Self-Regulatory Organizations; Order Approving Proposed Rule Change and Notice of Filing and Order Granting Accelerated Approval to Amendment No. 2 to the Proposed Rule Change by the International Securities Exchange, Inc., Relating to Proposed Amendments to Its Certificate of Incorporation and Constitution and ISE Rule 303, 3233-3242 [E5-198]
Download as PDF
<![CDATA[
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–51029; File No. SR–ISE–
2004–29)]
Self-Regulatory Organizations; Order
Approving Proposed Rule Change and
Notice of Filing and Order Granting
Accelerated Approval to Amendment
No. 2 to the Proposed Rule Change by
the International Securities Exchange,
Inc., Relating to Proposed
Amendments to Its Certificate of
Incorporation and Constitution and ISE
Rule 303
January 12, 2005.
I. Introduction
On October 22, 2004, the International
Securities Exchange, Inc., (‘‘Exchange’’
or ‘‘ISE’’) filed with the Securities and
Exchange Commission (‘‘Commission’’),
pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 1
(‘‘Act’’), and Rule 19b–4 thereunder,2 a
proposed rule change to amend its
Certificate of Incorporation (‘‘Certificate
of Incorporation’’) and Constitution
(‘‘Constitution’’). The proposed rule
change was published for comment in
the Federal Register on November 12,
2004.3 On December 21, 2004, ISE filed
Amendment No. 1 to the proposal. On
December 22, 2004, ISE withdrew
Amendment No. 1 and filed
Amendment No. 2 to the proposal.4 No
comment letters were received on the
1 15
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See Securities Exchange Act Release No. 50641
(November 5, 2004), 69 FR 65481.
4 In Amendment No. 2, ISE made typographical
corrections to the proposed Amended and Restated
Certificate of Incorporation (the ‘‘Amended
Certificate’’) and proposed Amended and Restated
Constitution (‘‘Amended Constitution’’), previously
filed as part of the proposal, and revised Section 2
of its Form 19b–4 (Procedures of the Self-Regulatory
Organization) to reflect actions by the ISE Board
and ISE’s stockholders approving the final forms of
the Amended Certificate and Amended
Constitution. In Amendment No. 2, ISE also
proposed changes to ISE Rule 303(b) to incorporate
the 20% limit on the number of trading rights
associated with ISE’s Series B–1 and Series B–2
Common Stock that may be exercised by a Member
of ISE that currently is imposed by Section 14(b) of
the Constitution, and amended related portions of
its Form 19b–4. Exhibit 5 to Amendment No. 2,
which sets forth the text of the Amended
Certificate, the Amended Constitution and Rule
303, as proposed to be amended, is available on the
Commission’s Web site (https://www.sec.gov/rules/
sro.shtml), at the Commission and at ISE. The
complete text of Amendment No. 2 is available at
the Commission and the ISE.
At the request of the ISE, the Commission staff
corrected the description of certain typographical
corrections to the amended rule text provided in
Amendment No. 2. Telephone conversation
between Katherine Simmons, Vice President and
Assistant Secretary, ISE and Jennifer C. Dodd,
Attorney, Division of Market Regulation,
Commission on January 4, 2005.
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
proposed rule change. This order
approves the proposed rule change, as
amended.5
II. Description of Proposed Rule Change
The purpose of the proposed rule
change is to amend ISE’s Certificate of
Incorporation and Constitution (also
serving as the Exchange’s bylaws), as
well as ISE Rule 303, in connection with
ISE’s contemplated initial public
offering (‘‘IPO’’) of its Class A common
stock, par value $.01 per share (the
‘‘Class A Common Stock’’), of the
Exchange.6 The Exchange represents
that the proposed rule change, if
approved, would become effective
concurrently with the IPO.7
Following the IPO, the Exchange will
continue to operate as a registered
‘‘national securities exchange’’ under
Section 6 of the Act,8 and will maintain
its current regulatory authority over its
members. All persons using the
Exchange will continue to be subject to
the Exchange’s rules. The Exchange also
will continue to interpret its rules to
require that any revenues it receives
from regulatory fees or regulatory
penalties will be segregated and applied
to fund the legal, regulatory and
surveillance operations of the Exchange
and will not be used to pay dividends
to the holders of Class A Common
Stock.9 Certain of the proposed changes
to the Certificate of Incorporation and
Constitution, as well as the proposed
changes to ISE Rule 303, are intended to
ensure that the IPO of the Exchange will
not unduly interfere with or restrict the
ability of the Exchange or the
Commission to effectively carry out
their respective regulatory oversight
responsibilities under the Act and
generally to enable the Exchange to
operate in a manner that complies with
the federal securities laws, including
furthering the objectives of Section
5 The proposed rule change includes the
Amended Certificate, Amended Constitution (also
serving as the ‘‘Exchanges Bylaws’’), and proposed
amendments to Rule 303.
6 Separately, the Exchange also is contemplating
a reorganization into a holding company structure,
the completion of which is contingent upon receipt
of a favorable tax ruling from the Internal Revenue
Service and Commission approval. The Exchange
will separately file a proposed rule change seeking
Commission approval of that reorganization. The
Exchange currently anticipates that the
reorganization will occur sometime following the
IPO.
7 In connection with the proposed IPO, the
Exchange filed a registration statement on Form S–
1 with the Commission on July 2, 2004 (File No.
333–117145); as amended from time to time (the
‘‘Registration Statement’’).
8 15 U.S.C. 78f.
9 The Exchange adopted this interpretation in
connection with its demutualization in 2002. See
Securities Exchange Act Release No. 45803 (April
23, 2002), 67 FR 21306 (April 30, 2002).
PO 00000
Frm 00052
Fmt 4703
Sfmt 4703
3233
6(b)(5) of the Act.10 ISE also represents
that some of the proposed changes to
the Certificate of Incorporation and
Constitution are intended to facilitate
the IPO or otherwise relate to the
Exchange’s status as a public company
following its IPO.
A. Current Capital Stock and Board
Structure of ISE 11
The Exchange currently has two
classes of common stock, Class A
Common Stock and Class B common
stock, par value $.01 per share (‘‘Class
B Common Stock’’).12 The Class A
Common Stock has the traditional
features of common stock, including
voting, dividend and liquidation
rights.13 Subject to certain limitations,
holders of Class A Common Stock are
entitled to vote on all matters submitted
to stockholders for a vote.14
The Exchange has three series of Class
B Common Stock, each series
representing certain trading rights and
privileges and limited voting rights.
Ownership of the Class B Common
Stock, Series B–1 (‘‘Series B–1 Common
Stock’’), is a predicate to obtaining the
trading rights and privileges associated
with a Primary Market Maker.15
Ownership of the Class B Common
Stock, Series B–2 (‘‘Series B–2 Common
Stock’’), is a predicate to obtaining the
trading rights and privileges associated
10 15
U.S.C. 78f(b)(5).
a discussion of the Exchange’s current
capital board structure, see Securities Exchange Act
Release No. 45803, supra note 9.
12 The Exchange represents that some owners of
shares of Class A Common Stock also own shares
of Class B Common Stock. For a list of principal
stockholders and their ownership of Class A and
Class B Common Stock, see the Registration
Statement, ‘‘Principal and Selling Stockholders.’’
13 The Amended Certificate will clarify that, as is
currently the case, holders of shares of Class A
Common Stock are entitled to all residual interests
in the event of a liquidation, winding up or
dissolution of the Exchange after payment of or
provision for the obligations of the Exchange, any
preferential amounts payable to holders of shares of
preferred stock and amounts payable to the holders
of any outstanding shares of Class B Common
Stock.
14 For the provisions relating to the Class A
Common Stock, see Certificate of Incorporation,
Article Fourth, Subdivision II(a). The holders of
shares of Class A Common Stock are not entitled
to vote with respect to the Core Rights (as defined
in note 19, infra), the definition of ‘‘Core Rights,’’
or the election of Industry Directors (as defined
herein, see infra note 22 and accompanying text).
15 ‘‘Primary Market Makers’’ are market makers
with significant responsibilities, including
overseeing the opening of trading in their assigned
options classes, providing continuous quotations in
all of their assigned options classes, and handling
customer orders that are not automatically
executed. See Chapter 8 of the ISE Rules and the
Registration Statement, ‘‘Business,’’ for a discussion
of the role of Primary Market Makers on the
Exchange.
11 For
E:\FR\FM\21JAN1.SGM
21JAN1
3234
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
with a Competitive Market Maker.16
Ownership of the Class B Common
Stock, Series B–3 (the ‘‘Series B–3
Common Stock’’), is a predicate to
obtaining the trading rights and
privileges associated with an Electronic
Access Member.17
The holders of the Class B Common
Stock are not entitled to receive
dividends; rather, the holders of such
stock are only entitled to receive an
amount equal to the par value of each
share of Class B Common Stock (i.e.,
$.01) held upon the liquidation,
dissolution or winding up of the
Exchange.18 Also, such holders are
entitled to vote on the election of
directors representing the applicable
series of Class B Common Stock, with
each series of Class B Common Stock
being entitled to elect two directors to
the Board of Directors of ISE (the ‘‘ISE
Board’’).
The owners of Series B–1 Common
Stock and Series B–2 Common Stock
also are entitled to vote on any change
in, or amendment or modification to,
the ‘‘Core Rights’’ 19 or the definition of
Core Rights. In such a case, the
Exchange must obtain the approval of
the holders of a majority of both the of
Series B–1 Common Stock and the
Series B–2 Common Stock, each voting
as a separate class with respect to such
action.20
16 ‘‘Competitive Market Makers’’ are market
makers that add depth and liquidity to the market
and are required to provide continuous quotations
in at least 60% of the options classes in their
assigned group. See Chapter 8 of the ISE Rules and
the Registration Statement, ‘‘Business,’’ for a
discussion of the role of Competitive Market Makers
on the Exchange.
17 ‘‘Electronic Access Members’’ are brokerdealers that represent agency and proprietary orders
on the Exchange, and cannot enter quotations or
otherwise engage in market making activities on the
Exchange. See Chapter 8 of the ISE Rules and the
Registration Statement, ‘‘Business,’’ for a discussion
of the role of Electronic Access Members on the
Exchange.
18 The Amended Certificate will clarify that, as is
currently the case, such amount will be paid before
any proceeds from the liquidation, dissolution or
winding up of the Exchange are paid to the holders
of Class A Common Stock.
19 ‘‘Core Rights’’ as defined in Article Fourth,
Subdivision II(a)(i) of the Certificate of
Incorporation means any ‘‘increase in the number
of authorized shares of the Series B–1 Stock or the
Series B–2 Stock.’’
20 For the provisions relating to the Class B
Common Stock, see Certificate of Incorporation,
Article Fourth, Subdivision II(b). The Amended
Certificate proposes to make certain technical
amendments to clarify that, as is currently the case,
neither the holders of Class A Common Stock nor
the holders of Series B–3 Common Stock are
entitled to vote on the Core Rights.
Additionally, the vote required with respect to
the Core Rights would be increased from a majority
of the votes cast by each of the holders of the Series
B–1 Stock and Series B–2 Stock to a majority of the
then outstanding shares of each of the Series B–1
Stock and Series B–2 Stock. See Amended
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
The ISE Board consists of 15
members, eight of whom are elected by
the holders of the Class A Common
stock (the ‘‘Non-Industry Directors’’),21
six of whom are elected by the holders
of the Class B Common Stock (the
‘‘Industry Directors’’) 22 and the Chief
Executive Officer of the Exchange. In
accordance with the current Certificate
of Incorporation and Constitution of the
Exchange, each director, other than the
Chief Executive Officer, holds office for
a term of two years.23 The Chief
Executive Officer holds office for a term
of one year, or such earlier time as such
person no longer serves as Chief
Executive Officer. The directors, other
than the Chief Executive Officer, are
divided into two classes, designated as
Class I and Class II directors.24 At each
annual meeting of stockholders, the
successors of the class of directors
whose term expires at that meeting will
be elected to hold office for a term
Certificate, Article Fourth, Subdivision II(a) and (b).
As is now the case, any increase or decrease in the
overall number of authorized shares of Class B
Common Stock would require approval of the
holders of a majority of the outstanding shares of
Class A Common Stock, voting as a separate class,
and the holders of a majority of the outstanding
shares of Series B–1 Stock and Series B–2 Stock,
voting together as a separate class; any decrease in
the number of authorized shares of Series B–1 Stock
or Series B–2 Stock would require approval of the
holders of a majority of the outstanding shares of
Class A Common Stock; and any increase or
decrease in the number of authorized shares of
Series B–3 Stock would require approval of the
holders of a majority of the outstanding shares of
Class A Common Stock. The Exchange also may
issue preferred stock in the future, the terms of
which would be determined by the ISE Board,
subject to Commission approval. See Certificate of
Incorporation, Article Fourth, Subdivision I.
21 Nominees for election to the ISE Board to serve
as Non-Industry Directors are currently made by the
Exchange’s Corporate Governance Committee, on
which all of the Non-Industry Directors serve.
Stockholders also may nominate Non-Industry
Director candidates for election to the ISE Board by
petition. See Section 3.10 of the Constitution.
22 Nominees for election to the ISE Board to serve
as Industry Directors are currently made by the
Exchange’s Nominating Committee, which is not a
committee of the ISE Board, and is comprised of
representatives of the holders of each series of Class
B Common Stock. Stockholders also may nominate
Industry Director candidates for election to the ISE
Board by petition. See Section 3.10 of the
Constitution.
23 The Amended Certificate would clarify that the
ISE Board is authorized to fill any vacancies on the
ISE Board. See Amended Certificate, Article Fourth,
Subdivision II(a)(i) and (b)(v)(A). The Amended
Certificate also would provide that directors may
only be removed for cause by the stockholders to
the extent permitted under applicable law, and not
by a vote of two-thirds of the directors as is
currently the case. See Amended Certificate, Article
Fifth, paragraph (b).
24 For a list of the Exchange’s current directors
and their respective classes, see Registration
Statement, ‘‘Management.’’ As currently and
prospectively constructed, each class will be
composed of half of the Non-Industry Directors and
half of each of the Series B–1, Series B–2 and Series
B–3 directors.
PO 00000
Frm 00053
Fmt 4703
Sfmt 4703
expiring at the annual meeting of
stockholders held in the second year
following the year of their election, and
until their successors are elected and
qualified. Directors, other than the Chief
Executive Officer, may not hold office
for more than three consecutive terms.25
In addition, the Exchange currently
has an Audit Committee (which is
proposed to be renamed as the Finance
& Audit Committee), a Corporate
Governance Committee and a
Compensation Committee, all of which
are governed by charters.26
B. Proposed Amendments to Certificate
of Incorporation and Constitution
The Exchange proposes to amend its
current Certificate of Incorporation and
Constitution to:
• Increase the number of authorized
shares of Class A Common Stock from
5,000,000 to 150,000,000;
• Remove the term limits of the NonIndustry Directors;
• Adopt certain limitations on the
ownership and voting of shares of Class
A Common Stock and of Class B
Common Stock;
• Require the Board to consider
applicable requirements of the Act in
managing the business and affairs of the
Exchange;
• Clarify that the Exchange has a
Corporate Governance Committee and
Compensation Committee, and that
these committees, as well as the Finance
& Audit Committee of the Exchange, are
governed by charters;
• Adopt certain anti-takeover
provisions, including with respect to the
nomination of Non-Industry Directors
by the holders of Class A Common
Stock; and
• Reduce the vote of the holders of
Class A Common Stock required to
amend certain provisions of the
Amended Constitution from two-thirds
of the outstanding shares of Class A
Common Stock to a majority of such
shares.27
25 For the provisions relating to the ISE Board, see
Certificate of Incorporation, Article Fifth and
Constitution, Section 3.2.
26 For a discussion of these committees and their
responsibilities, see Registration Statement,
‘‘Management.’’ The Exchange represents that the
ISE Board designated these committees pursuant to
its authority under Section 5.1 of the Constitution,
though the Corporate Governance and
Compensation Committees are not specifically
designated in the current Constitution itself.
27 The Exchange also would correct certain
typographical and grammatical errors, eliminate
outdated or irrelevant references and make certain
non-material changes to the Certificate of
Incorporation and Constitution. Such changes
include, among others, the flexibility to provide
notice of ISE Board meetings by several alternate
means (see Section 3.6 of the Amended
Constitution); the empowerment of the ISE Board
E:\FR\FM\21JAN1.SGM
21JAN1
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
The Exchange also proposes to amend
ISE Rule 303 to provide for certain
member trading concentration limits
with respect to shares of Class B
Common Stock currently provided for
in the Constitution, as discussed below.
1. Increase in Number of Authorized
Shares of Class A Common Stock of ISE
The Exchange proposes to increase
the number of authorized shares of ISE’s
Class A Common Stock in the Amended
Certificate from 5,000,000 to
150,000,000.28 The Exchange represents
that this increase will provide the ISE
Board with the flexibility to declare a
stock dividend that, in the opinion of
the underwriters of its IPO, will be
sufficient to result in an appropriate
market price per share of the Class A
Common Stock. The Exchange also
represents that the increase in the
number of authorized shares of Class A
Common Stock will provide shares: (1)
To be offered in ISE’s IPO, as well as
additional shares that can be used by
the Exchange for future acquisitions that
may be approved by the Board (and by
Class A stockholders to the extent
required by the rules of the marketplace
for the shares of Class A Common
Stock); and (2) to be used by ISE for
stock options, stock purchase and other
equity compensation plans that are
approved by the ISE Board (and by Class
A stockholders to the extent required by
the rules of the marketplace for the
shares of Class A Common Stock).
2. Change in the Term Limits of the ISE
Board
The Exchange represents that in order
to maintain continuity with respect to
its Non-Industry Directors during the
transition of the Exchange to a public
company, the Exchange proposes that
the three-term limit (a total of six years
of service) currently in the Certificate of
Incorporation and Constitution with
respect to all directors, other than the
Chief Executive Officer, would apply
only to Industry Directors.29 The
Exchange also represents that currently,
all of ISE’s Non-Industry Directors face
term limits that would result in a total
turn-over of such directors over a twoyear period. The Exchange believes that
removing term limits for Non-Industry
Directors will allow the ISE Board to
(instead of the Chief Executive Officer) to appoint
and remove officers (see Sections 4.2 and 4.3 of the
Amended Constitution); the consolidation of the
positions of Chief Executive Officer and President
(see Section 4.1 of the Amended Constitution); and
the prohibition on ownership of shares of Class B
Common Stock by officers of the Exchange (see
Section 4.5 of the Amended Constitution).
28 See Amended Certificate, Article Fourth.
29 See Amended Certificate, Article Fifth, and
Amended Constitution, Section 3.2.
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
continue to function with experienced
Non-Industry Directors, thereby
facilitating a smooth transition to a
public company structure. Once it
becomes a public company, the
Exchange represents that it will address
term limits for Non-Industry Directors
through amendments to its Corporate
Governance Principles.30
3. Ownership and Voting Limitations
With Respect to the Exchange’s Capital
Stock 31
a. Ownership Limitations. Under the
proposed Amended Certificate, no
‘‘Person’’ 32 either alone or together with
its ‘‘Related Persons’’ 33 would be
permitted to own, directly or indirectly,
of record or beneficially,34 shares of
30 Because the ISE Board believes it is important
that following the Exchange’s IPO there be a smooth
transition from the Non-Industry Directors serving
at the time of the IPO to their successors, the ISE
Board has adopted Corporate Governance Principles
providing that it may be appropriate for up to four
of the eight original Non-Industry Directors to serve
one additional term. This would result in a
transition to new Non-Industry Directors over a
four-year period, rather than a two-year period. The
ISE Corporate Governance Committee will
determine whether, and how, to provide for this
phased transition.
31 Currently, with the exception of certain
exemptions for Founders (as defined in the
Constitution), no holder of Class A Common Stock,
together with any affiliate (as defined in the
Constitution), shall vote or give any proxy in
relation to a vote with respect to any shares owned
in excess of 20 percent of the Class A Common
Stock, and no holder of Class B Common Stock,
together with any affiliate (as defined in the
Constitution) may own more than 20 percent of
Series B–1 Stock or Series B–2 Stock. In addition,
no Member (as defined in the Constitution),
together with any affiliate (as defined in the
Constitution), may be approved to exercise trading
rights associated with more than 20 percent of
Series B–1 Stock or Series B–2 Stock (the ‘‘member
trading concentration limit’’). Certificate of
Incorporation, Article Fourth, Subdivision II(a)(iv)
and Constitution, Article XIV. See also Securities
Exchange Act Release No. 45803, supra note 9. As
discussed herein, the Exchange proposes to amend
ISE Rule 303 to provide for the member
concentration limit that is currently provided for in
the Constitution.
32 ‘‘Person’’ as defined in Article Fourth,
Subdivision III of the Amended Certificate means
any ‘‘individual, partnership (general or limited),
joint stock company, corporation, limited liability
company, trust or unincorporated organization or
any governmental entity or agency or political
subdivision thereof.’’
33 ‘‘Related Person’’ as defined in Article Fourth,
Subdivision III of the Amended Certificate means
‘‘(1) with respect to any Person, all ‘affiliates’ and
‘associates’ of such Person (as such terms are
defined in Rule 12b–2 under the Act); (2) with
respect to any Person constituting a Member, any
broker or dealer with which such Member is
associated; and (3) any two or more Persons that
have any agreement, arrangement or understanding
(whether or not in writing) to act together for the
purpose of acquiring, voting, holding or disposing
of shares of the capital stock of the [Exchange].’’
34 Beneficial ownership (and derivative or similar
words) as defined in Article Fourth, Subdivision III
of the Amended Certificate, would have the
meaning set forth in Regulation 13D–G under the
PO 00000
Frm 00054
Fmt 4703
Sfmt 4703
3235
capital stock (whether common or
preferred stock) of the Exchange (1)
constituting more than 40 percent of the
then outstanding shares of any class or
series of capital stock (the ‘‘40 percent
ownership limitation’’); or (2)
constituting more than 20 percent of the
then outstanding shares of any class or
series of capital stock if such holder also
is a member of the Exchange (that is, a
Primary Market Maker, Competitive
Market Maker or Electronic Access
Member) (the ‘‘20 percent member
ownership limitation’’).35
Furthermore, pursuant to the
Amended Certificate, any Person, alone
or together with its Related Persons,
who owns more than five percent of the
then outstanding shares of any class or
series of the Exchange’s capital stock
will be required to provide certain
information to the Board and will have
an ongoing obligation to update such
information.36 The Exchange believes
these provisions will enable it to obtain
information necessary to determine
whether there has been a violation of
the voting or ownership limitations
described herein.
The Exchange represents that it would
apply standard corrective procedures
used by public companies with similar
Act. The Exchange believes that use of this existing
Commission definition will aid it in verifying the
ownership of its capital stock by monitoring filings
on Schedules 13D and 13G by its stockholders.
35 See Amended Certificate, Article Fourth,
Subdivisions III(a)(i) and (a)(ii).
36 Article Fourth, Subdivision III(a)(iii) of the
Amended Certificate requires that any Person,
either alone or together with its Related Persons,
that at any time owns 5 percent or more of the then
outstanding shares of any class or series of capital
stock of ISE, that has the right by its terms to vote
in the election of members of the ISE Board, must,
immediately upon so owning 5 percent or more,
give the ISE Board written notice of such ownership
stating: (1) Such Person’s full legal name; (2) such
Person’s title or status and the date on which such
title or status was acquired; (3) such Person’s
approximate ownership interest in the Exchange;
and (4) whether such Person has the power, directly
or indirectly, to direct the management or policies
of the Exchange, whether through ownership of
securities, by contract or otherwise. Each such
Person must notify the ISE Board of any changes in
ownership except when such change is an increase
or decrease of less than 1 percent in the ownership
percentage so reported (such increase or decrease to
be measured cumulatively from the amount shown
on the last such report) unless any increase or
decrease of less than 1 percent results in such
Person so owning more or less than 20 percent or
more than 40 percent of the shares of any class or
series of capital stock then outstanding (at a time
when such Person so owned less than such
percentages), as the case may be. The Exchange
represents that it also will consider, among other
things, any filings made with the Commission
under Section 13(d) and Section 13(g) of the Act by
such Person and its Related Persons and will
aggregate all shares owned or voted by such Person
and its Related Persons deemed to be beneficially
owned by them. For information on ISE’s current
principal stockholders, see also the Registration
Statement, ‘‘Principal and Selling Stockholders.’’
E:\FR\FM\21JAN1.SGM
21JAN1
3236
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
ownership limits if any Person, alone or
together with its Related Persons,
purports to sell, transfer, assign or
pledge any shares of capital stock in the
Exchange in violation of the ownership
limits. Specifically, pursuant to the
Amended Certificate, any such sale,
transfer, assignment or pledge would be
void, and that number of shares in
excess of the ownership limitation
would be deemed to have been
transferred to the Exchange, as special
trustee of a charitable trust, for the
exclusive benefit of a charitable
beneficiary to be determined by the
Exchange.37 These corrective
procedures also would apply if there is
any other event causing any holder of
capital stock to exceed the ownership
limits, such as a repurchase of shares by
the Exchange.38 The automatic transfer
would be deemed to be effective as of
the close of business on the business
day prior to the date of the violative
transfer or other event.
The special trustee of the trust would
be required to sell the excess shares to
a person whose ownership of shares is
not expected to violate the ownership
limitations, subject to the right of the
Exchange to repurchase those shares.39
The net proceeds of the sale would be
distributed first to the original
prohibited transferee or holder, who
would receive the lesser of (1) the price
per share received by the Exchange from
the transfer of the excess shares, (2) the
price per share the prohibited transferee
or holder paid for the shares in the
violative transfer, or (3) if the prohibited
transferee or holder did not give value
for such excess shares, a price per share
equal to the market price for the excess
shares on the date of the purported
transfer or other event that resulted in
the excess shares, except that in the case
of a prohibited holder holding excess
shares solely as the result of an action
or event by the Exchange (such as an
action resulting in a reduction in the
number of outstanding shares), such
prohibited holder would receive the
greater of (1) or (3) above for the excess
shares. After such distribution, any
proceeds in excess of the amount
payable to the prohibited transferee or
holder would be payable to the
charitable beneficiary. Prior to the sale,
the special trustee would be entitled to
37 See Article Fourth, Subdivision III(c) of the
Amended Certificate. The Exchange may also
determine to appoint as special trustee an entity
unaffiliated with the Exchange and any Person or
its Related Persons owning excess shares. See
Article Fourth, Subdivision III(c)(ii) of the
Amended Certificate.
38 Any holders owning excess shares as a result
of any event other than a sale, transfer, assignment
or pledge would cease to have rights in such shares.
39 See infra note 41 and accompanying text.
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
receive, in trust for the beneficiary, all
dividends and other distributions paid
by the Exchange with respect to the
excess shares, and also would be
entitled to exercise all voting rights with
respect to the excess shares.40
In addition, excess shares (including
any shares deemed to be excess shares
by reason of a reduction in outstanding
shares caused by a purchase of excess
shares by the Exchange) would be
deemed to have been offered for sale to
the Exchange.41 The Exchange shall
have the right to accept such offer until
the special trustee has sold the shares
held in the charitable trust.42 If the
Exchange accepts such offer, it would
determine the additional number of
shares (if any) that become excess shares
by reason of the reduction in
outstanding shares caused by the
Exchange’s purchase of excess shares
(whether any Person, either alone or
together with its Related Persons, holds
such excess shares in connection with a
purported transfer or is deemed to hold
such excess shares as a result of the
Exchange’s purchase of excess shares)
and take all action reasonably necessary
to ensure that such additional excess
shares are added to the initial number
of excess shares subject to the
Exchange’s corrective procedures.43
40 Any excess shares held by the special trustee
would be entitled to be voted by the special trustee
and would be deemed outstanding for purposes of
determining a quorum or minimum vote required
for the transaction of any business at any
stockholders’ meeting. See Article Fourth,
Subdivision III(c)(v) of the Amended Certificate.
41 The excess shares would be deemed to be
offered to the Exchange at a price per share equal
to the lesser of (1) the price per share the purported
transferee or holder paid for the shares in the
purported transfer or other event that resulted in
excess shares (or in the case of an event not
involving any payment, the market price at the time
of the transfer or other event) and (2) the market
price of the shares on the date the Exchange accepts
such offer. The Exchange may accept the offer in
whole or in part.
42 See Article Fourth, Subdivision III(c)(vi) of the
Amended Certificate.
43 The Exchange believes that this mechanism
will prevent repeated violations (i.e., an endless
loop) of the ownership provisions in connection
with repurchases by the Exchange (both generally
and with respect to excess shares). In practice, the
Exchange represents that it would structure
repurchases, if any, in a manner designed not to
trigger any new violations of the ownership
restrictions set forth in Article Fourth, Subdivision
III, or if triggered, to include such new violations
in its repurchase. For example, if there were 100
shares of Class A Common Stock outstanding and
two members of the Exchange (Member A and
Member B) each currently owned 20% of the
outstanding shares of Class A Common Stock, and
Member A purchased 5 shares of Class A Common
Stock (increasing his ownership to 25%), the
Exchange could either (a) repurchase the 5 shares
from Member A and permit the special trustee to
sell one share from Member A and one share from
Member B to third parties or (b) repurchase 9 shares
of Class A Common Stock from Member A and 3
shares of Class A Common Stock from Member B,
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
As applied to the current outstanding
capital stock of the Exchange, the 40
percent ownership limitation would
apply to any holder of Class A Common
Stock, other than an Exchange member.
The 20 percent member ownership
limitation would apply to any member,
and would limit to that amount such
holder’s ownership of each of the Class
A Common Stock and each Series of
Class B Common Stock. The Exchange
represents that currently no Person,
either alone or together with its Related
Persons, owns more than 40 percent of
the outstanding shares of Class A
Common Stock, and no member, either
alone or together with its Related
Persons, owns more than 20 percent of
the outstanding shares of Class A
Common Stock or any series of Class B
Common Stock.44
b. Voting Limitations. The proposed
rule change would prohibit any Person,
either alone or together with its Related
Persons, from voting, or causing the
voting of, shares of capital stock of the
Exchange (or giving a consent or proxy
with respect to shares) representing
more than 20 percent of the voting
power of any class or series of capital
stock (the ‘‘20 percent voting
limitation’’).45 In the event that a
stockholder purports to vote, grant any
proxy or enter into any other agreement
for the voting of shares that would
violate the 20 percent voting limitation,
such vote, proxy or agreement would
not be honored by the Exchange to the
extent that the 20 percent voting
limitation provision would be violated.
The 20 percent voting limitation would
not apply to any solicitation of any
revocable proxy from any stockholder of
the Exchange by the Exchange or by any
all of which would be deemed excess shares
pursuant to the mechanism described above.
44 See Amendment No. 2, supra note 4.
45 The 20 percent voting limitation also would
prohibit any Person, either alone or together with
its Related Persons, from entering into any
agreement, plan or other arrangement with another
Person that would result in the shares of any class
or series of capital stock that are subject to such
agreement, plan or arrangement not being voted on
any matter or matters where the effect of such
agreement, plan or other arrangement would be to
enable any Person to vote, possess the right to vote
or cause the voting of shares of any class or series
of capital stock that would, as a result thereof,
represent more than 20 percent of any class or
series of capital stock available to be voted.
The Amended Certificate and the Amended
Constitution clarify that only those shares entitled
to vote would be counted for purposes of
determining a quorum or a minimum vote required
for the transaction of any business at any
stockholders’ meeting, including, without
limitation, when specified business is to be voted
on by a class or a series voting as a class. See Article
Fourth, Subdivision III(b)(iii) of the Amended
Certificate and Section 2.4 of the Amended
Constitution. See also Amendment No. 2, supra
note 4.
E:\FR\FM\21JAN1.SGM
21JAN1
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
stockholder of the Exchange pursuant to
Regulation 14A under the Act.46
c. Board Notice Regarding Certain
Limitations. The proposed rule change
would impose certain requirements on
Persons to give notice of events
regarding ownership that would exceed
the proposed ownership or voting
threshold. Specifically, any Person
intending to exceed these ownership or
voting limitations must provide the ISE
Board with written notice of the fact at
least 45 days (or such shorter period to
which the Board expressly consents)
prior to either the proposed acquisition
of shares or the proposed exercise of
voting rights, as the case may be.47
d. Board Waiver of Certain
Limitations. The ISE Board may adopt a
resolution specifying that it has
determined that the 40 percent
ownership limitation or the 20 percent
voting limitation or both should be
waived if it finds that such waiver (1)
will not impair the ability of the
Exchange to carry out its functions and
responsibilities as an ‘‘exchange’’ under
the Act; (2) is otherwise in the best
interests of the Exchange and its
stockholders; (3) will not impair the
ability of the Commission to enforce the
Act; and (4) will apply to a Person and
its Related Persons who are not subject
to any applicable ‘‘statutory
disqualification’’ (within the meaning of
Section 3(a)(39) of the Act). In the event
of such a finding, the waiver would take
the form of an amendment to the
Constitution, which would not be
effective until approved by the
Commission. The Board may not waive
the 20 percent member ownership
limitation.48
e. Elimination of Founders
Exemption. The Amended Certificate
also eliminates the ‘‘founders
exemption’’ that permitted the original
founders of the Exchange to own shares
of Class A Common Stock and Class B
Common Stock in excess of the stated
limits for a certain period of time.49 The
Exchange represents that because all of
the founders have fallen below the
ownership thresholds in place, the
exemption is no longer necessary.
46 See Amended Certificate, Article Fourth,
Subdivision III(b).
47 See Amended Certificate, Article Fourth,
Subdivisions III(a)(i)(E) and (b)(i).
48 See Amended Certificate, Article Fourth,
Subdivisions III(a)(i)(B) and (b)(i).
49 The founders exemption, which applied to
persons or entities that purchased LLC
memberships directly from the Exchange on or
prior to August 1, 1998 and extended to May 26,
2010, was approved by the Commission in
connection with the Exchange’s demutualization in
2002. See supra note 9.
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
4. Exchange Act Obligations
The proposed rule change would
provide that the ISE Board shall, in
managing the affairs and business of the
Exchange, consider requirements
applicable to its registration and
operation as a national securities
exchange under the Act, including
without limitation, the requirements
that (a) the rules of the Exchange be
designed to protect investors and the
public interest, and (b) the Exchange be
so organized and have the capacity to
carry out the purposes of the Act and
(subject to such exceptions as are set
forth in the Act or the rules and
regulations thereunder) to enforce
compliance by its members and persons
associated with its members with the
provisions of the Act, the rules and
regulations thereunder, and the rules of
the Exchange. These provisions in the
Amended Certificate shall not be
construed to create the basis for any
cause of action against any director, and
no director shall be liable, by virtue of
these provisions, for such director’s
consideration or failure to consider the
matters referred to therein.50
5. Board Committees
The proposed rule change would
include provisions relating to specific
Board committees in connection with
the contemplated listing of the
Exchange on a national securities
exchange or national securities
association following its IPO. In
particular, the Exchange proposes to
add the Corporate Governance
Committee and the Compensation
Committee to its list of specifically
designated ISE Board committees in the
Amended Constitution, and require that
each of the Finance & Audit, Corporate
Governance and Compensation
Committees be governed by charters.51
6. Certain Anti-Takeover Provisions
The Exchange proposes that the
Amended Certificate and the Amended
Constitution include certain antitakeover provisions for protection
against certain types of coercive
corporate takeover practices and
inadequate takeover bids. The proposed
provisions relate to special meetings of
stockholders and the required
stockholder vote with respect to certain
actions. In view of the limitations on
ownership and voting described above,
Amended Certificate, Article Twelfth.
Amended Constitution, Sections 5.4, 5.5
and 5.6. The Exchange represents that it currently
has a Corporate Governance and Compensation
Committee, designated by the ISE Board pursuant
to its authority under Section 5.1 of the
Constitution; the Amended Constitution will
specifically provide for these committees.
PO 00000
50 See
51 See
Frm 00056
Fmt 4703
Sfmt 4703
3237
the provisions proposed do not include
a ‘‘poison pill’’ arrangement. The
Exchange represents that the ISE Board
does, however, maintain the authority
under its current organizational
documents to adopt such an
arrangement with Commission
approval.
a. Elimination of a Stockholder’s
Right to Call a Special Meeting. The
Exchange proposes to deny the
Exchange’s stockholders the right to call
a special meeting of stockholders, and
provide that only the Chairman of the
Board or a majority of the Board may
call a special meeting of the
stockholders.52
b. Advance Notice Requirement for
Stockholder Proposals. The Amended
Constitution establishes advance notice
procedures with regard to stockholder
proposals relating to the nomination of
candidates for election as Non-Industry
Directors or new business to be brought
before meetings of stockholders. The
Exchange’s advance notice requirement
would not apply to nominations of
Industry Director nominees for election
to the Board by the Exchange’s
Nominating Committee (which is not a
committee of the Board) or stockholders
pursuant to Sections 3.10(a) and 5.3(c)
of the Constitution.
Following the IPO, pursuant to the
Exchange’s Corporate Governance
Committee charter and Section 3.10(b)
of the Constitution, the Corporate
Governance Committee would nominate
for election to the Board a slate of NonIndustry Directors pursuant to Section
2.7(a) and (b).53 These procedures also
provide that notice of stockholder
nominations for election of NonIndustry Directors and stockholder
proposals must be given in writing to
the Secretary of the Exchange prior to
the meeting at which the action is to be
taken.54 Generally, such notice would
have to be received at the principal
executive offices of the Exchange not
fewer than 60 days nor more than 90
days prior to the meeting. Any such
notice must comply with certain
additional informational and descriptive
requirements set out in the Amended
52 See Amended Certificate, Article Eighth and
Amended Constitution, Section 2.2.
53 Class A stockholders also would be able to
nominate Non-Industry Directors pursuant to
Sections 2.7 and 3.10(b) of the Constitution.
54 With the institution of Section 2.7 of the
Amended Constitution, Non-Industry Director
nominations by Class A stockholders will likely be
required to be made in advance of the selection or
announcement of a slate of Non-Industry Director
candidates by the Corporate Governance
Committee. Currently, Non-Industry Director
nominations by Class A stockholders must be made
in advance of the stockholders’ meeting, but
generally after the Corporate Governance
Committee announces its slate.
E:\FR\FM\21JAN1.SGM
21JAN1
3238
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
Constitution.55 Additionally,
stockholders shall comply with all
applicable requirements of the Act and
the rules and regulations thereunder
with respect to any proposals submitted
pursuant to the advance notice
procedures.56
The requirement in Section 2.7(c) of
the Amended Constitution, which states
that only persons who are nominated in
accordance with the procedures set
forth in Section 2.7 shall be eligible to
serve as directors, will not apply to
nominations of Industry Director
nominees for election to the Board.
Such Industry Directors are, instead,
nominated by the Exchange’s
Nominating Committee (which is not a
committee of the Board) or stockholders
pursuant to Sections 3.10(a) and 5.3(c)
of the Constitution.
c. Increase in Required Vote for
Certain Stockholder Actions. In addition
to other currently required items,57 the
Amended Certificate would require a
two-thirds vote of stockholders to
amend, repeal or adopt any provisions
inconsistent with (1) the limitations on
ownership and voting of capital stock
contained in the Amended Certificate,
as described above in Section II.B.3, (2)
the provision in the Amended
Certificate providing the Board with the
authority to create and issue rights
55 In particular, the notice must set forth (1) as to
each person whom the stockholder proposes to
nominate for election or reelection as a director all
information relating to such person that is required
to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the
Act, including such person’s written consent to
being named in the proxy statement as a nominee
and to serving as a director if elected and a
statement that such nominee complies with the
requirements set forth in the Amended Certificate;
(2) as to any other business that the stockholder
proposes to bring before the meeting, a brief
description of the business desired to be brought
before the meeting, the reasons for conducting such
business at the meeting and any material interest in
such business of such stockholder and the
beneficial owner, if any, on whose behalf the
proposal is made; and (3) as to the stockholder
giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is
made (i) the name and address of such stockholder,
as they appear on the Corporation’s books, and of
such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned
beneficially and of record by such stockholder and
such beneficial owner. See Amended Constitution,
Section 2.7.
56 See Amended Constitution, Section 2.7.
Previously, Section 2.7 of the Constitution
addressed stockholder record dates; that matter will
now be addressed in Section 7.4 of the Amended
Constitution.
57 Pursuant to the Certificate of Incorporation,
Article Seventh (b), the affirmative vote of the
holders of at least two-thirds of the voting power
of the then outstanding shares of Class A Common
Stock shall be required to amend, repeal or adopt
Article Seventh of the Certificate of Incorporation
or Sections 2.2, 2.4, 2.5, 2.9, 3.2, 3.3, 3.5 or Article
XI of the Constitution.
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
under a rights plan, and (3) the advance
notice provision contained in the
proposed Amended Constitution as
described above in Section II.B.6.b.58
7. Reduction in Votes Required To
Approve Amendments to the Amended
Constitution
The Exchange proposes that the
current vote required to approve
amendments to the Constitution be
reduced from two-thirds of the voting
power of each class of capital stock of
ISE entitled to vote on such amendment
to a majority vote of the voting power
of each class or series of stock entitled
to vote, voting together as a single class,
in order to amend certain provisions of
the Amended Constitution that are not
subject to a required two-thirds vote
under the Amended Certificate.59 Such
amendments to the current Constitution
may be accomplished by a two-thirds
vote of the stockholders or by action of
the Board. The two-thirds vote
requirement for an amendment to the
current Constitution was deemed
appropriate for a private securities
exchange owned primarily by its
members, in order to assure substantial
agreement as to changes in significant
aspects of corporate governance.
However, the Exchange believes that the
continuation of such a high vote
requirement, in the context of a publicly
traded company with a widely diverse
stockholder base and the likelihood of
lower voting participation, makes it
unduly difficult to effect any necessary
changes by stockholder vote to these
corporate governance provisions in the
future.
8. Confidential Information and Books
and Records
Pursuant to the Amended Certificate,
all confidential information pertaining
to the self-regulatory function of the
Exchange (including but not limited to
disciplinary matters, trading data,
trading practices and audit information)
contained in the books and records of
the Exchange shall: (1) Not be made
available to any Persons other than to
those officers, directors, employees and
agents of the Exchange that have a
reasonable need to know the contents
thereof and to the Commission; and (2)
be retained in confidence by the
Exchange and the officers, directors,
employees and agents of the Exchange;
and (3) not be used for any commercial
purposes.60 In addition, the ISE’s books
Amended Certificate, Article Seventh.
Amended Certificate, Article Seventh and
Amended Constitution, Section 11.1.
60 See Amended Certificate, Article Thirteenth.
PO 00000
58 See
59 See
Frm 00057
Fmt 4703
Sfmt 4703
and records shall be maintained within
the United States.61
C. Amendment to ISE Rule 303
The Exchange proposes to amend ISE
Rule 303(b) to include the member
trading concentration limit currently
included in the Constitution. Currently,
pursuant to Section 14.1(b) of the
Constitution, no Member (as defined in
the Constitution), together with any
affiliate (as defined in the Constitution),
may be approved to exercise trading
rights associated with more than 20
percent of Series B–1 Stock or Series B–
2 Stock (the ‘‘member trading
concentration limit’’). Section 14.1(b)
also permits the Exchange to establish
further limitations relating to its
approval of a Member’s ability to effect
transaction on or through the facilities
of ISE. Article XIV of the Constitution,
including Section 14.1(b), is being
deleted from the Amended Constitution.
Rule 303 currently provides for a stricter
member trading concentration limit
than 20% but permits the ISE Board to
waive such member trading
concentration limit for good cause
shown.62 The Exchange proposes to
amend Rule 303(b) to include the
member trading concentration limit
currently provided for in Section 14.1(b)
and to state that the Board shall not
waive the Exchange’s member trading
concentration limit if such a waiver
would result in the applicant or
approved Member (as defined in the
Constitution) (together with any of its
affiliates) being approved to exercise the
trading privileges associated with more
than 20% of the outstanding Primary
Market Maker memberships (which
memberships are associated with the
shares of Series B–1 Stock as set forth
in Article XIII of the Amended
Certificate) or more than 20% of the
outstanding Competitive Market Maker
memberships (which memberships are
associated with the shares of Series B–
2 Stock as set forth in Article XIII of the
Amended Constitution). Rule 303(b), as
amended, will not permit the Exchange
to establish further limitations, as the
current Constitution does. ISE
represents that the amendment to Rule
303(b) will enable the Exchange and the
Commission to protect the integrity of
the Exchange’s and the Commission’s
regulatory oversight responsibilities in
much the same way as the proposed
ownership and voting limitations
discussed above will.63
61 See
Amended Constitution, Section 1.3.
infra Section IV.D for further discussion of
the current requirements of ISE Rule 303.
63 See Amendment No. 2, supra note 4.
62 See
E:\FR\FM\21JAN1.SGM
21JAN1
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
a national securities exchange.64 In
particular, the Commission finds that
Interested persons are invited to
the proposal is consistent with Section
submit written data, views, and
6(b)(1) of the Act,65 which requires a
arguments concerning Amendment No.
national securities exchange to be so
2, including whether this submission is
organized and have the capacity to be
consistent with the Act. Comments may able to carry out the purposes of the Act
be submitted by any of the following
and to enforce compliance by its
methods:
members and persons associated with
Electronic Comments
its members with the provisions of the
Act, the rules or regulations thereunder,
• Use the Commission’s Internet
and the rules of the Exchange. In
comment form (https://www.sec.gov/
addition, the Commission finds that the
rules/sro.shtml); or send an e-mail to
proposed rule change is consistent with
rule-comments@sec.gov. Please include
Section 6(b)(5) of the Act,66 which
File Number SR–ISE–2004–29 on the
requires, among other things, that the
subject line.
rules of an exchange be designed to
Paper Comments
promote just and equitable principles of
• Send paper comments in triplicate
trade; to facilitate transactions in
to Jonathan G. Katz, Secretary,
securities; to remove impediments to
Securities and Exchange Commission,
and perfect the mechanisms of a free
450 Fifth Street, NW., Washington, DC
and open market and a national market
20549–0609.
system; and, in general, to protect
All submissions should refer to File
investors and the public interest.
Number SR–ISE–2004–29. This file
The Commission discusses below
number should be included on the
significant aspects of the proposed rule
subject line if e-mail is used. To help the change.
Commission process and review your
A. Exchange Governance Structure
comments more efficiently, please use
only one method. The Commission will
The proposed rule change would
post all comments on the Commission’s clarify in the Amended Constitution
Internet Web site (https://www.sec.gov/
that the ISE Board, in addition to an
rules/sro.shtml). Copies of the
Executive Committee, has a Corporate
submission, all subsequent
Governance Committee, Finance &
amendments, all written statements
Audit Committee 67 and Compensation
with respect to the proposed rule
Committee. The Exchange also has a
change that are filed with the
Nominating Committee which is not a
Commission, and all written
committee of the ISE Board. Pursuant to
communications relating to the
the Amended Constitution, each of the
proposed rule change between the
Finance & Audit and Compensation
Commission and any person, other than Committees will be comprised of three
those that may be withheld from the
(3) and no more than five (5) Nonpublic in accordance with the
Industry Directors. The Corporate
provisions of 5 U.S.C. 552, will be
Governance Committee will be
available for inspection and copying in
comprised of three (3) and no more than
the Commission’s Public Reference
eight (8) Non-Industry Directors. The
Section, 450 Fifth Street, NW.,
ISE Board will adopt a charter setting
Washington, DC 20549. Copies of such
forth the responsibilities of each of these
filing also will be available for
committees.68 The Commission notes
inspection and copying at the principal
that information about the existence of
office of the ISE. All comments received the Corporate Governance and
will be posted without change; the
Compensation Committee was
Commission does not edit personal
previously not widely available or
identifying information from
specified in the Constitution. Thus, the
submissions. You should submit only
proposed amendments would serve to
information that you wish to make
increase transparency with respect to
available publicly. All submissions
these key committees and, thus, serve to
should refer to Amendment No. 2 of File improve their accountability to the
Number SR–ISE–2004–29 and should be
64 In approving the proposed rule change, the
submitted on or before February 10,
Commission has considered its impact on
2005.
III. Solicitation of Comments
IV. Discussion
The Commission has considered the
ISE’s proposed rule change, as
amended, and finds that the proposal is
consistent with the Act and the rules
and regulations thereunder applicable to
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
65 15 U.S.C. 78f(b)(1).
66 15 U.S.C. 78f(b)(5).
67 The Finance & Audit Committee is referred to
as the Audit Committee under the current
Constitution. See Section 5.4 of the Constitution.
68 See Sections 5.4, 5.5 and 5.6 of the Amended
Constitution.
PO 00000
Frm 00058
Fmt 4703
Sfmt 4703
3239
benefit of the Exchange and the
investing public. The Exchange also has
proposed certain other changes to
facilitate its conversion to a public
company.69
The Commission generally believes
ISE’s proposed changes should serve to
strengthen and improve the Exchange’s
governance structure and are consistent
with the Act. The Commission notes,
however, that it is in the process of
reviewing a range of governance issues
relating to self-regulatory organizations
(‘‘SROs’’), including possible steps to
strengthen the framework for the
governance of SROs and ways to
improve the transparency of the
governance procedures of all SROs and
has proposed rules in furtherance of this
goal.70 Depending upon the results of
the proposed rules, the ISE may be
required to make further changes to
further strengthen its governance
structure. The Commission also believes
that the ISE Board should continue to
monitor and evaluate the Exchange’s
governance structure and processes on
an ongoing basis, and propose further
changes as appropriate.
B. Changes in Control of the ISE
The proposed Amended Certificate
would impose limitations on direct and
indirect changes in control of the ISE
through voting and ownership
limitations placed on ISE’s capital stock
(whether common stock or preferred
stock) and allow the ISE Board to
monitor potential changes in control
through a notification requirement, once
a threshold percentage of ownership of
capital stock is reached.71 The
Commission believes that the
limitations on direct and indirect
changes in control of the ISE, which are
designed to prevent any shareholder (or
shareholders acting together) from
exercising undue control over the
operation of the exchange and to help
ensure that the ISE and the Commission
are able to carry out their regulatory
69 See supra Section II.B for a discussion of the
other proposed changes.
70 See Securities Exchange Act Release No. 50699
(November 18, 2004), 69 FR 71126 (December 8,
2004).
71 The Amended Certificate requires that any
Person, either alone or together with its Related
Persons), who at any time owns five percent (5%)
or more of the then outstanding shares of the capital
stock and who has the right to vote in the election
of the ISE Board of the Exchange shall, immediately
upon so owning five percent (5%) or more of the
then outstanding shares of such stock give the ISE
Board written notice of such ownership and update
the notice promptly after an ownership change of
a specified percentage. See Article Fourth,
Subdivision III(a)(iii)–(iv) of the Amended
Certificate.
E:\FR\FM\21JAN1.SGM
21JAN1
3240
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
responsibilities, are consistent with the
Act.72
Specifically, the proposed Amended
Certificate provides that, unless
approved by the ISE Board and effective
under Section 19(b) of the Act,73 no
person, either alone or together with its
related persons, has any right to vote, or
to give any consent or proxy with
respect to, more than 20% of the then
outstanding shares of any class or series
of capital stock of ISE.74 Moreover, no
person, either alone or together with its
related persons, unless approved by the
ISE Board and effective under Section
19(b) of the Act,75 may own, of record
or beneficially, whether directly or
indirectly, more than 40% of the then
outstanding shares of any class or series
of capital stock of ISE.76 To the extent
that such person, or its related person,
purports to acquire or own more than
40% of the then outstanding shares of
any class or series of capital stock of
ISE, the person, and its related persons,
will not have any rights incident to
ownership of shares in excess of the
40% limit.77
The ISE Board will only be able to
waive the 20% voting and 40%
ownership limitations if it adopts an
amendment to ISE’s Constitution after
making certain findings that doing so
would not impair the ability of ISE and
the Commission to carry out their
respective regulatory obligations and is
otherwise in the best interests of the
Exchange. The ISE Board, however, will
not be permitted to approve a member
or person subject to a statutory
disqualification to exceed the limits.78
The resolution would then be filed with
the Commission as a proposed rule
change under Rule 19b–4 of the Act,79
and the resolution would not become
72 The Commission notes that it is in the process
of reviewing issues relating to new ownership
structures of SROs, and has proposed rules relating
to the ownership of SROs, including imposing
limitations on member ownership of an SRO or
facility of an SRO. See Securities Exchange Act
Release No. 50699, supra note 70.
73 15 U.S.C. 78s(b).
74 See Article Fourth, Subdivision III(b) of the
Amended Certificate. The terms ‘‘person’’ and
‘‘related persons’’ are defined in Article Fourth,
Subdivision III(a) of the Amended Certificate, and
are described in Section II.B.3.a above.
75 15 U.S.C. 78s(b).
76 See Article Fourth, Subdivision III(a) of the
Amended Certificate.
77 See Article Fourth, Subdivision III(c) of the
Amended Certificate. See also supra Section
III.B.3.a.
78 In making such determinations, the ISE Board
may impose any conditions and restrictions on such
person and its related persons owning any shares
of stock of ISE entitled to vote on any matter as the
ISE Board in its sole discretion deems necessary,
appropriate or desirable. See Article Fourth,
Subdivision III(a)(i) and (b)(i) of the Amended
Certificate.
79 17 CFR 240.19b–4.
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
effective until the proposed rule change
becomes effective thereunder.80 The
proposed rule change would present the
Commission with an opportunity to
determine what additional measures, if
any, might be necessary to provide
sufficient regulatory jurisdiction over
the proposed controlling persons.
Furthermore, the Amended Certificate
also contains provisions designed to
provide a disincentive for persons to
exceed these limitations without the
requisite prior approval.81 Specifically,
pursuant to the Amended Certificate,
shares in excess of the ownership
limitations would be deemed to have
been transferred to the Exchange, as
special trustee of a charitable trust, for
the exclusive benefit of a charitable
beneficiary to be determined by the
Exchange.82 The purchaser would cease
to have voting and economic rights in
the excess shares, other than the right to
receive proceeds from the sale of such
shares by the trustee.83 In addition, if
votes were cast in excess of the 20%
voting limitation, ISE would be required
to disregard such votes cast in excess of
the 20% voting limitation.84
The proposed Amended Certificate
also provides that no member of ISE,
either alone or together with its related
persons, will be allowed to own, of
record or beneficially, whether directly
or indirectly, more than 20% of the then
outstanding shares of any class or series
80 See Article Fourth, Subdivision III(a)(i) and
(b)(i) of the Amended Certificate.
81 See Article Fourth, Subdivision III(c) of the
Amended Certificate.
82 See Article Fourth, Subdivision III(c) of the
Amended Certificate. These corrective procedures
also would apply if there is any other event causing
any holder of capital stock to exceed the ownership
limits, such as a repurchase of shares by the
Exchange. Any holders owning excess shares as a
result of any event other than a sale, transfer,
assignment or pledge would cease to have rights in
such shares.
83 See supra Section II.B.3.a for a more detailed
description of how this process works.
84 Article Fourth, Subdivision III(b)(ii) of the
Amended Certificate provides that the 20% voting
limitation provisions would not apply to (1) any
solicitation of any revocable proxy from any
stockholder of ISE by the ISE or by any stockholder
of the ISE that is conducted pursuant to, and in
accordance with, Regulation 14A promulgated
pursuant to the Act. This provision is designed to
ensure that the voting limitations will not restrict
the exercise of proxy rights under Regulation 14A
of the Act.
Article Fourth, Subdivision III(b)(iii) of the
Amended Certificate provides that, to the fullest
extent permitted by applicable law, shares of capital
stock that are not entitled to be voted as a result
of the 20% voting limitation shall not be deemed
to be outstanding for the purposes of determining
a quorum or a minimum vote required for the
transaction of any business at any meeting of
stockholders of ISE, including, without limitation,
when specified business is to be voted on by a class
or a series voting as a class.
PO 00000
Frm 00059
Fmt 4703
Sfmt 4703
of capital stock of ISE.85 To the extent
any member, or its related persons,
purports to acquire or own more than
20% of the then outstanding shares of
any class or series of capital stock of
ISE, that member, and its related
persons, will not have any rights
incident to ownership of shares in
excess of the 20% limit.86 Furthermore,
the Amended Certificate also contains
provisions designed to provide a
disincentive for persons to exceed this
limitation.87
The Commission believes that the
20% ownership (and thus voting)
limitation restriction on ISE members is
reasonable and consistent with the Act.
Members who trade on an exchange or
through a facility of an exchange have
traditionally had ownership interests in
such exchange or facility. However, a
member’s interest could become so large
as to cast doubt on whether the
exchange can fairly and objectively
exercise its self-regulatory
responsibilities with respect to that
member. An exchange may hesitate to
diligently monitor and surveil the
trading conduct of a member that is a
controlling shareholder of the exchange,
or to diligently enforce its rules and the
federal securities laws with regard to
conduct by such member that violates
these provisions. The Commission
believes that the proposed limitation
would help mitigate the conflict of
interest that could occur if a member
were to control a significant stake in the
Exchange, and are necessary and
appropriate to help ensure that the
Exchange can effectively carry out its
statutory obligations under Section 6(b)
of the Act.88 The Commission notes that
the Exchange represented that no
member currently owns shares in excess
of the 20% limitation.
The Amended Certificate of
Incorporation also would require
shareholders to report ownership
interest of 5% or more to ISE. This
provision would help the ISE Board
more readily monitor ownership of its
shares of stock in order to determine
whether a person, either alone or with
its related persons, would exceed these
voting and ownership limitations.89 The
85 See Article Fourth, Subdivision III(a)(ii) of the
Amended Certificate.
86 See Article Fourth, Subdivision III(c) of the
Amended Certificate.
87 See supra notes 82–83 and accompanying text.
88 15 U.S.C. 78f(b).
89 See supra note 71 and accompanying text. In
addition, upon consummation of ISE’s proposed
IPO, the information required to be filed by
shareholders pursuant to Regulations 13D and 13G
will be available to ISE for purposes of determining
whether any person, along or together with its
related persons, has exceeded the voting and
ownership limitations. The Commission also notes
E:\FR\FM\21JAN1.SGM
21JAN1
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
Commission believes that this approach
is consistent with the Act in that it
allows the ISE to comply with the
reporting requirements of Form 1, the
application for (and amendments to
application for) registration as a national
securities exchange. Exhibit K of Form
1 requires any exchange that is a
corporation or partnership to list any
persons that have an ownership interest
of five percent (5%) or more in the
exchange, and Rule 6a–2(a)(2) under the
Act requires an exchange to update its
Form 1 within ten days after any action
that renders inaccurate the information
previously filed in Exhibit K.90
C. Self-Regulatory Function of the ISE
After its IPO, the Exchange will
continue to operate as a registered
national stock exchange under Section 6
of the Act 91 and will maintain its
current regulatory authority over
members. All persons effecting
transactions on or through the facilities
of the Exchange will continue to be
subject to the Exchange’s rules. Certain
provisions in the Amended Certificate
and Amended Constitution are designed
to facilitate the ability of ISE and the
Commission to fulfill their regulatory
obligations under the Act, and in
particular under Sections 6(b) 92 and
19(g) 93 of the Act, with respect to the
Exchange. Specifically, Article Twelfth
of the Amended Certificate expressly
requires the Directors, in managing the
business and affairs of the ISE, to
consider applicable requirements for
registration as a national securities
exchange under the Act, including the
requirements that the rules of the ISE be
designed to protect investors and the
public interest and the ISE shall be so
organized and have the capacity to carry
out the purposes of the Act and (subject
to exceptions set forth in the Act and
rules and regulations thereunder) to
enforce compliance with it members
and persons associated with its
members, with the provisions of the Act
and the rules and regulations
thereunder and with the ISE’s Rules. In
the Commission’s view, this provision
will serve to remind the Directors that
they must consider the requirements of
the Act when taking actions on behalf
that, upon completion of its IPO, the Exchange
would be required to publicly disclose on a
quarterly basis information regarding the number of
outstanding shares of its Common Stock, so that
persons with a stake in the Common Stock can
determine whether they are reaching, or have
reached, any of the thresholds that restrict that
person’s ability to vote or own shares. See 17 CFR
240.13a–13.
90 17 CFR 240.6a-2(a)(2).
91 15 U.S.C. 78f.
92 15 U.S.C. 78f(b).
93 15 U.S.C. 78s(g).
VerDate jul<14>2003
14:11 Jan 19, 2005
Jkt 205001
of the ISE and thus promote greater
awareness and accountability on the
part of the Directors.
Additionally, pursuant to the
Amended Certificate, all confidential
information pertaining to the selfregulatory function of the Exchange
(including but not limited to
disciplinary matters, trading data,
trading practices and audit information)
contained in the books and records of
the Exchange shall: (1) Not be made
available to any persons other than to
those officers, directors, employees and
agents of the Exchange that have a
reasonable need to know the contents
thereof; (2) be retained in confidence by
the Exchange and the officers, directors,
employees and agents of the Exchange;
and (3) not be used for any commercial
purposes.94 In addition, the ISE’s books
and records shall be maintained within
the United States.95 The Commission
believes that these provisions, which are
designed to help maintain the
independence and effectiveness of ISE’s
self-regulatory function, are appropriate
and consistent with the Act.
The Exchange also will continue to
interpret its rules to require that any
revenues it receives from regulatory fees
or regulatory penalties will be
segregated and applied to fund the legal,
regulatory and surveillance operations
of the Exchange and will not be used to
pay dividends to the holders of Class A
Common Stock.96 The Commission
finds that the prohibition on the use of
regulatory fines, fees or penalties to
fund dividends is consistent with
Section 6(b)(3) of the Act 97 because it
will further advance ISE’s ability to
effectively comply with its statutory
requirements by helping to ensure the
regulatory authority of the Exchange is
not improperly used.
D. Membership Trading Concentration
Limits
Currently, pursuant to ISE Rule 303,
the ISE Board may not approve a
member to operate more than one
Primary Market Maker Membership or
more than 10 Competitive Market Maker
Memberships, unless the restriction is
waived by the ISE Board for good cause.
In addition, Section 14.1(b) of the
Constitution requires that ISE may not
approve an ISE member, together with
Amended Certificate, Article Thirteenth.
Amended Constitution, Section 1.3.
96 The Exchange adopted this interpretation in
connection with its demutualization in 2002. See
infra note 9. The Commission also notes that the
Exchange represents that the holders of the Class B
Common Stock are not entitled to receive
dividends. See Section II.A of Securities Exchange
Act Release No. 50641, supra note 3.
97 15 U.S.C. 78f(b)(3).
PO 00000
94 See
95 See
Frm 00060
Fmt 4703
Sfmt 4703
3241
any affiliate, to exercise the trading
rights associated with more than twenty
percent (20%) of ISE’s Series B–1 Stock,
nor more than twenty (20%) of ISE’s
Series B–2 Stock, and permits the
Exchange to establish further limitations
relating to the Exchange’s approval of a
member’s ability to effect transactions
on or through the facilities of the
Exchange.
Pursuant to the proposed rule change,
ISE would delete the 20% limitation
from Section 14.1(b) of the Constitution,
and would move it to Rule 303(b).
Specifically, Rule 303(b) would not
permit the ISE Board to waive the
Primary Market Maker and Competitive
Market Maker Membership
concentration limits in Rule 303(b) if
such waiver would result in an ISE
member, together with any of its
affiliates, being approved to exercise
trading privileges associated with more
than twenty percent (20%) of ISE’s
outstanding Primary Market Maker
Memberships or more than twenty
(20%) of ISE’s outstanding Competitive
Market Maker Memberships. The
Commission believes this limitation on
the ability to operate more than a certain
percentage of memberships will serve to
protect the integrity of the Exchange’s
regulatory oversight responsibilities by
preventing the Exchange from becoming
overly dependent on the business
generated by any one member. Without
such a provision, the Exchange may be
reluctant to surveil and enforce its rules
against such a member.
V. Accelerated Approval of
Amendment No. 2
Pursuant to Section 19(b)(2) of the
Act,98 the Commission may not approve
any proposed rule change, or
amendment thereto, prior to the
thirtieth day after the date of
publication of the notice of filing
thereof, unless the Commission finds
good cause for so finding. The
Commission hereby finds good cause for
approving Amendment No. 2 to the
proposed rule change prior to the
thirtieth day after publishing notice of
the same in the Federal Register
pursuant to Section 19(b)(2) of the
Act.99 Specifically, Amendment No. 2
provides technical, non-substantive
amendments to correct typographical
errors in the Amended Certificate and
Amended Constitution, previously filed
as part of the original proposed rule
change,100 and revises Section 2 of ISE’s
98 15
U.S.C. 78s(b)(2).
99 Id.
100 The Commission notes that the Exchange also
undertakes to present to the ISE Board and
E:\FR\FM\21JAN1.SGM
Continued
21JAN1
3242
Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Notices
Form 19b–4 (Procedures of the SelfRegulatory Organization) to reflect
actions by the ISE Board and ISE’s
stockholders approving the final forms
of the Amended Certificate and
Amended Constitution. Amendment No.
2 also proposes changes to ISE Rule
303(b) and amended related portions of
its Form 19b–4. Specifically,
Amendment No. 2 amends ISE Rule
303(b) to incorporate the 20% limit on
the trading privileges associated with
Primary Market Maker and Competitive
Market Maker Memberships that may be
exercised by a member of ISE that
currently is imposed by ISE’s
Constitution.101 Because Amendment
No. 2 moves the substance of an existing
rule from ISE’s Constitution to its Rules,
the Commission believes that there is no
new novel issue. Therefore, the
Commission finds that good cause exists
to accelerate approval of Amendment
No. 2 to the proposed rule change,
pursuant to Section 19(b)(2) of the
Act.102
rule change, as amended, is consistent
with the Act and rules and regulations
thereunder applicable to a national
securities exchange.
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,103 that the
proposed rule change, including
Amendment No. 2 thereto (SR–ISE–
2004–29) be, and hereby is, approved,
and that Amendment No. 2 thereto is
approved on an accelerated basis. The
proposed rule change shall be effective
upon the closing of ISE’s IPO as
described herein.
VI. Conclusion
For the foregoing reasons, the
Commission finds that the proposed
Public Federal Regulatory
Enforcement Fairness Hearing; Region
VI Regulatory Fairness Board
stockholders for approval the correction of certain
typographical errors in the Amended Certificate at
the next meetings of the ISE Board and stockholders
at which other amendments to the Amended
Certificate are also proposed, and will promptly file
such corrections with the Commission pursuant to
Section 19(b) of the Exchange Act. Specifically, the
Exchange undertakes to propose to correct: Article
Fourth, Subdivision III(a)(i) of the Amended
Certificate to add a comma between the words
‘‘Person’’ and ‘‘either’’; Article Fourth, Subdivision
III(b)(i) of the Amended Certificate to delete a
comma appearing between the words ‘‘ability of the
Corporation’’ and ‘‘to carry out its functions’’; and
Article Fourth, Subdivision III(a)(i)(E) of the
Amended Certificate to insert the word ‘‘would’’
between the words ‘‘or preferred) that’’ and ‘‘result
in such.’’ The Exchange also undertakes to present
to the ISE Board for approval the insertion of the
word ‘‘a’’ between the words ‘‘the meeting until’’
and ‘‘quorum is present’’ in Section 5.5(b) of the
Amended Constitution at the next meeting of the
Board at which other amendments to the Amended
Constitution are also proposed. See Amendment
No. 2, supra note 4.
101 See Section 14.1(b) of the Constitution.
Pursuant to Section 14.1(b), ISE may not approve
a Member of ISE, together with any affiliate, to
exercise the trading rights associated with more
than 20% of ISE’s Series B–1 Stock, nor more than
20% of ISE’s Series B–2 Stock, and may establish
further limitations relating to ISE’s approval of an
ISE Member’s ability to effect transactions executed
on or through the facilities of the Exchange. The
20% limitation will be moved to Rule 303(b) of
ISE’s rules. Rule 303(b), as amended, would not
permit the Exchange to establish further limitations,
as the current Constitution does. The Exchange
represents that it does not believe it will be
necessary to establish further limitations. The
language also reflects the current language of Rule
303(b) in that it refers to the exercise of trading
privileges associated with a Primary Market Maker
or Competitive Market Maker Membership, rather
than the exercise of trading rights associated with
series B–1 or B–2 stock.
102 Id.
VerDate jul<14>2003
16:58 Jan 19, 2005
Jkt 205001
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.104
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E5–198 Filed 1–19–05; 8:45 am]
BILLING CODE 8010–01–P
SMALL BUSINESS ADMINISTRATION
The Small Business Administration
Region VI Regulatory Fairness Board
and the SBA Office of the National
Ombudsman will hold a Public Hearing
on Monday, January 31, 2005 at 8:30
a.m. at Texas Tech University, Animal
and Food Sciences Building, Room 101,
located on the Southwest corner of
Indiana Blvd. and Brownfield Highway,
Lubbock, TX 79401, phone (806) 742–
2513, to receive comments and
testimony from small business owners,
small government entities, and small
non-profit organizations concerning
regulatory enforcement and compliance
actions taken by federal agencies.
Anyone wishing to attend or to make
a presentation must contact Scotty
Arnold in writing or by fax, in order to
be put on the agenda. Scotty Arnold,
Economic Development Specialist, SBA
Lubbock District Office, Mahon Federal
Building, 1205 Texas Ave., Room 408,
Lubbock, TX 79401, phone (806) 472–
7462 Ext. 102, fax (806) 472–7487, email: Scotty.arnold@sba.gov.
For more information, see our Web
site at https://www.sba.gov/ombudsman.
Dated: January 11, 2005.
Peter Sorum,
Senior Advisor, Office of the National
Ombudsman.
[FR Doc. 05–1096 Filed 1–19–05; 8:45 am]
BILLING CODE 8025–01–P
PO 00000
103 Id.
104 17
CFR 200.30–3(a)(12).
Frm 00061
Fmt 4703
Sfmt 4703
DEPARTMENT OF STATE
[Public Notice 4957]
Culturally Significant Objects Imported
for Exhibition Determinations:
‘‘Defining Yongle: Imperial Art in Early
Fifteenth-Century China’’
SUMMARY: Notice is hereby given of the
following determinations: Pursuant to
the authority vested in me by the Act of
October 19, 1965 (79 Stat. 985; 22 U.S.C.
2459), Executive Order 12047 of March
27, 1978, the Foreign Affairs Reform and
Restructuring Act of 1998 (112 Stat.
2681, et seq.; 22 U.S.C. 6501 note, et
seq.), Delegation of Authority No. 234 of
October 1, 1999, Delegation of Authority
No. 236 of October 19, 1999, as
amended, and Delegation of Authority
No. 257 of April 15, 2003 (68 FR 19875),
I hereby determine that the objects to be
included in the exhibition ‘‘Defining
Yongle: Imperial Art in Early FifteenthCentury China,’’ imported from abroad
for temporary exhibition within the
United States, are of cultural
significance. The objects are imported
pursuant to a loan agreement with the
foreign owner. I also determine that the
exhibition or display of the exhibit
objects at the Metropolitan Museum of
Art, New York, New York, from on or
about April 1, 2005, to on or about July
10, 2005, and at possible additional
venues yet to be determined, is in the
national interest. Public notice of these
determinations is ordered to be
published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: For
further information, including a list of
the exhibit objects, contact Wolodymyr
R. Sulzynsky, the Office of the Legal
Adviser, Department of State,
(telephone: 202/453–8050). The address
is Department of State, SA–44, 301 4th
Street, SW., Room 700, Washington, DC
20547–0001.
Dated: January 11, 2005.
C. Miller Crouch,
Principal Deputy Assistant Secretary for
Educational and Cultural Affairs, Department
of State.
[FR Doc. 05–1136 Filed 1–19–05; 8:45 am]
BILLING CODE 4710–08–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
Aviation Proceedings, Agreements
Filed the Week Ending January 7, 2005
The following Agreements were filed
with the Department of Transportation
under the provisions of 49 U.S.C. 412
and 414. Answers may be filed within
E:\FR\FM\21JAN1.SGM
21JAN1
]]>Agencies
[Federal Register Volume 70, Number 13 (Friday, January 21, 2005)]
[Notices]
[Pages 3233-3242]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-198]
[[Page 3233]]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-51029; File No. SR-ISE-2004-29)]
Self-Regulatory Organizations; Order Approving Proposed Rule
Change and Notice of Filing and Order Granting Accelerated Approval to
Amendment No. 2 to the Proposed Rule Change by the International
Securities Exchange, Inc., Relating to Proposed Amendments to Its
Certificate of Incorporation and Constitution and ISE Rule 303
January 12, 2005.
I. Introduction
On October 22, 2004, the International Securities Exchange, Inc.,
(``Exchange'' or ``ISE'') filed with the Securities and Exchange
Commission (``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 \1\ (``Act''), and Rule 19b-4
thereunder,\2\ a proposed rule change to amend its Certificate of
Incorporation (``Certificate of Incorporation'') and Constitution
(``Constitution''). The proposed rule change was published for comment
in the Federal Register on November 12, 2004.\3\ On December 21, 2004,
ISE filed Amendment No. 1 to the proposal. On December 22, 2004, ISE
withdrew Amendment No. 1 and filed Amendment No. 2 to the proposal.\4\
No comment letters were received on the proposed rule change. This
order approves the proposed rule change, as amended.\5\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 50641 (November 5,
2004), 69 FR 65481.
\4\ In Amendment No. 2, ISE made typographical corrections to
the proposed Amended and Restated Certificate of Incorporation (the
``Amended Certificate'') and proposed Amended and Restated
Constitution (``Amended Constitution''), previously filed as part of
the proposal, and revised Section 2 of its Form 19b-4 (Procedures of
the Self-Regulatory Organization) to reflect actions by the ISE
Board and ISE's stockholders approving the final forms of the
Amended Certificate and Amended Constitution. In Amendment No. 2,
ISE also proposed changes to ISE Rule 303(b) to incorporate the 20%
limit on the number of trading rights associated with ISE's Series
B-1 and Series B-2 Common Stock that may be exercised by a Member of
ISE that currently is imposed by Section 14(b) of the Constitution,
and amended related portions of its Form 19b-4. Exhibit 5 to
Amendment No. 2, which sets forth the text of the Amended
Certificate, the Amended Constitution and Rule 303, as proposed to
be amended, is available on the Commission's Web site (https://
www.sec.gov/rules/sro.shtml), at the Commission and at ISE. The
complete text of Amendment No. 2 is available at the Commission and
the ISE.
At the request of the ISE, the Commission staff corrected the
description of certain typographical corrections to the amended rule
text provided in Amendment No. 2. Telephone conversation between
Katherine Simmons, Vice President and Assistant Secretary, ISE and
Jennifer C. Dodd, Attorney, Division of Market Regulation,
Commission on January 4, 2005.
\5\ The proposed rule change includes the Amended Certificate,
Amended Constitution (also serving as the ``Exchanges Bylaws''), and
proposed amendments to Rule 303.
---------------------------------------------------------------------------
II. Description of Proposed Rule Change
The purpose of the proposed rule change is to amend ISE's
Certificate of Incorporation and Constitution (also serving as the
Exchange's bylaws), as well as ISE Rule 303, in connection with ISE's
contemplated initial public offering (``IPO'') of its Class A common
stock, par value $.01 per share (the ``Class A Common Stock''), of the
Exchange.\6\ The Exchange represents that the proposed rule change, if
approved, would become effective concurrently with the IPO.\7\
---------------------------------------------------------------------------
\6\ Separately, the Exchange also is contemplating a
reorganization into a holding company structure, the completion of
which is contingent upon receipt of a favorable tax ruling from the
Internal Revenue Service and Commission approval. The Exchange will
separately file a proposed rule change seeking Commission approval
of that reorganization. The Exchange currently anticipates that the
reorganization will occur sometime following the IPO.
\7\ In connection with the proposed IPO, the Exchange filed a
registration statement on Form S-1 with the Commission on July 2,
2004 (File No. 333-117145); as amended from time to time (the
``Registration Statement'').
---------------------------------------------------------------------------
Following the IPO, the Exchange will continue to operate as a
registered ``national securities exchange'' under Section 6 of the
Act,\8\ and will maintain its current regulatory authority over its
members. All persons using the Exchange will continue to be subject to
the Exchange's rules. The Exchange also will continue to interpret its
rules to require that any revenues it receives from regulatory fees or
regulatory penalties will be segregated and applied to fund the legal,
regulatory and surveillance operations of the Exchange and will not be
used to pay dividends to the holders of Class A Common Stock.\9\
Certain of the proposed changes to the Certificate of Incorporation and
Constitution, as well as the proposed changes to ISE Rule 303, are
intended to ensure that the IPO of the Exchange will not unduly
interfere with or restrict the ability of the Exchange or the
Commission to effectively carry out their respective regulatory
oversight responsibilities under the Act and generally to enable the
Exchange to operate in a manner that complies with the federal
securities laws, including furthering the objectives of Section 6(b)(5)
of the Act.\10\ ISE also represents that some of the proposed changes
to the Certificate of Incorporation and Constitution are intended to
facilitate the IPO or otherwise relate to the Exchange's status as a
public company following its IPO.
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78f.
\9\ The Exchange adopted this interpretation in connection with
its demutualization in 2002. See Securities Exchange Act Release No.
45803 (April 23, 2002), 67 FR 21306 (April 30, 2002).
\10\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
A. Current Capital Stock and Board Structure of ISE \11\
---------------------------------------------------------------------------
\11\ For a discussion of the Exchange's current capital board
structure, see Securities Exchange Act Release No. 45803, supra note
9.
---------------------------------------------------------------------------
The Exchange currently has two classes of common stock, Class A
Common Stock and Class B common stock, par value $.01 per share
(``Class B Common Stock'').\12\ The Class A Common Stock has the
traditional features of common stock, including voting, dividend and
liquidation rights.\13\ Subject to certain limitations, holders of
Class A Common Stock are entitled to vote on all matters submitted to
stockholders for a vote.\14\
---------------------------------------------------------------------------
\12\ The Exchange represents that some owners of shares of Class
A Common Stock also own shares of Class B Common Stock. For a list
of principal stockholders and their ownership of Class A and Class B
Common Stock, see the Registration Statement, ``Principal and
Selling Stockholders.''
\13\ The Amended Certificate will clarify that, as is currently
the case, holders of shares of Class A Common Stock are entitled to
all residual interests in the event of a liquidation, winding up or
dissolution of the Exchange after payment of or provision for the
obligations of the Exchange, any preferential amounts payable to
holders of shares of preferred stock and amounts payable to the
holders of any outstanding shares of Class B Common Stock.
\14\ For the provisions relating to the Class A Common Stock,
see Certificate of Incorporation, Article Fourth, Subdivision II(a).
The holders of shares of Class A Common Stock are not entitled to
vote with respect to the Core Rights (as defined in note 19, infra),
the definition of ``Core Rights,'' or the election of Industry
Directors (as defined herein, see infra note 22 and accompanying
text).
---------------------------------------------------------------------------
The Exchange has three series of Class B Common Stock, each series
representing certain trading rights and privileges and limited voting
rights. Ownership of the Class B Common Stock, Series B-1 (``Series B-1
Common Stock''), is a predicate to obtaining the trading rights and
privileges associated with a Primary Market Maker.\15\ Ownership of the
Class B Common Stock, Series B-2 (``Series B-2 Common Stock''), is a
predicate to obtaining the trading rights and privileges associated
[[Page 3234]]
with a Competitive Market Maker.\16\ Ownership of the Class B Common
Stock, Series B-3 (the ``Series B-3 Common Stock''), is a predicate to
obtaining the trading rights and privileges associated with an
Electronic Access Member.\17\
---------------------------------------------------------------------------
\15\ ``Primary Market Makers'' are market makers with
significant responsibilities, including overseeing the opening of
trading in their assigned options classes, providing continuous
quotations in all of their assigned options classes, and handling
customer orders that are not automatically executed. See Chapter 8
of the ISE Rules and the Registration Statement, ``Business,'' for a
discussion of the role of Primary Market Makers on the Exchange.
\16\ ``Competitive Market Makers'' are market makers that add
depth and liquidity to the market and are required to provide
continuous quotations in at least 60% of the options classes in
their assigned group. See Chapter 8 of the ISE Rules and the
Registration Statement, ``Business,'' for a discussion of the role
of Competitive Market Makers on the Exchange.
\17\ ``Electronic Access Members'' are broker-dealers that
represent agency and proprietary orders on the Exchange, and cannot
enter quotations or otherwise engage in market making activities on
the Exchange. See Chapter 8 of the ISE Rules and the Registration
Statement, ``Business,'' for a discussion of the role of Electronic
Access Members on the Exchange.
---------------------------------------------------------------------------
The holders of the Class B Common Stock are not entitled to receive
dividends; rather, the holders of such stock are only entitled to
receive an amount equal to the par value of each share of Class B
Common Stock (i.e., $.01) held upon the liquidation, dissolution or
winding up of the Exchange.\18\ Also, such holders are entitled to vote
on the election of directors representing the applicable series of
Class B Common Stock, with each series of Class B Common Stock being
entitled to elect two directors to the Board of Directors of ISE (the
``ISE Board'').
---------------------------------------------------------------------------
\18\ The Amended Certificate will clarify that, as is currently
the case, such amount will be paid before any proceeds from the
liquidation, dissolution or winding up of the Exchange are paid to
the holders of Class A Common Stock.
---------------------------------------------------------------------------
The owners of Series B-1 Common Stock and Series B-2 Common Stock
also are entitled to vote on any change in, or amendment or
modification to, the ``Core Rights'' \19\ or the definition of Core
Rights. In such a case, the Exchange must obtain the approval of the
holders of a majority of both the of Series B-1 Common Stock and the
Series B-2 Common Stock, each voting as a separate class with respect
to such action.\20\
---------------------------------------------------------------------------
\19\ ``Core Rights'' as defined in Article Fourth, Subdivision
II(a)(i) of the Certificate of Incorporation means any ``increase in
the number of authorized shares of the Series B-1 Stock or the
Series B-2 Stock.''
\20\ For the provisions relating to the Class B Common Stock,
see Certificate of Incorporation, Article Fourth, Subdivision II(b).
The Amended Certificate proposes to make certain technical
amendments to clarify that, as is currently the case, neither the
holders of Class A Common Stock nor the holders of Series B-3 Common
Stock are entitled to vote on the Core Rights.
Additionally, the vote required with respect to the Core Rights
would be increased from a majority of the votes cast by each of the
holders of the Series B-1 Stock and Series B-2 Stock to a majority
of the then outstanding shares of each of the Series B-1 Stock and
Series B-2 Stock. See Amended Certificate, Article Fourth,
Subdivision II(a) and (b). As is now the case, any increase or
decrease in the overall number of authorized shares of Class B
Common Stock would require approval of the holders of a majority of
the outstanding shares of Class A Common Stock, voting as a separate
class, and the holders of a majority of the outstanding shares of
Series B-1 Stock and Series B-2 Stock, voting together as a separate
class; any decrease in the number of authorized shares of Series B-1
Stock or Series B-2 Stock would require approval of the holders of a
majority of the outstanding shares of Class A Common Stock; and any
increase or decrease in the number of authorized shares of Series B-
3 Stock would require approval of the holders of a majority of the
outstanding shares of Class A Common Stock. The Exchange also may
issue preferred stock in the future, the terms of which would be
determined by the ISE Board, subject to Commission approval. See
Certificate of Incorporation, Article Fourth, Subdivision I.
---------------------------------------------------------------------------
The ISE Board consists of 15 members, eight of whom are elected by
the holders of the Class A Common stock (the ``Non-Industry
Directors''),\21\ six of whom are elected by the holders of the Class B
Common Stock (the ``Industry Directors'') \22\ and the Chief Executive
Officer of the Exchange. In accordance with the current Certificate of
Incorporation and Constitution of the Exchange, each director, other
than the Chief Executive Officer, holds office for a term of two
years.\23\ The Chief Executive Officer holds office for a term of one
year, or such earlier time as such person no longer serves as Chief
Executive Officer. The directors, other than the Chief Executive
Officer, are divided into two classes, designated as Class I and Class
II directors.\24\ At each annual meeting of stockholders, the
successors of the class of directors whose term expires at that meeting
will be elected to hold office for a term expiring at the annual
meeting of stockholders held in the second year following the year of
their election, and until their successors are elected and qualified.
Directors, other than the Chief Executive Officer, may not hold office
for more than three consecutive terms.\25\
---------------------------------------------------------------------------
\21\ Nominees for election to the ISE Board to serve as Non-
Industry Directors are currently made by the Exchange's Corporate
Governance Committee, on which all of the Non-Industry Directors
serve. Stockholders also may nominate Non-Industry Director
candidates for election to the ISE Board by petition. See Section
3.10 of the Constitution.
\22\ Nominees for election to the ISE Board to serve as Industry
Directors are currently made by the Exchange's Nominating Committee,
which is not a committee of the ISE Board, and is comprised of
representatives of the holders of each series of Class B Common
Stock. Stockholders also may nominate Industry Director candidates
for election to the ISE Board by petition. See Section 3.10 of the
Constitution.
\23\ The Amended Certificate would clarify that the ISE Board is
authorized to fill any vacancies on the ISE Board. See Amended
Certificate, Article Fourth, Subdivision II(a)(i) and (b)(v)(A). The
Amended Certificate also would provide that directors may only be
removed for cause by the stockholders to the extent permitted under
applicable law, and not by a vote of two-thirds of the directors as
is currently the case. See Amended Certificate, Article Fifth,
paragraph (b).
\24\ For a list of the Exchange's current directors and their
respective classes, see Registration Statement, ``Management.'' As
currently and prospectively constructed, each class will be composed
of half of the Non-Industry Directors and half of each of the Series
B-1, Series B-2 and Series B-3 directors.
\25\ For the provisions relating to the ISE Board, see
Certificate of Incorporation, Article Fifth and Constitution,
Section 3.2.
---------------------------------------------------------------------------
In addition, the Exchange currently has an Audit Committee (which
is proposed to be renamed as the Finance & Audit Committee), a
Corporate Governance Committee and a Compensation Committee, all of
which are governed by charters.\26\
---------------------------------------------------------------------------
\26\ For a discussion of these committees and their
responsibilities, see Registration Statement, ``Management.'' The
Exchange represents that the ISE Board designated these committees
pursuant to its authority under Section 5.1 of the Constitution,
though the Corporate Governance and Compensation Committees are not
specifically designated in the current Constitution itself.
---------------------------------------------------------------------------
B. Proposed Amendments to Certificate of Incorporation and Constitution
The Exchange proposes to amend its current Certificate of
Incorporation and Constitution to:
Increase the number of authorized shares of Class A Common
Stock from 5,000,000 to 150,000,000;
Remove the term limits of the Non-Industry Directors;
Adopt certain limitations on the ownership and voting of
shares of Class A Common Stock and of Class B Common Stock;
Require the Board to consider applicable requirements of
the Act in managing the business and affairs of the Exchange;
Clarify that the Exchange has a Corporate Governance
Committee and Compensation Committee, and that these committees, as
well as the Finance & Audit Committee of the Exchange, are governed by
charters;
Adopt certain anti-takeover provisions, including with
respect to the nomination of Non-Industry Directors by the holders of
Class A Common Stock; and
Reduce the vote of the holders of Class A Common Stock
required to amend certain provisions of the Amended Constitution from
two-thirds of the outstanding shares of Class A Common Stock to a
majority of such shares.\27\
---------------------------------------------------------------------------
\27\ The Exchange also would correct certain typographical and
grammatical errors, eliminate outdated or irrelevant references and
make certain non-material changes to the Certificate of
Incorporation and Constitution. Such changes include, among others,
the flexibility to provide notice of ISE Board meetings by several
alternate means (see Section 3.6 of the Amended Constitution); the
empowerment of the ISE Board (instead of the Chief Executive
Officer) to appoint and remove officers (see Sections 4.2 and 4.3 of
the Amended Constitution); the consolidation of the positions of
Chief Executive Officer and President (see Section 4.1 of the
Amended Constitution); and the prohibition on ownership of shares of
Class B Common Stock by officers of the Exchange (see Section 4.5 of
the Amended Constitution).
[[Page 3235]]
---------------------------------------------------------------------------
The Exchange also proposes to amend ISE Rule 303 to provide for certain
member trading concentration limits with respect to shares of Class B
Common Stock currently provided for in the Constitution, as discussed
below.
1. Increase in Number of Authorized Shares of Class A Common Stock of
ISE
The Exchange proposes to increase the number of authorized shares
of ISE's Class A Common Stock in the Amended Certificate from 5,000,000
to 150,000,000.\28\ The Exchange represents that this increase will
provide the ISE Board with the flexibility to declare a stock dividend
that, in the opinion of the underwriters of its IPO, will be sufficient
to result in an appropriate market price per share of the Class A
Common Stock. The Exchange also represents that the increase in the
number of authorized shares of Class A Common Stock will provide
shares: (1) To be offered in ISE's IPO, as well as additional shares
that can be used by the Exchange for future acquisitions that may be
approved by the Board (and by Class A stockholders to the extent
required by the rules of the marketplace for the shares of Class A
Common Stock); and (2) to be used by ISE for stock options, stock
purchase and other equity compensation plans that are approved by the
ISE Board (and by Class A stockholders to the extent required by the
rules of the marketplace for the shares of Class A Common Stock).
---------------------------------------------------------------------------
\28\ See Amended Certificate, Article Fourth.
---------------------------------------------------------------------------
2. Change in the Term Limits of the ISE Board
The Exchange represents that in order to maintain continuity with
respect to its Non-Industry Directors during the transition of the
Exchange to a public company, the Exchange proposes that the three-term
limit (a total of six years of service) currently in the Certificate of
Incorporation and Constitution with respect to all directors, other
than the Chief Executive Officer, would apply only to Industry
Directors.\29\ The Exchange also represents that currently, all of
ISE's Non-Industry Directors face term limits that would result in a
total turn-over of such directors over a two-year period. The Exchange
believes that removing term limits for Non-Industry Directors will
allow the ISE Board to continue to function with experienced Non-
Industry Directors, thereby facilitating a smooth transition to a
public company structure. Once it becomes a public company, the
Exchange represents that it will address term limits for Non-Industry
Directors through amendments to its Corporate Governance
Principles.\30\
---------------------------------------------------------------------------
\29\ See Amended Certificate, Article Fifth, and Amended
Constitution, Section 3.2.
\30\ Because the ISE Board believes it is important that
following the Exchange's IPO there be a smooth transition from the
Non-Industry Directors serving at the time of the IPO to their
successors, the ISE Board has adopted Corporate Governance
Principles providing that it may be appropriate for up to four of
the eight original Non-Industry Directors to serve one additional
term. This would result in a transition to new Non-Industry
Directors over a four-year period, rather than a two-year period.
The ISE Corporate Governance Committee will determine whether, and
how, to provide for this phased transition.
---------------------------------------------------------------------------
3. Ownership and Voting Limitations With Respect to the Exchange's
Capital Stock \31\
---------------------------------------------------------------------------
\31\ Currently, with the exception of certain exemptions for
Founders (as defined in the Constitution), no holder of Class A
Common Stock, together with any affiliate (as defined in the
Constitution), shall vote or give any proxy in relation to a vote
with respect to any shares owned in excess of 20 percent of the
Class A Common Stock, and no holder of Class B Common Stock,
together with any affiliate (as defined in the Constitution) may own
more than 20 percent of Series B-1 Stock or Series B-2 Stock. In
addition, no Member (as defined in the Constitution), together with
any affiliate (as defined in the Constitution), may be approved to
exercise trading rights associated with more than 20 percent of
Series B-1 Stock or Series B-2 Stock (the ``member trading
concentration limit''). Certificate of Incorporation, Article
Fourth, Subdivision II(a)(iv) and Constitution, Article XIV. See
also Securities Exchange Act Release No. 45803, supra note 9. As
discussed herein, the Exchange proposes to amend ISE Rule 303 to
provide for the member concentration limit that is currently
provided for in the Constitution.
---------------------------------------------------------------------------
a. Ownership Limitations. Under the proposed Amended Certificate,
no ``Person'' \32\ either alone or together with its ``Related
Persons'' \33\ would be permitted to own, directly or indirectly, of
record or beneficially,\34\ shares of capital stock (whether common or
preferred stock) of the Exchange (1) constituting more than 40 percent
of the then outstanding shares of any class or series of capital stock
(the ``40 percent ownership limitation''); or (2) constituting more
than 20 percent of the then outstanding shares of any class or series
of capital stock if such holder also is a member of the Exchange (that
is, a Primary Market Maker, Competitive Market Maker or Electronic
Access Member) (the ``20 percent member ownership limitation'').\35\
---------------------------------------------------------------------------
\32\ ``Person'' as defined in Article Fourth, Subdivision III of
the Amended Certificate means any ``individual, partnership (general
or limited), joint stock company, corporation, limited liability
company, trust or unincorporated organization or any governmental
entity or agency or political subdivision thereof.''
\33\ ``Related Person'' as defined in Article Fourth,
Subdivision III of the Amended Certificate means ``(1) with respect
to any Person, all `affiliates' and `associates' of such Person (as
such terms are defined in Rule 12b-2 under the Act); (2) with
respect to any Person constituting a Member, any broker or dealer
with which such Member is associated; and (3) any two or more
Persons that have any agreement, arrangement or understanding
(whether or not in writing) to act together for the purpose of
acquiring, voting, holding or disposing of shares of the capital
stock of the [Exchange].''
\34\ Beneficial ownership (and derivative or similar words) as
defined in Article Fourth, Subdivision III of the Amended
Certificate, would have the meaning set forth in Regulation 13D-G
under the Act. The Exchange believes that use of this existing
Commission definition will aid it in verifying the ownership of its
capital stock by monitoring filings on Schedules 13D and 13G by its
stockholders.
\35\ See Amended Certificate, Article Fourth, Subdivisions
III(a)(i) and (a)(ii).
---------------------------------------------------------------------------
Furthermore, pursuant to the Amended Certificate, any Person, alone
or together with its Related Persons, who owns more than five percent
of the then outstanding shares of any class or series of the Exchange's
capital stock will be required to provide certain information to the
Board and will have an ongoing obligation to update such
information.\36\ The Exchange believes these provisions will enable it
to obtain information necessary to determine whether there has been a
violation of the voting or ownership limitations described herein.
---------------------------------------------------------------------------
\36\ Article Fourth, Subdivision III(a)(iii) of the Amended
Certificate requires that any Person, either alone or together with
its Related Persons, that at any time owns 5 percent or more of the
then outstanding shares of any class or series of capital stock of
ISE, that has the right by its terms to vote in the election of
members of the ISE Board, must, immediately upon so owning 5 percent
or more, give the ISE Board written notice of such ownership
stating: (1) Such Person's full legal name; (2) such Person's title
or status and the date on which such title or status was acquired;
(3) such Person's approximate ownership interest in the Exchange;
and (4) whether such Person has the power, directly or indirectly,
to direct the management or policies of the Exchange, whether
through ownership of securities, by contract or otherwise. Each such
Person must notify the ISE Board of any changes in ownership except
when such change is an increase or decrease of less than 1 percent
in the ownership percentage so reported (such increase or decrease
to be measured cumulatively from the amount shown on the last such
report) unless any increase or decrease of less than 1 percent
results in such Person so owning more or less than 20 percent or
more than 40 percent of the shares of any class or series of capital
stock then outstanding (at a time when such Person so owned less
than such percentages), as the case may be. The Exchange represents
that it also will consider, among other things, any filings made
with the Commission under Section 13(d) and Section 13(g) of the Act
by such Person and its Related Persons and will aggregate all shares
owned or voted by such Person and its Related Persons deemed to be
beneficially owned by them. For information on ISE's current
principal stockholders, see also the Registration Statement,
``Principal and Selling Stockholders.''
---------------------------------------------------------------------------
The Exchange represents that it would apply standard corrective
procedures used by public companies with similar
[[Page 3236]]
ownership limits if any Person, alone or together with its Related
Persons, purports to sell, transfer, assign or pledge any shares of
capital stock in the Exchange in violation of the ownership limits.
Specifically, pursuant to the Amended Certificate, any such sale,
transfer, assignment or pledge would be void, and that number of shares
in excess of the ownership limitation would be deemed to have been
transferred to the Exchange, as special trustee of a charitable trust,
for the exclusive benefit of a charitable beneficiary to be determined
by the Exchange.\37\ These corrective procedures also would apply if
there is any other event causing any holder of capital stock to exceed
the ownership limits, such as a repurchase of shares by the
Exchange.\38\ The automatic transfer would be deemed to be effective as
of the close of business on the business day prior to the date of the
violative transfer or other event.
---------------------------------------------------------------------------
\37\ See Article Fourth, Subdivision III(c) of the Amended
Certificate. The Exchange may also determine to appoint as special
trustee an entity unaffiliated with the Exchange and any Person or
its Related Persons owning excess shares. See Article Fourth,
Subdivision III(c)(ii) of the Amended Certificate.
\38\ Any holders owning excess shares as a result of any event
other than a sale, transfer, assignment or pledge would cease to
have rights in such shares.
---------------------------------------------------------------------------
The special trustee of the trust would be required to sell the
excess shares to a person whose ownership of shares is not expected to
violate the ownership limitations, subject to the right of the Exchange
to repurchase those shares.\39\ The net proceeds of the sale would be
distributed first to the original prohibited transferee or holder, who
would receive the lesser of (1) the price per share received by the
Exchange from the transfer of the excess shares, (2) the price per
share the prohibited transferee or holder paid for the shares in the
violative transfer, or (3) if the prohibited transferee or holder did
not give value for such excess shares, a price per share equal to the
market price for the excess shares on the date of the purported
transfer or other event that resulted in the excess shares, except that
in the case of a prohibited holder holding excess shares solely as the
result of an action or event by the Exchange (such as an action
resulting in a reduction in the number of outstanding shares), such
prohibited holder would receive the greater of (1) or (3) above for the
excess shares. After such distribution, any proceeds in excess of the
amount payable to the prohibited transferee or holder would be payable
to the charitable beneficiary. Prior to the sale, the special trustee
would be entitled to receive, in trust for the beneficiary, all
dividends and other distributions paid by the Exchange with respect to
the excess shares, and also would be entitled to exercise all voting
rights with respect to the excess shares.\40\
---------------------------------------------------------------------------
\39\ See infra note 41 and accompanying text.
\40\ Any excess shares held by the special trustee would be
entitled to be voted by the special trustee and would be deemed
outstanding for purposes of determining a quorum or minimum vote
required for the transaction of any business at any stockholders'
meeting. See Article Fourth, Subdivision III(c)(v) of the Amended
Certificate.
---------------------------------------------------------------------------
In addition, excess shares (including any shares deemed to be
excess shares by reason of a reduction in outstanding shares caused by
a purchase of excess shares by the Exchange) would be deemed to have
been offered for sale to the Exchange.\41\ The Exchange shall have the
right to accept such offer until the special trustee has sold the
shares held in the charitable trust.\42\ If the Exchange accepts such
offer, it would determine the additional number of shares (if any) that
become excess shares by reason of the reduction in outstanding shares
caused by the Exchange's purchase of excess shares (whether any Person,
either alone or together with its Related Persons, holds such excess
shares in connection with a purported transfer or is deemed to hold
such excess shares as a result of the Exchange's purchase of excess
shares) and take all action reasonably necessary to ensure that such
additional excess shares are added to the initial number of excess
shares subject to the Exchange's corrective procedures.\43\
---------------------------------------------------------------------------
\41\ The excess shares would be deemed to be offered to the
Exchange at a price per share equal to the lesser of (1) the price
per share the purported transferee or holder paid for the shares in
the purported transfer or other event that resulted in excess shares
(or in the case of an event not involving any payment, the market
price at the time of the transfer or other event) and (2) the market
price of the shares on the date the Exchange accepts such offer. The
Exchange may accept the offer in whole or in part.
\42\ See Article Fourth, Subdivision III(c)(vi) of the Amended
Certificate.
\43\ The Exchange believes that this mechanism will prevent
repeated violations (i.e., an endless loop) of the ownership
provisions in connection with repurchases by the Exchange (both
generally and with respect to excess shares). In practice, the
Exchange represents that it would structure repurchases, if any, in
a manner designed not to trigger any new violations of the ownership
restrictions set forth in Article Fourth, Subdivision III, or if
triggered, to include such new violations in its repurchase. For
example, if there were 100 shares of Class A Common Stock
outstanding and two members of the Exchange (Member A and Member B)
each currently owned 20% of the outstanding shares of Class A Common
Stock, and Member A purchased 5 shares of Class A Common Stock
(increasing his ownership to 25%), the Exchange could either (a)
repurchase the 5 shares from Member A and permit the special trustee
to sell one share from Member A and one share from Member B to third
parties or (b) repurchase 9 shares of Class A Common Stock from
Member A and 3 shares of Class A Common Stock from Member B, all of
which would be deemed excess shares pursuant to the mechanism
described above.
---------------------------------------------------------------------------
As applied to the current outstanding capital stock of the
Exchange, the 40 percent ownership limitation would apply to any holder
of Class A Common Stock, other than an Exchange member. The 20 percent
member ownership limitation would apply to any member, and would limit
to that amount such holder's ownership of each of the Class A Common
Stock and each Series of Class B Common Stock. The Exchange represents
that currently no Person, either alone or together with its Related
Persons, owns more than 40 percent of the outstanding shares of Class A
Common Stock, and no member, either alone or together with its Related
Persons, owns more than 20 percent of the outstanding shares of Class A
Common Stock or any series of Class B Common Stock.\44\
---------------------------------------------------------------------------
\44\ See Amendment No. 2, supra note 4.
---------------------------------------------------------------------------
b. Voting Limitations. The proposed rule change would prohibit any
Person, either alone or together with its Related Persons, from voting,
or causing the voting of, shares of capital stock of the Exchange (or
giving a consent or proxy with respect to shares) representing more
than 20 percent of the voting power of any class or series of capital
stock (the ``20 percent voting limitation'').\45\ In the event that a
stockholder purports to vote, grant any proxy or enter into any other
agreement for the voting of shares that would violate the 20 percent
voting limitation, such vote, proxy or agreement would not be honored
by the Exchange to the extent that the 20 percent voting limitation
provision would be violated. The 20 percent voting limitation would not
apply to any solicitation of any revocable proxy from any stockholder
of the Exchange by the Exchange or by any
[[Page 3237]]
stockholder of the Exchange pursuant to Regulation 14A under the
Act.\46\
---------------------------------------------------------------------------
\45\ The 20 percent voting limitation also would prohibit any
Person, either alone or together with its Related Persons, from
entering into any agreement, plan or other arrangement with another
Person that would result in the shares of any class or series of
capital stock that are subject to such agreement, plan or
arrangement not being voted on any matter or matters where the
effect of such agreement, plan or other arrangement would be to
enable any Person to vote, possess the right to vote or cause the
voting of shares of any class or series of capital stock that would,
as a result thereof, represent more than 20 percent of any class or
series of capital stock available to be voted.
The Amended Certificate and the Amended Constitution clarify
that only those shares entitled to vote would be counted for
purposes of determining a quorum or a minimum vote required for the
transaction of any business at any stockholders' meeting, including,
without limitation, when specified business is to be voted on by a
class or a series voting as a class. See Article Fourth, Subdivision
III(b)(iii) of the Amended Certificate and Section 2.4 of the
Amended Constitution. See also Amendment No. 2, supra note 4.
\46\ See Amended Certificate, Article Fourth, Subdivision
III(b).
---------------------------------------------------------------------------
c. Board Notice Regarding Certain Limitations. The proposed rule
change would impose certain requirements on Persons to give notice of
events regarding ownership that would exceed the proposed ownership or
voting threshold. Specifically, any Person intending to exceed these
ownership or voting limitations must provide the ISE Board with written
notice of the fact at least 45 days (or such shorter period to which
the Board expressly consents) prior to either the proposed acquisition
of shares or the proposed exercise of voting rights, as the case may
be.\47\
---------------------------------------------------------------------------
\47\ See Amended Certificate, Article Fourth, Subdivisions
III(a)(i)(E) and (b)(i).
---------------------------------------------------------------------------
d. Board Waiver of Certain Limitations. The ISE Board may adopt a
resolution specifying that it has determined that the 40 percent
ownership limitation or the 20 percent voting limitation or both should
be waived if it finds that such waiver (1) will not impair the ability
of the Exchange to carry out its functions and responsibilities as an
``exchange'' under the Act; (2) is otherwise in the best interests of
the Exchange and its stockholders; (3) will not impair the ability of
the Commission to enforce the Act; and (4) will apply to a Person and
its Related Persons who are not subject to any applicable ``statutory
disqualification'' (within the meaning of Section 3(a)(39) of the Act).
In the event of such a finding, the waiver would take the form of an
amendment to the Constitution, which would not be effective until
approved by the Commission. The Board may not waive the 20 percent
member ownership limitation.\48\
---------------------------------------------------------------------------
\48\ See Amended Certificate, Article Fourth, Subdivisions
III(a)(i)(B) and (b)(i).
---------------------------------------------------------------------------
e. Elimination of Founders Exemption. The Amended Certificate also
eliminates the ``founders exemption'' that permitted the original
founders of the Exchange to own shares of Class A Common Stock and
Class B Common Stock in excess of the stated limits for a certain
period of time.\49\ The Exchange represents that because all of the
founders have fallen below the ownership thresholds in place, the
exemption is no longer necessary.
---------------------------------------------------------------------------
\49\ The founders exemption, which applied to persons or
entities that purchased LLC memberships directly from the Exchange
on or prior to August 1, 1998 and extended to May 26, 2010, was
approved by the Commission in connection with the Exchange's
demutualization in 2002. See supra note 9.
---------------------------------------------------------------------------
4. Exchange Act Obligations
The proposed rule change would provide that the ISE Board shall, in
managing the affairs and business of the Exchange, consider
requirements applicable to its registration and operation as a national
securities exchange under the Act, including without limitation, the
requirements that (a) the rules of the Exchange be designed to protect
investors and the public interest, and (b) the Exchange be so organized
and have the capacity to carry out the purposes of the Act and (subject
to such exceptions as are set forth in the Act or the rules and
regulations thereunder) to enforce compliance by its members and
persons associated with its members with the provisions of the Act, the
rules and regulations thereunder, and the rules of the Exchange. These
provisions in the Amended Certificate shall not be construed to create
the basis for any cause of action against any director, and no director
shall be liable, by virtue of these provisions, for such director's
consideration or failure to consider the matters referred to
therein.\50\
---------------------------------------------------------------------------
\50\ See Amended Certificate, Article Twelfth.
---------------------------------------------------------------------------
5. Board Committees
The proposed rule change would include provisions relating to
specific Board committees in connection with the contemplated listing
of the Exchange on a national securities exchange or national
securities association following its IPO. In particular, the Exchange
proposes to add the Corporate Governance Committee and the Compensation
Committee to its list of specifically designated ISE Board committees
in the Amended Constitution, and require that each of the Finance &
Audit, Corporate Governance and Compensation Committees be governed by
charters.\51\
---------------------------------------------------------------------------
\51\ See Amended Constitution, Sections 5.4, 5.5 and 5.6. The
Exchange represents that it currently has a Corporate Governance and
Compensation Committee, designated by the ISE Board pursuant to its
authority under Section 5.1 of the Constitution; the Amended
Constitution will specifically provide for these committees.
---------------------------------------------------------------------------
6. Certain Anti-Takeover Provisions
The Exchange proposes that the Amended Certificate and the Amended
Constitution include certain anti-takeover provisions for protection
against certain types of coercive corporate takeover practices and
inadequate takeover bids. The proposed provisions relate to special
meetings of stockholders and the required stockholder vote with respect
to certain actions. In view of the limitations on ownership and voting
described above, the provisions proposed do not include a ``poison
pill'' arrangement. The Exchange represents that the ISE Board does,
however, maintain the authority under its current organizational
documents to adopt such an arrangement with Commission approval.
a. Elimination of a Stockholder's Right to Call a Special Meeting.
The Exchange proposes to deny the Exchange's stockholders the right to
call a special meeting of stockholders, and provide that only the
Chairman of the Board or a majority of the Board may call a special
meeting of the stockholders.\52\
---------------------------------------------------------------------------
\52\ See Amended Certificate, Article Eighth and Amended
Constitution, Section 2.2.
---------------------------------------------------------------------------
b. Advance Notice Requirement for Stockholder Proposals. The
Amended Constitution establishes advance notice procedures with regard
to stockholder proposals relating to the nomination of candidates for
election as Non-Industry Directors or new business to be brought before
meetings of stockholders. The Exchange's advance notice requirement
would not apply to nominations of Industry Director nominees for
election to the Board by the Exchange's Nominating Committee (which is
not a committee of the Board) or stockholders pursuant to Sections
3.10(a) and 5.3(c) of the Constitution.
Following the IPO, pursuant to the Exchange's Corporate Governance
Committee charter and Section 3.10(b) of the Constitution, the
Corporate Governance Committee would nominate for election to the Board
a slate of Non-Industry Directors pursuant to Section 2.7(a) and
(b).\53\ These procedures also provide that notice of stockholder
nominations for election of Non-Industry Directors and stockholder
proposals must be given in writing to the Secretary of the Exchange
prior to the meeting at which the action is to be taken.\54\ Generally,
such notice would have to be received at the principal executive
offices of the Exchange not fewer than 60 days nor more than 90 days
prior to the meeting. Any such notice must comply with certain
additional informational and descriptive requirements set out in the
Amended
[[Page 3238]]
Constitution.\55\ Additionally, stockholders shall comply with all
applicable requirements of the Act and the rules and regulations
thereunder with respect to any proposals submitted pursuant to the
advance notice procedures.\56\
---------------------------------------------------------------------------
\53\ Class A stockholders also would be able to nominate Non-
Industry Directors pursuant to Sections 2.7 and 3.10(b) of the
Constitution.
\54\ With the institution of Section 2.7 of the Amended
Constitution, Non-Industry Director nominations by Class A
stockholders will likely be required to be made in advance of the
selection or announcement of a slate of Non-Industry Director
candidates by the Corporate Governance Committee. Currently, Non-
Industry Director nominations by Class A stockholders must be made
in advance of the stockholders' meeting, but generally after the
Corporate Governance Committee announces its slate.
\55\ In particular, the notice must set forth (1) as to each
person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Act, including such person's
written consent to being named in the proxy statement as a nominee
and to serving as a director if elected and a statement that such
nominee complies with the requirements set forth in the Amended
Certificate; (2) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made; and (3) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner. See Amended Constitution,
Section 2.7.
\56\ See Amended Constitution, Section 2.7. Previously, Section
2.7 of the Constitution addressed stockholder record dates; that
matter will now be addressed in Section 7.4 of the Amended
Constitution.
---------------------------------------------------------------------------
The requirement in Section 2.7(c) of the Amended Constitution,
which states that only persons who are nominated in accordance with the
procedures set forth in Section 2.7 shall be eligible to serve as
directors, will not apply to nominations of Industry Director nominees
for election to the Board. Such Industry Directors are, instead,
nominated by the Exchange's Nominating Committee (which is not a
committee of the Board) or stockholders pursuant to Sections 3.10(a)
and 5.3(c) of the Constitution.
c. Increase in Required Vote for Certain Stockholder Actions. In
addition to other currently required items,\57\ the Amended Certificate
would require a two-thirds vote of stockholders to amend, repeal or
adopt any provisions inconsistent with (1) the limitations on ownership
and voting of capital stock contained in the Amended Certificate, as
described above in Section II.B.3, (2) the provision in the Amended
Certificate providing the Board with the authority to create and issue
rights under a rights plan, and (3) the advance notice provision
contained in the proposed Amended Constitution as described above in
Section II.B.6.b.\58\
---------------------------------------------------------------------------
\57\ Pursuant to the Certificate of Incorporation, Article
Seventh (b), the affirmative vote of the holders of at least two-
thirds of the voting power of the then outstanding shares of Class A
Common Stock shall be required to amend, repeal or adopt Article
Seventh of the Certificate of Incorporation or Sections 2.2, 2.4,
2.5, 2.9, 3.2, 3.3, 3.5 or Article XI of the Constitution.
\58\ See Amended Certificate, Article Seventh.
---------------------------------------------------------------------------
7. Reduction in Votes Required To Approve Amendments to the Amended
Constitution
The Exchange proposes that the current vote required to approve
amendments to the Constitution be reduced from two-thirds of the voting
power of each class of capital stock of ISE entitled to vote on such
amendment to a majority vote of the voting power of each class or
series of stock entitled to vote, voting together as a single class, in
order to amend certain provisions of the Amended Constitution that are
not subject to a required two-thirds vote under the Amended
Certificate.\59\ Such amendments to the current Constitution may be
accomplished by a two-thirds vote of the stockholders or by action of
the Board. The two-thirds vote requirement for an amendment to the
current Constitution was deemed appropriate for a private securities
exchange owned primarily by its members, in order to assure substantial
agreement as to changes in significant aspects of corporate governance.
However, the Exchange believes that the continuation of such a high
vote requirement, in the context of a publicly traded company with a
widely diverse stockholder base and the likelihood of lower voting
participation, makes it unduly difficult to effect any necessary
changes by stockholder vote to these corporate governance provisions in
the future.
---------------------------------------------------------------------------
\59\ See Amended Certificate, Article Seventh and Amended
Constitution, Section 11.1.
---------------------------------------------------------------------------
8. Confidential Information and Books and Records
Pursuant to the Amended Certificate, all confidential information
pertaining to the self-regulatory function of the Exchange (including
but not limited to disciplinary matters, trading data, trading
practices and audit information) contained in the books and records of
the Exchange shall: (1) Not be made available to any Persons other than
to those officers, directors, employees and agents of the Exchange that
have a reasonable need to know the contents thereof and to the
Commission; and (2) be retained in confidence by the Exchange and the
officers, directors, employees and agents of the Exchange; and (3) not
be used for any commercial purposes.\60\ In addition, the ISE's books
and records shall be maintained within the United States.\61\
---------------------------------------------------------------------------
\60\ See Amended Certificate, Article Thirteenth.
\61\ See Amended Constitution, Section 1.3.
---------------------------------------------------------------------------
C. Amendment to ISE Rule 303
The Exchange proposes to amend ISE Rule 303(b) to include the
member trading concentration limit currently included in the
Constitution. Currently, pursuant to Section 14.1(b) of the
Constitution, no Member (as defined in the Constitution), together with
any affiliate (as defined in the Constitution), may be approved to
exercise trading rights associated with more than 20 percent of Series
B-1 Stock or Series B-2 Stock (the ``member trading concentration
limit''). Section 14.1(b) also permits the Exchange to establish
further limitations relating to its approval of a Member's ability to
effect transaction on or through the facilities of ISE. Article XIV of
the Constitution, including Section 14.1(b), is being deleted from the
Amended Constitution. Rule 303 currently provides for a stricter member
trading concentration limit than 20% but permits the ISE Board to waive
such member trading concentration limit for good cause shown.\62\ The
Exchange proposes to amend Rule 303(b) to include the member trading
concentration limit currently provided for in Section 14.1(b) and to
state that the Board shall not waive the Exchange's member trading
concentration limit if such a waiver would result in the applicant or
approved Member (as defined in the Constitution) (together with any of
its affiliates) being approved to exercise the trading privileges
associated with more than 20% of the outstanding Primary Market Maker
memberships (which memberships are associated with the shares of Series
B-1 Stock as set forth in Article XIII of the Amended Certificate) or
more than 20% of the outstanding Competitive Market Maker memberships
(which memberships are associated with the shares of Series B-2 Stock
as set forth in Article XIII of the Amended Constitution). Rule 303(b),
as amended, will not permit the Exchange to establish further
limitations, as the current Constitution does. ISE represents that the
amendment to Rule 303(b) will enable the Exchange and the Commission to
protect the integrity of the Exchange's and the Commission's regulatory
oversight responsibilities in much the same way as the proposed
ownership and voting limitations discussed above will.\63\
---------------------------------------------------------------------------
\62\ See infra Section IV.D for further discussion of the
current requirements of ISE Rule 303.
\63\ See Amendment No. 2, supra note 4.
---------------------------------------------------------------------------
[[Page 3239]]
III. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning Amendment No. 2, including whether this submission
is consistent with the Act. Comments may be submitted by any of the
following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or send an e-mail to rule-
comments@sec.gov. Please include File Number SR-ISE-2004-29 on the
subject line.
Paper Comments
Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW.,
Washington, DC 20549-0609.
All submissions should refer to File Number SR-ISE-2004-29. This
file number should be included on the subject line if e-mail 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 (https://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 inspection
and copying in the Commission's Public Reference Section, 450 Fifth
Street, NW., Washington, DC 20549. Copies of such filing also will be
available for inspection and copying at the principal office of the
ISE. 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 Amendment No. 2 of
File Number SR-ISE-2004-29 and should be submitted on or before
February 10, 2005.
IV. Discussion
The Commission has considered the ISE's proposed rule change, as
amended, and finds that the proposal is consistent with the Act and the
rules and regulations thereunder applicable to a national securities
exchange.\64\ In particular, the Commission finds that the proposal is
consistent with Section 6(b)(1) of the Act,\65\ which requires a
national securities exchange to be so organized and have the capacity
to be able to carry out the purposes of the Act and to enforce
compliance by its members and persons associated with its members with
the provisions of the Act, the rules or regulations thereunder, and the
rules of the Exchange. In addition, the Commission finds that the
proposed rule change is consistent with Section 6(b)(5) of the Act,\66\
which requires, among other things, that the rules of an exchange be
designed to promote just and equitable principles of trade; to
facilitate transactions in securities; to remove impediments to and
perfect the mechanisms of a free and open market and a national market
system; and, in general, to protect investors and the public interest.
---------------------------------------------------------------------------
\64\ In approving the proposed rule change, the Commission has
considered its impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
\65\ 15 U.S.C. 78f(b)(1).
\66\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Commission discusses below significant aspects of the proposed
rule change.
A. Exchange Governance Structure
The proposed rule change would clarify in the Amended Constitution
that the ISE Board, in addition to an Executive Committee, has a
Corporate Governance Committee, Finance & Audit Committee \67\ and
Compensation Committee. The Exchange also has a Nominating Committee
which is not a committee of the ISE Board. Pursuant to the Amended
Constitution, each of the Finance & Audit and Compensation Committees
will be comprised of three (3) and no more than five (5) Non-Industry
Directors. The Corporate Governance Committee will be comprised of
three (3) and no more than eight (8) Non-Industry Directors. The ISE
Board will adopt a charter setting forth the responsibilities of each
of these committees.\68\ The Commission notes that information about
the existence of the Corporate Governance and Compensation Committee
was previously not widely available or specified in the Constitution.
Thus, the proposed amendments would serve to increase transparency with
respect to these key committees and, thus, serve to improve their
accountability to the benefit of the Exchange and the investing public.
The Exchange also has proposed certain other changes to facilitate its
conversion to a public company.\69\
---------------------------------------------------------------------------
\67\ The Finance & Audit Committee is referred to as the Audit
Committee under the current Constitution. See Section 5.4 of the
Constitution.
\68\ See Sections 5.4, 5.5 and 5.6 of the Amended Constitution.
\69\ See supra Section II.B for a discussion of the other
proposed changes.
---------------------------------------------------------------------------
The Commission generally believes ISE's proposed changes should
serve to strengthen and improve the Exchange's governance structure and
are consistent with the Act. The Commission notes, however, that it is
in the process of reviewing a range of governance issues relating to
self-regulatory organizations (``SROs''), including possible steps to
strengthen the framework for the governance of SROs and ways to improve
the transparency of the governance procedures of all SROs and has
proposed rules in furtherance of this goal.\70\ Depending upon the
results of the proposed rules, the ISE may be required to make further
changes to further strengthen its governance structure. The Commission
also believes that the ISE Board should continue to monitor and
evaluate the Exchange's governance structure and processes on an
ongoing basis, and propose further changes as appropriate.
---------------------------------------------------------------------------
\70\ See Securities Exchange Act Release No. 50699 (November 18,
2004), 69 FR 71126 (December 8, 2004).
---------------------------------------------------------------------------
B. Changes in Control of the ISE
The proposed Amended Certificate would impose limitations on direct
and indirect changes in control of the ISE through voting and ownership
limitations placed on ISE's capital st
