81 FR 96124 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the Exchange's Parent the NYSE Group, Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE Holdings LLC, Intercontinental Exchange Holdings, Inc., and Intercontinental Exchange, Inc.
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 81, Issue 250 (December 29, 2016)
Federal Register Volume 81, Issue 250 (December 29, 2016)
| Page Range | 96124-96128 | |
| FR Document | 2016-31483 |
[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)] [Notices] [Pages 96124-96128] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31483] [[Page 96124]] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-79671; File No. SR-NYSE-2016-90] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change in Connection With the Proposed Acquisition of National Stock Exchange, Inc. by the Exchange's Parent the NYSE Group, Inc. To Amend Certain Organizational Documents of NYSE Group, NYSE Holdings LLC, Intercontinental Exchange Holdings, Inc., and Intercontinental Exchange, Inc. December 22, 2016. Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given that, on December 16, 2016, New York Stock Exchange LLC (``NYSE'' or the ``Exchange'') filed with the Securities and Exchange Commission (the ``Commission'') the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the self- regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 15 U.S.C. 78a. \3\ 17 CFR 240.19b-4. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes in connection with the proposed acquisition of National Stock Exchange, Inc. (``NSX'') by the Exchange's parent the NYSE Group, Inc. (``NYSE Group''), to amend certain organizational documents of NYSE Group, NYSE Holdings LLC (``NYSE Holdings''), Intercontinental Exchange Holdings, Inc. (``ICE Holdings''), and Intercontinental Exchange, Inc. (``ICE''). The proposed rule change is available on the Exchange's Web site at www.nyse.com, at the principal office of the Exchange, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose Background On December 14, 2016, ICE entered into an agreement with the NSX pursuant to which its wholly-owned subsidiary NYSE Group would acquire all of the outstanding capital stock of the NSX (the ``Acquisition''). As a result of the Acquisition, the NSX would be renamed NYSE National, Inc. (``NYSE National'') and would be operated as a wholly-owned subsidiary of NYSE Group. NYSE Group is a wholly-owned subsidiary of NYSE Holdings, which is in turn 100% owned by ICE Holdings. ICE, a public company listed on the NYSE, owns 100% of ICE Holdings. Following the Acquisition, NYSE National would continue to be registered as a national securities exchange and as a separate self- regulatory organization (``SRO''). As such, NYSE National would continue to have separate rules, membership rosters, and listings that would be distinct from the rules, membership rosters, and listings of the three other registered national securities exchanges and SROs owned by NYSE Group, namely, the NYSE, NYSE MKT LLC (``NYSE MKT''), and NYSE Arca, Inc. (``NYSE Arca'') (together, the ``NYSE Exchanges'').\4\ --------------------------------------------------------------------------- \4\ The NYSE Exchanges are referred to as the U.S. Regulated Subsidiaries in the corporate documents proposed to be amended in this rule filing. --------------------------------------------------------------------------- In connection with the Acquisition and as discussed more fully below, the following organizational documents of NYSE Group and its intermediary and ultimate parent entities would be amended:ICE bylaws and director independence policy, ICE Holdings bylaws and certificate of incorporation, NYSE Holdings operating agreement, and NYSE Group bylaws and certificate of incorporation. These proposed changes would consist of technical and conforming amendments to reflect the proposed new ownership of NYSE National by the NYSE Group, and, indirectly, ICE.\5\ --------------------------------------------------------------------------- \5\ The proposed revisions are also discussed in the NYSE MKT and NYSE Arca companion rule filings related to the Acquisition. See SR-NYSEMKT-2016-122 & SR-NYSEArca-2016-167. --------------------------------------------------------------------------- The proposed rule changes would be effected following approval of this rule filing no later than February 28, 2017, on a date determined by its Board. Proposed Rule Change The Exchange proposes that, in connection with the Acquisition, the Commission approve the organizational documents of ICE and its wholly- owned subsidiaries ICE Holdings and NYSE Group and the Independence Policy of the Board of Directors of Intercontinental Exchange, Inc. (``ICE Independence Policy''), all of which are to be amended concurrently with the Acquisition to reflect ownership of NYSE National. The current organizational documents of ICE and its wholly-owned subsidiaries provide certain protections to the NYSE Exchanges that are designed to protect and facilitate their self-regulatory functions, including certain restrictions on the ability to vote and own shares of ICE.\6\ In general, the organizational documents of ICE and its wholly- owned subsidiaries are being amended to provide similar protections to the NYSE National as are currently provided to the NYSE Exchanges under those documents. --------------------------------------------------------------------------- \6\ See Securities Exchange Release No. 70210 (August 15, 2013), 78 FR 51758 (August 21, 2013) (approving rule changes related to NYSE Euronext becoming a wholly owned subsidiary of ICE (then called IntercontinentalExchange Group, Inc.)). --------------------------------------------------------------------------- In addition, obsolete references to NYSE Market (DE), Inc. (formerly NYSE Market, Inc.) (``NYSE Market (DE)''), and NYSE Regulation, Inc. (``NYSE Regulation'') found in various documents are proposed to be deleted.\7\ --------------------------------------------------------------------------- \7\ NYSE Market (DE) and NYSE Regulation were previously parties to a Delegation Agreement whereby the NYSE delegated certain regulatory functions to NYSE Regulation and certain market functions to NYSE Market (DE). The Delegation Agreement was terminated when the NYSE re-integrated its regulatory and market functions. As a result, the two entities ceased being regulated subsidiaries. See Securities Exchange Act Release No. 75991 (September 28, 2015), 80 FR 59837 (October 2, 2015). NYSE Regulation has since been merged out of existence. --------------------------------------------------------------------------- Proposed Seventh Amended and Restated Bylaws of Intercontinental Exchange, Inc. (``ICE Bylaws'') The ICE Bylaws would be amended to reflect the Acquisition and incorporate NYSE National in the ICE Bylaws' existing voting and ownership restrictions, provisions relating to the qualifications of directors and officers and their submission to jurisdiction, compliance with the federal securities laws, access to books and records, and other matters related to its control of the U.S. Regulated Subsidiaries. [[Page 96125]] Specifically, the ICE Bylaws would be amended as follows: The definition of ``U.S. Regulated Subsidiaries'' in Article III, Section 3.15, which currently includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, NYSE Arca, NYSE Arca Equities, Inc. (``NYSE Arca Equities''), and NYSE MKT, would be amended to include NYSE National. The obsolete references to NYSE Market (DE) and NYSE Regulation would also be deleted. Article VIII (Confidential Information), Section 8.1, would be amended to extend to NYSE National the same protection regarding confidential information provided to the NYSE Exchanges and NYSE Arca Equities, and to remove the obsolete references to NYSE Market (DE) and NYSE Regulation. Article XI, Section 11.3, provides that, for so long as ICE controls any of the U.S. Regulated Subsidiaries, any amendment to or repeal of the ICE Bylaws must either be (i) filed with or filed with and approved by the Commission under Section 19 of the Exchange Act and the rules promulgated thereunder, or (ii) submitted to the boards of directors of the U.S. Regulated Subsidiaries or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by ICE. Section 11.3 would be amended to include the NYSE National, and to delete the obsolete references to NYSE Market (DE) and NYSE Regulation. The ICE Bylaws would be further amended to add a new Article XII (Voting and Ownership Limitations). New Section 12.1.a of Article XII would provide that, subject to its fiduciary obligations under applicable law, for so long as ICE directly or indirectly controls NYSE National (or its successor), the board of directors of ICE shall not adopt any resolution pursuant to clause (b) of Section A.2 of Article V of the certificate of incorporation of ICE (which relates to ICE board of directors approval of ownership of ICE capital stock by a person together with its related persons in excess of 20%), unless the board of directors of ICE shall have determined that: In the case of a resolution to approve the exercise of voting rights in excess of 20% of the then outstanding votes entitled to be cast on such matter, neither such person nor any of its related persons is an ETP Holder of NYSE National; in the case of a resolution to approve the entering into of an agreement, plan or other arrangement under circumstances that would result in shares of stock of ICE that would be subject to such agreement, plan or other arrangement not being voted on any matter, or the withholding of any proxy relating thereto, where the effect of such agreement, plan or other arrangement would be to enable any person, but for Article V of the Certificate of Incorporation of ICE, either alone or together with its related persons, to vote, possess the right to vote or cause the voting of shares of stock of ICE that would exceed 20% of the then outstanding votes entitled to be cast on such matter neither such person nor any of its related persons is, with respect to NYSE National, an ETP Holder. New Section 12.1.b would provide that, subject to its fiduciary obligations under applicable law, for so long as ICE directly or indirectly controls NYSE National (or its successor), the Board of Directors of ICE shall not adopt any resolution pursuant to clause (b) of Section B(2) of Article V of ICE's Certificate of Incorporation, unless the Board of Directors shall have determined that neither such person nor any of its related persons is an ETP Holder. New Section 12.2 would provide that, for so long as ICE shall control, directly or indirectly, NYSE National (or its successor), the ICE board of directors shall not adopt any resolution to repeal or amend any provision of the certificate of incorporation of ICE unless such amendment or repeal shall either be (a) filed with or filed with and approved by the SEC under Section 19 of the Exchange Act and the rules promulgated thereunder or (b) submitted to the board of directors of NYSE National (or the board of directors of its successor), and if such board of directors determines that such amendment or repeal must be filed with or filed with and approved by the Commission under Section 19 of the Exchange Act and the rules promulgated thereunder before such amendment or repeal may be effectuated, then such amendment or repeal shall not be effectuated until filed with or filed with and approved by the Commission, as the case may be. Proposed Eighth Amended and Restated Certificate of Incorporation of Intercontinental Exchange Holdings, Inc. (``ICE Holdings Certificate of Incorporation'') The ICE Holdings Certificate of Incorporation is being amended as follows: On the first page, add ``Eighth'' and delete ``Seventh'' before ``Amended and Restated Certificate of Incorporation'' in the heading and update items (2)-(5) accordingly to reflect that this would be the eighth amendment and restatement including replacing an incorrect reference to ``Sixth'' before ``Amended'' in item (3). The date would also be updated in the preamble on the first page. To distinguish between the ETP Holders of NYSE Arca Equities and those of NYSE National, subsection A.3.c.ii of Article V (Limitations on Voting and Ownership) would be amended to define an ETP Holder of NYSE Arca Equities as an ``NYSE Arca Equities ETP Holder.'' Obsolete references to NYSE Market (DE) and NYSE Regulation, would also be deleted.\8\ --------------------------------------------------------------------------- \8\ See note 7, supra. --------------------------------------------------------------------------- Subsection A.3.c of Article V would be amended to add a new subsection (v), similar to those in place for the other NYSE Exchanges, which would provide that, for so long as the ICE Holdings directly or indirectly controls NYSE National (or its successor), no person nor any of its related persons (as those terms are defined therein) is an ETP Holder (as proposed to be defined in the bylaws of NYSE National, discussed above) of NYSE National. Subsection A.3.d of Article V would be amended to add ``NYSE Arca'' before ``ETP Holder'' in one place to distinguish between the NYSE Arca Equities ETP Holders of and those of NYSE National. Subsection (A)(3)(d) would be further amended to add a new subsection (v) similar to those in place for the other NYSE Exchanges. The new subsection would incorporate NYSE National into the existing restriction, such that the ICE Holdings Board of Directors would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter, where neither such person nor any of its related persons is, with respect to NYSE National, an NYSE National ETP Holder. Subsection B.3 of Article V would be amended to add a new subsection (g) similar to those in place for the other NYSE Exchanges, incorporating NYSE National into the restriction on the ICE Holdings board of directors adopting any resolution pursuant to clause (b) of Section B.2 of Article V of the ICE Holdings Certificate of Incorporation (which relates to ICE board of directors approval of ownership of ICE capital stock by a person together with its related persons in excess of 20%) unless the NYSE Holdings board of directors determines that, for so long as ICE Holdings controls NYSE National, neither such person nor any of its [[Page 96126]] related persons is an NYSE National ETP Holder. Proposed Fifth Amended and Restated Bylaws of Intercontinental Exchange Holdings, Inc. (``ICE Holdings Bylaws'') The ICE Holdings Bylaws are being amended as follows: The cover page and heading on the first page would be amended to add ``Fifth'' and delete ``Fourth'' before ``Amended and Restated Bylaws'' to reflect that this would be the fifth amendment and restatement. The effective date on the cover page would also be updated. Similar to the ICE Bylaws discussed above, the ICE Holdings Bylaws would be amended to include ``NYSE National, Inc.'' in: [cir] The definition of ``U.S. Regulated Subsidiaries'' in Article III, Section 3.15, which currently includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, NYSE Arca, NYSE Arca Equities, and NYSE MKT LLC, and to provide that the term ``U.S. Regulated Subsidiaries'' includes those entities listed or their successors, but only so long as they continue to be controlled, directly or indirectly, by ICE Holdings. Obsolete references to NYSE Market (DE) and NYSE Regulation in that section would also be deleted; \9\ --------------------------------------------------------------------------- \9\ See note 7, supra. --------------------------------------------------------------------------- [cir] Article VIII (Confidential Information), Section 8.1, which would be amended to extend the same protection to confidential information relating to the self-regulatory function of NYSE National or its successor; \10\ and --------------------------------------------------------------------------- \10\ Article VIII, Section 8.1 would also be amended to delete obsolete references to NYSE Market (DE) and NYSE Regulation. --------------------------------------------------------------------------- [cir] Article XI (Amendment to the Bylaws), Section 11.3, which provides that, for so long as ICE controls any of the U.S. Regulated Subsidiaries, any amendment to or repeal of the ICE Bylaws must either be (i) filed with or filed with and approved by the Commission under section 19 of the Exchange Act and the rules promulgated thereunder, or (ii) submitted to the boards of directors of the U.S. Regulated Subsidiaries or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by ICE Holdings. Obsolete references to NYSE Market (DE) and NYSE Regulation would also be deleted from Article VXI, Section 11.3.\11\ --------------------------------------------------------------------------- \11\ See note 7, supra. Conforming changes to delete and replace connectors would also be made throughout. --------------------------------------------------------------------------- Proposed Independence Policy of the Board of Directors of Intercontinental Exchange, Inc. (``ICE Director Independence Policy'') The ICE Director Independence Policy would be amended to add NYSE National to the section describing ``Independence Qualifications.'' In particular, NYSE National would be added to categories (1)(b) and (c) that refer to ``members,'' as defined in section 3(a)(3)(A)(i), 3(a)(3)(A)(ii), 3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the Exchange Act.\12\ The clause ``and `Person Associated with an ETP Holder' (as defined in Rule 1.5 of NYSE National, Inc.)'' would also be added to category (1)(b) in reference to ``allied persons.'' NYSE National would also be added to subsections (4) and (5) of the ``Independence Qualifications'' section.\13\ Obsolete references to NYSE Market (DE) and NYSE Regulation would also be deleted.\14\ --------------------------------------------------------------------------- \12\ See 15 U.S.C. 78c(a)(3)(a). \13\ Conforming changes would also be made to delete and replace connectors. The link in footnote 2 to the NYSE Listed Company Manual and commentary would also be updated. \14\ See note 7, supra. --------------------------------------------------------------------------- Proposed Eighth Amended and Restated Limited Liability Company Agreement of NYSE Holdings LLC (``NYSE Holdings LLC Operating Agreement'') The NYSE Holdings LLC Operating Agreement would be amended as follows: The heading and preamble would be amended to add ``Eighth'' and delete ``Seventh'' before ``Amended and Restated Limited Liability Agreement'' to reflect that this would be the eighth amendment and restatement. The effective date would also be updated. After ``This Agreement amends and restates in its entirety that'' in the second full sentence would be added the clause ``certain Seventh Amended and Restated Limited Liability Company Agreement, dated as of May 22, 2015, which amended and restated in its entirety that.'' The current penultimate whereas clause would be amended by adding ``in May 2015'' before ``the Company'' and ``now desires to amend and restate'' immediately following would be replaced with ``amended and restated.'' ``Had'' and ``are'' would be changed to the past tense ``had'' [sic] and ``were'' in the final sentence. The following new whereas clause would be added immediately above the current last whereas clause: ``WHEREAS, the Company now desires to amend and restate the Seventh Amended and Restated Agreement to reflect the acquisition of NYSE National, Inc. by the Company's wholly-owned subsidiary NYSE Group, Inc.;''. The definition of ETP Holder in Article I (Interpretation), Section 1.1 would be deleted and new definitions of an NYSE Arca ETP Holder and NYSE National ETP Holder would be added. The obsolete definition of NYSE Market (DE) would be deleted.\15\ --------------------------------------------------------------------------- \15\ See note 7, supra. --------------------------------------------------------------------------- Article IX (Voting and Ownership Limitations), Section 9.1(a)(3)(C) would be amended to add ``NYSE Arca'' before ``ETP Holder'' and the defined term ``NYSE Arca ETP Holder'' to distinguish between the ETP Holders of NYSE Arca Equities and those of NYSE National. An obsolete reference to NYSE Market (DE) would also be deleted from Section 9.1(a)(3)(C).\16\ --------------------------------------------------------------------------- \16\ See note 7, supra. Conforming changes to delete and replace connectors would also be made throughout. --------------------------------------------------------------------------- Section 9.1(a)(3)(C) would be amended to add a new subsection (v) similar to those in place for the other NYSE Exchanges. The new subsection (v) would incorporate NYSE National into the existing restriction, such that the ICE Holdings board of directors would be restricted from adopting a resolution pursuant to clause (b) of Section 9.1(a)(2) unless the NYSE Holdings board of directors determines that, for so long as NYSE Holdings directly or indirectly controls NYSE National, Inc. (or its successor), neither such person nor any of its related persons is an ETP Holder (as defined in the bylaws of NYSE National, as such bylaws may be in effect from time to time) of NYSE National (``NYSE National ETP Holder''). The clause would also provide that any such person that is a related person of an ETP Holder shall hereinafter also be deemed to be an ``NYSE National ETP Holder'' for purposes of the agreement, as the context may require. Article IX, Section 9.1(a)(3)(D) would be amended to add ``NYSE Arca'' before ``ETP Holder.'' An outdated reference to NYSE Market (DE) would also be deleted. Further, a new clause (v) would be added to Section 9.1(a)(3)(D) to incorporate NYSE National into the existing restriction on the NYSE Holdings Board of Directors, such that it would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter for so long as NYSE Holdings controls NYSE National. The clause would provide that ``for so long as the Corporation directly or indirectly [[Page 96127]] controls NYSE National, neither such person nor any of its Related Persons is an NYSE National ETP Holder.'' Article IX, Section 9.1(b)(3) of Article IX [sic] would be amended to add a new subpart (G) to incorporate NYSE National into the existing restriction on the NYSE Holdings Board of Directors, so that it would provide that, subject to its fiduciary obligations under applicable law, for so long as NYSE Holdings directly or indirectly controls NYSE National (or its successor), the board of directors of NYSE Holdings shall not adopt any resolution pursuant to (b) of Section 9.1(b)(2) of the NYSE Holdings LLC Operating Agreement, unless the board of directors of NYSE Holdings shall have determined that neither such person nor any of its related persons is an NYSE National ETP Holder. Proposed Fifth Amended and Restated Certificate of Incorporation of NYSE Group, Inc. (``NYSE Group Certificate of Incorporation'') The NYSE Group Certificate of Incorporation is being amended as follows: On the first page, add ``Fifth'' and delete ``Fourth'' before ``Amended and Restated Certificate of Incorporation'' in the heading. The Recitations would be amended to reflect that this would be the fifth amendment and restatement. First, the Fifth Recitation would be updated to reflect that a Fourth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 29, 2014. A new Sixth Recitation would be updated to reflect that the Fifth Amended and Restated Certificate of Incorporation has been duly adopted. The current Sixth Recitation would become the Seventh and would reflect that the Fourth Amended and Restated Certificate of Incorporation is amended and restated in its entirety. NYSE National would be added to the list of ``Regulated Subsidiaries'' in Article 4 (Stock), Section 4(b)(1), which currently includes the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, LLC, NYSE Arca Equities, and NYSE MKT, and the obsolete references to NYSE Market (DE) and NYSE Regulation would be deleted. To distinguish between the ETP Holders of NYSE Arca Equities and those of NYSE National, Section 4(b)(1)(y) of Article IV would be amended to define an ETP Holder of NYSE Arca Equities as an ``NYSE Arca Equities ETP Holder.'' An outdated reference to NYSE Market (DE) would also be deleted. Section 4(b)(1)(y) would also be amended to add a provision to [sic] similar to those in place for the other NYSE Exchanges providing that, for so long as NYSE Group directly or indirectly controls NYSE National (or its successor), neither such person nor any of its related persons is an ETP Holder (as defined in the rules of NYSE National, as such rules may be in effect from time to time) of NYSE National (defined as an ``NYSE National ETP Holder'') and that any such person that is a related person of an NYSE National ETP Holder shall hereinafter also be deemed to be an ``NYSE National ETP Holder'' for purposes of the certificate of incorporation, as the context may require. Further, subsection 4(b)(1)(z) of Article IV would be amended to define an ETP Holder of NYSE Arca Equities as an ``NYSE Arca Equities ETP Holder'' and delete an outdated reference to NYSE Market (DE). Subsection 4(b)(1)(z) would also be amended to incorporate NYSE National into the existing restriction on the ICE Holdings Board of Directors, such that it would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter, where neither such person nor any of its related persons is, with respect to NYSE National, an NYSE National ETP Holder. A new subpart (vii) would be added to subsection 4(b)(2)(C) of Article IV to incorporate NYSE National into the existing restriction on the NYSE Group Board of Directors, such that it would be restricted from adopting a resolution to approve the exercise of voting rights that would exceed 20% of the then outstanding votes entitled to be cast on such matter, where neither such person nor any of its related persons is, with respect to NYSE National, an NYSE National ETP Holder.\17\ --------------------------------------------------------------------------- \17\ An obsolete reference to NYSE Market (DE) would also be deleted from Article IV, 4(b)(2)(C)(v). --------------------------------------------------------------------------- Article X (Confidential Information) would be amended to extend the same protection to confidential information relating to the self-regulatory function of NYSE National or its successor and delete obsolete references to NYSE Market (DE) and NYSE Regulation. Article XII (Amendments to Certificate of Incorporation) provides that, for so long as NYSE Group controls the Regulated Subsidiaries, before any amendment or repeal of any provision of the Certificate of Incorporation shall be effective, such amendment or repeal shall either (a) be filed with or filed with and approved by the SEC under Section 19 of the Exchange Act and the rules promulgated thereunder or (b) be submitted to the boards of directors of NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE MKT or the boards of directors of their successors. Article XII would be amended to add NYSE National to subsection (b) and delete references to NYSE Market (DE) and NYSE Regulation. Proposed Third Amended and Restated Bylaws of NYSE Group, Inc. (``NYSE Group Bylaws'') The NYSE Group Bylaws are being amended as follows: Add ``Third'' and delete ``Second'' before ``Amended and Restated Bylaws'' in the heading to reflect that this would be the third amendment and restatement. Article VII (Miscellaneous), Section 7.9(A)(b) currently provides that, for so long as NYSE Group controls any of the NYSE Exchanges, any amendment to or repeal of the ICE Bylaws must either be (i) filed with or filed with and approved by the Commission under section 19 of the Exchange Act and the rules promulgated thereunder, or (ii) submitted to the boards of directors of the NYSE, NYSE Market (DE), NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE Alternext US LLC or the boards of directors of their successors, in each case only to the extent that such entity continues to be controlled directly or indirectly by ICE. Section 7.9(A)(b) would be amended to delete obsolete references to NYSE Market (DE) and NYSE Regulation, replace the outdated reference to ``NYSE Alternext US LLC'' with ``NYSE MKT LLC,'' and add NYSE National. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act \18\ in general, and with Section 6(b)(1) \19\ in particular, in that it enables the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act and to comply, and to enforce compliance by its exchange members and persons associated with its exchange members, with the provisions of the Exchange Act, the rules and regulations thereunder, and the rules of the Exchange. The Exchange believes that the proposed changes to the corporate documents of the NYSE Group and its intermediary and ultimate parent entities, including the ICE bylaws and director [[Page 96128]] independence policy, ICE Holdings bylaws and certificate of incorporation, NYSE Holdings operating agreement, and the NYSE Group bylaws and certificate of incorporation, to reflect the Acquisition, including updating corporate names, would contribute to the orderly operation of the Exchange by adding clarity and transparency to the Exchange's rules and would enable the Exchange to continue to be so organized as to have the capacity to carry out the purposes of the Exchange Act and comply and enforce compliance with the provisions of the Exchange Act by its members and persons associated with its members. The Exchange therefore believes that approval of the amendment to the Bylaws is consistent with Section 6(b)(1). --------------------------------------------------------------------------- \18\ 15 U.S.C. 78f(b). \19\ 15 U.S.C. 78f(b)(1). --------------------------------------------------------------------------- For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act \20\ because the proposed rule change would be consistent with and facilitate would [sic] create a governance and regulatory structure that is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. As discussed above, the proposed updates to the corporate documents and replacement of outdated or obsolete references removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having these references in the governing documents following the Acquisition. The Exchange further believes that the proposal removes impediments to and perfects the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the governing documents. The Exchange further believes that eliminating an obsolete reference would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion. Removing such obsolete references will also further the goal of transparency and add clarity to the Exchange's rules. --------------------------------------------------------------------------- \20\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- 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 Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with updating the Exchange's rules to reflect the Acquisition and to remove obsolete references. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 45 days of the date of publication of this notice in the Federal Register or up to 90 days (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (A) By order approve or disapprove the proposed rule change, or (B) institute proceedings to determine whether the proposed rule change should be 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 (http://www.sec.gov/rules/sro.shtml); or Send an email to [email protected]. Please include File Number SR-NYSE-2016-90 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-NYSE-2016-90. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2016-90 and should be submitted on or before January 19, 2017. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\21\ Eduardo A. Aleman, Assistant Secretary. --------------------------------------------------------------------------- \21\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- [FR Doc. 2016-31483 Filed 12-28-16; 8:45 am] BILLING CODE 8011-01-P
![96124 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices
SECURITIES AND EXCHANGE of those statements may be examined at The proposed rule changes would be
COMMISSION the places specified in Item IV below. effected following approval of this rule
The Exchange has prepared summaries, filing no later than February 28, 2017,
[Release No. 34–79671; File No. SR–NYSE–
set forth in sections A, B, and C below, on a date determined by its Board.
2016–90]
of the most significant parts of such
Proposed Rule Change
Self-Regulatory Organizations; New statements.
York Stock Exchange LLC; Notice of The Exchange proposes that, in
A. Self-Regulatory Organization’s connection with the Acquisition, the
Filing of Proposed Rule Change in Statement of the Purpose of, and the Commission approve the organizational
Connection With the Proposed Statutory Basis for, the Proposed Rule documents of ICE and its wholly-owned
Acquisition of National Stock Change subsidiaries ICE Holdings and NYSE
Exchange, Inc. by the Exchange’s
1. Purpose Group and the Independence Policy of
Parent the NYSE Group, Inc. To Amend
the Board of Directors of
Certain Organizational Documents of Background Intercontinental Exchange, Inc. (‘‘ICE
NYSE Group, NYSE Holdings LLC,
On December 14, 2016, ICE entered Independence Policy’’), all of which are
Intercontinental Exchange Holdings,
into an agreement with the NSX to be amended concurrently with the
Inc., and Intercontinental Exchange,
pursuant to which its wholly-owned Acquisition to reflect ownership of
Inc. NYSE National.
subsidiary NYSE Group would acquire
December 22, 2016. all of the outstanding capital stock of The current organizational documents
Pursuant to Section 19(b)(1) 1 of the the NSX (the ‘‘Acquisition’’). As a result of ICE and its wholly-owned
Securities Exchange Act of 1934 (the of the Acquisition, the NSX would be subsidiaries provide certain protections
‘‘Act’’) 2 and Rule 19b–4 thereunder,3 renamed NYSE National, Inc. (‘‘NYSE to the NYSE Exchanges that are
notice is hereby given that, on December National’’) and would be operated as a designed to protect and facilitate their
16, 2016, New York Stock Exchange wholly-owned subsidiary of NYSE self-regulatory functions, including
LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed Group. NYSE Group is a wholly-owned certain restrictions on the ability to vote
with the Securities and Exchange subsidiary of NYSE Holdings, which is and own shares of ICE.6 In general, the
Commission (the ‘‘Commission’’) the in turn 100% owned by ICE Holdings. organizational documents of ICE and its
proposed rule change as described in ICE, a public company listed on the wholly-owned subsidiaries are being
Items I, II, and III below, which Items NYSE, owns 100% of ICE Holdings. amended to provide similar protections
have been prepared by the self- Following the Acquisition, NYSE to the NYSE National as are currently
regulatory organization. The National would continue to be provided to the NYSE Exchanges under
Commission is publishing this notice to registered as a national securities those documents.
In addition, obsolete references to
solicit comments on the proposed rule exchange and as a separate self-
NYSE Market (DE), Inc. (formerly NYSE
change from interested persons. regulatory organization (‘‘SRO’’). As
Market, Inc.) (‘‘NYSE Market (DE)’’), and
such, NYSE National would continue to
I. Self-Regulatory Organization’s NYSE Regulation, Inc. (‘‘NYSE
have separate rules, membership rosters,
Statement of the Terms of Substance of Regulation’’) found in various
and listings that would be distinct from
the Proposed Rule Change documents are proposed to be deleted.7
the rules, membership rosters, and
The Exchange proposes in connection listings of the three other registered Proposed Seventh Amended and
with the proposed acquisition of national securities exchanges and SROs Restated Bylaws of Intercontinental
National Stock Exchange, Inc. (‘‘NSX’’) owned by NYSE Group, namely, the Exchange, Inc. (‘‘ICE Bylaws’’)
by the Exchange’s parent the NYSE NYSE, NYSE MKT LLC (‘‘NYSE MKT’’), The ICE Bylaws would be amended to
Group, Inc. (‘‘NYSE Group’’), to amend and NYSE Arca, Inc. (‘‘NYSE Arca’’) reflect the Acquisition and incorporate
certain organizational documents of (together, the ‘‘NYSE Exchanges’’).4 NYSE National in the ICE Bylaws’
NYSE Group, NYSE Holdings LLC In connection with the Acquisition existing voting and ownership
(‘‘NYSE Holdings’’), Intercontinental and as discussed more fully below, the restrictions, provisions relating to the
Exchange Holdings, Inc. (‘‘ICE following organizational documents of qualifications of directors and officers
Holdings’’), and Intercontinental NYSE Group and its intermediary and and their submission to jurisdiction,
Exchange, Inc. (‘‘ICE’’). The proposed ultimate parent entities would be compliance with the federal securities
rule change is available on the amended: laws, access to books and records, and
Exchange’s Web site at www.nyse.com, • ICE bylaws and director other matters related to its control of the
at the principal office of the Exchange, independence policy, U.S. Regulated Subsidiaries.
and at the Commission’s Public • ICE Holdings bylaws and certificate
Reference Room. of incorporation, related to the Acquisition. See SR–NYSEMKT–
II. Self-Regulatory Organization’s • NYSE Holdings operating 2016–122 & SR–NYSEArca–2016–167.
6 See Securities Exchange Release No. 70210
Statement of the Purpose of, and agreement, and (August 15, 2013), 78 FR 51758 (August 21, 2013)
Statutory Basis for, the Proposed Rule • NYSE Group bylaws and certificate (approving rule changes related to NYSE Euronext
Change of incorporation. becoming a wholly owned subsidiary of ICE (then
These proposed changes would called IntercontinentalExchange Group, Inc.)).
In its filing with the Commission, the 7 NYSE Market (DE) and NYSE Regulation were
consist of technical and conforming
asabaliauskas on DSK3SPTVN1PROD with NOTICES
self-regulatory organization included previously parties to a Delegation Agreement
amendments to reflect the proposed whereby the NYSE delegated certain regulatory
statements concerning the purpose of,
new ownership of NYSE National by the functions to NYSE Regulation and certain market
and basis for, the proposed rule change functions to NYSE Market (DE). The Delegation
NYSE Group, and, indirectly, ICE.5
and discussed any comments it received Agreement was terminated when the NYSE re-
on the proposed rule change. The text integrated its regulatory and market functions. As
4 The NYSE Exchanges are referred to as the U.S.
a result, the two entities ceased being regulated
Regulated Subsidiaries in the corporate documents subsidiaries. See Securities Exchange Act Release
1 15 U.S.C. 78s(b)(1). proposed to be amended in this rule filing. No. 75991 (September 28, 2015), 80 FR 59837
2 15 U.S.C. 78a. 5 The proposed revisions are also discussed in the (October 2, 2015). NYSE Regulation has since been
3 17 CFR 240.19b–4. NYSE MKT and NYSE Arca companion rule filings merged out of existence.
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![96126 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices
related persons is an NYSE National Proposed Independence Policy of the reflect the acquisition of NYSE National,
ETP Holder. Board of Directors of Intercontinental Inc. by the Company’s wholly-owned
Exchange, Inc. (‘‘ICE Director subsidiary NYSE Group, Inc.;’’.
Proposed Fifth Amended and Restated Independence Policy’’) • The definition of ETP Holder in
Bylaws of Intercontinental Exchange Article I (Interpretation), Section 1.1
Holdings, Inc. (‘‘ICE Holdings Bylaws’’) The ICE Director Independence Policy
would be amended to add NYSE would be deleted and new definitions of
The ICE Holdings Bylaws are being National to the section describing an NYSE Arca ETP Holder and NYSE
amended as follows: ‘‘Independence Qualifications.’’ In National ETP Holder would be added.
particular, NYSE National would be The obsolete definition of NYSE Market
• The cover page and heading on the (DE) would be deleted.15
added to categories (1)(b) and (c) that
first page would be amended to add
refer to ‘‘members,’’ as defined in • Article IX (Voting and Ownership
‘‘Fifth’’ and delete ‘‘Fourth’’ before Limitations), Section 9.1(a)(3)(C) would
‘‘Amended and Restated Bylaws’’ to section 3(a)(3)(A)(i), 3(a)(3)(A)(ii),
3(a)(3)(A)(iii) and 3(a)(3)(A)(iv) of the be amended to add ‘‘NYSE Arca’’ before
reflect that this would be the fifth ‘‘ETP Holder’’ and the defined term
amendment and restatement. The Exchange Act.12 The clause ‘‘and
‘Person Associated with an ETP Holder’ ‘‘NYSE Arca ETP Holder’’ to distinguish
effective date on the cover page would between the ETP Holders of NYSE Arca
also be updated. (as defined in Rule 1.5 of NYSE
National, Inc.)’’ would also be added to Equities and those of NYSE National.
• Similar to the ICE Bylaws discussed category (1)(b) in reference to ‘‘allied An obsolete reference to NYSE Market
above, the ICE Holdings Bylaws would persons.’’ NYSE National would also be (DE) would also be deleted from Section
be amended to include ‘‘NYSE National, added to subsections (4) and (5) of the 9.1(a)(3)(C).16
Inc.’’ in: Section 9.1(a)(3)(C) would be
‘‘Independence Qualifications’’
amended to add a new subsection (v)
Æ The definition of ‘‘U.S. Regulated section.13 Obsolete references to NYSE
similar to those in place for the other
Subsidiaries’’ in Article III, Section 3.15, Market (DE) and NYSE Regulation
NYSE Exchanges. The new subsection
which currently includes the NYSE, would also be deleted.14
(v) would incorporate NYSE National
NYSE Market (DE), NYSE Regulation, Proposed Eighth Amended and Restated into the existing restriction, such that
NYSE Arca, LLC, NYSE Arca, NYSE Limited Liability Company Agreement the ICE Holdings board of directors
Arca Equities, and NYSE MKT LLC, and of NYSE Holdings LLC (‘‘NYSE would be restricted from adopting a
to provide that the term ‘‘U.S. Regulated Holdings LLC Operating Agreement’’) resolution pursuant to clause (b) of
Subsidiaries’’ includes those entities Section 9.1(a)(2) unless the NYSE
listed or their successors, but only so The NYSE Holdings LLC Operating
Agreement would be amended as Holdings board of directors determines
long as they continue to be controlled, that, for so long as NYSE Holdings
directly or indirectly, by ICE Holdings. follows:
• The heading and preamble would directly or indirectly controls NYSE
Obsolete references to NYSE Market National, Inc. (or its successor), neither
(DE) and NYSE Regulation in that be amended to add ‘‘Eighth’’ and delete
‘‘Seventh’’ before ‘‘Amended and such person nor any of its related
section would also be deleted; 9 persons is an ETP Holder (as defined in
Restated Limited Liability Agreement’’
Æ Article VIII (Confidential to reflect that this would be the eighth the bylaws of NYSE National, as such
Information), Section 8.1, which would amendment and restatement. The bylaws may be in effect from time to
be amended to extend the same effective date would also be updated. time) of NYSE National (‘‘NYSE
protection to confidential information After ‘‘This Agreement amends and National ETP Holder’’). The clause
relating to the self-regulatory function of restates in its entirety that’’ in the would also provide that any such
NYSE National or its successor; 10 and second full sentence would be added person that is a related person of an ETP
Æ Article XI (Amendment to the the clause ‘‘certain Seventh Amended Holder shall hereinafter also be deemed
Bylaws), Section 11.3, which provides and Restated Limited Liability Company to be an ‘‘NYSE National ETP Holder’’
that, for so long as ICE controls any of Agreement, dated as of May 22, 2015, for purposes of the agreement, as the
the U.S. Regulated Subsidiaries, any which amended and restated in its context may require.
amendment to or repeal of the ICE entirety that.’’ • Article IX, Section 9.1(a)(3)(D)
Bylaws must either be (i) filed with or • The current penultimate whereas would be amended to add ‘‘NYSE Arca’’
filed with and approved by the clause would be amended by adding ‘‘in before ‘‘ETP Holder.’’ An outdated
Commission under section 19 of the May 2015’’ before ‘‘the Company’’ and reference to NYSE Market (DE) would
Exchange Act and the rules promulgated ‘‘now desires to amend and restate’’ also be deleted.
thereunder, or (ii) submitted to the immediately following would be Further, a new clause (v) would be
boards of directors of the U.S. Regulated replaced with ‘‘amended and restated.’’ added to Section 9.1(a)(3)(D) to
Subsidiaries or the boards of directors of ‘‘Had’’ and ‘‘are’’ would be changed to incorporate NYSE National into the
their successors, in each case only to the the past tense ‘‘had’’ [sic] and ‘‘were’’ in existing restriction on the NYSE
extent that such entity continues to be the final sentence. Holdings Board of Directors, such that it
controlled directly or indirectly by ICE • The following new whereas clause would be restricted from adopting a
Holdings. Obsolete references to NYSE would be added immediately above the resolution to approve the exercise of
Market (DE) and NYSE Regulation current last whereas clause: voting rights that would exceed 20% of
would also be deleted from Article VXI, ‘‘WHEREAS, the Company now desires the then outstanding votes entitled to be
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Section 11.3.11 to amend and restate the Seventh cast on such matter for so long as NYSE
Amended and Restated Agreement to Holdings controls NYSE National. The
9 See note 7, supra.
clause would provide that ‘‘for so long
10 ArticleVIII, Section 8.1 would also be amended 12 See 15 U.S.C. 78c(a)(3)(a). as the Corporation directly or indirectly
to delete obsolete references to NYSE Market (DE) 13 Conforming changes would also be made to
and NYSE Regulation. delete and replace connectors. The link in footnote 15 See note 7, supra.
11 See note 7, supra. Conforming changes to 2 to the NYSE Listed Company Manual and 16 See note 7, supra. Conforming changes to
delete and replace connectors would also be made commentary would also be updated. delete and replace connectors would also be made
throughout. 14 See note 7, supra. throughout.
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![Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices 96127
controls NYSE National, neither such Section 4(b)(1)(y) would also be Section 19 of the Exchange Act and the
person nor any of its Related Persons is amended to add a provision to [sic] rules promulgated thereunder or (b) be
an NYSE National ETP Holder.’’ similar to those in place for the other submitted to the boards of directors of
• Article IX, Section 9.1(b)(3) of NYSE Exchanges providing that, for so NYSE, NYSE Market (DE), NYSE
Article IX [sic] would be amended to long as NYSE Group directly or Regulation, NYSE Arca, NYSE Arca
add a new subpart (G) to incorporate indirectly controls NYSE National (or its Equities, and NYSE MKT or the boards
NYSE National into the existing successor), neither such person nor any of directors of their successors. Article
restriction on the NYSE Holdings Board of its related persons is an ETP Holder XII would be amended to add NYSE
of Directors, so that it would provide (as defined in the rules of NYSE National to subsection (b) and delete
that, subject to its fiduciary obligations National, as such rules may be in effect references to NYSE Market (DE) and
under applicable law, for so long as from time to time) of NYSE National NYSE Regulation.
NYSE Holdings directly or indirectly (defined as an ‘‘NYSE National ETP
controls NYSE National (or its Proposed Third Amended and Restated
Holder’’) and that any such person that
successor), the board of directors of Bylaws of NYSE Group, Inc. (‘‘NYSE
is a related person of an NYSE National
NYSE Holdings shall not adopt any Group Bylaws’’)
ETP Holder shall hereinafter also be
resolution pursuant to (b) of Section deemed to be an ‘‘NYSE National ETP The NYSE Group Bylaws are being
9.1(b)(2) of the NYSE Holdings LLC Holder’’ for purposes of the certificate of amended as follows:
Operating Agreement, unless the board incorporation, as the context may • Add ‘‘Third’’ and delete ‘‘Second’’
of directors of NYSE Holdings shall require. before ‘‘Amended and Restated Bylaws’’
have determined that neither such • Further, subsection 4(b)(1)(z) of in the heading to reflect that this would
person nor any of its related persons is Article IV would be amended to define be the third amendment and
an NYSE National ETP Holder. an ETP Holder of NYSE Arca Equities as restatement.
an ‘‘NYSE Arca Equities ETP Holder’’ Article VII (Miscellaneous), Section
Proposed Fifth Amended and Restated 7.9(A)(b) currently provides that, for so
Certificate of Incorporation of NYSE and delete an outdated reference to
NYSE Market (DE). long as NYSE Group controls any of the
Group, Inc. (‘‘NYSE Group Certificate of NYSE Exchanges, any amendment to or
Subsection 4(b)(1)(z) would also be
Incorporation’’) repeal of the ICE Bylaws must either be
amended to incorporate NYSE National
The NYSE Group Certificate of into the existing restriction on the ICE (i) filed with or filed with and approved
Incorporation is being amended as Holdings Board of Directors, such that it by the Commission under section 19 of
follows: would be restricted from adopting a the Exchange Act and the rules
• On the first page, add ‘‘Fifth’’ and resolution to approve the exercise of promulgated thereunder, or (ii)
delete ‘‘Fourth’’ before ‘‘Amended and voting rights that would exceed 20% of submitted to the boards of directors of
Restated Certificate of Incorporation’’ in the then outstanding votes entitled to be the NYSE, NYSE Market (DE), NYSE
the heading. The Recitations would be cast on such matter, where neither such Regulation, NYSE Arca, NYSE Arca
amended to reflect that this would be person nor any of its related persons is, Equities, and NYSE Alternext US LLC or
the fifth amendment and restatement. with respect to NYSE National, an the boards of directors of their
First, the Fifth Recitation would be NYSE National ETP Holder. successors, in each case only to the
updated to reflect that a Fourth • A new subpart (vii) would be added extent that such entity continues to be
Amended and Restated Certificate of to subsection 4(b)(2)(C) of Article IV to controlled directly or indirectly by ICE.
Incorporation was filed with the incorporate NYSE National into the Section 7.9(A)(b) would be amended to
Secretary of State of the State of existing restriction on the NYSE Group delete obsolete references to NYSE
Delaware on December 29, 2014. A new Board of Directors, such that it would be Market (DE) and NYSE Regulation,
Sixth Recitation would be updated to restricted from adopting a resolution to replace the outdated reference to ‘‘NYSE
reflect that the Fifth Amended and approve the exercise of voting rights Alternext US LLC’’ with ‘‘NYSE MKT
Restated Certificate of Incorporation has that would exceed 20% of the then LLC,’’ and add NYSE National.
been duly adopted. The current Sixth outstanding votes entitled to be cast on
Recitation would become the Seventh 2. Statutory Basis
such matter, where neither such person
and would reflect that the Fourth nor any of its related persons is, with The Exchange believes that the
Amended and Restated Certificate of respect to NYSE National, an NYSE proposed rule change is consistent with
Incorporation is amended and restated National ETP Holder.17 Section 6(b) of the Exchange Act 18 in
in its entirety. • Article X (Confidential Information) general, and with Section 6(b)(1) 19 in
• NYSE National would be added to would be amended to extend the same particular, in that it enables the
the list of ‘‘Regulated Subsidiaries’’ in protection to confidential information Exchange to be so organized as to have
Article 4 (Stock), Section 4(b)(1), which relating to the self-regulatory function of the capacity to be able to carry out the
currently includes the NYSE, NYSE NYSE National or its successor and purposes of the Exchange Act and to
Market (DE), NYSE Regulation, NYSE delete obsolete references to NYSE comply, and to enforce compliance by
Arca, LLC, NYSE Arca Equities, and Market (DE) and NYSE Regulation. its exchange members and persons
NYSE MKT, and the obsolete references • Article XII (Amendments to associated with its exchange members,
to NYSE Market (DE) and NYSE Certificate of Incorporation) provides with the provisions of the Exchange Act,
Regulation would be deleted. that, for so long as NYSE Group controls the rules and regulations thereunder,
• To distinguish between the ETP
asabaliauskas on DSK3SPTVN1PROD with NOTICES
the Regulated Subsidiaries, before any and the rules of the Exchange. The
Holders of NYSE Arca Equities and amendment or repeal of any provision Exchange believes that the proposed
those of NYSE National, Section of the Certificate of Incorporation shall changes to the corporate documents of
4(b)(1)(y) of Article IV would be be effective, such amendment or repeal the NYSE Group and its intermediary
amended to define an ETP Holder of shall either (a) be filed with or filed and ultimate parent entities, including
NYSE Arca Equities as an ‘‘NYSE Arca with and approved by the SEC under the ICE bylaws and director
Equities ETP Holder.’’ An outdated
reference to NYSE Market (DE) would 17 An obsolete reference to NYSE Market (DE) 18 15 U.S.C. 78f(b).
also be deleted. would also be deleted from Article IV, 4(b)(2)(C)(v). 19 15 U.S.C. 78f(b)(1).
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![96128 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices
independence policy, ICE Holdings also further the goal of transparency and Commission process and review your
bylaws and certificate of incorporation, add clarity to the Exchange’s rules. comments more efficiently, please use
NYSE Holdings operating agreement, only one method. The Commission will
B. Self-Regulatory Organization’s
and the NYSE Group bylaws and post all comments on the Commission’s
Statement on Burden on Competition
certificate of incorporation, to reflect the Internet Web site (http://www.sec.gov/
Acquisition, including updating The Exchange does not believe that rules/sro.shtml). Copies of the
corporate names, would contribute to the proposed rule change will impose submission, all subsequent
the orderly operation of the Exchange by any burden on competition that is not amendments, all written statements
adding clarity and transparency to the necessary or appropriate in furtherance with respect to the proposed rule
Exchange’s rules and would enable the of the purposes of the Exchange Act. change that are filed with the
Exchange to continue to be so organized The proposed rule change is not Commission, and all written
as to have the capacity to carry out the intended to address competitive issues communications relating to the
purposes of the Exchange Act and but rather is concerned solely with proposed rule change between the
comply and enforce compliance with updating the Exchange’s rules to reflect Commission and any person, other than
the provisions of the Exchange Act by the Acquisition and to remove obsolete those that may be withheld from the
references. public in accordance with the
its members and persons associated
provisions of 5 U.S.C. 552, will be
with its members. The Exchange C. Self-Regulatory Organization’s
available for Web site viewing and
therefore believes that approval of the Statement on Comments on the
printing in the Commission’s Public
amendment to the Bylaws is consistent Proposed Rule Change Received From Reference Room, 100 F Street NE.,
with Section 6(b)(1). Members, Participants, or Others Washington, DC 20549 on official
For similar reasons, the Exchange also No written comments were solicited business days between the hours of
believes that this filing furthers the or received with respect to the proposed 10:00 a.m. and 3:00 p.m. Copies of the
objectives of Section 6(b)(5) of the rule change. filing also will be available for
Exchange Act 20 because the proposed inspection and copying at the principal
III. Date of Effectiveness of the
rule change would be consistent with office of the Exchange. All comments
Proposed Rule Change and Timing for
and facilitate would [sic] create a received will be posted without change;
Commission Action
governance and regulatory structure that the Commission does not edit personal
is designed to prevent fraudulent and Within 45 days of the date of identifying information from
manipulative acts and practices, to publication of this notice in the Federal submissions. You should submit only
promote just and equitable principles of Register or up to 90 days (i) as the information that you wish to make
trade, to foster cooperation and Commission may designate if it finds available publicly. All submissions
coordination with persons engaged in such longer period to be appropriate should refer to File Number SR–NYSE–
regulating, clearing, settling, processing and publishes its reasons for so finding 2016–90 and should be submitted on or
information with respect to, and or (ii) as to which the self-regulatory before January 19, 2017.
facilitating transactions in securities, to organization consents, the Commission For the Commission, by the Division of
remove impediments to, and perfect the will: Trading and Markets, pursuant to delegated
mechanism of a free and open market (A) By order approve or disapprove authority.21
and a national market system and, in the proposed rule change, or Eduardo A. Aleman,
general, to protect investors and the (B) institute proceedings to determine Assistant Secretary.
public interest. As discussed above, the whether the proposed rule change
[FR Doc. 2016–31483 Filed 12–28–16; 8:45 am]
proposed updates to the corporate should be disapproved.
BILLING CODE 8011–01–P
documents and replacement of outdated IV. Solicitation of Comments
or obsolete references removes
Interested persons are invited to
impediments to and perfects the SECURITIES AND EXCHANGE
submit written data, views, and
mechanism of a free and open market by COMMISSION
arguments concerning the foregoing,
removing confusion that may result including whether the proposed rule [Release No. 34–79675; File No. SR–
from having these references in the change is consistent with the Act. NYSEMKT–2016–122]
governing documents following the Comments may be submitted by any of
Acquisition. The Exchange further the following methods: Self-Regulatory Organizations; NYSE
believes that the proposal removes MKT LLC; Notice of Filing of Proposed
impediments to and perfects the Electronic Comments Rule Change in Connection With the
mechanism of a free and open market by • Use the Commission’s Internet Proposed Acquisition of National
ensuring that persons subject to the comment form (http://www.sec.gov/ Stock Exchange, Inc. by the NYSE
Exchange’s jurisdiction, regulators, and rules/sro.shtml); or Group, Inc.
the investing public can more easily • Send an email to rule-comments@ December 22, 2016.
navigate and understand the governing sec.gov. Please include File Number SR– Pursuant to Section 19(b)(1) 1 of the
documents. The Exchange further NYSE–2016–90 on the subject line. Securities Exchange Act of 1934 (the
believes that eliminating an obsolete
Paper Comments ‘‘Act’’) 2 and Rule 19b–4 thereunder,3
reference would not be inconsistent
asabaliauskas on DSK3SPTVN1PROD with NOTICES
notice is hereby given that, on December
with the public interest and the • Send paper comments in triplicate
16, 2016, NYSE MKT LLC (the
protection of investors because investors to Secretary, Securities and Exchange
‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with
will not be harmed and in fact would Commission, 100 F Street NE.,
the Securities and Exchange
benefit from increased transparency, Washington, DC 20549–1090.
thereby reducing potential confusion. All submissions should refer to File 21 17 CFR 200.30–3(a)(12).
Removing such obsolete references will Number SR–NYSE–2016–90. This file 1 15 U.S.C.78s(b)(1).
number should be included on the 2 15 U.S.C. 78a.
20 15 U.S.C. 78f(b)(5). subject line if email is used. To help the 3 17 CFR 240.19b-4.
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Document Created: 2016-12-29 01:59:08
Document Modified: 2016-12-29 01:59:08
| 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 96124 |
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