
[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Notices]
[Pages 62558-62562]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25283]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68020; File No. SR-CBOE-2012-094]


 Self-Regulatory Organizations; Chicago Board Options Exchange, 
Incorporated; Notice of Filing of a Proposed Rule Change To Update Its 
Rule 31.10--Corporate Governance--in Order To Comply With New Rule 10C-
1 Under the Securities Exchange Act of 1934

October 9, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on September 25, 2012, Chicago Board Options Exchange, 
Incorporated (the ``Exchange'' or ``CBOE'') filed with the Securities 
and Exchange Commission (the ``Commission'') the proposed rule change 
as described in Items I, II, and III below, which Items have been 
prepared by the Exchange. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    CBOE proposes to update its Rule 31.10--Corporate Governance--in 
order to comply with new Rule 10C-1 under the Act. The text of the 
proposed rule change is available on the Exchange's Web site (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange'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, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

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

1. Purpose
    Effective July 27, 2012, the Commission adopted Rule 10C-1 (the 
``New Rule'') to the Act.\3\ The New Rule directs national securities 
exchanges to establish listing standards that, among other things, 
require each member of a listed issuer's compensation committee to be a 
member of the board of directors and to be ``independent'', as defined 
in the listing standards of the national securities exchanges. The New 
Rule also discusses issuers' retention of compensation advisers. The 
Exchange hereby proposes to update its Rule 31.10, which discusses 
corporate governance requirements of issuers on the Exchange, in order 
to place Rule 31.10 in compliance with the New Rule.
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    \3\ See Securities Exchange Act Release No. 67220 (June 20, 
2012) 77 FR 38422 (June 27, 2012) (File No. S7-13-11).
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    Rule 31.10 currently states that compensation of the chief 
executive officer, and all other executive officers, of an issuer must 
be determined, or recommended to the board of directors of the issuer 
for determination, either by a majority of all independent directors or 
a compensation committee comprised solely of independent directors. The 
New Rule's requirements regarding a compensation committee, as well as 
the broad definition of ``compensation committee'' and the independence 
of those directors on the compensation committee (all described below), 
make Rule 31.10(c)'s statement that compensation of executive officers 
may be determined by a majority of all independent directors a bit 
superfluous. Due to the broad definition of the term ``compensation 
committee'' as defined in the New Rule, the Exchange hereby proposes to 
simply state that compensation of all executive officers of an issuer 
be determined, or recommended to the board of directors of the issuer 
for determination, by a compensation committee.
    The New Rule provides a definition of ``compensation committee'', 
which the Exchange proposes to adopt. For the purposes of Rule 31.10, 
the term ``compensation committee'' shall mean: (A) A committee of the 
board of directors that is designated as the compensation committee; or 
(B) in the absence of a committee of the board of directors that is 
designated as the compensation committee, a committee of the board of 
directors performing functions typically performed by a

[[Page 62559]]

compensation committee, including oversight of executive compensation, 
even if it is not designated as the compensation committee or also 
performs other functions; or (C) in the absence of a committee as 
described in paragraphs (c)(1)(A) or (B) of Rule 31.10, the members of 
the board of directors who oversee executive compensation matters on 
behalf of the board of directors. The Exchange's proposed definition of 
``compensation committee'' is modeled after that described in the New 
Rule.\4\ The New Rule allows exchanges to exempt issuers who, in the 
absence of a committee as described in paragraphs (c)(1)(A) or (B) of 
Rule 31.10, have a ``compensation committee'' that is composed of the 
members of the board of directors who oversee executive compensation 
matters on behalf of the board of directors from those requirements 
described in paragraphs (a)(1) and (b) of proposed Interpretation and 
Policy .11 to Rule 31.10 (described and discussed below). However, the 
Exchange does not believe that it is unduly burdensome to require 
issuers who, in the absence of a committee as described in paragraphs 
(c)(1)(A) or (B) of Rule 31.10, have a ``compensation committee'' that 
is composed of the members of the board of directors who oversee 
executive compensation matters on behalf of the board of directors to 
comply with paragraphs (a)(1) and (b) of proposed Interpretation and 
Policy .11. Further, providing this exemption might provide issuers 
with a way to avoid those requirements of paragraphs (a)(1) and (b) of 
proposed Interpretation and Policy .11 by simply not having a 
``compensation committee'' as defined in paragraphs (c)(1)(A) or (B) of 
Rule 31.10. Therefore, the Exchange does not propose to exempt issuers 
who, in the absence of a committee as described in paragraphs (c)(1)(A) 
or (B) of Rule 31.10, have a ``compensation committee'' that is 
composed of the members of the board of directors who oversee executive 
compensation matters on behalf of the board of directors from those 
requirements described in paragraphs (a)(1) and (b) of proposed 
Interpretation and Policy .11 to Rule 31.10.
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    \4\ 17 CFR 240.10C-1(c)(2).
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    The New Rule states that ``each member of the compensation 
committee must be an independent member of the board of directors of 
the listed issuer, and must otherwise be independent.'' \5\ The New 
Rule further clarifies that, in determining the independence 
requirements for the members of compensation committees, the Exchange 
must consider all relevant factors, including, but not limited to, the 
source of compensation for that director (including any consulting, 
advisory or other compensatory fee paid by the issuer to the director), 
and whether the director is affiliated with the issuer or a subsidiary 
or affiliate of a subsidiary of the issuer.\6\
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    \5\ 17 CFR 240.10C-1(b)(1)(i).
    \6\ 17 CFR 240.10C-1(b)(1)(ii).
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    The Exchange hereby proposes to amend Rule 31.10(c) to state that 
all members of a compensation committee must be ``independent 
directors'' as defined in Rule 31.10(h)(2). ``Independent director'' is 
defined in Rule 31.10(h)(2) as:

a person other than an officer or employee of the company or its 
subsidiaries or any other individual having a relationship, which, in 
the opinion of the company's board of directors, would interfere with 
the exercise of independent judgment in carrying out the 
responsibilities of a director. The following persons shall not be 
considered independent:
    (A) a director who is, or at any time during the past three years 
was, employed by the company or by any parent or subsidiary of the 
company;
    (B) a director who accepted or who has a family member who accepted 
any payments from the company or any parent or subsidiary of the 
company in excess of $60,000 during the current or any of the past 
three fiscal years, other than the following:
    (i) compensation for board or board committee service;
    (ii) payments arising solely from investments in the company's 
securities;
    (iii) compensation paid to a family member who is a non-executive 
employee of the company or a parent or subsidiary of the company;
    (iv) benefits under a tax-qualified retirement plan, or non-
discretionary compensation; or
    (v) loans permitted under Exchange Act Section 13(k).
    Provided, however, that audit committee members are subject to 
additional, more stringent requirements under Exchange Act Rule 10A-3, 
which requirements are incorporated by reference in the Exchange rules 
pursuant to Rule 31.10(b).
    (C) a director who is a family member of an individual who is, or 
at any time during the past three years was, employed by the company or 
by any parent or subsidiary of the company as an executive officer;
    (D) a director who is, or has a family member who is, a partner in, 
or a controlling shareholder or an executive officer of, any 
organization to which the company made, or from which the company 
received, payments for property or services in the current or any of 
the past three fiscal years that exceed 5% of the recipient's 
consolidated gross revenues for that year, or $200,000, whichever is 
more, other than the following:
    (i) payments arising solely from investments in the company's 
securities; or
    (ii) payments under non-discretionary charitable contribution 
matching programs;
    (E) a director of the listed company who is, or has a family member 
who is, employed as an executive officer of another entity where at any 
time during the past three years any of the executive officers of the 
listed company serve on the compensation committee of such other 
entity;
    (F) a director who is, or has a family member who is, a current 
partner of the company's outside auditor, or was a partner or employee 
of the company's outside auditor who worked on the company's audit at 
any time during any of the past three years; or
    (G) in the case of an investment company, in lieu of Rules 
31.10(h)(2)(A)-(F), a director who is an ``interested person'' of the 
company as defined in Section 2(a)(19) of the Investment Company Act of 
1940, other than in his or her capacity as a member of the board of 
directors or any board committee.\7\
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    \7\ See CBOE Rule 31.10(h)(2).
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    The Exchange believes that the current definition of ``independent 
director'' meets the criteria listed for determining independence 
requirements under the New Rule. The requirements that a director is 
not considered ``independent'' if he or a family member has accepted 
any payments from the company or any parent or subsidiary of the 
company in excess of $60,000 during the current or any of the past 
three fiscal years, other than compensation for board or committee 
service, payments arising solely from investments in the company's 
securities, compensation paid to a family member who is a non-executive 
employee of the company or a parent or subsidiary of the company, 
benefits under a tax-qualified retirement plan, or non-discretionary 
compensation, or loans permitted under Exchange Act Section 13(k) 
demonstrates that the definition of ``independent'' considers the 
sources of compensation of a member of the compensation committee.

[[Page 62560]]

    The Exchange believes that the current definition of ``independent 
director'' meets the requirement in the New Rule that the Exchange's 
rules must consider whether the director is affiliated with the issuer 
or a subsidiary or affiliate of a subsidiary of the issuer. For 
purposes of the New Rule, an ``affiliate'' of, or a person 
``affiliated'' with, a specified person, is a person that directly, or 
indirectly through one or more intermediaries, controls, or is 
controlled by, or is under common control with, the person 
specified.\8\ Rule 31.10(h)(2) states that a director is not 
``independent'' if, in the opinion of the issuer's board of directors, 
the person has a relationship which would interfere with the exercise 
of independent judgment in carrying out the responsibilities of a 
director. Any kind of affiliate relationship, under the definition 
provided above, could be viewed as a conflict of interest that might 
interfere with the exercise of independent judgment in carrying out the 
responsibilities of a director. Therefore, by nature, a board of 
directors would have to consider any affiliate relationship in coming 
to that manner of opinion. As such, a rule that requires a board of 
directors to consider whether a director has a relationship which would 
interfere with the exercise of independent judgment in carrying out the 
responsibilities of a director in order to determine whether or not the 
director is ``independent'' naturally requires consideration of whether 
the director is affiliated with the issuer, a subsidiary of the issuer 
or an affiliate of a subsidiary of the issuer.
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    \8\ 17 CFR 240.12b-2. The term ``control'' (including the terms 
``controlling,'' ``controlled by'' and ``under common control 
with'') means the possession, direct or indirect, of the power to 
direct or cause the direction of the management and policies of a 
person, whether through the ownership of voting securities, by 
contract, or otherwise. 17 CFR 240.12b-2.
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    The New Rule states that any exchange to which the New Rule applies 
must provide issuers an opportunity to cure any violations of the rules 
that such exchange may put in place as a result of the New Rule.\9\ The 
New Rule further states that an exchange's rule regarding the curing of 
violations may state that if a member of a compensation committee 
ceases to be an ``independent director'' for reasons outside of that 
member's reasonable control, that person, with notice by the issuer to 
the applicable exchange, may remain a compensation committee member 
until the earlier of the next annual shareholders meeting of the issuer 
or one year from the occurrence of the event that caused the member to 
no longer be an ``independent director''. As such, the Exchange 
proposes to adopt this language and state that if a member of a 
compensation committee ceases to be an ``independent director'' for 
reasons outside of that member's reasonable control, that person may 
remain a compensation committee member until the earlier of the next 
annual shareholders meeting of the issuer or one year from the 
occurrence of the event that caused the member to no longer be an 
``independent director''. The Exchange will require that an issuer 
relying on this provision must provide notice to the Exchange 
immediately upon learning of the event or circumstance that caused the 
member to cease to be an ``independent director''.
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    \9\ 17 CFR 240.10C-1(a)(3).
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    Rule 31.10(c) currently provides an exception to the independence 
requirement for compensation committee members. This exception states 
that, notwithstanding said independence requirements, if the 
compensation committee is comprised of at least three members, one 
director, who is not independent as defined in Rule 31.10(h)(2) and is 
not a current officer or employee or a family member of an officer or 
employee, may be appointed to the compensation committee if the board, 
under exceptional and limited circumstances, determines that such 
individual's membership on the committee is required by the best 
interests of the company and its shareholders, and the board discloses, 
in the proxy statement for the next annual meeting subsequent to such 
determination (or, if the issuer does not file a proxy, in its Form 10-
K or 20-F), the nature of the relationship and the reasons for the 
determination. A member appointed under this exception may not serve 
longer than two years.\10\ However, the New Rule includes no such 
exception to the independence requirements. The Exchange therefore 
proposes to delete this exception. The Exchange believes that 
independence of compensation committee members is important to ensure 
that there exist no undue influences in the compensation of executive 
officers. Further, in these times during which executive compensation 
has (understandably) fallen under some scrutiny, it is important to 
provide the appearance of a transparent and not-unduly-influenced 
process to determine executive compensation, and an exception that 
allows issuers to have non-independent directors influence compensation 
can have a damaging impact on the markets.
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    \10\ See CBOE Rule 31.10(c)(3).
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    Currently, Rule 31.10(c) states that the chief executive officer of 
an issuer may not be present during voting or deliberations regarding 
his salary. CBOE proposes to extend this clause to all executive 
officers and state that the executive officer for whom compensation is 
being determined may not be present during voting or deliberations 
regarding compensation of that executive officer. The Exchange believes 
that this extension is appropriate and will further prevent any 
executive officer for whom compensation is being determined from having 
undue or inappropriate influence on his compensation.
    The New Rule exempts from the independence requirements limited 
partnerships, companies in bankruptcy proceedings, open-end management 
investment companies registered under the Investment Company Act of 
1940, and any foreign private issuer that discloses in its annual 
report the reasons that the foreign private issuer does not have an 
independent compensation committee.\11\ The Exchange thereby proposes 
to incorporate those exemptions into proposed Rule 31.10(f)(6) by 
reference by stating that the categories of issuers listed in Sec.  
240.10C-1(b)(1)(iii)(A) of the Securities Exchange Act of 1934 [sic] 
are also exempt from the requirements Rule 31.10(c)(2) (which discusses 
independence of directors on an issuer's compensation committee). These 
categories of issuers are still subject to all other requirements 
regarding executive compensation (unless otherwise noted).
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    \11\ 17 CFR 240.10C-1(b)(1)(iii).
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    Rule 31.10(f) currently exempts a number of other categories of 
issuers from the executive compensation requirements of Rule 31.10(c). 
These types of issuers are controlled companies, registered management 
investment companies (which are similar to open-end management 
investment companies), and asset-backed issuers and other passive 
issuers, cooperatives.\12\ The Exchange determined to exempt these 
categories of issuers from executive compensation requirements of Rule 
31.10(c) due to their various unique attributes.\13\ While the New Rule 
changes some of the executive compensation requirements, The Exchange 
believes that these categories of issues [sic] should still be

[[Page 62561]]

exempt from all executive compensation requirements in Rule 31.10(c) 
generally. To the extent that the above-referenced proposed Rule 
31.10(f)(6)'s exemption of open-end management investment companies 
registered under the Investment Company Act of 1940 from the 
compensation committee director independence requirements of Rule 
31.10(c)(2) conflicts with the more general already-existing exemption 
of registered management investment companies from the requirements of 
Rule 31.10(c), the more general exemption of registered management 
investment companies from the requirements of Rule 31.10(c) shall be 
controlling. As such, Rule 31.10(f)(2) shall be amended to state that 
the exemption of management investment companies from the requirements 
of Rule 31.10(c) shall be controlling over any other potentially-
conflicting exemptions that may arise under Rule 31.10(f)(6).
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    \12\ See CBOE Rule 31.10(f)(1)-(4).
    \13\ See Securities Exchange Act Release No. 49995 (July 9, 
2004), 69 FR 42476 (July 15, 2004) (SR-CBOE-2004-028).
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    The New Rule also discusses the retention of compensation 
consultants, independent legal counsel and other compensation advisers 
to assist the compensation committee of an issuer in determining 
compensation for executives.\14\ Rule 31.10 currently does not speak to 
this issue. Therefore, the Exchange proposes to adopt the provisions of 
the New Rule regarding this issue in a substantively identical manner 
to that in the New Rule in new Interpretation and Policy .11 to Rule 
31.10. This new Interpretation and Policy would state that the 
compensation committee of an issuer, in its capacity as a committee of 
the board of directors, may, in its sole discretion, retain or obtain 
the advice of a compensation consultant, independent legal counsel or 
other adviser. The compensation committee shall be directly responsible 
for the appointment, compensation and oversight of the work of any 
compensation consultant, independent legal counsel and other adviser 
retained by the compensation committee. Nothing in this Interpretation 
and Policy .11 to Rule 31.10 shall be construed to require the 
compensation committee to implement or act consistently with the advice 
or recommendations of the compensation consultant, independent legal 
counsel or other adviser to the compensation committee, or to affect 
the ability or obligation of a compensation committee to exercise its 
own judgment in fulfillment of the duties of the compensation 
committee.
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    \14\ 17 CFR 240.10C-1(b)(2).
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    Under this new Interpretation and Policy .11 to Rule 31.10, each 
listed issuer must provide for appropriate funding, as determined by 
the compensation committee, in its capacity as a committee of the board 
of directors, for payment of reasonable compensation to a compensation 
consultant, independent legal counsel or any other adviser retained by 
the compensation committee.
    Under this new Interpretation and Policy .11 to Rule 31.10, the 
compensation committee of a listed issuer may select a compensation 
consultant, legal counsel or other adviser to the compensation 
committee only after taking into consideration the following factors: 
(1) The provision of other services to the issuer by the person that 
employs the compensation consultant, legal counsel or other adviser, 
(2) the amount of fees received from the issuer by the person that 
employs the compensation consultant, legal counsel or other adviser, as 
a percentage of the total revenue of the person that employs the 
compensation consultant, legal counsel or other adviser, (3) the 
policies and procedures of the person that employs the compensation 
consultant, legal counsel or other adviser that are designed to prevent 
conflicts of interest, (4) any business or personal relationship of the 
compensation consultant, legal counsel or other adviser with a member 
of the compensation committee, (5) any stock of the issuer owned by the 
compensation consultant, legal counsel or other adviser, and (6) any 
business or personal relationship of the compensation consultant, legal 
counsel, other adviser or the person employing the adviser with an 
executive office of the issuer. A compensation committee must consider 
these factors with respect to any compensation consultant, legal 
counsel or other advisor that provides advice to the compensation 
committee (other than in-house legal counsel).
    The requirements of this Interpretation and Policy .11 to Rule 
31.10 shall not apply to (1) any controlled company or to any smaller 
reporting company, (2) the listing of a security futures product 
cleared by a clearing agency that is registered pursuant to section 17A 
of the Act (15 U.S.C. 78q-1) or that is exempt from the registration 
requirements of section 17A(b)(7)(A) (15 U.S.C. 78q-1(b)(7)(A)), or (3) 
the listing of a standardized option, as defined in Sec.  240.9b-
1(a)(4), issued by a clearing agency that is registered pursuant to 
section 17A of the Act (15 U.S.C. 78q-1). These exemptions comply with 
those stated in the New Rule.\15\ To be clear, small reporting 
companies are still subject to other corporate governance rules, as 
applicable
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    \15\ 17 CFR 240.10C-1(b)(5).
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Act \16\ and the rules and regulations thereunder and, in 
particular, the requirements of Section 6(b) of the Act.\17\ 
Specifically, the Exchange believes the proposed rule change is 
consistent with the Section 6(b)(5) \18\ requirements that the rules of 
an exchange be designed to promote just and equitable principles of 
trade, to prevent fraudulent and manipulative acts, to remove 
impediments to and to perfect the mechanism for a free and open market 
and a national market system, and, in general, to protect investors and 
the public interest. The proposed changes will protect investors by 
ensuring independent and well-informed determination of executive 
compensation. In addition, the Exchange believes that the proposed 
changes bring the Exchange into compliance with the requirements 
described in the New Rule.
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    \16\ 15 U.S.C. 78s(b)(1).
    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
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    The Exchange further believes that the proposed changes are 
consistent with the New Rule. Further, these proposed changes, in 
ensuring independent determination of executive compensation, will also 
improve investor confidence regarding executive compensation. This 
improved investor confidence will perfect the mechanism for a free and 
open market and a national market system.

B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    The Exchange neither solicited nor received comments on the 
proposed rule change.

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

    Within 45 days of the date of publication of this notice in the 
Federal

[[Page 62562]]

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-CBOE-2012-094 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-CBOE-2012-094. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room on official business 
days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such 
filing also will be available for inspection and copying at the 
principal offices of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-CBOE-2012-094, and should be submitted on or before 
November 5, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-25283 Filed 10-12-12; 8:45 am]
BILLING CODE 8011-01-P


