
[Federal Register Volume 77, Number 94 (Tuesday, May 15, 2012)]
[Notices]
[Pages 28643-28646]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11686]



[[Page 28643]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66949; File No. SR-EDGX-2012-16]


Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating To 
Amending Certain Sections of Its Current Bylaws

May 9, 2012.
    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 April 25, 2012, EDGX Exchange, Inc. (the ``Exchange'' or 
``EDGX'') 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 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 Exchange proposes to amend certain sections of the Amended and 
Restated Bylaws of EDGX Exchange, Inc. (the ``Current Bylaws'') to 
conform with the Exchange's current corporate governance practices. The 
text of the proposed rule change is attached as Exhibit 5 and is 
available on the Exchange's Web site at www.directedge.com, at the 
Exchange's principal office, and at the Public Reference Room of the 
Commission.

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 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 Exchange proposes to amend certain sections of the Current 
Bylaws to conform with the Exchange's current corporate governance 
practices. In addition, the Exchange proposes to address other non-
substantive revisions to reflect changes since the Securities and 
Exchange Commission (the ``SEC'' or the ``Commission'') granted the 
Exchange's registration as a national securities exchange in March 
2010.\3\
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    \3\ See Securities and Exchange Act Release No. 61698 (March 12, 
2010), 75 FR 13151 (March 18, 2010).
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Board of Directors
    Article III, Section 5 of the Current Bylaws state that the Chief 
Executive Officer shall also be the Chairman of the Board of Directors 
(the ``Board''). The Exchange proposes to revise this provision in the 
New Bylaws to state, ``[t]he Directors shall choose among themselves 
who will be the Chairman of the Board (the ``Chairman''), who may also 
be the Chief Executive Officer,'' because the Exchange believes 
separating the two roles is a good corporate governance practice and 
provides the Board additional flexibility when determining the 
Chairman. In addition, the Exchange proposes to add clarifying language 
that states that if the Chief Executive Officer or other member of 
management of the Exchange is the Chairman, then he or she shall not 
participate in executive sessions of the Board. The Exchange believes 
this amendment helps to preserve the purpose of the executive session, 
which is for the Board to meet without the Exchange's management 
present. Similarly, the Exchange proposes to make a conforming 
amendment to Article VII, Section 6, to provide that the Chief 
Executive Officer may be the Chairman of the Board.
Committees of the Board
    The Exchange's Board consists of an Appeals Committee, an Audit 
Committee, a Compensation Committee, an Executive Committee and a 
Regulatory Oversight Committee (collectively, the ``Board 
Committees''). In Article V, the Exchange proposes to amend the Current 
Bylaws to more fully describe the responsibilities of the Board 
Committees and to be consistent with the provisions of the Board 
Committees' charters.
    In Article V, Section 5(a), the Exchange proposes to amend the 
Current Bylaws to state that the Compensation Committee is also 
responsible for assisting the Board in fulfilling its responsibilities 
to ensure the structures of compensation systems of the Exchange do not 
interfere with the Exchange's ability to fulfill its responsibilities 
as a Self Regulatory Organization (``SRO'').
    In Article V, Section 5(b) (proposed to be re-numbered as Section 
5(b)(i)-(vii)), the Exchange proposes to amend the Current Bylaws to 
state that the Audit Committee is also responsible for assisting the 
Board in fulfilling its responsibilities to oversee the financial 
soundness and compliance resources and the effectiveness of financial 
and compliance control processes related to the operation of the 
Exchange; taking appropriate actions to oversee overall corporate 
policy for quality activities and reporting of an SRO, sound business 
risk management practices and ethical behavior; overseeing all 
activities of the Exchange's internal audit function, including 
management's responsiveness to internal audit recommendations and 
selecting and replacing and determining the compensation of the head of 
the Internal Audit Department (or if such position is outsourced, 
selecting and replacing and determining the compensation of the third 
party provider), in consultation with management; and overseeing 
enterprise risk and technology operations, including security and 
business continuity measures. The Exchange also proposes to amend the 
language in Article V, Section 5(b)(iv) and (v), respectively, to 
elaborate on the Audit Committee's responsibility to provide oversight 
over the systems of internal controls, technology and information 
integrity established by management and the Board and the Exchange's 
legal and compliance process as well as to further clarify the Audit 
Committee's responsibilities around independent auditors.
    In Article V, Section 5(c), the Exchange proposes to amend the 
Current Bylaws to elaborate on the Regulatory Oversight Committee's 
duties to assist the Board in fulfilling its responsibilities to 
oversee the adequacy and effectiveness of the Exchange's regulatory and 
SRO responsibilities, including those responsibilities with regard to 
each of its facilities, as defined in Section 3(a)(2) of the Securities 
and Exchange Act of 1934 (the ``Act''). The Exchange also proposes to 
amend the language in Article V, Section 5(c) to clarify that the 
Regulatory Oversight Committee's responsibility to oversee the overall 
effectiveness of the

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Exchange's performance of its regulatory functions.
    In Article V, Section 5(e), the Exchange proposes to amend the 
Current Bylaws to clarify that the Executive Committee is also 
responsible for facilitating coordination of the Board processes among 
other things.
Committees of the Exchange
    The Exchange proposes to amend the title of Article VI from 
``Nominating and Governance Committees'' to ``Committees of the 
Exchange'' in the New Bylaws because this section includes the 
Nominating and Governance Committees and the Exchange Member Nominating 
Committee.
    In Article VI, Section 2, the Exchange proposes to amend the 
Current Bylaws to elaborate on the Nominating and Governance 
Committee's responsibilities to-develop and recommend governance 
policies to the Board and to oversee an orientation for new Directors. 
The Exchange also proposes to amend the language in Article VI, Section 
2 to clarify that the Nominating and Governance Committee nominates 
Director candidates and chairpersons to serve on the Board's Committee. 
Other non-substantive grammatical and stylistic changes are also 
proposed.
    In Article VI, Section 3, the Exchange proposes to amend the 
Current Bylaws to state that the Exchange Member Nominating Committee 
is also responsible for nominating candidates for all other vacant or 
new Exchange Member Director positions on the Board.
Officers, Agents and Employees
    Article VII of the Current Bylaws state that the officers of the 
Exchange include a President, Vice President, Assistant Secretary, 
Treasurer and Assistant Treasurer, among others. However, the Exchange 
has not now or ever designated a person to be a President, Vice 
President, Assistant Secretary, Treasurer or Assistant Treasurer. In 
addition, the duties enumerated in the Current Bylaws are currently 
performed by other employees at the Exchange. Specifically, the Chief 
Executive Officer has general supervision over the operations of the 
Exchange. In addition, the Chief Executive Officer will delegate to 
certain Exchange employees the powers and duties usually incident to 
the office of President and Vice President in the event of the Chief 
Executive Officer's absence. Therefore, the Exchange proposes deleting 
the provisions in Article VII, Sections 7 and 8 that refer to the 
responsibilities of the President and the Vice President since these 
responsibilities are included within the role of the Chief Executive 
Officer, which is generally described in Article VII, Section 6.
    In addition, the Secretary will delegate to certain Exchange 
employees the powers and duties usually incident to the office of 
Secretary in the event of the Secretary's absence. Therefore, the 
Exchange proposes deleting the provisions in Article VII, Section 11 
that refers to the responsibilities of the Assistant Secretary. 
Similarly, the Exchange proposes making a non-substantive stylistic 
change to move the placement of the reference to the ``Secretary'' in 
Article VII, Section 1.
    Lastly, the Chief Financial Officer has general supervision over 
the powers and duties usually incident to the office of the Treasurer. 
The Board approves the appointment of a Chief Financial Officer in the 
form of a Board resolution annually. In addition, the Chief Financial 
Officer will delegate to certain Exchange employees the powers and 
duties usually incident to the office of Treasurer and Assistant 
Treasurer in the event of the Chief Financial Officer's absence. 
Therefore, the Exchange proposes deleting the provisions in Article 
VII, Sections 12 and 13 that refer to the responsibilities of the 
Treasurer and Assistant Treasurer. Similarly, the Exchange proposes 
making a conforming amendment to delete the reference to the Treasurer 
in Article VII, Section 1.
    In addition, the Exchange proposes to replace references to the 
President with the Chief Executive Officer, where applicable, given 
that the Exchange does not have a President and this is generally one 
of the powers or duties that is incident to the office of the Chief 
Executive Officer. The Exchange's proposed revisions include the 
following specific amendments:
    Article III, Section 7(b) of the Current Bylaws states, ``Any 
Director may resign at any time either upon notice of resignation to 
the Chairman, the President or the Secretary.'' The Exchange proposes 
to replace the reference to ``the President'' with ``the Chief 
Executive Officer,'' given that the Exchange does not have a President 
and this is generally one of the powers or duties that is incident to 
the office of the Chief Executive Officer.
    Article III, Section 10(a) of the Current Bylaws states, ``Special 
meetings of the Board may be called on a minimum of two (2) days notice 
to each Director by the Chairman or the President, and shall be called 
by the Secretary upon the written request of three (3) Directors then 
in office.'' The Exchange proposes to replace the reference to ``the 
President'' with ``the Chief Executive Officer,'' given that the 
Exchange does not have a President and this is generally one of the 
powers or duties that is incident to the office of the Chief Executive 
Officer.
    Article IV, Section 2 of the Current Bylaws states, ``Special 
meetings of the stockholders, for any purpose or purposes, may be 
called by the Chairman, the Board or the President, and shall be called 
by the Secretary at the request in writing of stockholders owning not 
less than a majority of the then issued and outstanding capital stock 
of the Company entitled to vote.'' The Exchange proposes to replace the 
reference to ``the President'' with the ``Chief Executive Officer,'' 
given that the Exchange does not have a President and this is generally 
one of the powers or duties that is incident to the office of the Chief 
Executive Officer.
    Article VII, Section 1 of the Current Bylaws states, ``The officers 
of the Company shall include a Chief Executive Officer, a President, a 
Chief Regulatory Officer, a Secretary, a Treasurer and such other 
officers as in the Board's opinion are desirable for the conduct of the 
business of the Company. Any two or more offices may be held by the 
same person, except that the offices of the President and Secretary may 
not be held by the same person.'' The Exchange proposes to delete the 
references to the Treasurer and to replace the reference to ``the 
President'' with ``the Chief Executive Officer,'' given that the 
Exchange does not have a President and this is generally one of the 
powers or duties that is incident to the office of the Chief Executive 
Officer.
    Article VII, Section 3 of the Current Bylaws states, ``Any officer 
may resign at any time upon notice of resignation to the Chairman, the 
President or the Secretary.'' The Exchange proposes to replace the 
reference to ``the President'' with ``the Chief Executive Officer,'' 
given that the Exchange does not have a President and this is generally 
one of the powers or duties that is incident to the office of the Chief 
Executive Officer. In addition, the Exchange proposes to add language 
stating that an officer may also resign to a designee of the Board, if 
none such officers are then-appointed, in order to improve the 
Exchange's governance framework by providing for an additional option 
should the Chief Executive Officer or Secretary not be appointed at the 
time of the officer's resignation.
    In addition, in Article VII, Section 9 (proposed to be re-numbered 
as Section 7), the Exchange proposes to make conforming amendments to 
delete the

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references to ``Executive Vice President'' or ``Senior Vice President'' 
to describe the type of officer that may be designated as the Chief 
Regulatory Officer.
Article XI: Miscellaneous Provisions
    In Article XI, Section 7(a) (proposed to be re-numbered as Section 
6(a)), the Exchange proposes to specifically identify the persons 
authorized as signatories of all checks, drafts, bills of exchange, 
notes or other obligations or orders for the payment of money that are 
signed in the name of the Exchange. The New Bylaws will state, ``All 
checks, drafts, bills of exchange, notes or other obligations or orders 
for the payment of money shall be signed in the name of the Company by 
such officer or officers or person or persons as the Board, or a duly 
authorized committee thereof, may from time to time designate, or by 
the Chief Executive Officer, the Chief Regulatory Officer, the 
Secretary or such other officer or officers or person or persons as the 
Chief Executive Officer, the Chief Regulatory Officer or the Secretary 
may from time to time designate (collectively, the ``Authorized 
Officers'').'' The Exchange proposes to make conforming amendments to 
the provisions in Article XI, Section 7(b) (proposed to be re-numbered 
as Section 6(b)) in order to permit any Authorized Officer of the 
Exchange to execute all applications, written instruments and papers 
required by any department of the United States government or by any 
state, county, municipal or other governmental authority in the name of 
the Company.
    The Current Bylaws do not address stock certificates and 
uncertificated shares. Therefore, the Exchange proposes to add Article 
XI, Section 10 in the New Bylaws to state, ``[t]he shares of the 
Exchange may be represented by certificates, provided that the Board 
may provide by resolution that some or all of any or all classes or 
series of the Exchange's stock shall be uncertificated shares. Every 
holder of stock of the Exchange represented by certificates shall 
otherwise be entitled to have a certificate, in such form as may be 
prescribed by law and by the Board, representing the number of shares 
held by such holder registered in certificate form. Each such 
certificate (if any) shall be signed in a manner that complies with 
Section 158 of the DGCL.'' \4\
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    \4\ The DGCL refers to Delaware General Corporation Law.
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Miscellaneous Non-Substantive Changes
    In addition to the changes set forth above, the Exchange proposes 
to make the following non-substantive changes to the Current Bylaws.
    The Exchange proposes to include the date that the Current Bylaws 
were amended on the title page to notify Members of the effective date 
of the New Bylaws.
    The Exchange proposes to re-number various sections of the Current 
Bylaws in order to eliminate gaps in the numbering and/or lettering of 
the sections resulting from the proposed revisions as described in 
Exchange's rule filing.
    The Exchange proposes to delete the defined terms ``broker'' in 
Article I, paragraph (d), and ``dealer'' in Article I, paragraph (j) 
since neither term is referenced again in the Current Bylaws.
    The Exchange proposes to amend the reference to the ``Holdings 
Operating Agreement'' in Article I, paragraph (u) (proposed to be re-
numbered as paragraph (s)), to notify Members that the Fifth Amended 
and Restated Limited Liability Company Operating Agreement of Direct 
Edge Holdings LLC, that was revised on June 12, 2010, is currently in 
effect.
    In Article I, paragraph (v) (proposed to be re-numbered as 
paragraph (t)), the Exchange proposes to replace the reference to the 
``EDGX Exchange, Inc.'' with ``EDGA Exchange, Inc.'' to correct a 
typographical error.
    The Exchange proposes to delete dated references to time periods 
and events that have expired since the proposal of the New Bylaws. 
Specifically, the Exchange proposes to delete references to the 
Operational Date in Article I, paragraph (y) and Article XI, Section 1 
because the Commission granted the Exchange's registration as a 
national stock exchange on March 12, 2010.\5\ Therefore, these 
references to the Operational Date are obsolete.
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    \5\ See also, supra note 3.
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    Similarly, the Exchange proposes to delete provisions regarding the 
initial Board in Article III, Section 2(a), and the initial Nominating 
and Governance Committee and the initial Exchange Member Nominating 
Committee in Article VI, Section 1, since these appointments have 
already occurred. Similarly, the Exchange proposes deleting Exhibits A 
and B in the Current Bylaws as this information is obsolete. The 
Exchange proposes to omit Exhibits A and B in the New Bylaws because 
the Exchange updates this information through the Commission's Form 1 
amendment (Exhibits C and J),\6\ which is submitted to the Commission 
within 10 days of a change to the Board of Directors or Committee 
members.
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    \6\ The Exchange regularly updates its Form 1 application 
pursuant to Rule 6a-2 of the Act.
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    The Exchange proposes to correct a typographical error in Article 
I, paragraph (cc) (proposed to be re-numbered as paragraph (z)), by 
referencing ``an'' Exchange in the New Bylaws.
    The Exchange proposes to correct a typographical error by deleting 
``and Governance'' in Article III, Section 6(b) when identifying the 
Exchange Member Nominating Committee.
    The Exchange proposes to insert ``of'' and delete ``or'' in Article 
IX, Section 3(a) to correct a typographical error. Therefore, the New 
Bylaws will state, ``* * * the trading in, or operation of, the 
national securities exchange operated by the Company or any other 
organized securities markets that may be operated by the Company, the 
operation of any automated system owned or operated by the Company, and 
the participation in any such system of any or all Persons or the 
trading therein of any or all securities * * *'' (emphasis added).
    In Article XI, Section 9 (proposed to be re-numbered as Section 8), 
the Exchange proposes to clarify that ``PDF or similar transmission,'' 
where the receipt can be confirmed, will satisfy the notice 
requirement.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with the 
requirements of Section 6(b)(1) of the Act,\7\ in general, and furthers 
the objectives of Section 6(b)(1) of the Act and Section 6(b)(5) \8\ of 
the Act 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 Members and 
persons associated with its Members, with the provisions of the Act, 
the rules and regulations thereunder, and the rules of the Exchange; 
and to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, and to remove 
impediments to, and perfect the mechanism of, a free and open market 
and, in general, to protect investors and the public interest.
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    \7\ 15 U.S.C. 78f(b)(1).
    \8\ 15 U.S.C. 78f(b)(5).
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    Specifically, the proposed amendments to certain provisions will 
conform the Current Bylaws with the Exchange's current corporate 
governance practices. In addition, the Exchange's proposed amendments 
address other non-substantive revisions to reflect changes since the 
Commission

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granted the Exchange's registration as a national securities exchange 
in March 2010.\9\
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    \9\ See also, supra note 3.
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    In addition, these proposed amendments will improve efficiency and 
coordination among the Board and its Committee's by revising the 
Current Bylaws to clearly delineate each Committee's responsibilities. 
The proposed amendments will also benefit the Exchange and its Members 
because the New Bylaws will reflect the current governance structure, 
including the responsibilities of its officers thereby increasing the 
transparency of this process.

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 neither solicited nor received written comments on 
the proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) \10\ of the Act and Rule 19b-4(f)(6) \11\ thereunder. The 
proposed rule change effects a change that (A) does not significantly 
affect the protection of investors or the public interest; (B) does not 
impose any significant burden on competition; and (C) by its terms, 
does not become operative for 30 days after the date of the filing, or 
such shorter time as the Commission may designate if consistent with 
the protection of investors and the public interest; provided that the 
self-regulatory organization has given the Commission written notice of 
its intent to file the proposed rule change, along with a brief 
description and text of the proposed rule change, at least five 
business days prior to the date of filing of the proposed rule change, 
or such shorter time as designated by the Commission.\12\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Exchange provided the Commission with written notice of its 
intent to file the proposed rule change, along with a brief description 
and text of the proposed rule change, at least five business days prior 
to the date of filing.
    The proposed amendments to certain provisions of the Current Bylaws 
are designed to conform with the Exchange's current corporate 
governance practices. In addition, the Exchange's proposed amendments 
address other non-substantive revisions to reflect changes since the 
Commission granted the Exchange's registration as a national securities 
exchange in March 2010.\13\ For the foregoing reasons, this rule 
qualifies as a ``non-controversial'' rule change under Rule 19b-
4(f)(6), which renders the proposed rule change effective upon filing 
with the Commission.
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    \13\ See also, supra note 3.
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    EDGX further requests that the Commission waive the 30-day 
operative delay period after which a proposed rule change under Rule 
19b-4(f)(6) becomes operative. The Commission believes that waiving the 
30-day operative delay is consistent with the protection of investors 
and the public interest. It will enable the Exchange to immediately 
adopt the New Bylaws which should provide an enhanced, more transparent 
governance structure for the Exchange and its Members. The Commission 
designates the proposed rule change as operative upon filing.\14\
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    \14\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered
    the proposed rule's impact on efficiency, competition, and 
capital formation. See 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.

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 email to rule-comments@sec.gov. Please include 
File Number SR-EDGX-2012-16 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-EDGX-2012-16. 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 Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; 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-EDGX-2012-16 and should be 
submitted on or before June 5, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-11686 Filed 5-14-12; 8:45 am]
BILLING CODE 8011-01-P


