81 FR 29600 - Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE Arca, Inc.; NYSE MKT LLC; Order Approving Proposed Rule Change Amending and Restating the Fifth Amended and Restated Bylaws of the Exchanges' Ultimate Parent Company, Intercontinental Exchange, Inc., To Implement Proxy Access
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 81, Issue 92 (May 12, 2016)
Federal Register Volume 81, Issue 92 (May 12, 2016)
| Page Range | 29600-29603 | |
| FR Document | 2016-11178 |
[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)] [Notices] [Pages 29600-29603] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-11178] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Release No. 34-77782; File Nos. SR-NYSE-2016-14; SR-NYSEArca-2016-25; SR-NYSEMKT-2016-20] Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE Arca, Inc.; NYSE MKT LLC; Order Approving Proposed Rule Change Amending and Restating the Fifth Amended and Restated Bylaws of the Exchanges' Ultimate Parent Company, Intercontinental Exchange, Inc., To Implement Proxy Access May 6, 2016. I. Introduction On March 2, 2016, each of the New York Stock Exchange LLC (``NYSE''), NYSE Arca, Inc. (``NYSE Arca'') and NYSE MKT LLC (``NYSE MKT'' and, together with NYSE and NYSE Arca, ``Exchanges'') filed with the Securities and Exchange Commission (``Commission'') pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to amend and restate the Fifth Amended and Restated Bylaws (``Bylaws'') of the Exchanges' ultimate parent company, Intercontinental Exchange, Inc. (``ICE''),\3\ to implement proxy access. The proposed rule changes were published for comment in the Federal Register on March 22, 2016.\4\ No comment letters were received in response to the proposals. This order approves the proposed rule changes. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ ICE owns 100% of the equity interest in Intercontinental Exchange Holdings, Inc., which in turn owns 100% of the equity interest in NYSE Holdings LLC. NYSE Holdings LLC owns 100% of the equity interest of NYSE Group, Inc., which owns 100% of the equity interest of each of the Exchanges. ICE is a publicly traded company listed on the NYSE. \4\ See Securities Exchange Act Release Nos. 77384 (Mar. 17, 2016), 81 FR 15371 (Mar. 22, 2016) (SR-NYSE-2016-14); 77385 (Mar. 17, 2016), 81 FR 15378 (Mar. 22, 2016) (SR-NYSEArca-2016-25); and 77386 (Mar. 17, 2016), 81 FR 15366 (Mar. 22, 2016) (SR-NYSEMKT-2016- 20) (collectively, ``Notices''). --------------------------------------------------------------------------- II. Description of the Proposed Rule Changes The Exchanges propose to amend and restate the Bylaws to add a new Section 2.15 that would, subject to a number of requirements, permit stockholders to nominate director nominees for election to the Board of Directors of ICE (``Board'') and require ICE to include such director nominations in its proxy materials for the next annual meeting of stockholders (``Proxy Materials''). The Exchanges further propose to amend certain advance notice provisions in Section 2.13 of the Bylaws to account for the implementation of proxy access in proposed Section 2.15.\5\ --------------------------------------------------------------------------- \5\ See Notices, supra note 4, for a more detailed description of the proposed amendments. --------------------------------------------------------------------------- Proposed Section 2.15 of the Bylaws Proposed Section 2.15 of the Bylaws would enable an individual stockholder, or a group of up to 20 stockholders, to nominate director nominees for the Board and have them included in the Proxy Materials, so long as such stockholder or stockholders have collectively owned at least three percent of ICE's outstanding shares of common stock continuously for at least three years.\6\ No stockholder would be permitted to participate in more than one group, and any stockholder appearing as a member of more than one group would be counted as a member of the group with the largest ownership position.\7\ Notwithstanding the foregoing, a stockholder whose nominee is elected to the Board at an annual meeting under proposed Section 2.15 would not be eligible to nominate another candidate for the next two annual meetings.\8\ --------------------------------------------------------------------------- \6\ Proposed Section 2.15(c)(i)-(iii). Shares may be counted as ``owned'' only where a stockholder possesses both the full voting and investment rights pertaining to the shares, as well as the full economic interest in such shares. Id. at 2.15(c)(iv). \7\ Id. at 2.15(c)(v). \8\ Id. at 2.15(c)(i). --------------------------------------------------------------------------- In order to nominate a director nominee to be included in the Proxy Materials under proposed Section 2.15, a stockholder would need to submit a notice (``Nomination Notice'') to the Secretary of ICE, no earlier than the close of business 150 calendar days, and no later than the close of business 120 calendar days, before the anniversary of the date that ICE mailed its Proxy Materials for the previous year's annual meeting.\9\ In proposed Section 2.15, the Exchanges propose to set forth in the Bylaws the specific information that would be needed to be included in the Nomination Notice. The following information is required for the Nomination Notice: --------------------------------------------------------------------------- \9\ Id. at 2.15(d). If an annual meeting is not scheduled to be held within a period that commences 30 days before and ends 30 days after the anniversary date, the nominating stockholder would be required to submit the Nomination Notice by the later of the close of business 120 days prior to the date of such annual meeting or the tenth day following the first public disclosure of the annual meeting date. Id. ---------------------------------------------------------------------------A Schedule 14N \10\ (or any successor form) relating to the nomination, completed and filed with the Commission; \11\ --------------------------------------------------------------------------- \10\ 17 CFR 240.14n-101. \11\ Proposed Section 2.15(d)(i). --------------------------------------------------------------------------- a written notice of the nomination \12\ containing a statement in support of the nominee's election to the Board, if desired, as well as the following representations and warranties by each nominating stockholder: --------------------------------------------------------------------------- \12\ Id. at 2.15(d)(ii). The written notice would need to include certain information that is required for the nomination of directors by Section 2.13(b) of the Bylaws and details regarding any relationship in the past three years that would have been described by Item 6(e) of Schedule 14N if that relationship had existed on the date of submission of the Schedule 14N. Id. at 2.15(d)(ii)(A) and (B). In the case of a nomination by a group, the notice would also need to include the designation by all group members of one group member authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination. Id. at 2.15(d)(ii)(K). --------------------------------------------------------------------------- [cir] That the nominating stockholder did not acquire, and is not holding, securities of ICE for the purpose or with the effect of influencing or changing control of ICE; [cir] that the nominee's candidacy or, if elected, membership on the Board would not violate applicable state or federal law or the rules of the principal national securities exchange on which ICE's securities are traded; [cir] that the nominee does not have any direct or indirect relationship with ICE that will cause the nominee to be deemed not independent under the Board's Independence Policy; \13\ --------------------------------------------------------------------------- \13\ The Board's current Independence Policy can be found at: http://ir.theice.com/~/media/Files/I/Ice-IR/documents/corporate- governance-documents/board-independence-policy.pdf. --------------------------------------------------------------------------- [cir] that the nominee qualifies as independent under the rules of the principal national securities exchange on which ICE's common stock is traded and meets that exchange's audit [[Page 29601]] committee independence requirements; \14\ --------------------------------------------------------------------------- \14\ The NYSE is the principal market for ICE's common stock. Its independent director standards are set forth in NYSE's Listed Company Manual in Sections 303A.00, 303A.01 and 303A.02, and its audit committee independence requirements are set forth in NYSE's Listed Company Manual under Sections 303A.06 and 303A.07. --------------------------------------------------------------------------- [cir] that the nominee is a ``non-employee director'' for the purposes of Rule 16b-3 under the Exchange Act,\15\ is an ``outside director'' for purposes of Section 162(m) of the Internal Revenue Code,\16\ and is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D under the Securities Act of 1933 \17\ or Item 401(f) of Regulation S-K under the Exchange Act; \18\ --------------------------------------------------------------------------- \15\ 17 CFR 240.16b-3. \16\ 26 U.S.C. 162(m). \17\ 17 CFR 230.506(d)(1) (identifying ``bad actors'' who will be disqualified from a safe harbor related to the private offering exemption of Section 4(a)(2) of the Securities Act). \18\ 17 CFR 229.401(f) (requiring director nominees to disclose participation in certain legal proceedings). --------------------------------------------------------------------------- [cir] that the nominating stockholder satisfies the eligibility requirements set forth in proposed Section 2.15 of the Bylaws and intends to continue to satisfy such requirements through the date of the annual meeting; and [cir] that the nominating stockholder will not engage in a ``solicitation'' within the meaning of Rule 14a-1(l) under the Exchange Act \19\ in support of the election of any individual as a director at the applicable annual meeting, other than its nominee(s) or any nominee of the Board of Directors and will not use any proxy card other than ICE's proxy card in soliciting stockholders in connection with the election of its nominee. --------------------------------------------------------------------------- \19\ 17 CFR 240.14a-1(l). --------------------------------------------------------------------------- an executed agreement,\20\ pursuant to which each nominating stockholder agrees: --------------------------------------------------------------------------- \20\ Proposed Section 2.15(d)(iii). --------------------------------------------------------------------------- [cir] To comply with all applicable laws, rules and regulations in connection with the nomination, solicitation, and election of a nominee; [cir] to file any written solicitation or other communication with ICE stockholders relating to ICE directors, director nominees, or the nominating stockholder's nominee with the Commission; [cir] to assume all liability stemming from an action, suit, or proceeding relating to any actual or alleged legal or regulatory violations arising out of any communication by the nominating stockholder or its nominee in connection with the nomination or election of directors, including the Nomination Notice; [cir] to indemnify ICE and its directors, officers, and employees against any liability incurred in connection with any action, suit, or proceeding relating to a failure or alleged failure of the nominating stockholder or its nominees to comply with, or a breach or alleged breach of, its respective obligations, agreements, or representations under proposed Section 2.15; and [cir] to promptly notify ICE and any other recipients of communications by the nominating stockholder in connection with the nomination or election of a director nominee if (1) any information included in such communications or in the Nomination Notice ceases to be true and accurate in all material respects or a material fact necessary to make a statement not misleading has been omitted or (2) the nominating stockholder has failed to continue to satisfy the eligibility requirements described in proposed Section 2.15(c); and an executed agreement,\21\ by the nominee: --------------------------------------------------------------------------- \21\ Id. at 2.15(d)(iv). --------------------------------------------------------------------------- [cir] to provide to ICE such other information and certifications, including completion of ICE's director questionnaire, as it may reasonably request; [cir] that the nominee has read and agrees, if elected, to serve as a member of the Board and to adhere to ICE's Corporate Governance Guidelines and Global Code of Business Conduct and any other policies and guidelines applicable to directors; and [cir] that the nominee is not and will not become a party to any (i) undisclosed financial agreement or arrangement with any person or entity other than ICE in connection with his or her service or action as a director of ICE, (ii) undisclosed agreement or arrangement with any person or entity as to how the nominee would vote or act on any issue or question as a director of ICE; or (iii) voting commitment that could reasonably be expected to interfere with the nominee's ability to comply, if elected, with his or her fiduciary duties under applicable law. If so requested in the relevant Nomination Notice, and subject to the requirements set forth in proposed Section 2.15,\22\ ICE must include in its Proxy Materials information regarding a director nominee nominated for election pursuant to proposed Section 2.15, including: (1) The name of the nominee (which must also be included on ICE's form of proxy and ballot), (2) certain disclosures regarding the director nominee and each nominating stockholder that are required by the Commission or other applicable law to be included in the Proxy Materials, (3) a statement in support of the nominee's election to the Board included in the Nomination Notice, subject to compliance with Section 14 of the Exchange Act \23\ and the rules thereunder, and (4) any other information that ICE or the Board determines,\24\ in its discretion, to include in the Proxy Materials relating to the nomination of the nominee, including any statement in opposition to the nomination.\25\ --------------------------------------------------------------------------- \22\ The chairman of any annual meeting of stockholders shall have the power and duty to determine whether a nominee has been nominated in accordance with the requirements of proposed Section 2.15 and, if not so nominated, shall direct and declare at the annual meeting that such Nominee shall not be considered. Id. at 2.15(a). \23\ 15 U.S.C. 78n. \24\ For the purposes of proposed Section 2.15, any determination to be made by the Board may be made by the Board, a committee of the Board, or any officer of ICE designated by the Board or a committee of the Board, and such determination will be final and binding on ICE and any other person so long as made in good faith. Proposed Section 2.15(a). \25\ Id. --------------------------------------------------------------------------- Notwithstanding the foregoing, ICE may omit from the Proxy Materials, or may supplement or correct, any information, including all or any portion of the statement in support of the nominee included in the Nomination Notice, if the Board determines that: (1) Such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading; (2) such information directly or indirectly impugns the character, integrity, or personal reputation of, or directly or indirectly makes charges concerning improper, illegal, or immoral conduct or associations, without factual foundation, with respect to, any person; or (3) the inclusion of such information in the Proxy Materials would otherwise violate the federal proxy rules or any other applicable law, rule or regulation.\26\ ICE may solicit against, and include in the Proxy Materials its own statement relating to, any nominee.\27\ --------------------------------------------------------------------------- \26\ Id. at 2.15(e)(ii) \27\ Id. --------------------------------------------------------------------------- Under the proposal, there is a limit to the number of director nominees submitted pursuant to proposed Section 2.15 that may be included in the Proxy Materials. Specifically, ICE would not be required to include in the Proxy Materials more nominees submitted pursuant to proposed Section 2.15 than that number of directors constituting twenty percent of the total number of directors of the Board (rounded down to the nearest whole number, but not less [[Page 29602]] than two).\28\ This maximum number of permitted nominees would be further reduced by (1) the number of nominees that are subsequently withdrawn after nomination or that the Board itself decides to nominate for election and (2) the number of incumbent directors, if any, who were nominated pursuant to proposed Section 2.15 at the preceding annual meeting and whose re-election is recommended by the Board.\29\ Thus, the maximum number of nominees permitted pursuant to proposed Section 2.15 in any given year could be fewer than two.\30\ Where the number of nominees submitted pursuant to proposed Section 2.15 exceeds the maximum number permitted, each nominating stockholder--in order of ownership position, largest to smallest--would select a director nominee until the maximum number of nominees is reached.\31\ --------------------------------------------------------------------------- \28\ Id. at 2.15(b)(i). \29\ Id. \30\ See Notices, supra note 4, at 81 FR 15372, 15379, and 15367, respectively. \31\ Proposed Section 2.15(b)(ii). --------------------------------------------------------------------------- Proposed Section 2.15 would allow the Board to disregard director nominations submitted pursuant to proposed Section 2.15 in certain circumstances. If the Board determines that a nominee or nominating stockholder no longer satisfies the eligibility requirements, a nominating stockholder withdraws its nomination, or a nominee is unwilling or unable to serve as a director, the Board may disregard the nomination and ICE would not be required to include the nominee in the Proxy Materials and could affirmatively inform stockholders that the nominee would not be voted on at the annual meeting.\32\ --------------------------------------------------------------------------- \32\ Id. at 2.15(b)(ii). See also infra note 33 and accompanying text (permitting the Board to omit stockholder nominees from the Proxy Materials in the same circumstances). --------------------------------------------------------------------------- In addition, the proposal permits ICE to omit nominees submitted pursuant to proposed Section 2.15 from the Proxy Materials (and to prohibit any vote on such nominee) in the following situations: The nominating stockholder(s) (or representatives thereof) fail to present the nomination at the annual meeting or withdraw the nomination; the Board determines that the nomination or election of the nominee would result in ICE violating or failing to be in compliance with its certificate of incorporation, the Bylaws, or any applicable law, rule or regulation to which it is subject, including any rule or regulation of the principal national securities exchange on which ICE's securities are traded; the nominee was nominated for election to the Board pursuant to Section 2.15 at one of ICE's two preceding annual meetings of stockholders and withdrew, became ineligible, or failed to receive 20% of the vote; the nominee has been, within the past three years an officer or director of a competitor or is a U.S. Disqualified Person as defined in ICE's certificate of incorporation; ICE is notified, or the Board determines, that: (i) A nominating stockholder has failed to continue to satisfy the eligibility requirements of proposed Section 2.15; (ii) any of the representations and warranties made in the Nomination Notice cease to be true and accurate in all material respects (or omit a material fact necessary to make the statements made not misleading); (iii) the nominee becomes unwilling or unable to serve on the Board, or (iv) the nominee or nominating stockholder materially violate or breach the obligations, agreements, representations, or warranties made under proposed Section 2.15; or ICE receives a notice under Section 2.13 that a stockholder intends to nominate a candidate for director at the annual meeting.\33\ --------------------------------------------------------------------------- \33\ Id. at 2.15(e)(i). --------------------------------------------------------------------------- Amendments to Section 2.13 of the Bylaws Currently, Section 2.13 of the Bylaws sets forth a process by which ICE stockholders may nominate directors at their annual and special meetings, including certain advance notice requirements.\34\ The Exchanges propose to amend the advance notice provisions in Section 2.13 to address the application of those provisions to stockholder nominations submitted under the proxy access provision in proposed Section 2.15. The proposed amendments would require director nominations submitted by stockholders pursuant to proposed Section 2.15 to be specified in the notice of annual meeting given by the Board, but they would exempt such nominations from other timing and notice requirements set forth in Section 2.13.\35\ --------------------------------------------------------------------------- \34\ See Bylaws, Section 2.13. \35\ Proposed Section 2.13(b). The Exchanges have also proposed to amend Section 2.13(d) to clarify that the definition of ``publicly announced or disclosed'' set forth in that provision shall apply to Section 2.15. Proposed Section 2.13(d). --------------------------------------------------------------------------- III. Discussion and Commission Findings After careful review, the Commission finds that the proposed rule changes are consistent with the requirements of Section 6 of the Act \36\ and the rules and regulations thereunder applicable to a national securities exchange.\37\ In particular, the Commission finds that the proposed rule changes are consistent with the requirements of Section 6(b)(5) of the Act, which requires, among other things, that an exchange's rules be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, 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.\38\ --------------------------------------------------------------------------- \36\ 15 U.S.C. 78f(b). \37\ In approving these proposed rule changes, the Commission has considered the proposed rules' impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). \38\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- A shareholder who wishes to nominate his or her own candidate for director may initiate a proxy contest in order to solicit proxies from fellow shareholders, but doing so requires the preparation and dissemination of separate proxy materials and entails substantial cost. Proposed Section 2.15 of the Bylaws provides ICE shareholders an alternative path for having their nominees considered through the proxy process. This proposed rule change is intended to respond to a request made by ICE shareholders regarding proxy access.\39\ --------------------------------------------------------------------------- \39\ In November 2015, the Comptroller of the City of New York, on behalf of certain city retirement systems that are stockholders of ICE, requested that ICE include a proxy access proposal in its 2016 proxy statement. After discussions with the Comptroller's office, ICE management determined to recommend the proposed rule changes to the Board and, on that basis, the Comptroller's request was withdrawn. See Notices, supra note 4, at 81 FR 15374, 15382, and 15370, respectively. --------------------------------------------------------------------------- The Exchanges state that the proposal, by providing a process for certain stockholders to nominate directors to be included in the Proxy Materials,\40\ should help to strengthen the corporate governance of ICE and foster accountability to ICE's stockholders, thereby protecting investors and the public interest.\41\ The Commission believes that the proposal to provide a process for shareholder proxy access in the Bylaws of ICE, the ultimate parent company of the Exchanges, should help to provide the stockholders of ICE that meet the stated requirements of proposed Section 2.15 with an [[Page 29603]] alternative opportunity to exercise their right to nominate directors for the Board, consistent with the Exchange Act. --------------------------------------------------------------------------- \40\ As discussed above, however, the number of permitted director nominees under Section 2.15 may constitute less than twenty percent of the number of directors currently serving on the Board under certain circumstances and could be less than two nominees. See supra notes 28-30 and accompanying text; Proposed Section 2.15(b)(i). \41\ See Notices, supra note 4, at 81 FR 15371, 15378, and 15367, respectively. --------------------------------------------------------------------------- The proposed rule changes will require ICE to include in its Proxy Materials information regarding a director nominee nominated pursuant to proposed Section 2.15 in its Proxy Materials, including disclosures regarding the nominee and nominating stockholder(s), any statement in support of the nominee provided by the nominating stockholder(s), and any other information that ICE or the Board determines to include relating to the nomination. The Commission believes that the provision of such information could help stockholders to assess whether a nominee submitted pursuant to proposed Section 2.15 possesses the necessary qualifications and experience to serve as a director. The proposed rule changes limit the availability of proxy access in certain circumstances. For example, in order to be eligible to submit a nomination to be included in the Proxy Materials pursuant to proposed Section 2.15, a shareholder (or group of shareholders) is required to own at least three percent of ICE's outstanding shares of common stock continuously for at least three years. Furthermore, a shareholder may not nominate a director to be included in the Proxy Materials pursuant to proposed Section 2.15 if he or she is holding ICE's securities with the intent of effecting a change of control of ICE. The proposed rule changes also generally would limit the number of director nominees submitted pursuant to proposed Section 2.15 that may be included in the Proxy Materials to twenty percent of the total number of directors of the Board. The proposed rule changes would allow ICE to disregard or omit nominees submitted pursuant to proposed Section 2.15 from the Proxy Materials in certain circumstances, including if the Board determines that the nomination or election of the nominee would result in ICE violating or failing to be in compliance with its governing documents or any applicable law, rule or regulation to which it is subject.\42\ The Commission notes that such limitations on proxy access seem designed to balance the ability of ICE shareholders to participate more fully in the nomination and election process against the potential cost and practical difficulties of requiring inclusion of shareholder nominations in proxy materials. --------------------------------------------------------------------------- \42\ See, e.g., Proposed Section 2.15(e)(i)(C). --------------------------------------------------------------------------- The Commission notes that the proposed proxy access provisions include safeguards to help verify that any director nominees submitted pursuant to proposed Section 2.15 would qualify as independent directors and that the nominating shareholder's nomination of the nominee, and the nominee's membership on the Board, if elected, would not violate any applicable laws, rules or regulations of any government entity or relevant self-regulatory organization. Specifically, the nominating stockholder must represent and warrant, among other things, that: (i) The nominee's candidacy or, if elected, membership on the Board would not violate applicable state or federal law or the rules of the principal national securities exchange on which ICE's securities are traded; (ii) the nominee does not have any direct or indirect relationship with ICE that will cause the nominee to be deemed not independent under the Board's Independence Policy; \43\ and (iii) the nominee qualifies as independent under the rules of the principal national securities exchange on which ICE's common stock is traded and meets that exchange's audit committee independence requirements.\44\ In addition, each nominating stockholder is required to provide an executed agreement, pursuant to which he or she agrees to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation, and election of a nominee. The nominee is also required to provide an executed agreement, pursuant to which: (i) If elected, the nominee agrees to adhere to ICE's Corporate Governance Guidelines and Global Code of Business Conduct and any other policies and guidelines applicable to directors; and (ii) the nominee agrees that he or she is not and will not become party to certain financial or voting arrangements that may present conflicts of interest or interfere with the nominee's ability to comply, if elected, with his or her fiduciary duties under applicable law.\45\ --------------------------------------------------------------------------- \43\ See also id. (permitting ICE to omit from its Proxy Materials any nominee submitted pursuant to proposed Section 2.15 if the Board determines that nomination or election of that nominee to the Board would cause ICE to violate or fail to be in compliance with its Bylaws, its certificate of incorporation, or any applicable law, rule or regulation, including any rules or regulations of the principal national securities exchange on which ICE's common stock is traded). \44\ See supra notes 12-19 and accompanying text. \45\ See supra notes 20-21 and accompanying text. --------------------------------------------------------------------------- The Commission notes that the safeguards and limitations described above should help to ensure ICE can comply with its bylaws and any applicable laws, rules, regulations, including, among others, the Board's Independence Policy and exchange listing standards on independent directors and audit committees, consistent with Section 6(b)(5) of the Act. Based on the foregoing, the Commission finds that the proposed rule changes filed by the Exchanges are consistent with the Act. V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,\46\ that the proposed rule changes (SR-NYSE-2016-14, SR-NYSEArca- 2016-25, SR-NYSEMKT-20), be, and hereby are, approved. --------------------------------------------------------------------------- \46\ 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\47\ --------------------------------------------------------------------------- \47\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Robert W. Errett, Deputy Secretary. [FR Doc. 2016-11178 Filed 5-11-16; 8:45 am] BILLING CODE 8011-01-P
![29600 Federal Register / Vol. 81, No. 92 / Thursday, May 12, 2016 / Notices
inspection and copying at the principal Register on March 22, 2016.4 No calendar days, before the anniversary of
office of the Exchange. All comments comment letters were received in the date that ICE mailed its Proxy
received will be posted without change; response to the proposals. This order Materials for the previous year’s annual
the Commission does not edit personal approves the proposed rule changes. meeting.9 In proposed Section 2.15, the
identifying information from Exchanges propose to set forth in the
II. Description of the Proposed Rule
submissions. You should submit only Changes Bylaws the specific information that
information that you wish to make would be needed to be included in the
available publicly. All submissions The Exchanges propose to amend and Nomination Notice. The following
should refer to File Number SR- restate the Bylaws to add a new Section information is required for the
BatsEDGX–2016–13, and should be 2.15 that would, subject to a number of Nomination Notice:
requirements, permit stockholders to
submitted on or before June 2, 2016. • A Schedule 14N 10 (or any
nominate director nominees for election
For the Commission, by the Division of successor form) relating to the
to the Board of Directors of ICE
Trading and Markets, pursuant to delegated nomination, completed and filed with
authority.14 (‘‘Board’’) and require ICE to include
the Commission; 11
such director nominations in its proxy
Robert W. Errett,
materials for the next annual meeting of • a written notice of the
Deputy Secretary. stockholders (‘‘Proxy Materials’’). The nomination 12 containing a statement in
[FR Doc. 2016–11155 Filed 5–11–16; 8:45 am] Exchanges further propose to amend support of the nominee’s election to the
BILLING CODE 8011–01–P certain advance notice provisions in Board, if desired, as well as the
Section 2.13 of the Bylaws to account following representations and
for the implementation of proxy access warranties by each nominating
SECURITIES AND EXCHANGE in proposed Section 2.15.5 stockholder:
COMMISSION Æ That the nominating stockholder
Proposed Section 2.15 of the Bylaws
did not acquire, and is not holding,
Release No. 34–77782; File Nos. SR–NYSE– Proposed Section 2.15 of the Bylaws securities of ICE for the purpose or with
2016–14; SR–NYSEArca–2016–25; SR– would enable an individual stockholder, the effect of influencing or changing
NYSEMKT–2016–20] or a group of up to 20 stockholders, to control of ICE;
nominate director nominees for the
Self-Regulatory Organizations; New Æ that the nominee’s candidacy or, if
Board and have them included in the
York Stock Exchange LLC; NYSE Arca, elected, membership on the Board
Proxy Materials, so long as such
Inc.; NYSE MKT LLC; Order Approving would not violate applicable state or
stockholder or stockholders have
Proposed Rule Change Amending and federal law or the rules of the principal
collectively owned at least three percent
Restating the Fifth Amended and national securities exchange on which
of ICE’s outstanding shares of common
Restated Bylaws of the Exchanges’ ICE’s securities are traded;
stock continuously for at least three
Ultimate Parent Company, years.6 No stockholder would be Æ that the nominee does not have any
Intercontinental Exchange, Inc., To permitted to participate in more than direct or indirect relationship with ICE
Implement Proxy Access one group, and any stockholder that will cause the nominee to be
appearing as a member of more than one deemed not independent under the
May 6, 2016. Board’s Independence Policy; 13
group would be counted as a member of
I. Introduction the group with the largest ownership Æ that the nominee qualifies as
position.7 Notwithstanding the independent under the rules of the
On March 2, 2016, each of the New
foregoing, a stockholder whose nominee principal national securities exchange
York Stock Exchange LLC (‘‘NYSE’’), is elected to the Board at an annual on which ICE’s common stock is traded
NYSE Arca, Inc. (‘‘NYSE Arca’’) and meeting under proposed Section 2.15 and meets that exchange’s audit
NYSE MKT LLC (‘‘NYSE MKT’’ and, would not be eligible to nominate
together with NYSE and NYSE Arca, another candidate for the next two 9 Id. at 2.15(d). If an annual meeting is not
‘‘Exchanges’’) filed with the Securities annual meetings.8 scheduled to be held within a period that
and Exchange Commission In order to nominate a director commences 30 days before and ends 30 days after
(‘‘Commission’’) pursuant to Section nominee to be included in the Proxy the anniversary date, the nominating stockholder
19(b)(1) of the Securities Exchange Act would be required to submit the Nomination Notice
Materials under proposed Section 2.15, by the later of the close of business 120 days prior
of 1934 (‘‘Act’’) 1 and Rule 19b–4 a stockholder would need to submit a to the date of such annual meeting or the tenth day
thereunder,2 a proposed rule change to notice (‘‘Nomination Notice’’) to the following the first public disclosure of the annual
amend and restate the Fifth Amended Secretary of ICE, no earlier than the meeting date. Id.
and Restated Bylaws (‘‘Bylaws’’) of the close of business 150 calendar days, and
10 17 CFR 240.14n–101.
11 Proposed Section 2.15(d)(i).
Exchanges’ ultimate parent company, no later than the close of business 120 12 Id. at 2.15(d)(ii). The written notice would need
Intercontinental Exchange, Inc.
to include certain information that is required for
(‘‘ICE’’),3 to implement proxy access. 4 See Securities Exchange Act Release Nos. 77384
the nomination of directors by Section 2.13(b) of the
The proposed rule changes were (Mar. 17, 2016), 81 FR 15371 (Mar. 22, 2016) (SR– Bylaws and details regarding any relationship in the
published for comment in the Federal NYSE–2016–14); 77385 (Mar. 17, 2016), 81 FR past three years that would have been described by
15378 (Mar. 22, 2016) (SR–NYSEArca–2016–25); Item 6(e) of Schedule 14N if that relationship had
and 77386 (Mar. 17, 2016), 81 FR 15366 (Mar. 22, existed on the date of submission of the Schedule
14 17 CFR 200.30–3(a)(12). 2016) (SR–NYSEMKT–2016–20) (collectively, 14N. Id. at 2.15(d)(ii)(A) and (B). In the case of a
asabaliauskas on DSK3SPTVN1PROD with NOTICES
1 15 U.S.C. 78s(b)(1). ‘‘Notices’’). nomination by a group, the notice would also need
2 17 CFR 240.19b–4. 5 See Notices, supra note 4, for a more detailed
to include the designation by all group members of
3 ICE owns 100% of the equity interest in description of the proposed amendments. one group member authorized to act on behalf of
6 Proposed Section 2.15(c)(i)–(iii). Shares may be all group members with respect to matters relating
Intercontinental Exchange Holdings, Inc., which in
turn owns 100% of the equity interest in NYSE counted as ‘‘owned’’ only where a stockholder to the nomination, including withdrawal of the
Holdings LLC. NYSE Holdings LLC owns 100% of possesses both the full voting and investment rights nomination. Id. at 2.15(d)(ii)(K).
the equity interest of NYSE Group, Inc., which pertaining to the shares, as well as the full 13 The Board’s current Independence Policy can
owns 100% of the equity interest of each of the economic interest in such shares. Id. at 2.15(c)(iv). be found at: http://ir.theice.com/∼/media/Files/I/
7 Id. at 2.15(c)(v).
Exchanges. ICE is a publicly traded company listed Ice-IR/documents/corporate-governance-
on the NYSE. 8 Id. at 2.15(c)(i). documents/board-independence-policy.pdf.
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![Federal Register / Vol. 81, No. 92 / Thursday, May 12, 2016 / Notices 29603
alternative opportunity to exercise their The Commission notes that the including, among others, the Board’s
right to nominate directors for the proposed proxy access provisions Independence Policy and exchange
Board, consistent with the Exchange include safeguards to help verify that listing standards on independent
Act. any director nominees submitted directors and audit committees,
The proposed rule changes will pursuant to proposed Section 2.15 consistent with Section 6(b)(5) of the
require ICE to include in its Proxy would qualify as independent directors Act. Based on the foregoing, the
Materials information regarding a and that the nominating shareholder’s Commission finds that the proposed
director nominee nominated pursuant to nomination of the nominee, and the rule changes filed by the Exchanges are
proposed Section 2.15 in its Proxy nominee’s membership on the Board, if consistent with the Act.
Materials, including disclosures elected, would not violate any
applicable laws, rules or regulations of V. Conclusion
regarding the nominee and nominating
stockholder(s), any statement in support any government entity or relevant self- It is therefore ordered, pursuant to
of the nominee provided by the regulatory organization. Specifically, the Section 19(b)(2) of the Act,46 that the
nominating stockholder(s), and any nominating stockholder must represent proposed rule changes (SR–NYSE–
other information that ICE or the Board and warrant, among other things, that: 2016–14, SR–NYSEArca–2016–25, SR–
determines to include relating to the (i) The nominee’s candidacy or, if NYSEMKT–20), be, and hereby are,
nomination. The Commission believes elected, membership on the Board approved.
that the provision of such information would not violate applicable state or For the Commission, by the Division of
could help stockholders to assess federal law or the rules of the principal Trading and Markets, pursuant to delegated
whether a nominee submitted pursuant national securities exchange on which authority.47
to proposed Section 2.15 possesses the ICE’s securities are traded; (ii) the Robert W. Errett,
necessary qualifications and experience nominee does not have any direct or Deputy Secretary.
to serve as a director. indirect relationship with ICE that will [FR Doc. 2016–11178 Filed 5–11–16; 8:45 am]
The proposed rule changes limit the cause the nominee to be deemed not
BILLING CODE 8011–01–P
availability of proxy access in certain independent under the Board’s
circumstances. For example, in order to Independence Policy; 43 and (iii) the
be eligible to submit a nomination to be nominee qualifies as independent under SECURITIES AND EXCHANGE
included in the Proxy Materials the rules of the principal national COMMISSION
pursuant to proposed Section 2.15, a securities exchange on which ICE’s
common stock is traded and meets that [Release No. 34–77777; File No. SR–MIAX–
shareholder (or group of shareholders) is 2016–09]
required to own at least three percent of exchange’s audit committee
ICE’s outstanding shares of common independence requirements.44 In
Self-Regulatory Organizations; Miami
stock continuously for at least three addition, each nominating stockholder
International Securities Exchange LLC;
years. Furthermore, a shareholder may is required to provide an executed
Notice of Filing and Immediate
not nominate a director to be included agreement, pursuant to which he or she
Effectiveness of a Proposed Rule
in the Proxy Materials pursuant to agrees to comply with all applicable
Change To Amend Its Fee Schedule
laws, rules and regulations in
proposed Section 2.15 if he or she is
connection with the nomination, May 6, 2016.
holding ICE’s securities with the intent
solicitation, and election of a nominee. Pursuant to the provisions of Section
of effecting a change of control of ICE.
The nominee is also required to provide 19(b)(1) of the Securities Exchange Act
The proposed rule changes also
an executed agreement, pursuant to of 1934 (‘‘Act’’),1 and Rule 19b–4
generally would limit the number of
which: (i) If elected, the nominee agrees thereunder,2 notice is hereby given that
director nominees submitted pursuant
to adhere to ICE’s Corporate Governance on April 26, 2016, Miami International
to proposed Section 2.15 that may be
Guidelines and Global Code of Business Securities Exchange LLC (‘‘MIAX’’ or
included in the Proxy Materials to
Conduct and any other policies and ‘‘Exchange’’) filed with the Securities
twenty percent of the total number of
guidelines applicable to directors; and and Exchange Commission
directors of the Board. The proposed (ii) the nominee agrees that he or she is
rule changes would allow ICE to (‘‘Commission’’) a proposed rule change
not and will not become party to certain as described in Items I, II, and III below,
disregard or omit nominees submitted financial or voting arrangements that
pursuant to proposed Section 2.15 from which Items have been prepared by the
may present conflicts of interest or Exchange. The Commission is
the Proxy Materials in certain interfere with the nominee’s ability to
circumstances, including if the Board publishing this notice to solicit
comply, if elected, with his or her comments on the proposed rule change
determines that the nomination or fiduciary duties under applicable law.45
election of the nominee would result in from interested persons.
The Commission notes that the
ICE violating or failing to be in safeguards and limitations described I. Self-Regulatory Organization’s
compliance with its governing above should help to ensure ICE can Statement of the Terms of Substance of
documents or any applicable law, rule comply with its bylaws and any the Proposed Rule Change
or regulation to which it is subject.42 applicable laws, rules, regulations, The Exchange is filing a proposal to
The Commission notes that such
amend the MIAX Options Fee Schedule
limitations on proxy access seem 43 See also id. (permitting ICE to omit from its
(the ‘‘Fee Schedule’’).
designed to balance the ability of ICE Proxy Materials any nominee submitted pursuant to
asabaliauskas on DSK3SPTVN1PROD with NOTICES
proposed Section 2.15 if the Board determines that The text of the proposed rule change
shareholders to participate more fully in is available on the Exchange’s Web site
nomination or election of that nominee to the Board
the nomination and election process would cause ICE to violate or fail to be in at http://www.miaxoptions.com/filter/
against the potential cost and practical compliance with its Bylaws, its certificate of wotitle/rule_filing, at MIAX’s principal
difficulties of requiring inclusion of incorporation, or any applicable law, rule or
shareholder nominations in proxy regulation, including any rules or regulations of the
46 15 U.S.C. 78s(b)(2).
principal national securities exchange on which
materials. ICE’s common stock is traded). 47 17 CFR 200.30–3(a)(12).
44 See supra notes 12–19 and accompanying text. 1 15 U.S.C. 78s(b)(1).
42 See, e.g., Proposed Section 2.15(e)(i)(C). 45 See supra notes 20–21 and accompanying text. 2 17 CFR 240.19b–4.
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Document Created: 2016-05-12 01:07:49
Document Modified: 2016-05-12 01:07:49
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 81 FR 29600 |
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