or practice of paying such dividends or distributions on a quarterly or other regular basis. In addition, as a general rule, a cash dividend or distribution that is less than $12.50 per contract would not trigger the adjustment provisions of Article VI, Section 11A. 7703 This economic disadvantage is further magnified if the option position is large, as is often the case today. Conversely, put holders often receive a windfall benefit from the increase in the in-themoney value on the ex date. To the extent that equity options can be priced accurately and consistently without dislocations due to unforeseen special dividends, these economic disadvantages can be avoided. Moreover, because special dividends are one-off events, adjusting for them should not cause the proliferation of outstanding options series and symbols that would result from adjusting for regular dividends as explained below. 2. De Minimis Threshold Adjusting for dividends can cause a proliferation of outstanding option symbols and series.14 In the interest of providing some limit on option symbol proliferation, the revised adjustment policy will include a de minimis threshold of $12.50 per contract. Special dividends smaller than this amount will not trigger an adjustment. OCC believes that a threshold that is a set dollar amount is preferable to one that is a percentage of the stock price (like OCC’s 10% Rule) because there are operational problems with applying a percentage threshold. Under the 10% Rule, in order to determine whether the threshold is met, the per share dividend amount is added to the closing price of the underlying security on the dividend declaration date. The date the dividend is announced (by press release or by some other means) is not normally the ‘‘declaration date’’ when the dividend is officially declared by an issuer’s board of directors. Until the actual declaration date, investors and traders may not know whether or not an announced 1. No Adjustment for Regularlydividend will trigger an adjustment Scheduled Dividends Needed based on the company’s share price. In Dividends declared by an issuer the interim, it is difficult for traders and pursuant to a policy or practice of such issuer are known and can thus be priced investors to price their options because they do not know if an adjustment will into option premiums. By definition, be made. however, special dividends cannot be The advantage of a fixed dollar anticipated in advance and therefore cannot be integrated into option pricing threshold is the avoidance of models.13 If adjustments are not made in uncertainty. The per contract value of the dividend can be immediately response to special dividends, call determined without the need to wait holders can capture the dividends only until the declaration date and without by exercising their options. Often in the need to do a calculation based on these cases, especially with LEAPS the closing price of the underlying options or FLEX options which can last shares. for 5 to 10 years, early exercise would sacrifice substantial option time value. 13 OCC has been told that some traders form judgments as to the likelihood that certain issuers may declare special cash dividends and factor those judgments into their pricing models. PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 14 Symbols proliferate when adjustments are made because often the dividend amount must be added to the deliverable yielding a non-standard option. The exchanges then introduce standard options with the same strikes. E:\FR\FM\16FEN1.SGM 16FEN1 7704 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Notices 3. Consistency Across Relevant Interpretations Interpretations and Policies .01 and .08 under Article VI, Section 11A apply to cash distributions. Interpretation and Policy .01 (as amended by this rule change) will apply in general to all cash distributions. Interpretation and Policy .08 currently carves out exceptions for fund share cash distributions and does not include a threshold minimum. In the interest of clarity and consistency with Interpretation and Policy .01, Interpretation .08 is being revised to provide for the same $12.50 per contract threshold for fund share cash distributions. Clause (ii) of Interpretation and Policy .08 sets forth an exception to the 10% Rule and will be deleted when the 10% Rule is abolished. III. Comment Letters The Commission received fourteen comment letters in response to the proposed rule change.15 Eleven of the comment letters opposed the rule change. OCC submitted three letters responding to the comment letters. Seven of the comment letters opposed elimination of the 10% Rule.16 Three of the comment letters opposed the adjustment methodology for stock dividends, stock distributions, and stock splits.17 sroberts on PROD1PC70 with NOTICES A. Comments Opposing the 10% Rule Those commenters opposing elimination of the 10% Rule did so for various reasons. First, they felt that elimination of the 10% Rule for existing contracts would be unfair to the contract traders who have priced adjustments into their pricing models based on their estimated probability that an issuer will pay a special dividend with the 15 Supra notes 3 and 5. Joseph Haggenmiller’s comment letter objected to the entire proposed rule change but did not state why. Joseph Haggenmiller (March 8, 2006). The comment letters received after OCC’s amendment did not comment on the amendment. 16 Erik A. Hartog, Operating Manager, Allagash Trading LLC (March 21, 2006); Jeffrey Woodring (March 22, 2006); Adam Besch-Turner (March 23, 2006); Mike Ianni (April 5, 2006); Mike Ianni (April 5, 2006); Peter van Dooijeweert, President, Alopex Capital Management, LLC (April 26, 2006); and Erik A. Hartog, Operating Manager, Allagash Trading LLC (January 8, 2007). 17 Christopher Nagy, Chairman, Options Committee, Securities Industry Association (March 24, 2006); Bob Linville and Deborah Mittelman, Service Bureau Committee Co-Chairs, Financial Information Forum (May 2, 2006); and James Knight, Vice President, Manager, Options Trading Strategies, Raymond James Associates, Gary Franklin, Manager of Option Trading, Managing Director, Senior Options Principal, Morgan Keegan Co., and Dennis Moorman, Manager-Options Department, J.J.B. Hilliard, W.L. Lyons, Inc. (December 12, 2006). VerDate Aug<31>2005 19:03 Feb 15, 2007 Jkt 211001 assumption that OCC would adjust for special dividends based on the 10% Rule. OCC responded that it did not believe special dividends could be anticipated in advance and therefore could not be integrated into pricing models. However, OCC discussed the matter with market participants and now understands that some traders do estimate the probability of special dividends by selected issuers and do factor those estimates into their pricing models. In response, OCC amended the proposed rule change so that the 10% Rule would be eliminated and replaced with the dollar threshold test beginning with dividends announced on and after February 1, 2009. The few outstanding options series with expirations beyond that date will be grandfathered and will be assigned separate trading symbols. Second, some commenters expressed their concerns that elimination of the 10% Rule would create uncertainty as to whether OCC would classify particular vidends as ordinary or special and that market liquidity for the affected options would disappear until OCC announced whether a dividend was ordinary or special. OCC responded that a dividend will be classified as ordinary if it is declared pursuant to a policy or practice of paying such dividends on a quarterly or other regular basis. The issue as to whether a particular dividend or distribution fits the criteria to be classified as ordinary or special would be determined by a panel of the OCC Securities Committee, which consists of two representatives of each exchange that lists options on the underlying security and one representative of OCC, who votes only in the event of a tie vote. OCC contends that most special dividends are in such amounts and/or payable on such dates that it will be immediately obvious to the market that they are not being declared pursuant to a policy or a practice of paying such dividends on a quarterly or other regular basis. In addition, issuers normally classify a dividend as special or ordinary when the dividend is announced. While this will not control OCC’s determination of whether a dividend is ordinary or special, in the vast majority of cases a dividend classified by the issuer as special would not fit OCC’s definition of ordinary cash dividends or distributions. In certain cases the OCC Securities Committee will need to make a judgment as to whether to classify a dividend as ordinary or special. The uncertainty which may exist in such cases will diminish over time as OCC publishes interpretations and policies and a body of precedent develops. OCC intends to publish informational PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 material indicating how these situations will be handled. Pursuant to the amendment, the elimination of the 10% Rule will only be effective for dividends announced on and after February 1, 2009, which should allow ample lead time for OCC’s educational effort to get under way. OCC also responded that a balance needs to be struck between uncertainty and fairness in that under the 10% Rule, market participants incur large losses in the case of a 9.9% special dividend but are made whole if the special dividend exceeds 10% of the closing stock price on the declaration date. The commenters’ third major concern in opposing elimination of the 10% Rule was that the rule change would lead to symbol proliferation in that any special dividend greater than $12.50 per contract would trigger a contract adjustment and a new symbol. The frequency of such adjustments could be very high, causing a sharp spike in symbol proliferation. OCC responded by acknowledging that this is true for the short term but that the need for additional symbols would end when the industry converts to decimal stike prices.18 Also, OCC believes that the inequities caused by the 10% Rule outweigh any operational burdens associated with symbol proliferation.19 The fourth major concern raised by the commenters in opposing the 10% Rule was that the revised rule could reduce liquidity for adjusted options because investors are drawn to round increments in strike prices. The 10% Rule has always avoided liquidity loss by only creating odd strike prices when the dividend is so extraordinarily disproportionate as to require adjustment. OCC responded that despite the thousands of contractual adjustments made in over 33 years of options trading on U.S. markets, it knows of no case where liquidity was wiped out for an adjusted series. Market-makers on U.S. options exchanges are numerous, highly competitive, quick to exploit arbitrage opportunities, and in many cases obligated by exchange rules to make 18 The current plan is to begin converting fractional strikes to decimal strikes in November 2009. 19 Since the beginning of 2006, OCC has been tracking special dividends that were too small to trigger an adjustment under the 10% Rule but that would be large enough to cause an adjustment under the revised rule. Up to September 2006, there were a total of 22 more dividends which would have required additional symbols for conventional equity options. In some cases, new symbols would also have had to be assigned for LEAP and flex contracts. According to OCC, the number is not small but is certainly not large relative to the hundreds of adjusted and wrap symbols already assigned. E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Notices markets in every series of every class in which they quote.20 B. Comments Opposing the Adjustment Methodology for Stock Dividends, Stock Distributions, and Stock Splits The commenters who opposed the revised adjustment methodology for stock dividends, stock distributions, and stock splits did so by suggesting alternative models such as those employed by Eurex and other non-U.S. exchanges.21 OCC responded that while it has an open mind about making further changes to its adjustment methodology, it did not believe it would be feasible to adopt any of the alternative models proposed by the commenters because they would require extensive and onerous systems changes by OCC, exchanges, members, and vendors. One of the commenters who opposed the adjustment methodology argued that the adjustment methodology is new and will result in significant modifications to the systems which support the adjustment methodology OCC seeks to replace.22 In addition, the commenter argued that if OCC’s proposed adjustment methodology is implemented and the strike price does not change when an adjustment takes place, some other indicator in the displays used to trade options must be changed to somehow alert the investor that the option represents an adjusted contract. OCC responded that it is simply applying to stock dividends, stock distributions, and stock splits the same adjustment methodology used for over thirty years for spin-offs, mergers, and special cash dividends. In addition, OCC argued, price vendors, service bureaus, and securities firms currently do and have always identified adjusted contracts through the use of adjusted symbols. IV. Amendment To address certain concerns expressed in the comment letters and by others, OCC amended the proposed rule change. OCC understands that certain option traders may have integrated into their pricing models the probability of special dividends and their being adjusted based on the OCC rules 20 See, e.g., CBOE Rules 8.7 and 8.85. Nagy, Chairman, Options Committee, Securities Industry Association (March 24, 2006) and James Knight, Vice President, Manager, Options Trading Strategies, Raymond James Associates, Gary Franklin, Manager of Option Trading, Managing Director, Senior Options Principal, Morgan Keegan Co., and Dennis Moorman, Manager-Options Department, J.J.B. Hilliard, W.L. Lyons, Inc. (December 12, 2006). 22 Bob Linville and Deborah Mittelman, Service Bureau Committee Co-Chairs, Financial Information Forum (May 2, 2006). sroberts on PROD1PC70 with NOTICES 21 Christopher VerDate Aug<31>2005 19:03 Feb 15, 2007 Jkt 211001 currently in effect and that eliminating the 10% Rule with respect to existing contracts may unfairly affect these options traders. To ensure that no options series that were opened before approval of the proposed rule change are affected by elimination of the 10% Rule, OCC’s elimination of the 10% Rule and implementation of the fixed dollar threshold will take effect only for corporate events announced on or after February 1, 2009. OCC plans to provide ODD disclosure of this rule change before May 29, 2007, (after which date the exchanges would normally begin introducing LEAPS expiring in 2010 making a 2009 implementation impracticable). The delay in implementation will ensure that all options series opened before the ODD disclosure is made available (other than certain ‘‘flex’’ options that will be grandfathered under the old rule) will have expired before the change is effected.23 While delaying the implementation until 2009 postpones the benefit of making this needed change, it addresses the concerns of firms that find the operational hurdles and fairness issues associated with an earlier implementation onerous. V. Discussion After carefully considering the proposed rule change as amended and all of the written comments received, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder and particularly with the requirements of Section 17A(b)(3)(F).24 Section 19(b) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization. Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed, in general, to protect investors and the public interest. 23 OCC intends to take a ‘‘snapshot’’ of flex series expiring after January 31, 2009, that are outstanding at the time when ODD disclosure of the rule change is made. Those series will be assigned distinctive trading symbols and ‘‘grandfathered’’ under the old rule. Trading will continue normally in grandfathered series until their expiration, but the exchanges would be free to open otherwise identical non-grandfathered series, which would be identified by conventional flex trading symbols. If ODD disclosure is not made until after the December 2006 expiration, it may also be necessary to grandfather two classes of LEAPs with December expirations (SPY and S&P 100 i-Shares) because the exchanges would ordinarily introduce new series expiring in December 2009 after the December 2006 expiration. 24 15 U.S.C. 78q–1(b)(3)(F). PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 7705 The Commission believes that OCC’s rule change is consistent with this Section because (1) it is intended to eliminate inequities that result from certain rounding practices currently required by OCC’s By-Laws and thus should protect investors and (2) it is intended to make more predictable when cash distributions by an issuer will result in an adjustment to an option contract and thus should make the process for adjustments more equitable for all investors. OCC has amended the rule change in response to many of the commenters that opposed various portions of the rule change for various reasons. Some commenters expressed concern that elimination of the 10% Rule would create uncertainty as to whether OCC would classify particular dividends as ordinary or special and that market liquidity for the affected options would disappear until OCC made an announcement whether a dividend is ordinary or special. The Commission feels that OCC’s proposed rule is clear as to the procedure that will be used to classify a dividend as ordinary or special. A dividend will be classified as ordinary if it is declared pursuant to a policy or practice of paying such dividends on a quarterly or other regular basis. The Commission finds persuasive OCC’s argument that most special dividends are in such amounts and/or payable on such dates that it will be immediately obvious to the market that they are not being declared pursuant to a policy or a practice of paying such dividends on a quarterly or other regular basis. In addition, issuers normally classify a dividend as special or ordinary when the dividend is announced, and in the vast majority of cases a dividend classified by the issuer as special would not fit OCC’s definition of ordinary cash dividends or distributions. Any uncertainty which may exist in cases where the OCC Securities Committee will need be to make a judgment as to whether a dividend is ordinary or special should diminish over time as OCC publishes interpretations and policies and a body of precedent develops. In addition, the Commission is not convinced, considering that adjusted options have shown no lack of liquidity in the past, that the elimination of the 10% Rule will wipe out liquidity for adjusted options. Some commenters stated that the elimination of the 10% Rule for existing contracts would be unfair to those traders that have built into their pricing models the possibility that an issuer would declare a special dividend and the effect of that dividend under the E:\FR\FM\16FEN1.SGM 16FEN1 7706 Federal Register / Vol. 72, No. 32 / Friday, February 16, 2007 / Notices sroberts on PROD1PC70 with NOTICES 10% Rule. In response, OCC amended the filing so that the 10% Rule will be eliminated and the new dollar threshold implemented only for dividends announced on and after February 1, 2009, so that the majority of existing options contracts will not be affected. Some commenters also argued that elimination of the 10% Rule would lead to symbol proliferation in that any special dividend greater than $12.50 per contract would trigger a contract adjustment and a new symbol. The Commission believes that any symbol proliferation should be short lived as the industry is planning to convert from fractional strikes to decimal strikes in November 2009 and that the benefits of the change outweigh any burdens. Of particular concern to the Commission is the inequitable economic impact of unanticipated special dividends on market participants when the 10% Rule is applied. The Commission believes that OCC’s rule change makes appropriate changes to the way that OCC handles special dividends to address this problem. Those commenters that disagreed with the adjustment methodology for stock dividends, stock distributions, and stock splits suggested changes that would require major systems revisions. The Commission believes that such systems changes would be a tremendous burden on the industry and the costs would not outweigh any benefits. Finally, it was argued that major systems changes would need to be undertaken and symbols changed to somehow alert investors that an option represents an adjusted contract. The Commission is not persuaded by this argument because the adjustment methodology OCC is going to apply to stock dividends, stock distributions, and stock splits is the same adjustment methodology it has used for over thirty years for spin-offs, mergers, and extraordinary cash dividends and identification of these adjusted contracts does not appear to have presented a problem. VI. Conclusion On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular Section 17A of the Act and the rules and regulations thereunder.25 In approving the proposed rule change, the Commission considered the proposal’s impact on efficiency, competition and capital formation. It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the 25 15 U.S.C. 78c(f). VerDate Aug<31>2005 19:03 Feb 15, 2007 Jkt 211001 proposed rule change (File No. SR– FICC–2006–01), as modified by Amendment No. 1, be and hereby is approved. For the Commission by the Division of Market Regulation, pursuant to delegated authority.26 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–2792 Filed 2–15–07; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55261; File No. SR–Phlx– 2007–01] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change and Amendment No. 1 Thereto Relating to Calculation and Dissemination of PHLX/KBW Bank Index Values February 8, 2007. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on January 18, 2007, the Philadelphia Stock Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Phlx. On February 2, 2007, the Phlx filed Amendment No. 1 to the proposed rule change. The Phlx filed the proposed rule change as a ‘‘non-controversial’’ rule change pursuant to Section 19(b)(3)(A) of the Act 3 and Rule 19b– 4(f)(6) thereunder,4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons.5 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Phlx proposes that Dow Jones & Company, Inc. (‘‘Dow Jones’’) will 26 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A). 4 17 CFR 240.19b–4(f)(6). 5 Certain additions and technical corrections were made throughout the discussion of the proposed rule change pursuant to conversations with Phlx staff. Telephone conversation between Jurij Trypupenko, Director and Counsel, Phlx, and Kate Robbins, Attorney, Division of Market Regulation, Commission, on February 5, 2007. 1 15 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 replace the Exchange as the party solely responsible for the calculation and dissemination of the current index values 6 of the PHLX/KBW Bank Index (‘‘Bank Index’’ or ‘‘Index’’).7 II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Phlx 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 Phlx 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 that Dow Jones, rather than the Exchange, will calculate and disseminate the current index values of the Bank Index. No other changes are proposed in respect of the Index. Options on the Bank Index, a narrowbased (industry) index, were originally listed in 1992.8 The Commission’s Approval Order regarding the Bank Index and options on it contains the following language about the calculation of the underlying current index value: Even though the Index will be maintained by KBW, the Phlx represents that the Exchange will be solely responsible for the calculation of the Index and that the Index value will be calculated and disseminated in such a way that neither KBW nor any other party will be in receipt of the Index value prior to the public dissemination of the 6 Bridge Data, which merged into Reuters, at various times has calculated and disseminated relevant index values on behalf of the Exchange. 7 KBW is a registered broker-dealer that, among other things, specializes in U.S. bank stocks and is recognized as the ‘‘financial services industry authority.’’ The Bank Index (BKX), also known as the KBW Bank Index and as a sector index, is a European-style modified-capitalization-weighted index composed of 24 geographically dispersed companies representing national money center banks and leading regional institutions. KBW has informed the Exchange that an independent third party, Dow Jones, on behalf of KBW will calculate and publicly disseminate the current values of the Bank Index and will follow necessary procedures such as publicly reporting the current underlying index values at least once every 15 seconds during the periods that options on the Bank Index are traded. 8 See Securities Exchange Act Release No. 31145 (September 3, 1992), 57 FR 41531 (September 10, 1992) (SR–Phlx–91–27) (‘‘Approval Order’’). E:\FR\FM\16FEN1.SGM 16FEN1

Agencies

[Federal Register Volume 72, Number 32 (Friday, February 16, 2007)]
[Notices]
[Pages 7701-7706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2792]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55258; File No. SR-OCC-2006-01]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Order Approving Proposed Rule Change as Modified by Amendment No. 1 To 
Revise Option Adjustment Methodology
�MDBU�*ERR01*�MDNM�
February 8, 2007.

I. Introduction

    On January 12, 2006, The Options Clearing Corporation (``OCC'') 
filed with the Securities and Exchange Commission (``Commission'') 
proposed rule change SR-OCC-2006-01 pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'').\1\ On March 9, 2006, the 
Commission published notice of the proposed rule

[[Page 7702]]

change to solicit comments from interested parties.\2\ The Commission 
received ten comment letters upon publication of the notice.\3\ To 
address the concerns raised by the commenters, OCC amended the proposed 
rule change on September 25, 2006. On November 21, 2006, the Commission 
published notice of the amended proposed rule change to solicit 
comments from interested parties.\4\ The Commission received four 
additional comment letters.\5\ For the reasons discussed below, the 
Commission is approving the proposed rule change.\6\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ Securities Exchange Act Release No. 53400 (March 2, 2006), 
71 FR 12226.
    \3\ Joseph Haggenmiller (March 8, 2006); Erik A. Hartog, 
Operating Manager, Allagash Trading LLC (March 21, 2006); Jeffrey 
Woodring (March 22, 2006); Adam Besch-Turner (March 23, 2006); 
Christopher Nagy, Chairman, Options Committee, Securities Industry 
Association (March 24, 2006); Mike Ianni (April 5, 2006); Mike Ianni 
(April 5, 2006); Peter van Dooijeweert, President, Alopex Capital 
Management, LLC (April 26, 2006); Bob Linville and Deborah 
Mittelman, Service Bureau Committee Co-Chairs, Financial Information 
Forum (May 2, 2006); and William H. Navin, Executive Vice President, 
General Counsel, and Secretary, The Options Clearing Corporation 
(September 29, 2006).
    \4\ Securities Exchange Act Release No. 54748 (November 14, 
2006), 71 FR 67415.
    \5\ James Knight, Vice President, Manager, Options Trading 
Strategies, Raymond James Associates, Gary Franklin, Manager of 
Option Trading, Managing Director, Senior Options Principal, Morgan 
Keegan Co., and Dennis Moorman, Manager-Options Department, J.J.B. 
Hilliard, W.L. Lyons, Inc. (December 12, 2006); William H. Navin, 
Executive Vice President, General Counsel, and Secretary, The 
Options Clearing Corporation (December 21, 2006); Erik A. Hartog, 
Operating Manager, Allagash Trading LLC (January 8, 2007); and 
William H. Navin, Executive Vice President, General Counsel, and 
Secretary, The Options Clearing Corporation (January 9, 2007).
    \6\ OCC filed a companion proposed rule change seeking to revise 
its stock futures adjustment methodology in a manner consistent with 
the revised option adjustment methodology. Securities Exchange Act 
Release No. 54898 (December 8, 2006), 71 FR 75287 (December 14, 
2006) (File No. SR-OCC-2006-08).
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II. Description

    OCC is amending Article VI (Clearance of Exchange Transactions), 
Section 11A of its By-Laws to (1) Eliminate the need to round strike 
prices and/or units of trading in the event of certain stock dividends, 
stock distributions, and stock splits and (2) provide for the 
adjustment of outstanding options for special dividends (i.e., cash 
distributions not declared pursuant to a policy or practice of paying 
such distributions on a quarterly or other regular basis). The proposed 
rule change also adds a $12.50 per contract threshold amount for cash 
dividends and distributions to trigger application of OCC's adjustment 
rules.

A. Changes Relating to Adjustments for Certain Stock Dividends, 
StockDistributions, and Stock Splits

    Prior to this rule change, OCC's By-Laws specified two alternative 
methods of adjusting for stock dividends, stock distributions, and 
stock splits. In cases where one or more whole shares are issued with 
respect to each outstanding share, the number of outstanding option 
contracts is correspondingly increased and strike prices are 
proportionally reduced.\7\ In all other cases, the number of shares to 
be delivered under the option contract is increased and the strike 
price is reduced proportionately.\8\
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    \7\ For example, in the event of a 2-for-1 split, an XYZ $60 
option calling for the delivery of 100 shares of XYZ stock would be 
subdivided into two XYZ $30 options, each calling for the delivery 
of 100 shares of XYZ stock.
    \8\ For example, in a 3-for-2 split, an XYZ $60 option calling 
for the delivery of 100 shares would be adjusted to call for the 
delivery of 150 shares and the strike price would be reduced to $40.
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    Although these two methods have been used for many years, in 
certain circumstances either method can produce a windfall profit for 
one side and a corresponding loss for the other side due to rounding of 
adjusted strike prices. These profits and losses, while small on a per 
contract basis, can be significant for large positions. Because equity 
option strike prices are currently stated in eighths, OCC's By-Laws 
require adjusted strike prices to be rounded to the nearest eighth. For 
example, if an XYZ $50 option for 100 shares were to be adjusted for a 
3-for-2 split, the deliverable would be increased to 150 shares, and 
the strike price would be adjusted to $33.33 and then be rounded up to 
$33\3/8\. Prior to the adjustment, a call holder would have had to pay 
$5,000 to exercise ($50 x 100 shares). After the adjustment, the caller 
would have to pay $5,006.25 for the equivalent stock position ($33.375 
x 150 shares). Conversely, an exercising put holder would receive 
$5,006.25 instead of $5,000. The $6.25 difference represents a loss for 
call holders and put writers and a windfall for put holders and call 
writers.
    A loss/windfall can also occur when the split results in a 
fractional deliverable (e.g., a 4-for-3 split produces a deliverable of 
133.3333 shares). In those cases, OCC's By-Laws required that the 
deliverable be rounded down to eliminate the fraction, and if 
appropriate, the strike price be further adjusted to the nearest eighth 
to compensate for the diminution in the value of the contract resulting 
from the elimination of the fractional share. However, even if these 
steps are taken, small rounding inequities often remain.
    The windfall profits and correspondent losses resulting from the 
rounding process have historically been accepted as immaterial. 
However, due to recent substantial increases in trading volume and 
position size, they have become a source of concern to exchanges and 
market participants. In addition, OCC has been informed that some 
traders may be exploiting announcements of splits and similar events by 
quickly establishing positions designed to capture rounding windfalls 
at the expense of other market participants.
    The inequity that results from rounding strike prices can be 
eliminated by using a different adjustment method whereby the 
deliverable is adjusted but the strike prices or the values used to 
calculate aggregate exercise prices and premiums are not. As an 
illustration of the new adjustment methodology, in the XYZ $50 option 
3-for-2 split example described above, the resulting adjustment would 
be a deliverable of 150 shares of XYZ stock while the strike price 
would remain at $50. In this case, the presplit multiplier of 100, used 
to extend aggregate strike price and premium amounts, is unchanged. For 
example, a premium of 1.50 would equal $150 ($1.5 x 100) both before 
and after the adjustment. An exercising call holder would continue to 
pay $5,000 ($50 times 100) but would receive 150 shares of XYZ stock 
instead of 100.\9\ This is the method currently used for property 
distributions such as spin-offs and special dividends large enough to 
require adjustments under OCC's By-Laws. \10\
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    \9\ The same adjustment methodology will apply to reverse stock 
splits or combination of shares. For example, in a 3-for-4 reverse 
stock split on a XYZ $50 option calling for the delivery of 100 
shares, the resulting adjustment would be a deliverable of 75 shares 
of XYZ stock while the strike price would remain at $50.
    \10\ The adjustment methodology used for spin-offs, mergers, and 
special cash dividends is to adjust the unit of trading while 
leaving the strike price unchanged.
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    The inequity that results from the need to eliminate fractional 
shares from the deliverable and to compensate by further reducing the 
strike price to the nearest eighth can be eliminated by adjusting the 
deliverable to include cash in lieu of the fractional share. As an 
illustration, consider a 4-for-3 split of the stock underlying an XYZ 
$80 option with a 100 share deliverable. Employing the new adjustment 
method, the deliverable would be adjusted to 133.3333 shares, which 
would be rounded down to 133 shares, and the strike price would remain 
$80. However, instead of compensating for the elimination of the .3333 
share by

[[Page 7703]]

reducing the strike prices, the strike prices would remain unchanged, 
and the cash value of the eliminated fractional share (.3333 x the 
post-split value of a share of XYZ stock as determined by OCC) would be 
the deliverable along with the 133 shares. The adjusted option would 
also continue to use 100 as the multiplier to calculate aggregate 
strike and premium amounts.
    The revised adjustment methodology will not be applied to 2-for-1 
or 4-for-1 stock distributions or splits (since such distributions or 
splits normally result in strike prices that do not require rounding to 
the nearest eighth) unless the split requires rounding of the strike 
price, which may occur where the strike price was previously adjusted 
due to an earlier stock distribution or split. In addition, the revised 
adjustment methodology will not generally be used for stock dividends, 
stock distributions, or stock splits with respect to any series of 
options having exercise prices stated in decimals.\11\ For those 
options, the existing adjustment rules will continue to apply. The 
reason for this is that once the market has converted to decimal 
strikes, the rounding errors created by rounding to the nearest cent 
would be immaterial even given the larger positions taken in today's 
markets and the other factors discussed above. Because conversion to 
decimal strikes might be phased in rather than applied to all series of 
equity options simultaneously, the rule has been drafted to cover both 
methods of expressing exercise prices.
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    \11\ Although there are currently no decimal strikes for equity 
options, OCC wants to avoid the need for further amendments to its 
By-Laws and the options disclosure document in the event that such 
strikes are introduced in the future.
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    The changes in adjustment methodology will not be implemented until 
the exchanges have conducted appropriate educational efforts and 
definitive copies of an appropriate supplement to the options 
disclosure document, Characteristics and Risks of Standardized Options, 
are available for distribution.\12\
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    \12\ OCC will notify the Commission and issue an Important 
Notice when the new adjustment methodology is implemented.
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B. Changes to the Definition of ``Ordinary Dividends and 
Distributions''

    Currently, Article VI, Section 11A(c) of OCC's By-Laws provides 
that as a general rule, outstanding options will not be adjusted to 
compensate for ordinary cash dividends. Interpretation and Policy .01 
under Section 11A of Article VI provides that a cash dividend will 
generally be deemed to be ``ordinary'' if the amount does not exceed 
10% of the value of the underlying stock on the declaration date (``10% 
Rule''). The OCC Securities Committee is authorized to decide on a 
case-by-case basis whether to adjust for dividends exceeding that 
amount. As a result, OCC historically has not adjusted for special cash 
dividends unless the amount of the dividend was greater than 10% of the 
stock price at the close of trading on the declaration day.
    The 10% Rule predated a number of significant developments, 
including the introduction of Long-term Equity AnticiPation Security 
(``LEAPS'') options, the sizeable open interest seen today, the large 
contract volume associated with trading and spreading strategies, and 
the modern option pricing models that take dividends into account. When 
open interests and individual positions were smaller, not adjusting for 
dividends of less than 10% did not have the pronounced impact it does 
today. Additionally, changes to the tax code which now tax dividends 
more favorably have provided an incentive for companies to pay more 
dividends, including special dividends. In light of these 
considerations, OCC believes it is appropriate to now revise the 10% 
Rule.
    Under OCC's revision, a cash dividend or distribution would be 
considered ordinary (regardless of size) if the OCC Securities 
Committee determines that such dividend or distribution was declared 
pursuant to a policy or practice of paying such dividends or 
distributions on a quarterly or other regular basis. In addition, as a 
general rule, a cash dividend or distribution that is less than $12.50 
per contract would not trigger the adjustment provisions of Article VI, 
Section 11A.
1. No Adjustment for Regularly-Scheduled Dividends Needed
    Dividends declared by an issuer pursuant to a policy or practice of 
such issuer are known and can thus be priced into option premiums. By 
definition, however, special dividends cannot be anticipated in advance 
and therefore cannot be integrated into option pricing models.\13\ If 
adjustments are not made in response to special dividends, call holders 
can capture the dividends only by exercising their options. Often in 
these cases, especially with LEAPS options or FLEX options which can 
last for 5 to 10 years, early exercise would sacrifice substantial 
option time value. This economic disadvantage is further magnified if 
the option position is large, as is often the case today. Conversely, 
put holders often receive a windfall benefit from the increase in the 
in-the-money value on the ex date. To the extent that equity options 
can be priced accurately and consistently without dislocations due to 
unforeseen special dividends, these economic disadvantages can be 
avoided. Moreover, because special dividends are one-off events, 
adjusting for them should not cause the proliferation of outstanding 
options series and symbols that would result from adjusting for regular 
dividends as explained below.
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    \13\ OCC has been told that some traders form judgments as to 
the likelihood that certain issuers may declare special cash 
dividends and factor those judgments into their pricing models.
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2. De Minimis Threshold
    Adjusting for dividends can cause a proliferation of outstanding 
option symbols and series.\14\ In the interest of providing some limit 
on option symbol proliferation, the revised adjustment policy will 
include a de minimis threshold of $12.50 per contract. Special 
dividends smaller than this amount will not trigger an adjustment.
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    \14\ Symbols proliferate when adjustments are made because often 
the dividend amount must be added to the deliverable yielding a non-
standard option. The exchanges then introduce standard options with 
the same strikes.
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    OCC believes that a threshold that is a set dollar amount is 
preferable to one that is a percentage of the stock price (like OCC's 
10% Rule) because there are operational problems with applying a 
percentage threshold. Under the 10% Rule, in order to determine whether 
the threshold is met, the per share dividend amount is added to the 
closing price of the underlying security on the dividend declaration 
date. The date the dividend is announced (by press release or by some 
other means) is not normally the ``declaration date'' when the dividend 
is officially declared by an issuer's board of directors. Until the 
actual declaration date, investors and traders may not know whether or 
not an announced dividend will trigger an adjustment based on the 
company's share price. In the interim, it is difficult for traders and 
investors to price their options because they do not know if an 
adjustment will be made.
    The advantage of a fixed dollar threshold is the avoidance of 
uncertainty. The per contract value of the dividend can be immediately 
determined without the need to wait until the declaration date and 
without the need to do a calculation based on the closing price of the 
underlying shares.

[[Page 7704]]

3. Consistency Across Relevant Interpretations
    Interpretations and Policies .01 and .08 under Article VI, Section 
11A apply to cash distributions. Interpretation and Policy .01 (as 
amended by this rule change) will apply in general to all cash 
distributions. Interpretation and Policy .08 currently carves out 
exceptions for fund share cash distributions and does not include a 
threshold minimum. In the interest of clarity and consistency with 
Interpretation and Policy .01, Interpretation .08 is being revised to 
provide for the same $12.50 per contract threshold for fund share cash 
distributions. Clause (ii) of Interpretation and Policy .08 sets forth 
an exception to the 10% Rule and will be deleted when the 10% Rule is 
abolished.

III. Comment Letters

    The Commission received fourteen comment letters in response to the 
proposed rule change.\15\ Eleven of the comment letters opposed the 
rule change. OCC submitted three letters responding to the comment 
letters. Seven of the comment letters opposed elimination of the 10% 
Rule.\16\ Three of the comment letters opposed the adjustment 
methodology for stock dividends, stock distributions, and stock 
splits.\17\
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    \15\ Supra notes 3 and 5. Joseph Haggenmiller's comment letter 
objected to the entire proposed rule change but did not state why. 
Joseph Haggenmiller (March 8, 2006). The comment letters received 
after OCC's amendment did not comment on the amendment.
    \16\ Erik A. Hartog, Operating Manager, Allagash Trading LLC 
(March 21, 2006); Jeffrey Woodring (March 22, 2006); Adam Besch-
Turner (March 23, 2006); Mike Ianni (April 5, 2006); Mike Ianni 
(April 5, 2006); Peter van Dooijeweert, President, Alopex Capital 
Management, LLC (April 26, 2006); and Erik A. Hartog, Operating 
Manager, Allagash Trading LLC (January 8, 2007).
    \17\ Christopher Nagy, Chairman, Options Committee, Securities 
Industry Association (March 24, 2006); Bob Linville and Deborah 
Mittelman, Service Bureau Committee Co-Chairs, Financial Information 
Forum (May 2, 2006); and James Knight, Vice President, Manager, 
Options Trading Strategies, Raymond James Associates, Gary Franklin, 
Manager of Option Trading, Managing Director, Senior Options 
Principal, Morgan Keegan Co., and Dennis Moorman, Manager-Options 
Department, J.J.B. Hilliard, W.L. Lyons, Inc. (December 12, 2006).
---------------------------------------------------------------------------

A. Comments Opposing the 10% Rule

    Those commenters opposing elimination of the 10% Rule did so for 
various reasons. First, they felt that elimination of the 10% Rule for 
existing contracts would be unfair to the contract traders who have 
priced adjustments into their pricing models based on their estimated 
probability that an issuer will pay a special dividend with the 
assumption that OCC would adjust for special dividends based on the 10% 
Rule. OCC responded that it did not believe special dividends could be 
anticipated in advance and therefore could not be integrated into 
pricing models. However, OCC discussed the matter with market 
participants and now understands that some traders do estimate the 
probability of special dividends by selected issuers and do factor 
those estimates into their pricing models. In response, OCC amended the 
proposed rule change so that the 10% Rule would be eliminated and 
replaced with the dollar threshold test beginning with dividends 
announced on and after February 1, 2009. The few outstanding options 
series with expirations beyond that date will be grandfathered and will 
be assigned separate trading symbols.
    Second, some commenters expressed their concerns that elimination 
of the 10% Rule would create uncertainty as to whether OCC would 
classify particular vidends as ordinary or special and that market 
liquidity for the affected options would disappear until OCC announced 
whether a dividend was ordinary or special. OCC responded that a 
dividend will be classified as ordinary if it is declared pursuant to a 
policy or practice of paying such dividends on a quarterly or other 
regular basis. The issue as to whether a particular dividend or 
distribution fits the criteria to be classified as ordinary or special 
would be determined by a panel of the OCC Securities Committee, which 
consists of two representatives of each exchange that lists options on 
the underlying security and one representative of OCC, who votes only 
in the event of a tie vote. OCC contends that most special dividends 
are in such amounts and/or payable on such dates that it will be 
immediately obvious to the market that they are not being declared 
pursuant to a policy or a practice of paying such dividends on a 
quarterly or other regular basis. In addition, issuers normally 
classify a dividend as special or ordinary when the dividend is 
announced. While this will not control OCC's determination of whether a 
dividend is ordinary or special, in the vast majority of cases a 
dividend classified by the issuer as special would not fit OCC's 
definition of ordinary cash dividends or distributions.
    In certain cases the OCC Securities Committee will need to make a 
judgment as to whether to classify a dividend as ordinary or special. 
The uncertainty which may exist in such cases will diminish over time 
as OCC publishes interpretations and policies and a body of precedent 
develops. OCC intends to publish informational material indicating how 
these situations will be handled. Pursuant to the amendment, the 
elimination of the 10% Rule will only be effective for dividends 
announced on and after February 1, 2009, which should allow ample lead 
time for OCC's educational effort to get under way.
    OCC also responded that a balance needs to be struck between 
uncertainty and fairness in that under the 10% Rule, market 
participants incur large losses in the case of a 9.9% special dividend 
but are made whole if the special dividend exceeds 10% of the closing 
stock price on the declaration date.
    The commenters' third major concern in opposing elimination of the 
10% Rule was that the rule change would lead to symbol proliferation in 
that any special dividend greater than $12.50 per contract would 
trigger a contract adjustment and a new symbol. The frequency of such 
adjustments could be very high, causing a sharp spike in symbol 
proliferation. OCC responded by acknowledging that this is true for the 
short term but that the need for additional symbols would end when the 
industry converts to decimal stike prices.\18\ Also, OCC believes that 
the inequities caused by the 10% Rule outweigh any operational burdens 
associated with symbol proliferation.\19\
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    \18\ The current plan is to begin converting fractional strikes 
to decimal strikes in November 2009.
    \19\ Since the beginning of 2006, OCC has been tracking special 
dividends that were too small to trigger an adjustment under the 10% 
Rule but that would be large enough to cause an adjustment under the 
revised rule. Up to September 2006, there were a total of 22 more 
dividends which would have required additional symbols for 
conventional equity options. In some cases, new symbols would also 
have had to be assigned for LEAP and flex contracts. According to 
OCC, the number is not small but is certainly not large relative to 
the hundreds of adjusted and wrap symbols already assigned.
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    The fourth major concern raised by the commenters in opposing the 
10% Rule was that the revised rule could reduce liquidity for adjusted 
options because investors are drawn to round increments in strike 
prices. The 10% Rule has always avoided liquidity loss by only creating 
odd strike prices when the dividend is so extraordinarily 
disproportionate as to require adjustment. OCC responded that despite 
the thousands of contractual adjustments made in over 33 years of 
options trading on U.S. markets, it knows of no case where liquidity 
was wiped out for an adjusted series. Market-makers on U.S. options 
exchanges are numerous, highly competitive, quick to exploit arbitrage 
opportunities, and in many cases obligated by exchange rules to make

[[Page 7705]]

markets in every series of every class in which they quote.\20\
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    \20\ See, e.g., CBOE Rules 8.7 and 8.85.
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B. Comments Opposing the Adjustment Methodology for Stock Dividends, 
Stock Distributions, and Stock Splits

    The commenters who opposed the revised adjustment methodology for 
stock dividends, stock distributions, and stock splits did so by 
suggesting alternative models such as those employed by Eurex and other 
non-U.S. exchanges.\21\ OCC responded that while it has an open mind 
about making further changes to its adjustment methodology, it did not 
believe it would be feasible to adopt any of the alternative models 
proposed by the commenters because they would require extensive and 
onerous systems changes by OCC, exchanges, members, and vendors. One of 
the commenters who opposed the adjustment methodology argued that the 
adjustment methodology is new and will result in significant 
modifications to the systems which support the adjustment methodology 
OCC seeks to replace.\22\ In addition, the commenter argued that if 
OCC's proposed adjustment methodology is implemented and the strike 
price does not change when an adjustment takes place, some other 
indicator in the displays used to trade options must be changed to 
somehow alert the investor that the option represents an adjusted 
contract. OCC responded that it is simply applying to stock dividends, 
stock distributions, and stock splits the same adjustment methodology 
used for over thirty years for spin-offs, mergers, and special cash 
dividends. In addition, OCC argued, price vendors, service bureaus, and 
securities firms currently do and have always identified adjusted 
contracts through the use of adjusted symbols.
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    \21\ Christopher Nagy, Chairman, Options Committee, Securities 
Industry Association (March 24, 2006) and James Knight, Vice 
President, Manager, Options Trading Strategies, Raymond James 
Associates, Gary Franklin, Manager of Option Trading, Managing 
Director, Senior Options Principal, Morgan Keegan Co., and Dennis 
Moorman, Manager-Options Department, J.J.B. Hilliard, W.L. Lyons, 
Inc. (December 12, 2006).
    \22\ Bob Linville and Deborah Mittelman, Service Bureau 
Committee Co-Chairs, Financial Information Forum (May 2, 2006).
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IV. Amendment

    To address certain concerns expressed in the comment letters and by 
others, OCC amended the proposed rule change. OCC understands that 
certain option traders may have integrated into their pricing models 
the probability of special dividends and their being adjusted based on 
the OCC rules currently in effect and that eliminating the 10% Rule 
with respect to existing contracts may unfairly affect these options 
traders. To ensure that no options series that were opened before 
approval of the proposed rule change are affected by elimination of the 
10% Rule, OCC's elimination of the 10% Rule and implementation of the 
fixed dollar threshold will take effect only for corporate events 
announced on or after February 1, 2009. OCC plans to provide ODD 
disclosure of this rule change before May 29, 2007, (after which date 
the exchanges would normally begin introducing LEAPS expiring in 2010 
making a 2009 implementation impracticable). The delay in 
implementation will ensure that all options series opened before the 
ODD disclosure is made available (other than certain ``flex'' options 
that will be grandfathered under the old rule) will have expired before 
the change is effected.\23\ While delaying the implementation until 
2009 postpones the benefit of making this needed change, it addresses 
the concerns of firms that find the operational hurdles and fairness 
issues associated with an earlier implementation onerous.
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    \23\ OCC intends to take a ``snapshot'' of flex series expiring 
after January 31, 2009, that are outstanding at the time when ODD 
disclosure of the rule change is made. Those series will be assigned 
distinctive trading symbols and ``grandfathered'' under the old 
rule. Trading will continue normally in grandfathered series until 
their expiration, but the exchanges would be free to open otherwise 
identical non-grandfathered series, which would be identified by 
conventional flex trading symbols. If ODD disclosure is not made 
until after the December 2006 expiration, it may also be necessary 
to grandfather two classes of LEAPs with December expirations (SPY 
and S&P 100 i-Shares) because the exchanges would ordinarily 
introduce new series expiring in December 2009 after the December 
2006 expiration.
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V. Discussion

    After carefully considering the proposed rule change as amended and 
all of the written comments received, the Commission finds that the 
proposed rule change is consistent with the requirements of the Act and 
the rules and regulations thereunder and particularly with the 
requirements of Section 17A(b)(3)(F).\24\ Section 19(b) of the Act 
directs the Commission to approve a proposed rule change of a self-
regulatory organization if it finds that such proposed rule change is 
consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to such organization. Section 
17A(b)(3)(F) of the Act requires that the rules of a clearing agency be 
designed, in general, to protect investors and the public interest. The 
Commission believes that OCC's rule change is consistent with this 
Section because (1) it is intended to eliminate inequities that result 
from certain rounding practices currently required by OCC's By-Laws and 
thus should protect investors and (2) it is intended to make more 
predictable when cash distributions by an issuer will result in an 
adjustment to an option contract and thus should make the process for 
adjustments more equitable for all investors.
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    \24\ 15 U.S.C. 78q-1(b)(3)(F).
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    OCC has amended the rule change in response to many of the 
commenters that opposed various portions of the rule change for various 
reasons.
    Some commenters expressed concern that elimination of the 10% Rule 
would create uncertainty as to whether OCC would classify particular 
dividends as ordinary or special and that market liquidity for the 
affected options would disappear until OCC made an announcement whether 
a dividend is ordinary or special. The Commission feels that OCC's 
proposed rule is clear as to the procedure that will be used to 
classify a dividend as ordinary or special. A dividend will be 
classified as ordinary if it is declared pursuant to a policy or 
practice of paying such dividends on a quarterly or other regular 
basis. The Commission finds persuasive OCC's argument that most special 
dividends are in such amounts and/or payable on such dates that it will 
be immediately obvious to the market that they are not being declared 
pursuant to a policy or a practice of paying such dividends on a 
quarterly or other regular basis. In addition, issuers normally 
classify a dividend as special or ordinary when the dividend is 
announced, and in the vast majority of cases a dividend classified by 
the issuer as special would not fit OCC's definition of ordinary cash 
dividends or distributions. Any uncertainty which may exist in cases 
where the OCC Securities Committee will need be to make a judgment as 
to whether a dividend is ordinary or special should diminish over time 
as OCC publishes interpretations and policies and a body of precedent 
develops. In addition, the Commission is not convinced, considering 
that adjusted options have shown no lack of liquidity in the past, that 
the elimination of the 10% Rule will wipe out liquidity for adjusted 
options.
    Some commenters stated that the elimination of the 10% Rule for 
existing contracts would be unfair to those traders that have built 
into their pricing models the possibility that an issuer would declare 
a special dividend and the effect of that dividend under the

[[Page 7706]]

10% Rule. In response, OCC amended the filing so that the 10% Rule will 
be eliminated and the new dollar threshold implemented only for 
dividends announced on and after February 1, 2009, so that the majority 
of existing options contracts will not be affected.
    Some commenters also argued that elimination of the 10% Rule would 
lead to symbol proliferation in that any special dividend greater than 
$12.50 per contract would trigger a contract adjustment and a new 
symbol. The Commission believes that any symbol proliferation should be 
short lived as the industry is planning to convert from fractional 
strikes to decimal strikes in November 2009 and that the benefits of 
the change outweigh any burdens.
    Of particular concern to the Commission is the inequitable economic 
impact of unanticipated special dividends on market participants when 
the 10% Rule is applied. The Commission believes that OCC's rule change 
makes appropriate changes to the way that OCC handles special dividends 
to address this problem.
    Those commenters that disagreed with the adjustment methodology for 
stock dividends, stock distributions, and stock splits suggested 
changes that would require major systems revisions. The Commission 
believes that such systems changes would be a tremendous burden on the 
industry and the costs would not outweigh any benefits.
    Finally, it was argued that major systems changes would need to be 
undertaken and symbols changed to somehow alert investors that an 
option represents an adjusted contract. The Commission is not persuaded 
by this argument because the adjustment methodology OCC is going to 
apply to stock dividends, stock distributions, and stock splits is the 
same adjustment methodology it has used for over thirty years for spin-
offs, mergers, and extraordinary cash dividends and identification of 
these adjusted contracts does not appear to have presented a problem.

VI. Conclusion

    On the basis of the foregoing, the Commission finds that the 
proposed rule change is consistent with the requirements of the Act and 
in particular Section 17A of the Act and the rules and regulations 
thereunder.\25\ In approving the proposed rule change, the Commission 
considered the proposal's impact on efficiency, competition and capital 
formation.
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    \25\ 15 U.S.C. 78c(f).
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    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 
that the proposed rule change (File No. SR-FICC-2006-01), as modified 
by Amendment No. 1, be and hereby is approved.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-2792 Filed 2-15-07; 8:45 am]
BILLING CODE 8011-01-P