82 FR 9258 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Order Approving Proposed Rule Change, as Modified by Amendment No. 1, in Connection With a Proposed Acquisition of the Exchange by NYSE Group, Inc.

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 22 (February 3, 2017)

Page Range		9258-9259
FR Document		2017-02263
Federal Register, Volume 82 Issue 22 (Friday, February 3, 2017)
[Federal Register Volume 82, Number 22 (Friday, February 3, 2017)]
[Notices]
[Pages 9258-9259]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-02263]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79902; File No. SR-NSX-2016-16]


Self-Regulatory Organizations; National Stock Exchange, Inc.; 
Order Approving Proposed Rule Change, as Modified by Amendment No. 1, 
in Connection With a Proposed Acquisition of the Exchange by NYSE 
Group, Inc.

January 30, 2017.

I. Introduction

    On December 22, 2016, National Stock Exchange, Inc. (``NSX'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) \1\ of the Securities 
Exchange Act of 1934 (``Act''),\2\ and Rule 19b-4 thereunder,\3\ a 
proposed rule change to make certain amendments to its corporate 
governance documents and rules, and the corporate governance documents 
of NYSE Group, Inc. (``NYSE Group''), NYSE Holdings LLC (``NYSE 
Holdings''), Intercontinental Exchange Holdings, Inc. (``ICE 
Holdings''), and Intercontinental Exchange, Inc. (``ICE'') in order to 
effectuate a proposed transaction (the ``Transaction'') in which the 
Exchange will become a wholly-owned subsidiary of NYSE Group. The 
proposed rule change was published for comment in the Federal Register 
on December 30, 2016.\4\ On January 23, 2017, the Exchange submitted 
Amendment No. 1 to the proposed rule change.\5\ The Commission received 
no comments on the proposal. This order approves the proposal, as 
modified by Amendment No. 1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ See Securities Exchange Act Release No. 79684 (December 23, 
2016), 81 FR 96552 (SR-NSX-2016-16) (``Notice'').
    \5\ In Amendment No. 1, the Exchange corrected a technical error 
in the proposed Seventh Amended and Restated Bylaws of ICE. 
Specifically, the Exchange replaced a reference in Section 
12.1(a)(1) of Article XII of the ICE Bylaws to ``the Amended and 
Restated Certificate of Incorporation of the Corporation'' with a 
reference to ``these bylaws.'' Amendment No. 1 was technical in 
nature and therefore does not need to be published for comment.
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II. Description of the Proposal

    On December 14, 2016, ICE entered into an agreement with the 
Exchange pursuant to which its wholly-owned subsidiary, NYSE Group, 
will acquire all of the outstanding capital stock of the Exchange (the 
``Acquisition''). As a result of the Acquisition, the Exchange will be 
renamed NYSE National, Inc. (``NYSE National'') and will be operated as 
a wholly-owned subsidiary of NYSE Group. NYSE Group is a wholly-owned 
subsidiary of NYSE Holdings, which is in turn 100% owned by ICE 
Holdings. ICE is a public company listed on the New York Stock Exchange 
LLC (the ``NYSE''), and owns 100% of ICE Holdings.\6\ Following the 
Acquisition, the Exchange will continue to be registered as a national 
securities exchange.\7\ According to the Exchange, as it does today, 
the Exchange will continue to have separate rules, membership rosters, 
and listings that will be distinct from the rules, membership rosters, 
and listings of the three other registered national securities 
exchanges owned by NYSE Group, namely, the NYSE, NYSE MKT LLC (``NYSE 
MKT''), and NYSE Arca, Inc. (``NYSE Arca'') (together, the ``NYSE 
Exchanges'').\8\
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    \6\ See Notice, supra note 4, at 96552.
    \7\ See id.
    \8\ See id.
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    In connection with the Acquisition, the Exchange proposes to amend 
its Certificate of Incorporation and Third Amended and Restated Bylaws. 
In addition, the Exchange proposes to amend certain corporate 
governance documents of NYSE Group, NYSE Holdings, ICE Holdings and 
ICE,\9\ such that the conditions in those documents are equally 
applicable to the NYSE NSX.\10\ According to the Exchange, the

[[Page 9259]]

amendments would reflect the Exchange's proposed new ownership and, in 
certain cases, align the Exchange's governance provisions to those of 
other NYSE Exchanges.\11\
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    \9\ The NYSE Exchanges filed proposed rule changes, which 
propose similar amendments to their respective governance documents. 
See Securities Exchange Act Release Nos. 79671 (December 22, 2016), 
81 FR 96128 (SR-NYSE-2016-90); 79678 (December 22, 2016), 81 FR 
96102 (May 16, 2016) (SR-NYSEArca-2016-167); and 79675 (December 22, 
2016), 81 FR 96128 (May 16, 2016) (SR-NYSEMKT-2016-122).
    \10\ See Securities Exchange Act Release No. 70210 (August 15, 
2013), 78 FR 51758 (August 21, 2013) (approving rule changes related 
to NYSE Euronext becoming a wholly owned subsidiary of ICE (then 
called IntercontinentalExchange Group, Inc.)).
    \11\ See note 9. The proposed changes to the governance 
documents, NSX Rules and fee schedule are set forth in greater 
detail in the Notice. See Notice, supra note 4, at 96553-63.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change, as modified by Amendment No. 1, is consistent with the 
requirements of Section 6 of the Act \12\ and the rules and regulations 
thereunder applicable to a national securities exchange.\13\ In 
particular, the Commission finds that the proposed rule change is 
consistent with Sections 6(b)(1) and (3) of the Act,\14\ which, among 
other things, require a national securities exchange to be so organized 
and have the capacity to be able to carry out the purposes of the Act, 
and to enforce compliance by its members and persons associated with 
its members with the provisions of the Act, the rules and regulations 
thereunder, and the rules of the exchange, and assure the fair 
representation of its members in the selection of its directors and 
administration of its affairs, and provide that one or more directors 
shall be representative of issuers and investors and not be associated 
with a member of the exchange, broker, or dealer. The Commission also 
finds that the proposal is consistent with Section 6(b)(5) of the 
Act,\15\ which requires that the rules of an exchange be designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest.\16\
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    \12\ 15 U.S.C. 78f.
    \13\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \14\ 15 U.S.C. 78f(b)(1) and (b)(3).
    \15\ 15 U.S.C. 78f(b)(5).
    \16\ The text of the proposed rule change is consistent with 
Sections 6(b)(1), (3) and (5) of the Act. However, the Commission 
notes that the Exchange must continue to comply with the provisions 
of the Commission's Cease and Desist Order. See Securities Exchange 
Act Release No. 51714 (May 19, 2005).
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    According to the Exchange, the proposed rule change consists of (i) 
non-substantive changes that will conform terminology of the Exchange 
to that of the NYSE Exchanges, and (ii) substantive and/or procedural 
changes that are designed to conform the Exchange's rules and 
procedures to those of other NYSE Exchanges.\17\ The Exchange has 
represented to the Commission that the proposed rule change presents no 
novel issues, as all of the substantive and/or procedural changes are 
derived from existing rules of other NYSE Exchanges. Furthermore, the 
Exchange has made the following representations:
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    \17\ See Notice, supra note 4, at 96563-64.
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     The proposed rule change would continue the requirement in 
the Exchange's Bylaws that an independent board committee oversees the 
adequacy and effectiveness of the performance of the Exchange's self-
regulatory responsibilities; \18\
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    \18\ See id. at 96563.
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     The Regulatory Oversight Committee would be similar in 
composition and function to committees of other self-regulatory 
organizations, and would be similarly designed to (i) ensure the 
adequacy and effectiveness of the Exchange's regulatory and self-
regulatory responsibilities; and (ii) to assist the Board and any other 
committees of the Board in reviewing the regulatory plan and the 
overall effectiveness of the Exchange's regulatory functions.\19\
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    \19\ See id.
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     The proposed rule change is not inconsistent with the 
Order Instituting Administrative and Cease-and-Desist Proceedings 
Pursuant to Sections 19(h) and 21C of the Securities Exchange Act of 
1934, Making Findings, and Imposing Remedial Sanctions and Cease-and-
Desist Order, entered by the Commission on May 19, 2005.\20\
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    \20\ See id. at 96553. See also note 16.
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     The changes to the corporate and governance structure will 
place the Exchange in a better position to improve its technology and 
engage in value-enhancing transactions that will enable the Exchange to 
more effectively participate and compete in the marketplace.\21\
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    \21\ See id. at 96554.
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     The Exchange's proposed changes to its corporate 
governance structure are designed to align its structure with that of 
the NYSE Exchanges to promote a consistent approach to corporate 
governance, and to simplify and create greater consistency with the 
organizational documents and governance practices of the NYSE 
Exchange.\22\
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    \22\ See id. at 96552-53.
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    The Exchange has represented to the Commission that it believes 
that the benefits of aligning its corporate documents to those of other 
NYSE Exchanges outweigh the costs, if any, to leaving its rules as is 
and being the sole outlier among the NYSE Exchanges. The Commission 
also notes that it received no comments on the proposed rule change. 
Finally, the Commission believes that uniformity of terminology as well 
as corporate governance structure among the wholly owned subsidiaries 
of NYSE Group, including the NYSE Exchanges and the Exchange, to the 
extent possible, should allow for a more streamlined, consistent, and 
effective approach to both compliance and surveillance in furtherance 
of the rules of the Exchange and the federal securities laws.

IV. Conclusion

    For the foregoing reasons, the Commission finds that the proposed 
rule change, as modified by Amendment No. 1, is consistent with the Act 
and the rules and regulations thereunder applicable to a national 
securities exchange.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act 
\23\ that the proposed rule change (SR-NSX-2016-16), as modified by 
Amendment No.1, be, and hereby is, approved.
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    \23\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-02263 Filed 2-2-17; 8:45 am]
 BILLING CODE 8011-01-P
9258 Federal Register / Vol. 82, No. 22 / Friday, February 3, 2017 / Notices

Commission summarily may the Commission does not edit personal received no comments on the proposal.
temporarily suspend such rule change if identifying information from This order approves the proposal, as
it appears to the Commission that such submissions. You should submit only modified by Amendment No. 1.
action is necessary or appropriate in the information that you wish to make
II. Description of the Proposal
public interest, for the protection of available publicly. All submissions
investors, or otherwise in furtherance of should refer to File Number SR– On December 14, 2016, ICE entered
the purposes of the Act. If the NYSEMKT–2017–03 and should be into an agreement with the Exchange
Commission takes such action, the submitted on or before February 24, pursuant to which its wholly-owned
Commission shall institute proceedings 2017. subsidiary, NYSE Group, will acquire
under Section 19(b)(2)(B) 18 of the Act to all of the outstanding capital stock of
For the Commission, by the Division of
determine whether the proposed rule Trading and Markets, pursuant to delegated the Exchange (the ‘‘Acquisition’’). As a
change should be approved or authority.19 result of the Acquisition, the Exchange
disapproved. Eduardo A. Aleman, will be renamed NYSE National, Inc.
Assistant Secretary.
(‘‘NYSE National’’) and will be operated
IV. Solicitation of Comments as a wholly-owned subsidiary of NYSE
[FR Doc. 2017–02259 Filed 2–2–17; 8:45 am]
Interested persons are invited to Group. NYSE Group is a wholly-owned
BILLING CODE 8011–01–P
submit written data, views, and subsidiary of NYSE Holdings, which is
arguments concerning the foregoing, in turn 100% owned by ICE Holdings.
including whether the proposed rule ICE is a public company listed on the
SECURITIES AND EXCHANGE
change is consistent with the Act. New York Stock Exchange LLC (the
COMMISSION
Comments may be submitted by any of ‘‘NYSE’’), and owns 100% of ICE
the following methods: [Release No. 34–79902; File No. SR–NSX– Holdings.6 Following the Acquisition,
2016–16] the Exchange will continue to be
Electronic Comments
registered as a national securities
• Use the Commission’s Internet Self-Regulatory Organizations; exchange.7 According to the Exchange,
comment form (http://www.sec.gov/ National Stock Exchange, Inc.; Order as it does today, the Exchange will
rules/sro.shtml); or Approving Proposed Rule Change, as continue to have separate rules,
• Send an email to rule-comments@ Modified by Amendment No. 1, in
membership rosters, and listings that
sec.gov. Please include File Number SR– Connection With a Proposed
will be distinct from the rules,
NYSEMKT–2017–03 on the subject line. Acquisition of the Exchange by NYSE
membership rosters, and listings of the
Group, Inc.
Paper Comments three other registered national securities
January 30, 2017. exchanges owned by NYSE Group,
• Send paper comments in triplicate
namely, the NYSE, NYSE MKT LLC
to Secretary, Securities and Exchange I. Introduction (‘‘NYSE MKT’’), and NYSE Arca, Inc.
Commission, 100 F Street NE., On December 22, 2016, National (‘‘NYSE Arca’’) (together, the ‘‘NYSE
Washington, DC 20549–1090. Stock Exchange, Inc. (‘‘NSX’’ or the Exchanges’’).8
All submissions should refer to File ‘‘Exchange’’) filed with the Securities In connection with the Acquisition,
Number SR–NYSEMKT–2017–03. This and Exchange Commission the Exchange proposes to amend its
file number should be included on the (‘‘Commission’’), pursuant to Section Certificate of Incorporation and Third
subject line if email is used. To help the 19(b)(1) 1 of the Securities Exchange Act Amended and Restated Bylaws. In
Commission process and review your of 1934 (‘‘Act’’),2 and Rule 19b–4 addition, the Exchange proposes to
comments more efficiently, please use thereunder,3 a proposed rule change to amend certain corporate governance
only one method. The Commission will make certain amendments to its documents of NYSE Group, NYSE
post all comments on the Commission’s corporate governance documents and Holdings, ICE Holdings and ICE,9 such
Internet Web site (http://www.sec.gov/ rules, and the corporate governance that the conditions in those documents
rules/sro.shtml). Copies of the documents of NYSE Group, Inc. (‘‘NYSE are equally applicable to the NYSE
submission, all subsequent Group’’), NYSE Holdings LLC (‘‘NYSE NSX.10 According to the Exchange, the
amendments, all written statements Holdings’’), Intercontinental Exchange
with respect to the proposed rule Holdings, Inc. (‘‘ICE Holdings’’), and and Restated Bylaws of ICE. Specifically, the
change that are filed with the Intercontinental Exchange, Inc. (‘‘ICE’’) Exchange replaced a reference in Section 12.1(a)(1)
Commission, and all written in order to effectuate a proposed of Article XII of the ICE Bylaws to ‘‘the Amended
and Restated Certificate of Incorporation of the
communications relating to the transaction (the ‘‘Transaction’’) in Corporation’’ with a reference to ‘‘these bylaws.’’
proposed rule change between the which the Exchange will become a Amendment No. 1 was technical in nature and
Commission and any person, other than wholly-owned subsidiary of NYSE therefore does not need to be published for
those that may be withheld from the Group. The proposed rule change was comment.
6 See Notice, supra note 4, at 96552.
public in accordance with the published for comment in the Federal 7 See id.
provisions of 5 U.S.C. 552, will be Register on December 30, 2016.4 On 8 See id.
available for Web site viewing and January 23, 2017, the Exchange 9 The NYSE Exchanges filed proposed rule
printing in the Commission’s Public submitted Amendment No. 1 to the changes, which propose similar amendments to
Reference Room, 100 F Street NE., proposed rule change.5 The Commission their respective governance documents. See
Washington, DC 20549 on official Securities Exchange Act Release Nos. 79671
asabaliauskas on DSK3SPTVN1PROD with NOTICES

(December 22, 2016), 81 FR 96128 (SR–NYSE–
business days between the hours of 19 17 CFR 200.30–3(a)(12).
2016–90); 79678 (December 22, 2016), 81 FR 96102
10:00 a.m. and 3:00 p.m. Copies of the 1 15 U.S.C. 78s(b)(1). (May 16, 2016) (SR–NYSEArca–2016–167); and
2 15 U.S.C. 78a.
filing also will be available for 79675 (December 22, 2016), 81 FR 96128 (May 16,
3 17 CFR 240.19b–4.
inspection and copying at the principal 2016) (SR–NYSEMKT–2016–122).
4 See Securities Exchange Act Release No. 79684 10 See Securities Exchange Act Release No. 70210
office of the Exchange. All comments (December 23, 2016), 81 FR 96552 (SR–NSX–2016– (August 15, 2013), 78 FR 51758 (August 21, 2013)
received will be posted without change; 16) (‘‘Notice’’). (approving rule changes related to NYSE Euronext
5 In Amendment No. 1, the Exchange corrected a becoming a wholly owned subsidiary of ICE (then
18 15 U.S.C. 78s(b)(2)(B). technical error in the proposed Seventh Amended called IntercontinentalExchange Group, Inc.)).

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Federal Register / Vol. 82, No. 22 / Friday, February 3, 2017 / Notices 9259

amendments would reflect the those of other NYSE Exchanges.17 The outlier among the NYSE Exchanges. The
Exchange’s proposed new ownership Exchange has represented to the Commission also notes that it received
and, in certain cases, align the Commission that the proposed rule no comments on the proposed rule
Exchange’s governance provisions to change presents no novel issues, as all change. Finally, the Commission
those of other NYSE Exchanges.11 of the substantive and/or procedural believes that uniformity of terminology
III. Discussion and Commission changes are derived from existing rules as well as corporate governance
Findings of other NYSE Exchanges. Furthermore, structure among the wholly owned
the Exchange has made the following subsidiaries of NYSE Group, including
After careful review, the Commission representations: the NYSE Exchanges and the Exchange,
finds that the proposed rule change, as • The proposed rule change would to the extent possible, should allow for
modified by Amendment No. 1, is continue the requirement in the a more streamlined, consistent, and
consistent with the requirements of Exchange’s Bylaws that an independent effective approach to both compliance
Section 6 of the Act 12 and the rules and board committee oversees the adequacy and surveillance in furtherance of the
regulations thereunder applicable to a and effectiveness of the performance of rules of the Exchange and the federal
national securities exchange.13 In the Exchange’s self-regulatory securities laws.
particular, the Commission finds that responsibilities; 18
the proposed rule change is consistent • The Regulatory Oversight IV. Conclusion
with Sections 6(b)(1) and (3) of the Committee would be similar in For the foregoing reasons, the
Act,14 which, among other things, composition and function to committees Commission finds that the proposed
require a national securities exchange to of other self-regulatory organizations, rule change, as modified by Amendment
be so organized and have the capacity and would be similarly designed to (i) No. 1, is consistent with the Act and the
to be able to carry out the purposes of ensure the adequacy and effectiveness rules and regulations thereunder
the Act, and to enforce compliance by of the Exchange’s regulatory and self- applicable to a national securities
its members and persons associated regulatory responsibilities; and (ii) to exchange.
with its members with the provisions of assist the Board and any other It is therefore ordered, pursuant to
the Act, the rules and regulations committees of the Board in reviewing Section 19(b)(2) of the Act 23 that the
thereunder, and the rules of the the regulatory plan and the overall proposed rule change (SR–NSX–2016–
exchange, and assure the fair effectiveness of the Exchange’s 16), as modified by Amendment No.1,
representation of its members in the regulatory functions.19 be, and hereby is, approved.
selection of its directors and • The proposed rule change is not
administration of its affairs, and provide For the Commission, by the Division of
inconsistent with the Order Instituting Trading and Markets, pursuant to delegated
that one or more directors shall be Administrative and Cease-and-Desist authority.24
representative of issuers and investors Proceedings Pursuant to Sections 19(h) Eduardo A. Aleman,
and not be associated with a member of and 21C of the Securities Exchange Act
the exchange, broker, or dealer. The Assistant Secretary.
of 1934, Making Findings, and Imposing [FR Doc. 2017–02263 Filed 2–2–17; 8:45 am]
Commission also finds that the proposal Remedial Sanctions and Cease-and-
is consistent with Section 6(b)(5) of the Desist Order, entered by the
BILLING CODE 8011–01–P
Act,15 which requires that the rules of Commission on May 19, 2005.20
an exchange be designed to promote just • The changes to the corporate and
and equitable principles of trade, to SECURITIES AND EXCHANGE
governance structure will place the COMMISSION
remove impediments to and perfect the Exchange in a better position to improve
mechanism of a free and open market its technology and engage in value- [Release No. 34–79894; File No. SR–Phlx–
and a national market system, and, in enhancing transactions that will enable 2017–04]
general, to protect investors and the the Exchange to more effectively
public interest.16 participate and compete in the Self-Regulatory Organizations;
According to the Exchange, the NASDAQ PHLX LLC; Notice of Filing of
marketplace.21
proposed rule change consists of (i) non-
• The Exchange’s proposed changes Proposed Rule Change To Permit the
substantive changes that will conform Listing and Trading of P.M.-Settled
to its corporate governance structure are
terminology of the Exchange to that of NASDAQ–100 Index® Options on a
designed to align its structure with that
the NYSE Exchanges, and (ii) Pilot Basis
of the NYSE Exchanges to promote a
substantive and/or procedural changes
consistent approach to corporate
that are designed to conform the January 30, 2017.
governance, and to simplify and create
Exchange’s rules and procedures to Pursuant to Section 19(b)(1) of the
greater consistency with the
organizational documents and Securities Exchange Act of 1934 (the
11 See note 9. The proposed changes to the
governance practices of the NYSE ‘‘Act’’),1 and Rule 19b–4 thereunder,2
governance documents, NSX Rules and fee
schedule are set forth in greater detail in the Notice. Exchange.22 notice is hereby given that on January
See Notice, supra note 4, at 96553–63. The Exchange has represented to the 18, 2017, NASDAQ PHLX LLC (‘‘Phlx’’
12 15 U.S.C. 78f.
Commission that it believes that the or ‘‘Exchange’’) filed with the Securities
13 In approving this proposed rule change, the
benefits of aligning its corporate and Exchange Commission (‘‘SEC’’ or
Commission has considered the proposed rule’s ‘‘Commission’’) the proposed rule
impact on efficiency, competition, and capital documents to those of other NYSE
asabaliauskas on DSK3SPTVN1PROD with NOTICES

formation. See 15 U.S.C. 78c(f). Exchanges outweigh the costs, if any, to change as described in Items I, II, and
14 15 U.S.C. 78f(b)(1) and (b)(3).
leaving its rules as is and being the sole III below, which Items have been
15 15 U.S.C. 78f(b)(5). prepared by the Exchange. The
16 The text of the proposed rule change is
17 See Notice, supra note 4, at 96563–64. Commission is publishing this notice to
consistent with Sections 6(b)(1), (3) and (5) of the 18 See id. at 96563.
Act. However, the Commission notes that the 19 See id. 23 15
Exchange must continue to comply with the U.S.C. 78s(b)(2).
20 See id. at 96553. See also note 16. 24 17 CFR 200.30–3(a)(12).
provisions of the Commission’s Cease and Desist
21 See id. at 96554. 1 15 U.S.C. 78s(b)(1).
Order. See Securities Exchange Act Release No.
51714 (May 19, 2005). 22 See id. at 96552–53. 2 17 CFR 240.19b–4.

VerDate Sep<11>2014 17:26 Feb 02, 2017 Jkt 241001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\03FEN1.SGM 03FEN1
Document Created: 2018-02-01 14:34:37
Document Modified: 2018-02-01 14:34:37
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 9258