Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Exchange's Certificate of Formation, Amended and Restated Limited Liability Company Agreement, and the By-Laws, 73315-73317 [2020-25266]
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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–90393; File No. SR–
EMERALD–2020–14]
1. Purpose
Self-Regulatory Organizations; MIAX
Emerald, LLC; Notice of Filing and
Immediate Effectiveness of a Proposed
Rule Change To Amend the
Exchange’s Certificate of Formation,
Amended and Restated Limited
Liability Company Agreement, and the
By-Laws
November 10, 2020.
Pursuant to the provisions of Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’) 1 and Rule 19b–4
thereunder,2 notice is hereby given that
on October 28, 2020, MIAX Emerald,
LLC (‘‘MIAX Emerald’’ or ‘‘Exchange’’)
filed with the Securities and Exchange
Commission (‘‘Commission’’) a
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
The Exchange proposes to amend the
Exchange’s Certificate of Formation (the
‘‘Certificate of Formation’’), Amended
and Restated Limited Liability Company
Agreement (the ‘‘LLC Agreement’’), and
the By-Laws (the ‘‘By-Laws’’).
The text of the proposed rule change
is available on the Exchange’s website at
https://www.miaxoptions.com/rulefilings/emerald at MIAX Emerald’s
principal office, 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.
1 15
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
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Changes to the Certificate of Formation
The Exchange proposes to amend the
Certificate of Formation to make several
non-substantive, administrative and
clarifying changes. The Exchange first
proposes to amend the title of the
document in order to accurately reflect
the amended document title as the
‘‘Amended and Restated Certificate of
Formation of MIAX Emerald, LLC,’’ in
accordance with the proposed
amendments described below.
On January 30, 2018, the Exchange
executed the original Certificate of
Formation. The Exchange proposes
delete the entire sentence in the first
paragraph and insert a sentence to
clarify that the Certificate of Formation
has been executed in accordance with
Section 18–208 of the Limited Liability
Company Act, and that this document is
being amended to restate the original
Certificate of Formation. With the
proposed changes, the first paragraph of
the Certificate of Formation will be as
follows:
This filing has been executed and filed in
accordance with Section 18–208 of the
Limited Liability Company Act. This
document is being executed for the purpose
of amending and restating the original
Certificate of Formation, filed on January 30,
2018, under file number: 6528291.
The Exchange also proposes to amend
the signature line for the Certificate of
Formation by deleting the current
signature line and inserting, as the
signatory, ‘‘Barbara J. Comly, EVP,
General Counsel & Corporate Secretary.’’
The purpose of the proposed changes
to the Certificate of Formation are to
ensure that the Exchange’s Certificate of
Formation accurately reflects correct,
current information, including the name
of the amended document, in order to
reduce potential investor or market
participant confusion.
Changes to the LLC Agreement
The Exchange proposes to amend the
LLC Agreement to make several nonsubstantive, administrative and
clarifying changes. On February 1, 2018,
the Exchange executed the original
Limited Liability Company Agreement
(the ‘‘original LLC Agreement’’). On
December 21, 2018, the Exchange
executed the Amended and Restated
Limited Liability Company Agreement
(the ‘‘Amended LLC Agreement’’),
which restated the original LLC
Agreement. The first paragraph of the
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73315
LLC Agreement also refers to the
document as the ‘‘Operating
Agreement.’’ 3 The Exchange now
proposes to amend the first paragraph of
the LLC Agreement to reflect the current
amended document, which will be the
‘‘Second Amended and Restated
Limited Liability Company Agreement’’
(the ‘‘Second LLC Agreement’’).
Accordingly, the Exchange proposes to
update the text in the first paragraph of
the LLC Agreement to reflect this
change, thereby deleting reference to the
name and date of the original LLC
Agreement, and inserting the name and
date of the Amended LLC Agreement as
being amended and restated by the
Second LLC Agreement. The Exchange
also proposes to delete the reference to
the ‘‘Operating Agreement,’’ for
purposes of clarity and uniformity.4
With the proposed changes, the first
paragraph of the LLC Agreement will be
as follows:
Miami International Holdings, Inc., a
Delaware corporation, the sole member (the
‘‘LLC Member’’) of MIAX Emerald, LLC, a
Delaware limited liability company (the
‘‘Company’’), pursuant to and in accordance
with the Delaware Limited Liability
Company Act, 6 Del.C. § 18–101, et seq. (the
‘‘LLC Act’’), hereby declares the following to
be the Second Amended and Restated
Limited Liability Company Agreement (the
‘‘LLC Agreement’’) of the Company which
amends and restates in its entirety the
Amended and Restated Limited Liability
Company Agreement dated December 21,
2018 of the Company. Capitalized terms not
otherwise defined herein shall have the
meanings set forth on Schedule A to this LLC
Agreement.
Next, the Exchange proposes to
amend Section 3 of the LLC Agreement
to amend the address referenced therein
for the Exchange’s principal place of
business. The Exchange has increased
its office space at its current address of
7 Roszel Road, Princeton, New Jersey
08540.5 The new mailing and principal
address for the Princeton, New Jersey
office is now 7 Roszel Road, Suite 1A,
Princeton, New Jersey 08540.
Accordingly, the Exchange proposes to
amend Section 3 of the LLC Agreement
to reflect the change in mailing address
from ‘‘5th Floor’’ to ‘‘Suite 1A.’’
The Exchange proposes to amend
Section 4 of the LLC Agreement to
update the address of the Exchange’s
registered office in the State of
Delaware, as well as the Exchange’s
registered agent. In particular, the
Exchange proposes to delete the address
and company name of the registered
office and registered agent, respectively,
3 See
LLC Agreement.
id.
5 See id., Section 3.
4 See
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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices
as contained in the current LLC
Agreement. The Exchange proposes to
insert in Section 4 of the LLC
Agreement the updated address of its
registered office and the name of the
Exchange’s registered agent. With the
proposed changes, Section 4 of the LLC
Agreement will be as follows:
The registered office of the Company
required by the LLC Act to be maintained in
the State of Delaware shall be 1209 Orange
Street in the City of Wilmington, County of
New Castle, ZIP Code 19801 or such other
office as the Board of Directors may designate
from time to time. The registered agent for
the Company shall be The Corporation Trust
Company, or such other registered agent as
the Board of Directors may designate from
time to time.
Next, the Exchange proposes to
amend Section 6 of the LLC Agreement
to clarify that Miami International
Holdings, Inc. (‘‘MIH’’) is the sole LLC
Member 6 of the Exchange and to update
the address for MIH, as described above.
The Exchange also proposes to delete
the reference to ‘‘Schedule B’’ and the
following sentence: ‘‘The LLC Member
was admitted to the Company as an LLC
Member of the Company upon its
execution of a counterpart signature
page to the Operating Agreement at
which time it acquired 100% of the
limited liability company interests of
the Company.’’ The purpose of these
changes is for administrative ease and to
provide uniformity throughout the LLC
Agreement. The Exchange also proposes
to delete ‘‘Schedule B’’ from the LLC
Agreement, which simply states that the
LLC Member is MIH. This is duplicative
information as the term ‘‘LLC Member’’
is defined in Schedule A to the LLC
Agreement.7 Accordingly, the Exchange
proposes to delete Schedule B and move
the information regarding the LLC
Member into Section 6.
Next, the Exchange proposes to
amend Section 9 of the LLC Agreement
to delete the last sentence of Section
9(a), which states, ‘‘The Directors as of
the date of this LLC Agreement are set
forth on Schedule C attached hereto.’’
Schedule C of the LLC Agreement
provides the names and classifications
of the Board of Directors of the
Exchange as of December 21, 2018. The
Exchange proposes to delete Schedule
C, and all references to Schedule C, as
further described below, from the LLC
Agreement. The names and
classifications of the Board of Directors
of the Exchange are publicly available
information through the Commission’s
Electronic Data Gathering, Analysis, and
6 ‘‘LLC Member’’ means Miami International
Holdings, Inc., as the sole member of the Company.
See LLC Agreement, Schedule A, Definitions.
7 See id.
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19:46 Nov 16, 2020
Jkt 253001
Retrieval (‘‘EDGAR’’) website.8 The
purpose of these changes is for
administrative ease and to provide
uniformity throughout the LLC
Agreement.
The Exchange also proposes to amend
the first sentence of Section 9(c) to
clarify that the By-Laws 9 of the
Exchange have been adopted, thereby
deleting the phrase ‘‘hereby adopt the,’’
in order to clarify that this has already
occurred. Further, the Exchange
proposes to delete the reference to
‘‘Exhibit A’’ in Section 9(c). Exhibit A
currently provides that the By-Laws of
MIAX Emerald are a separate document
from the LLC Agreement. The Exchange
provides the By-Laws as publicly
available information on its website.
Accordingly, additional reference to the
By-Laws in Exhibit A is duplicative.
Next, the Exchange proposes to
amend Section 29 of the LLC Agreement
to delete the reference to ‘‘Schedule B’’
and provide a cross-reference to Section
6 for the address of the LLC Member, as
described above. These proposed
changes will provide clarity and
uniformity throughout the LLC
Agreement.
The Exchange next proposes to amend
‘‘Schedule A, Definitions’’ to the LLC
Agreement to delete the definition for
‘‘Operating Agreement.’’ As described
above, the Exchange is amending and
restating the LLC Agreement for the
second time and as such, is removing
the reference in the first paragraph of
the LLC Agreement to the ‘‘Operating
Agreement.’’
Changes to the By-Laws
The Exchange proposes to amend the
By-Laws to make several nonsubstantive, administrative and
clarifying changes. First, the Exchange
proposes to amend the title of the ByLaws to insert the phrase ‘‘Amended
and Restated.’’ The Exchange proposes
to amend the first paragraph of the ByLaws to insert the phrase ‘‘Amended
and Restated’’ in front of the first time
the word ‘‘By-Laws’’ appears and to
delete the phrases ‘‘Amended and
Restated’’ and ‘‘dated as of December
21, 2018,’’ both of which refer to the
LLC Agreement.10 The purpose of these
changes is for administrative ease and to
provide uniformity among the titles of
each of the Exchange’s corporate
documents. With the proposed changes,
8 See https://www.sec.gov/edgar/searchedgar/
companysearch.html and https://www.sec.gov/oiea/
Article/edgarguide.html for EDGAR filing
information.
9 ‘‘By-Laws’’ has the meaning set forth in Section
9(c). See LLC Agreement, Schedule A, Definitions.
10 See By-Laws.
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the first paragraph of the By-Laws will
be as follows:
These Amended and Restated By-Laws
have been established as the By-Laws of
MIAX Emerald, LLC, a Delaware limited
liability company (the ‘‘Company’’), pursuant
to the Limited Liability Company Agreement
of the Company (as amended from time to
time, the ‘‘LLC Agreement’’), and, together
with the LLC Agreement, constitute the
limited liability company agreement of the
Company within the meaning of the LLC Act
(as defined in the LLC Agreement). In the
event of any inconsistency between the LLC
Agreement and these By-Laws, the provision
of the LLC Agreement shall control.
Finally, the Exchange proposes to
make technical and conforming changes
to the time and date of effectiveness on
the signature pages of each of the
Certificate of Formation, LLC Agreement
and By-Laws. The Exchange also
proposes to amend the signature line of
the LLC Agreement to insert the full title
of the signatory as ‘‘Thomas P.
Gallagher, Chairman and Chief
Executive Officer.’’
2. Statutory Basis
The Exchange believes the proposed
rule change is consistent with the Act
and the rules and regulations
thereunder applicable to the Exchange
and, in particular, the requirements of
Section 6(b) of the Act.11 Specifically,
the Exchange believes the proposed rule
change is consistent with the Section
6(b)(5) 12 requirements that the rules of
an exchange be 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.
Additionally, the Exchange believes the
proposed rule change is consistent with
the Section 6(b)(5) 13 requirement that
the rules of an exchange not be designed
to permit unfair discrimination between
customers, issuers, brokers, or dealers.
The Exchange believes that the
proposed changes to the Certificate of
Formation, LLC Agreement and ByLaws are designed to prevent fraudulent
and manipulative acts and practices,
promote just and equitable principles of
trade, foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
11 15
12 15
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
13 Id.
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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Notices
information with respect to, and
facilitating transactions in securities,
remove impediments to and perfect the
mechanism of a free and open market
and a national market system, and, in
general, protect investors and the public
interest. The Exchange believes that the
proposed changes are non-substantive,
administrative changes and will reduce
potential investor or market participant
confusion regarding the Exchange’s
corporate documents. Further, the
Exchange believes the proposed changes
are not material and will have no impact
on the governance, ownership, or
operations of the Exchange.
The Exchange believes its proposal to
amend the Certificate of Formation, LLC
Agreement and By-Laws are consistent
with the Act as the changes are to
maintain accurate information
regarding, among other things, the
Exchange’s address, registered agent and
registered office.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. The
Exchange does not believe the proposed
rule change will impose any burden on
intra-market and inter-market
competition that is not necessary or
appropriate in furtherance of the
purposes of the Act because the
proposed changes are not intended to
address competitive issues but rather
are administrative, non-substantive
changes that are concerned solely with
updating the Certificate of Formation,
LLC Agreement and By-Laws to reflect
current, accurate information.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
14 15
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
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
19:46 Nov 16, 2020
Jkt 253001
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
Written comments were neither
solicited nor received.
VerDate Sep<11>2014
19(b)(3)(A) of the Act 14 and Rule 19b–
4(f)(6) thereunder.15
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 16 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 17
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
requested that the Commission waive
the 30-day operative delay. As the
proposed rule change raises no novel
issues and promotes accuracy and
consistency within the Exchange’s
Certificate of Formation, LLC
Agreement, and By-Laws, the
Commission believes that waiver of the
30-day operative delay is consistent
with the protection of investors and the
public interest. Accordingly, the
Commission hereby waives the
operative delay and designates the
proposed rule change operative upon
filing.18
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
change should be approved or
disapproved.
U.S.C. 78s(b)(3)(A).
15 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 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.
16 17 CFR 240.19b–4(f)(6).
17 17 CFR 240.19b–4(f)(6)(iii).
18 For purposes only of waiving the 30-day
operative delay, the Commission also has
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
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73317
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
EMERALD–2020–14 on the subject line.
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street NE,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–EMERALD–2020–14. 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 website (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 website 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.
Persons submitting comments are
cautioned that we do not redact or edit
personal identifying information from
comment submissions. You should
submit only information that you wish
to make available publicly. All
submissions should refer to File
Number SR–EMERALD–2020–14, and
should be submitted on or before
December 8, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–25266 Filed 11–16–20; 8:45 am]
BILLING CODE 8011–01–P
19 17
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]]>Agencies
[Federal Register Volume 85, Number 222 (Tuesday, November 17, 2020)]
[Notices]
[Pages 73315-73317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25266]
[[Page 73315]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-90393; File No. SR-EMERALD-2020-14]
Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
the Exchange's Certificate of Formation, Amended and Restated Limited
Liability Company Agreement, and the By-Laws
November 10, 2020.
Pursuant to the provisions of Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on October 28, 2020, MIAX Emerald, LLC (``MIAX
Emerald'' or ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'') a 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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend the Exchange's Certificate of
Formation (the ``Certificate of Formation''), Amended and Restated
Limited Liability Company Agreement (the ``LLC Agreement''), and the
By-Laws (the ``By-Laws'').
The text of the proposed rule change is available on the Exchange's
website at https://www.miaxoptions.com/rule-filings/emerald at MIAX
Emerald's principal office, 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
Changes to the Certificate of Formation
The Exchange proposes to amend the Certificate of Formation to make
several non-substantive, administrative and clarifying changes. The
Exchange first proposes to amend the title of the document in order to
accurately reflect the amended document title as the ``Amended and
Restated Certificate of Formation of MIAX Emerald, LLC,'' in accordance
with the proposed amendments described below.
On January 30, 2018, the Exchange executed the original Certificate
of Formation. The Exchange proposes delete the entire sentence in the
first paragraph and insert a sentence to clarify that the Certificate
of Formation has been executed in accordance with Section 18-208 of the
Limited Liability Company Act, and that this document is being amended
to restate the original Certificate of Formation. With the proposed
changes, the first paragraph of the Certificate of Formation will be as
follows:
This filing has been executed and filed in accordance with
Section 18-208 of the Limited Liability Company Act. This document
is being executed for the purpose of amending and restating the
original Certificate of Formation, filed on January 30, 2018, under
file number: 6528291.
The Exchange also proposes to amend the signature line for the
Certificate of Formation by deleting the current signature line and
inserting, as the signatory, ``Barbara J. Comly, EVP, General Counsel &
Corporate Secretary.''
The purpose of the proposed changes to the Certificate of Formation
are to ensure that the Exchange's Certificate of Formation accurately
reflects correct, current information, including the name of the
amended document, in order to reduce potential investor or market
participant confusion.
Changes to the LLC Agreement
The Exchange proposes to amend the LLC Agreement to make several
non-substantive, administrative and clarifying changes. On February 1,
2018, the Exchange executed the original Limited Liability Company
Agreement (the ``original LLC Agreement''). On December 21, 2018, the
Exchange executed the Amended and Restated Limited Liability Company
Agreement (the ``Amended LLC Agreement''), which restated the original
LLC Agreement. The first paragraph of the LLC Agreement also refers to
the document as the ``Operating Agreement.'' \3\ The Exchange now
proposes to amend the first paragraph of the LLC Agreement to reflect
the current amended document, which will be the ``Second Amended and
Restated Limited Liability Company Agreement'' (the ``Second LLC
Agreement''). Accordingly, the Exchange proposes to update the text in
the first paragraph of the LLC Agreement to reflect this change,
thereby deleting reference to the name and date of the original LLC
Agreement, and inserting the name and date of the Amended LLC Agreement
as being amended and restated by the Second LLC Agreement. The Exchange
also proposes to delete the reference to the ``Operating Agreement,''
for purposes of clarity and uniformity.\4\ With the proposed changes,
the first paragraph of the LLC Agreement will be as follows:
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\3\ See LLC Agreement.
\4\ See id.
Miami International Holdings, Inc., a Delaware corporation, the
sole member (the ``LLC Member'') of MIAX Emerald, LLC, a Delaware
limited liability company (the ``Company''), pursuant to and in
accordance with the Delaware Limited Liability Company Act, 6 Del.C.
Sec. 18-101, et seq. (the ``LLC Act''), hereby declares the
following to be the Second Amended and Restated Limited Liability
Company Agreement (the ``LLC Agreement'') of the Company which
amends and restates in its entirety the Amended and Restated Limited
Liability Company Agreement dated December 21, 2018 of the Company.
Capitalized terms not otherwise defined herein shall have the
---------------------------------------------------------------------------
meanings set forth on Schedule A to this LLC Agreement.
Next, the Exchange proposes to amend Section 3 of the LLC Agreement
to amend the address referenced therein for the Exchange's principal
place of business. The Exchange has increased its office space at its
current address of 7 Roszel Road, Princeton, New Jersey 08540.\5\ The
new mailing and principal address for the Princeton, New Jersey office
is now 7 Roszel Road, Suite 1A, Princeton, New Jersey 08540.
Accordingly, the Exchange proposes to amend Section 3 of the LLC
Agreement to reflect the change in mailing address from ``5th Floor''
to ``Suite 1A.''
---------------------------------------------------------------------------
\5\ See id., Section 3.
---------------------------------------------------------------------------
The Exchange proposes to amend Section 4 of the LLC Agreement to
update the address of the Exchange's registered office in the State of
Delaware, as well as the Exchange's registered agent. In particular,
the Exchange proposes to delete the address and company name of the
registered office and registered agent, respectively,
[[Page 73316]]
as contained in the current LLC Agreement. The Exchange proposes to
insert in Section 4 of the LLC Agreement the updated address of its
registered office and the name of the Exchange's registered agent. With
the proposed changes, Section 4 of the LLC Agreement will be as
---------------------------------------------------------------------------
follows:
The registered office of the Company required by the LLC Act to
be maintained in the State of Delaware shall be 1209 Orange Street
in the City of Wilmington, County of New Castle, ZIP Code 19801 or
such other office as the Board of Directors may designate from time
to time. The registered agent for the Company shall be The
Corporation Trust Company, or such other registered agent as the
Board of Directors may designate from time to time.
Next, the Exchange proposes to amend Section 6 of the LLC Agreement
to clarify that Miami International Holdings, Inc. (``MIH'') is the
sole LLC Member \6\ of the Exchange and to update the address for MIH,
as described above. The Exchange also proposes to delete the reference
to ``Schedule B'' and the following sentence: ``The LLC Member was
admitted to the Company as an LLC Member of the Company upon its
execution of a counterpart signature page to the Operating Agreement at
which time it acquired 100% of the limited liability company interests
of the Company.'' The purpose of these changes is for administrative
ease and to provide uniformity throughout the LLC Agreement. The
Exchange also proposes to delete ``Schedule B'' from the LLC Agreement,
which simply states that the LLC Member is MIH. This is duplicative
information as the term ``LLC Member'' is defined in Schedule A to the
LLC Agreement.\7\ Accordingly, the Exchange proposes to delete Schedule
B and move the information regarding the LLC Member into Section 6.
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\6\ ``LLC Member'' means Miami International Holdings, Inc., as
the sole member of the Company. See LLC Agreement, Schedule A,
Definitions.
\7\ See id.
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Next, the Exchange proposes to amend Section 9 of the LLC Agreement
to delete the last sentence of Section 9(a), which states, ``The
Directors as of the date of this LLC Agreement are set forth on
Schedule C attached hereto.'' Schedule C of the LLC Agreement provides
the names and classifications of the Board of Directors of the Exchange
as of December 21, 2018. The Exchange proposes to delete Schedule C,
and all references to Schedule C, as further described below, from the
LLC Agreement. The names and classifications of the Board of Directors
of the Exchange are publicly available information through the
Commission's Electronic Data Gathering, Analysis, and Retrieval
(``EDGAR'') website.\8\ The purpose of these changes is for
administrative ease and to provide uniformity throughout the LLC
Agreement.
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\8\ See https://www.sec.gov/edgar/searchedgar/companysearch.html
and https://www.sec.gov/oiea/Article/edgarguide.html for EDGAR
filing information.
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The Exchange also proposes to amend the first sentence of Section
9(c) to clarify that the By-Laws \9\ of the Exchange have been adopted,
thereby deleting the phrase ``hereby adopt the,'' in order to clarify
that this has already occurred. Further, the Exchange proposes to
delete the reference to ``Exhibit A'' in Section 9(c). Exhibit A
currently provides that the By-Laws of MIAX Emerald are a separate
document from the LLC Agreement. The Exchange provides the By-Laws as
publicly available information on its website. Accordingly, additional
reference to the By-Laws in Exhibit A is duplicative.
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\9\ ``By-Laws'' has the meaning set forth in Section 9(c). See
LLC Agreement, Schedule A, Definitions.
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Next, the Exchange proposes to amend Section 29 of the LLC
Agreement to delete the reference to ``Schedule B'' and provide a
cross-reference to Section 6 for the address of the LLC Member, as
described above. These proposed changes will provide clarity and
uniformity throughout the LLC Agreement.
The Exchange next proposes to amend ``Schedule A, Definitions'' to
the LLC Agreement to delete the definition for ``Operating Agreement.''
As described above, the Exchange is amending and restating the LLC
Agreement for the second time and as such, is removing the reference in
the first paragraph of the LLC Agreement to the ``Operating
Agreement.''
Changes to the By-Laws
The Exchange proposes to amend the By-Laws to make several non-
substantive, administrative and clarifying changes. First, the Exchange
proposes to amend the title of the By-Laws to insert the phrase
``Amended and Restated.'' The Exchange proposes to amend the first
paragraph of the By-Laws to insert the phrase ``Amended and Restated''
in front of the first time the word ``By-Laws'' appears and to delete
the phrases ``Amended and Restated'' and ``dated as of December 21,
2018,'' both of which refer to the LLC Agreement.\10\ The purpose of
these changes is for administrative ease and to provide uniformity
among the titles of each of the Exchange's corporate documents. With
the proposed changes, the first paragraph of the By-Laws will be as
follows:
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\10\ See By-Laws.
These Amended and Restated By-Laws have been established as the
By-Laws of MIAX Emerald, LLC, a Delaware limited liability company
(the ``Company''), pursuant to the Limited Liability Company
Agreement of the Company (as amended from time to time, the ``LLC
Agreement''), and, together with the LLC Agreement, constitute the
limited liability company agreement of the Company within the
meaning of the LLC Act (as defined in the LLC Agreement). In the
event of any inconsistency between the LLC Agreement and these By-
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Laws, the provision of the LLC Agreement shall control.
Finally, the Exchange proposes to make technical and conforming
changes to the time and date of effectiveness on the signature pages of
each of the Certificate of Formation, LLC Agreement and By-Laws. The
Exchange also proposes to amend the signature line of the LLC Agreement
to insert the full title of the signatory as ``Thomas P. Gallagher,
Chairman and Chief Executive Officer.''
2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of Section 6(b) of the
Act.\11\ Specifically, the Exchange believes the proposed rule change
is consistent with the Section 6(b)(5) \12\ requirements that the rules
of an exchange be 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.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \13\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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\11\ 15 U.S.C. 78f(b).
\12\ 15 U.S.C. 78f(b)(5).
\13\ Id.
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The Exchange believes that the proposed changes to the Certificate
of Formation, LLC Agreement and By-Laws are designed to prevent
fraudulent and manipulative acts and practices, promote just and
equitable principles of trade, foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
[[Page 73317]]
information with respect to, and facilitating transactions in
securities, remove impediments to and perfect the mechanism of a free
and open market and a national market system, and, in general, protect
investors and the public interest. The Exchange believes that the
proposed changes are non-substantive, administrative changes and will
reduce potential investor or market participant confusion regarding the
Exchange's corporate documents. Further, the Exchange believes the
proposed changes are not material and will have no impact on the
governance, ownership, or operations of the Exchange.
The Exchange believes its proposal to amend the Certificate of
Formation, LLC Agreement and By-Laws are consistent with the Act as the
changes are to maintain accurate information regarding, among other
things, the Exchange's address, registered agent and registered office.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange does not
believe the proposed rule change will impose any burden on intra-market
and inter-market competition that is not necessary or appropriate in
furtherance of the purposes of the Act because the proposed changes are
not intended to address competitive issues but rather are
administrative, non-substantive changes that are concerned solely with
updating the Certificate of Formation, LLC Agreement and By-Laws to
reflect current, accurate information.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
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 \14\ and Rule 19b-
4(f)(6) thereunder.\15\
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\14\ 15 U.S.C. 78s(b)(3)(A).
\15\ 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 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 \16\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \17\ 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 requested that the Commission waive the 30-day operative delay. As
the proposed rule change raises no novel issues and promotes accuracy
and consistency within the Exchange's Certificate of Formation, LLC
Agreement, and By-Laws, the Commission believes that waiver of the 30-
day operative delay is consistent with the protection of investors and
the public interest. Accordingly, the Commission hereby waives the
operative delay and designates the proposed rule change operative upon
filing.\18\
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\16\ 17 CFR 240.19b-4(f)(6).
\17\ 17 CFR 240.19b-4(f)(6)(iii).
\18\ For purposes only of waiving the 30-day operative delay,
the Commission also 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 change 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 [email protected]. Please include
File Number SR-EMERALD-2020-14 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-EMERALD-2020-14. 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 website (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 website 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. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-EMERALD-2020-14, and should be submitted
on or before December 8, 2020.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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\19\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25266 Filed 11-16-20; 8:45 am]
BILLING CODE 8011-01-P
