83 FR 60924 - Self-Regulatory Organizations; New York Stock Exchange 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 228 (November 27, 2018)
Federal Register Volume 83, Issue 228 (November 27, 2018)
| Page Range | 60924-60927 | |
| FR Document | 2018-25737 |
[Federal Register Volume 83, Number 228 (Tuesday, November 27, 2018)] [Notices] [Pages 60924-60927] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-25737] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-84635; File No. SR-NYSE-2018-56] Self-Regulatory Organizations; New York Stock Exchange 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 14, 2018, New York Stock Exchange LLC (``NYSE'' or ``Exchange'') 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. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to agreement [sic] 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. [[Page 60925]] 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: NYSE America [sic] LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''), NYSE National, Inc. (``NYSE National''), and Chicago Stock Exchange, Inc. (``CHX'' and together with the Exchange, NYSE American, 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. 72158 (May 13, 2014), 79 FR 28784 (May 19, 2014) (SR-NYSE-2014-23) (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 NYSE American 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 NYSE American, 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 NYSE American, 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\ and, in Section 6.02(e), references to the New York Business Corporation Law, rather than the General Corporation Law of the State of Delaware.\13\ 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.'' \13\ The NYSE is a New York limited liability company. CHX, ICE, and ICE Holdings are all organized under the laws of the State of Delaware. --------------------------------------------------------------------------- (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 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 [[Page 60926]] 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 New York corporations, including Section 722 of the New York Business Corporation Law (``Section 722''), with such laws being applicable to the Exchange as if the Exchange were a New York 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 722 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.\14\ --------------------------------------------------------------------------- \14\ 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. 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 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 4; and Exchange Act Release Nos. 83303 (May 22, 2018), 83 FR 24517 (May 29, 2018) (SR-CHX-2018-004). --------------------------------------------------------------------------- [[Page 60927]] 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-NYSE-2018-56 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-2018-56. 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-NYSE-2018-56 and should be submitted on or before December 18, 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. 2018-25737 Filed 11-26-18; 8:45 am] BILLING CODE 8011-01-P
![60924 Federal Register / Vol. 83, No. 228 / Tuesday, November 27, 2018 / Notices
Commission to waive the 30-day • Send an email to rule-comments@ SECURITIES AND EXCHANGE
operative delay so that the proposed sec.gov. Please include File Number SR– COMMISSION
rule change may become effective and CboeBZX–2018–082 on the subject line.
operative on November 29, 2018. The [Release No. 34–84635; File No. SR–NYSE–
Exchange states that waiver of the Paper Comments
2018–56]
operative delay will provide Users with • Send paper comments in triplicate
additional flexibility to manage and Self-Regulatory Organizations; New
to Secretary, Securities and Exchange
display their orders and provide York Stock Exchange LLC; Notice of
Commission, 100 F Street NE,
additional control over their executions Filing and Immediate Effectiveness of
on the Exchange as soon as possible. Washington, DC 20549–1090.
Proposed Rule Change To Amend
The Exchange further states that waiver All submissions should refer to File Article II, Section 2.03(h)(ii) and Article
of the operative delay will allow the Number SR-CboeBZX–2018–082. This VI of Its Operating Agreement
Exchange to continue to strive towards file number should be included on the
a complete technology integration of the subject line if email is used. To help the November 20, 2018.
Cboe Affiliated Exchanges, with gradual Commission process and review your
roll-outs of new functionality to ensure Pursuant to Section 19(b)(1)1 of the
comments more efficiently, please use Securities Exchange Act of 1934
the stability of the System. The only one method. The Commission will
Exchange notes that the proposed rule (‘‘Act’’) 2 and Rule 19b–4 thereunder,3
post all comments on the Commission’s notice is hereby given that on November
change is generally intended to codify
internet website (http://www.sec.gov/ 14, 2018, New York Stock Exchange
and to add certain system functionality
to the Exchange’s System in order to rules/sro.shtml). Copies of the LLC (‘‘NYSE’’ or ‘‘Exchange’’) filed with
provide a consistent technology offering submission, all subsequent the Securities and Exchange
for the Cboe Affiliated Exchanges. The amendments, all written statements Commission (‘‘Commission’’) the
Exchange further notes that a consistent with respect to the proposed rule proposed rule change as described in
technology offering will simplify the change that are filed with the Items I, II, and III below, which Items
technology implementation changes and Commission, and all written have been prepared by the Exchange.
maintenance by Trading Permit Holders communications relating to the The Commission is publishing this
of the Exchange that are also proposed rule change between the notice to solicit comments on the
participants on Cboe Affiliated Commission and any person, other than proposed rule change from interested
Exchanges. The Commission believes those that may be withheld from the persons.
that waiver of the 30-day operative public in accordance with the
delay is consistent with the protection provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s
of investors and the public interest. available for website viewing and Statement of the Terms of Substance of
Therefore, the Commission hereby printing in the Commission’s Public the Proposed Rule Change
waives the 30-day operative delay and Reference Room, 100 F Street NE,
designates the proposed rule change as The Exchange proposes to agreement
Washington, DC 20549 on official [sic] to harmonize certain provisions
operative on November 29, 2018.20 business days between the hours of
At any time within 60 days of the with similar provisions in the governing
10:00 a.m. and 3:00 p.m. Copies of the documents of the Exchange’s national
filing of the proposed rule change, the
Commission summarily may filing also will be available for securities exchange affiliates and parent
temporarily suspend such rule change if inspection and copying at the principal companies, as well as make clarifying,
it appears to the Commission that such office of the Exchange. All comments technical and conforming changes. The
action is: (i) Necessary or appropriate in received will be posted without change. proposed rule change is available on the
the public interest; (ii) for the protection Persons submitting comments are Exchange’s website at www.nyse.com, at
of investors; or (iii) otherwise in cautioned that we do not redact or edit the principal office of the Exchange, and
furtherance of the purposes of the Act. personal identifying information from at the Commission’s Public Reference
If the Commission takes such action, the comment submissions. You should Room.
Commission shall institute proceedings submit only information that you wish
to determine whether the proposed rule to make available publicly. All II. Self-Regulatory Organization’s
should be approved or disapproved. submissions should refer to File Statement of the Purpose of, and
Number SR–CboeBZX–2018–082 and Statutory Basis for, the Proposed Rule
IV. Solicitation of Comments Change
should be submitted on or before
Interested persons are invited to December 18,2018.
submit written data, views, and In its filing with the Commission, the
arguments concerning the foregoing, For the Commission, by the Division of self-regulatory organization included
including whether the proposed rule Trading and Markets, pursuant to delegated statements concerning the purpose of,
change is consistent with the Act. authority.21 and basis for, the proposed rule change
Comments may be submitted by any of Eduardo A. Aleman, and discussed any comments it received
the following methods: Assistant Secretary. on the proposed rule change. The text
[FR Doc. 2018–25733 Filed 11–26–18; 8:45 am] of those statements may be examined at
Electronic Comments
the places specified in Item IV below.
• Use the Commission’s internet BILLING CODE 8011–01–P
The Exchange has prepared summaries,
amozie on DSK3GDR082PROD with NOTICES1
comment form (http://www.sec.gov/ set forth in sections A, B, and C below,
rules/sro.shtml); or of the most significant parts of such
statements.
20 For purposes only of waiving the 30-day
operative delay, the Commission has also
1 15 U.S.C.78s(b)(1).
considered the proposed rule’s impact on
2 15 U.S.C. 78a.
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f). 21 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s Agreement reflect the expectation that to Article VI of the NYSE Chicago
Statement of the Purpose of, and the the Exchange will continue to be Bylaws.11
Statutory Basis for, the Proposed Rule operated with a governance structure Accordingly, the Exchange proposes
Change substantially similar to that of other to delete the text of Section 6.02 in its
NYSE Group Exchanges. entirety and replace it with proposed
1. Purpose text that is substantially similar to the
The proposed amendment to Article
(1) Generally II, Section 2.03(h)(ii) is based on the CHX, ICE and ICE Holdings provisions,
The Exchange proposes to amend Second Amended and Restated By-Laws with the exception of changes to be
Article II, Section 2.03(h)(ii) (Board) and of NYSE Chicago, Inc. (‘‘NYSE Chicago consistent with the Operating
Article VI (Indemnification and Bylaws’’).7 The proposed amendments Agreement’s terminology 12 and, in
Exculpation) of the Eleventh Amended to Article VI are based on the Eighth Section 6.02(e), references to the New
and Restated Operating Agreement of Amended and Restated Bylaws of York Business Corporation Law, rather
the Exchange (‘‘Operating Agreement’’) Intercontinental Exchange, Inc. (‘‘ICE than the General Corporation Law of the
to harmonize certain provisions with Bylaws’’) and the Sixth Amended and State of Delaware.13 The proposed text
similar provisions in the governing Restated Bylaws of Intercontinental follows:
documents of the Exchange’s national (a) The Company shall, to the fullest
Exchange Holdings, Inc. (‘‘ICE Holdings
securities exchange affiliates 4 and extent permitted by Law (as defined
Bylaws’’).
parent companies, as well as make below), as such Law may be amended
The Exchange proposes to amend the and supplemented from time to time,
clarifying, technical and conforming Operating Agreement as follows.
changes. indemnify any director or officer made,
The Exchange is owned by NYSE Article II, Section 2.03(h)(ii) or threatened to be made, a party to any
Group, Inc., which in turn is indirectly action, suit or proceeding, whether
wholly owned by NYSE Holdings LLC Article II, Section 2.03(h)(ii) criminal, civil, administrative or
(‘‘NYSE Holdings’’). NYSE Holdings is a establishes the powers and investigative, by reason of being a
wholly owned subsidiary of responsibilities of the Regulatory director or officer of the Company or a
Intercontinental Holdings, Inc. (‘‘ICE Oversight Committee (‘‘ROC’’), and is predecessor company or, at the
Holdings’’), which is in turn wholly substantially the same as the related Company’s request, a director, officer,
owned by the Intercontinental provisions in the governing documents partner, member, employee or agent of
Exchange, Inc. (‘‘ICE’’).5 of the other NYSE Group Exchanges. 8 another entity; provided, however, that
The Exchange operates as a separate Among other things, the provision states the Company shall indemnify any
self-regulatory organization and has that ‘‘[t]he Board may, on affirmative director or officer in connection with a
rules, membership rosters and listings vote of a majority of directors, at any proceeding initiated by such person
distinct from the rules, membership time remove a member of the ROC for only if such proceeding was authorized
rosters and listings of the other NYSE cause.’’ The Exchange proposes to add in advance by the Board of Directors of
Group Exchanges. At the same time, language clarifying that the majority the Company. The indemnification
however, the Exchange believes it is affirmative vote requirement is based on provided for in this Section 6.02 shall:
important for each of the NYSE Group the ‘‘directors then in office,’’ as (i) Not be deemed exclusive of any other
Exchanges to have a consistent opposed to total number of seats on the rights to which those indemnified may
approach to corporate governance in Board. The change would be consistent be entitled under any bylaw, agreement
certain matters, to simplify complexity with Article IV, Section 6 of the NYSE or vote of stockholders or disinterested
and create greater consistency among Chicago Bylaws.9 directors or otherwise, both as to action
the NYSE Group Exchanges.6 The in their official capacities and as to
Article VI action in another capacity while holding
proposed amendments to the Operating
Section 6.02 (Indemnification) such office; (ii) continue as to a person
4 The Exchange has four registered national
who has ceased to be a director or
Current Section 6.02 includes officer; and (iii) inure to the benefit of
securities exchange affiliates: NYSE America [sic]
LLC (‘‘NYSE American’’), NYSE Arca, Inc. (‘‘NYSE
provisions related to indemnification by the heirs, executors and administrators
Arca’’), NYSE National, Inc. (‘‘NYSE National’’), the Exchange. As a wholly-owned of an indemnified person.
and Chicago Stock Exchange, Inc. (‘‘CHX’’ and subsidiary of ICE, the Exchange believes (b) Expenses incurred by any such
together with the Exchange, NYSE American, NYSE it appropriate to harmonize the
Arca, and NYSE National, the ‘‘NYSE Group person in defending a civil or criminal
Exchanges’’). CHX has filed to change its name to
Exchange’s indemnification provisions action, suit or proceeding by reason of
NYSE Chicago, Inc. See Exchange Act Release No. with those of ICE and the Exchange’s the fact that he is or was a director or
84494 (October 26, 2018), 83 FR 54953 (November intermediate holding company, ICE officer of the Company (or was serving
1, 2018) (SR–CHX–2018–05) (‘‘NYSE Chicago Holdings.10 The same change was made
Release’’) (notice of filing and immediate at the Company’s request as a director,
effectiveness of proposal to reflect name changes of officer, partner, member, employee or
7 The NYSE Chicago Bylaws will become
the Exchange and its direct parent company and to agent of another entity) shall be paid by
amend certain corporate governance provisions). operative when the NYSE Chicago Certificate
becomes effective pursuant to its filing with the
the Company in advance of the final
The rule changes set forth in the NYSE Chicago
Release will become operative upon the Second Secretary of State of the State of Delaware. Id. disposition of such action, suit or
Amended and Restated Certificate of Incorporation 8 See Eleventh Amended and Restated Operating
of Chicago Stock Exchange, Inc. (‘‘NYSE Chicago Agreement of NYSE American LLC, Article II, 11 See NYSE Chicago Release, supra note 4, at
Certificate’’) becoming effective pursuant to its Section 2.03(h)(ii); NYSE Arca Rule 3.3; Fifth 54962–54963. The Exchange understands that
filing with the Secretary of State of the State of Amended and Restated Bylaws of NYSE National, NYSE American, NYSE National and NYSE Arca
amozie on DSK3GDR082PROD with NOTICES1
Delaware. Inc., Article V, Section 5.6; NYSE Chicago Bylaws, propose to file similar changes to their respective
5 See Exchange Act Release No. 72158 (May 13, Article IV, Section 6. indemnification provisions.
2014), 79 FR 28784 (May 19, 2014) (SR–NYSE– 9 See NYSE Chicago Release, supra note 4, at 12 For example, proposed Section 6.02 uses
2014–23) (notice of filing and immediate 54961. The Exchange understands that NYSE ‘‘officer’’ instead of ‘‘Senior Officers,’’ ‘‘Company’’
effectiveness of proposed rule change relating to American, NYSE National and NYSE Arca propose instead of ‘‘Corporation,’’ and ‘‘Section 6.02’’
name changes of its ultimate parent and its indirect to file similar changes to their respective ROC instead of ‘‘Section 10.6.’’
parents). provisions. 13 The NYSE is a New York limited liability
6 See NYSE Chicago Release, supra note 4, at 10 See ICE Bylaws, Article X, Section 10.6, and company. CHX, ICE, and ICE Holdings are all
54953. ICE Holdings Bylaws, Article X, Section 10.6. organized under the laws of the State of Delaware.
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![Federal Register / Vol. 83, No. 228 / Tuesday, November 27, 2018 / Notices 60927
The proposed amendments to effect public interest, for the protection of submit only information that you wish
non-substantive technical and investors, or otherwise in furtherance of to make available publicly. All
conforming changes would remove the purposes of the Act. If the submissions should refer to File
impediments to and perfect the Commission takes such action, the Number SR–NYSE–2018–56 and should
mechanism of a free and open market by Commission shall institute proceedings be submitted on or before December 18,
ensuring that persons subject to the under Section 19(b)(2)(B) 21 of the Act to 2018.
Exchange’s jurisdiction, regulators, and determine whether the proposed rule For the Commission, by the Division of
the investing public can more easily change should be approved or Trading and Markets, pursuant to delegated
navigate and understand the governing disapproved. authority.22
documents. The Exchange further IV. Solicitation of Comments Eduardo A. Aleman,
believes that the proposed amendments Assistant Secretary.
would not be inconsistent with the Interested persons are invited to
[FR Doc. 2018–25737 Filed 11–26–18; 8:45 am]
public interest and the protection of submit written data, views, and
BILLING CODE 8011–01–P
investors because investors will not be arguments concerning the foregoing,
harmed and in fact would benefit from including whether the proposed rule
increased transparency and clarity, change is consistent with the Act.
SECURITIES AND EXCHANGE
thereby reducing potential confusion. Comments may be submitted by any of
COMMISSION
the following methods:
B. Self-Regulatory Organization’s [Release No. 34–84630; File No. SR–MSRB–
Statement on Burden on Competition Electronic Comments 2018–07]
The Exchange does not believe that • Use the Commission’s internet
comment form (http://www.sec.gov/ Self-Regulatory Organizations;
the proposed rule change will impose Municipal Securities Rulemaking
any burden on competition that is not rules/sro.shtml); or
necessary or appropriate in furtherance • Send an email to rule-comments@ Board; Order Granting Approval of a
sec.gov. Please include File Number SR– Proposed Rule Change To Amend
of the purposes of the Exchange Act. MSRB Rule G–3, on Professional
NYSE–2018–56 on the subject line.
The proposed rule change is not Qualification Requirements, To
intended to address competitive issues Paper Comments Require Municipal Advisor Principals
but rather is concerned solely with the • Send paper comments in triplicate To Become Appropriately Qualified by
corporate governance and to Secretary, Securities and Exchange Passing the Municipal Advisor
administration of the Exchange. Commission, 100 F Street NE, Principal Qualification Examination
C. Self-Regulatory Organization’s Washington, DC 20549–1090.
November 20, 2018.
Statement on Comments on the All submissions should refer to File
Proposed Rule Change Received From Number SR–NYSE–2018–56. This file I. Introduction
Members, Participants, or Others number should be included on the On September 19, 2018, the
No written comments were solicited subject line if email is used. To help the Municipal Securities Rulemaking Board
or received with respect to the proposed Commission process and review your (the ‘‘MSRB’’ or ‘‘Board’’) filed with the
rule change. comments more efficiently, please use Securities and Exchange Commission
only one method. The Commission will (the ‘‘SEC’’ or ‘‘Commission’’), pursuant
III. Date of Effectiveness of the post all comments on the Commission’s to Section 19(b)(1) of the Securities
Proposed Rule Change and Timing for internet website (http://www.sec.gov/ Exchange Act of 1934 (‘‘Act’’) 1 and Rule
Commission Action rules/sro.shtml). Copies of the 19b–4 thereunder,2 a proposed rule to
The Exchange has filed the proposed submission, all subsequent amend Rule G–3, on professional
rule change pursuant to Section amendments, all written statements qualification requirements, to (i) require
19(b)(3)(A)(iii) of the Act 19 and Rule with respect to the proposed rule persons who meet the definition of a
19b–4(f)(6) thereunder.20 Because the change that are filed with the municipal advisor principal, as defined
proposed rule change does not: (i) Commission, and all written under Rule G–3(e)(i), to pass the
Significantly affect the protection of communications relating to the Municipal Advisor Principal
investors or the public interest; (ii) proposed rule change between the Qualification Examination (‘‘Series 54
impose any significant burden on Commission and any person, other than examination’’) in order to become
competition; and (iii) become operative those that may be withheld from the appropriately qualified as a municipal
prior to 30 days from the date on which public in accordance with the advisor principal; (ii) specify that such
it was filed, or such shorter time as the provisions of 5 U.S.C. 552, will be persons who cease to be associated with
Commission may designate, if available for website viewing and a municipal advisor for two or more
consistent with the protection of printing in the Commission’s Public years at any time after having qualified
investors and the public interest, the Reference Room, 100 F Street NE, as a municipal advisor principal must
proposed rule change has become Washington, DC 20549, on official requalify by examination unless a
effective pursuant to Section 19(b)(3)(A) business days between the hours of waiver is granted; (iii) add the Series 54
of the Act and Rule 19b–4(f)(6)(iii) 10:00 a.m. and 3:00 p.m. Copies of the examination to the list of qualification
thereunder. filing also will be available for examinations for which a waiver can be
At any time within 60 days of the inspection and copying at the principal sought; (iv) provide that municipal
filing of such proposed rule change, the office of the Exchange. All comments advisor representatives may function as
amozie on DSK3GDR082PROD with NOTICES1
Commission summarily may received will be posted without change. a principal for 120 calendar days
temporarily suspend such rule change if Persons submitting comments are without being qualified with the Series
it appears to the Commission that such cautioned that we do not redact or edit 54 examination; and (v) make a
action is necessary or appropriate in the personal identifying information from
comment submissions. You should 22 17 CFR 200.30–3(a)(12).
19 15 U.S.C. 78s(b)(3)(A)(iii). 1 15 U.S.C. 78s(b)(1).
20 17 CFR 240.19b–4(f)(6). 21 15 U.S.C. 78s(b)(2)(B). 2 17 CFR 240.19b–4.
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Document Created: 2018-11-27 01:24:09
Document Modified: 2018-11-27 01:24:09
| 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 60924 |
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