82 FR 18038 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Amending the Certificate of Incorporation and Bylaws of Its Ultimate Parent Company, Intercontinental Exchange, Inc.
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 82, Issue 71 (April 14, 2017)
Federal Register Volume 82, Issue 71 (April 14, 2017)
| Page Range | 18038-18044 | |
| FR Document | 2017-07533 |
[Federal Register Volume 82, Number 71 (Friday, April 14, 2017)] [Notices] [Pages 18038-18044] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-07533] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-80420; File No. SR-NYSE-2017-13] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Amending the Certificate of Incorporation and Bylaws of Its Ultimate Parent Company, Intercontinental Exchange, Inc. April 10, 2017. 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 March 28, 2017, 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. On April 6, 2017, the Exchange filed Amendment No. 1 to the proposal.\4\ The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons. --------------------------------------------------------------------------- \1\ 15 U.S.C.78s(b)(1). \2\ 15 U.S.C. 78a. \3\ 17 CFR 240.19b-4. \4\ Amendment No. 1 clarifies that the word ``indirect'' is proposed to be deleted from clause (iii)(y) of the first sentence of Section 2.13(b) of ICE's bylaws. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend the certificate of incorporation and bylaws of its ultimate parent company, Intercontinental Exchange, Inc. (``ICE''), to (1) update and streamline references to ICE subsidiaries that either are or control national securities exchanges and delete references to other subsidiaries of ICE; (2) eliminate an obsolete cross-reference in ICE's certificate of incorporation to its bylaws and make a technical correction to a cross-reference within the bylaws; (3) make certain simplifying or clarifying changes in ICE's bylaws relating to the location of stockholder meetings, quorum requirements, and requirements applicable to persons entitled to nominate directors or make proposals at a meeting of ICE's stockholders; and (4) replace obsolete references in the bylaws to the Vice Chair with references to the lead independent director. 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 The Exchange proposes to amend ICE's Third Amended and Restated Certificate of Incorporation (the ``ICE Certificate'') and Seventh Amended and Restated Bylaws (the ``ICE Bylaws'') to (1) update and streamline references to ICE subsidiaries that either are or control national securities exchanges and delete references to other subsidiaries of ICE; (2) eliminate an obsolete cross-reference in the ICE Certificate to the ICE Bylaws and make a technical correction to a cross-reference within the ICE Bylaws; (3) make certain simplifying or clarifying changes in the ICE Bylaws relating to the location of stockholder meetings, quorum requirements, and requirements applicable to persons entitled to nominate directors or make proposals at a meeting of ICE's stockholders; and (4) replace obsolete references in the ICE Bylaws to the Vice Chair with references to the lead independent director. ICE owns 100% of the equity interest in Intercontinental Exchange Holdings, Inc. (``ICE Holdings''), which in turn owns 100% of the equity interest in NYSE Holdings LLC (``NYSE Holdings''). NYSE Holdings owns 100% of the equity interest of NYSE Group, Inc. (``NYSE Group''), which in turn directly owns 100% of the equity interest of the Exchange and its national securities exchange affiliates, NYSE Arca, Inc. (``NYSE Arca''), NYSE MKT LLC (``NYSE MKT'') and NYSE National, Inc. (``NYSE National'').\5\ --------------------------------------------------------------------------- \5\ ICE is a publicly traded company listed on the Exchange. The Exchange's affiliates NYSE MKT, NYSE Arca, and NYSE National have each submitted substantially the same proposed rule change to propose the changes described herein. See SR-NYSEMKT-2017-17, SR- NYSEArca-2017-29, and SR-NYSENAT-2017-01. --------------------------------------------------------------------------- ICE Certificate The Exchange proposes to amend the limitations on voting and ownership in Article V of the ICE Certificate to update and streamline references to ICE subsidiaries that are national securities exchanges or that control national securities exchanges, as well as to delete references to other subsidiaries of ICE. In addition, it proposes to revise the amendment provision in Article X of the ICE Certificate to remove an obsolete reference. Limitations on Voting and Ownership Article V of the ICE Certificate establishes voting limitations and [[Page 18039]] ownership concentration limitations on owners of ICE common stock above certain thresholds for so long as ICE owns any U.S. Regulated Subsidiary. By reference to the ICE Bylaws, ``U.S. Regulated Subsidiaries'' is defined to mean the four national securities exchanges owned by ICE (the Exchange, NYSE Arca, NYSE MKT, and NYSE National), NYSE Arca, LLC, and NYSE Arca Equities, Inc. (``NYSE Arca Equities''), or their successors, in each case to the extent that such entities continue to be controlled, directly or indirectly, by ICE.\6\ --------------------------------------------------------------------------- \6\ ICE Certificate, Article V, Section A.10; ICE Bylaws, Article III, Section 3.15. NYSE Arca, LLC, is a subsidiary of NYSE Group, and NYSE Arca Equities is a subsidiary of NYSE Arca. --------------------------------------------------------------------------- Article V of the ICE Certificate also authorizes ICE's Board of Directors to grant exceptions to the voting and ownership concentration limitations if the Board of Directors makes certain determinations. Those include determinations that such an exception would not impair the ability of ICE, the U.S. Regulated Subsidiaries, ICE Holdings, NYSE Holdings, and NYSE Group to perform their respective responsibilities under the Exchange Act and the rules and regulations thereunder, and that such an exception is otherwise in the best interests of ICE, its stockholders and the U.S. Regulated Subsidiaries. The NYSE proposes to amend Article V to replace references to the U.S. Regulated Subsidiaries with references to the ``Exchanges.'' An ``Exchange'' would be defined as a national securities exchange registered under Section 6 of the Exchange Act \7\ that is directly or indirectly controlled by ICE.\8\ Accordingly, Article V would no longer include references to NYSE Arca, LLC or NYSE Arca Equities. The NYSE believes omitting such entities is appropriate because the Exchange Act definition of ``exchange'' states that ``exchange'' ``includes the market place and the market facilities maintained by such exchange.'' \9\ In addition, NYSE Arca, as the national securities exchange, has the regulatory and self-regulatory responsibility for the NYSE Arca options and equities markets.\10\ Moreover, the proposed change would align Article V with voting and ownership concentration limits in the certificates of incorporation of other publicly traded companies that own one or more national securities exchanges, which do not include references to subsidiaries other than national securities exchanges.\11\ --------------------------------------------------------------------------- \7\ 15 U.S.C. 78f. \8\ See proposed Fourth Amended and Restated Certificate of Incorporation of Intercontinental Exchange, Inc. (``Proposed ICE Certificate''), Article V, Section A.3(a). \9\ 15 U.S.C. 78c(a)(1). \10\ See NYSE Arca Equities Rule 3.4 (``The NYSE Arca, Inc. (`NYSE Arca Parent'), as a self-regulatory organization registered with the Securities and Exchange Commission pursuant to Section 6 of the Exchange Act, shall have ultimate responsibility in the administration and enforcement of rules governing the operation of its subsidiary, NYSE Arca Equities, Inc. (`Corporation')''). See also NYSE Arca Equities Rule 14.1. \11\ See Second Amended and Restated Certificate of Incorporation of CBOE Holdings, Inc. (``CBOE Certificate''), Article Sixth, Sections (a)(ii)(A) and (b)(ii)(A) (referencing ``Regulated Securities Exchange Subsidiaries''); and Amended and Restated Certificate of Incorporation of Bats Global Markets, Inc. (``Bats Certificate''), Article Fifth, Section (b)(i) and (ii) (referencing ``Exchanges''). --------------------------------------------------------------------------- As noted above, Article V of the ICE Certificate authorizes ICE's Board of Directors to grant exceptions to the voting and ownership concentration limitations if it makes certain determinations. Such determinations include that the proposed exception would not impair the ability of ICE Holdings, NYSE Holdings and NYSE Group to perform their respective responsibilities under the Exchange Act and the rules and regulations thereunder.\12\ The NYSE proposes to amend Article V to replace the references to ICE Holdings, NYSE Holdings and NYSE Group with the defined term ``Intermediate Holding Companies.'' --------------------------------------------------------------------------- \12\ ICE Certificate, Article V, Sections A.3(a)(i) and B.3(a)(i). --------------------------------------------------------------------------- Finally, Article V includes lengthy provisions listing the different categories of members and permit holders of each of the NYSE, NYSE MKT and NYSE Arca.\13\ The NYSE proposes to use a new defined term, ``Member,'' to mean a person that is a ``member'' of an Exchange within the meaning of Section 3(a)(3)(A) of the Exchange Act.\14\ The NYSE believes that using ``Member'' in place of the list of categories of members and permit holders would simplify the provisions and avoid Exchange-by-Exchange descriptions without substantive change. Each of the categories listed--an ETP Holder of NYSE Arca Equities (as defined in the NYSE Arca Equities rules of NYSE Arca); an OTP Holder or OTP Firm of NYSE Arca (each as defined in the rules of NYSE Arca); a ``member'' or ``member organization'' of NYSE (as defined in the rules of the NYSE) and NYSE MKT \15\--is a ``member'' of an exchange within the meaning of Section 3(a)(3)(A) of the Exchange Act.\16\ --------------------------------------------------------------------------- \13\ See ICE Certificate, Article V, Section A.3(c)(ii) and (d)(ii) and Section A.9. \14\ 15 U.S.C. 78c(a)(3)(A). \15\ See id. \16\ 15 U.S.C. 78c(a)(3)(A). --------------------------------------------------------------------------- More specifically, the revised ICE Certificate would require, in the case of a person seeking approval to exercise voting rights in excess of 20% of the outstanding votes, that neither such person nor any of its related persons be a Member of an Exchange, instead of referring to the different categories of membership recognized by each Exchange.\17\ Similarly, the conditions relating to a person seeking approval to exceed the ownership concentration limitation would be rephrased in the same way.\18\ Use of ``Member'' would permit a simplification, without substantive change, of the portion of the definition of the term ``Related Persons'' relating to members and trading permit holders.\19\ --------------------------------------------------------------------------- \17\ See Proposed ICE Certificate, Article V, Section A.3(c)(ii) and (d)(ii). \18\ See Proposed ICE Certificate, Article V, Section B.3(d). \19\ See Proposed ICE Certificate, Article V, Section A.10. For the current definition of ``Related Persons,'' see ICE Certificate, Article V, Section A.9. --------------------------------------------------------------------------- The NYSE believes that the use of ``Member'' and the changes to remove the Exchange-by-Exchange lists of categories of Members would be appropriate because it would align the provision in the ICE Certificate with voting and ownership concentration limits in the certificates of incorporation of other publicly traded companies that own one or more national securities exchanges, which use a similar description of membership.\20\ --------------------------------------------------------------------------- \20\ See Bats Certificate, Article Fifth, Sections (a)(ii)(D) and (E) (defining an ``Exchange Member'' as ``a Person that is a registered broker or dealer that has been admitted to membership in any national securities exchange registered under Section 6 of the Act with the Securities and Exchange Commission . . . that is a direct or indirect subsidiary of'' Bats Global Markets, Inc.); and CBOE Certificate, Article Sixth, Sections (a)(ii)(C)(y) and (b)(ii)(D) (defining a ``Trading Permit Holder'' ``as defined in the Bylaws of any Regulated Securities Exchange Subsidiary as they may be amended from time to time''). --------------------------------------------------------------------------- To implement the proposed changes, the NYSE proposes the following amendments to Article V of the ICE Certificate:In Article V, Section A.1, the text ``any U.S. Regulated Subsidiary (as defined below)'' would be replaced with ``a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the `Exchange Act').'' In Article V, Section A.2, the text ``Securities Exchange Act of 1934, as amended (the `Exchange Act'),'' would be replaced with ``Exchange Act.'' In Article V, Section A.3(a), the text ``U.S. Regulated Subsidiary'' would be replaced with the text ``national securities exchange registered under Section 6 of the Exchange Act that is [[Page 18040]] directly or indirectly controlled by the Corporation (each such national securities exchange so controlled, an `Exchange'), any entity controlled by the Corporation that is not itself an Exchange but that directly or indirectly controls an Exchange (each such controlling entity, an `Intermediate Holding Company') or''; the text ``, Intercontinental Exchange Holdings, Inc. (`ICE Holdings'), NYSE Holdings LLC (`NYSE Holdings') or NYSE Group, Inc. (`NYSE Group') (if and to the extent that NYSE Group continues to exist as a separate entity)'' would be deleted; and ``the U.S. Regulated Subsidiaries'' would be replaced with ``each Exchange.'' In Article V, Section A.3(c), ``and'' would be added between (i) and (ii); the text ``NYSE Arca, Inc. (`NYSE Arca') or NYSE Arca Equities, Inc. (`NYSE Arca Equities') or any facility of NYSE Arca'' would be replaced with ``one or more Exchanges''; and the text ``a Member (as defined below) of any Exchange'' would replace the text from ``an ETP Holder (as defined in the NYSE Arca Equities rules of NYSE Arca'' through the end of the paragraph. In Article V, Section A.3(d), ``and'' would be added between (i) and (ii); the text ``NYSE Arca or NYSE Arca Equities or any facility of NYSE Arca'' would be replaced with ``one or more Exchanges''; and the text ``a Member of any Exchange'' would replace the text from ``an ETP Holder'' through the end of the paragraph. The definition of ``Member'' would be added as new Article V, Section A.8, defined to ``mean a Person that is a `member' of an Exchange within the meaning of Section 3(a)(3)(A) of the Exchange Act.'' Article V, Sections A.8 and A.9 would be renumbered as Sections A.9 and A.10, respectively. In Article V, Section A.9 (which would be renumbered A.10), the definition of the term ``Related Person'' would be simplified to eliminate the Exchange-by-Exchange definition, as follows: In Section A.10(d), the text `` `member organization' (as defined in the rules of New York Stock Exchange, as such rules may be in effect from time to time), any `member' (as defined in the rules of New York Stock Exchange, as such rules may be in effect from time to time)'' would be replaced with ``Member, any Person''; In Section A.10(e), the text ``an OTP Firm, any OTP Holder that is associated with such Person'' would be replaced with ``natural person and is a Member, any broker or dealer that is also a Member with which such Person is associated''; ``and'' would be added between Sections A.10(g) and (h); and Sections A.10(i) through (l) would be deleted. The definition of ``U.S. Regulated Subsidiary'' and ``U.S. Regulated Subsidiaries'' in Article V, Section A.10 would be deleted. In Article V, Section B.1, the term ``Exchange'' would replace the term ``U.S. Regulated Subsidiary.'' In Article V, Section B.3(a), the text ``Exchange, Intermediate Holding Company or'' would replace the text ``U.S. Regulated Subsidiaries,''; the text ``ICE Holdings, NYSE Holdings or NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity)'' would be deleted; and ``each Exchange'' would replace ``the U.S. Regulated Subsidiaries.'' In Article V, Section B.3(d), the text ``NYSE Arca or NYSE Arca Equities or any facility of NYSE Arca'' would be replaced with ``any Exchange''; and the text ``an ETP Holder'' through the end of the paragraph would be replaced with ``a Member of any Exchange.'' The word ``and'' would be added between Article V, Section B.3(c) and (d); and Article V, Section B.3(e) and (f) would be deleted. Amendments In addition to the amendments to Article V, the NYSE proposes to amend Article X (Amendments) of the ICE Certificate. Clause (A) of Article X requires the vote of 80% of all outstanding shares entitled to vote in order to reduce the voting requirement set forth in Section 11.2(b) of the ICE Bylaws. However, Section 11.2(b) of the ICE Bylaws was deleted in 2015 after the sale by ICE of the Euronext business.\21\ Accordingly, the NYSE proposes to delete the requirement. --------------------------------------------------------------------------- \21\ See Securities Exchange Act Release No. 74928 (May 12, 2015), 80 FR 28331 (May 18, 2015) (SR-NYSE-2015-18). --------------------------------------------------------------------------- Clause (B) of Article X currently requires that, so long as ICE controls any of the U.S. Regulated Subsidiaries, any proposed amendment or repeal of any provision of the ICE Certificate must be submitted to the boards of the NYSE, NYSE Market, NYSE Regulation, NYSE Arca, NYSE Arca Equities, and NYSE MKT for a determination as to whether such amendment or repeal must be filed with the Commission under Section 19 of the Exchange Act.\22\ The NYSE proposes that, in Clause (B) of Article X, the text ``of the U.S. Regulated Subsidiaries'' would be replaced with ``Exchange''; and ``New York Stock Exchange, NYSE Market, NYSE Regulation, Inc., NYSE Arca, NYSE Arca Equities and NYSE MKT'' would be replaced with ``each Exchange.'' The NYSE believes that the use of ``Exchange'' is appropriate for the reasons discussed above. --------------------------------------------------------------------------- \22\ 15 U.S.C. 78s. --------------------------------------------------------------------------- Additional Changes The ICE Certificate includes references to NYSE Market (DE), Inc., defined as ``NYSE Market,'' and NYSE Regulation, Inc. (``NYSE Regulation''). NYSE Market 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. 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.\23\ NYSE Regulation was subsequently merged out of existence. The proposed changes described above would delete all references to NYSE Market and NYSE Regulation from the ICE Certificate.\24\ --------------------------------------------------------------------------- \23\ See Securities Exchange Act Release No. 75991 (September 28, 2015), 80 FR 59837 (October 2, 2015 (SR-NYSE-2015-27). \24\ See ICE Certificate Article V, Sections A.3(c)(iii) and (d)(iii) and Section B.3(e), and Article X, clause (B). --------------------------------------------------------------------------- Finally, conforming changes would be made to the title, recitals and signature line of the ICE Certificate. ICE Bylaws The Exchange proposes to make certain amendments to the ICE Bylaws to correspond to the proposed amendments to the ICE Certificate. In addition, the Exchange proposes to amend the ICE Bylaws to make certain changes relating to the location of stockholder meetings, quorum requirements, and requirements applicable to persons entitled to nominate directors or make proposals at a meeting of ICE's stockholders. Finally, it proposes to replace obsolete references to the Vice Chair with references to the lead independent director. Changes Corresponding to the Proposed Amendments to the ICE Certificate The Exchange proposes to make changes to the ICE Bylaws corresponding to the proposed amendments to the ICE Certificate, as described above. First, the NYSE proposes to use ``Exchanges'' in place of ``U.S. Regulated Subsidiaries,'' as in the proposed changes to the ICE Certificate. [[Page 18041]] Accordingly, it proposes to make the following changes: The definition of ``U.S. Regulated Subsidiary'' in Section 3.15 would be deleted and replaced with a definition of ``Exchange'' that is the same as the definition in the proposed amended ICE Certificate. In Section 3.14(a)(2), the text ``U.S. Regulated Subsidiaries, NYSE Group, Inc. (``NYSE Group'') (if and to the extent that NYSE Group continues to exist as a separate entity), NYSE Holdings LLC (``NYSE Holdings''), Intercontinental Exchange Holdings, Inc. (`ICE Holdings')'' would be replaced with ``Exchanges, any entity controlled by the Corporation that is not itself an Exchange but that directly or indirectly controls an Exchange (each such controlling entity, an `Intermediate Holding Company')''; and the text ``U.S. Regulated Subsidiaries, NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity), NYSE Holdings, ICE Holdings'' would be replaced with ``Exchanges, Intermediate Holding Companies.'' In Section 3.14(b)(3), the text ``the U.S. Regulated Subsidiaries'' and ``their'' would be replaced with ``each Exchange'' and ``its,'' respectively. In Article VII, ``the U.S. Regulated Subsidiaries'' would be replaced with ``any Exchange.'' In Sections 3.14(a)(1), 8.1, 8.2, 8.3(b), 8.4, 9.1, 9.2, 9.3 and 11.3, the text ``U.S. Regulated Subsidiary'' and ``of the U.S. Regulated Subsidiaries'' would be replaced with ``Exchange'' and the text ``U.S. Regulated Subsidiaries'' would be replaced with ``Exchanges.'' In Sections 8.2(b), 8.4, 9.1, and 9.3, the text ``the U.S. Regulated Subsidiaries'' and ``U.S. Regulated Subsidiaries'' would be replaced with ``an Exchange.'' In Section 9.3, the text ``the U.S. Regulated Subsidiaries'' would be replaced with ``each Exchange''; ``U.S. Regulated Subsidiary's'' would be replaced with ``Exchange's''; and ``their respective'' would be replaced with ``its.'' In Section 8.1, the text ``New York Stock Exchange LLC, NYSE Arca, Inc., NYSE Arca Equities, Inc., NYSE MKT LLC and NYSE National, Inc. or their successors'' would be replaced with ``any Exchange.'' Similarly, in Section 11.3, the text ``New York Stock Exchange LLC, NYSE Arca, Inc., NYSE Arca Equities, Inc., NYSE MKT LLC and NYSE National, Inc. or the boards of directors of their successors'' would be replaced with ``each Exchange.'' In Sections 8.1 and 8.2, the defined term ``U.S. Subsidiaries' Confidential Information'' would be replaced with ``Exchange Confidential Information,'' with the same meaning except limited to Exchanges. In Section 8.3(b), the text ``U.S. Regulated Subsidiary or any other U.S. Regulated Subsidiary over which such U.S. Regulated Subsidiary has regulatory authority or oversight'' would be replaced with ``Exchange.'' The proposed change would remove the current provision that allows any U.S. Regulated Subsidiary to inspect the books and records of another U.S. Regulated Subsidiary over which the first has regulatory authority or oversight. As a result, the ICE Bylaws would no longer provide that NYSE Arca may inspect the books and records of NYSE Arca Equities or NYSE Arca, LLC. However, the proposed change would have no substantive effect, because NYSE Arca would retain its authority pursuant to NYSE Arca Equities Rules 14.1 and 14.3.\25\ The national securities exchanges NYSE, NYSE MKT, NYSE Arca and NYSE National do not have regulatory authority or oversight over each other. --------------------------------------------------------------------------- \25\ NYSE Arca Equities Rule 14.1(b) provides, among other things, that the books and records of NYSE Arca Equities are subject to the oversight of the NYSE Arca pursuant to the Act, and that the books and records of NYSE Arca Equities shall be subject at all times to inspection and copying by NYSE Arca. NYSE Arca Equities Rule 14.3(a) provides, among other things, that the books and records of NYSE Arca, LLC are deemed to be the books and records of NYSE Arca and NYSE Arca Equities for purposes of and subject to oversight pursuant to the Exchange Act. See also CBOE Holdings, Inc. Certificate of Incorporation, Article Fifteenth (providing that the books and records of a Regulated Securities Exchange Subsidiary shall be subject at all times to inspection by such subsidiary). --------------------------------------------------------------------------- Article XII of the ICE Bylaws was added in connection with the acquisition of NYSE National, previously National Stock Exchange, Inc., in 2016.\26\ The Exchange proposes to delete Article XII of the ICE Bylaws in its entirety. Because the substance of Article XII would be addressed by the proposed amendments to the ICE Certificate, Article XII would no longer be necessary. Specifically, --------------------------------------------------------------------------- \26\ See Securities Exchange Act Releases No. 79902 (January 30, 2017) 82 FR 9258 (February 3, 2017) (SR-NSX-2016-16); and 79901 (January 30, 2017), 82 FR 9251 (February 3, 2017) (SR-NYSE-2016-90, SR-NYSEArca2016-167, SR-NYSEMKT-2016-122). --------------------------------------------------------------------------- the substance of Section 12.1(a)(1) of the ICE Bylaws would be addressed in revised Article V, Section A.3.(c)(ii) of the ICE Certificate; the substance of Section 12.1(a)(2) of the ICE Bylaws would be addressed in revised Article V, Section A.3.(d)(ii) of the ICE Certificate; the substance of Section 12.1(b) of the ICE Bylaws would be addressed in revised Article V, Section B.3.(d) of the ICE Certificate; and the substance of Section 12.2 of the ICE Bylaws would be addressed in revised Article X(B) of the ICE Certificate. Meetings of Stockholders In addition to the proposed changes corresponding to the proposed amendments to the ICE Certificate, the Exchange proposes to amend several sections of Article II (Meetings of Stockholders). The Exchange proposes to simplify Section 2.1 of the ICE Bylaws, which relates to the location of stockholder meetings. The revised provision would provide that, as is true now, the location, if any, as well as the decision to hold a stockholder meeting solely by remote communication, would be determined by the Board of Directors and stated in the notice of meeting. The proposed changes are as follow: The first sentence would be revised to remove the text ``for the election of directors'', ``in the City of Atlanta, State of Georgia,'' and ``as may be fixed from time to time by the Board of Directors, or at such other place.'' The text ``as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.'' would be deleted and ``or may'' would be added in its place. The second sentence would be deleted in its entirety. In the third sentence, the text ``The Board of Directors may, in its sole discretion, determine that any meeting of stockholders shall'' and ``as authorized by law'' would be deleted. The word ``solely'' would be added after ``instead be held'' and the text ``, in each case as may be designated by the Board of Directors from time to time and stated in the notice of meeting'' added to the end of the sentence. Section 2.7 relates to the quorum for stockholder meetings. The Exchange proposes to conform the quorum requirements in the ICE Bylaws to those in the ICE Certificate. To do so, it proposes to delete the first three sentences of Section 2.7 and replace it with the sentence ``Section B of Article IX of the certificate of incorporation sets forth the requirements for establishing a quorum at meetings of stockholders of the Corporation.'' Section 2.13(b) sets forth the advance notice requirements for stockholder proposals. The Exchange proposes to make the following changes to Section 2.13(b). In addition to stockholders of record, the ICE Bylaws permit certain beneficial holders (defined as ``Nominee Holders'') to nominate directors or bring [[Page 18042]] other matters for consideration before the Board of Directors meeting. The Exchange proposes to make simplifying wording changes in clause (iii) of the first sentence of Section 2.13(b), as follows: In clause (x), the text ``stockholder that holds of record stock of the Corporation'' would be amended so that it read [sic] ``stockholder of record.'' In clause (y), the following text would be deleted: ``holds such''; `` `street name' ''; ``of such stock and can demonstrate to''; ``indirect''; ``of, and such Nominee Holder's''; and the comma before ``such stock on such matter.'' The revised clause would read as follows: ``is a person (a `Nominee Holder') that beneficially owns stock of the Corporation through a nominee or other holder of record and provides the Corporation with proof of such beneficial ownership, including the entitlement to vote such stock on such matter.'' In the current third and fourth sentences of Section 2.13(b), the term ``indirect ownership'' would be changed to ``beneficial ownership'' for consistency. The Exchange proposes to add a new defined term, ``Proponent,'' to capture both stockholders and Nominee Holders. Accordingly: A new sentence would be added to Section 2.13(b)(iii) between the first and second sentences, stating that ``Stockholders and Nominee Holders who bring matters before the annual meeting pursuant to Section 2.13(b)(iii) are hereinafter referred to as `Proponents'.'' Throughout Section 2.13(b), ``stockholder,'' ``stockholders'' and ``stockholder's'' would be replaced with ``Proponent,'' ``Proponents'' and ``Proponent's,'' respectively. Throughout Section 2.13(b), ``Proponent'' would replace the phrases ``stockholder or beneficial owner,'' ``stockholder, by such beneficial owner,'' ``stockholder, such beneficial owner,'' ``stockholder and by such beneficial owner, if any,'' and ``stockholder or any beneficial owner on whose behalf a nomination or nominations are being made or business or matter is being proposed.'' The word ``Proponent's'' would replace the phrase ``stockholder's or such beneficial owner's.'' Presently, the requirement for disclosing share ownership appears three times: In the current third sentence, which sets forth the provisions for stockholder notices relating to director nominations, the current fourth sentence, which sets forth the provisions for stockholder notices relating to other matters, and the current fifth sentence, which sets forth the information that a shareholder must include in any stockholder notice. Rather than keep the duplication, Exchange proposes to remove the requirement from the third and fourth sentences and retain the requirement in clause (i) of the fifth sentence. Accordingly, the text ``, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such stockholder'' would be deleted from the current third and fourth sentences. In the current fourth sentence, the requirement that a stockholder notice include information regarding any material interest in the matter proposed ``(other than as a stockholder)'' would be clarified by adding ``or beneficial owner of stock'' after ``stockholder'' within the parenthetical, because a Proponent who is a nominee holder is not a stockholder. In clause (i) of the current fifth sentence, the text ``such Proponent or'' would be added before ``any Associated Person.'' Clause (i) of the current sixth sentence sets forth the meaning of ``Associated Person.'' The Exchange proposes to narrow the text to eliminate all beneficial owners of stock held of record or beneficially by the Proponent from the definition, and instead to cover only those beneficial owners on whose behalf the stockholder notice is being delivered. Accordingly, the Exchange proposes to replace the text ``stockholder or any beneficial owner on whose behalf a nomination or nominations are being made or business or matter is being proposed,'' with ``Proponent'' and, in clause (i)(x), replace the text ``owned of record or beneficially by such stockholder or by such beneficial owner'' with ``on whose behalf such Proponent is delivering a Stockholder Notice.'' Additional Proposed Changes In addition to the changes proposed above, the Exchange proposes to amend several additional sections of the ICE Bylaws. The ICE Bylaws refer to a ``Vice Chairman of the Board.'' However, the Board of Directors of ICE has not had a Vice Chairman since the sale of the Euronext business in 2014. Accordingly, in Sections 2.9, 3.6(b) and 3.8, the Exchange proposes to replace ``Vice Chairman of the Board'' with ``lead independent director.'' As a result, the lead independent director would preside over meetings of stockholders in the absence of the Chairman of the Board (Section 2.9), have the authority to call a special meeting of the Board of Directors (Section 3.6(b)) and would preside over meetings of the Board of Directors in the absence of the Chairman of the Board (Section 3.8). In Section 3.12, relating to the conduct of meetings of committees of the Board of Directors of ICE, a reference to ``Article II of these Bylaws'' would be corrected to read ``this Article III of these Bylaws.'' Section 3.14 sets forth considerations directors must take into account in discharging their responsibilities as members of the board of directors. The Exchange proposes to amend the last sentence of Section 3.14(c), which limits claims against directors, officers and employees of ICE and against ICE. The revised text would be expanded in scope to apply to any ``past or present stockholder, employee, beneficiary, agent, customer, creditor, community or regulatory authority or member thereof or other person or entity,'' and to protect agents of ICE as well as directors, officers and employees. These changes would conform the provision to the analogous statement in the governing documents of other holding companies of national securities exchanges, which are substantially similar.\27\ --------------------------------------------------------------------------- \27\ See Amended and Restated Bylaws of Bats Global Markets, Inc., Article XII, Section 12.01; Amended and Restated Limited Liability Company Agreement of BOX Holdings Group LLC, Article 4, Section 4.12; Bylaws of IEX Group, Inc., Section 34; and Amended and Restated Bylaws of Miami International Holdings, Inc., Article VII, Section 1. --------------------------------------------------------------------------- Finally, conforming changes would be made to the title and date of the ICE Bylaws. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act \28\ in general, and with Section 6(b)(1) \29\ 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. --------------------------------------------------------------------------- \28\ 15 U.S.C. 78f(b). \29\ 15 U.S.C. 78f(b)(1). --------------------------------------------------------------------------- In particular, the Exchange believes that the proposed amendments to replace references to the U.S. Regulated Subsidiaries and to the NYSE, NYSE MKT, NYSE Arca, NYSE Arca Equities and NYSE Arca, LLC with references to an ``Exchange'' or the ``Exchanges,'' as appropriate, would contribute to the orderly operation of the Exchange by [[Page 18043]] adding clarity and transparency to the Exchange's rules by eliminating references to entities that are not national securities exchanges in the ICE Certificate and ICE Bylaws. The Exchange Act definition of ``exchange'' states that ``exchange'' ``includes the market place and the market facilities maintained by such exchange.'' \30\ Accordingly, all market places and market facilities maintained by an Exchange would fall within the definition of Exchange and therefore would fall within the scope of the ICE Certificate and ICE Bylaws. The Exchange notes that the proposed change would align Article V of the ICE Certificate with voting and ownership concentration limits in the certificates of incorporation of other publicly traded companies that own one or more national securities exchanges, which do not include references to subsidiaries other than national securities exchanges.\31\ NYSE Arca, as the national securities exchange, would retain the regulatory and self-regulatory responsibility for the NYSE Arca options and equities markets. --------------------------------------------------------------------------- \30\ 15 U.S.C. 78c(a)(1). \31\ See note 11, supra. --------------------------------------------------------------------------- Similarly, as a result of the proposed use of ``Exchanges'' instead of ``U.S. Regulated Subsidiaries,'' ICE Bylaws Section 8.3 would no longer provide that any U.S. Regulated Subsidiary is authorized to inspect the books and records of another U.S. Regulated Subsidiary over which the first has regulatory authority or oversight, adding further clarity and transparency to the Exchange's rules.\32\ --------------------------------------------------------------------------- \32\ As noted above, the ICE Bylaws would no longer provide that NYSE Arca may inspect the books and records of NYSE Arca Equities or NYSE Arca, LLC. However, the proposed change would have no substantive effect, because NYSE Arca would retain its authority pursuant to NYSE Arca Equities Rules 14.1 and 14.3. NYSE, NYSE MKT, NYSE Arca and NYSE National do not have regulatory authority or oversight over each other, and so the proposed change would have no effect on those entities' rights. --------------------------------------------------------------------------- Further, the proposed use of the defined term ``Member'' in place of the lists of categories of members and permit holders in Article V of the ICE Certificate would simplify the provisions without substantive change, thereby further adding clarity and transparency to the Exchange's rules and aligning the provision in the ICE Certificate with the voting and ownership concentration limits in the certificates of incorporation of other publicly traded companies that own one or more national securities exchanges, which use a similar description of membership.\33\ Similarly, the proposed use of the defined term ``Intermediate Holding Company'' in place of the list of intermediate holding companies in Article V of the ICE Certificate and Section 3.14 of the ICE Bylaws would simplify the provisions without substantive change, thereby further adding clarity and transparency to the Exchange's rules. --------------------------------------------------------------------------- \33\ See note 20, supra. --------------------------------------------------------------------------- For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act \34\ because the proposed rule change would be consistent with and would 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. --------------------------------------------------------------------------- \34\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- Specifically, the proposed amendments (1) replacing references to the U.S. Regulated Subsidiaries and to the NYSE, NYSE MKT, NYSE Arca, NYSE Arca Equities and NYSE Arca, LLC with references to an ``Exchange'' or the ``Exchanges,'' as appropriate; (2) using ``Member'' in place of the lists of categories of members and permit holders in Article V of the ICE Certificate; (3) using ``Intermediate Holding Company'' in place of the list of intermediate holding companies in Article V of the ICE Certificate and Section 3.14 of the ICE Bylaws; and (4) removing the ability of a U.S. Regulated Subsidiary to inspect the books and records of other U.S. Regulated Subsidiaries in ICE Bylaws Section 8.3 would remove impediments to and perfect the mechanism of a free and open market by simplifying and streamlining the Exchange's rules, thereby ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the ICE governing documents. The Exchange believes that the proposed amendments to the last sentence of Section 3.14(c) of the ICE Bylaws, which limits claims against directors, officers and employees of ICE and against ICE, would remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the proposed changes would conform the provision to the analogous statement in the governing documents of other holding companies of national securities exchanges, which are substantially similar.\35\ --------------------------------------------------------------------------- \35\ See Amended and Restated Bylaws of Bats Global Markets, Inc., Article XII, Section 12.01; Amended and Restated Limited Liability Company Agreement of BOX Holdings Group LLC, Article 4, Section 4.12; Bylaws of IEX Group, Inc., Section 34; and Amended and Restated Bylaws of Miami International Holdings, Inc., Article VII, Section 1. --------------------------------------------------------------------------- The Exchange believes that the proposed amendments to remove references to NYSE Market, NYSE Regulation and the Vice Chairman and to remove the cross reference to Section 11.2(b) of the ICE Bylaws from Article X of the ICE Certificate would remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the changes would eliminate obsolete references, thereby reducing potential confusion. Market participants and investors would not be harmed and in fact could benefit from the increased clarity and transparency in the ICE Certificate and ICE Bylaws. Such increased clarity and transparency would ensure that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the ICE governing documents. The Exchange believes that the proposed amendments to Article II of the ICE Bylaws, regarding meetings of stockholders, would also remove impediments to, and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the changes would increase the clarity of the relevant sections of Article II, thereby reducing potential confusion. Market participants and investors would not be harmed and in fact could benefit from the increased clarity and transparency regarding the location of stockholder meetings and advance notice requirements, and the conformance of the quorum requirements with those in the ICE Certificate, and so would more easily navigate and understand the ICE Bylaws. 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 designed to address any competitive issue but rather update and streamline [[Page 18044]] the ICE Certificate and Bylaws, delete obsolete or unnecessary references and make other simplifying or clarifying changes to the ICE governing documents. The Exchange believes that the proposed rule change will serve to promote clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The proposed rule change would result in no concentration or other changes of ownership of exchanges. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action 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, as modified by Amendment No. 1, 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-2017-13 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-2017-13. 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-2017-13 and should be submitted on or before May 5, 2017. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\36\ --------------------------------------------------------------------------- \36\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017-07533 Filed 4-13-17; 8:45 am] BILLING CODE 8011-01-P
![18038 Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices
Internet Web site (http://www.sec.gov/ Items I, II, and III below, which Items A. Self-Regulatory Organization’s
rules/sro.shtml). Copies of the have been prepared by the self- Statement of the Purpose of, and the
submission, all subsequent regulatory organization. On April 6, Statutory Basis for, the Proposed Rule
amendments, all written statements 2017, the Exchange filed Amendment Change
with respect to the proposed rule No. 1 to the proposal.4 The Commission
change that are filed with the 1. Purpose
is publishing this notice to solicit
Commission, and all written comments on the proposed rule change, The Exchange proposes to amend
communications relating to the as modified by Amendment No. 1, from ICE’s Third Amended and Restated
proposed rule change between the Certificate of Incorporation (the ‘‘ICE
interested persons.
Commission and any person, other than Certificate’’) and Seventh Amended and
those that may be withheld from the I. Self-Regulatory Organization’s Restated Bylaws (the ‘‘ICE Bylaws’’) to
public in accordance with the Statement of the Terms of Substance of (1) update and streamline references to
provisions of 5 U.S.C. 552, will be the Proposed Rule Change ICE subsidiaries that either are or
available for Web site viewing and control national securities exchanges
printing in the Commission’s Public The Exchange proposes to amend the and delete references to other
Reference Room, 100 F Street NE., certificate of incorporation and bylaws subsidiaries of ICE; (2) eliminate an
Washington, DC 20549 on official of its ultimate parent company, obsolete cross-reference in the ICE
business days between the hours of Intercontinental Exchange, Inc. (‘‘ICE’’), Certificate to the ICE Bylaws and make
10:00 a.m. and 3:00 p.m. Copies of the to (1) update and streamline references a technical correction to a cross-
filing also will be available for to ICE subsidiaries that either are or reference within the ICE Bylaws; (3)
inspection and copying at the principal control national securities exchanges make certain simplifying or clarifying
office of the Exchange. All comments and delete references to other changes in the ICE Bylaws relating to
received will be posted without change; subsidiaries of ICE; (2) eliminate an the location of stockholder meetings,
the Commission does not edit personal obsolete cross-reference in ICE’s quorum requirements, and requirements
identifying information from certificate of incorporation to its bylaws applicable to persons entitled to
submissions. You should submit only and make a technical correction to a nominate directors or make proposals at
information that you wish to make cross-reference within the bylaws; (3) a meeting of ICE’s stockholders; and (4)
available publicly. All submissions replace obsolete references in the ICE
make certain simplifying or clarifying
should refer to File Number SR– Bylaws to the Vice Chair with references
NYSEARCA–2017–29 and should be changes in ICE’s bylaws relating to the
to the lead independent director.
submitted on or before May 5, 2017. location of stockholder meetings,
ICE owns 100% of the equity interest
quorum requirements, and requirements in Intercontinental Exchange Holdings,
For the Commission, by the Division of
applicable to persons entitled to Inc. (‘‘ICE Holdings’’), which in turn
Trading and Markets, pursuant to delegated
authority.36 nominate directors or make proposals at owns 100% of the equity interest in
Eduardo A. Aleman, a meeting of ICE’s stockholders; and (4) NYSE Holdings LLC (‘‘NYSE
Assistant Secretary. replace obsolete references in the Holdings’’). NYSE Holdings owns 100%
[FR Doc. 2017–07531 Filed 4–13–17; 8:45 am]
bylaws to the Vice Chair with references of the equity interest of NYSE Group,
to the lead independent director. The Inc. (‘‘NYSE Group’’), which in turn
BILLING CODE 8011–01–P
proposed rule change is available on the directly owns 100% of the equity
Exchange’s Web site at www.nyse.com, interest of the Exchange and its national
SECURITIES AND EXCHANGE at the principal office of the Exchange, securities exchange affiliates, NYSE
COMMISSION and at the Commission’s Public Arca, Inc. (‘‘NYSE Arca’’), NYSE MKT
Reference Room. LLC (‘‘NYSE MKT’’) and NYSE
[Release No. 34–80420; File No. SR–NYSE–
2017–13]
National, Inc. (‘‘NYSE National’’).5
II. Self-Regulatory Organization’s
Statement of the Purpose of, and ICE Certificate
Self-Regulatory Organizations; New
Statutory Basis for, the Proposed Rule The Exchange proposes to amend the
York Stock Exchange LLC; Notice of
Change limitations on voting and ownership in
Filing of Proposed Rule Change, as
Modified by Amendment No. 1 Thereto, Article V of the ICE Certificate to update
In its filing with the Commission, the and streamline references to ICE
Amending the Certificate of self-regulatory organization included
Incorporation and Bylaws of Its subsidiaries that are national securities
statements concerning the purpose of, exchanges or that control national
Ultimate Parent Company, and basis for, the proposed rule change
Intercontinental Exchange, Inc. securities exchanges, as well as to delete
and discussed any comments it received references to other subsidiaries of ICE.
April 10, 2017. on the proposed rule change. The text In addition, it proposes to revise the
Pursuant to Section 19(b)(1) 1 of the of those statements may be examined at amendment provision in Article X of the
Securities Exchange Act of 1934 (the the places specified in Item IV below. ICE Certificate to remove an obsolete
‘‘Act’’) 2 and Rule 19b–4 thereunder,3 The Exchange has prepared summaries, reference.
notice is hereby given that, on March set forth in sections A, B, and C below,
28, 2017, New York Stock Exchange Limitations on Voting and Ownership
of the most significant parts of such
LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed statements. Article V of the ICE Certificate
sradovich on DSK3GMQ082PROD with NOTICES
with the Securities and Exchange establishes voting limitations and
Commission (the ‘‘Commission’’) the
5 ICE is a publicly traded company listed on the
proposed rule change as described in
Exchange. The Exchange’s affiliates NYSE MKT,
36 17
NYSE Arca, and NYSE National have each
CFR 200.30–3(a)(12). 4 Amendment No. 1 clarifies that the word
submitted substantially the same proposed rule
1 15 U.S.C.78s(b)(1). ‘‘indirect’’ is proposed to be deleted from clause change to propose the changes described herein.
2 15 U.S.C. 78a. (iii)(y) of the first sentence of Section 2.13(b) of See SR–NYSEMKT–2017–17, SR–NYSEArca–2017–
3 17 CFR 240.19b–4. ICE’s bylaws. 29, and SR–NYSENAT–2017–01.
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![18042 Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices
other matters for consideration before relating to other matters, and the current to call a special meeting of the Board of
the Board of Directors meeting. The fifth sentence, which sets forth the Directors (Section 3.6(b)) and would
Exchange proposes to make simplifying information that a shareholder must preside over meetings of the Board of
wording changes in clause (iii) of the include in any stockholder notice. Directors in the absence of the Chairman
first sentence of Section 2.13(b), as Rather than keep the duplication, of the Board (Section 3.8).
follows: Exchange proposes to remove the In Section 3.12, relating to the
• In clause (x), the text ‘‘stockholder requirement from the third and fourth conduct of meetings of committees of
that holds of record stock of the sentences and retain the requirement in the Board of Directors of ICE, a reference
Corporation’’ would be amended so that clause (i) of the fifth sentence. to ‘‘Article II of these Bylaws’’ would be
it read [sic] ‘‘stockholder of record.’’ Accordingly, the text ‘‘, the number and corrected to read ‘‘this Article III of
• In clause (y), the following text class of all shares of each class of stock these Bylaws.’’
would be deleted: ‘‘holds such’’; ‘‘ ‘street of the Corporation owned of record and Section 3.14 sets forth considerations
name’ ’’; ‘‘of such stock and can beneficially by such stockholder’’ would directors must take into account in
demonstrate to’’; ‘‘indirect’’; ‘‘of, and be deleted from the current third and discharging their responsibilities as
such Nominee Holder’s’’; and the fourth sentences. members of the board of directors. The
comma before ‘‘such stock on such • In the current fourth sentence, the Exchange proposes to amend the last
matter.’’ The revised clause would read requirement that a stockholder notice sentence of Section 3.14(c), which limits
as follows: ‘‘is a person (a ‘Nominee include information regarding any claims against directors, officers and
Holder’) that beneficially owns stock of material interest in the matter proposed employees of ICE and against ICE. The
the Corporation through a nominee or ‘‘(other than as a stockholder)’’ would revised text would be expanded in
other holder of record and provides the be clarified by adding ‘‘or beneficial scope to apply to any ‘‘past or present
Corporation with proof of such owner of stock’’ after ‘‘stockholder’’ stockholder, employee, beneficiary,
beneficial ownership, including the within the parenthetical, because a agent, customer, creditor, community or
entitlement to vote such stock on such Proponent who is a nominee holder is regulatory authority or member thereof
matter.’’ not a stockholder. or other person or entity,’’ and to protect
• In the current third and fourth • In clause (i) of the current fifth agents of ICE as well as directors,
sentences of Section 2.13(b), the term sentence, the text ‘‘such Proponent or’’ officers and employees. These changes
‘‘indirect ownership’’ would be changed would be added before ‘‘any Associated would conform the provision to the
to ‘‘beneficial ownership’’ for Person.’’ analogous statement in the governing
consistency. • Clause (i) of the current sixth documents of other holding companies
• The Exchange proposes to add a sentence sets forth the meaning of of national securities exchanges, which
new defined term, ‘‘Proponent,’’ to ‘‘Associated Person.’’ The Exchange are substantially similar.27
capture both stockholders and Nominee proposes to narrow the text to eliminate Finally, conforming changes would be
Holders. Accordingly: all beneficial owners of stock held of made to the title and date of the ICE
• A new sentence would be added to record or beneficially by the Proponent Bylaws.
Section 2.13(b)(iii) between the first and from the definition, and instead to cover
second sentences, stating that only those beneficial owners on whose 2. Statutory Basis
‘‘Stockholders and Nominee Holders behalf the stockholder notice is being The Exchange believes that the
who bring matters before the annual delivered. Accordingly, the Exchange proposed rule change is consistent with
meeting pursuant to Section 2.13(b)(iii) proposes to replace the text Section 6(b) of the Exchange Act 28 in
are hereinafter referred to as ‘‘stockholder or any beneficial owner on general, and with Section 6(b)(1) 29 in
‘Proponents’.’’ whose behalf a nomination or particular, in that it enables the
• Throughout Section 2.13(b), nominations are being made or business Exchange to be so organized as to have
‘‘stockholder,’’ ‘‘stockholders’’ and or matter is being proposed,’’ with the capacity to be able to carry out the
‘‘stockholder’s’’ would be replaced with ‘‘Proponent’’ and, in clause (i)(x), purposes of the Exchange Act and to
‘‘Proponent,’’ ‘‘Proponents’’ and replace the text ‘‘owned of record or comply, and to enforce compliance by
‘‘Proponent’s,’’ respectively. beneficially by such stockholder or by its exchange members and persons
• Throughout Section 2.13(b), such beneficial owner’’ with ‘‘on whose associated with its exchange members,
‘‘Proponent’’ would replace the phrases behalf such Proponent is delivering a with the provisions of the Exchange Act,
‘‘stockholder or beneficial owner,’’ Stockholder Notice.’’ the rules and regulations thereunder,
‘‘stockholder, by such beneficial and the rules of the Exchange.
owner,’’ ‘‘stockholder, such beneficial Additional Proposed Changes
In particular, the Exchange believes
owner,’’ ‘‘stockholder and by such In addition to the changes proposed that the proposed amendments to
beneficial owner, if any,’’ and above, the Exchange proposes to amend replace references to the U.S. Regulated
‘‘stockholder or any beneficial owner on several additional sections of the ICE Subsidiaries and to the NYSE, NYSE
whose behalf a nomination or Bylaws. MKT, NYSE Arca, NYSE Arca Equities
nominations are being made or business The ICE Bylaws refer to a ‘‘Vice
and NYSE Arca, LLC with references to
or matter is being proposed.’’ The word Chairman of the Board.’’ However, the
an ‘‘Exchange’’ or the ‘‘Exchanges,’’ as
‘‘Proponent’s’’ would replace the phrase Board of Directors of ICE has not had a
appropriate, would contribute to the
‘‘stockholder’s or such beneficial Vice Chairman since the sale of the
orderly operation of the Exchange by
owner’s.’’ Euronext business in 2014. Accordingly,
• Presently, the requirement for in Sections 2.9, 3.6(b) and 3.8, the
sradovich on DSK3GMQ082PROD with NOTICES
27 See Amended and Restated Bylaws of Bats
disclosing share ownership appears Exchange proposes to replace ‘‘Vice Global Markets, Inc., Article XII, Section 12.01;
three times: In the current third Chairman of the Board’’ with ‘‘lead Amended and Restated Limited Liability Company
sentence, which sets forth the independent director.’’ As a result, the Agreement of BOX Holdings Group LLC, Article 4,
Section 4.12; Bylaws of IEX Group, Inc., Section 34;
provisions for stockholder notices lead independent director would and Amended and Restated Bylaws of Miami
relating to director nominations, the preside over meetings of stockholders in International Holdings, Inc., Article VII, Section 1.
current fourth sentence, which sets forth the absence of the Chairman of the 28 15 U.S.C. 78f(b).
the provisions for stockholder notices Board (Section 2.9), have the authority 29 15 U.S.C. 78f(b)(1).
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![18044 Federal Register / Vol. 82, No. 71 / Friday, April 14, 2017 / Notices
the ICE Certificate and Bylaws, delete only one method. The Commission will III below, which Items have been
obsolete or unnecessary references and post all comments on the Commission’s prepared by the Exchange. The
make other simplifying or clarifying Internet Web site (http://www.sec.gov/ Commission is publishing this notice to
changes to the ICE governing rules/sro.shtml). Copies of the solicit comments on the proposed rule
documents. The Exchange believes that submission, all subsequent change from interested persons.
the proposed rule change will serve to amendments, all written statements
with respect to the proposed rule I. Self-Regulatory Organization’s
promote clarity and consistency,
change that are filed with the Statement of the Terms of Substance of
thereby reducing burdens on the
Commission, and all written the Proposed Rule Change
marketplace and facilitating investor
protection. The proposed rule change communications relating to the The Exchange proposes to eliminate
would result in no concentration or proposed rule change between the obsolete references in the Fees
other changes of ownership of Commission and any person, other than Schedule. The text of the proposed rule
exchanges. those that may be withheld from the change is available on the Exchange’s
public in accordance with the Web site (http://www.cboe.com/
C. Self-Regulatory Organization’s provisions of 5 U.S.C. 552, will be AboutCBOE/
Statement on Comments on the available for Web site viewing and CBOELegalRegulatoryHome.aspx), at
Proposed Rule Change Received From printing in the Commission’s Public the Exchange’s Office of the Secretary,
Members, Participants, or Others Reference Room, 100 F Street NE., and at the Commission’s Public
No written comments were solicited Washington, DC 20549 on official Reference Room.
or received with respect to the proposed business days between the hours of
rule change. 10:00 a.m. and 3:00 p.m. Copies of the II. Self-Regulatory Organization’s
filing also will be available for Statement of the Purpose of, and
III. Date of Effectiveness of the inspection and copying at the principal Statutory Basis for, the Proposed Rule
Proposed Rule Change and Timing for office of the Exchange. All comments Change
Commission Action received will be posted without change; In its filing with the Commission, the
Within 45 days of the date of the Commission does not edit personal Exchange included statements
publication of this notice in the Federal identifying information from concerning the purpose of and basis for
Register or up to 90 days (i) as the submissions. You should submit only the proposed rule change and discussed
Commission may designate if it finds information that you wish to make any comments it received on the
such longer period to be appropriate available publicly. All submissions proposed rule change. The text of these
and publishes its reasons for so finding should refer to File Number SR–NYSE– statements may be examined at the
or (ii) as to which the self-regulatory 2017–13 and should be submitted on or places specified in Item IV below. The
organization consents, the Commission before May 5, 2017. Exchange has prepared summaries, set
will: For the Commission, by the Division of forth in sections A, B, and C below, of
(A) By order approve or disapprove Trading and Markets, pursuant to delegated the most significant aspects of such
the proposed rule change, or authority.36 statements.
(B) institute proceedings to determine Eduardo A. Aleman,
whether the proposed rule change A. Self-Regulatory Organization’s
Assistant Secretary.
should be disapproved. Statement of the Purpose of, and
[FR Doc. 2017–07533 Filed 4–13–17; 8:45 am] Statutory Basis for, the Proposed Rule
IV. Solicitation of Comments BILLING CODE 8011–01–P Change
Interested persons are invited to 1. Purpose
submit written data, views, and
SECURITIES AND EXCHANGE The Exchange proposes to amend its
arguments concerning the foregoing,
COMMISSION Fees Schedule. Specifically, the
including whether the proposed rule
change, as modified by Amendment No. [Release No. 34–80422; File No SR–CBOE– Exchange proposes to eliminate
1, is consistent with the Act. Comments 2017–023] references to (i) mini-options, (ii) SPX
may be submitted by any of the Range Options (‘‘SROs’’), (iii) Floor
following methods: Self-Regulatory Organizations; Broker Workstation (‘‘FBW’’) and (iv)
Chicago Board Options Exchange, Livevol X (‘‘LVX’’) Fees.
Electronic Comments Incorporated; Notice of Filing and First, the Exchange notes it no longer
• Use the Commission’s Internet Immediate Effectiveness of a Proposed lists mini-options or SROs. As such, the
comment form (http://www.sec.gov/ Rule Change To Eliminate Obsolete Exchange proposes to delete from the
rules/sro.shtml); or References in the Fees Schedule Fees Schedule references to mini-
• Send an email to rule-comments@ April 10, 2017. options and SROs, as such references
sec.gov. Please include File Number SR– Pursuant to Section 19(b)(1) of the are no longer necessary and obsolete.
NYSE–2017–13 on the subject line. Securities Exchange Act of 1934 (the Next, the Exchange proposes to
‘‘Act’’),1 and Rule 19b–4 thereunder,2 eliminate all references to FBW in the
Paper Comments
notice is hereby given that on April 3, Fees Schedule. The Exchange no longer
• Send paper comments in triplicate 2017, Chicago Board Options Exchange, offers FBW. As such, all references to
to Secretary, Securities and Exchange Incorporated (the ‘‘Exchange’’ or FBW will be eliminated from the Fees
Commission, 100 F Street NE., Schedule as it is unnecessary to
sradovich on DSK3GMQ082PROD with NOTICES
‘‘CBOE’’) filed with the Securities and
Washington, DC 20549–1090. Exchange Commission (the maintain and is now obsolete.
All submissions should refer to File ‘‘Commission’’) the proposed rule Lastly, the Exchange proposes to
Number SR–NYSE–2017–13. This file change as described in Items I, II, and eliminate the Livevol X (LVX) section of
number should be included on the the Livevol Fees table. The Exchange
subject line if email is used. To help the 36 17 CFR 200.30–3(a)(12). notes that LVX has been sold to another
Commission process and review your 1 15 U.S.C. 78s(b)(1). party and as such it will no longer
comments more efficiently, please use 2 17 CFR 240.19b–4. assesses any LVX related fees. The
VerDate Sep<11>2014 16:21 Apr 13, 2017 Jkt 241001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\14APN1.SGM 14APN1](https://thefederalregister.org/doc/82_FR_18109/page/7.svg)
Document Created: 2017-04-14 00:56:28
Document Modified: 2017-04-14 00:56:28
| 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 | 82 FR 18038 |
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