

[Federal Register: August 10, 2006 (Volume 71, Number 154)]
[Notices]               
[Page 45868-45875]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au06-129]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54273; File No. SR-ISE-2006-45]

 
Self-Regulatory Organizations; International Securities Exchange, 
Inc.; Notice of Filing of a Proposed Rule Change Relating to 
Establishing ISE Stock Exchange as a Facility of International 
Securities Exchange, Inc.

 August 3, 2006.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on July 31, 2006, the International Securities Exchange, Inc. (``ISE'' 
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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The ISE proposes to establish ISE Stock Exchange (``ISE Stock'') as 
a facility, as that term is defined in section 3(a)(2) of the Act,\3\ 
of the ISE. ISE states that ISE Stock would administer a fully 
automated marketplace for the trading of equity securities by 
Electronic Access Members, or EAMs, of ISE under the rules of ISE. ISE 
Stock would be operated by ISE Stock Exchange, LLC (``ISE Stock, 
LLC''), a Delaware limited liability company. In this filing, the 
Exchange is submitting to the Commission: the Certificate of Formation 
(Exhibit 5(a)); the proposed Second Amended and Restated Limited 
Liability Company Agreement of ISE Stock (``LLC Agreement'') (Exhibit 
5(b)); a Description of Services under the Management Agreement Exhibit 
5(c)); Rule Changes of International Securities Exchange (Exhibit 
5(d)); Constitutional

[[Page 45869]]

Changes of International Securities Exchange, LLC (Exhibit 5(e)). The 
ISE states that the Certificate of Formation and the LLC Agreement are 
the source of ISE Stock LLC's governance and operating authority and, 
therefore, function in a similar manner as articles of incorporation 
and by-laws function for a corporation. Certain sections of these 
documents are discussed below. The full text of Exhibit 5(a) through 
(e) is available on the Commission's Web site at http://www.sec.gov, the Web site of the Exchange at http://www.iseoptions.com, at the 

principal office of the Exchange, and at the Commission's Public 
Reference Room.
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    \3\ 15 U.S.C. 78c(a)(2).
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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 Exchange 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 Exchange 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to establish ISE Stock as a facility, as that 
term is defined in section 3(a)(2) of the Act,\4\ of the ISE. ISE Stock 
would administer a fully automated marketplace for the trading of 
equity securities by EAMs of ISE under the rules of ISE. ISE Stock 
would be operated by ISE Stock, LLC, a Delaware limited liability 
company. In this filing, the Exchange is submitting to the Commission 
the Certificate of Formation and the LLC Agreement of ISE Stock, LLC. 
The Certificate of Formation and the LLC Agreement are the source of 
ISE Stock, LLC's governance and operating authority and, therefore, 
function in a similar manner as articles of incorporation and by-laws 
function for a corporation.
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    \4\ 15 U.S.C. 78c(a)(2).
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    The ISE is a founding and controlling member of ISE Stock, LLC. ISE 
owns all of the Class A Membership Units of ISE Stock, LLC, 
representing 51% of the voting securities of ISE Stock, LLC. In 
addition to its ownership stake in ISE Stock, LLC, ISE will enter into 
a management agreement (the ``Management Agreement'') with ISE Stock, 
LLC. Pursuant to the Management Agreement, ISE Stock, LLC would appoint 
ISE as ISE Stock, LLC's manager (``Manager'') to perform certain 
management, operational, and related services. In particular, as 
Manager, ISE would have responsibility for all regulatory functions 
related to the facility (including conducting market surveillance for 
trading on ISE Stock). Moreover, the Board of Directors of ISE would be 
required to approve any changes to the Certificate of Formation and the 
LLC Agreement of ISE Stock, LLC that are required to be filed with the 
Commission pursuant to section 19(b) of the Act and Rule 19b-4 
thereunder.\5\ ISE Stock, LLC would have responsibility for the 
business operations of the facility to the extent those activities are 
not inconsistent with the regulatory and oversight functions of the ISE 
as Manager. This means that ISE Stock, LLC would not interfere with 
ISE's self-regulatory responsibilities. ISE is a registered ``national 
securities exchange'' under Section 6 of the Act \6\ and a self-
regulatory organization (``SRO''). ISE represents that it has adequate 
funds to discharge all regulatory functions related to the facility 
that it proposes to undertake to perform under the Management Agreement 
and the LLC Agreement.\7\
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    \5\ LLC Agreement, Section 12.1.
    \6\ 15 U.S.C. 78f.
    \7\ Telephone conference between Michou H.M. Nguyen, Special 
Counsel, Division of Market Regulation (``Division''), Commission, 
and Tracy Tang, Assistant General Counsel, Exchange, on August 2, 
2006. (clarifying that the sentence refers to the LLC Agreement as 
well) (herein after referred to as ``August 2nd Telephone 
Conference''). See also LLC Agreement, Section 9.2(d).
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    In this filing, the Exchange is submitting to the Commission the 
Certificate of Formation and the LLC Agreement of ISE Stock, LLC 
specifically relating to the control and governance of ISE Stock, LLC 
that would ensure that the ISE has the authority within ISE Stock, LLC 
to maintain its responsibility for all regulatory functions related to 
the ISE Stock facility. The LLC Agreement would ensure that the SEC and 
the ISE would have regulatory authority over investors and members of 
the advisory board of ISE Stock, LLC (the ``Advisory Board''). The 
Exchange will submit separate filings to establish ISE rules relating 
to listing, membership and trading on ISE Stock. As the purpose of this 
filing is to focus on only those provisions which are directly related 
to the ISE authority for all regulatory functions of its proposed ISE 
Stock facility, the Exchange's discussion in this filing will be 
limited to those relevant provisions of the LLC Agreement.

Description of LLC Membership Interests in ISE Stock, LLC

    As an LLC, ownership of ISE Stock, LLC is represented by limited 
liability company membership interests in ISE Stock, LLC. The holders 
of such membership interests are referred to as the members (the 
``Members'') of ISE Stock, LLC. The membership interests are divided 
into two classes--Class A and Class B limited liability company 
membership units (collectively, the ``Units''). The Units represent 
equity interests in ISE Stock, LLC and entitle the holders thereof to 
participate in certain of ISE Stock, LLC's allocations and 
distributions. Each ``Class A Unit'' represents a limited liability 
company membership interest in ISE Stock, LLC and as a class, the 
holders of the Class A Units hold fifty-one percent (51%) of the 
aggregate voting rights of all Members. Each holder of a Class A Unit 
has a vote, in respect of each Class A Unit held by such holder of 
record on each matter on which holders of Units are entitled to vote, 
equal to the product of (A) 51 and (B) a fraction, whose numerator is 
the number of Class A Units then held by such holder and whose 
denominator is the number of Class A Units then held by all holders of 
Class A Units.\8\ Currently, ISE holds all of the Class A Units, making 
it a fifty-one percent (51%) owner of ISE Stock, LLC. Each ``Class B 
Unit'' represents a limited liability company membership interest in 
ISE Stock, LLC. Each holder of a Class B Unit shall have a vote, in 
respect of each Class B Unit held by such holder of record on each 
matter on which holders of Class B Units shall be entitled to vote as 
specifically required by the LLC Agreement or by the Delaware Limited 
Liability Company Act (``DLLCA''), \9\ equal to the product of (A) 49 
and (B) a fraction, whose numerator is the number of Class B Units then 
held by such holder and whose denominator is the number of Class B 
Units then held by all holders of Class B Units.\10\ There are 49 Class 
B Units issued and outstanding, held by 11 Class B Unit holders. The 
ISE represents that no Class B Unit holder owns more than 5 units.
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    \8\ LLC Agreement, Section 3.2(a).
    \9\ August 2nd Telephone Conference (clarifying that reference 
is to the DLLCA and not the Act).
    \10\ LLC Agreement, Section 3.2(b).

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[[Page 45870]]

Management of ISE Stock, LLC

    As the Manager, ISE would have the authority to make all decisions 
regarding the business of ISE Stock, LLC and matters concerning the 
Units, such as whether or not to authorize distributions.\11\ In 
certain limited circumstances, the Manager would need the approval of 
two-thirds of the disinterested members of the Advisory Board prior to 
taking certain actions, as discussed below. The Manager would be 
responsible for the control and management of the business of ISE 
Stock, LLC, and must exercise good faith and integrity in handling its 
affairs.\12\
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    \11\ LLC Agreement, Section 8.1 and 8.12.
    \12\ August 2nd Telephone Conference (removing language).
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    Under Section 7.1 of the LLC Agreement, other than as set forth in 
the LLC Agreement or required by the DLLCA\13\ or by the Commission, 
the Members do not participate in the management or control of ISE 
Stock, LLC's business, they do not transact any business for ISE Stock, 
LLC, and they do not have the power to act for or bind ISE Stock, LLC. 
All of those powers are vested solely and exclusively in the Manager. 
Specifically, under Section 8.1 of the LLC Agreement, subject to the 
limitations provided in the LLC Agreement and except as specifically 
provided therein, the Manager shall have exclusive and complete 
authority and discretion to manage the operations and affairs of ISE 
Stock, LLC and to make all decisions regarding the business of ISE 
Stock, LLC and shall have the power to act for or bind ISE Stock, LLC. 
Any action taken by the Manager shall constitute the act of and serve 
to bind ISE Stock, LLC. Further, except as otherwise specifically 
provided in the LLC Agreement, the Manager has all rights and powers of 
a ``manager'' under the DLLCA, and shall have all authority, rights and 
powers in the management of ISE Stock, LLC business to do any and all 
other acts and things necessary, proper, convenient or advisable to 
effectuate the purposes of the LLC Agreement.
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    \13\ August 2nd Telephone Conference (clarifying that reference 
is to the DLLCA and not the Act).
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    Under Section 8.13 of the LLC Agreement, any replacement and 
appointment of the Manager, and any assignment of the rights and 
obligations of the Manager under the Management Agreement, shall be 
subject to the rule filing process pursuant to section 19 of the Act. 
ISE believes that this section provides the Commission with the 
authority to review and subject to public comment any replacement of 
the Manager of ISE Stock which the Commission may deem to have the 
potential to affect ISE's self-regulatory responsibilities regarding 
its proposed ISE Stock facility.

Governance of ISE Stock, LLC

    Section 8.2(d)(i) of the LLC Agreement establishes the Advisory 
Board of ISE Stock, LLC as a general advisory board and provides that 
the Advisory Board will have no power or authority to act for ISE 
Stock, LLC or to otherwise participate in the ISE Stock's management, 
except for certain limited matters. Other than the matters for which 
approval of the Advisory Board is specifically required by the LLC 
Agreement, any actions taken by the Advisory Board are advisory only 
and neither the Manager nor any of its Related Persons are required or 
otherwise bound to act in accordance with any decision, action or 
comments of the Advisory Board. The Advisory Board has no power or 
authority to act for ISE Stock, LLC or to otherwise participate in ISE 
Stock, LLC management. All decisions, including responsibility for the 
management of ISE Stock, LLC, rest with the manager, and in no event 
will a member of the Advisory Board be considered a ``manager'' of ISE 
Stock, LLC.
    Section 8.2(d)(ii) provides that the purpose of the Advisory Board 
is to: (1) Review and assess any potential conflicts of interest that 
may arise between ISE Stock, LLC, on the one hand, and the Manager, any 
Member and/or any of their respective Related Persons,\14\ on the other 
hand (including without limitation conflicts with respect to the 
receipt by the Manager, or its Related Persons, of fees for services 
rendered to ISE Stock, LLC); and (2) generally to consult with the 
Manager on the ISE Stock, LLC's progress in achieving its business 
objectives.
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    \14\ ``Related Person'' means (1) With respect to any Person, 
any executive officer (as defined under Rule 3b-7 under the Act), 
director, general partner, manager or managing member, as 
applicable, and all ``affiliates'' and ``associates'' of such Person 
(as such terms are defined in Rule 12b-2 under the Act); (2) with 
respect to any Person constituting a ``Exchange Member'' (as such 
term is defined in the Constitution of ISE, a copy of which will be 
provided to any member of ISE Stock upon written request therefore), 
any broker or dealer with which such ``Exchange Member'' is 
associated; (3) with respect to any Person that is an executive 
officer (as defined under Rule 3b-7 under the Act), director, 
general partner, manager or managing member of a company, 
corporation or similar entity, such company, corporation or entity, 
as applicable; and (4) any two or more Persons that have any 
agreement, arrangement or understanding (whether or not in writing) 
to act together for the purpose of acquiring, voting, holding or 
disposing of Units of ISE Stock, LLC; and the term ``beneficially 
owned'' and derivative or similar words shall have the meaning set 
forth in Regulation 13D-G under the Act. LLC Agreement Section 2.1 
``Definitions.'' August 2nd Telephone Conference (conforming purpose 
section to text of LLC Agreement).
    ``Person'' means any individual, partnership, limited liability 
company, association, corporation, trust or other entity. LLC 
Agreement Section 2.1 ``Definitions.''
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    Section 8.2(d)(iii) provides that the Advisory Board consists of 
seven members. Each Member of ISE Stock, LLC may nominate a candidate 
for election to serve on the Advisory Board. Three members of the 
Advisory Board shall be officers, directors, or partners of holders of 
the Class A Units, and shall be elected annually by a plurality of the 
holders of the Class A Units voting together as a class (each a ``Class 
A Advisory Board Member''). Each Class A Advisory Board member shall 
serve for a term of one year. Four members of the Advisory Board shall 
be officers, directors, or partners of holders of the Class B Units, 
and, except as provided below, shall be elected annually by a plurality 
of the holders of the Class B Units voting together as a class (each a 
``Class B Advisory Board Member''). In any situation where an Advisory 
Board Member's job status changes, either upon a significant change in 
the employment status at the same employer or upon a change of 
employer, or if the Member employing the Advisory Board member ceases 
to be a holder of Class B Units, the Advisory Board member must tender 
his or her resignation to the Manager, which the Manager, in 
consultation with the Advisory Board, may, but need not, accept. 
Notwithstanding any of the foregoing, no Member, other than ISE, shall 
have more than one representative elected to the Advisory Board during 
any term. The initial Class B Advisory Board Members shall serve 
staggered terms with (x) two of such Class B Advisory Board Members 
serving two consecutive one-year terms, and (y) the other two of such 
Class B Advisory Board Members serving three consecutive one-year 
terms. Thereafter, each Class B Advisory Board Member shall serve for a 
term of one year. In no event shall any Class B Advisory Board Member 
serve more than three consecutive one-year terms. Each Class B Advisory 
Board Member will serve until the conclusion of its one-year term, and 
until such Class B Advisory Board Member's successor has been elected, 
or re-elected as permitted under the LLC Agreement, by a plurality of 
the holders of the Class B Units voting together as a class, except in 
the event of such Class B Advisory Board Member's earlier death, 
resignation, or termination.
    Under Section 8.2(e), ISE Stock, LLC also has advisory committees 
(the

[[Page 45871]]

``Advisory Committees''), each consisting of up to ten individuals who 
consult with ISE Stock, LLC and assist with the development of (1) 
Agency broker trading; (2) institutional trading; (3) technology; and 
(4) bulk quoting. As with the Advisory Board, the Advisory Committees 
have no power or authority to act for ISE Stock, LLC or to otherwise 
participate in management.
    The ISE believes that these limitations on the powers of the 
Advisory Board and Advisory Committees of ISE Stock, LLC will enable 
ISE to have complete authority over the control the actions of ISE 
Stock, LLC, especially as they relate to regulatory responsibilities.
    Under Section 8.2(d)(vii) of the LLC Agreement, in discharging his 
or her responsibilities as a member of the Advisory Board, such member 
shall take into consideration the effect that ISE Stock LLC's actions 
would have on the ability of ISE Stock, LLC \15\ to carry out its 
responsibilities under the Act and whether or not his or her actions as 
a member of the Advisory Board would cause ISE Stock, LLC to engage in 
conduct that fosters and does not interfere with ISE Stock LLC's 
ability 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 
mechanisms of a free and open market and a national market system; and, 
in general, to protect investors and the public interest. Furthermore, 
in discharging his or her responsibilities as a member of the Advisory 
Board, each member shall comply with the Federal securities laws and 
the rules and regulations thereunder and shall cooperate with ISE and 
the Commission pursuant to their respective regulatory authority and 
the provisions of the LLC Agreement.
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    \15\ August 2nd Telephone Conference (clarifying that sentence 
relates to ISE Stock, LLC and not ISE).
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    Under Section 8.2(d)(viii) of the LLC Agreement, the Manager, in 
its sole discretion, may, after appropriate notice and opportunity for 
hearing, terminate an Advisory Board member: (a) In the event such 
Advisory Board member has violated any provision of the LLC Agreement, 
any Federal or state securities law, or (b) if the Manager determines 
that such action is necessary or appropriate in the public interest or 
for the protection of investors.
    ISE believes that these provisions would require all members of ISE 
Stock's Advisory Board, regardless of their association with ISE, to 
adhere to regulatory responsibilities in that they must comply with 
Federal securities laws and the rules and regulations promulgated 
thereunder, and cooperate with the Commission and the ISE pursuant to 
their regulatory authority. In addition, all members of the Advisory 
Board would be required to take into consideration and facilitate ISE's 
responsibility to comply with the requirements under section 6(b)(5) of 
the Act.\16\ Members of the Advisory Board that do not adhere to these 
requirements face termination from the ISE Stock Advisory Board and 
possible sanctions by regulatory authorities.
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    \16\ August 2nd Telephone Conference (clarifying that ISE as an 
SRO has the responsibilities under 6(b)(5) of the Act and not ISE 
Stock, LLC and clarifying ISE's interpretation of Section 
8.2(d)(vii) of the LLC Agreement). Section 8.2(d)(vii) of the LLC 
Agreement states that Advisory Board members shall comply with the 
Federal securities laws and the rules and regulations thereunder and 
shall cooperate with ISE and the Commission pursuant to their 
respective regulatory authority. ISE interprets this to mean that 
Advisory Board members must take into consideration and facilitate 
ISE's responsibilities under section 6(b)(5) of the Act.
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Voting Limitations of Members

    Under Section 7.11 of the LLC Agreement, no Person (other than 
ISE), either alone or together with its Related Persons, as of any 
record date for the determination of members entitled to vote on any 
matter, shall be entitled to: (i) Vote or cause the voting of Units 
beneficially owned by such Person or its Related Persons, in person or 
by proxy or through any voting agreement, plan, or arrangement, to the 
extent that such Units represent in the aggregate more than twenty 
percent (20%) of voting power of the then-issued and outstanding Units 
(such threshold being hereinafter referred to as the ``Voting 
Limitation''); or (ii) enter into any voting agreement, plan, or 
arrangement that would result in Units beneficially owned by such 
Person or its Related Persons, subject to such voting agreement, plan, 
or arrangement not being voted on a matter, or any proxy relating 
thereto being withheld, where the effect of that voting agreement, 
plan, or arrangement would be to enable any Person, alone or together 
with its Related Persons, to exceed the Voting Limitation. ISE Stock, 
LLC shall disregard any such votes purported to be cast in excess of 
the Voting Limitation.
    The limitations imposed by Sections 7.11 may be waived by the 
Manager, if in its sole discretion, it consented to expressly permit 
such waiver of the Voting Limitation; and such waiver shall have been 
filed with, and approved by, the Commission under section 19(b) of the 
Act and shall have become effective thereunder. In granting a waiver, 
the Manager must have determined that: (i) The exercise of such voting 
rights or the entering of such agreement, plan or other arrangement, as 
applicable, by such Person, either alone or together with its Related 
Persons, will not impair the ability of the ISE Stock, LLC and ISE, as 
the manager, to carry out its functions and responsibilities, 
including, but not limited to, under the Act, is otherwise in the best 
interests of the ISE Stock, LLC and its Members; (ii) such voting 
rights by such Person, either alone or together with its Related 
Persons, will not impair the ability of the Commission to enforce the 
Act; (iii) neither such Person nor its Related Persons are subject to 
any applicable ``statutory disqualification'' (within the meaning of 
section 3(a)(39) of the Act); and (iv) neither such Person nor its 
Related Persons is an ``Exchange Member'' (as such term is defined in 
the Constitution of ISE).
    The ISE believes that these provisions will prevent any Person from 
exercising undue control over ISE Stock, LLC and will protect the 
ability of ISE, as well as other investors, to exercise their full 
ownership rights. By specifically imposing a Voting Limitation on any 
Person that owns Units which represent in the aggregate more than 
twenty percent (20%) of the voting power then entitled to be cast, ISE 
would ensure that it is in all cases, able to maintain proper control 
over the exercise of its regulatory function in relation to ISE Stock, 
LLC, and is not subject to influence that may be adverse to its 
regulatory responsibilities from any Person who may own a substantial 
number of the outstanding Units. This provision and other related 
provisions relating to notice and rule filing requirements with respect 
to any Person who acquires certain Percentage Interest \17\ levels in 
ISE Stock would

[[Page 45872]]

serve to protect the integrity of ISE's self-regulatory 
responsibilities.
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    \17\ ``Percentage Interest'' shall mean (i) As of any time when 
the number of outstanding Class B Units does not exceed 49, (x) with 
respect to the Class B Units one percent (1%) (or fraction thereof) 
as to each Unit (or fraction thereof) held by such holder of Class B 
Units and (y) as to the holders of Class A Units, in the aggregate, 
100% less the aggregate Percentage Interest of holders of Class B 
Units as of such time; and as to each holder of a Class A Unit, the 
product of (x) the aggregate Percentage Interest of all holders of 
Class A Units and (y) a fraction, whose numerator is the number of 
Class A Units then held by such holder and whose denominator is the 
number of Class A Units then held by all holders of Class A Units; 
and (ii) as of any time when the number of outstanding Class B Units 
exceeds 49, as to each holder of a Class A Unit or Class B Unit, the 
percentage equivalent of a fraction whose numerator is the number of 
Units held by such holder and whose denominator is the aggregate 
number of Units outstanding. LLC Agreement Section 2.1 
``Definitions.''
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Ownership Limitations of Members and Changes in Ownership

    Under Section 9.2(a) of the LLC Agreement, no Person (other than 
ISE), either alone or together with its Related Persons, at any time, 
may own, directly or indirectly, of record or beneficially, an 
aggregate amount of Units which would result in more than twenty 
percent (20%) Percentage Interest level in ISE Stock, LLC (the 
``Concentration Limitation''). Any transfer of Units that result in the 
acquisition and holding by any Person, alone or together with its 
Related Persons, of an aggregate Percentage Interest level which 
crosses the threshold level of twenty percent (20%) is subject to the 
rule filing process pursuant to Section 19 of the Act. Furthermore, any 
transfer of Units that results in a reduction of ISE's Percentage 
Interest level of Class A Units or Precentage Interest level in ISE 
Stock, LLC below the twenty percent (20%) threshold is subject to the 
rule filing process pursuant to section 19 of the Act.\18\
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    \18\ Telephone conference between Michou H.M. Nguyen, Special 
Counsel, Division, Commission, and Tracy Tang, Assistant General 
Counsel, Exchange, on August 1, 2006. See also LLC Agreement, 
Section 9.2(d).
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    The limitations imposed by Sections 9.2(a) may be waived by the 
Manager, if in its sole discretion, it consented to expressly permit 
such waiver of the Concentration Limitation; and such waiver shall have 
been filed with, and approved by, the Commission under section 19(b) of 
the Act and shall have become effective thereunder. In granting a 
waiver, the Manager must have determined that: (i) Such beneficial 
ownership of Units by such Person, either alone or together with its 
Related Persons, will not impair the ability of ISE Stock, LLC and the 
Manager to carry out its functions and responsibilities, including but 
not limited to, under the Act, is otherwise in the best interests of 
ISE Stock, LLC and its Members; (ii) such beneficial ownership of Units 
by such Person, either alone or together with its Related Persons, will 
not impair the ability of the Commission to enforce the Act; (iii) 
neither such Person nor its Related Persons are subject to any 
applicable ``statutory disqualification'' (within the meaning of 
Section 3(a)(39) of the Act); and (iv) neither such Person nor its 
Related Persons is an ``Exchange Member'' (as such term is defined in 
the Constitution of ISE).
    ISE believes that these provisions provide the Commission with the 
authority to review and subject to public comment any substantial 
transfer of ownership which the Commission may deem to have the 
potential to affect the ISE's self-regulatory responsibilities 
regarding its proposed ISE Stock facility.
    Under Section 9.1, no Member may sell, assign, pledge or in any 
manner dispose of or create or suffer the creation of a security 
interest in or any encumbrance on all or a portion of its Units in the 
Company (the commission of any such act being referred to as a 
``Transfer'', any person who effects a Transfer being referred to as a 
``Transferor'' and any person to whom a Transfer is effected being 
referred to as a ``Transferee'') except in accordance with the terms 
and conditions set forth in Article 9 of the LLC Agreement. Any 
Transfer or purported Transfer of a Unit in ISE Stock, LLC not made in 
accordance with the LLC Agreement shall be null and void and of no 
force or effect whatsoever.
    Section 9.3 provides that a Member may not Transfer all or any 
portion of its Units in ISE Stock, LLC to any Person without the 
consent of the Manager, which consent may be given or withheld in the 
Manager's sole discretion; provided, that, subject to Section 9.10 of 
the LLC Agreement, a Member may transfer all or a portion of its Units 
in ISE Stock, LLC to one or more of its Permitted Transferees \19\ 
without the consent of the Manager or any other Member.\20\
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    \19\ ``Permitted Transferee'' means, with respect to another 
Person, (i) Any Person directly or indirectly owning, controlling or 
holding with power to vote 80% or more of the outstanding voting 
securities of and equity or beneficial interests in such other 
Person, (ii) any Person 80% or more of whose outstanding voting 
securities and equity or beneficial interests are directly or 
indirectly owned, controlled or held with power to vote by such 
other Person, (iii) any Person 80% or more of whose outstanding 
voting securities and equity or other beneficial interests are 
directly or indirectly owned, controlled or held with power to vote 
by a Person directly or indirectly owning, controlling or holding 
with power to vote 80% or more of the outstanding voting securities 
and equity or other beneficial interests of such other Person with 
whom affiliate status is being tested, (iv) any Family Members or 
Family Trusts of such Person and (v) any Member. LLC Agreement 
Section 2.1 ``Definitions.''
    ``Family Members'' means, with respect to any natural Person, 
such Person's spouse, children, parents and lineal descendants of 
such Person's parents. LLC Agreement Section 2.1 ``Definitions.''
    ``Family Trusts'' means, with respect to any natural Person, a 
trust benefiting solely such Person or the Family Members of such 
Person. LLC Agreement Section 2.1 ``Definitions.''
    \20\ If a Member transfers all of its Unit, whether or not the 
transfer is to a Related Person, such transfer must first be 
approved by the Manager. Telephone conference between Michou H.M. 
Nguyen, Special Counsel, Division, Commission, and Tracy Tang, 
Assistant General Counsel, Exchange, on August 1, 2006 (clarifying 
the additional restriction on transfers applicable when all of a 
Member's interest is purported to be transferred). See also LLC 
Agreement, Section 9.3(c).
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    Under Section 9.11, unless a Transferee of a Member's Units becomes 
a Substituted Member,\21\ such Transferee shall have no right to obtain 
or require any information or account of ISE Stock, LLC transactions, 
or to inspect ISE Stock, LLC's books or to vote on ISE Stock, LLC 
matters. Furthermore, any successor or Transferee under the LLC 
Agreement shall be subject to and bound by the LLC Agreement as if 
originally a party to the LLC Agreement.
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    \21\ ``Substituted Member'' means any Person admitted to the 
Company as a substituted Member pursuant to the provisions of 
Article 9. LLC Agreement Section 2.1 ``Definitions.''
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    ISE believes that these transfer restrictions, together with the 
Voting Limitation and Concentration Limitation, are adequately designed 
to prohibit any Person, either alone or with its Related Persons, from 
having the power to control a substantial number of outstanding votes 
entitled to be cast on any matter, and more importantly, that may be 
adverse to ISE's regulatory oversight responsibilities. Moreover, ISE 
believes that these provisions serve to protect the integrity of ISE's 
and the Commission's regulatory oversight responsibilities and allows 
the Commission to review, and subject to public notice and comment, the 
acquisition of substantial ownership or voting power by any Member.

Regulatory Jurisdiction Over Members

    Under Section 6.1(b), each Member acknowledges that to the extent 
that they relate to the business of ISE Stock, LLC, the books, records, 
premises, officers, directors, agents and employees of Members shall be 
deemed to be the books, records, premises, officers, directors, agents 
and employees of ISE Stock, LLC for purposes of and subject to 
oversight pursuant to the Act. Furthermore,\22\ the books, records, 
premises, officers, directors, agents and employees of ISE Stock, LLC 
shall be deemed to be the books, records, premises, officers, 
directors, agents and employees of ISE for purposes of and subject to 
oversight pursuant to the Act. In addition, the books and records of 
ISE Stock, LLC will be kept within the U.S.\23\
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    \22\ August 2nd Telephone Conference (conforming purpose section 
to text of LLC Agreement).
    \23\ LLC Agreement, Section 6.1(a).

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[[Page 45873]]

    Section 13.1(a) of the LLC Agreement generally provides that a 
Member may not disclose any confidential information of ISE Stock or of 
any other Members to any persons, except as expressly provided by the 
LLC Agreement. However, Section 13.1(a) provides exceptions for, among 
other things, disclosure required by the Federal securities laws and 
any other applicable self-regulatory organization, or in response to a 
request by the Commission pursuant to the Act or by ISE. In addition, 
confidential information pertaining to the self-regulatory function of 
ISE (including but not limited to disciplinary matters, trading data, 
trading practices and audit information) contained in the books and 
records of ISE Stock, LLC shall: (i) Not be made available to any 
persons (other than as provided in the next sentence) other than to 
those officers, directors, employees, and agents of ISE Stock, LLC that 
have a reasonable need to know the contents thereof; (ii) be retained 
in confidence by ISE Stock, LLC and the officers, directors, employees 
and agents of ISE Stock, LLC; and (iii) not be used for any commercial 
purposes.\24\ Nothing in the LLC Agreement shall be interpreted as to 
limit or impede the rights of the Commission or ISE to access and 
examine such confidential information pursuant to the Federal 
securities laws and the rules and regulations thereunder, or to limit 
or impede the ability of any Member or any officers, directors, 
employees or agents of ISE Stock, LLC or any Member to disclose such 
confidential information to the Commission or ISE.\25\
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    \24\ LLC Agreement, Section 13.1(b).
    \25\ LLC Agreement, Section 13.1(c). August 2nd Telephone 
Conference (conforming purpose section to text of LLC Agreement).
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    ISE believes that these provisions would help to ensure access to 
ISE's books and records by the Commission, and would help enable the 
Commission to carry out its regulatory responsibilities regarding 
ISE.\26\
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    \26\ August 2nd Telephone Conference (conforming purpose section 
to text of LLC Agreement).
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    Under Section 6.1(c) of the LLC Agreement, ISE Stock, LLC, its 
Members, and officers, directors, agents, and employees of ISE Stock, 
LLC and its Members irrevocably submit to the jurisdiction of the U.S. 
Federal courts, the Commission and ISE, for the purposes of any suit, 
action or proceeding pursuant to the U.S. Federal securities laws, the 
rules or regulations thereunder, directly arising out of, or relating 
to, ISE Stock, LLC activities or Section 6.1 of the LLC Agreement 
(except that such jurisdictions shall also include Delaware for any 
such matter relating to the organizational or internal affairs of ISE 
Stock, LLC), and hereby waives, and agrees not to assert by way of 
motion, as a defense or otherwise in any such suit, action or 
proceeding, any claims that it is not personally subject to the 
jurisdiction of the Commission, that the suit, action or proceeding is 
an inconvenient forum or that the venue of the suit, action or 
proceeding is improper, or that the subject matter hereof may not be 
enforced in or by such courts or agency.\27\
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    \27\ Telephone conference between Michou H.M. Nguyen, Special 
Counsel, Division, Commission, and Tracy Tang, Assistant General 
Counsel, Exchange, on August 1, 2006 (conforming purpose section to 
text of LLC Agreement).
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    Under Section 6.1(d) of the LLC Agreement, ISE Stock, LLC, its 
Members, the officers, directors, agents, and employees of ISE Stock, 
LLC and its Members agree to comply with the Federal securities laws 
and the rules and regulations thereunder and shall cooperate with ISE 
and the Commission pursuant to their respective regulatory authority 
and the provisions of the LLC Agreement; and to engage in conduct that 
fosters and does not interfere with ISE Stock, LLC's ability 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 mechanisms of a 
free and open market and a national market system; and, in general, to 
protect investors and the public interest.\28\
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    \28\ Id.
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    Section 6.1(e) provides that ISE Stock, LLC and each Member shall 
take such action as is necessary to ensure that its respective 
officers, directors, agents, and employees consent in writing to the 
application to them of the applicable provisions of Section 6.1 with 
respect to their ISE Stock, LLC-related activities.\29\
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    \29\ Id.
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    The Exchange believes that these provisions will serve as notice to 
Members that they will be subject to the jurisdiction of the U.S. 
Federal courts, the Commission and the ISE. While Members may represent 
a diverse group of business interests, the ISE believes that it is 
imperative that regulatory cooperation is assured from all Members, 
regardless of each Member's business location, country of domicile or 
other circumstance which the Commission may deem to have the potential 
to be adverse to the regulatory responsibilities and interests of the 
ISE, the Commission, or the U.S. Federal courts. Accordingly, these 
provisions ensure that, should an occasion arise which requires 
regulatory cooperation or jurisdictional submission from ISE Stock, LLC 
or a Member, it will be forthcoming and uncontested.
    Under Section 7.1(b) of the LLC Agreement, the Manager, may, after 
appropriate notice and opportunity for hearing, suspend or terminate a 
Member's voting privilege or membership: (i) In the event such Member 
has violated a provision of this Agreement, any Federal or state 
securities law, (ii) such Member or its Related Persons are subject to 
any applicable ``statutory disqualification'' (within the meaning of 
section 3(a)(39) of the Act); or (iii) if the Manager determines that 
such action is necessary or appropriate in the public interest or for 
the protection of investors.
    ISE believes that this provision would require Members, regardless 
of the nature of their association with ISE, to adhere to regulatory 
responsibilities in that they must comply with Federal securities laws 
and the rules and regulations thereunder, and cooperate with the 
Commission and ISE pursuant to their regulatory authority or face 
severe consequences such as termination of voting rights or ownership. 
In addition, Members would be required to take into consideration and 
facilitate ISE's and ISE Stock's ability to comply with the 
requirements under section 6(b)(5) of the Act.\30\
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    \30\ August 2nd Telephone Conference (clarifying that ISE as an 
SRO has the responsibilities under 6(b)(5) of the Act and not ISE 
Stock, LLC and clarifying ISE's interpretation of Section 6.1(d) of 
the LLC Agreement). Section 6.1(d) of the LLC Agreement states that 
Members shall comply with the Federal securities laws and the rules 
and regulations thereunder and shall cooperate with ISE and the 
Commission pursuant to their respective regulatory authority. ISE 
interprets this to mean that Members must take into consideration 
and facilitate ISE's responsibilities under section 6(b)(5) of the 
Act.
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Fair Representation of Trading Participants, or EAMs
    The Exchange believes that the ISE Stock corporate structure 
assures the fair representation of its members, or trading 
participants, in the selection of its directors and administration of 
its affairs, and satisfies Commission requirements in that one or more 
directors shall be representative of issuers and investors and not be 
associated with a member of the exchange, broker, or dealer.
    The Exchange notes that Members of (or holders of Units in) ISE 
Stock, LLC are not automatically entitled to trading privileges on ISE 
Stock, nor is the purchase of Units a pre-requisite for

[[Page 45874]]

exercising trading privileges on ISE Stock. Rather, in order to 
exercise trading privileges on ISE Stock, a broker-dealer must be an 
approved EAM of ISE. There is only one type of EAM membership for both 
options trading on ISE and equities trading on ISE Stock. When an 
applicant is approved under ISE rules as an EAM, the member is issued 
one share of Class B Common Stock, Series B-3 (a ``B-3 Share''). Under 
the ISE Constitution, holders of B-3 Shares, or EAMs, have the right to 
elect two members (the ``B-3 Directors'') of the Board of Directors of 
ISE (the ``ISE Board''). Nominees for election to the ISE Board to 
serve as Industry Directors, including B-3 Directors, are currently 
made by the Exchange's Nominating Committee, which is not a committee 
of the ISE Board, and is comprised of representatives of the holders of 
each series of Class B Common Stock. Stockholders also may nominate 
Industry Director candidates for election to the ISE Board by petition. 
Accordingly, since trading participants on ISE Stock must be EAMs, and 
since EAMs have the right to elect B-3 Directors of the ISE Board, the 
Exchange believes that ISE Stock trading participants are fairly 
represented on the ISE Board. Additionally, as a result of ISE's stated 
strategy of selling Units to entities that will support trading on ISE 
Stock, trading participants will have representation via the ISE Stock, 
LLC Advisory Board.
    The Exchange proposes to modify the language in Rule 312 
(Limitation on Affiliation between the Exchange and Members) to clarify 
that this provision covers not only the Exchange, but the ISE Stock 
Exchange LLC, as a facility of the ISE, as well.

Reorganization Into a Holding Company Structure

    Finally, the Exchange notes that it intends to reorganize into a 
holding company structure on September 1, 2006, in the manner described 
in Securities Exchange Act Release No. 53705 (April 21, 2006) (SR-ISE-
2006-04) (the ``Reorganization'').\31\ Upon the Reorganization, 
International Securities Exchange, LLC shall become the registered 
``national securities exchange'' under section 6 of the Act, the SRO 
and Manager of ISE Stock, LLC. International Securities Exchange 
Holdings, Inc. (``ISE Holdings'') shall become the holder of the Class 
A Units of ISE Stock, LLC.
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    \31\ See Securities Exchange Act Release No. 53705 (April 21, 
2006), 71 FR 25260 (April 28, 2006) (SR-ISE-2006-04).
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    Prior to the Reorganization, the provisions relating to, among 
other things, ownership and voting limitations (and exceptions 
therefrom) are applicable to ISE, as the holder of the Class A Units. 
Upon the Reorganization, those same provisions are applicable to ISE 
Holdings, as the holder of the Class A Units. The Exchange believes 
that applying the exceptions to the ownership and voting limitations to 
ISE Holdings following the Reorganization is (i) Reasonable, as 
International Securities Exchange, LLC, the SRO, will be a wholly-owned 
subsidiary of ISE Holdings, and (ii) consistent with the provisions of 
the LLC Agreement that prevent any Person from exercising undue control 
over ISE Stock, LLC, as the Certificate of Incorporation and by-laws of 
ISE Holdings include substantially similar ownership and voting 
limitations (see, for example, Article Fourth, Subdivision III(a) and 
(b) of the ISE Holdings Certificate of Incorporation).
2. Statutory Basis
    ISE believes the proposal is consistent with the requirements of 
the Act and the rules and regulations promulgated thereunder that are 
applicable to a national securities exchange, and in particular, with 
section 6(b) of the Act.\32\ ISE believes that the proposal is 
consistent with section 6(b)(5) of the Act \33\ in that it is designed 
to prevent fraudulent and manipulative acts and practices, to promote 
just and equitable principles of trade, to remove impediments to and 
perfect the mechanism for a free and open market and a national market 
system, and, in general, to protect investors and the public interest. 
In particular, the ISE believes that the proposal is designed to enable 
it to promote competition in the trading of equity securities through 
establishing a new marketplace.
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    \32\ 15 U.S.C. 78f(b).
    \33\ 15 U.S.C. 78f(b)(5).
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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 Act.

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 on this proposal from members, 
participants, or others.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) As the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding, or (ii) as to 
which the Exchange consents, the Commission will:
    A. By order approve the 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 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 e-mail to rule-comments@sec.gov. Please include 

File Number SR-ISE-2006-45 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE, 
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-ISE-2006-45. This 
file number should be included on the subject line if e-mail 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 inspection 
and copying in the Commission's Public Reference

[[Page 45875]]

Room. 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; 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-2006-45 and should be submitted on 
or before August 31, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\34\
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    \34\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-13005 Filed 8-9-06; 8:45 am]

BILLING CODE 8010-01-P
