81_FR_69285 81 FR 69092 - Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE MKT LLC; NYSE Arca, Inc.; Order Approving Proposed Rule Change, as Modified by Amendment No. 2 Thereto, Amending and Restating the Second Amended and Restated Certificate of Incorporation of the Exchanges' Ultimate Parent Company, Intercontinental Exchange, Inc.

81 FR 69092 - Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE MKT LLC; NYSE Arca, Inc.; Order Approving Proposed Rule Change, as Modified by Amendment No. 2 Thereto, Amending and Restating the Second Amended and Restated Certificate of Incorporation of the Exchanges' Ultimate Parent Company, Intercontinental Exchange, Inc.

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 193 (October 5, 2016)

Page Range69092-69093
FR Document2016-24016

Federal Register, Volume 81 Issue 193 (Wednesday, October 5, 2016)
[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)]
[Notices]
[Pages 69092-69093]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-24016]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78992; File Nos. SR-NYSE-2016-57; SR-NYSEMKT-2016-80; 
SR-NYSEArca-2016-119]


Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE 
MKT LLC; NYSE Arca, Inc.; Order Approving Proposed Rule Change, as 
Modified by Amendment No. 2 Thereto, Amending and Restating the Second 
Amended and Restated Certificate of Incorporation of the Exchanges' 
Ultimate Parent Company, Intercontinental Exchange, Inc.

September 29, 2016.

I. Introduction

    On August 17, 2016, each of New York Stock Exchange LLC (``NYSE''), 
NYSE MKT LLC (``NYSE MKT''), and NYSE Arca, Inc. (``NYSE Arca'' and, 
with NYSE and NYSE MKT, the ``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 Second 
Amended and Restated Certificate of Incorporation (``ICE Certificate'') 
of the Exchanges' ultimate parent company, Intercontinental Exchange, 
Inc. (``ICE''), to increase ICE's authorized share capital and to make 
other, non-substantive changes. The proposed rule changes were 
published for comment in the Federal Register on August 30, 2016.\3\ On 
August 25, 2016, the Exchanges each filed Amendment No. 1 to its 
respective proposed rule change.\4\ On August 29, 2016, the Exchanges 
each filed Amendment No. 2 to its respective proposed rule change.\5\ 
The Commission received no comments on the proposed rule changes, as 
amended. This order approves the proposed rule changes, as modified by 
Amendment No. 2.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release Nos. 78661 (August 24, 
2016), 81 FR 59699 (August 30, 2016) (``NYSE Notice''); 78663 
(August 24, 2016), 81 FR 59696 (August 30, 2016); and 78662 (August 
24, 2016), 81 FR 59674 (August 30, 2016).
    \4\ On August 26, 2016, the Exchanges withdrew Amendment No. 1.
    \5\ Amendment No. 2 made technical, non-substantive changes to 
the ICE Certificate to remove unnecessary underlining and to 
italicize a comma. Because Amendment No. 2 adds clarification and 
does not materially alter the substance of the proposed rule changes 
or raise unique or novel regulatory issues, Amendment No. 2 is not 
subject to notice and comment.
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II. Description of the Proposed Rule Change

    The Exchanges propose to revise the ICE Certificate \6\ to increase 
the total number of authorized shares of ICE common stock, par value 
$0.01 per share (``Common Stock''), and to make other, non-substantive 
changes. More specifically, the Exchanges propose to make the following 
amendments to the ICE Certificate:
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    \6\ ICE owns 100% of the equity interest of Intercontinental 
Exchange Holdings, Inc., which in turn owns 100% of the equity 
interest of NYSE Holdings LLC. NYSE Holdings LLC owns 100% of the 
equity interest of NYSE Group, Inc., which in turn directly owns 
100% of the equity interest of each Exchange. ICE is a publicly 
traded company listed on the NYSE.
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     In Article IV, Section A, the total number of shares of 
stock that ICE is authorized to issue would be changed from 600,000,000 
to 1,600,000,000 shares, and the portion of that total constituting 
Common Stock would be changed from 500,000,000 to 1,500,000,000 shares.
     In Article V, Section A.5, the reference to ``this Section 
A of ARTICLE VI'' would be corrected to refer to ``this Section A of 
ARTICLE V''.
     References to the ``Second Amended and Restated 
Certificate of Incorporation'' would be changed throughout to refer to 
the ``Third Amended and Restated Certificate of Incorporation,'' and 
related technical and conforming changes would be made to the recitals 
and signature page of the ICE Certificate.
    The Exchanges state that the proposed amendments to the ICE 
Certificate were approved by the board of directors of ICE (``ICE 
Board'') on August 1, 2016.\7\ The Exchanges further state that the 
amendments to the ICE Certificate would be effective when filed with 
the Department of State of Delaware, which would not occur until 
approval of the amendments by the stockholders of ICE is obtained at a 
Special Meeting of Stockholders on October 12, 2016.\8\
---------------------------------------------------------------------------

    \7\ See, e.g., NYSE Notice, supra note 3.
    \8\ See id.
---------------------------------------------------------------------------

    According to the Exchanges, the trading price of ICE's Common Stock 
has risen significantly since ICE's initial public offering in 2005, 
and the ICE Board believes that such price appreciation may impact the 
liquidity of ICE's Common Stock, making it more difficult to 
efficiently trade and potentially less attractive to certain 
investors.\9\ Accordingly, the ICE Board approved pursuing a 5-for-1 
stock split by way of a stock dividend, pursuant to which the holders 
of record of shares of Common Stock would receive, by way of a 
dividend, four shares of Common Stock for each share of Common Stock 
held by such holder (``Stock Dividend''). The Exchanges state that the 
ICE Board's approval of the Stock Dividend was contingent upon 
Commission and ICE stockholder approval of the proposed amendments to 
the ICE Certificate.
---------------------------------------------------------------------------

    \9\ See id.
---------------------------------------------------------------------------

    Further, the Exchanges state that the number of shares of Common 
Stock proposed to be issued in the Stock Dividend exceeds ICE's 
authorized but unissued shares of Common Stock. The proposed rule 
changes would increase ICE's authorized shares of Common Stock and 
shares of capital stock to allow ICE to effectuate the Stock Dividend.
    According to the Exchanges, the proposed changes to the ICE 
Certificate would not alter the limitations on voting and ownership set 
forth in Section V of the ICE Certificate.\10\ Such limitations were 
introduced at the time of ICE's acquisition of the Exchanges, to 
``minimize the potential that a person could improperly interfere with 
or restrict the ability of the Commission, the Exchange, or its 
subsidiaries to effectively carry out their regulatory oversight 
responsibilities under the Act.'' \11\
---------------------------------------------------------------------------

    \10\ See id.
    \11\ See Securities Exchange Act Release No. 70210 (August 15, 
2013), 78 FR 51758 (August 21, 2013) (SR-NYSE-2013-42; SR-NYSEMKT-
2013-50; and SR-NYSEArca-2013-62), at 51760.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
changes, as modified by Amendment No. 2, are consistent with the Act 
and the rules and regulations thereunder applicable to a national 
securities exchange.\12\
---------------------------------------------------------------------------

    \12\ In approving the proposed rule changes, the Commission has 
considered their impact on efficiency, competition, and capital 
formation. See 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    The Commission finds that the proposed rule changes by the 
Exchanges to modify the ICE Certificate are consistent with the 
requirements of Section 6 of the Act and the rules and regulations 
thereunder applicable to a national securities exchange.\13\ In

[[Page 69093]]

particular, the Commission finds that the proposed rule changes are 
consistent with Section 6(b)(1) of the Act, which, among other things, 
requires a national securities exchange to be so organized and have the 
capacity to carry out the purposes of the Act and to enforce compliance 
by its members with the provisions of the Act, the rule and regulations 
thereunder, and the rules of the exchange.\14\ The proposed revisions 
to the ICE Certificate are intended to increase ICE's authorized shares 
of Common Stock and shares of capital stock and thus would allow ICE to 
effectuate the Stock Dividend. The Exchanges represent that the 
proposed rule changes would not alter the limitations on voting and 
ownership set forth in Section V of the ICE Certificate, which are 
designed to ``minimize the potential that a person could improperly 
interfere with or restrict the ability of the Commission, the Exchange, 
or its subsidiaries to effectively carry out their regulatory oversight 
responsibilities under the Act.'' \15\
---------------------------------------------------------------------------

    \13\ Certain provisions of the ICE Certificate are considered 
rules of NYSE, NYSE MKT, and NYSE Arca if they are stated policies, 
practices, or interpretations, as defined in Rule 19b-4 under the 
Act, of NYSE, NYSE MKT, and NYSE Arca, and must be filed with the 
Commission pursuant to Section 19(b)(4) of the Act and Rule 19b-4 
thereunder. See 15 U.S.C. 78c(a)(27); 15 U.S.C. 78s(b); and 17 CFR 
240.19b-4.
    \14\ 15 U.S.C. 78f(b)(1).
    \15\ See supra note 11.
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    In addition, the Commission finds that the proposed rule changes 
are consistent with Section 6(b)(5) of the Act,\16\ which requires, 
among other things, 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. As noted above, the proposed 
rule changes would revise the ICE Certificate to increase ICE's 
authorized share capital and thus would facilitate ICE's proposed Stock 
Dividend. In addition, the proposed rule changes would correct an 
erroneous reference, which may reduce potential confusion and enhance 
the clarity of the ICE Certificate.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\17\ that the proposed rule changes (SR-NYSE-2016-57; SR-NYSEMKT-
2016-80; SR-NYSEArca-2016-119), as modified by Amendment No. 2, be, and 
hereby are, approved.
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    \17\ 15 U.S.C. 78s(b)(2).
    \18\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-24016 Filed 10-4-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                    69092                      Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices

                                                      For the Commission, by the Division of                received no comments on the proposed                  difficult to efficiently trade and
                                                    Trading and Markets, pursuant to delegated              rule changes, as amended. This order                  potentially less attractive to certain
                                                    authority.17                                            approves the proposed rule changes, as                investors.9 Accordingly, the ICE Board
                                                    Robert W. Errett,                                       modified by Amendment No. 2.                          approved pursuing a 5-for-1 stock split
                                                    Deputy Secretary.                                                                                             by way of a stock dividend, pursuant to
                                                                                                            II. Description of the Proposed Rule
                                                    [FR Doc. 2016–23997 Filed 10–4–16; 8:45 am]                                                                   which the holders of record of shares of
                                                                                                            Change
                                                    BILLING CODE 8011–01–P                                                                                        Common Stock would receive, by way
                                                                                                               The Exchanges propose to revise the                of a dividend, four shares of Common
                                                                                                            ICE Certificate 6 to increase the total               Stock for each share of Common Stock
                                                    SECURITIES AND EXCHANGE                                 number of authorized shares of ICE                    held by such holder (‘‘Stock Dividend’’).
                                                    COMMISSION                                              common stock, par value $0.01 per                     The Exchanges state that the ICE Board’s
                                                                                                            share (‘‘Common Stock’’), and to make                 approval of the Stock Dividend was
                                                    [Release No. 34–78992; File Nos. SR–NYSE–
                                                    2016–57; SR–NYSEMKT–2016–80; SR–
                                                                                                            other, non-substantive changes. More                  contingent upon Commission and ICE
                                                    NYSEArca–2016–119]                                      specifically, the Exchanges propose to                stockholder approval of the proposed
                                                                                                            make the following amendments to the                  amendments to the ICE Certificate.
                                                    Self-Regulatory Organizations; New                      ICE Certificate:                                         Further, the Exchanges state that the
                                                    York Stock Exchange LLC; NYSE MKT                          • In Article IV, Section A, the total              number of shares of Common Stock
                                                    LLC; NYSE Arca, Inc.; Order Approving                   number of shares of stock that ICE is                 proposed to be issued in the Stock
                                                    Proposed Rule Change, as Modified by                    authorized to issue would be changed                  Dividend exceeds ICE’s authorized but
                                                    Amendment No. 2 Thereto, Amending                       from 600,000,000 to 1,600,000,000                     unissued shares of Common Stock. The
                                                    and Restating the Second Amended                        shares, and the portion of that total                 proposed rule changes would increase
                                                    and Restated Certificate of                             constituting Common Stock would be                    ICE’s authorized shares of Common
                                                    Incorporation of the Exchanges’                         changed from 500,000,000 to                           Stock and shares of capital stock to
                                                    Ultimate Parent Company,                                1,500,000,000 shares.                                 allow ICE to effectuate the Stock
                                                    Intercontinental Exchange, Inc.                            • In Article V, Section A.5, the                   Dividend.
                                                                                                            reference to ‘‘this Section A of ARTICLE                 According to the Exchanges, the
                                                    September 29, 2016.                                     VI’’ would be corrected to refer to ‘‘this            proposed changes to the ICE Certificate
                                                    I. Introduction                                         Section A of ARTICLE V’’.                             would not alter the limitations on voting
                                                                                                               • References to the ‘‘Second                       and ownership set forth in Section V of
                                                       On August 17, 2016, each of New                      Amended and Restated Certificate of                   the ICE Certificate.10 Such limitations
                                                    York Stock Exchange LLC (‘‘NYSE’’),                     Incorporation’’ would be changed                      were introduced at the time of ICE’s
                                                    NYSE MKT LLC (‘‘NYSE MKT’’), and                        throughout to refer to the ‘‘Third                    acquisition of the Exchanges, to
                                                    NYSE Arca, Inc. (‘‘NYSE Arca’’ and,                     Amended and Restated Certificate of                   ‘‘minimize the potential that a person
                                                    with NYSE and NYSE MKT, the                             Incorporation,’’ and related technical                could improperly interfere with or
                                                    ‘‘Exchanges’’) filed with the Securities                and conforming changes would be made                  restrict the ability of the Commission,
                                                    and Exchange Commission                                 to the recitals and signature page of the             the Exchange, or its subsidiaries to
                                                    (‘‘Commission’’), pursuant to Section                   ICE Certificate.                                      effectively carry out their regulatory
                                                    19(b)(1) of the Securities Exchange Act                    The Exchanges state that the proposed              oversight responsibilities under the
                                                    of 1934 (‘‘Act’’) 1 and Rule 19b–4                      amendments to the ICE Certificate were                Act.’’ 11
                                                    thereunder,2 a proposed rule change to                  approved by the board of directors of
                                                    amend and restate the Second Amended                    ICE (‘‘ICE Board’’) on August 1, 2016.7               III. Discussion and Commission
                                                    and Restated Certificate of Incorporation               The Exchanges further state that the                  Findings
                                                    (‘‘ICE Certificate’’) of the Exchanges’                 amendments to the ICE Certificate                        After careful review, the Commission
                                                    ultimate parent company,                                would be effective when filed with the                finds that the proposed rule changes, as
                                                    Intercontinental Exchange, Inc. (‘‘ICE’’),              Department of State of Delaware, which                modified by Amendment No. 2, are
                                                    to increase ICE’s authorized share                      would not occur until approval of the                 consistent with the Act and the rules
                                                    capital and to make other, non-                         amendments by the stockholders of ICE                 and regulations thereunder applicable to
                                                    substantive changes. The proposed rule                  is obtained at a Special Meeting of                   a national securities exchange.12
                                                    changes were published for comment in                   Stockholders on October 12, 2016.8                       The Commission finds that the
                                                    the Federal Register on August 30,                         According to the Exchanges, the                    proposed rule changes by the Exchanges
                                                    2016.3 On August 25, 2016, the                          trading price of ICE’s Common Stock                   to modify the ICE Certificate are
                                                    Exchanges each filed Amendment No. 1                    has risen significantly since ICE’s initial           consistent with the requirements of
                                                    to its respective proposed rule change.4                public offering in 2005, and the ICE                  Section 6 of the Act and the rules and
                                                    On August 29, 2016, the Exchanges each                  Board believes that such price                        regulations thereunder applicable to a
                                                    filed Amendment No. 2 to its respective                 appreciation may impact the liquidity of              national securities exchange.13 In
                                                    proposed rule change.5 The Commission                   ICE’s Common Stock, making it more
                                                                                                                                                                    9 See  id.
                                                      17 17  CFR 200.30–3(a)(12).                           does not materially alter the substance of the          10 See  id.
                                                       1 15 U.S.C. 78s(b)(1).
                                                                                                            proposed rule changes or raise unique or novel           11 See Securities Exchange Act Release No. 70210
                                                       2 17 CFR 240.19b–4.                                  regulatory issues, Amendment No. 2 is not subject     (August 15, 2013), 78 FR 51758 (August 21, 2013)
                                                       3 See Securities Exchange Act Release Nos. 78661     to notice and comment.                                (SR–NYSE–2013–42; SR–NYSEMKT–2013–50; and
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                    (August 24, 2016), 81 FR 59699 (August 30, 2016)           6 ICE owns 100% of the equity interest of          SR–NYSEArca–2013–62), at 51760.
                                                    (‘‘NYSE Notice’’); 78663 (August 24, 2016), 81 FR       Intercontinental Exchange Holdings, Inc., which in       12 In approving the proposed rule changes, the
                                                    59696 (August 30, 2016); and 78662 (August 24,          turn owns 100% of the equity interest of NYSE         Commission has considered their impact on
                                                    2016), 81 FR 59674 (August 30, 2016).                   Holdings LLC. NYSE Holdings LLC owns 100% of          efficiency, competition, and capital formation. See
                                                       4 On August 26, 2016, the Exchanges withdrew         the equity interest of NYSE Group, Inc., which in     15 U.S.C. 78c(f).
                                                    Amendment No. 1.                                        turn directly owns 100% of the equity interest of        13 Certain provisions of the ICE Certificate are
                                                       5 Amendment No. 2 made technical, non-               each Exchange. ICE is a publicly traded company       considered rules of NYSE, NYSE MKT, and NYSE
                                                    substantive changes to the ICE Certificate to remove    listed on the NYSE.                                   Arca if they are stated policies, practices, or
                                                                                                               7 See, e.g., NYSE Notice, supra note 3.
                                                    unnecessary underlining and to italicize a comma.                                                             interpretations, as defined in Rule 19b–4 under the
                                                    Because Amendment No. 2 adds clarification and             8 See id.                                          Act, of NYSE, NYSE MKT, and NYSE Arca, and



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                                                                               Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Notices                                                 69093

                                                    particular, the Commission finds that                   Amendment No. 2, be, and hereby are,                  the purpose of and basis for the
                                                    the proposed rule changes are consistent                approved.                                             proposed rule change and discussed any
                                                    with Section 6(b)(1) of the Act, which,                   For the Commission, by the Division of              comments it received on the proposed
                                                    among other things, requires a national                 Trading and Markets, pursuant to delegated            rule change. The text of these statements
                                                    securities exchange to be so organized                  authority.18                                          may be examined at the places specified
                                                    and have the capacity to carry out the                  Robert W. Errett,                                     in Item IV below. SCCP has prepared
                                                    purposes of the Act and to enforce                      Deputy Secretary.                                     summaries, set forth in sections A, B,
                                                    compliance by its members with the                      [FR Doc. 2016–24016 Filed 10–4–16; 8:45 am]
                                                                                                                                                                  and C below, of the most significant
                                                    provisions of the Act, the rule and                                                                           aspects of such statements.
                                                                                                            BILLING CODE 8011–01–P
                                                    regulations thereunder, and the rules of
                                                                                                                                                                  A. Self-Regulatory Organization’s
                                                    the exchange.14 The proposed revisions
                                                                                                                                                                  Statement of the Purpose of, and
                                                    to the ICE Certificate are intended to                  SECURITIES AND EXCHANGE                               Statutory Basis for, the Proposed Rule
                                                    increase ICE’s authorized shares of                     COMMISSION                                            Change
                                                    Common Stock and shares of capital
                                                    stock and thus would allow ICE to                       [Release No. 34–78984; File No. SR–SCCP–              1. Purpose
                                                    effectuate the Stock Dividend. The                      2016–01]
                                                                                                                                                                  Background
                                                    Exchanges represent that the proposed                   Self-Regulatory Organizations; Stock
                                                    rule changes would not alter the                                                                                At Nasdaq’s 2016 annual meeting
                                                                                                            Clearing Corporation of Philadelphia;                 held on May 5, 2016, Nasdaq’s
                                                    limitations on voting and ownership set                 Notice of Filing of Proposed Rule
                                                    forth in Section V of the ICE Certificate,                                                                    stockholders considered a stockholder
                                                                                                            Change To Amend the By-Laws of                        proposal submitted under Rule 14a–8
                                                    which are designed to ‘‘minimize the                    Nasdaq, Inc. To Implement Proxy
                                                    potential that a person could improperly                                                                      under the Act.3 The proposal, which
                                                                                                            Access                                                passed with 73.52% of the votes cast,
                                                    interfere with or restrict the ability of
                                                    the Commission, the Exchange, or its                    September 29, 2016.                                   requested that Nasdaq’s Board of
                                                    subsidiaries to effectively carry out their                Pursuant to Section 19(b)(1) of the                Directors (the ‘‘Board’’) take steps to
                                                    regulatory oversight responsibilities                   Securities Exchange Act of 1934                       implement a ‘‘proxy access’’ by-law.
                                                    under the Act.’’ 15                                     (‘‘Act’’),1 and Rule 19b–4 thereunder,2               Proxy access by-laws allow a
                                                       In addition, the Commission finds                    notice is hereby given that on                        stockholder, or group of stockholders,
                                                    that the proposed rule changes are                      September 15, 2016, Stock Clearing                    who comply with certain requirements,
                                                    consistent with Section 6(b)(5) of the                  Corporation of Philadelphia (‘‘SCCP’’)                to nominate candidates for service on a
                                                    Act,16 which requires, among other                      filed with the Securities and Exchange                board and have those candidates
                                                    things, that the rules of an exchange be                Commission (‘‘Commission’’) the                       included in a company’s proxy
                                                    designed to prevent fraudulent and                      proposed rule change as described in                  materials. Such provisions allow
                                                    manipulative acts and practices, to                     Items I, II, and III below, which Items               stockholders to nominate candidates
                                                    promote just and equitable principles of                have been prepared by the clearing                    without undertaking the expense of a
                                                    trade, to foster cooperation and                        agency. The Commission is publishing                  proxy solicitation.
                                                    coordination with persons engaged in                                                                            Following the 2016 annual meeting,
                                                                                                            this notice to solicit comments on the
                                                    regulating, clearing, settling, processing                                                                    the Nominating & Governance
                                                                                                            proposed rule change from interested
                                                    information with respect to, and                                                                              Committee (the ‘‘Committee’’) of the
                                                                                                            persons.
                                                    facilitating transactions in securities, to                                                                   Board and the Board reviewed the
                                                    remove impediments to and perfect the                   I. Self-Regulatory Organization’s                     voting results on the stockholder
                                                    mechanism of a free and open market                     Statement of the Terms of Substance of                proposal and discussed proxy access
                                                    and a national market system, and, in                   the Proposed Rule Change                              generally. The Committee ultimately
                                                    general, to protect investors and the                      SCCP is filing this proposed rule                  recommended to the Board, and the
                                                    public interest. As noted above, the                    change with respect to amendments of                  Board approved, certain changes to
                                                    proposed rule changes would revise the                  the By-Laws (the ‘‘By-Laws’’) of its                  Nasdaq’s By-Laws to implement proxy
                                                    ICE Certificate to increase ICE’s                       parent corporation, Nasdaq, Inc.                      access. Nasdaq now proposes to make
                                                    authorized share capital and thus would                 (‘‘Nasdaq’’ or the ‘‘Company’’), to                   these changes by adopting new Section
                                                    facilitate ICE’s proposed Stock                         implement proxy access. The proposed                  3.6 of the By-Laws and making certain
                                                    Dividend. In addition, the proposed rule                amendments will be implemented on a                   conforming changes to current Sections
                                                    changes would correct an erroneous                      date designated by the Company                        3.1, 3.3 and 3.5 of the By-Laws, all of
                                                    reference, which may reduce potential                   following approval by the Commission.                 which are described further below.
                                                    confusion and enhance the clarity of the                The text of the proposed rule change is                 In developing its proposal, Nasdaq
                                                    ICE Certificate.                                        available on SCCP’s Web site at http://               has generally tried to balance the
                                                                                                            nasdaqphlx.cchwallstreet.com/                         relative weight of arguments for and
                                                    IV. Conclusion                                                                                                against proxy access provisions. On the
                                                                                                            nasdaqomxphlx/sccp/, at the principal
                                                      It is therefore ordered, pursuant to                  office of SCCP, and at the Commission’s               one hand, Nasdaq recognizes the
                                                    Section 19(b)(2) of the Act,17 that the                 Public Reference Room.                                significance of this issue to some
                                                    proposed rule changes (SR–NYSE–                                                                               investors, who see proxy access as an
                                                    2016–57; SR–NYSEMKT–2016–80; SR–                        II. Self-Regulatory Organization’s                    important accountability mechanism
                                                    NYSEArca–2016–119), as modified by                      Statement of the Purpose of, and                      that allows them to participate in board
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                                                                            Statutory Basis for, the Proposed Rule                elections through the nomination of
                                                    must be filed with the Commission pursuant to           Change                                                stockholder candidates that are
                                                    Section 19(b)(4) of the Act and Rule 19b–4
                                                    thereunder. See 15 U.S.C. 78c(a)(27); 15 U.S.C.            In its filing with the Commission,
                                                                                                                                                                    3 See 17 CFR 240.14a–8, which establishes
                                                    78s(b); and 17 CFR 240.19b–4.                           SCCP included statements concerning
                                                      14 15 U.S.C. 78f(b)(1).
                                                                                                                                                                  procedures pursuant to which stockholders of a
                                                                                                                                                                  public company may have their proposals placed
                                                      15 See supra note 11.                                   18 17 CFR 200.30–3(a)(12).                          alongside management’s proposals in the
                                                      16 15 U.S.C. 78f(b)(5).                                 1 15 U.S.C. 78s(b)(1).                              company’s proxy materials for presentation to a
                                                      17 15 U.S.C. 78s(b)(2).                                 2 17 CFR 240.19b–4.                                 vote at a meeting of stockholders.



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Document Created: 2016-10-05 03:29:14
Document Modified: 2016-10-05 03:29:14
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 69092 

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