Self-Regulatory Organizations; NYSE MKT, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the Constituent Documents of Its Intermediate Parent Companies NYSE Holdings, LLC., Intercontinental Exchange, Inc., To Eliminate Certain Provisions That by Their Terms Have Become Void and Are of No Further Force and Effect as a Result of the Sale by ICE of Euronext N.V. in June 2014 and Make Conforming Changes to the Independence Policy of the Board of Directors of ICE, 28315-28319 [2015-11872]
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Federal Register / Vol. 80, No. 95 / Monday, May 18, 2015 / Notices
asabaliauskas on DSK5VPTVN1PROD with NOTICES
which it was filed, or such shorter time
as the Commission may designate, it has
become effective pursuant to Section
19(b)(3)(A) of the Act and Rule 19b–
4(f)(6) thereunder.18
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 19 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 20
permits the Commission to designate a
shorter time if such action is consistent
with the protection of investors and the
public interest. The Exchange has asked
the Commission to waive the 30-day
operative delay so that the proposal may
become operative immediately upon
filing. The Exchange notes that such
waiver would accommodate the timing
of the effectiveness under the Delaware
General Corporation Law of the Second
Amended and Restated Certificate of
Incorporation of ICE, which the
Exchange represents will be filed in
Delaware upon approval by the
stockholders of ICE at the annual
meeting of stockholders scheduled for
May 2015. The Exchange believes that
waiving the 30-day operative delay
would permit the modifications to occur
at an earlier time and thereby reduce the
potential for confusion among persons
reading the Constituent Documents. The
Commission believes that waiving the
30-day operative delay is consistent
with the protection of investors and the
public interest. Therefore, the
Commission hereby waives the
operative delay and designates the
proposed rule change operative upon
filing.21
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
should be approved or disapproved.
18 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires a self-regulatory organization to
give the Commission written notice of its intent to
file the proposed rule change, along with a brief
description and the text of the proposed rule
change, at least five business days prior to the date
of filing of the proposed rule change, or such
shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
19 17 CFR 240.19b–4(f)(6).
20 17 CFR 240.19b–4(f)(6)(iii).
21 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
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IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015–11871 Filed 5–15–15; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEArca–2015–33 on the subject line.
Paper Comments
• Send paper comments in triplicate
to Brent J. Fields, Secretary, Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEArca–2015–33. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (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 Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEArca–2015–33, and should be
submitted on or before June 8, 2015.
PO 00000
[Release No. 34–74930; File No. SR–
NYSEMKT–2015–32]
Self-Regulatory Organizations; NYSE
MKT, LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Amending the
Constituent Documents of Its
Intermediate Parent Companies NYSE
Holdings, LLC., Intercontinental
Exchange, Inc., To Eliminate Certain
Provisions That by Their Terms Have
Become Void and Are of No Further
Force and Effect as a Result of the
Sale by ICE of Euronext N.V. in June
2014 and Make Conforming Changes
to the Independence Policy of the
Board of Directors of ICE
May 12, 2015.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that, on May 1,
2015, NYSE MKT LLC (the ‘‘Exchange’’
or ‘‘NYSE MKT’’) filed with the
Securities and Exchange Commission
(the ‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by the self-regulatory organization. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of the Substance
of the Proposed Rule Change
The Exchange proposes to amend the
constituent documents of its
intermediate parent companies NYSE
Holdings LLC, a Delaware limited
liability company (‘‘NYSE Holdings’’),
and Intercontinental Exchange
Holdings, Inc., a Delaware corporation
(‘‘ICE Holdings’’), and its ultimate
parent company, Intercontinental
Exchange, Inc., a Delaware corporation
(‘‘ICE’’), to eliminate certain provisions
that by their terms have become void
and are of no further force and effect as
a result of the sale by ICE of Euronext
N.V. (‘‘Euronext’’) in June 2014. NYSE
MKT also seeks approval of conforming
22 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
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Federal Register / Vol. 80, No. 95 / Monday, May 18, 2015 / Notices
changes to the Independence Policy of
the Board of Directors of ICE (the
‘‘Independence Policy’’). The text of the
proposed rule change is available on the
Exchange’s Web site at www.nyse.com,
at the principal office of the Exchange,
and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of those statements may be examined at
the places specified in Item IV below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
asabaliauskas on DSK5VPTVN1PROD with NOTICES
1. Purpose
NYSE MKT requests approval to
amend the constituent documents of its
intermediate parent companies NYSE
Holdings and ICE Holdings, and of its
ultimate parent company, ICE, to
eliminate certain provisions that by
their terms have become void and are of
no further force and effect as a result of
the sale by ICE of Euronext in June
2014, upon consummation of which
ICE, ICE Holdings and NYSE Holdings
ceased to control Euronext.3 NYSE MKT
also requests approval of conforming
changes to the Independence Policy.4
NYSE MKT believes the proposed
changes are desirable to avoid the
3 ICE, a public company listed on the New York
Stock Exchange (‘‘NYSE’’), owns 100% of ICE
Holdings, which in turn owns 100% of NYSE
Holdings. Through ICE Holdings, NYSE Holdings
and NYSE Group, Inc., ICE indirectly owns (1)
100% of the equity interest of three registered
national securities exchanges and self-regulatory
organizations (together, the ‘‘NYSE Exchanges’’)—
NYSE, NYSE Arca, Inc. (‘‘NYSE Arca’’) and NYSE
MKT—and (2) 100% of the equity interest of NYSE
Market (DE), Inc., NYSE Regulation, Inc., NYSE
Arca L.L.C. and NYSE Arca Equities, Inc. ICE also
indirectly owns a majority interest in NYSE Amex
Options LLC. See Exchange Act Release No. 70210
(August 15, 2013), 78 FR 51758 (August 21, 2013)
(SR–NYSE–2013–42; SR–NYSEMKT–2013–50; SR–
NYSEArca–2013–62) (‘‘Release No. 70210’’)
(approving proposed rule change relating to a
corporate transaction in which NYSE Euronext will
become a wholly owned subsidiary of
Intercontinental Exchange Group, Inc.).
4 NYSE MKT’s affiliates NYSE and NYSE Arca
have also submitted the same proposed rule change.
See SR–NYSE–2015–18 and SR–NYSEArca–2015–
33.
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potential for confusion that could arise
if ICE, ICE Holdings and NYSE Holdings
were to retain in their constituent
documents or in the Independence
Policy provisions that are no longer
operative.
Background
In 2007, NYSE MKT’s direct parent,
NYSE Group Inc. (‘‘NYSE Group’’),
entered into a business combination
transaction with Euronext N.V.
(‘‘Euronext’’) in which NYSE Group and
Euronext became wholly owned
subsidiaries of a newly formed
company, NYSE Euronext, a Delaware
corporation. The Certificate of
Incorporation and Bylaws of NYSE
Euronext included provisions (a)
requiring NYSE Euronext and its board
of directors to give due consideration to
requirements of European law and
regulation applicable to the operation of
Euronext’s European business; (b)
requiring NYSE Euronext and its board
of directors to cause Euronext’s
subsidiaries to operate in compliance
with applicable law and regulation and
to cooperate with European regulators;
(c) relating to board compositions and
similar matters; and (d) prohibiting the
amendment of such provisions without
a supermajority vote of the directors in
light of Euronext’s minority
representation on the board
(collectively, the ‘‘European
Provisions’’). NYSE Euronext’s
Certificate of Incorporation and Bylaws
also included provisions for the
automatic suspension or voiding of the
European Provisions under specified
circumstances, including circumstances
under which NYSE Euronext no longer
exercised a controlling interest (as
therein defined) over Euronext (the
‘‘Voiding Provisions’’).5
In 2013, ICE Holdings (then known as
IntercontinentalExchange, Inc.) entered
into a business combination transaction
with NYSE Euronext in which ICE
Holdings and NYSE Holdings (then
known as NYSE Euronext Holdings
LLC), as successor to NYSE Euronext,
became wholly owned subsidiaries of a
newly formed company, ICE (then
known as IntercontinentalExchange
Group, Inc.). In connection with this
transaction, the European Provisions
and the Voiding Provisions were
modified as they applied to NYSE
Holdings and were incorporated, in
substantially the same modified form,
into the Certificate of Incorporation and
Bylaws of ICE, along with the Voiding
Provisions. In relevant part, the Voiding
5 See Exchange Act Release No. 55293026 [sic]
(February 14, 2007), 72 FR 8033 (Feb. 22, 2007)
(SR–NYSE–2006–120).
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Provisions applicable to ICE and NYSE
Holdings were modified to specify that
the European Provisions would
automatically become void and be of no
further force and effect if at any time
ICE or NYSE Holdings, as the case may
be, ceased to ‘‘control’’ Euronext, with
‘‘control’’ defined under International
Financial Reporting Standard 10 (as in
force at its date of first effectiveness on
January 1, 2014), and with cessation of
control subject to confirmation from the
entity’s registered public accountants
and to a public disclosure requirement.6
In March 2014, in preparation for its
announced plan to sell Euronext, ICE
contributed its ownership of NYSE
Holdings to ICE Holdings, and in
connection therewith the Certificate and
Bylaws of ICE Holdings were amended
to incorporate the modified European
Provisions and the modified Voiding
Provisions.7 The Certificate of
Incorporation and Bylaws of ICE and of
ICE Holdings, and the Limited Liability
Company Agreement of NYSE Holdings
are referred to collectively as the
‘‘Constituent Documents’’.
In June 2014, ICE consummated the
sale of substantially all of its interest in
Euronext and, accordingly, ceased to
control Euronext within the meaning of
the Voiding Provisions. As a result, the
Voiding Provisions in each of the
Constituent Documents were triggered,
and the European Provisions in the
Constituent Documents automatically
became void and are of no further force
and effect.8
NYSE MKT accordingly proposes to
make the following changes to the
constituent documents of ICE, ICE
Holdings and NYSE Holdings:
Certificate of Incorporation of ICE.
The Amended and Restated Certificate
of Incorporation of ICE would be further
amended and restated as set forth in
Exhibit 5A to update the recitals in the
initial certification and to eliminate the
following provisions, which have
become void and without further force
and effect by operation of the indicated
section because ICE no longer controls
Euronext:
• Pursuant to Art. XIII, Section A.2.,
the following provisions are void and
would be deleted: Art. V, Section
A.2.(d); Art. V, Section A.3.(a)(ii),
6 See Exchange Act Release No. 70210, 78 FR at
51758.
7 See Exchange Act Release No. 71721 (Mar. 13,
2014), 79 FR 15367 (Mar. 19, 2014) (SR–NYSE–
2014–04; SR–NYSEMKT–2014–10; SR–NYSEArca–
2014–08).
8 See Exchange Act Release No. 73740 (Dec. 4,
2014), 79 FR 73362 (Dec. 10, 2014) (‘‘Release No.
73740’’) (SR–NYSE–2014–53; SR–NYSEMKT–
2014–83; SR–NYSEArca–2014–112), for additional
information about the events that resulted in the
triggering of the Voiding Provisions.
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(a)(iii)(z), (b)(ii), (c)(i)(y) and (d)(i)(y);
Art. V, Section A.4.(b), A.8, A.9, A.10
and A.11; Art. V, Section B.2.(d); Art. V,
Section B.3.(a)(ii), (a)(iii)(z), (b)(ii), (b)(y)
and (c)(ii); Art. VII, clause (B); and Art.
X, clause (B).
• In addition, the phrases ‘‘or any
European Market Subsidiary (as defined
below)’’ has been deleted from Art. V,
Section A.1., and the phrase ‘‘or any
European Market Subsidiary’’ has been
deleted from Art. V, Section B.1., in
each case because the phrase refers to a
term that is no longer used in the
document.
• In Art. V, Section A.3.(a)(i), a
reference has been added to ICE
Holdings and the erroneous name NYSE
Euronext LLC has been corrected to
refer to NYSE Holdings LLC.
Additionally, references to ICE Holdings
and NYSE Holdings have been added to
Art. V, Section B.3.(a)(i). These matters
were previously addressed in the last
sentence of Section 3.15(g) of the
Bylaws of ICE.
• Art. XIII itself is deleted because its
sole purpose was to define the
circumstances under which ICE would
no longer control Euronext and to
specify the provisions that became void
upon such event. NYSE MKT believes it
would be confusing to retain Art. XIII
because it refers to events that have
occurred and to provisions that will
have been deleted.
• Art. XIV, establishing an effective
time for the document, has been deleted
because the effective time is addressed
in the initial certification.
Bylaws of ICE. The Fourth Amended
and Restated Bylaws of ICE would be
further amended and restated as set
forth in Exhibit 5B to eliminate the
following provisions, which have
become void and without further force
and effect by operation of the indicated
section because ICE no longer controls
Euronext:
• Pursuant to Section 10.9(b)(3), the
following provisions are void and
would be deleted: Sections 3.14(a)(1),
3.14(b)(2), 3.14(b)(4), 3.14(b)(6), 7.2,
8.1(b), 8.2(b), 8.2(c)(2), 8.3(b), 8.3(d),
8.5, 9.2, 9.5, and 10.8; each occurrence
of the words ‘‘pursuant to a resolution
adopted by at least 75% of the directors
then in office’’ in Section 3.1; and
additionally Sections 3.15(a), 3.15(b),
3.15(c), 3.15(d), 3.15(e), 3.15(f), 11.1(b),
11.2(b) and 11.3(A).
• In Section 3.1, where the reference
to 75% of the directors then in office is
eliminated, the standard for setting the
number of directors is set to a majority
of the directors then in office, which
was the standard in effect at NYSE
Group prior to the Euronext transaction
in 2007.
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• In Section 3.5, a provision calling
for one board meeting to be held in
Europe in each year is deleted. This
provision was included to accommodate
the interests of the Euronext-affiliated
directors and, while it was not
identified for automatic deletion, ICE
views the requirement as imposing an
unnecessary expense on ICE and
believes the venue of meetings should
be in the discretion of management.
• The last sentence of Section 3.15(g)
(which will be redesignated Section
3.15) is deleted for the reasons
discussed above under ‘‘Certificate of
Incorporation of ICE’’.
• Section 8.6, applicable to records
that relate to both a European Market
Subsidiary and a U.S. Regulated
Subsidiary, has been deleted because
the definition of European Market
Subsidiary and all other references to
the term have been deleted.
• Section 10.9 is deleted in its
entirety for the reasons set forth above
relating to Article XIII of the Certificate
of Incorporation of ICE, and also
because Section 10.9 refers to Stichting
NYSE Euronext and its Articles of
Formation, which no longer asserts any
authority over ICE.9
Independence Policy. The
Independence Policy would be revised
to eliminate from paragraph 3 the
references to European securities
exchanges and European regulatory
authorities that are no longer controlled
by, or regulators of entities controlled
by, ICE. See Exhibit 5C.
Certificate of Incorporation of ICE
Holdings. The Sixth Amended and
Restated Certificate of Incorporation of
ICE Holdings would be further amended
and restated as set forth in Exhibit 5D
to update the recitals in the initial
certification and to eliminate the
following provisions, which have
become void and without further effect
by operation of the indicated section
because ICE Holdings no longer controls
Euronext:
• Pursuant to Art. XIII, Section A.2.,
the following provisions are void and
would be deleted: Art. V, Section
A.2.(d); Art. V, Section A.3.(a)(ii),
(a)(iii)(z), (b)(ii), (c)(i)(y) and (d)(i)(y);
Art. V, Section A.4.(b), A.8, A.9, A.10
and A.11; Art. V, Section B.2.(d); Art. V,
Section B.3.(a)(ii), (a)(iii)(z), (b)(ii), (b)(y)
and (c)(ii); Art. VII, clause (B); and Art.
X, clause (B).
• In addition, the phrases ‘‘or any
European Market Subsidiary (as defined
below)’’ has been deleted from Art. V,
Section A.1., and the phrase ‘‘or any
European Market Subsidiary’’ has been
9 See Release No. 73740, 79 FR at 73362 and note
9, supra.
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28317
deleted from Art. V, Section B.1., in
each case because the phrase refers to a
term that is no longer used in the
document.
• Art. XIII itself is deleted for the
same reasons as discussed above for
ICE.
Bylaws of ICE Holdings. The Third
Amended and Restated Bylaws of ICE
Holdings would be further amended and
restated as set forth in Exhibit 5E to
eliminate the following provisions,
which have become void and without
further force and effect by operation of
the indicated section because ICE
Holdings no longer controls Euronext:
• Pursuant to Section 10.9(b)(3), the
following provisions are void and
would be deleted: Sections 3.14(a)(1),
3.14(b)(2), 3.14(b)(4), 3.14(b)(6), 7.2,
8.1(b), 8.2(b), 8.2(c)(2), 8.3(b), 8.3(d),
8.5, 9.2, 9.5, and 10.8; each occurrence
of the words ‘‘pursuant to a resolution
adopted by at a majority of the directors
then in office’’ in Section 3.1; and
additionally Sections 3.15(a), 3.15(b),
3.15(c), 3.15(d), 3.15(e), 3.15(f), 11.1(b),
11.2(b) and 11.3(A).
• In Section 3.5, a provision calling
for one board meeting to be held in
Europe in each year is deleted, for the
reasons discussed above under ‘‘Bylaws
of ICE.’’
• Section 8.6 is deleted for the
reasons discussed above under ‘‘Bylaws
of ICE’’.
• Section 10.9 is deleted in its
entirety for the reasons set forth above
under ‘‘Bylaws of ICE’’.
Limited Liability Company Agreement
of NYSE Holdings. The Sixth Amended
and Restated Limited Liability Company
Agreement of NYSE Holdings would be
further amended and restated as set
forth in Exhibit 5F to update the recitals
and to eliminate the following
provisions, which have become void
and without further force and effect by
operation of the indicated section
because NYSE Holdings no longer
controls Euronext:
• Pursuant to Section 16.3(b)(3), the
following provisions are void and
would be deleted: Sections 3.12(b)(1),
3.12(c)(2), 3.12(c)(4), 3.12(c)(6),10
12.1(b), 12.2(b), 12.2(c)(ii), 12.3(b),
12.3(d), 12.4(b), 13.2, 14.2, 14.5, and
16.2; and, additionally, Sections 4.1(b),
9.1(a)(2)(d), 9.1(a)(3)(A)(ii),
9.1(a)(3)(A)(iii)(z), 9.1(a)(3)(B)(ii),
9.1(a)(3)(C)(i)(y), 9.1(a)(3)(D)(i)(y),11
10 The four subsections of Section 3.12 are
mistakenly identified in Section 16.3(a) as
subsections of Section 3.11.
11 Sections 9.1(a)(3)(B)(ii), 9.1(a)(3)(C)(i)(y) and
9.1(a)(3)(D)(i)(y) are mistakenly identified in
Section 16.3 as subsections of Section 9.1(c)(3)
rather than Section 9.1(a)(3).
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9.1(a)(4)(b),12 9.1(b)(2)(d),
9.1(b)(3)(A)(ii), 9.1(b)(3)(A)(iii)(z),
9.1(b)(3)(B)(ii), 9.1(b)(3)(B)(y),
9.1(b)(3)(C)(ii), 16.1(a)(A) and 16.1(b),
and the definitions of ‘‘Euronext College
of Regulators’’, ‘‘European Exchange
Regulations’’, ‘‘European Regulated
Market’’, ‘‘European Regulator’’,
‘‘European Market Subsidiary’’ and
‘‘Europe’’ set forth in Section 1.1.
• Additional definitions that define
terms no longer used in the document
also are deleted from Section 1.1:
‘‘Euronext’’, ‘‘Euronext Call Option’’,
‘‘Euronext Transaction Time’’,
‘‘European Disqualified Person’’,
‘‘European Subsidiaries’ Confidential
Information’’, ‘‘Execution Date’’,
‘‘Extraordinary Transaction’’,
‘‘Foundation’’, ‘‘Governmental Entity’’
(and the reference to such term in the
definition of ‘‘Law’’), ‘‘Merger’’ and
‘‘Priority Shares’’.
• Certain cross-references have been
corrected in the definitions of ‘‘ETP
Holder’’, ‘‘MKT Member’’, ‘‘NYSE
Arca’’, ‘‘NYSE Arca Equities’’, ‘‘NYSE
Market’’, ‘‘NYSE Member’’, ‘‘NYSE
MKT’’, ‘‘OTP Firm’’, ‘‘OTP Holder’’ and
‘‘U.S. Disqualified Person’’.
• In Section 3.7, a provision calling
for one board meeting to be held in
Europe in each year is deleted for the
reasons discussed above under ‘‘Bylaws
of ICE’’.
• References to European filing
requirements have been eliminated from
Section 7.2.
• Section 12.4(c), applicable to
records that relate to both a European
Market Subsidiary and a U.S. Regulated
Subsidiary, has been deleted for the
reasons discussed above under ‘‘Bylaws
of ICE,’’ Section 8.6.
• Section 16.3 itself is deleted for the
reasons discussed under ‘‘Certificate of
Incorporation of ICE’’ with reference to
Art. XIII.
• The phrase ‘‘or any European
Market Subsidiary’’ has been eliminated
from Sections 9.1(a)(1) and 9.1(b)(1), in
each case because the phrase refers to a
term that is no longer used in the
document.
In each case, where a provision being
eliminated falls within a numbered or
lettered list, the subsequent numbers or
letters, as the case may be, and related
cross-references have been adjusted for
continuity. In some cases where a list
contains only a small number of items
after eliminations, the number or
lettering has been removed entirely.
Other non-substantive conforming
changes have been made as appropriate
for clarity and consistency.
12 Section 9.1(a)(4)(b) is mistakenly identified in
Section 16.3 as a subsection of Section 9.1(c)(4)
rather than Section 9.1(a)(4).
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2. Statutory Basis
NYSE MKT believes that the proposed
rule change is consistent with Section
6(b) of the Exchange Act 13 in general,
and with Section 6(b)(1) 14 in particular,
in that it enables NYSE MKT to be so
organized as to have the capacity to be
able to carry out the purposes of the
Exchange Act and to comply, and to
enforce compliance by its exchange
members and persons associated with
its exchange members, with the
provisions of the Exchange Act, the
rules and regulations thereunder, and
the rules of NYSE MKT. The European
Provisions were implemented at a time
when NYSE MKT was owned by a
company with substantial holdings of
non-U.S. securities exchanges,
substantial non-U.S. board
representation, and explicit obligations
on the part of its board to give due
consideration to matters of non-U.S. law
and the interests of non-U.S.
stakeholders. In light of the elimination
of these concerns and the concomitant
voiding of the European Provisions,
NYSE MKT believes that the proposed
rule change is consistent with Section
6(b)(1).
NYSE MKT also believes that this
filing furthers the objectives of Section
6(b)(5) of the Exchange Act 15 because
the proposed rule change would be
consistent with and facilitate a
governance and regulatory structure that
is designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities, to
remove impediments to, and perfect the
mechanism of a free and open market
and a national market system and, in
general, to protect investors and the
public interest. NYSE MKT believes that
elimination of the European Provisions
(which by their terms are now void and
of no further force and effect) will
remove impediments to the operation of
NYSE MKT by eliminating the potential
for uncertainty among analysts and
investors as to the practical implications
of the European Provisions on NYSE
MKT as a marketplace and as a
significant asset of ICE if they remain in
the Constituent Documents
notwithstanding their vitiation by the
Voiding Provisions. For the same
reasons, the proposed rule change is
13 15
U.S.C. 78f(b).
U.S.C. 78f(b)(1).
15 15 U.S.C. 78f(b)(5).
14 15
PO 00000
Frm 00100
Fmt 4703
Sfmt 4703
also designed to protect investors as
well as the public interest.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
NYSE MKT does not believe that the
proposed rule change will impose any
burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Exchange Act.
The proposed rule change would
shorten and simplify the Constituent
Documents and the ICE Directors
Independence Policy without making
any substantive changes, thereby
enhancing their transparency. The
proposed rule change would result in no
concentration or other changes of
ownership of exchanges.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
No written comments were solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed
rule change pursuant to Section
19(b)(3)(A) of the Act 16 and Rule 19b–
4(f)(6) thereunder.17 Because the
foregoing proposed rule change does
not: (i) Significantly affect the
protection of investors or the public
interest; (ii) impose any significant
burden on competition; and (iii) become
operative for 30 days from the date on
which it was filed, or such shorter time
as the Commission may designate, it has
become effective pursuant to Section
19(b)(3)(A) of the Act and Rule
19b&4(f)(6) thereunder.18
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 19 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 20
permits the Commission to designate a
shorter time if such action is consistent
with the protection of investors and the
public interest. The Exchange has asked
the Commission to waive the 30-day
operative delay so that the proposal may
16 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6).
18 17 CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires a self-regulatory organization to
give the Commission written notice of its intent to
file the proposed rule change, along with a brief
description and the text of the proposed rule
change, at least five business days prior to the date
of filing of the proposed rule change, or such
shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
19 17 CFR 240.19b–4(f)(6).
20 17 CFR 240.19b–4(f)(6)(iii).
17 17
E:\FR\FM\18MYN1.SGM
18MYN1
Federal Register / Vol. 80, No. 95 / Monday, May 18, 2015 / Notices
become operative immediately upon
filing. The Exchange notes that such
waiver would accommodate the timing
of the effectiveness under the Delaware
General Corporation Law of the Second
Amended and Restated Certificate of
Incorporation of ICE, which the
Exchange represents will be filed in
Delaware upon approval by the
stockholders of ICE at the annual
meeting of stockholders scheduled for
May 2015. The Exchange believes that
waiving the 30-day operative delay
would permit the modifications to occur
at an earlier time and thereby reduce the
potential for confusion among persons
reading the Constituent Documents. The
Commission believes that waiving the
30-day operative delay is consistent
with the protection of investors and the
public interest. Therefore, the
Commission hereby waives the
operative delay and designates the
proposed rule change operative upon
filing.21
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEMKT–2015–32 on the subject line.
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Paper Comments
• Send paper comments in triplicate
to Brent J. Fields, Secretary, Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSEMKT–2015–32. This
file number should be included on the
21 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
VerDate Sep<11>2014
18:52 May 15, 2015
Jkt 235001
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (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 Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the
filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEMKT–2015–32, and should be
submitted on or before June 8, 2015.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015–11872 Filed 5–15–15; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–74937; File No. SR–CBOE–
2015–046]
Self-Regulatory Organizations;
Chicago Board Options Exchange,
Incorporated; Notice of Filing and
Immediate Effectiveness of a Proposed
Rule Change Relating to The
Customized Option Pricing Service
May 12, 2015.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on May 1,
2015, Chicago Board Options Exchange,
Incorporated (the ‘‘Exchange’’ or
‘‘CBOE’’) filed with the Securities and
22 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
PO 00000
Frm 00101
Fmt 4703
Sfmt 4703
28319
Exchange Commission (the
‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by the Exchange. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
Chicago Board Options Exchange,
Incorporated (the ‘‘Exchange’’ or
‘‘CBOE’’) proposes to amend the terms
of the Customized Option Pricing
Service (‘‘COPS’’). The text of the
proposed rule change is available on the
Exchange’s Web site (https://
www.cboe.com/AboutCBOE/
CBOELegalRegulatoryHome.aspx), at
the Exchange’s Office of the Secretary,
and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections A, B, and C below, of
the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The purpose of the proposed rule
change is to amend the terms of the
Exhange’s COPS,3 specifically, the
COPS data revenue-sharing plan. The
Exchange is not proposing to change the
fees for COPS data.
3 See Securities Exchange Act Release No. 67813
(September 10, 2012), 77 FR 56903 (September 14,
2012) (SR–CBOE–2012–083), Securities Exchange
Act Release No. 67928 (September 26, 2012), 77 FR
60161 (October 2, 2012) (SR–CBOE–2012–090),
Securities Exchange Act Release No. 70705 (October
17, 2013), 78 FR 63265 (October 23, 2013) (SR–
CBOE–2013–097), Securities Exchange Act Release
No. 70845 (November 12, 2013), 78 FR 69168
(November 18, 2013) (SR–CBOE–2013–104),
Securities Exchange Act Release No. 72621 (July 16,
2014), 79 FR 42616 (July 22, 2014) (SR–CBOE–
2014–057) and Securities Exchange Act Release No.
74159 (January 28, 2015), 80 FR 5863 (February 23,
2015) (SR–CBOE–2015–007).
E:\FR\FM\18MYN1.SGM
18MYN1
]]>Agencies
[Federal Register Volume 80, Number 95 (Monday, May 18, 2015)]
[Notices]
[Pages 28315-28319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11872]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-74930; File No. SR-NYSEMKT-2015-32]
Self-Regulatory Organizations; NYSE MKT, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Amending the
Constituent Documents of Its Intermediate Parent Companies NYSE
Holdings, LLC., Intercontinental Exchange, Inc., To Eliminate Certain
Provisions That by Their Terms Have Become Void and Are of No Further
Force and Effect as a Result of the Sale by ICE of Euronext N.V. in
June 2014 and Make Conforming Changes to the Independence Policy of the
Board of Directors of ICE
May 12, 2015.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that, on May 1, 2015, NYSE MKT LLC (the ``Exchange'' or ``NYSE MKT'')
filed with the Securities and Exchange Commission (the ``Commission'')
the proposed rule change as described in Items I and II below, which
Items have been prepared by the self-regulatory organization. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The Exchange proposes to amend the constituent documents of its
intermediate parent companies NYSE Holdings LLC, a Delaware limited
liability company (``NYSE Holdings''), and Intercontinental Exchange
Holdings, Inc., a Delaware corporation (``ICE Holdings''), and its
ultimate parent company, Intercontinental Exchange, Inc., a Delaware
corporation (``ICE''), to eliminate certain provisions that by their
terms have become void and are of no further force and effect as a
result of the sale by ICE of Euronext N.V. (``Euronext'') in June 2014.
NYSE MKT also seeks approval of conforming
[[Page 28316]]
changes to the Independence Policy of the Board of Directors of ICE
(the ``Independence Policy''). The text of the proposed rule change is
available on the Exchange's Web site at www.nyse.com, at the principal
office of the Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
NYSE MKT requests approval to amend the constituent documents of
its intermediate parent companies NYSE Holdings and ICE Holdings, and
of its ultimate parent company, ICE, to eliminate certain provisions
that by their terms have become void and are of no further force and
effect as a result of the sale by ICE of Euronext in June 2014, upon
consummation of which ICE, ICE Holdings and NYSE Holdings ceased to
control Euronext.\3\ NYSE MKT also requests approval of conforming
changes to the Independence Policy.\4\
---------------------------------------------------------------------------
\3\ ICE, a public company listed on the New York Stock Exchange
(``NYSE''), owns 100% of ICE Holdings, which in turn owns 100% of
NYSE Holdings. Through ICE Holdings, NYSE Holdings and NYSE Group,
Inc., ICE indirectly owns (1) 100% of the equity interest of three
registered national securities exchanges and self-regulatory
organizations (together, the ``NYSE Exchanges'')--NYSE, NYSE Arca,
Inc. (``NYSE Arca'') and NYSE MKT--and (2) 100% of the equity
interest of NYSE Market (DE), Inc., NYSE Regulation, Inc., NYSE Arca
L.L.C. and NYSE Arca Equities, Inc. ICE also indirectly owns a
majority interest in NYSE Amex Options LLC. See Exchange Act Release
No. 70210 (August 15, 2013), 78 FR 51758 (August 21, 2013) (SR-NYSE-
2013-42; SR-NYSEMKT-2013-50; SR-NYSEArca-2013-62) (``Release No.
70210'') (approving proposed rule change relating to a corporate
transaction in which NYSE Euronext will become a wholly owned
subsidiary of Intercontinental Exchange Group, Inc.).
\4\ NYSE MKT's affiliates NYSE and NYSE Arca have also submitted
the same proposed rule change. See SR-NYSE-2015-18 and SR-NYSEArca-
2015-33.
---------------------------------------------------------------------------
NYSE MKT believes the proposed changes are desirable to avoid the
potential for confusion that could arise if ICE, ICE Holdings and NYSE
Holdings were to retain in their constituent documents or in the
Independence Policy provisions that are no longer operative.
Background
In 2007, NYSE MKT's direct parent, NYSE Group Inc. (``NYSE
Group''), entered into a business combination transaction with Euronext
N.V. (``Euronext'') in which NYSE Group and Euronext became wholly
owned subsidiaries of a newly formed company, NYSE Euronext, a Delaware
corporation. The Certificate of Incorporation and Bylaws of NYSE
Euronext included provisions (a) requiring NYSE Euronext and its board
of directors to give due consideration to requirements of European law
and regulation applicable to the operation of Euronext's European
business; (b) requiring NYSE Euronext and its board of directors to
cause Euronext's subsidiaries to operate in compliance with applicable
law and regulation and to cooperate with European regulators; (c)
relating to board compositions and similar matters; and (d) prohibiting
the amendment of such provisions without a supermajority vote of the
directors in light of Euronext's minority representation on the board
(collectively, the ``European Provisions''). NYSE Euronext's
Certificate of Incorporation and Bylaws also included provisions for
the automatic suspension or voiding of the European Provisions under
specified circumstances, including circumstances under which NYSE
Euronext no longer exercised a controlling interest (as therein
defined) over Euronext (the ``Voiding Provisions'').\5\
---------------------------------------------------------------------------
\5\ See Exchange Act Release No. 55293026 [sic] (February 14,
2007), 72 FR 8033 (Feb. 22, 2007) (SR-NYSE-2006-120).
---------------------------------------------------------------------------
In 2013, ICE Holdings (then known as IntercontinentalExchange,
Inc.) entered into a business combination transaction with NYSE
Euronext in which ICE Holdings and NYSE Holdings (then known as NYSE
Euronext Holdings LLC), as successor to NYSE Euronext, became wholly
owned subsidiaries of a newly formed company, ICE (then known as
IntercontinentalExchange Group, Inc.). In connection with this
transaction, the European Provisions and the Voiding Provisions were
modified as they applied to NYSE Holdings and were incorporated, in
substantially the same modified form, into the Certificate of
Incorporation and Bylaws of ICE, along with the Voiding Provisions. In
relevant part, the Voiding Provisions applicable to ICE and NYSE
Holdings were modified to specify that the European Provisions would
automatically become void and be of no further force and effect if at
any time ICE or NYSE Holdings, as the case may be, ceased to
``control'' Euronext, with ``control'' defined under International
Financial Reporting Standard 10 (as in force at its date of first
effectiveness on January 1, 2014), and with cessation of control
subject to confirmation from the entity's registered public accountants
and to a public disclosure requirement.\6\
---------------------------------------------------------------------------
\6\ See Exchange Act Release No. 70210, 78 FR at 51758.
---------------------------------------------------------------------------
In March 2014, in preparation for its announced plan to sell
Euronext, ICE contributed its ownership of NYSE Holdings to ICE
Holdings, and in connection therewith the Certificate and Bylaws of ICE
Holdings were amended to incorporate the modified European Provisions
and the modified Voiding Provisions.\7\ The Certificate of
Incorporation and Bylaws of ICE and of ICE Holdings, and the Limited
Liability Company Agreement of NYSE Holdings are referred to
collectively as the ``Constituent Documents''.
---------------------------------------------------------------------------
\7\ See Exchange Act Release No. 71721 (Mar. 13, 2014), 79 FR
15367 (Mar. 19, 2014) (SR-NYSE-2014-04; SR-NYSEMKT-2014-10; SR-
NYSEArca-2014-08).
---------------------------------------------------------------------------
In June 2014, ICE consummated the sale of substantially all of its
interest in Euronext and, accordingly, ceased to control Euronext
within the meaning of the Voiding Provisions. As a result, the Voiding
Provisions in each of the Constituent Documents were triggered, and the
European Provisions in the Constituent Documents automatically became
void and are of no further force and effect.\8\
---------------------------------------------------------------------------
\8\ See Exchange Act Release No. 73740 (Dec. 4, 2014), 79 FR
73362 (Dec. 10, 2014) (``Release No. 73740'') (SR-NYSE-2014-53; SR-
NYSEMKT-2014-83; SR-NYSEArca-2014-112), for additional information
about the events that resulted in the triggering of the Voiding
Provisions.
---------------------------------------------------------------------------
NYSE MKT accordingly proposes to make the following changes to the
constituent documents of ICE, ICE Holdings and NYSE Holdings:
Certificate of Incorporation of ICE. The Amended and Restated
Certificate of Incorporation of ICE would be further amended and
restated as set forth in Exhibit 5A to update the recitals in the
initial certification and to eliminate the following provisions, which
have become void and without further force and effect by operation of
the indicated section because ICE no longer controls Euronext:
Pursuant to Art. XIII, Section A.2., the following
provisions are void and would be deleted: Art. V, Section A.2.(d); Art.
V, Section A.3.(a)(ii),
[[Page 28317]]
(a)(iii)(z), (b)(ii), (c)(i)(y) and (d)(i)(y); Art. V, Section A.4.(b),
A.8, A.9, A.10 and A.11; Art. V, Section B.2.(d); Art. V, Section
B.3.(a)(ii), (a)(iii)(z), (b)(ii), (b)(y) and (c)(ii); Art. VII, clause
(B); and Art. X, clause (B).
In addition, the phrases ``or any European Market
Subsidiary (as defined below)'' has been deleted from Art. V, Section
A.1., and the phrase ``or any European Market Subsidiary'' has been
deleted from Art. V, Section B.1., in each case because the phrase
refers to a term that is no longer used in the document.
In Art. V, Section A.3.(a)(i), a reference has been added
to ICE Holdings and the erroneous name NYSE Euronext LLC has been
corrected to refer to NYSE Holdings LLC. Additionally, references to
ICE Holdings and NYSE Holdings have been added to Art. V, Section
B.3.(a)(i). These matters were previously addressed in the last
sentence of Section 3.15(g) of the Bylaws of ICE.
Art. XIII itself is deleted because its sole purpose was
to define the circumstances under which ICE would no longer control
Euronext and to specify the provisions that became void upon such
event. NYSE MKT believes it would be confusing to retain Art. XIII
because it refers to events that have occurred and to provisions that
will have been deleted.
Art. XIV, establishing an effective time for the document,
has been deleted because the effective time is addressed in the initial
certification.
Bylaws of ICE. The Fourth Amended and Restated Bylaws of ICE would
be further amended and restated as set forth in Exhibit 5B to eliminate
the following provisions, which have become void and without further
force and effect by operation of the indicated section because ICE no
longer controls Euronext:
Pursuant to Section 10.9(b)(3), the following provisions
are void and would be deleted: Sections 3.14(a)(1), 3.14(b)(2),
3.14(b)(4), 3.14(b)(6), 7.2, 8.1(b), 8.2(b), 8.2(c)(2), 8.3(b), 8.3(d),
8.5, 9.2, 9.5, and 10.8; each occurrence of the words ``pursuant to a
resolution adopted by at least 75% of the directors then in office'' in
Section 3.1; and additionally Sections 3.15(a), 3.15(b), 3.15(c),
3.15(d), 3.15(e), 3.15(f), 11.1(b), 11.2(b) and 11.3(A).
In Section 3.1, where the reference to 75% of the
directors then in office is eliminated, the standard for setting the
number of directors is set to a majority of the directors then in
office, which was the standard in effect at NYSE Group prior to the
Euronext transaction in 2007.
In Section 3.5, a provision calling for one board meeting
to be held in Europe in each year is deleted. This provision was
included to accommodate the interests of the Euronext-affiliated
directors and, while it was not identified for automatic deletion, ICE
views the requirement as imposing an unnecessary expense on ICE and
believes the venue of meetings should be in the discretion of
management.
The last sentence of Section 3.15(g) (which will be
redesignated Section 3.15) is deleted for the reasons discussed above
under ``Certificate of Incorporation of ICE''.
Section 8.6, applicable to records that relate to both a
European Market Subsidiary and a U.S. Regulated Subsidiary, has been
deleted because the definition of European Market Subsidiary and all
other references to the term have been deleted.
Section 10.9 is deleted in its entirety for the reasons
set forth above relating to Article XIII of the Certificate of
Incorporation of ICE, and also because Section 10.9 refers to Stichting
NYSE Euronext and its Articles of Formation, which no longer asserts
any authority over ICE.\9\
---------------------------------------------------------------------------
\9\ See Release No. 73740, 79 FR at 73362 and note 9, supra.
---------------------------------------------------------------------------
Independence Policy. The Independence Policy would be revised to
eliminate from paragraph 3 the references to European securities
exchanges and European regulatory authorities that are no longer
controlled by, or regulators of entities controlled by, ICE. See
Exhibit 5C.
Certificate of Incorporation of ICE Holdings. The Sixth Amended and
Restated Certificate of Incorporation of ICE Holdings would be further
amended and restated as set forth in Exhibit 5D to update the recitals
in the initial certification and to eliminate the following provisions,
which have become void and without further effect by operation of the
indicated section because ICE Holdings no longer controls Euronext:
Pursuant to Art. XIII, Section A.2., the following
provisions are void and would be deleted: Art. V, Section A.2.(d); Art.
V, Section A.3.(a)(ii), (a)(iii)(z), (b)(ii), (c)(i)(y) and (d)(i)(y);
Art. V, Section A.4.(b), A.8, A.9, A.10 and A.11; Art. V, Section
B.2.(d); Art. V, Section B.3.(a)(ii), (a)(iii)(z), (b)(ii), (b)(y) and
(c)(ii); Art. VII, clause (B); and Art. X, clause (B).
In addition, the phrases ``or any European Market
Subsidiary (as defined below)'' has been deleted from Art. V, Section
A.1., and the phrase ``or any European Market Subsidiary'' has been
deleted from Art. V, Section B.1., in each case because the phrase
refers to a term that is no longer used in the document.
Art. XIII itself is deleted for the same reasons as
discussed above for ICE.
Bylaws of ICE Holdings. The Third Amended and Restated Bylaws of
ICE Holdings would be further amended and restated as set forth in
Exhibit 5E to eliminate the following provisions, which have become
void and without further force and effect by operation of the indicated
section because ICE Holdings no longer controls Euronext:
Pursuant to Section 10.9(b)(3), the following provisions
are void and would be deleted: Sections 3.14(a)(1), 3.14(b)(2),
3.14(b)(4), 3.14(b)(6), 7.2, 8.1(b), 8.2(b), 8.2(c)(2), 8.3(b), 8.3(d),
8.5, 9.2, 9.5, and 10.8; each occurrence of the words ``pursuant to a
resolution adopted by at a majority of the directors then in office''
in Section 3.1; and additionally Sections 3.15(a), 3.15(b), 3.15(c),
3.15(d), 3.15(e), 3.15(f), 11.1(b), 11.2(b) and 11.3(A).
In Section 3.5, a provision calling for one board meeting
to be held in Europe in each year is deleted, for the reasons discussed
above under ``Bylaws of ICE.''
Section 8.6 is deleted for the reasons discussed above
under ``Bylaws of ICE''.
Section 10.9 is deleted in its entirety for the reasons
set forth above under ``Bylaws of ICE''.
Limited Liability Company Agreement of NYSE Holdings. The Sixth
Amended and Restated Limited Liability Company Agreement of NYSE
Holdings would be further amended and restated as set forth in Exhibit
5F to update the recitals and to eliminate the following provisions,
which have become void and without further force and effect by
operation of the indicated section because NYSE Holdings no longer
controls Euronext:
Pursuant to Section 16.3(b)(3), the following provisions
are void and would be deleted: Sections 3.12(b)(1), 3.12(c)(2),
3.12(c)(4), 3.12(c)(6),\10\ 12.1(b), 12.2(b), 12.2(c)(ii), 12.3(b),
12.3(d), 12.4(b), 13.2, 14.2, 14.5, and 16.2; and, additionally,
Sections 4.1(b), 9.1(a)(2)(d), 9.1(a)(3)(A)(ii), 9.1(a)(3)(A)(iii)(z),
9.1(a)(3)(B)(ii), 9.1(a)(3)(C)(i)(y), 9.1(a)(3)(D)(i)(y),\11\
[[Page 28318]]
9.1(a)(4)(b),\12\ 9.1(b)(2)(d), 9.1(b)(3)(A)(ii), 9.1(b)(3)(A)(iii)(z),
9.1(b)(3)(B)(ii), 9.1(b)(3)(B)(y), 9.1(b)(3)(C)(ii), 16.1(a)(A) and
16.1(b), and the definitions of ``Euronext College of Regulators'',
``European Exchange Regulations'', ``European Regulated Market'',
``European Regulator'', ``European Market Subsidiary'' and ``Europe''
set forth in Section 1.1.
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\10\ The four subsections of Section 3.12 are mistakenly
identified in Section 16.3(a) as subsections of Section 3.11.
\11\ Sections 9.1(a)(3)(B)(ii), 9.1(a)(3)(C)(i)(y) and
9.1(a)(3)(D)(i)(y) are mistakenly identified in Section 16.3 as
subsections of Section 9.1(c)(3) rather than Section 9.1(a)(3).
\12\ Section 9.1(a)(4)(b) is mistakenly identified in Section
16.3 as a subsection of Section 9.1(c)(4) rather than Section
9.1(a)(4).
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Additional definitions that define terms no longer used in
the document also are deleted from Section 1.1: ``Euronext'',
``Euronext Call Option'', ``Euronext Transaction Time'', ``European
Disqualified Person'', ``European Subsidiaries' Confidential
Information'', ``Execution Date'', ``Extraordinary Transaction'',
``Foundation'', ``Governmental Entity'' (and the reference to such term
in the definition of ``Law''), ``Merger'' and ``Priority Shares''.
Certain cross-references have been corrected in the
definitions of ``ETP Holder'', ``MKT Member'', ``NYSE Arca'', ``NYSE
Arca Equities'', ``NYSE Market'', ``NYSE Member'', ``NYSE MKT'', ``OTP
Firm'', ``OTP Holder'' and ``U.S. Disqualified Person''.
In Section 3.7, a provision calling for one board meeting
to be held in Europe in each year is deleted for the reasons discussed
above under ``Bylaws of ICE''.
References to European filing requirements have been
eliminated from Section 7.2.
Section 12.4(c), applicable to records that relate to both
a European Market Subsidiary and a U.S. Regulated Subsidiary, has been
deleted for the reasons discussed above under ``Bylaws of ICE,''
Section 8.6.
Section 16.3 itself is deleted for the reasons discussed
under ``Certificate of Incorporation of ICE'' with reference to Art.
XIII.
The phrase ``or any European Market Subsidiary'' has been
eliminated from Sections 9.1(a)(1) and 9.1(b)(1), in each case because
the phrase refers to a term that is no longer used in the document.
In each case, where a provision being eliminated falls within a
numbered or lettered list, the subsequent numbers or letters, as the
case may be, and related cross-references have been adjusted for
continuity. In some cases where a list contains only a small number of
items after eliminations, the number or lettering has been removed
entirely.
Other non-substantive conforming changes have been made as
appropriate for clarity and consistency.
2. Statutory Basis
NYSE MKT believes that the proposed rule change is consistent with
Section 6(b) of the Exchange Act \13\ in general, and with Section
6(b)(1) \14\ in particular, in that it enables NYSE MKT to be so
organized as to have the capacity to be able to carry out the purposes
of the Exchange Act and to comply, and to enforce compliance by its
exchange members and persons associated with its exchange members, with
the provisions of the Exchange Act, the rules and regulations
thereunder, and the rules of NYSE MKT. The European Provisions were
implemented at a time when NYSE MKT was owned by a company with
substantial holdings of non-U.S. securities exchanges, substantial non-
U.S. board representation, and explicit obligations on the part of its
board to give due consideration to matters of non-U.S. law and the
interests of non-U.S. stakeholders. In light of the elimination of
these concerns and the concomitant voiding of the European Provisions,
NYSE MKT believes that the proposed rule change is consistent with
Section 6(b)(1).
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\13\ 15 U.S.C. 78f(b).
\14\ 15 U.S.C. 78f(b)(1).
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NYSE MKT also believes that this filing furthers the objectives of
Section 6(b)(5) of the Exchange Act \15\ because the proposed rule
change would be consistent with and facilitate a governance and
regulatory structure that is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to, and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest. NYSE MKT believes that
elimination of the European Provisions (which by their terms are now
void and of no further force and effect) will remove impediments to the
operation of NYSE MKT by eliminating the potential for uncertainty
among analysts and investors as to the practical implications of the
European Provisions on NYSE MKT as a marketplace and as a significant
asset of ICE if they remain in the Constituent Documents
notwithstanding their vitiation by the Voiding Provisions. For the same
reasons, the proposed rule change is also designed to protect investors
as well as the public interest.
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\15\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
NYSE MKT does not believe that the proposed rule change will impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Exchange Act. The proposed rule
change would shorten and simplify the Constituent Documents and the ICE
Directors Independence Policy without making any substantive changes,
thereby enhancing their transparency. The proposed rule change would
result in no concentration or other changes of ownership of exchanges.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A) of the Act \16\ and Rule 19b-4(f)(6) thereunder.\17\
Because the foregoing proposed rule change does not: (i) Significantly
affect the protection of investors or the public interest; (ii) impose
any significant burden on competition; and (iii) become operative for
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, it has become effective pursuant to
Section 19(b)(3)(A) of the Act and Rule 19b&4(f)(6) thereunder.\18\
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\16\ 15 U.S.C. 78s(b)(3)(A).
\17\ 17 CFR 240.19b-4(f)(6).
\18\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and the text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has satisfied this requirement.
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A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \19\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \20\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has asked the Commission to waive the 30-day operative delay so that
the proposal may
[[Page 28319]]
become operative immediately upon filing. The Exchange notes that such
waiver would accommodate the timing of the effectiveness under the
Delaware General Corporation Law of the Second Amended and Restated
Certificate of Incorporation of ICE, which the Exchange represents will
be filed in Delaware upon approval by the stockholders of ICE at the
annual meeting of stockholders scheduled for May 2015. The Exchange
believes that waiving the 30-day operative delay would permit the
modifications to occur at an earlier time and thereby reduce the
potential for confusion among persons reading the Constituent
Documents. The Commission believes that waiving the 30-day operative
delay is consistent with the protection of investors and the public
interest. Therefore, the Commission hereby waives the operative delay
and designates the proposed rule change operative upon filing.\21\
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\19\ 17 CFR 240.19b-4(f)(6).
\20\ 17 CFR 240.19b-4(f)(6)(iii).
\21\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NYSEMKT-2015-32 on the subject line.
Paper Comments
Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEMKT-2015-32. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (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 Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEMKT-2015-32, and should
be submitted on or before June 8, 2015.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
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\22\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-11872 Filed 5-15-15; 8:45 am]
BILLING CODE 8011-01-P
