Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Notices 51651 

1 15 U.S.C. 78k–1. 

2 17 CFR 242.608. 

3The OPRA Plan is a national market system plan 

approved by the Commission pursuant to Section 

11A of the Act and Rule 608 thereunder. See 

Securities Exchange Act Release No. 17638 (March 

18, 1981), 22 SEC Docket 484 (March 31, 1981). The 

full text of the OPRA Plan is available at http:// 

www.opradata.com. 

The OPRA Plan provides for the collection and 

dissemination of last sale and quotation information 

on options that are traded on the participant 

exchanges. The seven participants to the OPRA 

Plan are the American Stock Exchange LLC, the 

Boston Stock Exchange, Inc., the Chicago Board 

Options Exchange, Incorporated, the International 

Securities Exchange, LLC, the NASDAQ Stock 

Market LLC, the NYSE Arca, Inc., and the 

Philadelphia Stock Exchange, Inc. 

4See Securities Exchange Act Release No. 58173 

(July 16, 2008), 73 FR 42631 (‘‘Notice’’). 

5The definition currently appears in Section 5 of 

OPRA’s Vendor Agreement and in OPRA’s 

‘‘Electronic Form of Subscriber Agreement’’ and 

‘‘Hardcopy Form of Subscriber Agreement.’’ These 

two forms are Attachments B–1 and B–2 to OPRA’s 

form of Vendor Agreement. OPRA’s form of Vendor 

Agreement and its forms of Subscriber Agreements 

are available on OPRA’s Web site, http:// 

www.opradata.com. OPRA is proposing changes to 

Section 5 of its form of Vendor Agreement and in 

its Electronic Form of Subscriber Agreement and 

Hardcopy Form of Subscriber Agreement to 

implement the revised definition. 

6The term ‘‘qualifying trust’’ is proposed to be 

defined essentially to refer to a trust established for 

the benefit of one or more members of the trustee’s 

immediate family. 

7OPRA is also proposing to adopt a new policy 

entitled ‘‘Policy with Respect to Definition of the 

Term ‘Nonprofessional.’ ’’

8This phrase is used in Rule 17a–4(f)(2)(ii)(A), 17 

CFR 240.17a–4(f)(2)(ii)(A). Rule 17a–4(f) describes 

the circumstances in which brokers and dealers 

may retain certain records in electronic form. 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58434; File No. SR–OPRA–

2008–02] 

Options Price Reporting Authority; 

Order Approving an Amendment, as 

Modified by Amendment No. 1 Thereto, 

to the Plan for Reporting of 

Consolidated Options Last Sale 

Reports and Quotation Information To 

Amend OPRA’s Vendor Agreement and 

Related Documents and To Adopt a 

New Policy 

August 27, 2008. 

I. Introduction 

On May 30, 2008, the Options Price 

Reporting Authority (‘‘OPRA’’) 

submitted to the Securities and 

Exchange Commission (‘‘Commission’’), 

pursuant to Section 11A of the 

Securities Exchange Act of 1934 

(‘‘Act’’)1 and Rule 608 thereunder,2 an 

amendment to the Plan for Reporting of 

Consolidated Options Last Sale Reports 

and Quotation Information (‘‘OPRA 

Plan’’).3 On July 1, 2008, OPRA 

submitted Amendment No. 1 to the 

proposed amendment to the OPRA Plan. 

The proposed OPRA Plan amendment, 

as modified by Amendment No. 1, 

would modify OPRA’s Vendor 

Agreement in several respects, 

including revising OPRA’s definition of 

the term ‘‘Nonprofessional.’’ In 

connection with the revision of the term 

‘‘Nonprofessional,’’ the proposed OPRA 

Plan amendment would also amend 

OPRA’s ‘‘Electronic Form of Subscriber 

Agreement’’ and ‘‘Hardcopy Form of 

Subscriber Agreement’’ and adopt a new 

policy. The proposed OPRA Plan 

amendment, as modified by 

Amendment No. 1, was published for 

comment in the Federal Register on July 

22, 2008.4 The Commission received no 

comment letters in response to the 

Notice. 

This order approves the proposed 

OPRA Plan amendment, as modified by 

Amendment No. 1. 

II. Description of the Proposal 

The proposed Amendment to OPRA’s 

Vendor Agreement has several 

purposes. 

A. Section 5: Definition of 

‘‘Nonprofessional’’; Revision of forms of 

Subscriber Agreement; and New Policy 

OPRA proposes to revise its definition 

of the term ‘‘Nonprofessional.’’ 5 OPRA’s 

current definition of the term 

‘‘Nonprofessional’’ specifies that a 

person must be an ‘‘individual’’ in order 

to qualify as a Nonprofessional. OPRA 

has concluded that this aspect of the 

definition should be revised to state that 

a ‘‘legal person’’ may qualify as a 

Nonprofessional if the legal person is 

either an individual (a ‘‘natural person’’) 

or a ‘‘qualifying trust.’’ 6

The Addendum for Nonprofessionals 

that is attached to OPRA’s form of 

Subscriber Agreement currently states 

that a person must use OPRA Data 

‘‘solely in connection with [the 

person’s] individual personal 

investment activities’’ in order to 

qualify as a Nonprofessional. OPRA has 

concluded that this language also 

should be revised to clarify that a 

natural person may qualify as a 

Nonprofessional if the person uses 

OPRA Data for the person’s own benefit 

and for the benefit of other members of 

the person’s immediate family and 

qualifying trusts of which the person is 

the trustee or custodian, and to include 

a parallel statement with respect to 

qualifying trusts to the effect that a 

qualifying trust may constitute a 

Nonprofessional only if the trust uses 

OPRA Data only for the benefit of the 

trust.7

B. Section 14: Reporting and Record 

Keeping Requirements 

OPRA also proposes clarifying 

changes to four provisions in Section 14 

of the Vendor Agreement, which 

describes the reports and record keeping 

that OPRA requires of Vendors. 

Specifically, the revised language makes 

clear that: (1) Pursuant to paragraph 

14(a), OPRA requires only summary 

information on a monthly basis with 

respect to Subscribers that have entered 

into Subscriber Agreements with the 

Vendor; (2) a Vendor’s reports to OPRA 

pursuant to paragraph 14(a) are to be 

provided electronically in a form 

reasonably satisfactory to OPRA; (3) 

whereas reports made pursuant to 

paragraph 14(a) may contain summary 

information with respect to Subscribers 

that have entered into Subscriber 

Agreements with the Vendor, reports 

made pursuant to paragraph 14(b) must 

include all information in the Vendor’s 

list of Subscribers described in the first 

sentence of paragraph 14(a); (4) 

pursuant to 14(c)(3), a Vendor is not 

required to retain hardcopy originals of 

signed hardcopy Subscriber Agreements 

and may instead retain copies, either in 

hardcopy form or in electronic form, 

provided that copies that are maintained 

electronically are maintained in a ‘‘nonrewriteable, non-eraseable format;’’ 8

and (5) a Vendor is required to retain 

records with respect to its agreements 

with a Subscriber for at least three years 

after it discontinues furnishing OPRA 

Data to that Subscriber, and requires a 

Vendor to retain records with respect to 

the actual use of OPRA Data for at least 

three years after the records are created. 

C. Section 19: Provisions for Modifying 

the Vendor Agreement 

OPRA is proposing to modify the 

language in paragraph 19(a) so that it 

clearly states that, if OPRA wishes to 

use paragraph 19(a) to implement a 

change in the Vendor Agreement after 

complying with the applicable 

requirements of the Act, OPRA must 

furnish written notice of the change to 

the Vendor, following which the Vendor 

need not ‘‘opt in’’ to the change in order 

to maintain its status as a Vendor, but 

may ‘‘opt out’’ of the change by 

terminating its Vendor Agreement if it is 

unwilling to accept the change. The 

revised paragraph makes clear that, if a 

Vendor timely gives notice of 

termination of its Vendor Agreement 

following its receipt of notice of a 

modification of the Vendor Agreement, 

the unmodified Vendor Agreement will 

constitute the agreement between the 


sroberts on PROD1PC77 with NOTICES
51652 Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Notices 

9OPRA also proposes to delete current paragraph 

19(b) (modifications relating Electronic Subscriber 

Agreement) and paragraph 19(c). 

10 In approving this proposed OPRA Plan 

Amendment, the Commission has considered its 

impact on efficiency, competition, and capital 

formation. 15 U.S.C. 78c(f). 

11 15 U.S.C. 78k–1. 

12 17 CFR 242.608. 

13 15 U.S.C. 78k–1. 

14 17 CFR 242.608. 

15 15 U.S.C. 78k–1. 

16 17 CFR 242.608. 

17 17 CFR 200.30–3(a)(29). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3The term ‘‘Restructuring Transaction’’ is defined 

in proposed CBOE Rule 1.1(hhh) as ‘‘the 

restructuring of the Exchange from a non-stock 

corporation to a stock corporation and wholly 

owned subsidiary of CBOE Holdings, Inc.’’

4The substance of the proposed rule change and 

its filing under Section 19(b)(2) of the Exchange Act 

(15 U.S.C. 78s(b)(2)), and Rule 19b–4 thereunder 

(CFR 240.19b–4), have been approved by the Board 

of Directors of the Exchange. The Exchange must 

obtain, but has not yet obtained, formal approval 

from the Board of Directors of the Exchange, as well 

as approval from the membership, for the changes 

set forth in this proposed rule change. Once it has 

obtained those approvals, the Exchange plans to file 

a technical amendment to this proposed rule 

change to reflect those approvals. Once those 

approvals are obtained, no further action by the 

Exchange in connection with this proposed rule 

change will be required. 

Vendor and OPRA until the effective 

date of the Vendor’s termination.9

D. Section 21: ‘‘Assignment’’ Provision 

Section 21 of the Vendor Agreement 

currently states that the Vendor may not 

assign the Vendor Agreement without 

the consent of OPRA ‘‘except to a 

successor corporation upon merger or 

consolidation of Vendor, or to a 

corporation acquiring all or 

substantially all of the property, assets 

and business of Vendor.’’ OPRA is 

proposing to modify that language to 

accommodate other business entities in 

addition to corporations. 

III. Discussion 

After careful review, the Commission 

finds that the proposed OPRA Plan 

amendment, as modified by 

Amendment No. 1, is consistent with 

the requirements of the Act and the 

rules and regulations thereunder.10

Specifically, the Commission finds that 

the proposed OPRA Plan amendment is 

consistent with Section 11A of the 

Act 11 and Rule 608 thereunder 12 in that 

it is appropriate in the public interest, 

for the protection of investors and the 

maintenance of fair and orderly markets, 

and to remove impediments to, and 

perfect the mechanism of, a national 

market system. 

The Commission notes that OPRA’s 

proposed changes to the definition of 

the term ‘‘Nonprofessional’’ are 

designed to add clarity to the definition 

and better align the definition language 

with Vendors’ and Subscribers’ current 

understanding of the term. In addition, 

the Commission notes that OPRA’s 

proposed changes to Sections 14, 19, 

and 21 are designed to add clarity and 

specificity to these provisions. The 

Commission believes that the proposed 

OPRA Plan amendment should help to 

assure the availability of information 

with respect to quotations and 

transactions in listed options and would 

thereby further one of the principal 

objectives for a national market system 

set forth in Section 11A(a)(1)(C)(iii) of 

the Act. Therefore, the Commission 

believes that OPRA’s proposal is 

consistent with Section 11A of the 

Act 13 and Rule 608 thereunder.14

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 11A of the Act,15 and Rule 608 

thereunder,16 that the proposed OPRA 

Plan amendment (SR–OPRA–2008–02), 

as modified by Amendment No. 1, be, 

and it hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.17

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–20469 Filed 9–3–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58425; File No. SR–CBOE–

2008–88] 

Self-Regulatory Organizations; 

Chicago Board Options Exchange, 

Incorporated; Notice of Filing of a 

Proposed Rule Change Relating to the 

Demutualization of Chicago Board 

Options Exchange, Incorporated 

August 26, 2008. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’ or ‘‘Exchange Act’’),1 and Rule 

19b–4 thereunder,2 notice is hereby 

given that on August 21, 2008, the 

Chicago Board Options Exchange, 

Incorporated (‘‘CBOE’’ or ‘‘Exchange’’) 

filed with the Securities and Exchange 

Commission (the ‘‘Commission’’ or 

‘‘SEC’’) the proposed rule change as 

described in Items I, II, and III below, 

which Items have been prepared by 

CBOE. The Commission is publishing 

this notice to solicit comments on the 

proposed rule change from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

CBOE is filing this proposed rule 

change in connection with its plan to 

restructure from a Delaware non-stock 

corporation to a Delaware stock 

corporation that will be a wholly owned 

subsidiary of CBOE Holdings, Inc. 

(‘‘CBOE Holdings’’), a holding company 

organized as a Delaware stock 

corporation. As part of this 

Restructuring Transaction, a Certificate 

of Incorporation and Bylaws will be 

adopted for CBOE Holdings.3 In 

addition, the Exchange’s Certificate of 

Incorporation and Constitution will be 

replaced with a new Certificate of 

Incorporation and Bylaws as a result of 

the Restructuring Transaction. Finally, 

the Exchange’s Rules will be amended 

to address, among other things, trading 

access to the Exchange after the 

Restructuring Transaction.4

The text of the proposed Certificate of 

Incorporation of CBOE Holdings, the 

proposed Bylaws of CBOE Holdings, the 

proposed Certificate of Incorporation of 

the Exchange, the proposed Bylaws of 

the Exchange, the proposed 

amendments to the Rules of the 

Exchange, the proposed Voting 

Agreement between CBOE Holdings and 

the Exchange, and the proposed 

deletion of the Constitution of the 

Exchange is available on CBOE’s Web 

site (http://www.cboe.org/Legal), at 

CBOE’s Office of the Secretary, and at 

the Commission’s Public Reference 

Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, 

CBOE included statements concerning 

the purpose of, and basis for, the 

proposed rule change and discussed any 

comments it received on the proposed 

rule change. The text of these statements 

may be examined at the places specified 

in Item IV below. CBOE has prepared 

summaries, set forth in Sections A, B, 

and C below, of the most significant 

aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

Purpose 

(1) The Restructuring Transaction 

CBOE is filing this proposed rule 

change in connection with its plan to 

restructure from a Delaware non-stock 

corporation owned by its members to a 


sroberts on PROD1PC77 with NOTICES