83 FR 60536 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Article II, Section 2.03(h)(ii) and Article VI of Its Operating Agreement
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 83, Issue 227 (November 26, 2018)
Federal Register Volume 83, Issue 227 (November 26, 2018)
| Page Range | 60536-60539 | |
| FR Document | 2018-25738 |
[Federal Register Volume 83, Number 227 (Monday, November 26, 2018)] [Notices] [Pages 60536-60539] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-25738] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-84636; File No. SR-NYSEAMER-2018-49] Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Article II, Section 2.03(h)(ii) and Article VI of Its Operating Agreement November 20, 2018. Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given that on November 9, 2018, NYSE American LLC (``Exchange'' or ``NYSE American'') filed with the Securities and Exchange Commission (``Commission'') the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. 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. --------------------------------------------------------------------------- [[Page 60537]] I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Article II, Section 2.03(h)(ii) and Article VI of its operating agreement to harmonize certain provisions with similar provisions in the governing documents of the Exchange's national securities exchange affiliates and parent companies, as well as make clarifying, technical and conforming changes. The proposed rule change is available on the Exchange's website 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 (1) Generally The Exchange proposes to amend Article II, Section 2.03(h)(ii) (Board) and Article VI (Indemnification and Exculpation) of the Eleventh Amended and Restated Operating Agreement of the Exchange (``Operating Agreement'') to harmonize certain provisions with similar provisions in the governing documents of the Exchange's national securities exchange affiliates \4\ and parent companies, as well as make clarifying, technical and conforming changes. --------------------------------------------------------------------------- \4\ The Exchange has four registered national securities exchange affiliates: the New York Stock Exchange LLC (``NYSE''), NYSE Arca, Inc. (``NYSE Arca''), NYSE National, Inc. (``NYSE National''), and Chicago Stock Exchange, Inc. (``CHX'' and together with the Exchange, NYSE, NYSE Arca, and NYSE National, the ``NYSE Group Exchanges''). CHX has filed to change its name to NYSE Chicago, Inc. See Exchange Act Release No. 84494 (October 26, 2018), 83 FR 54953 (November 1, 2018) (SR-CHX-2018-05) (``NYSE Chicago Release'') (notice of filing and immediate effectiveness of proposal to reflect name changes of the Exchange and its direct parent company and to amend certain corporate governance provisions). The rule changes set forth in the NYSE Chicago Release will become operative upon the Second Amended and Restated Certificate of Incorporation of Chicago Stock Exchange, Inc. (``NYSE Chicago Certificate'') becoming effective pursuant to its filing with the Secretary of State of the State of Delaware. --------------------------------------------------------------------------- The Exchange is owned by NYSE Group, Inc., which in turn is indirectly wholly owned by NYSE Holdings LLC (``NYSE Holdings''). NYSE Holdings is a wholly owned subsidiary of Intercontinental Holdings, Inc. (``ICE Holdings''), which is in turn wholly owned by the Intercontinental Exchange, Inc. (``ICE'').\5\ --------------------------------------------------------------------------- \5\ See Exchange Act Release No. 72156 (May 13, 2014), 79 FR 28782 (May 19, 2014) (SR-NYSEMKT-2014-41) (notice of filing and immediate effectiveness of proposed rule change relating to name changes of its ultimate parent and its indirect parents). --------------------------------------------------------------------------- The Exchange operates as a separate self-regulatory organization and has rules, membership rosters and listings distinct from the rules, membership rosters and listings of the other NYSE Group Exchanges. At the same time, however, the Exchange believes it is important for each of the NYSE Group Exchanges to have a consistent approach to corporate governance in certain matters, to simplify complexity and create greater consistency among the NYSE Group Exchanges.\6\ The proposed amendments to the Operating Agreement reflect the expectation that the Exchange will continue to be operated with a governance structure substantially similar to that of other NYSE Group Exchanges. --------------------------------------------------------------------------- \6\ See NYSE Chicago Release, supra note 4, at 54953. --------------------------------------------------------------------------- The proposed amendment to Article II, Section 2.03(h)(ii) is based on the Second Amended and Restated By-Laws of NYSE Chicago, Inc. (``NYSE Chicago Bylaws'').\7\ The proposed amendments to Article VI are based on the Eighth Amended and Restated Bylaws of Intercontinental Exchange, Inc. (``ICE Bylaws'') and the Sixth Amended and Restated Bylaws of Intercontinental Exchange Holdings, Inc. (``ICE Holdings Bylaws''). --------------------------------------------------------------------------- \7\ The NYSE Chicago Bylaws will become operative when the NYSE Chicago Certificate becomes effective pursuant to its filing with the Secretary of State of the State of Delaware. Id. --------------------------------------------------------------------------- The Exchange proposes to amend the Operating Agreement as follows. Article II, Section 2.03(h)(ii) Article II, Section 2.03(h)(ii) establishes the powers and responsibilities of the Regulatory Oversight Committee (``ROC''), and is substantially the same as the related provisions in the governing documents of the other NYSE Group Exchanges.\8\ Among other things, the provision states that ``[t]he Board may, on affirmative vote of a majority of directors, at any time remove a member of the ROC for cause.'' The Exchange proposes to add language clarifying that the majority affirmative vote requirement is based on the ``directors then in office,'' as opposed to total number of seats on the Board. The change would be consistent with Article IV, Section 6 of the NYSE Chicago Bylaws.\9\ --------------------------------------------------------------------------- \8\ See Eleventh Amended and Restated Operating Agreement of New York Stock Exchange LLC, Article II, Section 2.03(h)(ii); NYSE Arca Rule 3.3; Fifth Amended and Restated Bylaws of NYSE National, Inc., Article V, Section 5.6; NYSE Chicago Bylaws, Article IV, Section 6. \9\ See NYSE Chicago Release, supra note 4, at 54961. The Exchange understands that the NYSE, NYSE National and NYSE Arca propose to file similar changes to their respective ROC provisions. --------------------------------------------------------------------------- Article VI Section 6.02 (Indemnification) Current Section 6.02 includes provisions related to indemnification by the Exchange. As a wholly-owned subsidiary of ICE, the Exchange believes it appropriate to harmonize the Exchange's indemnification provisions with those of ICE and the Exchange's intermediate holding company, ICE Holdings.\10\ The same change was made to Article VI of the NYSE Chicago Bylaws.\11\ --------------------------------------------------------------------------- \10\ See ICE Bylaws, Article X, Section 10.6, and ICE Holdings Bylaws, Article X, Section 10.6. \11\ See NYSE Chicago Release, supra note 4, at 54962-54963. The Exchange understands that the NYSE, NYSE National and NYSE Arca propose to file similar changes to their respective indemnification provisions. --------------------------------------------------------------------------- Accordingly, the Exchange proposes to delete the text of Section 6.02 in its entirety and replace it with proposed text that is substantially similar to the CHX, ICE and ICE Holdings provisions, with the exception of changes to be consistent with the Operating Agreement's terminology.\12\ The proposed text follows: --------------------------------------------------------------------------- \12\ For example, proposed Section 6.02 uses ``officer'' instead of ``Senior Officers,'' ``Company'' instead of ``Corporation,'' and ``Section 6.02'' instead of ``Section 10.6.'' --------------------------------------------------------------------------- (a) The Company shall, to the fullest extent permitted by Law (as defined below), as such Law may be amended and supplemented from time to time, indemnify any director or officer made, or threatened to be made, a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of being a director or officer of the Company or a predecessor company or, at the Company's request, a director, officer, partner, member, employee or agent of another entity; provided, however, that the Company shall indemnify any director or officer in connection with a proceeding initiated by such person [[Page 60538]] only if such proceeding was authorized in advance by the Board of Directors of the Company. The indemnification provided for in this Section 6.02 shall: (i) Not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement or vote of stockholders or disinterested directors or otherwise, both as to action in their official capacities and as to action in another capacity while holding such office; (ii) continue as to a person who has ceased to be a director or officer; and (iii) inure to the benefit of the heirs, executors and administrators of an indemnified person. (b) Expenses incurred by any such person in defending a civil or criminal action, suit or proceeding by reason of the fact that he is or was a director or officer of the Company (or was serving at the Company's request as a director, officer, partner, member, employee or agent of another entity) shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company as authorized by Law. Notwithstanding the foregoing, the Company shall not be required to advance such expenses to a person who is a party to an action, suit or proceeding brought by the Company and approved by a majority of the Board of Directors of the Company that alleges willful misappropriation of corporate assets by such person, disclosure of confidential information in violation of such person's fiduciary or contractual obligations to the Company or any other willful and deliberate breach in bad faith of such person's duty to the Company or its stockholders. (c) The foregoing provisions of this Section 6.02 shall be deemed to be a contract between the Company and each director or officer who serves in such capacity at any time while this bylaw is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts. The rights provided to any person by this bylaw shall be enforceable against the Company by such person, who shall be presumed to have relied upon it in serving or continuing to serve as a director or officer or in such other capacity as provided above. (d) The Board of Directors in its discretion shall have power on behalf of the Company to indemnify any person, other than a director or officer, made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person, or his or her testator or intestate, is or was an officer, employee or agent of the Company or, at the Company's request, is or was serving as a director, officer, partner, member, employee or agent of another company or other entity. (e) For purposes of this Section 6.02, ``Law'' shall mean the laws governing the indemnification of, and advancement of expenses to, directors, officers, employees and agents of Delaware corporations, including Section 145 of the General Corporation Law of the State of Delaware (``Section 145''), with such laws being applicable to the Exchange as if the Exchange were a Delaware corporation. To assure indemnification under this Section 6.02 of all directors, officers, employees and agents who are determined by the Company or otherwise to be or to have been ``fiduciaries'' of any employee benefit plan of the Company that may exist from time to time, Section 145 shall, for the purposes of this Section 6.02, be interpreted as follows: An ``other enterprise'' shall be deemed to include such an employee benefit plan, including without limitation, any plan of the Company that is governed by the Act of Congress entitled ``Employee Retirement Income Security Act of 1974,'' as amended from time to time; the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to such Act of Congress shall be deemed ``fines.'' Section 6.03 (Non Exclusivity of Rights) Current Section 6.03 states that the rights to indemnification and the payment of expenses conferred are not exclusive of any other right a person has. Because the non-exclusivity of rights would now be addressed in the final sentence of proposed Section 6.02(a), the Exchange proposes to delete Section 6.03 in its entirety. The deletion would be consistent with the indemnity provisions of the ICE, ICE Holdings and NYSE Chicago Bylaws, which do not have separate provisions regarding the non-exclusivity of rights.\13\ --------------------------------------------------------------------------- \13\ See ICE Bylaws, Article X; ICE Holdings Bylaws, Article X; and NYSE Chicago Bylaws, Article VI. --------------------------------------------------------------------------- The remaining sections of Article VI would be renumbered accordingly. Additional Proposed Amendments The Exchange proposes to make technical and conforming changes to the title, recitals and signature page of the Operating Agreement.\14\ --------------------------------------------------------------------------- \14\ The Operating Agreement was last amended in March 2018. See Exchange Act Release No. 13161 (March 22, 2018), 83 FR 13161 (March 27, 2018) (SR-NYSEAMER-2018-10); see also Exhibit 5B to SR-NYSEAMER- 2018-10 (March 13, 2018). --------------------------------------------------------------------------- 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act,\15\ in general, and furthers the objectives of Section 6(b)(1) \16\ in particular, in that it enables the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act and to comply, and to enforce compliance by its exchange members and persons associated with its exchange members, with the provisions of the Exchange Act, the rules and regulations thereunder, and the rules of the Exchange. The Exchange also believes that the proposed rule change is consistent with Section 6(b)(5) of the Exchange Act,\17\ in that it 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 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. --------------------------------------------------------------------------- \15\ 15 U.S.C. 78f(b). \16\ 15 U.S.C. 78f(b)(1). \17\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- The Exchange believes that the proposed amendments to the Operating Agreement would contribute to the orderly operation of the Exchange and would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Exchange Act and comply with the provisions of the Exchange Act by its members and persons associated with members. The proposed changes would create greater conformity between the ROC and indemnification provisions of the Operating Agreement and those of the governing documents of CHX, ICE and ICE Holdings. The Exchange believes that such conformity would streamline the NYSE Group Exchanges' corporate [[Page 60539]] processes, create more equivalent governance processes among them, and also provide clarity to the Exchange's members, which is beneficial to both investors and the public interest. At the same time, the Exchange will continue to operate as a separate self-regulatory organization and to have rules, membership rosters and listings distinct from the rules, membership rosters and listings of the other NYSE Group Exchanges. For the same reason, the Exchange believes that the greater consistency among the governing documents of the NYSE Group Exchanges, ICE and ICE Holdings would promote the maintenance of a fair and orderly market, the protection of investors and the protection of the public interest. Indeed, the proposed amendments would make the corporate requirements and administrative processes relating to the Board and ROC more similar to those of CHX, which have been established as fair and designed to protect investors and the public interest.\18\ --------------------------------------------------------------------------- \18\ See, e.g. NYSE Chicago Release, supra note 3; and Exchange Act Release Nos. 83303 (May 22, 2018), 83 FR 24517 (May 29, 2018) (SR-CHX-2018-004). --------------------------------------------------------------------------- The proposed amendments to effect non-substantive technical and conforming changes would remove impediments to and perfect the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the governing documents. The Exchange further believes that the proposed amendments would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency and clarity, thereby reducing potential confusion. B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with the corporate governance and administration of the Exchange. 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 \19\ and Rule 19b-4(f)(6) thereunder.\20\ 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)(iii) thereunder. --------------------------------------------------------------------------- \19\ 15 U.S.C. 78s(b)(3)(A)(iii). \20\ 17 CFR 240.19b-4(f)(6). --------------------------------------------------------------------------- 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) \21\ of the Act to determine whether the proposed rule change should be approved or disapproved. --------------------------------------------------------------------------- \21\ 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 CommentsUse the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an email to [email protected]. Please include File Number SR-NYSEAMER-2018-49 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-NYSEAMER-2018-49. 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 website (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 website 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-NYSEAMER-2018-49 and should be submitted on or before December 17, 2018. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\22\ --------------------------------------------------------------------------- \22\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2018-25738 Filed 11-23-18; 8:45 am] BILLING CODE 8011-01-P
![60536 Federal Register / Vol. 83, No. 227 / Monday, November 26, 2018 / Notices
C. Self-Regulatory Organization’s technology implementation changes and communications relating to the
Statement on Comments on the maintenance by Trading Permit Holders proposed rule change between the
Proposed Rule Change Received From of the Exchange that are also Commission and any person, other than
Members, Participants, or Others participants on Cboe Affiliated those that may be withheld from the
The Exchange neither solicited nor Exchanges. The Commission believes public in accordance with the
received comments on the proposed that waiver of the 30-day operative provisions of 5 U.S.C. 552, will be
rule change. delay is consistent with the protection available for website viewing and
of investors and the public interest. printing in the Commission’s Public
III. Date of Effectiveness of the Therefore, the Commission hereby Reference Room, 100 F Street NE,
Proposed Rule Change and Timing for waives the 30-day operative delay and Washington, DC 20549, on official
Commission Action designates the proposed rule change as business days between the hours of
Because the foregoing proposed rule operative upon filing.14 10:00 a.m. and 3:00 p.m. Copies of the
change does not: (i) Significantly affect At any time within 60 days of the filing also will be available for
the protection of investors or the public filing of the proposed rule change, the inspection and copying at the principal
interest; (ii) impose any significant Commission summarily may office of the Exchange. All comments
burden on competition; and (iii) become temporarily suspend such rule change if received will be posted without change.
operative for 30 days from the date on it appears to the Commission that such Persons submitting comments are
which it was filed, or such shorter time action is: (i) Necessary or appropriate in cautioned that we do not redact or edit
as the Commission may designate, it has the public interest; (ii) for the protection personal identifying information from
of investors; or (iii) otherwise in comment submissions. You should
become effective pursuant to Section
furtherance of the purposes of the Act. submit only information that you wish
19(b)(3)(A)(iii) of the Act 10 and
If the Commission takes such action, the to make available publicly. All
subparagraph (f)(6) of Rule 19b–4
Commission shall institute proceedings submissions should refer to File
thereunder.11
to determine whether the proposed rule Number SR–CboeEDGX–2018–051 and
A proposed rule change filed under
should be approved or disapproved. should be submitted on or before
Rule 19b–4(f)(6) 12 normally does not
become operative prior to 30 days after IV. Solicitation of Comments December 17, 2018.
the date of the filing. However, Rule Interested persons are invited to For the Commission, by the Division of
19b–4(f)(6)(iii) 13 permits the submit written data, views, and Trading and Markets, pursuant to delegated
Commission to designate a shorter time arguments concerning the foregoing, authority.15
if such action is consistent with the including whether the proposed rule Eduardo A. Aleman,
protection of investors and the public change is consistent with the Act. Assistant Secretary.
interest. The Exchange has asked the Comments may be submitted by any of [FR Doc. 2018–25596 Filed 11–23–18; 8:45 am]
Commission to waive the 30-day the following methods: BILLING CODE 8011–01–P
operative delay so that the proposed
rule change may become effective and Electronic Comments
operative immediately upon filing. The • Use the Commission’s internet SECURITIES AND EXCHANGE
Exchange states that waiver of the comment form (http://www.sec.gov/ COMMISSION
operative delay will provide Users with rules/sro.shtml); or
additional flexibility to manage and • Send an email to rule-comments@ [Release No. 34–84636; File No. SR–
display their orders and provide sec.gov. Please include File Number SR– NYSEAMER–2018–49]
additional control over their executions CboeEDGX–2018–051 on the subject
on the Exchange as soon as possible. line. Self-Regulatory Organizations; NYSE
The Exchange further states that waiver American LLC; Notice of Filing and
Paper Comments Immediate Effectiveness of Proposed
of the operative delay will allow the
Exchange to continue to strive towards • Send paper comments in triplicate Rule Change To Amend Article II,
a complete technology integration of the to Secretary, Securities and Exchange Section 2.03(h)(ii) and Article VI of Its
Cboe Affiliated Exchanges, with gradual Commission, 100 F Street NE, Operating Agreement
roll-outs of new functionality to ensure Washington, DC 20549–1090. November 20, 2018.
the stability of the System. The All submissions should refer to File Pursuant to Section 19(b)(1) 1 of the
Exchange notes that the proposed rule Number SR–CboeEDGX–2018–051. This Securities Exchange Act of 1934
change is generally intended to codify file number should be included on the (‘‘Act’’) 2 and Rule 19b–4 thereunder,3
and to add certain system functionality subject line if email is used. To help the notice is hereby given that on November
to the Exchange’s System in order to Commission process and review your 9, 2018, NYSE American LLC
provide a consistent technology offering comments more efficiently, please use (‘‘Exchange’’ or ‘‘NYSE American’’) filed
for the Cboe Affiliated Exchanges. The only one method. The Commission will with the Securities and Exchange
Exchange further notes that a consistent post all comments on the Commission’s Commission (‘‘Commission’’) the
technology offering will simplify the internet website (http://www.sec.gov/ proposed rule change as described in
rules/sro.shtml). Copies of the Items I, II, and III below, which Items
10 15 U.S.C. 78s(b)(3)(A)(iii). submission, all subsequent have been prepared by the Exchange.
11 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– amendments, all written statements The Commission is publishing this
4(f)(6)(iii) requires a self-regulatory organization to with respect to the proposed rule
give the Commission written notice of its intent to notice to solicit comments on the
file the proposed rule change, along with a brief change that are filed with the proposed rule change from interested
description and text of the proposed rule change, Commission, and all written persons.
at least five business days prior to the date of filing
of the proposed rule change, or such shorter time 14 For purposes only of waiving the 30-day
15 17 CFR 200.30–3(a)(12).
as designated by the Commission. The Exchange operative delay, the Commission has also
has satisfied this requirement. considered the proposed rule’s impact on
1 15 U.S.C.78s(b)(1).
12 17 CFR 240.19b–4(f)(6). 2 15 U.S.C. 78a.
efficiency, competition, and capital formation. See
13 17 CFR 240.19b–4(f)(6)(iii). 15 U.S.C. 78c(f). 3 17 CFR 240.19b–4.
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![Federal Register / Vol. 83, No. 227 / Monday, November 26, 2018 / Notices 60537
I. Self-Regulatory Organization’s parent companies, as well as make Among other things, the provision states
Statement of the Terms of Substance of clarifying, technical and conforming that ‘‘[t]he Board may, on affirmative
the Proposed Rule Change changes. vote of a majority of directors, at any
The Exchange proposes to amend The Exchange is owned by NYSE time remove a member of the ROC for
Article II, Section 2.03(h)(ii) and Article Group, Inc., which in turn is indirectly cause.’’ The Exchange proposes to add
VI of its operating agreement to wholly owned by NYSE Holdings LLC language clarifying that the majority
harmonize certain provisions with (‘‘NYSE Holdings’’). NYSE Holdings is a affirmative vote requirement is based on
similar provisions in the governing wholly owned subsidiary of the ‘‘directors then in office,’’ as
documents of the Exchange’s national Intercontinental Holdings, Inc. (‘‘ICE opposed to total number of seats on the
securities exchange affiliates and parent Holdings’’), which is in turn wholly Board. The change would be consistent
companies, as well as make clarifying, owned by the Intercontinental with Article IV, Section 6 of the NYSE
technical and conforming changes. The Exchange, Inc. (‘‘ICE’’).5 Chicago Bylaws.9
proposed rule change is available on the The Exchange operates as a separate Article VI
Exchange’s website at www.nyse.com, at self-regulatory organization and has
rules, membership rosters and listings Section 6.02 (Indemnification)
the principal office of the Exchange, and
at the Commission’s Public Reference distinct from the rules, membership Current Section 6.02 includes
Room. rosters and listings of the other NYSE provisions related to indemnification by
Group Exchanges. At the same time, the Exchange. As a wholly-owned
II. Self-Regulatory Organization’s however, the Exchange believes it is subsidiary of ICE, the Exchange believes
Statement of the Purpose of, and important for each of the NYSE Group it appropriate to harmonize the
Statutory Basis for, the Proposed Rule Exchanges to have a consistent Exchange’s indemnification provisions
Change approach to corporate governance in with those of ICE and the Exchange’s
In its filing with the Commission, the certain matters, to simplify complexity intermediate holding company, ICE
self-regulatory organization included and create greater consistency among Holdings.10 The same change was made
statements concerning the purpose of, the NYSE Group Exchanges.6 The to Article VI of the NYSE Chicago
and basis for, the proposed rule change proposed amendments to the Operating Bylaws.11
and discussed any comments it received Agreement reflect the expectation that Accordingly, the Exchange proposes
on the proposed rule change. The text the Exchange will continue to be to delete the text of Section 6.02 in its
of those statements may be examined at operated with a governance structure entirety and replace it with proposed
the places specified in Item IV below. substantially similar to that of other text that is substantially similar to the
The Exchange has prepared summaries, NYSE Group Exchanges. CHX, ICE and ICE Holdings provisions,
set forth in sections A, B, and C below, The proposed amendment to Article with the exception of changes to be
of the most significant parts of such II, Section 2.03(h)(ii) is based on the consistent with the Operating
statements. Second Amended and Restated By-Laws Agreement’s terminology.12 The
of NYSE Chicago, Inc. (‘‘NYSE Chicago proposed text follows:
A. Self-Regulatory Organization’s Bylaws’’).7 The proposed amendments (a) The Company shall, to the fullest
Statement of the Purpose of, and the to Article VI are based on the Eighth extent permitted by Law (as defined
Statutory Basis for, the Proposed Rule Amended and Restated Bylaws of below), as such Law may be amended
Change Intercontinental Exchange, Inc. (‘‘ICE and supplemented from time to time,
1. Purpose Bylaws’’) and the Sixth Amended and indemnify any director or officer made,
Restated Bylaws of Intercontinental or threatened to be made, a party to any
(1) Generally Exchange Holdings, Inc. (‘‘ICE Holdings action, suit or proceeding, whether
The Exchange proposes to amend Bylaws’’). criminal, civil, administrative or
Article II, Section 2.03(h)(ii) (Board) and The Exchange proposes to amend the investigative, by reason of being a
Article VI (Indemnification and Operating Agreement as follows. director or officer of the Company or a
Exculpation) of the Eleventh Amended predecessor company or, at the
and Restated Operating Agreement of Article II, Section 2.03(h)(ii) Company’s request, a director, officer,
the Exchange (‘‘Operating Agreement’’) Article II, Section 2.03(h)(ii) partner, member, employee or agent of
to harmonize certain provisions with establishes the powers and another entity; provided, however, that
similar provisions in the governing responsibilities of the Regulatory the Company shall indemnify any
documents of the Exchange’s national Oversight Committee (‘‘ROC’’), and is director or officer in connection with a
securities exchange affiliates 4 and substantially the same as the related proceeding initiated by such person
provisions in the governing documents
4 The Exchange has four registered national
of the other NYSE Group Exchanges.8 Article II, Section 2.03(h)(ii); NYSE Arca Rule 3.3;
securities exchange affiliates: the New York Stock Fifth Amended and Restated Bylaws of NYSE
Exchange LLC (‘‘NYSE’’), NYSE Arca, Inc. (‘‘NYSE National, Inc., Article V, Section 5.6; NYSE Chicago
pursuant to its filing with the Secretary of State of Bylaws, Article IV, Section 6.
Arca’’), NYSE National, Inc. (‘‘NYSE National’’),
the State of Delaware. 9 See NYSE Chicago Release, supra note 4, at
and Chicago Stock Exchange, Inc. (‘‘CHX’’ and 5 See Exchange Act Release No. 72156 (May 13,
together with the Exchange, NYSE, NYSE Arca, and 54961. The Exchange understands that the NYSE,
NYSE National, the ‘‘NYSE Group Exchanges’’). 2014), 79 FR 28782 (May 19, 2014) (SR–NYSEMKT– NYSE National and NYSE Arca propose to file
CHX has filed to change its name to NYSE Chicago, 2014–41) (notice of filing and immediate similar changes to their respective ROC provisions.
Inc. See Exchange Act Release No. 84494 (October effectiveness of proposed rule change relating to 10 See ICE Bylaws, Article X, Section 10.6, and
26, 2018), 83 FR 54953 (November 1, 2018) (SR– name changes of its ultimate parent and its indirect ICE Holdings Bylaws, Article X, Section 10.6.
CHX–2018–05) (‘‘NYSE Chicago Release’’) (notice of parents). 11 See NYSE Chicago Release, supra note 4, at
6 See NYSE Chicago Release, supra note 4, at
filing and immediate effectiveness of proposal to 54962–54963. The Exchange understands that the
reflect name changes of the Exchange and its direct 54953. NYSE, NYSE National and NYSE Arca propose to
7 The NYSE Chicago Bylaws will become
parent company and to amend certain corporate file similar changes to their respective
governance provisions). The rule changes set forth operative when the NYSE Chicago Certificate indemnification provisions.
in the NYSE Chicago Release will become operative becomes effective pursuant to its filing with the 12 For example, proposed Section 6.02 uses
upon the Second Amended and Restated Certificate Secretary of State of the State of Delaware. Id. ‘‘officer’’ instead of ‘‘Senior Officers,’’ ‘‘Company’’
of Incorporation of Chicago Stock Exchange, Inc. 8 See Eleventh Amended and Restated Operating instead of ‘‘Corporation,’’ and ‘‘Section 6.02’’
(‘‘NYSE Chicago Certificate’’) becoming effective Agreement of New York Stock Exchange LLC, instead of ‘‘Section 10.6.’’
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![Federal Register / Vol. 83, No. 227 / Monday, November 26, 2018 / Notices 60539
processes, create more equivalent C. Self-Regulatory Organization’s Paper Comments
governance processes among them, and Statement on Comments on the
• Send paper comments in triplicate
also provide clarity to the Exchange’s Proposed Rule Change Received From
to Secretary, Securities and Exchange
members, which is beneficial to both Members, Participants, or Others
Commission, 100 F Street, NE,
investors and the public interest. At the Washington, DC 20549–1090.
same time, the Exchange will continue No written comments were solicited
or received with respect to the proposed All submissions should refer to File
to operate as a separate self-regulatory Number SR–NYSEAMER–2018–49. This
rule change.
organization and to have rules, file number should be included on the
membership rosters and listings distinct III. Date of Effectiveness of the subject line if email is used. To help the
from the rules, membership rosters and Proposed Rule Change and Timing for Commission process and review your
listings of the other NYSE Group Commission Action comments more efficiently, please use
Exchanges. only one method. The Commission will
The Exchange has filed the proposed
For the same reason, the Exchange rule change pursuant to Section post all comments on the Commission’s
believes that the greater consistency 19(b)(3)(A)(iii) of the Act 19 and Rule internet website (http://www.sec.gov/
among the governing documents of the 19b–4(f)(6) thereunder.20 Because the rules/sro.shtml). Copies of the
NYSE Group Exchanges, ICE and ICE proposed rule change does not: (i) submission, all subsequent
Holdings would promote the Significantly affect the protection of amendments, all written statements
maintenance of a fair and orderly investors or the public interest; (ii) with respect to the proposed rule
market, the protection of investors and impose any significant burden on change that are filed with the
the protection of the public interest. competition; and (iii) become operative Commission, and all written
Indeed, the proposed amendments prior to 30 days from the date on which communications relating to the
would make the corporate requirements it was filed, or such shorter time as the proposed rule change between the
Commission may designate, if Commission and any person, other than
and administrative processes relating to
consistent with the protection of those that may be withheld from the
the Board and ROC more similar to
investors and the public interest, the public in accordance with the
those of CHX, which have been provisions of 5 U.S.C. 552, will be
established as fair and designed to proposed rule change has become
effective pursuant to Section 19(b)(3)(A) available for website viewing and
protect investors and the public printing in the Commission’s Public
interest.18 of the Act and Rule 19b–4(f)(6)(iii)
thereunder. Reference Room, 100 F Street NE,
The proposed amendments to effect Washington, DC 20549, on official
non-substantive technical and At any time within 60 days of the business days between the hours of
conforming changes would remove filing of such proposed rule change, the 10:00 a.m. and 3:00 p.m. Copies of the
impediments to and perfect the Commission summarily may filing also will be available for
temporarily suspend such rule change if inspection and copying at the principal
mechanism of a free and open market by
it appears to the Commission that such office of the Exchange. All comments
ensuring that persons subject to the
action is necessary or appropriate in the received will be posted without change.
Exchange’s jurisdiction, regulators, and
public interest, for the protection of Persons submitting comments are
the investing public can more easily investors, or otherwise in furtherance of
navigate and understand the governing cautioned that we do not redact or edit
the purposes of the Act. If the personal identifying information from
documents. The Exchange further Commission takes such action, the
believes that the proposed amendments comment submissions. You should
Commission shall institute proceedings submit only information that you wish
would not be inconsistent with the under Section 19(b)(2)(B) 21 of the Act to to make available publicly. All
public interest and the protection of determine whether the proposed rule submissions should refer to File
investors because investors will not be change should be approved or Number SR–NYSEAMER–2018–49 and
harmed and in fact would benefit from disapproved. should be submitted on or before
increased transparency and clarity, December 17, 2018.
thereby reducing potential confusion. IV. Solicitation of Comments
For the Commission, by the Division of
B. Self-Regulatory Organization’s Interested persons are invited to Trading and Markets, pursuant to delegated
Statement on Burden on Competition submit written data, views, and authority.22
arguments concerning the foregoing, Eduardo A. Aleman,
The Exchange does not believe that including whether the proposed rule Assistant Secretary.
the proposed rule change will impose change is consistent with the Act. [FR Doc. 2018–25738 Filed 11–23–18; 8:45 am]
any burden on competition that is not Comments may be submitted by any of
BILLING CODE 8011–01–P
necessary or appropriate in furtherance the following methods:
of the purposes of the Exchange Act. Electronic Comments
The proposed rule change is not SECURITIES AND EXCHANGE
intended to address competitive issues • Use the Commission’s internet COMMISSION
but rather is concerned solely with the comment form (http://www.sec.gov/
corporate governance and rules/sro.shtml); or Sunshine Act Meetings
administration of the Exchange. • Send an email to rule-comments@
TIME AND DATE:2 p.m. on Thursday,
sec.gov. Please include File Number SR–
November 29, 2018.
NYSEAMER–2018–49 on the subject
line. PLACE: The meeting will be held at the
18 See, e.g. NYSE Chicago Release, supra note 3;
Commission’s headquarters, 100 F
and Exchange Act Release Nos. 83303 (May 22, 19 15 U.S.C. 78s(b)(3)(A)(iii). Street NE, Washington, DC 20549.
2018), 83 FR 24517 (May 29, 2018) (SR–CHX–2018– 20 17 CFR 240.19b–4(f)(6).
004). 21 15 U.S.C. 78s(b)(2)(B). 22 17 CFR 200.30–3(a)(12).
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Document Created: 2018-11-24 00:52:16
Document Modified: 2018-11-24 00:52:16
| 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 | 83 FR 60536 |
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