82 FR 55474 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Governing Documents of Its Intermediate Parent Companies Intercontinental Exchange Holdings, Inc., NYSE Holdings LLC and NYSE Group, Inc. To Make Them More Consistent With the Governing Documents of Their Ultimate Parent Intercontinental Exchange, Inc.
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 82, Issue 223 (November 21, 2017)
Federal Register Volume 82, Issue 223 (November 21, 2017)
| Page Range | 55474-55480 | |
| FR Document | 2017-25138 |
[Federal Register Volume 82, Number 223 (Tuesday, November 21, 2017)] [Notices] [Pages 55474-55480] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-25138] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-82081; File No. SR-NYSE-2017-57] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Governing Documents of Its Intermediate Parent Companies Intercontinental Exchange Holdings, Inc., NYSE Holdings LLC and NYSE Group, Inc. To Make Them More Consistent With the Governing Documents of Their Ultimate Parent Intercontinental Exchange, Inc. November 15, 2017. Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 1934 (the ``Act'' or ``Exchange Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given that on November 2, 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 and II 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 to amend the governing documents of its intermediate parent companies Intercontinental Exchange Holdings, Inc. (``ICE Holdings''), NYSE Holdings LLC (``NYSE Holdings''), and NYSE Group, Inc. (``NYSE Group'') to make them more consistent with the governing documents of their ultimate parent Intercontinental Exchange, Inc. (``ICE''), including by (a) streamlining references to ICE subsidiaries that either are or control national securities exchanges and deleting references to other ICE subsidiaries; and (b) amending the provisions regarding limitations on claims, voting and ownership concentration limitations, and confidential information. In addition, the Exchange proposes to make a non-substantive change to the ICE certificate of incorporation. 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 the governing documents of its intermediate parent companies ICE Holdings, NYSE Holdings, and NYSE Group (together, the ``Intermediate Holding Companies'') to make them more consistent with the ICE governing documents, including by (a) streamlining references to ICE subsidiaries that either are or control national securities exchanges and deleting references to other ICE subsidiaries; and (b) amending the provisions regarding limitations on claims, voting and ownership concentration limitations, and confidential information. In addition, the Exchange proposes to make a non-substantive change to the ICE certificate of incorporation. More specifically, the Exchange proposes to amend the following documents (collectively, the ``Governing Documents''):Eighth Amended and Restated Certificate of Incorporation of ICE Holdings (``ICE Holdings Certificate'') and Fifth Amended and Restated Bylaws of ICE Holdings (``ICE Holdings Bylaws''); Eighth Amended and Restated Limited Liability Company Agreement of NYSE Holdings (``NYSE Holdings Operating Agreement''); and Fifth Amended and Restated Certificate of Incorporation of NYSE Group (``NYSE Group Certificate'') and Third Amended and Restated Bylaws of NYSE Group (``NYSE Group Bylaws''). As discussed below, the proposed changes to the Governing Documents would make the relevant provisions more consistent with the Fourth Amended and Restated Certificate of Incorporation of ICE (``ICE Certificate'') [[Page 55475]] and Eighth Amended and Restated Bylaws of ICE (``ICE Bylaws'').\4\ --------------------------------------------------------------------------- \4\ See Securities Exchange Act Release No. 80752 (May 24, 2017), 82 FR 25018 (May 31, 2017) (SR-NYSE-2017-13; SR-NYSEArca- 2017-29; SR- NYSEMKT-2017-17; SR-NYSENAT-2017-01). ICE is a publicly traded company listed on the NYSE. --------------------------------------------------------------------------- ICE, the ultimate parent of the Exchange, owns 100% of the equity interest in ICE Holdings, which in turn owns 100% of the equity interest in NYSE Holdings. NYSE Holdings owns 100% of the equity interest of 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 American LLC (``NYSE American'') and NYSE National, Inc. (``NYSE National'').\5\ --------------------------------------------------------------------------- \5\ The Exchange's affiliates NYSE American (previously NYSE MKT LLC), NYSE Arca, and NYSE National have each submitted substantially the same proposed rule change to propose the changes described herein. See SR-NYSEAmer-2017-29, SR-NYSEArca-2017-125, and SR- NYSENAT-2017-05. --------------------------------------------------------------------------- In addition, the Exchange proposes to make a nonsubstantive change to the ICE Certificate. Definition of Exchange With the exception of the NYSE Group Bylaws, the Governing Documents define ``U.S. Regulated Subsidiary'' and ``U.S. Regulated Subsidiaries'' and, in the case of the NYSE Group Certificate, ``Regulated Subsidiary'' and ``Regulated Subsidiaries'' to mean, individually or collectively, the four national securities exchanges owned by ICE (the NYSE, NYSE American, NYSE Arca, 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 the relevant Intermediate Holding Company. The NYSE Group Bylaws list the relevant entities rather than use a defined term. Unlike the Governing Documents, the ICE Certificate and ICE Bylaws use the defined term ``Exchange'' or ``Exchanges'' instead of ``U.S. Regulated Subsidiary'' or ``U.S. Regulated Subsidiaries.'' \6\ ``Exchange'' is defined as a national securities exchange registered under Section 6 of the Exchange Act \7\ that is directly or indirectly controlled by ICE.\8\ The Exchange proposes to amend the Governing Documents to be consistent with the ICE Certificate and ICE Bylaws by using the terms ``Exchange'' instead of ``U.S. Regulated Subsidiary'' or ``Regulated Subsidiary.'' Similarly, the Exchange proposes to use ``Exchange'' or ``Exchanges,'' as applicable, in place of ``U.S. Regulated Subsidiaries'' or ``Regulated Subsidiaries,'' and to use ``Exchange'' or ``Exchanges,'' as applicable, instead of lists of specific entities. --------------------------------------------------------------------------- \6\ See 82 FR 25018, supra note 4, at 25019-25020. \7\ 15 U.S.C. 78f. \8\ See ICE Certificate, Art. V Sec. A(3)(a), and ICE Bylaws, Art. III, Sec. 3.15. --------------------------------------------------------------------------- As a result of the proposed change, the Governing Documents would no longer include references to NYSE Arca, LLC or NYSE Arca Equities. The Exchange believes omitting references to NYSE Arca, LLC, a subsidiary of NYSE Group, 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\ NYSE Arca, as the national securities exchange, has the regulatory and self-regulatory responsibility for the NYSE Arca options and equities markets. The references to NYSE Arca Equities are obsolete, as it has been merged out of existence.\10\ --------------------------------------------------------------------------- \9\ 15 U.S.C. 78c(a)(1). \10\ See Securities Exchange Act Release No. 81419 (August 17, 2017), 82 FR 40044 (August 23, 2017) (SR-NYSEArca-2017-40). --------------------------------------------------------------------------- The Exchange accordingly proposes the following changes: In the ICE Holdings Certificate, the definitions of ``U.S. Regulated Subsidiary'' and ``U.S. Regulated Subsidiaries'' in Article V, Section A.10 would be deleted, and the definition of ``Exchange'' added to Article V, Section A(1).\11\ In the ICE Holdings Bylaws, the definitions of ``U.S. Regulated Subsidiary'' and ``U.S. Regulated Subsidiaries'' in Article III, Section 3.15 would be deleted, and in the NYSE Group Certificate, the definitions of ``Regulated Subsidiary'' and ``Regulated Subsidiaries'' in Article IV, Section 4(b)(1)(A) would be deleted, and the definition of ``Exchange'' added in the deleted definitions' place. --------------------------------------------------------------------------- \11\ The definition of ``Exchange'' would replace ``any U.S. Regulated Subsidiary (as defined below)'' in Art. V, Sec. A(1). --------------------------------------------------------------------------- In Article 1, Section 1.1 of the NYSE Holdings Operating Agreement, the definitions of ``New York Stock Exchange,'' ``NYSE Arca,'' ``NYSE Arca Equities,'' ``NYSE MKT,'' ``NYSE National,'' ``U.S. Regulated Subsidiary,'' and ``U.S. Regulated Subsidiaries'' would be deleted and the definition of ``Exchange'' added. In the NYSE Group Certificate, Article IV, Section 4(b)(1)(A)(w), the text ``of the Regulated Subsidiaries, in each case to the extent that such entities continue to be controlled, directly or indirectly, by the Corporation,'' would be replaced with ``Exchange,'' and ``the Regulated Subsidiaries'' would be replaced with ``each Exchange.'' In the NYSE Group Bylaws, the list of national securities exchanges, NYSE Arca, LLC, NYSE Arca Equities and their successors in Article VII, Section 7.9(b) would be replaced with the definition of ``Exchange.'' Throughout the Governing Documents, ``U.S. Regulated Subsidiary,'' ``U.S. Regulated Subsidiary's,'' ``U.S. Regulated Subsidiaries,'' ``Regulated Subsidiary,'' ``Regulated Subsidiary's,'' and ``Regulated Subsidiaries'' would be replaced with ``Exchange,'' ``Exchange's,'' or ``Exchanges,'' as applicable. Similarly, lists of any or all of the ICE national securities exchanges, NYSE Arca Equities, NYSE Arca, LLC, their successors, facilities, or the boards of directors of successors, would be replaced with ``Exchange'' or ``Exchanges,'' as applicable.\12\ --------------------------------------------------------------------------- \12\ For example, in Article XII, clause (b) of the NYSE Group Certificate, ``the boards of directors of New York Stock Exchange, NYSE Arca, NYSE Arca Equities, NYSE MKT and NYSE National or the boards of directors of their successors'' would be amended to ``the boards of directors of each Exchange.'' --------------------------------------------------------------------------- When making such replacements, the Exchange would utilize a comma or the terms ``any,'' ``each,'' ``an,'' or ``one or more'' and delete the terms ``the'' or ``of the'' as necessary to integrate the term into the text. Finally, references to ``their'' would be amended to ``its'' as required by the context.\13\ --------------------------------------------------------------------------- \13\ For example, in Article III, Section 3.14(b) of the ICE Holdings Bylaws and Article III, Section 3.12(c) of the NYSE Holdings Operating Agreement, ``their regulatory authority'' would be amended to ``its regulatory authority.'' --------------------------------------------------------------------------- Definition of Intermediate Holding Companies The ICE Holdings and NYSE Holdings Governing Documents reference NYSE Holdings and NYSE Group by name.\14\ The ICE Certificate and ICE Bylaws use the defined term ``Intermediate Holding Companies'' instead, defining an ``Intermediate Holding Company'' as ``any entity controlled by the Corporation that is not itself an Exchange but that directly or indirectly controls an Exchange.'' \15\ The Exchange proposes to amend the Governing Documents to be consistent with the ICE Certificate and ICE Bylaws by using the [[Page 55476]] term ``Intermediate Holding Companies'' instead of specific names. --------------------------------------------------------------------------- \14\ The NYSE Group Governing Documents do not make such references because there are no Intermediate Holding Companies between NYSE Group and the Exchange or its national securities exchange affiliates. \15\ See ICE Certificate, Art. V, Sec. A.3(a); ICE Bylaws, Art. III, Sec. 3.14(a)(2); and 82 FR 25018, supra note 4, at 25019. The Intermediate Holding Companies between ICE and the Exchange are ICE Holdings, NYSE Holdings, and NYSE Group. --------------------------------------------------------------------------- The Exchange accordingly proposes the following changes to the ICE Holdings Certificate, Article V, Section A(3)(a); ICE Holdings Bylaws, Article III, Section 3.14(a)(2); and NYSE Holdings Operating Agreement: In these ICE Holdings Governing Document provisions, the initial references to NYSE Holdings or NYSE Group, including the text ``(if and to the extent that NYSE Group continues to exist as a separate entity),'' would be replaced with the definition of ``Intermediate Holding Company.'' \16\ The additional references to NYSE Holdings or NYSE Group would be replaced with the terms ``Intermediate Holding Company'' and ``Intermediate Holding Companies,'' as applicable. --------------------------------------------------------------------------- \16\ In the ICE Holdings Certificate, the word ``respective'' also would be deleted. --------------------------------------------------------------------------- In the NYSE Holdings Operating Agreement, Article 1, Section 1.1, the definition of ``NYSE Group'' would be deleted and the definition of ``Intermediate Holding Company'' added, and in Article III, Section 3.12(b)(2) and Article IX, Section 9.1(a)(3)(A) and (b)(3)(A), references to ``NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity)'' would be replaced with ``Intermediate Holding Companies'' or ``Intermediate Holding Company,'' as applicable. Considerations of the Board The ICE Holdings Bylaws, NYSE Holdings Agreement, and NYSE Group Certificate have provisions setting forth considerations directors must take into account in discharging their responsibilities.\17\ Each such provision limits claims against directors, officers and employees as well as the relevant Intermediate Holding Company. The Exchange proposes to amend such provisions to substantially conform them to the analogous provision in the ICE Bylaws, as well as the governing documents of other holding companies of national securities exchanges, which are substantially similar.\18\ --------------------------------------------------------------------------- \17\ See ICE Holdings Bylaws, Art. III, Sec. 3.14; NYSE Holdings Agreement, Art. III, Sec. 3.12; and NYSE Group Certificate Art. V, Sec. 8. \18\ See ICE Bylaws, Art. III, Sec. 3.14(c); Amended and Restated Bylaws of Bats Global Markets Holdings, Inc., Art. VII, Sec. 7.2; Amended and Restated Limited Liability Company Agreement of BOX Holdings Group LLC, Art. 4, Sec. 4.12; Bylaws of IEX Group, Inc., Art. VII, Sec. 34; and Amended and Restated Bylaws of Miami International Holdings, Inc., Art. VII, Sec. 1. --------------------------------------------------------------------------- The Exchange accordingly proposes the following changes to the ICE Holdings Bylaws, Article III, Section 3.14(c); NYSE Group Certificate, Article V, Section 8; and NYSE Holdings Operating Agreement, Section 3.12(d): The ICE Holdings Bylaws and NYSE Group Certificate provisions 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 as well as directors, officers and employees. To implement the change, the Exchange proposes to amend the final sentences of the ICE Holdings Bylaws and NYSE Group Certificate provisions as follows (deletions [bracketed], additions italicized): No past or present stockholder, employee, [former employee,] beneficiary, agent, customer, creditor, community or regulatory authority or member thereof or other person or entity shall have any rights against any director, officer, [or] employee or agent of the Corporation or the Corporation under this Section . . . . The NYSE Holdings Operating Agreement provision would be expanded in scope to apply to any ``past or present Manager, employee, beneficiary, agent, customer, creditor, community or regulatory authority or member thereof or other person or entity,'' and to protect agents as well as Managers, officers and employees. To implement the change, the Exchange proposes to amend the final sentence of the provision as follows (deletions [bracketed], additions italicized): No past or present Manager, employee, [former employee,] beneficiary, agent, customer, creditor, community or regulatory authority or member thereof or other person or entity shall have any rights against any Manager, officer, [or] employee or agent of the Company or the Company under Section 3.12. Limitations on Voting and Ownership The ICE Holdings Certificate, NYSE Holdings Operating Agreement, and NYSE Group Certificate have provisions that establish voting and ownership concentration limitations on owners of their respective common stock above certain thresholds, which apply for so long as the relevant Intermediate Holding Company owns any U.S. Regulated Subsidiary (the ``Limitation Provisions'').\19\ Such provisions authorize the relevant entity's Board of Directors to grant exceptions to the voting and ownership concentration limitations if the Board of Directors makes certain determinations. --------------------------------------------------------------------------- \19\ See ICE Holdings Certificate, Art. V, Sec. A and B; NYSE Holdings Operating Agreement, Art. IX, Sec. 9.1(a) and (b); and NYSE Group Certificate, Art. IV, Sec. 4(b)(1) and (2). --------------------------------------------------------------------------- The ICE Certificate has a similar voting and ownership concentration limitation provision.\20\ The Exchange proposes to amend the Limitations Provisions to make them more consistent with the provision in the ICE Certificate. --------------------------------------------------------------------------- \20\ See ICE Certificate, Art. V, Sec. A and B, and 82 FR 25018, supra note 4, at 25020. --------------------------------------------------------------------------- Definition of Member Currently, the Limitation Provisions include lengthy provisions listing the different categories of members and permit holders of each of the NYSE, NYSE American, NYSE Arca, and NYSE National.\21\ Consistent with the ICE Certificate,\22\ the Exchange proposes to replace such provisions with the defined term ``Member,'' or, in the case of the NYSE Holdings Operating Agreement, ``Exchange Member,'' 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.\23\ --------------------------------------------------------------------------- \21\ See ICE Holdings Certificate, Art. V, Sec. A(3)(c); NYSE Holdings Operating Agreement, Art. IX, Sec. 9.1(a)(3)(c); and NYSE Group Certificate, Art. IV, Sec. 4(b)(1)(A)(y). \22\ See ICE Certificate, Art. V, Sec. A(3)(c) and (8). \23\ 15 U.S.C. 78c(a)(3)(A). NYSE Holdings uses ``Exchange Member'' because, as a limited liability company, it has a Member, which is ICE Holdings. --------------------------------------------------------------------------- The Exchange believes that using ``Member'' or ``Exchange Member'' in place of the lists of categories of members and permit holders presently in the Governing Documents would simplify the Limitation Provisions, avoiding exchange-by-exchange descriptions of categories of members and permit holders without substantive change. Each of the categories listed--an ETP Holder, OTP Holder or OTP Firm of NYSE Arca, a ``member'' or ``member organization'' of the NYSE or NYSE American, or an ETP Holder of NYSE National--is a ``member'' of an exchange within the meaning of Section 3(a)(3)(A) of the Exchange Act.\24\ --------------------------------------------------------------------------- \24\ 15 U.S.C. 78c(a)(3)(A). Former NYSE Arca Equities ETP Holders are now ETP Holders of NYSE Arca. See 82 FR 40044, supra note 10, at 40044. --------------------------------------------------------------------------- The Exchange believes that the use of ``Member'' and the changes to remove the descriptions of categories of members and permit holders would be appropriate because it would align the Limitation Provisions more closely with the ICE Certificate, as well as voting and ownership concentration limits in the certificates of incorporation of other companies that own one or more national securities exchanges, which use a similar description of membership.\25\ The Exchange [[Page 55477]] accordingly proposes the following changes: --------------------------------------------------------------------------- \25\ See Second Amended and Restated Certificate of Incorporation of CBOE Holdings, Inc. (``CBOE Certificate''), Art. Sixth, Sec. (a)(ii)(C) and (b)(ii)(D) (``Trading Permit Holder''); Amended and Restated Certificate of Incorporation of Miami International Holdings, Inc., Article Ninth (a)(ii) (``Exchange Member''). --------------------------------------------------------------------------- The definition of ``Member'' would be added to the ICE Holdings Certificate, Article V.A.8, and NYSE Group Certificate, Article IV, Section 4(b)(1)(F). Articles V.A.8 through 10 of the ICE Holdings Certificate would be renumbered accordingly. In the NYSE Holdings Operating Agreement, Article I, Section 1.1, the definition of ``Exchange Member'' would be added and the definitions of ``MKT Member,'' ``NYSE Arca ETP Holder,'' ``NYSE Member,'' ``NYSE National ETP Holder,'' ``OTP Firm,'' and ``OTP Holder'' would be deleted. In the NYSE Group Certificate, Article IV, Section 4(b)(2)(C)(iv), ``an NYSE Arca ETP Holder or an OTP Holder or OTP Firm'' would be replaced with ``a Member of any Exchange.'' \26\ --------------------------------------------------------------------------- \26\ See ICE Certificate, Art. V, Sec. B(3)(d). --------------------------------------------------------------------------- Approval Requirements for Exceeding Voting and Concentration Limits The Exchange proposes that, in the case of a person seeking approval to exercise voting rights in excess of 20% of the outstanding votes, the amended Limitation Provisions require that neither such person nor any of its related persons be a Member of an Exchange, instead of referring to the various categories of Exchange membership. Accordingly, the Exchange proposes to make the following changes to ICE Holdings Certificate, Article V.A.3.c; NYSE Holdings Operating Agreement, Article IX, Section 9.1(a)(3)(C); and the NYSE Group Certificate, Article IV, Section 4(b)(1)(A)(y): In the provisions of the ICE Holdings and NYSE Holdings Governing Documents, 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.'' In addition, ``and'' would be added between clauses (i) and (ii). In the provision of the NYSE Group Certificate, ``the NYSE Arca or NYSE Arca Equities or any facility of NYSE Arca'' would be replaced with ``one or more Exchanges.'' In addition, ``and'' would be added between clauses (1) and (2). In all three provisions, 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'' through the end of the paragraph, with the exception that the NYSE Holdings text does not include ``(as defined below).'' In addition, the Exchange proposes the following changes to the ICE Holdings Certificate, Article V.A.3.d; NYSE Holdings Operating Agreement, Article IX, Section 9.1(a)(3)(D); and the NYSE Group Certificate, Article IV, Section 4(b)(1)(A)(z): In all three provisions, the text ``NYSE Arca or NYSE Arca Equities or any facility of NYSE Arca'' would be replaced with ``one or more Exchanges,'' with the exception that the NYSE Group text has the word ``the'' at its start. The text ``a Member of any Exchange'' would replace the text from ``an NYSE Arca ETP Holder'' through the end of the paragraph. In the provisions of the ICE Holdings and NYSE Holdings Governing Documents, the word ``and'' would be added between (i) and (ii). In the provision of the NYSE Group Certificate, the word ``and'' would be added between clauses (1) and (2). The Exchange proposes that the conditions relating to a person seeking approval to exceed the ownership concentration limitation be similarly amended. The Exchange accordingly proposes the following changes to the ICE Holdings Certificate, Article V.B.3.d; NYSE Holdings Operating Agreement, Article IX, Section 9.1(b)(3)(D); and the NYSE Group Certificate, Article IV, Section 4(b)(2)(C)(iv): The word ``and'' would be added immediately before the provisions. The text ``NYSE Arca or NYSE Arca Equities or any facility of NYSE Arca'' would be replaced with ``any Exchange,'' with the exception that the NYSE Group text has the word ``the'' at its start. The text from ``an NYSE Arca ETP Holder'' through the end of the next three subparagraphs would be deleted and replaced with ``a Member of any Exchange.'' Definition of Related Persons Currently, the Limitation Provisions include lengthy definitions of ``Related Persons.'' The Exchange proposes to amend such definitions to eliminate the exchange-by-exchange description. 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. The revised definitions would be the same as the definition in the ICE Certificate, subject to differences in numbering and, in the NYSE Holdings Operating Agreement, certain terms.\27\ --------------------------------------------------------------------------- \27\ See ICE Certificate, Art. V, Sec. A(10). NYSE Holdings uses ``Interests of the Company'' rather than ``shares of stock of the Corporation.'' --------------------------------------------------------------------------- The Exchange accordingly proposes the following changes to the definitions of ``Related Persons'' in the ICE Holdings Certificate, current Article V.A(9); NYSE Holdings Operating Agreement, Article I, Section 1.1; and NYSE Group Certificate, Article IV, Section 4(b)(1)(E): In the fourth subparagraph, 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 the fifth subparagraph, the text ``an OTP Firm, any OTP Holder that is associated with such Person'' would be replaced with ``a natural person and is a Member, any broker or dealer that is also a Member with which such Person is associated.'' In the ICE Holdings Certificate and NYSE Holdings Operating Agreement, ``and'' would be added between the seventh and eighth subparagraphs. In the NYSE Group Certificate, ``and'' would be added between the eighth and ninth subparagraphs. In the ICE Holdings Certificate and NYSE Holdings Operating Agreement, subparagraphs nine through 12 would be deleted. In the NYSE Group Certificate, subparagraphs six and ten through 12 would be deleted, and the provisions renumbered accordingly. Confidential Information The Exchange proposes to amend the confidential information provisions in the ICE Holdings Bylaws, NYSE Holdings Operating Agreement, and NYSE Group Certificate. The proposed amendments would make such Governing Documents more consistent with the confidential information provision in the ICE Bylaws.\28\ --------------------------------------------------------------------------- \28\ See ICE Bylaws, Art. VIII. See also 82 FR 25018, supra note 4, at 25020. --------------------------------------------------------------------------- Accordingly, in the ICE Holdings Bylaws, Article VIII, Section 8.3(b); NYSE Holdings Operating Agreement, Article XII, Section 12.3; and NYSE Group Certificate, Article X, 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.'' \29\ --------------------------------------------------------------------------- \29\ The text of the NYSE Group Certificate uses ``Regulated Subsidiary'' instead of ``U.S. Regulated Subsidiary.'' --------------------------------------------------------------------------- [[Page 55478]] The proposed change would remove the provisions that allow any U.S. Regulated Subsidiary to inspect and copy the books and records of another U.S. Regulated Subsidiary over which the first has regulatory authority or oversight. As a result, the confidential information provisions would no longer provide that NYSE Arca may inspect the books and records of NYSE Arca, LLC or NYSE Arca Equities. However, the proposed change would have no substantive effect, because pursuant to NYSE Arca Rule 3.12 \30\ NYSE Arca would retain its authority over the books and records of NYSE Arca, LLC, and NYSE Arca Equities no longer exists. The NYSE, NYSE American, NYSE Arca and NYSE National do not have regulatory authority or oversight over each other. --------------------------------------------------------------------------- \30\ NYSE Arca Rule 3.12 provides, among other things, that the books and records of NYSE Arca, LLC are deemed to be the books and records of NYSE Arca for purposes of and subject to oversight pursuant to the Exchange Act and subject to inspection and copying by NYSE Arca. See ICE Bylaws, Art. VIII, Sec. 8.3. --------------------------------------------------------------------------- The Exchange proposes the following additional changes to the provisions: In the ICE Holdings Bylaws, Article VIII, Sections 8.1 and 8.2, and NYSE Holdings Operating Agreement, Article XII, Sections 12.1 and 12.2, ``U.S. Subsidiaries' Confidential Information'' would be amended to ``Exchange Confidential Information.'' In the NYSE Holdings Operating Agreement, Article 1, Section 1.1, the definition of ``U.S. Subsidiaries' Confidential Information'' would be deleted and the definition of ``Exchange Confidential Information'' added. Additional Proposed Changes to the Governing Documents In addition to the above, the Exchange proposes that Article II of the ICE Holdings Certificate be updated to include the name and building of its registered office in the State of Delaware. In addition, conforming changes would be made to the title, recitals, date and signature line, as applicable, of the Governing Documents. ICE Certificate The Exchange proposes to make a non-substantive amendment to Article V, Section A(3)(a) of the ICE Certificate. Due to an oversight, the text of the ICE Certificate approved by the ICE shareholders at the ICE annual meeting omitted the word ``respective'' from Article V, Section A(3)(a).\31\ To conform the ICE Certificate filed with the Commission to the text approved by the shareholders, the Exchange proposes to delete the word ``respective'' from clause (i) of the provision, which would read as follows (proposed deletion in bracket): --------------------------------------------------------------------------- \31\ See Intercontinental Exchange, Inc. Notice of 2017 Annual Meeting and Proxy Statement, at page A-5, available at https:// ir.theice.com/~/media/Files/I/Ice-IR/quarterly-results/2016/proxy- statement-2016.pdf. will not impair the ability of any national securities exchange registered under Section 6 of the Exchange Act that is 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 Corporation to discharge their [respective] responsibilities under --------------------------------------------------------------------------- the Exchange Act and the rules and regulations thereunder . . . . The Exchange does not propose to make any other changes to the ICE Certificate. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act \32\ in general, and with Section 6(b)(1) \33\ 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. --------------------------------------------------------------------------- \32\ 15 U.S.C. 78f(b). \33\ 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 American, NYSE Arca, NYSE Arca, LLC and NYSE Arca Equities with references to an ``Exchange'' or the ``Exchanges,'' as appropriate, would contribute to the orderly operation of the Exchange by adding clarity and transparency to the Exchange's rules by eliminating references in the Governing Documents to entities that are not national securities exchanges. The Exchange Act definition of ``exchange'' states that ``exchange'' ``includes the market place and the market facilities maintained by such exchange.'' \34\ 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 Governing Documents. The Exchange notes that the proposed change would align the Governing Documents voting and ownership concentration limits in the certificates of incorporation of other companies that own one or more national securities exchanges, which do not include references to subsidiaries other than national securities exchanges.\35\ In addition, it would contribute to the orderly operation of the Exchange by adding clarity and transparency to the Exchange's rules by eliminating obsolete references to NYSE Arca Equities, which has been merged out of existence. --------------------------------------------------------------------------- \34\ 15 U.S.C. 78c(a)(1). \35\ See CBOE Certificate, Art. Fifth, Sec. (a)(v), and Art. Sixth, Sec. (a)(ii)(A) (``Regulated Securities Exchange Subsidiaries''); and Amended and Restated Certificate of Incorporation of Bats Global Markets Holdings, Inc., Art. Fifth, Sec. (2) (``Exchange Subsidiaries''). --------------------------------------------------------------------------- As a result of the proposed use of ``Exchanges'' instead of ``U.S. Regulated Subsidiaries,'' the confidential information provisions of the Governing Documents 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, including that NYSE Arca may inspect the books and records of NYSE Arca, LLC or NYSE Arca Equities. The proposed change would add further clarity and transparency to the Exchange's rules without having a substantive effect, as, pursuant to NYSE Arca Rule 3.12, NYSE Arca would retain its authority over the books and records of NYSE Arca, LLC, NYSE Arca Equities no longer exists and the NYSE, NYSE American, NYSE Arca and NYSE National do not have regulatory authority or oversight over each other. The Exchange believes that the proposed use in the Governing Documents of the defined term ``Intermediate Holding Company'' in place of lists of intermediate holding companies would contribute to the orderly operation of the Exchange by adding clarity and transparency to the Exchange's rules by eliminating references to entities that are not national securities exchanges without making a substantive change. Similarly, the Exchange believes that the proposed use of the defined term ``Member'' in place of lists of categories of members and permit holders in the Limitation Provisions would simplify the provisions without substantive change, avoiding exchange-by-exchange descriptions of categories of members and permit holders, as each of the categories currently listed is a ``member'' of an exchange within the meaning of Section 3(a)(3)(A) of the [[Page 55479]] Exchange Act.\36\ Such use of ``Member,'' along with the simplification of the definition of ``Related Persons'' in the Limitation Provisions, would add clarity and transparency to the Exchange's rules as well as align the Limitation Provisions with the ICE Certificate voting and ownership concentration limits and with the voting and ownership concentration limits in the certificates of incorporation of other companies that own one or more national securities exchanges, which use a similar description of membership.\37\ --------------------------------------------------------------------------- \36\ 15 U.S.C. 78c(a)(3)(A). Former NYSE Arca Equities ETP Holders are now ETP Holders of NYSE Arca. See 82 FR 40044, supra note 10, at 40044. \37\ See note 25, supra. --------------------------------------------------------------------------- For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act \38\ 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. --------------------------------------------------------------------------- \38\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- Specifically, the proposed amendments (1) replacing references to the U.S. Regulated Subsidiaries, Regulated Subsidiaries, and to the NYSE, NYSE American, NYSE Arca, NYSE Arca, LLC and NYSE Arca Equities with references to an ``Exchange'' or the ``Exchanges,'' as appropriate; (2) using ``Intermediate Holding Company'' in place of lists of intermediate holding companies; (3) using ``Member'' in place of the lists of categories of members and permit holders in the Limitation Provisions; (4) simplifying the definition of ``Related Persons'' in the Limitation Provisions; (5) removing the ability of a U.S. Regulated Subsidiary to inspect the books and records of other U.S. Regulated Subsidiaries; and (6) making conforming changes to the Governing Documents, would remove impediments to and perfect the mechanism of a free and open market by simplifying and streamlining the Exchange's rules and removing obsolete references, thereby 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 believes that the proposed amendments to the Governing Document provisions limiting claims against directors, officers and employees, as well as the relevant Intermediate Holding Company, 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 ICE Certificate, as well as in the governing documents of other holding companies of national securities exchanges, which are substantially similar.\39\ --------------------------------------------------------------------------- \39\ See note 18, supra. --------------------------------------------------------------------------- Finally, the Exchange believes that its proposed non-substantive amendment to Article V, Section A(3)(a) 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, to protect investors and the public interest because it would ensure that the ICE Certificate filed with the Commission conforms to the text approved by the ICE shareholders at the ICE annual meeting. 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 the Intermediate Holding Company governing documents to make them more consistent with the governing documents of ICE, their ultimate parent, including by (a) streamlining references to ICE subsidiaries that either are or control national securities exchanges and deleting references to other ICE subsidiaries; and (b) amending the provisions regarding limitations on claims, voting and ownership concentration limitations, and confidential information. 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 The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act \40\ and Rule 19b-4(f)(6) thereunder.\41\ Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b- 4(f)(6) thereunder.\42\ --------------------------------------------------------------------------- \40\ 15 U.S.C. 78s(b)(3)(A)(iii). \41\ 17 CFR 240.19b-4(f)(6). \42\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) requires a self-regulatory organization to give the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement. --------------------------------------------------------------------------- At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) \43\ of the Act to determine whether the proposed rule change should be approved or disapproved. --------------------------------------------------------------------------- \43\ 15 U.S.C. 78s(b)(2)(B). --------------------------------------------------------------------------- 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 [[Page 55480]] Send an email to [email protected]. Please include File Number SR-NYSE-2017-57 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-2017-57. 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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2017-57 and should be submitted on or before December 12, 2017. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\44\ --------------------------------------------------------------------------- \44\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2017-25138 Filed 11-20-17; 8:45 am] BILLING CODE 8011-01-P
![55474 Federal Register / Vol. 82, No. 223 / Tuesday, November 21, 2017 / Notices
Electronic Comments SECURITIES AND EXCHANGE II. Self-Regulatory Organization’s
COMMISSION Statement of the Purpose of, and
• Use the Commission’s Internet Statutory Basis for, the Proposed Rule
comment form (http://www.sec.gov/ [Release No. 34–82081; File No. SR–NYSE–
2017–57]
Change
rules/sro.shtml); or
In its filing with the Commission, the
• Send an email to rule-comments@ Self-Regulatory Organizations; New self-regulatory organization included
sec.gov. Please include File Number SR– York Stock Exchange LLC; Notice of statements concerning the purpose of,
BatsEDGA–2017–29 on the subject line. Filing and Immediate Effectiveness of and basis for, the proposed rule change
Proposed Rule Change To Amend the and discussed any comments it received
Paper Comments Governing Documents of Its on the proposed rule change. The text
• Send paper comments in triplicate Intermediate Parent Companies of those statements may be examined at
to Secretary, Securities and Exchange Intercontinental Exchange Holdings, the places specified in Item IV below.
Inc., NYSE Holdings LLC and NYSE
Commission, 100 F Street NE., The Exchange has prepared summaries,
Group, Inc. To Make Them More
Washington, DC 20549–1090. set forth in sections A, B, and C below,
Consistent With the Governing
of the most significant parts of such
All submissions should refer to File Documents of Their Ultimate Parent
statements.
Number SR–BatsEDGA–2017–29. This Intercontinental Exchange, Inc.
file number should be included on the A. Self-Regulatory Organization’s
November 15, 2017.
subject line if email is used. To help the Statement of the Purpose of, and the
Pursuant to Section 19(b)(1) 1
of the Statutory Basis for, the Proposed Rule
Commission process and review your Securities Exchange Act of 1934 (the
comments more efficiently, please use Change
‘‘Act’’ or ‘‘Exchange Act’’) 2 and Rule
only one method. The Commission will 19b–4 thereunder,3 notice is hereby 1. Purpose
post all comments on the Commission’s given that on November 2, 2017, New
Internet Web site (http://www.sec.gov/ The Exchange proposes to amend the
York Stock Exchange LLC (‘‘NYSE’’ or
rules/sro.shtml). Copies of the governing documents of its intermediate
the ‘‘Exchange’’) filed with the
submission, all subsequent parent companies ICE Holdings, NYSE
Securities and Exchange Commission
amendments, all written statements Holdings, and NYSE Group (together,
(the ‘‘Commission’’) the proposed rule
the ‘‘Intermediate Holding Companies’’)
with respect to the proposed rule change as described in Items I and II
to make them more consistent with the
change that are filed with the below, which Items have been prepared
ICE governing documents, including by
Commission, and all written by the self-regulatory organization. The
(a) streamlining references to ICE
communications relating to the Commission is publishing this notice to
subsidiaries that either are or control
proposed rule change between the solicit comments on the proposed rule
national securities exchanges and
Commission and any person, other than change from interested persons.
deleting references to other ICE
those that may be withheld from the I. Self-Regulatory Organization’s subsidiaries; and (b) amending the
public in accordance with the Statement of the Terms of Substance of provisions regarding limitations on
provisions of 5 U.S.C. 552, will be the Proposed Rule Change claims, voting and ownership
available for Web site viewing and concentration limitations, and
The Exchange proposes to amend the
printing in the Commission’s Public governing documents of its intermediate confidential information. In addition,
Reference Room, 100 F Street NE., parent companies Intercontinental the Exchange proposes to make a non-
Washington, DC 20549, on official Exchange Holdings, Inc. (‘‘ICE substantive change to the ICE certificate
business days between the hours of Holdings’’), NYSE Holdings LLC of incorporation.
10:00 a.m. and 3:00 p.m. Copies of the (‘‘NYSE Holdings’’), and NYSE Group, More specifically, the Exchange
filing also will be available for Inc. (‘‘NYSE Group’’) to make them proposes to amend the following
inspection and copying at the principal more consistent with the governing documents (collectively, the ‘‘Governing
office of the Exchange. All comments documents of their ultimate parent Documents’’):
received will be posted without change. Intercontinental Exchange, Inc. (‘‘ICE’’), • Eighth Amended and Restated
Persons submitting comments are including by (a) streamlining references Certificate of Incorporation of ICE
cautioned that we do not redact or edit to ICE subsidiaries that either are or Holdings (‘‘ICE Holdings Certificate’’)
personal identifying information from control national securities exchanges and Fifth Amended and Restated
comment submissions. You should and deleting references to other ICE Bylaws of ICE Holdings (‘‘ICE Holdings
submit only information that you wish subsidiaries; and (b) amending the Bylaws’’);
to make available publicly. All provisions regarding limitations on • Eighth Amended and Restated
submissions should refer to File claims, voting and ownership Limited Liability Company Agreement
Number SR–BatsEDGA–2017–29 and concentration limitations, and of NYSE Holdings (‘‘NYSE Holdings
should be submitted on or before confidential information. In addition, Operating Agreement’’); and
December 12, 2017. the Exchange proposes to make a non- • Fifth Amended and Restated
substantive change to the ICE certificate Certificate of Incorporation of NYSE
For the Commission, by the Division of of incorporation. The proposed rule Group (‘‘NYSE Group Certificate’’) and
asabaliauskas on DSKBBXCHB2PROD with NOTICES
Trading and Markets, pursuant to delegated change is available on the Exchange’s
authority.21 Third Amended and Restated Bylaws of
Web site at www.nyse.com, at the NYSE Group (‘‘NYSE Group Bylaws’’).
Eduardo A. Aleman, principal office of the Exchange, and at
As discussed below, the proposed
Assistant Secretary. the Commission’s Public Reference
changes to the Governing Documents
[FR Doc. 2017–25143 Filed 11–20–17; 8:45 am] Room.
would make the relevant provisions
BILLING CODE 8011–01–P more consistent with the Fourth
1 15 U.S.C. 78s(b)(1).
2 15 U.S.C. 78a. Amended and Restated Certificate of
21 17 CFR 200.30–3(a)(12) and (59). 3 17 CFR 240.19b–4. Incorporation of ICE (‘‘ICE Certificate’’)
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term ‘‘Intermediate Holding V, Section 8; and NYSE Holdings The ICE Certificate has a similar
Companies’’ instead of specific names. Operating Agreement, Section 3.12(d): voting and ownership concentration
The Exchange accordingly proposes • The ICE Holdings Bylaws and limitation provision.20 The Exchange
the following changes to the ICE NYSE Group Certificate provisions proposes to amend the Limitations
Holdings Certificate, Article V, Section would be expanded in scope to apply to Provisions to make them more
A(3)(a); ICE Holdings Bylaws, Article III, any ‘‘past or present stockholder, consistent with the provision in the ICE
Section 3.14(a)(2); and NYSE Holdings employee, beneficiary, agent, customer, Certificate.
Operating Agreement: creditor, community or regulatory
• In these ICE Holdings Governing Definition of Member
authority or member thereof or other
Document provisions, the initial person or entity,’’ and to protect agents Currently, the Limitation Provisions
references to NYSE Holdings or NYSE as well as directors, officers and include lengthy provisions listing the
Group, including the text ‘‘(if and to the employees. To implement the change, different categories of members and
extent that NYSE Group continues to the Exchange proposes to amend the permit holders of each of the NYSE,
exist as a separate entity),’’ would be final sentences of the ICE Holdings NYSE American, NYSE Arca, and NYSE
replaced with the definition of Bylaws and NYSE Group Certificate National.21 Consistent with the ICE
‘‘Intermediate Holding Company.’’ 16 provisions as follows (deletions Certificate,22 the Exchange proposes to
The additional references to NYSE [bracketed], additions italicized): replace such provisions with the
Holdings or NYSE Group would be defined term ‘‘Member,’’ or, in the case
No past or present stockholder, employee,
replaced with the terms ‘‘Intermediate of the NYSE Holdings Operating
[former employee,] beneficiary, agent,
Holding Company’’ and ‘‘Intermediate customer, creditor, community or regulatory Agreement, ‘‘Exchange Member,’’
Holding Companies,’’ as applicable. authority or member thereof or other person defined to mean a person that is a
• In the NYSE Holdings Operating or entity shall have any rights against any ‘‘member’’ of an exchange within the
Agreement, Article 1, Section 1.1, the director, officer, [or] employee or agent of the meaning of Section 3(a)(3)(A) of the
definition of ‘‘NYSE Group’’ would be Corporation or the Corporation under this Exchange Act.23
deleted and the definition of Section . . . . The Exchange believes that using
‘‘Intermediate Holding Company’’ • The NYSE Holdings Operating ‘‘Member’’ or ‘‘Exchange Member’’ in
added, and in Article III, Section Agreement provision would be place of the lists of categories of
3.12(b)(2) and Article IX, Section expanded in scope to apply to any ‘‘past members and permit holders presently
9.1(a)(3)(A) and (b)(3)(A), references to or present Manager, employee, in the Governing Documents would
‘‘NYSE Group (if and to the extent that beneficiary, agent, customer, creditor, simplify the Limitation Provisions,
NYSE Group continues to exist as a community or regulatory authority or avoiding exchange-by-exchange
separate entity)’’ would be replaced member thereof or other person or descriptions of categories of members
with ‘‘Intermediate Holding entity,’’ and to protect agents as well as and permit holders without substantive
Companies’’ or ‘‘Intermediate Holding Managers, officers and employees. To change. Each of the categories listed—an
Company,’’ as applicable. implement the change, the Exchange ETP Holder, OTP Holder or OTP Firm
Considerations of the Board proposes to amend the final sentence of of NYSE Arca, a ‘‘member’’ or ‘‘member
the provision as follows (deletions organization’’ of the NYSE or NYSE
The ICE Holdings Bylaws, NYSE American, or an ETP Holder of NYSE
Holdings Agreement, and NYSE Group [bracketed], additions italicized):
National—is a ‘‘member’’ of an
Certificate have provisions setting forth No past or present Manager, employee, exchange within the meaning of Section
considerations directors must take into [former employee,] beneficiary, agent,
customer, creditor, community or regulatory
3(a)(3)(A) of the Exchange Act.24
account in discharging their The Exchange believes that the use of
responsibilities.17 Each such provision authority or member thereof or other person
or entity shall have any rights against any ‘‘Member’’ and the changes to remove
limits claims against directors, officers Manager, officer, [or] employee or agent of the descriptions of categories of
and employees as well as the relevant the Company or the Company under Section members and permit holders would be
Intermediate Holding Company. The 3.12. appropriate because it would align the
Exchange proposes to amend such Limitation Provisions more closely with
provisions to substantially conform Limitations on Voting and Ownership
the ICE Certificate, as well as voting and
them to the analogous provision in the The ICE Holdings Certificate, NYSE ownership concentration limits in the
ICE Bylaws, as well as the governing Holdings Operating Agreement, and certificates of incorporation of other
documents of other holding companies NYSE Group Certificate have provisions companies that own one or more
of national securities exchanges, which that establish voting and ownership national securities exchanges, which
are substantially similar.18 concentration limitations on owners of use a similar description of
The Exchange accordingly proposes their respective common stock above membership.25 The Exchange
the following changes to the ICE certain thresholds, which apply for so
Holdings Bylaws, Article III, Section long as the relevant Intermediate 20 See ICE Certificate, Art. V, Sec. A and B, and
3.14(c); NYSE Group Certificate, Article Holding Company owns any U.S. 82 FR 25018, supra note 4, at 25020.
21 See ICE Holdings Certificate, Art. V, Sec.
Regulated Subsidiary (the ‘‘Limitation
16 In the ICE Holdings Certificate, the word A(3)(c); NYSE Holdings Operating Agreement, Art.
Provisions’’).19 Such provisions IX, Sec. 9.1(a)(3)(c); and NYSE Group Certificate,
‘‘respective’’ also would be deleted.
authorize the relevant entity’s Board of Art. IV, Sec. 4(b)(1)(A)(y).
asabaliauskas on DSKBBXCHB2PROD with NOTICES
17 See ICE Holdings Bylaws, Art. III, Sec. 3.14;
NYSE Holdings Agreement, Art. III, Sec. 3.12; and Directors to grant exceptions to the 22 See ICE Certificate, Art. V, Sec. A(3)(c) and (8).
NYSE Group Certificate Art. V, Sec. 8. voting and ownership concentration 23 15 U.S.C. 78c(a)(3)(A). NYSE Holdings uses
18 See ICE Bylaws, Art. III, Sec. 3.14(c); Amended
limitations if the Board of Directors ‘‘Exchange Member’’ because, as a limited liability
and Restated Bylaws of Bats Global Markets company, it has a Member, which is ICE Holdings.
makes certain determinations. 24 15 U.S.C. 78c(a)(3)(A). Former NYSE Arca
Holdings, Inc., Art. VII, Sec. 7.2; Amended and
Restated Limited Liability Company Agreement of Equities ETP Holders are now ETP Holders of NYSE
BOX Holdings Group LLC, Art. 4, Sec. 4.12; Bylaws 19 See ICE Holdings Certificate, Art. V, Sec. A and Arca. See 82 FR 40044, supra note 10, at 40044.
of IEX Group, Inc., Art. VII, Sec. 34; and Amended B; NYSE Holdings Operating Agreement, Art. IX, 25 See Second Amended and Restated Certificate
and Restated Bylaws of Miami International Sec. 9.1(a) and (b); and NYSE Group Certificate, Art. of Incorporation of CBOE Holdings, Inc. (‘‘CBOE
Holdings, Inc., Art. VII, Sec. 1. IV, Sec. 4(b)(1) and (2). Certificate’’), Art. Sixth, Sec. (a)(ii)(C) and (b)(ii)(D)
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The proposed change would remove the ICE Certificate filed with the change would align the Governing
the provisions that allow any U.S. Commission to the text approved by the Documents voting and ownership
Regulated Subsidiary to inspect and shareholders, the Exchange proposes to concentration limits in the certificates of
copy the books and records of another delete the word ‘‘respective’’ from incorporation of other companies that
U.S. Regulated Subsidiary over which clause (i) of the provision, which would own one or more national securities
the first has regulatory authority or read as follows (proposed deletion in exchanges, which do not include
oversight. As a result, the confidential bracket): references to subsidiaries other than
information provisions would no longer will not impair the ability of any national national securities exchanges.35 In
provide that NYSE Arca may inspect the securities exchange registered under Section addition, it would contribute to the
books and records of NYSE Arca, LLC 6 of the Exchange Act that is directly or orderly operation of the Exchange by
or NYSE Arca Equities. However, the indirectly controlled by the Corporation adding clarity and transparency to the
proposed change would have no (each such national securities exchange so Exchange’s rules by eliminating obsolete
substantive effect, because pursuant to controlled, an ‘‘Exchange’’), any entity references to NYSE Arca Equities,
controlled by the Corporation that is not
NYSE Arca Rule 3.12 30 NYSE Arca itself an Exchange but that directly or
which has been merged out of existence.
would retain its authority over the indirectly controls an Exchange (each such As a result of the proposed use of
books and records of NYSE Arca, LLC, controlling entity, an ‘‘Intermediate Holding ‘‘Exchanges’’ instead of ‘‘U.S. Regulated
and NYSE Arca Equities no longer Company’’) or the Corporation to discharge Subsidiaries,’’ the confidential
exists. The NYSE, NYSE American, their [respective] responsibilities under the information provisions of the Governing
NYSE Arca and NYSE National do not Exchange Act and the rules and regulations Documents would no longer provide
have regulatory authority or oversight thereunder . . . . that any U.S. Regulated Subsidiary is
over each other. The Exchange does not propose to authorized to inspect the books and
The Exchange proposes the following make any other changes to the ICE records of another U.S. Regulated
additional changes to the provisions: Certificate. Subsidiary over which the first has
• In the ICE Holdings Bylaws, Article 2. Statutory Basis
regulatory authority or oversight,
VIII, Sections 8.1 and 8.2, and NYSE including that NYSE Arca may inspect
Holdings Operating Agreement, Article The Exchange believes that the the books and records of NYSE Arca,
XII, Sections 12.1 and 12.2, ‘‘U.S. proposed rule change is consistent with LLC or NYSE Arca Equities. The
Subsidiaries’ Confidential Information’’ Section 6(b) of the Exchange Act 32 in proposed change would add further
would be amended to ‘‘Exchange general, and with Section 6(b)(1) 33 in clarity and transparency to the
Confidential Information.’’ particular, in that it enables the Exchange’s rules without having a
• In the NYSE Holdings Operating Exchange to be so organized as to have substantive effect, as, pursuant to NYSE
Agreement, Article 1, Section 1.1, the the capacity to be able to carry out the Arca Rule 3.12, NYSE Arca would retain
definition of ‘‘U.S. Subsidiaries’ purposes of the Exchange Act and to its authority over the books and records
Confidential Information’’ would be comply, and to enforce compliance by of NYSE Arca, LLC, NYSE Arca Equities
deleted and the definition of ‘‘Exchange its exchange members and persons no longer exists and the NYSE, NYSE
Confidential Information’’ added. associated with its exchange members, American, NYSE Arca and NYSE
with the provisions of the Exchange Act, National do not have regulatory
Additional Proposed Changes to the the rules and regulations thereunder, authority or oversight over each other.
Governing Documents and the rules of the Exchange. The Exchange believes that the
In addition to the above, the Exchange In particular, the Exchange believes proposed use in the Governing
proposes that Article II of the ICE that the proposed amendments to Documents of the defined term
Holdings Certificate be updated to replace references to the U.S. Regulated ‘‘Intermediate Holding Company’’ in
include the name and building of its Subsidiaries and to the NYSE, NYSE place of lists of intermediate holding
registered office in the State of American, NYSE Arca, NYSE Arca, LLC companies would contribute to the
Delaware. In addition, conforming and NYSE Arca Equities with references orderly operation of the Exchange by
changes would be made to the title, to an ‘‘Exchange’’ or the ‘‘Exchanges,’’ adding clarity and transparency to the
recitals, date and signature line, as as appropriate, would contribute to the Exchange’s rules by eliminating
applicable, of the Governing orderly operation of the Exchange by references to entities that are not
Documents. adding clarity and transparency to the national securities exchanges without
Exchange’s rules by eliminating making a substantive change.
ICE Certificate references in the Governing Documents Similarly, the Exchange believes that
The Exchange proposes to make a to entities that are not national the proposed use of the defined term
non-substantive amendment to Article securities exchanges. The Exchange Act ‘‘Member’’ in place of lists of categories
V, Section A(3)(a) of the ICE Certificate. definition of ‘‘exchange’’ states that of members and permit holders in the
Due to an oversight, the text of the ICE ‘‘exchange’’ ‘‘includes the market place Limitation Provisions would simplify
Certificate approved by the ICE and the market facilities maintained by the provisions without substantive
shareholders at the ICE annual meeting such exchange.’’ 34 Accordingly, all change, avoiding exchange-by-exchange
omitted the word ‘‘respective’’ from market places and market facilities descriptions of categories of members
Article V, Section A(3)(a).31 To conform maintained by an Exchange would fall and permit holders, as each of the
within the definition of Exchange and categories currently listed is a
asabaliauskas on DSKBBXCHB2PROD with NOTICES
30 NYSE Arca Rule 3.12 provides, among other therefore would fall within the scope of ‘‘member’’ of an exchange within the
things, that the books and records of NYSE Arca, the Governing Documents. The meaning of Section 3(a)(3)(A) of the
LLC are deemed to be the books and records of Exchange notes that the proposed
NYSE Arca for purposes of and subject to oversight
pursuant to the Exchange Act and subject to 35 See CBOE Certificate, Art. Fifth, Sec. (a)(v), and
inspection and copying by NYSE Arca. See ICE Files/I/Ice-IR/quarterly-results/2016/proxy- Art. Sixth, Sec. (a)(ii)(A) (‘‘Regulated Securities
Bylaws, Art. VIII, Sec. 8.3. statement-2016.pdf. Exchange Subsidiaries’’); and Amended and
31 See Intercontinental Exchange, Inc. Notice of 32 15 U.S.C. 78f(b).
Restated Certificate of Incorporation of Bats Global
33 15 U.S.C. 78f(b)(1).
2017 Annual Meeting and Proxy Statement, at page Markets Holdings, Inc., Art. Fifth, Sec. (2)
A–5, available at https://ir.theice.com/∼/media/ 34 15 U.S.C. 78c(a)(1). (‘‘Exchange Subsidiaries’’).
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![55480 Federal Register / Vol. 82, No. 223 / Tuesday, November 21, 2017 / Notices
• Send an email to rule-comments@ SECURITIES AND EXCHANGE adopt initial and continued listing
sec.gov. Please include File Number SR– COMMISSION standards for subscription receipts.3
NYSE–2017–57 on the subject line. After approval, it was discovered that
[Release No. 34–82086; File No. SR–NYSE–
2017–58]
the proposed rule text attached as
Paper Comments Exhibit 5 to the Exchange’s Rule 19b–4
• Send paper comments in triplicate Self-Regulatory Organizations; New filing contained an error to the part of
to Secretary, Securities and Exchange York Stock Exchange LLC; Notice of the filing amending the listing fees in
Filing and Immediate Effectiveness of Section 902.06. The Exchange proposes
Commission, 100 F Street NE.,
Proposed Rule Change To Amend to correct the inadvertent error.
Washington, DC 20549–1090.
Section 902.06 of the NYSE Listed In connection with adopting initial
All submissions should refer to File Company Manual and continued listing standards for
Number SR–NYSE–2017–57. This file subscription receipts, the Exchange
number should be included on the November 15, 2017. amended Section 902.06 of the Manual
subject line if email is used. To help the Pursuant to Section 19(b)(1) of the to specify how listing fees for
Securities Exchange Act of 1934 (the subscription receipts would be charged.
Commission process and review your
‘‘Act’’),1 and Rule 19b–4 thereunder,2 Section 902.06 of the Manual sets forth
comments more efficiently, please use
notice is hereby given that on November listing fees for ‘‘short-term’’ securities,
only one method. The Commission will 1, 2017, New York Stock Exchange LLC
post all comments on the Commission’s i.e., securities with a life of seven years
(the ‘‘Exchange’’ or ‘‘NYSE’’) filed with or less. Because subscription receipts
Internet Web site (http://www.sec.gov/ the Securities and Exchange
rules/sro.shtml). Copies of the listed under Section 102.08 of the
Commission (‘‘Commission’’) the Manual have a maximum life of 12
submission, all subsequent proposed rule change as described in months, the Exchange stated in the
amendments, all written statements Items I and II below, which Items have Purpose Section of its proposed rule
with respect to the proposed rule been prepared by the Exchange. The change that it would amend Section
change that are filed with the Commission is publishing this notice to 902.06 to make explicit that such
Commission, and all written solicit comments on the proposed rule section would apply to subscription
communications relating to the change from interested persons. receipts. However, in drafting the
proposed rule change between the I. Self-Regulatory Organization’s proposed rule text contained in Exhibit
Commission and any person, other than Statement of the Terms of Substance of 5 to its Rule 19b–4 filing, the Exchange
those that may be withheld from the the Proposed Rule Change inadvertently included subscription
public in accordance with the receipts in a list of securities to which
provisions of 5 U.S.C. 552, will be The Exchange proposes to amend
Section 902.06 of the NYSE Listed Section 902.06 of the Manual does not
available for Web site viewing and apply. The Exchange now proposes to
Company Manual (the ‘‘Manual’’). The
printing in the Commission’s Public proposed rule change is available on the amend Section 902.06 to correct the
Reference Room, 100 F Street NE., Exchange’s Web site at www.nyse.com, error in the actual rule text that was
Washington, DC 20549, on official at the principal office of the Exchange, adopted to make clear that Section
business days between the hours of and at the Commission’s Public 902.06 does apply to subscription
10:00 a.m. and 3:00 p.m. Copies of the Reference Room. receipts.
filing also will be available for 2. Statutory Basis
inspection and copying at the principal II. Self-Regulatory Organization’s
office of the Exchange. All comments Statement of the Purpose of, and The Exchange believes that the
Statutory Basis for, the Proposed Rule proposed rule change is consistent with
received will be posted without change.
Change Section 6(b) of the Act,4 in general, and
Persons submitting comments are
cautioned that we do not redact or edit In its filing with the Commission, the furthers the objectives of Sections
self-regulatory organization included 6(b)(5) 5 of the Act, in particular, in that
personal identifying information from
statements concerning the purpose of, it is designed to promote just and
comment submissions. You should
and basis for, the proposed rule change equitable principles of trade, to foster
submit only information that you wish
and discussed any comments it received cooperation and coordination with
to make available publicly. All persons engaged in regulating, clearing,
submissions should refer to File on the proposed rule change. The text
of those statements may be examined at settling, processing information with
Number SR–NYSE–2017–57 and should respect to, and facilitating transactions
the places specified in Item IV below.
be submitted on or before December 12, in securities, to remove impediments to
The Exchange has prepared summaries,
2017. set forth in sections A, B, and C below, and perfect the mechanism of a free and
For the Commission, by the Division of of the most significant parts of such open market and a national market
Trading and Markets, pursuant to delegated statements. system, and, in general, to protect
authority.44 investors and the public interest. The
A. Self-Regulatory Organization’s Exchange believes that the proposed
Eduardo A. Aleman,
Statement of the Purpose of, and the amendment is consistent with the
Assistant Secretary. Statutory Basis for, the Proposed Rule protection of investors because it seeks
[FR Doc. 2017–25138 Filed 11–20–17; 8:45 am] Change to amend the Manual to accurately
asabaliauskas on DSKBBXCHB2PROD with NOTICES
BILLING CODE 8011–01–P reflect how the Exchange intends to
1. Purpose
On October 11, 2017, the Securities charge listing fees for subscription
and Exchange Commission (the receipts as stated in the description of
‘‘Commission’’) approved the 3 See Securities Exchange Act Release No. 81856
Exchange’s proposed rule change to (October 11, 2017), 82 FR 48296 (October 17, 2017)
(SR–NYSE–2017–31).
1 15 U.S.C. 78s(b)(1). 4 15 U.S.C. 78f(b).
44 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. 5 15 U.S.C. 78f(b)(5).
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Document Created: 2017-11-21 00:42:56
Document Modified: 2017-11-21 00:42:56
| 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 55474 |
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