[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Notices]
[Pages 67224-67229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26690]
[[Page 67224]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-73530; File No. SR-ISE-2014-44]
Self-Regulatory Organizations; International Securities Exchange,
LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment
No. 1 Thereto, Relating to a Corporate Transaction Involving Its
Indirect Parent
November 5, 2014.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that, on October 22, 2014, the International Securities Exchange, LLC
(the ``Exchange'' or the ``ISE'') filed with the Securities and
Exchange Commission (``Commission'') the proposed rule change, as
described in Items I and II below, which items have been prepared by
the self-regulatory organization. On October 31, 2014, the Exchange
filed Amendment No. 1 to the proposal.\3\ The Commission is publishing
this notice to solicit comments on the proposed rule change, as
modified by Amendment No. 1, from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ In Amendment No. 1, the Exchange proposed non-substantive
changes to amend Exhibits 5D (Form of Swiss Parent Corporate
Resolutions) and 5G (Form of Swiss Parent Association Resolutions)
so that the text the Exchange proposes to delete accurately reflects
the existing text of the resolutions previously submitted to, and
approved by, the Commission.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
The Exchange proposes to make changes to its indirect, non-U.S.
upstream ownership structure (the ``Transactions''), in connection with
which the Series A Preferred Stock of the Exchange's sole, direct
parent, International Securities Exchange Holdings, Inc. (``ISE
Holdings''), will be converted to shares of ISE Holdings common stock
(the ``Conversion''). In order to consummate the Transactions,
including the Conversion, the Exchange proposes to: (i) Amend and
restate the Certificate of Designations of Series A Preferred Stock of
ISE Holdings (the ``COD''); (ii) amend and restate the Amended and
Restated Certificate of Incorporation of ISE Holdings (the ``COI'');
and (iii) amend and restate the Second Amended and Restated Trust
Agreement (the ``Trust Agreement'') that exists among ISE Holdings,
U.S. Exchange Holdings, Inc. (``U.S. Exchange Holdings''), and the
Trustees (as defined therein). The Exchange also proposes that certain
corporate resolutions and agreements that were previously established
or entered into by entities that will cease to be upstream owners of
ISE after the Transactions will no longer be rules of the Exchange. In
addition, the Exchange proposes to amend and restate the Second Amended
and Restated Limited Liability Company Agreement of ISE (``ISE LLC
Agreement'') with respect to distributions. Finally, the Exchange
proposes to make a non-substantive, administrative change to the Second
Amended and Restated Certificate of Incorporation of U.S. Exchange
Holdings (``U.S. Exchange Holdings COI''), the direct U.S. upstream
owner of ISE Holdings, to update a reference therein to the Trust
Agreement.
The text of the proposed rule change is available at the
Commission's Public Reference Room and on the Exchange's Internet Web
site at http://www.ise.com.
II. Self-Regulatory Organization's Statement of the Purpose of, and the
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 these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in sections A, B and C below, of the
most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The purpose of the proposal is to make changes to the Exchange's
indirect, non-U.S. upstream ownership structure, in connection with
which the Series A Preferred Stock of the Exchange's sole, direct
parent, ISE Holdings, will be converted to shares of ISE Holdings
common stock.\4\
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\4\ The Exchange's affiliate, ISE Gemini, LLC (``ISE Gemini''),
has submitted a nearly identical proposed rule change. See SR-
ISEGemini-2014-24.
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Background
On December 17, 2007, ISE Holdings, the sole, direct parent of the
Exchange, became a direct, wholly-owned subsidiary of U.S. Exchange
Holdings.\5\ U.S. Exchange Holdings is a wholly-owned, direct
subsidiary of Eurex Frankfurt AG (``Eurex Frankfurt''). Eurex Frankfurt
is a wholly-owned, direct subsidiary of Eurex Z[uuml]rich AG (``Eurex
Z[uuml]rich''). Eurex Z[uuml]rich is jointly-owned (50%/50%) by
Deutsche B[ouml]rse AG (``Deutsche B[ouml]rse'') and Eurex Global
Derivatives AG (``EGD''). EGD is a wholly-owned, direct subsidiary of
Deutsche B[ouml]rse.\6\ Contemporaneous with becoming a direct, wholly-
owned subsidiary of U.S. Exchange Holdings, ISE Holdings issued 100,000
shares of Series A Preferred Stock (``ISE Holdings Preferred'') to
Eurex Services GmbH (``ESG'').\7\ ESG is a wholly-owned, direct
subsidiary of Eurex Frankfurt.
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\5\ See Securities Exchange Act Release No. 56955 (December 13,
2007), 72 FR 71979 (December 19, 2007) (SR-ISE-2007-101).
\6\ See Securities Exchange Act Release No. 66834 (April 19,
2012), 77 FR 24752 (April 25, 2012) (SR-ISE-2012-21). Each of
Deutsche B[ouml]rse, Eurex Frankfurt, Eurex Z[uuml]rich, and EGD is
referred to as a ``Non-U.S. Upstream Owner'' and collectively as the
``Non-U.S. Upstream Owners.''
\7\ The ISE Holdings Preferred was issued with a par value of
$.01 per share to finance, and thereby facilitate the completion of,
the 2007 transaction described in SR-ISE-2007-101, supra note 5.
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ISE Holdings Stock
Two classes of ISE Holdings stock are currently issued and
outstanding: (i) 1,000 shares of common stock (``ISE Holdings
Common''), which are held exclusively by U.S. Exchange Holdings--the
sole, direct owner of ISE Holdings; and (ii) 100,000 shares of ISE
Holdings Preferred, which are held exclusively by ESG. Both U.S.
Exchange Holdings and ESG are wholly-owned, direct subsidiaries of
Eurex Frankfurt. The ISE Holdings Preferred is provided for in the COD,
which was adopted on December 19, 2007.\8\ Unlike the ISE Holdings
Common, ISE Holdings Preferred generally does not have the right by its
terms to vote in the election of the ISE Holdings Board of Directors or
on other matters (other than matters affecting the rights, preferences,
or privileges of ISE Holdings Preferred or as required by law or as set
forth in the COD).\9\ These rights generally reside exclusively with
the ISE Holdings Common.
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\8\ See supra note 5.
\9\ See COD, Section 5(a). ISE Holdings Preferred would have
certain of such rights, if, for example, ISE Holdings were to (i)
file a petition, application, answer or consent seeking
reorganization or relief under any applicable bankruptcy law, (ii)
formally approve a plan to dissolve or wind up, or (iii) fail to pay
all accrued and unpaid ISE Holdings Preferred dividends in any two
consecutive calendar years. See COD, Section 5(b).
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The Transactions
The Transactions are designed to: (i) Simplify the indirect
ownership structure of the Exchange among the various entities
described above; and (ii)
[[Page 67225]]
create a more efficient capital structure with respect to U.S., German
and Swiss laws. The Transactions will not have any effect on ISE
Holdings' direct ownership of the Exchange or the operations of the
Exchange. Consummation of the Transactions is subject to approval of
this proposed rule change by the Commission.\10\ In order to effectuate
the Transactions, including the Conversion, the following steps are
anticipated to occur sequentially:
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\10\ See infra notes 13, 14 and 23.
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1. On or about December 19, 2014, Eurex Z[uuml]rich will sell its
100% ownership in Eurex Frankfurt to Deutsche B[ouml]rse, whereby Eurex
Frankfurt will become a wholly-owned, direct subsidiary of Deutsche
B[ouml]rse;\11\
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\11\ As referenced above, Deutsche B[ouml]rse is already the
100% indirect owner of Eurex Frankfurt. In addition, Deutsche
B[ouml]rse also is already an approved Non-U.S. Upstream Owner of
the Exchange. See supra note 6.
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2. On or about December 21, 2014, Eurex Frankfurt will transfer its
100% ownership in ESG, the sole holder of the ISE Holdings Preferred,
to U.S. Exchange Holdings;
3. On or about December 21, 2014, and after completion of Step 2
above, U.S. Exchange Holdings, as the sole, direct owner of ESG, will
cause ESG to distribute the ISE Holdings Preferred to U.S. Exchange
Holdings;
4. On or about December 22, 2014, Eurex Frankfurt, the sole, direct
owner of U.S. Exchange Holdings, will cause U.S. Exchange Holdings to
convert the ISE Holdings Preferred into ISE Holdings Common. Each of
the 100,000 shares of ISE Holdings Preferred will be converted to one
share of ISE Holdings Common. After the Conversion, U.S. Exchange
Holdings will continue to hold all of the issued and outstanding shares
of ISE Holdings Common (1,000 shares before and 101,000 shares after
the Conversion); and
5. On or about December 31, 2014, Eurex Frankfurt will transfer 15%
of its ownership in U.S. Exchange Holdings to Deutsche B[ouml]rse.
As a result of the Transactions, Eurex Z[uuml]rich and EGD will
cease to be Non-U.S. Upstream Owners of the Exchange, as Deutsche
B[ouml]rse will be the sole, direct owner of Eurex Frankfurt, which
will directly own 85% of U.S. Exchange Holdings.\12\ Deutsche
B[ouml]rse will directly own the remaining 15% of U.S. Exchange
Holdings. U.S. Exchange Holdings will remain the sole, direct owner of
ISE Holdings. ISE Holdings will also remain the sole, direct owner of
the Exchange. The Transactions will not result in any additional person
or entity acquiring direct or indirect ownership in the Exchange.
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\12\ In connection with each of their ownership interests in the
Exchange, Eurex Z[uuml]rich and EGD, along with Deutsche B[ouml]rse,
Eurex Frankfurt, U.S. Exchange Holdings, ISE Holdings, and the
Exchange, became parties to an agreement to provide for adequate
funding for the Exchange's regulatory responsibilities. ISE Gemini
subsequently became a party to the agreement. Following the
completion of the Transactions, each of Eurex Z[uuml]rich and EGD
will cease to be a Non-U.S. Upstream Owner of the Exchange, and as
such, will no longer be a party to such agreement.
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In order to consummate the Transactions in the manner described
above, certain administrative amendments will need to be made to the
COD, COI and Trust Agreement. The proposed amendments to such documents
are as follows:
COD
In order to effect the Conversion, the Exchange proposes to amend
certain provisions of the COD, as Section 6(b) of the COD currently
provides that the ISE Holdings Preferred is not convertible.
Specifically, the Exchange proposes to amend Section 6(b) to provide
that each share of ISE Holdings Preferred may, at the option of the
holder thereof, be converted into one fully paid and non-assessable
share of ISE Holdings Common on the date on which such holder delivers
a duly executed notice of conversion to ISE Holdings substantially in
the form of a new Annex A attached to the COD.\13\
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\13\ The proposed amended COD is attached hereto as Exhibit 5A.
Section 8 of the COD provides that, with respect to amendments and
waivers thereof, except as expressly provided for in the COD, no
provision of the COD may be amended, except in a written instrument
signed by ISE Holdings and holders of a majority of the ISE Holdings
Preferred. Notwithstanding the foregoing, before any amendment to or
repeal of any provision of the COD shall be effective, the same
shall be submitted to the board of directors of the Exchange, and if
the same must be filed with, or filed with and approved by, the
Commission before the same may be effective, under Section 19 of the
Act and the rules promulgated thereunder, then the same shall not be
effective until filed with, or filed with and approved by, the
Commission, as the case may be. In addition to the substantive
changes, the Exchange proposes to retitle the COD as the ``Amended
and Restated'' Certificate of Designations of Series A Preferred
Stock of ISE Holdings.
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COI
Article FOURTH of the COI currently provides that the total number
of shares of all classes of capital stock that ISE Holdings shall have
authority to issue is one hundred one thousand (101,000) shares, which
shall be divided as follows: one thousand (1,000) shares of ISE
Holdings Common, par value $.01 per share, and one hundred thousand
(100,000) shares of ISE Holdings Preferred, par value $.01 per share.
In connection with the proposed amendments to the COD, certain
provisions of the COI will need to be amended to account for the
increase in the authorized number of ISE Holdings Common that will
result from the Conversion. Specifically, the Exchange proposes that
the number of authorized shares of ISE Holdings Common be increased
from 1,000 shares to 101,000 shares (i.e., the existing, issued and
outstanding 1,000 shares of ISE Holdings Common plus the additional
100,000 shares of ISE Holdings Common resulting from the
Conversion).\14\ In addition, the Exchange proposes to maintain the
number of authorized ISE Holdings Preferred at 100,000 shares, in the
event that ISE Holdings determines to issue ISE Holdings Preferred in
the future. As such, the Exchange therefore proposes to increase the
total number of authorized ISE Holdings Common and ISE Holdings
Preferred from 101,000 shares to 201,000 shares. For the avoidance of
doubt, zero shares of ISE Holdings Preferred would be outstanding post-
Conversion.
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\14\ The proposed amended COI is attached hereto as Exhibit 5B.
Article FOURTEENTH of the COI provides that, for so long as ISE
Holdings shall control, directly or indirectly, the Exchange, or
facility thereof, before any amendment to or repeal of any provision
of COI shall be effective, the same shall be submitted to the board
of directors of the Exchange, and if the same must be filed with, or
filed with and approved by, the Commission before the same may be
effective, under Section 19 of the Act and the rules promulgated
thereunder, then the same shall not be effective until filed with,
or filed with and approved by, the Commission, as the case may be.
In addition to the substantive changes, the Exchange proposes to
retitle the COI as the ``Second'' Amended and Restated Certificate
of Incorporation of ISE Holdings and update the date thereof.
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The COI restricts any person, either alone or together with its
related persons, from having voting control, either directly or
indirectly, over more than 20% of the outstanding capital stock of ISE
Holdings (the ``Voting Limit'') and from directly or indirectly owning
of record or beneficially more than 40% of the outstanding capital
stock of ISE Holdings (or in the case of any Exchange member, acting
alone or together with its related persons, from directly or indirectly
owning of record or beneficially more than 20% of the outstanding
capital stock of ISE Holdings) (the ``Ownership Limit'').\15\ For the
avoidance of doubt, the Conversion will not implicate the Voting Limit
or Ownership Limit, as U.S. Exchange Holdings will continue to own 100%
of the ISE Holdings Common before and after the Conversion. Similarly,
no new direct or indirect upstream owners of the Exchange or ISE
[[Page 67226]]
Holdings will result from the Transactions.\16\
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\15\ See COI, Article FOURTH, Section III.
\16\ Each of the Non-U.S. Upstream Owners has previously taken
appropriate steps to incorporate provisions regarding ownership,
jurisdiction, books and records, and other issues related to their
control of the Exchange. Specifically, each of the Non-U.S. Upstream
Owners has adopted resolutions, which were previously approved by
the Commission, to incorporate these concepts with respect to
itself, as well as its board members, officers, employees, and
agents (as applicable), to the extent that they are involved in the
activities of the Exchange. See SR-ISE-2007-101, supra note 5; SR-
ISE-2012-21, supra note 6. See also discussion below under ``Certain
Resolutions and Agreements.''
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Trust Agreement \17\
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\17\ The Trust Agreement exists among ISE Holdings, U.S.
Exchange Holdings, and the Trustees (as defined therein).
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The Trust Agreement serves four general purposes: (i) To accept,
hold and dispose of Trust Shares \18\ on the terms and subject to the
conditions set forth therein; (ii) to determine whether a Material
Compliance Event \19\ has occurred or is continuing; (iii) to determine
whether the occurrence and continuation of a Material Compliance Event
requires the exercise of the Call Option; \20\ and (iv) to transfer
Deposited Shares from the Trust to the Trust Beneficiary \21\ as
provided in Section 4.2(h) therein.
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\18\ Under the Trust Agreement, the term ``Trust Shares'' means
either Excess Shares or Deposited Shares, or both, as the case may
be. The term ``Excess Shares'' means that a Person obtained an
ownership or voting interest in ISE Holdings in excess of certain
ownership and voting restrictions pursuant to Article FOURTH of the
COI, through, for example, ownership of one of the Non-U.S. Upstream
Owners or U.S. Exchange Holdings, without obtaining the approval of
the Commission. The term ``Deposited Shares'' means shares that are
transferred to the Trust pursuant to the Trust's exercise of the
Call Option.
\19\ Under the Trust Agreement, the term ``Material Compliance
Event'' means, with respect to a Non-U.S. Upstream Owner, any state
of facts, development, event, circumstance, condition, occurrence or
effect that results in the failure of any of the Non-U.S. Upstream
Owners to adhere to their respective commitments under the
resolutions (i.e., as referenced in note 16) in any material
respect.
\20\ Under the Trust Agreement, the term ``Call Option'' means
the option granted by the Trust Beneficiary to the Trust to call the
Voting Shares as set forth in Section 4.2 therein.
\21\ Under the Trust Agreement, the term ``Trust Beneficiary''
means U.S. Exchange Holdings.
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The Exchange proposes to amend certain provisions of the Trust
Agreement in connection with the Transactions. Specifically, the
Exchange proposes to: (i) Update the recitals of the Trust Agreement
with respect to the Transactions; (ii) remove references to Eurex
Z[uuml]rich and EGD from the definition of ``Affected Affiliate'' in
Section 1.1 of the Trust Agreement; (iii) remove references to EDGA
Exchange, Inc. (``EDGA Exchange'') and EDGX Exchange, Inc. (``EDGX
Exchange'') from the definition of ``Controlled National Securities
Exchange'' in Section 1.1 and update the recitals of the Trust
Agreement accordingly; \22\ and (iv) remove EGD's address from the
notice provisions in Section 8.8 of the Trust Agreement.\23\ The
proposed amendments to the Trust Agreement are strictly administrative
changes to reflect the updated corporate structure resulting from the
Transactions (and from legacy transactions as related to EDGA Exchange
and EDGX Exchange) and will not affect the mechanisms established by
the Trust Agreement for the benefit of the Trust Beneficiary.
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\22\ EDGA Exchange and EDGX Exchange previously were
``Controlled National Securities Exchanges.'' However, on January
30, 2014 the Commission approved a proposed rule change of EDGA
Exchange and EDGX Exchange in connection with the proposed business
combination involving their indirect parent company, Direct Edge
Holdings LLC, and BATS Global Markets, Inc., the parent company of
BATS Exchange, Inc. (``BATS'') and BATS-Y Exchange, Inc. (``BYX'').
See Securities Exchange Act Release No. 71449 (January 30, 2014), 79
FR 6961 (February 5, 2014) (SR-EDGA-2014-34; SR-EDGX-2014-43). As a
result, EDGA Exchange and EDGX Exchange ceased to be ``Controlled
National Securities Exchanges.''
\23\ The Trust Agreement is attached hereto as Exhibit 5C.
Section 8.2 of the Trust Agreement provides, in part, that, for so
long as ISE Holdings controls, directly or indirectly, the Exchange,
before any amendment or repeal of any provision of the Trust
Agreement shall be effective, such amendment or repeal shall be
submitted to the board of directors of the Exchange, as applicable,
and if such amendment or repeal must be filed with or filed with and
approved by the Commission under Section 19 of the Act and the rules
promulgated thereunder before such amendment or repeal may be
effectuated, then such amendment or repeal shall not be effectuated
until filed with or filed with and approved by the Commission, as
the case may be. In addition to the substantive changes, the
Exchange proposes to retitle the Trust Agreement as the ``Third''
Amended and Restated Trust Agreement and update the date thereof.
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Certain Resolutions and Agreements
As described above, each of the Non-U.S. Upstream Owners, including
EGD and Eurex Z[uuml]rich, has previously taken appropriate steps to
incorporate provisions regarding ownership, jurisdiction, books and
records, and other issues related to their control of the Exchange.
Specifically, each of such Non-U.S. Upstream Owners has adopted
resolutions, which were previously approved by the Commission, to
incorporate these concepts with respect to itself, as well as its board
members, officers, employees, and agents (as applicable), to the extent
that they are involved in the activities of the Exchange.\24\ For
example, the resolution of each of such Non-U.S. Upstream Owners
provides that it shall comply with the U.S. federal securities laws and
the rules and regulations thereunder and shall cooperate with the
Commission and with the Exchange. In addition, the resolution of each
of such Non-U.S. Upstream Owners provides that the board members,
including each person who becomes a board member, would so consent to
comply and cooperate and the particular Non-U.S. Upstream Owner would
take reasonable steps to cause its officers, employees, and agents to
also comply and cooperate, to the extent that he or she is involved in
the activities of the Exchange.
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\24\ See supra note 16. See also SR-ISE-2007-101, supra note 5;
SR-ISE-2012-21, supra note 6.
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In addition to these resolutions, and due to concerns about the
ability of EGD to provide the Commission with direct access to
information under Swiss law, EGD and Eurex Z[uuml]rich previously
entered into an ``Agreement and Consent,'' in which EGD agreed to
provide information related to the activities of the Exchange,
including books and records of EGD related to the activities of the
Exchange, to the Commission, through Eurex Z[uuml]rich. Eurex
Z[uuml]rich in turn, would provide such information to the Swiss
Financial Market Supervisory Authority FINMA (``FINMA''), which agreed
to serve as a conduit for unfiltered delivery of books and records of
EGD related to the activities of the Exchange to the Commission (the
``FINMA Procedure''). The FINMA Procedure was designed to ensure that
EGD would (1) cooperate with the Commission and the Exchange; (2)
comply with U.S. federal securities laws; (3) comply with the
inspection and copying of EGD's books and records; (4) agree that EGD's
books, records, officers, directors and employees be deemed to be those
of the Exchange; (5) maintain confidentiality of information pertaining
to the self-regulatory function of the Exchange; (6) preserve the
independence of the self-regulatory function of the Exchange; (7) take
reasonable steps to cause EGD's officers, directors and employees to
consent to the applicability to him or her of the resolutions described
immediately above; and (8) take reasonable steps to cause EGD's agents
to cooperate with the Commission and the Exchange.\25\
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\25\ See SR-ISE-2012-21, supra note 6.
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As EGD and Eurex Z[uuml]rich will cease to be Non-U.S. Upstream
Owners of the Exchange after the Transactions, the Exchange proposes
administrative changes, such that the resolutions of these entities, as
referenced above, along with the Agreement and Consent, will no longer
be rules of the Exchange as of a date in December 2014 that corresponds
to the effective closing date of the applicable step in the
[[Page 67227]]
Transactions.\26\ The Exchange proposes further administrative changes
related to similar resolutions of entities that had previously been
Non-U.S. Upstream Owners of the Exchange, but whose status as such has
since ceased, such that these resolutions would similarly cease to be
rules of the Exchange.\27\
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\26\ The ``Form of Swiss Parent Corporate Resolutions'' is
attached hereto as Exhibit 5D in relation to Eurex Z[uuml]rich. The
``Form of EGD Corporate Resolution'' is attached hereto as Exhibit
5E. The ``Form of Agreement and Consent between EGD and Eurex
Z[uuml]rich'' is attached hereto as Exhibit 5F. As referenced above,
resolutions in relation to board members, officers, employees, and
agents (as applicable) of EGD and Eurex Z[uuml]rich also would cease
accordingly.
\27\ Specifically, SIX Swiss Exchange AG (``SIX Swiss
Exchange,'' which was f/k/a SWX Swiss Exchange AG), SIX Group AG
(``SIX Group,'' which was f/k/a SWX Group AG) and Verein SWX Swiss
Exchange AG (``Verein SWX'') previously were Non-U.S. Upstream
Owners of the Exchange. Their status as such ceased on April 30,
2012 when EGD became a Non-U.S. Upstream Owner of the Exchange. See
SR-ISE-2012-21, supra note 6. The ``Form of Swiss Parent Corporate
Resolutions'' attached hereto as Exhibit 5D in relation to Eurex
Z[uuml]rich also serves to eliminate the respective resolutions for
SIX Swiss Exchange and SIX Group as rules of the Exchange. The
``Form of Swiss Parent Association Resolutions'' attached hereto as
Exhibit 5G serves to eliminate the respective resolutions for Verein
SWX as rules of the Exchange. Additionally, and as described in note
26, resolutions in relation to board members, officers, employees,
and agents (as applicable) of SIX Swiss Exchange, SIX Group and
Verein SWX also would cease accordingly.
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ISE LLC Agreement
In addition to the changes described above, the Exchange proposes
to amend the ISE LLC Agreement with respect to distributions. Section
3.1 of the ISE LLC Agreement currently provides, in part, that the
Exchange is authorized to issue a single class of Limited Liability
Company Interest, as defined in the Delaware Limited Liability Company
Act,\28\ to ISE Holdings, its sole direct parent, which shall convey
all rights to the profits and losses of the Exchange and the right to
receive distributions of the assets of the Exchange. Currently,
however, Article III of the ISE LLC Agreement does not specifically
address any restrictions on such distributions. Proposed new Section
3.3 to the ISE LLC Agreement would provide that, notwithstanding any
provision to the contrary contained in the ISE LLC Agreement, (i) the
Exchange would not be required to make a distribution to ISE Holdings
if such distribution would violate the Delaware Limited Liability
Company Act, any other applicable law, or is otherwise required to
fulfill the regulatory functions or responsibilities of the Exchange,
and (ii) Regulatory Funds will not be used for non-regulatory purposes,
but rather shall be used to fund the legal, regulatory and surveillance
operations of the Exchange and the Exchange will not make any
distribution to ISE Holdings using Regulatory Funds.\29\ The addition
of proposed new Section 3.3 to the ISE LLC Agreement would ensure that
any distributions by the Exchange to ISE Holdings, and subsequently to
its indirect upstream owners, including U.S. Exchange Holdings and the
Non-U.S. Upstream Owners, would not be made: (i) In violation of the
xchange's legal and regulatory responsibilities; or (ii) with
Regulatory Funds.\30\
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\28\ 6 Del.C. Sec. 18-101, et seq.
\29\ Existing Section 3.3 of the ISE LLC Agreement would be
renumbered accordingly as Section 3.4. For purposes of proposed new
Section 3.3, the term ``Regulatory Funds'' means fees, fines or
penalties derived from the regulatory operations of the Exchange,
provided that Regulatory Funds does not include revenues derived
from listing fees, market data revenues, transaction revenues or any
other aspect of the commercial operations of the Exchange or a
facility of the Exchange, even if a portion of such revenues are
used to pay costs associated with the regulatory operations of the
Exchange. As a result of the change, the ISE LLC Agreement and the
ISE Gemini limited liability company agreement would address
distributions in the same manner. See Securities Exchange Act
Release No. 73196 (September 23, 2014), 79 FR 58387 (September 29,
2014) (SR-ISEGemini-2014-23). ISE Gemini is proposing a related
change to its respective limited liability company agreement in SR-
ISEGemini-2014-24. As a result, the language would be identical for
both the Exchange and ISE Gemini.
\30\ The proposed amended ISE LLC Agreement is attached hereto
as Exhibit 5H. In addition to these substantive changes, the
Exchange proposes to retitle the ISE LLC Agreement as the ``Third''
Amended and Restated Limited Liability Company Agreement, update the
date thereof, update the table of contents, update the name of the
Exchange's President and Chief Executive Officer and update the
address of the Registered Agent in Section 1.5.
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U.S. Exchange Holdings COI
Lastly, the Exchange proposes to make a non-substantive,
administrative change to the U.S. Exchange Holdings COI to update a
reference therein to the Trust Agreement. Article THIRTEENTH of the
U.S. Exchange Holdings COI contains outdated references to (i) the
``Amended and Restated'' Trust Agreement, which is currently the
``Second Amended and Restated'' Trust Agreement and, as discussed
herein, will become the ``Third Amended and Restated'' Trust Agreement;
and (ii) the effective date of the Trust Agreement, which previously
changed from February 4, 2010 to April 30, 2012 \31\ and, as discussed
herein, will further change to a date in December 2014 that corresponds
to the effective closing date of the applicable step in the
Transactions. The Exchange proposes to update these references. The
Exchange also proposes to add language specifying that the Trust
Agreement may be amended, restated or replaced from time to time,
retitle the document as the ``Third'' Amended and Restated Certificate
of Incorporation of U.S. Exchange Holdings, and update the effective
date thereof.\32\ Finally, the Exchange proposes to remove references
to EDGA Exchange and EDGX Exchange from the definition of ``Controlled
National Securities Exchange'' in Article TENTH.\33\
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\31\ See supra note 6.
\32\ The proposed amended U.S. Exchange Holdings COI is attached
hereto as Exhibit 5I. Article SIXTEENTH of the U.S. Exchange
Holdings COI provides that, for so long as U.S. Exchange Holdings
shall control, directly or indirectly, the Exchange, or facility
thereof, before any amendment to or repeal of any provision of the
U.S. Exchange Holdings COI shall be effective, the same shall be
submitted to the board of directors of the Exchange, and if the same
must be filed with, or filed with and approved by, the Commission
before the same may be effective, under Section 19 of the Act and
the rules promulgated thereunder, then the same shall not be
effective until filed with, or filed with and approved by, the
Commission, as the case may be.
\33\ See supra note 22.
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Summary
Upon the consummation of the Transactions, including the proposed
changes to the COD, COI, Trust Agreement, ISE LLC Agreement, and U.S.
Exchange Holdings COI (and related resolutions and agreements ceasing
to be rules of the Exchange), the Exchange will continue to operate and
regulate its market and members in the same exact manner as it did
prior to the Transactions. The Transactions will not impair the ability
of ISE Holdings, the Exchange, or any facility thereof, to carry out
their respective functions and responsibilities under the Act.
Moreover, the Transactions will not impair the ability of the
Commission to enforce the Act with respect to the Exchange and its Non-
U.S. Upstream Owners, including each of their directors, officers,
employees and agents, to the extent they are involved in the activities
of the Exchange. As such, the Commission's plenary regulatory authority
over the Exchange will not be affected by the approval of this proposed
rule change.
2. Statutory Basis
The Exchange believes that this proposal is consistent with Section
6(b)of the Act,\34\ in general, and furthers the objectives of Section
6(b)(1) of the Act,\35\ 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 Act and to comply, and to enforce compliance by its
exchange members and persons associated with
[[Page 67228]]
its exchange members, with the provisions of the Act, the rules and
regulations thereunder, and the rules of the Exchange. The Exchange
will operate in the same manner following the Transactions as it
operates today. Thus, the Commission will continue to have plenary
regulatory authority over the Exchange, as is the case currently with
the Exchange. The proposed rule change is consistent with and will
facilitate an ownership structure that will continue to provide the
Commission with appropriate oversight tools to ensure that the
Commission will have the ability to enforce the Act with respect to the
Exchange and its direct and indirect Non-U.S. Upstream Owners,
including each of their directors, officers, employees and agents, to
the extent they are involved in the activities of the Exchange.
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\34\ 15 U.S.C. 78s(b).
\35\ 15 U.S.C. 78s(b)(1).
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The Exchange also believes that this filing furthers the objectives
of Section 6(b)(5) \36\ of the Act because the proposed rule change
would be consistent with and facilitate a governance and regulatory
structure that is designed to prevent fraudulent and manipulative acts
and practices, to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to, and
perfect the mechanism of a free and open market and a national market
system and, in general, to protect investors and the public interest.
Specifically, the Exchange believes that the proposed rule change will
continue to provide the Commission and the Exchange with access to
necessary information that will allow the Exchange to efficiently and
effectively enforce compliance with the Act, as well as allow the
Commission to provide proper oversight, which will ultimately promote
just and equitable principles of trade and protect investors. In
addition, the Exchange believes that the proposed rule change will
continue to preserve the independence of the Exchange's self-regulatory
function and ensure that the Exchange will be able to obtain any
information it needs in order to detect and deter any fraudulent and
manipulative acts in its marketplace and carry out its regulatory
responsibilities under the Act.
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\36\ 15 U.S.C. 78f(b)(5).
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Approval of this proposed rule change will enable ISE Holdings to
continue its operations and the Exchange to continue its orderly
discharge of regulatory duties to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
to foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities, to remove impediments to
and perfect the mechanism of a free and open market and a national
market system, and, in general, to protect investors and the public
interest.
Finally, the Exchange is not proposing any significant or novel
regulatory issues, nor is it proposing any changes to the Exchange's
operational or trading structure in connection with the Transactions.
Instead, the Exchange represents that the proposed rule change consists
of administrative amendments to ISE Holdings' COI, COD and the Trust
Agreement (along with changes to the ISE LLC Agreement related to
distributions; a non-substantive, administrative change to the U.S.
Exchange Holdings COI; and administrative changes with respect to
certain resolutions and agreements in relation to entities that are or
were Non-U.S. Upstream Owners of the Exchange, but whose status as such
has already ceased, or that will cease as a result of the Transactions,
such that the resolutions and agreements will cease to be rules of the
Exchange), and that no changes will be made to other aspects of the
Exchange's organizational documents that were previously approved by
the Commission.
B. Self-Regulatory Organization's Statement on Burden on Competition
In accordance with Section 6(b)(8) of the Act,\37\ the Exchange
believes that the proposed rule change would not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. The Exchange does not believe that the proposed
rule change implicates any competitive issues. Rather, the Transactions
merely represent a restructuring of indirect ownership interests of the
Exchange, and will not involve the introduction of any new direct or
indirect owners or any entity or individual that would have the right
to direct the actions of the Exchange or vote the shares of the
Exchange. As such, the Exchange believes that the proposal is
consistent with the Act.
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\37\ 15 U.S.C. 78f(b)(8).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the publication date of this notice or within
such longer period (1) as the Commission may designate up to 45 days of
such date if it finds such longer period to be appropriate and
publishes its reasons for so finding or (2) as to which the self-
regulatory organization consents, the Commission will:
(A) By order approve or disapprove such Proposed Rule Change; or
(B) institute proceedings to determine whether the Proposed Rule
Change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as modified by Amendment No. 1, is consistent with the Act.
Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-ISE-2014-44 on the subject line.
Paper Comments
Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-ISE-2014-44. This file
number should be included on the subject line if email is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public
[[Page 67229]]
Reference Room on official business days between the hours of 10:00
a.m. and 3:00 p.m. Copies of such filing also will be available for
inspection and copying at the principal offices of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-ISE-2014-44, and should be
submitted on or before December 3, 2014.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\38\
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\38\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-26690 Filed 11-10-14; 8:45 am]
BILLING CODE 8011-01-P