```

[Federal Register Volume 80, Number 48 (Thursday, March 12, 2015)]
[Notices]
[Pages 13058-13069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05556]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74452; File No. SR-OCC-2015-02]

Self-Regulatory Organizations; The Options Clearing Corporation; 
Order Approving Proposed Rule Change Concerning a Proposed Capital Plan 
for Raising Additional Capital That Would Support The Options Clearing 
Corporation's Function as a Systemically Important Financial Market 
Utility

March 6, 2015.
    On January 14, 2015, The Options Clearing Corporation (``OCC'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change SR-OCC-2015-02 pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder.\2\ The proposed rule change was published for comment in 
the Federal Register on January 30, 2015.\3\ The Commission received 
seventeen comment letters on OCC's proposal from OCC and seven other 
commenters or groups.\4\ This order approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4. OCC also filed proposals in this proposed 
rule change as an advance notice under Section 806(e)(1) of the 
Payment, Clearing, and Settlement Supervision Act of 2010 
(``Payment, Clearing and Settlement Supervision Act''). 12 U.S.C. 
5465(e)(1). On February 26, 2015, the Commission issued a notice of 
no objection to the advance notice filing. See Exchange Act Release 
No. 74387 (February 26, 2015) (SR-OCC-2014-813).
    \3\ Securities Exchange Act Release No. 74136 (January 26, 
2015), 80 FR 5171 (January 30, 2015) (SR-OCC-2015-02). As the 
Commission noted in the notice of filing of the proposed rule 
change, OCC stated that the purpose of this proposal is, in part, to 
facilitate compliance with proposed Commission rules and address 
Principle 15 of the Principles for Financial Market Infrastructures 
(``PFMIs''). The proposed Commission rules are pending. See 
Securities Exchange Act Release No. 71699 (March 12, 2014), 79 FR 
29508 (May 22, 2014) (S7-03-14). Therefore, the Commission has 
evaluated this proposed rule change under the Act and the rules 
currently in force thereunder. See Securities Exchange Act Release 
No. 74136 (January 26, 2015), 80 FR 5171 (January 30, 2015) (SR-OCC-
2015-02).
    \4\ See Letter from Eric Swanson, General Counsel & Secretary, 
BATS Global Markets, Inc., (February 19, 2015) (``BATS Letter I''); 
Letter from Tony McCormick, Chief Executive Officer, BOX Options 
Exchange, (February 19, 2015) (``BOX Letter I''); Letter from Howard 
L. Kramer on behalf of Belvedere Trading, CTC Trading Group, IMC 
Financial Markets, Integral Derivatives, Susquehanna Investment 
Group, and Wolverine Trading, (February 20, 2015) (``MM Letter''); 
Letter from Ellen Greene, Managing Director, Financial Services 
Operations, SIFMA, (February 20, 2015) (``SIFMA Letter''); Letter 
from James E. Brown, General Counsel, OCC, (February 23, 2015) 
(responding to BATS Letter and BOX Letter) (``OCC Letter I''); 
Letter from James E. Brown, General Counsel, OCC, (February 23, 
2015) (responding to MM Letter) (``OCC Letter II''); Letter from 
Barbara J. Comly, Executive Vice President, General Counsel & 
Corporate Secretary, Miami International Securities Exchange, LLC 
(February 24, 2015) (``MIAX Letter I''); Letter from James E. Brown, 
General Counsel, OCC, (February 24, 2015) (responding to SIFMA 
Letter) (``OCC Letter III''); Letter from John A. McCarthy, General 
Counsel, KCG Holdings, Inc., (February 26, 2015) (``KCG Letter I''); 
Letter from Eric Swanson, General Counsel and Secretary, BATS Global 
Markets, Inc., (February 27, 2015) (``BATS Letter II''); Letter from 
John A. McCarthy, General Counsel, KCG Holdings, Inc., (February 27, 
2015) (``KCG Letter II''); Letter from Richard J. McDonald, Chief 
Regulatory Counsel, Susquehanna International Group, LLP, (February 
27, 2015), (``SIG Letter I''); Letter from Barbara J. Comly, 
Executive Vice President, General Counsel & Corporate Secretary, 
Miami International Securities Exchange, LLC (March 1, 2015) (``MIAX 
Letter II''); Letter from James E. Brown, General Counsel, OCC, 
(March 2, 2015) (``OCC Letter IV''); Letter from Eric Swanson, 
General Counsel and Secretary, BATS Global Markets, Inc. (March 3, 
2015)(``BATS Letter III''); and Letter from Tony McCormick, Chief 
Executive Officer, BOX Options Exchange, (March 3, 2015) (``BOX 
Letter II''); Letter from Brian Sopinsky, General Counsel, 
Susquehanna International Group, LLP, (March 4, 2015) (``SIG Letter 
II''). Since the proposal was filed as both an advance notice and 
proposed rule change, the Commission considered all comments 
received on the proposal, regardless of whether the comments were 
submitted to the proposed rule change or advance notice. See 
comments on the advance notice (File No. SR-OCC-2014-813), http://www.sec.gov/comments/sr-occ-2014-813/occ2014813.shtml and comments 
on the proposed rule change (File No. SR-OCC-2015-02), http://www.sec.gov/comments/sr-occ-2015-02/occ201502.shtml. In its 
evaluation of the proposed rule change, the Commission assessed 
whether the proposal was consistent with the requirements of the Act 
and the applicable rules and regulations thereunder.
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I. Description

    OCC is amending its By-Laws and other governing documents, and 
adopting certain policies, for the purpose of implementing a plan for 
raising additional capital (``Capital Plan'') under which the options 
exchanges that own equity in OCC (``Stockholder Exchanges'' or 
``Stockholders'') will make an additional capital contribution and 
commit to replenishment capital (``Replenishment Capital'') in 
circumstances discussed below, and will receive, among other things, 
the right to receive dividends from OCC. In addition to the new capital 
contribution and Replenishment Capital commitment, the main features of 
the Capital Plan include: (i) A policy establishing OCC's clearing fees 
at a level that would be sufficient to cover OCC's estimated operating 
expenses

[[Page 13059]]

plus a ``Business Risk Buffer'' as described below (``Fee Policy''), 
(ii) a policy establishing the amount of the annual refund to clearing 
members of OCC's fees (``Refund Policy''), and (iii) a policy for 
calculating the amount of dividends to be paid to the Stockholder 
Exchanges (``Dividend Policy''). OCC states that it intends to 
implement the Capital Plan on or after February 27, 2015, subject to 
all necessary regulatory approvals.
    OCC states that it is implementing this Capital Plan, in part, to 
increase significantly its capital in connection with being designated 
systemically important by the Financial Stability Oversight Council 
pursuant to the Payment, Clearing and Settlement Supervision Act. The 
Capital Plan calls for an infusion of substantial additional equity 
capital by the Stockholder Exchanges to be made on or about February 
27, 2015, subject to regulatory approval, that when added to retained 
earnings accumulated by OCC in 2014 will significantly increase OCC's 
capital levels as compared to historical levels. Additionally, the 
Capital Plan includes the Replenishment Capital commitment, which will 
provide OCC with access to additional equity contributions by the 
Stockholder Exchanges should OCC's equity fall close to or below the 
amount that OCC determines to be appropriate to support its business 
and manage business risk.

A. Background

    OCC is a clearing agency registered with the Commission and is also 
a derivatives clearing organization (``DCO'') regulated in its capacity 
as such by the Commodity Futures Trading Commission. OCC is a Delaware 
business corporation and is owned equally by the Stockholder 
Exchanges--five national securities exchanges for which OCC provides 
clearing services.\5\ In addition, OCC provides clearing services for 
seven other national securities exchanges that trade options (``Non-
Stockholder Exchanges''). In its capacity as a DCO, OCC provides 
clearing services to four futures exchanges.
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    \5\ The Stockholder Exchanges are: Chicago Board Options 
Exchange, Incorporated; International Securities Exchange, LLC; 
NASDAQ OMX PHLX LLC; NYSE MKT LLC; and NYSE Arca, Inc.
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    According to OCC, it has devoted substantial efforts during the 
past year to: (1) Develop a 5-year forward looking model of expenses; 
(2) quantify maximum recovery and wind-down costs under OCC's recovery 
and wind-down plan; (3) assess and quantify OCC's operational and 
business risks; (4) model projected capital accumulation taking into 
account varying assumptions concerning business conditions, fee levels, 
buffer margin levels and refunds; and (5) develop an effective 
mechanism that provides OCC access to replenishment capital in the 
event of losses. Incorporating the results of those efforts, the 
amendments to its By-Laws and other governing documents are intended to 
allow OCC to implement the Capital Plan and thereby provide OCC with 
the means to increase its shareholders' equity.

B. OCC's Projected Capital Requirement

    As described in detail below, OCC will annually determine a target 
capital requirement consisting of (i) a baseline capital requirement 
equal to the greatest of (x) six months operating expenses for the 
following year, (y) the maximum cost of the recovery scenario from 
OCC's recovery and wind-down plan, and (z) the cost to OCC of winding 
down operations as set forth in the recovery and wind-down plan 
(``Baseline Capital Requirement''), plus (ii) a target capital buffer 
linked to plausible loss scenarios from operational risk, business risk 
and pension risk (``Target Capital Buffer'') (collectively, ``Target 
Capital Requirement''). OCC determined that for 2015, the appropriate 
Target Capital Requirement is $247 million, reflecting a Baseline 
Capital Requirement of $117 million, which is equal to six months of 
projected operating expenses, plus a Target Capital Buffer of $130 
million. This Target Capital Buffer is designed to provide a 
significant capital cushion to offset potential business losses.
    According to OCC, it had total shareholders' equity of 
approximately $25 million as of December 31, 2013.\6\ OCC is adding 
additional capital of $222 million to meet its 2015 Target Capital 
Requirement. OCC determined that a viable plan for Replenishment 
Capital should provide for a replenishment capital amount that would 
give OCC access to additional capital as needed up to a maximum of the 
Baseline Capital Requirement (``Replenishment Capital Amount'').\7\ 
Therefore, OCC's Capital Plan will include the following in order to 
provide OCC in 2015 with ready access to approximately $364 million in 
equity capital:
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    \6\ See OCC 2013 Annual Report, Financial Statements, Statements 
of Financial Condition, available on OCC's Web site, http://optionsclearing.com/components/docs/about/annual-reports/occ_2013_annual_report.pdf.
    \7\ The obligation to provide Replenishment Capital will be 
capped at $200 million, which OCC projects will sufficiently account 
for increases in its capital requirements for the foreseeable 
future.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Baseline Capital Requirement............................    $117,000,000
Target Capital Buffer...................................     130,000,000
                                                         ---------------
Target Capital Requirement..............................     247,000,000
Replenishment Capital Amount............................     117,000,000
                                                         ---------------
Total OCC Capital Resources.............................     364,000,000
------------------------------------------------------------------------

C. Procedures Followed in Order To Determine Capital Requirement

    According to OCC, various measures were used in determining the 
appropriate level of capital. An outside consultant conducted a 
``bottom-up'' analysis of OCC's risks and quantified the appropriate 
amount of capital to be held against each risk. The analysis was 
comprehensive across risk types, including credit, market, pension, 
operational, and business risk. Based on internal operational risk 
scenarios and loss modeling at the 99% confidence level, OCC's 
operational risk was quantified at $226 million and pension risk at $21 
million, resulting in the total Target Capital Requirement of $247 
million. Business risk was addressed by taking into consideration OCC's 
ability to fully offset potential revenue volatility and manage 
business risk to zero by adjusting the levels at which fees and refunds 
are set and by adopting a Business Risk Buffer of 25% when setting 
fees. Other risks, such as counterparty risk and on-balance sheet 
credit and market risk, were considered to be immaterial for purposes 
of requiring additional capital based on means available to OCC to 
address those risks that did not require use of OCC's capital. As 
discussed in more detail below in the context of OCC's Fee Policy, the 
Business Risk Buffer of 25% can be achieved by setting OCC's fees at a 
level intended to achieve target annual revenue that will result in a 
25% buffer for the year after paying all operating expenses.
    Additionally, OCC determined that its maximum recovery costs will 
be $100 million and projected wind-down costs would be $73 million. OCC 
projected its expenses for 2015 will be $234 million, so that six 
months projected expenses are $234 million/2 = $117 million. The 
greater of recovery or wind-down costs, and six months of operating 
expenses is $117 million, and thus serves as OCC's Baseline Capital 
Requirement. According to OCC, it then computed the appropriate amount 
of a Target Capital Buffer from operational risk, business risk, and 
pension risk, resulting in a

[[Page 13060]]

determination that the current Target Capital Buffer should be $130 
million. Thus, the Target Capital Requirement will be $117 million + 
$130 million = $247 million.

D. Overview of, and Basis for, OCC's Proposal To Acquire Additional 
Equity Capital

    According to OCC, in order to meet its Target Capital Requirement, 
and after consideration of alternatives, OCC's Board of Directors 
approved a proposal \8\ from OCC's Stockholder Exchanges pursuant to 
which OCC would meet its Target Capital Requirement of $247 million in 
early 2015 as follows:
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    \8\ On December 18, 2014, OCC's Board of Directors voted to 
approve OCC's Capital Plan. At the time of the vote, OCC's Board of 
Directors was comprised of 18 directors--five Stockholder Exchanges, 
three public directors, one management director, and nine clearing 
member directors.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Shareholders' Equity as of 1/1/2014.....................    $ 25,000,000
Shareholders Equity Accumulated Through Retained              72,000,000
 Earnings \9\...........................................
Additional Contribution from Stockholder Exchanges......     150,000,000
                                                         ---------------
Target Capital Requirement..............................     247,000,000
Replenishment Capital Amount............................     117,000,000
                                                         ---------------
Total OCC Capital Resources.............................     364,000,000
------------------------------------------------------------------------

     
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    \9\ According to OCC, ``the $72 million is after giving effect 
to the approximately $40 million refund'' expected to be made in 
early 2015 for activities in 2014. Securities Exchange Act Release 
No. 74136 (January 26, 2015), 80 FR 5171 (January 30, 2015) (SR-OCC-
2015-02).
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    The additional contribution by the Stockholder Exchanges will be 
made in respect of their Class B Common Stock on a pro rata basis.\10\ 
The Stockholder Exchanges also have committed to provide additional 
equity capital up to the Replenishment Capital Amount, which is 
currently $117 million, in the event Replenishment Capital is needed. 
While the Replenishment Capital Amount will increase as the Baseline 
Capital Requirement increases, it will be capped at a total of $200 
million that could be outstanding at any point in time. OCC estimates 
that the Baseline Capital Requirement will not exceed $200 million 
before 2022. If the limit is approached, OCC will revise the Capital 
Plan as needed to address future needs. In consideration for their 
capital contributions and replenishment commitments, the Stockholder 
Exchanges will receive dividends as described in the Dividend Policy 
discussed below for so long as they remain Stockholders and maintain 
their contributed capital and commitment to replenish capital up to the 
Replenishment Capital Amount, subject to the previously mentioned $200 
million cap.
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    \10\ The pro rata basis is based on the Stockholder Exchanges' 
interest in OCC. Currently, each Stockholder Exchange owns 20% of 
OCC.
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E. Fee, Refund, and Dividend Policies

    Upon reaching the Target Capital Requirement, the Capital Plan and 
the proposed Fee Policy will require OCC to set its fees at a level 
that utilizes a Business Risk Buffer of 25%. The purpose of this 
Business Risk Buffer is to ensure that OCC accumulates sufficient 
capital to cover unexpected fluctuations in operating expenses, 
business capital needs, and regulatory capital requirements. 
Furthermore, the Capital Plan requires OCC to maintain Fee, Refund, and 
Dividend Policies, described in more detail below, which are designed 
to ensure that OCC's shareholders' equity remains well above the 
Baseline Capital Requirement.
    The required Business Risk Buffer target net income margin of 25% 
is below OCC's 10-year historical pre-refund average buffer of 31%. The 
target will remain 25% so long as OCC's shareholders' equity remains 
above the Target Capital Requirement amount. According to OCC, the 
projected reduction in net income margin from OCC's actual historical 
10-year average of 31% to the new target of 25% reflects OCC's 
commitment to continue to operate as an industry utility and ensuring 
that market participants benefit from OCC's operational efficiencies in 
the future. This reduction will permit OCC to charge lower fees to 
market participants rather than maximize refunds to clearing members 
and dividend distributions to Stockholder Exchanges. According to OCC, 
it will review its fee schedule on a quarterly basis to manage revenue 
as closely to this target as possible. For example, if the Business 
Risk Buffer is materially above 25% after the first quarter of a 
particular year, OCC may decrease fees for the remainder of the year, 
and conversely if the Business Risk Buffer realized in practice is 
materially below 25% after the first quarter, OCC may increase fees for 
the remainder of the year.\11\
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    \11\ If OCC's fee schedule needs to be changed in order to 
achieve the 25% Business Risk Buffer, OCC will file a proposed rule 
change seeking approval of the revised fee schedule.
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    The Capital Plan will allow OCC to refund approximately $40 million 
from 2014 fees to clearing members in 2015 and to reduce fees in an 
amount to be determined by OCC's Board of Directors, effective in the 
second quarter of 2015. OCC will endeavor to provide clearing members 
with no less than 60-day notice in advance of when the changes to fee 
levels will become effective, particularly those that result in 
increases to fee levels. No dividends will be declared until December 
2015, and no dividends will be paid until 2016.
    Changes to the Fee, Refund, or Dividend Policies will require the 
affirmative vote of two-thirds of the directors then in office and 
approval of the shareholders of all of OCC's outstanding Class B Common 
Stock.\12\ The formulas for determining the amount of refunds and 
dividends under the Refund and Dividend Policies, respectively, which 
are described in more detail below, assume that refunds are tax-
deductible but dividends are not. The Refund and Dividend Policies each 
will provide that in the event that refunds payable under the Refund 
Policy are not tax deductible, the policies will be amended to restore 
the relative economic benefits between the recipients of the refunds 
and the Stockholder Exchanges.
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    \12\ Each Stockholder Exchange owns the same amount of Class A 
common stock and Class B common stock. Class B common stock is 
entitled to receive dividends, whereas Class A common stock is not. 
Class A common stock is entitled to vote for Member Directors, 
whereas Class B common stock is entitled to vote for the Management 
Director and Public Directors. Upon the liquidation of OCC, the 
assets available for distribution to shareholders will be 
distributed as follows: Holders of Class A common stock and Class B 
common stock will be first paid the par value of their shares. Next, 
each holder of Class B common stock will receive a distribution of 
$1 million. Next, an amount equal to OCC's shareholders' equity at 
December 31, 1998 of $22,902,094, minus the distributions described 
above, will be distributed to those holders who acquired their Class 
B common stock before December 31, 1998. Finally, any remaining 
shareholders' equity will be distributed equally to all holders of 
Class B common stock. For more information, see OCC's 2014 financial 
statements available at http://www.theocc.com/components/docs/about/annual-reports/occ_2014_annual_report.pdf.
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1. Fee Policy
    Under the Fee Policy, in setting fees each year, OCC will calculate 
an annual revenue target based on a forward twelve months expense 
forecast divided by the difference between one and the Business Risk 
Buffer of 25% (i.e., OCC will divide the expense forecast by .75). 
Establishing a Business Risk Buffer at 25% will allow OCC to set fees, 
and to manage the risk that such fees may generate less revenue than 
expected due to lower-than-expected trading volume or other factors, or 
that expenses may be higher than projected. The Fee Policy also will 
include provisions from

[[Page 13061]]

existing Article IX, Section 9 of the By-Laws, which provide that the 
fee schedule also may include additional amounts necessary to (i) 
maintain such reserves as are deemed reasonably necessary by OCC's 
Board of Directors to provide facilities for the conduct of OCC's 
business and to conduct development and capital planning activities in 
connection with OCC's services to the options exchanges, clearing 
members, and the general public, and (ii) accumulate such additional 
surplus as the Board may deem advisable to permit OCC to meet its 
obligations to clearing members and the general public.
    However, OCC states that these provisions will be invoked only in 
extraordinary circumstances and to the extent that the Board of 
Directors has determined that the required amount of such additional 
reserves or additional surplus will exceed the full amount that is 
expected to be accumulated through the Business Risk Buffer (prior to 
payment of refunds or dividends) so OCC's fees ordinarily will be based 
on its projected expenses and the Business Risk Buffer of 25%.
    Under the Capital Plan, OCC will use the following formula to 
calculate its annual revenue target as follows: Annual Revenue Target = 
Forward 12 Months Expense Forecast/(1-.25). Because OCC's clearing fee 
schedules typically reflect different rates for different categories of 
transactions, fee projections will include projections as to relative 
volume in each such category. The clearing fee schedule therefore will 
be set to achieve a blended or average rate per contract that is 
projected to be sufficient, when multiplied by total projected contract 
volume, to achieve the Annual Revenue Target. Under extraordinary 
circumstances, OCC will add any amount determined to be necessary for 
additional reserves or surplus and divide the resulting number by the 
projected contract volume to determine the applicable average fee per 
cleared contract needed to achieve the additional amounts required. OCC 
will notify clearing members of the fees OCC determines it will apply 
for any particular period by describing the change in an information 
memorandum distributed to all clearing members and will file any change 
to its fee schedule with the Commission pursuant to its obligations 
under Section 19(b)(1) of the Act.\13\
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    \13\ The Commission notes that future changes to OCC's fee 
schedule as well as future changes to the Fee Policy, Refund Policy, 
and Dividend Policy, are subject to Section 19(b)(1) of the Act and 
Section 806(e) of the Payment, Clearing, and Settlement Supervision 
Act, as applicable, both of which require OCC to submit appropriate 
regulatory filings with the Commission provide an opportunity for 
public comment, and require the Commission to review and ultimately 
disapprove, object to, or require modification or rescission, as 
applicable, if the changes do not meet regulatory requirements. See 
15 U.S.C. 78s(b)(1); 12 U.S.C. 805(e); 17 CFR 240.19b-4(n).
---------------------------------------------------------------------------

2. Refund Policy
    Under the Refund Policy, except at a time when Replenishment 
Capital is outstanding as described below, OCC will declare a refund to 
clearing members in December of each year, beginning in 2015, in an 
amount equal to 50% of the excess, if any, of (i) the pre-tax income 
for the year in which the refund is declared over (ii) the sum of (x) 
the amount of pre-tax income after the refund necessary to produce 
after-tax income for such year sufficient to maintain shareholders' 
equity at the Target Capital Requirement for the following year plus 
(y) the amount of pre-tax income after the refund necessary to fund any 
additional reserves or additional surplus not already included in the 
Target Capital Requirement. Such refund will be paid in the year 
following the declaration after the issuance of OCC's audited financial 
statements, provided that (i) the payment does not result in total 
shareholders' equity falling below the Target Capital Requirement, and 
(ii) such payment is otherwise permitted by applicable Delaware law and 
federal laws and regulations. OCC will not be able to pay a refund on a 
particular date unless dividends are paid on the same date.
    If Replenishment Capital has been contributed and remains 
outstanding, OCC will not pay refunds until such time as the Target 
Capital Requirement is restored through the accumulation of retained 
earnings. Refunds in accordance with the Refund Policy will resume once 
the Target Capital Requirement is restored and all Replenishment 
Capital is repaid in full, provided that the restoration of the Target 
Capital Requirement and the repayment of Replenishment Capital occurred 
within 24 months of the issuance date of the Replenishment Capital. If 
any Replenishment Capital has not been repaid in full or shareholders' 
equity has not been restored to the Target Capital Requirement within 
24 months, OCC will no longer pay refunds to clearing members, even if 
the Target Capital Requirement is restored and all Replenishment 
Capital is repaid at a later date.
3. Dividend Policy
    The Dividend Policy provides that, except at a time when 
Replenishment Capital is outstanding as described below, OCC will 
declare a dividend on its Class B Common Stock in December of each year 
in an aggregate amount equal to the excess, if any, of (i) after-tax 
income for the year, after application of the Refund Policy (unless the 
Refund Policy has been eliminated, in which case the refunds shall be 
deemed to be $0) over (ii) the sum of (A) the amount required to be 
retained in order to maintain total shareholders' equity at the Target 
Capital Requirement for the following year, plus (B) the amount of any 
additional reserves or additional surplus not already included in the 
Target Capital Requirement. Such dividend will be paid in the year 
following the declaration after the issuance of OCC's audited financial 
statements, provided that (i) the payment does not result in total 
shareholders' equity falling below the Target Capital Requirement, and 
(ii) such payment is otherwise permitted by applicable Delaware law and 
federal laws and regulations. If Replenishment Capital has been 
contributed and remains outstanding, OCC will not pay dividends until 
such time as the Target Capital Requirement is restored.

F. Replenishment Capital Plan

    OCC also is establishing a Replenishment Capital Plan whereby OCC's 
Stockholder Exchanges are obligated to provide on a pro rata basis \14\ 
a committed amount of Replenishment Capital should OCC's total 
shareholders' equity fall below the ``hard trigger,'' described below. 
The aggregate committed amount for all five Stockholder Exchanges in 
the form of Replenishment Capital that could be accessed at any time 
will be capped at the excess of (i) the lesser of (A) the Baseline 
Capital Requirement, which is currently $117 million, at the time of 
the relevant funding or (B) $200 million, over (ii) amounts of 
outstanding Replenishment Capital (``Cap Formula''). The $200 million 
figure in the Cap Formula accounts for projected growth in the Baseline 
Capital Requirement for the foreseeable future.
---------------------------------------------------------------------------

    \14\ The pro rata basis is based on the Stockholder Exchanges' 
interest in OCC. Currently, each Stockholder Exchange owns 20% of 
OCC.
---------------------------------------------------------------------------

    The commitment to provide Replenishment Capital will not be limited 
by time, but rather only by the Cap Formula. Replenishment Capital will 
be called in whole or in part after the occurrence of a ``hard 
trigger'' event described below. If the Baseline Capital

[[Page 13062]]

Requirement approaches or exceeds $200 million, OCC's Board of 
Directors may consider, as part of its regular, periodic review of the 
Replenishment Capital Plan, alternative arrangements to obtain 
replenishment capital in excess of the $200 million committed under the 
Replenishment Capital Plan. In addition, the Refund Policy and the 
Dividend Policy provide that, in the absence of obtaining any such 
alternative arrangements, the amount of the difference will be 
subtracted from amounts that would otherwise be available for the 
payment of refunds and dividends. Replenishment Capital contributed to 
OCC under the Replenishment Capital Plan will take the form of a new 
class of common stock (``Class C Common Stock'') of OCC to be issued to 
the Stockholder Exchanges solely in exchange for Replenishment Capital 
contributions.
    The Replenishment Capital Plan is a component of OCC's overall 
Capital Plan. In implementing the Replenishment Capital Plan, OCC's 
management will monitor OCC's levels of shareholders' equity to 
identify certain triggers, or reduced capital levels, that might 
require action. OCC has identified two key triggers--a ``soft trigger'' 
and a ``hard trigger''--and proposes that OCC will take certain steps 
upon the occurrence of either.
    The ``soft trigger'' for re-evaluating OCC's capital will occur if 
OCC's shareholders' equity falls below the sum of (i) the Baseline 
Capital Requirement and (ii) 75% of the Target Capital Buffer. The soft 
trigger will be a warning sign that OCC's capital has fallen to a level 
that requires attention and responsive action to prevent it from 
falling to unacceptable levels. Upon a breach of the soft trigger, 
OCC's senior management and OCC's Board of Directors will review 
alternatives to increasing capital, and take appropriate action as 
necessary, including increasing fees or decreasing expenses, to restore 
shareholders' equity to the Target Capital Requirement.
    The ``hard trigger'' for making a mandatory Replenishment Capital 
call will occur if shareholders' equity falls below 125% of the 
Baseline Capital Requirement (``Hard Trigger Threshold''). OCC 
considers that a breach of the Hard Trigger Threshold is a sign that 
significant corrective action, with a more immediate impact than 
increasing fees or decreasing expenses, should be taken to increase 
OCC's capital, either as part of a recovery plan or a wind down plan 
for OCC's business. Based on current numbers, OCC's shareholders' 
equity will have to fall more than $100 million below the fully funded 
capital amount described above in order to breach the Hard Trigger 
Threshold. As a result, OCC views the breach of the Hard Trigger 
Threshold as unlikely and occurring only as a result of a significant, 
unexpected event. In the event of such breach, OCC's Board of Directors 
must determine whether to attempt a recovery, a wind-down of OCC's 
operations, or a sale or similar transaction, subject in each case to 
any necessary Stockholder consent. If the Board of Directors decides to 
wind-down OCC's operations, OCC will access the Replenishment Capital 
in an amount sufficient to fund the wind-down, as determined by the 
Board of Directors, and subject to the Cap Formula. If the Board of 
Directors decides to attempt a recovery of OCC's capital and business, 
OCC will access the Replenishment Capital in an amount sufficient to 
return shareholders' equity to an amount equal to $20 million above the 
Hard Trigger Threshold subject to the Cap Formula described above.
    While Replenishment Capital is outstanding, no refunds or dividends 
will be paid and, if any Replenishment Capital remains outstanding for 
more than 24 months or the Target Capital Requirement is not restored 
during that period, changes to how OCC calculates refunds and dividends 
may be necessary (as described in more detail above in OCC's Refund 
Policy and Dividend Policy). In addition, while Replenishment Capital 
is outstanding, OCC first will utilize the entire amount of available 
funds to repurchase, on a pro rata basis from each Stockholder 
Exchange, to the extent permitted by applicable Delaware and federal 
law and regulations, outstanding shares of Class C Common Stock as soon 
as practicable after completion of the financial statements following 
the end of each calendar quarter at a price equal to the original 
amount paid for such shares, plus an additional ``gross up'' amount to 
compensate the Stockholder Exchanges for taxes on dividend income (if 
any) that they may have to recognize as a result of such 
repurchase.\15\ For this purpose, ``Available Funds'' will equal, as of 
the end of any calendar quarter, the excess, if any, of (x) 
shareholders' equity over (y) the Minimum Replenishment Level. The 
``Minimum Replenishment Level'' will mean $20 million above the Hard 
Trigger Threshold, so that OCC's shareholders' equity will remain at or 
above the Minimum Replenishment Level after giving effect to the 
repurchase. Furthermore, under the Dividend and Refund Policies, 
refunds and dividends will be suspended until such time as the Target 
Capital Requirement is restored.
---------------------------------------------------------------------------

    \15\ According to OCC, based on current federal tax rates, if 
the full amount of the payment is classified as a dividend and the 
recipient is entitled to a dividends received deduction, this gross 
up is estimated to be approximately 12% of the payment.
---------------------------------------------------------------------------

G. Amendments to Governing Documents

    In order to implement the Capital Plan, OCC is amending its By-Laws 
and Restated Certificate of Incorporation and amending and restating 
its Stockholders Agreement.
1. Amendments to By-Laws
    OCC is amending its By-Laws in order to implement the Capital Plan. 
Specifically, OCC is amending the definition of Equity Exchange in 
Article I, Section 1 to take into account the potential ownership of 
Class C Common Stock by the Stockholder Exchanges.
    Article II, Section 3 is being amended to change the definition of 
quorum such that a majority of outstanding common stock entitled to 
vote at a meeting of Stockholders either in person or by proxy will 
constitute a quorum for any such meeting of the Stockholders. In 
addition, OCC is amending Article II, Section 5 to allow for the 
potential issuance of Class C Common Stock, which will not have voting 
rights except as required by applicable law.
    Article VIIA, Section 2, is being amended to (i) provide for the 
potential issuance of Class C Common Stock in consideration for 
Replenishment Capital provided by Stockholder Exchanges, (ii) permit, 
consistent with the amendments to the Stockholders Agreement, the 
transfer of shares of common stock to another Stockholder, and (iii) 
reflect the right of other Stockholders, consistent with the amendments 
to the Stockholders Agreement, to purchase the shares of common stock 
of another Stockholder. Article VIIA, Section 3, is amended to conform 
to the changes to Article VIIA, Section 2.
    OCC is amending Article VIII, Section 5(d), to require that a Board 
decision to utilize OCC's retained earnings to compensate for a loss or 
deficiency to the Clearing Fund will require unanimous consent from the 
holders of Class A Common Stock and Class B Common Stock.\16\ This 
amendment is intended to protect Stockholder Exchanges from an action 
taken without their consent that could increase their likelihood of 
being required to provide Replenishment Capital. Similarly, Article XI, 
Section 1 is amended to account for the possible issuance of the

[[Page 13063]]

non-voting Class C Common Stock consistent with the Restated 
Certificate of Incorporation as discussed below, and to require 
unanimous Stockholder approval for any future amendments to the new 
provision of Article VIII, Section 5(d) described above.
---------------------------------------------------------------------------

    \16\ See supra note 12.
---------------------------------------------------------------------------

    Article IX, Section 9, is being amended in three ways. First, the 
concept of the Business Risk Buffer will be incorporated into Article 
IX, Section 9(a). Second, Article IX, Section 9, is amended to provide 
that OCC only will add amounts for reserves and surpluses in addition 
to the Business Risk Buffer in extraordinary circumstances and only to 
the extent that the Board of Directors has determined that the required 
amount of additional reserves and surplus is expected to exceed the 
full amount that is anticipated to be accumulated through the Business 
Risk Buffer prior to payment of refunds and dividends. Third, Article 
IX, Section 9, is being amended to expressly reference the potential 
payment of dividends in accordance with the Dividend Policy.
2. Amendments to Restated Certificate of Incorporation
    OCC is amending its Restated Certificate of Incorporation in order 
to implement the Capital Plan. Article IV is amended in multiple 
locations to (i) reduce the number of authorized shares of Class A 
Common Stock and Class B Common Stock to the number of shares currently 
outstanding, and the number of series of Class B Common Stock, to 
reflect the fact that there are only five Stockholder Exchanges, (ii) 
eliminate a provision under which additional shares of Class A Common 
Stock and Class B Common Stock could be authorized in certain 
circumstances without a separate vote of each series of Class B Common 
Stock, (iii) create Class C Common Stock as non-voting stock, (iv) set 
a par value for Class C Common Stock of $1,000 per share, (v) provide 
for distribution upon a liquidation or dissolution of OCC to holders of 
Class A, Class B, and Class C Common Stock, pro rata on a pari passu 
basis, the amount of the par value of their shares, and (vi) remove 
restrictions on the transfer of shares of Class B Common Stock to more 
than one entity in order to address the possible exercise by another 
Stockholder of its right of first refusal under the Amended and 
Restated Stockholders Agreement. Additionally, Article IV is amended to 
make clear that the prohibition on OCC's creating or issuing rights or 
options to purchase OCC stock set forth in Article IV will not restrict 
the ability of OCC to enter into the Replenishment Capital Plan. 
Finally, technical changes will be made to Article VI in connection 
with the creation of Class C Common Stock as non-voting stock.
3. Amendments to Stockholders Agreement
    OCC is amending its Stockholders Agreement to make technical 
changes relating to the additional contributions of capital to be made 
by the Stockholder Exchanges under the Capital Plan and the potential 
issuance of Class C Common Shares. In part, the amendments to the 
Stockholders Agreement will provide Stockholders with a secondary right 
of refusal to be exercised if a Stockholder wished to sell its shares 
and OCC chose not to exercise its existing right of first refusal to 
purchase those shares. OCC considers this change necessary because 
after the additional contributions of capital by the Stockholder 
Exchanges under the Capital Plan, shares of Class B Common Stock will 
be significantly more valuable, making it less likely that OCC will be 
able to exercise its right of first refusal. OCC believes that 
providing the non-selling Stockholder Exchanges with a secondary right 
of first refusal will increase the chances that a selling Stockholder 
Exchange will find a purchaser for its shares from among OCC's existing 
owners. Because OCC's Stockholders Agreement already has been amended 
several other times, for convenience OCC is proposing to amend and 
restate the Stockholders Agreement to incorporate all previous 
amendments and the new amendments into a single comprehensive 
agreement.
    Each of the amendments to the Stockholders Agreement is described 
below, in the order they appear in the agreement. OCC is making a 
technical amendment to Section 1 of the Stockholders Agreement to refer 
to the definitions of Class A Common Stock, Class B Common Stock, and 
Class C Common Stock in the Restated Certificate of Incorporation and 
By-Laws. OCC is amending Section 3 to delete an obsolete reference to a 
plan relating to OCC's original reorganization into a common clearing 
facility for all options exchanges.
    OCC is amending Section 5(a) to add a reference to the procedures 
for Stockholder Exchanges to acquire shares pursuant to their secondary 
rights of first refusal in certain situations that will be set out in 
amended Section 10(e). OCC is amending Section 5(b) providing that the 
Stockholder Exchanges may not sell or transfer less than all of their 
shares without the consent of OCC. OCC seeks to prevent a partial sale 
by a Stockholder Exchange of a portion of its shares of Class A Common 
Stock, Class B Common Stock, or Class C Common Stock to avoid 
difficulties that could arise for OCC if, as a result of a partial 
sale, voting rights, dividend rights, and replenishment capital were 
spread across Stockholder Exchanges on a non pro rata basis. Section 
5(b) will further clarify that if OCC consented to a partial sale, the 
Stockholder Exchanges' rights of first refusal still will apply, and 
that a Stockholder Exchange could sell shares of Class C Common Stock 
to OCC without selling its shares of Class A Common Stock and Class B 
Common Stock.
    OCC is amending Section 6(a) to provide Stockholders, upon the non-
exercise of OCC's right of first refusal, a secondary right of first 
refusal to purchase shares of other Stockholders in certain 
circumstances discussed above, and to establish procedures governing 
the exercise of this right. Section 6(b) is amended to explicitly state 
that OCC can assign its rights under the Stockholders Agreement to 
purchase shares of a Stockholder Exchange in the event of such 
Stockholder Exchange's bankruptcy or insolvency, and to create an 
exception from the right of first refusal for transfers to certain 
affiliates of a Stockholder that meet the exchange eligibility 
requirements set forth in the By-Laws. Section 6(c) is amended to make 
any transfer or encumbrance of shares in violation of the Stockholders 
Agreement, either voluntarily or by operation of law, void. Section 
6(d) is amended to explicitly state that OCC can assign its rights 
under the Stockholders Agreement to repurchase shares of any 
Stockholder that ceases to be qualified to participate in OCC pursuant 
to the By-Laws. The revised Section 6(c) takes the place of current 
Section 6(e), which is deleted. Section 6(e) currently provides that 
such a pledge or transfer will automatically be deemed to create a 
transfer of the shares to OCC.
    OCC is making conforming amendments to Section 6(f), Section 6(g), 
Section 7, and Section 8 to provide for the new Stockholder Exchange 
right of first refusal. OCC is deleting Section 9 to remove the right 
of Stockholders to require OCC to purchase their shares of stock.
    OCC is amending Section 10(a) of the Stockholders Agreement to 
provide that the purchase price paid upon exercise of purchase rights 
by OCC or the Stockholder Exchanges will be equal to the lowest of (i) 
the book value of the shares to be purchased, (ii) the total capital 
contribution of the selling Stockholder and (iii) in the case of 
exercise of a right of first refusal, the

[[Page 13064]]

price originally offered for such shares. OCC is making other technical 
amendments to Sections 10(a), 10(b) and 10(c) of the Stockholders 
Agreement concerning the purchase price formula, procedures, and timing 
for OCC's repurchase rights of shares (or, if applicable, the purchase 
of a Stockholder's shares by another Stockholder) pursuant to the terms 
of the Stockholders Agreement. Section 10(d) is amended such that any 
consideration to be paid by OCC upon the exercise of a right of first 
refusal will be subordinated to all other claims of all other creditors 
of OCC, and to prohibit OCC from declaring or paying any dividends, 
acquiring for value any shares of stock or distributing assets to any 
Stockholder Exchange, except with regard to required purchases or 
redemptions of shares of Class C Common Stock or payments of dividends 
in accordance with the Dividend Policy. OCC is amending current Section 
10(e) by moving its provisions addressing the subordination of payments 
by OCC and non-payment of dividends under certain circumstances into 
Section 10(d) as discussed above. OCC proposes technical amendments to 
current Section 10(g) concerning the process under which OCC would 
acquire shares upon exercise of its right of first refusal and will 
redesignate Section 10(g) as Section 10(e). OCC also is moving 
technical provisions of the current Section 10(f) concerning the 
payment of such shares into Section 10(e). Section 10(f) will then be 
amended to address procedures for Stockholders that exercise their 
right of first refusal.
    Section 11 of the Stockholders Agreement is being amended in order 
to make a Stockholder's right to transfer shares dependent upon the 
non-exercise of OCC's and other Stockholders' right of first refusal to 
the purchase of such Stockholder's shares. Additionally, Section 11 
will be amended to provide that the transfer of a Stockholder's shares 
under that section will not be effective without the transferee's 
assuming the rights and obligations under the Stockholders Agreement, 
certain joinders to the Stockholders Agreement and other agreements 
between OCC and Stockholders.
    Section 14(a) is being amended to make reference to the 
Stockholders Agreement. Section 14(b) will be amended to make a 
technical change relating to the legend on OCC's stock certificates. 
OCC is amending Section 15 to update the mailing addresses of the 
Stockholder Exchanges for written notices and formal communications. 
Section 16(c) is being amended to clarify that a Stockholder Exchange 
will be able to assign its rights under the Stockholders Agreement only 
to a party to whom it will be permitted to transfer its shares.
    In addition, Section 16(c) is being amended to provide that OCC may 
only assign its repurchase rights under Section 6(b) or Section 6(d) of 
the Stockholders Agreement. OCC will be able to assign such rights with 
respect to all or a portion of the shares of stock owned by a 
Stockholder Exchange, and will be required to provide the non-selling 
Stockholder Exchanges with a right of first refusal in connection with 
any such contemplated assignment comparable to the secondary right of 
first refusal applicable with respect to a voluntary sale by a 
Stockholder Exchange and described above. Sections 16(f) and 16(g) is 
being amended to effectuate the amendment and restatement of the 
existing Stockholders Agreement.

II. Summary of Comment Letters

    The Commission received seventeen comment letters in total.\17\ 
Thirteen comment letters were received from seven commenters on OCC's 
proposal.\18\ OCC submitted four letters responding to the issues 
raised by the commenters.\19\ Four of the commenters generally 
supported OCC's need to raise additional capital \20\ though all seven 
commenters opposed how the Capital Plan proposed to raise the 
additional capital.\21\
---------------------------------------------------------------------------

    \17\ See supra note 4.
    \18\ Id.
    \19\ Id.
    \20\ See BOX Letter I; SIFMA Letter; MM Letter; and KCG Letter 
I.
    \21\ See BOX Letter I; SIFMA Letter; BATS Letter I and II; MM 
Letter; MIAX Letter I and II; KCG Letter I and II; and SIG Letters I 
and II.
---------------------------------------------------------------------------

    Four of the commenters set forth arguments that the OCC proposal is 
inconsistent with Section 17A(b)(3)(I) of the Act because it imposes a 
burden on competition that is not necessary or appropriate in 
furtherance of the purpose of the Act.\22\ These commenters stated that 
the OCC proposal places the Stockholder Exchanges at a competitive 
advantage because they would be able to use dividend payments to offset 
operating costs, which would enable them to provide trading and 
execution services at lower prices than their non-Stockholder 
counterparts.\23\ One commenter highlighted that, of the seven non-
Stockholder Exchanges, only MIAX, BATS, and BOX are not affiliates of 
the Stockholder Exchanges.\24\ Further, the same commenter offered 
that, should the subsidized fees be reduced to a level that could not 
be sustained by non-affiliated exchanges, the ability of such non-
affiliated exchanges to provide services to investors and the public 
could be affected.\25\ Additionally, two of the commenters stated that 
the extent of this competitive advantage was unknown, because the 
dollar amounts associated with dividend payments were redacted from the 
publicly-available filing.\26\ One commenter argued that the 
Stockholder Exchanges would be able to subsidize the costs they provide 
to their members through an excessive rate of return (estimated at 16% 
to 18% or more).\27\ This commenter noted that this rate is far above 
market rates, especially considering the commenter's view that the risk 
associated with the investment is low.\28\ The commenter further argued 
that dividends are unlikely to be changed or discontinued because to do 
so would require the unanimous vote of the Stockholder Exchanges.\29\
---------------------------------------------------------------------------

    \22\ See BATS Letter I and II; BOX Letter I; MIAX Letter I and 
II; and MM Letter.
    \23\ Id.
    \24\ See MIAX Letter II.
    \25\ Id.
    \26\ See BATS Letter I and MIAX Letter I.
    \27\ See BATS Letter II.
    \28\ Id.
    \29\ Id.
---------------------------------------------------------------------------

    In response, OCC expressly stated that the proposal would not 
impose any burden on competition.\30\ OCC further stated that the 
dividend payments--if any are declared--should not be viewed simply as 
additional revenue for subsidizing the costs of services provided, but 
as fair compensation to the Stockholder Exchanges for their substantial 
capital contributions, limited ``upside'' and future risks under the 
Capital Plan.\31\ OCC also stated that the Stockholder Exchanges are 
receiving only what the Board of Directors--with the assistance of 
financial advisors and in the exercise of its business judgment--
considered to be fair and in the best interests of OCC, in light of the 
nature of the Stockholder Exchanges' capital investments and the risks 
inherent in their funded and unfunded capital commitments.\32\ 
Additionally, OCC noted that its proposal sufficiently describe the 
considerations that went into setting the specific terms of the Capital 
Plan, including the Fee, Refund, and Dividend Policies.\33\
---------------------------------------------------------------------------

    \30\ See OCC Letter I and IV.
    \31\ Id.
    \32\ Id.
    \33\ See OCC Letter I.
---------------------------------------------------------------------------

    One commenter raised the issue that the OCC proposal is 
inconsistent with Section 17A(b)(3)(D) of the Act because the fees and 
charges under the proposal

[[Page 13065]]

are neither equitable nor reasonable.\34\ The commenter expressed 
concern that: (i) The Dividend Policy creates a conflict of interest 
for the Stockholder Exchanges that could influence future fees; \35\ 
and (ii) OCC should not increase its budget ``without the ability of 
market participants, who ultimately finance OCC through transaction 
fees, to be assured that OCC (as the only clearing agency for U.S. 
listed options) continues to operate with the public marketplace 
foremost in mind.'' \36\
---------------------------------------------------------------------------

    \34\ See MM Letter.
    \35\ ``If the SEC allows the five owners to monetize OCC in this 
fashion, the conflicts of interest will diminish the prospect that 
OCC will perform efficiently to keep transaction fees low and 
operating expense under control. [. . .] Given the potential of the 
dividend to increase with the size of OCC's budget, we are concerned 
where transaction fees may go in the future.'' MM Letter at 13.
    \36\ See MM Letter at 5.
---------------------------------------------------------------------------

    In response, OCC noted that any changes to its fee schedule require 
a rule filing with the Commission, subject to the applicable standards 
of the Act.\37\ Further, OCC noted that change to the Refund, Dividend, 
and Fee Policies are all subject to Commission review and approval, and 
this process affords clearing members the opportunity to object to any 
changes in those policies.\38\ Additionally, the annual budget is 
established by vote of a simple majority, which requires broad support 
of public and/or clearing member directors.\39\
---------------------------------------------------------------------------

    \37\ See OCC Letter II. The Commission notes that future changes 
to OCC's fee schedule as well as future changes to the Fee Policy, 
Refund Policy, and Dividend Policy, are subject to Section 19(b)(1) 
of the Act and Section 806(e) of the Payment, Clearing, and 
Settlement Supervision Act, as applicable, both of which require OCC 
to submit appropriate regulatory filings with the Commission provide 
an opportunity for public comment, and require the Commission to 
review and ultimately disapprove, object to, or require modification 
or rescission, as applicable, if the changes do not meet regulatory 
requirements. See 15 U.S.C. 78s(b)(1); 12 U.S.C. 805(e); 17 CFR 
240.19b-4(n).
    \38\ Id.
    \39\ Id. Five of the current 20 director positions on OCC's 
Board of Directors are held by representatives of the five 
Stockholder Exchanges: Chicago Board Options Exchange, Inc.; 
International Securities Exchange, LLC; NASDAQ OMX PHLX LLC; NYSE 
MKT LLC; and NYSE Arca, Inc.
---------------------------------------------------------------------------

    Four commenters took issue with OCC's request for accelerated 
effectiveness.\40\ One reason these commenters argued this request 
should be denied is because the Commission's proposed Regulation 17Ad-
22(e)(15) is still under consideration and has yet to be adopted.\41\ 
One letter stated that OCC already has the capital on hand to comply 
with the proposed regulation, so there is no urgency as portrayed in 
the OCC proposal and in OCC's responses to prior comments.\42\ Further, 
the Capital Plan, they argue, presents several important policy issues 
that require additional time for debate and further details.\43\ On 
March 2, 2015, OCC responded that this point was moot because an 
approval no longer requires acceleration given that the minimum period 
of 30 days from the date of the filing without acceleration has 
passed.\44\
---------------------------------------------------------------------------

    \40\ See BATS Letter I; MIAX Letter I and II; KCG Letter I; and 
SIG Letter I.
    \41\ See BATS Letter I; MIAX Letter I and II; KCG Letter I; and 
SIG Letter I. As the Commission noted in the notice of filing of the 
proposed rule change, OCC stated that the purpose of this proposal 
is, in part, to facilitate compliance with proposed Commission rules 
and address Principle 15 of the PFMIs. The proposed Commission rules 
are pending. See Securities Exchange Act Release No. 71699 (March 
12, 2014), 79 FR 29508 (May 22, 2014) (S7-03-14). Therefore, the 
Commission has evaluated this proposed rule change under the Act and 
the rules currently in force thereunder. See Securities Exchange Act 
Release No. 74136 (January 26, 2015), 80 FR 5171 (January 30, 2015) 
(SR-OCC-2015-02). See also supra note 3.
    \42\ See SIG Letter I. See also supra note 3.
    \43\ See MIAX Letter I and MM Letter. See also supra note 3.
    \44\ See OCC Letter IV. Pursuant to Section 19(b)(2)(C)(iii), 
the Commission may not approve a proposed rule change earlier than 
30 days after the date of publication unless the Commission finds 
good cause for doing so and publishes the reason for the finding 
(referred to as ``accelerated'' approval). The Commission notes that 
the statutory time period for approval prior to the thirtieth day 
has passed. See 15 U.S.C. 78s(b)(2)(C)(iii).
---------------------------------------------------------------------------

    Six commenters expressed concern that the Capital Plan converts OCC 
from a so-called traditional industry utility model to a for-profit 
model that maximizes returns for the Stockholder Exchanges.\45\ Under 
this model, OCC set transaction fees to cover its operational costs 
plus some reasonable excess for unforeseen expenses or drops in 
revenue, and refunded the excess back to its members through 
rebates.\46\ Under the proposal, refunds to members and their customers 
will be limited to 50% of the excess fees, with the remainder of after-
tax income being designated as dividend payments for the Stockholder 
Exchanges.\47\ In calculating the excess fees available for a refund, 
the proposal further reduces the amount available by deducting amounts 
needed to fund increases in OCC's capital requirements.\48\ The 
commenters asserted that the approach thus abandons the industry 
utility model in favor of a profit-maximizing structure that 
prioritizes dividends and enhances the future returns of the 
Stockholder Exchanges at the expense of members and participants.\49\
---------------------------------------------------------------------------

    \45\ See SIFMA Letter; BATS Letter I; BOX Letter I; MM Letter; 
SIG Letter II; and KCG Letter I.
    \46\ See SIFMA Letter; BATS Letter I; MM Letter; and KCG Letter 
I.
    \47\ See SIFMA Letter and KCG Letter I.
    \48\ Id.
    \49\ Id.; BATS Letter I.
---------------------------------------------------------------------------

    In its response, OCC disagreed and contended that the proposal is 
consistent with the industry utility model because it effectively 
refunds 100% of the excess funds not paid to fund capital requirements 
or replenishment commitments of the Stockholder Exchanges.\50\ 
Additionally, OCC asserted that it is a mischaracterization to describe 
the proposal as a departure from the industry utility model because the 
proposal allows for the Board of Directors to make adjustments to fees 
based on expenses, volumes, and revenues if projections for the 
remainder of the calendar year show that either: (i) Fee levels will be 
higher than projected or (ii) operating expenses are lower than 
budgeted, thereby allowing market participants to take advantage of 
lower fees.\51\
---------------------------------------------------------------------------

    \50\ See OCC Letter I.
    \51\ See OCC Letter II.
---------------------------------------------------------------------------

    Six commenters stated that the OCC proposal failed to adequately 
discuss the viability of alternative means of raising capital,\52\ such 
as raising capital from third-party investors, or from clearing 
members, which would offer non-equity owner exchanges the opportunity 
to become Stockholders so that they may also participate with respect 
to dividends.\53\ Two commenters specified that they were not invited 
to participate in the proposal process, nor were they aware of the 
proposal until it was filed with the Commission.\54\ One commenter 
stated that it would have offered to provide equity capital to the OCC 
at a rate of return significantly less than what the existing 
Stockholder Exchanges would receive under the proposed plan.\55\ 
Another commenter suggested a specific alternative known as a ``Payer-
Asset'' account, whereby excess fee revenue would be escrowed to a 
payer asset account that would not be an asset of the Stockholder 
Exchanges, but rather would be property of the market participants.\56\ 
Excess fees from the account would be returned to market participants 
through rebates, and, in the event of the dissolution of OCC, the 
account would be distributed to the investors as opposed to the 
Stockholder

[[Page 13066]]

Exchanges.\57\ Because of disputes regarding the process, one commenter 
suggested a 60-day hold on the approval, so that any party with a 
superior financial proposal may be given the opportunity to present 
such plan to OCC.\58\
---------------------------------------------------------------------------

    \52\ See BATS Letter I and II; MIAX Letter I and II; MM Letter; 
SIFMA Letter; SIG Letter II; and KCG Letter I.
    \53\ See BATS Letter I and II; MIAX Letter I and II; MM Letter; 
SIFMA Letter; and KCG Letter I.
    \54\ See BATS Letter II and III; and BOX Letter II.
    \55\ See BATS Letter II.
    \56\ See MM Letter.
    \57\ Id.
    \58\ See MIAX Letter II.
---------------------------------------------------------------------------

    OCC responded to these commenters by stating that the Board of 
Directors considered potential alternatives, engaging in a nearly year-
long process in which it analyzed a wide range of alternative methods 
to increase capital before determining that the Capital Plan was the 
most viable and in the best interests of OCC.\59\ OCC also stated that 
an escrow fund would not be an asset of OCC, and therefore may not 
constitute liquid net assets funded by equity.\60\
---------------------------------------------------------------------------

    \59\ See OCC Letter I.
    \60\ See OCC Letter II.
---------------------------------------------------------------------------

    One commenter argued that the Replenishment Capital Plan is more of 
a loan than equity capital and that the Replenishment Capital Plan is 
structured such that the likelihood of it ever being called is very 
low.\61\ That commenter also argued that the new reserve capital 
structure creates a conflict of interest in OCC's budget because it 
would unjustly enrich the five Stockholder Exchanges and create a 
conflict in the performance of their positions on OCC's Board of 
Directors.\62\
---------------------------------------------------------------------------

    \61\ See MM Letter.
    \62\ Id.
---------------------------------------------------------------------------

    OCC countered the first contention by stating that the 
Replenishment Capital will be equity capital because: (i) It will be 
listed on the balance sheet as stockholders' equity; (ii) it will be 
funded in exchange for the issuance of Class C common stock; (iii) it 
will be treated as equity for tax purposes; and, most importantly, (iv) 
the holders of the Class C common stock will be subordinated to those 
creditors of OCC in the event of any bankruptcy or liquidation.\63\ In 
addition, OCC stated that even though the Replenishment Capital is not 
intended to remain outstanding indefinitely, there is no legal 
requirement that it be repurchased and it is far from assured, given 
the circumstances under which it would be funded, that it ever would be 
repurchased.\64\
---------------------------------------------------------------------------

    \63\ See OCC Letter II.
    \64\ Id.
---------------------------------------------------------------------------

    As to the assertion regarding conflicts, OCC responded that the 
proposal's terms require the ongoing participation and assent of the 
industry representatives on the Board of Directors.\65\ Additionally, 
changes to each of the OCC Fee, Dividend, and Refund Policies all 
require an affirmative vote of two-thirds of the Board of Directors as 
well as the approval of each of the Stockholder Exchanges.\66\ OCC 
further noted that in order to adopt an annual budget, there must be a 
majority vote of the Board of Directors, thus requiring support and 
approval from both public directors and member directors.\67\
---------------------------------------------------------------------------

    \65\ Id.
    \66\ Id.
    \67\ Id.
---------------------------------------------------------------------------

    Four commenters suggested that there were multiple governance 
issues involved with the Board of Directors' approval of the OCC 
proposal, including that OCC failed to follow its own By-Laws or 
internal policies.\68\ For example, two commenters stated that, at the 
time of the vote, OCC only had three public directors instead of five 
as required by OCC By-Laws, and that the vacancies for these positions 
were not filled until after the vote on the Capital Plan.\69\ Further, 
these same commenters took issue with whether the Capital Plan was 
approved by a ``majority,'' because of the nine clearing members, one 
did not attend, one abstained, four voted in favor, and three voted 
against.\70\ These commenters argued that an abstention should be 
counted as a ``no'' vote, which would mean that a vote of the member 
directors was evenly split.\71\ Two commenters contended that because 
this Capital Plan is a matter of competitive significance, OCC failed 
to follow its By-Laws as well as representations it made to the 
Commission in adopting those By-Laws, by not promptly informing non-
Stockholder Exchanges of the Capital Plan.\72\ These commenters raised 
the concern that had non-Stockholder Exchanges been promptly informed 
of this matter, they would have had a right by request to make 
presentations regarding the Capital Plan to the OCC Board of Directors 
or appropriate committee of the board.\73\
---------------------------------------------------------------------------

    \68\ See MIAX Letter II; BATS Letter II and III; BOX Letter II; 
and SIG Letter I.
    \69\ See MIAX Letter II and BATS Letter II.
    \70\ Id.
    \71\ Id.
    \72\ See BATS Letter III and BOX Letter II.
    \73\ Id.
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    OCC responded that the proposed Capital Plan was properly approved 
in accordance with OCC's By-Laws.\74\ Specifically, OCC articulated 
that its Capital Plan received the affirmative vote of two-thirds of 
the directors ``then in office,'' which is the relevant standard under 
OCC's By-Laws.\75\
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    \74\ See OCC Letter IV.
    \75\ Id.
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    Commenters further took issue with the vote approving the Capital 
Plan because interested directors generally recuse themselves from 
interested party transactions, and the five Stockholder Exchanges 
failed to recuse themselves from either the deliberations or the vote, 
despite having a significant economic interest in the outcome of the 
vote.\76\ One commenter stated that the Stockholder Exchanges also 
should have recused themselves under OCC's own conflict of interest 
policy, and that their failure to do so should invalidate the vote 
approving the proposal.\77\
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    \76\ See MIAX Letter II; BATS Letter II; and SIG Letters I and 
II.
    \77\ See SIG Letter I.
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    OCC responded that the approval of the Capital Plan did not require 
any of its directors to recuse themselves.\78\ OCC cited to both its 
By-Laws and Delaware law to support its position. Specifically, OCC 
stated that under Delaware law, a decision is not improper simply 
because directors participating in the decision had an interest in the 
decision.\79\ OCC noted that, in accordance with Delaware General 
Corporation Law, all material facts were disclosed and known to its 
Board of Directors prior to its good faith approval of the proposed 
Capital Plan.\80\ OCC further stated that its Board of Directors 
satisfied OCC's By-Laws in approving the Capital Plan, namely the 
requirements set forth in Article XI, Section 1 of its By-Laws, which 
requires ``the affirmative vote of two-thirds majority of the directors 
then in office (and not less than a majority of the number of directors 
fixed by the By-Laws).'' \81\
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    \78\ See OCC Letter IV.
    \79\ See OCC Letter IV (citing to Section 144, Delaware General 
Corporation Law).
    \80\ Id.
    \81\ Id.
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    In addition, three commenters suggested that because the Capital 
Plan raises significant issues, at a minimum, it should not be subject 
to delegation to Commission staff for approval, and instead should be 
referred for full review and consideration by the Commissioners.\82\
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    \82\ See BATS Letter II; KCG Letter II; and SIG Letter I.
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III. Discussion and Commission Findings

    Section 19(b)(2)(C) of the Act \83\ directs the Commission to 
approve a proposed rule change of a self-regulatory organization if the 
Commission finds that the proposed rule change is consistent with the 
requirements of the Act and the rules

[[Page 13067]]

and regulations thereunder applicable to such organization.
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    \83\ 15 U.S.C. 78s(b)(2)(C).
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    After carefully considering OCC's proposal, the comments received, 
and OCC's responses thereto, the Commission finds that OCC's proposed 
rule change is consistent with the requirements of the Act and the 
rules and regulations thereunder applicable to a registered clearing 
agency.\84\ In particular, the Commission finds that the Capital Plan 
is consistent with the following provisions of the Act: (i) Section 
17A(b)(3)(A); \85\ (ii) Section 17A(b)(3)(F); \86\ (iii) Section 
17A(b)(3)(D); \87\ and (iv) Section 17A(b)(3)(I),\88\ as described 
below.
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    \84\ As the Commission noted in the notice of filing of the 
proposed rule change, OCC stated that the purpose of this proposal 
is, in part, to facilitate compliance with proposed Commission rules 
and address Principle 15 of the PFMIs. The proposed Commission rules 
are pending. See Securities Exchange Act Release No. 71699 (March 
12, 2014), 79 FR 29508 (May 22, 2014) (S7-03-14). As such, the 
possibility of future Commission rulemaking is immaterial to both 
OCC's justification for the Capital Plan and to our analysis. 
Therefore, the Commission has evaluated this proposed rule change 
under the Act and the rules currently in force thereunder. See 
Securities Exchange Act Release No. 74136 (January 26, 2015), 80 FR 
5171 (January 30, 2015) (SR-OCC-2015-02).
    \85\ 15 U.S.C. 78q-1(b)(3)(A).
    \86\ 15 U.S.C. 78q-1(b)(3)(F).
    \87\ 15 U.S.C. 78q-1(b)(3)(D).
    \88\ 15 U.S.C. 78q-1(b)(3)(I).
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    The Commission recognizes that commenters did not support the 
Capital Plan. The Commission, however, must approve a proposed rule 
change if it finds that the proposed rule change is consistent with the 
requirements of the Act and the applicable rules and regulations 
thereunder. Although the commenters raised a number of substantive 
points, the Commission was not persuaded that these concerns render 
OCC's Capital Plan inconsistent with the Act and the applicable rules 
and regulations thereunder.
    In particular, the Commission finds that the Capital Plan is 
consistent with Section 17A(b)(3)(A) of the Act,\89\ which requires, in 
part, that a registered clearing agency is so organized and has the 
capacity to be able to facilitate the prompt and accurate clearance and 
settlement of securities transactions, and to safeguard securities and 
funds in its custody and control, or for which it is responsible. OCC's 
proposed rule change is consistent with these requirements because the 
Capital Plan is designed to ensure that OCC can continue to promptly 
and accurately clear and settle securities transactions, and assure the 
safeguarding of securities and funds which are in the custody or 
control of OCC or for which it responsible even if it suffers 
significant operational losses. The Capital Plan is designed to provide 
OCC with sufficient capital and an ability to replenish capital in the 
event such capital falls below certain levels, which in turn further 
positions OCC to remain sufficiently capitalized at all times.
---------------------------------------------------------------------------

    \89\ 15 U.S.C. 78q-1(b)(3)(A).
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    The Commission also finds that the Capital Plan is consistent with 
Section 17A(b)(3)(F) of the Act,\90\ which requires, in part, that the 
rules of a registered clearing agency are designed to promote the 
prompt and accurate clearance and settlement of securities 
transactions, and to assure the safeguarding of securities and funds 
which are in the custody or control of the clearing agency or for which 
it is responsible. OCC's Capital Plan is consistent with these 
requirements because OCC is amending its By-Laws and other governing 
documents to adopt certain policies for the purpose of implementing the 
Capital Plan, which, as described above, is designed to ensure that OCC 
can continue to promptly and accurately clear and settle securities 
transactions, and assure the safeguarding of securities and funds which 
are in the custody or control of OCC or for which it is responsible 
even if it suffers significant operational losses.
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    \90\ 15 U.S.C. 78q-1(b)(3)(F).
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    In addition, the Commission finds that the Capital Plan is 
consistent with Section 17A(b)(3)(D) of the Act,\91\ which requires 
that the rules of a registered clearing agency provide for the 
equitable allocation of reasonable dues, fees, and other charges among 
its participants. One commenter contended that the Capital Plan is 
inconsistent with this provision.\92\ This commenter's concerns were 
focused on possible future fees.\93\ Specifically, the commenter 
expressed concern that: (i) The Dividend Policy creates a conflict of 
interest for the Stockholder Exchanges that could influence future 
fees; \94\ and (ii) OCC should not increase its budget ``without the 
ability of market participants, who ultimately finance OCC through 
transaction fees, to be assured that OCC (as the only clearing agency 
for U.S. listed options) continues to operate with the public 
marketplace foremost in mind.'' \95\ Neither of these concerns about 
possible future fees convinces the Commission that the Capital Plan is 
inconsistent with providing for the equitable allocation of reasonable 
dues, fees, and other charges among its participants.\96\
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    \91\ 15 U.S.C. 78q-1(b)(3)(D).
    \92\ See MM Letter at 13.
    \93\ See MM Letter.
    \94\ ``If the SEC allows the five owners to monetize OCC in this 
fashion, the conflict of interest will diminish the prospect that 
OCC will perform efficiently to keep transaction fees low and 
operating expense under control. [. . .] Given the potential of the 
dividend to increase with the size of OCC's budget, we are concerned 
where transaction fees may go in the future.'' MM Letter at 13.
    \95\ MM Letter at 5.
    \96\ In order to address the concern that the conflict of 
interest will diminish the prospect that OCC will perform 
efficiently to keep transaction fees low and operation expenses 
under control, OCC stated in response that higher operating expenses 
will result in an increased Target Capital Requirement, which will 
require additional capital contributions to be withheld from both 
dividends and refunds. Thus, OCC argues, an increase in operating 
expenses results in larger cumulative capital contributions from the 
Stockholder Exchanges. If an increase in the Business Risk Buffer 
does result in an increase in dividends, the larger cumulative 
capital contributions will have the effect of reducing any increase 
in the rate of return that would otherwise result from the increase 
in dividends. See OCC Letter II. In addition, OCC also contends that 
it would be necessary for the exchange directors to obtain 
additional support either from public directors or member directors 
or a combination of the two in order to approve a budget with 
increased expenses. See OCC Letter I.
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    Future changes to OCC's fee schedule as well as future changes to 
the Fee Policy, Refund Policy, and Dividend Policy, are subject to 
Section 19(b)(1) of the Act \97\ and Section 806(e) of the Payment, 
Clearing, and Settlement Supervision Act,\98\ as applicable, both of 
which require OCC to (i) submit appropriate regulatory filings with the 
Commission,\99\ (ii) provide an opportunity for public comment,\100\ 
and (iii) require the Commission to review and ultimately 
disapprove,\101\ object to,\102\ or require modification or 
rescission,\103\ as applicable, if these future proposed changes do not 
meet regulatory requirements. OCC recognizes this.\104\
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    \97\ 15 U.S.C. 78s(b)(1).
    \98\ 12 U.S.C. 805(e).
    \99\ See 15 U.S.C. 78s(b)(1); 12 U.S.C. 805(e); and 17 CFR 
240.19b-4(n).
    \100\ See 15 U.S.C. 78s(b)(1) and 17 CFR 240.19b-4(n).
    \101\ See 15 U.S.C. 78s(b)(2)(C)(ii).
    \102\ See 12 U.S.C. 5465(e)(1)(F).
    \103\ See 12 U.S.C. 5465(e)(2)(D).
    \104\ See OCC Letter II at 11.
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    Moreover, the Capital Plan is consistent with providing for the 
equitable allocation of reasonable dues, fees, and other charges among 
its participants in the following ways. The Fee Policy provides for the 
Business Risk Buffer, which is designed to ensure that fees will be 
sufficient to cover projected operating expenses. The Refund Policy and 
Dividend Policy both allow for refunds of fees or payment of dividends, 
respectively, only to the extent that the distribution of which would 
allow OCC to maintain shareholders' equity at the Target

[[Page 13068]]

Capital Requirement. The Refund Policy and Dividend Policy also 
prohibit refunds and dividends when Class C Common Stock is outstanding 
under the Replenishment Capital Plan, and OCC is in the process of 
rebuilding its capital base. In addition, the Replenishment Capital 
Plan establishes a mandatory mechanism for the contribution of 
additional capital by OCC's Stockholder Exchanges in the event capital 
falls below desired levels. Together, these features of the Capital 
Plan help ensure that OCC maintains levels of capital sufficient to 
allow it to absorb substantial business losses and meet its ongoing 
obligations as a critical component of the national system for 
clearance and settlement, which in turn helps reduce OCC's overall 
level of risk, while also being consistent with Section 17A(b)(3)(D) of 
the Act.\105\
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    \105\ 15 U.S.C. 78q-1(b)(3)(D).
---------------------------------------------------------------------------

    The Commission finds the Capital Plan is consistent with Section 
17A(b)(3)(I) of the Act,\106\ which requires that the rules of a 
registered clearing agency do not impose any burden on competition not 
necessary or appropriate in furtherance of the purposes of the Act. The 
Commission recognizes that four commenters set forth arguments that the 
Capital Plan is inconsistent with this provision because the Capital 
Plan does not address the competitive burden on non-Stockholder 
Exchanges.\107\ More specifically, these commenters argue that the 
Capital Plan places the Stockholder Exchanges at a competitive 
advantage over the non-Stockholder Exchanges because they would be able 
to use dividend payments to offset operating costs, which would in turn 
enable them to provide trading and execution services at lower prices 
than their non-Stockholder counterparts.\108\ Another commenter stated 
that the rate of return is excessive, far above market rates, and does 
not reflect the low risk of the investment.\109\ As further discussed 
below, the Commission is not persuaded by these arguments.
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    \106\ 15 U.S.C. 78q-1(b)(3)(I).
    \107\ See BATS Letter I and II; BOX Letter I; MIAX Letter I and 
II; and MM Letter.
    \108\ Id.
    \109\ See BATS Letter II.
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    As determined by OCC's Board of Directors, the Stockholder 
Exchanges have agreed to make a substantial equity contribution to 
ensure OCC has sufficient capital immediately and have agreed to commit 
to a replenishment capital contribution should OCC's capital fall below 
specified levels. OCC considers that the dividends are being paid to 
Stockholder Exchanges to compensate the Stockholder Exchanges for 
bearing the risk of the loss of their capital contributions, both in 
the near term and in the future, should OCC need to replenish those 
funds. These contributions and potential contributions are considerable 
and remain at risk when outstanding. As such, OCC considers the 
dividends not to be windfall profits or an extra refund, as some 
commenters contend, but rather a plan to direct cash flows to those 
entities that put their capital at risk. The Stockholder Exchanges are 
contributing their own capital, and bearing the risk of that 
contribution, as such, the dividends serve as compensation for bearing 
that risk.
    Further, the cost of that capital investment and the rate of return 
that will be paid to the Stockholder Exchanges were determined to be 
fair and in the best interests of OCC by OCC's Board of Directors, 
which has representation from the Stockholder Exchanges, clearing 
members, and independent directors, and in consultation with outside 
financial advisors. OCC has represented that the Board of Directors 
determined, in its exercise of business judgment and in compliance with 
its governance provisions and its responsibilities under Delaware 
corporate laws, that the dividends were fair and in the best interests 
of OCC, particularly in light of the nature of the investment and the 
risks inherent in the funded and unfunded capital commitments by the 
Stockholder Exchanges.
    We understand that in a perfect capital market, the dividend would 
compensate Stockholder Exchanges exactly for the risk borne by the 
capital contribution (i.e., the rate of return exactly equals OCC's 
cost of capital). Further, we acknowledge that a dividend that does not 
accurately reflect the true risk of the investment may result in a 
burden on competition on one group versus another. The magnitude and 
incidence of the burden depends on whether the dividend payment is high 
or low relative to the true cost of the capital. OCC is a unique entity 
and not publicly traded. As such, determining accurate rates on the 
cost of capital is subjective. Absent available market prices for OCC's 
equity shares, OCC's Board of Directors must use its judgment to 
determine the appropriate or competitive rate of return and the 
dividend policy that appropriately reflects the risk of the Stockholder 
Exchanges' equity investment.
    Given the critical role OCC plays in the U.S. options market and 
its designation as a systemically important financial market utility, 
the Commission believes that it is both necessary and appropriate for 
OCC to obtain and retain sufficient capital to ensure its ongoing 
operations in the event of substantial business losses. While the 
precise magnitude and incidence of any burden that exists in this case 
is necessarily subjective, the Commission believes that, even if OCC's 
Capital Plan may result in some burden on competition, such a burden is 
necessary and appropriate in furtherance in the purposes of the Act 
given the importance of OCC's ongoing operations to the U.S. options 
market and the role of the Capital Plan in assuring its ability to 
facilitate the clearance and settlement of securities transactions in a 
wide range of market conditions. For these reasons, the Commission 
believes OCC's Capital Plan, as approved by its Board of Directors in 
the exercise of its business judgment, is consistent with OCC's 
obligations under Section 17A(b)(3)(I) of the Act.\110\
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    \110\ 15 U.S.C. 78q-1(b)(3)(I).
---------------------------------------------------------------------------

    Several commenters raised concerns that OCC's Capital Plan was not 
approved in accordance with OCC's By-Laws due to vacancies on the 
Board, that certain Board directors (i.e., Stockholder Exchanges) were 
``interested parties'' and therefore should have recused themselves 
from any decision to approve or disapprove OCC's proposal, and OCC 
failed to promptly inform non-Stockholder Exchanges of the proposed 
change.\111\ As indicated in OCC's response letter,\112\ OCC represents 
that OCC and its Board of Directors have conducted its business in 
conformity with applicable state laws and its own By-Laws.\113\ The 
Commission has no basis to dispute OCC's position on this matter. For 
these reasons, the Commission believes OCC's Capital Plan, as approved, 
is consistent with OCC's obligations under the Act.\114\
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    \111\ See MIAX Letter II; BATS Letter II and III; SIG Letter I; 
and BOX Letter II.
    \112\ See OCC Letter IV.
    \113\ See OCC Letter IV (citing to Section 144, Delaware General 
Corporation Law). Subsequently, OCC confirmed that OCC and its Board 
of Directors conducted its business in conformity with its By-Laws 
identified in the comment letters cited in note 111.
    \114\ 15 U.S.C. 78q-1(b)(3).
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IV. Conclusion

    On the basis of the foregoing, the Commission finds that the 
proposal is consistent with the requirements of the Act and in 
particular with the requirements of Section 17A of the Act \115\ and 
the rules and regulations thereunder.
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    \115\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).

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[[Page 13069]]

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\116\ that the proposed rule change (File No. SR-OCC-2015-02) be, 
and it hereby is, approved as of the date of this notice or the date of 
an order by the Commission authorizing OCC to implement OCC's advance 
notice proposal that is consistent with this proposed rule change (File 
No. SR-OCC-2014-813), whichever is later.
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    \116\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\117\
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    \117\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2015-05556 Filed 3-11-15; 8:45 am]
 BILLING CODE 8011-01-P
```